This English-language version of the general sales conditions is a free translation of the original French text. It is not the governing version. In the event of a conflict of interpretation, reference must be made to the French version, which governs.
1) Offers and orders : The sending of the order by the Client implies his acceptance of the general sales conditions of BORFLEX in force at the time of ordering, and this notwithstanding (unless written acceptance given by ourselves) any general purchase condition fixed by the Client, which will be unenforceable, no matter at what point BORFLEX are informed. The Client is deemed to be informed of the general sales conditions as soon as he has sent his order.
No order is valid and is deemed to be entered only after written acceptance by BORFLEX. However, this acceptance may also result in products being sent to the client. BORFLEX may only be engaged by the conditions of its express and written acceptance of the Client’s definitive order and only on the exact products specified in its acceptance. No order already accepted may be modified or cancelled without our prior written agreement. In case of acceptance of cancellation, we reserve the right to invoice the costs and expenses incurred.
An open order specifying periodic or scheduled deliveries may only be concluded for a limited period as agreed between BORFLEX and the Client.
2) Prices : The prices shown in the quote are given for information only and depend on the more or less complete information, supplied by the Client concerning the product to be delivered.
The prices to be invoiced to the Client are established at the date of the order acknowledgement. These prices are susceptible to modification, even during the course of the contract in case of variation in economic or technical conditions, in particular in the case of an increase in labour, energy or raw materials costs, of inflation, or to new specifications demanded by the Client.
The price is tax exclusive, packaging not included ; depart from our establishments with the transport cost in addition. The price for controls and tests is separate from that of the parts, as well as those for tooling, research, and prototypes and may only be incorporated into the price of the part after written agreement by BORFLEX. Tooling costs or participation in the tooling are paid as follows: 50% with the order and the balance on delivery of prototypes.
3) Payment conditions : Products are payable at the latest 30 days end of month counting from the invoice date, by cheque, order or bank transfer to the address on the invoice and in the currency shown on the invoice. No discount will be given for early payment unless expressly agreed to by BORFLEX.
The Client may not refuse to pay all or part of any sum due or delay the payment because of any claims of his ; in particular concerning his guarantee rights. No debit advice issued by the client will be accepted as such by BORFLEX and can not be deducted automatically regulations. Pursuant to art. L441-6 of the Commercial Code, penalties at the annual rate of 20% and an allowance of 40 euros will be due to the absence of a settlement day following the payment date on the invoice.
BORFLEX may proceed to blocking of the account in the event of non-payment of bills or in case of deduction assignment of a debit without prior agreement of BORFLEX. No more delivery can take place until the customer has not rectified the situation, without the latter could ask any compensation or interest on arrears . It is the same for manufacturing current that can be suspended.
BORFLEX may be reduced at any time the conditions negotiated payment until payment in pro- forma order, if the client’s situation requires it (especially in case of total loss of approval credit insurance or in case of late payments regular).
4) Tools : When tools are supplied by the Client, the latter assumes the responsibility for the perfect concordance of these vis-a-vis drawings and specifications. If BORFLEX are asked to carry out controls, this service will be invoiced to the Client. The Client is responsible for any modifications to the tooling that BORFLEX deems necessary for the correct execution of the parts. BORFLEX does not guarantee the operational life of the tools and reserves the right to ask for a price revision of the parts if the tools are not suitable for manufacture under normal working conditions.
When the Client owns the tools, they are his entire responsibility, and he contracts, at his charge, an insurance covering their deterioration or destruction whilst at the premises of BORFLEX or with any sub-contractor of BORFLEX excluding any action against the latter. If tooling remains with the supplier longer than 2 years after manufacture of the parts, he has the right to proceed with their destruction if, after notification by registered letter with acknowledgement of reception, there has been no action after a delay of 3 months, requiring the Client to recuperate his tooling or to pass another order.
Tools are kept free of charge by BORFLEX as long as the greatest dimension does not exceed 1 meter, above which its storage gives rise to a charge of 30€ per year. BORFLEX may need to charge after approval from the client, a fee of rehabilitation tools to its client because of wear caused by the use of these tools.
When the tools are supplied by BORFLEX, they remain the full and entire property of BORFLEX even if they have been the subject of a distinct invoice for part of the manufacturing costs. Transfer of ownership to the Client of these tools, after manufacture and complete payment of the pieces, will only be possible after express agreement, involving payment by the Client of the full price of the tooling, including the value of any research carried out.
5) Materials supplied by the Client : When BORFLEX acts as service provider, the Client will deliver at his cost and at his own risk, the raw materials and/or components necessary and conformant to the execution of the order taking account of losses of at least 10% and the normal delays and hazards of manufacture.
6) Delays : The delays agreed at the time of the order extend to the goods being available at the factory gates and exclude any transport delay.
The delay starts from the date of our acceptance of the order and not the order date, and at the earliest from the date at which all the documents, materials and manufacturing details have been supplied by the Client, who must also complete all other prior conditions incumbent upon him, in particular tool settings and acceptance of prototypes. These limits shall be suspended in case of blocking of the account by BORFLEX.
