General conditions of sale
PRELIMINARY.- GENERAL CONDITIONS
These general conditions will always be part of any offer or agreement related to supply, assembly and installation services for equipments and systems, with or without the contribution of components and parts, as well as to any of the services that Ecomanagement Technology SL (hereinafter, ECOMT) will carry out for its clients. Any condition or modification of these general conditions proposed by the Client will only take effect if it has been accepted in writing by ECOMT. The signature of an agreement between ECOMT and the Client, or the confirmation of an order by ECOMT, imply the knowledge, conformity and acceptance by the Client of the content of these General Conditions, which, can also be found on the ECOMT website (www.ecomt.net ).
FIRST.- OFFERS AND ORDERS
Any offer made by ECOMT will not be binding, but merely informative and, in any case, it will only be valid for 30 days from the date of issue. Therefore, ECOMT may revoke any offer, as long as the order submitted by the Client has not been expressly confirmed by ECOMT. Therefore, any order made by the Client based on a previous offer from ECOMT must be expressly confirmed in writing by ECOMT. Orders will only be binding after express confirmation by ECOMT. In the event of a conflict between the Customer’s order and the confirmation by ECOMT, the latter’s conditions will always prevail. Any subsequent modification of the order by the Client must be expressly accepted by ECOMT, otherwise it will have no effect.
SECOND.- OBJECT OF THE SERVICES
The Services to be provided by ECOMT will be those expressly determined in the offer presented by it and in the Customer’s order, as long as said services have been expressly accepted by ECOMT through the order confirmation. Any other service, element, equipment or material not explicitly included in said documents, although being directly or indirectly necessary for the execution of the Services, will be at the Client’s expense. The Client will be solely responsible for defining in the order the technical specifications, capacities, as well as any specialty or characteristic that must be observed in the execution of the Services and, therefore, ECOMT will limit itself to performing the ordered services, not being responsible for the adequacy of the provided services.
THIRD.- PRICE AND METHOD OF PAYMENT
The prices of the Services do not include the Value Added Tax (VAT), or other taxes, duties, customs expenses or rates that may be applicable, and that will be duly charged, where appropriate, to the Client.
They also do not include any type of transport or product management costs, unless it is explicitly indicated.
In the event that in the offer presented by ECOMT estimates are made regarding the hours to be used in the execution of the services, the number of people that have to intervene in them, the days of duration of the works or on other issues of a similar nature, these will be indicative at all times, so that ECOMT will have the right to subsequently invoice the units actually consumed, used or made, regardless of the variation with respect to the estimated ones.
Once the order has been accepted by ECOMT, the prices of the Services may be revised upwards in the following cases (i) when so agreed by the parties, (ii) when the variation is attributable, directly or indirectly, to the Client, or (iii) when ECOMT’s providers or suppliers offer the materials, parts, components or services necessary for the provision of the Services at a higher cost than initially anticipated by ECOMT.
The payment of the price for the Services will be made in the manner and terms established in the order confirmation or, where appropriate, in the ECOMT offer, and may not exceed in any case the period of 30 days after the date of receipt of goods or provision of services, in accordance with the provisions of article 4.1 of Law 3/2004.
In case of delay or non-payment, the late payment interest will be established in article 7 of Law 3/2004 and its subsequent amendments.
ECOMT may request the Client to pay in advance, in whole or in part, for the order, as well as to provide any guarantees it deems appropriate in order to ensure compliance with the Client’s obligations. The compensation or postponement of any payment by the Client will only be possible with the prior written agreement of ECOMT. In the event that the Client incurs delays in payments, ECOMT may provisionally or definitively suspend, at its choice, the provision of the Services and/or the execution of the supplies associated with them, without prejudice to the obligation of the Client to comply with due payments and to indemnify, where appropriate, the damages that such delay or termination of the contract due to non-compliance may have caused to ECOMT.
FOURTH.- INTELLECTUAL AND INDUSTRIAL PROPERTY
The intellectual and/or industrial property of the offer and the information attached to it, as well as the technical documentation, engineering information, procedures, plans, drawings, design, “software”, programming associated with equipment, web services, etc. incorporated or related to the provision of the Services, belong exclusively to ECOMT or, where appropriate, to its suppliers. For this reason, their use by the Client for other purposes than the completion of the order is expressly prohibited. Therefore, any total or partial copying or transfer of use in favor of third parties is also prohibited without the prior written consent of ECOMT.
