INTERNATIONAL SALE AGREEMENT “DUB PERFORMANCE”
1. “DUB PERFORMANCE”,
Private Limited Company registered in France under RCS Number 502 066 137, with VAT Id. FR77502066137, having its registered address ZAC des Sablons – 54670 Millery, represented by Frédéric DUBAN, as Managing Director, duly authorized for the present, hereinafter referred to as , “DUB PERFORMANCE”,
2. “the Buyer”,
Scope - The present sale agreement defines the commercial relations between “the Seller” and “the Buyer”
- Invoice x3
- Bill of lading
- Obligatory transport documents
- Sale agreement
General – The following clauses and general conditions govern products and services as specified the DUB PERFORMANCE tender or acknowledgement of receipt of order, unless special conditions are set out in the above documents which amend or complete the General Conditions. They also govern any further amendment or modification to the contract agreed by written acceptance.
Any other conditions that are not stated are deemed out of contract unless the seller expressly agreed to such conditions in writing.
Validity - The DUB PERFORMANCE tender is open for acceptance for the stated period after the date on the DUB PERFORMANCE quotation or, when no period is so stated, within 30 days after. Beyond this date, the seller shall be at liberty to extend or not the period and to amend the conditions.
Acceptance - The acceptance of the DUB PERFORMANCE tender means acknowledge of the specifications of products and conditions as specified therein. Any modification specified in the order can be rejected or accepted by issuing a new tender or acknowledgement of receipt of order. The acceptance of the DUB PERFORMANCE tender must be accompanied by sufficient information to enable us to proceed with the order forthwith, otherwise DUB PERFORMANCE shall be at liberty to amend the tender prices to cover any increase in cost which has taken place during the necessary period to obtain these information. When passed on through an agent or a commercial representative, the acceptance of the DUB PERFORMANCE tender or the submission of order must be addressed to the name of DUB PERFORMANCE and its acceptance is only deemed decisive after DUB PERFORMANCE agreement by acknowledgement of receipt of order.
When DUB PERFORMANCE acknowledgement of receipt for order states DUB PERFORMANCE acceptance of the purchaser’s special or general conditions, they do not exclude any disposition of the present General Conditions which would be not stated or incompletely stated therein.
Limits of contract - The DUB PERFORMANCE tender includes only studies, documents, products and services as are specified therein. The specification and definition for foundation or skid are under Purchaser’s responsibility.
Studies and documents - All descriptive information of design, weights and specifications contained in the DUB PERFORMANCE catalogues and illustrations are only approximate in order to present a general idea of DUB PERFORMANCE competencies and products. None of these are part of contract and they can be modified without advance notice. Descriptive information of designs, sizes, weights and specifications contained in DUB PERFORMANCE tender can be adjusted according to the information from Purchaser or technical evolution and certified outline drawings will be supplied after the acceptance of DUB PERFORMANCE tender. The manufacturing drawings are not supplied.
DUB PERFORMANCE shall retain the complete ownership of its studies and any projects, which shallnot be communicated or executed without DUB PERFORMANCE prior express permission in writing.
The fact that the purchaser shares design costs does not make them his property.
Purchaser’s general obligations - Purchaser shall provide on time all approvals, instructions, goods and in general all necessary information to enable DUB PERFORMANCE to proceed with the contract, which are not stated to be DUB PERFORMANCE responsibility.
He will obtain in due time any government authorizations and complete any necessary customs and import formalities.
He will assume his legal, contractual and payment obligations. Execution and tests - DUB PERFORMANCE shall have the right to subcontract all or part of the supplies, services and work specified in the order. DUB PERFORMANCE reserve the right to modify DUB PERFORMANCE products as required by the evolution of standards, manufacturing methods or legal acts and, if necessary, to submit an amendment to the Purchaser's contract.
DUB PERFORMANCE products are carefully inspected and controlled during work.
Products completely achieved at DUB PERFORMANCE works are submitted to standard tests before dispatch, within the limit of DUB PERFORMANCE test facilities. If tests other than those specified in the DUB PERFORMANCE tender or witness tests are required, these will be charged to the Purchaser.
In the event of any delay on the Purchaser's or his representative's behalf in attending such tests after having received 7 days’ advance notice, the tests will be performed in their absence and shall be deemed to have been made by them.
