GENERAL SALES CONDITIONS
The term « Vendor » used here below designates the supplier of equipment, accompanied or not by provision of a service.
The term « Customer » used here below designates the purchaser of the product and any service involved.
The prices and information mentioned in the catalogues, brochures and price-lists are given as an indication.
The supply includes exactly and only the equipment and any services specified in the order confirmation (or “contract”) signed by the Customer and the Vendor.
Acceptance of offers from the Vendor by the Customer implies its agreement with these terms and renunciation to its purchase terms. The latter shall waive exercising any general conditions of purchase he may have.
The weights announced by the Vendor are a simple indication and can in no case be the cause of claims or price reduction.
For additional supply of products and services, the prices and deadlines are negotiated between the Vendor and the Customer before execution. In no case shall the additional supply be prejudicial to the ones of the main order.
By default, unless specified otherwise, all prices are FOB Fort Mill, SC USA.
II. INDUSTRIAL PROPERTY, STUDIES, PROJECTS AND DOCUMENTATION
The equipment of the Vendor being covered by the rights of industrial property, the Customer must in all cases inquire of the Vendor as to the existence and extent of such rights.
The projects, studies and documents of all kinds delivered or sent by the Vendor and information resulting from them remain in all cases his full property. They must be given back to him immediately upon his demand and cannot be communicated or executed, completely or partially, without his prior written consent.
The Vendor’s standard documents such as drawings, descriptions, illustrations, brochures, catalogues, operating instructions, advertisements, are given as general information and may undergo modifications at any time. The Vendor is only bound by the order confirmation signed by it and by the Customer.
The Customer must make all arrangements so that the installation, exploitation and upkeep of the equipment are carried out according to generally accepted practices. The provided equipment is foreseen for operation in conditions in compliance with the recommendations of the Vendor.
In case of a specific, duly agreed study, the definition and choice of the equipment will be made on the basis of information provided by the Customer, notably concerning the characteristics of the installation site. In this respect, the Customer shall provide all the necessary relative information, notably weather conditions and environmental and neighborhood constraints, which may affect the good functioning of the equipment.
III. FORMATION OF THE CONTRACT
The contract is only completed between the parties when the order confirmation has been signed by the by the Customer and the Vendor.
In case of contradiction between contractual documents which may exist for a same order, the respective obligations of the parties are defined exhaustively by the following list of documents, these being classified in order of decreasing value:
– the confirming order signed by the Customer and the Vendor
– these general sales terms
– the text of the offer
The carrier is designated:
– either by the Customer in the framework of an ex-works sale
– or by the Vendor in the framework of carriage-paid sale
Except for contrary provisions expressly indicated by the Vendor in the confirming order, the delivery and consequently the transfer of risks, both loss or damage to the equipment subject of the Customer’s order on the one hand and liability for this equipment on the other hand are considered as being in effect as soon as its serialization in the Vendors premises and no later than when handed over to the first carrier.
The Customer shall consequently take out at its cost, a policy guaranteeing any damages which may occur to the transported equipment as well as a policy guaranteeing the monetary consequences of his liability for damages which may be caused by the equipment subject of his order starting at the point of risk transfer.
In the framework of sales for exportation, the parties agree to refer to Incoterms-CCI 2010, or any other version in force at the date of the confirmation order. Customs duties shall in all cases be borne by the Customer.
The Customer must in all cases check the Equipment at reception and preserve any recourse against the transportation chain, and notably through specific, detailed reservations within the allotted time. Failing this, the Customer shall forfeit all right of claims against the Vendor, if sit has had such rights.
If the shipment is delayed for any cause whatsoever beyond the control of the Vendor and if this latter so consents, the equipment is stored and handled at the exclusive risk and expense of the Customer (expenses for packaging, etc). These provisions and their application, where appropriate, in no way modify the order confirmation signed between the parties and notably the obligation to pay for the supply by the Customer. They may in no case be considered as a novation.
The delivery time is counted starting from the latest of the following dates which may apply:
– either the enter in force or the order confirmation,
– or the date at which the Vendor has received the documents and the technical data from the Customer necessary for the good execution of the order or any rider to this latter accepted by the Vendor,
– or the date at which the down payment has been paid by the Customer,
– or the date on which the Vendor has received the supply that the Customer has pledged to hand over to him
– or the date at which the guarantees agreed by contract have been provided by the Customer.
Delays in delivery, whatever their cause may be, will in no case lead to penalties nor give rise to damages nor justify cancellation of the order or suspension of agreed payments.
Vendor can make partial shipments and invoice them according to VII.
Packaging for the Equipment subject of the contract between the parties is in all cases at the Customer’s cost and under its responsibility. It is included in the present quotation.
