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General Sales Conditions

GENERAL SALES CONDITIONS

1. FOREWORD 

1.1 The objective of the present General Sales Conditions, (hereinafter called the GSC), is to define the conditions under which PROTEM will supply the BUYER, also called the customer, with the goods and/or services, defined in the order appended to the present document.

1.2 Together with any possible special clauses the GSC constitute the only clauses applicable to contracts of sales and/or services concluded between PROTEM and its buyers, notably concerning goods (catalogue products, special products, kits, spare parts, etc.) and/or services (studies, services of any type, etc.).

1.3 Therefore, unless otherwise specified by PROTEM, all orders include ipso jure the buyer’s unreserved acceptance of the present general sales conditions and the waiver of any clauses contained in their own general purchase conditions contrary to these present conditions.

2. ORDERS 

2.1 Orders only become final when they are transmitted to PROTEM in writing and when they are followed by PROTEM’s written acceptance thereof / PROTEM's acknowledgment of order.

2.2 PROTEM reserves the right to request any guarantee that it may consider necessary and to suspend any order, even after acceptance, until it has obtained complete satisfaction concerning this request.PROTEM reserves the right to stipulate that execution of an order be subject to payment of one or more down-payments, for which compliance with the terms of payment is an essential condition. Therefore, any non-compliance with any one of these terms is liable to lead to a delay in executing the order, even its cancellation, without the BUYER being able to exercise any rights whatsoever enforcing completion of the order. Down-payments already made will remain the property of PROTEM, which also reserves the right to use all legal resources available for obtaining total payment of all outstanding sums. The BUYER will have no rights of appeal.

2.3 For orders placed by electronic mail, order information records supplied by PROTEM will be considered valid by the parties in the event of any dispute on any of the details contained in the order, which the BUYER accepts unreservedly.

2.4 Orders for standard products: Technical characteristics, dimensions, weight, etc, as defined in the catalogues, product datasheets, advertising documents, etc are for information purposes only and are not contractual. Will be considered an ipso jure condition of avoidance of contract, any observation made by PROTEM of any technical or other incompatibility in the terms of the order, notably in the description provided for the order in question. In any such situation, PROTEM will have the possibility of cancelling the order or modifying a part of its contents. The constructor may not be held liable in any way, should any such modifications not have been mentioned by PROTEM in its order acceptance or should the buyer maintain the terms and specifications of its order.

2.5 Once received by PROTEM no order can be cancelled, and the Buyer will be liable for the full value associated with all confirmed orders on the next invoice date.

2.6 An exception may apply at the full discretion of PROTEM where they offer their express consent to such a cancellation, and only on terms which will indemnify PROTEM against all associated loss, incurred wholly or in part by virtue of such cancellation.

2.7 Upon the agreed cancellation of any order or part thereof, the purchaser may be liable to a cancellation charge in addition to the above term.

2.8 Orders for special equipment, machines, components, spares, consumables : Technical characteristics, such as dimensions, weight, restrictions to be observed, technical tolerances, etc must be formally stipulated by the BUYER in its written specifications. The BUYER remains responsible for the information contained in these specifications. PROTEM is responsible for confirming its understanding of these specifications and its compliance with them. Moreover, PROTEM cannot be held in any way liable for any studies and construction work carried out on the basis of specifications that provide compulsory descriptive details of the characteristics of the equipment to be manufactured and commissioned.

2.9 Cancellations will not be accepted, at any time, for any Goods specifically manufactured to the Purchaser’s requirements. Orders, once received by the Seller, cannot be suspended without the Sellers written consent. Any suspension, accepted by the Seller, will render the Buyer liable to indemnify the Seller against any associated loss caused directly or indirectly by such suspension.

3. PRICES AND TERMS OF PAYMENT 

3.1 Prices are given in Euros (€). They are subject to the taxes in force in France at the date of the invoice drawn by PROTEM if delivery of the goods in France.

3.2 Prices are ex works and packing is not included. They will necessarily be increased by transport costs, should PROTEM be requested to organise the shipment of the goods for the account of the buyer, “Works” are understood as being at ZI les Bosses, F-26800 Etoile sur Rhône..

