Terms and conditions of sale and delivery of HIWIN SAS, Registered office: 17, rue des Cigognes - Immeuble Le Méléze, 67960 Entzheim, France.
Validity
1.1. All deliveries and services are governed exclusively by these general terms and conditions. The purchaser's terms and conditions of purchase shall not apply even if HIWIN does not expressly object to them after receiving them.
1.2. These general terms and conditions apply only to contracts concluded between us - HIWIN - and a professional, defined as any natural or legal person or any partnership with legal capacity which, when concluding a legal act, acts for purposes falling within the scope of its commercial, industrial, craft, liberal or agricultural activity.
2. Offer and conclusion
2.1. Our offers are non-binding.
2.2. Orders are only deemed to have been accepted if we have confirmed them in writing.
2.3. The contract is concluded on the date of written acceptance of the order by HIWIN. Prior to this date, these general terms and conditions have been made available to the buyer, as referred to in article L. 441-1 of the French Commercial Code.
2.4. Our written confirmation of the order is authoritative as to the scope of delivery. Ancillary agreements or modifications necessarily require our written or electronic confirmation.
2.5. We reserve all proprietary rights and copyrights to all quotations, plans/drawings and other documents; they may not be passed on to third parties. If no contract is concluded, plans and other documents provided during the pre-contractual phase must be returned to us without delay on request.
3. Prices and terms of payment
3.1. Prices are exclusive of VAT and ex works. Packing, loading and dispatch costs, as well as customs and insurance costs where applicable, shall be borne by the purchaser. The VAT applicable is that at the legal rate in force on the date of confirmation of the order.
3.2. Unless other terms are expressly provided for by special conditions, the price is payable on receipt of the invoice, at the latest within 30 days of the date of issue of the invoice, net and less a 2% discount in the event of payment within 10 days of the invoice date. Invoices cannot be paid by cheque or commercial paper.
3.3. Payments due to HIWIN may under no circumstances be suspended or be subject to any reduction or compensation without written agreement from HIWIN.
3.4. In the event of non-payment on the due date by the buyer, penalties equal to the semi-annual key rate of the European Central Bank (ECB), in force on1st January or1st July depending on the date of the order, increased by 8 points, will be due. Late payment penalties are payable without the need for a reminder. If the buyer does not react to the first formal notice to pay, HIWIN is entitled to order the immediate payment of all other invoices that may not yet have been paid.In application of article D. 441-5 of the French Commercial Code, in the event of late payment, the buyer will automatically owe HIWIN, in addition to late payment penalties, a fixed indemnity for collection costs of 40 euros. HIWIN reserves the right to request additional compensation if the collection costs actually incurred (formal notice costs, collection costs, legal costs, etc.) are higher than this fixed amount.
4. Delivery time, late delivery, consignment stock
4.1. Compliance with an agreed delivery deadline presupposes that the purchaser has provided the documents, permits and authorisations that he was required to deliver in good time, and that he has fulfilled all the obligations incumbent upon him. If the buyer fails to do so, the deadline will be reasonably extended unless the seller is responsible for the delay. If the start of performance or delivery is delayed or interrupted for reasons for which the buyer is responsible, the performance deadlines will be extended accordingly and the delivery dates will be postponed accordingly.
4.2. The delivery deadline shall be deemed to have been met if the object of the order has left HIWIN's factory before the deadline expires or if HIWIN has notified the buyer that the goods are ready for dispatch.
4.3. If non-compliance with the delivery deadline is due to events constituting force majeure, strikes or other events beyond HIWIN's control, the delivery deadline will be reasonably extended. HIWIN will notify the buyer as soon as possible of the occurrence and end of such events.
4.4. If the purchaser proves that he has suffered prejudice as a result of a delay attributable to HIWIN, he may demand flat-rate compensation for delay, amounting for each complete week of delay to 0.5% of the total purchase price of the part of the order whose delivery is delayed. This compensation is limited to a maximum of 5% of the value of the delayed part of the order. Any other right or action by the buyer against HIWIN due to late performance is excluded.
4.5. In the event of late delivery, except in cases of force majeure, the purchaser may request the cancellation of the contract if, after having served notice to perform within a reasonable additional period, the purchaser has not performed.
4.6. If it has been agreed with the purchaser that an agreed fixed quantity is to be delivered within a defined period (contract period), and if the purchaser has the right to fix the date of each delivery, delivery calls must be made no later than eight weeks before the desired delivery date. After expiry of the agreed contractual period, HIWIN may deliver and invoice the buyer for the agreed quantities not yet called for.
4.7. If it has been agreed with the purchaser that a specific or unspecified quantity is to be delivered during a specific or unspecified period, and if the purchaser has the right to set the date of each delivery, increases or reductions in the quantities to be delivered per time unit must be notified no later than twelve weeks before the desired delivery date. If the quantity to be delivered per time unit is reduced by more than 35%, or if it is stopped, HIWIN is entitled to deliver and invoice the buyer for all goods manufactured or in the process of being manufactured.
