The present general terms and conditions of sale are mandatory and prevail over all other provisions figuring on the customer’s documents.
The general terms and conditions of sale and other derogatory agreements not explicitly accepted in writing are considered as unwritten and ineffective against our company.
The acceptance of our general terms and conditions of sale is determinative and forceful for the conduct of relations with SERTA without which the latter would not have accepted to enter into any contract.
SERTA’s general terms and conditions of sale constitute the law for the parties. The mere fact of placing an order with SERTA implies acceptance without reservation of those terms and conditions and renouncement of contesting the applicability thereof for any reason whatsoever.
The said general terms and conditions of sale become effective from 1st January 2009 and cannot be modified without prior notice by ourselves.
Documents, drawings and other product diagrams enclosed with offers are supplied as a guide only and cannot bind SERTA who can modify its product until approval of the order by the latter and even afterwards, subject to the sole condition of equivalent performance or of compliance with the specific needs of the purchaser. The assembler purchaser will carry out the required layout and compatibility studies and will be responsible for compliance with current regulations in respect of noise, hygiene and safety. Furthermore, in cases of orders for special products, SERTA is only the guarantor of compliance of the product with specifications listed in the order acceptance or in the acceptance letter.
What is more, when the products are manufactured in compliance with customer drawings and/or indications, our responsibility could only be involved in cases of defectiveness due to erroneous design.
2- INDUSTRIAL PROPERTY
Studies, plans, drawings and other documents delivered or sent by SERTA remain our intellectual and industrial property; they cannot therefore be handed over to a third party by the purchaser for any reason whatsoever.
3- CLAUSE OF RESERVATION OF TITLE
SERTA retains ownership of assets until the effective payment of the full price of the main order and accessories. Default of payment at any one of the dates of payment could lead to a claim for those assets. The present reservation of title clause does not bar the transfer of risk such as stipulated in the Article « Handover, Transfer, Delivery deadline » below.
Purchaser orders are performed subject to the double condition of being accepted by SERTA and being accompanied by a drawing and specification sheet bearing our written words « accepted ». When an estimate is drawn up by SERTA, it constitutes the special terms and conditions amending the present general terms and conditions as soon as it will have fulfilled the above acceptance terms and conditions. In the event of cancellation of order by the purchaser, that part of the order already made or currently being made on the day of notification of the cancellation must be settled; an order currently being made includes (not only) that part currently being made but also the supplies of stores or those ordered by SERTA and required for its manufacture.
Any modification of reference in an order, or of distribution between the various products included in the same order or any change of quantity, must be explicitly accepted by our company to validate the order.
In the case of open orders, without prejudicing the terms and conditions defined by article 1174 of the French Civil code, they must meet the terms and conditions set out below:
– They are limited in time by the agreed deadline.
– They define the characteristics and price of the product.
– At the time of concluding open orders, minimal and maximal quantities together with performance dates are stipulated.
– The delivery order phasing defines the precise quantities and time limits figuring in the range of open orders.
If the corrections made by the purchaser to the forecast estimates of the amortization table of the overall open order or of delivery orders deviates upwards or downwards by more than 20 % from the total of the said estimates, SERTA will appraise the consequences of those variations.
In cases of upward or downward variations, the parties must discuss together to find a solution for the consequences of such a deviation that are likely to modify the balance of the contract to the detriment of SERTA.
In the event of upward variation, SERTA will do as much as possible to meet the quantity and deadline requirements of the purchaser compatible with its capacities (production, carriage, subcontracting, HR, financial, etc.).
In the event of cancellation of open orders with calls for delivery within 3 months, SERTA reserves the right to invoice a month of finished products, two months of ongoings of production and of stock supplies or supplies ordered by SERTA.
5- HANDOVER TRANSFER DELIVERY DEADLINES
Whatever the destination of the product and terms and conditions of payment, the handover is deemed to be performed in SERTA factories or warehouses.
Risk transfer is total from the date of notification, notably by the delivery note, of the said handover. The shipment is performed at the purchaser’s risk, except for tort claims by the latter against authorized agents that he will have assigned the operations of packing, loading or carriage, in spite of any indications such as “Free forwarded to railway station, quayside, destination or full or partial reimbursement of carriage costs”, such indications being assumed to be associated with the payment and not with SERTA’s risks or responsibilities.
