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GENERAL TERMS AND CONDITIONS FOR BUSINESS
1. Scope
1.1 These general terms and conditions for business (referred to hereinafter as "the General Conditions") shall apply to sales of goods ("Sales") and to the manufacturing of goods carried out by Celliose to special order (the goods sold and such items manufactured specially being referred to jointly hereinafter as "the Products").
If the Customer has not accepted the General Conditions in advance, they shall be deemed fully accepted as soon as the first payment is received.
The General Conditions in force shall be communicated without delay to any Customer who so requests. They shall also be available on the company's Internet site at www.celliose.com.
1.2 Any provisions contrary to these General Conditions, more specifically those included in the Customer's general conditions, shall not be applicable to Celliose unless they have specifically been accepted in writing, even if Celliose has been aware of their existence.
1.3 Celliose may amend the General Conditions at any time and would inform the Customer accordingly in writing. Celliose shall send a copy of the currently applicable General Conditions to the Customer on a regular basis.
1.4 Celliose reserves the right to waive certain clauses of the General Conditions, as negotiated with the Customer.
Celliose may draw up category-specific terms and conditions that diverge from the General Conditions for a particular type of clientele, determined on the basis of objective criteria.
2. Offers and Orders
2.1 The offers Celliose makes shall not be firm.
2.2 No orders shall be accepted for an amount less than 400 euros or for manufacturing a quantity of less than 100 kg per product.
As is customary practice, in consideration of the shortfalls or surpluses that may occur during manufacturing, the quantities ordered by the Customer shall be delivered and invoiced within the limits of a tolerance of 10% either way.
No cancellations of orders shall be accepted.
Alterations to orders may only be taken into account if they are notified in writing. Celliose reserves the right to decide whether or not to agree to them, at its sole discretion and subject to the conditions it shall lay down.
2.3 Celliose shall not be bound until such time as it has accepted an order in writing.
Promises and verbal agreements made by Celliose's employees or sub-contractors shall not be binding on Celliose unless the latter has confirmed the same in writing.
3. Prices
Sales shall be effected at the prices in force on the date of the order. For specific manufacturing, the price shall be as agreed with the Customer.
Prices are given in euros, excluding taxes, ex works, packaging extra. They shall not include transport or Customs expenses. The cost of insurance shall be borne by the Customer.
Celliose shall inform the Customer as soon as possible of any increase in price, particularly in the case of a change in the cost price in respect of any one of the following elements: raw materials, supplies sold by third parties, direct and indirect taxes and other public charges, the cost of transport, exchange rates, and changes in payroll costs.
Specific price conditions may be applied according to the specific features of the order, particularly with regard to delivery methods and lead times, and settlement periods and conditions.
Celliose may grant the Customer a reduction in the standard price, depending on the quantities ordered by the Customer.
4. Delivery – transfer of risks
4.1 The Products shall be sold on an ex-works basis.
If Celliose organises their transport, it shall act in the capacity of an authorised agent acting on the Customer's behalf. Celliose's obligation of delivery shall be deemed performed in full as soon as the Products are handed over to the first transport company.
The clause of reservation of ownership set out below notwithstanding, risk (loss, deterioration, etc) shall be transferred as soon as the Products are handed over to the first transport company.
Should the Customer fail to collect a delivery, the Customer alone would have to bear the cost of the resulting expense (transport, storage, etc) and the risks incurred by the Products.
4.2 The transport company must observe the applicable safety norms and those required by Celliose, particularly as regards the international transport of dangerous goods by road (ADR regulations). Celliose reserves the right to not hand the Products over to the transport company if it deems that the safety conditions are not met, without the Customer being able to claim any default on the part of Celliose as a result.
5. Delivery lead times
Delivery lead times shall be given for guidance only.
They shall only commence once Celliose has received all the necessary information to ensure performance of the order and, if any prior payment has been requested, once Celliose has received the corresponding payment.
