MASTER AGREEMENT TO ACQUIRE GOODS AND/OR SERVICES (THE “AGREEMENT”) THROUGH PURCHASE ORDERS (“POs”), ENTERED INTO BY AND BETWEEN ROCHE SERVICIOS DE MÉXICO, S.A. DE C.V. AND PRODUCTOS ROCHE, S.A. DE C.V. (HEREINAFTER, JOINTLY OR SEPARATELY, THE “COMPANY”), AND THE INDIVIDUAL OR ENTITY WHOSE INFORMATION IS ESTABLISHED IN THE RESPECTIVE POs (THE “SUPPLIER”, AND TOGETHER WITH THE COMPANY, THE “PARTIES”), IN ACCORDANCE WITH THE FOLLOWING RECITALS AND CLAUSES:
The Supplier states and represents, acting personally or through its legal representative, as applicable that:
1. It is a company duly incorporated under the business laws of the United Mexican States (“Mexico”), whose representative has the necessary powers and authority to execute this Agreement, POs and be bound by the terms of this Agreement and the respective PO´s, and that such powers have not been modified, revoked or otherwise limited to date.
2. All data and information stated in this Agreement and the respective POs is true and accurate.
3. His/its identification data and contact information are as stated in the respective POs.
4. He/it has the necessary and sufficient experience, knowledge, human, economic and material resources, to comply with his/its duties under this Agreement and each of the POs.
5. For all legal purposes relating to this Agreement and the POs, his/its address will be the one set forth in the respective POs (the “Supplier’s Domicile”).
The Company states and represents through its legal representatives that:
1. It is a company duly incorporated under the business laws of Mexico.
2. It has the necessary authority execute this Agreement and the respective POs and be bound by the terms hereof and thereof.
3. Throughout the term of this Agreement and of any PO executed in accordance herewith, any reference to the Company, will be deemed a reference to Roche Servicios de México, S.A. de C.V. and/or Productos Roche, S.A. de C.V., as specified in the respective PO.
4. For all legal purposes relating to this Agreement and the POs, its address is Cerrada de Bezares No. 9, Colonia Lomas de Bezares, Delegación Miguel Hidalgo, México, D.F., C.P. 11009 (the “Company’s Domicile”).
In consideration of the foregoing, the Parties agree to be bound by the following Clauses:
1. Purpose. The purpose of this Agreement is to determine the terms and conditions applicable to the acquisition of goods and/or rendering of services which, through different POs that form part of this Agreement (hereinafter, as applicable the “Goods” or “Services”), the Company contracts with the Supplier, in exchange for the payment of the respective Consideration (as such term is defined below).
The Parties acknowledge that this is a Master Agreement under which different individual agreements for the purchase of goods and/or services will be entered into in accordance with the terms agreed in the relevant PO. The general terms for the purchase of goods and/or services are those described in this Agreement and the specific terms for each individual transaction will be established in the relevant PO’s entered into by the Parties.
The Parties agree that in case of any inconsistency between the terms and conditions set forth in the POs and this Agreement, the provisions of this Agreement shall prevail, unless specifically stated otherwise in this document. This Agreement, as well as the POs that may be executed hereunder, form a single document and therefore, the Parties expressly agree that for purposes of their interpretation the terms of the Agreement and the POs shall be taken into consideration and they must be construed in a comprehensive manner.
Notwithstanding the foregoing, in the case the Parties have entered into a Master Purchase and Sale Agreement or a Master Services Agreement, upon which different individual transactions are entered into and documented in the relevant POs, the provisions of the Master Purchase and Sale Agreement or a Master Services Agreement, as applicable, shall prevail over the provisions of this Agreement. Moreover, the POs and the relevant Master Purchase and Sale Agreement and/or a Master Services Agreement will form a single document and therefore for purposes of their interpretation they must be construed in a comprehensive manner.
