CONDIÇÕES GERAIS DE VENDA

Edition 2018
I. GENERAL
1. Purpose and scope of the general terms and conditions
These professional general terms and conditions of sale codify the professional practices for the activities grouped within the Construction, Infrastructure, Steel Industry and Materials Handling Equipment Union. They comply with the rules of contract law and competition law and are filed with the Bureau des usages of the Registry of the Commercial Court of Paris.
In accordance with article L.441-6 of the French Commercial Code, they constitute
“the sole basis for commercial negotiation”. They therefore apply to all NAOTEC business and form the legal basis of the contract, unless there are special conditions. Any purchasing conditions of the Buyer have the value of a proposal. These general terms and conditions shall prevail over any contrary clauses formulated in any way by the Buyer if NAOTEC has not explicitly accepted them. Any waiver of these general terms and conditions, in favour of the Buyer
“justifies a consideration. Any order or acceptance of an offer from NAOTEC implies adherence to these general conditions, unless the parties negotiate otherwise.
The present terms and conditions apply to the sale of Material or Equipment and associated services. They do not apply to the provision of services when these are the main object of the contract.
For the purposes of these general terms and conditions, “writing” means any document drawn up by any means and, in particular, on paper or electronically.

2. Formation of the contract
Unless specifically stated otherwise, NAOTEC’s offer will be valid for one month. In the absence of any specific indication from NAOTEC, this one-month period will be deemed to constitute the “fixed period” within the meaning of article 1117 of the French Civil Code.
The sales contract shall only be valid once NAOTEC has accepted the Buyer’s order in writing.
In the case of the sale of spare parts, the dispatch of the parts by NAOTEC is deemed to be acceptance of the Buyer’s order. Any modification of the contract requested by the Buyer is subject to NAOTEC’s express acceptance.
The order expresses the Buyer’s consent in an irrevocable manner; the Buyer may therefore not cancel it, unless NAOTEC has given its express prior consent. In this case, the Buyer shall compensate NAOTEC for all costs incurred and for all direct and indirect consequences arising therefrom. In addition, the deposit already paid shall remain NAOTEC’s property.
Unless otherwise stipulated, the characteristics mentioned in NAOTEC’s catalogues, prospectuses and all advertising documents are only indicative.
NAOTEC reserves the right to make any modifications to its models that it deems appropriate, even after orders have been accepted. These modifications must not alter the essential characteristics and performance of the Equipment being sold.

3. Conformity and technical regulations
The products delivered shall comply with the technical regulations applicable thereto and with the technical standards for which NAOTEC has explicitly stated the product’s compliance.
Where NAOTEC is the manufacturer of the equipment, it shall be responsible for the technical regulations applicable to the design and initial marketing thereof. The Buyer is responsible for the regulations applicable to the implementation and use of the equipment. The offer incorporates the regulatory requirements and, more generally, the safety requirements known to NAOTEC at the time it is drawn up. In the event of a change in regulatory requirements between the submission of the offer and the complete execution of the contract, NAOTEC shall not be responsible for compliance, and shall send the Buyer an additional offer to this effect.
Likewise, if during the same period, NAOTEC receives information that it did not have at the time the offer was drawn up (complete plan of the installation, accessories, etc.), the modifications or additional equipment made necessary as a result shall be the subject of an additional offer.
NAOTEC is responsible for the regulatory compliance of the equipment components.
Any modification to the equipment not authorised by NAOTEC, carried out by the Buyer or a third party not approved by NAOTEC shall result in the cancellation of the CE declaration of conformity issued by NAOTEC. The replacement of any part having an impact on safety with a non-original part shall also result in the cancellation of the said declaration.
NAOTEC shall supply documents containing operating instructions (such as instruction manuals, user manuals, etc.). The user shall read them before commissioning. The Buyer shall be responsible for the use of the product under normal foreseeable conditions of use and in accordance with safety and environmental legislation in force at the place of use, as well as with the best practice of its profession.
In particular, it is the Buyer’s responsibility to choose a product that corresponds to its technical needs and, if necessary, to its application process, and to check with NAOTEC that the product is suitable for the intended application.

