1. SCOPE
1.1. The General Terms and Conditions of Purchase (the “GTCP”) shall govern all contractual relationships between MULTIPLAST SAS (the “Purchaser”) and its co-contractors (the ”Supplier”). The GTCP are applicable to all orders (the “Order”) from the Purchaser, whether it is the purchase of goods or services (the “Supplies”). The term “Supplies” refer to both goods and services.
1.2. Unless expressly agreed by the Purchaser, acceptance of the Order by the Supplier implies its unreserved adherence to these GTCP.
1.3. When general terms and conditions of sale duly communicated, it is the general conditions of the two parties which will govern the Order within the limit of their complementarity. Any contradictory clauses between the general conditions of the Purchaser and those of the Supplier will be considered null and void and inapplicable, the parties then undertake to renegotiate the said provisions, failing which common law will replace
1.4. The contractual relationships between the Purchaser and the Supplier are governed by the following documents ranked by order of priority: (i) the order form; (ii) specifications when apply; (iii) appendix to the order form when applies; (iv) the GTCP. In the event of contradictions between the clauses contained in the above-mentioned documents, the clauses of the higher ranked document shall prevail.
2. ACCEPTANCE OF THE ORDER
Acceptance of the Order by the Supplier is made by sending the Purchaser, within seven working days from the date indicated on the Order Form, an acknowledgment of receipt. After this period, the Order will be considered as irrevocably accepted by the Supplier.
3. CONDITIONS OF DELIVERY
Delivery will be made according to the conditions defined in the Order. In the absence of specifications, the Supplier will make delivery to the Purchaser’s registered office “Delivered Duty Paid” (DDP- Incoterms CCI 2010).
4. DELIVERY TIMES
4.1. Delivery times are imperative and constitute for the Purchaser an essential clause without which he would not have contracted. The Supplier undertakes to inform the Purchaser of any incident likely to compromise compliance with these deadlines and to take the necessary measures to remedy them. All additional expenses resulting from this delay, except fault of the Purchaser and case of Force Majeure, being borne by the Supplier.
4.2. Without prejudice to the Purchaser’s right to terminate the Order and any damages to which it may be entitled, the Supplier shall bear, without formal notice, for any delay in the delivery or performance of all or part of the Supplies, a late penalty of 0.5% of the price excluding tax of late Supplies per calendar day of delay, capped at 15% of the price excluding tax of late Supplies.
4.3. The Purchaser shall notify the Supplier in writing of the amount of penalties resulting from the delay. After a period of fifteen calendar days from receipt of this notification and if within this period the Supplier has not contested the reality of the grievance in writing, the Purchaser shall be entitled to deduct the amount of these penalties from the amounts due to the Supplier for the late Order.
5. CONFORMITY CHECK AND ACCEPTANCE
5.1. Acceptance is always carried out upon complete completion of the Supplies and after their delivery to the address provided in the Order. The issuance of an Acceptance Report can in no way be interpreted as a waiver of the Supplier’s obligations, which remains fully responsible for the compliance of the Supplies with the stipulations of the Order, or even affect the extent of the contractual and legal guarantees, as well as the Supplier’s other commitments.
5.2. The Purchaser shall be entitled to carry out any checks on the progress of the execution of the Order before receipt of the Supplies, without diminishing the guarantees granted by the Supplier. The Purchaser will have, 2 working days after notification to the Supplier, a right of access to the premises of the latter during the opening hours of said premises.
5.3. Depending on the terms of the Order, a verification procedure to certify the conformity of the Supplies may be carried out before delivery and/or after delivery. The Purchaser undertakes to limit the duration of the verification procedure as much as possible, which may not exceed thirty calendar days from the date of receipt of the Supplies.
