General Terms and Conditions of Purchase

Article 1 – General

The present General Terms and Conditions of Purchase (hereinafter the « GTC ») shall apply to the purchase of all materials, objects, components, and provisions of services of any nature (hereinafter the “Products”) which are offered or supplied by all sellers (hereinafter the “Supplier”) to thyssenkrupp Materials France SAS (hereinafter the “Purchaser”). The GTC are an integral part of any order placed by the Purchaser to the Supplier. Order (hereinafter the “Order”) means the GTC, the purchase order as well as all documents such as technical, commercial and administrative specifications required by the Supplier. These documents constitute the entire agreement to the exclusion of any other conditions which they have been explicitly accepted by the Purchaser in writing. Unless otherwise agreed, by explicit and written provision resulting from the negotiation between the Purchaser and the Supplier (hereinafter the “Parties”), the GTC shall take precedence over any Supplier general conditions even if these latter would be mentioned in Supplier’s documents. Unless Supplier’s general conditions expressly accepted in the Order, their application is excluded.

In the absence of any contrary contractual provisions, accepting the Order implies that the Supplier has read and fully accepted the GTC.

These GTC are available on the www.thyssenkrupp-materials.fr website, which may be modified at any time without notice. These amendments are binding on the Supplier who must thus refer regularly to this website in order to verify the GTC in force.

Article 2 – Order

Any Product purchased must always be the subject of a purchase order. The following references shall be set out in all Supplier’s documents related to the Order:

• Supplier code;
• Order number;
• Purchaser’s reference;
• Place of delivery; and,
• Invoicing address.

The Purchaser’s Order shall be deemed to be finally accepted when the Supplier confirms the Order within five (5) days from the date of Order’s issuance, by a dated and signed acknowledgement of receipt.

Any Order without acknowledgment of receipt within the aforementioned deadline shall be deemed to be accepted by the Supplier. Silence or failure to act on the part of the Purchaser with regard to the different Supplier’s conditions or terms shall not have any legal effect and shall not constitute any acceptance of the Order.

Article 3 – Delivery

Unless otherwise specified, any delivery of Product shall be accompanied by:

• Four (4) copies of delivery note showing in addition to the references mentioned in Article 2, the description of the Product and the delivered quantity;
• The Product’s certificate of conformity, which one shall be issued before delivery, if requested by the Purchaser;
• Any document required for the Order.

Packaging and identification shall be performed in accordance with the Order, regulations and standards in force.

Insofar as not otherwise agreed upon in the Order, the delivery terms of the Product are deemed to be « Delivered At Place » or DAP (Incoterms 2010) to the agreed place of delivery mentioned in the Order. The Purchaser shall be entitled to reject all or part of the delivery of the Product and remove or hold any Product, at the Supplier’s expense and risk:

• Which was not ordered or modified and approved by the Purchase ;
• Which was delivered after the deadline had expired;
• For which the delivery may be under or over.

The absence of reserves or complaints about the acceptance of the delivery shall not constitute a final acceptance of the Product delivered nor a waiver by the Purchaser of any and all claims related to non-conformity with the Order or visible defects of the Product. This approval will be effective only after controlling the Product within a maximum of fifteen (15) working days.

The Product must comply with the requirements set out in the Order and regulations and standards in force.

In case of non-compliant Product, the Purchaser shall inform the Supplier and reserves the right, in its option to:

• Reject the Product by making this available to the Supplier for removal at its own expense and risk within fifteen (15) days after the date of the Purchaser’s notification of non-conformity; In the event the Supplier didn’t make the removal of this Product in this deadline, the Purchaser shall be entitled to dispose of this Product notably by scrapping it at the Supplier’s expense.
• Reject the Product and return it to the Supplier at its own expense and risk within five (5) days after the date of the Purchaser’s notification of non-conformity.

For all non-conforming delivery, the Purchaser shall provide a statement of claim with covering debit note.

The binding deadlines shall be agreed between the Parties and respect is an essential condition without which the Purchaser would not have contracted.

In the event of any delays in delivery, the Supplier shall immediately notify it the Purchaser, in writing, indicating:

• The reason and/or the duration of the delay;
• Any information related to the measures implemented to rectify the situation.

