1. APPLICATION OF THE GENERAL CONDITIONS OF SALE – VALIDITY
These GCS govern all sales operations and in particular all contracts agreed between Rotax SAS (hereinafter “Rotax”) in its capacity as vendor and the purchaser (hereinafter “the Client”). They describe the rights and obligations of the Parties. The placing of any Order shall imply the Client knowing the GCS attached to the estimate submitted to it and the acceptance by the latter of the GCS. The Client waives its own general and special conditions of purchase. These GCS are therefore legally binding on the Parties and, without their acceptance by the Client, Rotax would not have entered into the contract. Any contrary condition objected to by the Client shall therefore be non- binding for Rotax, irrespective of the moment when it is brought to their knowledge, unless as expressly accepted in writing by Rotax.
These GCS may be accompanied by special conditions which may depart from these provisions and upon which the Parties have agreed.
In the event of Rotax not implementing, at any given moment, one of these GCS, this cannot be interpreted as constituting a waiver of its right to subsequently implement the provision concerned.
2. ESTIMATES – ORDERS – FORMATION OF THE CONTRACT – INTERVENTION OF A CONTROL OFFICE OR BODY
a. Rotax reserves the right to, at any time, make all modifications which it deems useful to its Products and services without first having to inform the Client. If, due to any modification by the Client of the Order’s fulfilment, the Product(s) need to be modified in order to meet the Client’s requirements, Rotax shall first inform the Client of the modifications which need to be made to the Product(s) so that they meet the Client’s expectations.
Rotax reserves the right to modify the designs and models defined in its prospectuses and catalogues without first having to notify its clients.
b. All Orders from the Client shall follow the submission of an estimate issued by Rotax stating (i) the price of the Product(s), (ii) the price of transportation where applicable, (iii) the Eligibility Conditions, and (iv)the price of any additional services to be provided by Rotax including the price for Product installation and/or positioning.
The acceptance of the estimate by addition of the Client’s signature to it constitutes the placing of an Order (hereinafter the “Order”) with Rotax.
Orders shall become legally binding and constitute a sale commitment only upon the issue of a written acknowledgement of receipt (hereinafter the “Acknowledgement of Receipt of the Order”) by Rotax, which sets out the agreement of the Parties on the sale conditions and thus forms the contract (hereinafter the “Contract”) between them.
The Client shall be solely responsible for its final choice of Products.
c. Modification/Cancellation of an Order
- Any modification or cancellation of an Order which is requested by the Client shall become valid only after its written transmission and its explicit written acceptance by Rotax.
Any modification of an Order may result in a change to the price and/or to the deadlines (manufacture, delivery/shipping, installation and any other deadline linked to the Product to which the Order relates), which the Client must accept in writing.
If Rotax does not accept the modification or the cancellation requested by the Client, irrespective of the date, deposits paid shall be non-refundable and be retained by Rotax as compensation.
- In the event of full or partial cancellation by the Client of its Order, Rotax reserve the right to seek compensation for the TOTAL amount of the Order where it concerns a Product specifically manufactured according to the requirements and sizes of the In other cases, the deposit paid shall be retained by Rotax by way of compensation, whether the cancellation by the Client is partial or total and irrespective of its date.
d. Any intervention by a control office or body of the Client with the aim of approving the design of the Products shall be expressly agreed in writing. Such approval must take place within the deadlines defined in Rotax’s special conditions as stipulated in the estimate, Order or Contract. Rotax shall not launch the manufacture of any Products without the prior written approval of the Client’s control office or body.
e. Any delay in the approval of the design by the Client’s control office or body may result in the deadlines indicated in the estimate, Order or Contract being missed. Any such delay resulting from late approval of the design by the Client’s control office or body can in no way be attributed to Rotax and shall not entitle the Client to claim any compensation.
f. If the delay in question results in any damage for Rotax, the Client may be required to indemnify Rotax for said damage.
a. Deadline – The delivery deadline is indicated in the Order’s acknowledgement of receipt.
Any non-observance by the Client of (i) the payment of the deposit by the due date, (ii) the provision of evidence of the issue of the technical visas as a prerequisite of any production launch, (iii) the lifting by the Client of any administrative clauses, or (iv) the prior conditions required to be in place for the intervention of Rotax’s teams may give rise to a modification of the delivery deadline by Rotax. Such a modification may also be caused by any other shortcoming or failure on the part of the Client.
In any event, delivery within the deadlines is possible only if the Client is up to date with ALL of its obligations vis-à-vis Rotax, most notably its financial obligations (full and effective payment of the deposit amount), irrespective of the Client’s reason for any delays.
