Terms of Sales
Unless specific conditions to the contrary are clearly indicated, all orders automatically imply acceptance by our customers of our general terms and conditions of sale listed below:
1 – SCOPE
Article L. 441-6 of the French Commercial Code provides that general terms of sale constitute the sole basis for business negotiations. They include these Terms and Conditions of Sale (the “Terms”), which govern the relationship between ECLORE ACTUATORS SAS, a company with its registered office at 2 rue Robert Le Ricolais 44300 NANTES (hereinafter « ECLORE » or « our Company ») and any business customer (hereinafter the “Customer”). They automatically apply to all sales of goods (hereinafter the “Products”) and associated services by ECLORE to the Customer. The Customer fully and unconditionally accepts them and represents that it has read them in full, and that, accordingly, it waives all rights to avail itself of any conflicting document, notwithstanding any clause or stipulation to the contrary that may be specified on its purchase orders, its correspondence, or any other document.
They constitute the entirety of the rights and obligations of ECLORE and the Customer (collectively, “the Parties”). No other terms or conditions may be added to them, unless otherwise agreed upon in writing by the parties.
If ECLORE accepts any special terms and conditions, this shall not constitute an implicit waiver of the remaining stipulations of these Terms, which will retain their full force and effect.
2 –DEFINITIONS
“Products” means all machines, equipment, materials, products and parts manufactured or sold by our Company, and any accompanying documents, as defined in the order.
“Services” means any technical service rendered by ECLORE staff, whether on the Customer’s site or on ECLORE’s premises, such as, but not limited to, maintenance, hire, repairs, auditing, installation, or supervision of installation.
“Project” refers to the project described in the Order, which includes all or part of the Services.
“Schedule” refers to the schedule defined in the Order or updated by ECLORE as appropriate.
3 – OUR SALES PROPOSALS
Our sales proposals do not constitute an obligation. The sales contract is only considered binding upon ECLORE’s written acceptance of the order or contract. The terms of our quotes and sales proposals are valid for a period of one (1) month from issue, unless otherwise provided for in the sales proposal.
Sales proposals that require significant preparation, studies, or special trials may be invoiced. The Parties will agree, in advance and in writing, on the financial terms of carrying out such work. In particular, if a sales proposal involving equipment repairs is not followed by a corresponding order, the costs pertaining to the proposal will be invoiced if on-site visits have been made or if equipment has been assessed, disassembled, or reassembled.
The details included in our quotes, studies, plans and drawings, catalogues and advertising materials are provided for information only. They are not binding, and cannot under any circumstances give rise to any claim or price reduction whatsoever.
4 – ORDERS
Orders require the prior existence of a customer account. In order to open an account, our Company’s Sales Department must issue its approval. To this end, the Customer shall furnish an up-to-date company registration certificate (K-bis) and provide any information requested by our Company, particularly any information needed to prove its solvency.
Any order placed either directly or via a representative or agent constitutes a binding and irrevocable offer to purchase the Products to which it relates. Our acceptance of an order must be made in writing.
The Customer, who ultimately determines the technical specifications, must give full and accurate details of all requirements. Accordingly, our liability is limited to performance in accordance with these specifications alone. If the Customer modifies the initial specifications, we will not be held liable as a result of such modifications, absent written approval thereof from our Company. Any advice or recommendations that we may make are solely for information purposes, and we incur no liability whatsoever for them.
A modification can only be made to an order in progress if a written request has been made by the Customer and accepted by ECLORE in writing.
ECLORE reserves the right to change the delivery lead time and price.
Full or partial cancellation of an order or postponement of the delivery date as a result of the customer’s actions may result in the Customer being invoiced for the cost of any equipment already manufactured, plus a charge of ten percent (10%) of the total order price excluding taxes.
