GENERAL TERMS AND CONDITIONS OF SALE

elvia electronics group

1. PREAMBLE

These General Terms and Conditions of Sale (hereinafter the ‘GTCS’) apply to any Order placed by a customer (the “Customer”) with any company in the elvia electronics Group whose registered office is located at Avenue d’Ochsenfurt, 50200 COUTANCES (hereinafter ‘elvia electronics’).  Any other clauses or conditions may only be invoked in the context of special conditions expressly agreed between the Parties under the Order or if agreed in a valid ad hoc contract duly signed by the Parties.

The contractual documents are defined as follows:

  • These GTS,
  • The Conformity Matrix(es) for the Customer Definition Files,
  • The Offer,
  • The Order(s).

In the event of any contradiction or inconsistency between the documents referred to above, the said documents shall prevail in the order in which they are listed.

2. DEFINITIONS

Technical Specifications: reference document agreed between elvia electronics and the Customer including (i) the Customer Definition File and (ii) the Conformity Matrix. Each Order shall refer to the Technical Specifications agreed between the Parties or, failing this, the Technical Specifications shared between the Parties shall be systematically deemed to be a document applicable to the Order.  The Conformity Matrix shall take precedence over the Customer’s Definition File.

Order: any order issued by the Customer with a view to the supply of Products and/or the performance of Services, resulting from the Offer and accepted in writing by elvia electronics through the transmission of an Order Acknowledgement.

Definition File: the Customer’s document which describes the Product and according to which the Product is to be manufactured.

Day: means a calendar day.

Compliance Matrix: document from elvia electronics ensuring the traceability of the requirements applicable under the Order.

Tooling: all the tangible elements set out in the Specification enabling the Products to be manufactured and/or the Services to be performed, which are the subject of the Order.

Products: printed circuit boards ordered by the Customer from elvia electronics which are manufactured and/or distributed by elvia electronics in accordance with the corresponding Technical Specifications.

Services: training, expertise, advice or assistance services provided by elvia electronics and defined in the Technical Specifications.

Companies in the elvia electronics Group: the following companies are considered to be companies in the elvia electronics Group:

  • ELVIA Printed Circuit Boards, registered in the Coutances Trade and Companies Register under no. 389 502 253, with its registered office at avenue d’Ochsenfurt – 50200 COUTANCES
  • A&P – LITHOS, registered in the Rennes Trade and Companies Register under no. 582 142 451, with its registered office at 20 rue Joliot Curie, 35220 CHATEAUBOURG
  • Beauce Réalisations et Etudes Electroniques (B.R.E.E.), registered with the Orléans Trade and Companies Registry under no. 329 816 623, with its registered office at 6 route de Briarres – BP 68 – 45390 PUISEAUX
  • CIRETEC, registered with the Orléans Trade and Companies Register under no. 338 731 326, with its registered office at Zone d’Activités – 1 rue Jean Monnet – 45130 SAINT AY

3. OFFER AND ORDER

3.1. The technical and commercial offer of elvia electronics (hereinafter ‘Offer’) is valid if it is accepted immediately or if the associated Order takes place within its validity period. If not expressly stated in the Offer, the validity period will be one (1) month.

Any resulting Order must be placed in writing and be accompanied by the Technical Specifications and Compliance Matrix agreed between the Parties. elvia electronics reserves the right to refuse any Order that does not comply with its Offer and/or the Technical Specifications and/or the Compliance Matrix. In any event, any automatic or computer-generated response to an Order shall not be deemed to be acceptance of the Order by elvia electronics.

3.2. The Order shall be final when elvia electronics issues an acknowledgement of receipt of the Order.

4. TECHNICAL MODIFICATIONS

If the Customer wishes to make technical changes after an Order has been accepted, such changes must systematically be subject to the prior written agreement of elvia electronics. elvia electronics will provide a detailed quotation proposal indicating the price and deadline changes to be expected within thirty (30) Days. After negotiation, an amendment to the Order will systematically be concluded between the Parties and a new formal Acknowledgement of Receipt will be sent.

5. CONFIDENTIALITY

Unless specifically agreed otherwise between the Parties, each Party undertakes not to communicate, for any purpose other than the performance of its contractual obligations under the Order, to any third party, without the prior written consent of the other Party, any information exchanged with it during the negotiation phase. This obligation shall bind the Parties for the entire duration of the negotiation and performance of the Order and for a period of five (5) years from its termination or expiry. Each Party undertakes to impose the same obligation of confidentiality on any of its suppliers and subcontractors.

6. INTELLECTUAL PROPERTY

Background Information
Each Party retains ownership of its Background Information. As such, each Party shall remain free to use its Background Information as it sees fit.

