GENERAL CONDITIONS FOR THE SUPPLY OF
GOODS TO TELEFONICA, Corp. AND
COMPANIES OF ITS GROUP
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2009
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MCT.NI.003
GENERAL CONDITIONS FOR THE SUPPLY OF
GOODS TO TELEFONICA, Corp. AND
COMPANIES OF ITS GROUP
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INDEX
1. APPLICATION AREA AND INTERVENYING PARTIES
1.1. APPLICATION AREA
1.2. INTERVENYING PARTIES
2. PURCHASING REQUESTS
3. OFFERS
3.1. - REQUIREMENTS
3.2. - OFFER PRICES
3.3. - GUARANTY OF THE GOOD
4. CONTRACT FORMALIZATION
5. PERSONAL GUARANTY
6. SUPPLY STANDARDS
6.1. PROGRAMS, DELIVERY DATE AND PENALIZATIONS
6.2. PACKAGE, PACKAGING OR CONDITIONING OF GOODS FOR THEIR DISTRIBUTION,
TRANSPORT AND STORAGE
6.3. PLACE OF DELIVERY
6.4. GOODS DELIVERY
6.5. QUALITY
6.5.1. - GENERAL CONSIDERATIONS
6.5.2. – ACTING PROCEDURES
6.5.3. - COSTS
6.6. RISKS
6.7. RESIDUES MANAGEMENT OF ELECTRIC AND ELECTRONIC DEVICES
7. SUBCONTRACTS
8. LICENSES, PERMITS AND PUBLICITY OF THE CONTRACT
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9. CONFIDENTIALITY AND INDUSTRIAL AND INTELLECTUAL PROPERTY
10. SOCIAL AND LABOUR OBLIGATIONS
11. INVOICING AND PAYMENTS
11.1. DOCUMENTATION
11.2. REQUIREMENTS FOR INVOICING
11.3. INVOICE REGULATION BY PRICE REVISION
11.4. PAYMENT
12. UTILIZATION OF ELECTRONIC COMMERCE TOOLS
13. DISSOLUTION OF THE CONTRACT
14. MODIFICATION OF THE CONTRACT
15. - JURISDICTIONAL PRIVELEGE
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1. APLICATION AREA AND INTERVENYING PARTIES
1.1. APLICATION AREA
This document gathers the general standards that Telefónica Corp. and its
group’s companies, in ahead Telefónica Group, will impose for the acquisition
and supply of goods and, eventually, for its installation since July 1st 1999 and will
be valid until they are replaced by subsequent ones.
Despite the previous, the PARTICULAR SUPPLY CONDITIONS of a specific
purchase will prevail over these GENERAL CONDITIONS in the clauses where
there may be discrepancy.
1.2. INTERVINYING PARTIES
Telefónica Group:
To these effects, Telefónica Group is understood as any entity where Telefónica
Corp., either directly or through another society of the Group:
a) Possesses over 50% of the share capital.
b) Has the faculty of appointing or dismissing the majority of the members of the
administrative body, or can obtain the majority of the votes by virtue of the
agreements reached with other partners.
c) Holds management control that, as a result of rights, agreements or other means,
confers the possibility of exercising a decisive influence on the company’s
activities.
Supplier:
Supplier is understood as a natural or legal entity that, lawfully established, in virtue
of the constituted Contract as indicated in section 4, assumes towards the
Telefónica Group, all the rights and obligations resulting from the contract.
Unless otherwise agreed, when two or more natural or legal entities sign a contract
with the Telefónica Group, they will share the obligations independently from the
possible signed agreements among themselves.
The supplier must not be in any Bankruptcy, Suspension of Payments, nor
Insolvency Proceedings records; executive proceedings may have not been urged
against him/it or decreed preventive Embargos or other caution measures that make
clear financial difficulties to attend to the normal fulfillment of its obligations.
The Supplier will be considered to be incurred in the proceedings above, when they
occur in the Parent Company, in other company of the same company group, or in
any of the companies union or association in which the Supplier owns part, or in
some of its suppliers or Subcontractors with an important assignment in the
fulfillment of the contracts included in the application area of this present document.
If some of these circumstances occurred during the contracting relation, it would be
a reason for dissolving of the contract.
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2. PURCHASING REQUESTS
The Telefónica Group companies will determine in the PETICIONES DE OFERTAS the
PARTICULAR SUPPLY CONDITIONS or complementary requirements to this GENERAL
CONDITIONS.
