General Terms of Purchase
1. GENERAL CONDITIONS
1.1. The present Purchase Order Terms and Conditions, available at ADIRA’s website (www.adira.pt) regulate all the Purchase Orders sent by ADIRA. Any alteration, variable, conditioning or addendum to the present Terms and Conditions will only be considered valid and effective if it appears on the Purchase Order, Particular Conditions of Order and/or Contract and it has been agreed in writing by ADIRA.
1.2. In case of contradiction between the present Terms and Conditions and the Purchase Order, Particular Order Conditions and/or Contract, the determined in these latter documents shall prevail.
1.3. ADIRA’s Purchase Order Terms and Conditions take precedence over any Supplier’s Sale Order General Conditions.
1.4. The Supplier accepts the present Purchase Order Terms and Conditions by accepting the Purchase Order, as defined in point 4 of this document. Alternatively, if the Supplier has previously received these Terms and Conditions on past commercial interactions with ADIRA, these will be considered, for all the intents and purposes, known to the Supplier when presenting a quotation for an equipment or material on a Purchase Order from ADIRA.
1.5. By accepting the Purchase Order, the supplier automatically:
1.5.1. Recognizes it has in its own possession and is knowledgeable of all the information needed to execute the Purchase Order;
1.5.2. Recognizes its capacity to perform the Purchase Order;
1.5.3. Waives the right to apply its own Sale Order General Conditions.
1.6. Any eventual incompatibility, doubt, error or omission of the Purchase Order must be communicated in writing to ADIRA, within 2 days from the date that the Purchase Order was sent. The deadlines will not be affected by those incompatibilities, doubts, errors or omissions, so they will not be changed.
1.7. Any alteration to the Purchase Order requested by the Supplier must be expressly approved by ADIRA in writing and, as it being after the Purchase Order acceptance, the Supplier cannot execute it without written agreement by ADIRA.
1.8. The Supplier is responsible to inform ADIRA whenever a deviation from functionalities and characteristics planned on the Purchase Order is detected. For the effect, the Supplier must propose alternatives to satisfy the Purchase Order and ADIRA has the right to reject it.
1.9. Any alteration on the productive process, materials or equipment in relation to what was defined on the negotiation phase, Purchase Order or Particular Conditions of Order and/or Contract will only be valid upon ADIRA’s written approval.
1.10. If the Supplier does not comply to the stipulated on the previous point, ADIRA has the right to reject the materials/equipment relative to the Purchase Order, being the Supplier liable to the penalty application presented on the point 10 of this document.
1.11. In the context of a Purchase Order, there will be no contractual relation between the final Client (if it is not ADIRA) and the Supplier and/or its Subcontractors, being the last ones obliged to respect the commercial relation between ADIRA and its Clients.
1.12. Unless otherwise stated in writing by ADIRA, the contractual idiom must be Portuguese. For all the documents in the Purchase Order presented on other idiom, it will be assumed that the Supplier is capable of interpreting them, unless otherwise stated in writing prior to acceptance. In the case of equipment user manuals, if ADIRA requests it, the Supplier undertakes to deliver them in English without any additional costs.
2. SUPPLY SCOPE
2.1. The Purchase Order must be fulfilled in strict compliance with the specifications, conditions and quantities established on that Purchase Order, Particular Order Conditions, Contract and/or others contract documents, as well as the respect for norms and legal rules applicable to the subject matter of the supply.
2.2. The Supplier undertakes to communicate within 24h any conditioning that may compromise the execution of the Purchase Order under agreed terms.
2.3. On the Purchase Order, all accessories and necessary activities are considered included in the supply (i.e. detail engineering, technical information, transport, unloading and possible testing of materials and equipment, or others), for full compliance with it.
2.4. Whenever requested by ADIRA, the supplier shall attend in person or represented by a qualified and authorized person in meetings concerning the supply scope.
2.5. The Supplier shall provide to ADIRA, without any additional charges, all the materials, documentation or any other activities on its supply scope that may be necessary for the proper functioning, operation and/or maintenance of the materials and equipment belonging to the Purchase Order, yet not mentioned or completely specified in this and its attachments.
2.6. Whenever, within the scope of the Purchase Order, Supplier’s activity is conditioned or conditioned by third parties, The Supplier undertakes to cooperate in order to overcome the resulting difficulties.
