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GENERAL SALES TERMS AND CONDITIONS


GSTC - PINET INDUSTRIE - April 2019 version


Head office PINET INDUSTRIE
9 rue de l’étang
ZI Paris Nord 2 
93290 TREMBLAY EN FRANCE
 

Roissy SIRET code: 407 485 556 000 10

Trade and Company Register: Bobigny B 407 485 556 – (96 B 01988) 

European VAT number: FR 18 407 485 556

 

General Sales terms and conditions.

 

Application

 

The following terms and conditions apply to all contractual relationships relative to the sale of merchandise between PINET Industrie, hereafter referred to as « the Seller » and our customers, hereafter referred to as « the Buyer » it being understood that the general sales terms and conditions of the Seller have precedence on the eventual purchasing Terms and Conditions of the Buyer.

Any specific condition must be subject to written acceptance by the Seller. By « written acceptance » is meant any document established on paper, in computerized format or by fax.

For all terms and conditions not indicated in the present document, the General sales Terms and conditions for the sale of supplies for the profession apply.

In accordance with article L441-6 of the Code of Commerce, the present General conditions constitute « the unique basis for commercial negotiations ». They therefore apply to all business of the Seller and form the Judicial basis of the contract unless specific conditions apply. The purchasing conditions are only proposals by the customer. The present terms and conditions do not comply with any contrary clauses formulated in any way by the Buyer if the Seller has not explicitly accepted them. Any exception to these General Sales Terms and Conditions, in favor of the customer, can justify compensation. Any order or acceptance of an offer by the Seller implies acceptance of the present Terms and conditions.

The General Sales Terms and Conditions also include prices of the Seller, communicated under a predetermined format; any specific format request will have to be the object of a Specific agreement.

The invalidity of any of the clauses of these terms and conditions will not affect the validity of the other clauses.

 

Contracts and orders based on these terms and conditions are subject to Company Contracts laws when they apply to the realisation of a product based on specifications or to the provision of services. They are subject to Sales Laws only when they apply to the provision of standard products.

 

Are considered contractual documents, in decreasing order of priority :

-    The offer of the Seller

-    Specific terms and conditions which have been expressly accepted by both parties,

-    The present terms and conditions,

-    The accepted order,

-    The delivery note, the Invoice.

 

Are not considered as part of the contract: commercial documents, catalogues, advertising, price lists that are not expressly mentioned in the Specific Terms and conditions. In case of dispute over the interpretation of the terms, the French version prevails.

 

Orders

 

Account opening and normal nature

Any order placed is susceptible to be subject to conditions at the opening of the account by the Seller, with the possibility of being subject to specific conditions which will be brought to the attention of the Buyer. Also, the Seller reserves the right to refuse any order which would present an abnormal or outrageous nature or which would be disproportional with the needs or financial capacities of the Buyer.

 

Definition of the Need

The Buyer, as a professional regarding the products bought, has the responsibility of the definition and expression of its needs and those of its customers, as regards use and implementation, notably concerning uses and finalities and the resulting constraints which the Buyer must take into account to choose the product. It is the Buyer’s duty to verify, before any order, that the products ordered are appropriate for these uses.

The Seller, as a professional regarding the products sold, will take into account express requests that will have been made to them by the Buyer and will respect them, within the limit of their feasibility, the respect of the contract and best practices.

 

Products made upon request from the Buyer

Any order made on the basis of a drawing or model is made only under the responsibility of the Buyer who (i) expressly declares that they hold the rights of manufacture and marketing relating to the goods created upon request by the Seller and (ii) expressly releases the Seller from any legal proceedings and in particular any action for infringement or prohibition of use.

The tools needed for the making of the parts remain the property of the Seller even if they are invoiced. The Seller keeps the tools in good technical working order, the consequences of their wear, reparation or replacement being the responsibility of the Buyer. Beyond a time span of five (5) years without use, the Seller reserves the right to destroy them without having the need to request the prior consent of the customer.

 

Prices  

Prices are established in Euros, without tax and without duty, transport, insurance, packing costs and unless expressly agreed otherwise, at « ex works » disposal « in the warehouse » of the Seller (Ex-Works – CCI Incoterm

in use at the time of the conclusion of the Contract).

Prices correspond exclusively to the products and services specific to the offer taking into account the constituent elements of the accepted order. Services provided, as well as extra supplies are invoiced a supplement. Unless agreed otherwise, specific or applicative studies and pre-studies are not included in the prices.

In virtue of article 1117 of the Civil Code, « The offer is obsolete upon the expiry of a period chosen by its author or, if unspecified, after a reasonable period. » In the absence of a period specified by the Seller, the « fixed period » as per this article will be one month. Beyond this time span, the price can be subject to modification taking into account the evolution of production costs.

 

Form of the Contract

The contract is only valid with the express acceptation by the Seller of the order materialised by an order confirmation.

