General terms and conditions of sale ONDULINE SA
1/ Scope: Any order sent to our company (hereinafter "the Company") implies explicit acceptance by the customer (hereinafter the "Customer") of these terms and conditions and waiver by the Customer of its own purchasing conditions, regardless of the terms, even if the Customer has sent the Company such purchasing conditions or any other document. Neither general terms and conditions of the other party nor special conditions may prevail over these general terms and conditions of sale, without prior and written acceptance by our Company. The Customer recognizes that it has been duly informed on the content of these general terms and conditions of sales, and in particular it has received the information which determines the consent of the Parties to conclude the Contract.
2/ Orders – Formation of the Contract – Cancellation: Any order from the Customer must be made in writing and implies the Customer's acceptance, without reservation, of all the provisions contained in these terms and conditions of sale, which have been sent in advance to the Customer, and which the Customer acknowledges having read and freely accepted. Upon receipt of an order, the Company, if it accepts the order, will send the Customer an acknowledgement of receipt of the order (hereinafter the "Acknowledgement of Receipt") providing the description, quantity, price of the products ordered, estimated delivery time and, where appropriate, the place of delivery and Incoterms 2010 applicable, which, together with these terms and conditions of sales, constitute the contract (hereinafter the "Contract"). The Company cannot be held liable for obligations not specified in the Contract. In the event of total or partial cancellation of the Contract by the Customer less than 5 days before the delivery date of the products at the Company's plant/factory, the Client will pay 30% of the sales price of the products, excluding sales tax. If such cancellation occurs prior to the 5-days period above-mentioned, the indemnity owed by the Client will be 5% of the sales price of the products, excluding sales tax. In the case where, on the date of cancellation of the Contract, the Company has already incurred costs for its performance of the services under the Contract, the Customer shall pay the Company all costs incurred by the latter, in addition to the indemnity provided above.
3/ Delivery times – Place of delivery – Transfer of risks: The delivery times indicated on the Acknowledgement of Receipt or any other document are indicative. If the delivery time is missed for any reason, this shall in no case give the Customer the right to cancel the Contract or to reject the products object hereof. Moreover, our Company shall not be held liable for missing the indicative delivery date, nor shall this give rise to any deduction, compensation, penalties or damages. Unless otherwise stipulated in the Acknowledgement of Receipt or different agreement in writing by the parties, the sales are made Ex Works Incoterms 2010, of the place indicated on the Acknowledgement of Receipt. Accordingly, (i) all the risks associated with the products sold, including those resulting from force majeure, pursuant to the meaning of article 7, shall be transferred to the Customer at the time the products are handed over to the Customer at any of the Company's establishments ; (ii) the transport of products to the place of delivery specified in the Contract shall be made at the Customer's own expenses and risks, who shall, before picking up the products, or on receipt, make any necessary reservation with the shipping services.
4/ Prices – Payment terms: Even if there is a price list, the amount due by the Customer is that indicated in the Acknowledgement of Receipt. The prices are denominated in Euros and do not include taxes, insurance, transportation fees and costs, or customs clearance. Unless expressly stated otherwise, the price is payable within 30 days from the date of invoice, by bank transfer. No withholding of payment or any change in the form of a correction debit can be made by the Customer for any reason whatsoever. In case of late payment at the due date of all or part of an invoice, the amounts due shall automatically bear interest and all remaining amounts owed by the Customer will be immediately due and payable by right, the day after the invoice due date and until the invoice has been paid in full. The interest paid shall be based on the interest rate applied by the European Central Bank to its most recent refinancing operation, plus 10 percentage points. However, this rate may not, at any time, be less than 3 times the French legal interest rate. The Customer will also be liable for a minimum lump-sum indemnity in the amount of €40 for recovery costs. When the recovery costs are higher than this lump sum indemnity, the Company may ask the Customer to pay an additional indemnity in the amount of the costs incurred. Failure to pay all or part of an invoice on the due date will also result in the payment by the Customer of a lump-sum indemnity of an amount equal to 15% of the pre-tax price of the unpaid products as indicated on the invoice. This lump sum will be raised to 30% of the pre-tax price of the unpaid products, as indicated on the invoice, in the case of initiating a proceeding to have the product(s) returned in accordance with the retention of title clause, as laid down in article 8 hereof. To apply these interest charges and penalties, the Customer will be in default by virtue of the mere expiry of the payment term, without any further formality. The penalties/ indemnities set out in this article shall be payable by the Customer, without prejudice to the Company's right to claim damages for any loss. Failure to pay by the due date, even part of an invoice, may also result in automatic suspension of any procedure and obligation of the Company under the Contract.
