This English version is a translation provided for information only. In case of any discrepancy between this translation and the Portuguese version, the Portuguese version prevails.
A. GENERAL PROVISIONS
Article 1. Definitions
In these conditions, the following terms have the following meanings:
1.1 Buyer: Empresa de Isolamento EnergyEase Lda. NIPC: 517850559, located at R. Fonte da Carreira 350 Unidade B-24, 2645-467 Alcabideche Portugal, or an affiliated company as mentioned in the Order.
1.2 Supplier: Any natural or legal person from whom the Buyer orders Products and/or Services and/or with whom it negotiates concerning the Order of Products and/or Services.
1.3 Order: The order placed by the Buyer with the Supplier for the supply of Products and/or the provision of Services in the format described in Annex 1 to these general conditions of purchase.
1.4 Products: All goods delivered or to be delivered to the Buyer for the performance of an Order, regardless of whether the Order covers only the delivery of those goods or also (in part) the provision of Services.
1.5 Services: Performances ordered by the Buyer from the Supplier, insofar as they do not consist of the delivery of Products.
1.6 Specification: The detailed description of the Products and/or Services to be supplied by the Supplier, as included in the Order.
1.7 Contract: The contract between the Buyer and the Supplier in relation to the Order.
Article 2. Applicability of these Conditions
2.1 These conditions apply (with the express exclusion of the Supplier's conditions) to all Orders placed by the Buyer and to all contracts resulting from or related to such orders, or additional contracts. They also apply to negotiations on such orders or contracts, even if those negotiations do not lead to the conclusion of a contract. The Supplier is presumed to make its offer on the basis of these conditions.
2.2 Deviations from or additions to these conditions, in any form, are only valid if the Buyer agrees to them in writing.
2.3 In the event of differences between the meaning of the Portuguese text of these conditions and translations into other languages, the Portuguese text shall prevail between the parties.
2.4 In the event of a contradiction or ambiguity between the documents forming the Contract, or within a document forming part of it, the Supplier must immediately inform the Buyer. The Buyer will then determine which document prevails. The Supplier is not entitled to extra compensation or postponement of delivery.
Article 3. Applicable Law
3.1 These conditions and all Orders placed by the Buyer and Contracts concluded are subject to Portuguese law. The application of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention) is excluded.
Article 4. Order
4.1 The Buyer is bound only by Orders that have been confirmed by the Supplier by returning, within 14 days of dispatch, a signed copy of the Order provided by the Buyer, unless a different period is mentioned in the Order. For as long as the Supplier has not confirmed the Order as prescribed above, the Buyer is entitled to cancel the Order by means of a written statement to the Supplier, without the Buyer being obliged to pay any compensation (damages) to the Supplier.
4.2 Offers, delivery periods, warranties, specifications and quotations provided by the Supplier, as well as other provisions agreed in writing, may not be changed unilaterally after they have been issued.
4.3 Upon timely confirmation of the Order in accordance with Art. 4.1, the Contract is formed. The content of the Contract is determined solely by the Order and by these conditions.
Article 5. Prices
5.1 The prices mentioned in the Order are fixed. The parties may jointly agree on a change to those prices.
5.2 The prices of the Products or Services include standard packaging and DDP delivery (Incoterms 2010) at the place of destination designated by the Buyer, in accordance with Article 13. In addition, the prices of all Products and Services include all preparatory work and other work required to comply with the requirements, descriptions and the Specification laid down by the Buyer.
B. PERFORMANCE OF THE CONTRACT
Article 6. Subcontracting
6.1 The Supplier is obliged to perform the Order itself, unless the Buyer has explicitly consented in writing to subcontracting, engagement of third parties or purchasing from third parties, or has given a written instruction to that effect. The Supplier remains fully liable for the contribution of third parties to the performance of the Order as if it were its own performance.
6.2 The Supplier indemnifies the Buyer against any claims by third parties involved in the performance of the Order.
Article 7. Timely Performance
7.1 The Supplier must perform the Order within the performance period mentioned in the Order. The performance period begins on the date of the Order, unless the parties have agreed otherwise in writing.
