STANDARD TERMS AND CONDITIONS OF SALE (STC)
ARTICLE 1 – APPLICATION AND ENFORCEABILITY OF THE STC
These general terms and conditions are the sole basis for the business relationship between the parties.
They define the conditions under which the company SARL SEDEM (hereinafter the “Supplier”) provides the following services and products to professional customers (hereinafter the “Buyer”) requesting them: collection, recycling and processing of thermoplastic scrap, sale of secondary raw materials (hereinafter “products”), and all of the operations described herein referred to as the “provision”.
These general terms and conditions shall apply without restrictions or reservations to all sales of provisions by the Supplier to the buyer, unless the Supplier agrees to specific conditions in writing.
By placing an order with SEDEM, the buyer accepts these STC as part of the agreement without any qualification or condition. No special condition shall prevail over these STC in the absence of formal written acceptance on the part of the seller. Any provision to the contrary that the buyer seeks to rely on shall therefore, in the absence of any written acceptance, be unenforceable vis-à-vis the seller. The fact that the seller refrains at any time from relying hereon shall not be deemed to constitute a waiver of the right to subsequently rely on any of the said conditions.
ARTICLE 2 – FORMATION OF CONTRACT
The contract shall not be formed and the seller shall not be bound until:
• its offer is signed and returned without any qualification or condition on the part of the buyer
• and/or the dispatch by the seller of an order confirmation.
ARTICLE 3 – DELIVERY TERMS AND CONDITIONS AND DEADLINES
3.1. Delivery shall take place either by direct remittance of the product to the buyer, or by mere notice of availability, or by handover to a shipper or carrier on the seller’s premises.
3.2. Delivery times shall be computed as of departure from the seller’s factory and shops, and are stated for information purposes only without being binding. Delivery times shall not be computed until the buyer has provided the seller with the information and documents required for completion of the order. Non-compliance with delivery times shall not give rise to any damages, withheld payments or cancellation of orders.
3.3. Neither party shall be held liable for lateness or failure to perform one of its obligations under the contract if the lateness or breach are the direct or indirect result of force majeure or exceptional circumstances, such as natural disasters, earthquakes, storms, fires, floods, etc., armed conflicts, war, conflicts, attacks, labour disputes, total or partial strikes at the Supplier’s subcontractors, service providers, shippers, postal services, public services, etc., or mandatory injunction by public authorities (import ban, embargo, etc.). This list is not exhaustive.
In that event, delivery times shall be extended by one month.
Once the said period has elapsed, each party may cancel the order concerned without being entitled to claim any damages whatsoever. However, goods manufactured at the time of cancellation shall be delivered to the buyer, and the latter shall be under an obligation to accept and pay for same.
ARTICLE 4 – TRANSFER OF RISK/RISK OF CARRIAGE
The goods delivered shall be shipped at the buyer’s risk, unless otherwise specified in the agreed offer or in the confirmation of the order. Transfer of risk shall occur upon removal of the goods from the seller’s premises by the carrier, unless otherwise specified in the agreed offer or in the confirmation of the order.
The buyer shall be responsible for taking out insurance coverage against such risk, and in case of delay, breakdown, damage or loss during shipment, for making all observations and drawing up all requisite inspection reports, for confirming its qualifications and for exercising any rights of claim as against responsible carriers.
ARTICLE 5 – ACCEPTANCE
Without prejudice to the measures to be implemented vis-à-vis the carrier, any claims in respect of conspicuous defects, flaws and/or instances of non-compliance of the product delivered as compared to the order or to the dispatch slip shall be expressed in writing within 8 days as of arrival of the products at the delivery site specified in the accepted offer or order confirmation.
Upon expiry of the said period, the buyer shall no longer be entitled to make any claim against the seller regarding such conspicuous defects, flaws and/or instances of non-compliance, nor to bring any proceedings against the seller. The buyer shall not make any claim nor bring any proceedings against the seller where the said conspicuous defects, flaws and/or instances of non-compliance affect less than 3% of the products ordered.
The buyer shall be responsible for providing all supporting evidence regarding the existence and extent of the conspicuous defects, flaws and/or instances of non-compliance noted.
It shall allow the seller all rights to inspect, record and remedy same. The buyer shall refrain from so doing personally or through a third party.
ARTICLE 6 – EXTENT, LIMITATION AND EXCLUSION OF LIABILITY
The buyer of SEDEM is a professional in the field of raw materials for the manufacture of plastic items.
