Conditions générales d’achat

GENERAL CONDITIONS OF PURCHASE

1. VALIDITY AND EFFICACY

INGEMAT, S.L. (referred to hereinafter as INGEMAT) is a Spanish enterprise based at Zamudio (Biscay), Parque Científico y Tecnológico de Bizkaia, Edif. 201 E-48170; and is active in the field of design, manufacture, assembly and fine tuning of automobile body parts. INGEMAT´s clients are the main Tier-1 OEMs and key players in the automotive sector.
These general conditions (referred to hereinafter as the General Conditions), INGEMAT and the Order issued by INGEMAT comprise the agreement between INGEMAT and the Supplier (referred to hereinafter as the Agreement); and will regulate the execution of each order for the products and/or services between INGEMAT and the Supplier (referred to hereinafter as the Order).
These General Conditions are an essential and inseparable part of the Order issued by INGEMAT. As such, the Supplier may not accept the Order issued by INGEMAT excluding the implementation of the General Conditions, due to the fact that the price and other financial conditions INGEMAT has afforded the Supplier have been based on (i) the validity of these General Conditions; and (ii) the full acceptance of the same by the Supplier with no reservations.
The acceptance of the Order by the Supplier implies the full and unreserved acceptance of these General Conditions, and the waiver of any of the Supplier´s analogue documents.
Any amendment to these General Conditions should be conducted in writing and approved by both parties.

2. PURPOSE OF THE AGREEMENT

The purpose of the Agreement is the purchase of the products and/or the provision of the services defined in the Order issued by INGEMAT (referred to hereinafter as the Products and Services), in accordance with the specifications, scope and limit specified in the Agreement.
The characteristics of the Products and/or Services will be detailed in the Order issued by INGEMAT.

3. EXECUTION OF THE AGREEMENT

INGEMAT will only be bound to Orders submitted on an official INGEMAT Order Sheet issued by personnel who have been authorised for the purpose.
The Agreement will be executed once the Supplier has officially accepted the Order issued by INGEMAT in accordance with the provisions of these General Conditions. Orders should be accepted by the Supplier within 7 calendar days of having received them.
If the Supplier´s response to Orders issued by INGEMAT, intended as an acceptance, contains additions, limitations or other amendments, such additions, limitationsor other amendments will not bind INGEMAT if they have not been accepted by INGEMAT in an individual, specific and written manner.
INGEMAT may, at any time, make non-substantial changes to an Order by issuing a new Order cancelling or replacing the original order, or by expanding it with an
Increased Order. The same conditions established in this document in relation to Orders will apply to Increased Orders.

4. PRICE AND PAYMENT OF THE PRICE

The price of the Products and/or Services and the conditions of payment will be those defined in each case in the Order or Increased Order issued by INGEMAT.
The prices set forth in the Order or Increased Order will include all the items requested, with the exception of any applicable taxes. The price of the Products and/or Services will be fixed and will not undergo any variation during the period in which each Order or Increased Order is valid.
Payment will be effected through a transfer to INGEMAT in accordance with the terms established in the Order or Increased Order issued by INGEMAT, subject to compliance with the conditions agreed upon between the parties and the results of the control of receipt. Payments to be effected by INGEMAT in the month of August will be transferred to the month of September.
INGEMAT may withhold the price and offset it against any debt owed by the Supplier in relation to the Order or arising from any other legal relationship in which the Supplier and INGEMAT are involved as parties. In particular, INGEMAT may withhold the price and offset it against any amounts the Supplier owes INGEMAT in relation to the terms of liability established in Clause 12.2.

5. COMMITMENTS OF THE SUPPLIER

The Supplier undertakes to:
- sell the Products and/or provide the Services specified in the Order; and
- plan a schedule for preparing, finishing and handling the Products involved in the supply thereof and/or the provision of the Services pursuant to the level of quality and by the deadlines defined in the Order.
The Supplier expressly declares to be familiar with the activity conducted by INGEMAT and, in particular, with the strict requirements in that sector with regard to quality and INGEMAT meeting the deadlines for the delivery of its solutions or products to its clients, as well as the serious consequences in the event that INGEMAT delivers defective solutions or products and/or fails to meet its delivery deadlines due to the non-compliance or poor compliance of the Supplier in the Agreement.

