General terms and conditions of sale LEHVOSS France (as of May 1st, 2016)
1. General remarks/Field of application
1.1 Any product order shall imply that the Purchaser accepts without reservation and fully complies with these general terms and conditions of sale, which shall solely govern all commercial relations between Purchaser and seller, and which shall prevail over any other document issued by the Purchaser, and in particular over any other general conditions of sale as previously specified by LEHVOSS France in writing, unless expressly agreed otherwise.
1.2 These general terms and conditions of sale shall apply to all product sales by LEHVOSS France, and shall moreover apply to future contracts under a continued commercial relationship. Consequently, the passing of an order by a customer shall imply that such customer complies, without reservation, with these general terms and conditions of sale, except for any particular conditions agreed upon in writing between LEHVOSS France and the Purchaser.
1.3 If LEHVOSS France does not take advantage of the application of any one of the clauses constituting these general terms and conditions of sale from time to time, this shall not be construed as a waiver by LEHVOSS France to exercise the related rights.
1.4 These general terms and conditions of sale shall only be applicable to natural and legal persons acting as contract partners under their commercial activities.
1.5 Any document other than these general terms and conditions, in particular any catalogues, brochures, advertising, notes, etc. shall only have an informative value, but no contractual status.
1.6 These general terms and conditions of sale shall render void and replace our previous terms and conditions of sale.
2.1 Any quotation issued by LEHVOSS France in any form (catalogue, brochure etc…) does not constitute an offer but an invitation to place an order.
2.2 A sales contract shall be deemed to have been definitely concluded after receipt of LEHVOSS France’s written order confirmation, or upon delivery of the goods if no such order confirmation is extended.
2.3 Purchaser's orders shall be regarded as binding and irrevocable, unless a modification made later on is accepted by LEHVOSS France.
2.4 Any modification to or cancellation of orders required by the Purchaser shall only be taken into account if such modification or cancellation is submitted to LEHVOSS France in writing before the date of shipment of the products.
3. Price / Payment conditions
3.1 Prices and price indications shall be in EURO, and without VAT, the VAT being applicable in addition to our price valid at the time of issuance of the invoice. For any order LEHVOSS France shall invoice the most recent rate applicable as of the date of the order confirmation or delivery.
3.2 In case an order cancellation is accepted by LEHVOSS France, a cancellation fee to the amount of 5 % of the order value shall be invoiced to the Purchaser.
3.3 Unless otherwise agreed in the order confirmation, the sales price shall be settled by bank transfer, cheques, signed and accepted bank draft or promissory note on the due date, as stated in the invoice.
3.4 The drafts and cheques shall always be credited subject to the purpose intended, and payment shall be deemed to be effected only on actual cash-in of such drafts and cheques. Until such time, the clause of reservation of ownership shall remain fully effective.
3.5 Any amount unpaid by its due date shall result in the Purchaser becoming liable to pay liquidated damages at the interest rate as utilised by the Central European Bank for its most recent refinance operation, plus 10 percentage points as well as a lump indemnity of 40 euros per unpaid invoice. In accordance with article L. 441-6 of the Commercial Code, the liquidated damages shall become due by law and without reminder. LEHVOSS France reserves the right to justify that it incurred a higher damage, and thus to any claims for additional damages to which LEHVOSS France is entitled.
3.6 LEHVOSS France reserves the right to carry out the delivery of goods depending on the state of advance payment of the invoices, to invoice partial deliveries as well as to suspend any delivery of goods still to be supplied, if such invoices have not been settled by their due date.
3.7 If milestone payments have been agreed between the contract parties, any delay in payment of the instalments agreed shall render the remaining instalments due immediately and by law, even though they have resulted in an emission of drafts.
3.8 Any complaint or claim laid by the Purchaser shall by no means have the effect that the payment of any amounts due to LEHVOSS France is postponed or suspended. The Purchaser shall have the right to lay claims for compensation only if the Purchaser is able to prove towards LEHVOSS France that it has an enforceable title.
4. Indications of product properties / Technical modifications
The descriptions of our products shall only be for information, and shall by no means constitute any commitment/warranty with regard to the properties of the goods. Any possible modification effected by us to our products with the aim of improving or preserving their value, shall be deemed to be fully admissible at any time and without prior written notice.
