TERMS AND CONDITIONS OF SALE
Edition July 2014
1 – GENERAL
These general terms and conditions of sale of NUCLETUDES (hereinafter referred to as the General Terms and Conditions of Sale) shall apply to any received orders and may only be amended or waived at NUCLETUDES’ initiative.
These General Terms and Conditions of Sale constitute the base of all sales negotiations (Article L441-6 of the French Commercial Code). No amendment or waiver may be made to these General Terms and Conditions of Sale without effective and substantial consideration.
Any clause contained in an order form, agreement, contract or related document, including any document entitled “General Terms and Conditions of Purchase”, that would require the waiving of these General Terms and Conditions of Sale, or that would call for specific statements to be contained in the General Terms and Conditions of Sale (Article L441-6 of the French Commercial Code), or that would lay down stricter terms and conditions for the seller than those contained in the General Terms and Conditions of Sale, shall be deemed to be null and void and not written, without any requirement to explicitly denounce said clause.
Placing an order shall entail complete acceptance of the foregoing.
2 – PURPOSE AND SCOPE – PRICES OF THE OFFERS
Price offers are valid within the limit of the optional time frame which, unless otherwise specified, shall be of two months, starting from the presentation of the offer.
The equipment and services shall be produced/performed in compliance with all explicitly referenced requirements and standards. The Customer may not in any case set off any standards, specifications, prescriptions, regulations and best practices against the NUCLETUDES if such materials have not first been referenced or accepted by NUCLETUDES.
The Customer shall remain solely liable for the use for which its product or service is intended, and hence shall also be liable for the suitability of the product or service for such use. Any clause requiring complete compliance with the use of the equipment or service intended by the Customer shall be deemed to be not written, without any requirement to explicitly denounce said clause.
Any consultancy, engineering and test services shall be performed under an obligation of due care, in accordance with state-of-the-art rules and with a technical approach as agreed upon with the Customer, and within the limits of sciences and techniques. The Customer shall be solely liable for its use of the results supplied by NUCLETUDES.
Estimates are drawn up based on updated hourly rates and coefficients.
The prices quoted in the estimates are drawn up without including any impact of penalties for late delivery/performance. NUCLETUDES undertakes to use its best endeavours to honour the delivery periods specified on the acknowledgements of receipt. No penalty clause for late delivery/performance shall be accepted, unless it was mentioned in the preliminary pricing instructions and was known to NUCLETUDES before the price was finalised. Any penalty clause that was not known to NUCLETUDES before the price was formed shall be deemed to be null and void and not written, without any requirement to explicitly denounce said clause.
3 – ORDERS
All special clauses or conditions of purchase set forth on the Customer’s order form, which contradict these Terms and Conditions of Sale, shall be deemed to be null and not written. No addition, omission or amendment to any of the provisions of these Terms and Conditions of Sale shall be binding on NUCLETUDES.
Any change notified on the acknowledgement of receipt of the order shall be deemed to be accepted by the Customer unless the Customer notifies its objection to the change a maximum period of eight days, starting from the acknowledgement of receipt. In this case, the order shall be suspended.
Any order placed by electronic mail or fax must be confirmed in writing within eight days and shall only be binding on NUCLETUDES after written confirmation by our company (acknowledgement of receipt of the order). As soon as orders have been accepted by NUCLETUDES, they may not be rescinded or cancelled by the Customer, unless otherwise expressly specified in the agreement or contract.
The order shall be considered as formed upon execution of the order form, agreement or contract by the Customer and issuance of the acknowledgment of receipt by NUCLETUDES.
Any failure to sign any additional documents, such as the acknowledgments of receipt in the Customer’s format, or to remotely act on computer sites for the purpose of accepting the order shall not prevent the order from being formed. These documents may not be set off against, or add any requirements to NUCLETUDES’ acknowledgment of receipt.
Any provision to the contrary shall be deemed to be not written without any requirement to explicitly denounce said provision.
Only the acknowledgment of receipt established with NUCLETUDES’ letterhead and in NUCLETUDES’ format shall prevail.
NUCLETUDES reserves the right to make partial deliveries, and to issue the associated invoices. Any partial delivery shall be considered as a separate contract and the fact that the Customer has to wait for the rest of the equipment ordered shall not relieve the Customer of its obligation to make the respective payment.
4 – PRICES
Unless otherwise provided in the order, the prices are stated in euros before tax. The VAT is invoiced at the legal rate in force on the invoice date. The currency for payment is the Euro. In the event of use of another currency on an exceptional basis, a price adjustment shall be carried out to maintain the price in euros effectively received by NUCLETUDES.
