LIMITED LIABILITY COMPANY
Capital : 328.785.600 FCFA
Registered office : Rue des Pêcheurs, Zone 3 , Abidjan – Treichville
26 BP 916 Abidjan 26 (Côte d’Ivoire)
RCCM : CI-ABJ-2014-B-9572
Trade Register : 1419282 S
SEW EURODRIVE is a one-person limited liability company incorporated under Ivorian laws with a capital of XOF 328,785,600, having its registered office in Abidjan, Commune of Treichville, Zone 3, Rue des Pêcheurs, 26 BP 916 Abidjan 26 (Côte d’Ivoire), registered with the Trade and Personal Property Credit Register of Abidjan under No. CI-ABJ-2015-M-14569, TA No. 1419282 S which purpose, in particular, is the design, production, marketing, installation and commissioning of drive systems as well as the sale of industrial components of drive systems (“Services and Products”).
1. Definitions – Purpose of the General Terms and Conditions for Sale and Services – Modifications – Acceptance and Interpretation:
GCSS: These General Conditions of Sale and Services.
Contract: All documents defining the rights and obligations of the Seller and the Customer: relating to the performance of a Service or the Sale of Products, and in particular:
- These GCSSs; and
- Any other document of the Seller modifying or supplementing these GCSSs (offer or Quotation etc.).
Seller: SEW EURODRIVE, a one-person limited liability company governed by Ivorian laws with a capital of XOF 328,785,600, which registered office is located in Abidjan, Commune of Treichville, Zone 3, Rue des Pêcheurs, 26 BP 916 Abidjan 26 (Côte d’Ivoire), registered with the Trade and Personal Property Credit Register of Abidjan under No. CI-ABJ-2014-B-9572, TA No. 1419282 S.
Customer: Any professional within the meaning of Act No. 2016-412 of June 15, 2016 relating to Consumption.
Products: Any new equipment, spare parts, manufactured and/or sold by the Seller on the basis of the specifications provided by the Customer.
Services: Any work of inspection, repair, maintenance, commissioning or any other assignment provided for in the Contract, performed on any equipment by the Seller at the request of the Customer.
1.2 The GCSSs define the rights and obligations of the Seller and its Customers in the context of the supply and marketing of Services and Products. They shall apply as of right to sales of Products and Services performed by the Seller.
1.3 The Seller reserves the right to modify the GCSSs at any time and recommends that the Customer(s) regularly consult(s) its website www.sew-eurodrive.ci in which any update is systematically reported, in order to be aware of the GCSSs in force.
1.4 Placing an order for Services and Products shall imply acceptance of the GCSSs, which shall prevail over any other conditions, in particular the Customer’s conditions, where applicable.
1.5 Certain terms and expressions used in the GCSSs with an initial capital letter have the meaning ascribed thereto in the GCSSs, without there being any need to distinguish whether the defined term is used in the singular or plural.
Whenever reference is made to a day or an hour in the GCSSs, it shall be a day or an hour in the Republic of Côte d’Ivoire..
2. Orders for Services and Products:
2.1 General terms and conditions for taking orders for Services and Products
The Customer have to send the Seller a written request for Products or Services. Such request shall in particular include the nature of the Product or Service requested, the complete, verified and final specifications (performance to be assured, purpose, use, operating timing, tests, commissioning, etc.) of the Services and Products that it wishes to order, and any other information necessary for the proper performance of the Service or the sale.
The Customer shall ensure and take the responsibility for (i) the adequacy of the Services and Products requested with its operating site and (ii) compliance with the regulations applicable to the site concerned. In any event, the Customer shall be solely responsible for the information communicated to the Seller when ordering or requesting a quote..
Where appropriate and/or at the Customer’s request, the Seller may provide the Customer with all the information necessary to express their needs, without obligation to take additional information or to check the Customer’s specifications. In any event, the Seller shall make its best efforts to provide the Customer, before ordering, with all the possible options, allowing the Customer to choose, in full knowledge of the facts, the combination of components, the assembly, the choice of Services and their characteristics, as specified in the specifications and offer of the Seller prior to any order from the Customer.
2.2 General Information on Services and Products:
The weights, dimensions, powers, prices, performances of the Products and the terms and times for performance of the Services, as well as all information provided by the Seller to the Customer before the issue of a purchase order or a quote, are indicative and cannot give rise to claims or price reductions.
