general condition of sale
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GENERAL TERMS of the Union des Industries des Technologies de Surfaces A MEMBER OF FEDERATION DES INDUSTRIES MECANIQUES These general terms, hereinafter referred to as CG contain the customs of the area of material surface processing and coating. As a result, they have been filed with the Customs Office of the Business Court of Paris. They apply to all contractual relationships between the Manufacturer, hereinafter referred to as « F» and the customer company, the Instructing Party, hereinafter referred to as « DO», regarding any contract, any order, and the orders placed in the framework of an « open order ». They are written in compliance with legal and regulatory provisions including those of the Business Code. In accordance with article L441-6 of the business code, they are the single basis of the business negotiation. Any departure from these general terms shall be subject to the formal and written acceptance of the F. They prevail over any clause to the contrary expressed in any way by the DO and that have not been formally agreed to by the F. Written in the meaning of these general terms, shall be understood as any document prepared on paper or sent by fax or subject to the prior agreement of both of the parties, by electronic means. Contracts and orders placed between the F and the DO consist in custom work services (or processing) made and/or processed on the DO’s request and as a result, whatever their form, meet by nature the legal qualification of job contract. 1. – CONTENTS AND EXECUTION OF THE CONTRACT 1.1 – Contents of the contract The following are part of the contract and shall solely have the status of contractual documents : - these general terms, - the specific terms accepted by the two parties, including the specifications, provided it has been formally accepted - the order accepted by any means, including by means of confirmation of receipt or order confirmation, - the documents of the F complementing these general terms, - studies, estimates and technical documents provided before the execution of the main contract and accepted by the parties. - the delivery form - the invoice. 1.2 – Specifications, call for bids and bid Any call for bids, any order, should include technical specifications including necessary specifications and particularly the nature of the material used and the treatments that may have already been applied to the latter. The offer is considered as firm only when it includes a validity period. In the same way, any change in the specifications or model parts submitted as test as needed, may result in the revision of the bid accordingly. 1.3 - Order The contract is completed only when the order is formally accepted by the F. The acceptance of the order is done by all written means. Any order formally accepted by the F, whether open or closed, shall be deemed to imply the DO’s acceptance of the Supplier’s offer. 1.3.1- Closed order A closed order indicates in a firm manner the amounts, prices, delivery and logistics terms. 1.3.2 – Open order Without prejudice to the terms specified by article 1174 of the civil code, an open order should meet the terms mentioned below. - It is limited in time by the agreed delivery time. - It sets the features and the price of the products- At the time of the execution of an open order, maximum, minimum amounts and delivery times are specified. - The scheduling of the delivery orders defines the specific amounts and delivery times that are within the range of the open order. If the adjustments made by the DO to the forecast amount estimations of the schedule of the overall open order or of the delivery orders differ by more than 15 % from the amount of the said estimations, the F assesses the consequences of such variations In the event of any upwards or downwards variation the parties shall confer to find a solution to the consequences of the difference, likely to affect the balance of the contract to the detriment of the F. In the event of any upwards variation the terms, including the delivery times, shall be revised and the F shall make its best efforts to meet the request of the DO in the amounts and delivery terms compatible with his capacities (production, transport, sub-contracting, personnel, financial, etc…) 1.3.3 Order change and cancellation Any change to the contract requested by the DO is subject to the written and prior acceptance of the F. The order expresses the consent of the DO in an irrevocable manner ; therefore it cannot cancel it, unless otherwise previously agreed to in writing by the F. In that event, the DO shall compensate the F for any costs incurred (including specific equipment, study costs, labour and procurement expenses, tooling) and for any direct and indirect consequences arising therefrom. In addition the instalment already paid shall remain gained by the F. 2- PRICE 2.1 Failing an agreement by the two parties on a price, before the performance of the work, the price shall be charged by the F based on its proposal. Failing a quantified proposal, the F shall assess the price of the processing based on its own data and criteria, and the DO shall pay the price on that basis. The prices are given before taxes and « ex-works ». The prix corresponds exclusively to the products and processing specified in the Adresse postale : 92038 PARIS LA DEFENSE CEDEX offer. Payments are made in euros unless otherwise specifically agreed in the contract. A handling price, in the form of a minimum billing amount, will be charged by the F. 2.2 - The prices apply only to the processing operations, excluding any related costs such as : carriage, delivery costs, packaging, special tests, certificates of compliance, specific insurance, taxes, etc... 2.3 If there is a contractual price revision formula, an additional invoice to the one prepared at the time of the delivery shall be prepared based on the index publishing date. 2.4 In the event of repetitive orders any variation in the nature, in the quality or in the presentation of the base material or parts shall result in a price renegotiation. 