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 Terms and Conditions of Sale (hereinafter the "GTCS") apply exclusively and specify the rights and obligations of POUCHARD TUBES ET BARRES, its agents or representatives (hereinafter the "Vendor") and its customer (hereinafter the "Customer") in connection with any sale or supply of products and services (hereinafter the "Product(s)").
Any order placed with the Vendor implies that the Customer has read and unreservedly accepted the Vendor's General Terms and Conditions of Sale. The application of the Customer's general terms and conditions of purchase is excluded, and the latter are deemed null and void by operation of law, even if the Customer refers to them in his order form, unless the Vendor has agreed otherwise prior to the order in writing between the Vendor and the Customer (hereinafter the "Parties").
The Customer's full acceptance of these GTS, together with the Seller's specific terms and conditions contained in its offer and order acknowledgement, together with any other documents expressly referred to in the order acknowledgement, constitute the entire agreement between the Parties (hereinafter the "Agreement"), to the exclusion of any other document, in particular catalogs, prospectuses, advertisements and notices, which are for information purposes only and are non-contractual.
The GCS can be consulted on the Vendor's website at the following address: www.pouchard.fr, which may be modified at any time and without prior notice. Such modifications are binding on the Customer, who must therefore refer regularly to the aforementioned site to check the current GTC.
Commercial offers made by the Vendor are valid for a period of two (2) weeks from the date of issue, unless otherwise stated on the offer. Where applicable, it is advisable for the Customer to provide the Vendor with precise specifications concerning its needs, so as to enable the Vendor to make offers that are as accurate as possible, particularly but not exclusively in the case of the sale of custom-made or "turnkey" products.
An order becomes definitive only after written confirmation by the Vendor in the form of an order acknowledgement on the one hand, and coverage of the credit risk by the Vendor's credit insurer or any other means guaranteeing the risk (bank guarantees, advances, etc.) on the other. The order thus accepted may not be partially or totally modified by the Customer during execution without the Vendor's prior written consent.
Any partial or total cancellation of an order during execution is impossible and will not be accepted by the Vendor.
All information and/or specifications, all prices and/or tariffs indicated in the Vendor's catalogs and/or documentation are given for information purposes only and will only be binding on the Vendor once they have been confirmed in writing by the acknowledgement of receipt of the order.
No request may be made for a total amount of less than 150 euors exclusive of VAT.
Should the Customer place an order with the Vendor without having paid for the previous order(s), the Vendor may refuse to honour the order and deliver the goods concerned without the Customer being entitled to claim any compensation whatsoever for any reason whatsoever.
The price of the products is that stipulated on the order acknowledgement. In the absence of express stipulation to the contrary in the order acknowledgement, the price is net, in euros and without discount for goods at disposal with cash payment on collection. Intra-Community deliveries will be invoiced free of V.A.T. in accordance with article 262 Ter-1 of the French General Tax Code.
Unless otherwise stipulated on the order acknowledgement, our offers are deemed to be made "Ex-Works/ A l'Usine" (Incoterm 2010), and all taxes, transport, packaging and similar costs associated with the order are to be borne exclusively by the customer.
Unless expressly agreed otherwise by the Vendor and set out as a special condition in the order acknowledgement, payments are to be made by the Customer no later than 45 days from the end of the month of invoicing, by cheque, bank transfer or bill of exchange (draft) raised in the currency stipulated.
Payment is net of all deductions, withholdings or other charges.
Unless otherwise stipulated by public policy, failure to pay all or part of the price on the agreed due date shall render all outstanding invoices or bills of exchange, as well as all outstanding orders on proforma invoices, immediately due and payable for all orders in progress.
In accordance with article L. 441-6, I of the French Commercial Code, failure to pay shall entail the following consequences, ipso jure and without prior formal notice:
By way of penalty in accordance with the provisions of the French Civil Code, and without prejudice to any other damages, the Customer will automatically owe the Vendor all costs incurred in obtaining the withheld payment, without prior formal notice.
The Seller, using a credit insurer, reserves the right at any time to request cash payments and/or the constitution of guarantees and/or payment terms modified from the standard conditions in the event that the credit granted by the credit insurer for a Customer should be insufficient to cover the outstanding amount.
In the event of non-payment by the Customer and eight (8) days after formal notice by registered letter with acknowledgement of receipt has remained without effect, the Seller may terminate or suspend the performance of all or part of the Contract with immediate effect to the exclusive detriment of the Customer. The Vendor will notify the Customer of its decision by any means, and the goods must be made available to the Vendor immediately.
Unless otherwise expressly agreed in writing by the Vendor and set out as a special condition in the order acknowledgement, the transfer of risk to the Customer takes place at the Vendor's factory, before loading of the Products, in accordance with the Incoterm "Ex-Works/ A l'Usine" (Incoterm 2010).
Delivery times are given as an indication only and are not binding on the Vendor. Delays shall not justify any claim for damages, price reduction, cancellation of the order or termination of the Contract against the Seller. It is the Vendor's responsibility to inform the Customer of any such delay as soon as possible.
