Conditions of sale
1. SCOPE OF APPLICABILITY
1.1 – These General Terms and Conditions of Sale (“GTCS”) apply to all sales of goods by GECoE, registered in the trade and Companies Register of Le Mans under the number 831 265 772, having its registered offices at ZI route de Mamers – 72400 Ferté-Bernard FRANCE (herein referred to as “Seller’), notwithstanding any conflicting, contrary or additional terms and conditions in any Purchase Order, other communication, or website from Buyer. Any proposal by Buyer of such contrary or additional terms shall not operate as a rejection of this GTCS. No such conflicting, contrary or additional terms and conditions shall be deemed accepted by Seller unless and until an authorized representative of Seller expressly confirms acceptance in writing signed by Seller.
1.2 – In the event of a conflict, the following order of precedence will apply: (i) terms agreed to in writing and executed by an authorized representative of Seller; (ii) Seller Document terms; (iii) these Terms.
1.3 – Seller reserves the right to change these GTCS at any time. Seller will provide thirty (30) calendar days’ notice of any changes by posting notice on Seller’s website.
2. OFFERS, PURCHASE ORDERS AND ORDER CONFIRMATIONS
2.1 – Price quotations made by Seller are open for acceptance within ten (10) calendar days from the date of issue, unless otherwise specifically stated therein, and are subject to the availability of the goods offered. The profit of the offer is personal to the Buyer and cannot be transferred in any manner whatsoever without the prior written consent of the Seller. The sales are not final and the contract (hereinafter the “Contract”) not formed until written acceptance of the Order by the Seller which shall, notably, ensure the availability of the ordered Products.
2.2 – All Purchase Orders issued by Buyer shall specify as a minimum the type and quantity of goods requested, applicable unit prices, delivery place and requested delivery dates. No Purchase Order shall be binding on Seller unless and until confirmed by Seller in writing.
2.3 – For any order held or delayed at the request of the Buyer, Seller may, at its sole option, (i) require payment to be based on any reasonable basis, including but not limited to the quoted price, and any additional expenses, or costs resulting from such a delay; (ii) store goods at the sole cost and risk of loss to the Buyer.
2.4 – If Seller agrees to Buyer’s request for any increase in quantity or for delivery sooner than quoted terms, Seller may charge, and Buyer agrees to pay, reasonable additional expenses or costs.
2.5 – Buyer’s submission of a Purchase Order in response to any price quotation shall be deemed acceptance of these terms and conditions.
3. PRICES AND TERMS OF PAYMENT
3.1 – All prices and their validity are quoted in the Offer. The prices include packaging and are exclusive of VAT unless otherwise mentioned in the Offer. Prices and payment to the Seller shall be in Euro, unless stated otherwise in the Offer. Payment terms are net 30 days date of invoice. In accordance with Article L 441-6 of the French Commercial Code, in the event of overdue payment, the Seller shall have the right as per the due date of payment to apply penalties for late delivery at an amount of fifteen percent (15%) of the overdue amounts, said amount shall not be inferior to 3 times the French legal interest rate in any case. In case of Late payment, in case of overdue payment, a lump sum for recovery costs, in the amount of 40 euros shall apply (Decree No. 2012-1115). In the event of cancellation, rescheduling, or termination of an order for any reason, the Buyer will remain liable for all amounts due, costs of material and expenses incurred by the Seller. The Buyer shall also reimburse the Seller for all work in progress and finished goods inventory of Products and materials. The Seller shall have the right to assign its right to receive money without the prior written consent of the Buyer. This shall be in addition to, and not in limitation of, any other rights or remedies to which Seller may be entitled at law or in equity.
3.2 – Buyer must submit such financial information from time to time as may be reasonably requested by Seller for the establishment or continuation of payment terms. Seller may in its sole discretion at any time change agreed payment terms without notice by requiring payment cash in advance or cash on delivery, bank guarantee, letter of credit or otherwise.
3.3 – In the case of late payment or failure to pay all or part of the previous Orders, the Seller has the right to refuse take any new Order or execute Orders in progress, depending on the case, for as long as the Buyer has not sorted out the situation and without the latter being able to claim any indemnity. In this case, the procedure indicated under article 3.1 shall be applied.
4. TERMS OF DELIVERY
4.1 – Unless expressly stated otherwise in our order confirmation, all deliveries of goods shall be EXW in accordance with Incoterms 2010. The risk of loss of or damage to goods shall pass to Buyer in accordance with the agreed delivery term.
