General terms and conditions of sale

1. INTRODUCTION

The purpose of these General Terms and Conditions of Sale is to set forth the relation ships between CLESTRA, hereinafter referred to as “CLESTRA”, and the CUSTOMER, hereinafter referred to as the “CUSTOMER”.

Unless otherwise strictly specified by CLESTRA, all orders that it delivers and all contracts that it concludes are, without exception, subject to the general terms and conditions of sale, with any other documents such as brochures and catalogues issued by CLESTRA being only of an indicative character and having no contractual effect.

These provisions may be supplemented by terms and conditions specific to some products and, if the need arises, by Particular Terms and Conditions, which will in any event constitute an integral part hereof.

Terms of purchase specific to the CUSTOMER, specifications of architectural or engineering consultants or any other printed or handwritten provisions that appear in any letters or documents that CLESTRA has not formally agreed to in writing prior to the conclusion of the contract, shall not be invoked by the CUSTOMER.

The same shall apply to any commitment made by one of the representatives, agents or any other delegate of CLESTRA, to which CLESTRA has not agreed beforehand.
 

2. OFFER

The CUSTOMER commits to transmit to CLESTRA any information necessary for the establishment of the terms and conditions of an offer.

CLESTRA shall not be liable for any constraint that is not reported by the CUSTOMER.

CLESTRA’s offer contains a period of time within which it remains valid for acceptance; unless otherwise expressly stipulated, the offer is valid for 30 days from the date of its transmission.

Thereafter, CLESTRA shall be released from any obligation, unless it expressly agrees in writing to renewal of the offer subject to updating of its term and to any technical or economic readjustment that it deems necessary.

The CUSTOMER’s acceptance of the offer is deemed to be adherence to the General Terms and Conditions. After the CUSTOMER’s acceptance of the offer, such offer cannot be terminated or rescinded by the CUSTOMER without determination, by amicable or judicial means, of an indemnification, particularly for the costs incurred by CLESTRA in consequence thereof.

If the customer decides, whatever the reason, to cancel his order CLESTRA shall be entitled to invoice the customer for a minimum of 10% of the total amount of such order if the cancellation is notified to it at least 30 days before the beginning of the work, and 20% if such cancellation is notified less than 30 days before the beginning of the work, in order for CLESTRA to be compensated for the expenses incurred by the preparation of the offer, including but not limited to the costing, the studies, the plans, the travel expenses.

Only written and accepted offers bind CLESTRA to its CUSTOMERS, within the limit of the following reservations:

  • Weights and linear and square metres specified in estimates and contracts are purely for indicative purposes and are not contractual in effect. In no event shall they be subject to claims from the CUSTOMER in case they are modified.
  • When estimates include the specification of certain profiles or samples of raw materials, such materials may, at the time of the execution, be replaced by others of a quality that is equivalent to, or complies with, the same specifications, or because the replacements are considered to be more adapted to the purpose of the offer.

It may happen that CLESTRA’s written confirmation does not precisely adopt the terms of the CUSTOMER’s offer or order. In such case, if the CUSTOMER does not submit any comments in writing within eight days of its receipt, the confirmation shall be deemed to be fully accepted and shall serve as proof in the event that a dispute arises related to any contrary prior stipulation.

Additional supplies shall be subject to amendments specifying the requirements for their execution.
 

3. CONTENT OF SUPPLIES AND WORK

The order confirmed by CLESTRA precisely and restrictively determines the nature and scope of the supplies and work to be performed. Fixed prices are always to be understood to apply in respect to the specifications and quantities appearing in the order. Any change in the terms and conditions specified in the order, particularly in the specifications and quantities, and any additional work must be subject to a written agreement regarding its content and its definition as well as its price.
 

4. CONTRACT

The contract includes:

  1. CLESTRA’s offer accepted by the CUSTOMER
  2. If the need arises, additional specific terms and conditions and/or particular terms and conditions
  3. These General Terms and Conditions of Sale accepted and signed by the CUSTOMER
  4. The down payment upon placement of the order.