6. SUBCONTRACTING

The Supplier may only fully or partially subcontract the execution of an Order or an Increased Order on the express written authorisation of INGEMAT. Moreover, the Supplier will be fully liable for the performance of subcontracted companies.

7. FREE ACCESS

Personnel assigned by INGEMAT will have free access to the premises of the Supplier and subcontractors in order to inspect the work allocated. This right of INGEMAT will neither affect the liability of the Supplier defined in Clause 12 below nor exonerate the latter in any form whatsoever.

8. DELIVERY. TRANSFER OF RISKS. COSTS

The delivery of the Products and/or the provision of the Services by the Supplier to INGEMAT will be conducted on the date and at the location specified in the Order. Unless specified otherwise, the material will be delivered to the premises of INGEMAT.

INGEMAT reserves the right to alter the schedule, time and location of the delivery and/or provision established when circumstances arise that demand such a measure or make it advisable.

All Products supplied will be stored, packaged, loaded and transported in accordance with the terms and conditions specified in the Order, and in the event that nothing has been specified in the Order, in accordance with standard business practices and uses.
No charges for packaging will be accepted, although INGEMAT will return packaging to the Supplier if the latter submits a request in writing prior to the delivery of the merchandise, whereby the cost of returning the goods will be borne by the Supplier.
Unless specified otherwise in the Order, the cost of transporting the Products to their final delivery destination to INGEMAT, and the cost of the respective insurance in relation to transporting, loading and unloading the Products will be borne by the Supplier.
Once the Products have been delivered to INGEMAT at the location and in accordance with the agreed upon conditions, the ownership and risks of deterioration and destruction of the products will be regarded as having been transferred to INGEMAT.
The receipt of the Products by INGEMAT does not imply the acceptance of the quality of the same. The receipt of the Products will be of a provisional nature throughout the verification period, and the return of any products, where applicable, will be at the cost and risk of the Supplier.

9. DELAYS IN DELIVERY OF THE PRODUCTS AND/OR THE PROVISION OF THE SERVICES

The Supplier undertakes to meet each and every deadline specified in the Order. The Supplier and INGEMAT expressly agree that deadlines are essential and should be met with no grace or courtesy period.
The Supplier will be regarded as having defaulted on the date agreed upon compliance with the obligation, with no need for an injunction or summons, except when such a delay is due to facts attributable to INGEMAT or due to force majeure, provided the beginning and end of the delay arising from such causes is reported immediately by the Supplier to INGEMAT in writing at the time it occurs.

Any delay in the delivery of the Products (including the partial delivery of the Products ordered) and/or the provision of the Services will entitle INGEMAT to cancel the Order without INGEMAT having to any submit judicial or extrajudicial notification to the Supplier.
Moreover, any delay in the delivery of the Products (including the partial delivery of the Products ordered) and/or the provision of the Services will result in an automatic daily default penalty in the form of the following fines, in accordance with percentages to be calculated over the amount of the Order or the Increased Order and up to a maximum of 15% of that amount:

AMOUNT OF THE ORDER PENALTY (%) PER DAY OF DELAY

Up to € 600 2%

From € 600.01 to € 3,000 1%

From € 3,000.01 to € 6,000 1%

Above € 6,000.01 0.5 %

The penalties established in relation to non-compliance with the obligations in connection with the Agreement will be of an automatic nature, and may be implemented by INGEMAT without any need to notify the Supplier beforehand.

Furthermore, any such penalties will have a strictly penal purpose, and will not exclude the right of INGEMAT to be indemnified by the Supplier for any loss and damages caused. In particular, and without prejudice to any other series of loss and damages, the Supplier will be liable and will indemnify INGEMAT for the loss and damages specified in Clause12.2 below.