For the duration of an Order and insofar as the Background Information is necessary for the performance of the Order in question, each Party hereby grants the other Party, at its request and subject to the rights of third parties, a non-exclusive, non-transferable right to use its Background Information without the right to sub-licence (other than to subsidiaries with a need to know) and without financial consideration. This right is exclusively and strictly limited to the requirements of carrying out the Order in question.

Foreground Information
The intellectual property rights attached to the Foreground Information generated from the Technical Specifications shall gradually become the property of elvia electronics. Consequently, elvia electronics shall be free to exploit them to satisfy any need of its choice.

It is further agreed between the Parties that :

  • the Design for Manufacturing analyses carried out by elvia electronics may in no way be used or exploited by a competitor of elvia electronics or even be used or exploited directly or indirectly for a business competing with that of elvia electronics;
  • improvements and modifications made by elvia electronics to its Background used for the manufacture of products in the form of manufacturing processes, manufacturing ranges, control plans and/or new tools at the time of the execution of an Order are not considered to be new knowledge and will remain the full and complete property of elvia electronics;
  • all information shared by elvia electronics concerning its manufacturing process and the technical steps necessary for such manufacturing shall remain the property of elvia electronics;
  • in general, no transfer may be made of the manufacturing rules established/deployed by elvia electronics in accordance with the state of the art in printed circuit boards.

Warranty against third party claims
Each Party warrants and represents that, to the best of its knowledge, there is no actual or alleged infringement of any third party’s intellectual property rights in relation to any information, document, material or item supplied by that Party to the other Party for the purpose of the proper performance of the Order. Each Party shall, as soon as reasonably practicable, notify the other Party in writing of any actual or potential infringement of which it is aware and the Parties shall jointly discuss the action to be taken.

7. DELIVERY

All deliveries must be accepted or refused by the Customer:

  • within thirty (30) Days from the effective date of delivery to the Customer located in France and within the European Union within the meaning of the DAP Incoterm applicable between the Parties;
  • Where applicable (major exports), within forty-five (45) Days from the Customer’s actual delivery date within the meaning of the FCA Charles de Gaulle Incoterm applicable between the Parties.

The delivery period shall commence upon elvia electronics’ unconditional acceptance of the Order.

elvia electronics may make any partial or early delivery that it deems appropriate, provided that it informs the Customer in advance.

8. RECEIPT OF PRODUCTS – COMPLAINTS – RETURNS 

Upon receipt of the Products, the Customer must check that they comply with the Technical Specifications, by any check deemed useful and appropriate by the Customer, carried out within the above-mentioned period within the meaning of the Incoterm mentioned in article 7.

In the event of non-compliance, the Customer undertakes to notify elvia electronics of any reservations and/or complaints within the aforementioned period, by registered letter with acknowledgement of receipt, to the address of its registered office. If no complaint is made within this period, the Products are deemed to be in conformity and to have been accepted without reservation.

It is the Customer’s responsibility to justify the reality of the non-conformities, defects or anomalies observed and to put elvia electronics in a position to proceed to their observation and to remedy them. elvia electronics reserves the right to proceed, directly or indirectly, to any observation and verification on site. No Products may be returned without the written consent of elvia electronics, which consent does not imply any admission of liability on any grounds whatsoever. Any unauthorised return will be at the Customer’s risk and expense, including storage costs.

The Products must be returned in accordance with elvia electronics’ instructions, accompanied by a return slip to be attached to the package, in the complete original packaging and in perfect condition. The Products must not have undergone any deterioration or transformation for any reason whatsoever.

Products for which a lack of conformity has been noted and recognised by elvia electronics and/or which are covered by a contractual guarantee will, at the discretion of elvia electronics, be replaced, repaired or modified.

9. PACKAGING

Packaging is produced in accordance with elvia electronics standards, unless otherwise specified.

10. TERMS OF PAYMENT – INVOICING – INTEREST FOR LATE PAYMENT

The prices of the Products and/or Services are stated in the price quotations of elvia electronics and any acknowledgement of receipt of an Order and show the price in Euros exclusive of tax and VAT (which will be invoiced in addition at the rate in force on the date of delivery), or in Dollars as agreed between the Parties.

In the event of an increase in costs and/or general inflation in raw materials or energy and any other factor, elvia electronics has the right to modify the price of the products and/or services. In the event of a price change, this will be sent to the Customer three (3) months before the delivery date. In the event that the Customer refuses or disputes the prices mentioned in the said price confirmation, elvia electronics shall have the right, at its discretion and without incurring any liability, to cancel the Customer’s Order, to suspend its execution in order to postpone the delivery of the products and services to any later date, to execute the Order without change and under the price conditions appearing in the price confirmation.

