Purchase terms and conditions

KIVNON LOGISTICS, S.L.S GENERAL PURCHASE TERMS AND CONDITIONS

1. ACCEPTANCE OF THE TERMS AND CONDITIONS

1.1 These purchase terms and conditions exclude any others. Accepting the supplies or services, and even paying for them, does not mean that the Supplier’s sales terms and conditions are accepted.

1.2 The product purchases shall be governed by these General Purchase Terms and Conditions for all purposes, and any others not expressly agreed by KIVNON have no value. All the terms and conditions expressly accepted by KIVNON in the bid for or acceptance of the order and which, consequently, constitute its specific terms and conditions are excluded.

1.3 The Supplier irrevocably accepts the General Purchase Terms and Conditions and our specific terms and conditions, even if they contradict the Supplier’s general and specific terms and conditions.

1.4 The Supplier’s general and specific terms and conditions are not binding upon KIVNON, unless KIVNON has expressly accepted them in writing.

1.5 If the Supplier sends the merchandise after receiving the order which includes these general purchase terms and conditions, this means that it accepts and agrees with them for all purposes.

1.6 It is assumed that any persons acting on behalf of the Supplier, whether they are managers, collaborators, etc., are its representative and have sufficient powers to act as such and bind them.

1.7 KIVNON’S intermediaries, agents or experts are not authorised to carry out acts which bind it, unless their bids are confirmed in writing by KIVNON. 

2. SCOPE AND DELIVERY OF SUPPLIES AND/OR SERVICES

2.1 The information about the bids, prices and delivery deadlines is not considered to be a contract, unless KIVNON has expressly accepted the bid.

2.2 KIVNON’S orders must clearly specify the scope of the purchase or service provision, including only the purpose of the order.

2.3 Any changes to the orders must be made in writing, conditional upon KIVNON accepting this. Changes resulting from amendments to the applicable legislation, rules and regulations after the corresponding order is accepted are also considered to be changes; if those amendments impose additional or more onerous obligations on KIVNON, it is entitled to withdraw the order made to the Supplier, without this constituting a breach.

2.4 The partial supply or execution of the merchandise or services requested from the Supplier shall not be accepted, unless KIVNON has expressly accepted this. 

2.5 The agreed dates and deadlines shall be binding. The relevant date for complying with the supply or delivery deadline shall be the date on which the merchandise is received at the place expressly stated by KIVNON. If “Ex Works” supply is not agreed (DAP or DDP, 2010 Incoterms), the Supplier must make the merchandise available to KIVNON, taking into account the deadline agreed with the carrier for the loading and shipment. If the agreed dates are not met, the provisions of article 1,124 of the Spanish Civil Code apply. If the Supplier envisages difficulties in manufacturing or previously stocking up the materials, or if there are circumstances which may prevent or impede the supply within the stipulated deadline and/or of the agreed qualities, the Supplier must inform KIVNON of this circumstance duly in advance.

2.6 Accepting the supply or service past the agreed deadline without reservation does not mean that KIVNON waives demanding an indemnity or compensation for the damages caused.

2.7 If the Supplier has to carry out installation or assembly work, unless there is an express agreement otherwise, it shall bear the necessary additional costs such as travel, food and tools. 

2.8 The risk of loss of or damage to the merchandise shall be borne by the Supplier until the merchandise is received by KIVNON or, failing this, by the party expressly designated by the latter for such purpose at the delivery point. 

3. QUALITY

3.1 The supplier guarantees that the merchandise is supplied and/or delivered free of defects and in accordance with the requirements of this agreement. KIVNON’S inspection or payment of the merchandise does not mean that it accepts this or releases the supplier from any of its obligations, representations or guarantees by virtue of this agreement. Likewise, KIVNON reserves the right to inspect the merchandise at the supplier’s facilities before they are delivered. If KIVNON conducts an inspection or test at the supplier’s facilities, the latter must do everything reasonable for it and provide assistance for the safety and convenience of the staff designated by KIVNON for the inspection. The supplier undertakes to immediately inform KIVNON of any suspicions about defects or anomalies which may lead KIVNON not to accept the merchandise delivered.

3.2 If the supplier has ISO certification, this guarantees its compliance with all the obligations arising therefrom, thus reducing the amount of quality control checks required when the merchandise is delivered at KIVNON’S facilities. In that sense, and within reason, the supplier accepts to be audited and be subject to any evaluation request aimed at verifying its obligations. Moreover, the supplier must immediately inform KIVNON of any eventuality which may affect the ISO certification (renewals, cancellations, etc.).

3.3 The supplier cannot make any changes to the merchandise, manufacturing processes, manufacturing places or raw materials without KIVNON’S prior written consent. If changes or modifications are agreed between the parties, any costs incurred in the classification or tests shall be borne by the supplier. If such changes or modifications are made, KIVNON can terminate the contract and, therefore, the supplier is obligated to repurchase the materials as the sales price inventoried by KIVNON and to compensate for the damages caused.