5 – DELIVERY PERIODS
NUCLETUDES shall be released ipso jure from any undertaking relating to delivery periods and expressly reserves the right to suspend deliveries in the following cases:
- non-payment or failure to comply with the payment terms and conditions by the Customer;
- late provision of any items to be provided by the Customer;
- refusal to give authorisation to export or withdrawal of an authorisation already granted by a government;
- in the event of force majeure or events such as industrial disputes, epidemic, war, requisition, fire, flood, accidents using tools, large-scale refusal of the components in the process of being manufactured, interruption or lateness in carriage or any cause leading to total or partial unemployment at NUCLETUDES’ or its suppliers’.
6 – CARRIAGE AND DELIVERIES
All deliveries shall take place at the location mentioned in the order form.
All deliverables shall be sent to the customer according to the “Delivered At Place” (DAP) conditions (see Incoterm 2010) at the Customer’s premises, at the location mentioned in the order form.
No plea shall then be filed against NUCLETUDES for losses, missing items or damages sustained by the goods if a report having irrefutable evidential value has not been sent to the carrier or the forwarding agent within a maximum time frame of two days and notified formally to NUCLETUDES within the same time frame.
7 – PACKAGING
The deliveries shall be carried out in disposable packaging.
8 – PAYMENT TERMS AND CONDITIONS
The payment plan of the orders may include advances, down payments and outstanding payments.
If an advance (initial payment) is required, this shall be paid immediately, and the lead-times shall start running upon reception of such initial advance.
The other down payments and outstanding payments shall be paid within a net period of 30 days, starting from the date of the invoice, except if specific conditions have been negotiated and included in the acknowledgement of receipt.
This time period shall run until the effective date of collection of the funds on the designated accounts. The Customer shall be liable for proper management of such period, and in particular shall take into account the time required for transmission by post or e-mail and for the bank transactions.
In the event of late payment, penalties shall become payable ipso jure. These penalties shall be calculated at the rate of 5/10000 of the amount of the late payment, per calendar day of delay, unless such rate appears to be lower than 3 times the legal interest rate in force in France, in which case the penalties shall be calculated on the basis of three times the legal interest rate in force in France.
According to articles 441.6 and D441.5 of the French Commercial Code, any delay in payments shall lead, apart from the penalties fees for a late payment, to an obligation for the debtor to pay a fixed 40.00 euros compensation for recovery costs.
9 – WARRANTY
Unless otherwise provided, the warranty applies for two years for parts and labours as from the delivery date, date of departure from the factory, and only applies to the delivered equipment. The warranty period shall start running upon in-factory acceptance of the equipment or upon delivery, as set out in the contract.
Repairs performed outside the scope of the warranty shall be guaranteed for a period of 6 months, for the equipment aged less than 10 years.
Repairs performed under the warranty shall extend the warranty period by the total duration of the period for which the equipment concerned has remained unavailable.
Repairs shall be carried out on NUCLETUDES’ premises. NUCLETUDES shall be solely responsible for choosing the repair method.
The warranty does not cover the costs of removing and reinstalling the equipment on the Customer’s installations, for which the Customer shall bear all costs and liability.
The equipment returned to NUCLETUDES shall be carried outward and inward at the Customer’s expense and under the Customer’s liability.
The warranty does not apply to any defect coming from materials supplied by the purchaser, or from a design imposed by the purchaser, and shall not cover the consequences of normal wear and tear of the appliances, or damage or accidents resulting from negligence, or improper monitoring, maintenance or storage, use or handling not compliant with NUCLETUDES’ specifications or usual precautions for handling and implementation.
The warranty shall not cover the components or parts of equipment supplied by the Customer.
The warranty shall not apply when any repair or service by a person not belonging to NUCLETUDES’ after-sales service has been reported.
Under no circumstances may NUCLETUDES be held liable for the direct or indirect consequences of a defect in equipment sold by NUCLETUDES. No compensation may be claimed on this basis in any respect whatsoever, including for loss of enjoyment of property.
10 – LIABILITY
Sales are subject to exclusion of NUCLETUDES’ liability with regard to any consecutive damage, including without limitation any loss of business, loss of profits, delays, penalties, loss of enjoyment of property, etc., irrespective of whether such damage is consequential to property damage or otherwise.
11 – TRANSFER AND RESERVATION OF TITLE
The transfer of title to the goods shall be suspended up until full payment of the selling price and any related costs.
In the absence of payment, in full or in part, the seller shall be entitled to take back the equipment, without any prior formality being required and regardless of any legal proceedings. The above provisions shall not prevent, with effect from the delivery, the transfer of the risks of loss or deterioration of the products and damage which such products may incur while in the custody of the receiver.
