The General Terms and Conditions of Sale
The General Terms and Conditions of Sale
I. GENERAL CLAUSE
Except any formal and express derogation made by the seller, all buyer’s orders carry off his full and entire consent to the present General Sale’s Conditions which prevail over any Sales’ Conditions. All particular sale’s clauses or conditions aiming to modify the present conditions must not be contrary to the seller’s ones .
II. Documents which are governed by the transaction
The transaction’s performance is governed by :
– the General Conditions which apply to the transaction ;
– the concluded contract between seller and buyer, its annexes and all other documents mentioned in the contract having contractual value.
– the additional clauses signed by the parties.
In the case of contradiction or difference between the transaction’s constituent documents, these documents will prevail in the inverse order to how they are listed above .
In the case of a clause’s or disposition’s lapse, nullity or inapplicability, partly or as a whole of one of the contractual documents, the other dispositions of the mentioned documents stay enforce.
III. The contract’s formation
“The contract is perfectly valid when, after receiving a written order, the buyer sends off a written acceptation without adding any substantial modifications.
If the seller, after formulating a real proposition, fixed a time limit for its acceptation, the contract is perfectly valid once the seller has send off a written acceptation before the time limit expires Yet, the contract’s formation has not taken place if this acceptation is received later than Two week after the time limit’s expiry.”
Except in the case of a contrary stipulation :
a) the prices shown in the catalogues’ lists are to be understood to refer to the «bare merchandise».
b) the prices mentioned in the real propositions and the contract include the packaging or other necessary means of protection in order to avoid damage to the merchandise under normal transport conditions for the duration and for the stated destination in the contract.
INCOTERMS dating from 2010 precise for each sale the methods of packaging.
If it is not mentioned in the contract , we apply ex-works prices (shipping, insurance and vat are not included).
V. Delivery delays
«The delays mentioned or agreed upon with the buyer are purely indicative. Partial or delayed deliveries as well can not justify in any case an order’s annulation nor commit the seller to his responsibility especially if it is due to any form of damage which can be either actual, potentially indirect or imputable indirect at a delay or due to a default of any kind in the delivery.»
Everything will depend upon the INCOTERMS, which were chosen during the contract’s negotiations.
VI . The product’ s quality and quantity
« The buyer is asked to accept a delivery of 10 % more or less of the quantity demanded.»
(this general reference is to a sound, loyable and tradable quality that is subject to European and international norms).
VII. The buyer’s product control
“The buyer has to, within the time limit of 48 hours starting from the date of reception (this can be further precised when looking closer at the sold goods’ nature), in order to avoid an estoppel, notify the seller precisely. He has to notify the seller in detail and fully explained by letter that acknowledges the letter’s reception or by fax, at the condition that the letter is received by the seller, of any reclamation that is possibly due to an eventual shortcoming and of a quality that the buyer finds not acceptable or where he judges that the performances are insufficient.
The buyer has the obligation to use all possible means that are in his disposition to certify the alleged shortcomings of the seller’s obligations, at the moment of the sold goods reception.
The buyer commits himself to return the goods at his own costs and risks to the seller in order that the latter can examine them. The buyer accepts that the goods could be returned at his costs and risks after being examined and eventually remedied by the seller.”
“All by the seller made products are guaranteed against any kind of shortcomings resulting from a material, fabrication or conception fault mentioned in the conditions below.
The shortcoming is only recognize where the usage is according and the maintenance normal.
The guarantee is excluded :
– if the product was repaired or modified by the buyer or by third parties chosen by him ;
– if it concerns pieces that were made by sub-contractors or seller’s suppliers to whom the normal producer or subcontractor guaranty applies ;
– if the defect is the result of the buyer’s negligence, or recklessness ;
– if the defect is the result of a force majeure or of an external event ;
Once a guaranteed shortcoming is stated by the buyer, it is up to him to send his reclamation to the seller with a letter that acknowledges the letter’s reception within a time limit of 8 days starting from the fault’s appearance.
This reclamation has to be accompanied by a detailed description of the fault’s nature.
The seller has to replace all pieces that are recognised to be defective due to the guarantee free of charge and within the a certain time limit by his maintenance services.”
-“The prices mentioned in the catalogues, electronic support, advertisement or books are indicative, they do not make the seller liable and can vary.
The fixed and definite prices are decided at the moment of a (successive) order or of a specific contract.
These prices can not be subject to any revisions until the delivery and / or the invoice has been received unless there is a specific reference made to a parties common agreement.”
The payment is an essential obligation of the contract.
– The payment’s currency is EUROS excluding taxes and including charges for standard packaging.
The method of payment is either:
– by a transfer before the goods’ expedition
– or by an irrevocable documentary letter of credit, which is confirmed by a bank agreed upon by the seller,
The seller must reduce the accounts made by the buyer from the price of the command. On the contrary, the seller can keep it when the buyer annuls the sale, which is not imputable to the seller without any prejudice to other damages and interest.
If the buyer is delayed with his payments, the seller can suspend the execution of his proper obligations, until the moment when he receives the outstanding payments, unless the buyer’s shortcoming is imputable to the seller’s omissions or act.
Furthermore the disregard of the payments’ time limits results in delay-penalties by the seller. The buyer will have to pay an amount with the normal interest rate being multiplied by 1.5. The disrespect of the present clause’s dispositions can result in the contract’s annulment in the conditions of clause XVII and the payment of damages and interest.”
