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GENERAL TERMS AND CONDITIONS OF SALES – WEBSHOP – [version 25/04/2022]

 

  1. General Information

1.1 Unless otherwise agreed in writing, the following general terms and condition of sales (hereinafter referred to as the “General T&C Webshop”) apply exclusively to any present or future sales (hereinafter referred to as the “Sales”) of materials and Products of any kind (hereinafter referred to as the “Products”) through  the Webshop of Facil (hereinafter referred to as the “Webshop”) to be supplied to the buyer (Facil and the buyer are hereinafter jointly referred to as the “Parties”).

1.2 The standard terms of business of the buyer and other customer specific requirements (hereinafter uniformly referred to as the “Client”) shall not apply. The Client acknowledges that his order through the Webshop (hereinafter referred to as the “Order” ) entails:

(i) an express waiver by the Client of its own standard terms of business, and

(ii) an express acceptance of these General T&C Webshop.

1.3 These General T&C Webshop apply to all Orders.

1.4 These General T&C Webshop apply for every individually operating company belonging to the FACIL Group of companies (including but not limited to FACIL EUROPE bv, FACIL NORTH AMERICA Inc., FACIL Asia Holding Ltd., Flexalloy Mexico Company LLC, Facil India Private Limited and their branches).

 

  1. Registration and usage

2.1 Both registration and usage of the Webshop are free of charge. Users must first register before gaining access the Webshop. During the registration process, users are obliged to enter truthful information.

2.2 Facil is, at its discretion, allowed to refuse the registration of any entity without any obligation to justify its decision.

2.3 The Webshop is only open for business-to-business transactions. Facil will refuse the registration and usage of the Webshop for ultimate consumers.

2.4 Registration of legal entities should always be performed by a person who has the power to duly represent and bind the legal entity. Facil is allowed to assume that the person registering the legal entity has the necessary power of representation and is to be regarded as the contact person.

2.5 Users of the Webshop should ensure that they can be reached using the e-mail address they registered with and that they can access messages sent to this e-mail address.

2.6 The Client must inform Facil immediately of any subsequent changes to the relevant data related to the registration.

2.7 The user of the Webshop is solely liable to protect the access data linked to the registration. Users are liable for all activities performed using the user account they have set up.

 

  1. Ordering – Contract

3.1 Orders placed by a Client will be executed under the General T&C Webshop as agreed between the Parties.

3.2 All offers made by Facil within the Webshop are subject to change and non-binding. In the event of errors in terms of product specifications or prices stated, Facil reserves the right to make corrections to these.  All specifications, Products, descriptions and prices of the Products are subject to change at any time without notice.

3.3 The order confirmation is meant for information purposes only and shall not constitute an acceptance of the Order by Facil. Facil reserves the right to refuse or change any Order. If Facil wishes to propose a modification to the Order, or the Products ordered by the Client turn out to be unavailable, Facil will use its best efforts to notify the Client as soon as possible.

3.4 A minimum Order value is applicable.  If an Order does not reach this value, the customer will be charged an administration fee.

3.5 As long as an Order is not confirmed, prices are subject to change and non-binding.

3.6 Any modification to the contract requested by the Client is conditional upon Facil’s express acceptance.

 

  1. Prices

4.1 Insofar as the quotation does not provide any information to the contrary, all prices stated by Facil are stated as net amounts, excluding taxes and any other charges. Packaging and transport costs are excluded.

4.2 If applicable, Facil will specify packaging and transport costs in the order confirmation.

4.3 The Client shall pay for all rights, taxes and other official charges, as well as the duties and expenses for customs formalities for export and import of Products and, if necessary, transit abroad.

 

 

  1. Delivery/Invoicing – Transport – Warranty – Inspection and Acceptance of Products

5.1 Choice of location

Depending on the location of the product facility, stock, location of the Client and any other relevant consideration Facil will ship and invoice an Order from any operational branch belonging to the FACIL Group of companies (including but not limited to FACIL EUROPE bv, FACIL NORTH AMERICA Inc., FACIL Asia Holding Ltd., Flexalloy Mexico Company LLC, Facil India Private Limited and their branches). Therefore, the Client accepts that prices and transport costs can differ depending upon the operating company delivering the Product(s).

