Elektor airsystems SARL (FR)
Terms and Conditions of Sale and Service intended for Professional Customers
ARTICLE 1 - Scope of application
These Terms and Conditions of Sale and Service (“TCS”) constitute the sole basis of the commercial relationship between the parties.
Their purpose is to define the conditions under which ELEKTROR Airsystems SARL (hereafter the “Seller / Service Provider”) provides its Professional Customers (hereafter the “Customers” or the “Customer”) who so request, by direct contact or via paper or electronic medium, industrial fans, all Products of the Seller / Service Provider (hereafter the “Products”), or any Services offered (hereafter the “Services”).
These TCS apply without restrictions or reservations to all sales or Services agreed by the Seller / Service Provider for the benefit of Customers, regardless of the clauses that may appear in the Customer's documents and, in particular, its terms and conditions of purchase. They apply to negotiations prior to placing an order, particularly to obligations arising from the opening of contractual negotiations, but also to Customers, whether private or public.
Any order for Products or Services implies, on the part of the Customer, acceptance of these TCS.
The information on the website, catalogues, prospectuses and prices of the Seller / Service Provider are indicative and may be revised at any time. The Seller
/ Service Provider is entitled to make any changes that it deems useful.
ARTICLE 2 - Orders - Prices 2.1.
In order to offer products and solutions suited to its customers, the Seller / Service Provider offers its Customers the following ordering processes, distinguishing between orders for products or Services that meet customer requirements already known to the Seller / Service Provider and those for which this is not the case.
Orders for Products or Services meeting Customer requirements that are unknown to the Seller / Service Provider are treated as follows: Once the technical information has been sent by the Customer (sizing, power, etc.), the Seller / Service Provider submits a first technical proposal presenting the characteristics of the Product or Service offered and an estimate of its price. The Customer validates this technical proposal or requests modification of its characteristics in order to have the Products or Services of the Seller / Service Provider suit its needs. A firm offer is then sent in the form of a proforma invoice. It is accepted by the Customer within fifteen (15) days. Offers of the Seller / Service Provider are only valid for fifteen (15) days.
Orders for Products or Services meeting customer requirements known to the Seller / Service Provider are processed in this way in order to provide regular Customers with a faster order processing. Regular Customers place a written order for specific Products for a specific price specified by the Customer with the Seller / Service Provider. The Seller / Service Provider acknowledges receipt of this order in writing. This acknowledgment of receipt restates the price of the Product, the conditions and time frame of delivery and payment. It marks acceptance of the order by the Seller / Service Provider.
Any changes requested by the Customer can only be taken into account, within the limits of the possibilities of the Seller / Service Provider and at its sole discretion, if they are notified in writing at least five (5) working days after dispatch of the proforma invoice from the Seller / Service Provider or after the order confirmation.
The Products and Services are provided at the prices of the Seller / Service Provider in effect on the day of the specific commercial proposal sent to the Customer.
Unless otherwise stated in the order confirmation, technical proposals are non-binding. If a technical proposal is established on behalf of the Customer, the costs are reimbursed by the Customer based on the time required.
These prices are expressed net and exclusive of tax, in euros and for products sold ex works and excluding packaging costs. For the latter, they also do not include transport, any customs charges, or insurance, which remain the responsibility of the Customer. The parties agree to apply the rules of the “ex-works” Incoterm to their relations.
The Seller / Service Provider manufactures a custom Product for each Customer. The same is true for the Services offered. Manufacturing is only started once all of the Customer's requirements are known and the order has been placed. A unit price scale in effect and the price reduction scale are, however, attached to these TCS for the most usual basic versions of fans.
Obviously, special pricing conditions may be applied depending on the specifics requested by the Customer concerning, in particular, the terms and time frames of delivery, special conditions of Service, or the terms and conditions of payment. A specific commercial offer will then be sent to the Customer by the Seller, if necessary by means of an agreement as indicated in the Code of Commerce.
The conditions for determining the cost of the Services, the price of which cannot, a priori, be known or indicated with precision, as well as the method of calculating the price making it possible to verify the latter, will be communicated to the Customer or will be the subject of a detailed estimate, at the request of the Customer in accordance with the provisions of the Code of Commerce.
ARTICLE 3 - Terms of payment
Payment per order - Periodic payment
The price is payable in cash, in full on the day of ordering the Products or providing the Service under the conditions defined in the article “Delivery - Provision of Service” below and as indicated on the invoice given to the Customer.
