І – GENERAL PROVISIONS
1. Application of these terms and conditions
The present conditions govern all the sales concluded by PROVENCE FONDERIE of the products of the brand HAY CROSS (hereafter ”the Seller as from 01/01/2000.)” Any order implies obligatorily the acceptance by the Customer of the present conditions, and, except explicit contrary agreement, the renunciation of all conditions or particular established by the Customer. Conclusion of contracts
2. Catalogs and prices :
As their characteristics are regularly improved, the products offered for sale may be withdrawn from sale or modified at any time and without notice. Likewise, the Seller’s prices are subject to change depending on, among other things, variations in the price of raw materials, labor costs or taxes.
3. Ordering :
The order, an irrevocable promise to purchase, cannot be transferred to anyone without the agreement of the Seller.
3/1. Acceptance :
Only the written acceptance of the Seller’s head office is binding. This acceptance may be cancelled in the event of a change in the Customer’s legal or financial situation, such cancellation being without prejudice to all other rights of the Seller. Acceptance of an order may be subject to the payment of a deposit. Where applicable, the delivery note shall serve as acceptance of the order.
3/2 Object of the contract :
Unless otherwise agreed in writing, the object of the order consists exactly and exclusively in the products designated in the Seller’s acceptance of the order and, failing this, in the delivery note.
3/3/1. By the customer :
No cancellation of order will be accepted after validation and payment.
3/3/2. By the seller
In the event of unforeseen events that substantially alter the order data or the content of the delivery or the impossibility of execution, the order will be adapted by mutual agreement between the parties. The Seller may also cancel the order without any compensation being due to the Customer, provided that the Customer has been informed immediately, even if an extension of the delivery period had been agreed.
4/1. Place of delivery :
Whatever the destination of the products and the special conditions of sale and transport, delivery is deemed to be made from the Vendor’s depots or stores. This delivery, which entails the transfer of risks, is made either by direct delivery to the Customer, or by the issue of a simple notice of availability, or by delivery of the products to the Vendor’s Depots or stores.
4/2. Delivery time :
The delivery period is contractually fixed and runs from the date of dispatch by the Seller of the acceptance of the order and provided that the Customer has fulfilled all its contractual obligations. The Customer must take delivery as soon as the goods are available. If shipment is delayed for any reason beyond the Seller’s control and with the Seller’s consent, the goods shall be stored and handled, if necessary, at the Customer’s expense and risk, and the Seller shall not be liable for any subsequent liability in this respect. Delays shall under no circumstances justify the cancellation of the order or the payment of damages, unless the Customer gives prior notice of default and sets a final deadline. The Seller is, moreover, automatically released from any commitment relating to delivery times in the event of force majeure or events such as lockout, strike, epidemic, war, requisition, fire, flood, accidents, tooling accidents, shortage of raw materials or labor, interruption, reduction or delay in transport or any other cause leading to total or partial unemployment for the Seller or its suppliers. The Seller shall inform the Customer of the cases and events listed above.
4/3. Partial delivery :
Deliveries are possible.
5/1. Verification :
The Customer has the obligation to check the good state of the parcel and the quality of the products dice the delivery, and to formulate all the complaints in the forty-eight 48 hours and directly with the carriers or the salesman.
5/2. Complaint :
Claims for apparent or latent defects in the products and for errors in the supplies or the invoice, are valid only if they are made in writing to the Seller, excluding those made within 48 hours of receipt of the goods or knowledge of the latent defect. Material defects, even hidden, as well as errors in dimensions, quality, quantity, weight, shall only oblige the Seller to replace the incriminated products, without any compensation, the products thus replaced remaining the property of the Seller. The Seller cannot be held responsible for the direct or indirect consequences of defects on persons or goods.
5/3. Returns of goods :
Delivered products must be accepted by the Customer even if they contain minor defects. The Seller does not accept any return of products without prior authorization. Any return of products is made in the original packaging and accompanied by the delivery note.
Payment is due in Euro, without discount, and at the Seller’s headquarters.
