Terms & conditions

General terms and conditions of sale for Gamesa Gearbox supplies and services

1. General conditions

1.1. The scope, quality and technical specifications for the goods, equipment, documentation, tasks and services (collectively referred to as “Supplies” or “Tasks”) and the corresponding legal obligations shall be defined solely and exclusively in the agreements of intent by Gamesa Gearbox (hereinafter, the “Vendor”) and the Client, as set out in writing in these terms and conditions (hereinafter, the “Contract”). In the following text, “Party” or “Parties” shall mean the Client or the Vendor, individually, or the Client and the Vendor, collectively.

1.2. The contractual obligations between the Vendor and the Client shall be governed solely and exclusively, and in the following order of priority:

(i) by the special and particular conditions set out in the commercial and technical documentation drawn up by the Vendor (hereinafter, the “Offer”), with the exception of documents of a promotional nature (e.g. catalogues and advertising leaflets) which are not considered binding, unless expressly otherwise specified.
(ii) by the purchase order provided by the Client, with the exception of the terms and conditions of purchase therein; and
(iii) by this Contract.

The Client’s terms and conditions shall only apply where they have been expressly accepted in writing by the Vendor, and the agreements reached by both Parties shall always take precedence.

1.3. The acceptance of any Offer presented by the Vendor or any request for an order by the Client shall entail the acceptance of this Contract by the Client.

1.4. The Vendor shall provide the Client with the necessary information to install, launch, operate and maintain the Supplies.

1.5. The Vendor shall be authorised to supply or execute some of the Tasks through subcontractors.

2. Payment terms and Prices

2.1. The Prices shall be understood to be “ex works” (Incoterms® 2010) and shall exclude packaging, transportation, insurance and any other costs or additions (storage, third-party inspections, etc.). The total price to be paid by the Client under this Contract shall be understood to be the “Contract Price”.

2.2. Except where expressly otherwise specified, should the Vendor undertake assembly or installation, the Client shall cover all necessary additional costs (e.g. travel expenses or allowances) as well as the price agreed.

2.3. The Prices shall not include any indirect taxes, duties, or similar contributions (e.g. property taxes, licences, business activity taxes, taxes on consumption or the use of goods, or value-added tax) which are payable in relation to this Contract. The Client undertakes to pay or reimburse the Vendor for any tax which the Client itself, or any of its subcontractors, must pay.

2.4. All taxes, duties, customs fees, contributions or other social charges to be paid by the Vendor or its subcontractors, or by the staff of the Vendor or its subcontractors, in relation to the execution of this Contract in the country of destination or execution shall be covered by the Client, without prejudice to the provisions of Clause 2.3.

2.5. All payments to the Vendor shall be net payments, free of any deductions (e.g. withheld tax). In the event that the Client is legally bound to withhold any sums, the amount payable by the Client shall be increased by the proportion necessary to guarantee that the Vendor receives a net amount equal to the amount which it would have received without said deduction.

2.6. The Vendor shall be entitled to charge interest for delays, at a rate of 8% over the base interest rate set by the European Central Bank, applicable to the amounts owed, without further notice, and without prejudice to any other rights it may hold.

2.7. The Client shall only be entitled to compensation for claims not under dispute, or which are finally determined to be compliant with Clause 20.

2.8. The prices do not include any potential costs for legalisation of the installation, taxes, obtaining the licences, certifications and approvals granted by Official Bodies, permits, endorsements from professional associations or similar, which are excluded from the scope of the Vendor’s liability.

2.9. The prices are exclusive to the Client, therefore the Client may not conduct sales operations with other clients of the Vendor, in relation to the Supplies contained in the Offer. Should the Client fail to comply with this undertaking, the Vendor shall be entitled to immediately and unilaterally revise the conditions of the Offer presented to the Client.

3. Retention of ownership

3.1. Ownership of any part of the Supplies shall continue to pertain to the Vendor and shall not be conveyed to the Client free of charges and levies until the Client has made full payment for the corresponding part of the Supplies. As long as the foregoing has not been completed, both Parties expressly agree that, even where delivery has been made to the Client, the Vendor shall retain ownership over the Supplies until full payment for the Supplies has been verified.

3.2. Once this Contract enters into effect, the Client shall authorise the Vendor to declare or register the retention of ownership, at the Client’s risk and cost, with public records and archives or similar, which are held by the competent authorities for this purpose, as well as to comply with all the necessary formalities. Throughout the duration of the retention of ownership, the Client shall be obligated to care for and maintain the Supplies, at its own expense and risk, and to take out any insurance policies necessary for their safeguarding (against theft, loss, fire, flooding, and any other risks) and to take all necessary measures to guarantee the prevention of harm to the Vendor’s ownership of said Supplies.

4. Delivery and delays

4.1. The Vendor shall be obligated to comply with the delivery dates, provided that:

a) it has received the information, documentation, permits, etc. required for such purposes from the Client, in due time and proper form,
b) the Client or any third party appointed for such purposes has carried out the tasks required of it in due time and proper form, and
c) the Client has complied with the agreed time frames and payment conditions, as well as with all other contractual obligations.

The time frames for delivery shall be extended in proportion to the time taken by the Client to comply with the conditions listed above.

4.2. Therefore, the Vendor shall not be held liable in any way whatsoever for delays due to the Client, its agent, or any other contractor appointed by the Client, for any reason whatsoever, which may cause the Vendor to fail to comply with the agreed time frames for finalising the tasks or any phases of the tasks. The Client shall hold the Vendor harmless from any obligation with regard to penalties and expenses incurred by the former, due to general, exceptional or regular expenses, suspension or withdrawal, etc., and these shall be reimbursed by the Client.

4.3. The Vendor may make partial deliveries subject to partial acceptance by the Client, and may invoice the Supplies in part, unless the Client, taking the interests of both Parties into account, is unable to reasonably grant partial acceptance.

4.4. In the event that the Vendor, owing solely to its own actions, incurs a delay of over two (2) weeks in making a delivery, the Client shall be entitled to payment of a penalty amounting to 0.5% of the price of the delayed part of the Supplies, for each full week of delay, provided that the Client proves that it has suffered losses as a result of the delay, due to the negligence and intent of the Vendor.

Payment of delay penalties shall be the sole and exclusive remedy, and they shall be capped at 5% of the price of the delayed part of the Supplies. In no event shall this exceed 3% of the Contract Price.

4.5. Any other rights to compensation or claims by the Client owing to delays other than those expressly set out in this Clause, no. 4, and Clause 19.1 shall be excluded.

4.6. In the event that the Client suspends delivery of the Supplies or the execution of the Tasks, the Client shall be obligated to reimburse the Vendor for all costs and expenses incurred owing to the suspension, and shall grant it an extension of the time frame for the completion of said delivery and execution. Should any suspension instigated by the Client last more than one hundred and twenty (120) calendar days, the Vendor may cancel the Contract, while retaining all the rights set out in Clause 19.4.

5. Transfer of risk

5.1. Any risk of accidental loss or damage shall be transferred to the Client, including in the event that the transport of the Supplies is covered by the Vendor, as stated below:

a) in the event that the Supplies are not delivered with assembly or installation: at the time when the Supplies are handed over to the carrier. At the Client’s request and on its behalf, the Vendor shall insure the Supplies against the usual transport risks.
b) in the event that the Supplies are subject to acceptance: at the time when acceptance is granted in accordance with Clause 11.

5.2. The risks shall also be transferred to the Client when the Client refuses to accept delivery of the Supplies without justification, or when the shipping, delivery, installation, launch, start of testing, etc. is delayed for reasons attributable to the Client, or when the commercial operation of said Supplies has begun. From this point, the Supplies shall be stored and insured at the Client’s own expense and risk.

6. Force majeure

6.1. A “Force Majeure Event” is an event whose occurrence is beyond the reasonable control of one of the Parties or its subcontractors, which is unavoidable, even where due diligence is carried out, causing one of the Parties (hereinafter, the “Affected Party”) to be unable to fulfil, in whole or in part, the obligations arising from this Contract, or to be delayed in their fulfilment. Such events include, for illustrative purposes: acts of war, uprisings, civil unrest, terrorism, natural disasters, traffic accidents with load breakages, epidemics, archaeological discoveries, strikes, lockouts, legislative changes, or changes to any type of standards that require compliance by the Affected Party, or any administrative act or prohibition.

6.2. Should a Force Majeure Event occur, it is understood that the Affected Party shall not have failed to fulfil its obligations under this Contract, insofar as its capacity to fulfil its obligations is affected by said Force Majeure Event.

6.3. The Affected Party must inform the other Party, at the earliest reasonable opportunity, that a Force Majeure Event has occurred, of the impact on its obligations, and of the expected dates when said Party shall be able to fulfil its obligations.

6.4. The Party affected by the Force Majeure Event shall make every reasonable effort to attempt to mitigate any damage suffered by the other Party.

