These General Terms and Conditions for Sale (“Terms and Conditions”) establish the general conditions for the sale of products (“Products”) by BEQUISA INDÚSTRIA QUÍMICA DO BRASIL LTDA., a company organized under the laws of Brazil, with its headquarters at Avenida Antônio Bernardo, 3950, Parque Industrial I, Gleba 37, Zip Code 11349-380, São Vicente – SP, Brazil, enrolled with the CNPJ under No. 58.133.703/0001-78 (“BEQUISA”), to the buyer identified in the executed proforma invoice (“BUYER”). Hereinafter, BEQUISA and BUYER are jointly referred to as “Parties” and individually referred to as “Party”.
1. Binding effect
1.1. The sale of Products will be governed by the conditions established in the proforma invoice issued by BEQUISA and accepted, in writing, by the BUYER (“Proforma Invoice”), jointly with the provisions of these Terms and Conditions in respect to whatever is not expressly annulled and/or changed by the respective Proforma Invoice. References to the BUYER’s own Terms and Conditions will not be accepted.
1.2. These Terms and Conditions shall automatically apply, unless otherwise established in written agreement by the Parties.
1.3. The BUYER cannot, under any circumstances, claim the lack of knowledge of these Terms and Conditions and, once any purchase order is made, the BUYER expressly declares its agreement with all conditions established herein.
2. Purchase Orders
2.1. The prices practiced by BEQUISA will be informed to the BUYER prior to the request by BUYER of any purchase order. Such prices may change without prior notice, except in relation to Proforma Invoices already issued, in writing, by BEQUISA.
2.2. The Parties’ relationship of sale and purchase of Products (“Agreement”) will only be effective as from the placement of a purchase order by BUYER, its acceptance by BEQUISA, at its sole discretion, by means of the issuance of the respective Proforma Invoice and the acceptance by the BUYER in writing of such Proforma Invoice, as per item 2.3 below.
2.3. The Proforma Invoice, which shall be sent for final confirmation by BUYER by e-mail, will contain at least the following information: (a) in relation to the BUYER: full name, address, taxpayer/ID number, telephone, activity and name of the person for contact; (b) in relation to the purchase order: quantity of Products (units and weight), description of the Products, individual price (price and respective currency) and total price (price and respective currency); (c) in relation to the delivery: local (full address), estimated date for delivery and applicable condition (Incoterms 2010); and (d) in relation to the payment: payment conditions (at sight or in instalments, as well as conditions of payment in instalments, is applicable) and respective date(s); if the Proforma Invoice contains an specific expiration date, such date shall be expressly informed in the Proforma Invoice. BEQUISA will request that the BUYER provides any missing information listed above or any additional information necessary for acceptance by BEQUISA of the purchase order and issuance of the Proforma Invoice for final confirmation by BUYER.
2.4. Upon request of a purchase order and confirmation of the Proforma Invoice sent by BEQUISA, the BUYER is bound to its content, agreeing to buy all the listed Products pursuant to the terms and conditions set forth herein. Any request for cancelation of a purchase order by the BUYER is subject to BEQUISA’s acceptance in writing, at its exclusive discretion.
2.5. BEQUISA is not obliged to accept any purchase order, entirely or partially, even in case it has a long-term relationship with the BUYER. A purchase order is only binding upon BEQUISA after connected to a Proforma Invoice which is issued by BEQUISA, remitted to the BUYER with the agreed conditions and expressly accepted by the BUYER, as per item 2.3 above. In case of absence in the remittance by BEQUISA of the Proforma Invoice with the accepted conditions, for final approval by the BUYER, the purchase order shall be considered as rejected by BEQUISA. The purchase order shall also be considered as rejected in case the BUYER does not confirm, within three (3) business days, the conditions of the Proforma Invoice sent by BEQUISA.
2.6. The BUYER acknowledges that BEQUISA may confirm the sale on a quantity of Products smaller than the one requested by the BUYER, in accordance to the availability of such Products in the inventory.
2.7. Any discounts granted by BEQUISA are subject to cancelations or modifications without prior notice, except in relation to Proforma Invoices already issued by BEQUISA.
2.8. Any modifications in the accepted Proforma Invoice shall only be made with the acceptance of the other Party in writing.
