THE FOLLOWING GENERAL CONDITIONS OF SALE apply to all sales and sales offers of products (the « Products ») commercialized by UNIPEX SOLUTIONS FRANCE S.A.S. (« Unipex »), all purchase orders of Products placed by a client of Unipex (the « Buyer »), and generally all business relations between the Buyer and Unipex, unless specified otherwise in writing by Unipex to the Buyer.
Unipex reserves the right to modify these General Conditions of Sale at any time subject to prior notification given to the Buyer.
1 – ORDER: Any order of Products implies the irrevocable acceptance, without reserve, by the Buyer of these General Conditions of Sale. These General Conditions of Sale supersede any other document from the Buyer, including without limitation any other general conditions of purchase or purchase orders. Any document originating from Unipex other than the present General Conditions of Sale, inclu ding without limitation catalogues, leaflets, advertising inserts and notices, has only an informative and indicative value, not a contractual value.
Any order of Products by the Buyer may be verbal or written. In the event of a dispute, the burden of proof of such order sha ll be borne by the Buyer.
No contract shall be deemed entered into until an order has been accepted in writing by Unipex. However, an order will be deemed accepted by Unipex (i) in the absence of a written refusal from Unipex within five (5) days following reception of the order or (ii) upon delivery of the Products subject to such order.
Should an order presents unusual characteristics, including without limitation an excessive financial risk, or comes from a Buyer who has not accomplished all its obligations resulting from past businesses, or has not been loyal to Unipex or has acted contrary to commercial usage, Unipex reserves the right to refuse the order or, at its discretion, to subject its acceptance to specific conditions appropriate under the circumstances.
Unless otherwise stipulated in writing, Unipex reserves its right to reconsider the acceptance of an order in the event of a modification in the regulations in effect at the time of the acceptance of the order and affecting the conditions governing the execution of the offer, such as changes in the foreign exchange rates, internal or foreign taxes, including without limitation tax withholdings, compensatory payments, equalization taxes, customs duties, variable components or anti-dumping, etc, as well as in the event of modifications in the French or foreign customs regulations.
The Buyer cannot cancel an order already accepted by Unipex. In such event, the order will remain payable by the Buyer to Unipex.
2 – PRICE: Taxes are not included in the prices.
Unipex reserves the right to modify the prices of the Products at any time subject to prior notif ication given to the Buyer, such modifications being effective immediately.
For Products shipped outside of France, the Buyer is responsible for all taxes, duties and supplementary charges originating from outside the French territory.
3 – PRODUCTS: Unipex and/or its suppliers may, subject to the applicable regulations, make modifications that they deem useful or necessary to the Products.
The Buyer has to obtain a written confirmation signed by a duly authorized representative of Unipex for any specificati on or element relating to the Products which the Buyer regards as substantial.
The Buyer will be responsible for the management of the expiration dates of the Products and under no circumstances shall Uni pex be held responsible.
4 – DELIVERY TERMS: The Buyer will be responsible for all transportation and insurance expenses. The unloading of the Products at the destination site is exclusively under the care and responsibility of the Buyer, whatever assistance the carrier may bring to the unloading operations.
The delivery dates provided to the Buyer are only for indicative purposes. Unipex shall use its best efforts to meet them, su bject to the Buyer’s compliance to the payment terms and more generally to its obligations under these General Condition s of Sale. In no event shall delays in delivery result in any penalty, indemnity, damages, refusal to take delivery of the Products, cancellation of outst anding orders or non-payment of the sums due to Unipex by the Buyer.
Any modification to outstanding orders must be accepted in writing by Unipex and will delay the delivery date communicated by Unipex to the Buyer.
If the Buyer refuses to take delivery of an order, Unipex shall have the right to store the Products in a warehouse at the Bu yer’s expenses and to claim the reimbursement of all expenses related thereto. Without limiting any other rights or remedies that Unipex may have against the Buyer, if the Buyer fails to take delivery of the Products within one week after the Products are made at the Buy er’s disposal, Unipex shall be entitled to terminate the contract and/or to resell the Products and to claim payment from the Buyer for the difference between the price invoiced to the Buyer and the resale price of the Products, along with any expenses or d amages of any kind arising out of or in connection with the termination of the contract.
5 – QUALITY CONTROL OF THE PRODUCTS: The Buyer is responsible to inspect and verify the Products delivered to him and to make the quality control thereof.