7.2 If the Supplier fails to comply, in whole or in part, with the provisions of paragraph 1, it will be immediately in default without any notice being required. In that case, the Buyer is entitled to terminate the Contract, in whole or in part, without judicial intervention and without prejudice to its other rights, at the Supplier's cost by a third party.
Article 8. Postponement of Delivery
8.1 The Buyer is entitled to postpone the delivery of the Products by means of a written statement to the Supplier, within reason. The Buyer will state in the relevant statement for how long the delivery period will be extended.
8.2 If the Buyer exercises the right referred to in paragraph 1, the Supplier must store the Products in a suitable place, in an identifiable manner, and take appropriate measures to prevent loss of quality. The Buyer will pay the Supplier the reasonable direct costs of storage.
Article 9. Performance in Accordance with the Specification
9.1 The Supplier is obliged to perform the Order strictly in accordance with the Specification and, in addition, in compliance with the usual requirements of soundness and professional competence.
9.2 The Buyer is entitled to change the Specification. If that change results in a significant deviation in the costs or in the time required for the performance of the Order, the price or the date of delivery or completion of the Order will be adjusted reasonably.
9.3 The Supplier must state in writing within 10 working days of the day of notification of the change whether the change results in a (significant) deviation in the costs or in the time required for performance; in the absence of such notification, the Supplier loses the right to adjust the Order. While awaiting an agreement between the parties on the possible adjustment of the Order, the Supplier will perform the Order at all times in accordance with the change proposed by the Buyer.
Article 10. Quality Guarantee
10.1 The Supplier guarantees the soundness of the Products and/or Services delivered. This guarantee includes, as a minimum, that:
a. The Products and/or Services are fit for the purpose for which they were ordered;
b. The Products are new, of good quality and free from defects in terms of design, manufacture, construction and dimensioning, as well as free from defects in the components and/or materials used;
c. The Products and/or Services are manufactured or performed in accordance with the latest state of the art;
d. The Products and/or Services fully comply with the Specification and the other provisions of the Contract;
e. The Products and/or Services fully comply with all applicable regulations, laws, etc.
10.2 The Products and/or Services will be deemed defective if defects occur within 1 year of delivery, unless this is due to gross negligence / intent on the part of the Buyer, intentional misuse by the Buyer, or significantly deficient maintenance by the Buyer.
Article 11. Inspection before Delivery
11.1 The Buyer is entitled to inspect the Products before delivery, during manufacture, processing or storage, and to test them or have them tested. The Supplier will at all times grant access to the Buyer or to the expert designated by the Buyer and will provide all necessary facilities and assistance free of charge.
11.2 The Supplier will notify the Buyer in good time of the tests to be carried out by the Supplier. The Buyer is entitled to attend those tests or to have them attended by an expert designated by it.
11.3 Regardless of whether or not the Buyer has exercised its rights under the provisions of the two preceding paragraphs, and regardless of the outcome of the inspections and tests referred to, the Supplier remains fully responsible for the proper performance of the Order.
Article 12. Delivery
12.1 The Supplier must pack and/or protect the Products in such a way that they can reach the place of destination in good condition and be unloaded safely when transported under normal conditions. Any special packaging and/or protection requirements laid down by the Buyer, provided they are communicated in good time by the Buyer, will be carefully observed by the Supplier. All packaging must comply with the applicable legal regulations.
12.2 The Supplier will strictly follow the Buyer's instructions regarding preservation, certification, marking, dispatch, transport documents to be provided, etc.
12.3 Consignments that do not comply with the provisions of paragraph 1 and/or paragraph 2 may be refused by the Buyer.
12.4 The Buyer reserves the right to return packaging to the Supplier, at the Supplier's expense and risk, with a credit for the amount charged for it by the Supplier. Loan packaging provided by the Buyer will be looked after and insured by the Supplier with the care of a "bom pai de família" (a prudent and diligent person).
Article 13. Inspection after Delivery
13.1 The Buyer will inspect the Products or Services within a reasonable period after delivery or performance, unless otherwise agreed in the Order. If that inspection shows that the Products or Services are not in accordance with the Order, the Buyer will return the Products or reject the Services, or accept the Products and/or Services at a reduced price.
