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Siret 693 620 577 00017
FR 89 693 620 577
1. GENERAL INFORMATION
Any order placed with our Company implies the application without restrictions of the General Terms and Conditions of Sale specified herein. They cancel any contrary clause that might constitute an obstacle to their application and/or any contrary clause that might be inserted into any agreement, document or correspondence, issued by our customers, as well as any other prior General Terms and Conditions of Sale that might appear in our documents or have been agreed to through another means and any other general conditions of purchase issued by our customers.
Any modification to the present General Terms and Conditions of Sale requires our written approval.
These General Terms & Conditions of Sale are subject to change.
Furthermore, the only General Terms & Conditions of Sale that are legally applicable and enforceable against MERMET SAS are those contained in its website at the following address: www.sunscreen-mermet.fr
All orders shall be placed in writing. The sales agreement only becomes final upon written acceptance of the order by our Company addressed to our customers in the Confirmation of Order and is subject to acceptance of the present General Terms and Conditions of Sale by our customers.
3.1 Unless firm lead time expressly agreed to in writing between the parties, the delivery times indicated in the Confirmation of Order are estimates. The non-observance of the delivery date cannot be used to enter a claim for penalties, damages or interest or to cancel the order.
3.2 Except when expressly agreed otherwise, sales are made Ex-Works (latest version of Incoterms published by the ICC at the time of the Confirmation of Order). In all cases, and regardless of the applicable Incoterms, if the Customer fails to take delivery of the goods in accordance with the provisions defined in the applicable Incoterms, or if the customer does not provide the necessary instructions for the proper performance of our delivery obligation, then the transfer of risks and costs shall take place even before delivery is effected.
3.3 Our involvement in the transport process or the choice of carrier shall not in any event confer on us the function or liabilities of a carrier or freight forwarder. It is the Customer’s responsibility to make any relevant representations to the carrier.
3.4 In the event of a delay in delivery caused by the Customer, the latter shall be required to pay for any damage that our Company may incur as a result of such a delay, in particular additional transport and storage expenses.
3.5 We reserve the right to dispatch and invoice an amount of products which may vary within a limit of 10% in relation to the amount stated in the Confirmation of Order. The Customer shall take delivery of the actual quantity that has been delivered within this tolerance and shall pay the corresponding price.
4.1 Without prejudice to the steps to be taken by the Customer with regard to the carrier as described in Article L.133-3 of the Commercial code, we shall not accept a claim involving an apparent defect and/or a non-compliance affecting the delivered products, unless this is done so in writing, sent by registered letter with acknowledgement of receipt and within the time frame defined in the aforementioned Article of the said code.
4.2 Our liability cannot in any circumstances be invoked in the event of destruction, breakdown, loss or theft during transport, even when we select the carrier.
5. CLAIM - RETURN OF PRODUCTS
5.1 It is the Customer’s responsibility to provide all supporting evidence as to the existence of any claimed defects (hidden and/or apparent) or shortages (beyond the 10% tolerance) or non-conformity, and also regarding the date of discovery in the event of hidden defects.
5.2 To be admissible, any claim shall be lodged in writing, within ten (10) calendar days following delivery, in the event of non-conformity and/or apparent defects or within ten (10) days following discovery for the guarantee against hidden defects.
5.3 No return of products may be performed by the Customer without our prior and express written consent and by the carrier of our choice. Return costs shall be payable by us if the defects (apparent/hidden), shortages or non-conformity are verified by us or by our agent.
5.4 After our acceptance of the validity of the Customer’s claims, we shall only be bound to replace the items that are non-conforming or those that are affected by hidden or apparent defects and/or to supply extra quantities to make up for the shortages at our own expense, or to issue a credit note expressly limited to the value of the products in question, the Customer not being entitled to enter a claim for any other compensation or to cancel the order. In no circumstances shall the compensation due be higher than the value of the products replaced.
5.5 The claim made by the Customer under the terms and according to the procedures described in clause 5 does not relieve the Customer of their obligation to pay the total value of the invoice on its due date. If necessary a credit note will subsequently be issued under the terms of clause 5.4.
5.6 Defects and damage to the delivered products resulting from abnormal conditions of storage and/or conservation on the Customer’s premises or their agent’s or representative’s premises shall not constitute the necessary conditions for the application of our legal guarantee.
5.7 Taking into account the Customer’s professional and technical expertise, the Customer shall assume all risks and liabilities connected with their intended use of the said product, either by itself or in combination with other materials.
6. PRICES – PAYMENT TERMS
6.1 The prices stated in our Confirmation of Order are valid for a maximum term of one month from the date of issue. Except when expressly stated otherwise, prices are understood to be before taxes, Ex Works.
Prices stated in documents other than the Confirmation of Order (catalogues, price lists and other documents) do not bind our Company unless they are mentioned in the Confirmation of Order.
