A Simplified Joint Stock Company
With a share capital of EUR 1,000,000
With registered office at 35, Rue de La Gare
CLAUSE 1: CONTENT AND SCOPE
Any order of goods implies the unreserved acceptance and full endorsement by the buyer of the present general terms of sale, which shall prevail over any other document of the buyer, not least any general terms of purchase, unless expressly agreed to the contrary by REFRACOL.
The present general terms of sale apply to all sales of REFRACOL goods, unless the parties specifically agree otherwise in writing, prior to the order. All documents other than the present general terms of sale, especially catalogues, prospectuses, advertisements, instructions, are merely informative, illustrative and non-contractual. The present general terms of sale are made available to all buyers who ask to receive them, with a view to allowing orders to be placed with REFRACOL, prior to the conclusion of a single agreement, as referred to in Article L. 441-7 of the French Commercial Code, within legal deadlines. REFRACOL reserves the right to derogate from particular clauses herein, depending on the negotiations conduced with the buyer, by establishing special terms of sale. REFRACOL also reserves the right to establish general product-specific terms of sale, which derogate from the present general terms of sale, depending on the kind of client considered and according to criteria which shall be objective at all times.
CLAUSE 2: INTELLECTUAL PROPERTY
All technical documents, goods and photographs made available to our clients remain the exclusive property of REFRACOL, who is the sole holder of the intellectual property rights in relation to these documents, and must be returned on demand. The clients of REFRACOL undertake not to use these documents in any manner which may infringe on the industrial or intellectual property rights of REFRACOL and undertake not to disclose them to any third parties.
CLAUSE 3: ORDERS
Sales are only confirmed once the client’s order has been expressly accepted in writing by REFRACOL. The order is defined as any order relating to our goods featured at our rates, and accepted by REFRACOL, and accompanied by the payment of any deposit which, if applicable, is stipulated on the purchase order.
The order must be confirmed in writing, by means of a purchase order, duly signed by the buyer. Upon receipt, it becomes irrevocable.
Any orders submitted to REFRACOL are irrevocable for the client, unless agreed otherwise by REFRACOL in writing.
If the composition or volume of any order placed by a client is altered, this alteration may only be considered by REFRACOL if the request is submitted in writing, including by e-mail, and reaches REFRACOL not later than eight (8) days of receipt of the initial order by the supplier.
However, in the event that a request is submitted after the 8-day period, REFRACOL expressly reserves the right to accept the alteration of the composition or volume of an order. In the event of an alteration by the client, REFRACOL will no longer be bound by the agreed performance deadlines, as established in Clause 4.
CLAUSE 4: DEADLINE
The delivery date stipulated in any contractual documents, such as invoices, is provided merely for reference and indication. REFRACOL makes every effort to observe the delivery dates indicated upon acceptance of the order, according to the reference logistics deadline of the profession, and to execute orders, except in a case of force majeure, or in any circumstances beyond its control, such as, in particular, strikes, frost, fire, storms, flooding, epidemics or supply issues. Delivery delays may not give rise to any penalty or compensation.
Any delay in relation to the delivery date, which is initially established for illustrative purposes, may not be invoked to terminate an order placed by the client and registered by REFRACOL. REFRACOL reserves the right to honour orders in the form of partial deliveries.
CLAUSE 5: TRANSFER OF OWNERSHIP AND RISKS
Even if the products are delivered carriage free, and the ownership of the object sold is transferred to the buyer after the price has been paid in full, the related risks are transferred as soon as the parties reach an agreement about the object and price. As a result, the transfer of any related risks of loss and damage takes place, at the charge of the buyer, as soon as the purchase order is accepted by REFRACOL.
CLAUSE 6: TRANSPORT
In the event of a fault affecting the delivered goods or if any items are missing, the client is responsible for reporting all corresponding anomalies to the transport company used in the delivery.
Any product concerned with an anomaly that is not reported to the transport company by registered letter with acknowledgement of receipt within three (3) days of receipt, in accordance with Article L. 133-3 of the French Commercial Code, a copy of which must be sent to REFRACOL at the same time, will be deemed to be accepted by the client.
REFRACOL may not, under any circumstances, be held responsible for transport, even if it selects the transport company.
CLAUSE 7: RECEIPT
Without prejudice to the measures to be taken by the client, as established in clause 6 of the present general terms, in the event of obvious flaws or missing items, any claim, irrespective of its nature, relating to the delivered goods, will only be accepted by the supplier if it is submitted in writing, by registered letter with acknowledgement of receipt within a period of three (3) days, as indicated above. The buyer is responsible for providing any documents in support of the existence of the observed flaws or missing items.
Goods may not be returned by the client without the prior, express and written consent of REFRACOL.
The cost of returning goods is borne by the client, except in the case where an obvious flaw or missing items are effectively observed by REFRACOL or its representative.