Periodic invoices may be agreed if Services are being provided. In this case, payment must be made within fifteen (15) days of the issuance of each periodic invoice. Otherwise, the Seller / Service Provider may suspend the provision of its services.
Payment of a deposit in the event of a large order
In the event that the Customer's order exceeds three thousand euros (3,000 €) and if paragraph 3.1 is waived, the Seller / Service Provider reserves the right to require a deposit when placing the order. The amount of the deposit will then be indicated in the commercial proposal issued by the Seller.
The balance of the price will be payable in cash on the day of delivery, under the conditions defined in the “Deliveries” article below.
The Seller / Service Provider will not be required to deliver Products ordered by the Customer or provide Services if the latter has not paid the price under the conditions and in accordance with the terms indicated above.
Late payment penalties - Other consequences of payment default
In the event of late payment and payment of sums due by the Customer beyond the time limit set above, and after the payment date appearing on the invoice sent to the latter, late penalties corresponding to the rate of interest applied by the European Central Bank increased by ten (10) points (article L. 441-6 paragraph 3 of the Code of Commerce) will automatically and by right be acquired by the Seller, without any formality or prior notice.
Lastly, set compensation for collection, in the amount of forty euros (40 €) will be due, by law and without prior notification, by the Customer in case of late payment. The Seller / Service Provider reserves the right to ask the Customer for additional compensation if the collection costs actually incurred exceed this amount, upon presentation of supporting documents.
Non-payment by the due date of any portion of the price suspends deliveries and renders all invoices not yet due payable immediately, without notice or formality, except in case of a waiver agreed by common accord and confirmed by a written document from the Seller / Service Provider.
No discount will be applied by the Seller / Service Provider for payment before the date appearing on the invoice or within a period shorter than that mentioned in these TCS.
Absence of compensation
Unless express, prior and written approval has been obtained from the Seller / Service Provider, and provided that the reciprocal receivables and debts are certain, liquid and payable, no offsetting can be validly done by the Customer between possible penalties for non-compliance with delivery dates or non-conformity of the Products ordered by the Customer, on one hand, and the sums owed by the latter to the Seller / Service Provider for the purchase of said Products, on the other hand.
ARTICLE 4 - Clause of retention of ownership
The Seller / Service Provider reserves, until full payment of the price by the Customer, a right of ownership over the Products sold or all of its creations, allowing it to repossess said Products.
Any deposit paid by the Customer will remain with the Seller / Service Provider as set compensation, without prejudice to any other actions that it would be entitled to bring against the Customer as a result.
On the other hand, the risk of loss and damage will be transferred to the Customer upon delivery of the products ordered.
As a result, the Customer agrees to have the Products ordered insured, at its expense, for the benefit of the Seller, by an appropriate policy and until complete transfer of the ownership, and to provide proof of this to the Seller at the time of delivery or supply of the work.
Otherwise, the Seller / Service Provider would be entitled to delay delivery until this proof has been presented.
ARTICLE 5 - Discounts, Reductions and Rebates
The Customer may benefit from the discounts and rebates appearing in the Seller's prices, depending on the quantities acquired or supplied by the Seller / Service Provider at one time and one place, or on the regularity of its orders.
ARTICLE 6 – Delivery of the Products – Provision of the Service
The delivery time frames for the Products or for providing the Service acquired by the Customer will be indicated in the order confirmation.
In the event of modifications requested by the Customer after establishment of the contract, new delivery times will be agreed between the Customer and the Seller / Service Provider.
Delivery of the good or provision of the Service can be done at several times, if these multiple deliveries or supplies do not cause too much inconvenience to the Customer.
The liability of the Seller / Service Provider cannot, under any circumstances, be engaged in case of a delay or suspension of delivery that is attributable to the Customer or in the event of force majeure. The time frames provided remain purely indicative.
If, after placing its order, the Customer were to request early delivery, a quote quantifying the cost of this early delivery would be sent to it. This estimate would then have to be expressly accepted in writing by the Customer. Of course, the Seller / Service Provider reserves the right to refuse such early delivery, particularly if the latter were to create particular difficulties for it.
Delivery of the Products will be made by issuance of notice of availability of the Products or by delivery of the Products to a transporter, with the Products travelling at the risk of the Customer.
The Customer is required to check the apparent condition of the Products upon delivery or receipt of the Services. In the absence of reservations or complaints expressly formulated in writing and accompanied by the delivery note (for deliveries of products), by the Customer, within forty-eight (48) hours following delivery, or supply of the Services, the Products delivered by the Seller / Service Provider will be deemed to conform in quantity and quality to the order.
