GENERAL TERMS AND CONDITIONS OF SALE
These terms and conditions govern the contractual relationship between the Seller and any purchaser of goods or services supplied or provided by the Seller (hereinafter the “Purchaser”). The Purchaser acknowledges that it has read and understood these terms and conditions and that it accepts them. The Purchaser agrees not to rely on any other clause, in particular those appearing in its purchase order, its general terms and conditions of purchase or in any other document. These terms and conditions shall prevail over any other terms and conditions that may be accepted by the Seller.
Orders are validly placed by the Purchaser sending an order signed by an authorised person within its organisation, strictly on the basis of the terms of a commercial proposal previously issued by the Seller by e-mail or any other means agreed between the Parties. Orders can be placed by the Purchaser only in accordance with the price indicated on the aforementioned commercial proposal sent by the Seller, these prices being valid for the duration indicated on this proposal. However, in the event of a change in the general economic conditions and in particular an increase in the price of raw materials or of energies, the Purchaser reserves the right to modify its price, which it shall notify to the Purchaser in a written form and providing reasonable grounds on such increase, which shall be applicable to any order placed after this notification for the remaining period covered by the current commercial proposal.
The order shall be deemed accepted by the Seller once (i) an acknowledgement of receipt of the order has been formally issued to the Purchaser by any means, in the first instance, and then (ii) after having sent the Purchaser a confirmation of the order by any means (e-mail with acknowledgement of receipt, etc.) in the second instance. In the event of a contradiction between the commercial proposal or the acknowledgement of receipt/confirmation of the order or the commercial proposal on the one hand, and the order form on the other hand, the commercial proposal or the acknowledgement of receipt/confirmation of the order or the commercial proposal shall prevail.
Once the Seller has issued an acknowledgement of receipt for an order or has sent its confirmation, the order may not be suspended, modified, postponed or cancelled without the Seller’s prior express written consent. Any modifications made to an order may result in a price increase or a later delivery date. In the event that an order is cancelled without the Seller’s consent, any deposits already paid may be retained by the Seller as minimum damages for any loss it may sustain.
THE PURCHASER’S REQUIREMENTS – THE SELLER’S ROLE
By placing an order, the Purchaser acknowledges (i) that it has received sufficient information on the characteristics of the Seller’s goods and on whether the said goods are suitable for its requirements, (ii) that it is responsible for requesting any further information and any external assistance and that it waives its right to bring any claim against the Seller based on a lack of information, details or advice. The Purchaser is responsible for ensuring that the goods are fit for their intended purpose.
Contractual delivery dates are approximate.
Risk shall pass to the Purchaser upon delivery. Unless otherwise agreed, delivery shall always be made by making the goods available at the Seller’s premises (Ex Works or EXW – ICC 2020 Incoterms). In the specific case where the Seller is responsible for arranging the carriage of the goods, the goods shall be delivered during the Purchaser’s hours of business as stated by the Purchaser in its order. If this information is not provided in the order, the goods may be delivered at any time on the days and at the times worked by the carriers. In the event of late delivery caused by the Purchaser, any costs resulting therefrom, in particular owing to storage of the goods and the new delivery, shall be borne by the Purchaser.
The Purchaser shall check the condition of the goods and their apparent conformity as soon as it takes possession thereof from the Seller or the carrier. In the event of any loss or damage connected to the carriage or any apparent non-conformity of the ordered goods, the Purchaser shall immediately mention it and/or issue detailed reservations with reasons to the carrier on the delivery slip and shall send the copy thereof to the Seller within forty-eight (48) working hours of delivery. Failing this, the goods are deemed to have been accepted “as is”. Payment by the Purchaser also constitutes an acknowledgement of the apparent conformity of the delivered goods. The Purchaser shall provide the Seller with the copy of the delivery slip and any and all relevant supporting documents or evidence relating to the discrepancies, defects or non-conformities discovered. The Seller may correct these discrepancies, defects or non-conformities by any means of its choice by at most replacing the non-conforming or defective goods. The Seller is not bound by any other obligation, and in particular by any obligation to provide compensation, other than to correct the goods by the means chosen. In all cases, the Seller’s prior express written consent is required for any return of goods or parts. In the event that the carrier takes back the goods, the Seller’s prior express written consent is still required. Any goods returned solely on account of damaged packaging will be refused unless it can be shown that the goods themselves have been affected. Any goods returned without the Seller’s consent will be made available for collection by the Purchaser at the Purchaser’s own risk. In such circumstances, the price of the goods will remain payable along with the corresponding storage costs. The Seller’s consent to a goods return shall not in any way be alone construed as an acknowledgement by the Seller of the discrepancy, defect or non-conformity.
