Article 1 - PREAMBLE
Purpose of these conditions of sale (" General Terms and Conditions” or “T&C”) is to define the respective obligations and responsibilities of CLAS Equipements and its clients acting within the framework of professional activity (hereinafter the" Client(s)”) in their pre-contractual and contractual relationships related to the sale of supplies by CLAS Equipements. The term "Supply(ies)" refers to the services, systems, materials and products sold by CLAS Equipements. These T&C are the reference documentation basis of the commercial relationships between CLAS Equipements and Clients. These T&C prevail over the general conditions of purchase of the Client except with the prior and express written agreement of CLAS Equipements. Any waiver to enforce a provision of these T&C shall not be deemed as a waiver of such provision of or any other provision of these T&C. In the event that provisions of these T&C will be considered as invalid by a competent jurisdiction, the other provisions will remain valid. In such case, CLAS Equipements will, at its option, replace, such canceled provision by a valid provision.
Article 2 – GENERAL CONTRACTUAL TERMS
Proposals, offers , including its printed catalog or the same published on its website, or quotes issued by CLAS Equipements are valid only during the period defined by CLAS Equipements and are governed by the present T&C supplemented or amended by Special Conditions (see below). The Client remains solely and fully responsible for the use of the Supplies even when information, advice or drawings have been communicated to him by CLAS Equipment . Since the Supplies are sold by the Client to an end user ("User"), such Client warrants (i) to sell them only to professionals and (ii) to provide all the information, advice and CLAS Equipments’ scheme that this latter will have communicated to him and (iii) will not be released of its own obligations. The Client will ensure that all its obligations under these T&C will be, under his own responsibility, a minima, transferred and assigned to the User so that, this latter, will be able to benefit of the contractual warranty (“CLAS Warranty”) detailed in these T&C). In this regard, it is specifically the Client and the User responsibilities, as professionals by nature, to check this information, advices or drawings provided by CLAS. In case of any doubt, Client/ User shall contact CLAS Equipements. The absence of request sent to CLAS Equipements at following website address https://www.clas.com/en/contact-us at section service contact “S.A.V”, implies a full understanding of the conditions of use of the Supplies. The User shall attach with the request sent to https:// www.clas.com/en/contact-us a written copy of the invoice provided by Client to justify the purchase of the Supply. In case CLAS Equipements answers to such a request despite absence of an invoice sent by the User, it shall, in no circumstances, be considered as an implicit acknowledgment of granting rights to this User.
Article 3 - FORMATION OF THE CONTRACT
Any order must be subject to a written order from the Customer, including via email or dematerialized form via his customer account accessible on the www.clas.com website. In this case, the GTCU (https://www.clas.com/en/gtc) applies in addition to the GTCS. It shall ensure the complete references of the Supplies and the related quantity are indicated or it shall refer explicitly to a quote or a proforma invoice issued by CLAS Equipements without any modification. In any case, CLAS Equipements will make its best efforts to send a definitive acknowledgment of receipt of the order within one working day, which will be the final binding document. This acknowledgment of receipt may take the form of a letter, email or fax. In the absence of acknowledgment of receipt of the order, the initial offer issued by CLAS Equipements will be the contractual basis between the Parties., unless they expressly agree in writing to derogate. Any purchase order with reference to its conditions of purchase or on the back of its printed order form sent or communicated by the Client to CLAS Equipments shall not be deem as an acceptance of such purchase conditions by CLAS Equipements. Furthermore, without any limitation, incomplete or incorrect information sent or communicated by the Client, could generate misunderstanding or errors preventing CLAS Equipements in the execution of the order and it could not be attributed to CLAS Equipements. Some orders are subject to prior opening of a client account, for instance, for orders related to the online catalog on the website www.clas.com . CLAS Equipements may decide, at its option, not to agree to such a request to open a client account or not wish to enter into a contract with the Client for any legitimate reasons it may have, such as, the non-coverage of the contract by a sustainable credit insurance, the inadequacy of the Client's commercial practices with CLAS Equipements’ policies, without any right for the Client to claim any compensation whatsoever. The terms and conditions hereof may be subject to specific terms and conditions " Special conditions". These Special conditions will be decided by CLAS Equipements at its option by any mean, such as, in each dedicated Client account on the website www.clas.com . These particular terms and conditions may derogate from the present T&C on several topics :
- Discount on Catalog Prices
- Shipping costs
- Specific payment terms
Orders placed by the Client from its Client’ account may therefore include Special Conditions and therefore orders for Supplies will be governed by the present T&C supplemented by the Special Conditions.
