These general terms are governed by sales’ law when applied to the supply of standard products, or products for which the features are determined by the Supplier beforehand. They are also governed by legislation relating to work contracts when they apply to the manufacturing of a product based on specifications or to the furnishing of a service. They comply with contract law and competition law rules and have been filed with the Practices’ Office (Bureau des Usages) at the Registry of the Paris Commercial Court (Greffe du Tribunal de Commerce de Paris).
I – GENERALITIES
In accordance with Article L441-6 of the French Commercial Code, the Supplier’s general terms represent the basis for sales negotiations. The Supplier may not waive entitlement to invoke such terms in advance. All departure from these general terms shall be subject to the Supplier’s written acceptance which refers explicitly hereto. Unless there is an express agreement to the contrary, a departure from these general terms shall only be valid in respect of the contract for which it has been requested and accepted. Should the Supplier fail to invoke any of the clauses of the general terms at a given time, this shall not be construed as representing its waiver of entitlement to invoke such clause later. Similarly, the fact that one of the clauses of these general terms may be null and void shall not affect the validity of the other clauses. The Supplier reserves the right to modify the general terms subject to notifying the Customer two months prior to their effective application date.II – ORDERS – CONTRACTUAL DOCUMENTS
II – 1 The contractual documents
The following are part of the contract, in descending order of priority:- – the special terms agreed to by the Parties,
- – these general terms,
- – the Suppliers’ documents which supplement these general terms,
- – the acknowledgement of receipt of the order issued by the Supplier,
- – the Customer’s order and, possibly, its specifications and terms of acceptance,
- – the delivery slip,
- – the invoice.
II – 2 Orders
a) Orders
Orders shall be established in writing. The contract is only formed subject to the Supplier’s express acceptance of the order. The order shall be accepted by any written means. Orders given to the Supplier’s agents or representatives, or taken by the latter, and those sent directly to the Supplier’s offices, shall only be binding upon the latter once it has accepted such in writing.b) Cancellation or modification of orders
The order irrevocably expresses the Customer’s agreement. Consequently, it may not cancel it, unless the Supplier has provided its express agreement beforehand. In this case, the Customer shall compensate the Supplier for all the direct or indirect consequences arising therefrom and particularly for the expenses incurred in respect of specific equipment, study expenses, labor and procurement expenditure. In all cases, on-account payments which have already been made shall be definitively acquired by the Supplier. The changes and additions to the order, in particular as regards delivery lead-times, volumes, or the products themselves, shall be referred to the Supplier for its express agreement, and the latter shall advise the Customer of the conditions and consequences as regards the terms of sale.III – STUDIES – PROJECTS – SPECIFICATIONS
III – 1 Studies and projects
The projects, studies and documents of any nature provided or sent by the Supplier shall always remain its entire property, and the Customer hereby recognizes the Supplier’s industrial and intellectual property rights in respect of the latter. They shall be returned to it at its first request. They may not be either disclosed or used without its prior, written authorization. Generally, any and all reproduction or representation, even if such is only partial, using any process whatsoever, of any document belonging to the Supplier, which is carried-out without its written authorization, shall be illegal and shall represent either infringement or unfair competition. Any transfer of intellectual property rights shall be subject to a separate contract between the Supplier and the Customer. Should studies, conducted at the Customer’s request, or documents provided to the latter, not be followed by orders for products, the expenses which may have been incurred shall be invoiced to it and the documents shall be returned.III – 2 Confidentiality
The Parties reciprocally commit themselves to a general non-disclosure obligation in respect of the elements (documents on any medium whatsoever: reports on discussions, drawings, exchanges of computerized data…) which are exchanged within the framework of the preparation and performance of the contract. Generally, the Customer hereby acknowledges that all the confidential information whatsoever, relating to the Supplier, is sent to it solely for the purposes of the agreement and solely in order to enable it to make its decision. Nevertheless, information which is in the public domain when the contract is executed, or which the Customer has already become aware of in a lawful manner, is not subject to the non-disclosure obligation.III – 3 Specifications – special manufacturing