The specificities and final prices of the Services and Products are set in the purchase orders or quotes issued by the Seller following the acceptance of orders.
The plans, studies, technical documents for carrying out the Services are the property of the Seller and they may not be used by the Customer, nor copied, reproduced, transmitted or disclosed to third parties without the prior written authorization of the Seller and without the Customer having expressly acquired ownership of the same.
On the basis of the specifications provided by the Customer, the Seller shall send it an offer including the nature of the Products or Services offered, their price as well as the indicative terms, conditions and times of delivery or performance. Signing the offer implies acceptance of the Seller’s offer by the Customer.
An offer countersigned by the Customer cannot be cancelled or modified unilaterally by the Customer. Otherwise, the price of the Services and Products concerned, all order-related costs, losses and damage suffered by the Seller due to the cancellation or modification made by the Customer, shall be billed to the Customer and immediately payable.
2.4 Stipulations specific to the acceptance of orders placed outside Côte d’Ivoire :
Orders placed by Customers established outside Côte d’Ivoire must be accepted by the legal representative (or any person expressly delegated by it for this purpose) of the Seller in Côte d’Ivoire, after payment of the deposit where appropriate.
Each acceptance of an order from abroad shall be issued subject to the double reservation that the regulations in force in Côte d’Ivoire and in the country of origin of the order do not prohibit import and/or export of the Services and Products that are the subject matter of the order and that the administrative authorizations, approvals or other necessary certifications have been issued to the Seller. To this end, the Customer shall provide the Seller, at the time of the order, with all of the information and administrative documents necessary for the proper performance of the Contract in its country.
3 Inspection of Products and Services by the Customer :
When the offer so provides in accordance with its express request when placing an order, the Customer may check the Services and Products after completion and before delivery (the “Tests”). The Tests can be carried out in the Seller’s workshops or on the installation site of the Products.
When Acceptance Tests are scheduled in the Seller’s workshops, they shall take place according to the regulations and practices in force in Côte d’Ivoire. The Customer shall be informed by the Seller within a time period allowing it reasonably to attend the Acceptance Tests, and an adversary report of the Acceptance Tests shall be signed by the Customer and the Seller at the end of the Tests. Where applicable, the Seller shall remedy forthwith any non-performance or breach noted. At the Customer’s request, a new Test may be carried out once the non-performance has been remedied or the breach corrected. In such a case, the Customer shall bear all the costs related to the second Test.
Installation site Tests shall require a special agreement to be made at the same time as the order. The installation site Test report shall constitute acceptance of the Services and Products and no claim from the Customer shall no longer be admissible. Taking possession shall be equivalent to acceptance, unless written reservation is issued forthwith. Minor defects that do not affect the performance of the Services and Products shall not prevent acceptance.
Failing acceptance during the inspection or Tests under the above conditions, the Customer shall be required to accept the Services and Products upon delivery.
Without prejudice, where applicable, to actions vis-à-vis the shipper or the carrier, any claims relating to apparent defects in the Services and Products, their non-conformity and/or any breach shall be made by any means leaving an evidence in writing of its acceptance by the Seller within three (3) days of the delivery date. The Customer shall provide, in its claim, any justification as to the anomalies reported. It agrees to leave everything to the Seller to find and remedy the same if necessary. It shall refrain from intervening itself or involving a third party on the Products and Services.
In any event, verification of the perfect performance of the Services shall be carried out within fifteen (15) days of delivery. Any non-performance must be reported by any means leaving a written evidence of its receipt by the Seller, within such period. The Seller agrees that it will endeavour to remedy the non-performance noted. In the absence of report, the acceptance shall be final, and no claim shall be made.
4 Delivery of Products – Provision of Services
4.1 The times for delivery of Products and performance of Services are indicative on the day of the offer. They shall start to run from the date of signature of the offer by the Customer, and after payment of the possible deposit or payment of the total amount of the order, according to the arrangements agreed upon with the Customer.
The occurrence of an event of force majeure shall automatically result in the suspension of the order and the postponement of the delivery times for the Products and the performance of the Services without compensation for the Customer. The following in particular shall constitute events of force majeure: labor disputes, strikes by all or part of the Seller’s staff, disruption of communication channels and means of transport, technical incidents, energy restrictions, fires, floods, explosions or any other natural disaster, insurrection, war, impossibility of being supplied, delays in supply, shortage of raw materials on the market, any scrap during the manufacture of Products which could not have been reasonably foreseen, restrictions on imports and exports, on official certification and approval procedures, confiscations or any other governmental measures, whether these events affect the Seller, its subcontractors, its subcontractors’ subcontractors or any third party involved in the manufacture and/or supply of Products and Services.
