These general terms and conditions of sale (hereinafter referred to as the “T&Cs”) apply between the simplified joint-stock company Thomas Constructions Mécaniques (hereinafter referred to as “TCM”) registered in the Epinal Trade and Companies Register under number 306 650 565, whose registered office is located at 5 rue Jean Moulin 88120 in Vagney, and any professional customer (hereinafter the “Client”) within the meaning of the introductory article of the Consumer Code.
Set “Part”, “Parts”.
1. OBJECT
The general terms and conditions of sale described below details the rights and obligations of TCM and its Client in the context of the sale of services and/or special machines.
The contract is composed of the offer, the quote, these T&Cs and, where applicable, the special conditions included in the quotation and expressly accepted by the Client.
Any other documents, general terms and conditions of purchase, discussions taking place between the Parties are not enforceable against the relationship between the Parties.
2. SCOPE
These general terms and conditions are intended to apply in France and internationally.
TCM may revise its general terms and conditions of sale.
3. DEFINITIONS
The following terms are defined as follows and are capitalized in the remainder of the document.
“Contract”: the set comprising the offer, the quotation, these general terms and conditions of sale and, where applicable, the special conditions included by TCM in the quotation and accepted by the Client.
“Order”: refers to the order materialized by TCM and accepted by the Client through the signature of a quote sent by TCM to the Client.
“Quotation”: a document containing the payment and commercial terms and, where applicable, containing the specific conditions put in place with the Client.
“Technical documentation”: document sent when the special machine is handed over, including the instruction manual, with a description of the machine, as up to date as possible and, where applicable, an assembly manual.
“Offer”: commercial document describing the machine, including its performance characteristics, including elements of the instruction manual.
“Special Machine”: a set custom-made by TCM for the Client composed of parts or components linked together, at least one of which is movable, and which are joined together in a defined manner for a specific application.
4. ACCEPTANCE OF THE OFFER
4.1. Conclusion of the Order
The Offer is deemed to have been accepted by the Client upon express acceptance of the Order.
TCM sends an acknowledgement of receipt of the Order.
4.2. Modification of the Order
After acceptance of the Order, the Client may not modify the content of the subscribed Order unless TCM expressly accepts the request to modify it and confirms it in writing.
4.3. Annulation of the Order
No annulation of an Order will be accepted by TCM. However, if after discussions TCM agrees to cancel an Order, TCM will charge cancellation costs in an amount representing 20% of the total Order or is equal to the actual cost already incurred for the Machine purchased and/or the services started.
5. DESCRIPTION OF SERVICES
The services developed by TCM are as follows:
- Special machine: study and creation of tailor-made industrial machines
- Technical upgrading of existing industrial plants (retrofit)
- Retrofitting existing industrial plants into compliance
- On-site industrial maintenance: in particular, if relevant, through a network of supplier partners.
The descriptions and technical conditions of these services are developed in the Offer.
6. TERMS AND CONDITIONS OF PERFORMANCE OF SERVICES
6.1. Execution schedule
As part of the performance of the services described in the Offer and presented in the previous article, where applicable, an indicative execution schedule will be included in the quote.
6.2. Pre-validation
For any technical study and design of 3D plans, a proof of concept including the technical solutions proposed by TCM is to be carried out by the Client. This validation is to be carried out by the Client through the signature of the relevant documents within 5 days of the presentation of the concept. Otherwise, production of the Special Machine will be postponed accordingly.
6.3. Delivery
Unless otherwise provided for in the quotation, the Machines are delivered with the Incoterm FCA 2020. Unloading is not included in TCM’s service.
TCM may use subcontractors to deliver the Machines. TCM cannot be held responsible for a delay in delivery due to a carrier.
6.4. Packaging
The Machines are packed by TCM, the cost of the packaging may be extra, in accordance with the specific conditions set out in the quote.
6.5. On-site installation
As provided for in the Offer, the Machines are installed at the Customer’s site.
As soon as an on-site installation is provided for in the Offer, TCM undertakes to ensure that these on-site hours take place from 8 h to 12 h and from 13 h to 16 h for a maximum of 7 hours/day and 35 hours/week of hours worked.
In accordance with Article 13, the Client undertakes to carry out all the formalities necessary for the arrival on site of the personnel seconded by TCM.
7. PRICES
Prices are established in euros (€), excluding taxes (excl. VAT) and net of any discount with the details of the hourly rate in the event of an on-site intervention. Any tax, levy or duty to be paid under the laws of France or those of a country of transit or destination shall be borne by the Client.
8. ADDITIONAL COSTS
Travel, meals and accommodation expenses are invoiced in addition to receipt.
Any additional hour of intervention on site, i.e. beyond 7 hours/day, is increased by 25%.
Mileage travel costs are charged: €0.70/km travelled and per vehicle.
The flat-rate meal costs are charged: €25/meal per person.
Accommodation costs are invoiced: actual costs invoiced on receipt, unless special conditions are specified in the quote.
A flat-rate overnight stay of €70/night/person is charged in addition when TCM staff are required to stay on site.
9. PAYMENT TERMS
Invoices are payable by bank transfer to the bank details indicated in the invoice within thirty (30) days of the invoice being issued. Unless otherwise stipulated in the quotation, a deposit corresponding to 40% of the total amount excluding VAT must be paid by the Client on the day the Order is concluded.
The quotation has been drawn up considering the details of the obligations of the Parties the Incoterm mentioned in Article 9 of the T&Cs.
In the event of late payment, TCM shall charge the Client a late payment indemnity equal to three times the legal interest rate. This penalty is calculated on the amount excluding tax of the remaining amount due and runs from the due date of the invoice without any prior formal notice being necessary. In addition to the late payment penalties, any sum, including the advance payment, not paid on its due date will automatically result in the payment of a lump sum compensation of forty (40) euros due in respect of recovery costs pursuant to Articles L.441-10 and D.441-5 of the French Commercial Code.
