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1 - Generalities
The present General Conditions of Sale shall apply to all sales. The dispositions of the present conditions are the law of the parties and thus imply the entire adhesion of the customer to the present specified conditions. They prevail over any different or opposite clause appearing on documents or correspondences from EFIRACK or of the customer and in particular on the general conditions of purchase of the customer. The seller, in the current document is EFIRACK Company, the purchaser of products or services rendered by EFIRACK will be called the customer.
Any cancellation of contracts, regardless of the initiative, but brought about by the customer, will result in payment of damages in favor of EFIRACK with an amount at least equal to that mentioned in the contract.
EFIRACK reserves itself the right to make any modification or improvement that it will consider useful concerning the characteristics of its products as specified in its catalogues, brochures or specifications, without any obligation from EFIRACK to make these modifications or improvements on delivered products or products to be delivered.
No changes or request for change in orders will be accepted unless confirmed in writing by EFIRACK. Requests can be considered; however, the result is a specific renegotiation of price and delivery times.
Quotations are now only valid for 15 days from the date stipulated on the estimate. This is due to the constant hike of the price of raw materials, and the price of fuel for transport since October 2003, which has also forced us to pass on these increases to our final customers.
A price index for steel and the manufacturing thereof will be applied beyond the 15-day period according to the following formula P=Po*(ind/ind0) - See (http://www.indices.insee.fr - identification number (identifying): 0850230)
Prices can be given following customers requirements in accordance with international incoterms (EXW, FOB, CNF...). The number and the condition of products should be necessarily checked at reception by the customer. Any complaint concerning the products sold by EFIRACK should be formally lodged by registered mail.
2 - Intellectual and Artistic Property Rights
Drawings, models, plans, estimates and in general way any document delivered or sent by EFIRACK to the customer are the exclusive property of EFIRACK and consequently can be neither executed nor reproduced without the express prior and written license from EFIRACK. They will be returned immediately on simple request from EFIRACK.
3 - Retention of Title Clause
Title to the products shall not pass until the purchase price and incidental charges have been paid in full.
All goods are subject to a title retention clause until full payment of the order including accessories and any possible fees. The payment will only be considered as done upon the effective collection of the price by EFIRACK. Drafts or promissory notes are not considered as effective payment until finalized. In the event the later forms of payment are used for payment they must respect the current laws and time frames governing their use.
In case of non-payment, EFIRACK will ask for the return of the products by registered mail without foregoing any of its rights, with expenses entailed by the return of products to be paid by the customer.
Efirack shall be intitled to draw up immediately and unilaterally a list of all the unpaid products held by the customer.
4 - Delivery and Price
The products of EFIRACK always travel at the risks and the dangers of the customers, whatever the modalities of sale and transport may be. EFIRACK 's liability is automatically released from the delivery of the products in its stores, whatever the conditions of freight and the payment related to it may be. No exceptions will be made even if EFIRACK agrees to hand over goods in other ways (at the customer site, by train, etc) or promises to pay back all or a portion of the transport costs. The later possibilities are to be considered as being only price concessions and in no way a transfer of responsibility.
Any delivery is considered made in the business premises of EFIRACK. The delivery is considered as made either by removal from the customer, or by simple notice of disposal, or by delivery of products in EFIRACK's stores or factories to a sender or a carrier.
All orders come with the provision that in the event of price changes or sales conditions changes these can be applied up to the final delivery date with the customer maintaining the possibility of canceling the undelivered portion of the order including modified price or sales conditions.
Delivery times, when mentioned, are given as indications and not as absolute times. Delays in deliveries do in no way entitle customers to any compensation whatsoever. EFIRACK shall never be considered as liable for the delays resulting, from other companies, in case of force majeure, of delay in the supply by the customer of information or instructions necessary for the manufacturing of the ordered products.
The products of EFIRACK always travel at the risks and the dangers of the customers, whatever the modalities of sale and transport may be. The number and the condition of products should be necessarily checked at reception by the customer. Any complaint concerning the products sold by EFIRACK should be formally lodged by registered mail in 8 days period from the date of reception of products by the customer or any third party appointed by it. After this period the products will be irrevocably considered as corresponding to what had been ordered and no further complaint shall be accepted by EFIRACK.
When EFIRACK accepts returns of goods, they must be sent back carriage paid within a week from the date stipulated on the agreement signed by EFIRACK. Goods will only be accepted if returned in their original packaging in the state in which they were supplied. However, if no defects are certified upon inspection of the returned goods, the refund of the goods will be limited to 80% of the initial invoiced price.
EFIRACK's warranty shall be excluded for deliveries for the following reasons :
- force majeure or incidents such as lock-outs, strikes, epidemics, wars, requistions, fires, natural catastrophes, accident or breakdown in essential machinery or equipment, general transport delays, or any other case liable to interrupt production and deliveries at EFIRACK
- when necessary information from customers does not arrive in due time, or in the event of new specifications or modifications.
5 - Payment terms
Payments are made to our sales office in Euros and according to the following conditions :
a) Cash upon collection of the goods or upon delivery for a first order unless otherwise agreed.
b) 45 days end of the month by sight draft without discount, without the presentation of the sight draft at the address of the acquirer constituting an exception to the address stipulated in the present contract.
