GENERAL TERMS AND CONDITIONS FOR SUPPLIERS
Fábrica de Municiones de Granada S.L.U.
Ctra de Murcia, 18182 Granada, Spain
ID No. B-88295209 (the “Customer”)
Identification of the partiesThe contractual party receiving the characteristic performance of the contract governed by these General Terms and Conditions for Suppliers (the “GTC-S”) is the Customer.The contractual party providing the characteristic performance of the contract governed by these GTC-S (the “Contract”) is the supplier of goods, services and/or other performance as part of their business activity (the “Supplier”).The Customer and the Supplier together are also referred to in these GTC-S as the “Contractual parties” or a “Contracting party” when mentioned in the singular.Introductory provisions, definitions
The characteristic performance of the Contract is a performance which determines the type and nature of the Contract. It may be any type of goods, service, work, property or non-property rights or other performance which is essential to the existence of the Contract itself (hereinafter referred to as the “Characteristic performance”). Financial transactions, providing cooperation, participation in proceedings and other supplementary performance are typically not considered a Characteristic performance.The Contract as per these GTC-S means any kind of contract with the nature of business customer-supplier relationship, mainly, but not limited to: purchasing contract, contract for works, contract to provide services, licensing contract, various contracts for transferring ownership rights, etc.As per points 2.1. and 2.2. of these GTC-S, where these GTC-S and/or the Contract use the term “Customer”, it shall also mean “purchaser”, “beneficiary” and other titles of the party receiving the Characteristic performance.As per points 2.1. and 2.2. of these GTC-S, where these GTC-S and/or the Contract use the term “Supplier”, it shall also mean “seller”, “contractor”, “obligor”, “provider” and other titles of the party providing the Characteristic performance.Where these GTC-S use the term “Contract”, it shall also mean “order”, “agreement”, “convention” and other titles of a contractual obligation relationship falling under these GTC-S, including so called “innominate” contracts, insofar as these GTC-S are applicable to them.These GTC-S are issued and published by the Customer on the website: www.fmgranada.com. Pursuant to Spanish Law 7/1998, of 13 April, on General Contracting Conditions (Ley 7/1998, de 13 de abril, sobre condiciones generales de la contratación), these GTC-S shall be incorporated into the Contract only if the Supplier has been given a real opportunity to read them prior to contracting and has expressly accepted them, either by (i) signing the Contract, (ii) accepting the Customer’s purchase order or order confirmation that references these GTC-S, or (iii) acceptance by equivalent electronic means allowing evidence of date, content and identity of the accepting party. In case of discrepancy, Clause 2.9 shall apply. Shall these GTC-S not be applicable to the Contract as a whole, mainly due to the nature of the Contract, only applicable provisions of these GTC-S shall be applied. Shall there be any doubt about whether or not a provision of these GTC-S is applicable to a particular Contract, the Contractual parties undertake to adopt an interpretation which favors the application of these GTC-S in that particular case.The Contractual parties agree to exclude the 1980 Vienna Convention on Contracts of Sale.The Contractual parties shall have the right to negotiate their contractual rights and duties differently from these GTC-S. Shall there be any discrepancy between the Contract and these GTC-S, the Contract shall prevail.These GTC-S are bilingual. Shall there be any discrepancy between language versions of these GTC-S, the Spanish version shall prevail.Information on personal data protection is part of Article 11. of these GTC-S.In the case of a Contract with international element, the Contractual parties agree the Spanish law shall be applicable.The Customer may amend these GTC-S by publishing an updated version on the web address referred to in Clause 2.6. Any updated version shall apply only to Contracts and purchase orders accepted after its publication, unless the Parties expressly agree in writing that such updated version shall apply to an ongoing Contract.Subject and concluding of the contract
The subject of the Contract may be any Characteristic performance, mainly, but not limited to: sale of goods, provision of services, performance of works, performance of transport and delivery services, creation of a product, ownership transfer, etc. (hereinafter referred to as the “Subject”). The Supplier provides the Subject to the Customer for a fee. For timely and proper performance of the Subject, the Supplier shall have the right to be paid price agreed in the Contract. For payment of the price and possible deductions from it, relevant provisions of the Contract and these GTC-S shall apply.The Contract may be entered into in writing or by equivalent electronic means, provided that the legal requirements for the validity of a legal act under Spanish law (including consent, object and cause) are met.The Customer shall have the right