In case of problem with the quality of the Products, the Buyer must:
-Report his complaints and reserves to the carrier on the delivery slip which shall be signed and dated by the Buyer; -Notify the claim to Unipex by registered mail with acknowledgment of receipt within 3 days of receipt of the Products; and -Return the defective Products to Unipex in their original condition, after receipt of the written approval from Unipex and in accordance with Unipex’s instructions, at the expenses and at the risk of the Buyer.
The Buyer will lose any deposit paid on Products returned to Unipex without complying with the above-mentioned procedures.
Claims submitted by the Buyer pursuant to this Section 5 will not release the Buyer from its obligations to pay the relevant Product s or entitle him to suspend or delay the payment thereof.
6 – WARRANTY: Unipex’s suppliers warrant the Products for a period of time specific to each Product, within the limits set forth below. The warranty specifically excludes the warranty for latent defects, except for defects which Unipex was aware of.
The warranty is limited to the replacement of any Product recognized as being defective by Unipex or its supplier, excluding any other remedy, damage or compensation whatsoever. To be admissible, a claim shall be made in writing and detailing precisely the alleged defects. The Buyer will provide Unipex, its supplier or its agent with full access so as to verify the defects and, as the ca se may be, correct them. Unipex or its supplier will not act in response to a complaint from the Buyer, on any or all Products, for whatever reason, if the merit of the claim is not expressly recognized in writing by Unipex or its supplier.
A claim brought by the Buyer does not, under any circumstances, release the Buyer fro m its obligations to pay the relevant Products or entitle him to suspend or delay the payment thereof.
Unipex or its supplier cannot guarantee the suitability of the Products for any use other than, as the case may be, the use U nipex or its supplier recommends in writing and which appears on the material safety data sheet and/or any other notice attached to the Products and thus Unipex or its supplier shall not be held responsible for any consequences resulting from the inappropriate use of th e Products or their use in a manner that is not complying with safety or commercial usage. Except as otherwise specified in writing by Unip ex or its supplier, as set forth in Article 3 herein, it is the Buyer’s responsibility to ensure that the Products are suitable for the intended use thereof by the Buyer. In this respect, the Buyer undertakes to comply with the health, safety and/or environmental protection measure s set forth, as the case may be, in the material safety data sheet and/or any notice attached to the Products.
7 – LIABILITY: In the event that Unipex fails to perform or otherwise breaches its obligations under these General Conditions of Sale, Unipex’s liability will be limited to the direct loss or damage suffered by the Buyer, excluding without limitation loss of earnings, operating losses, loss of profits or enjoyment or increase in costs and expenses (including any fees or payment of damages), as a result of such non-performance or breach. Nothing herein shall limit Unipex’s liability for bodily injury arising out of its negligence.
Unipex shall not be responsible for any damage, including operating losses, loss of profits or loss of earnings resulti ng from the Buyer’s non-compliance to the applicable laws and regulations concerning the use of the Products, the unsuitable or inappropriate use of the Products or any other reason whatsoever.
The Buyer shall indemnify and hold Unipex harmless from and against any and all liability, damage, loss, cost or expense resulting from any abnormal, improper or non-compliant use of the Products, any violation of these General Conditions of Sale or any fault or negligence of the Buyer including without limitation inappropriate storage of the Products or the use of the Products in conditions or for purposes other than those for which they are intended.
8 – CONDITIONS OF PAYMENT: Invoices are payable net 30 days to Unipex by cheque or wire transfer. Invoices are payable at Unipex’s head office at the address set forth on the invoice.
An invoice is deemed paid when the funds are fully available to Unipex. Thus, the handing-over of a cheque is not regarded as a payment within the meaning of these General Conditions of Sale, only its actual deposit in Unipex’s account and full availability to Unipex will be deemed a payment. In case of partial deliveries, invoices are payable with respect to each delivery made until an order is co mpleted.
Non-payment of any invoice upon its due date, including partial deliveries, shall render all amounts owed by the Buyer to Unipex due immediately, plus a late payment charge equal to 3 times the legal interest rate calculated from the day after the due date o f the invoice and payable upon demand, at Unipex’s discretion. Unipex also reserves the right to claim, upon demand, the repayment of the collection costs incurred in collecting the amount due to him through legal proceedings or any other means.
