General sales conditions

General terms of sale

Article 1: Application of general terms of sale – applicability of general terms of sale

These general terms of sale cancel and replace those already appearing in any other document.

These general terms of sale are systematically sent, or handed over, to any client that requests a copy and whose main details appear in the following contractual documents:

- price quotations

• purchase orders,
• order confirmations,
• delivery notes,
• invoices.

Consequently, the act of placing an order implies full and unreserved acceptance by the client of these general terms of sale, to the exclusion of any other documents issued by BROCHOT which shall be regarded as solely for information purposes.

No special terms may prevail over these general terms of sale without formal, written approval from BROCHOT. No condition to the contrary applied by the client, unless it has been expressly approved, shall, therefore, be binding on the vendor, irrespective of when BROCHOT is made aware of said condition.

Should competing texts giving rise to difficulties and, further to express approval from BROCHOT, the parties shall compile a joint general terms of business text, based on these general terms of sale, thereby putting into practice the agreement reached.

Should BROCHOT refrain, at any particular time, from availing itself of any one of these general terms of sale, this may not be interpreted as a waiver of its right to avail itself of any one of said terms at a later date.

If BROCHOT’s client is not the end customer, it shall undertake to inform its own client of these general terms of sale and to take said terms into consideration within the context of its contractual relationships.

Article 2: Contractual documents:


Prices and information of any kind appearing on documents, other than orders, are only for information purposes and do not have any contractual value.

Article 3: Acceptance of reservations

BROCHOT may only be bound by the terms of its express acceptance of a fixed and final order placed by the client, by letter, or any other means of communication resulting in document generation.

In the absence, however, of any response within a maximum of 2 days, the order shall be considered to have been tacitly accepted.

BROCHOT shall respond to orders according to its own capacity to do so.

Reservations of goods shall be considered firm orders and shall be invoiced within a maximum of 6 months from the order date.

Article 4: Order amendment – Cancellation

No order amendments or cancellations requested by the client may be considered unless made in writing, approved by BROCHOT, and received prior to scheduling of the launch of manufacture of the product and, in any event, prior to procurement of the raw materials.

Any order amendment is deemed to be a new order and is, therefore, subject to the validity requirements listed below. Clients cancelling all, or part, of their order or postponing the delivery date, through no fault of BROCHOT, shall be obliged to compensate the latter for all expenses incurred on the date of receipt of the ex-works delivery notice, without prejudice to any direct or indirect consequences that may be experienced by BROCHOT, further to this decision.

Should BROCHOT fail to accept the amendment or cancellation, advance payments can only be repaid in goods to the value of said advance payments.

In the event of cancellation or suspension of a tooling order, a statement of the design and production costs incurred shall be prepared. In the event of cancellation or suspension of an order for products, a statement of costs incurred, in particular, for their manufacture (materials, colorants, accessories, etc.) shall be prepared.

In either case, the client shall be invoiced for the full amount of these costs.

Article 5: Design – testing – developments

Design and testing costs shall be invoiced unless expressly agreed by BROCHOT, including this price in the overall service provision.

Unless contractually agreed otherwise, the sale of products shall not result in the transfer of BROCHOT’s rights of ownership over these production designs to the client.

Likewise for designs that BROCHOT proposes to improve product quality or retail price, by making original changes to the initial specifications. If the client accepts such changes, it shall agree the conditions of their use with BROCHOT, within the context of the order.

In any event, the client may not avail itself of designs, plans, prototypes and documents prepared by BROCHOT which remain under the ownership of the latter. Consequently, they may not be used, reproduced, patented, filed or disclosed to third parties by the client without written authorisation from BROCHOT, even if a portion of the start-up, design or construction costs has been invoiced to the client.

Article 6: Tooling

Tooling comprises:
on the one hand, costs incurred for design and development
on the other, construction costs

The tooling price invoiced to the client only represents tooling construction costs.

Once this invoice has been paid, ownership of said tooling passes to the client and the tooling is then only used to execute orders for this particular client, unless written authorisation to the contrary is given by said client.

Tooling can only be returned once the balance of the client’s account has been settled in BROCHOTs books, including settlement of outstanding invoices, whatever the due dates initially specified.

Financial investment from BROCHOT, or the client, in tooling construction costs shall be the subject of a special agreement.

BROCHOT shall keep all tooling in a good state of repair The cost of modifications or repairs due to normal wear and tear shall be paid for by the client.

Tooling shall be retained, free of charge, for a period of 5 years from the date on which the final order is filled. Once this deadline has passed, if the client has not requested the return of the tooling, or an extended period of storage which may be agreed for a fee, BROCHOT shall be entitled to destroy said tooling, if no response is received, further to formal notification, after a period of 30 days has elapsed.