The Customer is expressly prohibited from giving the products as a warranty or disposing of them, in particular to resell them or incorporate them irreversibly into any next higher assemblies, or transform them before full payment of the price. In the event of an attachment of the products by a third party, the Customer shall notify the seller immediately.
The resellers shall remain liable irrespective of any difficulties they may encounter in collecting their debt.
In the event where the Customer goes into court-ordered recovery proceedings or court-ordered liquidation or any other bankruptcy or insolvency proceedings whatsoever, action may be brought to establish ownership of the products in accordance with the provisions of the French act of 25 January 1985, within three months following the notification of the judgement.
In the event where an item is taken back pursuant to the reservation of title clause, the seller shall keep the downpayments as damages, as compensation for the loss caused due to the rescission of the sale and wear and tear of the products used by the Customer.
12 – INDUSTRIAL PROPERTY
When the Customer has fully funded an engineering or test activity, he acquires the full property of all the outputs strictly produced through this activity.
Unless otherwise agreed upon, the customer shall not acquire any property right on elements that would come from the own know-how of NUCLETUDES as, for instance the design of internally developed hardware or the methods used to perform the activity and to produce the deliverables.
The studies, plans and documents provided to the buyer shall remain the property of NUCLETUDES and are confidential. The buyer may not use them outside of the scope of the contract or disclose them, whether knowingly or otherwise, to third parties and undertakes to take all necessary measures in this respect.
In the event where the sale is not made, the studies and documents provided to support the offer must be returned to NUCLETUDES, at its request, within a maximum of 15 days following the expiry date of the offer.
13 – TECHNICAL ACCEPTANCE
The technical clauses lay down the terms and conditions for acceptance of the services and equipment. Such acceptance shall be carried out only based on the requirements expressly specified in the orders. The preliminary acceptance operations shall be performed by NUCLETUDES and possibly with the Customer’s participation. In this case, the Customer shall bear the expenses of its participation.
14 – GOVERNING LAW – CHOICE OF JURISIDICTION
French law governs all orders or contracts.
In the absence of an out-of-court settlement, the settlement of the dispute shall be referred to the Evry Court, France, even in the event of a claim by more than one defendant or a claim for contribution from a third party. The commercial papers shall not waive or novate this choice of jurisdiction clause.
TERMS AND CONDITIONS OF PURCHASE
Edition sept 2014
1 – GENERAL POINTS
These General Terms and Conditions of Purchase (designated GTCP hereafter) complement the special terms and conditions of purchase mentioned in the orders and the general terms and conditions of sales of the suppliers that prevail over these GTCP. The GTCP shall be applied to any clause that is not covered by any special terms and conditions of purchase mentioned in the order, or by the general terms and conditions of sales of the supplier. Suppliers don’t have to give up to their general terms and conditions of sales when they exist.
2 – ACCEPTANCE AND ENTRY INOT FORCE OF THE ORDER FORM
The acknowledgement of receipt (or the order form amendment) shall be sent back to NUCLETUDES fully accepted by the supplier and duly stamped with the supplier’s business seal within a maximum time frame of 14 days after its reception, otherwise it will be considered as not accepted by the supplier.
Once the acknowledgement of receipt has been received by NUCLETUDES, the order form will enter into force retroactively at the date of issue of the order form (mentioned on the front of the order form). The supplier will be committed to the execution of the order form by all types of acknowledgement of receipt it has issued.
Any order form modification will induce a dedicated amendment.
3 – DELIVERY
Any delivery shall be made at the location mentioned in special terms and conditions of purchase of the order (Incoterms DAP 2010). For each delivery, a delivery note drawn up in duplicate shall be provided and shall include :
- References and the date of the order form,
- Number of the relevant headings,
- Designation of the deliveries as mentioned in the order form headings,
- Quantity, length or weight delivered,
- Detail of the returnable or charged packaging if the packaging has been explicitly described as returnable or to be charged for in the order form.
Another copy of the delivery note shall put outside of each parcel.
The delivery shall be made in accordance with the norms, rules and regulations applicable in France by the day of the delivery. The delivered item shall be accompanied with all the necessary documentation required to address its utilization, its storage and its maintenance. In case of any, the delivered item will not be accepted
4 – RECEIPT, RISKS AND PROPERTY TRANSFER
Risks are transferred according to the Incoterm DAP 2010.
The property transfer takes effect with NUCLETUDES’ qualitative and quantitative acceptance.
