Cookson Electronics Standard Terms and Conditions of Sale
1. Definitions and Interpretation
1.1 In these Conditions the following words have the following meanings:
“Company” means Cookson Electronics Assembly Materials S.A.S (registered no. 404 477 572 00022) trading as Cookson Electronics Assembly Materials whose registered office is at Boulevard du Cormier, 49307 Cholet;
“Confidential Information” means secret or confidential commercial, financial, marketing, technical or other information, know-how, trade secrets and other information in any form or medium whether disclosed orally or in writing before or after the date of the Contract, together with any reproductions of such information in any form or medium or any part(s) of this information;
“Contract” means any contract between the Company and the Customer for the sale of Goods;
“Customer” means the person(s), firm or company who purchases the Goods from the Company;
“Goods” means any goods agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them);
“Group Company” means any subsidiary or holding company of the Company and any subsidiary of such holding company(ies) (in each case from time to time) (and the terms "subsidiary" and "holding company" shall have the meanings given to them by Article L233-3 of the Code of Commerce);
“Intellectual Property” means any patent, copyright, database right, moral right, design right, registered design, trade mark, service mark, domain name, know-how, right of confidence, utility model, unregistered design or, where relevant any application for any such right, or any other industrial or intellectual property right of any nature whatsoever subsisting in any part of the world;
“Toll Manufacture” means the process whereby the Customer procures the supply of raw materials necessary for the manufacture of the Goods, and the Company provides such services as are necessary for the manufacture of the Goods, as more particularly detailed in Condition 13;
“Working Day” means a day Monday to Friday other than public holidays in France;
2. Basis of Contract
2.1 Subject to any variation under Condition 2.2, each Contract shall be subject to these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document whatsoever and whenever). For the avoidance of doubt, the Cookson Electronics “Summary of Supply and Quality Assurance Systems” statement, if supplied by the Company, shall not constitute a legally binding document and does not form part of these Conditions. The Standard Terms and Conditions for Sale are attached to all commercial documents of the Company (prices, proposals, order forms, receipts of order forms, invoices, etc).
2.2 The Company does not accept that any of the Customer's technical or marketing literature, quality assurance agreements, supplier quality manuals, logistics manuals, labelling and packaging requirements standards and any other similar documents or requirements are or will be incorporated into any contract between the parties, whether the same have been made available or provided to the Company whether before or after the date of the Contract unless expressly agreed otherwise in writing by the parties. The Company will not be deemed to have accepted any of such documents or requirements by downloading or using the same, notwithstanding the terms of any website terms and conditions of the Customer on its supplier portal website or otherwise.
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2.3 Any variation to these Conditions and any representations given by any person about the Goods by or on behalf of the Company shall have no effect unless expressly agreed in writing, refers specifically to the Contract and is executed by a duly authorised representative of the Company.
2.4 Any quotation or estimate made by the Company is given subject to these Conditions. Without prejudice to the Company's right not to accept an order, and unless stipulated otherwise, quotations shall be valid for 30 days from date of issue. Save in the case of the Stencils business, the minimum order quantity for an order shall not be less than 300 € HT. Exceptionally, the Company may accept an order for a lesser amount subject to the payment of the administrative fees equal to the difference between 300 € and the total amount of the Order. Any quotation in respect to the sales of Goods are subject to available stocks. Orders submitted beyond the duration of the validity or subject to different conditions for the quotation shall be final subject to written confirmation of the Company and subject to the reservations made in the written confirmation.
2.5 Each order for Goods by the Customer from the Company shall be deemed to be known by the Customer, and unless expressly stipulated otherwise in writing by the Company, to be entirely subject to these Conditions at the exclusion of any other Conditions of the Customer or any other terms of the Customer which would not be signed by the Company and shall be deemed to be an offer by the Customer to purchase Goods subject to these Conditions.
2.6 No order placed by the Customer shall be deemed to be accepted by the Company in either cases, from the delivery to the Customer of the acknowledgment of receipt, either from the acceptance without reservation, regardless of its format: Fax, mail EDI etc., of the quotation of the Company or from the signature of a contract. In accordance with the law, no contract duly concluded may be annulled in whole or in part by the Customer. Any order shall be accepted entirely at the discretion of the Company.
2.7 The Customer can only cancel an order (or part of an order) which the Company has already accepted, with the Company's prior agreement in writing. The Company is not bound to agree to any such cancellation and may complete such order even if the Customer purports to cancel it.