In its capacity as a professional in the same specialised field, it acknowledges that it possesses skills and know-how at least equivalent to those of SEDEM.
6.1. The seller hereby undertakes solely to deliver to the buyer a product:
• that complies with the specifications set forth in its technical information sheets or individual specifications signed with the buyer,
• in the quantities specified in its offer accepted by the buyer or in its order confirmation.
Consequently, no claim or objection shall be raised nor proceedings brought by the buyer against the seller in case of improper use by the buyer of the products ordered, for instance in case of mixture of an excessive quantity of product ordered with other material, of adverse interaction of the product ordered with other material with which it is mixed, of mixtures of the product ordered with other material not complying with the technical specifications or intended final use of the finished product by the buyer and/or the end user, or of mechanisation using inadequate production tools.
6.2. The seller’s undertaking (6.1) shall be limited to one year as of delivery. Upon expiry of the said period, the buyer shall not be entitled to exercise any claim or objection nor bring any proceedings against the seller on grounds of any latent defect, non-compliance, damaging flaw, or on grounds of inconspicuous inadequacy of quantities.
Notwithstanding the foregoing, during the said one-year period following delivery, the buyer shall not exercise any claim or objection nor bring any proceedings against the seller where such latent defect, non-compliance, damaging flaw, or inconspicuous inadequacy of quantities affects less than 3% of products ordered.
6.3. In the event that the buyer brings a liability claim against the seller, the onus shall lie on the buyer to evidence the existence and extent of the latent defects, instances of non-compliance and flaws noted.
The buyer shall facilitate the inspection and remediation of the said defects, instances of non-compliance and flaws by the seller.
The buyer shall refrain from so doing personally or through a third party.
6.4. Where the seller’s liability is claimed, and even where damage (bodily injury, damage to property, moral loss, direct or consequential damage) has been caused by the products delivered, the compensation payable by the seller to the buyer shall be limited, at the seller’s option:
• reimbursement of the flawed, defective or non-compliant product, or
• replacement of the product at the place of delivery mentioned in the accepted seller’s offer. Under the warranty for hidden defects, the Supplier will be required only to replace any defective or non-conforming products at no charge or to reimburse the cost of said products, without the buyer being entitled to claim damages for any reason.
Under no circumstances will the Supplier be liable for compensating intangible or indirect damage such as operating losses, lost profit, loss of opportunity, commercial prejudice or loss of earnings.
ARTICLE 7 – PRICES AND INVOICING
Prices are expressed in euros excluding VAT, taxes and other charges. They are provided in accordance with INCOTERM EXW, except as specified in the accepted offer or order confirmation. Prices may be revisable based on any changes made to material prices, energy costs, salaries and ancillary costs associated with the order, between the contract date and the contractual delivery date, in the absence of other dates of application specified in the contract.
Each delivery shall include an invoice. The dispatch date of the products from the warehouse shall be both the date of issue of the invoice and the commencement date of the payment term in case of deferred payment.
ARTICLE 8 – TERMS AND CONDITIONS OF PAYMENT
Invoices shall be payable at the registered office. The terms and conditions of payment are those set forth in the special terms and conditions.
However, all initial orders from a customer shall be payable by cheque when the order is placed.
No discount shall be granted for early payment unless otherwise agreed, in which case the VAT on such discount must be calculated and settled accordingly.
ARTICLE 9 – OVERDUE PAYMENT OR NON-PAYMENT
In case of overdue payment or non-payment, the seller may suspend all pending orders, without prejudice to any other claim or remedy.
Any failure by the customer to pay an amount on the due date shall entitle the seller, without need for any prior formal notice, to claim interest at an interest rate of EURIBOR as of the invoice date plus 2%, accruing with effect from the due date, as well as an agreed, fixed compensation of 10% of the total amount of the invoice, all without prejudice to any other right of claim or recourse that the seller may exercise.
In the event of non-payment 48 hours after service of a formal notice that does not result in the situation being remedied, the sale shall ipso jure be cancelled if the seller so elects, and the latter may institute summary proceedings to recover the products without prejudice to any other claim for damages.
The cancellation shall apply to the relevant order and also, if the seller so deems appropriate, to all prior unpaid orders, whether delivered or pending delivery, and whether the amount thereof is due and payable or not.
In the event of payment by negotiable instrument, failure to return the instrument shall be deemed to constitute non-acceptance tantamount to non-payment. Likewise, in case of payment by instalments, failure to pay a single instalment on the due date shall result in the entire amount without formal notice becoming immediately due for payment.
