GENERAL CONDITIONS OF CONTRACT
NAVALCO SERVICIOS DE REPARACION Y MANTEMIENTO DE MOTORES MARINOS Y COGENERACION S.L.
l. – Scope of application- These general contracting conditions will be applicable to any contract that is made between NAVALCO SERVICIOS DE REPARACION Y MANTEMIENTO DE MOTORES MARINOS Y COGENERACION S.L. hereinafter “the Company” within its activity, that is, supply and repair of marine engines and cogeneration and any other with which hereinafter will be called “the Client” or the “supplier” or “contract” or “subcontract”.
They may only be modified by written agreement between the parties, so the clauses or conditions that appear, printed or handwritten, in the orders, budgets, letters or other documents issued by the Client will be invalid in this sense.
The modification by NAVALCO SERVICIOS DE REPARACION Y MANTEMIENTO DE MOTORES MARINOS Y COGENERACION S.L. of these General Conditions of Contract will not affect contracts already perfected. These general conditions of contract are public and are communicated to customers by post, email, telephone, FAX or other means that the Selling Company chooses, and it will not be necessary to communicate them to customers, suppliers and subcontractors each time a contract is made, it will be enough to communicate them once since they are the same for all operations unless otherwise agreed in writing.
In any case, and so that the Client can not allege the lack of communication of the same, they are available at the offices of the company located at Avd. de la Prensa, nº 56, 15141, Arteixo, A Coruña, at the URL: http://www. navalco.es and in the Register of Movable Property of A Coruña in the section of “Register of General Conditions of Contracting” with the name of “General Conditions of Contract NAVALCO SERVICES OF REPAIR AND MAINTENANCE OF MARINE ENGINES AND COGENERATION S.L. “.
2.- CONDITIONS OF SALE/RENTAL OR ASSIGNMENT
2.1- Budget- The CLIENT has the right to receive a written and detailed budget of the service contracted. The validity of the same will be 30 days from the date of its preparation. This budget may be subject to modifications with respect to its total cost derived from variations that may suffer the prices of the materials subject to the budget.
The client is responsible for the veracity of the measures and data provided to the company for all purposes.
The company will not receive any remuneration for the realization of the budget provided that the service is provided by NAVALCO SERVICIOS DE REPARACION Y MANTEMIENTO DE MOTORES MARINOS Y COGENERACION S.L. However, if the client, once the budget has been made, decides to desist from the budgeted services, he must pay the hours of work necessary for the preparation of said budget, and pay the rest of the expenses incurred for the preparation of the same.
If the CLIENT places the order directly and does not request the preparation of the budget, it is understood that he renounces the realization of the same.
In this way, the Company may carry out the requested order when the CLIENT has given his agreement by accepting the budget through email or with the signing of the budget or has renounced the preparation of the same when directly placing the order.
2.2.- Time and place of delivery- The delivery period will be the one that had been expressly agreed between the parties.
The documentation that proves the delivery of the goods is the corresponding delivery note, contract or work certifications or any other document issued by the company.
The cost of the transfer of the goods will be borne by whoever so stipulates by contract.
The delivery time will be extended:
– When the requirements expressed by the client are not met.
– When the client provides the company with inaccurate data, especially with regard to measurements.
– When there are reasons beyond the control and control of the Company that prevent compliance with the delivery date, especially when there are extreme weather situations, delays in deliveries by suppliers or delays caused by third parties outside the company.
– When the CLIENT changes the original order or delays in its contractual obligations, especially those relating to the delivery of the necessary documents to carry out the operation or the agreed payments.
Likewise, the Client will have the obligation to allow the provision of services and in particular the following:
– Accessibility for the means of transport necessary to deliver the goods, being responsible the customer for the damage that any machinery of the company may cause as a result of not having properly enabled its facilities or land for transit.
– Freedom of movement through the facilities for the workers of the company, the contractors, the subcontractors and the self-employed, who are responsible for carrying out the agreed works, to the extent necessary.
– Supply of electrical energy,water, compressed airand necessary vacuum equipment for the development of their professional tasks.
