General Terms and Conditions of Sale and Warranty

1. DEFINITIONS:

1.1. “Buyer” means the entity to which the Seller supplies the Products under the Contract.
1.2. “Contract” means the purchase order signed by the Buyer and accepted by the Seller in writing or the contractual agreement signed by both parties, for the sale of Products, together with these Terms and Conditions, the Seller’s final offer and the Seller’s order confirmation.
1.3. “Contract Price” means the price stated in the Contract for the sale of the Products , including adjustments (if any) in accordance with the Contract.
1.4. “Insolvency proceedings” means a situation in which a party becomes insolvent and is unable to meet all the payments due to it. An arrangement with creditors covers bankruptcy and suspension of payments situations.
1.5. “Products” means the equipment, parts, materials, supplies, services, software, documentation and other goods or studies which the Seller has agreed to supply to the Buyer under the Contract.
1.6. “Seller” means AIRSEC, S.A. with VAT number ESA08072076, or the entity supplying Products under the Contract.
1.7. “Terms and Conditions” means these “Terms and Conditions of Sale and Warranty of Products” and any attachments which may be incorporated into the Contract together with any amendments or additional provisions indicated in the Seller’s final offer or agreed in writing by the Seller.
1.8. “Fluid” means the air, gas or water to be treated by the Seller as indicated in the Schedule.

The present document establishes the Terms and Conditions governing the Seller, which may be modified, and it is the responsibility of the Buyer to read them periodically, as those in force at the time of the Contract are applicable.

2. ACCEPTANCE:

2.1. The acceptance of the purchase order by the Buyer, the signing of the contractual agreement by the parties, the sale of any Product, implies the express acceptance of these Terms and Conditions by the Buyer.
2.2. The Terms and Conditions will be deemed to have been communicated to the Buyer from the moment the Buyer is informed of the website on which the Terms and Conditions are located or receives an offer from the Seller accompanied by these Terms and Conditions. Alternatively, they shall be deemed to have been communicated if the Buyer has received them in the course of its business relationship with the Seller, in which case they shall be deemed to have been accepted by the Buyer for all purposes at the time of conclusion of the contract.
2.3. Any acceptance of the Seller’s offer is expressly limited to acceptance of these Terms and Conditions, and the Seller expressly rejects any additional or different terms proposed by the Buyer.
2.4. No facility entry form shall modify these Terms and Conditions even if signed by the Seller’s representative.
2.5. Unless otherwise stated in the offer, the Seller’s offer shall expire 30 days from the date of the offer and may be amended or withdrawn by the Seller before receipt of the Buyer’s acceptance of the offer. Civil works, electrical connections and any other supply not reflected in the Agreement will not be included.

3. CANCELLATION:

3.1. The Seller will not accept cancellation of orders accepted by the Buyer, unless the Seller expressly consents in writing.
3.2. In the event that cancellation of the Agreement is authorised, the Buyer shall compensate the Seller for the costs incurred by the Seller in connection with the cancellation, and which have been incurred by the Seller in connection with the Agreement; the Buyer reserves the right to claim compensation for damages.
3.3. The costs incurred are in connection with, but not limited to, preliminary technical office work, administrative work, purchased material, product in process, documentation concerning the Contract.

4. PRICES AND PAYMENT:

4.1. Prices will always be understood EXWorks Montmeló ( Barcelona ),Spain – Incoterms 2010.
4.2. The Seller reserves the right to modify the prices at any time, without prior notice and without having to update the price change in any material published and/or printed by the Seller, or on its website.
4.3. The Seller reserves the right to modify the prices at any time, without prior notice and without having to update the price change in any material published and/or printed by the Seller, or on its website.
4.4. Prices are understood to be net, without taxes
4.5. For each calendar week that the Buyer is late in payment, the Buyer shall pay the Seller a late payment charge of one (1) % on the amount outstanding.
4.6. If requested by the Seller, the Buyer shall establish and maintain in force for its own account a payment guarantee in the form of an irrevocable letter of credit or bank guarantee on first irrevocable demand, allowing pro-rata payments as the Goods are shipped – hereinafter referred to as “Payment Guarantee”, the terms and conditions of which must be accepted by the Seller in advance.
4.7. The Seller is not obliged to commence or continue with the performance of its obligations unless and until all required, valid and effective Payment Guarantees have been received and all relevant partial payments have been received. For each day of delay in receiving the partial payments stipulated in the payment schedule, or in receiving the Payment Guarantee, the Seller shall be entitled to extend the delivery schedule of the Products accordingly.
4.8. If at any time the Seller reasonably determines that the financial condition or payment record of the Buyer does not justify the Seller’s continued performance of its obligations, the Seller shall be entitled to require in advance full or partial payment or otherwise restructure the payments, to apply for additional forms of Payment Guarantees, to suspend performance of its obligations or to terminate the Contract.