4.8. If HIWIN establishes a consignment stock with the buyer, the latter automatically becomes the owner of the goods stored for more than six months. The buyer undertakes to pay the price of the goods of which he has become the owner, either because he has taken them from stock, or because the goods have been stored for more than six months. HIWIN reserves the right to carry out a stock control. The buyer undertakes to keep the goods under consignment in a different place from the other goods.
5. Transfer of risk and dispatch
5.1. The risk is transferred to the buyer as soon as HIWIN hands over the goods to a carrier. Dispatch, loading and unloading as well as transport are always at the buyer's risk.
5.2. If dispatch is delayed due to circumstances for which the buyer is responsible, the risk is transferred to the buyer from the day HIWIN notifies the buyer that the goods are ready for delivery.
5.3. At the buyer's written request, we undertake to take out transport insurance at the buyer's expense.
5.4. Partial deliveries are permitted.
5.5. Packaging will not be taken back.
6. Guarantee
6.1. On receipt, the buyer must check that the products delivered conform to the products ordered and that there are no apparent defects.
6.2. If no complaint or reservation is made in this respect by the purchaser in writing within 10 days of receipt of the products, the said products may, pursuant to the provisions of article 1642 of the French Civil Code, no longer be taken back or exchanged.
6.3. In case of lack of conformity, HIWIN will repair or replace the product. In this respect, the buyer must allow HIWIN a reasonable period of time to carry out the repair or replacement. The buyer may only claim damages if the repair or replacement has failed.
6.4. The repair of an alleged defect by the buyer does not constitute recognition of this defect.
6.5. Furthermore, the products sold are covered by the legal guarantee against hidden defects, as defined inarticle 1641 of the French Civil Code. Hidden defects must be notified in writing within 10 days of their discovery.
7. Reservation of ownership
7.1. Goods are sold subject to retention of title. HIWIN retains ownership of the goods delivered until full and effective payment of the price by the buyer, including any interest incurred. In the event of non-payment, we may reclaim the goods and terminate the sale.
7.2. The purchaser is authorised to resell the goods subject to this retention of title clause before full payment of the purchase price, provided that he notifies the subsequent purchaser in writing that these goods are subject to this retention of title clause, and informs HIWIN accordingly. The claim arising from this resale is then automatically transferred to HIWIN. The purchaser undertakes to provide HIWIN, on request, with all the information necessary for the exercise of HIWIN's rights arising from the retention of title, in particular the name of the subsequent purchaser and the sums that the latter owes HIWIN. The buyer retains the mandate to collect these debts. He undertakes to deposit the sums received in this respect in a separate account. In the event of resale of the reserved goods together with other goods not belonging to us, the claim held by the purchaser against the buyer is assigned to us up to the amount of the delivery price agreed between us and the purchaser.
7.3. The present retention of title clause remains valid in the event of processing or incorporation of the goods into other objects which do not belong to us. HIWIN then acquires co-ownership of the new item in proportion to the value of the item sold under retention of title.
7.4. The buyer undertakes to insure, maintain and care for the goods in an appropriate manner, and to bear the costs thereof. If he fails to do so, we shall be entitled to take out insurance at the buyer's expense. Any costs incurred in taking legal action to recover the reserved goods shall be borne by the purchaser, up to a reasonable amount. These provisions do not prevent the transfer of the risks of the products sold upon delivery.
8. Liability
8.1. HIWIN's contractual liability towards the buyer is limited to the direct loss suffered by the latter. To the fullest extent permitted by law, HIWIN's contractual liability is expressly excluded for any indirect financial loss suffered by the buyer, including but not limited to: loss of production/operations, lost profits, commercial loss, penalties to be paid to a third party, loss of opportunity, turnover, profit or clientele, loss of image, etc.
8.2. The provisions of the previous paragraph do not apply in the event of wilful or intentional non-performance of the contract, or personal injury.
8.3. In any event, HIWIN is not liable for damage caused by improper use or storage, excessive use, failure to comply with the use and installation instructions, incorrect assembly, commissioning, servicing or maintenance by the purchaser or by unauthorised third parties, or by normal wear and tear. This exclusion of liability also applies if the defect is attributable to a material supplied by the purchaser.
8.4. In all cases where permitted by law, the rights and claims of the purchaser against HIWIN are subject to a limitation period of 1 year from delivery of the goods or acceptance of the services.
9. Applicable law, place of jurisdiction and miscellaneous
9.1. These general conditions are subject to French law.
9.2. Any dispute relating to the interpretation, execution and resolution of the contracts concluded between HIWIN and the buyer will be the exclusive jurisdiction of the Strasbourg Commercial Court.
9.3. If certain provisions of these conditions are or become null and void, the validity of the other provisions will not be affected.