CLESTRA HAUSERMAN SAS (“ CLESTRA“ ) designs, produces, sells (sales contract) and installs (service contract) prefabricated, removable or demountable office partitions that meet the evolving needs of all companies (hereinafter “ PRODUCT“ ).
1. GENERALITIES – SCOPE OF APPLICATION
These General Terms and Conditions (hereinafter referred to as „GTC“), govern the sales and service contracts (hereinafter referred to as „CONTRACT(S)“) between CLESTRA HAUSERMAN, a simplified joint stock company with a capital of € 3,000.They constitute, in accordance with Article L 441-1 of the French Commercial Code, the sole basis for negotiations in the commercial relationship between the PARTIES. They shall apply unreservedly and without restriction to all Products sold and Services rendered by CLESTRA to its professional customers, regardless of any clauses that may appear in the CLIENT’s documents, and in particular its general terms and conditions of purchase.
The information contained in CLESTRA’s catalogs, brochures and price lists is given as an indication and may be revised at any time.
2. GOOD FAITH
In all matters relating to the AGREEMENT, its interpretation and implementation, CLESTRA and CLIENT shall at all times act in good faith. Good faith in this context includes, but is not limited to, an obligation to cooperate, not to deliberately mislead, and to implement the CONTRACT for the mutual benefit of both PARTIES with the understanding that each is entitled to achieve its reasonable objectives.
3. INFORMATION – OBLIGATION OF ADVICE
CLESTRA’s specialty is the manufacture and sale of one-piece removable steel partitions and all related or complementary activities.
The CUSTOMER acknowledges that, prior to the formation of the AGREEMENT, CLESTRA provided him/her with appropriate advice and all the information required for his/her consent.
The CUSTOMER thus acknowledges that he/she has taken cognizance of all information that is directly or indirectly related to the content of the CONTRACT or to the quality of the PRODUCTS and performance legitimately expected.
In this regard, the CUSTOMER acknowledges having been informed that the tempered glass may contain Nickel Sulfide Inclusions (NIS) which may cause spontaneous breakage of the glass. These inherent and unavoidable inclusions in the glazing do not constitute defects or hidden faults that may give rise to CLESTRA’s warranty and/or liability. The HST heat treatment can be chosen by the CUSTOMER, it allows to reduce the risk of spontaneous breakage without avoiding it completely. By purchasing tempered glass, the CLIENT accepts the risk of spontaneous breakage due to NIS.
4. FORMATION OF THE CONTRACT – CONTRACTUAL DOCUMENTS
The CONTRACT consists of the technical and commercial offer otherwise known as the Special Conditions („the SC“), as well as these GTC to the exclusion of any purchase clause or general purchase conditions specific to the CUSTOMER which may appear on any document or correspondence, regardless of the medium.
The CUSTOMER is invited to negotiate the proposed CPs, which complement or modify the present GTCs. In this context, the CLIENT undertakes to provide CLESTRA with all the information required to establish the CONTRACT. CLESTRA shall not be held responsible for the lack of subjection of elements not reported by the CLIENT. In case of contradictions between the PC and the GTC, the provisions of the PC shall prevail over those of the GTC.
As a supplement, the present GTC refer to the standard NF P 03-001 as well as to the DTU 35-1 in their last versions in force.
The CUSTOMER agrees to the transmission of documents and information, including during the pre-contractual phase, by electronic means. These exchanges will be considered as contractual from the moment an acknowledgement of receipt is given by e-mail by the contact person designated in the CONTRACT.
Once the offer has been accepted and the CONTRACT has been formed, the CONTRACT may not be modified, terminated or cancelled unilaterally by the CLIENT, except in the case of the exception defined in Article 12 of these GTC.
5. INTELLECTUAL PROPERTY
The intellectual property rights attached to the CLESTRA PRODUCTS as well as the studies, projects, plans and documents of any kind provided by CLESTRA to the CLIENT are and remain its exclusive property. The CUSTOMER undertakes to return them at its own expense, without delay, at CLESTRA’s request. They may not be used, communicated, reproduced or performed, even partially, in any way whatsoever, without the prior written authorization of CLESTRA.
