1. APPLICATION AND ENFORCEABILITY OF THE GENERAL TERMS OF SALE
The present General Terms of Sale (GTS) shall be the basis of commercial negotiations. They are systematically provided to each buyer to enable them to place an order.
Therefore, unless stated otherwise in a specific agreement, placing an order implies the Buyer’s full and unconditional acceptance of the present General Terms of Sale, excluding the terms of any other document published by the Seller, such as brochures or catalogues (which are intended for illustrative purposes only).
No contradictory condition specified by the Buyer, unless expressly approved by the Seller, shall be imposable on the Seller, regardless of when the Seller learns of this condition.
The fact that the Seller does not exercise one of their rights under the present GTS at a given moment shall not deprive them from exercising any of their rights at a later time.
The order is not considered contractual until it has been expressly accepted by the supplier.
The order may be accepted in writing in any form.
Any order expressly accepted by the supplier, whether firm or open, implies that the Customer fully accepts the supplier’s offer.
Unless expressly agreed otherwise, confirmation of the order implies that the Buyer fully understands and accepts the Seller’s General Terms of Sale, and waives any right to assert their own terms of purchase.
2.1 Firm orders
A firm order is a commitment, specifying goods, quantities prices and times.
2.2 Open orders
Without prejudice to the terms of Article 1174 of the French Civil Code, an open order must meet the conditions stated below.
Unless expressly agreed otherwise, it is deemed open-ended and may be canceled by the supplier with six (3) months’ notice. It defines the characteristics and price of the product. The terms of the open order, such as prices and delivery time, are agreed according to the supplier’s offer, based on production planning.
Should the customer make changes to the estimated timetable for the entire open order, (timetable provided with the initial contract), and should said changes amount to 20% more or less of the originally estimated amount; the supplier will evaluate the consequences of this variation. In such case, the Parties should meet to find a solution to the consequences of this variation, which could change the balance of the contract to the supplier’s disadvantage.
2.3 CHANGES TO OR CANCELLATION OF ORDERS
Any change to, or cancellation of an order requested by the customer, will only be accepted only with the supplier’s prior express agreement. If the Seller does not accept the change or cancellation, the customer will compensate the supplier for all costs incurred for this order (eg specific equipment; studies, procurement and handling costs, stocks, work in progress, tooling) and for all resulting direct and indirect consequences.
3. PREPARATORY WORK AND SECONDARY WORK RELATED TO THE ORDER
Any plans, studies, descriptions, technical documents or quotations provided to the other party are considered lent solely for the purpose of evaluating and discussing the supplier’s commercial proposal. They may not be used by the other party for any other purpose of disclosed to any third party without the supplier’s prior express agreement. The supplier retains all material and intellectual property rights to the documents lent. These documents must be returned to the Supplier on first demand.
Samples of prototypes provided to the customer are covered by an obligation of strict confidentiality and may not be disclosed to any third party without the supplier’s prior express approval.
4. RETURNABLE PACKAGING
Unless the packaging is expressly purchased by the customer, they must return the packaging to the supplier. The deposit for the returnable packaging is payable at the same time as the products, according to the same terms. The deposit will be refunded only in the form of a credit note, once the packaging has been returned to the supplier. The packaging must be in good condition, carriage paid to SEAC’s plant in Saint-Étienne (42) France. Packaging with the seller’s trademark may not be used for anyone else’s products, including those of the customer. Any breach of this rule will expose the infringer to prosecution and payment of damages. Non-returnable packaging will not be taken back by the supplier. The customer undertakes to eliminate any non-returnable packaging, at their own expense, in compliance with local environmental laws.
Products are provided at the prices in force at the time of delivery. All prices are expressed in euros and include VAT applicable on the day of the order. Any change in the VAT rate may impact the price of products or services. The raw materials part of the price of the finished product may be revised according to market variation.
Unless expressly agreed otherwise, all prices are understood to be net, EXW, ex-packaging, and to exclude VAT, on the basis of the prices communicated to the buyer.
Any taxes, duty or other charge payable under French law or that of the importing country or country of transit, are at the buyer’s expense.
The product will be delivered as stated in the order: either by providing the product directly to the buyer, by notifying the buyer that the product is available, or by delivering the product to a shipper or transporter on the seller’s premises.
6.2 – Delivery time
Deliveries will be made only according to the availability of the goods, according to the order in which the orders arrive. The seller is authorized to make full or partial deliveries. Delivery time is estimated as accurately as possible, but may in fact, depend on availability of the goods and on the seller’s transporter. If a delivery is past due, this will not entitle the buyer to claim compensation , to retain payment, or to cancel orders in progress.
The following are considered force majeure cases discharging the seller from their delivery obligation: war, rioting, fire, strikes, accidents, and forces preventing the supplier themselves from being delivered. The Seller must inform the buyer in a timely manner of any such force majeure events. In any event, delivery on time can take place only if the buyer is up to date in their obligations to the supplier, for whatever reason.
The products are deliverable carriage paid. In any event, they travel at the customer’s risk. It is up to the customer to note any misdelivery and to express ant necessary reservations via an extrajudicial document, or registered letter with return receipt to the transporter within three (3) days of receipt of the merchandise.