Insofar as acceptance is required by contract or by law, a separate partial acceptance is carried out at the request of the Seller / Service Provider for definable spare parts which can be used independently or for spare parts on which other services are based. This option is recognized by the Seller / Service Provider only if the spare parts to be received can be checked separately. When all parts of the service have been accepted, the last partial acceptance is also deemed as final acceptance.
No complaint can be validly received if these formalities and time frames are not respected by the Customer.
The Customer also recognizes the possibility for the Seller / Service Provider to be able to call upon subcontractors for performance of all of its commitments.
If the Seller / Service Provider delivers the Products on returnable pallets, the pallets must be exchanged in accordance with the following provisions. When delivering Palletized Products, the Customer must return the same number of exchangeable pallets of the same type and of the same quality or deliver them free of charge to the Seller / Service Provider within one (1) month. The UIC 435 4 standard of the International Union of Railways applies to the exchangeability. The delivered pallets can become, in certain cases because of their destination, the property of the recipient. They are compensated by other pallets of the same type and of the same quality. If the Products are not returned on time or if the pallets supplied by the Customer are not exchangeable or of the same type and quality, the Seller
/ Service Provider is entitled to invoice the Customer for the price of the new pallets. The Customer is free to prove that the conditions for a deduction based on the “new for old” principle or on lesser damage are met.
Since the Seller / Service Provider provides spare parts from suppliers, in particular engines, the latter may terminate the contract if the Seller / Service Provider does not, itself, take delivery on time or correctly despite identical orders.
ARTICLE 7 - Transfer of ownership - Transfer of risks
The transfer of ownership of the Products to the Customer will only take place after complete payment of the price by the latter, regardless of the date of delivery of said Products.
However, transfer of the risks of loss and damage of the Products from the Seller / Service Provider to the Customer will take place from the time that said Products are made available or delivered.
ARTICLE 8 - Liability of the Seller / Service Provider – Guarantee
The Products and Services delivered by the Seller / Service Provider benefit from the applicable legal guarantees, from the date of delivery, covering non- compliance of the Products with the order (reasonable period as understood by the French courts) and any hidden defect (two (2) years), resulting from a defect related to material, design or manufacturing affecting the Products delivered and rendering them unfit for use, starting from discovery of the defect in question.
This guarantee is limited to replacement or reimbursement for Products not in conformity or affected by a defect.
The Seller will replace, or have replaced, the Products or parts under guarantee that are deemed defective. This guarantee also covers labour costs. The possible obligation to incur the costs necessary for performance of these subsequent services, in particular the costs of transport, travel, labour and materials, is excluded in all cases insofar as charges are increased because the purchased item was transported to a location other than the recipient's home or business office after delivery, unless the transfer corresponds to the intended use of the item.
The guarantee forms an inseparable whole with the Product sold by the Seller. The Product cannot be sold or resold altered, transformed or modified.
Refund or replacement remains at the choice of the Seller / Service Provider. The guarantee is limited to the amount excluding tax paid by the Customer for the service or product ordered.
In order to exercise his rights related to the legal guarantees, the Customer will have to, at the risk of forfeiture of his right to pursue any related legal action, inform late Seller in writing of the existence of defects within a maximum of five (5) days starting from their date of discovery for hidden defects or from the day of delivery for defects of conformity.
Replacement of the Products or defective parts will not have the effect of extending the duration of the guarantee as specified above.
Lastly, the legal guarantees cannot apply if the Products have been used abnormally, or have been used under conditions different from those for which they were manufactured, notably in case of non-compliance with the conditions indicated in the instructions for use.
They also do not apply to the case of damage or accident resulting from a shock, fall, negligence, lack of supervision or maintenance, or in case of transformation of the Product.
Any warranty is also excluded in the event of normal wear and tear of the Product or force majeure.
The rights of the contracting party due to material defects whether resulting from the legal warranty or otherwise are excluded when purchasing pre-owned goods.
If the Products are manufactured or modified on the basis of specifications established and requested by the Customer, the Seller / Service Provider is not required to verify these specifications, unless otherwise agreed. The Customer has no action against the Seller / Service Provider for defects attributable to these specifications or to objects or equipment supplied by third parties and used by the Customer.
