GENERAL TERMS AND CONDITIONS

CLAUSE 1. DEFINITIONS.

The terms “DIPASA and/or COMPANY” mentioned in these terms and conditions, will refer to DIPASA INTERNACIONAL DE MÉXICO S.A. DE C.V. The term “CLIENT” will refer to the individual or corporation with the legal and economic capacity to engage DIPASA as supplier or contractor. The term “PARTIES” will be used when these terms and conditions refer to both of them. The terms “PRODUCT and/or MERCHANDISE” will refer to the product or products obtained from or sold by DIPASA to the CLIENT.

CLAUSE 2. GENERAL TERMS

All orders and agreement with DIPASA and all deliveries of and offers from or to DIPASA will be subject to the conditions contained in this document. Such may not be modified or adjusted, and DIPASA will only accept orders made by the CLIENT according to these general terms and conditions, along with any special terms that may be determined by DIPASA. These T&C apply in order to establish an agreement upon their acceptance.

CLAUSE 3. DEFINITIVENESS OF THE CONTRACT

These terms and conditions are the only applicable set of terms and conditions to any agreement, supply, delivery and/or offer of or from DIPASA to the CLIENT. Consequently, the PARTIES expressively manifest that any other agreement entered into among them prior to the execution of these terms and conditions, either verbal or written, tacit or express, related to the subject of this contract either directly or indirectly, is and will be terminated from the execution of this contract on, for which this document and (if applicable) any terms contained in the cover or order confirmation or offer of DIPASA, become the only legal document that rules the obligations existing among the PARTIES.

CLAUSE 4. OFFERS

Unless stipulated otherwise in the offer, the offers presented to the CLIENT by DIPASA do not create or constitute obligations for DIPASA, they are just to provide information to the CLIENT.

CLAUSE 5. EXECUTION OF THE CONTRACT

Unless agreed otherwise in writing, the contract will be considered as executed on the date that it is signed by DIPASA if the contract is executed in a printed version. However, it can also be executed through written confirmation by DIPASA of an order of the client and in such case the date of the confirmation will be considered the date of execution.

CLAUSE 6. PRICES

The prices determined by DIPASA do not include taxes, such as VAT or other taxes or fees that may apply to the deal.

The packing costs are not included in the prices determined by DIPASA. Unless agreed otherwise in writing by both parties, such costs will be charged separately. The packaging will not be recollected or returned to DIPASA.

Furthermore, the final price determined by DIPASA may be increased by the shipping and transportation costs and expenses.

CLAUSE 7. PAYMENT

I. The payment of the PRODUCT or MERCHANDISE acquired by the CLIENT will be done within the payment terms and by the payment means determined by DIPASA. The instalment or total payment of the price will have to be done on working days and hours and no previous payment requisition or collection will be required. The CLIENT is not allowed to set-off or deduct any amounts to invoices of DIPASA.

II. In case of delay on the payments agreed by the PARTIES, a monthly delay interest will be charged at a rate of 5% (five percent) over the due amount. The parties agree that the CLIENT may make payments over the due amounts in advance, either total or partial, with no penalty, prior to the delivery of the acquired products.

III. In case of an urgent order, or if the CLIENT requests fast, staggered or delayed deliveries, or in case of non-standard or irregular shipment, DIPASA  reserves the right to refuse such fast, staggered or delayed delivery dates or non-standard or irregular deliveries. In case of acceptance, DIPASA will have the right to increase the prices in order to compensate any additional costs for production, transportation or others. Such additional amounts will have to be paid by the CLIENT.

In case DIPASA incurs in expenses for the collection of the due amounts, either by judicial or extrajudicial means, the CLIENT will have to cover such additional expenses, including legal fees and expenses.

CLAUSE 8. DELIVERY

I. The MERCHANDISE will be delivered at the destination agreed among the PARTIES. The destination place will be suggested by the CLIENT and shall be authorized by DIPASA. In case DIPASA does not authorize the suggested delivery place, DIPASA will indicate where the delivery of the MERCHANDISE will be done.

