General Conditions of Sale – ETIS

Article 1 – Subject and field of application

• Unless it has been otherwise agreed in writing any order placed with ETIS implies the unreserved and complete acceptance by the Purchaser of the present general conditions of sale which shall prevail over any other document from the Purchaser and especially its general conditions of purchase.
• The present general conditions of sale, in conjunction with such conditions as may be set out in the Order, shall apply to all sales of goods, also referred to herein as products, concluded by ETIS, and as may be provided in the Order, specific services provided by it.
• The fact ETIS does not enforce at a given moment in time any one of the present general conditions of sale shall not be interpreted as being a waiver of any right of ETIS to avail itself thereof at a later date.
• Any document other than the present general conditions of sale such as catalogues, prospectuses, advertising, notices, shall be purely informational, be indicative and non-contractual.
• The present general conditions of sale shall apply for as long as ETIS has not informed the Purchaser of its decision to replace them by new general conditions of sale. They may be amended at any time by ETIS without prior notice. In such a case, ETIS shall so inform the Purchaser by any appropriate means.

Article 2 – Orders

• “Order” shall mean any Order placed for the products and/or services sold by ETIS. Orders including the written attachments thereto, shall not be definitive, even when through one of the representatives or employees of ETIS, except when confirmed in writing by a duly authorised executive of ETIS.
• For an Order to become binding upon ETIS, it must include the present General Conditions of Sale. Should this not be the case, the Order shall not be binding upon ETIS. ETIS’s written acknowledgement of the Order shall render the Order irrevocable.
• The Order constitutes the complete and full understanding between the Parties thereto with respect to the subject matter of the Order and save in respect of fraud supersedes all previous negotiations, representations, agreements, commitments and writing in respect thereof. Neither Party shall be bound by any terms or representations, warranties, understandings or representations with respect to such subject matter other than as expressly provided in the Order or as duly set forth on or subsequent to the effective date thereof in writing.
• After confirmation by ETIS, Orders shall be irrevocable, and the Purchaser may not cancel them.
• Any request for change to the composition or volume of an Order placed by the Purchaser shall not be taken into account by ETIS unless the request is made in writing and is received by ETIS at the latest two calendar days after receipt by ETIS of the initial Order.
• Should the Order be changed by the Purchaser, ETIS shall be exonerated from its obligation to meet the deadlines, if any, originally agreed for the execution thereof.

