1.1 These General Sales Conditions (“GSC”) shall govern all purchase contracts of Products entered into by and between SELLER and the BUYER, be it a private individual or corporate entity, acting within the bounds of a business or professional activity (the “Buyer”). The establishment of conditions and business agreements other than this one will not apply, and in any event, it would require an express written agreement by and between the Buyer and SELLER.
1.2 The Buyer acknowledges that the GSC have been made available to him validly by SELLER prior to executing the purchase contract; “Contract” shall mean the purchase order issued by the customer to formalize the sale of Products by SELLER. Issuing an order to SELLER implies a full understanding without reservations by the Buyer of the validity of each and every one of the terms of these GSC, which will be deemed automatically and validly incorporated into the purchase contract and will be part and parcel thereof with no need to include them in writing.
2.1 Customers may place orders by phone, e-mail or through an SELLER sales representative (“Seller”) by following the sales procedures set forth by SELLER.
2.2 Before an order can become firm, it must be expressly accepted by SELLER that will send the respective confirmation of the order, sent to the Buyer’s designated e-mail address or by whatever media SELLER chooses, and the order will bind both parties as of that moment. Reception of Products delivered shall also constitute tacit acceptance of the order.
2.3 SELLER reserves the right to not accept orders for less than the amount and volume agreed to with the customer.
2.4 Once SELLER has accepted and confirmed the order, it will be irrevocable, and the purchase agreement closed. Given the business nature of the purchase regulated by these GSC, the Buyer expressly waives the right to terminate the contract. The Buyer must request in writing any changes that he/she wishes to make to an order previously accepted by SELLER and give justification thereof. SELLER has the discretional authority to approve or reject said changes.
2.5 If Products ordered under this Contract have not yet been delivered or credited, the Contract shall be terminated automatically and immediately if the Buyer is declared bankrupt, is subject to judicial proceedings, a receiver or custodian is appointed or other measures to protect creditors are requested under applicable laws.
3.1 Orders will be delivered on the agreed dates to the extent possible. The delivery dates given by SELLER will always be estimates, without prejudice for SELLER making its best efforts for Products to be shipped and delivered on the dates requested by the Buyer. Agreed delivery dates are not binding. If a delivery is delayed, the Buyer shall give the Seller written notice and offer a reasonable timeframe for complying with their agreement.
3.2 Unless agreed otherwise in writing, deliveries shall be EXW loading dock according to 2010 Incoterms ®.
3.3 Product delivery will be subject to SELLER ’S effective supply availability. As long as Products are available, SELLER will provide them within the agreed timeframe stipulated in the agreement or confirmed order with the Buyer. In the event the delivery time is changed, SELLER shall inform the Buyer about the new estimated delivery date.
3.4 Product or merchandise delivery may be suspended or cancelled by SELLER without any liability on its part until it receives payment for said Products from the Buyer or if the Buyer has defaulted on the payment dates set forth in the line of credit he/she has with SELLER .
3.5 The Buyer shall be deemed to having received the ordered merchandise when there is proof of delivery thereof at the destinations specified in each order. The Buyer shall give SELLER notice of any delay of delivery as soon as possible.
3.6 Ownership of the Products sold will pass on to the Buyer with the delivery thereof at the agreed delivery destination.
4.1 SELLER will assume the risk until the merchandise is placed at the Buyer’s disposal; at that time risk will be transferred to the Buyer.
4.2 SELLER assumes transportation expenses of the merchandise, only by the order according to section 3.2.
4.3 Products are meticulously examined prior to being packed and delivered by SELLER to the carrier. Any defects or breakage suffered by the Products during transportation are at the carrier’s expense and the Buyer should inform SELLER in writing about any such defects as soon as possible pursuant to the provisions of this Contract, prior to receiving or admitting the Product without reservations.
4.4 In any event and for all effects, the Products will be deemed received and accepted by the Buyer if he/she when received.
5.1 SELLER oversees that Products delivered to its customers and purchasers are consistent with the specifications and quality mentioned on the Product label.
