General Terms of Sale and Delivery

 Home > General Terms of Sale and Delivery

GENERAL TERMS OF SALE AND DELIVERY                                             Download

 

Article 1. GENERAL PROVISIONS

1.1 - The General Terms of Sale and Delivery (“GTSD”) define the rights and obligations of Aubert&Duval,UKAD, Erasteel SAS, Erasteel Champagnole SAS, Erasteel Kloster AB, Erasteel Stubs Ltd and MetalliedPowder Solutions (the “Vendor”) and of its customers (the “Buyer”), and apply to all contracts or orders(hereafter “Contract” or “Order”) between the Vendor and a Buyer, (the “Parties”), for the sale of the Vendor’sproducts and/or services (the “Products”), subject to particular amendments to the GTSD specifically negotiatedand agreed upon in writing by the Parties within the framework of a specific Order. Unless so amended, theGTSD will govern the relationship between the Parties as to all matters within the scope of an Order. Thus,inconsistent provisions contained in a Buyer’s document – such as Requests for Quote, orders, websites, etc. -purporting to define general or particular terms of purchase or sale shall not be construed to amend, modify,supplement or supplant the GTSD, as any such inconsistent provision or term shall be deemed inapplicable toany Order by a Buyer for any of the Vendor’s Products. In short, all such conflicts with such Buyer’sdocuments will be governed and resolved in accordance to the GTSD.

Article 2. THE CONTRACT: OFFER AND ACCEPTANCE

2.1 - The Buyer is entirely responsible for matching its Order with the technical manual or specificationdescribing a Product, its components, and all other specifications essential to the Products’ manufacture andfuture intended utilization. These specifications include all standard operating modes and relateddocumentation, in accordance with the Vendor’s Quality System.

2.2 - Any offer made by the Vendor is only bindable as long as all the regulations of the various countriesinvolved in the transaction are duly met; this is especially the case of authorizations for the export of warmaterials or for dual-use items. When the offer is not binding, and even if it is not specified as such in the offer,it should be considered as a budgetary offer, with the sole purpose of allowing the Buyer to develop itspurchasing strategy.

2.3 - The pricing conditions specified in the Vendor’s Offer are only valid within thirty (30) calendar days fromthe date of its issuance.

2.4 The leadtimes (manufacturing, availability, delivery) in the Offer are purely indicative and must beconfirmed when the order is acknowledged.

2.5 Payment means and terms as specified in the offer can be modified at time of order, taking into account theevolution of the Buyer’s financial situation, as well as of his debts and overdues in the Vendor’s books. Inparticular a partial or total advance payment can be demanded by the Vendor.

2.6 - An Offer is deemed made by the Vendor for the supply of an indivisible whole of various Productsdetailed therein.

2.7 – The Vendor reserves the right to modify its manufacturing process without preliminary notice, as long asall the characteristics of the Product in the offer are maintained.

2.8 - An Order binds the Vendor only if it accords with the Vendor’s latest Offer.

2.9 In case the Buyer must supply goods such as materials or tools, no delivery to the Vendor’s premises can bedone before the latter has acknowledged the order and formally accepted the delivery.

Article 3. JURISDICTION - APPLICABLE LAW

3.1 - Any party to this contract shall have the right to have recourse to and shall be bound by the pre-arbitralreferee procedure of the International Chamber of Commerce in accordance with its Rules for a Pre-Arbitral Referee Procedure.

3.2. All disputes arising out of or in connection with the present contract shall be finally settled in Paris andconducted in English under the Rules of Arbitration of the International Chamber of Commerce by threearbitrators appointed in accordance with the said Rules of Arbitration, the law of procedure being French lawexcluding provisions of French private international law.

Article 4. DELIVERY PERIODS

4.1 - Delivery periods do not begin to run before the Vendor accepts (“Acceptance”) an Order. A deliveryperiod begins to run as of the date when the last of the following occurs:- Receipt by the Vendor of all information necessary for execution of an Order; and/or- Receipt of an Order’s installment payment; and/or- For Products or parts thereof imported by the Vendor, notification of receipt by the Vendor of any requiredimport and/or export license; and/or- For hire work, receipt by the Vendor of the material to be processed, in conformity with agreed quantity andspecifications

4.2 - In case the Buyer must approve a production schedule, a delivery period does not begin to run until theVendor receives notice of such approval from the Buyer. A leadtime for delivery or availability on a given daywill be considered as met as long as the Vendor delivers or makes available the Products at a date between the5th working day (included) before the due date and the 3rd day (included) following that date.

