In the event of a contradiction or divergence between this translation and our company’s General Conditions of Sale, which are written in French, the French text will prevail.
1. PURPOSE
These conditions (the “Conditions”) govern the sale of panels of Tenexium, precut parts in Tenexium and protective kits (the “Product” or the “Products”) by TENEXIUM (the “Company”) to its customer (the “Customer”), who is deemed to be a professional acting in the context of its professional activity. The Conditions constitute the base of the commercial negotiation and prevail over any other of the Customer’s documents, in particular over any general conditions of purchase unless prior and explicit agreement is given by the Company. All orders, order confirmations or acceptances of estimates by the Customer (the “Order”), irrespective of the method, imply and entail the express, unreserved acceptance of all the clauses and terms set out in the Conditions, from which they may not be exempted without the Company’s prior written agreement. If no such agreement is given, the Company will be bound only by what is expressly stipulated in the Conditions.
2. GENERAL PROVISIONS
The conditions, commitments or contracts granted by or placed with the Company’s representatives do not bind or commit the Company until the latter has given its written acceptance or confirmation.
All Orders are binding and constitute a purchase order.
If it does not give a written agreement following the Order, the Company will not take sole responsibility for ensuring that the Product complies with the destination country’s rules, standards and specifications. In no circumstances will the Company bear the cost of replacements and adaptation works imposed by changes in laws and regulations that have occurred after the acceptance of the Product, or where the Company has not been informed, prior to the Order, of the date on which such changes come into force.
The Customer will have sole responsibility and liability for all formalities with the competent authorities relating to authorisations, registrations, customs operations and, more generally, all the administrative formalities required to use the Product, along with all the financial consequences that arise therefrom.
The Company may not in any circumstances be held liable for any administrative difficulties encountered by the Customer, and such difficulties may not be used as a reason for non-payment or deferred payment of the price.
3. QUOTE – PURCHASE ORDER
A quote can be produced at the Customer’s request.
The costs of preparing this quote as well as any related costs will be invoiced.
Signing of the quote contains the Order.
4. PRICE, BILLING AND PAYMENT
4.1. PRICE
The price of the Products is the price in force at the time the Order is placed, expressed in euros.
Unless otherwise agreed, prices quoted are net, transport not included, excluding taxes, on the basis of the prices given to the buyer.
All taxes, duties, levies or other services to be paid in application of French regulations or those of an importing country or a transit country are the Customer’s responsibility.
The prices are fixed and are not adjustable.
4.2. BILLING
An invoice can be produced either for each Order, or for several Orders.
4.3. PAYMENTS
Unless otherwise agreed, invoices are payable within 60 (sixty) days, from the issue date of the invoice, with no discount for early settlement.
The Customer may be required to pay a deposit or full payment when placing the Order.
In all circumstances, the Company will retain all sums paid in respect of a deposit, even if the Order is cancelled, and in this case without prejudice to any damages that the Company may wish to claim.
Accepted payment methods are by bank transfer and bank cheque.
In the case of deferred payment or by instalments, payment as defined in this article means not simply handing over a cheque implying an obligation to pay, but its payment on the agreed due date.
4.4. DELAY OR DEFAULT OF PAYMENT
In case of late payment, the Company may suspend all Orders pending, without prejudice to any other course of action.
- Any amount not paid on the due date showing on the invoice automatically results from the day following the date of payment mentioned on the aforesaid invoice, in the application of late penalties. The penalty rate is set to at three times the legal interest rate. Late penalty payments are payable without a reminder being necessary.
- Moreover the Customer shall be required to pay a flat-rate sum of forty euros for each unpaid invoice to cover recovery costs in accordance with the applicable mandatory statutory provisions. However, if the recovery costs actually incurred by the Company are greater than forty euros, the latter reserves the right to claim additional compensation on supporting documents from the Customer.
In the event of non-payment relating to the sale of the Products, or of non-fulfilment by the Customer of any of his obligations, the sale may be cancelled due to the fault of the Customer if the Company sees fit (which means that Products supplied but remaining unpaid must be immediately returned to the Company), which reserves the right to request in addition an award for damages and interest.
This resolution will automatically take place thirty days after sending out a formal notice to execute but which remains, in full or in part, unchanged, notified to the Customer by registered letter with request of proof of receipt and indicating the intention to apply this clause.
No abstention or delay of the Company in the exercise of a right or of an appeal in relation to the Order can be interpreted as a waiver of this right or of this appeal.
When the payment is staggered, non-payment of a single instalment shall result in the immediate payment of the entirety of the debt, without formal notice.
In all the preceding cases, the amounts which would be due for other deliveries, or for any other reason, will become immediately payable.
In no case may payments be suspended or be the subject of any compensation without the prior written agreement of the Company. Any partial payments shall be charged against the amounts with the oldest due date.
5. DELIVERY – ACCEPTANCE – TRANSFER OF RISK
The delivery date mentioned on the Order is provisional. If the Customer is late in performing any of its obligations, and especially those linked to payment or the supply of technical information required to carry out the Order, the provisional date for delivering the Product will be postponed for at least an equal period.
The Products are delivered FCA from the DUPPIGHEIM factory (Incoterm CCI 2020). The Company will notify the Customer of the date on which the Products will be placed at its disposal and will then have the option of invoicing the Products. Unless agreed with the Customer, the date on which the Product will be placed at its disposal may not be prior to the provisional delivery date. In no circumstances will a disposal date of less than sixty days give the right to cancellation of the Order.
