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The sale of the products (hereinafter the “Products”) by the company issuing the invoice, or the acknowledgement of receipt of the order or any other document related to the sale (hereinafter the “Vendor”), to which these conditions are attached, is governed by these conditions and by the usages in the paper cardboard industry and trade which are not contrary to such conditions. They shall be deemed to apply without reserves to the purchaser (hereinafter the “Purchaser”), unless written exemption of the Vendor, they shall be considered as constituting the agreement between the Vendor and the Purchaser (hereinafter the Agreement). In case of discrepancy between provisions of the present conditions with a legal provision, this discrepancy shall only imply the non-application of the non-consistent provision without changing the remaining provisions of the present conditions.
The Vendor and the Purchaser shall be hereinafter referred individually to as a “Party” and collectively to as the “Parties”.
The ordering of Products which are held in stock and over the telephone does not require confirmation in writing by the Vendor. However, the Purchaser shall be bound by them after receipt of the telephone call. In that use, receipt of Products means notification of order. Orders requesting the Vendor to specifically manufacture Products shall be confirmed in writing by the Vendor, this confirmation binding the Parties. Any disagreement concerning the said confirmation shall be sent by the Purchaser to the Vendor by registered letter with acknowledgement of receipt within three (3) days from the date the confirmation was issued by the Vendor, concerning the sales of Product delivered in France. The period is extended to fifteen (15) days for sales of Products delivered outside of France.
The period or date of delivery is given on a purely indicative basis unless the confirmation of order specifies expressly that they bind the Vendor. The period or date of delivery shall be calculated from the date of the confirmation of order.
Deliveries are executed at the risk of the Purchaser.
a) Accordingly with regard to Products which the Vendor undertakes to deliver, the risk shall be considered to pass at the time of loading of Products at the Vendor’s premises on the transport’s means chosen by the latter for the Purchaser’s account. With regard to Products delivered outside France, the risk shall pass in accordance with the Incoterm incorporated in the confirmation of purchase order. If on delivery the Purchaser ascertains either deficiencies or damages to the Products, he must immediately enter reserves on the delivery documents presented for signature by the transporter/carrier and to him directly. The reserves must be confirmed by registered letter with acknowledgement of receipt to the transporter within three (3) working days following the delivery with regard to Products delivered in France and within seven (7) working days with regard to Products delivered outside of France. The Purchaser shall send a copy of the letter sent to the transporter/carrier to the Vendor.
b) With regards to Products to be collected by the Purchaser at the Vendor’s premises, the risk shall pass at the date agreed as being the date on which the Products will be available for collection at the premises of the Vendor.
The Vendor shall be released from his obligations by the occurrence of any event outside his control which prevents or delays delivery of the Products and which is not caused by an intentional or serious fault committed by him.
The Vendor shall notify the Purchaser of the occurrence and the reasons for the temporary or definitive impossibility to deliver if circumstances do not render this notification impossible.
If the impossibility to deliver is temporary, the execution of the Agreement is deferred for so long as the delivery remains impossible. However, in the event of the impossibility to deliver lasting for more than thirty (30) days, both Parties shall be entitled to terminate the Agreement without compensation.
However if the impossibility to deliver relates to a delivery already due, and which forms part of a contract providing for deliveries by instalments, the right to terminate shall apply only to the delivery which is due but not to future deliveries.
If the Vendor has already manufactured part of the Products ordered when an impossibility to deliver occurs, the Purchaser shall take delivery of the quantities which have been manufactured in accordance with the agreed conditions.
When the Purchaser fails to remove from the Vendor’s premises or when he refuses to receive delivery when delivery is due, the Vendor shall be entitled to store the Products in a warehouse at the Purchaser’s own expense and to claim reimbursement of the transport expenses from the Purchaser.
If the delay in removing from the Vendor’s premises exceeds more than two (2) weeks the date on which the Products are available for collection by the Purchaser, or if the Purchaser refuses to take delivery of the Products, the Vendor shall be entitled to terminate the Agreement, to resell the Products and to claim from the Purchaser the difference between the price initially agreed and the price of resale of the Products.
The Purchaser shall assume all risks and shall bear all liability which may result from a modification of the technical characteristics of the Products subsequent to warehousing or storage of the Products under inappropriate conditions ; the Purchaser, acting in a professional capacity, declares to have good knowledge of the warehousing or storage conditions which are appropriate for the Products.
In addition, the Purchaser shall not be entitled to make any claim for the purpose of incurring the Vendor’s liability for any reason whatsoever in the event of loss or damage suffered by the Products or any person whatsoever subsequent to use of the Products otherwise than for its intended purpose.
