General terms and conditions
1.1. The scope, quantity, quality, quality, functionality and technical specifications of any goods, equipment, documentation, software, works or services to be provided by TycheTools (collectively referred to as the "Works") are defined exclusively, as the case may be, in the order confirmation issued by TycheTools or in the Contract signed between the Customer and TycheTools.
1.2. The entire agreement entered into by the parties shall consist of TycheTools' offer letter, together with these terms and conditions and any other documents expressly identified in the offer letter as part of the Agreement (the "Agreement"). Any terms or conditions proposed by Customer shall only apply where TycheTools expressly agrees in writing to such terms or conditions.
1.3. References in the Agreement to "TycheTools" shall be construed as references to TycheTools, S.L.U. with VAT number B88593660 and registered office at C/ Sebastián Gómez, 5, 6ª, 28026, Madrid (Spain). References to the "Client" shall be understood to be made to the legal entity to which the letter of offer is addressed.
2. Contract Price and Terms of Payment
2.1. Unless otherwise agreed in writing, the hardware prices do not include packaging, freight, insurance and any other additional costs. The price payable by the Customer for the Works under this Contract shall be referred to in this Contract as the "Price".
2.2. Unless otherwise stated, if TycheTools undertakes any construction, erection, installation, performance or testing of the Works or any part thereof outside TycheTools' premises ("Site Works"), the Customer shall bear all additional costs such as travel and travel expenses, daily subsistence allowances, in addition to the Contract Price.
2.3. The Contract Price does not include indirect taxes or any duties, customs, public charges or fees related to the Contract. The Client agrees to pay or indemnify TycheTools for any taxes, customs, duties, charges or other public charges accruing to TycheTools in connection with the Works. All payments shall be made in full within 30 days of invoice to TycheTools' bank account without deduction. If Customer is at any time required by law to make any deductions, the amount Customer is required to pay TycheTools shall be increased to the amount that TycheTools would be required to receive net of such deductions. Customer shall provide TycheTools with tax receipts relating to the relevant payments.
2.4. Without prejudice to any other rights it may have, in case of delay of the agreed payment deadline TycheTools may charge interest for late payment of 8 percentage points above the current base interest rate of the European Central Bank.
2.5. TycheTools reserves the right to adjust the Contract or Bid Price for any escalation in the cost or transportation of materials that occurs in the period of time between the date of our bid, and the date on which we or any company within the TycheTools Group orders the materials for the manufacture or assembly of our supply, or the time at which they are invoiced ("Price Adjustment"). Any Price Adjustment shall be based solely on an increase in our direct costs. In the event that TycheTools requests a Price Adjustment greater than 5% of the previous price, the Parties will reach agreement on the impact of such increases.
3. Delivery Times, Delays and Penalties
3.1. The agreed dates for the performance of the Works or part thereof shall be extended for a reasonable period of time in the event that TycheTools is delayed or prevented from performing its obligations by the fault of any third party or by the Customer's failure to perform its obligations.
3.2. TycheTools may decide to make deliveries in phases or partial deliveries and is entitled to invoice and receive payment for such deliveries.
3.3. If Customer, Customer's contractors or any third party designated by Customer delays or causes a delay in the Work, Customer shall reimburse TycheTools for all additional costs and expenses reasonably incurred due to such delay.
3.4. In the event that the Work does not achieve the level of performance agreed to in the Contract for reasons attributable solely to TycheTools, then TycheTools shall be allowed a reasonable additional period of time to achieve such level of performance by performing at its own expense such work as TycheTools deems necessary to attempt to achieve such performance. If after completion of the Work and all other performance tests the agreed performance levels are not achieved, the Customer shall be entitled to such penalty, if any, as may be agreed in the Contract, but which shall in no event exceed 5% of the price of that part of the Work which does not meet the agreed performance level. The payment of the penalty shall be the Client's sole remedy in the event of failure to meet the performance level agreed in and in connection with the Contract.
4.1. TycheTools may suspend performance of its obligations under this Agreement if (i) the Customer is in default of any payment or the provision of payment security required under the Agreement for more than thirty (30) days, or (ii) the Customer fails to perform those obligations necessary for TycheTools to complete delivery of the Work, or (iii) the Customer is otherwise in material breach of the Agreement.
4.2. In the event that TycheTools suspends the Agreement pursuant to the preceding paragraph or in the event that Customer suspends the Agreement without the express written consent of TycheTools, Customer shall immediately be liable to pay TycheTools for all parts of the Work already performed. Customer shall also reimburse TycheTools for all additional costs and other expenses incurred as a result of the suspension. Any dates included in the Contract shall be extended for a reasonable period in order to deal with the effects of the suspension.
