TERMS AND CONDITIONS OF SALE
1. ENTIRE AGREEMENT / ACCEPTANCE. Unless otherwise specified by written notice and signed by Indalum, S.A de C.V. (the "Seller"), the details of these terms and conditions for the sale of goods, products and/or services (the “T&C”) as indicated in this document, constitute the entire agreement between the Seller and the Buyer (as defined hereunder) and nullifies any agreement and/or understanding, of any nature, whether it is written or verbal, in relation to the purpose of this, and no other condition, warranty or statement, except those expressly agreed upon here will be mandatory on the Buyer and Seller in relation to the purpose of this document. These terms and conditions will apply to the purchase of the goods, products, and/or services (the "Products") that the buyer requests from the Seller through purchase orders or any other mean(s) (for purposes of this T&C, such buyer will be referred as the "Buyer”). The written acknowledgement and consent of the Buyer, start of work, delivery/receipt of the Products and/or absence of written rejection by the Buyer within the period established herein, constitute the acceptance of these T&C.
2. PRICES. The Buyer is obliged to pay full prices and other charges (including all taxes that the Seller must withhold from the Buyer) that are established in the corresponding invoice within a period of no more than 30 (thirty) business days after receipt of the invoice. Unless the Seller and the Buyer agree otherwise by written notice, the prices of the Products will not include packaging services, shipping, prepaid freight and /or postage charges, as well as applicable taxes. The Buyer is solely responsible for paying taxes, charges, fees and other expenses related to the provision of the services agreed hereunder. The Buyer may not, by any reason, withhold or offset from any payment owed to the Seller, even in the case of a dispute in good faith or resulting from any other transaction between the Buyer and the Seller.
3. CHANGE IN THE PURCHASE ORDER. If the Buyer decides to modify a purchase order, Buyer must inform by written notice to the Seller with 90 (ninety) calendar days in advance and inform the way in which said modification will materially affect the Seller's delivery schedule or costs. The Seller may reject, at its sole discretion, the modification of the purchase order if the Products ordered are at a stage of production that does not enable alterations. Upon receipt of the Buyer's written notice, the Seller may adjust the price of the costs and expenses arising from such changes or alterations to the purchase order, and the Buyer shall cover the Seller expenses incurred by the Seller.
4. PROCESSING OR ORDER. The Buyer acknowledges and agrees as follows: (a) that the cost of packing, wrapping and packaging will be charged separately from the price of the Products, unless otherwise agreed by written notice; (b) that the Seller will send the invoices and bills of shipping to the address and/or email indicated by the Buyer 10 (ten) business days as from the date of shipment of the Products; (c) except when agreed by written notice between the parties, no cash discounts will be applied for the timely payment of the aforementioned costs; (d) the Seller will prepare a separate invoice for each order or shipment; and (e) the Incoterm for the delivery of the Products is EXWORKS, however, in the event that the Buyer requests delivery in any another way, all Products will be shipped by the carrier and route designated by the Buyer and any cost for freight or additional transport incurred by Seller directly or indirectly, should be covered by the Buyer, including insurance. The Seller will deliver to the Buyer the invoices and any other document or requirement with which the invoices must comply, as established by the Tax Administration Service and in accordance with the requirements established by the Federal Tax Code, the Miscellaneous Tax Resolution and its annexes and any other applicable legislation, as well as any other requirement in accordance with the requirements that the Buyer communicates from time to time.
5. DEFECTS. In the event that the Products are manufactured under the specifications provided by the Buyer, any and all purchase order must be based on said specifications. The return of Products for non-compliant with the specifications of the purchase order must be covered by the Seller, including the transportation costs for the return, subject to the processes of technical opinion and applicability by the Seller, in accordance with the Complaints and Claims Policy in force published on the website of the Seller https://indalum.com.mx (the "Complaints and Claims Policy"). Any return attributable to the Buyer or derived from inconsistencies resulting from the request of Products between the purchase order and the specifications of the Purchaser will be covered by the Buyer in its whole.