The modification of the delivery deadline shall not call into question the other conditions stipulated in the Contract. The delivery deadline thus modified due to shortcomings of the Client shall take place without the latter being entitled to make any claim for damages whatsoever against Rotax.
b. Risks – In all cases of damage or missing elements, it is the Client’s responsibility to make all observations necessary and to confirm its reservations on the delivery note provided by the transport
c. Receipt – Without prejudice to any arrangements to be taken vis-à-vis the transport operator, complaints regarding visible defects or the non-conformity of a delivered Product should be expressed in writing and transmitted to Rotax within 8 (eight) working days from the arrival of the Products.
The Client should accompany its comments with any proof which they consider necessary for the establishment of the reality of the defects or non- conformities observed. The Client should facilitate the inspection by Rotax of these defects and permit their rectification, where applicable. Given the technical nature of the Products, the Client shall refrain from taking corrective action itself in this regard or from calling in any third party for this purpose. If, despite this strict and firm ban on interfering with Rotax Products, the Client decides to do otherwise, such action shall result in the automatic invalidation of all warranties and liability covering the Rotax Product(s) which have been interfered with by any person who has not been authorised by Rotax. No claim shall be possible against Rotax in relation to Products which have been interfered with by an unauthorised third party. The client alone shall be responsible.
4. ELIGIBILITY CONDITIONS: PRE-REQUISITE CONDITIONS NECESSARY FOR INSTALLATION TO BE VERIFIED BY THE CLIENT
When eligibility conditions are specified concerning the installation site, they are critical for the acceptance and sizing of the Products. They shall be attached to any estimate issued by Rotax, which reserves the right not to accept the Order if the Eligibility Conditions are not met (boxes to be ticked on the sales estimate by the Client). Depending on the details transmitted by the Client and in particular concerning the site Eligibility Conditions, Rotax remains free to accept or reject the Client’s Order. Rotax shall not be held liable for any damage linked to inaccuracies in the information transmitted by the Client or for the impact of any such inaccuracies upon the choice of Products, their environment or their deployment.
5. TESTS AND SURVEYS
a. All surveys (including ground surveys) and all tests (including traction testing) on site are the responsibility of the Client. Any error, omission or deficiency in the information transmitted by the Client may generate additional work at the exclusive cost, responsibility and risk of the Client.
Quality of fixing supports – The survey and the verification of the supports upon which the equipment shall be fixed are the responsibility of the Client and in particular the characteristics of the ground, the quality of the existing concrete, the integrity of existing steel structures, etc. This list is neither exhaustive nor limitative. It goes without saying that the characteristics and qualities of the supports are specific to each site, hence the importance for the Client of correctly examining them before responding to the Eligibility Conditions. This survey and evaluation of the quality of the supports remains the sole responsibility of the Client, who is the sole party with knowledge of the characteristics and qualities of its materials to be used to support the installation of Rotax’s equipment.
Consequently, Rotax cannot be held responsible for either the failure of any of these supports or for damage which might result from said failure.
b. It is the responsibility of the Client to carry out all surveys or assessments required in order to guarantee the final resistance. Rotax may be instructed to carry out such surveys, in which case all surveys and/or assessments carried out by Rotax shall be the subject of an estimate and a specific Order.
Within the framework of its role of conducting tests and surveys, Rotax shall be bound solely by an obligation of resources. Consequently, Rotax cannot be bound by the slightest obligation of results in relation to any tests or surveys which it carries out.
6. ADMINISTRATIVE FORMALITIES – PERMITS – PLANNING
The Client is responsible for obtaining all administrative authorisation required for the proper installation of the Product. They are duly required to provide evidence of this to Rotax within FIFTEEN (15) working days before the planned date of the installation in the form of a duplicate or a true copy of the permit/s concerned, in such a way that the responsibility of Rotax can never be invoked for any consequence whatsoever of the possible absence or incomplete nature of said permits. Any delay or damage, including financial, resulting from the absence or late issue of said permits shall be the responsibility of the Client.
The estimate is produced for the price of the supply of the Products and/or the provision of the services “exclusive of tax” and then including all tax. The invoice presented to the Client shall indicate the amounts of the taxes applicable on the date of invoicing.
The prices indicated in the estimate are valid only for a maximum and limited period of 1 (ONE) month commencing from the estimate’s issue date. The prices indicated in the estimate are valid solely for the Client in whose name the estimate has been produced and issued.
