GENERAL TERMS AND
CONDITIONS OF SALE
(SEPTEMBER 2021 EDITION)
These General Terms and Conditions of Sale ("GTCS") apply to any sale of products and/or services (altogether; the "Products") by “Tècniques d'Estampació I Embotició de Metalls, S.A.” (Hereinafter referred to as "TESEM") to its Clients (hereinafter referred to individually as "the Client") and form an integral part of the contract between TESEM and its Client. (Hereinafter collectively referred to as the "Parties"). The Client declares to have knowledge and understanding of these GTCS and confirms having accepted them. The Client acknowledges that he/she has received the necessary information to ensure that the Products and these GTCS are suitable for his/her needs. Unless otherwise agreed in writing with particular conditions previously agreed between the parties, any order placed by the Client or any acceptance of a sales offer made by TESEM implies acceptance of these general terms and conditions of sale and obligatorily entails the waiver by the Client of any of its own general terms and conditions of purchase or of any provision contrary to these terms and conditions. The GTCS may be modified or completed by special written conditions, previously accepted by the parties. The fact that TESEM does not invoke any of the clauses of the GTCS at a given time may not be interpreted as a waiver of the right to invoke any of the said clauses at a later date.
1. FORMATION OF THE CONTRACT
Orders, once accepted by TESEM, are binding. Products are neither returned nor exchanged, unless agreed otherwise. Orders issued by the Client are subject to written acceptance by TESEM. Under no circumstances shall the commencement of performance by TESEM of the Client's order constitute tacit acceptance of the terms of said order. All information, specifications and prices in TESEM's documentation, including any quotation, are provided for information purposes only and shall only be binding on TESEM in accordance with the Client's order accepted by TESEM. It is the Client's responsibility to check any studies and recommendations provided by TESEM to the Client under its own control as it is the Client's responsibility to ensure, prior to design, manufacture or provision of service, that the Product is compatible with the intended use, if necessary, by carrying out appropriate tests.
Unless otherwise agreed, the tools (equipment, machines, moulds, prototypes, samples, etc.) remain the property of TESEM as an integral part of its means of production and its intellectual property. Contrary to the above, it can be agreed that when a tool is supplied by a Client or is exclusively manufactured for and belongs to a Client and the cost of the tool is fully borne by the Client, the tool remains the property of the Client. In the latter case, all costs and expenses (development, repairs, modifications and restorations, duties, taxes....) shall be borne by the Client and shall be re-invoiced to him where appropriate.
These tools are kept in the premises of TESEM, which will maintain them in a normal state of operation with regard to the said tool in question, its life span and its particular characteristics agreed upon in writing at the time of its delivery by or for the Client. Such equipment shall be insured by the Client or TESEM, as custodian as the case may be, in an appropriate manner with regard to its deterioration or destruction. Any return of a tool can only be made at the end of the order relating to the Products concerned, on the express request and at the expense of the Client, all charges paid and after payment of all sums owed (or to be owed) to TESEM by the Client (regardless of their due dates).
2.1 Collaboration tooling
The "Collaboration Tooling" mode will be requested from the Client when, in order to produce the Products on behalf of the Client, TESEM is obliged to manufacture or modify a part or element of its existing tooling or moulds due to the particular requirements of the Products. This means that the Client will bear the costs of manufacturing this part of the mould and/or these additional elements and consequently only this part will be considered its property.
The delivery dates and deadlines are indicated in the order confirmation. Exceeding these dates and deadlines may not lead to cancellation or termination of the order, nor to compensation or penalties for delay. These dates and deadlines shall be automatically extended in the event of a delay due to force majeure under the conditions of Article 7, as well as in the event of a delay attributable to the Client, such as a delay in payment as indicated in Article 4.2. Unless otherwise agreed in the written acceptance of the order, deliveries shall be made in accordance with the tolerances commonly accepted in the industry sector.
Unless otherwise specified in the written acceptance of the order, the Products are delivered in packaging in accordance with the customs and standards agreed upon with the Client. TESEM shall not be liable for damage due to insufficient packaging if such packaging has been requested or accepted by the Client or if special transport conditions have not been communicated in advance in writing by the Client to TESEM.
