ARTICLE 1 – Opposability
When ordering to a company of the Montagne et Neige Développement group (hereinafter referred to as “the Company”), the Customer unreservedly accepts the present general conditions to the exclusion of any other document. Notably, the Customer expressly declares that he renounces his own general conditions. So, any contrary condition of the Customer will be, for lack of express acceptance by the Company or of a mention in the acknowledgment of receipt of the order mentioned in the article 2.1 or in the accepted estimate mentioned in the article 2.2, non-invocable to the latter.
The Customer accepts that the Company could change later and reasonably the present general conditions and that their relationship will be always subject to the last conditions in force the day of the order.
ARTICLE 2 – Drawing up of contracts
2.1. Any products delivery must be preceded by an order from the Customer that could be an order form or an accepted estimate, knowing that estimates are valid for 30 days from date of estimate. As soon as the Company has received the acknowledgement of receipt of the order, duly signed by the Customer, the contract is drawn up. However, if the Company does not receive this signed document within the business 24 hours from the sending of the acknowledgment of receipt of the order, it could consider that the contract is concluded, as the Customer’s silence is acceptance. Once the contract is drawn up, no invalidation or amendment will be accepted and the cost will be owed.
2.2. Services (installation, maintenance, study, assistance…) can lead to a previous estimate sent by fax or e-mail to the Customer. This estimate is valid 30 days from date of estimate. For a firm order, the estimate must be signed as agreed, without reserve, by the Customer and sent back to the Company by fax or e-mail.
ARTICLE 3 – Price – Financial conditions
3.1. The price is based on the current rate when the order is placed (this rate will be enclosed to the present conditions on Customer’s request) or, if need be, it is the one indicated on the acknowledgment of receipt of the order accepted in accordance with the article 2.1 for the products and the one on the estimate previously accepted by the Customer as indicated at the article 2.2 for services. Prices are EX WORKS (2000 CCI Incoterms) the Company workshop, firm, net, before taxes and charges. No discount will be granted for an early payment.
3.2. The price is payable at forty five (45) days net from date of invoice. No discount will be granted for an early payment.
3.3. In accordance with the law n°2008-776 (08/08/04) late payment entails a penalty equal to the rate of EURIBOR at is last refinancing operation +10 points. In case of partial delivery, the non-delivery or the balance carried forward cannot delay, under no circumstances, the payment of the delivered part. As a general rule, the Customer cannot refer to any cause to defer or modify the terms of payment, especially a dispute on the products quality or nonconformity or a delivery delay. If an invoice is not paid when due, the Company could suspend the realization of its obligations, suspend or cancel current orders and/or require the immediate payment of the owed remaining balance.
ARTICLE 4 – Delivery – Receipt
Delivery times are for information only, and the Customer would not take advantage of it to demand the cancellation of the order, penalties or compensations and/or to refuse to pay the price.
Products are delivered EX WORKS (2000 CCI Incoterms) the Company workshop. If the Company takes care of the transport to the site indicated on the acknowledgment of receipt of the order signed by the Customer, it is only as the representative of the Customer. Delivery costs are so fully charged to the Customer.
The Customer commits himself to control the goods during the delivery and, in case of noticed defects or deteriorations or missing products, to write precise reserves on the delivery slip, in the presence of the driver, during the unloading of the delivered goods and to confirm these reserves to the carrier by registered letter with AR within the 48 hours from the delivery. Once this time is over, no contesting will be accepted and the Customer expressly renounces to bring an action concerning these charges against the Company.
If need be, at the date planned by the parties, for reasons no imputable to the Company, if tests and/or the control have not been done in presence of the Customer, he will be deemed to have taken delivery of the work and the minutes will be signed only by the Company. It will be like an acceptance minutes with all referring consequences.
ARTICLE 5 – Reserve of ownership – Risks
THE TRANSFER OF OWNERSHIP OF THE PRODUCTS DELIVERED BY THE COMPANY TO THE CUSTOMER WILL TAKE PLACE ONLY AFTER THE FULL PAYMENT OF THE PRICE BY THE LATTER.
The Customer commits himself to create an easy identification of the delivered products for the Company.
In case of demand, received early payments will be kept definitively by the Company as an inclusive compensation, without including any other action that the Company could bring. However, the transfer of risks will take place according to the chosen INCOTERM. Thus, the Customer will insure risks and event liability such as, theft, destruction, damages on products or made by products, after the transfer of risks. It is not an exhaustive list.
