1. Order Placements and Application of the General Conditions of Sale
Orders become definitive only once we have accepted and confirmed them. Placing an order implies the customer’s full and unreserved adherence to our general conditions of sale, excluding any other document whatsoever. Our catalogues and flyers are provided solely for guidance and our general conditions of sale may be waived solely by written agreement between the parties. Customers are considered as having accepted all the terms of agreed orders unreservedly and irrevocably if they fail to object within 8 calendar days of either receiving an acknowledgment of receipt of the order or of the customer taking charge of the product if this occurs before receiving this document or in the absence thereof. Taking charge of the product takes place upon the handover or collection thereof at our plant or warehouse.
2. Sale Terms
The prices charged are those applicable on the date when the customer takes charge of the product. Deliveries are made according to our availability. Unless explicitly agreed otherwise, our delivery timescales are provided solely for guidance and without guarantee, so WE CANNOT BE HELD LIABLE ON THIS BASIS. No product returns will be accepted without our prior written agreement. In the event of an ex-works sale, we shall be obliged to deliver solely at the plant or warehouse concerned.
3. Events of Force Majeure
The occurrence of a case of force majeure shall exempt us from all contractual liability within the limits of the effects thereof. The following shall contractually considered as events of force majeure without any right of recourse for the customer: incidents and/or accidents affecting the production or storage of our products, total or partial interruption of supplies of raw materials or energy, carrier defaulting, fire, natural phenomena, machinery breakdown, decisions by the authorities, changes of regulations, act of third parties, war, labour disputes (including parties’ internal disputes), notably strikes, transportation disturbance and government action. We shall have no obligation to procure products from alternative sources. If such events last more than three months, we shall be entitled to terminate the contract.
4. Receipt and Complaint
We guarantee that the products sold to customers comply with our technical specifications. Customers undertake to read our technical specifications before using the products. We disclaim any other explicit or implicit liability, notably in respect of commercialisation, suitability for a specific use and results based on the use of products (non-exhaustive list). Customers bear all risks arising from the use of products, whether they are used on their own or in combination with other products, and will be liable for direct and indirect prejudice resulting from the use thereof. On the strict condition that the customer has preserved all recourse against third parties, any complaint against us will be valid solely if made within 30 calendar days of receipt of the products, reduced to 8 calendar days for liquid and gas products, subject to the same condition. If a customer makes a complaint on time and, after a joint examination, it is acknowledged as justified, we shall be obliged solely to replace or reimburse the product that is the subject of the complaint. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TOWARDS THE CUSTOMER FOR INDIRECT LOSSES AND/OR IMMATERIAL PREJUDICE, NOTABLY LOSS OF EARNINGS, OPERATING LOSSES, LOSS OF PROFIT, LOSS OF COMMERCIAL OPPORTUNITY, INCREASE IN OVERHEADS OR REDUCTION IN EXPECTED SAVINGS, EVEN IF SUCH LOSSES, INCREASES AND/OR REDUCTION WERE PREDICTABLE. ANY REPLACED OR REIMBURSED PRODUCTS MUST BE RETURNED TO US AND THE CUSTOMER MUST PROVIDE ALL PROOF OF THE REALITY OF THE DEFECTS OR FAULTS OBSERVED AND PERMIT THE VENDOR ALL MEANS TO ASCERTAIN SUCH DEFECTS OR ANOMALIES.
5. Payment Defaulting
entail, ipso jure and without any prior formal notice, (i) the application of default interest at three times the legal interest rate for the period from the day after the due date to the date when payment is actually made, as well as (ii) the application of a lump sum equal to forty (40) euros for recovery costs (without prejudice to the right to claim further compensation in case recovery costs would exceed such amount).
i/ In the event of non-payment of an invoice or a draft or failure to accept a draft, we shall be entitled, without any prior formal notice, to:
- Cancel the order;
- Suspend or terminate, as we choose, all current contracts unless products are paid for in advance;
- Refuse, as we choose, any subsequent orders or make the acceptance thereof subject to payment in advance.
ii/ In the event of a serious deterioration in the customer’s financial position or in the country where the customer is based, winding-up or change in the legal or de facto control of the customer, we reserve the right to obtain payment in advance or immediate payment of any current or future orders.
