1. General provisions

These general terms and conditions are applicable to all contracts concluded by the company FAIVRE (hereinafter FAIVRE) concerning the Products manufactured by FAIVRE (hereinafter the Products). They cancel and replace the previous general conditions. Unless otherwise agreed, all orders imply unreserved acceptance of these general terms and conditions, regardless of any contrary provisions that may appear in any document issued by the Client.

The particular stipulations contained in FAIVRE’s offer prevail over these general conditions. The fact that FAIVRE does not take advantage of any clause in the general conditions cannot be interpreted as a waiver of the right to take advantage of any condition at a later date. The recognition of the invalidity of a clause will not affect the validity of the other provisions.

2. Contractual documents

The contract includes the present general conditions, the technical data of the Client transmitted on any medium, the quotation, the plans issued by FAIVRE, the Client’s order, the acknowledgement of receipt of the order, the dispatch note, the delivery note, the invoice.

The information contained in brochures, catalogues and other advertising documents is not contractual.

3. Evidence agreement

All written documents exchanged between the parties may take the form of electronic documents. In case of contradiction between an electronic document and a document drawn up on paper, the second document shall prevail

4. Quote

Any specific order from a Customer will result in the issue of a quotation.
Quotations are valid for 30 days from their issue. Quotations are drawn up in consideration of the specifications communicated by the Client. The Customer is bound by all the specifications transmitted by him.

5. Orders

All orders must be sent in writing, by fax or e-mail.

By placing an order, the Customer is deemed to have accepted the quotation and these terms of sale.
The Customer’s order must indicate the reference of the quotation, the plans and the quantity of Products required.

The order is only deemed to be accepted by FAIVRE after FAIVRE has issued an acknowledgement of receipt. Unless otherwise agreed, the Plans must be returned signed by the Customer.

6. Modification – Suspension – Cancellation of order

Any order modification, suspension or cancellation must be sent before the start of production the by any written means and is only considered as accepted after written confirmation from FAIVRE. It may lead to a renegotiation of the conditions.
The Customer who cancels all or part of his order, or who modifies the conditions of his order, through no fault of our own, is obliged to compensate us for the totality of the costs incurred at the date of receipt of the notice of cancellation or modification from the Customer, without prejudice to any damages and to the right of FAIVRE to charge a flat management fee.

In case of cancellation, the deposit paid will be retained by FAIVRE.

7. Studies – drawings

All plans, studies, descriptions and technical documents submitted to the Client are provided exclusively for the purpose of evaluating and discussing the quotation.

Plans and studies are free if they are followed by an order. In the absence of an order, FAIVRE reserves the right to demand a financial consideration for their preparation. They may not be used by the Client for any other purpose.

FAIVRE retains the material and intellectual property of the plans and studies. They may not be communicated to third parties or be executed without written authorisation. These documents must be returned at FAIVRE’s first request.

8. Product Delivery

The Customer is responsible for choosing Products that are technically suitable and, if necessary, for checking with FAIVRE that the Products are suitable for the intended application. The customer shall inform the sub-purchaser about the application conditions of the Products.

Specifically, the Customer is responsible for the choice of the coating of the Products with regard to the intended use (salt water, fresh water), for communicating the electrical voltage of use and for transmitting to FAIVRE any other element.

Any error or modification will be charged to the Customer. The Customer is responsible for the use of the Products under normal foreseeable conditions of use and in accordance with the safety, environmental and hygiene rules in application at the place of installation.

9. Product installation

FAIVRE will take care of the Products’ installation when it is provided for in the quote. The Customer is responsible for the connection of the Products to his electrical installation and for the compatibility of his electrical installation with the Products.

10. Delivery

10.1 Delivery terms

In the case of delivery in France, according to the quotation, delivery is made either by direct handover of the products to the Customer, or by a simple notice of availability, or by delivery to the address indicated by the Customer in his order, unloading being at the Customer’s expense.

In the case of delivery abroad, delivery shall be made in accordance with the Incoterm (CCI version 2010) specified in the quotation.

In any case, delivery can only take place if the Client is completely aware of all its obligations towards FAIVRE, whatever the products or deliveries concerned, in particular concerning the payment of the deposit and the provision to FAIVRE of all the documents necessary for the execution of the order

10.2 Production Time

The manufacturing times indicated to the Customer are only indicative. Transport is not included in this time frame.

Any order modification during the execution of the order may cause an extension of the manufacturing lead times.
The manufacturing times depend on production capacities.

They only start to run from the later of the following two dates

the date of payment of the deposit by the customer, or,
the date on which the necessary parts are supplied, or
the date the drawings are returned signed by the Client.
Compliance with the manufacturing date is assessed in relation to the date the Products are shipped, excluding the time required for shipment. Delay shall in no case justify the cancellation, modification or postponement of the order or of other orders already confirmed, nor shall it give rise to any penalty or damages.