Article 3 – Rate – Price

• ETIS reserves the right to change its prices. These may be reviewed upwards as long as the Purchaser has been previously so informed in writing.
• Any change to the price shall be applicable on the date shown on the new price.
• The supply of goods shall be made against payment by the Purchaser of the prices shown on the date on which the Order was placed, plus unless taxes.
• Unless it shall have been agreed otherwise in writing, the price shall be net, not including carriage, and as expressed in Euros exclusive of tax on the basis of the rates communicated to the Purchaser, and may not be amended once approved by the Parties.
• Any tax, due by or other sum to be paid in application of French or other applicable regulations as well as those of an importing country or transit country shall be borne by the Purchaser.
• Should ETIS have to bear additional costs in the performance of the Order that are not otherwise covered by the Order Price(s), ETIS shall notify the Purchaser of same with supporting documentation. Thereafter ETIS shall be entitled to invoice the Purchaser for such additional costs.
• Unless otherwise agreed in writing, ETIS’s invoices shall be payable at thirty (30) calendar days from the date of the issue of the invoice. The price shall be payable by electronic bank transfer to ETIS’s designated bank account and the Purchaser shall only be considered to have performed its payment obligation when the sums have been received by ETIS’s bank in funds that are available immediately. Payment shall then be considered to have been made.
• In the case of part payments based on the part delivery of products and/or services, each part payment defined in the Order shall be paid in full by the Purchaser before delivery of the next part delivery of product and/or services.
• Where the Parties have agreed that payment be made by Purchaser-furnished Letter of Credit issued by a first-class bank acceptable to and in favour of ETIS, the Purchaser shall be obliged to have furnished such Letter of Credit within ten (10) calendar day of the date of the Order.
• Should Purchaser fail to furnish the Letter of Credit ETIS shall be entitled to cancel the Order by simple written notice, without the need for legal proceeding, and without prejudice to any rights that ETIS may exercise against the Purchaser for such breach in accordance with the Order or at law, notably for damages and costs flowing from such termination.
• The Letter of Credit, if required, shall be drafted in terms acceptable to ETIS, notably that it be irrevocable, confirmed, payable on sight at ETIS’s confirming bank and, among other things, permit partial consignments and transhipments.
• ETIS reserves the right to accompany this type of payment with a guarantee known as the Stand-By Letter of Credit in order to protect itself against any default by the Purchaser.
• Should the Parties have agreed that payment shall be guaranteed by a bank, the Purchaser shall furnish in a form acceptable to ETIS within ten (10) calendar days of the date of the Order a first-demand bank guarantee in accordance with the Uniform Rules concerning a Guarantee on Demand ICC Publication N° 758 or a Stand-By Letter of Credit that complies with the Uniform Rules or with the Rules and Uniform Usages concerning Documentary Letters of Credit published by the ICC, and in both cases issued by a reputable first-class bank previously approved in writing by ETIS.
• In case of delayed payment, ETIS may suspend any orders in progress, without prejudice to any other course of action.
• Any amount unpaid by the due date and shown on the invoice shall lawfully result in the application of penalties, in an amount equal to the rate applied by the European Central Bank on its most recent financing operation plus 10 points, from the day following the due date.
• These penalties shall be lawfully due, without any notification to Purchaser whatsoever being necessary.
• If payment is not made within 48 hours of ETIS’s reminding notification for Purchaser payment, ETIS at its discretion shall be entitled to terminate the Order without the need of notice or legal proceedings. In addition ETIS may apply to any competent court for the recovery of the products, without prejudice to any rights to claim damages with interest. Said termination shall not only affect the Order, but also any previously unpaid orders whether or not they have been delivered or are in the process of being delivered and whether or not payment is past due or not.
• When payment in instalments, failure to pay a single instalment shall make the whole of the debt due immediately, without any notification to Purchaser whatsoever being necessary.
• In all of the above cases, amounts due for other deliveries, or for any other reason, shall fall due immediately unless ETIS opts for the cancellation of the corresponding orders.
• The Purchaser shall reimburse all of the costs occasioned by the recovery by legal means of the amounts due.

Article 4 – Reserved ownership clause

Notwithstanding any legislative or regulatory provisions to the contrary, it is agreed that the transfer of ownership of the goods shall be suspended until and shall only occur upon full payment of the Order Price, in principal and any additional costs relating thereto.
Any clause to the contrary, especially in clauses of any general conditions of purchase proffered by Purchaser, shall be considered as being null and void.

Article 5 – Inspection of products before dispatch

• If the Parties have agreed that the Purchaser is entitled to inspect the products before dispatch, if the regulations of the country to which the goods are destined require such inspection, ETIS shall notify the Purchaser, within a reasonable period of time prior to dispatch, that the products are ready for inspection at the agreed place.
• The Purchaser shall then act with due diligence so that the inspection may be made within a period of eight (8) calendar days following the date of said ETIS notice at the agreed place, in such way that the dispatch of the goods may be performed on the contractual date.
• If the Purchaser shall not have performed the said inspection within the eight-day period, it shall be required to pay the cost thereof and settle with ETIS any additional charges incurred, notably the costs of storage, and additional insurance.

