General Sales Conditions

These terms and conditions (the “General Sales Conditions”), in addition to any update thereof, are applicable to any sale, quote or offer of materials and/or provision of services (hereinafter, “Material(s)” and/or “Service(s)”) by any company of the Mecalux Group (hereinafter, “Mecalux”) and can only be modified with the express, unequivocal and written acceptance of Mecalux. Accordingly, (a) the issuance of the purchase order by the Mecalux Client (hereinafter, “Client”); the communication by the Client of its acceptance of this offer or quote from Mecalux, (hereinafter, “Quote”) by any means; the manufacture and/or sale of Material or the provision of Services by Mecalux to the Client; and any act that the Client may carry out from the receipt of the Quote shall constitute the Client’s acceptance of these General Sales Conditions, which the Client declares to have read, understood and accepted without reservation; and b) these General Sales Conditions shall prevail over any other terms, clauses or conditions of contract or any others issued by the Client by any means, such as purchase orders, quotations, letters or any other documents referring to Mecalux products and Services, which shall not be applicable. Consequently, any type of conditions that could be considered implicit in the course of the negotiations, dealings or by standard custom, usage or practice will be excluded.

1. Sale of Materials

The INCOTERM applicable to any sale of material shall be the one agreed by the parties and, in the absence of agreement, shall be the INCOTERM EXW 2020 for the corresponding Mecalux factory. In any case, the Client shall bear the cost and the means corresponding to the unloading of the Material(s). The Client undertakes to provide a space in which it shall conveniently store the Materials supplied, either within its facilities or in those of a third party contracted for this purpose. In any case, Mecalux reserves the right to invoice the Client for the custody and maintenance of the Materials in the event that the Client does not meet the Materials receipt requirements. Furthermore, the Client must also assume the risk of loss or damage from the moment at which the Material(s) should have been accepted. In the event that the Materials sold by Mecalux cannot be delivered for reasons not attributable to Mecalux, Mecalux may issue the certificate accrediting the manufacture of said Materials and shall notify the Client so that it may proceed to pay the invoices corresponding to these Materials. In any case, the Client shall assume the transport and logistics costs incurred by Mecalux.

Mecalux shall not be liable for the final destination of the Material(s) supplied or its assembly, when this is carried out by third parties other than Mecalux. This disclaimer of liability applies even if the Material(s) is intended for replacement, modification, extension and/or resale. Any indication of the weight, dimensions and/or components of the material is provided for information purposes only, and, therefore, shall not be binding for Mecalux and shall not, under any circumstances, give rise to adjustments, modifications or price revisions. To the extent English law applies, Mecalux warrants that the Materials will conform in all material respects with their description.

2. Guarantee

Except as otherwise expressly provided in the Quote, Mecalux guarantees the Material against any manufacturing or assembly defect for a period of five (5) years provided always that the assembly and maintenance service during this five-year period have been contracted to Mecalux. In the event that the aforementioned assembly and maintenance conditions are not met, the guarantee will be valid for a period of one (1) year and will only cover manufacturing defects. In the event that the supply includes batteries, they are guaranteed for a period of 1 year or 1,000 recharges, whichever occurs first, provided that the batteries are charged as indicated in the corresponding user manuals. If the supply includes machinery, Mecalux provides a guarantee for the correct functioning of the machinery for a period of one (1) year from commissioning. In the case of software, the guarantee period will be six (6) months from commissioning. In the event that Mecalux is contracted for the assembly of the Material, the guarantee period will begin on the date of completion of the assembly and/or delivery of the Material (whichever is later), unless another date is expressly agreed. The guarantee will come into effect regardless of whether the Material is used or not. If Mecalux is not contracted for the assembly, the guarantee period will begin when the Materials are delivered.

Mecalux only provides this guarantee in respect of the provision of its own Materials and/or the provision of its own Services. The guarantee shall not extend to any products and/or services (or any part of a product or service) supplied by any third party.

The Material guarantee will only be valid if the Client complies with the following conditions:

• That any damage or defect detected is reported immediately, or, in any case, within a period of 24 hours from its detection by the Client. The Client must also follow any instructions given by Mecalux following the reporting of the damage.
• That the Client complies punctually with the payment conditions.