3.3 The price of sale as agreed upon in the order may be increased, notably, but not exclusively, if:
- The BUYER requests for modifications to the terms of the order, which must be confirmed in an amendment signed by both parties,
- The BUYER requests for extra services, which must be confirmed in an amendment signed by both parties,
- There is an increase in the cost or rate for raw materials,
- Currency devaluations or new legislative or statutory measures lead to an increase in costs.

3.4 Products and services are payable to PROTEM’s registered office at sight when the order is accepted by PROTEM.

3.5 If the BUYER requests a pro-forma invoice in view of obtaining credit, this document will be issued subordinate to PROTEM being subrogated by the credit company, which must pay the loan attributed to the machine or machines concerned directly to it.

3.6 Payment of a down payment upon the order may in no way be considered as giving the BUYER any rights not to honour its total commitment. Consequently, this payment implies an obligation to pay the entire balance in full, without prejudice to any possible damages.

3.7 Any late payment will be liable ipso jure, and without any prior official notification, to interest on arrears equivalent at three times the legal rate in force on the date of claim and beginning on the date due. Late payment constitutes an event of default and outstanding sums to be paid by the BUYER become due in full immediately.

3.8 According to the article L441-6 of the French Commercial Code, a fixed indemnification of 40 Euros due for collection charges, will apply in case of late payment.

3.9 In the event of any non-payment on due dates, all amicable and legal collection charges, including solicitor’s, notary’s, bailiff’s and similar fees, and interests will be at the cost of the BUYER.

4. DELIVERY - TRANSPORT 

4.1 Delivery schedules are always given for information purposes only and have no obligatory nature. Consequently, any delay that may occur cannot be a cause for requesting an annulment and/or cancellation of the order by the BUYER, or the basis for any legal proceedings claiming damages for any prejudice whatsoever. By virtue of the above, the Buyer shall not be entitled to reject the Goods due to delayed delivery.

4.2 Correct delivery of:
- goods ex works is recognized by the transport documents being signed without any reservations by PROTEM and the carrier, or the BUYER, if the latter collects the goods itself,
- services are recognized by the acceptance report being signed.

4.3 Risks are transferred to the purchaser ex works. No matter what system of transport or delivery is used, equipment always travels at the cost and risks of the BUYER. Therefore it is the BUYER’s responsibility to make any reservations it considers necessary and/or to present any claims to carriers in the event of damage, delays (compared with the delivery schedule specified by the carrier), missing parts or for any other reasons, in compliance with the conditions laid down in Articles 133 and following of the new Commercial Code.

5. RESERVATION OF TITLE

5.1 All the goods sold by PROTEM are covered by the conditions stipulated in Law 80-335 of May 12 1980. As a result, PROTEM maintains ownership of goods sold until their cost has been settled in full. Failure to pay at any due date will lead to an immediate claim of on goods and studies. If the purchaser resells goods sold under reservation of title in the course of his normal business, it must then take all due care to subrogate PROTEM concerning any rights it may hold in respect of the subsequent purchaser.

5.2 These measures do not constitute an obstacle to transferring any risks of loss or deterioration of the goods sold to the purchaser on delivery, as well as any damage that they may cause. In the event of any claims made on the equipment, if necessary an estimate may be made that takes account of any loss of value of the goods, which, together with any costs related to returning and dismantling the product, will be entirely at the BUYER’s expense. Compensation may be made by PROTEM with amounts already received.

5.3 Studies, layout drawings and documents of any kind provided by PROTEM will always remain its exclusive property. They must be returned to it on request and may not be divulged by the BUYER to any third parties without written authorisation from PROTEM.

5.4 All technical documents and information communicated by PROTEM are protected by French law and international agreements on intellectual property.

6. CONFIDENTIALITY

6.1 The BUYER agrees to consider all documents and information emanating from PROTEM as being strictly confidential and not to divulge, sell or transfer any such information to any third party for a period of ten years after their date of communication, unless:
- PROTEM has given its prior written agreement, or
- Required by law or any legal or administrative decision not subject to appeal.

