General Terms and Conditions of Sales – AEROFORM FRANCE
In these Conditions, reference to “The Company” means Aeroform France. All contracts, tenders, offers and quotations for the sale of goods and/or the carrying out of work by the Company incorporate the following terms and conditions to the entire exclusion of all terms, conditions, warranties and stipulations expressed or implied by statute, regulation, common law trade practice .
In case of any conflict variance or inconsistency between these Conditions and the terms of the Buyer’s enquiry or order or any correspondence relating thereto these Conditions shall prevail except to the extent that (i) these Conditions are excluded by specific reference in writing and (ii) such exclusion is agreed to by us in writing. No order or other contract may be cancelled or varied except by written agreement with the Company, and on such terms, as to increased price or otherwise, as the Company may stipulate.
- Repair Quotations
Quotations for repair work are made on the basis of a preliminary examination of the goods to be repaired. To ensure a satisfactory repair it is frequently necessary to replace parts which, on first inspection, appear to be re-usable and/or to carry out additional work to that originally quoted for. The Company therefore reserves the right to invoice repair work on the basis of ascertained costs. If, following receipt of a quotation for the repair of goods, the customer decides not to proceed, the Company reserves the rights to charge for dismantling and inspection. If, within 21 days from receipt of a quotation for the repair of goods the customer does not give any instructions, the Company will not thereafter accept any liability for loss of or damage to any of the customer’s property remaining in its hands.
Every quotation or tender is open for acceptance in written 30 days from its date or for the period stated therein and is subject to confirmation by the Company upon receipt acceptance. The Buyer’s order must be accompanied by sufficient information to enable us to proceed forthwith with the order but shall not constitute contract until accepted by us and such acceptance has been notified to the Buyer by us in writing. Times quoted for dispatch, delivery or completion shall run from the date of such notification.
- Statements, Representation or illustration
Unless expressly incorporated in the contract of sale in writing:
- No statement, representation, illustration or other particulars in regard to any of the Company’s products contained in any catalogue, price list or other published matter, or in any tender, form part of such contract.
- The Company makes no warranty or representation in respect of suitability or fitness of products for any particular application or purpose.
- Our manufactures are carefully inspected and where practicable submitted to our standard tests at our works before dispatch in accordance with our normal procedure. Special arrangements, for which we reserve the right to make a charge, must be made if witnessed physical tests on materials or running tests are required. The Buyer’s representative may attend such tests provided we receive notification of this intention with the order. If after giving 7 days notice of our readiness for tests, the attendance of the representative is delayed, we shall be entitled to proceed with the tests in their absence and our bona-fide certificate of the tests shall be accepted as final evidence of the performance achieved. Should a witnessed test on the electric motors or other ancillary equipment be required at the maker’s works, this will be charged extra at cost.
- Any performance figures given by us are based upon our experience and are such as we expect to obtain on test in our works. We shall be under no liability for damages for failure to obtain such figures unless they have been specifically guaranteed, subject to the tolerance set out in the guarantee, in an agreed sum as liability. If the performance figures obtained on test in our works are not within the acceptance limits specified in the contract the Buyer will be entitled to reject the goods but before becoming so entitled or to claim liquidated damages under the specific guarantee we are to be given reasonable time and opportunity to rectify the performance.
- Terms of Delivery
- For France destinations: Delivery will be made at our works if no other destination is named in our tender. If a destination is named then the goods will be delivered to the nearest point of suitable access. Unless otherwise agreed the Buyer shall undertake and be responsible for unloading.
- For destinations other than France, Delivery will be made F.O.B. France Port acceptable to unless otherwise agreed. F.O.B shall be defined according to Incoterms, latest version of the F.O.B in effect at the time the offer is established.
- The property in the goods shall pass to the Buyer when and shall not pass to the Buyer until payment in full shall have been received by us. A cheque or other bill of exchange shall not be deemed to be payment unless and until the same shall have been duly met on presentation. Notwithstanding the retention by us of the ownership of the goods pursuant to this clause, the goods shall be at the risk of the Buyer as from delivery. If the Buyer shall sell any of the goods before the ownership shall have passed to the Buyer the proceeds of the sale and the rights to recover the same from the purchaser from the Buyer shall be held by the Buyer in trust for us until we shall have received payment in full of the amount due to us. Until the property in the goods has passed to the Buyer under this clause none of the goods shall be attached to any land, buildings or ship in such a manner as to become a fixture.
- Terms of Payment
- Unless otherwise agreed :
- A Stage Payment agreement is the company’s standard policy for custom manufactured equipment.
- All prices are strictly net and exclusive of Value Added Tax (VAT)
- Invoices will be rendered either after dispatch or on completion of the goods comprised in an order and after the scheduled dispatch date:
- Payment is due from customers with approved credit facilities by 25th of the month following the month of invoice. Payment in advance will be required in circumstances where credit facilities are withdrawn or not approved subsequent to the issue of an Acknowledgement of Order.