The Customer remains solely responsible for its own creations integrating the Products or Services of the Seller / Service Provider. It is solely responsible for them, particularly with regard to the requirements of its own end customers. The Seller / Service Provider does not have to test the results of its Customer.
Any property life expectancies communicated by the Seller / Service Provider are not binding on the Seller / Service Provider.
These limitations do not apply in cases of wilful breach or gross negligence, fraudulent concealment of a defect, damage resulting from injury to life, limb or health.
Limitation of liability
The Customer is only entitled to damages for the reimbursement of expenses rendered necessary by breach of the contractual obligation in question if the service due is not performed or is not performed by the Seller / Service Provider, due to a delay, is not performed by the Seller / Service Provider in accordance with its obligations or in the event of defects in the following cases:
- The damage results from injury to life, body or health caused by fault or negligence,
- The damage results from a violation of essential contractual obligations (obligations whose performance is essential for proper performance of the contract and which the Customer can legitimately expect), due to wilful misconduct or gross negligence;
- These reservations and limitations apply only subject to not being replaced by any mandatory regulatory or legal provisions.
Limitation of liability according to the amount
For harm resulting from violation of essential obligations and for damage resulting from wilful misconduct, insofar as they do not relate to injury to life, body or health, the latter will only be liable for damage normally foreseeable upon establishment of the contract.
Liability arising from pre-contractual obligations
The above provisions also apply to the Customer's claims for damages resulting from obligations related to the opening of contractual negotiations, preparation of a contract or similar business contacts. If a contract is established between the Customer and the Seller / Service Provider, establishment of this contract will constitute the Customer's waiver of any possible damages related to the pre-contractual period.
Receivables from assigned rights
The aforementioned provisions naturally also apply to claims that the Customer asserts against assigned rights. The Customer can only invoke a foreign law if this referral is justified by the actual application of the aforementioned provisions and, in general, of these terms and conditions of the contract.
ARTICLE 9 - Unforeseen circumstances
In the event of an unforeseeable change in circumstances at the time of establishment of the contract, in accordance with the provisions of article 1195 of the Civil Code, the party that has not agreed to assume a risk of excessively costly performance may request renegotiation of the contract with its co- contracting party.
If the renegotiation is successful, the parties will immediately issue a new order formalizing the result of this renegotiation for the relevant Product sales operations.
In addition, in the event of failure of the renegotiation, the parties may, in accordance with the provisions of article 1195 of the Civil Code, request from the judge, by mutual agreement, resolution or adaptation of the contract.
In the event that the parties do not find an agreement to refer to the judge by mutual agreement within thirty (30) days following discovery of this disagreement, one of them may refer a request to the judge for revision or termination of the contract.
ARTICLE 10 – Force majeure
The Parties may not be held responsible if non- performance or delayed performance of any of their obligations, as described herein, results from a case of force majeure, as intended under article 1218 of the Civil Code.
By express agreement, a case of force majeure is understood as:
- occurrence of a natural cataclysm;
- earthquake, storm, fire, flood, etc.;
- armed conflict, war, clash, attacks;
- labour dispute, total or partial strike at the supplier or customer site;
- labour dispute, total or partial strike among suppliers, service providers, transporters, post offices, public services, etc.;
- mandatory injunction from the public authorities (import ban, embargo);
- operating accidents, machinery breakdown, explosion.
The party observing the event must immediately inform the other party of its inability to perform its service and provide proof of it to the latter. The suspension of obligations may in no case be a cause of liability for non-performance of the obligation in question, nor lead to the payment of damages or penalties for delay.
Performance of the obligation is suspended for the duration of the force majeure event if it is temporary and does not exceed a period of sixty (60) days. As a result, once the cause of the suspension of their reciprocal obligations has ceased to exist, the parties will make every effort to resume, as quickly as possible, normal fulfilment of their contractual obligations. For this purpose, the hindered Party will notify the other party of the resumption of its obligation by registered letter with confirmation of receipt or by any extrajudicial document. If the impediment is final or exceeds a period of sixty (60) days, these terms and conditions will be terminated outright, according to the terms defined in the article “Termination for force majeure”.
ARTICLE 11 – Forced execution in kind
In case of breach of its obligations by any of the parties, the party harmed by the default has the right to request forced execution in kind of the obligations resulting from this agreement. In accordance with the provisions of article 1221 of the Civil Code, the party to whom the obligation is owed will have to pursue this forced execution after simple formal notice sent to the debtor about the obligation, which has been to no avail, unless it turns out to be impossible or if there is clear disproportion between its cost for the party owing the obligation, in good faith, and its interest for the party to whom the obligation is due.
