1. General

The following General Terms and Conditions of Sale and Delivery (hereinafter “Terms and Conditions”) shall form an integral part of each contract entered into by Polykey Polymers S.L. (hereinafter “POLYKEY”) and its customers. Terms and conditions of business deviating from the following Terms and Conditions shall only apply if they have been expressly confirmed by POLYKEY in writing. They shall not be binding on POLYKEY even if they are not specifically rejected. Acceptance of deliveries shall at all events be regarded as recognition of the following Terms and Conditions of POLYKEY.

Each and every form of use for human or animal medical purposes shall be at the exclusive risk of the buyer. The possibility of health damages or risks has not been fully researched with many products. Furthermore, for health and safety reasons, we shall not supply chemicals to private individuals or deliver to residential addresses. Orders will be accepted from bona-fide business customers only.

2. Conclusion of contract

Buyer and POLYKEY may enter into order forms from time to time under this Terms and Conditions. This Terms and Conditions solely governs any purchase or use of products made available pursuant to such order except to the extent expressly indicated otherwise in such order form. The buyer’s order shall only be valid upon receipt of a written order acknowledgement by POLYKEY; prior quotations by POLYKEY shall be subject to change prior notice. The substance and scope of the order shall be determined by the order acknowledgement. Information provided on technical data prior or together with the order acknowledgement, e.g. dimensions, weights, etc., as well as documents made available to the buyer, e.g. illustrations and drawings, shall only be binding if they have been expressly confirmed by POLYKEY in writing. Any ancillary agreements must be confirmed by POLYKEY in writing.

3. Prices and payments

List prices at the time of delivery shall apply and – in the case of successive delivery contracts – for the undelivered quantities. All prices shall be subject to value-added tax at the statutory rate (cf. Section 5 for dispatch costs). Any changes occurring after the purchase contract concerning raw material prices, customs duty, information on the products and freight, etc., shall be credited or charged to the buyer immediately in the case of a continuing obligation and otherwise 4 (four) months after the date of the contract. Unless expressly agreed otherwise, payment shall be made by bank transfer within 30 (thirty) days of the invoice date to the account’s office or bank account of POLYKEY. If a deduction has been agreed, this may only be claimed if all outstanding invoices on the date in question have been settled at least simultaneously.

If installment payments have been agreed, POLYKEY shall be entitled to demand immediate payment of the purchase price regardless of any agreed maturity date if an agreed payment date is not upheld by the buyer, if a bill of exchange is protested or if payments are suspended and shall also be entitled to refuse execution of further deliveries or acceptance of further orders until settlement has been affected by the buyer.

The withholding of payments by the buyer, or the deduction of any counterclaims of the buyer contested by POLYKEY, shall be excluded.

4. Delivery period

POLYKEY shall make every effort to dispatch deliveries within the agreed delivery period. POLYKEY shall inform the buyer if the delivery period will be longer and shall reserve the right to make part-deliveries.

All agreed delivery dates shall be subject to proper and due receipt by POLYKEY; however, the delivery period shall commence upon dispatch of the order acknowledgement but not before the buyer has performed any preliminary obligations.

5. Dispatch and transfer of risk

The products to be delivered shall be dispatched and packed in line with customary trade practices. Shipments shall be, at all events, made at the risk of the buyer.

6. Intellectual Property

Intellectual and industrial property rights shall mean (i) all rights granted by intellectual property law, which are assets or exploitation (including, but not limited to, the rights of reproduction, distribution, public communication, transformation and making available to the public), for any purpose, by any means or procedure, whether analog or digital, and for any kind of use, including rights related to copyright and rights of author and sui generis database rights l, (ii) all rights granted by industrial property law (including without limitation, trademarks, trade names, designs, patents or utility models), (iii) all rights granted  by trade secret law, (iv) image rights; and (v) Internet domain names, including in all cases the ability to apply for registration and pertinent registration to obtain or protect these rights.

POLYKEY shall retain its title to the delivered products pending receipt of all payments under the delivery contract. Each and every adaptation and processing of the products delivered as well as their combination with third party chattels by the buyer or third parties shall be made on behalf of POLYKEY without any commitments being assumed by the aforesaid as a result.

The buyer acknowledges that POLYKEY shall reserve all the Intellectual Property and Industrial Property Rights regarding the products and/or any results that may derive from its use will remain the exclusive property of POLYKEY. The aforesaid may not be made available to any third parties.

Nothing contained herein shall construe as or operate to grant any license to the buyer in respect of any of POLYKEY’s existing or future technical, engineering, scientific, marketing, financial and commercial information, process description, designs, inventions, copyright material, know-how, ideas, studies, conclusions, data, samples, models, drawings, charts, graphs, photographs, reports, letters, specifications, patents, manuals, tables, formulae, formulations, processes, operating and testing procedures or other intellectual property rights.