When necessary, the (technical, quality, packaging, shipping, etc.) SPECIFICATIONS will be
turned in together with the PETICION DE FOERTAS and will be part of the PARTICULAR
SUPPLY CONDITIONS.
When in the PARTICULAR SUPPLY CONDITIONS is indicated that the good needs
TECHNICAL QUALIFICATION, the supplier commits himself to solicit it and obtain it in
accordance with the valid Rules in the respective Telefónica Group Company, and will be
responsible for the respective costs, if specified in the indicated Rules.
3. OFFERS
3.1 REQUIREMENTS
The presentation of offers by the Supplier’s side does not suppose any contracting
obligation from the Telefónica Group’s side.
The offers shall be valid at least for:
• 3 months when the destination of the goods is Spain or Chile,
• 2 months when the destination of the goods is Peru,
• the time specified in the corresponding quotation table, when the destination
of the goods is Argentina,
• 1 month when the destination of the goods is Brazil.
The offered goods shall correspond to the requested characteristics. If variations in the
requested characteristics existed, they shall be explicitly detailed in the offer.
In all cases, the Telefónica Group Companies, reserve the right to reject the offers that
in some of their parts do not abide to what the PARTICULAR SUPPLY CONDITIONS
define, which does not give to the Supplier the right of complaint nor indemnification.
The offer of goods to the Telefónica Group entails from the Supplier’s side:
a) A spare parts manufacturing warranty for the period of time established in the
PARTICULAR SUPPLY CONDITIONS and, if not established, for five years since the
last supply of the good, if the unit price of the good is less than 60 Euros, or its
equivalent in USD, and for seven years if the good exceeds the mentioned price.
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b) The responsibilities for the repair or, eventually, for the replacement, during the
period indicated in point a)without additional expenses over the price of the repair, and
will have to carry it out in the term established in the PARTICULAR CONDITIONS.
c) The enclosure of the documentation necessary for the installation, operation,
maintenance and other indispensable functionalities, in Spanish for the Telefónica Group
Companies located in Spanish speaking countries and in Portuguese for the ones
located in Brazil or, in any case, in the language that may be indicated in the
PARTICULAR CONDITIONS. The unitary prices for the complementary copies or
additional information will be detailed, if appropriate. In any case, the supplier will deliver
the documentation in its original language, without any costs for the Telefónica Group
Companies.
d) If the offered good eventually needed the training of the Telefónica Group
Companies’ personnel for its installation, operation or maintenance, the Supplier will
detail in its offer the price of the necessary courses or training means, which will be
provided in Spanish. If the supply is in Brazil, the language will be Portuguese.
e) If the Telefónica Group Companies specify it in this way in the PARTICULAR
SUPPLY CONDITIONS, the responsibility for the elimination, collection and recycling of
waste and of non-utilized goods, originated both by disassembling and by stocking,
when usage is non-viable for the Telefónica Group, always considering the applicable
Rules related to the protection of the environment and recycling.
f) When required in the PARTICULAR SUPPLY CONDITIONS, the specification of the
manufacturing or supplying capacity that, with its offer, makes available to the Telefónica
Group.
3.2. PRICES OF THE OFFER
When elaborating the price of the offer, the Supplier must take into account, that the
Telefónica Group Companies in order to guarantee their suppliances, reserve the right to
carry out a partial awarding; in these cases, the sections in which the supply volumes
could be divided will be mentioned, as an indication, in the PARTICULAR SUPPLY
CONDITIONS.
The price of the offer will be specified according to the following scheme:
- Origin or manufacturer price (EXWORKS), taking into account the payment
conditions (see section 11.4), including the costs of containers and packaging (see
section 6.2).
- The cost of the transports and insurance to the destination indicated in the
PARTICULAR SUPPLY CONDITIONS (see sections 6.2 y 6.6)
- Taxes: the itemized and total value of the taxes, fee, contributions, customs duty,
security contribution and other national, state, regional, departmental, provincial or
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municipal burdens, that could affect the purchase or contract and any of the
operations or acts they involve.
Exceptionally, in the PARTICULAR CONDITIONS it may be possible to establish price
revision.
3.3. WARRANT OF THE GOOD
The good, from its delivery date to the Telefónica Group, will have a guaranty period not
shorter than 12 months, except when the terms in the PARTICULAR SUPPLY
CONDITIONS are requested otherwise.
