1. Opposability of these general terms and conditions of sale – waiver of general terms and conditions of purchase
In accordance with Article L441-6 of the French Commercial Code, these general terms and conditions of sale are the basis for negotiations between the Supplier and the Customer, and take precedence over any general terms and conditions of purchase.
Consequently, the submission of any order by the Customer implies express and unreserved acceptance of the present terms and conditions of sale, and in particular of the reservation of ownership stipulated in article 9. The Customer hereby waives the right to invoke any contradictory document, and in particular any general terms and conditions of purchase, any clause of which contrary to the general terms and conditions of sale shall be deemed unwritten.
Any deviation from these general terms and conditions of sale can only be made by means of a specific written agreement concluded in conjunction with the communication of the customer’s commercial documents.
2. Controls
2.1 How to place an order
Orders must be made in writing. The contract is only valid subject to the Supplier’s express acceptance of the order. Acceptance of the order is made by any written means.
Any closed or open order from the Customer, following an offer from the Supplier, expressly accepted by the latter, definitively concludes the contract between the parties.
2.2 Open control
Without prejudice to the conditions defined by art. 1174 of the French Civil Code, the open order must meet the conditions mentioned below.
– It is limited in time by the agreed deadline
– It defines the product’s characteristics and price
– Minimum and maximum quantities and lead times are specified.
If the corrections made by the Customer to the forecast estimates of the overall open order schedule or delivery orders deviate by more than 15% above or below the amount of the said estimates, the Supplier will assess the consequences of these variations.
In the event of an upward or downward variation, the parties must consult each other to find a solution to the consequences of this deviation, which could alter the balance of the contract to the detriment of the Supplier.
In the event of an upward variation, the Supplier will do its utmost to satisfy the Customer’s request in quantities and timescales compatible with its capacities (production, transport, subcontracting, human, financial, etc.).
2.3 Order changes or cancellation
Any modification of the contract requested by the Customer is subject to the Supplier’s express acceptance.
2.3.1 Order cancellation
The order expresses the Customer’s irrevocable consent, and may not be cancelled or modified without the Supplier’s express prior agreement. In the event of a request for cancellation, the Supplier is entitled to require the Customer to fulfil its obligations, in particular payment of the full price. The Supplier may, however, if he agrees, ask the Customer to compensate only for costs already incurred (in particular for specific equipment, design costs, labor and supply costs, and tooling), taking into account the direct and indirect consequences of the said cancellation. In any event, the deposit already paid shall remain the property of the Supplier.
2.3.2 Contract amendment – Effects on inventories
The supplier establishes inventories (such as materials, specific tooling, work-in-progress, finished products) according to the customer’s needs and in the customer’s interest, either at the customer’s explicit request, or defined in such a way as to meet the customer’s forecast programs.
Any modification, non-fulfilment or suspension of the contract which does not allow stocks to be sold under the conditions stipulated in the contract will lead to renegotiation of the initial economic conditions, allowing the Supplier to be compensated.
3. Delivery
3.1 Delivery times
The agreed lead time is an important element which must be specified in the contract, as well as its nature (lead time for availability, lead time for presentation for acceptance, lead time for delivery, lead time for legal acceptance, etc.). The deadlines stipulated are, however, only indicative, may be called into question in the event of circumstances beyond the Supplier’s control, and may not give rise to damages in the event of delay.
3.2 Terms of delivery
Unless otherwise agreed, delivery is deemed to have taken place when the goods are made available at the Supplier’s factories or warehouses (EXW – Incoterms in force). Consequently, the risks are transferred to the Customer upon delivery, without prejudice to the Supplier’s right to invoke the benefit of the reservation of title clause or to make use of its right of retention.
In the event that the Customer has initiated transportation and assumes the cost thereof, the Customer shall bear all the financial consequences of a direct action by the carrier against the Supplier.
3.3. Product verification
In the event of shortage or damage, any claim must be made to the carrier, who is solely responsible, on the delivery receipt at the time of delivery, and confirmed by registered letter within 3 days. The Supplier will not accept any non-conformity of delivery without these reservations made by the Customer on the day of delivery.