– Means for loading and unloading goods.
A place to carry out the agreed work and areas for rest and change of clothes of the operators.
– Containers of remains.
– Licenses and permits.
– Health and Safety Plan. Safety study.
In case of non-compliance with the obligations by the Client, the Company may suspend in whole in part its execution until they comply with the agreed obligations.
2.3.-Price – All prices must be considered as net in the agreed currency, without any deduction of any kind, unless otherwise agreed and will be agreed by the parties.
The prices do not include taxes, fees or other charges, both general and special, unless otherwise agreed in writing, taking into account the Incoterms that may be applicable and / or the conditions of delivery of the goods.
2.4.-Payment method- Unless otherwise agreed in writing, payment must be made in cash without any discount, and without deduction, compensationor withholding permitted.
In the event that payment dates have been agreed, these must be met by the CLIENT even if the delivery is delayed due to issues beyond the control of the Company. If the Company deems it appropriate, it may request the guarantees it deems necessary to ensure the proper fulfillment of the contractual obligations of the CLIENT, and may in the meantime suspend deliveries.
2.5.-Accrual of default interest and compensation for collection costs- With effect from the agreed payment date, the CLIENT must pay default interest according to Law 15/2010, which establishes measures to combat late payment in commercial operations, which are set with the acceptance of these general contracting conditions in the maximum legal allowed. If the CLIENT is in default of a payment or the provision of an agreed guarantee, all outstanding collections at that time, due or not, will be considered liquid and enforceable. In addition to the accrual of these interests when the CLIENT is in arrears, the industrialist will have the right to claim from the CLIENT the collection costs referred to in Law 15/2010
2.6.-Acceptance of the provision of the service or delivery of goods.-
Sale.- The document of receipt of merchandise or provision of service that is to be delivered to the address of the CLIENT or another place designated by him, must be signed by the same or another authorized person, in the case of absence of these, the CLIENT, when accepting these conditions, will consider valid the signature of another person who, being in these dependencies, receive the merchandise and sign the acceptance of the same having to identify yourself at the delivery with your name and National Identity Document.
At the time of delivery the customer will check the products delivered and the provision of the service, in terms of quality and quantity within a maximum period of 2 days from the reception of the same.
The Company grants the client a period of 7 days from the provision of the materials or service to communicate in a reliable manner the vices or hidden defects of the products delivered or services provided.
The Company reserves the right to deliver goods or use products in the provision of services other than those agreed, provided that they are similar characteristics to those agreed and of equal or superior quality.
Rental or assignment of use.- It is understood accepted the material subject to rental contract or assignment of use at the signing of the lease or assignment contract on the date of making it available.
The lessee or assignee will receive the object of the rental or assignment contract in perfect conditions of conservation and operation, indicating the instructions for its handling and facilitating the technical, legal and safety preventions necessary for its normal use and is obliged to return it in the same state that it is received, at which time the natural wear and tear that originates will be taken into account, Not so when there has been negligence on the part of the lessee or assignee, causing breakdowns.
Because the material is handled by the personnel of the lessee or assignee, he is responsible for any breakdown due to improper use, as well as for damages caused and third parties who are affected by any accident caused by the misuse of the material by the negligence of its handler.
The material is the property of the lessor or assignor and may not be subleased or lent to third parties without the express permission of the lessor or assignor. Likewise, the identifying signs or brand of the lessor or assignor may not be replaced or hidden. Failure to comply with this obligation by the lessee or assignee will exempt the lessor or assignor from any liability in case of breakdown.
The material for rent not returned, whether derived from Theft-Theft or any cause that makes it unusable, will be considered as sale of new material and will be invoiced at the market price. It is the obligation of the lessee or assignee to file a complaint with the data.
Both the transfer of the material, and its return at the end of the rental period or transfer of use, will be borne by the lessee or assignee, as well as the expenses that may originate the unloading or loading of the described equipment, assembly or disassembly of the same.
As a consequence, the transport will be carried out under the sole responsibility of the lessee or assignee.
