GENERAL TERMS AND CONDITIONS OF SALE AND SERVICES
These General Terms and Conditions are systematically sent out or given to each Customer no later than the date on which they sign the contract. Therefore, contracting with FORGINAL implies the Customer’s full and unconditional acceptance of these General Terms and Conditions to the exclusion of any other document such as brochures and/or catalogues, which are given for information only and have no contractual validity.
Unless FORGINAL has given its express prior approval in writing, no special condition or general purchasing conditions may prevail over the General Terms and Conditions contained herein. Barring FORGINAL’s express acceptance, the Customer may not invoke any contrary condition against FORGINAL, regardless of when said condition came to light. The decision by FORGINAL not to avail itself of any provision in these General Terms and Conditions at any given time shall not constitute a waiver of its right to invoke said provision(s) at a later date.
With no prejudice to the special definitions given in the body of this document, the following terms commencing with a capital letter take the following meanings:
Specifications: description of the technical characteristics that the Products shall comply with in a given environment.
Customer: the entity that commissions the Service who, under these General Terms and Conditions, shall be a “professional entity” within the meaning of the provisions of the introductory article of the French Consumer Code.
Order: order placed by the Customer with FORGINAL, governed by the group of documents consisting of these General Terms and Conditions, the Quotation and, where applicable, any other special condition expressly approved by both Parties.
General Terms and Conditions: these general terms and conditions of sale and service.
Quotation: the quotation prepared by FORGINAL and accepted by the Customer, with the aim of confirming the signature of the Order.
FORGINAL: the company FORGINAL INDUSTRIE, a French société par actions simplifiée (simplified joint-stock company) with a capital of 1,600,790 euros, having its head office at THIERS (63300), Z.I. de Geoffroy – Chemin de la Varenne, designated as the company’s legal address, listed in the CLERMONT-FERRAND Companies and Trade Register under number 746 780 097.
Parties: FORGINAL and the Customer.
Service: Service delivered by FORGINAL, subject of the Order.
Products: Products manufactured by FORGINAL, subject of the Service.
Know-how: the entire body of knowledge, procedures, information and methods, of whatever nature, belonging to FORGINAL and which may or may not be protected by intellectual property rights, whether taken as a whole or individually.
These General Terms and Conditions define:
- the procedures to be followed by the Customer when placing an Order with FORGINAL;
- the procedures to be followed by the FORGINAL when performing the Service commissioned by the Customer;
- the rights and obligations of each Party.
3. Terms and procedures relating to delivery of the Service
3.1. Applicable provisions
The Service is performed according both to the conditions set out herein and to the special conditions stipulated in the Quotation and, where applicable, in any other written document formally agreed between the Parties and expressly approved by FORGINAL. In the event of a conflict between these General Terms and Conditions and the special conditions set out in the Quotation or in any other document approved by both Parties, and which were accepted by both Parties in the Order, the special conditions accepted by both Parties shall prevail.
3.2. Placing an order
To generate an Order, the Customer sends FORGINAL a consultation containing the Specifications.
Following internal validation, FORGINAL emails the Customer a Quotation together with these General Terms and Conditions.
To validly conclude the Order, the Customer shall, by any written means, and email in particular, send FORGINAL its unconditional acceptance of the Quotation and the General Terms and Conditions.
Any confirmed Order received by FORGINAL shall, as from said Order’s date of reception, be firm and binding upon the Customer.
3.3. Changing an order
Any request to modify the Order shall be notified in writing by the Customer and approved in writing by FORGINAL under a new Quotation. In this case, any deposits and prices received by FORGINAL corresponding to that part of the Service that has already been performed shall be irrevocably forfeited to FORGINAL.
4. Performance of the service
FORGINAL sets up the physical organisation and organises the means required for proper execution of the Service entrusted to it.
FORGINAL performs its mission in accordance both with the safety measures currently in force and with the standard rules of good manufacturing practice applying to its business area. Unless otherwise stipulated, part characteristics shall conform to good manufacturing practice and, in particular, with standard NFEN 10243-1 (steel die forgings – tolerances on dimensions) and specification “SNEF 108 – Tolerances in quantity”.
Unless expressly specified in the Order, Service delivery times shall be sequenced on the Quotation and given for information only. Delays in Service delivery in relation to the indicative time limit given in the Order shall not incur any penalty or compensation, nor be used by the Customer as grounds for cancelling the Order.
The Customer agrees to send FORGINAL in due time, all the information and any other elements required to ensure complete and successful delivery of the Service.