2.7. The Supplier is required to fulfill and enforce by its personnel, in a strict way, all laws and regulations applicable to the developed activity and demonstrate that is in possession of all the authorizations, licenses and/or approvals that, under law and regulation, may be applied and proven necessary for the development of that activity, as well as to fulfill the obligation arising from the Purchase Order. Additionally, the Supplier further ensures compliance with all safety standards, general and specific, as well as all the other specific service conditions in existence in ADIRA and communicated by it.
2.8. The Supplier is fully responsible by all and any damage that may result from non-compliance with the above standards.
2.9. The Supplier is responsible for obtaining any authorizations, approvals, import/export approvals or licenses that prove necessary in accordance with their responsibilities to fulfill the supply obligations arising from a Purchase Order.
2.10. The Supplier undertakes to fulfill and follow all definitions of the technical specifications of the equipment and materials expressed in the Purchase Order (i.e. specification, manufacturing standards and industrial procedures, methods of assembly, testing and its operation) and at the rules and standards legally applicable, not being able to change them or perform them in other way without written approval from ADIRA.
2.11. The risk transfer of the object of the Purchase Order takes place with its delivery under the conditions and in the place provided on it.
2.12. For the interpretation of the contracted supply conditions will be used the international rules (Incoterms 2010) of the International Chamber of Commerce.
3.1. The Supplier may under no circumstances and without the prior consent of ADIRA:
3.1.1. Assign or transfer a part or all of a Purchase Order;
3.1.2. Constitute a company, consortium or group of any kind to execute a Purchase Order;
3.1.3. Subcontract the parts of the Purchase Order requesting their direct specification and awarded to the Supplier for its competence or experience at that field.
3.2. Given ADIRA’s agreement to the Supplier to subcontract part or parts of the Purchase Order, the Supplier shall ensure that the supplies are entrusted to its subcontractors and will be the only responsible towards ADIRA for the correct execution of the Purchase Order.
3.3. ADIRA reserves the right to refuse any entity presented by the Supplier on the list of its subcontractors.
4. PURCHASE ORDER ACCEPTANCE
4.1. The acceptance of the Purchase Order shall be made by sending to ADIRA a copy of the Purchase Order, in electronic format, to the respective Purchase Order issuer, or in paper, duly signed by the legal representative(s) of the Supplier in the corresponding field.
4.2. In the absence of any information within 2 business days after sending the Purchase Order, it will be considered its acceptance and the acceptance of the present Conditions, even if such confirmation was not sent to ADIRA.
5.1. The prices are fixed and not subject to review.
5.2. The prices on the Supplier proposal include all the costs and expenses that result, or are consequence, from the execution of the Purchase Order, Particular Conditions of Order and/or Contract.
5.3. The supply prices include packaging, transportation, loading, unloading and insurance of the supplied goods delivered at the places indicated by ADIRA in the Purchase Order, Particular Conditions of Order and/or Contract.
5.4. All the charges, fees and taxes, obligations, licenses, import duties, customs duties and any other costs related to the Purchase Order execution, both in the origin country and destination country, are included in the price.
5.5. Similarly, in the case of eventual supplies falling on imported products and goods, it will be considered, by the date of the Purchase Order, to be included on the price the contingencies of currency exchange and the payment of taxes and fees and ADIRA will not assume any price adjustment resulting from that.
6. STORAGE, PACKAGING AND PACKING
6.1. The materials and equipment to be delivered must be properly packed and numbered by the Supplier, in order to allow their identification for warranty matters.
6.2. If requested, together with the equipment and materials supplied, the Supplier must provide to ADIRA a breakdown list of all delivered items, with information on the respective numbering mentioned in the previous point.
6.3. The Purchase Order number must be indicated throughout the documentation (Shipping Guides, Invoices, Transport Guides, etc.).
6.4. Unless otherwise specified in the Purchase Order, Particular Conditions of Order and/or Contract, any packaging must preserve the equipment from any deterioration, according to its normal form of storage, for a 6 (six) months period of time.
6.5. ADIRA reserves the right to postpone the shipment of a part or all of the goods. In this case, the Supplier shall ensure its storage and protection on its facilities and shall be responsible for the goods with pending delivery, assuming the storage costs and transportation for a 3 (three) months period counting from the specified delivery date.
6.6. It will not be accepted from the Supplier any debit from packaging, boxes, wrappers or other storage and transport devices, unless that is specified in the Purchase Order, Particular Conditions of Order and/or Contract.
6.7. All risks of transport and storage of goods will be borne by the Supplier until the delivery moment on the indicated location, unless otherwise specified in the Purchase Order, Particular Conditions of Order and/or Contract.