6.5. The Parties shall endeavour to fulfil their respective obligations under this Contract, to the extent that this is reasonably possible, whether or not a Force Majeure Event has occurred.

6.6. Should additional costs arise for the Vendor, as a result of its compliance with the instructions provided by the Client in accordance with this Clause, no. 6, the Client must reimburse the Vendor for said costs.

6.7. In the event that a Force Majeure Event occurs and its impact lasts for a period longer than one hundred and twenty (120) calendar days, either of the Parties may notify the other Party of the termination of the Contract, which shall take effect after thirty (30) calendar days have passed from the date of said notification. Should the impact of the Force Majeure Event extend over a period longer than thirty (30) calendar days, the Contract shall be deemed to have been terminated for the Parts of the Supplies which have not yet been delivered or executed.

6.8. In the event that the Contract is terminated owing to a Force Majeure Event, the Vendor shall be entitled to the payment of:
a) the Contract Price, minus costs not incurred, and
b) any additional cost or expense incurred by the Vendor owing to said termination.

7. Environment

7.1. The Vendor shall inform its workers of and comply with all provisions of the environmental regulations in force with regard to the generation and management of waste, spills, air emissions, noise and prevention of ground contamination. Furthermore, the Vendor shall be responsible for compliance with the regulations on the use and storage of chemical products in work areas, and shall be held liable for any failure to fulfil its environmental obligations.

8. Obligations of the Client

8.1. The Client shall be solely responsible for requesting and securing all the necessary licences, permits and approvals required for the launch, acceptance and use of the Supplies.

8.2. Each assembly, installation, construction, build, launch and testing of the Supplies or part of the Supplies outside the Vendor’s premises (hereinafter, the “On-site Tasks”) shall be subject to provision by the Client, promptly and at its own expense and risk, of the following:

a) unrestricted access to the site and to the infrastructure, including access to roadways,
b) assistance in obtaining authorisations and endorsements, work permits and customs permits for the Vendor’s equipment or staff, or those of its subcontractors,
c) the launch of all earth-moving and construction works, as well as other auxiliary services not specific to the Vendor’s business, including the necessary manpower, materials and tools,
d) supply of the equipment, tools and materials necessary for the execution of the On-Site Tasks by the Vendor, such as scaffolding, lifting equipment, etc.
e) supply of power, water, heating and lighting,
f) suitable, dry, closed spaces with locks and keys for the storage of materials, tools, etc., as well as suitable work and staff rooms for the staff of the Vendor or its subcontractors, which shall include telephones and Internet access, as well as appropriate sanitary facilities.
g) all the health, safety and security measures required to protect the staff and property of the Vendor and its subcontractors.

8.3. Prior to starting the On-Site Tasks, the Client:
a) shall make all necessary information available to the Vendor, at its own risk, about the location of electrical power lines, concealed gas and water pipes or similar installations, as well as any and all information it holds in relation to static electricity conditions and to the subsoil of the site, and
b) shall provide all the necessary materials and equipment to start the On-Site Tasks and shall ensure that these can be carried out in accordance with the agreements reached, without interruption.

8.4. The Client understands that the execution of the On-Site Tasks may entail the generation of hazardous waste, as defined in the applicable legislation. The Client shall provide containers that meet all legal requirements at its own expense and risk, and shall handle, store and dispose of said hazardous waste in accordance with the applicable laws.

8.5. For any part of the Supplies executed by the Vendor and/or its subcontractors by time period, the Client shall inform the Vendor, on a weekly basis, of the hours worked by the staff employed by the Vendor and/or its subcontractors and shall confirm immediately, and in writing, the completion or the progress of the Tasks, as applicable.

8.6. Should the On-Site Tasks be delayed for reasons beyond the Vendors’ control, the Client shall cover any additional costs incurred by the Vendor as a result of said delay.

9. Changes and variations to the Supplies

9.1. The Vendor is obligated to deliver the Supplies and/or to execute the Tasks in accordance with the legislation and regulations in force at the time when the Contract is signed.

9.2. In the event that the Supplies are subject to modification due to a change in legal requirements, including amendments to laws, technical regulations, or any rulings or resolutions made by the courts or public authorities, after the Contract has been signed, the Vendor shall be entitled to the appropriate adjustment of the Contract Price and the delivery dates.

9.3. In the event that the Client requests the modification of the Supplies and/or Tasks, the Client must submit a change request in writing to the Vendor. The Vendor shall review said request within a reasonable time frame, and shall notify the Client of the adjustment to the Contract Price and delivery dates, which may be granted further to the change request. In the event that the Client decides to implement the changes requested, the Parties shall agree, in writing and prior to the Vendor launching the execution of the required changes, on the scope of the variation, the adjustment of the Contract Price and the delivery dates, and any other obligations.

10. Receipt of delivery

10.1. The Client shall be obligated to accept delivery of the Supplies, or part thereof, unless said Supplies or part of said Supplies are significantly defective and the Client has provided notification of this to the Vendor within three (3) calendar days following the delivery of said Supplies, without prejudice to Clauses 11 and 12.

10.2. Immediately after receiving the Supplies, the Client must review them and notify the final carrier (copying in the Vendor) of any damage which may have been caused to them and provide evidence of the damage caused.

11. Acceptance

11.1. In the event that the Supplies are subject to acceptance, the Client shall accept the Supplies or part thereof, including the engineering, factory testing, installation, assembly, launch, and any other separate tests following their respective completion.

11.2. Should the Vendor inform the Client that the Supplies, or part thereof, are ready for acceptance, the Client shall accept said Supplies, or the relevant part thereof, in writing, within two (2) weeks from the date of notification. After said period of two (2) weeks has elapsed, the Supplies or the relevant part thereof shall be deemed to have been accepted, unless the Client declares and proves that it has good reason to refuse to accept them.

11.3. In any event, the Supplies, or part thereof, shall be deemed to have been accepted when they have entered into commercial operation, or when the scheduled acceptance date is delayed by more than one hundred and twenty (120) calendar days, for reasons not attributable to the Vendor.

11.4. The criteria for acceptance shall be subject to the technical specifications and requirements previously agreed by both Parties. The Client shall only be entitled to reject the acceptance in the event that any significant deviations from the agreed technical criteria for acceptance, which prevent the Supplies from being put into operation, are detected.

11.5. The Client shall not be entitled to definitively reject the acceptance, unless said deviations cannot be corrected, or the Vendor has finally failed to provide an adequate solution.

11.6. In the event that performance testing, behaviour testing and/or trial runs are to be carried out by the Vendor after the Supplies have been accepted, in accordance with the above paragraphs, the acceptance shall not be affected when one of said tests has not been passed.

11.7. Except for the costs and expenses incurred by the Vendor for staff or infrastructure specific to it, all costs and expenses incurred through inspections, testing, approvals, acceptance processes, etc., shall be covered by the Client.

12. Liability for Defects

12.1. The Vendor shall be liable to the Client, in accordance with this Clause, no. 12, for any design defects (where the Supplies have been designed by the Vendor), for the choice of materials used for the Supplies, and for the manpower involved in the Tasks, including any failure to comply with explicitly guaranteed characteristics or failure to comply with the guarantees due to circumstances existing prior to the risk transfer date (hereinafter, “Defects”).

12.2. Specifically, the following shall not be deemed to be Defects:
a) normal wear and tear owing to the use of the Supplies once the risks have been transferred,
b) minor deviations in the Supplies in relation to the provisions of the specifications,
c) Defects caused by inappropriate management of Supplies, excessive use or other inappropriate use by the Client, or by third parties,
d) Defects arising from failure to follow the instructions or recommendations contained in the assembly, operation and maintenance manuals for the Supplies, or any other documentation provided by the Vendor,
e) Defects arising from an external cause (including any Force Majeure Event),

12.3. The Vendor shall be exempt from any liability in this regard:
a) should the Client or third parties make repairs or changes to the Supplies (including the use of non-original spare parts), without prior written authorisation from the Vendor,
b) should the Client fail to take appropriate measures to mitigate the damage arising from Defects,
c) should the Client fail to notify the Vendor in good time that such Defects exist; and/or
d) should the Client fail to grant the Vendor the opportunity to correct said Defects or to access the Supplies,
e) should any legislative changes occur which require modifications of the Supplies such that they cannot comply with the specifications.

12.4. The guarantee period for Defects is twelve (12) months from the date on which the risks are transferred to the Client.

12.5. The Vendor shall, at its sole discretion, remedy the Defects through repair, restoration or the new execution of the defective part. Alternatively, the Vendor may deduct the amount for the defective part from the Contract Price, except where said Defects substantially prevent the Client from enjoying the full benefit of said Supplies.
The Client must grant the Vendor the necessary opportunities and sufficient time for the Defects to be corrected. To this end, the Client shall make the defective part of the Supplies available to the Vendor on the latter’s premises (where necessary), at its own expense and risk. Where necessary, the Client shall disassemble and reinstall the defective part of the Supplies.

