December 2016
ALWF AUTOMATIC AND/OR AIR TREATMENT EQUIPMENT’S GENERAL TERMS AND CONDITIONS OF SALE
Air Liquide Welding France, aFrench limited company (Société Anonyme or S.A.) with share capital of € 20916 422,10
Registered Office: 75, Quai d'Orsay, 75321 Paris Cedex 07
Number B 552033821 on the Trade and Companies Register of Paris – Company identification (SIRET) number 552033821 00018
December 2016
These General Terms and Conditions of Sale (hereinafter referred to as the "General Terms and Conditions") cancel and supersede the previous general terms and conditions of sale and may, in turn, also be updated.
Article 1 - Definition - Enforceability.
The purpose of these General Terms and Conditions is to set forth the terms and conditions and enforcement procedures relating to any sale of equipment (inter alia, automated material welding and cutting machines, spare parts and consumables) manufactured and/or marketed by ALWF (hereinafter referred to as the "Equipment") entered into on behalf of its customers (hereinafter referred to as the "Customer"). Any order for Equipment placed by the Customer shall mean that it fully and unreservedly agrees to comply with these General Terms and Conditions which, accordingly, shall take precedence over any other terms and conditions that may appear in any correspondence or document, particularly those provided by the Customer, unless ALWF’s expressly agrees otherwise in writing. All insertions, crossed-out words, changes to or deletions of the contents of these General Terms and Conditions shall be void.
Article 2 - Proposal - Order – Amendment to the order and cancellation thereof.
Any proposal, offer or estimate issued by ALWF shall be drawn up on the basis of the information provided by the Customer and, unless otherwise stipulated, it shall only be valid for one (1) month from the date on which the Customer receives it.
The Customer shall express its acceptance of ALWF’s proposal, offer or estimate by returning said document duly signed by the Customer, it being specified, however, that any order for Equipment resulting therefrom shall only become final and shall only be enforceable against ALWF subject to written confirmation signed by ALWF, in the form of an acknowledgement of receipt of order (hereinafter referred to as the "ARO"). ALWF shall have discretion to fulfil or reject the order, in accordance with its supply and delivery capacity and constraints and any circumstance that is likely to interfere with the successful fulfilment of the order. All the statements that appear in the aforementioned ARO shall be deemed to constitute the Parties’ agreement if the Customer has not been disputed them by registered letter within five (5) days of receiving it.
Any request from the Customer that is likely to involve an amendment to its order shall be submitted to ALWF in writing for approval. ALWF shall be entitled to object to it and such objection shall not be deemed to be a partial or total failure to perform its obligations nor shall the Customer be able to rely on said objection in order to cancel its order. Any amendment to the order that ALWF accepts may result in a change to the agreed price and it shall exonerate ALWF from complying with the delivery deadline that was agreed at the outset.
No cancellation of the order by the Customer shall be accepted without ALWF’s express, written consent, particularly when the order has already reached the manufacturing stage or is in the process of being supplied, regardless of the confirmed delivery date. An order in the process of being manufactured or supplied shall mean not only the part of the order that is in the process of being executed but also the supplies of raw ingredients. In any event and if ALWF has agreed to an order being cancelled, the costs already incurred at the time of cancellation shall be invoiced to the Customer for a minimum fixed sum of ten per cent (10%) of the value of the order, including all taxes. Moreover, any instalment paid shall be retained by ALWF.
Article 3 – Price – Payment terms – Penalties.
(i)The price of the Equipment sold shall be systematically provided to the Customer and, generally speaking, it shall be agreed in the order. In the absence of special terms and conditions to the contrary, the price of the Equipment sold shall be:
- stated in Euros net of VAT and from ALWF’s factory (sales in France) or "Ex Works" according to the 2010 edition of Incoterms (international sales) and they shall be understood as being net of shipping, insurance, fitting and start-up costs;
- reviewable to take into account variations deemed to be beyond ALWF’s control, including fluctuations in the price of raw materials (particularly steel) and the cost of energy, that occur between the date on which the price is set and the delivery date.
In the event that the Parties agree that the price of the Equipment being sold shall be understood to include shipping/and/or insurance and/or fitting and/or start-up costs, ALWF may adjust the price at any time to take into account the variations deemed to lie beyond its control in relation to the shipping and/or customs and/or insurance costs, as these shall have occurred between the date on which the price is set and the delivery date.
