Conditions of sale
GENERAL TERMS & CONDITIONS OF SALE AND THE SUPPLY OF SERVICES OF MATHYM APPLICABLE AS AT FEBRUARY 25TH.
1. SCOPE
Any order for Products (hereinafter the “Products”) or the provision of services (hereinafter the “Services”) by a Customer (hereinafter the “Customer”) to our Company implies its unreserved acceptance of and full adherence to these general terms and conditions of sale and provision of services which prevail over any other document from the Customer and, in particular, over any general conditions of purchase, unless our Company expressly agrees beforehand to make an exception.
Failing any special provisions expressly agreed between our Company and the Customer, all firm accepted orders addressed to our Company shall be subject to these general conditions of sale and services.
2. ORDERS
2.1. On the basis of the information disclosed by the Customer, our Company prepares a costed proposal (hereinafter the “Offer”) specifying the properties and features of the Products, the price and delivery lead-times. Unless provided to the contrary, our Offers are valid for a maximum of 30 days from the date of their preparation.
Any change to the Offer by the Customer must be expressly accepted by our Company in an amendment (change notice) to the Offer.
The prices and particulars given by our Company prior to the Offer are given for indicative purposes and are binding on our Company only after written confirmation from us. Our Company is never required to disclose its manufacturing and production methods.
In no case may the Customer rely on any standards, specifications or requirements not expressly accepted by our Company in writing.
2.2. The Customer places its order on the basis of the Offer. All orders must be placed in writing and to be valid, must be formally accepted by our Company in an acknowledgement of order confirmation.
2.3. Orders are irrevocable for the Customer from their receipt by our Company. No request for a change to an order received by our Company shall be binding on us unless we have expressly accepted the same in writing.
2.4. All the orders we agree to carry out are done so taking account of the fact that the Customer presents sufficient financial guarantees and that he will actually settle all sums due by their due date. Accordingly, if our Company has serious reasons to believe the Customer has payment difficulties on the date of the order or subsequent thereto, or if the Customer does not present the same guarantees as it did on the date we accepted the order, our Company may make acceptance of or the continuation of performance of an order conditional on payment in cash or on the provision by the Customer of guarantees in favour of our Company. Our Company shall also have the option, before accepting any order and likewise in the course of performance thereof, to require the Customer to disclose its accounting records and, in particular, the profit and loss accounts (even provisional), to enable our Company to assess its solvency. Where the Customer declines to pay in cash and does not offer sufficient financial guarantees in lieu, our Company may refuse to meet the order or orders placed or to deliver the Products in question, without the Customer being entitled to claim any compensation whatsoever.
3. PERFORMANCE – DELIVERY
3.1. The delivery time is specified in the order or in the acknowledgement of receipt of the order.
In the event that the delivery time specified in the acknowledgement of receipt is different from that stated in the order, the delivery time specified in the acknowledgement of order shall prevail.
Our Company will use our best efforts to meet this delivery time; however, this time is not a strict deadline. Thus, late deliveries may not be grounds for cancellation of the order and our Company shall incur no liability in the case of a delay not exceeding 7 working days. In addition, in no case can the liability of our Company be incurred in case of delay attributable to the Customer or to a case of force majeure as defined hereinafter at paragraph 10.
If the order specifies penalty charges for delay, these shall constitute discharge and shall apply only if the delay is exclusively attributable to our Company and if it has caused genuine harm to the Customer noted and acknowledged by both parties.
Delivery times start to run:
either from the date on which receipt of the order was acknowledged,
or, if this date is later, on the date on which the Customer has provided all the data and, as the case may be, all materials and products necessary to enable our Company to carry out the order.
In case of incomplete or partially non-compliant delivery for any reason whatsoever, the Customer must retain the Products delivered that are compliant with the order and the payment schedules for the latter remain unchanged.
3.2. Deliveries shall be carried out by our Company, at its risk and liability.
3.3. The Products shall be delivered to the address given by the Customer. Risks and ownership of the Products transfer to the Customer as soon as the Products are handed over to one of the clerks at the delivery site.
3.4. Our Company undertakes to package the Products in accordance with best industry practice and in accordance with the regulatory provisions that apply, and to deliver them to the carrier in timely fashion sufficient to enable the delivery date to be met.
3.5. In case of damage to the Products delivered or missing items, it falls to the Customer to make all necessary reservations with the carrier. Any Product which has not been the subject of reservations expressed to the carrier by letter sent registered post with Advice of Receipt (in accordance with provisions of article L. 133-3 of the French Commercial Code) and of which a copy shall be sent simultaneously to our Company, shall be treated as accepted by the Customer.
4. ACCEPTANCE – CLAIMS
4.1. Without prejudice to the provisions to be made by the Customer with regard to the carrier as described in paragraph 3.5, in case of apparent defects or missing items, any claim relating to Products delivered by our Company shall only be accepted by us if it is made in writing, by letter sent registered post with Advice of Receipt, within the three-day time period stated in paragraph 3.5.
