Application of general terms and conditions of sale – Enforceability
These general terms and conditions of sale constitute the basis of business negotiations and are systematically sent out or handed over to every purchaser, to enable them to place an order. The fact that the seller does not avail itself at a given time of any of these general terms and conditions of sale shall not be construed as the seller waiving its right to rely on any of these terms and conditions at a later date.
Orders
To be valid, an order must specify inter alia the quantity and reference details of the products sold, together with the agreed price, the payment terms, and the place and date of delivery or collection. Orders shall not be deemed final, even where they are taken via company representatives or employees who are sales staff, until they have been confirmed in writing. Unless otherwise agreed, the order confirmation means that the purchaser has accepted the seller’s terms and conditions of sale, acknowledges that it is fully familiar with these terms, and waives the right to avail itself of its own terms and conditions of purchase. The products or services supplied are not intended for use in any nuclear or nuclear-related applications. Exporting of products outside Member States of the European Union requires the seller’s prior authorisation in writing.
Changes to Orders
Any changes to or cancellation of an order requested by the purchaser can only be considered if they are received in writing before the products have been dispatched. If the seller does not agree to the change or cancellation, payments on account can be refunded only in the form of a credit-note for goods.
Prices
Unless otherwise agreed, the prices appearing in any offers or estimates are valid only for a maximum period of one month. Unless otherwise agreed, the prices quoted shall be taken to mean net prices, excluding carriage costs and taxes, based on the tariffs provided to the purchaser. Any taxes, duties, fees or other charges payable under the regulations applicable in France, or those of an importing country or transit country, are the purchaser’s responsibility. Unless otherwise agreed, any additional services, special packaging, foreign-language documents, batches of spare parts, factory acceptance, maintenance, commissioning and training, do not form part of the commercial offering. Any orders worth less than 300 euros are subject to a fixed surcharge of 80 euros covering administrative costs.
Delivery and Lead-times
Delivery is made in accordance with the order, either by handing over the product directly to the purchaser, or by notifying the purchaser that it is available for collection, or by handing it over to a shipper or carrier on the seller’s premises. Deliveries are made solely on the basis of product availability and in the sequence in which orders have been received. The seller is authorised to make deliveries on either a global or partial basis. Lead-times for delivery are indicated as accurately as possible but are dependent on the options open to the seller in terms of procurement and transportation. If delivery dates are exceeded, the purchaser shall not be entitled to claim damages, withhold payments or cancel any orders in progress.
Risks
Even where sales are agreed on a carriage-paid basis, the purchaser shall bear the risks as soon as the goods leave the seller’s warehouses. It follows that goods travel at the purchaser’s risk, and if they are found to be damaged, lost or missing, it is the purchaser’s responsibility to make known any reservations at the time the goods are received and to confirm such reservations by sending a recorded-delivery letter with acknowledgment of receipt to the carrier, within two days following receipt of the goods, or to exercise any recourse against the carriers responsible.
Acceptance
Without prejudice to the arrangements to be made vis-à-vis the carrier, any claims relating to visible defects or to non-conformity of the product delivered in relation to the product ordered or to the consignment note, must be formulated in writing to the seller within two days after the products have arrived. The purchaser will be responsible for providing any justification regarding the reality of the defects or anomalies noted. The purchaser must lend every assistance to the seller to enable the latter to establish that such defects are genuine and to remedy them. The purchaser shall refrain from intervening personally or arranging for a third party to intervene to this end. Where products are sold in prepacked format, the weights and measurements recorded at the time of dispatch shall be deemed to constitute the quantities delivered.
Product returns
Any products returned shall be the object of a formal agreement between the seller and the purchaser. Any product returned without this agreement will be kept at the purchaser’s disposal and a credit-note will not be issued. The costs and risks associated with returning goods are borne by the purchaser. Returned goods must be accompanied by a RMA, to be attached to the package, and must be in the condition in which the seller delivered them. A credit-note will not be issued until the goods have been received in good condition, unused, and have been checked and accepted by the seller. Unless otherwise stipulated by the seller, any packaging materials for which an additional charge is made are always non-returnable. In the event of any visible defect or non-conformity of the products delivered, which is duly established under the conditions provided for above, the purchaser shall be entitled either to a free-of-charge replacement or to a refund on the cost of the products, at the seller’s choice, excluding payment of any compensation or damages.
