GENERAL TERMS AND CONDITIONS OF SALE AND WARRANTY
In force as from September 30, 2022
Sale of any Products or Services is expressly conditioned on Client’s assent to these General Terms and Conditions of Sale and Warranty ( the “Conditions”), which are incorporated in, and are a part of, any contract of sale or signed purchase order accepted by Client, BORRELL’s offer by means of the corresponding estimate or other commercial documents, release, requisition, work order, shipping instruction, specification, catalogue, brochure, leaflet or invoice, legal notice contained in BORRELL’s website (https://borrell-usa.com) and in any other document, whether expressed in written form, by electronic transmission or other tangible format, relating to the machines, replacement parts and/or services to be provided by BORRELL USA Corp, BORRELL WORKS S.L., their parent company, subsidiaries, and related companies (hereinafter “BORRELL”, “Distributor” or “Seller”).
Seller expressly objects to any additional or different terms proposed by Client. No Client form shall modify these Conditions, nor shall any course of performance, course of dealing, or usage of trade operate as a modification or waiver of these Conditions. Any order to purchase products or receive services shall constitute Client’s assent to these Conditions. Unless otherwise specified in the quotation, Seller’s quotation shall expire thirty (30) days from its date and may be modified or withdrawn by Seller before receipt of Client’s conforming acceptance.
- “Client” means the entity to which Seller is providing Products or Services under the Contract.
- “Contract” means either the contract agreement signed by both parties, or the purchase order signed by Client and accepted by Seller in writing, for the sale of Products or Services, together with these Terms and Conditions, Seller’s final quotation, the agreed scope(s) of work, and Seller’s order acknowledgment. In the event of any conflict, the Terms and Conditions shall take precedence over other documents included in the Contract.
- "Contract Price” means the agreed price stated in the Contract for the sale of Products and Services, including adjustments (if any) in accordance with the Contract.
- “Products” means the machinery, equipment, parts, accessories, materials, supplies, and other goods Seller has agreed to supply to Client under the Contract.
- “Seller” means the entity providing Products or performing Services under the Contract.
- “Services” means the services Seller has agreed to perform for Client under the Contract.
- “Conditions” means these “General Terms and Conditions for the Sale of Products or Services”, together with any modifications or additional provisions specifically stated in Seller’s final quotation or specifically agreed upon by Seller in writing.
Acceptance will occur when BORRELL expresses in writing its acceptance of Client’s order, by Client’s acceptance of the firm offer or confirmation of the order to BORRELL, even if such confirmation is not in writing, but is communicated by conclusive acts that demonstrate the concurrence of wills, such as the commencement of operations by BORRELL with the consent of the Client, Client’s payment of a deposit or the opening of a letter of credit, whichever occurs first.
3. PLANS, DESIGNS AND DESCRIPTIVE DOCUMENTS
3.1. All information, whether in images or words, relating to, and including but not limited to, weights, dimensions, specifications, volumes, prices, performance and other machinery data contained on the company website (borrell-usa.com), as well as in it catalogues, prospectuses, circulars, price lists and other advertising material, are illustrative in nature only and shall not be binding, unless the estimate, firm order or contract refers expressly to such information.
3.2. The information related to the machinery’s outputs and capacities shall always be considered an approximation or estimate and shall be deemed to have been met whenever the results achieved reach eighty percent (80%) of the expected targets according to the information provided by BORRELL.
3.3. The plans, designs, manuals, information or technical documents relating to the Products, the machinery, the software or any other element which is the subject matter of the contract, provided to the Client before or after the contract enters into effect, shall remain the exclusive property of BORRELL, for the exclusive use of the user and only for the purpose of fulfilling the contract. Consequently, they may not be used for extra-contractual purposes, nor copied, reproduced, transferred or communicated to third parties, by the Client without the prior written consent of BORRELL.
4. DELIVERY AND SHIPPING TERMS; RISK OF LOSS
4.1. Time for delivery periods shall begin to run from the date that is the latest among the following: (a) the date on which the contract is accepted; (b) the date on which BORRELL receives the initial deposit, except where particular conditions dispense with that initial payment.
4.2. Delivery dates are considered approximate and in favor of BORRELL, and in all cases, an additional reasonable period shall be granted for fulfillment. Client may terminate the contract only after ninety (90) days have elapsed from the expected date of delivery of the Products, and in all cases, not unless the Client has previously communicated to BORRELL its intention by means of a certified letter with acknowledgment of receipt and granting BORRELL an additional period of thirty (30) days from the date of receipt. Within this period of thirty (30) days, BORRELL may deliver the Products specified in the Client’s letter, without any obligation to compensate or indemnify Client.