5.1. Without prejudice to any other rights it may have under this Agreement, TycheTools may terminate the Agreement for the following reasons: (a) if Customer comes under the direct or indirect control of any competitor of TycheTools; or (b) if Customer materially breaches the Agreement, without remedying the damage caused within a reasonable period of time after written notice from TycheTools, or is in default in making any payment or providing the payment assurances required by this Agreement for more than thirty (30) days; or (c) if the Agreement has been suspended for more than sixty (60) days. d) If Customer fails to comply with TycheTools' Health and Safety regulations for employees.
5.2. In the event of termination by TycheTools, TycheTools shall be entitled to recover from Customer (i) the Contract Price, net of any costs not incurred and (ii) any additional costs or expenses incurred by TycheTools as a result of such termination.
6. Force Majeure
6.1. If either Party is unable to perform its obligations under this Master Agreement due to an event reasonably beyond its control relating to an act of God or force majeure which prevents such Party from performing its obligations under this Agreement, such Party shall not be liable to the other Party for any failure or delay in performing such obligation provided that it notifies such Party as soon as reasonably practicable of the event which has occurred. In the event that the Force Majeure Event lasts for a period of three (3) months or longer, either Party may terminate this Agreement without further obligation other than to pay any outstanding amounts due for services rendered and any unavoidable expenses incurred by TycheTools.
7. Rights of Use
7.1. Except as otherwise expressly agreed to in this Agreement by the parties, all intellectual property rights contained in the Works, in all documents provided by TycheTools in connection with this Agreement (the "Documents"), and in all software, hardware, know-how ("IPR") and other items provided with or as part of the Works and the Documents, shall be deemed to be the exclusive property of TycheTools. Customer shall not reverse engineer, decompile or reproduce the Works or any part thereof, and shall ensure that third parties do not reverse engineer, decompile or reproduce the Works, provided that such limitation is not prohibited by law.
7.2. Customer may use the Documents unmodified and to the extent necessary for the operation and routine maintenance of the Works by Customer's personnel, unless the Works involve the preparation of studies, audits or reports ("Commissioned Documents") or TycheTools expressly provides otherwise in writing.
7.3. If the Work includes TycheTools software, such software is licensed under the license terms contained in the documentation relating to the software, in the software itself or in the accompanying license terms (in each case, the "Applicable License Terms"), which shall prevail over this Section 2. The software is issued in object code, without source code. The licence only grants the non-exclusive right to use the software as described in such applicable licence terms or, if not provided, for the purpose of carrying out operations and maintenance routines of the Works.
7.4. The Works may include the use of third party software. To the extent that specific license terms of third party licensors apply, TycheTools will provide such license terms with the Works. Customer will be required to comply with such third party licensor license terms.
7.5. To the extent that the software includes Open Source Software ("OSS"), TycheTools will provide the applicable OSS license terms with the Works. The OSS license terms shall prevail over the provisions of this Agreement. Details on any third party software and OSS included in the Works are available in the software documentation (e.g. README_OSS).
7.6. The rights granted in Clause 7.2 shall be transferable to a third party only with the transfer of the transfer of ownership of all Works to such third party.
7.7. The Ordered Documents may be used freely by the Customer, in any case respecting the authorship of TycheTools as well as, if applicable, the confidentiality of the included data.
7.8. Without prejudice to Customer's intellectual property rights and in accordance with applicable law, TycheTools and its Affiliates may collect, use, modify and copy any data received in connection with the Works.
8. Customer's Obligations
8.1. Customer shall apply for and obtain all licenses, permissions and authorizations necessary for the commissioning, acceptance and use of the Works.
8.2. The provision of the Works shall be subject to the Customer providing, at its own cost and in a timely manner, everything reasonably necessary to ensure that TycheTools personnel can commence work on time and carry out the Works without interruption. For Work at the Site, the Customer shall provide, as may be necessary for the achievement of the Work including access to the premises, advice on visas and work permits, materials, media and tools, information etc.
8.3. The Client is solely responsible for the conception, implementation and maintenance of a comprehensive, state-of-the-art security concept to protect his company, plants, systems, machines and networks (including the Works) against cyber threats.