II. The virtual delivery will be done when the CLIENT is notified in writing by DIPASA that the PRODUCT or MERCHANDISE is ready to be shipped. Unless otherwise agreed in writing, delivery will be EXW as meant in the Incoterms 2020.

In case of delay on the physical delivery of the MERCHANDISE to the CLIENT for causes attributable to the transportation or shipment, DIPASA shall not be liable, and no penalty will be caused.

III. Delivery dates are, unless otherwise agreed upon in writing, indications only and not of fatal nature. In case both parties agree in writing to a specific virtual delivery date, DIPASA will be liable for the delay on the virtual delivery of the MERCHANDISE, but only after the CLIENT has notified of such delay in writing and the delay is caused by circumstances attributable to DIPASA and are of substantial nature. However, such delay shall not cause neither a total nor a partial dissolution of this contract unless the delay is for more than 6 (six) weeks from the day after DIPASA receives the written notification above mentioned.

Since the CLIENT accepts the disposition of the MERCHANDISE, the MERCHANDISE will be considered as virtually received by the CLIENT, and DIPASA will only have the rights and obligations as a depositary but not as the owner.

IV. In case of breach on the date of the virtual delivery of the MERCHANDISE by DIPASA based on the stipulations contained in this clause, the CLIENT will have the right to be reimbursed by DIPASA of any paid down payments in its case. Furthermore, the CLIENT will have the right to receive a penalty of up to 10% (ten percent) over the purchase price agreed among the PARTIES in the contract, for damages caused by such breach.

If there are good reasons to fear that the CLIENT is or will not be able or prepared to fulfil
his contractual obligations to DIPASA, as well as in the event of a bankruptcy, moratorium,
discontinuation, winding-up or full or partial transfer of the CLIENT’s business, DIPASA will be entitled to demand suitable security from the CLIENT with regard to all contractual obligations
(whether or not they are due and payable) and to suspend the execution of the agreement
pending such security. Should the security not be forthcoming within a reasonable period set
by DIPASA, DIPASA will be entitled to dissolve the agreement in whole or in part. DIPASA has
these powers apart from its other rights by virtue of the law, the contract and these
Conditions.

CLAUSE 9. INSPECTION

The CLIENT must inspect the MERCHANDISE once it is received and within a term of no longer than 8 (eight) calendar days from the final reception of the PRODUCT. In case the MERCHANDISE does not have the quality agreed among the parties based on the samples of the PRODUCT provided to the CLIENT prior to the execution of the contract by signing it or by accepting these terms and conditions, the CLIENT must submit a written complaint within the period indicated in this paragraph. In case any complaint submitted by the CLIENT is received after such term, DIPASA will not have the obligation to address the complaint since it will not have any effect. Consequently, it will be considered as if the MERCHANDISE was received at full satisfaction. Notwithstanding the clauses regarding the transfer of risk and risk/costs of transport, the term for inspection initiates the moment the products are made available to the client.

I. If the MERCHANDISE or the PRODUCT is sold with a determined quality, it will not be up to the CLIENT to refuse the sold MERCHANDISE or PRODUCT because of the relevant quality.

II. If the CLIENT is in delay to receive the sold MERCHANDISE or PRODUCT, it will have to pay DIPASA the cost of the warehouses, barns or pots it has to rent in order to store the sold MERCHANDISE or PRODUCT and DIPASA will not be liable to preserve the MERCHANDISE in an ordinary manner and it shall only be liable of intent or gross negligence.

CLAUSE 10. TRANSFER OF OWNERSHIP AND RETENTION OF TITLE

The ownership of the MERCHANDISE or PRODUCT will only be transferred when the CLIENT has covered all debts it has with DIPASA, including taxes, rights, penalties, shipment costs, packing costs and any other cost additional to the agreed price. In case of delay on the payment of the price and once the MERCHANDISE has been delivered, the CLIENT shall only be considered as depositary of the sold MERCHANDISE or PRODUCT. It shall not become the owner until the total debt has been covered before DIPASA. Consequently, the CLIENT will have to keep the MERCHANDISE or PRODUCT in the same conditions it was delivered in case DIPASA has to rescind the contract and to recover the MERCHANDISE or PRODUCT.

