I. PTC shall mean these purchase terms and conditions. II. PRODUCT(S) shall mean any material, equipment, products or services of any kind. III. SUPPLIER shall mean the company selling the PRODUCT. IV. CLIENT shall mean YANMAR CONSTRUCTION EQUIPMENT EUROPE SAS. V. PARTIES shall be used to refer collectively to the SUPPLIER and the CLIENT. VI. TECHNICAL DOCUMENTATION shall mean the specifications, types, designs, gauges, plans, CAD files, standards or other documents of the CLIENT that the SUPPLIER shall have reviewed prior to the order and that shall be returned to the CLIENT or destroyed at its request. VII. PLACE OF DELIVERY shall mean the CLIENT’s factory or any site, the address of which is indicated on the order form. VIII. DAMAGE(S) shall mean damages of any kind, including physical, material or immaterial, direct or indirect damages. The PTC are drafted in French. If they were to be translated into a language other than French, the original French version shall prevail in case of conflict.
The PTC shall apply to all orders of PRODUCTS made by the CLIENT. They apply in full where no signed agreement governs the commercial relations between the PARTIES. Where such agreement exists, only the provisions of the PTC not covered by that agreement shall apply.
Any condition contrary to the PTC shall, failing written acceptance thereof by the CLIENT, be unenforceable against it. The PTC replace and annul all purchase terms and conditions edited at an earlier date.
The PTC are deemed accepted by the SUPPLIER in accordance with the conditions set forth in article 3. Such acceptance by the SUPPLIER of the PTC shall constitute an absolute waiver by it of its general or specific conditions of sale.
The CLIENT’s failure to prevail itself, at any given time, of any condition of the PTC shall not be interpreted as a waiver by it to prevail itself subsequently of the said, or any other, condition of the PTC.
The SUPPLIER shall provide prior written notice to the CLIENT of any change in its legal structure or shareholders. The CLIENT reserves the right to automatically terminate the order with immediate effect by registered notification letter with acknowledgment of receipt, without legal formality and without compensation, in the event it considers such change to be incompatible with its interests.
All purchases must be the subject of an order form issued by the CLIENT.
The order is deemed accepted by the SUPPLIER and shall constitute a binding commitment on its part entailing its acceptance of the PTC upon receipt by the CLIENT of the acknowledgment of receipt form of the order. Such acknowledgment of receipt form must be addressed to the CLIENT by email or by fax within three (3) business days of the sending date of the order.
The CLIENT shall be entitled to modify the order prior to receiving the said acknowledgment of receipt form.
In case of such modification, the CLIENT shall be promptly notified of any changes in scheduling due to the requested changes. The CLIENT shall be entitled to cancel the order, without any penalty, in the event the acknowledgment of receipt form is not received within this time-frame.
No changes to the specifications defined in the CLIENT’s TECHNICAL DOCUMENTATION may be introduced by the SUPPLIER without the prior written consent of the CLIENT.
More generally, any reservation expressed by the SUPPLIER regarding the order shall be considered only with the written agreement of the CLIENT.
4. DELIVERY - PACKAGING - DEADLINES - PENALTIES
The PRODUCTS must be packaged in accordance with the TECHNICAL DOCUMENTATION, including the CCLOG 001 specifications.
The SUPPLIER shall be responsible for breakage, missing items and damage due to improper or inadequate packaging, marking or labeling.
The delivery date of the CLIENT’s order specified in the order form corresponds to the date of arrival of the PRODUCTS at the PLACE OF DELIVERY.
Any event likely to affect the order shall immediately be brought to the attention of the CLIENT. The SUPPLIER shall notify this event immediately in writing to the CLIENT, its likely duration and consequences on the delivery date.
On-time delivery is essential and the CLIENT reserves the right, in case of late delivery, to terminate all or part of the order and, if applicable, to return the PRODUCTS to the SUPPLIER at SUPPLIER’s costs, expenses and risk.
However, in the event the CLIENT accepts postponement of the delivery date, each week of delay in delivery shall result in the application of an indemnity in the amount of 2% of the value, without tax, of the PRODUCTS ordered. The CLIENT shall be entitled to such indemnity solely by reason of the non-delivery or partial delivery on the agreed date without a formal notice to the SUPPLIER being required, and without prejudice to the compensation that may be claimed for by the CLIENT for the financial consequences resulting from the DAMAGES caused by such delay. These amounts shall be paid in the form of credit notes.