6. ASSEMBLY AND MISCELLANEOUS WORK ON SITE
The CUSTOMER shall provide CLESTRA with a clean, accessible site ready for installation under the conditions and within the timeframe specified in the PCs and in accordance with the provisions of DTU 35.1.
Water, electricity, access, storage and installation areas necessary for CLESTRA’s work will be made available to CLESTRA, within the timeframe compatible with the contractual deadlines, in sufficient quantities, near the work.
The CLIENT is required to inform CLESTRA, as soon as it becomes aware of any significant element that may have an impact on the execution of the work, such as
- Difficulty of access or installation,
- Presence of other equipment or supplies on the job site that may affect the performance of the CONTRACT,
- Carrying out work in an occupied environment,
- And, in a general way, of the interventions of the other trades prior to that of CLESTRA.
The CLIENT shall, under the agreed terms, be solely responsible for ensuring that the site is made available in accordance with the aforementioned conditions, and CLESTRA shall in no event be liable for any claim in the event of a delay attributable to failure to comply with this obligation, which is a determining factor in the proper performance of the CONTRACT.
7. SALES OF SUPPLIES
All materials, goods and products sold by CLESTRA, whatever they may be, shall be deemed to have been accepted and free of all apparent defects by the CUSTOMER if no written reservation has been made on the delivery slip.
8. PRICES AND PRICE REVISION
The prices are fixed in the CONTRACT on the basis of the information communicated by the CLIENT during the consultation.
The prices are fixed without taxes and without expenses of any kind. The preparatory studies and estimates are provided free of charge if they are followed by a CONTRACT of which they are the object. If this is not the case, CLESTRA reserves the right to invoice the costs of studies and travel incurred in drawing up the documents, as well as the return of the documents supplied in accordance with the conditions set out in Article 5.
Unless otherwise specified, the technical and commercial offer, in its latest version, is valid for 30 days from its date of issue.
A revaluation of the price will be applied if the date of CLESTRA’s first intervention is more than three months later than stipulated in the CONTRACT, depending on the economic circumstances.
It will not be applied a revision of the price but a revaluation of the prices according to the effective date of intervention, the circumstances of the building site and if necessary of the increase in the price of the raw materials and the cost of the labour
In addition, in the event of a change in economic circumstances unforeseeable at the time of the conclusion of the CONTRACT making the performance of the CONTRACT excessively onerous, in particular by an increase in the price of raw materials or labor, CLESTRA may initiate a renegotiation of the CONTRACT or request its termination in accordance with the provisions of Article 1195 of the Civil Code.
9. TERMS OF PAYMENT
Payments are made to ILLKIRCH GRAFFENSTADEN, net and without discount, in euros, at 45 days end of month date of invoice in application of article L.441-10 of the Commercial Code. All costs associated with any sale on credit or pledge, security, bond, pledge or otherwise shall be the sole responsibility of CUSTOMER. The payment is realized with the effective collection of the price, the handing-over of draft or any other title creating an obligation to pay not constituting a payment. The terms of payment may not be delayed or changed under any pretext whatsoever, even if it is a dispute.
Non-acceptance or non-return of an item, suspension of payment for any reason, unauthorized clearing, or refusal to accept constitutes a default in payment.
Under no circumstances may payments be offset in any way by the CLIENT without CLESTRA’s prior written consent.
The CLIENT is hereby informed and accepts that CLESTRA may use factoring or any other financing operation such as a Dailly assignment.
In the event of default or delay in payment, all sums due by the CLIENT, for whatever reason, shall become immediately payable without the need for formal notice.
Without prejudice to the foregoing, any sum not paid on the agreed due date shall automatically entail the application of penalties at the interest rate applied by the ECB plus 10 points, without prejudice to the application of the increased rate provided for by law in the event of conviction.
In accordance with the provisions referred to under Articles L441-10 and D.441-5 of the Commercial Code, any failure by the CUSTOMER, whether partial or total, or any delay, will result in the payment of an indemnity for collection costs in the amount of 40 euros. This indemnity will be due as of right from the first day of delay of payment for each unpaid invoice. This compensation is not subject to VAT and will not be taken into account in the basis for calculating late payment penalties.