If, for any reason, the Supplier is unable to execute all or part of an Order, it should: (i) notify INGEMAT immediately on becoming aware of the cause of the problem; (ii) guarantee INGEMAT that another supplier will handle the Order; and (iii) specifically accept liability for any additional expenses, penalties and loss and damages INGEMAT might suffer in relation to hiring such services from third parties and due to the delays undergone by its clients.

10. QUANTITY AND QUALITY OF THE PRODUCTS AND/OR SERVICES

Guarantee
The Supplier guarantees that all the Products supplied and/or the Services provided to INGEMAT: (i) will be adapted to the Order issued by INGEMAT; (ii) will comply with all the standards applicable to the Products and/or Services at the time; (iii) will feature the agreed upon quantity and quality; and (iv) will be suitable for the use intended by INGEMAT.
Guarantee period
The Supplier will guarantee the material delivered and/or the Service provided for a period of 2 (two) years from the date of definitive receipt by INGEMAT, without prejudice to undertaking to repair any defects and faults impeding the normal use of the material as quickly as possible, or, where applicable, to replace it.

A new guarantee period will be implemented for any replaced or repaired material as of the date of the definitive receipt of the material by INGEMAT.
Defective Products and/or Services Any Product and/or Service that fails to comply with the guarantees defined in Clause 10.1 will be regarded as defective.

In the event of the delivery or provision of a defective Product and/or Service, INGEMAT may, at its sole discretion, and with no need for any notification or any other formality, take one or more of the following measures:
- accept the defective Product and/or Service at a lower price that that specified in the Order;
- ask the Supplier to repair or replace the defective Product and/or Service with another of the same type and quality as that specified in the Order; and/or
- terminate the Agreement pursuant to Clause 15.

11. INTELLECTUAL AND INDUSTRIAL PROPERTY

The execution of the Order does not imply the assignment, sub-licensing or right to use in general by one party of the brand names, trade names or any other industrial property or intellectual property rights held by the other party.

12. LIABILITY

Without prejudice to the provisions of Clauses 9 and 10 above, the Supplier undertakes, without any limitation, to comply with the requirements set forth in the following paragraphs:

Compliance with regulations

The Supplier will be solely liable for the compliance of its personnel and any individuals or entities employed in the execution of the Agreement, including full-time staff, technicians, suppliers or personnel of any other nature, with all the regulations applicable at the time.

The Supplier will comply with each and every legal labour and social security provision throughout the execution of the Services; the personnel assigned to these Services will be part of its workforce, duly hired and registered in the Social Security system; will be up-to date with all corresponding salaries, indemnities, subsidies and any type of financial compensation arising from the labour relationship existing between the Supplier and its personnel; and will comply with its Social Security payments.

The Supplier should take all the measures for the prevention of occupational health and safety risks pursuant to the legal provisions in force and, although not legally enforceable, should take all the appropriate measures to ensure no accidents occur, no loss or damages are caused to INGEMAT or third parties and no infractions subject to penal or administrative penalties are committed.

INGEMAT may ask the Supplier to provide official documentation with evidence of up-to-date Social Security payments, receipts, settlements and salary obligations or similar. In the event of failure to comply with these requirements INGEMAT may withhold the amount required to the settle the unpaid part from the amount of the payment owed or of the final settlement.

Exclusive liability of the Supplier

The Supplier will be liable for loss and damages of any kind, both its own and that suffered by INGEMAT and/or the end customers of INGEMAT and/or third parties in the execution of the Order, including and not limited to those due to issues in relation to quality and/or failure (or delay) to deliver the Products and/or provide the Services (including partial delivery or provision).

Moreover, the Supplier will be directly and jointly liable for the work executed by the persons or entities it has employed, including full-time staff, technicians, suppliers or any other nature.

