In the event of a contradiction or divergence between this translation and our company’s General Conditions of Sale, which are written in French, the French text will prevail.
These conditions (the “Conditions”) govern the sale of materials, spare parts and accessories (the “Equipment”), as well as the works and provisions of services (the “Services”) (hereinafter collectively designated the “Supplies”) by SOFRAME (the “Company”) to its customer (the “Customer”), who is deemed to be a professional acting in the context of its professional activity. The Conditions constitute the base of the commercial negotiation and prevail over any other of the Customer’s documents, in particular over any general conditions of purchase unless prior and explicit agreement is given by the Company. All orders, order confirmations or acceptances of estimates or work or repair orders by the Customer (the “Order”), irrespective of the method, imply and entail the express, unreserved acceptance of all the clauses and terms set out in the Conditions, from which they may not be exempted without the Company’s prior written agreement. If no such agreement is given, the Company will be bound only by what is expressly stipulated in the Conditions.
2. GENERAL PROVISIONS
The conditions, commitments or contracts granted by or placed with the Company’s representatives do not bind or commit the Company until the latter has given its written acceptance or confirmation.
All Orders are binding and constitute a work order, repair order, or purchase order; it contains in particular, if necessary, the authorisation of the Customer to carry out any modifications and/or adjustments of the motor vehicles which are entrusted directly or indirectly by the Customer to the Company for execution of the Order. More generally, these provisions apply to all goods entrusted to the Company by the Customer directly or indirectly. No deposit of entrusted goods shall be accepted by the Company outside of the site of DUPPIGHEIM, nor outside of its opening hours. Their provision is carried out at the exclusive expense of the Customer and under its sole responsibility. In no circumstances may any procedures or agreements concerning the entrusted goods that may have been made between the Customer, a third-party and/or the transporter be enforced against the Company, unless such procedures or agreements have been communicated in writing to the Company and are the subject of a formal acceptance by the Company at least seven days before the arrival of the entrusted goods. If no such agreement is given, the Customer shall be personally responsible for any complaints linked to these procedures or agreements, and shall hold the Company free of all costs and expenses that it may be led to bear for any reason whatsoever.
If it does not give a written agreement following the Order, the Company will not take sole responsibility for ensuring that the Equipment complies with the destination country’s (excluding the European Union and Switzerland) rules, standards and specifications. In no circumstances will the Company bear the cost of replacements and adaptation works imposed by changes in laws and regulations that have occurred after the acceptance of the Equipment, or where the Company has not been informed, prior to the Order, of the date on which such changes come into force.
The Customer will have sole responsibility and liability for all formalities with the competent authorities relating to authorisations of circulation, registrations, temporary or definitive licensing, customs operations and, more generally, all the administrative formalities required to use the Equipment, along with all the financial consequences that arise therefrom.
The Company may not in any circumstances be held liable for any administrative difficulties encountered by the Customer, and such difficulties may not be used as a reason for non-payment or deferred payment of the price.
3. QUOTE – WORK ORDER, REPAIR ORDER, OR PURCHASE ORDER OF MATERIALS, SPARE PARTS AND ACCESSORIES
A quote can be produced at the Customer’s request.
The costs of preparing this quote as well as any related costs will be invoiced.
Signing of the quote constitutes an Order.
The Company establishes the work order or repair order. It specifies the nature and the duration of the works to be carried out.
Signing of the work order or repair order constitutes an Order.
Signing of the quote of request of materials, spare parts and accessories constitutes an Order.
If a defect or a failure likely to present a danger for road safety is detected during the intervention, the Company shall inform the Customer of this so as to obtain its agreement to make the necessary repairs. Failing agreement from the Customer, the Company is authorised to hold the vehicle until signature by the Customer of a letter of waiver of claims.
4. PRICE, BILLING AND PAYMENT
The price of the Supplies is the price in force at the time the Order is placed, expressed in euros.
Unless otherwise agreed, prices quoted are net, transport not included, excluding taxes, on the basis of the tariffs communicated to the buyer.
