General conditions of sale

GENERAL TERMS AND CONDITIONS OF SALE

1. SCOPE MATERIAL

These general terms and conditions of sale (the “Conditions”) shall apply to all offers and/or contracts (“Offer” and “Contract” in singular and “Offers” and “Contracts” in plural, respectively), in which GUZMAN POLYMERS, S.L.U. with tax identification number B40617037(the “Seller”), offers to the other party (the “Buyer”) its products (the “Products”) for sale, in which case, these shall constitute the object and shall be duly identified, described and characterised in the Contract or Offer. These Conditions shall also apply when the Seller, to fulfil its contractual obligations, should have to use of a subsidiary company or a company forming part of the group or to a third party; in this case, any of them shall be considered as the Seller and shall be fully bound by these Conditions. Buyer and Seller are hereinafter jointly referred to as the “Parties” or individually, each of them, as the “Party”. In any event, these Conditions shall be deemed to be an inseparable annex to the Contract or the Offer, or any addenda and annexes thereto, and shall apply in a complementary and subsidiary manner in all matters not provided for in the Contract or the Offer. The Contract or the Offer may in any event modify the covenants set out in these Conditions, in application to the special relationship between the Buyer and the Seller. Furthermore, acceptance of the order by the Seller shall in no way imply the acceptance of any terms or specifications requested by the Buyer in any of its communications with the Seller, nor shall it serve to modify or amend these Conditions. If any statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or communication, or even made orally by any of the Seller’s representatives or employees contravenes what is expressly stated in these Conditions, it shall be void and shall be deemed not to have been made or said, except as otherwise expressly agreed in writing by the Seller in the Offer or in the Contract.

2. THE OFFER AND THE ORDER

In absence of a Contract between the Parties, any written offer sent by the Seller to the Buyer under that title, containing: (i) a catalogue of Products and price information, (ii) available quantities of the Products and (iii) delivery times, shall be deemed to be an Offer. The Offer shall enable the Buyer to place orders for the Products (hereinafter the “Orders” or in the singular, the “Order”). However, the Offers do not per se imply the establishment of a contractual relationship between the Parties, the commencement of any commercial relationship – in any event – will requires the placing of an Order by the Buyer, and the acceptance thereof by the Seller in accordance with the provisions of the following Clause.

With the acceptance by the Seller of any Order sent by the Buyer to the Seller, it shall be understood that the Buyer tacitly accepts these Conditions.

3. ACCEPTANCE OF THE ORDER

The Order shall only be deemed to have been accepted by the Seller when the Seller gives written notice to the Buyer, even by telematic means including email or electronic messaging platforms (the “Order Acceptance”) setting out, where appropriate:

The special conditions of the transaction that have been accepted, and in particular, the total price to be paid and, where applicable, the method of payment.
The commencement of the manufacture of the Product, where the Product is specially manufactured for the Buyer.
The approximate dates of delivery or supply of the Products.
If the Seller is responsible for the transport of the Order and the place of delivery of the Products.
As well as any other conditions deemed necessary by the Seller.

When the Seller sends the Buyer the Order Acceptance, the Buyer may not request any modification of the Order, or cancellation of the Order prior to delivery, without the prior express written consent of the Seller. And, in any case, its modification or cancellation may require the payment, by the Buyer, of any expenses incurred by the Seller after the issue of the Order Acceptance. The Seller reserves the right not to forward the Order Acceptance and, therefore, the Order shall be deemed to be refused, in those cases in which the Buyer has outstanding obligations to fulfil, such as amounts to be paid.

4. PRICES AND INVOICES

Prices stated in quotations, estimates, or other documents issued by the Seller, other than the Contract or the Offer, are not binding for the Seller. And in any case, the final price to be paid by the Buyer shall be the price resulting from the Order Acceptance, except in those cases in which the invoice is issued in another currency, in which case, the final price to be paid shall be the price stated in the invoice. In this case, the price shall be calculated at the time of issuing the invoice by applying the currency rate to the price indicated in the Order Acceptance. Unless otherwise stated, the price stated in the Order Acceptance shall exclude any taxes relating to the sale of the Products (such as VAT), customs duties, tariffs or charges of any kind imposed by any governmental authority. Any taxes or charges which, under applicable law, are payable at the time of sale shall be added to the price on the invoice and shall be paid by the Buyer. The costs related to payment (such as bank charges incurred for the payment of the invoice amount and the costs incurred at the time of presentation of the shipping documents) shall be payable by the Buyer. In this case, the Seller will charge in the invoices the costs agreed in these Conditions, as well as those which the Seller may incur as a result of errors directly induced by incorrect instructions received from the Buyer or its representatives. The Buyer authorises the Seller to submit the invoices to him by ordinary or electronic mail, in accordance with the legislation in force at any given moment. Invoices shall be issued, unless otherwise agreed, in euros and for the total price of the Products purchased, including applicable taxes and charges.

