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General conditions of sales
These general conditions of sales hereby define the rights and obligations of the parties with respect to their contractual relationship and apply to the commercial proposal to which they are attached (the“’Proposal”), issued by ALYNOX (herein the « Supplier ») to its customer (herein the « Customer»), for the procurement of the products proposed for sale by the Supplier (herein the « Products »).
They are disclosed to any customer upon request. According to the applicable regulations, the Supplier hereby reserves the right to diverge from any provision following the negotiations with the customer and to agree on specific conditions of sales.
2. Purchase Order
The purchase order shall at least mention the following information: the reference to the applicable Proposal and the reserves, if any, made by the Customer on these general conditions. The Supplier shall acknowledge receipt of the purchase order and mention its reserves, if any, on the purchase order.
The Supplier hereby declares that unless he expressly agrees on the contrary (i) the absence of reverse on the purchase order shall not result from his lack of action or silence , (ii) the unilateral application of his general purchasing conditions by the Customer shall not constitute a reservation on these general conditions of sales, (iii) he hereby refuses any provision according to which the general purchasing conditions of the Customer shall supersede these general conditions of sales, and (iii) he hereby refuses any clause from the Customer according to which the Supplier is deemed to accept the rejection of these general conditions of sales or the application of the general purchasing conditions of the Customer.
In case of ambiguity, inconsistency or contradiction between the provisions of the Proposal, the purchase order and any reservation made by either the Customer or the Supplier, these later shall negotiate and manage to find an explicit agreement, within lead times compatible with the purpose of the purchase order.
The sale contract concluded between the Customer and the Supplier (the “Contract”) shall be final and binding on the parties only after agreement is reached on its on the provisions.
3. Delivery, transfer of risks and ownership
The Products shall be delivered at the Supplier’s premises « Ex Works », according to ICC Incoterms 2010.
The delivery lead times shall be calculated from the acceptance of the purchase order by the Supplier without any reserve, or in case the Supplier and the Customer fail to reach an agreement on the terms of the Contract, subject to the fulfillment of the conditions precedent agreed by the parties (such as but not limited to payment of the down payment, agreement on the detailed technical specifications, authorization from any third party, etc.). The delivery lead times are not mandatory lead times and the Supplier will not be liable for any delay below fifteen (15) working days.
The delay in delivery shall not entitle the Customer to cancel or withdraw whole or part of the purchase order. Upon prior information of the Customer, the Supplier shall be entitled to proceed with any partial or anticipated delivery. The Customer shall timely inform the Supplier of any event that may adversely affect the proper performance of the Contract. If the Customer fails to comply with his obligations within the requested lead times (such as but not limited to delay in payment, failure to disclose any information or document), the Supplier’s delivery lead times shall be automatically postponed according to the Customer’s delay, the Customer remaining solely liable for all consequences of its delay, whether or not they are borne by the Supplier.
The transfer of risks, losses or damages on the Products to the Customer shall take place upon delivery. However, the Supplier shall keep, until full payment is made by the Customer, the right of ownership over the Products, allowing him to take the Products back wherever they are. The Supplier shall keep any payment previously made by the Customer, without prejudice to any other claim of the Supplier against the Customer. As a consequence, the Customer shall subscribe an adequate ad hoc insurance policy covering the Products until the transfer of ownership takes place, to be justified to the Supplier upon delivery of the Products. This latter shall be entitled to delay any delivery in case the Customer fails to bring such justification.
4. Acceptance of the Products
Upon delivery of the Products, the Customer shall check their compliance in terms of quantity and quality. In case no express reserve is made in writing within two (2) working days after delivery, the Products shall be deemed fully compliant and accepted by the Customer without any reserve.
The technical specifications of the Products (functionalities, limitations, standards, operating, etc.) shall be those mentioned by the Supplier in the Proposal. No evolution or modification to those technical specifications afterwards shall entitle the Customer to ask for any modification or change to all or part of the Products sold. The Supplier reserves the right to carry on any modification of the technical specifications of the Products without any prior information.
5. Price, invoicing and payment terms
The prices mentioned in the Contract are firm, fixed and definitive. They shall remain in force for the entire duration of the Proposal, or unless otherwise mentioned, for a time period of one (1) month from the date of disclosure to the Customer. They include all fees and charges, such as but not limited to selling general and administrative fees which are needed to deliver the Products in compliance with the Contract. They do not include any fees or costs for transport, insurance, packaging and customs that shall be charged in addition. Any transport or delivery carried on the Supplier in addition to the delivery defined in Article 3 herein shall be made at the Customer’s costs (packaging, transport and insurance) and at his own risks.
In case the Customer cancels whole or part of a purchase order after it has been accepted by the Supplier, for any reason whatsoever, the down payment paid to the Supplier, if any, shall be kept by the Supplier and shall not be reimbursed. In case there is no down payment, the Supplier shall receive a lump sum of five percent (5%) of the amount cancelled as a definitive indemnification of his damages.