ARTICLE 6 – Guarantee – Liability
6.1. The Customer must pass on, to the Company, the characteristics of the products and services that correspond to his needs, especially market and technical information necessary to understand perfectly the required installation (location, photographs, installation maps…) and control that these characteristics correspond exactly to his expectations. The Customer is thus deemed to know exactly the products and/or services he buys and recognizes that he has been able to obtain information concerning the ordered ones. He is notably the only one responsible for the choice of the installation site for the products.
6.2. The Company commits itself to guarantee the Customer against any defect and/or fault for the duration indicated on the acknowledgment of receipt of the order, from the delivery of the product defined in the article 4.
During the defects liability period, the Company could choose between replacing the faulty product at its own expense or repairing it, excluding return transport costs. In the case the Company does not install, only costs of pieces are guaranteed, excluding all labour costs. The guarantee does no apply to the defect and/or fault due to the fair wear of products, a use of products that is not in conformity with the operating conditions in the technical documents, with the Company recommendations or all uses, laws and regulations in force, a defect of maintenance, a negligence, the installation and/or removal and/or changes of accessories, pieces or any other device on products by the Customer without previous written authorization from the Company.
6.3. THE COMPANY DOES NOT TAKE ON ANY OTHER OBLIGATION OF GUARANTEE, EXPRESS OR IMPLICIT, THAN THE ONE STIPULATED IN THE ARTICLE 6.2.
In case of doubt about interpreting a clause, the Customer recognizes that the Company obligations mean due cares.
Without questioning the article 4 and on condition of a wilful misconduct, the Company liability cannot, under no circumstances, be held towards the Customer when the delivered products are in conformity with the order and when services are in conformity with the rule book, especially if the Customer does not respect the installation, use, maintenance and/or safety instructions applicable to the products or when the damage is due to a defect in the products installation or maintenance that has not been made by the Company.
In any case, the Company could not be hold responsible towards the Customer or a third party, for any indirect damage, especially loss of exploitation, loss of customers, commercial loss, damage to the public image, resulting from the holding or use of products or services.
In any event, on condition of a wilful misconduct, the Company liability could not exceed, under no circumstances, the price paid by the Customer in compensation of its obligations. The Company could always prevent a liability action by putting in conformity or replacing the product that is not in conformity.
Any commitment of the Company liability by the Customer will be subjected to a registered letter with AR sent within the 48 hours of the alleged nonfulfilment. This contesting will be precisely justified. If the Customer does not act like this, it means that he renounces to rely on the Company liability.
ARTICLE 7 – Maintenance – Security
Some products need, to guarantee goods and people security, a regular maintenance according to the terms written in the standards and/or manuals that are applicable to the products. The Customer declares that he knows them perfectly. The Customer must call out the Company to realize this safety maintenance before the end of each recommended expiry date. If the Customer does not respect the recommended maintenance calendar, the Company is exempted from any liability, especially in case of accident.
As a general rule, the Customer has the exclusive liability to control frequently the condition and wear of the products to be sure that they are in conformity with the standards and/or manuals that are applicable to them.
ARTICLE 8 – Intellectual property – Drawings
All drawings, documents and technical data given by the Company to the Customer, as well as, if need be, the referring intellectual property rights remains the exclusive property of the Company. The Customer could not thus communicate them to third parties without previous authorization of the Company.
ARTICLE 9 – Force majeure
If a case of force majeure occurs, it leads to the immediate suspension of the contract execution. If it lasts more than 60 days, the contract could be terminated by one party without compensation for any party.
Are expressly considered as cases of force majeure: exceptional bad weather, natural disasters, attacks, strikes, lock-out, riots, war, international difficulties, requisitioning, fires or floods in the premises of the Company or of one of its own suppliers, transport interruption or delays, important incident on the production devices, import restraints.
ARTICLE 10 – Evidence
In case of dispute, parties accept to consider that the fax and e-mail are original written documents and perfect evidences and renounce to contest this means of evidence.
ARTICLE 11- Disputes
The present general conditions are subject to French law.
ALL DISPUTES RESULTING FROM THE OPERATIONS AIMED BY THE PRESENT GENERAL CONDITIONS WILL BE SUBJECT TO THE COMMERCIAL COURT OF THE REGISTERED OFFICE OF THE COMPANY, WHICH IS EXPRESSLY ACCEPTED BY THE CUSTOMER.