to require the Supplier to fulfill certain conditions for the Contract to come into force. Such conditions may be mainly, but not limited to: grade and quality of the Subject; specifications of the Subject; requirements for the fulfillment of specific obligations arising from relevant legal regulations; requirements for the method of performance including packaging, transport, way of performing of works and other applicable requirements connected with the Subject; submission of documents proving the Customer’s requirements have been fulfilled; submission of documents proving the Supplier’s abilities, experience and/or qualification; other conditions the Customer imposes on the Supplier before concluding the Contract.Shall the Supplier fail to fulfill his duties as per point 3.3. of these GTC-S, the Contract is not validly concluded unless the Customer agrees on an exception, enabling the Supplier to additionally fulfill such duty. Shall the exception be granted, the Supplier undertakes to fulfill this duty without delay after the exception is granted, but no later than the date he agreed on with the Customer.In principle, a Contractual party is represented by its statutory representative in the process of concluding the Contract. The Contractual parties may deviate from this principle only if the person acting on behalf of the Contractual party, who is not its statutory representative, has all the authorizations necessary for the proper conclusion of the Contract. Shall the representative of a Contractual party act in violation of the instructions given to him by the Contractual party he is representing, and/or exceeded his or her powers, the Contractual party represented by him/her is still accountable to the same extent as if the representative had not exceeded his/her powers unless this Contractual party had demonstrably informed the other Contractual party of the restrictions on the powers of this representative beforehand.Shall there be annexes to the Contract, the following strength of documents shall apply, from the legally strongest document to the legally weakest document, no matter the numbering of the annexes: The Contract; these GTC-S; time schedule of performing of the Contract; mutually signed price provisions; budget; Supplier’s price offer; general terms and conditions of the Supplier. Annexes not listed above (“Other annexes”) shall be legally weaker than annexes listed above. Mutual relationships between Other annexes shall be defined by their numbering, with Other annex with higher number being legally weaker than Other annex with lower number. In particular, any general terms and conditions of the Supplier are hereby expressly rejected and shall not apply, even if referenced in the Supplier’s quotations, offers, order confirmations, delivery notes, invoices or other Supplier documents, unless expressly accepted in writing by the Customer.Time and manner of performanceThe Contractual parties are obliged to perform their contractual duties properly and on time, following all schedules, plans of delivery, time-frames, project documentation, supplying conditions and other documents containing detailed information on time and manner of performance of the Subject. Unless the Contract states otherwise, INCOTERMS 2020 delivery condition DDP (Delivered, Duty Paid) shall apply for delivery of all applicable Subjects.Shall the Contract not specify terms of performance of the Subject, the Supplier shall perform without undue delay.Contractual parties may enter into so-called fixed contract, i.e. Contract with fixed time of performance in which the Supplier’s delay results in terminating the Contract by the Customer. Such Contract has to be duly identified as a fixed contract, e.g. with words “fixed date”, “fix”, etc., and the consequence of termination in case of non-performance of such fixed conditions must be identified expressly as “explicit resolutory condition” in the Contract. In such cases, the Customer shall give written notice of the termination to the Supplier with no further guarantees in favor of the Supplier.The provisions of Article 1505 of the Civil Code (“Real Decreto de 24 de julio de 1889, por el que se aprueba el Código Civil”; hereinafter referred to as the “Civil Code”) with respect to the sale of movable property shall not apply to this Contract. Consequently, failure by the Customer to accept the Subject on the agreed date or failure to pay the price at the same time shall not result in automatic termination of the Contract, unless agreed by the Contractual parties otherwise in the corresponding Contract itself.The Contractual parties undertake to provide each other with all reasonably required cooperation regarding performance of the Contract, so that any problems and complications are resolved without delay and continuous and proper performance of the Contract is not jeopardized. This includes mainly, but without limitations: accepting shipments; due communication with the other Contractual party about arisen problems; attending all kinds of proceedings, controls and meetings; etc. Shall the cooperation cause an unreasonable increase in costs that the providing Contractual party could not have foreseen before concluding the Contract, the Contractual parties shall enter into