6. SELLER'S WARRANTIES. (a) Unless it is agreed upon in any other way between the parties, the Seller warranty the Products to the Buyer for a period of 30 (thirty) calendar days as from the date of delivery, in all its parts and components manufacturing defects, operation and/or hidden defects. If any Product or any of its parts is considered defective for not meeting its specifications, the Buyer may return it at the Seller's expense, in accordance with the Complaints and Claims Policy; (b) The Seller expressly warrants that the Products covered by a purchase order will be delivered in accordance with the specifications, drawings, samples or other descriptions provided by the Buyer, they will be merchantable, of good material and of good workmanship, free from defects, appropriate and sufficient for the Purchaser's intentions of use and free from encumbrances of any kind; (c) With the exception of Products produced exactly from Buyer's designs, Seller warrants that Products, and the sale or use of them will not infringe or contribute to the infringement of any intellectual property rights of third parties, including without limitation, patents , trademarks, copyrights or other proprietary rights, and the Seller agrees to defend, indemnify and safeguard the Buyer, its subsidiaries, affiliates, representatives, successors, designees, customers and users of the Products against any lawsuit, liability or litigation in relation to them, direct damages, complaints and lawsuits for infractions or alleged infractions of any intellectual property rights related to the Products; and (d) The Seller represents and warrants that the Products and the performance of its obligations hereunder will be in accordance with all applicable laws, codes and regulations.
7. BUYER GUARANTEES. The Buyer states and guarantees that with respect to the Products requested from the Seller in strict adherence to the Buyer's specifications, designs and instructions, they and/or their manufacturing process will not infringe or contribute to the breach of any intellectual property rights of third parties, including without limitation, patents, trademarks, copyrights or other proprietary rights, and the Buyer agrees to defend, indemnify and safeguard the Seller, its subsidiaries, affiliates, representatives, successors, designees, clients and users of the Products against any lawsuit, liability or litigation in relation to them, direct, indirect damages, complaints and claims for infractions or alleged infractions of any intellectual property rights related to the Products, their specifications and manufacturing processes as requested by the Buyer.
Insofar as the Buyer provides specifications, including but not limited to the material, manufacture, or manufacturing process, or similar according to which the Seller must work, purchase, produce, etc., the Buyer shall be liable in respect of any defect, error, or inappropriate aspects of such specifications. The same shall apply to the extent where the Buyer supplies or instructs the purchase of raw materials, components, or products that the Seller must purchase (for example, from other manufacturers), supply services or otherwise process, treat or use in connection with the Products for the Buyer. The Buyer is responsible for ensuring that the design/manufacture of the Products is appropriate for its intended use. Any instruction or specification to the Seller should be considered as a guide only, and the Seller is not liable under any circumstances for any claim related to the design/manufacture of the Products. It is the sole responsibility of the Buyer to examine and ensure that Products manufactured by the Seller comply with all local laws, regulations and practices in the country of actual or intended sale.
The Seller shall not be held liable for delays or defects if the Buyer has not informed the Seller in detail about the intended application and all circumstances, including the environment, temperature variations, washing/cleaning methods, installation methods, frequency of use, other products, components, etc. to be used in, or in combination with a Product delivered by the Seller.
If, for a project or order process, a reference sample has been made for approval and the sample has been approved by the Buyer, the reference sample will be considered the standard in relation to the evaluation of, for example, defects.
8. CANCELLATION. The Buyer may only cancel a purchase order by notifying the Seller by written notice, with at least 90 (ninety) business days in advance. In the event of cancellation, the Buyer will pay for all and/or finished Products regardless of whether they are available to the Buyer, as well as the costs incurred by the Seller for the Products in process. Upon receipt of any cancellation notice under a purchase order, the Seller shall, unless otherwise indicated, immediately discontinue all work in progress and immediately cancel the purchase order in question. If the Buyer chooses to cancel a purchase order, the Buyer will have the option to take any Product included in the purchase order, provided or in process, under the terms agreed by the Buyer and the Seller, paying the corresponding Price plus expenses, costs and/or surcharges incurred for the cancellation.
9. RISK OF LOSS AND PRODUCT LIABILITY INSURANCE. Unless the Seller and Buyer agree otherwise by written notice, the risk of the goods will be held by the Buyer as from the moment the Products are available to the Buyer and/or its carrier. The Buyer shall be responsible for all costs, damage, and risk of loss, including damage in transit and any other consequential damages, and shall be considered as an insurer of the same.
