General terms and conditions of sale

GENERAL CONDITIONS OF SALE AND PROVISION OF SERVICES - SEPTEMBER 2020

 

CLESTRA HAUSERMAN SAS ("CLESTRA") designs, produces, sells (sales contract) and installs (service contract) prefabricated, removable or demountable office partitions that meet the changing needs of all businesses (hereinafter "PRODUCT").

1.GENERAL PROVISIONS - SCOPE

 

These General Conditions (hereinafter referred to as the "GCS"), govern the contracts of sale and provision of services (hereinafter referred to as the "CONTRACT(S)") between CLESTRA HAUSERMAN, a simplified joint-stock company with a capital of €13,806,287, whose registered office is located at 1 route du Docteur Albert Schweitzer 67411 ILLKIRCH, FRANCE, registered with the Strasbourg Trade and Companies Register under number 798 005 674, hereinafter referred to as "CLESTRA", and its professional customers, hereinafter referred to as "CUSTOMER(S)".In accordance with Article L 441-1 of the French Commercial Code, they constitute the sole basis for negotiations of the commercial relationship between the PARTIES. They apply without restriction or reservation to all Products sold and Services rendered by CLESTRA to its professional Customers, regardless of the clauses that may appear on the CUSTOMER's documents, and in particular its general conditions of purchase.

The information contained in CLESTRA's catalogues, brochures and price lists is given for information purposes only and may be revised at any time.

2.GOOD FAITH

 

In all matters relating to the CONTRACT, its interpretation and implementation, CLESTRA and the CUSTOMER will act in good faith at all times. Good faith in this context includes, without limiting this obligation, an obligation to cooperate, not to deliberately mislead and to implement the CONTRACT for the mutual benefit of both PARTIES by accepting that each is entitled to achieve its reasonable objectives.

3.INFORMATION - DUTY TO ADVISE

 

CLESTRA's speciality 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 CONTRACT, CLESTRA provided it with appropriate advice and all the information required for its consent.

The CUSTOMER thus acknowledges having read all the information that is directly or indirectly related and necessary to the content of the CONTRACT or the quality of the PRODUCTS and performances legitimately expected.

In this respect, the CUSTOMER acknowledges having been informed that tempered glass may be subject to Nickel Sulphide Inclusions (NIS) which may cause spontaneous breakage of the glass. These unavoidable inclusions inherent to the glazing do not constitute faults or hidden defects that could trigger CLESTRA's warranty and/or liability. The HST heat treatment can be chosen by the CUSTOMER, which reduces the risk of spontaneous breakage without completely avoiding it. When purchasing tempered glass, the CUSTOMER accepts the risk of spontaneous breakage due to NIS.

4.CONTRACT FORMATION - CONTRACT DOCUMENTS

 

The CONTRACT consists of the technical and commercial offer otherwise known as the Special Conditions ("the SC"), as well as these GCS to the exclusion of any purchase clause or general conditions of purchase specific to the CUSTOMER which appear on any document or correspondence, whatever the medium.

The CUSTOMER is invited to negotiate the proposed SCs, which supplement or amend these GCS. In this context, the CUSTOMER undertakes to communicate to CLESTRA all information necessary for the establishment of the CONTRACT. CLESTRA cannot be held liable for the lack of provisions relating to elements not reported by the CUSTOMER. In the event of contradictions between the SC and the GCS, the provisions of the SP shall prevail over those of the GCS.

On a supplementary basis, these GCS refer to standard NF P 03-001 as well as to DTU 35-1 in their latest versions in force.

The CUSTOMER accepts the transmission of documents and information, including during the pre-contractual phase, by electronic means. These exchanges will be considered contractual from the moment an acknowledgement of receipt is given by email 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 subject to any modification, termination or unilateral cancellation on the part of the CUSTOMER, except as defined in Article 12 of these GCS.

5.INTELLECTUAL PROPERTY

 

The intellectual property rights attached to CLESTRA PRODUCTS as well as the studies, projects, plans and documents of any nature provided by CLESTRA to the CUSTOMER are and remain its exclusive property. The CUSTOMER undertakes to return them at its expense, without delay, at CLESTRA's request. They may not be used, communicated, reproduced or executed, even partially, in any way whatsoever, without the prior written consent of CLESTRA.

6.ASSEMBLY AND MISCELLANEOUS WORK ON SITE

 

The CUSTOMER provides CLESTRA with a clean, accessible work site ready for installation under the conditions and within the deadlines specified in the SC and in accordance with the provisions of DTU 35.1.