5.4. In the event of non-compliance of the Supplies with the conditions defined in the Order, the Purchaser shall inform the Supplier of this non-compliance. If the Supplier, within the notified deadline, does not check this non-compliance or does not contest it, the Purchaser reserves the right, at its option: (i) To accept the Supplies as is, in return for a discount of price ; (ii) to accept the Supplies after corrective action at the expense of the Supplier; (iii) to refuse the Supplies, the Supplies must then be taken back by the Supplier at its own expense and risk within 15 calendar days after the date of notification of non-compliance.
5.5. The non-conforming Supplies refused by the Purchaser will be deemed not delivered and will give rise to the application of the late penalties provided for in article 4 “Delivery times”.
6. PRICES, INVOICES AND PAYMENT TERMS
6.1. The prices of the Supplies are firm and non-revisable, all taxes and duties included, excluding VAT. These prices include all the costs and expenses incurred by the Supplier to produce the Supplies, including the transfer of any results and related property rights.
6.2. The date of issue of the invoice may not be earlier than the date of delivery or completion of the Supplies, in accordance with the specifications of the Order. Payment is made 45 days from the date of issue of the invoice.
6.3. In the event of late payment, late payment penalties will be paid to the Supplier, calculated at a rate equal to three times the legal interest rate applicable in France, plus a lump sum compensation for recovery costs equal to forty Euros or its amount possibly updated for subsequent years.
7. TRANSFER OF OWNERSHIP AND RISKS
7.1. Notwithstanding any retention of title clause, the transfer of title takes place on the date of receipt of the Supplies. However, if the Purchaser has made down payments on the Supplies, the transfer of ownership will take place at the time of the payment of the down payments and will relate to the materials supplied as well as the part of the Supplies in progress.
7.2. The transfer of risks takes place on the date of receipt of the Supplies.
8. WARRANTY
8.1. The Supplier warrants that the Supplies are: (i) Compliant with health, safety, and environmental regulations; (ii) conform to the technical and qualitative definition specified in the Order; (iii) free of any defect and other latent defects even if the Supplier could not reasonably be aware of them.
8.2. Acceptance of the Order by the Supplier implies a contractual guarantee applicable to any Supplies which is wholly or partially defective. Unless otherwise provided in the Order, the duration of the warranty is twenty-four months from receipt of the Supplies. The contractual warranty consists of the free replacement or repair of the Supplies and includes parts, labour, transportation, and travel. The Supplier undertakes to carry out the replacement or the repair within five working days from the declaration of the defect. If the Supplier does not comply with its obligations in this regard, the Purchaser reserves the right to perform them or have them performed by a third party at the expense and risk of the Supplier. Any replaced or repaired product or any corrected service will be guaranteed, under the same conditions above, until the expiry of the warranty period and at least for a period of six months from the date of the intervention.
9. LIABILITY AND INSURANCE
The Supplier is liable for any body injury, material and/or immaterial damage caused to the Purchaser and/or to third parties because of any non-performance or poor performance of the Order. Without limiting the liability incurred by the Supplier, the Supplier undertakes to take out and maintain Professional Civil Liability insurance “before and after delivery” presenting appropriate guarantees and capital, in view of the risks incurred for the Order and for the total duration of said risks. As such, the Supplier will produce, at the Purchaser’s first request, all insurance certificates drawn up by its insurers attesting the validity and adequacy of the guarantees for the risks incurred.
10. ENTRUSTED GOODS
10.1. The goods entrusted to the Supplier are exclusively reserved for the fulfilment of the Purchaser’s Orders and are considered as loaned pursuant to articles 1875 and following of the French Civil Code. The entrusted goods remain the property of the Purchaser and must be identified as such and stored in such a way as to avoid any confusion with the goods of the Supplier or of third parties.
10.2. The Supplier undertakes to take out an “All Risks” type insurance guarantee covering damage affecting the entrusted goods, regardless of the origin of this damage.
10.3. The Supplier undertakes to return the entrusted goods compliant and in good condition at the first request of the Purchaser. In accordance with article 1885 of the French Civil Code, the Supplier cannot under any circumstances withhold the entrusted goods by offsetting what the Purchaser owes to the Supplier.