XI. Laws and Taxes
” All taxes, laws and other similar contributions concerning the suppliers’ sales like the provisions which are mentioned in this contract, which exist or will be applicable in France on the selling of furniture and services object to this contract, are entirely the seller’s responsibility.
On the other hand the buyer is responsible for all charges of the same nature that arise applicable in the country wich the contract is to be executed with the exception of customs taxes though (if the price is qualified all rights discharged), including taxes, rights to stamps and registry and other similar contributions applicable in the place of the contract’s execution, which eventually apply to the present contract.”
XII. The property transfer
” As a substantial and determining condition of the present contract, the seller reserves himself the property of the delivered merchandise just until the entire payment is received.
The discharge of bills of exchange or of other claims being an obligation to settle does not constitute a payment in the sense of the present clause.
The buyer has to inform immediately the seller, as the goods’ owner of a third party’s seizure of the delivered merchandise.
If the seller‘s property disappears as a result of a resale or because of any other reason, the debts towards third parties which are provided by the resale are transferred back to the seller, even if no particular convention intervenes. The same situation applies to claims resulting of insurance contracts. If the buyer suspends his payments, he can not dispose of the sold merchandise as his own property.
In the case that the buyer does not make the payments following the modalities, which have been agreed upon with the seller, the latter can demand the merchandise’s restitution without losing though the other rights, which he holds in relation to the present contract.
The goods’ recovery does not result in the sales contract’s annulment, except if there is a written clause which expresses the contrary.
In the case of the goods’ recovery by the French company because of non-payment, the foreign company’s payment made at an earlier stage can be regarded by the French company as damages of the suffered detriment.”
XIII. Transfer of risks
“Following from the assumption that no INCOTERM 2010 applies to the sale or was not particularly chosen by the parties to apply to the sale , the sold good’s risk stays the buyer’s responsibility :
– at the moment when the seller, following the buyer’s instructions, should have send the sold goods to the first carrier
” The seller does not have to insure the goods if the contract does not foresee this in any clause.”
XV. Force Majeure
“Neither the seller nor the buyer can be held responsible for a possible delay or lack in their obligations’ execution, if this delay or lack is the result of a force majeure. A force majeure exists notably in the following situations, if they present certain characteristics of a force majeure, this means if the event was irresistible, unforeseeable, and externally provoked.
This non-exhaustive list enumerates some situations which constitute a force majeure: explosions, incidents, destruction of machinery, factories and equipment, natural disasters, acts by governmental authorities (refusing of a licence or cancellation of a licence …), wars, or any acts of war, flooding, riots, or social conflicts ….
The party that faces these circumstances which respond to the above given definition has immediately to inform by telegram, fax or any other written form the other party of this intervention and when these circumstances possibly end. In the case of absence of information, the concerned party can not prevail over, unless in the case of intervening circumstances, which also prevent any communication.
Where a force majeure intervenes responding to the above given definition, the time for the contract’s execution is prolonged for a period of time corresponding to the event’s duration. This does not include any payment of damages and interest or a penalty for the delay.
However if the above mentioned circumstances do persist for a period of time of 30 days, each party can annul the contract without any payment of damages and interest.”
XVI. Unforeseeability or Hardship Options
“If after the contract’s conclusion, any circumstances of any kind, (eventually of an economic, political nature or notably any legislative, technical or statutory changements), which were unforeseeable for the parties when the contract was concluded and which are not under their control, resulting in disturbance of the contract’s economic balance between the parties and rendering the contract’s execution thereby for one party burdensome, although not impossible, and these circumstances are beyond what would have been reasonably foreseeable during the contract’s negotiation, the party suffering from this detriment can demand the contract’s revision.
The event’s occurrence justifying a demand to readapt the contract does not exempt in any case the party from taking advantage to follow its obligations’ execution nor results in a postponement of its obligations.
The negotiations take place during a maximum period of 2 months starting with the first request addressed by one party to the other, unless there exists a different agreement between the parties.
If the parties do not reach an agreement within this period of time, the party which can make use of the present clause can annul the contract without any prejudice to the right of the other party to resort to the dispositions of the present General Conditions clause “Rules of Litigation”.
The last mentioned dispositions on unforeseeability and hardship exclude the cases of a force majeure.»
” The contract is annulled by law, without the need of any judicial formality where there are serious shortcomings by one of the parties concerning essential obligations. The annulment will become effective within fifteen (15) days after the mailing of a registered letter with acknowledgement of the reception of an earlier made formal notice which stayed unfruitful.
The essential obligations, which the parties have to fulfil, consist notably of the dued payment by the buyer or the merchandise’s non-delivery by the seller. In the case of a serious shortcoming to the contract’s essential obligations, the sale will be resiliated in good law without prejudice of damages and interest that can be reclaimed.
Any tolerance that one party allows the other not to prevail immediately over one of its rights, will not prejudice the party’s rights to prevail over them later, except in the case of a contrary convention or stipulation to the present conditions.»
XVIII. Attributive clause of jurisdiction
“All litigation deriving from the present contract or attributable to its interpretation or application, to its termination or to its nullity / invalidity, should be brought to the Tribunal of Commerce Quimper (France)»
XIX. The applicable law
” The law of the French Republic applies to the parties’ commercial relationship, excluding any other law. The French law is therefore aiming only to respond to the questions which are not settled by the present conditions.”
“The General Conditions’ official language (drafting and interpretation) is english. In case of contradiction of the translation, only the english version will be a basis for an interpretation.»