In both cases (i/ and ii/), we shall be entitled to apply to the courts for protective measures, which the customer accepts in advance and undertakes to refrain from challenging.
6. Receipt of payments
Unless otherwise agreed, payments must be made by bank transfer and does not entail any waiver of recourse on the customer’s part. Unless otherwise specified on the invoice, no discount is granted in the event of early payment.
7. “REACH” Regulation
We manufacture, import and market products in compliance with Regulation 1907/2006/EC (“REACH” Regulation). The uses identified in the Safety Data Sheets (SDSs) that are applicable to the products within the meaning of the REACH Regulation will not be equivalent to agreement between the parties on the technical and commercial specifications of the products or on a specific application. Customers are responsible for the implementation of products once they take charge thereof. Within the framework of the REACH Regulation, customers must notably ensure that the conditions in which they are to be used comply with those described in the SDS. In the event of transported isolated intermediates as defined in the REACH Regulation, customers must, prior to the sale, certify in writing that they comply with the conditions stated in Article 18 of the Regulation. WE CANNOT BE HELD LIABLE IN THE EVENT OF ANY INCORRECT AND/OR UNLAWFUL USE OF ANY OF OUR PRODUCTS OR IN THE EVENT OF THE IMPOSSIBILITY OF FULFILLING OUR OBLIGATIONS OR A DELAY THEREIN IF SUCH IMPOSSIBILITY OR DELAY RESULTS FROM COMPLIANCE WITH STATUTORY OR REGULATORY OBLIGATIONS IN RELATION TO AN APPLICATION OF THE REACH REGULATION.
8. Reservation of Ownership
THE PARTIES EXPLICITLY AGREE THAT SOLD PRODUCTS REMAIN OUR PROPERTY UNTIL WE RECEIVE PAYMENT OF THE PRICE IN FULL. IN THE EVENT OF PAYMENT VIA NEGOTIABLE INSTRUMENTS, PROPERTY WILL BE TRANSFERRED TO THE CUSTOMER ONLY ONCE SUCH BILLS HAVE BEEN PAID IN FULL. HOWEVER, WE AUTHORISE THE CUSTOMER, UPON DELIVERY, TO CARRY OUT ALL TRANSFORMATION OR SALE OPERATIONS IN RELATION TO SUCH PRODUCTS, THOUGH IT IS EXPLICITLY AGREED THAT EVEN IN THIS CASE WE RETAIN THE RIGHT TO CLAIM SUCH PRODUCTS IRRESPECTIVE OF THE CONDITION OR HOLDER THEREOF OR TO CLAIM THE PRICE IN THE EVENT OF RESALE. MOREOVER, UPON DELIVERY, THE CUSTOMER SHALL BE RESPONSIBLE FOR CUSTODY OF SUCH PRODUCTS AND SHALL BEAR ALL RISKS WITH RESPECT TO US AND THIRD PARTIES. CONSEQUENTLY, CUSTOMERS SHALL BE BOUND BY THEIR OBLIGATIONS AS CUSTODIANS AND MUST TAKE OUT AN INSURANCE POLICY REFERRING TO OUR STATUS AS THE OWNER AND COVERING PREJUDICE SUFFERED OR CAUSED BY THE PRODUCTS.
