General terms and conditions of sale
14 March 2014
ARTICLE 1: APPLICATION AND ENFORCEABILITY OF THE GENERAL TERMS AND CONDITIONS OF SALE
The purpose of these general terms and conditions is to govern the rights and obligations of IREPA in connection with the sale of services, including studies, tests and technical assistance. In the absence of a contract concluded between IREPA and its client, or of general or specific terms and conditions of purchase expressly accepted by IREPA, sales are subject to the general terms and conditions of sale set out below. Consequently, any service provided by IREPA implies the client’s unreserved acceptance of these general terms and conditions of sale, to the exclusion of any catalogue, brochure or other advertising document, which is for information purposes only. These general terms and conditions of sale are systematically sent or handed to each Client with each Offer issued by IREPA. Any contrary condition imposed by the Client shall therefore, unless expressly accepted in writing by IREPA, be unenforceable against IREPA, regardless of when it may have been brought to its attention.
ARTICLE 2: DEFINITIONS
For the purposes of these general terms and conditions of sale, the term:
- ‘Client’ means a person to whom an Offer is made or to whom Services are provided.
- ‘IREPA’ means IREPA LASER.
- ‘Offer’ means an offer to provide Services made by IREPA.
- ‘Order’ means a contract for the provision of Services.
- ‘Services’ means the services provided by IREPA to the Client (Studies, Tests, Technical Assistance)
- ‘Study Report’ means the report delivered to the Client by IREPA in connection with a Service.
- ‘Study Results’ means the results arising from the study carried out by IREPA that are capable of protection by Intellectual Property Rights.
ARTICLE 3: ORDER
Any client wishing IREPA to perform a Service must send IREPA:
- A sample of the product(s) the Client wishes to have processed.
- A specification.
On receipt of these documents, IREPA will issue an Offer which, unless otherwise stated, will remain valid for (30) days from its date of issue. However, on receipt of the sample, IREPA may, before issuing any Offer, request that a preliminary study be carried out at the current rates in order to confirm the Client’s specification and/or amend it if necessary. The terms of the Offer will be deemed accepted by the Client upon receipt by IREPA of a purchase order consistent with the Offer. The contract of sale is only deemed validly formed once IREPA has obtained sufficient guarantees regarding any payment IREPA may request. The benefit of the Order is personal to the client and may not be assigned without IREPA’s consent.
ARTICLE 4: AMENDMENT OF THE ORDER
Any amendment to the Order requested by the Client must be accepted in advance and in writing by IREPA. It is understood that any request to amend the Order will be accepted by IREPA if the Client accepts, where applicable, the additional cost and new delivery times proposed by IREPA that are required to implement the amendments.
ARTICLE 5: PERFORMANCE/LEAD TIMES/ACCEPTANCE – FORCE MAJEURE
5.1. PERFORMANCE AND DELIVERY
The services are performed on IREPA’s premises unless otherwise stated in the Offer. IREPA undertakes to deliver the Study Report within a reasonable time, generally agreed by mutual consent with the client.
5.2 LEAD TIMES AND ACCEPTANCE
Lead times are also dependent on the supply of materials and consumables. No reasonable delay in performing the service shall entitle the client to refuse acceptance, cancel its order or claim damages. IREPA will send the Study Report to the Client by ordinary post or by any other means. Acceptance of the completed study service takes place, as indicated in the quotation, either by sending a detailed report within four weeks of completion of the work or by a simple statement of the parameters. If provided for in the quotation, the parties will carry out a conformity check, which will result in the parties signing an acceptance report. In any event, the Study Report can only be produced and delivered if the client is up to date with its obligations towards IREPA, whatever the cause, and in particular provided that payment guarantees are maintained at a satisfactory level, at least comparable to that on which delivery was based. Should the costs of performing complex services significantly exceed the amount of the offer, IREPA reserves the right to adjust the amount of the offer in light of the additional costs incurred. It is understood that any delivery of a study report not disputed by the Client by registered letter with acknowledgement of receipt within five days of dispatch of the Study Report shall be deemed accepted and may not be the subject of any claim by the Client.
5.3 FORCE MAJEURE
IREPA shall not be liable for any failure or delay in performing any of its obligations if this results from an event beyond its will and control. Force majeure means any external, unforeseeable and irresistible event within the meaning of Article 1148 of the French Civil Code, such as war, riot, fire, strikes, accidents or the impossibility of obtaining supplies. IREPA will keep the Client informed in due course of the cases and events listed above.
ARTICLE 6: STORAGE
All supplies, documentation and samples used in connection with the Service are archived and kept by IREPA for a period of one year from delivery of the report. On written request and at the client’s expense, they may be returned during this period. After this period, IREPA may destroy them, with the exception of samples of interest for its activities promoting laser technology, which shall remain the property of IREPA.
ARTICLE 7: PRICES AND PAYMENT TERMS
Prices are expressed in € and are net, including carriage for the Study Report, as specified in the Offers issued by IREPA. Any tax or duty (in particular VAT applicable at the time the order is placed), travel expenses, fees or other charges payable under regulations are payable by the Client, unless otherwise stated.
Only the payment terms stated in IREPA’s quotations or in the client’s order acknowledgements returned by IREPA are valid, irrespective of those appearing on the client’s purchase orders. Acceptance of payment terms other than those provided for shall not constitute a derogation from the other clauses of these terms and conditions, in particular the jurisdiction clause. Failing this, the payment terms are 30% excluding VAT on order and the balance excluding VAT plus VAT at 30 days end of month, or full prepayment including VAT for the supply of ancillary products in the case of a first transaction. In the case of deferred or term payment, payment within the meaning of this article is not the mere delivery of a bill of exchange or cheque creating an obligation to pay, but its settlement on the agreed due date.