In the event of delay, and after receipt of formal notice from the Customer, Celliose shall indicate to the Customer a reasonable period of time at the end of which delivery shall be effected. In the case of manufacturing to order, an order may not be cancelled on the grounds of delayed delivery.
Celliose may not be held liable unless the delivery is not made within a reasonable period of time after receiving formal notice, and subject to the provisions of point 9. Celliose's liability may not be incurred in the event of performance of the order being suspended for reasons for which the Customer is responsible.
6. Acceptance of the Products by the Customer – Compliance
6.1 The Customer shall be required to check the visible state of the Products at the time of delivery.
The Customer shall be required to inform the transport company of its corresponding reservations, confirmed by registered letter with acknowledgement of receipt, in the event of the loss, theft or delay of or damage to the Products, particularly as a result of frost.
If no reservations are expressed to the transport company, Celliose could not be held to any guarantee and, if such negligence were to be prejudicial to Celliose, it would be entitled to claim compensation from the Customer.
6.2 The compliance of the Products shall be appreciated exclusively in relation to the specifications listed on the order confirmation or other document signed by Celliose. In the absence of specific written reservations notified within 10 days of the Customer's receipt of the Products, these would be deemed compliant in terms of both quantity and quality. Any claim not made in writing or made out of time would be deemed null.
In the event of a shortfall, and subject to the tolerance limit referred to in point 2, Celliose shall have the possibility of choosing between either making an additional delivery or issuing a credit note equal to the price of the missing elements, at its discretion.
In the event of duly proven non-compliance, Celliose would replace the Products delivered as soon as possible and at its expense, subject to the provisions of point 9 below.
7. Reservation of ownership – industrial property rights
7.1 Ownership of the Products shall only be transferred to the Customer once the full price has been settled, regardless of the date of their delivery.
Until the price has been settled in full, the Customer shall be liable for the risks affecting the Products in its custody. It shall therefore undertake to have the Products it has ordered insured at its expense, in favour of Celliose, until full transfer of ownership, and to provide proof of the same immediately should Celliose so request. Should it fail to do so, Celliose would be entitled to suspend performance of its obligations.
7.2 Unless agreed otherwise, no industrial or intellectual property rights in respect of or associated with the Products shall be transferred to the Customer.
8. Conditions for payment
8.1 The price shall be payable in full and in a single payment by bank transfer within 45 days of the end of the month from receipt of the invoice, or within 60 days of the date of issue of the invoice. This period shall be indicated on the invoice sent to the Customer.
Notwithstanding, Celliose shall require full payment before delivery, after sending a pro-forma invoice, in the case of a first order, in the event of the Customer being in financial difficulty, or if any commercial disputes with the Customer are still pending.
8.2 Penalties for late payment, calculated at the monthly rate of 1% of the tax-inclusive price of the Products shown on the invoice not honoured by the Customer, would be due to Celliose automatically, without any prior notification or formal notice to pay being required.
Delay in payment on the part of the Customer would also incur payment of an amount equal to 15% of the amounts due from the Customer, without prejudice to any other action that Celliose may be entitled to take against the Customer as a result of late payment.
8.3 Should the Customer delay in paying, all other amounts payable to Celliose would immediately fall due for payment on the day following the date of settlement indicated on the first invoice not honoured by the Customer, without prior formal notice being required, and whatever the method and period for settlement initially arranged for these payments.
8.4 The Customer shall not be entitled to offset any amounts, even in the case of reciprocally payable and receivable amounts that are certain, liquid and due for payment, without first obtaining specific agreement from Celliose in writing.
9. Guarantees – Liability
9.1 The essential obligation incumbent on Celliose shall be that of delivering compliant Products.
9.2 All the Products delivered by Celliose shall be guaranteed as follows:
- subject to the provisions set out in point 6.2, Products shall comply with specifications;
- in the case of Sales, except in the case of international Sales: any hidden flaw rendering the Product unfit for use in the conditions mentioned in the technical information sheet supplied by Celliose at the time of delivery.