7.1. The materials and equipment to be delivered, as well as their integral component parts, shall be new and free from any defects.
7.2. The Supplier is responsible for the quality of the materials and equipment supplied.
7.3. All goods are subject to ADIRA inspection and approval and will be returned if they do not meet specifications, completely or in part, to the Purchase Order specifications. The Supplier is responsible, at his own expense, for the replacement of those goods and for all the expenses associated with their return, repair and replacement.
7.4. In order to execute audits, surveys or verification of materials and manufacturing processes according to the Purchase Order specifications, the Supplier shall give ADIRA representatives free access to its facilities, any time ADIRA finds it convenient, and ADIRA may be accompanied by the Client or any third parties contracted to give their opinion. ADIRA shall have the right to refuse any materials or manufacturing processes that do not comply with the clauses established. This inspection, or its lack, do not decrease the Supplier responsibility towards the provisional and definitive reception of the material.
7.5. In the event of any non-conformities in supply within the scope of the Purchase Order, all costs of travel, inspection, disassembly, occurrence identification, assembly, testing and inspection incurred in this regard shall be borne by the Supplier.
8.1. The Supplier is responsible to celebrate and maintain all required and necessary insurance to full compliance with the Purchase Order, in accordance with these General Conditions, Particular Conditions of Order and/or Contract, in order to safeguard ADIRA’s position with respect to any loss or damage incurred during the supply execution.
8.2. The Supplier is required to submit to ADIRA, whenever requested, the proof of insurance established under the previous number.
9.1. A non-conformity process will be created whenever, at any stage of the execution of the Purchase Order, anomalies, failures, errors, deficiencies, poor or improper packaging for the transportation used, malfunctions and/or incompatibilities with the technical specifications and standards in force are found.
9.2. The non-conformity process will be properly registered by ADIRA and sent to the Supplier. These non-conformities shall be answered in proper form, within 48hours, with their corrective actions. The non-conformities registered have impact on Suppliers Assessment implemented in ADIRA and in the economic group in which ADIRA belongs (Sonae Capital). If the supplier fails to find a proper solution for the non-conformity, the sending of new Purchase Orders to the Supplier may be interrupted.
9.3. In case of non-conforming material, it is not suspended the obligation to comply with the Purchase Order on all previously agreed terms.
9.4. ADIRA may reject non-conforming materials, equipment or services, subjecting the Supplier to the penalties or annulment as provided for in sections 10 and 17 of these General Conditions, or the correspondents established in the Purchase Order, Particular Conditions of Order and/or Contract.
10.1. ADIRA reserves the right to, if the Supplier, for reasons attributable to him, do not respect the deadlines established in the Purchase Order, apply the following penalties, without prejudice to the compensation for the damage in excess and the right to cancel the Purchase Order:
10.1.1. If the Supplier has not completed its obligations within the deadlines, it will be subject to a penalty of 0,5% (half percent) for each calendar day of delay, calculated on the value of the position of the Purchase Order belonging to the delayed goods;
10.1.2. If the delay in question exceeds 10 (ten) calendar days, the penalty to apply from the end of that deadline will be raised to 1% (one percent), calculated in the same terms as the previous point, up to a maximum of 10% (ten percent).
10.2. ADIRA reserves the right to deduce the amount of penalties in the payment of the Purchase Order.
10.3. If the Supplier is unable to demonstrate that it is in a position to correct the materials and equipment with non-conformity in time, these may be rejected totally or in part, incurring the Supplier to compensate ADIRA for all resulting damage and losses.
10.4. The provisions of this clause do not preclude ADIRA’s right to compensation, reserving ADIRA the right to debit to the Supplier all costs incurred due to the non-conformity of goods and/or service, including any loss, damage, repair or substitution costs, transportation costs, production stop and compensations paid to third parties because of such production stops and delays on the delivery to the final Client.
10.5. The application of the expected penalties in point 10.1 do not relieve the Supplier from the obligation to comply with the contract.
11. BRANDS, PATENTS, MODELS
11.1. The Supplier warrants its activities in execution of the Purchase Order will not imply infringement of any intellectual property rights of thirds parties.
11.2. The Supplier undertakes to indemnify ADIRA for any damage, losses or costs arising from actions or procedures caused from the utilization, possession or sell the materials or equipment supplied in execution of the Purchase Order and also from violation of intellectual property rights including the expenses that result from those actions and/or procedures.
