CRISA LIBBEY MEXICO TERMS AND CONDITIONS FOR CUSTOMERS
1.1 These Terms and Conditions for Customers (the “Terms”) apply to and form an integral part of all quotations, offers, and sales made by Crisa Libbey México, S. de R.L. de C.V. (“Libbey”), all acceptances, acknowledgements, and confirmations by Libbey of any orders by Buyer and any agreements (“Agreements”) regarding the sale by Libbey and purchase by Buyer of goods and services (“Products”), unless and to the extent Libbey explicitly agrees otherwise in a writing signed by Libbey’s authorized representative.
1.2 ANY TERMS AND CONDITIONS IN ANY DOCUMENTS ISSUED BY BUYER, WHETHER THEY ARE CONSISTENT, ADDITIONAL, OR CONTRADICTORY TO THESE TERMS, EITHER BEFORE OR AFTER LIBBEY ISSUES ANY DOCUMENT CONTAINING OR REFERRING TO THESE TERMS, ARE HEREBY EXPLICITLY REJECTED AND DISREGARDED BY LIBBEY, AND ANY SUCH TERMS ARE WHOLLY INAPPLICABLE TO ANY SALE MADE BY LIBBEY TO BUYER AND WILL NOT BE BINDING IN ANY WAY ON LIBBEY.
2.1 Prices are based on delivery according to the Incoterm agreed to by Libbey. Prices do not include any taxes, duties, or similar levies, now or later enacted, applicable to the Products. Libbey will add taxes, duties, and similar levies to the sales price where Libbey is required or enabled by law to pay or collect them and these will be paid by Buyer together with the price.
3.1 Net payment is due within 30 days of the invoice date, or such other time as indicated by Libbey on the face of the invoice. No discount is allowed for early payment unless agreed to in writing by Libbey. In addition to all other rights and remedies Libbey may have under applicable law, interest will accrue on all late payments at the rate of 18% per annum or the applicable statutory rate, whichever is higher and to the extent permitted by applicable law, from the due date until paid in full.
3.2 All deliveries of Products agreed to by Libbey are at all times subject to Libbey’s credit approval. If, in Libbey’s judgment, Buyer’s financial condition at any time does not justify production or delivery on the above payment terms, Libbey has the right to require full or partial payment in advance, or other payment terms, as a condition to delivery, and Libbey has the right to suspend, delay, or cancel any performance by Libbey.
3.3 If Buyer defaults in paying any fees or charges due, or if Buyer defaults in any other way, Libbey has the right to refuse performance and/or delivery of any Products until payments are brought current and Libbey has the right to suspend, delay or cancel any performance by Libbey. This right is in addition to, and not in lieu of, any other rights and remedies available at law or in equity.
4.1 Products will be delivered according to an Incoterm agreed to by Libbey. Delivery dates communicated or acknowledged by Libbey are approximate, and Libbey is not liable, nor will Libbey be in breach of its obligations to Buyer, for any delivery made within a reasonable time before or after the communicated delivery date. Libbey will use reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Buyer provides all necessary order and delivery information sufficiently before the delivery date.
4.2 Buyer will give Libbey written notice of failure to deliver and 30 days within which to cure. If Libbey does not deliver within the 30-day cure period, Buyer’s sole and exclusive remedy is to cancel the affected and undelivered portions of the order.
4.3 Title and risk of loss in the Products will transfer from Libbey to Buyer upon delivery of the Products to the delivery point indicated by the applicable Incoterm.
4.4 If Libbey’s production is curtailed for any reason, Libbey will have the right to allocate its available production and Products, in its sole discretion, among its various customers and as a result has the right to sell and deliver to Buyer fewer Products than specified in the Agreement or order, as the case may be.
5.1 You shall not sell, transfer, or otherwise dispose of any U.S. origin products or related software, technical data, documentation, or other products or materials furnished to it, pursuant to any Orders or Agreements, to any party or in any manner which would constitute a violation of the export control regulations or the economic sanctions regulations of the United States (now or hereafter in effect). These export regulations prohibit, without limitation, exports, transshipments, or re-exports of products to: (A) countries, regions, persons, or organizations that are subject to U.S. sanctions as described in the program listed at http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx; and/or (B) entities or individuals that appear on the U.S. government’s: Specifically Designated Nationals List, Denied Persons List, Unverified List, Debarred List, or Entity List, all of which are available at: http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm.
6.1 Libbey warrants that the Products will, at the time of shipping from Libbey’s facility: (A) be free from defects; (B) substantially conform to all applicable specifications; (C) comply with all applicable law; and (D) except with respect to design elements provided by Buyer, not infringe upon the intellectual property rights of any third party.
6.2 If any of the Products consists of glass tableware, the external surface of which is decorated, then with respect to those Products only (which are within the scope of the consent judgment noted below), Libbey will not be liable for any breach or alleged breach of any representation or warranty contained in the Agreement (or in these Terms) based upon a claim that such products violate California Health and Safety Code section 25249.5 et seq. (“Proposition 65”), and Libbey will not be obligated to indemnify, defend, or hold Buyer harmless in connection with any claim that such Products violate Proposition 65, provided that such Products meet the standards in the Consent Judgment between Whitney R. Leeman, Ph.D., et al., as plaintiffs, and Libbey Glass Inc., et al., as defendants, Case No. CGC-03-422691 (San Francisco, CA Superior Ct.).
