General Terms and conditions of sale
ARTICLE 1: OPPOSABILITY OF THE GENERAL TERMS AND CONDITIONS OF SALE
By signing at the end of these general terms and conditions of sale (GTCS), the customer hereby acknowledges to have read and agreed to them unconditionally. The GTCS are therefore binding between the parties to the exclusion of any other documents, including prospectuses and catalogues, issued by the seller solely for information purposes.
The customer may receive a special warranty. In this case, and provided that the contractual document setting the terms and conditions of the warranty has been signed, the warranty shall be applicable in addition to the warranties provided for in the GTCS.
The buyer may not amend this agreement, unless the amendment has been countersigned and expressly agreed to by the seller.
The fact that the seller does not avail itself of one of the provisions of the GTCS shall not be construed as a waiver of the other contractual provisions.
ARTICLE 2: PURPOSE
The GTCS set forth the rights and obligations of Sommer Needlepunch and its customer in the context of the sale of goods.
Any services performed by Sommer Needlepunch therefore require the buyer’s unconditional acceptance of the GTCS.
ARTICLE 3: ORDERS
Orders with Sommer Needlepunch must be placed in writing, i.e., via e-mail, fax or post. All orders shall be confirmed by Sommer Needlepunch in writing.
This confirmation shall have no contractual value other than for the quantities and reference numbers of the products ordered. The prices shall be indicated solely for information purposes, as the customer may receive a special price or volume discount.
The instructions given by the seller’s agents shall in no way be binding for Sommer Needlepunch, unless the Company confirms them in writing.
The order confirmation may be contingent on whether the customer has any overdue balance.
In the event that the buyer requests that an order be modified or cancelled, the request may only be taken into account if it is received prior to the shipment of the order or the manufacture of any customised products or custom-cut materials.
In all other cases, the buyer shall be required to pay for the entire order.
ARTICLE 4: PRICES
The prices of the goods sold are those in effect on the date on which the order is placed. They are expressed in euros or in any other currency approved by the parties and calculated excluding tax based on the applicable legislation in force at the time of delivery.
The prices of the goods may increase based on the terms of delivery and the incoterms selected.
Prices may be modified at any time without notice. However, Sommer Needlepunch undertakes to invoice the goods ordered at the prices indicated at the time the order is processed.
The price list can be found in the appendix to the GTCS.
Unit prices are provided to the customer upon request. The price list shall remain applicable unless a new rider signed by the customer is issued.
ARTICLE 5: DISCOUNTS
No discounts shall be granted in the event of advance payment.
ARTICLE 6: PAYMENT METHODS
Orders may be paid for by :
- Wire transfer;
- Bill of exchange;
- Debit card.
ARTICLE 7: DELIVERY
7.1. Terms of delivery
Products are either hand-delivered to the buyer or delivered via a shipper or carrier.
The buyer undertakes to collect the delivered products immediately. Failing this, any expenses incurred due to the non-collection of the goods, including safekeeping, storage and re-delivery fees, shall be the sole responsibility of the buyer and invoiced separately.
7.2. Delivery times
Deliveries are carried out solely based on the availability of goods (procurement, manufacture, etc.) and the availability of the seller. The seller is authorised to deliver goods together or separately.
Delivery times are stated in the special terms and conditions solely for information purposes. The seller shall not be liable for any failure to comply with the delivery times, nor the payment for any late fees.
Delivery times may be modified by Sommer Needlepunch in the event of certain situations, including, but not limited to, extreme weather conditions, such as snow or ice storms, or traffic obstruction due to strikes.
Sommer Needlepunch reserves the right to refrain from delivering the new goods ordered if the buyer has not met its contractual obligations for past orders, such as there being unpaid overdue invoices, or if the outstanding invoices exceed the internal credit limit set by the seller.
ARTICLE 8: DISPUTES
Any disputes regarding the characteristics, the type of goods provided and any apparent defects must be expressed in writing by registered letter with acknowledgement of receipt no later than eight days after the products are received, failing which the buyer shall be deemed to have accepted said goods.
The customer is deemed to have read the technical datasheets available on the website at www.sommer-sportsfloorprotection.com or upon request by contacting the sales department.