In the case of supplies (other than or in addition to Material(s)) in addition to the above, the guarantee will operate if the following conditions are met:

• That the installation is used appropriately and correctly within the level of service for which it has been configured, conforming to the indications in the corresponding Quote and respecting all specifications established in it.
• That any instructions given by Mecalux are followed, including but not limited to those instructions as set out in the corresponding Quote and in the manual(s) that are provided with the installation.
• That all revisions, maintenance and technical inspection tasks recommended by Mecalux are completed in the correct manner.
• That no interventions or modifications are made to the Material, as well as no disassembly of the components by the Client or any third party without prior express consent from Mecalux or a third party authorised by Mecalux.

For the duration of the guarantee, Mecalux is obliged to repair or replace, at its own expense and with no cost to the Client, the elements or parts showing evidence of abnormal wear (but only where such abnormal wear is not down to Client misuse) or serious manufacturing defects or assembly faults. Normal wear and tear is not covered by the guarantee. Interventions during the guarantee period will be carried out as quickly as possible, subject to the availability of staff to attend to the issues. The new replacement materials will be guaranteed for a period of six (6) months. The replaced parts shall become the property of Mecalux. The guarantee does not cover the following items, which will be billed separately:

• The Materials and workforce required to replace materials whose wear or damage has been caused, for example, by:
  1. Exposure to aggressive and/or corrosive products or environments not foreseen at the time of material supply,
  2. Failure to carry out the appropriate maintenance work in accordance with the indications in the corresponding manual,
  3. Failure to have stored the supplied materials in the conditions and environment required by Mecalux.
• The provision of materials and workforce required to repair damage caused to the installation by third parties or by inappropriate use or maintenance of the installation.
• The provision of materials and workforce required to repair problems in the installation proven to have been caused by improper use of the installation or negligence on the part of the staff in charge of it in reference to situations that are covered in the corresponding manuals that are provided with the installation.
• The provision of materials and workforce required to repair damage caused by impacts, fire or water damage, theft, terrorist attacks, storms, explosions, electronic or nuclear radioactivity, increases or decreases in voltage, faults in the electrical system (where applicable) and, in general, any other damage caused by external factors, force majeure or unforeseen circumstances.

Assembly faults are only covered by this guarantee in the event that the Client has contracted Mecalux to carry out the assembly of the installation. The period and scope of the guarantee are subject to change or may be revoked at Mecalux’s discretion, in cases in which the period for the execution of the installation initially agreed has been suspended or interrupted for reasons unattributable to Mecalux.

3. Charges and Payment

1. The price for Materials:
   1. shall be the price set out in the Quote or, if no price is quoted, the price set out in the Mecalux's published price list as of the date of the order; and
   2. unless otherwise agreed on the Quote, shall be exclusive of all costs and charges of packaging, insurance, transport of the Materials, which shall be invoiced to the Client.
2. The charges for Services shall be set out in the Quote and Mecalux shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom Mecalux engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Mecalux for the performance of the Services, and for the cost of any materials.
3. Mecalux reserves the right to:
   1. increase the charges for the Services on an annual basis with effect from each anniversary of the original commencement date of the Services (“Commencement Date”) in line with the percentage increase in the Consumer Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Consumer Prices Index;
   2. increase the price of the Materials, by giving notice to the Client at any time before delivery, to reflect any increase in the cost of the Materials to Mecalux that is due to:
      1. any factor beyond the control of Mecalux (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
      2. any request by the Client to change the delivery date(s), quantities or types of Materials ordered, or the Materials Specification; or
      3. any delay caused by any instructions of the Client in respect of the Materials or failure of the Client to give Mecalux adequate or accurate information or instructions in respect of the Materials.
4. Mecalux shall invoice the Client as outlined in the Quote.
5. The Client shall pay each invoice submitted by the Mecalux:
   1. immediately, upon receipt of the invoice and
   2. in full and in cleared funds to a bank account nominated in writing by Mecalux, and time for payment shall be of the essence of the contract.
6. All amounts payable by the Client under the contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the contract by Mecalux to the Client, the Client shall, on receipt of a valid VAT invoice from Mecalux, pay to the Mecalux such additional amounts in respect of VAT as are chargeable on the supply of the Services and/or Materials at the same time as payment is due for the supply of the Services and/or Materials.
7. If the Client fails to make a payment due to Mecalux under the contract by the due date, then, without limiting any other remedy available to Mecalux's under these General Sales Conditions, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 3.7 will accrue each day at 5% a year above the Bank of England's base rate from time to time, but at 5% a year for any period when that base rate is below 0%.
8. All amounts due under the contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9. Any Quote shall remain valid for the period appearing on that Quote.

