General Terms and Conditions of Supply – LLC EMK-Parts
General Terms and Conditions of Supply – EMK-Parts LLC
Art 1 – APPLICABILITY:
1.1 Signing the order form implies from the Buyer his full and unreserved acceptance of these general sales conditions. No particular Terms and Conditions of Purchase or any other document from the Buyer
can prevail against these general conditions, unless subject to an express approval by the Vendor.
1.2 These general sales conditions cover any sale of machine, spare part (non-closed list) by our company, unless agreed otherwise by the Parties prior to the order. Consequently, an order by a customer
means the full acceptance without reserves to the present sales conditions, apart from formal exceptions written by the Vendor.
1.3 Any other document such as catalogues, leaflets or brochures issued by the Vendor are for informative purposes only.
Art 2 - INTELLECTUAL PROPERTY:
Any technical document (project, drawing, quote, study, picture, leaflet...) delivered to our Customers shall remain the exclusive property of EMK-Parts, solely entitled to the rights of intellectual property
on these documents, and shall be given back upon request.
Our Customers shall not use of any of these documents in any way likely to infringe EMK-Parts rights of industrial or intellectual property. These documents are confidential and cannot be
communicated, given or duplicated without our written authorization.
3 VALIDITY OF AN OFFER FROM THE VENDOR:
Any document formalizing an offer from the Vendor (quote, commercial proposal….) is valid for 30 days for contents, prices and lead times, except if otherwise stated in this document.
Art 4 – ORDERS:
4.1 Definition and form:
By “order”, it is to be understood any written and signed order from the Buyer for the equipment, parts or services on our offers or subject to a specific study.
To be taken into account, the order has to be, if need be, accompanied with the down payment provided for in the contract.
To be fully valid, the order has to be accepted by the Vendor under the form of an acknowledgement of receipt of order sent to the Customer.
The Vendor is entitled to refuse any order he could not answer.
The supply only corresponds to the equipment and/or services specified on the confirmation of order form edited by the Seller made in accordance with the Customer’s request.
4.2 Modifications:
4.2.1 The orders sent to our company cannot be cancelled without written authorization from our side.
4.2.2 Any notification by the Customer to amend the contents or the quantity of the order must be made in writing -including fax or e-mail- within 8 days from the receipt of the initial order at EMK-Parts.
Such amendment of the order by the Customer will imply some delays compared to the agreed initial delivery time.
The same conditions and forms (article 4.1 here above) are applicable to the amended order.
4.2.2 Any notification by the Customer to amend the contents or the quantity of the order must be made in writing -including e-mail- within 3 days from the receipt of the initial order at EMK-Parts.
Such amendment of the order by the Customer will imply some delays compared to the agreed initial delivery time.
The same conditions and forms (article 4.1 here above) are applicable to the amended order.
Art 5 – DELIVERY:
5.1 Delivery times:
5.1.1 The delivery lead times mentioned in our quotes and confirmation of orders shall run from the latest of the following dates:
- day when all technical specifications have been agreed upon,
- day when all data from the Buyer has been communicated
- day when the down-payment has been received by the Seller.
- day of the acknowledgment of receipt or order
- day when the Buyer has fulfilled its preliminary legal or contractual obligations
5.1.2 The lead times are given for information purposes only; they depend also on the availability of forwarders and are handled on a first-come, first served basis.
Our company does its best to respect the delivery times as detailed in the confirmation of order, according to the logistic reference deadline currently used.
Delays in delivery do not entitle the Customer to penalty or compensation, nor do they justify cancellation or termination of the Customer’s order sent to our company.
It is expressly agreed that the Customer cannot take advantage of an extension of deadline to request the cancellation of the sale or any damage, in particular for operating losses.
Also, in case of delivery to the address specified in the order, the Buyer cannot take advantage of any delay due to third Parties (freight forwarders, demonstrations blocking the public road…) to request
damages from the Seller.
