MPO France SAS’ GENERAL TERMS AND CONDITIONS
I - GENERAL POINTS
In these general terms and conditions, the term Customer refers to a customer of MPO France SAS, the term MLink refers to the company MPO France, the term "Parties" refers to MLink and the Customer, the term “Service” refers to the services which are to be carried out by MLink for the Customer such as: advice, layout, mastering, pressing, paper/cardboard printing, packaging, logistics, the term“Product” refers to the Media and/or their packaging which are delivered to the Customer after the Serviced have been carried out, the term “Recordable Medium” refers to any medium, such as for example: CD, DVD, Blu-ray, vinyl, USB stick… supplied by MLink to the Customer in the framework of the performance of the Services.
II -PURPOSE OF THE CONTRACT
These general terms and conditions define the conditions for supplying Media and carrying out Services. These general terms and conditions are an integral part of any order placed by the Customer or any contract entered into by MLink with a Customer. These general terms and conditions are systematically given to the Customer and the Customer declares that it has read, understood and accepted them before placing any order or entering into any contract. Consequently, the fact of the Customer signing a purchase order or entering into a contract shall constitute without reservations acceptance of these general terms and conditions and any contrary condition or notices with regard to the orders or even the general purchasing terms and conditions cannot, except for the prior and written agreement of MLink, prevail against the application of these general terms and conditions.
A contract shall definitively be entered into by the Parties:
- as soon as the Customer sends an acknowledgement of receipt for the order or,
- as soon as a quote has been accepted without reservations (MLink proposal) or,
- as soon as a contract has been signed.
Furthermore, the fact of MLink not complying at a given moment with any of the general terms and conditions cannot be interpreted as waiving the right to prevail, at a later date, against any of the said conditions
III -PERFORMANCE CONDITION
The Customer undertakes to supply MLink, before the Services are carried out, with all the elements necessary for them to be carried out, in particular:
- any certificates from royalty collection agencies (such as SDRM in France) justifying the payment and cash collection of rights corresponding to works which will be reproduced by MLink when producing the Media, or for any contracts entered into with foreign Customersat the royalty collection agencies of the countryin which the Products are sold,
- supporting documentation that the Customer holds the rights enabling it to confer the performance of the Services to MLink, in particular, supporting documentation regarding royalties and the payment of any rights to be settled for the performance of the Services, in accordance with the applicable legislation in the country in which the Products are sold,
- theinformationor data to be recorded should be in perfect state of use, in accordance with the standards of the quality of use applied to the media and the formats required by MLink to carry out its Services.
In the event in which non-compliant elements and/or data or the said elements and/or data are in a condition which does not allow them to be used in normal conditions, MLink will draw up, to the best of its abilities, a quote and with the Customer’s written agreement, will correct or have these elements corrected at the Customer’s expense. If it is impossible to come to an agreement with regard to the quote, it will ask the Customer to supply new compliant data. In any case, the cost of storing the elements supplied by the Customer to MLink will be billed to the Customer in accordance with applicable pricing. The elements of a Service for which no order has been placed during three months will be destroyed unless expressly requested by the Customer. If the Customer wishes, the storage of these elements can be extended beyond this timeframe and the cost of the corresponding storage will be billed.
III -1 OK to Print
Ok to Print is defined as a formal act accepted by both Parties. The acceptance of an OK to Print by the Customer releases our company from any liability regarding any error which has not been corrected such as texts, colour, position which the Customer formallyacknowledges, the volume, the cutting drawings and the material.
Nevertheless, if any company must produce a new OK to Print due to a change of logo text or other element, we will carry it outat the Customer’s request but wewill reserve ourselves the right to bill it for any expenses. When the absence of an OK to Print is due to an act or the discretion of the Customer, the graphic manufacturer is no longer liable. If there is no OK to Print, then the ordering party’s has full liability.
Furthermore, the Customer acknowledges that it has been informed that sensitive variations of positioning, tint or aspect can occur within the limit of machine tolerancesbetween the ordered OK to Print and the order as delivered. These differences cannot in any case lead to an order being refused, nor a price discount, nor any damages.
IV - SERVICES
The services which will be carried out by MLink will be precisely and specifically described in the contract or the order. In the event of any Desktop Publishing design prior to certain Services being carried out, the latter will only be carried out after the issuance of an Order to Print.
V - PRICES
The price of Recordable Media and Services will be those stipulated in MLink’s proposal or by default those which are in force on the day that the order was placed.
The price of Recordable Media is that which figures in MLink’s pricing list on the day of the order.