(ii)In the absence of a special agreement, the payment terms shall be as follows:
-An initial payment of 50% shall be made at the time of the order;
-40% shall be payable on the date of the provisional (acceptance) report in ALWF’s factories or no later than the delivery date;
-10% shall be payable on the date of the final (acceptance) report or no later than one (1) month after Equipment delivery;
Said payments shall be made at ALWF’s registered office and, unless agreed otherwise, they shall be net and without discount. The abovementioned payment terms shall not be deferred for any reason whatsoever, it specified in that respect that the date on which the abovementioned Equipment is accepted shall be the date of the event that triggers invoicing. For French customers, pursuant to article L 441-6 of commercial code, the delay agreed by the parties to pay any invoice shall not exceed 45 days from the date of issuance of such invoice. For export customers, unless otherwise stipulated, invoices for catalogue items shall be payable in cash on delivery.
(iii)Except as otherwise provided,the mean of the payment should be bank transfer, under the terms and conditions stipulated in the order. All payment should be received from the customer legal entity which passed the order to ALWF.
(iv)If the Customer pays the monies owed to ALWF after the due date, it will:
-authorise ALWF to suspend fulfilment of the order for the Equipment without notice, regardless of the stage that it has reached and ALWF shall not be deemed to have breached its obligations and/or, to retain the Equipment, thus objecting to any delivery until the Customer has paid all the monies it owes pursuant hereto, in full;
-automatically result in the balance of the price of the Equipment being sold and the invoices on account becoming payable immediately and the Customer shall be obliged to pay late-payment interest calculated on the basis of all the outstanding amounts including all taxes, at an interest rate of 3 times the French legal interest rate that is current on the date of payment. Any month that has commenced shall be payable in full and ALWF shall not have to complete any formality or issue any formal demand for payment beforehand and furthermore, after a formal demand for payment has been served and remains unheeded after eight (8) days, compensation equal to 10% of the outstanding amounts including taxes shall be payable by way of a penalty clause in addition to the principal debt, penalties for late payment and any orders and ancillary relief issued by the courts.
- Besides, a fixed compensation of 40 € will be borne by the customer for recovery costs. If these charges should be superiors, ALWF could charge a superior compensation for the real amount of recovery costs, on justification. Customer is not allowed to compensate without the prior consent of ALWF.
Article 4 - Deliveries – Transfer of risks.
(i)Delivery: Unless stipulated otherwise and agreed with the Customer, the Equipment ordered shall be deemed to be delivered to the Customer when it leaves ALWF’s factory or "Ex Works" (Incoterms 2010), and the Customer shall be responsible for shipping, insurance, loading, bracing and securing it. In order to allow the Customer to take delivery of the Equipment, ALWF shall notify it of the date from which the Equipment will be provided, by any means that is convenient to it, and this shall constitute the delivery date. If the Customer is not in a position to physically take possession of the Equipment on the delivery date, ALWF shall make arrangements to store it at the Customer’s expense and risks. The storage costs shall be invoiced to the Customer and they shall be twice (2 times) the Euribor 1 month legal interest rate.
(ii)Transfer of risks: Regardless of the destination or means of transportation of the Equipment or the payment terms therefore, the risks of loss or damage shall be transferred as from the delivery date, although the transfer of ownership thereof shall be deferred in accordance with Article 9 hereunder, notwithstanding any statements such as "delivered free at the nearest station, at the stated port of destination or at the customer’s premises or full or partial reimbursement of shipping cost ", such statements shall be presumed to relate to payment and not to ALWF’s risks or liability. Accordingly, the Equipment shall be transported at the Customer’s risks and perils, and, in the event of delay, damage, loss or missing items, it shall express any reservations and bring any claims against the carriers who are liable. The Customer shall take out insurance to cover the risks arising from the time of delivery, as defined above.
(iii)Delivery time – Late delivery: The delivery deadline stated on any document issued by ALWF shall be intended for guidance purposes only. It shall not be binding and may, inter alia, be extended for any reason relating to technical supply, transportation or other considerations arising from an unforeseen event or a case of force majeure for example. For the purpose of this article, shall be deemed as “force majeure” any event attributable to circumstances beyond the control of the parties, irresistible and unpredictable, and which could not allow ALWF to perform the order; such event shall then discharge ALWF of its liability and shall suspend the order. Such suspension shall not allow the Customer to claim for compensation.
No penalty for late delivery may be claimed from ALWF. Under no circumstances whatsoever shall a late delivery justify or give rise to full or partial cancellation of an order, refusal of the Equipment and/or penalties or damages of any kind, unless it can be shown that ALWF has been grossly negligent. If, in derogation of the foregoing, ALWF has agreed to penalties for late delivery, they shall not apply in the event that deadlines are exceeded owning to the Customer’s failure to perform its obligations (for example, information or documents not provided at the proper time, failure to perform the agreement, particularly where the Customer fails to comply with the payment terms for previous or pending deliveries) or if said extra time does not cause the Customer any actual loss.