4.2 – Even if the Seller has accepted binding times in writing, the Seller shall not be under any liability in respect of any commitment of time in the following circumstances:
- technical difficulties, failure from suppliers of the Seller, failure from carrier, force majeure
- lack of or incorrect information given by the Buyer
- time delayed at the request of the Buyer
- delay caused by customs formalities.
Transport and insurance of transport costs are additionally charged to the Buyer. The Buyer will notify the Seller of any visible damage, lack of conformity or incorrect amount of Products being delivered within three (3) working days after delivery thereof
4.3 – Seller reserves the right to make delivery in instalments.
4.4 – Reservation of ownership
- The transfer of ownership of the Products is suspended until full payment of their price, in principal and ancillary costs, by the Buyer even if payment time is granted. Any contrary clause, in particular inserted into the Buyer’s general conditions of purchase, is deemed unwritten.
- By express agreement, the Seller shall be able to take advantage of the rights that it holds pursuant to this reservation of ownership clause for any one of its claims, on all the Products in possession of the Buyer, it being presumed contractually that the latter are those for which payment has not been made and the Seller shall be able to take them back or claim them as damages for any unpaid invoice without prejudice to its right to cancel the Orders in progress, as defined under article 5.6.4 above. In this respect, the Seller reserves the right to draw up or have drawn up an inventory of the Products in possession of the Buyer that hereby undertakes to give free access to its warehouses, stores or other premises for this purpose, taking care that it is always possible to identify the Products.
The Buyer is authorized, in the context of the normal running of its business, to resell the Products but cannot pledge them or transfer their ownership as a guarantee. In the case of resale, the Buyer undertakes to immediately pay the Seller the part of the price remaining due.
The Buyer is authorized in the context of the normal running of its business to transform the Procducts. In the case of transformation, the Buyer undertakes to immediately pay the part of the price remaining due to the Seller. In the case of attachment or any other action by a third party, the Buyer is bound to immediately notify the Seller.
- In the case of institution of safeguarding proceedings, receivership or court-ordered liquidation against the Buyer:
- the aforesaid authorization to resell and / or transform is automatically withdrawn,
- the Orders in progress shall be automatically cancelled,
- the Seller reserves the right to claim the Products in stock.
- This clause does not prevent the risks of the Products from being transferred to the Buyer upon their delivery to the latter in accordance with article 4.1 above.
- As of delivery, the Buyer is made depository and keeper of the Products. It, consequently, undertakes to ensure that the Products are insured, as of delivery, against the risks of loss, theft and destruction and to provide proof of this to the Seller upon first request by it. Failing this, the Seller reserves the right to delay delivery of the ordered Products until presentation of this proof.
5. ACCEPTANCE OF GOODS
5.1 – Buyer must inspect goods delivered upon receipt. Buyer is deemed to have accepted goods delivered unless written notice of rejection specifying the reasons for rejection is received by Seller within three (3) calendar days after delivery of the goods.
6.1 – Seller represents and warrants hereby that the all goods delivered hereunder shall comply with the Applicable Specifications and shall be free from any defect in material and workmanship under normal use and service. Applicable Specifications shall be defined as follows; If Buyer has not provided specifications that have been accepted by Seller in writing, Seller warrants that the goods will meet Seller’s then applicable design specifications and inspection quality levels for goods of the type sold. If Buyer has provided specifications that have been accepted by Seller in writing, Seller warrants that the goods will conform to the specifications. Buyer shall remain responsible of the components if he has selected components suppliers.
6.2 – With respect to goods which do not conform to the warranty, liability is limited, at Sellers election, to (i) refund of the purchase price for such goods less a reasonable amount for usage, (ii) repair of such goods, or (iii) replacement of such goods; provided, however, that such goods must be returned to Seller within fourteen (14) calendar days after discovering the lack of conformity or ought to have discovered it, and provided the defect is notified to Seller in writing within twelve (12) months after the date of shipment.
6.3 – These warranties shall be practiced under the conditions: (i) Seller is promptly notified in writing upon discovery by Buyer that the Products that fail to conform with a detailed explanation of any alleged deficiencies; (ii) A Return Authorization Number is issued by Seller and notified to the Buyer; (iii) Products are returned to Seller, transport cost at Buyer’s account with Seller’s Return Authorization Number clearly visible on the outside of the package; (iv) Seller’s examination of the Products shall disclose that such alleged deficiencies actually exist and were not caused by accident, misuse, neglect, negligent handling, alteration, improper installation, lack of reasonable maintenance and care, unauthorized repair or improper testing, accident or abuse by anyone other than Seller.