It is reminded that in the event of failure of either Party to fulfil its obligations, the Party harmed by the default may, in accordance with the provisions of article 1222 of the Civil Code, thirty (30) days after sending formal notice to perform which has been to no avail, have the obligation performed by a third party, at the expense of the defaulting party, provided that the cost is reasonable and in line with market practices, without the need for judicial authorization, since the defaulting party may also, at its option, request that a court order the party in default to advance the amounts necessary for this execution.
ARTICLE 12 - Exception of non-performance
It is reminded that in application of article 1219 of the Civil Code, each party may refuse to perform its obligation, even though it is due, if the other party does not perform its own and if this non-performance is serious enough, that is to say, likely to call into question the continuation of the contract or fundamentally upset its economic balance.
The suspension of execution will take effect immediately, upon receipt by the defaulting party of the notification of breach which will have been sent to it for this purpose by the party suffering from the default, indicating the intention to apply the objection of non- performance as long as the defaulting party has not remedied the observed breach, served by registered letter with acknowledgment of receipt or on any other durable written medium making it possible to provide proof of dispatch.
This objection of non-performance may also be used as a preventive measure, in accordance with the provisions of article 1220 of the Civil Code, if it is clear that one of the parties will not perform the obligations incumbent upon it by the due date and that consequences of this non-performance are serious enough for the party that is the victim of the default.
This option is used at the risk of the party which takes the initiative.
The suspension of performance will take effect immediately, upon receipt by the presumed defaulting party of notification of the intention to apply the preventive objection of non-performance, and until the presumed defaulting party performs the obligation for which a future breach is evident, notified by registered letter with acknowledgment of receipt or on any other durable written medium permitting proof of dispatch.
ARTICLE 13 – Termination
Termination for force majeure
Automatic termination for force majeure can only take place fifteen (15) days after sending formal notice by registered letter with acknowledgment of receipt or any extrajudicial document.
Termination for breach of a sufficiently serious obligation
The party that is the victim of the default may, in the event of sufficiently serious non-performance of any of the obligations incumbent on the other party, notify the Defaulting Party by registered letter with acknowledgment of receipt about termination hereof due to the breach, fifteen (15) days after sending formal notice to perform which has been to no avail, in application of the provisions of article 1224 of the Civil Code.
Termination for non-performance by one of the parties of its obligations
In the event of non-compliance by either party with the following obligations:
- Payment (Article 3);
- Clause on retention of ownership (Article 4);
- Delivery of Products or provision of Services (Article 6);
- Intellectual property (Article 14)
referred to in the articles of this contract, it may be terminated at the option of the injured party.
It is expressly understood that this termination due to breach by a party of its obligations will take effect fifteen (15) days after notification to perform which has remained, in part or in whole, without effect. The formal notice may take place by registered mail with confirmation of receipt or by means of any extrajudicial document.
This formal notice must mention the intention to apply this clause.
ARTICLE 14 - Intellectual property
The Seller / Service Provider retains all industrial and intellectual property rights relating to the Products, photos and technical documentation, which may not be communicated or executed without its written authorization.
The Seller / Service Provider remains the owner of all intellectual property rights for studies, drawings, models, prototypes, etc., established (even at the Customer's request) with a view to providing the Services to the Customer. The Customer is thus forbidden from any reproduction or exploitation of said studies, drawings, models, prototypes, etc., without the express, prior and written authorization from the Service Provider, which may provide it on the condition of financial compensation. At the end of the relationship, these documents must be returned without delay by the Customer.
ARTICLE 15 – Disputes
Any disputes which may result from this contract, concerning its validity, interpretation, performance, cancellation, their consequences or aftermath, will come under the jurisdiction of the courts of STRASBOURG.
ARTICLE 16 - Applicable law - Language of the contract
By express agreement between the parties, these Terms and Conditions of Sale and the resulting transactions of purchase and sale are governed by French law. The Vienna Convention on the International Sale of Goods is excluded.
They are drafted in the French language. In the event that they are translated into one or several languages, only the French text shall prevail in any disputes.
ARTICLE 17 - Acceptance of the Customer
These Terms and Conditions of Sale are expressly approved and accepted by the Customer, which declares and acknowledges having understood them perfectly and, as such, renounces the used of any contradictory document and, notably, its own Terms and Conditions of Purchase.