General Terms Of Sale | General Terms of Sale |
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CINEMECCANICA France
1. GERERAL PRINCIPLES These General Terms of Sale apply in full to all sales of Cinemeccanica brand products, as well as to other brand products sold by Cinemeccanica France. These General Terms of Sale shall override any general terms of purchase or any other documents originating with the Client, regardless of their terms; any order sent to Cinemeccanica France shall entail acceptance, without any reservation, of Cinemeccanica France’s rates and these General Terms of Sale. Any other terms originating with the Client, provided they do not conflict herewith, shall be valid if previously accepted in writing by Cinemeccanica France.
No failure at any time by Cinemeccanica France to assert any of the provisions hereof shall be construed as a waiver of its right to subsequently assert such provisions.
2. CURRENCY
The currency of account and of payments shall be the Euro.
3. PRODUCT FEATURES – DEFINITION The products subject matter hereof are audio, video, cinematographic equipment and all peripheral products of the Cinemeccanica or other brand (hereinafter the “Products”), sold by Cinemeccanica France.
Cinemeccanica France shall be free to remove any Product from its catalogue at any time, without the Client being entitled to claim damages on that basis.
4. ORDERS
4.1. Product Orders All Product orders shall be sent by the Client to Cinemeccanica France in writing (by letter, fax or email). The Client’s orders must indicate the precise references and quantities of the Product(s) requested. No Product order sent to Cinemeccanica France shall be firm until it is accepted in writing (by letter, fax or email) by Cinemeccanica France (the “Order Confirmation”). The Order Confirmation shall indicate the unit price and total price of the Products ordered as well as the estimated date of delivery of the Products. Cinemeccanica France shall only take into account any modification of the volume and/or cancellation of a Product order, provided it:
4.2. Special Equipment Orders Special Equipment means any system comprised of Products assembled by Cinemeccanica France that is not customarily sold by Cinemeccanica France as such. Any Special Equipment request shall be the subject of a written quote sent by Cinemeccanica France to the Client by letter, fax or email. The quote shall indicate the technical specifications and features of the Special Equipment, the estimated date of delivery, any possible advance payment required by Cinemeccanica France as well as the term of validity of the Special Equipment offer. Special Equipment orders require written acceptance (by letter, fax or email), without any reservation, by the Client. Cinemeccanica France shall only take into account any modification of the volume and/or cancellation of a Special Equipment order, provided it:
For special orders of systems intended for the production of multiplex cinema theaters with one or more theaters, it is specified that no cancellation of an order or modification of its volume shall be accepted more than seven (7) business days from the date of written acceptance of the order by the Client.
5 SHIPMENT
5.1. Transfer of possession
Possession shall be deemed to pass upon the removal of the Products and/or Special Equipment from Cinemeccanica France’s warehouse by the carrier, before loading, unless otherwise specifically agreed and accepted in writing between the parties. Deliveries shall be ex-works (Incoterm).
5.2. Delivery Cinemeccanica France shall endeavor to deliver the Products and/or Special Equipment within the estimated lead delivery time indicated in the quote or in the Order Confirmation sent by Cinemeccanica France. Cinemeccanica France reserves the right to make partial deliveries on the basis of availability. Lead delivery times are given for information only, on an indicative basis, with actual times depending on the availability of carriers and the order of receipt of the orders. No exceeding of lead delivery times and/or partial or incomplete delivery may result in termination of the order or the payment by Cinemeccanica France to the Client of any penalties, damages and/or other indemnity payment whatsoever.
Lead delivery times shall be suspended in the cases listed in §14 below.
5.3. Carriage
The choice of carrier and the method of carriage used to ship the Products and/or Special Equipment shall be freely determined by Cinemeccanica France. The cost of carriage shall be borne by the Client.
6. TRANSFERT OF RISK Once possession of the Products and/or Special Equipment has passed in accordance with §5.1 above, the Products and/or Special Equipment shall be in the Client’s care and safekeeping, and any risk they may incur or cause on any basis whatsoever, including due to force majeure, fortuitous event or vicarious liability, shall be borne by the Client.
