Buying Conditions France
General Terms and Conditions of Purchase
1. Scope –
1.1. Unless otherwise agreed upon by SEMIKRON and Supplier (collectively referred tohereafter as the Parties), these General Terms and Conditions shall apply to anypurchase order issued by SEMIKRON (the Order) for materials, equipment or servicesof any kind (hereafter referred to as "Supplies") and shall become, upon its conclusion,the subject matter of the contract entered into by SEMIKRON and Supplier for thedelivery of Supplies.
1.2. Notwithstanding anything to the contrary stated in Supplier's conditions of sale,Supplier agrees that the acceptance of SEMIKRON’s Order constitutes Supplier'sexpress disclaimer of all its conditions of sale and Supplier's.
1.3. Acceptance of the Order by Supplier will occur by an acknowledgment of receipt,commencement of performance or by delivery of any items ordered. Acceptance of theOrder shall mean that the Supplier has understood (i) the exact content and extent of allcontractual provisions of the present General Terms and Conditions of Purchase, (ii) theexact content and extent of the obligations which fall upon him under these GeneralTerms and Conditions of Purchase and the subsequent Order, and (iii) the exact contentand extent of all rights which SEMIKRON is entitled to under these General Terms andConditions of Purchase and that SEMIKRON has provided the Supplier with allclarifications necessary and/or requested by Supplier to perform its duties under thepresent agreement.
2. Orders –
2.1. Orders shall be in writing, by Email or fax, or by any written means provided that the Party to whom such Order is sent acknowledges receipt thereof. Notwithstanding Article 1.3 above, Supplier shall, forthwith and no later than five (5) business days from receiptof an Order, confirm SEMIKRON its acceptance of Order in writing. Once the 5 dayshave passed, the order will be considered as accepted.
2.2. SEMIKRON, at its sole discretion and subject to a written notice one (1) calendarweek prior to the confirmed delivery date, may amend the quantity and the delivery dateas it best suits its production plan and its customer’s requirements. Supplier shallpromptly inform SEMIKRON of any price and/or schedule alterations needed due tochanges requested by SEMIKRON, and such alterations shall be agreed upon in writingby the Parties in an amendment to the Order or in a new Order.
2.3. SEMIKRON shall have the right to cancel the Order, without any further liability toSupplier, within the first five (5) business days from the date of Order, or for lack ofacknowledgement from Supplier beyond the term of five (5) business days from the dateof Order, or in case of failure by Supplier’s to deliver the Supplies beyond the term of 5(five) business days from the confirmed delivery date.
3. Prices, Invoicing, and Payment Terms –
3.1. Unless otherwise agreed upon by the Parties in writing, the price of Supplies (thePrice) are exclusive of VAT and take into consideration the applicability of the DDPSARTROUVILLE (78 – FRANCE) as per the ICC INCOTERMS 2000 Edition.
3.2. The applicable Price is the Price mentioned in SEMIKRONs Order or resulting fromprice calculation formulas as stipulated in the Order. Such Price shall always bestipulated firm, and not subject to revision or escalation, or any adjustment due tocurrency fluctuation.
3.3. Unless otherwise agreed upon in writing, the Price is fully inclusive of standardpackaging and of any and all costs, risks and profits related to or in connection with theperformance of the Order.
3.4. All Price references and Price agreements are understood to be in Euros, andinclude customs duties and taxes (except VAT), provided that nothing to the contraryhas been stated or agreed upon in writing by the Parties.Supplier’s invoices are to be sent to SEMIKRON FRANCE, 130, route de Cormeilles –78500 SARTROUVILLE, FRANCE and must state the Order identification set out in theOrder including the names of the individual order items.
3.5. Any payment made by SEMIKRON to Supplier shall under no circumstances beconstrued as an acknowledgement of the Supplies merchantability or conformity toSEMIKRON’s specifications or as a waiver of warranty by SEMIKRON.
4. Packaging and Shipping Documents –
4.1. Unless a special packaging is specifically requested by SEMIKRON in the Order,Supplier shall deliver the Supplies with adequate packaging, taking into account thenature of the Supplies and taking all measures to protect the Supplies from bad weather,corrosion, loading accidents, handling, transportation or storage constraints, vibrationsor shocks, etc. In any case Supplies shall be packed, packaged, marked and otherwiseprepared for shipment in a manner which is (i) in accordance with good commercialpractice, (ii) comply with current European regulations and norms in terms of safety,health and environmental protection at the time of shipping, (iii) acceptable to commoncarriers for shipment at the lowest rates and (iv) adequate to insure safe arrival of thesupplies at the named destination. In case Supplier is in charge of special packaging, itshall comply with all the corresponding instructions provided by SEMIKRON.