It is the Customer’s responsibility to supply all proof as to the reality of the apparent defects or missing items ascertained, it being specified that the unreserved acceptance of the Products by the Customer covers any apparent defect and/or shortfall.
No Products are to be returned by the Customer without our Company’s prior express agreement in writing, secured by fax or e-mail in particular.
The Customer shall be responsible for the return costs and shall only be reimbursed by our Company in the event that an apparent defect or missing items are effectively ascertained by our Company.
4.2. In case of deterioration of the Products before, during or after delivery and likewise in case of apparent defects or missing items, our Company undertakes to deliver replacement or additional Products within 30 working days; if the Products are delivered within this period, the Customer may not claim rescission of the order.
These Products shall be subject to additional invoicing solely in the case of deterioration subsequent to delivery.
4.3. – A claim made by the Customer in the conditions and according to the procedures described in this article does not suspend payment by the Customer for the Products in question.
5. PRICES
The prices of the Products are understood to exclude taxes and customs duties, costs of carriage and packing included.
6. PAYMENT TERMS
Our invoices are payable at our registered office, without discount, at 30 days date of invoice. Bills of exchange, acceptances and the place of delivery may not create a novation or a derogation to this place of payment. Remittance of a bill of exchange or of any other paper creating an obligation to pay does not amount to valid payment.
No discount shall be applied by our Company for payment in cash or earlier than specified in these general conditions or on the invoice.
Unless our Company gives express prior agreement in writing, provided that the claims are unquestionable, liquidated and payable, no offsetting may be made by the Customer between any penalty charges corresponding to the failure to meet a delivery date or to the defectiveness or non-compliance of the Products, and the sums which the Customer owes our Company in respect of purchasing these Products.
In case of non-payment of invoices, late payment charges shall run by operation of the law with effect from the first day after the payment date stated on the invoice, and are calculated at the same rate as the interest rate applied by the European Central Bank to its most recent refinancing operation plus 10 points. In this case, the rate applicable during the first half of the year in question is the rate in force on 1st January of the year in question and for the second half of the year in question, it is the rate in force on 1st July of the year in question. Late payment charges are due and payable without a reminder being necessary. A flat-rate charge of €40 will be levied in addition to this sum to cover collection costs. Where the collection costs incurred are higher than €40, our Company will seek additional compensation, against supporting documents, it being specified that all the costs of collection, including legal costs and fees, shall be at the Customer’s charge.
In addition, in case of default on payment or on a fraction thereof by due date, we reserve the right:
to decide accelerated payment on all the Customer’s invoices, including those not yet arrived at due date and regardless of the payment conditions agreed previously,to suspend performance of the order in question and/or all orders in progress with the Customer,after notice served by registered letter with return receipt has remained without effect for a period of eight days following its first presentation, to rescind the order in question and/or all orders in progress with the Customer, as a matter of law, to request such payment guarantees as we shall judge necessary,to retain all payments received in advance, by way of compensation, without prejudice to all other damages and compensation.
7. USE OF THE PRODUCTS
7.1.In its capacity as a professional, the Customer expressly recognizes the hazards linked to the composition of the Products and their use, as well as the precautions to be taken in regard to their storage and use. It is therefore solely liable for damage which the Products might cause directly or indirectly to all third parties (including damage caused to its own employees and to the environment) in the context of their storage, handling, use or marketing.
Inasmuch as our Company has knowledge of any as yet unpublished information pertaining to the Products, we undertake to pass this onto the Customer without delay.
7.2. The Customer is solely liable for the use it wishes to make of the Products. Thus it falls to the Customer and to the Customer alone to assess the risks linked with using the Products and to carry out the necessary tests and analyses beforehand for the use it wishes to make thereof. The Customer shall be solely liable for this use and in this connection, for complying with all the regulations that apply. It undertakes to hold our Company harmless against any claim or recourse from a third party in connection with the use it has made of the Products.
8. WARRANTY – LIABILITY
8.1. Our Company is answerable for the conformity of the Products with the specifications provided by the Customer. In case of any Product non-compliance arising from duly proven faults or omissions on the part of our Company, we undertake solely to replace the said Products within 30 days.
However, our Company’s liability may not be incurred for defects, omissions or damage arising from errors contained in documents or information provided by the Customer.
8.2. It falls to the Customer alone, in its capacity of professional to check that the properties and features of the Products enable them to be used in the conditions and for the purpose it intends for them. Taking account of the nature of the Products, this verification must be carried out by means of the Customer conducting tests. These properties and features are stated in the test certificates forwarded by our Company.
As an essential condition of sale, the Customer is reminded that it is solely liable for the use it may make of the Products, for their being fit for this use and purpose (including where it is stated in the said Products’ test certificates prepared by our Company); the fact for the Customer of having forwarded specifications or a set of specification documents to our Company or of having informed our Company of this use and purpose does not transfer the burden of this liability onto our Company.