Except in cases of force majeure, any extension of the delivery period, attributable to the Seller, less than ninety (90) days, may not result in the cancellation of the order or the payment of damage or penalties.
4.2 Any Service provided by the Seller shall be carried out as indicated by the Customer. Any performance of Service and/or delivery of Products can only occur if the Customer is up to date with its payment obligations towards the Seller.
4.3 The Products shall be available according to Incoterm 2010 EXW international standards. They shall be conveyed at the Customer’s expense and risk. Global or partial, including early delivery shall take place by direct delivery to the Customer, by notice of the Products being placed at disposal or by delivery to a shipper or a carrier on the Seller’s premises, as provided in the offer. The packaging shall be invoiced.
In the absence of withdrawal or delivery to a sender or a carrier within the delivery times provided by the Customer, storage, transport and other costs related to the delivery of Products shall be the responsibility of the Customer, in addition to penalties for delay of 0.1% of the price per day of delay, without formal notice.
4.4 The Products shall always be delivered with the notices, instructions and all other documents useful for their use and maintenance by the Customer.
4.5 In the event of delivery of Products to a shipper or a carrier, the Products shall be delivered at the Customer’s expense and risk. In case of damage or missing item, the Customer must make the necessary survey and observation and confirm its reservations by extrajudicial instrument or by registered letter with acknowledgement of receipt to the shipper or the carrier, within three (3) days of the date of receipt.
As of delivery, all risks associated with the Products shall fall on the Customer, including, if applicable, in the case of free shipping.
In the event that the shipper or the carrier is designated by the Seller, the latter acts in the name, on behalf and at the expense of the Customer after the latter’s written request. Unless prior written instruction, renewed on each shipment of Products, the Seller shall not be required to take out any insurance, statement of value or declaration of interest on delivery on behalf of the Customer. In such case, the costs related to the designation of the shipper or the carrier shall be billed to the Customer, and the Seller shall not be responsible either for the mode of transport and payment, or for the tariff applied by the shipper or the carrier.
4.6 Until full payment of the price, the Customer shall keep the Products in perfect condition and insure them on behalf of the Seller. It shall justify the same, at the Seller’s simple request.
4.7 In the event that the offer provides that the installation and commissioning of the Products must be carried out by the Seller on the installation site of the Products, such Services shall only intervene (i) after delivery has been validly carried out and (ii) according to the terms provided in the order form or the estimate.
5 Access to and use of the Seller’s software :
Any access to and use of the Seller’s software by the Customer, not expressly authorized, is prohibited.
Upon delivery, the Seller shall communicate to the Customer a personal and confidential access code, to connect to the Seller’s software under the conditions and restrictions set by the Seller. The Customer shall be solely responsible for the protection of its IT tools, its operation of the software and the interpretation of the calculation results. The Seller shall endeavour to guarantee the Customer the proper operation of its software and reserves the right to modify the same at any time.
The software, data, derivatives and user documents belong to the Seller. The Customer refrains from disclosing them to third parties, whether voluntary or not, free or for a fee. It shall comply with the restrictions of use agreed upon with the Seller.
6 Prices of Services and Products :
The prices of Services and Products shall appear on the estimates or offers drawn up by the Seller and always indicated exclusive of tax (Tax Excluded).
The prices of Services and Products may, where necessary, be revised after the setting of offers or quotes to take into account (i) requests for modifications or new specifications from the Customer duly justified and accepted by the Seller, or (ii) production requirements.
7 Billing :
7.1 General provisions :
Any delivery of Products and/or performance of a Service shall give rise to the issue of an invoice established by the Seller.
Invoices shall be payable at the Seller’s registered office, according to the terms agreed upon with the Customer and generally indicated in the order form or the estimate.
The Seller does not grant any discount for early payment.
When payments are made by drafts, such drafts must be accepted within seven (7) days and their maturity shall not exceed 1 (one) month.
7.2 Customer(s) benefiting from a Credit (current account)
The Seller may grant, within the limit of an amount that it freely fixes, payment terms and facilities to the Customer (the “Credit”). In this case, the Seller and the Customer must establish in writing the terms and conditions applicable to the Credit and its use..