ARTICLE 8: PAYMENT – LATE PAYMENT OR DEFAULT
8.1. PENALTY CLAUSE
In the event of late payment, IREPA may suspend all current Orders, without prejudice to any other course of action. Any sum not paid by the due date shall automatically give rise, without prior formal notice and by way of derogation from Article 1153 of the French Civil Code, to the payment of late-payment interest based on the European Central Bank interest rate (REFI rate) plus 10 points, in force on the date of invoicing. Interest is calculated on the full amount, including VAT, remaining due. It runs from the due date of the price of the service performed until full payment. In the event of default by a third-party payer initially provided for in the order sent by the client, the client shall automatically take the place of the third party for payment of the sums remaining due.
Art. D. 441-5. – The amount of the fixed compensation for recovery costs provided for in the twelfth paragraph of section I of Article L. 441-6 is set at 40 euros.
8.2. TERMINATION CLAUSE
In the event of non-payment, forty-eight hours after formal notice has remained unheeded, the sale shall be automatically terminated if IREPA so wishes, and IREPA may apply for summary proceedings to obtain the return of the Study Report(s), without prejudice to any other damages. Termination shall apply not only to the Order in question but also to all previous unpaid Orders, whether completed or in progress and whether or not payment has fallen due. In the case of payment by bill of exchange, failure to return the bill shall be deemed a refusal of acceptance equivalent to non-payment. Likewise, where payment is made in instalments, non-payment of a single instalment shall render the entire debt immediately payable, without formal notice. In all the above cases, sums due for other deliveries or for any other reason shall become immediately payable if IREPA does not opt to terminate the corresponding Orders. The Client shall reimburse all costs incurred in the legal recovery of the sums due, including the fees of court officers. Under no circumstances may payments be suspended or subject to any set-off without the prior written consent of IREPA. Any partial payment shall be allocated first to the non-preferential part of the debt and then to the sums that have been due the longest.
ARTICLE 9: PAYMENT/GUARANTEES – SETTLEMENT
Any deterioration in the Client’s creditworthiness may justify either a demand for guarantees or for payment in cash or by sight draft before execution of the Orders received, or cancellation of the Order by IREPA, without the Client being entitled to any compensation.
ARTICLE 10: RETENTION OF TITLE
Services or ancillary products sold as defined in the purchase order remain the property of IREPA until full payment of the price by the client. The delivery of bills of exchange or other instruments creating an obligation to pay does not constitute payment within the meaning of this provision. If the services provided by IREPA are resold before the client has paid the full price, the client undertakes to inform any purchaser of this retention of title clause encumbering said services and of IREPA’s right to claim from the purchaser either the services concerned or their price. For the duration of the retention of title, as custodian, the risks having been transferred at the time of delivery, the Client must insure the Study Reports against all risks of damage or liability. The insurance contracts must state IREPA’s capacity as owner. In the event of receivership or compulsory liquidation of the client, ownership of the services delivered and remaining unpaid may be claimed by IREPA
ARTICLE 11: CONFIDENTIALITY AND INTELLECTUAL PROPERTY
IREPA guarantees the confidentiality of the information sent to it and of the specific results of the Services. The client undertakes not to disclose the confidential information sent to it by IREPA. The client may not claim any right to or use of, outside the contract, the confidential information that IREPA may entrust to it. The results that are the subject of IREPA’s service belong to the Client once full payment has been made.
Each Party retains full ownership of the knowledge, methods and know-how acquired and/or held prior to the conclusion of the order and/or independently of it (‘Background Knowledge’). Any improvement made to the laser equipment, related systems and software used to perform the service constitutes IREPA ‘Background Knowledge’ and does not form part of the study results. IREPA’s ‘Background Knowledge’ may only be disclosed by the Client to third parties with IREPA’s prior consent. The study results include the parameter settings of said laser equipment, related systems and software for performing the subject of the service. Making equipment or documents available in no way affects the ownership thereof by the Party providing them. Unless expressly stipulated otherwise in the order, neither Party may claim any licence, right of use or copyright in the other party’s Background Knowledge.
Unless expressly stipulated otherwise, the Client agrees that this order may be cited as a commercial reference.
ARTICLE 12: WARRANTIES
IREPA undertakes to carry out the task specified in Article 5 in accordance with good practice and to the best of its ability. IREPA is bound by an obligation of means to achieve, as far as possible, the result defined in the order. IREPA warrants to the Client that it has deployed all the means necessary to perform the Service and produce the Study Report, on the basis of the information provided to it by the Client. Under no circumstances shall IREPA be held liable for any loss suffered by the Client as a result of the Client’s use and/or exploitation of the Study Report. The Client undertakes to indemnify and defend IREPA against any claim for damages and/or legal action that may be brought against IREPA by a third party as a result of the Client’s use and/or exploitation of the Study Report.
ARTICLE 13: JURISDICTION – DISPUTES
Any dispute relating to the interpretation, performance or termination of the contract is governed by French law. Failing an amicable settlement, the sole jurisdiction recognised and accepted by the parties is the Commercial Court (Tribunal de Commerce) of the place of our registered office, which alone shall have jurisdiction. This clause applies even in the case of summary proceedings, incidental claims or multiple defendants, and regardless of the method and terms of payment.