If the order differs from the offer, it will only take effect if expressly agreed to by the Seller as per article 1118 of the Civil Code. Agreement to the order can be done through any written means. Any order which has been accepted by the Seller will be deemed to entail acceptance by the Buyer of the Seller’s offer.

 

Minimum Amount – Conditioning Units

A minimum order amount can be determined by the Seller and brought to the attention of the Buyer beforehand. Any order for an amount below the minimum order amount will be either not taken into account or be subject to the invoicing of specified fees.

The Seller will be able to reject an order which does not comply with the minimum conditioning unit mentioned in the Seller’s commercial documents.

For non standard parts, a minimum order amount equal to one production quantity is required.  With tolerances on material widths, the Seller can deliver the requested quantity with a tolerance of +/- 5%, and will inform the Buyer if this is the case.

 

Technical information

The technical information is summarised in the catalogue. The Seller can carry out modifications or improvements to the technical information regarding weight or conditioning. The most up to date information appears on the www.pinet-industrie.com/en website.

 

Cancelation, Modification of an order

Cancelation-Modification

Any modifications of the contract requested by one of the parties is dependent on the express agreement of the other party. An order expresses the consent of the Buyer irrevocably. It can therefore not be cancelled unless the cancellation has been expressly agreed to by the Seller. As a consequence, if the Buyer wants the cancellation of all or part of their order, the Seller will be entitled to demand the application of the contract and full payment of the price. In case of cancellation of the contract or « cancellation of the order » which has been agreed to by the Seller, previously paid instalments will be retained as indemnity and the Buyer will have to compensate the Seller for all costs incurred and all direct and indirect consequences that result from this cancellation.

 

Rules

The seller undertakes to deliver products which are compliant with applicable technical regulations and standards for which it has expressly declared compliance.

The Buyer or, when applicable, the user, is responsible for the use of the product in accordance with normal conditions of use and in conformity with safety and environment legislation which is applicable in the place of use as well as to the best practices applicable to the Buyer’s profession.

It lies with the customer to choose a product in accordance with their own or their customer’s technical need and, if necessary, to ensure adequation with the product or usage planned and respect of the applicable rules.

Unless expressly stated on the product, the product delivered is not destined to work in an explosive environment.

 

Deliveries

 

Deliveries

Delivery is reputed to have been done, unless expressly stated otherwise, upon  ex-works availability at the factory or warehouse of the Seller (Ex-Works – CCI Incoterm in use at the time of the conclusion of the Contract).

The Buyer is responsible for and shall bear the cost of transport, insurance, customs and labour.

Once the goods are available, Risks are transferred to the Buyer, and this no matter which transport means, transport price distribution method, risks and even if Transport is organised by the Seller.

The Buyer will subscribe to an insurance which will cover all risks linked to the product, as soon as it is made available. This insurance will have to include  renunciation to any recourse by the Buyer and the Buyer’s insurers against the Seller and the Seller’s insurers.

Immediate transfer of risks is not an obstacle to the Seller’s exercise of the ownership retention clause or the Seller’s right of retention.

In case the previously agreed date is exceeded, if the product has still not been picked up, storage costs may be charged.

 

Delivery period and form of the order.

Delivery periods specified always refer to products made available to the Buyer in the stores or warehouses of the Seller, regardless of the transport methods agreed for the product. However, should the Seller announce a « deadline given to the customer’s address », this date should be considered indicative. In order to be valid, orders will have to be sent in writing. 

 

Receipt of Goods and Reservations

In all cases, it is the responsibility of the Buyer to check the quantities and state of the products ordered as soon as they are received.

In case of fault, non conformity, damaged or missing parts, the customer will have to make reservations on the delivery form and make reservations or make a claim against the transporter within the legal time span and formats, in accordance with articles L133-3 and  L133-4 of the Code of commerce.

In the absence of such, the Buyer will be denied any recourse against the transporter and the Seller regarding the faults, non conformities, damages or missing items observed. Written reservations such as « subject to unpacking »  have no judicial value and do not constitute a reservation.

A claim made by the Buyer does not suspend their obligation to pay for the products that were correctly delivered, even if the Claim refers to part of the delivery.

 

Claims and Warranties

Claims can be made within two weeks after receiving the goods and returned goods are only credited after they have been received in our stores. By received, is meant the pick up of the items on site or the signing of the delivery note by the Buyer in case of delivery. The warranty of the Seller is limited to the replacement of the defective goods excluding all damages and interests for any motive whatsoever.

 

Payment and returns

 

Payment

The invoices are payable within 15 days after the date the Invoice has been issued. Any delays will give rise to penalties equal to 1.5 times the legal interest rates as well as the application of a lump sum for recovery costs of 40 Euros. When recovery costs are above this amount, additional compensation may be charged upon justification.

