1 - Purpose
These general terms and conditions of sale apply ipso jure to all orders for Equipment placed by the "Customer" with the NOUVELLE FOG AUTOMOTIVE SAS (hereinafter referred as "FOG"). FOG and its Customers are referred to below as « the Parties ». The term « Equipment » is understood to refer to all items sold by FOG, including spare parts and accessories.
2 - Sales offers - Quotations - Catalogues
2.1 The sales offers and quotations are valid for a period of one month from the date when they were issued, and are not contractually binding.
2.2 The descriptions of any type (weight, dimensions, illustrations of Equipment, etc.), photos and schemes, included in the FOG catalogues, paper or internet versions, are not contractually binding.
3 - Orders
3.1 The purchase of Equipment from FOG will be the subject of a purchase order on the Customer’s letter-headed stationery, dated and signed by the Customer. The purchase order will include all of the Equipment, parts and accessories ordered (product reference and quantity), the unit price excluding tax and including tax, the delivery address and any particular manufacturing specifications specific to the Customer.
3.2 Until the Customer’s order has been expressly accepted by FOG, FOG has not made a commitment to sell to the Customer.
3.3 The order may be placed and addressed to FOG by any means (post, e-mail, fax, telephone with written confirmation).
3.4 The order shall only be taken into account by FOG on the date when FOG receives the first payment on account. Any delay in settling this payment on account may entail, at the Customer’s risk, a delay in delivery that FOG cannot be held liable for.
3.5 Any modification or cancellation, partial or total, of the Customer’s order, except if the parties reach a better agreement and if the delivery deadlines are extended, may only occur within a maximum period of 8 (eight) days from FOG’s receipt of the initial purchase order. FOG reserves the right to invoice the Customer for the Equipment supplied, the labour costs and any costs incurred by FOG in preparing and/or executing the cancelled or modified order.
4 - Warranty - Complaint
4.1 The warranty form must be returned to FOG with a period of one (1) month following delivery.
4.2 All new Equipment is guaranteed for twelve (12) months with effect from its delivery, spare parts and costs of labour, excluding travel and other costs (handling costs, etc.). All second hand Equipment is guaranteed for three (3) months with effect from its delivery, spare parts and costs of labour, excluding travel and other costs (handling costs, etc.).
4.3 All Equipment delivered must be inspected by the Customer to make sure that it conforms to the order and to the specifications of FOG or the manufacturer and, if applicable, to the particular manufacturing specifications defined by the Customer.
4.4 In the event of a claim with regard to an obvious defect or non-compliance of the Equipment delivered, the customer must also notify FOG of this at the latest within fifteen (15) days following delivery, without prejudice to recourse against the transporters under the terms and conditions of article 5 below. The customer will be responsible for providing any proof concerning the reality of the defects or
anomalies observed. It must give FOG every facility for investigating these defects and rectifying them. It will refrain from intervening itself or having a third party intervene thereunto, under penalty of losing the benefit of the warranty. Except if the Parties reach a better agreement, any challenge that is not made as stipulated above shall be inoperative and the customer shall lose all right to make a claim against FOG. Under no circumstances can the partial non-conformity of the delivery be grounds for a total or partial cancellation of the order or for the return of the Equipment.
4.5 Should the delivered Equipment turn out to be flawed for reasons not attributable to the Customer, or in cases where it is found that these defects could not reasonably have been observed during the above-mentioned inspections, the Customer must immediately notify FOG of its claims in this regard. FOG’s liability because of an obvious or hidden defect of a piece of Equipment shall be limited to the exchange
or repair of parts or Equipment recognised as non-conforming or flawed by FOG’s technical services department during the warranty period.