5/ Warranty/ Liability: The placing of an order by the Customer also implies acceptance by the latter of our terms and conditions of warranty, in particular against any hidden defects/ default, as provided in the warranty document(s) applicable to the product(s) sold (hereinafter the "Warranty Certificate"), attached to these general terms and conditions of sale and which may be consulted on the following website www.onduline.com/warranty.The products sold by the Company are covered under the terms and conditions stipulated by the warranty document(s) applicable to the product(s) sold (Warranty Certificate). In particular, the legal warranty applicable to products intended for construction, when due, shall apply subject notably to their particular installation/use having been carried out in strict compliance with the requirements of the Company. The Company may not in any case be held liable for damages caused to movable personal property or real property which are not used by the Customer primarily for its private use or private consumption, in accordance with article 1386-15, paragraph 2 of the French Civil Code. In any event, and regardless of the extent and the cause of the damage that could be claimed by the Customer under the Contract, the liability of the Company may not exceed the total price paid by the Customer under the Contract subject of the claim. Furthermore, the Company may not be held liable for indirect damages or immaterial direct damages such as those including financial or operating losses, and therefore no compensation may be payable by the Company on such grounds.
6/ Hardship clause: In case of the occurrence of an external event beyond the control of the parties which have rendered for one party performance excessively onerous than could reasonably have been anticipated at the time of the conclusion of the Contract, the party may ask the other party to negotiate in good faith a modification of the Contract. In particular, the following events shall lead to a renegotiation, without this list being exhaustive: variation in raw material prices, change of customs duties, change of exchange rates, changes in legislation. In the absence of agreement between the parties within 15 days from the day the negotiation was asked, the parties shall be entitled to terminate the Contract within 15 days period delay from the failure of the negotiation, with a formal notice of 15 days. With regards to the balance of the contract, Parties expressly refrain, by derogation to article 1195 paragraph 2 of the French Civil Code, from unilaterally asking the judge to unilaterally modify the Contract.
7/ Force Majeure: Under these general terms and conditions of sale, a case of Force Majeure is considered as any event which is reasonably unforeseeable and insurmountable for the Company, making impossible or significantly more costly the execution of all or part of its contractual obligations. Without prejudice to the cases of force majeure referred to in the applicable warranty documents (Warranty Certificates), the following events in particular shall be considered as cases of Force Majeure, without this list being exhaustive: natural disasters, shortage of raw materials, fires, strikes, stopping production by the workers interfering with the preparation or execution of the Contract, interruption and/or delays in transportation, power failure, embargo, introduction of a new regulation prohibiting the marketing of the products or making it significantly more expensive, sabotage, intervention of civil or military authorities, acts of war, declared or undeclared hostilities, acts of terrorism or riots.