5. PAYMENT OF INVOICES

Unless otherwise agreed, the Buyer shall pay all invoiced amounts within thirty (30) days from the date of the invoice by bank transfer to the account indicated for this purpose by the Seller in the Order Acceptance and/or on the invoice itself. As an exception to the above, the Buyer may agree with the Seller that payments shall be made in a different manner (either for one or more Orders or for a certain period), establishing a different form and/or a different term. In this case, the express acceptance of both Parties must be recorded in writing, indicating all the applicable conditions, and such annexed document shall be considered inseparable from the Contract or the Offer. When payment is instrumented by means of documentary credit, this shall be governed by the Uniform Customs and Practice for Documentary Credits in force of the International Chamber of Commerce. And, in any case, payment shall not be deemed to have been made until the corresponding amount has been paid into the Seller’s bank account. The Buyer may only compensate expenses when the Seller acknowledges and documents that the Buyer has a credit against the Buyer, and this credit is due, liquid and payable, and there is no retention or dispute promoted by third parties duly notified. In any case, the prior express written acceptance of the Seller shall be required in order to carry out the compensation. In no case shall the Buyer withhold payment of the amounts due and payable on the basis of any compensation or dispute with the Seller.

6. DELAY IN PAYMENT OF THE PRICE

In the event of delay in the payment of invoices, the Seller reserves the right to claim from the Buyer the default interest accrued, in application of article 7 of Law 3/2004 of 29th December, on the fight against default, which is the result of applying to the unpaid amounts the default interest rate published by the Bank of Spain. Likewise, article 8 of the same Lay will be applicable and the Seller may also request indemnification for the expenses derived from the collection of late payments, such as, for example, lawyers’ fees, as well as the expenses for the return of the bank bills, if any. In the event of late payment, the Seller shall also have the right to demand, alternatively:

Payment in advance for Orders placed after the confirmation of non-payment of the price; or
requesting the provision of a bank guarantee or other guarantee for the same amount; or
the opening of a confirmed and irrevocable letter of credit; o
withhold the Products not yet delivered.

Unless otherwise agreed, the application of any discounts on the prices agreed with the Buyer, shall be conditional upon the Buyer being up to date with its payment obligations to the Seller.

7. TRANSPORT AND RISK TRANSFER

If the delivery of the Products is to be made outside Spanish territory, unless otherwise agreed, the transport shall be assumed by the Buyer in accordance with INCOTERM EX WORKS (INCOTERMS 2020). On the other hand, if delivery of the Products is to be made within Spanish territory:

If it is agreed that the Seller shall arrange for the transport of the Products, the transfer of risk shall occur upon delivery of the Products to the Buyer at the place indicated in the Order Acceptance.
If it is agreed that the Buyer shall be responsible for the transport of the Products, the transfer of risk shall occur when the Products are placed at the Buyer’s disposal at the place indicated for delivery of the Products in the Order Acceptance.

In all cases where the Seller is not responsible for the transport, the Seller shall not be liable for any delay, loss or damage incurred during carriage.