The Client shall take out, to the benefit of Cinemeccanica France, an insurance policy covering the risks in connection with the Products and/or Special Equipment for the period between the time when risks pass until the time when title passes. At Cinemeccanica France’s first request, the Client shall evidence being in good standing in the payment of insurance premiums, and shall inform Cinemeccanica France promptly of any event of a nature to affect the insurance policy.
7. PRICE Invoices shall be prepared on the basis of the rates applicable on the date of conclusion of the sale, meaning:
Prices are expressed before tax.
8. COMPLIANCE
8.1. Verification of Products When receiving Products and/or Special Equipment, the Client is strictly responsible for checking the condition and weight of parcels in the presence of the carrier, all costs and risk in connection with such verification being borne by the Client.
The Client is required to systematically approve, upon receipt of every order, the Products and/or Special Equipment and therefore to ensure their quality.
8.2. Damage during Carriage
In case of damage, theft or total or partial loss, the Client shall be responsible for issuing all explicit written reservations on the delivery slip, clearly indicating the nature of the damage or the amount of the shortage upon receipt of the Products and/or Special Equipment delivered by a carrier, and to confirm such reservations by registered letter with delivery confirmation or extra-judicial service to the carrier within three days of receipt of the Products and/or Special Equipment pursuant to §L.133-3 of the Commercial Code.
8.3. Reservations concerning Product Compliance Without prejudice to the measures to be taken by the Client as regards the carrier, any claim by the Client in connection with any apparent defective or noncompliance of the Products and/or Special Equipment delivered must be documented on the delivery slip and confirmed by fax sent to Cinemeccanica France with delivery confirmation within a period of twenty-four hours from the date of receipt. The Client is required to evidence the existence of the shortage as well as all defects concerning the Products and/or Special Equipment. Cinemeccanica France reserves the right to carry out any onsite verification. The Client notably agrees to allow Cinemeccanica France full latitude to carry out or have carried out any reports and/or controls that may seem necessary to it and to provide Cinemeccanica France free access to the place of storage of the Products and/or Special Equipment. Only Cinemeccanica France or any person duly mandated by it may carry out such controls and verifications. Regardless of any claim, the Client is required to perform all of its obligations, in particular as regards payment of the price on the due payment date.
Failing compliance with these terms, the Products and/or Special Equipment shall be deemed compliant and Cinemeccanica France’s liability may not be asserted, the Client being deemed liable for any harm arising out of noncompliance with this procedure. 8.4. Returns
No return of Products and/or Special Equipment shall be possible unless otherwise previously agreed to in writing by Cinemeccanica France. Any request to make a return to be sent either to the sales department or to the Cinemeccanica France point of sale within a period of five (5) days from the date of delivery. A notice of acceptance or agreement shall then be issued by Cinemeccanica France on a discretionary basis. The authorization of the return, confirmed to the Client by email or fax, shall be valid for ten (10) business days, after which time no return will be accepted. Only Products and/or Special Equipment covered by the authorization may be returned. Any references that are returned but not indicated in the authorization shall be immediately shipped back to the Client, with the return carriage costs at its charge. In case Cinemeccanica France accepts a return, the Products and/or Special Equipment must be returned in their original wrapping and packaging, and not have been used. Returns shall be made only to the following address: Cinemeccanica France
47 rue du Pré Saint Gervais - 93500 Pantin
9. STORAGE OF PRODUCTS The Client agrees to store the Products and/or Special Equipment delivered in a clean, cool (room temperature) and dry location that is not exposed to humidity or head. The Client agrees to evidence and to certify to Cinemeccanica France at its first request, the perfect condition of the storage location of the Products and/or Special Equipment delivered.
Any defects or impairment of the Products and/or Special Equipment resulting from abnormal storage or care by the Client shall not be covered by Cinemeccanica France’s warranty. 10. WARRANTY
Cinemeccanica France grants the Client a contractual warranty for the Products and/or Special Equipment for a term of one (1) year as of the date of their delivery, excluding consumables and day-to-day maintenance products. Under that warranty, Cinemeccanica France shall be required to replace the Products and/or Special Equipment, return carriage costs and any travel costs by a technician, if required, not being included, without prejudice to any special terms, without the Client being entitled to claim any damages from Cinemeccanica France. In case of any apparent defect or shortage that is effectively ascertained by Cinemeccanica France in relation to the specifications described in the order, the Client may only request the replacement of the noncompliance Products and/or Special Equipment and/or the supply of the missing quantities at Cinemeccanica France’s cost, without the Client being entitled to seek any indemnity, damages or cancellation of the order.