In the event of deterioration of the Customer’s Credit or non-compliance by the Customer with the terms and conditions of the Credit, the Seller may suspend or cancel current orders, and require a payment guarantee or the collection of the price before execution of any new or current order.
Any deterioration of the Customer’s Credit justifies the requirement for guarantees, cash payment or certified draft(s) with collection before the execution of orders or the due date of invoices.
In the event that the Credit provides that the Customer is entitled to an “overdraft”, the Seller may at any time set a limit on the Customer’s overdraft, applicable to any current order. If the Customer does not satisfy the same, the Seller may cancel all or part of the orders or declare all of its claims against the Customer due and payable.
7.3 Late payment(s) – outstanding payments
In the event of late payment which is not remedied within thirty (30) Days from the due date of the invoice or non-payment of invoice(s), the Seller shall suspend the execution of orders, without prejudice to any other course of action.
Any delay in payment of more than sixty (60) days or outstanding payment, as from the due date of the invoice, shall automatically give rise to the payment of penalties at the legal interest rate increased by ten percent (10%).
Failing payment within 48 hours after a summons to pay sent to the Customer and remained ineffective, the sale may be rescinded on the initiative of the Seller, which may require the return of Services and Products, without prejudice to any damages.
The discharge may affect the order in question, as well as any other order delivered or not, whether or not its payment is due. Failure to return a draft shall mean refusal to pay.
The non-payment of an invoice shall result in all other outstanding invoices falling due immediately without any prior formal demand, as well as any significant change affecting the Customer’s personality or its Credit, thus in the event of sale, transfer, pledging or equity contribution, transfer of shares or shareholding, pledge of production assets, merger, demerger, change in the officers, the Seller may request the immediate payment of all the invoices of the Customer.
In all cases, the sums due for any reason will become immediately payable if the Seller does not opt for the outright cancellation of orders or for their prepayment, the Customer will have to bear the losses suffered and the costs incurred by any procedure for the purpose of bill collection.
Payment cannot be suspended or offset without the prior written consent of the Seller. Any payment shall first be deducted from interest, penalties, penalty clause, then from the sums of which the payment is the oldest. The delay or non-payment cannot be justified a posteriori by a claim. The deposits received before the cancellation of the order shall be charged to the price, damages, survey, commercial, model, machining, supply, etc. costs. owed by the Customer, i.e. at least the price of the Products or Services ordered. The balance shall be due and payable immediately.
8. Retention of title
The ownership of the Services and Products remains with the Seller until full payment has been received. It can be easily individualized and removable, which is recognized and accepted by the Customer. This right of ownership includes the Customer’s improvements and additions.
The Customer shall notify the Seller, by any means leaving a written record of its receipt, of any claim, damage or third-party measure concerning the Services and Products the price of which is not paid in full.
As long as it has not acquired ownership of the same, the Customer agrees not to give the Services and Products as security or guarantee and undertakes not to carry out any manipulation or transaction on the Services and Products likely to prejudicially affect the Seller.
Unless prior written authorization by the Seller, the Customer shall refrain from assigning the Services and Products before full payment of the price. If the Seller agrees to resell the Services and Products, the Customer must promptly inform it of the exact identity of the sub-purchaser and let the sub-purchaser know, at the latest at the time of conclusion of the sales contract binding them, the Seller’s retention of title.
In the event of resale, the Customer shall (i) already declare to assign to the Seller the claim arising from the sale to a sub-purchaser, (ii) authorize the Seller to collect its claim on the price due to it by the sub-purchaser and (iii) undertake to sign any instrument and make any formalities necessary for the validity and application of its declaration and commitment.
In the event that the Seller has granted a Credit, accompanied by a current account, to the Customer, the debit balance of said current account shall represent the price due by the Customer to the Seller, so that the Services and Products held by the Customer at the time of the closure of the current account may be claimed by the Seller, which will be deemed to be its owner. The claim of ownership by the Seller will be made by any written means leaving a written record of its receipt and enjoining the Customer to give possession of the Services and Products claimed to the Seller. In the absence of return by the Customer within fifteen (15) days, the Seller may request the return under penalty. The claim shall not constitute a discharge or termination of the contract. It can be exercised by the Seller, in the event of the Customer’s non-compliance with any of its obligations. All costs and fees of the claim shall be borne by the Customer.
