GENERAL TERMS AND CONDITIONS FOR THE SALE AND SUPPLY OF GOODS AND SERVICES
POUCHARD TUBES ET BARRES,
36 rue Denis Papin, ZI de Mitry-Copans, 77290 Mitry-Mory,
Capital 1.000.000,00 Euros,
849 442 132 RCS Meaux
ARTICLE 1 – GENERAL CLAUSES
The present General Sales Terms and Conditions (hereinafter the « GTC ») shall apply to the company POUCHARD TUBES ET BARRES, its agents or representatives (hereinafter the « Supplier ») to all customer (hereinafter the « Customer ») regarding the sale and supply of all materials, objects, components and services (hereinafter the « Product »).
Any order placed with the Supplier implies that the Customer has read and fully and unconditionally accepted the GTCs. The implementation of the Customer’s Terms and Conditions of Purchase shall be excluded and deemed automatically null and void even if they are referred to by the Customer in his purchase order unless of a specific prior agreement in writing is made between the Supplier and the Customer (hereinafter the “Parties”).
The full and entire acceptation of the GTC by the Customer as well as of the Supplier’s specific provisions contained in his offer, acknowledgement of receipt of order accompanied when appropriate, of any document expressly referred to in the acknowledgment of receipt of order, constitute the entire agreement between the Parties (hereinafter the « Contract »), to the exclusion of any other document and in particular catalogues, leaflets, advertisements, notices, which are only informative and indicative, and bear no contractual value.
The GTC are available on the https://www.pouchard.fr/ website, which may be modified at any time without notice. These amendments are binding on the Customer who must thus refer regularly to this website in order to verify the GTC in force. The latest printed version of the GTC will be sent to the customer free of charge upon request.
ARTICLE 2 – COMMERCIAL OFFER AND ORDER
2.1 – Commercial offer
The Supplier’s commercial offer is valid for a time period of two (2) weeks from their issue unless stated otherwise in the commercial offer. If necessary, it is preferable for the Customer to communicate to the Supplier precise specifications concerning his needs in order to enable the Supplier to make as precise offers as possible, in particular but not only in the event of the sale of custom-made or "turnkey" products.
2.2 – Order
Order shall only be final when it has been confirmed in writing by the Supplier in the form of an order acknowledgement on the one hand, and the grant of a coverage by the Supplier’s credit-insurer on the other hand. An order thus accepted shall not be amended by the Customer in full or in part during its implementation without the Supplier’s prior written consent.
Any partial or total cancellation of a pending order is impossible and will not be accepted by the Supplier.
Any information and/or specification, price and/or fare indicated in the Supplier's catalogues and/or documentation are for information purposes only and will only be binding on the Supplier upon its written confirmation through the acknowledgement of receipt of the order.
No order can be made for a total amount lower than 150 euros.
In the event that the Customer places an order with the Supplier without having paid the previous order(s), the Supplier may refuse to fulfill the order and deliver the Products concerned without the Customer being entitled to claim any compensation for any reason whatsoever.
ARTICLE 3 – PRICE AND PAYMENT TERMS
3.1 – Price
Price of the Product shall be as stated in the Supplier’s order acknowledgement. Unless the acknowledgment of receipt of the order stipulates another special condition expressly agreed by the Supplier, all prices shall be net, in euros and without discount for goods at disposal with cash payment at collection. The price can be adjusted by the Supplier according to the economic conditions on the day of delivery.
Intra-Community supplies will be invoiced VAT free in accordance with Article 262 Ter-1 of the General Tax Code.
Unless otherwise stipulated in the acknowledgement of receipt of the order, our offer shall be deemed to be made Ex-Works (Incoterm 2010). All taxes, custom duties or other duties or fees in connection with the execution of the Agreement shall be borne solely by the Customer and are not included in the price.
3.2 – Payment Terms
Unless the acknowledgment of receipt of the order form stipulates another special condition expressly agreed by the Supplier, payment shall be made by the Customer no later than 45 days after the end of the billing month, by cheque, bank transfer or bill of exchange in the currency stipulated.
The payment is net of any deduction, withholding or other charge.
Unless otherwise provided by public policy, payment default of all or part of the price by the agreed due date shall render immediately payable all invoices or bank transfers not yet due for all outstanding orders and all outstanding orders on pro forma invoices.
This default payment of whole or part of the price at the due date shall lead to the following results, and without prior formal notice, in accordance with Article L. 441-6, I of the French Commercial Code:
- Late penalty fees which shall be applicable immediately to the Customer on the amount owed at a rate equal to the interest rate applied by the European Central Bank to its most recent refinancing operation plus 10 percentage points; any interest shall accrue from the date on which the disputed amount becomes due without the need for a reminder;
- Any delay in payment will also give rise to the payment by the Client of a lump sum compensation for recovery costs in the amount of EUR 40.00;
- The Supplier may request compensation from the Customer if the collection costs actually incurred exceed this amount in particular banking, protest and stamp charges, upon presentation of supporting documents.