Unless otherwise stipulated in the special conditions, all Orders are subject to the payment by bank transfer using the bank details supplied to the Client upon acceptance of the Order of a minimum deposit of 50% excluding tax, payable and invoiced for upon the Acknowledgement of Receipt of the Order. Payment of the deposit is an essential prerequisite to any production launch and/or any other intervention by Rotax. Any delay in paying the deposit may lead to a delay in meeting the deadlines detailed in the Contract and costs and charges resulting from said delays payable by the Client alone.
The balance is invoiced for before the delivery of the Products.
Unless otherwise stipulated, no discount shall be granted in the case of early payment.
The payment term is THIRTY (30) days from the issue of the invoice. Outside French metropolitan territory, Orders of Products are payable upon receipt of a pro- forma invoice, at least 7 (SEVEN) working days before the agreed shipping date; the definitive invoice shall be issued on the day of shipping.
The due dates stipulated in our invoices are strict and firm.
In the event of any payment date being missed, penalties equal to the half-yearly reference rate (Refi rate) of the European Central Bank (ECB), applicable as from 1st January or 1st July depending on the Order date, increased by 10%, are applicable. Those penalties shall be applied from the day following the payment date indicated on the invoice. Furthermore, the Client shall be required to pay flat-rate compensation for recovery costs of 40 (FORTY) euros.
In the event of late payment, Rotax reserves the right to suspend or cancel any outstanding Orders and/or Contracts at the risk and cost of the Client, without prejudice to any of statutory rights and remedies available to Rotax.
Any late payment shall, automatically and without prior formal notice, generate the application of flat- rate compensation of 15% of the sums remaining due to Rotax.
Under no circumstances may payment owed to Rotax be the subject of any deduction or offsetting without the written agreement of the latter.
9. PRODUCT INSTALLATION/POSITIONING
a. When Rotax is responsible for the installation and/or positioning of its Products, the Client guarantees access to a water supply, the presence of a work space and the possibility of secure Any difficulty which might occur due to a shortcoming on the part of the Client and which might generate additional cost (crane operation, unloading, cost of additional deliveries, storage costs, etc.) shall be the financial responsibility of the Client.
The positioning and installation shall be the subject of a receipt report.
b. When the Client is responsible for the installation and/or positioning of Rotax Products, the Client remains solely responsible for the proper installation/positioning of the Rotax Products, with particular regard to installation in accordance with the state of the art, the standards applicable within the sector and more specifically, when they exist, the standards and recommendations indicated in the technical documentation supplied by Rotax.
c. The Client undertakes to authorise the performance of a technical inspection by Rotax or its representative at any time, whether before, during or after the installation of the Rotax Products. The purpose of this is to ensure the conforming installation of the Product. Such inspection is optional and remains at the discretion of Rotax, which shall meet all of the related costs.
10. FORCE MAJEURE
In the event of force majeure as defined in Article 1218 of the French Civil Code, the Client agrees to receive partial delivery of the Products ordered.
Wherever possible, the notification of force majeure event shall be made within a period of 48 (FORTY- EIGHT) hours following the start of the event cited. For the sake of efficiency, the notification shall be sent via the most rapid method (e-mail and/or telephone) and should then be confirmed by registered letter with acknowledgement of receipt.
The end of the situation of force majeure shall be notified in the same way.
If the impediment is temporary, the fulfilment of the obligations shall be suspended unless the delay that would result justifies the cancellation of the Contract. Such a temporary suspension shall not exceed 6 (SIX) months in any case.
If the impediment is permanent or if it extends beyond the temporary suspension period mentioned above, the Contract shall be automatically terminated and the Parties freed from their obligations.
11. GUARANTEE – LIMITATION OF LIABILITY
11.1.1 – Rotax guarantees that its Products conform to the state of the art and to the standards applicable in its business sector.
Rotax provides a contractual guarantee for all of the Products under the following conditions:
Rotax guarantees the Client against defects of design and manufacture. This guarantee shall come into play only after technical inspection carried out by Rotax to confirm that the Product has been properly installed in accordance with the state of the art.
Rotax cannot be held responsible for any malfunction of Rotax Products caused by a non-conforming installation carried out by the Client. The Client alone shall be responsible and all repairs required to Rotax Products shall be carried out at the cost of the Client.
Within the framework of the implementation of the guarantee, the performance of a detailed technical inspection shall remain at the sole discretion of Rotax and may take place in the event of any malfunction, breakdown or fault of a technical nature with Rotax
Products. Any refusal by the Client to allow Rotax to conduct a technical inspection or to make the modifications requested by Rotax in the inspection report shall invalidate the guarantee provided by Rotax, without prejudice to any of the latter’s statutory rights and remedies and without the Client being entitled to seek any recourse against Rotax.