The Seller is rightfully released of any commitment concerning delivery deadlines:
a/ in case the terms of payment and down–payment have not been respected by the Buyer.
b/ in case the information to be supplied by the Buyer does not reach the Seller in due course (technical specifications in particular) or in case of a delay in the studies or the preliminary documents.
c/ in case of a delay in delivery, installation and/or commissioning because of the Buyer.
d/ in case of force majeure, i.e. of events recognized by the jurisprudence as unpredictable and irresistible or in case of circumstances outside of the control of the Seller, such as, but not limited to: strikes,
frost, fire, storm, flood, epidemic, roadblocks, gas and/or electricity supply disruption, difficulties of supply, . The Seller shall inform the Buyer in due time in case of such events.
e/ in case of social, political, economic or technical events which would hinder the operation of our factories, the factories of our subcontractors or their supply in components, in energy or in raw materials.
f/ in case of any other cause of supply disruption attributable to our suppliers or subcontractors.
If one of the events mentioned in articles 5.1.2 d, 5.1.2 e, and 5.1.2 f came to last more than 30 days as from its date of occurrence, the sales contract concluded by the Vendor and the Customer may be
cancelled by the most diligent Party, and none of the Parties shall claim for the granting of damages.
This termination shall come into effect on the date of first presentation of the registered letter with acknowledgement of receipt denouncing the aforementioned sales contract.
5.2 Delivery and transfer of risks:
The delivery of equipment or parts is considered performed at the exit of our factories or those of our subcontractors, unless otherwise agreed and duly stipulated in the particular conditions of the contract.
It is expressly agreed that the transfer of the risks will be made automatically at the release of our factories/works, warehouses or of those of our subcontractors whatever the Incoterm condition agreed. As a
consequence, the goods will always travel at the Buyer’s own risks.
5.3 Freight/Transport:
It is up to the Customer, in case of damage to the delivered goods or of missing quantities, to make all the necessary reserves with the carrier.
Unless otherwise informed by registered letter with acknowledgement of receipt within 3 days of its reception with the carrier, a copy of which
will be simultaneously sent to our company, any delivery without reserves shall be considered accepted by the Customer.
5.4 Acceptance:
5.4.1 Without prejudice to measures to be taken by the Customer towards the carrier such as described in the article 5.3, in case of visible defects or of missing quantity, any complaint, whatever its nature,
concerning the delivered products, shall be accepted by our company only if it is made in writing, by registered letter with acknowledgement of receipt, within the deadline of 3 days as explained in the article 5.3.
5.3.
5.4.2 It is the responsibility of the Buyer to supply all the justifications as for the reality of the defects or items missing noticed, our company reserving the right to proceed, directly or indirectly, to any observation
and on-the-spot checks.
5.4.3 No return of goods shall be made by the Customer without the express, written preliminary agreement, of our company, by e-mail.
The return freight for the goods in question shall be chargeable to our company only if the visible defect or missing part is actually noticed by our company or our representative.
Only the freight forwarder chosen by our company is authorized to make the return transport of the goods in question.
5.4.4 If after a control carried out by our company or our representative, a visible defect is noticed or the quantity of goods due is not complete, the Customer may only ask for the replacement of the nonconform
items and/or the complement to be brought to fill the missing parts at EMK-Parts expense but shall not claim for any compensation or the cancellation of the order.
5.4.5 The acceptance without reserve of goods ordered by the Customer shall cover any visible and/or missing vice.
Any reserve has to be confirmed in the conditions provided for in article 5.4.1.
5.4.6 The claim reported by the Buyer in the conditions and according to the form described by the present article shall suspend the payment by the Customer of the concerned goods.
5.4.7 The responsibility of our company shall not apply to matters of transport, destruction, damage, loss or theft, even if we choose the freight forwarder.
5.5 Suspension of delivery:
In case of overdue amount remaining unpaid after 48hours from notice from EMK-Parts, we retain the right to suspend any current and future delivery of goods.
5.6 Order refusal:
In case the Customer sends an order to our company, without having proceeded to the payment of his previous order, our company shall be entitled to refuse to execute the order and to deliver the concerned
goods, without the possibility for the Customer to claim any compensation for whatever reason.
Art 6 - PACKING-SHIPMENT-INSURANCE:
6.1 Unless otherwise agreed, packaging is always paid by the Buyer. In the absence of special indication on this matter, the packaging is prepared by the Seller who acts for the best interests of the Buyer;
packaging is only a simple mechanical protection against the accidental shocks.
6.2 All the operations of transport, handling, unless otherwise agreed in the contract, are at the expenses and own risks of the Buyer who shall subscribe an adequate insurance policy.
