GENERAL TERMS AND CONDITIONS OF SALE AND CONTRACT OF GHM-ECLATEC
Metropolitan France - March 2023 version
Article 1: General.
1. These terms and conditions apply to all offers made by GHM-ECLATEC, hereinafter referred to as: GHM-ECLATEC, and to all agreements concluded by GHM-ECLATEC with the other party regarding the sale or making goods available on other grounds. Deviating stipulations only bind GHM-ECLATEC after written approval on its part and only for the agreement to which the approval relates.
2. Employees or auxiliary persons of GHM-ECLATEC may not agree on stipulations that deviate from these terms and conditions other than by means of a written power of attorney, to be granted separately for each agreement.
3. Reference by the other party to its own terms and conditions is not accepted by GHM-ECLATEC, unless this has been agreed in writing for each individual case.
4. In the event of a contradiction between the Dutch, French and English text or in the event of an explanation of the content and purport of these general terms and conditions, the French text will always be decisive.
Article 2: Quotations, formation and amendment of the agreement.
1. Offers from GHM-ECLATEC are always without obligation, even if they contain a term for acceptance; such term is never intended to bind GHM-ECLATEC for the stipulated term. If an offer from GHM Eclatec is accepted, GHM Eclatec has the right to revoke the offer within two working days after receipt of the acceptance.
2. Pictures, drawings, technical specifications and other data, whether or not included in prospectuses, catalogues, circulars, advertisements or price lists, provided by GHM Eclatec to the other party before, during or after the quotation or order confirmation, have the character of an approximate designation. Data derived therefrom are only binding if expressly agreed in writing.
3. If quotations or order confirmations are based on data, drawings, etc. provided by the other party, GHM Eclatec may assume that those data are correct.
4. Changes to the agreement - including a (resulting from) changes to the agreed price - can only be made in writing.
5. All rights of offers, order confirmations, calculations, models, (technical and other) designs, descriptions, (technical and other) drawings, sketches, diagrams and others, whether or not included therein, made by or via GHM Eclatec non-electronic, data or data/collections are held by GHM Eclatec or the designer.
6. Documents or data/collections established or published by or via GHM Eclatec as referred to in paragraph 5 of this article remain the inalienable property of GHM Eclatec or the designer and may not be made available to third parties for inspection in any form whatsoever. be made available or disclosed in any other way, whether or not free of charge and whether or not in use, without the prior written consent of GHM Eclatec or the designer.
7. Documents or data (collections) as referred to in paragraph 5 of this article must be returned complete and undamaged at the first request of GHM Eclatec; if no agreement is reached, they must be returned immediately.
8. If the other party acts contrary to the provisions of paragraphs 6 or 7 of this article, it will pay GHM Eclatec, without any notice of default being required, an immediately due and payable, not subject to discount or set-off by the other party, for each violation. penalty of 15% of the sales price with a minimum of € 1,000,=, without prejudice to GHM Eclatec's right to claim additional compensation in addition to the aforementioned penalty.
Article 3: Prices and billing.
1. All prices are exclusive of VAT, freight, insurance and packaging costs, unless agreed otherwise in writing.
2. The risk of an incorrect statement of the VAT number of the other party lies with the latter, regardless of whether or not the statement originates from the other party.
3. Prices, costs or fees quoted by GHM Eclatec, hereinafter referred to as: prices, are based on the prices applicable at the time of the statement, exchange rates for foreign currencies, import duties and equivalent levies, insurance premiums, wages, freight, taxes and other such factors. If one or more of the aforementioned factors change after the agreement has been concluded, GHM Eclatec is entitled to change the agreed price accordingly. GHM Eclatec reserves the right to invoice in the interim.
Article 4: Payment.
1. The other party is obliged to provide security for timely and full payment of its payment and other obligations at GHM Eclatec's first request and to the satisfaction of GHM.