PRICE AND PAYMENT
The applicable prices are those agreed between the Parties in accordance with the provisions described above in the paragraph "ORDERS". The Purchaser acknowledges that the Seller is at all times entitled to ask for the payment of a deposit prior to delivery. Unless otherwise proposed by the Seller or otherwise specified in the commercial proposal, the prices of the goods are stated Ex-Works (EXW), in euros and exclusive of taxes, duties of any kind and any special packaging fees. The Purchaser agrees not to rely on any clause aligning the prices charged to it with the prices charged to other customers.
Unless otherwise expressly stated by the Seller, the Seller’s invoices are payable by SWIFT or SEPA transfer, thirty (30) days net as of its date of invoice, with no discount for early payment.. The payment of any credit note or discount owed by the Seller must be claimed within no more than one (1) year of the date on which the debt arose, failing which any claim will be invalid and time-barred. In the event of late payment, the Seller may suspend any and all pending orders without prejudice to any other recourses, remedies or damages.
In the event that the Purchaser fails to pay any sum by its due date, all deferred payment terms granted for all orders will be withdrawn and late payment interest may automatically accrue, without any requirement for prior formal notice, at a rate equal to the European Central Bank’s discount rate increased by ten (10) percentage points. The Purchaser shall also pay the fixed amount of EUR40 as set forth by applicable French regulation and corresponding to recovery costs. If the recovery costs are more than EUR40, the Purchaser shall reimburse all additional costs potentially incurred for the recovery of any sums owed upon justification, including the fees of debt recovery agencies, public officials, such as notaries and bailiffs, and lawyers.
The Seller reserves the right not to accept an order if the Purchaser fails to pay an invoice within the aforementioned period.
The Purchaser acknowledges that the Seller is the holder or licensee of the intellectual and industrial property in the goods, the technical and commercial documents and the names, signs, designs, models or patents used by the Seller for their marketing (the “IP”). The Purchaser undertakes not to remove the Seller’s trademarks or signs appearing on the goods or their packaging and not to add its own trademarks or signs to the goods or repackage the goods with its own packaging without the Seller’s prior express written consent. The Purchaser may not register, obtain a right to, or use an IP element regardless of whether or not the IP element has been registered in the Purchaser’s country, for any purpose other than the use or fair marketing solely of the goods actually acquired from the Seller and available for retail sale, in accordance with the terms of the agreement and the rules and standard practice in France and in the Purchaser’s country. The Purchaser also undertakes to transfer to the Seller, free of charge, any and all rights created in an IP element.
WARRANTY - LIABILITY
The Seller warrants that its goods comply with their technical documentation and the standards in force on the date of delivery to the Purchaser. The Seller shall hold the Purchaser harmless from and against any variation in the components exceeding the threshold stated in the technical documentation related to the goods. The Seller’s obligation under its warranty only covers, at its discretion, the repair of the goods or, at the most, their replacement in the event that they have been found to be defective or non-conforming.
The Seller’s warranty only applies where the goods have been used and/or transformed in accordance with the relevant technical documentation, the standards in force and standard industry practice and where they have been stored in a normal way in accordance with their intended use and the technical documentation and where the Purchaser has performed conformity testing on the goods in this respect prior to any transformation or industrial processing. The Seller’s warranty does not cover the goods in the event that the non-conformity or defect has been caused by an improper use of the goods. The Seller does not warrant that the goods sold will not infringe any intellectual property rights and in particular any patent held by a third party in any destination country.
All defects must be reported in writing within no more than fifteen (15) days of discovery, failing which the warranty will cease to apply. For all types of defects, the Purchaser must show that the defect discovered is attributable to the Seller and must provide a detailed description of the defect. The Seller’s prior express written consent is required for any return of goods. Returns are made at the Purchaser’s own expense and under its own liability.
