General terms and conditions of sale
In force as of 24/01/2020
The present General Terms and Conditions of Sale (" GTCS ") apply to all orders and deliveries of products (the " Products ") placed by TORTEL INDUTRIES with its clients (hereinafter the " Client ").
The Customer and the Supplier are hereinafter collectively referred to as the "Parties" or individually as the "Party".
The present General Terms and Conditions of Sale are expressly approved and accepted without reservation by the Customer, who, by accepting the offer and by signing or sending the order form or the contract, declares and acknowledges that he is fully aware of them, and thereby renounces the right to rely on any other document issued by him and, in particular, his own general terms and conditions of purchase, which will be unenforceable against TORTEL INDUSTRIES, even if it has been made aware of them.
Any deviation from these general terms and conditions of sale must be expressly accepted by TORTEL INDUSTRIES.
TORTEL INDUSTRIES shall formulate an indicative offer indicating in particular the quantity, price, period of execution, packaging and logistical conditions.
If accepted by the Customer, TORTEL INDUSTRIES will issue a written confirmation of the terms and conditions of the agreement between TORTEL INDUSTRIES and the Customer (hereinafter the " Order Confirmation ").
This Order Confirmation is a commitment by TORTEL INDUSTRIES to deliver the Products.
2. PRICING CONDITIONS
Prices are those determined on the date of the Order Confirmation by TORTEL INDUSTRIES, unless otherwise agreed between the Customer and TORTEL INDUSTRIES.
Prices are exclusive of all taxes and other duties (VAT, etc.) and are given for a given product, period, volume, packaging and logistical conditions.
Any change in the VAT rate scale will be reflected on the day the new scale and/or rate is applied.
Prices are also exclusive of transport, packaging, unloading, insurance, taxes, charges and intellectual property rights, unless otherwise agreed between the Customer and TORTEL INDUSTRIES.
Services provided by TORTEL INDUSTRIES that are not explicitly provided for in the Order Confirmation or the Contract and these General Terms and Conditions of Sale will be invoiced to the Customer in addition.
The Customer shall be solely responsible for and shall pay all taxes, duties, fees and charges of whatever nature imposed by any governmental authority or administration or by any other person in connection with the Products.
An Order is any request by the Customer to TORTEL INDUSTRIES for a Product, which becomes final when confirmed in writing by any person with authority within TORTEL INDUSTRIES by means of an Order Confirmation (" Order ").
TORTEL INDUSTRIES reserves the right to accept or refuse, in whole or in part, any request for a Product from the Customer, particularly in consideration of the volume and/or amount of the order.
Unless accepted in writing by TORTEL INDUSTRIES, no Order may be modified after its acceptance by TORTEL INDUSTRIES.
TORTEL INDUSTRIES shall only be obliged to satisfy the Customer's requests within the limits of the sales forecasts of its stocks and production capacities, it being understood that it may proceed by partial deliveries or provisioning. No compensation can be claimed by the Customer in case of stock shortage or limitation of deliveries.
Delivery is made from any external warehouse where the Products may be located, unless otherwise agreed between the Customer and TORTEL INDUSTRIES.
Therefore, delivery of the Products to the Customer shall be deemed to have been made when the Products are made available to the Customer by TORTEL INDUSTRIES at TORTEL INDUSTRIES' premises or any external warehouse where the Products may be located, unloaded.
Delivery times and dates are agreed between TORTEL INDUSTRIES and the Customer on the Order Confirmation.
Unless otherwise agreed, for each delivery resulting from an Order, only one place of delivery, one legal entity invoiced, one date and one mode of transport may be recorded.
Unless otherwise agreed between the Customer and TORTEL INDUSTRIES, for each Order, delivery shall be made in a single operation during daylight hours from Monday to Friday, loading and unloading being the responsibility of the recipient.
Delivery times are indicative and exceeding these times shall not give rise to damages, deductions or penalties, and shall not entitle the Customer to refuse the Products.
TORTEL INDUSTRIES reserves the right to deliver the quantities ordered per delivery and will invoice the price corresponding to the quantity delivered.
5. RECEPTION - CLAIMS
The Products are delivered in accordance with the TORTEL INDUSTRIES specifications described in the technical data sheet which is available to the Customer upon request to TORTEL INDUSTRIES (the " Technical Data Sheet "), TORTEL INDUSTRIES carrying out a quality control of the Products in its warehouses or any external warehouse where the Products may be located before loading.