4. PRICES, TERMS OF PAYMENT
4.1 Terms and conditions
Orders are based on the offers in force at the date of the order. Unless otherwise agreed in the written acceptance of the order, all prices of Products are exclusive of duties and taxes. If a discount or any other rebate system is agreed, it shall only be payable if the Client has fully and strictly complied with all its contractual and legal obligations towards TESEM.
Unless otherwise agreed, the prices applied by TESEM are indicated on the quotation and are based on the economic conditions on the day they are indicated.
They may be revised in the event of fluctuations of the factors which together constitute the cost price, these factors include, but are not limited to, the cost of raw materials and components, the impact on TESEM of legal or regulatory changes, taxes, customs duties and transport costs, as well as the cost of insurance.
The price of certain parts is based on minimum quantities according to a scale discussed in advance with the Client. For any order below a minimum quantity, TESEM will automatically invoice the corresponding price according to this scale or, in the absence of a scale, may invoice implementation costs after informing the Client, it being specified that the minimum quantities are established on the basis of continuous production.
The prices invoiced shall be those in force at the time of delivery. In the event, however, that it is impossible to obtain a revised price for any reason whatsoever, TESEM reserves the right to suspend the performance of the order. Prices are calculated net and payable on the date mentioned on the invoice. In any event, the payment period granted may not exceed 60 (sixty) days from the date of issue of the invoice.
Only the receipt of funds in TESEM's bank account shall be considered as full payment within the meaning of these general terms and conditions of sale.
Payment is net of all deductions, withholdings or other charges. Unless otherwise agreed by TESEM and/or indicated in the invoice, the prices of the Products are not subject to any discount or rebate by TESEM. Payment shall not be refused, delayed or interrupted for any reason whatsoever. TESEM reserves the right to make any modification to the clauses of the GTCS deemed necessary depending on the risk levels that the transaction may present.
4.3 Non-payment or risk of non-payment
In the event of late payment of any invoice, TESEM may, in respect of all orders with the Client, suspend the performance of its obligations, terminate all outstanding orders with said Client, and recover the unpaid products and any related documents from the Client without the need for a prior formal notice. All costs and disbursements (including transport costs) incurred by TESEM during the recovery shall be borne by the Client. TESEM may also demand payment of any other invoices which will automatically become due as a result of the delay, with immediate effect without any further formality other than written notification, without prejudice to any damages that TESEM may also claim from the Client as compensation for the harm suffered. In such circumstances, TESEM may require an upfront payment at the time of order or before delivery of any new supply.
5. RESERVATION OF OWNERSHIP
The transfer of ownership of the Products is made upon payment of all amounts due. The Products remain the full property of TESEM until payment is made.
Any clause to the contrary, in particular inserted in the Client's general terms and conditions of purchase, shall be deemed unwritten. By express agreement, TESEM may enforce its rights under this reservation of ownership clause, for any of its claims, on all the Products in the Client's possession, the latter being conventionally presumed to be those unpaid.
In the event of non-payment, and unless TESEM prefers to request full performance of the sale, TESEM reserves the right to terminate the contract after formal notice and to reclaim the delivered Products, with the return costs being borne by the Client and the payments made will be kept by TESEM as a penalty clause.
Similarly, TESEM may unilaterally, after sending a formal notice, draw up or have drawn up an inventory of its products in the Client's possession. This clause shall not prevent the risks of the products from being transferred to the Client as soon as they are delivered to the Client. As from delivery, the buyer is constituted as the depositary and guardian of the said Products.
6. COMPLIANCE WITH REGULATIONS - INFORMATION
The Client, having accepted the technical specifications of the Products, acknowledges having full knowledge of the properties of these Products. It is up to the Client to carry out all useful checks. The Client is solely responsible for compliance with the laws and regulations in force relating to the import, marketing and use of the Products in the country of delivery. The Client is solely responsible for properly informing its own Clients and end consumers about the use of the Products and/or their potential dangers and all the consequences that may result from this.
7. FORCE MAJEURE
Force majeure or fortuitous events are considered to be those unforeseeable events that are beyond the control of the parties and that they could not reasonably avoid or overcome, insofar as their occurrence makes the performance of the obligations totally impossible.