4.3 - If the Buyer is unable to take physical custody of the Products on the agreed upon delivery date, theVendor will have the right to store the Products at the Buyer’s expense, without modifying the terms of paymentdefined in Article 8 below. Storage expenses will equal twice the interest rate Euribor per month, ascompensation for late payments and for safeguarding the Products.

Article 5. PLACE OF DELIVERY AND ASSUMPTION OF RISKS

5.1 - When an Order is accepted, the Vendor will deliver the Products “FCA (Free Carrier) the Vendor’spremises,”(International Chamber of Commerce, Incoterms 2010).

5.2 - In the absence of instructions as to the place of delivery, or in case of impossibility of dispatching orpicking up the Products for reasons independent of the Vendor’s will, delivery will be deemed to occur uponnotice of the Product’s availability, the Products thereupon being at the Buyer’s disposal in the Vendor’sbuildings, with all risks of loss or damage bearing on the Buyer, and the Vendor reserving the possibility ofinvoicing storage expenses. The Vendor being then deemed having met his obligations, he will issue thecorresponding invoice, the payment term starting from the invoice date.

5.3 Unless otherwise requested by the Buyer, the Vendor will select the means of transport considered mostconvenient and economically sound for dispatching the Products on behalf of the Buyer, without any kind ofresponsibility being incurred by the Vendor as a result thereof.

5.4 In case of hire work the resulting massive scrap is shipped back to the Buyer with the final product, orseparately if the volume justifies.

Article 6. DELAY OF DELIVERY

6.1 - Delivery dates may be extended for any cause beyond the Vendor’s control making it impossible to meetcontractual performance deadlines. Examples of such causes beyond the Vendor’s control include events suchas labor strikes, embargoes, accidental injuries, tool malfunctions, riots, wars, fires, natural disasters, and otherevents of a similar nature such as bad weather, supply difficulties, accidental production stoppages,unforeseeable market trends, and so on. It is expressly agreed that no such force majeure event beyond eitherParty’s control may relieve the Buyer from its primary obligation to make timely payments to the Vendor in accordance with the Contract.

6.2 - The phrase “delay penalty”, or other similar phrase, shall mean the compensation owed by the Vendor asliquidated damages for harm to the Buyer caused by a delay of delivery. If the Parties agree upon a delaypenalties clause, such clause shall not apply to the related and entire Order but only to the Products affected by adelivery delay.

6.3 - A delay penalty clause included in an Order shall always apply: only to a delay exclusively attributable tothe Vendor or its subcontractors; only after prior written notice by the Buyer; and only after the expiration of afifteen (15) calendar days grace period, beyond the contractual delivery date, within which such a delaypenalties clause shall be inapplicable. The maximum of any such penalty for delayed delivery of Products shallnever exceed five percent (5%) of said Products’ Order price, before taxes. Moreover, any such delay penaltyclauses shall always be deemed Buyer’s sole and exclusive remedy in respect of said delay and to exclude anyother compensation of whatsoever kind and on whatsoever legal ground.

6.4 - In no circumstance shall a delay of delivery be deemed to justify the termination or cancellation of anOrder.

Article 7. PRICE

7.1 - Prices are always stated as net amounts, excluding taxes and any other charge, for unpacked Products FCA(Incoterms 2010) the Vendor’s premises. All costs of packing, handling, shipping, (whether surface, maritime orair), placing on board, insuring, etc., will be invoiced in addition. The Buyer will pay for all rights, taxes andother official charges, as well as the duties and expenses for customs formalities for export and import ofProducts and, if necessary, transit abroad. The Buyer will advance to the Vendor whatever part of said costs,charges or expenses the latter may be required to pay, so that the amount paid to and retained by the Vendor isthe price net of taxes. The taxes due at the time of invoicing are invoiced and payable in full at the time ofdelivery. To take advantage of provisions suspending the payment of taxes, the Buyer may have to provide theVendor with the export or exoneration documents officially required at the time it places its Order. Latesubmission of said documents shall not be used by the Buyer to withhold payment of invoices in accordancewith the Contract, including taxes, whether in whole or in part. Refund of exonerated taxes and accountingrevisions will occur only after receipt of such documents.