5. TAXES AND FEES:

The Buyer shall be responsible for paying all taxes, levies, duties or other charges of any nature whatsoever in connection with the Contract, except those which the Seller expressly assumes in writing in the Contract.

6. DELIVERIES:

6.1. The Seller will deliver the Products to the Buyer in EXWorks Montmeló (Barcelona), Spain- Incoterms 2.010-.
6.2. If the Products delivered do not correspond in quantity, type or price to those indicated on the invoice, the Buyer shall have a period of ten (10) days from receipt to notify the Seller. No return of Products will be accepted without the Seller’s consent.
6.3. The manufacturing and availability deadlines shall not be binding on the Seller. The liability of the Seller for delay in the time of manufacture and availability of the Products shall be limited exclusively to the provisions of these Terms and Conditions.
6.4. Failure by the Seller to comply with the time for manufacture and availability of the Products does not entitle the Buyer to cancel the Contract, and the Buyer expressly waives any action it may be entitled to take for delays in delivery of the Products where these are due to circumstances of force majeure under clause 9, or to circumstances beyond the reasonable control of the Seller.
6.5. In no event shall the Seller be liable for delays in delivery, including but not limited to, acts or omissions of the Seller’s suppliers, alteration of the Seller’s manufacture/production/assembly process for any reason, failure of the Seller’s production/manufacturing/assembly machinery and/or tools to function for any reason, or validation and/or testing of the Products by the Seller.
6.6. In the event that the Buyer takes over the transport, the dates on the invoices shall be references to the ExWorks deadlines, according to point 6.1
6.7. In the event that the Buyer has contracted for start-up, the Buyer shall not delay the payments agreed in the Agreement by giving a maximum of one (1) month from delivery as provided for in paragraph 6.1, at which time an invoice will be issued in respect of such milestone.

7. RISK OF LOSS AND PROPERTY:

7.1. Ownership and risk of loss of the Products shall pass to the Buyer on delivery of the Products in accordance with clause 6.1. Notwithstanding the foregoing, where payment is to be made in instalments, ownership of the Goods shall remain with the Seller until the total price of the Goods has been paid in full by the Buyer.
7.2. If any of the Goods to be delivered under this Agreement and if any of the Buyer’s equipment repaired on the Seller’s premises cannot be sent to or received by the Buyer when ready due to any cause attributable to the Buyer or its other contractors, the Seller may send the Goods and equipment to a storage facility, including storage at the place of manufacture or repair or to an agreed carrier/shipper. If the Seller stores Products or equipment, the following shall apply: (i) title and risk of loss shall pass immediately to the Buyer, if not already transferred, and delivery shall be deemed to have taken place; (ii) any amount otherwise payable to the Seller on delivery or shipment shall be due; (iii) all costs and charges incurred by the Seller in connection with storage shall be payable by the Buyer on presentation of the Seller’s invoices; and (iv) where conditions permit and with payment of all amounts due, the Seller shall make the repaired Products and equipment available to the Buyer for delivery.