In particular, the following are considered to be cases of force majeure or fortuitous events which relieve TESEM of its obligations to deliver within the time limits initially set: strikes of all or part of TESEM's staff or its usual transporters, fire, frost, storms, floods, war, production stoppages due to fortuitous breakdowns, the impossibility of being supplied with raw materials, epidemics, pandemics and health emergencies, thawing barriers, roadblocks, strikes or disruptions in supply or disruptions in supply due to causes not attributable to TESEM, as well as any other cause of disruption in supply attributable to TESEM's suppliers.
In such circumstances, TESEM will notify the Client in writing within 72 (seventy-two) hours of the date of occurrence of the events, the contract binding TESEM and the Client being then suspended ipso facto without compensation, as from the date of occurrence of the event.
In the event of Force Majeure persisting for more than three (3) months, either party may terminate the order with immediate effect by written notice. The Client shall take delivery of and pay for all Products manufactured up to the date of termination and compensate TESEM for all other costs and expenses already incurred under the conditions of clause 9.
8. WARRANTY - LIMITATION OF LIABILITY
TESEM warrants, to the extent permitted by law and on the terms and conditions set out below, that the Products will conform to the contractual specifications, within the usually accepted tolerances in TESEM's industry sector. The Client shall notify TESEM in writing of any claim under the warranty for apparent defects, prior to any use or transformation of the Products and, in any event, within a maximum period of 30 (thirty) days following delivery. Failing this, the Client will automatically lose the benefit of the guarantee.
Complaints about defects existing at the time of delivery and revealed after receipt of the products must be made by the Client in writing within 3 (three) days of the date on which he/she discovered the lack of conformity. No complaint will be taken into account if it is made more than 30 (thirty) days after delivery of the products.
Defects and deterioration of the Products delivered as a result of abnormal storage and/or conservation conditions at the Client's premises, in particular in the event of an accident of any kind whatsoever, shall not entitle the Client to any guarantee from TESEM.
Under the warranty for hidden defects, TESEM will only be liable to replace the defective Products free of charge, without the Client being able to claim damages for any reason whatsoever.
TESEM's guarantee only concerns hidden defects. As the Client is a professional, a hidden defect is defined as a manufacturing defect in the product that makes it unfit for its purpose and that could not be detected by the Client before its use. A design/conception defect is not a hidden defect and the Client is responsible for any design/conception defect. Furthermore, the Client is deemed to have received all technical information relating to the products manufactured by TESEM. TESEM does not cover damage and wear resulting from special and/or abnormal adaptation or assembly of TESEM products, unless these have been carried out under the supervision of TESEM.
In particular, the following defects are excluded from the warranty: defects resulting from specifications or requirements provided by the Client, defects due to non-compliance with TESEM's specifications and instructions, defects due to normal wear and tear, defects due to storage conditions, defect resulting from modification of the Products or their use by the Client or a third party without prior written consent of TESEM, defect not existing at the time the Product was delivered, defect in a Product which is not intended for sale or any other form of distribution, defect attributable to the design/conception of the end product incorporated by the Client or a third party into the Product or into which the Product has been incorporated by the Client or a third party or in accordance with the instructions of the manufacturer of the end product, non-conformity resulting from the application of mandatory legislative or regulatory rules, defects not reasonably known at the time of manufacture according to the state of scientific and technical knowledge.
TESEM shall not be liable for any parts not delivered by TESEM, in particular for other components used by the Client to be integrated into an assembly. In particular, TESEM shall not be liable if the failure of one of its Products is caused by other components adjacent to or associated with it by the Client or a third party. TESEM does not give any other form of warranty, either express or implied, relating to the Products. The Client shall be liable to and indemnify TESEM against all consequences resulting from third party claims or demands in respect of the Products where the Products have been supplied within the technical specifications of the Products.
8.2 Limitations of liability
TESEM's warranty for hidden defects is limited to the replacement or repair of defective parts, and is limited to the first 3 (three) months of use. TESEM's warranty ceases as of right if the Client has not notified TESEM of the alleged defect within 3 (three) days from the day of its discovery. It is up to the Client to prove the day on which he became aware of the hidden defect. TESEM shall not be liable to the Client for indirect damages, losses, liabilities and other consequential, incidental, indirect and/or immaterial costs and other financial losses or loss of use or image.