Any other complaint regarding the nature, quality or packaging of the goods delivered must be sent to TORTEL INDUSTRIES immediately and at the latest within twenty-four (24) hours after delivery. After the expiry of these time limits, the entire delivery or provision shall be deemed to have been made in accordance with the Order and shall be deemed to be in conformity in all respects.
Any claim must be duly justified by the customer, who must immediately provide TORTEL INDUSTRIES with the means to verify the condition of the goods in question and transmit to TORTEL INDUSTRIES any element necessary to verify the claim. The customer shall not intervene or have a third party intervene to remedy the defect before TORTEL INDUSTRIES has been able to ascertain the alleged defects.
No return of goods will be accepted without the express prior agreement of TORTEL INDUSTRIES.
The costs and risks of the return will always be borne by the Customer.
Returned goods must be accompanied by a return slip and must be in the same condition as when TORTEL INDUSTRIES delivered them.
In addition to any special instructions that may be provided by TORTEL INDUSTRIES, the goods must be stored indoors in a cool, dry place, protected from light, dust, water damage, bad weather and frost, and in sanitary conditions free of rodents or insects. The goods must not be stored in abnormal conditions or conditions incompatible with their nature, nor in the vicinity of other strongly smelling products such as washing powder, tyres or fuels.
8. INVOICING - PAYMENT
Invoices are issued and dated on the day of loading of the Products from TORTEL INDUSTRIES' warehouses or from any external warehouse where the Products may be located.
Unless otherwise agreed, invoices are payable within thirty (30) days of the invoice date by bank transfer to the bank details provided by TORTEL INDUSTRIES. Payment shall be deemed to have been made on the date on which the funds are made available to TORTEL INDUSTRIES.
As an exception, in the case of the first Order Confirmation between the Customer and TORTEL INDUSTRIES, a prepayment will be requested before any delivery of goods.
Invoices shall be drawn up in two original copies (paper or dematerialised if requested by the Customer), one of which shall be for the Customer and one retained by TORTEL INDUSTRIES and shall include all the information required by law and in particular by Article L.441-3 of the French Commercial Code.
In the event of partial or total non-payment on the due date, TORTEL INDUSTRIES reserves the right to demand :
- Late payment penalties calculated from the due date until the day of full payment at a rate equal to three times the legal interest rate or 10% of the unpaid amount, whichever is higher;
- A fixed indemnity for collection costs, the amount of which is set by decree (40€) (art. D441-5 of the Commercial Code);
- Immediate payment of the sums due by the Client and cash payment for future sales;
- The suspension of deliveries until full payment of the price, without prejudice to any other course of action.
TORTEL INDUSTRIES reserves the right, at its sole discretion, in particular whenever the Customer presents a risk of insolvency, to modify the agreed payment terms, to request immediate payment of outstanding invoices, to cap the outstanding amount, to request payment before delivery of the Products or any other form of payment guarantee.
No claims against TORTEL INDUSTRIES for invoices for TORTEL INDUSTRIES Products may be made after a period of twelve (12) months from the date of issue of such invoices.
Any complaint relating to invoices must be accompanied by the supporting documents necessary to verify its validity.
Unless otherwise agreed, no discount will be granted for early payment of our invoices.
9. RETENTION OF TITLE - RESALE OR CONVERSION
Reservation of ownership - The Products sold remain the property of TORTEL INDUSTRIES until full payment of the sales price, interest, costs and accessories. In the event of non-payment by the Customer, TORTEL INDUSTRIES may repossess the unpaid Products, including in the event of collective proceedings of the Customer in application of articles L 624-16 et seq. of the Commercial Code.
The sale will be automatically cancelled if TORTEL INDUSTRIES sees fit and the down payments already made will be retained by TORTEL INDUSTRIES in return for the use of the Products by the Customer.
The repossession of the Products is not exclusive of any other legal proceedings that TORTEL INDUSTRIES may take. All costs of repossession and/or proceedings shall be borne by the Customer.
Resale or transformation - The Products remain the property of TORTEL INDUSTRIES until full payment of the price, and the customer may not dispose of the Products for resale or processing. However, as a tolerance and for the sole purpose of its activity, TORTEL INDUSTRIES authorises the Customer to resell the Products, provided that the Customer pays the full price due upon resale.
10. WARRANTY - EXCLUSION OF WARRANTY
The Customer declares that he/she has the necessary competence to assess the Products.
