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FG INDUSTRIES General Purchasing Terms and Conditions

  1. Scope

The General Purchasing Terms and Conditions (GPTC) apply to any order for the purchase by FG industries (the Purchaser) of Products and Equipment or the Provision of Services. The order for supplies constitutes a purchase contract and its acceptance entails for the Supplier the obligation to comply with the general and specific conditions of purchase of this order

2. Orders

All purchases made by the Purchaser shall be subject to an order. It must include an article, a description, a quantity, a price, a currency, a delivery deadline, an INCOTERM, a method of payment.

The order is established by any written means. All orders are subject to an order acknowledgement reminding the terms of this order. Any provision to the contrary that may be contained in the Supplier’s acknowledgement of receipt or any other document may only modify the general purchasing terms and conditions after the Purchaser’s express agreement and resulting, where applicable, from a commercial negotiation giving rise to the establishment of special terms and conditions between the parties. In the absence of an acknowledgement of receipt of the order within 8 (eight) calendar days of the date of dispatch of the order, the conditions stipulated on this order form shall be deemed to be accepted by the Supplier in all its terms and conditions

3. Cancellation – Modification – Termination of order

The Purchaser may cancel its order, without any penalty, as long as the Supplier has not accepted it or has not started its execution. The Purchaser may at any time modify its order subject to the Supplier’s agreement. In the event of total or partial non-performance by the Supplier of any of its obligations under the order, the latter and any other order in progress may be terminated by the Purchaser as of right and without any other formality, 15 (fifteen) days after formal notice has remained unsuccessful, without prejudice to the penalties for delay and the compensation that may be requested from the Supplier in reparation for the damage suffered by the Purchaser

4. Obligation of the Supplier

The Supplier’s compliance with the terms of the order, in particular with regard to deadlines, dates, compliance and performance, constitutes an obligation of result

5. Delivery times – Penalties for delay

Compliance with the delivery deadlines set out in the order is a decisive condition of the Purchaser’s order. The delivery must be made in its entirety, without splitting it up, except with prior and specific authorisation. Any incident likely to cause an anomaly and/or a delay in delivery shall be immediately reported to the Purchaser by the Supplier. The absence of information from the Supplier on the probability of a delay or the occurrence of an event likely to generate a delay shall engage the responsibility of the Supplier. The Supplier shall be liable for any excess of the delivery time and may be liable for compensation for the loss suffered. The quantities indicated on the order form must be respected in their entirety and the products delivered must be packaged in adequate conditions, under the responsibility of the Supplier, who will assume, unless otherwise agreed, the risks of breakage, loss and damage. In the event that a Party fails to fulfil one or other of its obligations, the creditor may, pursuant to Article 1223 of the Civil Code, 8 (eight) days after receipt by the debtor of a formal notice served by registered letter with acknowledgement of receipt, of the obligation to perform which has remained without effect, if it has not yet paid all or part of the performance, to notify the debtor as soon as possible of its decision to accept imperfect performance of the contract and to reduce the price proportionately. The acceptance by the debtor of the creditor’s decision to reduce the price shall be in writing. In the absence of an agreement between the parties on the amount of this proportional reduction of the price, it shall be determined by an expert in accordance with Article 1592 of the Civil Code. In the event that the creditor of the obligation has already paid the price, in whole or in part, he may, in the absence of agreement between the Parties, ask the judge to reduce the price. The delivery times requested by the Purchaser and accepted by the Supplier are a substantial condition of the contract. The Supplier shall be fully responsible for any delay in delivery and shall bear all the direct or indirect harmful consequences thereof, without prejudice to the right of the Purchaser, if the delay exceeds 7 (seven) days:

In addition to the application of the above-mentioned penalties, any delay in delivery shall automatically result in the Supplier being delisted, if the Purchaser so wishes. Deliveries must be made on the days and at the times specified in the Quality Assurance Guide given to Suppliers. Delivery times are for goods delivered to the site designated by the Purchaser on the order. On the other hand, if the delivery of all or part of the supply is not carried out within the contractual deadlines, the Purchaser shall invoice the Supplier for the additional costs resulting from this. The delivery must be accompanied by a note stating the number of this order, the reference of the goods, their quantity and their weight (net and gross)