If full payment is not made on the date it is due, we have the right to send the customer a default notice by registered mail and, if there is no reply within 8 days, the entire outstanding balance on the account must be paid immediately. Any late scheduled payments will result in the payment of interest penalties, without any prior default notice, according to the applicable law and the customer will be indebted for an amount equal to one and a half the French legal interest current rate at the date of payment. The payment of this penalty in no way removes the payability. In case of sale, transfer, merger or acquisition of the business or its plant by the customer, the sums remaining due to EFIRACK will become immediately due for payment. Furthermore, in the event of non-payment of an invoice, EFIRACK can cancel the current contract and in this case, besides returning the goods, the customer will also have to pay a fixed penalty or cancellation fee equal to 10 % of the amount of the due sums.
Finally, in case of risk of insolvency of the customer, EFIRACK reserves itself the right to demand warranties of payment, either before the acceptance of the order, or between the date of the acceptance and the delivery date. If the customer does not give the warranties of payment, EFIRACK can refuse in the first case the orders and in the second case, suspend or cancel this one.
In all of the above-mentioned cases EFIRACK reserves itself the right to require the customer to allow EFIRACK to sell its delivered goods in their possession to another customer.
The minimum amount for invoicing is 150 €. Any orders under 100€ an extra charge of 35€ will be charged for administration fees.
6 - Transportation - Customs - Insurance
The customer shall bear the expense of all transport, insurance and customs operations. It is also the customer's responsibility to check the condition of the goods upon reception and, if need be, lodge a complaint against the carrier in case of any incident involving the goods during the transit.
7 -Warranties
EFIRACK warrants its products against any defect of material, manufacture or conception fault within the following limits. Unless otherwise indicated the customer acknowledges that the products ordered correspond to its need and use. It falls to the customer to make the products fit the intended use.
EFIRACK's warranty shall be excluded in case of : faults resulting from the material supplied by the customer, from the conception imposed by the customer ; incidents resulting, from force majeure, from deterioration resulting from the normal wear of products, from a deterioration due to, a lack of maintenance or supervision or from the carelessness of the customer, from deterioration due to an installation or a purpose for which the product has not been conceived, modification realized on products by the customer without prior license of EFIRACK.
8 - Duration and application of above-defined warranties
This warranty, unless otherwise indicated, only applies to defects which appear during the first year (the warranty period). This period begins on the day the customer receives the notice that the goods are available for collection. If the shipment of the goods is postponed, the warranty is extended until the end of the postponement. However, this extension shall not exceed 9 months. Replacement parts and remanufactured parts are guaranteed according to the same terms and conditions as the original equipment for the same period of time as the one mentioned previously. This clause does not apply to other parts of the equipment.
9 -Customer Obligations
If the customer considers that the delivered products are affected by any defect or fault, in order to be able to benefit from the warranty, he should inform without any delay in writing stating the defects or faults of the products and supplying any document to prove their reality. The customer should allow EFIRACK to notice the defects or faults to be able remedy them. The customer shall not, except prior and written agreement of EFIRACK, proceed either itself, or by a third party, to any kind of reparation on product presumed defective. Any infringement to this disposition will entail ipso facto the break of the warranty.
10 - Seller's compliance with warranty
Once informed, EFIRACK shall go about remedying the acknowledged defects at its own cost with utmost urgency, with the possibility of modifying parts to make them satisfactory and in compliance
Repair work done as a part of the warranty is normally carried out on the premises of EFIRACK after receiving the equipment or defective parts from the customer. The customer shall bear the expense for the transportation of these defective goods and the travel expenses occurred by technicians sent to the customer's premises for onsite repairs. The defective parts are to be handed over to EFIRACK and become its property once again.
11 - Indemnification
EFIRACK's responsibility shall be limited to the terms directly expressed in this contract. In the event that Customer and/or any third party(s) sustains any manner of liability and/or damages in connection with or otherwise arising out of the use of EFIRACK products, EFIRACK shall have no responsibility or liability therefore to Customer or to any third party for compensation of any kind.
12 -Contracts work
Regarding all special customized contract, EFIRACK exclusively guarantees production conforming to the sizes, tolerances and specifications supplied to us. If we are required to supply the materials, in the event of substandard or defective parts we are only required to replace these free of charge, with no possibility to claim damages or compensation from us.
When the material or parts are supplied by the client, in the event of substandard production which does not result from a defect inherent to these, we are committed to either issuing a credit note corresponding to the contract price for the rejected parts or to repeating the work with the aid of the materials or parts required, provided to us by the client, at the client's choice. Unless the contract expressly provides for this, we will only be considered liable for the loss or deterioration of the materials or parts conferred upon us if it is shown that serious failings occurred with regard to the habitual standards of prudence and diligence normally required for work of this nature.
13 - Technical Assistance
Any technical assistance offered by EFIRACK is done so as a part of specific contracts made out to that effect.
14 - Arbitration and Applicable Right
Any and all disputes, controversies or differences which may arise out of or in relation to these general conditions of sale shall be resolved by the Commercial Court of EVRY (FRANCE). The present general sales conditions shall be enforced under FRENCH laws. |
