General Terms and Conditions
1. GENERAL INFORMATION
The contractual relations between Celtech and its customers are governed exclusively and by decreasing order of precedence, by:
• The special conditions expressed in Celtech’s commercial and technical documents, particularly its offers, customer order forms, return receipts, order confirmations, delivery slips, invoices, catalogues, pricing rates and scales, etc.;
• The customer’s commercial and technical documents insofar as they are expressly accepted in writing by Celtech; and
• These general supply terms and conditions.
Where products or services supplied are incorporated as parts of a system, Celtech shall be deemed as not responsible for the management for the compete project in which its supplies are used and considered as acting as a subcontractor.
Celtech may not be held liable in the event of a malfunction in its equipment when used with a product that is not approved by Celtech and therefore voids the agreement when said equipment is ordered.
Any technical assistance service is provided by the provision of staff working under the technical responsibility of the project owner or the prime contractor.
Unless otherwise expressly stipulated, the shape, dimensions, weight, specifications, and the functionality of products or services indicated in the catalogues, brochures, price schedules, printed advertising materials, samples, etc., from Celtech are indicative in nature.
Celtech reserves the right to modify at any time certain specifications for its supplies, if these changes do not affect their main specifications and if Celtech replaces them with specifications ensuring supplies of equivalent performance and quality, even if it utilizes different resources.
Unless otherwise indicated, prices are net of taxes, ex-works, excluding shipping and packaging expenses, excluding services such as assembly, installation and commissioning.
Prices are established in view of the economic conditions in force on the day of the offer. Celtech reserves the right to modify them without notice, given the variability of such conditions.
The rates applied to product ranges or recurring services are the rates in force at the time of delivery.
The applicable VAT is the tax rate in force at the time of the operative event.
The quoted sales price of any system ordered may thereafter be revised by Celtech, at a minimum based on the conditions that its suppliers or subcontractors apply, unless stipulated otherwise.
For additional supplies, the prices and new time frames are specifically discussed between Celtech and the Customer. Under no circumstances may the conditions for the additional supplies impair the conditions for the main order.
4. PAYMENT CONDITIONS
Payment must be made on the due date on the invoice. Celtech does not offer discounts on the payment of its invoices.
In the case of payments in installments, the Customer’s non-payment of a single installment shall give Celtech the right to demand immediate payment of the balance of the price of the supply concerned and any amounts due for any other supplies even if they are not yet due. The same shall hold true in the case of sale, assignment, pledging or contribution to the business capital of another company.
In accordance with Article 33 of Resolution No. 86-1243 dated 12.01.1986, if the amounts due are paid after the payment date on the invoice, late interest shall be due. Such late interest shall be equal to one-and-a-half times the legal interest rate calculated on the amounts due net of taxes.
5. TITLE RETENTION
Until complete payment and actual receipt of their prices, Celtech remains the owner of the products and services it provides and shall have the option of reclaiming possession.
The Customer shall notify its sub-purchasers of this title retention clause.
In the case of legal redress, Celtech may claim the price not yet paid from sub-purchasers whose contact information the Customer shall provide.
6. TESTS AND INSPECTIONS
Unless otherwise stipulated, tests and inspections shall be conducted at the location where the products are manufactured.
The Customer is invited to attend such tests and inspections eight (8) days before their effective date. If the duly informed Customer does not show up, the tests and inspections are deemed valid and joint. Should the Customer request other tests and inspections and in other locations, such tests and inspections shall be carried out in the presence of both parties and at its own expense.
7. DELIVERY, TRANSPORT, TRANSFER OF RISK AND CLAIMS
The delivery and transfer of risks are deemed made when the products and/or services are made available to the Customer before unloading at the location indicated by Celtech. Unless otherwise stipulated, this availability is deemed accomplished when it has left the manufacturer’s plant, regardless of the practical arrangements used for that delivery.
The Customer’s use of products or systems requiring activation on the site where they will be used automatically implies their acceptance, the transfer of risks and the start of the contractual guarantee period, regardless of reserves also made by the Customer.
The delivery period begins as of the day the order is confirmed to Celtech, unless the execution of the order depends on the fulfillment of a prior condition like the payment of a deposit. In that case, the delivery period begins as of the fulfillment of that condition.
