I - GENERAL STATEMENTS

 

1.1 - Application of the General Terms and Conditions

This general terms and conditions for sale apply to the contractual relationships between Valpes SAS, designed herein as the "Supplier" and the Customer company hereinafter referred to as the "Customer".
Any departure from these general terms and conditions must be expressly accepted by the Supplier in writing

1.2 - Cooperation of the parties

The Customer has the duty to cooperate with the Supplier and to provide it in writing with all complete, specific and reliable information regarding:

• its clearly expressed needs,
• the conditions for operation of the equipment and for the environmental requirements thereof,
• the composition and special characteristics of products that it must treat with the equipment.

The conformity to the contract shall be assessed in function of whether or not the Customer fulfils these obligations. In no event shall the Supplier be held responsible for the consequences of an omission or error in elements that the Customer provides. These obligations also involve possible phases of study, realization and development of the equipment, and apply as well to the Customer's agent or representative.
The Supplier shall be attentive to the Purchaser's requests, and shall satisfy them to the extent that it is feasible to do so, providing that they comply with the contract and the professional standards. The Supplier shall advise, within the limit of its technical knowledge, of any possible construction constraints and effects of which it may become aware regarding use of the product.

II - CONTRACTUAL DOCUMENTS

These general terms and conditions for sale, as well as the particular terms and conditions agreed by the two parties (as the case may be), constitute an integral part of the contract.
The Supplier's technical specifications constitute the technical basis of contracts unless otherwise specifically agreed.
Documents such as promotional materials, catalogues, advertising, and prices that are not expressly specified in the particular terms and conditions are not part of the contract. Information, photos, weights, prices and drawings appearing in catalogues, leaflets and price lists are provided only for indicative purposes, and are not contractual documents. The Supplier reserves the right to make any changes therein.

III - ORDERS, TRAINING AND CONTENT OF THE CONTRACT

 

3.1 - Offer, prices and acceptance

Unless otherwise provided, the offer is valid for one month.
The prices are established net of taxes, customs duties, costs of transport, insurance and packing, and are billed pursuant to the contractual terms.
Unless otherwise agreed beforehand on a specific price, any delivery of catalogue products is invoiced at the price indicated on the order's acknowledgement of receipt.
Payments are made in euros unless otherwise specified in the contract.
If, in order to satisfy the Customer's requests, specific prior studies are required for establishing the offer, but this offer is not followed by an order, these studies shall be subject to a specific charge. Completion of the contract occurs only with the Supplier's express acceptance of the order in writing by any means.

3.2 - Content of supplies

The contract shall be limited strictly to the supplies and services that are expressly specified by the Supplier in its offer or catalogue.
The Supplier reserves the right:

• to replace the contractual products by products of equivalent specifications, subject that the Customer does not suffer any price increase or a change in quality, and
• to entrust to any subcontractor of its choice the totality or part of the contractual studies, supplies or services.

 

3.3 - Change and suspension

Any change or suspension in the contract requested by the Customer must be expressly accepted by the Supplier and formalized in a written agreement, which shall take into account the additional costs and times resulting there from.
In any event, the Supplier may invoice the part of the order that is already in process.

3.4 - Cancellation of order

The order expresses the Customer's irrevocable agreement and its commitment; hence, the Customer cannot cancel it unless the Supplier expressly consents thereto beforehand. Consequently, if the Customer requests cancellation of all or part of the order, the Supplier has the right to demand execution of the contract and full payment of the sums stipulated therein. In the event that the Customer cancels an order for Highly Customized Products for reasons which are not imputable to the Supplier, the Supplier shall be entitled to charge to the Customer, and Customer shall compensate to the Supplier, an amount equal to any and all costs and expenses incurred by the Supplier in performing the purchase order until receipt of the notice of cancellation (including for instance and where applicable studies, development and testing costs incurred for the development of the Highly Customized Product, as well as existing inventory of Highly Customized Products and any and all specific components that would have been specially purchased or manufactured by the Supplier to perform the purchase order). Upon request of the Customer, the Supplier will detail its costs and expenses which will in total in no case be higher than the agreed purchase price for the relevant order.
For information, Highly Customized Products are special or modified products which are adapted to specific customer needs and requirements and for which the Supplier does not have an alternative future use. Highly Customized Products are – by nature - not destined to be sold to other customers, except to the Customer who ordered it.

