HISPANOX, S.A.

GENERAL CONDITIONS OF SALE AND DELIVERY

 

1.      General

1.1.   All business relationships between Hispanox, S.A., with registered address at Xaloc, 2, Polígono Llevant, Polinyà, Barcelona (Spain), with Corporate Tax ID No. A58496837 ("Hispanox") and its customers (the "Purchaser") are governed by the following general conditions of sale and delivery (the "Conditions"), which are understood as accepted by the Purchaser and are binding simply by acceptance and/or approval of an Offer or sale proposal made by Hispanox (the "Offer").

These Conditions therefore constitute a binding agreement between Hispanox and the Purchaser and prevail over any other purchase conditions that the Purchaser may remit to Hispanox, being applicable to all of its business relationships. 

1.2.   Any condition related to the purchase and/or delivery of the products sold by Hispanox that is contradictory to or divergent from these Conditions or any other reservation made by the Purchaser is not effective unless Hispanox expressly accepts it in writing for a specific Offer.

1.3.   Hispanox may, from time to time, modify any of the clauses of these Conditions and, therefore, they must be reviewed and read by the Purchaser prior to accepting any Offer.

Any modification to these Conditions will apply only from its publication on the Hispanox Website.

1.4.   Hispanox and the Purchaser are independent entities and the acceptance of one or more Offers by the Purchaser does not imply the existence of an agency and/or representation and/or distribution relationship or a relationship of any other nature between them beyond that related to the supply of products under the terms of these Conditions.

Therefore, the Purchaser may not (directly or indirectly), unless expressly authorised for this purpose by Hispanox, grant any guarantee regarding the products, carry out commercial transactions on behalf of Hispanox or act in judicial proceedings in a manner that implies (or may appear to apply) that the Purchaser is acting as its agent, distributor or representative. 

 

2.      Customer registration

In order for Hispanox to ship any product to a Purchaser, even though the Purchaser has accepted a specific Offer, the Purchaser must sign (i) the customer registration form; and, also (ii) the payment Conditions sheet (the "Registration Documents") and must provide Hispanox with all the information and/or documentation necessary to complete the aforementioned documents.

 Therefore, the completion and subscription of the Registration Documents is a mandatory condition in order for Hispanox to dispatch any product to a Purchaser.

 

3.      Offers 

3.1.   Offers are valid for seven (7) calendar days ("Offer Validity Period") and once this term has transpired without the Purchaser having tacitly and expressly accepted, Hispanox will not be bound by the Offer.

Therefore, during the Offer Validity Period and until the Purchaser has accepted the Offer (i) Hispanox may make the product offered for sale available to other customers without the Purchaser being able to, as a consequence, to make any type of claim against Hispanox; and (ii) if applicable, Hispanox will inform the Purchaser indicating how this circumstance affects the delivery period of the products.

3.2.   Offers referring to products that Hispanox does not have in stock (with or without special technical specifications) can only be considered accepted by the Purchaser expressly (the "Offers on Time").

3.3.   The Offers, once the product object of them is dispatched, will cease to be effective between the Purchaser and Hispanox, in such a way that the special terms and Conditions of sale established in them will lose their validity.

Notwithstanding the above, provided that the agreement is in writing and unequivocally in an Offer, the parties may agree that the terms and Conditions of an Offer are applicable between them for a specific period of time and, therefore, for more than one delivery. Upon the expiry of this term, the delivery terms agreed between the parties will lose their validity.

3.4.   The Purchaser, having accepted an Offer (either tacitly or expressly), cannot revoke consent and, therefore, is obliged to comply with the obligations arising from it, especially those of receipt and payment of the product delivered by Hispanox. 

For the purposes set forth in these Conditions "express acceptance" of an Offer means the date on which Hispanox receives confirmation from the Purchaser, by any means admitted within the law, of its approval of the Offer, whether in writing, by telephone or in person and, if it is in writing, regardless of the medium used (e-mail, fax, letter or Hispanox corporate Website, among others).

 

4.      Prices 

4.1.   The sale prices are those included by Hispanox in the Offer and are in force, unless expressly agreed otherwise in accordance with the provisions of section 3.3 above, solely and exclusively in relation to the delivery that is the subject of the Offer.

