1 – SCOPE
This document defines the general terms and conditions (hereinafter “GTC”) that govern and apply automatically to the provision of services and/or products by AX GROUP, a simplified joint-stock company (SAS) registered with the Trade and Companies Register of DUNKERQUE under number 502 349 590, whose registered office is located in France, 135 ALLEE DES PRELES, 59270 BAILLEUL (hereinafter referred to as “AX GROUP”) to any company acting for its professional purposes (hereinafter referred to as the “Customer”). The GTC are applicable subject to any amendments and/or derogations that AX GROUP and the Customer (hereinafter jointly referred to as the “Parties” or individually as the “Party”) may agree, exclusively in writing. Prior to the date of acceptance of the Order, the GTC have been made available to the Customer. Any Order implies unreserved acceptance of the GTC, which prevail over all other terms and conditions, including the Customer’s terms and conditions of purchase. In accordance with the provisions of the Commercial Code, the GTC form the basis of negotiations between AX GROUP and the Customer (hereinafter referred to collectively as the “Parties” and individually as the “Party”). The GTC supplement the mutual intent of the Parties and supersede any contrary clause formulated by the Customer unless AX GROUP has accepted it in writing.
2 – COOPERATION
The performance of the GTC and Orders as defined in Article 4 of the GTC requires cooperation between the Parties. This cooperation is based on the Customer defining all of its needs and the desired outcome and communicating them in full to AX GROUP. The Customer is required to provide complete, accurate, and reliable information and details, not only regarding its needs, operating conditions, and environment, but also regarding the specific characteristics of the products and processes that it will be handling with the equipment and/or services covered by the Order. Under no circumstances may AX GROUP be held liable for any error, in particular of design or manufacture, which is the result of a defect in the plans, documents or information provided by the Customer or of the Customer’s failure to provide specific information relating to the Order. The Customer acknowledges that it remains solely responsible for the quality and updating of all information and data provided to AX GROUP for the purpose of executing the Order. This cooperation also applies to the design, manufacture and commissioning phases of the equipment. In this respect, the Customer acknowledges and accepts that AX GROUP is not bound by any guarantee of industrial or economic results, unless such an obligation has been expressly and clearly stipulated in a specific agreement signed by the Parties. Furthermore, any changes to the operating conditions that may be necessary following the introduction of the equipment covered by the Order into the Customer’s operations shall be borne by the Customer. If the Customer imposes the choice of a component or brand of components or a specific technical solution, AX GROUP shall not be liable for this choice and shall act as the Customer’s agent. When the products and/or services are the subject of an Order without special quality conditions, the Customer may not demand anything other than the usual quality with the usual tolerances.
3 – INTELLECTUAL PROPERTY
All plans, studies, descriptions, technical documents or estimates provided to the other Party are communicated on a loan basis for the purpose of evaluating and discussing AX GROUP’s commercial offer and executing the Order. They may not be used by the other Party for any other purpose or communicated to a third party without the prior consent of AX GROUP. AX GROUP retains all material and intellectual property rights to the documents loaned. These documents must be returned to it upon first request. AX GROUP shall retain full ownership, both material and intellectual, of the projects, studies, plans, and documents of any kind that it provides to the Customer before or after the conclusion of the Order, whether or not the Order is concluded. The Customer shall refrain from executing them or making copies of them, even for its own use, and shall also refrain from communicating them to any person. The Customer is responsible for ensuring that its staff and service providers comply with these obligations. Furthermore, AX GROUP’s studies that significantly modify the specifications and result in an improvement in the use value of the items in the Order remain its exclusive property and may not be communicated, executed or reproduced without its written authorization. Nothing in the GTC grants or confers to the Customer any intellectual property right or license over the items covered by the Order or any intellectual property right and/or industrial property right held by AX GROUP, unless expressly agreed otherwise in writing by AX GROUP. As such, payment for studies does not entail any transfer of any intellectual property right to the Customer. Any transfer of intellectual property to the Customer shall be subject to a separate written contract, where applicable.
