These general terms and conditions of sale (referred to hereinafter as the « GTC » or the « Contract ») apply to all orders placed by a Client (the « Client ») with any company within the ELVIA PCB Group, whose registered office is located at: Avenue d’Ochsenfurt, 50200 COUTANCES, France (referred to hereinafter as « ELVIA PCB » or « the Manufacturer »). Under these GTC, the Manufacturer manufactures or distributes the Products ordered by the Client in accordance with the specifications provided by the Client within a bill of specifications. Consequently, the Client remains the party who designs the Product(s) ordered. In this operation, the work performed by the Manufacturer is preponderant compared to the supply of raw materials.
Under the laws in force, the Manufacturer’s GTC apply to any order placed with the Manufacturer involving the sale of Products and/or the Supply of Services. They can be adapted, in the context of the special terms and conditions, when the specific characteristics of the service so warrant. Any order placed with the Manufacturer implies the Client’s acceptance of these GTC and its waiver of its own terms of purchase. Any other clauses or conditions shall only be invoked if they have been accepted in writing, by ELVIA PCB.
Companies in the ELVIA PCB Group: any commercial company, economic interest group as defined in Book II of the Commercial Code, any non-commercial company, association, joint venture, consortium, and more generally any French or foreign legal entity in which at least 10% of the capital and voting rights is owned directly or indirectly by ELVIA PCB.
The following are companies in the ELVIA PCB Group:
- ELVIA PCB SAS, registered under n°389 502 253 in the Coutances Trade and Companies Register, located at: avenue d’Ochsenfurt – in 50211 COUTANCES CEDEX,
- A&P-LITHOS, registered under n°582 142 451 in the Rennes Trade and Companies Register, located at 20 rue Joliot Curie – in 35220 CHATEAUBOURG,
- BREE, registered under n°329 816 623 in the Trade and Companies Register, located at 6 route de Briarres – POB 68 – in 45390 PUISEAUX,
- CIRETEC, registered under n°338 731 326 in the Orléans Trade and Companies Register, located in the Zone d’Activités – at 1 rue Jean Monnet – 45130 SAINT AY.
Products: Printed circuit boards ordered by the Client from ELVIA PCB, which are manufactured and/or distributed by ELVIA PCB, in accordance with the Client’s specifications within a bill of specifications.
Supply of Services: training services, expert appraisals, consulting or assistance services provided by ELVIA PCB.
Tools: All the material elements set forth in the Client’s definition file, enabling the manufacture of the Products ordered.
Acceptance: Instrument in which the Client accepts the Products (with or without expressing reserves).
3. PROPOSALS AND ORDERS
- The Client’s request for proposals or its order must be expressed in writing and be accompanied by a bill of specifications. The Manufacturer’s proposal will be considered as firm only if it is accompanied by a period of validity. In all cases in which the Client makes amendments in the bill of specifications or to the prototypes which may be submitted to it by the Manufacturer, the initial proposal becomes null and void, and a new proposal must be submitted. ELVIA PCB reserves the right to refuse any order.
- Even in the event of an estimate or preliminary proposal, the Contract shall be formed only if it is explicitly accepted by the Manufacturer. The Contract becomes final when the Manufacturer issues the acknowledgement of receipt of the order and no unilateral change or cancellation is then possible.
- For any order of Products in addition to those referred to in the acknowledgment of receipt of the order, the prices and deadlines will be discussed specifically between the Manufacturer and the Client.
- An open order, resulting in calls for periodical or regular deliveries, can be concluded only for limited duration agreed upon between the Manufacturer and the Client.
4. DEFINITION OF THE SPECIFICATIONS
The bill of specifications accompanies the Client’s order. It includes the plans for the production and manufacture of the Products; the drawings and the technical specifications necessary for manufacturing the Products ordered, including the rules for the design and supervision tailored to suit the specific characteristics of the Products based on the result expected by the Client.
The specifications provide the rules for designing the Product and for controlling the Product’s specific characteristics.
The Client is the designer of the Products and is the only party to have sufficiently precise knowledge of the industrial result it is seeking. Hence, the Client alone is responsible for drafting the bill of specifications and for respecting all the rules governing the drawing and design of the Products.