6.3 In case of shipment by the Seller, the shipment is made “carriage unpaid”, at the cheapest rates, unless expressly requested by the Buyer. Shipping costs shall be invoiced to the Buyer.
6.4 In any case, it is to the responsibility of the Buyer to verify the deliveries on arrival and to exercise, if necessary, its appeals against the freight forwarder.
6.5 In case the transport operations remain at the Seller’s own risks, any damage during the transport shall be notified by the Customer within 48 hours in order to allow the Seller or the carrier to proceed to
the claim report to the insurance companies.
Art 7 – PRICES:
7.1 Our prices are fixed by the current offers on the day of the order signature. They never include tax or packaging costs. They are EX works at our factories and workshops or those of our subcontractors.
7.2 Our prices are given EXW, except preliminary agreed with the Customer in the offer.
7.3 They are calculated net and payable without discount. They are deemed to take into account any down payment invoices which are due on reception day.
For prices specified by quantity, any order concerning a lower quantity will lead to a modification of the indicated price.
7.4 Unless otherwise agreed, the delays in delivery do not lead to cancellation or modification of the contract. They do not give right to compensation. Any penalty clauses contained in the Customer’s business
documents Customers are non-applicable to us.
Art 8 - PAYMENT CONDITIONS:
8.1 Payment:
Unless otherwise specified in the quote issued by our company or on the order form accepted by us, payments are made by bank transfer upon receipt of invoice for any down payment, and within 14 calendar
days from invoice date for all other invoices, without discount. Any provision or request aiming at fixing or being granted a time for payment exceeding such 14 days-period, and except for an objective reason
justified by the Purchaser, shall be deemed as abusive and shall give rise to a civil penalty.
8.2 Non-payment:
8.2.1 The terms of payment agreed on between the Parties are the rule of the contract. The Buyer cannot use facts irrelevant to the Seller to delay or reduce his payments. In case of dispute, the Buyer
undertakes not to put pressure on the Seller by illegally retaining the due sums.
Furthermore, our company retains the right to submit the case to the relevant court and ask for an order to cease the non-payment, under a daily penalty for each day of delay.
8.2.2 Any amount (including taxes) which is not settled on time shall entail penalties. These penalties are due by law and shall automatically be debited to the Customer’s account in our books.
8.3.3 No discount shall be granted for early payments. Any non-payment shall entail the immediate suspension of any delivery, without any compensation, and any down payments already received shall not be paid back to the Buyer.
Art 9 – OWNERSHIP:
9.1 The transfer of ownership of our products is effective upon receipt of their full payment by the Customer, even in case of granting payment terms.
9.2 It is expressly agreed that our company can use the rights it holds in accordance with this property clause. Any default in the payment of any of the installments shall entitle the Seller to claim for the return
of the products or claim them as compensation for all its unpaid invoices without prejudice to its right to terminate the current sales.
9.3 The Buyer is authorized, within the framework of the normal operation of his company to resell the delivered goods. However, he shall not pawn them nor transfer their property as a guarantee. In case of
resale, the Buyer shall make a commitment to pay the remaining sums due immediately to our company.
9.4 The Buyer is authorized within the framework of the normal operation of his company to transform the delivered goods. In case of transformation, the Buyer shall immediately pay the remaining sums due
to the Seller.
9.5 Our company shall also be entitled, in case of non-payment,
to claim for the cancellation of the sale after sending a simple formal request.
Furthermore, our company shall be entitled to decide unilaterally, after sending an official demand, to carry out or to have a third-party carry out an inventory of goods in possession of the Customer, who undertakes to give free access to its warehouses, stores or other of the
kind, providing that the identification of goods is still possible.
9.6 In case of the opening of a procedure of receivership or bankruptcy against the Buyer, orders on hand shall automatically be cancelled and our company reserves the right to claim the goods in stock.
9.7 This clause does not prevent the transfer of risk on the goods to the Buyer upon delivery.
9.8 Similarly, from the delivery date, the Buyer shall be considered depository and guardian of the aforementioned goods. In the case of non-payment and unless we prefer to ask for the full and whole execution
of the sale, we reserve the right to cancel the sale after formal request and to claim the delivered goods back, the expenses for transport remaining chargeable to the Buyer and the payments already made
being acquired to us as compensation.