 

5.2 Delivery

5.2.1 Delivery dates shall be observed to the extent possible. The agreed delivery timeframe is specified in the Order confirmation. However, timeframes stipulated are given for information purposes only and can be reconsidered or extended if circumstances that are beyond Facil’s control occur or if Facil, the Client or any third party (especially Facil’s sub-contractors) are subject to obstacles or unpredictable events which are not avoidable (esp. – but not limited to – force majeure, war, international tensions, riots, lack of commodities, breakdowns, epidemics, strikes etc.).

5.2.2 Facil delivers the Products “EXW” (Incoterms 2020), unless expressly agreed otherwise. Title and risk of loss for the Products shall pass when made available to the Client.

5.2.2 In no circumstance shall a delay of delivery be deemed to justify the termination or cancellation of an Order.

5.2.3 Facil disclaims any and all liability for any damages due to late or short delivery or failure of delivery.

5.2.4 All risks of loss or damage to the Products are assumed by the Client from the moment they are placed at its disposal by Facil at the agreed upon place of delivery in the Order. From that moment on the Client will bear the risks of delay, loss or damage.

 

5.3 Warranty – Checking of the Products and acceptance

5.3.1 All of Facil’s warranties shall be subject to Client’s immediate inspection of the Products supplied upon delivery according to the Order. The Client must, at its expense and under its responsibility, check or make check the Products conformity. The Client shall be presumed to have taken delivery of the Products within two (2) days of the delivery date. Thereafter, the Client shall be presumed to have accepted the Products with all possible defects apparent therein.

5.3.2 All Client’s complaints and Facil’s warranties shall be subject to the statutory periods of limitation. Any complaint shall be effected by filling in the contact form in the Webshop. Upon receiving the complaint Facil shall be entitled to examine the defect or damage claimed through its own employees or any expert appointed at Facil’s discretion.

5.3.3 Any Products returned by the Client must be addressed to Facil’s entity that delivered the Products. The Client shall bear all risks and costs concerning the return of any Products until it finally arrives in Facil’s entity. Facil will not accept the return of any Product without its prior written authorization.

5.3.4 Any claimed defect must be established by evidence. If the Products are found to be defective, Facil reserves the right to cure said defect(s) by any one of the three following modes: (a) by replacing the defective Products in the Client’s premises; (b) by repairing the defective Products; or (c) by refunding the price invoiced and paid by the Client for the defective Products. If mode (a) or (c) is chosen, the replaced or refunded Products will, at Facil’s discretion, again become its property.

5.3.5 Facil shall not be required to provide any documentation on problem solving or traceability concerning defective Products to the Client.

5.3.6 Products ordered through the Webshop are not eligible to include PPAP and or requalification documentation.

5.3.7 All warranty rights shall become time-barred within 12 months after the delivery of an Order.

5.3.8 All data submitted to the Client or displayed on the Webshop, including but not limited to technical data, drawings, illustrations, … etc. are meant for information purposes only and shall be non-binding. This data does not relieve the Client from its obligation to check the Products for their suitability for the intended purpose. The data shall only become binding if confirmed expressly by Facil.

 

5.4 Handling and storage, traceability

5.4.1 The Client shall respect the recommendations relating to storage and handling.

5.4.2 The Client shall preserve the traceability of the Products at all times and shall make sure every Product batch will be specifically identified and held separately from other Product batches. The Client shall bear the responsibility to ensure Facil can be traced as the supplier of the Products.

5.4.3 The Client shall make sure to comply with any kind of regulation concerning the traceability of the Products.

5.4.4 Unless otherwise specified in the commercial agreements between Facil and the Client, for delivered PPM levels, Facil refers to the DEUTSCHER SCHRAUBENVERBAND guidelines. PPM level takes into consideration the monthly volume of all delivered parts (all references).

 

  1. Conditions of use – Security provisions

6.1 The Client shall exclusively be responsible for all application and use of the Products supplied. Facil shall especially not be responsible for engineering, technical advice or similar services, unless such services are provided for in an explicit written agreement signed by both parties.

6.2 The Client is responsible for ensuring that the product is used in normal and foreseeable conditions of use as well as with industry practice and in accordance with safety and environmental legislation in effect at the place of use. The Client shall be responsible for ascertaining and notifying Facil at the latest when submitting his Order of any specific regulations and standards for destined application. The adherence to the general and local security provisions as well as the use of the Products supplied shall be Client’s sole obligation. The Client shall remain exclusively responsible for compliance with such specific regulations and standards for any application.

