General terms and conditions
I – GENERAL PROVISIONS
1. By placing an order, the customer shall be deemed to have agreed to these general terms and conditions, except in the event that explicit provisions to the contrary are included in the text of our acknowledgment of receipt of the order.
2. Any derogation from these general terms and conditions shall be the subject of a prior written agreement made by us. Unless otherwise agreed in writing by us, these general terms and conditions shall prevail over all other general terms and conditions, terms and conditions of purchase, or terms and conditions for the performance of work of the
customer, and more generally, over all terms and conditions or provisions that conflict with these general terms and conditions and that are mentioned by the customer in any document in any form whatsoever.
Any derogation from, or change to, these general terms and conditions shall be valid only for the order in question, and the customer shall not have the right to assert such derogation or change against us with regard to any other orders.
II – FORMATION OF THE CONTRACT
1. Our offers and estimates are drawn up on the basis of the data, technical specifications, and any other information that the customer is responsible for providing to us, and take into account the recommendations, instructions and limitations contained in our catalogues and in our installation, commissioning and maintenance manuals, and the buyer hereby acknowledges having taken cognizance thereof. In the event that the documents provided by the customer contain an error, omission or inaccuracy that may have an effect on our offers, we hereby reserve the right to adjust our terms and conditions, specifically with regard to delivery dates and price.
The studies and estimates that we submit to you shall bind us only with regard to the project in question and only for the time period that the offer remains open, as stated in our offer.
2. The customer shall be bound to us as from the time that it sends us an order or intention to order, either directly, or through one of our agents.
Orders bind us only after they have been confirmed in writing by us. The customer shall not have the right to cancel any order, in whole or in part, before we have reached agreement with the customer regarding the amount to be paid as compensation to us for all consequences, direct and indirect, of such cancellation, such as expenses incurred, and costs of studies, provisioning and tools.
3. All requests for a change in an order shall be set out in a rider signed by both parties before such changes are executed.
4. We hereby reserve the right to condition our acceptance of an order on the provision by the customer of accounting and financial documents and, if applicable, payment guarantees.
5. In addition, all orders shall be conditioned, if applicable, on obtaining export licenses.
III – PRICES
All orders shall be invoiced in accordance with the prices and terms and conditions set out in our acknowledgment of receipt of the order. All changes to the terms and conditions appearing in our acknowledgment of receipt of the order shall be set out in a rider. In the event of the occurrence of external events beyond our control and that are of a type to materially affect the financial terms and conditions of the order (such as significant increases in the price of raw materials, statutory changes, variations in foreign
exchange rates, etc.), we hereby reserve the right to revise our prices in order to re-establish the equilibrium of the contract.
IV – DELIVERIES – RETURNS – ACCEPTANCE OF WORK
1. Our materials are shipped ex-works. Consequently, regardless of the origin and the destination of the materials and the terms and conditions of the order, delivery shall be deemed to have been made at our factories or shops, where the transfer of the risk shall take place, and which shall pass to the customer:
- as from the time they are handed over to the carrier, if the materials are to be shipped without prior notice;
- as from the time that we give notice that the materials are at the customer's disposal, in the event that shipment is not provided or possible, and if there is no provision for receipt at the factory;
- eight days after we have given notice that the materials are at the customer's disposal for pick-up at the factory, if such procedure is specified in the order, and the customer has not responded to such notice;
- in the event of acceptance of work, as from the time of acceptance by the accepting agent.
2. In the event that we agree to postpone the date of delivery or pick-up for reasons related to the customer's situation or at the customer's request, the customer shall bear all risks related to such postponement, and shall also bear all additional expenses incurred as a result thereof (storage, handling costs). In addition, the customer shall pay for materials on the due dates originally agreed.
Nevertheless, we hereby reserve the right to refuse to postpone the delivery, and either to seek specific performance or to terminate the order, automatically and without the need for any formal notice to perform, without prejudice to our right to claim damages.