MLink reserves itself the right to change prices at any moment.
The price of Media and Services will be made available to Customers and can be communicated upon simple request.
Prices are exclusive of tax. In France, the prices are subjected to the applicable VAT.
For Recordable Media, the prices are increased by the tax for private copies and collected by SORECOP.
For contracts entered into with foreign Customers, the price of Products and Recordable Media does not include any taxes, duties or tax burden in force in the country in which the Products or Recordable Media transit and/or are marketed. All theses taxes, duties or tax burden will be paid by the Customer. Nevertheless, if these taxes, duties or tax burden are imposed to MLink, the Customer shall repay MLink upon reception of the corresponding invoice.
VI - PAYMENT
VI-1 -Paymentwith order
During the first order and/or by default the opening of an account as stipulated hereinafter, the Products and Recordable Mediawill be payable:
- for orders less thanor equal to €1,000at the time of the order,
- for orders higher than to €1,000: 70% at the time of the order and 30% at reception of the invoice issued upon delivery.
Cash with order can also be requested by MLink in the event of work-in-progress being exceeding or at the closure of the account.
VI-2 -Payment schedules
Subject to opening an account as defined hereinafter, 100% of the price is payable at MLink’s head office, 30 days from the date of the invoice in accordance with the provisions of the French Commercial Code.
VI-3 -Prepayment discount
Customers have the possibilityof paying by check or bank transfer within a timeframe of 15 days from the date of the invoice, if they do so they will benefit from a 1% discount on the net amount of the invoice.
VI-4 Opening an account
Each new Customer wishing to have the payment schedules mentioned above in VI-2, must make a request to open an account beforehand.
For each request, MLink will carry out a financial investigation. Depending on the information it is communicated, MLink reserves itself the right not to accept the opening of an account if this information is not satisfactory with regard to the objective criteria established by MLink. Furthermore, during this opening of account phase, MLink shall determine, in accordance with the said objective criteria, a work-in-progress beyond which each order or part of order should be paid with.MLink reserves itself the right to close any account in the event of a late payment or any new financial information which is in not compliant with the objective criteria established by MLink when granting or maintaining an account.
VI-5 -Late payment penalties
In accordance with theprovisions of the French LME law, in the event of a payment after its due date, late payment penalties will be calculated and charged from the due date until the effective payment at the interest rate applied by the European Central Bank in its most recent refinancing operation increased by 10 percentage points. These penalties will be payable after the Customer receives a notice by registered letter with acknowledgement of receipt, informing it that MLink has debited the said penalties.
VI-6 -Other Sanctions
Without any prejudice to any other request for damages:
- Any amount not settled by the Customer on the due date figuring on the invoice will result in MLink being reimbursed any debt collection expenses it might have incurred, and the immediate suspension of any deliveries,
- In the event of late payments beyond 30 days, MLink can suspend any orders and/or terminate on-going orders and contracts.
- Any sums owed for other orders or contracts, whether they have been delivered or not, will become immediately payable..
VI-7 -Invoice disputes
The Customer undertakes to control invoices upon reception and to formulate any comments or observations within one month from the date of the invoice. If it fails to challenge any non-conformities within this timeframe then the invoice will be considered as compliant. In the event of a partial challenge of the amount of the invoice, the part of the invoice which has not been challenged must be paid by the Customer within the above-definedtimeframe.
VII -DELIVERY-RISK TRANSFER
VII-1 French contracts
For contracts entered into with French Customers, the Products and Recordable Media will be dispatched from the factory or from a warehouse.
Risk transfer will take place at MLink’s factory or warehouse on the date on which the Products or Recordable Mediaare made available to the Customer.
For Products and Recordable Media for which MLink is in charge of the shipping, like for example “carriage-paid” prices, the risk transfer will also take place at MLink’s factory on the date on which the Products or Recordable Media are handed over to the shipperchosen by MLink, on behalf of the Customer.
In any case, it is up to the Customer to carry out upon reception of the Products or Recordable Media, in the presence of the shipper, the necessarycontrols and reservations with the shipper in the conditions required by the Law.
For contracts entered into with foreign Customers, the Products and Recordable Media will be shipped“EX WORKS”in accordance with the Incoterms in force.
In accordance with the Incoterms, the transfer risk will take place at MLink’s warehouse on the date on which the Products or Recordable Media are made available to the Customer.
For Products and Recordable Media for which MLink is in charge of shipping, the Products and Recordable Media will be deliveredCIP (Carriage and Insurance Paid) in accordance with the Incoterms in force.In accordance with the Incoterms, the transfer risk will also take place at MLink’s factory on the date on which the Products or Recordable Media are handed over to the shipper chosen by MLink, on behalf of the Customer.
