TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale aim to regulate all contractual relations between TAMA France, a limited Company with a share capital of 1,600,000 Euro with its registered address at Zone Ouest Park – 2 rue du Portugal 72200 LE BAILLEUL, registered with the Registry of Companies of Le Mans under number 480 140 045, and the purchaser of products sold by Tama France.
1.1 In the present Terms and Conditions:
PURCHASER – means the person who purchases or agrees to purchase the products from the Vendor ;
CONDITIONS – means the present Sales Terms and Conditions, as well as any provision agreed in writing by the Vendor ;
CONTRACT – means the contract concluded between the Vendor and the Purchaser for the sale and purchase of Products. The Conditions and the corresponding order(s) from the Purchaser together form the Contract ;
DATE OF DELIVERY – means the date at which the Products are to be delivered as indicated by the Vendor, or if it past that date, the date on which delivery takes place ;
PLACE OF DELIVERY – means the place provided in the Contract for the delivery of the Products order by the Purchaser under the Contract ;
PRODUCTS – means the articles that the Purchaser agrees to purchase from the Vendor ;
VENDOR – means TAMA FRANCE, as indicated above.
2. SCOPE OF TERMS AND CONDITIONS
2.1 The Conditions apply to all sales of Products to the exclusion of any other conditions, including the conditions the Purchaser could seek to apply pursuant to a purchase order, a confirmation of order or any other similar document. The Conditions will prevail over any standard purchase orders.
2.2 Any order of Products will be deemed to imply acceptance by the Purchaser to purchase the Products under the present Conditions.
2.3 Any variation of the Conditions (including the specific conditions agreed between the parties) must be specifically authorized in writing by the Vendor.
3.1 Products are supplied in accordance with the price list applying at the date of the order and, if applicable, with the specific commercial offer addressed to the Purchaser. These prices are firm and not revisable during the period of validity specified by the Vendor. Specific price conditions can be applied pursuant to the Purchaser’s specific requirements concerning, amongst other items, delivery conditions and timeframes, conditions of packing or transport, timeframes and conditions of payment. A specific commercial offer will then be addressed to the Purchaser by the Vendor.
3.2 The Vendor reserves the right to modify his price list from time to time, by reason of the natural volatility of the raw materials used and the specific market conditions. The price list in force will be communicated to the Purchaser at the time of the order.
3.3 The price is shown before tax, which will be due at the rate in force at the date of invoicing by the Vendor.
3.4 All prices are in Euro unless provided otherwise, and all payments must be made in euro unless agreed differently in writing by the Vendor.
3.5 No discount will be granted by the Vendor on account of an immediate payment, or a payment made in an earlier timeframe than that provided in the present Conditions or in the invoice issued by the Vendor.
4.1 The price includes the packaging and delivery to the Place of Delivery when the delivery takes place in metropolitan France, unless specified otherwise in the sale invoice.
4.2 The delivery takes place by all means acceptable to the Vendor, at his entire discretion, at the place specified by the Purchaser, on the day of the Date of Delivery or on a date as close as possible to the Date of Delivery It is specified that the Date of Delivery is given as an indication, and unless expressly agreed in writing by the Vendor, the delivery timeframes are not of the essence. The Vendor’s liability shall not be sought by the Purchaser where the delivery is late by no more than 60 days.
4.3 A late delivery will not entitle the Purchaser to refuse to take delivery of the Products, partial delivery of the Products, future delivery, or to refuse to perform the Contract, subject to the provisions of article 4.2.
4.4 If for any reason, the Purchaser does not accept the delivery of the Products when the Products are ready to be delivered, or if the Vendor is unable to deliver the Products at the date agreed because the Purchaser failed to communicate the delivery instructions or the documents or authorizations required, then the Vendor will be entitled to store the Products until their delivery, the Purchaser being liable for all the storage costs, insurance costs and other costs, without prejudice to the Vendor’s rights resulting from the non-delivery or the non-payment of the Products by reason of the Purchaser’s default.
5. PAYMENT TERMS
5.1 Unless provided otherwise in the Contract, subject to the provisions of article 5.3, the price must be paid, along with the Value-added tax and any other tax due, and, where applicable, the storage, insurance or delivery costs, within forty-five (45) days end of the month from the date of invoice, or within sixty (60) days from the date of invoice.
