GENERAL SALES CONDITIONS
Artículo 1.- Purpose
This document sets out the General Conditions of Sale and Services (hereinafter the “GCS”) which will govern all commercial transactions between the company ENDURANCE MOTIVE, S.A. (hereinafter “ENDURANCE MOTIVE”) and the CLIENT, and automatically becomes a Contract between the parties, which begins to be in force as soon as an Offer is accepted by the CLIENT, and remains in force throughout the commercial relationship between ENDURANCE MOTIVE and the CLIENT. In other words, the acceptance of an Offer implies the prior knowledge and express and unreserved acceptance by the CLIENT of these General Terms and Conditions of Sale, which apply in all their provisions, unless otherwise expressly stated in the Order Acceptance, in which case they apply by priority. These Terms and Conditions of Sale are considered to have been communicated to the CLIENT from the moment that the CLIENT is informed of the website where they are located, or if the CLIENT has received them in the context of its commercial relationship with ENDURANCE MOTIVE. ENDURANCE MOTIVE reserves the right to modify these GCS. Last revision: JULY 2018.
These GCS will be valid unless a special agreement between ENDURANCE MOTIVE and the CLIENT is expressly included in the Order Acceptance. Henceforth, ENDURANCE MOTIVE and the CLIENT will be jointly referred to as “the parties”. In these GTC and in any order or offer, the following words shall have the following meaning:
“Offer”: document offering the performance of the Product by ENDURANCE MOTIVE and addressed to the CLIENT, which includes the technical characteristics of the Product, as well as its number, prices, delivery time and validity.
“Acceptance of the Offer” or “Order”: document in which the CLIENT accepts ENDURANCE MOTIVE’s Offer under the conditions set out in the Offer and in accordance with these GCS, and which also formalises each of the requests or orders for Products made by the CLIENT to ENDURANCE MOTIVE in accordance with these GCS.
“Acceptance of the Order”: document by which ENDURANCE MOTIVE accepts the Order or the Acceptance of the Offer made by the CLIENT, under the conditions established in the Offer and in accordance with these GCS. The contract is deemed to have been concluded at the time when ENDURANCE MOTIVE notifies the CLIENT of the acceptance of the Order.
“Product”: a set of MOTOR ENDURANCE goods whose technical characteristics are set out in the MOTOR ENDURANCE Supply Offer.
ENDURANCE MOTIVE reserves the right to make modifications to the quality of the materials or to the configuration of the product, provided that these modifications do not affect the guarantee and operation of the product.
“Working day”: means any day (other than Saturday or Sunday) that is not a public holiday in the Valencian capital.
Artículo 2.- Entry into force and duration
The GCS will take effect from the moment the CLIENT accepts the Offer, and will remain in force for the entire duration of the commercial relationship between ENDURANCE MOTIVE and the CLIENT, as established in the Offer.
Artículo 3.- Contractual process: Offers and orders
ENDURANCE MOTIVE will send or communicate to the CLIENT its Offer to supply the Product, with the technical characteristics of the Product, as well as its number, prices, delivery time and validity. The CLIENT will proceed with the acceptance of this OFFER and the specific order or request for products in accordance with these GCS in the same document. Acceptance of the offer and the order by the CUSTOMER must be made in writing, by fax or by e-mail. Acceptance of an Offer by the CLIENT implies acceptance of these GCS, which must be understood as an integral part of each Offer and each Order Acceptance, even if these documents do not expressly refer to them, so that all the terms, conditions and particular specifications included or attached to the CLIENT’s Order will not be effective or valid, unless they have been included in the Order Acceptance by ENDURANCE MOTIVE. Orders placed by any CLIENT constitute a firm promise to purchase by the CLIENT, although they are not considered to be accepted by ENDURANCE MOTIVE until the CLIENT has notified Order Acceptance in writing by e-mail. In case of agreement, ENDURANCE MOTIVE will notify the CLIENT of the Order Acceptance made by the CLIENT under the conditions established in the Offer and in accordance with these GTC, unless the parties agree on a particular condition which must be expressly included in the Order Acceptance.
Artículo 4.- Delivery, transport and reception conditions
The delivery times established in the Offer are considered as guidelines; therefore, the specific delivery times are confirmed by ENDURANCE MOTIVE with the Acceptance of the Order and start from the working day following the date on which the CLIENT has received the Acceptance of the Order.