Tooling not invoiced in full to clients shall continue to be owned by BROCHOT, notwithstanding any portion of the start-up costs for said tooling which may have been paid for by the client. In any event, this investment is acquired by BROCHOT.

Article 7: Implementing procedures

Quantities manufactured and delivered

The client agrees to take delivery of quantities over, or under, the amounts actually ordered due to packing or packaging constraints.

Manufacturing requirements may result in variations in quantity of between 5 and 10 % more or less than the quantity ordered. No complaints shall be upheld in this regard.

Reserved or specific models

The creation, on the client’s behalf, of exclusive models or the manufacture of specific and reserved items at its request, shall result in acceptance of full liability on the part of this client, in particular, with regard to any infringement or unfair competition proceedings. The manufacture of products according to models or tooling supplied by BROCHOT may not be entrusted to third parties without express authorisation.

Article 8: Delivery
Terms:

Delivery is by means of direct handover of the product to the client, either simply by making said product available or by delivery to a shipper or a carrier at BROCHOT’s premises.

A contractual agreement may be reached for a different delivery point.

Within the context of international contracts, delivery is understood to be “ex works” pursuant to international chamber of commerce INCOTERMS (1990).

Unless agreed otherwise, the client shall take possession of the products, at the latest, within 8 days of the ex-works delivery notice.

Once this 8 day deadline has passed, in the event of default by the client, the products are stored at BROCHOT’s discretion and at the client’s own risk, either in its own warehouses, for a maximum of 2 months, or in a transport company warehouse. Storage fees are payable by the client and shall be invoiced. Storage costs shall be invoiced as follows: € ?? per day

Risks are transferred, even in the case of sales agreed carriage paid, once the ex-works delivery notice has been issued.

BROCHOT shall be authorised to make partial deliveries.
Transport

In any event, BROCHOT only performs shipping and transport-related operations in its capacity as the client’s authorised agent. Within this context, the client shall inform BROCHOT of the insurance value.

Products travel, therefore, at the client’s own risk, even if they are shipped carriage-paid.

Consequently, BROCHOT cannot accept liability for damage to, or destruction of, the products being sold, during the different phases of their journey.
Packaging

Product packaging requirements shall be specified at the time of order.

In the absence of any contractual specification, products are packaged in standard packs and packaging and labelling costs shall be paid for by the Client.
Deadlines

Deliveries are only made according to availability.

Delivery deadlines shall only run from the date that the order is confirmed by BROCHOT or, at the earliest, from the date on which all the documents were supplied by the client. The latter must also have fulfilled all the requirements for which it is responsible.

Unless expressly stipulated otherwise, delivery deadlines are given purely for information purposes. In fact, delivery deadlines are shown as accurately as possible but are dependent upon BROCHOT’s procurement and manufacturing capabilities.

Overruns or delays in delivery may not be considered as grounds for cancelling the sale or other orders in progress or as reason for the payment of compensation, of any kind, nor shall it give rise to withholding of payment.

In any event, delivery can only be made if the client is up-to-date in respect of any obligations that it may have to BROCHOT, for whatever reason.

Even if a firm deadline is agreed, BROCHOT cannot accept any liability:

 - in the event of unforeseeable circumstances, force majeure and, more generally speaking, events beyond its control. The following are considered as cases of force majeure thereby exempting BROCHOT from its obligation to deliver: war, rioting, l’incendie, les grèves, les accidents, l’impossibilité pour elle-même d’être approvisionnée.

- if the information to be supplied by the client arrives late or is inaccurate,

- if the payment terms have not been met by the client.

BROCHOT shall inform the client of the circumstances and events listed above.

Any amendment of contractual terms, agreed by BROCHOT, shall result in new deadlines being set.

Unless items are in stock, the client may not, under any circumstances, request that an order be filled in under 15 days, thereby making it impossible for BROCHOT to procure supplies or implement the processes required for the order to be filled.

Article 9: Controls and acceptance testing
Acceptance testing

The client or its receiving clerk shall make any complaints or formulate any reservations to the carrier, within the legal time limits, upon pain of forfeiture of warranty in the event of any damage.
Controls

Should acceptance testing be required, the extent and conditions of said testing shall be established, at the latest, when the contract is concluded.

In any event, these controls and acceptance tests shall be conducted within the context of reference standards, in accordance with the requirements defined by documents and specifications, as decided by the client and accepted by BROCHOT.

In the absence of specifications concerning the controls and tests to be carried out on the products, BROCHOT shall only carry out a simple visual and dimensional inspection.