In case DIPASA recovers the MERCHANDISE but considers the value, quality or packaging affected by the period it was handled by the CLIENT,, the CLIENT remains liable to pay DIPASA the price of it along with all costs and expenses generated for the breach of payment, including a penalty of 10% (ten percent) over the total sales price.

CLAUSE 11. GUARANTEE

DIPASA guarantees the quality of the sold MERCHANDISE or PRODUCT to the client up to the virtual delivery. Consequently, it shall be liable for any hidden defect on the quality of the sold MERCHANDISE or PRODUCT up to 6 (six) calendar months from the virtual delivery of the sold MERCHANDISE or PRODUCT. However, both PARTIES state to know that the external characteristics of the MERCHANDISE may change given its handling, for which DIPASA shall not be liable of any damage or adjustment caused by the handling or transportation of the MERCHANDISE or PRODUCT. Such damages or adjustments shall be identified at the inspection of the MERCHANDISE upon the physical delivery of the MERCHANDISE, as indicated in clause 8 above. Consequently, DIPASA shall only be liable for hidden defects that affect its quality as indicated in this clause.

Such hidden defects will be restored by DIPASA by fixing or replacing the affected MERCHANDISE. Nonetheless, DIPASA shall also have the option to reimburse the amount equivalent to the MERCHANDISE with hidden defects, either totally or partially, up to its own decision. In case DIPASA decides to repair the damages by replacing the affected MERCHANDISE, the CLIENT will have an additional term of 3 (three) months of guarantee over the replaced merchandise, from the date of virtual delivery of such replaced merchandise.

Such guarantee will not apply if the defects are wholly or partially caused by:

a) reception or storage in a place without reasonable security and cleanliness.

b)  a failure or the CLIENT to store the MERCHANDISE according to the instructions provided by DIPASA.

c)  usual loss of  quality of the MERCHANDISE after the delivery date.

d) the materials provided by the CLIENT or packaging or materials applied in consultation with the CLIENT;

If the CLIENT breaches any of the obligations acquired when accepting these terms and conditions for sale, it will lose its right to demand the guarantee herein provided.

The obligations of the CLIENT, are not affected in case of any default by DIPASA.

CLAUSE 12. COPYRIGHTS AND INDUSTRIAL PROPERTY

The purchase-sale herein agreed and authorized does not imply the transfer by DIPASA of its copyrights or of its industrial property, neither totally or partially, for which it shall remain in DIPASA’s name at all times. Furthermore, the CLIENT shall not have any type of authorization to use such copyrights and/or industrial property.

CLAUSE 13. NO CANCELLATION

The CLIENT may not cancel the order without DIPASA’s authorization. In case DIPASA does not authorize the cancellation and if the CLIENT refuses to accept delivery of the MERCHANDISE, the CLIENT remains  liable to pay the price agreed as well as compensation for costs and expenses made by  DIPASA.

CLAUSE 14. RETURNS

The CLIENT may not return the MERCHANDISE unless a written authorization provided by DIPASA is received. The MERCHANDISE shipped under special orders may not be returned under any circumstance. In case DIPASA authorizes a return, the CLIENT will be liable to pay a fee for return to inventory equivalent to 25% (twenty-five percent) of the value of the returned MERCHANDISE. Only authorised returns of MERCHANDISE in the original state can be credited. In such case, the transportation costs will be paid by the CLIENT and DIPASA reserves the exclusive right to determine the value to which the returned MERCHANDISE will be credited. Furthermore, DIPASA reserves the right to reject any return of unauthorized materials. Any and all verbal instruction must be confirmed in writing by DIPASA to be valid. All returned MERCHANDISE will be delivered at the place in which it was originally purchased; otherwise DIPASA shall not credit the returned MERCHANDISE.

