Unless otherwise agreed in writing between the Parties, these General Terms and Conditions of Sale and Service shall apply to the delivery of Products and Services provided by Mascyf S.L. (“Mascyf”), with Tax ID Number ES-B11086675 and registered office at C/ Prado del Rey s/n, 11011 Cádiz, Spain.
- Definitions:
1.1. The “Agreement” shall be interpreted as Mascyf’s Order Confirmation, its Specific Conditions, and these General Conditions.
1.2. The “Customer” shall be interpreted as the customer who, through an order for Products and/or Services, assigns Mascyf to supply the Products and/or Services.
1.3. The “Parties” shall be interpreted as the Customer and Mascyf.
1.4. The “Represented Party” shall be interpreted as the manufacturer or distributor of the products and services supplied to the Customer by Mascyf, which are not manufactured or performed directly by Mascyf.
1.5. The “Products” and/or “Services” shall be interpreted as the products and/or services supplied to the Customer by Mascyf.
1.6. The “Special Conditions” shall be interpreted as specific and individual conditions agreed upon by the Parties, which may supplement or modify the scope of the General Conditions of Sale and Service. They must be notified in writing in the Order Confirmation.
- Delivery, transfer of risk:
2.1. Products are supplied FCA Cádiz (Incoterms 2010) unless otherwise agreed by the Parties.
2.2. Orders for Products and/or Services must be formalized by the Customer in writing. An order from the Customer shall not be interpreted as an obligation to sell and/or provide services and shall not constitute a contractual relationship until it has been accepted by Mascyf through an Order Confirmation. The placement and submission of an order by the Customer implies acceptance of these General Terms and Conditions of Sale and Service.
2.3. The delivery times indicated are estimates and are not contractual unless explicitly stated in the order confirmation as “Guaranteed Delivery Time,” Therefore, a delay caused by a delay in the production of a material, transport, customs, or any other reason involved in the sales process beyond our reasonable control shall not give rise to a penalty or cancellation of the order by the customer, as detailed in Section 8.
- Exclusions:
3.1. Any fees associated with the delivery or collection of Products and/or Services, such as customs costs, port fees, airport fees, tariffs, surcharges, import, export, taxes (VAT or others), shall be borne by the Customer, unless otherwise specified in the quote or Order Confirmation.
3.2. Any expenses associated with the delivery or collection of Products and/or Services, such as handling, crane, storage, or boat service costs, shall be borne by the Customer, unless otherwise specified in the quote or Order Confirmation.
3.3. Any additional costs not detailed, or of a different amount to that finally incurred with respect to the Order Confirmation or quote for services and supplies for new installations, such as transport, travel, labor for repairs, materials, additional tests, or those associated with hidden defects at the site, shall be borne by the Customer.
3.4. Working hours outside of staff working hours (overtime) required due to urgency, for the performance of services or order management, shall be charged to the Customer (see prices).
3.5. Services requiring technical personnel to travel to vessels at anchor, as well as waiting times during travel caused by reasons beyond the control of our personnel, will incur an additional cost to be borne by the Customer (see prices).
3.6. The costs associated with specific occupational risk prevention plans for the execution of work will be borne by the Customer.
3.7. The costs associated with the intervention of technical personnel, materials, and travel used to verify the scope of the work and materials necessary for the purpose of preparing a quote will be charged to the Customer.
3.8. In expansion or improvement works, any additional costs (not detailed in the offer) necessary to adapt the equipment to be supplied/installed to the Customer’s existing facilities or other equipment will be charged to the Customer.
- Payment:
4.1 All payments must be made within thirty (30) days of the invoice date, unless otherwise stated in the quote or Order Confirmation. In the event of any delay in payment, Mascyf shall be entitled to charge interest for late payment in accordance with Directive 2011/7/EU of the European Parliament and of the Council of February 16, 2011.
4.2 The costs of transfers from outside Europe or in currencies other than the euro shall be borne entirely by the payer (OUR).
4.3. In the event of late payment, Mascyf reserves the right to temporarily suspend the delivery of Products or the performance of Services, to make deliveries and/or provide Services in accordance with guaranteed payments, or to cancel Orders and/or Services pending delivery.
4.4. In the event of non-payment without objective justification, Mascyf reserves the right to withdraw the certification and warranty of the Products and/or Services provided.
- Retention of title:
5.1. Mascyf shall remain the owner of the Products delivered to the Customer until the Customer has fulfilled all of its obligations under this Agreement, including, but not limited to, full payment (including any interest or other associated costs) for the Products ordered.
