I. General Provisions
The General Terms of Sale (GTS) define the rights and obligations of DYNA SHOCK SYSTEM (the ‘Vendor’) and of its customers (the ‘Buyer’), and apply to all contracts or orders (hereafter ‘Contract’ or ‘Order’) between the Vendor and a Buyer, (the ‘Parties’), for the sale of the Vendor’s products and/or services (the ‘Products’), subject to particular amendments to the GTS specifically negotiated and agreed upon in writing by the Parties within the framework of a specific Order. Thus, inconsistent provisions contained in a buyer’s document purporting to define general or particular terms of purchase or sale shall not be construed to amend, modify, supplement or supplant the GTS, as any such inconsistent provision or term shall be deemed inapplicable to any Order by a Buyer for any of the Vendor’s Products. So, such conflicts with such a Buyer’s documents will be governed and resolved in accordance to the GTS.
II. The Contract
The Buyer is entirely responsible for matching its Order with the technical manual or specification describing a Product, and all other specifications essential to the Products’ manufacture and future intended utilization.
Unless otherwise provided in an offer (an ‘Offer’) by the Vendor for any of its Products, the Buyer must accept an Order within ninety (90) calendar days of the date of its issuance. Thereafter, such Offer shall not bind the Vendor unless the latter expressly agrees otherwise in writing.
An Offer is deemed made by the Vendor for the supply of an indivisible whole of various Products/Quantities detailed therein. An Order binds the Vendor only if it accords with the Vendor’s last Offer.
III. Applicable Law
Unless expressly agreed otherwise by the Parties, any litigation relating to sale and/or delivery by the Vendor, or other execution of an Order, including warranty claims and/or plurality of defendants, is within the exclusive jurisdiction of the Court of Pontoise (France).
All matters concerning an Order will be determined in accordance with French law, excluding provisions of French private international law.
Delivery periods do not begin to run before the Vendor accepts (‘Acknowledgement Receipt of Order’) an Order. A delivery period begins to run as of the date when the last of the following occurs:
- Receipt by the Vendor of all information necessary for execution of an Order and/or
- Receipt of an Order’s pre-payment and/or
- Receipt of Buyer’s approval on the drawing.
V. Place of Delivery and Assumption of Risks
Unless otherwise stipulated with the Buyer when an Order is accepted, the Vendor will deliver the Products “Ex Works” International Chamber of Commerce, Incoterms 2010).
All risks of loss or damage to the Products are assumed by the Buyer from the moment they are placed at its disposal by the Vendor at the agreed upon place of delivery and within the time
VI. Delay of Delivery
I f the Parties agree upon a delay penalties clause, such clause shall not apply to the related and entire Order but only to the Products affected by a delivery delay.
A delay penalty clause included in an order shall always apply: only to a delay exclusively attributable to the Vendor or its subcontractors; only after prior written notice by the Buyer; and only after the expiration of a fifteen(15) calendar dates grace period, beyond the contractual delivery date, within which such a delay penalties clause shall be inapplicable. The maximum of any such penalty for delayed delivery on Products shall never exceed five percent (5%) of said Products’ order price, before taxes. Moreover, any such delay penalty clauses shall always be deemed Buyer’s sole and exclusive remedy in respect of said delay and to exclude any other compensation of whatsoever kind and on whatsoever legal ground.
In no circumstance shall a delay of delivery be deemed to justify the termination or cancellation of an Order.
Prices are always stated as amounts unitary, net of taxes, or any other charge, for bare Products placed at the Buyer’s disposal on the Vendor’s premises. All costs of packing, handling, shipping (whether surface, maritime or air), placing on board, insuring, etc., will be invoiced in addition. The buyer will pay for all rights, taxes and other official charges, as well as the duties and expenses for customs formalities for export and import of goods and, if necessary, transit abroad. The Buyer will advance to the Vendor whatever part of said costs, charges or expenses the latter may be requires to pay, so that the amount paid to and retained by theVendor is the Price net of taxes. The taxes due at the time of invoicing are invoiced and payable in full at the time of delivery. To take advantage of provisions suspending the payment of taxes, the Buyer may have to provide the Vendor with the export documents officially required at the time it places its Order. Late submission of said documents shall not be used by the Buyer to withhold payment of invoices in accordance with the Contract, including taxes, whether in whole or in part. Refund of exonerated taxes and accounting revisions will occur only after receipt of such documents.
Unless otherwise stipulated in the terms of acceptance of an Order, quoted prices always mean ‘Ex Works’, in accordance with the Incoterms 2010 of International Chamber of Commerce.
The Buyer is responsible for paying any increase in the cost of rights, taxes, levies and stamps occurring after placement of an Order.
Unless expressly specified otherwise in the Offer, prices are payable net, no later than thirty (30) days of the invoice issuance date. The Vendor reserves the possibility of assigning its receivables to a collection or factoring agency.
The mode of payment and possible pre-payment shall be expressly agreed upon in the Contract.
The Vendor reserves the right, under all circumstances, to demand that the Buyer pay by transfer or bill of exchange. The Vendor accepts payments by promissory note.
The Vendor reserves the right to demand payment by check upon delivery of the Products if the Buyer’s account is in arrears or if the Buyer presents a risk of insolvency.
