General Principles and Terms for Contracting - Faiveley Transport Group (International)
1. PREAMBLE
The General Principles and Terms for Contracting (hereinafter the "GTC") are fully applicable to all
orders (hereinafter "Order" or “Purchase Order”) issued by our company ( hereinafter "Buyer") for the Delivery (hereinafter the "Delivery") of products (tools, machinery, equipment, parts, supplies, raw materials, and / or performance of services (hereinafter “the Products”) with the supplier or service provider (hereinafter "the Supplier").
The fact of the Supplier signing these GTC is considered as a formal waiver to his own general terms of sale.
As a principle, terms and conditions stipulated by the Supplier attached to or on the back of his correspondence are not binding for the Buyer except if they have not been formally accepted through signature.
Any deviation from these GTC at order point must be made in form of a written agreement between the Supplier and the Buyer. This does not constitute a precedent which the Supplier may claim for subsequent orders.
2. CONTRACT DOCUMENTS
2.1 The Order includes, but is not limited to, the following documents:
• special conditions of the Order,
• the technical specifications of the Order (plans, drawings, technical documents),
• the General Terms and Conditions for Purchase,
• any attached document duly accepted by the Buyer.
below the ( "Contract Documents").
In case of discrepancy or inconsistency between the terms of one or more of said Contract Documents, the special conditions prevail over the general terms and conditions.
2.2 The Supplier acknowledges that he has all the information necessary for the proper execution of the Order and that he is aware of all the conditions under which the Order is to be executed and why it must be executed. In any event, he must request from the Buyer any statement, information or document he considers as necessary for the proper execution of the Order.
2.3 The Supplier is required to check all the documents the Buyer submits to him and must report any error, omission or inconsistency as well as any non-compliance with good practice, national standards or international law that is likely to affect the proper execution of the Order.
2.4 The Supplier shall specify in his commercial offer a detailed price list of spare parts and any other specific parts and consumables required for the proper use of the Products (manufacturer reference), as well as their terms of delivery (lead time, minimum order quantities, incoterms (ICC 2010).
3. Purchase Order Format
3.1 Any Order has to be submitted in form of a formal purchase order issued by the Buyer’s purchasing department. Any verbal orders placed by telephone or orders placed by fax must refer to an order number issued by the Buyer and are only valid after written confirmation through a purchase order.
3.2 Within 5 days after the receipt of such Order, the Supplier must acknowledge the Order to the Buyer in written form. The sending of an acknowledgment or the start of the Order execution implies acceptance in full and without reservation of the Contract Documents, including the terms of the Order and the present GTC. If the Supplier does not issue an acknowledgment within 5 working days, the Order is considered accepted in its entirety.
3.3 The Order shall be deemed passed to the Supplier on the date of receipt of the order acknowledgement by the Buyer or, in default of acknowledgment of receipt, the date of the beginning of the execution of the Order.
3.4 Subject to the level of progress of the Order, the Buyer reserves the right to change the purchase Order under execution, in case his needs have been changed.
Any changes requested by the Buyer will be subject to an acknowledgment by the Supplier. The Supplier will provide at the same time the potential impact of this change on the price, delivery time or completion of the Order. Changes in price or lead time shall not become effective unless there is written consent of the Buyer.
4. PRICE - REGULATIONS
4.1 Unless stated otherwise in the documents specific to the Order, all prices are deemed tax-free and are not subject to modification. In case of Delivery of products or materials, all prices are DDP (Incoterms ICC 2010), unless stated otherwise on the Order.
4.2 If not specifically agreed, the payment terms are 60 days (subject to local law and standards) from the date of the invoice.
4.3 In case of deferred payment related to provisional acceptance, any payment will only be made after the removal of any reservations by the Buyer.
4.4 All payments shall be subject to the submission of an invoice issued by the Supplier in accordance with the conditions set out in the Contract documents and accompanying supporting documentation provided therein. All invoices must contain the number of reference the Buyer has given to his Purchase Order and the item numbers of the Products contained in the Delivery to which the invoice refers. Any incomplete invoice will be returned to the Supplier.
4.5 The Supplier shall provide notice to the Buyer prior to any transfer of all or part of the debt that is owed by the Buyer. The Supplier agrees not to transfer his claims to a different legal entity unless the prior written consent of Buyer.