The Vendor’s obligations for the correction of the Defects shall not include disassembly of the components not supplied by the Vendor under the Contract. In any event, the costs of disassembly must be covered by the Client.

12.6. Should the Vendor carry out repair works, and should it ultimately be determined that no Defects exist, the Client shall be obligated to reimburse the Vendor for the cost of these repairs and of the checks to verify the existence of these Defects.

12.7. Any liability of the Vendor for any Defects whatsoever shall lead to the termination of the guarantee period set out in Clause 12.4.

12.8. Except with regard to the guarantees expressly set out in this Contract, the Vendor shall not be held liable for any other explicit or implicit guarantees, including but not limited to guarantees requiring that the Supplies should comply with the “warranty of merchantability” or with “fitness for purpose”.

12.9. Any other liability of the Vendor, or claim made by the Client for Defects other than those expressly set out in this Clause, no. 12, or Clause 19, shall be excluded.

13. Intellectual property

13.1. Except where expressly otherwise stated in this Contract, the Vendor reserves all rights and ownership over the Programmes and all documents provided by the Vendor in relation to this Contract (hereinafter, the “Documents”), as well as the intellectual and industrial property rights (hereinafter, the “Intellectual Property Rights”) over the Supplies and the Documents.

13.2. The Client may only use the Documents without amending them, and insofar as they are necessary for the operation and maintenance of the Supplies by the Client’s own staff, unless the Vendor has expressly consented to any additional use in writing. Specifically, the Client shall not be entitled to use the Supplies or any part thereof for their reproduction, decompilation, investigation of trade secrets (reverse engineering) or manufacturing of any of its components.

13.3. The rights set out in Clause 13.2 may be only be transferred to a third party along with any Supplies transferred to a third party.

13.4. In the event that a third party takes legal action against the Client, due to a violation of Intellectual Property Rights relating to the Supplies, the Vendor may, at its own risk, and as deemed appropriate:
a) obtain the use of the Intellectual Property Rights for the Supplies,
b) modify the Supplies in such a way that the Intellectual Property Rights are not violated, or
c) replace the part of the Supplies which violates the Intellectual Property Rights.

Where the Vendor determines, in its opinion, that none of the above options may reasonably be implemented, the Supplies in question may be returned to the Vendor, which shall reimburse the Client for the price received for said Supplies.

13.5. The Vendor’s obligations, as stated above, are subject to the following conditions:
a) the Client has notified the Vendor immediately, in writing, of the claims lodged by third parties, and provided the Vendor with a copy of each of said communications, notices, or any other text relating to the alleged infringement,
b) the Client does not recognise the infringement and grants the Vendor the necessary powers, information and assistance to defend, resolve or settle the claim or complaint as determined by the Vendor, and
c) the Vendor is granted exclusive control over the defence (including the right to select advisors), as well as the exclusive right to resolve, extend and settle these claims and complaints.

Should the Client cease to use the Supplies or any relevant part thereof to mitigate damage, or for any other major reason, the Client shall be obligated to notify the third parties in writing that said suspension of use does not constitute any acknowledgement of violation of Intellectual Property Rights.

13.6. The Client’s right to make claims shall be excluded where the violation of Intellectual Property Rights is attributable to the Client (or its agents, employees or contractors), for example, due to specific requirements or instructions provided by the latter, the Client having put the Supplies to a use not expected by the Vendor, the Client’s performance of alterations to the Supplies, or the Client’s use of the Supplies along with other equipment.

13.7. All other rights, recourse or means of reparation for violation of the Intellectual Property Rights of third parties other than those set out in this Clause, no. 13, are excluded.

14. Additional liability exclusion

14.1. Any rights of the Client to reparation or to claims against the Vendor which are not expressly set out in this Contract are excluded, irrespective of the legal theory on which any such reparations or claims are based. In no event shall the Vendor be held liable for any consequential damages, loss of benefits, loss of income, loss of use, business interruptions, loss of interest, loss of information or data or for any damages based on claims lodged by the Client’s contractual partners.

14.2. The Vendor’s liability shall be capped at one hundred thousand euros (€100,000) for each event. In any case, the Vendor’s overall liability (i.e. liability for any concepts arising from the Contract, which include but are not limited to penalties, damages and harm, etc.) shall not exceed 7.5% of the Contract Price.

14.3. The limits to liability set out in this Clause, no. 14, or in other Clauses in this Contract, shall not apply where the liability is established by legal mandate or in cases of wilful misconduct.

14.4. The liability limits and exclusions set out herein shall apply for the benefit of subcontractors, employees, executives, agents, or any other person acting as a representative of the Vendor.

14.5. The Client must ensure that any liability held by the Vendor in respect of the Client’s contractual partners does not exceed the limits of liability agreed between the Client and the Vendor in this Contract. The Client shall compensate the Vendor for any claims made by the Client’s contractual partners that exceed the established limits.

14.6. Any obligation of the Vendor to compensate the Client for legitimate third-party claims, in relation to the Supplies under this Contract, shall be subject to the conditions previously established in Clause 13.5 of section a) to c).

14.7. Any type of liability held by the Vendor under this Contract shall cease upon the expiry of the guarantee period for Supply Defects.

15. Transfer

15.1. The Client shall not be entitled to transfer this Contract or any rights or obligations arising from it, without the Vendor’s prior written consent.

15.2. The Vendor shall be entitled to transfer or convey this Contract or part of this Contract to any of the Vendor’s subsidiary companies (hereinafter, “Subsidiaries”), i.e., any company, limited company, or other legal entity (hereinafter, “Company”) controlled by the Vendor, directly or indirectly, or which controls the Vendor or is under the control of a Company which controls the Vendor, directly or indirectly.

15.3. The Vendor shall be entitled to transfer or convey the Contract, or part of the Contract, in the event of sale or restructuring operations, or when the Contract is divided, in order to avoid adverse tax outcomes.

15.4. The Vendor shall also be entitled to transfer the Contract, or part of the Contract, without restriction of the above stipulations, when the obligations under this Contract are applicable for a period longer than eighteen (18) months.

16. Confidentiality

16.1. The Client undertakes not to reveal to third parties any documents, data, technical knowledge or any other information it has received from the Vendor (hereinafter, “Confidential Information”), without prior written consent from the Vendor, and to use said Confidential Information solely for the purposes set out in Clause 13. The Client undertakes to make the Confidential Information available solely to its own employees who require such Information and are bound by the obligation to maintain confidentiality. The Client shall thus be obligated to protect the Confidential Information with at least the same level of care with which it handles its own similar confidential information. Any consent by the Vendor to the Confidential Information being disclosed to third parties shall solely be valid under the condition that the Client enforces upon the third party the obligation to maintain confidentiality as set out in this Contract, and that the Client compensates and holds the Vendor harmless against any liability in the event that this third party violates its obligation to maintain confidentiality.

16.2. This obligation to maintain confidentiality shall not apply to Confidential Information which:
a) is or becomes public knowledge, through no wrongdoing on the part of the Client;
b) is disclosed to the Client, in good faith, by a third party obliged to make such a disclosure;
c) has been independently developed by the Client, without the Confidential Information being required;
d) was known to the Client prior to disclosure by the Vendor, or
e) the law or an administrative order expressly requires it to be disclosed (in which case, the Client must be obligated to duly notify the Vendor in good time of said requirement, such that the Vendor has the opportunity to object to such disclosure to the extent this is possible).

16.3. The Client shall immediately notify the Vendor should it become aware of any undue appropriation or incorrect use of the Confidential Information, and shall reasonably cooperate with the Vendor to attempt to avoid said undue appropriation or misuse of the Confidential Information. The Client shall return all the Confidential Information to the Vendor where so requested by the latter, or on cancellation or termination of this Contract for any reason whatsoever, and shall attest in writing that said Confidential Information has been returned.

16.4. The Client’s obligation to maintain confidentiality shall remain in force beyond this Contract’s date of expiry or termination.

17. Protection of personal data

17.1. In compliance with the applicable regulations on data protection, the Parties are hereby informed that the personal data appearing in this Contract, and any data that is generated during the related contractual relationship, shall be processed with each Party being liable for the conclusion, execution and monitoring of this Contract, and compliance with their respective legal obligations. Processing is necessary for said purposes, and the legal basis for this processing is the execution and monitoring of this contractual relationship and, where applicable, compliance with legal obligations.

17.2. The owners of this data may exercise their rights of access, amendment, deletion, objection, portability and limitations to processing (or any other rights acknowledged by law), by providing written notice to the relevant Party. The data shall be processed throughout the duration of the Contract, and, thus, during the limitation period for any applicable legal or contractual actions. Furthermore, notification is hereby provided that any claim or request related to personal data protection may be presented to the Spanish Data Protection Agency [Agencia Española de Protección de Datos].