5.2 The Buyer is responsible for inspecting the Products at the time they are received. The Buyer shall give notice of any defects or complaints at the times specified below so that SELLER may take proper measures if they are true and proper.
5.3 In the event of a defect or complaint about Products whose characteristics may be observed or detected by sight (e.g. damaged packaging, underweight, damaged Product), the Buyer shall have one calendar day to report any such claim in writing or e-mail to SELLER.
5.4 In the event of a defect or complaint about physicochemical or microbiological characteristics or incidences of physical harm caused by the Product, the Buyer shall have 7 calendar days to report any such claim in writing or by e-mail to SELLER but must attach the respective lab test results to the claim.
5.5 If the Buyer fails to give SELLER notice of any complaint or claim at the time he/she receives the merchandise or in writing within the timeframes provided in the above subsections 5.3 and 5.4, it will be understood that the merchandise has been received and accepted in agreement.
5.6 Once SELLER has evidence of the existence and responsibility of the defect notified by the Buyer, SELLER will proceed at its discretion to replace or repair the merchandise, or if this were not possible or would create an unreasonable burden to the Buyer, it would offer the possibility of choosing to terminate the Contract with a complete return of the Product or to lower the price of the defective merchandise. This kind of solution will be the Buyer’s only recourse if he/she is not in agreement with the merchandise; therefore, any other actions by or rights of the Buyer against SELLER are hereby expressly waived.
5.7 Under no circumstance will SELLER be liable for damages inflicted in its own merchandise, to other goods or other people as the result of the improper use, utilization, application, storage and/or transportation of its Products (since as manufacturer there is no way it can control such acts), or for any modifications or alterations made to the Products by the Buyer or in cases of force majeure or any other circumstances beyond the control of SELLER .
6.1 The package label specifies the usage and use restrictions of the Products that should be followed by the Buyer and any successive purchasers. By using the Products, the Buyer and any successive purchasers confirm their commitment to abide by said restrictions. The Intellectual Property of the Product and its packaging are proprietary to SELLER and its affiliates and are protected by industrial and intellectual property rights.
7.1 The applicable prices are those in effect at the time of the purchase according to the rates set forth by SELLER and/or agreed to by both parties in an annual contract or in the purchase orders. The Seller reserve the right to change prices from time to time without prior notice thereof.
7.2 Payments will be made to SELLER pursuant to the terms agreed to in the respective invoice, or in absence thereof as provide in a written agreement between SELLER and the customer.
7.3 All payments will be made by bank transfers and the Buyer will be given the bank information. At the time he or she enters into a contract with SELLER, He or she shall sign a generic bank debit payable to SELLER. Each time the Buyer sends a new order to SELLER and it is accepted, the Buyer expressly authorizes SELLER to submit the invoice for the respective order and the amount thereof will be paid to the bank account designated by SELLER for the exact amount expressed in the order confirmation received from SELLER.
7.4 Expiration date means the date set forth in the respective invoice or the one established pursuant to the Buyer’s line of credit for this purpose. If the Buyer makes a payment after the expiration date, he/she shall pay SELLER, without need of a demand of payment and starting as of the expiration date, default interest of 1.5% a month will be charged on the daily unpaid balance. Said interest will accrue as the default date until the date payment is made. Default interest will be calculate based on the days effectively transpired in a three hundred sixty-five (365)-day year. The Buyer shall also assume financial expenses, legal expenses and bank fees caused by the default or as required to collect the overdue payment, whether by judicial or out-of-court means. Payment of said interests will not release the Buyer from his/her obligation to make the rest of the payments under the agreed conditions.
7.5 Upon a breach of the Buyer’s payment obligations with SELLER, SELLER shall be entitled to cancel some or all of the Purchase Contract, to collect of damages and collect default interest until the effective payment date.
8.1 The Seller retains title to the Products or any derivatives thereof that have been delivered until the Buyer has fulfilled all its obligations with the Seller as provided in these General Sales Conditions associated with the delivery of the Products.
8.2 Products delivered by the Seller and subject to retention of title will be stored or used in such a way as to guarantee the quality thereof as well as the identification of the Products as the Seller’s property.