3. No claims concerning the composition of materials delivered, their quantities and weight, or their lack of conformity with the shipping invoice, shall be accepted if they are not received by us within eight days following the arrival of the materials at the premises of the customer or its agent.
4. All returns shall require our prior written approval. Furthermore, materials shall be returned carriage prepaid, be in new condition, and require no reconditioning. We shall provide a credit to the customer on the basis of the price of the materials initially invoiced, from which will be deducted a flat amount of twenty percent (20%) for dministrative
handling of the return, re-packaging, and return to stock.
5. Work on-site shall be accepted at an inspection at which we and the customer are present, and that is to be carried out within eight days following the completion of the work, and a memorandum of acceptance shall be drawn up. If the foregoing acceptance procedure does not take place within the time period provided hereinabove, the
work shall be deemed to have been accepted without reservation. At such time, the risk shall be transferred to the customer.
V – RESERVATION OF TITLE
1. The title to the materials and/or work shall not be transferred to the customer until such time as payment in full of the price, both principal and incidental amounts, is actually made into our account. In this respect, merely providing a bill of exchange or other document creating an obligation to pay shall not constitute payment.
2. During the period that we reserve title, all risks concerning the materials and/or the work shall be transferred to the customer, who hereby agrees thereto, as from the time that the materials are put at the customer's disposal and/or as from the acceptance of the work, in accordance with the provisions of Article IV hereinabove. The customer shall insure the materials and/or work against all risks of damage and liability that may be caused or suffered by them, regardless of the cause thereof.
3. The customer shall immediately notify us of any threat, action, seizure, requisition, confiscation, or of any other measure that may affect our property rights in the materials.
4. The customer shall not resell the materials and/or work before having paid the price, both principal and incidental amounts, in full.
5. In the event of a failure to make payment, in part or in full, on the due date, we shall have the right to claim the materials and/or work, at the customer's expense
and risk, and such action shall not constitute a waiver of any of our other rights. If the invoices that have not been paid concern several batches of materials and/or items of work, we shall have the right to make a claim for the entire amount due for such materials and/or work, and/or we shall have the right at any time to declare the order terminated, effective immediately, without the need for any legal formalities, merely by giving notice of such intention in a registered letter with acknowledgement of receipt.
VI – TIME FOR PERFORMANCE – PENALTIES
1. The times for performance shall be those stated in the acknowledgment of the order that we send to the customer. The customer shall have no right to claim penalties or damages for any delay whatsoever in delivery unless such right is expressly provided in the text of our offers or of our final agreement, and in such case, only after the customer has given formal notice to perform.
In any event, delivery can take place within the time limits specified only if the buyer has complied with all of its obligations to us, regardless of the cause.
2. We shall automatically be discharged of all obligations concerning delivery dates, and consequently shall have no liability for penalties or damages for delayed delivery:
a) in the event that the delay is due to an event of force majeure or to events such as, in particular: lock-outs, strikes, epidemics, war, requisition, insufficiency or unavailability of raw materials, fuel, energy or labour, fire, flood, freezing, prohibition, or transport delays, any other cause leading to a total or partial work stoppage for us or our suppliers, statutory changes in the working week, tool shortages, and finally, all other events beyond our control;
b) in the event that the customer has not complied with payment agreements entered into;
c) in the event that the information and documents to be provided by the customer do not reach us in a timely manner.
3. Delays in delivery shall in no event give the customer the right to seek the termination of the contract.
4. In the event of a change in an order in accordance with Article II-3 hereinabove, new time limits for performance shall be set out in the rider modifying the terms of the order and shall replace the original time limits for performance.
VII – PAYMENT TERMS AND CONDITIONS
1. Except in the event of provisions to the contrary agreed by us, payments shall be made within 30 days date of invoice, with the exception of down payments, which are always payable upon receipt of the invoice.
2. In the event of a deterioration in the customer's financial situation, the delivery of materials and/or the performance of work shall be postponed until the customer pays the balance remaining due on the order and/or until the customer provides financial guarantees that we deem acceptable.