9. Guarantees :
Any Product incorporated into the Services shall be checked before its installation and commissioning. The Products are guaranteed for one (1) year, including parts and labour, as from delivery and subject to expertise in the Seller’s workshops or, on site, by a competent team designated by the Seller and confirming the manufacturing defect.
The Seller’s warranty shall be limited to the repair or replacement of the Product recognized as defective by the Seller. Any defective Product may be returned as is to the Seller by the Customer, at its expense and risk, after the express agreement of the Seller.
Any replaced Product shall remain the property of the Seller until the Customer has paid the price. Repairing a Product during the warranty period does not extend the warranty period. A new warranty is not due on the part repaired during the validity of the warranty.
The Seller’s warranty shall be excluded in the event of (i) abnormal use of the Products or non-compliance with the Seller’s instructions and recommendations, (ii) operation of the Products for more than eight (8) consecutive hours per day, (iii) intervention by the Customer or a third party on the Products, (iv) non-compliance with the good practice or the instructions appearing on the various documents of the Seller, (v) normal wear and tear of the Products, (vi) willful or unintentional deterioration, (vii) accident or any manipulation whatsoever, (viii) failure by the Customer to monitor, maintain, lubricate or store it properly.
10. Liability of the Seller :
The liability of the Seller for total or partial non-execution of an order shall be subject to (i) the proof by the Customer of a default of the Seller and (ii) the sending by the Customer to the Seller of a summons to execute the order that remained unsatisfied by the Seller within the period indicated in the summons without such period being less than fifteen (15) days. The Seller undertakes to endeavour to remedy any non-performance recognized by it.
No penalty, default interest or compensation shall be due to the Customer in the event that the Seller has remedied the non-performance. Any damage to Services and Products, any direct or indirect consequential damage, any loss of profits, any damage suffered by the Customer or a third party shall be excluded from the guarantee. The Customer is required to exercise due diligence to reduce its damage which will remain at its sole expense.
The Customer renounces any action for the cancellation or discharge of the sale of the Products. It may in no case assert its own negligence to make any claim against the Seller and request any remedy or reduction in the Prices.
Given the nature of the Services, the liability of the Seller cannot be sought for total or partial non-execution of orders resulting (i) from incomplete and/or erroneous specifications by the Customer, (ii) from unintended use of the Products or not complying with the specifications, or (iii) from the choice of Products. The same shall apply in the event of third-party intervention, dismantling and reassembly of the Products, operation or disposition not expressly brought to the attention of the Seller. Likewise, any liability of the Seller shall be excluded in the event of use not complying with the prescriptions contained in the specific documentation of the Products given to the Customer upon delivery.
The Customer agrees that under no circumstances, the Products may be used for the transportation of people and that the Seller’s liability cannot be sought if this were nevertheless the case.
The Seller’s liability under the conditions provided for in this paragraph can only be called into question within fifteen (15) days of receipt of the Products by the Customer. Beyond that, only the guarantee provided for in the previous paragraph may be applicable for the Products included in the Service, excluding any compensation whatsoever.
Any repair or replacement of Products made by the Seller outside the warranty periods set out in paragraphs 9 and 10 above shall be invoiced to the Customer and shall benefit from a one-year (1) warranty limited only to Products which have given rise to intervention. Such guarantee is itself subject to the conditions laid down for the guarantee in paragraph 9.
12. Use of Seller’s Products:
The Customer certifies that it shall use the Seller’s Products exclusively emanating from the official network of SEW EURODRIVE Group and undertakes not to acquire or operate products that may constitute counterfeits or forgeries of the SEW EURODRIVE Group Products under penalty of liability, termination of relations with the Seller and refusal of any guarantee..
13. Applicable law – Settlement of disputes:
The GCSSs are governed, for their validity, their interpretation and their execution, by Ivorian law.
In the event of a dispute between the Seller and the Customer arising out of the validity, interpretation or performance of the GCSSs, they agree to discuss and seek an amicable settlement within thirty (30) calendar days of notification by a party to the other, of the subject matter of the dispute that has arisen or is likely to arise. Such period may be extended by an equal amount by mutual agreement.
In the absence of an amicable settlement within the above-mentioned period, any dispute arising from the validity, interpretation, execution or non-execution hereof shall be brought before the Commercial Court of Abidjan, whatever the method of settlement ; in the event of introduction of third parties, of multiple defendants and in the event of interim measures.
Abidjan, this 31st day of January, 2020.