8.3 Products delivered by the Seller and subject to retention of title may be resold or used by the Buyer in the normal course of his/her business. In the event of resale, the Buyer must agree to the retention of titles to the Products with his/her customers.
8.4 The Buyer may not pledge or encumber the Products in any way.
9.1 SELLER will not accept returns from delivered orders unless provided otherwise in writing in the specific conditions and as agreed to by SELLER and the Customer or in the cases mentioned in subsections 5.3 and 5.4 hereof, provided that SELLER has been notified of the claim properly in a timely fashion and the claims are proper, and SELLER has proof of the existence of such defects and its liability.
10.1 SELLER will not accept liability for damages caused by a shortage of the Products it provides. Any claim of damages and losses by the Buyer to SELLER for a breach of SELLER ’S contractual obligations is expressly precluded when there is no serious fault or malice. SELLER ’S contractual liabilities will be limited to the purchase price of the Products. SELLER will not be liable in any way for indirect damages, including but not limited to special, incidental or consequential damages or lost profits.
10.2 The liability limitations set forth in this Article 10 shall prevail over any other contents of any other contractual document that provides otherwise or is inconsistent with this Article, except when it limits SELLER ’s liability to a greater extent.
10.3 The Buyer releases and holds SELLER harmless from any or all third party claims regarding damages caused or associated with any of the Products delivered by SELLER , including claims filed against SELLER in its capacity as manufacturer of the Products under any agreement about its liability for defective Products, unless said damage is the result of a malicious or criminal act by SELLER .
11.1 The Buyer is a private individual or corporate entity acting within the bounds of a business or professional activity. Therefore, the identifying and contact information provided by the Buyer or its agents to SELLER to execute and perform the Purchase Contract under these terms and conditions is not deemed personal information according to the Federal Law for the Protection of Data in Possession of Private Companies or Individuals.
11.2 Notwithstanding the foregoing provision, to the extent that said identifying and contact information includes personal information (“Personal Information”), the SELLER Privacy Notice shall apply and may be consulted at the SELLER facilities or at its website: http://www.sesajal.com/en/
12.1 All registered trademarks, service marks and logos and any intellectual property included in this Contract, in any document or webpage or on Product packaging (the “Brands”) are registered trademarks proprietary to SELLER / SELLER or to third parties that have licensed their registered trademarks to the SELLER Group. The Buyer shall refrain from reproducing, displaying or using any Brand in any way without the prior written authorization of SELLER. Unless provided otherwise in writing, the Buyer is not authorized to use the registered trademarks or signage or other brands used by SELLER to differentiate its Products from those of other businesses, unless it markets the Products in its original packaging where the registered trademarks, signage, brands and other such indications have been placed there by SELLER . In the event delivered Products are resold, this provision shall apply to the Buyers’ customer and to any such successive buyers. Any breach of this article shall be deemed a violation of the GSC and the Buyer shall be liable for damages.
12.2 Packaging. The Buyer shall not change or remove the registered trademarks, corporate or trade names, labels or intellectual or industrial property rights proprietary to SELLER from the Product without SELLER ’S prior written consent.
12.3 Traceability. The Buyer hereby acknowledges that marketing a Product whose label, lot number or sales date has been removed, erased or altered represents a serious breach of these GSC and the Contract and said Buyer shall indemnify SELLER for any damages or losses inflicted by said breach. Said breach may lead to the termination of this Contract at SELLER ’S sole discretion with no indemnity for the Buyer. The Buyer assumes at his/her expense and risk all the legal, financial and judicial consequences that he or she may face.
13.1 If the Buyer finds a counterfeit version of the Product or detects a violation of SELLER ’S intellectual property, he or she must report it immediately to SELLER by certified mail and shall make said Product available to SELLER.
13.2 The Buyer undertakes to cooperate fully according to instructions given by SELLER, including gathering evidence, in the event that SELLER becomes involved in legal proceedings related to its intellectual property rights.