3.5 - Returns of products

A return - i.e. the return of goods and the establishment of a credit for the Customer - may be effectuated only with the express prior written agreement of the Supplier, which will specify the conditions of such return. For this, the Customer must contact the Supplier's commercial department in order to get prior agreement and a return reference.
The fact that the Supplier agrees to take back a product, does not confer on the Customer the right to return other products, even if identical.
If the Supplier consents to a return, it must, in particular, meet the following cumulative conditions:

• a return is accepted only of products displayed in the Supplier's catalogue in effect at the time of the return request;
• the Customer must return the product carriage paid, at its expense and risk, to the place indicated by the Supplier;
• any goods to be returned must be sent back with the return reference provided by the Supplier's commercial department otherwise the return will not be accepted;
• the product must be returned in perfect condition, protected and packed in its original packing;
• a return does not exempt the Customer from its obligation to pay;
• a return gives rise to the establishment of a credit corresponding to the price of the products involved, after verification of the condition thereof, less a fixed deduction for administrative processing of the return (40%), an additional charge may be applied if, among other, reconditioning, painting or change of packing is necessary for the products to be re-stocked.

If the product has been manufactured pursuant to specifications elaborated to meet technical specificities of the Customer, no return shall be accepted.
Moreover, products which have been marked and/or modified by the Customer after their sale cannot be returned.

IV - CHARACTERISTICS AND STATUS OF ORDERED PRODUCTS

 

4.1 - Purpose of the products

Delivered products conform to the technical regulations applicable thereto and to technical standards in respect to which the Supplier has expressly declared the conformity thereof.
The Customer is responsible for installing and implementing the product pursuant to the ordinary conditions of use and in accordance with the safety and environmental laws that are in effect at the place of use, as well as with the proper procedures of its profession. The Customer must also strictly comply with the Product's user manual, in particular regarding its installation.
In particular, it is the Customer's responsibility to select a product that meets its technical requirements and, if necessary, to ensure with the Supplier that the product is suitable for the envisaged application.

4.2 - Packing of products

Non-returnable packing is not taken back by the Supplier. Packing is effectuated according to the Supplier's standard. It conforms to the applicable environmental regulations according to the purpose of the products. The costs of special packing shall be covered by the Customer. The Customer commits to eliminate the packing pursuant to the local environmental laws.

V - INTELLECTUAL PROPERTY AND CONFIDENTIALITY

 

5.1 - Intellectual property and knowledge of documents and products

All of the intellectual property rights, as well as the knowledge included in transmitted documents, delivered products and provided services remain the Supplier's exclusive property. Any transfer of intellectual property rights or knowledge must be subject to a specific contract.
All plans, descriptions, technical documents or estimates provided to the other party are transmitted thereto as a gratis loan, the purpose of which is to evaluate and discuss the Supplier's commercial offer. They shall not be used by the other party for any other purposes. These documents must be returned to the Supplier upon first request.

5.2 - Confidentiality

The parties are reciprocally committed to a general obligation of confidentiality regarding any oral or written information, regardless of the nature or the medium thereof (discussion reports, plans, exchanges of computerized data, activities, installations, projects, expertise, prototypes developed at the Customer's requests, products, etc.) that are exchanged when preparing and executing the contract, unless said information is a matter of common knowledge or will become so by means other than through the Customer's wrongful act or omission.
Therefore, the parties commit to:

• keep strictly secret all confidential information and, in particular, refrain from disclosing or transmitting all or part thereof to any person by any means, directly or indirectly, without the other party's written authorization beforehand;
• refrain from using all or part of confidential information for purposes or an activity other than performance of the contract;
• refrain from making copies or imitations of all or part of confidential information.

The parties commit to take all necessary measures to ensure compliance with this obligation of confidentiality throughout the duration of the contract and even after the expiration thereof, and guarantee compliance therewith, by all of their employees and subcontractors or other contracting parties. This obligation is absolute.