7. Third party property rights

If POLYKEY is required to deliver products based on the buyer’s drawings, specifications, specimens and samples, etc., the latter shall be responsible for ensuring that POLYKEY infringes no third party property rights as well as the risk of the suitability of the products for the intended purpose and the buyer shall indemnify POLYKEY against all actions, losses, damages, expenses, costs or other liability including legal fees arising from any claims of infringement of third party intellectual property rights.

POLYKEY accepts no liability (to the extent permitted by Spanish law) for any claims made against a customer for any infringement of third-party intellectual property rights in connection with the sale of products by POLYKEY.

If POLYKEY is forbidden to produce and deliver products produced on the basis of the buyer’s drawings, specifications, specimens and samples, etc., POLYKEY shall – without being obliged to examine the legal position and excluding all and any compensation claims on the part of the buyer – be entitled to discontinue production and delivery and to demand compensation from the buyer for the costs sustained as a result. This shall not prejudice additional compensation claims on the part of POLYKEY.

8. Termination events.

The Contract may be terminated by agreement of the Parties in writing.

In addition, if POLYKEY does not duly perform or fails to duly perform contractually («breach of duty»), then the buyer shall only then be entitled to withdraw from the contract or to damage compensation instead of the performance:

(a) if the breach of duty by POLYKEY is not insignificant, provided that the buyer demands of POLYKEY in writing to perform within an appropriate period of at least 14 (fourteen) days from the date the request is received, and POLYKEY has nevertheless failed to perform within this period.

(b) POLYKEY fails to comply with the applicable laws and/or regulatory requirements.

(c) If so required by the competent authority.

If POLYKEY should have not performed or not performed contractually within the due period set by the buyer, then POLYKEY can request that the buyer within an appropriate period declares whether the buyer continues to insist on the performance. POLYKEY is not obliged to perform until the buyer decides.

9. Liability for defects

POLYKEY shall be liable for defective products as follows:

Complaints by the buyer presuppose that the buyer has observed its due obligations of inspection pursuant to Spanish commercial law and has complained identified defects immediately, or no later than 8 (eight) days following identification, in writing to POLYKEY.

POLYKEY assumes liability that the object of the contract is free of defect for a period of 30 (thirty) days beginning with the delivery date.

Claims of the buyer due to defects are excluded in cases of insignificant material defects. An insignificant material defect is then especially the case if the value or the suitability for a usual application is only insignificantly diminished.

In the event that objects of the contract are defect, then POLYKEY can at its own discretion firstly undertake to deliver replacement or improvement (subsequent performance). Subsequent performance is excluded if POLYKEY sustains disproportionate costs thereby.

If the subsequent performance should fail, is refused, is unreasonable or if the buyer has set POLYKEY a due period for subsequent performance that has not produced results or if the setting of a due period may be dispensed with, then the buyer is entitled to demand reduction or to withdraw from the contract. The right to demand compensation for damage or for expenditure in vain shall not be prejudiced.

Possible health damages and risks have not been fully researched with many products. POLYKEY shall not be liable for damages arising from improper use, storage, etc., by the buyer or a third party, or as a result of natural wear and tear. Technical information insofar as known to POLYKEY shall be passed on to the buyer.

10. Related obligations

Technical application advice by POLYKEY in word and deed shall be non-committal, also in respect of any third-party property rights, and shall not exempt the buyer from his/its own examination of the products of POLYKEY with regard to their suitability for the intended purpose. Any human or animal medical application shall be made on the exclusive responsibility of the buyer.

the buyer undertakes to:

(a) Pay the agreed price in relation to the services set forth herein, in the manner and time agreed, in accordance with the provisions of this Terms and Conditions.

(b) Cooperate reasonably and to the maximum extent possible, so that POLYKEY can deliver a satisfactory product to the buyer, subject of this Terms and Conditions. For this purpose, POLYKEY shall inform the buyer of any material deficiency or omission of information that is relevant to the correct provision of this Terms and Conditions.

(c) The buyer shall be responsible for all use of the Products and application of the Terms and Conditions set hereunder, including without limitation any unauthorized use of the products.

(d) The buyer shall use the products in compliance with the Terms and Conditions, applicable laws, rules and regulations, and any feature-specific rules that are agreed by the parties.

(e) The buyer shall not directly or indirectly (i) use the Products in manner that violates, or causes POLYKEY to violate, any data privacy law, data export laws, or other laws related to the use, sharing, storage or processing of personal data, (ii) use the Products in a manner that violates any third party intellectual property or other proprietary rights, (iii) reverse engineer, disassemble, or use other means to attempt to discover any undisclosed feature of the Product or the underlying ideas or trade secrets therein, or (iv) permit any third party to engage in an of the foregoing acts.

11. Liability

POLYKEY shall only be liable if the damage has been caused in culpable breach of an essential contract duty in a way that endangers achieving the purpose of the contract or by gross negligence or willful conduct on the part of POLYKEY.