4 – ORDER AND PRICE
Any proposal or offer made by AX GROUP for the supply of services and/or products or equipment to the Customer and any resulting Purchase Order or contract shall only be final and binding after written acceptance and/or acknowledgment of receipt by AX GROUP (hereinafter the “Order”). The Parties acknowledge that the Order is governed exclusively by the following contractual documents: the Order accepted by AX GROUP, any special conditions agreed between the Parties, and the GTC. In the event of any contradiction between the provisions of one or more contractual documents, the order of priority shall be as set out above. Consequently, and as specified in Article 1 of the GTC, any Order implies the Customer’s acceptance of the GTC and waiver of its own terms and conditions, including but not limited to its general terms and conditions of purchase. Unless otherwise specified, AX GROUP’s offers and quotes shall remain valid for one (1) month. The Order may not be canceled or modified for any reason whatsoever, except with the express agreement of AX GROUP. In the event of cancellation and/or termination, the Customer shall compensate AX GROUP for all costs incurred (studies, purchases, manufacturing, assembly, etc.) as well as for all direct and indirect consequences thereof, without prejudice to damages. In addition, any deposit already paid shall be retained by AX GROUP. If the delivery date of the Order is postponed by the Customer by more than three months from the date initially specified in the Order, an increase of 0.4% of the price per month of delay shall be applied to the price of the Order. An Order must be for a minimum amount of €150.00 excluding tax. However, if AX GROUP accepts an Order for a lower amount, the Customer agrees that administrative costs of €55 will be applicable. Unless otherwise specified between the Parties, the following are not included in the Order: (i) All temporary work, devices and equipment enabling access, handling and maintenance of the equipment described in the offer (ii) All civil engineering work (iii) All power supplies for AX GROUP cabinets (iv) Any dismantling of equipment not described in the offer (v) The participation of the project manager in site meetings (vi) Checking the condition of the building, depending on the transfer of costs related to the equipment (vii) Unloading the equipment at the Customer’s site (viii) Inspection office costs (xi) Pro rata and inter-company account costs (x) In general, anything not explicitly described in the Order is excluded from AX GROUP’s services. All such additional work and commitments must be the subject of an amendment setting out the prices and deadlines before work commences.
5– DELIVERY TIMES
Unless otherwise specified, delivery times shall commence on the date of final acceptance of the Order by AX GROUP, subject to payment of any deposit required by the Customer. The contractual delivery times specified in the Order do not include annual maintenance closures, namely the first three weeks of August and Christmas week. In the event of a delay in delivery of an Order that is not attributable to AX GROUP, the latter reserves the right to invoice the equipment available and scheduled for delivery under the Order. AX GROUP shall be automatically released from any commitment relating to the contractual deadlines in the event of non-performance by the Customer of its obligations under the Order and the application of the GTC, in particular if the payment terms have not been met, if the elements necessary for the execution (design and installation) of the Order have not been provided on the correct date or in the event of Force Majeure as defined in Article 10-2. In the event of penalties provided for in the Order by the Customer, these shall be lump-sum, in full payment and shall necessarily exclude any other penalty. The total amount of penalties for late delivery of the Order shall be capped at 0.5% per month of the price of the Order and may not exceed 10% of the price of the Order.
6 – ASSEMBLY AND ON-SITE INTERVENTION
When on-site intervention is provided for in the Order, the Customer undertakes to ensure that AX GROUP has access to the site, to provide it without delay with all access authorizations and site regulations, and to inform it of all obligations arising from the application of regulations concerning the intervention of companies on the site. The Customer must provide the facilities and services (in particular a lockable room for the safe storage of equipment and tools during the assembly period, amenities, utilities, etc.) necessary for the proper performance of the services covered by the Order on site. The assembly of the installation is scheduled on working days and during normal working hours, unless otherwise specified in the Order. In the event that, for reasons beyond the control of AX GROUP, a work stoppage requires the withdrawal of the assembly teams, the additional travel expenses of these teams will be invoiced to the Customer as an extra charge. Similarly, any delay in AX GROUP’s intervention resulting in night or weekend work will result in additional charges. If a change to the schedule occurs less than eight (8) days before the scheduled date of intervention, a penalty equivalent to one day’s work by the team will be invoiced to the Customer. Finally, the Customer acknowledges and accepts that any change to the schedule that is not attributable to AX GROUP will result in a renegotiation of the date of intervention and, where applicable, the associated costs.
7 – TESTS, ADJUSTMENTS, AND ACCEPTANCE
7.1 – Tests
Tests or trials of the products and/or services ordered may be scheduled at AX GROUP or at the Customer’s site. In this regard, the Customer shall provide AX GROUP, at its own expense, with all materials, energy, and competent personnel in sufficient numbers as may be necessary for such tests.
7.2 – Technical assistance, maintenance
Upon commissioning, the maintenance and servicing of the equipment covered by the Orders shall be the responsibility of the Customer. The Customer must carefully read the technical instructions before using the equipment covered by the Order. Unless otherwise specified in writing in the Order, no training required for the use of the Order by the Customer’s personnel (production or maintenance) is included in the Order. Such training shall be at the Customer’s expense.
