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| Updated on: 22/02/2012 |
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| STRATEGIC PRODUCT TERMS AND CONDITIONS OF SALE |
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TERMS AND CONDITIONS OF SALE
1. General considerations:
The Terms and Conditions of Sale hereinafter apply to any price quote issued by "Opalium" upon request by a potential buyer whether this quote resulted in an order or not; and on a more general level to any sale concluded between Opalium and a Buyer whose headquarters are located in France or abroad. Any order placed with Opalium implies unreserved acceptance of the present TCS by the Buyer to the exclusion of all other documents (in particular the buyer's own Terms and Conditions of Purchase). No other condition, unless formally agreed in writing by Opalium, may take precedence over these TCS. Any condition of a contrary nature put forth by the Buyer shall, unless explicitly accepted by Opalium, be non-invocable against Opalium, irrespective of the moment when it may be brought to Opalium's attention. The fact that Opalium does not invoke the TCS hereof when the Order is passed does not imply that it wishes to waive the right to invoke any one of the provisions of the TCS at a later date.
2. Purpose and scope of the offer:
2.1. Any party interested in the products commercialized by Opalium must request a price quote prior to placing an order, which Opalium shall reply to as quickly as possible.
2.2. The prices and conditions of a quote established by Opalium relate exclusively to the products and services (qualities and quantities) that are specified within the quote. Unless otherwise specified, these prices and conditions are valid for one month.
2.3. Opalium reserves the right to make amendments, at any time, in particular to the layout, the form, the colour, the sizes and the materials of the products that are represented, described or specified in its catalogues, leaflets or in any graphical additions accompanying its price quotes.
2.4. Any benefit from the order is personal to the Buyer and may not be transferred without Opalium's prior agreement.
3. Placing orders:
3.1. Orders must be made in writing to Opalium. An Order is deemed final at the date that Opalium gives its express written acceptance.
3.2. Any amendment to or cancellation of the Order must be made in writing to Opalium and must be explicitly accepted by Opalium.
4. Intellectual property and confidentiality:
4.1. Opalium is under no obligation to provide its working drawings, even if its products are delivered with an installation diagram. Any drawings or documents that may be transferred to the Buyer remain the exclusive property of Opalium and are deemed confidential. The Buyer refrains from knowingly or unknowingly communicating, in writing or by any other means, to any third party, all or part of the information that it receives from Opalium for the purposes of the Order. This information may only be used for operating and maintenance requirements for the products that the Buyer has purchased when placing the Order. The term "Information" refers, without any restriction, to the know-how, the drawings and the datasheets and, more generally, to all technical, financial and commercial information exchanged or communicated for the purposes of the Order.
4.2. Any technology and know-how, whether patented or not, that is incorporated in the products and any industrial and intellectual property rights relating to the products remain the exclusive property of Opalium. The Buyer is granted a non-exclusive and non-transferable right of use and of maintenance for the products within the framework of the execution of this Order. The Buyer has no right to manufacture or have a third party manufacture replacement parts.
4.3. Opalium is under no obligation to provide any documents relating to its products other than standard documents that already exist and that are intended for this purpose. Any request for a specific document or for establishing a documentary record in one or several copies shall lead to additional invoicing.
5. Prices-Payment conditions-Taxes:
5.1. Prices are not inclusive of taxes and are firm and fixed. Payment terms and conditions are specified in the price quote. Unless otherwise stated, products and services are payable in full when the purchased products are made available in Opalium's manufacturing centres, within thirty (30) days from the end of the month of the invoicing date. Given the management costs incurred by Opalium, each sale shall be invoiced for a minimum amount of 100 euros excluding taxes.
5.2. Default of payment on the due date shall automatically and without formal notice incur interest for late payment equal to three times the legal interest rate in force pursuant to Article 1153 of the French Civil Code. These interests are calculated from the day after the due date until the date payment is made and are payable without a reminder being necessary (Article L.441-6 of the French Commercial Code).
5.3. Failure to pay an installment on the due date shall automatically lead to all sums due by the defaulting Buyer to be paid, even if they have resulted, in part or in full, to the establishment of bills of exchange or to the reception of promissory notes. Furthermore, Opalium reserves the right to suspend fulfilment of its own obligations and to suspend any other order pending, without prejudice to any other course of action, until the date the amounts due are paid in full.