6. Administrative situation – Safety – Environment

The Supplier certifies on its honour that the products sold are made in compliance with labour legislation, in particular with regard to clandestine work and child labour (convention adopted by the United Nations General Assembly on 20 November 1989). The Supplier shall maintain this commitment in force for as long as its commercial relations with the Purchaser last. The Supplier also certifies that its activity complies with all laws, regulations, standards relating to safety, the environment and the legislation of its country. In addition, the Supplier shall ensure the delivery of its product or service in compliance with the safety and environmental rules applicable in France. The Supplier shall inform the Purchaser of any specific environmental and safety aspects of its service or supply. In this respect, the Supplier must in particular follow the document “Supplier Quality Assurance Guide” and the “Prevention Plan” (if applicable). The Supplier therefore fully assumes any infringement of safety and the environment caused by it, both with regard to the Purchaser and to third parties, in addition to the possibility of terminating the order at its own expense

7. Packaging – Transport – Delivery

The Supplier shall comply with the terms of the order (address, incoterm, etc.).

The packaging must be suitable for the means of transport used and the product transported in accordance with the technical specifications, the standards in force or, in their absence, best practices. The separate packing list must mention the marks and inscriptions specified in the order, and in any case the Purchaser’s order number, the delivery point, the indication of the nature of the products, the markings necessary for proper assembly, as well as the weight and the lifting points. In the event of failure to comply with the obligations described above, the Purchaser may, at its discretion, either return part or all of the packages at the Supplier’s expense, or charge the Supplier for the resulting additional costs. Only the quantities ordered will be accepted; the Purchaser reserves the right to return at the Supplier’s expense any product not ordered. Unless otherwise agreed, the quantities delivered must comply with the quantities ordered within the following tolerances:

No early delivery will be accepted without the written agreement of the Purchaser

8. Acceptance-Quality

Acceptance is the act by which the Purchaser inspects the apparent condition of the products, their packaging, the quantities delivered, the compliance with the special conditions of the order, the models, the drawings, the specified standards and specifications supplied. The observations made at the time of acceptance and recorded in a report are enforceable on the Supplier. The full inspections of the conformity of the products can only take place when the products are used. This inspection cannot be limited in time since it depends on the date of use of the products. The Purchaser shall have the right to refuse products that do not comply with the order and shall notify the Supplier of this refusal in writing. The Purchaser reserves the right, at its option:

The conformity of the products delivered also concerns the quantities ordered, which may be subject to reservations and give rise to “penalties”.

8 (eight) calendar days after an unsuccessful formal notice of default, the Purchaser itself shall apply:

The Supplier may not in any case exempt itself from its responsibility, particularly with regard to the guarantee for hidden defects. Any claim relating to defects in the supply, whether or not such defects are apparent, may be made by the Purchaser at any time after receipt of the goods, without any limitation period being applicable. In all cases, the right to damages is reserved to the Purchaser. In addition, the Supplier shall be deemed to be fully liable to the Purchaser for all the harmful consequences of any lack of conformity and quality of the products, services or goods delivered, both in terms of quality and quantity, and shall fully compensate the Purchaser for any damage that may result. These claims may be made even if the defective material has already been worked on in the factory or if it has been applied or assembled and even if the invoices relating to the defective supplies have already been paid. In addition to the application of the provisions set out above, the Purchaser shall be entitled to request, in the event of non-conformity of the products, services or goods delivered, the delisting of the Supplier

9. Prices

The price accepted at the time of the order is firm and non-revisable. The price indicated on the order, which includes packaging costs as well as any other costs, expenses, risks or charges related to the execution of the order, may not be modified without the prior agreement of the Purchaser, formalised either by an amendment to the order form, or by a new order form cancelling and replacing the initial document, allowing only invoices to be drawn up at prices different from the initial prices.