4.2.   In relation to the Offers that, for having been expressly agreed upon by the parties, maintain the validity of the price and payment terms for more than one delivery, Hispanox is entitled to increase prices in the event of an increase in labour costs and/or linked to the manufacturing cost in proportion to the increases, the price resulting from the increase being assumed and paid for by the Purchaser in all cases.

4.3.   Any discount, rebate, bonus or credit that is granted in relation to a specific Offer: (i) will be applicable solely and exclusively in relation to the Offer and will not imply an acquired right for the Purchaser; and, also (ii) it will be conditional on the good outcome of the transactions that the specific Offer is subject to. Consequently, the Purchaser will lose the right to receiving it if there is a default or late payment for that transaction.

 

5.      Payment

5.1.   All products delivered must be paid for in the manner and within the period expressly agreed between Hispanox and the Purchaser and, in the absence of agreement, within a maximum period of thirty (30) days from the date of issue of the corresponding invoice by Hispanox.

5.2.   In the event that Hispanox has reasonable grounds to doubt the Purchaser's solvency and the Purchaser is not willing to make the cash payment in advance or provide Hispanox with sufficient guarantees as requested, Hispanox will have the right to adopt, without prejudice to any other action that may legally correspond, any of the following measures:

        (i) Defer delivery of the products that have not yet been made to that date until such time as the Purchaser complies with its obligations; or

        (ii) Cancel the pending deliveries and, therefore, terminate the Offer and be compensated for all costs and/or expenses accrued, as well as for all damages sustained until the date on which the Offer is terminated.

The rights conferred in favour of Hispanox will also apply in case of non-payment (total or partial) by the Purchaser of any invoice validly issued by Hispanox.

5.3.   In the event of non-payment of any invoice, the Purchaser is responsible for the bank charges for the return, the interest for late payment and the damages and losses derived from it.

5.4.   All amounts due and not paid by the Purchaser will accrue default interest in favour of Hispanox equivalent to the legal interest of the applicable money at each moment increased by three (3) percentage points for the total number of days of delay in payment over the amounts still to be paid.

5.5.   Hispanox reserves the right to apply the payments received to settle invoices issued to the Purchaser with an earlier expiry date and interest for late payment and possible accrued costs, in the following order: costs, interest for late payment and principal.

5.6.   The Purchaser cannot compensate the payments owed to Hispanox.

 

6.      Delivery

6.1.   The delivery times are those that, in each case, are included in the Offer and will depend, in any case, on the availability of stock and production. In this regard, it is expressly stated that, unless otherwise agreed, all delivery times are estimated, so they are not guaranteed and should not be understood as deadlines for Hispanox.

6.2.   Hispanox is not responsible, in any case, for losses, damages, expenses and/or costs, whether direct or indirect, that may be caused to the Purchaser as a result of a delay in the delivery of the products indicated in the Offer, while these delivery periods, as indicated, are merely estimates.

If, in any case, there is a delay in the delivery of the products under an Offer for reasons attributable solely and exclusively to Hispanox, the parties agree that:

        (i) If the delivery occurs within the month following the delivery date estimated in the Offer, the products in question will be considered delivered within the estimated date and, therefore, in the terms of the Offer;

         (ii) If the products are delivered beyond one month with respect to the date that the supply was estimated in the Offer, then:

            a) The parties, in good faith, will try to find a consensus alternative for a period of five (5) business days after Hispanox presents one or several alternatives in this respect to the Purchaser;

            b) If the Purchaser, acting in good faith, does not accept any of the alternatives proposed by Hispanox, the latter will apply, once the material has been delivered, a discount on the corresponding invoice of 0.5% on the amount of the products and delayed amounts in the Offer in question for each week of delay from the end of the aforementioned period of one month. The discount will be limited, in any case, to an amount equivalent to 5% of the total amount of the products and delayed amounts of the Offer in question and will exclude any other compensation for damages and losses.

            c) If Hispanox has not delivered the product effectively within four months after the estimated date of delivery in the Offer, the Purchaser may:

                i. either terminate the Offer without being entitled to any compensation or anything to claim from Hispanox;

                 ii. or accept the Offer with the corresponding delay with the same Conditions specified in section b above.

