General Purchasing Conditions

1. Scope of application

These General Purchasing Terms and Conditions (“GPTC”), in addition to any update thereof, are applicable to any purchase of materials, items, equipment, products, software or components (“Goods”), and to any request for execution or execution of services related (“Services” jointly “Goods and Services”) from a supplier (“Supplier”) by any company of the Mecalux Group (“Mecalux”). These GPTC are an integral part of any purchase order, order confirmation, request for proposal, quotation or other document issued by Mecalux (“Order”) and in case of conflict in the interpretation or contradiction between documents: (i) the Order shall prevail over these GPTC or any document issued by the Supplier and (ii) these GPTC shall prevail over any terms and conditions set forth in Supplier’s documentation. Supplier shall confirm its acceptance of the Order in writing within a period of five (5) calendar days; after this period has elapsed without a written response from the Supplier, the Order shall be deemed to be tacitly accepted. If the Supplier's order confirmation differs from what is requested in the Order, Mecalux shall only be bound if it expressly accepts said variation in writing. Acceptance of the Order by the Supplier implies acceptance of these GPTC, which shall be deemed incorporated in each Order. Additionally, any commencement or execution of the Order shall imply acceptance of the present GPTC. General terms and conditions issued by the Supplier through any means, such as quotations, contracts, confirmation orders, invoices or any other document, within the scope of the Order, are hereby rejected and shall not be applicable but with Mecalux express and written acceptance.

Any modification to the present GPTC proposed by the Supplier shall apply only if expressly accepted in writing by a representative of Mecalux.

2. Price and payment conditions

Prices in the Order are fixed, final, and not subject to change, unless expressly accepted by Mecalux in writing. Mecalux may set-off any cost or expense incurred due to a default by the Supplier under any Order and/or may withhold payment of any invoice or amount due to Supplier if Supplier fails to perform any of its obligations under any Order or these GPTC. Payment of an invoice by Mecalux does not imply acceptance of the Goods.

3. Delivery conditions and title

Supplier shall deliver the Goods or execute the Services in the agreed dates, quantity, quality and conditions as stated in the Order. Time is of the essence in the delivery of the Goods or execution of the Services; if Supplier fails to execute the Order in full within the agreed deadline and conditions, Mecalux may (i) accept the Order as executed by the Supplier; and/or (ii) terminate the Order and claim compensation for damages, as well as all costs incurred due to non-compliance. Unless otherwise agreed, the Goods must be delivered DDP Incoterms 2020 to the delivery point specified in the Order. Transfer of title to the Goods shall be transferred to Mecalux at the delivery destination or upon payment, whichever occurs first. Supplier represents and warrants that it has sufficient title to the Goods and will deliver them free and clear from all liens, encumbrances and claims.

Supplier shall forthwith notify Mecalux without delay in case there is an actual or potential delay in the delivery of the Goods and/or execution of the Services, including a plan for mitigating any effect.

4. Quality of the Goods and Services

The quality of the Goods and Services shall be according to the Order. Weights, dimensions, capacities, prices, performances, drawings, specifications and all other data included in the documentation provided to Mecalux shall be binding for the Supplier. In any case, Supplier is responsible for the quality of the Goods and Services, regardless of whether they have been manufactured or executed by Supplier or any of its subcontractors. Supplier’s quality system shall be implemented according to the industry standard that may be applicable to the Order.

5. Inspection and acceptance

Unless otherwise, expressly and written, agreed Mecalux shall inspect the Goods and Services upon arrival, or execution in case of Services, at the final destination specified in the Order and shall notify the Supplier of any defect within the following ninety (90) days, including any shipping discrepancies, packing shortages, non-conforming execution, or other non-conformities discovered upon inspection. Failure by Mecalux to notify any claim within the aforementioned period does not preclude Mecalux from issuing a claim later on, including the detection of hidden defects according to applicable Law.

Mecalux may verify the progress and proper performance of the Order by means of the inspections and/or audits it may deem appropriate, and the Supplier shall provide access and the documentary means in its possession.

