POUCHARD TUBES ET BARRES,
36 rue Denis Papin, ZI de Mitry-Compans, 77290 Mitry-Mory,
Capital 1.000.000,00 Euros,
849 442 132 RCS Meaux
These General Purchasing Conditions (hereinafter the "GPC") apply exclusively to any purchase of any materials, objects, components or services (hereinafter the "Product(s)") offered or provided by any supplier or service provider (hereinafter the "Supplier") to POUCHARD TUBES ET BARRES, its agents or representatives (hereinafter the "Purchaser"). They form an integral part of any order placed by the Purchaser with the Supplier.
The order (hereinafter the "Order") includes the GTC, the purchase order and all documents attached to the Order such as technical, commercial and administrative specifications required of the Supplier, these documents constituting the entire contract to the exclusion of any other document which has not been expressly accepted by the Purchaser and in particular catalogs, prospectuses, advertisements, notices, which have only an informative and indicative, non-contractual value.
In the absence of contractual provisions to the contrary, expressly agreed in writing, which may result from negotiations between the Purchaser and the Supplier (hereinafter the "Parties"), the GTC shall prevail over any general terms and conditions, in particular the Supplier's terms and conditions of sale. In the absence of express acceptance of the Supplier's general terms and conditions in the Order, their application shall be excluded and such general terms and conditions shall be deemed null and unwritten by operation of law.
In the absence of such contractual provisions to the contrary, the mere fact that the Supplier accepts the Order implies that the Supplier has read and accepted the Purchaser's GTC in their entirety.
The GTC may be consulted on the Purchaser's website at the following address: https://www.pouchard.fr/, and may be modified at any time without prior notice. These modifications are binding on the Supplier, who must therefore regularly refer to the aforementioned site to check the current GTC.
The Order is issued following negotiations between the parties based on the Buyer's General Terms and Conditions. All purchases of Products are subject to a purchase order, it being specified that the Order is only binding on the Purchaser if it is signed by a representative of the Purchaser duly authorized to issue Orders. Orders placed by e-mail, verbally or by telephone are only valid if confirmed by a purchase order.
Each Order must be accepted within a maximum of 5 (five) days from the date it is sent, failing which the Order may be cancelled by the Purchaser without any obligation to justify itself or, if not, will be treated as having been accepted without reservation by the Supplier.
Acceptance of an Order or commencement of performance of said Order by the Supplier shall be deemed acceptance by the Supplier of said Order and of the GTC as well as of the special clauses and conditions contained in the purchase order or contract referring to the GTC.
If the Supplier accepts the Order with reservations, it shall notify the Purchaser thereof within five (5) days of receipt of the Order in a separate written document. In this case, the Buyer will no longer be bound by the said Order unless it confirms its acceptance of the said modifications in writing.
It is imperative that the following references be indicated on all the Supplier's documents relating to the Order: Supplier code, Order number, Buyer reference, place of delivery and invoicing address.
The Purchaser's Order shall be deemed accepted and final when the Supplier confirms acceptance of the Order, within five (5) working days from the date of issue of the Order, by means of a dated and signed acknowledgement of receipt.
Any silence or inaction on the part of the Purchaser with regard to a clause or condition of the Supplier which differs from the Order shall have no legal effect and shall not constitute acceptance on the part of the Purchaser.
The Supplier undertakes to deliver the Products and/or Services to the places/dates/deadlines indicated on the order form and during the opening hours of the receiving department.
Unless otherwise specified, all deliveries of Products must be accompanied by :
Packaging and identification shall be carried out in accordance with the Order and current regulations and standards. In particular, the Products must be correctly and sufficiently packaged, in appropriate packaging taking into account their nature and the precautions to be taken in order to protect them against bad weather, corrosion, loading or unloading accidents, transport and storage constraints, vibrations or shocks, etc. The packages must be clearly identified by reference to the Order. Packages shall be clearly identified by reference to the corresponding purchase order issued by the Purchaser.
The Supplier shall be liable for breakage, shortages and damage resulting from incorrect or unsuitable packaging, marking or labelling.
All materials requiring customs clearance shall be at the Supplier's expense.
In the absence of any provision to the contrary in the Order, the terms of delivery of the Products shall be "delivered to the agreed destination - DAP - Incoterms 2010" at the place of delivery of the Products indicated in the Order.
Unless otherwise specified in the Order, transport of the Products shall be at the Supplier's risk and expense.
The Purchaser reserves the right to refuse all or part of the delivery of the Products and to return or make available, at the Supplier's expense, risk and peril, any Product :
The absence of reservations or complaints upon acceptance of delivery does not constitute final acceptance of the Products delivered, nor does it constitute a waiver by the Buyer of any subsequent recourse due to non-conformities in the Order or to defects in the Products, whether apparent or not.