Unless otherwise provided, Products shall be invoiced at the prices prevailing at the date of delivery or at the date when Products are available for collection. Where discounts are offered for prompt payment, they shall be deducted from our sales subject to tax. The amount of VAT deductible by the Purchaser must therefore be reduced by the VAT on the discount. Rebates, discounts and allowances, if any, will be stated in the invoice. Conditional rebates, where the condition has occurred shall be mentioned on a credit note issued each three (3) month and mentioning periods and volumes on which it applies.
The Purchaser shall deduct the credit issued in its favour by the Vendor after full payment by the Purchaser of the invoices previously issued, not already paid and which have not been contested by the Purchaser.
The period within which payment shall be executed shall be calculated from the date of invoice.
The due date for payment shall be that indicated on the invoice.
The bill of exchange which may be forwarded with the invoices for acceptance must be returned to the Vendor within 48 hours. If the Purchaser fails to comply with this condition, the provisions provided for in § 3 hereunder will apply automatically.
The Vendor reserves the right to grant such credit terms as he may see fit in accordance with the Purchaser credit situation. Before the execution of the orders, the Vendor may also require guarantees or prior payment from the Purchaser.
Subject to the following paragraph, the opening of any bankruptcy procedure against the Purchaser, or a change of its legal status, shall automatically cause all unpaid amounts relating to delivered Products to become immediately due and payable.
With regard to a Purchaser who is subject to French law, the preceding paragraph shall only apply if the Purchaser becomes the subject of a liquidation “liquidation judiciaire” proceeding.
If an invoice which is due is not fully paid on time, the Vendor shall be entitled to:
A) The payment of late penalties the amount of which shall be equivalent to the refinancing ECB rate (European Central Bank) + 10 %. This penalty shall apply for each day late.
B) The immediate payment of all outstanding invoices.
C) Payment before delivery of all orders already accepted.
D) Finally, the payments made by the Purchaser, regardless of the appropriation given by the latter to these sums, and even if their total amount corresponds to one of the invoices, will be taken in priority as settlement for those of the Vendor’s invoices corresponding to Products that have been used or sold but not paid when due.
In case of late payment, the Purchaser shall pay to the Seller a lump sum for recovery amounting ton € 40. If recovery costs are higher than this amount, the Seller shall be entitles to receive an additional indemnification on the basis of justifying documents.
The Vendor may retain title to the Products delivered, until payment in full of all sums due to him by the Purchaser, the Products delivered, stored in the Purchaser’s inventory, shall consequently be treated by the latter as being on consignment to him and shall be properly insured by him; such Products shall remain the Vendor’s property to the extent of unpaid debts and any outstanding or otherwise sums by the Purchaser to the Vendor. If such Products cannot be identified, all Products answering the same specifications and not identified shall be deemed to belong to the Vendor to the extent of his claim. In order to simplify the identification, it is forbidden to remove the distinctive identification marks on the Products before their use. Furthermore, the resale and transformation of the Products are forbidden in case of any insolvency procedure.
The Vendor may repossess all of the Products, whether processed or not, to which title is retained either if an outstanding invoice is unpaid and/or in the event of impairment of the Purchaser’s credit.
If the Vendor repossesses the Products after processing by the Purchaser and sells them to a third party, he shall receive (i) the sale price to the extent of the value of the Products, (ii) the interest thereon from the date of invoice and (iii) the costs of the sale ; any surplus shall be paid to the Purchaser.
If the Products have been resold by the Purchaser, the Vendor will have the right of direct action regarding the sale price of these Products against a sub-purchaser or any assignee of the original Purchaser. The latters will be consequently responsible for reimbursing the Vendor all sums that are due by the original Purchaser and that are the object of the sale of the Products, subject to the present provision headed “passing of title”.
This provision shall in no event affect the provisions concerning transfer of risks. It does not preclude an action of cancellation and/or for damages by the Vendor to redress the loss of profits or injury sustained by him. The present provision is applicable whatever may be the legal status of the Purchaser. In case of any insolvency procedure it will be, if necessary, limited in its effects by the operation of law.
A product, object or thing (“Special Product”) made by the Vendor in the context of the realization and/or the implementation of a special purchase order placed by the Purchaser, shall be entirely owned by the Vendor.
Whether the making of this Special Product creates or not a cost for the Purchaser, this shall in no manner diminish the Vendor’s full proprietary rights with respect to the Special Product.
Consequently, the Purchaser shall have no right whatsoever concerning Special Product and shall refrain from making any claim whatsoever against the Vendor in this regard.
As soon as the Products are delivered, the Purchaser shall verify that they comply with the purchase order.
