The supply refers, on one hand, to the sale‐purchase of the constituent elements of the 3D&FAT System and, on the other, to the transfer of the Operating Licence of the 3D&FAT system. Relations between All Rail Systems, S.L. (ARS) as the selling party and the Licence issuer (hereinafter, collectively the Seller) and the purchasing party and Licence concessionaire (hereinafter collectively referred to as the Buyer), shall be governed by the clauses appearing in the sale‐purchase and transfer of Operating Licence contract (hereinafter the Contract) signed between the parties.  

When a Regular Order is placed, express acceptance of these General Conditions for Supply shall be considered as made.

For all matters not covered by the said Contract (or Regular Order), these General Conditions for Supply shall be in full force and effect and shall prevail, in all cases, over the Buyer’s purchase conditions, if any.   Both parties agree to accept and to be subject to the rules and terms contained in the applicable Incoterms published by the International Chamber of Commerce (ICC)

  

 2- Scope and description of the supply  

The name 3D&FAT, refers to a Train Derailment Detection and Automatic Braking Device and as its name suggests, it is a system installed in a towed railcar or goods or freight wagon o passengers (hereinafter referred to wagon) with bogies. It is meant to detect derailment of any of its wheels at the very instant when it takes place, immediately and automatically causing the entire train to brake. Thus the 3D&FAT system is not capable of preventing or avoiding derailment of the train and is activated only when a derailment occurs. The Seller declares that if the system is correctly installed and the device is maintained in good working condition, when a wagon equipped with the 3D&FAT system derails, the device will be capable of detecting the same in the majority of circumstances, converting this fact into a pneumatic signal transmitted to the brake valve, to immediately cause the train to brake, regardless of its speed.   

 

The 3D&FAT may not act (or act not reduce damage) in certain accidents, such as: overturned in a curve, both speeding and low speed (excessive camber), bridge collapse, landslide and/or detachment lands, frontal, side or rear shocks. In general, any cause (such as hurricane side winds, earthquakes, tsunamis, etc.) that destabilizes the wagon, if there has not been previous derailment.

 

The 3D&FAT system comprises the following elements:

The scope of the supply only includes:

Consequently, the scope of supply does not include:

The 3D&FAT system, is a patented product and has industrial property protection. It was invented and developed by the railway staff of Feve (at present integrated into Adif‐Renfe). The scope of supply includes purchase by the Buyer of the constituent elements of the 3D&FAT system, defined in Chapter 2 and the award of an Operating Licence that authorizes the Buyer to use the 3D&FAT system, for an indefinite period of time, provided that it faithfully complies with the conditions stated in this chapter.

 

The said Operating Licence authorizes the Buyer to:

The Operating Licence does not authorize the Buyer in any way to:

As a consequence of the above and to maintain the validity of the Operating Licence transfer, the Buyer undertakes and is obliged to:

The Buyer can make use of the Operating Licence for an indefinite period of time, if it faithfully complies with the above mentioned conditions or those agreed upon in the Contract or Order.   If the Seller observes lack of compliance or clear default by the Buyer of the said conditions, it can revoke the Operating Licence and consequently the Buyer will lose the authorization to utilize the system. In such an event, the Seller will have the right to recover the goods supplied and the Buyer the right to recover a part of the amount paid for the supply, which depending on the condition of the system and the time elapsed since the date of signing of the Contract, shall not exceed 30% in any event. In the Contract, the parties shall mutually draft the clauses that will govern the said situation. Besides the actions referred to in the previous paragraph, the Seller reserves the right to legally claim damages and losses, in the national or state tribunals where the Buyer is based and/or the Barcelona Courts (Spain), when it is of the opinion that there has been a violation of legitimate interests, with regard to its industrial, intellectual property, patents and/or trademarks

Based on prior information provided by the Buyer (normally in the form of responses to the questionnaire sent by the Selling Party) the Seller, shall conduct a Technical Study, according to the corresponding order, in order to evaluate the possibility of adapting 3D&FAT system to the type/s of wagons that the Buyer owns and design the required elements to ensure its proper functioning.    The number of different Studies to be conducted will depend on the number of different models or bogies that are part of the Buyer’s fleet. The Seller is only obliged to conduct the Study or Studies that are agreed upon in the Contract, and the costs incurred on account of new inclusions shall be borne by the Buyer.   The 3D&FAT system should not be installed in wagons for which the corresponding Study has not been conducted beforehand. The Seller declines all responsibility if the Buyer does not comply with this requisite, whether intentionally or not. The Seller shall not be liable for any claims, if the result of the study does not permit installation of the 3D&FAT, for causes not attributable to it.

 

Chapter 2 of the scope of supply includes the option of the Seller dispatching the required technical staff to the Buyer’s workshop, in order to provide “in situ” training of the staff assigned by the Buyer, to install the 3D&FAT system in the initial wagons. The said technical staff will hand over necessary and sufficient Assembling Instructions, so that the Buyer’s technical staff is able to assemble the remaining systems sold to it by following the same.   The Buyer must place required staff and required means, tools and consumables, along with pipes, brackets and elements not included in the supply, which may be required for assembly and installation of the 3D&FAT system at the disposal of the Seller’s technicians.   Unless expressly indicated otherwise, the cost of travel, lodging and boarding of the technical staff dispatched, is not included in the offer or contract and therefore shall be billed separately.

