TERMS AND CONDITIONS OF SALES TMCOMAS

1. General provisions.

1.1. The services, repairs, assembly work, works, installations and construction projects to be carried out by Talleres Mecánicos Comas SLU, hereinafter, the “Services”, trading as TMCOMAS (hereinafter, the “Seller”), shall be governed by these general terms and conditions of sales (hereinafter, the “General Terms and Conditions”), except in respect of any matters expressly agreed otherwise in the relevant quotation or in the acceptance of the order and which constitute the specific terms and conditions thereof. Consequently, any other terms and conditions not expressly accepted by the Seller shall be void for all purposes.

1.2. These general terms and conditions shall be deemed to have been duly communicated to the Buyer insofar as they are available on the Seller’s website for reproduction and storage and are understood to form an integral part of the offer made by the Seller. Alternatively, they shall be deemed to have been communicated if the Buyer has previously received them during their commercial relationship with the Seller; in all such cases, they shall be deemed to have been accepted by the Buyer, for all intents and purposes, upon placing their order.

2. Intellectual and industrial property.

The intellectual and/or industrial property rights to the content of the offer made by the Seller, in its entirety, and the information attached thereto, as well as to the Technical documentation, engineering information, procedures, plans, drawings, software, amongst other items; incorporated in or relating to the provision of the Services, belongs to the Seller or its suppliers; therefore, its use or exploitation by the Buyer is expressly prohibited, in particular the rights of reproduction, distribution, public communication and adaptation, for purposes other than the fulfilment of the order, as well as its total or partial copying or transfer of use to third parties, without the prior written consent of the Seller.

 

3. Order placement and scope of the Services.

3.1. To formalise the sale, where the Buyer expressly requests a quotation, the Seller shall send in writing a formal quotation for the Services requested by the Buyer, setting out the specific terms and conditions applicable in each case, including the performance deadlines and the validity period of the quotation (hereinafter the “Quotation”). The Quotation shall be deemed valid for the period specified by the Seller therein.

Based on the information provided in the submitted Quotation, the Buyer may place an order for the Services it deems necessary (hereinafter the “Order”).

The scope of the Services must be clearly specified in the Buyer Order. The Order shall be deemed effective upon its acceptance by the Seller, either expressly at the Buyer’s request or upon commencement of the provision of the services, without prejudice to the application in all cases of these General Terms and Conditions.

 

3.2. The scope of the service covers only the Services specified in the Order. Any other Service, work or activity not explicitly included int the Buyer’s order accepted by the Seller, and which is necessary, directly or indirectly, for the performance of the Services, shall be at the Buyer’ expense and responsibility. Section 6: «Preparatory work. Uncontracted works, services and supplies. Permits and authorisations», contains provisions in this regard.

 

3.3. Any amendments and/or variations to the scope, deadlines or other terms of an order proposed by either party may be communicated in writing or by any other legally valid means, subject in all cases to acceptance by the other party. Amendments and/or variations shall also include those resulting from changes in applicable legislation, regulation and rules occurring after the date of submission of the relevant Offer; if such modifications and/or variations were to impose additional or more onerous obligations on the Seller, the Seller shall be entitled to a fair adjustment of the contractual terms that fully reflects the consequences of the new or amended law or regulation.

 

4. Prices.

4.1. The prices for the Services, whether for labour or for the use of auxiliary equipment, transport materials, consumables etc., are based on unit’s rates. The unit rates, which are attached as an annex to the Seller’s Offer, do not include VAT or any other taxes or charges, which will be added to the invoice at the applicable rates.

 

4.2. Where an estimated number of hours has been provided for the various activities comprising the Services, it should be noted that the figure is for guidance only; the hours actually worked will be invoiced.

 

4.3. The prices stated in the Offer apply exclusively to the payment terms specified therein (and accepted within the Offer’s validity period). Should these payment terms be amended, the prices in the Offer will be revised.

 

4.4. Once the Order has been confirmed by the Seller, the prices of the Services shall be deemed fixed and not subject to revision. However, in exceptional circumstances, a price revision may apply where:

 

1. It has been expressly agreed between the Buyer and the Seller.
2. The deadline for the performance of the Services or their acceptance has been delayed for reasons directly or indirectly attributable to the Buyer.
3. The scope of the Services has been modified at the Buyer’s request.
4. Prices have been quoted in a currency other than the EURO, to the extent that such currency has experienced a change in exchange rate against the EURO between the date of the order and the contractual invoicing dates for each phase.
5. Due to events of Fortuitous Circumstances or Force Majeure as set out in clause 15.