2. Consideration. The Company will pay to the Supplier, as total consideration and unique for the acquisition of the Goods and/or the performance of the Services, the amounts described in the respective POs, under the terms and conditions set forth under this Agreement and in the respective POs (the “Consideration”). The Consideration includes any charges for packaging, insurance, shipping, transportation, storage and/or any other charge or expense, including the applicable taxes, for which the Supplier: (i) shall include in the acquisitions of the Goods or in the performance of the Services those activities regarding the packaging, insurance, shipping, transportation, storage and/or any other charge or expense, including the applicable taxes and, (ii) may not make any additional charges for any reason, unless so specified in the respective PO and provided the Company approves such additional charges previously and in writing. The Company will not pay any advances of the Consideration to the Supplier, unless it is expressly agreed in the relevant POs, in which case the POs shall clearly state the amount of the advance payment, the terms and conditions for the granting of the relevant bonds for the advance payment, as well as the terms in which the balance of the Consideration agreed shall be paid.
3. Form of Payment and Invoicing. The Company will pay to the Supplier the Consideration in the form, terms, conditions and periods described in the respective PO, provided all payments by the Company to the Supplier will be made after delivery of the corresponding invoices in the Company’s Domicile or in the place the Company indicates for such purpose in the respective PO. The invoices shall comply with all applicable fiscal requirements in effect.
The Supplier hereby expressly authorizes and empowers the Company to offset any amount, including penalties, that the Supplier may owe to the Company under this Agreement and/or any of the POs executed hereunder, as well as any sanctions, fines or procedures imposed by any relevant authority against the Company derived from any action and/or omission of the Supplier, including the payment of any employer-employee fees (cuotas obrero patronales) to the Mexican Social Security Institute (Instituto Mexicano del Seguro Social), against any amount payable by the Company to the Supplier as Consideration in connection with any PO, this Agreement and/or any other contractual or business relationship between the Parties, including those amounts that are not yet due and payable.
4. Effective Term. Except as otherwise provided below, this Agreement will be in full force and effect for 36 (thirty six) months as of the date of its execution. By virtue of the foregoing, the Parties agree that this Agreement will be in effect until complete performance of each and every one of the obligations assumed by the Parties in terms of this Agreement and of each of the POs issued and/or executed by them under de protection of this Agreement.
Notwithstanding the foregoing, the Parties hereby expressly agree that: (a) the Company may terminate any PO executed and/or issued under this Agreement anticipatorily, without cause and without any liability for such Party, and without requiring any prior judicial resolution, through written notice to the Supplier delivered at least 5 (five) calendar days prior to the effective date of termination; (b) the Company may terminate this Agreement, which will automatically terminate the POs issued and/or executed hereunder anticipatorily, without cause and without any liability for such Party, and without requiring any prior judicial resolution, through written notice to the Supplier delivered at least 10 (ten) calendar days prior to the effective date of termination; and, (c) this Agreement and any of the POs may be anticipatorily terminated and without requiring any prior judicial resolution in case of (i) dissolution and/or if any of the Parties ceases to do business activities, (ii) in the cases provided under this Agreement and/or the relevant PO, or (iii) in case of any bankruptcy, concurso mercantil, reorganization, insolvency, or any other similar proceeding of any of the Parties. If any such proceedings are initiated voluntarily by, or involuntarily against, any of the Parties, the PO will terminate on the date any such proceedings are filed.
5. Terms and Places to Deliver and/or Provide the Services. Returns. (A) The Supplier agrees to observe the terms and places to deliver the Goods and/or provide the Services set forth in the respective POs. In the event the Supplier fails to deliver the Goods and/or provide the Services to the Company’s satisfaction in the terms set forth in the respective POs, the Parties agree that a contractual penalty shall be applied for: (i) such failure to comply with the Supplier’s obligations when due or, (ii) fail to deliver the Goods and/or provided the Services set forth in the respective POs, consisting in a 5% (five percent) discount over the total amount of the Consideration set foth in the respective PO, for each day of delay with respect to the dates for delivery of the Goods or performances of the Services. In such case, the Company’s right to terminate in advance any of the Pos and/or this Agreement, without liability will not be affected. The Supplier assumes the risk in any case, of loss of or damage to the Goods until the moment such Goods are received in accordance with this Agreement, the respective PO and to the Company’s satisfaction.
Notwithstanding the foregoing, in each PO, the Parties may change the penalty referred to before, through a written agreement in the respective PO(s).
(B) The Parties agree that regarding the delivery and risk allocation of the Goods, they may agree the use of the international commerce terms known as “Incoterms”. In this case, the Parties agree that they will establish in the relevant PO the applicable “Incoterm” and will observe their delivery and risk allocation obligations in accordance with the “Incoterm” selected. In case of inconsistency between the selected “Incoterm” in the PO and the provisions of this Agreement, the PO shall prevail.
