GENERAL CONDITIONS OF SALES
BJ Industries SAS, Rue Maurice Périn, 08090 Tournes, France

November 2021

ARTICLE 1 – GENERAL CLAUSES

• The general conditions of sales hereafter define the conditions of execution of sales concluded between Bourson Jonet Industries SAS (hereafter called ‘our company ‘or ‘BJ Industries’) and its customers or clients in France and abroad. The present general conditions of sales cancel and replace all previously conditions applicable.
• Unless stipulated otherwise in writing, all our sales are always concluded at the conditions below.
• By ordering from our company or by acceptance of one of our offers our customer adheres to the conditions defined hereinafter unless accepted otherwise by BJ Industries. The customer therefore expressively declares to adhere to the present conditions without reserve. These conditions take precedence over any other document and constitute the sole document governing the commercial relation between the parties, in conformity with article L. 441-1 of the French Code of Commerce. These conditions even apply if the customer may refer to other conditions, namely his general conditions of purchase. These general conditions of sales will also apply to all follow up business between the client and BJ Industries.
• The client will refrain from submitting our company to grossly unbalanced conditions in terms of the respective rights and obligations of the parties nor will he attempting to do so.
• Commercial terms contained in any other of our documents, such as prospectus or catalogue, have only informative or indicative value.
• Our company reserves the right to suspend or cancel sales or deliveries in case of failure of the client to comply with his obligations resulting from these general conditions of sales.
• The cancellation or invalidity of one of the clauses contained in this document does not affect the validity of its other clauses.
• BJ Industries, in its quality of independent supplier, reserves the right to subcontract its contractual obligations partly or entirely, without prior agreement of the customer.
• The client expressively agrees the right to use, for advertising purposes, its quality of being supplier of the client. Our company is hence free to use on its promotional documents the name of the client and any other distinctive sign after having executed the order. We do however refrain in this context from any act susceptible to harm the image or the reputation of the client.

ARTICLE 2 – ORDERS, OFFERS/QUOTES

• We elaborate our products specifically based on needs and criteria defined by our clients. Any intervention of our company is proceeded by a detailed and personalized quote sent to the client. Any execution follows the acceptance of the quote in writing and is accompanied by a down payment, as applicable. Unless stipulated otherwise the quotes are valid 30 (thirty) calendar days after having been issued. Past that period our proposition is deemed nil and void and the client needs to ask for a new quote.
• The customer needs to supply to BJ Industries all information necessary to allow us to quantify our offer and assess the feasibility of the project. The client commits to supply all documents, drawings, photos and technical data agreed between the parties and required for the execution of the contract. The proper execution by our company relies on the precision and quality of the data supplied by the client. BJ Industries takes any information received as true and sincere, it is up to the client to inform our company immediately and in writing about any possible change to previously supplied information. In this context the client remains responsible for the veracity and exactitude of the information transmitted. He keeps our company clear from any legal action that may result from the quality of this information.

MODIFICATION / CANCELLATION

No partial or total cancellation or quantitative or qualitative modification of a confirmed order can be accepted since the equipment supplied by BJ Industries are tailor made for the client. In case of cancellation or modification by the clients, down payment is not restituted to the client without prejudice to any further interest and damage to be claimed.

DOWN PAYMENT

Unless stipulated otherwise the client is liable to pay a down payment of 40% (forty percent) of the order, on the day of its confirmation by BJ Industries. Failing to pay the down payment BJ Industries is entitled to cancel the contract and is released from any obligations regards to the client.

ARTICLE 3 – DELIVERY

3.1     DELAY

3.1.1  The delivery delays given are indicative and informative and depend on the technical possibilities and the availabilities of supplies required to realize the order of the customer.

3.1.2  If our company may exceed the delivery deadlines this will not entitle the client to receive penalties, interest or indemnities save for serious misconduct of BJ Industries.

3.1.3  If our company may exceed the delivery deadlines this does not constitute a valid reason for cancellation of the order save for serious misconduct of BJ Industries.

3.1.4  Unless agreed otherwise the delivery is considered as realized with the transfer of the goods to a transporter on the premises of our company.

