Effective date: October, 12 2017
Diavaz and its affiliated companies (collectively referred to as “Diavaz”) are committed to ethical and legal conduct in all activities and businesses we perform. To maintain our reputation for honesty and integrity and to comply with the law, Diavaz refrains from performing any conduct that could corrupt our relationships with vendors, customers, government officials or others. Our directors and employees are unable to offer or provide anything of value, or other financial benefits, directly or indirectly, to any individual under circumstances that may induce the person to perform dishonest, unethical or illegal actions. Nor can we request or accept anything of value, or other financial benefits, directly or indirectly, from any person under circumstances that may represent a conflict of interest or seem to be a malfeasance induction on our behalf. In addition, we seek that all contractors, consultants, agents, brokers, freight forwarders and any other external third party, act on behalf of Diavaz around the world (“Representatives”) under the same standards in which we operate.
Increasingly, Mexico and more nations have laws that criminalize corrupt acts. These laws include the Federal Criminal Code and the General Law of Administrative Responsibilities of the National Anti-Corruption System, as well as the Criminal Codes of each Mexican state (31 in total) and the Mexico City (Federal) Criminal Code (collectively referred to as “Mexican Anti-Corruption Laws”), the US Foreign Corrupt Practices Act and other international anticorruption laws (collectively referred to as “Laws”). The FCPA is relevant regardless of whether Diavaz’s business is performed mainly in Mexico, as the FCPA can still apply in situations of slight connection with the United States. In addition, foreign companies with which Diavaz conducts business may be subject to the FCPA, and therefore, expect Diavaz to comply with the law requirements.
The Diavaz’s Comprehensive Anticorruption Policy (the “Policy”) provides information on the Laws and describes the manners in which Diavaz, its directors, employees, and Representatives are bound by them. Due to the complexity of Laws, no director, employee or Representative should determine how the Laws apply to a particular situation without first consulting the Diavaz’s Legal Manager (“Legal Manager”).
Non-compliance of the Laws could create negative advertising for Diavaz, which in turn could damage relations with stakeholders. Furthermore, violations of the Laws could have a serious impact on both Diavaz and the people involved, including civil or criminal penalties such as fines or prison sentences. Diavaz may request the resignation of any director who has breached any provision or terminate the employment relationship of any perpetrator employee, or terminate the contract or partnership with the offending Representative. Diavaz could retrieve any compensation paid to the offending Representative.
I. The Laws Behind This Policy
This Policy applies, on a global scale, to Diavaz and its affiliated companies, their directors, employees (including officers) and Representatives. Specifically, any person acting on behalf of Diavaz, as well as Diavaz itself, might be subject to the Mexican Anti-Corruption Laws. This Policy obliges directors, employees and Representatives to comply with all Laws, including those described below.
A. Mexican Anti-Corruption Laws. Among other things, these laws prohibit:
B. The FCPA. The FCPA forbidden:
C. Other Anti-Corruption Laws. Other countries where Diavaz has offices or operations prohibit all types of corrupt activities. Discuss with the Legal Manager about the applicable anti-corruption laws of the country you are currently located. Also, if you are considering inviting a Representative to do business with us outside of Mexico, consult it directly with the Legal Manager.
II. Policy Implementation.
To determine if the Policy applies to a specific situation, it is important to understand the following aspects of the Laws:
A. Offering, promising or giving (or receiving) anything of value. –
B. Officer or a third party
C. Knowledge of Improper Behavior
D. Corrupt Purposes
III. Facilitation Payments
A. The FCPA contains a restricted exception for “facilitating payments”; this is also known as “facilitation” or “grease payment”. According to this exception, the law permits to make payments to hasten the routine government actions under certain and limited circumstances, such as obtaining permits, processing government documents such as visas, or providing telephone services, if the party making the payment is legally entitled to such government action. If the government action requires the exercise of certain criteria or discretion, then the government action is not a “routine” under the FCPA. For example, a payment offered to an Official to obtain a favorable regulatory decision, where Diavaz does not legally have the right or where the Official must measure the concurrent public policy considerations, could not be considered as a facilitation payment.
