§1 - Application and Assertibility of the General Terms of Sale
These general terms of sale are sent or given to each Buyer to enable it to place its order.
Placement of an order entails the Buyer's full and unconditional acceptance of these general terms. The Seller's other documents such as flyers and catalogues are for information only and may not be pleaded against it by the Buyer.
No special terms may prevail over the general terms of sale unless the Seller expressly agrees otherwise in writing. No contrary term pleaded by the Buyer shall accordingly be assertible against the Seller, except as otherwise expressly agreed, regardless of when it may have been brought to its attention.
The Seller's failure to enforce these general terms of sale at any time shall not be construed as a waiver of its right to enforce any of said terms thereafter.
§2 - Orders
The orders are definitive only after they are confirmed in writing.
The sales take effect only after express written acceptance of the Buyer's order in the form of an acknowledgment of receipt by the Seller.
An amendment or rescission by the Buyer of its order is allowable only if the Seller expressly accepts it and is notified thereof in writing on a date which is in its opinion far enough before the requested delivery date.
If the Seller does not agree to the amendment or rescission, the payments on account if any are non-refundable. If no payment on account is made, the Buyer will be billed an amount equivalent to 30% of the order as a cancellation penalty.
The Seller may at any time make any change in its products which it deems advisable, and alter the models shown in its flyers and catalogues without notice.
§3 - Prices
The products are supplied at the prices in effect on the date of confirmation of the Buyer's order, as quoted to it before the order was placed.
Specific orders by the Buyer are conditional on its acceptance of a preliminary estimate.
The prices are net, ex works and before VAT.
The Seller renders an invoice to the Buyer when each delivery is made. The amount of no invoice may be less than €50 including VAT.
§4 - Terms of Payment
4.1. Payment Times : Unless otherwise expressly agreed, the payments are made, within thirty days of the tenth day of the month following the month in which the delivery was made, by draft issued by the Seller after opening of an account.
The Seller may require the customer to make a 30% down payment with the order if the buyer's creditworthiness is impaired or if the order requires the seller to incur large expenses.
Payment as the word is used in this section means not the mere delivery of the draft but payment thereof on the agreed date payable.
4.2. Late Charges : Late charges on payments, including VAT, overdue by the Buyer shall accrue automatically to the Seller without formality or prior notice of default at the annual rate of 300% of the legal interest rate. Default in payment shall accelerate the maturity of all sums due by the Buyer to the Seller without prejudice to any and all other action which the Seller is entitled to take against the Buyer on that account.
In event of breach of the foregoing terms of payment, the Seller may without prejudice to any other action also suspend or cancel the delivery of the pending orders and/or suspend the discharge of its obligations and/or reduce or cancel any allowances made to the Buyer.
If a default in payment is not remedied within 48 hours of notice thereof, the Seller may rescind the sale and file a summary petition for return of the products without prejudice to recovery of any and all damages. Not only shall the order in question be rescinded but also all prior orders not paid for, whether or not delivered or in process of delivery and whether or not the price is overdue.
If payment is made by negotiable instrument, failure to return the instrument shall be deemed to be a refusal of acceptance equated with a default in payment. If the payment is made in installments, default in payment of a single installment shall accelerate the maturity of the entirety of the debt without prior notice of default.
In all of the foregoing events, the maturity of the sums due for other deliveries or for any other reason shall be accelerated if the Seller does not elect to rescind the covering orders.
The Buyer shall reimburse all the expenses of litigation incurred to recover the sums due, including attorney's fees.
Payments may be suspended or set off in no case without the Seller's prior written consent. Partial payments shall be applied to the amounts due in chronological order.
4.3. Security or Payment Requirement : Impairment of the Buyer's creditworthiness may justify a requirement of security or of payment down in cash.
4.4. Set-Off : Penalties for late delivery or non-compliance of the products with the order may be set off against the price of the products purchased from the Seller only with its express prior written consent and only if the amounts receivable and payable set off are all accrued, due and payable.
4.5. Conditional Sale Clause : The Seller retains title to the products sold until they are paid for in full, and may repossess them in case of default in payment. Payments on account by the Buyer accrue to the Seller as liquidated damages without prejudice to any and all other actions which it may be thereby entitled to bring against the Buyer.