5 – DELAYS
Delays mentioned in the order form are binding deadlines. The supplier shall inform NUCLETUDES of any causes of delay as soon as they are known so that NUCLETUDES be able to take all the necessary steps before the contractual delivery date. NUCLETUDES reserves the right to terminate any part or total order that would not be delivered by the contractual dates, once that a registered summons letter has been sent without any effect 15 days after having received the acknowledgement of receipt. In such a case, NUCLETUDES may claim damages from the supplier.
6 – PENALTIES
Except in cases of force majeure, any delivery delay may lead to the application of penalties defined according to the following formula :
P = where P is the amount of penalties, V is the value of the supply that was delivered late, R is the delay expressed in calendar days.
7 – CONTROL – QUALITY INSURANCE
The supplier commits himself to inform NUCLETUDES about all his certifications, recognitions or accreditations.
The supplier is in charge and responsible of verifying and certifying the compliance of the delivered supply with the conditions mentioned in the order form.
He shall grant access to his premises to NUCLETUDES and his customer so as to allow them to verify the compliance of the deliveries with the quality insurance requirements mentioned in the order form. Although a supervisory control would potentially be implemented by official services and controls are performed by NUCLETUDES, the responsibility of the supplier remains unchanged.
8 – ENVIRONMENT
The supplier commits himself to follow the applicable rules and regulations and especially the national laws declining the following European directives : ROHS (Restriction of Hazardous Substance) ( 2002/95/EC directive), REACH (1907/2006 directive) and CLP (1272/2008 directive), Therefore, the supplier must provide NUCLETUDES with products that are free from any substance that is forbidden according to the applicable rules and regulations. The supplier also commits himself to provide NUCLETUDES with all updated information certifying that he complies with all the legal obligations in terms of environment. NUCLETUDES shall be notified in writing if any modification is implemented or if the production is about to be halted, within a delay allowing NUCLETUDES to order a last product lot.
For hazardous materials, the supplier shall manage the transportation, directly or through a subcontractor, according to the applicable ADR European agreement.
9 – ETHICS CLAUSE
Through the acceptance of NUCLETUDES’ order form, the supplier commits himself to ensure that the work will be performed with a staff employed according to the laws and regulations that are applicable in the country where the activity is located.
10 – SUPPLY REFUSAL
Any supply that is qualitatively or quantitatively not accepted shall be retrieved by the supplier within 14 days after the non-acceptance. Beyond these 14 days delay, the delivery shall be returned through a collect shipment by NUCLETUDES to the supplier’s address at the supplier’s own risks.
All refused supplies are considered as not delivered.
11 – WARRANTY
The supplier shall guarantee that the supply is free from any material and/or manufacturing flaw, and from any faulty conception.
Without prejudice to provisions of article 1641 et seq. of the French Civil Code, the supplier guarantees for one (1) year, starting at the qualitative and quantitative acceptance, the repairs, labour and spare parts, or the faulty supply replacement.
In case of flaws or faulty conception affecting the supply, the supplier shall repair or replace it for free within a one (1) month maximum delay after the date the supply has been retrieved by the supplier .Beyond this one month period, penalties will be applicable according to the formula given in the article 6 above.
12 – CANCELLATION
12-1 In case the supplier has not fulfilled a part or all of his contractual obligations, NUCLETUDES shall be able, once that a registered summons letter has been sent without any effect thirty days after having received the acknowledgement of receipt, to notify in writing the cancellation of all or part of the order form to the supplier at his own, this situation resulting from the sole fault of the supplier. Compensation may be claimed by NUCLETUDES for all damages suffered as a result of such a situation.
12-2 The supplier allows NUCLETUDES the right to cancel partially or totally the execution of an order form without any fault due to the supplier. In such a case, A cancellation compensation shall be negotiated to account for the supplier’s expenses by the date of the cancellation. This compensation shall be limited to the expenses directly engaged by the supplier before the order cancellation. No other compensation of any kind shall be claimed by the supplier.
12-3 If, in case of a force majeure, the supplier is not able to fulfill his contractual obligations, NUCLETUDES shall be able to cancel the order.
13 – PRICE
Unless different clauses are expressed in the special terms and conditions of purchase, prices are considered firm lump-sum..
14 – INVOICING
Invoices related to each delivery shall be returned to the address mentioned on the front of the order. Invoices shall correspond to only one order form and mention its registration number, the order lot reference, the designation, the numbers and dates of the others orders forms put in reference, the VTA numbers of NUCLETUDES and the supplier. In case part of this information is missing, the invoice may be refused.
Invoices shall be received within the 3 working days following invoices date. Any invoice received beyond this delay shall be considered as antedated and shall then be refused.