11.3. The Supplier shall be solely responsible for the obligations resulting from the direct or indirect utilization of know-how, patents, utility models, drawings, including those relating to obtaining the necessary authorizations from the respective owners and those inherent in the payment of the corresponding charges. The Supplier will be held solely liable in the event of any resulting legal question, as well as any claim arising from the violation or alleged violation of those rights.
11.4. The Supplier may not invoke any personal rights with respect to intellectual property rights in order to prevent the fulfillment of the obligations arising from the Purchase Order.
12. PROPERTY OF TECHNICAL MATERIAL
12.1. Any material trusted to the Supplier by ADIRA with the purpose of studying and executing a Purchase Order (i.e. drawings, tools, molds, equipment, raw materials, etc.) will invest the Supplier in the legal obligations of the depositary of such materials. The Supplier is required to return those materials as received and as soon as requested.
12.2. The Supplier is responsible for loss or damage to items provided by ADIRA. The Supplier will support all replacement costs for lost or damaged materials and all the injury caused to ADIRA for such loss/damage.
12.3. All the execution projects, written or drawn parts, final screens, draws, software, studies, reports or any other intellectual creations made by the Supplier under and a Purchase Order, as well as all its intellectual properties rights will be ADIRA’s property for all the effects and may be freely modified by ADIRA.
13.1. The Supplier commits not to disclose to third parties and not to use, for own benefit or third parties benefit, any information transmitted to the Supplier by ADIRA and not known to the general public, namely, the information contained in these General Conditions or in other documents and/or contacts made under a Purchase Order.
13.2. The obligation of confidentiality continues even after the termination or fulfillment of a Purchase Order.
14. PROVISIONAL AND DEFINITIVE RECEPTION
14.1. The provisional reception of the supplies will be made by ADIRA only after the cumulative verification of the following requirements:
14.1.1. After the inspection by ADIRA or its nominee, all supplies subject to the Purchase Order have been satisfactorily completed;
14.1.2. The delivery by the Supplier of all documents expected on the Purchase Order and all attachments, duly approved by ADIRA.
14.2. If ADIRA points out any deficiency or omission that prevent the Provisional Reception, ADIRA will immediately notify the Supplier, who is obligated to fully repair the deficiencies indicated to its total responsibility and expense, within a period to be agreed between both parts.
14.3. At the end of the warranty period, the Final Reception will be made if no non-conformities are detected and any withholdings or warranties released.
15.1. The Supplier undertakes to provide a minimum warranty period of 24 (twenty four) months, unless otherwise expressly provided on the Purchase Order, Particular Conditions of Order and/or Contract, or in ADIRA’s written acceptance of the Supplier proposal.
15.2. Durante o período de garantia, o Fornecedor compromete-se a corrigir, reparar ou substituir, por sua conta e risco, todos os materiais, equipamentos ou serviços, ou a parte deles que se mostrar necessário, que apresentem erros, falhas, deficiências, avarias e/ou incompatibilidades com quaisquer especificações Técnicas ou Normas e regras legais em vigor, disponibilizando à ADIRA um relatório detalhado de ocorrência, suportando todos os custos indirectos com despesas de transporte, mão-de-obra, deslocações, estadia, refeições, etc..
15.3. The repair or substitution of the defective elements implies the start of a new warranty period. If ADIRA deems it necessary, the new materials will also be subject of the Provisional and Definitive Reception process to which the previous non-conforming goods were.
15.4. ADIRA may order the necessary repairs, modifications or replacements at Supplier’s risk if the Supplier’s response is inadequate or out of time, by notifying the Supplier to pay them or, alternatively, discounting the inherent charges on payments to the Supplier or making use of any withholdings or warranties provided.
16. PAYMENT CONDITIONS
16.1. The due date of the invoices, previously agreed with the Supplier, counts from the date of reception of the invoices at ADIRA’s premises. The payment is made under analysis and review of the invoice.
16.2. The Payment Conditions of the supplies are indicated in the Purchase Order. Payment Terms previously specified in the context of a business relationship between ADIRA and the Supplier may also be used if it is expressly referenced in written in the Purchase Order, Particular Conditions of Order and/or Contract.
16.3. The full fulfillment of the supply obligations, the eventual availability of documents, the delivery of any financial warranties and the fulfillment of remaining material contractual obligations, under the exact terms and conditions set forth in the Purchase Order, Particular Conditions of Order and/or Contract, is an indispensable condition for the payment of the invoices.
