I - BIDS AND ESTIMATES
1. All Bids and estimates belong to the Seller and will be delivered to the Buyer by hand or by mail. Estimates and written materials will be provided free of charge when followed by an order for their proposed service: in the absence of order, the Seller has the right to charge for reimbursement of relevant work and travel costs, and to request the return of all written materials.
2. The Seller preserves the intellectual property rights in plans, designs and drawings in their entirety: the Buyer should not communicate said plans, designs and drawings to third parties, nor execute the same without the Seller’s express written authorization.
3. Any indicative measurements relating to foundations that may appear on plans or written materials transmitted by the Seller to the Buyer are provided for the sole purpose of information. The Buyer bears full responsibility for design and building of foundations.
II - AGREEMENT OF SALE
1. The agreement of sale includes :
- A written agreement signed by the two parties ; or an order with its return receipt.
- The present general terms of sale, which should be written in the agreement of sale.
- If necessary, additional customized terms and/or special terms.
- Payment of deposit upon placement of the order.
2. Date of delivery by the Seller will be determined by the date of payment of deposit.
3. All terms of sale agreement will be confirmed in writing by the Seller’s competent service.
4. Any and all clauses introduced by the Buyer ; architect’s or consultant engineer’s fees, or any other terms of sale for which the Seller has not given express prior written consent, are not enforceable as against the Seller.
III - DELIVERY, INSTALLATION AND START-UP OPERATION
1. Delivery is a transfer of risk
Delivery will be performed at the Seller’s factory or warehouse, or at some other place specified by the Seller, regardless of whether the agreement includes services such as shipping, installation, and start-up operation.
2. The Seller will be released from all obligations relating delivery date, installation and start-up operation in the following cases :
a) In the event that the Buyer fails to meet the terms of payment.
b) In the event that the Buyer fails to provide the Seller in due time with all components under the Buyer’s responsibility and necessary to complete the transaction; or in the event that these components have been modified prior to completion of said transaction.
c) In the event of acts of God or events including but not limited : shut down, epidemic, shipping delay, war, eminent domain, scrapping of essential parts during manufacture, fire, flood, severe weather conditions, total or partial lay-off.
3. Prior to commencement of installation, delivered goods must be protected from the elements.
4. In the exceptional event that a late clause, enforceable against the Seller, is inserted the total amount of the penalty fees can in no case exceed 5 % of the total sale, before taxes.
Acceptance of a late penalty payment constitutes forfeiture of all other claims, notably damage claims.
IV - PERFORMANCE
In agreement stipulating that the Seller should perform start-up operation, the performance is deemed as complete once operation has commenced, typically subsequent to installation. In the event that the Buyer commences operation, or if for one week subsequent to installation operation cannot be commenced owing to some fault of the Buyer, the performance is deemed complete de facto.
V - TERMS OF PAYMENT
1. Payment will be made in the Seller’s place of residence; in full without discount; in French currency unless otherwise stipulated; payment is due as according to the specific terms of payment set out in the agreement of sale.
2. Failure to remove by the Buyer will not prevent enforcement of the terms of payment once factory delivery is completed.
3. The terms of payment cannot be deferred in any event whatsoever, including legal action.
4. In the event of late payment with relation to the terms of the agreement, outstanding amounts will bear interest, calculated based on legal interest rates x 3 or on BCE rate +10 % increase, as well as a lump indemnity for collection fees amounting to 40.00 € at the moment of the payment according to the article L441-6 of the commercial law.
VI - TITLE
By mutual agreement of the parties, all sales made by the Seller will be completed only when the price has been paid in full. Prior to such time, title, to the goods sold will remain the property of the Seller. If the Buyer is in arrears on one or more instalments eight days after notice thereof, the Seller has the right to cancel the present agreement and reclaim the goods by court order from the President of the Tribunal of Commerce of MONTREAL which the parties mutually recognize as having jurisdiction in this matter.
In the same decision, the court will appoint an expert to assess the condition and value of the returned goods : the party’s respective accounts should be settled on the basis of said assessment and with respect to damages payable by the Buyer as a cancellation penalty, set in the amount of 1,500 Euro.
The Seller reserves the right to reclaim the goods sold at any time during the life of agreement by court order, in the event of manifest deterioration of the Buyer’s solvency, and notably in the event of bankruptcy or default in any business transaction, even as regards third parties.
In the event that the goods delivered by the Seller are manufactured or transformed by the Buyer, the Seller becomes the co-owner of the transformed or manufactured thing in the proportion that the value of the transformed or manufactured thing exceeds the value of the goods delivered. In such an even, the Tribunal of Commerce of MONTREAL will issue a writ attachment and sale of the transformed goods and order the bailiff pay the Seller from the proceeds of the sale, in an amount up the value of the materials.
The Seller reserves the right to file for bankruptcy pursuant to the terms of the French statutes, law 80-335 dated 15th of May 1980.
VII - WARRANTY
1. The Seller hereby agrees to repair malfunction arising from defects of construction, material or execution (including installation, if performed by the Seller), under the following terms :
2. The warranty does not cover :
- Replacements or repairs resulting from normal wear and tear of the material, including parts exposed to flame;
- Deterioration or accidents resulting from negligence, improper supervision or maintenance, or improper use of the supplies.
- Malfunctions resulting from material supplied by the Buyer, for design or modification made by the Buyer without the Seller’s consent.
- Cases in which the Buyer has replaced parts of the Seller’s supplies with parts from different origin.
- Incidents resulting for acts of God.
3. The warranty becomes effective on the date of delivery. If delivery is deferred, the warranty will become effective on the new date of delivery. If however, deferral is due to causes beyond the Seller’s control, deferral of the warranty period should not exceed three months from notice of the good’s availability.
The warranty applies solely to malfunctions which occur during the first six months (warranty period).
4. To benefit from coverage under warranty, the Buyer must have satisfied the terms of payment under the agreement, and notify the Seller promptly and in writing of the malfunctions apparently imputable to the goods, providing substantiating evidence thereof. The Buyer should facilitate the Seller’s inspection and repair of malfunctions in every possible manner; moreover, without the Seller’s express agreement, the Buyer should refrain from making such repairs or having such repairs made by a third party. Modifications, repairs, or other works conducted without the Seller’s express agreement, will render the present warranty null and void.
5. Once the Seller has received notice from the Buyer, the Seller should ensure proper functioning of the goods supplies by restoring their condition or replacing defective parts.
6. Performance as according to various industrial data (production capacity, settings margin, motor force consumption etc.) which are generally recorded in current practice as regards the material’s use by competent personal, should in no way engage the responsibility of the Seller.
7. The Seller’s responsibility is strictly limited to the performance defined herein, and it is expressly agreed that the Seller will not owe damages to the Buyer for any all accidents which may occur, including but not limited to : injury to persons, damage to goods separate from the subject-matter of the present agreement, production shortfalls, temporary mechanical shut-down, damage payments to third parties etc.
V III - REGULATION
The Buyer will be responsible for the following: enforcing current regulations, for example regulations of safety, hygiene and environmental protection etc. governing the operation of the goods supplied, and obtaining any necessary operating permits.
IX - DISPUTES
In the event of disputes relative to the goods supplied or to their respective regulation, the Tribunal of Commerce of MONTREAL will have sole jurisdiction, including appeals involving warranty, or disputes involving more than one defendant.
The Seller, however, reserves the right to bring an action before the court having jurisdiction in the Buyer’s place of business (company head office) or place of residence.
X - SEVERABILITY
In the event that one or more terms of the present agreement becomes null and void, all other terms will remain enforceable in their entirety.