The Products must meet the requirements set out in the Order, as well as the regulations and standards in force. In the event of non-conforming Products, the Purchaser shall inform the Supplier in writing and reserves the right, at its discretion, to:
For all non-conforming deliveries, the Purchaser shall draw up a declaration of dispute with the corresponding debit note.
The deadlines agreed between the Parties, in particular the date set for delivery indicated on the order form, are imperative and their observance constitutes for the Purchaser an essential cause without which it would not have contracted.
In the event of late delivery, the Supplier shall immediately notify the Purchaser in writing, specifying, in particular :
Any Order delivered before the "earliest" delivery date may give rise to the return of the goods at the Supplier's expense.
Similarly, any Order not delivered within the "latest" delivery date may be cancelled by the Purchaser, who will, if he so wishes, return the goods at the Supplier's expense.
In the event of failure to meet contractual delivery dates, the Purchaser reserves the right, at his discretion and without prior formal notice :
These penalties are not in full discharge of the Buyer's obligations and cannot be considered as a fixed and definitive compensation for the prejudice suffered by the Buyer.
Any retention of title clause delaying the transfer of ownership as provided for by common law is excluded.
The applicable prices are those mentioned in the Order. They are firm and non-revisable. Unless otherwise agreed, they are "delivered to the agreed destination - DAP - Incoterms 2010" at the place of delivery of the Products indicated in the Order. These prices must include the cost of packaging the Products and any other cost, risk or charge relating to the execution of the Order, as well as any cost relating to packaging suitable for transport and handling.
Any additional cost of any kind whatsoever must be the subject of the Purchaser's prior written agreement by means of an amendment to the Order specifically indicated on the purchase order. Orders do not give rise to any systematic payment in advance (neither down payments nor deposits), unless expressly stipulated in the Order and special conditions.
In the event that lower prices or higher discounts have been attributed by the Supplier to other companies for volumes of products or services comparable to those purchased by the Purchaser, the Parties will meet to discuss how this information should be taken into account.
Any change in the Supplier's price or terms of payment must be communicated to the Purchaser by any means (including electronic mail) bearing a notice of receipt at least one (1) month before its date of application.
Failing this, the change in price or terms of sale will not be applicable to the Purchaser until one (1) month after it has been brought to the Purchaser's attention.
After each delivery of Products pursuant to an Order, the Supplier shall send the original invoices, in duplicate, made out to POUCHARD TUBES ET BARRES, Service Comptabilité Fournisseur, in accordance with legal requirements, in particular the mentions provided for in Article L. 441-3 of the French Commercial Code and those of the Purchaser, accompanied by any supporting documents signed by both parties attesting to the receipt of the Products and/or Services.
They must also include the Order number as well as the mode of transport and destination of the goods.
The Purchaser reserves the right to refuse any invoice :
For the calculation of payment terms, the date to be taken into consideration is that of the actual receipt of the goods or performance of the services.
The Supplier expressly authorizes the Purchaser to set off the sums owed by the Purchaser or any assignee of the invoices against those owed by the Supplier, for any reason whatsoever.
Subject to the conformity of the Products and unless otherwise stipulated on the Order, payments shall be made by the Buyer within 45 days of the invoice date.
In the event of late payment, interest shall be limited to three (3) times the legal interest rate. Any late payment will give rise to a flat-rate compensation for collection costs of 40 euros.
The Supplier warrants that, from the date of delivery, the Products, including packaging and labelling :
The Supplier shall be liable for any defects or faults affecting the Products in accordance with applicable law and its contractual obligations. It shall indemnify the Purchaser against any claim of any nature whatsoever which may be made in this respect, undertakes to bear all the harmful consequences which may result for the Purchaser and/or third parties, and undertakes in particular to participate actively and financially in any recall campaign.
Unless otherwise provided in the Order, the Supplier undertakes to guarantee the Products, whatever the reason for their non-conformity, for a minimum period of two (2) years from the date of delivery of the Products. The Supplier therefore undertakes towards the Purchaser and towards any sub-purchaser customer, throughout this period, to ensure at its exclusive expense the maintenance, repair or replacement of the defective Products (at the Purchaser's option), it being specified that this warranty means that the Supplier will bear all costs relating to the repair or replacement of the Products (such as labour, travel, transport, etc.) without prejudice to the application of the terms of article 5.2 below. Any defective Product repaired or replaced will be subject to a warranty under the same terms as those set out above.