3.4 Any design, manufacturing, installation, delivery or any other obligation which must be made by or on behalf of the supplier by virtue of this agreement must be executed with due diligence, care and good faith. The supplier shall be fully liable for acting in accordance with this.

4. PRICE 

4.1 The bids and lists for the products or services offered by the Supplier shall have fixed prices, which cannot be changed once the bid or order has been made by KIVNON. Notwithstanding the foregoing, a price review will be applicable when there are substantial changes in the prices of the raw materials for the merchandise.

4.2 Unless expressly agreed otherwise, the purchase or service price shall include all the expenses, including transport, packaging, duties, charges, insurance and taxes encumbered on the transaction, except for the value added tax.

5. TERMS OF PAYMENT

5.1 The invoices issued by the Supplier corresponding to the Products supplied or the services shall be submitted to KIVNON when the products are delivered or when the services are completed to KIVNON’S satisfaction.

5.2 The Supplier must state on the invoice at least the number and date of the delivery note, the destination company, the order number and/or the order reference by KIVNON.

5.3 Unless expressly agreed otherwise, the payment shall be made on the 30th of the month 60 days after receiving the invoice.

6. WARRANTY

6.1 KIVNON shall receive the merchandise or products, reserving the right to check, as soon as possible in accordance with its ordinary activity, that there are no deficiencies and that they are correct and complete. Any defects detected shall be notified and claimed by KIVNON. In that sense, the Supplier waives challenging the claims for defects made past the usual deadlines.

6.2 Unless otherwise stated in these Terms and Conditions, the legal provisions on lack of title or latent defects shall be applicable. For such purposes, KIVNON is entitled to choose the type of remedy, and the Supplier cannot refuse the type of remedy chosen by KIVNON, unless it involves bearing disproportionate costs.

6.3 In the event of an emergency and especially when the aim is to mitigate imminent risks or avoid disproportionate damages, KIVNON can eliminate the defects detected, and the Supplier must bear the costs.

6.4 If KIVNON bears the expenses as a result of a defective delivery of the merchandise (transport, labour, travel, material, etc.), they shall be borne by the Supplier.

6.5 In the event of lack of title, the Supplier shall exempt KIVNON from potential third-party claims, unless this is not attributable to the Supplier.

6.6 The expiry period for the rights arising from material defects starts on the date on which the merchandise is received at the facilities stated by KIVNON (transfer of risk).

6.7 If the Supplier complies with its obligation to remedy this with a replacement delivery, the expiry period for the merchandise delivered as the replacement shall start when it is delivered unless, when the remedy is accepted, the Supplier expressly and justifiably states that it has made the replacement delivery only as a gesture of courtesy to avoid litigation or maintain the commercial relations for the supply. 

7. PRODUCT LIABILITY 

7.1 The Supplier shall be liable for the damages arising from the defective products or merchandise supplied by it.

7.2 The Supplier’s liability includes all the expenses and costs incurred, including those generated for the legal defence to exercise legal action.

8. SUBCONTRACTING THIRD PARTIES 

8.1 If the supplier subcontracts third parties, it requires KIVNON’S prior written consent, providing KIVNON with the power to partially or fully terminate the contract and claim an indemnity in the event of a breach. Subcontracting shall not generate any contractual relationship between KIVNON and the supplier’s subcontractors. Subcontracting shall not exonerate the supplier from any of its contractual liabilities or obligations, and the supplier shall assume its subcontractors’ acts as its own vis-à-vis KIVNON; KIVNON can retain the invoices and the payments pending to the supplier and directly pay them to its subcontractors.

9. MATERIAL SUPPLIED

9.1 All the materials supplied by KIVNON shall continue to be owned by KIVNON and they shall be delivered for deposit. The supplied materials cannot be delivered or assigned to third parties or used for purposes other than those stated in the purchase order.

9.2 The supplier hereby undertakes to maintain the supplied materials in good condition and separate them from its own assets and identify them as KIVNON’S property.

9.3 The supplier shall insure the supplied materials against all the risks of loss or damage for an amount equal to the replacement cost, stating KIVNON’S interest in the policy and designating it as the beneficiary.

9.4 Once its contractual obligations are met, or when this is stated by KIVNON, the supplier must return the supplied material in good condition to KIVNON.

9.5 When KIVNON needs to review the inventory of the supplied material at the supplier’s facilities, the latter must provide access to the staff authorised by KIVNON to carry out this task.

10. PRODUCT EXPORTS

10.1 The Supplier undertakes to respect the legal provisions for export control enacted by the United States of America and by the European Union and its member states. 