5. Scope of supply and delivery period
5.1 The scope of services and supplies shall be determined by the order confirmed in writing.
5.2 Unless agreed otherwise, the delivery dates and periods are specified for information only. LEHVOSS France's compliance with the delivery dates and periods requires that all commercial and technical issues have been settled between the parties, and that the Purchaser has fulfilled all the obligations transferred to it, such as obtaining the necessary certificates / authorisations, the settlement of the downpayment agreed as well as the placement of equipment orders in due time. In case these obligations are not fulfilled, the delivery period is extended consequently. The delivery date shall be deemed to have been complied with if the goods have been shipped or picked up before expiration of the delivery period or if the goods have been made available to the Purchaser on the respective date.
5.3 The Purchaser has been informed and accepted that if sub-suppliers of LEHVOSS France fail to supply within these periods, LEHVOSS France will not be able to comply with the delivery period.
5.4 In case contractual modifications are carried out later on, a new delivery period shall be fixed.
5.5 LEHVOSS France reserves the right to suspend the execution of its supplies in case the Purchaser fails to fulfil its own obligations within the periods agreed in accordance with the provisions of the contract, in particular as far as compliance with the agreed payment conditions is concerned. Moreover, LEHVOSS France reserves the right to invoice partial deliveries and to suspend the delivery of the remaining goods, if such invoices are not settled in due time.
5.6 If the Purchaser fails to pick up the goods within the periods agreed or if the Purchaser fails to comply with other obligations, LEHVOSS France reserves the right to claim compensation for damages or additional expenses, such as warehouse fees, resulting from such failure. The warehouse fees amount to 10 € without VAT per tonne of goods per day. Penalties of one per mille of the sales price per day of delay in the picking up of the goods will be due in addition. These penalties, which are limited to an amount of five per cent of the sales price, do not have a discharging effect and the right to assert compensation for additional fees shall remain. When a one month period has been exceeded, LEHVOSS France shall have the right to notify the Purchaser by registered letter with return receipt and require that it picks up the goods within an additional period for pick-up. The warehouse fees and the penalties will continue to run during this period. In case the goods have not been picked up after expiration of such extended period, LEHVOSS France shall have the right to dispose of the goods at its own discretion.
5.7 Any delay in delivery shall not be construed to be a good reason for rescinding from the contract, and unless expressly stipulated otherwise and properly accepted by LEHVOSS France, it shall not be possible to impose a contract penalty to LEHVOSS France. In case of act of god or force majeure resulting in a delay or the impossibility of the execution of its obligations, LEHVOSS France shall be exonerated from all its contractual obligations, in full or in part.
6. Shipment and transfer of risks
6.1 In case no stipulation to the contrary has been made in the order confirmation, shipment of the goods shall be effected from our warehouses, at the expense and risk of the Purchaser, the risk being transferred from the time of hand-over of the goods to the first forwarder or from the time when the Purchaser receives a notification that the goods are available for pick-up whatever occurs earlier. This transfer of risk shall take place even though partial deliveries are made or even if LEHVOSS France has taken over other additional services, such as bearing the shipment or delivery cost. In case of a minor fault, the customer shall not have the right to reject acceptance of the goods. Reservation of ownership in the goods shall not oblige LEHVOSS France to bear the risks.
6.2 If the Purchaser expressly requires it, LEHVOSS France shall take out an insurance covering the risks connected with transport of the goods. The cost arising out of this shall be borne by the Purchaser. If required, LEHVOSS France shall communicate to the customer the insurance conditions on the basis of which transport has been insured.
6.3 The Purchaser undertakes to take out an insurance policy at its own expense appropriately covering the economic risks arising out of the transfer of risk.
6.4 If no specific shipment mode has been specified, LEHVOSS France shall have the right to choose a transport mode at its own discretion.
6.5 In case the delivery period cannot be observed by LEHVOSS France for any reason attributable to the Purchaser, the goods will be made available for collection by the Purchaser and the transfer of risks will occur as of the moment the goods are made available for collection..
7.1 Purchaser shall check the goods, its quality and its compliance with the purchase order at the time of its delivery.
7.2 In case of any degradation or partial loss found by the Purchaser, the latter shall notify its complaints stating the reasons by extrajudicial act or registered mail with acknowledgement of receipt addressed to the forwarding agent within 3 days after delivery, according to the provisions of Article L 133-3 and in compliance with the Commercial Code.
7.3 Notwithstanding of the actions to be taken by the Purchaser with regard to the forwarding agent, as set forth in Article 7.2 above of the present conditions, in case of any apparent defect or lnon-conformity, all complaint of whatever nature with respect to the delivered products will not be accepted by LEHVOSS France unless made in writing as registered mail with acknowledgement of receipt made within the period of 7 days.
7.4 Purchaser undertakes to communicate to the company LEHVOSS France all details required to ascertain the reality of apparent defect or non-compliance of the goods.