3. Delivery of Products
3.1. The deliveries shall be governed by the Incoterms 2010 provision informed in writing in the Proforma Invoice. BEQUISA reserves the right to determine and to adjust at its sole discretion the packaging, the transportation route and best fit allocation (quantity) of the Products in the containers, unless if otherwise demanded by the BUYER, in which case the BUYER shall bear the respective costs related to the desired packaging, shipping and transportation conditions.
3.2. The deliveries shall be governed by the provisions of Incoterms 2010 as published by the International Chamber of Commerce, in accordance to the Incoterms condition informed in the Proforma Invoice.
3.3. The BUYER authorizes BEQUISA to make partial deliveries.
3.4. In case the BUYER unjustifiably refuses to receive the Products, any credit conditions may be canceled by BEQUISA, at its sole discretion, and BEQUISA will have the option to receive immediate payment for the Products or to terminate the sale. In this case, the Products shall be returned to BEQUISA, without prejudice, in any case, of the reimbursement by the BUYER of transportation costs and all other costs, expenses and damages suffered by BEQUISA.
4. Lack or Delay in Deliveries
4.1. BEQUISA strives to comply with the shipping date specified in the Proforma Invoice. The delivery will consider the schedule agreed upon BEQUISA and BUYER; however, the BUYER acknowledges that the delivery date is only estimated and that reasonable delays may occur and are expressly authorized, as BEQUISA is not liable for delays caused by the transportation company or by any other factors (such as inspections, mandatory approvals and procedures in case of dangerous cargo, among others).
4.2. BEQUISA will notify the BUYER of any delays caused by BEQUISA. In case of delay in the shipment of the Product higher than four (4) weeks, the BUYER may, at its sole discretion, notify BEQUISA in writing establishing a maximum term for delivery of the Products, provided that such term is not lower than two (2) weeks. In case the shipment is not concluded within the established term, counted as from the receipt of the notice by BEQUISA, due to willful intent or gross negligence of BEQUISA, the purchase order can be cancelled by the BUYER.
4.3. In case of force majeure and acts of God, including nature events, strikes, terrorism acts, governmental actions, retention of products by governmental authorities (including customs authorities), manufacturing delays and suspensions, including by suppliers and transportation companies, or any other circumstances that are beyond reasonable control of BEQUISA and prevents BEQUISA from timely complying with the obligations established herein or in the Proforma Invoice, the delivery dates specified in the Proforma Invoice and/or in this Terms and Conditions shall be automatically postponed in the same period that the event that caused the delay lasts. In this case, BEQUISA will not be liable for the delay in delivery or for the non-compliance of the conditions established between the Parties. BEQUISA shall inform the BUYER about those circumstances and the consequent postponement in the delivery of the Products.
5. Quality Problems
5.1. The Products shall meet their technical specifications, as indicated by BEQUISA, being BEQUISA’s liability limited to the adequacy of the Products to such specifications. BEQUISA shall be notified in writing in case of any complaints regarding the quality of the Products. Such notification shall report the exact type and extension of the quality problems or defects and shall be sent within thirty (30) days after the Products are received by the BUYER. Untimely complaints will not be accepted by BEQUISA.
5.2. In case of hidden defects in the Products, which cannot be attested by BUYER upon their receipt, the BUYER shall notify BEQUISA on such defects within maximum thirty (30) days as of the knowledge of the defect. However, no complaints can be made after one hundred and eighty (180) days of the delivery of the Products, even in case of hidden defects that are later discovered. For purpose of this provision, the delivery of the Products shall be considered as the legal transfer of the Products property, as determined by the relevant Incoterms condition. Therefore, it is incumbent upon the BUYER to make all applicable cargo checking to assure that no defect Product remains in its inventory after one hundred and eighty (180) days of the delivery of the Products.
5.3. The term established in item 5.2 above shall apply solely to Products with hidden defects that cannot be promptly assessed by the BUYER. For all other Products with defects that can be promptly assessed, provisions of item 5.1 shall apply.
5.4. Complaints will not be considered valid in case the BUYER or third parties have any responsibility in relation to the defects, such as inappropriate or incorrect storage, manipulation, handling, labeling, modification, application, use or sale of the Products.
5.5. In case BEQUISA is directly considered liable by the final user of the Products, in case it is not the BUYER, in a judicial or out-of-court action, for defects in the Products that were not timely communicated to BEQUISA pursuant to items 5.1 and 5.2 above, BUYER will be liable to pay or reimburse BEQUISA, as the case may be, even if an action is necessary for such purpose, for all the costs and/or indemnification paid by BEQUISA, as well as for expenses incurred for repairing the Products. In this case, BEQUISA may withhold pending supplies of Products to offset any amount owed by the BUYER, as well as to receive the due amounts pursuant to this section.