8. SUPPLY OR DELIVERY OF ORDERS

The Seller shall use its best efforts to comply with the approximate delivery dates stated in the Order Acceptance. Notwithstanding the foregoing, such dates are not binding, and the date or time of delivery shall not be considered essential elements of this contractual relationship. Likewise, the Seller undertakes to deliver, whenever possible, complete Orders, which will depend on the availability of stock, and therefore partial deliveries of the Products may also be made. The Buyer waives the right to request any compensation for the reception of incomplete Orders provided that he receives the remaining part of the Order within a maximum period of fifteen (15) days from the first delivery; although, in those cases in which the Products to be delivered are imported – understood as such, those which are received from places outside Spain – the maximum period for receiving the remaining part of the Order will be thirty (30) days from the first delivery. In addition, in the event that the Seller considers that delivery of all or part of an Order may be delayed by more than twice the period set out in the Order Acceptance, or that it may fail to deliver the Order, it shall notify the Buyer to: (i) mutually agree an extension or modification to the delivery of the Order; (ii) or cancel the Order. In either case, the Buyer shall not be entitled to claim any damages whatsoever, but only a refund of the price in the event of cancellation of the Order. By way of exception to the provisions of the preceding paragraph, in the event that the delay or non-fulfilment of the Order is caused by a situation of force majeure, which is understood to be the consequence of events beyond the Seller’s control and which could not have been foreseen or which, if foreseen, were unavoidable, the Seller shall not be liable for the non-fulfilment or delay of the Order, and shall be released from the obligations to deliver the same, without the Buyer having the right to cancel it and without being able to claim any compensation whatsoever. If the event causing the force majeure persists for a period of more than one hundred and twenty (120) days, preventing the fulfilment of the Seller’s obligations, either Party shall be entitled to give notice of its wish to terminate the contractual relationship. In particular, but without limitation, the following shall be understood to constitute force majeure: unforeseeable events in manufacturing or distribution as a consequence of delay in supplies, boycott, lock-out or strike, either in the factory or in supply or transport companies, fires, floods, natural phenomena with catastrophic effects, wars, revolutions, acts of terrorism, riots, strikes, mobilisations and other industrial actions and, disruptions in the supply of energy, fuel, transport, equipment and raw materials.

9. RESERVATION OF PROPRIETARY RIGHTS

Notwithstanding the provisions of Clauses 7 and 8, until payment by the Buyer of the price set out in the Order Acceptance, as well as any ancillary costs and expenses payable to the Buyer, including the drawing of bills of exchange and the cashing of cheques accepted as a means of payment, the Products shall remain the property of the Seller. If there is no reservation of title in the Buyer’s country, the Seller shall be entitled to assert all other possible rights in the Products.

Until the transfer of ownership to the Buyer takes place:

The Seller may require the Buyer to return the Products, repossess them and may resell them.
The Products may not be pledged, assigned as collateral or in any way encumbered with the rights of third parties by the Buyer, but may only be sold in the ordinary course of business.
Maintenance costs for the Products delivered to the Buyer shall be paid by the Buyer and the Products shall be sufficiently insured against loss due to theft, fire, water, etc. and proof of such insurance shall be furnished upon request by the Seller.
The Buyer transfers to the Seller its claims against the insurer.

10. CONFORMITY INSPECTION

The Buyer shall check the Products immediately upon receipt in order to determine:

If transport has been at the Seller’s expense, if the Products have been damaged in transit, in which case, this fact shall be stated on the carrier’s delivery note.
In any event, if the Products are of the quality, quantity and weight indicated in the Order Acceptance.

In any case, notwithstanding the non-conformity to be noted on the carrier’s delivery note, the Buyer shall have a maximum period of seven (7) calendar days from receipt of the Order to check the Products in detail and notify the Seller of the non-conformity with the Products (the “Notice of Non-Conformity“), giving such details as may be necessary and providing evidence and documents in support of such non-conformity. Upon receipt of the Notice of Non-Conformity by the Seller, the Seller shall have a maximum of ten (10) calendar days to -if it deems it necessary- inspect the Products to which the non-conformity relates and/or request further evidence and -if necessary- confirm to the Buyer:

If the Products do not comply with the agreed quantity and quality characteristics and, it is confirmed by the Seller that the non-conformity therein is justified, in which case: (i) refund to the Buyer the price of the said Products; (ii) b. send the Buyer another consignment of alternative Products; (iii) return the Products, in which case:

the Seller’s instructions shall be complied with,
the ownership to the Products shall be transferred to the Seller upon receipt of the Products at the Seller’s indicated facility, if the Products are no longer subject to retention of ownership in accordance with the provisions of Clause 9,
the Products must be returned in their original packaging (if any) and unaltered in form and content.
- If the Seller considers that the Products comply with the agreed quantity and quality characteristics and, in such case, to initiate the procedures provided for in Clause 14 for the amicable resolution of disputes between the Parties.

11. WARRANTIES

The Seller warrants to the Buyer that it will deliver the Products in the quality set out in the Order Acceptance and in the packaging set out in the Order Acceptance, and that it will devote sufficient resources to fulfil its obligations under these Conditions. Likewise, the Seller warrants that the Products are suitable for placing on the market and are free from encumbrances and third-party rights. Except as provided above and elsewhere in these Conditions, the Seller shall not give any warranty in respect of the Products, including in relation to the use of the Products.