If the shipment is delayed for any reason whatsoever beyond the control of SERTA, the product is, if necessary, warehoused and handled at the expense and risks of the purchaser, SERTA refusing any consequent liability in that respect other than that of depository agent. Nevertheless, it is incumbent on the purchaser to take out any suitable insurance on the count of packing, carriage, handling and warehousing, unless he explicitly assigns the said tasks to SERTA.
Those provisions modify in no way the obligations for payment of supplies and constitute no substitution whatsoever.
Delivery deadlines shall be respected as much as possible and are given as a guide. Delays can under no circumstances whatsoever justify the full or partial cancellation of any order, nor can they lead to penalties or damages, except either where otherwise accepted by SERTA and duly specified in the acknowledgement of receipt of the order, or on expiry of a period of three months after a formal demand by registered letter with acknowledgement of receipt by the purchaser. In that case, a penalty clause could only be applied if it had been previously accepted and if the delay was ascribable to SERTA and if it is demonstrated that it had caused the purchaser real harm, ascertained jointly.
SERTA is without further formality free of any commitment with respect to delivery deadlines:
1) In cases where terms and conditions of payment are not respected by the purchaser.
2) In cases where the technical or commercial information to be supplied by the purchaser, necessary for the performance of the order, does not arrive in good time.
3) In cases of force majeure or of events such as: lockouts, strikes, epidemics, war, sabotage, requisition, fire, damage by water, works equipment accidents, rejection of important parts during manufacture, raw materials carriage or reception interruptions or delays, and any cause bringing about total or partial downtime for SERTA or its suppliers.
It is likewise for any delay in preparatory works, projects or studies.
SERTA will systematically endeavour to keep the purchaser informed in good time of the occurrence or ceasing of the above mentioned cases.
Prices are given as a guide during SERTA’s invitation for tenders except where option periods are specified.
Orders placed beyond the option period will be submitted to SERTA rates or prices valid on the day of ordering. The parties therefore accept in anticipation any variation of price likely to occur between the date of the order and that of the delivery, without being able to invoke it as a cause of cancellation of the order or of rescission of the sale agreement.
The prices indicated in the order acceptance are quoted exclusive of tax, handed over in SERTA’s workshops.
Prices are calculated net with no discount for payments made 30 days from the date of invoicing.
Any reduction of the firm ordered quantity brings about ex officio a modification of the unitary price of the equipment.
In compliance with the French law n° 2001-420 of 15 My 2001 and with European Directive 2000/35 EC of 29 June 2000, payments are made net 30 days date of invoice, except where otherwise agreed between the parties.
However and in compliance with the French law n° 2008-776 of 4 August 2008 payment periods cannot exceed 45 days after end of month of invoice.
Down payments shall however be paid cash.
The noncompliance with payment of an invoice or down payment will lead to the automatic application – in compliance with article L 441-6 of French commercial law – of a late penalty at the refinancing rate of the Central European bank (BCE) plus 10 points.
Any clause or request conducing to fixing or obtaining terms of payment exceeding that payment date of 45 days after end of month of invoice could be considered improper in the sense of article L 442-6-7° of French commercial law.
The payments are made to the SERTA head office, and except where otherwise stated, are net and without discount.
The non-return of commercial papers within a period of 15 days from the date of their mailing shall be considered as non-compliance with the contractual terms and conditions of payment.
8- PACKAGING and CARRIAGE
All packaging and protective items made for carriage and storage are invoiced as additional charges. Packaging is not returnable.
Except where otherwise stated, the delivery is deemed to be performed in our factories or warehouses. .The operations of carriage, insurance, customs clearance, handling and onsite delivery are the responsibility with respect to expense and risk of the purchaser on whom it is incumbent to check on arrival and if necessary to claim against the carrier or the forwarding or transit agent. Any derogation must allude to the « Incoterms » in force on the day of ordering.
9- RESOLUTIVE CLAUSE
In the case of non-payment by the purchaser within agreed payment deadlines, any concluded but unpaid sale shall be resolved without further formality, if SERTA deems appropriate, and if after a formal demand by registered letter with acknowledgement of receipt made by SERTA, the purchaser has not assured his payment in any way. Likewise, any partial down payment or payment received by SERTA will be considered acquired by way of damages.
