GENERAL CONDITIONS OF SALES TRATO-TLV GROUP (Applicable on 01.01.2014 for TRATO Industries SAS, TLV SAS)
By making an order with us the client implies acceptance without reservation of our general conditions of sale, as supplemented or amended by the individual conditions appearing on the reverse side of our Acknowledgements of Order, the content of which represents the order and the firm and definitive conditions of sale: these conditions cancel and replace all the purchase conditions of the client, except where otherwise agreed in writing; our conditions of sale are subject to the permanent agreement of our credit insurance, for the whole duration of the supply agreement.
1. OFFERS AND QUOTES
All of our prices are expressed in euros and drawn up net of duties and taxes, the amounts of which, assessed at the rates in force, shall be added to the totals invoiced. Our rates are indicative price scales that apply to a specific period. The price offers and quotes shall prevail over the rates and scales in all circumstances; the validity period of our offers and quotes is 3 months, unless otherwise agreed. Our documentation and advertising shall never constitute contractual documents. Finally, the prices are deemed to be reviewable at the end of the validity period of the above-mentioned offers, or on 1 January of each year; however, due to possible variations in the cost of labour and raw materials, we reserve the right to modify at any time after the expiry period, without prior notice, our prices and scales, as well as our conditions of supply and payment, by applying a price review formula. For TLV SAS, unless otherwise agreed, the following formula, based on the development of the price of aluminium on the LME and the BT 47 index, is applied in all cases: P = Po x ((0.8 x BT47/BT47o) + (0.2 x LME/LMEo)) where Po is the initial price, P the revised price, BT47o the initial index, BT47 the index at the date of review, LMEo the initial aluminium price and LME the aluminium price at the date of review. For TRATO Industries SAS, unless otherwise agreed, the following formula, based on the development of the cost of labour, of steel and of electrical equipment is applied in all cases: P = Po x (0.15 + 0.85 ((0.5 x M/Mo) + (0.3 x A/Ao) + (0.2 x E/Eo)) where Po is the initial price, P the revised price, Mo the initial INSEE 063021506 index, M the INSEE 063021506 index at the date of review, Ao the initial INSEE 085023025 index, A the INSEE 085023025 index at the date of revision, Eo the initial INSEE 084974929 index and E the INSEE 084974929 index at the date of review. The prices do not take into account, for the lamps, the effect of the costs arising from the obligations enacted by the European Directive 202/96/EC relating to WEEE. For export, this is understood to be for material in standard packaging, ex works. The lamps are never supplied or installed, unless otherwise expressly agreed in writing and, in the event of a supply, travelling at the exclusive risk of the client.
2. STUDIES, PLANS, PROTOTYPES AND PROJECTS
The studies, plans and projects issued by our company shall remain our entire property and must be returned to us should the order not be made with us, even if the client has paid us a lump sum to draw them up. These documents may not be copied, communicated or used by third parties without prior written authorisation, other than for the purposes of execution of the order by us. The prototypes supplied for trials shall remain our entire property and must be returned to us should the order not be made with us, and the costs of return transport shall be payable by the client. In the event of failure to return, the prototypes shall be invoiced.
3. ACCEPTANCE OF ORDERS
Every order shall be deemed to have been accepted under the conditions of our acknowledgement of receipt of order from the time of its delivery; every order shall be deemed to be executable from the moment when we have received from our client an original document that is complete and in order, setting out the name and the details of a representative of the client empowered to make the order on behalf of this client and the number of the quote or proposal referring to it. The date of receipt of this document in our offices must, moreover, come within the validity period of our quote, offer or proposal. Making the order shall be equivalent to agreement to transfer to the client the recycling operations in the event that the product is scrapped. In the specific case of an order for materials to be made on measurements, the execution plans sent for approval and countersigned by the clients, their representatives or any person qualified to make a binding agreement in the name of the client, or the plans sent for information, shall be equivalent to plans that are “good for manufacture” and are therefore deemed to form an integral part of the commercial agreement and we therefore do not consider such an order to be complete until after receipt of the plans duly approved by the client. Consequently, where the materials that have been manufactured and delivered in accordance with the plans submitted to the client for information, or approved by it, show any other error of manufacture or delivery, this shall be the sole responsibility of the client, who alone shall bear all of the costs of replacement or of restoring non-compliant materials to specification, our invoices being due in their entirety. At all times, we reserve the right to cancel any order where the client becomes bankrupt, is in a situation of judicial settlement, signs a partnership agreement with one of our competitors, or is not up-to-date with its payments in relation to one of the companies of the TRATO-TLV Group. We reserve the right to make, without prior notice, all useful improvements or modifications to our materials without having to make identical modifications to the equipment already delivered or to be delivered in relation to previous orders or delivery schedules.
