TERMS AND CONDITIONS OF DELIVERY AND PAYMENT OF HELUKABEL MEXICO, S. DE R.L. DE C.V.
1. LEGAL SCOPE
a. These general terms and conditions of HELUKABEL MEXICO, S. DE R.L. DE C.V. (hereinafter "HELUKABEL") exclusively apply to Contracts and deliveries, as well as to information and advice. The Terms shall be applicable to all contractual relationships between HELUKABEL and any natural or legal person engaging in any type of business, operation, and/or transaction (hereinafter the "Client"); b. These terms and conditions shall be binding for all quotations, sales orders, invoices, and/or any other documents issued by HELUKABEL in relation to operations with the Client; c. Unless otherwise agreed, duly signed within the corresponding contract between HELUKABEL and the Client, all prices provided by HELUKABEL to the Client in any of its documents shall be understood as issued in US Dollars, the legal currency of the United States of America. In case the Client makes any payment in Pesos, the legal currency of the United Mexican States, the corresponding payment shall be made according to the exchange rate set by the Bank of Mexico on the day of payment; d. Provisions contrary to the Terms and other specific provisions originating from the Client are expressly rejected by HELUKABEL, therefore, we do not recognize any conditions contrary, divergent, and/or complementary to the Client, unless we have explicitly consented to such conditions in writing; e. By this means, we explicitly reject any incorporation by reference to the Client's General Terms and Conditions or any reference to the General Terms and Conditions of third parties. In particular, we reject the related validity of any individual pre-formulated clause or collection of such clauses referred to by the Client; f. Our general conditions shall apply to all legal claims of the client, regardless of their legal basis; g. Similarly, these Terms and Conditions apply if we provide services with knowledge of any conflicting or complementary clause; h. These Terms and Conditions apply to all types of natural and legal persons recognized in accordance with Mexican and international legislation; i. All negotiated agreements between HELUKABEL and the Client are set forth in this document.
2. CONTRACTING PARTIES
a. For each specific transaction, HELUKABEL only considers the Client (natural or legal person who has directly placed an order and has received confirmation thereof) as the contracting party; b. In accordance with the above section, HELUKABEL provides its services solely to the Client named in the quotation or order confirmation. Any liability towards third parties not named as Clients of the order is explicitly excluded.
3. TELEPHONE AND VERBAL REPRESENTATIONS
a. Verbal communications in person, by phone, or other electronic means are not legally binding; b. The potential Client must specify the object of the delivery in question (e.g., a specific cable construction) in writing and indicate the quantity and details of the delivery (desired delivery time, type of shipment, risk transfer) as otherwise a reliable review is not possible.
4. QUOTATION, RESERVATIONS
a. Quotations made by HELUKABEL are not binding or obligating for the Parties, unless otherwise expressly agreed by them; b. HELUKABEL's quotations are explicitly subject to the availability and existence of the product requested by the Client. HELUKABEL undertakes to promptly inform the Client of non-availability and to promptly refund any consideration already received if applicable; c. HELUKABEL expressly reserves the right of prior sale for all its quotations; d. Quotations are presented subject to the Client being accepted as insurable by the commercial loan insurer; e. HELUKABEL reserves the right to correct errors and spelling mistakes in written quotations; f. Quotations and details in catalogs, brochures, advertising, etc., fee calculations for services rendered, as well as price details, shall not be obligatory nor binding. If the quotation has an expiration date, the quotation becomes void if not accepted within the granted period. In case the quotation does not have an expiration date, any quotation shall be valid until the last calendar day of the month in which it was issued. The quotation may be revoked at any time by HELUKABEL; g. HELUKABEL is not obligated to accept any orders placed after the expiration of the quotation; h. Catalog products are offered solely with the qualities and characteristics indicated in the catalog and in the online product specification sheets, where the online specification sheets reflect the technical state of the qualities governing the quotation. HELUKABEL reserves the right to make technical modifications. Usability and suitability for a specific purpose are not the subject of the quotation; i. Any deviation between the materials ordered or provided in relation to the corresponding purchase order, especially with regard to materials and design, shall be exclusively subject to the scope of technical progress thereof; j. The contract with HELUKABEL is established upon receipt of the written order confirmation and the acceptance of the conditions indicated therein by the Client. Ancillary contracts, modifications, and any other supplements shall only be valid if accepted by HELUKABEL in writing; k. If the order confirmation is not received, the content of the contract is governed by the quotation and these Terms and Conditions; l. In the case of postponed orders or delays in acceptance caused by the Client, HELUKABEL shall be entitled to procure the material for the complete order and/or request immediate production of the total quantity of the order, at HELUKABEL's discretion; m. If the shipment is delayed at the Client's request or due to causes attributable to the Client, HELUKABEL shall be entitled to store the Products, from the expiry of the envisaged delivery date, and to invoice the expenses incurred thereby at 1% (one percent) of the net amount of the invoice for the Products stored for each full week or fraction. This shall not affect any other rights of claim. Furthermore, HELUKABEL shall be entitled, once the deadline has expired, to dispose of the Products in another manner and to redeliver them to the Client after a reasonable period.