As compensation for the prejudice suffered as a result of said late payment(s), the Buyer will pay the Vendor without delay a sum equal to 3 time the legal rate of interest applied to the entire outstanding unpaid balance, such sum to be due the day following the invoice date of the late payment in question, without necessity of a reminder.
Notwithstanding resort to the sanction provided for above, non-payment of an invoice when due, whether partial or in full and for whatever reason, entitles the Vendor to cease delivering Products and/or to stop all work, without notice or other formality. Such a decision, a matter of entitlement attributable to the Buyer, entails the right retroactively to cancel existing contracts, without affecting the Vendor’s right to compensation, or possible damages together with interest.
IX. Reservation of Title
The transfer of title to delivered Products shall occur only after the Vendor receives full payment of the price and auxiliary charges, in accordance with French laws 80-335 of May 12, 1980, and 94-475 of June 10, 1994. This reservation of title does not prevent transfer to the Buyer, upon the Products’ delivery, of all risks of loss and deterioration, as well as of damage they might occasion. If the Buyer fails to make a payment when due, the Vendor may reclaim his specific Products held by the Buyer.
Before acquiring title of the Products, the Buyer may neither grant any security interest therein to a third party, nor transform or resell them, without the Vendor’s prior written consent.
The transfer of risks being effective as of delivery, the Buyer shall assist the Vendor in any action the latter may be required to take in order to protect its rights of ownership. The Buyer commits itself to ensuring the Products as of their delivery, with the Vendor as beneficiary, against all risks that might encounter or cause. The Buyer commits itself, under all circumstances, to maintaining delivered Products in such a manner as to avoid any confusion about their ownership by the Vendor.
X. Guarantee and Civil Liability
The Vendor’s responsibility is limited to delivering Products in Conformity with the plans and technical manual agreed to by the Parties.
All Products are warranted to be free from defects in material and workmanship under normal use and service for a period of one (1) year as of the information of availability of Products.
For the repair Service the replaced components or other services are warranted for six (6) months as of the date of availability.
In the event a Product is founded defective, the Vendor shall be responsible only for repair or replacement of that specific product, pure and simple, by implementing logistical means as to which it shall be the sole judge, without any other form of recourse or compensation against the Vendor. Excluded from all guarantees are defects or damages resulting from storage or use of Products by the Buyer or its customers under conditions either anomalous or not in conformity with accepted norms. Are also excluded from the warranty, normal wear of the equipment, damages due to accident, wrong working, carelessness or irrational use, compensations or participations, of any natures, as necessary labor for disassembly of the Product, immobilization of the installation, direct or indirect prejudices on people and goods, transport cost in and back. Any repair of a Product, including one found defective, done without the Vendor’s prior consent, shall result in loss of all guarantees, as well as of any right of recourse against the Vendor. It is highly advised not to try to dismount, to machine or to weld the Product. It is completely forbidden to cut or saw the product that is under high pressure. The guarantees defined above cover only repair or replacement of delivered Products found defective by the Vendor. The Vendor will not accept return of any Products without its prior written authorization. The interventions by virtue of the warranty cannot have as effect to extend it.
The Buyer shall be presumed to have taken delivery of the Products within fifteen (15) days of the readiness information of the Products. Thereafter, in accordance with article 1642 of the French Civil Code, he Buyer shall presume to have accepted the Products with all possible defects apparent therein.
Any claim must be addressed to the Vendor’s sales in charge of the Buyer’s Order. Any Products returned by the Buyer must be addressed to the Vendor’s factory. The Buyer shall bear all risks concerning the return of any Products until it finally arrives in the Vendor’s factory.
Any claimed defect must be established by evidence. If the Products are found to be defective, the Vendor reserves the right to cure said defect(s).
XII. Access to the Vendor’s Premises
The Buyer may visit the Vendor’s premises only upon terms set by the Vendor. No visit shall be allowed without prior written request by the Buyer addressed to the Vendor giving at least one month’s advance notice of such visit.
Any such visit may be only to verify proper execution of the Buyer’s Order, as limited by the need to protect the Vendor’s know-how and trace secrets as well as the rights of third parties. The costs to the Vendor for such visits shall not exceed what is reasonable within the framework of the Parties’ Contract.
The Vendor reserves the right to entrust any part of an Order to one or more subcontractors which it may select at its discretion.
XV. Cancellation Termination
A simple delay in delivery, nonobservance of a procedure, or any cause beyond the Vendor’s reasonable control, such as one attributable to a third party, which makes it impossible for the Vendor to fulfill its contractual obligations, shall be deemed to justify neither a request for any sort of compensation, nor the cancellation or termination of all or part of an Order by the Buyer.
The Vendor shall have the right to terminate the Contract if the Buyer is in bankruptcy or liquidation proceedings, or in the event a significant change occurs in the Buyer’s legal circumstances undermining its solvency. However, termination of a Contract shall not reduce the Buyer’s debts to the vendor.
If the Buyer, for its own reasons, unilaterally cancels or terminates all or part of the Order, it shall immediately pay to the Vendor financial compensation, bound to the costs engaged for this Order.
The termination signed with the Vendor’s subcontractors shall be considered into the calculation of the indemnities.
As of the acceptance of these GTS by the Customer, Dyna Shock System reserves the right to use the name of the Customer for reference in any advertising, commercial and institutional document (in particular on its Website), this that the Customer expressly declares to accept.