ARTICLE / 1 PURPOSE AND SCOPE
1.1. The purpose of the present document is to establish the general terms and conditions governing the sales and design work carried out by Celec on behalf of its buyers. The term «Celec» means Celec France and Ningbo Celec.
1.2. In the absence of a special written agreement to the contrary, the acceptance of any offer originating from Celec automatically entails acceptance by the buyer of the present general sales terms and conditions, all of which are binding and decisive in determining Celec’s commitment.
1.3 They alone shall govern the sales and study work made by Celec, and shall prevail, in case of conflict, over any other terms and conditions appearing in the buyer’s commercial documents, and in particular in its general purchasing terms and conditions.
1.4. Any special terms and conditions or specific agreements signed and accepted by Celec shall prevail upon the present general sales terms and conditions in the event of conflict.
1.5. Seller and buyer undertake to fulfil the present general sales terms and conditions in good faith pursuant to article 1104 of the French civil Code, public policy provision.
ARTICLE 2 / CONCLUSION OF THE SALES CONTRACT
2.1. The buyer’s request is subject to an offer (or estimate) the terms and conditions of which are determined in accordance with the products ordered, the amounts ordered, and the agreed delivery schedule.
2.2 The contract between Celec and the buyer is not considered to exist until Celec’s offer (or estimate) has been accepted by the buyer. Celec must be informed of the said acceptance before the end of the period of validity indicated in the offer (or estimate). In the event that the offer (or estimate) does not explicitly specify a period of validity, the latter shall be considered equal to thirty (30) days.
2.3. The said notification is constituted by Celec’s receipt or by one copy of the offer (or estimate) signed by the buyer.
2.4. Once the offer has been accepted, the customer’s order is firm and final. In particular, in the event of an open order, i.e., an order bearing on a specific overall amount of products delivery of which is to be staggered over a specific period, the requests for delivery having to bear on minimum amounts of products, acceptance of Celec’s offer (or estimate) is tantamount to a commitment by the buyer to issue requests for deliveries under the terms and conditions indicated in the offer, and in particular, if appropriate, to respect the scheduled delivery and minimum quantities of requests for delivery indicated in the offer.
The orders may not be cancelled, and the failure to comply with their terms will be considered as wrongful termination, with all of the consequences attached thereto.
2.5. Any change or new request not explicitly provided for in the initial offer must be agreed between Celec and the buyer by means of a separate offer accepted by the buyer.
ARTICLE 3 / PENALTY CLAUSE
If the buyer fails to respect the terms of the order, and in particular, the minimum quantities of products ordered for an open order, the buyer shall be required to pay an indemnity equal to the price of the order excluding taxes, this without prejudice to any damages to Celec’s benefit.
ARTICLE 4 / PRICE
4.1.1. The applicable price is the one appearing in the offer (or estimate) accepted by the buyer, and all additional duties and taxes are to be understood as being borne by the buyer.
4.1.2. The prices exclude import duties, customs expenses, shipping and insurance costs, and any other taxes or duties, as well as any exceptional and/or temporary charge that might be made by the administration of the country concerned upon importation, or by the administrations of the tran- sit countries The said expenses, taxes or duties shall be incumbent upon the buyer.
4.1.3. In the absence of a stipulation to the contrary in the offer (or estimate), the prices indicated therein do not include the packing and carriage expenses, which shall be borne by the buyer.
In the event that unforeseen circumstances render the execution of the sale contract excessively costly for Celec, it will be able to ask the buyer for a renegotiation of the contract, subject to Celec justifying the request.
If circumstances render continuation impossible, the contract shall be suspended for one month, during which the parties shall seek a fair adaptation of the contract, in good faith.
In the event of non-agreement, the contract shall be resolved without appealing to the Judge.
All this with the exclusion of all other provisions pursuant to article 1195 of the French civil Code which are ruled out by the present terms and conditions.
ARTICLE 5 / OWNERSHIP
5.1. Ownership of production and tooling
5.1.1. Celec is the owner of the design work, drawings, drafts, and other technical documents produced as part of the contract, which constitute information covered by business secrecy.
5.1.2. If they are delivered to the buyer by Celec, these documents may not be used by the purchaser, be copied, be reproduced, be transmitted or be communicated to any third parties, in any connection or in any way whatsoever, without Celec’s written authorisation.
5.1.3. In the absence of a mention to the contrary in the offer, an order for a specific product does not grant any exclusivity to the buyer with respect to the product ordered, which can be offered and sold freely by Celec to its customers.
