1.1 The present general terms and conditions (GTCT) apply to the sale of all products, equipment, materials, spare parts, software and any services (Goods) offered or provided by the Seller (Seller) to the Purchaser (the Purchaser), and more generally to the commercial relations between the Seller and the Purchaser, despite any clause contrary to any general conditions of purchase of the Purchaser. In the absence of any written claim on the part of the Purchaser prior to the delivery of the Goods, this one shall be deemed to have read and accepted these GTCT
1.2 For the need of these GTCT, the Seller shall designate Aveine and/or any company controlled directly or indirectly by Aveine, controlling meaning the management of the company, whether this management is exercised through contracts, statutes or by any other means.
1.3 No clause or condition contained in orders or any other document issued by the Purchaser shall be binding on the Seller, even in the absence of express rejection of such documents by the Seller. Only these GTCT, together with the Seller's specific conditions contained in its order confirmation (Order Confirmation) and other documents clearly referenced and incorporated herein, constitute the entire Contract between the Purchaser and the Seller, and shall prevail, in their entirety, on all other contradictory terms and conditions proposed by the Purchaser as well as on any oral or written communication which would not be expressly incorporated in present.
1.4 In the absence of a contrary clause, the Seller's documentation, catalogues, price lists and quotations are only sent for guidance and should not be considered as contractual. In the absence of an order confirmation signed by the Seller, the Seller's offers have no contractual value.
1.5 Unless otherwise agreed and written by the Seller, no change to these terms and conditions shall be made to the Seller, whether indicated in the Purchaser's purchase order or in any other document, including shipping documents.
1.6 The return of the Order Confirmation signed by the Purchaser or, where applicable, the failure to reject this Order Confirmation within 7 (seven) days of receipt by the Purchaser, shall result in the acceptance by the Purchaser of these GTCT
1.7 The non-exercise of all or part of any of its rights by the Seller is in no way constituting an abandonment or renunciation of that right.
1.8 If it appears that certain provisions of these GTCT are void, inapplicable or contrary to the law in whole or in part, or may not be applied for any reason whatsoever, the other provisions of these GTCT shall remain unchanged.
1.9 The special provisions of an Order Confirmation, a written agreement between the Purchaser and the Seller on specific clauses, which may be in conflict with the present GTCT, shall prevail over the provisions of the corresponding GTCT.
2. PRICE – PAYMENT
2.1 Unless otherwise expressly provided in an Order Confirmation, the prices shall be payable net cash and the Purchaser shall pay in excess of all taxes and all costs of transportation, insurance, shipping, storage, handling, and other similar charges. Any increase in these charges that would become effective after the date of the Order Confirmation will be the sole responsibility of the Purchaser.
2.2 Invoices are payable net cash without deduction, within 30 days from the date shown on each corresponding invoice.
2.3 In the event of the Purchaser's bankruptcy or winding-up proceedings, the Seller shall not be bound by the abovementioned payment period and the payment shall be counted either before the shipment of the Goods or before its manufacture.
2.4 In the case of non-payment on the due date, the Purchaser shall pay, as of right and without prior notice, an interest in delay at the legal rate (but in any event equivalent to at least EURIBOR + 3% on the date of the invoice), from the date of expiry of the invoice, without prejudice to any other rights of the Seller. In the event of late payment or execution of any of the obligations of the Purchaser, or in the event that the Seller would feed doubts about the solvency of the Purchaser, and where the Purchaser would not be prepared to make a cash payment in advance or to provide to the Seller any guarantees requested, the Seller shall be entitled to unilaterally annul the contract in whole or in part; as a result, all sums owed and payable by the Purchaser, including sums not yet maturing, will become immediately chargeable, without the Seller having to resort to a prior formal notice.
2.5 The Seller shall have the right to offset the debts of the Purchaser and/or to impute his payments to unliquidated invoices after more than thirty days plus any accrued interest and associated late fees, in the following order: fees, interest, invoice amounts.
2.6 The Purchaser may not delay any of the payments owing or make any compensation, even in the event of a dispute with the Seller. If the Purchaser is in a late payment situation, the Purchaser will be able to take any action (sales or processing) which may modify the Goods.
