GENERAL TERMS AND CONDITIONS OF SALE
THESE GENERAL TERMS AND CONDITIONS OF SALE (“GTCS”) SHALL BE APPLICABLE TO THE OFFERING, MANUFACTURE, SALE AND DELIVERY OF PRODUCTS AND ACCESSORIES (HEREIN BOTH SEPARATELY AND JOINTLY REFERRED TO AS “THE PRODUCTS”) BY FAMOCO SAS, OR ANY OF ITS AFFILIATES (“COMPANY”). THE SIMPLE ISSUANCE OF A PURCHASE ORDER OR ACCEPTANCE OF OUR COMPANY’S QUOTATION BY A CUSTOMER SHALL BE CONSTRUED AS AN ACCEPTANCE OF THE PRESENT GTCS AND AS A WAIVER BY THE CUSTOMER TO ENFORCE ITS OWN GENERAL TERMS AND CONDITIONS OF PURCHASE. THE GTCS MAY BE AMENDED AND/OR COMPLETED SOLELY BY WRITTEN SPECIFIC TERMS AND CONDITIONS PREVIOUSLY AGREED BY THE PARTIES (“STCS”).
FAILURE BY OUR COMPANY TO ENFORCE AT ANY TIME ANY PROVISION OF THESE GTCS AND/OR THE STCS SHALL NOT BE CONSTRUED AS A WAIVER OF OUR COMPANY’S RIGHT TO ACT OR TO ENFORCE ANY SUCH TERM OR CONDITION AND OUR COMPANY’S RIGHTS SHALL NOT BE AFFECTED BY ANY DELAY, FAILURE OR OMISSION TO ENFORCE ANY SUCH PROVISION.
THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD THESE GTCS PRIOR TO ISSUING A PURCHASE ORDER.
1. Finalization of contract
The Products of our company shall be sold on a firm basis. Except as otherwise set forth herein, they are not replaced or reimbursed. Purchase orders issued by the customer are subject to the prior written approval of our company. In no event shall our company’s commencement of performance of the customer’s order be construed as tacit acceptance of the terms of such order.
All information, specifications and all prices appearing in our company’s catalogs and/or documentation, including any quotation, shall be provided for information purpose only, and shall be binding on our company solely in accordance with the customer’s order duly accepted by our company.
When permits, authorizations or formalities, such as inter alia relating to importation or exchange control, are required for importing the Products in the country of delivery or for payment of the Products sold, the customer shall be solely responsible for obtaining or performing them in a timely manner, and the customer shall so inform our company.
The delivery dates provided by our company shall always be provided for information purposes only unless otherwise agreed in the STCS. Delays in such delivery dates shall not entitle to any cancellation or termination of the corresponding order(s), nor any compensation or penalties. Such delivery dates and time periods shall be automatically extended in the case of delays due to a force majeure event in accordance with the terms of Article 6 hereunder, as well as in the case of late payment as provided in Article 3.2 hereunder. Unless otherwise provided for in the order’s written acceptance, deliveries shall be made in accordance with the customary tolerances accepted in the industrial area of our company. Unless otherwise provided, our company reserves the right to require the customer to accept delivery of all the Products of an order in a single delivery.
Unless otherwise provided for in the order’s written acceptance, the Products shall be delivered in a packaging complying with usual customs and standards. Our company shall not be liable for any damage caused by inadequate packaging if such packaging has been requested or accepted by the customer or if the customer has not provided specific transportation instructions to our company in writing.
By express agreement, the Products shall be transported at the customer’s risks, even in the case where shipping is undertaken at our company’s expenses. The customer shall reserve all rights of recourse against the carrier in the event of missing goods, damage, delays, etc., and shall take all measures and perform all formalities that may be necessary in a timely manner.
Unless otherwise provided for in the order’s written acceptance or in the STCS and notwithstanding the retention of title clause in Article 4 hereunder, the costs and risks related to the Products (including the risk of loss or destruction) shall be transferred to the customer in accordance with the applicable Incoterm. The customer undertakes to insure the Products, upon delivery, against all risks to which the Products may be subject or which the Products may cause.
The customer shall immediately advise our company, by registered letter with return receipt, of any material or legal incidents (such as inter alia any seizure by a third party) which may affect the Products sold under retention of title.
3. Price – Terms of payment
The price of the Products shall be established based on our company’s written quotations. Orders shall be based on the quotations applicable on the order date. The price established in the written acceptance of the purchase order may be
modified by our company until the date of delivery or performance if one or more factors having been used to establish the price undergo a change, even if such change was foreseeable at the time of the quotation. These factors include but are not limited to: raw materials and components, wages, salaries, social security contributions, governmental charges, freight costs and insurance premiums. Seller shall notify Customer of such increase.
Unless otherwise provided for in the order’s written acceptance, all the prices of the Products shall be deemed “Free-on-Board Hong-Kong”, excluding duties and taxes.
