General Terms and Conditions of Sale

Transcription

1 Article 1 - Purpose and scope General Terms and Conditions of Sale 1.1 / All product orders imply the buyer's unreserved agreement to and full and unconditional acceptance of these general terms and conditions of sale, which shall prevail over any other document issued by the buyer including, in particular, any terms and conditions of purchase unless our company has given its express, prior approval otherwise. 1.2 / These general terms and conditions of sale apply to all sales of products by our company unless otherwise agreed in advance of the order in writing between the parties. Accordingly, the issue of an order by a client implies the latter's full and unconditional acceptance of these general terms and conditions of sale, unless our company has granted said buyer special conditions in writing. 1.3 / All documents other than these general terms and conditions of sale including, in particular, catalogues, brochures, advertisements, notices, are given for information only and have no contractual value. Article 2 - Intellectual property All technical documents delivered to our clients shall remain the exclusive property of DE-STA-CO France SAS, sole holder of intellectual property rights to these documents, and shall be returned at its request. Our clients agree not to use these documents in any way that could infringe our company's industrial or intellectual property rights, and also agree not to disclose them to any third party. Article 3 - Orders 3.1 / Definition Order means any order involving the products listed on our tariffs, and approved by our company, accompanied by payment of any deposit that may be noted on the order form. Orders for special or obsolete products are binding. 3.2 / Modifications / Orders sent to our company are binding on the client, unless we have agreed otherwise in writing / Requests for changes in the size or make-up of an order placed by a client will only be considered by our company if the request is made in writing, including fax or , and received no later than 8 days following our receipt of the initial order. Should the client modify their order, our company will no longer be bound by the deadlines originally agreed for its execution. Article 4 - Deliveries 4.1 / Delivery times / Delivery times are given for information only. They depend, in particular, on the availability of carriers and the order of arrival of orders. Our company makes every effort to meet the delivery times indicated at the time of accepting the order, based on the trade's reference logistics times, and to complete orders except in cases of force majeure or of circumstances beyond our control, such as but not limited to strikes, frost, fire, storm, flood, epidemic or supply-related difficulties. Delivery delays shall not give rise to any penalty or compensation, nor lead to order cancellation.

2 4.1.2 / No delay with respect to the original indicative delivery time may result in cancellation of the order placed by the client and recorded by our company. 4.2 / Transport Should the delivered goods prove to be damaged or incomplete, the client shall be responsible for notifying any necessary reservations to the carrier. Any product not subject to reservations notified by registered mail with return receipt within 3 days of its delivery by the carrier will be deemed to have been accepted by the client in accordance with Article L of the French Commercial Code, a copy of which will be addressed simultaneously to our company. 4.3 / Acceptance of the goods / With no prejudice to the provisions to be taken by the client regarding the carrier as described in Article 4.2, claims for visible defects or missing items relating to the delivered products will only be accepted by our company if they are made in writing and sent by registered mail with return receipt, within the 3-day deadline stipulated in Article / The buyer is responsible for providing all necessary proof of the veracity of the stated defects or missing items / The client may not return any goods without the prior, express approval of our company in writing, received in particular by fax or / Should, following inspection, our company or its representative effectively record a defect or missing item, the client will only be entitled to ask our company, at its own cost, to replace the nonconform article or send the item(s) needed to make up the shortfall. This shall not entitle the client to any compensation or order cancellation / The client's unconditional acceptance of the delivered products covers any visible defect and/or missing items. All reservations shall be confirmed under the conditions set out in Article / The client shall remain liable for payment of the relevant goods irrespective of any claim they may have issued under the terms and conditions set out in this article / Our company may not be held liable for any events that occur during transport, destruction, damage, loss or theft of said goods, even in cases where our company chose the carrier. 4.4 / Suspension of deliveries Our company reserves the right to suspend any outstanding and/or future deliveries in the event of full nonpayment of a due invoice, following formal notification that has been ignored for 48 hours. 4.5 / Cash payments Our company fulfils all the orders that it accepts, on the understanding that the client has the adequate financial guarantees, and that it will settle all amounts on their due date as required by law. However, should our company have genuine or particular reason to believe that said client may experience payment difficulties on or after the date of the order, or should the client fail to provide the same guarantees as those provided on the order's date of acceptance, our company may make acceptance or execution of the order subject to a cash payment or to provision by the client of the guarantees required by our company. Prior to accepting any order, or during execution, our company may also require the client to send records of its accounts, including income statements in particular, even forecast versions, allowing it to assess said client's creditworthiness.