7.3 – Receipt of equipment
Transport, insurance, customs, handling, and unloading of the Order are at the expense, cost, and risk of the Customer. It is the Customer’s responsibility to check the conformity of Orders shipped upon arrival and, if necessary, to take any action against the carrier and to issue any reservations within the time limits set out in Article L.133-3 of the French Commercial Code. If the shipment of the Order is delayed in relation to the delivery times specified in the Order, for any reason beyond the control of AX GROUP, AX GROUP reserves the right to charge the Customer for the storage costs of the Order from the fifteenth (15th)day of delay in shipment. The products and/or services provided by AX GROUP under the Order shall be subject to mutual acceptance formalizing the Customer’s acceptance, as recorded in a written report at the time of direct delivery to the Customer. Failing this, the products and/or services of the Order shall be deemed to have been accepted, even in the absence of a report, and in accordance with the Incoterm provided, on the first of the following dates: (i) direct delivery to the Customer (ii) seven (7) days after delivery of the product or completion of the services covered by the Order, (iv) the day of the first use of the Order by the Customer. Without prejudice to the measures to be taken vis-à-vis the carrier, the Customer’s complaints regarding apparent defects or non-conformity of the Order must be made in writing within seven (7) days of receipt at the site of use of the Order, subject to a maximum period of thirty (30) days from the date of shipment of the Order. The Customer understands that it is their responsibility to provide any justification for the reality of the defects or anomalies found. The Customer undertakes to enable AX GROUP to verify these defects and to remedy them appropriately. The Customer shall refrain from intervening itself or involving a third party for this purpose without the prior written consent of AX GROUP. If the equipment covered by the Order is put into service in whole or in part or used by the Customer, acceptance shall be deemed to have taken place without reservation on the day of such commissioning, unless otherwise notified by AX GROUP.
7.5 – Deadlines for validation of contractual documents
Where the terms of the Order provide for the supply of documentation by AX GROUP (plans, technical documentation, user manual, etc.), the Customer shall have a period of two weeks to validate it or make any comments. Beyond this period and in the absence of any feedback from the Customer, the documentation shall be deemed to have been validated and no requests for changes shall be taken into consideration.
8 – PAYMENT
8.1 – Terms of payment
The payment deadlines and terms will be specified in the Order. For bank transfers, the Customer shall discharge itself of the amounts due by crediting the AX GROUP account specified on the invoice. The payment deadlines agreed by the Parties may not be postponed for reasons not attributable to AX GROUP, even if the event giving rise to the deadlines in question is postponed. In the event of disagreement over part of the invoice, the Customer undertakes to pay the undisputed part without delay.
8.2 – Payment terms
The provisions of the French Commercial Code limit any contractually agreed payment period to 60 days net from the date of issue of the invoice. The contractually agreed payment dates may not be unilaterally changed by the Customer for any reason whatsoever, including in the event of a dispute. Advance payments for Orders shall be made without discount unless otherwise agreed. In the event of payment by draft, the draft must be received by AX GROUP no later than ten days before its due date.
8.3 – Late payment
In accordance with the provisions of the French Commercial Code in force, any delay in payment of an Order shall give rise, from the first day of delay, to: (i) the application of interest on arrears equal to the most recent refinancing rate of the European Central Bank plus ten (10) points (ii) the application of a lump-sum compensation for recovery costs in an amount set by decree and currently forty (40) euros; (iii) where the collection costs incurred exceed the amount of this fixed compensation, additional compensation, upon justification. If the shipment of the Order is delayed due to late payment, AX GROUP reserves the right to charge the Customer for the storage costs of the Order from the fifteenth (15th) day of delay in shipment as referred to in Article 7.3 of the GTC. Any delay in payment of a due date shall also entitle AX GROUP, at its discretion, to terminate the contractual payment term, with all sums due becoming immediately payable. The Customer further undertakes to assign to AX GROUP, at any time and upon simple request, its own claims resulting from the resale of the Order executed by AX GROUP. The fact that AX GROUP invokes one or more of these provisions shall not prevent it from exercising the retention of title clause stipulated in Article 9.
