These Terms and Conditions of Sale shall exclusively govern the sale and purchase of all products manufactured and/or sold by INGENIA-CAT, S.L. The issuance of orders by Buyer implies full acceptance of these Terms and Conditions of Sale which shall prevail over Buyer’s terms and conditions or any others terms and conditions in the event they contradict or deviate from these Terms and Conditions of Sale. INGENIA-CAT, S.L. is a company duly incorporated under the laws of Spain, recorded under the Commercial Register of Barcelona under volume 37636, folder 42, sheet B-306729, CIF number B-63831580, and domiciled at C/ Marie Curie 8-14, 08042 Barcelona – Spain.
Sale and License
Controlling Terms and Conditions. All purchases and sales of products, including all parts, spare parts and components thereof (the "Products") or services (the "Services") between Buyer and Ingenia, and/or its direct and indirect subsidiaries (collectively,"Ingenia"), shall be made pursuant to Ingenia's quote and/or order acknowledgment and shall be governed by these Terms and Conditions. These Terms and Conditions and Ingenia's quote and/or order acknowledgement shall constitute the entire agreement between the parties pertaining to the subject matter hereof, and shall supersede all prior or contemporaneous oral or written negotiations, agreements, understanding or representations with respect thereto. These Terms and Conditions shall supersede any conflicting provision contained in any purchase order of Buyer. Unless otherwise agreed in writing, nothing contained in any purchase order of Buyer shall in any way modify or add any provision to these Terms and Conditions. These Terms and Conditions may not be amended or any provision hereof waived in any way except by an instrument in writing signed by both parties. IN THE EVENT THAT INGENIA'S QUOTE IS DEEMED AN OFFER, ACCEPTANCE BY BUYER OF SUCH OFFER IS EXPRESSLY LIMITED TO THE TERMS CONTAINED HEREIN. ISSUANCE BY BUYER'S OF A PURCHASE ORDER SHALL BE DEEMED AN ACCEPTANCE OF THESE TERMS AND CONDITIONS. IN THE EVENT THAT INGENIA'S ORDER ACKNOWLEDGMENT IS DEEMED AN ACCEPTANCE OF BUYER'S PURCHASE ORDER, SUCH ACCEPTANCE BY INGENIA OF BUYER'S PURCHASE ORDER IS EXPRESSLY MADE CONDITIONAL ON ASSENT TO ANY ADDITIONAL AND DIFFERENT TERMS CONTAINED HEREIN. FAILURE BY BUYER TO SPECIFICALLY OBJECT TO THESE TERMS AND CONDITIONS IN WRITING WITHIN TWENTY (20) DAYS OF RECEIPT SHALL CONSTITUTE AN ACCEPTANCE HEREOF. These Terms and Conditions are only applicable for professional and commercial Buyers whether for domestic or international transactions.
License to Use Software. Buyer acknowledges that the software or firmware components and applications, if any, accompanying the Products sold hereunder (the "Software") are licensed and not sold to Buyer. Upon receipt of full payment therefor, Ingenia grants to Buyer a nonexclusive, personal, nontransferable, limited and royalty-free license to use and execute such Software in object code form only and only in conjunction with the operation of the associated Product. Buyer shall receive no rights to the Software except as expressly provided herein. No license to use the source code of the Software is provided hereunder. Buyer agrees that it shall not use, distribute, license, sublicense, resell or otherwise transfer all or any part of the Software or supporting documentation other than as expressly permitted hereunder without the prior written consent of Ingenia. Buyer agrees that it shall not, nor shall it permit any employee or agent of Buyer to, adapt, modify, copy, reproduce, reverse engineer, decompile, or disassemble the Software in any way without the prior written consent of Ingenia. Except as expressly set forth herein, Ingenia shall have no obligations to Buyer whatsoever with regard to the Software. Without limiting the generality of foregoing, Ingenia has no obligation to develop updates or modifications to the Software or develop or provide Software development tools to Buyer.