Early deliveries by the SUPPLIER shall require the CLIENT’s prior written consent. The quantities delivered in excess shall be stored at the SUPPLIER’s costs, unless formal notice to rectify has been provided
to the SUPPLIER and has remained unsuccessful for a week, in which case at the CLIENT’s choice and the SUPPLIER’s costs, these quantities shall be stored, returned to the SUPPLIER or destroyed.
Transfer of ownership shall take place upon delivery at the PLACE OF DELIVERY.
5. BILLING - PRICE - PAYMENT
Invoices shall be sent to the CLIENT in duplicate to the name and billing address specified on the order form and must include all the information provided for by Article L.441-3 of the Commercial Code. Invoices
must also include the order number, the mode of transportation and destination of the PRODUCTS.
Any change in price of the SUPPLIER must be notified to the CLIENT by registered letter with acknowledgment of receipt at least three (3) months prior to the date of application. Failing this, the change in price shall not be applicable to the CLIENT.
The price of the order is always stipulated firm, final, not subject to revision and DAP PLACE OF DELIVERY in accordance with the most recent version of the Incoterms applicable on the date of the order, and includes packaging costs and any other cost, risk or charge in connection with the execution of the order.
Any additional cost of any nature whatsoever requires the prior written approval of the CLIENT specifically indicated on the order form.
The orders do not give rise to any systematic advance payments (advances or deposits) unless expressly provided for in the order.
The payment must be made within forty five (45) days end of month, date of issue of the invoice in accordance with the provisions of Article L 441-6 of the Commercial Code, and by bank transfer.
Late payment penalties incumbent on the CLIENT shall be limited to those resulting from the application of a rate equal to 3 times the legal interest rate.
The CLIENT shall have the right to offset any amount owed to the SUPPLIER with any amount owed by the SUPPLIER to it. Payment shall not be construed as an agreement by the CLIENT of the PRODUCTS delivered or of the amount invoiced, nor as a waiver of any subsequent claims.
6. TRANSPORT – TRANSFER OF RISKS
The transport of the PRODUCTS shall be at the costs, risks and perils of the SUPPLIER until the PLACE OF DELIVERY. Transfer of risk of the PRODUCTS shall take place upon delivery at the PLACE OF
DELIVERY in accordance with the DAP Incoterm.
7. COMPLIANCE - GUARANTEE - LIABILITY - INSURANCE
The SUPPLIER warrants that the PRODUCTS delivered, as well as the packaging, marking and labeling, comply fully with the order of the CLIENT and its objectives in terms of quality
defined by its TECHNICAL DOCUMENTATION. The SUPPLIER undertakes to achieve an acceptable level of quality on the basis of 1000 ppm (parts per million). In this regard, the CLIENT reserves the right to charge penalties to the SUPPLIER corresponding to the hours of work required to compensate for its failure regarding said quality. The approval of the initial samples by the CLIENT does not release the SUPPLIER of its liability.The SUPPLIER agrees to give prior written notice to the CLIENT of any change in its execution or manufacturing process of the PRODUCT. In the event such change may affect the level of quality agreed to, the CLIENT reserves the right to automatically terminate the order with immediate effect by registered notification letter with acknowledgment of receipt, without legal formality and without compensation.
In case of non-compliance of PRODUCTS and within a period of one month from the date of delivery of the PRODUCTS at the PLACE OF DELIVERY, the CLIENT shall notify the defect to the SUPPLIER in writing and will have the choice between (I) canceling the order, in which case the PRODUCTS shall be taken back by the SUPPLIER within fifteen (15) business days following such notification. After this period, the PRODUCTS will be returned to the SUPPLIER or an address it shall have indicated to the CLIENT, prepaid accompanied by a "right of return" stating their condition, or (II) obtaining, at the expense of the SUPPLIER, the immediate replacement of the non-complying PRODUCTS with complying PRODUCTS or PRODUCTS of better quality at the same price and within a period of eight (8) business days after receipt of the notification.
In case of non-compliance on minor points, the CLIENT may proceed to the reception of the PRODUCTS with reservations. The SUPPLIER is liable for the PRODUCTS towards the CLIENT notwithstanding any clause to the contrary. The SUPPLIER guarantees the CLIENT against any defect, error, imperfection, apparent or hidden defect or malfunction of the PRODUCT and that it offers the security that can legitimately be expected. The SUPPLIER is bound by a performance obligation (“obligation de résultat”), even after approval and acceptance of the PRODUCTS.