4. Reservation of Title

Until the agreed price or any other amounts owed are paid in full to Mecalux, Mecalux retains title to the Material(s) contracted so the Client shall not execute any act of disposition or encumbrance on them, or move the Material(s) to any other location, until they have been paid in full. Additionally, the Client shall be liable for any damage that may occur to them, even in the event of unforeseen circumstances and force majeure. The Client undertakes and is obliged to duly inform any creditor intending to seize or block all or part of the products subject to the reservation of title that Mecalux holds title to them. Likewise, the Client shall inform Mecalux as soon as possible of the blocking or attempted blocking so that it can take any actions within its legal competence. The reservation of title constitutes a guarantee in Mecalux’s favour and by no means limits or conditions its right to demand and obtain full payment of the price.

5. Intellectual Property

MECALUX, S.A., or the corresponding company within its business group, is the owner of the intellectual property rights of all documentation, plans, manuals, licences and computer programmes corresponding to the contracted Materials and/or Services. All illustrations, images and other graphic information appearing in the Quote are provided solely for information purposes and have no contractual value.

6. Limitation of Liability

Mecalux’s liability for any claims shall in no case exceed the agreed net price. The following are expressly excluded: loss of profit, loss of production and consequential damages, including, in accordance with applicable law, any type of indirect, incidental, special, punitive, speculative, consequential damages, including damages caused by third parties, or due to any loss of profit, revenue, clientele, loss of anticipated capital gains, even if Mecalux has been advised of the possibility of such damages vis-à-vis the Client or third parties, regardless of the cause of such damages. Mecalux assumes no responsibility for any non-compliance caused by circumstances beyond its control, including cases of force majeure and unforeseen circumstances.

Where the Materials and or Services are being contracted for under the jurisdiction of the laws of England and Wales the following clauses shall in addition apply:

1. Nothing in these General Sales Conditions limits any liability which cannot legally be limited, including liability for:
   1. death or personal injury caused by negligence;
   2. fraud or fraudulent misrepresentation;
   3. breach of the terms implied by section 12 of the Sale of Materials Act 1979 or section 2 of the Supply of Materials and Services Act 1982 (title and quiet possession); and defective products under the Consumer Protection Act 1987.
2. Mecalux has given commitments as to compliance of the Materials with relevant specifications in Clause 1 and Clause 2. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Materials Act 1979 and sections 3, 4 and 5 of the Supply of Materials and Services Act 1982 are, to the fullest extent permitted by law, excluded from these General Sales Conditions.

7. Third parties

1. The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under these General Sales Conditions.
2. These General Sales Conditions do not give rise to any third party rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term herein.
3. The rights of the parties to rescind or vary these General Sales Conditions are not subject to the consent of any other person.

8. Personal Data Protection

Mecalux informs the Client that personal data provided by any means, from now on, shall be processed in accordance with the provisions of the Privacy Policy that appears on the website managed by the company of the Mecalux Group with which the Client contracts and that the Client declares to be aware of and accept.

Basic Information of Data Protection:

- Controller: Mecalux
- Purpose: manage the business relationship with Mecalux.
- Legal grounds: The Client’s consent and the legitimate interest of Mecalux.
- Recipients: Companies of the Mecalux Group and their business partners.
- Rights: To access, rectify and delete your data, as well as other rights, as per the Privacy Policy.
- Additional information: You can find detailed data protection information in our Privacy Policy.

To the extent that the laws of England and Wales shall apply, each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including (without limitation) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 and the General Data Protection Regulation ((EU) 2016/679) as retained in UK law. This clause is in addition to, and does not reduce, remove or replace, a party’s obligations arising from such requirements.