Price; Payment Terms
Payment. The prices for all Products and Services shall be as set forth in Ingenia's quote and/or order acknowledgment and such prices shall be exclusive of all taxes and other charges referenced in Section 3.2 below, all of which shall be paid by Buyer. Once the Buyer has accepted the conditions and price of the Product, Ingenia shall submit an invoice to Buyer with each shipment of Products. Each invoice shall be due and payable in Euros net thirty (30) days from the invoice date. Ingenia reserves the right to require alternative payment terms, including but not limited to sight draft, letter of credit or payment in advance. Payment will be made on the agreed terms, by bank transfer or by PayPal system. Bank transfer will be made by Buyer in the Ingenia's bank account number designated in the invoice or written confirmation of the Product order sent to Buyer. To make a PayPal payment, Buyer does not need to have an account, and Buyer does not need to register as a new user with the service. PayPal accepts most well-known debit and credit cards. If Buyer has a registered PayPal account may choose this for the purchase method without typing Buyer’s credit card information PayPal is a quick, certified payment method and does not share user details with third parties. When Buyer makes a PayPal payment Ingenia only receives Buyer’s contact details and an address. Additional information about the PayPal payment system may be found on the PayPal website (www.paypal.com). Payment shall be made without any deduction of costs or bank fees; these must be borne by the Buyer.
Taxes and Charges. Buyer shall pay all transportation, handling, insurance, taxes (except for taxes based on Ingenia's income), import, export and customs fees and duties, tariffs and other charges related to the Products or Services purchased hereunder. If claiming tax exemption, Buyer must provide Ingenia with valid tax exemption certificates.
Interest Charges. Any late payment by the Buyer will bear default interest of late payment, calculated as provided in the Article 7 of Law 3/2004 of December 29th, for national Buyers and according to the applicable law for foreign Buyers. The payment of these interests shall not relieve the Buyer from the obligation to make the remaining payments in the agreed terms.
If the Buyer incurs delays in the agreed payments, the Seller may suspend temporarily or permanently, at its option, shipment of Products or performance of services associated with it, subject to the requirement that the Purchaser realization of arrears and reclaim, if any, additional compensation for the suspension supply or execution of the agreed services. If Ingenia employs any legal process to recover any amount due and payable from Buyer hereunder, Buyer shall pay all costs of collection and reasonable attorney's fees.
Delivery; Title and Risk of Loss. All Products will be delivered CPT (Incoterms 2010) for both, domestic and international shipments and deliveries, to Buyer’s designated address. The obligation to deliver is completed when Ingenia delivers the Product to the first carrier. Therefore, delivery shall occur and title to the Products shall pass from Ingenia to Buyer, (except for title to any Software which shall at all times remain with Ingenia or with the manufacturer, in case of distributed Products) and Buyer shall assume all risk of loss or damage, upon delivery of the Products to the first carrier, unless otherwise agreed by both parties in writing. All costs and expenses associated to delivery of Products will be invoiced by Ingenia to Buyer. Products will be delivered DAP (Incoterms 2010) if agreed by both parties in writing, and Ingenia will contract an insurance for the delivery. All costs and expenses associated to the delivery, including insurance will be invoiced by Ingenia to Buyer. In no event shall Ingenia be liable for any delay in delivery, or assume any liability in connection with shipment, nor shall the carrier be deemed an agent of Ingenia. The minimum order accepted is one unit of any Product.
Products. Ingenia will make reasonable efforts to ensure that the information about Products is accurate and up-to-date. However Ingenia do not warrant or guarantee that there will be no errors in the description and/or pricing of the Products, or that Products will always be available if Buyer wishes to place an Order to buy them. None of the material contained in Ingenia Website is to be relied upon as a statement or representation in relation to Products. All images, illustrations and descriptions of Products are for information only and Buyer is invited to contact Ingenia using the contact information in the Contact section if Buyer needs any further information about Products. Ingenia reserves the right, at any time and without notice, to modify the information about Products displayed on Ingenia’s Website, including without limitation information on prices, description and availability of Products. However, changes to price, availability or description of any Products will not affect Orders submitted by Buyer which have already been accepted by Ingenia.
Acceptance of Products. Buyer shall inspect all Products promptly upon receipt. The furnishing by Ingenia of a Product to Buyer shall constitute acceptance of that Product unless Ingenia receives a written notice of defect or nonconformity within five (5) business days after receipt by Buyer, provided, that such acceptance shall not relieve Ingenia of its warranty obligations hereunder.
Changes; Cancellations; Returns
Ingenia Product Changes and Substitutions. Ingenia reserves the right to (a) make changes in Products without notice, and without any obligation to incorporate those changes in any Products previously delivered to Buyer and (b) ship to Buyer the most current Product regardless of catalog description, if applicable.
