GENERAL TERMS AND CONDITIONS OF PURCHASE

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 PROVISIONS

The present General Terms and Conditions of Purchase (hereinafter the « GTC ») shall apply exclusively to the purchase of all materials, objects, components or provisions of services of any kind (hereinafter the “Products”) which are offered or supplied by any supplier or service provider (hereinafter the “Supplier”) to POUCHARD TUBES ET BARRES, its agents or representatives (hereinafter the “Purchaser”). The GTC are an integral part of any order placed by the Purchaser to the Supplier.
The order (hereinafter “the Order”) includes the GTC, the purchase order as well as any documents such as technical, commercial and administrative specifications required by the Supplier. These documents constitute the entire agreement excluding any other document which have not been explicitly accepted in writing by the Purchaser and in particular catalogues, leaflets, advertisements, notices, which are only for information and guidance, and non-contractual.
In the absence of any contractual provisions, explicitly accepted in writing, which could result from the negotiation between the Purchaser and the Supplier (hereinafter the “Parties”), the GTC shall take precedence over any general conditions of the Supplier in particular sales conditions. Unless the Supplier’s general conditions are expressly accepted in the Order, their application is excluded and will be considered void.
In the absence of any contrary contractual provisions, accepting the Order implies that the Supplier has read and fully accepted the Purchaser’s GTC.
These GTC are available on the https://www.pouchard.fr/ website, which may be modified at any time without notice. These amendments are binding for the Supplier who must thus refer regularly to this website in order to verify the GTC in force.

ARTICLE 2 – ORDER

The Order is the result of negotiations between the parties based on the Buyer's GTC. All purchases of Products are subject to a purchase order, the Order is only binding to the Purchaser provided it has been signed by a representative of the Purchaser duly authorized to issue such orders. Orders placed by e-mail, verbally or by telephone are only valid if they are confirmed by a purchase order.
Each Order must be accepted within a maximum period of 5 (five) days from the date of dispatch, failing which the Order may be cancelled by the Purchaser without any obligation to provide justification or, otherwise, shall be treated as having been accepted without any reserve by the Supplier.
The acceptance of an Order or beginning of performance of an Order by the contractor shall be construed as an acceptance by the contractor of such Order and GTCs as well as of the special terms and conditions contained in the purchase order or contract referring to the GTCs.
If the Supplier accepts the Order with reservations, he must notify the Purchaser within five (5) days of receipt of the Order in a separate written document. In this case, the Purchaser will no longer be bound by the said Order unless he confirms his acceptance of the said modifications in writing.
The following references shall imperatively be indicated in all of the Supplier’s documents relating to the Order:
- Supplier code
- Order number;
- Purchaser’s reference;
- Place of delivery; and,
- Invoicing address.
The Purchaser’s Order shall be considered to be finally accepted and definitive when the Supplier confirms the Order within five (5) working days from the date of Order’s issuance, by a dated and signed acknowledgement of receipt.
Silence or failure to act on the part of the Purchaser with regard to a different condition or term of the Supplier shall not have any legal effect and shall not constitute any acceptance of the Order.