FIFTH.- PERIOD OF EXECUTION OF THE SERVICES
The order will specify the term of execution of the Services, which must be expressly accepted by ECOMT in the order confirmation.
However, ECOMT may subsequently extend the execution period
(i) when modifications to the order have been requested by the Client and have been accepted by ECOMT;
(ii) when the Client has not carried out the preparatory work or has not obtained the necessary permits and authorizations;
(iii) when the Client has not duly complied with the obligations assumed by them, particularly with regard to making payments within the established deadlines;
(iv) when circumstances occur that prevent or delay the execution of the Services, such as strikes, failures in the supplies of third parties, failures in the transport systems, strikes of ECOMT personnel or its subcontractors or suppliers, customers, sabotage, accidental stops in ECOMT workshops or any event beyond ECOMT or, in any case, not attributable to it or
(v) problems in the supply of materials both to the company or to any of its suppliers or to the client.
SIXTH.- SUSPENSIONS IN THE EXECUTION OF SERVICES
In the event that, prior to or during the execution of the Services, ECOMT finds it necessary to temporarily or permanently suspend the start or execution of such services for reasons that are not attributable to them, the Client must pay an economic compensation to ECOMT in order to compensate the latter for the expenses it has incurred such as lost hours, staff travels, allowances, immobilization of equipment and tools, etc. due to the forced suspension of the execution, without prejudice to the penalties agreed for such cases, and the compensation that may correspond to ECOMT for damages when said suspension is directly attributable to the Client.
SEVENTH.- PREPARATORY OR COMPLEMENTARY WORKS
It will be the Client’s responsibility to carry out all the preparatory or complementary works that are necessary for the performance of the Services by ECOMT, such as water, electricity, drainage and other connections to the area in which the Services must be performed, carrying out civil works or adequacy of the location, preparation of permits, tools, necessary documentation or anything that can be related to the work. If ECOMT considers it necessary to install construction booths with toilets, changing rooms, provisional office, warehouse for materials, etc. the expenses and costs corresponding to such services will be borne by the Client.
The Client is obliged to deliver, before the start of the works and if necessary, during the execution of the same, the necessary documentation (drawings, plans, specifications, etc.) and the adequate planning of the works that are their responsibility, to so that ECOMT can carry out a correct and non-interfered execution of the contracted Services.
If in the execution of the Services the intervention of personnel foreign to ECOMT is necessary or convenient, it will be the responsibility of the Client that this personnel is available at the moment in which they have to intervene, as well as their due qualification. The Client will be responsible at all times for any labor obligations, social security, safety and hygiene at work or any other obligation related to said workers or the works carried out by them, exempting ECOMT from any responsibility for such concepts.
The Client will be responsible for obtaining all the permits, licenses and authorizations necessary for the provision of the Services by ECOMT, with the exclusive responsibility of the costs, fees, taxes or duties that must be paid for their execution.
ECOMT may subcontract all or part of the work included in the execution of the Services, without prejudice to its liability to the Client.
NINTH.- LABOR SAFETY AND COORDINATION
The Client will be solely responsible for the adoption of all necessary measures for the protection of safety and health at work in its facilities, being therefore responsible for the information on the risks and preventive measures to be adopted in the workplace in which the contracted services will be carried out, as well as the measures that must be applied when an emergency situation occurs. The Client will also be responsible for the coordination between the various contracts and contractors that, where appropriate, participate in a certain project, as well as the functions of consultation, training and, in general, of any other obligations in terms of safety and hygiene at work derived from the application of Law 31/1995, on Occupational Risk Prevention, both with respect to their own workers and to those of their contractors.
ECOMT is authorized to stop the execution of the Services in accordance with article 21 of Law 31/95 if it considers that the security conditions in the Client’s facilities do not guarantee the performance of the works in adequate security conditions for the personnel of ECOMT and its subcontractors. ECOMT will be granted a reasonable extension of time when any delay occurs and will be compensated by the Client for any loss or damage suffered, such as lost hours, displacement of personnel, allowances, immobilization of equipment and tools or any other damage and loss derived from the Customer’s breach of the obligations and responsibilities provided for in this clause and those contemplated in the aforementioned Law 31/1995 on Occupational Risk Prevention.