5.2. In the event of a breach by the Customer of its obligations to Mascyf under the General Terms and Conditions of Sale and Service, Mascyf shall be entitled to enforce the return of the Products delivered, which remain the property of Mascyf. The Customer, who shall be liable for any damage caused to or suffered by the Products, shall take the necessary measures to ensure the proper care and protection of the Products, adequately insuring them against loss or damage, and storing them in such a way that they remain recognizable.
- Warranty:
6.1. The Customer must inspect the Products upon receipt. Mascyf shall not be liable for damage, errors in quantities, or other errors in the contents of a shipment unless notified within five (5) business days of receipt.
6.2. Mascyf guarantees through its Representative that the Products supplied shall be free from defects in both their manufacture and the condition of their components, provided they are used and handled correctly, in accordance with the contractual specifications of each Product, the manufacturer’s instructions, and applicable regulations. Mascyf reserves the right to choose to repair, completely replace, or replace defective components of the Products. The Customer shall allow Mascyf a reasonable period of time to repair, replace, or replace defective components of the Products. The Customer shall not return any Product without Mascyf’s prior written consent.
6.3. The warranty period shall be twelve (12) months for the Products supplied, or longer in accordance with the coverage provided by the manufacturer of the equipment supplied and after delivery as detailed in point 2.1.
The Customer must inform Mascyf of any defects, as detailed in Section 14, within a reasonable time once they become aware of the defects. If notification is not provided within the specified period, the claim will not be accepted.
6.4. The Customer undertakes to assist Mascyf and/or the Product manufacturer, if so requested, in the removal of defective Products or components of the Products from end users of the equipment or third parties, as well as in the return of the aforementioned Products or components for repair, substitution, or replacement. In the event of customer assistance in accordance with the above, Mascyf or the Manufacturer shall bear the costs of transport from Mascyf’s premises to those of the Representative’s technical assistance service. Expenses for the travel of technical personnel outside the province of Cadiz or other costs shall be borne by the Customer, unless otherwise agreed by both Parties.
6.5. Mascyf reserves the right to pass on to the Customer the costs associated with transportation, procedures, and/or verification of Product incidents under the circumstances described in Section 6.6.
6.6. Claims under this Section 6 shall not apply in the event that:
6.6.1. the Products have been used for a purpose other than that for which they were designed, or have been used, maintained, or operated in a manner inconsistent with the manufacturer’s instructions;
6.6.2. the Products have been repaired or altered by the Customer or a third party, unless such repair or alteration has been expressly approved by Mascyf or the equipment manufacturer; or
6.6.3. the damage, defect, or malfunction has been caused by negligence on the part of the Customer or a third party or as a result of a third party’s use, alteration, or adjustment of the Product not in accordance with Mascyf’s and/or the equipment manufacturer’s guidelines; or caused by normal wear and tear from use of the Product.
6.7 With the exception of the general warranties expressed in Section 6, those expressed in the Special Conditions agreed with the Customer or those covered by the Representative, Mascyf waives any other warranties, conditions, commitments, and/or obligations.
- Liability:
7.1. To the extent permitted by applicable law, Mascyf’s liability under this Agreement shall be limited to material or personal damages caused by negligence on the part of Mascyf or its employees. Mascyf’s liability shall cover only compensation for direct loss and shall in each case be limited
to the sum corresponding to the value of the order as specified in the Order Confirmation.
7.2. Under no circumstances shall Mascyf be liable for indirect, punitive, special, incidental, or consequential damages, losses, or expenses suffered by the Customer (including, but not limited to, loss of profits, goodwill, revenue, benefits, or other economic damage) even if Mascyf has been advised of the possibility of such damages, beyond what may be determined by applicable law.
7.3. It shall be the Customer’s responsibility to remove their equipment from our facilities within a period not exceeding four (4) weeks after completion of the work, our work has been discarded, the equipment has been rejected or condemned, unless a specific period has been agreed upon. If the equipment is not collected from our facilities after the deadline has expired, and the Customer has been notified, Mascyf reserves the right to:
7.3.1. Dispose of the equipment within an additional four (4) weeks if the Customer ignores Mascyf’s communications in this regard; and
7.3.2. Charge a daily fee for storage at our facilities.
- Force Majeure:
8.1. Mascyf shall not be liable for any failure to perform or delay in performing its obligations hereunder where such failure or delay is due to circumstances beyond its reasonable control, which Mascyf could not reasonably have foreseen on the date these terms and conditions came into effect, and the consequences of which Mascyf could not have avoided or overcome.