5. MODIFICATION, CANCELLATION OF ORDERS
a. Order modifications are only valid if confirmed in writing by HELUKABEL, as well as any additional costs. In case of requesting an order modification, the Client must do so in writing on the same day the order was placed; b. Order modification cancels the original delivery schedule, so HELUKABEL is not obliged to meet the deadlines set prior to the Client's modification; c. The Client does not have the right to cancel an order. Despite cancellation by the Client, HELUKABEL may insist on the acceptance of the delivery of the requested Products and the payment of the full purchase price.
6. PRICES AND COSTS
a. HELUKABEL may demand advance payment. Deliveries to new Clients will only be made against advance payment; b. In the case of international transactions, the Client must, at HELUKABEL's choice, make advance payment without a time limit for payment; c. The prices indicated in quotations and order confirmations are prices according to the Incoterm "EX WORKS," prices do not include packaging, postage, insurance, customs duties, nor shipping costs; d. If required by the Client and agreed with HELUKABEL, any Incoterm (shipping/pickup method) other than "EX WORKS" will be paid solely and exclusively by the Client; e. In the case of orders to be exported outside of the Mexican Republic, the costs of packaging, shipping, loading, and unloading, as well as any customs duties, any type of tax, and applicable fees, shall be borne by the Client. Similarly, the Client shall be solely responsible for carrying out all customs and/or administrative procedures for the export of the products outside of the Mexican Republic; f. In the event that per diems are necessary, the Client shall cover HELUKABEL's personnel with a limited amount to cover their reasonable travel expenses, HELUKABEL is committed to seeking out the most economical options available. For per diem payment, it is absolutely indispensable that HELUKABEL provides the Client with all corresponding invoices and receipts for the aforementioned elements; g. Unless otherwise agreed in writing, HELUKABEL shall bear the costs of transport insurance in accordance with the agreed INCOTERM with the Client; h. Partial payments shall only be permitted if these were agreed at the time the Client ordered said Products; i. Prices do not include Value Added Tax (VAT). VAT will be separately indicated on the corresponding invoice according to the applicable amount on the date of billing. Any tax, fiscal obligation, fee, or charge related that HELUKABEL requires to pay or collect by any government in relation to the services provided; or, the sale, use or delivery of Products will be separately invoiced to the Client and paid by them, unless the Client presents a valid exemption certificate to HELUKABEL before the issuance of the corresponding invoice; j. Unless otherwise agreed in writing between HELUKABEL and the Client, the invoiced amount is payable without deductions immediately after receipt. The Client is in default without prior notice due to non-payment within the agreed period. In the case of legal transactions not involving consumers, HELUKABEL may charge the Client an interest rate of 9% (nine percent). In case of non-payment after the aforementioned deadline, HELUKABEL shall be entitled to terminate these Terms and Conditions and any other Contract it has with the Client without incurring any liability or damages and without the need for a court order, having the right to claim payment of the principal amount, interest on arrears, and the damages caused by the Client, as well as any other action that may be appropriate in its right. HELUKABEL reserves the right to claim higher damages compensation; k. HELUKABEL only accepts interbank transfer or checks with funds that are directly deposited into the bank account designated by HELUKABEL as means of payment. In case the latter are used for payment and are not collectible at the time HELUKABEL executes its collection, they shall immediately incur in default. l. In case of any alteration to the originally agreed conditions for the quantity of Products purchased, HELUKABEL may issue additional invoices covering additional costs; m. The Client is obligated to provide HELUKABEL with the proof of payment in