5.1. Methods : Delivery is made at the Seller's option by direct delivery of the product to the Buyer, by notice of readiness for pick-up, or by delivery to a shipper or carrier on the Seller's premises.
The Buyer shall take delivery within eight days of the notice of readiness for pick-up. Otherwise the Seller may bill it for custodial charges of €100 per diem thereafter.
5.2. Times : The deliveries depend on the availability of the products and are made in order of receipt of the orders. The Seller may make deliveries in whole or in part.
The delivery times are estimated as accurately as possible but depend on the Seller's procurement and transport potential.
Late delivery does not entitle the Buyer to damages, to withhold payments due or to cancel pending orders.
However, if the product is not delivered within one month of the estimated delivery date for any reason other than force majeure, the sale may be rescinded on either party's demand; the buyer is entitled to refund of its down payment but to no indemnity or damages.
Events of force majeure releasing the Seller from its delivery obligation include war, riot, fire, strikes, accidents and procurement difficulties.
The Seller shall promptly notify the Buyer of such events.
In any event, timely delivery may be made only if the Buyer is not in breach of its obligations to the Seller for any reason.
The costs entailed by the Buyer's special requests concerning the packing or carriage of the products which are duly agreed to in writing by the Seller will be billed extra on estimate previously accepted by the Buyer.
5.3. Receipt : The Buyer shall check the condition of the products on delivery. If it does not expressly enter reservations or make complaints in writing concerning patent defects or non-compliance of the delivered products with the order within five business days of the delivery, the products delivered by the Seller shall be deemed to be compliant with the order in quantity and quality.
The Buyer shall have the burden of proof of the defects or imperfections complained of. It shall afford the Seller every facility to ascertain and remedy such defects. It shall not remedy them itself or have them remedied.
No complaint will be entertained if the Buyer breaches its obligations under this subsection 5.3.
The Seller will at its expense promptly replace all products the patent defects in or non-compliance of which are duly proved by the Buyer.
§6 - Transfer of Title and Risks
Title to the products shall be transferred from the Seller to the Buyer only after payment of the price by the Buyer in full, regardless of the date of delivery of such products.
The risks of loss of or damage to the Seller's products shall be transferred when the products leave its premises. The products travel at the risk of the Buyer which may, in event of damage, assert all claims against the carrier as provided by law.
The Buyer shall until the transfer of title accordingly insure such products under an ad hoc policy for the Seller's benefit against the risks of loss and damage due to fortuitous event or otherwise, and supply the Seller with proof of such insurance at its request.
§7 - The Seller's Liability - Warranty
The products delivered by the Seller are, all applicable legal provisions to the contrary notwithstanding, warranted for 12 months from the date of delivery against all latent defects and defects in materials, design or manufacture affecting the products which make them unfit for use. Said warranty period is not extended by services rendered by the Seller pursuant to the warranty.
All warranties are avoided in case of improper use, negligence or faulty maintenance or storage by the Buyer, any alteration of or work on the original product, disregard of the installation, use and maintenance instructions, normal wear or force majeure.
In order to exercise its rights, the Buyer must, on pain of loss of all rights of action related thereto, inform the Seller in writing of the defects and supply it with proof thereof within 15 days of the discovery thereof.
The Seller may either replace the warranted products which are found to be defective or have them repaired.
§8 - Industrial and Intellectual Property Rights
The Seller retains title to all of the intellectual and/or industrial rights and know-how to which the Buyer may have access in connection with the execution of the order.
The expenses entailed by studies made at the Buyer's request not followed by an order are incumbent on it. The media shall be returned to the Seller.
§9 - Litigation
All litigation to which this contract may give risk concerning its validity, interpretation, performance or cancellation, or the consequences thereof or of transactions and proceedings appurtenant thereto, shall be subject to the exclusive jurisdiction of the Valence District Court sitting as a commercial court.
§10 - Language of the Contract - Governing Law
This contract is governed by and subject to French law.
A translation into English, Spanish and German has been made. However, in case of conflict, the French-language version shall prevail.
§11 - The Buyer's Acceptance
These General Terms of Sale are expressly approved and accepted by the Buyer, which acknowledges perfect familiarity therewith and accordingly waives the benefit of any conflicting documents, including its own general terms of purchase, which are not assertible against or binding on the Seller even if it is aware thereof.