4.3.The delivery date shall be automatically extended for a period equal to the Client’s delay in fulfilling the following obligations: (a) payment of the deposit or payment on account; (b) the opening by the Client of a letter of credit agreed in the contract; (c) delay in the communication by Client of implementation rules, technical data or other instructions necessary for the finishing, assembly or installation of the Products; (d) in the case of modifications to the Products, agreed between the parties after the date of execution of the contract, the delivery date shall be automatically extended for the period reasonably necessary to carry out said modifications.
4.4.In the event of Force Majeure or impediment of another nature outside of the will of the parties, that makes delivery temporarily impossible or excessively difficult, the delivery date shall be extended for a period equal to the duration of said cause. Once BORRELL becomes aware of the impediment, BORRELL shall give notice to the Client within a reasonable period of the existence of the impediment and its ends. These causes for delay will not entitle either party to damages or indemnity.
4.5. Unless otherwise stated in the accepted order by BORRELL, the transport of the Products will be at Client’s own risk and expense, under INCOTERM conditions: EX-WORKS (EX-FACTORY) at the BORRELL plant. Client assumes the possible losses during transport and will be responsible for all costs of freight and insurance of same.
4.6. Risk of loss shall pass to Client as established in the INCOTERM: EX-WORKS (EX-FACTORY) agreed. BORRELL will under no circumstances be liable for any loss or damages sustained by the Products once the risks have been transferred. Client shall under no circumstances be released from its obligation to pay the full contract price if the Products are lost or damaged after the risk of loss has been transferred.
4.7. BORRELL will notify Client the date and place of the delivery of the Products so that the Client can take charge of it. The communication shall be sent sufficiently in advance for Client to take the measures normally necessary in such cases. If delivery is delayed for reasons beyond BORRELL’s control or through no fault of BORRELL, the risk of loss shall pass to Client as of the delivery date communicated. If the Products are not removed from the delivery location within fifteen (15) days of said communication, warehousing expenses will be charged and the following will apply: (i) title and risk of loss immediately pass to Client, if they have not already passed, and delivery shall be deemed to have occurred; (ii) any amounts otherwise payable to Seller upon delivery or shipment shall be due; (iii) a fee of two percent (2%) of the value of the Products will be charged to Client; and (iv) when conditions permit and upon payment of all amounts due, Seller shall make Products available to Client for delivery.
4.8. Unless the Client, when placing its order, informs BORRELL of its particular standards and specifications with respect to assembly, installation and accident prevention, these will be carried out pursuant to BORRELL’s usual standards.
4.9. BORRELL will undertake the start-up of the system so that Client can verify that the delivered Products are in perfect working order. Within fifteen (15) days of the start-up of the system, if Client has not notified BORRELL of any incident, it will be understood that said start-up has been satisfactory and fully accepted by Client.
4.10. Any reference to INCOTERMS, whether express or related to matters regulated by those terms, will be understood according to the INCOTERMS of the International Chamber of Commerce (https://iccwbo.org) according to the text that is in effect at the time of acceptance of the contract, with the terms and limitations set forth in these Conditions, as well as those particular conditions that might be agreed to at any time by the parties in writing. Questions or interpretation shall be resolved by the application of the INCOTERM that presents the least amount of risks and costs to BORRELL.
4.11. Any liability of Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
5. CANCELLATION OF ORDER
In the event of termination of the contract or return of the Products for reasons not attributable to BORRELL, BORRELL will keep, as compensation, the initial payment made by Client of thirty percent (30%) of the total contract price and Client will be charged the additional costs of any modification of the order, once accepted. Client may return Products only at its sole cost and only with the prior written authorization of Seller, which Seller may withhold in its sole discretion. No returns of special, custom, or made-to-order Products will be permitted. No returns will be permitted more than sixty (60) days after delivery.
6. TITLE TO PRODUCTS
6.1. Title to the Products sold shall belong to BORRELL so long as the contract price has not been paid in full by Client. As collateral security for the full payment of the purchase price of the Products, Client hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Client in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under (i) if in the United States, the California Uniform Commercial Code. Seller shall have the right to file any and all documents and take any action it deems necessary to fully establish protection of its security interest in the Products; however, the failure of Seller to file any such document shall not in any way act as a waiver of Seller’s right to such security interest. Client shall therefore have no right to sell, assign, transfer, lease, encumber, pledge or remove the machinery from Client’s premises or warehouse, without first paying BORRELL in full, unless expressly consented to in writing by BORRELL.
