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ARTICLE 1 - General provisions
In accordance with the provisions of article L 441-6 of the French Commercial Code, these general terms and conditions of sale constitute the sole basis of the commercial relationship between the parties.
They will remain in force for the entire 2023 calendar year and, where applicable, for subsequent calendar years, in the absence of any subsequent amendment.
Their purpose is to define the conditions under which NODUS FACTORY (hereinafter the "Supplier") supplies to professional customers (hereinafter the "Customer" or the "Customers") who request it, any standard and/or customized product based on specifications provided by the Customer (hereinafter the "Product" or the "Products").
In accordance with current regulations, they are systematically sent or given to each potential and/or established Customer, to enable them to analyze the Supplier's commercial conditions and, where applicable, to place an order. They are intended to apply to all sales made by the Supplier and relating to the Products. They also apply for the entire duration of the contractual relationship, in the case of "open" orders.
Any order for Products placed after the Customer has received these General Terms and Conditions of Sale will automatically be subject to their application.
Unless otherwise agreed between the parties in this respect, all stipulations herein shall prevail over any conditions of purchase. In the absence of express acceptance by the Customer, any condition to the contrary shall be unenforceable against the Supplier, regardless of when it may have been brought to the Supplier's attention.
In accordance with current regulations, the Supplier reserves the right to derogate from certain clauses of these general terms and conditions of sale, depending on the negotiations conducted with the Customer, by drawing up special terms and conditions of sale.
Any deviation from these General Terms and Conditions of Sale must be expressly accepted in writing by the Supplier. A written document is any document drawn up on paper, electronically or by fax.
The fact that the Supplier does not invoke any of the present terms and conditions of sale at a given time may not be interpreted as a waiver of the right to invoke any of the said conditions at a later date.
The invalidity of one or more provisions of these terms and conditions shall not affect the validity of the other provisions. If necessary, the parties will consult each other to find alternative stipulations to replace the invalid stipulations.
ARTICLE 2 - Orders
2.1 - General provisions
Orders are only valid once the Supplier has drawn up an estimate describing the order and the Customer has expressly accepted it. Any order placed by the Customer subsequent to this quotation shall constitute express acceptance.
Unless otherwise stated, quotations are valid for 15 days. After this period, the Supplier reserves the right to either maintain its offer, propose an updating amendment, or reformulate its offer.
When the order concerns standard Products, it is only valid after express written acceptance by the Supplier. This acceptance is made by any means the Supplier chooses, and in particular by a simple exchange of e-mails.
When placing an order, the Customer shall specify, where applicable, the Product references and the number of Products ordered and, more generally, for any custom-made Products, shall supply any documents such as drawings, studies, descriptions, enabling the Supplier, where applicable and if not previously supplied, to manufacture the parts ordered.
2.2 - Down payments
In the case of custom-made orders and/or orders which are particularly large in quantity or value, the Supplier reserves the right to demand payment of a deposit of thirty (30) % (T.T.C., of the amount T.T.C. of the total order) at the time the order is placed, or, in the case of orders requiring a relatively long lead time, several instalments spread over the manufacturing time. Where applicable, the Supplier will provide the Customer with information on the said advance payment(s) when the order is placed. In this case, the order will not be considered definitively accepted until the first instalment has been paid and collected in full.
2.3 - Consequences of placing an order with regard to these terms and conditions - intuitu personae
In addition to accepting the terms and conditions of sale as indicated above, placing an order implies that the customer is fully aware of them.
Furthermore, it is hereby specified that each contract concluded with the Customer being intuitu personae, and the Supplier's acceptance of the order being linked to the Customer's identity, the Customer shall refrain from assigning or transferring, in any manner whatsoever, (and in particular in the form of assignment or management lease of its business, contribution to a company or, if the Supplier fails to do so, the Supplier may, without prior notice, declare the term of the contract to have expired and, consequently, any sums still owing on any account whatsoever to be immediately due and payable.
2.4 - Cancellation - modification of the order by the Customer
Where applicable, the aforementioned initial deposit shall in no circumstances be considered as a deposit. Thus, in the event of cancellation of the order by the Customer, and subject to its acceptance by the Supplier, the deposit which may have been paid at the time of the order shall be automatically acquired by the Supplier without prejudice to any damages as indicated below, and may not give rise to any reimbursement whatsoever. Thus, in addition to retaining the aforementioned deposit, the Customer shall compensate the Supplier for all costs incurred (in particular specific equipment, design costs, labour and supply costs, tooling) and, more generally, for all direct and indirect consequences arising from this cancellation.
As orders are final and irrevocable, any request for modification by the Customer is subject to acceptance by the Supplier. Requests for modifications will only replace the initial order after express acceptance by the Customer, where applicable, of a specific quotation and a possible price adjustment.
2.5 - Effects of an order modification on stocks
Within the framework of its normal commercial relations with certain customers, the Supplier may be required to establish inventories (such as materials, work-in-progress, finished products), according to the needs of the said customers and in their interest, either at their express request, or defined in such a way as to meet the provisional programs announced by the latter.
Any modification or suspension of the contract by the Customer which does not allow the stocks to be sold out under the conditions initially foreseen, will be considered as a cancellation of the order by the Customer and will be treated under the aforementioned conditions.
Thus, any questioning of the sale of stock due to the Customer, and provided in this case that the stocks concerned have been established in a reasonable manner by the Supplier, will give rise to the right for the latter to take any action of its choice with a view to obtaining all damages relating to the loss suffered as a result.
2.6 - "Open" orders
In the specific case of "open" orders, these must meet the following conditions:
- Be limited in time,
- Precisely define the characteristics and prices of the Products, for the entire duration of the contractual relationship,
- Minimum and maximum quantities and estimated lead times,
- Indicative delivery times.