3.4 Transport – customs – insurance
Unless otherwise agreed, all transport, insurance, customs, handling and delivery operations are at the customer’s expense and risk.
3.5 Receipt of parts
The customer is obliged to take legal receipt of the products upon delivery, thereby acknowledging their conformity with the contract. Receipt of the products without immediate reservations constitutes recognition of the conformity of the products in the absence of apparent defects.
a) The customer decides on the technical specifications which define all aspects of the parts to be manufactured, as well as the nature and methods of the inspections, controls and tests required for their acceptance.
b) In all cases, the nature and extent of the inspections and tests required, the standards and severity classes concerned, as well as tolerances of any kind, must be specified in the drawings and specifications which must be attached by the customer to its invitation to tender and confirmed in the contract agreed between the supplier and the customer.
In the event of non-conformity at the time of delivery, the Customer must comply with the terms and conditions set out in article 12.2.
4. Quality commitment (100 PPM)
Our commitment to quality is 100PPM, unless otherwise specified and confirmed in the quotation and specified in our proposal.
Our commitments are those of our suppliers for services not provided by our company.
– Raw material: 4% non-conformity tolerated by the corresponding NF standard n° NFEN 10277-01
– Heat treatment and surface treatment: in compliance with the commitment limits of the service providers concerned, as given during the consultation process, and with the product-specific contractual commitments issued by them.
Any special requests outside these conditions must be specified at the time of order.
5. Awards
Prices are quoted in Euros, exclusive of tax and “ex works”, unless otherwise specified in the contract. They are invoiced according to the terms of the contract. The price corresponds exclusively to the products and services specified in the offer.
Prices will be revised automatically on the basis of a price revision formula based on fluctuations in the raw materials index and the mechanical engineering wage index at the date of manufacture of the parts. Should the index disappear, the calculation will be based on the replacement index, using the necessary correlation coefficient. Any delay in determining the index shall not affect payments, which will be made on the due dates and will be subject to subsequent correction.
Samples submitted for approval and carried out outside the series are invoiced at cost price.
6. Unforeseen circumstances and force majeure
6.1 Contingency clause
In the event of the occurrence of an event beyond the control of the parties which compromises the balance of the contract to such an extent as to render the Supplier’s performance of its obligations prejudicial, the parties agree to negotiate a modification of the contract in good faith. In particular, the following events are covered: changes in the price of raw materials, changes in customs duties, changes in exchange rates, changes in legislation, changes in the customer’s financial situation. Should the parties fail to reach agreement within a reasonable period of time, given the economic stakes involved, the Supplier may terminate the contract by giving one month’s notice.
6.2 Force majeure
Neither party to this contract shall be held liable for its delay or failure to perform any of its obligations under the contract if such delay or failure is the direct or indirect effect of a case of force majeure in the broader sense of French case law, such as :
Occurrence of a natural disaster
Earthquake, storm, fire, flood, etc.
Armed conflict, war, terrorist attacks
Labour dispute, total or partial strike at the Supplier’s or customer’s premises
Labour dispute, total or partial strike at suppliers, service providers, transport companies, post offices, public services, etc.
Imperative injunction from public authorities (import ban, embargo)
Operating accidents, machine breakdowns, explosions at the Supplier’s premises or those of its suppliers and service providers
Each party shall inform the other party, without delay, of the occurrence of a case of force majeure of which it is aware and which, in its opinion, is likely to affect the performance of the contract.
If the duration of the impediment exceeds 10 working days, the parties must confer within 5 working days of the expiry of the 10-working-day period to examine in good faith whether the contract should be continued or terminated.
7. Quantities delivered
From a quantitative point of view, the number of products indicated on the contract is the rule. However, a certain tolerance on the number of products executed, delivered and invoiced is allowed, to be agreed between the Supplier and the Customer at the time of contract negotiation. In the absence of prior agreement, the generally accepted tolerance is +10% to -5% of the number of products stated in the contract.
In the absence of a specific agreement, when counting is carried out by weighing, particularly in the case of deliveries of large series, the actual weight of the part, determined by a representative sample, is decisive in determining the quantity.
