BAUDET SAS General Terms and Conditions of Sale
ARTICLE 1 – APPLICATION OF THE GENERAL TERMS AND CONDITIONS OF SALE
These general terms and conditions of sale appear on the back of Baudet SAS’s order forms and invoices. The act of placing an order automatically implies full and unreserved acceptance by the Customer of these general terms and conditions of sale, which apply to the exclusion of all other terms and conditions which may appear on any other document issued by Baudet SAS or by its contractual partner. No general or special terms and conditions which appear in the documents sent or communicated by the Customer may be included in this contract.
Any waiver of an obligation or a right under these general terms and conditions of sale and any modifica- tion of this document shall only be valid when said waivers and modifications are established in writing and signed by a duly authorised representative of Baudet SAS.
ARTICLE 2 - ORDER
When the order does not conform to the estimate established by Baudet SAS, the latter shall only be bound by the orders taken by its agents subject to written confirmation signed by Baudet SAS’s mana- gement.
An advance payment, the amount of which will be agreed between the parties, must be made within eight days of the validation of the order; otherwise, the order shall be null and void if Baudet SAS so deems fit, without any indemnification being due to the Customer.
ARTICLE 3 – AUTONOMY OF CONTRACTS
The conclusion of a supply contract at the same time as the conclusion of an installation contract does not imply indivisibility of the contracts which shall remain independent from one another, notwithstanding the provisions of article 6, paragraph 2, and the express derogation provided in article 7.
Consequently, when there are two contracts providing for the provision of products then the installation thereof, the proper performance of these services shall be assessed separately, with all the subsequent legal consequences.
ARTICLE 4 – SUPPLY OF PRODUCTS
The supply of products corresponds to the delivery of assembled products, products to be assembled or of separate accessories and equipment.
This delivery shall be made in Baudet SAS’s depots or in any other contractually agreed place. The risks shall be at the charge of the Customer upon the delivery of the products sold subject to retention of title. It must bear the risks, storage and maintenance of the products at its cost.
3.1 Delivery in Baudet SAS’s depots
The sale is deemed to be made at Baudet SAS’s factory (ex WORKS 2000 – INCOTERM 2000).
The liability and risks attached to the products shall be transferred to the Customer once the products have been loaded onto the transport vehicle (the transport agent shall be responsible for stowage ope- rations) or, at the latest, on the day following the date on which the products are made available, without prejudice to any indemnification and penalties which Baudet SAS shall be entitled to claim pursuant to the provisions of article 8.
The Customer must take all dispositions to verify the condition of delivered products and to indicate any non-conformity or damage in the delivery report established upon completion of loading.
3.2 Delivery to any other place
When Baudet SAS organises the transport of products at the request of the Customer, the latter shall pay the cost thereof. In addition, liability for the risks attached to the transport of the products shall be transfer- red to the Customer after a delivery report has been established prior to unloading the transport vehicle, unless otherwise expressly provided.
As unloading is carried out at the risk of the Customer, the latter must indicate any apparent damage prior to unloading.
In the event of a refusal to accept a delivery by a Customer which is not due to the non-conformity of the products, the liability and the risks attached thereto shall be transferred to the Customer upon the departure of the transport vehicle to Baudet SAS‘s factories without prejudice to any indemnifications and penalties the latter may be entitled to claim in compliance with the provisions of article 8.
ARTICLE 5 – DELIVERIES - DEADLINES
Baudet SAS is authorised to make partial or complete deliveries, subject to informing the Customer thereof in advance.
The deadlines indicated are provided for information purposes only and are not binding.
The delivery periods which appear on the validated orders are provided as accurately as possible but may vary depending on supply situations and transport constraints. When it is not due to a force majeure event, any delay in delivery of less than four weeks may not give rise to the payment of damages, to the withholding of amounts due or the cancellation of orders in progress
The following events in particular are considered force majeure events which release Baudet SAS from any obligation to deliver within the specified deadlines: wars, riots, fire, strikes, accidents, impossibility to find supplies, adverse weather conditions.
Baudet SAS shall inform the Customer at the earliest opportunity of the occurrence of any of the events listed hereabove.
In any event, delivery within the deadlines which appear on orders may only take place if the Customer is up to date with its obligations towards Baudet SAS, for any reason whatsoever.
ARTICLE 6 - WARRANTY
Within the framework of the warranty for hidden defects in compliance with the provisions of Articles 1641 et seq. of the Civil Code, Baudet SAS undertakes to repair or to replace defective parts, with labour costs remaining at the charge of the Customer. Any other guarantee from the seller is excluded, in particular with respect to repairs due to normal wear and tear or due to a negligent or wrongful act or incorrect use, etc.
As an exception to the previous paragraph and notwithstanding the provisions of article 3 “autonomy of contracts”, when Baudet SAS supplies and installs products, these services are subject to the legal manu- facturer’s warranty and in particular the 2-year warranty for the proper working order of goods as provided by Article 1792-3 of the Civil Code.
ARTICLE 7 - PRICES
The products are supplied at the price in force on the date the order is validated.