Everything provided for in this section 6.2, which is subject to the limitations resulting from section 6.3 below, is essential for Hispanox and, therefore, by accepting any Offer the Purchaser declares to understand and accept the implications of this agreement, insofar as that the delivery dates of the products are, in any case, estimates and are not considered as the deadline for delivery.

In particular, but without limitation, the provisions of this section 6.2 above regarding deliveries made beyond the date estimated in the Offer will not apply when the circumstance occurs as a result of a breach by Hispanox suppliers.

6.3.   In all cases:

        (i) Compliance by Hispanox of the products under an Offer is subject to the timely delivery of the corresponding goods by Hispanox's own suppliers without Hispanox assuming any responsibility before the Purchaser for non-compliances that are caused by the Hispanox suppliers.

        (ii) The Purchaser accepts that a variation (either in surplus or in deficit) of up to ten (10) percent in the quantity delivered is acceptable and cannot be understood as a breach of the Offer in question, the Purchaser waiving the exercise of any action that may correspond to Hispanox based on that circumstance.

       (iii) The Purchaser grants Hispanox the right to make partial deliveries in relation to any Offer so that Hispanox can deliver effectively and the Purchaser is obliged to receive and accept the delivery as part of the products of an Offer. In such case, the Purchaser will pay the invoice corresponding to the partial delivery in the period provided for in accordance with these Conditions. 

 

7.      Dispatch of the products. Transport

7.1.   Unless otherwise agreed or expressly stated in relation to a specific shipment, the Purchaser assumes the risk of transporting the product, even when the damages and losses caused during transport are due to a fortuitous event or force majeure. The fact that Hispanox contracts the transport of the merchandise and that, in some cases, may pay for its cost, does not entail waiver of the provisions this condition, nor acceptance by Hispanox of the associated risks.

7.2.   Unless specific instructions are received from the Purchaser that are accepted by Hispanox, Hispanox reserves the right to choose the transport route and method unless the transport is contracted by the Purchaser, in which case the Purchaser is entitled to choose the transport route and method.

7.3.   Unless otherwise agreed, transport expenses will be assumed by Hispanox when the Offer indicates that the delivery is postage paid and, in such case, solely and exclusively, when the Offer is accepted by the Purchaser and the latter complies with its terms and Conditions. In any other case, transport will be paid for by the Purchaser.

Any other expense related to loading and delivering the products, except for the provisions of section 7.5 below, is assumed by the Purchaser.

7.4.   In general, the Purchaser is responsible for customs and import duties in the destination country; however, if the parties have agreed in the Offer that Hispanox is responsible for bearing customs and import duties, any increase of the charges that enters into force between the date of formalising the Offer and delivering the goods will be borne by the Purchaser. Any other charges, taxes or expenses related to the purchase will also be borne by the Purchaser.

7.5.   The cost of standard packaging is included in the price of the products, unless otherwise advised, or as specified in the Offer.

7.6.   The risk of destruction, loss or damage is transferred to the Purchaser at the time that Hispanox makes the Products available to the Purchaser, with their usual packaging, at the Hispanox store located at Xaloc, 2, Polígono Llevant, Polinyà, Barcelona (Spain).

 

8.      Ownership of the goods

8.1.   Without prejudice to the Purchaser assuming any type of risk and/or loss related to the products from the moment they are placed at the Purchaser's disposal in the Hispanox establishment, ownership of the goods is only transferred and passed on to the Purchaser at the time at which the Purchaser has complied with all obligations arising from its commercial relationship with Hispanox, including the settlement of accessory claims, claims for damages and payment of the corresponding invoices. Hispanox also retains the ownership of the products sold if any of the claims made by Hispanox is recognised by the Purchaser as a debt.

8.2.   If the Purchaser does not fully and punctually comply with the obligations to Hispanox, it has the right, without prior notice and without having to terminate the Offer, to demand the return of the products whose ownership the Purchaser is entitled to retain under this condition. The acceptance of the returned merchandise does not lead to the termination of the Offer per se, unless Hispanox has expressly accepted it in writing and, therefore, Hispanox will be entitled to claim any outstanding amount from the Purchaser (including principal and late-payment interest) in relation to the corresponding products.