Unless otherwise stipulated in the Offer, a deposit of thirty percent (30%) of the total amount of the Order shall be due and paid to elvia electronics by bank transfer to the credit of its account within thirty (30) Days from the date of unconditional acceptance of the Order by elvia electronics (as a condition of the Order coming into force), against presentation to the Customer of a commercial invoice for the same amount.

Prices also exclude transport costs, export costs, customs duties or taxes (in the case of delivery of Products outside French territory), which are payable by the Customer. Unless otherwise specified in the Order acknowledgement, invoices are payable by cheque or bank transfer within thirty (30) days of the invoice date. However, depending on the customer risk assessment, particularly in the event of previous payment incidents or a level of solvency deemed insufficient, a reduced payment period may be applied. This assessment is carried out according to an internal procedure defined by elvia electronics and may be reviewed at any time. For all new Customers, the first Order must be paid in full upon receipt of the acknowledgement of receipt from elvia electronics.

The invoice specifies the date on which payment is due and the rate of penalties payable on the day following the payment date stated on the invoice. Payment is deemed to have been made on the date on which the funds are made available to elvia electronics by the Customer.

In the event of late payment, and without the need for prior formal notice, elvia electronics also reserves the right to suspend or terminate any Order(s) in progress, without prejudice to any action for damages.

Failure to pay a single instalment by the due date will result in the immediate payment of all amounts still owed by the Customer to elvia electronics, regardless of the method of payment. In the event of non-payment within the agreed period, the Customer will owe elvia electronics a late payment penalty equal to three (3) times the legal interest rate. In addition to these late payment penalties, a fixed indemnity for collection costs of forty (40) euros will be due by operation of law in the event of late payment.

11. PENALTIES FOR LATE DELIVERY

11.1 After the expiry of a grace period of sixty (60) Days, and if the delay is not attributable to force majeure or to the fault of the Customer or any third party, a penalty of 0.5% of the amount of the Products and/or Services ordered will be calculated for each full week of delay from the day following the aforementioned grace period. In any event, these penalties are capped at five per cent (5%) of the amount of the Products and/or Services that are late and are in full satisfaction of the debt.

11.2 Details of the late payment penalties will be notified to elvia electronics who will be entitled to submit its comments to the Customer within thirty (30) Days of receipt of the Customer’s notification. If no comments are received from elvia electronics within this period, elvia electronics shall be deemed to have accepted the late payment penalties and shall pay them exclusively by bank transfer. They may not be automatically deducted or offset by the Customer.

11.3 If, within one hundred and twenty (120) Days from the contractual date of delivery of the Product or performance of the Services, the Customer does not claim late payment penalties by letter with acknowledgement of receipt, the Customer will be deemed to have waived its rights.

11.4 If the Customer and/or its co-contractors and/or its subcontractors fail to fulfil any of its obligations within the deadlines set out in the contractual schedule (in particular the provision of input data), all subsequent milestones in the contractual schedule will be automatically postponed accordingly for a period at least equal to the duration of the delay in fulfilling the said obligation, without elvia electronics incurring any liability whatsoever as a result of the resulting delay. The Customer must compensate elvia electronics for the consequences resulting from this delay in performance (including all expenses and additional costs borne by elvia electronics).

12. RETENTION OF TITLE AND TRANSFER OF RISK

The transfer of risk, loss and deterioration of the Products will take place at the time of their delivery to the Customer. However, elvia electronics reserves, until full payment of the price by the Customer, and regardless of the date of delivery, a right of ownership over the Products, allowing it to repossess said Products wherever they may be, including in the event that said Products have been resold, consumed, used, combined or mixed with any other goods. Consequently, the Customer shall insure the Products with an ad hoc insurance policy, at its own expense and for the benefit of elvia electronics, until the complete transfer of ownership, on condition that it provides proof of this to elvia electronics at the time of delivery. Failing this, the latter will be entitled to delay delivery until presentation of this proof. Without prejudice to any other action that elvia electronics may be entitled to take against the Customer, any payment made by the Customer will remain the property of elvia electronics.

13. LIABILITY

elvia electronics shall only be liable for defects in conformity and/or faults or defects specific to the Products delivered and/or the Services provided by elvia electronics, to the exclusion of all others.