10. DEFECTIVE OR NON-CONFORMING PRODUCTS. (a) If any of the products does not comply with the warranties of the Seller, the Seller shall, with previous written notice made by the Buyer, collect defective or nonconforming products, all at the expense of the Seller. (b) The Seller will issue to the Buyer, a credit note for the value of the Products collected, as defective or non-compliant according to the corresponding invoice, with the understanding, however, that the Seller will not reimburse or be liable for costs and/or transportation expenses thereof. (c) The Seller shall have no obligation to indemnify or hold harmless the Buyer, its subsidiaries, affiliates, representatives, successors, designees, customers and users of the Products from and against any obligation, claim, litigation, cost, damage or expense of any nature (including personal, property, consequential or special damages) arising from or as a result of improper material, inadequate work or design, unsafe or defective goods or services, if such defects were not duly notified in accordance with this section within 7 (seven) calendar days after the Products were received by the Buyer. For what is not provided for in this clause, the Buyer and the Seller undertake to submit to the provisions established in the Complaints and Claims Policy.
11. INDEMNIFICATION. The Seller and the Buyer, jointly with their subsidiaries, or affiliates or their respective successors, assignees, representatives, employees, agents or clients, will be responsible for and will be obliged to indemnify or keep safe reciprocally to one another, its subsidiaries or affiliates, or their respective successors, assignees, representatives, employees, agents, subcontractors or suppliers of and against any obligations, claims, demands, costs, damages or expenses of any nature, including damages to the person, to property, but with the exception of consequential or special damages, arising from or as a result of materials, workmanship or inadequate, unsafe or defective designs of the goods or services, caused, produced or derived from the design, material, processes or specifications performed for the manufacture of the Products, including the improper use of the designs, specifications or instructions of the manufacturer delivered to the Seller.
12. LIMIT OF LIABILITY. The exclusive remedy of the Buyer against the Seller, for whatever reason, will be limited to the purchase price of the Buyer established in each purchase order in question. In no event shall the Seller be liable for loss of profits, incidental, special, indirect, contingent, consequential damages or expenses incurred by the Buyer. The Seller shall under no circumstances be liable for losses, expenses and/or damages suffered to the Buyer and caused by the Seller, the Seller's employees, or by third parties hired and/or subcontracted by the Seller. The Buyer shall be solely responsible for safeguarding its personnel, materials and equipment, including within the Seller's premises; therefore, the Seller will not be responsible for damages or losses of any kind caused to them.
13. SHIPPING AND DELIVERY. The Seller shall pack and ship the Products in accordance with the delivery instructions established in the purchase order and as provided by the Buyer or, if not established, in accordance with the best commercial packaging available. Unless otherwise agreed by written notice between the Seller and the Buyer, all shipments and deliveries of the Products must be made at the Seller's premises. The delivery will be considered as complete, and the title of ownership and the risk of loss will be transferred when the Products are made available to the Buyer and/or its carrier at the Seller's facilities unless the Seller and the Buyer agree otherwise by written notice. For deliveries having a destination other than the Buyer's establishments, the delivery shall be considered completed and the title of ownership and the risk of loss will be transferred when the Products are received in good condition at the destination point. Unless specifically agreed between the Seller and the Buyer, the Buyer will be responsible for all delivery costs, including shipping and insurance costs, obligations, taxes and other charges. The Seller will ship the Products in accordance with all applicable laws, regulations, and rules.
14. NO LABOR RELATIONSHIP. The Buyer states that its personnel maintains an employment relationship exclusively with the Buyer, therefore the commercial and contractual relationship established with the Seller should not be considered for any reason as the figures of labor intermediation or substitute employer established in the Federal Labor Law. In this sense, the Buyer will be solely responsible for the actions of its employees regarding the services offered, as well to its own employees for the obligations imposed by the aforementioned labor legislation and/or other applicable dispositions, especially committing to keep the personnel under their charge duly insured in matters of Social Security. Notwithstanding the foregoing, if any member of the direct or indirect staff in charge of the Buyer and/or its sub-suppliers takes any action or claim against the Seller, the Seller will be directly responsible for holding Buyer safe and sound, committing in any case, to reimburse any amount that it had to disburse due to the attention of said action or claim (including attorneys' fees, expenses, costs or any amount that was ordered to pay due to a resolution of authority or as a result of agreements or settlements that tend to end the controversy). In the same way, the Buyer is obliged in the aforementioned terms to hold Seller safe and sound from any action and/or claim that its Sub-Suppliers will attempt against the Seller.