II. DELIVERY
1. Terms of delivery
Delivery times begin to run from the date of acknowledgement of receipt of the order, subject to receipt of all documents due from the Buyer for the commencement of performance of the contract and receipt of any deposit.
Whatever the destination of the Equipment and the terms of the sale, delivery is deemed to have taken place in NAOTEC’s factories or warehouses, unless otherwise stipulated.
It is carried out by simple notice of availability notified by any means. Direct handover of the Equipment to the Buyer or delivery of the Equipment in NAOTEC’s factories or warehouses to a shipper or carrier designated by the Buyer or, failing this, by NAOTEC, may take the place of such notice.
The Buyer must take possession of the Equipment within ten days of notification of its availability.
If the Buyer does not take the Equipment at the agreed place and time, and provided that its delay is not due to an act or omission of NAOTEC, it shall be obliged to make the payments provided for in the contract, delivery being deemed to have taken place. In this case, NAOTEC may choose to provide for its storage at the Buyer’s expense and risk, once the Equipment has been individualised, or to invoke the application of Article III.
Under no circumstances shall NAOTEC’s failure to meet the stated delivery date result in the cancellation of the order, the payment of damages or penalties of any kind.

2. Acceptance
If the Buyer fails to make a written claim within eight days of the date of delivery, the Material and the Equipment shall be deemed to have been received.
Any claim relating to transport must be made within three days (see Article IV).

III. RETENTION OF TITLE AND TRANSFER OF RISKS
NAOTEC retains full ownership of the goods which are the subject of the contract until full payment of the price in principal and accessories, in accordance with articles 2367 et seq. of the Civil Code and L. 624-16 et seq. of the Commercial Code.
From the time of delivery, the Buyer assumes responsibility for any damage that these goods may suffer or cause for any reason whatsoever.
Until full payment has been received, the goods may not be resold or transformed without NAOTEC’s prior agreement.
However, in the event of resale, NAOTEC may exercise a right of resale by claiming the debt directly from the end client.

IV. TRANSPORT AND INSURANCE
Transport, insurance, customs, handling and delivery operations are at the expense and risk of the Buyer. In this respect, the Buyer must ensure that these operations can be carried out according to the rules of the trade. Failing this, NAOTEC may refuse to allow these operations to be carried out, and shall inform the Buyer of this, with article II.1 being fully applicable.
The measures that NAOTEC may take in the interest of and on behalf of the Buyer with regard to insurance, transport, etc., in particular the fact of including the cost of transport in the price, shall not prevail over the principle of delivery in its factories or warehouses.
Any transport carried out by NAOTEC using its own material resources, whether or not the costs are to be borne by the Buyer, shall be deemed to be carried out under a contract of carriage separate from the contract of sale.
In the absence of instructions, NAOTEC shall proceed with shipment in the best interests of the Buyer. The Equipment will only be insured at the express request of the Buyer.
In all cases, it is the Buyer’s responsibility to carry out all verifications, to make all reservations upon arrival of the Equipment and to exercise, if necessary, against the carrier the recourse provided for by articles L. 133-1 et seq. of the French Commercial Code, within the time limits set by article L. 133-3.
The words “subject to unpacking” have no value vis-à-vis the carrier and cannot be accepted as a reservation.

V. PRICES
Prices are quoted in Euros, exclusive of tax and exclusive of customs, transport, insurance and packaging costs, “ex NAOTEC factory” (Exworks – Incoterms in force at the conclusion of the contract). In any event, any deductions at source shall be borne by the purchaser.
The price is valid only during the period of validity of the offer under the terms of article I.2 above.
The prices correspond exclusively to the products and services specified in the offer, taking into account the constituent elements of the accepted order. Services, as well as additional supplies or supplies delivered during assembly, are invoiced in addition.
Unless otherwise agreed, specific studies and pre-studies are not included in the price.