By way of liquidated damages in accordance with the provisions of the French Civil Code, and without prejudice to any other damages, the Customer is to reimburse the Supplier of all expenses incurred to obtain the unpaid amounts, without any prior notice.
The Supplier uses a credit-insurer and thus reserves the right to receive, at any time, cash payments and/or the provision of guarantees and/or shorter payment terms from the standard conditions, in the event the credit granted to the Customer by the credit-insurer is insufficient to cover the outstanding amount.
In the absence of payment by the Customer, and eight (8) days after a formal notice by registered letter with acknowledgement of receipt has remained without effect, the Seller may terminate or suspend the performance of all or part of the Contract with immediate effect to the exclusive fault of the Customer. The Seller shall notify the Customer of his decision by any means and the goods shall be made immediately available to the Seller.
ARTICLE 4 – DELIVERY AND CLAIMS
Unless otherwise expressly agreed in writing by the Supplier and included as a special condition in the acknowledgement of receipt of the order, all Products shall be delivered Ex-Works, i.e. the transfer of risks to the Customer shall take place at the Supplier's factory, before loading the Products, in accordance with the Incoterm "Ex-Works" (Incoterm 2010).
Delivery dates indicated by the Supplier are given as a general guide only and are not binding. Delays shall neither give ground for cancellation of the order or termination of the Contract, nor give rise to a right to compensation or to the reduction of the price. It shall be the duty of the Supplier to inform the Customer as soon as possible of this delay.
If the shipment of the goods is delayed due to the Customer, a provision invoice may be issued payable within the same period as if the goods had been shipped on the date stipulated in the contract.
If the Customer does not take delivery of the Products after notification of availability, an amount equal to 1% of the value of the Products will be due by the Customer to the Supplier per month of delay as storage costs.
Any liquidated damages for late delivery not expressly agreed in contractual documents listed in Article 1 hereof shall be excluded. In the event that liquidated damages have been agreed, these shall be deemed to be of a lump-sum nature and full discharge of any other compensation.
In the absence of a contradictorily signed delivery note by both Parties, to be valid, claims relating to apparent defects, the composition and quantity of the Product delivered, or any non-conformity with the delivery form shall be made within eight (8) days of delivery of the Products, without prejudice to the measures to be taken vis-à-vis the carrier, failing which they will be declined. Claims must be issued before any transformation.
The Customer shall provide all justifications as to the reality of the defects or missing parts noted.
The unreserved receipt of the Products ordered by the Customer covers any apparent defects and/or missing Products. The submission of a claim shall not entitle the Customer to suspend payment of the invoice corresponding to the Product concerned or to reduce its price.
No Product shall be returned to the Supplier without its prior consent. Returns should, in this case, be made carriage free DAP ("Delivered at Place" Incoterms 2010) to the address indicated by the Supplier. The Supplier shall not be liable for any loss or damage of a package returned. In the latter case, the defect cannot be proven nor the non-conformity demonstrated.
When, after checking, an apparent defect or missing item is actually found by the Supplier, the Customer may only request the Supplier to replace the non-conforming Products and/or to make up for the missing items at the latter's expense, without the Customer being entitled to claim any compensation or the cancellation of the order.
Unless otherwise provided, the Supplier reserves the right to make partial deliveries and invoice them separately.
ARTICLE 5 – SCOPE OF DELIVERY AND CUSTOMER OBLIGATIONS
In accordance with the regulations in force, any sale or supply of the Products is subject to legal guarantees.
The Supplier’s liability is strictly limited to the supply of Products in accordance with contractual specifications.
In no event shall the Supplier be liable for the conformity of the Product for the use of which the Customer intended it. Only the conformity of the Product with the contractual specifications shall be guaranteed. Any technical advice provided by the Supplier orally, in writing or by testing, before and/or during the use of the Products shall not constitute in any way an undertaking by the Supplier or be interpreted as demonstrating the existence of an obligation of the Supplier to provide advice to the Customer.
The Customer undertakes to communicate and facilitate access of any information (if possible in electronic form) and document necessary for the Supplier to fulfil his obligations within the best conditions and within the time limits foreseen, clearly define his needs and provide quality, documented and exhaustive data within the required time limits and to cooperate actively and permanently with the Supplier.