ELVIA PCB shall not be liable for any error, omission or imprecision in the bill of specifications provided by the Client, for delivery delays or a change which has not been validated by ELVIA PCB, and retains the right to refuse or to cancel any order in the event of the non-validation of the Client’s bill of specifications. ELVIA PCB does not guarantee the functioning or possibility of manufacturing a Product in the event of a non-validation of the Client’s bill of specifications.
Any error, omission or modification on the Client’s part after the order has been accepted by ELVIA PCB, inasmuch as it may have an effect on the price or on execution time, authorizes the Manufacturer to amend the execution and delivery terms initially proposed.
The Manufacturer shall not have any duty to verify of the information provided in the bill of specifications.
5. OBLIGATION TO INFORM AND ADVISE
Regarding the information provided by the Client and the state of the art and technology, the Manufacturer acknowledges having communicated to the Client the benefits and drawbacks of its technical choices.
The Client, for its part, acknowledges that it provided all the information necessary for the proper realization and smooth functioning of the printed circuit board: the Product’s implementation and the assembly of the wiring, the conditions of use and the end purpose.
A Client who wants the order to go through, despite the Manufacturer’s reservations, is the sole party responsible for the consequences and any possible damage.
6. CONFIDENTIALITY CLAUSE
Each party shall refrain from communicating to any third parties, for purposes other than the execution of its contractual obligations, without the other party’s prior written approval, the information exchanged with it from the outset of the negotiation phase. This obligation is binding upon the parties throughout the duration of the Contract execution , and for a period of three years following the termination or expiry of the Contract. Each party undertakes to impose the same confidentiality obligation upon its coworkers, its suppliers and possible subcontractors.
7. INTELLECTUAL PROPERTY
Under these GTC, the Intellectual Property Rights are defined as all rights pertaining to patents, inventions, designs and models, the semiconductor topography, the copyrights, database rights, trademarks, trade names, know-how and the technical information, whether they are or can be registered or not, as well as all requests for the registration of any one of these rights (« Intellectual Property Right »).
Unless specifically agreed, the Intellectual Property Rights protecting the data, information and documents, provided tto ELVIA PCB by the Client for manufacturing the Products which are the purpose of the order do not become the Manufacturer’s property. The Client states that it possesses all the Intellectual Property Rights to the data, information and documents provided, and guarantees to hold the Manufacturer harmless from all third-party action or claims.
The Manufacturer’s prior knowledge remains its property. It also retains all of the Intellectual Property Rights to its projects, studies and documents of any nature, which shall not be communicated or executed without its written authorization. In the event of written communications, they must be returned to it on request.
The sale of the Products or the Supply of the Services confer upon the Client none of ELVIA PCB’s Intellectual Property Rights to the Products, and the Client acknowledges explicitly that ELVIA PCB shall remain the owner of all of its Intellectual Property Rights to the Products, including all know-how utilized for filling the Clients order.
Subject to the respect of ELVIA PCB’s Intellectual Property Rights utilized in the design or manufacturing of the Products, of which ELVIA PCB shall remain the owner, the Client shall become the material owner of the Products purchased in the context of its order and ELVIA PCB grants to the Client a non-exclusive, worldwide right to use ELVIA PCB’s Intellectual Property Rights contained or incorporated in the Products, solely for the purposes of the resale or the Client’s use of the Products.
The Client acknowledges that over the course of its relations with ELVIA PCB, ELVIA PCB may develop, for its own account or for others, methods, analytical concepts, approaches, methodologies, models, tools, processes, discoveries, ideas, formats or information, including that utilized in or for the Products, and that no stipulation herein prevents ELVIA PCB from developing, utilizing or circulating said elements, on the condition that no element utilized, shared or circulated contain confidential information or any of the Clients Intellectual Property Rights.
The Client shall contribute to the cost of the Tools necessary for manufacturing the Products, however the Manufacturer shall remain the owner thereof.
The Client authorizes the Manufacturer, unless it prohibits it in writing, to exhibit certain items or Products it produces during all events, such as fairs, trade shows, exhibitions, and on its advertising and commercial documents.
Regarding the Supply of Services, the Client becomes the owner of the presentations, reports, charts, and other documents which may be provided to it by ELVIA PCB (the « Deliverables »). ELVIA PCB retains the Intellectual Property Rights to the Deliverables. Although ELVIA PCB cannot transfer to the Client its Intellectual Property Rights to the Deliverables, a non-exclusive license to use, reproduce and modify the Intellectual Property Rights to the Deliverables is granted to the Client hereunder, solely for its internal purposes and to the extent necessary for the resale or use of the Products, for a duration equal to the legal duration of the protection afforded under the rights granted, and for the entire world.
