General Terms and Conditions of Sale

1. FORMATION OF THE CONTRACT
1-1 Conflict between the general terms and conditions of sale and the general terms and conditions of purchase
These general terms and conditions of sale define the manner in which and conditions under which sales are conducted between any entity (hereinafter referred to as the Seller) that is part of the Palettes Gestion Services (PGS) Group and its customers (hereafter referred to as the Purchaser). By mutual agreement between the parties, sales are always conducted under the terms and conditions described below. The provisions contained herein shall not be modified by contrary provisions, and in particular those found in the Purchaser’s general terms and conditions or any other document, without the Seller’s express written consent. Accordingly, the Seller’s confirmation of the order placed by a Purchaser shall indicate unconditional acceptance of that order under these general terms and conditions of sale, unless the Seller has granted special terms and conditions to the Purchaser.
1-2 Consent
1-2.1 Proposals
Sales proposals are made exclusively on the basis of quotes prepared by the Seller. They are valid only when accepted, in the form of an order, within a period of one month from their issue date.
1-2.2 Acceptance
1-2.2.1 Form
Acceptance may be made in accordance with current sales practices, but an order must always be confirmed by fax, post, email or other written medium. The lack of any written response within 48 hours of the confirmation of the proposal shall indicate confirmation of acceptance.
1-2.2.2 Modification
Since the contract is formed by the order given to the Seller in accordance with the provisions of Article 1-2.1, any request to amend the components or technical characteristics of an order placed by a Purchaser shall be taken into consideration by the Seller only under the following conditions:
- it must be made in writing, and specifically by fax;
- it must be received by the Seller before the order has been prepared.
Even in the event of compliance with the aforementioned procedure, the Seller reserves the right to reject any modification to the order.
2. COMPETENT JURISDICTION AND APPLICABLE LAW
2-1 Competent jurisdiction
In the event of a dispute, the parties shall attempt to arrive at a prior agreement within eight days following the date on which said dispute arose. Disputes for which no amicable agreement can be reached shall be brought before the courts. The parties expressly agree that the competent court shall be the Commercial Court for the jurisdiction in which the Seller’s corporate headquarters is located, even in the case of a third-party complaint or multiple defendants.
2-2 Applicable law
By mutual agreement between the parties, the applicable law governing the contractual relationship between the Seller and its Purchasers is French law.
3 - GOODS SOLD
The materials used in the design of the goods and described in the quote shall be selected on the basis of the intended purpose of the goods, as indicated by the Purchaser. The goods are sold as is, without any additional service, unless the Purchaser makes an express request to the contrary. The Purchaser’s acceptance of the quotes prepared by the Seller shall indicate the Purchaser’s confirmation that the materials used are compatible with their intended use.
4. DELIVERY
4-1 Procedures
The delivery method and the respective obligations of the Parties must be indicated on the order, subject to the Incoterms®2010 terms. Unless otherwise indicated, the products shall be transported at the Purchaser’s risk and expense.
4-2 Timeframes
Delivery times are given for reference purposes only, and will depend in particular on carrier availability and the options for providing the supplies. Carriers will, however, make every effort to comply with the timeframes indicated on the order. Failure to comply with delivery times shall not give rise to the payment of penalties and/or damages. Any delivery past the delivery time initially envisioned shall not justify termination of the order. If, however, the Seller has pledged strict compliance with the delivery time and the goods have not been delivered on the agreed date for reasons other than force majeure, the sale may then be terminated to the exclusion of any compensation or damages borne by the Seller. The following shall be considered cases of force majeure releasing the Seller from its delivery obligation: inclement weather, fire, accidents, strikes, acts of war.
4-3 Acceptance
In the event of damage to the goods that are delivered or missing items, it will be the Purchaser’s responsibility to raise all the necessary reservations with the carrier on the cargo receipt upon receiving the goods. Those reservations must be confirmed by extrajudicial document or registered letter with return receipt sent to the carrier within three days of the date on which the goods were received. Notwithstanding any provisions to be taken by the Purchaser with regard to the carrier as described above, in the event of visible defects or missing items, any claim of any kind regarding the delivered goods shall be accepted only if it is made in writing via registered letter with return receipt sent to the Seller. Said claim must be made within three days following the Purchaser’s receipt of the goods. It shall be the Purchaser’s responsibility to provide all supporting documentation giving proof of the reported defects or missing items. The Purchaser must give the Seller or its representative, or any person authorised by the Seller, every opportunity to make or arrange for any investigations it deems necessary. Only the Seller or any person duly authorised by the Seller may conduct those inspections and verifications.
4-4 Returns
The Purchaser may not return any goods without the Seller’s prior express written consent. Return shipping costs shall be borne by the Seller only if a visible defect is readily apparent to the latter. Only the carrier chosen by the Seller is authorised to return the goods in question.
4-5 Replacement
In the event that visible defects or missing items are actually observed by the Seller following an inspection as described in Article 4-4, the Purchaser may request only that the non-conforming products be replaced and/or the missing items be supplied at the Seller’s expense, and the Purchaser may not claim any compensation or termination of the order. Payment for the goods in question shall remain due notwithstanding any claim made by the Purchaser under the conditions and in the manner described below.