Ingenia Changes to Orders or Specifications If Ingenia cannot accept Buyer’s Order Ingenia will contact Buyer by email or telephone as soon as possible but in any case no later than 3 (three) days from the date of Buyer’s Order. If Ingenia cannot accept or perform Buyer’s Order because the Products are no longer available, or because of an error in the prices and/or other information about the Products for which Buyer have placed an Order, Ingenia will contact Buyer and suggest alternative products that Buyer might wish to purchase. If Buyer does not accept Ingenia’s suggestions then Ingenia will cancel Buyer’s Order in relation to those Products Ingenia cannot supply and refund to Buyer any money that Buyer has paid to Ingenia in respect of those Products.
Buyer Changes to Orders or Specifications. Buyer may make changes to any order for standard Products which does not exceed 3.500,00 € (three thousand and five hundred EUROS) (it being agreed that any series of similar orders for standard Products shall be aggregated and deemed one order for the purpose of determining such amount) by providing written notice to Ingenia at least thirty (30) days prior to the scheduled delivery date. Any changes to any order for custom or option configured Products, or any order or series of similar orders for standard Products which exceeds 3.500,00 € (three thousand and five hundred EUROS) including but not limited to any changes to the specifications for the Products, must be approved in advance in writing by Ingenia. Ingenia must receive Buyer's change request at least thirty (30) days prior to the scheduled delivery date. In the event of changes to any order or the specifications for the Products, Ingenia reserves the right to adjust the prices and delivery dates for the Products, and to invoice Buyer for any unearned discounts based upon the actual quantities of Products delivered. In addition, Buyer shall be responsible for all costs associated with such change including, but not limited to, the burdened costs of all raw materials, work in progress and finished goods inventory on-hand or ordered which are impacted by such change.
Cancellation. Any order for standard Products which does not exceed 3.500,00 € (three thousand and five hundred EUROS) (it being agreed that any series of similar orders for standard Products shall be aggregated and deemed one order for the purpose of determining such amount) may be cancelled by Buyer by providing written notice to Ingenia at least thirty (30) days prior to the scheduled delivery date. Any order for custom or option configured Products, or any order or series of similar orders for standard Products which exceeds 3.500,00 € (three thousand and five hundred EUROS), may be cancelled only upon Ingenia's prior written approval, which approval may be granted or withheld in Ingenia's sole discretion. Cancellation orders will be not penalized. Nonetheless, cancellation will be subject to the following cancellation charges with respect to all cancelled units of Products: (a) the contract price of all Products completed prior to such cancellation; (b) the burdened cost of all raw materials (including long lead time items) in Ingenia's possession or on order, (c) the burdened cost of all raw materials incorporated into and all labor applied to work in progress, plus profit thereon in accordance with Ingenia's published margins; and (d) other reasonable cancellation charges including, but not limited to, non-recurring engineering expenses, cancellation costs payable by Ingenia to its suppliers, and any other costs incurred by Ingenia relating to such cancellation. Ingenia will use commercially reasonable efforts to reduce such cancellation costs by reallocating materials to other projects and/or returning surplus material to, or canceling orders with, its suppliers. In no event shall the Buyer be liable for more than the contract price of the cancelled Products.
Returns. Custom or option configured Products, or any order or series of similar orders for standard Products which exceeds 3.500,00 € (three thousand and five hundred EUROS) in the aggregate, are non-returnable. Any order for standard Products which does not exceed 3.500,00 € (three thousand and five hundred EUROS) (it being agreed that any series of similar orders for standard Products shall be aggregated and deemed one order for the purpose of determining such amount) may be returned to Ingenia for credit within thirty (30) days of the initial invoice date (60 days outside Spain) and are subject to a 25% restocking charge. Prior to returning a Product, Buyer must contact Ingenia's Return Department for shipping instructions and to obtain, where appropriate, a return material authorization number ("RMA number"). Buyer must ship the Product back in its original condition and in the original or equivalent packaging, with the RMA number clearly marked on the outside of the box, freight prepaid and DDP (Delivery Duty Paid) as shipment Incoterm (all taxes and custom fees borne of the Buyer). Ingenia shall not be responsible for any damage occurring in transit or obligated to accept Products returned without a RMA number Buyer bears all risk of loss or damage to the returned Products until delivery at Ingenia's designated facility. Any return shipment received by Ingenia without an RMA number and/or whose contents are not received in their original condition, may be reshipped by Ingenia freight collect to Buyer.
