TERMS AND CONDITIONS OF SALE
This quotation is subject to all terms and conditions on the face and reverse side hereof and supersedes Buyer’s proposed terms and conditions, if any. This quotation shall become acontract only (a) when signed and delivered by Buyer to BOMBAS ERCOLE MARELLI SRL. – SUNDYNE ILLESCAS (herein after called BEM) within thirty (30) days from date hereof and accepted by BEM at its Illescas ( Spain) office as evidenced by written or telegraphic confirmation by BEM to Buyer, or (b) any conduct of Buyer which recognises the existence of a contract pertaining to the subject matter hereof and accepted by BEM at its illescas (Spain) office as evidenced by written or telegraphic confirmation by BEM to Buyer. These Terms and Conditions shall be exclusively applicable to any delivery by BEM to Buyer. This quotation contains the entire agreement of the parties and all proposals, negotiations, representations or agreements made or entered into, prior to or contemporaneously with this quotation are excluded whether oral or in writing. Prices set forth in this quotation are based upon the terms and conditions set forth herein.
ANY TERMS PROPOSED IN BUYER’S ACCEPTANCE OF THIS QUOTATION WHICH ADD TO, VARY FROM, OR CONFLICT WITH THE TERMS HEREOF ARE HEREBY OBJECTED TO AND REJECTED AND SHALL NOT CONSTITUTE ANY PART OF ANY CONTRACT RESULTING FROM THIS QUOTATION. ANY SUCH PROPOSED TERMS SHALL HAVE NO FORCE OR
EFFECT AND THE TERMS HEREIN SHALL CONSTITUTE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS AND CONDITIONS OF ANY CONTRACT RESULTING FROM THIS QUOTATION AND MAY BE MODIFIED ONLY BY WRITTEN INSTRUMENT EXECUTED BY THE AUTHORIZED REPRESENTATIVES OF BOTH PARTIES.
1. Prices are ex-works factory unless otherwise specified. Purchase prices are stated in EUROS or any mutually agreed currency and payment shall be made in the same currency as in the acknowledgement of order issued by BEM. Payment terms are net thirty (30) days from invoice date unless otherwise specified. BEM reserves the right to modify or withdraw credit terms if the Buyer’s financial condition so requires or if any change affects the Buyer (such as, but not limited to, the form of the company, a transfer of business, a pledge of assets). Any amount not paid by Buyer on its due date shall automatically carry monthly interest for late payment at the EURIBOR rate of the day that the interests are charged multiplied by 1.5 divided by 12.
Liquidated damages or bonds are not applicable.
2. Prices do not include sales, use, excise, turnover, value added or similar tax. Any tax or other governmental charge upon the production, sales, shipment or use of the product which BEM is required to pay or collect from Buyer shall be paid by Buyer to BEM. Buyer shall be responsible for obtaining any necessary governmental clearances, including import and export licenses, which may be required.
3. Insurance coverage is not applicable.
4. BEM shall not be liable for any failure to perform its obligations under any contract resulting from this quotation when such failure arises directly or indirectly from or is contributed to by any acts of God, acts of Buyer, acts of civil or military authority, fire, strikes or other labor disputes, accidents, floods, epidemics, war, riot, delays in transportation, lack or inability to obtain raw materials, components, labor, fuel or supplies, or other circumstances beyond BEM’s reasonable control.
5. Shipping dates are given to the best of BEM’s knowledge, based upon conditions existing at the time any contract resulting from this quotation is entered into and specifications contained therein. BEM will, in good faith, endeavour to ship by the estimated shipping date but shall not be responsible for any delay or any damage arising from failure to ship on the estimated shipping date. If Buyer fails to furnish shipping instructions, BEM will select what is, in its opinion, the most satisfactory routing for the shipment. If Buyer is to pick-up products and has not done so within seven (7) days after notification that they are ready for shipment, BEM may ship the products by commercial carrier. Any prepayment by BEM for freight charges shall be for the account of Buyer and shall be paid by Buyer with and in addition to the purchase price.
6. Transfer of risk of loss with respect thereto shall pass to Buyer upon delivery thereof by BEM based on Incoterms. Nevertheless, title to the products shall be completely passed to the Buyer after full payment of all outstanding invoices.
7. If Buyer has not made a claim to BEM within thirty (30) days after receipt of the products, or within ninety (90) days after shipment from BEM’s facility, whichever shall occur first, the products shall be considered accepted and in full accordance with contract requirements.
8. In addition to warranty against hidden defects, SUNDYNE-MARELLI warrants to Buyer for a period of (12) months from the date of shipment, that any product delivered under any contract resulting from this quotation will, at the time of shipment, be free from defects in material and workmanship. If, within said warranty period, any such product is found by SUNDYNE-MARELLI, following its examination, to be defective in material or workmanship, SUNDYNE-MARELLI’s sole obligation under this warranty will be to repair or replace such defective product at its option and expense. SUNDYNE-MARELLI does not warrant any products, accessories, or components not manufactured by SUNDYNE-MARELLI, but to the extent possible, agrees to provide Buyer with the benefits of the manufacturer’s warranty, if any. SUNDYNE-MARELLI shall not be liable for damage to or wear of products caused in whole or in part by abnormal conditions, improper application, improper lubrication, failure to provide proper inlet conditions of flow, corrosives, abrasives or foreign objects, or other causes external to the SUNDYNE-MARELLI product. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED, OR STATUTORY INCLUDING, BUT NOT BY WAY OF LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OF FITNESS FOR ANY PARTICULAR PURPOSE.
