General Terms and Conditions for the Sale of Goods.
Article 1 – General
These General Sales Terms and Conditions (hereinafter the « T&C ») shall apply to the sale and supply of all materials, objects, components, services (hereinafter the « Product ») by thyssenkrupp Materials France SAS, his agents or representatives (hereinafter the « Supplier ») to all customer (hereinafter the « Customer »).
Any order placed with the Supplier implies that the Customer has read and fully accepted the T&C. The implementation of the Customer’s Terms and Conditions of Purchase shall be excluded even if the Customer refers to in its purchase order unless specific prior agreement on ordering agreed in writing among the Supplier and the Customer (hereinafter the “Parties”).
The full and entire acceptation of these T&C by the Customer and the Supplier’s specific provisions contained in his offer, acknowledgement of receipt of order accompanied where appropriate, document expressly referred to the acknowledgment of receipt of order, constitute the entire agreement between the Parties (hereinafter the « Contract »), to the exclusion of any other document.
These T&C are available on the www.thyssenkrupp-materials.fr website, which may be modified at any time without notice. These amendments are binding on the Customer who must thus refer regularly to this website in order to verify the T&C in force.
Article 2 – Commercial offer and Order
2.1 – Commercial offer
The Supplier’s commercial offer is valid for a time period of two (2) weeks from their issue unless stated otherwise in the commercial offer. It would be advisable the Customer provides the Supplier a detailed specifications regarding its needs so as to enable the Supplier to make commercial offer as precise as possible.
2.2 – Order
Order shall only be final when it has been confirmed in writing by the Supplier in the form of an order acknowledgement on the one hand, and the credit risk coverage by the Supplier’s credit-insurer or any other way ensuring risk (bank guarantee, advance…) on the other hand. An order thus accepted shall not be cancelled, amended in full or in part in progress by the Customer without the Supplier prior written consent.
Any information and/or specification, any price and/or rate listed in Supplier’s catalogues and/or documentations are only for general information and shall bind the Supplier only after its written confirmation through the acknowledgement of receipt of the order.
Article 3 – Price and Payment Terms
3.1 – Price
Price of the Product shall be as stated in the Supplier’s order acknowledgement subject where appropriate to variations due to alloys in cases where it is specified in contractual documents. Unless the acknowledgment of receipt of the order from stipulates another special condition expressly agreed by the Supplier, all prices shall be in euros.
Unless otherwise stipulated in the acknowledgement of receipt of the order, our offer shall be deemed to be made Ex-Works (Incoterm 2010). All taxes, custom duties or other duties or fees in connection with the execution of the Agreement shall be borne solely by the Customer and are not included in the price.
3.2 – Payment Terms
Unless the acknowledgment of receipt of the order form stipulates another special condition expressly agreed by the Supplier, payment shall be made by the Customer by bank transfer or truncated bills of exchange in the currency stipulated, at the end of the month forty five (45) days from the invoice date.
The payment represents the net price without deduction, withholding or other charge.
Unless otherwise provided, the default payment of whole or part of the price at the due date shall lead and without prior formal notice, the following results, in accordance with Article L. 441-6, I of the French Commercial Code:
- Interests for late payment shall be applicable to the Customer on the amount owing at a rate equal to the rate of funding applied by the European Central Bank, to which it will add a rate of 10% points; any interest shall accrue from the date on which the contested amount becomes due without the necessity of a reminder;
- The Supplier shall be entitled to demand the payment of a fixed indemnity in the amount of EUR 40.00 as recovery costs;
- The Customer shall be bound to reimburse to the Supplier any expenses resulting from the unpaid balance, such as bank charges, protest charges and stamp duties.
By way of liquidated damages in accordance with the provisions of the French Civil Code, and without prejudice to any other damages, the Customer shall pay to the Supplier a sum equal to 20% of the unpaid amounts and shall reimburse to the Supplier all expenses incurred in order to collect the unpaid amounts, without any prior notice being necessary.
The Supplier uses a credit-insurer and thus reserves the right to receive a cash payment and/or require the establishment of a guarantee and/or require shorter payment terms than standard, in the event the credit granted to the Customer by the credit-insurer should not be enough to cover the entire risk.
In the case of overdue payment by the Customer, the Supplier shall be entitled to suspend the execution of pending contractual obligations or cancel pending Contract with immediate effect. The Supplier shall notify its decision to the Customer by any means.
Article 4 – Delivery and Delivery Periods
Unless the acknowledgement of receipt of the order form stipulates another particular condition expressly agreed by the Supplier, all Product is delivered Ex Works, facility designed by the Supplier (Incoterms 2010) before loading the Product. The risk of the Product passes to the Supplier in accordance with the applicable Incoterm.