2. The other party is obliged to pay the invoiced to GHM Eclatec's bank account strictly within 30 days after the invoice date.
3. Obligations to pay an amount by or to GHM Eclatec can only be legally fulfilled by payment of an amount in euros, with conversion taking place to the exchange rate of the date on which the payment takes place.
4. In the event of changes to the agreement, regardless of the cause, settlement will take place on the basis of additional and less work, including associated design and drawing work. Additional work will be calculated on the basis of the price-determining factors that apply at the time the additional work is performed. The costs of additional or extra work that must necessarily be performed in order to comply with changed general safety regulations or regulations of energy supply companies will be charged to the other party.
5. Negligence on the part of the other party with regard to the purchase of goods or not giving GHM Eclatec the opportunity to carry out the agreed work shall not affect the payment obligation of the other party.
6. If the other party has not fulfilled its obligations on the due date, it will immediately be in default without notice of default being required. In that case, all obligations of the other party towards GHM Eclatec under all agreements concluded between the other party and GHM Eclatec become immediately due and payable and the other party is liable for all damage suffered or to be suffered by GHM Eclatec.
7. In the absence of timely payment, the other party owes interest equal to the commercial interest in accordance with the provisions of art. 6:119a Dutch Civil Code.
8. Costs of collection, both judicial and extrajudicial, are for the account of the other party. These costs - including the judicial costs - include all costs actually incurred by GHM Eclatec, also insofar as they exceed an order for costs.
Article 5. Delivery term
1. Agreed delivery terms shall never be regarded as deadlines. In the event of late delivery, GHM Eclatec must therefore be given written notice of default.
2. The agreed delivery period commences on the latest of the following times:
a. the day of the conclusion of the agreement;
b. the day of receipt by GHM Eclatec of the data, items, etc., to be provided by or on behalf of the other party and for the execution of the delivery;
c. the day of receipt by GHM Eclatec of the permits, exemptions and similar decisions obtained by the other party, necessary to carry out the delivery;
d. the day of receipt by GHM Eclatec of the agreed (partial) payment, which must be paid upon conclusion of the agreement;
3. When part of an order is ready, GHM Eclatec can, at its discretion, deliver this part or only deliver it when the entire order is ready, without prejudice to the other provisions of this article.
4. If more or extra work is commissioned after the agreement has been concluded, the delivery term will be extended accordingly, unless otherwise agreed in writing.
5. If the other party remains in default to take delivery or to give GHM Eclatec the opportunity to perform its work, then GHM Eclatec can, at its option, either store the goods to be delivered (or have them stored) at the expense and risk of the other party, whereby the goods in question are deemed to have been delivered and any work agreed upon is deemed to have been performed and delivered, either to declare the agreement or the part thereof that has not yet been performed dissolved, without judicial intervention and without notice of default being required, all this without prejudice to GHM Eclatec entitled to compensation.
Article 6: Delivery, transfer of risk and transport.
1. Should any material required for the execution of the agreement be unavailable due to circumstances beyond the fault of GHM Eclatec, then GHM Eclatec has the right to use replacement material that it deems suitable for the intended purpose.
2. After the agreement has been concluded, GHM Eclatec is entitled, without consulting the other party, to make minor changes to drawings, measurements, weights and specifications that, in its justified opinion, improve the quality of the goods to be delivered, and the agreement thus modified.
3. The other party bears the risk of the goods ordered by it from the moment they are delivered to it. Delivery of the goods takes place ex works.
Article 7: Retention of title and right of retention
1. As long as the other party has not paid the full amount of the claim with any additional costs and any claim for compensation from GHM Eclatec due to an attributable shortcoming on the part of the other party or has not provided sufficient security for this, GHM will retain Eclatec claims ownership of the goods.
2. GHM Eclatec also retains ownership of the goods for that which the other party owes or becomes due to GHM Eclatec on the basis of earlier or later agreements under which GHM Eclatec has delivered or will deliver goods and/or has activities in addition to the delivery. performed or will perform, or on account of a shortcoming of the other party in the fulfillment of an agreement as referred to above, unless the other party has provided sufficient security for its obligations as referred to above.