Tests for products which are unable to be tested in DUB PERFORMANCE factory are the Purchaser’s responsibility. Costs of those tests will be paid by the Purchaser. If the Purchaser has not acknowledged receipt of the equipment, then the equipment shall be deemed to be finally accepted by the Purchaser the day of the first utilization by the User but not later than one month after delivery.
Spare parts shall be supplied without any specific tests.
Performance - Purchaser assumes all responsibility that equipment stipulated by him is sufficient and suitable for his needs and the User’s legal and specific environment. Performance characteristics are subject to international standards and are verified by tests as specified and accepted in the contract. If performance characteristics obtained are outside acceptance limits, DUB PERFORMANCE are to be given by Purchaser reasonable time and opportunity to rectify the equipment performance, before its rejection. In case of rejection for products which are not able to be brought within the acceptance limits and in the case that no compromise can be met with the Purchaser, DUB PERFORMANCE shall reimburse the Purchaser all amounts already paid by him for the contract specified, and he will be without any possibility to claim penalties or liquidated damages. This reimbursement can take place only if the Purchaser justifies his rejection.
Delivery Time - The delivery time is considered contractual from the date of receipt by the seller of:
- The order from the Purchaser to begin execution of the contract which constitutes acceptance of the DUB PERFORMANCE tender’s clauses and present conditions or DUB PERFORMANCE acceptance for receipt of order including amendment for special conditions.
- the down payment specified for order confirmation
- all necessary information to enable us to proceed, which are under the purchaser’s responsability.
- DUB PERFORMANCE liabilities for contract will be suspended and legally extended:
- if one of the above-mentioned conditions is not carried out.
- if Purchaser does not respect its liabilities or date for payment.
- in the event of Force majeure or circumstances as labor conflicts, natural disasters, epidemic, war, requisition, fire, shortage, riots, transportation incidents or any other event out of DUB PERFORMANCE control or the control of DUB PERFORMANCE subcontractors. Purchaser shall be informed of such events.
- in the event of variation or suspension of the work by purchaser’s instructions or lack of instructions, the delivery date shall be extended accordingly.
- if delay for dispatch or delivery is caused by Purchaser, its appointed forwarding agent or caused by administrative and custom’s procedures, as soon as goods were deemed ready for dispatch.
DUB PERFORMANCE delivery dates are based on readiness for shipment in DUB PERFORMANCE factory, not packed. A failure to dispatch or deliver gives no motive for cancellation of contract.
Delivery - A partial delivery is allowed.
DUB PERFORMANCE liabilities for transportation are according to the rules EX Works set forth in the Incoterms 2013 of the CCI in Paris.
Liquidated damages for delay in delivery can only be applied as following:
- if reasons for delay in delivery are exclusively from DUB PERFORMANCE, excluding causes enumerated in the clause «Delivery Time» and Additional services provided on Purchaser’s request or provided in his name.
- if the Purchaser has suffered a real loss and it has been verified by DUB PERFORMANCE and if the Purchaser has paid penalties due to a late delivery by DUB PERFORMANCE.
- if a special clause which specific conditions has been accepted by the seller. The risk transfer, insurance and delivery costs shall be per Incoterms 2013.
Purchaser shall insure storage and commissioning for the equipment. He must inspect goods upon delivery and make any reserves and claims against carriers. If DUB PERFORMANCE provide carriage on Purchaser’s request, it will not amend contractual liabilities, except by a written acceptance from seller.
Within 14 days after notification that goods are available for dispatch from DUB PERFORMANCE works and without any effective delivery, DUB PERFORMANCE shall be entitled to arrange storage either at DUB PERFORMANCE works or elsewhere on Purchaser’s behalf and all charges for shall be payable by him. Purchaser will remain liable and be in charge of insurance for goods. In such event, delivery of goods by DUB PERFORMANCE will be deemed to be effective and payment shall become due upon presentation of a certificate of storage in place of bill of lading or any other contractual documents.
Invoicing and payment - The tender and the acceptance of receipt for order fix the terms of contract and payment conditions. The invoice indicates the date at which the payment is due at DUB PERFORMANCE address or on DUB PERFORMANCE account by bank transfer, by check, via Paypal or Credit Card before the expedition of the goods.
Payment in full cannot be differed or limited by penalties.
The amount of contract, excluding duties and taxes, is completed by the following dispositions:
- For sales in France: the amount of VAT at the current rate on the date of invoice or any other similar tax will be added to the contract price and paid by Purchaser.