15. TITLE TO INTELLECTUAL PROPERTY. Unless otherwise agreed in witting by the Seller, the Seller will retain all right, title and interest in and to, all of its proprietary technology, including but not limited to, all copyrights, patents, trade secrets and other intellectual property rights associated with any ideas, concepts, methods, processes, techniques, inventions or works of authorship developed: (i) by the Seller; (ii) by a third party for the benefit of the Seller; and/or (iii) by the Seller for the benefit of the Buyer, including, without limitation, any of the tools or other elements used by the Seller to create products for the Buyer (the "Intellectual Property").
16. CERTIFICATES OF ORIGIN. At the Buyer's request, the Seller must provide the Buyer with all certificates of origin or national added value and any other information related to the costs and places of origin of the Products and materials contained therein for their provision, as required by the Buyer to comply with all customs duties, fees and any other applicable government regulations. The Seller must comply with all regulations.
17. ACTS OF GOD OR FORCE MAJEURE.- The Seller shall not be liable for the payment of any damages and losses against the Buyer in the event that it fails to comply with its obligations under a purchase order as a result of unforeseeable circumstances or force majeure, or “acts of God” mentioning without limitation, strikes, work stoppages, acts of nature, health contingencies, epidemics, due to government regulations, orders of authority or any other circumstance of this nature, including lack of material or raw material due to unforeseeable cases or any another cause beyond the control of the Seller, hereinafter an "Event".
In the case that the existence of an Event that lasts more than 45 (forty-five) calendar days occurs and that totally or partially prevents the Seller from delivering the Products, the Buyer may cancel the respective purchase order, following the process indicated in clause eighth of these T&C.
In the case that said Event ceases, ends, or disappears, provided that the Seller continues to be able to resume the fulfillment of its obligations under a purchase order, such purchase order will continue to have full effect.
18. CONFIDENTIALITY. The Buyer, at all times, will keep confidential all information, drawings, specifications, prices, costs, and data of any kind or nature provided by the Seller (whether it is provided by writing, electronically, orally, or visually) or derived or developed by the Seller during the performance of the purchase order. The Buyer will not disclose such confidential information, will not use it for its own benefit or for the benefit of any other party, or reproduce it or allow it to be reproduced. These confidentiality obligations will not apply to information obtained by the Buyer from a third party with legal authority to disclose it that is not bound by confidentiality, or to information that enters the public domain in a way other than disclosure by the Buyer. The Buyer will not publish or announce the existence or nature of the purchase order without the prior written consent of the Seller.
19. LEGAL RECOURSES AND REMEDIES. The legal recourses and remedies reserved in these T&C will be cumulative and not alternative, and may be exercised separately or jointly, in any order or combination, and are in addition to any other resource or remedy provided by or permitted by law, in equity or from any other way.
20. SEVERABILITY. In the event that any provision of a purchase order is invalid or unenforceable under any law, regulation, ordinance, decree or other ordinance of law, said provisions will be deemed amended or eliminated, as the case may be, but only to the extent necessary to comply with said law, regulation, ordinance, order or rule and the remaining provisions of the purchase order will remain in force and with full legal effect.
21. ASSIGNMENT OF PURCHASE ORDERS. No purchase order may be assigned by the Buyer without the prior consent of the Seller. Any attempt to do so will result in the nullity of the assignment and the Seller will have the right to cancel the purchase order without any liability or penalty.
22. APPLICABLE LAW AND JURISDICTION. The parties expressly submit to the federal laws of Mexico and the jurisdiction of the competent Courts in Monterrey, Nuevo León, Mexico for the interpretation, execution and fulfillment of any purchase order, expressly waiving any other jurisdiction to which the parties have right by reason of their future or present addresses, or for any other reason. The purchase order will be governed by the laws of the Mexican United States. If the Buyer fails to fulfill its obligations, the Buyer shall pay the Seller all costs and expenses incurred by the Buyer, including legal fees, for the fulfillment of the Seller's rights, whether by formal procedures or otherwise, in addition to any other resource available to the Seller.
23. UPDATE OF TERMS AND CONDITIONS. In order to comply with its obligations, the Buyer acknowledges and accepts that it has access to and at its disposal these T&C , which were read and understood by all its representatives, employees, agents and dependents, and fully agrees to comply with the provisions of the the same regardless of the modifications that these may undergo from time to time, so it will be the responsibility of the Buyer to keep abreast and comply with the modifications that these T&C undergo through their periodic review on the Seller's website.
24. LANGUAGE INTERPRETATION. In case of controversy regarding the meaning of what is expressed in these T&C between the English and Spanish language versions, the Spanish language version will prevail.