Unipex will also be entitled to automatically suspend, without any formality, the execution of outstanding orders, to set off any amount due to him against the remaining amounts due to the Buyer, to demand cash payment of any order and/or request sufficien t guarantees. Refusal to comply will entitle Unipex to cancel any or all outstanding orders, without penalty of any kind, and to declare th e balance of any outstanding order or any subsequent order as being automatically cancelled, without any formality an d without limiting any other right or remedy Unipex may have.
9 – FORCE MAJEURE: If an event of Force Majeure occurs, Unipex shall promptly notify the Buyer in writing, including by fax or e-mail, of the occurrence of such Force Majeure, the contract between Unipex and the Buyer being suspended without compensation as from the date of occurrence of such event.
Should the event of Force Majeure continue for more than 30 days from the date of its occurrence, the contract entered into b etween Unipex and the Buyer may be terminated by Unipex, without the Buyer being entitled to the award of any damage or any other form of compensation or penalty.
Force Majeure includes without limitation strikes, including strikes affecting part of or all Unipex’s employees or its carriers or other usual agents, fire, flood, war, production interruption due to unexpected breakdown, supply interruption or shortage of raw materia l, epidemics, embargoes or any other event independent of the will of Unipex preventing Unipex, its su ppliers or agents from performing their obligations hereunder.
10 – APPLICABLE LAW AND JURISDICTION: The parties undertake to submit any dispute, whatever the nature and notwithstanding any provision to the contrary, to the Tribunal de Commerce of Paris, France, even though there is plurality of defenders. If legal proceedings are commenced against the Buyer by a third party in another court, the Buyer waives, as of now, all rights to call Unipex in warranty before any other court than the Tribunal de Commerce of Paris, France.
Any dispute in relation with these General Conditions of Sale, their interpretation, their validity, their execution and thei r end, as well as the sales governed by them, are subject to the laws of France. The Buyer shall ensure that the resale of the Products is not contrary to the laws, regulations and standards of the country of their destination.
11 – RETENTION OF TITLE – TRANSFER OF RISK: Products shall remain Unipex’s property until payment (i) of the invoiced amount which is deemed paid when the funds are fully available to Unipex, as per Article 8 herein, (ii) of the applicable TVA and (iii) of all related accessories, such as late payment charges. Should the Buyer be in default of payment, in whole or in part, Unipex shall be entitled to retake possession of the unpaid Products by any available legal means.
Notwithstanding the foregoing, the transfer of risk to the Buyer occurs when the Products are handed over by Unipex to the ca rrier. Thus, Unipex shall not be responsible for any damages occurring during transportation, such as destruction, physical damage, loss or theft, even if the carrier was selected by Unipex.
12 – INTELLECTUAL PROPERTY: The Buyer acknowledges having full knowledge of the intellectual property rights of Unipex and/or its suppliers and undertakes to respect such intellectual property rights and to use them as strictly required and essential for the execution of the contract.
The Buyer does not hold any intellectual property rights relating to the Products. The Buyer shall not, at any time and for any reason whatsoever, modify the intellectual property rights relating to the Products, nor request or obtain any legal protection for any component of whatever nature in connection with the Products, including without limitation obtain a license or grant a sub-license in connection with the Products.
The Buyer shall promptly notify Unipex of any action or claim by a third party with respect to the intellectual property rela ting to the Products and of any infringement by a third party of the intellectual property relating to the Products and shall provide assistance in any proceedings which would be brought against third parties.
The Buyer shall cease from using the intellectual property rights relating to the Products at the end of the term of the contract with Unipex or at any time during the term of the contract, at Unipex’s demand if Unipex determines that it could infringe the int ellectual property rights or others rights of third parties.
13 – MISCELLANEOUS: Unipex’s failure to meet any of its obligations herein shall not constitute grounds for immediate termination of any relationship by the Buyer such as the cancellation of outstanding orders and/or cancellation of the sales of Products already delivered.
No failure by Unipex to assert any right under these General Conditions of Sale shall be deemed a waiver of such right for th e future or affecting the validity of any other provisions hereunder.
In carrying on its business, the Buyer shall comply with the laws and the regulations applicable in France and in the Europea n Union.
In the event that any of the terms or provisions under these General Conditions of Sale shall be deemed invalid or unenfo rceable, the other terms of these General Conditions of Sale shall continue in force unless the invalidity of such provisions does substan tial violence to or are otherwise inseparable from the remainder of these General Conditions of Sale.