Our delivery delays are given for information only and under no circumstances will this undertaking give rise to payment of late delivery penalties.
7) Transport – Delivery – Transfer of risks : BORFLEX will only carry out delivery and transport on behalf of the Client who, upon receipt of the invoice will fully reimburse these costs. Our products therefore, travel at the risk and peril of the Client, no matter what mode of transport chosen, nor what means of payment made. Consequently, it is for the Client to check the state of the goods on arrival, the quantity, and conformity of the goods with the information on the delivery note. Any anomaly concerning the transport must be reported to the correct carrier and BORFLEX separately.
The Client must immediately inform the supplier of any eventual problem with the transporter. He assumes the costs and risks associated with their return.
The risks are transferred to the Client ex works (Incoterms®2010: EXW), as soon as the goods are available in the BORFLEX stores. In case of delay for collecting the goods, BORFLEX will store them at the cost, risk and peril of the Client. This delay has no influence on the time of transfer of risk.
If the goods delivered do not conform to specification indicated in the order acceptance or are affected by obvious faults, the Client must, under pain of forfeiture, formulate his claims by registered letter with acknowledgement of reception within 8 days of delivery, and this, without prejudice to any claims to be made vis-a-vis the transporter.
No products will be accepted for return without our prior written agreement. In case of an agreed return, the transport costs will be at the Client’s charge.
8) Control – Reception : The Client accepts that the dimensions, colour, weight, hardness and characteristics of the products are subject to inherent variations due as much to the nature of the elastomer as their manufacture, and that because of this they are subject to usage tolerances in the absence of contrary specifications.
The Client assumes entire responsibility of the sought after industrial result that he alone knows with certainty, and as a consequence of the requirements that determine the specifications to be defined, in all aspects, of the pieces to be made, as well as the nature and means of inspection, controls and tests required for their reception. Acceptance by the Client of propositions aiming to improve the specification or a modification to the design of the piece, may under no circumstances be considered a transfer of responsibilty, the design remaining in this case at the exclusive charge of the Client.
Even in the absence of reception, the nature and extent of controls and necessary tests, the standards, as well as the tolerances of all sorts, must be detailed on the drawings and in the specifications attached by the Client to his request for tender and expressly accepted by BORFLEX.
The controls and tests requested by the Client may be carried out at his request either by BORFLEX or by a third party laboratory or organisation. This must be specified at the latest on conclusion of the contract, even though the type, the extent and the cost of these controls and tests remains at the Client’s charge.
If there is no specification concerning the controls to be done on the pieces, BORFLEX will only carry out simple visual and dimensional controls.
Pieces manufactured within the scope of a quality assurance system means that this condition must be specified by the Client in his call for tender and in his order and BORFLEX from their side must confirm this in their offer and eventual acceptance of the order.
When, under the terms of the contract, the goods have to be submitted for reception (“technical reception”), this will be carried out in the factory prior to expedition of the goods, at the Client’s charge, at the latest in the week following notice of the availability for reception sent by BORFLEX This is deemed to be contradictory, the costs of the receptioning agents and cost of certificate are at the Client’s charge. Tests carried out outside of factories designated by BORFLEX and without the presence of their personnel are not enforceable on him. Unless expressly stipulated, the controls carried out will conform to the requirements of the technical specifications normally applicable to the product.
In case of shortcomings by the Client or the control organisation, the pieces will be stored by BORFLEX at the Client’s cost and risk. If, a second notification by BORFLEX remains without effect in the 15 days following despatch of notification, the material is considered to have been received, and BORFLEX have the right to invoice it.
9) Industrial property : It is incumbent upon the Client to ensure, prior to his order that it is not protected (model, patent, design, …). The Client guarantees BORFLEX against all consequences of any legal action which may be brought against him due to him carrying out an order for pieces protected by industrial or intellectual property rights such as patents, brands, or registered designs, or by any private right.
Transfer of the pieces does not lead to the cession to the Client the industrial or intellectual property rights of BORFLEX on their methods of manufacture. This also applies to research that BORFLEX may propose to improve the quality or the price of the pieces by an original modification to the specification. The Client, if he accepts, must agree with BORFLEX on the conditions under which they may be used within the scope of the order.
Under no circumstances may the Client make use of the research carried out by BORFLEX for himself, nor divulge this, without having expressly acquired the intellectual property. The research, projects, drawings, prototypes may not be used, reproduced, patented, registered, or communicated to third parties without written authorisation from BORFLEX The Client authorises B.C.B., unless forbidden in writing, to show examples and models of pieces that he has produced at all exhibitions, fairs, salons, as well as on his publicity and commercial documents.
10) Reserve of property : Conformant to the requirements of the modified law dated 25 January 1985, BORFLEX expressly reserves the property rights of all goods delivered until integral payment of the sales price, interest, costs and accessories has been made. In the sense of the present arrangement, presentation of a banker’s draft, cheque or any other document creating an obligation to pay, does not constitute payment in this respect. Payment will only be considered to have been made when the effective price has been received.