negotiations regarding reimbursement of such costs. Ongoing negotiations, however, do not authorize the concerned Contractual party to refuse cooperation, shall such refusal cause delay and/or damage.If the nature of the Contract allows the Customer to supervise the performance of the Contract and/or instruct the Supplier as to how to perform, the Supplier undertakes to allow the Customer supervision and/or to follow Customer’s instructions. Responsibility for performance and results of Customer’s instructions shall be borne by the Supplier, unless if the Supplier duly notified the Customer that the Customer’s instructions are faulty and the Customer insisted on implementing them – in such case the Customer shall be held responsible for the consequences of such instructions.If the nature of the Contract requires the Customer to perform concurrent action (e.g. preparation of the site, supplying materials, acceptance of goods, to issue any document, etc.), the Supplier shall not be in delay with performing his duties until the Customer duly and timely performs such concurrence. This shall not apply on such Supplier’s duties that are not connected to agreed concurrence of the Customer.Advance payment, payment of an invoice, or provision of any other financial resources by the Customer to the Supplier or any third party shall not be considered a concurrent action as per Clause 4.7 of these GTC-S, unless specifically stated otherwise in the Contract.In the Contract, the Contractual parties may agree on specific requirements for time and manner of performance, such as milestones, stages, performance of tests, certifications, providing or obtaining necessary documents, licenses and other requirements, regarding the Subject (the “Specification”). Where provided by law or regulation, such requirements may apply without being expressly agreed in the Contract. Shall the Subject include documents, which are to be delivered to the Customer by the Supplier, the Subject is completely performed by the Supplier only after the last document is delivered or the last part of the Subject is performed, whichever is later.Shall any of the documents, that are to be delivered to the Customer by the Supplier together with the Subject, protected by copyright or any other intellectual property right, the Supplier shall be responsible for the settlement of these rights so that the Customer can use these documents without any restriction; otherwise the Supplier shall bear responsibility for any damages incurred by the Customer as a result of the breach of this obligation. The cost of such settlement shall be included in the price, as per point 5.2. of these GTC-S.Considering that the Supplier is a business entity acting with professional care, it is agreed that the Supplier is to be held responsible for fulfilling all legal requirements affecting the Subject, even if these requirements are not expressly stated in the Contract, as per point 4.8. of these GTC-S. This obligation is especially important for regulated Subject, such as supply of defense industry products, cross-border performance, state quality verification, etc. Contractual terms and conditions for the state quality verification AQAP are part of these GTC-S and are published at www.fmgranada.com. The Supplier is obliged to obtain at his own expense all export and import permits, licenses, consents, decisions and other necessary documents so that the Subject is executed properly and on time. In case of delivery of goods that are subject to a notification obligation (such as transfer of defence industry products within the Kingdom of Spain), the Supplier undertakes to fulfill this notification obligation at his own expense. The Supplier also undertakes not to supply the Customer with any Subject under regulation of International Traffic in Arms Regulation (“ITAR”) without prior written consent of the Customer. The Supplier’s request for the Customer’s consent with supplying a Subject under ITAR shall include information on all licenses and permits issued under ITAR, related to the Subject, including classification of the Subject according to United States Munition List. The Supplier is obliged to submit evidence of compliance of every supply of the Subject with the Specification and other requirements as per points 4.8. and 4.9. of these GTC-S, as well as a delivery note, shall the nature of the Subject so permit. The Supplier also undertakes to submit evidence of effectiveness of his QMS (system management documentation and other information on how the Supplier manages processes, as well as records on compliance with these processes), upon request. Provision 4.13. of these GTC-S shall not be affected.Shall the Supplier use third parties to perform the Subject, the Supplier shall bear responsibility as if he performed himself. The same applies also for the employees of the Supplier.Employees, workers and other third parties performing the Subject on the Supplier’ side (the “Supplier’s Workers”) undertake to obey the rules of conduct, issued by the Customer regarding entering and movement of persons and vehicles in the premises of the Customer, especially if the Subject, or any of its part, isperformed in FMG area in Granada, rules for which are published atwww.fmgranada.com. The