6.2. Once all payments have been made for the total contract price, BORRELL shall provide to Client a receipt for payment in full in which BORRELL transfers to Client title and control of the Products.
6.3. Holding title to the Products until payment is made in full by Client shall not affect transfer of risk of loss set forth in Article 4.
7. ASSEMBLY/INSTALLATION WORK
In the event Client desires for Seller to perform any assembly/installation work, said work will be performed pursuant to a separate agreement to be entered into in writing by both Client and Seller detailing the terms of said work.
8. CONTRACT PRICE
8.1. The prices for the Products at the disposal of the Client at the BORRELL plant or in the place that BORRELL may designate (incoterm: “ex-works” –ex-factory) are understood to be net. Taxes, expenses, rights, and other applicable tariffs will be added to the price set forth in the order.
8.2. Client shall purchase the Products and, if applicable, shall pay for the services provided, from Seller at the Contract Price. Prices are subject to change without prior notice and Seller shall thereafter notify Client of any price increases. In the event of a price increase in raw materials during the process of building the machinery that is the subject matter of the offer, by reason of force majeure or any natural disaster that results in market fluctuation, BORRELL shall assume thirty percent (30%) of such increase. If the price increase exceeds thirty percent (30%), BORRELL has the right to modify the offer unilaterally to reflect those increases, having first informed the Client of such modification and with due justification. In this instance, Client shall have the right to cancel the contract by written notice to Seller, provided such notice is received by Seller not more than five (5) days after Client’s receipt of Seller’s notice of price increase, and Client shall have no right to seek damages from BORRELL resulting therefrom.
8.3. All Contract Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Client. Client shall be responsible for all such charges, costs and taxes; provided, that, Client shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
8.3. The Contract Price excludes shipping and handling charges, which are the obligation of Client and will be added to the invoice if prepaid by Seller.
9. PAYMENT TERMS
9.1. Except for other terms established in the contract or accepted order, and as a general rule, the form of payment will consist of payment on account, letter of credit, or an advance deposit by Client of thirty percent (30%) of the contract price at the time of acceptance and the balance of the total contract price to be paid before shipment of the machinery, all payable in the currency specified in the invoice. Replacement parts shall be paid for by advance deposit of the entire price prior to shipment.
9.2. Client shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court costs. In addition to all other remedies available under these Conditions or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products if Client fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.
9.3. Client shall not unilaterally withhold or reduce payment of any amounts due and payable under any circumstances not expressly provided for in the particular conditions of the order or by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise, or due to the lack of missing parts or for work carried out later in fulfillment of the warranty obligation.
9.4 If Client disputes any invoice or portion thereof, it shall notify Seller in writing within thirty (30) days of receipt of said invoice, detail the reason for the dispute, and pay all undisputed amounts. All charges not timely disputed in writing shall be deemed to be undisputed and shall be due and payable as set forth above.
9.5. Delay on the part of the Client in dispatching or receiving the Products, as the case may be, will not give Client the right to postpone the fulfillment of its payment obligations agreed to with BORRELL.
10.1. BORRELL has an obligation to deliver to Client, Products that conform to the contract, and shall address any lack of conformity that may exist at the time of delivery.
10.2. BORRELL has an obligation to correct any operating defects that result from a defect in design, materials or manufacture, subject to the limitations set forth below. This obligation refers solely to the warranty period, which shall be extended to a period of one (1) year from the date of start-up of the system. If during this period, any part breaks or deteriorates because of a material defect, it shall be replaced with another part of similar or better characteristics and functionality and BORRELL shall bear the costs of transport and assembly.
10.3. BORRELL is exempt from liability for defects arising from normal wear and tear, defects that are merely aesthetic or that do not affect the operation of the Products or that of their component parts, as well as those attributable to any of the following causes: (a) the use or operation of the Products without following the instructions and procedures for normal operation, or without following BORRELL’s instructions; (b) alterations, modifications, repairs and other work carried out on the Products by personnel that is not under the direction and control of BORRELL, without BORRELL’s express written consent; (c) Client’s failure to properly maintain the Products or operating system on which the software has been installed (including interruption or anomaly in the electrical system, flooding, using the Products outside, or fire); (d) any defect resulting from using the Products with other software or hardware that may be incompatible; (e) any other breach of the obligations assumed by the Client in this contract regarding the use and maintenance of the Products; (f) any damages caused by natural disasters, fortuitous events or Force Majeure.