(C) The Parties agree that the Company may return the Goods it acquired from the Supplier, in accordance with the negotiations the Parties conduct for such purpose and which they document in writing, provided that in any case, the Supplier shall either (i) replace the defective Goods with other goods that meet the characteristics set forth in the respective PO; (ii) deliver substitute goods to the Company’s satisfaction; or, (iii) generate a credit voucher in favor of the Company for the amount of the Good or Goods that were returned. In the case of printed materials, the Company reserves the right to destroy in its facilities such materials and to request the Supplier to replace the Goods or provide the corresponding credit voucher, without such destruction representing the acceptance of the original material. In the case of Services, no Services will be paid for until accepted and received in agreement and to the Company’s total satisfaction.
6. Verification. The Supplier expressly waives the terms provided under article 383 of the Commerce Code. The Company will have a minimum term of 30 (thirty) business days to inspect the Goods delivered and/or verify the Services provided, regardless of their nature, as well as the accessories thereto. After such term elapses, the Company will have 10 (ten) business days to inform the Supplier, if applicable, of any irregularities or shortages found in the Goods delivered and/or the Services provided. Such terms may be modified provided such modification is established in the respective PO.
In the case of any defective, missing or faulty Goods, in accordance with the specifications thereof, or otherwise, Services not provided as agreed upon or any irregularity with the Goods acquisition or in the Services provided, the Company may opt, at its sole discretion, for any of the following: (i) require the Supplier, who agrees to immediately act as requested, to deliver, substitute or replace the inadequate Goods delivered and/or correct the Services inadequately provided; (ii) require the Supplier, who agrees to immediately act as requested, to return the amounts paid in connection with the missing or faulty Goods and/or the Services inadequately provided; and/or (iii) terminate the respective PO without any liability and without need of any judicial declaration. The fact that the Company accepts the substitution and/or repair of the Goods and/or the correction of the Services, does not release the Supplier from the obligation to pay any damages and losses caused to the Company by such failures.
7. Supplier’s Covenants and Warranties. The Supplier agrees to deliver the Goods and/or provide the Services to the Company in accordance with the highest quality standards, complying with the applicable legal provisions, official Mexican norms, conditions agreed on, amounts, trademarks and characteristics set forth in the respective PO. In addition, the Supplier agrees to:
a. Warrant, as the case may be, that the Goods are fit for the purpose for which the Company acquired such Goods and that the Supplier has the necessary experience, human and material resources to provide the Services subject matter hereof.
b. Warrant the proper functioning and quality of the Goods delivered and/or the Services provided, including any manufacturing and hidden defects, for a term of at least 12 (twelve) months as of the date on which the Goods are received and/or the Services are provided to the Company’s satisfaction.
c. Warrant that: (i) the prices of the Goods and/or Services are not and will not be higher than the maximum prices established under the applicable legal provisions and that such prices are the lowest prices the Supplier offers at the moment of execution of the respective PO for buyers similar to the Company under conditions similar to those provided in the respective PO; (ii) the Goods are free from liens or limitations of ownership; (iii) the Supplier has the necessary capacity to transfer title to the Goods, which are fit for the intended purposes; (iv) the Goods and Services comply with all applicable legal provisions, including without limitation, the Consumer Protection Federal Law (Ley Federal de Protección al Consumidor), the applicable Official Mexican Norms and the respective sanitary provisions; and, (v) the Supplier is authorized to market and distribute the Goods and provide the Services subject matter of each of the POs.
d. Provide warranty of title for the Goods and warranty against any hidden defects that may exist in the Goods or the Services, as the case may be, in the terms provided under the Federal Civil Code.
e. (i) Warrant that its representatives-signatories of this Agreement and any POs have the necessary authority to bind the Supplier in accordance with the terms of this Agreement and any POs; and, (ii) Maintain the Company informed in respect of any change that could modify the authority of its representatives as well as of any fact that could impact the fulfillment of the obligations of the Supplier under this Agreement and under the POs.