9. Power of Jurisdiction and Governing Law
ANY DISPUTES OVER ORDERS SHALL COME WITHIN THE EXCLUSIVE JURISDICTION OF THE COURTS OF NANTERRE (HAUTS DE SEINE, FRANCE). UNLESS SPECIFICALLY PROVIDED OTHERWISE, FRENCH LAW WILL BE THE SOLE GOVERNING LAW. SHOULD CUSTOMERS BE SUMMONSED BY ANY THIRD PARTY BEFORE ANOTHER COURT, THEY HEREBY UNDERTAKE NOT TO BRING ANY GUARANTEE CLAIM AGAINST US BEFORE THE CONCERNED COURT. THE PARTIES EXPLICITLY DECLINE TO APPLY THE UNITED NATIONS VIENNA CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS OF 11TH APRIL 1980. IN CASE OF CONFLICT BETWEEN THE FRENCH VERSION OF THE GENERAL CONFDITIONS OF SALES AND A TRANSLATED VERSION, PARTIES ADMIT THAT THE FRENCH VERSION
10.1 If we bear the carriage expenses
We select the carrier in good faith BUT WE CANNOT BE HELD LIABLE FOR OUR SELECTION OR FOR THE PERFORMANCE OF THE CARRIAGE SERVICES. In the case of international sales, our products are consigned in the manner agreed with the customer, possibly on the basis of the definitions published in the latest incoterms edition. Irrespective of the
means of transport concerned and even after the order is placed, we reserve the right to pass onto our customers, automatically and ipso jure, any fuel surcharge imposed by our carriage service providers.
Specific case of road and rail tankers: the net weight invoiced shall be the weight acknowledged by weighing on departure and shown on the scale tickets. We will bear the cost of hiring road vehicles and rolling stock for a round trip and parking for 2 hours (for road tankers) and 48 hours (for rail tankers) at the customer’s plant. We shall be entitled to charge the cost of any additional period of unavailability.
Specific case of ships and barges (liquid, solid and gaseous products): the net weight invoiced for products shipped in bulk shall be the weight acknowledged at the port of departure for incoterms in the “F” and “C” families and entered on the bill of lading. For incoterms in the “D” family, the net weight invoiced for products shipped in bulk will be the weight acknowledged in writing by an independent inspection company at the place of delivery.
10.2 If the customer bears the cost of carriage
Any chartering of ships and/or barges will be subject to our own vetting rules. Consequently, we reserve the right to reject, without any compensation, certain ships and/or barges and to demand the use of ships or barges that comply with our vetting rules.
10.3 Specific case of transportation packaging and equipment provided for carrying and storing our products.
The provisions below solely concern re-usable transportation packaging and equipment. Transportation equipment notably refers to small containers, tankers and units for transporting packaged products. If our products are delivered to the customer in reusable transportation packaging and equipment, such packaging and equipment must be exclusively intended for the storage of the delivered products. The customer must maintain such packaging and equipment in good condition. Accordingly, such packaging and equipment must be handled, drained, discharged and prepared for return according to professional standards and/or our specific recommendations. For the return of such packaging and equipment, the customer must take all necessary steps as the loader and consignor to comply with all operative regulations, notably those applicable to carriage. The customer must return such packaging and equipment to the address agreed between the parties within a period previously agreed between us or, otherwise, once they have been emptied. If such packaging and equipment are returned by sea, the customer must choose shipping previously selected by us. The following provisions will apply after the above-mentioned period: (i) the customer must pay us compensation equal to the total expenses that we have to bear as a result of the unavailability of the containers (hire, administrative costs, etc) plus 10%; (ii) this compensation will apply until the transportation packaging and/or equipment is/are returned to the agreed addressee; (iii) after a period of twelve months counting from the product being made available, we reserve the right to refuse the return of the container concerned and to apply the provisions of clause iv; (iv) in the event of the loss, destruction and/or failure to return transportation packaging and/or equipment, we reserve the right to claim the cost of our acquisition of replacement transportation packaging or equipment, plus redress for all expenses resulting directly or indirectly from such replacement, from the customer; (v) any compensation paid shall be definitively retained by us, ipso jure, in all cases; (vi) carriage, repair and replacement costs for transportation packaging or equipment shall always be borne by customers and they shall be liable for any damage thereto or destruction thereof.
10.4 Transferred packaging
If packaging becomes the property of customers, they undertake to eliminate it via approved processing channels and, in the event of reuse, to remove all references thereon to the previous owner. The customer is fully liable for the consequences of eliminating or reusing such packaging.
10.5 Packaging supplied by the customer
The customer is fully liable for the choice and quality of the packaging to be used for the products and undertakes to supply packaging that complies with the operative regulations and the vendor’s requirements.
These General conditions of sales are also available in several languages on the ARKEMA website: http://www.arkema.com/salesconditions
© GROUPE ARKEMA MAI 2009