5.3 - Guarantee in the event of infringement

Each party guarantees that the elements it provides or designs for execution of the contract (plans, specifications, processes, and their conditions of application, etc.) do not use intellectual rights or proprietary expertise owned by third parties. They guarantee that they have the right of free disposal of said elements without conflicting with a contractual or legal obligation.
They mutually guarantee each other against the direct or indirect consequences of any action for civil or criminal liability, particularly an action for infringement or unfair competition.

VI - DELIVERY, TRANSPORT, VERIFICATION AND ACCEPTANCE OF PRODUCTS

 

6.1 - - Times for delivery

Delivery times commence to run from the latest of the following dates:

• date of the order's acknowledgement of receipt;
• date of receipt of all of the information, approvals, materials, products, details of execution due from the Customer or which are necessary for execution of the contract, or, when applicable, receipt of the down payment;
• date of execution of preliminary contractual or legal obligations incumbent on the Customer.

The agreed time limits must be specified in the contract, including their nature (times for availability, presentation for acceptance, delivery, legal acceptance, etc.). However, the stipulated time limits are only indicative and shall not be invoked in circumstances that are beyond the Supplier's control, particularly in the event of the Customer's failure to perform its contractual obligations.

6.2 - Terms of delivery

Deliveries in France are considered DAP France (“Delivery At Place”) pursuant to the last publication of the INCOTERMS of the International Chamber of Commerce, in effect on the date of conclusion of the contract.
For standard delivery, a minimum transportation costs of 35 € will be invoiced for any order below 2000 € (VAT excluded). In the event of a large volume (more than two pallets) or the Customer is sent material that does not come from the Valpes supply, the customer may be asked to contribute an additional contribution to the shipping costs.
For express deliveries, additional shipping fees will be applied depending on the weight and destination of the goods.
Export deliveries are considered FCA Moirans, pursuant to the last publication of the INCOTERMS of the International Chamber of Commerce, in effect on the date of conclusion of the contract, depending on the carrier chosen by the Customer.
The cost of the FCA document is €35, the cost of which will be borne by the Customer .
The risks are thus transferred to the Customer upon delivery as specified above, without prejudice to the Supplier's right to invoke the reservation of ownership clause or use its right of retention.
In the event that the Customer contracts for the provision of transport services and assumes the cost thereof, it shall assume responsibility for all financial consequences of a direct action of the carrier against the Supplier. Any storage requested by the Customer shall be subject to an express agreement in which the financial terms, duration and risks must be specified.

6.3 - Verification of products upon delivery

Whatever the terms of delivery, it is up to the Customer, at its expense and under its responsibility, to verify the products or have them verified upon their arrival. In the event of damage or non-conformity with the purchase order, the recipient:

• shall note its reservations on the delivery slip, and shall immediately inform the Supplier in writing;
• shall express its reservations to the carrier according to the procedures and within the times specified by the regulations applicable to the mode of transport, with a copy thereof to the Supplier.

 

6.4 - Taking over

Upon the unpacking, the Customer must verify the conformity of the products with the terms and conditions of the contract, and must report to the Supplier any visible or detectable defects within 7 days as from the delivery.
Any actions, including collections, controls, inspections, tests and certificates requested by the Customer are at its expense. These additional actions shall be carried out in factory or on site at the Supplier's discretion.
If the product has been manufactured pursuant to specifications elaborated to meet technical specificities of the Customer, the contract may specify conditions of taking over. Each of these acceptances may be effectuated with or without reservations.
Acceptance shall be deemed to be given without reservations if the Customer uses the product (even in a limited way) or if it expresses reservations considered to be minor, which do not prevent use of the product in normal conditions independent of the level of the observed performance.

VII - HARDSHIP AND FORCE MAJEURE

 

7.1 - Hardship

If an event that is beyond the parties' control compromises the equilibrium of the contract to such an extent that one of the parties is unable to execute its obligations, the parties agree to negotiate in good faith a modification of the contract. Such events include particularly: the occurrence of a fluctuation in the price of raw materials, a change in customs duties, a change in the exchange rate or in the applicable laws and regulations. Should the parties fail in their negotiations, they agree to appoint a mediator or to call for a judicial conciliator at the competent Commercial Court.