The lessee or transferee of any machinery or material must have subscribed during the term of the rental contract or assignment of use a CR insurance, which will provide proof to the lessor or assignor.
The siting and installation will be carried out by the lessee or assignee under his responsibility and in accordance with the legal / administrative regulations in force.
In addition, for the use of certain machinery and materials you must have the specific qualification or training.
2.7.-Guarantee- The Company will respond according to the Law in force at all times. In those cases in which the responsibility of NAVALCO SERVICIOS DE REPARACION Y MANTEMIENTO DE MOTORES MARINOS Y COGENERACION S.L. and this derives or is linked to products purchased to develop its activity, the responsibility and the guarantee will be transferred to the Supplier. In the case of purchased products, the guarantee will begin to take effect from the moment of commissioning.
All deficiencies beyond its control are excluded from the Company’s warranty and liability, especially if it is as a result of normal wear and tear, improper handling, influence of external action or extreme weather.
If the CUSTOMER claims that a guarantee, in accordance with the technical specifications of the goods, is not reached, the guarantee will only be valid if the Company has the opportunity to verify that the guaranteed parameters are not met.
The transport necessary in order to correct the defects will be at the expense and risk of the Customer. Likewise, unless otherwise agreed, the Client will bear any additional expenses incurred by the Company for repair, disassembly, assembly, and transport if the work or service is located in a place other than the established destination.
The guarantee by the Company is subject to the timely fulfillment of the payment conditions agreed with the CLIENT.
NAVALCO SERVICIOS DE REPARACION Y MANTEMIENTO DE MOTORES MARINOS Y COGENERACION S.L. will not be responsible for the material damage caused during transport if these services are provided by a third party.
After the sale, the company is not responsible for manifest defects or that were in sight at the date of formalization of the contract with the CLIENT, in any of its products.
With regard to claims relating to the use, sale or distribution of the products sold or delivered, individually or in combination with other products, or any other complaint relating to the contract, the rights of the Customer and the liability of the Company shall be adapted to the particular circumstances of the case.
The Customer will never be entitled to return products accepted or whose deadline for reporting defects has elapsed.
The Company’s liability shall never exceed the value of the affected goods or services rendered at the time of sale.
2.8.-Limitation of liability- Unless otherwise agreed, the responsibility of NAVALCO SERVICIOS DE REPARACION Y MANTEMIENTO DE MOTORES MARINOS Y COGENERACION S.L. It will never exceed the value of the contracted budget.
The Company is released from all liability above that maximum, even if it has been caused by its own negligence or breach of duty. NAVALCO SERVICIOS DE REPARACION Y MANTEMIENTO DE MOTORES MARINOS Y COGENERACION S.L. will face all damages caused to persons and property in the execution of its work provided that in it and with respect to such damages are given IMPUTABILITY, CULPABILITY AND RESPONSIBILITY.
Any test or movement of the vessel/element will be carried out at the responsibility and risk of the owner.
2.9.-Insurance- The benefit and risk of the object of the contract will pass to the CLIENT once made available to the same in the place agreed in the contract.
2.10-Default of the CLIENT- In case of non-compliance, total or partial, or lack of punctual or adequate fulfillment of any of the obligations of the CLIENT, as well as, in case of declaration of bankruptcy, liquidation or dissolution of his company NAVALCO SERVICIOS DE REPARACION Y MANTEMIENTO DE MOTORES MARINOS Y COGENERACION S.L. You shall have the right to notify the total or partial termination of the contract or the suspension of its performance in whole or in part.
This will be done by notification without further warning of non-compliance or judicial intervention, and without the Company being liable for damages, without prejudice to any other rights of the Company.
As soon as any of the aforementioned circumstances occur, all payment claims, due or not, refinancing fees or any other obligation that the Company has towards the CLIENT will become due and payable immediately.
The exchange documents or, failing that, any other formal document of payments stipulated for the payment of the contractual obligations contracted between both companies must be sent to the Company at the time of issuance of the invoice. Delay in delivery is considered as breach of contract.