5.4. If payment is more than thirty (30) days overdue, the sale may be terminated ipso jure by Opalium, to the detriment of the Buyer, eight (8) days following a formal notice to pay that has remained partially or fully without response. The termination shall not only affect the Order in question but also any other unpaid pending orders, whether their payment is due or not.
5.5. In the event of non-payment, OPALIUM reserves the right to offset any amounts for any ongoing transactions with the customer in question.
5.6. The aforementioned provisions shall apply without prejudice to any other damages that Opalium may claim.
6. Delivery-Shipment:
6.1. Regardless of the destination of the products and of the terms and conditions of sale, the goods shall be deemed to have been delivered when they arrive in Opalium's workshops, plants or stores. Opalium informs the Buyer of the planned delivery date.
6.2. If the Buyer does not take delivery of the goods on the planned delivery date, the sale may be terminated ipso jure by Opalium, without formal notice and without prejudice for any damages. If Opalium does not exercise this right, the Buyer shall bear handling and storage costs for the goods until the moment this Buyer has secured possession of them.
7. Deadlines-Penalties:
7.1. The delivery times specified on the price quotes are for information only, except in the event that Opalium expressly agrees to firm deadlines. The delivery times are specified as precisely as possible but depend on supply and transport possibilities and/or Opalium availability. As such, any delay in delivery shall not be subject to any reduction, damages, penalties of any type, retention or cancellation of the order being processed.
7.2. Delivery times are calculated from the latest of the following dates: the date Opalium accepts the Order, the date where Opalium receives the information and/or the deposit that the Buyer has committed to submit.
7.3. Opalium is automatically exempt from any commitment as regards deadlines in a situation of force majeure or of events that may occur on Opalium's premises or on its suppliers' premises such as: lock-out, strike, war, embargo, fire, flood, machinery accident, scrapping of major parts during manufacturing, interruption or delay in transport or supplies of raw materials, energy or components, or any other event that is beyond the control of Opalium or of its suppliers.
7.4. In the event of a delay in delivery, if a firm deadline has been accepted and unless specifically stipulated, a full discharge penalty of 0.5% of the ex-works price excluding taxes of the goods that are delivered late, including a threshold of 5% of the total price of the Order excluding tax, shall be applied upon request by the Buyer per full week of delay beyond a period of grace of four (4) weeks.
8. Retention of title:
8.1. Opalium remains the owner of the products until the price, principal and ancillary costs, have been paid in full (Act of 12 May 1980). In the event of non-payment of the price of the products due, Opalium may request, at any time, the return of the products delivered, at the Buyer's expense, regardless of who owns them.
8.2. If the products are transformed or incorporated, the transformed products or the goods in which they are incorporated become a surety for Opalium until payment is made in full. The Buyer is required to report the existence of the retention of title to third parties to whom the Buyer resells the products, either as is or incorporated into a system.
8.3. If the products are returned pursuant to the Article hereof, any deposits paid to Opalium will be forfeited to the company for damages.
8.4. From the date of delivery, the Buyer assumes the risks of product loss, theft and deterioration and is also liable for any damage that they may cause.
9. Packaging-Transport-Customs:
9.1. Unless otherwise stated, the prices specified in the offer are ex-packaging or, if Opalium deems necessary, with regular packaging. Any request from the Buyer for packaging other than that generally used by Opalium shall be subjected to a price supplement. Opalium does not retrieve the packaging under any circumstances.
9.2. Products are sold ex-works. As such, if the Buyer entrusts Opalium to organize transport, insurance and/or customs clearance operations, then these operations are carried out on behalf of the Buyer, at its expense and at its own risks.
10. Warranty:
10.1. Defects covered by the warranty:
Opalium undertakes to remedy any product malfunction resulting from a defect in design, material or manufacturing. This obligation does not apply if a defect is the result of inappropriate storage conditions or of non-compliance with installation and/or connection procedures, or of servicing that does not comply with Opalium requirements, or, if such requirements do not exist, with industry standards.
Warranty does not cover consumables and replacements or repairs that are the result of the normal wear and tear of the products, of deterioration or of accidents due to a lack of supervision of the products or to a use that does not comply with the products' intended purpose and/or Opalium requirements, and more generally any incident for which Opalium is not liable.
The warranty shall not be applied if any modifications or additions are made to the products by the Buyer without Opalium's explicit agreement.