5.6. Any complaints may be subject to the procedures provided in items 5.9 and 5.10 below and BEQUISA will not accept the return of Products. In case the complaint is timely made by the BUYER and is considered technically justifiable in respect to the defects in the Products, both Parties will negotiate a solution to compensate the BUYER, which may include the granting of discounts by BEQUISA in relation to the price of the Products with defect. The sale of any Products without defects shall remain valid regardless of the arrangement of the Parties related to any Products with defect.
5.7. Complaints against BEQUISA are limited to events caused by its serious or willful misconduct. There will be no liability of BEQUISA resulting from acts of God, force majeure or from any other unforeseeable circumstances.
5.8. The quantity of the supplied Products shall be checked by the BUYER during their receipt and any complains related to the Products shall be made within the period set forth in item 5.1, under the penalty of losing the right to complain.
5.9. In case any claims related to the Products, BEQUISA reserves its right to have the Products analyzed and, in case BEQUISA verifies that the Products were delivered in good conditions, BEQUISA will not return its price or compensate the BUYER in any manner.
5.10. The quality control referred to in item 5.9 above shall be made by means of the analysis of the batch sample retained by BEQUISA or any additional methods considered as adequate by BEQUISA, and shall be concluded by a professional of BEQUISA staff or by a third party appointed by BEQUISA. The BUYER shall deliver to BEQUISA all materials (such as documents and photos) that are necessary to analyze the alleged quality control problem.
5.11. Any complaints of the BUYER related to the supply under these Terms and Conditions will only give rise to indemnification for direct damages. The indemnification will be limited to the total price of the Products discounted from any amounts that are due to BEQUISA. Under no circumstances BEQUISA will indemnify for indirect damages.
6. Invoicing and Payment Conditions
6.1. BEQUISA will issue the invoice after the Proforma Invoice is executed by the BUYER or accepted by e-mail. Payment conditions and maturity date(s) will be previously agreed between the Parties and described in the Proforma Invoice and shall be respected by the BUYER, under penalty of application of the penalties established in items 6.3 and 6.4 below.
6.1.1. For deferred sales, the acceptance by BEQUISA of the purchase order shall be subject to the risk analysis of the BUYER by BEQUISA, and BEQUISA may reject any purchase order in case the BUYER is not compliant with the credit conditions acceptable by BEQUISA.
6.2. BEQUISA’s invoices will include all taxes established in applicable laws and regulations. Any modifications in laws and regulations occurring after the acceptance by BUYER of the Proforma Invoice that change the taxation of the Products will have its effects reflected in the price of the Products at the invoicing.
6.3. The payment will be considered effective in the date in which the wire transfer is made to BEQUISA’s bank account and funds are duly received (according to the bank account indicated by BEQUISA). Eventual bank fees will not be discounted from the sum indicated in the Proforma Invoice, being the BUYER responsible for such payment. The non-payment in the maturity date will result in the payment by BUYER of late payment fine of twenty percent (20%) and interests in arrears on the delayed amount, accrued until the date the payment is made by BUYER.
6.4. Without prejudice to the additional penalties applicable under legislation or under these Terms and Conditions, in case of non-fulfilment of obligations by BUYER, BEQUISA is released from its obligation to deliver Products related to the relevant Proforma Invoices (in case the Products have not yet been delivered) and also related to any other outstanding Proforma Invoices, even if already accepted and/or paid. Such suspension will continue until effective payment by the BUYER of the amounts owed to BEQUISA, including the amounts provided for in item 6.4 above and expenses incurred by BEQUISA, and fulfilment of BUYER’s obligations. If the breach by the BUYER results in other damages and costs to BEQUISA, the suspension of deliveries may continue until actual reparation by BUYER. BEQUISA is authorized to also retain amounts and automatically offset them against amounts owed by BUYER, if necessary.
6.5. The BUYER shall pay all expenses incurred by BEQUISA for collection of delayed payments, including attorneys’ fees, judicial costs and other reasonable expenses.