7.2 - The Buyer is responsible for paying any increase in the cost of rights, taxes, levies and stamps occurringafter placement of the Order, even if said change purports to discharge in whole or in part the Buyer of anyMore generally and notwithstanding anything to the contrary, the Order Price and/or the schedule of workincluded in the Order shall be adjusted as a result of an increase or decrease in costs or / and of extension orreduction of the time schedule due to the execution of any new law or regulation or of any change in existinglaws and regulations which occur after the bid due date or change in the interpretation of any applicable law orregulation of any governmental or other authority having jurisdiction.More generally and notwithstanding anything to the contrary, the Order Price and/or the schedule of workincluded in the Order shall be adjusted as a result of an increase or decrease in costs or / and of extension orreduction of the time schedule due to the execution of any new law or regulation or of any change in existinglaws and regulations which occur after the bid due date or change in the interpretation of any applicable law orregulation of any governmental or other authority having jurisdiction.

7.3 - Prices are subject to adjustment by the Vendor so as to take into account unforeseeable variations, forinstance in the costs of materials, energy and labor occurring between the date of the last Offer and the invoicedate. The Buyer hereby recognizes and acknowledges this fact, and that such price adjustments are valid withoutits prior agreement. Nevertheless and insofar as possible, the Vendor will, within a reasonable time, inform theBuyer of its intent to make such adjustments before they become effective, giving the Buyer all reasonableinformation in its possession concerning the need for, and methods used, in computing them.

7.4 - Nevertheless, in the event of supervening events, unforeseeable or unforeseen by the Parties on the day ofthe last Offer or of the Order, which upset the economic bases of the Contract to the Vendor’s prejudice, themost diligent Party will without delay make a formal request for revision of Order(s) affected by said events andof such a nature that the Parties will in good faith agree as soon as possible to adjust the price or the schedule ofdelivery or, if necessary, the elements in the formula for indexing the price, in order to put the Parties in aposition of equilibrium similar to that existing when they entered into their Contract. If the Parties are unable toreach a friendly agreement within thirty (30) calendar days following a request to adapt the price or economic terms of the Contract, each Party will have the right to terminate the Contract, by registered letter giving seven(7) days notice of said termination, without compensation to either Party other than sums due to the Vendor inaccordance with Article 18.4 below.

Article 8. PAYMENT

8.1 - Invoices are payable net, no later than thirty (30) days of the invoice issuance date. When a different termis agreed upon, the basis for calculation is always the invoice date. All due dates to be understood as the date atwhich the Vendor’s account has been duly credited in value with the whole of the invoice amount.The discountrate for prepayment shall in no case exceed 0.08 % per month.

8.2 - The Vendor reserves the possibility of assigning its receivables to a collection or factoring agency.

8.3 – Within the framework of financing its activity, the Vendor reserves the option of assigning commercialreceivables to an ad hoc institution (e.g. bank, financial institution…) without any modification of currentdealings or any change concerning the management or the achievement of the Buyer orders. The settling ofaforementioned receivables is made whether through the Vendor or directly through the ad hoc institution to theextent the Buyer will be regularly notified by the ad hoc institution.

8.4 - The Vendor reserves the right to demand payment by check upon delivery of the Products if the Buyer’saccount is in arrears or if the Buyer presents a risk of insolvency.

8.5 - Non-payment of a fraction of the price when due, or non-observance of any payment’s due date, shalltrigger the Vendor’s right to demand immediate payment of all sums then still due, (bills of exchange included),and to retain installments held by the Vendor as well as tools and other items in the Vendor’s custody, until fullpayment of all sums due.

8.6 - As compensation for the prejudice suffered as a result of said late payment(s), the Buyer will pay theVendor without delay a sum equal to the annual rate of interest of 15% applied to the entire outstanding unpaidbalance, such sum to be due upon the day following the invoice date of the late payment in question, withoutnecessity of a reminder. In addition to this sum, the Buyer will reimburse the Vendor of thecorresponding collection expenses, with a minimum fixed compensation of 40€ (or its equivalent in the invoicedcurrency) per unpaid invoice.