The Customer is obliged and responsible for establishing specifications (in particular, drawings, equipment, technical specifications) which define the features of the service to be provided. The Customer is a competent professional in its specialist field and solely responsible for the completion of the item to be developed. It shall accurately and relevantly define its requirements and direct the Supplier towards the resources which the latter shall have to implement in order to meet such requirements. The specifications shall be sufficiently precise, adapted to the service and complete. The Supplier may not be held liable in respect of an omission or error in the specifications provided by the Customer. The drawings, studies and projects which may be sent by the Supplier only represent proposals which may not be assimilated to any involvement in the design of the final product or cause it to incur liability. In this respect, the drawings require the Customer’s approval and shall be returned to the Supplier within 30 days, at the latest, unless there is a specific provision to the contrary.IV – PRICES IV
1 Prices
Unless there is a specific agreement: – the offers are valid for one month. – an on-account payment of at least 50% of the amount of the order shall be owed for all major orders and for all orders of so-called “special” supplies, regardless of the amount thereof. Said on-account payment shall be paid in cash. – prices are established “ex works” (EXW – according to the effective Incoterm on the date when the contract is executed) and are always exclusive of packaging and carriage, which is always paid by the Customer. IV2 Price revision
In the event of the occurrence of an event which is outside its control and which compromises the contract’s balance, the Supplier may revise its prices on the basis of terms and conditions which shall be obligatorily predetermined by the Parties in the special terms (in particular, in the event of changes in the price of raw materials, the reform of customs’ law, exchange rate fluctuations, legislative reform). All changes made by the Customer to the contract may cause the prices granted to be revised. IV3 Conditions for opening an account
All opening of an account may lead to payment of an on-account payment or cash payment when ordering. The Supplier reserves the right to make the opening of an account subject to obtaining accounting, financial and legal documents and, where applicable, guarantees, from the Customer.V– PAYMENT
V – 1 Payment lead-times
Down payments must always be paid in cash. In accordance with Article L.441-6 of the French Commercial Code as resulting from the law of modernization of the economy No. 2008-776 dated August 4, 2008, known as LME, the payment date agreed between the parties to pay the outstanding amounts cannot exceed a 45-day period end-of-month or a 60-day period following the date of issue of the invoice. Any clause or request for the purpose of setting or obtaining a payment date which exceeds this maximum period may be deemed to be abusive within the meaning of Article L.442-6 I 7 of the French Commercial Code as resulting from the law of modernization of the economy No 2008-776 dated August 4, 2008, and is liable in particular to a civil fine of up to two million Euros. Payment dates agreed to contractually cannot be unilaterally challenged by the Customer on any pretext whatsoever, including in the event of litigation. Advance payments shall be made without discounting unless specifically agreed otherwise. In the case of payment by way of trade note, acceptance must be given within seven days of the date the note is sent, which is the customary time period in accordance with the provisions contained in Article L511-15 of the French Commercial Code.V – 2 Delay in payment
In accordance with Article L.441-6 Paragraph 12 of the French Commercial Code as resulting from the law of modernization of the economy No 2008-776 dated August 4, 2008, any late payments shall give rise to the application of late payment interest at the most recent refinancing rate of the Central European Bank, increased by ten percentage points. Any delay in the payment of an installment shall, at the Supplier’s discretion, entail the immediate maturity of the contractual payment and all amounts owed shall become immediately due and payable. In the event the Supplier exercises its rights under either of these provisions, this shall in no way deprive the Supplier from the right to implement the clause relating to its seller’s lien contained in Article 10. In the event of late payment, the Supplier shall benefit from a right to retain ownership of the equipment in accordance with Article 2286 of the French Civil Code. V-3 Changes affecting the Customer’s circumstances In the event of deterioration in the Customer’s circumstances as established by financial information and/or as witnessed by a delay in payment, or when its financial circumstances are significantly different from the data provided, deliveries shall only be made in consideration of immediate payment. In the event of the sale, assignment, pledging or contribution to a company of its business, or a significant proportion of its assets or equipment by the Customer, and in the event of failure to comply with the payment lead-times, or in the event that the bill of exchange has not been returned with acceptance within 15 days, the Supplier reserves the right, without serving formal notice: – to declare an event of default and, consequently, the immediate playability of amounts which are still outstanding in any respect whatsoever, – to suspend all deliveries or all services, – to note, on the one hand, the cancellation of all the then-ongoing contracts and, on the other hand, to withhold the on-account payments received, and to retain products held, until the amount of any indemnity is set. The fact that the Supplier may invoke any of these provisions shall not obstruct the reservation of title clause, or prevent the Supplier from requesting a fixed indemnity, as a penalty clause.VI – RESERVATION OF TITLE