In any case, it is up to the Customer to carry out upon reception of the Products or Recordable Media, in the presence of the shipper, the necessary controls and reservations with the shipper in the conditions required by the Law
VIII –DELIVERY SCHEDULE
Unless otherwise stipulated, delivery schedules are given for information purposes.
In the event of firm delivery schedule; it will begin to run after the Customer has supplied all the elements in accordance with MLink’s specifications for carrying out the Services of which certain are recalled in point III.
For OK to Print Services, they will only be carried out after the Customer signs the OK to Print form. Consequently, the lead time taken by the Customer to issue its OK to print will be taken into account for the time needed to carry out the service.
Any delivery and/or transport delays cannot in any way justify the cancellation or termination of the order or contract, nor leadto MLink paying any compensation.
The Customer undertakes to carry out a conformity control check on the Products or Recordable Media upon delivery of the Products or Recordable Media.
In the event of any missing products, the Customer undertakes to carry out any necessary measures with the shipper. It is specified that due to MLink’s manufacturing constraints, in agreement with the Customer, the delivered and billed quantities can be subjected to variations of more or less 10% with regard to the ordered quantities.
Quantity variations for Recordable Media with regard to the ordered quantities:
Between 0 and 10,000: + or- 20 %
Between 10,001 and 30,000: + or - 15 %
Between 30,001 and 100,000: + or - 10 %
Beyond 100,001: + or- 5 %
For any other conformity defect onProducts or Recordable Media delivered within the scope of an order or a contract, the Customer is in its right to refuse the delivery of non-conformProducts or Recordable Media. In the event of deliverednon-conformProducts or Recordable Media being accepted, the Customer undertakes to inform MLink within 48 hours following the delivery of the conformity defects. If the Customer fails to do so, the delivered Products or Recordable Media will be considered as conform. It is up to the Customer to bring any supporting documentation regarding the reality of the observed defects or abnormalities.
For OK to Print Services, the conformity control will be carried out in accordance with this OK to Print.
X - GUARANTY-MLink’S LIABILITIES
X- 1 -Guarantee-Services
MLink’s guarantee is expressly limited to MLink’ssatisfactoryperformance of its Services in accordance with best industry practices and the provisions of the contract or order. Under the terms of performing its Services, MLink undertakes to carry them out with all the diligence of a professional, MLink beingsolely subjected to a duty of care.
The guarantee can only be implemented by the Customer.
Any guarantee shall be excluded for any incidents occurring due to non-conformities use or storage.
The guarantee does not cover any wear considered as usual.
During the three-month guarantee period after delivery of the Products, as defined in Point VII, MLink undertakes to re-carry out the Service which has been acknowledged as defective subject to a complaint from the Customer occurring within a timeframe of 48 hours after the defect occurred.
X- 2 -Guarantee - Media
MLink guarantees the satisfactory manufacturing of the Media and the Recordable Media in accordance with best industry practices and MLink’s specifications. During a guarantee period of three (3) months after the delivery date of the Products or Recordable Media as defined in point VII, MLink undertakes to replace the Products or Recordable Media which have been acknowledged as defected due to a materials or manufacturing defect, subject to a complaint from the Customer occurring within a timeframe of 48 hours after the defect was acknowledged
Any guarantee is excluded for any incidents due to any use or storage which is non-conform to normal conditions of use.
The guarantee does not cover any wear considered as usual.
X- 3 - Liability
In any case, MLink liability is limited to the price of the incriminated Products or Recordable Mediaand does not cover any intangible and/or indirect damage.
The consumer guarantee is compliant with the applicable legal guarantee.
The expiry of the guarantee period ends all of MLink’s contractual obligations.
XI -TRANSFER OF OWNERSHIP
The ownership of the Products or Recordable Media will only be transferred to the Customer once it has paid the price in full, in principal, including expenses and related charges. In the meaning of this article, the remittance of notes receivable or any securities creating an obligation to pay are not considered as payment. The Customer undertakes to inform MLink, within forty-eight hours, of any seizures operated by a third partyon the Products or Recordable Media found in its stores or warehouses. Failing payment on the agreed upon due dates, MLink can, as required, recover the Products or Recordable Media which are located at the Customer’s premises and this at the latter’s expense, and the Contract can be terminated if MLink deems fit. The sums owed by the Customer under the terms of this article will be compensated along with any prepayments paid by the latter to MLink.
