CUSTOM PRODUCTS
Article 1 – Application of the general terms and conditions of sale / enforceability
These general terms and conditions of sale form the basis of the commercial negotiation and are routinely addressed or delivered to each customer to enable it to place an order.

They take precedence over the customer’s terms and conditions of purchase, unless expressly accepted by GAGGIONE.

By way of derogation from the provisions of article 1119(2) of the Civil Code, any contrary stipulation, enforced by the customer, will therefore, in the absence of express acceptance, be unenforceable against GAGGIONE, regardless of the time at which it may have been brought to its attention.

The fact that GAGGIONE does not at any given time invoke any of these general terms and conditions of sale cannot be interpreted as a waiver of the right to invoke any of these terms and conditions at a later date.

Any order implies the unreserved acceptance by the customer and its full and complete adherence to these general terms and conditions of sale.

These terms and conditions are always intended to apply, by way of subrogation, for all stipulations not provided for, in all agreements expressly entered into by GAGGIONE with its customer.

Any other document, in particular catalogues, is for information and indicative purposes only and is not binding.

Article 2 – Design of parts and tools
Unless expressly agreed otherwise, GAGGIONE is not the designer of the parts it manufactures.

The design resulting in the complete mechanical and/or optical definition of a product, however, can be ordered by the customer.

Acceptance by GAGGIONE to design the part requested by the customer does not imply in any way an obligation of result in terms of the feasibility of the part and does not engage in any way the liability of GAGGIONE for the industrial result sought.

In all cases, the customer, whether in the event of pure and simple production of the part or in the event of design by GAGGIONE of the part with a view to its production, provides a detailed specification on the purpose of the product, its purpose, its use, its life span, its dimensions, its possible integration into another product, without this list being exhaustive.

In the event that GAGGIONE is designer, then in the event of feasibility, manufacturer of parts ordered by the customer, in the specific cases of a design requiring an optical study, it will provide, at the end of this study, a complete and detailed report making it possible to trace all the stages of the research and development carried out.

The mechanical drawings showing dimensions and tolerances of the studied systems will also be provided on request.

GAGGIONE guarantees that the part(s) manufactured as a result of the optical study will conform to the optical performance presented in the optical study report.

In all cases, whether or not it is designer of the part ordered by the customer, the part is considered as being able to enter the industrial manufacturing phase after validation by the customer of the part considered as conforming to its specifications.

Article 3 – Offer and order
The customer’s request for offers must be accompanied by specifications.

The offer made by GAGGIONE shall only be considered firm after its return, including the technical description of its service and the price thereof, with a period of validity also possibly being stipulated.

Within the period of validity of the offer, the order is finalised by the customer returning the offer with the words „Approved and signed“, dated and signed by any authorised person representing the company.

The offer made by GAGGIONE does not in any way guarantee the feasibility of the part and more particularly, the achievement of the industrial result sought.

GAGGIONE, in terms of design and/or study of the production of the part, is bound for only one obligation of means.

The price indicated in the offer may be revised if the customer makes changes to its specifications or to the standard parts presented during the study and implementation of the project.

In the event that the design of the parts is entrusted to GAGGIONE, the offer concerning tools and parts may be reviewed once the design study has been completed and approved by the customer.

In the context of a price offer from GAGGIONE for an optical study, the offer will exclude:

The supply of all technical data allowing the manufacture of systems resulting from the optical study. In particular, the supply of 3D CAD files, including exact optical shapes and/or mathematical equations of the systems studied.
The transfer of intellectual property rights likely to cover in whole or in part the study, manufacture and marketing of the contractual product.
The order documents containing the terms of GAGGIONE’s offer are sent to GAGGIONE’s sales department at the following address: 3 rue de la Rolland, 01460 MONTREAL LA CLUSE (France).

GAGGIONE reserves the right to refuse any order placed by a customer whose solvency it doubts or due to the existence of unpaid invoices or repeated late payments for services or sales previously executed directly or indirectly on its behalfIn the event of late payment, GAGGIONE may decide to suspend delivery of the study or parts ordered in the industrial phase but not yet delivered or to refuse to respond to any restocking orders in the case of open orders.