6.3 THE EXPRESS WARRANTY GRANTED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE THAT HAS NOT BEEN EXPRESSLY COMMUNICATED TO LIBBEY IN WRITING. LIBBEY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY CHANGES OR MODIFICATIONS MADE TO THE PRODUCTS AFTER SHIPMENT FROM LIBBEY’S FACILITY, AND ANY LOGOS, DESIGN ELEMENTS, OR SPECIFICATIONS YOU PROVIDED TO LIBBEY. LIBBEY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES.
7.1 Libbey will indemnify Buyer and Buyer’s directors, officers, employees, agents and affiliates (collectively, “Indemnified Parties”) from and against all liabilities, penalties, fines, losses, damages, judgments and expenses (collectively, “Losses”), to the extent arising from or relating to any one or more of the following: (A) Libbey’s breach of these Terms; (B) Libbey’s infringement of intellectual property rights, provided, however, that the allegedly infringing element was designed solely by Libbey and was actually present in the Product at the time of shipping from Libbey’s facility; (C) Libbey’s or the Products’ violation of applicable law, provided, however that the allegedly violative element was actually present in the Product at the time of shipping from Libbey’s facility; or (D) any injury or death of any person, or loss of or damage to any property, to the extent arising out any defects in the Products supplied by Libbey to Buyer, provided, however, that the defect was actually present in the Product as of the time of shipping from Libbey’s facility.
7.2 Libbey’s indemnification obligations are subject to all of the following: (A) Buyer must use commercially reasonable efforts to preserve and deliver to Libbey any Product with respect to which Buyer is claiming indemnification; (B) Buyer gives Libbey prompt written notice of such claim (which notice must be given in any event prior to the expiration of any applicable period for responsively pleading to any third-party action); (C) this indemnity will not be effective to the extent the loss is a result of the negligence or intentional misconduct of Buyer or any party other than Libbey; and (D) neither Buyer nor Libbey will settle any claim without the other’s approval, unless in each case the settlement absolves from liability the other party.
7.3 You will defend, indemnify, and hold harmless Libbey and Libbey’s directors, officers, employees, agents and affiliates (collectively, “Libbey Indemnified Parties”) from and against all Losses, to the extent arising from or relating to any one or more of the following: (A) Your breach of these Terms; (B) any injury or death of any person, or loss of or damage to any property, to the extent not the responsibility of Libbey under Section 6.1 above; or (C) any design elements or intellectual property provided by Buyer or others to Libbey.
7.4 NOTWITHSTANDING ANY OF THE FOREGOING, TO THE EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, LIBBEY WILL NOT BE LIABLE FOR ANY LOST PROFITS OR SAVINGS, LOSS OF GOODWILL OR REPUTATION, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN RELATION TO THE ORDER OR AGREEMENT, OR THE SALE OF ANY PRODUCTS BY LIBBEY OR THE USE THEREOF WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT, OR OTHER LEGAL THEORY, EVEN IF LIBBEY HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF SUCH DAMAGES.
8.1 Under no circumstances will Buyer institute any recall or withdrawal of the goods without Libbey’s prior written consent, the prior order of an applicable government entity, or a requirement of applicable law.
8.2 Under no circumstances shall Buyer return goods to Libbey without Libbey’s prior written consent. Libbey shall not be obligated to accept returns and its acceptance of returns shall be based on Libbey’s sole discretion, determined on a case-by-case basis.
8.3 Custom Items are: (A) any Products that consist of Libbey stock items that have been decorated at Your requests and/or (B) any Product that was manufactured pursuant to specifications You Provided to Libbey or Libbey created specifically for You. You shall be liable to Libbey for the time and materials expected in fulfilling a Custom Items order when the order is cancelled after production has been scheduled, but before shipment. You shall be liable to Libbey for the full amount of an invoice for a Custom Items order when You cancel the Order after the Custom Items have shipped.
9.1 Buyer acknowledges that all technical, commercial, financial, and personal information disclosed to Buyer by Libbey is Libbey’s Confidential Information. Buyer will not disclose any such Confidential Information to any third party and will not use any such Confidential Information for any purpose other than as agreed by the parties and in conformance with these Terms.
9.2 “Personal Data”. The Parties agree to comply with the Mexican regulations related to the treatment of personal data and information.
9.3 All Confidential Information remains the disclosing party’s exclusive property and nothing in these Terms is an express or implied grant of a transfer, assignment, license, or lease of any right, title, or interest in the Confidential Information. The covenants in these Terms are reasonable and necessary to protect the parties’ business interests. In addition to any other rights and remedies available at law or in equity, the disclosing party will be entitled to damages equal to the total amount of the purchase order for any breach of this Section 8 by the receiving party.