Supplier undertakes to ensure the Supplier’s Workers are informed about this obligation and to make sure this obligation is duly fulfilled. This includes all training that may be necessary. The Customer shall have the right to control the performance of the Supplier, including performance of control and/or audit in the premises of the Supplier, or in any other place, given such control is needed to establish if the Supplier fulfills his duties under the Contract and/or these GTC-S and/or applicable laws. This shall also apply to the Supplier’s duties regarding the provisions of ITAR, AQAP, ethics and anticorruption issues, process management, supply chain and other topics where control by the Customer may be needed. Unless the Contractual parties agree otherwise in writing, such control shall be governed appropriately by the cooperation provisions of the Contract and/or these GTC-S.Price and payment conditions
The price shall be agreed on by the Contractual parties as a lump-sum price or a price based on the budget. For the price based on the budget, the Contractual parties shall agree on a mechanism for approving the quantity of supplied items in the Contract. In any case, the Supplier may issue an invoice only after the quantity is approved by the Customer. Any invoice issued without previous approval of corresponding documents by the Customer shall not be payable and shall not trigger any due date, even if not formally returned by the Customer to the Supplier.Unless expressly stated otherwise in the Contract, the price shall include all costs of the Supplier related to the performance of the Contract, including point 4.9. of these GTC-S. This includes costs that are not listed in the price offer, budget and/or other price agreements that are a part of and/or an annex to the Contract. For this reason, the Supplier shall not have the right to be reimbursed for the costs related to fulfilling expert and/or legal requirements that are needed to perform the Subject, unless such costs are expressly stated in the Contract. Point 3.6. of these GTC-S shall apply mutatis mutandis.The price does not include VAT unless expressly stated otherwise in the Contract. VAT shall follow applicable legislation.All invoices issued by the Supplier have to comply with all legal requirements of Spanish legal system, imposed on a tax document. The Customer is authorized to return any faulty invoice to the Supplier. The maturity date of the invoice shall start anew on the date of delivery of the corrected invoice to the Customer.Unless agreed otherwise in the Contract, the Contractual parties set the due date of invoices at 45 days after the invoice is delivered to the Customer.If the Supplier is a VAT payer in the Kingdom of Spain, he undertakes to ensure that all of his invoices meet the conditions of “Real Decreto 1619/2012, de 30 de noviembre, por el que se aprueba el Reglamento por el que se regulan las obligaciones de facturación”. Shall the Supplier fail to comply with this duty, he is to be held responsible for any damage caused to the Customer due to the breach of this obligation.The Supplier undertakes to compensate any damages the Customer may suffer due to the Supplier’s breach of his duties and/or due to the proceedings of the public authorities, following laws governing tax warranty, tax liability transfer, tax registration, tax payment, and others, related to the Supplier and/or the Contract. Such claim for damage compensation may be set off against any claim of the Supplier against the Customer, even before due date. It is also agreed that if the Supplier’s claim is insufficient to compensate for the Customer’s damage, the Supplier shall reimburse the difference to the Customer within 10 calendar days from the date of delivery of Customer’s written demand for payment.Unless agreed otherwise in the Contract, the invoice shall be paid by the Customer via a bank transfer to the Supplier’s bank account indicated on the invoice.Other rights and duties of the contractual parties
The Supplier undertakes to perform the Subject in top quality, in accordance with all legal and contractual requirements applicable to the Subject, with professional care, in his own name and at his own responsibility. Shall there occur any changes to the Subject during the period of the Contract, mainly, but not limited to: changes to manufacturing processes; new materials; changes to supply chain; etc., the Supplier undertakes to inform the Customer about such changes even before the changes come into effect and to agree with the Customer on a further procedure which may include mainly, but not exclusively: new sampling; review of documentation; tightening the final inspection at the Supplier’s premises or higher demands for such inspection from the Customer; labelling all part of the Subject that are affected by this change; etc.Unless stated otherwise in the Contract, the Supplier shall perform the Subject in a manner regular in given business field. If the Subject includes packaging, the Supplier, unless agreed otherwise in the Contract, undertakes to package the Subject in such a way that the Subject will not get damaged by mechanical, atmospheric or other influences and that the Subject can be safely transported and handled in a manner