 

  1. Force majeure

7.1 The occurrence of an event of force majeure will lead to the suspension of Facil’s obligations with regard to the Client. Facil will inform the Client as soon as possible of the occurrence of a case of force majeure and Facil will endeavor to remedy the situation as soon as reasonably possible. It is expressly agreed that the Parties shall meet in order to agree to the postponement of Facil’s obligations which are affected by the event of force majeure. Pursuant to this contract, it is expressly agreed that events of force majeure shall be, in particular but not limited to: the occurrence of incidents, as upheld by effective legislation or by case law, but also war, strikes or blocking labor unrest at the manufacturer or supplier of the goods, paralyzing bad weather, blocking road accidents or incidents, fires, shortage of raw materials, pandemics or generally, the fact, in spite of all due care taken, of not being able to make the delivery in accordance with the instalment dates as a result of a ban on, or non-receipt, of carriage authorizations by the relevant authorities for all the plants concerned by the issuance.

In case of a persisting or non – repairable force majeure, Facil shall be entitled to dissolute the sales contract. Facil disclaims any and all liability for any damages due to a situation of force majeure.

 

  1. Payment

8.1 Terms of payment

8.1.1 Prepayment: unless otherwise expressly agreed in a specific agreement, prepayment is made upon order placement,  net and without discount.

8.1.2: Payment by invoice: payment by invoice shall only apply insofar as expressly accepted in writing by Facil.

8.2 Delay of payment

8.2.1 Non-payment of a fraction of the price when due, or non-observance of any payment’s due date, shall trigger Facil’s right to demand immediate payment of all sums then still due, (bills of exchange included), and to retain Products held by Facil as well as any other items in Facil’s custody, until full payment of all sums due.

8.2.2 All past due invoices shall bear interest at the lesser of the rate of 1% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.  The Client shall reimburse Facil for all costs incurred in collecting any late payments and interest (including reasonable attorneys’ fees and costs).  In addition, the Client shall owe to Facil an administration fee equal to the greater of 10% of the invoice total and EUR 150; provided that Facil does not in any way waive any right to additional damages available to Facil.

8.2.3 Notwithstanding resort to the sanction provided for in 8.2.2, non-payment of an invoice when due, whether partial or in full and for whatever reason, entitles Facil to cease delivering Products and/or to stop all work, without notice or other formality. Such a decision, a matter of entitlement attributable to the Client, entails the right retroactively to cancel existing contracts, without affecting Facil’s right to compensation for termination, or possible damages together with interest.

8.3 Compensation of the payments

The Client undertakes not to engage into any illicit debiting or crediting or not to invoice Facil for any amount that has not been expressly acknowledged by the latter as being its responsibility. Any automatic debit shall constitute an outstanding payment and shall give rise to the application of the provisions of Article 8.2 with respect to delay in payments.

8.4 Reservation of title

8.4.1 The transfer of title to delivered Products shall occur only after Facil receives full payment of the price and auxiliary charges. This reservation of title does not prevent transfer to the Client, upon the Products’ delivery, of all risks of loss and deterioration, as well as of damage they might occasion.

8.4.2 If the Client fails to make a payment when due, Facil may reclaim specific Products, or all Products of the same kind and quality held by the Client. In case Facil repossesses said Products, the Client will be credited with their price after deducting, on one hand, the costs of repossession and, on the other, their possible loss of value between the Contract and repossession dates.

8.4.3 Before acquiring title to the Products, the Client may neither grant any security interest therein to a third party, nor transform or resell them, without the Facil’s prior written consent.

8.4.4 The transfer of risks being effective as of delivery, the Client shall assist Facil in any action the latter may be required to take in order to protect its rights of ownership. The Client commits itself to ensuring the Products as of their delivery, with Facil as beneficiary, against all risks that they might encounter or cause. The Client commits itself, under all circumstances, to maintaining delivered Products in such a manner as to avoid any confusion about their ownership by Facil.

 

  1. Cancellation – Termination

9.1 A simple delay in delivery, non-observance of a procedure, or any cause beyond Facil’s reasonable control, such as one attributable to a third party, which makes it impossible for Facil to fulfill its contractual obligations, shall be deemed to justify neither a request for any sort of compensation, nor the cancellation or termination of all or part of an Order by the Client.

9.2 Facil shall have the right to cancel the Order if the Client is in bankruptcy or liquidation proceedings, or in the event a significant change occurs in the Client’s legal circumstances undermining its solvency. However, cancellation of an Order shall not reduce the Client’s debts to Facil.