6. Warranty

The Supplier represents and warrants that the Goods delivered (i) are free from any design, workmanship or manufacturing defect, (ii) conform with the agreed specifications and requirements, including quantity and quality requirements specified in the Order, (iii) are merchantable, appropriate and fit for the purpose for which they are bought, (iv) are new and of high quality and (v) in compliance with all applicable regulations, both national and international; and, regarding Services (vi) will be performed by personnel with the appropriate experience, qualifications, training and education and (vii) with due care, diligence and good practices of first class companies in the sector, following the procedures and specifications applicable to the nature of the Services. In this sense, during a period of no less than one (1) year, unless longer limitation period agreed between the Parties or are prescribed by law, from the date of formal acceptance by Mecalux, or the warranty period of time otherwise agreed on the Order, Supplier is responsible for remedying any defect or non-conformity of the Goods and Services including, at Mecalux’s choice, repairing and/or replacing the Goods as deemed appropriate. The warranty period shall restart from the beginning, since the date the defective Goods or Services are replaced and/or repaired. If, within a reasonable period of time granted by Mecalux, Supplier fails to replace, repair or otherwise remedy any defect at Mecalux’s reasonable satisfaction, Mecalux may, at Supplier’s cost and expense, repair, replace or otherwise remedy.

The warranties and remedies provided in this clause are regardless of any inspection, approval and/or acceptance of the Goods or Services and in addition to any Mecalux’s right to claim compensation for loss, damage and costs, as specified in Clause 13 of these GPTC.

7. Third party rights

Supplier warrants that neither the Goods or Services nor its provision thereof infringe any third-party rights, including intellectual property rights.

8. Force Majeure

Neither party shall be liable if its performance is delayed, prevented or otherwise hindered due to an event that is considered a Force Majeure event according to applicable Law and which could not have been foreseeable on the date the Order is place, nor otherwise avoided. The party claiming the Force Majeure event shall notify the other party within the following three (3) calendar days. If the Force Majeure event lasts longer than two (2) consecutive weeks or three (3) non-consecutive, then either Party shall be entitled to terminate the Order, totally or partially. Upon said termination, Mecalux shall be entitled to recover all payments already made for the Order affected by the Force Majeure event and in exchange, Supplier shall receive the Goods under the affected Order, sharing the costs of returning the Goods.

In any case, Party alleging the Force Majeure event shall have a duty to mitigate its consequences and shall use all reasonable diligence to remove the condition that prevents its performance, not being entitled to suspend performance of its obligations in any greater scope or for any longer period of time than required nor shall be entitled to suspend performance at all if it is already in breach.

Labour conflicts of any kind, lack of transport means, material shortages, and/or subcontractors delays shall only be considered Force Majeure event when of an absolute, unforeseeable and unavoidable nature.

9. Insurance

Supplier shall maintain in force the insurance policies necessary to cover its activities under the Order. At Mecalux’s request, Supplier shall provide copies of the insurance policy and copy of the receipt of payment of the corresponding premium.

10. Termination

If a party is in breach under the Order, the non-breaching party may terminate the Order, partially or completely, after a ten (10) days period since written notice of default without remedying said breach. Upon termination, the non-breaching party may recover, subject to Clause 13, all costs and expenses accrued due to said termination up to the date of termination, including, in the case of Mecalux, the right to be reimbursed any amount already paid for the Goods or Services and/or accepting, at its discretion, the portion of the Goods or Services under the Order that were actually duly performed.

Additionally, Mecalux may terminate the Order for convenience, without further liability, partially or completely, by providing Supplier with a seven (7) days prior written notice and subsequent payment of the reasonable direct and documented costs incurred by Supplier until the date of said formal notice of termination.

11. Confidential Information

All information disclosed by Mecalux to the Supplier, directly or indirectly, is the property of Mecalux, shall be deemed confidential and proprietary and Supplier undertakes to treat said information with the utmost privacy and protection in respect of any third parties, for an indefinite period of time, undertaking not to disseminate, disclose, transmit, share, amend, transform, reveal or publish, even partially, directly or indirectly, the information provided, except if strictly necessary for executing the Order, without the prior written consent of Mecalux.

12. Assignment, Subcontracting and Relationship of the Parties

Supplier may not assign nor transfer any part of the Order. In the event of subcontracting Supplier shall remain jointly and severally liable for the acts or omissions of its subcontractors.

Likewise, the Supplier declares that it is an independent contractor, with no agency relationship between Supplier and Mecalux, nor subcontracting or labour dependence between Mecalux and Supplier's personnel, neither any labour relationship or economic dependence between Mecalux and the Supplier, it being expressly established that payment of salaries, social benefits, safety and occupational risk prevention training, taxes, rights and obligations of Supplier’s personnel shall be under the sole responsibility of Supplier. Under no circumstances shall Mecalux be regarded as the employer of the Supplier and/or its personnel, Supplier shall be the sole responsible for all individual or collective claims that its personnel may file for any reason whatsoever.