 

The Seller shall only undertake to comply with the clauses or agreements deriving from the Contract signed by the parties and comply with the present General Conditions for Supply. Any other document, such as offers, verbal or telephonic communications, catalogues etc. made directly as well as through commercial representatives, shall be of no value if they contradict the above.   Any modification that any of the parties wishes to make to the content of the Contract clauses or to these General Conditions for Supply shall require written acceptance by the other party.

The order, confirmation of the same and these General Conditions for Supply shall only be legally effective from the date on which the Contract is signed by both parties.

 

The price indicated in the offers and the Contract, is understood as net, exclusive of all taxes, expressed in Euros and with the goods properly packaged and delivered by EXW FACTORY, at the place agreed upon in the Contract (applicable Incoterms)   The mode of payment shall be, typically:

• An initial payment, for an amount that is equal to 40% of the total amount of the supply, made by bank transfer to the account indicated in advance by the Seller.
• The total amount remaining for the supply, shall be paid, when the Seller makes the  goods that are the object of the supply available to the Buyer, by cash or irrevocable and confirmed letter of credit (Spanish or a first class international bank).
• The place of payment shall be the Seller’s domicile.

 

The delivery period is calculated, unless otherwise agreed upon, from the date of confirmation of the order, or from the date on which the signing of the Contract takes place and the initial payment amount has been paid on the set date.   The Seller undertakes to make all necessary efforts to comply with the delivery date or dates stated in the Contract. If in spite of this rule, a delay of more than 15 days occurs that is attributable to the Seller, except in the case of Force Majeure circumstances and this delay results in evident economic damages for the Buyer, based on documentary proof provided by it of the same, the Seller can accept a maximum monetary penalty equivalent to 0.5% of the total amount of the Contract, for each full additional week of delay, with a maximum of 5% for all items.5% del importe total del Contrato, por cada semana adicional completa de retraso, con un máximo por todos los conceptos del 5%.

 

As indicated in chapter 7, the delivery is done by EXW FACTORY, in the place agreed upon in the Contract (applicable Incoterms). Both the delivery as well as the transfer of risks shall be as indicated by the applicable Incoterms.

 

In case of a totally or partially defective supply, including the absence of properties or qualities that were promised, the following rules shall be applicable:

• The Seller undertakes, at his discretion, to repair or re‐supply all those parts that are unusable or damaged in terms of their utility because of reasons occurring prior to the date of transfer of risk and the Seller must bear the cost of the same (in particular due to manufacturing defects, use of inadequate materials or deficient execution).
• The Seller shall not be liable, in any event, for those damages or defects that have been caused by: improper or inadequate use, incorrect assembly or commissioning done by the Buyer or third parties, natural wear and tear, defective or negligent handling, inadequate operation, inadequate assembling materials, if these are not attributable to any fault by the Seller.
• The guarantee period shall be 12 months, calculated from the date on which the object of the supply is used or operated for the first time, but for a maximum of 18 months from the date of delivery. For the guarantee period to be valid, the Buyer must inform the Seller, in writing, of the location of the system’s component parts, as indicated in chapter 3.
• Any expenses incurred in the correction of faults or defects shall be borne by the Seller, in addition to dispatch costs accrued in Spanish territory. The rest of the expenses shall be borne by the Buyer.
• The Buyer undertakes to resend the part or parts that are defective to the Seller, upon request.
• When the correction of the defects is to be done at the place of installation, the Buyer shall provide the staff and support facilities for the same.
• In case of repairs or replacement of parts, the above warranty prescriptions shall be applicable. The Seller’s responsibility ends when the above mentioned initial guarantee period ends. This period may be extended by the duration of any service interruptions caused by the repair work.
• The Seller shall not provide any additional guarantee if it is not agreed upon in the Contract.

Any claims made by the Buyer due to a clearly incomplete, incorrect or defective supply, should be communicated without any delay, in writing, to the Commercial Representative or the Seller and in any case within 30 days following the arrival of the shipment to its destination, whilst the claims for hidden defects or damages shall be communicated immediately upon their being discovered, also in writing. In case the complaint is made after this period, warranty rights shall not be applicable. The recognition of claims by default shall be conditional to written confirmation by the Seller.dor.

 

When due to reasons attributable to the Seller, the Buyer is unable to make use of the object of the supply according to the Contract, on account of defective execution or parts, or insufficient assembly and maintenance instructions, the provisions contained in Chapter 10 shall be applicable, excluding any other claim by the Buyer. In any event any claim for damages, that have not been caused by the object of the supply are excluded. The Seller shall not assume any liability whatsoever for indirect damages, whether patrimonial or moral, relating to or deriving from these General Conditions for Supply. In particular it shall not assume any liability for loss of profit or losses of any type, regardless of the reason for these damages, whether due to any contractual actions, due to default of these General Conditions for Supply, including the warranty obligations deriving from the same or non‐contractual actions, even if the possibility of the said damage has been previously notified

 

Any disputes that may arise between the parties with regard to these General Conditions for Supply or Contract shall be resolved in conformity with the Rules of Conciliation and Arbitration of the International Chamber of Commerce, by one or more arbitrators appointed in keeping with the said Regulation. Without detriment to the provisions in the above paragraph, the Seller reserves the right to defend industrial property rights with respect to its Patents and Registered Trademarks, taking recourse, if it deems necessary, to the Court that it considers competent.   If any of the clauses of these General Conditions is declared as null and void by any applicable legislation or regulation or by a judicial or administrative decision, the said invalidation will not affect the validity and effectiveness of the remaining clauses.

 

ALL-RAIL-SYSTEMS, S.L.