relation to each order. If the Client does not timely submit said proof of payment, HELUKABEL may, but is not obligated to, perform an initial verification to verify correct payment by the Client, in relation to any invoice issued to said Client. In case of no payment found in accordance with the above, HELUKABEL may require payment by adding it to any other new invoice issued to the Client.; n. As long as there are outstanding accounts payable by the Client, HELUKABEL shall not be obligated to carry out deliveries or services derived from current Contracts. In such case, once the payment deadline has elapsed and default has been notified to the Client, any claim of default and/or breach made by the Client resulting from the suspension of the delivery of Products and/or services shall have no legal effect. HELUKABEL reserves the right to exercise the corresponding legal actions, as well as to claim payment of damages
7. DELIVERY QUANTITIES
a. Delivery will be carried out as stipulated in our order confirmation. Partial deliveries are expressly recognized as acceptable.b. The delivery deadline is considered met when it is handed over to the freight agent on time.c. No type of notification or requirement will hold HELUKABEL in breach when the approximate delivery date has not yet been met. Any notification and/or requirement from the Customer must be made in writing only on the day of receiving the order.d. Generally, we reserve the right to deliver 10% (Ten percent), more or less, of the quantity ordered. However, in the case of Customer-specific special cables, this can be more or less than 15% (Fifteen percent) of the quantity ordered. Special cables are delivered in lengths that depend on technical production conditions. Partial deliveries are allowed.e. HELUKABEL's delivery dates are subject to HELUKABEL's processes only. HELUKABEL must promptly inform the Customer if such delivery cannot occur or if it will be delayed. Delivery deadlines will commence upon the Customer's receipt of the order confirmation, but not before all details regarding its execution have been clarified and all other requirements that the Customer must fulfill, in particular, full advance payments or agreed-upon guarantees, have been met.f. If delivery cannot be made due to lack of supply and availability, HELUKABEL may, without the need for judicial resolution, terminate the contract prematurely with respect to the affected Products, obliging only to refund any payment made by the Customer, if applicable. This does not apply when the Customer collects the products on their own, in accordance with the provisions of this clause.g. HELUKABEL's compliance with its delivery and/or service obligation depends on the Customer's timely and proper fulfillment of their obligations. HELUKABEL reserves the rights corresponding to its defense in case of Contract non-compliance. In case of delays in the dates established due to the Customer, regardless of their nature, a new delivery date will be estimated by HELUKABEL.h. In the event of subsequent modifications to what was requested by the Customer and required by the same, HELUKABEL reserves the right to extend the delivery date. This delivery date will be considered met if the object of the delivery was made available at the time of acceptance as stipulated in the Contract, or if the Customer does not accept said Products, the notification indicating that they are ready for delivery, the service was completed if the Products in question are in transit will be used. Delays in the delivery of Products due to force majeure or unforeseeable circumstances that make delivery considerably more complex or impossible for HELUKABEL, not only temporarily, including but not limited to strikes, commercial blockades, epidemics, government decrees at all levels, even if they occur with HELUKABEL's suppliers or subcontractors, shall not be the responsibility of HELUKABEL, even if delivery dates or binding deadlines have been agreed upon. In the event of such events, HELUKABEL shall have the right to postpone the delivery of Products for the duration of such force majeure, as well as a reasonable period of time to restart its operations or even to fully or partially terminate said Contract regarding the pending obligations to be carried out.
