GENERAL TERMS AND CONDITIONS OF SALE
1 - Application of general terms and conditions of sale - Binding Effect
These General Conditions of Sale (GCS) constitute the basis of commercial negotiation and are systematically transmitted or given to every buyer for the purpose of entering a purchase order.
These conditions shall prevail over the conditions of purchase excepting formal written acceptance by the Seller. Any contrary condition put forward by the Buyer shall not therefore, unless expressly accepted, be binding on the Seller, regardless of when such condition is made known to the Seller.
No failure or delay on the part of the Seller to exercise any of its rights under the present General Conditions of Sale shall be construed as a waiver of any further exercise of any of the said Conditions.
2 - Orders
An order is valid provided that it states the quantity, brand, type, and references of the sold products as well as the agreed price, terms of payment, place and date of delivery or on-loading.
Orders are not final, even where they are placed via sales representatives, commercial agents or employees, until they have been acknowledged in writing by the Seller, and subject to coverage by the Seller's international credit insurance or bank guarantee, or failing this, subject to cash payment with order.
Unless specially agreed, an order entails acceptance by the Buyer of the Seller's Conditions of Sale, acknowledgment of having perused the said Conditions, and waiver of exercise of the Buyer's own Conditions of Purchase.
Benefit of the order is personal to the Buyer and may not be assigned without the consent of the Seller.
4 - Prices
The products are provided at the prices prevailing at the time of acknowledgment of the order expressed in Euros and subject to the VAT applicable on the date of the order; any change in the rate may be passed along to the price of the products or services.
The applicable price is the price prevailing on the date of delivery. Prices and data provided in catalogues, flyers and price lists are not binding on the Seller, who reserves the right to alter its prices and materials.
Unless specially agreed, all prices are understood to be net, not including transport and carriage or packing charges, exclusive of taxes on the basis of the price lists transmitted to the Buyer. All taxes, duties, rights or other sums required to be paid under French regulations or those of an importing country or a transit country are the responsibility of the Buyer.
No discount shall be granted for early payment.
Any price reduction that may be granted to the Buyer shall be expressly subject to the Buyer's compliance with its commitments, the general or contractual terms, and the payment periods. Overdue invoices shall be deducted from any price reductions granted to the Buyer or as the case may be to the central purchasing consortium it belongs to.
5 - Delivery
5.1 - Terms :
Delivery is made in accordance with the order either by direct delivery of the product to the Buyer, or by simple notice of availability, or by delivery to a consignor or carrier onto the premises of the Seller.
The Buyer agrees to take delivery within eight days from the notice of availability. Once this time expires, storage fees shall be charged.
5.2 - Times:
Delivery times are given for guidance purposes only.
Extensions of delivery time shall not entitle to compensation, deduction or cancellation of current orders.
Furthermore, all delivery times, even where agreed by special stipulation, shall be cancelled or postponed by any events of mishap or force majeure. Seller is thus released from its obligation to deliver in case of war, riot, fire, strike whether total or partial, accidents, machine or tool breakage, impossibility for the Seller to receive supplies, disruption of transports.
The Seller shall keep the Buyer informed at the appropriate time, of the occurrence of any of the above-stated cases and events. In any event, on-time delivery can be effected only where the Buyer is up to date on its obligations towards the Seller in any respect whatsoever.
5.3 - Passing of Risk:
The risk in the goods in transit passes to the Buyer notwithstanding means of transport and/or terms of payment for transport price, whether FOB or EXW. It is the Buyer's responsibility, in the event of damage or shortage, to proceed to all necessary inspections and to confirm its reservations by means of extrajudicial service or by registered letter with acknowledgment of receipt to the carrier within three days of receiving the materials and to enter claim against the carrier at Buyer's own expense. This principle is not subject to exemption by reason of the Seller handling all or part of the transport, wherein the Seller is then a simple agent of the Buyer
6 - Receipt
Without prejudice to possible measures to be taken with regard to the carrier, claims for apparent defects or non-conformance of the delivered product with respect to the ordered product or the consignment note, must be notified in writing within 48 hours from arrival of the products.
It is the Buyer's responsibility to substantiate evidence of such defects or discrepancies. The Buyer shall give the Seller every facility in order to proceed to inspection of such defects and to remedy same. The Buyer shall refrain from taking any remedial action itself or allowing any third party to do so.
7 - Returns
7.1 Terms :
Returns of products must be submitted to formal agreement between the Seller and the Buyer. Any product returned without the said agreement would be kept at the Buyer's disposal and would not give rise to a credit note. Charges and risks related to returns shall be the Buyer's responsibility with no exception.
No return will be accepted later than eight days after delivery date.
Returned goods shall be sent with a return note attached to the parcel and must be in the condition in which the Seller delivered them.