Article 6 – Delivery

• Delivery dates are provided for information and are only indicative.
• ETIS shall do its best to meet the delivery dates it has indicated in acceptance of the Order, on the basis of the logistics delays of reference in the industry and to execute orders, except in a case of force majeure, or in a case of circumstances beyond its control, such as strikes, frost, fire, storm, flood, epidemic, difficulties of supply, without this list being exhaustive.
• Delays in delivery cannot give rise to the payment by ETIS of any penalty or fine, nor may it be a reason for the cancellation or withdrawal of the Order.
• In any event and in whatever circumstances, delivery by the seller dates can only occur if the Purchaser has performed or is performing timely its obligations towards ETIS.
• The transfer of risk from ETIS to the Purchaser shall occur as provided in the Incoterms 2010 (corrected 2011), hereafter “Incoterms”, of the ICC (terms and stipulations concerning to the Incoterms published by the ICC), chosen by the parties.
• In the absence of such a choice, Incoterms Ex-Works ETIS premises shall apply; ETIS shall not be responsible for the loading and unloading of the Purchaser’s transport vehicle.
• It is up to the Purchaser, in case of damage to the goods delivered or missing, to make all the necessary reservations to the forwarder. Any reserve shall be made to the forwarder by registered letter with acknowledgement of receipt (of which a copy shall be sent simultaneously to ETIS) within 3 days of receipt of the consignment, unless there are imperative arrangements to the contrary. Once this deadline has passed, the goods shall be considered to have been accepted by the Purchaser, notably in respect to visible defects as well as any discrepancy or non-conformity between the goods delivered compared to the goods ordered.
• In the case of seizure or any intervention by a third party, the Purchaser shall be required to inform ETIS immediately. ETIS reserves the right to recover the goods at any place in whomsoever’s hands they may be found.
• The Purchaser undertakes to permit, at any moment, the identification and claim of the goods, it being agreed that goods in stock shall be considered to correspond to the unpaid goods.
• Should the goods be resold before they have been paid for in full the Purchaser shall be required to so inform ETIS.

Article 7 – Warranty

• Taking into account the status of ETIS acting on behalf of the Purchaser, the Parties agree that the Purchaser shall accept in its four guarantees as written of the manufacturer of the products sold to the goods to ETIS.
• In connection with the above-described guarantee, the sole obligation of ETIS shall at its discretion be the replacement or repair of the product or a defective part thereof recognised as defective by ETIS unless this method of reparation shall prove to be impossible or disproportionate. In order to implement the warranty, the Purchaser must inform ETIS within a maximum of one (1) month by registered letter with acknowledgement of receipt from the time of the discovery of the defect.
• The products supplied are not working and/or have broken down. It shall at its expense send the part judged to be defective, packed in its original packaging.
• The warranty shall not cover apparent defects. Defects and deterioration caused by fair wear and tear, an external accident, incorrect installation, improper use, faulty maintenance or an intervention by personnel who are not part of ETIS or who have not been appointed by the latter, as well as any modification to the product that was not planned or specified by the manufacturer are also excluded from this warranty.
• ETIS and the Purchaser have agreed that their respective rights, obligations and liabilities as provided for in this Order shall alone govern their rights hereunder.
• Accordingly, the remedies provided for herein in respect of or as a consequence of:
  (a) any breach of contract, or
  (b) any negligent act or omission, or
  (c) death or personal injury, or
  (d) loss or damage to any property

are the exclusive of any other remedy that either Party may have had or may have against the other at law or otherwise.

Article 8 – Intellectual property

Taking into account the status of ETIS acting on behalf of the Purchaser, the Purchaser agrees to respect the industrial property rights, if any, of the manufacturer who sold the goods to ETIS.

Article 9 – Confidentiality

The Parties undertake to keep strictly confidential any information concerning each of them, whatever it may be, and of which they may become aware during their commercial relationship, whether relating to the Order placed between the Parties, their commercial policy, their mutual business activities, their strategy or pricing.
They undertake to take every measure required with this end and consultants in order to maintain this confidentiality.

Article 10 – Fortuitous circumstances

The following are considered as Force Majeure or fortuitous circumstances, events occurring independently of the wills of the Parties, that they could not reasonably have foreseen, and that they could not reasonably have avoided or overcome, to the extent that their occurrence renders totally impossible the performance of the affected obligations.

Force Majeure shall not include events such as the insolvency of a Party or default in the obligation to pay any amount under the Order.

The following are exemplary cases of Force Majeure or fortuitous circumstances discharging ETIS from its liability for performing an obligation to deliver within the initially planned deadline: total or partial strike by its employees or usual forwarders, fire, flood, war whether declared or not, social disturbances including riots, roadblocks, strike or interruption to the electricity and/or gas supply, or disruption to supplies and/or services for which ETIS’s suppliers are responsible.

ETIS shall notify the Purchaser in writing, fax or email, within three (3) working days of the date of the occurrence of a Force Majeure event, the Order being automatically suspended from the date on which the event occurred. Similarly, when such Force Majeure event has ceased, ETIS shall notify the Purchaser accordingly.