9. Code of Ethics

Mecalux’s Code of Ethics establishes the ethical values and principles through which Mecalux’s clients and suppliers, among others, must conduct themselves. The Code of Ethics, as well as any modification and/or update thereof, is available here. The Client declares to be aware of its content and expressly agrees to comply with it. Should Mecalux become aware of any breach of the Code of Ethics by the Client, it reserves the right to terminate the Quote with immediate effects.

10. Applicable law and competent jurisdiction

Unless expressly agreed otherwise, the applicable law shall be that corresponding to the country of the registered office of the Mecalux Group company that issues the Quote, sells the Material and/or provides the Service. The Parties shall expressly submit to the jurisdiction of the courts and tribunals of the city corresponding to the registered office of said Mecalux Group company, expressly waiving any other jurisdiction that may be applicable to the Client for the resolution of any dispute that may arise regarding the compliance with and interpretation of these General Sales Conditions.

11. Severability clause

In the event that any clause and/or provision of these general sale and assembly conditions is declared partially or totally null, invalid, illegal or unenforceable in any jurisdiction, the nullity, validity, legality and enforceability of the remaining provisions shall in no way be affected and/or impaired; such provision shall be ineffective only in the relevant jurisdiction and only in the part thereof that is declared null, invalid, illegal or unenforceable, and the applicable law of the relevant jurisdiction shall apply instead. If any provision or partial provision of these General Sales Conditions is deemed deleted under this Clause 11 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.

12. Notices

Any notice given to a party under or in connection with a contract under these General Sales Conditions shall be in writing and shall be:

1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) or;
2. sent by email to the following addresses (or an address substituted in writing by the party to be served):
   Mecalux: legal@mecalux.com

Any notice shall be deemed to have been received:

1. if delivered by hand, at the time the notice is left at the proper address;
2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting; or
3. if sent by email, at the time of transition, or, if this time falls outside normal business hours in the place of receipt, when business hours resume.

This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

13. Waiver

A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

 

In addition to the General Sales Conditions, the following terms and conditions also apply to any Service and/or assembly provided by Mecalux and any related offer, Quote and/or proposal, as applicable. Where the Client fails to comply with any aspect of its obligations under Clauses 14 to 23 (inclusive) below, Mecalux reserves the right to abandon the Services and terminate the contract (by notice and in writing) with immediate effect.

14. Reception area

Before assembly, both the installation area and access to it must be cleared and obstacle-free. During the assembly period, no interference with other industrial activities should occur. Waiting hours and/or any assembly stoppage will be invoiced separately, in accordance with prices valid at the time of assembly.

15. Supply and Services

The Client must ensure the supply of electricity at 220/380 V, in addition to water and night lighting if these are deemed necessary, as well as the elements and means for the disposal of all the packaging and surplus of materials. Toilets and washing facilities must also be made available to the fitters throughout the working day. Mecalux does not assume, under any circumstances, the unloading of its materials or the means of lifting, scaffolding, forklifts, platforms, scissor lifts, etc.). These supplies will always be provided by the Client.

16. Environment

Fitters will dispose of all waste materials and rubbish (mainly from packaging: plastic, wood, metal banding and cardboard) in the containers provided by the Client. If the Client has an environmental management system, the material will be put into the appropriate containers, or will be left in an area indicated for this purpose, separating the different products.

17. Prevention of Occupational Hazards

Mecalux has an established Occupational Health and Safety Plan. Mecalux remains at the Client’s disposal for the Client to provide any documentation on the prevention of occupational hazards that it deems necessary for such coordination, prior to starting work.

18. Resistance and Surveying of the Floor

The floor should comply with the resistance and surveying specifications indicated in the corresponding Quote, and the Client shall be responsible for its correct delivery. If the floor exceeds the values established by applicable regulations, the excess cost of levelling will be paid for by the Client. Mecalux reserves the right to refuse to perform tasks relating to the assembly until the condition of the surface is deemed adequate. Mecalux shall not be held responsible for this delay. The execution period for the installation is established in the agreed planning document and will begin when Mecalux receives the floor slab.