2.8 It is the Customer's obligation to ensure that the terms of its order and any designs, drawings, specifications and any other data provided to the Company for any purpose connected with any Contract are complete and accurate. If the Company's performance of the Contract is suspended following the Company's acceptance of the order or is delayed through the Customer's default (including, without limitation, lack of, incomplete or incorrect instructions or refusal to collect or accept delivery of the Goods), the Company shall be entitled to and the Customer shall immediately make payment in accordance with the Contract for any part of the Goods which were already despatched to the Customer or were ready for despatch or were being manufactured or appropriated to the Company's order prior to the suspension or delay, and for any other additional costs that the Company incurs including storage, insurance and interest as a result of such suspension or delay provided that (a) if the Customer fails to collect or accept delivery of the Goods or any part of them within 30 days of written notification from the Company that the Goods are ready for collection or delivery, the Company will be entitled (without prejudice to the Company's other remedies under the Contract for such breach) to sell the Goods and to apply the proceeds of sale (if sold) towards payment of all outstanding sums owned by the Customer to the Company under the Contract; and (b) the Company shall store the Goods at the Customer's risk from the date upon which they are ready for despatch.
2.9 It is the Customer's obligation to ensure that the terms of its order and any designs, drawings, specifications and any other data provided to the Company for any purpose connected with any Contract are complete and accurate.
2.10 The Customer shall be solely responsible for the accuracy of the Customer's designs, drawings, specifications and other data supplied to the Company by the Customer or the 2 of 13
Customer's employees or agents and in conformity with which the Company is to manufacture the Goods even if the Company examines, inspects, studies or comments to the Customer upon any such designs, drawings, specifications or other data.
2.11 The Company reserves the right without liability to the Customer to make any changes in the specifications of the Goods which do not materially affect the quality or performance of the Goods.
3. Description of the Goods
3.1 The quantity, quality, description of, and any specification for, the Goods shall be set out either, in the Company's acknowledgement of order, either in its absence, the Company's quotation. or in the Contract accepted by both parties.
3.2 The Company's employees or agents are not authorised to make any representations concerning the Goods which are not made in any visual or written sales literature issued by the Company and the Company shall not accept liability for such representations unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed in writing and agreed as incorporated in the Contract.
3.3 All drawings, descriptive matter, specifications, sales literature and advertising issued by the Company and any descriptions, details or illustrations contained in the Company's catalogues or brochures or sales literature are issued or published for the sole purpose of giving an approximate idea of the Goods described in them and they will not form part of the Contract unless specifically agreed in writing or any technical specification which is expressly stated to be warranted.
3.4 Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Company and agreed to be incorporated in the Contract is followed or acted upon entirely at the Customers own risk and does not constitute a warranty by the Company as to the fitness for purpose of the Goods or otherwise constitutes a warranty or recommendation by the Company.
4. Delivery and Acceptance of Goods
4.1 Unless otherwise agreed in writing by the Company delivery of the Goods shall take place at the Company's place of business as set out in the Order form or the Contract, or otherwise at the Company headquarters during normal business hours. Including In the case of delivery originating from the warehouse or “EX WORKS”, the Customer shall take delivery of the Goods within 7 days of the Company giving the Customer notice that the Goods are ready for delivery, using its own human and material means.
4.2 Any dates specified by the Company for delivery of the Goods are intended to be an estimate only and time for delivery shall not be of the essence. If no dates are specified, delivery will be within a reasonable time.
4.3 In the event that binding delivery dates may have been expressly accepted in writing and may have not been met, the Customer shall not in any case terminate the sale or the performance of the manufacturing contract or reject delayed Goods, nor claim damages. Contractual penalties may apply subject to prior notification by the Customer of the grounds for such penalties, delivery delay, incomplete or faulty delivery. Such penalties shall be capped to 5 % of the value of the delayed Goods.
4.4 The Customer will provide at its expense at the place of delivery adequate and appropriate equipment and manual labour for unloading the Goods. In any case, the Customer shall bear all risks and costs attached to the delivery. Therefore, the Customer will provide at its expense, at the delivery of the Goods, all protective measures over the debtor's assets required by the law. The Customer shall list all reservations on the delivery form of the Goods, and shall request its delivery
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company or its agent to countersign. The Customer shall then notify within 3 days the delivery company by recorded mail, in accordance with the procedure set out in Article L 133-3 of the Code of Commerce. For delivery outside France, the delivery of Goods shall take place either “EX WORKS” or “CIP” in the event that the Company may be in charge of the transport delivery in accordance with the definitions set out in the 2000 Incoterms. Any date in relation to the supply of the Goods or the manufacturing specified by the Company for delivery of the Goods shall be deemed as the delivery date. The delivery of the Goods or the manufacturing shall be deemed effective at the date and location for any “EX WORKS” delivery or at the date of supply to the first transport delivery company for ”CIP” delivery.