VI. PAYMENT TERMS AND DELAYS
Unless otherwise agreed, payments shall be made to NAOTEC’s domicile, net and without discount, and shall be due under the following conditions:

30% on order (deposit)
50% on acceptance
The balance by cheque, bank transfer or accepted bill of exchange, payable from the date of issue of the invoice, within the reference period of 30 days.
In the case of the sale of spare parts, and unless otherwise stipulated, prices are for payment in cash on the date of delivery.
Any clause or request aimed at setting or obtaining a payment period in excess of this 30-day period, which represents good practice in the profession, and unless there is an objective reason justified by the Buyer, may be considered unfair within the meaning of article L. 442-6-I 7° of the French Commercial Code.
The invoice shall state the date on which payment must be made. Sums paid before delivery are considered to be deposits.
Payments on account are always made in cash and must be invoiced. VAT is payable in accordance with the terms of Articles 256 II and 269 of the French General Tax Code.advance payments are made without discount.
In the case of payment by bill of exchange, acceptance must be made within seven days of it being sent.
Any failure to pay a due date by the agreed date or any refusal to accept a bill of exchange when presented shall, without prejudice to the right to enforce the retention of title clause :

on the one hand, if NAOTEC sees fit, the suspension or cancellation of all current orders
on the other hand, pursuant to article L.441-6 al. 12 of the French Commercial Code, any late payment shall automatically render the following payable, from the first day following the payment date shown on the invoice:
1/ late payment penalties
Late payment penalties will be determined by applying the refinancing rate of the European Central Bank plus ten points.
2/ a fixed indemnity for collection costs of 40 euros, pursuant to article D. 441-5 of the French Commercial Code.
By virtue of the aforementioned article L. 441-6, when the recovery costs incurred exceed the amount of this fixed indemnity, NAOTEC is also entitled to request additional justified compensation.
finally, if NAOTEC sees fit, the automatic termination of the sales contract one month after it has given formal notice to the Buyer, by registered letter with acknowledgement of receipt, to comply with its obligations. In this case, and without prejudice to any damages, the Buyer, in addition to its obligation to return the goods for which it is responsible, shall owe NAOTEC a termination indemnity, set at 20% of the price, valued at the date of termination. This compensation will be deducted from payments already received.
VII. NEW EQUIPMENT WARRANTY
1. Scope of the warranty
NAOTEC undertakes to remedy any operating defect resulting from a fault in the design, the materials themselves or the execution (including assembly if this operation is entrusted to it), within the limits of the provisions below.
The warranty shall automatically cease to apply, and the declaration of conformity shall lapse, if the Buyer uses non-original spare parts, or undertakes maintenance, repair or modification work himself or through an unauthorised third party, without NAOTEC’s written approval.
The guarantee is excluded:

in the event of damage resulting from a lack of maintenance and supervision and, in general, from any handling that does not comply with the manufacturer’s written instructions (the normal use instructions for which appear in the instruction manual) or with the regulations in force
for defects resulting in whole or in part from normal wear and tear of the part, deterioration or accidents attributable to the Buyer or an unauthorised third party
in the event of a defect arising from parts supplied by the Buyer and incorporated at its request during manufacture
in the event of faults committed by the Buyer in connection with the performance of the contract
in the event of force majeure as defined in Article IX.
If the Equipment is used outside mainland France, NAOTEC may modify the scope and terms of the warranty as defined in these conditions.
Unless otherwise stipulated, no warranty applies to second-hand Equipment; the transfer of the Equipment by the first user terminates the warranty.
No contractual warranty applies to spare parts which are not fitted by NAOTEC or a third party approved by NAOTEC.

2. Obligations of the Buyer
In order to benefit from this guarantee, the Buyer must, without delay, notify NAOTEC in writing of the defects it attributes to the Equipment and provide full proof of the reality of these defects; it must give NAOTEC every facility to ascertain the defects and remedy them.

3. Duration and starting point of the warranty
The normal warranty covers a period of one year from the date of delivery.
In the event of the sale of spare parts, the contract will indicate the contractual warranty period granted by NAOTEC.