After a feasibility study, the customer that intends to order the manufacture of the parts from GAGGIONE undertakes to finalise a supply contract or a framework contract in this case.

Unless otherwise expressly agreed in writing, the sale of parts does not entail the transfer to the customer of GAGGIONE’s ownership rights to its design and/or production and/or manufacturing studies.

The same applies to the studies that GAGGIONE proposes to improve the quality or cost price of parts by amending the initial specifications.

The customer, if it accepts them, must agree with GAGGIONE on the conditions of their use in the context of the order.

Under no circumstances may the customer have access to the studies, designs, prototypes and documents carried out by GAGGIONE, which remain the property of the latter.

Unless otherwise expressly agreed in writing, the customer may not dispose of any patents, models or know-how owned by the supplier itself, whether or not resulting from its studies and research with a view to designing and/or producing the ordered part; even less so, disclose them without having expressly acquired ownership, co-ownership or any right to exploitation thereof.

Article 4 – Tools – Moulds and specific equipment
Tools, moulds and specific equipment supplied by the customer must bear separate assembly or use marks and be delivered free of charge to the sites specified by the supplier.

The customer is responsible for ensuring that the tools perfectly comply with the plans and specifications.

GAGGIONE may, at the customer’s request, verify this compliance, the cost of which GAGGIONE will invoice.

In the event that GAGGIONE deems it necessary to make modifications to said tools for the proper execution of the parts, the resulting costs shall be borne by the customer, with the latter’s prior consent.

Tools provided by the customer without GAGGIONE being involved in their design in any way, remain the customer’s full and entire property and therefore, placed under its exclusive responsibility, it insures these tools with a reputable insurance company against all risks of damage that they may cause to persons and property, as well as in the event of total or partial destruction, regardless of its origin.

In the event that the tools received by GAGGIONE do not make it possible to obtain parts that comply with the specifications and pricing conditions initially agreed, a request for revision is made by the latter, taking into account any refusal to modify the tools, the reject rate, cycle time, additional material costs and additional labour costs.

If the customer refuses, without prejudice to any claim for damages, the tools shall be returned to the customer without delay, at its expense and the order shall be cancelled.

A report on the joint statement of acceptance of the tools is issued upon delivery of the tools to one of the sites designated by GAGGIONE and at the time of their collection, at the end of the order.

This procedure is also applicable during the design and manufacture of the industrial tools required to manufacture the customer’s part.

When GAGGIONE is commissioned by the customer to manufacture the tools or have them manufactured, GAGGIONE shall execute it or have it executed.

The cost of production as well as the costs of replacement and repair are paid to it by the customer independently of the price of the parts.

Routine maintenance of the tools is the responsibility of the customer.

The price of the tools produced or had produced does not include the intellectual property of GAGGIONE thereon, i.e. the contribution of its know-how or patents for its study, production and development.

The same applies to any adaptations that GAGGIONE suggests and makes to the tools supplied by the customer, to ensure the proper execution of the parts.

As the tools remain in storage with GAGGIONE after the order has been fulfilled, the customer may only take possession of them after written agreement on the conditions for exploiting the supplier’s intellectual property and after payment of all invoices owed to it, for whatever reason, including those that are not due.

GAGGIONE refrains from using the tools owned by the customer for the benefit of third parties at any time without the customer’s prior express written consent.

At the end of use of the tools, if they remain in storage with the supplier, they shall be kept free of charge for a maximum period of one year from the last parts manufacture.

After this period, if the customer has not requested the return of the tools or if it has not reached an agreement with GAGGIONE for an extension of the storage, the latter is entitled to destroy the tools, after a period of three months of sending a registered letter with acknowledgement of receipt, which has remained without effect.

If the customer takes back its tools before the deadline set in the offer or order accepted without the costs of study and development having been fully eased by GAGGIONE, the customer undertakes to pay compensation fixed at 30% of the price of the tools.