Article 4 - SUPPLIES CLAS
Equipements’ Supplies are exhaustively listed in the pre-contractual documents (catalog, proforma invoice ...) or contract (acknowledgment receipt ...). It is the responsibility of the Client to ensure, taking into account the characteristics of the Supplies, that they correspond to its needs, in particular with respect to the technical specifications. The Client must ensure that all material and organizational conditions are met to enable the satisfactory and safe implementation and use of the Supplies, such as trained and qualified personnel to use the Supplies, a proper environment (premises, air conditioning, fluids, protections ...). Client is aware and informed that CLAS Equipements headquarter is located in France and so the Supplies comply with the laws and regulations in force in France. When the Supplies must comply with local standards of the place of use, in particular for safety, other than a French or European technical standard to which CLAS Equipements declares to comply, the Client shall assume all the consequences resulting therefrom and CLAS Equipements shall not be held responsible in particular for incidents occurring during their use. The Client hold and harmless CLAS Equipements for any consequences that may result from his own omissions or negligence.
Article 5 - CHANGES
Any modification of the contract which would be requested by the Client, after its conclusion, will have to be expressly accepted by CLAS Equipements in writing with the express intent to derogate. Any request for modification of the contract shall not be taken into consideration when it comes after Supplies’ shipment. Any request for modification of the order by the Client will be the subject of a new proposal from CLAS Equipements. In case of refusal of modification by CLAS Equipements or disagreement of the Client on changes of any kind (technical or financial) related to a change request, CLAS Equipements will deliver the Supplies in the conditions and according to modalities identified in the original contract. No termination, suspension or termination of the contract by the Client may take place without the express, prior written consent of CLAS Equipements, and under conditions that Client will indemnify this latter from any harmful consequences.
Article 6 - PRICE - PAYMENT TERMS
Except in the case of Special conditions stated in the contract, the prices of the Supplies sold are those listed in the catalog or price list in force when order is issued and / or, where applicable, in the specific commercial proposal sent to the Client, for the duration stated on these documents. These prices are firm and definitive. They are expressed in Euro, net and without VAT. Price are provided on ex-Works incoterm basis (EXW - ex works - Incoterm CCI 2010) at CLAS Equipements headquarter with standard packaging. In any case, they do not include the costs of loading and unloading, transportation, customs, if any, and insurances remain Client responsibility. Any particular special request, especially for sales outside France mainland, shall be subject to a specific offer of CLAS Equipements that derogates expressly. In any case any customs fees, and insurance will remain the exclusive responsibility of the Client. CLAS Equipements reserves the right to change prices at any time by giving prior written notice of thirty (30) calendar days. Invoices are owed on the due date stated on the invoice and / or commercial proposal. The contrats entered between CLAS Equipements with a Client whose registered office is located in France mainland with provision of Supplies in France mainland, will be paid by bank transfer or by check within thirty (30) days end of month from the availability of Supplies or performance of the services by CLAS Equipements.