3 – DELIVERY TIME 3.1 Delivery times accrue as from the latest of the following dates : - final DO order acceptance date, - date of arrival at the sub-contractors of the parts to be processed as well as of all technical documents or material items needed for the completion of the processing, - date of acceptance of the prototype parts, - date of settlement of the instalment possibly agreed upon. Unless otherwise agreed the delivery time or performance time is deemed given for informational purposes. 3.2 Contractual delivery times are extended for any reason that made it impossible for the F or the DO to perform its duties : force majeure event or case of similar events such as bad weather, procurement difficulties, accidental production stoppage, etc. The failing party should inform the other one of that impossibility upon occurrence and both parties should then confer immediately to agree on provisions to be made. 3.3 When the parts are not collected by the DO within a period of one month after the notification of the provision, the F shall charge warehousing costs and they shall be kept at the risk of the DO. Failing collection within two months as from the agreed time, the F may alienate the parts or destroy them, subject to notifying the DO. 3.4 Any penalty clause requires the consent of the F. Delivery delay or processing performance delay penalties may not be applied by the DO unless they have received the F’s specific and written approval. 4 - TRANSPORT 4.1 As a rule the terms of the F shall apply to parts deposited at, and collected from, its shops or workshops by the DO. The goods travel at the costs and risks of the DO whatever the origin of the packaging or the transport method. This provision applies to the various transports, i.e. to incoming or outgoing parts, whatever the place of shipment or destination. 4.2 In the event of the sending of the parts by the DO to the F, such shipping should be done carriage free, unless otherwise agreed. The weight or amount of the parts mentioned in the shipping lists are deemed valid only after receipt by the F. 4.3 Packaging : unless otherwise agreed, the DO shall deliver its parts property packaged to prevent any deterioration during transport. Such packaging shall be reusable for the return trip. In the event of packaging deteriorated or insufficient, the F may replace and charge them, subject to first advising the DO. 4.4 Upon the return of the processed parts, it is the DO’s responsibility to carry out, on receipt, any weight and amount test and possibly to express any reserves to the carrier, without this justifying any delay in the settlement of the invoices of the F. 4.5 If the F is responsible for carrying out or having carried out the shipping, it then acts only as agent of the DO, including in terms of payment. It is then justified in charging all its expenses and its own costs. 4.6 - When the DO calls on the services of the carrier or forwarding agent or had designated it, it shall be responsible for the solvency of that carrier or forwarding agent and hold the F harmless against the consequences of its failure. 4.7 - In the event the DO has called on a forwarding agent or carrier for the collection of goods intended for a third party : That third party shall have the status of addressee in the meaning of article L 132-8 of the Business Code The DO shall have the capacity of sender in the meaning of that article and agrees to sign the bill of lading. 5 – TERMS OF PERFORMANCE, RECEIVING AND GUARANTEE 5.1 Terms of performance 5.1.1 – The F agrees to complete its processing in accordance with the contract and in compliance with professional rules, according to the terms of work and guarantee specified in 5.4 below. 5.1.2 – In order to complete the operations and in agreement with the DO, the F reserves the right to carry out the destruction of the parts for setting or testing purposes during or after the manufacturing. 5.1.3 – While the parts are held by the F including during the performance of the work the responsibility of the F is governed by articles 1789 et seq. of the Civil Code. Unless otherwise agreed the responsibility of the F is limited to the loss of its work on parts lost or deteriorated unless serious breach of rules of prudence, competence and diligence normally required for such work is proven. 5.1.4 – In pursuance of article 1790 of the Civil Code, should the material entrusted with the F have latent defects and disappeared or was deteriorated as a result of its poor quality, the value of the treatment or processing or of the coating completed by the F shall be borne by the DO. More generally should the rough parts provided by the DO or defined by it show configuration or material defects, the F shall not be held responsible for any deteriorations sustained by those parts and may charge the DO all resulting costs. 5.2 Acceptance terms 5.2.1 – If an acceptance has been agreed upon, the terms thereof should be specified by common agreement upon the order. Failing, they shall be completed according to the following provisions. 5.2.1.1 – At the workshops of the F The acceptance shall take place at the workshops of the + F on the date agreed by the respective parties. If the DO foes not attend or is not represented at the acceptance test, the acceptance is nonetheless deemed to have been carried out