CLAUSE 15. RESCISSION CAUSES

The PARTIES determine that, besides the causes for rescission indicated in these terms and conditions, and those in the Federal Civil Code, the following will be rescission causes as well:

1. If the CLIENT does not pay the price indicated in these terms and conditions within the determined time and manner.

2. If any of THE PARTIES breaches any relevant term of the agreement and if such breach is capable of being remedied, the breaching PARTY does not remedy such breach upon the first request of the other PARTY.

CLAUSE 16. BREACH OF THE CONTRACT BY THE CLIENT.

Apart from the rights reserved by DIPASA according to these sale terms and conditions, in case the CLIENT becomes insolvent or in case any petition of bankruptcy is filed for or by the CLIENT, if the CLIENT presents a petition of cession in benefit of its creditors, in case a liquidator, fiscal agent or other official officer is appointed to deal with the CLIENT’s matters, if the CLIENT makes malicious transfers or payments in priority, if the CLIENT denies to receive the purchased MERCHANDISE or if the CLIENT breaches its obligations towards DIPASA in any other way, if it disowns any contract entered into with DIPASA, or if DIPASA, at its own discretion, doubts or considers that the financial condition of the CLIENT has suffered impairment or does not justify the continuation of the production or shipment under the terms herein agreed, DIPASA reserves its right to cancel the order or to refuse to continue with the production and/or delivery until the full advanced payment is received or until the CLIENT provides a guarantee of payment at its full satisfaction upon the payment date. In case of lack of payment of delivered PRODUCT, either totally or partially or of any other kind, DIPASA may suspend the future deliveries until the full payment is made, or it may terminate the terms and conditions with no need of previous judicial order. However, the CLIENT shall be liable to pay all the costs and expenses incurred by DIPASA for the breach of the CLIENT, including cancellation, trial or legal fees.

CLAUSE 17. NO WAIVER OF RIGHTS.

In case DIPASA does not execute any right either provided by means of these terms and conditions, by the law of by any other means, it shall not mean a waiver of such unexecuted rights.

CLAUSE 18. NO CESSIONS BY THE CLIENT.

The CLIENT shall not have the right to yield or transfer in any way, these terms and conditions or any right or obligation derived from them.

CLAUSE 19. CORRECTION OF ERRORS

DIPASA is not held to comply with clauses or amounts in agreements, offers, orders or communication of DIPASA containing one or more evident typos  or other evident mistakes. In such case the wording or amounts that were reasonably meant to be included, shall apply.  

CLASUE 20. HEADLINES

The headlines of the clauses of these terms and conditions have been inserted solely for practical purposes but do not constitute, in any case, an integral part of its text, for which they shall not be considered as means for interpretation or limitation of the obligations acquired by the parties according to it.

CLAUSE 21. CONFIDENTIALITY. 

THE PARTIES accept and obligate themselves to use all exchanged and provided information, either directly or indirectly, with the sole purpose of executing these terms and conditions in terms of their activities, services and operations, either if such information is related or not with the activities indicated in these terms and conditions. Such information will be confidential.

Furthermore, THE PARTIES agree that, from the date of execution of these terms and conditions, they shall give a confidential treatment and restricted access to the information shared as confidential and they both agree to keep the necessary information as well as to preserve it during the time that is strictly necessary.

The term “CONFIDENTIAL INFORMATION” means all information owned by THE PARTIES that is shared or delivered by any means to the other party in the execution of these terms and conditions for its effects.

Consequently, CONFIDENTIAL INFORMATION shall be all the industrial, commercial, technical, legal, accounting, fiscal or any other type of information delivered among THE PARTIES for the execution of the purpose of these terms and conditions,  contained in any type of document or means, as well as the verbal information shared by THE PARTIES in regards to the purpose of these terms and conditions. CONFIDENTIAL INFORMATION also includes but is not limited to, the files, work plans, quotations, analysis, network topology, any type of legal or operation documentation, models, electronic information, data base, all type of methodology, processes and development, know how, inner control, policies, proceedings, control plans and programs and/or plans and programs of inner audit and/or comptrollership, electronic systems and manuals identified as confidential that are provided with such character, contracts, agreements, minutes, professional services proposals, legal, fiscal and business strategies, as well as any other document related with the purpose of these terms and conditions, in spite of the support media of such document, being such, if it is a printed or digital document, if it is contained in a mobile device, in the net or in any other site or support through which it can be accessed.