10.4. In order to invoke the benefit warranty, it is necessary that: (a) the Client communicate the defect or malfunction in writing within 48 hours following its discovery, providing as specific information as possible on the anomaly and its causes, if known, and affording BORRELL the opportunity for examination and correction; (b) any responsibility on the part of BORRELL shall be subject to fulfilment by the Client of the payment conditions and other obligations pursuant to the contract.
10.5. Client acknowledges that the obligations and responsibilities of BORRELL are fully and exclusively defined in these Conditions and in any specific conditions agreed upon, which will supersede these Conditions.
10.6. BORRELL shall not guarantee or be liable for any alterations or adaptations carried out on the Products at the time of assembly on account of local conditions or to fulfill the Client’s wishes which were not provided for initially in the order, even if carried out by BORRELL personnel or subcontracted by BORRELL, except where such liability has been accepted in advance and in writing.
10.7. BORRELL warrants that all the documentation provided with the acquired Products contain the information and materials reasonably necessary to assist the Client in their use and maintenance.
10.8. Carrying out warranty repairs shall not give rise to an extension of the maximum warranty period, except with respect to refurbished or replacement parts, which will remain under warranty under the same terms and conditions as provided in section 10.2.
11. DISCLAIMER OF WARRANTY
11.1. Seller warrants that all products delivered by Seller to Client shall, at the time of sale, comply with applicable Seller specifications. All products not manufactured by Seller are sold only with the warranties provided by the manufacturer of products, if any. SELLER MAKES NO OTHER WARRANTY WITH RESPECT TO THE PRODUCTS, AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Seller personnel are not authorized to alter this disclaimer of warranty. BORRELL shall provide solely the services that it would have otherwise provided.
11.2. All Products are sold for commercial use only, for the purpose of integrating them into a production process for transformation, marketing or provision of services to third parties, and are not intended for use by consumers. Accordingly, Seller disclaims all warranties to consumers, as defined by the Magnuson-Moss Act. If, for any reason, the Client can be considered a consumer or user, according to the definition regulated in said legislation, they must notify BORRELL in advance, who may freely withdraw from the sale without the Client being entitled to damages or indemnity of any kind. Any inspection services provided by Seller at Client’s request shall be provided as a customer service only and shall not be deemed to act as a warranty or approval of Client’s installation, use, or maintenance of the Products, nor shall Seller be liable for failure to detect improper use, installation or maintenance of the Products by Client.
12. LIMITATION OF LIABILITY
12.1. IN NO EVENT SHALL SELLER BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12.2 IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER OR, AS TO SERVICES, FOR THE AMOUNTS PAID TO SELLER FOR SERVICES PERFORMED HEREUNDER.
12.3. This limitation of liability is a material basis for the parties’ bargain and reflects the bargained-for allocation of risks between Seller and Client, without which Seller would not have agreed to provide the Products or services at the price charged.
12.4. The warranty shall not apply to requests for repairs, as well as requests for modifications that may be carried out by BORRELL on used products or on another manufacturer’s products.
12.5. Client understands and acknowledges being informed that the Products and installations of BORRELL are not designed for outdoor use, to operate outdoors or under inclement conditions, except when expressed otherwise. Use of the Products out of doors or under roofing or poor protection against rain and inclement weather, without the prior and express written approval of BORRELL, will empower BORRELL to refuse to carry out or stop the installation and will also void the warranty.
12.6. Client further understands and acknowledges that there may be occasions when BORRELL may recommend the installation of a fire suppression system in Client’s facilities or building(s) and that the installation of a fire suppression system shall be at Client’s cost and expense. Furthermore, even if a fire suppression system is not mandated by law or the county where the Products shall be located approves the permits for the installation of BORRELL’s Products without requiring Client to install a fire suppression system, if a fire results and Client has chosen not to install a fire suppression system contrary to BORRELL’s recommendation, BORRELL shall bear no liability for any damages resulting from any such fire.
13.1. Subject to Article 12 hereof, each of Client and Seller (as an “Indemnifying Party”) shall indemnify the other party (as an “Indemnified Party”) from and against claims brought by a third party, on account of personal injury or damage to the third party’s tangible property, to the extent caused by the negligence of the Indemnifying Party in connection with this Contract. In the event the injury or damage is caused by joint or concurrent negligence of Client and Seller, the loss or expense shall be borne by each party in proportion to its degree of negligence. For purposes of Seller’s indemnity obligation, no part of the Products is considered third party property.