ENDURANCE MOTIVE does not incur any penalty, sanction or obligation of compensation for unforeseen and duly justified situations that prevent the timely delivery of the Order, in particular, it does not incur any penalty in the event of a delay in the delivery of the Order resulting from the delay or lack of supply by ENDURANCE MOTIVE’s suppliers of the components necessary for the manufacture of the Product. By default, delivery of the Product to the CLIENT must be made ex works EXW (Loriguila), interpreted in accordance with the Incoterms in force on the date of Acceptance of the Order, which is why the Prices set out in these GCS do not include transport, loading and unloading, or insurance at the delivery address. The CUSTOMER has the right to cancel the Order placed, only in the event of a manifest breach of MOTIVE ENDURANCE, in terms of the delivery time for the entire Product, and only if this breach of delivery within the established time limit (i) is not rectified within a reasonable period of time; or (ii) is not justifiable in accordance with the provisions of these GCS. Furthermore, ENDURANCE MOTIVE reserves the right to extend the delivery time of the Product during the period in which the CUSTOMER does not comply with an obligation contracted with ENDURANCE MOTIVE, without prejudice to the right to cancel the acceptance of the order in accordance with these GCS. The CLIENT is obliged to check the condition of the Product received immediately. In the event of total or partial deterioration being observed, the CLIENT must inform ENDURANCE MOTIVE in writing within a maximum period of forty-eight (72) hours, expressly indicating the defects observed. After this period, it will be understood that the Product has been accepted by the CLIENT. If, within this period, the CLIENT notifies ENDURANCE MOTIVE of a significant defect in the Product received, ENDURANCE MOTIVE may choose to repair or replace the Product or to accept its return. ENDURANCE MOTIVE can make partial deliveries and invoice these deliveries separately. These partial deliveries do not release the CUSTOMER from its obligation to purchase the remainder of the order.
Artículo 5.- Prices and terms of payment
The price of the Product will be established in the Offer and confirmed in the Acceptance of the Order by ENDURANCE MOTIVE. The referenced price is always EXW, exclusive of taxes, additional packaging, transport, among others, unless the Parties agree in writing to establish other conditions and these are expressly included in the Order Acceptance.
One hundred percent (100%) of the price will be paid, by bank transfer or in cash, at the time of shipment of the product by ENDURANCE MOTIVE.
All payments must be made in Euros. The invoice will be issued once the amount has been credited to the bank account of ENDURANCE MOTIVE.
The Product remains the property of ENDURANCE MOTIVE until the CLIENT has fulfilled all its obligations arising from the business relationship and until all sums due by the CLIENT under the relevant Order Acceptance or other previous Order Acceptances have been paid in full by the CLIENT to ENDURANCE MOTIVE, including, where applicable, damages, costs, late payment interest or any other sum due by the CLIENT to ENDURANCE MOTIVE.
ENDURANCE MOTIVE will inform the CUSTOMER by e-mail of the availability of the product after its manufacture for delivery. The CUSTOMER undertakes to pay the price to ENDURANCE MOTIVE within a maximum period of FOURTY- EIGHT (48) hours from receipt of the notice of availability of the Product. Otherwise, ENDURANCE MOTIVE is entitled to store this product in a warehouse at the expense and risk of the CLIENT and to demand payment, including storage costs, as if it had actually been delivered. If the CLIENT has not paid for the Product within five (5) calendar days from the end of the previous forty-eight (48) hour period, ENDURANCE MOTIVE may freely dispose of it, but undertakes to provide the Order established in the document “Order Acceptance” within thirty (30) calendar days from the date of payment of the Product by the CLIENT.
In the event of late payment, the sums owed by the CLIENT shall, without prior formal notice, bear annual interest at the EURIBOR rate in force on the due date, plus five (5) percentage points.
In addition, the CUSTOMER undertakes to pay the costs incurred by ENDURANCE MOTIVE for the recovery of the sum due.
Artículo 6.- Guarantees
This warranty applies in cases where the product has hidden defects or defects that appear after delivery of the product and that make it unsuitable for the performance of the functions for which it was manufactured, with the limitations and exclusions contained in the conditions set out in each warranty document.
Henceforth, the “CUSTOMER” will be understood as the natural or legal person who acquires the Product with the “ENDURANCE MOTIVE” trademark for the use for which it was manufactured, i.e. as lithium-ion batteries for electromobility applications, all in accordance with the technical conditions of the Product.
ENDURANCE MOTIVE will provide the CUSTOMER with the corresponding guarantee with the delivery of the invoice. This guarantee will also be available on the ENDURANCE MOTIVE website (www.endurancemotive.com).
However, in the foregoing, ENDURANCE MOTIVE guarantees the CUSTOMER that the Product will be free of material and manufacturing defects for a period of 2 years from the date of commissioning, provided that this has been carried out within a maximum period of 3 months from the date of purchase (date of the invoice).