In case of defect, error, imperfection, apparent or hidden defect, malfunction or safety defect of the PRODUCT, the SUPPLIER agrees, at the request of the CLIENT, to repair, refund or exchange the PRODUCT free of charge for a period of two (2) years as of its delivery, unless the CLIENT should consider such repair, refund or exchange to be an impossible or disproportionate remedy. In such case, the SUPPLIER undertakes to bear all financial consequences of the remedy implemented.
In any event, and notwithstanding the provisions concerning, in particular, the above-mentioned PRODUCT’s noncompliance or the SUPPLIER’s guarantee, the SUPPLIER is liable and agrees to bear all financial consequences resulting from the DAMAGES caused by the PRODUCT to persons, including legal entities, and / or property, as well as for measures including the recall or withdrawal of the PRODUCT, its suspension, deposit, take-back with reimbursement to the CLIENT, modification and / or destruction, regardless of whether such measures are ordered by the authorities (including courts) or voluntary and whatever the reason provided: including in the case of hidden defects, non-compliance with a standard or regulation, safety defect.
The SUPPLIER will maintain in effect, at its own expense, civil liability insurance of an amount sufficient to cover all financial consequences resulting from the DAMAGES caused by the PRODUCT to persons, including legal entities, and / or property.
The SUPPLIER undertakes to provide certificates of insurance policies and premium payments on first demand of the CLIENT.
The purchase of such insurance does not constitute a limit of liability of the SUPPLIER.
8. REGULATORY COMPLIANCE - ENVIRONMENT
The PRODUCTS ordered must comply fully with the legal and regulatory requirements, particularly in relation to quality, composition, presentation and labeling of the PRODUCTS, as well as with labor and environmental law. The SUPPLIER agrees to comply with all standards in force regarding the sale of chemical and hazardous substances and / or present in the composition of the PRODUCTS. This commitment includes, but is not limited to, the European REACH directive.
9. CONFIDENTIALITY - INDUSTRIAL PROPERTY
The SUPPLIER warrants that the PRODUCTS delivered are free from all industrial or intellectual property claims (patents, trademarks and designs) and that photographs of the PRODUCTS may
be reproduced on any medium, including the internet.
All information provided by the CLIENT to the SUPPLIER, or to which the SUPPLIER would have had access in the context of the execution of the order(s), as well as the achievements or results generated by such order(s), are confidential. The SUPPLIER agrees to take all necessary measures to ensure that no such information be disclosed to third parties, either by itself, its employees or agents.
However, the confidentiality agreement defined above will not apply to information i) known to the public other than by breach of these PTC, and ii) that the SUPPLIER can prove was in its possession before receipt thereof from the CLIENT.
In case of breach by the SUPPLIER of its contractual obligations, the CLIENT shall have the right to automatically terminate the order without legal formality and without compensation.
Termination by the CLIENT for breach of contract by the SUPPLIER shall occur 8 days following receipt by the SUPPLIER of formal notice sent by the CLIENT by registered letter with acknowledgment of receipt to cure such breach, that has remained without effect.
This termination will not prejudice any right to compensation of the CLIENT’s for all DAMAGES suffered by it, including the additional costs incurred by the CLIENT for having to resort to another supplier and the resulting delays.
11. SUBCONTRACTORS OF THE SUPPLIER
The SUPPLIER may not subcontract its obligations without the prior written consent of the CLIENT. Where such authorization has been provided, the SUPPLIER shall remain solely liable towards the CLIENT.
The SUPPLIER cannot change subcontractors without notifying the CLIENT thereof in writing. Further, the SUPPLIER undertakes to notify the CLIENT in writing of any change in the execution or manufacturing process of the PRODUCT, legal organization or ownership of any of its subcontractors.
In any case, the CLIENT reserves the right to automatically terminate the order with immediate effect by registered notification letter with acknowledgment of receipt, without legal formality and without compensation, in the event it considers one of the said changes to conflict with its interests.
12. APPLICABLE LAW - JURISDICTION
The PTC shall be governed by French law, excluding its conflict of law rules. The PARTIES expressly waive the application of the 1980 Vienna Convention on Contracts for the International Sale of Goods.
Any dispute arising from the formation, execution, interpretation or termination of the PTC shall be subject to the jurisdiction of the Commercial Court of Reims (France) even in the event of third party impleading actions or multiple defendants.