8.7 - Notwithstanding resort to the sanction provided for in 8.6 above, non-payment of an invoice when due,whether partial or in full and for whatever reason, entitles the Vendor to cease delivering Products and/or to stopall work, without notice or other formality. Such a decision, a matter of entitlement attributable to the Buyer,entails the right retroactively to cancel existing contracts, without affecting the Vendor’s right to compensation,or possible damages together with interest.

Article 9. RESERVATION OF TITLE

9.1 - The transfer of title to delivered Products shall occur only after the Vendor receives full payment of theprice and auxiliary charges, in accordance with French Commercial Law L624-16).. This reservation of title does not prevent transfer to the Buyer, upon the Products’ delivery, of all risks of lossand deterioration, as well as of damage they might occasion.

9.2 - If the Buyer fails to make a payment when due, the Vendor may reclaim specific Products, or all productsof the same kind and quality held by the Buyer. In case the Vendor repossesses said Products, the Buyer will becredited with their price after deducting, on one hand, the costs of repossession and, on the other, their possibleloss of value between the Contract and repossession dates.

9.3 - Before acquiring title to the Products, the Buyer may neither grant any security interest therein to a thirdparty, nor transform or resell them, without the Vendor’s prior written consent.

9.4 - The Buyer shall assist the Vendor in any action the latter may be required to take in order to protect itsrights of ownership. The Buyer commits itself to ensuring the Products as of their delivery, with the Vendor asbeneficiary, against all risks that they might encounter or cause. The Buyer commits itself, under all circumstances, to maintaining delivered Products in such a manner as to avoid any confusion about theirownership by the Vendor.

Article 10. GUARANTEE AND CIVIL LIABILITY

10.1 - The Vendor’s responsibility is limited to delivering Products in conformity with the plans and technicalmanual agreed to by the Parties.

10.2 - The Vendor’s responsibility shall in no case extend either to design or definition of components of theProducts, as the Buyer shall, in any event, bear the entire responsibility for the industrial result of the Products,including responsibility for errors or omissions in technical specifications, criteria or standards. Unlessexpressly agreed otherwise in writing, all responsibility for choice of Products is incumbent upon the Buyer.

10.3 In case of hire work, as the Vendor is not responsible for the supply of the material to be processed, itsresponsibility cannot be committed in case of health defect of the final product, unless the Buyer demonstratesthat the defect originates from the Vendor’s operating process.

10.4 - In the event a Product is found defective, the Vendor shall be responsible only with for repair orreplacement of that specific Product, pure and simple, by implementing logistical means as to which it shall bethe sole judge, without any other form of recourse or compensation against the Vendor. Excluded from allguarantees are defects or damages resulting from storage or use of Products by the Buyer or its customers underconditions either anomalous or not in conformity with accepted norms. Any repair of a Product, including onefound defective, done without the Vendor’s prior consent, shall result in loss of all guarantees, as well as of anyright of recourse against the Vendor. The guarantees defined above cover only repair or replacement ofdelivered Products found defective by the Vendor after return of said Products by the Buyer, and all charges fortransport, packing, assembly, disassembly or other ancillary costs remain the Buyer’s burden. The Vendor willnot accept return of any Product without its prior written authorization.

10.5 - Under any hypothesis, the Vendor’s maximum civil liability as to any given Order, for damage caused bydelivered Products, is expressly limited to compensation not exceeding eight (8) times the invoiced net amountof such Products’ materials, or in the case of Products which consist in provision of services, two (2) times suchProducts’ invoiced net amount, the Buyer renouncing on its own account as well as that of its insurers any rightto compensation beyond such sum, which is accepted as the financial limit of the Vendor’s responsibility. In theevent of periodic, partial deliveries of an Order, this limit of responsibility and financial compensation isunderstood to apply per calendar year, and that its stipulation is for the benefit of the Vendor, its managers,employees and guarantors, as well as its respective insurers and beneficiaries. In no case may the Vendor beheld responsible for indirect or consequential damage ultimately suffered by the Buyer, including but notlimited to loss of use, loss of product, loss of profit or business interruption.

10.6 - The Vendor is hereby and expressly exonerated from all contractual liability resulting from the Buyer’sfailure to timely provide all items the Vendor needs for proper execution of the Order, or from the Buyerproviding the wrong items to the Vendor, thereby preventing execution of the Order as agreed. In such a case,the Parties will meet and discuss the terms of an addendum to the Order intended to rectify the situation, bearingin mind the need to modify the Order’s price and/or delivery dates.

