General terms and conditions of sale
1. Field of application
The present general terms and conditions apply to all the contracts relating to sales and the provision of services (including consultancy services) placed in France and abroad by the company Jacob Holm Industries (France) SAS (hereafter the "Supplier"). Any order placed with the Supplier implies unreserved acceptance by the Purchaser of these terms and conditions even if they are not expressly referred to.
The fact that the Supplier does not seek application at any given time of any one of the clauses in these general conditions, cannot be considered as renouncing to seek application thereof at a later date, only a written agreement being able to modify them or supplement them.
The nullity of one or more stipulations of these
conditions will not affect the validity of the other stipulations, the
invalid clause having to be replaced by provisions the object and
economic effects of which will be as close as possible to those of the
clause rendered null and void.
2. Offer and concluding the contract
2.1 Unless otherwise expressly stipulated, the information appearing in the
Supplier’s sales catalogues and documents is only of a non-contractual,
informative and indicative nature.
2.2 Unless otherwise specified, the Supplier’s offers are valid for three
months from the date on which they are issued. The price stated in the
offer can be changed by the Supplier due to the increase in of one of
its economic components, in particular, the purchase price of the raw
materials, exchange rate and/or price of transport. The recipient of
the offer will be informed in writing of this revision which is beyond
the Supplier’s control. This revised price will be applied to any order
placed more than 30 days after this information is given. Any
adjustment in the price of the offer will not extend the latter’s
period of validity.
2.3 The Purchaser must make sure that the characteristics of the products mentioned in the offer match its needs. The purchaser shall, at the same time as the offer, have to provide information and validate the specifications of the product submitted by the Supplier. The Supplier shall not be able to be held liable for any difficulties and errors which might arise out of inaccurate, insufficiently precise or incomplete data provided by the Purchaser, even in the event of the latter receiving assistance from its engineers or technicians for a study or a project.
2.4 The Purchaser is bound by the order which it sends to the Supplier. Except for a delivery order placed in connection with a general supply agreement signed by the Supplier, the latter is only bound by an order after having confirmed it in writing. In order to optimise the packaging method, the order confirmation may reveal a quantity of goods which is 10% higher or lower than that ordered.
2.5 The Purchaser must carefully check the order confirmation from the Supplier and report any errors or possible omissions within three (3) calendar days of receiving it. Once this time has elapsed, the contract is deemed as definitively concluded according to the terms and conditions stipulated in the order confirmation.
2.6 In the event of a conclusive result in a test relating to a new product and performed at a Purchaser’s request, the latter is deemed to have ordered from the Supplier the quantity of products fixed beforehand and must pay the price for them agreed in advance.
2.7 Once the contract has been concluded, any request for modifications by the Purchaser will only bind the Supplier after its express written acceptance. It shall lead to the initial prices and delivery times being rendered void and being redefined by mutual agreement. Any cancellation of an order, even partial, entitles the Supplier to receive compensation equal to the amount of the order cancelled.
2.8 The benefit of the orders is personal for the Purchaser and cannot be assigned or transferred to a third party without the Supplier’s consent.
2.9 The Purchaser undertakes to provide in a timely manner the necessary and correct information allowing the Supplier to deliver the order.
2.10 The Purchaser undertakes to inform the Supplier in writing one (1) month prior to the commercialisation of a product usually ordered from the Supplier being stopped or suspended.
2.11 The Supplier has the right to regularly opt for another type of material and to change the design of the goods to be delivered, if the replacement product complies with the usual standards and the characteristics required by the Purchaser. In such a case, the Purchaser cannot require the goods already delivered or ordered to be replaced.
3. Price
3.1 Unless otherwise stipulated, the prices given by the Supplier are stipulated as excluding VAT and any discounts; customs duties, royalties, taxes, levies, transport and insurance charges are to be paid in addition by the Purchaser.
3.2 Between the order and the delivery, the price can be modified by the Supplier due to an increase beyond any of the parties’ control in one of its economic components, in particular, the purchase price of the raw materials, exchange rate and/or price of transport. The Purchaser will be informed of this modification in the price by a new order confirmation which will not alter the other conditions of the contract, the sale being definitively concluded after the initial order confirmation, and shall not make it possible for the Purchaser to withdraw from it in any way whatsoever.
3.3 The square meters dispatched are taken as a basis for invoicing purposes.
4. Terms of payment
4.1 Unless expressly agreed in writing, the purchase price is payable by the Purchaser on receipt of the goods without any deductions or discounts.
4.2 The deadline for payment stated on the invoice is imperative. Any sum not paid by the due date can give rise to the payment of penalties, the rate of which is equal to 3 times the legal rate of interest, the Supplier reserving the right to suspend or cancel the orders in progress without paying any compensation to the Purchaser and to claim damages to compensate for the loss suffered. These penalties are payable automatically, without any formal notice.
4.3 In the event of a delay in payment by the Purchaser, the Supplier is entitled to demand the full purchase price immediately.