i. If HELUKABEL is delayed in the delivery, the Customer shall set a reasonable extension period for HELUKABEL to fulfill its obligations, being a period of at least 14 (fourteen) natural days, unless this period is unreasonable in a specific and justifiable case. If this period passes without success, there will only be claims for damages due to breach of obligations, regardless of the reason.j. HELUKABEL shall be legally liable if the delay in such delivery arises from the culpable breach of a contractual obligation; in this case, the liability for damages shall be limited to the foreseeable losses derived therefrom. When HELUKABEL is at fault, the Customer's claims for delay in delivery are limited to 0.5% (zero point five percent) of the net value of delivery of the Products affected by the delay per full calendar week that does not exceed a total of 5% (five percent) of the net value of delivery of the items affected by the delay in delivery. The Customer shall have no further claims for damages or financial disadvantages to the Customer due to the delay in delivery, in particular, for downtime, business interruption, or loss of profit.
7.1. PRICES OF CABLES AND CONDUCTORS
a. We fulfill orders with a value of USD 100.00 (one hundred US Dollars 00/100 legal currency in the United States of America) plus Value Added Tax plus corresponding shipping costs.
7.2. MINIMUM ORDER VALUE, SURCHARGE
a. HELUKABEL is not obligated to accept orders when the net price is less than USD 100.00 (one hundred US Dollars 00/100 legal currency in the United States of America);b. The Customer agrees that a surcharge of USD 25.00 (twenty-five US Dollars 00/100 legal currency in the United States of America) will be applied for orders within Mexico that fall below the minimum order value.
7.3. CABLE CUTTING SERVICE
a. In the event that HELUKABEL agrees to deliver lengths that deviate from the normal lengths found in inventory, HELUKABEL has the right to apply a cutting surcharge. This surcharge depends on the outer diameter of the cable and is calculated as follows: • Small cuts (<15mm outer diameter) = USD 20 (twenty US dollars 00/100 legal currency in the United States of America) • Medium cuts (>15mm outer diameter) = USD 40 (forty US dollars 00/100 legal currency in the United States of America) • Large cuts (>35mm outer diameter) = USD 60 (sixty US dollars 00/100 legal currency in the United States of America) • Multiple cuts from one drum to multiple rings/spools (e.g. 1x500m to 5x100) = 50% of the cut value according to the outer diameter.
7.4. FREIGHT AND SHIPPING COSTS
a. Unless the Customer and HELUKABEL agree otherwise, all deliveries are in accordance with the INCOTERM "EX WORKS", meaning that the Customer must collect the Products when they are ready, at the address and time indicated by HELUKABEL. In the event that HELUKABEL agrees to make the delivery on its own or through a carrier, all deliveries exclude unloading; we also ship freight collect without unloading.
8. RETURNS, RETURN COSTS
a. The Customer has no right to return defect-free goods;b. Only in exceptional cases and at HELUKABEL's discretion, it declares that it is willing to purchase the items delivered from the Customer, first, the state of the goods will be determined. For this purpose, the Customer will return the goods delivered to HELUKABEL at their expense. The Customer is obliged to clearly label the packaging or transport container of the Product with the sender's name from the outside and, in addition, to clearly indicate the sender and all contact details inside the packaging or transport container;c. After receipt, HELUKABEL will inspect the quantity and condition of the returned Products; HELUKABEL will inform the Customer of the test result;d. HELUKABEL will make an offer to accept the return taking into account
the age and condition in which they were returned;e. If the Customer accepts the return offer, HELUKABEL will credit the Customer's account or execute the corresponding payment;f. If the Customer does not accept the return offer, they must retrieve the Products offered to them at their expense. If, despite the request, there has been no retrieval within 01 (one) month, HELUKABEL has the right to dispose of the corresponding Products and charge the Customer.
9. RIGHT TO REFUSE EXECUTION, PAYMENT WITHHOLDING, COMPENSATION
a) The Customer only has the right to withhold payment when 1) the Customer and HELUKABEL have agreed in writing that the payment made by the Customer will be made overdue and not in advance; and, 2) there is full non-compliance by HELUKABEL with what was agreed between it and the Customer, with respect to this document;b) Compensation is only admissible with respect to claims that are not in dispute or legally determined;c) Any type of claim that is in progress, if resolved either through any mediation or arbitration procedure, or through the corresponding judicial authorities, will be considered as a resolved claim, so compensation will not be applicable.