4.5 If the Company delivers to the Customer a quantity of Goods of up to 5% more or less than the quantity ordered by the Customer, the Customer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for the Goods delivered at the pro rata Contract rate.
4.6 The Company shall be entitled at its discretion to make delivery of the Goods by instalments and to invoice the Customer for each instalment individually. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to delivery an one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated or to refuse to accept subsequent instalments.
4.7 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company's place of business to the carrier shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
4.8 The Customer shall be deemed to have accepted the Goods as being in accordance with the Contract: (a) within 14 days of the date of delivery of the Goods, unless the Customer notifies the Company in writing of any defect or other failure of the Goods to conform with the Contract (which would be apparent upon reasonable visual inspection and testing of the Goods within such 14 day period); or (b) the Customer notifies the Company in writing of any defect or other failure of the Goods to conform with the Contract within 14 days of discovery of the fault or defect if the fault or defect was not discoverable on a reasonable visual inspection, and in any event within 12 months of the delivery of the Goods, failing which the Customer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure (in accordance with Condition 9), and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
4.9 Except for defective Goods (which are covered by Condition 4.8) Goods delivered but not yet accepted may not be returned unless their return is agreed in advance in writing by the Company, and subject to the following additional conditions:
(a) such returns are made within 14 days of delivery of those Goods,
(b) all transport and other re-delivery costs of whatever nature shall be paid by the Customer:
(c) payment by the Customer to the Company of a restocking charge of 20% of the net invoice value of the relevant Goods; and
(d) returned Goods shall be accompanied by a written record of invoice number, date and a note of reasons for their return.
4.10 The liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods. The Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company's negligence).
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5. Passing of Risk and Legal Title
5.1 The Goods shall be at the risk of the Customer from the time of delivery or deemed delivery under Condition 4.3. This means at the date of supply of the Goods for the delivery from the warehouse or “EX WORKS” or at the date of supply to the first transport delivery company in the event that the Company in France may be in charge of the delivery as well as for the delivery of “CIP”. The Customer shall insure the Goods at no cost to the Company (to their full replacement value) against all loss (including without limitation, theft), damage and/or deterioration form the moment when delivery is deemed to have taken place until legal title to the Goods passes to the Customer.
5.2 Legal title to and property in the Goods shall remain vested in the Company (even though they have been delivered and risk has passed to the Customer) until: (a) payment in full, in cash or cleared funds, for all the Goods which are the subject of the Contract has been received by the Company, excluding any business assets provided by way of payment or any title creating an obligation to pay, and (b) all other money payable by the Customer to the Company on any other account or under the Contract or any other contract has been received by the Company. In the event of sums due by the Customers to the Company by virtue of the present article shall be compensated by any deposit provided to the Company.
5.3 Until legal title to and property in the Goods passes to the Customer: (a) the Customer shall hold the Goods on a fiduciary basis as the Company's bailee; (b) the Customer shall store the Goods at its premises in a proper manner in conditions which adequately protect and preserve the Goods and not tamper with any identification upon the Goods or their packaging and shall ensure that they are stored separately from any other goods (whether or not supplied by the Company) and are clearly identifiable as belonging to the Company and the Company shall be entitled to examine any such Goods in storage at any time during normal business hours upon giving the Customer reasonable notice of its intention to do so; (c) the Company may at any time, on demand and without prior notice, require the Customer to deliver the Goods up the Company and the Company may repossess and resell the Goods if any of the events specified in Condition 15 occurs or if any sum due to the Company from the Customer under the Contract or on any other account or under any other contract is not paid when due; (d) for the purposes of this Condition 5 the Company, its employees, agents and sub-contractors will be entitled to free and unrestricted access to any premises owned, occupied or controlled by the Customer and/or any other location where any of the Goods are situated at any time without prior notice; (e) the Company shall be entitled to maintain an action against the Customer for the price of the Goods notwithstanding the legal, equitable and beneficial title to and property in the Goods has not passed to the Customer; and (f) the Company hereby authorises the Customer to use and/or sell the Goods in the normal course of the Customer's business and to pass good title in the Goods to its customers, if they are purchasers in good faith without notice of the Company's rights. This right shall automatically cease on the occurrence of any event set out in Condition 14 and/or if any sum owed to the Company by the Customer is not paid when due. If the Customer sells the Goods prior to paying the full price thereof the Customer shall hold the proceeds of sale on trust for the Company and shall immediately pay the proceeds of the sale into a separate bank account. At the Company's request, the Customer shall assign to the Company all claims that the Customer may have against purchasers of the Goods from the Customer.