Confidential information and Intellectual or Industrial property
Ingenia Rights. Unless otherwise specifically agreed in writing by Buyer and Ingenia, as between Buyer and Ingenia, Ingenia retains all right, title and interest in and to the Software, all inventions, ideas, processes, methods, know-how, skills and techniques developed, discovered or conceived by Ingenia or its employees, including without limitation those developed and/or used in connection with the manufacture of the Products or performing Services hereunder (collectively, the "Ingenia Rights"). Such rights include, but are not limited to, patent rights, copyrights, trade secret rights, trademark rights, mask work rights and other proprietary rights throughout the world. Ingenia hereby grants to Buyer a nonexclusive, nontransferable, worldwide, limited license to use the Ingenia Rights solely to the extent required for Buyer to use the Products or Software sold or licensed hereunder. Ingenia shall retain all right, title and interest in and to all materials, fixtures or tools designed, developed or manufactured by Ingenia in connection with the manufacture of the Products.
Buyer Rights. Unless otherwise specifically agreed in writing by Buyer and Ingenia, as between Buyer and Ingenia, Buyer retains all right, title and interest in and to all specifications and materials provided by Buyer to Ingenia, and all inventions, ideas, processes, methods, know-how, skills and techniques developed, discovered or conceived by Buyer or its employees (the "Buyer Rights"). Such rights include, but are not limited to, patent rights, copyrights, trade secret rights, trademark rights, mask work rights and other proprietary rights throughout the world. Buyer hereby grants to Ingenia a nonexclusive, worldwide, limited license to use and exploit the Buyer Rights solely to the extent required for Ingenia to perform its obligations and exercise its rights hereunder.
Confidentiality. Each of Buyer and Ingenia acknowledges that in connection with the purchase and sale of Products or Services, each party may make available to the other party certain confidential and proprietary business and technical information and materials, including the Software (the "Confidential Information"). Confidential Information shall be clearly marked with proprietary legends of the disclosing party at the time of disclosure. If Confidential Information is orally or visually disclosed, it shall be reduced to writing and clearly marked with proprietary legends by disclosing party within 30 days of disclosure. All of the protections and restrictions in these Terms and Conditions as to the use and disclosure of Confidential Information shall apply during such 30-day period. Notwithstanding the foregoing, any information or material which by its nature and under the circumstances surrounding its disclosure is generally considered proprietary and confidential shall be deemed Confidential Information regardless of whether it is properly marked with legends or properly reduced to writing. Each party agrees that it (a) will hold the Confidential Information in strict confidence and use its reasonable efforts to prevent the unauthorized disclosure of the Confidential Information; (b) will not disclose the Confidential Information in any manner whatsoever, except as required by applicable law; (c) will use the Confidential Information only for the purpose of performing its obligations hereunder or in conjunction with the operation of the Products or Software and for no other purpose; and (d) will provide access to the Confidential Information to only those of its employees or representatives who need to know the Confidential Information for the purpose of performing their duties in connection with the Products or Services. These obligations shall not apply to information that: (i) was independently developed by or for the receiving party without use of the disclosing party's Confidential Information, in whole or in part, as demonstrated by written evidence; (ii) is or becomes generally available to the public without breach of confidentiality obligations by the receiving party; (iii) was in the receiving party's possession or was known by the receiving party without restriction at the time of disclosure by disclosing party, as demonstrated by written evidence; or (iv) is lawfully received by the receiving party on a non confidential basis from a third party without breach by such third party of any legal, contractual, or fiduciary obligation to the disclosing party.