- The Company reserves the right to charge interest on overdue accounts at 3% over its Bankers base lending rate and such interest shall accrue on a day-to-day basis.
- Stipulations as to the time of payment shall be deemed to be the essence of the Contract, and the customer shall not make any deductions by way of set-off against the price invoiced.
- All payments shall be made in Euros (€ ). All bank charges associated with payment are to be for the Buyer’s account.
- Retention of Title (ROT)
All containers and packing material within France remain the property of the Company and unless returned in good condition carriage paid within 30 days of delivery will be charger for. Goods for export will be packed in accordance with the Company’s standard export practice.
- Right reserved
- The right is reserved to invoice all goods at the price current at the date of dispatch.
- The right is reserved to deliver and invoice part shipments of goods against any order unless specific instructions to the contrary have been given to the Company. If the Company fails to make any delivery or makes a defective delivery of any installment, then such failure or defective delivery shall not affect the obligations of the Company and the customer in connection with other installments and the customer shall not be entitled to treat such failure or defective delivery as a breach of the whole contract.
- Failure to pay
If the customer shall fail to make any payment as it becomes due, or if any, distress, execution or other legal process shall be levied upon or issued against the customer’s property or if the Customer shall commit any act of bankruptcy, or shall enter into any composition or arrangement with its creditors, or being a company shall have a receiver appointed or if any petition to wind up the customer shall be passed or presented, the Company may without prejudice to its other rights and remedies, either suspend or cancel further deliveries under the contract, stop any materials in transit or require payment in advance for all or any such further deliveries, and payment in respect of any delivery already made shall be immediately due.
Any dispatch date or time quoted for the execution of an order is provisional only, and the Company shall not be liable for failure, for whatever reason to dispatch on such date or within such time. In the event that we agree to be bound by the quoted time for dispatch or delivery or completion as the case may be and if we shall fail to dispatch, deliver or complete within that time or within any permitted extension thereof and as a result the Buyer shall have suffered loss thereby, we undertake to pay for each complete week of delay liquidated damages at a rate not exceeding 0.5% per week up to a maximum of 5% of that portion of the price named in the contract which is preferable to such portion only of the contract goods as cannot inconsequence of the delay be used commercially or effectively. The payment of such liquidated damages shall be in full and final satisfaction of our liability for the delay. The completion/delivery date shall be extended by a reasonable period if performance of the Company’s obligations in accordance with the contract is delayed by instructions or lack of instructions from the Buyer, industrial dispute or any cause whatsoever beyond the Company’s reasonable control, whether existing at the date of the Contract or arising thereafter which without in any way limiting the generality of the foregoing shall include earthquake, flood, fire or other natural physical disaster, plague or other epidemic, war hostilities, whether war be declared or not, invasion, act of foreign enemies, rebellion, revolution, civil war. insurrection, the usurping of power riot commotion or disorder, strikes, lock outs or general shortages of materials, acts or omissions of the Company’s suppliers, subcontractors breakdown or failure of electrical power or machinery, damage by fire or otherwise, shortage of transport or delays en route or failure or restrictions of Governments including restrictions or delays in issue of export or other licenses.
Liability for goods lost or damaged in transit will only be accepted in the following circumstances:
- In the case of France deliveries consigned carriage paid where damage is reported in writing both to the carrier and the Company within three days of receipt by the customer or in the case of non-delivery within such time from the date of dispatch as will enable the Company to make a successful claim on the carrier.
- In the case of export contracts: according to the type of export contract (e.g FOB or CIF) subject to which the goods are exported.
- The only liability accepted by the Company for the repair or replacement of defective goods is a liability to the original Buyer for the supply, free of cost to the Buyer, at our option, of such new or repaired part or parts as may be required to make good the defect in goods of our manufacture which are established to our reasonable satisfaction to have been defective at the time of dispatch, and where such defect is reported to the Company in writing before the expiration of defects liability period identified in Clause 11(f)
- Such liability does extend to :
- Goods not of the Company’s manufacture but where appropriate the Company will endeavor to obtain, for and at the expense of the customer, the benefit of any other warranty in relation thereto.
- Consumable items which require replacement according to usage including piston compressor valve assemblies and oil free piston rings, rotary vane compressor blades, filter elements. Door seal, bearing packing and thermocouples.
- This liability is conditional upon :
- The proper use and maintenance of the goods in accordance with the instruction manual or other notices issued in respect of them
- The delivery of the allegedly defective goods carriage paid by customer to such place as the Company may specify, and/or the provision of such facilities for inspection and testing as the Company may consider adequate.
- Defective parts replaced shall become the Company’s property.
- No repairs or alternations shall have been made without our knowledge and approval in writing :
- New or repaired parts will be delivered free of charge as Clause 5(a) and (b) above.