10. RETENTION OF OWNERSHIP AND PROHIBITION OF RESALE AND PROCESSING
a. HELUKABEL retains ownership of the Products delivered until full and unconditional payment of the invoiced amount for each respective item has been received and accepted;b. In accordance with the above paragraph, the Customer may not resell, use, and/or process the Products until they have provided full payment of the purchase price. This also applies in particular to the Customer's insolvency administrator;c. Actions taken by the Customer that lead to the loss or damage of HELUKABEL's property are grounds for a claim for damages against the Customer;d. The Customer undertakes to immediately inform HELUKABEL of any judicial and/or administrative proceedings carried out by third parties on the property subject to HELUKABEL's ownership. Likewise, the Customer must inform third parties of the ownership of the goods;e. In the event of resale or lease of goods subject to ownership, the Customer now assigns their accrued claims against their customers to HELUKABEL as collateral until their rights to the purchase price have been fulfilled. HELUKABEL accepts these collateral assignments;f. When goods subject to ownership have been processed, modified, or attached to another object, HELUKABEL acquires an immediate ownership interest in the newly manufactured object, which will subsequently be considered as goods subject to ownership;g. If the value of the collateral in the form of claims to be collected exceeds the purchase price claimed by HELUKABEL by more than 20% (twenty percent), then, at the request of the Customer, HELUKABEL will release the collateral proportionally.
11. PLACE OF PERFORMANCE, TRANSFER OF RISK
a. The place of performance is the registered office of HELUKABEL at Lateral Norte de la Autopista 57 México-Querétaro, Exterior Number KM 201+100, Interior Number 67, Colonia La Cañada, El Marques, Querétaro, C.P. 76240.b. HELUKABEL has fulfilled its performance obligation when it has notified that it is ready to ship or has handed over to the carrier.c. Unless the order confirmation indicates otherwise, delivery is agreed upon using the Incoterm "EX WORKS," meaning that the Customer must collect the Products when they are ready, at the address and time indicated by HELUKABEL.d. Unless the parties agree otherwise, the risk of accidental loss or accidental deterioration in the case of sales shipments passes to the Customer at the time of transfer to the carrier.e. The Customer must collect the Products at their own expense. If the Customer does not collect within a maximum period of 5 natural days, they are in default of acceptance of delivery.
12.1. DEFECT CLAIMS, WARRANTY PERIOD
a. The delivered Products are free from defects if they comply with the technical specifications as illustrated in the online specification sheet and catalog.b. HELUKABEL cannot determine, review, and/or guarantee suitability for a particular application or use, nor specific environmental conditions or subsequent effects on an electrical system. Neither suitability for a particular use nor suitability for particular environmental conditions are the subject of the contract.c. If HELUKABEL has made recommendations, such recommendations are conditioned on the completeness and accuracy of the data provided by the Customer, and there were no special circumstances to consider.d. After the delivery of the respective Products, the Customer must inspect them immediately and, if a defect is detected, immediately file a written complaint with HELUKABEL. The written complaint must include the invoice number, article number, and the quantity involved with each individual complaint listed separately. In the case of successive or partial deliveries, each delivery must be inspected and protested individually.e. The responsibility for immediate inspection extends, in particular, to checking the functionality and conformity of the delivered Products with the data provided in the specification sheet and online catalog.f. The responsibility for immediate inspection and filing a complaint applies to each individual processing step. If the Customer does not file an immediate complaint at the respective processing stage, the delivered Products are considered approved and accepted.g. If the Customer does not file a defect complaint immediately, the delivered Products are considered accepted.h. After acceptance, all possible rights of the Customer to demand repair and compensatory damages, regardless of the reasons, are null and void.i. The warranty period is 12 (twelve) months following the delivery of the respective Products.
