Conditions of Purchase

 

SMC GENERAL TERMS AND CONDITIONS OF PURCHASE

These General Purchasing Terms and Conditions ("GPC") shall govern the contractual relations between SMC España, S.A.U., with registered office in Vitoria-Gasteiz, calle Zuazobidea, 14, and tax ID number: A01019751, (hereinafter, "SMC") and its suppliers and/or contractors (hereinafter, "the Supplier"), arising from the purchases of products and/or services (hereinafter, "Products") made by SMC from the Supplier.

The Supplier and SMC may hereinafter be referred to individually as the "Party" and jointly as the "Parties".

 

1. General provisions

These GTC shall apply, in the absence of any express agreement, to any purchase of Products by SMC from the Supplier or provision of services by the Supplier to SMC, and shall form an integral part of any purchase order or purchase order for Products ("Order(s)") or any other related documentation.

The different sections of the GTC are independent of each other, so that if any term or condition contained therein should be null and void, voidable or unenforceable, the rest of the agreements will remain in force and enforceable.

These GTC together with the Order supersede all other contracts or agreements, written or verbal, concluded between the Parties prior to their execution in relation to their subject matter, which shall cease to be in force and effect from the commencement of the execution of the first Order.

Likewise, if any content contravenes mandatory regulations, the text of this document shall be deemed to comply with such regulations.

In the event that, for the above or similar reasons, any section of this document needs to be updated, such update shall be made in accordance with the intent or purpose of the original content.

 

2. Order

SMC shall not be bound by any order unless it has issued such an order in writing.

SMC's order shall be deemed to have been accepted by the Supplier when:

  • • expresamente acordado por el Proveedor;
  • • el Proveedor no ha presentado una objeción por escrito al pedido dentro de los 3 días hábiles siguientes a la fecha de emisión del pedido; o
  • • el Proveedor ha iniciado la ejecución del Pedido, incluso si no hay aceptación expresa por parte del Proveedor.

Acceptance of the order in any of the forms set out above shall imply full acceptance of these General Terms and Conditions by the Supplier.

Orders may only be accepted by the Supplier in full and may not be accepted in part.

The order, with the written instructions indicated therein, together with these General Terms and Conditions constitute the entire agreement between SMC and the Supplier.

Orders may be issued and accepted by electronic means.

 

3. Order changes

SMC reserves the right to request such modifications to the Products or the Order as it deems necessary, including, but not limited to, changes in quantities, references, delivery times, design, product features and/or manufacturing process.

The impact of such modifications, in particular with regard to delivery times and/or costs, shall be reasonably agreed between SMC and the Supplier. Furthermore, the Supplier may not, under any circumstances, pass on cost overruns without SMC's prior express written consent.

Any clauses or modifications proposed by the Supplier contrary to these GTC shall not be considered valid, unless SMC has given its prior express written consent. The Supplier may propose modifications to SMC within 3 working days from the date of issue of the Order by SMC, attaching to such notification the data justifying such adjustments for SMC's consideration and, if applicable, SMC's prior express written acceptance.

 

4. Selling price

In consideration of the Orders executed, SMC undertakes to pay the Supplier the price stated in the Order placed by SMC and shall include any costs arising from the shipment such as, but not limited to, packaging, inspection, transportation, and/or insurance, provided that they are duly justified in writing (the "Price").

Unless otherwise specified, the Price, as well as any other consideration payable by SMC to the Supplier in connection with the Order, also includes all charges, taxes, fees and duties arising from the supply of the Products and/or the provision of the Services, in accordance with Spanish tax legislation.

The Price is firm, fixed and unalterable and includes all costs and expenses necessary for the supply of the Products by the Supplier, even if not expressly provided for in the Order, and may not be subject to alteration or revision, unless such alteration or revision has been previously and expressly approved in writing by SMC.

 

5. Billing and payment conditions

Invoices must meet the following requirements:

  • • Las facturas se emitirán por medios electrónicos, en formato PDF o similar.
  • • Las facturas deberán ajustarse a los requerimientos que establezca la ley aplicable.
  • • Las facturas deberán contener el número de Pedido, el número de la línea de Pedido y la indicación correcta del material, instalación o servicio.
  • • La dirección para el envío de las facturas será finanzas@smc.smces.es.
  • • La fecha de las facturas será la de entrega del material, recepción de la instalación o la de aceptación del servicio prestado, salvo que al Proveedor se le solicite de forma expresa la factura resumen, en cuyo caso el Proveedor emitirá una única factura, con fecha final de mes y agrupando todas entregas del período.

Payment shall be made upon SMC's full acceptance of the Products, including the accompanying documentation and provided that the invoice includes the necessary data required by SMC.