3. Ownership is transferred to the other party as soon as the other party has fulfilled all its obligations as referred to in paragraphs 1 and 2 of this article.
4. For the application of the provisions of the first paragraphs of this article, unless otherwise agreed, any payment that could be attributed to two or more obligations of the other party towards GHM Eclatec will be attributed in the first place to the GHM Eclatec obligation(s) to be designated, for which the retention of title referred to in paragraphs 1 and 2 of this article does not apply. Payment statements, reminders, etc. provided by or on behalf of GHM Eclatec to the other party cannot be regarded as an instruction as referred to in the previous sentence, unless GHM Eclatec expressly determines otherwise in writing.
5. As long as the ownership of goods delivered by GHM Eclatec has not yet been transferred to the other party, the other party is obliged to properly insure and keep insured the goods that are GHM Eclatec's property against fire and theft. The other party is obliged to provide GHM Eclatec with the policy and proof of payment of the insurance premium for inspection on request.
6. The other party is obliged to notify GHM Eclatec immediately by telephone of claims from third parties on goods subject to retention of title, as well as attempts by third parties to seize or seize goods subject to retention of title. The other party is also obliged to immediately confirm the aforementioned notification to GHM Eclatec in writing.
7. The other party is not entitled to claim storage costs in respect of any goods delivered to it by GHM Eclatec.
Article 8: Resale, accession and formalization
1. As long as the delivered goods have not yet been paid in full, the other party is not authorized to resell, deliver or pledge the goods or to encumber them in any other way or in any other way, under any title whatsoever, whether or not free of charge and whether or not in use, to transfer or make available to another person, unless agreed otherwise in writing.
2. The other party is also not authorized to use or treat the delivered goods in such a way that they lose their independence as long as they are still the property of GHM Eclatec.
3. If the other party forms a new good from or partly from the delivered goods, this is a good that GHM Eclatec has formed for itself and the other party will keep it for GHM Eclatec, while GHM Eclatec will remain the owner of that new good until the other party has fulfilled all its obligations towards GHM Eclatec.
4. The other party who acts contrary to the provisions of this article forfeits an immediately due and payable penalty, not subject to discount or set-off by the other party, amounting to twice the agreed price for each act that falls under one of the prohibitions, without prejudice to the right of GHM Eclatec to claim additional compensation in addition to the aforementioned penalty and without prejudice to GHM Eclatec's other rights.
Article 9: Warranty
1. GHM Eclatec guarantees the quality of the goods delivered by it and the materials used for them for a period of 12 months, provided that the goods are used in a normal, careful manner and in accordance with the instructions of the supplier and the materials used for them, as well as for the purpose for which they are used. are manufactured. In any case, GHM Eclatec never guarantees more than the guarantees provided by its own suppliers. GHM Eclatec makes no further guarantees.
2. The guarantee excludes defects in materials or parts for the delivered goods, the use of which has been prescribed by or on behalf of the other party or which have been made available to GHM Eclatec by or on behalf of the other party. Also excluded are defects in the delivered goods, which have arisen through the use of the materials or parts referred to above. In this respect, unsuitability for the use for which the prescribed materials or parts are intended is equated with a defect. GHM Eclatec is not liable on the basis of its warranty obligation if an item does not function properly as a result of a defect in a design prescribed by or on behalf of the other party,
3. GHM Eclatec's warranty obligation lapses if: - the other party itself makes changes to, repairs and/or replacements to the delivered goods or has them made by third parties not designated by GHM Eclatec, unless agreed otherwise in writing; - the other party uses the delivered goods for other than normal purposes; - the other party uses, treats or maintains the delivered goods injudiciously, carelessly or incorrectly or does not correctly follow the maintenance schedules; - defects have arisen due to negligence, accident or normal wear and tear or must be attributed to circumstances of a special nature, which GHM Eclatec, even with careful preparation and execution of the work, must reasonably be deemed not to have been able to foresee at the time of acceptance or performance; - defects have arisen from defects in, or have been caused by, goods that have been combined by the other party and/or third parties with the goods delivered by GHM Eclatec; - the other party overloads or exposes the delivered goods to extreme conditions; - the other party does not fulfill any obligation of any nature whatsoever towards GHM Eclatec arising from the agreement.