Sufficient quantities of water, electricity, accesses, storage and installation areas required for performing CLESTRA's work will be made available to it within the contractual deadlines, in the vicinity of the works.

The CUSTOMER must inform CLESTRA as soon as it is aware of any significant factor which could have an impact on the performance of the work such as:

  • Difficulty of access or location of the installation,
  • Presence on site of other equipment or supplies that may affect the performance of the CONTRACT,
  • Performance of work in an occupied environment,
  • And, in general, the intervention of other contractor's prior to CLESTRA's intervention.

 

The CUSTOMER will be solely responsible, under the agreed terms, for the conformity of the site made available under the aforementioned conditions and no claims may be made against CLESTRA in the event of a delay attributable to the failure to comply with this obligation, which is decisive for the proper performance of the CONTRACT.

7.SALE OF SUPPLIES

 

All materials, goods, products, sold by CLESTRA, whatever they may be, are deemed to be free of any apparent defects and accepted by the CUSTOMER if no written reservation has been made on the delivery note.

8.PRICES AND REVISION OF PRICES

 

The prices are fixed in the CONTRACT on the basis of the information communicated by the CUSTOMER during the tender.

The prices are set exclusive of VAT and costs of any kind. Preparatory studies and estimates are provided free of charge if they are followed by a CONTRACT. Otherwise, CLESTRA reserves the right to invoice the study and travel expenses incurred in order to establish them as well as the return of the documents provided in accordance with the conditions of Article 5.

Unless otherwise specified, the technical and commercial offer, in its latest version, is valid for 30 days from the 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.

A revision the prices will not be applied but a revaluation of prices according to the actual date of intervention, the circumstances of the site and the increase in the price of raw materials and the cost of labour.

Moreover, 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 costly, in particular by an increase in the price of raw materials or labour, CLESTRA may initiate a renegotiation of the CONTRACT or request its termination in accordance with the provisions of Article 1195 of the French Civil Code.

9.PAYMENT TERMS

 

Payments are made at ILLKIRCH GRAFFENSTADEN, net and without discount, in Euros, 45 days end of month from the invoice date pursuant to Article L.441-10 of the French Commercial Code. All costs relating to any sale on credit or pledge, security, bond or other collateral will be borne exclusively by the CUSTOMER. Payment is made upon actual collection of the price, delivery of a draft or any other instrument creating an obligation to pay that does not constitute payment. The terms of payment may not be delayed or modified, under any pretext whatsoever, even in the event of a dispute.

The non-acceptance or non-return of a bill of exchange, the suspension of payment for any reason whatsoever, unauthorised offsetting, refusal to accept, constitute a payment default.

Payments may not be offset by the CUSTOMER without the prior written consent of CLESTRA.

The CUSTOMER is informed and accepts that CLESTRA may resort to factoring or any other Dailly assignment type financing operation.

In the event of non-payment or late payment, all sums owed by the CUSTOMER, 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, as from that date, the application of penalties at the interest rate applied by the ECB increased by 10 points, without prejudice to the application of the rate increase 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 French Commercial Code, any partial or total non-performance by the CUSTOMER or any delay will result in the payment of compensation for recovery costs in the amount of 40 Euros. This compensation will be due automatically from the first day of late 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 penalties.

This flat-rate compensation does not limit the amount of other costs that may be incurred by CLESTRA for the collection of its invoices. The costs and fees incurred by the contentious recovery of the sums due will always be borne by the CUSTOMER.

The payment of the above-mentioned late penalties is not discharging.

In addition, in the event of late payment persisting for more than fifteen working days after sending a formal notice to pay which remains unheeded, CLESTRA may immediately suspend the execution of the work until receipt of payment in accordance with the provisions of Article 1219 of the French Civil Code. This suspension of work will be carried out at the exclusive fault of the CUSTOMER, who will not be able to claim any compensation or penalty in the event of delay and will be solely responsible for any harmful consequences of said suspension.

10.PAYMENT GUARANTEE

 

The CUSTOMER must guarantee the payment of the sums due to CLESTRA under the CONTRACT in accordance with the law, in particular and without limitation: 

When it is project owner, the CUSTOMER undertakes to guarantee the payment of the sums due in accordance with the provisions of Article 1799-1 of the French Civil Code.

When CLESTRA acts as a subcontractor of its CUSTOMER, the CUSTOMER undertakes, in accordance with Article 6 of the law of 31/12/1975 relating to subcontracting, to deliver a guarantee or delegation of payment to the CUSTOMER before any start of execution. It 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 changes in the schedule and the contract end date.

