Fixator General Conditions of Sale
1 – GENERAL PROVISIONS
All sales of products or merchandise (hereinafter known as "Products") carried out by FIXATOR are subject to these general conditions.
FIXATOR general conditions of sale shall prevail with regard to any general conditions of purchase or any other conditions indicated on the documents issued by the CUSTOMER. Furthermore, any order addressed to FIXATOR denotes the unreserved acceptance of the price rates and these general conditions of sale.
Any other condition shall only be taken into account if it has been expressly accepted by FIXATOR before the date that the contract was drawn up. The fact that FIXATOR may refrain at a given time from making use of one of these terms and conditions may not be construed as a waiver of its right to make use of any of the said conditions in the future. Similarly, should any of these clauses of these conditions be rendered void the validity of the other clauses shall not be affected.
The data, standards and characteristics indicated in the FIXATOR documents (catalogues, notices, prospectuses, etc) are given merely as a guide. Furthermore, the Products featured may be changed or removed by FIXATOR at any time. It is therefore the responsibility of the CUSTOMER to verify the characteristics of the Products sold by FIXATOR before making each order. Provided that the essential nature and performance of the Product is not affected, FIXATOR, upon acceptance of orders, reserves the right to make any changes to its Products which it deems appropriate.
In any event, FIXATOR cannot, under any circumstances, guarantee the provision of spare parts that have been removed or changed subsequent to the sale, nor those belonging to a model where the sale has not been completed.
2 – APPLICABLE LAW – ALLOCATION OF JURISDICTION
The orders or contracts shall be subject to French law.
Any disputes with a CUSTOMER arising from the drawing up, execution or interpretation of the order or contract shall be subject to the competent Court of Angers, even in the event of summary judgment, the introduction of third parties, incidental claim or multiple defendants and whatever the method and terms of payment or the location of the orders and delivery.
3 - ORDERS
The sale contracts are only validly drawn up upon written confirmation of the Customer's orders by FIXATOR, or in the absence thereof, in accordance with the availability of the ordered Products at FIXATOR. However, any purchase order shall obligate the Customer from the time it is issued. The order benefits the Customer only and may not be transferred without the agreement of FIXATOR.
4 – RETENTION OF OWNERSHIP
Title to the Products remain with the seller until complete payment is received. The payment means the effective payment of costs relating to the sale and interest into FIXATOR’S account. Any clause to the contrary, particularly one inserted into the general conditions of sale, shall be deemed to be unwritten, in compliance with article L. 624-16 of the Commercial Code.
In the event of even partial non-payment of an instalment, the Customer must return the Products that have not been paid for at his/her own cost, risk and peril upon application for formal notice by registered letter with acknowledgement of receipt and the Products that the Customer holds in stock shall be deemed to be the unpaid stock. In this case, the sale shall be completed lawfully, on the day of the request for restitution.
FIXATOR shall retain disbursements paid as damages, without prejudice to any other compensation.
The Customer shall under no circumstances pledge or give collateral consent with regard to Products that have not been paid for.The Customer shall however retain the right to resell the Products under reservation of ownership. The Customer undertakes to immediately communicate the names and addresses of purchasers to FIXATOR, as well as the amounts owed by them. In any event, the resale price shall be subrogated to the Products that have not been paid for and which FIXATOR shall own until the amounts owed are paid. Authorisation for resale shall be automatically withdrawn in the event of receivership or liquidation.
5 - PRICE
The Products shall be invoiced, except where otherwise stipulated in writing, at the price rates in effect on the day the order was made. FIXATOR reserves the right to change its prices at any time. Any change of prices shall be communicated within a time limit of 30 days preceding its application. In any event, prices are still duty-free, ex-warehouse for sales in France and "EX WORKS" (in compliance with the Incoterms 2000 edition) for sales outside France, unpackaged products and net discount. Except where stipulated to the contrary, all costs and expenses relating to the transport, such as, in particular, customs and/or insurance borne by FIXATOR, shall be invoiced to the Customer as a surcharge.
6- TERMS – TIME LIMITS – METHODS OF PAYMENT
Except where stipulated to the contrary, the terms of payment are fixed as follows:
- either cash with the order or "pro forma", meaning the requirement for payment before the manufacture of the order, with the first order placed by the Customer, in circumstances where the risk of insolvency of the Customer might be increased or of an order less than €200;
- or 30% down payment upon ordering by Swift transfer and 70% upon delivery (as set out in article 8). For the term on delivery the deadline for payment is 30 days from the date of the invoice.
In France, invoices shall be payable by cheque, bill of exchange or transfer.