10.2. Guarantee of results:
Opalium does not provide any guarantee as regards the ability of the products to reach the objectives that the Buyer has established if these objectives have not been explicitly accepted by Opalium. In this latter instance, the guarantee of results may only be given under the express condition that automation and Process Activation is implemented by Opalium.
10.3. Warranty period:
Unless otherwise stated in the offer, the warranty only applies to defects that are detected within a period of twelve (12) months beginning on the date of delivery of the products pursuant to Clause 6.1. Any repair, modification or replacement of the parts during the warranty period shall not lead to an extension of this product warranty period.
10.4. Terms and conditions of warranty implementation:
Within the framework of the warranty hereof, Opalium shall remedy the defects detected as quickly as possible, using the means its deems appropriate. Opalium may decide to repair or replace specific parts. The parts replaced become the property of Opalium.
Repairs shall be carried out in Opalium's workshops, once the Buyer has sent the products or the faulty parts back, or on-site, depending on the type of products in question. The cost of looking for a faulty component on-site, of transporting it to the workshops specified by Opalium, the travel and accommodation expenses for Opalium staff on-site and any costs related to assembly and disassembly operations of any component other than the faulty products are at the Buyer's expense.
10.5. Buyer's obligations:
To invoke the benefit of the warranty hereof, the Buyer must inform Opalium of the defects observed in the products as soon as malfunctions appear, and must provide any evidence that may confirm these defects. The Buyer must provide Opalium with every facility necessary to confirm these defects and to remedy them. The Buyer must refrain from repairing or requesting that a third party repair the defects, unless Opalium explicitly agrees.
10.6. Construction warranty:
Our material is guaranteed for two (2) YEARS once it has been commissioned and at the latest eighteen (18) months following delivery pursuant to Article 6.1 hereof for any defects of construction or of raw materials.
During this period, our responsibility is limited to replacing the faulty parts, their transport, the workmanship required, additional travel expenses, but in no case to any other obligations.
10.7. Metallic equipment protection warranty:
The protection warranty for metallic equipment covers the effectiveness of the protection against corrosion/rusting. This warranty is for a period of five (5) YEARS from the date of delivery pursuant to Article 6.1 and includes a RE2 degree of rust and a No.7 effectiveness grade. This protection warranty is based on a sample or a snapshot, that complies with AFNOR standards based on a 10 to 0 degree of corrosion.
This warranty applies to external coatings and internal linings of our treatment units.
The warranty does not cover:
1) deterioration caused by fortuitous or accidental events such as: distortions, shocks, friction, leakage or burrs, abnormal temperature increase, corrosive emanation, etc.
2) any change in the intended purpose of the structure or any modification to the parameters used as the basis for issuing the approval.
11. Liability:
Opalium is under an obligation of diligence related to the performances expected from the products, materials and/or equipment provided and/or related services, as it has no control over the use and/or operating and/or preventive maintenance of the aforementioned products, materials and/or equipment. Opalium's liability is strictly limited to the obligations defined in the Order and under the TCS hereof, which remain limited to direct damage and material damage and exclude any indirect and/or non-material damage (consecutive or non-consecutive) in particular, loss of earnings, loss of profit or loss of production).
The overall liability of the Seller pursuant to the Order is capped at the base price of the Order that the Seller actually receives.
The Buyer is liable for any specifications that it issues and for any use it makes of the material that it has purchased. In consequence, the Buyer must compensate Opalium for and against any direct or indirect costs, claims, damages and losses (including loss of income), related in any way to Opalium's use of a specification of the Buyer or in the event that the Buyer fails to comply with the requirements of the Agreement, or the regulations, in its use of the purchased product.
12.: Insurances
Opalium undertakes to take out the insurance policies necessary, with an Insurance Broker, to cover the risks related to its professional activity, to fulfilling its services pursuant to the Order and to any liabilities that it may be subject to.
13. Force majeure
Opalium cannot be held liable for any default as regards its contractual responsibilities in the event of force majeure and shall inform the Buyer of such an event as quickly as possible. Force majeure includes wars, riots, fires, strikes, accidents, the impossibility for the Seller to be supplied and, on a more general level, any event outside its control. If, under such circumstances, Opalium is prevented from fulfilling any of its contractual obligations, the Order shall be automatically interrupted during the period that the event of force majeure occurs. During this period, the Buyer may be supplied by other sources if the Seller gives its explicit agreement. As soon as the impediment is finished, the contractual and/or Order obligations will become effective for the time of duration left. If the impediment continues for more than thirty (30) days, either of the Parties shall be able to terminate the Order, with no compensation being payable by or two either Party.