13.2 Inspection does not prevent the Buyer from subsequently claiming the Supplier's failure to comply with its guarantee obligation referred to in Article 10 or any other obligation towards the Buyer.
13.3 Articles 6:89 and 7:23 of the Dutch Civil Code do not apply.
Article 14. Transfer of Ownership and Risk
14.1 The Buyer acquires ownership of the Products once they have been delivered or paid for, whichever occurs first. The Supplier bears the risk of damage to or loss of the Products until the moment of delivery and acceptance of the Products by the Buyer.
14.2 By way of derogation from paragraph 1, in the case referred to in Article 8, the Buyer acquires ownership of the Products at the moment they are stored for it.
14.3 In the event of advance payment for Products not yet completed, the Buyer acquires (by virtue of the payment it has made) ownership of all materials, raw materials and semi-finished goods from the moment of the advance payment. The Supplier must keep those items completely free of encumbrances and rights for the benefit of the Buyer.
14.4 Even in the event of a transfer of ownership under the terms of paragraph 2 or 3, the Supplier bears the risk of damage to or loss of the Products until the moment of delivery and acceptance of the Products by the Buyer.
14.5 The Supplier guarantees that the Products to be delivered are free from attachments, retention of title, third-party rights, etc., and that the Buyer can dispose of the Products and/or Services without hindrance. The Supplier indemnifies the Buyer against all damage resulting from non-compliance with this clause.
Article 15. Payment, Assignment and Set-off
15.1 Payment by the Buyer is not due until the complete Order has been performed. The Supplier is then entitled to invoice. The payment term is 30 days after receipt of the corresponding invoice by the Buyer.
15.2 The Supplier is never entitled to transfer its claims against the Buyer to any third party, unless the Buyer has given prior written consent.
15.3 The Buyer is entitled to set off any debt it owes to the Supplier against any claim it has on the Supplier or on the latter's group companies. If the claim that the Buyer sets off is not yet due, a discount equal to the statutory interest will be applied over the period from the set-off declaration until the due date.
15.4 Without prejudice to its statutory rights of suspension, the Buyer is entitled to suspend payment to the Supplier for as long as the Supplier or one of its group companies is in default towards the Buyer in the performance of obligations under other contracts between the parties.
15.5 If the Products are stored in accordance with Article 8, payment within the period referred to in paragraph 1 will be due after storage of the Products has begun.
15.6 The Buyer is always entitled to transfer the Contract to a third party without the Supplier's consent.
Article 16. Goods Made Available by the Buyer
16.1 The Buyer remains the owner of all goods it makes available to the Supplier in relation to the Order. The Supplier will at all times refrain from using the goods made available in such a way that third parties could acquire ownership of those goods through the formation of a new item, accession, commingling, or otherwise. If the goods in question become part of a Product, the Buyer acquires, by way of derogation from Article 14, ownership of that Product by operation of law, without the need for any further act of delivery. The provisions of Article 14 in terms of risk remain fully effective.
16.2 The Supplier will insure all goods it receives from the Buyer in relation to the Order, at its own expense, on customary terms in favour of the Buyer, against all damage resulting from total or partial loss or damage, regardless of the cause.
16.3 The Supplier will return all models, stamps, drawings or other tools provided by the Buyer after performance of the Order, in good condition, unless the Buyer gives it written instructions to the contrary. The Supplier will use these tools entirely at its own risk; the Buyer is not liable for any adverse consequences of the use of these tools by the Supplier or by third parties. The Supplier will not use them, nor permit or authorise their use by third parties, for any purpose other than the performance of the Order.
Article 17. Liability and Indemnification
17.1 The Supplier performs the Order entirely at its own expense and risk. Any damage that may be suffered by the Buyer or by third parties as a result of or in connection with the performance of the Order will be compensated by the Supplier, regardless of whether the damage is caused by the Supplier itself, its staff or other persons it engages in the performance of the Order.
17.2 The Supplier is fully liable for all damage that the Buyer or third parties may suffer as a result of defects in the Products delivered and/or Services provided, even if the Supplier is not at fault for the occurrence or existence of those defects.