Invoices relating to international sales are payable, by a method chosen by FIXATOR in accordance with the CUSTOMER'S situation, either by irrevocable documentary credit and confirmed by a top tier French bank or by Swift transfer. Invoices shall be payable in Euro to FIXATOR'S headquarters.
No order may be cancelled without the FIXATOR’S consent.
Payment is recognised when the funds are made available to FIXATOR, that is to say the day when the amount is credited into one of the accounts of the latter. No discount may be accorded in the event of advance payment.
For any deterioration in the solvability of the Customer, FIXATOR shall have to right to demand payment in the form of cash with the order or at any time after the order has been placed, guarantees of payment or the issuing of a draft payable at sight.
7 - DELAY OR NON-PAYMENT
Without prejudice to the right to enforce the aforementioned retention of title clause, any invoices not paid on time shall occasion the payment of fines by the Customer set at one and a half times the legal interest rate. These fines are without prior notification and shall be automatically charged to the customer’s account. These fines accrue from the due date until payment. In the event of staggered payment, the non-payment of a single instalment shall result in the entire debt being due immediately.
Any delay in payment or any refusal to accept a bill of exchange, if presented, shall entail the lawful suspension of the orders in progress and shall entail payment being due or the implementation of security payments provided for in section 6.
In the event of failure to pay beyond fifteen days after non-response to formal notice, FIXATOR may terminate, if it deems fit , the corresponding sale, as well as all other orders, whether already delivered or during the delivery process, whether payable in arrears or not, without prejudice to any other damages.
FIXATOR shall thus have the option to take back the delivered Products and in order to calculate the discount corresponding to their true value at the time of their return, without prejudice to any damages and the right for FIXATOR to take any action that it deems appropriate.
The Customer must reimburse any expenses incurred by failure to pay on the due date entailing a return of the bill of exchange, unpaid cheques as well as by legal collection of due amounts, including the fees of law officials and agents, adjustment expenses and the cost of taking back the Products.
Without prejudice to the foregoing, the Customer must pay a surcharge, to cover administrative fees incurred from the aforementioned unpaid sums, an amount which shall be at least equal to 10% of the amount excluding tax of unpaid invoices.
8 – DELIVERY – TIME LIMITS
The delivery of Products shall take place by notice of readiness, delivered by any means, issued by the Customer to the premises or warehouses of FIXATOR, or any location indicated by the latter.
For "export" sales, unless otherwise agreed, the delivery of the Products shall be carried out "at the factory" "EX WORKS" (incompliance with the Incoterms 2000), in the premises or warehouses of FIXATOR.
FIXATOR shall be authorised to proceed with full or partial deliveries.
The deadlines for delivery are given as a guideline only and failure to adhere to them shall under no circumstances give rise to a cancellation of the order or payment of damages or fines of any kind whatsoever. In the event where the Customer does not withdraw the Products within 15 days following the notice of readiness, FIXATOR shall invoice the storage costs and/or terminate the corresponding sale and/or request payments set out in the contract, the delivery being deemed to have taken place.
9 – RISK TRANSFER
The aforementioned title clause notwithstanding, the risk transfer of FIXATOR products to the CUSTOMER shall take place at delivery (defined in article 8).
Moreover, in all cases, the Products are transported at the expense, risk and peril of the Customer whatever the method of transport or the methods of payment of the price of the transport and of the individual who requested the delivery.
The Customer shall take out an insurance policy, for the benefit of FIXATOR, which covers the risks associated with the Products upon the risk transfer.
10 – CONFORMITY - RECEIPT
The state, the conformity, absence of apparent defects and the number of Products must be verified by the Customer upon delivery (as set out in article 8). The costs and risks associated with the verification of the Products shall be the responsibility of the Customer.
Any reservation or contestation relating to products being out of stock, the non-conformity of the Products or any defects, must be made upon delivery (as set out in article 8). In the absence of these reservations, the Products are deemed acceptable and the liability of FIXATOR may not be reappraised on this basis.
It is the Customer’s responsibility to make, upon the arrival of the Products and in the presence of the transporter, any reservation or contestation relating to Products being out of stock and/or damage associated with the transport of Products listed on the delivery form and to confirm its reservations by registered letter with acknowledgement of receipt to be sent within 3 working days following reception in France and within 7 working days for other countries. The Customer undertakes to inform FIXATOR within the shortest time frame. In the event of delivery by FIXATOR, any claims or disputes by the Customer must be received by FIXATOR by registered letter with acknowledgement of receipt within three working days from the receipt of the products, in any event before they are used or resold. Claims concerning hidden defects must be received by FIXATOR in the same method and the same time limit mentioned above, from the time they are discovered.