ARTICLE 9: RETURNS
Goods may not be returned unless the seller has given prior written consent.
ARTICLE 10: WARRANTY – LIABILITY
10.1. Apparent defects
Sommer Needlepunch is not liable for any apparent defects that the buyer could to have detected.
Inferior or second-rate goods sold expressly as such may therefore not be eligible for a warranty due to their quality.
10.2. Latent defects
Sommer Needlepunch shall be liable for latent defects existing at the time of delivery, in accordance with article 1641 of the French Civil Code (Code civil). However, it is expressly provided for that this warranty is not applicable to a professional buyer in the same specialty field.
The manner in which the material has been used shall be taken into account. Sommer Needlepunch shall not make any warranties in the event that the material was used in a manner not indicated in the technical datasheet.
The latent defect warranty is not applicable in the event of:
- The buyer’s inaccurate assessment of its needs;
- The material being used or maintained in a manner that does not comply with the seller’s recommendations;
- Use of the product that does not comply with accepted practice.
Inferior or second-rate goods sold expressly as such may not be eligible for a warranty due to their quality.
It is expressly provided for that defects in the goods sold according to the contractual requirements shall only be resolved through Sommer Needlepunch’s replacement of the goods. The above situation shall not result in the termination of the contract or compensation for damages for any reason whatsoever, including, but not limited to, for economic loss, costs related to the assembly and disassembly of fixtures and fittings, partitions or furniture, and handling and set-up costs.
Sommer Needlepunch must be informed of any defect in the goods sold no later than eight days as from the delivery date. Failing this, the warranty covering non-contractually compliant goods may not be claimed and the buyer shall be deemed to have unconditionally accepted the goods sold.
ARTICLE 11: TRANSFER OF OWNERSHIP – TRANSFER OF RISK
11.1. Transfer of ownership
The seller retains ownership of the goods sold until the payment of the full purchase price is received. Under the terms of this clause, the issue of a negotiable instrument (such as a bill of exchange or other document) is not to be considered as payment. Failure to pay any of the invoices due may result in the goods being repossessed.
11.2. Transfer of risk
The transfer of risk, in particular that of the loss or deterioration of the goods sold and any resulting damage, takes place when the products are delivered, as defined in article 7.1. However, it is expressly specified that the buyer undertakes to insure said goods for their full market value up until the date of transfer of ownership, as stated in article 11.1.
The products and their packaging are therefore transported at the buyer’s risk, regardless of the terms and conditions of sale. In the event of damage or any missing items, the buyer is responsible for safeguarding its rights vis-à-vis carriers, in accordance with the law, including articles L.133-3 et seq. of the French Commercial Code (Code de commerce).
11.3. Seller's right to carry out an inventory of goods
Until such time as the buyer’s full payment of the purchase price, the seller may at any time carry out an inventory on the buyer’s premises to verify the actual presence of the seller’s goods.
ARTICLE 12: INVOICING
The seller shall invoice the buyer for each sale, it being specified that the buyer accepts to be invoiced separately as the products are delivered.
Each invoice is established based on the actual delivered yardage, as opposed to the theoretical size ordered, up to a limit of 20% with respect to the latter.
The invoice date corresponds to the shipment date, which marks the beginning of the agreed upon payment period. The payment period and due date are expressly stated on the invoice.
ARTICLE 13: PAYMENT TERMS AND PENALTIES
All goods are deemed payable in cash as from the invoice date. The seller is not required to maintain any flexible payment terms granted to a buyer. If a sale involves one or more deliveries, failure to pay for any of them or refusal to accept the bill of exchange may result in, ipso jure, the immediate termination or cancellation of the sale.
The buyer’s failure to pay any one invoice shall result in the buyer being required to pay the full amount due in respect of all orders, including orders that originally had a later payment due date.
Any amount unpaid after the set due date shall, ipso jure and without prior notification, bear interest at a rate equal to the refinancing rate applied by the European Central Bank, plus 10 percentage points. The seller reserves the right to decide whether or not to invoice late-payment interest.
Any rebates granted are only redeemable following the end of the reference period and the normal, agreed upon payment due dates of all of the goods eligible for such rebates. Rebates can either be credited to the buyer’s account or directly paid, at the seller’s sole discretion.