Without prejudice to the above provisions concerning the Transporter, any claims about obvious defects or about non-conformity of the delivery to the order or delivery slip , must be made in writing within eight days of the arrival of the products. It is the Buyer’s responsibility to document the defects or nonconformity claimed. The Buyer must allow the Seller or the Seller’s Agent every chance to observe the claimed defects or non-conformity and to remedy the situation. The Buyer shall not attempt to service the products themselves or use a third party to do so. For products sold in packaging, the initial weight and measurement of the product shall prevail.
No goods may be returned without a formal agreement between Seller and Buyer. Any goods returned without said agreement will be held at the Buyer’s disposal and will not give rise to a credit note. The cost and risks of returning goods shall always be borne by the Buyer.
Any returned merchandise shall be sent with a return slip attached to the parcel. The merchandise must be in the same condition as delivered.
In the event of obvious defects or non-conformity duly observed by the Seller Agent under the terms of the-, the Buyer may obtain either replacement of the products free of charge or a refund,. This choice is entirely at the Seller’s discretion and excludes any indemnity.
The supplier’s liability is limited to the execution of parts which conform to the specifications, plans or descriptions provided by the customer. In no case does it include design of the parts. Any advice on the form or characteristics of the parts is given for information purposes only. The customer remains fully responsible for the industrial result. Generally speaking, the guarantee does not cover any incidents due to fortuitous events or force majeure.
10. RETENTION OF TITLE
The supplier retains entire ownership of the good covered by the contract until they have been paid for in full at the invoiced price. Nonetheless, once the goods have been delivered to the customer, the latter assumes complete liability for any damage to the said goods, for any reason whatsoever. Until they have been completely paid for, the goods may not be resold, transformed or incorporated without the supplier’s prior approval. Should the customer miss even one payment date, or should they in any way breach retention of title, the supplier is entitled, without prejudice to any of their other rights, to demand, via registered letter with return receipt, that the buyer return the goods at their own expense, until the buyer has fulfilled all of their obligations. To enable the supplier to exercise this right, the buyer agrees, on first demand, to authorize a physical inventory of the parts in the buyer’s possession, without this requiring any formal procedure whatsoever. Furthermore, the supplier may rightfully terminate the contract via registered letter with return receipt. Without prejudice to other rightful compensation, the buyer, in addition to their obligation to return the goods, may be charged a cancellation fee, corresponding to 20% (excl. VAT) of the unexecuted amount of the contract, assessed on the cancellation date.
11. INTELLECTUAL PROPERTY & CONFIDENTIALITY
All intellectual property rights, as well as the know-how incorporated into the documents provided, the products delivered, and the services performed remain the exclusive property of the supplier.
Any transfer of intellectual property rights or of know-how must be through a contract with the supplier. In any case, the supplier reserves the right to retain use their know-how and the results of their own research & development work as they see fit.
The customer is bound by a general obligation of confidentiality with regard to all oral or written information, regardless of the medium, exchanged for the purposes of preparing and executing the contract, except for information which is publicly known, or would have become publicly known without the customer disclosing it (hereafter the ‘confidential information”).
The Customer therefore undertakes to:
- keep confidential information strictly secret, and never divulge or communicate it in any way, directly or indirectly, entirely or partially, to anyone whomsoever, without the seller’s prior written authorization;
- not to use all or part of the confidential information for purposes or business other than execution of the contract;
- not to copy or imitate all or any part of the confidential information;
- do everything needed to comply with this confidentiality obligation, for the duration of the contract and even after its expiry, and guarantee that all of their employees will comply with this obligation.
11.2 Guarantee against IP infringement
The customer guarantees that, at the time the contract was concluded, the content of the plans and specifications and their conditions of use did not infringe on the intellectual property or know-how rights of a third party. The customer guarantees that they are free to use them without breaching any contractual or legal obligation. The customer further guarantees the supplier against any direct or indirect consequences of liability resulting from infringement or unfair competition.
12. BILLING & PAYMENT
An invoice is established in euros for each delivery. Payment terms are the following: forty-five (45) days, end of month. In the event of a late payment, the seller may suspend all orders in process without prejudice to any other right of action. Any amount not paid by the date stated on the invoice will rightfully give rise to late penalties equal to three (3) times the statutory interest rate, as from the day after the payment due date stated on the invoice. In the event of nonpayment, forty-eight (48) hours after unheeded formal warning, the seller may rightfully choose to cancel the sale, and seek legal action to have the products returned, without prejudice to claims for other damages. This cancellation will affect not only the order in question but, also all other earlier unpaid orders, whether delivered or being delivered, whether or not payment is due. In the case of payment by means of commercial paper, failure to return the accepted commercial paper will be considered as a payment default Similarly, Likewise, when payment is staggered, non-payment of a single installment shall lead to all of the debt becoming immediately payable, without prior formal notice. Outstanding balances for any other deliveries or any other reasons, will be immediately due, unless the Seller has opted for cancellation of the corresponding orders.
13. DISPUTES – JURISDICTION
In the event of a dispute concerning the interpretation or execution of their agreements, before taking legal action, the parties will first seek an amicable settlement and will communicate all necessary information for this. If an amicable settlement cannot be reached within a maximum of six (6) months, the only competent jurisdiction for any dispute whatsoever, or any claim concerning the formation or execution of an order will be the courts of Saint-Étienne (42) France, unless the seller prefers to bring the matter before another competent jurisdiction. This clause applies even in the event of summary proceedings, incidental claims, multiple defendants or the introduction of third parties, regardless of the mode and terms of payment, without any jurisdiction clauses on the buyer’s documents being able to obstruct application of the present clause.