In the event of a lack of conformity, the Buyer will therefore have the choice between :
Non-conforming Products shall be returned, where applicable, to the Supplier carriage paid, accompanied by a "return slip" specifying their condition.
The Supplier remains liable under common law, including beyond the contractual warranty period, for any defects or faults in the Products.
The Supplier is liable and undertakes to assume all direct and indirect pecuniary consequences resulting from all direct, indirect, incidental, special, material or immaterial, consequential or non-consequential damages of any kind, including lost profits suffered by the Purchaser, its personnel or a third party as a result of late delivery, defects in the Products or any other shortcomings on the part of the Supplier, but also as a result of any non-performance or poor performance 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, repossession with reimbursement of the customer, modification and/or destruction of the Products, whether such measures are ordered by the public authorities (including the courts) or are voluntary, and whatever the grounds invoked, in particular in the event of latent defect, non-compliance with a standard or regulation, or safety defect.
Such damages shall be compensated by the Supplier in full, without any limitation as to their nature or amount.
The Supplier declares and warrants that it has taken out, both on its own behalf and on behalf of any subcontractors, an insurance policy with a reputable and solvent insurance company to cover the financial consequences of any professional civil liability which it or any subcontractors may incur, in particular with regard to the Purchaser, its personnel and/or third parties, and which is appropriate to the purpose and scope of the contractual relationship.
The Supplier undertakes to justify, at any time, upon simple request by the Purchaser, the effective subscription of the insurance policy and the payment of the corresponding premiums. It is the Supplier's responsibility to inform the Purchaser of any modification, suspension or termination of its insurance policy.
The insurance policy taken out by the Supplier may in no case be considered as limiting its obligations and responsibilities under the Order.
Except with the prior written consent of the Purchaser, the Supplier may not transfer in any manner whatsoever or assign to a third party all or part of the rights and obligations under the Order. In the event of a direct or indirect change of control of the Supplier, assignment or fund, the Purchaser shall have the right to terminate the Order in accordance with Article 9.
The Order may not be subcontracted, in whole or in part, directly or indirectly, by the Supplier, without the prior and express agreement of the Purchaser.
If the Supplier is authorized to subcontract all or part of the Order to third parties, such subcontracting operations shall be at the Supplier's sole financial expense. The Supplier shall remain solely and entirely responsible to the Purchaser for the complete and perfect performance of the Order and for compliance with the GCP by its subcontractors. The Supplier shall notify all subcontractors of the clauses of the present GTC as well as those of the Order, and shall provide them with all information concerning the Purchaser's requirements, the latter reserving the right to refuse any subcontractor who does not comply with these conditions.
In this case, the Supplier shall ensure that its subcontractors also comply with the obligations arising from the French Labor Code. It also undertakes to comply with the provisions of Law no. 75-1334 of December 31, 1975 relating to subcontracting.
In the event of assignment or subcontracting by the Supplier without the prior written authorization of the Purchaser, the latter may terminate the Order by operation of law, without the Supplier being entitled to claim any compensation whatsoever.
Each of the Parties declares that it expressly and knowingly waives its right to avail itself of the provisions of article 1195 of the French Civil Code and of the unforeseeable circumstances provided for therein. The Parties undertake to assume their obligations even if the contractual balance is upset by circumstances which were unforeseeable when the contract was concluded, even if their performance proves excessively onerous, and to bear all the economic and financial consequences thereof.
Any event beyond the control of the debtor and reasonably unforeseeable at the time of formation of the contract, and which the Parties were unable to avoid or overcome at the time of its occurrence, rendering total or partial performance of the obligations under the contract impossible (including but not limited to a production stoppage, shortage of materials, raw materials or labor, interruption of transport, fire, flood, manufacturing accident, etc.) shall be deemed to be a cause for exoneration of the Parties' obligations. In the event of the occurrence of such an event, the affected Party must immediately inform the other Party by telephone or e-mail, followed by confirmation by registered letter with acknowledgement of receipt
. If the event is only temporary, the effects of the contract will be suspended until the situation has been restored to normal.
If the event of force majeure which obliges the Supplier to suspend the performance of its obligations continues for more than thirty (30) days, the Purchaser may request the automatic termination of the Order, with immediate effect, by sending a registered letter with acknowledgement of receipt, without compensation on either side for such termination.
Any Order may be terminated automatically at any time by either Party, Supplier or Purchaser, in the event of failure by the other Party to comply with any of its obligations, fifteen (15) days after formal notice has remained without effect, sent by registered letter with acknowledgement of receipt by the aggrieved Party to the defaulting Party, without prejudice to the aggrieved Party's right to claim damages from the defaulting Party for any prejudice it may have suffered.