The Supplier will hold INGEMAT, in addition to its employees, agents, representatives, directors and partners, harmless in relation to all damages, liabilities, obligations, loss, penalties, default charges, costs and expenses (including, among others, legal fees) arising from any claims, judicial or not, lawsuits or proceedings, administrative penalties, etc. arising from:

(i) any act or omission of the Supplier or its employees and/or suppliers, conducted or incurred, directly or indirectly, in the execution of the Order;

(ii) in particular, any non-compliance incurred by INGEMAT involving its clients when such non-compliance is attributable to the Supplier (including and not limited to those due to issues in relation to quality and/or failure (or delay) to deliver the Products and/or provide the Services (including partial delivery or provision); and

(iii) any loss or damages undergone by the Supplier´s facilities, material, products and personnel as a result of the provision of the Services, in addition to third parties.

With no time limit whatsoever, the Supplier will bear:

(i) all liabilities arising for INGEMAT in relation to any non-compliance incurred by INGEMAT involving its clients or third parties when such non-compliance is attributable to the Supplier; and/or

(ii) all costs incurred by INGEMAT to ensure compliance with the obligations

Consequently, in the event that the non-compliance of the Supplier results in some kind of civil liability for INGEMAT - either contractual or extra-contractual - or administrative, such liability attributed to INGEMAT will always be passed on to the Supplier, with no type of limitation with regard to amount or time.

13. INSURANCE

The Supplier will take out and bear the cost of insurance agreements entered into with well-known and prestigious insurance firms to cover all the standard risks to which it may be exposed throughout the execution of the Order, particularly in relation to issues involving civil liability due to defective products.
The existence of insurance policies under no circumstances whatsoever limits the liabilities undertaken by the Supplier pursuant to this Agreement.

14. WITHDRAWAL FROM THE AGREEMENT

INGEMAT may withdraw from an Order, at no cost or penalty, prior to the Supplier commencing the execution of the same.
In the event that the Supplier has commenced the execution of the Order, the following provisions will apply:

(i) if the subject matter of the Agreement consists of the provision of services by the Supplier, INGEMAT may, at its sole discretion, withdraw from the Order by notifying the Supplier at least 1 month in advance, with no need for just cause or the payment of compensation.

(ii) if the subject matter of the Agreement consists of the purchase of products, INGEMAT may, at its sole discretion, withdraw from the Order by compensating the Supplier for all its expenses incurred and work carried out up to that time.

15. TERMINATION OF THE AGREEMENT

In the event of failure to comply with any of the terms or conditions of this Agreement by either party, the in bonis party may choose between demanding compliance with the Agreement or terminating it with full rights with no prior notice, by simple notification of the defaulting party; with the right to compensation for any loss and damages suffered in both cases.

16. CONFIDENTIALITY

The parties will treat the information received and obtained as a result of entering into or executing this Agreement with the strictest confidentiality.
Notwithstanding the foregoing, either party may disclose such information to the extent that:
- the information needs to be disclosed in accordance with the laws of any pertinent jurisdiction or is required pursuant to any legal proceedings;
- such disclosure should be conducted when any legal, regulatory or governmental body to which either of the parties is subject so requires, regardless of the location and regardless of whether or not the request for information is within the law;
- when the advisors and auditors of either party require such information or when financial entities have a reasonable need to access the same, always provided they are obliged to guarantee the confidentiality of the information received pursuant to their legal status or an agreement;
- the Supplier has provided its prior written consent for such disclosure (in the case of disclosure by INGEMAT) or INGEMAT has provided its prior written consent for such disclosure (in the case of disclosure by the Supplier), as applicable; or
- such disclosure needs to be conducted to enable the party in question to enforce the rights granted under this Agreement.
The obligations arising from this Agreement will still remain in force once it has been terminated.

17. FORCE MAJEURE

For the purposes of this Agreement, events classified as force majeure will be those it is impossible to foresee, or, when foreseen, were inevitable, in accordance with the meaning given to the expression in article 1.105 of the Civil Code.
Such causes beyond the control of INGEMAT and the Supplier include, but are not limited to, fires, strikes held by the party´s own employees or hired workers, uprisings and riots.