The Supplier shall retain ownership of the supplied products until actual payment of the whole price (principal amount and incidentals). Failure to pay any of the installments may lead to the products being reclaimed. Nevertheless, as from delivery, the Customer shall assume the risks of loss of, or damage to, the products, and liability for any damage / loss which they may cause.VII – DELIVERY
VII – 1 Terms of delivery
Delivery is deemed to have been made once the goods are made available in the Supplier’s premises. The risks relating to the goods are transferred to the Customer as from said availability and for the whole term of the reservation of title in favor of the Supplier. Delays shall not justify cancellation of the order. In the event of a delay in delivery in terms of the lead-times agreed upon by the Parties: should special agreements provide for penalties, the latter shall under no circumstances exceed 0.5% per week of delay, up to an aggregate maximum of 5% of the workshop or warehouse value of the equipment for which the delivery has been delayed. A penalty for delay may only be applied if the delay is exclusively attributable to the Supplier and if it has caused actual loss. If the Customer failed to advise the Supplier in writing, when the order was placed, and failed to confirm, at the scheduled delivery time, its intention of applying this penalty, the latter may not be applied. These penalties represent fixed, discharging damages, and are exclusive of any other form of compensation. Payments for supplies may not be deferred or modified owing to these penalties. The Supplier shall be automatically discharged from any and all commitment relating to delivery lead-rimes should the Customer fail to comply with the terms of payment, or in the event of the occurrence of a case of force majeure as defined in Article VIII.VII – 2 Delivery lead-times
The delivery lead-times begin to run as from the date of final acceptance of the order by the Supplier, subject to the possible payment of an on-account payment. Moreover, the start date for such lead-times is conditional, where applicable, upon receipt of all the items required to manufacture the products or possibly, acceptance of the pre-project, as required to start performance of the contract. The delivery and performance lead-times provided to the Customer are defined based on a schedule drawn-up by the Parties in the specifications. In the event of a change to the schedule, which is attributable to the Customer, the Supplier shall be entitled to request an additional payment (plus value) in respect of the resulting changes and reorganization. A new schedule shall be established, and the Customer may not claim any penalty from the Supplier in the event of a delay owing to its breach.VII – 3 Taking-back standard equipment
Taking-back standard equipment shall be subject to the Supplier’s written agreement and shall relate to new products in their original packaging, during the 30 days following the delivery date. Returns shall be sent with shipping and packing paid, stating the delivery slip number and may be subject only to partial repayment as determined by the Supplier. Under no circumstances shall the Supplier take-back specific products which have been developed on request or according to specifications. VII -4 Export control The products may contain technologies or software which are subject to United States and European export-control legislation, and to the legislation of the countries to which they are delivered or where they are used. The products may not be sold, leased or transferred to users or countries subject to restrictions, or who/which may use them for purposes of mass destruction or genocide.VIII – ACCEPTANCE
The Customer shall be bound to carry-out legal acceptance of the products for which it has acknowledged compliance with the contract. Acceptance represents the acknowledgement of the absence of patent defects. Such acceptance shall be formalized in writing. In all cases, the nature and scope of the control work, tests and acceptance procedures shall be specified in the contract. Should the acceptance procedure not take place in the presence of both Parties, acceptance shall be deemed to have been given if: – the Supplier has complied with its main contractual obligations, even if minor reservations have been expressed, – the Customer has authorized the products which are the subject of the contractIX – FORCE MAJEURE
Neither Party may be held liable for its delay or failure to comply with any of its obligations under the contract if such delay or breach is the direct or indirect consequence of an event of force majeure, understood within a wider sense than that allowed by French case law, such as: – the occurrence of an Act of God, – earthquake, storm, fire, flood, etc. – armed conflict, war, terrorist attacks, – labor unrest, total or partial strike in the Supplier’s or Customer’s company, – labor unrest, total or partial strike in the suppliers’, service providers’, carriers’ companies, or in the postal service and public services, etc., – an imperative injunction from the public authorities (ban on imports, embargo), – operating accidents, broken machinery, explosions, – a breach by suppliers. Each Party shall inform the other Party, as soon as reasonably possible, and by registered letter with acknowledgment of receipt, of the occurrence of a case of force majeure of which it becomes aware and which, in its opinion, may affect performance of the contract.X – CONTRACTUAL WARRANTY