If the Company, its shareholders, subsidiaries and/or affiliates, directors, board members, officers, employees, advisors, representatives and/or clients suffer any damages or losses resulting from the purchase or use of the Goods or the performance of the Services, the Supplier shall be solely responsible for such damages or losses and shall indemnify the Company, its shareholders, subsidiaries and/or affiliates, directors, board members, officers, employees, advisors, representatives and/or clients therefore. The Supplier hereby expressly releases the Company, its shareholders, subsidiaries and/or affiliates, directors, board members, officers, employees, advisors, representatives and/or clients from any liability that may arise in connection with the foregoing and shall be bound to indemnify and hold the Company harmless from and against any losses, judgments, costs, expenses (including attorneys’ fees), claims, damages, injury, penalties or liabilities in connection with any matter referred under this Agreement or arising hereunder.
8. Supplier’s Legal Obligations. The Supplier agrees to promptly comply with all its obligations established under the laws, regulations and other provisions applicable to the Goods and/or Services contemplated under each of the POs, including without limitation, obtaining all permits, licenses and authorizations, whether municipal, state or federal, that may be necessary to sell, distribute and/or deliver the Goods and provide the Services. Additionally, the Supplier is hereby obligated to pay any damages and losses caused to the facilities, equipment, property and/or personnel of the Company, or third parties, caused by the delivery of the Goods and/or the performance of the Services.
9. Right of Inspection. The Supplier agrees to provide the Company with any information regarding the Goods or the Services that the Company requests within the two (2) business days following the date in which the Company requests such information in writing or by any electronic means. This obligation will continue to be in force during 6 (six) months after the delivery of the Goods or the rendering of the Services referred to in each of the POs entered into pursuant to this Agreement.
10. Labor Relationship. The Parties acknowledge that no labor relationship whatsoever exists between the Supplier’s employees and the Company or between the Company’s employees and the Supplier. Each one of the Parties expressly states that it acknowledges the labor relationship it has with its respective employees, for which each Party will be responsible for the prompt, precise and faithful compliance with the obligations that the applicable laws or regulations impose upon them as employers with regard to their respective employees, and hereby release the other Party from any labor liability in terms of the provisions of the Federal Labor Law, as well as under other labor and social security laws and provisions that may be applicable. In no event and for no reason will the Supplier be considered as direct or substitute employer of the Company’s personnel, nor will the Company be considered as the direct or substitute employer of the Supplier’s personnel.
The Supplier hereby expressly agrees to hold the Company harmless, as well as its shareholders, subsidiaries and/or affiliates, directors, board members, officers, employees, advisors and representatives from and against any accusation, lawsuit, complaint or claim of any nature filed by any of the Supplier’s employees against the Company, its shareholders, subsidiaries and/or affiliates, directors, board members, officers, employees, advisors and representatives (hereinafter the “Labor Claims”); as well as to pay any damages and/or losses, expenses and/or costs of any nature, including attorneys’ fees, generated or that may be generated as a result of any Labor Claims against the Company, any of its shareholders, subsidiaries and/or affiliates, directors, board members, officers, employees, advisors and representatives.
Additionally, the Supplier agrees to deliver to the Company, within the 5 (five) business days of the month that corresponds, evidence corresponding to the payment of the employer-employee fees (cuotas obrero patronales) to the Mexican Social Security Institute (Instituto Mexicano del Seguro Social), in relation with its personnel linked to this Agreement and/or the respective PO´s of the previous immediate month.
11. Environmental Liability. If applicable to the sale of the Goods and/or the rendering of the Services under this Agreement and the respective POs, the Supplier agrees to comply with the laws, regulations, official Mexican norms, decrees, resolutions and any general and mandatory provisions relating to environmental protection and labor safety and health in effect in Mexico. The Supplier hereby agrees to assume any kind of environmental liability that may arise in connection with this Agreement as a result of the sale of the Goods or the rendering of the Services. Therefore, the Supplier hereby expressly agrees to hold the Company harmless, as well as its shareholders, subsidiaries and/or affiliates, directors, board members, officers, employees, advisors and representatives from and against any accusation, lawsuit, complaint or claim of any nature filed in connection with the provisions of this Clause against the Company, its shareholders, subsidiaries and/or affiliates, directors, board members, officers, employees, advisors and representatives (hereinafter the “Environmental Contingencies”); as well as to pay for any damages and/or losses, expenses and/or costs of any nature, including attorneys’ fees, generated or that may be generated as a result of any Environmental Contingencies against the Company and any of its shareholders, subsidiaries and/or affiliates, directors, board members, officers, employees, advisors and representatives.