Any return of Products shall only be accepted if it has been the subject of an express prior agreement by FIXATOR. In the event of Products being returned, the Products must be in perfect condition, and be redelivered in their original wrapping or packaging and must not have been taken apart and/or used. In any event, when a Product is returned with the approval of FIXATOR, the liability of FIXATOR shall be limited to the latter reimbursing the price of the Product or replacing the Product, at its discretion, excluding any damages arising from whatever circumstances.
11 - GUARANTEE
FIXATOR shall guarantee proper execution of Products and services, in accordance with technical stipulations and good engineering practice. FIXATOR undertakes, during a time period of twelve months from delivery (as set out in article 8), to repair or replace any Product deemed to be defective as a result of defects in material or manufacturing (after examination by its technical services) and to pay any freight charges and dispatch charges in mainland France. This guarantee is only valid for a Product sold as new and shall only benefit the first user.
This guarantee is limited to the repair or exchange Products deemed defective at FIXATOR’S discretion (within the conditions set out above), excluding any other repairs or costs including but not limited to: Payment of damages, travel expenses incurred by employees of FIXATOR to carry out repairs outside of mainland France, freight charges and shipping charges outside of France.
This guarantee shall not cover any apparent defects, faults, wear and tear or accidents caused by the Customer or a third party, which may occur as a result of normal use, negligence, incorrect use including even a temporary overload, by non-adherence to assembly instructions, insufficient maintenance and/or a handling accident, and more generally by any handling which does not adhere to the manufacturer’s written instructions or the regulations in effect. This guarantee also excludes events of force majeure as defined hereunder.
In any event, this guarantee does not apply to painting and surface coating, the effect of oxidation or variations of the applied voltage of electrical equipment.
Any repair works or changes carried out with regard to the Products by the Customer or by a third party shall automatically terminate the guarantee in its entirety, it shall be the same for cases where the parts installed by FIXATOR replaced with parts from somewhere else.
The repairs and/or replacements carried out within the confines of this guarantee shall under no circumstances prolong the duration of the guarantee.
In any case, the enactment of this guarantee is conditional upon presentation of the offending Product’s warranty certificate signed and dated by the dealer with the offending Product or alternatively upon presentation of the purchase invoice from a FIXATOR distributor. To take advantage of this guarantee, the Customer must notify FIXATOR by registered letter with acknowledgment of receipt within a limit 8 full days from the time the faults or defects were discovered, and provide any justification relating to their existence.
12 – LIABILITY
The liability of FIXATOR shall be strictly limited to the obligations set out in these conditions.
Subject to mandatory applicable legal provisions, FIXATOR’S liability shall be limited to the price of the service or the offending Product and does not extend to any damage suffered by the customer which may arise from faults attributable to FIXATOR within the context of this contract. FIXATOR shall not, under any circumstances, be held responsible, under this contract or civil extra contractual liability or otherwise, for any indirect, consequential or incidental loss or damages whatsoever, including but not limited to, trading loss, loss of commercial opportunity or shortfall in earnings, or any other financial or economic loss, even if foreseeable and resulting from negligence on the part of FIXATOR. Similarly, FIXATOR shall not be obliged to repair any damage arising from a wrongdoing on the part of the customer or a third party within the context of the contract.
13 – INTELLECTUAL PROPERTY
All technical documents delivered to the Customer shall remain the exclusive property of FIXATOR, who is the sole owner of the intellectual property rights associated with these documents and must be returned upon its request.
The Customer undertakes not to make use of these documents in a way likely to infringe FIXATOR’S industrial or intellectual property rights and undertakes not to disclose them to a third party.
14 - FORCE MAJEURE
FIXATOR reserves the right to terminate sales or services, without the customer having any right of recourse whatsoever, when the implementation of the contract is rendered impossible or difficult as a result of force majeure, exceptional circumstances or any other event likely to delay, prevent, or rendering economically exorbitant the fulfilment of FIXATOR’S obligations, including but not limited to: Embargos, shortage of raw material or unavailability of transport, strikes, lock-outs, terrorist acts, acts of State, changes to the regulations applicable to these general conditions or the Products, interrupting manufacture in FIXATOR'S factories and/or affecting FIXATOR’S suppliers and sub-contractors as well as any event which may not be overcome despite due care.
In the event of delays, deadlines shall be prolonged for the duration of the occurrence of force majeure.
If the force majeure renders the implementation of the order or contract impossible or if the delay arising from the force majeure exceeds three months, FIXATOR may terminate the order by registered letter with acknowledgement of receipt.