XII - FORCE MAJEURE
The force majeurewhich frees MLink of its obligations or excuses delays in the performance of its obligations, extends to any event which cannot be surmounted, despite reasonable diligence on the part of MLink such as and without this list being exhaustive: the weather, fire, explosion, flooding, shortages of materials or lack of transport, insufficient electricity and energy supply, accidents affecting production, abnormal delays in obtaining certifications, force majeure of suppliers and/or subcontractors, strikes, lockouts, riots, wars, blockades, piracy, restrictions, requirements or prohibitionsenacted by governmental authorities or by any other authority constituting an “act of state”. In the event of a case of force majeure, MLink must inform the Customer with the eight days following the occurrence of the event or its knowledge of the event.
In the event of a late delivery, the lead times will be extended by the duration of the late delivery which was a result of the force majeure.
If, after a case of force majeure as defined above, it is impossible for MLink to perform part of or all of the Contract orif the event of force majeure continues beyond six months, each of the Parties will be in its right to renouncecontinuing with the performance of all or part ofthe Contract without any damages, penalties, or any other compensation or participation in the prejudice it has endured because of the force majeure, the part of the Contract which has already been performed cannot be resolved.
XIII - LEGISLATION AND REGULATIONS
It is incumbent upon the Customer:
- to checkthat each Product or Recordable Medium is compliant with standards, and is compliant with the regulations in force in the country in which the Products or Recordable Media are marketed;
- to inform MLink, prior to the order, of any change in a Product or Print which is necessary for it to be adapted so that it complies with the said standards and regulations applicable in the said countries.
The contractual conditions will be adapted in accordance with the required modifications.
In the event in which the modifications of the standards or regulations occurs during the Contract, the contractual conditions will be consequently adapted. Furthermore, if these modifications render the performance of the Contract too difficult or even impossible, MLink can terminate the Contract by simply sending a registered letter with acknowledgment of receipt and requestingan indemnity to compensate the costs incurred and/or borne by MLinkbefore and during the termination of the Contract.
XIV -INTELLECTUAL PROPERTY-USE CONTRARY TO PUBLIC DECENCY AND/OR LEGAL PROVISIONS
CD-Rs, DVD-Rs, Exabytes, hard discs, files deposited on MLink’s FTP server, sleeves and in general any document or medium necessary for the satisfactoryperformance of the Services remain the property of the Customer. Subject to the full payment of the Products, these elements will be handed back to the Customer following an express request. MLink will exercise a right of retainer on these elements until the Products have been paid in full.
In any case, the elements handed over by the Customer will be destroyed two years after completion of the Services without there being anyrepresses or reprints.
The Customer guarantees that it will comply with the intellectual property rights which MLink holds for its brands, patents, templates concerning the Products or Recordable Media and consequently undertakes not to use them without MLink’s express agreement.
The Customer certifies that it holds the intellectual property rights or has the authorisations from the beneficiaries of the rights for all the content and contents of the Products or Recordable Media necessary for MLink to carry out the services.
Consequently, the Customer guarantees MLink against any claims or complaints, whoever the author, regarding the intellectual property rights and in particular the rights owed to royalty collection agencies. In the event of proceedings against MLink due to the use, in the framework of carrying out the Services, of data and information transmitted by the Customer, MLink will immediately inform the Customer.
In any case, in the event in which MLink’s becomes liable for the illegal use of data and information transmitted by the Customer and/or counterfeit actions, the Customer undertakes to compensate MLink of any expenses, damage and any other claims resulting from such proceedings.
The Customer guarantees MLink that any data and information which it supplies to MLink is compliant with public decency and the legal provisions applicable to Products in France and/or the countries in which the Products are marketed.
The Customer guarantees MLink against any action, whoever the author, based on the use of data and information contrary to public decency or contrary to the legal provisions applicable to Products in France and/or the countries in which the Products are marketed.
In any case, in the event in which MLink is liable for the use of data and information contrary to public decency or contrary to the legal provisions applicable to Products in France and/or the countries in which the Products are marketed, the Customer undertakes to compensate MLink for any expenses, damages and for any claims resulting from such proceedings.
The models and templates, forms and designs developed by MLink are the property of MLink, the customer can therefore not manufacture the same model and template at a competitor’s.
XV - JURISDICTION - APPLICABLE LAW
The sales contracts are subjected to French law.
Any dispute whicharises between MLink and the Customer resulting from the inception, performance or interpretation and rescission or termination of the sales contracts will fall within the exclusive jurisdiction of the competent courts of LAVAL (France).