4.2. Supplier shall mark all packages and containers with all necessary lifting, handling,and shipping instructions, clearly identifying and marking items that need special care orspecial storage and/or transportation conditions, indicating the precautions to be taken.Supplier shall label each package and container with shipping information, purchaseorder numbers, date of shipment, and name and address of sender and recipient.4.3. Supplier shall be considered solely responsible for any damage to the Supplies orany extra expenses due to incorrect or inadequate packaging, marking or labelling.
5. Delivery –
5.1 Supplies shall be delivered in accordance with DDP ICC INCOTERM 2000 asspecified in Article 3.1. above unless otherwise agreed upon in writing by the Parties.The deliveries will be accompanied by a delivery note clearly showing the delivery notenumber, the full order number, the order lines delivered, the SEMIKRON Francereference numbers, and the delivered quantities. The non fulfillment of these conditionsmay lead us to refuse the delivery. The deliveries should refer for each position to a fullset of goods, unless Semikron France has authorized a partial delivery. The invoices willbe considered only when the order line has been delivered in totality.
5.2. Any Supply delivery that does not comply with the terms of the Order or theseGeneral Terms and Conditions of Purchase is subject to rejection by SEMIKRON. Insuch a case, Supplier shall, at its own expense, take back non-accepted deliveredSupplies within five (5) business days from the date of receipt of the non-acceptancenotice sent by SEMIKRON. Beyond the term of this five (5) day period, SEMIKRON willreturn the Supplies to Supplier at Supplier's expense.5.3. Acceptance of the Supplies shall not be deemed as a waiver of the warranties asper Section 8 below.
The supplier commits to inform SEMIKRON France, as quick as possible, about any nonconformity, he could discover in giving all possible information and possibly proposal ofcorrective actions. SEMIKRON France will then confirm in writing its acceptation or nonacceptation of non conform goods and the above mentioned proposal.
6. Transfer of Title/Risks –
6.1. Regardless of reservation of title or property right clauses from Supplier and unlessotherwise agreed in writing by the Parties, transfer of title shall take place upon thedelivery of the Supplies at SEMIKRON’s premises or at the destination otherwise agreedupon by the Parties.
6.2. Notwithstanding the provisions of Article 6.1, hereabove, title to Custom-tailoredParts shall pass onto Buyer as soon as Supplier has started the manufacturing of thesaid Parts.
6.3. Unless otherwise agreed upon by the Parties, risk of loss shall pass ontoSEMIKRON no earlier than the Actual Delivery Date of the Parts according to DDP atsite as per ICC INCOTERM 2000 as provided in Article 5.1 above.
6.4. In case of Non-conformity, the transfer of title and risk of loss shall be delayed to thereplacement delivery date.
TOOLING EQUIPMENT :
SEMIKRON France can deliver or buy from the supplier a tooling equipment for theneeds of the contract.This tooling is and remains the property of SEMIKRON France. The supplier isresponsible for maintaining this tooling equipment in good condition of use, and forchecking its normal wear. Any damage or deterioration of the tool, caused by a wronguse or a negligence from the supplier will be repaired by the supplier, who will bearthe repairing costs. SEMIKRON France can, at any time, ask for the restitution of thetool and this without any additional costs.
7. Time Schedule and Delays –
7.1. Time schedule and delivery date(s) are specified in the Order. Acceptance of theOrder by Supplier means Supplier’s irrevocable commitment to meet the time scheduleand delivery date(s) thereby set out.
7.2. Time schedule and delivery date(s) specified in the Order are of the essence of theOrder and can be changed only in the conditions specified in Articles 2.2 and 2.3 above.
7.3 Early deliveries shall not be allowed unless accepted in writing by SEMIKRON inadvance.
7.4 Supplier shall promptly inform SEMIKRON in writing of the full details ofany events which may delay the execution of the Order, without however being entitledto extend time of delivery thereof. Supplier shall make all reasonable efforts to minimizethe delay in delivery and the consequences of the delay. In case of non delivery two (2)business days from the confirmed delivery date and (ii) in the event of any delay that hasnot been notified in advance in writing by Supplier, SEMIKRON shall have the right tocancel the Order without indemnity or compensation to Supplier and without prejudice toSEMIKRON's right to claim any damages, loss or prejudice arising from the delay.
7.5 In the case of delays in delivery from the initial Delivery Date, SEMIKRON shall beentitled to liquidated damages per debit note calculated on the basis of the price of thedelayed Supplies at the rate of zero-point-three-percent (0.3 % ) per calendar daystarting from the third business day of delay up to a maximum of twenty percent (20%)of the price of the delayed Supplies or returned to Supplier the delayed Supplies at Supplier’s expense plus a fixed surcharge of 160.00 EUR for handling. Such liquidated damages shall be without prejudice to any other right of remedies SEMIKRON may have against Supplier.