Failure to pay by the due date shall result in the postponement of delivery. Delivery shall not resume until the amount due and any related late-payment interest have been paid in full.
In case of failure to pay, the seller may, for example, take action against the buyer to settle the payment, cancel the sale and request the return of the products, without prejudice to any other compensation or damages. The products shall be returned at the buyer’s expense.
In the event of late payment, the buyer is subject to a flat-rate payment as compensation for recovery costs. In accordance with articles L.441-6 and D.441-5 of the French Commercial Code, the fee is €40. The seller reserves the right to decide whether or not to invoice it.
In the event that the buyer’s financial position worsens, to the point that the seller’s receivable is compromised, the seller reserves the right to suspend or cancel the outstanding orders and may also require security or advance payment. The outstanding orders shall remain on hold until the security or advance payment has been received.
Payment shall always take place at the registered office of the seller even if a credit has been granted by the seller or if the payment is the result of a court order against the buyer.
ARTICLE 14: CONFIDENTIALITY
The buyer undertakes to treat as confidential any information that it had, has or will have access to during the negotiation and execution of the orders.
If the buyer fails to comply with this requirement, proceedings may be initiated against the buyer for the award of compensatory damages to Sommer Needlepunch.
ARTICLE 15: MANUFACTURING TOLERANCES
Manufacturing tolerances must be allowed for in all cases. These tolerances vary depending on the type of floor covering, as each has its own standards and specifications.
In addition, colour differences in one manufactured batch to another or in a sample to a manufactured product must be tolerated and are not covered by any warranties.
The seller reserves the right to modify products in line with technical developments.
ARTICLE 16: IMPORTS
All the conditions applicable to goods when they are imported to the contractually-agreed on territory or place of delivery are deemed fulfilled once the purchase confirmation has been sent. From such time onwards, the risk of the imported goods being refused by customs officials or other authorities is transferred to the buyer, who assumes full responsibility.
ARTICLE 17: FORCE MAJEURE
Cases of force majeure include, in addition to those generally recognised by French case law, any manufacturing impediments due to procurement issues, shortages of labour and materials, labour strikes and disruptions in transport.
A more than 5% increase in the cost of raw materials since the confirmation of a given order also constitutes a case of force majeure.
These events shall be considered as constituting force majeure, even if they do not have an unforeseeable, uncontrollable or unsurmountable nature that characterises legally-recognised force majeure events.
In an initial phase, cases of force majeure shall suspend the contractual obligations upon receipt of a registered letter with acknowledgement of receipt from either party.
If a case of force majeure lasts for a period of more than six months, the sale may be cancelled by either party by registered letter with acknowledgement of receipt. In this case, the cancellation shall be completed without either party being able to request compensation for damages.
ARTICLE 18: DECLARATION OF INSOLVENCY
In the event of insolvency, receivership or bankruptcy, the buyer undertakes to inform the seller immediately by registered letter with acknowledgement of receipt. The above shall also apply in the event that a special representative is appointed on behalf of the buyer.
ARTICLE 19: NON-ENFORCEABILITY OR INVALIDITY OF A CLAUSE
It is expressly agreed between the parties that if one or more clauses of the GTCS were considered to be invalid or unenforceable or declared as such in accordance with a law, regulation or following the final decision of a competent court, the other clauses would remain valid and enforceable.
ARTICLE 20: GOVERNING LAW
The execution and interpretation of the general terms and conditions of sale are governed by French law, with the exclusion of the provisions of the Vienna Convention of 11 April 1980 on Contracts for the International Sale of Goods.
ARTICLE 21: COMPETENT JURISDICTION
Any dispute regarding the GTCS and/or the contractual relationship shall fall under the exclusive jurisdiction of the Commercial Court of Greater Lille, unless the seller exercises its right to waive the jurisdiction of said Commercial Court.
ARTICLE 22: LANGUAGE OF THE GTCS
The GTCS have been drawn up in French and English. If any discrepancies exist between the two versions, the French version shall prevail.
ARTICLE 23: ADDRESSES FOR SERVICE OF PROCESS
The parties elect their registered offices as the address for service of process.