The contracts between CLAS Equipements with a Client whose headquarter are located outside France mainland with a final destination of Supplies out of France mainland, will be billed prior the availability of the Supplies and such invoice shall be fully paid before CLAS Equipements will inform the Client of disposal of said Supplies. These terms apply regardless of the incoterm chosen. All other terms of payment shall be prior agreed in writing between CLAS Equipements and the Client. The payment deadlines shall not be delayed, and the Client is prohibited from applying debits notes or compensation without the express prior written consent of CLAS Equipements. CLAS Equipements reserves the right to demand the payment of the Supplies on the date of acknowledgment receipt of the order by CLAS Equipements (cash payment) (i) if the financial situation of the Client requires to do it, or (ii) if the Client has not paid all or part of the amounts due in previous order, or (iii) no sufficient guarantee of complete payment has been given by the Client. In case of refusal by the Client of these modalities of payment without any sufficient guarantee being proposed by this latter, CLAS Equipements may, at its option, refuse any order from this Client. Indeed, the parties will have not been entering into any agreement. Thus, no Supply will be delivered, and Client will not being able to claim any compensation of any kind whatsoever. CLAS Equipements publishes its catalog once a year and therefore the Supplies may in the meantime be subject to variations in (i) exchange rates as well as (ii) customs duties and/or transit fees, borne by CLAS Equipements. Therefore, CLAS Equipements reserves the right to pass these variations on the selling price of the Supplies. Before any order confirmation the Client will be notified of such changes. In case of changes due to unpredictable circumstances at the date when the parties entered into the contract, if such changes make the execution excessively burdensome for CLAS Equipements that this latter had not approved at this time to assume such risk, CLAS Equipements shall have all rights to request to renegotiate the contract with the Client. In the event of refusal or failure of the renegotiation, the parties may agree to terminate the contract at the date and under the conditions they determine, or by mutual agreement, to request a Court to adapt it. Failing to do so within a reasonable time, the Court may, at the request of a party, revise or terminate the contract at the date and according to the terms it determines. The Parties expressly agree that the failure to pay on the due date of any payment term shall have automatic effect, without prior notice, to execute (i) the immediate payment of any other invoice, whether due or not due, even if a bank draft has been issued, and (ii) at the discretion of CLAS Equipements, either the suspension of deliveries or the prepayment of any order in progress. CLAS Equipements, reserves the possibility, in case of default of the Client and after formal notice remained unsuccessful for thirty (30) days, to cancel orders not yet executed. Any amount not paid at the due date by a Client whose headquarter is located in France shall pay a lump sum compensation for recovery costs of forty (40) euros and late penalties equal to the rate applied by the European Central Bank (ECB) plus ten (10) percentage points. When the headquarter of the Client is located outside France any outstanding amount not paid at due date will generate the payment by the Client of a lump sum compensation for recovery costs of one hundred (100) euros and extra late penalties as defined above. The reference rate of the ECB is applicable on 1st of January for the first half of a calendar year and on 1st of July for the second half of a calendar year. These penalties are automatically due and will automatically be withdrawn from the Client's account.
Article 7 - DELIVERY - TRANSFER OF RISKS
The delivery of the Supplies shall take place in accordance with the terms and conditions set out in CLAS Equipements' proposal and in accordance with Article 6 of these T&C.. Thus, once the delivery is carried out in accordance with Article 6 (Ex-Works), the Client acknowledges that the carrier is responsible for the transportation of the Supplies. Therefore, Client has no right to request for damages compensation or penalties to CLAS Equipements, in case of failure to deliver the Supplies and / or damage to the Supplies during shipping. If the Client does not collect the Supplies within one (1) month of the sending of a written notice of availability of the Supplies, the storage and security costs may be charged to the Client by CLAS Equipements. If the parties have expressly agreed to derogate from the terms of Article 6 and so, that CLAS Equipements will assume the delivery of the Supplies, in such case, the delivery time is given for information only and without guarantee, whatever the incoterm chosen. Exceeding these deadlines shall not authorize Client to any deductions or indemnities against CLAS Equipements. In case of delay exceeding 4 weeks in France mainland, and 8 weeks outside France mainland, the Client may request the cancellation of the order. The installments already paid will be credited back to Client by CLAS Equipements. It is expressly agreed that deliveries outside France mainland may be made by fraction. Therefore, in such case, the acceptance by the Client of these new terms, implies that this latter shall not request the resolution of the Order since he will have accepted other terms with all the consequences that it could generate against him. The deadlines agreed are also legally suspended by any event beyond CLAS Equipements control, especially in case of force majeure, as defined in Article 8 of these T&C and resulting in delaying delivery. Thererfore, CLAS Equipements will not be responsible in case of delay or suspension of the delivery of the Supplies. As soon as the Supplies are at the disposal of the Client, risk of loss and damages are transferred to this latter. In any event, delivery of the Supplies can only occur when the Client has fulfilled all its obligations with respect to CLAS Equipements.