Our invoices are established on the basis of the prices in force on the date of invoicing and the additional commercial negotiations that have preceded the issuing of the order. Our invoices, that are sent at the same time as the dispatch of the goods that they cover, are payable in accordance with the conditions set out in the Acknowledgement of Order; in the event of payment at the time of availability, upon collection, or cash-on-delivery, where there is delay in collection or refusal to receive the material ordered at the time of delivery, we authorise invoicing to be drawn up under the conditions set out in the Acknowledgement of Order. Unless otherwise expressly agreed in writing, orders that have deliveries spread out over several months shall be invoiced in keeping with the deliveries.
5. DELIVERY PERIODS
Orders may be executed in one or several deliveries. The delivery periods indicated in the Acknowledgement of Order are indicative and are drawn up in accordance with the provisional production planning known at the date of the order. Considering the constraints of manufacture, we reserve the right to organise, in accordance with the best respective interests, the rhythms of manufacture and of delivery. Where it is impossible to supply a given material, or to deliver in the indicated provisional period, no penalties or damages may be claimed, unless otherwise expressly agreed in writing. Our delivery periods are deemed, at all times, not to include holiday periods and shall run from the date of technical, administrative and financial clarification of the order; where relevant, the order shall not be deemed to be executable and the manufacture period shall not begin to run until after delivery in our factory, or at any place agreed in advance, of the specific supplies and accessories to be fitted or cabled by us under the order, within the materials that are the subject of the said order (Likewise: medical fluid accessories to be pre-tubed in certain cases of hospital materials). These accessories, known as “client supplies”, shall be dispatched, received, stored and insured at the exclusive cost of the client. Any request for technical modification after the approval of the plans shall be the subject of a surplus value, in accordance with the work already carried out, the non-recoverable components used and all connected costs (dismantling, re-assembly, engineering, etc.). Such late modifications shall result in a legal extension of the manufacture period, in accordance with our manufacturing plan and the extent of the modifications to be made and the formal approval of the plans.
Our dispatches benefit from post and packaging paid for every unit to be delivered on a single occasion in (metropolitan) France of at least 500 (five hundred) euros net of tax: for any smaller order, a contribution of 50 (fifty) euros net of tax, corresponding to post and packaging costs additional to the internal management costs, shall be invoiced. All deliveries shall be made with prohibition on the transporter to sub-contract the dispatch. Our materials travel at the risk and peril of the buyer, even in the event of return or delivery made with post and packaging paid and cash-on-delivery. It is the responsibility of the buyer to make all of the reservations necessary and to bring any actions against the transporters in the event of damaged or missing products; the absence of reservation or complaint at the time of acceptance of the goods shall cancel any right to compensation from the insurance of the transporter or by our company. In the event of delay in delivery in relation to the contractual periods, no penalty may be applied to us if this was not set out in the order and confirmed on our Acknowledgement of Order.
No return of material may be made without our prior agreement in writing. The returned material must be re-dispatched in its original packaging in a perfect state, postage paid to the address indicated in the agreement to return the goods. Where no fault or error of manufacture is attributable to us, the credit of the material returned shall be limited to 80% (eighty) of the amount invoiced. Finally, equipment made-to-measure under an order shall not be exchanged or taken back under any circumstances.
The duration of the guarantee covering our materials is 1 year from the date of delivery; however, the guarantee of the components and equipment manufactured or supplied by others, to be incorporated in our materials or included with our deliveries, is reduced to the guarantee period granted by their manufacturers or suppliers. Regarding TRATO or TLV branded LED lighting sources equipped products; warranty period may be extended to 5 years under the specific conditions as described for each Companies of the Group and put at disposal on their respective web sites. The guarantee gives entitlement to exchange of the defective components, accessories or materials, except for the labour of dismantling, re-assembly and any transport costs that are payable by the client; no component or accessory shall be replaced if it is not returned to us in advance; where it is impossible to return the material, a sufficient set of incontestable evidence establishing the defect or defects as well as our clear liability may result, after our assessment and written agreement, in the replacement of the defective material; however, we reserve the right to obtain a supplementary expert opinion at any time to inform our opinion on our possible liability. Our guarantee does not cover defects that arise from non-observance of the instructions for use, from a cause that is unrelated to the material (bad electrical installation, over-voltage, lightning, etc.), from bad conditions of storage, bad protection against bad weather, the absence of appropriate security in the place of storage, inadequate conditions of maintenance or transport, involuntary or intentional blows and damage, modifications made to the material without our written agreement (or interventions by the client or by a third party carried out on the equipment); it is emphasised that storage in a lighting equipment container is not considered to be an adequate method of storage on the site. The replacement of certain components or elements subsequent to delivery shall not prolong the duration of the guarantee unless otherwise expressly agreed. No indemnity shall be granted for loss of use. The user shall benefit from the provisions of Articles 1641 et seq. of the French Civil Code relating to the legal guarantee.