 

5. Terms of Payment

5.1. Invoicing and Payment Terms

Unless otherwise expressly agreed, the cost of the Services shall be invoiced upon completion of the work, on a pro rata basis for the work carried out during the relevant period.

Payments shall be made in accordance with the provisions of Law 15/2010, without in any case exceeding the maximum payment terms set out therein. In the absence of a specific agreement, the maximum payment terms shall be thirsty (30) calendar days from the date of completion of the period covered by the invoice.

5.2. Method of payment

Payment shall be made into the Seller’s bank account or by the method expressly agreed between the Parties.

Payment must be made in full, without any deductions, set-offs, unauthorised withholdings, discounts, taxes, duties, expenses or other charges of any kind.

5.3. Separation of performance and payment obligations

Any postponements, delays, interruptions or suspensions in the performance of the Services, where these are not attributable to the Seller, shall not affect the terms or the agreed payment schedule, which shall remain as originally set out.

Where payments are linked to the completion of phases, the original schedule for those phases shall be taken as reference, regardless of any delays or suspensions that may occur in the performance of the Services, in accordance with the provisions of Articles 9 and 10.

5.4. Late payments

In the event of late payment by the Buyer, interest on arrears as provided for in the Article 7 of Law 3/2004, shall automatically accrue, without the need for prior notice, from the due date until the date of actual payment.

The accrual of interest shall not exempt the Buyer from the obligation to pay the full amount due in accordance with the agreed terms.

5.5. Rights to suspend services due to non-payment

In the event of non-payment or late payment, the Seller may, at its discretion, temporarily or permanently suspend the provision of the Services, without this constituting any breach of contract on its part.

Such suspension shall not affect the Seller’s right to claim:

• Any amounts due and unpaid.
• The corresponding interest on arrears.
• Any costs and damages arising from the suspension, in accordance with the provisions of Article 10.

 

5.6. Complaints

The submission of any complaint, issue or objection by the Buyer shall not entitle the Buyer to suspend, delay or withhold any agreed payments.

 

6. Preparatory work. Uncontracted works, services and supplies. Permits and authorisations.

6.1. It is the Buyer’s responsibility to carry out, in a proper and timely manner, as its own expense and under its own responsibility, the preparatory work necessary to enable the Seller to perform the Services in accordance with the agreed terms and deadlines.

6.2. If the Buyer undertakes to provide auxiliary staff for certain tasks relating to the performance of the Services (hereinafter “Auxiliary Staff”), such personnel must be suitably qualified and the Buyer shall be solely responsible for ensuring compliance with all legal and employment obligations incumbent upon it in relation to such personnel, in accordance with the current legislation, as well as for ensuring strict compliance with all health and safety measures at work, providing the Seller with any document required under applicable regulations. In any event, the Seller shall not be liable in any way for such work or for the Auxiliary Staff.

 

6.3. The Buyer must, at its own expense and under its own responsibility obtain all necessary permits and authorisations to enable the Seller to perform the Services in accordance with the applicable regulations.

7. Subcontracting.

The Seller may subcontract part of the work involved in the performance of the Services. However, the Seller shall remain fully responsible for the quality and timely performance of the contracted Services.

8. Health and Safety and Coordination when work is carried out outside TMCOMAS’s premises.

8.1. The Buyer shall be solely responsible for adopting all necessary measures to protect health and safety at work, and shall therefore be responsible for (I) providing information on the risks specific to the workplace where the contracted works are to be carried out, (II) the measures to be implemented in the event of an emergency, (III) coordination between the various contracts and contractors who, where applicable, are involved in a specific project, (IV) the duties of consultation, participation and training of workers and, in general, (V) any other obligations regarding health and safety at work arising from the application of Law 31/1995, on the Prevention of Occupational Risks, both in respect of its own workers and those of its contractors. In addition to the above, the relevant prevention rules shall be applied in accordance with the Seller’s internal regulations. However, should the Buyer’s prevention rules be more stringent, the latter shall be complied with.

8.2. The Seller is entitled to suspend the provision of the Services in accordance with the Article 21 of Law 31/1995 if it considers that the safety of  personnel is not guaranteed, and shall be entitled to a reasonable extension of the deadline in the event of any delay, and shall be compensated by the Buyer for any loss or damage suffered, such as lost working hours, staff travel, daily allowances, downtime of equipment and tools, etc., in respect of the obligations and responsibilities set out in this clause and those provided for in the aforementioned Law 31/1995 on the Prevention of Occupational Risks.