Where the products are delivered direct to a third party, the client shall be responsible for carrying out checks on products upon receipt or for having said checks carried out by third parties and, in any event, prior to any handling or any other operation.

Article 10: Returns

Any product returns shall be formally agreed by BROCHOT and the client. Any product returned without this agreement would remain at the client’s disposal and would not give rise to issuance of a credit or a credit note.

Products for which the client has obtained a credit note or for which replacement has been agreed by BROCHOT, unless agreed otherwise, shall be returned to the latter with carriage payable on receipt, BROCHOT reserving the right to select the carrier.

Returned goods shall be accompanied by a returns slip and must be in the same condition as when they were delivered by BROCHOT.

Article 11: Warranty

With the client’s agreement, BROCHOT’s warranty consists of:
crediting the client with the value of the products recognised as not conforming to the requirements of contractual specifications or to standard products approved by it.
or of replacing said products free of charge.

Products replaced by BROCHOT shall be the subject of a credit note, replacement products being invoiced at the same price as those replaced.

Replacement of products by agreement between BROCHOT and the client may not result in any changes to the warranty system.

Upon pain of forfeiture of the right to the warranty defined above, the client shall be obliged to report non-conformities as soon as they are discovered and to explicitly request replacement, or bringing into compliance, of the products in question within a maximum time limit running from delivery:
of 8 days for obvious non-conformities
of 1 month for other non-conformities.

Once these deadlines have passed, no complaints can be upheld.

The client is responsible for supplying any proof as to the existence of the faults or anomalies recorded. It shall make it as easy as possible for BROCHOT to ascertain these defects and to provide a solution.

Any work carried out by the client according to its own principles and at its own expense, to bring products into conformity, but without BROCHOT’s approval, shall result in loss of entitlement to the warranty.

In any event, the warranty shall not cover:
damages caused by a faulty product, whilst in use, if the client made the error of bringing said product into service without carrying out all the checks required for its use and for the desired result or without having said checks carried out by a third party.
the cost of recalling these products by the client.
and, generally speaking, any other damage whatsoever.
to dyed buttons, especially those in dark colours, sewn onto a contrasting background of light-coloured fabric. (Dyed buttons, whatever material they are made of, present a risk of staining fabrics. Due to this fact, the company cannot be held liable for costs incurred by this problem).

In any event, BROCHOT’s liability cannot be extended to cover direct or indirect damages that may result at the premises of the client or the recipient as a result of failure to deliver or manufacturing faults.

Since BROCHOT is not automatically informed of the products’ country of destination, the client alone is responsible for the conformity of said products to the legislation of destination or transit countries.

Article 12: Price

The products are supplied at the current price at the time the order is placed. Prices are in Euro and, unless otherwise agreed, are understood to be net, exclusive of tax and ex-works.

BROCHOT price quotes are only binding on the latter for a period of … months from their formulation.

Any duties, taxes, fees or other expenses payable in application of French regulations or those of an importing or transit country shall be paid for by the client.

Article 13: Invoicing

One invoice is drawn up for each delivery and issued at the time of said delivery.

Article 14: Payment
Payment terms:

Payments shall be deemed to have been made to BROCHOT’s registered office.

Payment terms and procedures as well as any advance payments shall be the subject of an explicit agreement at the time of order.

In the absence of such an agreement the payment terms are as follows: by recovered bill of exchange at 30 days from the end of the month.

BROCHOT does, however, reserve the right to demand full payment of the price before any delivery.

The client may not postpone a contractual due date for payment even if the acceptance testing procedure or shipping are delayed or cannot be completed due to force majeure.

Likewise for payment of the difference between the total invoice amount and the price of products, likely to result, as a result of objections from the client, in credits or credit notes that may be granted by BROCHOT.

The client cannot be exempted from paying all or part of a sum owed to BROCHOT, or delay payment of same, as a result of any claims made by it, in particular, under warranty rights, without BROCHOT’s agreement.

In any event, payments may not be offset without prior, written agreement from BROCHOT. Any partial payment shall be charged first against the non-preferential portion of the debt, then against the sums owed the longest.
Guarantee or settlement requirements:

Any change in the client’s position and, in particular, deterioration of its credit rating, may justify the requirement of additional guarantees relating to terms of payment or payment in cash.

This shall, in particular, be the case if there is a change in the debtor’s professional capacity.

Likewise in the event of a reduction of the client’s cover by a Factor or a credit insurance company.