4.6 Exceptionally, and should the circumstances justify this, FOG may take back a piece of Equipment, after examination of the dossier and prior written agreement on its part. In the case of a new piece of Equipment, the take-back value will be equal to the price invoiced less a fixed-price amount of 25% (corresponding to administration and take-back costs, and to handling costs, costs of reconditioning the product, back into inventory costs incurred by FOG). Under no circumstances will consumables be taken back. Said exceptional take-back will lead to a credit note being generated for the benefit of the Customer. The costs of labour and of travel, excluding French overseas departments and territories, will be borne by the FOG distributor or reseller in the case of an indirect purchase, or by FOG in the case of a direct purchase.
4.7 No warranty shall be due by FOG if (i) the Equipment sold is the subject of modifications, whatever these may be, by the Customer without prior written agreement from FOG, or of repair or maintenance operations by persons not approved in advance by FOG; (ii) the Equipment sold is used in an abnormal way or in abnormal conditions with reference to the catalogue and/or to the instructions manual supplied by FOG or by the manufacturer; (iii) the non-conformity arises from the Equipment’s normal wear or from negligence, lack of maintenance or incorrect storage by the Customer; (iv) the non-conformity is the result of faulty installation not carried out by FOG; or (v) the non-conformity is the consequence of a force majeure event or any other event outside FOG’s control. Under no circumstances can FOG be held liable for direct or indirect, incidental or consequential, damages caused, such as loss of margin, loss of use, cost of substitute products, nor for claims received by the customer from its own customers or sub-purchasers. Any bailiff’s report or any ex parte proceedings evidencing a defect of the Equipment shall not be binding on FOG.
5 - Deliveries - Transfer of risks - Transport
5.1 The Equipment travels at the receiving Customer’s own risk and responsibility. On arrival, should there be any complaint, it is up to said Customer to make all proper reservations or recourse with regard to the transporter. Under no circumstances can FOG be held liable as a result of the transport or of its consequences.
5.2 The risks linked to the transport of the Equipment through to the delivery address are the responsibility of the Customer who, in particular in the event of late delivery, must take action against the transporter itself. Any complaint made by the Customer
must be notified to FOG within a period of fifteen (15) days following receipt of the piece(s) of Equipment in question, so that FOG may, if necessary and insofar as possible, provide assistance to the customer. After this period, no claim shall be accepted or taken into account by FOG.
5.3 Acceptance of the Equipment with no reservation made to the transporter upon delivery precludes the Customer from making any subsequent complaint to FOG.
5.4 Unless expressly stipulated, time-scales are given by FOG for information purposes. Delays cannot, under any circumstances, give rise to the payment of damage of any sort whatsoever, in particular for loss of use, or to the retention of all or part of the price, or to the cancellation of the current order.
5.5 In general, the delivery of Equipment can only occur if the customer is up to date with its obligations, in particular of payment to FOG.
6 - Prices - Terms and conditions of payment
6.1 Sales are transacted at the price in force on the date of the order.
6.2 Prices are indicated net of tax. The Customer is responsible for any taxes, duties, delivery charges, fees or other charges to be paid in accordance with French regulations or those of an importing country or a transit country.
6.3 The Customer is also responsible for the cost of transport.
6.4 The prices net of tax shown on FOG’s price list do not include the cost of installing and commissioning the Equipment, which will be the subject of separate quotations at the Customer’s request. Where the installation requires work beforehand, in particular construction work, this is carried out under the Customer’s responsibility and in compliance with the plans provided by FOG. The carrying out of tests, mandatory in particular for lifting Equipment, is also under the Customer’s responsibility. The Customer is also responsible for the costs of the work, in particular construction work, and the costs of the above-mentioned tests. The tests may be carried out by one of the service providers approved by FOG. On the other hand, if the Customer decides to make use of a person other than FOG, the latter declines all responsibility for this.
6.5 Any preferential price, take-back, refund, discount, or any other benefit that FOG may grant to the Customer shall only be granted on an exceptional and ad hoc basis, and may not constitute in any way a benefit conferred permanently for the Customer.