3. RISK TRANSFER – DELIVERY – SHIPPING – VAT
3.1 In the absence of a different special provision, the transfer of risks to the Goods will take place at the Seller's factory, before loading. In the case of the use of Incoterms, the risk will be transferred to the Purchaser in accordance with the applicable Incoterm (Delivery). If the Purchaser does not take delivery of the Goods on the agreed date, the Seller may store it at the Purchaser's risk and expense and, after notification of its availability, invoice it as having been delivered. In any circumstance, the Seller retains the right, without particular information, to resell the Goods and to introduce the corresponding claim for damages.
3.2 In the absence of different provisions specified in an Order Confirmation, the Goods are sold ex-factory of the Seller. The Purchaser shall, under his or her responsibility, provide sufficient advance notice of any relevant information to the Seller to enable the latter to take the necessary measures concerning the consignment, and in particular (a) the labelling instructions and of dispatch, (b) the documents and import certificates required for obtaining the necessary governmental authorizations and any other documents before the shipment of the Goods and (c) the confirmation by the Purchaser, if necessary, that the latter had a letter of credit opened or established. If the Seller does not receive the aforementioned instructions, documents or confirmations as appropriate, or if such instructions, documents or confirmations should (at the Seller's sole discretion) result in unreasonable costs or delays on his part, the Seller may, at his or her whim and without prejudice to any other remedies, delay the date of dispatch and/or cancel the said contract.
3.3 The delivery dates of the Seller shall not be binding on the vendor, and delays in delivery shall not be open to the Purchaser for damages for such delays. Delivery delays will only allow the Purchaser to cancel the relevant order form of the Goods not yet put into manufacture and only after giving the Seller a reasonable grace period to enable him to remedy the delay. Without prejudice to the restrictions of liability contained in article 5 below, the obligatory delivery times shall not be open to the Purchaser for damages unless the Seller has been fully informed in writing when the conclusion of the contract, possible losses and damages due to the delay of delivery and a specific estimation of the various elements concerned. In any case, in the event of a delay in production, the Seller is authorised not to deliver the whole quantity ordered by the Purchaser in a single delivery, but can deliver the order in several successive partial deliveries.
4. CHECKING THE GOODS
Upon delivery of the Goods, the Purchaser must carry out a complete verification of the Goods in order to verify the packaging, the weight and the quantities as complying with the Order Confirmation. Any apparent damage to the packaging of the Goods or Merchandise itself, or any missing quantity, must be noted and communicated promptly to the Seller in writing by fax or e-mail. The Goods will be automatically deemed to be accepted on delivery if the Purchaser makes no written claims concerning the said Goods within seven (7) days of delivery and in any case before the Goods are subjected to any transformation. No claim shall be receivable by the Seller in respect of any defects, deficiencies, missing quantity and/or improper Merchandise at his destination as specified on the order, which a normal check should have revealed, in case the said audit was not conducted or was conducted improperly. In the event of a Purchaser's claim, the Purchaser shall allow the Seller or his duly authorised representative to carry out an inspection of the Goods.
5.1 The Seller only warrants that the Merchandise will conform to the specifications contained in the order Confirmation. The Seller makes no other warranties, express or implied, as to the market value of the Goods, their suitability for use or otherwise.
5.2 The Purchaser shall have communicated to the Seller sufficiently in advance the technical specifications or any information necessary for the proper elaboration of the specifications contained in the Order Confirmation, as well as to the correct processing and/or final use of the Goods. The Seller acknowledges that the Seller's compliance obligation is fulfilled once these specifications have been met at the time of delivery.
5.3 Any technical advice given by the Seller, before and/or during the use of the Goods, whether such advice is provided verbally or in writing or through testing, shall be given in good faith but without any guarantee on the part of the Seller. The Seller's advice shall not relieve the Purchaser of his obligation to test the Goods supplied by the Seller in order to verify that he is well suited for the intended processing and/or use. The use and processing of the Goods are undertaken at the Purchaser's exclusive risks.
6.1 The Seller shall not be liable for any damage caused by the Goods to other Goods or products for professional use which may be used by the Purchaser and/or by its sub-acquirers.
6.2 The Purchaser shall not invoke the Seller's liability for compensation for direct and/or indirect damages caused by the use, transport, storage or use of the Goods contrary to the specifications or Safety Data sheets for the Merchandise. As a result, the Purchaser waives any right of action against the Seller and its insurers and undertakes to obtain such renunciation from its own insurers.