4. The costs of tracing and repairing defects that are not covered by the warranty of GHM Eclatec on the basis of this article will be charged to the other party at the rates applicable at that time.
5. The rights to be derived by the other party from this article are not transferable.
Article 10: Liability
1. Apart from cases of intent or gross negligence and subject to the provisions of art. 9, GHM Eclatec is only obliged to pay compensation for damage caused during the guarantee period and reported to GHM Eclatec in writing, if and insofar as its liability insurer makes a payment in this respect.
2. Contrary to resp. In addition to the provisions of paragraph 1 of this article, the following applies: * GHM Eclatec is not liable in any way if the other party fails to fulfill any obligation under any agreement concluded with GHM Eclatec towards GHM Eclatec, or fails to do so on time or in full; * GHM Eclatec is never obliged to pay compensation for trading loss and/or consequential damage suffered by the other party or third parties, regardless of the cause; * the other party is obliged to indemnify and compensate GHM Eclatec with regard to claims for compensation, which third parties may make against GHM Eclatec, if the damage of third parties is caused by the violation of patents and/or copyrights, by the use of drawings , data, materials or parts, or by using methods,
3. In all cases in which GHM Eclatec is entitled to invoke the provisions of the foregoing, GHM Eclatec's employees and auxiliary persons can also invoke it, as if this provision had been stipulated by the employees and auxiliary persons involved.
Article 11: Inspection/Complaints
1. Immediately after delivery, the other party shall count, measure and check the goods for visible and easily detectable defects before proceeding to storage or use. Once taken into use, items are deemed to comply with the agreement, unless the item appears to have an invisible defect that cannot be easily detected.
2. Complaints regarding numbers, measurements, weights, visible and easily detectable defects must be reported to GHM Eclatec in writing immediately, insofar as the nature of the items entails this and in other cases, within 5 days after delivery of the items. submitted. 3. Other complaints, regardless of whether they relate to deliveries made or not made by GHM Eclatec or to GHM Eclatec invoices, must be submitted to GHM Eclatec in writing as soon as reasonably possible, but in any case after thirty days after delivery. , also to enable GHM Eclatec to investigate the merits and cause of the complaint(s).
4. No complaints will be accepted about goods delivered that meet the quality requirements, but prove to be unsuitable for the purpose for which the other party wishes to use them, which was not made known to GHM Eclatec in writing.
5. Goods must be returned in accordance with GHM Eclatec's return procedure.
Article 12: Non-attributable shortcoming (major force)
1. If GHM Eclatec is temporarily prevented from fulfilling its obligations after the conclusion of the agreement due to circumstances beyond the fault and risk of GHM Eclatec, GHM Eclatec is authorized to suspend the performance of the agreement. for the duration of the impediment. Any payment securities provided by or on behalf of the other party must be extended accordingly.
2. If GHM Eclatec is permanently prevented from fulfilling its obligations due to circumstances arising as referred to in paragraph 1, each of the parties is authorized to dissolve the agreement in whole or in part.
3. The circumstances as referred to above include in any event, but not exclusively, war, danger of war, riot, acts of war, fire, water damage, flooding, strikes, occupation, exclusion, import and export restrictions, government measures, machine breakdown, disruptions in the delivery of energy, business failure and the event that GHM Eclatec is not enabled to deliver by its suppliers - for whatever reason.