The Customer acknowledges that he/she has been fully informed of the characteristics of the Products and of the objectives that may be achieved with the Products. Therefore, TORTEL INDUSTRIES does not warrant that the Products are suitable for any particular purpose.
The Customer must make proper use of the Products, in accordance with the rules of the trade and in accordance with the Technical Data Sheet supplied with the Products. All indications must be respected, failing which the warranties granted in this article will be void.
In any case and notwithstanding any provision to the contrary, TORTEL INDUSTRIES shall be liable for any hidden defects in the Products in accordance with the provisions of articles 1641 and following of the French Civil Code.
In case of defective Products, the provisions of articles 1245 and following of the Civil Code shall apply.
Unless otherwise agreed between the Customer and TORTEL INDUSTRIES, TORTEL INDUSTRIES warrants the Products for the duration of the shelf life.
For Products not manufactured by TORTEL INDUSTRIES, TORTEL INDUSTRIES will only pass on the supplier's warranty.
No warranty other than those mentioned above is given. Thus, TORTEL INDUSTRIES does not warrant that the Product will meet the Customer's requirements or that it will operate in combinations other than those specified in the Data Sheet.
Any warranty is excluded in case of apparent defect, misuse, negligence or lack of maintenance or conservation on the part of the Customer, or lack of information on the part of the Customer on the specific environment in which the Product is used, as well as in case of normal wear and tear of the good or force majeure, or by a modification of the Products not foreseen nor specified by TORTEL INDUSTRIES and finally in case of use after the expiry date.
In order to assert his rights, the Customer must inform TORTEL INDUSTRIES in writing of the existence of the defects with the appropriate justification within a maximum of fifteen (15) days of their discovery.
Subject to available stocks, TORTEL INDUSTRIES' warranty is limited to the replacement, within a reasonable period of time, and at best within fifteen (15) days, of the Products under warranty deemed defective, without any other type of compensation being claimed from TORTEL INDUSTRIES, including but not limited to damages and interest.
Unless otherwise stated, replacement of Products will not extend the warranty period.
In the event of misuse of the Products by the Customer and requiring a return to TORTEL INDUSTRIES, the shipping costs will be borne by the Customer.
No advice or information provided by TORTEL INDUSTRIES, its vendors, distributors, agents or employees shall create any new warranty or extend the warranty referred to in this clause and the Customer shall not rely on such advice or information.
11. INTELLECTUAL PROPERTY
The Customer acknowledges that he/she has no rights whatsoever over the intellectual property rights and in particular the trademarks, trade names, models, patents, visuals, logos, company names, know-how, recipes and technical specifications relating to the Products sold to the Customer and which are and remain the exclusive property of TORTEL INDUSTRIES.
The Customer agrees not to use and/or exploit in any way and for any reason the intellectual property rights of TORTEL INDUSTRIES without the prior written consent of TORTEL INDUSTRIES.
The Customer agrees to inform TORTEL INDUSTRIES as soon as it becomes aware of any act of unfair competition or infringement of TORTEL INDUSTRIES' intellectual property rights or of any protest by a third party claiming that the goods infringe its intellectual property rights.
12. FORCE MAJEURE
Any event beyond the debtor's control which could not reasonably be foreseen at the time of issuing the Order Confirmation and the effects of which cannot be avoided by appropriate measures, preventing the performance of all or part of the Order, shall be deemed to be force majeure, including any accident affecting the production or storage of the Goods, carrier failure, fire, explosion, flood, machinery breakdown, partial or total strike, customer, supplier or third party action, civil or foreign war or other political or health disturbance.
These events, even if foreseeable, will suspend or extinguish, as the case may be, the debtor's obligations, and the same shall apply when these events are of such a nature as to render the performance of the commitments economically exorbitant.
13. LIMITATION OF LIABILITY
TORTEL INDUSTRIES shall only be liable for the financial consequences of (i) direct and (ii) foreseeable damage caused by the Products.
In no event shall TORTEL INDUSTRIES be liable for any indirect or consequential loss or damage, including, but not limited to, any lost profits, loss of business, loss of image, loss of revenue or profit, loss of goodwill, loss of opportunity, cost of procurement of substitute products, in connection with or arising out of the product, its installation if performed by TORTEL INDUSTRIES, or its operation.
In any event, the amount of TORTEL INDUSTRIES' liability arising from the use or performance level of the Product is limited to the amount of money actually paid by the Customer to TORTEL INDUSTRIES.