8.4. Customer acknowledges that the Works on the Site may generate and/or disclose hazardous wastes that are subject to specific legal and regulatory requirements under applicable "hazardous materials" or "hazardous waste" laws. If TycheTools discovers hazardous materials (including asbestos), environmentally hazardous substances, geological or geothermal conditions, archaeological finds or any other local environmental conditions that have an adverse effect on the Works, the Client shall be responsible for any required remediation and shall also indemnify TycheTools for any additional costs and expenses reasonably incurred. The Customer, at its own risk, shall provide containers which shall comply with all legal and regulatory requirements and such hazardous waste shall be managed, stored and disposed of in accordance with applicable laws.
8.5. TycheTools shall comply with all rules and regulations of Customer's site during the performance of the Work at the Site, provided that Customer has first informed TycheTools in writing of all such site rules and regulations in effect at the Premises a reasonable period of time prior to the performance of the Work. TycheTools shall not be obliged to carry out the Work on the Site in a dangerous and unhealthy environment. All necessary safety and preventative measures shall be taken by the Customer, at no cost to TycheTools, before the Site Work commences and shall be maintained by the Customer during the performance of the Site Work.
9. Passing of Risk and Title
9.1. The risk of damage to or loss of any part of the Works shall pass to the Client on delivery.
9.2. The Works shall be deemed to have been delivered even if the Client refuses to accept delivery without good cause. In such a case, the Works may be stored and insured at the Client's risk and expense and any payment shall be due. The same consequences shall apply in the event that the scheduled delivery date is delayed for reasons attributable to the Client.
9.3. Title to any part of the Works shall remain with TycheTools until TycheTools receives payment in full for that part of the Works.
10.1. If the Works are subject to acceptance, the Customer shall accept the Works upon completion of the Works including successful acceptance tests if such tests have been agreed. In case of partial delivery, the Client shall accept the functional parts of the Works separately as they are completed.
10.2. Failure to communicate acceptance within two (2) weeks of delivery of the Works, commercial commissioning or failure to conduct acceptance tests within one (1) week of delivery of the Works shall constitute acceptance of the Works from the date of delivery.
10.3. The Client may refuse acceptance only in the event of Defects in the Works which significantly affect the use of the Works. Such Defects shall be listed in the acceptance record and shall be remedied by TycheTools within a reasonable period of time agreed between the parties.
10.4. All costs and expenses belonging to the Customer or to third parties incurred in connection with inspections, tests, approvals, acceptance processes, etc. shall be borne by the Customer.
11. Changes to the Works, Variations
11.1. Either party may at any time request in writing changes, modifications or additions to the scope of the Work ("Change"). Upon receipt of the Change request, TycheTools will provide the Client with a written quotation for the requested Change, specifying the effects the requested Change will have on the Contract, including any necessary adjustments to the Contract Price, as well as the agreed timetable and dates, scope of the Work and any other clauses of the Contract that are affected. If Customer would like to proceed with a Requested Change based on TycheTools' proposal, Customer shall notify TycheTools in writing within fourteen (14) days of receipt of such proposal. TycheTools is not obliged to implement such Change until it has been agreed in writing between the parties.
11.2. If applicable laws, rules, regulations, engineering standards, codes of practice, and decisions or guidance issued by courts or public authorities are changed or become effective after the Contract is signed, TycheTools shall be entitled to an adjustment to the Contract, including, without limitation, an adjustment to the Contract Price to reflect the additional costs to be incurred by TycheTools, the timing and scope of the Work, as necessary to compensate for any adverse effects or additional requirements arising from such changes.
11.3. Without prejudice to the right of the parties to request Changes, TycheTools may make changes at any time to the Works without the prior approval of the Customer, provided that such changes do not adversely affect the agreed operability, functionality and technical characteristics of the Works. TycheTools shall not be entitled to any additional payment, extension of time, or other adjustment to the Contract in connection with such changes.
12. Liability Regime
12.1. Except as otherwise expressly provided in this Agreement, this Clause shall exclusively govern TycheTools' liability for damages, costs and expenses, regardless of the legal theory on which they are based, including without limitation liability arising out of the Agreement, tort (including negligence), fraud or misrepresentation, indemnification obligations, whether under warranty or otherwise.
12.2. TycheTools shall in no event be liable, whether pursuant to an indemnity obligation or in contract, in tort (including negligence or statutory liability) for loss of profits, cost of capital, loss of production, interruption of operations, loss of use, loss of interest, loss of information and/or data, for claims arising out of contracts between the Customer and third parties, loss of hydrocarbons, loss of energy, voltage irregularities, frequency fluctuations, cost of purchase or replacement energy or for any indirect or consequential damages.