6.6. Except for any express agreement by the Parties providing for a different condition, the payment shall be made by means of an international foreign exchange contract concluded with financial institutions, free from any banking charges or fees. No deduction shall be made in the payments, except if any discounts for early payment are agreed by the Parties in the confirmed Proforma Invoice.
6.7. The BUYER is not authorized to offset any amounts, unless if previously authorized in writing by BEQUISA.
6.8. In case of non-payment by the BUYER, BEQUISA may notify the BUYER to immediately stop selling the Products to its clients.
7. Non-Exclusivity, Intellectual Property and Resale of Products
7.1. Except if otherwise agreed by the Parties, the BUYER will not have, as a result of the Agreement, any exclusivity right for sale of the Products in any territory, as well as any industrial property rights related to the Products subject to the Agreement, including, but not limited to, patents, trademarks, trade names and logotypes or distinctive signs deposited or registered by BEQUISA or any of its affiliates, controlled or controlling companies (“Industrial Property Rights”). The BUYER is aware that BEQUISA, its affiliates, controlled and controlling companies are the sole and exclusive owners of the Industrial Property Rights related to the Products under the Agreement and that, by means of the Agreement, the BUYER will not, under any circumstances, acquire an exploration license of such rights. BEQUISA can request, at any time, that the BUYER ceases the use of its Industrial Property Rights.
7.2. The BUYER acknowledges that it shall respect all Industrial Property Rights and may be held civil or criminally liable for the unauthorized use of such rights. The BUYER shall not, directly or indirectly, by means of any affiliate, related parties or third parties, request or conduct any request for registration of industrial property rights conflicting with BEQUISA’s Industrial Property Rights or oppose or jeopardize in any way the registration or use, by BEQUISA, of its Industrial Property Rights.
7.3. Without prejudice to other penalties set forth in these Terms and Conditions and of the adoption of all applicable legal measures, in case BUYER does not comply with items 7.1 and 7.2 above, BEQUISA can request that the BUYER immediately ceases all of its actions related to the Industrial Property.
7.4. The BUYER is allowed to resale the Products sold under these Terms and Conditions.
7.5. Obtaining official permits in the destination country related to foreign trade transactions or Industrial Property owned by the BUYER is responsibility of the BUYER.
8. Responsibilities of the BUYER
8.1. The BUYER must read and follow all instructions and specifications contained in the labels, package leaflet and agronomic prescriptions of the Products, including the correct use of the Product, the use of individual protection equipment, the disposal and the transportation of the Products, recommendations and precautions related to human health and environment, especially for prevention of accidents and for the correct compliance with the measures to be adopted in case of accidents. These warnings shall be transmitted to the final buyer of the Product, which shall be allowed by local legislation to acquire the Products.
8.2. The BUYER shall purchase and, if applicable, store and resale the Products in accordance with all applicable laws and regulations in its country, observing all legal requirements in respect to obtaining and keeping valid registers, licenses and authorizations.
8.2.1. The BUYER shall inform BEQUISA, upon the placement of any purchase order, as regards any local requirements of its country that shall be respected in relation to the label, packaging and delivery of the Products.
8.3. The BUYER releases BEQUISA and shall hold BEQUISA harmless from any losses and damages (including, without limitation, any consequential, direct or indirect damages, loss of profits and pain and suffering), liabilities, claims and legal actions from third parties in respect to the Products, including without limitation, indemnifications, any costs with legal disputes, attorneys’ fees and any other expenses resulting from (a) the non-compliance by the BUYER with the obligations set herein; (b) negligence, serious or willful misconduct of the BUYER, including the acts of employees and subcontracted parties; (c) purchase, possession, use, handling, storage, sale, labeling, modification or disposal of the Products that is inadequate and/or made by persons not authorized by applicable legislation and/or in disagreement with the labels, package leaflet, agronomic prescriptions of the Products or applicable laws and regulations, and (d) any violation to the applicable legislation and regulations related to control of pesticides.
9. Compliance, Anti-Bribery and Anti-Corruption
9.1. The BUYER agrees to:
(i) Comply with and ensure that all its partners, employees, agents, collaborators and representatives comply with applicable laws and regulations in respect to anti-bribery, anti-corruption and competition;
(ii) Comply with and ensure that all its partners, employees, agents, collaborators and representatives comply with all anti-bribery and anti-corruption policies that may be implemented and informed to the BUYER by BEQUISA;
(iii) Keep complete and accurate records of all matters related to the activities subject to the Agreement, including all visits and communications with public agents (including semi-public corporations and public companies) and all costs and expenses incurred or reimbursed in the execution of its activities.