8.3.   The Purchaser undertakes, on behalf of Hispanox, to correctly store the products whose property Hispanox retains, to repair and maintain them at the Purchaser's own expense and to insure them against loss and damage with the diligence reasonably expected of a good merchant. By accepting these Conditions, the Purchaser grants Hispanox the right to claim any damage caused to the products from the entities with which the aforementioned insurance policies are contracted.

 

9.      Cancellation of Offers

9.1.   If an Offer is cancelled by the Purchaser once accepted, the Purchaser is obliged to compensate Hispanox for the damages and losses caused.

9.2.   Notwithstanding the foregoing, the Offers, once accepted by the Purchaser, may not be cancelled in any of the following cases:

        (a) When the product object of the Offer has been made available to the Purchaser in the Hispanox facilities in pursuant to condition 7.6 above;

        (b) When it is a Term Offer.

 9.3.   Hispanox reserves the right to cancel any Offer in force with the Purchaser when the latter has breached, totally or partially, any of the obligations assumed by virtue of any of the accepted Offers.

  

10.      Limitation of liability

10.1.   Except as otherwise provided by applicable law, Hispanox will not be liable for damages or losses (including lost profits) that are not caused by a direct breach by Hispanox or that were not foreseeable by the parties when the Offer was formalised.

 10.2.   Hispanox is not responsible for any delay and/or failure to comply with its obligations under these Conditions if the delay or non-compliance in question is a consequence of a cause beyond Hispanox's reasonable control or that is due to a manufacturing defect, in which case, the responsibility will be directly assumed by the manufacturer with total indemnity for Hispanox.

  

11.      Notification of defects

11.1.   Once the product has been delivered, the Purchaser must examine the products to detect possible deficiencies, defects or other apparent faults. In particular, the Purchaser must check the condition of the packaging, the number of packages and the products in terms of quantity, reference, status and specifications.

11.2.   The notification of defects in the supplied goods will only be acknowledged if it is presented in writing and within two (2) weeks after receipt of the product, accompanied by tests, samples and delivery notes and indicating the invoice number, the date and the identifications on the packaging. Hidden defects must be notified to Hispanox immediately after their discovery. The cost of proving that a defect is a hidden defect will be borne by the Purchaser.

If the defects in the goods are notified to Hispanox outside of the aforementioned period of two (2) weeks from the date of receipt by the Purchaser, Hispanox will have no obligation to the Purchaser regarding the state and/or condition of the products.

11.3.   Repairs or replacements of defective parts must always be checked and made or authorised by Hispanox and in no case may the Purchaser claim charges or damages for such concepts.

11.4.   Claims made by the Purchaser will only entitle the Purchaser to receive a replacement. If the replacement provided by Hispanox is also defective, the parties may agree to a discount on the purchase price or opt to terminate the Offer.

 

12.      Warranty period

12.1.   Unless otherwise provided or required by applicable law, warranty claims expire within a period of one (1) year, starting from the start of the warranty period (that is, the delivery date), unless the goods are used in the construction of a property in accordance with its usual use and such use has caused defects in the building. In such cases, warranty claims expire after two (2) years, starting from the start date of the warranty period. The mandatory regulations that govern the period of legal warranty (for example, liability for granting a warranty, liability for fraud and serious negligence, death, physical injury or damage to health) due to non-compliance with essential contractual obligations are not affected.

12.2.   According to ISO 4042, in quality products 10.9; 12.9; 14.9; 45-H; 10 and 12, the absence of hydrogen in the parts after an electrolytic surface treatment (zinc plating, bricomated, etc.) cannot be guaranteed and therefore Hispanox does not provide a warranty.

 

13.       Merchandise specifications and technical advice

13.1.   The product specifications are, as a general rule, those indicated in the Hispanox product specifications, descriptions and labelling in force at all times and are purely informative. Hispanox reserves the right to modify any of the aforementioned specifications at any time and without prior notice.

13.2.   Promotions or advertising actions related to the conditions of the products are not considered information about the specifications of the item for sale.

13.3   Hispanox will adopt the measures necessary to ensure the quality and technical specifications of its products, adjusting to the requirements established for their ordinary use in accordance with the standards for the supply of fasteners, ISO 3269.However, and whenever the use that may be made of the products is beyond Hispanox's control, it does not guarantee the viability or adequacy of the products for uses other than ordinary uses in any way. Consequently, Hispanox does not assume any responsibility before the Purchaser or before third parties, neither contractual nor extra-contractual, for damages, losses, lost profit and/or losses of any other nature derived, directly or indirectly, from the use and/or application that may be made by the Purchaser and/or, as the case may be, by the Purchaser's end customers of the products.