The French laws 92442 of 31 December 1992 and 93122 of 29 January 1993 shall govern the conditions of payment.
1) General conditions: The conditions of payment are established freely by our company taking account of the references supplied by the client, the advice of our credit insurers or the known record of this client; they are set out on the reverse of our Acknowledgements of Order. All of our invoices are payable at 22 Rue Molière, 59100 ROUBAIX, France. The normal conditions of payment are understood to be as follows: either upon making the order (in all cases for spare parts), before dispatch or cash-on-delivery, upon delivery of the materials to the agreed location, or at an agreed maturity date, upon receipt of the material; or at term, by bill of exchange, registered bill of exchange, cheque, transfer, promissory note or documentary credit and at the latest 30 (thirty) from the end of the month. The supplies and installations that are specific or made-to-measure, or that require long manufacture of delivery periods, shall give rise to down payments, in the course of manufacture and invoicing in keeping with deliveries; the delivery of payment orders that create an obligation to pay (cheque, promissory note ….) shall only constitute a payment subject to their actual collection.
2) Maturity dates: The dates of payments appearing on our statements or invoices shall be established in agreement with the client and indicated on our Acknowledgements of Order; the arrival of the maturity date shall constitute formal notice. Any derogation from the conditions of payment agreed must be the subject of written agreement prior to the arrival of the maturity date. Regardless of the method of payment used, the payment must be effectively collected at the place indicated on the invoice or statement, on the due date mentioned in these documents; bills of exchange that are submitted for acceptance or promissory notes must reach us at the latest 15 (fifteen) days after the invoice date. Any exceeding of this period for the return of payment orders shall be deemed to be a default of payment.
3) Discounts: A discount of 0.7% (zero point seven) shall only be deductible from payments on condition that the payment is made in cash before delivery or with cash-on-delivery or within 10 (ten) days from the date of invoicing; no other payment shall give entitlement to a discount, unless otherwise expressly agreed.
4) Delay in payment and penalties: In default of collection of the payments within the agreed periods, and after 30 (thirty) days of delay, a penalty of 15% (fifteen) for damages shall be due without prejudice to the interest and costs of proceedings incurred by the company. In the event of delay in payment in relation to any of our invoices, all of the amounts due, even at term, shall become immediately payable under law and shall bear interest at the legal rate of interest multiplied by the 1.5 (one point five) legal minimum coefficient, together with tax. According to Code of Commerce articles L.441-3 & L.441-6 dispositions, a 40 € indemnity for recovery costs will be applied on any payment delay, independently of any other penalty. Finally, our Company may declare terminated, for all legal purposes, the sale of all or part of materials that have not been paid for in full, cancel orders in progress and refuse all future orders. Finally, a debit note corresponding to the legally applicable penalties may be drawn up by us, where relevant.
For direct orders from abroad or orders delivered in France to be exported, the conditions of packaging, invoicing and of customs clearance and of payment shall be stated and adapted on a case-by-case basis; the payment shall be made in cash before delivery or in 30 days net, according to the country of origin of the order.
11. RESERVATION OF OWNERSHIP
Our Company shall retain the ownership of the materials sold, until complete payment of their price, even where there is an extension of the due date. Our clients must not alter or remove the identification signs of these materials and of their packaging, and they authorise verification of this at any time in their stocks. They shall bear the damage that these materials may suffer or give rise to as well as the possible costs of restoration. Where materials that have not been paid for have already been resold to third parties, our Company shall be legally entitled to obtain complete payment of the price by any judicial and legal means possible, with all the costs occasioned by these procedures being paid by the client, without prejudice to any damages and interest.
12. FORCE MAJEURE
In the event of a case of force majeure, performance of the obligations of the companies of the TRATO-TLV group shall be suspended. This is particularly the case in the event of a total or partial strike that hinders the functioning of the TRATO-TLV group company concerned or one of its suppliers or sub-contractors or transporters, as in the case of interruption of the means of communication or energy, or in the event of an embargo.
In the context of Decree 2005-829 relating to the elimination of waste from professional lighting, the organisation and financing of the collection and treatment of this waste are transferred to the Buyer. The Buyer undertakes to transmit and ensure the transmission of the above-mentioned obligations to the successive professional buyers of the products.
Only French law shall be deemed to be applicable; any dispute relating to orders shall come within the exclusive jurisdiction of the Court of Commerce that has competence over the TRATO-TLV Group company in question.