If POLYKEY is liable for the breach of an essential contractual duty in a way that does not constitute gross negligence or willful conduct, then the liability shall be confined to that scope of damage the occurrence of which it would typically have had to reckon with according to the circumstances known to it at contract conclusion. The foreseeable typically occurring damage amounts thereby to the value of the goods delivered within the framework of the contractual relationship.

This shall not prejudice damage claims pursuant to product liability law and due to injury to life, body or health.

EXCEPT AS PROVIDED IN CLAUSE ELEVEN HEREOF, UNLESS REQUIRED BY APPLICABLE LAW, THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS”, WHITHOUT ANY WARRANTIES OF ANY KIND. POLYKEY AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, CORRECTNESS, RELIABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY DISCLAIMED. 

12. Assignment and subcontracting

This Terms and Conditions may not be assigned, transferred or subrogated to third parties, without the express consent and authorization of the parties.

For such an assignment to be valid, the assignee must sign the contract, or expressly state in writing that he/she is subrogated to the rights and obligations derived from it.

When POLYKEY considers it necessary to subcontract part of the object of the present Terms and Conditions, it will not be necessary to request express written authorization from the buyer.

Notwithstanding the foregoing, PLOYKEY will demand in writing from its subcontractors the same obligations and responsibilities that are included in this Terms and Conditions.

13. Confidential Information

13.1. Treatment of Confidential Information.

The Parties may exchange Confidential Information in order to execute the obligations set out in the contract and undertake to take the necessary and appropriate precautions to keep the information so defined as confidential, and in particular:

To use the Confidential Information in a reserved manner.

Not to divulge or communicate the Confidential Information provided by the Issuing Party.

Prevent the copy or disclosure of such information to third parties, unless they have the written approval of the Issuing Party and only under the terms of such approval.

Restrict access to the Confidential Information to their respective employees, associates, subcontractors and any person who, due to their relationship with the Parties, may or should have access to such information, warning of such duty of confidentiality.

To use the Confidential Information or fragments thereof exclusively for the purposes of the execution of the contract, abstaining from any other use.

The Parties shall be responsible among themselves for the breach of this obligation, whether by their employees, associates, subcontractors or any other person to whom they have disclosed the Confidential Information.

In the event that there is legislation in force regarding the protection of personal data, the Parties declare their acknowledgement and respect for the same.

13.2. Exceptions to the treatment of the Confidential Information.

Without prejudice to the provisions of the preceding clause, the Parties may use or disseminate Confidential Information that:

is of public knowledge or comes to public knowledge by means other than a breach of this Terms and Conditions or the contract signed between the parties, by any of the Parties, or.

has been generated, independently, by or for the Receiving Party, without any connection with the Confidential Information, and provided that such generation can be documented at the request of the Issuing Party, or

it was known to the Receiving Party prior to the date on which it was received from the Issuing Party, provided that the Receiving Party can prove it with documentary evidence, or

the information received comes from a Third Party that does not require secrecy, or

it must be communicated by law or by judicial or administrative requirement. In this case, the Receiving Party shall immediately notify the Issuing Party of such requirement so that the latter may file the appropriate precautionary measures and shall not disclose more Confidential Information than that which is strictly required by the judicial or administrative order.

14. Safeguard

All the clauses or points of these Terms and Conditions must be interpreted independently and autonomously, and the rest of the stipulations will not be affected in the event that one of them is declared null and void by a final court ruling.

15. Force Majeure

No Party shall be held liable to the other Party, or be deemed to have defaulted under or breached this Terms and Conditions, for failure or delay in performing any obligation under this Terms and Conditions to the extent such failure or delay is caused by or results from causes beyond the reasonable control of the affected Party, potentially including, but not limited to, epidemics, pandemics (including COVID-19), embargoes, war, acts of war (whether war be declared or not), acts of terrorism, insurrections, riots, civil commotions, strikes, lockouts or other labour disturbances, fire, floods, or other acts of God, or acts, acts by any governmental authority (including shelter-in-place orders, quarantine orders, or lock down orders), or unavailability of materials. The affected Party shall notify the other Party of such force majeure circumstances as soon as reasonably practical and shall promptly undertake and continue diligently all reasonable efforts necessary to cure such force majeure circumstances or to perform its obligations in spite of the ongoing circumstances.

16. Miscellaneous

The place of performance for all obligations arising from the contractual relationship shall be the registered domicile of the branch of POLYKEY executing the delivery.

With all disputes arising from the present contractual relationship, the parties hereto irrevocably submit to the exclusive jurisdiction of the Courts and Tribunals of the city of Donostia/San Sebastián, and expressly renounce any exceptions opposing the jurisdiction of the said Courts and Tribunals.

This Terms and Conditions is of commercial nature and the relationship between the buyer and the POLYKEY will by no means be considered as an employment relationship.

The present Terms and Conditions of business shall be governed by Spanish Law.