12. Intellectual Property. The Supplier hereby agrees not to infringe trademarks, industrial or intellectual property of any kind pertaining to the Company or third parties (in this last case that would create a liability for the Company) (together, the “Industrial Property”). The Company states that by no means this Agreement creates in favor of the Supplier the right to use or exploit the Industrial Property of the Company or its affiliates. As a result of the foregoing, the Supplier agrees not to perform, directly or indirectly, actions that could endanger the Company´s Industrial Property, as well as not to use, individually or in a combined manner, the registered trademark, the logo and/or symbols used by the Company or its affiliates, other than for the fulfillment of the obligations established pursuant to this Agreement or in any of the PO´s executed hereunder. Likewise, the Supplier hereby acknowledges that the execution of this Agreement does not imply the transfer or assignment of rights of the Industrial Property owned by the Company nor it makes the Supplier a licensee of the Company.
The Supplier hereby expressly agrees to hold the Company harmless, as well as any of its shareholders, subsidiaries and/or affiliates, directors, board members, officers, employees, advisors and representatives, from and against any accusation, lawsuit, complaint or claim of any nature, in Mexico or abroad, relating to the Industrial Property or to the use, handling or exhibition of any image, design and/or creation protected by intellectual property rights, industrial property rights and/or copyright that are in any way included in or relative to the PO, or the Goods and/or the Services contemplated therein, as well as the exclusive processes protected by the applicable laws (hereinafter, the “Claims”). By virtue of the foregoing, the Supplier agrees to pay any damages and/or losses, expenses and/or costs of any nature, including attorneys’ fees, that are or may be generated as a result of any Claims against the Company, as well as any of its shareholders, subsidiaries and/or affiliates, directors, board members, officers, employees, advisors and representatives.
13. Bonds. If the Parties so agree in writing in the respective POs, the Supplier must provide, in the Company’s favor, the bond(s) the Parties determine in each one of the POs.
The Company may require the Supplier in the respective PO, to provide a bond to guarantee the proper use of the advance the Company grants, if any, for the total amount of such advance (“Advance Bond”). Likewise, depending on the Goods or Services acquired through the POs executed under this Agreement, the Company may require the Supplier, in the respective PO, to grant a bond to guarantee exact and faithful compliance with all of the Supplier’s obligations, which shall be for an amount equal to 10% (ten percent) of the total amount of the Consideration of each of the POs (“Performance Bond”). Moreover, depending on the purpose of each PO, the Company may require from the Supplier a bond to guarantee the quality of the materials, equipment, workmanship, deficient works, manufacturing and/or hidden defects, which shall be for an amount equal to 10% (ten percent) of the total amount of the Consideration of such PO (“Quality and/or Hidden Defects Bond”). Such Quality and/or Hidden Defects Bond will be cancelled within 12 (twelve) months after the date of delivery of the materials and/or equipment (even when such materials are used to perform work for the Company’s benefit). The Parties will agree in writing the terms and conditions to cancel the bonds.
The Company may also require from the Supplier in the respective PO, a bond for an amount equal to 10% (ten percent) of the total Consideration of each PO, to guarantee Labor Claims, social security and workers’ housing fund (Infonavit) claims that may arise as a result of the execution of the PO (“Labor Contingencies Bond”).
The Parties agree that the abovementioned bonds constitute guarantees for the performance of the obligations of delivery of the Goods and performance of the Services contemplated in the POs. However, the Company is not obligated to enforce such bonds prior to initiating or enforcing any kind of action or right arising under this Agreement and/or the POs.