8. Warranties –
8.1. Unless otherwise agreed in writing by the Parties, Supplier shall warrant for a periodof twenty four (24) months, that the Supplies (i) comply with all the specifications,blueprints, drawings and data of Supplier (in any format) or provided by SEMIKRON andaccepted by Supplier or jointly agreed by the Parties in writing, and with all therequirements and conditions specified in the Order, (ii) are of good workmanship andfree from any design, material, manufacturing or operating defect, (iii) are ofmerchantable quality. The warranty concerns the replacement or the repair of defectgoods, the labor costs as well as the transport and packing costs and the travel costs ifany.
8.2. Any order of Supplies is construed as including the delivery of all parts required fora complete operation of the Supplies, even though not expressly mentioned bySEMIKRON.
8.3. During the warranty period, SEMIKRON shall notify Supplier in writing of any defector malfunction of Supplies and Supplier shall forthwith and at its own expense replace orrepair the Supplies or correct the defect or malfunction. Supplier shall provide anothertwenty four (24) month warranty period for any replacement, repair or correction madeduring the warranty period, starting on the day of successful and satisfactory completionof such replacement, repair or correction.
8.4. If Supplier does not satisfactorily replace or repair the Supplies or correct the defector malfunction, SEMIKRON shall have the right, at SEMIKRON's exclusive option andnotwithstanding SEMIKRON’s right to seek for a remedy, to (i) make the replacement,repair or correction itself at Supplier's sole cost and expense, or (ii) have suchreplacement, repair or correction made by a third party at Supplier's sole cost and expense, or (iii) to cancel the Order and obtain from Supplier total refund of thepurchase price paid for the defective or malfunctioning Supplies without prejudice toSEMIKRON's right to claim any damages, loss or prejudice arising from the defect ormalfunction.
8.5. Supplier agrees that the warranties specified herein shall be in addition to anywarranties implied by law or expressly granted by Supplier other than specified hereinand to any other warranties, whether express or implied, applicable to the relevantpurchase. They shall survive any inspection, test, acceptance and payments bySEMIKRON, as well as any termination of Orders or of agreements related to Orders.
9. Non-transferability – Subcontracting –
9.1. The Supplier may not sell or transfer all or any part of the Order, even free ofcharge, without SEMIKRON's prior approval in writing.
9.2. Supplier shall not even partly subcontract the Order, without SEMIKRON's priorapproval in writing. Should the Supplier be authorized to subcontract all or any part ofthe Order to a third party, the Supplier shall remain solely and fully responsible andliable to SEMIKRON for performance of the Order and these General Terms andConditions of Purchase. The Supplier shall compensate and hold SEMIKRON harmlessfrom any claim from the subcontractor(s).
10. Intellectual and Industrial Property Rights –
10.1. Supplier warrants that it has created, or acquired or has been duly entitled to usethe intellectual property rights attached to Supplies, including any methodology,furnished under this Agreement, and that he has not infringed any intellectual propertyrights of third parties in manufacturing or furnishing such Supplies, and that the usethereof by SEMIKRON will not infringe any intellectual property rights of third parties.
10.2. Supplier shall defend, indemnify and hold SEMIKRON harmless from theassessments by any third party of any damages arising out of the failure of Supplier tomeet with his obligations in regard to Article 10 above and to pay all costs incurred bySEMIKRON for the defence of such claim or action, including reasonable attorney fees,and to indemnify SEMIKRON for any damage, loss and prejudice suffered bySEMIKRON as a direct or indirect consequence of such claim or action.
UPDATE OF DOCUMENTATION
The supplier should make sure that the documentation, he is using to make a piece, isupdated (last version). In case of goods for resale, he should inform SEMIKRON Franceof all modification done on one of its items, and if needed provide with a newdocumentation clearly showing this modification.
11. Liability and Insurance –
11.1. Supplier shall be solely responsible and liable towards SEMIKRON and any thirdparty for any physical injury, property damage or any other material damage, loss orprejudice arising from performance by Supplier or Supplier's employees, agents orsubcontractors, of Supplier's obligations under the Order.
11.2. Supplier shall take out adequate insurance policies to cover any liability that,subject to clause 11.1 above, might arise towards SEMIKRON, and hereby agrees toindemnify and hold SEMIKRON harmless against any such damage and liability.