appropriate to the nature of the Subject. In case of any doubts about fulfilling this duty, the Supplier shall prove to the Customer that the performance of the Subject was correct, using mainly, but not limited to: expert examination, statements of relevant authorities, reference to relevant standards or regulations, etc. The costs of such procedure shall be borne by the Supplier unless the procedure proofs that the Supplier performed the Subject in a correct manner – in which case the costs shall be paid by the Customer on the basis of an invoice, issued by the Supplier. Provisions of these GTC-S regarding invoicing shall apply accordingly.The Subject shall not be a subject of any third-party rights and shall have no legal defects. The Supplier undertakes to make sure the Subject conforms with this requirement.The ownership rights to the Subject shall pass to the Customer at the moment of delivery, installation or in any other manner enabling the Customer to dispose of the Subject.The risk of damage to the Subject shall pass to the Customer together with the ownership rights to the Subject unless the nature of the Contract does not determine otherwise, e.g. in the case of continuous performance, the Supplier’s additional works being performed in the area of the Subject, etc. In case of any doubts, the Contractual parties agreed that shall any damage occur at a time, in place and in a manner that could be affected by a Contractual party acting with professional care, then this Contractual party shall be held responsible for such damage.Unless otherwise agreed in the Contract, the Supplier shall be obliged to procure liability insurance according to the nature of the Contract and the Supplier’s activities, at least in the amount of the value of the Contract, and to maintain such insurance in force until all claims of the Customer related to the Contract are settled. The Supplier also undertakes to compensate the Customer for any damage the Supplier is responsible for, which was not fully covered by the insurance.The Contractual parties hereby express their willingness and commitment to take all reasonably expected measures to prevent any forms of corruption and corrupt criminal activity, such as mainly, but not limited to: giving and/or receiving unlawful advantage, non-transparent influence on any decision-making process and/or persons, legalization of income from criminal activity, providing the means for committing crimes, and others (hereinafter referred to as the “Manifestations of corruption”). At the same time, the Contractual parties undertake to take all reasonably expected measures to detect Manifestations of corruption and to hold accountable persons who commit Manifestations of corruption, including criminal liability, if applicable. The Contractual parties agreed that provisions of these GTC-S regarding cooperation shall be applied mutatis mutandis to the obligations of the Contractual parties as per this point. More duties of the Contractual parties regarding anti-corruption are set out in the anti-corruption clause, which is part of these GTC-S and is published at www.fmgranada.com Claims from performance defects, warranty period
The Subject has defects if any of its technical or legal characteristics is not according to the Contract, these GTC-S, any annex of the Contract (shall there be annexes attached to the Contract), generally binding legal regulations, submitted certificates, attestations and documentation of the Subject, general quality requirements in the concerned business sector, reference samples of the Subject (if applicable), customs that the Contractual parties establishes between them and/or any standards or recommendations that are applicable to the Subject, either in whole or in part (the “Defects”).The Contractual parties agreed that Defects are also imperfections in performance of the Subject, mainly, but not limited to: defects in packaging; defects in necessary permissions and/or other documents, including a failure in obtaining such permissions and/or documents; damages to the Subject caused by the Supplier and/or persons the Supplier used to perform the Subject; etc.The Contractual parties agreed that legal claims of third parties, related to the Subject, are Defects as well.The Supplier is to be held responsible to the Customer for the Defects in full, regardless of whether or not the Defect caused damage to the Customer. The right for compensation for damages shall not be affected.The Customer undertakes to inform the Supplier in writing about the Defects without undue delay after the Customer detected a Defect or could have detected a Defect if acting with professional care (the “Reclamation”). To avoid all doubts, the Contractual parties hereby declare that the Customer is allowed to refuse to accept take over of the Subject if the Subject is defective. At the same time, the Customer is not obliged to check every part of the Subject at the moment of delivery, installation and/or other moment in which the Customer’s right to dispose of the Subject has started to exist, unless expressly agreed otherwise in the Contract. The Supplier is therefore obliged to deal with the Reclamation regardless of when it was filed. For this reason, other circumstances of the Contract