10. Payment terms – Invoicing

Payment shall be made by bank transfer. Each invoice, if it has not been agreed to send it electronically, shall be sent to the Purchaser and shall be accompanied by the necessary supporting documents.

Only one invoice shall correspond to each delivery, which, in order to be paid within the agreed time limits, shall include, in addition to the legal information, at least the following information:

Any payment of a retention of guarantee on its due date shall be made on the express condition that all reservations formulated on acceptance have been lifted. At the decision of the Purchaser, any sum owed by the Supplier in respect of any order may be offset against invoices due or that will become due from the Supplier. The invoice must be sent to gestion@fgindustries.com in PDF format, or by post to the registered office before the 5th of the month following the date of dispatch. Invoices bearing incidental expenses (such as transport, etc.) must be accompanied by supporting documents for these expenses. Failure by the Supplier to deliver, in whole or in part, shall automatically result in the Purchaser retaining the price until full delivery of the ordered products or, if the price has already been paid, in whole or in part, the immediate return of the sums paid in this respect by the Purchaser to the Supplier.

In any event, payment shall not imply pure and simple acceptance of the products delivered and the price invoiced, nor shall it prejudge a waiver of subsequent claims

11. Insurance – Warranty

The Supplier shall take out insurance likely to cover the amounts that the Purchaser would be led to claim from it under the manufacturer’s liability and/or under the warranty. The warranty given by the Suppliers is full and complete. As part of the warranty granted by the Purchaser to customers, the Supplier is obliged, at the Purchaser’s choice, to replace or reimburse the defective part or equipment, without prejudice to the costs incurred by the Purchaser. The goods for which the Purchaser has requested reimbursement from the Supplier shall be invoiced to the Supplier at the rate in force on the date of invoicing. Likewise, the Supplier shall pay the Purchaser the cost of any repair of the defective goods by the Purchaser. Finally, the Purchaser reserves the right to call into question, at any time, the civil liability of the Supplier in all cases where an action would be brought against it, concerning material or physical damage which would be the consequence of the material, design or manufacturing defect of the products delivered by the Supplier and incorporated into the products or resold in the state to the customers. The Supplier shall guarantee and hold the Purchaser harmless against any defect or any vice, apparent or hidden, resulting from a design error, a material or manufacturing defect and rendering the ordered products unfit for their use and destination, and shall indemnify the Purchaser for any direct or indirect material or immaterial prejudice that may result therefrom, and in particular damage of any kind caused to persons and/or property. The Supplier shall, consequently, ensure at its own expense the repair or replacement of the products or defective parts that may prove necessary. Finally, the Purchaser shall benefit from the Manufacturer’s warranty relating to the products delivered. It is the Supplier’s responsibility to take out, at its own expense, the necessary insurance to cover the products until their arrival at the agreed place of delivery, as well as the liabilities incurred as a result of the execution of the orders for any physical, material and immaterial damage and to justify this to the Purchaser, at the latter’s first request. This insurance shall also cover cases of product recall.  The Supplier shall provide a copy of the said insurance policy and proof of payment of the premiums at the first request of the Purchaser

12. Liability of the Supplier

The Supplier shall be liable for any product it delivers to the Purchaser. In the event of non-conforming delivery (missing, late, non-conformity of the Products), the Supplier shall: take back, replace, remake or correct any supply or service in question, and repair any loss or material and immaterial damage suffered by the Purchaser, in particular in the event of a line stoppage at its customers’ premises, without prejudice to any other claim and to the right of the Purchaser to have the order carried out or completed by a third party at the expense and risk of the defaulting Supplier. Any supplies that are rejected and not taken back shall be stored or reshipped at the Supplier’s expense and risk.