Finally, in the event of special manufacture requiring the acquisition of specific material or equipment, the customer undertakes to take these back at their net book value at the time of termination of the relationship.

This amount is paid at the same time as all invoices owed for the order, whether due or not.

Similarly, all raw materials and specific components acquired by GAGGIONE to carry out the order(s) remaining in stock at the time of termination of the relationship, regardless of the cause, will be delivered and re-invoiced to the customer to the nearest euro, and the customer will immediately pay the payment, together with the invoices due or not yet due related to the order.

Article 5 – Delivery time
Delivery times are indicative and run from the date of order confirmation by GAGGIONE and, in the event the customer supplies industrial equipment, subject to timely delivery thereof to one of the sites designated by GAGGIONE.

In any event, the deadline is considered indicative and any modification to the contractual supply conditions will result in a new deadline being set, in particular in the event of a modification made by the customer to its specifications or to the modelling of the part, without this being an exhaustive list.

These are derived according to stock levels, supply options, manufacturing and transport capacities.

In the event of design and/or study of the part, as well as design and manufacture of the tools, the deadlines are indicative and are extended on account of technical constraints that may arise throughout the design studies, manufacture of the part and/or tools.

These deadlines may also be extended in the event of a shortage of elements used in the manufacture of industrial tools, or in the event of a shortage of supply of elements, in particular peripheral elements for the use of tools.

GAGGIONE undertakes to inform the customer immediately, by any means at its convenience, of this extension of the deadlines and to indicate the duration.

If the overrun is compatible with the customer’s project, a discussion in good faith is held as to the action to be taken in this regard.

With regard to the order for manufacture of the parts, GAGGIONE endeavours to respect the delivery times indicated at the time of acceptance of the open order according to reference logistical deadlines and to execute the orders, except in cases of force majeure or circumstances beyond its control, such as strikes, frost, fire, storms, floods, epidemics, supply difficulties, without this list being exhaustive.

Delays in the delivery of studies of parts and/or tools for the manufacture of parts and/or tools shall not give rise to any penalty or compensation, unless otherwise agreed by the parties.

Any delay in relation to the indicative delivery time initially agreed cannot justify a termination of the order placed by the customer.

Article 6 – Delivery – Packaging – Transport
During the parts manufacturing phase, if the customer does not provide a packaging method, GAGGIONE will propose one or more solutions.

These solutions will be described in the offer.

Risks are transferred upon delivery to the premises of GAGGIONE, by direct delivery of the parts or tools, either to the customer or to the carrier designated by it or, failing that, chosen by the supplier.

The transfer of risks has no influence on the application of the retention of title clause provided for in these general terms and conditions of sale.

It is the responsibility of the customer, in the event of damage to the delivered goods or in the event of missing goods, to make all the necessary detailed reservations on the bill of lading with the carrier.

Any product that has not been the subject of a reservation by registered letter with acknowledgement of receipt within three days of receipt from the carrier, in accordance with article L 133-3 of the French Commercial Code for domestic transport and the CMR Convention in the case of international transport and confirming the total or partial loss or destruction of the goods upon receipt, by adding detailed reservations to the bill of lading, shall not be refunded or replaced by GAGGIONE.

If the buyer does not take delivery on the agreed date, the sale will be cancelled automatically eight days after sending a formal notice by registered letter with acknowledgement of receipt, if it seems appropriate to GAGGIONE, with the consequences of this cancellation being borne by the buyer and the latter remaining liable for the amount of the goods in full.

If the buyer wants special insurance for the transport, it shall be responsible for ordering it from the company of its choice and bears the costs thereof.

GAGGIONE is not responsible for the loss, total or partial destruction of the goods, taken over by the carrier chosen by the customer.

Article 7 – Prices – Payment
Prices are stipulated in euros excluding taxes, or any other currency by express prior agreement of GAGGIONE.