18. Suspension

18.1. The Vendor may suspend execution under this Contract in the following cases:
a) the Client’s payment is delayed for more than thirty (30) calendar days,
b) the Vendor has well-founded suspicions that, due to reasons arising after the Contract was concluded, the Client is not in a position to make payments in full and on time, unless the Client provides an appropriate guarantee,
c) the Client has not fulfilled the obligations required of it for the Vendor to execute or deliver the Supplies, or has substantially failed to comply with the Contract in any other manner, or
d) the final delivery or completion of the Supplies has been impeded for more than one hundred and twenty (120) calendar days, due to obstacles arising from export, or any other legal impediments.

18.2. In the event that the Vendor suspends the execution of the Contract in accordance with Clause 18.1, or in the event that the Client suspends the Contract for reasons not attributable to the Vendor, the Client must pay the Vendor for all parts of the Supplies which have already been delivered or executed. In addition, the Client shall reimburse the Vendor for all additional costs and expenses incurred due to said suspension (e.g. payments to subcontractors, costs arising from waiting times, stopping and restarting, etc.). In addition, the Client shall be obligated to return the Supplies or part of the Supplies at the request of the Vendor. Unless expressly otherwise stated by the Vendor, said return, the claim of a property right, or any similar event shall not entail termination of the Contract. Should the suspension last for a duration longer than one hundred and twenty (120) calendar days, the Vendor shall be entitled to cancel the Contract, receiving payment for all tasks already carried out, and compensation for any damages and harm arising.

19. Contract termination

19.1. The Client shall be entitled to cancel the Contract in the following cases only:
a) owing to a delay, where the maximum threshold for penalties as set out in Clause 4.4 is enforceable, the Vendor has not finalised and/or delivered the Supplies within the reasonable additional time frame granted, and the Vendor has not voluntarily opted to continue paying penalties beyond the maximum amount set out in Clause 4.4;
b) should any legal situation arise which limits the Vendor’s full capacity to administer or dispose of its assets, and which negatively affects compliance with the Vendor’s obligations under this Contract, including inter alia: voluntary or forced application for insolvency, suspension of payments, voluntary bankruptcy or liquidation, successful application for legal resolution, or any other insolvency process or general transfer of assets in favour of creditors, provided that said process is not dismissed or suspended within a time frame of fifty (50) days following commencement, and provided that the Vendor has not presented the Client with a surety, guarantee or credit card which is reasonably acceptable to the Client, and which guarantees compliance with the Vendor’s obligations under this Contract;
c) in the event of the Vendor’s substantial and repeated non-compliance with the Contract, without said non-compliance having been remedied within a reasonable time frame following receipt of notification of termination by the Client, or
d) because the Vendor has shown a gross failure to comply with any essential stipulation under this Contract, or has failed to comply with one of its essential obligations in accordance with the provisions of this Contract, provided that said non-compliance (i) is not due to the Client’s prior failure to comply with the Contract and (ii) is ongoing for thirty (30) calendar days following receipt of the Client’s written notification reporting the non-compliance. Nevertheless, when the non-compliance cannot be reasonably remedied within a time frame of thirty (30) calendar days from receipt of the Client’s notification and when the Vendor, within said time frame, begins and diligently continues to remedy the non-compliance until it is resolved, within sixty (60) calendar days, said non-compliance shall not be deemed to be Non-compliance by the Vendor, and the Client shall not be entitled to cancel the Contract.

19.2. Any termination of the Contract by the Client shall only relate to the part of the Supplies which have not been delivered or performed prior to the termination date. Once this Contract has been terminated in accordance with the provisions of Clause 19.1, the Client shall be obligated to pay the Vendor for the parts of the Supplies already delivered or performed prior to termination. In the event that completion of the Tasks must be performed through a third party, the Client shall be entitled to request compensation for the amount of the costs incurred. The provisions set out in Clause 14 shall apply.

19.3. The Vendor shall be entitled to terminate the Contract unilaterally, irrespective of any other rights from which it may benefit, in the following cases:
a) should the Client, on termination of the Contract, come to be under the direct or indirect control of a natural or legal person other than the one with control at the time when the contract was concluded;
b) should any legal situation arise which limits the Client’s full capacity to administer or dispose of its assets, and which negatively affects compliance with the Client’s obligations under this Contract, including, inter alia: voluntary or forced application for insolvency, suspension of payments, voluntary bankruptcy or liquidation, successful application for legal resolution, or any other insolvency process or general transfer of assets in favour of creditors, provided that said process is not dismissed or suspended within a time frame of fifty (50) calendar days following commencement, and provided that the Client has not presented the Vendor with a surety, guarantee or credit card which is reasonably acceptable to the Vendor, and which guarantees compliance with the Client’s obligations under this Contract;
c) when any of the cases for suspension set out in Clause 18.1 arise;
d) when the Client has shown a gross failure to comply with any essential stipulation under this Contract, or has failed to comply with one of its essential obligations in accordance with the provisions of this Contract, provided that said lack of compliance (i) is not due to the Vendor’s prior failure to comply with the Contract and (ii) is ongoing for thirty (30) calendar days following receipt of the Vendor’s written notification reporting the non-compliance. Nevertheless, when the non-compliance cannot be reasonably remedied within a time frame of thirty (30) calendar days from receipt of the Vendor’s notification and when the Client, within said time frame, begins and diligently continues to remedy the non-compliance until it is resolved, within sixty (60) calendar days, said non-compliance shall not be deemed to be Non-compliance by the Client, and the Vendor shall not be entitled to cancel the Contract.
e) should the Contract be suspended for a period longer than one hundred and twenty (120) calendar days as a result of the Client’s non-compliance with its obligations, or
f) in the event of failure to pay one or more invoices within the agreed time frame for payment.

19.4. In the event of the Vendor’s termination of the Contract, the latter shall be entitled to:
a) the Contract Price, minus the costs not incurred, and
b) any additional cost or expense incurred by the Vendor owing to said termination.

In the event that the Client terminates the Contract at its own convenience, the Client must make payment to the Vendor for the Contract Price in full.

20. Dispute resolution and applicable law

20.1. In the event of disputes arising a result of or in relation to this Contract, the Parties’ authorised representatives shall meet at a time and place agreed by both parties, and shall attempt to resolve the disputes through fair negotiation in good faith, within a time frame of thirty (30) calendar days following receipt by one of the Parties of notification from the other Party of said disputes pending resolution. Each of the Parties may require that senior management representatives for each of the Parties are present at such negotiations. Each of the Parties shall be entitled to require of the other Party, at any time, and through written notification, that the dispute be resolved through an alternative dispute resolution procedure in accordance with the following paragraph.

20.2. In the event that the Parties are unable to reach amicable agreement in accordance with the above paragraph, the disputes shall be brought for institutional arbitration before the Court of Arbitration of the Chamber of Commerce of Bilbao, for definitive resolution, in accordance with the rules and statute of said court. The arbitration shall take place in the city of Bilbao, Spain, and will be undertaken in Spanish.
The arbitration decision, which must be justified, shall be definitive and binding for both Parties.

20.3. This Contract, or its content, shall be subject to the laws of Spain, the United Nations Convention on Contracts for the International Sale of Goods (CISG) not being applicable.

21. Export rules

21.1. In the event that the Client transfers goods (by way of example: hardware, software and/or technology, as well as the corresponding documentation, irrespective of the medium through which said transfer is made), tasks and/or services (including all types of technical support) supplied by the Vendor to a third party in any part of the world, the Client must comply with all national and international standards and regulations with regard to export and re-export control. In any event, the Client must comply with the effective export and re-export control standards and regulations with regard to the export and re-export controls applicable to Spain, the European Union and the United States of America.

21.2. Should it be necessary for export control checks to be carried out, the Client shall, further to a request from the Vendor, provide all information without delay relating to the end client, specific destination and concrete use of the goods, tasks and services provided by the Vendor, as well as any export control restrictions which may exist.

21.3. The Client shall compensate and absolve the Vendor from all liability with regard to any claim, process, action, fine, loss, cost, or damage and harm arising from, or relating to, any failure to comply with the export control regulations and standards by the Client, and shall also compensate the Vendor for all losses and expenses arising as a result of the latter, except in cases where such non-compliance was not due to fault by the Client. This provision does not imply a reversal of the burden of proof.

22. Fall-back clause

22.1. The Vendor shall not be obligated to comply with this agreement, should said compliance be impeded by any obstacle arising from national or international foreign trade or customs restrictions, or from any embargoes or other sanctions.

23. Language

23.1. This Contract has been drawn up in Spanish and has subsequently been translated into different languages. In the event of a discrepancy between the wording in Spanish and the wording in any other language, the wording in Spanish shall prevail.

23.2. The Parties shall use Spanish in all documents exchanged under this Contract. Likewise, all notifications and communications issued by the Parties under this Contract shall be issued in Spanish.