Unless otherwise provided in the order’s written acceptance, the customer shall make payments ten (10) clear days of the invoice date, beneficiary value in our bank account, by wire transfer, to the bank and the place indicated by our company.
For certain export customers, payment shall be by an irrevocable documentary credit duly confirmed by an approved bank of our company, irrespective of the method and the place of delivery.
The payment shall be net of all deductions, withholdings or other charges. Unless otherwise provided and previously accepted by our company and/or stated in the invoice, the prices of the Products shall not be subject to any discounts or rebates by our company. Payment shall not be denied, delayed or interrupted for any reason whatsoever.
Without prejudice to any remedies or recourses available to our company, all amounts unpaid on the due date shall result in the immediate cancellation of any payment term, with the entire amount becoming due immediately, and such amounts shall bear interest for each day of delay at the interest rate as set forth in Article L 441-6 of the French Code de Commerce, without prejudice to any damages that our company may claim. Such late payment interests shall be due automatically as of the first day following the date on which such amounts are due, without prior notice. The customer shall not claim any return under the warranty in order to suspend payment of the Products. In addition, in case of late payment, our company shall be entitled (i) to suspend the performance of all its obligations, (ii) to terminate, by operation of law, all pending orders with such customer within eight (8) days of receipt of a formal request for payment sent to the customer by registered letter with return receipt, and (iii) to retake possession of all Products and all documents related thereto on the customer’s premises, without notice. The customer shall be liable for the payment of all expenses and disbursements (including the transfer expenses) incurred by our company in retaking possession of the Products. Our company shall also be entitled to request immediate payment of all other invoices, which shall become automatically due as a result of such delay, with immediate effect, with no formality other than notice by registered letter with return receipt, and without prejudice to any damages our company may claim from the customer.
Under such circumstances, our company shall be entitled to require immediate payment in cash on the date of issuance of the orders or prior to delivery of all new deliveries.
4. Title retention clause
Our company shall retain the full and exclusive ownership of the Products until payment of all amounts due, in principal and interest. Until full payment, the customer must take all necessary measures to (i) ensure that the Products delivered are stored in proper conditions and are clearly identified as Products belonging to our company, such as to identify them and so that they cannot be confused with products from other suppliers, (ii) protect our company’s rights over such Products, and (iii) immediately inform our company of any third-party claim related to such Products. The Products shall not be transferred, resold, pledged, or, more generally, subject to rights granted to any third parties. In the event of total or partial late payment of any invoice, and without prejudice to any other rights and remedies, our company expressly reserves the right to immediately retake possession of the Products. The customer shall return the Products, at its own risk and expense, to our company upon first demand.
5. Compliance with regulations – Information
The customer, having accepted the Products’ technical specifications, acknowledges having full knowledge of the design and properties of such Products. The customer shall be solely responsible for compliance with the regulations in force related to the importing, marketing and use of the Products in their countries of delivery. The customer shall be solely responsible for providing appropriate information to its customers and end consumers as to the use of the Products and any consequences which may result therefrom.
6. Force Majeure
Our company shall not be liable for any breach of its obligations in the event of a force majeure event hindering, preventing or delaying performance of such obligations. Any natural disaster, storm, fire, flood, earthquake, accident, interruption of services, strike (including a strike affecting our company’s suppliers), lock-out, interruption and/or delay in loading or transportation, energy blackout, embargo, trade prohibition, shortage of raw materials, tooling accidents, sabotage, intervention of civil or military authorities, acts of war, declared or undeclared hostilities, terrorist act and riots, shall, inter alia, be considered force majeure events.
Our company shall promptly notify the customer in writing of any force majeure event affecting the performance of the order. In such case, our company’s obligations shall be suspended, performance time schedules shall be extended and the order shall remain in effect.
In the case of a force majeure event lasting more than three (3) months, any party may automatically terminate the affected order, with immediate effect, by registered letter with return receipt. The customer shall be required to take delivery and to pay all Products manufactured until the date of termination and to compensate our company for all other costs and expenses already incurred in accordance with Article 8 hereunder.
The provisions relating to the warranty hereunder shall be in lieu of all mandatory warranties offered to the customer, to the extent permitted by law.
Our company warrants, on the terms and conditions defined hereinafter, that the Products shall comply with the contractual specifications, within the customary tolerances accepted in the industrial field of our company.
The customer shall provide notice in writing to our company of all claims under the warranty for apparent defects, prior to any utilization/use/transformation of the Products and, in any event, within a maximum period of ten (10) business days following delivery. Failing that, the customer shall have automatically lost the benefit of the warranty.
Our company warrants the Products against all non-conformities and defects, excluding apparent defects, and subject to any other provision hereof, for a period of twelve (12) months as of their delivery to the customer. The customer shall provide notice in writing to our company of all claims under this warranty within five (5) days following the discovery of the non-conformity or defect. Failing that, the customer shall have automatically lost the benefit of the warranty. If our company confirms such non-conformity or such defect, our company shall then replace the Products, at its own expense.
