General sales terms & conditions
1. GENERAL INFORMATION
1.1. Only orders received in writing are valid. Verbal and telephone orders are only valid after written confirmation by email, fax, or postal service.
1.2. Unless otherwise specified in writing, the items forming a proposal made by FBA Gomyl GmbH and FBA Gomyl SL (here below designated « FBA GOMYL ») and, more particularly, prices and production deadlines shall have validity as indicated in the specific quotation "Validity of the offer" with a maximum of 120 days.
1.3. For the acceptance of any order, the customer agrees to comply with the present general conditions. FBA GOMYL’s responsibility shall not be engaged for any measures or provisions which may be contrary or different, emanating from the customer without its prior express approval in writing.
1.4. All orders are firm orders: nonetheless, FBA GOMYL reserves the right to cancel or modify the terms of an order in those cases where the customer’s contractual documents may be contradictory with respect to the present general conditions.
1.5. All documents relative to the order must carry the order number. When several orders are being executed simultaneously, document sets shall be drawn up for each order. Only documents carrying the order number and transmitted to FBA GOMYL before the start of execution of the order shall be understood as engaging FBA GOMYL’s responsibility.
2. CANCELLATION OF ORDER
In the event of cancellation of an order or failing approval of FBA GOMYL by the prime contractor in such a case where FBA GOMYL may be intervening as sub-contractor to the customer, FBA GOMYL shall have the right to claim reimbursement of all expenses engaged for the purpose of engineering studies, manufacturing, etc., as well as payment, in compensation, of 10% of the value of the contract (taxes not included) initially entrusted to FBA GOMYL.
3. SPECIFICATIONS – WARRANTY
The warranty period for products and/or installations supplied by FBA GOMYL is twenty (24) months (unless otherwise agreed upon in the order confirmation or contractual documents), starting from the date indicated as the date of delivery FCA (Incoterms® ICC in force at the date when the contract is made) on the delivery note. The warranty only covers goods and products used in a normal way and correctly maintained in accordance with the maintenance manual and instructions drawn up by FBA GOMYL and periodically inspected, as defined in the maintenance manual, by technicians trained and qualified for this purpose. To benefit from the warranty, the customer shall, without delay, inform FBA GOMYL in writing of any malfunctions or failures ascribed to the installation or product and shall provide FBA GOMYL with all relevant justification as to the reality of the malfunction or failure claims. In particular, the customer shall give FBA GOMYL or any person mandated by FBA GOMYL full access to the installations or products covered by the warranty. The warranty is strictly limited, following inspection of the installation or product by FBA GOMYL, at its convenience, to the repair or replacement of all or parts of the installation or product recognized to be defective, expressly excluding all additional expenses. The warranty coverage is limited to the cost of the parts replaced and the labor used. All travel and accommodation expenses for personnel on the user site as well as expenses related to the risks involved in removal and reassembly and transport of all or any portion of the concerned installation or product to the FBA GOMYL plant and return there from shall be for the account of the warranty beneficiary. Parts replaced or repaired as part of the warranty shall not result in the extension of the warranty.
The warranty shall not apply to any installation or product:
• which has been modified, transformed, or repaired by persons or entities not approved by FBA GOMYL and/or without the prior written approval of FBA GOMYL.
• in the event of failures resulting from insufficient maintenance or supervision, or as a general rule, from any operation on the installation or product which is not compliant with the written instructions detailed in the product manual.
• for defects resulting from normal wear, damage, or accidents caused by the customer or a third party.
Similarly, wear and tear of parts as well as wear parts are not covered by the warranty.
The FBA GOMYL responsibility is strictly limited to the warranty defined above. Recourse to the warranty shall not justify, in any way whatsoever, any delay in payment.
4. SUPPORTS AND ASSISTANCE FOR MAINTENANCE/INSTALLATIONS
4.1. The customer shall provide, at the appropriate time, the project seating drawings and all other information required for the preparation of all the interfaces required for the installation of the BMU, as well as the assembly operations, whether preparation of the supports be the responsibility, or not, of FBA GOMYL within the scope of the contract. Where preparation of the supports is to be carried out by the customer, the customer hereby undertakes to ensure that the supports (concrete tracks, concrete pedestals, structural provisions) are prepared within the appropriate time and are compatible to receive the BMU systems covered by the FBA GOMYL contract.