5 - PRICES
Our prices are quoted net, with no discount available for early payment of invoices, exclusive of VAT, for unpackaged equipment, supplied ex-works from our factories (EXW: ICC Incoterms 2020). They are valid for any order that reaches us within the period indicated in our sales proposal. They are set in accordance to the eco- nomic conditions at the time our sales proposal is prepared and may be revised in accordance with the applicable law. Any additional costs, or costs resulting from the modification of the terms of the order after the order is accepted by means of an order confirmation, shall be payable in addition to the cost of the order.
Unless otherwise stipulated, all incidental costs such as shipping and handling, customs duties, and insurance shall be borne by the Customer.
The Customer is responsible for payment of all duties, taxes, levies, and service costs payable under applicable laws and regulations.
6 – LEAD TIMES
The delivery lead time is counted from the date of our order confirmation. If this confirmation requires the payment of a deposit, the lead time shall run from the date that this deposit is paid. Unless otherwise agreed, the delay in the delivery of an item of equipment with respect to the scheduled lead time shall not result in any compensation or in the total or partial cancellation of the or- der, or in the rejection of the equipment, or in a reduction of the price.
If the Customer unilaterally cancels the order, we reserve the right to invoice the cost of the equipment based on the stage of manufacture, in addition to a charge of ten percent (10%) of the total price of the order (excluding taxes) and full storage costs.
Where late penalties are expressly accepted by ECLORE, they may not under any circumstances exceed five percent (5%) of the value of the equipment still remaining to be delivered. Payment of these penalties will release ECLORE from the obligation to accept any other penalty (financial or otherwise) applied in the event of delays. ECLORE shall automatically be released from its obligations related to initially agreed-upon delivery lead times, including penalties:
– If the Customer does not comply with the payment terms;
– If the information, technical specifications, or plans provided by the Customer are incorrect, unusable, or late;
– If modifications are requested by the Customer after the order has been logged;
– If the Customer does not approve the plans within five (5) days, the Parties will agree upon a time frame on the basis that the Customer will have one opportunity to make comments for revision and resubmission of the plans. After this approval deadline, the plans and documentation will be deemed accepted by ECLORE.
The Customer can only issue a single rejection of a document, and can do so only if it contains an error or omission, if it does not meet the requirements of the order, if not all the initial remarks have been taken into account or if it is clearly in conflict with good engineering practices. This rejection must be explained in detail in writ- ing by the Customer, by the deadline specified in the previous paragraph.
– If ECLORE or its subcontractors are unable to meet all or part of their obligations in the case of one of the exceptional circum- stances or force majeure events set out in paragraph fifteen (15), of which the Customer will be kept informed.
7 – DELIVERY
We reserve the right to fulfil orders using partial deliveries. Delivery is always deemed to be carried out in our factories or warehouses, regardless of the specifications of the contract in relation to payment of transport costs. Delivery is made by direct collection of the equipment either by the Customer, or by the carrier named by the Customer in the contract, or failing that, the carrier chosen by us. If instructions on the destination cannot be followed or have not been provided, delivery is considered to have been made by simply advising the Customer that the equipment is ready for collection, with the equipment invoiced and stored at the Customer’s own risk and expense.
In addition, should this occur, or in the event that the order is not collected, the storage of orders held for collection in our factories or with our suppliers may result in a charge of zero point five percent (0.5%) of the price of the order per week commenced, calculated beginning on the date the order was cancelled, postponed, or made available for collection, with a grace period of one week. Irrespective of the means of transport and the payment terms for the cost of transport, whether or not freight is included, no liability shall be accepted in the event of rust, missing parts, damage, or deterioration of any kind in relation to the equipment after delivery. The Customer or the recipient is responsible for taking any legal action required against the carrier or the insurer within a reasonable period of one week.
In the case of Incoterms EXW, sole responsibility for loading lies with the carrier or in any event with the Customer. Involvement of our staff in loading operations and the use of our equipment for this purpose will only take place at the request and, in any event, under the supervision, direction, and sole responsibility of the car- rier or, in any event, under the responsibility of the Customer. Any complaint relating to a visible defect or non-compliant ship- ping can only be taken into consideration if it is sent to us within three (3) days of the date of receipt or delivery. The Customer is responsible for lodging complaints against the carrier in accordance with the procedures and within the time limits set out in the French Commercial Code.