The Supplier undertakes to comply with all provisions of the French Labour Code, in particular with regard to concealed work and child labour. The Supplier also undertakes to ensure that the Order is carried out in accordance with the social legislation in force in the country in which the Order is carried out, for as long as its commercial relations with the Purchaser last.
The Supplier will take all necessary measures to prevent any fraudulent activity by its representatives with regard to payments made by the Purchaser.
The Supplier undertakes and warrants that it has not given and will not give, nor agree to give, to any employee, agent or representative of the Purchaser any gift or commission in connection with the Purchaser's Order.
Should the Supplier fail to comply with these provisions, the Purchaser may automatically terminate the current Order without prejudice to any recourse that the Purchaser may decide to take against the Supplier.
The Supplier undertakes to ensure that its employees and subcontractors comply with the obligations set forth in this Article.
All information, commercial and technical documents of any kind, including studies or technical opinions, arising from the execution of the order/contract and whether or not protected by intellectual property rights (hereinafter the "Documents and Information") to the Supplier shall become and remain the exclusive property of the Purchaser.
The Supplier undertakes to treat the Documents and Information as confidential and shall refrain from communicating and/or transmitting them in any way whatsoever to third parties, except with the prior written authorization of the Purchaser.
The Supplier shall refrain from referring to its business relations with the Purchaser, except with the prior written authorization of the Purchaser.
All intellectual property rights are assigned to the Purchaser. The price mentioned in the order includes the price of the transfer of all intellectual property rights.
In this respect, if the Documents and Information include copyrights, the Supplier transfers to us exclusively and definitively, for the legal duration of the copyrights and for the whole world, all the copyrights attached to the said Documents and Information. These rights include the rights of reproduction, representation, modification, adaptation, translation and commercialization in any form, in whole or in part, by any means and on any media known or to be known.
The Supplier must guarantee that no third party can assert any rights or claims related to an infringement of intellectual property rights resulting from the supplies covered by the order and/or their exploitation/use, in particular all real rights and intellectual property rights such as patent rights, trademarks, models, drawings and copyrights (hereinafter: "Property Rights").
If a third party asserts a claim against the Purchaser for infringement of Property Rights concerning an order made by the Supplier, the Supplier shall, at its own expense, notwithstanding the Purchaser's other rights, at the Purchaser's option, either obtain a right of use or modify or replace the order so that the Property Rights can no longer be contested and in conformity in all respects with the order.
It is hereby specified that the Supplier undertakes, at its own expense, to take back any stocks of the orders concerned which have already been delivered. In the context of the aforementioned claims, any sums/expenses that the Purchaser may have to bear for any reason whatsoever, in particular in respect of costs, fees, damages and interest, will be reimbursed in full by the Supplier at the Purchaser's first request and without delay.
The Supplier undertakes to comply with and guarantees compliance with all national and international export control laws and regulations.
The Supplier shall obtain all national and international export licenses or similar permits required to comply with all applicable export control laws and regulations.
The Supplier undertakes to hold the Purchaser harmless and indemnify the Purchaser against all claims and costs (including attorneys' fees) arising from the Supplier's failure to comply with applicable export control regulations.
As part of the performance of the Order, the Supplier guarantees the Purchaser that the Products comply with applicable regulations and standards concerning, in particular, health, hygiene, safety, Product traceability and environmental protection. The Supplier shall provide the Purchaser, upon delivery or at the Purchaser's first request, with the certificates required by regulations and relating to the Products. This includes application of the provisions of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH Regulation) and Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures (CLP Regulation).
In addition, the Supplier undertakes :
Any breach of the above provisions will result in the immediate termination of commercial relations, without prior notice.
Only the French version of these General Terms and Conditions shall prevail between the Parties, irrespective of any translations made by either Party.
Any dispute relating to the application, interpretation and performance of these General Terms and Conditions and all contractual relations between the Parties shall be governed by the law of the country in which the Buyer placing the Order has its registered office, i.e. French law. The Parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) as well as the rules of private international law.
Any differences that may arise between the Parties as to the validity, interpretation or performance of these GTC and the contractual relations between the Purchaser and the Supplier shall be the subject of an attempt at amicable resolution between the Parties.
In the event of failure to reach an amicable settlement, the dispute shall be referred to the Commercial Court having jurisdiction over the Purchaser's registered office, even in the event of a warranty claim or multiple defendants. However, the Purchaser reserves the exclusive right to bring any dispute involving the Supplier before the Courts of the jurisdiction of the Supplier's registered office or before the Courts of the jurisdiction of the place of delivery of the Products.
Version: June 2019