8. WARRANTY:

8.1. The Seller warrants that the Goods will meet the mutually agreed specifications and will be delivered free from defects in material and workmanship.
8.2. The warranty for Products shall expire after one (1) year from the date of shipment of the Products. After this period, no claims or returns of any kind will be accepted for this reason.
8.3. If the Products do not satisfy the above warranties, the Seller, at its option, will repair or replace the defective Products, provided that the Buyer notifies the Seller in writing of such dissatisfaction, before the end of the warranty period, and within thirty (30) days after the discovery of the anomaly or defect. The repair, replacement or new performance under warranty by the Seller shall not extend or renew the corresponding warranty period.
8.4. The Buyer shall obtain the Seller’s approval of the specifications of any test it intends to carry out to determine whether a non-conformity exists. The Seller may in any case test for defects by such means as it deems appropriate, without the Buyer being able to hinder the action of the persons appointed by the Seller to test for such non-conformity.
8.5. The Warranty shall not cover (a) those defects and/or malfunctions in the Products caused by the storage, installation, start-up, use, or maintenance of the Products carried out by the Buyer or third parties (b) those defects and/or malfunctions in the Products caused by the quality of the incoming fluid that does not comply with the parameters indicated by the Buyer and used for the design of the Product, and/or those defects and/or malfunctions in the Products, caused by substances/elements/components of the incoming fluid not known to the Seller at a time prior to the submission of the technical offer(c) those defects and/or malfunctions in the Products caused by the use of consumables other than those authorised by the Seller in writing(d) those defects and/or malfunctions in the Products caused by inadequate operating conditions other than the intervals or parameters indicated by the Seller. By way of example, but not limited to, conditions of working pressure, height, temperature, quality of the fluid source, electrical supply voltage and/or conditions of exposure to aggressive environments (e) those repairs, modifications or alterations made to the Products by the Buyer, the end customer, or by persons other than the Seller, without the written consent of the Seller, and/or those repairs, alterations or modifications made to the Goods without following the instructions given by the Seller (f) repair of damage or harm resulting from the use of the Goods in places, environments, or for purposes, where no factors are involved, conditions or characteristics suitable for obtaining optimum performance of the Product (g) normal wear and tear of the Products (h) loss and/or damage to property or persons, related to the installation, start-up, use and/or maintenance of the Products carried out by the Buyer or by third parties (i) damage to the systems or equipment into which the Products are integrated, during periods of faulty operation (j) damage and defects attributable to acts of God or force majeure (as described in clause 9) (k) loss and/or damage caused by improper operating conditions, outside the intervals or parameters indicated by the Seller (l) damage and defects attributable to negligence, improper use or faulty handling by the Buyer or end customer. For the entire range of Products, in addition to any and all of the above exclusions, the warranty will not cover: (a) those defects and/or malfunctions in the Products caused by the failure to install a pre-filter.
8.6. The warranty does not cover the access costs necessary to carry out the Seller’s warranty rectification work (including the removal or replacement of parts and materials, structures or other parts of the Buyer’s premises), assembly/disassembly, installation/reinstallation.
8.7. This warranty does not extend to those products and materials, and components or accessories which have not been manufactured by the Seller or purchased directly from the Seller. This is not a guarantee for consumers or final users and it is only extended to those customers who buy directly the Seller’s products.
8.8. Under no circumstances will the Seller be responsible for any type of claim, demand, complaint and/or administrative sanction that it may receive, as a consequence of: a) the marketing of the Products carried out by the Buyer or third parties; or b) for possible infringements of the industrial and intellectual property rights of third parties; and/or c) for the infringement of the rights of consumers and users. In case of the mentioned claims, the Buyer will keep the Seller unharmed, and will pay and/or allow the debiting from his account of the amounts that are required from the Seller by way of compensation, fine in penalty proceedings, and other expenses that may be incurred, including those of lawyers, lawyers and experts necessary for his defence.
8.9. This clause 8 establishes the exclusive rights and actions in relation to all claims based on flaws or defects of the Products, regardless of when the flaw or defect appears and whether a claim, whatever its description, is based or not on contract, warranty, indemnification, non-contractual liability (including negligence), or any other type of liability. The warranties set out in this clause supersede all other written, oral, implied or statutory warranties and conditions. The Seller shall not accept any terms of warranty other than those expressed herein.

9. FORCE MAJEURE:

9.1. The Seller shall not be liable for or be deemed to be in breach of its obligations under the Contract where the Seller’s performance is delayed or impeded, directly or indirectly, by any cause beyond its reasonable control or by any unforeseen event or which, although foreseeable, could not have been avoided, including but not limited to by an armed conflict, meteorological phenomena, acts or threats of terrorism, epidemics or other causes of generalised affection, strikes or other labour conflicts, acts or omissions of a state authority or of the Buyer or of the Buyer’s contractors or suppliers
9.2. If a force majeure event occurs, the Seller’s compliance schedule will be extended by the amount of time lost due to the event plus such additional time as may be required to overcome the effect of the event.
10. TERMINATION AND SUSPENSION:

10.1. The Seller may suspend or terminate the Contract (or any affected part thereof) immediately for just cause if the Buyer (i) becomes insolvent, or (ii) materially breaches its material obligations under the Contract, including, without limitation, the Buyer’s inability or delay in delivering the Payment Guarantee and making any payment when due, or in complying with any condition of payment.
10.2. If the Agreement (or any part of it) is terminated on the grounds specified in clause 10.1, or for any reason other than a breach by the Seller, the Buyer shall pay the Seller for all Products completed and/or in the course of manufacture, as well as any previous work for the manufacture of such Product, before the effective date of completion, and for the expenses incurred by the Seller in connection with the termination.
10.3. The Buyer and the Seller may terminate the Agreement (or the affected part thereof) by giving twenty (20) days notice if there is an event of force majeure (as described in clause 9) the duration of which exceeds one hundred and twenty (120) days. In such case the Buyer shall pay the Seller the amounts payable under clause 10.2.
10.4. The Buyer shall pay all reasonable expenses incurred by the Seller in connection with a suspension. The timetable for the Seller’s obligations shall be extended for a period of time reasonably necessary to overcome the effects of any suspension