Only the transport company selected by REFRACOL is therefore authorised to return the goods concerned. In this event, the client may only ask REFRACOL to replace the non-compliant items and/or supplement them to compensate for any missing items at the expense of the latter, although the client may not claim any compensation or the termination of the order.
The unconditional acceptance of the goods ordered by the client covers any obvious flaw and/or missing items. All anomalies must be confirmed subject to the conditions established above. Any claim made by the buyer subject to the conditions and according to the terms set out below in this clause does not suspend the payment of the relevant goods by the client.
CLAUSE 8: SUSPENSION OF DELIVERIES
If any invoice is not paid in full on its due date, after a formal notice has gone unheeded for 48 hours, REFRACOL reserves the right to suspend any ongoing and/or upcoming delivery.
CLAUSE 9: DELIVERY SUBJECT TO CASH PAYMENT
All orders that REFRACOL agrees to execute take into consideration that the client presents sufficient financial guarantees, and that they will effectively pay any sums by their due date, in accordance with applicable legislation. As a result, if REFRACOL has substantial reason to believe that the client will run into payment difficulties on the order date, or subsequent to the same, or even if the client does not present the same guarantees as on the order acceptance date, REFRACOL may condition the acceptance of the order or the continuation of its execution on a cash payment or on the supply, by its client, of guarantees in favour of the supplier. Prior to the acceptance of any order, and during any execution, REFRACOL also reserves the right to demand the submission by the client of their accounting records, not least profit and loss statements, even if they are estimated, which can be used to assess solvency.
If the client refuses to make the cash payment, without any sufficient guarantee being proposed, REFRACOL may refuse to honour the order(s) placed and deliver the goods concerned, and the client may not invoke any unjustified refusal of sale, or claim any compensation whatsoever.
CLAUSE 10: RATE – PRICE
Clause 10.1: Rate
The applicable rate may be adjusted at any time after the client has been notified. Any change to the rate will be automatically applied on the date indicated for the new rate.
Clause 10.2: Price
The prices are established at the rate applicable on the day when the order is placed. They are always exclusive of tax.
The sale price may not be reduced or increased if, during the execution of the contract, the market value of the goods changes.
Prices are established ex works, unless expressly agreed otherwise with the client.
CLAUSE 11: PAYMENT
The price is payable in full and as part of a single payment within a period of FORTY-FIVE (45) days of the date on which the invoice is issued. This period will be indicated on the invoice sent to the buyer.
All orders, as defined above, may give rise to the payment of a deposit.
Any amount not settled on its due date will give rise to the payment by the client of the penalties established at the legal interest rate plus five points, without the need for any reminder or formal notice to implement the penalties. In the event of a late payment, the client will also be liable, by operation of law and without any prior notice, to pay a recovery fee of forty (40) euros, without prejudice to any other right or recourse at the disposal of REFRACOL.
REFRACOL may claim additional compensation from the client if the effectively incurred recovery fees exceed this amount, upon presentation of supporting documents.
REFRACOL reserves the right to refer any matter to the competent court with a view to remedying any situation where the client fails to fulfil its obligations, subject to a daily fine per day of delay.
REFRACOL also reserves the right to suspend or cancel ongoing deliveries.
In the event of legal action or any other action for the recovery of claims by REFRACOL, the costs related to the summons, proceedings and any lawyer and barrister’s fees, and all ancillary costs will be borne by the client; so too will any costs related to or arising from a failure by the client to comply with the payment or delivery terms pertaining to the order in question.
CLAUSE 12: RETENTION OF TITLE
The transfer of ownership in relation to the goods is suspended until such time as the price, in terms of the principal and ancillary costs, is paid in full by the client, even in the event that extended payment deadlines are granted; this clause extends to include all penalties owed by the client. Any clause to the contrary, not least any included in the general terms of sale, is deemed never to have existed. The client may only resell their unpaid goods as part of the normal activity of their company, and may not, under any circumstances, pledge or grant securities in relation to its unpaid stock. In the event of a payment default, the client expressly undertakes not to resell their stock up to the quantity of unpaid goods. REFRACOL reserves the right to terminate the sale subject to the conditions established in clause 13 of the present instrument, and to claim the delivered goods in accordance with the provisions of Article L624-16 of the French Commercial Code.
In this case, the cost of returning the goods will be charged to the buyer and any payments already made by the client are retained by REFRACOL.
CLAUSE 13: TERMINATION
Besides the previous clauses, in the event that an invoice is not paid on its due date, REFRACOL may also terminate the sale after sending a formal notice which has gone unheeded for a period of 48 hours.
Likewise, REFRACOL may, following the dispatch of a formal notice, produce an inventory of its products in the possession of the client, who now undertakes to provide access to their warehouses, stores or any other premises for this purpose, and will ensure that the goods are able to be identified at all times.
CLAUSE 14: GUARANTEE OF OBVIOUS AND CONCEALED FLAWS
The guarantee granted by REFRACOL covers any failure by the goods to comply with the order and any concealed flaw, stemming from a fault with the material, the design or production which affects the essential properties of the delivered goods and renders them unusable.