4. FORMALIZATION OF THE CONTRACT
The SUPPLY CONTRACT of goods will be perfected when the corresponding Telefónica
Group Company sends to the Supplier an AWARDING LETTER, which could be total or
partial in regard to the Supplier’s offer.
In this case, the SUPPLY CONTRACT is constituted by the mentioned AWARDING
LETTER, the presented OFFER, these GENERAL CONDITIONS FOR THE SUPPLY OF
GOODS, the PARTICULAR CONDITIONS if there were any, the respective REQUEST of
delivery, as well as any other DOCUMENT that results on rights and obligations for the
parties.
If the nature or cost of the supply require it, the corresponding Telefónica Group Company
may replace the mentioned AWARDING LETTER by a CONTRACT, which the Supplier
shall sign within 15 days after the date he is informed that its presence is necessary for
such purpose; it is a necessary condition, if not established otherwise, that the definitive
personal guaranty mentioned in section 5 in these GENERAL CONDITIONS is constituted
in advance.
The contracts signed by the Telefónica Group, which are subject of the application area of
this present document, will be governed in harmony with the enumeration and order of
priority established as follows:
First: By the own/proper stipulations of the Contract, if it is formalized like such.
Second: By the corresponding List of Particular Conditions.
Third: By the related Technical, Commercial, and Economic Indications, which will be
attached as Annexes and will be signed by both contracting parties.
Forth:
By this present document.
Fifth: By the offer presented by the Supplier, eventually, including its modifications.
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Sixth: By the Private Judicial Legislation, in everything where the parties did not clearly
agree on in the previously mentioned documents.
Unless exists express agreement against, the presentation of the corresponding offer by
the Supplier, implies the acceptation of the conditions established in this present document
and, eventually, of the PARTICULAR CONDITIONS or related Technical, Commercial and
Economic Indications.
The supplier shall not claim not having full knowledge of the mentioned documents,
considered as part of the Contract, or of any other supra-national, state, regional or local
applicable rules to justify the breach of its obligations,.
The offers that will not be answered in the term indicated in the PARTICULAR
CONDITIONS or, if not indicated, in a 3-months period, will be considered rejected.
5. PERSONAL GUARANTY
When established in the PARTICULAR SUPPLY CONDITIONS, the Supplier, by signing the
contract, will constitute a definitive Deposit, through bank Guarantee or Insurance Company
with prestige, for the amount determined in the corresponding PARTICULAR CONDITIONS,
in order to guarantee all the obligations resulting from the contract and, among them, the
payment of the penalizations that cannot be deducted from the amounts that shall be paid to
the Telefónica Group, from the repairs or replacements carried out at the Supplier’s
expense by virtue of its guaranty obligations, from the indemnification for damages caused
due to any breach of the Contract or by delay in its fulfillment, and from the indemnification of
damages and harms that, in the execution of the contract, may be caused to third parties and
claimed or demanded to the Group by them.
Rendering the Deposit does not suppose that the responsibilities demanded to the Supplier
due to the Contract are limited to its amount or validity period, and it is only a mean to
facilitate their effectiveness.
The Supplier will loose the amount of the established deposit supposing that the contract is
dissolved, as a consequence of the non-fulfillment of the obligations assumed in the Contract
by him.
The mentioned guaranties will be established according to the model that will be annexed to
the model of proposal of this offer and shall be signed by the competent Unit of the
corresponding Telefónica Group Company.
The Telefónica Group Companies may demand:
-
In the contracts where the value exceeds 10% of the Supplier’s liquid assets, a bank
guarantee for the same amount and period of validity of the contract.
In the supplies of capital goods, a guarantee equivalent to 15% of the good’s total
price, as a guaranty for the level of efficiency demanded in the PARTICULAR
SUPPLY CONDITIONS.
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6. SUPPLY CONDITIONS
6.1. PROGRAMMING, DELIVERY PERIOD A PENALIZATIONS
The delivery of goods, together with the installations or related works contemplated in
the PARTICULAR SUPPLY CONDITIONS, will take place on the dates agreed by the
parties, in the way established in the mentioned PARTICULAR CONDITIONS or in the
DELIVERY OF ORDERS PROGRAM indicated to the Supplier.
Unless the PARTICULAR SUPPLY CONDITIONS establish different penalizations, the
penalizations indicated below/as follows will be applied.
The delay in the delivery of the supplied goods in the terms defined in the condition 6.4,
will give rise to the application of an automatic penalization, on each INVOICE
relative/related to the goods delivered with delay, of 1% of the value of the goods not
delivered on the agreed day for each entire week of delay, calculated as the difference
between the day when the real delivery was carried out and the day planned for the
supply. In any case, the penalization will not exceed 10% of the value of the goods not
supplied on the agreed day.
