Terms and Conditions of Sale
TERMS AND CONDITIONS OF SALE FG INDUSTRIES
ARTICLE 1 – Scope of application
These terms and conditions of sale constitute, in accordance with Article L 441-1 of the French Commercial Code, the sole basis of the commercial relationship between the parties.
Their purpose is to define the conditions under which FG INDUSTRIES (“The Supplier”) provides professional Buyers (The Buyers Buyers) which so request, by direct contact, email or in written form, mainly the following products: Specific metal parts for fixation (“The Products”).
They apply without restriction or reservation to all sales made by the Supplier with Buyers, regardless of the clauses that may appear in the Buyer’s documents, and notably its Terms and conditions of purchase.
In accordance with regulations in effect, these Terms and Conditions of Sale are systematically provided to any Buyer that requests them, to enable it to place an order with the Supplier.
Any order for Products implies, on the part of the Buyer, acceptance of these Terms and Conditions of Sale.
The information on the Supplier’s commercial documents is given for information purposes only and may be revised at any time. The Supplier shall be entitled to make any changes to these documents as it deems useful.
In accordance with regulations in effect, the Supplier reserves the right to depart from certain clauses of these Terms and Conditions of Sale, depending on the negotiations conducted with the Buyer, by drafting Special Terms and Conditions of Sale.
ARTICLE 2 – Orders
It is up to the Buyer that wishes to place an order to contact the Supplier by e-mail, fax, postal mail or telephone, indicating all the characteristics of its order, before placing an order or requesting a price quote, or by sending the Supplier a set of specifications.
FG INDUSTRIES manufactures Products to measure according to the Buyer’s specifications.
After examination of the request, the Supplier will send a commercial proposal to the Buyer, materialized by issuance of an estimate.
Orders must be confirmed in writing, by means of a purchase order duly signed by the Buyer or by returning the estimate completed with its acceptance.
Sales are only complete after express written acceptance of the Buyer’s order by the Supplier, demonstrated by the dispatch of an acknowledgement of receipt of the order.
Any changes requested by the Buyer shall only be taken into account within the Supplier’s possibilities and at its sole discretion.
Possibility of a deposit
A deposit may be requested depending on the case and, notably:
-In case of a substantial investment for fulfillment of the order (raw materials, machines, tools…)
-When buyers are not eligible for credit insurance, they will be required to make full payment in advance before production.
If a deposit has been paid: In the event of cancellation of the order by the Buyer after it has been accepted by the Supplier for any reason whatsoever except for force majeure, the deposit paid with the order shall be automatically retained by the Supplier and may not give rise to any reimbursement other than payment of the totality of the order.
If no deposit has been paid: In the event of cancellation of the order by the Buyer after it has accepted by the Supplier for any reason whatsoever except for force majeure, payment of the totality of the order will be required by the Supplier and/or in any event left to its free discretion.
ARTICLE 3 – Penalty clause
Any order commitment for which the call for delivery does not take place, regardless of the reason, will be the subject not only of payment for the goods in stock but also of payment of the price of the totality of the order not called increased by 20% as a penalty clause.
ARTICLE 4 – Prices
The Products are supplied at the prices appearing in the commercial proposal sent by FG INDUSTRIES to the Buyer.
These prices are net and exclusive of tax, according to the Incoterm (latest version) negotiated.
In addition, a storage fee will be charged in case the customer’s commitment (binding order) is not kept.
ARTICLE 5 – Terms of payment
Unless otherwise stipulated, the price is payable in full and in a single instalment under the conditions defined on the order.
The cheque is cashed immediately.
Payments made by the Buyer shall not be considered final until the Supplier has effectively collected the sums due.
In the event of late payment and payment of the sums due by the Buyer beyond the time limit set forth above, and after the payment date appearing on the invoice sent to the Buyer, late payment penalties calculated at the rate applied by the European Central Bank to its most recent financing operation, increased by 10 percentage points of the amount, including all taxes, of the price appearing on said invoice, shall be retained by the Supplier, automatically and by right, without any formality or prior formal notice.
In the event of non-compliance with the payment conditions stated above, the Supplier also reserves the right to suspend or cancel delivery for orders in progress and to suspend performance of its obligations.
Except with the express, prior and written agreement of the Supplier, and provided that the reciprocal claims and debts are certain, liquid and due, no offsetting may be validly done between any penalties for late delivery or non-conformity of the products ordered by the Buyer, on one hand, and the sums owed by the Buyer to the Supplier for the purchase of said products, on the other hand.