8 – ACCEPTANCE AND CONFORMITY
The Customer must send any complaints relating to the conformity of the equipment by registered letter with proof of receipt within fifteen (15) days of their collection by the Customer. If a complaint is not made in relation to visible conformity defects within this period, the equipment will be deemed to have been accepted and the Customer will have no further right to claims against us. Terms relating to the acceptance of equipment are set out in the contractual documents for the order.
For large-scale production, when pre-production parts are subject to acceptance by the Customer before fulfilling the first order, acceptance is deemed to have been granted if no written observations are provided within fifteen (15) days of the date on which the Customer received them.
Tests may be carried out at the request of the Customer, in the factory before delivery. The Customer will be responsible for the cost of such tests.
In cases where, after delivery, the Customer contests the characteristics or performance of the equipment, the Customer may re- quest that ECLORE conduct testing, on site if possible, or ECLORE may request the opinion of a third party. If this occurs, the Customer shall sign an agreement with ECLORE in which the Customer agrees to pay the amounts stipulated therein if it is shown that our services were adequately provided.
The performance or characteristics of the equipment will be tested and guaranteed in accordance with contractual technical specifications, or failing this, in accordance with the requisite standards applicable at the time of the order confirmation and, in the absence of requisite standards, in accordance with best practices and the terms specified by the manufacturer, if the manufacturer is not ECLORE.
9 – WARRANTY AGAINST LATENT DEFECTS
Our Products are covered by a warranty from the date of delivery under the terms below for a period of twelve (12) months against all latent manufacturing defects making them unfit for use or significantly curtailing their use. Unless agreed in writing by ECLORE, the Customer will not benefit from any warranty other than the one stipulated in the Terms.
To benefit from the warranty, the Customer must prove that the equipment is faulty. ECLORE must be informed within a maximum of ten (10) days after the discovery of the defects in question. The Customer agrees to give ECLORE every opportunity to identify, inspect, and remedy the defects. ECLORE agrees to remedy defects originating from a fault in the design, construction, or materials themselves, subject to the following limitations:
– Labour costs associated with the removal and installation of these parts will be borne by the Customer.
– Ownership of the parts replaced will revert to ECLORE.
– Replacement parts supplied free of charge will be provided ex-works. (INCOTERMS EXW)
This warranty shall not apply where the Products are improperly used, put to a specific use not expressly approved by ECLORE, not used in compliance with the guidance provided (installation, handling, storage, and maintenance recommendations including be- fore the product has been put into operation), and more generally, when the defect is in any way due to the Customer’s actions or when the Customer has dismantled or modified the Products sold or arranged for a third party to do so. This warranty shall also not apply where defects are the result of materials supplied by the Customer, specific design specifications for the Products imposed on ECLORE by the Customer, or incorrect specifications or documents received from the Customer.
The costs for repairing Products or parts that are defective due to abnormal use, force majeure, normal wear and tear, poor cleaning/maintenance, or use of unsuitable cleaning/maintenance products will be borne in full by the Customer. The Customer agrees to compensate ECLORE for any costs incurred as a result of an unjustified complaint in relation to a defect.
Work to repair items or restore them to good working condition are not covered by the warranty. In all cases, the warranty provisions specified above operate to the exclusion of any damages or compensation.
10 – BILLING AND PAYMENT
Unless special terms apply, ECLORE invoices shall be payable on receipt and at the latest within forty-five (45) days net following the date of issue of the invoice. Payment must be made in euros. No discount is given for early payment unless special terms are specified on the invoice.
If an order includes multiple deliveries, the invoices associated with each of the deliveries will be payable when the corresponding in- voice is issued.