4.4 Even after an order has been partially carried out, if the Supplier is informed of an event which leads it to fear that the Purchaser shall not be able to honour its commitments, in particular a modification in its legal situation or sureties being registered on its stock, it reserves the right to insist on the payment of a deposit and to suspend the deliveries. Any deposit not paid by the agreed due date, shall authorise the Supplier to cancel the order(s) in progress without prejudice to the right to claim damages to compensate for the loss suffered and without paying any compensation to the Purchaser.
4.5 In the event of multiple debts, and in the absence of any agreement to the contrary, any part payment shall first and foremost be charged to the debt payable which has been outstanding for the longest time, and to the capital due by giving priority to the interest.
4.6 Unless agreed in writing beforehand, the Supplier shall not allow any compensation between its debts and those which the Purchaser or a third party might avail itself of.
4.7 The Purchaser can only assert undeniable or final claims.
5. Delivery
5.1 Unless otherwise agreed in writing, the delivery time is indicative.
5.2 Unless otherwise agreed, the delivery takes place « DDU » (delivered duty unpaid to the agreed destination) in accordance with the Incoterms published by the International Chamber of Commerce. On the other hand, in the event of maritime transport or by inland waterways, the delivery takes place "CIF" (Cost, insurance and freight to the agreed port of destination).
5.3 In any event, delays in delivery cannot justify the cancellation of the order nor give rise to the payment of penalties or damages.
5.4 The Supplier the right has to carry out partial deliveries subject to acceptable quantity. If the Purchaser requires partial deliveries, it shall have to bear all the resulting additional costs, taxes and expenses, particularly with regard to customs and transportation.
5.5 The occurrence of a case of force majeure automatically leads to the order being suspended and the delivery times being postponed without any compensation in favour of the Purchaser. The following in particular constitute a case of force majeure : strikes by all or part of the personnel, technical incidents, disruption on the transport links, fire, floods, uprising, being unable to procure supplies, whether these incidents affect the Supplier, its subcontractors or those of its subcontractors and provided that they have a decisive effect on the fulfilment of the order.
If the case of force majeure were to last more than six (6) weeks, this contract shall be able to be terminated by the party which first requests it by registered letter with acknowledgement of receipt, without any of the parties being able to claim the payment of damages. This cancellation will take effect on the date this registered letter with acknowledgement of delivery terminating said contract is first presented.
6. Transfer of risks
6.1 Making the goods available at the agreed place of delivery transfers the risks of the latter to the Purchaser.
If the Purchaser decides to collect the goods or have them collected on the Supplier’s premises, the risks relating to the goods are transferred to it right from the loading operations at the place of departure, irrespective of which party bears the forwarding costs and takes care of transportation.
6.2 If the shipment or the delivery of goods ready for shipment is delayed for reasons which do not involve the Supplier’s liability, the risk related to the goods is transferred to the Purchaser as soon as the shipping notice is issued.
Unless otherwise agreed in writing, the Purchaser must collect the goods within five (5) days of the shipping notice being issued. Failing this, storage costs of 200 euros per packing list shall be calculated per 30 calendar day period. These costs are all-inclusive and shall be due for any period started, without any reduction being possible.
6.3 The means of shipment is left to the discretion of the Supplier who must, as far as possible, take into account the Purchaser’s special wishes.
7. Times for complaints to be made – Return:
7.1 The goods delivered and their packaging (including lower disks of the rolls and plastic film) must be checked by the purchaser within three (3) days of being delivered (except public holidays and Sunday).
Any complaint relating to a missing item, a partial loss and/or damage, defects whether visible or not, must be reported by the Purchaser to the Supplier within the above-mentioned time by fax or electronic mail. The absence of a complaint within this time deprives the Purchaser of the right to invoke a missing item, partial loss and/or damage, whether visible or not at a later date.
7.2 The provisions which precede do not exempt the Purchaser, in the event of losses, damage or missing items, from making all the reserves necessary with the carrier within three (3) days (excluding public holidays and Sundays) of receiving the goods by registered letter with acknowledgement of receipt, a copy of which shall be sent at the same time to the Supplier. This time is increased to seven (7) days in the event of international transport subject to the CMR (Convention on the Contract for the International Carriage of Goods by Road). The Purchaser must mention the details of the missing items, the damage or the loss on the transport document to justify damages.
7.3 The complaint made by the Purchaser does not suspend the terms of payment. It must be justified and mention any element making it possible to identify the delivery and the goods concerned (Batch No., pallet No…).
7.4 If the carrier’s liability is not involved and if the complaint is founded and was formed within the aforementioned three (3) days, the Purchaser will, depending on what is chosen by the Supplier, be able to obtain the replacement of the goods which are not in conformity, the supplement to make up for the missing items or the reimbursement in the form of a credit note for the goods returned, with the exclusion any damages or compensation.