Any dispute concerning the quantity of parts can only be taken into consideration by the Supplier if it is notified to him within a maximum of 48 hours after the products have been checked.
The customer may be required to entrust raw materials or materials for the Supplier’s services. Unless otherwise stipulated, raw materials or materials entrusted by the customer for manufacturing purposes may only give rise to reimbursement in excess of a loss of 5% of the quantity entrusted. The parties shall jointly define the terms of reimbursement.
8. Payment
8.1 Payment terms
Unless otherwise expressly agreed, payment is due on the 30th day following the date of delivery. Goods are always payable at the supplier’s domicile. Our bills of exchange or acceptance of payment do not imply any novation or derogation from this place of payment and jurisdiction.
Contractually agreed payment dates may not be unilaterally called into question by the customer for any reason whatsoever, including in the event of a dispute. Advance payments are made without discount unless otherwise agreed.
Drafts must be returned with acceptance within seven days of dispatch.
8.2 Late payment
By express agreement, and unless a deferment is requested in good time and granted by the Supplier, failure to pay for products by the due date will result in: 1) immediate payment of all outstanding sums, regardless of the method of payment used (by accepted draft or otherwise) – 2) payment by way of penalty of an indemnity equal to 15% of the sums due, in addition to legal interest and any legal costs.
In accordance with article L441-6 of the French Commercial Code, late payment penalties will be applied in the event that the sums due are paid after the payment date shown on the invoice and when payment is made after the deadline set by these general terms of sale. Any delay in payment will give rise to the application of late payment interest equal to the most recent refinancing rate of the European Central Bank plus seven points.
Pursuant to Article L441-6 al 12 of the French Commercial Code, as amended by the law of March 22, 2012, and in application of Article D-5 of the French Commercial Code, a flat-rate indemnity for collection costs of forty euros is automatically payable by the Customer from the first day of delay. If the collection costs incurred are higher, additional compensation may be requested by the Supplier upon justification.
8.3 Changes in the customer’s situation
In the event of a deterioration in the customer’s financial situation, as certified by a financial institution or evidenced by a significant delay in payment or in the return of bills of exchange, or when the financial situation differs significantly from the data provided, delivery will only be made in return for immediate payment.
In the event of late payment, the Supplier has a right of retention on manufactured products and related supplies.
In the event of the sale, assignment, pledging or incorporation by the Customer of its business, or of a significant part of its assets or equipment, the Supplier reserves the right, without notice, to:
– declare that the term of the contract has expired and that any sums still owed on any grounds whatsoever are immediately due and payable
– suspend all shipments
– to declare the termination of all current contracts and to withhold any advance payments received, tooling and parts held, until such time as compensation is determined.
8.4 Offsetting payments
In accordance with Article L442-6 I 8° of the French Commercial Code, the Customer shall refrain from any unlawful practice of automatic debiting or crediting, and from invoicing the Supplier for any sum not expressly recognized by the latter as its liability. Any automatic debit will constitute an unpaid amount and will give rise to the application of the provisions of article 8.2 concerning late payment.
However, the parties reserve the right to resort to legal or contractual offsetting of claims.
8.5 Subcontractor payment guarantee
When the contract is part of a chain of business contracts within the meaning of law no. 75-1334 of December 31, 1975, the Customer is legally obliged to have the Supplier accepted by its own principal. It is also obliged to have the Supplier’s terms of payment accepted by the latter. Failing this, the customer may not invoke the subcontract on any grounds whatsoever, including in the event of liability, although it will remain liable to the subcontractor.
9. Sale subject to retention of title
The goods covered by the order remain the entire property of the seller until full payment of the price, in principal and accessories. Nevertheless, the risks shall be borne by the purchaser from the time of delivery, as stipulated in article 3.2. Any transformation or resale of the goods must be expressly authorized by the seller.
By virtue of the present clause, failure to pay any of the instalments may result in the reclamation of the goods sold.
10. Tools
The costs incurred by the Supplier for the design, creation of tooling and manufacturing development are subject to a financial contribution from the Customer, which is invoiced separately.
Tooling designed by the Supplier and adapted to its methods and equipment remains its property and remains in its workshops.