5 - WARRANTY
5-1 Legal guarantee
The Purchaser is covered by the guarantee provided by law (Article 1641 of the French Civil Code) in the event of a hidden defect in the goods sold.
5-2 Seller warranty:
5-2.1 In addition, the Purchaser receives a one (1)-year warranty from the Seller, effective as from the delivery date.
5-2.2 The Seller warranty applies to any duly established defect of construction or material. It provides solely for the replacement of the defective goods or reimbursement for the price of those goods, and excludes compensation for any other claim for any reason.
5-2.3 To qualify for the warranty, the Purchaser must notify the Seller of the observed defect via registered letter with return receipt within 48 hours of its discovery.
5-2.4 Any costs for downtime shall remain the Purchaser’s responsibility in every case; transport costs shall be borne by the Seller.
5-2.5 Replacement of or reimbursement for the defective goods under the Seller warranty shall not have the effect of extending the warranty period for said warranty.
5-3 Exclusions
The Seller warranty shall not be applicable in the following circumstances:
5-3.1 When the damage or defects are due to lack of maintenance, negligence or inexperience; the use of the goods under abnormal conditions; disuse for an extended period; overloading, including by passengers; deterioration caused by the user; or repairs made by a third party other than the Seller or its representative.
5-3.2 When the goods supplied by the Seller were manufactured by a third party.
6. TRANSFER OF RISK
The transfer of risk on the goods will occur when the goods are delivered to the carrier.
7. PRICING AND PAYMENT
7-1 Pricing
The prices for the goods will be those appearing in the quotes prepared by the Seller and accepted by the Purchaser upon placing the order. Unless expressly agreed otherwise with the Purchaser, those prices shall be carriage paid for transactions in mainland France, or under the conditions set forth between the parties and described in Article 4-1.
7-2 Payment
7-2.1 Procedures
Invoices are payable to the Seller’s premises via cheque, draft or promissory note, bank transfer, letter of credit or any other means of payment currently used in commercial matters.
7-2.2 Payment periods
Payment for goods ordered shall be made no later than sixty (60) days from the invoice date or forty-five (45) days end of month, unless specific terms are agreed between the parties. Only the actual cashing of cheques and/or drafts shall constitute full payment pursuant to these general terms and conditions of sale. Unless otherwise agreed between the parties, no discount shall be applied for early payment.
7-2.3 Default interest
Any sum that remains unpaid at the due date indicated on the invoice shall automatically entail payment by the Purchaser of a fixed fee for collection costs, currently set at €40, plus penalties charged at a rate equal to the interest rate used by the European Central Bank at its most recent refinancing operation plus 10 percentage points, but under no circumstances less than three times the legal interest rate.
7-2.4 Suspension of pending order
In the event of a late payment, the Seller may suspend all pending orders, without prejudice to any other course of action.
7-3 Payment guarantee
7-3.1 In accordance with French Law 80-335 of 12 May 1980, the Seller expressly reserves the right to retain ownership of the goods sold until the final day of payment in full.
7-3.2 In the event of a suspension of payments or complete or partial non-payment of a single payment instalment, the Purchaser shall formally refrain from the continued use or sale of any goods still owned by the Seller and related to the sales contract and for which the price has not yet been completely paid and actually received.
7-3.3 If the Purchaser leaves any payment instalment completely or partially unpaid, the Seller may, without losing any of its rights, demand the return of all of the goods in the Purchaser’s orders for which payment has not yet been made in full and actually received; the parties agree that in such circumstances, all of the orders are expressly indivisible.
7-3.4 For the purposes of this provision and by way of derogation from Article 1253 of the Civil Code, said derogation being expressly accepted by both parties, the payments made by the Purchaser shall as a priority be applied to any invoices for goods that have been used or resold, regardless of how those payments may be applied subsequently by the Purchaser and even if their amount corresponds exactly to an invoice amount. Application of a payment to a specific invoice will be based on the use or sale of the goods covered by that invoice.
7-3.5 For the duration of the retention of ownership, the goods sold must be insured by the Purchaser against all risk of damages and liability caused or incurred by said goods. In the event of a partial loss, the Purchaser shall be responsible for restoring the goods to proper condition, at its own expense. The Insurer shall pay insurance claims directly to the Purchaser, upon the Seller’s written consent. In the event of a total loss, the payments from the Insurer shall be acquired by subrogation by the Seller, without prejudice to any recourse or action the Seller may bring against the Purchaser. 7-3.6 The Purchaser must take all appropriate measures to ensure that the goods sold and invoiced by the Seller can be identified.
7-3.7 In the event of a suspension of payments, bankruptcy petition, collective amicable settlement procedure or declaratory judgement against the Purchaser, the latter must notify the Seller thereof immediately in order that the goods that were sold but for which payment has yet to be made in full and actually received can be identified and inventoried and the retention of ownership provision applied as necessary.
7-3.8 The Seller may also claim from any sub-purchasers the price or portion of the price of the goods sold by the Seller to the Purchaser, including the retention of ownership clause, that has neither been paid in full and actually received nor offset in a current account between the Purchaser and its sub-purchasers. To exercise that right, the Purchaser agrees to provide the Seller, as soon as possible upon the latter’s first request, all necessary information regarding the sub-purchasers and the goods sold.
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