Failure to deliver a compliant payment guarantee in favour of CLESTRA will incur the contractual liability of the CUSTOMER, who may not therefore invoke any penalty, deduction or offset of any kind whatsoever against CLESTRA.

11.SUBCONTRACTING

 

CLESTRA may entrust third parties with the performance of all or part of the CONTRACT under the terms of Law No. 75-1334 of December 31, 1975.

As such, the CUSTOMER may not refuse to approve a subcontractor presented by CLESTRA without justifying its refusal.

12.TERMINATION CLAUSE

 

Without prejudice to the provisions of Article 4 and Article 9, the CONTRACT will be automatically terminated or cancelled, at CLESTRA's discretion, if the CUSTOMER fails to perform one of its decisive obligations, fifteen days after formal notice which remains unheeded. In respect of damages, it is agreed that CLESTRA will retain all the sums already paid by the CUSTOMER, which only constitute the minimum contractual compensation. The CUSTOMER undertakes to compensate CLESTRA for all direct and indirect damage 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, of such nature as to delay, prevent or render the performance of the CONTRACT economically exorbitant, the CONTRACT will be suspended or terminated, without compensation, at the initiative of CLESTRA by registered letter with acknowledgement of receipt to the CUSTOMER.

The CUSTOMER may request the termination of the CONTRACT if it has a legitimate interest. This termination may only take place at CLESTRA's discretion and if the products have not been ordered or their manufacture has not started. In any event, this termination will 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 damages that may be claimed by CLESTRA.

13.DELIVERIES AND DEADLINES

 

The agreed delivery periods start to run from the signing of the CONTRACT and, if agreed, the payment of the deposit by the CUSTOMER. Unless otherwise specified in the SC, the delivery time is given for information only.

If the SC expressly provide for a binding delivery deadline, CLESTRA is obliged to comply with this deadline subject to:

  • the performance by the CUSTOMER of its own contractual obligations, in particular compliance with the conditions of availability of the site, the completion of all preparatory work, such as validation of the plans within the deadlines 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, disruption in transport or in 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 carriers,
  • the non-modification of the CONTRACT, even minor (product, quantity, deadline, condition etc.).
  • the non-occurrence of unforeseen services,
  • the non-occurrence of additional work,

 

Any delay in delivery or performance of the CONTRACT for reasons wholly or partly attributable to the CUSTOMER or a third party will automatically result in the postponement of the date of delivery or acceptance of the work, for a period of at least the same duration.

Any delay not attributable to CLESTRA and resulting in additional difficulties in the execution of the project will be subject to additional invoicing.

A delay in delivery or performance may only give rise to a penalty or damages if, directly and exclusively attributable to CLESTRA, it has caused real damage established by both parties and if the SC have expressly provided for the possibility of this with the reciprocal payment of a premium in the event of an advance. In addition, where applicable, the CUSTOMER must itself be liable to late payment penalties with respect to its own customer.

If such a penalty has been expressly stipulated, it may in no case exceed 5% of the price excluding VAT of the PRODUCTS whose delivery is delayed or, in the case of a service alone, of the price excluding VAT of the service.

14.PACKAGING, TRANSPORT, STORAGE

 

Unless otherwise specified in the SC, the price of the products is exclusive of costs, in particular transport, customs, installation and supervision.

Unless otherwise provided in the SC, the products travel at the risk of the CUSTOMER who, in the event of delay, damage or missing items, must exercise its recourse against the carriers in the forms and within the time limits necessary for the investigation of the claim and make the necessary reservations with the carriers to allow the exercise of its remedies.

If the products must 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 SC, packaging is never taken back by CLESTRA.

If the products are stored on the CUSTOMER's premises, the CUSTOMER must provide all the means necessary for storage under conditions that ensure the proper security and preservation of the products. The CUSTOMER has legal custody of the products. The costs of such storage are the responsibility of the CUSTOMER.

15.WARRANTIES AND LIABILITIES

 

The CUSTOMER benefits from the legal guarantees. In order to be able to invoke their benefit, the CUSTOMER must have complied with the payment terms provided for in the CONTRACT, notified CLESTRA, without delay and in writing, of the defects that it attributes to the products and provide all justifications as to the reality thereof. The CUSTOMER must furthermore give CLESTRA every facility to ascertain these defects and to remedy them.

The CUSTOMER only benefits from specific guarantees with regard to the technical and industrial performance of the products (acoustic performance, fire resistance, etc.) if they are specifically accepted by CLESTRA in the SC in terms of a results-based obligation.