The Company may pass on to the Client any extra costs, chargebacks and penalties imposed as a result of any breach on its part.
2.11-Reservation of title- The COMPANY will continue to be the owner of any material or product supplied until the complete receipt of the agreed payments, being able to withdraw them before the first breach of the client, without the need for consent of the same.
2.12.-Compensation- The Company is entitled to offset any sum owed to it by the CLIENT (understood as all companies that are part of the same group as the Buyer), against any sum payable to the CLIENT.
3.1.- The maintenance services offered by the Company will be both preventive and corrective, performing the necessary tasks to reduce failures and deficiencies as well as the necessary actions to restore the goods subject to maintenance to normal operation.
3.2.-The extension of the maintenance tasks entrusted to it outside the initial agreed budget that are carried out superveningly or by the will of the owner of the work will because forissuance of a new budget.
3.3-None of the maintenance services involves the processing of applications, permits or other kind of administrative or civil authorization of any kind necessary for the development of maintenance tasks.
3.4.-Excluded from the guarantee by the Company, deficiencies in maintenance tasks that are due to causes beyond the control of the Company, especially those derived from misuse, uninterrupted maintenance or non-observance of the indications of use and maintenance indicated by the Company, by the Client.
3.5.- The liability of the Company will only extend to damages that occur in the goods subject to maintenance by actions of its operators. Likewise, it will not be responsible for any replacement, modification or work carried out by third parties without your express consent.
3.6.-The Company reserves the right to suspend the contracted maintenance service when there is any non-payment of the amounts agreed between the parties. In the event that after the suspension of the service there is no regularization of the pending payments, the Company may terminate the service unilaterally, without prior communication to the Client.
4.- PURCHASE CONDITIONS
4.1.- The Supplier undertakes to deliver the goods products object of the purchase in accordance with the provisions of the Order and the laws and regulations that may be applicable.
4.2.- The Supplier must deliver all the documentation required by the customer in the Order, in time, form and quantity, as well as any other information or document, of any kind, that is necessary in accordance with the current regulations applicable to the purchase.
4.3.- The Supplier must comply with all the provisions in force at all times, especially those of a Labor, Social Security or Tax nature, as well as those related to the Environment, Safety and Health, Prevention of Occupational Risks and will be obliged to prove compliance in the established form and deadlines by The company.
Likewise, the Supplier must comply with the regulations and internal practice of the company that is applicable to it by reason of the Order.
4.4.-The Supplier guarantees:
That all the goods or products object of the purchase are of its full property, of first use, made with materials or products of the required quality and that comply with the requirements of safety and environment, meet the specified quality and, where appropriate, are suitable for use.
That the goods or products object of the purchase are free of any charges or encumbrances or other real rights, embargoes, obstacles or affections on them and that no restriction on the free transmission of the same falls on the Supplier or on the goods or products.
That the goods or products comply with the specifications agreed by the parties, as well as compliance with all the conditions established in the Order and that they are free of any defects, visible or hidden, whether by materials, workmanship, design or manufacture.
That it has the intellectual or industrial property rights in relation to the goods or products object of the purchase or supply or, where appropriate, that it has the appropriate licenses for its manufacture or sale, being on its own the expenses and costs derived from them.
They will be borne by the Supplier within the warranty period and the Supplier will be obliged to carry out all repair, amendment, reconstruction, replacement, rectification and correction of deficiencies in the goods or products subject to the purchase.
The Company may pass on to the supplier any extra costs, chargebacks and penalties imposed on it as a result of any breach on its part. It must comply with specific environmental measures and guarantee the quality of the materials with which it works.
5.- Obligations of contractors / subcontractors
They must apply the principles of preventive action contemplated in Law 31/1995, on the Prevention of Occupational Risks.
Inform its own staff of the measures to be adopted with regard to their safety and health, in accordance with the provisions of Royal Decree 1215/1997.
It will inform the prevention service of the hiring of workers especially sensitive to certain risks and minors. Have the necessary training for the handling of machinery and / or specific materials.
Have contracted at your own risk a civil liability insurance, and must provide the company with proof that the coverage includes the period of provision of the service.