The Supplier shall send its invoices in duplicate to the Customer who shall pay within thirty (30) days from the date of invoice, by check or wire bank transfer, according to the information given by the Supplier.
In case the Customer’s payment is late, the down payment made to the Supplier, if any, shall automatically remain with the Supplier and late payment penalties, at the rate of five (5) times the mandatory interest rate (“taux d’intérêt legal”), calculated per day of delay and on the value of the delayed payments, shall be automatically paid to the Supplier and upon simple notification, without prejudice to any other action the Supplier might have against the Customer. In addition, the Supplier reserves the right to suspend or cancel the delivery of whole or part of any other purchase order that is contractually or economically linked to the purchase order which payment is delayed and to reduce or cancel any price reduction granted to the Customer, if any.
The Supplier warrants the Products for a twelve (12) months time period from their date of delivery, including the non-compliance with the Contract and any hidden defect (“vice caché”), as a consequence of any defect in raw material, design or workmanship of the Products. The warranty shall be limited, at the Supplier’s sole option, to the repair, replacement or reimbursement of the defective Products, to the exclusion of any non-defective part of the Products. This warranty is excluded in case of inappropriate use, negligence or failure to maintain the Products, such as in case of fair wear and tear of the Products or in case of a force majeure event. The Customer shall loose all rights and benefits under these provisions in case he fails to inform the Supplier of any warranty claim within five (5) working days after the defect arises. The Products repaired or delivered as replacement of defective Products shall only be subject to the remaining warranty period of the Products that is repaired or they replace. Parts, accessories, sub-assemblies, consumables or fast wear and tear parts shall not be covered by this warranty.
7. Liability and insurance
The Supplier’s liability is strictly limited to the Products delivered to the Customer. The Supplier shall not be liable (i) for what is supplied by or handed over by the Customer or any third party imposed by the Customer or that the Supplier was not able to select or validate freely, according to its procurement processes, including any material, documentation, information, specification or any part, equipment or sub-assemblies, (ii) for any direct or indirect consequence, for the Customer or any third party, of any shortfall of what was supplied or handed over. The Customer shall be solely liable, indemnify and hold the Supplier harmless from any damage, cost and fee incurred because of what the Customer or any third party recommended or imposed by the Customer had supplied or handed over to the Supplier.
The Supplier shall not be liable for any special, indirect, consequential or incidental damages, such as, but not limited to, loss of profits, loss of opportunities, loss of data, loss of privacy, loss of revenues or damages arising from loss of use, howsoever arising under or in connection with the bad performance or non performance of the Contract. Supplier’s total cumulative liability from any cause whatsoever, whether based on breach of contract or in tort (including without limitation negligence, strict liability, product liability or otherwise, and any other indemnification due to the Purchaser under the Contract) under any warranty, or otherwise, shall, in no event, exceed fifteen percent (50%) of the total amount of the Contract.
8. Secrecy and ownership
The information contained in the Proposal are disclosed in confidence and the Customer is hereby expressly aware of their confidential nature. Therefore, the Client shall (i) keep confidential the information hereby disclosed in the appropriate manner in order to prevent their disclosure to any third party; (ii) take any appropriate measure to ensure that these information are used only for the submission of the Proposal and the ensuing negotiations between the Supplier and the Customer (the “Purpose”); (iii) disclose the information only to the members of its personnel having a clear need to know for the Purpose (the “Personnel”), and (iv) make sure that the Personnel are duly informed that the information received must be treated as confidential. This obligation shall be binding on the Customer for the entire validity of the Proposal and for a time period of five (5) years after its expiration.
Any document, map, description, memo, etc. supplied by the Supplier as part of the Proposal or as part of the performance of the Contract shall remain the entire property of the Supplier, who shall only grant to the Customer a non exclusive licence to use them as part of the Contract. The Customer shall not use such information for any other purpose than for the performance of the Contract, including but not limited to manufacture, have manufactured, to copy, to reproduce, etc. all or part of the Products or of the Supplier’s know-how.
In case of any breach by the Supplier of any of its obligation under the Contract, that is not remedied within a fifteen (15) days time period from the occurrence of the said breach, the Customer shall be entitled to terminate all or part of the Contract by rights and without any formality, without prejudice to any further claim for indemnification against the Supplier.
Any waiver, whether express or implied, by any of the Parties in case of a breach by the other, shall not operate as a waiver for that particular breach or for any future breach of the same or of a different character. The Contract represents the complete and final understanding and agreement between the Customer and the Supplier with respect to the subject matter hereof and supersedes all other negotiations, understandings and representations (if any) made by or between them.
11. Applicable law and dispute resolution
The Contract shall be subject to the laws of France, excluding its conflict of law provisions and any provisions related to the Convention of Vienna on Contracts for the International Sale of Goods. Any dispute arising out or relating to its existence, validity, interpretation, execution or termination shall be exclusively submitted to the commercial tribunal (“tribunal de commerce”) of Saint Nazaire.