7.5 No goods can be returned to the Supplier without its prior written agreement.
8. Liability and warranties
8.1 The Supplier compels itself to abide by the rules of diligence and deliver high-quality products. It furthermore undertakes to choose and train its employees with all the necessary care, to instil in them professional working methods and to see to it that they are observed.
8.2 The goods delivered are covered by a warranty for a period of six (6) months from when they are delivered against a hidden defect prior to the sale, the seriousness of which prevents the product from being used normally as specified by the Purchaser.
8.3 The warranty is subject to conditions of storage making it possible to protect the product: dry, clean location and protected from any external contamination.
8.4 Any defect must be announced by registered letter with acknowledgement of receipt within eight (8) days of it being discovered. The purchaser must establish the real nature of this defect and that it is attributable to the Supplier. The letter must be accompanied by the label (original or copies) on the reel and/or the package concerned by the dispute.
8.5 Slight, technically unavoidable differences in quality, colour, width, handling, weight, equipment or design do not confer any right to make a claim.
8.6 If the Supplier’s liability were to be involved, the Purchaser will be able to ask for the sale to be cancelled or the price reduced if the Supplier cannot provide it with the free replacement of the goods within a reasonable time. The Supplier will not be liable for any damages in favour of the purchaser or a third party, for whatever reason, in particular operating disruptions or losses.
8.7 The warranty does not apply to the following :
- a disorder which would be the result of either the absence of or an inadequate specification provided by the Purchaser, or a design method imposed by it,
- if the goods were modified by the purchaser or a third party without the Supplier’s written agreement,
- damage and wear and tear resulting from abnormal or inappropriate use, lack of maintenance, natural wear and tear, a case of force majeure, unsuitable operating means or environmental circumstances.
8.8 Liability relating to faulty products is excluded in the event of damage to the goods.
8.9 If it resells the products, the Purchaser is obliged to respect the provisions of the law abroad as regards exports. If it alters the products resold, it will have to answer for the resulting damage with regard to the Supplier, its customers or third parties.
9. Retention of title
9.1 The Supplier retains the title of the goods until the price for them has been fully received, in principal and costs. Notwithstanding the absence of transfer of title, the Purchaser is liable for the goods under the conditions specified in Article 6; it therefore undertakes to take out an insurance policy covering the risks of loss, theft or destruction of said goods.
9.2 During the period when the title of the goods is retained by the Supplier, the Purchaser must see to it that all care is taken in keeping and protecting the goods and that an insurance policy is taken out covering the damage which it might sustain.
9.3 As expressly stipulated, as the goods are fungible, the Supplier will be able to make use of the rights which it holds under this clause for any of its debts, concerning all its products in the customer’s possession, the latter being assumed by agreement to be those which have not been paid for; the Supplier will be able to take them back or claim them as compensation for all its unpaid invoices, without prejudice to its right to terminate the sales in progress.
9.4 The Purchaser shall not under any circumstances be able to pledge or give security on unpaid goods, nor pawn them or transfer the title to them by way of guarantee.
9.5 In the event of seizure or any other action by a third party, the Purchaser is required to immediately inform the Supplier and inform the third party concerned of the Supplier’s rights to the unpaid goods.
9.6 In the event of resale, the Purchaser undertakes to immediately pay the outstanding part of the price to the Supplier.
9.7 In the event of non-payment of an outstanding invoice, the Supplier will be able to unilaterally draw up or have drawn up an inventory of its products in the Purchaser’s possession, which having been given 24 hours notice, undertakes as of now, to grant full access to its warehouses, stores and other places for this purpose. The Purchaser not being the subject of a collective procedure undertakes to return the goods at the Supplier’s first request within the next 3 days, with the costs for returning them being at its expense. Failing this, it could be forced to do so by the judge in chambers or bailiff authorised to carry out a seizure under lien, the costs of these various proceedings being borne by the recalcitrant Purchaser.
10. Intellectual Property - Confidentiality
10.1 The Purchaser is bound to respect the Supplier’s intellectual property rights, in particular patents, drawings and models and trademarks. It undertakes not to copy them, reproduce them or bring them to the knowledge of a third party without the Supplier’s written consent.
10.2 The documents, studies, drawings, samples and information of a technical, commercial or financial nature to which the Purchaser shall have had access or which shall have been sent to it by the Supplier, are confidential and remain the exclusive property of the Supplier. They cannot be sent to a third party without the Supplier’s written agreement and their media must be returned immediately on first request.
11. Applicable law and competent Court
11.1 All the sales transactions referred to under the present general terms and conditions are subjected exclusively to French law.
11.2 All the disputes relating to the formation, execution, interpretation or termination of the sales transactions binding the Supplier, will fall within the exclusive competence of the courts of COLMAR.
12. Translation - Date of effect:
12.1 For propriety's sake, a translation of these general terms and conditions of sale has been carried out in English and in German. In the event of a dispute, only the French version shall be deemed authentic.
12.2 These general terms and conditions come into effect on November, 1st 2006. They supersede any other previous general terms and conditions which may appear on our documents.