3 Should the client refuse to make a cash payment, and also fail to provide the sufficient guarantees, our company shall be entitled to refuse to honour the order(s) issued and to deliver the goods concerned. In such cases, the client shall not be entitled to claim wrongful refusal to sell, or claim compensation of any nature whatsoever. 4.6 / Refusal of an order Should a client place an order with our company, without having paid for their previous order(s), our company may refuse to honour the order and to deliver the relevant goods. In such cases, the client shall not be entitled to any compensation for any reason whatsoever. Article 5 - Tariff - Price 5.1 / Tariff / The current tariff may be revised at any time, following prior notification to our clients. Any tariff changes will automatically apply on the date shown on the new tariff. 5.2 Price / Our prices are fixed by the tariff in force on the date of placing the order. They are always given net of tax, products unpackaged, taken in our stores / Our prices are calculated net, with no discount, and payable on the date specified on the invoice. For prices quoted for a given quantity, any order for a lesser quantity will involve modifying the indicated price / Unless otherwise agreed, delivery delays shall not result in cancellation or modification of the contract. They shall not give rise to damages. Penalty clauses stated on our clients' trade documents are unenforceable against us / The deadlines specified in an order shall be accepted by our company, and shall be considered binding upon it solely under the following conditions: client compliance with payment terms and conditions and advance payments, timely provision of technical specifications, timely completion of studies or preparatory work, no cases of force majeure, or of social, political, economic or technical upheavals preventing work in our factories or their supply of components, energy or raw materials / Unless otherwise agreed, packaging is chosen and prepared by our company. It will be charged in addition to the prices indicated and may not be returned. Article 6 - Methods of payment 6.1 / Payment Our invoices are payable on the due date indicated therein. Under these general terms and conditions of sale, payment will only be deemed to have been received in full on actual collection of drafts or Promissory Notes.

4 6.2 Non-payment / The client will be liable to pay penalties fixed at three times the legal interest rate on all tax-inclusive amounts not paid on the due date. These penalties will be payable automatically and will be automatically debited from the client's account / Our company also reserves the right to apply to the competent court for an injunction to the buyer to pay any overdue amounts, with penalties for each day overdue. Article 7 - Retention of title 7.1 / The transfer of ownership of our products is suspended until the client has paid for them in full (principal amount and incidentals), even if extended payment terms have been granted. Any clause to the contrary, in particular those included in the general purchasing terms and conditions, shall be deemed unwritten, pursuant to Article L of the French Commercial Code. 7.2 / By express agreement, and with regard to any of its receivables, our company may invoke its rights under the present retention of title clause over all its products in the client's possession, said products usually being assumed to be those for which payment is outstanding. Our company may take back said products or claim compensation for all unpaid invoices, with no prejudice to its right to cancel any pending sales. 7.3 / The buyer is allowed to resell the delivered goods as part of their normal business operation. However, they may not pledge or transfer said property as collateral. In the event of resale, the buyer agrees to immediately pay our company outstanding balance of the price / Should an invoice not be paid on its due date, our company may also require cancellation of the sale following issue of a formal notice. Similarly, after sending such a notice, our company may unilaterally carry out or commission an inventory of its products in the client's possession. Said client herewith agrees to allow free access to its warehouses, stores or other to this end, while ensuring that the company's products may be readily recognized at all times. 7.5 / When opening proceedings for receivership or liquidation of assets, all orders in process will be automatically cancelled, and our company will reserve the right to reclaim the goods in stock. 7.6 / This clause does not prevent the risks attached to the goods being transferred to the buyer upon delivery thereto. 7.7 / Following delivery, the buyer will be appointed depositary and custodian of said goods. In the event of non-payment, and unless we should prefer to demand full execution of the sale, we reserve the right to cancel the sale following formal notice and to claim the delivered goods. Return costs will be charged to the buyer and any payments received for said goods will be deemed acquired by our company under a penalty clause. Article 8 Warranty covering visible and latent defects 8.1 / Products shall be checked by the client upon delivery, and any claim, reservation or dispute concerning missing items and visible defects shall be made under the conditions set out in Article 4. In the event of visible defects, our company will replace said defective parts, subject to verification of the alleged defect. The client shall provide proof of the veracity of the alleged defects, our company reserving the right to carry out, directly or indirectly, any on-the-spot observation and verification. 8.2 / The client shall issue claims regarding latent defects revealed following acceptance of the products in writing within 3 days of the date of discovery of the nonconformity. No claim will be considered if made more than 3 full days following delivery of the products.