7.2 - Force majeure

Neither party to this contract shall be held liable for its delay or failure to execute its obligations hereunder if such delay or failure is the direct or indirect consequence of an event of force majeure, defined in a broader scope than that of the French case law, such as, for example: the occurrence of a natural disaster; earthquakes, storms, fires, floods etc.; conflicts, wars, attacks, labour conflicts, total or partial strikes; mandatory orders from the public authorities (import prohibitions, embargos) ; operating accidents, machine breakdowns, explosions.
Each party shall immediately inform the other party of the occurrence of an event of force majeure brought to its knowledge which, in its opinion, is of such a nature as to affect the performance of the contract.
The parties must consult with each other within the shortest possible time to examine in good faith the consequences of the event of force majeure, and mutually consider the measures to be taken.

VIII - PAYMENT

 

8.1 - Terms of payment

Unless otherwise expressly agreed, payments shall be made at 45 days end of month or at 60 days net from date of invoice. This payment condition is in accordance with article 21 of the Economy Modernisation Law 200-776 dated 4 August 2008, which imposes a maximum period to all French companies as described above, from 1 January 2009. The invoices are payable at the address on the invoices, net and in the currency specified at the bottom of the invoice.
For new customers a prepayment is requested for the first order. Prepayment is also requested for non-EEC customers. The contractually agreed dates of payment shall not be contested unilaterally by the Customer for any reason whatsoever, even in the event of dispute.
Early payments are made without discount, unless otherwise specifically agreed.

8.2 - Late payment

In accordance with Act n° 2001-420 of May 15, 2001 and with the European directive 2000/35 EC of June 29, 2000, any late payment entails the application of default interest equal to the most recent refinancing rate of the European Central Bank increased by ten percentage points within the limit of three times the legal interest rate. The Customer will also be liable for a lump sum compensation for recovery costs in the amount of 40 euros.
Any payment not made on a due date constitutes an event of default which, at the Supplier's discretion, results in the immediate payability of all sums outstanding, even those that have not yet fallen due. The fact that the Supplier invokes any one of these provisions does not deprive it of the right to apply the reservation of ownership clause stipulated in article 8.5.
In the event of late payment, the Supplier has a right of retention in the manufactured products and related supplies pursuant to article 2286 of the French Civil code.

8.3 - Changes in the Customer's situation

In the event of deterioration in the Purchaser's situation observed by any means and/or demonstrated by late payment or repeated tardiness, or when its financial situation substantially differs from data that are provided, the delivery of orders in process shall be made only in consideration of the immediate payment thereof.
In such event, the Supplier reserves the right without notice to:

• declare a default resulting in the immediate payability of all sums that remains owed in any respect whatsoever;
• suspend any shipment;
• establish first the rescission of all current contracts and, second, retain the instalments and parts that it received;
• reject any new order.

 

8.4 - Offsetting of payments

The Customer is strictly prohibited from any practice such as automatic debiting or invoicing of the Supplier for sums that the latter has not expressly recognized to be its responsibility.
Any automatic debiting constitutes an outstanding payment giving rise to the application of the provisions regarding late payments, and may be sanctioned pursuant to article L442-6 I 8° of the French Commercial code. Only an offsetting effectuated under conditions specified by law is permitted.

8.5 - Reservation of ownership

The Supplier retains full ownership of the products until the effective payment of the entire principal and ancillary items constituting the price. Default of payment on any due date may entail the repossession of these products. However, upon delivery, the Customer assumes liability for damage that these products might incur or cause.

IX- WARRANTY AND LIABILITY

The Supplier offers the Customer contractual guarantees for the Products purchased. These contractual warranties are distinct from the statutory warranties enjoyed by the Customer and do not limit the rights enjoyed by the Customer under such statutory warranties.

9.1 - Contractual warranty

Unless otherwise stipulated, the Supplier offers a contractual guarantee:

• three (3) years or fifty thousand (50,000) operations for electric actuators (whichever occurs first),
• two (2) years or five hundred thousand (500,000) pneumatic actuator (whichever occurs first).