Finally, a flat-rate indemnity for collection costs, in the amount of 40 euros, shall be due, ipso jure and without prior notification, by the Buyer in the event of late payment. The Supplier reserves the right to ask the Buyer for additional compensation if the collection costs actually incurred exceed this amount, upon presentation of supporting documents.
No discount will be applied by the Supplier for payment before the date appearing on the invoice within a period less than that mentioned in these Terms and Conditions of Sale.
ARTICLE 6 – Deliveries
The delivery time frame will depend on the Supplier’s acknowledgement of receipt of the order, availability of the Products and the time required for manufacturing.
The goods ordered may be delivered in a single shipment or in several successive deliveries planned according to the Supplier’s order acknowledgement.
However, this timeframe is provided for information only and does not constitute a firm deadline.
The Supplier shall not be liable to the Buyer in the event of late delivery or advance delivery not exceeding one week.
Delivery will be made to the address provided, by direct remittance of the Products to the Buyer. The products travel according to the Incoterm negotiated.
The Buyer is obliged to verify the outward appearance of the products upon delivery. In the absence of reservations stated expressly by the Buyer at the time of delivery, the Products delivered by the Supplier shall be deemed as conforming to the order in terms of quantity and quality.
The Buyer shall have a period of 3 days from delivery and receipt of the ordered products to express such reservations in writing to the Supplier.
No claim will be validly accepted in the event that the Buyer fails to comply with these formalities.
The Supplier shall replace, at its own expense, the delivered Products whose lack of conformity has been acknowledged in the context of its dispute procedure, being specified that any goods returned with approval from the Supplier must be returned in their original packaging.
Packaging is not usually taken back. The Supplier is exempt from any legal obligations in connection with packaging materials and packaging waste. The Buyer is responsible for disposing of them at its own expense unless special agreements have been made (European pallets).
ARTICLE 7 – Transfer of ownership – Transfer of risks
6-1 . Transfer of ownership
The transfer of ownership of the Products to the Buyer will only take place once the Buyer has paid the price in full, regardless of the date of delivery of said Products.
6-2 . Transfer of risk
Transfer of the risks of loss and damage to the Buyer will take place in accordance with the Incoterm negotiated independently of the transfer of ownership.
In the absence of specification of an Incoterm, the Buyer shall be responsible for any harmful consequences affecting the Products from date that the goods leave the factory (ex-works). This, the Products shall be transported at the Buyer’s risk and peril.
ARTICLE 8 – Retention of Title Clause (RPC)
Until full payment of the price, costs and accessories by the Buyer, the Supplier holds a right of ownership for the products sold, allowing it to repossess said products.
Payment refers to effective collection of the payment instrument and recording of in the seller’s accounts. Remittance of a payment instrument creating an obligation to pay does not constitute payment under this clause.
Failure to make any payment by the due date may entitle the seller to retake possession of the goods. Any extension of the due date shall be subject to the same retention of title.
However, the risk of loss and damage of the goods as well as the liability for any damage they may cause are transferred to the Buyer ex works or according to the negotiated Incoterm.
Any advance payment made by the Buyer shall be retained by the Supplier as set compensation, without prejudice to any other action that it may be entitled to take against the Buyer as a result.
Consequently, the Buyer agrees to have the products ordered insured, at its own expense, for the benefit of the Supplier, by an ad hoc insurance policy, until the complete transfer of ownership, and to provide proof of this to the Supplier upon delivery. Failing this, the Supplier shall be entitled to delay delivery until such proof is presented.
The goods are obligatorily used by the Buyer in the chronological order of the Supplier’s deliveries. Consequently, the goods in stock at the Buyer sites shall be deemed as relating to the Seller’s invoices that have not yet been paid.
ARTICLE 9 – Warranty
The Supplier guarantees that the Products delivered comply with the Buyer’s specifications and requirements and that they are free from defects in workmanship and materials.
In order to assert its rights, the Buyer shall, under penalty of forfeiture of any action relating thereto, inform the Supplier in writing of the existence of defects within a maximum period of 15 days from their discovery.
The warranty is limited to replacement of the Products or issuance of a credit note limited to the invoice value of the delivered Products covered by the warranty.
The Supplier shall replace Products or parts under warranty that are found to be defective.
Any guarantee is excluded in the event of abnormal or inappropriate use under conditions different from those for which the Products were manufactured; faulty maintenance of the Product; modifications or repairs by the Buyer or by a third party; normal wear and tear linked to the life of the goods; damage related to an accident, shock or negligence or a case of force majeure, as well as design defects due to the Buyer.
ARTICLE 10 – Supplier’s liability
The Supplier shall not be held liable for any damage caused to persons or property in connection with use of the Products sold. Nor can the Supplier be held liable for loss of production, stored goods or profit of any kind.