The payment period, unless otherwise agreed, shall be 60 days from the date of invoice, due on the 10th and 25th of each month.

 

6. Assets owned by SMC

Except with SMC's express prior written consent, any items provided by SMC to the Supplier for assembly such as plans, designs, drawings, specifications, models, tools, moulds, templates, patterns and other material and/or information provided by SMC shall be and remain SMC's property and shall be used in accordance with SMC's instructions.

Such materials and any individual item or component thereof shall be clearly identifiable as SMC's property and shall be securely stored separately from the Supplier's goods.

The Supplier shall refrain from substituting SMC's material for any other material without SMC's prior express written authorisation and from using it for any purpose other than the fulfilment of SMC's orders.

The Supplier assumes all risk and liability for loss of or damage to the goods in its custody or control, except for wear and tear due to normal and proper use, and shall insure such goods at its own expense if necessary, for an amount at least equal to their replacement cost, declaring SMC to be the beneficiary, such goods being subject to recall by or at the request of SMC, in which case the Supplier shall prepare such goods for shipment and redeliver them to SMC in the same condition as originally received by the Supplier, all at the Supplier's expense. In any event, upon termination of the contractual termination between SMC and the Supplier, the said goods shall be returned to SMC in the same condition in which they were delivered.

The said goods, while in the Supplier's custody or control, may only be used for the performance of SMC's order and for no other purpose and shall be held free of any lien at the Supplier's risk.

 

7. Transfer of ownership and risk

Ownership of the Products covered by the Order shall pass to SMC upon signature of the delivery note or upon payment of the Price, whichever occurs first, and shall not be subject to any liens, encumbrances, retention of title, resolutory condition or third party rights. The risk shall pass at the time of actual delivery of the Products, as specified in the signature of the delivery note.

 

8. Delivery

The delivery terms and deadlines requested by SMC shall be deemed essential, being therefore binding and mandatory for the Supplier. SMC shall therefore be entitled to cancel (in whole or in part) any Order in the event of non-compliance with them.

The supply of the Products shall be carried out at the risk and expense of the Supplier, the result of which shall be for the Supplier's sole account.

Unless otherwise stated by SMC, all Products shall be governed by the latest INCOTERMS revision as of the date of SMC's order.

Goods delivered to SMC shall always be accompanied by the delivery note specifying the Product delivered in the same terms as in SMC's order and, if necessary, a detailed breakdown by cartons or other packaging, as well as the number of packages and their gross and net weights.

It shall also accompany the delivered Product with any other documentation (such as drawings, certificates, manuals, instructions for use and the like) that may be necessary or appropriate in relation to the delivered Products.

SMC may request the Supplier to deliver the documentation in English, and the Supplier shall bear the costs of translation, if any.

All costs incurred as a result of the Supplier's failure to provide the necessary shipping documents shall be borne by the Supplier and shall justify the delay in payment of invoices.

The Supplier must guarantee the traceability of the product and of the associated components and materials where applicable, as well as all operations (transport, process, maintenance, etc.) carried out during the life of the product.

Delivery shall not be deemed to have taken place until the above requirements have been met and the shipment has been accepted by SMC (see "Inspection and acceptance of the goods").

If the Supplier anticipates SMC's delivery requirements or delivers in excess of what is stated in SMC's Order, SMC may choose to refund the anticipated or excess quantities or to accept them. In the first case, the Supplier shall bear the risks and expenses of the refund; in the second case, SMC's acceptance shall not imply any modification of the payment obligations, which shall be effective within the terms and amounts set forth in the Order.

 

9. Delivery delays

Delivery of the Product shall be made within the deadlines specified in SMC's Order. In the event that for any reason the Supplier foresees difficulties in meeting the agreed delivery date or in fulfilling any other requirements of the Order, it shall immediately inform SMC thereof in writing and take all necessary measures to minimise the delay.

The Supplier shall be liable for all damages resulting from the delay in delivery and shall therefore bear all additional costs caused by the delay, including, but not limited to, the cost of express transport, which shall be paid in advance.

Without prejudice to the foregoing, failure to meet the delivery deadlines set out in the order shall entitle SMC to claim compensation in the form of a penalty equal to 1% of the Price of the delayed Products for each week of delay, but such penalty shall not exceed 5% of such Price.

The penalty, which may be paid by offsetting the amount owed by SMC to the Supplier, shall be expressly agreed as an exception to any general regime provided for, being cumulative with the compensation for damages caused and not replacing in any case the Supplier's obligation to bear the expenses incurred as a consequence of the delay in the delivery terms.