5. CONTRACTUAL TIME FRAMES
5.1 The time limits specified in the Order or in any delivery call-off issued by the Buyer in the event of open order, are mandatory and are of the essence of the Order.
5.2 Any delivery prior to the agreed delivery date shall be subject to a prior written approval of the Buyer, otherwise the Buyer reserves the right the refuse such Delivery.
5.3 In the event of non compliance with the time limits specified in the Order, the Supplier shall be obliged to pay a penalty to the Buyer by paying a sum equal to 2% of the total value of the Order per day of late delivery. The total amount of the penalty will not exceed 25% of the Order. Any amount taken into account to calculate any penalty is excluding taxes.
5.4 The compensation paid by the Supplier under this Article shall in no way be regarded as a full compensation for any harm suffered by the Buyer and its payment does not release the Supplier from any of its contractual obligations.
6. DELIVERIES
A delivery note must accompany every Delivery. Each delivery note must bear the reference number of the Order, the item numbers and descriptions used by the Buyer on his Purchase Order, and the words “partial delivery” or ”complete delivery”, depending on the status of the Order.
7. PACKING - SHIPPING
7.1 The responsibility for proper packing and transportation lies with the Supplier even if the amount of freight is paid by the Buyer. The Supplier accepts to take back or recycle the packaging used for his supplies promptly.
7.2 Packaging must be suitable for the Products, the transportation mode and handling at destination. The Supplier is responsible for any damage or loss that may occur during transportation or storage that is due to inadequate or faulty packaging.
For supplies which require special packaging or special handling, the Packaging must include marks stipulating all necessary information, including weights and lifting points for a discharge without risk of accident. In case that any Products to be provided or used in connection with the execution of the Order contain hazardous substances or require special security precautions in handling, transportation, storage or usage, the Supplier shall, before delivery, provide in writing to the Buyer, all necessary information on the nature of these substances and the precautions to be taken. The Supplier shall ensure that prior to shipment appropriate instructions and warnings are clearly indicated on the goods or products in question, as well as on the packaging in which they are put. In particular, and without that this provision is limited in any way, The Supplier shall provide the Buyer in writing with all the indications, warnings and instructions necessary to meet statutory or regulatory provisions applicable to health and safety.
7.3 Each shipment will be made according to the conditions stipulated in the Order and shall be accompanied by delivery notes of which the number and destination will be provided in the Contract Documents. These bills include all necessary information including the reference of the Order of the Buyer, the date and contents of the shipment.
7.4 The Supplier shall be responsible for any discrepancies between the Delivery received by the Buyer or the Buyer’s customer and characteristics and quantities specified on the delivery note.
7.5 The Buyer reserves the right to postpone the date of shipment. In this case, the Supplier shall bear all storage cost during 15 working days.
7.6 A packing list has to be placed inside of each parcel. Parts or parcels have to be identified and marked very clearly, as per the Buyer’s instructions.
8. ACCEPTANCE
The Acceptance is the act by which the Buyer declares to accept the Delivery with or without reservation. Acceptances are valid only at the location of the Buyer. Acceptances conducted at the Supplier’s office by officers authorized by the Buyer are only provisional and do not commit the Buyer.
When acceptance inspections and controls are scheduled in the Order, they are carried out under the responsibility of the Supplier.
If it is contractually agreed, the receipt is recorded, a protocol established, dated and signed by both parties.
Any provision inconsistent with the terms of the Order, including quantitative and / or qualitative specifications shall, pending decision of the Buyer, returned to the Supplier at the Supplier’s expense and risk. The Buyer expressly reserves the right to refuse the Delivery in the following cases:
- Delivery of non-compliant Products,
- non compliance with the dates and times of delivery stipulated in the Purchase Order
- incomplete or surplus delivery.
The Supplier agrees to pick up any rejected Products at its own expense within a maximum of 8 calendar days from the date of refusal of the Products. The Buyer reserves the right to charge the Supplier storage cost related to rejected Products, starting from the day of formal rejection of the Products.