If the agreed contractual delivery periods are non-respected, the Purchaser reserves the right and without prior formal notice to:

• Maintain the Order. The Supplier shall pay for each completed day of the delay and that exceeds two (2) days, a late delivery penalty equivalent to 1% per day of delay but not exceeding fifteen (15) % total Order value, and without prejudice to damages which the injured party may reclaim;
• Cancel the Order in cases where delivery is more than two (2) weeks late, even if partial deliveries have already been made;
• Remedy the default of delivery itself buying from another supplier at the expense and risk of the defaulting Supplier. In this case, the Purchaser shall notify it to the defaulting Supplier, the latter shall offer to the Purchaser within two (2) weeks, an alternative.

Theses penalties shall not constitute a valid discharge and may not be regarded as fix and final remedy for the loss suffered by the Purchaser. Given the penalties which must be paid by the Purchaser to his customers because of this late, the Purchaser shall be entitled to pass them on the Supplier.

Any retention of title clause delaying transfers of property terms provided by ordinary law shall be excluded.

Article 4 – Price – Invoicing – Payment

4.1 – Price

The applicable prices are those mentioned in the Order. They shall be firm and not be revised. They shall be understood, insofar as not otherwise agreed upon, « Delivered At Place » or DAP (Incoterms 2010) to the agreed place of delivery mentioned in the Order. These prices include Product’s packaging and wrapping appropriate for the transport and handling. They may be changed only by an amendment to the Order.

4.2 – Invoicing

After each delivery of Product in performance of an Order, the Supplier shall be sent the original invoices which shall be compliant with the legal requirements and the Purchaser’s particular specifications. They shall be submitted to tkMF, Service Comptabilité Fournisseurs (6, Avenue Gutenberg, 78310 Maurepas).

The Purchaser reserves the right, notably, to reject any invoice:

• Which was not properly ordered and approved by the Purchaser’s services;
  
• Which shall not include references required in the Order.

4.3 – Payment

Subject to the Product’s compliance and unless other stipulated on the Order, payment shall be made by bank transfer within forty-five (45) days end of the month from the invoice date.

In the event of any delay in payment, the rate of interest applicable to such penalties shall be restricted to three times the French legal rate of interest.

Any delay in payment shall result a flat-rate compensation for recovery costs in the amount of 40 euros.

Article 5 – Warranty – Liability

5.1 – Warranty

The Supplier warrants from the date of delivery, that the Product:

• is of good quality in compliance with industry standard and free from material and legal defects;
• is compliant with all specifications and descriptions provided or approved by the Purchaser and made known to the Supplier;
• is a quality which is expected of all diligent and qualified professional, suitable for the use they are expected, that is to say the use whom the Supplier declares to have knowledge at the time of the acceptance Order.

The Supplier shall be liable for defects or hidden defects which can affect the Product in accordance with the ordinary law in force and the Supplier’s contractual obligations. The Supplier shall indemnify the Purchaser against all claims of any nature whatsoever which might be submitted and agrees to pay all harmful consequences that may occur by the Purchaser and/or third parties and undertakes to participate actively and financially to any potential recall campaign.

Insofar as not otherwise stated in the Order, the Supplier undertakes to warrant the Product whatever the reason of the non-conformity for a minimum period of at least two (2) years from the date of delivery. The Supplier therefore undertakes to provide throughout this period at its own expense the repair or replacement of the defective Product (at Purchaser’s option), it being specified the Supplier shall bear all costs involved in repairing or replacing the Product (such as labour, travel costs…) without prejudice to the application of the provisions of article 5.2. Any repaired or replaced defective Product shall be carried warranty on the same terms as set forth above.

The Supplier shall remain responsible according the ordinary law, including beyond the contracted warranty period, for all defects that the Product could be affected.

5.2 – Liability

The Supplier shall bear all direct, indirect, special, incidental, material or intangible damages including losses incurred by the Purchaser, his staff and/or any third party as a result of delay in delivery, defective Product or any other Supplier’s breach because of non-execution or defective execution of the Order.

These damages shall be indemnified in their entirety without any limitation concerning their nature and amount.