The Supplier shall immediately notify SMC in writing, as soon as it becomes aware of it, of any expected delay in the delivery of the Products, stating the reasons and the duration of such delay and the measures it will take to minimise the impact that such delay may cause. In such cases and without prejudice to other remedies to which SMC may be entitled, SMC may, directly or by hiring a third party, carry out the execution of the Order executed late by the Supplier, passing on all the costs and expenses arising from such execution to the Supplier. In such cases, the Supplier shall cooperate, provide all the necessary assistance and provide SMC and/or the third party hired by SMC with all the necessary means to remedy the non-fulfilment.

SMC shall be under no obligation to accept late, partial or defective deliveries or partial or defective deliveries of the Products. In the event that the Supplier makes a partial or defective delivery or performance and this is accepted by SMC, any costs or cost overruns resulting therefrom shall be borne by the Supplier. SMC shall be entitled to be indemnified by the Supplier for any loss or damage caused thereby (without prejudice to any other legal or contractual remedies to which it may be entitled). Furthermore, in relation to defective Products, SMC may request their repair or replacement, and the Supplier shall bear all costs and/or expenses for the return, repair or replacement (including those associated with storage, packaging and transport). SMC's acceptance of defective Products or Products delivered at a later date than the date agreed for the delivery of the Products shall not imply a waiver of any rights or remedies.

 

10. Packaging

All products shall be shipped subject to SMC's particular requirements, as well as in compliance with all applicable laws or various regulations of the country or countries of destination or in relation to labelling, marking and packaging.

In any case, and without prejudice to any guidelines or requirements coming from SMC, the Supplier undertakes that all packaging materials shall be of sufficient construction to guarantee the integrity and stability of the packed material, and thus ensure safe handling upon delivery to SMC, including for shipments of heavy Product. In order to ensure the above, the materials used for packaging shall be sustainable by avoiding the use of plastic as far as possible or by using recycled plastic or other newly created materials.

SMC shall not accept any charges for Product identification, packaging or labelling, unless expressly agreed in writing in advance.

Any damage that may occur to the Products due to deficiencies in the packaging shall be for the Supplier's account.

 

11. Audits

SMC may inspect and verify all matters relating to the Products covered by the Order as it deems necessary, as well as to carry out all verifications regarding the correct fulfilment of the obligations assumed under the Order and these GTC.

The aforementioned inspections may take place either at the Supplier's premises or at those of its subcontractors during manufacture or after completion of manufacture.

Both the Supplier and its subcontractors shall, at no additional charge, provide facilities and assistance to enable the inspection to be carried out safely and shall facilitate SMC's access to their premises as often as SMC deems appropriate by providing copies of all records relating to the Products covered by the Order.

The Supplier shall provide the technical and human resources necessary to carry out such verification.

If, as a result of the inspection and verification, SMC considers that certain materials or parts of the Products to be supplied are defective or do not comply with the stipulations of the Order, it shall notify the Supplier in writing, indicating its observations, and the Supplier shall be obliged to remedy the defects noted, respecting the delivery date of the latter.

 

12. Inspection and acceptance of goods

All Products delivered by the Supplier shall conform to the quality specifications required by SMC in the order and its annexed documents, as well as in its standards, drawings, verification guidelines, etc. and shall be subject to the control systems applied by SMC in its inspections.

The Supplier shall be responsible for the control, archiving and internal dissemination of the technical specifications and quality standards provided by SMC.

SMC shall notify the Supplier of any deficiency in the Products as soon as it has been discovered, reserving the right to reject and return, at the Supplier's risk and expense, any part of a shipment which proves to be defective or which does not comply with the specifications, without thereby invalidating the remainder of the Order.

In the event that SMC chooses to return all or part of the shipment to the Supplier, SMC reserves the right to request the Supplier to credit the part of the shipment returned or to replace the returned Products at the Supplier's sole expense.

SMC may also pass on to the Supplier all costs corresponding to additional inspection and/or recovery operations resulting from the delivery of non-conforming Product.

The signature of the delivery note or any other delivery document may in no case be interpreted as an express or implicit acknowledgement of the fulfilment of the obligations inherent to the Products delivered. Nor shall payment constitute or be construed as acceptance of the quality of the Products.

Therefore, neither the signed delivery note, nor the transfer of ownership nor the payment of the invoice shall relieve the Supplier of its full responsibility to supply the Products in accordance with the requirements of the order, nor prejudice SMC's rights and privileges to claim for defective or unsatisfactory Products.

The parts manufactured with drawings provided by SMC and which are returned without the possibility of recovery shall be rendered unusable.

Failure to identify the Product or to provide the documents to be enclosed with the shipment of the goods, such as delivery notes, drawings, instructions for use, quality guidelines, certificates, etc., entitles SMC to refuse delivery.

