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These general terms and conditions of sale apply to all sales concluded by the company MECANOKIT, domiciled at ZI La Croix des Chaumes - 85170 LE POIRE-SUR-VIE (France) - registered in the La Roche-sur-Yon Trade and Companies Register under number 388 091 761 (hereinafter referred to as "the Seller") to its professional Customers (hereinafter referred to as "the Buyer"), concerning its standard products (hereinafter referred to as "the Products"). Consequently, these general terms and conditions of sale constitute the sole basis for commercial negotiation in accordance with article L 441-6 of the French Commercial Code and serve as a reference for the provisions of article L 442-6 of the same Code.
The Buyer waives the right to rely on any provisions contrary to these conditions. These general terms and conditions of sale, which cancel and replace all previously published conditions, apply from 15 September 2014.
Any deviation from these general terms and conditions must be expressly accepted by the Seller in writing. For the purposes of these general terms and conditions, "written" means any document drawn up on paper, electronically or by fax.
The following form an integral part of the contract: these general terms and conditions, the special terms and conditions accepted by both parties, the order accepted by any means, in particular by acknowledgement of receipt or confirmation of order, the Vendor's technical documents supplementing these general terms and conditions (technical data sheets, notices, etc....), the delivery note and the invoice.
Any order implies the Buyer's unreserved acceptance of these terms and conditions, unless the Seller grants the Buyer special terms and conditions in writing.
Any commercial document other than these general terms and conditions of sale, in particular catalogues, prospectuses, advertisements and, more generally, documents presenting and promoting the Vendor's Products, are for information purposes only and are not contractually binding on the Vendor.
The fact that the Seller does not avail itself at a given time of any of these general conditions of sale may not be interpreted as an express or tacit waiver of the right to avail itself of any of the said conditions at a later date.
The Seller and the Buyer agree to submit any dispute of any nature whatsoever arising from the application, interpretation or performance of these General Terms and Conditions of Sale to the Commercial Court having jurisdiction over the Seller's registered office, unless the Seller prefers to bring the matter before any other competent court.
The applicable law is French law. The French language shall prevail over any other translation in the event of any dispute, litigation, difficulty in interpreting or executing the General Terms and Conditions of Sale and more generally concerning the relationship between the parties.
In order to be taken into account, all orders must be received by the Vendor in writing (by e-mail, letter or fax) and must include all the information required to enable the Vendor to analyse the order.
Any order made by the Buyer or transmitted by a representative of the Vendor is valid only after written confirmation by the competent management of the Vendor. The benefit of the order is personal to the Buyer and may not be transferred without the written agreement of the Vendor.
The Buyer's orders are firm and final. No cancellation of an order, whether total or partial, by the Buyer may be taken into account without the Vendor's prior written agreement. Furthermore, in the event of a modification to the Buyer's order, accepted by the Vendor, the latter will be released from the delivery deadlines initially agreed.
The Products are supplied at the prices in force on the day the order is placed.
However, the prices may be revised at any time by the Seller, in particular as a result of an increase in the cost of raw materials, the increase or creation of taxes applicable in the Seller's sector of activity, supply conditions, etc...
Price revisions will be communicated to the Buyer.
These prices are stated exclusive of VAT and other taxes at the rate in force on the date of invoicing.
The Buyer is free to determine its commercial policy and resale prices. It is therefore solely responsible for setting and advertising its prices in accordance with the regulations in force.
5.1. Unless there are special conditions, sales are settled by the Buyer within 30 (thirty) days net from the date of invoice.
For all purchases of Products manufactured to order, a minimum deposit of 30% of the total invoice price will be required when the order is placed.
The aforementioned payment deadline may not, by express agreement between the parties, be delayed for any reason whatsoever. Claims made by the Buyer may under no circumstances postpone the due date for payment of the order to which they relate.
No discount for early payment will be granted, except with the Vendor's prior written agreement.
Invoices are payable in all circumstances at the Seller's registered office, by accepted bills of exchange, bank transfers or any other method of payment determined by the Seller in accordance with the due date. Invoices are deemed to have been paid when the amount stated thereon has been definitively credited to the Seller's bank account.