5.4 The Company's rights and remedies set out in this Condition 5 are in addition to and shall not in any way prejudice, limit or restrict any of the Company's other rights or remedies under the Contract or in law or equity.
6.1 The Customer shall keep and procure to be kept secret and strictly confidential by its employees all Confidential Information, technical formulas or concepts, belonging to the Company disclosed or obtained as a result of the relationship of the parties (in relation to a quotation,, the execution of an Order or a Contract) under the Contract and shall not use nor disclose the same 5 of 13
save for the purposes of the proper performance of the Contract or with the prior written consent of the Company. Where disclosure is made to any employee, consultant or agent, it shall be done subject to obligations equivalent to those set out in these Conditions and the Customer shall use its best endeavours to procure that any such employee, consultant or agent complies with such obligations. The Customer shall be responsible to the Company in respect of any disclosure or use of such Confidential Information by a person to whom disclosure is made.
6.2 The obligations of confidentiality in this Condition 6 shall not extend to any matter which either party can show: (a) is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under the Contract; (b) was in its written records prior to the date of the Contract free from an obligation of confidence; or (c) was independently disclosed to it by a third party entitled to disclose the same free from an obligation of confidence; (d) is required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.
6.3 The supply of Goods under the Contract shall not constitute a licence for the Customer to use the Confidential Information for any purpose other that for which the Confidential Information is provided to the Customer.
6.4 On expiry or termination of the Contract (for whatever reason) the Customer shall promptly return to the Company or dispose of in accordance with the Company's instructions all Confidential Information and other data and documents and copies thereof disclosed or supplied to the Customer pursuant to or in relation to the Contract and shall certify to the Company when the same has been completed.
7. Contract Price
7.1 Subject to Condition 7.2 below, the price for the Goods shall be the price set out in the Company's acceptance of order, or if none is stated on the acceptance of order, the price on the Company's quotation. This price is based on the current cost of raw materials, labour and other costs from which the price of the Goods is calculated.
7.2 If there is any variation in the cost of raw materials, labour and other costs between the date of order (or the acknowledgement of receipt of the Order for the Goods) or contract and delivery the Company shall be entitled by notice in writing to the Customer to adjust prices to reflect such variation. The new price will take effect on the date in the Company's notice.
7.3 Unless otherwise agreed in writing the price for the Goods shall be in euros exclusive of any value added tax or other similar taxes or levies and all costs or charges in relation to packaging, labelling, loading, unloading, carriage, freight and insurance, all of which amounts the Customer will pay, where appropriate, in addition when it is due to pay for the Goods, for French Customers and “EX WORKS” in accordance with the 2000 ICC Incoterms for the sale to Foreign Customers.
8. Payment Terms
8.1 The Company shall be entitled to invoice the Customer for the Goods on or after receipt of an order. Without prejudice to its other rights, when the Company tenders delivery of the Goods or the Customer wrongly fails to take delivery of the same, the Company may invoice the Customer at any time after the Goods are ready for delivery or deemed delivery under Condition 4.3.
8.2 Payment of the price for the Goods is due in euros 30 days after the earlier of (a) delivery of Goods, or attempted delivery as prescribed in Condition 8.1 or 4.3, (b) the date of invoice.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds. Time for payment shall be of the essence.
8.4 Notwithstanding any other provision, all payments payable to the Company under the Contract shall become due immediately upon termination of this Contract for whatever reason.
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8.5 The Customer shall make all payments due under the Contract without any deduction by way of bank transfer. Under no circumstances whatsoever, shall the Customer suspend or abstain from payment in the event of a claim against whole or part of the invoice.
8.6 Without prejudice to any other rights and remedies which the Company may have under the Contract the Company shall, in respect of all debts owed by the Customer to the company, have a general lien on any of the Customer's goods and property in the Company's possession and the Company shall be entitled after not less than 14 Working Days' notice to the Customer to dispose of such goods or property as the Company thinks fit and to apply the proceeds of sale towards the payment of such debts.
8.7 No indulgence granted by the Company to the Customer concerning the Customer's obligations under this Condition 8 shall be or be deemed to be a credit facility but if any such facility is granted to the Customer by the Company, the Company may withdraw it at its sole discretion at any time.