This lump-sum compensation is not limited to the amount of other expenses that may be incurred by CLESTRA for the purpose of collecting its invoices. The costs and fees incurred by the contentious recovery of the sums due will always be charged to the CLIENT.
The payment of the above-mentioned late payment penalties is not a discharge.
In addition, in the event of late payment persisting for more than fifteen working days after a formal notice to pay has been sent in vain, CLESTRA may immediately suspend the execution of the work until payment is received in accordance with the provisions of Article 1219 of the Civil Code. This suspension of work will be carried out to the exclusive detriment of the CLIENT, who will not be entitled to claim any compensation or penalty in the event of delay and will be solely responsible for the possible harmful consequences of the said suspension.
10. GUARANTEE OF PAYMENT
The CLIENT shall guarantee payment of amounts due to CLESTRA under the CONTRACT in accordance with the law, including but not limited to:
The CLIENT, when it is the owner, undertakes to guarantee payment of the sums due in accordance with the provisions of Article 1799-1 of the Civil Code.
When CLESTRA acts as a subcontractor of its CLIENT, the latter undertakes, in accordance with Article 6 of the law of 31/12/1975 relating to subcontracting, to provide it with a guarantee or a delegation of payment before any start of execution. He also undertakes to supplement the guarantee by the amount of any modification or additional work and to adapt the date of release of the guarantee to the evolution of the schedule and to the date of end of the contract.
Failure to provide CLESTRA with a guarantee of payment in accordance with the terms of the contract shall engage the contractual responsibility of the CLIENT, who shall not be entitled to claim any penalty, withholding or compensation from CLESTRA on any grounds whatsoever.
CLESTRA may entrust third parties with the performance of all or part of the CONTRACT under the conditions of Law no. 75-1334 of 31 December 1975.
In this respect, the CLIENT may not refuse to approve a subcontractor presented by CLESTRA without giving reasons for its refusal.
12. RESOLUTORY CLAUSE
Without prejudice to the provisions of Article 4 and Article 9, the CONTRACT shall be terminated or rescinded by operation of law, at CLESTRA’s discretion, in the event of the CLIENT’s failure to perform any of its material obligations, fifteen days after notice of default has been served without result. As regards damages, it is hereby agreed that CLESTRA will retain all sums already paid by the CLIENT, which constitute only a conventional minimum compensation. The CUSTOMER undertakes to compensate CLESTRA in full for all direct and indirect loss suffered by CLESTRA as a result of such termination or cancellation.
In the event of the occurrence of one of the events contractually assimilated to a case of force majeure in Article 13 that is likely to delay, prevent or render economically exorbitant the execution of the CONTRACT, the latter will be suspended or terminated, without compensation, at CLESTRA’s initiative by registered letter with acknowledgement of receipt to the CLIENT.
The CUSTOMER may request the termination of the CONTRACT if he/she can prove a legitimate interest. Such termination shall only occur, at CLESTRA’s discretion, if the products have not been ordered or their production started. In any event, such termination shall result in the payment by the CUSTOMER of a minimum indemnity of 20% of the amount of the CONTRACT. The payment of the indemnity does not release CLESTRA from any claim for damages.
13. DELIVERIES AND DEADLINES
The agreed delivery dates are subject to the signature of the CONTRACT and, if agreed, to the payment of the deposit by the CUSTOMER. Unless otherwise specified in the PC, the delivery time is given as an indication only.
If the PCs expressly provide for a firm delivery date, CLESTRA is obliged to meet this date subject to:
- the performance by the CLIENT of its own contractual obligations, in particular compliance with the conditions for making the site available, the completion of all preparatory work, such as the validation of plans within the timeframe compatible with the schedule imposed on CLESTRA,
- the non-occurrence of a case of force majeure such as: epidemic, state of war, requisition, fire, flood, tooling accident, strike, disruptions in transport or information networks, disruption in the supply of raw materials or energy sources and, more generally, any cause leading to a total or partial stoppage of CLESTRA’s activity or that of one of its suppliers, subcontractors or transporters
- the non modification of the CONTRACT, even if minor (product, quantity, deadline, condition etc.).