Warranty; Disclaimer of Warranty
Ingenia’s Product Warranty. Except as otherwise expressly stated in Ingenia's quote or in the current operating manual or other written guarantee for any of the Products, Ingenia warrants that, for the period of time set forth in Section 7.3 below with respect to each Product or component type (the "Warranty Period"), the Products sold hereunder will be free from defects in material and workmanship, and will conform to the applicable specifications, under normal use and service when correctly installed and maintained. Ingenia shall repair or replace, at Ingenia's sole option, any defective or nonconforming Product or part thereof which is returned at Buyer's expense to Ingenia's facility, provided, that Buyer notifies Ingenia in writing promptly after discovery of the defect or nonconformity and within the Warranty Period. Products may only be returned by Buyer when accompanied by a return material authorization number ("RMA number") issued by Ingenia's Return Department, with freight prepaid by Buyer. Ingenia shall not be responsible for any damage occurring in transit or obligated to accept Products returned for warranty repair without a RMA number. The replacement by Ingenia of any defective or nonconforming Product is conditioned upon: (i) Product is within the Warranty period, (ii) the defect or nonconformity are responsibility or have arisen as a direct result of Ingenia’s errors or lack of diligence, (iii) the Product cannot be repaired. Buyer bears all risk of loss or damage to the Products until delivery at Ingenia's designated facility. Ingenia shall pay for shipment back to Buyer for Products repaired under warranty. For Products returned for repair that are not covered under warranty, Ingenia's standard repair charges shall be applicable in addition to all shipping expenses. Unless otherwise stated in Ingenia's repair quote, any such out-of-warranty repairs are warranted for ninety (90) days from date of sale (invoice date) of the repaired Product.
Other Product Warranty
Ingenia may act as distributor and seller of Products manufactured by AEROTECH Ltd. (Company duly incorporated under the laws of United Kingdom, VAT number GB314804283 and domiciled at The Old Brick Kiln, Ramsdell, Tadley, Hampshire RG26 5PR, United Kingdom), GALIL MOTION CONTROL INC. (Company duly incorporated under the laws of USA, Tax ID number 77-0019193 and domiciled at 270, Technology Way, Rocklin, California 95765, USA) and GURLEY PRECISIONS INSTURMENTS INC. (Company duly incorporated under the laws of USA, Tax ID number 14-1766649 and domiciled at 514 Fulton Street, Troy, New York 12180, USA). The Products included in this Section 7.2 which are distributed but not manufactured by Ingenia are warranted for the period of time set forth in the operating manual or other written guarantee included by manufacturer within the product package.
Warranty Period. All Products manufactured or sold by Ingenia, are warranted for a period of twelve (12) months from the date of delivery of the Product.
Warranty Exclusions. The above warranty does not apply to Products which are (a) repaired, modified or altered by any party other than Ingenia; (b) used in conjunction with equipment not provided or authorized by Ingenia; (c) subjected to unusual physical, thermal, or electrical stress, improper installation, misuse, abuse, accident or negligence in use, storage, transportation or handling, alteration, or tampering, or (d) considered a consumable item or an item requiring repair or replacement due to normal wear and tear. On-site warranty repair is not covered under the foregoing warranty. Buyer expressly exonerates Ingenia of any obligation of compensation to Buyer or third parties for damages, including lost profits that can be attributed to the malfunction of Products supplied by Ingenia, also in cases that these Products have been replaced or free repaired.
Disclaimer of Warranties; Exclusive Remedy. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, INGENIA MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, REGARDING THE PRODUCTS, SOFTWARE OR SERVICES. INGENIA EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE FOR THE PRODUCTS, SOFTWARE OR SERVICES. THE OBLIGATIONS OF INGENIA SET FORTH IN THIS SECTION SHALL BE INGENIA'S SOLE LIABILITY, AND BUYER'S SOLE REMEDY, FOR BREACH OF THE FOREGOING WARRANTY. Representations and warranties made by any person including manufacturers, distributors, dealers and representatives of Ingenia which are inconsistent or in conflict with the terms of this warranty shall not be binding on Ingenia unless otherwise agreed in writing and approved by an expressly authorized officer of Ingenia.
The primary point of contact for the purposes of technical support to the Buyer at Ingenia’s Technical Support is the following e-mail address: firstname.lastname@example.org.