The Supplier cannot be held responsible for any delay in delivery due to causes beyond its control such as force majeure, embargoes, incidents, shortages of raw materials, fuel, transport, payments blocked by banks, etc.
The Supplier’s liability for any claims whatsoever is limited to the sale price of the Products associated with the claim.
ARTICLE 11 – Exclusion of penalties
No penalty of any nature whatsoever and, as such, no predetermined penalty that may possibly appear in the commercial and contractual documents issued by the Buyer, will be applied to FG INDUSTRIES and may not be deducted from the sums owed by the Buyer, except with prior written approval, regardless of the reason for the penalty. In this case, the penalties may not be deducted without the supplier having been able to check, beforehand, the reality of the corresponding grievance, and only on condition that they correspond to a definite, liquid and due debt.
In the event of non-compliance with this clause by the Buyer, the Supplier may refuse any new order for Products and suspend its deliveries. The Supplier also reserves the right to invoice the Buyer for any amount that the Buyer has deducted automatically in breach of this clause.
ARTICLE 12 – Unpredictability
In case of occurrence of an event beyond the control of the Parties which compromises the balance of the contract to such an extent as to render performance of its obligations prejudicial, the Parties agree to negotiate, in good faith, modification of the contract. The following events, in particular, are covered: variation in the price of raw materials, change in customs duties, changes in legislation, strikes, epidemics, change in the Buyer’s financial situation. In the absence of agreement between the Parties within a reasonable period of time in view of the economic stakes involved, each Party shall be entitled to terminate the contract subject to one month’s notice.
ARTICLE 13 – Force majeure
In case of occurrence of an event of “force majeure” within the meaning recognised by case law and Article 1218 of the Civil Code, the Party concerned must inform the other Party by registered letter with acknowledgement of receipt within fifteen (15) days following occurrence of this event. Under such circumstances, the obligations of the Parties would be suspended for the entire duration of the event of force majeure, without compensation. If the event of force majeure lasts longer than three (3) months, these TCS and/or any other contract concerned may be terminated by either of the Parties, automatically and without compensation.
ARTICLE 14 – Personal data
In order to improve and personalise the services offered, FG INDUSTRIES may collect and process personal data concerning you. This data is necessary to open an account with FG INDUSTRIES, to process orders, to manage mail and to track deliveries. This data will be kept by FG INDUSTRIES for the entire duration of the contract and for a period of up to two years after the end of the contract.
FG INDUSTRIES agrees to ensure that the collection and processing of this personal data comply with the European Regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data (GDPR).
FG INDUSTRIES informs the buyer that the owner of personal data has rights of access, rectification, modification, portability, deletion and the right to be forgotten for the personal data concerning him/her, as well as the right to oppose the processing and collection of such data. To exercise these rights, it may write to FG INDUSTRIES at the following address: email@example.com.
ARTICLE 15 – Disputes
In order to find a solution to any dispute that may arise in the execution of this contract, the contracting parties agree to meet within two weeks after one of them has sent a registered letter with acknowledgement of receipt to the other.
This friendly settlement procedure is a mandatory prerequisite for the initiation of legal proceedings between the Parties. Any legal action brought in breach of this clause will be declared inadmissible.
However, if, at the end of a period of two weeks, the parties are unable to agree on a compromise or solution, the dispute shall be submitted to the jurisdiction designated below.
ARTICLE 16 – Competent Court
Exclusive jurisdiction is given to the French courts and, in particular, to the Commercial Court of NEVERS (France) for the settlement of any dispute arising from these terms and conditions of sale.
ARTICLE 17 – Applicable law – Language of the contract
These Terms and Conditions of Sale and the transactions arising therefrom are governed by French law, to the exclusion of its conflict of law rules.
They shall not give rise to the application of the 1980 United Nations Convention on the International Sale of Goods or any provisions replacing it.
The Terms and Conditions of Sale are written in French. In the event that they are translated into one or more languages, only the French text shall be deemed authentic in the event of a dispute.
ARTICLE 18 – Miscellaneous provisions
The fact that the Supplier waives any of the clauses of these Terms and Conditions of Sale shall not be interpreted as a waiver of the right to rely on any of the other clauses of the Terms and Conditions of Sale.
The nullity affecting one of the provisions of these Terms and Conditions of Sale shall in no way affect the validity of the overall contract.
ARTICLE 19 – Acceptance by the buyer
These terms and conditions of sale as well as the prices are expressly agreed and accepted by the buyer, which declares and acknowledges being familiar with them and, therefore, waives the right to rely on any document to the contrary and, notably, its own terms and conditions of purchase