SMC may report defects or hidden defects in the goods received both upon receipt and at any time thereafter within 2 years from the signing of the delivery note. The complaint of differences in quantity, reference and other non-concealed defects may be raised within 3 months from the signing of the delivery note.

 

13. Prevention of occupational hazards

In the execution of the services that are the object of the Order, the Supplier must comply with all the occupational risk prevention and health and safety measures required by the legal provisions in force, or even if they are not legally required, prudence advises in order to avoid accidents occurring, causing damage or harm to third parties or incurring in infringements that may be punishable under criminal or administrative law, for all of which the Supplier will be directly responsible.

Consequently, the Supplier shall assume all liabilities arising from non-compliance with the regulations in force on occupational risk prevention, as regards the contracted activity, under the terms established by the Law on Occupational Risk Prevention and other applicable legislation.

The Supplier shall provide SMC with the documentation evidencing compliance with the obligations regarding the prevention of occupational risks when requested by SMC. The Supplier shall upload such documentation to the business coordination management platform designated by SMC from time to time.

In the event that the Supplier breaches the obligations set forth in this section, such breach shall be sufficient and justified cause for the cancellation of the Order and/or early termination of the Order, and the Supplier shall be fully liable, without limit, for any damage or loss that may arise for SMC from the breach of any of the obligations in labour, Social Security and occupational risk prevention matters.

 

14. Assignment and Subcontracting

The Supplier may not, directly or indirectly or by any means whatsoever, assign to third parties all or part of the rights and obligations assumed under this contractual relationship without SMC's prior express written consent. This prohibition expressly includes cases in which the assignment takes place as a result of a change of control (control being understood as defined in article 42 of the Commercial Code), a partial transfer of assets, a merger by absorption or other structural modification or any other type of operation involving the transfer of the Supplier's activity or business to a third party.

Subcontracting shall in no case create any contractual relationship between SMC and the subcontractor(s).

Any non-consensual assignment or subcontracting, whether in whole or in part, shall be null and void.

In the event that SMC authorises the assignment or subcontracting, the Supplier shall remain jointly and severally liable with the assignee or subcontractor for all obligations arising from the contractual relationship.

SMC may assign or transfer its contractual position, as well as all or part of the rights and obligations arising therefrom, by notifying the Supplier in writing as soon as possible.

 

15. Compliance with export legislation

The Supplier shall comply with all applicable export and re-export control laws and undertakes to provide SMC with all documentation required for this purpose.

Export licences, necessary authorisations, certificates of origin or labelling, as well as any other requirements necessary for export shall be the Supplier's responsibility, unless otherwise stated in the order, in which case the Supplier shall provide such information as may be necessary to enable SMC to obtain the necessary licences or authorisations.

 

16. Labour, tax and social security obligations

The Supplier must comply with all legal, tax, labour and Social Security provisions, as well as have the personnel assigned to the contracted activity integrated in its staff, duly contracted and registered with the Social Security, be up to date in the payment of the corresponding salaries, pay indemnities, subsidies and be up to date in the fulfilment of its Social Security obligations, as well as in any type of economic compensation derived from the labour relationship existing between the Supplier and its personnel.

The Supplier shall, if required by SMC, provide monthly proof of compliance with all labour and Social Security obligations in respect of the personnel appointed for the performance of the contracted service and expressly declares that, at the date of acceptance of the Order, it is up to date with its labour and Social Security obligations.

 

17. Force majeure contingencies

The Parties shall not be liable for any failure to perform any obligation under these GTC and/or the Order if such failure is due to a cause beyond the control of the Parties ("Force Majeure"), including but not limited to war, acts of terrorism, fire or flood as possible causes.

The following situations may not be invoked as Force Majeure by the Supplier to justify the non-fulfilment of its obligations: strike or any kind of labour dispute and/or its consequences or difficulty in the supply of materials or products in the markets or in the supply of the Products.

If one of the Parties is affected by a Force Majeure event, it shall notify the other Party, at the time it becomes aware of it, stating the facts it faces, the estimated duration of the Force Majeure event and the measures it will take to mitigate its effects.

The lack of notification referred to in the previous paragraph shall prevent the Party affected by the cause of Force Majeure from being able to allege the existence of Force Majeure as a cause of a delay or non-fulfilment of the obligations assumed by it. Nor shall the notification mean the automatic acceptance by the other Party of the existence of the Force Majeure.

The fulfilment of the obligations affected by the cause of Force Majeure shall be suspended for the duration of the cause of Force Majeure. It is expressly stated that the obligation to pay may also be suspended in the event of Force Majeure. As soon as the cause of Force Majeure ceases to exist, the Parties shall agree on the necessary measures to make up for the time and Orders not performed.