9.3 Client’s complaints with regard to Product quality and quantity etc. shall not give the Client the right to cancel the balance of any Order.

9.4 Moreover, whatever may be the cause of termination of one or more Order(s), whether or not attributable to Facil, the Client is obligated to take delivery and pay for Products manufactured and stored, or in the course of manufacture, as of the date of termination and, upon presentation of supporting documents, without delay, to refund, compensate and indemnify Facil for any sums the latter is eventually required to pay its suppliers or subcontractors for any such termination. Any payment received by Facil for any such terminated Order, such as an installment, remains Facil’s property and may under no circumstance be restituted to the Client or viewed as compensation by the latter.

 

  1. Responsibility – Liability

10.1 Definition of Facil’s liability

10.1.1 The Client, as a professional in his field of competency, shall be able to define with precision the specifications according to his own industrial data or data of his clients and consequently shall be able to appreciate that the Product fully corresponds to its expectations.

If Facil comments on questions regarding construction and / or assembly, this opinion is based solely on the details provided to us by the Client. Facil’s descriptions and other information are based upon theoretical considerations or research results which are acquired under laboratory conditions. They shall be checked under field-experienced conditions by the Client.

10.1.2 Facil shall also not be liable:

– For defects resulting from materials furnished by the Client.

– For defects resulting from design carried out or recommended by the Client or definition of components of the Products. The Client shall, in any event, bear the entire responsibility for the industrial result of the Products, including responsibility for errors or omissions in technical specifications, criteria or standards; unless expressly agreed otherwise in writing, all responsibility for choice of Products is incumbent upon the Client.

– For defects that result partially or completely from all defects attributable to normal wear and tear, faulty use, defective maintenance, incorrect handling, over-exertion and intervention by third parties and damages or accidents attributable to the Client or to a third Party.

– In the case of abnormal or atypical use or use that is inconsistent with the product’s intended use, industry practice, or Facil’s advice or recommendations.

– For defects or damages resulting from storage or use of Products by the Client or its customers under conditions either anomalous or not in conformity with accepted norms.

– In case of loss of traceability of the Product by the Client.

– For the inaccuracy of any documents supporting Client’s orders, especially drawings, material specifications and documents of similar nature.

 

10.2 Limitation of Facil’s liability

10.2.1 Facil’s liability shall be limited to direct material damages caused to the Client that result from fault attributable to Facil in implementing the Contract. In no case may Facil be held responsible for indirect or consequential damage ultimately suffered by the Client, including but not limited to loss of use, loss of product, loss of profit or business interruption. This means that under no circumstance Facil will be required to compensate immaterial or indirect damages, included but not limited to: losses in productivity, losses of chance, losses of benefit, commercial damage, shortfall.

Facil shall not be liable for damages resulting from the Client’s use of technical documents, information or data from the Client or imposed by the latter.

10.2.3 Facil’s civil liability, all causes taken together except for personal injuries and for gross misconduct liability, is limited to the amount of the selling price of the batch to which belongs the non-conform Products that caused the material damages.

10.2.4 Facil shall not be required to compensate harmful consequences due to the faults of the Client or of third parties in connection with the implementation of the contract.

The Client guarantees waivers of remedy by its issuers or third parties in a contractual relationship whether, against Facil or its insurers that is above and beyond the aforementioned limits and exclusions.

10.2.5 This limitation of liability also applies to Facil’s contractual and statutory liability with regard to damages, based upon activities or defaults by its statutory representatives, staff and agents as well as to the personal contractual and statutory liability of these persons.

 

10.3 Disclaimer external links

10.3.1 The Webshop may contain links to third-party websites (hereinafter referred to as “External Links”) that are not under Facil’s control. Facil makes no claim and accepts no responsibility regarding the quality, nature or reliability of the External Links that are accessible by hyperlinks from the Webshop or link to the Webshop. The inclusion of any link does not imply any endorsement by Facil of External Links or any association with the operators of such External Links.

 

10.4 Exclusion of IATF

10.4.1 IATF 16949 certification does not apply to the Products supplied by Facil under these General T&C Webshop.

 

  1. Security provisions

11.1 The adherence to the general and local security provisions as well as the instruction of Client’s staff regarding the use of the Products supplied shall be the Client’s sole obligation.

11.2 The Client shall be responsible for ascertaining and notifying Facil at the latest when submitting his order of any specific regulations and standards for destined application. However, the Client shall remain exclusively responsible for compliance with such specific regulations and standards for any application.