Celliose shall not guarantee the absence of hidden flaws in Products sold to its professional Customers in the same specialisation.
9.3 Celliose shall not be required to provide warranty:
- if the Product delivered has been altered or manipulated;
- if the instructions given by Celliose for storage have not been followed;
- if the Product has not been used in accordance with its technical information sheet;
- if the Product has been used in conditions other than those indicated on the technical information sheet;
- if the defect or flaw is due to fault on the part of the Customer.
9.4 Unless specifically agreed in writing in advance, it shall not be for Celliose to appreciate whether the Product is suitable for any specific purpose that the Customer may intend to use it for, even if Celliose is aware of the purpose. More particularly, specifications accepted by the Customer in favour of a third party (for the application of a Product, for instance) shall not be binding on Celliose, unless Celliose has specifically agreed to this in writing in advance.
9.5 In view of the nature of the Products, their variable expiry dates, the impact of storage conditions, and the importance of the conditions for use:
- the Customer must notify any defect or flaw by registered letter with acknowledgement of receipt within eight days of becoming aware of the same;
- the Customer shall be required to check the compliance of the Product on receipt, and its suitability for its intended use, if necessary by carrying out tests or requesting the Ecole de Peinture [paint institute] in Lyon to carry out checks, more particularly by means of spectrographic analysis;
- any supposed defect or flaw would be submitted to a specialist for examination, who would produce an expert's report.
9.6 Without prejudice to the overriding rules and provisions governing public order, Celliose's liability and warranty shall be limited, at Celliose's preference, to the replacement or reimbursement of the tax-exclusive price of the Products, whatever the basis for the Customer's request for compensation.
9.7 The Customer shall exonerate Celliose from all liability and compensate it if Celliose should be found against in proceedings involving a third party bound by Celliose to execution of the contract concluded with the Customer, insofar as Celliose is ordered to pay the third party an amount greater than that resulting from the General Conditions.
10. Force majeure
Celliose would be entitled to invoke force majeure if circumstances beyond its control hamper or prevent performance of its obligations, for example in the event of strike action or other social movement, the interruption of transport or supplies of raw materials or power, industrial accident, delay or difficulty in obtaining supplies caused by a third party, or failure on the part of a third party or supplier affecting the contract concluded with the Customer.
Celliose would be required to notify the Customer in writing of the occurrence of a case of force majeure within a reasonable period of time from the moment it occurs. Celliose's obligations affected by the incident would then be suspended.
11. Suspension – Termination
11.1 In the event of the Customer failing to perform any one of its obligations or if part or all of the Customer's assets were to be seized, Celliose may, at its discretion:
- suspend performance of the contract, without prior formal notice being required, or
- terminate the contract by sending the Customer written notification if sending it formal notice were to remain without effect for 8 days, with no compensation for the Customer and without prejudice as to any compensation Celliose might be entitled claim in respect of the prejudice suffered;
- in all cases, Celliose could cancel any reductions granted to the Customer.
Celliose would also be entitled to terminate the contract if a case of force majeure were to continue for longer than 4 weeks, or in the event of the liquidation or court-ordered turnaround of the Customer, and without prejudice to the applicable provisions concerning public order.
11.2 In the event of termination of the contract for any reason whatsoever, the Customer would be required to pay Celliose all outstanding debts at the time of termination, whether or not these had fallen due for payment.
12. Disputes – Place of jurisdiction
Any disputes would be submitted to the courts under the jurisdiction of the Court of Appeal in Lyon.
Relations with the Customer shall be governed by French law. In the case of international Sales, the Vienna Sales Convention shall apply, even if the country in which the Customer is established is not party to the Convention.
The original of these General Conditions has been drawn up in French. In the event of their being translated into one or more other languages, the French text alone would be authoritative in the event of a dispute.
13. Partial nullity
The cancellation of any one of the stipulations of the General Conditions would not result in the cancellation of the General Conditions as a whole.