6.2 However, information is not considered as being confidential when the BUYER is able to provide evidence that the information concerned:
- Has become public property on account of third party acts in no way attributable to the BUYER,
- Has been lawfully received from a third party without any infringement to the present conditions,
- Has been developed independently by the BUYER beforehand and in all good faith.
The BUYER agrees to keep strictly confidential any information, which it may have received.

7. WARRANTY 

7.1 The PROTEM warranty is strictly limited to failures related to goods designed and built by PROTEM. PROTEM warrants its products are free from defects in material and workmanship under normal use, for the designated warranty period –paragraph 7.3-. Subject to the conditions and limitations set forth below, PROTEM will, at its option, either repair or replace any part of its products that prove defective by reason of improper
workmanship or materials.

7.2 In the case of specific goods built from specifications drawn up by the BUYER, PROTEM’s responsibility is exclusively limited to its compliance with these specifications, concerning both studies invoiced and GOODS manufactured.

7.3 Goods are guaranteed as follows : machines chassis / housing for a period of 12 months after their date of delivery and any other machine part for a period of 6 months after their date of delivery, on condition that they are used solely for the applications and with the capacities, for which they have been built and that their maintenance has been normally made taking into account of operating conditions and the operator’s manual.

7.4 Goods sold are guaranteed against functional defects resulting from defects in materials, manufacture or design as described below. Any functional defect must appear and be recognized by PROTEM within the warranty implementation period, according to point 7.3,after the delivery date for goods used according to the order or specifications supplied by the BUYER. This period is not valid for parts containing electronic components, in which case the guarantee period will last for 3 months after the date of delivery. Similarly, the period may be adjusted depending on the environmental conditions to which components of all types may be subjected. The guarantee is excluded and PROTEM may not be held liable. Moreover, as far as kits or spare parts are concerned, any claims or complaints on defects that have been discovered must be made eight days at the latest after the date of delivery of the merchandise concerned, the date appearing on the PROTEM delivery slip being considered as the valid date of delivery. After this period, no claims will be accepted.

7.5 Any return of merchandise will not be accepted without prior written agreement from PROTEM. Merchandise accepted by PROTEM will give rise to the issue of a credit note that may only be compensated by means of subsequent invoices. PROTEM reserves the right to control any merchandise returned and, if appropriate, dispute the causes given by the BUYER that justify its return from the latter’s point of view. Effective application of guarantee conditions may be refused in any such case. The BUYER is responsible for providing evidence of non-compliance or of the existence of a defect concerning the goods.

7.6 For the requirements of Article 7, the warranty is void
- If raw material, parts or faulty design-work is provided by the BUYER,
- The product was operated/stored in abnormal use conditions,
- The product is repaired, modified or altered,
- The product was subjected to abuse, neglect, electrical fault, improper packaging, accident or acts of nature,
- The product was installed improperly,
- The maintenance of the product was not ensured properly
- The product was used under abnormal mechanical or environmental conditions,
- The product was used with unsufficient or excessive electrical supply
- The serial number of the product is defaced or missing
- The terms of the warranty do not apply to consumables
- If the functional defect results from an intervention carried out on the goods without written authorization from PROTEM,
- If, following delivery in kit-form, the equipment has not been fitted by the BUYER as per the recommendations supplied in the assembly instructions or has undergone modifications without PROTEM’s written approval,
- If defective operation can be attributed to:
• A case of force majeure; the goods’ normal wear;
• Negligence and/or an error in maintenance made by the BUYER or the end-user of the goods; use contrary to instructions supplied by PROTEM (acquisition, commercialisation and use of PROTEM goods implies knowledge and understanding of their characteristics and conditions of use in compliance with safety instructions. The BUYER is responsible for familiarizing itself perfectly with these characteristics, complying with them and informing all users thereof.),
• Use of spare parts, reserve parts, consumables not manufactured by PROTEM or parts that are different from those originally supplied.