than the time elapsed from the performance of the Subject to the time of filing the Reclamation, shall be decisive for the assessment of the validity of the Reclamation and the liability of the Supplier for the concerned Defect. The provision of point 7.9. of these GTC-S shall not be affected.In the Reclamation, the Customer shall describe the Defects and attach all relevant documents proving the existence and nature of the Defect that are in his possession. The Customer shall also specify the way of assessment of and dealing with the Reclamation he is proposing to the Supplier. The Supplier shall assess the Reclamation in writing within 10 working days from the date of submitting of the Reclamation, with only the eligibility or ineligibility of the Reclamation being in question. Shall the Supplier propose to the Customer a different way of dealing with the Reclamation from the one proposed by the Customer, the Reclamation is considered eligible. The Contractual parties may then agree on dealing with the eligible Reclamation in a way different from the original proposal of the Customer. The Supplier, however, does not have any right or claim to ask the Customer to submit to the way of dealing with the Reclamation proposed by the Supplier.For the Customer’s claims arising from the Defects, the relevant provisions of the Commercial Code and other legal regulations of the Kingdom of Spain, valid and effective on the date of occurrence of the Defect or on the date of filing the Reclamation, if the date of occurrence of the Defect cannot be determined without any doubt, shall apply.The Supplier shall provide a warranty for the Subject according to the nature of the Contract, but at least to the extend specified by law. Unless the Contract states otherwise, and if the legal regulations do not specify another warranty, applicable to the Subject, the Supplier shall provide a 5-year warranty, starting at the last day of performance of the last part of the Subject or from the day of delivery of a replacement Subject if the original Subject was replaced due to an eligible Reclamation.The Supplier shall be held responsible for Defects that have arisen during the warranty period as per the previous point. For such Defects, the period to file a Reclamation is 12 months after the corresponding warranty ended. After the expiry of this period, the Supplier may reject the Reclamation without any other reason.In case of an eligible Reclamation, the Customer shall have the right to a lump-sum compensation for the administration of the Reclamation, in the amount of 100,- € for each individual case. The Supplier undertakes to pay this amount on the basis of an invoice issued by the Customer and due in 10 days since its delivery to the Supplier.The Supplier shall be entitled to a payment of a lump-sum compensation for the administration of a Reclamation only in the case of a second or further ineligible Reclamation concerning the same Subject. The amount of such compensation shall be EUR 100 for each individual case and the Customer shall pay this amount on the basis of an invoice issued by the Supplier and due in the same maturity date as other invoices of the Supplier as per the Contract and/or these GTC-S.Security provisions, contractual penalties, interests on late payments
The Contractual parties can agree in the Contract on establishing a lien, a bank guarantee, pledge on assets or other security institute with the purpose of securing proper and timely fulfillment of rights and duties from the Contract. The conditions of such security institutes must be specified in the Contract and/or its possible annexes.
Unless stated otherwise in the Contract, the Contractual parties agreed on contractual penalties and interests on late payments as follows:
The Supplier is obliged to pay the Customer a contractual penalty in the amount of 0,01% of the value of the Contract, but no less than EUR 200, for each individual breach of any obligation, in any way related to the Contract. This shall not apply on a breach of obligation secured by a contractual penalty as per point 8.2.3. of these GTC-S.Shall a Contractual party be delayed with payment of any due financial obligation for more than 30 days, the other Contractual party shall have the right to an interest on late payment in the amount of 0,03% of the delayed payment for each commenced day of delay.Shall the Supplier be delayed with the delivery of the Subject, the Customer shall have the right to claim contractual penalty in the amount of 0,05% of the value of the delayed performance for each commenced day of delay.Contractual penalties as per these GTC-S are due in 3 days from the date of delivery of the notification of application of the contractual penalty to the obliged Contractual party.
If the nature of the breach of an obligation allows it, the Customer may, instead of applying a contractual penalty as per these GTC-S, provide the Supplier with an additional time-period to fulfill his obligation. However, the Supplier shall have no right for such exception, the decision is in the sole competency of the Customer.
Payment of a contractual penalty shall not affect the right to compensation for damages resulting from the breach of the obligation secured by the contractual penalty.
