CONDITIONS OF SALES – INDEPENDENT AFTER MARKET
ALL OUR SALES ARE REGULATED BY THE FOLLOWING GENERAL TERMS AND CONDITIONS:
1. GENERAL COMMENTS
Any departure from these general conditions of sales shall be necessarily materialized by a written amendment duly signed by Electricfil Automotive’s after-market Manager (hereinafter referred to as “Electricfil”). These are the only valid conditions and take precedence over all other documents like non-promissory catalogues, brochures, leaflets, advertising, etc except sales agreements.
All orders placed with Electricfil automatically imply acceptance by purchasers of these general terms and conditions of sale.
In his order, the purchaser shall insert the number of the offer issued by Electricfil which reserves the right to otherwise refuse said order. The purchaser shall also take into account the data and conditions specified in Electricfil’s offer in order to establish his order.
The prices of products are those agreed upon between Electricfil and the purchaser (as mentioned within the pertaining offer) calculated on the basis of the unit price scale beforehand communicated by Electricfil to the purchaser.
It is agreed that the unit price scale must be changed frequently.
Unless otherwise stated, prices are net and ex-works. Consequently, any taxes, dues or other fees to be paid according to French law or those of an importing country or country of transit are paid by the purchaser.
All quotes are in Euros, unless otherwise stated. When these quotes are made in a currency outside the Euro area, the exchange rate is the fixed official parity on the day the quote is made.
Except otherwise stated, the price is given for annual forecasted volumes. Any price reduction will be applied only when said volumes will be exceeded. In the event said volumes would not be reached, Electricfil and the purchaser will renegotiate the prices in good faith.
Batch manufactured products comply with the production sample approved by the purchaser. Production will not be launched until Electricfil receives written approval of this sample from its customer.
Delivery is carried out either by handing-over the product directly to the purchaser, or by simple notification of availability being given, or by delivery to a shipper or carrier at Electricfil's premises as agreed between Electricfil and its customer. The contractual delivery terms are interpreted in accordance with applicable Incoterms shown in the quote or the sales agreement.
The deliveries are made according to the schedule defined in the quote. Electricfil is released from its obligations in the event of force majeure, as defined in paragraph 18 of these general sales conditions, and undertakes to warn its customer of these cases and events within reasonable time. In any case, delivery within deadlines can only be made if purchasers have respected their obligations to Electricfil.
Delivery completion periods are always those shown on the order acknowledgement, or for lack, those shown on the order itself. Delivery periods shown in quotes are purely indicative.
As far as forwarding is delayed at the request or with the assent of the purchaser (provided that Electricfil agrees), the products and equipment are stored and handled at Purchaser’s own expenses and risks. These provisions do not modify in any way the purchaser's obligations to pay for the goods.
In the event of litigation about the designation and characteristics of the products delivered, only the drawings and documents forming part of the sales agreement issued by Electricfil and referred in the quote will be considered.
7. PACKAGING AND PACKING
Packaging is not included in the prices unless otherwise stipulated. Special packaging requirements must be specified in the order and will be invoiced separately. Products can, if specifically defined and detailed in the quote, be packed in individual packaging to enable technical identification.
Within thirty (30) days of delivery, purchasers will return, at their expense, the containers, the cases, the pallets and other reusable packing belonging to Electricfil. Failure to do this will entitle Electricfil to be paid the value of this packing.
8. SUBCONTRACTING OF PROCESSING OF PERSONAL DATA
Within the framework of the performance of the Contract, if the Supplier has to perform operations of processing of personal data in the name and on behalf of the Buyer, the Parties agree that a specific agreement on processing of personal data must be concluded prior to operating such processing.
This agreement must be compliant with the regulations applicable for processing of personal data and in particular, the European Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016, including the G29 Guidelines, which shall enter into force from May 25, 2018.
Unless otherwise stated, payment terms are as follows: immediate payment upon receipt of the invoice by bank transfer. If payment is late, Electricfil has the right to suspend all pending orders and take any other appropriate action including legal redress. Any sum not paid at the limit fixed on the invoice involves the application of penalties of an amount equal to three times the French legal interest rate in effect, in addition to the basic allowance for collection charges equal to 40€.
In the event of non-payment forty eight (48) hours after an unheeded formal warning, Electricfil has the right to cancel the sale automatically and require, by summary procedure, the restitution of the products, without prejudice to other damages awarded by the Courts. The resolution shall also apply to all other unpaid orders, already delivered and being delivered for which payment is due or not.
The products delivered by Electricfil comply with existing standards and specifications. Unless otherwise agreed upon by the parties, the warranty covers material and/or manufacturing defects of our products. The warranty period will expire on the earlier of (a) the thirty-six (36) month period from the date code of the product, and (b) the twenty-four (24) month period from the date of its mounting on vehicle (see purchaser’s invoice issued to its customer for the mounting on vehicle and product sale). Interventions within the warranty period do not extend it.
To sue the warranty, purchasers must notify Electricfil about the defect as soon as it appears and must be able to prove the mounting on vehicle of the product has been made by a professional. If the defect is likely to generate damage, the notification must describe the defect precisely and in detail. Purchasers lose their right to repair if they do not notify the supplier about the defect within the deadlines and conditions specified in this clause.
For Electricfil, warranty means replacing the defective product free of charge. No liability for a compensatory payment for any reason whatsoever can be accepted. Before replacement under warranty, the Electricfil engineering department must approve the course of action to be taken. Purchaser loses the right to replacement of the defective part if it is not returned to Electricfil within ten (10) days. Replacement of the defective product will be exclusive of any potential expenses reimbursement (transport charges, disassembling, reassembly, towing…).