In case of non-payment by the Client for the goods at the due date, BORFLEX may claim the goods at the Client’s cost and risk. BORFLEX may unilaterally and immediately make an inventory of unpaid goods held by the Client. Any earlier payments on account remain with BORFLEX In case the product is transformed, the Client already gives to BORFLEX the property of the object resulting from this transformation. If the product sold is incorporated into other objects not belonging to B.C.B., the latter becomes co-owner of the object produced prorata to the price of the product sold.
11) Cancellation clause : Without prejudice to the right of retention of ownership, the non-return of banker’s drafts with acceptance and domiciliation within 7 days of their being sent, the non compliance of any payment due, or a severe breach in the Client’s credit worthiness, in particular, the revelation of a protest or pledge of any of the business, will as of right, without notice and at the discretion of Supplier lead to formal demand for immediate payment of the outstanding amounts due and/or suspension of any deliveries, cancellation of all contracts in progress with conservation of any payment on account, retention of tools and parts until fixation of an eventual indemnity.
Cancellation will intervene as of right and without any legal formalities 15 days after expedition of a registered letter setting out the non-executed obligation.
12) Cancellation : The Client who cancels all or part of his order or who delays the delivery date, when BORFLEX are not responsible, is liable to indemnify him for all costs undertaken at the date of reception of the Client’s notification, without prejudice of the direct or indirect consequences that BORFLEX have to support as a result of this decision. On the other hand, BORFLEX may retain any sums already paid, for whatever reason, without prejudice to the penalties for late payment cited in article 3 above and eventual damages that may be due by the Client in preparation for any prejudice sustained due to the cancellation.
13) Guarantee : The products are guaranteed against any material fault or poor workmanship brought to our attention by registered letter with acknowledgement of reception, in the 8 days after delivery for obvious non-conformity, and for 2 months for other non-conformities, this delay being reduced to 1 month for items mass produced. After expiration of this delay counting from the date at which the goods are available in the BORFLEX stores, no claim will be admissible.
The BORFLEX guarantee is strictly limited to the supply as new of goods recognised as being defective after return, or to their reimbursement at their purchase price, or to them being made conformant according to explicit stipulations made on acceptance of the order, without any other indemnity of any sort. The guarantee does not cover any costs of control, assembly, commissioning, disassembly and removal from circulation of any defective piece, by the Client. All guarantee is excluded in case of wear or abnormal use of the goods, notably in case of usage non-conformant to their intended use, of deterioration due to accident, external forces, fortuitous cases or force majeure, negligence, failure of supervision or of maintenance.
All guarantees are also excluded if BORFLEX is not informed of the destination and conditions of use of the goods. Similarly, no claims will be accepted relative to goods that have been transformed or modified after delivery. Any actions to make the piece conformant carried out by the Client without the agreement of BORFLEX in principle or its cost leads to the loss of the right of guarantee. The replacement, making good any pieces after agreement between BORFLEX and the Client will have no modifying effect on the guarantee regime.
The guarantee as set out in this clause expresses the totality of our guarantee.
14) Limitation of responsibility : Conformant to article 1386-15 paragraph 2 of the Civil Code, any responsibility on our part is expressly excluded for any damage caused by a defective product to an item destined for professional use.
BORFLEX may not under any circumstances be held responsible for any shortfall direct or indirect, delays, production line stoppages, or consequential damages in particular, loss of profits, clientele, opportunities, revenues of any sort, personal prejudice, accidents or personal injury. The responsibility of BORFLEX in any case is limited to the product sold. On the other hand, BORFLEX may not be held vis-a-vis the Client for any compensation or reimbursement relative to any expense, engagement, creation, development, maintenance of activities, of its clientele or its business or relative to any prejudice no matter what, likely to result from the cancellation of any contract.
When BORFLEX intervenes as technical advisor, it is only held to an obligation of means and within the limit of the specifications which alone is authentic, between the parties. Therefore, it may not be held responsible for insufficiency of results, of operational disorder, nor for their consequences.
15) Force majeure : Any event independent of our wish and/or our control: strikes, social unrest, war, terrorism, lack of raw materials, or energy, natural catastrophe, act of state, accident etc. constitutes a case of “force majeure” and suspends the obligations of the parties for its duration with the exception of payments.
16) Attribution of jurisdiction : The GSC are regulated exclusively by French Law. In case of contestation relative to the validity, interpretation or execution of any one of the obligations that may not be settled amicably, the Tribunal de Commerce (Commercial Court) where the headquarters of the group are located is the only one competent no matter where delivery has taken place and/or the means of payment accepted, and even where there are several defendants.
For international sales, disputes will be settled by application of the regulations for conciliation and arbitrage at the International Chamber of Commerce, the arbitrage taking place in PARIS (F75000).