16.4. Any claim, sanction or legal penalty against ADIRA by its customers, relative to the scope of the Purchase Order, may lead to withholding of payments until:
16.4.1. The Supplier assumes those claims, sanctions or legal procedures;
16.4.2. The process or legal procedure is concluded without consequence or obligation to ADIRA;
16.4.3. The Supplier has fulfilled all the obligations under the Purchase Order.
17.1. The Purchase Order may be terminated by ADIRA at any moment and without liability or financial charge in any of the following cases:
17.1.1. Se os fornecimentos realizados não estiverem de acordo com as especificações das presentes Condições Gerais de Compra, da Ordem de Compra, Condições Particulares de Encomenda, Contrato e/ou restantes documentos contratuais;
17.1.2. If the materials delivered do not conform to the samples or specifications submitted by the Supplier for ADIRA approval;
17.1.3. If the delivery times set forth in the Purchase Order are not met by the Supplier without justifiable reason and accepted by ADIRA;
17.1.4. If there are reasonable doubts as to the rights of the Supplier over the materials, equipment or services provided or the rights to patents, trademarks, models and drawings;
17.1.5. If it occurs the bankruptcy, insolvency or Special Revitalization Process, or their request to the competent Entities;
17.1.6. If the Supplier violated any clause and conditions of the Purchase Order or General Conditions;
17.1.7. In any other case of resolution provided by Law.
17.2. If the resolution covers only part of the Purchase Order, ADIRA will only be responsible for the payment of compliant, accepted and delivered materials, equipment or services without the Supplier having any right to compensation for the party affected by the resolution. Additionally, all costs involved will be borne by the Supplier, given the possible need for removal of elements.
17.3. Immediately after the communication of resolution, within a period to be agreed, the Supplier will return all materials entrusted by ADIRA, as well as all materials, studies, drawings, tools, molds, etc., of relevance to the fulfilment of the supplies in progress, subject to the delay penalties exposed in point 10.1.1.
17.4. ADIRA shall have the right to finish the contract if the Final Client suspends or suppresses the order. In this case, ADIRA shall pay to the Supplier the compliant, accepted and already delivered goods.
17.5. All payments received by the Supplier for materials, equipment or services with non-conformity shall be refunded to ADIRA and the Supplier undertakes to refund within 15 (fifteen) days from the resolution date.
17.6. ADIRA has the right to be compensated for any damage caused by the resolution due to the Supplier’s failure to comply, and reserves the right to trigger, at the resolution date, any bank guarantees on its behalf.
18. JOINTLY LIABILITY, FINES AND SUPPLIERS´ LABOR DEBTS
18.1. Whenever ADIRA, ADIRA’s directors, employees, as well as the companies that belongs to the same economic Group as ADIRA, are noticed of any procedure to comply with the jointly liability provided in art. 551 of the Portuguese Labor Code and in the nº 5 of the article 16 of Law 102/2009 of 10 September, the Supplier shall be required to solve the situation and to provide evidence of that to ADIRA. In the event that the Supplier decides to appeal of that notice, the Supplier must issue a bank guarantee in ADIRA benefit “on first demand”, within a 30 (thirty) days counting from the data of the notice, for the amount and to guarantee the payment of the amount claimed administratively or judicially, valid until the final decision (including the appeal to superior courts).
18.2. The bank guarantee must be forced by ADIRA in the event that the company, its directors, employees, as well as the companies of the same economic Group are mandatory to pay any credit or fine resulting from the unsuccessful use of these judicial or administrative means.
18.3. The Supplier undertakes to provide a regularized contributory statement from Social Security Institute, I.P. to ADIRA, as well as a certificate of tax status regularized with the tax office, if requested. The failure by the Supplier to comply with the obligation to provide a bank guarantee explained in point 18.1, as well as the default of the obligation explained in point 18.3, will give ADIRA the right to immediately claim a compensation of 1% of the contract value for each day of delay and as a penalty clause, without prejudice of the claim of other damages that the non-compliance may cause, being this clause valid even after the end of the present contract.
19. LEI APLICÁVEL E REGULAÇÃO DE LITÍGIOS
19.1. As presentes Condições Gerais de Compra, a Ordem de Compra, as Condições Particulares de Encomenda e/ou o Contrato regem-se em todos os seus aspectos pela Legislação vigente no ordenamento jurídico português.
19.2. Para a resolução de quaisquer litígios emergentes de uma Ordem de Compra, designadamente quanto à sua interpretação, aplicação, validade, execução, cumprimentos e seu termo, as Partes atribuem competência exclusiva ao Tribunal Judicial da Comarca da Maia.