13.2. Activities on Client’s Premises. Seller will defend, hold harmless and indemnify Client from and against any liability, claims, demands, damages, costs or expenses (including, without limitation, reasonable attorney and other professional fees and disbursements) arising from or in connection with the performance of any service or work by Seller or its employees, agents, representatives and subcontractors ("Personnel") on Client’s or Client’s customer’s premises or the use of the property of Client, except to the extent such liability arises out of the negligence or willful misconduct of Client or Client’s Personnel. Seller will assure that all Personnel who are performing Services on behalf of Seller are competent to perform the Services. Seller will require all Personnel who are performing any work on Client's premises to comply with all of Client's regulations and policies.
13.3. Product Liability. Seller will defend, hold harmless, and indemnify Client from and against any liability and expenses (including, without limitation, attorney and other professional fees and disbursements) arising from or in connection with any third party claims or demands to recover for personal injury or death, property damage or economic loss caused by any of the goods or services supplied by Seller (regardless of whether such claim or demand arises under tort, negligence, contract, warranty, strict liability or any other legal theories), except to the extent such injury, damage or loss results from Client’s specifications as to design or materials, or from alteration or modification of the goods, or improper repair, maintenance or installation by any party other than Seller.
13.4. Indemnification Procedure. The Party seeking indemnification (“Indemnified Party”) with regard to any Claim must: (i) notify the party being indemnified (“Indemnifying Party”) promptly in writing within a reasonable time from receipt of notice of a Claim; provided, however, that failure to give notice within a reasonable time shall not relieve Indemnifying Party of its obligations hereunder except if, and to the extent, it was materially prejudiced by such failure; and, the management of both parties shall meet to discuss how to handle the matter. The Indemnifying Party shall assume the defense of such Claim with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall reasonably cooperate with the Indemnifying Party, at its own expense, in the defense, settlement or other resolution of the Claim. The Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall not settle a Claim against the Indemnified Party for other than money damages (for which Indemnified Party is indemnified hereunder) without the Indemnified Party’s prior written consent.
14. CLIENT’S OBLIGATIONS
14.1.The cost of assembly and installation of the Products, as well as its start-up, shall be borne by the Client, so long as no other agreement is set forth in the order accepted by BORRELL. Furthermore, any risk arising from or relating to the assembly will be borne by the Client, who should be properly insured against such risks.
14.2. Client must hire the necessary employees to carry out the installation, such as an assistant for each BORRELL assembler, as well as any other workers required according to the nature of installation. It is the obligation of the Client that its employees be duly trained and instructed for the tasks they are charged with, and to comply with employment legislation, occupational risk prevention and any other regulatory legislation applicable to the type of installation being carried out. The costs of hiring personnel will be borne by the Client, unless otherwise provided in the contract.
14.3. Client must provide to all workers that participate in carrying out the installation, including BORRELL workers or those subcontracted by BORRELL, all necessary equipment to perform the installation, including but not limited to toilets, changing rooms and other any other health and safety workplace requirements.
14.4. Unless expressly stated otherwise, Client must provide BORRELL with the means necessary to complete the assembly. For example, depending on the requirements of each installation, such means include, but are not limited to: electric supply; compressed air and hot water service with the specifications required for the installation; a hand pallet truck for use during the whole assembly period; and machinery and tools for unloading the machinery from the truck and placing it in its final site, namely, (a) a forklift when the machine weighs less than 3000 kg or (b) a crane in the following instances, at the discretion of BORRELL: when the machine weighs more than 3000 kg., has a volume that makes handling with a forklift dangerous, has a flat lower part which prevents the use of a forklift or when the machine should be placed on a platform.
14.5. For BORRELL to assemble and provide other services, the Client’s buildings must be free from risks and certified for occupancy. Otherwise, BORRELL may refuse to carry out the installation and shall be exempt from legal liability and from the warranty obligation of clause 10.
14.6. In accordance with the previous paragraph, the buildings, warehouse, or other structures where BORRELL’s Products are to be housed, must meet the conditions that BORRELL has indicated in advance. Client must, at its own expense and risk, manage and obtain the necessary permits, licenses and authorizations for any modifications that may be needed to adapt the premises to the conditions specified by BORRELL, and must allow BORRELL to enter and inspect in order to verify that the conditions meet BORRELL’s standards. In the event the conditions indicated by BORRELL are not satisfied by the Client, BORRELL will, at BORRELL’s discretion, be either exempt from any liability whatsoever or disobliged from carrying out the installation until the conditions are fulfilled.
14.7. In the event Client wishes to apply for a grant or for public funding to defray the cost of purchasing BORRELL’s Products and related services, Client should inform BORRELL in advance, of the conditions required for receiving such aid. In addition, Client shall provide BORRELL a copy of the notice, the application submitted and the procedural documents that may ensure until the awarding or denial of the grant or public funding. BORRELL may decline or suspend the order if, from the documentation provided, it concludes that it cannot legally comply with the conditions of the award, without giving right to any right of indemnity for the Client.