The warranty exclusively covers repair work in our workshops or the supply of replacements for the parts which are defective owing to a manufacturing defect, or a material defect once the latter has been noted or admitted by the Supplier. The warranty exclusively covers the original products of the brand or those which are marketed by the Supplier. Except for the express warranties stated in this document, Effilux makes no additional warranties, express, implied, or statutory, as to any matter whatsoever. All warranties of merchantability or fitness for particular purpose are expressly excluded. Except as expressly set forth herein, Effilux makes no warranties with respect to the products. Classic warranty period: two years (one year for radiant quantity) starting from Effilux shipping date. One year for UV products (wavelength under 420nm) and no warranty for polarizers. Effilux will repair or replace the product free of charge if it should fail to function or if the radiant quantity of the product should drop to 50% or less of its initial radiant quantity within the specified warranty period. If either of these conditions occurs, please take the product to your Effilux sales representative. 1. Effilux will repair or replace the product free of charge if it should fail to function under use on our specified condition in accordance with the instruction guide and other written cautions during the indicated warranty period (of one or two year(s)). 2. Effilux will repair or replace the product free of charge if its radiant quantity should drop to 50% or less of its initial radiant quantity under use on our specified condition in accordance with the instruction guide and other written cautions during the indicated warranty period of one year. 3. Effilux will charge a repair fee under the following conditions: 1) If the product has been subjected to misuse, unauthorized repairs, or modification from its original design. 2) If the product has been damaged from impacts due to inappropriate handling. 3) If damage to the product results from external causes including accidents, fire, pollution, riots, communication failures, earthquakes, thunderstorms, wind and flood damage, or any other act of providence, or from any extraordinary conditions such as electrical surges, water leakage, condensation, or the use of chemicals. 4) If the damage results from connection to any control unit or to any equipment which Effilux does not manufacture or does not specify for use. 4. Effilux assumes no liability for any purchaser’s secondary damage (damage of equipment, loss of opportunities, loss of profits, etc.) Or any other damage resulting from a failure of our product. This warranty information provides the scope of Effilux product warranty within the specified period and does not indicate or imply any further guarantee beyond the warranty terms. Contact Effilux for inquiries or information on repairs to the product after the expiration of the warranty. All warranties shall also be excluded in the event of the Customer’s failure to pay, and the latter may not invoke the existence of a warranty to either suspend or defer its payments. Under no circumstances shall a change to a part in a set extend the warranty lead-times for such set. So as to invoke the warranty, the Customer shall advise the Supplier, in writing and within 48 hours as from their occurrence, at the latest, of the defects which it is attributing to the equipment and provide all supporting documents in respect of the reality of such defects. Outside the warranty period, the supply of spare parts is not compulsory. Should the Customer wish to be supplied with spare parts for a given period following the warranty period, the Parties shall expressly decide upon the terms and conditions thereof in the contract.XI – LIABILITY
Definition of the Supplier’s liability: The Supplier’s liability is strictly limited, on the one hand, to compliance with the Customer’s provisions as set forth in the specifications or in the order accepted by the Supplier and, on the other hand, to good trade practice. Limitations of the Supplier’s liability: The Supplier’s liability is limited to the direct physical damage / loss caused to the Customer owing to breaches which are exclusively attributable to the Supplier whilst performing the contract. The Supplier is not bound to pay compensation for either the harmful consequences of breaches by the Customer or third parties relating to performance of the contract, nor for the damage / loss arising from the Customer’s use of technical documents, information or data which are either issued or imposed by the latter. Under no circumstances shall the Supplier be bound to compensate for direct and/or indirect physical damage / loss such as loss of operations, profit, loss of sales… In all cases, with the exception of bodily injury, fraud or gross negligence, the Supplier’s general liability may not exceed the amount, exclusive of taxes, received in respect of the contract and in respect of the order from which the damage occurred. Exclusion of liability The Supplier’s liability is excluded:- – for defects originating from the design produced by the Customer,
- – for defects originating from the materials supplied by the Customer,
- – for damage / loss originating from the use of products other than original products, or of materials procured from another supplier,
- – in the event of the intervention, repair or adjustment by the Customer or a third party without the Supplier’s prior agreement,
- – in the event of negligence, lack of supervision, poor assembly, or use which is non-compliant with the technical features recommended by the Supplier or a warehousing error, attributable to the Customer.