8.8 If any sum due from the Customer to the Company under the Contract or any other contract is not paid on or before the due date for payment then all sums then owing by the Customer to the Company shall become due and payable immediately and, without prejudice to any other right or remedy available to the Company whether in these Conditions or otherwise at law, the Company shall be entitled to: (a) cancel or suspend its performance of the Contract or any order including suspending deliveries of the Goods and suspending delivery of any other goods to the Customer until arrangements as to payment or credit have been established which are satisfactory to the Company; (b) any damages which the Company may be awarded by the courts; (c) to such of the Goods (or any goods supplied under any ether contract between the Customer and the Company) or as the Company may think fit; (d) require the Customer to pay for Goods prior to their despatch or collection from the Company's place of business; and (e) charge the Customer: (i) interest calculated in accordance with the law on late penalties, on a daily basis on all overdue amounts (both before and after judgement) until actual payment at three times the legal rate prevailing from time to time as from the date following the due date for payment, until payment is made in full; and (ii) the cost of obtaining judgment or payment to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure. In case of non payment or financial reports about the Customer being cause of serious concern, all due sums shall become payable immediately.
9.1 Without prejudice to Condition 12, if there is a defect in the materials or workmanship of the Goods or there is some other failure by the Company in relation to the conformity of the Goods with the Contract from the delivery date as defined in 4.1 , within a warranty period of (12) months, then the Company shall at its sole discretion: (a) repair to make good such defect or failure in such Goods free of charge to the Customer (including all costs of transportation of any Goods or materials to and from the Customer for that purpose); or (b) replace such Goods with Goods which are in all respects in accordance with the Contract; or (c) issue a refund or credit note to the Customer in respect of the defective Goods subject to a reimbursement claim to be entered by the Customer within 7 days following the identification of the alleged defect and to the Customer authorising the Company to test the defective Goods in its warehouse.
9.2 Condition 9.1 shall not apply unless the Customer: notifies the Company in writing of the alleged defect within fourty-eight (48) hours of delivery (if the fault or defect was discoverable on a visual inspection or testing under Condition 4.8) or within fourty-eight (48) hours of discovery of the fault or defect if the fault or defect was not discoverable on a visual inspection or testing under Condition 4.8 and in any event within 12 months of the delivery of the Goods to the Customer or such other period as agreed by the Company in writing, and (b) where it is reasonable to do so, promptly returns to the Company or such other person nominated by the Company a sample of the Goods within 14 days of giving the Company notice of the defect, carriage paid by the Company (to be reimbursed by the Customer in the event that investigation and inspection reveal the Goods
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not to be defective), for inspection, examination and testing and/or otherwise permit the Company to have access to the Goods the Customer's premises or other location where they may be. In the absence of such notice, the Goods shall be deemed in conformity with the Order or Contract. It is the Customer responsibility to establish evidence that Goods are defective. In case of delivery of defective Goods with respect to the Order or the Contract, the Customer may reject the delivery of the Goods.
9.3 The Company shall undertake quality and quantity control investigations prior to the delivery of the Goods in accordance with its own internal procedures to determine whether or not the Goods are defective, either using the sample of the Goods returned by the Customer in accordance with Condition 9.2 above, or by using a sample of the batch of Goods retained by the Company for quality assurance purposes prior to the delivery of the Goods to the Customer.
9.4 If the Company elects to replace the Goods pursuant to Condition 9.1 because the same are defective the Company shall deliver the replacement Goods to the Customer at the Company's own expense and the Customer shall make any arrangements as may be necessary to deliver up to the Company the defective Goods which are being replaced to the Company.
9.5 The Company shall be under no liability under the warranty at Condition 9.1 above: (a) in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company's instructions in relation to the use handling or storage of Goods (whether oral or in writing), and the latter is understood reuse, misuse or alteration or repair of the Goods without the Company's approval; (b) for any Goods manufactured or appropriated to the Contract in accordance with any design, drawing, specification, instruction or recommendation made or given to the Company by the Customer in accordance with specification, instructions or recommendations issued by the Customer; (c) in respect of any type of defect, damage or wear specifically excluded by the Company by notice in writing; or (d) if the Customer makes any further use of the Goods after the Company has given notice to the Customer that there is or may be a defect in the Goods or the Customer has become aware of a defect in the Goods in accordance with Condition 4.8 or 9.2.
9.6 The Customer agrees that unless expressly otherwise agreed the Goods are standard products which have not been specifically manufactured to the requirements of the Customer. The Company does not warrant that any Goods manufactured specifically to the requirements of the Customer will be free of defects to the extent that such defects are due to information (incorrect or otherwise) contained in the Customer's design, drawings or specifications or other data or written instructions or recommendations given by the Customer and the Company shall not accept any liability for such Goods. The Company does not warrant that the Goods shall be fit for any particular purpose unless expressly agreed in writing with the Customer on any acknowledgement of order for the Contract. In the event that the Goods provided to the Customer are manufactured by the Company, the warranty granted by the Company shall be strictly limited to the execution of the manufacturing services in accordance with the industry standards and the provisions of the Contract or the Order. The Company shall use professional standards of due care with regard to the execution of the services, being only subject to a best effort obligation. The Customer only shall be covered by the warranty.
