1. Scope of application
All offers made by Seller and all orders for goods (hereafter the “Goods”) placed by Buyer with Seller shall be exclusively subject to the present General Terms and Conditions of Sale (hereafter the “Terms”) without modification, unless otherwise expressly agreed in writing by Seller. When placing any order with Seller, Buyer accepts the Terms and acknowledges being fully acquainted with said Terms upon signature of the Goods’ specification, the sale order or the sale agreement (hereafter the “Agreement”). The Terms shall prevail over any other contrary clause provided for in Buyer’s general terms and conditions of purchase.
All orders for Goods placed by Buyer shall only become binding upon written acceptance by Seller. In case the acceptance differs from the order, such acceptance shall constitute a new non-binding offer from Seller that shall be accepted by Buyer. Accepted orders can be amended by Buyer, subject to Seller’s prior written approval before delivery.
The price of Goods shall correspond to Seller price list, subject to specific quotation made by Seller and accepted by Buyer. Unless otherwise agreed, the price shall be exclusive of all applicable duties and taxes, as well as all other charges, such as packaging, loading and transportation costs, without this list being limitative. All prices are payable in euros unless another currency is indicated on the invoice.
Seller reserves the right, by giving reasonable notice to Buyer, at any time before delivery, to increase the price to reflect any increase in the Seller’s costs, based on factors beyond Seller’s control.
4. Invoicing - Terms of payment
The Goods are invoiced the day they leave Seller’s plant. The price shall be paid thirty (30) days as of the date of the invoice unless otherwise indicated on the invoice, by all payment means priory agreed by Seller at the Seller’s place of business, without any deduction or offsets. In case of late payment, Seller is entitled to charge Buyer (i) interest on the outstanding amount at a rate equal to the rate applied by the European Central Bank to its most recent refinancing operation plus ten (10) percentage points until payment is made in full and (ii) a fixed fee of 40 Eur, as a penalty for late payment (without prejudice to Seller’s right to claim a further compensation should the recovery of the unsettled amount exceed such amount). In case of payment by installments, Buyer’s failure to pay one installment allows Seller to request the immediate full payment of the price.
5. Retention of title
Seller reserves title to the Goods until Buyer has satisfied all of its obligations under the Agreement with Seller, including full payment of the price and all incidentals. Buyer undertakes to take all actions reasonably requested by Seller to perfect retention of title. Until such time as title to the Goods passes from Seller to Buyer: (a) Buyer shall keep the Goods properly stored, protected and insured; (b) In the event Buyer re-sells the Goods or sells any products manufactured out of or which contain the Goods, Buyer assigns to Seller any claims arising therefrom for an amount equal to the price of the Goods.
Until Buyer has performed all its obligations under the Agreement, the proceeds of sale of such products shall be held in a separate account by Buyer for the benefit of Seller; (c) In the event a third party seizes the Goods, particularly in the form of attachment of property, Buyer shall notify the third party that the Goods are Seller’s property and shall immediately inform Seller in order to enable Seller to enforce its property rights. To the extent that the third party is unable to reimburse Seller for court fees or other costs incurred, Buyer shall bear such costs.
6. Transfer of risks
Deliveries of the Goods are made Ex-works (2010 Incoterms) unless another INCOTERM is expressly provided for by Seller.
Deliveries will be made depending on Seller’s availabilities. Delivery may be partial or made by installments. Unless otherwise agreed in writing, delivery dates are not binding on Seller, who shall only use its best endeavors to meet said delivery dates. Seller shall under no circumstances be liable for any loss or damage whatsoever, whether direct, indirect, consequential or otherwise, due to delay in delivery, unless in case of Seller’s gross negligence or willful misconduct, in which case Seller’s liability shall be limited to the excess, if any, of the cost for Buyer to purchase similar Goods, excluding delivery costs.
Delivery by Seller of a quantity of Goods within 2% (two percent) of the quantity ordered by Buyer shall be deemed to be proper performance by the Seller in accordance with the Agreement provided, however, that the price charged to the Buyer shall be based on the quantity of Goods actually delivered. In the event of any dispute between Buyer and Seller as to the quantity of the Goods delivered, the quantity recorded on Seller's officially calibrated weighing equipment, at the point of loading shall be accepted by both parties as correct.
8. Acceptance of goods
Except as otherwise stated herein, the Goods shall be deemed accepted by Buyer and the Seller shall bear no liability, twenty (20) days after receipt of the Goods at Buyer’s premises or otherwise directed by Buyer, unless Buyer has notified Seller in writing, at Seller’s address, as acknowledged in Seller’s acceptance of Buyer’s order, within such twenty (20) day period of any non-conformity of the Goods with the current Goods’ specifications, accompanied with all necessary evidence of said non-conformity. If Buyer provides Seller with written notice of non-conformity and evidence within the above mentioned twenty (20) day period after receipt of the Goods, Seller shall, at its sole discretion, either refund the amount paid by Buyer or replace the Goods free of charge.