THE PARTIES agree to the following:

• To maintain strict confidentiality and to not reveal nor allow any type of disclosure of the CONFIDENTIAL INFORMATION to anyone, except to the personnel that participates actively and directly in the execution of these terms and conditions, who are in knowledge of the information that is considered as confidential.
• To not use the CONFIDENTIAL INFORMATION for any means unrelated to the evaluation and the negotiation of the purposes of these terms and conditions.
• To not reveal or allow to reveal to anyone, any of the information regarding the purpose of these terms and conditions or any other fact related to them, including but not limited to, the fact that some discussions are being done or can be done in regards to the PURPOSE of these terms and conditions, with the exception of the stipulations of the following paragraph. Moreover, they shall not reveal the condition or the content of any of such discussions, their interest or their involvement in such, the existence of these terms and conditions or the fact that the CONFIDENTIAL INFORMATION has been shared with them.
• To make sure that the personnel that works for THE PARTIES and that has access to the information considered as CONFIDENTIAL INFORMATION, is obligated to foresee these terms and conditions.

The transfer or reception of the CONFIDENTIAL INFORMATION shall not be interpreted by any of THE PARTIES as an obligation to provide any type of information to the other party, to enter into a contract, agreement, partnership or to establish relations with the other party regarding mutual businesses. These terms and conditions do not represent by any means, either express or implicit, any type of right over the copyright including, but not limited to, licence to use the CONFIDENTIAL INFORMATION.

On the other hand, all the provided information is shared “as is” with no express or implicit guarantee, or of any other type in regards to its accuracy or its operation.

THE PARTIES are obligated to not use the CONFIDENTIAL INFORMATION in an inappropriate manner and to treat such information as their own CONFIDENTIAL INFORMATION. Such treatment shall imply a reasonable degree of care in order to avoid its release or its inappropriate use, which is a different use to the one agreed in these terms and conditions.

None of THE PARTIES shall reveal the CONFIDENTIAL INFORMATION to any individual or corporation without the express and written consent from the other party and it shall only be used in regards to the purpose of these terms and conditions. Such information may only be revealed by THE PARTIES to their employees, representatives or shareholders that require the access to such information with a justified manner and only for the purposes for which it has been shared with them, as long as such individuals are obligated by THE PARTIES to keep such information as confidential in similar terms to the ones indicated in these terms and conditions and that the nature of confidentiality of the CONFIDENTIAL INFORMATION is revealed to them as long as the obligations regarding its use.

THE PARTIES are obligated to not reproduce the CONFIDENTIAL INFORMATION, either totally or partially and by any means, without the express and written consent of the other party.

THE PARTIES are obligated to return all the provided CONFIDENTIAL INFORMATION upon the termination of the effect of these terms and conditions and in any time that it is required, as long as the provided information can be returned. In such case, the obtained copies by any means shall be destroyed.

Independently from the obligations indicated in the Federal Law to Prevent and Identify Operations with Illicit Resources for which a legal mechanism is established for its reveal, in case any of THE PARTIES is obligated to reveal the CONFIDENTIAL INFORMATION totally or partially by law dispositions, requirement by competent judicial or administrative authority by means of a written order according to the applicable legislation and as a result of a judicial or administrative process, the affected party shall be notified within 3 (three) working days after the requirement from the corresponding authority has been received.

Furthermore, the party that is required to return the information is obligated to return only the information that has been required, making its best efforts in order to affect as little as possible given the disclosure of the CONFIDENTIAL INFORMATION, when the authority has not delimited the requested information.