5. Transfer of ownership and risks
Ownership of the Products will only be transferred upon full payment of the price by the Customer, as stipulated in the reservation of ownership clause in Article 8 below.
The transfer of risks relating to loss of or damage to the Products shall be made according to the procedures set out in the Quotation. In the absence of specific instructions in the Quotation, the transfer of risks relating to loss of or damage to the Products shall be made “Ex Works”
At the time of shipping the Products from the plant, the Customer is responsible for checking (or for having their designated carrier check) the condition, the quantity and the weight of the Products, and for signing the Products’ remittance slip free of reservations, which constitutes the Customer’s unconditional acceptance of the Products and covers all visible defects and/or missing items.
Should reservations be issued at the time of Ex. Works shipment, the Customer is responsible for sending FORGINAL confirmation of said reservations by means of Registered Letter with Return Receipt within eight (8) days of the Ex. Works shipment date. Otherwise, the Products will be deemed to have been unconditionally accepted by the Customer. In this case, the Customer is responsible for providing documentary evidence that supports its claim pertaining to defective or missing Products.
Under no circumstances shall the Customer return the Products without having first received FORGINAL’s prior, express approval in writing. The carrier designated by FORGINAL is solely authorised to handle returns of the relevant Products.
If, following inspection, FORGINAL or its designated representative establishes a visible defect or missing Product, the Customer shall only be entitled to request that FORGINAL replace the nonconform Products at its own cost, and may not claim any compensation nor demand termination of the Order. However, the claim issued by Customer shall not release it from its payment obligations.
6. Prices and payment terms
6.1. Prices – Payment terms
The total cost of the Service together with the payment terms and deadlines are detailed in the Quotation.
Unless otherwise expressly specified, Orders shall be paid in Euros.
Unless otherwise stipulated in the Order, FORGINAL gives no discount for early or cash payments.
Under no circumstances shall payments owing to FORGINAL be suspended or reduced or offset without FORGINAL’s prior, written approval. Any payment received by FORGINAL is allocated to outstanding amounts, regardless of their origin, starting with those with the oldest due dates.
6.2. Penalties for late payment
In the event of late payment, a penalty calculated on the basis of the European Central Bank refinancing rate increased by 10 points, in addition to a flat-rate compensation of 40 euros to cover collection costs will be automatically levied on the amount of the invoices, excluding VAT. If debt collection costs exceed the amount of the flat-rate compensation, FORGINAL may also demand additional compensation on submission of the supporting evidence, through the appropriate legal channels if necessary.
Should the Customer fail to settle a single payment term on its due date and in accordance with the provisions of Article 11 herein, the Order may be automatically suspended or terminated, as FORGINAL sees fit, with no prejudice to any expenses or damages.
7. Intellectual property rights
FORGINAL shall retain sole ownership over all Know-how applied by FORGINAL in performance of the Service, together with all drawings and techniques relating to design and manufacturing and all the intellectual property rights that may be established during execution of the Service.
8. Reservation of ownership
As indicated in Article 5 above, the Products subject of the Order shall remain the property of FORGINAL up till such time as the latter has received full payment of the price (meaning that the relevant payment orders have been cleared by the bank).
The Customer acknowledges that it has read and understood this reservation of ownership clause stipulated by FORGINAL, that it accepts it unconditionally and declares that it will not obstruct it in any way.
The Customer will be entitled to use the Products subject of the Order as part of its business activities. Conversely, in the absence of FORGINAL’s prior express approval in writing, the Customer agrees that, until it has paid in full all amounts owing in principal, interest, costs and related expenses, it will not assign, sell, pledge, directly or indirectly, loan or lease said Products. The Customer will also ensure at its own cost that it does not allow the Products to become or remain assets under a lien or any similar privilege, and agrees to notify FORGINAL immediately, by Registered Letter with Return Receipt of any physical or legal incident, or of any seizure or other intervention by a third party with respect to the Products.
In the event of its business being sold or pledged as collateral security, the Customer shall take every necessary measure to ensure that the Products are not included in the sale or pledge and that the purchaser or the secured creditor are duly informed of FORGINAL’s right of ownership over said Products.
Failure to comply with the payment schedule specified in the Order may result in FORGINAL reclaiming any goods for which payment is outstanding. In this case, FORGINAL may demand, by Registered Letter with Return Receipt, that the Customer returns said goods immediately at its own cost, risks and perils. Should said goods have suffered any alteration or abnormal wear and tear, the cost of the necessary repairs will be charged to the Customer.