The various documents that comprise the contract must be considered to be mutually explanatory; however, in the case of ambiguities or divergences, they shall prevail in the following order of priority: 1.2.3.4
 

5. SUBCONTRACTING

CLESTRA reserves the right to totally or partially subcontract its performance under the contract, particularly in respect to performance of the assembly.

In that event, CLESTRA’s sole obligation is to guarantee the CUSTOMER that the subcontractor’s performance is in compliance with the contract and its own standards, with a written definition of its legal relation ships with said subcontractor.

6. INTELLECTUAL PROPERTY

Any studies, projects, plans or documents provided or transmitted by CLESTRA are and remain the latter’s exclusive property. The CUSTOMER commits to promptly return them at its expense upon CLESTRA’s simple request.

They shall not be used, provided to others, reproduced or executed, even partially, by any means whatsoever, without CLESTRA’s prior written authorization.

The studies and documents are provided gratis if they are followed by the order to which they relate. Otherwise, CLESTRA reserves the right to claim reimbursement for the study and travel expenses in curred for the establishment of said studies and documents, as well as for the return thereof.
 

7. ON-SITE ASSEMBLY AND MISCELLANEOUS WORK

The CUSTOMER commits to have a clean, easily accessible worksite ready for assembly, which is made available to CLESTRA under the conditions and within the times specified in the Particular Terms and Conditions of the contract, particularly with lifting equipment, dry and cleared unloading and storage areas to be provided gratis. Under the agreed terms, the CUSTOMER shall be responsible for having the worksite in conformity with the availability and in the conditions specified by CLESTRA, and in no event shall the latter be subject to com plaints or claims in the event of delay due to non-compliance with this provision.
 

8. PRICES AND TIME LIMITS

Unless another deadline for acceptance is specified in the offer, the proposal related to prices (even with a revision formula) and delivery time are only valid for 30 days pursuant to the above article 2.

Any newly-imposed, modified or eliminated taxes that might affect the sale price, especially a change in the VAT, which occurs between the time of the offer and the time of the invoice shall be fully passed on and invoiced to the CUSTOMER.

Also, a variation in any other ancillary costs related to the invoice shall result in a corresponding variation in the agreed price.

When contracts are renewed, their basic price shall not automatically be determined on the basis of the prices of previous contracts by applying the parametric updating formula that the latter might have contained.
 

9. PRICE REVISION

Revision consists of taking into account, in order to calculate the invoice price, the economic variations that occurred between the issue of the offer and the date of revision.
 

10. TERMS OF PAYMENT

Payments are made in ILLKIRCH GRAFFENSTADEN, net and without discount, in EUROS, unless otherwise stipulated, and are due under the terms specified in the offers and quotations, order confirmations or invoices.

All costs related to any sale on credit or against securities, guarantees, pledges or any other similar types of sale shall be covered exclusively by the CUSTOMER.

Payment is deemed to be made upon the effective collection of the price, without the remittance of a draft or any other item creating an obligation to pay constituting payment.

The dates of payment cannot be delayed or changed for any reason whatsoever, even in the event of disputes.

Non-acceptance or non-return of an instrument of payment, suspension of payment for any reason, unauthorized offsetting and refusal of receipt are deemed to be defaults of payment. The same applies in the event of a sale, pledging or contribution of the CUSTOMER’s business or equipment.

In no event shall the payments be subject to any offsetting without CLESTRA’s prior written agreement.

In the event of a defaulted or late payment, all of the sums owed by the CUSTOMER in any regard whatsoever become immediately due and payable without the need for a notice.

Without prejudice to the foregoing, any sum unpaid on its agreed due date automatically results, commencing on said date, in the application of penalties at the interest rate applied by the BCE increased by 7 points, without prejudice to the application of a rate increase specified by law in the event of a judicial order.