Delivery will only be made on condition that the Products have been paid for when the payment terms provide for payment before dispatch.

11. Risk transfer

Unless otherwise agreed, the Customer assumes from the moment of delivery the risk of loss or deterioration of the Products as well as the responsibility for any damage they may cause without prejudice to FAIVRE’s right to assert its retention of title clause or to make use of its retention right, even in case of force majeure, fortuitous event or act of a third party.

12. Shipment – Receipt – Product conformity

It is the Customer’s responsibility to check shipments on arrival and to make any necessary observations on the delivery note or the carrier’s receipt under the conditions of article L.133-3 of the French Commercial Code, which requires notification to the carrier by extra-judicial act or by registered letter of justified reservations within three days of receipt.

The Customer will inform FAIVRE of his reservations within 48 hours of receipt. The Customer undertakes to keep the allegedly defective Products for a possible contradictory expertise. Without prejudice to the measures to be taken with regard to the carriers, the Customer undertakes to check upon receipt, the conformity, the absence of apparent defects, the condition of the products and the quantities.

The costs and risks associated with this inspection shall be borne by the Customer. In the absence of any written reservation formulated within fifteen days of receipt, the Products shall be considered as definitively accepted without reservation. It is up to the Customer to provide any justification as to the reality of the defects or anomalies.

13. Claims- Return Policies

Whether it concerns an apparent defect or a hidden defect, any claim has to mention the references of the order and the corresponding delivery notes in order to be exploitable. It is the Client’s responsibility to provide any justification as to the reality of the non-conformities or defects observed, any verification carried out directly by the Client remaining at his expense.

FAIVRE reserves the right to proceed directly or through any intermediary of its choice, to any observation, verification and examination. Any return of Products must have the prior written agreement of FAIVRE. Any Product whose return is accepted by FAIVRE remains under the responsibility of the Client until it is received by FAIVRE.

14. Warranty – Liability

FAIVRE guarantees to the exclusion of all other guarantees that the Products conform to the accepted order and to the stipulations on the acknowledgement of receipt.
FAIVRE’s guarantee is excluded in case of force majeure.

FAIVRE is not liable for damage resulting from information or data provided by the Client, deterioration or accidents attributable to the Client, modifications made on the Products, non-conforming installation, incorrect use or use that does not conform to the destination of the Products or to basic safety rules, to good practice or to FAIVRE’s indications or recommendations, use of the Products with an apparent defect, lack of or poor maintenance of the Products.

Any intervention by a third party on the Products will result in the exclusion of the warranty.

FAIVRE does not guarantee in any way the industrial, commercial or economic results of the Products and/or their use. In the case of a product’s proven non-conformity, the warranty is limited, at FAIVRE’s discretion, to product replacement or product repair, to the exclusion of any indemnity to the benefit of the Client, the replaced products remaining FAIVRE’s property.

14.1 Limits and exclusions of liability
FAIVRE’s liability is strictly limited to direct material damage caused to the customer as a result of contractual non-performance or FAIVRE’s fault. FAIVRE will not be held liable for any immaterial and/or indirect damage such as: loss of operation, profit, opportunity, interruption of operation, commercial loss, loss of profit, loss of image. FAIVRE is not obliged to compensate for the harmful consequences of faults committed by the Client or third parties in connection with the execution of the contract. FAIVRE’s liability, with the exception of personal injury and gross negligence, is limited to a sum not exceeding the amount invoiced and collected in return for the delivery of the Products recognised as defective.

The Client guarantees that its insurers or third parties in a contractual relationship with it will renounce any action against FAIVRE or its insurers beyond the limits and exclusions set out above.

15. Prices

Unless otherwise stated, the above prices are in Euros and are ex works or FCA (Incoterm 2010), excluding insurance costs, taxes, duties and other charges which are always payable by the Customer. The rate applied is the one in application on the order date and appearing on the order acknowledgement.

The general price list may be modified at any time, subject to one month’s notice, depending in particular on the evolution of the price of raw materials.

16. Payment terms and conditions

16.1 Payment delays

Unless otherwise agreed, payments will be made in the form of a 30% minimum deposit based on the total amount of the order, the balance being paid within 30 days from the issue of the invoice by any payment method at FAIVRE’s head office.

In the case of payment by draft, these must be returned accepted within 10 days of their issue.

Any disagreement regarding invoicing, delivery or any claim does not suspend payment of the invoice. FAIVRE is expressly authorised to set off the sums that it owes the Client against the sums that are due to FAIVRE.

The Client shall not automatically subtract from the amount of the invoice issued by FAIVRE any penalties corresponding to the non-respect of a delivery date, administrative costs for processing the file, non-conformity of the products before we have been able to check the reality of the corresponding grievances.

16.2 Discount

Any early payment shall give rise to a discount of 2% net of tax of the total amount due.