- In case of late payment of the invoice, a compensation for delay shall be applied, by using an interest rate of one and a half time the legal interest rate published at the due date, without modifying the option for claiming the debt.
- For delivery to a country within European Union (E.U): if Purchaser is registered in that country for VAT purpose and so long as the laws in force in DUB PERFORMANCE country at the date of the supply so provide, VAT will not be charged if Purchaser provides satisfactory proof of export within 30 days thereof and furnishes at the time of the order its current VAT registration number. If such conditions are not met, the amount of VAT, by using the current rate in France on the date of invoicing, shall be added to the contract price and paid by Purchaser.
- For delivery to countries outside the European Union (E.U).: The amount of export, VAT or similar sales taxes or duties chargeable on the supply shall be added to the contract price and paid by Purchaser. Therefore, so long as the laws in force in DUB PERFORMANCE country at the date of the supply so provide, VAT will not be charged if satisfactory proof is provided within 30 days thereof.
No discount shall be agreed in case of advanced payment.
Any penalty for delays or recovery due to fiscal or custom authorities from country of delivery is charged to the Purchaser.
By accepting sales in France, the interest for delay in payment is fixed at a rate of 1% per month.
Law and arbitration - The Sales contract is governed by and interpreted according to French law. If no joint settlement can solve the disputes, they shall be finally settled by the Court of Commerce in Nancy, France. The contractual language is French or English.
Prior any judicial procedure, the parties expressly commit to do their best efforts to find an amicable solution by mediation through SIMAE Mediation Center in Nancy or Paris.
Transfer of title - For delivery in France, title of goods shall not be transferred to Purchaser until the price therefore is paid in full. However, all associated liabilities for risks shall be borne by purchaser immediately upon delivery. Purchaser shall furnish evidence upon request that it has provided all insurance required for coverage of said risks.
For exportation sales with an Incoterm specified on the contract, title of goods and associated risks shall be transferred to Purchaser at the same time as the transfer of risk according to the rules stipulated in the Incoterms 2013 of the CCI of Paris, at the point of transfer stated in the contract.
Until the transfer of title of goods to the Purchaser, the following dispositions shall be applied:
- Purchaser shall consider holder of the goods for DUB PERFORMANCE and shall clearly identify them as belonging to DUB PERFORMANCE.
- The purchaser must provide insurance coverage for all risks at his own cost and provide proof of this coverage.
- Purchaser may only use the equipment according to DUB PERFORMANCE instructions, may not modify, resell, or otherwise remove, dispose or grant to a third party any rights to the goods and shall maintain them in good condition and allow Seller unrestricted access to them for the purposes of inspection, protection or removal.
- Should Purchaser fail to comply with any obligations presented in these clauses, DUB PERFORMANCE shall have the right to demand the return of the goods. Should purchaser not respect this requirement within 8 days, DUB PERFORMANCE shall proceed, without prejudice to its other rights and means, to repossess the goods and remove, use or dispose of them, and for this purpose, to have access to where the goods are stored and to separate them from any other property to which they may be attached without liability for any resulting damage.
Warranties - DUB PERFORMANCE goods are under warranty for design, materials and manufacturing deficiencies or non-conformities with the agreed specifications which appear within a period of twelve (12) months after the goods are ready of dispatch in the DUB PERFORMANCE factory.
DUB PERFORMANCE shall not be required, under warranty obligations, to pay any claim for liquidated damages, compensations or to bear expenses other than those stipulated in this clause.
Deficiencies attributable to material provided by Purchaser or design imposed by him and repair services are out of DUB PERFORMANCE warranty obligations.
Warranty is restricted to the replacement of defective parts, with ownership transfer, or to the repair in DUB PERFORMANCE works for goods damaged by defects or deficiencies. If necessary DUB PERFORMANCE shall have the right to modify the equipment specified in the contract to fulfil warranty obligations. Returned parts to DUB PERFORMANCE works and repaired parts will be delivered, all charges at the Purchaser's expense, with previous acceptance by DUB PERFORMANCE for dispatching. Purchaser is charged for transport, dismantling and re-installation costs.
Repair services and replacements pursuant to the warranty period will not extend the warranty period and provide no complementary obligations.