In addition, the costs and fees incurred for legal collection of outstanding sums shall always be covered by the CUSTOMER.
 

11. RESCISSION CLAUSE

Without prejudice to the provisions of article 10, the contract shall automatically be terminated or rescinded at the discretion of CLESTRA if the CUSTOMER fails to meet any of its obligations, such as a defaulted or late payment on the agreed due date of any sums owed here under, 8 days after a notice there to demanding performance has remained fruitless, without prejudice to CLESTRA’s right to claim all damages and interest.

It is particularly agreed that any instalment already paid by the CUSTOMER shall be retained by CLESTRA as damages and interest.

If one of the events that are contractually considered as a case of force majeure, described hereinafter, occurs in such a way as to delay or prevent performance of the contract or to make such performance impossible due to its exorbitant cost, the contract shall be suspended or even rescinded at CLESTRA’s discretion, upon notification by registered letter with an acknowledgement of receipt to the CUSTOMER, without any indemnification.

The same applies in the event of fires, strikes, lockouts, floods, mechanical break downs in the premises of CLESTRA or its suppliers or subcontractors, wars, riots, requisitions, technical closings, equipment failures and loss of important parts in the process of manufacturing, all causes leading to total or partial unemployment, delay in transport, impossibility of obtaining supplies under normal conditions, and any circumstance that is beyond CLESTRA’s control that prevents normal performance of this contract.
 

12. DELIVERY / TIME LIMITS

CLESTRA must comply with the times appearing in its offers subject to the following conditions:

  • Fulfilment by the CUSTOMER of its own contractual obligations, particularly compliance with the terms and conditions, availability of the worksite, payment, transmission of all information and execution of all items of work that are necessary to prepare the worksite for performance of the contract.
  • Non-occurrence of one of the events of force majeure or an event as described above in article 11. Compliance by the CUSTOMER with the date of shipment and the work necessary to assemble the equipment on the site. Modification of work, unforeseen work and, generally, any tardiness in delivery or performance of the contract which is not directly due to CLESTRA’s acts or omissions. All costs and risks related to non-delivered equipment within the specified times for reasons that are not imputable on CLESTRA are to be covered exclusively by the CUSTOMER.

Any late delivery or performance of the contract for reasons that are not imputable to CLESTRA shall not, by any means, result in rescission of the contract or in the payment of any penalties or damages and interests.

In no event shall CLESTRA be held liable for any forthcoming constraint which had not been reported by the CUSTOMER, for instance:

  • Difficulty of access to, or emplacement of, the installation
  • Other equipment or supplies that may impair contract performance
  • and, generally, any other construction work prior to that of CLESTRA.

Any late delivery or performance of the contract for reasons that are not imputable to CLESTRA automatically defers the date of work acceptance by a period equal to the period of such delay.

Any delay due to the acts or omissions of third parties that creates further difficulties in realization of the contract shall be invoiced to the CUSTOMER with documentation thereof.

A late delivery or performance provides the right to claim damages and interest only if, due to CLESTRA’s acts or commissions, it constitutes an actual injury observed by both parties and if the contract expressly specified such possibility, with a reciprocal premium payable in the event of completion of work prior to the contractual deadlines.

If such a penalty is expressly stipulated, it shall not in any circumstance exceed 5% of the factory price net of taxes of the equipment which was delivered belatedly.
 

13. PACKAGING AND TRANSPORT

Unless otherwise specified in writing by CLESTRA, the prices include the manufacturing, transport, unloading, on- site installation and assembly of the equipment.

The CUSTOMER must take all steps necessary to have the equipment that is not assembled on its request stored in conditions upon its arrival that are required for its proper preservation, and is responsible for the costs of such storage.

The supplies, even shipped with carriage and packaging paid, always travel at the CUSTOMER’s risk and peril; in the event of late delivery, defects or missing items, the CUSTOMER shall take action against the carriers, or submit reservations to them in order to exercise such an action.