12.3. TycheTools' total liability whether pursuant to any indemnity or in contract, tort (including negligence and statutory liability) or otherwise arising out of or in connection with the Contract shall not exceed twenty percent (20%) of the Contract Price per occurrence and shall in no circumstances exceed in the aggregate one hundred percent (100%) of the Contract Price.
12.4. All liability of TycheTools under this Agreement shall cease upon expiration of the warranty period.
12.5. All rights and remedies available to Customer against TycheTools not expressly set forth in this Agreement are excluded.
12.6. In the event that the Works include supervision, TycheTools shall only be obliged to provide clear and correct instructions and shall not be liable for the consequences of non-compliance with such instructions.
13. Liability for Defects
13.1. In this Agreement, and subject as provided in Clause 10.2, a defect shall mean any non-conformity in the Works with the terms expressly set out in this Agreement resulting from the circumstances existing in the Works at the time of passing of risk to the Client ("Defects").
13.2. The following shall not be Defects: a) normal wear and tear, non-conformity due to excessive stress, b) non-conformity resulting from culpable or negligent handling; non-compliance with instructions or recommendations in operating or maintenance manuals and other documents; c) installation, construction, modification, commissioning or pre-commissioning work, not carried out by TycheTools in each case, d) non-reproducible software errors, e) defects which do not significantly or materially impair the use of the respective Works.
13.3. Customer shall notify TycheTools in writing of any Defect without undue delay. Upon such notice, TycheTools shall, at its option, remedy the Defect by repair, replacement or recurrence. TycheTools shall provide a reasonable period of time and opportunity to remedy the Defect. In this regard, Customer shall grant TycheTools access to the Nonconforming Work, perform any assembly or disassembly and provide access to operations and maintenance data, at no cost to TycheTools. Upon TycheTools' request, Customer shall cause title to the parts to be replaced to be transferred to TycheTools. To the extent that any part of the Work is to be merely delivered, Customer shall immediately inspect such part and notify TycheTools in writing of any Defect without undue delay.
13.4. Unless otherwise agreed, the period of liability for Defects of any part of the Works is twelve (12) months from the date of passing of risk. For replaced or repaired parts of the Works, the Defects Liability Period shall be six (6) months from the date of replacement or repair, if the original Defects Liability Period for the Works expires earlier. In any event, the Defects Liability Period shall end no later than 24 months after the commencement of the original Defects Liability Period. TycheTools shall not be liable for any defects unless notified in writing by Customer prior to the end of the Defects Liability Period.
13.5. TycheTools does not warrant that the Works are secure from cyber-attack and do not contain any vulnerabilities. If the software is defective, TycheTools shall only be obligated to provide Customer with an updated version of the software in which the defect has been cured when such updated version is reasonably available from TycheTools, or if TycheTools is only the licensee, to TycheTools' licensor. If the software has been modified or individually developed by TycheTools, TycheTools shall further provide Customer with an alternative or other interim remedy until such time as a new, updated version of the software becomes available, if such interim remedy is economically reasonable and if Customer's business operations would be substantially impeded.
13.6. If TycheTools undertakes remedial work and it is ultimately determined that there was no Defect, Customer shall pay TycheTools for such remedial work including error diagnosis.
13.7. Any other liability attributable to TycheTools, as well as any other claims, rights and remedies of Customer in the event of Defects in the Work, shall be excluded except as expressly provided in this Clause, and provided that TycheTools fails at least three (3) times to remedy the Defect. All warranties, representations, conditions and any other terms of any kind established by statute or common law, to the extent permitted by applicable law, are excluded from this Agreement.
14. Intellectual Property Claims
14.1. If a third party makes a legitimate claim against the Customer that the Works infringe an IPR owned by that third party, subject to the following provisions of this Clause 14, TycheTools may, at its option and cost, either: a) obtain a right to use the IPR in question in connection with the Works, or b) modify the Works so as not to infringe such IPR, or c) replace the infringing portion of the Works. If, in TycheTools' opinion, none of the foregoing is reasonably possible, TycheTools may take back the relevant part of the Works and will refund the price of that part.
14.2. TycheTools' obligations set forth in the preceding paragraph are subject to the following conditions: (a) Customer has promptly notified TycheTools in writing of the third party's claim and has provided TycheTools with a copy of each communication, notice or other action relating to the alleged infringement, (b) Customer does not acknowledge an infringement and provides TycheTools with the authority, information and assistance reasonably required by TycheTools to defend or settle such claim, and (c) TycheTools has sole control of the legal defense (including the right to select counsel) and the sole right to settle such claim. If Customer ceases use of the Works or any relevant portion thereof, Customer shall notify the third party in writing that cessation of such use does not constitute an admission of IPR infringement.