Unless otherwise provided in the acknowledgment of receipt of the order, delivery is considered as being « ex Works » according to the Ex Works Incoterm. The risks related to the Products (delivery, transport, storage) are transferred to the Client, either by means of the direct delivery of the Products to the Client or, in the event of delivery by transporter, by the delivery of the Products to the transporter. The Client shall bear the costs of transport, customs, as well as the risks up to the final destination.
In the event that the Client did not accept the goods delivered on the delivery date, all of the ensuing additional costs, and in particular the costs of storage and keeping the Products, will be incumbent upon the Client. In this event, an invoice is issued for holding the goods at disposal.
In all events, the Products are transported at the risk of the Client which shall be responsible for making all necessary reserves within the period granted and for exercising, as the case may be, all remedies against the transporters.
The services will be supplied within the period determined by the parties in the order. Unless otherwise stipulated in the acknowledgment of receipt of the order, delivery time will be provided for the sake of information only, and any failure to meet a delivery deadline shall not carry entitlement to indemnification, a fine or a review of the price in favor of the Client, nor shall it authorize it to cancel the order.
9. ACCEPTANCE OF THE PRODUCTS – COMPLAINTS – RETURNS
At the time of the receipt of the Products, the Client shall verify the suitability of the Product delivered for its own needs and the compliance of the Products with the technical specifications provided in the bill of specifications, by means of any inspection deemed useful and appropriate by the Client, carried out seven days following the delivery date under the Incoterm which applies between the parties.
In the event of non-compliance, the Client is entitled to seven days beginning on the date of the delivery of the Products delivered to make a complaint to ELVIA PCB, by registered mail with acknowledgement of receipt, sent to the address of its registered office. A complaint does not release the Client from its obligation to pay for the Products concerned. Failing a complaint within this deadline, the Products will be considered as compliant and as having been accepted unconditionally.
It is up to the Client to provide proof of the non-compliances, defects or anomalies noted and to enable ELVIA PCB to ascertain and remedy them. ELVIA PCB shall grant its prior written approval for all product returns, the costs and risks of which shall be incumbent upon the Client. No Products shall be returned without ELVIA PCB’s written approval, which approval implies no acknowledgment of liability in any capacity whatsoever.
Products must be returned in accordance with ELVIA PCB’s instructions, along with a return voucher to be affixed on the package, in the full original packaging and in perfect condition, by a transporter selected by the Client. The Products shall have sustained no damage or transformation, for any cause whatsoever.
Products on which a conformity defect has been noted and acknowledged by ELVIA PCB and/or which falls within a Contractual warranty, shall be replaced, repaired, or modified by ELVIA PCB at its choice, taking account of the technical contingencies.
The packaging shall comply with the Manufacturer’s standards, unless specified otherwise.
11. PAYMENT TERMS – INVOICING – INTEREST ON ARREARS
The prices of the Products and/or Services are mentioned in ELVIA PCB’s price proposals and in all acknowledgments of receipt of the order, and shall display the price in euros exclusive of tax and VAT (which shall be invoiced additionally, at the rate in force on the delivery date). The prices also do not include the cost of transport, export, costs, custom duty or tax (in the event of the delivery of Products outside French territory), which are chargeable to the Client. Unless otherwise stipulated in the acknowledgment of receipt of the order, invoices are payable by check or bank transfer 30 days following the end of the month beginning on the date of the issuing of invoices.
Invoices stipulate the date on which payment must be made as well as the percentages of the fines payable on the day following the payment date appearing on the invoice.
Payment is considered as made on the date on which the funds are placed at the Manufacturer’s disposal by the Client.
In the event of payment arrears, and without the necessity of prior formal notice, ELVIA PCB also reserves the right to automatically suspend or cancel all orders in progress without prejudice to any action for damages.
Failure to make one single payment at maturity entails the immediate payability of all the sums still owed by the Client to ELVIA PCB, regardless of the stipulated means of payment. Failing payment within the agreed deadline, the Client shall automatically owe to ELVIA PCB a fine for arrears calculated at three times the legal interest rate. In addition to these fines for arrears, a fixed compensation of 40 euros, will automatically be owed for collection costs in the event of payment arrears.