9.7 The warranties set out in this document are the only warranties which shall be given by the Company and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract. At the expiry of the warranty period, all contractual obligations of the Company shall terminate.
10. Product Liability and Recall
10.1 The Customer shall ensure that it maintains adequate systems to ensure full traceability of Goods and recall of Goods on demand.
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10.2 The Customer shall provide all necessary assistance to the Company in any product recall requested by the Company so as to minimise claim for damages and shall provide all necessary
information to the Company on the storage and application of the Goods up to the date of any recall.
10.3 The Customer will comply with the Company's Customer Complaints Handling Process or such other Company procedure(s) relating to product recall and product liability as the Company shall specify.
10.4 In the case of a product liability claim or product recall claim relating to products into which the Goods have been incorporated the Customer shall:
10.4.1 immediately notify the Company in writing of any claim relating to the Goods of which it has notice;
10.4.2 make no admissions relating to the Goods or otherwise affecting the good will or reputation of the Company without the Company’s prior written consent;
10.4.3 provide all reasonable information documents and assistance to the Company as the Company shall request; and
10.4.4 at the Company’s request shall co-operate with the Company and shall procure that the Customer’s insurers shall co-operate with the Company to allow the Company to mitigate the claim.
11. Exclusion and Limitation of Liability
11.1 Conditions 9, 10 and the following provisions set out the entire liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer howsoever arising under or in connection with this Contract including but not limited to: (a) any breach of these Conditions or the Contract; and (b) any representations, statement or tortious act or omission including negligence arising under or in connection with the Contract or any other liability or loss whatever including without limitation breach of statutory duty or strict liability (subject always to Condition 11.2).
11.2 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company's negligence, or for fraudulent misrepresentation.
THE CUSTOMER'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITIONS 11.3 and 11.4.
11.3 The Company's warranty and total liability howsoever arising under or in connection with this Contract shall be strictly limited to 100% of the price of manufacturing of the Goods incriminated or the price or the price of the Order in respect of which the Customer suffered or incurred such loss or damage and shall not include any indirect, incidental, or consequential damages.
11.4 The Company shall not be liable to the Customer for: (a) any loss of profit or loss of production (direct or indirect), (b) indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) or (c) loss or damage (contractual, tortious, breach of statutory duty or otherwise) which arises out of or in connection with the Contract, or for any liability incurred by the Customer to any other person for any economic loss, claim for damages or awards howsoever arising from the Goods or otherwise.
11.5 The price of the Goods has been calculated on the basis that the Company will exclude or limit its liability as set out in the Contract and the Customer by placing an order agrees and warrants that the Customer shall insure or has the opportunity to insure against or bear itself any loss for which the Company has excluded or limited its liability in the Contract and the Company shall have no further liability to the Customer.
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11.6 The Customer agrees that the limitations of liability in this Condition are fair and reasonable with due regard to the actual price of the Goods, availability in the market of alternative products, the Customer's ability to restrict liability for the Goods into which the Goods are incorporated, the Customer’s own terms and conditions of sale which restrict liability for the Products into which the Goods have been incorporated and the potential losses that the Customer is liable to suffer as a result of the Company's default and the Customer's ability to insure for the losses and damages arising.
12. Customer Indemnity
The Customer acknowledges that the Company places particular reliance upon the provisions of the Contract and in addition to any other remedy available to the Company, the Customer irrevocably and unconditionally agrees to indemnify the Company, its employees, sub-contractors and agents in full and on demand and keep them so indemnified against all claims, demands, actions proceedings and all damages, losses, costs and expenses (including without limitation legal and other professional advisers' fees made against or incurred or suffered by any of them) in relation to:
12.1 the manufacture, sale and use of Goods manufactured specifically to the requirements of the Customer contained in the Customer's design, drawings or specifications or other data or written requirements given by the Customer to the Company;
12.2 any claims that any Intellectual Property or Confidential Information or other exclusive right of any third party has been infringed through the manufacture, sale or use of such Goods;
12.3 the cancellation of any order by the Customer after its acceptance by the Company in accordance with Condition 2.7; or
12.4 any breach by the Customer of its obligations under the Contract.
13. Toll Manufacturing
This Condition 13 applies only to contracts for Toll Manufacturing of Goods:
13.1 The Customer acknowledges that where the Company acts as Toll Manufacturer of the Goods, the Company shall hold such raw materials as the Customer may supply, and perform the manufacturing services, as a contractual bailee. The Customer shall ensure that any invoices received from the supplier of the raw materials are settled promptly and in any event within the payment terms granted by such supplier and neither the Customer nor the supplier of the raw materials shall be entitled to enter onto the Company’s premises to recover the Goods for whatever reason without the express written consent of the Company.