If dispatch of the goods is delayed due to the Customer's fault, a readiness invoice may be drawn up, payable within the same period as if the goods had been dispatched on the date stipulated in the contract.
If the Customer does not take possession of the delivery after notification of readiness for dispatch, he will be liable for 1% of the value of the Products per month of delay by way of storage costs.
All penalties for delay not expressly agreed in the documents listed in article 1 hereof are excluded. In the event that penalties for late delivery have been agreed, these shall be flat-rate and in full discharge of liabilities.
In the absence of a delivery report signed by both parties, in order to be valid, claims relating to apparent defects, to the composition and quantity of products delivered or their non-conformity with the delivery note must be made within 8 days of delivery of the products, without prejudice to the arrangements to be made with the carrier, failing which they will be rejected. They must be made before any processing.
It is the Customer's responsibility to provide full proof of any defects or missing Products. Unconditional acceptance of the Products ordered by the Customer covers any apparent defect and/or missing Product.
The submission of a complaint does not authorize the Customer to suspend payment of the invoice corresponding to the Products in question, nor to reduce the price thereof.
No Product may be returned to the Vendor without his prior agreement. In this case, returns must be made DAP ("Delivered at Place" Incoterms 2010) to the address indicated by the Seller. The Vendor declines all responsibility in the event of loss or damage to packages. In the latter case, the defect cannot be proved and the non-conformity demonstrated.
If, after inspection, an apparent defect or shortage is found by the Vendor, the Customer may only request the Vendor to replace the non-conforming Products and/or to make up for the shortages at the Vendor's expense, without the Customer being entitled to claim any compensation whatsoever or to cancel the order.
Unless otherwise agreed, the Vendor reserves the right to make partial deliveries, for which the corresponding invoices will be issued.
In accordance with current regulations, any sale or supply of Products is subject to legal warranties. The Vendor's commitment is strictly limited to the supply of Products in accordance with the contractual specifications.
The Vendor shall in no way be held responsible for the conformity of the Product to the Customer's intended use; only the conformity of the Product to the contractual specifications is guaranteed. Any technical advice provided by the Vendor, whether orally, in writing or by means of tests, before and/or during the use of the Products, shall not in any way whatsoever constitute a commitment on the part of the Vendor or be interpreted as demonstrating the existence of an obligation on the part of the Vendor to advise the Customer.
The Customer undertakes to communicate and facilitate the consultation of all information (if possible in electronic form) and all documents necessary for the Vendor to perform its obligations under the best possible conditions and deadlines, to clearly define its needs and to supply quality, documented and exhaustive data within the required deadlines, as well as to collaborate actively and permanently with the Vendor.
The Seller guarantees that the Products conform to the contractual specifications. Deviations in quantity and quality are tolerated within the limits of current standards or common practice. The Products will be deemed delivered notwithstanding any reasonable weight deviation resulting from customary tolerances resulting from the capabilities of the production tools of the manufacturers of the Products delivered.
It is the Customer's responsibility to prove that the Products supplied under the Contract do not conform to the contractual warranty. The Customer must notify the Vendor in writing within five (5) working days of the discovery of the non-conformity or defect. In this case, if the defect is proven, the Vendor reserves the right to proceed directly or indirectly with any on-site observation and verification, and will be obliged at its discretion either to replace the non-conforming Products at its expense, or to reimburse the Customer in the form of a credit note for the value of the invoiced price, to the exclusion of any other recourse.
The following defects are excluded from the present warranty:
The Vendor declines all responsibility for processing work carried out on Products outside its factories.
In the event that the Vendor's liability is established, in particular in connection with the supply of Products, the performance of the Contract, negligence on the part of the Vendor or for any other reason, such liability shall be limited to compensation for damages up to the amount corresponding to the value of the Product which is the subject of the faulty performance or non-performance, and shall not exceed a maximum of 45.000 per order giving rise to a claim, unless expressly agreed by the Vendor.
The Vendor's liability may only be incurred for direct material damage and only in the event of fault on the part of the Vendor, proven by the Customer. Under no circumstances will the Seller be liable for damage caused by the fault and/or negligence of the Customer and/or a third party.
The Vendor's liability is expressly excluded for any indirect and/or consequential and/or non-consequential (within the meaning of insurance law) and/or financial damages and/or prejudices suffered by the Customer or a third party, resulting in particular, without this list being exhaustive, an action brought against the Customer by a third party, loss of profit, operating loss, loss of production, loss of sales, loss of data, deprivation of a right, interruption of a service rendered by a person or a good, damage to brand image, loss of opportunity, etc. Any action on the part of the Customer concerning a Product is time-barred after one year, at the latest on the date of expiry of the contractual warranty period for this Product.