14.1 The Buyer undertakes to (i) hire only duly skilled and qualified personnel to handle the Products properly; (ii) abide by the safe usage and disposal practices at all times as recommended by SELLER or international associations; (iii) use the Products for the established purposes; and (iv) undertake that the Product will be used in this country unless a different destination is agreed to with the Seller. The Buyer confirms that he/she shall abide by all the local and international laws, sanctions and regulations in effect at all times.
14.2 The Buyer hereby acknowledges and agrees that the Products supplied by SELLER may be subject to applicable laws, regulations, standards and licenses regarding trade sanctions according to the regulatory system of the United Mexican States, including but not limited to those set forth by the United Nations, the United states of America, the European Union and the Member States of the European Union (“Sanction Regulations”). The Buyer shall comply with the sanction regulations and he/she agrees to be responsible for guaranteeing compliance thereof. This includes in particular but is not limited to the Buyer directly or indirectly using, selling, reselling, exporting, re-exporting, disposing of or negotiating in any way the Products to any country, destination or person, and shall endeavor that none of its affiliated businesses does so, without first obtaining an exportation license or government authorization as needed, and he/she shall comply with all the formalities required by the sanction regulations. The Buyer will do nothing that will result in SELLER violating the sanction regulations and shall indemnify and hold SELLER harmless from any fine, losses or liabilities incurred by the Seller as the result of the Buyer’s breach of this Article.
14.3 The Buyer shall hold SELLER harmless from any third party claims or (alleged) damages derived from or somehow related to any of the Products sold by the Seller, including claims filed against the Seller in its capacity as manufacturer of the Products, pursuant to any and all regulations concerning liability incurred by the Product in any country, except for damages caused by the Seller’s or its employees’ malice or gross negligence.
15.1 SELLER will not be liable to the Buyer in any way nor will the Contract be deemed breached due to a delay in compliance or due to a breach of its obligations provided in this Contract if said delay or breach is due to or caused by an Act of God or Force Majeure. An Act of God or Force Majeure is understood to mean any unpredictable cause beyond the reasonable control of SELLER or its contractors that could not have been reasonable foreseen. Said circumstances include but are not limited to the total demand of Products exceeding SELLER ’S total available stock according to usual distribution agreements, changed weather conditions, extreme weather, natural disasters, any government’s laws or regulations, wars or civil unrest, destruction of production facilities or material due to a fire, epidemics, a lack of utilities or public transportation, labor strikes at companies other than the Seller, wildcat or political strikes at the Seller’s company, a general or partial scarcity of required raw Products or other goods or services needed to perform the agreed service, unforeseen delays of deliveries by suppliers or other third parties that the Seller relies on, and transportation problems in general.
15.2 SELLER shall inform the Buyer as soon as possible when a case of force majeure prevents it from supplying the Product or from supplying it in a timely manner.
15.3 Either party shall be entitled to cancel the Contract if force majeure lasts for more than two (2) months. In that case, neither party shall indemnify the other party.
15.4 To the extent that SELLER , at the time a situation of force majeure occurs, has fulfilled some of its obligations towards the Buyer or will fulfill them, and the obligations it has fulfilled or will fulfill have value, SELLER may invoice it separately and the Buyer shall pay for the fulfilled obligations or the obligations that will be fulfilled.
16.1 The Buyer shall keep all information about SELLER ’S Products, know-how, trade and business secrets strictly confidential, notwithstanding that the source of said information has been SELLER or its affiliates or a third party, and notwithstanding that said information has been discovered, developed or created by the Buyer him/herself. Without prejudice for the foregoing, invoice figures and sales promotion measures may not be disclosed to third parties.
17.1 If any of these GSC are declared invalid or unenforceable by any competent jurisdiction, the other parts or provisions will remain in effect. In that case the parties shall make their best effort to negotiate provisions to replace those declared invalid or unenforceable to be able to carry out the intention and purpose of this Contract and the GSC.
18.1 The relationship between the parties shall be governed by California laws. The Buyer and SELLER will expressly and formally submit any questions about the compliance and enforcement of the business relationship to the courts and tribunals of San Diego, California, United States of America and waive any other forum they may be entitled to claim.