Article 6 – Insurance

The Supplier represents and warrants to have subscribed an insurance policy with a reputably solvent insurance company covering his professional liability especially towards the Purchaser, his staff and/or any third party, appropriate to the nature and extent of contractual relation. The Supplier undertakes to provide at any time, at the request of the Purchaser, the subscription of an effective insurance and the payment of related premiums.

In the case of insufficient coverage notably without being insured against any damage to Product, the Supplier, as an intermediary between the producer and the Purchaser, warrants the Purchaser may be compensated by the producer under the contractual guarantee.

The Purchaser may at any time require the supply of this warranty in order to ensure its existence on the one hand, and to understand the scope on the other hand, prior to order confirmation. It belongs to the Supplier to inform the Purchaser of any change, suspension or termination of the insurance.

Under any circumstances, the Supplier’s insurance policy may not be considered as limiting his obligations and liabilities pursuant to the Order.

Article 7 – Assignment – Subcontracting

Without the prior written consent of the Purchaser, the Supplier shall not assign all or any part of the Order to any third party. In the event of a change in direct or indirect control of the Supplier or the sale by the Supplier of a material part, the Purchaser shall have the right to terminate the Order in accordance with Article 9.

The Order may not be subcontracted by the Supplier, whether in full or in part, directly or indirectly, without the Purchaser's prior, express authorization.

In the event the Supplier is entitled to sub-contract all or any part of the Order to any third party, these operations shall be borne by the Supplier. He shall be held fully liable towards the Purchaser for the performance of the Order and for the compliance with the GTC. The Supplier shall notify all sub-contractors the GTC as well as the Order, and shall provide them any information regarding the Purchaser’s requirements, the latter reserving the right to refuse any sub-contractor which would not comply with these measures.

In case of assignment or sub-contracting by the Supplier, without the prior written consent of the Purchaser, the Purchaser shall terminate the Order without accepting any claim for compensation which may be made by the Supplier.

Article 8 – Force majeure

A force majeure event means any unforeseen and uncontrollable event beyond the control of the Parties as defined by the provisions of the French Civil Code. The Party prevented from carrying out its obligations under the Order due to force majeure event, such as fires, floods, natural disasters, war, riot, strike, sabotage, shall take all appropriate steps to resume normal performance as quickly as possible to meet those of its obligations under the Order affected by the said force majeure.

If, as a consequence of force majeure, the Party is unable to perform its obligations within a reasonable time-limits compared to those provided for in the Order, the Parties shall meet in order to define the conditions for the continuation of the Order. The Purchaser reserves the right to cancel the Order without accepting any claim for compensation which may be made by the Supplier.

In case of force majeure event affecting the Supplier and if force majeure event exceeds sixty (60) days, the Purchaser may terminate the Order in accordance with Article 9.

Article 9 – Termination

The Purchaser shall terminate the Order by registered letter with acknowledgement of receipt without prejudice to damages, as follows:

• In case of force majeure as defined in Article 8;
• In case of the Supplier’s non-compliance with any obligation and/or warranty specified in the Order and/or any breach of this GTC, and does not discontinue such breach within fifteen (15) days from the receipt of a written notice from the Purchaser;
• The Supplier becomes insolvent or an insolvency, receivership or insolvency proceeding is commenced by the Supplier or a third party related to the assets of the Supplier.

Article 10 – Compliance with Labour legislation – Fraud and Corruption – Confidentiality

10.1 Compliance with Labour Legislation

The Supplier undertakes to comply with all provisions of the French Labour Code, in particular concerning child labor and undeclared work. The Supplier also undertakes to comply with the social and labour legislation of the country where the Order is performed and as long as the Parties’ commercial relation lasts.

10.2 Fraud and Corruption

The Supplier shall take any necessary measures to prevent any fraudulent activities involving his agents regard to the payment made by the Purchaser. The Supplier agrees and warrants that he has not given and will not give or agree to give to any Purchaser’s employee, agent or representative, any gift, commission in connection with the Order.

In the event the Supplier’s failure to comply with these provisions, the Purchaser shall terminate the current Order without prejudice to any other remedies of the Purchaser against the Supplier.