13.2 The Company shall accept no liability for defects in the manufactured Goods arising solely out of any defect or fault in the raw materials provided to the Company by the Customer pursuant to a Toll Manufacturing arrangement, and provides no warranty as to the quality or fitness for purpose of any Goods manufactured under such an arrangement, save that it warrants that it shall provide the manufacturing services with reasonable care and skill.
13.3 The Customer agrees that it shall, at the Company’s request and expense assign any warranties and rights of action it may have against the supplier of the raw materials provided to the Company pursuant to a Toll Manufacturing arrangement and it will provide any and all reasonable assistance to the Company in relation to any and all claims for breach of warranty, defective Goods or any other right of action that the Company may have (including but not limited to being joined as a party to any proceedings against the supplier of the raw materials and adding its name to proceedings).
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13.4 The Customer shall use reasonable endeavours to ensure that any contract between it and the supplier of the raw materials contains a provision enabling the Company to enforce any remedies for defective services or goods against such supplier under the terms of such contract.
14. Force Majeure
14.1 The Company reserves the right to suspend or cancel in whole or in part its obligation to manufacture the Goods and/or provide its services (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business and its obligations under the Contract due to circumstances beyond the reasonable control of the Company affecting its ability to perform any of its obligations under the Contract including, without limitation, Act of God, fire, flood, lightning, war, revolution, act of terrorism, riot or civil commotion, strikes, lock-outs or other industrial action, work cessation in whole or in part in the sites of the Company or its suppliers and subcontractors, embargo, epidemy, whether of the affected party's own employees or others, failure of supplies of power, fuel, transport, equipment, raw materials or other goods or services, of suppliers and subcontractors interruption, legal or administrative measure preventing, restricting, delaying or prohibiting the manufacturing or the import of the Product or the execution of the service, .provided that, if the event of force majeure continues for a continuous period in excess of 30 days in addition to the Customer's rights, the Company shall be entitled to give notice in writing to the Customer to terminate the Contract.
14.2 In the event that a case of force majeure may arise, the Company may notify the Customer within 2 days of the event or the knowledge of it.
14.3 In case of delay, the time for delivery shall be extended so as to cover the delayed time period caused by the event of force majeure.
14.4 If, further to a case of force majeure as set out above, the Company is unable to execute the Order or the Contract in whole or in part in the event that the case of force majeure may last beyond two (2) months, each party may relinquish such execution.
15. Breach of Contract or Insolvency
15.1 The Company may as it thinks fit (without prejudice to any other rights or remedies it may have against the Customer) immediately suspend further performance of the Contract or delivery of the Goods or stop any Goods in transit or by notice in writing to the Customer terminate the Contract without liability to the Company if: (a) the Customer commits a material breach of any of its obligations under the Contract which is incapable of remedy, or (b) the Customer fails to remedy a breach of its obligations under the Contract which is capable of remedy, or persists in any breach of any of its obligations under the Contract after having been requested in writing by the Company to remedy or desist from such breach within a period of 14 days; (c) any amount payable under the Contract is not paid within 7 days of its due date for payment in accordance with this Contract; (d) any distress execution or diligence is levied upon any of the Customer's goods or property; (e) the Customer (being an individual) or any partner in the Customer (being a partnership) is unable to pay its debts or presents its own or has presented against it a bankruptcy petition or a bankruptcy order is made against it; (f) the Customer (being an individual) or any partner in the Customer (being a partnership) proposes a voluntary arrangement or an interim order is made in relation to the Customer or any partner in the Customer under the Insolvency negotiations commenced by the Customer or any arrangement involving the Customer or any partner in its debts or the Customer calls a meeting for the purpose of passing a resolution to wind up its company, or such a resolution is passed or the Customer presents or has presented a petition to wind up or present or have presented a petition to appoint an administrator or have property or assets; (g) the Customer ceases, or threatens to cease, to carry on business; or (h) a secured lender to the Customer takes any steps to obtain possession of the property on which it has security or otherwise to enforce its security; (i) the Customer suffers or undergoes any procedure analogous to any of those specified in Conditions 15.1 (d) to 15.1 (h) inclusive above or any other procedure available in the country in which the Customer is constituted, established or domiciled against or to an insolvent debtor or
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available to the credits of such a debtor; (j) the Customer undergoes a change of control and for the purposes of this Condition 15.1 (j), "control" has the meaning specified under French law; (k) the Company reasonable believes that any of the events specified in Condition 15.1 (a) to (j) above is about to occur in relation to the Customer.