Any claim made by the Client in the terms and conditions set out in this section shall not suspend the Client’s obligation to make payment for the Products and/or Special Equipment concerned.
11. PAYMENT
11.1. Terms of Payment
Terms of payment are set at thirty (30) days from the end of the month of the invoice date, unless otherwise specifically agreed.
11.2. Method and Place of Payment
Invoices shall be paid by check, wire transfer, electronic bill of exchange or promissory note payable at Cinemeccanica France’s registered office.
11.3. Discount A discount of 0.3% shall be applied to any early payment, unless otherwise specially agreed in writing by the parties.
Cinemeccanica France reserves the right to increase or decrease the percentage of this discount on the basis of financial market fluctuations.
11.4. Deemed Date of Payment
The deemed date of payment shall be the date when Cinemeccanica France has received the funds.
11.5. Non payment – Late payment In the event of an invoice that is past due, including partially, Cinemeccanica France reserves the right to:
In addition, the Client shall automatically be applied late payment penalties of an amount calculated by applying a rate of 3 times the legal interest rate in force to the sums due.
All costs required for the application of these provisions shall be borne exclusively by the Client.
12. PENALTY
In case of nonpayment or partial payment, the Client agrees to pay, at Cinemeccanica France’s first request, a penalty equal to 15% (fifteen percent) of the sums due, in addition to late payment interest pursuant to §11, upon receipt of the registered letter with delivery confirmation sent by Cinemeccanica France.
13. RESERVATION OF TITLE
13.1 Title over the Products and/or Special Equipment sold by Cinemeccanica France shall only pass to the Client on the date of effective payment of all amounts owed by it (price and late payment interest, as applicable), including the price of associated services such, inter alia, carriage costs where owed. In this respect, for the purposes of this section, payment shall not be deemed to have been made by the delivery of commercial paper or promissory notes creating a payment obligation. Only effective clearance of the check, wire transfer, bill of exchange or promissory note has the value of payment in accordance with §11.
13.2. At Cinemeccanica France’s first request, the Client shall provide it with evidence that it has taken out an insurance policy covering, inter alia, the risk of fire, explosion, theft, water damage, broken machinery, and all property necessary for the conduct of its operations, including any Products and/or Special Equipment not owed by it. The Client agrees to maintain such coverage until title over the Products and/or Special Equipment sold passes to it.
13.3. Until title over the Products and/or Special Equipment sold passes to it, the Client may not issue any pledge over the Products and/or Special Equipment or use them as any form of security interest, or carry out any voluntary or involuntary assignment or other form of outright sale without recourse of all or part of its inventory without the prior written authorization of Cinemeccanica France, and without prejudice to its right of attachment of the property.
13.4. However, in the context of its ordinary course of business, unless it has been the subject of judicial receivership or similar proceedings, the Client is authorized to resell the Products and/or Special Equipment and agrees to assign to Cinemeccanica France, at the latter’s first request, all or part of the claims held by it over subsequent purchasers, up to the amounts remaining owed by the Client on whatsoever basis.
13.5. In the event the Client is authorized to resell the Products and/or Special Equipment, although it has not made payment in full to Cinemeccanica France, the Client agrees to inform the purchaser of the reservation of title encumbering the Products and/or Special Equipment concerned and of Cinemeccanica France’s right to seek from such purchaser either the return of such Products and/or Special Equipment or else payment of the price thereof that has not been paid by the Client. The Client agrees to conserve and procure that any subsequent purchaser conserves the Products and/or Special Equipment covered by the reservation of title in a good condition and such that they cannot be confused with other products or equipment.
13.6. Until title to the Products and/or Special Equipment sold passes to it, the Client shall store the Products and/or Special Equipment in a separate and individualized area of its premises and ensure proper conservation of the means of identification affixed by Cinemeccanica France to the boxes and cartons in which the Products and/or Special Equipment are delivered.