Should a Force Majeure event occur, the delivery date(s) shall be extended by a period equal to the duration of the Force Majeure event plus a reasonable time to overcome the consequences of the Force Majeure event, and all additional costs and expenses incurred by ETIS, including without limitation expenses for securing and protecting and/or maintaining the product and/or services, shall be paid by the Purchaser to ETIS in addition to the Order Price ascertained at the date of the Force Majeure event.

Regardless of what might otherwise flow from these General Conditions of Sale, should the Force Majeure event last for more than eight (8) consecutive calendar days from the date on which it first occurred, ETIS shall be entitled by written notice to the Purchaser to terminate the Order. Such termination shall be without prejudice to Purchaser’s obligation to pay the due Order Price.

Article 11 – Conditions for services to be performed at purchasers’s premises

“Services” shall mean without limitation design, engineering and other specialist services ordered through ETIS by the Purchaser and the latter’s control and under its responsibility which shall be performed at Purchaser’s premises that is to say at a location under the control of the Purchaser for the purpose of performing the Services.

The Parties agree that in connection with the Services the role of ETIS is limited to the placing of the Order for the Services and that thereafter the Purchaser shall be exclusively responsible for the mobilisation, management, implementation including the Health and Safety of the personnel carrying out the Services, and demobilisation of the Services.

Article 12 – Liabilities

CONSEQUENTIAL AND THIRD PARTY LOSS

Notwithstanding any other provision hereof, ETIS shall not be liable to the Purchaser, and Purchaser hereby agrees to release, indemnify and hold harmless ETIS in respect thereof, whether based on the Order, tort (including negligence) or otherwise, for any consequential, indirect or incidental damages of any nature whatsoever, including, but not limited to, third party charges and costs howsoever arising, loss of anticipated loss of contract, loss of profit or revenue or loss due, whether or not foreseeable at the effective date of this Order, arising from the default of either ETIS or the Purchaser, or otherwise suffered as a result of entering into this Order.

In addition ETIS shall not be liable for any damage to property or legal persons caused by the merchandise, product and/or services being the object(s) of the Order after the same has been delivered and/or performed as the case may be, and whilst in possession of the Purchaser. Nor shall ETIS be liable for any damage to products manufactured by the Purchaser, or to products of which the Purchaser’s products form a part.

If ETIS were to be threatened with or were to incur liability towards any third party for such damage to property or legal persons as described in the immediately preceding paragraph, the Purchaser shall indemnify, defend and hold harmless ETIS in respect of the same.

The Parties agree that they do not intend that a person who is not a party to the Order shall have any rights to enforce or benefit from any term of the Order, and the Order shall be interpreted and construed accordingly.

OVERALL LIMIT OF ETIS LIABILITY TOWARDS PURCHASER

ETIS’s liability for damages and expenses hereunder or in any way related hereto, whether in an action in contract, tort or otherwise, will in no event exceed the amount of the Order exclusive of applicable Value Added Taxes.

Article 13 – Applicable law and settlement of disputes

• The Parties have agreed that the Order shall in all respects be governed, construed and interpreted in accordance with the Laws of France to the exclusion of any choice of law rules that would require the application of the laws of another jurisdiction, as well as to the exclusion of the 11th April 1980 Vienna Convention on the International Sale of Goods.
• In the event of any dispute arising out of or in connection with the order that cannot be resolved amicably or has not been the object of an amicable resolution, the Parties agree in writing request of either Party submit the matter to the Commercial Court of Tribunal de Commerce Pontoise, France for settlement, even if there is a plurality of defendants or if the case is a call upon a surety.
• ETIS may, however, take action before any competent court, especially in an application for an interim or emergency injunction.
• The Purchaser shall have no claim against ETIS, in contract or in tort, in relation to anything performed or delivered under the Order (including claims for defective services or goods), unless ETIS has been notified in writing of such claim within twenty-four (24) months of delivery of the services and/or goods as the case may be.

Article 14 – Ethical behaviour

The Purchaser shall acquaint itself and comply with the ETIS Code of Conduct, provided upon request, as may be updated or modified from time to time.
The Purchaser agrees to perform its contractual obligations under the Order with substantially similar standards of ethical behaviour.

END OF GENERAL CONDITIONS OF SALE