12. LIMITATIONS OF LIABILITY

Under these Conditions, the Buyer shall assume all risk and liability for loss, damage, or injury to the Products once risk has been transferred in accordance with Clause 7. The Seller shall not be liable for any loss or damage which the Buyer may suffer as a result of its own acts or omissions, or those of its employees and/or representatives in connection with the Products. The Seller shall not be liable for any consequential damages of any kind, nor for any loss of profit which the Buyer may suffer as a result of the acts or omissions of the Buyer, and/or its employees and representatives in connection with the Products or the contractual relationship with the Seller. The Seller’s liability arising out of the contractual relationship with the Buyer, including liability for non-delivery or late delivery of the Products, or in the event of defects in the Products, shall be limited to the net invoice value of the relevant Products. If the Seller is insured in respect of the liability claimed, the Seller’s liability shall in addition be limited to the amount which in the relevant case is paid by the insurer. The Seller shall not be liable for damage in respect of which the Buyer is insured.

13. BREACH AND TERMINATION

Either Party may notify and advise the other Party of a breach of any obligation not later than thirty (30) days after becoming aware of it. Upon receipt of the notice of non-compliance, the Party in breach shall use its best efforts to comply with its obligations. If the request of the complying Party is not fulfilled and the non-complying Party continues to fail to comply, the following consequences shall apply:

If the non-compliance is not fundamental, the provisions of Clause 14 shall apply.
If the non-compliance is fundamental, the Seller shall be entitled to choose either to enforce performance of the Contract or to terminate it. In particular, but not limited to, the Buyer’s failure to comply with its payment obligation shall be deemed to be fundamental.

In addition, the following situations in which the Buyer incurs shall be considered cause for early termination of the contractual relationship established between the Parties (even if there is no breach of obligations):

That the Buyer enters into bankruptcy, liquidation or any other situation of insolvency.
It is proven that the Buyer does not have the capacity to pay its debts.
There is a declaration of execution, levy of execution or attachment of the Buyer’s property.

In order to terminate the contractual relationship, the Seller will notify the Buyer in writing of the reason for which it has decided to cease the supply of the Products, indicating -if applicable- the amounts that are pending payment and the period that will be granted to the Buyer (which will not exceed ten (10) calendar days) for their effective payment. In any case, if the contractual relationship established between the Parties is terminated in advance, the Seller shall be obliged to deliver the Products of the Orders for which it has already sent the Order Acceptance, provided that their price has been paid in full. Otherwise, it shall be understood that, once the early termination has been documented, all Orders pending delivery shall be cancelled.

14. EXTRAJUDICIAL SYSTEM OF RESOLUTION

In the event that the Parties note discrepancies between them, but such discrepancy is not of a major nature or, if the Parties note any type of breach of the obligations set out in these Conditions that are not of an essential nature, prior to forcing the early termination of the contractual relationship, the Parties undertake to make their best efforts to reach an agreement. To this end, it is foreseen that, as soon as either of the Parties sends to the other a notification indicating the discrepancy between them, if the other Party is not willing to give in to the claims of the other, it will be obliged to negotiate during a maximum period of ten (10) calendar days, in order to promote good relations between the Parties, and all of this under the principle of good contractual faith. In the event that no agreement is reached, the provisions of Clause 13 shall first be applied for fundamental breaches and, in any case, the provisions of Clause 24 shall apply.

15. WAIVER OF RIGHTS

The Parties agree that the Seller, under no circumstances, waives its rights as they arise from the commercial relationship established with the Buyer. And all this, without prejudice to the fact that the Seller, from time to time, may decide not to exercise the actions that legally protect its rights against the Buyer’s non-fulfilment.

16. COMUNICACIONES Y NOTIFICACIONES

Communications and notifications between the Parties shall preferably be made by electronic means, although in the event that acknowledgement of receipt is required, they shall be made by postal mail (burofax or registered letter):

The postal address for sending communications to the Buyer shall be deemed to be, unless otherwise agreed, the registered office of the contracting person. With regard to electronic communications, unless otherwise agreed, the e-mail address that shall be considered valid for sending and receiving communications shall be the one from which the first communication to place the Order is sent.
The postal address for sending communications to the Seller will be considered to be, unless otherwise agreed, the registered address of the latter: Pl. del Ayuntamiento, 19, 46002 Valencia. Regarding electronic communications, the e-mail address provided for this purpose shall be: gpsl@guzmanpolymers.com