B. Facilitation payments are not allowed under the Mexican Anti-Corruption Laws. Other laws may also impose restrictions on facilitation payments.
C. Regardless of the facilitation payments’ exception under the FCPA, Diavaz prohibits any facilitation payment except those that involve a credible and imminent threat to the health, safety or welfare of any person (for example, in cases where a local police officer threatens to attack a Diavaz employee if no payment is received). In that situation, the Legal Manager must preapprove the payment. If preapproval is not possible, the director, employee or Representative involved must report the payment to the Legal Manager as soon as possible. If possible, any director, employee or Representative who has any further questions concerning whether a particular situation has exceptional circumstances should discuss with the Legal Manager.
IV. Promotional Expenses
A. Although Mexican anti-corruption laws do not specifically regulate or provide for specific exceptions for promotional expenses, any of these expenses must not violate, or seem to violate, the restrictions described in Section IA.
B. The FCPA provides an affirmative defense that could cause the authorization of prohibited payments. For example, payments for reasonable and bona fide expenses incurred by or for the benefit of an Officer that are directly related to the promotion, demonstration, or explanation of a company’s products or services or the performance of a contract with a foreign government may qualify for this affirmative defense. These expenses could be for meals, accommodations, trips, entertainment, courtesy gifts, or any similar hospitality (collectively referred to as “promotional expenses”).
C. However, under the FCPA, promotional expenses that seek to influence the actions of an Officer to obtain or retain business or to induce wrongful acts are prohibited. An analysis should be made of whether a promotional expense is allowed, based on the splendour or extravagance of the expense, the influence of the beneficiary (or third party) on Diavaz’s operations, and the connection between Diavaz’s presentation and the promotional expense.
D. Other anti-corruption laws may limit the permissibility of promotional expenses for the welfare of the Officer or third party.
E. Before July of 2017, the Mexican law required all officers to report the acceptance of any gift or anything of value, given by a person or company, that exceeded the amount of $680.00, within a 12-month period. However, under the current Mexican law, as a consequence of the National Anti-Corruption System, there are no longer maximum amounts. This means that no gift or thing of value can be given to a Mexican official.
F. Thereby, any promotional expenses to benefit an Officer or a third party should be made only after the proper analysis of the circumstances. Diavaz allows making promotional expenses for the Officer or third party without prior approval of the Legal Manager, as long as:
Any promotional expenses that do not meet all of these requirements must be approved in advance and in writing by the Legal Manager.
V. Charitable Donations
A. Charitable donations raised by or on behalf of Diavaz may violate the FCPA or other laws if they reflect the elements laid down in Section II of this Policy. Directors, employees or Representatives should be especially careful if an Officer, or a Diavaz’s partner or dealer, directs or requests a charitable gift, or if such person or a member of his or her family is associated with the charitable organization in question. It is important that directors, employees or Representatives become familiar with the background, affiliations and reputation of any charitable organization.
B. Directors, employees and Representatives are unable to make or approve charitable donations by or on behalf of Diavaz without the prior written approval of the Legal Manager.
VI. Political Contributions
A. Political contributions present a risk of anti-corruption liability as the Laws apply to payments made to political parties, political party officials and political candidates. Likewise, political and electoral laws in Mexico prohibit Diavaz from making political contributions in Mexico, and political contributions made by Diavaz outside of Mexico may be illegal under local electoral laws.
B. Diavaz does not make any political contribution and no one can make a contribution on Diavaz’s behalf.
VII. Proper Accountancy and Retention of Records
To ensure compliance with Mexican anti-corruption laws, the FCPA, and other Laws, Diavaz must retain complete accounting records that accurately reflect its operations. All directors, employees and Representatives must ensure that the records of their activities at Diavaz are complete and accurate and are in compliance with all Diavaz’s policies and procedures.