 

  1. Confidentiality and Intellectual property

12.1 All documents provided by Facil such as offers, quality plans, schedule of conditions, certificates of control and conformity, software, qualification dossiers, statistical analysis and all documents produced by Facil remain Facil’s intellectual property and may not be transmitted to, or otherwise shared with, third parties without Facil’s prior written consent.

12.2 The Client shall indemnify and hold Facil harmless against all claims of third parties concerning intellectual property rights to components the Client entrusts to Facil, or that Facil uses at the Client’s request, within the framework of the Order, and commits itself to indemnifying Facil and taking responsibility for all consequences of such claims, including legal expenses and financial judgments. These guarantees, and their resulting obligations upon the Client, will continue in effect as long as the delivered Products continue to be used commercially or industrially.

12.3 Unless expressly agreed otherwise by the Parties, Facil shall have and retain exclusive intellectual property rights to all “Results”, (as hereafter defined), obtained by Facil prior to as well as during the execution of the Order. The term “Results” includes, without limitation, results of studies, developments, and services obtained or provided in accordance with execution of the Order, such as all inventions, documents, software, materials (ingots, samples, outlines, prototypes, etc.), information, data and specific know-how, whether or not technical. The Client commits itself to taking all measures needed to prevent infringement, whether directly or by third parties, of Facil’s intellectual property rights in said Results.

12.4 Unless expressly agreed otherwise by the Parties, delivery of Products shall not be deemed to convey to the Client any license to Facil’s intellectual property rights.

12.5 Unless expressly agreed otherwise by the Parties, neither the receipt of payments by Facil, nor the delivery of tools, or prototypes, or information relating thereto, by Facil to the Client, shall be deemed to affect Facil’s rights of intellectual property. In this regard, Facil shall not be deemed to have relinquished its right to bring counterfeiting and/or infringement proceedings against the Client, its customers and its subcontractors, for keeping, repairing, or using tools, prototypes and information concerning the Products delivered by Facil to the Client in accordance with the Order.

 

  1. Amicable attempt to resolute disputes

The Parties undertake to attempt to resolve their disputes amicably prior to refer to the court with jurisdiction.

In the event of a technical dispute concerning Facil’s Products or work and the Parties fail to reach an amicable agreement amongst them, the Parties agree to ask a first and technical opinion by appointing an independent technical expert, who will examine the technical dispute and will give a non-binding advice to the Parties.

 

  1. Applicable law – Attribution of jurisdiction

In the absence of amicable agreement, it is expressly agreed that any dispute relating to the contract shall be subjected to the law of the statutory seat of the operational branch delivering and/or invoicing the Order. The application of the conflict of laws IPR provisions and the UN sales law is excluded.

Any dispute shall be brought before the competent jurisdictions at the place of its operational branch delivering and/or invoicing the Order. Facil only shall also be entitled to choose the jurisdiction at the Client’s place.

In the event of deviations between the English version of these terms and conditions and any version in another language, the English text prevails.

 

  1. Severability clause

In the event that any clause of these General T&C Webshop or other elements of the contract should be or become invalid, this shall not affect the validity of the remaining clauses.

If any provision of an agreement or these conditions turns out to be void or otherwise unenforceable, the Parties will enter into good faith negotiations to replace such provision with an valid and enforceable provision that comes as close as possible to the original intent of such provision.

 

  1. Export Control Compliance

16.1 The Client shall comply with all legislation and regulations related to the regulation of imports, exports, re-exports, transfers, releases, shipments, transmissions or trading embargoes or other trading restrictions related to the provision of receipt of goods, technology, software or services.

16.2 The Client shall refrain from reselling, exporting or transferring any Product or item obtained through the Webshop to areas/territories in violation of US, UK or EU export controls, economic and trade sanctions, including selling or exporting items without the necessary licenses or in violation of license conditions. The Client shall refrain from reselling, exporting or transferring any Product or item obtained through the Webshop in violation of the US Foreign Corrupt Practices ACT (FCPA).

16.3 Facil shall have the right to refuse to accept an Order, or to cancel an Order:

(i) should Facil reasonably suspect a violation of Article 16.1 or 16.2 by the Client; or

(ii) should any government authority fail to approve or subsequently withdraw any licenses, permissions, authorisations, certifications, consents or permits required under Export Control Laws and which are necessary for the performance of the Order.