All taxes, duties, levies or other services to be paid in application of French regulations or those of an importing country or a transit country are the Customer’s responsibility.
The prices are firm and are not subject to revision.
An invoice can be produced either for each Order, or for several Orders.
Unless otherwise agreed, invoices are payable within 60 (sixty) days, from the issue date of the invoice, with no discount for early settlement.
The Customer may be required to pay a deposit or full payment when placing the Order.
In all circumstances, the Company will retain all sums paid in respect of a deposit, even if the Order is cancelled, and in this case without prejudice to any damages that the Company may wish to claim.
Accepted payment methods are by bank transfer and bank cheque.
In the case of deferred or payment by instalments, payment as defined in this article means not simply handing over a cheque implying an obligation to pay, but its payment on the agreed due date.
4.4. DELAY OR DEFAULT OF PAYMENT
In case of late payment, the Company may suspend all Orders pending, without prejudice to any other course of action.
- Any amount not paid on the due date showing on the invoice automatically results from the day following the date of payment mentioned on the aforesaid invoice, in the application of late penalties. The penalty rate is set to at three times the legal interest rate. Late penalty payments are payable without a reminder being necessary.
- Moreover the Customer shall be required to pay a flat-rate sum of forty euros for each unpaid invoice to cover recovery costs in accordance with the applicable mandatory statutory provisions. However, if the recovery costs actually incurred by the Company are greater than forty euros, the latter reserves the right to claim additional compensation on supporting documents from the Customer.
In the event of non-payment relating to the sale of the Equipment, or of non-fulfilment by the Customer of any of his obligations such as, for example, the obligation of removal stipulated in Article 5, the sale may be cancelled due to the fault of the Customer if the Company sees fit (which means that the Equipment supplied but remaining unpaid must be immediately returned to the Company), which reserves the right to claim damages in addition.
This resolution will automatically take place thirty days after sending out a formal notice to execute but which remains, in full or in part, unchanged, notified to the Customer by registered letter with acknowledgement of receipt and indicating the intention to apply this clause.
No abstention or delay of the Company in the exercise of a right or of a remedy in relation to the Order can be interpreted as a waiver of this right or of this remedy.
When the payment is staggered, non-payment of a single instalment shall result in the immediate payment of the entirety of the debt, without formal notice.
In all the preceding cases, the amounts which would be due for other deliveries, or for any other reason, will become immediately payable.
In no case may payments be suspended or be the subject of any compensation without the prior written agreement of the Company. Any partial payments shall be charged against the amounts with the oldest due date.
5. DELIVERY – ACCEPTANCE – TRANSFER OF RISK
The delivery date mentioned on the Order is provisional. If the Customer is late in performing any of its obligations, and especially those linked to payment, the supply of the entrusted good(s) and/or the supply of technical information required to carry out the Order, the provisional date for delivering of the Supplies shall be postponed for at least an equal period.
The Supplies are delivered FCA from the DUPPIGHEIM factory (Incoterm CCI 2020). The Company will notify the Customer of the date on which of the Supplies for verifications with respect to their acceptance will be placed at its disposal and will then have the option of invoicing of the Supplies. Unless agreed with the Customer, the date of availability may not be earlier than the provisional delivery date. In no circumstances shall a delay in delivery of less than ninety days give the right to cancel the Order. The Customer must attend the verification operations within a maximum period of eight days after the date of provision; failing that, the Supplies are deemed accepted. The Customer shall inform the Company of the date retained for these verifications with a notice of at least two working days. The date of acceptance is deemed to be the delivery date as defined by the Incoterm FCA. Acceptance extinguishes any claim on the part of the Customer for all defects other than hidden defects and for all non-compliances in relation to the Order.
The Customer pledges to remove or have removed the Supplies immediately from their acceptance and in any event within a maximum period of thirty days following acceptance. Beyond this period, the Company reserves the right to claim from the Customer the expenses of storage or of parking set at a fixed price of two hundred euros per month, per item of Equipment and per entrusted vehicle, any month begun being due in full. Parking expenses do not in any case cover any expenses of upkeep or maintenance in operational conditions linked to prolonged storage, such as, for example, recharging of the batteries. Without prejudice of the preceding provisions, the Company reserves the right to implement at any time the stipulations of Article 4.