16.3 Late payment

Any delay of payment shall give rise to a late payment penalty by applying to the sums due an interest rate equal to three times the legal interest rate in application in France majored by all legal fees and possible expenses.

Any default of payment shall result in the immediate payment of any sum due not yet paid, including for previous unpaid orders delivered or in the process of being delivered, without prior formal notice.

Any failure of payment, 15 days after a formal notice which has remained unfruitful, will lead to:

the suspension of current orders from the Client or the group of companies to which it belongs,
the automatic cancellation of all orders with the retention of any advance payments received,
the obligation to return the products,
the retention of products already manufactured,
the payment of a penalty equivalent to a fixed indemnity of 15% of the amount due as damages.
All these measures are taken without prejudice to any other damages and interest without FAIVRE being held responsible.

17. New client – Change of client situation

In case of a new client, a non-regular client, or a change in the Client’s situation, in particular in case of doubt as to the solvency of the client, of a payment incident, whatever the order concerned, of exceeding the outstanding amounts guaranteed by the credit insurance, of a change in the legal structure, of the management or ownership of the customer’s capital and more generally the occurrence of any circumstance likely to increase the risk of non-payment, FAIVRE reserves the right, even after partial execution of an order, to demand without prior notice additional guarantees, to request payment before delivery or to cancel the order balance in the name of the customer concerned.

If new payment conditions are not respected or if the requested guarantees are not provided, the execution of current orders may be suspended without any responsibility being imputed to FAIVRE.

18. Retention of ownership clause

FAIVRE keeps the products’ property until the full payment of the price in principal, interest, expenses and accessories has been made. Payment is made when the payment is made in full. The delivery of a bill or any other title creating an obligation to pay does not constitute a payment.

In case the buyer fails to pay any of the due dates, FAIVRE may claim the products and exercise its right of retention on the manufactured products. The Client will be responsible for returning the unpaid products at his own cost and risk after a formal notice by registered letter with acknowledgement of receipt. The right of repossession may be exercised indiscriminately up to the amount still to be paid on all products sold and still in the Customer’s possession.

The customer has to protect their individualisation so that FAIVRE’s ownership can always be proven. The customer undertakes to assign, until payment of FAIVRE’s invoice, all or part of its claims on its own debtors, even if it has to inform the latter about its claim subrogation by FAIVRE, up to the value of the products subject to retention of title. The customer will not pledge or grant any security interest in the unpaid products.

The customer undertakes to insure the products against all risks that they may run or cause upon delivery.

19. Privacy

The parties mutually undertake a general obligation of confidentiality with regard to all oral or written information, whatever the form or medium.

20. Intellectual Property

All intellectual or industrial property rights, as well as the know-how incorporated in the documents transmitted, and the Products delivered remain the exclusive property of FAIVRE. Any transfer of intellectual or industrial property rights or know-how must be agreed.

21. Prescription agreement

In application of the Civil Code article 2254, any claim against FAIVRE relating to the execution of the contract by FAIVRE is prescribed by one year as from the day when the Client knew or should have known the facts allowing him to exercise his rights.

22. Force majeure

In case of a force majeure event, the defaulting party will inform the other party in writing as soon as this event occurs, about the impossibility to fulfil its obligations.

FAIVRE reserves the right to cancel all or part of the orders or to suspend them automatically in the case of a force majeure event. The obligations of the Parties are suspended until the event in question ceases for a period not exceeding one (1) month, at the end of what the contract will be terminated by right.

The following events are considered as Force Majeure, but this list is not exhaustive: shortage of raw materials, total or partial strike at FAIVRE, at the Client, at the transporter, operating accident, machine breakdown, flood, fire at FAIVRE or at a supplier or a major player in the market, embargo, blockage of transport, blockage of public services, natural disasters, flooding, bad weather, storm.

23. Applicable law – Language – Claims settlement

The general terms and conditions, any order of Products and any dispute relating thereto, whatever its nature, are subject to French law.

In case of international relationship, the Vienna Convention of 11 April 1980 is excluded.
In case of dispute, whatever it may be, the parties undertake to meet in order to attempt an amicable settlement.

The initiative for this amicable settlement shall be taken by the most diligent party by sending a registered letter with acknowledgement of receipt.

In the case of a French customer, in the absence of an amicable settlement within one month of this notification, any dispute will be submitted to the exclusive jurisdiction of the Commercial Court of Besançon (25000 FRANCE), even in the case of multiple defendants, appeal for guarantee or summary proceedings. However, FAIVRE reserves the right to refer to any other jurisdiction.
In the case of export sales, and in the absence of an amicable settlement, any disputes that may arise concerning a sale, its execution, its non-execution, or the termination of the relationship between the parties, shall be submitted to arbitration in accordance with the arbitration rules of the Paris Mediation and Arbitration Centre.
In case of translation of these terms and conditions of sale, only the French version shall be binding between the parties.