14.3. Any claim by the Customer shall be excluded if the Customer (including its agents, employees or contractors) is responsible for the infringement of IPR. The Customer shall be held liable for the claim of IPR infringement, without limitation if caused by: (i) the Customer's specific requirements, (ii) the use of the Works for a purpose or in a manner not intended by TycheTools, (iii) a modification of the Works by the Customer, or (iv) the use of the Works in connection with other equipment.
14.4. This Clause 14 sets forth TycheTools' entire liability for breach of third party IPR. Any other rights, claims or remedies of Customer shall be excluded.
15. Confidentiality. Data Protection
15.1. The parties shall use any documents, know-how, data or other information provided by the other party ("Information") solely for the purpose of this Agreement and keep it confidential subject to the following. The parties may share Information with their employees or with third parties who need to know such Information for the purpose of the Agreement on the assumption that such employees or third parties are bound by the same obligations of confidentiality. The party disclosing the Information shall be held liable for any breach by its employees or third parties.
15.2. This obligation of confidentiality shall not apply to Information which: (a) is or becomes publicly available, unless this is through the fault of the party receiving the Information; (b) is disclosed to the receiving party in good faith by a third party who is entitled to make such disclosure; (c) is independently developed by the receiving party without reliance on the Information; (d) comes to the knowledge of the receiving party prior to disclosure by the other party; or (e) is required to be disclosed by Law (subject to the obligation on the receiving party to notify the disclosing party promptly of such requirement).
15.3. This obligation of confidentiality shall remain in force until 5 years after the termination of the Agreement.
15.4. TycheTools and the Customer shall comply with the legal provisions regarding the protection of personal data. The Customer is obliged to create the prerequisites required by law (e.g. obtain a declaration of consent) in order for TycheTools to be able to perform the Works without infringing the law. The Customer is advised, to the extent possible, to take appropriate measures to prevent TycheTools' access to the Customer's personal data or trade secrets during the performance of the Works. In the event that TycheTools cannot be prevented from accessing the Customer's personal data, the Customer shall be obliged to inform TycheTools in good time prior to the execution of the Works. The Customer and TycheTools shall agree on the measures to be taken.
16. Export Regulation
16.1. In the event that the Recipient transfers goods, works and/or services supplied or performed by TycheTools, the Recipient expressly declares that it will comply with all applicable national and international (re-)export control regulations of Spain, the European Union and the United States of America.
16.2. Prior to the transfer of goods, works and/or services supplied by TycheTools, the Recipient undertakes to check and ensure, through appropriate measures, the following: a) That no infringement or non-compliance occurs with respect to any embargoes imposed by the European Union, by the United States of America and/or by the United Nations, by the transfer of such goods, works and services, considering also the limitations of national trade and the prohibitions to circumvent such embargoes taking also into account any prohibitions to circumvent these embargoes (e.g. by improper diversion). b) That the goods, works and services will not be used in connection with armaments, nuclear technology or weapons, provided that such use is subject to prohibition or authorisation, unless prior written authorisation is given by TycheTools. c) that it complies with all applicable European Union and United States of America Sanctioned Party List ("Sanctioned Party Lists") regulations relating to doing business with entities, persons and organisations listed therein.
16.3. If export control checks by TycheTools or any Competent Authority are necessary, the Recipient shall, upon TycheTools' request, promptly provide all information regarding the End Customer, specific destination and specific use of the goods, works and services supplied by TycheTools, as well as any export restrictions that may exist.
16.4. The Recipient shall indemnify and hold TycheTools harmless from and against any and all claims, proceedings, actions, fines, losses, costs or damages arising out of or in connection with any breach of (re-)export control regulations, sanctions or violation of the aforementioned embargoes or sanctions by the Recipient and/or business partner of the Customer, and shall compensate TycheTools for all losses and expenses incurred as a result thereof.
17. Jurisdiction and Applicable Law
17.1. This agreement is governed by and construed in accordance with Spanish law. All matters not provided for herein shall be resolved in accordance with Spanish law. It is agreed that the parties submit to the jurisdiction of the Courts and Tribunals of the city of Madrid, expressly waiving their own jurisdiction, if any, for any actions and claims that may arise from this Contract.