14. AUTONOMY OF THE PROVISIONS
15. AUTONOMY OF THE PROVISIONS
The waiver by either Party of any breach or default of any provision of these Terms and Conditions shall not operate as, nor be construed as, a waiver of any subsequent breach or default.
If any provision of these general terms and conditions of sale is deemed or declared to be illegal, void or unenforceable, or contrary to laws and regulations, the validity of the remaining provisions shall not be affected.
The Customer shall not disclose, divulge or transfer to any third party, without the written permission of TORTEL INDUSTRIES, any information obtained directly or indirectly from TORTEL INDUSTRIES or in connection with orders for Products, including but not limited to, its technical or business activities or methods and, in particular, prices, discounts, products, product specifications, processes, data and know-how, ideas, technical information of any kind.
For information covered by the business secret as defined by Law n°2018-670 of 30 July 2018, it shall remain confidential as long as it has not been made public by the legitimate holder or a third party other than the Parties.
17. PERSONAL DATA
Within the framework of the present contractual relationship, TORTEL INDUSTRIES may collect and process personal data relating to the Customer's personnel: Name, First Name, Postal Address, Email Address, Telephone Number (hereinafter referred to as " Personal Data ").
As the person responsible for processing the said data, TORTEL INDUSTRIES undertakes to comply with the obligations incumbent on it under French regulations on personal data and in particular the provisions of Law n°78-17 of 6 January 1978 known as the "Data Protection Act" as amended by Law 2004-801 of 6 August 2004 and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on data protection, which entered into force on 25 May 2018 (hereinafter the " Regulation "). TORTEL INDUSTRIES may process the Personal Data strictly necessary (i) to manage the order and, more broadly, the commercial relationship, and/or (ii) to manage any unpaid invoices and disputes, and/or (iii) to comply with its legal and regulatory obligations. The personal data is intended for use by TORTEL INDUSTRIES and the external services responsible for fulfilling its social, accounting and fiscal obligations, as well as any other possible subcontractor involved in the commercial relationship. They are kept for the time strictly necessary for the purposes mentioned above.
The Customer's personnel have a right of access, rectification, opposition, deletion, limitation as well as the right to request to receive the Personal Data provided to TORTEL INDUSTRIES, in a structured, commonly used and machine-readable format, for the purpose of transmitting them to another data controller. Any such request should be addressed to the management of TORTEL INDUSTRIES.
In the event of a breach of Personal Data, which may pose a risk to the rights and freedoms of the personnel concerned, TORTEL INDUSTRIES undertakes to notify the competent supervisory authority (CNIL) within 72 hours of becoming aware of the breach, and the person concerned as soon as possible, in accordance with the conditions set out in Articles 33 and 34 of the Regulation. Without prejudice to any other administrative or judicial remedy, if the Customer's staff considers that the processing of their Personal Data constitutes a violation of the provisions of the legislation in force, they may lodge a complaint with the CNIL.
18. ETHICS - COMPLIANCE WITH REGULATIONS
TORTEL INDUSTRIES undertakes to comply with all legal and regulatory obligations in force throughout the contractual relationship with the Client, in particular with regard to labour law, immigration, social security, health, safety and the environment.
TORTEL INDUSTRIES expressly guarantees, on pain of immediate termination of the contractual relationship to its exclusive detriment, that it will only employ salaried personnel in accordance with the legislation governing labour relations and the labour market.
TORTEL INDUSTRIES shall not have recourse to :
- child labour as defined in particular by the International Labour Organisation Convention of 26 June 1973 on the abolition of child labour, which sets the minimum age for admission to employment or work at fifteen years (Art. 1 and 2-3), subject to more favourable provisions of national laws;
- the work of persons subjected to forced labour as defined by the International Labour Organisation Convention of 28 June 1930 concerning the Abolition of Forced or Compulsory Labour and of persons detained for any reason whatsoever;
- the work of persons subjected to a state of servitude or slavery as defined and prohibited in particular by the International Covenant on Civil and Political Rights of 16 December 1966 and by the European Convention on Human Rights of 4 November 1950 and, in general, of persons who, for whatever reason, could not personally consent, in an autonomous manner, to an obligation to work for TORTEL INDUSTRIES,
and guarantees that any suppliers and/or subcontractors comply with the same commitments.