13. Liability

Supplier shall indemnify, defend and hold Mecalux, its representatives, employees and affiliates harmless from and against any and all direct or indirect damages or losses, including consequential damages or losses such as loss of profits or clients, costs, expenses, actions, claims, proceedings, fines and penalties arising from any breach of the Order, including representations and warranties.

Except for those cases in which limitation of liability is forbidden, Supplier agrees that in no event, whether as a result of breach of contract or warranty, negligence or any other cause whatsoever, and regardless of the form of legal action or the theory of recovery, will Mecalux or its affiliates be liable for (i) consequential, special or punitive damages including, but not limited to, loss of profits or revenues, loss of use of the goods or any other property, cost of capital, cost of substitute goods, facilities or services, downtime costs or claims of Supplier's clients for such damages, nor (ii) any losses or damages under any claim of any kind in excess of the net purchase price actually paid by Mecalux for the Order regarding the Goods that give rise to the claim.

14. Transport

These GPTC shall also apply, provided it does not contravene special mandatory legislation, to all orders and/or requests for transport and/or logistics services issued by Mecalux to the Supplier ("Transport"), whether as contractual carrier, freight forwarder, NVOCC, logistics operator, actual carrier, customs agent, authorized economic operator or warehouseman.

The Supplier shall be responsible for the goods from loading in the vehicles until their effective unloading and delivery to the final consignee, being obliged to ensure correct execution, supervise and check the loading, unloading and stowage operations; accepting the present condition as an express agreement in this respect.

The supplier accepts that the GPTC shall apply to any request for the provision of transport that Mecalux may send by any means. These GPTC are accepted by the Supplier at the time of accepting to carry out the Transport, regardless of whether or not it signs the transport order that may be issued by Mecalux, and shall take precedence over the content of the BILL OF LADING, SEA WAYBILL, CMR NOTE, NATIONAL ROAD TRANSPORT CONSIGMENT NOTE, RAIL CONSIGMENT NOTE, CIM CONSIGNEMENT NOTE OR AIR WAYBILL of the Supplier or of any third party Supplier may subcontract for the Transport or any other transport document issued in relation to the Transport. The Supplier shall ensure the correct and punctual payment of the third parties it may subcontract for the Transport.

15. Code of Ethics and Anticorruption

The Code of Ethics of Mecalux (“Code of Ethics”) establishes the ethical values and principles through which clients and suppliers, among others, must conduct themselves. The Code of Ethics, as well as any modification and/or update thereof, is available at the Mecalux Code of Ethics page. The Supplier declares to be aware of its content and expressly agrees to comply with it. Mecalux may monitor or audit Supplier’s compliance with the Code of Ethics by, at any given time (i) requesting Supplier the provision of all documentation that Mecalux deems reasonably necessary, (ii) demanding the implementation of any reasonable measures and/or (iii) the execution of any document or anticorruption statement by the Supplier.

16. Personal Data Protection

Mecalux informs the Supplier that personal data provided by any means, from now on, shall be processed in accordance with the provisions of the Privacy Policy that appears on the website managed by the company of the Mecalux Group with which the Supplier contracts and that the Supplier declares to be aware of and accept.

Basic Information about the processing of personal data:

• Data Processor: MECALUX.
• Purpose of the processing: Manage the commercial relationship, adopt the appropriate measures for the prevention of money laundering and terrorist financing and for other purposes indicated in the “Additional Information”.
• Legitimacy: Performance of a contract, the interested party´s consent and the applicable laws.
• Recipients: Banks, Public Administration and other recipients as indicated in the “Additional Information”.
• Rights: Access, rectify, erase, object to the processing and exercise other rights as indicated in the “Additional Information”.
• Additional Information: For additional and detailed information about the processing of personal data, visit the Privacy Policy page.

17. Applicable Law and Jurisdiction

Unless expressly agreed otherwise, the applicable law to the Order shall be the corresponding to the country of the registered office of the Mecalux Group company that purchases the Goods. In case of any conflict in the interpretation of these GPTC or the Order and/or in case of any other dispute that may arise regarding the Order, the Parties shall expressly submit it to the jurisdiction of the courts and tribunals of the city corresponding to the registered office of said Mecalux Group company, expressly waiving any other jurisdiction that may be applicable to the Supplier.

18. Severability Clause

In the event that any clause and/or provision of these GPTC is declared partially or totally null, invalid, illegal or unenforceable, the nullity, validity, legality and enforceability of the remaining provisions shall in no way be affected and/or impaired.

 

[Updated on 5 June 2024]