9. In the event Buyer claims that BEM has breached any of its obligations under any contract resulting from this quotation, whether in warranty or otherwise, BEM may request and require return of the product and refund the Buyer’s purchase price upon BEM’s receipt of the returned product. If BEM so requests the return of the product, the product shall be redelivered to BEM in accordance with BEM’s instructions and at BEM’s expense. In the event BEM elects to require return of the product, BEM shall absolutely have no further obligation to Buyer under any contract resulting from this quotation except to refund such purchase price upon redelivery of the product. THE REMEDIES PROVIDED FOR IN THIS AND THE PRECEDING PARAGRAPH SHALL CONSTITUTE THE SOLE RECOURSE OF BUYER AGAINST SUNDYNE-MARELLI FOR BREACH OF ANY OF SUNDYNE-MARELLI’S OBLIGATIONS UNDER ANY CONTRACT RESULTING FROM THIS QUOTATION, WHETHER THE CLAIM IS MADE IN TORT, CONTRACT OR IN ADMIRALTY, INCLUDING CLAIMS BASED ON WARRANTY, NEGLIGENCE, OR OTHERWISE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL SUNDYNE-MARELLI BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, NOR SHALL SUNDYNE-MARELLI’S LIABILITY FOR ANY CLAIMS OR DAMAGE ARISING OUT OF OR CONNECTED WITH ANY CONTRACT RESULTING FROM THIS QUOTATION, OR THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCT, EXCEED THE PURCHASE PRICE OF THE PRODUCT.
10. In the event (1) Buyer modifies any product sold pursuant to any contract resulting from this quotation without the express written consent of BEM; or (2) Buyer fails to implement any changes in the product directed by BEM; or (3) any product to be furnished under any contract resulting from this quotation is made in accordance with drawings, samples or manufacturing specifications provided or designated by Buyer, Buyer agrees to indemnify and hold BEM harmless from any and all claims, demands, actions or causes of action or costs or expenses incurred thereby whether in tort, contract, or admiralty.
11. In the event any product to be furnished under any contract resulting from this quotation is to be made in accordance with drawings, samples or manufacturing specifications provided or designated by Buyer, Buyer agrees to indemnify and hold BEM harmless from any and all damages, costs and expenses arising from a claim that such product furnished to Buyer by BEM, or the use thereof, infringes any Letters Patent, foreign or domestic, and Buyer agrees at its own expense to undertake the defense of any suit against BEM brought upon such claim or claims. In the event any product to be furnished under any contract resulting from this quotation is not to be made in accordance with drawings, samples or manufacturing specifications designated by Buyer, but rather is the design of BEM, BEM agrees to hold Buyer and its customers harmless against any damages awarded by a court of final jurisdiction in any suit for infringement of any Letters Patent, foreign or domestic by reason of the sale or use of such product as furnished by BEM under any contract resulting from this quotation. In the event any claim is asserted or threatened, as to which Buyer may seek indemnification hereunder, BEM shall have the sole right to contest, compromise, litigate, or otherwise dispose of said claim, including the right to substitute non-infringing, products, and Buyer agrees to cooperate with BEM fully with respect thereto. The foregoing undertaking of BEM shall not apply unless BEM shall have been informed in writing immediately by Buyer of any charge or suit alleging such infringement and shall have been given the opportunity to assume the defense thereof, and further, such undertaking shall not apply if (i) the claimed infringement is settled without the consent of BEM, or (ii) the infringement results from the use of a product delivered hereunder which is (a) modified by Buyer or others without authorization by BEM,
or (b) used in combination with a product not delivered by BEM where such infringement would not have occurred from the lone use of the product delivered under any contract resulting from this quotation.
12. Any contract resulting from this quotation shall be governed by the Laws of Spain. Arbitration court could be London / Geneve / Dubai for any dispute on current job. The term “ex-works factory” shall be as defined in the latest version of the Incoterms (Incoterms 2010). No action for breach of sale, any contract resulting from this quotation or any covenant or warranty arising therefrom, shall be brought more than one (1) year after the cause of action has accrued.
13. Any contract resulting from this quotation may not be modified or rescinded except in writing signed by BEM and Buyer. If all or part of any contract resulting from this quotation is terminated by such modification or rescission, Buyer, in the absence of a contrary written agreement between BEM and Buyer, shall pay termination charges based upon cost determined by generally accepted accounting principles plus a reasonable profit, except that any products scheduled for completion within thirty (30) days of Buyer’s request for termination of rescheduling will be accepted and paid for in full by Buyer. Buyer shall reimburse BEM for all costs incurred by BEM in the settlement and payment of claims and administrative expenses by BEM pursuant to any such termination.