24. Miscellaneous

24.1. In the event that any of the provisions of this Contract are partially or fully revoked, or declared to be invalid or null and void, the validity or force of the other provisions shall not be affected as a result. The Parties shall make every reasonable effort to replace said invalid or null and void provision with another provision which is legal, valid, or applicable, and which has the same or similar effect.

24.2. Any amendments, modifications or additions to this Contract shall require written agreement from both Parties in order to be valid.

1.1. The scope, quality and technical specifications for the goods, equipment, documentation, tasks and services (collectively referred to as “Supplies” or “Tasks”) and the corresponding legal obligations shall be defined solely and exclusively in the agreements of intent by Gamesa Gearbox (hereinafter, the “Vendor”) and the Client, as set out in writing in these terms and conditions (hereinafter, the “Contract”). In the following text, “Party” or “Parties” shall mean the Client or the Vendor, individually, or the Client and the Vendor, collectively.

1.2. The contractual obligations between the Vendor and the Client shall be governed solely and exclusively, and in the following order of priority:

(i) by the special and particular conditions set out in the commercial and technical documentation drawn up by the Vendor (hereinafter, the “Offer”), with the exception of documents of a promotional nature (e.g. catalogues and advertising leaflets) which are not considered binding, unless expressly otherwise specified.
(ii) by the purchase order provided by the Client, with the exception of the terms and conditions of purchase therein; and
(iii) by this Contract.

The Client’s terms and conditions shall only apply where they have been expressly accepted in writing by the Vendor, and the agreements reached by both Parties shall always take precedence.

1.3. The acceptance of any Offer presented by the Vendor or any request for an order by the Client shall entail the acceptance of this Contract by the Client.

1.4. The Vendor shall provide the Client with the necessary information to install, launch, operate and maintain the Supplies.

1.5. The Vendor shall be authorised to supply or execute some of the Tasks through subcontractors.

2.1. The Prices shall be understood to be “ex works” (Incoterms® 2010) and shall exclude packaging, transportation, insurance and any other costs or additions (storage, third-party inspections, etc.). The total price to be paid by the Client under this Contract shall be understood to be the “Contract Price”.

2.2. Except where expressly otherwise specified, should the Vendor undertake assembly or installation, the Client shall cover all necessary additional costs (e.g. travel expenses or allowances) as well as the price agreed.

2.3. The Prices shall not include any indirect taxes, duties, or similar contributions (e.g. property taxes, licences, business activity taxes, taxes on consumption or the use of goods, or value-added tax) which are payable in relation to this Contract. The Client undertakes to pay or reimburse the Vendor for any tax which the Client itself, or any of its subcontractors, must pay.

2.4. All taxes, duties, customs fees, contributions or other social charges to be paid by the Vendor or its subcontractors, or by the staff of the Vendor or its subcontractors, in relation to the execution of this Contract in the country of destination or execution shall be covered by the Client, without prejudice to the provisions of Clause 2.3.

2.5. All payments to the Vendor shall be net payments, free of any deductions (e.g. withheld tax). In the event that the Client is legally bound to withhold any sums, the amount payable by the Client shall be increased by the proportion necessary to guarantee that the Vendor receives a net amount equal to the amount which it would have received without said deduction.

2.6. The Vendor shall be entitled to charge interest for delays, at a rate of 8% over the base interest rate set by the European Central Bank, applicable to the amounts owed, without further notice, and without prejudice to any other rights it may hold.

2.7. The Client shall only be entitled to compensation for claims not under dispute, or which are finally determined to be compliant with Clause 20.

2.8. The prices do not include any potential costs for legalisation of the installation, taxes, obtaining the licences, certifications and approvals granted by Official Bodies, permits, endorsements from professional associations or similar, which are excluded from the scope of the Vendor’s liability.

2.9. The prices are exclusive to the Client, therefore the Client may not conduct sales operations with other clients of the Vendor, in relation to the Supplies contained in the Offer. Should the Client fail to comply with this undertaking, the Vendor shall be entitled to immediately and unilaterally revise the conditions of the Offer presented to the Client.

3.1. Ownership of any part of the Supplies shall continue to pertain to the Vendor and shall not be conveyed to the Client free of charges and levies until the Client has made full payment for the corresponding part of the Supplies. As long as the foregoing has not been completed, both Parties expressly agree that, even where delivery has been made to the Client, the Vendor shall retain ownership over the Supplies until full payment for the Supplies has been verified.

3.2. Once this Contract enters into effect, the Client shall authorise the Vendor to declare or register the retention of ownership, at the Client’s risk and cost, with public records and archives or similar, which are held by the competent authorities for this purpose, as well as to comply with all the necessary formalities. Throughout the duration of the retention of ownership, the Client shall be obligated to care for and maintain the Supplies, at its own expense and risk, and to take out any insurance policies necessary for their safeguarding (against theft, loss, fire, flooding, and any other risks) and to take all necessary measures to guarantee the prevention of harm to the Vendor’s ownership of said Supplies.

4.1. The Vendor shall be obligated to comply with the delivery dates, provided that:

a) it has received the information, documentation, permits, etc. required for such purposes from the Client, in due time and proper form,
b) the Client or any third party appointed for such purposes has carried out the tasks required of it in due time and proper form, and
c) the Client has complied with the agreed time frames and payment conditions, as well as with all other contractual obligations.

The time frames for delivery shall be extended in proportion to the time taken by the Client to comply with the conditions listed above.

4.2. Therefore, the Vendor shall not be held liable in any way whatsoever for delays due to the Client, its agent, or any other contractor appointed by the Client, for any reason whatsoever, which may cause the Vendor to fail to comply with the agreed time frames for finalising the tasks or any phases of the tasks. The Client shall hold the Vendor harmless from any obligation with regard to penalties and expenses incurred by the former, due to general, exceptional or regular expenses, suspension or withdrawal, etc., and these shall be reimbursed by the Client.

4.3. The Vendor may make partial deliveries subject to partial acceptance by the Client, and may invoice the Supplies in part, unless the Client, taking the interests of both Parties into account, is unable to reasonably grant partial acceptance.

4.4. In the event that the Vendor, owing solely to its own actions, incurs a delay of over two (2) weeks in making a delivery, the Client shall be entitled to payment of a penalty amounting to 0.5% of the price of the delayed part of the Supplies, for each full week of delay, provided that the Client proves that it has suffered losses as a result of the delay, due to the negligence and intent of the Vendor.

Payment of delay penalties shall be the sole and exclusive remedy, and they shall be capped at 5% of the price of the delayed part of the Supplies. In no event shall this exceed 3% of the Contract Price.

4.5. Any other rights to compensation or claims by the Client owing to delays other than those expressly set out in this Clause, no. 4, and Clause 19.1 shall be excluded.

4.6. In the event that the Client suspends delivery of the Supplies or the execution of the Tasks, the Client shall be obligated to reimburse the Vendor for all costs and expenses incurred owing to the suspension, and shall grant it an extension of the time frame for the completion of said delivery and execution. Should any suspension instigated by the Client last more than one hundred and twenty (120) calendar days, the Vendor may cancel the Contract, while retaining all the rights set out in Clause 19.4.

5.1. Any risk of accidental loss or damage shall be transferred to the Client, including in the event that the transport of the Supplies is covered by the Vendor, as stated below:

a) in the event that the Supplies are not delivered with assembly or installation: at the time when the Supplies are handed over to the carrier. At the Client’s request and on its behalf, the Vendor shall insure the Supplies against the usual transport risks.
b) in the event that the Supplies are subject to acceptance: at the time when acceptance is granted in accordance with Clause 11.

5.2. The risks shall also be transferred to the Client when the Client refuses to accept delivery of the Supplies without justification, or when the shipping, delivery, installation, launch, start of testing, etc. is delayed for reasons attributable to the Client, or when the commercial operation of said Supplies has begun. From this point, the Supplies shall be stored and insured at the Client’s own expense and risk.

6.1. A “Force Majeure Event” is an event whose occurrence is beyond the reasonable control of one of the Parties or its subcontractors, which is unavoidable, even where due diligence is carried out, causing one of the Parties (hereinafter, the “Affected Party”) to be unable to fulfil, in whole or in part, the obligations arising from this Contract, or to be delayed in their fulfilment. Such events include, for illustrative purposes: acts of war, uprisings, civil unrest, terrorism, natural disasters, traffic accidents with load breakages, epidemics, archaeological discoveries, strikes, lockouts, legislative changes, or changes to any type of standards that require compliance by the Affected Party, or any administrative act or prohibition.

6.2. Should a Force Majeure Event occur, it is understood that the Affected Party shall not have failed to fulfil its obligations under this Contract, insofar as its capacity to fulfil its obligations is affected by said Force Majeure Event.

6.3. The Affected Party must inform the other Party, at the earliest reasonable opportunity, that a Force Majeure Event has occurred, of the impact on its obligations, and of the expected dates when said Party shall be able to fulfil its obligations.