19. Execution

Unless otherwise provided by law, and where necessary, working hours may not be restricted, and the Client must allow assembly work at night and on public holidays and provide all the means and conditions described in the corresponding Quote on the agreed dates. Days or fractions of days that are affected by force majeure or unforeseeable events (including strikes and pandemics, with actual or future effects) shall not be counted as working days in the agreed turnaround time. Likewise, delays caused by other contractors are not attributable to Mecalux, nor are delays caused by force majeure suffered by any Mecalux subcontractors. If, for any reason unattributable to Mecalux, the course of the installation and/or order is suspended or interrupted, Mecalux may:

1. Withhold the amounts paid by the Client.
2. Issue invoices for payments due, and
3. Claim payment for materials manufactured, assembled or in the process of being manufactured, for work actually carried out, as well as for expenses derived from the stopping and starting of installation work.

Furthermore, the information in the previous paragraphs shall be applicable in the event that the rate of supply or work is affected due to the failure of the Client or third parties to provide the data or elements necessary for the execution of the supply. In this event, the resumption of suspended or interrupted work will include a review of or update to the conditions, including the price and guarantee period. In the event that the delays are unattributable to Mecalux and are incurred at the start of work for a period exceeding 90 days, Mecalux may review or update the amounts. Likewise, if as a result of an unforeseen circumstance it is impossible to deliver the Material and/or the agreed Service or said delivery entails the incurrence of significant unforeseen costs, Mecalux shall have the right to terminate the contractual relationship and shall be entitled to proceed in accordance with the provisions of sections a), b) and c) of this clause.

20. Safekeeping and Protection

The Client shall bear the cost of safekeeping and protection of any Material(s) delivered for the assembly and/or maintenance of the storage equipment. Mecalux shall not be responsible for any damage to the Material in the event that it is left outdoors during the assembly process.

21. Interference with Existing Installations

The Client shall release Mecalux from liability for any damage that may be caused by the assembly or the installation Services if the Client does not provide evidence that it has previously informed the fitting company of the location of the electrical and pneumatic cabling or conduits of any other type that might affect the installation Services.

22. Integrity of the Installation and Quote

The configuration of the warehouse solution is calculated on the basis of the characteristics described in the corresponding Quote for the Services and/or as expressly accepted by Mecalux. Therefore, neither the Client nor any third party may make any changes to the design, replacement of components or repair to the installation Services prior to completion of the assembly without the express written consent of Mecalux. Any work not included in the corresponding Quote will be subject to a separate quotation, as will any modifications requested by the Client after the agreement or Quote has been signed. The price has been calculated based on total provision and based on the specifications provided by the Client. If the Client wishes to change the scope, volume or services included in the corresponding Quote, the price, schedule and other terms in the Quote will be adjusted in accordance with the new conditions. Mecalux shall not be liable for any defect or damages caused to the installation, persons or goods as a result of modifications or alterations to the installation or any of its components, carried out by third parties other than Mecalux during or after the assembly work performed by Mecalux.

23. Other Conditions according to type of Site

It is the Client’s exclusive responsibility to verify the need to request and process, at its own expense, all relevant licences, permits and/or authorisations to carry out and ensure the legality of the installation Services contracted. The corresponding Quote does not include the provision of any consultancy services by Mecalux in this regard. The Client shall fulfil its payment obligations, and will hold harmless Mecalux, even in the event that the relevant licences, permits and/or authorisations are not granted. Failure to obtain the relevant licences, permits and/or authorisations shall entitle Mecalux to terminate the legal relationship and to claim from the Client all damages that this has caused or could cause, including consequential damages and lost profit. Likewise, unless the Client gives prior written notice to the contrary and sufficiently in advance of the start date of the work by Mecalux on site, it shall be understood that the Client already has the necessary licences, permits and/or authorisations that allow Mecalux to carry out the execution of the supply that is the subject of the corresponding Quote. However, if the Client does not contract Mecalux for the assembly, it must ensure that the team completing this task adheres strictly to the assembly instructions in the Mecalux manuals, which will be provided in due course. In this case, Mecalux’s liability for assembly is entirely excluded.

 

Updated 23/06/2023