Rejected Products are not to be deducted from the quantity of Products initially ordered by the Buyer. The Supplier is required to deliver the Order in full, according to the terms of the Order, unless the Buyer expressly consents to a reduction of the Order quantity by written form. The Buyer reserves the right to cancel any Order that has been subject to partial or full rejection. The Supplier bears all cost for storage and pick-up of these goods. The cancellation of the Order does not release the Supplier of its contractual obligations. The Supplier shall immediately return the entire advance or deposit that may have been paid to him.
9. TRANSFER OF PROPERTY - TRANSFER OF RISK
9.1 In the context of the supply of any Product, the transfer of ownership occurs at the date and time of Acceptance of the Product on the Buyer’s premises or other location specified in the Purchase Order. If phased or partial delivery is agreed, the transfer of ownership occurs on Acceptance of every Delivery. If the Purchase Order includes putting in service the Product or executing of works on the site of the Buyer, the transfer of ownership takes place at the date of final Acceptance by the Buyer.
9.2 Any reservation on title or ownership by the Supplier shall be considered as null and void unless expressly accepted in writing by the Buyer.
9.3 Unless otherwise provided in the Order, the transfer of risk occurs after the complete Acceptance of the Products without provision or reserve from the Buyer.
10. TOOLINGS
Any tooling made or purchased by the Supplier under the execution of the Order and any documentation (plans, drawings ...) related to those tools are the property of the Buyer who may dispose of them entirely. At the request of the Buyer, any tooling and the corresponding plans and drawings will be presented to the Buyer for technical control, engraving, stamping and registration.
As the custodian and guardian of the tooling, the Supplier shall implement all necessary means to enable the identification and individualization of the tools belonging to the Buyer, including a metallic label or engraving with the mention " exclusive property of Faiveley Transport" During the Order execution, the Supplier is responsible for their usage, including corrective and preventive maintenance. Unless otherwise agreed, the Supplier shall return the tooling at his own expense on request of the Buyer to the Buyer’s premises or otherwise specified location. A copy of any drawing related to the tool established by the Supplier shall be addressed to the Buyer.
These obligations are extended to any subcontractors of the Supplier.
All supplies and materials not consumed, and equipment made specifically by the Supplier or on deposit at the Supplier’s for the execution of the Order, is the property if the Buyer and shall at all times be returned within a week after his written request. The restitution may be requested at any point in time, during the execution of the Order or after the complete Acceptance of all Products contained in the Order. Tooling cannot be used by or for the benefit of third parties without written authorization from the Buyer.
No tooling belonging to the Buyer can be destroyed or modified without the prior written consent.
The Supplier shall ensure, before execution of the Products, tools or models that these correspond exactly to the drawings and specifications in the Order. Products that do not meet the specifications can be rejected even if they have been manufactured with the help of models or tools belonging to the Buyer.
The Supplier shall neither, in any way, modify the equipment and tools made available by the Buyer, nor disclose any information about them to third parties or make complete or partial copies in addition to those required for the execution of the Order without the prior written consent of the Buyer.
11. HEALTH AND SAFETY STANDARDS – INTERNATIONAL REGULATIONS
11.1 All Products must comply with all laws and regulations, including national and international standards and norms issued by any competent standardization authority or any other duly authorized body, as well as instructions, internal requirements and specifications from the Buyer.
11.2 The Supplier shall take all measures required to ensure site safety, hygiene, worker safety and comply with all obligations imposed upon it by applicable law, as well as those prescribed by the safety and accident prevention rules provided by the Buyer.
11.3 The Supplier shall be fully responsible for all requirements resulting from the REACH regulation linked directly or indirectly to the creation, delivery and usage of his Products, including, but without limitation, the (pre-) registration, evaluation and approval of his Delivery and Products, its substances and / or their usage. This includes information, samples, controls, analysis
or tests relating to the Supply, and its substances, as well as its uses, required under the rules of REACH.
12 . CERTIFICATE OF ORIGIN
The Supplier must comply with all applicable laws and regulations, regarding the documentation of origin and source of any components or substances included in his Products. The Supplier shall provide the Buyer with any statement or certificate required to justify the origin and source of those elements.
13. NON DECLARED EMPLOYMENT
The Supplier declares to comply with all laws and regulations applicable to non declared employment.