6.6 The payment of an order must be made within 30 days net, except in case of prior written approval from FOG, by cheque or bank transfer according to the methods agreed upon and specified on the purchase order, the FOG acknowledgement of receipt and/or the invoice. A first payment on account of 30% of the total price excluding tax will be payable by the Customer on the day when the Purchase Order is sent to FOG. The balance will be payable, unless otherwise stipulated, at the latest upon acceptance of the delivery.
6.7 In the event of non-payment by the due date, any sum due shall automatically lead to late payment interest charges, the applicable rate for which shall be the rate for European Central Bank advances in force when the invoice was issued, plus ten (10) points. The failure to pay the amount owing by the due date by the Customer shall in addition automatically lead to (i) all sums owing to FOG arising from the Sale Agreement becoming due and payable; and (ii) under a penalty clause, a 15% surcharge on the amount not paid on the due date; and (iii) a minimum fixed-rate indemnity of 40 Euros for recovery costs, it being understood that if the recovery costs actually incurred are greater than this fixed charge, an additional indemnity amount shall, upon proof, be due by the customer.
6.8 Should the due payment still not have been made, after a formal demand sent by registered letter has remained without response for eight (8) days, FOG may ipso jure and with no special formality suspend or cancel the current orders without prejudice to the recovery of the sums due to it, including surcharges and indemnities. The suspension or termination shall apply not only to the order in question but may also, at FOG’s discretion, apply to all prior unpaid orders, whether they have been delivered or are in the course of delivery. The termination of the sale agreement shall lead to the automatic suspension of any maintenance contract concluded with FOG.
6.9 Partial payments shall be applied in order of priority against the late payment charges, the interest charges and the oldest amounts owing.
7 - Retention of ownership
7.1 FOG will retain ownership of the Equipment until the actual payment in full by the Customer of the principal and other charges.
7.2 While the price has not been paid in full, the Customer undertakes not to grant any security whatsoever on the equipment, not to transform it, not to transfer it as a guarantee, nor to mix it with other equipment of the same type from other suppliers. In the absence of ascertainment, FOG may demand its payment.
7.3 The above provisions shall not preclude, upon delivery of the Equipment, the transfer of risks to the customer as specified in the aforementioned article 5.
7.4 In the event of seizure (sequester or garnishee), or any other conveyance by a third party on the Equipment, while FOG has not been paid the sale price in full, the Customer must immediately inform FOG of this to allow it to challenge this and preserve its rights.
7.5 Should FOG grant the Customer a deferment of the payment date, by derogation to the payment terms and conditions specified by these terms and conditions, such a deferment would extend the effects of this retention of ownership clause by a similar period.
8 - Force majeure
FOG is exempted from any obligation in cases of force majeure, an external event outside its control and not resulting from a fault or negligence on its part, in particular fires, a declared or undeclared state of war, strikes, floods, natural disasters. Should one of the events defined above occur, FOG will notify the customer of this and its obligations will be suspended until the end of the difficulty, without indemnity. The contractual time-scales shall be extended accordingly. However, should the difficulty last for more than three months, unless specifically agreed each of the parties may de jure terminate the contract that binds them, by registered letter with acknowledgement of receipt.
9 - General provisions
9.1 Except if the Parties reach a better agreement, in the event of a difference or contradiction between these general terms and conditions and the contractual documents signed by FOG and the Customer, these general terms and conditions shall prevail over the other contractual documents.
9.2 If one or more stipulations herein are held to be not valid or declared as such by the application of a law, a regulation, or following a court decision having the force of res judicata decided on the merits of the case with no right of appeal, or of any other regulation, the other stipulations shall retain all their power and scope.
10 - Applicable law - Jurisdiction clause
10.1 These general terms and conditions of sale and the sale agreement itself are governed by French law.
10.2 Jurisdiction is hereby allocated to the Courts of Nevers for any disputes relating to the maintenance contract or to these general terms and conditions, regardless of their nature.