9. Timeframe for the provision of Services

9.1. Determination of the timeframe

The Order shall clearly specify the timeframe for the provision of the contracted Services; however, this timeframe shall not be binding on the Seller if it differs from that stated in the Quotation or from that accepted by the Seller.

9.2. Amendment of the performance period

The performance period for the Services may be amended in any of the following circumstances:

1. a) Where the Buyer requests amendments to the Order which are accepted by the Seller.
2. b) Where the Buyer has failed to carry out the preparatory work, or to fulfil the obligations, works, services or supplies that are not the responsibility of the Seller, or has failed to obtain the necessary permits and authorisations, in accordance with the provisions of Article 6.
3. c) Where the Buyer fails to fulfil any of the contractual obligations of the Order, particularly those relating to payments.
4. d) Where, for reasons not directly attributable to the Seller, circumstances arise that prevent or delay the performance of the scheduled Services, including, but not limited to, strikes by suppliers, failures in third-party supplies, transport problems, breakdowns, adverse weather conditions, civil unrest, work stoppages by the Seller’s staff or its subcontractors, as well as cases of Fortuitous Circumstances or Force Majeure as provided for in current legislation.
5. e) Where the Buyer unilaterally suspends the Services covered by the Order.

 

 

9.3. Effects of delays and suspensions on payments

Any postponements, delays or suspensions in the performance of the Services shall not affect the agreed payment schedule, which shall remain in force in accordance with the terms originally established.

Where payments are linked to the completion of phases, the original schedule for those phases shall be used as a reference for making payments, regardless of any delays or suspensions in the performance of the Services.

 

 

 

10. Temporary or permanent suspension of the Services

10.1. Scheduling and temporary suspension

To ensure the Services are carried out correctly, and depending on their duration and complexity, the Buyer and the Seller shall agree on a joint schedule.

Where, for reasons not attributable to the Seller, an incident or situation arises that necessitates the temporary suspension of the provision of the Services, the Buyer shall be obliged to:

• Pay for the Services already provided up to the date of suspension.
• Compensate the Seller for the costs and losses arising from such unscheduled suspension, including, but not limited to, unproductive hours, staff travel, subsistence allowances, and the immobilisation of equipment and tools.

Furthermore, the Seller shall be entitled to an extension of the performance period equivalent to the duration of the suspension, plus a reasonable period of notice prior to the resumption of the Services.

 

10.2. Prolonged suspension

If the temporary suspension is extended for a period of ninety (90) days or more, for reasons not attributable to the Seller, the Seller shall be entitled to request the permanent suspension of the Services, with the consequences set out in the following paragraph.

 

10.3. Permanent suspension by decision of the Buyer

If, for reasons not attributable to the Seller, the Buyer decides to permanently suspend the performance of the Services, the Parties shall agree on a schedule for the orderly suspension thereof.

In such a case, the Buyer shall:

• Pay for the Services already performed.
• Pay for the Services that are at an advanced stage of performance at the time of suspension.
• Compensate the Seller for all costs, expenses, and damages arising from such definitive suspension, including commitments made to subcontractors and suppliers.

 

11. Inspection and acceptance.

11.1. Unless otherwise specified in the Order, the Seller shall be responsible for monitoring the progress of the performance of the Services. If the Buyer requires additional monitoring, whether carried out by the Buyer itself or by third parties, such additional monitoring must be approved by the Seller and shall be at the Buyer’s expense.

 

11.2. Within 15 working days of the completion of the Services, the Buyer must carry out an inspection of the Services provided to identify any defects and/or shortcomings therein that may be attributable to the Seller (hereinafter the “Final Inspection”), and must notify the Seller within that period, immediately and in detail, of the existence, where applicable, of such defects and/or shortcomings.

 

11.3. Unless the Parties have agreed on acceptance tests under specific conditions and on specific dates, once the Final Inspection period has elapsed without the Seller having received written notification from the Buyer regarding any defects and/or faults, the Services performed shall be deemed to have been accepted to the Buyer’s full satisfaction, and the warranty period shall commence from that point. Likewise, the Services shall be deemed to have been accepted to the Buyer’s full satisfaction if the Buyer begins to use the products on which the Services have been performed.