5 8.3 / The client may not initiate nonconformity proceedings more than 7 days after delivery of the products. The client's acceptance of these general terms and conditions of sale implies their acceptance that, following expiry of this period, they may not invoke any nonconformity of the products, nor use it in a counterclaim to defend itself against debt recovery proceedings initiated by our company. Failing compliance with these conditions, the client may not hold our company liable for any defect. 8.4 / Defects and deterioration of the delivered products due to abnormal storage conditions and/or storage on the client's premises, particularly in the event of an accident of any kind, will not result in implementation of our company's warranty. 8.5 / Under the latent defects warranty, our company will only be required to guarantee free replacement of the defective goods; the client will not be entitled to claim damages for any reason whatsoever. 8.6 / Our company guarantees its products against latent defects in accordance with the law, usage, case law, and under the following conditions. Our warranty only applies to products that have duly become the buyer's property. It only applies to products manufactured entirely by our company. It is deemed invalid whenever our products have not been used according to their correct intended use or performance. Our warranty only covers latent defects. As our clients are professionals, latent defect means faulty product manufacture making it unfit for use and unlikely to be detected by the buyer before use. A design flaw is not a latent defect and our clients are deemed to have received all the technical information on our products. We do not cover damage or wear resulting from special adaptation or mounting of our products, abnormal or otherwise, unless this has been done under our supervision. Our warranty is limited to replacement or repair of defective parts. Our warranty is limited to the first twelve months as from the date of handover. Our warranty automatically expires at the end of this period. Article 9 - Force majeure Force majeure or unforeseen circumstances are considered to be any event beyond the control of the parties for which they could not reasonably be expected to make provision, and could not reasonably prevent or overcome, insofar as their occurrence makes it impossible for the parties to honour their obligations. Cases of force majeure or unforeseen circumstances that release our company from its obligation to deliver within the original deadlines include, in particular, full or partial strike of the workforce at our company or at its usual carriers, fire, flood, war, production stoppages due to unexpected breakdowns, inability to obtain supplies of raw materials, epidemics, road closures due to heavy thaw, road blocks, utility company (EDF-GDF) strikes or supply disruptions for reasons not attributable to our company, as well as any other break in supply caused by our suppliers. In such circumstances, our company will notify the client in writing, mainly by fax or , within 24 hours of the date of occurrence of the events; the contract between our company and the client will then be automatically suspended with no compensation as from the date of occurrence of the event. Should the event last longer than 30 days as from the date of its occurrence, the sales contract signed by our company and its client may be terminated by the most diligent party, neither party being entitled to the award of damages. Such termination shall take effect on the date of first delivery of the registered letter with return receipt denouncing said sales contract. Article 10 - Jurisdiction 10.1 / Our company elects its head office as its address for service.

6 10.2 / Any dispute concerning the application of these general terms and conditions of sale, in addition to their interpretation, execution and any sales contracts concluded by our company, or the payment of the price shall be brought before the Commercial Court of our company's head office, regardless of the location of the order or the delivery, or of the payment and payment method, and even in cases of appeal or multiple defendants. Bills of exchange do not constitute a novation or derogation to this clause / The allocation of jurisdiction is general and applies, whether a principle claim, incidental claim, final order or interim order is involved / Moreover, should our company have to initiate any legal action or debt recovery proceedings, the cost of the summons, together with the legal costs and the fees for the attorney and bailiff, in addition to all ancillary costs will be charged to the defaulting client, as will all the expenses related to or arising from the client's noncompliance with the payment or delivery conditions governing the order in question. Article 11 - Waiver Our company's decision not to exercise its rights at a given time in relation to one of the clauses herein shall not constitute a waiver of its right to invoke said clauses at a later date. Article 12 - Applicable law Any queries regarding these terms and conditions of sale and the sales they govern that are not covered by the contract provisions herein shall be governed by French law to the exclusion of any other right, and additionally, by the Vienna Convention on the International Sale of Goods.