7.5 No goods shall be returned by the client without the prior express written approval of LEHVOSS France, received in writing. The costs for the return will not be supported by LEHVOSS France, except in case of apparent defect or non-conformity definitely found by LEHVOSS France or its authorized agent. Only the forwarder selected by LEHVOSS France shall be allowed to carry out the return of the relevant products.
7.6 Whenever after checking, any apparent defect or non-conformity is definitely found by LEHVOSS France, Purchaser shall only be entitled to claim replacement of the articles not complying and/or not being complete to fill up the missing items at the cost of same, the Purchaser not having the right to claim any compensation whatsoever or termination of the order.
8. Reservation of title
8.1 The company LEHVOSS France reserves all title of property of the goods sold and delivered until the actual payment of the full price, both downpayment and balance, including the case of payment in commercial bill, until the date when all receivables of the company LEHVOSS France resulting out of the present business relations will be duly paid and received.
8.2 The Purchaser shall be entitled to change the goods and/or resell it in due and orderly commercial form as long as he will not fall behind the schedule of payment towards the company LEHVOSS France or stops his payments. This authorization will become nil and void in case of legal correction or legal liquidation.
8.3 In case of resale, the Purchaser undertakes to notify the company LEHVOSS France immediately to allow him exercise his right of claim with regard any third purchaser.
In case of resale, the Purchaser undertakes to inform its own clients and all third parties in writing about the existence of the present clause of reservation of title and about the right of LEHVOSS France to claim the resale price of the goods from their hands.
If the goods are resold by Purchaser without having paid for them, the claims of Purchaser will automatically be assigned to LEHVOSS France in whole.
Purchaser shall be entitled to receive the debt yielded to LEHVOSS France, on behalf of LEHVOSS France, until the revocation of same by the company LEHVOSS France. The authorization of recovering will automatically stop in case of delayed payment or termination of payment by Purchaser. In this case, the company LEHVOSS France is authorized by Purchaser to communicate the transfer to the purchasers of Purchaser and to recover itself the credits.
The Purchaser is required to give, at the request of LEHVOSS France, a full list of credits being allocated to the Purchaser indicating the names and addresses of the sub-purchasers, the amount of the various credits, the date of invoice etc. He shall also furnish all details and required documents to recover the yielded claims and to allow checking this information.
The amounts received by the purchaser for the claims yielded will be separately kept by him for the company LEHVOSS France until their transfer to LEHVOSS France. Such amounts shall be regarded as pertaining to LEHVOSS France.
8.4 In case of transformation of the LEHVOSS France good sold under retention of title, the Purchaser shall yield right now the property of the object resulting from the transformation in order to assure the rights of LEHVOSS France. In case of seizure or any other intervention of third, the Purchaser shall notify the company LEHVOSS France immediately; the authorization of transformation shall automatically become nil and void in case of legal rectification of bankruptcy.
8.5 Purchaser shall not be entitled to any compensation in case of transformation of the goods sold under reservation of property. Until the full payment of the amounts due, the Purchaser shall be considered as agent of a purely free basis of the goods sold under reservation of title.
8.6 Purchaser undertakes to keep the goods sold under reservation of title in proper conditions and to take out an insurance on his own exclusive charge against common/specific risks in his workshops as e.g. fire, theft and water or similar events within acceptable economic limits. Purchaser shall herewith yields his rights for compensation for such damages with respect to the insurance company or other third parties liable for replacement equal to the amount of credit to LEHVOSS France. LEHVOSS France herewith accepts the transfer.
The Purchaser, upon first demand of this company, shall provide evidence that he has contracted adequate insurance.
8.7 Purchaser undertakes to notify LEHVOSS France immediately about all cases of seizure, of any nature, or of any event liable to affect its rights with regard to the goods sold under reservation of title.
8.8 In no case whatsoever, Purchaser may agree with a pledge or hypothecation of the goods sold under reservation of title or may grant the said goods as guarantee for his obligations towards third parties. The company LEHVOSS France has the right to take back the goods, immediately and without further notice, whenever any term of payment or any contractual obligation has not be respected notwithstanding any potential compensation or interest for non-fulfilment and any other amounts due in compliance with the contractual relations.
8.9 All costs and expenses related to the return of the goods or to the recovery of the credits of LEHVOSS France or to any other intervention of third party shall be on the account of Purchaser.
Upon restitution or return of the said goods sold under reservation of title, the company LEHVOSS France shall have the right of reselling it; the receipt of such transfer shall be deducted from the amounts due by Purchaser as well as all costs generated by the recovery and then transfer of the goods.