This contractual warranty does not cover the BBPR system and actuator batteries, which are covered by a separate warranty (Article 9.2.).
The contractual warranty period begins to run from the date on which the products are made available at the Supplier's premises.
To invoke the contractual warranty, the Customer must notify the Supplier within seven (7) days in writing of the defects that it attributes to the Product as soon as it becomes aware of the said defects and specify the conditions of use existing at the time of the discovery of these defects.
Product returns are only accepted if they have been previously authorized by the Supplier.
The warranty consists only, at the option of the Supplier, in the repair or replacement of the Products found to be defective by it, returned to its workshops. It does not cover travel, transportation or shipping costs and drop-off costs such as handling fees. These costs are the responsibility of the Customer.
Any product that has been repaired is warranted under the contractual warranty for six (6) months.
Under no circumstances does the guarantee allow a return according to the sole will of the Customer, or a refund.
In the absence of an agreement with the Customer, products for which a warranty claim has been rejected will be scrapped if they are not claimed within 8 days of the notice of destruction.

9.2 - Warranty of the BBPR system and the batteries

The Valpes BBPR function is guaranteed for a maximum of 18 months from the date of delivery (calculated from date of invoice), as follows. This guarantee covers the batteries of BBPR Valpes actuator models that are unusable or out of order due to defects in materials and/or workmanship. This warranty covers the Valpes BBPR range of products which are correctly dimensioned and used in the application for which they have been designed and which are charged with an approved charge profile according to the Valpes BBPR technical data sheet which can be found on valpes.com. Proof of purchase and return of the product(s) in question must accompany any request for warranty coverage. No exception will be accepted:

The warranty applies if and only if the following conditions are met:

• BBPR VALPES actuators are correctly sized and used according to the purpose for which they were designed, and are loaded with an approved load profile according to the Valpes BBPR data sheet available on the www.valpes.com website;
• the actuator undergoes no more than one back-up operation (using the BBPR function) per week;
• the storage of the BBPR module/BBPR actuator has been correctly carried out (storage temperature between -10 °C and +25 °C) and a maximum of six (6) months has elapsed between its manufacture and its first commissioning;
• the actuator is continuously supplied with an adequate power source;
• the actuator was used within the temperature range specified in the commissioning manual for the device.

This warranty does not apply to batteries that break or fail due to misuse or neglect, such as, for example:

• a charging system problem/incorrect charging creating an overloading or undercharging situation;
• prolonged storage of the Valpes BBPR actuator or very minimal use;
• use causing deep discharges (high accessory loads, etc.);
• electrical faults, short circuits, excessive loads, and loose wiring;
• consumer damage to the battery or other installation defect;
• any changes to the battery.

 

9.3 - Exclusion of warranty and liability

The contractual warranty does not apply, and any liability of the Supplier is excluded, in the following cases:

• normal wear and tear of parts; installation or use not in accordance with the rules of the art, D.T.U. or the defined technical specifications;
• failure to comply with installation, use and maintenance instructions;
• failure to monitor, store or maintain; Customer's error in the choice of installation, commissioning, adaptation without the Supplier's consent;
• modification or intervention by the Customer or a third party on the product not authorized by the Supplier, or carried out with non-original parts and/or consumables; wear and tear due to lack of maintenance;
• deterioration resulting from shock (physical, thermal or chemical), clumsiness, poor condition of use (gel, corrosive or abrasive product (e.g. bleach, peroxide, chlorine, etc.), foreign matter circulating in the water, etc.) or inexperience of the Customer or its staff;
• non-compliance with the NF EN 12729 standard relating to the conditions for installation and annual inspection of type BA disconnectors;
• models entrusted to the Supplier by the Customer, it being specified that in this case, the responsibility is borne entirely by the Customer or the Customer.

The warranty does not apply, and any liability of the Supplier is excluded, in the event of non-payment by the Customer of the sale price of the product, and the Supplier cannot avail itself of the warranty call to suspend or defer its payments.
Where no agreement has been reached with the Customer, the Supplier will scrap any unclaimed goods 8 days after giving notice

9.4 - Out of warranty repairs

When the warranty is not applicable, the cost of the appraisal is €50 per actuator. Please note that the Customer's shipment to Valpes of the product(s) concerned by a repair request cannot be carried out without the prior agreement of Valpes.
If the Customers accepts the repair estimate, the cost of the expertise will be offered.
If the actuator is not repairable or if the Customer refuses the quote, the cost of the expertise will be invoiced to the Customer and the product will be returned to the Customer at the Customer's expense. Expert reports are sent on request only and will be invoiced according to the desired degree of accuracy.
The request must be made before receiving the material.