5.1.4. In the absence of any indication to the contrary in the offer, Celec shall remain the owner of the tooling and moulds required for manufacture and use of the specific products that are developed, whatever contribution may be made by the buyer to the purchasing expenses or the expenses for production of the said tooling or moulds.
5.2 Intellectual Property
5.2.1. Celec also holds all of the intellectual property rights relative to the products, know-how, and the work and the design studies that it has carried out.
5.2.2. The term «intellectual property rights» in the meaning of the present general sales terms and conditions means any invention, any patent and patent application, trademarks, whatever stage may have been reached in registering them, the designs and models, published or unpublished, the moulds, the copyrights, the software, or any other intellectual property right, whatever the geographical scope of protection may be.
5.2.3. The purchase of specific products, of design work or of services by the buyer does not confer any intellectual or industrial property rights on it, and in particular the right to have the products manufactured by a third party.
ARTICLE 6 / PRODUCT MODIFICATION
6.1. Celec reserves the right to replace all or part of its products with pro- ducts having equivalent or superior guaranteed performance levels, even if they are obtained by different means, without Celec being required to inform the buyer of this fact.
6.2. Celec also reserves the right to make technical changes in the products to be delivered, as long as such changes do not entail any deterioration of quality for the buyer.
ARTICLE 7 / DELIVERY
7.1. Delivery terms and conditions
7.1.1. In the absence of any indication to the contrary in the special terms and conditions of the contract, delivery always takes place at our factories, in accordance with article 7.5.3.
7.1.2. Celec informs the buyer of the availability of the equipment or of the product(s).
7.1.3. Delivery takes place in exchange for signature of a delivery order by the buyer. It consists of handing over the equipment or product(s) either to the buyer, or to a transporter designated by it.
7.1.4. If the buyer does not take delivery of the equipment or of the pro- duct within the periods set forth in the availability notice, Celec may keep it on its premises at the buyer’s expenses and risk for a maximum period of seven (7) days.
7.1.5. If, at the end of the said period, the buyer has not made the collection, Celec reserves the right either to dispose of the equipment or product(s), or to deliver them to the buyer at the latter’s expenses and risk.
7.1.6. In the event of shipment by Celec, the shipment is made on a carriage due basis, at the lowest possible rates, in the absence of a specific request by the buyer, and in any event this will be done on the latter’s entire responsibility.
7.2. Transfer of risks
7.2.1. From the time of delivery of the equipment or the product as defined in Article 6 and until transfer of ownership, the buyer is entirely responsible for custody thereof and for replacing it in the event of loss or of partial or total destruction. It must insure it at its own expense, for its market value, to the benefit of Celec until the time of transfer of ownership, and it undertakes to produce the corresponding insurance certificates. If it does not meet these obligations, Celec reserves the right to insure the equipment or the product at the buyer’s expenses
7.2.2. The principle of factory delivery and of transfer of the risk cannot be made subject to any exceptions by indications such as: delivery carriage paid to the station, to the dock, to the domicile, reimbursement for total or partial transport expenses, etc., which may be considered only as a concession with respect to the prices without any transfer of liability.
7.3. Transfer of ownership
7.3.1. It is explicitly agreed as an essential condition, failing which the sale would not have been concluded, that the transfer of ownership of the equipment or of the product sold is conditional on payment in totality of the prices, related expenses and duties. Until full payment by the buyer of the price, the seller reserves ownership on the equipment or product sold, pursuant to article 2367 of the French civil Code.
7.3.2. Until transfer of ownership, at Celec’s request the buyer must return the equipment or the product and deliver it immediately at its own expenses and without any other formalities to Celec’s premises. The amounts already paid by the buyer shall remain Celec’s property.
7.3.3. For application of the present clause, the identification of the equip- ment or of the products sold results from all documents issued by Celec, such as invoices, statements, delivery slips or letters. Celec reserves the right to install, or to have the buyer install, plaques on the said equipment or the said product or any other identification means of its choice.
7.4.1. Celec prepares packing that is appropriate to the normal risks of trans- port, and the merchandise is packed under what are called normal conditions (temperature, pressure, etc.).