10.7 -Tthe amount for repairs which the Buyer or any other person may demand from the Vendor for Productsused in the nuclear field, (in zone irradiated), which are found to be defective after decontamination, will becalculated by excluding indirect losses, particularly commercial and financial losses, all expenses ofdecontamination, the added expenses for work in an irradiated zone, or prolongation of delivery dates owing tothe nature of such work. The Buyer shall, in the final customer’s stead, take charge of these expenses. Theallegedly defective parts will be decontaminated before their return to the Vendor, the Buyer taking charge ofthe decontamination expenses, as aforesaid.

10.8 - The Vendor shall in no event be responsible to anyone for nuclear damage, wherever it may occur, andwhether to persons or to material objects, allegedly caused by defective Products originating from the Vendor.The Buyer will take all necessary measures, within the legislative framework of the country where the Productsmay be installed, to ensure that no recourse may be pursued against the Vendor for any such damage. In theevent such recourse is sought against the Vendor, the Buyer will hold the Vendor harmless, substituting itselffor the Vendor to pay any sum, of whatever size, comprising principal together with interests and costs.

Article 11. QUANTITY – WEIGHT

11.1 - Except in case of agreement that price is based upon the number of articles, Products are sold based onweight and will be invoiced accordingly, regardless of quantity. No other method of measuring quantity shall beasserted by the Buyer or recognized by the Vendor. In case of material conversion, the price is based on theincoming weight of material to be processed.

11.2 - Whether delivery be measured in terms of weight, of length, or number of articles in bulk, the Vendorreserves the right to deliver a quantity reasonably deviating from what the Order specifies, such variance not toexceed a tolerance margin of approximately ten percent (10%).

Article 12. REACH

12.1 - Pursuant to REACH Regulation no.1907/2006, the Buyer undertakes to communicate to the Vendor, inwriting, all the Utilizations contemplated by the Buyer itself, identified by its own clients or, as the case may be,by Downstream Users. To this end, the Buyer shall provide at least a brief general description of eachutilization, so as to contribute to the preparation of any Registration application and Safety Data Sheets. Shouldthe Vendor fail to do so, the Vendor shall not be held liable, on any grounds whatsoever, for not taking intoaccount a given Utilization in view of such Registration or of the preparation of Safety Data Sheets.

12.2 - The Vendor handles, or will handle, the process of Pre-registering and/or Registering the Substancescontained in or composing the Product it produces or the goods it imports with the European ChemicalsAgency, taking into account the Utilizations identified by the Buyer and communicated to the Vendor.

12.3 - The Vendor shall make its best effort to ensure, within the limit of its REACH obligations, that theSubstances contained in or composing the Product produced or the goods imported by its own suppliers are orwill be Pre-registered and/or Registered by its own suppliers within the required time periods, and taking intoaccount the Utilizations identified by the Buyer. In any event, the Buyer may not, in any event, seek to hold theVendor liable for any failure by its suppliers to fulfill their obligations under the REACH regulation which maycause the Vendor to be temporarily or permanently incapable of supplying the Products.

12.4 - If a Substance contained in or composing the Product sold becomes subsequently subject to anAuthorization or Restriction, the Vendor shall so inform the Buyer. The Vendor and the Buyer shall cometogether as quickly as possible to analyze the availability of replacement solutions, to examine any risks theyentail as well as their technical and economic feasibility, and to contemplate what future consequences thisshould have on the contract (whether to continue its performance, whether the client will be able to continue theUtilization). In any event, the inability to continue performing the contract, whether temporarily or permanently,due to a Restriction or absence of Authorization of the Substances contained in or composing the Productproduced or the goods imported by the Vendor or by one of its own suppliers, shall be deemed an event of forcemajeure.

12.5 - The capitalized terms referred to above shall have the meaning ascribed to them by REACH or by thepresent GTSD.