Any corrections made by the Customer to the forecast estimates of the overall open order, resulting in a deviation of more than 10% above or below the amount of said estimates, will be considered as a modification of the order and will therefore be subject to the Supplier's agreement. In such a case, the parties shall consult each other to find a solution to the consequences of this deviation, which may modify the balance of the contract to the detriment of the Supplier.
In the event of an upward correction, the Supplier will do its utmost to satisfy the Customer's request in quantities and timescales compatible with its capacities (production, transport, subcontracting, human, financial, etc.), and in any event cannot be held liable in any way whatsoever if the new conditions requested by the Customer cannot be met because they were not foreseen or even envisaged from the outset.
ARTICLE 3 - Rates
The prices of the Products and any ancillary costs (transport costs, customs duties, etc.) are specified in the quotation drawn up in advance by the Supplier and accepted by the Customer, as indicated in article 2 above.
Unless otherwise agreed by the parties in this respect, the prices communicated are firm and non-revisable and are in euros, exclusive of tax, T.V.A. not included.
The Supplier reserves the right to modify its prices at any time and without prior notice, by simple written notification to the Customer, in order to take into account, in particular, fluctuations in the price of raw materials, or increases in fixed charges. In any event, any price change under these conditions can only be justified by additional costs beyond the Supplier's control. In particular, any event beyond the control of the parties which would increase the price T.T.C. of the order between the date of its completion and the date of payment (in particular, changes in fiscal and parafiscal taxes), will be automatically enforceable against the Customer and taken into account in drawing up the final invoice, without being considered as a unilateral modification of the contract. Under no circumstances will a price revision on these bases allow the Customer to cancel the order.
Customers are deemed to have tacitly accepted the new prices if they place orders after they have been notified of the new prices.
ARTICLE 4 - Payment
4.1 - Payment terms
Unless otherwise agreed between the parties, and subject to any deposit(s) previously paid as indicated above (article 2), the price is payable no later than thirty (30) days following the date of issue of the invoice, which is issued on the day following shipment of the Products / on the day of delivery of the Products to the Customer.
Contractually agreed payment dates may not be unilaterally called into question by the customer for any reason whatsoever, including in the event of a dispute.
Payment by the customer will not be considered final until the sums due have been received.
4.2 - Payment terms
The price is payable solely by bank transfer (SWIFT or SEPA), to the exclusion of any other means of payment.
4.3 - Late payment
Any sum not paid on the due date will give rise, ipso jure and without prior formal notice, from the day following the payment date shown on the invoice, to the payment by the Customer of late payment penalties corresponding to the legal interest rate plus ten (10) points, of the price including VAT shown on the said invoice.
In accordance with the provisions of Articles L 441-6 of the French Commercial Code and D. 441-5 of the same Code, any delay in payment will also result in the Customer being obliged to pay a fixed indemnity of
40 for collection costs. An additional indemnity may be claimed, with supporting documents, when the collection costs incurred exceed the amount of the fixed indemnity. In particular, the customer must reimburse all costs incurred by the contentious recovery of sums due, including legal fees. This is without prejudice to any other compensation that may be claimed.
In such a case, the Supplier also reserves the right to suspend or cancel the supply of Products ordered by the Customer, and more generally, to suspend the performance of its obligations towards the Customer and cancel any discounts granted to the latter, without prejudice to any other course of action, in particular in application of the provisions of article 1219 of the French Civil Code. This applies not only to the disputed order, but also to any other order in progress with the defaulting Customer.
The suspension of performance shall take effect immediately upon receipt by the Customer of the notice of default sent to it for this purpose by the Supplier, indicating the intention to apply the exception of non-performance for as long as the Customer has not remedied the default noted, served by registered letter with acknowledgement of receipt or on any other durable written medium allowing proof of dispatch.
This non-performance exception may also be used as a preventive measure, in accordance with the provisions of article 1220 of the French Civil Code, if it is clear that the Customer will not perform its obligations on the due date, and that the consequences of such non-performance are sufficiently serious for the Supplier. The suspension of performance will take effect immediately, upon receipt by the Customer presumed to be in default of the notification of the intention to apply the exception of preventive non-performance until such time as the Customer performs the obligation for which a future default is manifest, served by registered letter with acknowledgement of receipt or on any other durable written medium allowing proof of dispatch.
In particular, in the event of a deterioration in the customer's financial situation as certified by a financial institution or attested by a significant delay in payment, or when the customer's financial situation differs from the data provided at the time the order was placed, delivery will only be made in return for immediate payment.
In the event of non-payment, forty-eight hours after unsuccessful formal notice, the sale will be automatically cancelled at the Supplier's discretion, and the Supplier may request the return of the Products, which must be returned in perfect condition for sale, without prejudice to any other damages. Cancellation shall apply not only to the order in question, but also to all previous unpaid orders, whether delivered or in the process of being delivered, and whether or not payment is due. In this case, and in addition to the foregoing, any sum previously paid to the Supplier as a deposit shall be definitively acquired by the Supplier, and no reimbursement in this respect shall be due.
In all the above cases, any sums due for other deliveries, or for any other reason, will become immediately payable if the Supplier does not opt to cancel the corresponding orders.
4.4 -Reservation of ownership
In the event that payment has not been made in advance, the transfer of ownership of said Products, despite their delivery under the conditions set out below (article 5), will be subject to full payment by the Customer to the Supplier of the total price of the order, in principal and accessories.
In the meantime, in the event of seizure or any other intervention by a third party on the reserved Products, the Customer undertakes to inform the Supplier immediately in order to enable the Supplier to oppose such action and preserve its rights. In any event, the Customer shall refrain from pledging or transferring by way of security the ownership of Products subject to the present reservation of title clause.