CLAUSE 22. INDEPENDENCY OF THE PARTIES.

These terms and conditions do not create any type of relation between THE PARTIES, except the obligations acquired by the execution of these terms and conditions and those derived from them. Consequently, these terms and conditions may not be considered, under any circumstance, as a joint venture, a corporation, association, partnership or any other entity or similar. Each part is independent from the other and shall carry on with its businesses independently. Furthermore, none of THE PARTIES shall be liable for the representations, acts or omissions performed by the other party that go against the terms of these terms and conditions. Consequently, none of THE PARTIES has any right or power to act for or in the name of the other party or to obligate such party in such regards.

CLAUSE 23. INDEPENCENCY OF THE CLAUSES.

In case one or more of the stipulations contained in these terms and conditions becomes invalid by law or by judgment, the rest of the clauses herein contained shall remain in force and with full legal effect.

CLAUSE 24. LEGAL JURISDICTION.

These terms and conditions shall be ruled by the legal scope and covenant of the Federal Civil Code of Mexico when referring to national transactions. When referring to international transactions, these Terms and Conditions shall be ruled by the scope and covenant of .the Rules of Arbitration of the International Chamber of Commerce. The United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG) is not applicable.

CLAUSE 25. SPECIAL LAWS.

The CONFIDENTIAL INFORMATION that is disclosed with the purpose of obtaining or keeping a competitive or an economic advantage before third parties when operating its businesses shall be subject to stipulations of section 82 of the Law for Copyrights. Consequently, THE PARTIES shall be subject to stipulations of sections 83, 84, 85 and 86 of such law. Furthermore, THE PARTIES accept, from this moment on, that the breach or non-compliance of the stipulations of these terms and conditions may create the cases foreseen in points IV, V and VI of sections 223 and 224 of the Law for Copyrights, related to sections 210 and 211 of Federal Criminal Code and the other related laws.

CLAUSE 26. MODIFICATIONS.

 THE PARTIES agree that any modification to these stipulations of these terms and conditions can be done by DIPASA and will have to be notified to the CLIENT within a term of 3 (three) working days after the modification is performed. Such amendment shall become an integral part of these terms and conditions as if contained in them.

CLAUSE 27. DEFINITIVE.

These terms and conditions represent the global and definite agreement among THE PARTIES in regards to its purpose and matter, for which, from this moment on, no other agreement regarding the same matters or purposes entered into between THE PARTIES, either written or verbal, shall be in force. Consequently, the legal relation derived from these terms and conditions shall exist only and exclusively.

CLAUSE 28. DISPUTES.

In case THE PARTIES have any dispute related to the fulfilment and/or interpretation of these terms and conditions, they agree to be subject of an amicable resolution by means of a mediation process before the Alternative Justice Institute for the State of Guanajuato or before a private mediator duly certified by such Institute. The expenses of private mediation shall be covered by the parties in equal parts.

Once the mediation process above indicated has been performed, and in case the dispute is not solved in such process, the parties agree to be subject to the jurisdiction and legal scope of the courts in Celaya, Guanajuato, for which they wave their right to any other jurisdiction or legal scope to which they may be entitled given their addresses, either current or future, the location of their assets or by any other means.

For international sales, all disputes arising from or in connection with the present Terms and Conditions and cover of any/or contracts, orders, sales and offers deriving therefrom shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with the said Rules. The place of Arbitration will be Geneva, Switzerland, and the used language will be English.

DIPASA is not obliged to fulfil orders when, due to force majeure or unforeseeable circumstances, it is forced to reduce or suspend the distribution of its products, having to resume deliveries at the end of the cause that motivated the interruption. DIPASA will inform the CLIENT of the causes that caused the suspension of delivery. In the event that these causes continue for more than 7 days, the parties may terminate the purchase order without any type of responsibility and without the need for a judicial order.

CLAUSE 29. SIGNATURES.

The acceptance of these terms and conditions by electronic matters by the CLIENT will be considered as an electronic execution of the contract, accepting all of its terms and conditions.