Article 13. QUALITY - RECEIPT - RETURN – COMPLAINT

13.1 - The Buyer is considered to have accepted the Products within a period of 15 days as from the date of thephysical delivery. Following this deadline, in conformity with Article 1642 of the French Civil Code, the Buyeris considered to have accepted any possible visible defects affecting the Product. In any case no claim can beaccepted by the Vendor beyond two (2) years after the date of the physical delivery

13.2 - Any complaint must be addressed to the Vendor’s sales manager in charge of the Buyer’s Order, or to theperson in charge of quality control at the factory that delivered the Products. Any Products returned by theBuyer must be addressed to the Vendor’s factory that delivered the Products. The Buyer shall bear all risksconcerning the return of any Products until it finally arrives in the Vendor’s factory.

13.3 - Any claimed defect must be established by evidence. If the Products are found to be defective, theVendor reserves the right to cure said defect(s) by any one of the three following modes: (a) by replacing the defective Products in the Buyer’s premises; (b) by repairing the defective Products in the Vendor’s factories; or(c) by refunding the price invoiced and paid by the Buyer for the defective Products. If mode (b) or (c) ischosen, the replaced or refunded Products will, at the Vendor’s discretion, once again become its property.

13.4. The Vendor shall not be liable for any claims for less than one percent (1%) of total delivery quantity or10Kg minimum weight, whichever is the greater.

Article 14. TOOLS – PROTOTYPES

14.1 - If items are to be forged or stamped, the Buyer’s participation in financing the expenses of design,creation, manufacture and development of the needed tools will be the subject of a separate preliminary order.

14.2 - The financial participation described in 14.1 above shall give the Buyer only the right to have such toolsused by the Vendor in its own factories as needed for execution of the Buyer’s Order. The Vendor keeps fullownership of these tools.

14.3 - Thus, tools created to meet the Buyer’s needs shall in all circumstances physically remain inalienable inthe Vendor’s premises, and may neither be seized by, nor transferred to, the Buyer. The Vendor may, withoutprior notice, convert these tools to scrap metal if more than two years elapse without receiving a new Order ofsufficient importance to justify maintaining their setup.

14.4 - The Vendor makes no promise that tools provided by the Buyer will be used for any specific duration.Moreover, the Buyer shall bear the expenses of modifying said tools as the Vendor may deem necessary forproper execution of the Order. The Buyer will replace the tools at the Vendor's request whenever necessary.

14.5 - The Buyer will hold the Vendor harmless against the consequences of any legal action alleging thatmanufacture of an item infringes a private right, such as one based on patent, copyright or trademark.

14.6 - Unless expressly agreed otherwise by the Parties, neither the receipt of payments by the Vendor, nor thedelivery of tools, or prototypes, or information relating thereto, by the Vendor to the Buyer, shall be deemed toaffect the Vendor’s rights of intellectual property. In this regard, the Vendor shall not be deemed to haverelinquished its right to bring counterfeiting and/or infringement proceedings against the Buyer, its customersand its subcontractors, for keeping, repairing, or using tools, prototypes and information concerning theProducts delivered by the Vendor to the Buyer in accordance with the Order.

14.7 - The Buyer commits itself to take all measures needed to prevent infringement, whether directly or bythird parties, of the Vendor’s intellectual property rights in the tools, prototypes and information relatingthereto, and to affix such markings as may be specified by the Vendor for its tools, prototypes, samples anddocuments, to the exclusion of any other marking including its own.

Article 15. RIGHT OF ACCESS TO THE VENDOR’S PREMISES

15.1 - The Buyer may visit the Vendor’s premises only upon terms set by the Vendor. No visit shall be allowedwithout a prior written request by the Buyer addressed to the Vendor giving at least one month’s advance noticeof such a visit.

15.2 - Any such visit may be made only to verify proper execution of the Buyer’s Order, as limited by the needto protect the Vendor’s know-how and trade secrets as well as the rights of third parties. The costs to the Vendorfor such visits shall not exceed what is reasonable within the framework of the Parties’ Contract.

Article 16. SUBCONTRACTING

The Vendor reserves the right to entrust the whole or any part of an Order to one or more subcontractors whichit may select at its discretion.

Article 17. CONFIDENTIALITY AND INTELLECTUAL PROPERTY

17.1 - All documents provided by the Vendor such as offers, quality plans, schedule of conditions, qualificationdossiers, and all documents produced by the Vendor remain the Vendor’s intellectual property and may not betransmitted to, or otherwise shared with, third parties without the Vendor prior written consent.