The variation in the exchange rate is assumed by the customer at the time of payment compared to the euro which is the reference currency.

These prices are firm and final, unless they are revised with regard to the feasibility or design studies of the parts and/or tools provided for in articles 3 and 5 of these general terms and conditions of sale.

As regards the manufacturing price of parts in the industrial phase, this is either firm for an agreed period of time or may be revised according to appropriate formulas enclosed with the offer, taking into account variations in material costs and processing costs linked to the order occurring between the date of the contract and the date of contractual delivery, unless a different application date is specified in the order.

In all cases, in particular in the context of open orders, if an event occurs beyond the control of the parties that compromises the general economy of the contract, the parties agree in good faith to negotiate an amendment to the order that restores the original balance.

If the parties fail to agree, GAGGIONE may terminate the contract with 30 days‘ notice.

In the absence of any special provisions, prices are ex works and exclusive of tax.

In addition, tax increases or the creation of new taxes are immediately passed on to current orders when they come into force.

The price of tools may include the cost of sampling, but it does not include, under any circumstances, the cost of test devices or costs caused by modifications due to instructions or requests from the customer.

The prices of all studies of parts and/or tools and peripherals, and of the manufacture of parts, are payable exclusively in euros, unless there is an express derogation agreement between the parties, which will necessarily provide that the exchange rate risk is borne by the customer.

GAGGIONE does not grant any discount or rebate for cash payment.

Invoices are payable at the registered office of GAGGIONE by bank transfer, bill of exchange.

Unless otherwise agreed, invoices are payable within 30 days of the end of the month from the date of shipment, without discount, to the registered office of GAGGIONE.

For tools and peripherals, unless otherwise expressly agreed in writing between the parties, 30% of the payment shall be made when the order is placed, 40% when the first test pieces are delivered and the balance when the initial samples, compliant with the specifications, are presented.

For studies of parts and/or tools, a 50% down payment is made when the order is placed and the balance on delivery of the study, regardless of the result, even if it is impossible to manufacture in the industrial phase.

Any invoice not paid in full by the customer on its due date shall be subject to late payment penalties equal to the interest rate applied by the European Central Bank to its most recent refinancing operation, plus 30 percentage points.

These penalties are automatically payable, without the need for a reminder.

Any delay in payment shall automatically incur a fixed fee for recovery costs of €40 including VAT, at a minimum; in the event that the recovery costs incurred are higher, these shall be re-invoiced to the customer.

In addition to the application of late payment penalties, as referred to in this article, failure to pay an invoice in full or in part shall result in the application, at GAGGIONE’s discretion, of a penalty clause equal to 15% of the sums due, plus default interest.

In the event of a recurrent or prolonged delay in the payment of invoices, of whatever kind, GAGGIONE may cease all deliveries in progress and terminate the contract making all outstanding invoices payable immediately, without prejudice to the application of the retention of title clause provided for herein and authorises it to retain stored industrial tools belonging to the customer, including for invoices not resulting from the use of these tools.

The customer may not defer payment of an invoice due to late delivery.

Similarly, the customer may not cancel an order due to a delay in delivery.

Article 8 – Retention of title clause
Ownership of the products sold by our company can only be transferred after full payment by the customer of the amount of the invoice issued for principal and ancillary costs, including in the event of granting a payment extension.

However, upon delivery, the buyer must assume the risks and ensure their proper storage. It may not modify, incorporate or resell them without the seller’s consent if the invoice is not paid in full.

It is expressly agreed between the parties that this retention of title clause is in accordance with the provisions of articles 2367 to 2372 of the Civil Code and drafted in writing under the terms hereof.

There will be no need to repeat it routinely on commercial documents, when placing orders, invoicing or shipping or delivery notes from the manufacturer.

Article 9 – Confidentiality
In the event that a confidentiality agreement has not been reached between the parties when the study order is placed, with or without design of the part and/or tools, the parties agree that the studies, drawings, models, documents, property of GAGGIONE transmitted to the customer are confidential and the customer undertakes not to disclose them to third parties, including all its staff, including third parties who may have participated in these studies, for a period of five years from the end of the relationship.