In any of the aforementioned events, amounts owed in respect of other orders shall immediately become due for payment if the seller does not elect to cancel same.
The buyer shall repay all costs incurred in connection with the judicial recovery of the amounts owed, including bailiffs’ costs.
In any event, no payment shall be suspended or set-off without the seller’s prior written consent.
Any part payment shall be set off in priority against the portion of the receivable that is not secured by a statutory lien, and subsequently in order of due date starting with the earliest amounts.
ARTICLE 10 – PROVISION OF SECURITY
Any deterioration in the buyer’s credit status arising inter alia from lack of insurance coverage by the seller’s credit insurance companies may give rise to a requirement to provide security or to pay in cash or by bill payable on demand prior to the performance of the orders received.
The same shall apply in case of a change in the debtor’s capacity, in its professional activity or if a transfer, lease, pledge or contribution of its business undertaking has an adverse effect on the buyer’s financial position.
ARTICLE 11 – RETENTION OF TITLE
It is expressly agreed that the seller shall retain title to the goods delivered until full payment of the principal amount, interest and ancillary amounts owed in respect of the price.
The provision of security (bills or other) carrying a payment obligation shall not constitute payment. Solely effective collection of payment shall constitute payment. Upon delivery of the goods, the purchaser becomes liable therefore, as transfer of possession shall entail transfer of risk.
Consequently, the buyer hereby undertakes to take out an insurance policy against the risks of loss, destruction or theft of the goods and of damage that may be caused by the said goods.
In the event of seizure, attachment, garnishment or any other third-party action in respect of the goods, the buyer shall immediately notify the seller thereof.
ARTICLE 12 – CONFIDENTIALITY, INTELLECTUAL PROPERTY
All patents, models, designs, surveys, calculations and prototypes made by the seller shall remain its property. The buyer shall refrain from using, reproducing and/or providing same to third parties without the seller’s written authorisation.
ARTICLE 13: UNFORESEEN CIRCUMSTANCES
In accordance with the provisions of Article 1195 of the Civil Code, in the event of a change of circumstances unforeseeable at the time of contract conclusion or of a new order, the party not having agreed to assume a risk of excessively onerous execution may request contract renegotiation from the other contracting party.
If renegotiation is successful, the parties will immediately establish a new order formalizing the outcome of the renegotiation for the provision of the products concerned.
Should the renegotiation fail, the parties may, by mutual agreement, petition the court to terminate or adapt the contract in accordance with the provisions of Article 1195 of the Civil Code.
ARTICLE 14: COMPULSORY ENFORCEMENT
By way of derogation from the provisions of Article 1221 of the Civil Code, the parties agree that should either party fail to fulfil its obligations, the non-defaulting party may not demand forced execution of the breach.
ARTICLE 15: TERMINATION FOR BREACH
Should the buyer fail to pay for the products ordered at the due date according to Article 9 hereof, the order or contract may be terminated at the Supplier’s discretion.
It is expressly agreed that the contract may be terminated for breach as a matter of right ten days after the sending of formal notice gone unheeded in whole or in part. Formal notice may be given by registered letter with notice of receipt or by any extrajudicial document.
Formal notice must state the intention to apply this clause.
The Supplier undertakes to comply with all rules for the declaration and use of personal data communicated to it and that it may be required to process for order fulfilment and, in general, to comply with personal data protection regulations.
The Supplier guarantees that it has implemented privacy and security measures to protect data security, and in particular, to prevent data from being distorted or damaged, and to prevent unauthorized third-party access to the data.
In accordance with the Data Protection Act of 6 January 1978 as amended, the buyer has the right to access, query, modify and correct data concerning it.
The buyer also has the right to oppose the processing of its personal data for legitimate reasons, and to oppose the use of its data for commercial prospecting.
To exercise its rights, the buyer must contact SEDEM SARL by post including a photocopy of an identity document containing its signature, at the following postal address: SEDEM, 17 Rue Lou Gasty, 43350 Borne, France.
ARTICLE 17 – JURISDICTION
All disputes arising between the seller and the buyer shall be exclusively referred to the Commercial Court of PUY EN VELAY (Haute Loire district, FRANCE), even in case of multiple defendants or third-party proceedings.
ARTICLE 18 – GOVERNING LAW
All disputes arising between the seller and the buyer shall be governed by French Domestic Law, that is excluding the United Nations Convention of 11 April 1980 on the international sale of goods.
ARTICLE 19 – SEVERABILITY
The nullity of any of the above provisions shall not entail nullity of the entire STC.