In case of delay in/on the supply of goods higher than 4 weeks or in case of three
delays in the same trimester, the Telefónica Group Companies may dissolve the
contract totally or partially and, in both cases, execute the Definitive Personal
Warranty, if there was any, and claim for damages and harms that could have
originated to them due to this reason for an amount higher than the guarantied.
The penalization above will not apply if the delay was due to:
-
-
Reasons of force majeure, only when the causing fact is communicated in writing
at least 8 days before the delivery date and the it happened in before/advance to
this date, or
acts or omissions/negligence from the Telefónica Group Company side.
In case of delay, the prices of the good will be the ones in force on the planned delivery
date, and no revision of them will be accepted
The delay on the devolution of goods sent for repair will give rise to the application, on
each INVOICE of/for repair of goods delivered with delay, of an automatic penalization
of 10% of the value of the repair of the good not delivered on the agreed day, for each
entire week of delay, calculated as the difference between the day when the delivery is
carried out and the planned date, with a 40% limit.
The resulting penalizations will be subject to an independent INVOICE and its accrual
date will coincide with the planned and not fulfilled delivery date. The amounting of the
mentioned INVOICE may be subject of compensation with other pending INVOICES
from the same Supplier.
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6.2. PACKAGE, PACKAGING OR CONDITIONING OF THE GOODS FOR THEIR
DISTRIBUTION, TRANSPORT AND STORAGE
The goods will be delivered according to the packaging conditions established in the
PARTICULAR SUPPLY CONDITIONS, provided with the PETITION OF OFFERS. If
specific packaging conditions do not exist, they shall have the appropriate protection in
order to avoid damage in the transportation or later storage and the appropriate labels
for its identification at any moments.
The cost of the package, packaging or conditioning of the goods for its distribution,
storage and transport shall be included in the price of the good (as indicated in 3.2).
However, if the package, packaging or conditioning of the goods can be returned or
used again (big boxes, wooden or iron reels, etc.), the cost may be considered
separately, if requested by the Telefónica Group Companies in the PARTICULAR
CONDITIONS.
6.3. PLACE OF DELIVERY
The goods, subject of the supply, will be delivered in/to the place indicated in the
PARTICULAR CONDITIONS.
6.4. DELIVERY OF THE GOODS
The delivery will be carried out once fulfilled the previous quantity and quality
inspection, or inspection of acceptation without objections about the installed good after
the tests of real, carried out by the corresponding Telefónica Group Company.
The Supplier must issue the corresponding NOTE OF DELIVERY that will have to be
with the dispatch of the goods.
Once the delivery is carried out in the established way, time and place, the goods will
be under the property of the corresponding Telefónica Group Company.
6.5. QUALITY
6.5.1. GENERAL CONSIDERATIONS
The fulfillment of the specifications of the products is a responsibility nontransferable to third parties. The acceptation of the goods from the Telefónica
Group side does not interrupt the responsibilities that the Supplier has in regard
to the guaranty or other responsibilities resulting from faulty products that could
be detected after the realization of the inspection, or from other hidden defects
of any nature.
The Supplier shall have at disposition a quality procedure, as well as the
organization and the means that allow him to guarantee the characteristics of
the product, carry out the analysis of damage and the guaranty control, to the
corresponding Telefónica Group Company, in its facilities or in the destination
country or countries of the goods.
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Alternatively, the Supplier may have at disposition the mentioned organization
and means, in the destination country through the collaboration of a third party.
The quality assurance in the moment of the reception of the goods may take
place in any country agreed on with the Supplier taking into account common
interests.
6.5.2. VERIFICATION
Each Telefónica Group Company will indicate the type of quality verification in
the PARTICULAR CONDITIONS. He may select from:
a) Lot inspection of the supplied goods by sampling, following the
standards UNE 66020, equivalent ISO or the resulting from MIL-STD
105D; in such case, the goods shall be at disposition of the Telefónica
Group Companies at least seven calendar days before the planned
day for delivery.
b)
If the supplier has a system for assuring quality, the Telefónica Group
Companies may decide to test it, in order to verify its suitability
according to the needs of the Group; if it is considered appropriate,
the verification will be done without lot inspection.