3. No amendment to these general payment terms and conditions shall be asserted against us unless we have agreed to such amendment in writing.
4. Invoices are payable at our registered office, and are quoted in net prices, without any discount.
In the event of payment by a bill of exchange, such payment shall reach us no later than three weeks prior to the due date provided in the acceptance of the order. All expenses related thereto shall be borne by the customer.
Our bills of exchange, and in general, the various payment methods accepted by us, shall not constitute a novation or derogation from the jurisdiction clause.
5. The parties hereby expressly agree that unless an extension has been requested in a timely manner and agreed by us, including in the event of a dispute, the failure to make a payment on the due date shall, automatically and without the need for a formal notice to pay: a) render all amounts outstanding due immediately, regardless of the payment method provided (by an accepted bill of exchange or otherwise); b) in accordance with Act no.2008-776 of 4 August 2008, result in the application of a late payment penalty in an amount equal to the most recent refinancing rate of the European Central Bank, plus 10 points;
c) in accordance with Law Nr. 2012-387 of 22 March 2012, invoicing of a lump sum amount for recovery costs of €40. Moreover, in case of legal proceedings for the recovery of our claim, the customer shall bear all costs incurred. In addition, we reserve the right to claim damages from the customer for the loss suffered as a result of the delays in payment and to immediately halt all production and deliveries, and the customer shall have no right to make any claim for compensation on such grounds.
6. In the event that the customer sells, transfers, pledges, or contributes to a company its business assets or equipment, all amounts due (including, in particular, all
expenses incurred in manufacturing) shall become payable immediately, regardless of any terms and conditions previously agreed.
7. The making of a claim regarding the quality of materials and/or of the work shall not suspend the customer's obligation to make payment therefore in full.
8. The customer shall not offset any receivables without our prior written agreement.
VIII – SHIPMENT – PACKING – LIABILITY OF CARRIERS – ASSEMBLY
1. In the event that we carry out, either directly or through one of our subcontractors, operations involving loading, wedging of shipments, shipping, handing over, insurance, exporting, stevedoring, and preparing materials for operation, we shall be deemed to act as the customer's agent.
In this respect, it is hereby agreed and accepted that the customer or its other agents shall have no right to hold us liable, for example, for insufficient insurance, or for expenses due to delays upon arrival or a lack of unloading means upon arrival.
2. In general, materials are shipped at the recipient's risk, and it shall be the recipient's responsibility to obtain all necessary insurance concerning such shipments, and to check the said goods upon arrival, and if necessary, to make a claim against the carrier.
3. In the event that we are present during assembly of our materials, or if we supervise such operations, but the assembly operations are carried out by the customer or by third parties engaged by the customer, we hereby decline all liability for all risks of any type that may result from such assembly operations, and the customer shall be responsible therefore. Consequently, the customer shall waive, and shall cause its insurers to waive, the right to make any claims on such basis against us and/or our insurers.
IX – WARRANTY
1. Our installations, equipment, materials and/or studies are guaranteed against all defects in manufacturing or performance during the warranty period, which, unless otherwise provided, shall be:
- for installations, equipment and materials: 12 months as from the date that they are first put into service, with a maximum period of 18 months after delivery.
- for studies: 12 months as from the date they are completed.
To take advantage of this warranty, the customer shall notify us within eight days as from the discovery of any defects in the materials and/or work, and shall provide all required proof and information in support of its claim.
2. The warranty shall be limited to the reconditioning or, if applicable, to the replacement of those of our parts that we recognize to be defective and/or to the re-doing of that portion of our work that we recognize to be defective.
3. The repair, replacement or modification of parts and/or the re-doing of work during the warranty period shall not be deemed to extend the warranty period, and shall in no event give the customer the right to claim compensation for miscellaneous expenses (labor, etc.), delays in delivery, accidents, or any loss whatsoever.