6.2 In the event of a price increase between the date of the Confirmation of Order and the anticipated delivery date, the Customer shall be notified thereof and shall have a period of fifteen (15) days to cancel the order. On the expiry of this term, the Customer shall be legally deemed to have accepted the new price.
6.3 Unless otherwise expressly agreed, our invoices are payable within thirty (30) days from the date of invoice, without the application of a discount. According to Article L.441-3 of the Commercial Code, payment is deemed to have been made on the date on which the funds are made available to our Company. It is therefore the Customer’s responsibility to take whatever measures are necessary with regard to the due date of the invoice and its means of payment, so that the operation to credit our Company’s bank account is carried out no later than the due date. Unless a claim has been lodged within ten (10) calendar days, the Customer shall be deemed to have approved the accounts documents sent by our Company.
6.4 In the event of payment after the due date, late payment penalties shall be calculated as of the day following the due date up to the date of actual payment at a rate of 12% per annum (Articles L.441-3 and L.441-5 of the Commercial code). These penalties are payable upon receipt of our notice informing the Customer that the charges have been applied to their account. Any delay in settlement (partial or total) shall be deemed to be equivalent to a lack of payment justifying the suspension of ongoing deliveries, after formal notice by fax which has not elicited a response within twenty-four (24) hours (calculated in working days). Furthermore, we shall be authorised to suspend subsequent deliveries or, if necessary, to demand settlement prior to shipment of subsequent orders. A failure to pay when due of a single item or a single invoice or on a single due date in the event of staggered payments, makes all our debts immediately payable even if they are not yet due, without formal notice and de jure.
Moreover, in the event of the partial or total non-payment of a due invoice, the products shall be immediately placed at our disposal, unless we do not demand the return thereof at the Customer’s own expense.
Furthermore, eight (8) calendar days after a formal notice by registered letter with acknowledgement of receipt has failed to elicit a response, the sale may be cancelled automatically de jure, if we so choose, without prejudice to any damages and interest claimed of the Customer. The sums already paid by the Customer shall remain as acquired as initial damages and interest and without prejudice to all others.
6.5 In accordance with articles 441-6 c. com. et D. 441-5 c. com., any delay in payment entails, besides the late penalties, an obligation for the Customer to pay a lump sum of € 40 for recovery costs.
Additional compensation can be claimed on supporting documents when recovery costs exceed the amount of the fixed allowance.
6.6 We reserve the right, during the performance of the agreement, to demand to the Customer any guarantee that we deem necessary. The payment time frame granted to the Customer is always conditional on the maintenance of sufficient solvency to make full payment of sums due. Any circumstances which result in a reduction of the said solvency authorise us to both refuse any subsequent delivery without a cash payment prior to collection (no discount shall be granted thereby to the Customer), and to consider the totality of the invoices already issued as immediately due, unless the Customer provides us with guarantees which we accept.
The Customer is required to notify us of all changes in their situation (security of funds, etc.). We reserve the right, according to the changes brought to our attention, either to demand guarantees, or to cancel the order even if it has already been partially executed.
6.7 Allocation of the payments made by the Customer shall be made in the following order:
- recovery and legal costs;
- late payment penalties;
- unpaid invoices from the oldest to the most recent.
7. RETENTION OF TITLE
We retain ownership of the delivered products up to the payment in full of the prices including taxes (principal sum and related costs), as defined in clause 6.3.
Any contrary clause, particularly when inserted into the General Terms and Conditions of Sale, is deemed as non-written, pursuant to Article L.621-122 of the Commercial code. By express agreement, we shall be able to enforce the rights that we hold through this clause of reservation of ownership for any of our debts (of any type whatsoever) on the totality of our products in the possession of the Customer which are deemed to be unpaid according to the terms of the contract, and we may take them back or claim them as compensation for all our unpaid invoices, without prejudice to our right of cancellation of pending sales. For the duration of reservation of ownership, the risks having been transferred at the time of delivery, by application of the Incoterms, the Customer as bailee shall insure the products against all risks of damages or liability. These insurance contracts shall incorporate our status as owner. Any compensation as a result of damage shall first replace the products thus affected. The Customer undertakes to provide, upon our request, a certificate of insurance complying with the aforementioned conditions. The Customer is authorised within the context of their normal operations to process the delivered products. However, in the event of processing, the Customer undertakes to pay us immediately the amount of the price remaining due.
The Customer is required to inform us immediately of any seizure to the benefit of a third party regarding the delivered products subject to reservation of ownership.
8. CONTRACTUAL GUARANTEES
8.1 The guarantees relating to our products are indicated in specific contract documents, such as the certificates of guarantee and technical specifications files for the products, whenever they are expressly incorporated into the sales agreement.