5.2 In the event of late payment by the Buyer beyond the agreed deadline, and from the day following the payment date shown on the invoice, late payment penalties equal to three times the legal interest rate will be automatically and by operation of law payable to the Seller, without any formalities or prior formal notice, in accordance with Article L 446-1 of the French Commercial Code. This interest runs from the due date until full payment of the amount due.
Late payment interest will be increased by a minimum fixed indemnity for collection costs of 40 euros, pursuant to the provisions of Articles L.441-3 and L.441-6 of the French Commercial Code.
If the recovery costs incurred by the Vendor exceed 40 euros, the Buyer shall reimburse all the costs incurred by the Vendor and caused by the contentious recovery of the sums due, up to an indemnity equal to 10% of the sum remaining unpaid on the due date, duly justified by the Vendor, without prejudice to any other action that the Vendor may be entitled to take against the Buyer in this respect and any compensation for damages that may be awarded to the Buyer. Any deposit paid by the Buyer may be retained by the Vendor under the aforementioned penalty clause.
Finally, forty-eight hours after a formal notice has remained without effect, the sale will be terminated by operation of law if the Vendor sees fit, and the Vendor may request, in summary proceedings, the return of the Products, without prejudice to any other damages and interest.
In addition, non-payment of a single invoice automatically renders the amount of the other invoices still due to the Vendor immediately payable, all the sums in question being subject to the same provisions as defined above.
Furthermore, in the event of non-compliance with the terms of payment set out above, the Seller also reserves the right to suspend or cancel the delivery of orders in progress and, more generally, to suspend the performance of its obligations.
5.3. Any deterioration in the Buyer's credit and, more generally, any change, whatever its origin, in the Buyer's situation, may justify the requirement of guarantees and/or specific payment terms set by the Seller, or even the refusal by the Seller to fulfil orders placed by the Buyer.
6.1. Unless otherwise agreed, the Products will be delivered from the Seller's warehouses in accordance with the EXW Incoterms (Ex Works - ex Seller's warehouse, in accordance with the latest version of the Incoterms drawn up by the International Chamber of Commerce). This method of sale applies even if the Seller organises the loading or transport of the Products on behalf of the Buyer.
The Buyer therefore bears all costs and risks inherent in loading/unloading and transporting the Products from the Seller's warehouse to its own warehouses.
The availability or delivery times indicated by the Vendor are given for information purposes only and depend on supply possibilities. Exceeding delivery times may not give rise to damages, deductions or cancellation of the order in progress. The Vendor undertakes to keep the Buyer informed in the event of a delay or deferment of total or partial delivery.
6.2. The Products travel at the risk and peril of the Buyer, who is responsible for checking the condition, quantity and quality of the Products and therefore their conformity with the content of the order placed. To this end, the Buyer undertakes to :
6.3. Apart from the problems of transport damage, shortages, apparent defects or non-conformity of the order referred to in paragraph
6.2 above, all other complaints by the Buyer concerning the quality of the Products, defects that are not apparent or hidden defects, in order to be taken into account by the Vendor, must be sent to the Vendor by registered letter with acknowledgement of receipt, expressly specifying the product concerned and, where applicable, its serial number, and must be accompanied by the purchase invoice and, more generally, all information and justification as to the reality of the defects observed.
6.4. In the cases provided for in paragraphs 6.2 and 6.3 above, the Buyer must allow the Seller to ascertain any apparent defects or latent defects and, where appropriate, to remedy them. The Buyer shall therefore refrain from intervening itself or using a third party for this purpose.
The Buyer must also take all steps to avoid aggravating the apparent defects or hidden faults observed, failure to comply with this condition excluding any liability action that may be brought against the Seller.
Products may not be returned without the Vendor's prior written consent (evidenced by a return form completed by the Vendor and sent to the Buyer). Unless otherwise agreed in writing by the Vendor, the costs and risks associated with the return transport of the Products shall be borne by the Buyer.
Any return refused by the Vendor or any Product returned without the Vendor's prior agreement will not give rise to the issue of a credit note or to replacement.