4. Procedures for exercising the guarantee
The contract defines the terms and conditions for exercising the warranty, failing which, the following terms and conditions shall apply:

for the duration of the warranty, NAOTEC is obliged to replace any parts found to be defective after examination by its technical department, or, if it prefers, to repair them free of charge.
the warranty excludes any other service or compensation
repairs under the warranty are carried out in the workshops designated by NAOTEC, it being the Buyer’s responsibility to send there, at its own cost and risk, the Equipment to be repaired or the defective parts when the intervention on the Equipment takes place outside its workshops, NAOTEC reserves the right to charge the Buyer for the travel and accommodation costs of its agents.
Nevertheless, the labour costs related to the disassembly or reassembly of these parts shall be borne by NAOTEC when these operations are carried out by its staff or agents.
Replaced parts become the property of NAOTEC and must be returned immediately after replacement.
The reshipment of the Equipment not covered by the warranty is at the Buyer’s expense and risk.

VIII. LIABILITY
Definition of liability
NAOTEC’s liability is strictly limited to compliance, by itself or its subcontractors, with the contractual specifications expressly agreed.
NAOTEC’s liability is excluded in respect of elements integrated by the Buyer into the equipment, and in respect of the integration of the equipment into a whole.
Limits of Liability
NAOTEC’s civil liability, for any cause whatsoever, with the exception of bodily injury and gross negligence, is limited to 50% of the amount of the supply received, exclusive of tax.
NAOTEC shall not be obliged to compensate for the harmful consequences of the Buyer’s or third parties’ faults relating to the execution of the contract, nor for any damage resulting from the Buyer’s use of technical documents, information or data emanating from the Buyer or imposed by the latter.
Under no circumstances shall NAOTEC be held liable to compensate for direct and/or indirect immaterial damage, such as operating loss, loss of profit, loss of opportunity, commercial loss, loss of earnings, etc. In the event that penalties and indemnities have been mutually agreed, they shall have the value of a lump sum indemnity, in full discharge of liabilities and shall be exclusive of any other penalty or indemnity.
Exclusions of liability
NAOTEC is not liable for any of the circumstances set out in article VII.1 of these General Conditions. It is therefore expressly agreed that each of these cases of exclusion of the contractual guarantee also constitutes a case of exclusion of NAOTEC’s liability. Implementation of liability
NAOTEC’s liability may only be incurred if the Buyer has previously demonstrated the existence of damage, the existence of NAOTEC’s fault and the fact that this damage was caused by this fault, these elements only being able to be established, in the absence of a court decision having the force of law, by a previously negotiated and agreed settlement, in accordance with legal requirements.
NAOTEC is not obliged to compensate for the harmful consequences of faults committed by the Buyer or third parties in connection with the performance of the contract.
The Buyer waives any recourse and guarantees the waiver of recourse by its insurers or third parties in a contractual relationship with it, against NAOTEC or its insurers beyond the limits and exclusions set out in these General Terms and Conditions.

IX. FORCE MAJEURE
Neither of the parties to the contract may be held liable for its delay or failure to perform any of its obligations under the contract if such delay or failure is the direct or indirect result of force majeure.
Force majeure occurs when an event beyond the control of a party, which could not reasonably have been foreseen when the contract was concluded and the effects of which cannot be avoided by appropriate measures, prevents the performance of its obligation.
Each party will inform the other party, without delay, of the occurrence of a case of force majeure of which it is aware and which, in its opinion, is likely to affect the performance of the contract.

If the impediment is temporary, performance of the obligation is suspended unless the resulting delay justifies termination of the contract. If the impediment lasts for more than one month, the parties must consult each other as soon as possible to examine in good faith the progress of the contract. If the impediment is definitive, the contract is terminated by operation of law under the conditions set out in articles 1351 and 1351-1 of the Civil Code, if the party who is prevented so wishes.
Without this list being exhaustive, it is expressly agreed that the following events in particular are considered to be cases of force majeure:

occurrence of a natural disaster
earthquake, storm, fire, flood, etc.
armed conflict, war, civil conflict, terrorist attacks
labour dispute, total or partial strike at NAOTEC or the Buyer
industrial action, total or partial strike by suppliers, service providers, transporters, postal services, public services, etc.
imperative injunction from the public authorities (import ban, embargo)
operating accidents, machine breakdowns, explosions
supplier failure or default.

