TERMS AND CONDITIONS OF SALE
1. DEFINITIONS AND PRELIMINARIES
In these terms and conditions :
1.1 “the contract” means any contract to which these terms and conditions apply.
1.2 “the goods” or the “Products” means any goods the subject of the contract.
1.3 “the services” means any services supplied by the Seller the subject of this contract.
1.4 “the Seller” means OSBORN METALS SA who sells or supplies or is to sell or supply the goods.
1.5 “the Buyer” means the person who buys directly to OSBORN METALS SA or who is to buy the goods from OSBORN METALS SA.
1.6 These terms and conditions are the only ones to which the contract for the sale or supply of the goods and/or services by the Seller to the Buyer is subject. Any other conditions proposed or stipulated by the Buyer in whatsoever form, written or oral, are hereby expressly waived and excluded.
These terms and conditions may not be varied except by the written consent of a director of the Seller. An acceptance of the Seller’s quotation for the sale or supply of the goods or services or of delivery of the goods implies an unconditional acceptance of these terms and conditions
2.1 A quotation by the Seller may be withdrawn without notice ; an order given by the Buyer is not binding on the Seller until accepted by the Seller in sending The Order Acknowledgment which is considered as “the contract”.
2.2 An Order cannot be canceled by the Buyer without the payment to The Seller of a fair and reasonable compensation negotiated between the parties. This compensation would not be lower than the costs incurred by The Seller under the canceled order
2.3 Orders of less than the Seller’s advertised minimum order value will only be accepted on the understanding that a processing charge, as advised by the Seller will apply.
2.4 The contract is conditional on the Buyer confirming to the Seller (where appropriate) that a necessary letter of credit in a form acceptable to the Seller has been opened or export or import license or exchange permit has been granted.
3.1 The Seller shall be deemed to have delivered the goods either when the goods are dispatched from the Seller’s premises or (as the case may be) when the goods are ready for collection at the Seller’s premises.
3.2 The delivery dates shall not be of the essence of the contract. Any delivery time overrun cannot give rise to damages, withholding or cancellation of orders in progress.
3.3 The Seller may employ one or more sub-contractors to fulfil some of its obligations under the contract.
3.4 The Seller shall be entitled to deliver the goods by instalments and to invoice the Buyer for each instalment. Each instalment will be considered a separate transaction and the failure of any one delivery shall not affect the due performance of the contract as a whole.
3.5 Should expected delivery be agreed and necessitate overtime or additional costs, such costs and overtime expenses shall be paid by the Buyer.
3.6 The Seller reserves the right to over-or under deliver the quantities of the goods ordered by a margin of 15 per cent. Acceptance of orders for sale ex-stock is dependent upon stocks still being available at the date of delivery.
3.7 The Seller may, at its absolute discretion, make a reasonable storage charge for custody for all goods standing to the credit of the Buyer, or to the Buyer’s order. Carriage and insurance charges will, unless otherwise stated, be added to all invoices for goods delivered to the Buyer by the Seller.
4. RECEPTION – LOSS OR DAMAGE IN TRANSIT
4.1 The Buyer is required to sign a copy of the Seller’s delivery note as acknowledgement of receipt of goods. The Buyer should inspect the goods carefully as an unqualified signature shall be deemed to signify the Buyer’s acceptance that the goods are in good condition.
The Seller shall not be responsible for damage to any of the goods or loss or part thereof in transit unless the Buyer gives notice of a claim to the Seller within 3 days after having received the goods.
4.2 The Seller’s liability in the case of loss or damage in transit shall be limited to repairing or replacing the damaged or, as the case may be, lost goods and the Seller shall not be under any other liability there under whatsoever, including indirect or consequential loss and loss of profit.
4.3 In the case of delivery by a carrier, the carrier’s liability for loss or damage in transit shall be limited by the terms and conditions of carriage stipulated by the carrier, a copy of which is available on request from such carrier.
5. GOODS RETURNED :
5.1 The Seller is not obliged to accept the return of the goods for credit where it has not been in breach of the contract.
5.2 Any goods returned for the purpose of credit, when the return has not previously been authorized by the Seller, may incur a handling and inspection charge.