6. CONTRACTUAL GUARANTEE – LIABILITIES
The Equipment has a contractual guarantee of a duration of six months from the day when the Equipment is accepted, covering any defect originating from a design and/or of manufacturing fault. The duration of the guarantee may not be extended, suspended, or deferred. The application of the guarantee may not have the effect of extending the duration of guarantee of the Equipment. The guarantee is limited, at the choice of the Company, to replacement pure and simple or to the repair in its workshops of the parts acknowledged as defective during the period of guarantee. It may in no case extend to the consequences of any defect. The Company does not accept any expenses incurred outside of its workshops without its prior written agreement. In the event of replacement under guarantee, the parts replaced become the property of the Company. Consideration of a request of guarantee requires the establishment by the Customer of a written and substantiated request. Unless otherwise agreed in writing, the freight charges relating to the returns of the parts concerned remain the exclusive liability of the Customer. The implementation of the guarantee is irrevocably subject to the absolute respect by the Customer of all of its obligations, including in particular the use of the original spare parts and the submission of the request of guarantee to the Company within a maximum period of fifteen days from the occurrence of the defect.
The guarantee is excluded in particular in the following cases: negligence or malice by the Customer or by a third-party; use, operation and/or maintenance of the Equipment not in conformity with the manuals and/or instructions of the Company, the manufacturer, or best industry practices; the user of the Equipment does not possess the professional competence usually required for the use, operation and/or maintenance of the Equipment; breach of the laws and/or regulations concerning the use, operation and/or maintenance of the Equipment; transformation or modification of the Equipment by the Customer or a third-party without the Company’s prior authorisation; faulty repair of the Equipment by the Customer or a third-party; defect arising from a fault in the entrusted goods; normal wear and tear of the Equipment or of the vehicle.
Staff travel or towing is in particular excluded from the scope of application of the guarantee.
In the event of transformation or of modification of the Equipment by the Customer or a third-party without the Company’s prior authorisation, the guarantee is permanently forfeited.
The Services are performed in accordance with applicable standards and with all the care required. In the event of established defect of the Services, the Company shall only be obliged to undertake at its expense the necessary repairs, to the exclusion of all other compensation of any kind whatsoever. If it is proven that the fault in the Equipment and/or of the Services causes a direct personal definite material loss, both current and foreseeable, the Company shall, up to the limit of its own responsibility, bear the cost of the repair of the material damage caused to the property of third parties or of the Customer.
For all losses, events, incidents and all causes combined, the total amount of the compensation is limited for each Order to the price of the Order. Without prejudice to the mandatory statutory provisions which may apply, these provisions define the entire extent of the Company’s responsibilities. The Customer shall vouch for the compliance of its insurers and all third parties in contractual relationship with it, with these restrictions.
The term “established” means (i) recognised by the Company or (ii) established by a definitive court ruling.
The Customer is alone liable for all the consequences of any non-conformity of the goods entrusted to the Company for the execution of the Order.
It is up to the Customer, if necessary, to remove from the vehicle all personal items before entrusting it to the Company. Otherwise, the Company shall not be held liable in the event of loss, theft or breakage of a personal item.