12.2. CLARIFICATION OF TECHNICAL ISSUES, CUSTOMER'S OBLIGATION TO COOPERATE
a. The Customer must send HELUKABEL samples of the allegedly defective Products so that HELUKABEL can conduct a corresponding analysis.b. Furthermore, the Customer must allow HELUKABEL access to the installation site so that it can inspect the environment and exposure of the delivered Products (heat, voltage, amperage, rectifiers, fuses, etc.).c. Unless HELUKABEL recognizes the defect of the delivered Products, the warranty will be void if the Customer fails to fulfill the aforementioned obligations.
12.3. EXPERT ARBITRATION AGREEMENT
a) If the parties cannot agree on whether the delivered item is defective or not, the parties agree that the disputed facts will be decided with legally binding effect by an expert arbitrator in accordance. The expert arbitrator must be a certified and publicly appointed expert.b) If the parties cannot agree on an expert arbitrator, each party may request the appointment of an expert arbitrator. The expert arbitrator appointed by Mexican authorities can only be rejected if the grounds for rejection correspond to the personal recusal grounds of a judge. The costs of arbitration will depend on who is correct.
12.4. PROCEDURE, CREDIT, RECTIFICATION
a. Generally, the Customer will need substitute goods even before clarifying whether the delivered Products are defective. For this reason, it is customary in the cable industry to deliver replacement goods only against an invoice and not to grant a credit until the facts are clarified and then only to the extent of the actual receipt of the disassembled goods. This procedure arises from the fact that the vast majority of the price is based on the metal content, e.g. copper. HELUKABEL adheres to this general industry custom and will deliver replacement goods only against an invoice;b. Generally, the Customer has an interest in having replacement goods delivered as quickly as possible. For this reason, HELUKABEL is entitled to ensure that other manufacturers deliver equivalent Products as replacement Products that are technically identical in structure;c. No credit can be granted for defective Products that are not returned. This
provision arises from the high value of the metal content (e.g. copper). Furthermore, the failure to return the Products generates a rebuttable presumption that the delivered Products will continue to be used.
12.5. FAILURE TO RECTIFY, PRICE REDUCTION, CONTRACT TERMINATION
a. The Customer is not entitled to a price reduction or to terminate the contract until there has been a failure to rectify;b. HELUKABEL will be granted at least 02 (two) attempts at rectification;c. If the Customer requests a reduction in the purchase price, they must demonstrate to what extent the utility of the delivered Products is impaired by the defect. If the utility of the delivered Products is not technically impaired, no price reduction will be granted;d. The fact that the Products are not labeled with the Customer's name or the name HELUKABEL does not justify a price reduction as it does not affect the technical performance capacity of the Products;e. Normally, the metal component of the delivered Products is not defective, so the value of the metal remains the same. Therefore, any price reduction can only be applied to the price of the item without the surcharge for metal.
12.6. EXCLUSION OF LIABILITY WITHOUT FAULT
a. HELUKABEL is not responsible for paying damages for any defective delivery or performance that is not based on a fault, in particular for any loss of profits, downtime, or compensation for business interruption.
12.7. EXPENSE REIMBURSEMENT
a. The Customer is only entitled to submit an expense reimbursement claim if rectification attempts have failed and HELUKABEL is at fault for the defect of the delivered Products or the failure to rectify;b. If there has been a defect-free rectification, expense reimbursement claims are null and void;c. The Customer agrees that expense reimbursement can only be requested as a substitute for damages instead of performance;d. Only expenses that became useless due to the defect of the delivered Products will be considered as useless expenses. These include, in particular, only expenses incurred in reliance on the delivered goods being free of defects;e. Reimbursed expenses include only costs incurred after receiving the order confirmation that ultimately proved to be useless;f. There will be no expense reimbursement claim to the extent that the Customer anticipated or should have anticipated the performance failure;g. In particular, the right to reimbursement will not apply when it occurs for Products subject to the reservation of self-delivery;h. There will also be no right to expense reimbursement when the expense is significantly disproportionate to the non-performed service. This applies in particular if the Customer could have easily obtained comparable Products from a competitor;i. Claims for loss of profit, production downtime, business interruption, and own labor costs are not within the scope of reimbursable expenses;j. If the Customer has obtained or could have obtained any benefit from their expenses, the right to expense reimbursement will be reduced accordingly.