The delivery time shall only run as from the date on which the Customer receives ALWF’s acceptance of the order, that is to say from the ARO or from the date on which ALWF receives the Customer’s payment of the specified instalment, whichever is later. However, and in the event that the order relates to specific Equipment that requires research to be conducted into the manufacturing schedule and approved by the Customer, the delivery deadline shall be computed as from the date on which the Customer notifies ALWF of said approval.
(iv)Carriage: As from the date on which the Equipment is delivered, the carriage, insurance, customs and handling thereof shall, be at the Customer’s responsibility, expense, risks and perils. The Customer shall be responsible for verifying delivery of the Equipment and, where appropriate, for any claims against the carrier or the forwarding agent or transit agent, even if the goods were dispatched prepaid. Any derogation therefrom shall refer to the "Incoterms". If, at the Customer’s special request, ALWF is involved in arranging or transporting the Equipment and in insuring it, it shall be in the name of and on behalf of the Customer. Under no circumstances whatsoever shall it grants ALWF the status or responsibility of forwarding agent or carrier. By derogation from Article 4 (i) providing for delivery on departure from the factory or Ex Works, whenever ALWF undertakes to arrange shipping in accordance with the Incoterm chosen, the goods shall be shipped at ALWF’s discretion.
(v)Storage after delivery to the Customer: The Customer undertakes to store the delivered Equipment in accordance with applicable practice and, in particular, to keep it sheltered from rain, wind and cold. The Customer shall be responsible for ensuring that its premises are suitable for storing the Equipment.
(vi) Commissioning at the Customer’s site: Some Equipment may require commissioning at the Customer’s site. In that respect, the Customer undertakes to make arrangements for said start-up and, in particular, the work recommended by ALWF and to provide ALWF’s technical staff with access to the site.
Article 5 - Acceptance – Claims.
(i)Acceptance: In the absence of specific terms and conditions of acceptance laid down by ALWF, the Equipment shall be deemed to have been accepted when it has been delivered to the prime carrier for loading, securing and transportation. In any event and without prejudice to the aforementioned provisions, the Customer’s use of the Equipment shall be tantamount to de facto acceptance. The Equipment provided on departure from the factory or Ex Works may be accepted mutually by the Customer and ALWF, at the Customer’s express request. The corresponding expenses and, in particular, advisors’ fees and the cost of the report shall be payable by the Customer.
(ii)Claims: When the Customer receives the Equipment, it shall certify that it has checked that said delivered Equipment complies with the order. On pain of being inadmissible and without prejudice to any claims to be made against the carrier, any claim by the Customer for failure to comply or visible defect in the Equipment shall only be taken into consideration if it is made to ALWF by registered letter within fifteen (15) days of receiving it. After that time, the Customer shall be deemed to have accepted any failures to comply and/or visible defects in the Equipment and each delivery made shall be deemed to have been accepted unreservedly and shall preclude any claim at a later date. No claim shall exonerate the Customer from paying for the Equipment.
Article 6 - Warranty- Liability.
(i)Extent of the warranty: ALWF shall guarantee any components of the Equipment that are designed and produced in its factories against any design, manufacturing and assembly defect or fault attributable to it, under the terms and conditions and within the limits laid down herein. Any other integrated component of the Equipment that is designed and produced by ALWF shall be guaranteed solely by the supplier of the component in question and ALWF merely undertakes to contact the supplier to ask it to implement its own statutory warranty.
Unless otherwise expressly stipulated, the Equipment shall be manufactured in accordance with usual trade uses and current standards, if there are any, and subject to the usual tolerances as regards quality. ALWF shall only guarantee the Equipment for the use for which it is intended and not for a separate or specific use to which the Customer may wish to put it. ALWF shall not guarantee any output, efficiency and/or productivity in connection with the Customer’s use of the Equipment. The warranty shall only apply if the Customer has complied with all the general obligations hereunder, and, in particular, the payment terms. ALWF’s statutory warranty shall only be implemented if the Customer shows that the defect appeared when the Equipment was being used under normal conditions . ALWF shall be liable for standard which are expressly mentioned in the Order, and when the Order does not mention any standard, ALWF shall comply with material requirements as stated in relevant EC regulation as incorporated into French law.
In the event that the Equipment is transferred, the benefit of the warranty shall only be transferable with ALWF’s consent.
(ii)Term of the warranty and starting point thereof: The term of the warranty for obvious failure to comply or visible defects shall run for fifteen (15) days as from the date on which the Equipment is accepted and subject to any claim issued by the Customer pursuant to Article 5 above. The equipment specified in the order shall be guaranteed for one year, including parts and labour, operating on a one to three eight-hour shift; the welding gun shall be guaranteed for three months. The starting point of the warranty runs from the date of the delivery report or from the date of the Equipment commissioning.