8.2 These guarantees may only be invoked under circumstances where our products have been transported, stored, made-up, processed and, more generally used, in normal conditions and according to good engineering practices. In the event of a dispute, it is the Customer’s responsibility to prove that the terms of application of the aforementioned guarantees have been respected.
9. FORCE MAJEURE
9.1 Unintentional consequences are considered as acts of force majeure or extraordinary events beyond the control of the parties if they cannot be reasonably predicted, avoided, or overcome, insofar as their occurrence renders the performance of the obligations totally impossible.
Most notably the following are defined as acts of force majeure or extraordinary events which release us from our obligation to deliver within the initial deadline: strikes by all or part of our personnel or by our usual carriers, fire, flood, war, production stoppages due to extraordinary breakdowns, the inability to source raw materials, epidemics, seasonal or emergency (thaw-related) roadway load restrictions, roadblocks, stoppage from energy supply disruption or break in supply for a reason not attributable to our Company, modification or refusal to grant a license, as well as any other cause for a break in supply attributable to our suppliers. In such circumstances, we shall advise the Customer in writing within twenty-four (24) hours (calculated in working days) from the date of occurrence of the event, the agreement thus being cancelled de jure without compensation as of the date of occurrence of the event. If the event were to take place more than thirty (30) calendar days from the date of occurrence of same, the sales agreement may be cancelled by the most diligent party without either one of the parties being able to claim damages or interest. This cancellation shall take effect from the date of first submission of the registered letter with acknowledgement of receipt terminating the said sales agreement.
10.1 In general, and subject to the provisions of clause 8 (contractual guarantees), our liability (except for wilful misrepresentation or a breach equivalent to wilful misrepresentation) is limited to direct physical harm and direct material damages, and shall not exceed 10% of the amount of the invoice excluding taxes.
10.2 Accordingly, the Customer, acting both on their own behalf as well as that of their insurers, waives any recourse against us and holds us harmless against any recourse issuing from third parties, for damages (in particular for operating losses), which either because of their nature or their amount do not enter within the liability limitation contemplated within this clause 10.
10.3 This clause 10 shall not in any event prevent or restrict the exercise of an action in liability for hidden defect by the Customer who fulfils the legal conditions necessary to be able to benefit from such an action.
11. ANTICIPATED CANCELLATION
11.1 Notwithstanding the provisions of clause 6 above, in the event of a serious breach by the Customer of one of its obligations, we may suspend or cancel the pending agreements, without prior notice or compensation.
11.2 The same will happen if the Customer were to become the subject of a collective procedure or liquidation proceeding or more generally, of a measure to restrain or cancel the normal powers of its corporate/company leaders.
12. OWNERSHIP OF DESIGNS
Nous conservons intégralement la propriété de nos études, plans, formulations et autres documents et données techniques qui ne peuvent être sans autorisation écrite et préalable, ni utilisés par le Client, ni recopiés, ni reproduits, ni communiqués à des tiers à quelque titre et sous quelque modalité que ce soit.
Le Client nous garantit contre toute action, réclamation ou procédure judicaire d’un tiers en contrefaçon d’un brevet et de tout droit industriel provenant des plans, documents et données techniques transmis par le Client. En contrepartie, nous prendrons en charge la défense du Client mis en cause par un tiers dans le cadre d’une procédure judiciaire basée sur une contrefaçon ou de toute violation des droits de propriété industrielle invoquée de nos produits, à condition que nous soyons informés par lettre recommandée avec accusé de réception dans un délai maximal de dix (10) jours calendaires suivant la mise en cause du Client et que ce dernier nous apporte toute information et assistance utiles au suivi de la procédure.
13. FINAL DESTINATION CONTROLS / EXPORT CONTROLS
Some of our products are subject to final destination controls and/or restrictions on export. Their circulation accordingly being subject to special administrative authorisation, the Customer undertakes to take any appropriate measure in accordance with local regulations in force concerning the controls on export. Additionally, the Customer will supply us with all the necessary information with regard to our export obligations.
14. JURISDICTION – APPLICABLE LAW
14.1 By express agreement, sole jurisdiction is attributed to the Vienne (Isère, France) Commercial court as a result of disputes arising between the parties during their business relations, irrespective of the place of delivery, the accepted payment method, and even in the event of the introduction of third parties or multiple defendants.
14.2 Sales are subject to French Law in their entirety, excluding the provisions of the Vienna Convention of 11 April 1980 on international agreements for the sales of goods. In the event of dispute concerning the application or interpretation of the present document, the text in French shall prevail.
15.1 It is expressly agreed that the fact of the breach by one of the parties of any of its obligations shall not result in the immediate cessation of all relations, such as the cancellation of ongoing orders and/or the cancellation of the sale of already delivered products.
15.2 In the event of an agreement concluded with an exclusivity clause in favour of the Customer, the first breach on its part shall automatically entail the end of the exclusivity without further formality.