The Supplier undertakes to ensure that its employees and sub-contractors comply with the obligations set forth in this Article.

In addition to these provisions, the Supplier shall comply with the “Supplier’s Code of conduct” of the Customer, which is available on the www.thyssenkrupp-materials.fr website.

10.3 Confidentiality

The Supplier undertakes to treat as confidential all information and technical and commercial documents as well as all objects entrusted to him by the Purchaser and he is prohibited from disclosing and/or transmitting in any form to third parties, except prior written consent of the Purchaser.

The Supplier isn’t allowed to comment on business dealings with the Purchaser except prior written consent of the Purchaser.

Article 11 – Export control

The Supplier agrees and warrants to comply with all applicable national and international export control laws and regulations.

The Supplier undertakes to obtain all international and national licenses or comparable permits required under all respectively applicable export control laws and regulations.

The Supplier undertakes to indemnify and hold harmless the Purchaser against any claims, liabilities and expenditures (including attorneys’ fees) that the Purchaser incurs due to the Supplier’s non-compliance with any such applicable export control laws and regulations.

Article 12 – Product compliance with the regulations and standards

During the performance of the Order, the Supplier warrants that the Product conforms with all laws and public authority regulations and standards regarding health, safety, traceability and environment. The Supplier shall be obligated to provide the Purchaser at the time of delivery or upon first request from the Purchaser, all certificates required by the regulation and related to the Product.

It also includes the enforcement of all regulations of the European Regulation (EC) No. 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH Regulation) and the European Regulation (EC) No. 1272/2008 of the European Parliament and of the Council of 16 December 2008 concerning the Classification, Labelling and Packaging of Substances and Mixtures (CLP Regulation).

In addition, the Supplier undertakes to:

• Implement in determining its supply chain, any appropriate measures to ensure the following metals : tantalum, tin, tungsten and gold, do not come from a conflict area and high-risk country; and ;
• Provide upon request, data relating to the supply chain.

Article 13 – Language of the contract – Applicable law – Dispute settlement

In the event that any translation is made of the present GTC, the Parties shall be bound solely by the French version.

Article 14 - Quality requirements for external suppliers and subcontractors.

In the event that delivery affects the products or the final delivery of the Purchaser to its customers (including deadlines terms), the Supplier shall comply with the document EQ-TH-005 “Quality Requirements for External Suppliers and Subcontractors” established by the Purchaser by clicking on the link above.

Article 14 – Exigences Qualité Achats fournisseurs et sous-traitants

Dans le cas où la prestation a une incidence sur les produits ou sur la prestation finale de l’Acheteur à ses clients (y compris en terme de délais), le Fournisseur doit se conformer au document EQ-TH-005 « Exigences Qualité Achats fournisseurs et sous-traitants» établi par l’Acheteur

Les présentes CGA et toutes les relations contractuelles entre les Parties sont régies par le droit du pays dans lequel l’Acheteur ayant passé la Commande a son siège social, à savoir le droit français.  Les Parties excluent expressément l’application de la Convention des Nations Unies sur les Contrats de Vente Internationale de Marchandises (CVIM) ainsi que des règles du droit international privé.

Tout différend survenant dans le cadre de ces CGA et relations contractuelles entre l’Acheteur et le Fournisseur devra être résolu par les tribunaux compétents du lieu du siège social de l’Acheteur. Toutefois, l’Acheteur se réserve le droit exclusif de porter tout différend impliquant le Fournisseur devant les Tribunaux du ressort du lieu du siège social du Fournisseur ou devant les Tribunaux du ressort du lieu de livraison des Produits.

The GTC and all contractual relationships between the Parties shall be governed by the law of the country in which the Purchaser which has placed the Order has its registered office, that is to say, the French law.  The UN Convention on Contracts for the International Sale of Goods (CISG) as well as the regulations of private international law are expressly not applicable. 

Exclusive jurisdiction for all legal disputes arising from and in connection with these GTC and all contractual relationships between the Supplier and the Purchaser shall be with the competent courts located at the registered seat of the Purchaser. However, the Purchaser reserves the exclusive right to submit any dispute involving the Supplier before the courts of the Supplier’s registered office or before the courts for the place of delivery.