14. RIGHT TO CONTROL
The Buyer reserves the right, with or without the presence of his client to audit the Supplier’s installations himself or have the audit performed by the body of his choice, the execution and progress of the Order execution in the Supplier’s facilities, and / or at its subcontractors’ and potential suppliers’.
The Supplier shall provide the Buyer or his representative every access to their premises during normal business hours, as well as to those of its subcontractors and suppliers. It will also make all the means necessary to carry out control operations available to the Buyer or its representative. The cost of audit or control operations is borne by the Supplier. In the event that, during a check, it any defect or non-compliance with the Order is found, the Supplier shall correct them as soon as possible and at his expense.
The Supplier must notify the Buyer of any non-conformity. The Supplier shall not deliver any non-conform product.
The time required for control or correction of defects or nonconformities may not entail any modification or extension of time limits specified in the Purchase Order. Control and verification operations performed by the Buyer shall in no circumstances justify any reduction of or waiver to the Supplier’s contractual warranty.
15. WARRANTY
15.1 The Supplier warrants that the Delivery:
• meets the needs of the Buyer and is fully consistent with the purpose the Buyer intended to use the Product for,
• was executed according to the terms of the Order and the state of the art,
• achieves all the expected results and performance criteria.
15.2 The Supplier guarantees that his Products and related elements are free of any defects regarding construction, manufacture, machining, and raw materials and do not present any abnormal wear or faulty design or material.
15.3 Except if expressly provided otherwise in the Contract Documents, this warranty is granted for a minimum period of two years from the commissioning of the supply to the customer of the Buyer but not exceeding, in any case, thirty-six (36) months after the Acceptance of the Delivery by the Buyer.
15.4 Under the warranty, the Supplier shall, without delay and at his own expense (including freight and labour), take all necessary measures to remedy the defects, faults or defects found by the Buyer, his Customer or their respective representatives, including:
- in case of service provision, to perform all corrective actions necessary to achieve fulfilment according to the Order.
- in case of supply of Products , to proceed within 24 hours of notification with the repair or replacement of all or part of the products or defective equipment, as per the Buyer’s written notice.
15.5 In the event that, after notice by the Buyer, the Supplier has not corrected the anomalies, defects or faults found, the Buyer reserves the right to make or to carry out the operations referred to above, as well as any sorting operation and / or recall, at the expense and risk of the Supplier.
15.6 In the event that within 5 years of the last Delivery und the Order, 10% or more of the delivered Products of the same or similar type fail to operate in the expected way, a serial fault can be declared by the Buyer. The Supplier is so held responsible to replace the entire Delivery, including Parts that do not show any defect yet.
15.7 Any claim by the Buyer for default, defect or non-conformity will result in a penalty of 150 euros to cover the administrative expenses of the Buyer to treat the complaint, and this without prejudice to any other damages that may be claimed by the Buyer.
16. LIABILITY
The Supplier is liable for all damages resulting from his non-performance or the improper execution of its obligations under the Order. The Supplier agrees to compensate the Buyer for all damages suffered that are the Supplier’s responsibility.
17. INSURANCE
17.1 The entire responsibilities and risks assumed by the Supplier under the Order must be covered by adequate insurance, including policies for personal or bodily injury, general public and product liability covering direct, special or consequential damages. The insurance contract must be entered with reputable insurance companies. The Supplier declares to have undersigned insurance contracts that cover all risks listed above before and during the Order execution, as well as after delivery for all personal or bodily injury, direct, special or consequential damages which could occur to the Buyer or his Customer, linked to transport, handling or usage of the Products. At the request of the Buyer, the Supplier shall provide a certificate from his insurer specifying the type of damage and the amount of damage covered, as well as a record of the proper payment of the insurance premiums thereon. The Supplier’s insurance contract does not in any way constitute a waiver on behalf of the Buyer regarding the Supplier’s liability and warranty.
17.2 If the Buyer entrusts goods to the Supplier to help the execution of the Order, the Supplier shall provide at its expense and in the Buyer's name, insurance against all risks of loss, theft and damage.
18. TERMINATION – RESCISSION
18.1 In the case of total or partial failure by the Supplier to meet its obligations under the Order, , the Buyer may 15 days after the first written notice to the Supplier, terminate the Order by registered letter with acknowledgment of receipt, and this without prejudice to any damages the Supplier might be liable for.