However, if delivery is deferred by more than 90 days as of the date of the order, or if it is delayed due to
the Customer, the price shall be revised by applying the following formula:
C = 0.169 + 0.74 x (BTm / BTo) + 0.091 x (Icm / Ico)
It being specified that:
C = revision coefficient;
0.169 = fixed charges portion;
0.091 = portion covering composite material and related labour costs;
0.74 = portion covering non-composite materials and related labour costs; ICm = last GEPIC index known on the actual date of delivery;
ICo = last GEPIC known on the day the order was validated; BTm = last BT01 known on the day of actual delivery;
BTo = last BT01 known on the day the order was validated.
Invoices are payable to Baudet SAS’s registered office 30-days end of month from the billing date; when
payment is made by means of a bill of exchange, this must be accepted.
In the event of early payment, a discount will be granted. It will be calculated as follows: [(Euribor rate at 3
months/12) x number of full early months].
All payments shall be made in Euros and by cheque or by bank transfer.
Any bank charges relating to the payment method used shall be solely at the charge of the Customer.
ARTICLE 8 – PENALTIES
8.1 Late payment
In the event of late payment, Baudet SAS may suspend all orders in progress, without prejudice to any legal action it may take. Any sum which is not paid by its due date shall give rise, automatically and without prior notice, notwithstanding the provisions of Article 1153 of the Civil Code, to the payment of late interest at one and a half times the legal interest rate which applies on the billing date. This interest shall accrue as of the due date until the date of actual payment.
Payment shall only be deemed to have been effectively made when the amounts are credited to Baudet SAS’s bank account.
8.2 Non-payment
In the event of non-payment, forty-eight hours after sending official notice to pay which remains without effect, the sale will automatically be cancelled without any legal formality, if Baudet SAS deems fit, and the latter may request, in summary proceedings, the return of the products, without prejudice to any other damages it may claim. The termination will apply not only to the order in progress, but also to all other previous unpaid orders, whether they have been delivered or are about to be delivered and whether their payment is due or not.
In the same way, when payment in instalments has been accepted, the non-payment of one single instal- ment shall immediately render the entire outstanding amount payable, 15 days after sending official notice to pay which remains without effect.
8.3 Delivery refusal
If, for reasons other than non-conformity, the Customer refuses to take delivery of all or part of the products made available to it in Baudet SAS’s depots or if it refuses delivery in the place specified in the contract, Baudet SAS shall be entitled to invoice and demand payment of the entire order, and to apply storage pe- nalties at the rate of 1% per each calendar day late, calculated on the amount of the entire supply, including taxes, without prejudice to the re-invoicing of any expenses incurred in this regard, in particular transport and handling costs and any other damages.
8.4 Immediate payability
In all of the above cases, the amounts due with respect to other deliveries, or for any other reason, shall become immediately payable if Baudet SAS does not decide to terminate the corresponding orders. The Customer must pay all of the costs incurred by the contentious recovery of the amounts due, including the fees of any judicial officers. Payments may not in any event be suspended or set-off without the prior written consent of Baudet SA. Any partial payment shall be allocated in priority to the non-privileged part of the debt, then to the longest outstanding sums.
ARTICLE 9 – AUTOMATIC CANCELLATION
In the event of the non-performance of its obligations by the Customer, and for causes other than those referred to in article 5, the sale will be automatically cancelled without any legal formalities if Baudet SAS deems fit, without prejudice to any damages it may be entitled to claim, 15 days after sending official notice by registered letter with acknowledgement of receipt which remains without effect.
ARTICLE 10 – RETENTION OF TITLE
The transfer to the Customer of the ownership of the products sold is suspended until full payment of the price.
Absence of payment within the period agreed by the parties may lead to the products which are in the Customer’s possession being reclaimed.
The Customer undertakes not to pledge the goods or to provide them as collateral or surety (or the equi- valent in the jurisdiction of the sale) for as long as they are subject to the
retention of title clause.
The Customer undertakes to allocate the price of the sale of goods to its own clients to a separate bank account in the name of Baudet SAS.
Until the transfer of ownership, the Customer undertakes to store and to protect the goods as if they were its own goods. The Customer shall ensure that it is always possible to identify the
products, with those in stock being presumed to be those which have not been paid.
Baudet SAS may access the goods at all times for the purpose of removing them if they are subject to the retention of title clause.
ARTICLE 11 – MISCELLANEOUS PROVISIONS
The invalidity or the cancellation of any provision of this contract shall not affect the validity of the other provisions, which shall remain in force.
All intellectual property rights, patents, know-how relating to any designs, processes, and technology, shall remain the exclusive property of Baudet SAS.
All documents, data and information established by Baudet SA in relation to the performance of this contract shall remain its exclusive property.
ARTICLE 12 – ATTRIBUTION OF JURISDICTION – CLAIMS – APPLICABLE LAW
In the event of a dispute of any nature or a claim relating to the formation and to the execution of the order, and if no amicable settlement can be reached, the courts in the place of Baudet SAS’s registered office shall have sole jurisdiction.
These general terms and conditions of sale and all the contractual relations arising therefrom shall be governed solely by French law. The Vienna Convention of April 11, 1980 relating to the international sale of good shall not apply.