11. FORCE MAJEURE

11.1 The following, among others, shall be considered to be force majeure events: a) Natural phenomena with catastrophic effects such as seaquakes, earthquakes, volcanic eruptions, ground movements, sea storms, flooding and similar. b) Wars, riots, revolutions and/or serious breaches of the peace. c) Fire, explosions, destruction of machinery or other type of installation. d) Industrial disputes such as strikes, lockouts, production stoppages and occupation of facilities. e) Revocation or annulment of permits, lockouts or mandatory closure of all or part of the company.

11.2 KIVNON shall not be obligated to accept the delivery of the merchandise or services made while the force majeure events stated in section 8.1 continue. Likewise, KIVNON can annul all or part of the contract while those circumstances continue and in the week after they end, provided that the duration of such circumstances is relevant and the supply needs are considerably reduced as a result of receiving supplies from other Suppliers which are required for those purposes.

12. TERMINATION AND WAIVER

12.1 In addition to the general reasons for termination as a result of the applicable breaches and, where applicable, of the hidden faults or defects in the item supplied, KIVNON can waive or terminate the contract in the following cases: a) If a certain threat or risk that a fundamental deterioration takes place or exists in the Supplier’s financial relations which may lead it to not comply with the supply arranged. b) If the item or merchandise delivered is partially or completely lost before delivery, even due to an unforeseen accident or an accident not attributable to the Supplier. In any case, in the event of a partial loss, KIVNON can, at its discretion, pay the price and keep the merchandise received. If a service provision is arranged, this clause shall apply. c) In accordance with the clauses of these general terms and conditions.

12.2 In the event that the delivery deadline or service provision is not complied with, KIVNON can demand that the contract be complied with or terminated; in both cases, it can demand an indemnity for the damages caused as a result of the delay and/or non-compliance.

13. OCCUPATIONAL SAFETY

13.1 The people allocated by the Supplier to carry out the work at KIVNON’S facilities must comply with all the applicable occupational safety legislation in force, and KIVNON shall be exempt from all types of liability in the event of work accidents suffered by them at its facilities.

14. CONFIDENTIALITY

14.1 All KIVNON’S documentation to which the Supplier has access shall be considered to be Confidential Information. That documentation can include commercial secrets, systems, software and hardware, concepts, designs, configurations, schedules, costs, operating characteristics, specifications, techniques, material protected by copyright, patented or patentable inventions, plans, methods, drawings, data, tables, calculations, documents and other written material, texts explaining computer programs, flow charts, source and object codes, business and marketing plans, information about transactions and agreements, objectives, client locations and data.

14.2 The Confidential Information shall be provided and/or revealed by KIVNON within the framework of the contractual relationship arranged with the Supplier, where the latter must take all the necessary precautions to safeguard and maintain the corresponding duty of secrecy and confidentiality. This means that the following obligations, inter alia, must be complied with: a) Duly maintain the confidentiality of the Confidential Information, protecting it with the same level of care as its own Confidential Information which, in any case, must be diligently. b) Use the Confidential Information only for the purposes described in the Agreement arranged or for other purposes expressly arranged by the parties in writing. c) Not to copy or reproduce in any way whatsoever the Confidential Information, unless this is expressly necessary in accordance with the purposes pursued, and not to allow or order any third party to do this without prior written consent from the party delivering the Confidential Information. d) Immediately notify the party delivering the Confidential Information that the party receiving the Confidential Information has received a legal, administrative, governmental or other type of request to deliver all or part of that Confidential Information, enabling the party delivering the Confidential Information to adopt the corresponding measures at its cost. e) Return the Confidential Information when the party delivering it requests this.

14.3 The parties expressly agree that, once the relationship has terminated for whatever reason, the Supplier must return any documentation, publication, material or background comprising the Confidential Information. Likewise, the confidentiality obligations shall remain in force indefinitely once the relationship has terminated.

14.4 The products or services developed by the Supplier based on the data, designs, drawings, scale models and similar owned by KIVNON cannot be used by the Supplier for its own use or offered or supplied to third parties. 

15. SEVERABILITY

15.1 If some or all of the clauses of these General Purchase Terms and Conditions or of the contracts between the parties referred to in these Terms and Conditions are null and void or annullable, by virtue of the applicable law they shall be omitted from them without this affecting the validity of the other provisions.

16. NOTIFICATIONS

16.1 Any notifications related to this Contract shall be stated in writing through any valid means which record their reception date, content and addressee. The documents related to this Contract and the notifications made shall be drafted in the Contract’s language.

17. APPLICABLE LAW AND COMPETENT JURISDICTION

17.1 The law applicable to these general terms and conditions and any controversies related to this contract shall be Spanish law, excluding the conflicting provisions and the Hague Convention Relating to a Uniform Law on the International Sale of Goods, the United Nations Convention on Contracts for the International Sale of Goods and other Conventions.

17.2 Any other controversies arising from this contract shall be submitted solely to the jurisdiction of the Barcelona courts.

17.3 In the event of any discrepancy between the Spanish and the English version of this Memorandum of Association, the Spanish version shall prevail.   

LAW AND JURISDICTION