- The expression “defect liability period” means a period of twelve months from the date of commissioning. The date of dispatch will be deemed to be the date on which the goods are actually dispatched ex works unless any other date for the commencement of the defects liability period has been expressly agreed by the Company.
- Subject as provided above, the Company shall be under no liability whatsoever either during or after the defects liability period whether founded in common law or statue arising from the Company’ negligence or that of any person for whom the Company is vicariously liable, for any form of consequential or other loss howsoever caused, and is to be indemnified by the customer against all liability in respect thereof.
- The contract is governed by French law and customer submits to the jurisdiction of the courts of France.
- The Uniform Laws of the International Sales of Goods and the Uniform Laws on the Formations of Contracts shall not apply to this contract.
- The equipment offered is of standard commercial design and construction, not necessarily complying with any particular specification, unless otherwise stated.
- Where Survey is specifically referred to in our tender, the equipment offered in our quotation complies with the latest requirements of the Classification Societies stated and we include for the provision of the necessary certificates.
- The Buyer acknowledges that drawings and other documents and information furnished by us are disclosed in confidence and will not without prior written consent furnish copies of such drawings or documents or details of the information contained in such drawings or documents, to any third party.
- The copyright in drawings and information furnished to the Buyer by us is and shall remain our property or that of our suppliers as the case may be and the Buyer shall not without prior written consent and, where appropriate that of the copyright owner, alter such drawings or information for in any way, make further copies of such drawings or information or use such drawings or information for any purpose other than that for which they are provided.
- Our offer includes for one copy of paper print for approval purposes and a reasonable number of final prints after approval, of a general arrangement drawing. If reproducible copies are required, these will be provided free of charge. Copies in any language will be charge extra.
The goods we manufacture are designed in accordance with accepted international and British Standards and are as far as is reasonably practicable so designed and constructed as to be safe without risk to health when properly used. It is the obligation of the Buyer to ensure that the goods are properly installed, commissioned, operated and maintained by competent persons and in accordance with any instructions made available, relevant regulations and the accepted rules of the art. In the event that such goods are re-sold by the Buyer he will bring to the notice of the sub-purchaser any such instruction.
- Extra cost
We will incur extra cost if necessary: owing to variation or suspension of the work by the Buyer’s instructions or lack of instructions, or due to interruptions, delays, overtime, unusual hours, mistakes or work for which we are not responsible, such extra cost shall be added to the contract price and paid for accordingly.
- In the event of patent infringement claims in respect of any patent the specification of which is published prior to the date of the order relating to any part of the goods supplied by us (other than a part based on a design specified by the Buyer) we will at our expense either replace or modify such part with a non-infringing part or procure for the Buyer the right to use such part provided that we are given full opportunity to conduct negotiations in respect of such claims but in no event shall we have any liability for losses arising from non-use of any infringing part. The Buyer warrants that any design or instruction furnished or given by him shall not be such as will cause us to infringe any Letters Patent, Registered Design, Trade Mark or Copyright in the execution of his order.
- Patent and design rights relating to goods offered or supplied by us shall remain our absolute property and our designs and drawings shall not be reproduced or disclosed without our written consent. The Buyer will not without our previous written consent copy or allow others to copy any goods or part thereof supplied by us.
The Buyer shall be responsible for the provision of suitable foundations and seating and for all work to the structure of the site or of the ship occasioned by the installation. Any foundation plans supplied by us are based on our general experience but the Buyer is responsible for their adaption to the site.
- Quotation for supervision or erection
- Unless otherwise stated, our tender includes the supervision of erection only. We will supply competent supervision during normal working hours to supervise and give instructions to the required skilled and unskilled labor which the Buyer shall provide. All labor provided shall remain servants of the Buyer and under his control.
- The Buyer shall provide proper storage accommodation and suitable protection from time of delivery access to and possession of the site all erection and lifting equipment and scaffolding, masons, joiners and builders work, haulage, power, fuel and lubricating oil, any lighting, heating and cooling necessary on the site during the erection and all necessary facilities and adequate assistance. All these will be supplied at the Buyer’s expense to enable the work to be expeditiously and continuously carried out.
- cThe cost of keeping our men on the site after completion of the erection will be added to the contract price unless otherwise agreed.
- Our responsibility will be confined to supervision of:
- Erection of the goods by the Buyer.
- If the tender so provides, checking, testing and commissioning of the goods.
- Where supervision is quoted as an extra charge it shall be paid monthly at the agreed rate.
f.. The goods shall be deemed to have been taken over by the Buyer when erection has been completed and the goods have passed tests on site when these are specified or when they shall have been put into commercial use, whichever is earlier. Provided that in any case the goods shall be deemed to have been taken over at the expiration of two calendar months after we shall have given written notice that the erection is complete, unless in the meantime tests shall have been made showing that they do not comply with the terms of the contract. The time of taking over shall not be delayed on account of additions, minor omissions or defects which do not materially affect the commercial use of the goods.