In case of specific packaging, the definition of the packaging category to be used commits the responsibility of the Customer alone.
VI. TITLE RETENTION
The Vendor keeps title to the Equipment sold until effective payment of the whole price, principal and incidentals.
Non-payment at any one of the due dates whatsoever could lead by right to claiming these Equipment at the Customer’s expense, as well as termination of the contract by the Vendor, by simple notice and to the exclusive fault of the Customer. In case the Equipment is taken back by the Vendor, the payments already made will remain in all cases acquired by the Vendor as damages, without detriment to any right he may have to obtain complete redress for the prejudice undergone if this is greater.
If applicable and in compliance with article IV paragraph 2 hereabove, the risks of loss or deterioration of the Equipment as well as liability for damages they may cause, of any type whatsoever, are borne by the Customer until the Vendor has effectively and completely taken them back.
VII. TERMS OF PAYMENT
Per the payments terms described in the Order Confirmation.
The payments must be made by the Customer in compliance with the conditions indicated in the order confirmation signed by the Customer and the Vendor. Confirming order issued by the Vendor.
The payments are made to the Vendor’s registered offices, net and without discount.
Any and all bank fees relative notably to bank guarantees, encashments, transfers, negotiable stamps and protests are borne by the Customer.
The payments are due even in the case of non collection or shipping delay caused by the Customer. The Vendor reserves the right to invoice the various Equipment individually as they are made available and to make partial shipments.
In case of sale, transfer, hypothecation or contribution of business capital or equipment by the Customer, the amounts owing become immediately due, whatever conditions may have been previously agreed.
Retrofits of equipment are always subject to downpayment and full payment prior to shipment.
The terms of payment can in no case be delayed or suspended, completely or partially, including in case of litigation, notably in the hypothesis where, for reasons not attributable to the Vendor, the shipping, transportation, mounting, installation or commissioning of the Equipement are delayed or made impossible. Consequently, payments by the Customer will correspond in all cases strictly to amounts and due dates indicated on the Vendor’s invoice.
In case of cancellation of his order by the Customer, deposits paid remain in all cases acquired by the Vendor as damages, without detriment to any right for this latter to obtain integral redress for the prejudice undergone if this is greater. For Spare Parts, depending of the nature of the parts, the deposits paid remain in all cases acquired by the Vendor as damages and when no deposits have been paid, a minimum 20% restocking fees of the said parts selling price will be applied.
By express agreement and except for deferral requested on time and accepted by the Vendor, default in payment of the supply and/or services at the set due date will lead cumulatively to :
– Immediate payment of all amounts remaining due, whatever the foreseen payment mode may be.
IX. SERVICES ON SITES
The Vendor may, in the framework of certain markets, be led to carry out all or part of the operations of mounting, testing, industrial commissioning of his supply.
Carrying out such services is, under any circumstances, without incidence on the transfer of risk such as indicated in article IV of these terms.
Carrying out these services will in no case be considered as a full or partial agreement by the latter for the intrinsic qualities of elements and/or services outside of his supply and/or more generally the environment of his equipment. The test operations on the sites or commissioning carried out by the Vendor will in no case be considered as agreement by him of the installation conditions of his equipment by the Customer or a third party.
The Vendor can in no way be held liable for any consequences of any type whatsoever, notably intangible ones, for complete or partial non-performance of the obligations not directly and expressly concerned by the terms of the order confirmation signed by the Customer and the Vendor.
The Vendor shall invoice the Customer any over-cost arising because of any delays or additional work made necessary or required by the Customer.
The fact for the Vendor to assume conducting mounting operations on the site does not in any way exempt the Customer from his duty for job site surveillance.
X. EQUIPMENT GUARANTEE
1) Deficiencies giving rise to the guarantee
The Vendor shall remedy any faulty operation coming from a defect in the design, materials or execution within the limits of the provisions here below.
The obligation of the Vendor does not apply in the case of defect coming from materials provided by the Customer.
All guarantees are also excluded for incidents coming from fortuitous events or force majeure as well as for replacements or repairs resulting from normal wear of the equipment, deteriorations or accidents coming from negligence, faulty surveillance or maintenance or defective or abnormal use of this equipment. Likewise, the guarantee on consumable parts or elements also remains excluded in all cases.
Proof of the alleged defect lies in all cases with the Customer.
Only the first purchaser Customer may profit from the guarantee, which may not be transferred to a third party without the prior written consent of the Vendor.
2) Period of guarantee
The guarantee is ensured by the Vendor for:
– 3 months starting on the date mounting has ended
– 6 months after leaving the Vendor’s factory
whichever comes first.
It is expressly agreed that no guarantee is granted by the Vendor if mounting has not be done by him.