12.8. DAMAGES TO ANY PROPERTY ELEMENTS OTHER THAN THE DELIVERED PRODUCTS
a. Claims for damages against HELUKABEL for damage or destruction of any property element other than the delivered Products will only exist if it can be demonstrated that HELUKABEL acted intentionally or with gross negligence;b. The Customer is not entitled to compensation for damages if, at the time of the order, they have not informed HELUKABEL that a significant financial loss could occur in the event of a defective delivery. A significant financial loss is an amount greater than USD 50,000.00 (Fifty Thousand Dollars 00/100 Currency of Legal Tender in the United States of America);c. Claims of the Customer based on economic damages, in particular for loss of profit, production downtime, or business interruption, are expressly excluded;d. HELUKABEL is not liable for economic damages attributable to claims made against the Customer by third parties. HELUKABEL is not liable, in particular, for damages whose cause can be attributed to the Customer's waiver of its own Client's obligation to inspect or object immediately or has assumed such obligation on behalf of its own Client;e. If HELUKABEL's liability has been excluded or limited, the exclusion or limitation of liabilities will also benefit HELUKABEL's internal governing bodies, its managers, employees, or indirect agents;f. The aforementioned limitations of liability do not apply to the extent that claims are asserted for death, bodily injury, impairment of health, or inalienable rights;g. The aforementioned limitations and exclusions of liability also do not apply if it is proven that HELUKABEL acted intentionally or with gross negligence.
13. TAX IDENTIFICATION NUMBER
a. All Customers are obliged to provide their Federal Taxpayer Registry (for Customers within the Mexican Republic) or their equivalent Tax Identification Number (for Customers outside the Mexican Republic) when requesting a Product. In the event that a Customer does not provide their tax identification number to HELUKABEL or does so incorrectly, then HELUKABEL will have the right to claim any loss resulting from it. HELUKABEL is not obligated to verify the correctness of the tax identification number.
14. FORCE MAJEURE
a. Neither party shall be liable to the other for the failure or delay in the performance of any obligation under their control, if such failure or delay is caused by fortuitous events or force majeure beyond the control of such party;b. The parties agree that, if during the validity of any transaction, any act or event arises, caused by a situation of fortuitous event, force majeure and/or government act that was unforeseeable and/or inevitable, causing the essential conditions that led to the will of the parties, the Customer and HELUKABEL agree to make their best efforts to jointly agree on new conditions beneficial for the fulfillment of their obligations. If this proves impossible, early termination may be opted for without the need for judicial resolution or liability for either party, provided they are up to date with their obligations to the other party. If the event lasts more than 06 (six) months, HELUKABEL also has the right to terminate the contract.
15. RELATIONSHIP BETWEEN THE PARTIES. ABSENCE OF EMPLOYMENT RELATIONSHIP
a. It is understood that the Customer and HELUKABEL are independent entities, so there is no relationship or dependence, of employment subordination between HELUKABEL and the Customer. Therefore, there is no employment relationship between said personnel of HELUKABEL and the Customer, nor will the latter be considered as a substitute or joint employer of HELUKABEL;b. HELUKABEL and the Customer expressly agree that all personnel used by HELUKABEL for the performance of services are and will be personnel specifically hired by HELUKABEL and since it has the necessary and sufficient elements and resources to fulfill the obligations arising from the employment relationship with its personnel, in terms of Article 13 of the Federal Labor Law, it will be exclusively responsible for the labor and social security obligations arising from the existing relationships with its personnel, such as salaries, indemnities, and professional risks or any other obligation or benefit arising from said labor relationships of the Federal Labor Law, Social Security Law, or any other legal regulation;c. HELUKABEL undertakes to respond directly and to hold the Customer harmless from any labor claim made by the personnel it has hired or assigned in relation to its contractual relationship;d. HELUKABEL reserves the right to subcontract individuals and/or other legal entities for the provision of services on its behalf, undertaking to respond to the Customer on its own for
the responsibilities, damages, and losses that may be caused within the limits established in this document.