17.3 The provisions of paragraphs 1 and 2 of this article constitute a stipulation also for the benefit of injured third parties as referred to. The Supplier will indemnify the Buyer in respect of all claims that such third parties may bring against the Buyer.
17.4 The Supplier is obliged to adequately insure its liability arising from a Contract or from the law with an insurance company of good repute.
Article 18. Default and Insolvency of the Supplier
18.1 If the Supplier fails to fulfil any of its obligations under the Contract or other resulting contracts, fails to fulfil them on time, or fails to fulfil them properly, and in particular if:
- The Supplier is declared bankrupt, placed under guardianship or administration;
- The Supplier applies for or obtains a moratorium on payments;
- The Supplier proposes or enters into an out-of-court debt arrangement;
- The Supplier ceases its activities (or a relevant part of them) or transfers them to a third party, or otherwise liquidates;
- An attachment is imposed in such a way that there are good reasons to fear for the continuity of (the relevant part or a significant part of) the Supplier's business activities;
- then the Buyer is entitled to terminate the Contract, in part or in its entirety, without the need for further notice and/or judicial intervention, without prejudice to the Buyer's right to compensation for all damage, costs (including related judicial and extrajudicial costs) and interest.
18.2 All claims that the Buyer may have or acquire against the Supplier in such cases will be immediately due and payable in full.
18.3 Notwithstanding a termination of the Contract as referred to in paragraph 18.1, the Buyer retains all its rights and the Supplier retains all its obligations as regulated in these conditions or arising from the law.
18.4 The Buyer is at any time entitled to terminate the Contract by written notice, in part or in full. In that case, the Buyer will compensate the Supplier only for the direct costs incurred before termination, plus the direct costs of terminating the Contract.
C. ADDITIONAL PROVISIONS FOR SERVICES
Article 19. Suspension
19.1 The Buyer is entitled, by means of a written statement to the Supplier, to suspend the performance of the Services within reason and free of charge. The Buyer will state in the relevant statement for how long the performance period will be extended or when the Service may be resumed.
Article 20. Performance and Delivery
20.1 The Supplier will perform the Services in accordance with the Contract and with the expertise expected of an experienced Supplier, and will comply with all internal rules, rules of conduct, safety rules, etc., imposed by the Buyer.
20.2 The Supplier will notify the Buyer in writing when the Services, in the Supplier's opinion, have been completely and correctly performed. The Buyer will inform the Supplier within a reasonable time whether the Services have been performed satisfactorily. The Services are accepted by the Buyer only after the Buyer's written communication that the Services have been delivered satisfactorily.
D. OTHER PROVISIONS
Article 21. Intellectual Property
21.1 The Supplier grants the Buyer a non-exclusive and irrevocable licence under all of its intellectual property rights, if any, and other exclusive rights relating to the Products or Services delivered. Under this licence, the Buyer is entitled to use and apply within its own operations the inventions and know-how incorporated in the Products, insofar as they are protected by such rights, including repairing and/or having repaired the Products, and is also authorised to supply the Products, whether or not as part of other goods, to third parties. The remuneration for this licence is included in the price.
Article 22. Confidentiality
22.1 The Supplier is obliged to maintain full confidentiality regarding all information it may obtain in connection with the Order or its performance, including the nature, the reason for and the result of the Order carried out.
Article 23. Disputes
23.1 All disputes (including those considered as such by only one of the parties) that may arise from the Contract or from additional resulting contracts will be submitted exclusively to the decision of the competent court in Lisbon.
Article 24. General Code of Conduct for Suppliers
24.1 The Supplier declares, on entering into the Contract, that it is aware of and fully agrees with the Buyer's "General Code of Conduct for Suppliers" ("Código de Conduta Geral para Fornecedores") and agrees that any breach of it will result in immediate termination of the Contract as described in Art. 18 of these conditions.
Annex 1
The Order will be dated and numbered and will include at least:
a. a description of the Works to be carried out (the "Services");
b. a description of the Components and/or Materials to be supplied (the "Products"); c. the performance schedule (the "Performance Schedule");
d. the payment date or dates;
e. where applicable, the qualifications required for the staff to be assigned by the Service Provider;
f. coordinator on behalf of EnergyEase Lda.;
g. quality standards;
h. place of performance of the Order.
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