Spare or replaced parts are guaranteed for a period of 6 months without this modifying the period of guarantee on the other components.
3) Obligations of the Customer
In order to be able to invoke benefit of the guarantee, the Customer must:
– Comply strictly with the operating instructions of the equipment such as they are given notably in the technical documentation issued by the Vendor if applicable.
– Follow the technical training given, if applicable, by the Vendor for using his equipment.
– Keep up to date a maintenance log in which he indicates the date, contents and results of tests, visual inspections, current upkeeping interventions, maintenance interventions as well as all observations and any anomaly findings made during exploitation.
– Inform the Vendor with no delay and in writing of the defects he attributes to the equipment and provide all justifications as to their reality. He must give the Vendor all facility for noting these defects and remedying them. Moreover, he must abstain from carrying out repairs himself or by a third party without the prior written consent of the Vendor.
4) Modalities for exercising the guarantee
The Vendor thus informed must remedy the defects at his expense and with all due dispatch, reserving the possibility of modifying, if necessary, the mechanisms of the equipment in order to satisfy his obligations. The Vendor’s interventions only concern the equipment delivered by him. All parts replaced in the framework of this agreement become the property of the Vendor again and must, under penalty of forfeiting the guarantee, be returned to him.
The guarantee is only granted after expertise and return of the defective parts.
The guarantee is ensured directly by the Vendor or through his approved agents and distributors.
5) Limit of the guarantee
The guarantee granted by the Vendor is strictly limited, at the Vendor’s choice, to replacing or repairing the defective equipment under the conditions and limits indicated hereabove. It does not extend to repairing any other damages of any type whatsoever and notably any losses of profit, production or exploitation resulting directly or not from the whole or partial unavailability of the Vendor’s supply because of defectiveness giving rise to the right of this guarantee. The guarantee does not cover the costs of replacing the parts and any related costs beside the part itself, unless specified.
Moreover, the guarantee does not cover the textiles treated by the machines and the products coming from them.
XI. INDUSTRIAL RESULTS
When special performances are requested by the Customer aiming at obtaining industrial or economic results, the commitment of the Vendor for such performances must be noted in writing in order confirmation signed by the Customer and the Vendor.
In the case that the performances are not reached the Vendor cannot be held as responsible for its occurrence as well as in its consecutive tangible and intangible consequences, for any reason and for any amount whatsoever.
The Customer shall respect and have respected by his personnel or any third party who may use the Vendor’s supply, the operating instructions and safety requirements delivered with the machines so that their exploitation may be ensured with no danger to individuals.
It is forbidden under any circumstances to make any modification whatsoever on the Vendor’s supply and notably concerning the existing safety installations. Any modification not previously approved in writing by the Vendor releases his responsibility. If the safety requirements are not respected then the Vendor will refuse to work on the Equipment; in this case the Vendor’s expenses will be at the charge of the Customer.
XIII. FORCE MAJEURE
The Vendor cannot be considered as having failed in his contractual obligations in the case where execution of this contract was delayed or prevented by a situation of force majeure. Is considered as such the existence or occurrence of any fact which could not be reasonably foreseen or prevented by the Vendor and which would make it impossible, temporarily or definitively, completely or partially, to carry out his obligations. As an indication, the following events expressly constitute a situation of force majeure : Natural event or catastrophe, destruction or unavailability of the Vendor’s production means, default by a supplier or a subcontractor, strike, etc…
The Vendor shall inform the Customer as soon as possible of his impossibility for carrying out his obligations.
In case of definitive impossibility for the Vendor to satisfy his obligations, the contract can be terminated by right by the Customer by simple written notice.
The liability of the Vendor is strictly limited to the obligations defined in the order confirmation and it is expressly agreed that the Vendor shall not be held under any circumstances whatsoever to compensate for intangible and/or indirect damages that the Customer (or any sub-purchaser) could claim, whatever the cause and the origin may be (contractual guarantee, legal guarantee, contractual responsibility of the Vendor such as non-conformity etc …).
Because of this, the Vendor can in no case be held to compensate for any losses of production, exploitation, profit, fees or expenses whatsoever, notably in the case of unavailability of the equipment subject of the concerned supply, as well as damages undergone by third parties and more generally any compensable prejudice other than bodily injury or damages to property.
For any dispute relative to the validity, interpretation or execution of the contract signed between the Customer and the Vendor, whatever the sales terms and accepted mode of payment may be, ) and if the Products or Services are delivered or performed in the United States, this Agreement and the performance thereof will be governed by and construed according to the laws of the State of South Carolina Trade Law even in case of third party claim or multiple defendants.
803-548-7233 (C) 2012 NSC USA, Inc. 1299 Schlumberger Drive, Fort Mill, SC 29715