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 VAT of the products or services in question. With the exception of gross negligence on the part of CLESTRA and compensation for bodily injury, CLESTRA will not be liable for any other compensation. Under no circumstances may CLESTRA's liability be sought by the CUSTOMER to compensate for indirect and/or immaterial damages, whether consequential or not, such as, in particular, loss of profit, operating loss or commercial damage.

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 incidental expenses.

CLESTRA may exercise the rights it holds under this clause on all products sold to the CUSTOMER, the latter being, by express agreement, deemed to be the unpaid products.

In the event of a claim by CLESTRA on the products delivered, pursuant to this clause, the resulting costs, in particular the return costs, will be borne by the CUSTOMER.

In the event of multiple claims, the reserved property secures all present or future claims against the CUSTOMER.

In the event of a claim, the insurance indemnity will automatically be subrogated to the products of which CLESTRA has remained the owner.

The CUSTOMER undertakes to keep the products in good condition and to insure them on behalf of CLESTRA until full payment has been made. Similarly, any modification or alteration of the products is prohibited. If the CUSTOMER violates this prohibition, it hereby assigns to CLESTRA the ownership of the products resulting from the processing in order to guarantee CLESTRA's rights.

The CUSTOMER undertakes to inform CLESTRA immediately in the event of receivership or liquidation, as well as in the event of seizure or any other measure affecting the property. It shall refrain from creating any security interest on the property and from carrying out any operation likely to prejudice CLESTRA's property rights.

The CUSTOMER shall refrain from selling the goods before full payment has been made without the prior agreement of CLESTRA. If the CUSTOMER violates this prohibition, it hereby declares to assign the receivable arising from the resale to a sub-purchaser. It may not collect the price owed by the sub-purchaser up to the amount of the sums remaining due to CLESTRA and it undertakes to inform the sub-purchasers of the assignment of the receivables of which CLESTRA is the beneficiary.

17.TRANSFER OF RISKS

 

Services: The transfer to the CUSTOMER of the risks of loss and damage to the work will be carried out as soon as the work is accepted, independently of the transfer of ownership, and regardless of the date of the CONTRACT. 

Sale only: The transfer to the CUSTOMER of the risks of loss and damage to the Product will be carried out as soon as the Products are shipped, independently of the transfer of ownership.

18.CONFIDENTIALITY

 

All information relating directly or indirectly to the CONTRACT, concerning the PARTIES, in particular their activities and finances, is of a confidential nature.

The PARTIES undertake to communicate this information, of which they aware, only to their managers and employees whose functions or missions are closely linked to the performance of the CONTRACT and to whom this information is imperatively necessary in the execution of their employment contract.

Furthermore, the CUSTOMER undertakes to maintain confidentiality with regard 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 specifically provided otherwise, to ensure that the information it receives or obtains:

  • is protected and kept strictly confidential and treated with the same degree of precaution or protection it grants its own information of the same importance;
  • is not used, in whole or in part, for any purpose other than that defined in the preamble to this Contract without the prior written consent of the Issuing Party;
  • is not communicated, nor likely to be communicated either directly or indirectly, to any third party;
  • is communicated only to its employees who have a need to know for the implementation of the partnership and for whom it vouches for their compliance with the obligations set out in the CONTRACT.

 

19.PERSONAL DATA

 

Personal data is understood 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. It is recorded in their customer file and is essential for the performance of the CONTRACT. This information and personal data is also kept for security purposes, in order to comply with legal and regulatory obligations. It will be kept for as long as necessary for the performance of the CONTRACT and any applicable guarantees.

Access to personal data will be strictly limited to CLESTRA employees authorised to process it due to their function. The information transmitted may be communicated to third parties to CLESTRA by a contract for the performance of outsourced tasks, without the CUSTOMER's authorisation being necessary.

As part of the performance of their services, third parties only have limited access to the data and are under the obligation to use it 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 prior consent of the CUSTOMER, unless it is forced to do so for a legitimate reason

If the data is to 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 a right of access, rectification, erasure and portability of data concerning it, as well as the right to oppose its processing for legitimate reasons, which it can exercise by contacting CLESTRA at the following email address dpo@clestra.com and the French data protection agency (CNIL).

20.APPLICABLE LAW - ATTRIBUTION OF JURISDICTION

 

The CONTRACT is subject to French law. Any dispute which cannot be settled amicably will be brought before the competent courts of CLESTRA's registered office, even in the event of multiple defendants or the introduction of third parties.

Neither bills of exchange, nor the acceptance as payment of cheques or bills of exchange of any kind in a town other than the place of CLESTRA's registered office may be a novation or derogation from this clause conferring jurisdiction.