12. Force majeure –
Neither party shall be responsible or liable for any delay or failure in performancearising out of any occurrence or contingency beyond its reasonable control,including but not limited to, laws, orders, regulations or directions of anygovernment having jurisdiction over the Parties hereto, or any department, agency,corporation or court thereof, or by war, riots, act of public enemies, strikes or otherlabor disturbances, fires, floods, acts of God, earthquake, or any causes of like ordifferent kind (the Events) to the extent such delay or failure is directly caused byany such event. The Party concerned by the Events shall promptly notify the otherParty thereof. Each Party shall be entitled to terminate the contract without liabilityin the case the Events continue for a 30 (thirty) day or more period.
The supplier should inform SEMIKRON France in writing within maximum 10 days afterthe date of the occurrence of a case of absolute necessity, in mentioning the nature ofthe event, its probable duration and its generated consequences. The non fulfillment ofthe above-mentioned procedure will entail the supplier’s loss of all rights to the currentclause and will be considered as breaking its contract obligations. In case whereconsequences would last more than 1 month, SEMIKRON France would have the rightto cancel the contract fully or partially and this with no condition.
13. Confidentiality –
13.1. All information provided to Supplier by SEMIKRON or one of its affiliates orrepresentatives, including, but not limited to, technical, industrial, commercial, orfinancial information, no matter how said information may have been provided (orally, inwriting, or other), including but not limited to the designs, drawings, descriptions,specifications, reports, microfilms, computer disks, software and documentation relatedthereto, samples, prototypes, etc. shall be confidential (the "Information").The Information shall also include information of which the Supplier's employees oragents, suppliers, subcontractors, representatives, and/or permanent or temporarycollaborators may become aware during the Order.
13.2 The Information may only be used in connection with the Order. Supplier shall takeall measures to ensure that no Information is disclosed or revealed to a third party. Anyfailure to comply with this obligation of confidentiality shall result in the application ofArticle 14 below.
13.3 This obligation of confidentiality shall remain in effect for a term of ten (10) yearsafter termination of the Order for any reason whatsoever. Once the Order is performed,the Supplier shall, at first request, return to SEMIKRON all documents related to theOrder, whether confidential or not, without keeping any copy unless SEMIKRON hasgranted its prior authorization in writing to do so.
14. Termination – Cancellation –
14.1. SEMIKRON shall have the right to terminate the Order by registered letterwith acknowledgment of receipt, without paying any compensation or penalty toSupplier,(a) before Supplier's confirmation of the Order, or five (5) business days from thedate of the Order or (b), without prejudice to SEMIKRON’s right to claim damagesand/or remedy, if any of the following events occurs: (i) Supplier fails to deliver theSupplies (including the performance of any services) within the date scheduled inthe Order, the Supplier being late by more than five (5) business days; (ii) Supplierfails to comply with warranty obligations; (iii) Supplier unreasonably refused Orderchanges as per Article 2.2 above; (iv) Supplier is in breach of any of its obligationsarising from these General Terms and Conditions of Purchase or from a contractbetween the Parties to which the Order is subject or related, and the breach is notcured within ten (10) business days from receipt of SEMIKRON’s written notice ofthe breach; (v) a proceeding under insolvency, bankruptcy or similar laws iscommenced against Supplier; or (vi) under the circumstances described underArticle 12 above.
- Changes significantly the structure of its technical or commercial organization,
- Refuses or is not able to fulfill one of its contract obligations.
- Operates a significative change in the distribution of its share capital,
- Does not meet the technical specification during the phase of mass productionlaunching,Only one modifications listed above is sufficient to cause the revision of thepresent contract.
14.2. Upon receipt of such termination, Supplier shall forthwith stop all work under thatOrder, place no further orders nor make any further commitments for materials orservices to complete the work and make any reasonable effort to minimize costs andlosses due to the termination.
15. Governing law - Jurisdiction – Severability
15.1. Any Order placed or any contract entered into by Supplier and SEMIKRON andshall be governed by and settled according to French Law. The provisions of the (UN)Vienna Convention on International Sales of Goods of April 11, 1980 are expresslyexcluded.
15.2. Any and all disputes arising out of the validity, the construction, or the enforcementof an Order or a contract entered into by Supplier and SEMIKRON shall be resolved bythe exclusive jurisdiction of the Courts or VERSAILLES (78 - FRANCE).
15.3. Verbal ancillary agreements are not effective unless confirmed by the Parties inwriting. If any terms or provisions of these General Terms and Conditions of Purchasewere to be invalid or unenforceable, such terms or provisions will be deemed reformedor deleted, as the case may be, but only to the extent necessary to comply with the newrule or law and the remaining provisions will remain in full force and effect.***