In addition, in such cases, the Vendor's After-Sales Service will provide the Buyer with a repair estimate including the cost of intervention as well as travel expenses, where applicable.
If the Buyer does not accept the terms of the repair estimate within a maximum of 30 days, the Vendor will return the Product to the Buyer, who will bear the costs and risks associated with return transport.
Any return accepted by the Seller will result in the establishment of a credit note in favour of the Buyer or the replacement of the Products at the Seller's discretion, to the exclusion of any damages or other compensation.
6.5. The specific provisions relating to the application of the contractual Product warranty are defined in paragraph 8.1 below.
As a professional, the Buyer shall be solely responsible for the choice, storage and use of the Products purchased from the Seller. In this respect, he declares that he is fully informed of the characteristics and developments of the Products purchased from the Vendor.
The Products are delivered with technical documentation that complies with legal requirements.
The Buyer undertakes to familiarise himself/herself with this documentation and to pass it on to the sub-purchasers.
The Buyer acknowledges having been able to obtain all necessary details concerning their packaging, conditions of storage, use and operation, and consequently having acquired and used them with full knowledge of the facts.
The Buyer shall be solely responsible for determining and ensuring the suitability and adequacy of the Seller's Products for their intended purpose and the circumstances in which they are to be used. Any advice or information given by the Seller concerning the suitability and applications of the Products shall not relieve the Buyer from carrying out its own tests and checks.
The Seller reserves the right to develop its Products at any time and without notice. Consequently, no charge may be made for the removal of old components or for the installation of upgrades.
8.1. Unless otherwise specified, the Products sold are contractually guaranteed by the Seller to the Buyer or sub-purchaser against any defect in material, manufacture or operation, for a period of twelve (12) months or 1,000 hours, from the date of delivery or taking possession.
8.2. The warranty is only applicable if the Buyer has fulfilled the general obligations of this contract and in particular the payment and warranty conditions.
This guarantee is strictly limited to the Products supplied by the Seller and does not apply to the apparent defects and/or missing items referred to in paragraph 6.2 above.
When the Products are incorporated by the Buyer or a sub-purchaser into any equipment, the latter shall be solely responsible for the adaptation, choice and suitability of the Seller's Products. The guarantee is not granted, in particular, in the event of faulty assembly, adaptation, design, relationship and operation of the assembly or parts of the assembly thus created.
Any warranty is excluded in the event of failure to comply with the Seller's recommendations, misuse, negligence or lack of maintenance on the part of the Buyer or any other sub-purchaser.
Defects or deterioration of the Products resulting from an external accident, abnormal storage and/or conservation conditions at the Buyer's or sub-purchaser's premises, shall not entitle the Buyer to the Seller's guarantee.
The guarantee does not apply when replacement or repair is the result of normal wear and tear, abrasion and corrosion of the Product or force majeure.
The present warranty is also excluded in the event of a defect resulting from the repair or intervention of a third party on the Products, in the event of a poor assessment by the Buyer of his needs, and in the event of modifications made to the Products.
When the Buyer assembles and installs the Products sold, any warranty is excluded in the event of a defect resulting from the assembly and/or installation of the product by the Buyer, as well as in the event of failure to comply with the assembly and use instructions, if any, provided by the Seller.
Finally, under the terms of this contractual warranty, which is limited, at the Seller's option, to the replacement or repair of Products under warranty that are deemed to be defective, the Seller may not be held liable for any other direct material damage caused to the Buyer, or to its customers/sub-purchasers, or for the consequences, of any nature whatsoever, that the defects may have caused.
Thus, under no circumstances will the Seller be liable to compensate for immaterial or indirect damage such as: operating losses, loss of profit, loss of opportunity, commercial loss, loss of image, loss of earnings.
8.3. In order to assert his rights under the contractual guarantee set out above, the Buyer must, on pain of forfeiture of any action relating thereto, inform the Vendor, by registered letter with acknowledgement of receipt, of the existence of the defects within a maximum period of 72 hours from their discovery, occurring during the contractual guarantee period.