17.2 - All data contained in the certificates of control and conformity, delivered separately, are providedexclusively to establish the conformity of the delivered Products. Any result of statistical analysis, whoever maybe its author, based upon said data, remains the Vendor‘s property and may not be transmitted to a third party.

17.3 - The Buyer shall indemnify and hold the Vendor harmless against all claims of third parties concerningintellectual property rights to components the Buyer entrusts to the Vendor, or that the Vendor uses at theBuyer’s request, within the framework of the Order, and commits itself to indemnifying the Vendor and takingresponsibility for all consequences of such claims, including legal expenses and financial judgments. Theseguarantees, and their resulting obligations upon the Buyer, will continue in effect as long as the deliveredProducts continue to be used commercially or industrially.

17.4 - Unless expressly agreed otherwise by the Parties, the Vendor shall have and retain exclusive intellectualproperty rights to all “Results”, (as hereafter defined), obtained by the Vendor prior to as well as duringexecution of the Order. The term “Results” includes, without limitation, results of studies, developments, andservices obtained or provided in accordance with execution of the Order, such as all inventions, documents,software, materials (ingots, samples, outlines, prototypes, etc.), information, data and specific know-how,whether or not technical. The Buyer commits itself to taking all measures needed to prevent infringement,whether directly or by third parties, of the Vendor’s intellectual property rights in said Results, and to affix suchmarkings as may be specified by the Vendor upon such documents or materials comprising or included in saidResults, to the exclusion of any other marking including its own.

17.5 - Unless expressly agreed otherwise by the Parties, delivery of Products shall not be deemed to convey tothe Buyer any license to the Vendor’s intellectual property rights. The Buyer commits itself to take all measuresneeded to prevent infringement, whether directly or by third parties, of the Vendor’s intellectual property rights,and to affix such markings as may be specified by the Vendor upon documents and materials which refer to theVendor’s property, to the exclusion of any other marking including its own.

Article 18. CANCELLATION – TERMINATION

18.1 - A simple delay in delivery, nonobservance of a procedure, or any cause beyond the Vendor’s reasonablecontrol, such as one attributable to a third party, which makes it impossible for the Vendor to fulfill itscontractual obligations, shall be deemed to justify neither a request for any sort of compensation, nor thecancellation or termination of all or part of an Order by the Buyer.

18.2 - The Vendor shall have the right to terminate the Contract if the Buyer is in bankruptcy or liquidationproceedings, or in the event a significant change occurs in the Buyer’s legal circumstances undermining itssolvency. However, termination of a Contract shall not reduce the Buyer’s debts to the Vendor.

18.3 - If the Buyer, for its own reasons, unilaterally cancels or terminates all or part of an Order, it shallimmediately pay to the Vendor financial compensation in an amount, as shown in the table below, whichdepends upon the date of such cancellation or termination relative to the delivery date specified in the Order.Said compensation is intended to cover damages related to production capacity reserved for the Order, theconsequent loss of commercial opportunities, and administrative costs.

Table of Financial Compensation:

 

Delivery date of the Order (in weeks)

 

<8

8 to <16

16 to <20

20 to <24

24 and >

Period of cancellation:
(Running as of the date of the Order’s receipt)

< 2 weeks

20%

15%

10%

10%

10%

≥ 2 to < 4 weeks

75%

75%

40%

35%

35%

≥ 4 to < 8 weeks

85%

85%

75%

55%

45%

≥ 8 to < 16 weeks

 

 

85%

75%

60%

≥ 16 to < 20 weeks

 

 

 

85%

75%

≥ 20 to < 24 weeks

 

 

 

 

85%

 

 

18.4 - Moreover, whatever may be the cause of termination of one or more Order(s), whether or not attributableto the Vendor, the Buyer is obligated to take delivery and pay for Products manufactured and stored, or in thecourse of manufacture, as of the date of termination and, upon presentation of supporting documents, withoutdelay, to refund, compensate and indemnify the Vendor for any sums the latter is eventually required to pay itssuppliers or subcontractors for any such termination. Any payment received by the Vendor for any suchterminated Order, such as an installment, remains the Vendor’s property and may under no circumstance berestituted to the Buyer or viewed as compensation by the latter.

 

 

Aubert&Duval General Terms of Sales and Delivery – 1st of March 2015 © Aubert&Duval 2015