If the event of Force Majeure affects the Supplier and extends beyond 30 calendar days after SMC has been informed, SMC may terminate the Order, in whole or in part, by written notice, provided that it has not been possible to reach a joint solution.

 

18. Termination

A. The contractual relationship shall be terminated early and automatically, in addition to the cases specifically regulated in other sections of these GTC, in the following cases:

  • • At any time, by mutual written agreement between the Parties.
  • • Upon written termination by either Party based on a breach of any of the obligations assumed by the other Party under the GTC and/or the Order, without prejudice to the right of the aggrieved Party to opt for the continuation of the contractual relationship and to demand full performance of its obligations by the other Party, cumulatively and without prejudice to any other remedies provided by law or contract.

In such an event, the Party in breach shall have 5 working days to remedy the situation. If, after the expiry of that period, in the opinion of the Party concerned, the Party in breach has not put an end to its conduct or remedied the cause of its breach, the Party concerned may terminate the contractual relationship with immediate effect, under the terms and conditions set out in the preceding paragraph.

In particular, in the event that the Supplier has not terminated its conduct or has not remedied the cause of its default within the period provided for this purpose, SMC shall be entitled, in addition to any other rights it may have under the law or the Order, to procure, on such terms and in such manner as SMC may deem appropriate, similar Products to those which were the subject of the termination, and the Supplier shall be liable to SMC for any additional cost incurred by SMC in procuring such additional Products.

 

B. Without prejudice to the foregoing and to the provisions of other sections or provisions of these GTC and any other legal or contractual remedy that SMC may be entitled to, SMC may terminate the contractual relationship early and automatically, without any penalty, cost, expense or amount in any other concept for SMC, and without limitation, in the following cases:

  • • Failure by the Supplier to comply with any obligation of an essential nature.
  • • The existence, in SMC's opinion, of serious defects in the Products delivered or in progress.
  • • Failure to comply with applicable regulations or standards, including labour, health and safety, occupational risk prevention, social security, environmental, prevention of money laundering and terrorist financing, quality and tax regulations or failure to pay wages and salaries and/or maintain insurance or any other monetary obligations.
  • • The Supplier is in financial difficulties that endanger the fulfilment of its obligations.
  • • The falsity, inaccuracy, incorrectness, non-compliance or defective performance of any of the Supplier's representations and warranties.
  • • The extinction of the legal personality or the adoption of any agreement aimed at the dissolution of the Supplier.
  • • The rejection, invalidation (in whole or in part) or partial or conditional acceptance of the Product by SMC's end customer or a third party.
  • • Circumstances that may affect SMC's liquidity, solvency or capital position (e.g. material changes in the financial and money markets, adoption of measures by authorities).
  • • In those cases in which the suspension of the Order lasts for more than 30 days or the suspension is attributable to the Supplier, even if such suspension is due to strikes or disputes at the Supplier.

In the event that SMC chooses to terminate the contractual relationship due to any breach by the Supplier, the Supplier shall not be entitled to retain the Products covered by the Order which are still to be delivered or those delivered incompletely, defectively or in contravention of the GTC and/or the Order.

 

19. Termination for convenience

SMC may terminate all or any part of its Order at any time early at its convenience by giving written notice to the Supplier at least 1 week before the date on which the termination is to take effect.

Upon receipt of such notice of cancellation, the Supplier shall immediately take steps to avoid incurring additional costs and shall thereafter only carry out such work as is necessary to preserve and protect the work already in progress and to protect the materials and Products at or in transit to the site of the work. Thus, the Supplier undertakes to ensure the proper execution of the Orders that are in progress.

The Supplier shall raise any complaint regarding the cancellation in writing to SMC's Purchasing department within 3 working days from the date on which it has been notified of the termination for convenience of the Order.

The Supplier shall not be entitled to claim from SMC any amount regardless of the concept to which it refers as a consequence of the termination regulated in this paragraph. Notwithstanding the foregoing, SMC shall pay the Supplier the amount of the Products actually delivered and accepted by SMC up to the date of termination and the costs incurred by the Supplier for products actually delivered and/or semi-finished products specifically manufactured for SMC and not constituting the Supplier's usual Products at the date of termination. In no event shall SMC be liable for indirect and/or consequential damages for loss of profit or loss of production nor shall the reimbursement exceed the value of the Order.

The provisions of this clause shall not apply if SMC terminates the Order due to delay (see "Delays in delivery") or non-performance attributable to the Supplier (see "Delays in delivery").