6.4 – If Seller elects to repair or replace any of the Products, Seller shall have a reasonable time to make the repair or replacement. Transport cost from Seller to Buyer of the Products repaired or replaced by Seller shall be at Seller’s account if the Products are within the scope of warranty. If the Products are out of warranty, cost of repair or replacement and transport cost from Seller to Buyer of the Products repaired or replaced by Seller shall be borne by Buyer.
6.5 – Seller’s warranty will not extend to any goods that have been subjected to: (i) operating conditions or applications outside of the rated capacity of the goods; (ii) improper installation, transit or storage; (iii) accident, damage, misuse or abuse; (iv) unusual or abnormal operating conditions or applications; (v) operating conditions or applications not made known to Seller in writing prior to the date of Seller’s order confirmation; or (vi) a purpose or application in any way different from that for which they were designed. Any description of the goods made by Seller does not create an express warranty different from that provided in this paragraph 6.
6.6 – Seller makes no other warranty, express or implied, whether based in contract, tort, indemnity, and statutory provision or otherwise, with respect to goods delivered hereunder, and the warranty constitutes Seller’s sole obligation in respect of any lack of conformity of goods delivered hereunder (except title). In particular, Seller makes no warranty with respect to the merchantability of goods delivered or their suitability or fitness for any particular purpose.
7. CHANGE FOR IMPROVEMENT
7.1 – Unless otherwise agreed in writing, Seller reserves the right to make design changes of the goods at its sole discretion and judgment which Seller believes will improve its goods
8. COMPLIANCE WITH RADIO SPECTRUM, EMC, PRODUCTS SAFETY AND HAZARDOUS SUBSTANCE CONTROL REGULATIONS
8.1 – Buyer shall agree that it is sole responsibility of Buyer to define and take necessary action for compliance with radio spectrum control, EMC, products safety and hazardous substances control regulations and any other legal requirement to put the goods and/or use the goods in the country where the goods are used. Buyer shall hold Seller harmless from any responsibility resulting from Buyer’s failure to comply with such regulations of the country goods are used.
9. INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT
9.1 – All technical documents provided by the Seller for the Buyer continue to be exclusively owned by the Seller, the sole holder of the intellectual property rights on these documents which must be returned to it when it first makes the request. Accordingly, the Contract does not imply any assignment of intellectual property rights attached to such documents for the benefit of the Buyer.The Buyer undertakes not to make any use of these documents which could infringe the Seller’s industrial and intellectual property rights and is prohibited from disclosing them to a third party.
9.2 – The process audits shall only be accepted under certain conditions of confidentiality and by express agreement of the Seller management. They are not systematic and cannot, in the case of refusal, constitute a reason for cancelling the Order.
9.3 – Unless otherwise indicated in writing by the Buyer, the latter authorizes the Seller, acting in the course of its professional activity, to use its name and logo as a commercial reference
10.1 – Apart from the guarantees expressly formulated above, the Seller shall not be bound to indemnify the Buyer or third parties for any other loss or damage undergone. In particular, the Seller shall not, under any circumstances, be held liable for any damage caused to the property of the Buyer or a third party resulting from a defect in the Products, or, generally, for any consequential and/or indirect damage, including but not limited to loss of earnings, loss of customers, commercial loss or damage to brand image. Moreover, the Seller shall not be held liable for any non performance of the contract due to a reason outside its control and, in particular, due to the incapacity of its suppliers to deliver the ordered materials or in the event that it finds itself, temporarily or definitively, prohibited from marketing the Products, due, notably, to the non-respect by its suppliers of specific legislations or a modification to the regulatory environment applicable to the said Products.
10.2 – In any event, the Seller’s liability in respect to the boyer is limited to the amount of the net purchase price paid by the buyer. Moreover the Seller shall always be able to oppose action for liability by bringing into compliance or simply replacing the defective or non-compliant product.
11. MAJOR FORCE
11.1 – In the first instance, any case of force majeure will suspend the obligations of the parties. On the occurrence of such an event, the Seller shall notify the Buyer in writing, notably by fax or e-mail, within twenty-four (24) working hours of the day when the event occurs, of the automatic suspension of the Contract, without indemnity, as of the date of occurrence of the event.