BROCHOT reserves the right, at any time, depending on the risks being run, to set a credit ceiling for each client and to request certain payment terms or guarantees. If the guarantees offered by the client seem insufficient, BROCHOT shall be entitled purely and simply to cancel the contract by registered letter, even in the event of partial performance, or to suspend any order still to be filled.
Late payment or non-payment:

In the event of late payment, BROCHOT may suspend all current orders, without prejudice to any other course of action. Any sums outstanding appearing on the invoice shall incur penalties at a rate of one and a half times the legal interest rate, plus recovery costs and notwithstanding the right reserved by BROCHOT to go to law to obtain compensation for the loss suffered.

These penalties shall be payable simply at BROCHOT’s request.

Without prejudice to the right of reservation of title, failure to return bank accepted bills of exchange within 7 days of sending, failure to meet any payment deadline, serious deterioration in the client’s credit rating, more specifically the discovery of a protest or use of business assets as collateral, shall automatically result, without formal notification, and at BROCHOT’s discretion, in:
either acceleration of the expiry date and, as a consequence, the immediate payability of sums still outstanding for whatever reason and/or suspension of any shipment or production, without prejudice to any other course of action.
or cancellation of all ongoing contracts with retention of advance payments received as well as any tooling and products held by BROCHOT, until the amount of any compensation is set.

Cancellation shall not only affect the order in question but also any earlier orders that have not yet been paid for, whether these have been delivered or are in the process of being delivered and whether or not payment is due.

Payment shall be constituted not simply by remittance of a bill of exchange or a cheque, but by settlement on the agreed due date.

Likewise, where payment is staggered, non-payment of one single instalment shall result in the entire debt falling due immediately, without formal notice being given. In all the aforementioned cases, any sums that may be outstanding for other deliveries, or for any other reason, shall become immediately payable if BROCHOT does not opt to cancel the corresponding orders.

The client shall reimburse any expenses incurred in the recovery of disputed amounts owed, including the fees of a public officer of the state.

In addition, failure to meet any payment deadline whatsoever shall also result in the suspension of any shipment and withholding of any products held.

Finally, any invoice that has to be recovered via litigation shall be liable, by virtue of a non-reducible penalty clause pursuant to Article 1229 of the French Civil Code, of a one-off payment of  …% of the invoice amount.

Please note that failure to meet any payment deadline whatsoever shall damage the client’s credit rating.

Article 15: Reservation of title – transfer of risks

Transfer of ownership is subject to payment, in full, of the invoice issued, pursuant to the provisions of the law of 12 May 1980, relating to the application of the reservation of title clause. Likewise for sales abroad, provided that the right of reservation of title is upheld in the legislation of the country in which the goods are located at the time of the claim.

The risks run or caused by the products shall, however, be transferred in any event to the client as soon as they leave the BROCHOT premises, whichever party is liable for transport costs and charges.

The client, being the transferee of all the risks, undertakes to take out an insurance policy covering the products for the purchase value, against any damage that they may incur until transfer of ownership and designating BROCHOT as the beneficiary.

In addition to the return of products subject to reserved title, BROCHOT may, in the event of the client’s failure to fulfil its payment obligation, notify the latter of the automatic cancellation of the contract, pursuant to the provisions of Article 14.

BROCHOT’s right to retain all, or part, of the advance payments received, as compensation is acknowledged, without prejudice to any additional request for damages.

The client shall ensure that goods can always be identified. Reservation of ownership of the products sold is carried over to the products’ purchase price receivable.  

Products still in the purchaser’s possession are presumed to be products that have not yet been paid for.

In the event of third party seizure, the client is obliged to mention the right of ownership and to notify BROCHOT without delay.

Article 16: Applicable law

This contract shall be governed by:
French law, where BROCHOT is acting in the capacity of sub-contractor
the Vienna Convention of 11 April 1980, on the international sale of goods and, alternatively, by French law, where industrial sub-contracting is not a majority component of the sale.

Article 17: Jurisdiction - disputes

Prior to instituting any legal proceedings, the parties shall attempt to reach an amicable agreement.

In the event of dispute of any kind or objections relating to the formation or execution of orders, only courts in the region of BROCHOT’s registered office shall have jurisdiction, unless BROCHOT prefers to refer the case to any other competent jurisdiction.

This clause applies even in the event of summary procedures, interlocutory applications or multiple defendants or the introduction of third parties, and whatever the payment terms and procedures, any jurisdiction clauses appearing in client documents not posing any obstacle to the application of this clause.

Article 18: Nullity

Partial or total nullity of one of the provisions of the general terms of sale shall not affect the validity of the other provisions.

Article 19: Translation of the text

In the event of the text of these general terms of sale being translated, the French text, being the original, shall be deemed to be the authentic text.