ARTICLE 6 – WARRANTY
The Supplier warrants that the Products comply with the contractual specifications. Deviations in quantity and quality shall be permissible within the limits of current standards applicable or common practice. The Products shall be deemed delivered notwithstanding any reasonable weight deviation resulting from customary tolerances resulting from the production tools’ capabilities of the manufacturer of the delivered products.
The Customer shall provide proof that the Products supplied under the Contract do not comply with the contractual guarantee and shall notify the Supplier in writing within five (5) working days of the discovery of the non-compliance or defect. In this case, if the defect is proven, the Supplier reserves his right to proceed directly or indirectly to any observation or on-site verification and will, at his choice either replace the non-conforming Products at his own expense or reimburse the Customer in the form of a credit note for the value of the invoiced price, to the exclusion of any other remedy.
The following defects are excluded from the present warranty:
- Defect resulting from abnormal use by the Customer and/or due to a negligence in handling, storing or installing the Products without compliance with the specifications and instructions of the Supplier and/or normal usage;
- Defect due to the repair or modification of the Products by the Customer himself or by any third party without the prior written consent of the Supplier;
- Defect not existing at the time the Products were sent by the Supplier.
ARTICLE 7 – LIABILITY AND INSURANCE
The Supplier declines all liabilities for any transformation work carried out on the Products outside his factories.
In the event the Supplier is held liable, notably with respect to the supply of Products, the performance of the Contract, the Supplier’s negligence or any other reason, this liability shall be limited to compensation for damages up to the amount equal to the value of the Product subject to improper performance or non-performance and may not exceed a maximum of €45K per order giving rise to a claim unless expressly agreed by the Supplier. The Supplier shall only be liable for damages to material and direct property and solely in case of fault of the Supplier proven by the Customer. The Supplier shall in no event be liable for damages resulting from the fault and/or negligence of the Customer and/or a third party.
the Supplier’s liability is expressly excluded for any indirect and/or consequential and/or non-consequential (within the meaning of insurance law) and/or financial damage and/or loss suffered by the Customer or a third party; such as, but without being limited to, an action brought against the Customer by a third party, a loss of profit, an operating loss, a loss of production, a loss of turnover, a loss of data, a loss of a right, interruption of a service provided by a person or property, damage to the brand image, loss of an opportunity etc. Any action by the Customer related to a Product shall be time-barred one year after delivery or at the latest on the date of expiry of the contractual warranty period of this Product.
ARTICLE 8 – HARDSHIP AND FORCE MAJEURE
8.1 - Hardship events
Each Party declares that it expressly and knowingly waives his right to avail itself of the provisions of Article 1195 of the French Civil Code. The Parties undertake to assume their obligations even if the contractual balance is disrupted by circumstances that were unforeseeable at the time the contract was concluded, and even if their performance would prove excessively onerous, and to bear all the economic and financial consequences.
8.2 - Force Majeure
Any event beyond the debtor's control and reasonably unforeseeable at the time the Contract was formed and which the Parties were unable to avoid or overcome at the time of its occurrence, rendering impossible the total or partial performance of the obligations provided for in the Contract (in particular but not limited to a production shutdown, a shortage of equipment, raw materials or labour, a transport interruption, a fire, a flood, a manufacturing accident etc.) are considered as grounds for exemption from the Parties' obligations. In the case of such an event, the victim Party shall immediately inform the other Party by telephone or e-mail and this shall be followed by confirmation by a registered letter with acknowledgement of receipt.
If the event is only temporary, the effects of the Contract shall be suspended until the situation is restored to normal and the Supplier reserves the right to temporarily suspend the delivery of the Products ordered by the Customer.
If the force majeure event which obliges the Customer to suspend the performance of his obligations exceeds thirty (30) days, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer by registered letter with acknowledgement of receipt, without compensation from either Party as a result of such termination.
ARTICLE 9 – RETENTION OF TITLE
In accordance with the provisions of Articles 2367 and following of the French Civil Code, the Supplier shall retain full ownership of the Product until actual payment of the full price to the Supplier.
The delivery of drafts or securities creating an obligation to pay shall not constitute payment under this clause.
From the date of availability of the Product delivered Ex-Works, the Customer assumes the liability for any damage that this Product may suffer or cause for any reason whatsoever. Until full payment, the delivered Products will be consigned in storage, the Customer agrees to store the Products in good conditions of conservation and in such a way that they cannot be confused with other Products and to preserve the identification marking as the property of the Supplier intact.
If any of the Customer’s payment is overdue the Supplier reserves the right to request for the return of all the Products delivered at the Customer’s expense, risk and peril, without prejudice to any other right in particular his right to cancel ongoing sales. He may be compelled to do so by a simple summary order.