11. PRODUCTION OF THE SUPPLIES ON A PURCHASER’S SITE
If the Supplies must be performed in whole or in part on a Purchaser’s site, the Supplier undertakes to comply with the site access rules, the safety requirements and the provisions of the Purchaser’s Internal Regulations.
12. FORCE MAJEURE
The Purchaser and the Supplier agree that are not considered as cases of Force Majeure, social conflicts as well as increases in the price of raw materials.
13. TERMINATION
13.1. Each party may automatically terminate all or part of the Order by sending a letter with acknowledgment of receipt in the following cases: (i) In the event of partial or total non-performance by the other Party of one of its contractual obligations thirty calendar days after formal notice by letter with acknowledgment of receipt remained without effect; (ii) with immediate effect in the event of the occurrence of an event of Force Majeure the duration of which exceeds thirty days.
13.2. The Purchaser may, without prejudice to any damages to which he may be entitled, automatically terminate all or part of the Order by sending a letter with acknowledgment of receipt in the following cases: (i) With immediate effect in the event of default by the Supplier to one of its contractual obligations, which it would not be likely to be remedied. The Purchaser reserves the right to execute or have executed all or part of the Order at the expense of the Supplier, the latter undertakes, at the request of the Purchaser, to communicate all the elements necessary for the realization of the Supplies ; (ii) with thirty calendar days’ notice if the Supplier’s capital is the subject of an equity investment by a company competing with the Purchaser; (iii) with immediate effect in the event of safeguard, reorganization or judicial liquidation proceedings affecting the Supplier.
13.3. If Purchaser’s customer gives notice of its decision to terminate the contract under which Purchaser placed this Order with Supplier, Supplier agrees that Purchaser shall have the right to give notice of the automatic termination of the Order by a letter with acknowledgment of receipt, respecting a notice period of thirty calendar days. On the date of receipt of the notification of termination, the Supplier: (i) Will cease and cause its subcontractors or potential suppliers to cease any operation related to the execution of the Order; (ii) will send the Purchaser as soon as possible an inventory accompanied by all supporting documents of the situation of processing and outstanding amounts relating to the Order; (iii) draw up, on the basis of this inventory and after the Purchaser’s agreement, an invoice and send it to the Purchaser for payment.
13.4. Notwithstanding all the foregoing, the Purchaser shall be entitled to cancel all or part of the Order, automatically and without warning, in the event of a delay of more than fifteen (15) calendar days in the beginning or in the execution of the command. The Purchaser will then specify whether the resolution only takes effect for the future or whether the Parties are required to return all of what they have obtained in execution of the Order. However, it is specified that this termination clause may not be invoked by the Purchaser if the delay is attributable to him.
14. ASSIGNMENT AND SUBCONTRACTING
The Supplier is prohibited from assigning, transferring, or subcontracting to third parties all or part of the rights and obligations arising from the Order without the prior written consent of the Purchaser, apart from the assignment of professional receivables.
15. AUTONOMY AND WAIVER
15.1. If any provision of the Order or the GTCP is for any reason invalid or unenforceable, the remaining provisions shall not be affected by such invalid or unenforceable provision. The parties then undertake to renegotiate the said provision in such a way as to restore a provision as close as possible to the original intention of the parties.
15.2. The fact that a party does not avail itself or delays in availing itself of a breach by the other party of any of its obligations cannot be interpreted as a waiver of the obligation in question and cannot prevent the non-defaulting party from relying on it in the future.
16. APPLICABLE LAWS AND DISPUTE RESOLUTION
16.1. The GTCP and any other contractual document are governed by French law. The application of the Vienna Convention on the International Sale of Goods is excluded.
16.2. The parties agree to submit all disputes arising from or related to the existence, validity, interpretation and/or execution of the GTCP and/or any contractual documents to the sole jurisdiction of the Commercial Court. of Vannes. However, if the disagreement between the parties relates to the conformity of the Supplies, the Purchaser and the Supplier agree, prior to any legal action, to use conciliation.