Notwithstanding the foregoing, any mixing, processing, use or re-packaging of the Goods by Buyer, its agents or employees shall constitute acceptance of the Goods by Buyer.
In the absence of written notification as provided for in article 8, no further warranty is granted by Seller, unless in case of non-conformity not discoverable upon a reasonable inspection of the Goods.
In such a case, Buyer shall give written notice of non-conformity to Seller within four (4) months upon receipt of the Goods, - or in case the Goods have been shipped to Buyer from the depot of a distributor duly appointed by Seller, within twelve (12) months after their production date -, accompanied with evidence that the Goods were non-conforming at the time of receipt.
Subject to these aforementioned conditions, Seller shall, at its sole discretion, either refund the amount paid by Buyer or replace the Goods free of charge. No further representations or guarantees, notably as to the fitness of the Goods for its intended purpose, shall be binding on Seller.
10. Limitation of liability
Except in the event of gross negligence or willful misconduct, Seller shall not be liable, to the full extent allowed by law, for any direct damage or injury of any kind whatsoever, unless otherwise provided for herein. Under no circumstances shall Seller be liable for indirect, incidental, consequential or punitive damages, including, without limitation, loss of profit or goodwill. In any case, the aggregate of all liabilities of Seller, whether based on the present Terms or on any other applicable law, shall be limited to the price of the Goods, in connection with which the damage was caused.
If Buyer fails to fulfill any of its obligations under the Agreement or is subject to an insolvency procedure or any related procedure, Seller shall have the right, at its sole discretion, to terminate the Agreement in whole or in part, upon written information, this without prejudice to any claim for damages.
12. Force majeure
The Seller shall under no circumstances be liable for any default or delay attributable, wholly or partially, to any cause beyond Seller’s reasonable control which prevents or impedes manufacture or delivery of the Goods. Such causes shall include, but not be limited to, war, strike, lock-outs, sit-ins, site or building blockades, industrial disputes, fire, accidents, restraints affecting shipping or credit, non-arrival, delay or interruptions of any other means of transport, floods, storms, short or reduced supply or excessive costs of suitable raw materials, labour, or production difficulty, or any other such causes affecting Seller as to manufacture and delivery of the Goods. Seller’s performance shall be deemed to be suspended during and extended for such time as any such causes delay in its execution. The foregoing notwithstanding, if any event of Force Majeure affecting the performance of the Agreement shall continue for a period of one hundred and twenty (120) days, Buyer shall have the right to terminate the Agreement upon written notice to Seller.
13. Jurisdiction and applicable law
Buyer agrees to submit all disputes arising out of the Agreement, directly or indirectly, to the exclusive jurisdiction of the Lyon Courts in France.
The Terms and the Agreement are subject to the law of France giving no effect to the UN Convention on Contracts for the International Sale of Goods (CISG).
The price mentioned in the contract is exclusive of all taxes and is subject to VAT and/or any other taxes including sales tax, production tax or transportation tax, other than a tax on Seller’s profits, if applicable.
When (i) the delivery of the Products is VAT exempted in departure country due to the dispatch or transportation of the Products outside the departure country, and (ii) the dispatch or transportation of the Products is carried out by Buyer or on his behalf, Buyer should provide to Seller the following documents (the "Supporting Documentation"):
- Any documentation evidencing the dispatch or transportation of the Products outside of departure country in accordance with the rules in force in departure country within twenty (20) days following the collection of the Products by Buyer or on the 15th day of the following month, in case of multiple collections and,
- In case of intra-EU delivery, the written statement done by a duly empowered person acquiring the goods stating that the goods have been transported or dispatched by him, or by a third party on his behalf, and referring to the Member State of destination of the goods in accordance with the rules in force in departure country has to be provided by the Buyer to the Seller within ten (10) days of the month following the supply.
Should Buyer fail to provide the Supporting Documentation under the aforementioned conditions and schedule and in the event that VAT would be later claimed to Seller on the sale to Buyer, this latter should, immediately upon request, pay a compensation to Seller equal to (i) the amount of VAT owed, (ii) reimburse all penalties and interests on late payment charged to Seller for not initially apply VAT on sale or failing to provide the Supporting Documentation and (iii) a lawyer fee, if any, this later fee (iii) being caped to 10k€.04 Coatex SAS Sales T&C’s – Feb 12, 2019