7.4.2. The packing is not taken back by Celec, with the exception of advance and written agreement.
7.4.3. The packing expenses are incumbent upon the buyer.
7.5. Shipping – Insurance
7.5.1. All operations relative to packing, shipment and insurance are to be borne by and at the expense and risk of the buyer, which must verify the deliveries upon arrival and, if appropriate, file complaints against the transporters, notwithstanding the provisions relative to reserve of ownership indicated in Article 7.3.
7.5.2. In the event of deliveries outside France, the forwarding agent’s expenses are to be borne by the buyers.
7.5.3. In the absence of different stipulations appearing in the contract, the INCOTERM used for all shipping procedures (sea, road, rail, air) is EX WORKS (EXW) Incoterms of the International Chamber of Commerce, 2010.
ARTICLE 8 / DELIVERY PERIODS
8.1. The delivery periods are calculated beginning with the date of signature of the contract by the parties or of the requests for deliveries in the event of an open order, with the exception of special provisions in the offer. However, the beginning of the periods is delayed until the day of collection of the deposit or of the full payment of the price provided for in the offer, if they occur after its acceptance.
8.2. The delivery periods are indicated only as an indication, and a delivery delay cannot justify cancellation of the order.
8.3. In any event, Celec’s commitments with respect to the periods are to be understood as being subject to observance by the buyer of its own obligations, particularly as concerns the supply in good time of all documents, information or products required for contract performance.
8.4. In the event of an occurrence, whether or not it is considered as force majeure or an act of God, which prevents Celec from performing its obligations under normal terms and conditions, the performance periods provided for in the contract shall be extended by the duration of the said events and of their consequences. However, if, as a consequence of such an event, contract performance becomes impossible within a reasonable period, each of the parties may release itself from its obligations by registered letter with receipt, entailing rescission of the contract as of right, without any legal formalities or indemnities.
ARTICLE 9 / PAYMENT TERMS AND CONDITIONS
9.1. Celec’s offer (or estimate) determines the invoicing schedule. Failing that, the amount shall be invoiced at the time of the order or, in the event of an open order, at the time of each request for delivery.
9.2 The invoices determine the terms and conditions regarding settlement thereof. Failing that, the invoices are payable upon receipt, at Celec’s registered office.
ARTICLE 10 / LATE PAYMENT
10.1. In the event of late payment, Celec may suspend performance of the order in question without being held responsible, in any connection whatsoever, for the resulting delay in performance of the contract.
10.2. Furthermore in the event of late payment, Celec reserves the right not to perform the services incumbent upon it by virtue of any other contracts concluded with the buyer until the overdue payment is made, or to pronounce rescission of the contract under the condition indicated in Article 14.
10.3. The interest rate for late penalties is fixed at 10% + the ECB rate for refinancing, pursuant to article L441.6 of the French commerce Code, from the day following the payment date stipulated on the invoice, as well as the Euros 40.00 indemnity for recovery costs.
ARTICLE 11 / WARRANTY
11.1. Term – Warranty beginning
11.1.1. The term of the warranty shall be the one stipulated in Celec’s offer. In the absence of a stipulation in the offer concerning the term of a warranty, the warranty period applies only to the shortcomings appearing during a period of 6 months (hereinafter the Warranty Period).11.1.2. The Warranty Period begins on the day of delivery in the meaning of Article 7.1.3.
11.1.3. If, during the Warranty Period, the buyer fails to pay one or several instalments to Celec, the latter shall be released from any obligations during the warranty period, this until complete settlement of the amounts due, without the said suspension having the effect of extending the Warranty Period beyond the stipulated date.
11.2. Scope of the warranty
11.2.1. Celec undertakes to remedy any operational shortcoming resulting from a flaw in the design of manufacturing of the products within the limits of the following provisions, subject to the buyer’s proving the existence of the said shortcomings.
11.2.2. The tooling and other accessories not made by Celec that may equip its articles are not covered by the warranty in any case, but only by whatever warranty may be offered by the supplier or the manufacturer.
11.2.3. The warranty does not apply in the case of defects resulting either from the materials provided by the buyer or from a design imposed by the latter, or from a modification made by it, or else when the purchaser has replaced all or part of the products supplied by Celec with parts having another origin.
11.2.4. Celec may not be held liable for shortcomings originating from the information provided by the buyer.
11.2.5. Any type of warranty is also excluded in connection with incidents due to acts of God or events of force majeure, as well as with respect to replacements or repairs resulting from normal wear and tear on the equipment, from deterioration or from accidents resulting from negligence, lack of supervision or of maintenance, and from improper use of such equipment.