6.4. The Party affected by the Force Majeure Event shall make every reasonable effort to attempt to mitigate any damage suffered by the other Party.

6.5. The Parties shall endeavour to fulfil their respective obligations under this Contract, to the extent that this is reasonably possible, whether or not a Force Majeure Event has occurred.

6.6. Should additional costs arise for the Vendor, as a result of its compliance with the instructions provided by the Client in accordance with this Clause, no. 6, the Client must reimburse the Vendor for said costs.

6.7. In the event that a Force Majeure Event occurs and its impact lasts for a period longer than one hundred and twenty (120) calendar days, either of the Parties may notify the other Party of the termination of the Contract, which shall take effect after thirty (30) calendar days have passed from the date of said notification. Should the impact of the Force Majeure Event extend over a period longer than thirty (30) calendar days, the Contract shall be deemed to have been terminated for the Parts of the Supplies which have not yet been delivered or executed.

6.8. In the event that the Contract is terminated owing to a Force Majeure Event, the Vendor shall be entitled to the payment of:
a) the Contract Price, minus costs not incurred, and
b) any additional cost or expense incurred by the Vendor owing to said termination.

7.1. The Vendor shall inform its workers of and comply with all provisions of the environmental regulations in force with regard to the generation and management of waste, spills, air emissions, noise and prevention of ground contamination. Furthermore, the Vendor shall be responsible for compliance with the regulations on the use and storage of chemical products in work areas, and shall be held liable for any failure to fulfil its environmental obligations.

8.1. The Client shall be solely responsible for requesting and securing all the necessary licences, permits and approvals required for the launch, acceptance and use of the Supplies.

8.2. Each assembly, installation, construction, build, launch and testing of the Supplies or part of the Supplies outside the Vendor’s premises (hereinafter, the “On-site Tasks”) shall be subject to provision by the Client, promptly and at its own expense and risk, of the following:

a) unrestricted access to the site and to the infrastructure, including access to roadways,
b) assistance in obtaining authorisations and endorsements, work permits and customs permits for the Vendor’s equipment or staff, or those of its subcontractors,
c) the launch of all earth-moving and construction works, as well as other auxiliary services not specific to the Vendor’s business, including the necessary manpower, materials and tools,
d) supply of the equipment, tools and materials necessary for the execution of the On-Site Tasks by the Vendor, such as scaffolding, lifting equipment, etc.
e) supply of power, water, heating and lighting,
f) suitable, dry, closed spaces with locks and keys for the storage of materials, tools, etc., as well as suitable work and staff rooms for the staff of the Vendor or its subcontractors, which shall include telephones and Internet access, as well as appropriate sanitary facilities.
g) all the health, safety and security measures required to protect the staff and property of the Vendor and its subcontractors.

8.3. Prior to starting the On-Site Tasks, the Client:
a) shall make all necessary information available to the Vendor, at its own risk, about the location of electrical power lines, concealed gas and water pipes or similar installations, as well as any and all information it holds in relation to static electricity conditions and to the subsoil of the site, and
b) shall provide all the necessary materials and equipment to start the On-Site Tasks and shall ensure that these can be carried out in accordance with the agreements reached, without interruption.

8.4. The Client understands that the execution of the On-Site Tasks may entail the generation of hazardous waste, as defined in the applicable legislation. The Client shall provide containers that meet all legal requirements at its own expense and risk, and shall handle, store and dispose of said hazardous waste in accordance with the applicable laws.

8.5. For any part of the Supplies executed by the Vendor and/or its subcontractors by time period, the Client shall inform the Vendor, on a weekly basis, of the hours worked by the staff employed by the Vendor and/or its subcontractors and shall confirm immediately, and in writing, the completion or the progress of the Tasks, as applicable.

8.6. Should the On-Site Tasks be delayed for reasons beyond the Vendors’ control, the Client shall cover any additional costs incurred by the Vendor as a result of said delay.

9.1. The Vendor is obligated to deliver the Supplies and/or to execute the Tasks in accordance with the legislation and regulations in force at the time when the Contract is signed.

9.2. In the event that the Supplies are subject to modification due to a change in legal requirements, including amendments to laws, technical regulations, or any rulings or resolutions made by the courts or public authorities, after the Contract has been signed, the Vendor shall be entitled to the appropriate adjustment of the Contract Price and the delivery dates.

9.3. In the event that the Client requests the modification of the Supplies and/or Tasks, the Client must submit a change request in writing to the Vendor. The Vendor shall review said request within a reasonable time frame, and shall notify the Client of the adjustment to the Contract Price and delivery dates, which may be granted further to the change request. In the event that the Client decides to implement the changes requested, the Parties shall agree, in writing and prior to the Vendor launching the execution of the required changes, on the scope of the variation, the adjustment of the Contract Price and the delivery dates, and any other obligations.

10.1. The Client shall be obligated to accept delivery of the Supplies, or part thereof, unless said Supplies or part of said Supplies are significantly defective and the Client has provided notification of this to the Vendor within three (3) calendar days following the delivery of said Supplies, without prejudice to Clauses 11 and 12.

10.2. Immediately after receiving the Supplies, the Client must review them and notify the final carrier (copying in the Vendor) of any damage which may have been caused to them and provide evidence of the damage caused.

11.1. In the event that the Supplies are subject to acceptance, the Client shall accept the Supplies or part thereof, including the engineering, factory testing, installation, assembly, launch, and any other separate tests following their respective completion.

11.2. Should the Vendor inform the Client that the Supplies, or part thereof, are ready for acceptance, the Client shall accept said Supplies, or the relevant part thereof, in writing, within two (2) weeks from the date of notification. After said period of two (2) weeks has elapsed, the Supplies or the relevant part thereof shall be deemed to have been accepted, unless the Client declares and proves that it has good reason to refuse to accept them.

11.3. In any event, the Supplies, or part thereof, shall be deemed to have been accepted when they have entered into commercial operation, or when the scheduled acceptance date is delayed by more than one hundred and twenty (120) calendar days, for reasons not attributable to the Vendor.

11.4. The criteria for acceptance shall be subject to the technical specifications and requirements previously agreed by both Parties. The Client shall only be entitled to reject the acceptance in the event that any significant deviations from the agreed technical criteria for acceptance, which prevent the Supplies from being put into operation, are detected.

11.5. The Client shall not be entitled to definitively reject the acceptance, unless said deviations cannot be corrected, or the Vendor has finally failed to provide an adequate solution.

11.6. In the event that performance testing, behaviour testing and/or trial runs are to be carried out by the Vendor after the Supplies have been accepted, in accordance with the above paragraphs, the acceptance shall not be affected when one of said tests has not been passed.

11.7. Except for the costs and expenses incurred by the Vendor for staff or infrastructure specific to it, all costs and expenses incurred through inspections, testing, approvals, acceptance processes, etc., shall be covered by the Client.

12.1. The Vendor shall be liable to the Client, in accordance with this Clause, no. 12, for any design defects (where the Supplies have been designed by the Vendor), for the choice of materials used for the Supplies, and for the manpower involved in the Tasks, including any failure to comply with explicitly guaranteed characteristics or failure to comply with the guarantees due to circumstances existing prior to the risk transfer date (hereinafter, “Defects”).

12.2. Specifically, the following shall not be deemed to be Defects:
a) normal wear and tear owing to the use of the Supplies once the risks have been transferred,
b) minor deviations in the Supplies in relation to the provisions of the specifications,
c) Defects caused by inappropriate management of Supplies, excessive use or other inappropriate use by the Client, or by third parties,
d) Defects arising from failure to follow the instructions or recommendations contained in the assembly, operation and maintenance manuals for the Supplies, or any other documentation provided by the Vendor,
e) Defects arising from an external cause (including any Force Majeure Event),

12.3. The Vendor shall be exempt from any liability in this regard:
a) should the Client or third parties make repairs or changes to the Supplies (including the use of non-original spare parts), without prior written authorisation from the Vendor,
b) should the Client fail to take appropriate measures to mitigate the damage arising from Defects,
c) should the Client fail to notify the Vendor in good time that such Defects exist; and/or
d) should the Client fail to grant the Vendor the opportunity to correct said Defects or to access the Supplies,
e) should any legislative changes occur which require modifications of the Supplies such that they cannot comply with the specifications.

12.4. The guarantee period for Defects is twelve (12) months from the date on which the risks are transferred to the Client.

12.5. The Vendor shall, at its sole discretion, remedy the Defects through repair, restoration or the new execution of the defective part. Alternatively, the Vendor may deduct the amount for the defective part from the Contract Price, except where said Defects substantially prevent the Client from enjoying the full benefit of said Supplies.
The Client must grant the Vendor the necessary opportunities and sufficient time for the Defects to be corrected. To this end, the Client shall make the defective part of the Supplies available to the Vendor on the latter’s premises (where necessary), at its own expense and risk. Where necessary, the Client shall disassemble and reinstall the defective part of the Supplies.