9.5 - Liability

The Supplier's liability is strictly limited to compliance with contractual specifications. The Supplier shall manufacture the product or provide the service requested by the Customer in compliance with the standards of its profession.
The Supplier's liability shall be limited to direct material damage suffered by the Customer due to wrongful acts or omissions of the Supplier when executing the contract.
The Supplier shall not be required to indemnify consequential or indirect damages such as operating losses, profits, deprivation of a right or opportunity, commercial injury, financial loss.
The Supplier is not required to redress the injurious consequences of wrongful acts or omissions of the Customer or third parties in respect to execution of the contract, and that is especially so in the events listed in article 9.1.
The Supplier is not liable for damage resulting from the Customer's use of technical documents, information or data coming from, or imposed by, the Customer.
The Supplier's civil liability, for any causes except for bodily injuries and gross negligence, is limited to the cost of order collected on the date of the service.
The Customer guarantees the Supplier or its insurers against recourse taken by its insurers or third parties in contractual relationships therewith, above the limits and exclusions specified above.

9.6 - Export

Sale or retransfer of products supplied by the Supplier must comply with applicable laws restricting the export or re-export of those products (“Export Controls”), including all economic or financial sanctions, and trade embargoes imposed, administered or enforced from time to time by the U.S. or EU government (including its Member States) or other relevant sanctions authority with jurisdiction over Supplier (“Sanctions Laws”). The Customer understands and agrees that with respect to Supplier’s products provided to the Customer:

• Customer will not export, re-export or otherwise transfer Supplier’s products directly or indirectly to (i) a country, territory or person to which/whom such export, re-export or transfer is prohibited by applicable law, including without limitation Export Controls and Sanctions Laws; or (ii) to a country or territory that is itself the subject or target of comprehensive Sanctions Laws including U.S. Sanctions (“Sanctioned Territories”). As of the date hereof, the Sanctioned Territories are Crimea, Cuba, Iran, North Korea, disputed territories of Ukraine (including Donetsk People's Republic (DNR) and Luhansk People's Republic (LNR)) and Syria, although the U.S. government may add or remove Sanctioned Territories in the future.
• Customer will not sell, supply, export, re-export, or otherwise transfer, directly or indirectly, to Russia or Belarus or for use in Russia or Belarus any of Supplier’s products that fall under the scope of Article 12g of Council Regulation (EU) No 833/2014 (as amended from time to time). Customer will not, directly or indirectly, intentionally transfer, sell, export or re-export Supplier’s products to a third party with the knowledge that the products will be used in, or sold, exported or transferred to, Russia or Belarus. If requested, Customer shall promptly provide Supplier with documentary evidence verifying compliance with this paragraph and shall notify Supplier immediately upon becoming aware that it or any of its counterparties or resellers are not in compliance with this paragraph. Supplier may suspend or terminate performance if Customer is in violation of this paragraph, which will constitute a material breach of these general terms and conditions]. Supplier will also be entitled to seek appropriate remedies from Customer (without prejudice to its other rights and remedies).
• Customer further confirms that it is not acquiring the products for any military, nuclear or missile end use or end user. If this is not correct, Buyer is required to notify Seller immediately at valpes-adv@wattswater.com

 

X - PENALTIES

When penalties and indemnities are mutually agreed, they are deemed to serve as a fixed and liquidated indemnification, and exclude any other type of sanction or indemnification. These contractual penalties are capped, and apply only to the part of supplies or services that is involved.

XI - DISPUTES AND APPLICABLE LAW

These general conditions for sale are submitted to the French law. The parties commit to resolve their disputes by amicable means before submitting them to the competent Court. These general conditions for sale are submitted to the French law.
In the absence of amicable settlement, it is expressly agreed that any dispute related to the validity, the interpretation, the conclusion, the execution of these general conditions or termination of the contract or termination of business relationships shall be adjudicated exclusively by the Court located in the area of the Supplier's registered office, even in the event of a secondary decision or a multiplicity of defendants.