15 – INVOICES PAYMENT
Invoices are paid within 45 days from the end of the month of invoicing unless other conditions have been agreed through the special terms and conditions of purchase or in the general terms and conditions of sales of the supplier
In case of anticipated payment, NUCLETUDES shall be able to apply a discount, computed on the basis of the number of days between the effective payment and the 45 days from the end of the month of invoicing deadline, considering a rate based on the three-month EURIBOR rate increased by three points.
16 – LENT OR ENTRUSTED GOODS AND TOOLS
The tools manufactured by the supplier on behalf of NUCLETUDES and at NUCLETUDES’ expenses, totally or partly, as well as the goods and tools provided to the supplier by NUCLETUDES shall be exclusively used for the purpose of NUCLETUDES’ order .Supplier shall be in charge of the storage and maintenance of these goods and tools at his own risks and expenses. To cover these risks, an insurance policy shall be contracted by the supplier. The proof of the existence of this insurance policy shall be made available by the supplier on request. These goods and tools belong to NUCLETUDES. Therefore, the supplier shall ensure that NUCLETUDES’ property information appears on them. The supplier shall ship these tools and goods to NUCLETUDES in good state within eight days after NUCLETUDES’ request.
17 – SECURITY –SAFETY –CONFIDENTIALITY
When the supply is associated to a service, the supplier and his subcontractors that will intervene at NUCLETUDES’ premises are deemed to be aware of the laws and regulations applicable for health and safety and of NUCLETUDES’ internal rules and regulations. The people that will intervene at NUCLETUDES’ premises may be submitted to a preliminary security inquiry if deemed necessary by NUCLETUDES.
The supplier shall follow any instruction given by NUCLETUDES regarding safety, security and protection of secrecy.
The supplier shall guarantee the professional secrecy by taking all necessary steps to ensure that no specification, formula, drawing or manufacturing information belonging to NUCLETUDES is communicated or unveiled to a third party by his staff or his subcontractors’ staff.
18 – INTELLECTUAL PROPERTY
The supplier guarantees NUCLETUDES against all claims of third parties regarding industrial, literary or artistic property for the delivered elements. The supplier shall take in charge all financial consequences and convictions that NUCLETUDES may face.
When a study is ordered, NUCLETUDES acquires the full property of the results of the order form, these results consisting potentially of plans, technical documents, drawings, models, prototypes, tools,…and the complete set of know-how that was necessary to produce them. In case these results would require an industrial protection, only NUCLETUDES shall be able to file an application for an industrial property certificate, at its own expenses.
19 – PUBLICITY
The existence and the content of an order form shall not be divulgated in any way, either directly or indirectly, unless NUCLETUDES has given its prior written agreement.
In particular , the supplier shall expose the products manufactured according to NUCLETUDES’ drawings, models or technical requirements only if NUCLETUDES has given its prior written agreement.
20 – END USER
Considering the applicable end-user control regulations, the supplier shall provide NUCLETUDES with the categorization of the delivered supply. This information shall be mentioned in the acknowledgement of receipt, in the invoice and the delivery documents, together with the identification of the concerned supply and associated item number.
The end-user control requirement is issued from the applicable European laws for the European supplies and for the non-European laws (especially the US laws) for the imported supplies or supplies that may include imported parts.
In case NUCLETUDES would not be allowed to have a full ability to export the supply, NUCLETUDES would be authorized to cancel the order form as specified in article 10. Moreover, if such an issue is raised after the delivery without prior information from the supplier, or if the supplier has been negligent with his duties, NUCLETUDES may claim damages from the supplier.
The supplier shall manage his activities and contracts in a diligent and complete way. Even after the delivery he remains in charge of addressing the exportation issues with the competent authorities of the supplies’ country of origin, transferring and obtaining the requests to reallocate or forward the totality or part of the supplies.
21 – APPLICABLE LAW – ASSIGNMENT OF JURISDICTION
French law governs all orders or contracts.
All parties agree to do their best to reach an amicable settlement in case of dispute on the existence, validity, implementation and/or interpretation of the order. Unless an amicable settlement is found, the dispute shall be settled only by the court of Evry (Tribunaux d’Evry) FRANCE, even in cases involving several defendants or consisting of an action on a warranty. Commercial papers issues cannot lead either to novation or to derogation regarding this assignment of jurisdiction.
In the event of a dispute, the French version of these GTCP shall prevail.
22 – MODIFICATIONS IN THE LEGAL SITUATION OF THE SUPPLIER
The supplier shall inform NUCLETUDES within eight days following any modification regarding its shareholding structure such as a change in the majority, a merger, an acquisition as well as in case of any judgment that may affect him such as being put in receivership or judicial liquidation.