Delivery dates indicated by the Supplier are given as a general guide only and are not binding. The overrunning of the delivery dates shall neither give grounds for cancellation of the order or termination of the Contract, nor give rise to a right to compensation. It shall be the duty of the Supplier to notify the Customer of this delay as soon as possible.
If the Customer does not accept the Product after being informed that it is ready for dispatch, an amount equal to 1% on the value of Product per month by way of storage costs will be due by the Customer to the Supplier.
Any liquidated damages for late delivery not expressly agreed in contractual documents listed in Article 1 shall be excluded.
In the case where liquidated damages for late delivery have been agreed, these shall be deemed to constitute a lump-sum and full discharge of any other compensation.
Without any delivery note signed by both Parties, in order to be valid, claims with regard to visible defects, composition and quantity of the Product delivered, or any non-conformity with delivery form shall be made within eight (8) days of delivery, without taking into account formalities against the forwarder, otherwise they will not be eligible. Claims must be issued before any processing.
Issuing a claim shall not suspend the invoice payment by the Customer in respect of the Product in dispute.
No Product shall be returned to the Supplier without its prior agreement. In this case, returns should be made DAP to the address indicated by the Supplier. The Supplier shall not be liable for any loss or damage of a package in return. In the latter case, defect will not be proved.
Unless otherwise provided, the Supplier reserves the right to make partial deliveries and invoice them separately.
Article 5 – Scope of delivery and Customer obligations
In accordance with the current regulations, any Product sale is subject to legal guarantee.
The Supplier’s liability is strictly limited to the provision of Product in accordance with contractual specifications.
Under no circumstances shall Supplier be liable for the conformity of the Product with its intended use.
Only its compliance with contract specifications shall be guaranteed. Any technical advice by the Supplier orally, in writing or by tests, before and/or during use of the Product shall not be taken in any way as an obligation of the Supplier to provide advice to the Customer.
The Customer undertakes to communicate and facilitate access of any necessary information (in electronic format if possible) and document to the Supplier in order to fulfill its obligations within the best conditions and within the time limits foreseen. He undertakes also to define clearly his requirements and provide quality documented and comprehensive data within the required deadlines as well as cooperate actively and continuously with the Supplier.
Article 6 – Warranty
The Supplier warrants that the Product complies with contractual specifications. Deviations in quantity and quality shall be permissible in accordance with the standard applicable or common practice. Products shall be considered as delivered notwithstanding any reasonable difference in weight coming from usual tolerances resulting from manufacturers’ production tools capabilities of the delivered products.
The Product sold is guaranteed to be free of any operating default due to defective material, manufacturing or design for a period of twelve (12) months from the date of availability for shipment ex-works. Beyond this period, no contractual guarantee call shall be admissible.
It shall be incumbent on the Customer to prove that the Product supplied under the Contract does not conform to the foregoing warranty, the Customer shall notify to the Supplier in writing within five (5) working days, after the discovery of the non-conformity, or the defect.
Then the Supplier, if the reclamation is deemed founded, at its option, can replace the non-conforming Product at its sole expense or reimburse the Customer in the form of a credit note to the invoice price value, to the exclusion of all other remedies.
The following defects are excluded from the present warranty:
- Defect resulting from abnormal use and/or due to a negligence in the handling, storage or installation of the Product without compliance with the specifications and instructions of the Supplier and/or normal usage;
- Defect due to the repair or modification of the Product by the Customer himself or by any third party without the Supplier prior written agreement;
- Defect not existing at the time the Product was sent by the Supplier
Article 7 – Liability and Insurance
In case the Supplier is held liable, notably with respect to the supply of Products or their use in the framework of the contractual warranty, due to the performance of the Contract, due to the Supplier’s negligence or due to any other reason, this liability shall be limited to compensation up to an amount equal to the value of the Product subject to improper performance or non-performance. The Supplier shall be liable only for tangible and direct damages and solely in case of fault of Supplier proven by the Customer. In no event, shall Supplier be liable for the damage caused by the fault and/or negligence of the Customer and/or third party.
Any liability of the Supplier for any indirect and/or intangible and/or financial damage and/or prejudice suffered by the Customer or third party is expressly excluded; such as, but without being limited to, any action brought against the Customer by a third party, any loss of profit, any operating loss, any loss of production, any loss of turnover, any data loss, any loss of rights, interruption of a service provided by a person or a good, damage to brand reputation, any loss of an opportunity. Any action by the Customer related to a Product shall be time-barred at the end of the warranty period of this Product.
Article 8 – Force majeure
Any circumstances beyond the Parties’ control preventing the normal performance of the Contract shall be considered as grounds for exoneration from the Parties’ obligations. The Party affected by such circumstances shall notify the other Party promptly.
In case of force majeure event which forces the Customer to suspend performance of his obligations and which exceeds sixty (60) days, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer by registered letter, with no compensation being payable by or to either Party.