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 debtor's control 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, making it impossible to perform all or part of the obligations under the Contract (including but not limited to a production stoppage, shortage of materials, raw materials or labor, interruption of transport, fire, flood, manufacturing accident, etc.) are considered causes 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, and the Vendor reserves the right to temporarily suspend delivery of the Products ordered by the Customer.
If the event of force majeure which obliges the Customer to suspend the performance of its obligations continues for more than thirty (30) days, the Vendor may request the termination of the Contract by operation of law, with immediate effect, by sending a registered letter with acknowledgement of receipt, without compensation for either party as a result of such termination.
In accordance with the provisions of articles 2367 et seq. of the French Civil Code, the Vendor retains full ownership of the Products covered by the Contract until full payment of the principal and ancillary costs has been made.
The delivery of bills of exchange or other instruments creating an obligation to pay does not constitute payment within the meaning of this clause.
From the time the Products are made available to Ex Works, the Customer assumes responsibility for any damage which the Products may suffer or cause for any reason whatsoever. The Customer undertakes to keep the Products in such a way that they cannot be confused with other Products, and to keep the identification marking intact.
Should the Customer fail to pay all or part of a due date, the Vendor reserves the right to demand the return of all Products delivered at the Customer's expense, risk and peril, without prejudice to any other right, in particular its right to cancel sales in progress.
Nevertheless, the Customer may resell and transform the Products under the following conditions:
In the event of sale and/or delivery of the Products, either as is or after transformation or incorporation, the Customer must inform the third party purchaser of the existence of the reservation of title clause and provide the Vendor with all information and documents necessary for the recovery of the assigned debt.
In the event of resale or transformation, the Customer undertakes to pay the Vendor immediately the part of the price still due.
The Vendor may freely assign all or part of its rights and obligations under a Contract with the Customer to any third party of its choice.
The Customer may not under any circumstances assign the rights and obligations acquired under this Contract without the express prior consent of the Vendor.
The Vendor reserves the right to use subcontractors for the performance of the Contract without the prior information and consent of the Customer, which the Customer acknowledges and accepts. The Customer will not subcontract all or part of its rights or obligations under the Contract to a third party without the prior agreement of the Vendor.
In the event of non-performance by the Customer of its contractual obligations, the Vendor may send the Customer a formal notice to perform by registered letter with acknowledgement of receipt and, on expiry of a period of fifteen (15) days or another period indicated in the order acknowledgement, if the formal notice has remained unsuccessful, notify the Customer by a second registered letter with acknowledgement of receipt of termination of the Contract and/or cancellation of the current order by operation of law.
Notwithstanding the foregoing, the Vendor reserves the right to terminate the Contract early, without the Customer being entitled to claim compensation of any kind whatsoever, in the following cases:
In the event of cancellation or termination of all or part of the Contract for any reason mentioned in this clause or in agreement with the Seller, the Products already manufactured or in the course of manufacture and the costs and expenses already incurred for the Contract shall be paid by the Customer.
The Customer undertakes to treat as confidential all commercial and technical information and documents, as well as all objects entrusted to it by the Vendor, which remain the exclusive property of the Vendor (who is the sole owner of the intellectual property rights) and shall refrain from communicating and/or transmitting them in any way whatsoever to third parties, without the Vendor's prior written authorization. The Customer shall not refer to its business relations with the Vendor without the Vendor's prior written authorization.
Only the French version of these G.S.C. shall prevail between the Parties, irrespective of any translations made by either Party.
Any dispute relating to the application, interpretation and performance of these G.S.C. and the sales they govern, which is not covered by these contractual stipulations, shall be subject to French law to the exclusion of any other 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 interpretation or execution of these GCS shall be subject to an attempt at amicable resolution between the Parties.
Should the attempt at amicable resolution fail, the dispute shall be brought before the Commercial Court in whose jurisdiction the Seller's registered office is located, with express waiver of any other jurisdiction, even in the event of a warranty claim or multiple defendants. Nevertheless, the Vendor reserves the right to bring the dispute before the Commercial Court of the jurisdiction of its relevant establishments.
The Vendor's failure to invoke any of the clauses of these GCS at a given time shall not constitute a waiver of its right to invoke the same clauses at a later time.
The Customer guarantees that it respects and will respect the legal provisions on the fight against corruption.
The Customer undertakes to respect the rules of ethics and acknowledges that the Products may be subject to export restrictions resulting from Community or American economic regulations or sanctions. The Seller declines all responsibility in the event of re-exportation of the Products by the Customer to a final destination prohibited by the regulations in force. The purchaser is responsible for compliance with the laws and regulations in force relating to the importation and use of the Products in the country of destination.
If any provision of the GTCS, or part thereof, is invalid under any rule of law, it shall be deemed unwritten, but shall not invalidate the other provisions of these GTCS, which shall remain in force between the Parties. Where applicable, any stipulation that is declared null and void shall be automatically replaced by the legally admissible rule that most closely approximates the will of the Parties. Any contractual modification is only valid after a written and signed agreement between the Parties.
Version: June 2019