5.2 These provisions apply in the same manner (and without limitation) to the payment of fees or costs by the Vendor to undertake any modification, provide any additional service, testing or verifications.
5.3 In the event payment is done by letter of credit, and this provision is deemed to be of the essence, the letter of credit must be irrevocable and drawn or confirmed by a first-rank French bank ; any justifying document must be presented to the Vendor on the latter’s first demand.
5.4 The Purchaser is not authorized to delay the payment of any invoice or any other amount due to the Vendor on the grounds of a right to set-off, or on the grounds of any claim or proceedings against the Vendor.
6. PAYMENT DELAYS
6.1 The payment terms are of the essence. In the event of a late payment of the sums due by the Purchaser beyond the timeframe set above, and beyond the payment date provided in the invoice addressed to the latter, late-payment penalties calculated at the rate of Euribor 3 months + 3%, this rate being at least equal to three times the rate of legal interest, will apply on the tax-inclusive amount of the invoice, without the need to carry out any prior formality or summons to pay.
6.2 Furthermore, a flat indemnity of 40 Euro will be due on account of recovery costs, automatically and without prior notice, in the case of late payment. The Vendor reserves the right to request additional indemnification if the recovery costs effectively incurred exceed this amount, upon the production of the supporting documents.
6.3 Any late payment will authorize the Vendor to suspend or cancel the delivery of the Products to the Purchaser.
6.4 It is specified that the Vendor’s rights under 6 above are cumulative and not alternative, and the exercise of any of these rights will not prevent the Vendor from exercising any other right and claim damages in Court.
6.5 The Vendor is entitled to rely on the terms of article 6 above, even where the title and/or the risk of the Products have not passed to the Purchaser.
7. TRANSFER OF TITLE – TRANSFER OF RISK
7.1 The risk of loss and deterioration of the Products is transferred to the Purchaser :
7.1.1 upon the delivery of the Products at the Place of Delivery ; or
7.1.2 if the Products are stored in the Vendor’s premises in application of article 4.4 or for any other reason on the instructions of the Vendor, the transfer of risks occurs at the time of reception of the Products by the Purchaser, and in any event at the expiry of a seven-day (7) time period from the date of written notice by the Vendor to the Purchaser that the Products are ready for delivery.
7.2 The Vendor may not be held liable for any damage affecting the Products during transportation once the risk has passed to the Purchaser ; the Purchaser having to issue claims against the transporter in the best possible timeframe. The Vendor undertakes to cooperate with the Purchaser in order to facilitate the exercise of his rights against the transporter.
7.3 Where the delivery took place and/or the risks passed to the Purchaser, the title to the Products will only pass to the Purchaser once the Vendor has received payment for the whole price for the Products.
7.4 Until such time the price is fully paid by the Purchaser, the Vendor reserves title to the Products, enabling him to repossess the said Products. Any part-payment by the Purchaser will remain with the Vendor by way of flat damages, without prejudice to any other legal action the Vendor is entitled to start on this count against the Purchaser. However, the risk of loss or deterioration shall transfer to the Purchaser from the time of delivery of the Products ordered, in the conditions set under article 7.1 above. The Purchaser undertakes, in consequence, to insure, at his expense, the Products ordered to the benefit of the Vendor, through an appropriate insurance, until full transfer of title, and to provide the Vendor with any justifying documents on the latter’s first-demand.
7.5 The Purchaser undertakes to keep the Products in a good state, identified and individualized, and to abstain from destroying, degrading or dissimulating any labeling or identification mark on the Products or their packaging, or relating to the Products.
7.6 The Purchaser shall not grant any security of whatever nature over the Products remaining in the ownership of the Vendor. Without prejudice to the Vendor’s other rights, should the Purchaser grant any such security, then all the amounts due to the Vendor by the Purchaser will become immediately due.
7.7 Unless otherwise agreed in writing by the Vendor, prior to expediting the Products, the Vendor reserves the right to refuse, at his sole discretion, the Purchaser’s request to return all or part of the Products ordered by the Purchaser but have not been used, whatever the reason. No return can be made without the Vendor’s written authorization, setting the conditions of return. The Purchaser is liable for the return costs. The Purchaser shall not offset the sums due to the Vendor with the sums due to him on account of the returns, without the Vendor’s prior authorization in writing. The Vendor shall not be required to refund the returns, where the Purchaser defaults in any one of his payment obligations.