Article 9 - RESERVATION OF TITLE
The transfer of ownership of the Supplies by CLAS Equipements to the Client is subject to full payment of the price in principal, costs and interests. The Client shall refrain from (i) any transformation, incorporation or assembly of the Supplies before its full payment, and (ii) selling or pledging the Supplies until the property has been transferred to this latter. The Client shall immediately inform CLAS Equipements of the seizure, requisition or confiscation of the Supplies for the benefit of a third party, and shall inform the third party creditor of the existence of this retention of title clause for the benefit of CLAS Equipements. In the event of non-payment of the full price in principal, costs and interest on the due date, CLAS Equipements may (i) require at any time the return of the Supplies sold, at the expense and risk of the Client and (ii) decide the resolution of contract with notice sent by any means and without further formality, without prejudice of any damages that may be claimed by CLAS Equipements. In this case, the Client authorizes CLAS Equipements and his carrier, to enter during the working hours in the premises where the Supplies are located and to remove them. The Client agrees that all the Supplies acquired from CLAS Equipements shall remain easily identifiable in its premises. These provisions do not prevent the transfer of the risks of loss and deterioration of the Supplies in the conditions of Article 7 of these T&C. Subject to applicable law in force, in the event of the opening of insolvency procedure for recovery or liquidation, orders in progress will be automatically resolved, and CLAS Equipments reserves the right to claim the Supplies in stock at Client premises. In case the Supplies will be sent back to CLAS Equipments, the amounts paid, total or partial, shall be retained by CLAS Equipements as compensation.
Article 10 - CONTRACTUAL WARRANTY
This contractual warranty ("CLAS Warranty") applies only to the Supplies sold by CLAS Equipements to the Client, who may transfer them to the User provided that the Client meets or request User to meet the following conditions. The CLAS Warranty does shall apply to the User under the following conditions: - User is a professional of after-market automotive sector, - User is able to demonstrate that the Supplies for which it requests the application of the warranty have been billed by a CLAS Equipements’ Client. These conditions specific to the User are cumulative with the other conditions and terms of the CLAS Warranty below. Each Supply of CLAS Equipements has a pictogram that indicates the duration of the contractual warranty or not of the Supply (" N O ", 2, 3, 4, 5 years, etc ...). This information is available on the website www.clas.com and on the CLAS Equipements catalog. The warranty period is limited to the time indicated by the pictogram "CLAS Warranty” from the date of delivery to the User by the Client. Are excluded from any “CLAS Warranty”, Supplies categorized as consumables identified by the pictogram " N O ". 10.1 - Non-conformities of the Supplies covered by the CLAS Warranty CLAS Equipements warrants the Supplies for the nonconformities resulting from a defect within the limits of the technical and contractual specifications of the Supplies and within the limits of the provisions hereafter. CLAS Warranty applies only to the Supplies entering into the scope of a contract between CLAS Equipements and a Client, and with the exception of Supplies provided by CLAS Equipements in the frame of such contract but not invoiced for whatever reason. Since Supplies would have been sold by User to a third party, CLAS Equipements will not provide any longer CLAS Warranty for such Supplies. CLAS Equipements will decide, at its option, of the modalities of application of said CLAS Warranty limited to the repair or replacement of the Supplies. Repair or replacement will not extend the initial time allowed by the CLAS Warranty. CLAS Warranty period starts on the date of possession by either the Client or the User, depending on who requests it. CLAS Warranty will not apply when: - non-conformities are the result of products or parts used by the Client / User with the Supplies - an intervention of a third party occurred on the Supplies sold by CLAS Equipements, - non-conformities relating to unexpected events or force majeure and for any replacements or repairs resulting from accidents, abrasion, corrosion, normal wear and tear of the Supplies, deterioration resulting from negligence, defective supervision or maintenance and defective use of the Supplies, - use in abnormal conditions or for operations and / or with unforeseen elements, lack of qualification or experience of the personnel, - bad storage conditions of the Supplies delivered, - bad installation or not in accordance with the state of the art (bad connection, defective power supply) of Supplies. 10. 2 - Client Obligations Application of CLAS Warranty requires Client / User will provide all evidences allowing CLAS Equipements to assess the root cause of the non-conformity subject to this warranty. Client shall provide all written justifications to support the alleged root-cause. The absence of evidences provided within 3 calendar months of the initial CLAS Warranty activation will terminate CLAS warranty and so the related CLAS Equipements’ obligations. CLAS Equipments could, at its option, refuse the application of the CLAS Warranty in case of non-payment by the Client of all amounts or part of any order. In such case, Client shall be fully responsible of Users' requests in this respect and CLAS Equipements will be entitled to ask compensation to Client if the User's requests cause any damage to CLAS Equipements. Application of this CLAS Warranty implies that any Supplies sent back to CLAS Equipements must be prior agreed by this latter by an express prior written consent and, in such case, it will be done at sole Client's expenses. Any costs supported by CLAS Equipements in respect of the CLAS Warranty that are finally not covered by CLAS Warranty shall be borne exclusively by the Client / User. Upon receipt of the Supplies, the Client is required to check the good condition and quantity of the Supplies delivered. In this context, the Client must inform CLAS Equipements, within forty-eight (48) hours from receipt of the Supplies by the Client/User, of any detailed reservations this latter may have. After this period, no claim, of any nature whatsoever, relating to apparent non-conformity, will be accepted by CLAS Equipements. It is the Client responsibility to manage the requests of Users on this basis, a minima, according to the same conditions as CLAS Equipements, knowing that any deviation with Users will be Client’ duty. 10.3 Damages CLAS Warranty is strictly limited to the obligations defined above and it is expressly agreed that CLAS Equipements will not be bound by any other compensation, damages or interest of any kind.