ARTICLE 3 – DELIVERY AND DELAYS

The Supplier undertakes to deliver the Products and/or Services at the places/dates/delays indicated on the purchase order and during the opening hours of the reception service.
Unless otherwise specified, any delivery of Product shall be accompanied by:
- Two copies of the delivery note showing in addition to the references mentioned in Article 2, the description of the Products and the delivered quantities;
- Any document required for the Order.
Packaging and identification shall be performed in accordance with the Order and applicable regulations and standards. The Products must be properly and sufficiently packed, in an appropriate package taking into account their nature and the appropriate precautions to take to protect them against the weather, corrosion, accidents when loading or unloading, transport and storage constraints, vibrations or shocks, etc. packages shall be clearly identified by reference to the Purchaser’s Order form.
The Supplier shall be held responsible of any broken, missing or damaged goods because of faulty or unsuitable packaging, marking or labelling.
The Supplier will clear from custom taxes any Product for which it is required at his own expense.
Unless it has been otherwise agreed upon in the Order, the delivery terms of the Product are deemed to be « Delivered At Place » or DAP (Incoterms 2010) to the agreed place of delivery mentioned in the Order.
Unless specified otherwise on the Order, the shipment of the Products will be at the Supplier’s risks and expenses.
The Purchaser shall be entitled to refuse all or part of the delivery of the Product and remove or hold available any Product, at the Supplier’s expense and risk:
- Which was not ordered or modified and approved by the Purchaser;
- Which was delivered after the deadline had expired;
- For which the delivery may be under or over.
The absence of reserves or complaints about the acceptance of the delivery shall not constitute a final acceptance of the delivered Products nor a waiver by the Purchaser of any claim related to non-conformity with the Order or visible defects of the Product.
The Products must comply with the requirements set out in the Order and with the regulations and standards in force. If the Product does not comply with such requirements, the Purchaser shall inform the Supplier in writing and reserves the right, at his convenience to:
- Refuse the Products by making them available to the Supplier for removal at his own expense and risk within fifteen (15) days after the date of the Purchaser’s notification of non-conformity;
- Refuse the Product and return it to the Supplier at his own expense and risk within five (5) days after the date of the Purchaser’s notification of non-conformity.
For all non-conform delivery, the Purchaser shall provide a statement of claim with covering debit note.
The deadlines agreed upon between the Parties, in particular the date of delivery fixed on the Order are binding and their respect is an essential condition without which the Purchaser would not have contracted.
In the event of any delay in the delivery, the Supplier shall immediately notify in writing the Purchaser, indicating:
- The reason and/or the probable duration of the delay and its consequences on the final delivery date;
- Any information relative to the measures implemented to rectify the situation.
Any Order delivered before the delivery date "at the earliest" may result in the return of the goods at the Supplier's expense.
Similarly, any Order which is not delivered within the period provided for "at the latest" can be cancelled by the Purchaser, who may, if he so wishes, return the goods at the Supplier's expense.
If the agreed contractual delivery periods are non-respected, the Purchaser retains the right and without prior formal notice to:
- Maintain the Order, in which case the Supplier shall pay for each day exceeding the delay after a two (2) day franchise period, a late delivery penalty equivalent to 1% per day of delay but not exceeding fifteen (15) % of the total Order value (purchase price EXCL. TAX) , and without prejudice to damages the injured party may claim;
- Cancel the Order in cases where delivery is over two (2) weeks late, even if partial deliveries have already been made, in which case the Supplier shall pay a penalty equal to fifteen (15) % of the total Order value (purchase price EXCL. TAX), and without prejudice to damages the injured party may claim;
- Remedy to the default of delivery himself by buying from another supplier at the expense and risk of the defaulting Supplier. In this case, the Purchaser shall notify it to the defaulting Supplier, which shall offer an alternative solution to the Purchaser within two (2) weeks.
These penalties shall not constitute a valid discharge and may not be regarded as a fix and final remedy for the loss suffered by the Purchaser.
Any retention of title clause delaying the transfer of property terms provided by ordinary law shall be excluded.

ARTICLE 4 – PRICE – INVOICING – PAYMENT

4.1 – Price
The applicable prices are those mentioned in the Order. They are firm and may not be revised. They shall be understood, insofar as not otherwise agreed upon, « Delivered At Place » or DAP (Incoterms 2010) to the agreed place of delivery mentioned in the Order. The price includes the Product’s packaging costs and any other cost in relation to the risk and the performance of the Order as well as the costs for the appropriate packaging of the Products for transport and handling purposes.
Any additional cost, regardless of its nature, is subject to prior approval in writing by the Purchaser by means of an amendment to the Order specifically indicated on the Order form. Orders do not give rise to any systematic payment of advances (neither down payments nor deposits), unless expressly stipulated in the Order and specific terms.
If the Supplier grants lower prices or higher discounts to other companies for comparable volumes of products or services of those acquired by the Purchaser, the Parties shall discuss with each other about how this information should be taken into account.
Any change in the Supplier's rates or payment terms must be communicated to the Purchaser by any means (including electronic mail) with acknowledgement of receipt at least one month before it is implemented.
Otherwise, the modification of the price or sales terms and conditions shall not be applicable to the Purchaser until one month after he becomes aware of it.
4.2 – Invoicing
After each delivery of an Order, the Supplier shall send the original invoices in two copies addressed to POUCHARD TUBES ET BARRES, Service Comptabilité Fournisseur, and in compliance with the legal requirements in particular of the provisions of article L441-3 of the French Commercial Code, and those of the Purchaser, alongside with any supporting document signed by both parties attesting to the receipt of the Products and/or Services.
They shall also indicate the Order’s reference as well as the means of shipment and the destination of the goods.
The Purchaser retains the right, notably, to reject any invoice:
- Which was not subject to an Order formed properly and approved by the Purchaser’s services;
- Which does not include the references required in the Order.
To calculate the payment terms, the date to take into account is the one of actual receipt of the goods or of performance of the services.
The Supplier expressly authorizes the Purchaser to offset the amounts due by the Purchaser or any assignee of the invoices against those due by the Supplier, for any reason whatsoever.
4.3 – Payment
Provided the Products conformity and unless otherwise stipulated in the Order, payment shall be made within forty-five (45) days at the end of the month of the invoice date.
In the event of any late payment, the interest rate applicable to late payment penalties shall be limited to three times the French legal rate of interest.
Any delay in payment shall result in a flat-rate compensation for recovery costs of an amount of 40 euros.