The Contractual parties hereby declare that they consider the amount of contractual penalties as per these GTC-S adequate to the importance of the secured obligations and that the written form of these GTC-S means that the agreement on contractual penalties itself has been prepared in writing.
The Supplier shall not have the right to assign his claims against the Customer to any third parties or to pledge such claims in favour of any third parties without prior written consent of the Customer.
Termination of the contract
The Contractual parties hereby declare their willingness to terminate the Contract by duly and timely fulfilling of all of their obligations and undertake to make maximum effort in trying to achieve such result.Shall the need arise, the Contract may be terminated by a mutual agreement of the Contractual parties. In the Contract, the Contractual parties may agree on other ways of terminating the Contract.In the case of serious breach of obligations of a Contractual party, mainly, but not limited to: delay in performance of the Subject for more than 60 days; delay in fulfilling an already breached obligation, where additional time for fulfillment was provided; delay in payment of any due financial obligation, related to the Contract, for more than 60 days; damage incurred due to gross negligence or intent; committing a crime against a Contractual party and/or persons connected with it; etc., the other Contractual party is authorized to terminate the Contract immediately, with all consequences related to one-side termination of the Contract, as set by the legal system of the Kingdom of Spain.The Customer may terminate the Contract also if the Supplier: loses the authorization to operate necessary for the performance of the Contract; enters into liquidation, bankruptcy or restructuring; delivers the Subject of which at least 5% of the total performance is defective.The Contractual party not affected by a force majeure circumstances as per Article 10. of these GTC-S, may terminate the Contract if the force majeure circumstances as per Article 10. of these GTC-S lasts for more than 2 months.Force majeure
A Contractual party may be excused from liability for failure to perform an obligation related to the Contract if it proves that there have been circumstances of fundamental importance affecting not only the concerned Contractual party, but also a significant number of third parties, which could not have been avoided nor prevented. Such circumstances include, but are not limited to: natural disasters; declaration of widespread measures of emergency or similar, preventing the proper exercise of business; accident caused by circumstances outside of the reach of the concerned Contractual party; etc. (hereinafter referred to as “Force majeure”).Force majeure shall not in any case include the consequences of any omission, negligence, failure to follow due procedures or other action that could have been influenced by the Contractual party, whether directly or indirectly, no matter if the Contractual party would have to exert significant effort or financial resources to influence such consequences.Shall the event of Force majeure occur, the Contractual parties undertake to inform each other without delay, but no later than 15 days since the event started, and to agree on further joint action so that all rights and duties of the Contractual parties related to the Contract, are fulfilled to the fullest extent possible. This also applies on the general legal duty to prevent damages.Shall the need arise, the Contractual parties are, upon request, obliged to prove the circumstances of the Force majeure also by confirmations issued by the competent authorities, or their right to call upon the circumstances of Force majeure shall become void.The Contractual parties undertake to make all reasonable efforts to resume performance of the Subject as soon as possible after the Force majeure obstacle has ceased to exist. Reimbursement of any costs of the Contractual parties, related to the Force majeure and its consequences, shall be subject to mutual agreement.Personal data protection
The Contractual parties undertake to follow the provisions of REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (the “GDPR”) and Organic Law 3/2018, of December 5, on the Protection of Personal Data and Guarantee of Digital Rights (LOPDGDD).
The Contractual parties hereby declare that they have informed each other about the procedures in the field of personal data protection of data subjects which they have shared for the purpose of performance of the Contract. In case of any doubts, the Contractual party that is a controller as per applicable provisions of personal data protection regulation, is obliged to proof their compliance with such regulation to the other Contractual party, data subject and/or authorities in the field of personal data protection, in particular to the data protection authority of the Kingdom of Spain (the “DPA”).
The Contractual parties undertake to adopt correct processes to ensure due processing of the requests from the data subjects, DPA and other authorities in the field of personal data protection, including appointing the data protection officer, as per GDPR and LOPDGDD Act (the “DPO”), if applicable. General provisions on cooperation of these GTC-S shall apply to sharing information about these processes and contact information of authorized personnel, including DPO if DPO is appointed, as well as participation in proceedings and processes as per this point of these GTC-S, shall the need arise.