14.8. If Client applies for a grant or public funding as set forth in 14.7 above, Client acknowledges having been informed that BORRELL may unilaterally modify the serial or identification numbers of its Products for logistical or other reasons. Moreover, BORRELL is continually innovating and improving its Products, equipment and installation procedures, and therefore, reserves its right to unilaterally change, without prior notice, the Products initially costed and described in the grant or public fund’s justification memo, for other machinery of a higher quality and performance. It shall be the Client’s responsibility to inform the Awarding Body of such circumstances.
15. ADEQUATE ASSURANCE
Seller reserves the right by written notice to cancel any order or require full or partial payment or adequate assurance of performance from Client without liability to Seller in the event of: (i) Client’s insolvency, (ii) Client’s filing of a voluntary petition in bankruptcy, (iii) the appointment of a receiver or trustee for Client or (iv) the execution by Client of an assignment for the benefit of creditors. Seller reserves its right to suspend its performance until payment or adequate assurance of performance is received and also reserves its right to cancel Client’s credit at any time for any reason.
16. SOFTWARE LICENSE
16.1. BORRELL grants to the Client a personal license for software, which is non-transferable and non-exclusive, for use with the machinery, to make the operation of the machinery possible, in accordance with its specifications.
16.2. The use of the software under the license is restricted to the location where the machinery is installed and to the operating conditions of the programs that are specified in the documentation provided with the software.
16.3. BORRELL is the owner of the intellectual property and other rights to the software, and as such, Seller only licenses to Client the right to use the software with its subscription, upon Seller’s receipt of payment in full. In addition, BORRELL reserves all rights that have not been expressly assigned by these Conditions, including but not limited to, the rights of reproduction, public communication, transformation and distribution. Client shall have no right to assign or sub-license in any way the software belonging to BORRELL.
16.4. BORRELL shall inform Client of any update or new versions that involve and improvement of the licensed software so that the Client may update it.
16.5. Client, within five days following the installation of the programs, shall express in writing to BORRELL, Client’s acceptance of the software’s Technical Specifications. If this period has lapsed without the Client having declared its agreement, the programs will be deemed to have been accepted.
16.6. Client has a duty not to disclose the source code of the software or to design, directly or indirectly, by means of third parties, derivative works based on the software, nor any programming operation or reverse engineering from which may result derivative works, adaptations, alterations, modifications, translations, de-compilations or decoding of the software or any of its properties, except with prior written authorization of BORRELL. This duty shall not apply in relation to software published under the GPL (General Public License) or any other open-code license.
16.7. BORRELL will not bear liability for any damage or loss to any of the Client’s IT support or computer media resulting from the use of the software.
16.8. BORRELL guarantees to Client that the software is in good working order provided that the Client uses it in accordance with its technical specifications and the instructions provided by BORRELL. Said warranty will in no case cover damages or problems caused to the software by negligent use of same or use contrary to said specifications and instructions, nor damage or problems arising from events outside of the reasonable control of BORRELL. In addition, BORRELL will not assume responsibility for repairing problems or damage in altered versions of the software or versions that have not been authorized by BORRELL.
16.9. This warranty has a term of one (1) year commencing from the start-up of the system. Any supplement, update or replacement of the software carried out by BORRELL during the warranty period will be covered for the remainder of said warranty period, or if the warranty period has run out, for an additional period of thirty (30) days, whichever period is longer.
16.10. BORRELL agrees to provide technical advice over the telephone, and if applicable, assistance at the Client’s facilities in anything related to the operation and functioning of the licensed software during the warranty period.
16.11. The license granted to the Client shall expire when, due to an overhaul, update or replacement of the software, a new license is granted to the Client. The license shall also expire due to non-compliance by the Client with the duties assumed in these Conditions. In the event of breach of Client’s obligations, BORRELL reserves its right to suspend the use of the license.