ARTICLE 5 – GUARANTEE – LIABILITY

5.1 – Guarantee
The Supplier guarantees from the date of delivery, that the Products including their packaging and labelling:
- Are of good quality in accordance to industry standards and free from any hidden or visible material and legal defects; deficiencies, mistakes, flaws or malfunctions;
- Comply with the entire Order of the Purchaser as well as to all the specifications and descriptions provided or approved by the Purchaser and disclosed to the Supplier;
- Are of the quality expected from any diligent and qualified professional, and suitable for the use for which they are intended, meaning the use the Supplier declares to have knowledge of at the time of the acceptance of the Order.
The Supplier shall be liable for visible or hidden defects which may affect the Products in accordance with the ordinary law in force and the Supplier’s contractual obligations. The Supplier shall indemnify the Purchaser against all claims of whichever nature that might be brought under this scope and agrees to compensate for any harmful consequences that may occur for the Purchaser and/or third parties and undertakes to participate actively and financially to any potential recall campaign.
Unless stated otherwise in the Order, the Supplier undertakes to guarantee the Products regardless of the reason of non-conformity for a minimum period of at least two (2) years from the date of delivery. The Supplier therefore undertakes to provide at his own expense the maintenance, repairs or replacement of the defective Products throughout this period (at Purchaser’s convenience), it being specified that the Supplier shall bear all costs involved in repairing or replacing the Products (such as labour, travel and transportation costs…) without prejudice to the provisions of article 5.2. Any repaired or replaced Product shall be guaranteed on the same terms as above.
In the event of a lack of conformity, the Purchaser shall have the choice between:
- Cancelling the Order after information of the Supplier;
- Or obtaining, at the Supplier's expense, the immediate replacement of non-conform Products by identical or better quality products at the same price conditions and within fifteen (15) days of reception of the complaint, without prejudice to the compensation that may be claimed by the purchaser for all direct and indirect pecuniary consequences resulting from damage of any kind caused to persons or property as well as from measures to withdraw the Products for any reason whatsoever.
Non-compliant Products are returned, where applicable, to the Supplier freight prepaid, accompanied by a "return slip" specifying their condition. The Supplier shall remain responsible according to ordinary law, including after the contractual guarantee period, for all defects that may affect the Products.
5.2 – Liability
The Supplier undertakes to support all direct and indirect pecuniary consequences resulting of all damages of all kind direct, indirect, special, incidental, material or intangible damages, consecutive or non-consecutive and including losses incurred by the Purchaser, his staff and/or any third party as a result of a delivery delay, defective Products or any other breach by the Supplier as well as non-execution or defective execution of the Order by the Supplier or damage of any kind caused to persons and/or property, as well as measures of withdrawal, suspension, consignment, return with reimbursement of the customer, modification and/or destruction of the Products, whether such measures are ordered by public authorities (including the courts) or voluntary and whatever the reason invoked: in particular in the event of a hidden defect, non-compliance with a standard or regulation, safety defect.
These damages shall be indemnified entirely without any limitation either of its nature or amount.

ARTICLE 6 – INSURANCE

The Supplier declares and warrants that he subscribed, for himself and any eventual subcontractor an insurance policy with a reputably solvent insurance company covering the financial implication of his potential subcontractors or his own professional liability especially towards the Purchaser, his staff and/or any third party, in accordance to the nature and extent of the contractual relation.
The Supplier undertakes to provide at any time, on simple request of the Purchaser, justification of the subscription of an effective insurance and the payment of related premiums. The Supplier must inform the Purchaser of any change, suspension or termination of the insurance.
Under any circumstances, the Supplier’s insurance policy cannot be considered as a limitation to his obligations and liabilities pursuant to the Order.