TENTH.- SUPERVISION OF SERVICES AND INSPECTION AFTER COMPLETION
Except in the cases in which a special act of delivery has been foreseen with the realization of reception tests, once 15 days have elapsed from the completion of the execution of the Services without ECOMT having received a written communication from the Client about eventual defects and/or faults, it is considered that the executed Services have been duly carried out and accepted by the client to their full satisfaction. From this moment on, the guarantee period begins.
If the Client has agreed with ECOMT to carry out reception tests of the executed Services, the equipment, auxiliary personnel and consumables necessary to carry out these tests will be at the Client’s expense. If, for reasons beyond ECOMT’s control, these tests are not carried out on the previously agreed dates, the Services performed will be considered to have been accepted by the Client.
Unless otherwise expressly agreed by the parties, ECOMT guarantees the performed Services regarding any defects and errors in execution and start-up, in case these are attributable to it, for a period of 12 (TWELVE) months counted from the date of receipt of the Services, be it explicit or implicit, in accordance with what is indicated in the previous clause.
If needed for said repairs, the Client will be in charge of the disassembly, packaging, loading, transportation, customs, taxes, or any other expense originated, where appropriate, by sending the defective material to the workshops that ECOMT deems appropriate, as well as the expenses related to the return of such material to the Client.
Interventions and/or repairs during the guarantee period will be carried out exclusively by ECOMT or whoever it deems appropriate: for this purpose, those carried out by the Client without the express authorization of ECOMT will cancel any type of guarantee of the services provided.
Repairs to specific elements or systems do not change the end date of the guarantee period for the whole of the performed Service, which is indicated in the first paragraph of this section.
Any damage beyond the control of ECOMT is excluded from the guarantee, such as damage or defects due to wear and tear from the normal use of the equipment, damage and effects caused by inadequate conservation or maintenance, attempts to rectify or modify the equipment or systems by a person foreign to ECOMT, erroneous or negligent handling, repairs and/or manipulations carried out by personnel foreign to ECOMT, abusive use, use of inadequate liquids and gases, as well as inadequate flow or pressure, variations in the quality of the electrical supply or any action outside ECOMT.
In any case, ECOMT will not be responsible for defects that may be directly attributable to the equipment and materials supplied. That is to say, ECOMT only guarantees the defects that come from a defective provision of the Services on its part, but not from manufacturing or design defects in the equipment and materials supplied by it, without prejudice to the possible guarantees that the manufacturer of such elements could provide, from which ECOMT is expressly exempted
TWELFTH.- LIMITATION OF LIABILITY
The liability of ECOMT and its agents, employees, subcontractors and suppliers for claims arising from the fulfillment or breach of their obligations (including active and passive negligence), will not exceed the total contractual basic price and will not include in any case the damages derived from loss of profit, loss of revenue, energy, production or use, capital costs, downtime costs, delays, Customer complaints, energy replacement costs, loss of anticipated savings, loss of production or wasted production, the increase in operating costs and any special, indirect or consequential damages and losses of any kind (whether contractual, extra-contractual -including active and passive negligence-, guarantee, strict liability or any other nature).
THIRTEENTH.- RESERVATION OF TITLE
ECOMT will retain ownership of the installed equipment and systems until the Customer has paid in full. Therefore ECOMT reserves the right to recover all unpaid components and materials in the Customer’s possession or control, as well as to access to any land or building where the equipment, systems, components and materials are, in order to recover them, which the Client expressly and irrevocably authorizes from this act.
In the event of non-payment, ECOMT may proceed to the suspension of each and every one of the pending benefits, reserving the adoption of those measures it deems appropriate, without prejudice to terminating the contract with the right to claim the corresponding damages and losses caused by the client’s non-compliance. ECOMT may postpone or deny the execution of all or part of the Services and/or terminate any contract signed with the Client with immediate effect and without the need for any court order, as well as claim the immediate payment of any debt, even those not yet expired, in case of any breach of the Client’s obligations.
FIFTEENTH.- SUBMISSION TO JURISDICTION AND COMPETENCE
The parties expressly waive any other jurisdiction that may correspond to them and submit themselves to the jurisdiction and competence of the Courts and Tribunals of the city of A Coruña.
Once this contract is finished, and especially in case of urgent events, THE CLIENT may require our services, and for this they may need to access OTEA. In accordance with the foregoing and considering that, in the face of these incidents, we may find ourselves in a situation in which this access cannot be authorized either due to urgency, or due to the lack of availability of the person who has the power to grant such authorization, or for any other reason, it authorizes ECOMT to access OTEA for the solution of eventualities and emergencies, once the service contract has ended.