X. IMPREVISION
It is agreed that, in the event of a change in circumstances unforeseeable at the time of conclusion of the contract and rendering performance excessively onerous for one of the parties, the parties shall renegotiate the amendment to the contract in good faith. It is further agreed that, without this list being exhaustive, the following events in particular are covered: changes in the price of raw materials, changes in customs duties, changes in exchange rates, changes in legislation.
If renegotiation is refused or fails, the parties may agree to terminate the contract, on a date and subject to conditions to be determined by them, or ask the court, by mutual agreement, to adjust the contract.
If no agreement is reached within a reasonable period of time, the court may, at the request of either party, revise the contract or terminate it, on the date and under the conditions that it shall determine, in accordance with article 1195 of the French Civil Code. NAOTEC therefore declares that it does not accept in advance the risk of such changes in circumstances. No stipulation of a firm price or other mention may be interpreted as such an acceptance of this risk.

XI. TERMINATION
In the event of a serious breach by one of the parties of an essential obligation and notwithstanding the provisions of Article II.1, the other party may terminate the contract ipso jure after 30 days’ formal notice specifying the alleged breach and the wish to terminate by virtue of this Article.
This provision does not preclude the right to compensation for loss suffered as a result of the total or partial non-performance of the contract.
Any application of article 1222 of the Civil Code, relating to the Buyer’s right to have the obligation performed itself, is expressly excluded.
No price reduction requested on the basis of article 1223 of the Civil Code may be implemented without the prior and express agreement of NAOTEC.

XII. MISCELLANEOUS
1. Confidentiality
The parties mutually undertake a general obligation of confidentiality relating to all confidential oral or written information, whatever it may be and whatever the medium (discussion reports, plans, exchanges of computerised data, activities, installations, projects, know-how, products, etc.) exchanged within the framework of the preparation and performance of the contract, except for information which is generally known to the public or information which will become generally known to the public other than through the fault or act of one or other of the parties.
Consequently, the parties undertake to :

to keep all confidential information strictly secret, and in particular never to disclose or communicate, in any way whatsoever, directly or indirectly, all or part of the confidential information, to anyone whatsoever, without the prior written authorisation of the other party
not to use all or part of the confidential information for any purpose or activity other than the performance of the contract
not to copy or imitate all or part of the confidential information.
The parties undertake to take all necessary measures to ensure compliance with this obligation of confidentiality, throughout the term of the contract and even after its expiry, and undertake to ensure that all their employees comply with this obligation. This obligation is an obligation of result.
NAOTEC retains full ownership of the intellectual property and know-how relating to its technical documents, projects, software, design plans and drawings, and equipment supplied, even in the event of the conclusion of a design contract between the parties. Any transfer of intellectual property rights must be the subject of a written contract between the parties.

2. Waiver
The fact that NAOTEC does not avail itself of any of the clauses of the general terms and conditions at a given time may not be interpreted as a waiver of its right to do so at a later date.
In the same way, the nullity of any of the clauses of these conditions will not affect the validity of the other clauses.

XIII. DISPUTES AND APPLICABLE LAW
The parties undertake to attempt to settle their differences amicably before bringing the matter before the competent court; to do so, they will have the option of resorting to mediation, such as the Médiation des Entreprises. In the absence of an amicable agreement, the Commercial Court within whose jurisdiction the registered office of NAOTEC is located shall have sole jurisdiction, regardless of the conditions of sale and the method of payment, even in the event of a third party claim or multiple defendants.
French law alone is applicable to the contract and its consequences.

Professional general terms and conditions filed with the Bureau des Usages Professionnels of the Paris Commercial Court on 27 March 2018 under No. D2018032008.

ZI du Chail, 17800 Pons FRANCE – Tel: + 33 (0) 5 46 90 88 30 – Fax: + 33 (0) 5 46 90 88 99
E-mail: contact@naotec.com
S.A.S. with capital of €28,500 – RC 791 356 454 6 RCS Saintes – Siret 791 356 454 00011 – Code APE 2562B