4. With regard to parts and/or work that we recognize to be defective (with the exception of any defects that are the result of a poor design that the buyer required us to use, or that are the result of inaccuracies, omissions or errors in the customer's project specifications or technical specifications), and that can be repaired or re-done, in the event that the customer proceeds with the repairs and/or the re-doing of the work, such repairs or re-doing of the work shall not be carried out at our expense without prior agreement between the customer and us regarding the amount to be expended.
5. All returns of materials pursuant to this warranty shall be the subject of a prior agreement. Returns shall be made to the place indicated by us, or if we do not indicate such a place, to our shipping address. The failure to comply with this provision shall give us the right to invoice the customer for all additional expenses caused thereby. We do not provide any performance warranty and/or warranty regarding processes to the customer unless such warranty is contained in the specific provisions that appear in our acknowledgment of receipt of the order.
6. The following are specifically excluded from the application of our warranty: damage, and the consequences thereof, due to ordinary wear and tear or an external cause (error in assembly, inadequate maintenance, use of our materials in a manner that does not conform to the technical specifications), or due to any modifications made to the materials that were not expressly provided or specified.
X – STUDIES AND PLANS – INTELLECTUAL PROPERTY
We do not grant the customer any property rights or license of use to patents, know-how, etc.
All transfers or licenses of intellectual property rights or know-how shall require the conclusion of a specific transfer or license agreement with us.
With regard to documents concerning studies and plans, whether or not protected by patents, that are provided by us, either gratuitously or for consideration, in connection with projects or orders, only a right of use is granted to the customer.
Furthermore, such documents and plans shall be used by the customer only for those purposes for which they were provided.
Unless otherwise agreed by us in writing, they shall not be reproduced, adapted, communicated to third parties, or executed, including partially. All documents provided by us that do not result in an order shall be returned to us at our request.
In any event, we shall retain the intellectual property rights in our projects, and the customer shall have no right either to communicate them to third parties or to execute
them without our prior written authorization.
The customer hereby represents and warrants that the information contained in its technical specifications and project specifications, as well as their conditions of application, do not infringe the intellectual property rights or know-how of third parties. The customer hereby agrees to hold us harmless from all consequences in the event that a third party brings legal action against us on such grounds.
XI – LIMITATION OF LIABILITY
Our liability shall be limited solely to direct tangible losses caused to the customer that are the result of acts of negligence for which we are responsible and that are duly proved. We shall under no circumstances have any obligation to provide compensation for intangible losses (whether direct or indirect) or indirect losses, such as, in particular, loss of production, loss of opportunity, commercial losses, production cost overruns, or loss of profits. In any event, our liability, with the exception of bodily injury, fraud and gross negligence, shall not exceed twenty percent (20%) of the amount of the order. The customer and its insurers hereby waive the right to bring any claim against us and our
insurers exceeding the limits and exclusions hereinabove, and the customer shall guarantee compliance with this obligation by its insurers.
XII – CONFIDENTIALITY
The customer hereby undertakes to keep confidential all documents and/or information provided by us, or of which it learns in the course of the preparation and performance of the order. Documents and information in the public domain, or of which the customer lawfully had knowledge before the conclusion of the order, as well as those for which we have given the customer prior, written disclosure authorization, shall not be considered to be confidential.
XIII – APPLICABLE LAW – DISPUTES
The interpretation and performance of these general terms and conditions, as well as of orders for materials and/or work, shall be governed exclusively by Chinese law.
Any dispute that cannot be settled amicably shall be brought before the courts with territorial jurisdiction over our registered office, including in the event of the joinder
of a guarantor or multiple defendants.
XIV – MISCELLANEOUS
1. Should one or more provisions of these general terms and conditions turn out to be invalid, illegal or inapplicable for any reason whatsoever, they shall be deemed not to have been written without however affecting the validity of the other provisions.
2. Tolerance by us with respect to any breach or failure to perform by the customer with respect to these general terms and conditions shall not be construed to be a waiver by us for the later application of said terms and conditions.