8/ RETENTION OF TITLE CLAUSE: THE PRODUCTS SUPPLIED BY THE COMPANY SHALL REMAIN THE PROPERTY OF THE LATTER UNTIL THE CUSTOMER HAS PAID FOR THEM IN FULL. THIS INCLUDES THEIR PRINCIPAL PRICE AND ANY INCIDENTAL AMOUNTS. DESPITE THE APPLICATION OF THIS RETENTION OF TITLE CLAUSE, ANY KIND OF RISKS RELATED TO THE PRODUCTS, EVEN IN CASE OF FORCE MAJEURE AS DEFINED IN ARTICLE 6 ABOVE OR THOSE RESULTING FROM EXTERNAL CAUSES, ARE TRANSFERRED TO THE CUSTOMER UNDER THE TERMS AND CONDITIONS SET FORTH IN ARTICLE 3 HEREOF. THE CUSTOMER MUST THEN PROMPTLY HAVE THE PRODUCTS INSURED. THE CUSTOMER SHALL TAKE ALL MEASURES NECESSARY TO ENSURE THAT THE DELIVERED PRODUCTS REMAIN IN THEIR ORIGINAL STATE AND REMAIN IDENTIFIABLE AS THE PROPERTY OF THE COMPANY UNTIL THEY HAVE BEEN PAID FOR IN FULL. WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY, THE CUSTOMER MAY NOT RESELL OR PROCESS THE PRODUCTS BEFORE PAYMENT HAS BEEN RECEIVED IN FULL. IF THE COMPANY AGREES TO THE RESALE OR PROCESSING OF THE PRODUCTS, IT MAY REQUIRE ANY COLLATERAL IT DEEMS FIT. SUBMITTING BILLS OR ANY OTHER INSTRUMENT THAT CREATES AN OBLIGATION TO PAY DOES NOT CONSTITUTE A PAYMENT. IN CASE OF SEIZURE BY THIRD PARTIES OF PRODUCTS DELIVERED BUT NOT PAID FOR BY THE CUSTOMER, THE LATTER SHALL BE OBLIGATED TO INFORM THE COMPANY IMMEDIATELY.
9/ Termination clause: In case of breach by any party of the obligations provided under articles 1 to 8 and 10 to 11 of these general terms and conditions, and after 7 (seven) calendar days after the sending by the defaulting party of a letter sent by recorded delivery giving formal notice to fulfill said obligation and having no effect, the other Party may terminate the Contract ipso jure, without prejudice to the right of the other party to claim compensation for any damages resulting from such breach. Article 1226 of the French Civil code will not apply to the Contract.
10/ Intellectual Property: 10.1 The Customer undertakes, both during the term of this Contract and after its termination for any reason whatsoever, not to infringe directly or indirectly the industrial and intellectual property rights of the Company, including the technology and know-how relating to the products. 10.2 The Customer undertakes not to prejudice the reputation of the Company, and only use the trademarks and/or any other distinctive sign of the Company within the strict context of marketing the products and without creating the appearance of any belonging to the Company. 10.3 If the Customer is sued for infringement due to the use of the trademark "ONDULINE" or any other intellectual property right, it shall promptly notify the Company. All costs incurred for its defense and any eventual sentence shall be the sole responsibility of the Customer, unless otherwise agreed by the parties on a case-by-case basis. 10.4 The Customer undertakes to immediately notify the Company in the event that it should become aware of any actual or alleged violation of the Company's intellectual and industrial property rights, and shall provide any and all necessary support to the Company. The Company alone shall have control of the final decision regarding the action to be taken in response to alleged acts of infringement, unfair competition, parasitism or parallel import and no legal action may ever be filed by the Customer for these purposes.
11/ APPLICABLE LAW - JURISDICTION: FRENCH LAW IS THE ONLY LAW APPLICABLE TO THE RELATIONSHIP BETWEEN THE COMPANY AND THE CUSTOMER. IT IS EXPRESSLY AGREED THAT ANY TYPE OF DISPUTE WHATSOEVER SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE COMMERCIAL COURT OF PARIS, EVEN IN CASES OF INTRODUCTION OF THIRD PARTIES OR MULTIPLE DEFENDANTS, NOTWITHSTANDING ANY CONFLICTING CLAUSE.