18.2 In the event of termination or rescission caused by the misconduct of the Supplier, the Buyer may, in particular, and without limitation, transfer the Order to a different provider of his choice, and, at the expense of the Supplier, have said provider proceed to the execution of the unexecuted Order, scrap any non-conforming delivery, and take immediate possession of all documents, plans, drawings, materials, tools executed or being executed under the Order by the defaulting Supplier, his subcontractors and suppliers. All cost incurred by the Buyer under the new Order shall be paid in full by the Supplier.
19. REFUSAL
19.1 At any time during the execution of the Order, as well as during the warranty period, the Buyer reserves the right to pronounce the refusal of all or part of the Delivery in case of non-respect of any of its contractual obligations by the Supplier; in particular in the following cases:
• defects detected during any control operation performed by the Buyer, his customer or their respective representatives during implementation, manufacturing, assembly or works using the Products delivered by the Supplier.
• exceeding time frames for any operations under the warranty provisions
• Non achievement of technical specifications, quality and delivery performance metrics or results under the conditions specified in the Order or related documents,
• appearance of damages making the use of the Product or their installation dangerous, unusually expensive or incompatible with normal operational standards.
19.2 In the event of refusal, the Buyer shall be entitled to use the rejected Products during the time required for the preparation of a replacement Delivery by the Buyer. It is understood that the Supplier shall be responsible and indemnify Buyer for any damage suffered by the Buyer's use of the rejected supplies.
19.3 Upon written request of the Buyer, the Supplier will carry out the removal of the refused Products in the shortest possible time. Said removal will be performed at the expense and risk of the Supplier.
19.4 If the Supplier cannot or is not willing to proceed to replacement or repair , he will be required to return to the Buyer all payments already made under the Order within three (3) months after notification of the refusal. This does not constitute a waiver to any kind of damages the Buyer may further claim.
20. INDUSTRIAL AND INTELLECTUAL PROPERTY
20.1 The Supplier warrants that he is the legal owner, licensee, holder or authorized user of all patents, licenses, processes, trademarks and designs covering the Products that he provides for the execution of the Order.
20.2 The Supplier warrants that the Delivery of the Products does not constitute an infringement of existing rights of industrial or intellectual property of third parties. The Supplier agrees to protect the Buyer against any claim, action, or opposition that a third party claiming a right of industrial or intellectual property in connection with the execution of the Order or the use of the Products might obtain. The Supplier agrees to indemnify the Buyer for all cost and expenses that may be charged to him related to the misuse of industrial and intellectual property titles in the property of third parties.
20.3 All tools, software, models, materials, plans, drawings, specifications, designs, data and other elements of Information provided by the Buyer under the Order remain the exclusive property of the Buyer at all times and may not be used by the Supplier for other than the purpose of executing the Order. As such, the Supplier agrees not to make an offer based on and not to provide third parties with any Products made by using above tools, software, models, materials, plans, drawings, specifications, designs, data and other elements from the Buyer.
20.4 All inventions, patents, designs, trademarks, registered designs or other rights of industrial or intellectual property (including digital information) resulting from the execution of the Order will be transferred and become the property of the Buyer by the simple fact of acknowledging the Order. The Supplier will carry out all formalities required to make the actual transfer.
20.5 The Supplier grants to the Buyer and his customers an unlimited license to use, exploit and maintain any software that is integrated or associated with the Products or other aspects of the Order execution, even if that software has not been developed specifically for the Buyer.
21. EVOLUTION OF PRODUCTS
Any change in the design, manufacturing process or control of the Products must be reported by the Supplier to the Buyer together with a technical sales document that clearly states and financially evaluates the benefits of the proposed evolution for the Buyer. No change to the Products can be made without prior written permission from the Buyer. The consent of the Buyer to any change does not constitute a prejudice to any possible technical responsibility, warranty or liability of the Supplier.
The Supplier shall notify Buyer at least twelve (12) months before the stop of production of the Products or their withdrawal from the Supplier’s catalogue. The Buyer may order any required quantities within that time.