Unless otherwise stipulated, delivery periods are indicative in nature and are binding insofar as is possible: late deliveries beyond the stipulated time frame may under no circumstances justify canceling the order, nor give rise to penalties, unless specially set forth in the Agreement. Only special agreements can stipulate indemnities or penalties that may under no circumstances exceed 3% of the value of the products or services not yet delivered and that permanently settle any claims from the Customer due to the delay.
In any event, the indemnity may be applied only if the delay is due to Celtech, if the Customer serves a formal notice upon Celtech by registered mail with return receipt requested and if the delay caused real damage witnessed by both parties.
Delivery times are suspended and Celtech is exempt from all liability in the following cases:
• The information to be provided by the Customer is not given in due time;
• The payment conditions are not respected by the Customer;
• An event beyond Celtech’s control.
With respect to shipping by Celtech, the transport and packaging shall be done at the lowest costs, unless expressly requested by the Customer, and in any case, under the latter’s entire responsibility.
If there is no delivery receipt, signed by both parties, claims related to visible defects, the composition and quantity of the products delivered, or their nonconformity with the packing slip, must be made within eight (8) days from delivery of the products in order to be valid, without prejudice to provisions to be made with respect to the shipper, otherwise they shall be rejected.
They must be made before any conversion or rectification.
No product may be sent back to Celtech without its prior approval. Returns must, in that case, be made free of charge to the address indicated by it. No liability shall be assumed in the case of lost or damaged packages.
Celtech equipment is guaranteed against any manufacturing vices or defects for one year from the delivery date, for use 8 hours per day according to the recommendations in the service manual provided by Celtech. For any use over 8 hours per day, the warranty term shall be decreased in proportion to the use.
The equipment warranty provided by Celtech is limited to the warranty granted by the different manufacturers and suppliers.
If delivery is delayed for a cause independent of Celtech’s will, the warranty period shall begin as of the day when delivery should have been made.
The software warranty is for one year from the acceptance date against any functional defect or nonconformity with the detailed functional document. This warranty concerns the software received and shall be canceled by right of law in the case of intervention carried out without Celtech’s agreement or performed by staff not authorized by Celtech, whether it concerns the base software or the operating software.
The warranty is limited, at Celtech’s discretion, to the repair or replacement with equivalent components, for all components of the products affected by a defect that was not corrected prior to delivery.
It does not apply to replacement or repairs resulting from:
• Normal use of the products;
• Deterioration or accidents resulting from improper care or maintenance or misuse or excessive use of the products;
• Or if the cause of the deterioration of the products is unrelated to them and does not result from Celtech’s actions.
The warranty is excluded if the Customer modifies, embeds or repairs the original product.
The replaced part shall again become the property of Celtech.
Replacement of parts during the warranty period shall not extend the warranty period for the products.
Unless otherwise stipulated, used products and spare parts do not fall under the contractual warranty of this article.
To be able to remedy the defect identified, the Customer must grant to Celtech the time and facilities required, Celtech not being liable if the Customer refuses to grant them.
Normal upkeep of the system is not included in this warranty, and shall be the subject of a special agreement.
In any event, the mandatory legal warranty shall be applied in accordance with the regulations in force.
Interventions under the legal warranty shall be made during the working days and hours in force at Celtech, which are specifically 8:00 a.m. to 6:00 p.m. (CET) Monday through Friday.
9. INDUSTRIAL AND INTELLECTUAL PROPERTY
Unless otherwise stipulated, Celtech remains the owner of all information, concepts (ideas or strategies, methods, etc.), specifications, all documents (designs, plans, calculation notes, test reports, etc.), and all objects (models, samples, etc.), including patents and know-how, implemented within the provision of services for design, study, research and development, technical assistance, etc. The Customer must automatically return to Celtech all documents, objects, etc., defined in the above paragraph, after fulfillment of the Agreement.
Unless otherwise stipulated, Celtech remains the owner of the results obtained under the works with respect to design, study, research and development, etc. As a general rule, the Customer may use the products that are subject to the industrial and intellectual property rights belonging to Celtech (including those resulting from results of study, research, agreements, etc.) only after signing a license agreement, even if the usage right is granted for free.