Without prejudice of the provisions of article II 2 a), in the case where the Products delivered are not conform, any claims must, in order to be accepted, be addressed in writing to the Vendor :
– Before any use is made of the Products and at the latest within 15 days from the date of their delivery, when the Products show obvious defects.
– Within four months from the same date when the Products have concealed defects, in this case, however claims are not admissible if more than 10% of the Products delivered are used.
The use by the Purchaser of more than 10% of the Products delivered shall constitute acceptance of them.
If, in the course of the use any Product reveals itself to be unsuitable for the use for which it is intended, the work shall be immediately suspended. The Vendor shall be informed at once and allowed to study on the spot the nature of the Product and the conditions of its use. Work shall not resume before a formal agreement has been reached between the Vendor and the Purchaser or after agreement between the Vendor and the user, if this latter is different from the Purchaser.
If the Vendor recognizes that a claim is justified, the Vendor shall take back at his own expense the unsuitable Products which shall be sent back to him by the Purchaser in good conditions and in the original or similar package and wrapping. The Vendor shall replace the Products within the shortest period of time consistent with his production capacity and with his other commitments.
The Purchaser, however, shall be entitled to claim compensation in the event when, after usage, the Products shall reveal themselves as not compliant with the characteristics guaranteed in the acceptance of the purchase order or failing that, in the delivery receipt. However, this compensation shall be limited to the value of the Products recognised as being not compliant.
In any event and in compliance with generally applicable principles of law, claims by the Purchaser with respect to all or part of the Product for whatsoever cause, unless such claims shall have been expressly admitted in writing by the Vendor, shall not in any case authorize the Purchaser to withhold the payment of any or all of the invoices of the Vendor, whether or not related to the dispute.
The United Nations convention on contracts for the international sale of goods signed on April 11th 1980 in Vienna is not applicable to the present sale, which is governed by the present conditions of sale.
Consequently, any provision to the contrary included in any document shall be considered as not applicable.
The Parties declare that they have acted in a professional capacity for the purpose of the present sale.
The Parties have agreed the following provision in relation to liability.
The Purchaser declares he acknowledges and agrees with such provision. Except as concerns the obligation to deliver the Products (“garantie de délivrance”), in case of non-performance or of total or partial defective performance by the Vendor of any of its obligations which is not due to a fraud (“dol”) or a serious fault (“faute lourde”) committed by the Vendor, the Vendor shall only be required to refund an amount equal to the price or such portion of the price which reflects the percentage of the Products affected by the Vendor’s partial, defective or non-performance. This limitation applies in particular to the non-eviction guaranty (“garantie d’éviction”) and the guaranty from hidden defects (“garantie des vices cachés”), due by the Vendor to the Purchaser. Accordingly, the Vendor shall not be liable for any fruits, costs or damages (referred to in article 1630 of the civil code) in the case of any violation of the Vendor’s non-eviction guaranty.
A) If a fault committed by the Purchaser contributes to the prejudice suffered by it due to the non-performance or total or partial defective performance by the Vendor of any of its obligations, liability for such damages shall be shared between the Parties in proportion to each of their contribution to the occurrence and/or the extent of the prejudice caused.
The term “fault” shall in particular include the case where the Purchaser fails to take reasonable measures in order to reduce or eliminate such damages.
B) Whether the Purchaser has committed a fault or not, if the prejudice suffered has been exclusively caused by the Purchaser, the Vendor shall not be liable in any manner whatsoever. Consequently, the Purchaser shall not be entitled to make any claim against the Vendor.
All disputes not resolved amicably by the Parties shall, even in case of recourse for guaranty or multiplicity of defendants, be settled by the competent courts (“Tribunal de Commerce”) of Nanterre or Le Mans depending on the company issuing the invoice, unless otherwise expressly agreed. However, the Vendor reserves the right to sue, in front of the courts having jurisdiction over the Purchaser’s principal or registered office. French law is applicable, except for the Vendor who has the possibility to elect the law of the Purchaser’s country regarding the passing of title provision and/or the repossess action described in article III 4).
The Vendor is authorized to use the Purchaser’s corporate name or trade name as a commercial reference, it is also authorized to include for the purpose of promoting its Products the image (photographs) of the printing works on the Products made by the Purchaser or on its behalf.
These conditions of sale are drafted in French and translated into English. However only the French version shall prevail, except for the provision on “passing of title” for the German Purchaser, for which the provision drafted in German language and attached to these conditions of sale shall apply.