8.4 – Change in the Customer’s situation
In the event of a deterioration in the Customer’s situation as determined by a financial institution or evidenced by a significant delay in payment, or when the financial situation differs significantly from the information provided, delivery of the Order will only take place upon receipt of payment. In the event of the sale, transfer, pledging or contribution to a company of its business or a significant part of its assets or equipment by the Customer, AX GROUP reserves the right, without prior notice: (i) declare the term expired, with the result that all sums still owed by the Customer to AX GROUP for any reason whatsoever in connection with the performance of the Orders and/or the GTC shall become immediately payable; (ii) suspend all shipments of Orders; (iii) declare, on the one hand, the termination of all contracts and/or Orders in progress and, on the other hand, retain any deposits received and any items held until compensation is determined at the discretion of AX GROUP.
9 – RETENTION OF TITLE
AX GROUP RESERVES OWNERSHIP OF THE GOODS SOLD UNDER ORDERS UNTIL THE DATE OF FULL PAYMENT OF THE PRINCIPAL AND ANY ADDITIONAL CHARGES. ONLY THE ACTUAL ENCASHING OF CHECKS, TRANSFERS OR COMMERCIAL INSTRUMENTS SHALL CONSTITUTE PAYMENT. FAILURE TO PAY ANY OF THE INSTALMENTS MAY RESULT IN THE RECOVERY OF THE GOODS. HOWEVER, FROM THE DATE OF AVAILABILITY, THE CUSTOMER ASSUMES THE RISKS OF LOSS OR DAMAGE TO THIS EQUIPMENT AND IS LIABLE FOR ANY DAMAGE IT MAY CAUSE. IN THE EVENT OF A CLAIM, ANY DEPOSITS ALREADY PAID SHALL REMAIN THE PROPERTY OF AX GROUP AS COMPENSATION, WITHOUT PREJUDICE TO ITS RIGHT TO OBTAIN FULL COMPENSATION FOR ITS LOSS.
The transfer of risk for the products covered by the Orders, even in the case of agreed carriage paid delivery, takes place upon dispatch from the AX GROUP workshops. As a result, the products travel at the Customer’s risk, and in the event of damage, loss or shortage, it is the Customer’s responsibility to make all reservations or exercise any recourse against the carriers responsible, within the strict time limits provided for by the provisions of the Commercial Code.
10 – UNFORESEEN CIRCUMSTANCES AND FORCE MAJEURE
10.1 – Unforeseeable circumstances
In the event of an event beyond the control of the parties that compromises the balance of the contract to the point of making it detrimental to one of the Parties to perform its obligations, the Parties agree to negotiate in good faith to amend the contract and/or the Order. This includes, in particular, the following events: changes in the price of raw materials, changes in customs duties, changes in exchange rates, changes in legislation. In the absence of agreement, the Parties shall refer the matter to the President of the Commercial Court of Lille Métropole for a ruling on the conditions allowing for contractual balance.
10.2 – Force Majeure
AX GROUP shall not be held liable for any delay or failure to perform any of its obligations under the contract, an Order and/or the GTC if such delay or failure is the direct or indirect result of a force majeure event such as, but not limited to: (i) Occurrence of a natural disaster (ii) Earthquake, storm, fire, flood, etc. (iii) Armed conflict, war, conflict, attacks (iv) Labor dispute, total or partial strike at AX GROUP or the Customer (v) Labor dispute, total or partial strike at suppliers, service providers, carriers, postal services, public services, etc. (vi) Mandatory injunction by public authorities (import ban, embargo) (vii) Operating accident, machine breakdown, explosion (ix) Failure of a supplier or subcontractor. AX GROUP shall inform the Customer of the occurrence of any case of Force Majeure of which it becomes aware and which is likely to affect the performance of the Order.
11 – WARRANTIES AND LIABILITY
11.1 – Right to warranty
AX GROUP guarantees compliance with the Machinery Directive 2006/42/EC if it supplies the Customer with complete and new equipment that is ready for use. AX GROUP undertakes to remedy any malfunction resulting from a defect in the manufacture, materials or execution of the Order within the limits of the provisions below. AX GROUP’s warranty obligation shall not apply in the event of a defect resulting from (i) materials supplied by the Customer, (ii) a design imposed by the Customer, or (iii) data and information provided by the Customer that is incorrect and/or not updated after it has been communicated by the Customer. Furthermore, the Customer acknowledges that AX GROUP does not monitor regulations, case law or documentation on its behalf and therefore cannot be held liable in this respect, in particular in the event of any changes whatsoever after the Order has been placed by the Customer.