17. CONFIDENTIALITY

All non-public, confidential or self-generated information, including but not limited to specifications, samples, models, designs, plans, drawings, documents, data, business operations, customer lists, prices, discounts or bargains, which Seller makes known to Buyer, whether made known to Buyer orally or disclosed or given access to in written form, electronic or other format or medium, and whether or not marked, indicated, or otherwise identified as “confidential” is confidential and may not be disclosed or used by Buyer for its own use, including, without limitation, the filing of patent applications disclosing or based on such confidential information, unless previously authorized in writing by Seller. Upon request, the Buyer shall immediately return or destroy all documents and other materials received from the Seller. This paragraph shall not apply to information that was: (a) in the public domain; (b) known to Buyer prior to the time of disclosure; or (c) lawfully obtained by Buyer from a third party in a non-confidential manner.

18. DATA PROTECTION POLICY

Based on the provisions of the EU General Data Protection Regulation 679/2016 (“GDPR”) and the applicable Spanish national regulations on the protection of personal data, the Seller will process the information provided by the Buyer in order to manage the commercial relationship with the Buyer and for the execution of the Contract. The personal data provided will be kept for as long as the commercial relationship is maintained or for the years necessary to comply with the applicable legal and tax obligations. The personal data that may be provided will not be transferred to third parties except in cases where there is a legal obligation. The owners of the personal data provided by the Buyer will have the right to obtain confirmation as to whether the Seller processes their personal data, being entitled to access to data, rectify the data that are inaccurate or request their deletion when said data are no longer necessary. The exercise of the aforementioned rights may be carried out by means of written communication to the postal address of the Seller, Pl. del Ayuntamiento, 19, 46002 Valencia.

19. TRADEMARKS

The Seller’s trademarks and logos may only be used by the Buyer on terms specifically agreed in a separate document. And in particular, but not limited to, the Buyer shall not, without the prior written consent of the Seller, (a) refer to the Seller, its affiliates, its products or services, in any marketing, promotional or other advertising material, whether in written or electronic form, nor (b) use own brand names, trademarks, trade names, logos and other intellectual or industrial property owned by the Seller or one of its affiliates.

20. AMENDMENTS

Unless otherwise stated in these Conditions, these Conditions may only be amended or modified in writing and signed by an authorised representative of each Party.

21. SEVERABILITY

If any clause of these Conditions is void or voidable in whole or in part under applicable law, it shall be omitted from these Conditions without affecting the validity of the other conditions. In addition, if any statement, description, information, warranty, condition, or recommendation contained in any catalogue, price list, advertisement, or communication, or even made orally by any of the Seller’s representatives or employees contradicts what is expressly stated in the Conditions, it shall be void and shall be deemed not to have been made, or said, unless otherwise expressly agreed in writing.

22. ASSIGNMENT

Buyer may not assign any of its rights or delegate any of its obligations under the Contract without Seller’s prior written consent. Any attempted assignment or delegation in violation hereof is void. No assignment or delegation relieves Buyer of any of its obligations hereunder.

23. RELATIONSHIP BETWEEN THE PARTIES

The relationship between the Parties is an independent contractor relationship. Nothing contained in the Contract shall be construed to create any agency, partnership, joint venture or other form of joint venture, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract with or bind the other in any manner whatsoever. The contractual relationship entered into between the Parties shall be for the exclusive benefit of the Parties and their respective successors and permitted assigns and nothing herein is intended to confer or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.

24. ARBITRATION AND GOVERNING LAW

These Conditions and the contractual relationship established between the Seller and the Buyer shall be governed by Spanish law. In the event of conflict, the Parties expressly waive their own jurisdiction, if any, and submit to binding arbitration before the Court of Arbitration of the Chamber of Commerce of Valencia (Spain) under Law 60/2003, on Arbitration, and the rules of said Court, undertaking to comply with the arbitration award and any other resolutions that may be issued. There shall be three arbitrators, one appointed by each party and the third by both arbitrators and, alternatively, by the Court. The language shall be Spanish, and the place shall be the city of Valencia in Spain. The United Nations Convention on Contracts for the International Sale of Goods, done at Vienna on 11 April 1980, or any other that may replace it, shall not be applicable.

25. OTHER PROVISIONS

The Seller does not recognise any other terms and conditions. The Buyer explicitly waives the right to assert its own terms and conditions of business.