ENDURANCE MOTIVE’s sole responsibility under this guarantee, except for those established by law and those provided for by Law 23/2003 on guarantees in the sale of consumer goods and Royal Legislative Decree 1/2007 of 16 November approving the revised text for consumers and users (in the event that the delivery of the product is considered to be the delivery of a consumer good), will be to repair the product or replace it in accordance with the provisions of the corresponding guarantee. In the event that such repair or replacement is not reasonable or feasible, ENDURANCE MOTIVE will refund the sale price to the CLIENT.
The repair will be carried out in the facilities of ENDURANCE MOTIVE or in the facilities of the designated technical service. In the event that ENDURANCE MOTIVE or the technical service designated by it determines that the product is not defective, ENDURANCE MOTIVE or the technical service designated by it is authorised to charge the CLIENT a fee for carrying out these checks.
The above warranty does not cover damage or defects due to: (i) Incorrect handling or maintenance of the product due to failure to follow the starting and operating instructions provided by ENDURANCE MOTIVE, (ii) Use of the CHARGER not authorised by ENDURANCE MOTIVE, (iii) Repair or modification of the product by a technical service not authorised by ENDURANCE MOTIVE or with the incorporation and/or use of elements or equipment other than those used by ENDURANCE MOTIVE, (iv) Abuse, neglect or misuse of the Product, (v) Product defects caused by atmospheric discharge, fire, flood, accidental breakage, actions of third parties and/or any other event beyond the reasonable control of ENDURANCE MOTIVE and occurring during normal installation or use, (vi) normal wear and tear of the product, whether normal wear and tear due to operation or external causes, or extraordinary wear and tear or failure due to operational overload, misuse or external causes such as excessive humidity, dust, corrosive substances, electromagnetic fields, static energy, operating parameters outside the technical specifications, variations in the quality of the power supply or a faulty Internet connection, (Vi) Use of the product in applications or devices not contemplated or permitted in the data sheet General Terms and Conditions of Sale Endurance Motive, S. L. of the product, (Vii) Installation and use of the product outside the territory of the European Community.
A product whose serial number has been falsified or which cannot be reliably identified will not be covered by this warranty.
Artículo 7.- Limitation of liability.
ENDURANCE MOTIVE’s maximum liability towards the CLIENT, for any concept whatsoever, is limited quantitatively to the price of the product (to which the claim refers) paid by the CLIENT.
ENDURANCE MOTIVE is only liable, in accordance with the quantitative limit fixed above, for the direct damage actually caused to the CLIENT, and therefore any indirect damage, such as loss of profit, loss of use, loss of data or any other commercial damage or economic advantage, as well as any moral damage or damage to the reputation that the CLIENT may have suffered, is excluded. The CLIENT is aware of and expressly accepts these limitations of liability, which also apply to its customers and third parties.
Artículo 8.- Insurance
Each of the parties must take out and maintain the necessary insurance in accordance with applicable legislation and good practice.
Artículo 9.- Force majeure
Any unforeseen or unavoidable event that makes it extraordinarily difficult or impossible for either party to meet its obligations is considered a case of force majeure. To this end, the delay in the receipt of the Product by the CLIENT will not be considered as a cause of Force Majeure, nor will circumstances that are not communicated to ENDURANCE MOTIVE within five (5) days from the occurrence of the causes that give rise to the Force Majeure, with an expression of the same and the time limit foreseen, as well as the alternative measures adopted or adoptable to resolve or minimise as far as possible the inconveniences that may result from the said Force Majeure. When a case of Force Majeure occurs, the compliance period shall be extended by the number of days during which the Force Majeure has been extended. If the event of force majeure lasts for more than ninety (90) days or if, given the circumstances, it is obvious that it will last ninety (90) days, one of the parties may cancel the order by sending written notification to the other party.
Artículo 10.- Assignment
The CLIENT may not assign, transfer, substitute or subrogate the rights and obligations contracted under this contract without the express written agreement of ENDURANCE MOTIVE.
Artículo 11.- Confidentiality
Any documentation, of any nature or medium whatsoever, attached by ENDURANCE MOTIVE to the Offer or the acceptance of the Order will be considered as “confidential information”; consequently, the CLIENT is obliged not to use or disclose to third parties this confidential information, nor the existence of the commercial relationship with ENDURANCE MOTIVE. The transmission of confidential information by the CLIENT to its employees must only be carried out when it is strictly necessary to achieve the objectives of these GCS, In any event, the CUSTOMER guarantees that the said employees respect the obligation of confidentiality contained in the previous paragraph.