9.2. The BUYER represents and warranties to BEQUISA the following:
(i) The BUYER is aware of Brazilian anti-corruption legislation (Law No. 12,846/2013) and competition laws, as well as good international practices related thereto, declaring itself aware of the administrative, civil and penal consequences, in both national and international levels, arising from the non-compliance of such rules regarding, especially but not limited to: (a) the promise or offering of bribes or undue advantages to public officials or third parties related to them; (b) promise or offer of bribes and undue advantages to individuals; (c) fraud and misappropriation; (d) money laundering and obstruction of justice; (e) abuse of power; (f) influence peddling; (g) making payments (on its behalf or on behalf of any third parties) for sponsorship, trip and accommodation expenses, entertainment and or any gifts to any person involved in the subject matter of the Product sale or (h) any activity prohibited as per the applicable law or any legal or contractual obligation;
(ii) Neither the BUYER nor any of its subsidiaries or affiliates, employees or representatives, nor the employees or representatives from its subsidiaries or affiliates have been subject to any investigation or prosecution with respect to any activity of promise or improper payment or violation of Anti-Bribery Law;
(iii) Any payments or reimbursement of proven costs and expenses shall not be partially or totally forward to or used, directly or indirectly, even through third parties, for payment to any governmental authority or to any other person for the purpose of improperly influencing a decision by any governmental authority.
9.3. The BUYER agrees to promptly notify BEQUISA in case it becomes aware of any actual or potential violation of the provisions set forth in item 9 and sub-items.
9.4. The BUYER shall promptly cooperate with BEQUISA and/or any party hired by BEQUISA or acting on behalf of BEQUISA, as well as with any regulatory/public entity in any investigation relating to improper payment, actual or alleged, or violation or alleged violation of the laws or policies from BEQUISA, by the BUYER or by any of its partners, employees, agents, collaborators or representatives who supplies services acting on behalf of the BUYER.
9.5. In addition to all other resources available to BEQUISA, the BUYER shall indemnify BEQUISA and keep BEQUISA and/or any of its subsidiaries or affiliates, controlling and controlled parties, as well as any of its employees and managers, fully and effectively harmless from liability, costs, expenses, damages (including any direct, indirect or consequential damages, loss profits, damages to reputation, penalties, and all interests, fines and other legal and professional fees, costs and expenses) incurred by BEQUISA, arising from or relating to the breach of any of the provisions set forth herein.
10. Relationship of the Parties
10.1. The relationship of the Parties established by these Terms and Conditions is merely that of seller and purchaser, and the Parties are not legal representatives, agents, distributors, agents, commissioners, associates, partners or employees from one another, except in case such relationship is regulated otherwise by specific contractual instrument, executed by both Parties in writing.
10.2. No Party shall, at any time, commit or establish any obligation, make any representation or give any warranties, expressly or not, on behalf of each other, or conduct its business with any involvement or control of the other Party, or have any involvement, of any kind, in the relationship between the other Party and its respective clients.
11. General Conditions of the Sale of Products
11.1. The supply of Products and these Terms and Conditions shall be governed by and construed in accordance with the legislation of the Federative Republic of Brazil.
11.2. Any forbearance or endurance, by any Party, in relation to infringement to any agreed obligation or condition shall be deemed mere gratuity and shall not result in novation, useful precedent, tacit amendment to its terms, waiver of rights or vested right of the other Party.
11.3. Any and all communications, notifications and warnings related to the supply of Products and/or arising from these Terms and Conditions shall be made in writing by the Parties and shall be deemed received if sent to BEQUISA’s address provided herein and to the BUYER’s address specified in the Proforma Invoice, or in any other address previously informed by the Parties for such purpose.
11.4. Unless expressly authorized in writing by BEQUISA, the BUYER is prevented from assigning, partially or totally, to a third party the rights and obligations arising from the purchase of the Products.
11.5. Should any of the provisions be invalid or unenforceable, this instrument shall be construed as if such provision has been omitted. The remaining provisions of these Terms and Conditions shall not be affected.
11.6. The Courts of the Judicial District of São Vicente, in the State of São Paulo, is incumbent to resolve any disputes arising from or related to these Terms and Conditions or to the supply of the Products by BEQUISA to the BUYER.