If an inspection shows that the malfunctions stem from a nonconforming installation or usage or from maintenance that does not comply with the technical instructions, all costs connected with the inspection and repair shall be payable in full by the Client.
This guarantee shall expire 2 (TWO) years after the signing of the acceptance report by the Client or, by default, the date of invoicing.
Work conducted under the guarantee shall not have the effect of extending the guarantee period if said work is of a duration inferior to 3 (THREE) months.
11.1.2 – Under the guarantee, the sole obligation for Rotax shall be the free replacement or repair, at its discretion, of the Product or element recognised as being defective, excluding installation services, unless this method of compensation proves to be impossible or
In order to benefit from the guarantee, any Product must first be submitted to the Rotax after-sales service, whose express written approval is required before any guarantee service can take place, after verification of factors including the installation/positioning conditions.
For the performance of its guarantee, Rotax makes the necessary parts available. The Client shall not be entitled to claim any compensation in the event of immobilisation of the asset due to the execution of the guarantee.
The guarantee provided by Rotax does not cover wearing parts, a list of which may be supplied to the Client on request. Delivery costs for wearing parts shall be systematically payable by the Client.
The guarantee shall not apply when the Client is in default on the payment of the price of the Contract.
The guarantee excludes defects and deterioration resulting from negligence, poor maintenance, insufficient or inappropriate cleaning, as well as any other chemical or atmospheric effects, whether attributable to the Client or to a third party, or resulting from any modification of the Product carried out without being approved, planned or specified by Rotax.
Rotax shall be entitled to demand the transmission to it by the Client of the official documents proving proper maintenance (registers, reports, etc.) prior to the processing of its request for work to be carried out under the guarantee.
Irrespective of the validity of any complaint made by the Client and the procedure followed to implement it, the possible liability of ROTAX for non-fulfilment of the obligations stipulated in this GCS shall be limited to an amount not exceeding the total sum actually paid by the Client for the fulfilment of the Order.
In any case, by way of exclusion of liability, the Client agrees that Rotax shall not incur any liability for any loss of profits, commercial issues, or any other compensation claims not directly and certainly linked to said non-fulfilment of the Contract and which the Client might suffer, or for any claims or complaints expressed against the Client and emanating from any third party.
12. RETENTION OF TITLE
Rotax reserves the ownership of all Products delivered until full payment of their price in principal and interest.
In the absence of payment by the Client of a single fraction of the price by the due dates agreed and 48 (FORTY-EIGHT) hours after formal notice has produced no result, Rotax may demand the return of the goods delivered at the cost and risk of the Client, without the latter being able to object to this. The return of the Products is a purely precautionary measure and shall not result in the automatic cancellation of the sale contract, which remains in full effect.
The transfer of risks shall take place upon delivery.
13. INDUSTRIAL AND INTELLECTUAL PROPERTY
When Rotax carries out work involving, on its part, a creative activity protected by French or international legislation on intellectual or industrial copyright, all rights linked to this creation shall remain in its possession, including in the event of the receipt of specific remuneration or of transfer to the Client of ownership of the physical object to which the copyright relates.
The Client is prohibited from any reproduction or use of Rotax creations – irrespective of their form – without the express, written, prior authorisation of Rotax.
The Client authorises Rotax to use the Client’s name and images of the Products installed as a commercial reference and showcase.
14. APPLICABLE LAW – APPLICABLE LANGUAGE
a. All GCS, estimates, Orders, Contracts and commercial relations shall be governed by French law. International transactions are subject to the rules of international trade (Incoterms 2010), provided they are specified in the special conditions.
b. The language applicable to these GCS, as well as to all estimates, Orders and Contracts, shall be These documents may be translated into English but only the French version shall prevail.
15. DISPUTES – JURISDICTION
In the event of any dispute, the parties shall first seek an amicable resolution and, for this purpose, shall exchange all necessary elements of information.
In the absence of any amicable settlement to the dispute being found within a maximum deadline of 3 (THREE) months from its emergence, the sole competent courts shall be those of Bourg-en-Bresse (Ain – France).
In the event of a particular stipulation of the special or general conditions becoming null and void, it shall be deemed unwritten but the other stipulations shall retain their full force and scope, unless the clause in question is considered by Rotax to be substantial and decisive to its agreement or if the nullity disrupts the general equilibrium of the Contract.