Nevertheless, the Customer shall be entitled to resell and process the Product under the following conditions:
- The Customer may resell the supplied Products within the scope of his usual business practice but may not pledge them or transfer the ownership as a guarantee. These Products are non-seizable;
- The Customer may also process the supplied Products within the scope of his usual business practice. In case of processing, the Supplier acquires ownership of the Products resulting from the processing for the purpose of ensuring the Supplier’s rights. In the event of seizure or other intervention by a third party, the Customer shall notify the Supplier immediately;
- The resale and processing authorization will automatically and immediately be withdrawn in case of the Customer's insolvency or default of payment.
In case of sale and/or delivery of the Product, either without or following processing or combination, the Customer shall be required to inform the Purchaser of the Products of the existence of the retention of title clause and provide the Supplier with any details and documents necessary for the assigned debts to be collected.
ARTICLE 10 – ASSIGNMENT AND SUB-CONTRACTING
The Supplier shall be entitled to assign all or part of his rights and obligations arising out of this Contract with the Customer to a third party of his choice.
The Customer shall not, under any circumstances, transfer his rights and obligations under this Contract without the Supplier’s prior express consent.
The Supplier reserves the right to use subcontractors for the performance of the Contract without the prior information and consent of the Customer, which the Customer acknowledges and accepts. The latter shall not sub-contract all or part of his rights or obligations under this Contract to a third party without the prior consent of the Supplier.
ARTICLE 11 – TERMINATION AND RESOLUTION
In case of material breach by the Customer of his contractual obligations, the Supplier may send a formal notice to perform by registered letter with acknowledgment of receipt and, after fifteen (15) days or any other period indicated in the acknowledgement of receipt of the order form, if the prior formal notice to perform has remained unanswered, notify by a second registered letter with acknowledgment of receipt of the termination of the Contract and/or the cancellation of the current order immediately and by right (de plein droit).
Beyond the above, the Supplier reserves the right to prematurely terminate the Contract without the Customer being entitled to claim compensation of any kind whatsoever, in the following cases:
- In case of force majeure as defined in Article 8.2 ;
- In the event of any change in the legal situation of the Customer such as liquidation, death, or insolvency;
- In the event of non-payment as provided for in Article 3 or any serious breach by the Customer.
In case of resolution or termination agreed by the Supplier of all or part of the Contract, for a reason mentioned in this Clause or in agreement with the Supplier, the Product already manufactured or being manufactured and the costs and expenses already incurred for the Contract, shall be paid by the Customer.
ARTICLE 12 – CONFIDENTIALITY AND INTELLECTUAL PROPERTY
The Customer undertakes to treat as confidential all technical and commercial information and documents as well as all objects entrusted to him by the Supplier and which remain the exclusive property of the Supplier (who is the sole owner of the intellectual property rights) and is prohibited from disclosing and/or transmitting them in any way whatsoever to third parties, except with prior written consent of the Supplier.
The Customer shall not disclose his business relationship with the Supplier except with prior written consent of the Supplier.
ARTICLE 13 – LANGUAGE OF THE CONTRACT - APPLICABLE LAW - DISPUTE SETTLEMENT
Only the French version of these GTC shall be binding between the Parties, regardless of any translations made. This English version was created for convenience purposes only.
Any dispute relating to the application interpretation and performance of these GTC as well as the sales governed by them which are not covered by these contractual provisions shall be governed by French law to the exclusion of any other law. The application of the Vienna Convention on International Sale of Goods (CISG) and international conflict of law rules are explicitly excluded.
Any differences that may arise between the Parties with regard to the interpretation or execution of these GTC shall be subject to an attempt of an amicable resolution between the Parties.
In the event of failure of the amicable resolution, the dispute shall be brought before the Commercial Court of the jurisdiction where the Supplier's registered office is located, with the express exclusion of any other, even in case of a warranty claim or multiple defendants. However, the Supplier reserves the right to submit any dispute before the Commercial Court of the location of his concerned facilities.
ARTICLE 14 – WAIVER
The fact that the Supplier does not at any given time invoke any of the provisions of these GTC shall not constitute a waiver of the right to invoke these same provisions at a later date.
ARTICLE 15 – MISCELLANEOUS
The Customer warrants that he complies and will comply with anti-corruption laws and legal provisions.
The Customer undertakes to comply with ethical rules and acknowledges that the Product may be subject to applicable EU and US export control restriction laws and regulations. The Supplier shall not be liable in the event of re-export by the Customer of the Products to a final destination prohibited by applicable laws or regulations in force.
If any provisions of these GTC or any part thereof are found to be null and void under any rule of law, those provisions shall be deemed unwritten, but shall not invalidate the other provisions of these GTC which shall remain in force between the Parties. If necessary, any stipulation that is declared null and void shall automatically be replaced by a legally admissible rule closest to the original will of the Parties.