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General Terms and Conditions of Sale
Article 1. General
1.1. These General Conditions of Sale (hereinafter “General Conditions”) are applicable when so indicated in an Offer of Sale issued by APELSA GUADALAJARA S.A. DE C.V. These General Conditions of Sale are applicable together with the conditions of the applicable Offer. In case of contradiction between these General Conditions and an Offer, the conditions of the Offer in question shall prevail. The Buyer´s acceptance of an Offer issued by the Seller shall constitute a waiver by the Buyer of its Conditions of Purchase.
1.2. The following definitions apply to these General Conditions:
1.2.1. The Seller: It shall always be APELSA GUADALAJARA S.A. DE C.V.
1.2.2. The Buyer: It shall always be the customer (company or person) who accepts the Offer by purchasing the products from the Seller.
1.2.3. Contract: Consists of an Offer duly accepted by the Buyer, which is subject to these General Conditions. Where the General Conditions refer to the Contract, this definition shall apply. However, if the parties have entered into a separate written Contract for their business relationship, these General Conditions do not apply unless such Contract so provides.
1.2.4. Product: Consists of the goods, services and/or digital products, which are offered by the Seller in its Offer.
1.2.5. The Offer: Consists of the quotation which is the document issued by the Seller that is subject to these General Conditions.
1.2.5.1. Exchanges of information by digital means, whether by e-mail, cell phone, messages, which are mentioned but not limited to, are part of written and oral discussions to achieve the emission of the Offer of sale and do not constitute Offers.
1.2.6. Acceptance of the Offer: Acceptance of the Offer: The Buyer accepts the Offer by signing it; or, through their conduct the parties have determined other means of acceptance.
1.3. Any matter related to this contract which is not covered by the contract (i.e., the specific conditions of the applicable Offer and these General Conditions of sale) shall be governed by:
1.3.1. The United Nations Convention on Contracts for the International Sales of Goods (hereafter referred to as CISG),
1.3.2. To the extent that the matter is not covered by the CISG, the UNIDROIT Principles of International Contracts 2016 (the UNIDROIT Principles) shall apply on a supplementary basis; and
1.3.3. To the extent that the matter is not covered by the CISG nor the UNIDROIT Principles, Mexican law shall apply on a supplementary basis.
1.4. Any modification to the contract is valid if agreed in writing. However, a party may be precluded by its conduct from asserting this provision to the extent that the other party has relied on that conduct.
1.5. Any limitation to remedies in case of breach of contract shall be ineffective in cases of fraud or gross negligence of the breaching party.
1.6. These General Conditions have been prepared in Spanish and English. Both versions are authentic. In the event of any discrepancy between the two versions, the Spanish version shall prevail.
Article 2. Characteristics of the products
2.1. The parties agree that any information relating to the products and their use, such as weights, dimensions, capacities, prices, colors and other information contained in catalogs, brochures, circulars, advertisements, illustrations, and price lists of the Seller, shall have no effect as contract terms unless expressly referred to in the contract.
2.2. It is agreed that the products are suitable for the purpose for which they are intended by their very nature of which is evident from the contract of sale.
Article 3. Price
3.1. The Price indicated in the Offer (Contract price) includes all the costs which are at the Seller´s charge according to the Contract. However, if the Seller bear any costs which, according to the Contract, are the Buyer´s obligation, such sums shall not be considered as having been included in the Offer.
3.2. If no sales price has been agreed upon, the Seller's price list at the time of conclusion of the Contract shall be used. In the absence of such a price list, the prices generally charged for such products at the time and circumstances when the Contract was concluded using the Seller's currency shall be used.
3.3. Unless otherwise agreed in writing, the price does not include indirect taxes (e.g., VAT, sales taxes, excise duties, etc.), and is not subject to price adjustments.
Article 4. Payment Conditions
4.1. Unless otherwise agreed in writing, payment of the price and any other sums owed by the Buyer to the Seller shall be paid on open account before shipment to foreign Buyers or delivery of the products to local Buyers. Payment, unless otherwise agreed, shall be made by bank transfer to Seller's account.
4.2. Any additional bank charge for the transfer shall be Buyer´s responsibility.
4.3. The Buyer shall be deemed to have fulfilled its payment obligation when the respective sum has been received at the Seller's bank account, and once the funds are immediately available.
Article 5. Interest in case of delayed payment
5.1. If one party fails to pay the sum of money on or before the due date(s) for payment, the other party shall be entitled to charge interest from the date of delay until the payment in question is made.