ARTICLE 7 – ASSIGNMENT – SUBCONTRACTING

Without the prior written consent of the Purchaser, the Supplier may not transfer by any means nor assign all or any part of the rights and obligations attached to the Order to a third party. In the event of a change in direct or indirect control of the Supplier or the sale by the Supplier of his assets, the Purchaser shall have the right to terminate the Order in accordance with Article 9.
The Order may not be subcontracted by the Supplier, whether in full or in part, directly or indirectly, without the Purchaser's prior, express authorization.
In the event the Supplier is entitled to sub-contract all or any part of the Order to any third party, the financial implications of these operations shall be supported solely by the Supplier. He will be fully liable towards the Purchaser for the complete and perfect achievement of the Order and for the compliance to the GTC by his subcontractors. The Supplier shall notify all subcontractors of the GTC’s provisions as well as of those of the Order, and shall provide them with all information regarding the Purchaser’s requirements, the latter retains the right to refuse any subcontractor which would not comply with these requirements.
In such case, the Supplier ensures that his subcontractors also comply with the obligations arising from the French Labour Code. He also undertakes to comply with the provisions of the law No. 75-1334 of the 31 December 1975 relative to subcontracting.
In case of assignment or subcontracting by the Supplier, without receiving prior written consent by the Purchaser, he shall terminate the Order without accepting any claim for compensation which would be submitted by the Supplier.

ARTICLE 8 – UNFORESEEN EVENTS AND FORCE MAJEURE

8.1 - unforeseeable events
Each Party declares that it expressly and knowingly waives its rights to the benefit of the provisions of Article 1195 of the French civil Code and the contingency regime it provides. The Parties undertake to assume their obligations even if the contractual balance is disrupted by circumstances that were unforeseeable when the contract was concluded, even if the performance of the said contract would prove excessively expensive and to bear all the economic and financial consequences.
8.2 – Force majeure
Any event over which the debtor has no control and which was reasonably unforeseeable when the contract was concluded and which the parties could not avoid nor overcome when it occurred, making impossible the complete or partial fulfilment of the obligations of the contract (In particular but not limited to a stop of production, a shortage of equipment, raw material or workforce, an interruption of transportation, fires, floods, manufacturing accidents, etc.) are considered as exoneration causes from the parties contractual obligations. In case such event arises, the affected party shall inform his counterpart immediately either by telephone or e-mail which shall be followed by a letter with acknowledgement of receipt.
If the event is only temporary, the contract’s effects will be suspended until the situation returns to normal.
If the Force Majeure event which constrains the Supplier to suspend his obligations continues for more than thirty (30) days, the Purchaser is entitled to request immediate cancelation of the Order, by sending a letter with acknowledgment of receipt, without any claim for compensation from either party.

ARTICLE 9 - TERMINATION

Any Order may be terminated automatically at any time by either one of the Parties, Supplier or Purchaser, in the event that the other Party fails to fulfil any of his obligations, fifteen (15) days after formal notice which has remained without effect and sent by registered letter with acknowledgement of receipt by the aggrieved Party to the defaulting Party, without prejudice for the aggrieved Party to claim damages from the defaulting Party for any damage it has suffered.

ARTICLE 10 – COMPLIANCE WITH LABOUR LEGISLATION – FRAUD AND CORRUPTION - CONFIDENTIALITY

10.1 Compliance with Labour Legislation
The Supplier undertakes to comply with all provisions of the French Labour code, in particular regarding child labour and undeclared work. The Supplier also undertakes to comply with the social and labour legislation of the country of performance of the Order as long as the Parties’ commercial relation lasts.
10.2 Fraud and Corruption
The Supplier shall take any necessary measures to prevent any fraudulent activities involving his agents regarding the payments made by the Purchaser.
The Supplier agrees and guarantees that he has not given and will not give, nor agree to give to any of the Purchaser’s employee, agent or representant, any gift or commission in connection to the Order.
In the event the Supplier fails to comply with these provisions, the Purchaser shall terminate the current Order without prejudice to any legal action the Purchaser may bring against the Supplier.
The Supplier agrees to ensure that his employees and subcontractors comply with the obligations set forth in this Article.