9. CANCELLATION OR TERMINATION OF ORDER - TRANSFER OF ORDER
9.1 Cancellation or termination of an order
The cancellation or termination of all or part of any order may only occur with the written consent of TESEM. In the event of cancellation of all or part of any order, the costs and expenses already incurred by TESEM and its subcontractors, such as any products already manufactured or in the process of being manufactured, any components already purchased, shall be paid in full by the Client.
9.2 Order transfer
Each order accepted by TESEM is concluded on the basis of the Client's identity. Consequently, no order may be assigned or transferred, in whole or in part, by the Client to anyone, in any manner whatsoever and for any reason whatsoever, without the express, prior and written agreement of TESEM.
TESEM shall be free to subcontract orders placed by the Client to any third party of its choice and shall be free to transfer orders placed by the Client and the rights and obligations relating thereto to any of its affiliates within the TESEM Group subject to giving the Client reasonable notice.
10. INTELLECTUAL AND INDUSTRIAL PROPERTY
The plans, drawings, sketches, moulds, photographs, manufacturing diagrams, models, specifications, technical and commercial nomenclatures, recommendation documents, test results, catalogues, brochures, notices, patents, models and drawings, notes and generally speaking, all documents, all written or verbal information communicated to the Client will remain the exclusive property of TESEM. Consequently, the Client shall not distribute, use, adapt or reproduce them in any way without the prior written consent of TESEM.
The Client guarantees TESEM the existence of its title to use any design, model, mould, patent, specification or any other industrial and/or intellectual property support that it makes or has made available to TESEM and guarantees the latter against all claims and damages resulting from the alleged or actual infringement of third party industrial or intellectual property rights that could result from the implementation by TESEM of these designs, models, moulds, patents, specifications or any other industrial and/or intellectual property support.
11. REVISION FOR UNFORSEEABILITY
If, as a result of circumstances beyond the control of the Parties, in particular economic, political, monetary, fiscal, commercial, technical or legal circumstances, or events occurring after the signing of the order and/or the contract beyond the control of the Client and TESEM, the structure of the contractual relationship should be modified, rendering the execution of the order and/or contract impossible for the Client or TESEM, affecting the balance of the order and/or contract, the Client and TESEM undertake to consult each other in an effort of good faith to make modifications to the order and/or contract taking reasonable account of the circumstances. In the absence of agreement between the Client and TESEM or in the event of refusal to negotiate by one of the parties, within 30 days of the request for revision, TESEM or the Client reserves the right to terminate the order and/or contract binding them without compensation, by giving three months' notice by registered letter with acknowledgement of receipt. During this notice period, the order and/or contract will continue under the conditions in force on the date of notification of the notice period.
In the event that one of the clauses of the GTCS and/or the order is declared null and void, the other provisions shall continue to be effective.
13. APPLICABLE LAW - JURISDICTION
The applicable law is Spanish law and any dispute relating to the T&Cs will be subject to the exclusive jurisdiction of the Courts of Barcelona, in the jurisdiction of TESEM's registered office, regardless of the place of delivery or even in the event of an incidental claim, third party claim or multiple defendants. However, TESEM reserves the right to refer the matter to any other competent court in order to implement any protective measures that it may take.
The respective representatives of the Client and TESEM certify and confirm that they have the authority and all the powers to undertake and validly represent the Client and TESEM in the context of the orders governed by these GTCS and/or the contract concluded between the Parties.
15. AUTHENTIC VERSION
These GTC have been translated into several languages but the Parties agree that in case of discrepancy the Spanish language version shall prevail and be authoritative.
16. APPLICATION OF THE GENERAL TERMS AND CONDITIONS OF SALE
These GTCS apply from September 1th 2021 to all orders received from the Client and replace the GTCS previously in force.
TESEM reserves the right to modify the GTCS at any time by publishing a new version on its website www.tesem.com and accessible at the following address: (www.tesem.com/company/cgv).