 

11.4. If the Buyer has agreed with the Seller to carry out acceptance tests on the Services provided, these must be conducted on the agreed dates, with the Buyer providing, at no cost to the Seller, the equipment, support staff and consumables necessary to carry out these tests. If, for reasons beyond the Seller’s control, these tests are not carried out on the dates and under the conditions agreed, the Services provided shall be deemed to have been accepted by the Buyer to their full satisfaction.

 

12. Warranties

12.1. Scope and duration of the warranty

Unless expressly stated otherwise in the Quotation or in the acceptance of the Order, the Seller warrants that the Services will be performed in accordance with generally accepted professional standards, in a competent and diligent manner.

The warranty shall remain in force for a period of twelve (12) months, commencing on the date of acceptance of the Services, or upon the expiry of fifteen (15) days from the completion of the Services without written notice of dissatisfaction, or from the commencement of use of the work carried out, or from the failure to carry out the agreed tests for reasons not attributable to the Seller.

 

12.2. Scope of the warranty

The warranty is limited exclusively to the rectification of faults or defects that have been acknowledged as attributable to the Seller.

Repairs shall be carried out, at the Seller’s discretion, either at its workshops or at the location where the Services were performed.

The Buyer shall bear all costs associated with dismantling, packing, loading, transport, customs duties, charges and any other expenses necessary for the dispatch of the defective goods and their subsequent return.

 

12.3. Carrying out repairs

Repairs covered by the warranty may be carried out directly by the Seller or by a contractor appointed by the Seller; in all cases, the Seller remains responsible for the proper execution of the work.

 

12.4. Warranty on repaired components

Where the warranty covers specific components or systems that form part of a package of Services, the repair of such components shall not affect the expiry date of the warranty period for the package.

However, the repaired component or system shall be covered by a new warranty period of six (6) months, starting from the date on which the repair is completed.

 

12.5. Warranty exclusions

The following are expressly excluded from the warranty, and the warranty shall be deemed to have lapsed in the event of damage or defects arising from:

• Normal wear and tear.
• Inadequate care or maintenance.
• Improper, negligent or abusive use.
• Modifications, repairs or tampering carried out by personnel other than the Seller.
• Incorrect operating conditions (fluids, gases, pressure, flow rates, power supply, voltage, frequency or disturbances).
• Any cause not attributable to the Seller.

 

12.6. Commissioning and damage mitigation

Where it has been stipulated that the commissioning of equipment or systems must be carried out with the assistance of the Seller, the warranty shall be void if such commissioning is carried out without such assistance.

Furthermore, the warranty shall be excluded if, in the event of a breakdown, the Buyer fails to take the reasonable measures necessary to limit or mitigate the damage.

 

12.7. Maximum time limit

Under no circumstances shall the Seller be liable for defects in the equipment or systems covered by the Services for a period exceeding twelve (12) months, calculated from the start of the warranty period defined in clause 12.1.

 

13. Limitation of Liability

13.1. Maximum Limit of Liability

The Seller’s total liability, including that of its agents, employees, subcontractors and suppliers, arising from the performance or non-performance of its contractual obligations, shall in no event exceed the total value of the relevant contract or Order.

This limit shall apply regardless of the cause of the claim, whether contractual, non-contractual or of any other nature, and shall apply cumulatively to all claims that may be made.

 

13.2. Exclusion of indirect damages

Under no circumstances shall the Seller be liable for any indirect or consequential damages, including, but not limited to:

• Loss of profit.
• Loss of revenue, production or use.
• Capital or downtime costs.
• Delays or penalties claimed by third parties against the Buyer.
• Loss of anticipated savings.
• Increase in operating costs.
• Costs of substitute energy.
• Any other special or indirect damages.

 

13.3. Prevalence of the limitation

This limitation of liability shall prevail over any other provision contained in the Offer, the Order or any other contractual document, unless such provision further restricts the Seller’s liability.

 

14. Governing Law. Submission to Jurisdiction and Competence.

These Terms and Conditions shall be governed by, and construed in accordance with, Spanish law. The parties expressly waive any other jurisdiction to which they might be entitled and submit to the jurisdiction and competence of the Courts and Tribunals of Blanes or Girona, depending on the subject matter.

 

15. Fortuitous Event and Force Majeure

15.1. Definition and general effects

Any unforeseeable, unavoidable event beyond the Seller’s reasonable control that prevents or hinders, in whole or in part, the fulfilment of its contractual obligations shall be deemed a Fortuitous Event and/or Force Majeure.