Each Telefónica Group Company may do this evaluation in
accordance with its valid standards for/in this regard, for instance the
CC.a0.010 “PROCEDURE FOR ASSURING THE QUALITY OF
INDUSTRIAL PRODUCTS” and CC.a0.011 “PROCEDURE FOR THE
GLOBAL EVALUATION OF SUPPLIERS” of Telefónica from Spain,
which are an adaptation to the Standards from the serie ISO900
c) To carry out the tests of equipment acceptance, once it is installed
and in real functioning, in harmony to what the PARTICULAR
SUPPLY CONDITIONS specify.
The quality control by lots will be carried out preferably in the Supplier’s
facilities, who commits itself to supply, in all cases, the necessary means to
carry out the Quality tests for this purpose.
If, due to lack of means, it is necessary to turn to a specialized laboratory, the
cost of the tests will be at the Supplier’s expense.
The Supplier will inform to the corresponding Telefónica Group Company the
availability of the lot of goods, at least seven days in advance from the
established delivery date (Section 6.1).
The Supplier will consider in its offer the possibility that some units of its goods
will be used for destructive tests in accordance with the standards that may
apply, and shall be replaced by him without any charges.
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As a consequence of these actions, the corresponding Telefónica Group
Company will extend the corresponding document of acceptation or rejection,
sealing, when appropriate, the DELIVERY NOTE issued by the Supplier .
If the results of the tests conduce to the rejection of the good, or to its repair, the
Supplier shall inspect the totality of the rejected lot and correct its defect when
possible, or eliminate the faulty units, when the correction is not possible. The
delay caused by the rejection of the good will be considered as a delay in the
delivery and what section 6.1 establishes will be applied.
According to the standards UNE 66 020, the Telefónica Group may dissolve the
supply if 10 consecutive lots of the same good remain in rigorous inspection, as
defined in the mentioned standards.
The minimum evaluation level that will be demanded to the Supplier may be
specified in the PARTICULAR SUPPLY CONDITIONS. If the Supplier does not
reach such level, it will have a period of time not longer than 3 months since the
date planned for the first delivery to obtain it.
If once elapsed this period of time, the Supplier has not reached the minimum
evaluation level established, or it is not kept during the time that the
manufacture and supply lasts, the Telefónica Group may decide to dissolve the
contract or to apply the control procedures that are established in the standards
for assuring quality of the corresponding Company.
The Telefónica Group reserves the right to verify the quality degree reached
with the frequency that it considers appropriate and in any phase of the
production process of the Supplier, keeping the manufacturing secrets that may
be affected.
6.5.3. COSTS
The inspection or evaluation of quality assurance as well as the second
inspections of products previously rejected, carried out by the Telefónica Group
Companies, either by lots, audits or supervisions by Product Line, from which
results that the products are not in harmony with the applicable specifications,
will be charged to the Supplier by the corresponding Telefónica Group
Company, or by the Quality Assurance Entity that may had carried it out. The
applicable fares will be 60 Euros or 65 USD an hour, or 500 Euros/day (545
USD/day), revised yearly. The expenses for displacement and stay will be also
charged, unless the PARTICULAR CONDITIONS establish it otherwise.
If the Supplier did not have the facilities or means for the inspection in the
country or countries of destination of the goods, it could select from:
-
Contracting them in the destination country, with a third party, or
-
Agree to pay for the costs that the Telefónica Group Company would
have, as a result of the displacement of its personnel to the Supplier’s
facilities, for example, traveling expenses, translator if needed, etc.
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6.6. RISKS
Insurance for goods:
In connection with services or activities involving goods owned by Grupo Telefónica
companies and/or its subsidiaries and/or participated companies that are located at
the supplier’s location or when the supplier is the depositary for such goods, the
supplier will be obligated to contract an All-Risk Material Damage insurance policy
to cover any possible damage to such goods, including damage arising from acts of
terrorism, theft, robbery or sabotage, as well as those derived from the relocation of
assets and temporary storage incurred by the supplier.
The policy/policies will have a maximum indemnity limit per loss that will not be lower
than the largest exposure registered throughout the contract term.
Regarding transportation insurance, the maximum indemnity limit per loss will be that
which corresponds to the volume of the largest shipment per transport unit.
Coverage for such relocation can also be made available through an All-Risk
Transportation Insurance policy.
The policy/policies will compulsorily list, as an Additional Insured, the relevant
Company from Grupo Telefónica and/or its subsidiaries and/or participated
companies.