In addition, TORTEL INDUSTRIES certifies that it has made the declarations required by the social and tax authorities and provides the Client, when it is established or domiciled in France, with the documents required in accordance with articles L.8222-1, R.8222-1, D.8222-5, D.8254-2 and D.8254-4 of the French Labour Code or, when he is established or domiciled abroad and intervenes in France in the context of the performance of the Contract, the documents required pursuant to Articles L.8222-1, L.8222-4, R.8222-1 and D.8222-7 of the French Labour Code.
TORTEL INDUSTRIES declares that all the buildings it uses or operates comply with the regulations that apply to them, particularly with regard to safety, respect for the environment and legislation on classified establishments of any kind. In particular, TORTEL INDUSTRIES certifies that it complies, on a permanent basis, with the preventive measures applicable to the storage and use of products that may present a danger to safety, health or hygiene.
In compliance with the legislative and regulatory provisions in force, TORTEL INDUSTRIES ensures that the Products have been subject to a control based on a system identifying, evaluating and ensuring the control of significant hazards.
TORTEL INDUSTRIES furthermore undertakes to respect in particular:
- Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the registration, evaluation, authorisation and restriction of chemicals (REACH);
- European Directive n°2002/95/EC of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment, European Directive n°2002/96/EC of 27 January 2003 on waste electrical and electronic equipment (WEEE) and Decree n°2005-829 of 20 July 2005 on the composition of electrical and electronic equipment and the elimination of waste from such equipment;
- if applicable to it as a company whose securities are admitted to a regulated market, Articles L.225-102-1, paragraph 5 and R.225-105 of the French Commercial Code;
- all applicable legislative and regulatory provisions in force, such as those concerning composition, hygiene and food safety (see in particular Directives 2006/141/EC, 2000/13/EC, 1995/2/EEC, Regulation 1333/2008/EC).
All in such a way that the Client will never be worried in this respect.
In the event of non-performance by the Supplier of this undertaking, the Customer may terminate the business relationship by operation of law on the grounds of serious breach by the Supplier of one of its essential obligations. Such termination shall take place within thirty (30) days of the notice of default remaining without effect, provided that the Goods can be replaced, or immediately in the opposite case.
19. CORPORATE SOCIAL RESPONSIBILITY
The Parties undertake to implement measures to prevent and detect the commission, in France or abroad, of acts of corruption or influence peddling. In this respect, TORTEL INDUSTRIES undertakes and guarantees to the Client:
- that it respects and will respect, throughout the duration of the commercial relationship, all French, European and international legislation in force concerning the prevention and fight against corruption and influence peddling;
- that it has put in place, or will put in place within a reasonable period of time, an anti-corruption mechanism in accordance with the provisions of Article 17 of the Law of 9 December 2016 on transparency, the fight against corruption and the modernisation of economic life, known as the SAPIN II Law;
- that it has not committed and will not commit in the future any act that constitutes or is likely to constitute a violation of all applicable anti-corruption legislation, in particular the provisions of Article 435-1 et seq. of the Criminal Code;
- that it is not the subject of any administrative or judicial investigation procedure concerning facts likely to be qualified as public or private corruption or trading in influence.
As part of its evaluation obligation, the Customer may at any time request proof from TORTEL INDUSTRIES that it has complied with the requirements of this clause and may at any time, subject to prior notification, conduct or have conducted audits at its own expense. In the event of an audit, TORTEL INDUSTRIES agrees to cooperate and provide any information and/or documentation that the customer may request to enable the audit to be carried out.
Failure to comply with the provisions of this clause shall constitute grounds for automatic termination of the Order for breach of an essential obligation of the contract and/or the commercial relationship in accordance with the terms and conditions set out in these GTC. The Parties shall ensure and guarantee that their managers, employees, affiliates as well as any person or company acting on its behalf or in its name, and subcontractors comply with the aforementioned obligations and undertake to notify the other Party without delay of any request, procedure or investigation of which it may be the subject, either directly or indirectly, on the grounds of a breach of French, European or international laws on the prevention and combating of bribery and trading in influence.
20. APPLICABLE LAW - JURISDICTION
The relationship between TORTEL INDUSTRIES and the Customer shall be governed by French law.
In the event of a dispute, jurisdiction is given to the courts of Paris, which will have exclusive competence, whatever the nature, cause or location of the dispute and whatever the special conditions of the sale, even in the event of a warranty claim or multiple defendants.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these General Conditions.