In these conditions, REFRACOL will replace or repair the goods or parts covered by the guarantee; this guarantee also covers labour costs.
The goods must be checked by the client upon delivery, and any claim, anomaly or dispute relating to missing items and concealed flaws must be formalised subject to the conditions listed in the clauses of the present general terms.
In the event of an obvious flaw, the defective goods will be replaced by REFRACOL, under its responsibility, subject to the validation of the alleged faults by REFRACOL. The client must submit all supporting documentation regarding the existence of the observed faults, and REFRACOL reserves the right to directly or indirectly dispute and validate them on site.
The reporting of any faults which exist at the time of delivery, and observed after the goods have been received, must be noted by the client in writing within a period of three (3) days of the date on which the client learns of the non-conformity. No reports will be taken into consideration if they are made more than three (3) clear days after the delivery of the goods.
No action relating to non-conformities may be instituted by the client more than thirty (30) days after the delivery of the goods. In accepting the present general terms of sale, the client expressly agrees that, following the expiry of this deadline, they may not invoke the non-conformity of goods, or oppose as part of a counter claim to defend themselves in any action to recover claims instituted by REFRACOL. If these conditions are not met, the liability of REFRACOL, vis-à-vis the client, may not be incurred for any concealed flaw.
Any faults and damage which affect the delivered goods consecutive to unusual storage and/or conservation conditions at the premises of the client, not least in the event of an accident of any kind, may not give rise to the implementation of the guarantee due by REFRACOL.
Under the concealed flaw guarantee, REFRACOL will only be required to replace, free of charge, the defective goods, although the client is not able to claim damages for any reason whatsoever.
REFRACOL guarantees its goods against any concealed flaws, in accordance with law, customary uses, case-law and subject to the following conditions:
– the guarantee only applies to goods which have duly become the property of the buyer
– it only applies to goods that are fully manufactured by REFRACOL;
– it is excluded as and when out goods are used under unsuitable conditions of use or performance.
As the clients of REFRACOL are professionals, the concealed flaw means in particular a production flaw relating to the goods which render them unfit for purpose and which is not likely to be detected by the buyer before their use. A design flaw is not a concealed flaw and the client is deemed to have received all technical information.
The client is responsible for providing proof on the date on which the concealed flaw is detected.
It is expressly stipulated that all goods marketed by REFRACOL are related to a technical sheet and a safety sheet which enable the buyer to check the characteristics and suitability for the intended use. REFRACOL is not able to reproduce in a laboratory setting any environment or conditions of use of the buyer, who must therefore undertake any necessary checks and tests.
CLAUSE 15: FORCE MAJEURE
Cases of force majeure or unforeseeable events are deemed to be out of the control of the parties, which they could not reasonably be expected to foresee, and which they could not reasonably prevent or overcome, to the extent that their occurrence renders the fulfilment of the obligations completely impossible.
The following, which excuse REFRACOL from its obligation to deliver within initially established deadlines, are equivalent to cases of force majeure or unforeseeable events: strikes concerning all or part of the staff of the supplier or its usual transport companies, fire, flooding, war, production suspension due to unforeseen faults, raw materials unable to be supplied, epidemics, roadblocks, strikes or disruption of energy supply, or disruption of supply for any cause not attributable to REFRACOL, as well as any other cause of supply disruption that is not attributable to other suppliers.
In these circumstances, REFRACOL will inform the client in writing, especially by e-mail, within 24 working hours of the date on which these events occur, and the contract by which the supplier and the client are bound is therefore suspended by operation of law, without any compensation, as of the date on which the event takes place.
If the event lasts more than thirty (30) days, as of the date on which it occurs, the contract entered into by and between REFRACOL and its client may be terminated by the party to act first, without the possibility for either party to seek any damages.
This termination will take effect on the date of first submission of the registered letter with acknowledgement of receipt in which the termination is reported.
CLAUSE 16: WAIVER
If REFRACOL does not invoke any of the clauses of the present instrument, this does not equate to a waiver of the right to invoke them at a later stage.
CLAUSE 17: APPLICABLE LAW – DISPUTE – JURISDICTION – LANGUAGE
Any issue relating to the present general terms of sale, and to the sales that they govern, which is not addressed by the contractual clauses herein, will be subject to the provisions of French Law.
Any dispute relating to the implementation, interpretation and execution of the present general terms or any contracts concluded by REFRACOL will be referred to the competent courts of the registered address of REFRACOL, irrespective of the order, the delivery, and the payment and method of payment, and even in cases where there are several defendants or introductions of third parties.
If the present instrument is translated into another language, the French version will prevail.
CLAUSE 18: ACCEPTANCE OF THE BUYER
The present general terms of sale are expressly approved and accepted by the client, who states and acknowledges that they have read and understood them, and thereby waives the right to invoke any other document to the contrary.