Any payment deadline extensions granted by FORGINAL to the Customer will be subject to the same reservation of ownership clause.
Notwithstanding the above, under Article 5 herein, the risks of the Products suffering loss or damage, together with liability for any damage they may cause are transferred to the Customer. Therefore, the Customer shall, at its own cost, take out the necessary risk insurance policies on the date of said transfer.
The Customer is solely liable for the choice and relevance of the data shown in the Specifications, and for its use of the Products.
Under no circumstances shall FORGINAL be held liable for:
- the content of the Specifications provided by the Customer or a third party, including cases where said third party is a design office;
- cases where the Product suffers a malfunction that remains within admissible tolerances as per the standard rules of good manufacturing practice applying to FORGINAL;
- abnormal wear and tear of the Products;
- premature wear and tear or breakage of the Product, in cases where the Customer has used or assembled the Product in a way that does not comply with the way they would have been used had the Specifications been complied with, or where the Customer has failed to monitor or maintain the Product correctly;
- cases where the Product has been modified and/or repaired by the Customer, without having received FORGINAL’s prior written approval;
- cases where the Product is manufactured using faulty raw materials provided by the Customer or by a representative of the Customer or by a supplier prescribed by the Customer;
- the Product’s design, in cases where said design has been carried out by the Customer or a third party;
- cases where the Product is sold or used in a country not validated by FORGINAL;
- cases where a third party claims intellectual property infringement with regard to their intellectual property rights;
- the industrial outcome expected by the Customer with regard to use of the Products.
In any case, FORGINAL’s contractual liability with regard to the Service is limited to the Ex. tax amount of the price received for said Service. FORGINAL’s liability may only be invoked directly. Under no circumstances shall FORGINAL’s liability be invoked indirectly.
10. Force majeure
Neither the Customer nor FORGINAL shall be held liable for the full or partial non-performance of their obligations resulting from an event constituting force majeure within the meaning of Article 1218 of the French Civil Code.
Generally speaking, events considered as constituting a case of force majeure that releases FORGINAL from its obligations include: strikes by some or all of FORGINAL’s employees or its usual suppliers, fire, flood, war, production stoppages due to unforeseen breakdowns, epidemics, road closures due to thawing snow, road barriers, strikes, disruption in energy supplies, or breaks in supply not attributable to FORGINAL, and any other cause of a break in supply not attributable to FORGINAL’s suppliers.
11. Suspension of service performance – Termination
FORGINAL may suspend Service performance should the Customer fail to honour its obligations under these General Terms and Conditions and/or the special provisions stipulated in the Order.
Should the Customer fail to honour its obligations under these General Terms and Conditions and/or the special provisions stipulated in the Order, with regard to its financial obligation in particular, FORGINAL will be entitled to terminate the Order as of right.
In this case, FORGINAL would retain any deposits already received as a flat-rate compensation.
This termination shall automatically take effect fifteen (15) days after the Customer’s receipt of a formal notice sent by Registered Letter with Return Receipt, stating the grievances lodged against it, that has remained unheeded.
The exercise of this right of termination shall not release the Customer from its requirement to fulfil its contract obligations up till the effective date of termination, particularly in terms of its financial obligations, with no prejudice to any damages eventually claimed by FORGINAL due to early termination of the Order through the fault of the Customer.
12. Protection of Personal Data
During performance of the Services, FORGINAL collects and processes personal data relating to the Customer, concerning its business activities. As such, FORGINAL acts as data processing manager.
The processing of data sent to FORGINAL meets legal data protection requirements, the IT system used providing optimal data protection. FORGINAL makes available to the Customer the terms of its non-disclosure policy covering data collected as part of its Order processing procedure.
In accordance with current national and European regulations, the Customer is entitled, at any time, to access, modify, rectify, block the portability and limit the processing of their personal data.
These rights can be exercised by:
- sending an email request to: firstname.lastname@example.org ;
- or writing to the following postal address: FORGINAL INDUSTRIE – Z.I. de Geoffroy – Chemin de la Varenne – 63300 – THIERS.
The email or letter shall be accompanied by a copy of a duly signed identity document.
Each person is also entitled to submit a claim to the CNIL (French Data Protection Authority):
13. Applicable law – Disputes
This contract is governed by French domestic law.
Any disputes relating to the interpretation and performance of the Order and the Service shall be referred exclusively to the courts in CLERMONT-FERRAND.