18. NULLITY

The agreements and stipulations of these General Conditions are regarded as independent in themselves, whereby in the event that any provision is declared invalid or null and void, only the Clause in question will be excluded, and all the other provisions will remain in force.If necessary, the part of the Agreement not affected by the invalidity, nullity or exclusion will be integrated in accordance with the provisions of article 1.258 of the Civil Code and other applicable provisions with regard to interpretation.
Moreover, if as the result of a mandatory law or provision the terms established in the Agreement are to be regarded as amended, only that which is strictly incompatible with the new applicable regulations will be regarded as amended, whereby the rest of the agreed upon terms will remain unaltered and in force.

19. SOLE AGREEMENT

This Agreement replaces any other previous contract between INGEMAT and the Supplier, both oral and written, in relation to the subject matter of this Agreement; any documentation INGEMAT and the Supplier have exchanged prior to the execution of this Agreement (including, but not limited to, the Supplier´s offers); as well as the Supplier´s General Conditions, if they exist, to which INGEMAT will not be subject.
No amendment, alteration or addition to this Agreement will be valid unless it has been signed by both INGEMAT and the Supplier. The approvals and consents established herein should also be issued in writing.

20. ASSIGNMENT

The Supplier may not assign its contractual position or any of its rights and obligations within the scope of this Agreement without the prior written consent of INGEMAT.

21. INDEPENDENT CONTRACTUAL PARTIES

The relationship between INGEMAT and the Supplier arising from this Agreement is one of independent contractual parties. Hence, INGEMAT and the Supplier acknowledge that this Agreement does not create any kind of employment, partnership, agency or franchise, de facto or legal relationship between INGEMAT and the Supplier, whereby neither party may act or deal with third parties as if this were the case.

22. PROTECTION OF DATA

The personal data of the physical entities involved in the signing, management and execution of the Agreement in the name of and representing and/or on behalf of the Supplier will be treated under the responsibility of INGEMAT, for the execution, development, maintenance and monitoring of the legal relationship between the parties and compliance with their applicable legal obligations.
The owner of the personal data may exercise his/her rights of access, amendment, opposition, deletion, portability, limited processing against INGEMAT, by writing to the business address of INGEMAT specified in the header of these General Conditions.
The legitimate reasons of the described treatment are: (i) the execution and control of the contractual relationship between INGEMAT and the Supplier; and (ii) compliance with legal obligations to which INGEMAT is subject.
This personal data will be processed throughout the period in which the Agreement is valid and for a maximum period of 6 (six) years after the termination of the Agreement, with the sole purpose of compliance with any applicable law. Furthermore, the Supplier´s legal representative is hereby informed that he/she may submit any complaint or request in relation to the protection of personal data to the corresponding Data Protection Authority.
The Supplier undertakes, prior to providing INGEMAT with any personal data on any physical entity involved in the execution and management of the Agreement, to have informed that physical entity of the content set forth in the previous sections and to have complied with any other requirements applicable to the correct provision of his/her personal data to INGEMAT, whereby INGEMAT will not be required to take any additional action in relation to the party involved in terms of information or consent.

23. COMMUNICATIONS

Without prejudice to the special provisions of these General Conditions, communications between INGEMAT and the Supplier in connection with this Agreement may be conducted via ordinary post or electronic mail.
For the purposes of communications, INGEMAT has provided the address specified in the header of these General Conditions, and the following electronic mail address: eseptien@ingemat.com
In turn, the Supplier´s address will be regarded as that or those the Supplier provides in the corresponding purchase delivery note.
INGEMAT and the Supplier may change their communication address subject to notifying the other party with sufficient notice beforehand, using appropriate means and in the manner specified in this Clause.

24. LAW AND JURISDICTION

Both the interpretation and execution of this Agreement will be governed by Spanish law. The implementation of the United Nations Convention on Contracts for the International Purchase and Sale of Goods (Vienna Convention) is excluded.
INGEMAT and the Supplier hereby elect the courts and tribunals of the city of Bilbao to settle any issue or conflict that might arise from this Agreement, with the express waiver of any other, however privileged it may be.

Solutions d’ingénerie pour l’automatisation industrielle