The packaging is not recovered by CLESTRA.
 

14. WARRANTY AND LIABILITY

The CUSTOMER is provided with the legal warranties specified in article 1792 and those that follow and article 2270 of the Civil Code (total completion warranty, proper operation warranty, ten -year warranty).

In order to invoke the coverage of these warranties, the CUSTOMER must have met the contractual specified terms of payment, must have advised CLESTRA, without delay and in writing, of the defects that it observed in the equipment, and must provide all proofs regarding the reality thereof. The CUSTOMER must also facilitate the procedure for the establishment and correction of these defects.

The CUSTOMER may invoke warranties regarding manufacturing results, particularly in matters of acoustics and fireproofing, only if the parties establish in writing their agreement to these warranties.

In no circumstance shall the indemnification that might be provided in that regard exceed 5% of the factory value net of taxes of the incriminated equipment.

The above provisions constitute the only liability incurred by CLESTRA vis-à-vis the CUSTOMER to the exclusion of indemnification for any other injuries or costs resulting directly or indirectly from CLESTRA’s defective supplies or services, unless CLESTRA committed an act or omission of gross negligence. If the CUSTOMER requires CLESTRA to use materials of a specific quality, origin or type, or of a particular execution design or process, CLESTRA shall not in any circumstance be held liable for any defects that may result therefrom.
 

15. RESERVATION OF OWNERSHIP

  • As an essential condition, it is expressly stipulated that the delivered goods remain CLESTRA’s property until full payment of the price, costs and ancillary items. However, the CUSTOMER bears the risks for those goods as soon as they leave CLESTRA’s plants.
  • CLESTRA may exercise the rights that it holds under this provision on all of its goods in the CUSTOMER’s possession, if the latter are, by express agreement, deemed to be unpaid.
  • In the event that CLESTRA claims the delivered goods pursuant to this provision, the costs there of, particularly those of return, shall be covered by the CUSTOMER.
  • In the event of a multiplicity of claims, the reserved ownership guarantees all present or future claims on the CUSTOMER.
  • In the event of a claim, the insurance indemnification shall automatically be subrogated to the goods which remain under CLESTRA’s ownership.
  • The CUSTOMER must maintain the goods in an impeccable state and must insure them for the account of CLESTRA.
  • Any modification, transformation or alteration of the goods is prohibited. In the event of the CUSTOMER’s non-compliance with this prohibition, the CUSTOMER as of now transfers to CLESTRA the ownership of the transformed goods in order to guarantee CLESTRA’s rights.
  • The CUSTOMER must immediately inform CLESTRA in the event of judicial administration or liquidation, as well as any attachment or other measure affecting the goods. The CUSTOMER is prohibited from pledging the goods as security for debt or otherwise encumbering them through any transaction that mig ht infringe CLESTRA’s proprietary right.
  • The CUSTOMER is prohibited from selling the goods prior to full payment of the price thereof without CLESTRA’s prior agreement. Should the CUSTOMER fail to comply with this prohibition, the CUSTOMER as of now declares assignment of the claim arising from the resale to a sub-purchaser. The CUSTOMER cannot receive the price owed by the sub-purchaser up to the amount remaining due to CLESTRA, and commits to inform the sub-purchaser of the assignment of claims of which CLESTRA is the beneficiary.

 

16. CONTEST/DISPUTE

After an attempt to reach an agreement by amicable means has failed, it is expressly agreed that any dispute related to contracts, orders and these presents shall be submitted exclusively to the competent Courts sitting in the area of CLESTRA’s registered office, even in the presence of a multiplicity of defendants or actions to enforce guarantees, unless CLESTRA prefers to refer the matter to any other competent Court.

Neither drafts nor acceptance of payment by cheques or any other bills in a city other than the location of the registered office constitute a substitution of, or an exception to, this attribution of jurisdiction.