The customer undertakes to destroy all documents provided to it by GAGGIONE, and to provide evidence thereof within eight days of the request made by GAGGIONE.

In general, the customer undertakes not to disclose to anyone any information transmitted to it by GAGGIONE.

Article 10 – Responsibilities
The customer assumes full responsibility for the design of the parts according to the industrial result sought and that it alone knows precisely.

It therefore decides on the specifications, which set specifications to be defined in all their aspects, the parts to be produced and the nature and methods of the inspections, controls and tests required for their acceptance.

Acceptance by the customer of proposals aimed at any improvement in the specifications or modification of the drawing of parts or tools may in no way result in a transfer of responsibility, the design remaining, in any case, the exclusive responsibility of the customer.

With regard to its own customer, the customer of GAGGIONE is the sole manufacturer of the part and therefore assumes all the responsibilities inherent in this quality of manufacturer and more particularly with regard to the end consumer.

The customer of GAGGIONE therefore assumes all responsibilities related to the warranty of defective products covered by articles 1245 et seq. of the Civil Code, hidden defects covered by articles 1641 et seq. of the Civil Code, and lack of conformity covered by the Consumer Code.

In all cases and even in the absence of acceptance, the nature and extent of the necessary inspections and tests, the standards and tolerances of any kind must be specified in the plans and specifications that must be attached by the customer to its request for offers and confirmed in the contract agreed between the supplier and the customer.

When the initial samples are presented to the customer, the customer precisely defines the parts which, in its opinion, comply with its specifications and which will then remain the only model of parts to be retained to ensure their compliance with its specifications.

The inspections and tests required by the customer may be carried out at its request by GAGGIONE or by a third-party laboratory or organisation.

This must be specified at the latest at the conclusion of the contract, as well as the nature, scope and cost of these inspections and tests, including during the manufacturing phase.

During the manufacturing phase of the parts, as the principle and methods of non-destructive testing can only be defined depending on the design of the parts, the customer must always specify in its request for offers and its order the inspections it has decided on, the sections of the parts where these must be carried out, in order to determine in particular, the conditions for exercising the guarantee defined in article 14.

In all cases, these inspections and acceptances are carried out within the framework of reference standards, in accordance with the conditions defined by the documents and specifications, as decided by the customer and accepted by GAGGIONE.

If there are no specifications concerning the inspections and tests to be carried out on the parts, GAGGIONE only carries out a simple visual and dimensional inspection requiring only standard inspection equipment.

These inspections are carried out by sampling every 8 hours.

The price of inspections and tests is included in the price of the parts.

This price takes into account the cost of the specific work required to obtain the conditions necessary for the proper performance of these inspections, in particular in the case of non-destructive tests.

In the case of manufacture carried out within the framework of a quality assurance system, this condition must be specified by the customer in its request for offers and in its order, the supplier confirming it in its offer and in its order acceptance, without prejudice to the provisions of the preceding articles.

Article 11 – Guarantee
GAGGIONE undertakes to supply parts that comply with the plans and requirements of the specifications provided by the customer, and during the production phase of parts in accordance with the initial samples validated by the customer.

Under penalty of forfeiture of the right to guarantee, the customer is required to report non-conformities as soon as they are discovered and to explicitly request the replacement or bringing into conformity of the parts in question within the maximum period below following delivery, regardless of the site designated by it:

10 working days for apparent non-conformities,
6 months for other non-conformities, this period being reduced to 1 month for mass production.
The guarantee for hidden defects is excluded in the event that no claim is made within one month of their discovery.

No claim is admissible once these periods have elapsed. Any bringing into compliance of parts undertaken by the customer without the consent of GAGGIONE on its principle and cost shall result in the loss of the right to guarantee and replacement of parts.