In no event will elvia electronics’ liability to the Customer under or in connection with the Order, for any reason whatsoever, exceed the total amount exclusive of VAT of the Products/Services concerned.

elvia electronics shall not be held liable for :

  • any damage resulting from the inadequacy or inaccuracy of the information provided in the Specifications ;
  • the Customer’s refusal to implement recommendations made by elvia electronics;
  • any delay caused by the Customer which makes it impossible to meet the agreed deadlines;
  • and more generally any exclusive fault of the Customer or of a third party service provider of the Customer.

elvia electronics shall in no event be liable for any special, indirect or consequential damages of any nature whatsoever, including without limitation, losses, costs, damages, loss of revenue or profits, loss of productivity, loss of earnings and/or damage to brand image.

In the event of a damaging event, the Parties undertake to limit the consequences of said event as far as possible.

14. WARRANTY

14.1 Defects giving right to the warranty

elvia electronics undertakes to manufacture Products and/or provide Services that comply with the Specifications agreed between the Parties and, more generally, with all applicable national and European laws and regulations.

The commitment of elvia electronics does not apply to damage resulting from :

(a) normal wear and tear, and/or,
(b) assembly and/or welding conditions/arrangements not approved in the Specifications or not known to elvia electronics, and/or
(c) technological choices denounced by elvia electronics (material, metallic finish, varnish, etc.) and/or
(d) any combination of the Product with any equipment, product or system designed and/or manufactured by the Customer that has not been approved by elvia electronics, and/or
(e) any modification of the Product made by the Customer or by a third party not authorised by elvia electronics, and/or
(f) any defects and/or faults and/or defects whose cause or origin is to be found in the design of the Product, and/or the Customer’s specifications and/or the Specifications, and/or
(g) more generally, malfunctions, defects, faults or defects resulting from negligence, an act by a third party, a lack of maintenance or storage and/or unauthorised intervention on the Product by elvia electronics.

In any event, the obligations of elvia electronics under this warranty only apply where the printed circuit board – wiring pair has been subject to the necessary qualifications.

14.2 Duration and starting point of the warranty

Unless there are special conditions, the warranty period is twelve (12) months from the date of delivery.
Replaced or repaired Products are guaranteed for the remainder of the warranty period from the date of receipt of the replaced or repaired Product.

14.3 Customer obligations

Customer obligations

To be able to invoke the benefit of the provisions of the warranty, the Customer must :

  • notify elvia electronics, in writing, within a maximum of ten (10) Days from the discovery of the defects that he attributes to the Product(s) and provide all proof as to the reality of these defects,
  • give elvia electronics every facility to proceed with the discovery of these defects and to remedy them,
  • refrain, in addition, except with the prior written agreement of elvia electronics, from carrying out himself or having a third party carry out the repair and modification of the said equipment.

14.4 Implementation of the warranty

elvia electronics reserves the right to modify the defective Products if necessary. Work resulting from the warranty obligation will normally be carried out in the workshops of elvia electronics at its own expense.

15. FORCE MAJEURE

Neither Party shall be in default if the performance of any of its obligations under the Order is partially or wholly delayed or prevented by reason of Force Majeure.

“Force Majeure” shall mean any event beyond the reasonable control of the Party concerned such as, but not limited to: governmental decision or public authority, war (whether declared or not), hostilities, insurrection, act of terrorism, sabotage, fire, flood, explosion, epidemics, quarantine restriction, disruption in the supply of supplies from normally reliable sources (including but not limited to electricity, water, fuel and similar supplies), strike, factory closure and industrial disputes, an act or omission (for example: delay, inability to issue, restriction, suspension or withdrawal of a licence, permit or authorisation), embargo, storm, earthquake, delay by a sub-contractor facing an event of Force Majeure as defined above.

The occurrence of an event of Force Majeure shall automatically suspend performance of the Order and the dates of the Order schedule shall be postponed for the period necessary to overcome the effects of the Force Majeure, and in any event for a period at least equivalent to the duration of the event of Force Majeure.

However, if the event of Force Majeure exceeds a period of six (6) months, either Party may request the termination of the Order, in whole or in part, in accordance with Article 18; the Parties shall then jointly draw up a liquidation statement. In the event of disagreement between the Parties, the disagreement shall be deemed to be a dispute which shall be settled in accordance with the provisions of Article 19.

16. TERMINATION

The Order may be terminated in whole or in part by either Party, in respect of the unfinished part of the Order, in the following circumstances:

a) serious breach by the other Party of any of its obligations under the Order where such breach is not remedied within ninety (90) Days after written notice to remedy has been given by the non-defaulting Party;
b) without prior formal notice in the event of failure by the other Party to comply with its obligations under the Anti-Corruption and Trading in Influence provisions;
c) without prior formal notice in the event of Force Majeure extending for a continuous period exceeding six (6) months in accordance with article 15 of the GCS;
d) in the event of non-payment by the Customer as set out in article 10 of the GCS.