- the non-survival of unforeseen benefits,
- the non occurrence of additional work,
Any delay in the delivery or performance of the CONTRACT for reasons wholly or partly attributable to the CUSTOMER or to a third party shall automatically result in the postponement of the delivery or acceptance date of the work for at least the same period of time.
Any delay that is not attributable to CLESTRA and that causes additional difficulty in carrying out the work will be subject to additional invoicing.
A delay in delivery or performance may only give rise to a penalty or damages if it is directly and exclusively attributable to CLESTRA and has constituted a real loss that has been established by mutual agreement, and if the PC has expressly provided for the possibility of such a delay with the reciprocity of a premium in the event of an advance payment. In addition, the CUSTOMER shall be liable to pay late payment penalties to his own customer.
If such a penalty has been expressly stipulated, it shall in no event exceed 5% of the pre-tax price of the PRODUCTS whose delivery is delayed or, in the case of services, of the pre-tax price of the services alone.
14. PACKAGING, TRANSPORT, STORAGE
If not specified in the CP, the price of the products is exclusive of transport, customs, labour, installation and supervision costs.
In the absence of a provision in the PCs, the products travel at the risk of the CLIENT who, in the event of delay, damage or shortage, must exercise its recourse against the carriers in the forms and timeframes necessary for the investigation of the claim and make the necessary reservations with the latter to allow the exercise of its recourse.
If the products are to be stored or travel under specific conditions (long duration, humidity, heat, etc.), the CUSTOMER must inform CLESTRA so that the packaging can be adapted. Unless otherwise stipulated in the PC, CLESTRA will never take back packaging.
In case of storage of products in the premises of the CUSTOMER, the latter must provide all the means necessary for storage and this in conditions ensuring the good safety and conservation of the products. The costs of such storage shall be borne by the CLIENT.
15. WARRANTIES AND LIABILITIES
The CUSTOMER benefits from the legal guarantees. In order to be able to invoke the benefit of this clause, the CLIENT must have complied with the terms of payment provided for in the CONTRACT, notified CLESTRA without delay and in writing of the defects it claims to have in the Products and provided all evidence as to the reality of the defects. It must also provide all facilities for CLESTRA to ascertain such defects and to remedy them.
The CUSTOMER shall only benefit from specific guarantees regarding the technical and industrial performance of the products (acoustic performance, fire resistance, etc.) if these are specifically accepted by CLESTRA in the PCs in terms of an obligation of result.
CLESTRA’s liability is strictly limited to the obligations stipulated in the CONTRACT and, in any event, to direct and foreseeable material damage, which is capped at the price excluding tax of the products or services in question. With the exception of gross negligence on the part of CLESTRA and compensation for personal injury, CLESTRA shall not be liable for any other compensation. CLESTRA shall in no event be liable to the CLIENT for any indirect and/or consequential damages, such as loss of profit, operating loss or commercial loss.
16. RETENTION OF TITLE
It is expressly stipulated, as an essential condition, that the PRODUCTS remain the property of CLESTRA until full payment of the price, costs and accessories.
CLESTRA shall be entitled to enforce its rights under this clause on all products sold to the CLIENT, the latter being, by express agreement, deemed to be the unpaid products.
In the event that CLESTRA claims the delivered products in accordance with this clause, the resulting costs, in particular the cost of returning the products, shall be borne by the CLIENT.
In the event of multiple claims, the reserved property shall secure all current or future claims against the CUSTOMER.
In the event of a claim, the insurance indemnity shall be automatically subrogated to the products of which CLESTRA has remained the owner.
The CLIENT undertakes to keep the products in good condition and to insure them on behalf of CLESTRA until they are paid for in full. Likewise, any modification or alteration of the products is prohibited. In the event that the CLIENT violates this prohibition, the CLIENT hereby assigns to CLESTRA the ownership of the products resulting from the processing in order to secure CLESTRA’s rights.