The guarantee of GAGGIONE consists, after having respected the deadlines indicated above for receiving notice of hidden or apparent defects or non-conformities and after having checked the actual situation:

in crediting the customer for the value of the parts recognized as not conforming to the plans and requirements of the contractual specifications or to the standard parts accepted by it,
or in replacing them free of charge,
or in making them or having them made compliant, as the case may be.
The parts that GAGGIONE replaces are subject to a credit note, the replacement parts being invoiced at the same price as the replaced parts.

If the parts are to be made compliant, this is carried out in accordance with procedures decided and/or approved by the customer.

GAGGIONE assumes the cost if it undertakes to carry it out or to give its prior consent if the customer decides to carry it out for a price that it has made known.

The replacement or making compliant of parts not related to a failure of any kind whatsoever on the part of GAGGIONE, made by agreement between the supplier and the customer, shall not modify the guarantee scheme.

Parts for which the customer has obtained a credit note, replacement or bringing into compliance by the supplier, unless otherwise agreed, shall be returned to the supplier postage due, the supplier reserving the right to choose the carrier.

GAGGIONE is liable for the guarantee of defective products towards the customer only in the event that this defect results solely from its field of competence, namely the manufacture of the part itself.

The guarantee does not cover under any circumstances:

damage caused by a defective part, during its use, if the designer customer has committed the fault of putting it into service without having carried out or having had carried out all the inspections and tests required by its design, use and the industrial result sought,
the cost of any operations that may be carried out on the parts before they are put into service,
the costs of assembly, disassembly and removal of these parts from circulation by the customer,
under no circumstances shall the supplier be liable to compensate for immaterial or indirect damages, such as operating loss, loss of profit, commercial prejudice.
Article 12 – Intellectual property
The customer declares that the part ordered by it is not the subject of any legal or arbitration proceedings initiated by third parties claiming that it has infringed intellectual property rights covering all concepts of patents, trademarks, designs and models or unfair competition.

The customer declares that it is also not the subject of an interpellation by any means whatsoever, by a third party claiming rights on the product covered by this order, prior to any legal proceedings or not.

In the event that third parties take legal action against the customer for alleged infringement of an intellectual property right or any right of any kind whatsoever on the part, industrial tools or infringement of an exclusive right to market the product, the customer shall guarantee GAGGIONE without limit in time or amount against any judicial sentence that may be imposed on it as a result.

The customer company will also bear all the unrecoverable costs caused by this type of proceedings that GAGGIONE will have to incur, without limitation as to duration, amount or choice of its counsel.

The transfer of the studies of parts and/or tools as well as the manufacture of the parts does not entail the transfer to the customer of the intellectual or industrial property rights of GAGGIONE on them.

The same applies to the studies that GAGGIONE proposes to improve the quality or cost price of parts by amending the specifications.

The customer, if it accepts them, must agree with GAGGIONE on the conditions of their use in the context of the order.

Under no circumstances may the customer have access to GAGGIONE’s studies for itself, nor disclose them without having expressly acquired their intellectual property.

The customer authorises GAGGIONE, unless expressly prohibited in advance in writing, to exhibit in any public event, whether commercial or not, and on its advertising and commercial documents, whatever the medium, the parts that it produces on the customer’s behalf.

Article 13 – Termination
If the customer cancels all or part of its order or postpones the delivery date, without GAGGIONE bearing responsibility for this, the customer is required to compensate GAGGIONE for all costs incurred on the date of receipt of the customer’s notification, without prejudice to any direct and indirect consequences that GAGGIONE may have to bear as a result of this decision.

Article 14 – Invalidity of a clause
If any of the provisions of these general terms and conditions of sale are cancelled in whole or in part, the validity of the remaining provisions shall not be affected.

Article 15 – Choice of forum
Any dispute or litigation arising from this agreement, its annexes and amendments of any kind (negotiation, conclusion of contracts, execution, termination, action in contractual or tortious liability, interpretation) shall be submitted solely to the Commercial Court of BOURG EN BRESSE.

Article 16 – Applicable law
The entire commercial relationship between GAGGIONE and its customer is subject to French law alone.