15.2 Notwithstanding any such termination or suspension in accordance with Condition 15.1 above the Customer shall pay the Company at the Contract rate for all Goods delivered up to and including the date of suspension or termination and the termination of the Contract or any contract for whatever reason shall not affect the rights or remedies of either party in respect of any antecedent breach or in respect of any such owing or to become owing to the other.
16.1 The Customer shall not be entitled to assign, charge, hold on trust, subcontract or transfer the Contract or any part of it without the prior consent of the Company in writing. The Company may assign, charge, subcontract or transfer the Contract or any part of it to any person. The Customer shall notify the Company within forty-eight hours of any distress levied by any third party upon any of the Customer's goods or property located in its stores or warehouse, as well as in case of transfer, any pledge of business assets or any proceedings arising.
16.2 No person who is not a party to the Contract save for any Group Company (including any employee, officer, agent, representative or sub-contractor of either party) shall have the right Even if a person who is not a party to the Contract (including any Group Company employee, officer, agent, representative or sub-contract of either party) has a right to enforce any term of the Contract, the parties may vary or cancel the Contract by agreement between them without requiring the consent of such third party to enforce any term of the Contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the Company and the Customer which agreement must refer to this Condition 16.2.
16.3 Even if a person who is not a party to the Contract (including any Group Company employee, officer, agent, representative or sub-contract of either party) has a right to enforce any term of the Contract, the parties may vary or cancel the Contract by agreement between them without requiring the consent of such third party.
16.4 Any Intellectual Property rights (including, without limitation) patents, registered and unregistered designs, trademarks and service marks (registered or not) and copyright and any applications for them) created by the Company in the design use or manufacture of the manufacture of the Goods shall remain the Company's property. Nothing in the Contract shall be deemed to have given the Customer a licence or any other right to use any of the Intellectual Property rights of the Company. The Customer has no right (and shall not permit any third party) to copy, adapt or reverse engineer the Goods under any circumstances. .The Customer warrants that its employees shall respect the intellectual and industrial property rights of the Company.
16.5 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.
16.6 The rights and remedies of either party in respect of the Contract shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time granted by such party to the other nor by any failure of, or delay by the said party in ascertaining or exercising any such rights or remedies. The waiver by either party of any breach of the Contract shall not prevent he subsequent enforcement of that breach and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.
16.7 If at any time any one or more of the Conditions of the Contract (or any sub-Condition or paragraph or any part of one or more of these Conditions) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from the Contract and the validity and/or enforceability of the remaining provisions of the Contract shall not in any way be affected or impaired as a result of that omission.
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16.8 The Contract sets out the entire agreement and understanding between the Customer and the Company in connection with the sale of the Goods and shall supersede and replace all documentation previously issued by the Company purporting to set out its terms and conditions of sale of the Goods.
17. Law and Jurisdiction
17.1 This Contract and any dispute or claim arising out of or in connection with it shall be governed by and be construed in all respects in accordance with French law.
17.2 All disputes or claims arising out of or relating to this Contract shall be subject to the exclusive jurisdiction of the French courts with territorial competence in relation to the headquarters of the Company to which the Customer irrevocably submits.
18. Export Sales
Notwithstanding any other term or condition where Goods are sold for export outside France.
18.1 The provisions of (1) the Uniform Law on Formation of Contracts for the International Sale of Goods and the Convention relating thereto, (2) the Uniform Law on the International Sale of Goods of 1964 and the Convention relating thereto and (3) the United Nations Convention on Contracts for the International Sale of Goods of 1980.
18.2 The currency will be euros unless otherwise stated on the Company's acknowledgement of order. Prices quoted in acknowledgement of order in a currency other than euros may, unless otherwise agreed in writing by the Company, be subject to amendment in the event of fluctuation in the exchange rate prior to the date of invoice.
18.3 A deposit of 50% (or such other % as the Company may in its absolute discretion stipulate) of the Contract price shall be due and payable by the Customer in cleared funds, upon placing an order, unless otherwise agreed in writing.
18.4 The Customer shall be solely responsible for obtaining all import authorisations and the export or re-export of the Goods is subject to compliance with the export control law and regulations. The Customer shall not knowingly directly or indirectly export or re-export the Goods to any country proscribed from time to time pursuant to such laws and regulations.
18.5 Payment shall be by way of confirmed irrevocable letter of credit to be opened at a bank nominated by the Company at the Customer's expense, unless the Company agrees in writing to a different method of payment.
We confirm that we are in agreement with the above terms and conditions.
SIGNED by )
for and on behalf of )
[ ] )