8. LEGAL WARRANTY
8.1 The Products delivered by the Vendor benefit from a 12-month warranty from the date of delivery, covering the non-conformity of the Products with the order, as well as hidden defects, resulting from defects in quality, condition, design or manufacturing affecting the Products delivered and making them unfit for purpose. This warranty is limited to the replacement or refund of the non-conform or defective products.
8.2 Any warranty is excluded in the event of wrongful use, negligence or lack of maintenance of the Products by the Purchaser, normal wear and tear of the Products or force majeure, defined as comprising the following events :
(a) act of God, explosion, flood, tempest, fire or accident;
(b) war or threat or war, sabotage, insurrection, civil disturbance or requisition;
(c) acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
(d) import or export regulations or embargoes;
(e) strikes, lock-outs or other industrial actions (whether involving employees of the Seller or of a third party);
(f) difficulties in obtaining raw materials, labour, fuel, parts or machinery;
(g) power failure or breakdowns in machinery.
8.3 In order to exercise his rights, the Purchaser shall inform the Vendor, in writing, of the existence of defects no later than 90 days after discovering such defects. Failure to do so may entail the loss of his warranty rights.
8.4 The Vendor will or will procure to replace or repair the defective products or parts under warranty. This warranty also covers the labour costs.
8.5 The replacement of defective products or parts shall not result in the extension of the warranty period set above.
9. LIMITATIONS OF LIABILITY
9.1 Should the Vendor’s liability be sought, for any reason whatsoever, it shall not exceed the amount before tax paid by the Purchaser under the Contract.
9.2 The Vendor shall in no circumstance be held liable for indirect losses suffered by the Purchaser by reason of the Products, including loss of profit and loss of sales.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The Vendor owns all intellectual property rights pertaining to the Products and to his website.
10.2 The Purchaser shall indemnify the Vendor on a full indemnity basis against any and all actions, claims, legal proceedings, in respect of any infringement of any patent, registered design, copyright, trademark or other industrial or intellectual property rights resulting from compliance by the Vendor with the Buyer’s specific instructions relating to the use of the Purchaser’s intellectual property rights.
11. CANCELLATION – TERMINATION OF CONTRACT
11.1 The Purchaser shall not be entitled to cancel or terminate a Contract or an order without the Vendor’s prior authorization.
11.2 In any event, in the event of an accepted cancellation or termination, (i) the Purchaser will have to pay for all the Products ordered not delivered which have been manufactured at the date of receipt of the letter notifying such cancellation or termination ; and (ii) the Purchaser will pay for all the manufacturing costs borne by the Vendor for the Products under the Contract or the order, which are in the course of being manufactured at the date of receipt of the letter notifying the termination, in addition to a flat indemnity of xxx%.
12. GENERAL PROVISIONS
12.1 THESE CONDITIONS ARE GOVERNED BY FRENCH LAW ; ANY DISPUTE ARISING OUT OF THE CONTRACT, CONCERNING ITS VALIDITY, ITS INTERPRETATION, ITS PERFORMANCE, ITS TERMINATION, ITS CONSEQUENCES AND FOLLOW-UP SHALL BE SUBJECT TO THE JURISDICTION OF THE COURT OF COMMERCE OF PARIS.
12.2 The failure by the Vendor to exercise a right deriving from the Contract shall not be regarded as any waiver of this right.
12.3 The Vendor shall be entitled to assign or sub-contract all or part of his rights and obligations under the Contract to any other group company.
12.4 The Purchaser shall not assign any or part of his rights and obligations under this Contract without the prior authorization of the Vendor.
12.5 The Vendor reserves the right to subcontract the Contract, in all or in part.
12.6 If one or more provisions of the Contract are held to be invalid, the other provisions will remain in full force, unless they cannot be dissociated from the invalid provision.
12.7 Any notice given under these Conditions or the Contract, must be in writing by registered letter with an acknowledgement of receipt or remittance in person to the address of the party indicated in the Contract, or any other address notified from time to time by a party to the other party ; where it is not established that such notice was received earlier, any notice shall be deemed received : (i) if remitted in person, at the time it is left at the above-mentioned address ; or (ii) if given by registered letter with an acknowledgement of receipt, at the date of first presentation of the letter.
The Vendor and the Purchaser undertake to treat the confidential information received from the other party in the strictest confidentiality.