If the event lasts more than thirty (30) days as of the date of its occurrence, the Contract concluded by the Seller and the Buyer shall be terminated by the most diligent Party, without either party being able to claim damages.
This termination shall take effect on the date of the first presentation of the registered letter with request for acknowledgement of receipt cancelling the said contract of sale.
The following are, in particular, considered to be cases of force majeure or accidental occurrences: a strike of all or part of the Seller’s staff or its suppliers and/or usual transporters, fire, flooding, war, stoppage of production due to an accidental breakdown, impossibility to be supplied with raw materials, epidemics, thaw barriers, road barriers, strike or breakdown in the EDF-GDF gas or electricity supply, or breakdown in supply for a reason not ascribable to the Seller, and any other reason for breakdown in supply ascribable to the Seller’s suppliers.
12.1 – The United Nations Convention for the International Sale of Goods shall not apply to these GTCS or to any contracts of sale entered into by Seller. Any question, relating to the GTCS and the sales that they govern which does not fall within the scope of these contractual stipulations, shall be governed by French law, to the exclusion of any other law, and, when not otherwise provided for, by the Vienna Convention on the international sale of merchandise.
12.2 – No waiver of any provision of these GTCS shall constitute a waiver of any other provision(s) or of the same provision on another occasion. Failure of either party to enforce any provision of these GTCS shall not constitute a waiver of such provision or any other provision(s) of these GTCS.
12.3 – Should any provision of these GTCS be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the parties and enforced as modified. All other terms and conditions of these GTCS shall remain in full force and effect and shall be construed in accordance with the modified provision.
12.4 – Buyer shall not assign its rights or its obligations under these GTCS without prior written consent of Seller.
12.5 – The Seller elects domicile at its registered office, as this is indicated on the first page.
Any disagreement arising between the parties regarding (1) the application of the GTCS, their interpretation or their performance (ii) the contracts of sale concluded by the Seller with the Buyer and (iii) the payment of the price, shall be referred before the PARIS commercial court, whatever the place of the Order, delivery, payment and payment method, and even in the case of introduction of third parties and more than one defendant.
The bills of exchange do not have the effect of making a novation or exception to this clause attributing jurisdiction.
The attribution of competence is general and applies to a main application, an incidental application or action on the merits or urgent proceedings.
In addition, in the case of legal action or any other action to recover debts instituted by the Seller, the costs of summons, legal costs and lawyers’ and bailiff’s fees and all other incidental costs shall be borne by the Buyer at fault, along with the costs linked or stemming from the non-respect by the Buyer of the payment or delivery conditions of the Order under consideration.
13.1 – In the event of the Buyer committing any breach of any the terms and conditions stated herein or provision of the Order, going into liquidation, having a receiver, examiner or other similar officer appointed over the whole or any part of its assets, becoming bankrupt or apparently insolvent or granting any trust deed or entering into any composition or similar arrangement with its creditors, or if any circumstances arise which, in the sole opinion of the Seller render any of the foregoing likely to occur, then the Seller shall be entitled, without notice and without any liability whatsoever, to terminate the Order forthwith. Seller shall also be entitled to cancel all Orders or any part thereof remaining unfilled between the Seller and the Buyer. Termination of the Order shall not discharge any pre-existing liability of the Buyer to Seller and on such termination Seller shall be entitled to recover from the Buyer such loss or damage as Seller has suffered by reason of such termination.
14. ENTIERE AGREEMENT
14.1 – This Agreement constitutes the entire agreement between Seller and Buyer with respect to the matter contained herein and supersedes all prior oral or written representations and agreements.
15. PERSONAL DATA
15.1 – By placing an order, the Buyer is informed and agrees that the Seller may store, process and use the data mentioned in the Order for the purpose of processing the latter, in accordance with the provisions of the “Loi Informatique et Libertés” of January 6th 1978 amended by the law of October 7th 2017 and with the provisions of the GDPR n° 2016/679. Otherwise, the Seller will not be able to process its Order.
15.2 – This information is strictly confidential and is only intended to the Seller. It is stored for a period of 3 years from the last commercial relationship.
15.3 – In accordance with the regulations, the Buyer is entitled to an access right, rectification right, right to erase its personal data, right to restriction of processing, right to object, right to data portability, right to file a complaint towards a supervisory authority and a right to provide instructions on the fate of the personal data after his or her death.