6. LIABILITIES
The Company cannot be held liable for damage of any kind, direct or indirect, which results from incorrect use of the Products. If it is shown that the Product defect causes a direct personal definite material loss, both current and foreseeable, the Company shall, up to the limit of its own responsibility, bear the cost of the repair of the material damage caused to the property of third parties or of the Customer.
For all losses, events, incidents and all causes combined, the total amount of the compensation is limited for each Order to the price of the Order. Without prejudice to the mandatory statutory provisions which may apply, these provisions define the entire extent of the Company’s responsibilities. The Customer shall vouch for the compliance of its insurers and all third parties in contractual relationship with it, with these restrictions.
7. RESERVE OF OWNERSHIP
The transfer of ownership of the Products is expressly dependent on the payment of the price in full. In the event of non-payment or late payment, the Company will have the right to re-take possession of the Products at the Customer’s expense. The provisions of this article do not prevent the transfer of risk to the Customer, from the moment of delivery, particularly the risk of theft, loss or damage, in application of the FCA from the DUPPIGHEIM factory Incoterm (Incoterm CCI 2020), of the Product subject to reserve of ownership, and of any damage that it may cause. In the event of a garnishment or any other intervention by a third party involving the Product, the Customer must immediately inform the Company to allow it to oppose the intervention and preserve its rights. The Customer furthermore agrees not to use ownership of the Product as a security or guarantee. If it decides to sell the Product, the Customer agrees to either pay the balance of the price due to the Company immediately, or to inform the buyers that the said Product is encumbered by a reserve of ownership clause, and to advise the Company of the sale so that it can preserve its rights and, where necessary, exercise a claim on the sale price vis-à-vis the buyer. In the event of insolvency proceedings, the Company reserves the right to claim the Product that has been sold and not paid for.
8. CONFIDENTIALITY
All information which may be exchanged in the context of performance of the Order or its negotiation (hereinafter referred to as “Information”) will be considered to be strictly confidential and may not be disclosed to a third party without the prior written consent of the providing party. The Information cannot be used for other purposes than the negotiation of the Order or, if it is concluded, for its performance. The confidentiality obligations with regard to all Information shall cease when this Information comes into the public domain without infringement of these provisions.
9. INTELLECTUAL PROPERTY
The Customer recognises that, subject to the rights of third parties, the intellectual property rights, whatever their nature, and the know-how used for the production, sale and after-sales support of the Products, or incorporated into it or relating to it (hereinafter referred to as the “Intellectual Rights”), shall remain the sole property of the Company, and under no circumstances shall the transfer of ownership of the Products be considered as a transfer of the Intellectual Rights. This is true particularly, but not limited to, all the manuals and all the instructions delivered with the Products, and all drawings, specifications, descriptions and illustrations supplied, communicated or distributed by the Company in any form and in any manner whatsoever.
If new know-how or a new invention likely to give rise to intellectual property rights (hereinafter referred to as the “New Rights”) were to be extracted from the Products by the Customer, or were to derive from the performance of the Order in any manner whatsoever, the Customer recognises that the New Rights shall be exclusively owned by the Company.
10. PERSONAL DATA
Information collected about natural persons will only be processed by the Company for the needs of administrative and contractual management or of sales and marketing initiatives or to satisfy legal or regulatory obligations. The legal basis for processing personal data is the legitimate interest of the Company, as this data is necessary in order to carry out its sales and marketing activities and for the performance of a contract or to take steps prior to entering into the contract.
In accordance with the General Data Protection Regulation and the French Data Protection and Freedom of Information Law, the Customer has the right to access, rectify, block, restrict and delete data concerning it and to state its requirements concerning the fate of its data in the event of its death. To exercise its rights, the Customer should address a request together with proof of identity by post to the following address: 29 rue du 14 juillet – CS 50191 – 67980 HANGENBIETEN (France) or by email to dataprotection@lohr.fr. The Customer also has the right to lodge a complaint with a supervisory authority.
11. ASSIGNMENT – SUBCONTRACTING
Orders may be executed by an assignee or a subcontractor of the Company.
12. FORCE MAJEURE
The Company will not incur any liability for having failed to fulfil an obligation, or for having fulfilled it partially or late, if such violations or delays have been caused by a case of ‘force majeure’. Total or partial strikes inside and outside the Company, war, lock-out, bad weather, epidemics, the blockage of means of transport or supplies, earthquakes, fire, storms, floods, flood damage, government or legal restrictions, accidents or events of any kind (affecting the Company or its suppliers) leading to total or partial stoppages in production, delivery or activity, are considered in particular to be cases of ‘force majeure’.
13. NULLITY OF A CLAUSE OF THE GENERAL CONDITIONS OF SALE
The nullity of a contractual clause does not entail the nullity of the Conditions.
Should the Company temporarily or permanently fail to apply one or more of the clauses of the Conditions, this cannot be construed as a waiver on its part of the other clauses of the Conditions which continue to have effect.
14. LANGUAGE
The Conditions are written in French. A translation is likely to be provided for the Customer’s needs. In the event of a discrepancy between the French version and the translation into another language, the French version shall prevail.
15. APPLICABLE LAW – COMPETENT COURTS IN THE EVENT OF A DISPUTE
These Conditions as well as the sales are governed solely by French law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods signed in VIENNA on 11 April 1980. Any dispute relating to the interpretation or execution of these Conditions, as well as the conclusion, execution or termination of the contracts of sale, will be referred to the COURTS IN STRASBOURG (France), which have sole competence in the matter, subject to any contrary mandatory provisions of French law with respect to competence.