Article 9 – Retention of Title
In accordance with Articles 2367 and following of the French Civil Code, the Product being sold will remain in the ownership of the Supplier until full payment of all amounts due to the Supplier.
Under the terms of this clause, the submission of a document creating an obligation to pay (whether a draft or other payment titles) is not to be considered as a payment.
From the date of provision of the Product delivered Ex-Works, the Customer assumes the liability for damage that this Product may suffer or cause for any reason whatsoever. Until full payment, the Customer shall ensure that the Product is stored in good conditions of conservation and such a way as to be readily identifiable as the property of the Supplier.
If any payment is overdue the Supplier without prejudice to any other right, shall be entitled to repossess the Product. The Customer shall therefore return the Product at its own cost and risk on the Supplier’s request. He may be compelled to do so by a simply summary order.
Nevertheless, the Customer shall be entitled to resell and process the Product under the following conditions:
- The Customer may resell the supplied Product within the scope of usual business practice but he may not pledge it or transfer the ownership as a guarantee. It is non-sizable;
- The Customer may also process the supplied Product within the scope of usual business practice. In case of processing, he undertakes to assign to the Supplier the title on the Products resulting from processing for the purpose of ensuring the Supplier’s rights. In the event of seizure or other intervention by third party, the Customer shall notify the Supplier immediately;
- The resale and processing authorization is automatically and immediately withdrawn in case of the Customer's insolvency or default of payment.
In case of sale and/or delivery of the Product, either without or following processing or combination, the Customer shall be required to inform the purchaser of the Product whose title is retained by the Supplier, of the existing retention of title clause and provide the Supplier any details and documents necessary for the assigned debts to be collected.
Article 10 – Assignment and Sub-contracting
The Supplier shall be entitled to assign the whole or any part of its rights and obligations, arising out of this Contract with the Customer to a third party of its choice.
The Customer shall not, under any circumstances, assign its rights and obligations under this Contract without the Supplier’s prior express consent.
The Supplier reserves the right to employ the services of subcontractors without the prior written consent of the Customer, what the Customer acknowledges and accepts. The latter shall not sub-contract all or part of its rights and obligations under this Contract to any third party, without the Supplier’s prior written consent.
Article 11 – Termination
In case of material breach by the Customer of its contractual obligations, the Supplier may send a formal notice to perform by registered letter with acknowledgment of receipt and, after fifteen (15) days or any other period indicated in the acknowledgement of receipt of the order form, if the prior formal notice to perform remains unanswered, to notify by a second registered letter with acknowledgment of receipt the termination of the Contract and/or the cancellation of the current order immediately and by right.
Beyond the foregoing, the Supplier reserves the right to cancel the Contract prematurely without the Customer having the right to claim compensation, in the following cases:
- In case of force majeure as defined in Article 8 ;
- In the event of any change in the legal situation of the Customer such as liquidation, death, insolvency;
- In case of payment default as defined in Article 3.
In case of termination agreed by the Supplier of all or a part of the Contract, for the reason mentioned in this Clause or in agreement with the Supplier, the Product already made or being made and expenses already incurred for the Contract, shall be payable by the Customer.
Article 12 – Confidentiality
The Customer undertakes to treat as confidential all information and technical and commercial documents as well as all objects entrusted to him by the Supplier and he is prohibited from disclosing and/or transmitting in any form to third parties, except prior written consent of the Supplier.
The Customer isn’t allowed to comment on business dealings with the Supplier except prior written consent of the Supplier.
Article 13 – Language of the Contract - Applicable Law - Dispute Settlement
In case of contradiction between the French and the English version of the T&C, the French version shall prevail.
Any dispute relating to the interpretation and performance of these T&C shall be governed by French law. The application of the Vienna Convention on International Sale of Goods and conflict of law rules are explicitly excluded.
The Commercial Court of the Supplier’s Head Office is the only court having jurisdiction, even in case of introduction of third parties or plurality of defendants. However, the Supplier reserves the right to submit any dispute before the Commercial Court of the location of its facilities concerned.
Article 14 – Miscellaneous
The Customer warrants that he complies and will comply with anti-corruption laws.
The Customer undertakes to comply with ethical rules and acknowledges that the Product may be subject to applicable EU and US export control laws and regulations. The Customer shall indemnify, defend and hold the Supplier harmless from any liability arising from re-exporting the Product directly or indirectly to any destination in violation of applicable laws or regulations.
The Customer shall be responsible for compliance with the laws and regulations applicable for the import and use of the Product in its destination country.
If one or more of the provisions of these T&C are found to be null with regard to a rule of law, those provisions shall be deemed unwritten, but will not involve the nullity of these T&C. It shall automatically be replaced by a rule legally permissible that most closely approaches the original intentions of the Parties.