Adapt to the deadlines to which it has committed to provide the service, being directly responsible for the delay in them, the company being exonerated in this sense of any responsibility in this regard.
If during the monitoring carried out by the company the breach of the obligations of the contractor or subcontractor or the agreed quality levels is observed, the contractor or subcontractor will be obliged to adopt the necessary corrective measures and may otherwise give rise to the resolution of the order or contract by the company and / or the contracting by third parties for the realization of the services and must pay the Hire or subcontract.
The company may pass on to the contract or subcontractor the extra costs, chargebacks and penalties imposed as a result of any breach on its part. It must comply with specific environmental measures and guarantee the quality of the materials with which it works.
6.-Force majeure-“Force Majeure” means, for the purposes of this contract, the existence of any contingency, circumstance or cause that is beyond the control of the party invoking it, including, but not limited to, the following circumstances: imposition or submission to a law, regulation, decree, order or request of any authority (national, state, regional, provincial or municipal), confiscation, riot, war, riots, fires, floods, earthquakes, storms, explosions, strikes, closures, shutdown of machinery or factory, inability to obtain raw materials, equipment, diesel or transport. If by Force Majeure either Party cannot fulfill any obligation of this Contract other than the payment of the price, said party is exempt from its fulfillment, provided that it notifies the other indicating the beginning and nature of the situation of Force Majeure. The Party invoking Force Majeure shall send immediate notification after the end of the cause giving rise to it.
The Company will not be liable to the CLIENT for any loss or damage arising from the breach or lack of timely or total fulfillment of its obligations due to Force Majeure. This clause is applicable to the Company and its plant, and to the CLIENT and its plant. However, the previous sections of this article, if the CLIENT is affected by Force Majeure, he will not be relieved of any of his obligations to accept and pay for shipments made prior to receipt by the Company of the written notification of the CLIENT of the situation of Force Majeure; nor may the CLIENT invoke the cause of Force Majeure to delay the payment of the amounts owed. If there is a cause of Force Majeure, the Company will have the right to distribute, in the manner it deems reasonable, the quantities of useful products among its CLIENTS and its own requirements.
7.-Notifications- All notifications, modifications and communications by the Company to the CLIENT will be considered effective for all purposes when they are made by sending postal mail to the address indicated by the CLIENT, sending by email, sms, mms, fax, whatsapp, communication by telephone call to the address or number indicated by the CLIENT or, failing that, to the mobile number owned by the CLIENT or his representatives.
For these purposes, the CLIENT declares that all the data provided by him are true and correct, and undertakes to communicate to the Company all changes related to his address, collection data and all kinds of information necessary for the management and maintenance of the contractual relationship between the Company and the CLIENT.
8.-Severability- These conditions will be considered independent and, if any of them, in whole or in part, is left without effect by the parties by express written agreement or is invalid for any reason, the rest will retain its validity with all its force and effect.
9.- Applicable law- These General Conditions will be governed and interpreted in accordance with Spanish legislation in what is notexpressly provided for in them.
Likewise, regarding the law applicable to the operations carried out by NAVALCO SERVICIOS DE REPARACION Y MANTEMIENTO DE MOTORES MARINOS Y COGENERACION S.L. The parties agree through the acceptance of these general conditions of contract, the express submission to the Spanish legal system.
10- Jurisdiction- SPECIAL ARBITRATION CLAUSE
The parties undertake to resolve amicably any disagreement that may arise in the development of this contract.
If an amicable solution is not possible, and litigation is appropriate, the parties, waiving any other jurisdiction, undertake to submit all conflicts, litigation and disagreements arising from the contract, whether in its fulfillment, interpretation or execution, to the Court of the Association for Commercial Arbitration “TAM” in A Coruña , within the framework of its Rules, which is entrusted with the administration of the arbitration and the appointment of the arbitrator or arbitral tribunal, being obliged from now on to comply with the arbitral decision. As for the law applicable to the dispute, the parties expressly submit to the Spanish legal system by means of these general conditions of contract.