Article 13: Dissolution
1. Without prejudice to the provisions of art. 4 the agreement will be dissolved by operation of law, without judicial intervention and without any notice of default being required, at the time when the other party, who has not or not fully fulfilled the obligations arising from the agreement, is declared bankrupt, provisional suspension of payment requests payment or loses the power to dispose of its assets or part thereof due to attachment, receivership or otherwise.
2. Due to the dissolution, existing mutual claims become immediately due and payable. The other party is liable for all damage suffered and to be suffered by GHM Eclatec.
3. If the other party does not, does not timely or does not properly fulfill its obligations arising for it from any agreement concluded with GHM Eclatec referred to in these terms and conditions, as well as in the event of suspension of payments, cessation or liquidation of the goods of the other party or his death, GHM Eclatec is entitled to dissolve the agreement in whole or in part, (and to reclaim what has been delivered by GHM Eclatec, insofar as it has not yet been paid for) - without judicial intervention and without notice of default being required - and/or payment of the executed part of the agreement and/or to demand advance payment for further delivery. In these cases, existing mutual claims become immediately due and payable.
Article 14: Transfer of rights and obligations, settlement and suspension
1. Where this article refers to a group company, this means a group company within the meaning of Section 2:24b of the Dutch Civil Code.
2. GHM Eclatec is at all times entitled to transfer its legal relationship with the other party to a group company affiliated with GHM Eclatec, to which the other party now grants GHM Eclatec its consent.
3. GHM Eclatec is at all times entitled to set off claims against the other party, for whatever reason and irrespective of whether or not they are due and payable, against claims, for whatever reason and regardless of whether or not these are due and payable, which the other party on GHM Eclatec or a group company affiliated with GHM Eclatec. The other party is discharged towards GHM Eclatec resp. is GHM Eclatec or the relevant group company discharged towards the other party.
4. GHM Eclatec is at all times entitled to pay amounts owed by it to the other party for whatever reason and irrespective of whether these are due and payable, to settle its debt to the other party, instead of to the latter, to an agreement with GHM Eclatec. affiliated group company, if and insofar as the group company has any claim, whether or not due and payable, against the other party,
by which payment the claim of that group company against the other party is extinguished up to the joint amount of claims.
5. GHM Eclatec is at all times entitled to suspend the fulfillment of one of its obligations towards the other party if it or a group company affiliated with it has a claim, for whatever reason and irrespective of whether or not this is due and payable, against the other party or a group company affiliated with the other party.
6. The other party is prohibited from assigning, pledging or otherwise, under any title whatsoever, whether or not free of charge, its claims against GHM Eclatec or against a group company affiliated with GHM Eclatec. To transfer or make available to others, without GHM Eclatec's prior written consent.
Article 15: Confidentiality
1. Both before and during the existence of the agreement, as well as after the agreement has ended for whatever reason, the parties undertake not to communicate in any way whatsoever to any third party any information concerning business affairs of the other party in the in the broadest sense of the word, including data concerning regulations, models, drawings, schedules, designs, data (collections) etc. as well as data concerning the company and the customers or the existence, nature and content of the (draft) agreement, without the prior written consent of the party whose data is involved.
2. If the other party acts contrary to its obligations under the provisions of paragraph 1 of this article, it will pay GHM Eclatec, without any notice of default being required, an immediately due and payable payment for each violation, not for discount or settlement by the other party forfeit a penalty of € 100,000.00, without prejudice to GHM Eclatec's right to claim additional compensation in addition to the aforementioned penalty and without prejudice to GHM Eclatec's other rights.
Article 16: Disputes
1. All agreements concluded with GHM Eclatec and any further agreements concluded for the implementation thereof are exclusively governed by Dutch law.
2. All disputes arising from the agreements referred to above will be settled exclusively by the competent court in the district of Rotterdam, without prejudice to the jurisdiction of another court with regard to provisional, conservatory or enforcement measures, unless the law prescribes otherwise.