Artículo 12.- Resolution
In the event that either party : (i) does not substantially comply with any of the obligations assumed under the Ordinance, as well as all or part of the clauses of the GTC; (ii) terminates its legal personality; (iii) ceases its activities for any reason whatsoever ; or (iv) any circumstance occurs which makes the uninterrupted performance of the obligations assumed under the Order so complicated that it cannot reasonably be foreseen that it may continue to be performed; the non-defaulting party shall be entitled to cancel the Order without incurring any costs, by giving the defaulting party thirty (30) days’ written notice.
Artículo 13.- Nullity of clauses
If any clause contained in these GTC is declared null or inapplicable, in whole or in part, such nullity or inapplicability shall not extend to the rest of the clauses, which shall remain in force; the parties agree to replace any clause that becomes null or inapplicable with another valid clause, having as similar an effect as possible.
Artículo 14.- Industrial and intellectual property rights
The purchase and sale of the Product only confers on the CLIENT the right to use it in accordance with its destination and in no case confers on the CLIENT any industrial or intellectual property right on the said Product, on the technologies inherent to it or on the brands held by ENDURANCE MOTIVE, nor in general any power to carry out reverse engineering procedures on the said Product.
Likewise, the CLIENT acknowledges that Acceptance of the Offer does not confer the right to use or know any type of know-how, design, invention, technology, calculation, method, solution, idea, trade secret or confidential information belonging to ENDURANCE MOTIVE, nor the right to appropriate the descriptions and technical information contained in the Product other than for the purpose of using it for the assembly, operation and maintenance of the Product.
Artículo 15.- No renunciation
Any timely waiver by ENDURANCE MOTIVE of one of its rights does not imply a waiver of these rights, nor does it limit the exercise of these rights by ENDURANCE MOTIVE at a later date.
Artículo 16.-Applicable legislation and competent jurisdiction
The Order, as well as these GCS, and any other contractual relationship established between the Parties in relation to the Order, will be subject to Spanish law and interpreted in accordance with it.
The Parties, expressly waiving their own jurisdiction, expressly submit to the Courts and Tribunals of the city of Valencia, for any conflict and/or dispute that may arise from the interpretation, validity or compliance with these GCS.
Artículo 17.- Data Protection Act.
ENDURANCE MOTIVE undertakes to comply with the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (hereinafter, “DPA”) with regard to the personal data that may be processed by ENDURANCE MOTIVE.
The CLIENT’s data will be used for the purpose of maintaining the business relationship with the CLIENT, to provide the contracted services, to improve the operation, use and exploitation of the Product, to facilitate the diagnosis of possible problems in it, as well as to facilitate the updating of the software included in the Product, and will not be transferred to third parties, with the exception of data that must be transferred to third parties in accordance with the applicable regulations. Insofar as ENDURANCE MOTIVE, in addition to the delivery of the Product, can provide after-sales service, assistance to the customer and monitoring of the operation of the Product, the CUSTOMER expressly consents, with the acceptance of these GCS, to the collection and processing of his/her personal data, as well as the operating results obtained with the Product, which will be processed in accordance with the regulations by ENDURANCE MOTIVE, which is responsible for their treatment. ENDURANCE MOTIVE informs the CLIENT of his/her right to obtain information on the existence of processing of his/her personal data, to access the information and personal data held by ENDURANCE MOTIVE, to request the rectification of inaccurate data or, where appropriate, to request the deletion of the data, when, among other things, the data is no longer necessary for the purposes for which it was collected or the person concerned withdraws the consent he/she has given. In certain cases, the data subject may request the limitation of the processing of his or her data, in which case the data will only be kept in accordance with the regulations in force. In certain cases, you may exercise your right to portability of the data, which will be delivered in an appropriate, commonly used or machine- readable format to you or to the new data controller designated by you. You have the right to revoke consent at any time for any processing for which you have given it.
ENDURANCE MOTIVE provides you with forms for the exercise of any of the above-mentioned rights, for which you should contact us at the following e-mail address info@ endurancemotive.com, requesting the model you require.
Likewise, you may use the forms made available to you by the Spanish Data Protection Agency or third parties. These forms must be signed electronically or accompanied by a photocopy of your identity card. If you are acting through a representative, you must also be accompanied by a copy of your identity card or electronic signature. The forms must be presented in person at the ENDURANCE MOTIVE address indicated above or, where appropriate, sent by e-mail. You have the right to lodge a complaint with the Spanish Data Protection Agency if you feel that your claim has not been properly dealt with. The maximum period of time to be resolved by ENDURANCE MOTIVE S.A. is one month from the effective receipt of your request by us.