4.2. Where restoration works are concerned, the customer shall be solely responsible for the condition and quality of the supports. The customer shall guarantee FBA GOMYL that the supports are compliant with the technical specifications and hereby undertakes to make it its personal business to mandate the necessary technical inspection organization to verify the appropriate condition of the supports (concrete tracks, concrete pedestals, structural provisions but not limited to).
5. WORK CONDITIONS
The customer shall provide FBA GOMYL, free of charge, on the site and at the appropriate time, with all the equipment required to carry out the work and, in particular, the necessary collective protection equipment, cranes, lifts, auxiliary tools, machines, materials, and miscellaneous supplies, including water, gas, electricity, heating, and lighting. FBA GOMYL shall specify its needs at least fifteen (15) calendar days prior to the start of the assembly work as concerns the cranes and lifts.
6. RISK TRANSFER AND PROPERTY RESERVATION
Should the goods or products be supplied to the customer and installed by the latter, the delivery shall be made "FCA" = Free Carrier [place of delivery agreed upon] Incoterms® ICC (in force at the date when the contract is made).
The goods or products covered by the order shall remain by express agreement the property of FBA GOMYL up to full payment, and encashment on FBA GOMYL's bank account of the price agreed. During the period between delivery and full payment of the price, the client, by express agreement, shall be understood as a simple consignee of the products covered by the sale and shall remain fully responsible for settling the payments at the agreed deadlines or, failing settlement of a single installment, pay the price in full, or failing this, return the products covered by the sale.
7. DELIVERY TIME & DELIVERY
7.1 - Delivery: delivery is understood as making the goods and products available at the site notified by FBA GOMYL.
7.2 - The delivery time is the time indicated by FBA GOMYL on its acknowledgment of receipt of the order (order confirmation).
7.3 - The delivery times are given for information purposes only and do not represent an absolute commitment.
7.4 - It is expressly agreed that FBA GOMYL shall not be subject to any payment of compensation for the delay.
7.5 a) The customer shall take delivery of its product(s) at the FBA GOMYL premises or the agreed place of delivery within (15) days following notification by FBA GOMYL that the products are ready to be delivered.
At the end of the fifteen (15) day period, and following a final notification by email addressed to the customer requesting the swift and immediate removal of the good(s) or product(s), FBA GOMYL shall have the right to compel the customer to fulfill its obligations, in particular payments. In case of the delivery is reputed done; in such a case, FBA GOMYL will provide for storage of the product(s) at the expense, risks, and perils of the customer.
b) At the end of the time provided for by article a), FBA GOMYL shall have the right, as it may deem useful, to consider the contract as canceled by the customer, with payment installments received from the customer being understood as acquired without prejudice to all other rights. Moreover, FBA GOMYL shall have the right to demand by penal clause an extra payment equal to 12% of the total equipment sale price as compensation. FBA GOMYL shall then have the right, after having advised the customer by registered letter, to dispose of the products as it may deem suitable.
c) The products shall be delivered with their instruction manuals; the user must become familiar with the instruction manual prior to commissioning. The customer shall verify that the documents are effectively in his possession; if not, the customer shall seek to obtain these from FBA GOMYL.
d) Failing to make a claim within a period of one (1) month following the date of delivery, the product shall be reputed to be free of any patent defects.
8. INTELLECTUAL PROPERTY
All drawings, sketches, models, samples, molds, gauges, and tools prepared by and/or entrusted by FBA GOMYL shall remain the full and whole property of FBA GOMYL and shall not, without written authorization, be used by the customer for any other productions other than those covered by the relevant worksite, nor shall there be copied, duplicated or transmitted to a third party.
9. EQUIPMENT LENDING
Should, prior to acceptance by the customer, the goods or product be the subject of a request for lending by one of the worksite actors, the lending shall only be possible following the signature of a lending agreement accepted by the third party requesting the lending, the customer and FBA GOMYL.
In case of a lending agreement, it is recommended to have an agreement on the budget to be provided for bringing the units in "as a new status."
10. ACCEPTANCE AND INSPECTION
Acceptance of the goods or product shall be conducted by the customer no more than one (1) month following initial verification of commissioning which must take place within three (3) months as of FCA delivery of the equipment.