In the event of total or partial cancellation of an Order in cases a) and b) for which elvia electronics is solely responsible and in case c), the Customer shall pay elvia electronics the price of the Products and/or Services for which manufacture and/or production has begun (invoicing as is in accordance with a defined scale), as well as all costs incurred by elvia electronics for the purchase of components, sub-assemblies and/or materials in connection with this Order.

In the event of total or partial cancellation of an Order in case d) or in the absence of fault exclusively attributable to elvia electronics, the Customer shall pay elvia electronics :

  • all Products and/or Services for which manufacture and/or production has begun (invoicing as is in accordance with a defined scale) and/or has been completed, and
  • all direct costs incurred in connection with the Orders at the date of termination, and
  • staff costs incurred in connection with the Orders at the date of termination.

In addition, the Customer undertakes to pay elvia electronics a flat-rate indemnity in proportion to the value of the Order in question, insofar as the Customer benefits from this indemnity from its end customer.

Termination shall under no circumstances entail any right to restitution for the period prior to the effective date of termination.

Termination shall not prevent or delay the payment of any sum due or payable and shall not prejudice the right of either Party to have recourse to arbitration in accordance with Article 20 of the GCS.

17. SUBCONTRACTING

elvia electronics reserves the right to subcontract the manufacture and supply of all or part of the Products and Services ordered by the Customer, which the Customer acknowledges and accepts.

18. INTEGRITY AND CORPORATE SOCIAL RESPONSIBILITY

18.1 Each Party, its executives and employees, shall act in compliance with the laws and regulations (including any applicable extraterritorial laws and regulations) against corruption and influence peddling applicable in its country of registration and in the country(ies) in which each Party carries on its business, (for the purposes of this Article “Regulations”). In addition, the definition of Regulations shall include the French law n° 2016-1691 of December 9, 2016, on Transparency, Fight Against Corruption and Modernisation (known as the Sapin II Law) for any Supplier meeting the criteria of applicability as set therein.

Whether directly or through third parties, neither Party shall propose any offer, promise, gift, present or benefit to any person for herself/himself or for others, with the purpose that this person abuses or because this person would have made illegitimate use of its real or supposed influence in order to obtain distinctions, jobs, contracts or any other favourable decision.

Each of the Parties declares that it has implemented a compliance programme that meets the requirements of the Sapin II Law, insofar as it is subject thereto.

18.2 The Parties declare, warrant and undertake that no legal representative of their company (including, in particular, directors and executive officers of one of the Parties, of the company(ies) controlling such Party and of the ultimate beneficiaries of such Party) :

  • holds, has held in the last three (3) years or will hold, at any time during the term of the Order, a politically exposed position (including a position as a public official); and
  • has any family relationship which could, by virtue of its function or mission, influence the final decision to award the contract by the Customer or the end user, or which could influence a position to be taken by the latter in the context of the award and/or performance of the Order.

In the event that, during the term of the Order, either Party becomes aware of any circumstance likely to call into question this representation and warranty, it shall promptly inform the other Party.

19. PERSONNAL DATA

The Parties undertake to comply with their respective obligations under the data protection regulations (including, where applicable, Regulation (EU) 2016/679 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (RGPD)) that apply in connection with the performance of the Order.

With respect to personal data made available to elvia electronics by the Customer pursuant to the Order, the Customer acts as the data controller and elvia electronics processes the personal data solely on behalf of the Customer. Acting as a processor, elvia electronics undertakes to process the Customer’s personal data in accordance with the Customer’s documented instructions as described in the Order and for no other purposes than those expressly defined and approved by the Customer, unless it is required to do so by the law of the Union or the law of the Member State to which elvia electronics is subject. In this case, elvia electronics will inform the Customer of this legal obligation prior to processing, unless the law in question prohibits such information for important reasons of public interest. elvia electronics undertakes to modify or delete Personal Data following, in particular, the exercise by a data subject of his or her right of access, rectification or deletion: this right may be exercised by sending a letter to this effect to the address of the registered office of elvia electronics indicated in the preamble hereto.

20. APPLICABLE LAW -DISPUTE RESOLUTION

The applicable law is French law. For any dispute, controversy or claim arising out of or in connection with the existence, validity, interpretation, performance and/or termination of the Order, the Parties shall use their best endeavours to attempt to resolve the dispute amicably within their respective hierarchies. If the dispute has not been resolved amicably between the Parties in accordance with the foregoing within sixty (60) Days of its occurrence, the dispute shall be submitted to the jurisdiction of the competent Court.

22. LANGUAGE OF THE CONTRACT

The French version of the GTC shall prevail over any translation.