7. RESERVE OF OWNERSHIP
|The transfer of ownership of the Equipment is expressly dependent on the payment of the price in full. In the event of non-payment or late payment, the Company will have the right to re-take possession of the Equipment at the Customer’s expense. The provisions of this article do not prevent the transfer of risk to the Customer, from the moment of delivery, particularly the risk of theft, loss or damage, in application of the FCA from site of shipping (Incoterm CCI 2020), of the Equipment subject to reserve of ownership, and of any damage that it may cause. In the event of a garnishment or any other intervention by a third party involving the Equipment, the Customer must immediately inform the Company to allow it to oppose the intervention and preserve its rights. The Customer furthermore agrees not to use ownership of the Equipment as a security or guarantee. If it decides to sell the Equipment, the Customer agrees to either pay the balance of the price due to the Company immediately, or to inform the buyers that the said Equipment is encumbered by a reserve of ownership clause, and to advise the Company of the sale so that it can preserve its rights and, where necessary, exercise a claim on the sale price vis-à-vis the buyer. In the event of insolvency proceedings, the Company reserves the right to claim the Equipment that has been sold and not paid for.|
All information which may be exchanged in the context of performance of the Order or its negotiation (hereinafter referred to as “Information”) will be considered to be strictly confidential and may not be disclosed to a third party without the prior written consent of the providing party. The Information cannot be used for other purposes than the negotiation of the Order or, if it is concluded, for its performance. The confidentiality obligations with regard to all Information shall cease when this Information comes into the public domain without infringement of these provisions.
9. INTELLECTUAL PROPERTY
The Customer recognises that, subject to the rights of third parties, the intellectual property rights, whatever their nature, and the know-how used for the production, sale and after-sales support of the Supplies, or incorporated into it or relating to it (hereinafter referred to as the “Intellectual Rights”), shall remain the sole property of the Company, and under no circumstances shall the transfer of ownership of the Supplies be considered as a transfer of the Intellectual Rights. This is true particularly, but not limited to, all the manuals and all the instructions delivered with the Supplies, and all drawings, specifications, descriptions and illustrations supplied, communicated or distributed by the Company in any form and in any manner whatsoever.
If new know-how or a new invention likely to give rise to intellectual property rights (hereinafter referred to as the “New Rights”) were to be extracted from the Supplies by the Customer, or were to derive from the performance of the Order in any manner whatsoever, the Customer recognises that the New Rights shall be exclusively owned by the Company.
10. PERSONAL DATA
Information collected about natural persons will only be processed by the Company for the needs of administrative and contractual management or of sales and marketing initiatives or to satisfy legal or regulatory obligations. The legal basis for processing personal data is the legitimate interest of the Company, as this data is necessary in order to carry out its sales and marketing activities.
In accordance with the GDPR and the French Data Protection and Freedom of Information Law, the Customer has the right to access, rectify, block, restrict and delete data concerning it and to state its requirements concerning the fate of its data in the event of its death. To exercise its rights, the Customer should address a request together with proof of identity by post: 29 rue du 14 juillet – CS 50191 – 67980 HANGENBIETEN (France) or by email to email@example.com. The Customer also has the right to lodge a complaint with a supervisory authority.
11. ASSIGNMENT – SUBCONTRACTING
Orders may be executed by an assignee or a subcontractor of the Company.
12. FORCE MAJEURE
The Company will not incur any liability for having failed to fulfil an obligation, or for having fulfilled it partially or late, if such violations or delays have been caused by a case of ‘force majeure’. Total or partial strikes inside and outside the Company, war, lock-out, bad weather, epidemics, the blockage of means of transport or supplies, earthquakes, fire, storms, floods, flood damage, government or legal restrictions, accidents or events of any kind (affecting the Company or its suppliers) leading to total or partial stoppages in production, delivery or activity, are considered in particular to be cases of ‘force majeure’.
13. NULLITY OF A CLAUSE OF THE GENERAL CONDITIONS OF SALE
The nullity of a contractual clause does not entail the nullity of the Conditions.
Should the Company temporarily or permanently fail to apply one or more of the clauses of the Conditions, this cannot be construed as a waiver on its part of the other clauses of the Conditions which continue to have effect.
14. APPLICABLE LAW – COMPETENT COURTS IN THE EVENT OF A DISPUTE
|These Conditions as well as the sales are governed solely by French law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods signed in VIENNA on 11 April 1980. Any dispute relating to the interpretation or execution of these Conditions, as well as the conclusion, execution or termination of the contracts of sale, will be referred to the COURTS IN STRASBOURG (France), which have sole competence in the matter, subject to any contrary mandatory provisions of French law with respect to competence.|