3.2     TRANSFER OF RISK

3.2.1  Unless agreed otherwise the risk is transferred with the goods being made available to the client in the premises of our company. The client can verify the number and the quality of the products himself or through a mandated third party.

3.2.2  The goods are transported at the risk and peril of the customer. He is responsible to contract sufficient insurance cover at his cost.

3.3     For goods destined for export, unless stipulated otherwise, we deliver on the basis FCA (Free Carrier) Incoterms 2020 (08090 Tournes).

3.4     RECEPTION

3.4.1  In case of damage to the goods, it is up to the client to issue his reserves to the transporter and on the transport documents in writing. These reserves must be confirmed by registered mail to the transporter within 3 (three) days following the receipt of the goods, copy to be sent to BJ Industries. It is the duty of the client to justify evidence of the damages and anomalies observed.

3.4.2  Without prejudice to the measures to be taken by the customer regards to the transporter as described under 3.4.1. any reclamation regarding visible defaults or missing items needs to be notified to BJ Industries by registered mail within 8 (eight) days following receipt of the goods. Reception of goods by the buyer without reserve within the time frame mentioned equates to acceptance of delivery in line with the order.

3.4.3  In case of reclamation it is up to the client to supply any justification for the reality of the vices, shortfalls or missing items.

3.4.4  Subsequently the client needs to afford BJ Industries the opportunity to proceed to the verification of the vices or missing items claimed and to perform all controls it deems appropriate. Only BJ Industries or a third party mandated by BJ Industries can perform these verifications and controls.

3.4.5  A claimed non-conformity of the delivery or a delay in the delivery date does neither justify refusal to accept the delivery or to return it, neither to apply any deductions on the amount of the related commercial invoice. In case that contractual late delivery penalties have been agreed between the parties, the client has to inform BJ Industries of the delay or the non-conformity susceptible to trigger the application of the said penalties and give the company the opportunity to react to the claim.

3.5     RETURN OF GOODS

Goods cannot be returned by the customer unless having obtained the written consent of BJ Industries. Likewise, parts can only be returned following written consent by our company.

ARTICLE 4 – PRICES

4.1     The prices applied are those formalized in our commercial offer to the client.

4.2     The prices, unless stipulated otherwise, are FCA Tournes and net. VAT is added to these amounts at the rate applicable at the date of issuing the invoice. All extra charges such as transport, insurance, transit and importation taxes in the country of destination as well as the cost of authorizations and certificates are to be borne by the client. The client also reimburses BJ Industries, upon presentation of receipts, any taxes, contributions, customs duties or other fees that our company has acquitted in execution of the contract.

ARTICLE 5 – PAYMENT

5.1        PAYMENT TERMS

Unless agreed otherwise our invoices are payable without deduction within 30 (thirty) days of their date of issuing. No discount is due in case of payment before that date.

Any discount granted by BJ Industries is conditional to the client having respected and being up to date of all his obligations vis a vis BJ Industries and provided that there is no litigation between the parties.

5.2        PENALTIES

Any delay of payment on the agreed term, followed by a written reminder, triggers late payment penalties. For Euro amounts overdue these are calculated based on the European Central Bank Prime Lending rate plus 10 basis points but at least 4% p.a. (four percent per annum), whatever higher plus a fixed payment of 40,- Euro (forty euros). These penalties are without prejudice to any additional legal or other fees incurred in the frame of collection of overdue monies. These penalties are due the day following the payment term marked on the commercial invoice.

5.3        SUSPENSION OF AN ORDER UNDER EXECUTION

Without prejudice to the activation of the clause related to the reserve of property below, any payment incident may justify the suspension of orders under execution until resolution of the incident, the refusal of BJ Industries to accept any new order or to request immediate payment of all other due payment be it for the order under execution or any other order. All extra judicial fees related to the collection of amounts outstanding are to be borne by the client.

5.4        NEW CLIENT, PAYMENT GUARANTIES

For any new client of for any client with financial difficulties BJ Industries reserves the right to demand cash in advance payment. Generally, our company reserves the right, at any moment and depending on its analysis of the risk, to apply a ceiling on the credit extended to its client, to shorten payment terms or to demand payment guarantees.