6.3 The Purchaser hereby declares that he will carry out all mandatory tests and all tests which he considers useful and that he shall make all decisions concerning the use of the Goods. In case of doubt, the Purchaser is advised to request the Seller's opinion. However, the Seller's advice can only be a reflection of his own experience and is given only as an indication. As such, it cannot under any circumstances incur any liability of the Seller.
6.4 Defects not detectable on delivery must be notified in writing to the Seller as soon as they are discovered, but in all cases not more than three months after delivery (the Purchaser having the obligation to carry out a complete verification of the Goods at Three-month period).
6.5 In any event, the Purchaser shall limit its damages to the maximum. The Purchaser is not allowed to delay the payment of outstanding invoices due to the non-conformity of the Goods, whether this non-conformity is alleged or proven.
6.6 If the Seller acknowledges that the Goods are defective, then they shall be solely obliged, in their sole discretion, to either (i) replace or reimburse the defective Goods, or (ii) if the price has not yet been paid by the Purchaser, to proceed to a reduction in the price or to cancel the said contract, or (iii) if the price has already been paid by the Purchaser, to repay the amount of the price to the Purchaser.
6.7 IN NO EVENT SHALL THE SELLER BE LIABLE FOR ANY LOSS OF PRODUCTION, EXPLOITATION, EXPENSES, LOSS OF REVENUE AND/OR ANY OTHER LOSS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, DIRECTLY OR INDIRECTLY SUFFERED BY THE PURCHASER OR BY ANY OTHER PERSON. ACCORDINGLY, THE PURCHASER WAIVES ANY REMEDY AGAINST THE SELLER AND HIS INSURERS AND UNDERTAKES TO OBTAIN SUCH WAIVER BY HIS OWN INSURERS.
6.8 THE SELLER SHALL BE LIABLE ONLY FOR DAMAGES CAUSED BY HIS GROSS NEGLIGENCE OR BY A PROFESSIONAL FAILURE TO PROVE THE Purchaser.
7. PROPERTY RESERVE
7.1 The Goods supplied shall remain the property of the Seller until complete satisfaction is satisfied by the Purchaser of all his payment obligations.
a) If the Goods are processed, associated and/or mixed by the Purchaser with other Goods belonging to him, then the Seller is the sole owner of the new Goods.
b) If the Goods are processed, associated and/or mixed by the Purchaser with other Goods belonging to other suppliers, then the Seller enjoys a right of co-ownership with the said suppliers on the total value of the new Goods. In this case, the Seller's property will be calculated on the basis of the ratio between the invoiced value of the Goods and the invoiced value of all the Goods used to manufacture the new Goods.
7.2 As long as the Purchaser is not defective and as long as he reserves his property rights, the Purchaser is exclusively authorized to resell the Goods in the ordinary course of his business. The use of the Goods for the purposes of the execution of contracts of services and contracts of works and materials is here considered as a resale.
7.3 The Purchaser's receivables resulting from the resale of the Goods are already transferred, for warranty reasons, exclusively to the Seller. The Purchaser is entitled to collect the receivables resulting from the resale, unless the Seller withdraws the automatic debit authorization in case of doubt about the creditworthiness of the Purchaser and/or his financial credibility, or if the Purchaser is delayed on any of his payments. In the event that the Seller withdraws the automatic debit authorization, the Purchaser is obliged to (i) immediately inform his customers of the assignment of the receivable to the Seller, (ii) immediately inform his customers that the Goods belongs to the Seller (iii) and to give the Seller all necessary information and documents in order to establish and confirm the Seller's rights with regard to third parties. The Purchaser obliges to inform the Seller without delay of any action or defence of interests that third parties undertake and which could adversely affect the Goods.
7.4 The Purchaser shall have sole responsibility and bear all risks and costs in connection with the unloading, correct handling and proper storage of the Goods and/or the new Goods in accordance with the provisions of article 7.1 above. In addition, the Purchaser undertakes to (i) purchase general liability insurance at his own expense, including coverage of the deterioration and/or theft of all or part of the Goods and/or new Goods and (ii) provide the Seller, upon request, with a certificate confirming both the insurance coverage and the payment of the related prime.
8. CONFIDENTIALITY – INTELLECTUAL PROPERTY
8.1 Any verbal or written information provided by the Seller to the Purchaser concerning concepts, ideas, strategies, procedures, processes, specifications, documents, plans, calculations, drawings, and all objects, samples, specimens of the Seller including its know-how, intellectual property, and all elements of legal, technical or commercial information, documents and databases (the information) shall be treated as strictly confidential information by Purchaser and shall not be communicated to any third party by the Purchaser without the prior written consent of the Seller. This Purchaser's confidentiality commitment will remain in effect for the duration of the execution of the order concerned and for at least 10 years following the date of disclosure of the information to the Purchaser. Such information shall be used exclusively by the Purchaser for the purpose of the execution of the order concerned.