BIS ZUR ERFÜLLUNG ALLER FORDERUNGEN, DIE DEM VERKAÜFER AUS JEDEM RECHETSGRUND GEGEN DEN KAÜFER ZUSTEHEN, WARDEN DEM VERKAÜFER DIE FOLGENDEN SICHERHEITEN GEWÄHRT, DIE ER AUF VERLANGEN NACH SEINER WAHL FREIGEBEN WIRD, SOWEIT IHR WERT DIR FORDERUNGEN NACHHALTIG UM MEHR ALS 20% UBERSTEIGT.
DIE WARE BLEIBT EIGENTUM DES VERKAÜFERS VERARBEITUNG ODER UMBILDUNG ERFOLGEN STETS FÜR DEN VERKAÜFER ALS HERSTELLER, JEDOCH OHNE VERPFLICHTUNG FÜR IHN. ERLISCHT DAS (MIT) EIGENTUM DES VERKAÜFERS DURCH VERBINDUNG, SO WIRD BEREITS JETZT VEREINBART, DASS DAS (MIT)-EIGENTUM DES KAÜFERS AN DER EINHEITLICHEN SACHE WERTANTEILMÄΒIG (RECHNUNGSWERT) AUF DEN VERKAÜFER ÜBERGEHT, DER KAÜFER WERWAHRT DAS (MIT)-EIGENTUM DES VERKAÜFERS UNENTGELTLICH. ER HAT DAS (MIT)-EIGENTUM DES VERKAÜFERS PFLEGLICH ZU BEHANDELN UND AUF EIGENE KOSTEN BRANCHENÜBLICH ZU VERSICHERN. WARE, AN DER DEM VERKAÜFER (MIT)-EIGENTUM ZUSTEHT, WIRD FOLGENDEN ALS VORBEHALTSWARE BEZEICHNET.
DER KAÜFER IST BERECHTIGT, DIE VORBEHALTSWARE IM ORDNUNGSGEMÄβEN GESCHÄFTSVERKEHR ZU VERARBEITEN AND ZU VERÄUβERN, SOLANGE ER NICHT IN VERZUG IST. VERPFÄNDUNGEN ODER SICHERUNGSÜBEREIGNUNGEN SIND UNZULÄSSIG. DIE AUS DEM WEITERVERKAUF ODER EINEM SONSTIGEN RECHTSGRUND (VERSICHERUNG, UNERLAUBTE HANDLUNG) BZGL. DER VORBEHALTSWARE ENTSTEHENDEN FORDERUNGEN TRITT DER KAÜFER BEREITS JETZT KAÜFER WIDERRUFLICH, DIE AN DEN VERKAÜFER ABGETRETENEN FORDERUNGEN FÜR DESSEN RECHNUNG IM EIGENEN NAMEN EINZUZIEHEN. DIESE EINZIEHUNGSERMÄCHTIGUNG KANN NUR WIDERRUFEN WERDEN, WENN DER KAÜFER SEINEN ZAHKLUNGSVERPFLICHTUNGEN NICHT ORDNUNGSGEMÄβ NACHKOMMT.
BEI ZUGRIFFEN DRITTER AUF DIE VORBEHALTSWARE, INSBESONDERE PFÄNDUNGEN, WIRD DER KAÜFER AUF DAS EIGENTUM DES VERKAÜFERS HINWEISEN UND DIESEN UNVERZÜGLICH BENACHTRICHTIGEN, DAMIT DER VERKAÜFER SEINE EIGENTUMSRECHTE DURCHSETZEN KANN, SOWEIT DER DRITTE NICHT IN DER LAGE IST, DEM VERKAÜFER DIE IN DIESEM ZUSAMMENHANG ENTSTEHENDEN GERICHTLICHEN ORDER AUβGERICHTLICHEN KOSTEN ZU ERSTATTEN, HAFTET HIERFÜR DER KAÜFER.
BEI VERTRAGSWIDRIGEM VERHALTEN DES KAÜFERS – INBESONDERE ZAHLUNGSVERZUG – IST DER VERKAÜFER BERECHTIGT, DIE VORBERHALTSWARE ZURÜCKUNEHMEN ODER GEGEBENENFALLS AβTRETUNG DER HERAUSGABEANSPRÜCHE DES KAÜFERS GEGEN DRITTE ZU VERLANGEN, IN DER ZURÜCKNAHME SOWIE IN DER PFÄNDUNG DER VORBEHALTSWARE DURCH DEN VERKAÜFER LIEGT KEIN RÜCKTRITT VOM VERTRAGE.
DIE GESETZLICHEN BESTIMMUNGEN ÜBER DEN GEFAHRENÜNBERGANG WERDEN DURCH DIESE KLAUSEL NICHT BERÜHRT ANSPRÜCHE DES VERKAÜFERS AUF SHADENERSATZ WERDEN DURCH SIE NICHT ANGESCHLOSSEN.