7.7 Under the terms of the guarantee, PROTEM will repair or replace, at its discretion, any parts recognized as being faulty by its technical services free-of-charge. This guarantee only covers labour costs, disassembly and re-assembly. The guarantee may not be extended under any circumstances whatsoever to cover the consequences of any possible defect. Replacement or repair of parts during the guarantee period does not prolong the equipment’s guarantee period.

7.8 By express agreement between the parties, PROTEM’s liability resulting from any functional defect in the goods is limited to the above measures, notably concerning any hidden defects and loss of use. Material and equipment not included in elements constructed by PROTEM, but which may be a part of the supply, are always sold as per the general clauses and conditions of their respective manufacturers, without any possibility of PROTEM being held responsible in this respect.

7.9 Under no circumstances shall PROTEM be liable in any way to the user for damages, including, without limitation, any lost profits, business interruption, lost savings, loss of information or other pecuniary loss or other incidental or consequential damages arising out of the use of, or inability to use, the PROTEM products. This applies even if PROTEM has been advised of the possibility of such loss. PROTEM reserves the right to revise or update its products or documentation in keeping with technological advances without obligation to notify any individual or entity.

7.10 When returning a product, the buyer has to include the original proof of purchase. Return requests cannot be processed without proof of purchase. Shipment of returned products to PROTEM is the responsibility of the purchaser. All expressed and implied warranties for the PROTEM products are limited in duration to the specified warranty period under paragraph 7.3

8. FORCE MAJEURE 

8.1 If PROTEM is incapable of fulfilling one or more of its obligations on account of events that have occurred outside its control and which are defined as being cases of force majeure, it has the right, without any legal action being required, to cancel the contract and/or suspend its execution either partially or in full, without any liability for damages.

8.2 The following situations, but not exclusively so, are considered to be cases of force majeure: acts of war, mobilisation, legal measures taken by public or other authorities preventing or limiting import or export of merchandise, the entry or exit of persons, or their delivery, together with strikes, sabotage, occupation of works or any other incidents that may occur inside the company, shortages of work, stoppages, shortages of energy or raw materials, transport problems as well as any other situation that PROTEM could not reasonably foresee or with which it has suddenly been confronted, without it having to prove the effects of the above on execution of the contract.

9. INSURANCE AND LIABILITIES

9.1 PROTEM has taken out a professional civil liability insurance policy with a manifestly solvent insurance company for covering risks generally associated with its activities and at the profession’s normal level. Valid insurance certificates are available for its clientele. By express agreement, the BUYER waivers all rights of appeal of any type whatsoever over and above maximum levels of liability subscribed to by PROTEM, as stipulated on its insurance certificates. PROTEM’s liability is limited to direct material damage caused to the BUYER resulting from faults that can be attributed to PROTEM in execution of the contract.

9.2 Prejudicial consequences of faults committed by the BUYER or any third party in relation to the contract are excluded from PROTEM’s liabilities. Under no circumstances whatsoever, may PROTEM be required to provide compensation for immaterial or consequential damages, notably losses of use, profit or opportunity, commercial detriment, or foregone opportunities for profit.

9.3 The BUYER guarantees that its insurers or any third party in contractual relations with it will abandon any appeal against the seller or its insurers over and above the aforementioned limits and exclusions.

10. PARTIAL NULLITY

Even if one or more clauses contained in the GSC are considered invalid, the other clauses will continue to hold their exclusive and contractual nature.

11. ASSIGNMENT OF ORDERS

The order placed in application of the present GSC may not be assigned or transferred by the BUYER without prior written authorisation from PROTEM.

12. APPLICABLE LAW AND ASSIGNMENT OF JURISDICTION

12.1 Orders are governed by French law.

12.2 In the event of any dispute, efforts will be made to reach an amicable solution materialized by the dispatch of a registered letter with acknowledgement. If this letter remains to no effect within thirty days, the parties will assign express and exclusive jurisdiction to the Commercial Court of Romans, France, notwithstanding plurality of defendants or introduction of third parties, even in the case of matters of special urgency or any conservatory action.