13.7. In the event any form of insolvency proceedings are opened against the Client, the latter shall immediately cease all sales of the Products and/or Special Equipment in respect of which full title has not passed to it and immediately notify Cinemeccanica France of the opening of such proceedings and send it a detailed inventory of the Products and/or Special Equipment in stock.
13.8. The Client is required to oppose by all legal means any third-party claims in respect of the Products and/or Special Equipment delivered, taking the form of an attachment, confiscation or similar procedure of a nature to compromise Cinemeccanica France’s proprietary rights in and to the Products and/or Special Equipment concerned, and, immediately upon being informed of any such third-party claims, to notify Cinemeccanica France and send it any document in connection therewith so as to enable Cinemeccanica France to defend its interests.
13.9. Cinemeccanica France reserves the right to verify, by any means of its choice, the Client’s compliance with the foregoing obligations, without the Client being entitled to oppose such verification.
13.10. In case the Client fails to comply with any of its due payment dates, or fails to perform any one of its obligations or breaches this reservation of title clause, Cinemeccanica France may seek the recovery of the Products and/or Special Equipment at the cost of the Client, without prejudice to any of Cinemeccanica France’s other rights or remedies, and without any formality being required other than the sending of a registered letter with delivery confirmation. Cinemeccanica France shall also be released from all of its obligations with respect to the Client in such event and Cinemeccanica France’s recovery of the Products and/or Special Equipment claimed shall carry with it the obligation for the Client to make redress for any loss arising out of the depreciation of the Products and/or Special Equipment concerned. Accordingly, the Client shall pay Cinemeccanica France a penalty in an amount set at 30% (thirty percent) of the pretax value of the Products and/or Special Equipment claimed.
14. FORCE MAJEURE Shall be assimilated to events of force majeure releasing Cinemeccanica France from its obligation to make delivery within the initially agreed times, strikes by all or part of the company’s staff or that of its customary carriers, any regulatory change, flood, war, production stoppage, inventory outage and, more generally, any causes recognized by the French courts as constituting events of force majeure. In such conditions, Cinemeccanica France shall notify the Client in writing, in particular by fax, within eight (8) days of:
Should the event continue for more than thirty (30) days from the date of its occurrence, the contract concluded between Cinemeccanica France and the Client may be terminated by the more diligent party, without either of the parties being entitled to claim damages. Such termination shall be effective on the date of first presentation of the notice of termination sent by registered letter with delivery confirmation.
15. DISPUTE RESOLUTION / GOVERNING LAW
These General Terms of Sale are governed by the laws of France. In the event any dispute arises out of or in connection with the performance and/or interpretation of these General Terms of Sale, the more diligent party may bring the matter before the Commercial Court of Paris, to which the parties expressly grant jurisdiction, including in case of summary proceedings, multiple proceedings, litigants or impleader.
16. MODIFICATION OF GENERAL TERMS OF SALE Cinemeccanica France reserves the possibility of modifying all or part of these General Terms of Sale, including its price list, on a unilateral basis, at any time and for whatsoever reason, subject to giving prior notice of fifteen (15) days.
Such modifications shall not affect orders that are already firm (pursuant to §4 above) on the date Cinemeccanica France gives notice of the modification.
17. INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS The Client benefits from a limited, nonexclusive, nontransferable right to reproduce and use the logos, trademarks, names or any other distinctive sign belonging to Cinemeccanica France (hereinafter the “Brands”), in the context, for the duration and for the exclusive purpose of reselling the Products and/or Special Equipment purchased from Cinemeccanica France hereunder. The Client agrees to comply with any and all guidelines given to it concerning the reproduction of the Brands. In this respect, the Client notably agrees to reproduce the Brands as per the size, color and location guidelines. The use of the Brands in any documents of materials of the Client, including any advertising or promotional materials, any packaging or other material or document of any other nature shall require Cinemeccanica France’s prior written consent. The Client agrees in this respect to ensure that no confusion may exist in the mind of third parties concerning such use or its status as an independent contractor. No rights whatsoever in or to the Brands referred to above shall be conveyed to the Client. The Client cannot, inter alia, directly or indirectly use, register or seek the registration as trademarks or trade names, signs, service marks, company names, domain names or other distinctive signs that are identical to the Brands or have a similarity to them likely to create confusion. |