The customer’s contribution to the cost of tooling does not give it the right to use this tooling in the Supplier’s workshops. It does not imply any transfer of material or intellectual property rights or know-how.
11. Intellectual property and confidentiality
11.1 Intellectual property and know-how of documents and products
All intellectual property rights and know-how incorporated in the documents transmitted, the products delivered and the services provided remain the exclusive property of the Supplier.
Any transfer of intellectual property rights or know-how must be the subject of a contract with the Supplier.
The Supplier reserves the right to use its know-how and the results of its own research and development work.
11.2 Confidentiality clause
The parties mutually undertake a general obligation of confidentiality concerning all oral or written information, whatever it may be and whatever the medium, exchanged within the framework of the preparation and execution of the contract, with the exception of information which is generally known to the public or which may become so through no fault of the Customer.
Consequently, the parties undertake never to disclose or communicate, in any way whatsoever, directly or indirectly, all or part of the confidential information, to anyone whatsoever, without the prior written authorization of the other party;
They also undertake not to use all or part of the confidential information for any purpose or activity other than the performance of the contract, nor to copy or imitate all or part of the confidential information.
The Customer undertakes to take all necessary measures to ensure compliance with this obligation of confidentiality, throughout the duration of the contract and even after its expiry, and undertakes to ensure that all its employees comply with this obligation. This obligation is an obligation of result.
11.3. Counterfeit warranty
The Customer warrants that, at the time the contract is concluded, the content of the plans and specifications and the conditions for their implementation do not make use of intellectual property rights or know-how held by a third party. It guarantees that it can freely dispose of them without contravening any contractual or legal obligation.
The customer guarantees the Supplier against the direct or indirect consequences of any civil or criminal liability action resulting in particular from an action for counterfeiting or unfair competition.
12. Liability
12.1 Definition of the Supplier’s liability
The Supplier’s liability is strictly limited to compliance with the Customer’s specifications stipulated in the contract.
In the event of a dimensional error or material defect, the Supplier’s liability is limited to the outright replacement of the offending goods, without compensation of any kind.
The Supplier’s liability is excluded:
– for defects in materials supplied by the Customer
– for defects resulting from a design carried out by the Customer, from imposed technical choices
– for defects resulting in whole or in part from normal wear and tear of the part, deterioration or accidents attributable to the Customer or a third party
– in the event of abnormal or atypical use or use which does not comply with the intended purpose of the product, good engineering practice or the Supplier’s recommendations.
12.2 – Limits of the Supplier’s liability
The Supplier’s liability shall be limited to direct material damage caused to the Customer resulting from faults attributable to the Supplier in the performance of the contract.
The Supplier is not obliged to compensate for the harmful consequences of faults committed by the Customer or third parties in connection with the performance of the contract.
Under no circumstances will the Supplier be liable to compensate for immaterial or indirect damages.
The Supplier’s civil liability, for all causes with the exception of bodily injury and gross negligence, is limited to a sum not exceeding the invoiced and cashed value of the defective supply.
The customer is obliged to report any non-conformity of the parts in question within a maximum period, starting from the date of delivery:
– 15 days for apparent non-conformities
– 3 months for other non-conformities, reduced to one month for series production.
Once these deadlines have expired, no claims will be accepted. If the customer does not agree with Segepo on the principle and cost of bringing parts into conformity, the warranty will lapse.
The Customer guarantees that its insurers or third parties in a contractual relationship with the Customer will waive any recourse against the Supplier or its insurers beyond the limits and exclusions set out above.
13. Jurisdiction and applicable law
The parties undertake to attempt to settle their differences amicably before bringing the matter before the competent court. In the absence of an amicable agreement, it is expressly agreed that any dispute relating to the contract shall fall within the exclusive jurisdiction of the court having jurisdiction over the Supplier’s domicile, even in the event of a warranty claim or multiple defendants.
The contract is governed solely by French law.
SEGEPO GROUP, 379 Route de Charentay, F- 69220 Saint-Lager
Tel. +33(0)4.74.66.77.00 – Email: info@segepo.com
Last update: April 18, 2018