8.2 The Purchaser agrees to respect the information and all intellectual property rights of the Seller.
8.3 The Seller shall retain ownership of all information which may be applied in connection with the provision of services or studies, the research and development work, and any technical assistance provided to the Purchaser. The Purchaser agrees to return the aforementioned items to the Seller as soon as possible upon written request of the Seller.
8.4 Property rights and copyrights on all plans, drawings, samples, marks, logos, and other documents delivered or communicated to the Purchaser by the Seller shall also remain the exclusive property of the Seller. Such confidential information shall at no time be communicated to third parties without the prior written consent of the Seller.
8.5 In the case where the Goods are modified, processed, incorporated or incorporated by the Seller in accordance with the Purchaser's processes, plans, specifications, drawings and/or instructions, and where the rights of a third party (in particular rights resulting from patents or other protective rights) are violated by such modifications, transformations, incorporation or integration of the Goods, the Purchaser shall indemnify the Seller against a possible remedy of such third party.
Unless otherwise provided, the Purchaser shall be responsible for the supply of the packaging materials and the means of protection and safety used during the transport of the Goods. In the event of the Purchaser's failure to comply with this obligation, and if this breach involves the Seller's liability for any danger or damage whatsoever, the Purchaser shall keep the Seller free from liability for such danger or damage.
10. FORCE MAJEURE
10.1 The party who is the victim of force majeure shall immediately inform the other party in writing of the case and provide him with all relevant information relating to this case of force majeure.
10.2 Cases of force majeure include (but are not limited to) the following events: War (declared or not), accident, fire, flood, storm, delay in transport, equipment failures, change of laws, decrees, regulations, standards or orders emanating from any body or administration, labour dispute or strikes suffered by the Seller, or any cause or event which the Seller cannot reasonably control, or precluding the normal performance of the obligations of the Seller and/or his Subcontractors as a result of an event whose occurrence was not reasonably foreseeable.
10.3 If a case of force majeure affects the Seller, he shall not be held liable for non-performance of his contractual obligations. In addition, the Seller will be allowed an additional reasonable time to carry out his obligations, and shall have the right to distribute his production among his customers as he deems fair.
10.4 Any case of force majeure which prevents the use of the Goods ordered or which would reduce the Purchaser's requirements in Goods does not authorise the Purchaser to suspend or delay the payment of the ordered Goods or to terminate all or part of the/info order (s) concerned.
The Seller shall have the right to terminate any contract or order with immediate effect in the event of significant changes affecting the trade relations between the parties and making the execution of the contract or order without any economic interest to him.
12.1 In the event of the Purchaser's failure to fulfil his obligations arising out of a provision of a contract or an Order Confirmation, the Seller shall be authorized, by written notification addressed to the Purchaser, and without prejudice to any other remedies, to terminate all or part of the contract or order concerned without any liability. In addition, the Seller shall be authorized to be reimbursed by the Purchaser for all costs and costs incurred by the Seller as a result of this, and to claim compensation for any loss or damage suffered by the Purchaser as a result of the delay in execution or non-performance by the Purchaser of the concerned contract or order. In addition, the Seller will be released from any exclusivity and/or confidentiality commitments established towrds the Purchaser.
12.2 The Seller shall have the right to terminate any contract or order with immediate effect without any liability on his part if he has good reason to believe that the Purchaser will be in the near future in the inability to normally satisfy the whole of its obligations.
The Purchaser shall not assign any contract, order or right arising hereunder, nor any receivable owed by the Seller to a third party without the prior written consent of the Seller.
14. JURISDICTION-APPLICABLE LAW
14.1 All contracts and orders shall be governed and construed exclusively according to the law of the Seller's place of registration. The United Nations Convention of 1980 on Contracts for the International Sale of Goods will not be applicable.
14.2 Any dispute arising in connection with an order or contract shall be exclusively the responsibility of the competent courts of the Seller's place of registration. However, the Seller reserves the exclusive right to bring a dispute concerning the Purchaser before the competent courts of the Immatriculation place of the Purchaser.
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