Liability Insurance:
It will be compulsory to contract or have in place a Liability Insurance policy whose
insured is the supplier, in order to cover any damage caused or claimed to the Grupo
Telefónica company and/or its subsidiaries and/or participated companies, which
shall include general public liability, professional liability, liability for claims from
employees to the employer and liability for products or services, with a maximum
indemnity limit that is in line with the sales volume and scope of the services, which
will be, in no case, lower than 5,000,000 euros.
The policy/policies will compulsorily list, as an Additional Insured, the relevant
Company from Grupo Telefónica and/or its subsidiaries and/or participated
companies.
The mentioned policies or copies of such shall be compulsorily delivered to the
companies of Grupo Telefónica and must be in force and effective throughout the
term of the agreement and/ or service with the supplier, and the maximum
indemnity limits will never be lower than those requested.
Maximum deductibles not covered by the insurer, as set out in the required
policies, cannot exceed, under any circumstances, 20,000 euros or their
equivalent value in the currency used in the contract.
Non-compliance with the full force of the existence, contracting or maintenance
of the policies, the requested coverage or the maximum indemnity limits of
such shall entail automatic indemnity for damages on the part of the supplier to
the relevant company from Grupo Telefónica, its subsidiaries and/or
participated companies.
Compliance with these requirements does not exonerate the supplier of any
liability not covered under the required insurance contracts.
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6.7. RESIDUES MANAGEMENT OF ELECTRIC AND ELECTRONIC DEVICES
The supplier considers and declares itself the producer of the good, with the object of
the application of the Spanish Royal Order 208/2005 of February 25th, about electric
and electronic devices and the management of their residues.
7.
SUBCONTRATACTING
If the Supplier desires to subcontract both, the installation activities and the manufacturing
operations, a previous authorization in writing from the corresponding Telefónica Group
Company will be necessary.
As well, the Supplier will have to prove that the Subcontracting company fulfills the
technical conditions necessary for carrying out the work and that its employees have been
properly instructed on the Security and Hygiene Standards that have to applied in each
case.
The Supplier will have the same responsibilities both for the works or goods it carries out by
itself, and for the subcontracted or acquired to third parties, and will share the responsibility
for the Subcontractor’s activity.
The Telefónica Group reserves the right to verify the Subcontractor’s facilities and quality
guaranty system, applying what it is indicated in section 6.5.
8.
LICENSES, PERMITS Y PUBLICITY OF THE CONTRACT
The Supplier and, eventually, the Subcontractor are responsible for requesting, processing,
managing and obtaining, on its own and at its expense, all the necessary permits, licenses,
and authorizations for the proper execution of the contract. It will also be on its own and at
its expense the obtainment of import licenses, duty rights or any other appropriate and
necessary expenses.
In any case, the Supplier and, eventually, the Subcontractor will respond for the Telefónica
Group for the claims that could be prosecuted against the Group, as a consequence of lack
of the necessary permits, licenses and authorizations, or from not paying the mentioned
rights and expenses from its side.
The supplier is obliged to pay the expenses for the formalization of the contract, supposing
that it will have to be elevated to the public.
9.
CONFIDENCIALITY AND INDUSTRIAL AND INTELLECTUAL PROPERTY
9.1.
Any information or material provided by the Telefónica Group, related to the
execution of the Contracts that are subject to the application area of this present
document, will be considered as confidential and will be treated as such by the
Supplier, representatives, hired personnel to this effect and, eventually, by the
subcontractor. The Supplier commits itself to enforce el respect for this
confidentiality, by using the same security dispositions, measures and procedures
used to protect its own confidential documentation, according to what the Industrial,
Intellectual Property and Personal data protection Legislation establishes.
THE PROPERTY OF TELEFONICA S.A.
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9.2.
Independently of the extinction of the Contract, subject to the application area of this
present document, the commitment of confidentiality will remain for an unlimited
amount of time or until that information is of public domain.
9.3.
The developments and models that, as of the established specification by the
Telefónica Group, result from specific awards or from any introduction, modification
or suppression posterior to the award of the supply, will be considered its property,
because the contributions that the awardee may do will be understood to be valued
and included in the offer.
9.4.
The Supplier or awardee will be responsible for and will have to indemnify the
Telefónica Group for all the damages that may origin from providing to third parties
the information indicated in the paragraphs above. The Supplier shall not request in
the Industrial or Intellectual Property Registers to record on its name the
documentation, developments or models that are property of any of the Telefónica
Group Companies, nor shall provide the property of a third party.
9.5.