The warranty is valid only when the Purchaser immediately notifies the Seller of any deficiency, communicates by writing any available information relating to the observed deficiency and gives reasonable possibilities to examine it. The warranty obligations are immediately and decisively interrupted if goods delivered have been modified or repaired without DUB PERFORMANCE writtenacceptance. If a deficiency appears to be out of DUB PERFORMANCE responsibility, Purchaser will be charged for all costs incurred.
DUB PERFORMANCE shall not be required to fulfil any warranty obligation if Purchaser or his subcontractors do not comply in respect with the rules of arts or supplied instructions for installation, commissioning, operation, protection or maintenance of equipment. DUB PERFORMANCE warranty will not apply to consequences of normal wear, deterioration caused by accident or negligence, neither to deficiencies included in drawings and documents nor to equipment and services which are not part of the contract specifications.
Cancellation - A contract cancellation can be decided, within a period of 15 days advanced notice, in the following cases:
- a suspension during the execution of contract, by or on purchaser’s request, during a period more than 4 months.
- if a clause specified in conditions therein is not completed.
- if Purchaser becomes under control of administrative or judicial procedure. In case of
cancellation, Purchaser shall pay the seller:
- the outstanding balance of the contract value of the goods delivered or ready to be delivered,
- all costs incurred by DUB PERFORMANCE up to the date of cancellation notice or during
suspension for goods which are not then in a deliverable state, including an additional margin of 15% except goods rejected as mentioned in « Performance »
Liquidated Damages - If DUB PERFORMANCE does not meet the delivery dates or order execution dates which DUB PERFORMANCE has contractually agreed to, and if, due to this single event, the Purchaser cannot carry out the commissioning at the planned date, DUB PERFORMANCE will pay the Purchaser penalties for late delivery, excluding any other recourse or remedies which would otherwise be available to the Purchaser under any applicable laws, at a rate of 0.5% per week of the contractual amount of the supplies and services. The total of all penalties cannot exceed 5 % of contract price, unless stipulated differently in the contract.
However, these penalties are not applicable for late delivery due to acts or omissions by the Purchaser or due to any of the events mentioned in the clause “Force Majeure”.
The total liability of DUB PERFORMANCE in case of late delivery or non-compliance with the guaranteed performance of the equipment will in no case exceed 10% of the contract price and the penalties paid as stipulated above will indemnify the purchaser of all damages that he may have suffered due to late delivery or insufficient performance of the equipment and exclude any other recourse or remedies which would otherwise be available to the Purchaser under any applicable laws.
Intellectual Property Rights - DUB PERFORMANCE is and will remain owner of all drawings and other technical information concerning DUB PERFORMANCE supplies and services including the software and programs supplied by DUB PERFORMANCE under the contract as well as the intellectual property rights which arise or were acquired by DUB PERFORMANCE before or during preparation of the offer or during execution of the contract.
Confidentiality - All technical information transmitted to the Purchaser will be held confidential by the Purchaser, his employees, representatives, agents, subcontractors who will not copy this information, modify it or divulgate it and who agree to use this information only for operation and maintenance purposes. If the Purchaser does not accept the offer made to him, the Purchaser must send the complete technical documents of the offer and all copies made of these documents to DUB PERFORMANCE.
Liability - With the exception of the above penalty clauses, DUB PERFORMANCE cannot in any circumstance be held liable for special, consequential or indirect damages, including but not limited to loss of contract(s), loss of profits, loss (es) of production, loss of use, increase of operation costs, economical of financial losses, etc..
Total liability of DUB PERFORMANCE, all causes and all damages included, cannot exceed the amount of 50% of the contract price.
Force Majeure - If the execution of a contractual obligation (except the purchasers obligation to pay DUB PERFORMANCE) is prevented, hindered or delayed by any natural catastrophe such as war, hostilities, work conflicts (whether at one or the other of the parties facilities or elsewhere), shortage or late delivery of raw material or components, fire, explosion, accident, breakdown of machines or essential equipment or by any other cause (similar or not) and where the contractual execution of the concerned part cannot be achieved with reasonable means, that part will be exempt of any responsibility due to the delay or hindrance or restriction as detailed above and the delivery will be extended accordingly.
If the execution is delayed for more than six (6) months for any of the reasons stipulated above and if the parties have not agreed on a basis of continuation of the execution of the contract at the end of that period and once that period has ended and provided that the cause for not executing the contract no longer exists, each party can terminate the contract with an advance notice of not less than thirty (30) days and in compliance with the above clause “Cancellation”.