 

20. Effects of termination

The termination of the contractual relationship, irrespective of its form or cause, shall have the following effects:

  • • SMC's only obligation upon termination of the contractual relationship shall be to pay the Price accrued up to that moment and pending payment, without being obliged to compensate the Supplier for any damages caused in the event that the termination is due to any of the events provided for in the sections "Termination" -section B- and "Termination for convenience".
  • • All documentation owned by a Party, including Confidential Information, which has been placed in the possession of the other Party in execution of the contractual relationship shall be returned within 15 days of the termination of the contractual relationship.
  • • Those provisions which by their very nature may survive the termination of the contractual relationship shall remain in force.

 

21. Guarantee

The Products supplied by the Supplier shall be strictly in accordance with the specifications, drawings, samples and other requirements, as well as fit for trade and for the purposes for which SMC intends to use them and shall be considered fully guaranteed against any design, material, manufacturing or assembly defects for a period of 2 years as from the signature of the delivery note, SMC reserving the right to charge the Supplier for any expenses incurred during this period due to defective operation, as well as to claim compensation for any damages caused.

This warranty extends to SMC, its successors, assigns, customers and other users of the affected Products.

The Supplier shall take, at its own expense, all necessary measures to correct the defects reported and undertakes to replace or repair the Product within a maximum period of 5 working days from the notification, assuming both the cost of transport and all other costs arising from the defect.

In the event that the Supplier fails to comply with SMC's requests in a timely manner, SMC may repair or replace the defective Product at its own expense, charging the Supplier for all costs and damages resulting from the Supplier's non-compliance, including overtime, de-installation, installation, commissioning, freight, etc. if required for SMC's operational needs.

SMC may deduct such amounts from outstanding invoices payable to the Supplier or withhold outstanding payments irrespective of whether they are payments arising from other orders (see "Invoicing and payment conditions").

Payment or deduction of expenses shall not relieve the Supplier of its obligations and liabilities under the Order.

Any exclusion of warranty shall only be valid if it has been expressly agreed by SMC and the Supplier in writing.

 

22. Technical service

In the event that the Supplier is unable to maintain the supply of the Product requested in the Order, it undertakes to supply a substitute or equivalent Product. The Supplier shall also guarantee the supply of components and spare parts for a period of 10 years from the date of dispatch of the last Order for the said Product.

During such period, the Supplier shall continue to provide technical service to SMC.

In the event that the Supplier ceases to manufacture the aforementioned Products, their components or spare parts, or ceases to supply them in accordance with SMC's requirements, the Supplier shall make available to SMC all drawings, technical specifications, data and know-how necessary to enable and facilitate SMC, or its suppliers and/or customers, to manufacture or procure, use and sell such Products, components or spare parts.

 

23. Confidential information

The Supplier undertakes to treat as confidential, not to disseminate or use for its own or another's benefit (directly or indirectly), and to protect against any unauthorised disclosure, commercial, economic and/or industrial or business information arising from or relating to the Orders, GTS, the GTC, or information to which it has access or which is made available to it during the performance of the contractual relationship ("Confidential Information").

In case of doubt as to what is to be considered as Confidential Information, the Supplier shall first consult SMC in writing as to the appropriate qualification and treatment thereof. Among others and without limitation, the Parties understand "Confidential Information" to mean the terms and conditions set out in the Order, as well as details relating to the cooperation between the Parties, including information (in any medium and whether written or oral), technical or commercial, data, charts, diagrams, drawings, plans, functions or project plans or know-how relating to: research, development, discoveries, inventions, methods, formulas, processes, development tools, drawings and designs, components, areas of commercial or business interest, prototypes, products, product specifications, production plans, services, marketing, financing strategies, business development or expansion strategies, costs, prices, discount and rebate policies, customers and their preferences, suppliers, business or expansion opportunities.

The obligation of confidentiality shall apply for the entire duration of the contractual relationship and, in any case, for a period of 2 years from the end of the contractual relationship. This duty of confidentiality extends to the partners and directors of the respective companies, as well as to their employees, collaborators, internal or external, and any other person who directly or indirectly maintains a relationship with the Parties and may have access to said information, and Supplier shall be jointly and severally liable for any breach of the duty of confidentiality by any of them.

However, the Supplier undertakes to limit access to the Confidential Information to personnel strictly required for the processing of SMC's Order, who shall be duly informed of the confidentiality commitments undertaken by the Supplier.

Insofar as the information contained in the order and the other information provided by SMC is of a confidential nature, the Supplier undertakes to safeguard it with due diligence and not to use it for any purpose other than that for which it was provided, nor may it make it public, reproduce it in whole or in part or disclose it to third parties, except with the prior express written consent of SMC, and shall be liable for any damages that the disclosure of the information may cause.