12. FINES FOR DELIVERY DELAYS
For each full week of delivery delay, beginning at the end of the first week, a fine of 0.5% of the amount of the Products ordered will be calculated. These fines will in all events be limited to 5% of the amount of the Products which are late, and shall be withheld.
In accordance with the provisions of law, these fines can be demanded only if the debt is certain, liquid and due, and if the Manufacturer is able to verify the reality of the corresponding grievance. They can therefore not be automatically deducted or offset by the Client.
13. OWNERSHIP RESERVE AND TRANSFER OF RISKS
ELVIA PCB reserves and retains ownership of the Products sold until the price thereof has been paid in full by the Client.
ELVIA PCB shall only be liable for non-conformity and/or defects or flaws specific to the Products delivered by ELVIA PCB, to the exclusion of all others.
Furthermore, ELVIA PCB shall not be held responsible for:
- any damage resulting from a lack or the inaccuracy of the information provided by the Client in the bill of specifications which may have reasonably misled ELVIA PCB in manufacturing the Products;
- the Client’s refusal to implement ELVIA PCB’s recommendations;
- a delay caused by the Client, entailing the impossibility of meeting the agreed deadline;
- and more generally speaking, any fault committed exclusively by the Client or one of the Client’s third-party providers.
The Manufacturer’s liability is limited to three times the amount of the Products called into question, paid by the Client. Furthermore, it is strictly limited, on the one hand, to the respect of the Client’s specifications provided in the bill of specifications, and, on the other, to the state of its art.
Within the limit of the aforementioned limit, the Manufacturer is required to repair the direct material damage sustained by the Client, due to faults chargeable to it.
The Manufacturer, and the Client mutually waive the right to claim immaterial and/or indirect damages, in particular such as : trading losses, loss of profit, commercial prejudice… In particular, ELVIA PCB will not owe any indemnity to the Client or to any third party for indirect damage or prejudice, whether it be commercial prejudice, a loss of profit, or any loss of earnings.
All the fines and indemnities provided under the Contract are lump-sum and liquidated damages, exclusive of any other sanction or indemnity.
In the case of a damaging event, the parties undertake to limit the consequences of such event to the extent possible.
- Defects under warranty
The Manufacturer undertakes to manufacture Products which comply with all the national and European laws and regulations in force.
The Manufacturer undertakes to remedy any flaw in the functioning caused by a defect in the manufacturing of the Products ordered by the Client from ELVIA PCB, within the limit of the following provisions.
The Manufacturer’s obligation does not apply for damages resulting from:
- normal wear,
- unsuitable assembly and/or welding conditions,
- damage to the Products due to negligence, faulty installation, supervision, or care or abnormal use, or use which does not comply with the Manufacturer’s recommendations,
- inadequate storage conditions,
- the design or elements imposed by the Client or information communicated by it.
More generally speaking, the ELVIA PCB’s warranty is excluded for all damage which may result from the use, the assembly, the setting up, the transformation, the modification of the Products by the Client with any equipment, product or system designed and/or put together by the Client, and/or any flaw, defect and/or malfunction resulting from defective manufacturing or material, equipment, labor revealed after the warranty period specified below, and/or all flaws and/or defects and/or malfunction caused or originating in the Product’s design, and/or the Client’s specification, and/or the bill of specifications, and/or dysfunctions, flaws, defects or failures caused by normal wear, negligence, an act performed by third-party, the combination or the use, within another product or system, faulty care and/or an intervention on the Product which has not been authorized by ELVIA PCB. ELVIA PCB’s warranty is also excluded in the cases of force majeure provided by law.
In all cases, the Manufacturer’s obligations under this warranty apply only in the event that the combined printed circuit card-cabling has displayed the necessary qualifications.
- Duration and commencement of the warranty
ELVIA PCB’s warranty applies solely to the flaws which have been discovered by the Client and notified to ELVIA PCB over a period of one year.
Unless specified in particular conditions, the warranty period is 12 months beginning on the date of the first use and at the latest 18 months following the date of availability.
Availability is considered as occurring when the Manufacturer informs the Client of the availability of the Products or when the Manufacturer has offered to deliver the Product to the Client and the Client has refused.
Availability may precede the delivery date stipulated in the Contract, unless otherwise agreed between the Manufacturer, and the Client.