13.4   The technical advice provided by Hispanox verbally, in writing or by means of demonstrations, is provided in good faith and without any commitment, so it is not contractual and does not generate obligations for Hispanox. Technical advice provided by Hispanox does not release the Purchaser from the obligation to test the products supplied by Hispanox in terms of their suitability for the intended processes and uses. The Purchaser is fully responsible for the application, use and transformation of the products.

In order to avoid any misunderstanding, it is clarified that Hispanox has no knowledge or any control over the use that the Purchaser makes or will make of the products purchased from Hispanox and that, therefore, the Purchaser indemnifies Hispanox (which does not assume nor will assume any responsibility) for any damage, loss and/or harm (including lost profits and consequential damages) that the Purchaser and/or third parties (directly or indirectly) may sustain for the use that they may make of the products.

  

14.      Force majeure

If either party, that is, Hispanox or the Purchaser, is delayed in or fails to fulfil any of the obligations assumed before the other party as a result of force majeure, that party will be released from its obligations as Seller or Purchaser, as the case may be, to the extent that the fulfilment of its obligations has been frustrated, impeded and/or disabled as a consequence of the cause of force majeure. If this is the case, the Purchaser will reimburse Hispanox for each and every one of the expenses and/or costs incurred as a result of the actions carried out and/or products commissioned or delivered prior to the occurrence of the force majeure event.

For the purposes provided in these Conditions, "force majeure" means any type of serious, unpredictable and unavoidable event that is beyond the control of the parties, such as, but not limited to, disturbances in traffic or expedition, war, acts of terrorism, fires, floods, unforeseen labour, supplies or raw material and construction material shortages, strikes, lockouts, acts of government.

  

15.      Notifications

15.1.   All notifications, requirements, requests and other communications made between the parties related to their business relationship must be made in writing, by any legal means and admissible by law that provides a legitimate record in a reliable manner to the addresses and the attention to the people that appear detailed in the Offer.

15.2.   Any modification or change in the addresses or contact persons indicated by the parties must be communicated to the other party by any of the methods mentioned above and will not take effect until the other party acknowledges receipt of such modification or change.

15.3.   If the notices received by the parties are made on a non-business day, it will be considered received the next business day. Non-business days are Saturdays, Sundays and public holidays in the locations of the addresses of both parties.

 

16.      Personal data

16.1.   Both parties undertake to maintain total confidentiality with respect to the personal data of the opposing party to which they have had access in compliance with these Conditions, to only supply it to authorised persons and to observe the legal provisions contained in the regulations that may be applicable. In particular, they agree not to use the personal data obtained from the other party for any purpose other than that contained in the Conditions.

16.2.   The information regarding data processing by Hispanox, with the personal data that may be generated during this relationship, is in the section ''Privacy Policy".

 

17.      Nullity of the clauses

If any clause included in these Conditions is or becomes wholly or partially invalid, the validity of the remaining clauses or remaining parts of the condition in question will not be affected. The parties will replace any invalid clause with a valid clause that is as close as possible to the economic purpose of the invalid clause.

  

18.      Applicable law and interpretation of commercial terms

18.1.   These Conditions are governed and interpreted in accordance with Spanish law.

18.2.   The application of the Uniform Law on the International Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods - both dated 1 July 1964 - and the United Nations Convention on Contracts for the Sale of Goods international sale of goods, 11 April 1980 are expressly excluded.

18.3.   Commercial uses are interpreted in accordance with INCOTERMS. If the parties have not agreed on the application of any INCOTERM expressly in the Order, the Ex Works (EXW) INCOTERM will apply.

  

19.      Conflict resolution and jurisdiction

19.1.   In case of litigation, the parties undertake to negotiate in good faith with the intention of reaching an agreement within a maximum period of thirty (30) business days from the date of the dispute.

19.2.   In the absence of an agreement, the parties agree to submit to the Courts and Tribunals of the City of Barcelona for any claim or litigation that may arise from the execution of the Conditions or from the obligations derived thereof.

 

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Version updated to date 14/02/18