The Purchaser, at the end of a storage period of 3 (three) months from the notification provided for in the above paragraph, reserves the right to dispose of them as it sees fit

13. Intellectual property – Confidentiality

Any document, material, verbal or written indication, communicated to the Supplier is and remains the property of the Purchaser and must not under any circumstances be disclosed and/or used on behalf of third parties. The Supplier shall expressly refrain, under penalty of damages and without prejudice to the application of any sanction prescribed by law, from delivering to anyone other than the Purchaser parts manufactured on the basis of the Purchaser’s drawings, models or matrix, from communicating to third parties the composition of the materials used, or drawings, as well as any information that the Purchaser may be led to provide to it. In the event that the temporary or definitive prohibition on the use of an element of the software or the object of the order made by the Supplier is the consequence of an infringement action or a transaction, the Supplier shall obtain, at its own expense and as soon as possible, either the right for the Purchaser to continue using this element, or the replacement of the element in question by a strictly equivalent element. In the event of an amicable or legal claim by a third party, the Supplier shall immediately substitute itself for the Purchaser and ensure the defence in its place, it being understood that any sums whatsoever that may be disbursed by the Purchaser for costs and fees or even damages paid following convictions shall be fully reimbursed by the Supplier to the Purchaser, without prejudice to any other right of the latter. Patentable inventions and protectable creations, as well as their results resulting from the order, belong to the Purchaser, unless the Supplier establishes that they result from its own inventive activity, independently of the order. The Supplier shall not exhibit parts manufactured according to the Purchaser’s drawings and models

14. Force Majeure

The party invoking a case of force majeure shall notify the other party within 3 (three) days of the occurrence of the event, and shall inform it of the probable duration of its effects. It shall make every effort to minimise the consequences. If the force majeure lasts for more than 60 (sixty) days, only the price of the deliveries made or the parts of the order executed before the onset of the force majeure shall be due by the Purchaser. Any excess amount paid in advance by the Purchaser shall be reimbursed by the Supplier. A strike at the Supplier and/or its subcontractors and/or its Suppliers shall not be considered as force majeure. In the event of war, revolution, disaster, pandemic, occupation of the factory by third parties or any other case of force majeure of such a nature as to hinder the normal operation of the Purchaser, the Purchaser shall have the right to cancel the contract as long as the goods have not been received in accordance with the requested Incoterm. The cancellation shall be made by simple letter and without judicial intervention. In the event of force majeure that hinders the normal operation of the Supplier, the Supplier shall notify the Purchaser as soon as possible. The Purchaser reserves the right to cancel the order by simple letter and without legal intervention, if such a situation would have serious consequences for it

15. Transfer

The order is neither assignable nor transferable by the Supplier in whole or in part without the express written consent of the Purchaser. The Supplier shall promptly notify the Purchaser of any material change in its legal structure or any change in the control of its capital

16. Jurisdiction – Applicable law

The Purchaser and the Supplier undertake to seek any amicable solution to the dispute(s) or claim(s) between the parties.

1: In the absence of an agreement, any dispute concerning the purchase of products on European territory shall be brought before the Commercial Court of Nevers (France). It is expressly agreed that any dispute shall be settled according to French law (excluding the application of the Vienna Convention on the International Sale of Goods), regardless of the Supplier’s nationality, notwithstanding any provision to the contrary in the Supplier’s general terms and conditions of sale or in any of its commercial documents (in particular, delivery notes or invoices). Acceptance of the order by the Supplier implies its adherence to these General Terms and Conditions of Purchase and Special Terms and Conditions unless they have been the subject of written reservations formally accepted by the Purchaser. The version of the initial order is the only one that is official.

2: Any dispute between a Supplier outside the European Union and the Purchaser shall be settled by arbitration in accordance with the conciliation rules of the International Chamber of Commerce (ICC). Each party shall appoint an arbitrator, the third arbitrator being appointed by the ICC Court of Arbitration. The place of arbitration shall be Paris (FRANCE). The language of arbitration shall be French. The law applicable to this contract shall be that of the Vienna Convention on the International Sale of Goods. The arbitral award shall be final and binding on the parties who shall perform it voluntarily, without precluding judicial enforcement of the award by any court having jurisdiction over the defaulting party.