17. CONFIDENTIALITY AND PROTECTION OF PERSONAL DATA
17.1 Each Party acknowledges that it may, in the course of performing its responsibilities under this Agreement, have access to or acquire Confidential Information from the other Party or its affiliated companies or their clients or from third Parties to whom the other Party owes a duty of confidentiality. "Confidential Information" means all nonpublic information of a confidential nature, in any form, provided or made available by one Party (“Disclosing Party”) to the other Party (the “Receiving Party”), that is marked as “Confidential” or that any reasonable business person standing in the position of the Receiving Party knows or should know to be confidential given the nature of the information. The Receiving Party agrees to hold the Confidential Information in strict confidence and not to disclose such information to third parties or to use such information for any purposes whatsoever other than as reasonably required for performance under this Agreement or to exercise its rights under this Agreement, and the Disclosing Party shall require each of its employees, agents and subcontractors who may, intentionally or unintentionally, have or acquire access to the Confidential Information of their obligations to keep such information confidential and in case of agents and subcontractors to require them to enter into written agreements containing obligations which shall be no less restrictive than the terms hereof. The Receiving Party agrees it shall take all necessary steps to ensure that the Confidential Information is securely maintained, and upon the expiration, termination or any earlier time requested by Disclosing Party, it shall return any Confidential Information to the Disclosing Party, or destroy at the Disclosing Party’s option (and upon request certify to such destruction). All Deliverables, information from BORRELL pertaining to its Products and its services, software and any materials, information and data provided by BORRELL to Client, its Personnel and/or subcontractors and/or agents shall be deemed Confidential Information belonging to BORRELL.
17.2. In the event that the Receiving Party is required by law to disclose all or any part of the Confidential Information under an order or inquiry issued by a court of competent jurisdiction or by a judicial or administrative agency or legislative body, the Receiving Party may do so without being deemed in breach of this Agreement, but shall immediately notify the Disclosing Party of the existence, terms and circumstances surrounding such request and if disclosure of the Confidential Information is required or deemed advisable, exercise its best efforts to obtain from such court, agency or body an order, stipulation or other reliable assurance acceptable to the Disclosing Party that confidential treatment will be accorded to such portion of the Confidential Information to be disclosed and it shall disclose only that Confidential Information specifically required.
17.3. Notwithstanding the foregoing provisions of this Article 17, no obligations of confidentiality shall exist in respect of information which (i) is at the date of this Agreement in, or at any time thereafter comes into, the public domain other than through a breach of this Agreement by the Receiving Party; (ii) can be shown by the Receiving Party to have been known to the Receiving Party prior to it being disclosed by the Disclosing Party; (iii) subsequently comes into the possession of either Party from a third party which had a lawful right to disclose such information without restriction; (iv) which is independently developed by the Receiving Party, as established by documentary evidence, without the use of any of Disclosing Party’s Confidential Information; (v) is disclosed pursuant to legal or regulatory requirements; (vi) the Receiving Party has written authority from the Disclosing Party to disclose.
17.4. Public Disclosure and Use of Marks. Neither Party shall make any public disclosure relating to a sales contract or the subject matter of a sales contract without the prior written agreement of the other Party. Neither Party may make any use of the other Party’s name, logo, trademarks or any other identifying information (“Marks”) for any purpose except as necessary to perform the Services, including but not limited to advertising, without the prior written approval of the other Party for any purpose whatsoever. A Party’s permission to use its Marks may be withdrawn at any time at its sole discretion upon written notice, which notice shall include a reasonable time for removal of such Marks. A termination of this Agreement will constitute a withdrawal of permission of the use of any Marks, unless the Parties otherwise mutually agree in writing. In connection with usage of the Marks, each Party shall conform to the standards set by the Party owning the Marks.
17.5.Protection of Personal Data. Neither party shall transfer or otherwise allow the use of Personal Data of the other party unless expressly instructed or authorized by the other party. Both parties shall comply with applicable laws and best practices relating to data privacy and data security.
18. INTELLECTUAL PROPERTY RIGHTS
18.1. BORRELL owns valuable know-how relating to the manufacture of Products for the agri-food industry and complete processing lines for nuts and dried fruits and protects the results of its RDI through patents and trade secrets it holds throughout the world.
18.2. By purchasing Products that are the subject matter of this contract, Client acknowledges BORRELL’S intellectual property right over them, and undertakes to respect and safeguard it with all the measures at its disposal, applying the greatest diligence possible. In addition, Client shall inform BORRELL of any improper use by third parties of BORRELL’s patents, trade secrets, trademarks, brands and other intellectual property rights, that Client has notice of.
18.3. Client shall inform BORRELL in writing of any modification or improvement it has made to the Products and BORRELL shall have the right to inspect the Products and determine if the modification or improvement is acceptable. If, and only if, BORRELL approves of the modification or improvement made to the Products and said approval is acknowledged in writing by BORRELL, the intellectual property rights related to such modifications or improvements shall belong to BORRELL, who may offer a fair compensation to Client based on the value of such modifications. Modifications made without Borrell approval or consent will relieve Borrell of liability so long as Borrell does not approve of the modification.