11.2.6. Celec’s liability is strictly limited to the obligation to correct or replace parts acknowledged as defective without charge, without it being subject to any indemnity for any reason whatsoever.
11.3. Buyer’s obligations
11.3.1. To be able to call on the benefit of these provisions, the buyer must inform Celec, without delay and in writing, about the shortcomings attributed to the equipment, and it must provide all supporting documentation concerning the reality thereof. It must enable Celec to establish the existence of the said shortcomings and to be in a position to remedy them. It must also refrain, in the absence of explicit approval by the seller, from making the repair itself or having it made by a third party.
11.3.2. The buyer undertakes to cease any use of the equipment as soon as an operating shortcoming is noted.
11.3.3. Celec reserves the right to require the buyer to provide it with all evidence as to justify and explain the use made of the product or of the equipment said to be defective. A refusal by the buyer to communicate such information or communication of insufficient information shall automatically deprive the buyer of any right to the warranty.
11.3.4. The benefit of the warranty is granted personally to the buyer, and may not be assigned by it without our company’s advance and written consent.
11.4. Procedures regarding application of the warranty
11.4.1. The work resulting from the warranty obligation is performed, in principle, in Celec’s workshops, after the buyer has returned the equipment or the defective parts to it for purposes of repair or replacement.
11.4.2. The cost of shipment of the equipment or of the defective parts as well as of the return of the equipment or of the repaired or replaced parts is to be borne by the buyer.
11.4.3. The parts replaced for free must be made available to Celec and again become its property.
ARTICLE 12 / CONFIDENTIALITY
12.1. The buyer undertakes to maintain confidentiality concerning all information that implementation and performance of the contract has enabled it to obtain concerning Celec and its activity confidential.
12.2. The buyer may not in any way bring to the attention of third parties, directly or indirectly, the lessons that it may have been able to drawn from performance of the contract and the knowhow relative thereto. Any exception to the present stipulation requires Celec’s advance and written approval.
12.3. The confidentiality obligations shall remain in effect after expiration of termination of the contract.
ARTICLE 13 / INTERPRETATION – WAIVER – LIMITATION PERIOD
13.1. The order may be modified only by means of a written rider duly concluded as entailing a modification of the order.
13.2. Any acceptance by Celec of a departure from the offer accepted by the buyer, and in particular concerning requests for delivery with respect to quantities less than the scheduled minimum quantities, shall be exceptional. Hence such acceptance may not be considered a rider to or a modification of the offer initially accepted by the buyer, the latter alone remaining applicable between the parties.
13.3. Any waiver, whatever the term thereof may be, of a call on the existence or any total or partial violation of any one whatsoever of the clauses of the general terms and conditions shall not constitute a modification or suppression of the said clause or a waiver of the right to call on prior, concomitant or subsequent violations of the same or of other clauses.
13.4. All legal proceedings connected with the sales become time-barred one year after the delivery.
ARTICLE 14 / RESCISSION
The sale contract shall be terminated as of right in the event of non-performance by the buyer of any one whatsoever of its obligations as stipulated in the present general terms and conditions or in the offer, this by registered letter with acknowledgement of receipt thirty (30) calendar days following formal notice served by registered letter with receipt addressed to the buyer and producing no or only a partial effect during the said period, this subject to any damages.
Notwithstanding the provisions of articles 1217 and 1219 to 1223 of the French civil Code and except for serious failure by Celec to meet its obligations, the buyer shall not suspend, refuse to execute its obligations, pursue performance in kind, enforce the order, or ask for a reduction in price.
ARTICLE 15 / APPLICABLE LAW – ASSIGNMENT OF JURISDICTION – LANGUAGE
15.1. The law applicable to the sale contract is French law.
15.2. In the absence of amicable agreement between the buyer and Celec with respect to any dispute concerning the validity, interpretation, performance or cessation of the sale contract, and more generally in connection with any facts and actions that are the result and the consequence thereof, jurisdiction is explicitly assigned to the Commercial Court of Rouen notwithstanding the existence of several refinements or of third party notice.
15.3. However, before referring to the court having jurisdiction, and not in the event of an emergency, any dispute would be subject to mediation in accordance with the Mediation Regulation of the CMAP (the Centre for Mediation and Arbitration of Paris) to which the parties declare adherence.
15.4. The present document is a translation of the general sales condition into English. In the event of a contradiction between the general sales terms and conditions in the French language and the ones in the English language, the French version shall prevail and be relied upon.