ARTICLE 6 – OBLIGATIONS OF THE CLIENT

6.1        In case that the design and the construction of the goods requires specific information or documents from the client, he commits to deliver these swiftly and in full. BJ Industries does not take any responsibility for delay or deficiencies that may, even partially, be related to failure of the client to comply with his obligations in this respect.

6.2        If the consent of the client is required at any stage of the production of the goods, he has to provide it within five (5) calendar days following our request with the delay for production being suspended until obtaining of his agreement. BJ Industries declines any responsibility for the agreed delivery date if the client fails to reply.

6.3        BJ Industries cannot be held responsible for any error in a decision made by the client or by a third party mandated by him.

6.4        In case of non-respect of the contractual obligations of the client our company is entitled to suspend execution of the contract after having given formal notice. In this event a delay in the execution of its obligations by our company cannot give right to payment of indemnities.

ARTICLE 7 – RESERVE OF PROPERTY RIGHTS

7.1        The products sold by BJ Industries remain its property until full payment of the purchasing price and any interest, fees and supplements if applicable while the risks are transferred upon delivery. In case of default of payment BJ Industries, without prejudice to its other rights, can request by registered letter the restitution of the goods at the cost of the client, potential legal charges equally at his expense. It is the duty of the client to resist, by any legal means, attempts of third parties to gain control on the products sold namely through judicial seizure. In this case the client must inform our company immediately such as to allow us to preserve our rights.

7.2        During the duration of the reserve of property the customer has to arrange for sufficient insurance cover for the goods against all risks and damages that they may cause or undergo.

In case of damage or partial loss, the client will repair or complete the goods at his cost.

In case of loss of the goods, the payments of the insurance arranged by the client will be for the benefit of BJ Industries by subrogation and regardless of any recourse that our company may intent against the client.

7.3        More generally, the customer commits to inform BJ Industries about any fact susceptible to compromise its property rights.

ARTICLE 8 – WARRANTY

8.1        Unless agreed otherwise our company extends a contractual warranty on the parts and machinery sold at the conditions defined hereafter. If the warranty is not provided, all charges for the interventions described below are at the charge of the customer.

8.2        The warranty is limited to the supply of new replacement parts, without transport and without mounting. It is limited to cases where there is a proven construction or materials default anterior to the delivery and not apparent.

The present warranty is provided for a period of 12 (twelve) months for all new equipment at the exception of pouring ladles and refractory materials. For these items a warranty of 6 (six) months is given. The starting point for the warranty is the date of reception of the products by the client.

No warranty is given to second hand machines or parts which have been demounted and refurbished  by us for the client (welding, machining).

The current warranty does not extend to products delivered to the United States.

8.3        The warranty applies to any default in material or in construction that was not apparent at the delivery of the machines, inherent to the goods delivered and anterior to the sale. Wear parts and consumables are excluded from the warranty.

Are particularly excluded any defects that are subsequent to:

• Ordinary wear and tear on machines;
• Deterioration to the machines related to the client’s negligence, failure to respect recommendations of storage, maintenance or usage of the machines;
• Usage that is not conform to the instructions or to the good practice of the business;
• Utilization of materials that are not appropriate (lubricants, fuels) or not conform to the suppliers’ recommendations;
• Modifications to machines or parts thereof without prior authorization by our company;
• Usage of parts other than those supplied with the machines or supplied by us;
• By components which have been obviously dismantled without prior authorization from our company;
• Accident, negligence, war or terror attack;
• Inclement weather, natural catastrophes, chemical reactions or the like.

8.4        With regards to the warranty BJ Industries cannot be held responsible for possible negligence of our clients with regard to their clients. Finally, the warranty is excluded for any case of Force Majeure as outlined under 9.4. of the general conditions of sales.

8.5        The warranty ceases if the clients or a third party modifies or repairs machinery in an inappropriate manner or if the client does not take measures to reduce the consequences of damage and fails to afford us the opportunity to remedy.

8.6        Whatever the event triggering the warranty, the following costs are formally excluded from it:

• Cost of transport for the parts or transfer of the machines;
• Rental of replacement equipment;
• Labour cost related to repairs carried out by the client;
• External labour hired by the client without written consent of BJ Industries;
• Immobilization of personnel or machines;
• Losses from operations, of margin or any other consequential damages incurred by the client.