In case of bills extension, the costs and interest resulting from this extension will be borne by the Buyer.

When the credit of the Buyer deteriorates, the Seller reserves the right, even after partial performance of a service, to demand from the Buyer the guarantees that the Seller will judge to be suitable in order to ensure the proper performance of the commitments made. Refusal to provide these guarantees gives the Seller the right to cancel all or part of the contract.

 

Return of Goods.

Returns, namely the recovery of products and recognition of a credit note due to the Buyer can only be done after express and written prior agreement by the Seller. Agreement by the Seller to the return of a product does not give the customer the right to return other products even if they are the same.

In such a case as the Seller agrees to the return of the products, this return will have to agree with the cumulative conditions below:

-Return is only admitted for products which are in the catalogue of the Seller that is in use at the time of the return request;

-The buyer will have to return the product through paid transport at their own costs and risk;

-Return must be made to the place indicated by the Seller or if not indicated the address from which the products were originally shipped ;

-The product must be returned in perfect shape, protected or kept in its original packaging ;

-Return gives rise to the establishment of a credit note equal to the price of the concerned products, after checking the state of the products, minus  a deduction of at least 25% for the administrative management of the return and if needed any extra costs notably for the repair of the merchandise;

-Return must be done within a maximum of six months after delivery ;

-Return will be done in accordance with the process established by the Seller to this effect and communicated to the Buyer on request.

-The establishment of the credit note can be linked to the creation of a compensation order.

In case of the making of a special product made to order based on the technical specifications requested by the customer, the dispositions of the present article do not apply.

 

Reservation of ownership clause

The merchandise shall remain the property of the Seller until the sales price has been fully paid including all additional costs. The right to property remains with the Seller as long as there is a debt owed by the Buyer as a result of any order. Any gains made by the Customer or a third party to any merchandise not fully paid will be considered acquired by the Seller.

 

Intellectual Property, confidentiality

 

Intellectual Property

All drawings, studies, descriptions, technical documents or quotations presented by one of the parties to the other party are considered on loan (free loan for use) in order to discuss the commercial offer of the Seller, then, in case of order, the execution of the contract. They cannot be used by either party for any other means, or communicated to a third party without the prior agreement of the owning party of the documents.

Both parties keep full rights to their material and intellectual property on the loaned documents. These documents must be returned to the owing party once requested. Also, the studies made by the Seller, even elaborated at the request of the Buyer and increasing the usage value of the product, remain their exclusive property and cannot be communicated, executed, reproduced without express written permission from the Seller.

All transfers of intellectual property must be the subject of a written contract.

The parties guarantee that at the time of the conclusion of the contract, the content of the contractual documents and the conditions for their implementation do not use the rights to intellectual property or third party know-how. They guarantee that they will be able to make full use of them without infringing on a contractual or legal obligation. They mutually guarantee  the direct or indirect consequences of any action for damages resulting in particular from an action for infringement or unfair competition.

 

Communication

The Seller has the ownership and the rights to use trademarks, logos, technical documentation, 3D files, product descriptions, photographs, videos, sounds and so on, hereafter called « media ». These have a commercial finality and can not be assimilated to technical plans and or user manuals.

The Seller can communicate to the Buyer all or part of these media in the process of their commercial relationship. The Buyer can only make use of these for the usage of the products bought. Distributors will exclusively use the media for promotion and sales of products bought from the Seller.

If the Buyer wishes to use these documents to promote themselves separately from the presentation or promotion of the product itself, a prior specific agreement from the Seller will have to be obtained.

The Buyer can not modify, adapt, translate or make additions or deletions to the media without express prior authorisation from the Seller. It is forbidden to delete any symbol or mention marking the property or infringe on the rights of third parties, on any legislation or constitute a harmful exploitation.

Media can be invoiced. If the Buyer asks the Seller to incorporate the media in their presentation, this service will be subject to a quotation.

In the event of the termination of contractual relations between the two parties for any reason, the Buyer undertakes to immediately remove the media from its communication data.

 

Confidentiality – Business secrets

The parties mutually agree to an obligation of confidentiality concerning any confidential information, oral or written whatever it may be and whatever medium was used (discussion reports, plans, Computerised data exchange, activities, installations, projects, know-how, products etc.) exchanged in the context of the preparation of the contract, even in case of unsuccessful talks or as part of the performance of the contract, unless the information is generally well known from the public or will become well known otherwise than by the fault of or through the actions of one of the parties.

 

 

Unforeseen – Force majeure

 

Unforeseen.