When acquiring goods, which are not subject to specifications by any Telefónica
Group Company, the Supplier will guarantee that the acquisition and subsequent
usage of the mentioned goods, subject of the supply, it is not a patent or copyright
transgressing action, nor transgresses any other modality of Intellectual or Industrial
Property of a third party.
9.6.
If any Telefónica Group Company is accused for violating rights of Intellectual or
Industrial Property of third parties because of acquiring or utilizing the goods
referred to in the point above (9.5), the Supplier will be obliged to take charge of all
and each one of the costs that may origin due to civil or penal defense of the
Telefónica Group Company, as well as of all amounts that the Telefónica Group
Company see itself obliged to pay for such reason. All this, in spite of the right that
the Telefónica Group Company has to claim the corresponding indemnification for
the damages that may suffer for such reason.
10. SOCIAL AND LABOUR OBLIGATIONS
The Supplier and, eventually, the Subcontractor shall have the necessary mechanisms to
guarantee the non existence of child labour in their activity.
The Supplier and, eventually, the Subcontractor, shall fulfill the legal dispositions valid at
each moment in labor matters, Social Security, Security, Hygiene and Health at work and
Environment; and specially, compromises to have the necessary mechanisms regarding
protection and prevention, just as to give the information and training about labour risks to
their own workers that may need it in order to provide the services. Also, the supplier
compromises to comply and make workers to comply too, with the preventive measures
that apply for each activity.
The Supplier and, eventually, the Subcontractor, exclusively assumes the role of employer
or manager towards the personnel it may employ in order to execute the Contract. To this
regards, the Telefónica Group keeps out of the relations between the Supplier and,
eventually, the Subcontractor and the mentioned personnel. The Supplier guarantees total
indemnity to the Telefónica Group for any responsibility that may result from the relations
with the supplier’s personnel and, eventually, with the Subcontractor.
The Supplier commits itself and obliges to fulfill exactly and directly as many obligations
and rights that may result from its position of employer or manager; the payment of salaries,
Social Security fees, occupational accidents, Labor Mutual Societies, etc. will be at its own
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expenses as well as any other social obligation imposed to the manager or employer by the
legislation in force at each moment. The supplier also commits to demand the
Subcontractor the fulfillment of these identical obligations towards its personnel.
The Supplier and, eventually, the Subcontractor is compelled to manage all the
environmental aspects that compound his activity under his legal and corporate
responsibility, complying at the same time, with all the obligations imposed by the Law and
adopting the environmental requisitions established by the company.
Nevertheless, if because of the Supplier the mentioned obligations failed to be fulfilled, and
its non-fulfillment results on some liability for the Telefónica Group, the Supplier shall
compensate for the amount of these liabilities, including any expenses or judicial costs that
the Telefónica Group defense may cause.
Telefonica Group reserves the right to review, by itself or through a third party, by means of
an audit process, the supplier fulfilment of the obligations before indicated.
11. INVOICING AND PAYMENT
11.1.
DOCUMENTATION
The Telefónica Group Companies may provide to the Supplier or contractor the
models of the forms or operative diskettes necessary for the confection of he
INVOCICES and for vouching the deliveries of the goods or the execution of works
or installations.
The payment of the invoices does not mean that the obligations of the Supplier are
fulfilled nor that the Telefónica Group renounces any right resulting from the
Contract.
11.2.
REQUIREMENTS FOR INVOICING
In order to invoice, the Supplier will have to fulfill the following requirements:
a)
b)
c)
d)
11.3.
The date of the INVOICE will be the same or posterior to the delivery date.
To complete an INVOICE for each program, destiny and request.
To provide all the data that required in the INVOICE.
To assume, when the circumstances require it and when the Telefónica Group
requests it, the computer procedures that may be established (e.g. the
procedures based on the Electronic commerce Platform ADQUIRA, Corp.),
carrying out all the necessary activities so that the invoices issued this way have
straight legal effectiveness.
STANDARDIZATION OF INVOICES FOR PRICE REVISION
The standardization of the invoices that may take place due to price revision will be
done yearly or, at the most, biannually, if the circumstances called for it and if it was
agreed in de forma singular.
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The standardization will be carried out with reference to the planned delivery date,
and not with reference to the date when the INVOICE was issued, if delays
attributable to the Supplier occurred.
11.4.
PAYMENT
The payment of the invoices will take place in the term indicated in the
PARTICULAR SUPPLY CONDITIONS, and if not indicated, in the term in the
Awarding Letter or Contract.