Confidentiality of information
The Contractual parties agreed that all information mutually provided in relation to the Contract are to be considered confidential, with the exception of information that is immaterial for the performance of the Contract, information that is publicly available and information demonstrably and legitimately possessed by the Contractual party before this information has been disclosed by the other Contractual party. In case of any doubts as to whether an information is confidential, the Contractual party that is not the originator of this information, has the obligation to ask the other Contractual party for clarification. During the period of uncertainty, the concerned Contractual party shall treat this information as confidential.
The Contractual parties undertake to protect the confidentiality of information from the first moment of mutual negotiations concerning the Contract, even if the Contract is not concluded. For this reason, the Contractual parties are obliged to study these GTC-S before the contractual negotiations start and follow the provisions of this article of these GTC-S no matter if the negotiations are successful and/or if the Contractual parties signed separate agreements regarding confidentiality of information.
Shall the Contractual parties sign separate agreements regarding confidentiality of information, such agreements override the provisions of this article of these GTC-S only if expressly stated in these agreements.
Confidential information shall not be disclosed to any third party without prior written consent of the Contractual party which provided this information to the other Contractual party. Provisions of general law regarding confidentiality of information, secrecy, service secrecy, business or other secrets and/or unfair business practices, shall not be affected by this provision. Shall any Contractual party be obliged to share, publish, announce or disclose the Confidential Information in any way, based on a law, ruling of a relevant authority or for similar objective reasons that are outside of the Contractual party’s area of decision, such Contractual party shall inform the other Contractual party about such use of Confidential Information in writing and without undue delay.
In case of breach of the duties as per this article of these GTC-S, the breaching Contractual party shall be held responsible for any damages caused by this breach to the other Contractual party and/or any third party, including non-pecuniary damage and/or lost profit. At the same time, the breaching Contractual party shall pay to the other Contractual party a contractual penalty as per these GTC-S or the Contract, if agreed on.
Companies within the MSM GROUP, as well as companies related to them (hereinafter referred to as “Related parties”) are not to be considered third parties as per point 12.4. of these GTC-S. MSM GROUP defines itself as a group of companies in which the company MSM GROUP, s.r.o., seated at Štúrova 925/27, 018 41 Dubnica nad Váhom, Slovakia, company ID No.: 46 553 509, directly or indirectly holds share of voting rights in the amount of at least 50% or directly or indirectly owns a business interest or shares representing at least 50% of the share capital (hereinafter referred to also as “MSM GROUP”). Confidential Information may therefore be disclosed to companies within the MSM GROUP and/or between Related parties without prior warning; nevertheless, such companies must be bound to protect Confidential Information to the same extent as per these GTC-S. Disclosure of information to the Contractual parties’ legal and tax advisors is also not to be considered a breach of confidentiality as long as these advisors are bound by confidentiality obligations at least to the extent of these GTC-S.
Communication and delivery
Unless otherwise agreed in the Contract, the Contractual parties agreed on delivery of documents related to the Contract either in person, against signature (the recipient confirms delivery of a document on a document presented to him by the sender), or via e-mail to the addresses of authorized persons demonstrably appointed by the other Contractual party, or by a recommended post shipment, delivered to the seat of the other Contractual party. In case of any doubts as to if the consignment has been delivered to the recipient’s sphere of influence, the sender shall bear the burden of proof. The recipient’s sphere of influence shall be defined as the recipient’s ability to dispose of the consignment, including its refusal or making a decision to not collect the consignment. Therefore, refusal of the consignment or not collecting the consignment within the collection period prove that the consignment has been delivered to the sphere of influence of the recipient.
Final provisions
Rights and duties not expressly regulated in the Contract, these GTC-S or other documents related to the Contract, shall be governed by the relevant regulations of the Kingdom of Spain, valid and effective on the effective date of the Contract.
Shall the Contract contain an international element, the Contractual parties agreed on Spanish law as the applicable law.
All disputes and disagreements related to the Contract, shall be resolved by the Contractual parties primarily by mutual agreement. Shall the Contractual parties fail to reach an agreement even after a repeated meeting at the level of statutory representatives, the Contractual parties may refer exclusively to the competent court of law in the Kingdom of Spain.
These GTC-S shall become valid and effective on the day they are published www.fmgranada.com