5.3 The Seller cannot accept responsibility for any goods, which are lost or damaged in transit or otherwise during return.
6. PRICE AND PAYMENT
6.1 Unless the sale is specifically stated to be at a fixed price the Seller’s price is the price ruling at the date of delivery. The Seller reserves the right at any time before delivery to vary the price. In the case of a variation in price during the fulfilment of an order the undelivered portions of the order outstanding at the date of such change shall be subject to a proportionate adjustment.
Unless otherwise stated by the Seller, the price payable by the Buyer is exclusive of Value Added Tax and any other tax or duty relating to the manufacture, transport, export, import, sale or delivery of the goods which shall be added to the price at the rate prevailing at the invoice date.
6.2 Unless otherwise agreed in writing payment is due 30 days after the date of the invoice without deduction for early payment.
6.3 In case of payment by draft or Letter of Credit, only the actual receipt will be considered as full payment within the meaning of these general conditions of sale
6.4 Penalties are applied when due sums due are not paid on the payment date shown on the invoice. These penalties at the annual rate of the ECB + 10 points are due by law, in accordance with Article L.441-6 of the Commercial Code, without a reminder being necessary. In addition, in case of late payment, there is a fixed compensation for recovery costs of 40 €. Supplementary compensation may be claimed, on receipts, when the recovery costs incurred exceed the amount of the lump sum compensation
6.5 Time of payment by the Buyer shall be of the essence of the contract. Under no circumstances except with the Seller’s consent shall the Buyer withhold payment of any amount due to the Seller because of a disputed claim of any nature nor shall the Buyer be entitled to claim a right of set off, claim or counterclaim in respect of any of the Seller’s obligations arising in respect of matters other than the contract to which the claim specially relates
6.6 All orders that the Seller agrees to execute are based on the fact that the Buyer presents sufficient financial guarantees, and that it will actually pay the amounts due on the agreed due date. If the Seller has serious or particular reasons to fear payment difficulties on the part of the customer at the date of the order, or later, or if the Buyer does not offer the same guarantees as the date of acceptance of the order, the Seller may subject the acceptance of the order or the continuation of its execution to the implementation of guarantees such as payment of a deposit or the entirety of the order before delivery.
In case of refusal by the Buyer of a payment before delivery, without any sufficient guarantee being proposed by the latter, the Seller may refuse to honor the order (s) passed (s) and deliver the goods concerned, without the Buyer being able to argue an unjustified refusal to.
If during a previous order, the Buyer has evaded one of its obligations including a default or a late payment, the Seller reserves the right to cancel all or part of the contract, to suspend deliveries and demand immediate payment for goods delivered or awaiting delivery.
7. RETENTION OF TITLE
7.1 The Seller have a reservation of property in any goods delivered by until such time as the Buyer has paid in full for those goods and for any other goods delivered by the Seller to the Buyer.
7.2 In case of failure to pay the price on the agreed due date, or if the buyer has any distress or execution levied against the goods or any of the Buyer’s assets, the Seller may at any time recover and dispose of any goods of which the Seller has retained the property under sub clause 7.1 and for this purpose has the Buyer’s consent to enter any property in which the goods may be lying. In this case, the Seller can consider that the sale will be resolved by right.
8. SELLER’S LIABILITY
8.1 The Seller warrants that their Products comply with the quality and type requirements indicated in the Order Acknowledgement and are free of faults and manufacturing defects
Unless otherwise agreed in writing, the warranty period shall be 12 (twelve) months after the dispatch date of the Products.
Obvious defects or quality deviations of Products shall be notified to the Seller, not later than 7 (seven) days after the discovery date and, in any case, not later than 60 calendar days after the receipt of the Products
Hidden defects (only noticeable after the use of Products) shall be notified within 7 days after the discovery of the defect and, anyway, within the warranty period.
The complaint shall be provided with the required documentation with reference to the production batch, the delivery note, the invoice, a sample of the defective product and/or photos, and all further information, which can help the correct identification and analysis of the defect.