10. INVOICING
Depending on the project, one or more invoices are issued by TCM.
In the event of multiple invoices, non-payment of an invoice makes payment of all sums due.
11. GUARANTEES
11.1. Legal warranty
Special Machines benefits from the warranty against latent defects provided for in articles 1641 to 1649 of the Civil Code. This warranty does not apply if the Machines and/or the installation have been modified by the Customer and if the Machine has not been used in accordance with the user manual.
11.2. Contractual guarantee
In addition, TCM grants a contractual warranty of one (1) year from the date of acceptance of the Machines.
11.2.1 Description of the contractual guarantee
This warranty applies from the date of receipt of the Machine concerned, the date of the installation slip being valid for a period of one year.
It applies to the parts and the installation of the Machine. Travel and accommodation costs are not included in this guarantee and are invoiced to the Client in addition, see Article 8 of the T&Cs.
11.2.2. Procedures for implementing the contractual guarantee
If the Client wishes to benefit from the contractual warranty, he must contact TCM’s customer service at the address: contact@thomas-mecanique.com .
11.2.3 Exclusions of Warranties
The warranty does not apply if the Machine has not been used in accordance with the installation instructions as provided in the technical documentation, if the Machine has been modified or redesigned.
12. CLIENT’S OBLIGATIONS
At TCM’s request, the Client undertakes to provide the plans, measurements and samples necessary for TCM’s design work. Depending on what is agreed in the offer, the Client undertakes to provide TCM’s service providers with equipment in good condition and safe to allow the service providers to install the Machines in suitable conditions.
12.1. Upstream of the installation
Before any on-site intervention by TCM, the Client undertakes to ensure that the installation site is ready (non-exhaustive indicative list: floor, wall, electrical system, piping system, compressed air, electrical and hydraulic connection). The Client undertakes to cover the floors before any TCM intervention.
The Client undertakes to ensure that the room in which the Machine is installed is connected to a source of energy (electricity, gas, compressed air, others) necessary for the activation of the Machine.
In accordance with the Incoterm FCA, the Customer is obliged to unload the material up to the installation place of the Machine.
12.2. Downstream of the installation
The Client undertakes to make the necessary adjustments for the activation of the Machine and for the purpose for which the Machine was purchased. Any sealing or finishing work is the responsibility of the Customer.
13. RESPONSIBILITY
13.1. Obligation of means
It is agreed between the Parties that TCM is subject to an obligation of means.
13.2. Exclusion of liability
TCM’s liability is strictly limited to the obligations set out in these T&Cs. It is expressly agreed between the parties that TCM is not liable to the Client for any damage suffered such as accidents to persons, damage to property other than the object of the contract, loss of profit, loss of production.
13.3. Limitation of liability clause
The Parties acknowledge that if TCM were to be held liable, the damages payable by TCM could not exceed 15% of the value of the Order excluding VAT.
14. RISK TRANSFER
In accordance with the Incoterm provided for in Article 9 of the T&Cs, the transfer of risk between TCM and the Client takes place during transport to the agreed place of destination indicated in the quote or in any other relevant documents.
15. RETENTION OF TITLE CLAUSE
The transfer of ownership only takes place after full payment of the sums due by the Client.
In the event that payment is not made within the time limits set by the Parties, TCM reserves the right to take back the item delivered or assembled. It is specified that, upon delivery of the Machines, the Client will bear the risks of loss, theft or deterioration.
16. PERSONAL DATA
The Client is informed that as part of the contract, TCM is required to collect personal data (e.g. surname, first name). As a data controller, TCM collects data for a period of 10 years in accordance with legal obligations and the contract. At the end of this period, the data is deleted. The Client is informed of their right to access, modify, or request the deletion of data concerning them by sending an email to: contact@thomas-mecanique.com . He can also send a complaint to the CNIL (https://www.cnil.fr/).
17. INTELLECTUAL PROPERTY
All studies, preparatory design works written by TCM are the exclusive property of TCM and are protected by copyright and international conventions on the subject.
As part of the support for the drafting of specifications, the ownership of the specifications is assigned to TCM and the cost relating to the transfer of copyright is, where appropriate, provided for in the quote.
18. FORCE MAJEURE
TCM cannot be held liable if the non-performance or delay in the performance of any of its obligations, as described herein, results from a case of force majeure, within the meaning of Article 1218 of the French Civil Code, and those usually recognized by French jurisprudence.
19. INSURANCE
TCM has taken out professional civil insurance. At the Client’s request, TCM may send a certificate of insurance to the Client.
20. NON-SOLICITATION OF PERSONNEL CLAUSE
The Client undertakes not to hire, attempt to hire or have employed, directly or indirectly, an employee of TCM during the performance of this contract and until two (2) years thereafter.
In the event of non-compliance with this clause, the Client must pay TCM an amount at least equal to twice the amount of the employee’s gross annual salary.
21. AMICABLE RESOLUTION METHOD
In the event of a dispute, the Parties will try to reach an amicable agreement materialized by a written agreement signed between the Parties.
In the absence of an amicable solution, the Parties will resort to an amicable dispute resolution method, mediation or conciliation.
22. GOVERNING LAW
Any dispute relating to the formation, interpretation, performance, termination or any other terms of the T&Cs is subject to French law.
The relationship between the Parties is subject to French law.
23. TRANSLATION
If any translation of the T&Cs is made, the French version shall prevail.
24. COMPETENT COURT
The Parties elect the court within the jurisdiction of TCM’s registered office as the competent court, i.e. the court of Epinal.