ARTICLE 11 – CONFIDENTIALITY AND INTELLECTUAL PROPERTY

All technical and commercial information and documents of any types including studies arising from the fulfilment of the order and whether or not they may be protected by intellectual property rights ( hereafter “Documents and Information” become and remain the exclusive property of the Purchaser.
11.1 – Confidentiality
The Supplier undertakes to treat as confidential all Documents and Information and he is prohibited from disclosing and/or transmitting them in any way whatsoever to third parties, except with prior written consent of the Purchaser.
The Supplier shall not disclose its business relationship with the Purchaser except with prior written consent of the Purchaser.
11.2 – Intellectual Property
All intellectual property rights are transferred to the Purchaser. The price mentioned in the order/the contract includes the assignment price of all intellectual property rights.
In this respect, if the abovementioned Documents and Information include copyright, the Supplier shall assign all financial copyrights attached to the said Documents and Information on an exclusive basis and definitively for the legal copyright period and worldwide. Said rights include the rights of reproduction, representation, modification, adaptation, translation and marketing in all forms, in all or part, by all means and on all known or future media.
The Supplier guarantees that third parties are unable to assert any rights or claim related to the infringement of intellectual property rights generated by the supplies covered by the order and/or their use in particular any rights in rem and intellectual property rights such as patent rights, trade mark rights, utility model rights, design rights and copyright (hereinafter "Property Rights").
If a third party asserts claims against the Purchaser for infringement of Property Rights in relation to an order, the Supplier, at its own cost, notwithstanding the Purchaser further rights and at the Purchaser’s choice, must either obtain a right of use, change or replace its order so that the Property Right may no longer be contested and in full compliance of the order.
Note that the Supplier undertakes to take back at its own expense any infringing stocks of supplies that have already been delivered. In relation to any abovementioned claims, any amounts/expenses that the Purchaser has to bear in any respect whatsoever, in particular, for costs, fees, damages shall be fully and promptly reimbursed to the Purchaser upon first request by the Supplier.

ARTICLE 12 – EXPORT CONTROL

The Supplier agrees and guarantees to comply with all applicable international and national exportation laws and regulations.
The Supplier undertakes to obtain all international and national licenses or comparable permits required under each respective applicable exportation law or regulation.
The Supplier undertakes to indemnify and hold harmless the Purchaser against all claims, liabilities and expenditures (including attorneys’ fees) incurred by the Purchaser due to the Supplier’s failure to comply with any such applicable exportation law or regulation.

ARTICLE 13 – PRODUCT COMPLIANCE WITH THE REGULATIONS AND STANDARDS

During the performance of the Order, the Supplier guarantees that the Products are conform to all laws and public authority regulations and the standards regarding health, safety, traceability and environment. The Supplier shall provide to the Purchaser at the time of delivery or upon first request by the Purchaser, any certificate required by the regulation and related to the Products.
It also includes the enforcement of all provisions of the European Regulation (EC) No. 1907/2006 of the Council and the European Parliament of the 18 December 2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH Regulation) and the European Regulation (EC) No. 1272/2008 of the Council and the European Parliament of the 16 December 2008 concerning the Classification, Labelling and Packaging of Substances and Mixtures (CLP Regulation).
In addition, the Supplier undertakes to:
- Implement in his supply chain, any appropriate measure to ensure that the following metals: tantalum, tin, tungsten and gold, do not come from either an area of conflict or from a high-risk country and;
- Provide upon request, any data relating to the supply chain.
Any breach of the dispositions set forth above exposes the Supplier to the immediate termination of all commercial relations, without notice.

ARTICLE 14 – LANGUAGE OF THE CONTRACT – APPLICABLE LAW – DISPUTE SETTLEMENT

APPLICABLE LAW – DISPUTE SETTLEMENT
If any translation of the present GTC is made, the Parties shall be bound solely by the French version.
Any dispute relative to the implementation, interpretation or execution of these GTCs and all the contractual relationship between the Parties shall be governed by the law of the country in which the Purchaser which has placed the Order has his registered offices, which means, the French law. The UN Convention on Contracts for the International Sale of Goods (CISG) as well as the regulations of private international law are expressly inapplicable.
Any dispute that may arise between the Parties regarding the validity, the interpretation or the execution of the present GTC and any contractual relationships between the Supplier and the Purchaser shall be subject to an attempt of amicable resolution between the parties.
If the attempt to an amicable resolution fails, the dispute shall only be brought before the Commercial courts where the Purchaser’s registered seat is located. However, the Purchaser retains the exclusive right to submit any dispute involving the Supplier before the courts of the Supplier’s registered office or before the courts of the place of delivery of the Products.

Version: June 2019

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