10 – WARRANTY
1 – SERTA guarantees the products it sells and supplies against any faults or defects in workmanship or operability, whether derived from a fault in design, raw materials, manufacture or performance, under the following conditions and within the following limits:
2 – The warranty is only applicable if the purchaser meets the general obligations of the present contract and particularly the terms and conditions of payment.
3 – The warranty is strictly limited to supplies sold by SERTA. It does not include products in which SERTA supplies are not incorporated by SERTA and particularly with respect to the performance of those products.
4 – When equipment is incorporated by the purchaser or by a third party in any product, the latter are solely responsible for the adaptation, selection and appropriateness of SERTA supplies. In particular, the warranty does not grant coverage in cases of faults related to the assembly, adaptation, design, association and operability of the system or parts of the system thus created.
5 – The duration of the warranty is that of the first of the following two periods falling due: 12 months from the date of being fitted on the machine or 18 months from the date engraved on the supply. The commissioning must be performed within a maximal period of three months after handover of the product to the purchaser on SERTA premises. SERTA is entitled to demand of the purchaser a proof of the date of commissioning indicated on the warranty request. That period can neither be extended nor interrupted by the purchaser’s out of court or legal claim. On expiry of that period, the warranty terminates without further formality.
6 – SERTA’s guarantee obligation can only come into play if the purchaser ascertains that the fault occurred under the operating conditions allowed for, for that type of equipment, or indicated in writing by SERTA, and during normal use. It does not apply in cases of incorrect storage and by the fault of the user, of negligence, imprudence, supervision or routine maintenance faults, non-compliance with instructions for use or with strong recommendations, use of fluids of insufficient quantity. SERTA has no liability for any damage provoked by losses of fluids or leaks. Any warranty is also excluded for incidents resulting from fortuitous events or of force majeure, as well as for deteriorations, replacement parts or repairs resulting from normal wear of the equipment.
For special products in compliance with detailed purchaser drawings, SERTA’s warranty is limited to the correct performance of components.
7 – Except for special terms and conditions set out when the contract is signed, the warranty is limited to the obligation to overhaul/repair, in SERTA workshops at the expense of the latter and as soon as possible, the products and parts supplied by SERTA, acknowledged defective by its engineering department and forwarded to SERTA carriage free. During the warranty period, the purchaser still bears the responsibility and cost for charges for labour related to the removal of the product and putting it back in place outside SERTA premises, charges for transferring the defective product or the replaced or repaired product, travel and hotel expenses for the purchaser’s technicians.
When guarantees are given in respect of the industrial results of any given product, the definition of those results and the consequences of that commitment shall be set out in an agreement between the two parties prior to the placing of the order.
In order to be able to benefit from the warranty, the purchaser must immediately advise SERTA in writing within 5 clear days of the faults they attribute to the equipment and must provide all necessary documentary support to prove those faults. He must offer SERTA all facilities to proceed with the ascertainment of those faults and in order to correct them. The warranty does not apply if the product is not returned to SERTA in the state when it became faulty, or if it was previously unsealed, removed, repaired, modified either by a third party or by the user or purchaser. After having advised of the fault of its product, SERTA shall correct that fault as soon as possible while reserving the right, if necessary, to modify all or part of the product in such a way as to meet its obligations.
9 – The purchaser explicitly accepts that SERTA is not responsible for damage caused by the fact that the purchaser had not fulfilled any one of his obligations such as defined above.
10- Returned goods cannot be reimbursed but merely replaced by other supplies
11- REPAIRS UNRELATED TO ANY FAULT
Repairs can only be started after the written acceptance of SERTA’s estimate.
When the estimate is not accepted by the purchaser within a period of 15 days after the mailing of the estimate, the costs of removal, storage and expertise are borne by the purchaser.
12- ATTRIBUTION OF JURISDICTION
Any dispute in respect of the present sale, even in cases of warranty claims or multiplicity of defendants, failing an out of court agreements, shall fall within the exclusive competence of the commercial court of LA ROCHE SUR YON.
Only the French document is the contract language. Therefore, SERTA is not engaged by potential divergences between the French and the English translation.