It is agreed that, in case of unforeseeable change of circumstance at the conclusion of the contract making the execution excessively expensive for one of the parties, the parties will renegotiate the modification of the contract in good faith. It is agreed that, without this list being limitative, the following events are targeted : Variation of the cost of raw materials, modification of the customs tariffs, changes in the exchange rate, evolution of legislation. In case of refusal or failure of renegotiations, both parties will agree on the termination of the contract at the date and conditions that will be determined by the parties, or  ask the judge by mutual agreement to adapt the contract. Failing agreement within a reasonable time span, the judge may, at the request of a party, revise the contract or terminate it, on the date and at the conditions that the judge chooses in accordance with article 1195 of the civil code. The Seller therefore declares that they will not accept in advance the risk of such change in circumstances. No firm price stipulation or other mention shall be construed as acceptance of this risk.

 

Force majeure

None of the parties to the present contract can be held responsible for its delay or failure to fulfil one of the obligations under the contract if the delay or failure is the direct or indirect consequence of « force majeure ». « Force majeure » is confirmed in case of an event that escapes the control of one party, and could not be reasonably foreseen at the conclusion of the contract, for which the consequences could not be avoided through appropriate measures, preventing the fulfilment of the party’s obligations. If the impediment is temporary, the performance of the obligation is suspended unless the resulting delay justifies the termination of the contract. If the duration of the impediment exceeds one month, the parties will have to consult each other as soon as possible in order to examine in good faith the evolution of the contract.

If the impediment is final, the contract is automatically settled under the conditions provided for in articles 1351 and 1351-1 of the Civil Code, at the behest of the impeded party.

Without this list being exhaustive, it is expressly agreed that the following events are considered « force majeure »:

- occurrence of a natural disaster,

- earthquake, tempest, fire, flooding, etc.,

- armed conflict, war, terrorist attacks,

- working conflicts, total or partial strike of the Seller, the Buyer or the Suppliers

- imperative injunction from public authorities (import ban, embargo, etc.)

- operating accidents, machine breakdowns, explosions,

- supplier deficiency.

Each party will inform the other party without delay of the occurrence of “Force Majeure” of which the party is aware and which, in its opinion, is liable to affect the performance of the contract .

 

Warranty and Liability

 

Warranty

The Seller undertakes to remedy any malfunction resulting from a defect in the design, creation, materials and workmanship within the limit of the following provisions. The Seller’s obligation does not apply in the event of a defect originating either from a design or an implementation imposed by the Buyer.

This commitment, unless otherwise stipulated, only applies to defects that have occurred within a minimum period of 12 months (warranty period) from the date of delivery. The warranty is limited to repairs or replacement of the parts recognised as defective by the Seller and returned into his warehouse at the expense and risk of the Buyer. Only spare parts supplied, modified or remade by the Seller are guaranteed, and only for the duration of the warranty period of the main product.

In order to invoke the benefits of these provisions, the Buyer must inform the Seller, without delay and in writing, of the defects attributed to the product and provide all evidence as to the reality of these defects. The Buyer must give the Seller every facility in order to ascertain these defects.

 

Liability

The Seller’s civil liability, for all causes except for personal injury and gross negligence, is limited to 50% of the amount excluding VAT of the paid supply.

The Seller will be held responsible only for direct material damage caused to the Buyer, which would result from errors in the performance of the contract that are exclusively attributable to the Seller. It will not be required to compensate for any immaterial damages or consequential damages, such as operating, production, profit, loss of opportunity, commercial loss, loss of image, shortfall, etc. The Seller can not be held liable for any additional insurance.

In the event that penalties and indemnities have been agreed upon, they are considered lump-sum compensation and are exclusive of any other sanction or indemnity.

The Buyer waives the right of recourse against the Seller and the Seller’s insurances for damages excluded by these terms and conditions or by the contract and ensures the same waiver is obtained by its insurers.

 

Exclusions from warranty and liability

All warranties and liabilities are excluded in « force majeure » cases or notably in the following cases :

-implementation, assembly, installation, use, faulty maintenance, unsuitable or non compliant to the prescriptions that may be given by the Seller or the manufacturer of the product, or best practices,

-non compliance by the Buyer, the user or a third party of the safety and environmental regulations applicable,

- Negligence, lack of supervision,

- Lack of competence of the user of the product,

- modification or reconditioning of the product or the addition or integration of parts or elements by the Buyer, the user or a third party, without prior written approval by the Seller,

- faults that result in all or part of the normal wear of the product,

- damages, defects or accidents attributable to the Buyer, the user or a third party, faults committed by the customer in connection with the performance of the contract,

- damages resulting from use by the Buyer, technical documents, information or data emanating from the Buyer or imposed by the buyer,

- « force majeure » as defined in these general conditions.

The guarantee will be suspended in the event of non-payment by the Buyer of one of the contractual payment terms.

 

Subcontractors

The Seller reserves the right to use any subcontractor of its choice for the performance of all or part of the Seller’s obligations.

 

Applicable law and competent jurisdiction

The contract and these general conditions are subject to French law and the Commercial Court of Bobigny will have sole jurisdiction in case of dispute.