Art 10 - VENDOR’S WARRANTY:
10.1 Definitions and guarantee limits
10.1.1 The Seller guarantees any defect in operation resulting from a defect in a raw material used, in the construction or the design. However, this warranty obligation is to be understood within the limits of
following clauses:
10.1.2 The guarantee covers the supply and manpower caused by the repair or the replacement in our workshops of defective parts, as a result of a defect in the materials or construction, with the exception
of any other material or immaterial, direct or indirect damage, in particular damage for operating losses. The transport of parts or sub units stays chargeable to the Buyer. The guarantee does not cover the
normal wear and tear of any part.
10.1.3 Defective parts, scraped or to be replaced, shall become the property of EMK-Parts and shall, at our request, be sent back to our factories, free of charge.
10.1.4 The warranty shall be excluded if our equipment has not been installed properly (in accordance with the installations instructions provided) or by one of our technicians.
10.1.5 The guarantee applies only if the goods sold were normally used and in compliance with its normal destination. It does not apply if the goods have been modified by a client or a third-party.
10.1.6 The guarantee shall not applies in case of noncompliance with the terms of payment, the instructions of maintenance and operations of badly executed civil engineering, works and non OEM parts
installed or used by the Buyer.
10.1.7 The repair, the modification or the replacement of defective parts during the warranty period does not initiate a new guarantee period. The initial guarantee deadline is applied and remains applicable.
10.2 Duration and starting point of the guarantee:
10.2.1 Unless otherwise stipulated in the specific conditions of the confirmation of receipt of order, the Seller grants a guarantee of maximum one year, which runs from the date of putting the goods at the
Customer’s disposal in our workshops or our subcontractors’ workshops. The provisional acceptance will be the subject of a written report with or without reserves, established contradictorily with the Buyer.
The guarantee duration in relation to the sale of spare parts, except wear and consumption parts, is limited to 12 months.
10.2.2 The provisional acceptance will occur, either at the availability date in our workshops or at the end of the assembly or start-up. The event which shall be considered as marking the temporary acceptance
shall be defined in the particular conditions and shall mark the beginning of the guarantee.
10.2.3 In case such an acceptance report is not set up, for any reason,
the temporary acceptance shall be deemed to have happened 3 months from the availability date of the goods in our factories or of those of our subcontractors.
10.2.4 The tests and the trials carried out for the temporary acceptance are opposable to us only if they are made in the presence of one of our technicians and agreed upon in the particular conditions of the
contract or order.
10.2.5 The last day of the contractual guarantee will constitute the date of the definitive reception of our equipment and will release the Seller of its warranty obligations.
10.3 Obligations of the Buyer:
10.3.1 To be entitled to call upon the benefit of this guarantee, the Buyer shall inform the Seller by the way that he deems fastest, with written confirmation of the defects which he claims exist and supply all
the justifications as to their reality.
10.3.2 The Buyer shall provide the Seller with all the means to proceed to the observation of these defects so that he can solve them. Moreover, he shall refrain, unless expressly agreed by the Seller, from
carrying out the necessary repairs himself of having them carried out by a third-party
Article 11 - ATTRIBUTION OF JURISDICTION:
11.1 The SELLER resides at its head office, Lugova St. Kyiv, Ukraine.
11.2 Any dispute about the application of the present general sales conditions and their interpretation, their execution and the sales contracts concluded by our company or concerning the payment of the price,
shall be taken to the Tribunal de Commerce of the head-office of our company, notwithstanding the location of the order, the location of delivery, and the payment and method of payment, and even in case of appeal in guarantee or of defendants' plurality.
14.3 The allocation of competence is general and applies, for a main demand, an incidental demand, a court case or for an emergency proceeding.
14.4 Furthermore, in case of legal action or any other action in debt collection by our company, the expenses of formal demand, justice, as well as the fees of lawyers and bailiff and all the fringe expenses
shall be chargeable to the Customer, as well as the connected expenses consequent to the non-fulfilment by the Customer of the terms of payment or of delivery of the considered order.
Article 15 - RENUNCIATION:
The fact that our company does not take advantage of one of the clauses of the present contract, shall not mean that it shall not take advantage of them to these clauses in the future.