The Customer shall immediately notify Celtech of any action claiming that Celtech products violate the industrial and intellectual property rights of a third party. Should this violation be proved, Celtech agrees at its choice and excluding any other repairs, to obtain a usage right for the disputed component or to modify the product to render it incontestable or to take back the product and refund its price.
In the event of action from a third party caused in the Customer’s transfer to Celtech of information, documents, know-how, or in the Customer’s modification of the products after their delivery or in their use with products or services provided by other third parties, Celtech disclaims all liability and the Customer shall defend, indemnify and hold harmless Celtech at its own expense.
The Customer agrees to keep confidential all information and all commercial and technical documents, as well as the objects entrusted to it by Celtech, and is prohibited from communicating and/or sending them in any manner whatsoever to third parties, without Celtech’s prior written authorization.
By express agreement, Celtech shall not be liable in the case of an event beyond its control and in particular following a case of force majeure or a fortuitous event.
Celtech’s liability is strictly limited to the obligations expressly stipulated in the Agreement. All penalties and indemnities set forth therein are lump-sum monetary damages, being liquidated exclusive of any other sanction or indemnification.
With the exception of any gross misconduct by Celtech and the repair for bodily injuries, Celtech’s liability shall be limited, taking all causes into account, to an amount that, if there is no different stipulation in the Agreement, shall be capped at the value of the contractual amount of the supply or service giving rise to the claim.
Under no circumstances shall Celtech be required to indemnify intangible and/or indirect damages which the Customer may invoke under a claim; as a consequence, it may not be required to indemnify production, operating and profit losses or, more generally, any compensable damage other than bodily or tangible damage.
The Customer warrants that it will refrain from any legal action unilaterally, through its insurers or through contractually bound third parties, against Celtech or its insurers beyond the aforementioned limits and for the aforementioned exclusions.
As of the delivery of equipment, the Customer must insure it against all risks, particularly in regard to damage and/or loss.
The Customer must also take out appropriate insurance covering any damages resulting from its professional, manufacturer’s and/or contractor’s civil liability.
13. EXPORT AUTHORIZATIONS
Unless expressly stipulated otherwise, Celtech shall bear no responsibility for obtaining for the Customer, prior to the delivery of products or services, the licenses and/or authorizations required by a regulation in the Customer’s country of origin or in the originating or destination country, particularly in the case of customs control at the final destination upon a re-export by the Customer.
The Customer agrees to obtain the required authorizations, to show proof of them if applicable and to provide to Celtech all information on the intermediaries and successive users of these products or services and to transfer, to them, this duty to inform.
In the case of provisions of products, services or systems, comprised fully or partially of imported components, the Customer is deemed to bear the burden of specifying to Celtech the mandatory regulations, particularly for standardization, hygiene and safety.
Celtech may freely assign and/or subcontract all or part of its rights and obligations resulting from a supply agreement for products and/or services with the Customer to a third party of its choice.
The Customer shall notify Celtech by registered mail with return receipt requested before any potential assignment of its rights and obligations resulting from a supply agreement for products and/or services with Celtech and shall warrant Celtech against any defects and/or claims from said assignee.
15. TERMINATION OF THE AGREEMENT AND ORDER CANCELLATION
Noncompliance with any one of the Customer’s obligations authorizes Celtech to cancel automatically and without legal technicalities, in full or in part the supply agreement concerned if the Customer, regardless of any written notice by registered mail with return receipt requested from Celtech, does not remedy such noncompliance within eight (8) days from its acceptance, and to take back the products that have already been delivered, to request monetary damages as compensation for the damage sustained, and to keep, to that effect, at a minimum the amounts already paid or, if no deposit was paid, to bill as an indemnity a minimum of 10% of the order’s total value.
This is also applicable with respect to full or partial cancellation of the order as unilaterally decided by the Customer.
Any dispute in regard to the formation, execution and cessation of the contractual obligations that is not resolved through an amicable settlement or the execution of an arbitration agreement shall be subject to the materially competent jurisdiction in the geographical location of Celtech’s head office, regardless of the supply conditions and mode of payment accepted, regardless of the introduction of third parties. In the event of a dispute, the Commercial Court of Quimper shall have exclusive jurisdiction.