Any information provided by the Supplier to SMC which relates to the Products covered by the Order shall, unless otherwise agreed by the Parties, be deemed to be non-confidential.

The Supplier may disclose any Confidential Information, without incurring any liability for breach of the confidentiality obligations set out in this section, provided that it is information which:

  • • has ceased to be confidential because it has entered the public domain (provided that such publicity is not the result of a breach of law or contract); or
  • • the Supplier has been required to disclose such information by a public and/or judicial authority, or in compliance with a legal obligation, being obliged, in any case, to: (a) notify such circumstance to SMC as soon as possible; (b) consult in advance (where legally permitted) with SMC on the content and scope of the Confidential Information to be communicated; and (iii) limit to the greatest extent legally permitted the disclosure of the Confidential Information.

Upon termination, cancellation or expiry of the Order, the Supplier shall return to SMC the Confidential Information to which it has had access, including any copies thereof made by the Supplier, if requested by SMC prior to such termination, cancellation or expiry of the Order.

 

24. Industrial and intellectual property

All rights resulting from intellectual activity in the industrial, technical or scientific fields recognised by applicable law in any country shall be considered intellectual and/or industrial property ("IP Rights"). This definition includes, among others, patents, utility models, their applications, integrated circuits, copyrights, software, databases, source codes, trade secrets, trademarks, names, denominations, confidential information, know-how and any improvements or modifications to such rights.

"Know-how" means the intangible asset owned by SMC consisting of substantial, relevant and useful knowledge and information of a technological, scientific, industrial, intellectual, commercial, organisational and financial nature required and how to use it for the performance of the Order.

Unless otherwise agreed in writing between the Supplier and SMC, any IP Rights that are created or developed (including jointly) in execution of the Order shall be the sole and exclusive property of SMC from the time of their creation or development.

In the event that the Products are designed or manufactured ad hoc by the Supplier at SMC's express request, the IP Rights shall also remain the property of SMC. The Supplier may neither make use of them nor sell them to third parties.

The Supplier is also prohibited from registering under any industrial or intellectual property right any of the Products and/or the documentation related thereto.

The Supplier grants SMC a non-exclusive, universal, free of charge, irrevocable and assignable, transferable or sub-licensable licence, for the entire duration of the contractual relationship, to the IP Rights created or developed by the Supplier prior to the commencement of the contractual relationship or in its possession, which are associated with or necessary or convenient for the proper performance of the Order and the fulfilment of the obligations set out in these GTC.

Except for the inalienable rights recognised by law, the Supplier warrants that the rights in favour of SMC contained in this paragraph shall not be affected by the Supplier's relations with its employees or dependants, including assignees or subcontractors, performing activities under the Order.

The Supplier warrants to SMC that the materials delivered by it are, both as a whole and in all their constituent parts, duly purchased, manufactured and assembled in accordance with the regulations in force and, in particular, in full compliance with the regulations governing the freedom of use and trade of such materials.

If the purchase, sale or use of such Products is prohibited, the Supplier shall, at its own expense and at SMC's option:

  • • procure SMC the right to continue to purchase, sell and use such Products; or
  • • replace them with equivalent non-infringing products; or
  • • reimburse SMC for the purchase price and the costs of transport, handling and other expenses resulting from the non-performance.

The execution or performance of the contractual relationship between the Parties shall in no way be understood as implying a total or partial transfer of, or the granting of a right over, SMC's IP Rights, and in particular Know-how, in favour of the Supplier.

 

25. Obligation to hold harmless

The Supplier warrants that all Products delivered pursuant to SMC's Order shall be free from claims of any kind by third parties and undertakes to hold SMC (as well as its partners, directors, employees, assistants, consultants, agents and/or dependants) harmless in respect of third party claims brought against SMC arising directly and indirectly from the use and sale of the Products subject to SMC's Order.

Therefore, if any, the Supplier shall defend, indemnify, hold harmless, pay and reimburse SMC (and/or its partners, directors, employees, assistants, advisors, consultants, agents and dependants) against all damages, both direct and indirect, of any kind or nature, including claims, proceedings, demands, penalties, fines, sanctions, debts, costs and expenses. (including costs and expenses of solicitors, barristers, barristers, experts and experts, even if their involvement is not compulsory) incurred as a result of or in connection with:

  • • the rejection, invalidation (in whole or in part) or partial or conditional acceptance of the Product by SMC's end customer or a third party;
  • • any breach or defective performance (in whole or in part) by the Supplier of: (a) the GTC and/or the Order; or (b) any applicable law, regulation, rule or policy;
  • • any claim by any public body, authority or agency (including tax, labour or social security authorities) arising out of or in connection with any breach or defective performance (in whole or in part) by the Supplier of the GTC, the Order and/or any applicable law, regulation, rule or policy;
  • • the falsity, inaccuracy, incorrectness, non-performance or defective performance (in whole or in part) of any of the Supplier's obligations in connection with the Order; and
  • • any loss, damage or injury resulting from any claim or liability which SMC may have against any customer or any other third party arising from the Supplier's performance of the Order or from any delay or default on its part.