Ingenia Indemnity. Ingenia shall indemnify and hold harmless Buyer from any final award of damages in any suit or proceeding instituted against Buyer based upon a claim that a Product or the Software sold or licensed hereunder infringes any patent or copyright of a third party. Ingenia shall defend, at its expense, any such suit or proceeding provided that: (a) Buyer gives Ingenia prompt notice in writing of any such suit and permits Ingenia through counsel of its choice, to answer the charge of infringement and defend such suit; and (b) Buyer gives Ingenia all the needed information, assistance and authority, at Ingenia's expense to enable Ingenia to defend such suit. Ingenia shall not be responsible for payment of any amounts under any settlement made without its prior written consent. The foregoing indemnity shall not apply to the extent such alleged or actual infringement arises as a result of (i) the use or incorporation of such Product or Software in a manner or in combination with any other products, devices or parts not specified in Ingenia's specifications therefor, or (ii) modifications of such Product or Software made by Buyer or any party (other than Ingenia) which were not approved by Ingenia, or (iii) Ingenia's compliance with any of Buyer's designs, specifications or instructions. In the event that a court of competent jurisdiction determines in a final, nonappealable order that the Product or the Software is infringing in a manner for which Ingenia is obligated to indemnify Buyer pursuant to this Section 9.1, Ingenia shall, at its option, either (1) procure for Buyer the right to continue using such infringing Product or Software; (2) replace the infringing Product or Software with a non-infringing item of like form, fit or function; (3) modify the Product or Software so that it no longer infringes; or (4) remove the Product or Software and refund the purchase price to Buyer. THIS SECTION STATES INGENIA'S SOLE RESPONSIBILITY AND LIABILITY, AND THE BUYER'S SOLE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT OR COPYRIGHT BY ANY PRODUCT OR SOFTWARE DELIVERED HEREUNDER OR ANY PARTS THEREOF. THIS SECTION IS IN LIEU OF AND REPLACES ANY OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTY AGAINST INFRINGEMENT. IN NO EVENT SHALL INGENIA BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY SUCH INFRINGEMENT.
Buyer Indemnity. Buyer shall indemnify and hold harmless Ingenia from and against any expense or loss resulting from any actual or alleged infringement of any patent or copyright arising as a result of (a) Ingenia's compliance with any of Buyer's designs, specifications or instructions, (b) the use or incorporation of such Product or Software in a manner or in combination with any other products, devices or parts not specified in Ingenia's specifications therefor, or (c) modifications of such Product or Software by Buyer or any party (other than Ingenia) which were not approved by Ingenia. Buyer shall defend, at its expense, any suit brought against Ingenia alleging any such infringement provided that Ingenia (i) gives Buyer prompt notice of any such suit and permits Buyer, through counsel of its choice, to defend such suit and (ii) gives Buyer all needed information, assistance and authority, at Buyer's expense, necessary for Buyer to defend any such suit.
Customer Furnished Material.
Customer Furnished Material risk and responsibility. In the event that Buyer, with Ingenia's prior approval, provides products, raw materials, fixtures or tools (collectively, the "Customer Furnished Material" or "CFM") to Ingenia for incorporation into, or use in the manufacture of, the Products, or in conjunction with the Services, Buyer shall retain title to, and shall continue to bear all risk of loss or damage to, such CFM. CFM IS PROVIDED BY BUYER AT BUYER'S RISK. IN NO EVENT SHALL INGENIA BE LIABLE FOR ANY LOSS OR DAMAGE TO SUCH CFM RESULTING FROM ANY CAUSE WHILE IN INGENIA'S POSSESSION. BUYER SHALL BE SOLELY RESPONSIBLE FOR INSURING THE CFM AGAINST ANY SUCH LOSS OR DAMAGE.
Ingenia CFM Inspection. CFM certification and quality are the responsibility of Buyer. All CFM is subject to inspection by Ingenia upon receipt, and Ingenia reserves the right to refuse the CFM and/or requote the order based upon such inspection. CFM is not guaranteed to yield Buyer's total order quantity. If material shortages occur due to yield, Buyer shall, at its option, either supply additional CFM to complete the order or close the order short. Any CFM not used by Ingenia will be returned to Buyer, at Buyer's risk and expense.
Limitation of Liability. INGENIA SHALL NOT BE LIABLE FOR ANY COMMERCIAL LOSSES, LOSS OF REVENUES OR PROFITS, LOSS OF GOOD WILL, INCONVENIENCE, OR EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, OR CLAIMS OF THIRD PARTIES, REGARDLESS OF THE FORM OF ANY CLAIM, WHETHER IN CONTRACT OR TORT, WHETHER FROM BREACH OF THIS AGREEMENT, OR DEFECTIVE PRODUCTS, OR LOSS OF DATA OR FROM ANY OTHER USE, EVEN IF INGENIA HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGE. INGENIA'S LIABILITY FOR LOSS OR DAMAGES SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE PARTICULAR PRODUCT.