Products shall be deemed defective in the event the defect is reproduced by our company during an examination of the products, it being understood that the non-conformity shall be determined by reference to the corresponding contractual specifications.
Shall notably be excluded from the benefit of the warranty the following defects and non-conformities:
- defects due to a failure to comply with our company’s specifications, instructions,
- defects due to normal wear and tear,
- defects due to transportation or means of transportation used,
- defects due to storage conditions,
- defects resulting from alteration of the Products or their use by the customer or by a third party without our company’s prior, written consent,
- defects which did not exist at the time the Product was delivered to the customer,
- defects of a Product which was not intended for sale or for any other form of distribution,
- defect attributed to the design of the final product incorporated into the Product or into which the Product was incorporated, or to the instructions of the final product’s manufacturer;
- non-conformity resulting from the application of mandatory legal or regulatory rules,
- defects reasonably unknown given the state of the scientific and technical art at the time of manufacturing.
Our company shall not be liable when the failure of one of its Products is caused by other components with whom the said Products are combined by the customer.
The foregoing warranty is exclusive and in lieu of all other warranties, representations, conditions or other terms, express, implied, statutory, contractually or otherwise, including, without limitation, any warranty of merchantability, suitability or fitness for any purpose.
The customer shall be liable vis-à-vis our company and shall compensate our company for all consequences resulting from all claims by third parties related to the Products when such Products were supplied in compliance with the Products’ technical specifications.
7.2 Limitation of liability:
The total cumulative liability of our company related to the Products for any calendar year shall be limited, whatever the cause(s) to a total maximum amount equal to fifty per cent (50%) of the total payments (VAT excluded) made by the customer during the six-month period preceding the date of the claim; if such claim or petition is related to specific references of Products, the reference period shall be six (6) months of purchases of the said specific references of Products.
In no event and under no circumstances shall our company be liable, for any losses, liabilities and other consequential, incidental, indirect and/or immaterial costs, damages and other financial losses, or losses of use or damage to reputation, and whether arising out of or in connection with breach of warranty, breach of contract, misrepresentation, negligence or otherwise.
8. Cancellation or termination of orders
The cancellation or termination of all or part of any order shall be subject to our company’s prior written consent. In the case of cancellation of all or part of any order, the costs and expenses already incurred by our company and its subcontractors, such as inventories of finished and semi-finished products already manufactured or which are currently being manufactured, inventories of components purchased, shall be fully paid by the customer.
9. Transfer of orders
All orders are accepted by our company in consideration of the customer. As a consequence thereof, no orders may be assigned or transferred, in whole or in part, by the customer, to whomsoever, in any manner whatsoever and on any basis whatsoever, without our company’s prior written consent. Our company shall be entitled to freely subcontract orders placed by the customer with any third party of its choice and shall be freely entitled to transfer the orders placed by the customer and the rights and obligations related thereto to any of its affiliated companies, subject to a reasonable prior written notice to the customer.
10. Intellectual and industrial property
The plans, designs, drawings, molds, photographs, production schematics, models, technical and commercial bills of material, recommendation documents, test results, catalogs, brochures, manuals, patents, models and designs, notes and, more generally, all documents and all written or oral information disclosed to the customer, are and shall remain the property of our company. As a consequence, the customer shall refrain from disclosing or duplicating them without our company’s prior written consent.
Any transfer of our company’s intellectual and/or industrial property rights or know-how to the customer, or any rights of the customer over designs and models incorporated into the Products developed by our company, shall not entitle the customer to use such rights to prevent or restrict our company’s right to manufacture products for other customers.
The customer represents and warrants the existence of its title and rights to use any drawing, model, mold, patent, specification or any other industrial or intellectual property right that it makes or has made available to our company, and undertakes to hold our company harmless from and against any and all damage, losses, costs, expenses, claims, demands and liabilities arising out of or in connection with the alleged or effective infringement of third party’s industrial or intellectual property rights which may result from our company’s implementation or use or detention of such drawings, models, molds, patents, specification or any other industrial and/or intellectual property.
In the event that any provisions of these GTCS and/or of the Agreement are declared to be unenforceable, the other provisions shall continue in full force and effect.
12. Governing law - Jurisdiction
The governing law shall be the laws of the French Republic. The United Nation Convention on Contracts for the International Sale of Goods, adopted in Vienna (Austria) on April 11, 1980, shall not be applicable.
Any dispute arising from the GTCS and/or STCS and/or the Agreement shall be subject to the exclusive jurisdiction of the Commercial Court having jurisdiction over our registered office, regardless of the place of delivery or even in case of interlocutory proceedings or warranty claim, or plurality of defendants.
Our company reserves the right to seek judicial relief to protect its property interests.
13. Application of the General Terms and Conditions of Sale and Supply
These GTCS shall be applicable as of September 1, 2013, to all orders received from customers, and shall replace the GTCS previously in force.