Products which have been replaced or repaired are covered by the warranty for the duration remaining on the warranty beginning on the date of the acceptance of the replaced or repaired Product.
- The Client’s Obligations
In order to invoke the benefit of the provisions of the warranty, the Client shall:
- inform the Manufacturer as rapidly as possible, in writing, of the flaws it charges to the equipment and provide all evidence of the reality thereof
- facilitate the opportunity for the Manufacturer to observe and remedy these flaws,
- also refrain, unless explicitly agreed by the Manufacturer, from dismounting and mounting, repairing and modifying said equipment itself or by a third party.
Furthermore, the Client is responsible for all damage or prejudice sustained by ELVIA PCB originating directly in ELVIA PCB’s fulfillment (or that of its subcontractors) of the obligations incumbent upon it under the order, or the Client’s instructions, ELVIA PCBs execution of the Client’s specifications and/or the bill of specifications, the undermining of Intellectual Property Rights and shall hold ELVIA PCB harmless from any direct or indirect damage or prejudice on these counts, including the costs of expenditures, the recalling of Products or operating prejudices.
- Exercising the Warranty
It is up to the Manufacturer, once informed, to remedy the flaw with due diligence. The Manufacturer reserves the right to modify the defective Products, if needed.
Theoreticaly, the work performed under the warranty is performed in the Manufacturer’s workshop at its expense. All other services preceding or following the implementation of the warranty (setting up, dismounting, shipment, diagnosis, return…) are incumbent upon the Client.
16. SUPPLY OF SERVICES
All Client orders for the Supply of Services are preceded by a written estimate submitted by ELVIA PCB, specifying the perimeter for the Supply of Services, the duration of ELVIA PCB’s mission, the procedures for ELVIA PCB’s execution thereof, the financial terms surrounding the Supply of Services, the conditions for the performance of the Supply of Services provided.
The order becomes final when the Client has accepted the estimate and ELVIA PCB undertakes to provide the Supply of Services described in the estimate.
ELVIA PCB pledges to provide the services on the conditions defined by the parties, with all the possible care inherent in its profession. ELVIA is bound by an obligation of means for performing all of the services. The Supply of Services requires the active, regular collaboration of the Client, who so agrees.
ELVIA PCB reserves the right to subcontract the manufacturing and supply of all or a portion of the Products and the Supply of Services ordered by the Client, which the Client acknowledges and accepts.
18. MEDIATION CLAUSE
All disputes pertaining to the Contract may be subject, at any time, to this mediation procedure. For this purpose, the most diligent party notifies the other party by registered letter with acknowledgment of receipt and proposes the name of one or several mediators with the view of appointing, within five days, a single mediator accepted by both parties.
At the initiation of the mediation procedure, the parties sign a mediation agreement with the mediator governing the mediation procedure;
The parties agree at this time that:
- the duration of the mediation shall not exceed two months following the appointment of the mediator, unless otherwise agreed by the parties.
- all exchanges and documents occurring between the parties in the framework of the mediation are confidential, unless otherwise agreed jointly by the parties.
If the parties reach an agreement within the deadlines they have established, this agreement will be recorded in a settlement, signed by each of them, and the mediator and bearing a writ of execution. If the parties do not succeed in reaching an agreement on the choice of the mediator or the outcome of the mediation, the mediation will have failed and the most diligent party may bring the case before the competent court.
19. PERSONAL DATA
The Client is informed that the order implies access to, the collection and processing of personal data (the « Personal Data »). In this capacity, ELVIA PCB undertakes to comply with the provisions of law n° 78-17 of January 6, 1978, amended, known as the Data Protection Act, and (EU) Regulation 2016/679 of the European Parliament and Council of April 27, 2016 as of its entry into force. These data are collected for the purposes of commercial management. ELVIA PCB has the obligation, among others, of guaranteeing the respect of all the rights of the persons whose personal data are collected, and undertakes to modify or delete the personal data following in particular the exercise by a person concerned of its right to access, rectify or delete: this right may be exercised by sending a letter to this effect to the address of ELVIA PCBs registered offices.
In the event of a dispute concerning the enforceability, interpretation or execution of the GTC, the commercial court of COUTANCES will be the only competent jurisdiction.
21. GOVERNING LAW
This Contract is governed by French law.
22. LANGUAGE OF THE CONTRACT
The French version of the GTC shall prevail over any translation.