The term will run since the date of issue of the INVOICE, unless it is presented after
15 calendar days from its date of issue; in which case, the term of payment will start
on the date of presentation.
12. UTILIZATION OF ELECTRONIC COMMERCE TOOLS
In order to speed up the petition of offers, the presentation of offers, the formalization of
commitments (either by contract or awarding letter), the processing of requests or service
orders, the management of notes of delivery and acceptations, and the invoice activities,
both parties agree to utilize the computer procedures of the Electronic Commerce Platform
Adquira, Corp..
For this, if the parties did not previously do it, they will have to join to this platform, pay the
fixed and variable costs resulting from its relation to ADQUIRA and properly formalize the
mentioned relation through the corresponding contract or, eventually, including a modifying
addendum allowing the modification of a preexisting contract in case that it was necessary
due to the update of services, fees or any other modification.
Despite the previous, since these new procedures will be introduced progressively, the
parties agreed that the way of proceeding established in the present clause will be used in
the cases when Telefónica informs it to the supplier, in accordance to their disposition.
13. DISSOLUTION OF THE CONTRACT
13.1.
The CONTRACT, understood in the sense specified in section 4, may be dissolved
due to both the general reasons for dissolution of contracts established by the law,
and to the breach of the obligations established in these present GENERAL
SUPPLY CONDITIONS or the corresponding PARTICULAR CONDITIONS. The
only requirement will be to communicate it in written to the breaching party, which
shall pay the other party for the damages that such breach caused to it.
13.2.
It is expressly established that the total or partial dissolution of a CONTRACT due to
low quality (section 6.5), delay of deliveries (section 6.1) or due to lack of express
authorization for subcontracting (section 7), will entail the loss of the constituted
personal warranty or, in its absences, the obligation to pay an amount equal to 10%
of the amount of the dissolved CONTRACT, apart from the damages that the breach
may have caused, insofar as it exceeds such amount.
13.3.
Other reasons for dissolving the contract will be:
1. The death, retirement from the activity or unexpected incapacity of the
Supplier or the end or transformation of the legal person of the Supplier, in
such case, the Telefónica Group may demand the continuation of the contract
THE PROPERTY OF TELEFONICA S.A.
All rights reserved
GENERAL CONDITIONS FOR THE SUPPLY OF
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COMPANIES OF ITS GROUP
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with the new entity, which will be subrogated in all rights, obligations, and
responsibilities resulting from the contract.
2. Assumptions of Bankruptcy, Suspension of Payments, Insolvency
Proceedings as well as Executive Proceedings, Preventive Embargos or other
caution measures passed against the Supplier or, eventually, the
Subcontractor.
3. The mutual agreement of the parties.
13.4.
The dissolution of the contract will give rise to the appropriate liquidation, imposing,
if it was the case, the penalizations or amounts for damage that correspond in order
to determine the pertinent balance in favor of or against the Supplier.
The dissolution of the contract will always have to be notified to the other party in
writing, indicating the causes for the dissolution, the corresponding liquidation as
well as the indemnification for damages, indicating the period of time in which it
takes effect, as well as the legitimacy of the execution of the Deposit and the
imposition of penalizations, if appropriate.
14. MODIFICATION OF THE CONTRACT
If after awarding a contract subject to the application area of the present document, and as
a consequence of new needs or of causes unpredicted when the List of Particular
Conditions or related Technical and Commercial indications were signed, the necessity of
modifying its content aroused, these modifications will have to be accepted by the Supplier,
establishing, the Supplier and the Telefónica Group, a mutual agreement on the technical,
economic or terms adjustments that will be appropriate, which shall be gathered in the
corresponding Annex of the Contract and shall be adjusted to the standards established in
this document.
15. JURISDICTIONAL PRIVELEGE
Both parties voluntarily renounce the privilege that may correspond to them and will refer to
the jurisdiction of the Court of the Capital of the corresponding State for solving any
discrepancy on the execution, or interpretation of the contracts, unless other privilege is
established in the PARTICULAR CONDITIONS.
DECLARES TO KNOW AND ACCEPT THE PRESENTES CONDITIONS AND, TO
THIS EFFECT, SIGNS AND ENDORSE ALL THE PAGES OF THIS DOCUMENT.
IN............................, ...................OF 20......
BY THE SUPPLIER
(FIRM, NAME AND STAMP)
THE PROPERTY OF TELEFONICA S.A.
All rights reserved