By way of example and without limitation, these include: strikes by suppliers, transport providers and service providers; failures in third-party supplies; problems or disruptions in transport systems; natural disasters; floods; storms; riots; strikes; labour disputes; work stoppages by the Seller’s staff or its subcontractors; sabotage; acts, omissions or interventions by public authorities or administrations; breakdowns or accidental stoppages at the Seller’s workshops; as well as any other circumstance legally recognised as a Fortuitous Event or Force Majeure.

 

15.2. Suspension of obligations and extension of deadlines

Where an event of Fortuitous Circumstances and/or Force Majeure occurs, the fulfilment of the obligations affected shall be suspended, without any liability on the part of the Seller, for such time as is reasonably necessary in the circumstances.

The occurrence of a case of Fortuitous Circumstances and/or Force Majeure shall entitle the Seller to a reasonable extension of the deadline for the performance of the Services, without such extension giving rise to penalties or additional liability.

15.3. Notification

The Seller shall notify the Buyer, as soon as possible, of the occurrence of any event of Fortuitous Circumstances and/or Force Majeure, specifying its nature and expected duration. The Seller shall also notify the Buyer of the cessation of such circumstances and the estimated timeframe for resuming performance of the affected obligations.

 

 

15.4. Effects on payments, warranties and liability

 

The occurrence of a case of Fortuitous Circumstances and/or Force Majeure:

• Shall not affect the payment schedule or terms, which shall be governed by the provisions of Article 5.
• Shall not extend or restart the warranty periods, which shall be governed exclusively by the provisions of Article 12.
• Shall not give rise to any right to compensation in favour of the Buyer, without prejudice to the express provisions of this contract.
• Shall be understood, for all purposes, within the limits and exclusions of liability set out in Article 13.

 

15.5. Prolonged Force Majeure and resolution.

If the cause of the Fortuitous Event and/or Force Majeure lasts for more than three (3) months, the Parties agree to make every reasonable effort in good faith, within the following thirty (30) calendar days, to reach a fair resolution.

 

If, upon expiry of this period, it is not possible to reach a solution, the Seller may terminate the contract, in whole or in part, by giving written notice to the Buyer, without incurring any liability on its part, and shall be entitled to receive payment for the Services actually performed and for the commitments undertaken to date, in accordance with the provisions of the contract.

 

16. Confidentiality.

The Seller and the Buyer shall treat as confidential all documents, data, materials and information provided by one party to the other and shall not disclose them to any third party, nor use them for any purpose other than the performance and provision of the Service, unless the other Party has given its prior written consent.

 

This shall not prevent the Seller from providing the Buyer’s name and basic details of the Service as part of its commercial references.

 

17. Termination

17.1. Either party may terminate the contract immediately by giving written notice to the other party if the other party is in material breach of the contract. No breach of the order shall be deemed material unless the defaulting Party has been notified in writing in advance and has failed to remedy the breach within thirty (30) calendar days of such notification.

Furthermore, the following circumstances shall constitute grounds for termination:

– The dissolution and/or liquidation of either party, except in the context of merger operations carried out within the Group to which each party belongs.

– The cessation of business by either party.

– The persistence of an event of Fortuitous Event or Force Majeure for more than three (3) months from the date of receipt by one of the parties of the notice set out in clause 15.4 of this document.

– Any other cause for termination expressly set out in other clauses of these Terms and Conditions.

 

17.2. In the event of termination for reasons attributable to the Buyer, the Seller shall be entitled to receive:

– The amount corresponding to the value of the Services already performed in accordance with the prices set out in the Order.

– The amount for Services yet to be performed and/or equipment and materials yet to be delivered which the Seller is obliged to receive from its subcontractors and/or suppliers, once they have been performed or delivered to the Buyer.

– The cancellation fee for orders placed by the Seller with its suppliers and/or subcontractors, where such cancellation is possible.

– Compensation for any other damages suffered because of the Buyer’s breach.

 

17.3. In the event of termination due to Fortuitous Circumstances or Force Majeure, the Seller shall be entitled to receive:

– The amount corresponding to the value of the Services already performed in accordance with the prices set out in the Order.

– The amount for Services yet to be performed and/or equipment and materials yet to be delivered which the Seller is obliged to receive from its subcontractors and/or suppliers, once they have been performed or delivered to the Buyer.

– The cancellation fee for Orders placed by the Seller with its suppliers and/or subcontractors, where such cancellation is possible.