Article 11 - OTHER WARRANTIES
CLAS Equipment undertakes to warrant the Supplies, in addition to the CLAS Warranty of Article 10, only in case of mandatory applicable warranty of the law and according to the applicable law in accordance with the terms of Article 15.
Article 12 - RESPONSIBILITY
In no event shall CLAS Equipements be liable for indirect and / or immaterial, consequential or non-consequential damages resulting from the performance of its obligations under the contract, for example, without being exhaustive, loss of incomes, loss of profits, operating losses, any business troubles, knowing that the Client and his insurer waive any recourse against CLAS Equipements and its insurers. In any circumstances, the overall and cumulative liability of CLAS Equipements will not exceed, the total amount paid to CLAS Equipements under the order or contract concerned by Client.
Article 13 - INTELLECTUAL PROPERTY
Quotations, proposals, catalogs and globally all the documents delivered or sent by CLAS Equipements to the Client, as well as the related intellectual property rights, are and remain the exclusive property of CLAS Equipements or under licensed, even though the Client has been asked to contribute to the costs. In no event these documents may be reproduced without the prior written consent of CLAS Equipements. This provision survives the expiration of the order or contract. It is understood that the Client will have no intellectual property rights relating to the Supplies except with the express and written agreement of CLAS Equipements. The Client warrants that the User will hold and harmless CLAS Equipements from any claim or infringement claim that may be made against this latter by reason of a combined use of the Supplies with another product constituting as a whole an infringement of the intellectual property rights of third parties. In addition, the Client shall indemnify CLAS Equipements of all harmful consequences that could arise from this situation.
Article 14 - ASSIGNMENT
The contract is concluded intuitu personae according to the person of the Client and shall not be transferred without the express, prior and written acceptance of CLAS Equipements.
Article 15 - APPLICABLE LAW - JURISDICTION
By express agreement between the parties, these T&C are governed :
(1) between CLAS Equipements and the Client whose headquarter is in France by French law and, as a supplementary, by the Vienna Convention on the International Sale of Goods, or,
(2) between CLAS Equipements and the Client whose headquarter is outside France, by Swiss law, and, as a supplement, by the Vienna Convention on the International Sale of Goods.
These conditions are available in French. In the event that they are translated into one or more languages, and in the event of contradiction or discrepancy between the French version and the translation in any other language, the French version will prevail over the translated version. All disputes related to these T&C about validity, interpretation, execution, termination and/or consequences will be submitted :
(1) provided that the Client has its headquarter in France, to the competent public jurisdiction of the CLAS Equipements headquarter in Chambéry (France).
(2) provided that the Client's headquarter is located outside France, shall be decided by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers' Arbitration Institution in force on the date on which the notice of arbitration is filed in accordance with this Regulation.
a. The number of arbitrator is: one;
b. The seat of arbitration shall be Geneva (Switzerland);
c. The arbitration language will be in French. d. The defendant shall submit to the Secretariat a reply to the notice of arbitration, as well as, any counterclaim or means of compensation, within fifty (15) days from the date on which it receives the notice of arbitration. The deadline for the appointment of an arbitrator will be fifty (15) days. If the circumstances required, the Court may modify these time limits. The expedited procedure will apply, and the dispute will be decided solely on documentation. e. Parties may also decide at any time to submit the dispute to mediation under the Swiss Rules of Commercial Mediation of the Swiss Chambers' Arbitration Institution.