If ECLORE’s credit insurer refuses cover for the Customer, the Customer will be liable for the immediate payment of amounts due. If payment of amounts due is not made within a week, the Customer shall return the Products to ECLORE without delay. Lastly, until full payment of all invoices issued by ECLORE, ECLORE reserves the right to retain all Products ordered by the Customer. ECLORE reserves the right to use any payment received by the Customer to settle the Customer’s previous debts, including late payment interest, pro- vided that ECLORE sends the Customer the details of the debts settled and those that remain outstanding.
The Customer is prohibited from using events that are outside of the control of ECLORE as grounds to delay or stop payment. In the event of a dispute, the Customer must not exert pressure on ECLORE by unduly holding back disproportionate outstanding sums. Payment is considered to have been made when the funds become available to ECLORE. For cheques, payment is considered to have been made when the cheques are definitively deposited. Payment delays of any kind will, automatically and without the need for a formal request, result in the application of late penalties calculated at three (3) times the legal interest rate plus ten (10) percentage points, in addition to a fixed debt-collection penalty of forty (€40) euros. These penalties are due from the due date of the invoice until the day the total amount owed (including interest) is paid. Furthermore, any delay in payment will entitle ECLORE to suspend all orders and deliveries in progress.
Similarly, when ECLORE has agreed that an order can be paid for in instalments, non-payment of a single instalment will automatically render the Customer liable for immediate payment of all of its debt to ECLORE, without need for a formal request.
In the event that mutual claims and debts arise between the Parties, the Customer will not be entitled to set off invoiced amounts in the absence of a definitive court ruling holding that ECLORE owes money to the Customer. The Customer shall not apply deductions or set- offs to amounts owed to our Company, including as a penalty or rebate. Any unilateral deduction or set-off applied by the Customer (e.g. for late delivery, unavailability, missing articles, or nonconformities) will constitute non-payment as described in article 11 hereof, with all of the ensuing consequences. If ECLORE deposits payments that include deductions or set-offs, in particular for penalties invoiced by the Customer, this shall under no circumstances constitute agreement or acceptance of deducted amounts.
11 – INTELLECTUAL PROPERTY AND CONFIDENTIALITY
The Customer agrees to keep confidential all documents, studies, data, and software, provided or made available to it and any information of a technical, commercial, or financial nature disclosed verbally, in writing, or electronically, before, after, or at the time at which the order is placed. Accordingly, the Customer must not send, copy, reproduce, or use the aforementioned documents and information without our prior written permission. These documents must be returned to us upon request.
ECLORE’s studies, data, and documents of any kind, in particular those that modify the Customer’s specifications and add value to the use of the product, will remain the exclusive property of ECLORE.
13 - LIABILITY
Apart from the warranties expressly set out above, and the statutory warranties, ECLORE cannot under any circumstances be held liable for payment of compensation to the Customer or third parties for any loss or damage suffered. ECLORE may only be held liable in the case of a particularly serious breach of an essential duty under the contract. In any event, ECLORE’s liability to the Customer, irrespective of the nature and cause of this liability (including that resulting from a faulty Product), is limited to the purchase price (excluding taxes) and fees paid by the Customer for the Product in question. This limit shall not apply to damages for personal injury or in the case of serious or willful misconduct.
The Parties agree that they will not be liable for payment of compensation for losses ordinarily considered to be indirect or intangible, such as loss of orders, loss of customers, increase in the cost of raw materials, loss of revenue, loss of profit, or penalties imposed by the end Customer.
14 – TRANSFER OF TITLE AND TRANSFER OF RISK
Transfer risk shall occur:
- On delivery, if ECLORE is responsible for transport.
- When the goods are made available at our warehouses in the case of Incoterms EXW or FCA.
- If Customer instructions on the destination cannot be followed or have not been provided, the transfer of risk shall occur by simply advising the Customer that the equipment is ready for collection, with the equipment invoiced and stored at the Customer’s own risk and expense.