14. Termination
If either Party breaches any of its contractual obligations, the other Party may automatically terminate the Order, to the detriment of the defaulting Party, eight (8) days following a formal notice to pay that has remained without response, without any other formality.
15. Objections
Any dispute relating to any price quote issued or to any sale made by Opalium, which can not be settled amicably, shall be under the exclusive jurisdiction of the Court of First Instance of Paris, even in the event of provisional orders, warranty proceedings or plurality of defendants. It is expressly agreed that relations between the Parties are governed by French Law.
16. Miscellaneous provisions
If any clauses of the document hereof are held by a competent authority to be invalid, this shall not systematically undermine the other clauses, which shall remain valid by default. If one or other Party does not exercise one of its rights, or exercises it only in part or delays its exercise, shall not be deemed a waiver of this right and shall not prevent this party from exercising this right again, or in the future, or any other right.
SUPPLEMENTARY CONDITIONS APPLICABLE TO SYSTEMS
In addition to the aforementioned conditions, the following conditions are also applicable to Systems. In the event of contradiction between the aforementioned conditions and the conditions hereinafter, the latter prevail for any Systems sale:
""Systems"", refers to any product that requires adaptation to the specific needs of the Buyer or any installation carried out by Opalium or any sets of products that need to be specifically studied to ensure consistency.
1. Purpose and scope of the price quote:
1.1 Price quotes are established based on the specifications provided by the Buyer, which must contain all data required for determining System characteristics, and in particular for the performances expected, the installation and environmental conditions as well as the type and conditions of the tests that shall be carried out by the Buyer.
1.2 Unless otherwise stated, the option period during which Opalium remains committed to its price quote is three (3) months from the date it is drawn up.
1.3 If no Order exists, the studies and documents transmitted with the price quote must be returned to Opalium within a maximum of fifteen (15) days following the date the price quote expires.
1.4 Opalium reserves the right, if the studies required for establishing the price quote present an unusually high degree of complexity and if the sale is not concluded, to request that the Buyer contributes to the cost of these.Opalium shall inform the Buyer, prior to establishing the price quote, of the cost for establishing this latter.
2. Technical support during commissioning:
2.1 Unless otherwise stated, Opalium's prices do not include assembly, System start-up, or any sets of replacement parts.
2.2 When Opalium technicians intervene on the System installation site, the power supply, ground service equipment, raw materials and any other product of any type required for fulfilling Opalium's services shall be at the Buyer's expense.
2.3 Any adaptation required for the System to operate correctly shall be at Opalium's expense if the operating conditions and the data specified in the Order and accepted by Opalium have not been complied with. If, however, the adaptations required are as a result of an inadequacy or an error in the information transmitted by the Buyer, a modification in the System implementation or its environment, the cost of the adaptations and the time spent on them shall be invoiced to the Buyer.
2.4 If on-site, the intervention of Opalium technicians is delayed for reasons beyond their control, then the delay time shall be invoiced to the Buyer. The same shall apply for any expenses resulting from unjustified travel.
3 Tests
3.1 Tests are undertaken in Opalium manufacturing workshops. If the Buyer requests tests other than those provided for in the offer or tests on the System installation site, these shall be undertaken at the buyer's expense.
4. Prices - Payment conditions:
4.1 Systems prices are, unless otherwise agreed, reviewable by applying a review formula adapted to the type of material and specified in the offer.
4.2 Within the framework of an agreement that is fulfilled in phases over time, deposits are, unless otherwise agreed, payable upon the order of or upon the request to manufacture a segment of the System and are payable by cheque or by sight draft upon reception of the invoice issued by Opalium.
5. Warranty
5.1 If the type of System means that a return such as provided for under Article 10.4 of the Terms and Conditions of Sale is impossible, then the travel expenses of the staff required to repair the System on-site shall be invoiced to the Buyer by Opalium.
5.2 If Opalium incorporates devices or apparatus in the System that it has not manufactured, then the scope and duration of the warranty shall be that agreed by their manufacturer to Opalium.
5.3 The warranty specified under Article 10 of the Terms and Conditions of Sale does not apply if a System malfunction occurs as a result of material or components supplied by or imposed by the Buyer, or as a result of design imposed by this latter. |
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