22. OBSOLESCENCE
In addition, the Supplier shall, for a minimum of thirty (30) years after the cessation of manufacture or the withdrawal of the Products from his catalogue provide the Buyer, in an economically competitive manner, parts, components and other elements necessary for the maintenance and usage of the Products.
A component is considered obsolete when it is no longer possible to order replacement parts which are identical or functionally equivalent and compatible.
Prior to the execution of any Order, the Supplier will analyze and report to the Buyer any component whose availability is not ensured for the phase of mass production until the expiry of the warranty period.
If the phenomenon of obsolescence occurs during the execution of the Order, the Supplier agrees to:
• notify the Buyer in accordance with section 21 here above and inform him concerning the measures taken (cover projected needs up to the end of current orders , storage or anticipated introduction of a double-source, etc.).
• where appropriate, develop, and propose an alternative for qualification by the Buyer;
• justify the dimensional and functional inter-changeability (with a minimum of interfaces) between an alternative and the obsolete Product.
• ensure the sustainability of its alternative, which must allow the Buyer to procure Products as per his functional requirements at the same or superior level of quality for at least 30 years after the last delivery.
23. CONFIDENTIALITY
The Supplier considers himself as professionally bound by non disclosure and secret obligations. Therefore, all information of any kind, obtained directly or indirectly from or about the Buyer, all documents entrusted to him and all statements and documents relating to the Buyer are strictly confidential. The Supplier shall, under its responsibility to maintain absolute secrecy about all information and documents, and agrees not to communicate it to third parties. Subject to applicable law, the Supplier will be asked to undersign on behalf of all his employees, subordinates, contractors, agents.
24. FORCE MAJEURE
The execution of the Order may be suspended at the request of either party, in case of force majeure for the duration of the effects of the event constituting the alleged force majeure.
Shall be considered as force majeure all events beyond the control of the parties, irresistible and unpredictable, which shall prevent the Supplier or Buyer to perform its contractual obligations normally. In any case, are not considered as cases of force majeure, strikes, lockouts, or other similar events, as well as difficulties or delays to the supply of energy or raw material.
The party seeking a force majeure shall inform the other party in writing within twenty-four (24) hours as to the cause and duration of force majeure.
Neither Party shall be liable for any failure or delay in the execution of any commitment whatsoever in respect of the Order if such failure or delay is due to force majeure.
The Parties shall use their best efforts to mitigate the effects of the event constituting the force majeure and resume performance of their obligations at the end of that event.
If the duration of force majeure exceeds 60 days, the Parties, at the written request of any party, will meet to decide on common action. Failing agreement within 15 days of this request, the Order may be terminated at the initiative of either of the Parties by registered letter with acknowledgment of receipt. Such termination shall not give rise to the payment of any compensation. The acceptance on behalf of the Buyer on termination on grounds of force majeure does not constitute a waiver of the obligations of the Supplier in terms of warranty and liability.
25. SUBCONTRACTING
The present Order is of personal nature. The Supplier may not subcontract all or part of the Order without the prior written consent of Buyer. Subcontractors who have been approved by the Buyer are placed at all times, under the authority and responsibility of the Supplier only. The Supplier's is obliged to transfer all the requirements in the contract documents to its own suppliers and subcontractors. The Supplier shall require its subcontractors to comply with the terms of the Order, including these Conditions of Purchase. The Supplier waives to name the Buyer as a warrant in any disputes that might oppose him to its suppliers and subcontractors.
26. UNLAWFUL PRACTICES
The Supplier shall refrain himself from any acts or omissions that lead or may lead to an indictment for fraud, corruption or embezzlement, breach of mandatory laws, grant to the Buyer or benefit bribery of any of his own or his agents’, suppliers’ and subcontractors’ employees.
Otherwise the Buyer reserves the right to terminate any Order immediately and all existing transactions, as well as the termination of any ongoing negotiations.
27. APPLICABLE LAW - JURISDICTION
The Order and these General Terms and Conditions for Purchase are subject to Czech law to the exclusion of provisions of international conventions on the international sale of goods, notably the Vienna convention.
Any dispute arising in connection with the interpretation or the execution of the Order is subject to the exclusive jurisdiction of the Court of Czech Republic, the location of the headquarters of the Buyer, withstanding anything stipulating to the contrary, even in cases of multiple defendants or case of warranty.