9.4 Upon the earlier of the order’s or Agreement’s termination or Libbey’s request, Buyer will return to Libbey all written information, reports, analyses and like materials furnished to Buyer by Libbey, or prepared for Libbey by Buyer, pursuant to the order or Agreement. Buyer must not use Libbey’s name or the existence of Libbey’s relationship with Buyer in any publicity or promotional efforts. Except as required by applicable law, Buyer will not release to the press, public, or any regulatory agency, any matter relating to any order, Agreement or these Terms without Libbey’s prior written consent. The parties’ rights and obligations under this Section 9 survive any expiration or termination of these Terms or any Agreement, and will continue to bind the parties, their employees, successors, heirs and assigns.
9.5 The parties’ obligations under this Section 9 are subject to Articles 82-86bis, 213, 214 and 223 of the Industrial Property Law (and all other applicable provisions of such law).
10.1 Buyer will comply with Libbey’s Anti-Bribery Policy, as amended from time to time.
11.1 Libbey is not liable for any failure or delay in performance if: (A) the failure or delay results from interruptions in the manufacturing process or (B) the failure or delay is caused by Force Majeure as defined below or by law.
11.2 In case of such a failure as set forth in Section 11.1, Libbey’s performance will be suspended for the period such failure continues, without Libbey being responsible or liable to Buyer for any damages resulting therefrom.
11.3 The expression “Force Majeure” means and includes any circumstances or occurrences beyond Libbey’s reasonable control – whether or not foreseeable at the time of the order or Agreement – as a result of which Libbey cannot reasonably be required to execute its obligations, including default by one of Libbey’s suppliers. If the Force Majeure extends for 3 consecutive months (or if the delay is reasonably expected by Libbey to extend for 3 consecutive months), Libbey will be entitled to cancel all or any part of the order or Agreement without any liability towards Buyer.
12.1 Buyer will not assign any rights or obligations under these Terms or any Agreement without Libbey’s prior written consent. Buyer will have no right to withhold or reduce any payments or to offset existing and future claims against any payments due for Products sold under these Terms or under any other agreement that Buyer may have with Libbey, or any of its affiliates, and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Buyer or on its behalf.
13.1 All offers, confirmations, orders, Terms, and Agreements are governed by and construed according to the provisions of the Commerce Code for the Mexican United States (Código de Comercio para los Estados Unidos Mexicanos), without regard to conflicts of law principles. All disputes arising out of or in connection with these Terms or any Order or Agreement will first be attempted by Buyer and Libbey to be settled through consultation and negotiation in good faith in a spirit of mutual cooperation. All disputes that cannot be resolved amicably will be submitted to the exclusive jurisdiction of the courts of Monterrey, Nuevo León, México, waiving all other jurisdictions which may correspond to them by reason of their present or future domicile, or by any other cause. Additionally, the parties hereby expressly waive the application of these Terms to any of the rules of the United Nations Commission for the Unification of International Trade Law (abbrev. UNCITRAL), including the United Nations Convention on Contract for the International Sale of Goods (abbrev. CISG). Nothing in this Section 13.1 limits either Libbey’s or Buyer’s right under applicable law for equitable relief or to take any action to safeguard its possibility to have recourse on the other party.
14.1 Without prejudice to any rights or remedies Libbey may have under the Terms, any Agreement, or at law, Libbey has the right to, by written notice to Buyer, terminate with immediate effect any order or Agreement or any part thereof without any liability whatsoever, if: (a) Buyer breaches any of these Terms or any Agreement; (b) any proceedings in insolvency, bankruptcy, liquidation or winding up are instituted against Buyer, whether filed or instituted by Buyer voluntarily or involuntarily, (c) a trustee or receiver is appointed over Buyer, or (d) any assignment is made for the benefit of Buyer’s creditors.
14.2 Upon occurrence of any of the events referred to in Section 14-.1, all payments to be made by Buyer under the order or Agreement will be immediately due and payable. If an order or Agreement is cancelled, terminates, or expires, the terms and conditions destined to survive such cancellation, termination or expiration will so survive.
15.1 Any and all notices to be provided to Libbey regarding these Terms or any Agreement shall be in a writing mailed to Crisa Libbey Mexico, S. de R.L. de C.V., c/o General Manager of LatAm, Jose Maria Vigil 400, Col. Del Norte, Monterrey, Nuevo León, México CP 64500.
16.1 If any provision of these Terms is held to be unenforceable for any reason, all other parts nevertheless remain enforceable, and these Terms will be construed and enforced as if the unenforceable provision had never been included.
16.2 The failure on the part of either party to exercise, or any delay in exercising, any right or remedy arising from these Terms or any Agreement will not operate as a waiver thereof; nor will any single or partial exercise of any right or remedy arising therefrom preclude any other or future exercise thereof or the exercise of any other right or remedy arising from these Terms or any Agreement, or from any related document or by law.
16.3 These Terms can only be amended or modified in a writing signed by Libbey’s authorized representative.
16.4 These Terms are binding on the parties, their legal representatives, successors, heirs, and permitted assigns.
16.5 These Terms may be prepared in multiple languages. In the event of a conflict, the Spanish version controls.