The Buyer must provide the purchase invoice or the warranty certificate as well as any justification as to the reality of the defects observed.
Once this information has been notified to the Vendor within the aforementioned 72-hour period, the Buyer must return to the Vendor, at his or her own expense, the Product which he or she considers to be defective, within fifteen days of its discovery.
The Seller alone is authorised to carry out, directly or indirectly, any observation and verification in its workshops.
Its warranty is limited, at the Seller's option, to the replacement or repair of Products under warranty that are deemed to be defective.
In the case of replacement, an invoice will be issued for the new Product, which will be cancelled by a credit note once the defective Product has been received and analysed as such by the Vendor.
Interventions under the guarantee shall not have the effect of extending the duration of the guarantee.
8.4. In any event, the Vendor's civil liability, for all causes with the exception of bodily injury and gross negligence, is limited to a sum not exceeding the amount of the sums collected in respect of the sale which is the subject of the dispute.
Where necessary, it is hereby recalled that the Seller has exclusive rights over the trademarks and distinctive signs as well as the other Intellectual Property Rights relating to its Products (in particular, technical and commercial data sheets, plans, photographs, etc., without this list being exhaustive) in order to be the owner thereof.
Consequently, the Buyer may not acquire, modify, exploit or register any industrial or intellectual property rights, such as patents, designs, models, trademarks, commercial names, references and other distinctive signs of the Products, granted to or belonging to the Seller, and in particular on the Products, technical or commercial documentation, names, trademarks, etc...
Any exploitation, production, modification and more generally any use contrary to the rights of the Seller, will give rise on the part of the Seller to any action of its choice, both civil and criminal, in order to put an end to such behaviour and to compensate for the prejudice suffered.
The Buyer undertakes not to register, directly or indirectly, in the territory or outside it, any of the patents, designs, models, trademarks, trade names, references and other distinctive signs granted to or belonging to the Seller or which resemble them, nor to incorporate them, even partially, into its name or into one of its distinctive signs or domain names.
The Buyer undertakes to inform the Seller without delay of any infringement of the Seller's industrial or intellectual property rights in the territory of which it becomes aware. The Buyer undertakes to do its best to assist and help the Seller to protect itself against such infringements.
The Seller reserves the right to suspend or terminate all or part of the sale, ipso jure, in the event of force majeure or fortuitous events such as, in particular, strikes, lock-outs, bad weather, insufficient quantities of Products on the market, likely to halt or reduce the sale of its Products or any causes not directly and exclusively attributable to the Seller.
The Vendor will inform the Buyer as soon as possible. Orders in progress are therefore postponed until the end of the force majeure event.
THE PRODUCTS ARE SOLD SUBJECT TO RETENTION OF TITLE: THE TRANSFER OF TITLE IS SUBJECT TO FULL PAYMENT OF THE PRICE BY THE BUYER ON THE AGREED DUE DATE.
The Vendor reserves ownership of the Products sold to the Buyer until full and effective payment of the full price has been received by the Vendor. The Products are considered to have been effectively paid for when the total price, including taxes, has been definitively credited to the Vendor's bank account. Failure to pay on any of the due dates may therefore result in the Products being reclaimed. Nevertheless, from the time of delivery, the Buyer assumes responsibility for any damage that these Products may suffer or cause.
The parties reciprocally undertake a general obligation of confidentiality relating to all oral or written information, whatever it may be and whatever the medium, exchanged within the framework of the preparation and performance of the contract, except for information which is generally known to the public or which may become so through no fault of the Buyer.
The Buyer undertakes to take all necessary measures to ensure compliance with this obligation of confidentiality, throughout the term of the contract and even after its expiry, and undertakes to ensure that all of its employees comply with this obligation. This obligation is an obligation of result.
The Parties authorise each other to collect, process and transfer personal data concerning themselves or their Customers, in particular for the purposes of performing this Contract.
This data may be transmitted to any contractor or entity in their group, for the purposes of carrying out their respective activities.
The Parties have the right to access, modify, rectify and delete data concerning them, in accordance with the amended French Data Protection Act of 6 January 1978.
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