8.7. It is the duty of the client to provide proof of the defaults or vices via reports, photos or videos. Once the non-conformity or anomaly has been duly acknowledged by us and the supply of replacement parts decided, we will confirm our intervention in the frame of the warranty to the client.

ARTICLE 9 – RESPONSABITY / FORCE MAJEURE

9.1        Our products are sold with their technical specifications and for the intended use and destination. Any different usage discharges our direct and indirect responsibility. We particularly exclude any damage to people and to property resulting from a use that is not conform or related to their storage and installation in an inappropriate location.

9.2        The client commits to respect his legal obligations. Under no circumstance BJ Industries can be held responsible for deteriorations to the products supplied consecutive to a non-conform usage and in particular for:

• Normal wear and tear;
• Degradations related to negligence or failure of proper surveillance;
• Deteriorations consecutive to disrespect of recommendations for usage and maintenance;
• Damage following abnormal subjection.

9.3       In an event that would engage the responsibility of our company, it is limited to the direct damage caused to people and property. It excludes indirect, immaterial or consequential damage such as financial damage, reputational damage and the like. In any case the amount that BJ Industries could be held to pay in case its responsibility is engaged, is limited to the price of the goods supplied or the ceiling of the insurance attached to it, whatever higher. Both parties acknowledge the validity of this clause reflecting the price paid for the goods and any foreseeable damage, that the client may suffer as a result of fault or our company.

9.4       Both parties are automatically released from their contractual obligations and their responsibility in case of an event of force majeure. Force Majeure is understood as any event rendering impossible or significantly more difficult the execution of an obligation and that as a result of an event that is unforeseeable, external to the parties and outside of their control; 2 (two) of the 3 (three) criteria being sufficient to justify Force Majeure. Events of Force Majeure are, but not limited to war, riot, fire, inundation, virus, epidemic, pandemic, administrative decision to close our or our contractor’s premises or impair their activity (namely related to sanitary reasons or confinement), transport strike, cut in energy supply or telecommunications and any other event that would be qualified as Force Majeure by law or by jurisdiction. Both parties are entitled to terminate ongoing orders in the event of a case of Force Majeure for a duration exceeding one (1) month by giving notice through registered mail. During the period of Force Majeure BJ Industries is not liable to penalties, our invoices for deliveries have to be paid in full along with all expenses incurred in the context of the execution of our contractual obligations.

ARTICLE 10 – INTELLECTUAL PROPERTY / CONFIDENTIALITY

10.1     Unless agreed otherwise the studies, sketches, drawings and documents sent by BJ Industries to his client remain our property. These elements can under no circumstance be used, represented, executed, adapted or communicated to third parties without our written consent. The documents must be returned on simple request and our company reserves all its rights to enforce confidentiality.

10.2     It is expressively prohibited to use the documents put at the disposal of the client to copy or reverse engineer our products.

10.3     The intellectual property contained in the manufacturing drawings put at the disposal of the client for the purpose of local manufacturing of part of the equipment remains with BJ Industries. These drawings can only be used to execute the order for which they have been put at the disposal of the client. It is the duty of the client to ensure the enforcement of these rules on any subcontractor or third party to which he entrusts this execution.

10.4     Any production process information, trade secret specification, report, commercial or technical information exchanged between the parties in the frame of the conclusion or the execution of the contract remains confidential. Each of the parties refrains from disclosing such information to third parties or to use it for any other purposes than those foreseen. This obligation persists beyond the execution of the contract. Both parties take all necessary steps to ensure the respect of these rules by their employees, contractors and partners.

ARTICLE 11 – JURISDICTION AND APPLICABLE LAW

The law applicable to the current conditions is French law.

In case of litigation concerning contracts between BJ Industries and one of its clients, the competent court is the commercial court of Sedan, France. This also applies to appeal or to plurality of defendants.

ARTICLE 12 – RENOUNCIATION

In case that one of the parties renounces to its right stemming from one of the articles in the General Conditions of Sales this does not create a precedent that this party would waive its rights from the same article at a later date.