Transfer of title will be deferred until full and on-time payment of the price of the equipment by the agreed date is made in accordance with the conditions described in the Terms or special terms and conditions, if applicable.
15 – FORCE MAJEURE
ECLORE reserves the right to modify, suspend, or cancel the orders in full or in part, without being liable to the Customer for payment of damages, penalties, or any other form of compensation or apportionment of the Customer’s loss, in the event of force majeure preventing us, even partially, from fulfilling our obligations, in spite of reasonable efforts by ECLORE. In addition to occurrences that meet the conditions for force majeure events as defined by applicable case law, force majeure will include any and all protests, wars, full or partial strikes, lock-outs or other labour disputes, dam- age, riots, epidemics, fires, floods, IT failures, changes in standards or regulations, denial of export/transit/import resulting from the decisions of any French or international public authority, lack or interruption of transport, lack of power, shortage of supplies, shortage of raw materials, serious failures on the part of our suppliers or subcontractors, accidents, or any other event not attributable to our Company, irrespective of the cause, that hinders the normal operations of our factories. If a force majeure event occurs, deposits already paid by the Customer will be non-refundable. The equipment will remain available to the Customer in its condition on the day of the occurrence of such an event, in return for payment of the price of the equipment calculated on a pro-rata basis in accordance with the stage of manufacture on the day of the occurrence of the event, minus any deposit already paid.
16 – CUSTOMER’S OBLIGATIONS
The Customer shall not modify the Product in terms of its safety. In particular, the Customer shall not remove warnings relating to the risks associated with improper use.
Should the Customer fail to meet this obligation, the Customer shall indemnify and hold harmless ECLORE against all third-party claims relating to the Customer’s failure to comply with this obligation.
If, in the case of a faulty Product, ECLORE is required to recall the Products or issue a warning, the Customer shall do everything in its power to implement the measures recommended by ECLORE. If the Customer is responsible for the defect and the ensuing damage, the Customer will bear the costs of the warning or of the Products’ return.
The Customer shall immediately inform ECLORE of any risks that it identifies during use of the Products and of any potential Product defects.
The Customer shall comply with all export restrictions and export control policies, in particular the policies of the European Union, France, and the USA. The Customer agrees, in the case of re- sale/transfer of the delivered Products, to inform its purchaser of the legal conditions specific to export controls and to inform the purchaser of the obligations arising therefrom.
In particular, the Customer agrees not to use the Products in any way that is directly or indirectly associated with NBC weapons or their delivery systems. The Customer also agrees not to send these Products to be used directly or indirectly for military purposes in a country subject to an arms embargo. The Customer agrees not to sell, export, re-export, deliver, transfer, or otherwise directly or indirectly make the delivered Products accessible to people, businesses, entities, organisations, or countries, if this will contravene the laws applicable to export restrictions in the European Union, France, or another country, for example export/re-export conditions for the USA.
Upon request, the Customer shall provide the final possession documents for the Product to prove the final destination and the in- tended use as part of an export authorisation application.
The Customer will be fully liable in the event of damage suffered by ECLORE as a result of its non-compliance with export control policies or with the export/re-export conditions applicable in the USA.
The Contract and its obligations shall be performed on the condition that the export and transport authorisations, or other authorisations required by the laws of foreign trade or by competent authorities, have been issued and that there are no other legal restrictions pre- venting such performance as a result of export control laws.
The Customer will be liable for all taxes, charges, and duties associated with Services outside France.
17 – JURISDICTION AND APPLICABLE LAW
If the Customer wishes to transfer its rights and obligations to a third party, it must obtain written consent from ECLORE.
The legal relationship between the contracting Parties shall be governed by the laws of the country in which ECLORE has its registered office. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
The courts of the place of the registered office of ECLORE will have exclusive jurisdiction in the event of a dispute arising from or in relation to the commercial relationship between the contracting Parties.
ECLORE reserves the right to bring legal action in the jurisdiction of the place of the Customer’s registered office and before any other court of competent jurisdiction.