11.2 – Duration and starting point of the warranty
Unless otherwise specified, this AX GROUP Order warranty only applies to defects that become apparent during a period of twelve months (warranty period) from the date of delivery of the Order. This period is understood to be for use in accordance with the conditions of use described in the documentation provided with the Order and in the GTC. In any case, if delivery of the Order is delayed due to the Customer, the warranty period shall remain valid from the date of delivery originally scheduled. Unless otherwise specified, the warranty is limited to the repair or replacement of defective parts. Only spare parts supplied, modified or remanufactured by AX GROUP are guaranteed, and only during the warranty period for the main equipment of the Order.
11.3 – Customer obligations
In order to invoke the benefit of these provisions of Article 11.3 of the GTC, the Customer must notify AX GROUP immediately in writing of any defects found in the Order and provide all evidence of their existence. The Customer must enable AX GROUP to fully ascertain these defects, in particular by ensuring that the defective parts are returned.
11.4 – Liability
AX GROUP’s liability is strictly limited to the obligations defined in the Order, and the Customer acknowledges that AX GROUP shall not be liable for any compensation, in particular for intangible or indirect damages such as loss of profit, loss of use or income, and third-party claims. In any event, AX GROUP’s liability shall not exceed the amount of the Order.
11.5 – Exclusions from warranty and liability related to the Customer
Any warranty or liability on the part of AX GROUP is also excluded for incidents resulting from unforeseeable circumstances or force majeure, as well as for replacements or repairs resulting from: (i) Normal wear and tear of the equipment (ii) Damage or accidents resulting from negligence, lack of supervision or maintenance, (iii) Abnormal use of this equipment. Any intervention by the Customer on the equipment: modifications, repairs, addition of spare parts or replacements, and any testing of the equipment and/or installation on the equipment without the express consent of the Customer shall result in the cancellation of any liability or warranty on the part of the Customer. No contractual warranty, legal warranty or contractual liability shall be accepted if the conditions under which the installation is carried out by the Customer do not strictly comply with one or more of the following points: (i) AX GROUP’s specifications and, in particular, the instruction manual (ii) The rules of good practice in the Customer’s profession, in particular those concerning cleaning (products used, rinsing, protection of electrical components, etc.) (iii) The safety and environmental regulations applicable to the Customer (iv) The periodic checks and/or inspections recommended by AX GROUP or by the regulations (v) The intended use of the machine or line as originally planned (vi) The use of a product processed by the machine that does not comply with the specifications (vii) Maintenance and servicing by trained and competent personnel. (viii) Training of production personnel in the use of the equipment. Any modification of the elements of the Order at the initiative of the Customer that may in particular lead to a modification of the safety conditions shall result in the cancellation of the EC declaration of conformity issued by AX GROUP. The replacement of a part that has an impact on safety with a part that is not original shall also result in the cancellation of the said declaration. The warranty shall also be excluded in the event of non-payment by the Customer of any of the terms of payment provided for.
12 – DISPUTES
The GTC, the Order and any contract between the Parties are subject to French law, with the exception of the Vienna Convention on the International Sale of Goods, the application of which is expressly excluded. The Parties undertake to attempt to settle any disputes amicably before referring them to the competent court. ANY DISPUTE RELATING TO THE NEGOTIATION, PERFORMANCE, INTERPRETATION OR TERMINATION OF THE ORDER AND/OR A CONTRACT BETWEEN THE PARTIES AND/OR THE GTC THAT CANNOT BE RESOLVED AMICABLY BETWEEN THE PARTIES SHALL BE SUBMITTED EXCLUSIVELY TO THE COMMERCIAL COURT OF LILLE METROPOLE, EVEN IN THE EVENT OF A WARRANTY CLAIM, SUMMARY PROCEEDINGS OR MULTIPLE DEFENDANTS .
13 – USE OF THE CUSTOMER’S NAME AND LOGO
For each Order placed with AX GROUP, the Customer agrees to be mentioned as a commercial reference. This includes the possibility of mentioning the project carried out for the Customer, highlighting the products or services provided by AX GROUP, as well as the results obtained. The Customer also expressly authorizes AX GROUP to use its logo, trade name, and other identifying elements for promotional purposes on its website, in commercial documents, presentations, activity reports, case studies, and any other communication medium intended to highlight its achievements. AX GROUP undertakes to use Client references in a professional and respectful manner, in accordance with the laws and regulations in force concerning data protection and confidentiality. The Customer has the right to revoke this authorization at any time by notifying AX GROUP in writing. Following such revocation, AX GROUP shall cease all future use of the Customer’s logo and references in its promotional activities as soon as possible.