11. COMPENSATION:

Both the Buyer and the Seller (as the “Indemnifying Party”) shall indemnify the other party (as the “Indemnifying Party”) against all claims brought by a third party due to personal injury or damage to the tangible property of that third party, to the extent that they are caused by the negligence of the Indemnifying Party in connection with this Agreement. For the purposes of the Seller’s obligation to indemnify, no part of the Products or the facilities in which the Products are used, is deemed to be the property of any third party.

12. COMPLIANCE WITH STANDARDS:

12.1. The Buyer shall comply with the laws in force concerning the application, operation, use and disposal of the Products.
12.2. The Seller’s obligations are conditional upon the Buyer’s compliance with all laws and regulations governing the control of commercial transactions and other applicable rules. The Buyer shall not tranship, re-export, divert or direct Products except to and from the country of final destination declared by the Buyer and specified as the country of final destination on the Seller’s invoice.
12.3. Notwithstanding any other provision, the Buyer shall obtain, execute and maintain in force in good time all permits, licences, exemptions, submissions of documentation, registrations and other authorisations required for the sale of the Products.

13. LIMITATION OF RESPONSIBILITY:

13.1. The Seller’s total liability for all claims of any kind whatsoever arising out of or in connection with the conclusion, performance or breach of the Agreement, or for any Products or Services shall not exceed either (i) the Contract Price, or (ii) if the Buyer places multiple orders under the Agreement, the price of each particular order for all claims arising out of or in connection with that order.
13.2. The Seller shall in no event be liable for loss of profit, loss of use of the Product, loss of time, loss of profits, business interruption, cost of substitute energy, cost of capital, downtime costs, increased operating costs and/or third party claims against the Buyer.
13.3. All liability of the Seller shall terminate with the expiry of the relevant warranty period. However, where the Buyer may continue to enforce a claim which has been notified prior to that date by commencing legal action or arbitration, as the case may be under this Agreement, prior to the expiry of any limitation rule or other legal limitation of time, but in no event later than one year after the expiry of such warranty period.

14. GENERAL CLAUSES:

14.1. The Products sold by the Seller are designed for use in connection with the activities and/or facilities indicated in the Contract, and the Buyer guarantees that it will not use or allow other parties to use the Products for other purposes without the Seller’s prior written consent. If, in breach of this clause, such use occurs, the Seller disclaims all liability for damage, injury or contamination and the Buyer shall indemnify and hold the Seller harmless against all such liability.
14.2. The following clauses shall survive termination or cancellation of the Agreement: 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15.
14.3. No amendment, revision, termination or waiver of the Agreement shall be binding on the parties unless agreed in writing.
14.4. If any provision of the Contract is found to be void or unenforceable, this shall not affect the rest of the Contract. The Buyer and the Seller will use their best endeavours to replace such invalid or unenforceable provision with a new provision which achieves substantially the same practical and economic effect and is valid and enforceable.

15. INTELLECTUAL AND INDUSTRIAL PROPERTY:

The Buyer acknowledges and agrees that all copyright, trademarks and other industrial and intellectual property rights in the Products, as well as plans, drawings, manuals and documentation provided by the Seller or contained in the Seller’s web site, are the property of AIRSEC S.A., and the Buyer may not use them beyond the purposes set out in the Contract. The Buyer may make use of them in the manner expressly authorised by the Seller in writing.

16. CURRENT LEGISLATION AND CONFLICT RESOLUTION:

16.1. This Contract shall be governed by and interpreted in accordance with the laws of the Spanish State, in accordance with the provisions of Regulation 593/2008 of the European Parliament and of the Council, of 17 June 2008 (Rome I).
16.2. In accordance with Regulation 1215/2012 of the European Parliament and of the Council of 12 December 2012 (Brussels I-bis) and the Lugano II Convention of 30 October 2007, the Seller and the Buyer decide to submit all disputes arising in connection with the Contract, including questions relating to its existence and/or validity will be submitted; (a) if the Products are delivered on Spanish territory, , to the jurisdiction of the Courts and Tribunals of the Seller’s country, and in particular those of the locality where the Seller carries out its commercial and industrial activities (b) if the Products
are delivered outside Spanish territory, will be resolved in the courts of Barcelona, renouncing any other jurisdiction that may correspond to them