16. INDUSTRIAL PROPERTY AND OTHER RIGHTS/CONFIDENTIALITY
a. All documents provided by HELUKABEL, such as tests, industrial drawings, plans, industrial designs, estimates, illustrations, industrial designs, and/or any technical document are the exclusive property of HELUKABEL; for this reason, HELUKABEL is the sole owner of the intellectual property rights over said material. These documents should not be used, duplicated, made available to third parties, and/or disclosed for any reason unrelated to the contractual relationship between the parties and must be returned immediately if requested by HELUKABEL. Likewise, the reproduction of HELUKABEL's Products by the Customer or any third party, with or without the Customer's assistance, will be a violation of this provision. Industrial secrets provided or notified to the Customer in any way may only be used for the purpose specified in the Contract, and their disclosure to third parties is prohibited without the express consent of HELUKABEL. Any intellectual property generated as a result of the provision of services by HELUKABEL will be the property of HELUKABEL unless otherwise agreed in writing with the Customer;b. The Customer is obliged in relation to all knowledge derived or acquired from a requested quotation or Contract as well as all commercial and/or industrial information, especially details regarding HELUKABEL's production processes as well as its facilities acquired by virtue of negotiations and inspections at the plant, including industrial secrets of a commercial or technical nature must be treated with the highest degree of confidentiality. The Customer shall instruct all its staff to maintain such confidentiality at the appropriate level;c. In case of non-compliance with the contents of the two preceding paragraphs, the rights contained in the corresponding legal provisions will be enforced. This implies the exercise of legal actions in favor of HELUKABEL in the civil, commercial, administrative, and criminal legal fields as appropriate;d. In the event that HELUKABEL produces Products for the Customer according to drawings, models, industrial drawings, industrial designs, tests, or other technical documents provided by the Customer or according to production processes requested by the Customer, the Customer will assume legal responsibility for third-party industrial property rights and that these are not infringed by HELUKABEL. In the event that third parties prohibit HELUKABEL from producing and supplying such Products and/or providing services by invoking the existence of industrial property rights over them, then HELUKABEL will have the right to cease any activity within the scope of such Products and to demand damages from the Customer without the need for any legal action. With the disclosure of such drawings, documents, and other elements of industrial property, as well as the results of processing and stipulated formulas, specified materials, etc., the Customer agrees to indemnify HELUKABEL against any legal action taken by any third party who may be directly or indirectly involved.
17. HELUKABEL'S RIGHT OF TERMINATION
a. HELUKABEL shall have the right to terminate the Contract for the following reasons:• If it is determined that, despite being declared otherwise in the Contract, the Customer does not have creditworthiness. The lack of creditworthiness may be assumed in the event that a check is not recovered, as well as the cessation of payments by the Customer or in the event that the Product cannot be recovered from the Customer's premises. It will not be necessary to refer to the relationship between HELUKABEL and the Customer.• In the event that the Customer has provided incorrect information about their creditworthiness and this information is highly relevant;• If the goods subject to HELUKABEL's retention of title are sold under conditions other than the Customer's usual business order, especially if done through an assignment by means of a title or pledge. There may be exceptions if HELUKABEL provides its written approval.
18. CONTRACT LANGUAGE, APPLICABLE LAW, JURISDICTION, AND ENTIRE AGREEMENT
a. Unless otherwise agreed, the language of the contract is Spanish;b. In the event of any dispute, the laws of the United Mexican States will apply, and, subsidiarily, the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) will apply;c. The jurisdiction and venue for all disputes related to these Terms and Conditions will be in the City of Querétaro, Mexico;d. In the event that a provision of the Contract or of these Terms is found to be invalid in whole or in part, then the applicable law will be subsidiary. The validity and scope of the other provisions and agreements will not be affected.