The Vendor’s obligations for the correction of the Defects shall not include disassembly of the components not supplied by the Vendor under the Contract. In any event, the costs of disassembly must be covered by the Client.

12.6. Should the Vendor carry out repair works, and should it ultimately be determined that no Defects exist, the Client shall be obligated to reimburse the Vendor for the cost of these repairs and of the checks to verify the existence of these Defects.

12.7. Any liability of the Vendor for any Defects whatsoever shall lead to the termination of the guarantee period set out in Clause 12.4.

12.8. Except with regard to the guarantees expressly set out in this Contract, the Vendor shall not be held liable for any other explicit or implicit guarantees, including but not limited to guarantees requiring that the Supplies should comply with the “warranty of merchantability” or with “fitness for purpose”.

12.9. Any other liability of the Vendor, or claim made by the Client for Defects other than those expressly set out in this Clause, no. 12, or Clause 19, shall be excluded.

13.1. Except where expressly otherwise stated in this Contract, the Vendor reserves all rights and ownership over the Programmes and all documents provided by the Vendor in relation to this Contract (hereinafter, the “Documents”), as well as the intellectual and industrial property rights (hereinafter, the “Intellectual Property Rights”) over the Supplies and the Documents.

13.2. The Client may only use the Documents without amending them, and insofar as they are necessary for the operation and maintenance of the Supplies by the Client’s own staff, unless the Vendor has expressly consented to any additional use in writing. Specifically, the Client shall not be entitled to use the Supplies or any part thereof for their reproduction, decompilation, investigation of trade secrets (reverse engineering) or manufacturing of any of its components.

13.3. The rights set out in Clause 13.2 may be only be transferred to a third party along with any Supplies transferred to a third party.

13.4. In the event that a third party takes legal action against the Client, due to a violation of Intellectual Property Rights relating to the Supplies, the Vendor may, at its own risk, and as deemed appropriate:
a) obtain the use of the Intellectual Property Rights for the Supplies,
b) modify the Supplies in such a way that the Intellectual Property Rights are not violated, or
c) replace the part of the Supplies which violates the Intellectual Property Rights.

Where the Vendor determines, in its opinion, that none of the above options may reasonably be implemented, the Supplies in question may be returned to the Vendor, which shall reimburse the Client for the price received for said Supplies.

13.5. The Vendor’s obligations, as stated above, are subject to the following conditions:
a) the Client has notified the Vendor immediately, in writing, of the claims lodged by third parties, and provided the Vendor with a copy of each of said communications, notices, or any other text relating to the alleged infringement,
b) the Client does not recognise the infringement and grants the Vendor the necessary powers, information and assistance to defend, resolve or settle the claim or complaint as determined by the Vendor, and
c) the Vendor is granted exclusive control over the defence (including the right to select advisors), as well as the exclusive right to resolve, extend and settle these claims and complaints.

Should the Client cease to use the Supplies or any relevant part thereof to mitigate damage, or for any other major reason, the Client shall be obligated to notify the third parties in writing that said suspension of use does not constitute any acknowledgement of violation of Intellectual Property Rights.

13.6. The Client’s right to make claims shall be excluded where the violation of Intellectual Property Rights is attributable to the Client (or its agents, employees or contractors), for example, due to specific requirements or instructions provided by the latter, the Client having put the Supplies to a use not expected by the Vendor, the Client’s performance of alterations to the Supplies, or the Client’s use of the Supplies along with other equipment.

13.7. All other rights, recourse or means of reparation for violation of the Intellectual Property Rights of third parties other than those set out in this Clause, no. 13, are excluded.

14.1. Any rights of the Client to reparation or to claims against the Vendor which are not expressly set out in this Contract are excluded, irrespective of the legal theory on which any such reparations or claims are based. In no event shall the Vendor be held liable for any consequential damages, loss of benefits, loss of income, loss of use, business interruptions, loss of interest, loss of information or data or for any damages based on claims lodged by the Client’s contractual partners.

14.2. The Vendor’s liability shall be capped at one hundred thousand euros (€100,000) for each event. In any case, the Vendor’s overall liability (i.e. liability for any concepts arising from the Contract, which include but are not limited to penalties, damages and harm, etc.) shall not exceed 7.5% of the Contract Price.

14.3. The limits to liability set out in this Clause, no. 14, or in other Clauses in this Contract, shall not apply where the liability is established by legal mandate or in cases of wilful misconduct.

14.4. The liability limits and exclusions set out herein shall apply for the benefit of subcontractors, employees, executives, agents, or any other person acting as a representative of the Vendor.

14.5. The Client must ensure that any liability held by the Vendor in respect of the Client’s contractual partners does not exceed the limits of liability agreed between the Client and the Vendor in this Contract. The Client shall compensate the Vendor for any claims made by the Client’s contractual partners that exceed the established limits.

14.6. Any obligation of the Vendor to compensate the Client for legitimate third-party claims, in relation to the Supplies under this Contract, shall be subject to the conditions previously established in Clause 13.5 of section a) to c).

14.7. Any type of liability held by the Vendor under this Contract shall cease upon the expiry of the guarantee period for Supply Defects.

15.1. The Client shall not be entitled to transfer this Contract or any rights or obligations arising from it, without the Vendor’s prior written consent.

15.2. The Vendor shall be entitled to transfer or convey this Contract or part of this Contract to any of the Vendor’s subsidiary companies (hereinafter, “Subsidiaries”), i.e., any company, limited company, or other legal entity (hereinafter, “Company”) controlled by the Vendor, directly or indirectly, or which controls the Vendor or is under the control of a Company which controls the Vendor, directly or indirectly.

15.3. The Vendor shall be entitled to transfer or convey the Contract, or part of the Contract, in the event of sale or restructuring operations, or when the Contract is divided, in order to avoid adverse tax outcomes.

15.4. The Vendor shall also be entitled to transfer the Contract, or part of the Contract, without restriction of the above stipulations, when the obligations under this Contract are applicable for a period longer than eighteen (18) months.

16.1. The Client undertakes not to reveal to third parties any documents, data, technical knowledge or any other information it has received from the Vendor (hereinafter, “Confidential Information”), without prior written consent from the Vendor, and to use said Confidential Information solely for the purposes set out in Clause 13. The Client undertakes to make the Confidential Information available solely to its own employees who require such Information and are bound by the obligation to maintain confidentiality. The Client shall thus be obligated to protect the Confidential Information with at least the same level of care with which it handles its own similar confidential information. Any consent by the Vendor to the Confidential Information being disclosed to third parties shall solely be valid under the condition that the Client enforces upon the third party the obligation to maintain confidentiality as set out in this Contract, and that the Client compensates and holds the Vendor harmless against any liability in the event that this third party violates its obligation to maintain confidentiality.

16.2. This obligation to maintain confidentiality shall not apply to Confidential Information which:
a) is or becomes public knowledge, through no wrongdoing on the part of the Client;
b) is disclosed to the Client, in good faith, by a third party obliged to make such a disclosure;
c) has been independently developed by the Client, without the Confidential Information being required;
d) was known to the Client prior to disclosure by the Vendor, or
e) the law or an administrative order expressly requires it to be disclosed (in which case, the Client must be obligated to duly notify the Vendor in good time of said requirement, such that the Vendor has the opportunity to object to such disclosure to the extent this is possible).

16.3. The Client shall immediately notify the Vendor should it become aware of any undue appropriation or incorrect use of the Confidential Information, and shall reasonably cooperate with the Vendor to attempt to avoid said undue appropriation or misuse of the Confidential Information. The Client shall return all the Confidential Information to the Vendor where so requested by the latter, or on cancellation or termination of this Contract for any reason whatsoever, and shall attest in writing that said Confidential Information has been returned.

16.4. The Client’s obligation to maintain confidentiality shall remain in force beyond this Contract’s date of expiry or termination.

17.1. In compliance with the applicable regulations on data protection, the Parties are hereby informed that the personal data appearing in this Contract, and any data that is generated during the related contractual relationship, shall be processed with each Party being liable for the conclusion, execution and monitoring of this Contract, and compliance with their respective legal obligations. Processing is necessary for said purposes, and the legal basis for this processing is the execution and monitoring of this contractual relationship and, where applicable, compliance with legal obligations.

17.2. The owners of this data may exercise their rights of access, amendment, deletion, objection, portability and limitations to processing (or any other rights acknowledged by law), by providing written notice to the relevant Party. The data shall be processed throughout the duration of the Contract, and, thus, during the limitation period for any applicable legal or contractual actions. Furthermore, notification is hereby provided that any claim or request related to personal data protection may be presented to the Spanish Data Protection Agency [Agencia Española de Protección de Datos].