The CLIENT undertakes to inform CLESTRA immediately in the event of receivership or liquidation, as well as in the event of seizure or other measures affecting the goods. He/she shall not create any security interest in the property and shall not carry out any transaction that may prejudice CLESTRA’s right of ownership.
The CLIENT shall not sell the goods before full payment has been made without the prior consent of CLESTRA. In the event that the CUSTOMER contravenes this prohibition, the CUSTOMER hereby declares that he/she will assign the claim arising from the resale to a sub-purchaser. He shall not be entitled to collect the price owed by the sub-purchaser to the extent of the sums still owed to CLESTRA and he shall be obliged to inform the sub-purchasers of the assignment of the claims of which CLESTRA is the beneficiary.
17. TRANSFER OF RISK
Provision of services: The transfer of risks to the CLIENT of loss and deterioration of the work will be carried out upon receipt of the work, independently of the transfer of ownership, regardless of the date of the CONTRACT.
Sale only: The transfer of risk to the CUSTOMER of loss and deterioration of the Product will be realized upon shipment of the Products, independently of the transfer of ownership.
All information relating directly or indirectly to the AGREEMENT, concerning the PARTIES, including their business and finances, is confidential in nature.
The PARTIES undertake to communicate such information, of which they may have knowledge, only to their managers and employees whose functions or missions are closely related to the execution of the CONTRACT and to whom such information is imperatively necessary in the context of the execution of their employment contract.
Furthermore, the CLIENT undertakes to maintain confidentiality with respect to third parties regarding the pricing conditions granted by CLESTRA.
Each PARTY thus undertakes, for a period of 5 (five) years from the delivery of the confidential information, unless otherwise specifically provided, that the information it receives or obtains :
- Be protected and kept strictly confidential and treated with the same degree of care and protection as it accords to its own Information of equal importance;
- Not be used, in whole or in part, for any purpose other than that defined in the preamble to this Agreement without the prior written consent of the Issuing Party;
- Not be communicated, nor likely to be communicated, either directly or indirectly, to any Third Party;
- Be communicated only to its employees who need to know for the implementation of the partnership and for whom it is responsible for compliance with the obligations set out in the CONTRACT.
19. PERSONAL DATA
Personal data is defined as any information relating to a natural person who can be identified, directly or indirectly.
The personal data collected from CUSTOMERS is subject to computer processing by CLESTRA. They are recorded in its customer file and are essential for the execution of the CONTRACT. This information and personal data is also kept for security purposes, in order to comply with legal and regulatory obligations. They will be kept for as long as necessary for the execution of the CONTRACT and any applicable guarantees.
Access to personal data will be strictly limited to CLESTRA employees who are authorized to process such data by virtue of their position. The information transmitted may be communicated to third parties bound to CLESTRA by a contract for the execution of subcontracted tasks, without the CLIENT’s authorization being necessary.
Third parties have only limited access to the data in the course of performing their services and are obliged to use the data in accordance with the provisions of the applicable legislation on the protection of personal data. Apart from the cases set out above, CLESTRA will not sell, rent, transfer or give access to third parties to the data without the prior consent of the CLIENT, unless it is obliged to do so for a legitimate reason
If the data will be transferred outside the EU, the CUSTOMER will be informed and the guarantees taken to secure the data will be specified. In accordance with the applicable regulations, the CUSTOMER has the right to access, rectify, delete and port the data concerning him/her, as well as the right to object to the processing for legitimate reasons. These rights may be exercised by contacting CLESTRA at the following email address: email@example.com and the CNIL.
20. APPLICABLE LAW – JURISDICTION
The CONTRACT is subject to French law. Any dispute that cannot be settled amicably will be brought before the competent courts of the place of CLESTRA’s registered office, even if there is more than one defendant or if there is a call for guarantees.
Neither bills of exchange, nor the acceptance in payment of cheques or bills of exchange in any city other than the place of CLESTRA’s registered office shall operate as a novation or derogation to this jurisdiction clause.