18.4. BORRELL agrees to provide Client with all the information, documentation, technical knowledge and know-how necessary for the startup of the Products, as well as training the Client’s employees in its use.
18.5. Under no circumstances shall a contract for the sale of Products be interpreted as a license to manufacture or market the Products, component parts or installation procedures belonging to BORRELL, nor to the information and technical knowledge, or know-how needed for the start-up and effective performance of the Products.
19. COMPLIANCE WITH LAWS
19.1. Seller shall take reasonable steps to ensure the Products are in conformity with applicable laws and regulations; however, Client acknowledges that Products may be used in various jurisdictions for various applications subject to disparate regulations and therefore that Seller cannot warrant compliance with all applicable laws and regulations. Seller disclaims any representation or warranty that the Products conform to federal, state or local laws, regulations, ordinances, codes or standards, except as expressly set forth by Seller in writing. Client shall comply with all applicable laws, regulations and ordinances. Seller may terminate this Contract if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.
19.2. The products, items, technology or software covered by a quotation/order may be subject to various laws including U.S. and foreign export controls. Seller is committed to complying with all relevant export laws. If these items are of United States origin and are being exported from the United States, the following statement applies, “These commodities, technology or software were exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited.” Client is responsible for applying for export licenses, if required, based on end user or country of ultimate destination. Seller’s obligations are conditioned upon Client’s compliance with all U.S. and other applicable trade control laws and regulations. Client shall not trans-ship, re-export, divert or direct Products other than in and to the ultimate country of destination declared by Client and specified as the country of ultimate destination on Seller’s invoice. Client agrees to indemnify and hold Seller harmless from any and all costs, liabilities, penalties, sanctions and fines related to non-compliance with applicable export laws and regulations.
19.3. Client represents and warrants that it is not subject to any trade sanctions imposed by the U.S., EU and/or UN and that it is in compliance and shall comply with all applicable laws and regulations relating to trade restrictions and/or export controls (including trade sanctions imposed by the US, EU and/or UN) with respect to Products sold hereunder, and shall provide evidence of compliance with the foregoing as Seller may reasonably request from time to time.
19.4. Client represents and warrants that it is in compliance and shall comply with all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, and has not, directly or indirectly, offered, paid, promised, or authorized the giving of money or anything of value to any government official for the purpose of influencing any act or decision of such government official. Client is not on, nor is Client associated with any organization that is on, any list of entities maintained by the United States government that identifies parties to which the sale of goods or services is restricted or prohibited.
In addition to any remedies that may be provided under these Conditions, Seller may terminate this Contract with immediate effect upon written notice to Client, if Client: (i) fails to pay any amount when due under this Contract and such failure continues for thirty (30) days after Client’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Conditions, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
21. AMENDMENT AND MODIFICATION
These Conditions may only be amended or modified in a writing which specifically states that it amends these Conditions and is signed by an authorized representative of each party.
No waiver by Seller of any of the provisions of this Contract is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Contract operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
23. FORCE MAJEURE
Seller shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Client shall not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Contract.
25. RELATIONSHIP OF PARTIES
The relationship between the parties is that of independent contractors. Nothing contained in this Contract shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
26. GOVERNING LAW
All matters arising out of or relating to this Contract are governed by and construed in accordance with the internal laws of (i) the State of California if Client’s place of business is in the U.S., without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction.
27. SUBMISSION TO JURISDICTION
Any legal suit, action or proceeding arising out of or relating to this Contract shall be instituted, depending upon the location of Client, in accordance with the following: (i) if Client’s pertinent place of business is in the U.S., legal action shall be commenced in the federal courts of the United States of America or the courts of the State of California in each case located in the City of Merced and Merced County, or (ii) if Client’s pertinent place of business is in countries other than US legal action shall be commenced in the courts located in Madrid (Spain). Seller and Client agree to consider arbitration as a means of resolving any disputes hereunder which cannot be otherwise resolved.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Contract or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Contract, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Contract is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Contract or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms and Conditions which by their nature should apply beyond their terms, will remain in force after any termination or expiration of these Terms and Conditions including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Indemnification, Submission to Jurisdiction/Arbitration and Survival.
31. COMPLETE AGREEMENT
These Conditions constitute the entire agreement between Client and Seller relating to the subject matter hereof, and supersede all prior and contemporaneous discussions, understandings, and agreements related to the subject matter hereof.
32. LEGAL EXPENSES
The prevailing party in any legal action or arbitration brought by one party against the other arising out of the accepted order or contract shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorney’s fees.