This indemnity obligation shall survive termination, cancellation or expiry of SMC's order. The liability provided for in this section is in addition to any penalties provided for in these GTC and/or the Order.

 

26. Compliance with legislation

The Supplier warrants that in the performance of SMC's Orders it and all Products it supplies to SMC shall comply with applicable EU, non-EU, national, regional, autonomous, provincial and/or local legislation, etc., including laws, ordinances, codes, regulations, orders and other regulations currently in force or which may come into force, in particular those relating to standards and norms, defective products and Product safety.

Furthermore, the Supplier warrants that the Products it supplies to SMC are manufactured in strict compliance with the applicable labour regulations, in particular those relating to the international treaties of the International Labour Organisation.

 

27. Advertising ban

The Supplier may not, in its own interest or in the interest of third parties, carry out any advertising relating to the sales it makes to SMC without SMC's prior express written consent.

 

28. No waiver

SMC's waiver of any obligation under these GTC and/or the Order or of any right or remedy under these GTC and/or the Order: (i) shall not relieve the Supplier from the full performance of the remaining obligations; and (ii) shall not be construed as a waiver of any future performance of any obligation or of any right or remedy under these GTC and/or the Order.

A waiver, deferral or waiver of any of SMC's rights under the GTC and/or the Order, or any part thereof: (i) shall only be binding if in writing; (ii) may be subject to such conditions as SMC deems appropriate; (iii) shall be limited to the specific case in which it occurred; and (iv) shall not affect the enforceability in other cases of the right to which it relates or the enforceability of any other right of SMC.

SMC's rights and remedies under this clause shall not be exclusive and are consistent with and cumulative of any other rights and remedies it may have at law or under SMC's Order.

 

29. Data Protection

In accordance with 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 ("GDPR") and Organic Law 3/2018, of 5 December, on the Protection of Personal Data ("LOPD-GDD") and guarantee of digital rights, the personal data of the Parties shall be processed as necessary for the performance of the contract to which they are party, in particular, for the management of the Orders. The data will not be disclosed to third parties or transferred internationally.

The Supplier may exercise its rights (e.g. rights of access, rectification, deletion, opposition, portability and limitation), in accordance with the RGPD and the LOPDGDD, by writing to the following address gdpr@smc.smces.es.

The Supplier will find additional information in the privacy policy of the website https://www.smc.eu/es-es/politica-de-privacidad.

 

30. Corporate Social Responsibility

The Supplier warrants to SMC that its company complies with applicable international standards on fundamental principles and rights at work, especially with regard to the elimination of child labour and forced labour, and that it does not use the services of companies that have engaged or are likely to engage in such practices.

 

31. Code of Conduct

The Supplier acknowledges that it is aware of the contents of SMC's Code of Conduct, which can be found on SMC's website: https://static.smc.eu/binaries/content/assets/smc_global/company/csr/smc-group-codeof-conduct_20200807.pdf.

 

32. Notifications

Notifications, authorisations, consents and other communications: (i) shall be in writing; (ii) shall be sent by any means that accredits the content and date of sending (e-mail being considered sufficient); (iii) shall be sent to the persons and at the addresses stated in the Order, or, if the addressee indicates another address, shall be sent to that address; and (iv) shall be sent in Spanish (without the need for translation into Spanish of documents drafted in English).

Notifications shall be deemed to have been made on the date on which they are sent.

 

33. Jurisdiction and jurisdiction

SMC and the Supplier agree that any action, suit or proceeding arising out of or based on SMC's order or the subject matter thereof may only be brought before the courts of Vitoria-Gasteiz (Álava, Spain), expressly waiving any other jurisdiction that may be applicable for the resolution of any disputes that may arise in the interpretation, development, execution and/or termination of these GTC and SMC's order.

Without prejudice to the foregoing, SMC may alternatively bring the claim before any other competent jurisdiction in accordance with international conflict rules.

 

34. Applicable law

SMC's order and all questions and disputes arising therefrom shall be governed by and construed in accordance with Spanish law, excluding the application of the United Nations Convention on Contracts for the International Sale of Goods; in the event of a dispute, the Spanish version of these GTC shall prevail.