Warranty does not cover defects caused by incorrect assembly which would not respect the state of the art and/or which would not be performed by a professional, defective maintenance, abnormal use or storage, normal wear or assemblies in environments which do not comply with the restrictions described in specifications or specifications emanating from purchasers. Electricfil cannot accept any liability for assembly operations that do not comply with recommendations for fitment and use and/or common practice. Unless otherwise stipulated, Electricfil is not responsible for loss of production, loss of profit, loss of use, failure to sell nor any other consecutive, economic or indirect loss whatsoever by the purchaser.
11. IMPOSSIBILITY OF PERFORMANCE
Before or after the start of production, to the extent that Electricfil cannot manufacture the product, the purchaser shall be entitled to claim damages, unless Electricfil is not responsible for the mentioned impossibility. The purchaser’s claim for damages shall, however, be limited to an amount corresponding to ten (10) % of the value of the part of the firm order which does not respect the contractual technical specifications.
12. OTHER CLAIMS FOR DAMAGES
Any other claims for damages and reimbursement of expenses the purchaser may have, based on whatever legal reason, including infringement of duties arising in connection with the contract or tort shall be excluded.
13. ENTIRE AGREEMENT
Voidance of one of the clauses of the present Conditions of Sale shall not void the remaining clauses. The void clause shall be replaced by a clause designed to produce an equivalent financial and legal effect as the original clause.
14. TERMINATION FOR CAUSE
In the event that one of the parties fails to perform a clause of the contract, the other party may order it to correct such non-performance by recorded delivery letter.
If the obligation in question is not performed or no written agreement is reached between the parties within sixty (60) days following the date on which the reminder was sent, the injured party may automatically terminate the contract, by recorded delivery letter. The contract may also be terminated before its expiration date and without notice in the event of force majeure lasting more than ninety (90) days.
In every case of termination, the purchaser shall reimburse Electricfil for all the components procured for the execution of the sales agreement, semi-finished products, finished products as well as all the financial consequences due to the forced termination of the contracts concluded between Electricfil and its own suppliers.
Termination will produce its results only for the future and will not be retroactive.
15. RESEARCH, DRAWINGS AND DESCRIPTIONS
All research, drawings and technical documents relating to the products or their manufacture made available by Electricfil before or after a sales agreement or order comes into force, remain its property. Electricfil is not obliged to provide detailed manufacturing drawings for products. Without specific assent by Electricfil, drawings and documents loaned to customers cannot be used for other purposes and may be neither copied, transmitted nor communicated to third parties.
All information and documents transmitted by Electricfil, of any kind (technical, commercial, etc.) and under whatever form (email, oral and written disclosure) must be kept strictly confidential, and in any case, must not be disclosed to a third party and/or be used by the Purchaser for its own needs without the prior written agreement of Electricfil. The latter has the right to require that any and all research, documents and other data transmission media be restored immediately and without prior notice. Electricfil reserves the right to undertake litigation in the Courts to enforce these conditions.
Any drawing coming from Electricfil is and remains its exclusive ownership by virtue of the protection under copyright.
In the cases when Electricfil undertakes to copy a drawing submitted by the purchaser, the latter warrants Electricfil against any legal action launched by a third party and undertakes to indemnify Electricfil of any and all costs it may bear in the framework of a litigation.
When Electricfil is the designer of the product, it is the only owner of any result emanating from the design of the product, this includes all author's patrimonial rights for the duration of validity of said rights and for any countries, aiming at a direct and indirect use by Electricfil. These rights consist in the right of reproduction and presentation and notably adaptation, modification, utilization, marketing and broadcasting, translation, arrangement of results, present or to come. These rights will become, from their creation, the ownership of Electricfil without signature of any document. Electricfil does not allocate to the purchaser any kind of licence of working, manufacture, assignment of any result. Any licence granted to the purchaser shall be agreed upon by Electricfil in a separate signed agreement.
If results were likely to be patented, in main title or as improvement, Electricfil will be the sole owner of these rights of intellectual ownership. When Electricfil is not the designer of the product, it does not warrant the purchaser against any legal action such as claim, unfair competition, or infringement suit.
18. RESERVE OF OWNERSHIP – TRANSFER OF RISKS
THE TRANSFER OF OWNERSHIP OF THE DELIVERED PRODUCTS SHALL BE EFFECTIVE ONLY AFTER ENTIRE PAYMENT OF THEIR INVOICES. Nevertheless, there is an immediate transfer of risks of loss or deterioration of property upon the date of delivery of the products by Electricfil.
19. FORCE MAJEURE
A case of force majeure is defined as an event beyond the control of Electricfil, which could not have been reasonably anticipated at the time the contract and/or the order were entered into effect, and which the effects, because they could not have been avoided by appropriate measures, prevent the execution of said contract and/or order by Electricfil.
Electricfil is released from its contractual obligations in the event the fulfilment of such obligations is prevented or becomes unreasonably costly, notably due but not limited to, any of the following circumstances: labour disputes, fire, war (declared or not), insurrection, requisitions, state of crisis, embargo, power cuts and defaults or delays in the delivery of products from subcontractors and suppliers resulting from the circumstances enumerated in this clause. Electricfil undertakes to inform the purchaser of such circumstances as soon as possible.
20. JURISDICTION – APPLICABLE LAW
The French law applies to these General Conditions of Sales to the exclusion of its conflict rules of laws.
Any dispute arising out in connection with the construction and/or the execution of these General Conditions, shall be settled by the Tribunal of Commerce (High Court Sitting in Commercial Matters), in Lyons, France, unless Electricfil and the purchaser decide to try to resolve the litigation through an amicable settlement. This clause applies even in the event of summary procedure, incidental request, plurality of defendants or appeal with guarantees, and whatever the means of payment may be.