8.2 The Seller shall not be responsible for rust on delivered steel products.
8.3 If any of the goods shall be found to be defective, the Seller may, at its option, either rectify or replace the defective part of the goods at the place of delivery and in the condition originally specified or credit the Buyer with a corresponding proportion of the original invoice price but shall not be under any other liability in respect of either the original or any replacement goods not any other obligation to reimburse or compensate the Buyer for any other costs or losses incurred by the Buyer whether direct or indirect.
8.4 The Seller shall be under no liability :
8.4.1 If the goods have not been paid for in full
8.4.2 unless the Buyer gives to the Seller written notice and details of the defects within the periods mentioned in sub-paragraph 8.1
8.4.3 unless the Buyer returns the Goods at the Buyer’s cost to the Seller if required by the Seller or otherwise gives the Seller’s representative adequate opportunity to inspect the goods and remove samples for analysis ;
8.4.4 If goods have been subjected to any manufacturing process, or if the Buyer has not used, kept, maintained or dealt with the goods properly and in accordance with the Seller’s instructions or directions issued from time to time ;
8.4.5 For repair or replacement of fair wear and tear consistent with the application of the goods ;
8.4.6 If the Buyer has permitted persons other than the Seller or the Seller’s authorized representative to effect any repair or replacement of parts, or maintenance or adjustments to the goods
8.5 In respect of goods supplied but not manufactured by the Seller, the Seller gives to Buyer only such guarantees and warranties (if any) as the Seller enjoys and can enforce in respect of the goods.
8.6 The Purchaser is solely responsible for the choice of goods and their specifications for the purpose for which they are intended..
In the case of hirework and work involving the use of the Buyer’s materials, the Seller accepts no responsibility for any distortion, faults or defects in such material (howsoever arising) which appear or develop during or are caused by the work, and the Seller gives no guarantee or warranty of any kind in relation to hirework. Subject to suitable facilities being available, the Seller will be prepared to correct such distortion, faults or defects at the Buyer’s request and expenses.
Except as provided in this condition the Seller shall be under no liability whatsoever to the Buyer in respect of defective goods or workmanship or failure to comply with the specifications or order or loss of or damage to the Buyer’s materials however such defects, failure, loss or damage shall be caused.
10. DIE, PATTERNS AND TOOLS
In the absence of agreement to the contrary, all dies, patterns and tools (other than those supplied by the Buyer) shall be and remain the property of the Seller notwithstanding that the whole or part of the cost thereof may be payable by the Buyer as part of the price for the goods or otherwise. The Seller usually preserves Dies, patterns and tools for a reasonable time in anticipation of future orders, but the seller shall be under no obligation to preserve them.
The Seller shall be under no liability to the Buyer in respect of loss or breakage of or damage to dies or patterns supplied by the Buyer howsoever such loss, breakage or damage shall be caused
11. FORCE MAJEURE :
11.1 “Force Majeure” means all the events reasonably beyond the Seller control, including, but not limited to, events such as the one listed below, only by way of example : natural events, fires, incidents, floods, thefts, rationing of raw materials, embargo, wars, strikes, shortage of labor, act by any authority or public body and delay of the supplier of the raw material required for the production,
11.2 In the event of “Force majeure”, the obligations resulting from the execution of the contract between the Seller and the Buyer are suspended for the length of the event, without penalties or responsibility for the Seller
11.3 Force majeure does not justify a suspension of payments for goods delivered.
12.1 Where the goods are supplied by the Seller with the Buyer’s instructions, specifications or drawings the Buyer shall indemnify the Seller against all costs, damages and expenses to which the Seller may become liable as a result of the infringement or the alleged infringement of any patent, registered design or any other intellectual property right.
12.2 The Buyer shall not divulge to any third party any of the Seller’s designs, drawings, specifications, or other information, which may be or come into the Buyer’s possession in relation to the contract
12.3 The copyright, design right and any other intellectual property rights in any designs, drawings, molds, fabrications or other materials produced by the Seller shall be and remain the property of the Seller.
13. PROPER LAW
The contract shall be deemed to have been made in France and shall be governed by and construed in accordance with French Law and both parties submit to the jurisdiction of the French Courts.