18.1. The Vendor may suspend execution under this Contract in the following cases:
a) the Client’s payment is delayed for more than thirty (30) calendar days,
b) the Vendor has well-founded suspicions that, due to reasons arising after the Contract was concluded, the Client is not in a position to make payments in full and on time, unless the Client provides an appropriate guarantee,
c) the Client has not fulfilled the obligations required of it for the Vendor to execute or deliver the Supplies, or has substantially failed to comply with the Contract in any other manner, or
d) the final delivery or completion of the Supplies has been impeded for more than one hundred and twenty (120) calendar days, due to obstacles arising from export, or any other legal impediments.

18.2. In the event that the Vendor suspends the execution of the Contract in accordance with Clause 18.1, or in the event that the Client suspends the Contract for reasons not attributable to the Vendor, the Client must pay the Vendor for all parts of the Supplies which have already been delivered or executed. In addition, the Client shall reimburse the Vendor for all additional costs and expenses incurred due to said suspension (e.g. payments to subcontractors, costs arising from waiting times, stopping and restarting, etc.). In addition, the Client shall be obligated to return the Supplies or part of the Supplies at the request of the Vendor. Unless expressly otherwise stated by the Vendor, said return, the claim of a property right, or any similar event shall not entail termination of the Contract. Should the suspension last for a duration longer than one hundred and twenty (120) calendar days, the Vendor shall be entitled to cancel the Contract, receiving payment for all tasks already carried out, and compensation for any damages and harm arising.

19.1. The Client shall be entitled to cancel the Contract in the following cases only:
a) owing to a delay, where the maximum threshold for penalties as set out in Clause 4.4 is enforceable, the Vendor has not finalised and/or delivered the Supplies within the reasonable additional time frame granted, and the Vendor has not voluntarily opted to continue paying penalties beyond the maximum amount set out in Clause 4.4;
b) should any legal situation arise which limits the Vendor’s full capacity to administer or dispose of its assets, and which negatively affects compliance with the Vendor’s obligations under this Contract, including inter alia: voluntary or forced application for insolvency, suspension of payments, voluntary bankruptcy or liquidation, successful application for legal resolution, or any other insolvency process or general transfer of assets in favour of creditors, provided that said process is not dismissed or suspended within a time frame of fifty (50) days following commencement, and provided that the Vendor has not presented the Client with a surety, guarantee or credit card which is reasonably acceptable to the Client, and which guarantees compliance with the Vendor’s obligations under this Contract;
c) in the event of the Vendor’s substantial and repeated non-compliance with the Contract, without said non-compliance having been remedied within a reasonable time frame following receipt of notification of termination by the Client, or
d) because the Vendor has shown a gross failure to comply with any essential stipulation under this Contract, or has failed to comply with one of its essential obligations in accordance with the provisions of this Contract, provided that said non-compliance (i) is not due to the Client’s prior failure to comply with the Contract and (ii) is ongoing for thirty (30) calendar days following receipt of the Client’s written notification reporting the non-compliance. Nevertheless, when the non-compliance cannot be reasonably remedied within a time frame of thirty (30) calendar days from receipt of the Client’s notification and when the Vendor, within said time frame, begins and diligently continues to remedy the non-compliance until it is resolved, within sixty (60) calendar days, said non-compliance shall not be deemed to be Non-compliance by the Vendor, and the Client shall not be entitled to cancel the Contract.

19.2. Any termination of the Contract by the Client shall only relate to the part of the Supplies which have not been delivered or performed prior to the termination date. Once this Contract has been terminated in accordance with the provisions of Clause 19.1, the Client shall be obligated to pay the Vendor for the parts of the Supplies already delivered or performed prior to termination. In the event that completion of the Tasks must be performed through a third party, the Client shall be entitled to request compensation for the amount of the costs incurred. The provisions set out in Clause 14 shall apply.

19.3. The Vendor shall be entitled to terminate the Contract unilaterally, irrespective of any other rights from which it may benefit, in the following cases:
a) should the Client, on termination of the Contract, come to be under the direct or indirect control of a natural or legal person other than the one with control at the time when the contract was concluded;
b) should any legal situation arise which limits the Client’s full capacity to administer or dispose of its assets, and which negatively affects compliance with the Client’s obligations under this Contract, including, inter alia: voluntary or forced application for insolvency, suspension of payments, voluntary bankruptcy or liquidation, successful application for legal resolution, or any other insolvency process or general transfer of assets in favour of creditors, provided that said process is not dismissed or suspended within a time frame of fifty (50) calendar days following commencement, and provided that the Client has not presented the Vendor with a surety, guarantee or credit card which is reasonably acceptable to the Vendor, and which guarantees compliance with the Client’s obligations under this Contract;
c) when any of the cases for suspension set out in Clause 18.1 arise;
d) when the Client has shown a gross failure to comply with any essential stipulation under this Contract, or has failed to comply with one of its essential obligations in accordance with the provisions of this Contract, provided that said lack of compliance (i) is not due to the Vendor’s prior failure to comply with the Contract and (ii) is ongoing for thirty (30) calendar days following receipt of the Vendor’s written notification reporting the non-compliance. Nevertheless, when the non-compliance cannot be reasonably remedied within a time frame of thirty (30) calendar days from receipt of the Vendor’s notification and when the Client, within said time frame, begins and diligently continues to remedy the non-compliance until it is resolved, within sixty (60) calendar days, said non-compliance shall not be deemed to be Non-compliance by the Client, and the Vendor shall not be entitled to cancel the Contract.
e) should the Contract be suspended for a period longer than one hundred and twenty (120) calendar days as a result of the Client’s non-compliance with its obligations, or
f) in the event of failure to pay one or more invoices within the agreed time frame for payment.

19.4. In the event of the Vendor’s termination of the Contract, the latter shall be entitled to:
a) the Contract Price, minus the costs not incurred, and
b) any additional cost or expense incurred by the Vendor owing to said termination.

In the event that the Client terminates the Contract at its own convenience, the Client must make payment to the Vendor for the Contract Price in full.

20.1. In the event of disputes arising a result of or in relation to this Contract, the Parties’ authorised representatives shall meet at a time and place agreed by both parties, and shall attempt to resolve the disputes through fair negotiation in good faith, within a time frame of thirty (30) calendar days following receipt by one of the Parties of notification from the other Party of said disputes pending resolution. Each of the Parties may require that senior management representatives for each of the Parties are present at such negotiations. Each of the Parties shall be entitled to require of the other Party, at any time, and through written notification, that the dispute be resolved through an alternative dispute resolution procedure in accordance with the following paragraph.

20.2. In the event that the Parties are unable to reach amicable agreement in accordance with the above paragraph, the disputes shall be brought for institutional arbitration before the Court of Arbitration of the Chamber of Commerce of Bilbao, for definitive resolution, in accordance with the rules and statute of said court. The arbitration shall take place in the city of Bilbao, Spain, and will be undertaken in Spanish.
The arbitration decision, which must be justified, shall be definitive and binding for both Parties.

20.3. This Contract, or its content, shall be subject to the laws of Spain, the United Nations Convention on Contracts for the International Sale of Goods (CISG) not being applicable.

21.1. In the event that the Client transfers goods (by way of example: hardware, software and/or technology, as well as the corresponding documentation, irrespective of the medium through which said transfer is made), tasks and/or services (including all types of technical support) supplied by the Vendor to a third party in any part of the world, the Client must comply with all national and international standards and regulations with regard to export and re-export control. In any event, the Client must comply with the effective export and re-export control standards and regulations with regard to the export and re-export controls applicable to Spain, the European Union and the United States of America.

21.2. Should it be necessary for export control checks to be carried out, the Client shall, further to a request from the Vendor, provide all information without delay relating to the end client, specific destination and concrete use of the goods, tasks and services provided by the Vendor, as well as any export control restrictions which may exist.

21.3. The Client shall compensate and absolve the Vendor from all liability with regard to any claim, process, action, fine, loss, cost, or damage and harm arising from, or relating to, any failure to comply with the export control regulations and standards by the Client, and shall also compensate the Vendor for all losses and expenses arising as a result of the latter, except in cases where such non-compliance was not due to fault by the Client. This provision does not imply a reversal of the burden of proof.

22.1. The Vendor shall not be obligated to comply with this agreement, should said compliance be impeded by any obstacle arising from national or international foreign trade or customs restrictions, or from any embargoes or other sanctions.

23.1. This Contract has been drawn up in Spanish and has subsequently been translated into different languages. In the event of a discrepancy between the wording in Spanish and the wording in any other language, the wording in Spanish shall prevail.

23.2. The Parties shall use Spanish in all documents exchanged under this Contract. Likewise, all notifications and communications issued by the Parties under this Contract shall be issued in Spanish.

24.1. In the event that any of the provisions of this Contract are partially or fully revoked, or declared to be invalid or null and void, the validity or force of the other provisions shall not be affected as a result. The Parties shall make every reasonable effort to replace said invalid or null and void provision with another provision which is legal, valid, or applicable, and which has the same or similar effect.

24.2. Any amendments, modifications or additions to this Contract shall require written agreement from both Parties in order to be valid.