In particular, the Customer is solely liable for:
- satisfying itself that the Products are compatible with the equipment, materials and products with which they are to be in direct or indirect contact,
- carrying out all tests, analyses, clinical trials beforehand,
- obtaining all necessary authorisations to use and market the Products,compliance, both by itself and by its authorised representatives or by any third party to which it may pass on the Products, with all applicable regulations and precautions for use in terms of storage, handling, use and marketing of the Products, in particular with the rules applying to matters of labelling, health and safety, and respect for the environment.
8.3. The liability of the Company may be incurred only in the event of proven fault.
Our Company’s liability, all heads of claim taken together, shall not exceed €1,000,000 per year.
Indirect (consequential) losses suffered by the Customer are excluded from all claims for compensation. Consequential losses are defined as, but not limited to, internal disorganisation and lost time, loss of jobs, contracts or customers; loss of opportunity, harm caused to reputation or brand image, penalty charges or compensation imposed on the Customer by contract, and any claim brought by any third party whomsoever against the Customer.
9. INTELLECTUAL PROPERTY
Our Company shall retain exclusive ownership of:
the technology and know-how, patented or not, and all rights to the industrial and intellectual property developed by our Company and, as the case may be, its subcontractors, in the context of carrying out an order or a contract, even if the Customer has participated in their development in any manner whatsoever,
all intellectual property rights over the research, studies, tests, analyses, drawings, designs, prototypes, photos and all technical documents it has produced, even at the Customer’s request, all such documents being required to be returned to us on first request.
Our Company grants the Customer a right to use the said technology, know-how or rights only, in consideration for actual payment in full of the price agreed.
Similarly, all the tooling having served in the manufacture of the Products remains the property of our Company, even if the Customer has participated in development thereof in any manner whatsoever.
All documents and information delivered or transmitted by our Company to the Customer during the consultation or in the course of carrying out the order or contract must be treated as CONFIDENTIAL, since they are part of our Company’s know-how. In addition, it is understood that these documents may not be disclosed to any persons other than those who strictly have a need of access thereto within the framework of carrying out the order.
Thus the Customer agrees not to reproduce, operate or disclose the said information, research studies and documents, without our Company’s express prior written authorisation, failing which we shall sue for damages.
10. FORCE MAJEURE
Cases of strikes, lock-out, flooding, fire, disruption to or interruption of transport, difficulties in sourcing supplies of raw materials or energy, major accidents impacting the production of suppliers, the court-ordered corporate reorganisation or judicial liquidation thereof, accidents of all sorts impacting on storage of the Products, epidemics and/or pandemics and, generally, any event outside the control of our Company and which is not attributable to a fault on its part having the effect of preventing or delaying the production, services, supply or delivery of the Products, constitute cases of force majeure which relieve our Company of any obligation to carry out the orders and pay compensation, penalty charges for delay or damages.
As soon as such an event occurs, our Company shall notify the Customer thereof in writing and the scheduled performance periods are extended by the duration of the event as a matter of law.
If the case of force majeure persists for more than three (3) months, either party may cancel the order by registered letter with return receipt, cancellation being acquired by operation of the law fifteen (15) days after the registered letter is first presented. In the event, the portion of the order already performed shall be acquired by the Customer, in consideration for payment of the price, and the Customer undertakes to refund our Company in respect of the costs it has incurred in carrying out the order.
11. PERSONAL DATA
During their contractual relations, the Parties are required to collect personal data from the other Party, such processing being indispensable for the performance of their respective obligations. Therefore, each Party undertakes to comply with the regulations relating to the protection of privacy and in particular the European Data Protection Regulation of 27 April 2016 (« GDPR »). This information and personal data must be kept securely for as long as necessary for the performance of the contract and any applicable guarantees. Access to such personal data shall be strictly limited to the employees of the data controller of each Party who are entitled to process them by virtue of their position. The information collected may possibly be communicated to subcontractors for the performance of subcontracted tasks; the latter must undertake to comply with the GDPR under the same conditions. Apart from the cases set out above, the Parties shall refrain from selling, renting, transferring or giving third parties access to the data without the prior consent of the other Party.
12. GOVERNING LAW – DISPUTES
These general conditions and the sales and services they govern are subject to French law to the exclusion of all other local, industry-wide or business practice.
ANY DISPUTE ON THE SUBJECT OF THE APPLICATION OF THESE GENERAL CONDITIONS, THEIR INTERPRETATION, PERFORMANCE AND THE CONTRACTS AND ORDERS AGREED BY OUR COMPANY PURSUANT TO THESE GENERAL CONDITIONS, SHALL BE BROUGHT BEFORE THE COMMERCIAL DIVISION OF THE COURT IN LYON, EVEN IN CASE OF URGENT PROCEEDINGS, MULTIPLE DEFENDANTS OR ACTION TO ENFORCE A THIRD-PARTY WARRANTY.
These general conditions are drafted in French. Where translated into another language, the French version alone shall prevail.