7.2 Consequences :
In the event of apparent defect or non-conformance of the delivered products duly ascertained by the Seller as provided above, the Buyer may at Seller's sole discretion obtain free replacement or refund for the products, exclusive of any allocation of compensation or damages in this respect.
8 - Warranty
8.1 Scope :
The products are guaranteed to be free of materials or manufacturing defect for a period of one (1) year from delivery date, and provided that the Buyer has complied with payment terms. Warranty claims may not in any event result in extension of the warranty time period.
Under this guarantee, the sole obligation on the Seller shall be, at Seller's discretion, free replacement or repair of the product or component acknowledged to be defective by Seller's technical services in its workshops, unless this method of compensation should prove to be unfeasible or disproportionate. In order to apply for warranty, all products shall be submitted to prior review of the Seller's After-Sales service, whose acceptance is required for any replacement. Carriage charges if any are paid by the Buyer, who may not seek any compensation whatsoever in the event of down-time of the goods owing to application of the warranty.
8.2 Exemptions :
The warranty does not apply to apparent defects.
Also excluded are defects and deteriorations caused by normal wear and tear, external accident, damage resulting from abuse or misuse by the customer, or from modifications of the product that have not been unauthorised or specified by the Seller.
9 - Invoicing
Unless otherwise agreed in writing, invoices are dated and issued within eight (8) days from delivery.
10 - Payment
10.1 Terms :
Unless other agreed in writing, payments shall be made to the registered office of the Seller upon receipt of invoice. The Seller's commercial agents and sales representatives are not empowered to proceed to collect payments.
In the event of payment by bill of exchange, such bills must be returned duly accepted within 48 hours of invoice date.
10.2 Late payment or failure to pay :
In the event of overdue payment, the Seller may suspend all current orders, without prejudice to other means of recourse.
All amounts remaining unpaid upon the due date stated on the invoice shall give rise to de facto application of an 8% penalty without further formality.
In the event of failure to pay within forty-eight hours after formal notice remaining without remedy, the sale shall be cancelled automatically as the Seller deems fit and the Seller may apply in summary judgment for restitution of the products, without prejudice to award of damages. Cancellation shall take effect regarding the subject order and all prior unpaid orders as well, whether delivered or in the process of delivery and whether the payment thereof is due or not.
Refusal to accept bills of exchange, and the absence of acceptance of bills of exchange within the afore-stated 48-hour time limit or non-payment of one single invoice or one single bill upon its due date are assimilated therein, shall be regarded as default in payment, whereupon the total amount of outstanding debt shall become immediately payable, whether or not such amounts have been subject to bills of exchange, and the Seller is released from any commitment to the contrary. Likewise, where payment is in instalment form, non-payment of one single instalment shall result in immediate payability of the total amount of the debt without prior formal notice.
In all the afore-stated cases, sums due in respect of other deliveries, or for any other reason, shall be immediately due and payable, unless the Seller chooses to cancel the corresponding orders.
The Buyer shall, in all the above-stated cases, reimburse all expenses incurred for recovery of sums due, including but not limited to fees for lawyers, process-servers and any debt-collection adviser or professional.
Furthermore, in event of non-payment within a period of eight (8) days after formal notice by registered letter with acknowledgment of receipt, a penalty equal to 30 % of the price of the products sold shall be applied, with a minimum application of 1,000 €.
Payments may not in any event be deferred or set-off in any way without the Seller's prior written agreement. Partial payments shall be charged firstly to the non-liened fraction of the debt, then to the most senior payable debts.
11 - Retention of Title
DELIVERED GOODS REMAIN THE PROPERTY OF THE SELLER UNTIL FULL PAYMENT OF THE PRICE THEREOF IN PRINCIPAL AND INCIDENTALS. NOTWITHSTANDING, RISK IS TRANSFERRED UPON DELIVERY. The Buyer may nevertheless resell or transform the goods in the context of its normal business operations. In the event of resale, the Buyer then transfers to the Seller all debt claims arising to its benefit from such resale to the purchasing third party.
12 - Governing Law - Disputes
THESE PROVISIONS ARE GOVERNED EXCLUSIVELY BY THE LAWS OF FRANCE.
THE COURTS OF LA ROCHE SUR YON ARE SOLELY COMPETENT IN THE EVENT OF LITIGATION OF ANY NATURE OR DISPUTES WITH RESPECT TO THE FORMATION OR THE PERFORMANCE OF THE ORDER. However, the Seller is free to refer to any other competent jurisdiction.
The present clause further applies to summary proceedings, interlocutory application or plurality of defendants or third-party warranty, and whatever the method and terms of payment. Furthermore, the Buyer's documents may not impede enforcement of the present clause.