The Supplier expressly agrees to ensure that the texts of the bonds such party obtains in terms of this Clause, contain the following provisions: (i) the waiver by the bonding company of any benefit, whether of priority, division or exclusion or any other benefit that allows it to not be jointly liable for the payment of the amounts established in such bonds, due to the default of the obligations provided in the respective PO; (ii) that in case the term indicated to deliver the Goods or perform the Services is extended or a waiting period exists, the effective term of the bond will be automatically renewed in accordance with such extended term or waiting period; (iii) that the only party authorized to cancel the bonds is the Company which, for such purposes, shall send written notice to the bonding company; and, (iv) that in case of any claim from the Company for the Supplier’s default, the bonding company will expressly submit to the execution procedure in force at that time pursuant to the Federal Bonding Companies Law (Ley Federal de Instituciones de Fianzas). In addition to the foregoing, the texts that the Company provides in writing for such purposes shall be included in the bonds and the Supplier will be bound to submit to the Company’s consideration the text of the bond policy, in order to obtain the Company’s agreement and/or relevant comments.
The Supplier must contract the bonds established above with any of the bonding companies the Company authorizes for such purposes. The Company reserves the right to carry out the validation of the bonds through any means it deems pertinent, including without limitation, the right to appoint a broker to obtain such bonds, for which the Supplier must accept such validation. The Supplier will pay in full the amount of the corresponding premiums.
If the Supplier fails to deliver to the Company the policies of the respective bonds within 15 (fifteen) calendar days after the date of acceptance of each PO, the Company may terminate this Agreement and all the POs executed and issued hereunder, without requiring a judicial declaration and without any liability for the Company. Notwithstanding the foregoing, the Company may, at its sole discretion, waive the granting of bonds by the Supplier, which waiver will be stated in writing in the relevant PO.
14. Insurance. At the Company’s express request upon the execution of each PO or at any prior or subsequent time, the Supplier must obtain and maintain in effect at such party’s sole expense, for each PO issued and/or executed, General Liability insurance covering physical damages and personal injuries that could be caused during the effective term of the PO, as well as the damages caused by the activities the Supplier carries out within the facilities and properties of the Company or of third parties. The policy must cover liability and claims for personal injury and damages, property damages, damages to the general means of communication and environmental damages, subject to a single and combined limit of at least USD$100,000.00 (One Hundred Thousand Dollars 00/100 Legal Currency of the United States of America), or the equivalent thereof in National Currency or otherwise, to the amount agreed for such purposes in the relevant PO. Such insured amount does not limit in any way the Supplier’s liability and the applicable deductibles must be paid and/or covered by such party. The Supplier will provide to the Company a copy of the insurance policy, indicating that the abovementioned insurance has been contracted and is in effect with an insurance company duly authorized under law of recognized prestige in the market, and stating that the corresponding premiums have been paid, as well as that in the event of damages to the Company’s properties and/or facilities, the Company will be the preferred beneficiary, and that it is an additional insured and co-insured party in case of personal injury or property damages to third parties or environmental damages. The Supplier and the insurance company must notify in writing the Company 30 (thirty) natural days in advance of any amendment relating to risks and coverage. A waiver of subrogation rights clause must be included in any right to make any claim against the Company. The insurance policy must have a non-cancellation endorsement and must be in effect throughout the time the respective POs are in effect.
15. Default and Termination in Advance. The Parties hereto hereby expressly agree that Supplier’s default of any of the obligations assumed under the POs and/or this Agreement will give rise to the Company’s right to terminate this Agreement and/or any of the POs executed and/or issued hereunder and the other POs executed with such Supplier, without requiring any prior judicial declaration or administrative proceeding, and without any liability for the Company. Additionally, and without prejudice of the foregoing, in case of default by the Supplier of any of such party’s obligations under this Agreement and/or any of the POs, the Supplier will pay the Company a contractual penalty for such default equal to 100% (one hundred percent) of the Consideration established in this Agreement and in each PO, independently of the bonds and applicable insurance provided.
16. Confidential Information. The Supplier agrees to maintain the strictest confidentiality and not to disclose to any third party any documents or other proprietary material of the Company or its subsidiaries or affiliates related with, created by or that pertains to the Company, whether or not in connection with the development and performance of this Agreement and the POs executed hereunder, and that is shared with or disclosed to the Supplier. Additionally, the Supplier agrees to cause the Supplier’s employees, directors, officers, shareholders and agents or representatives to maintain the confidentiality of all the information they may have access to relating to this Agreement and the POs and not to disclose it to third parties, without the Company’s prior written consent, except in the cases required by law or at the request or order from a competent judicial, regulatory or government authority.