11. PRICE, TERMS AND CONDITIONS, LATE PAYMENT TERMS
The prices indicated in the FBA GOMYL proposal are specified duty-free, not including handling and pro-rata account costs.
Unless otherwise specified, payments shall be net and free of discount and due and payable under the following standard conditions:
• 30% at the time of the order
• 70% at the latest at the time of delivery
Other payment conditions may be agreed upon between the Parties (Seller and Buyer).
Alternatively, the good may be paid through an irrevocable and confirmed Letter of Credit through First Class Bank.
Payments shall be made by bank transfer. The payment deadline is thirty (30) days from the date of invoice. Failure of payment within this deadline shall expose the customer by full right and without prior notice to delay penalties resulting from the application of the legal interest rate according to the EU law of the 29th of March 2013, without prejudice of damages and cost for collection.
12. FORCE MAJEURE
FBA GOMYL shall not be held responsible for any delay or failure to execute one of its obligations within the scope of the contract should the delay or failure be the direct or indirect result of a case of force majeure, such as:
- occurrence of a natural catastrophe
- weather: atmospheric conditions or flooding making the effective accomplishment of the work dangerous or impossible as concerns either the health or safety of workers or the technology of the work to be accomplished
- earthquake, storm, fire, flooding
- armed conflict, war, civil conflict, attacks, terrorist attacks
- work dispute, total or partial strike on the worksite
- work dispute, total or partial strike at the supplier, service provider, shipping company, postal or public services, etc.
- mandatory injunction by a public authority (prohibition to import, embargo)
- manufacturing accidents, broken machines, explosion
- failure of suppliers.
In more general terms, cases of force majeure shall be understood as any case in which FBA GOMYL, due to circumstances independent of its will and beyond its capacity to overcome, is unable to ensure the supplies and services covered by the order. In the event of force majeure, FBA GOMYL shall inform the customer, without delay, of the occurrence of force majeure which, in its judgment, may impact the execution of the contract.
The customer recognizes the confidential nature of the information and data given by FBA GOMYL during the realization of the supplies and services. The customer undertakes to abstain from disclosing and to prevent disclosure, duplication, or use of the information and data for any purposes other than those related to the realization of this contract. This obligation shall remain applicable for a period of fifteen years as of the signature of the contract (or the quotation date).
14. PERSONAL DATA PROTECTION
FBA GOMYL processes personal data (full name, address, email, phone number, …) of its customer’s contacts. The purpose of personal data processing is to perform orders and manage the relationship between FBA GOMYL and the customer. No transfer of personal data to third countries (outside the European Union) or international organizations is intended.
The customer undertakes to inform FBA GOMYL of any update regarding the personal data of the data subject and to inform them of the content of this clause. The data subject benefits from the right to require access to, rectification, erasure of their personal data or restriction to the processing of their personal data or to object to the processing as well as the right to data portability by writing to: firstname.lastname@example.org.
The data subject also has the right to lodge a complaint with the CNPD (National Commission for Data Protection).
FBA GOMYL undertakes to take appropriate technical measures in order to ensure the security and confidentiality of personal data. FBA GOMYL undertakes to keep personal data no longer than necessary for the purposes of this personal data processing and in any case for a maximum period of 10 years from the last products order to FBA GOMYL.
The FBA GOMYL's responsibility shall be limited to the direct material damages caused to the customer which may result from faults attributable to FBA GOMYL in the execution of the contract. FBA GOMYL shall not be responsible for the repair of damage resulting from faults committed by the customer or third parties in relation to the execution of the contract.
Under no circumstances shall FBA GOMYL be required to compensate any immaterial or indirect damages and in particular any loss of operation, profit, possible gains, commercial loss, or lost profits. In such a case where specified penalties and damages have been agreed in common, they shall have a lump sum compensation value, constituting discharge, and shall be exclusive of any other sanction or compensation.
16. JURISDICTION – APPLICABLE LAW In the event of any dispute which cannot be settled by amicable arrangement, the Courts of Spain and/or Germany shall be solely competent. It is expressly agreed that any litigation shall be settled in accordance with the Law of Spain resp. Germany.