In the event of late or non-payment in relation to the agreed due date, penalties will automatically be applied, as from the day following the said due date, at the interest rate applied by the European Central Bank to its most recent refinancing operation increased by 7 points, provided that the resulting rate is not less than one and a half times the legal interest rate. In addition, all amounts due to Seller shall be automatically due and payable, and Seller may suspend deliveries to Customer.
7. Resolutive Clause
It is expressly stipulated as an essential condition of Sale, that in the absence of immediate return with acceptance of the bills of exchange or in the absence of payment of a due date for the price of the products, the sales contracts indicated by the Seller shall be automatically terminated upon simple notification by the Seller.
8. Retention of title
8/1. Principle :
it is expressly stipulated for all sales concluded between the Seller and the Customer that the transfer of ownership of the products delivered is suspended upon full payment of the price and accessories by the Customer, who, until said full payment, undertakes not to dispose of them in any form whatsoever and to immediately inform the Seller of any act by a third party that has the object or effect of infringing the Seller’s right of ownership. The delivery of bills of exchange is only valid as payment when they are actually cashed.
8/2. Implementation :
Without prejudice to any damages and to the Seller’s right to retain any advance payments received, the Customer is obliged, at its own expense, to immediately return the products received to the Seller as soon as the Seller has expressed its desire to avail itself of this clause. If the Customer fails to return the products immediately, the Customer may be forced to do so by a simple interim injunction authorizing the Seller, pursuant to this retention of title clause, to take back the products in the Customer’s stores or workshops, or in any other place, at the Customer’s exclusive expense.
8/3. Fate of the sale contract :
The enforcement of the retention of title clause shall not prejudice the Seller’s right to force the Customer to perform or the right to demand termination and damages in the event of total or partial non-performance of the obligation to pay the price and/or its accessories, including in the event of delay or failure to accept, return or pay bills of exchange or bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange- bills of exchange.
8/4. Resale :
The customer is not authorized to resell HAY CROSS products.
9. Penal clause
If the Seller is compelled to implement the provisions of Articles 7 and 8 above, the Customer shall be required to pay the Seller, by way of liquidated damages, a sum of at least TWENTY PER CENT (20%) of the invoiced amount. In any event, partial payments of the price shall be retained by the Seller. In addition, in the event of a delay in the return provided for in Articles 7 and 8, the Customer shall pay the Seller a penalty payment equal to 0.5% of the invoiced value of the products for each day of delay. The deposit and any sums paid by the Customer shall be deducted from the amounts due in this respect.
All products delivered by the Seller shall be replaced free of charge in the event that manufacturing or material defects make their use impossible. Proof of the defect or deficiency shall be incumbent on the Customer. In all cases, the Seller’s warranty is limited to the pure and simple replacement of products recognized as defective. All other actions or warranty claims are excluded, in particular the compensation of direct or indirect damage caused to persons or objects other than the delivered products as well as the assumption of any loss of profit. Any defects or faults found must be immediately brought to the attention of the Seller in writing with any justification of their reality and, in any case, within two (2) days of their discovery. Replaced products become the property of the Seller. For products manufactured by third parties, the only warranty granted by the Seller is the assignment of all warranty claims against the manufacturer. No product may be returned to the Seller without its prior agreement. Warranty claims are time-barred after the expiration of six (6) months from the date of notification of the defect or defect. Except in the event of the Seller’s fault, the Seller’s warranty is more expressly excluded in the following cases: inappropriate or improper use of the products, incorrect operation, misuse, disassembly or repair of the products outside the Seller’s workshops, non-payment by the Customer of any sum whatsoever due to the Seller, force majeure or fortuitous event. For industrial products, this warranty is not transferable to third parties without the express written consent of the Seller.
For all disputes between the Customer and the Seller, even in the case of warranty claims or multiple defenders, the Commercial Court of Marseilles shall have sole jurisdiction, the Seller however reserving the right to refer the matter to the court of the Customer’s registered office.