Any report, statement, result or publication of the Company in connection with this Agreement and the POs executed hereunder or any other negotiation deriving herefrom or therefrom, must be reviewed and approved in writing by the Company. Even after the termination of this Agreement and the respective POs, the Supplier agrees to maintain the confidentiality obligation for 5 (five) years as of the date of termination of the last PO executed under this Agreement.
17. Consent, Acceptance and Entire Agreement. This Agreement and the respective POs will be deemed accepted by the Supplier in any of the following cases (i) upon the signature hereof or thereof; and/or, (ii) upon the delivery of the Goods or when the Services begin to be performed, even if the Supplier has not signed the corresponding POs.
Additionally, the Parties agree for all legal purposes, that all POs executed and issued hereunder together with this Agreement, will be considered as a single document and will be valid between the Parties, even if the POs are not signed by their respective legal representatives.
18. Conflict of Interests. The Supplier states that there is no impediment or conflict of interests to execute and perform this Agreement and/or the POs. In case that due to conflict of interests or any other reason, the Supplier is unable to handle any matter with respect to any PO, such party will immediately notify the Company in writing.
19. Non Compete. For the duration of this Agreement and during the 5 (five) years following its termination, for any cause, the Supplier agrees to notify the Company in case it is going to transfer Goods or render Services identical or similar to those established in the applicable PO´s to a third party competitor of the Company. The Company may oppose to the above mentioned activities by written notice to the Supplier, including by e-mail. For these purposes, the Company will determine to its entire discretion when a third party is competitor.
20. Independent Contractor. The Supplier shall perform his/its obligations under each PO as an independent contractor and not as an agent or partner of the Company. In the performance of his/its obligations under the POs, the Supplier shall observe his/its performance standards in accordance with such POs, in the absence of any specific standard, and shall exercise the same degree of care, skill and diligence as a prudent business corporation of recognized prestige in the applicable field in the protection and promotion of its own interests. The Supplier shall perform his/its obligations under this Agreement and the POs as if pertaining to his/its own business, consistent with sound commercial practices and pursuant to the applicable standards of the relevant industry.
21. Notices and Communications. All notices and communications deriving from the POs, must be in writing, in Spanish and addressed to the Supplier’s Domicile or the Company’s Domicile, as applicable. Such notices and communications must be delivered personally, by certified mail with return receipt or transmitted by facsimile addressed as described above, and will be effective if delivered by courier, on the date of receipt, or if sent by facsimile, when transmitted and confirmation of receipt is received. If any of the Parties changes its domicile, it shall notify the other Party in writing at least 15 (fifteen) calendar days prior to the effective date of change, provided that notices relating to a change of domicile will be effective after receipt thereof. The Party giving the notice must obtain confirmation that such notice has been received.
22. Assignment and Subcontracting. Neither this Agreement nor any of the POs may be assigned in whole or in part by any Party without the other Party’s prior written consent, except for an assignment by the Company to its shareholders or any of its subsidiaries or affiliates, in which case the Supplier’s consent will not be required. Additionally, the Supplier is expressly prohibited from subcontracting the performance of the POs with third parties, without the Company’s prior written consent.
23. General Provisions. The rights arising under the POs in favor of the Company are additional to any other rights pertaining to it in terms of the applicable legal provisions. Any waiver by the Company of one or more of its rights under certain POs will not imply the waiver of any other rights it may be entitled to in accordance with the respective POs or the law. Any amendment to the terms of this Agreement or the POs must be in writing and signed by the Parties. The Parties agree that the headings of each of the Clauses are for convenience purposes only and shall not be taken into account in construing the POs. The Exhibits to the POs, if any, constitute an integral part thereof, and are fully incorporated by reference. If any of the obligations under the POs is unenforceable or invalidated by any court of competent jurisdiction, the enforcement and validity of the remaining obligations will not be affected. This Agreement and all the POs executed hereunder, constitute the entire agreement between the Parties and render ineffective all prior agreements and understandings, whether verbal or written, between the Parties with respect to the subject matter of this Agreement and each of the POs.
24. Applicable Law and Jurisdiction. Las Parties agree that for the interpretation and enforcement of this Agreement and the POs, the laws of Mexico City, Federal District, will be applicable, and irrevocably submit to the jurisdiction of the competent courts of Mexico City, Federal District, waiving any other forum they could be entitled to by reason of their current or future domicile or any other cause.