9. Warranty for apparent and hidden defects
9.1 The products shall be inspected by the client upon their delivery and any complaint, reserve or dispute relating to the apparent lacks and defects shall be carried out in accordance with Article 7 above. In case of apparent defects, the defective parts shall be replaced by LEHVOSS France subject to checking of pled defects.
9.2 The Purchaser shall provide for any justification as for the reality of the noted defects, LEHVOSS France reserving the right to proceed with any observation and checking on the spot, either directly or indirectly.
9.3 No complaint for nonconformity can be made by the Purchaser more than 7 days after the delivery of the products.
9.4 It is expressly agreed by the client’s accepting the present general sales conditions that after the expiry of this period, the Purchaser may not call for non-compliance of the products nor can he oppose it by any counter-claim in order to defend at the time of any action of recovery of the claims filed by LEHVOSS France.
9.5 With regard to the warranty for hidden defects, LEHVOSS France shall only be held responsible for free of charge replacement of the defective goods without Purchaser being entitled to claim any other compensation of whatever other nature.
9.6 The legal warranty for hidden defects shall only apply to products that have become the legal property of the Purchaser. It will only apply to any products completely manufactured by LEVHOSS France. It will be excluded, if the products are used under unintended service conditions and low performances. The warranty of LEHVOSS France does only apply to any hidden defects. Since the Purchasers are considered to be professionals, any hidden defect is understood as defect of manufacture of the product preventing its proper use and not being able to be detected by Purchaser before its utilisation. The purchasers of LEVOSS France agree having received all technical information pertaining to its products.
All defects or degradation of the delivered products resulting from abnormal conditions of warehousing and/or preservation in the Purchaser’s workshops or caused by natural wear and tear or by an external accident (faulty assembly, lacking maintenance, abnormal use, etc.) or resulting from any modification of the product neither intended nor specified by LEHVOSS France or further, if the place of utilisation is not adequate or any other cause or reason are excluded from this warranty.
If the type of product so permits, the warranty will be limited to replacement or repair of the defective parts.
LEHVOSS France grants to the Purchaser, in addition to the legal warranty, a contractual warranty, limited to the first six months of operation. It is understood that the LEVHOSS France products will be used by its purchasers within the first months after making them available, at the latest. Under all circumstances, the Purchasers shall notify the date of start of utilisation. Our warranty will stop without further notice upon the end of said period. Purchaser is required to communicate separately the features of the objects of delivery which are of major importance to him. If Purchaser fails to provide such information, and if such features are not necessarily provided for reasons of the nature of the bought item, Purchaser shall not be entitled to claim warranty.
The warranty of LEHVOSS France will stop automatically, if the Purchaser has not notified any pretended defect within a period of seven days after its discovery, by letter with acknowledgment of receipt.
9.7 In case of complaint, the Purchaser undertakes to keep the disputed goods in stock until the complete settlement of the dispute. No sum whatsoever may be claimed from LEHVOSS France in this matter.
9.8 If any complaint was wrongly notified, the company LEHVOSS France reserves the right to claim refunding of the amounts incurred by such complaint.
10. Force Majeure
10.1 The company LEHVOSS France cannot be held responsible for neglecting its contract obligations if such failure is due to the event of any case of Force Majeure. Force majeure means any event occurring independently of the will of the company LEHVOSS France or of any of its suppliers, which is unforeseeable and unavoidable of whatever nature it would be, natural disasters, bad weather, sabotages, embargoes, strikes, interruptions or delays in transport or means of communication or supply of raw materials, energy or components, accidents of tools, etc. which cause to make the contract impossible in temporary or final way.
10.2 It is specified that the list of the case of Force Majeure is not restrictive.
11. Court of jurisdiction / applicable law
11.1 The parties expressly agree that any dispute arising from the interpretation or execution of the contract will be put forward, unless an amicable settlement can be achieved, to the Commercial Court of Paris. Notwithstanding this, LEHVOSS France may as well file a complaint at the place of residence of Purchaser.
11.2 Subject to special contract provisions and legal regulations, the French law shall be the only one applicable.
11.3 Place of execution of the delivery and payment shall be the headquarters of LEVHOSS France.
12. Miscellaneous provisions
The parties agree that any further agreement shall be made in writing. There exist no other oral complementary agreements to the contrary. They require the written approval of every concrete case to become valid. The requirement of written form is also applicable for the cancellation of the present provision.
In case any of the present provisions of contract conditions become nil and void, the validity of the other provisions shall remain unchanged.