NO CLAIM MAY BE MADE AGAINST THE SELLER FOR PAYMENT OF PENALTIES OR LIQUIDATED DAMAGES ON ACCOUNT OF A LATE DELIVERY OR MORE GENERALLY, A FAILURE BY THE SELLER TO PERFORM ITS OBLIGATIONS. THE SELLER MAY NOT BE HELD LIABLE FOR ANY NON-PECUNIARY, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGE, WHETHER OR NOT IT WAS FORESEEABLE, SUSTAINED BY THE PURCHASER AND IN PARTICULAR, FOR ANY LOSS OF INCOME OR PROFIT, OPERATING LOSSES OR DAMAGE CAUSED TO ITS BUSINESS OR REPUTATION OR FOR ANY LOSS ARISING FROM CHANGES TO THE STANDARDS IN FORCE INTRODUCED AFTER DELIVERY OF THE GOODS. ON ACCOUNT OF THE ECONOMIC BALANCE OF THE AGREEMENT, THE PRICES CHARGED BY THE SELLER AND THE BALANCE OF THE RIGHTS AND OBLIGATIONS OF THE PARTIES AS ACKNOWLEDGED BY THE PURCHASER, THE SELLER’S TOTAL LIABILITY FOR ALL LOSSES, HOWSOEVER CAUSED, MAY NOT EXCEED THE AMOUNT OF THE RELEVANT ORDER AND IS CAPPED AT A MAXIMUM AMOUNT OF EUR 50,000. THE PURCHASER MAY NOT MAKE ANY CLAIM UNDER ANY OTHER WARRANTY OR ANY OTHER HEAD OF LIABILITY OR FOR ANY OTHER REMEDY OR DAMAGES OTHER THAN THOSE SET OUT IN THIS CLAUSE.
RETENTION OF TITLE
Without prejudice to the fact that risk passes to the Purchaser when the goods are delivered by being made available at the Seller’s premises (Ex Works/EXW) or on any terms and conditions of delivery that may exceptionally be agreed, title to the goods sold will not pass to the Purchaser until all sums owed by the Purchaser for the sale and recovery of the price have actually been received. In the event that the Purchaser fails to pay on time, the Purchaser automatically loses the right to sell on or transform the goods. The Seller may arrange for unpaid goods to be collected from any location, and in particular from the Purchaser’s premises, and the Purchaser fully and irrevocably authorises the Seller to collect the goods in these circumstances. The goods collected shall be deemed to be those sold under the most recent invoices. In the event that the Purchaser has sold the goods on to a third party, the Purchaser is deemed to have assigned the receivable to the Seller consisting of the price payable by any third party sub-purchaser. In the event of legal proceedings, a seizure or provision of security and, in particular, a charge over the Seller’s goods by a third party, the Purchaser shall immediately inform the Seller thereof and shall inform the said third parties of the existence of the Seller’s financial claim to the relevant goods and the existence of this retention of title clause. In the event that a claim is made under the provisions of this clause, any deposits already paid will be retained by the Seller as minimum damages for any loss the Seller may sustain.
These general terms and conditions of sale may only be amended with the Seller’s written consent and any failure by the Seller to assert its rights under one of the provisions hereof shall not be construed as a waiver of its right to subsequently assert them.
In the event of full or partial force majeure, as this term is defined in Article 1218 of the Civil Code, the Seller shall be released from its obligations and liabilities. The following shall be treated as force majeure events: any lock-out, total or partial strike or other industrial action, fire, flooding, physical damage, riots, war, explosion or other serious disruption in production or to the business, IT failure, change in standards or regulations, in particular in the country in which the goods are used, import or export prohibitions, freezing weather conditions or other weather conditions preventing or limiting transport, any interruption to or reduction in supplies or transport, whether these events affect the Seller, its goods, its suppliers or its carriers directly or indirectly, any inability of a manufacturer to supply conforming goods to the Seller, pandemics and epidemics, as well as any event beyond the Seller’s control affecting performance of its obligations. In the event that a force majeure event prevents the Seller from performing its obligations for more than two (2) months, the Seller may cancel all or part of any undelivered orders as of right with no compensation entitlement.
In the event of a serious or repeated breach by the Purchaser of one of its obligations, in particular in the event that the Purchaser fails to pay the Seller’s invoices on time, the Seller may as of right cancel the order(s) by any means, fifteen (15) days after formal notice sent by the Seller by any means, including by email, to no effect and even where the said formal notice does not refer to the cancellation, or immediately in the event that the discovered breach cannot be cured, without prejudice to any damages that may be payable to the Seller. The Seller may retain any deposits already paid as minimum damages for any loss it may sustain.
Any dispute arising between the Seller and the Purchaser shall be decided in accordance with French law (and shall be referred to Vannes Commercial Court, even where multiple defendants, third party claims for indemnity or impleader are involved.