5.2. Unless otherwise agreed, the interest rate shall be one percent (1%) per month.
Article 6. Contractual terms of delivery
6.1. Unless otherwise agreed, delivery shall be governed by the EXW rule at the Seller's domicile (INCOTERMS 2020).
Article 7. Late-delivery, non-delivery, and remedies
7.1. In case of delay in the products delivery due to the Seller, the Buyer is entitled to claim its accomplishment and payment of damages (equal to 0.5%, or the percentage agreed by the parties, of the price for such products) for each week of delay. The total damages for delay shall not exceed 5% of the price of the delayed products (or the percentage agreed by the parties).
7.2. In case of Seller´s failure to deliver the products on the date when the Buyer has the right to claim the maximum amount of damages under Article 7.1, the Buyer may declare the Contract´s nullity by written notice.
7.3. In case of nullity of the Contract based on Article 7.2, the Buyer shall have the right to claim payment of all duly proven damages, which in total shall not exceed the price of the undelivered products or the maximum amount agreed by the parties.
7.4. In case of delay in the products delivery due to the Buyer, the Buyer shall be obliged to pay all additional expenses incurred by the Seller; including those related to storage, port stay, or any other expenses involved in the export process.
7.5. The remedies under this article exclude any other remedy for delay in delivery or non-delivery.
Article 8. Non-conformity of the products
8.1. The Offer contains all the elements of the products offered by the Seller and accepted by the Buyer.
8.2. Buyer must examine the products as soon as possible after receipt and must notify the Seller in writing of any non-conformity with the specifications in the Quotation, specifying the nature of the non-conformity of the products within a reasonable period of time from the date Buyer discovered, or should have discovered, the non-conformity. In any event, Buyer shall have no right of action for non-conformity if it notifies Seller later than 15 calendar days after Buyer's possession of the products.
8.3. The products shall be considered in conformity with the Contract even if there are minor discrepancies that are customary in the specific trade of such products or through the usual practice used between the parties.
8.4. Where the products are not in conformity with the Contract, the Seller at its discretion may, where it does not require unreasonable delay and does not cause undue inconvenience to the Buyer:
8.4.1. Replace the products with contractually conforming products, at no additional cost to the Buyer; or
8.4.2. Repair the products, if applicable, at no additional cost to the Buyer.
8.4.3. The Buyer shall have the right to charge damages for delay resulting from replacement or repair of the products under Art 7 or under the agreement between the parties.
8.5. If the Seller has failed or refused to properly perform its obligations under Article 8.4 within a reasonable period of time, and the parties have not agreed on a price reduction, the Buyer may invoke the remedies provided for in the CISG taking into consideration the terms agreed in this contract. In respect of damages duly proven by the Buyer the maximum amount is limited to the agreed contract price of the non-conforming products.
8.6. Unless otherwise agreed by the parties in writing, the remedies in this Article exclude any other remedies for nonconformity of the products.
8.7. Unless otherwise agreed by the parties in writing, no action for non-conformity of the products may be brought by the Buyer, either before a court of competent jurisdiction or arbitration tribunal, after one (1) year from the date of receipt of the products or delivery to the place of examination thereof. It is expressly agreed by the parties that after the expiration of such term, the Buyer may not assert the nonconformity of the products, or exercise any counter-argument thereon, in defense of any action by the Seller against the Buyer for nonperformance of this contract.
Article 9. Cooperation between the parties
9.1. The Buyer shall promptly inform the Seller of any claim made against the Buyer by its customers or third parties concerning the products delivered.
9.2. The Seller shall promptly inform the Buyer of any claim which may involve the product liability of the Buyer.
Article 10. Force Majeure
10.1. A party is not liable for a failure to perform any of its obligations so far as it proves:
10.1.1. That the failure was due to an impediment beyond its control, and
10.1.2. That it could not reasonably be expected to have taken into account the impediment and its effects upon its ability to perform at the time of the conclusion of the contract, and
10.1.3. That it could not reasonably have avoided or overcame the impediment or its effects.
10.2. A party seeking relief shall, as soon as practicable after the impediment and its effects upon that party´s ability to perform become known to it, give notice to the other party of such impediment and its effects on that party´s ability to perform. Notice shall be given when the ground of relief ceases.
Failure to give either notice makes the party thus failing liable in damages for the loss which otherwise could have been avoided.
10.3. The granting of relief mitigates the party that failed to comply with its liability for damages, penalties and other contractual sanctions, from the obligation to pay interest on monetary debts as long as the impediment and its effects subsist.
10.4. If the grounds of relief subsist for more than three (3) months, either party shall be entitled to declare the contract to be avoided without previous notice.
Article 11. Resolution of disputes
11.1. All disputes arising out of or in connection with this contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The seat of arbitration shall be the city of Guadalajara, Mexico. The law applicable to the merits shall be Mexican law. The language of the arbitration shall be Spanish.