Such circumstances shall include, but are not limited to, natural disasters, pandemics, power failures, communication service failures, labor disputes, shortages or lack of materials, components, or transportation services, delays or shortages from suppliers, or legislative changes, orders, or intervention by government authorities.
8.2. In the event that, during a Force Majeure event lasting for a cumulative period exceeding four (4) months, the Parties are unable to formalize a new Agreement within fourteen (14) business days of Mascyf receiving written notification from the Customer, both Mascyf and the Customer shall have the right to cancel this Agreement.
- Order Cancellation and/or Returns:
9.1. Requests for order cancellations after the Order Confirmation or Return Confirmation has been issued must be notified in accordance with Section 14 and are subject to evaluation and acceptance by Mascyf, which may pass on costs associated with administrative, purchasing, production, transportation, import/export procedures, or penalties imposed by third parties.
9.2. Return requests must be notified in writing within a maximum of 7 calendar days after delivery of the Products, detailing the Order Confirmation number, delivery note, or invoice. Such requests will be evaluated by Mascyf, who must communicate the acceptance or rejection of the return request within a reasonable period of time.
9.3. The Customer will have a period of two (2) weeks to deliver the Products to Mascyf’s facilities. Upon receipt of the material, Mascyf will have two (2) weeks to evaluate the condition of the Products, or that indicated by the Representative if applicable, and accept or reject the return request.
9.4. Products received must be in the same condition in which they were shipped, in their original packaging, and free from alterations or tampering.
9.5. Mascyf reserves the right to reject returns or cancel orders that are in process, where the purchase, import, export, or manufacture of Products cannot be reversed.
9.6. The costs of repair, inspection, and testing during equipment servicing, as quoted and accepted by the Customer, cannot be canceled once the contracted work has been completed, regardless of whether or not the equipment passes (due to rejection or condemnation) the required inspections and tests.
- Confidentiality:
10.1. The Parties agree not to disclose to third parties any technical or commercial information received from the other Party under this Agreement, except with the prior written consent of the other Party. Each Party shall ensure that this confidentiality extends to its employees or any subcontractors.
10.2. The agreed confidentiality does not apply to:
10.2.1. information that is in the public domain on the date of its disclosure or that later becomes in the public domain through no fault of the receiving Party;
10.2.2. information proven to be known to the receiving Party prior to disclosure by the disclosing Party, as evidenced by the receiving Party’s written records;
10.2.3. information whose disclosure is required by law or by a court of competent jurisdiction; or
10.2.4. information that is independently developed by or for the receiving Party, as evidenced by the receiving Party’s written records.
- Intellectual Property Rights:
Title, ownership rights, and intellectual property rights in the Product, or any other technical information related to the Product, shall remain the exclusive property of Mascyf or its Representative.
The Customer acknowledges such ownership and intellectual property rights and undertakes not to take any action that jeopardizes, limits, or interferes in any way with the rights of Mascyf or its Representative with respect to the Product.
The Customer may not remove or modify any Mascyf or its Representative markings or information on the Products.
- Termination:
In the event of a material breach of its obligations under this Agreement by either Party, which is not remedied within thirty (30) days of written notice, the non-breaching Party may exercise its right to terminate this Agreement with immediate effect.
- Amendments:
Any amendment to this Agreement must be made in writing and signed by both Parties.
- Notifications:
Any required notification must be made in Spanish or English, in writing, and must be delivered with acknowledgment of receipt: (i) in person, (ii) by certified mail with certification of content, (iii) by email, or (iv) by fax.
- Entire Agreement: This Agreement constitutes the entire agreement between the Parties with respect to the delivery of the Products and Services, and supersedes any prior understanding. In the event of a conflict between the Special Conditions and these General Conditions of Sale and Service, the Special Conditions shall apply. No change or modification to this Agreement shall be acceptable unless made in writing and signed by both Parties.
- Applicable legislation: Any action relating to this Agreement shall be governed by Spanish law and submitted to the Courts of Cádiz. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof, shall be arbitrated in accordance with the rules of the Spanish Court of Arbitration of the Spanish Chamber of Commerce. If for any reason any provision, or part thereof, is unenforceable, this Agreement shall be enforceable with the omitted provisions.