VIII. Transactions with Representatives and Business Partners
Engaging with Representatives and the creation of business partnerships raises a special concern of compliance with this Policy. Diavaz has less control over the actions of third parties than its own staff, whom can be easily disciplined and trained. Therefore, Diavaz must exercise auditing processes to ensure that it has formed business relationships with reputable and qualified Representatives and business partners.
A. Audit requirements. Directors and employees must conduct an audit process of the Representatives and potential business partners prior to engaging any relationship, and must update such investigation periodically. Directors and employees must send the results of the investigation to the Legal Manager and obtain his or her approval before engaging with Representatives or forming a business partnership. Directors and employees must submit all documentation of the audit process to the Legal Manager for its preservation.
B. Contractual Provisions. Standard anti-corruption provisions, provided by the Legal Manager, must be included in all contracts with Representatives and in all business partnership agreements, unless otherwise approved by the Legal Manager. Diavaz’s directors or employees who are responsible for the implementation of the contract or agreements must send the contracts and agreements in their entirety and properly signed to the Legal Manager for its future preservation.
IX. Requesting or Accepting Gifts or Anything of Value from a Third Party
A. Directors, employees and Representatives shall neither request nor accept gifts or anything of value, any financial or other benefit from a customer, dealer, regulator, Officer or any other person with whom Diavaz does business, under any circumstances that may present a conflict of interest or appear to be a misconduct instigation.
B. In limited circumstances, directors, employees and Representatives may accept modest gifts or things of value as part of an exchange of mutual courtesies that (1) are customary in the country in question, (2) are appropriate to the time and place, (3) do not appear to improperly influence the recipient, (4) are legal under the applicable laws to Diavaz and the beneficiary, are permitted under the provisions of the giver society, and (6) are fully and precisely recorded in Diavaz’s records. Any director, employee or Representative who believes that the refusal of a particular gift or thing of value in circumstances that do not meet the above criteria and that would harm Diavaz’s business relationships with the other party should discuss with the Legal Manager before rejecting or accepting the gift or thing of value.
C. For example: Directors, employees and Representatives may accept invitations to annual conferences sponsored by dealers, customers or other parties, including reasonable hotel accommodations, trips and meals provided in relation with such conferences, on the understanding that these things of value meet the established criteria in Section IX. B regarding gifts, and on the understanding that the Legal Manager is notified prior to the directors, employees or Representatives’ acceptance of such invitations. Directors, employees or Representatives must not request or accept gifts or accommodations that are, or could be perceived to be, leading to illegal and inappropriate behavior, which contravene Diavaz’s interests. Any gift or accommodation, whose value or circumstance may raise expectations that the recipient director, employee or Representative will take any favorable action for the giver should be rejected and reported to the Legal Manager.
X. Training: Compliance Certification: Audits: Investigations.
A. Training. Diavaz will periodically provide anti-corruption training to its directors, employees and Representatives and will maintain records, including attendance lists. Training sessions may include virtual or onsite presentations on Mexican anti-corruption laws, the FCPA, and any other applicable laws, as well as this Policy.
B. Compliance Certification. Directors, employees and relevant Representatives must perform annual compliance certifications in anti-corruption matter or at such frequency that Diavaz may establish.
C. Audits. Diavaz will periodically conduct a compliance audit to assess Diavaz’s operations and procedures for possible violations of this Policy. The results of these audits will be used to strengthen Diavaz’s compliance programs.
D. Investigations. Directors, employees and Representatives must cooperate with any internal investigation conducted by Diavaz to comply with this Policy and the Laws.
XI. Reports: Questions
Any person who believes that Diavaz, or any person or third party acting on its behalf, is about to engage in activities, or has engaged in activities that may violate any Law or this Policy, should immediately report the pertinent information to the appropriate supervisory staff or the Legal Manager.
Contact the Legal Manager if you have any questions about this Policy.
Diavaz will not impose penalties, or permit retaliation against anyone who promptly reports information of violations and has not engaged in any offending activities.