The data provided by the Buyer, as well as those arising from the business relationship and/or delivery of products shall be incorporated into a file owned by Ingenia. The purpose of processing is to manage Buyer’s purchase, as well as Customer Service, care of inquiries and requests for information and claims management. Unless specifically stated otherwise, all data that we request in the registration process and forms available on the site are required, so that the failure of one of them could make it impossible for Ingenia to provide the services requested and/or fulfill Buyer’s requests. Please inform Ingenia immediately of any changes to Buyer’s data so that the information contained in Ingenia’s files is always updated and contains no errors. In this regard, the Buyer represents that the information and data provided is accurate, current and truthful. Buyer may also grant his express consent for the processing of its data by Ingenia in order to transmit business information (including electronic newsletters) on products marketed by Ingenia, and the activities and services developed by mail, email, SMS, or any other means of electronic communication. Buyer may exercise his rights of access, rectification, cancellation and opposition to the processing of Buyer’s personal data at any time by writing to the address indicated above or by sending an email to email@example.com, together with a copy of a valid identification document.
Exceptions to Performance. Ingenia's performance of its obligations will be excused or the timeframe for performance will be extended as is reasonably necessary under the circumstances, in the event that Ingenia is prevented from performing its obligations in whole or in part by riots, fire, flood, earthquake or other nature disasters, explosion, epidemics, war, strike or labor disputes, embargo, civil or military authority, fortuitous events, force majeure, changes in law, regulation or governmental policy, acts or omissions of vendors or suppliers, transportation difficulties or delays, or other causes beyond its reasonable control. In such event, such performance shall take place as soon thereafter as is reasonably practicable. Failure of the Buyer to provide timely response to requests from the Ingenia may also result in delivery delays which shall be excused hereunder.
Export. Buyer acknowledges and agrees that the Ultimate Origin of the Products and Software is in Spain, unless otherwise indicated in the Ingenia quote and/or order acknowledgment. Buyer shall not, nor shall Buyer authorize or permit its employees, distributors, customers, and/or agents to, export or re-export any of the Products or Software (including any information relating thereto) to any foreign national, nation, firm, or country, including foreign nationals employed by or associated with Buyer, without first complying with all Spanish laws, and the EU Trade regulations and/or ordinances , including the requirement for obtaining an export license, if applicable and the payment of any export taxes or duties, if necessary. Buyer agrees to defend, indemnify, and hold harmless Ingenia from and against any claim, loss, liability, expense, or damage (including liens or legal fees) incurred by Ingenia with respect to any of Buyer's export or re-export activities contrary to this provision.
Severability. If any provision of these Terms and Conditions is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall keep, nevertheless, in full force and effect. The parties agree to renegotiate in good faith any term held invalid and to be bound by the mutually agreed substitute provision in order to give the most approximate effect intended by the parties.
No Waiver. No waiver of any provision of these Terms and Conditions shall be valid or binding on any party unless agreed to in writing by the party to be charged. The failure of either party to enforce at any time any of the provisions of these Terms and Conditions, or the failure to require at any time performance by the other party of any of the provisions of these Terms and Conditions, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the validity of either party to enforce each and every such provision thereafter.
Remedies. Ingenia shall have the right to terminate any order, or to delay the shipment thereof, by reason of (a) Buyer's bankruptcy or insolvency, or the pendency of any proceedings against Buyer under any statute for the relief of debtors; (b) Buyer's breach of these Terms and Conditions; (c) Ingenia's learning that the ultimate destination of the Products is other than that set forth in the Ingenia quote; or (d) failure of Buyer to meet any other reasonable requirements established by Ingenia or to provide timely responses to requests from Ingenia (including acts or omissions of Buyer which may delay production).
Survival. In addition to any other term whose context may so require, the terms contained in Sections 1, 3, 4.1, 4.3, 6, 7, 9, 10, 11, 12.3, 12.6 and 12.7 will survive any cancellation of the Sales Confirmation.
Governing Law and Jurisdiction. These Terms and Conditions shall be construed under and according to the laws of Spain without regard to its conflict of law provisions. Each party hereby irrevocably submits to the exclusive jurisdiction of the Courts of the city of Barcelona, for the adjudication of any dispute hereunder or in connection herewith and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, or that such suit, action or proceeding is improper. The Vienna Convention on the International Sale of Goods shall not be applicable.
Attorney's Fees. In the event of any action, suit or proceeding relating to the subject matter hereof, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to recover its reasonable attorneys' fees and related costs from the non-prevailing party.