Warranty
Products are guaranteed against any defects in materials or manufacture for a period of one year, commencing on the delivery date. Any interventions under the warranty shall not give rise to an extension of its term. The sole obligation incumbent on the seller under this warranty shall be, as it so chooses, either to replace free of charge or to repair the product or any component thereof which it acknowledges to be defective, unless this method of indemnification proves impossible or disproportionately costly. In order to benefit from the warranty, any product must first be submitted to the seller’s after-sales service department, and the latter’s agreement must always be obtained for any replacement. Any carriage costs are payable by the purchaser, who shall not be entitled to claim any compensation if the asset is immobilised as a result of the warranty being applied. The warranty does not cover visible defects. Likewise, it does not cover any faults or deterioration caused by natural wear and tear, or by an external accident, or by a product modification not foreseen or specified by the seller.
Invoicing
An invoice is raised for each delivery and issued at the time thereof.
Payment
Unless otherwise agreed, payment shall be made on presentation at the time of collection or by credit transfer in advance. Where deferred payment or credit terms are agreed to, payment within the meaning of this article shall be understood not simply as handing over a bill of exchange or cheque involving an obligation to pay, but as settlement on the agreed due date. In the event of late payment, the seller shall be entitled to suspend all orders in progress, without prejudice to any action taken in other ways. Any monies not paid on the due date shown on the invoice shall automatically give rise, with effect from the day after the settlement date shown on the said invoice, to the application of penalty charges equal to three times the interest rate set by law. A fixed compensation fee of 40 euros covering collection charges will also be payable. These penalty charges and costs will be payable simply at the seller’s request. If the collection charges incurred exceed the amount of this fixed fee, the seller reserves the right to seek additional compensation, on presentation of the necessary proof. Likewise, where payment is spread over several instalments, non-payment of a single instalment shall result in the full amount of the debt becoming payable immediately. In all of the foregoing cases, any monies payable in connection with other deliveries, or for any other reason, shall become payable immediately if the seller does not opt for cancellation of the orders concerned. Payments shall not under any circumstances be suspended or offset in any way without the seller’s prior agreement in writing. Any part payments shall be applied first to the subordinated part of the receivable, and thereafter to the monies that have been outstanding for the longest period of time. The seller does not grant discounts for any payments made on presentation or earlier than the due date specified in the general terms and conditions of sale. The seller reserves the right, at any time, and depending on the risks incurred, to set a credit-limit for each purchaser and to insist on certain deadlines for payment or certain guarantees. Any deterioration in the purchaser’s credit status may result in the seller demanding certain guarantees before fulfilling the orders received.
Expert reports and Certificates
The seller reserves the right to charge the customer for the cost of any expert reports requested by the latter in connection with returned equipment. Likewise, any certificates of compliance requested by the customer, which require research to be carried out with third parties or call for additional tests, are not included in the tender unless otherwise stated.
Limitation of Liability
The seller’s total liability for any damages, claims or causes of action, regardless of their origin, shall not exceed the Price of the Order. The seller shall not under any circumstances be liable for any loss of profits, increases in costs, loss of income, loss of contracts, loss of use, loss of data, loss of customers or any other indirect losses.
Reserve of ownership
The seller reserves ownership of the goods referred to in this document, until such time as they have been paid for in full, both in terms of principal and interest. If payment has not been made forty-eight hours after a formal notice to perform has been issued but not acted on, the sale will automatically be cancelled if the seller so wishes. The seller shall be entitled to apply to the courts for an interim order instructing that the products be returned, without prejudice to any other damages. Cancellation will affect not only the order in question but also all earlier orders that have not yet been paid for, regardless of whether they have already been delivered or are in the process of being delivered, and whether or not payment is already due. If the purchaser’s company is involved in court proceedings placing it under judicial protection, or in administration or liquidation, the seller shall be entitled to claim ownership of any goods that have been delivered but are not yet paid for.
Jurisdiction – Disputes
In the event of a disagreement regarding the interpretation or performance of their agreements, before taking any legal action, the parties shall endeavour to reach an out-of-court settlement, and to this end, shall provide one another with all necessary information.
If the dispute cannot be settled out of court within a maximum period of 3 months, the courts of Lyon shall have sole jurisdiction to rule on disputes of any kind or disagreements relating to the formation or fulfilment of the order, unless the seller prefers to refer the matter to any other competent jurisdiction.
This clause shall apply even in the event of urgent court proceedings, an additional application or multiple defendants or the introduction of third parties, regardless of the method and terms of payment, and any clauses within the purchasers’ documentation assigning jurisdiction shall not impede the application of this clause.