1. VALIDITY AND SCOPE OF GTC
These general terms and conditions (GTC) shall apply to all current and future offers made by us, Südpack Medica SAS, Z.A. de Beaumont Nord, 61230 Coulmer, France, to all business relationships entered into by us, as well as to deliveries to companies, legal entities under public law or public law special funds (hereinafter referred to as "Customer"). Any general terms and conditions of sale of the Customer shall only form an integral part of the contract if and to the extent that we have expressly agreed to their applicability.
2. CONCLUSION OF THE CONTRACT
2.1 If our offers are not explicitly designated as binding or do not include a specific acceptance term, they are non-binding and noncommittal. A contract is only concluded with our written confirmation of the order or by delivery. In this case, delivery is deemed to be acceptance of the order.
2.2 The written sales contract is exclusively authoritative for to the terms of the contract, in particular for the specifications of the goods and services agreed between the parties. Its provisions contain the entire agreement between the contracting parties concerning the subject matter of the contract. Oral agreements and promises made by us prior to the conclusion of the contract are not legally binding and are substituted by the written contract, unless it is expressly stated that they remain binding. Any additions or amendments to the agreements, including these general terms and conditions, are only valid after our written confirmation. With the exception of our managing directors or employees holding a special authorization, our employees are not authorised to enter into oral agreements contradicting these general terms and conditions. In order to comply with the written form requirement, transmission by telecommunication media, in particular by fax or e-mail, is sufficient, provided that a copy of the signed declaration is transmitted.
2.3 The information on the subject of the delivery contained in our brochures, price lists, catalogues and our offer (e.g. weights, dimensions, tolerances and technical data) as well as our presentations of the same (e.g. drawings and illustrations) are only approximate and non-binding, except to the extent that exact conformity is required for use for the purpose intended by the contract. They do not constitute guaranteed essential characteristics, nor guaranteed adequate properties or functionalities, but rather descriptions or attributes of the goods or services. Customary deviations and changes which arise as a result of legal provisions or which constitute technical improvements are permitted provided they do not affect use for the purposes intended by the contract.
2.4 Samples and specimens are provided for illustrative purposes only and are not binding; their characteristics, properties, suitability and technical data are to be regarded as indicative and approximate only.
3. PRICE AND PAYMENT
3.1 Our prices for deliveries are ex works, excluding transport insurance, packaging, dispatch, statutory value added tax and in the case of export deliveries, customs duties and taxes, fees and other public taxes.
3.2 If the costs of raw materials, wages, energy or other costs for the supply and/or manufacture of products change significantly after the date of the order or the conclusion of the contract, both contracting parties are entitled to demand a reasonable adjustment of the prices, taking into account the change in price factors, if deliveries are to be made more than four months after the conclusion of the contract.
3.3 Payment is due without any deduction on delivery. If no payment term has been expressly agreed, the customer is in delay of payment 14 calendar days after delivery and invoicing, without the need for a reminder. The date of receipt of payment by us is decisive. Payment by cheque or bill of exchange is excluded, unless agreed separately on a case-by-case basis.
3.4 We shall be entitled to perform outstanding deliveries or services only against advance payment or security deposit if, after conclusion of the contract, we become aware of circumstances which could significantly affect the creditworthiness of the Customer and put at risk the payment by the Customer of our claims arising from the contractual relationship in question. In particular, the customer's solvency will be considered to be significantly affected if an application for the opening of insolvency proceedings, including safeguard proceedings, is filed by the Customer or by a third party, or if the Customer does not pay or only partially pays within the stipulated period.
3.5 The Customer may only offset our claims against counterclaims or withhold payments on the basis of counterclaims if the counterclaims are undisputed or have become final and absolute or are in reciprocal relationship to our claims.
4. DELIVERY DATES
4.1 Unless a delivery date is explicitly agreed as binding, all delivery times are indicative only. If the shipment by us has been agreed, delivery times and dates shall relate to the time of handover to the carrier, freight forwarder or other third party responsible for transport.
4.2 We shall not be liable for any failure or delay in delivery insofar as such failure or delay is the result of force majeure or any other event that was not foreseeable at the time the contract was concluded and for which we are not responsible (e.g. disruptions of any kind in the company, difficulties in obtaining materials or energy, transport delays, strikes, legal lock-outs, shortages of labour, energy or raw materials, difficulties in obtaining the necessary administrative authorisations, administrative measures or non-delivery, non-conforming or late delivery by suppliers). Insofar as such events make delivery or performance significantly more difficult or impossible for us and the impediment is not merely of a temporary nature, we are entitled to withdraw from the contract. If the impediment is of a temporary nature, the delivery dates or performance shall be extended or the dates for delivery or performance shall be postponed by the duration of the impediment, plus a reasonable restart period. Insofar as the Customer cannot reasonably be expected to accept the delivery or service due to the delay, the Customer is entitled to cancel the contract by sending us a written declaration of cancellation without delay.
4.3 If we are delayed in delivering goods or providing a service or if it is impossible for us to deliver the goods or provide a service, for any reason whatsoever, our liability to pay damages shall be limited in accordance with Section 9 of these general terms and conditions of sale.
5. DELIVERY
5.1 Delivery shall be ex work from our factory or distribution warehouse (Incoterms 2020). If the Customer is in default of acceptance, the risk shall pass as soon as we inform the Customer that the goods are ready for dispatch. This applies irrespective of the place of performance and who bears the transport costs.
5.2 We will only insure consignments against theft, breakage, transport damage, fire, water or other insurable risks at the express request and expense of the Customer.
5.3 Partial deliveries are permissible if the Customer is able to use the partial delivery for the purpose intended by the contract, if the delivery of the remaining goods ordered is assured and if this does not result in any considerable additional work or additional costs for the Customer (unless we declare ourselves prepared to bear these costs).
5.4 If deliveries and/or services are agreed in the form of call-off/framework orders (successive delivery contracts), the Customer is obliged to call off and accept the entire or the remaining contractual quantity, unless otherwise agreed in each individual cases, at the latest after the expiry of 3 months from the first partial delivery or, if no partial delivery has been made previously, at the latest after the expiry of 6 months after conclusion of the contract. If the Customer does not fulfil this obligation, we shall be entitled, after expiry of a reasonable grace period set by us, to deliver and invoice the Customer the remaining contractual quantity at the Customer's expense and risk.
5.5 If the Customer is in delay with acceptance, we shall be entitled to charge storage costs amounting to 0.25% of the invoice value of the delivery items to be stored for each week of delay, but in total up to a maximum of 5% of the invoice value. Our right to prove further damages remains unaffected. In this case, the lump sum shall be offset against the further damages.
6. RETENTION OF TITLE
6.1 Our delivered goods remain our property until they have been paid for in full. Goods which have not been paid for in full by the Customer prior to dispatch remain our property until the Customer has fulfilled all obligations and claims arising from the entire business relationship with the Customer.
6.2 The Customer alone shall bear the risk of loss or deterioration of the goods subject to retention of title, whatever the cause, as well as any damage they may cause. He shall store and separately identify the goods subject to retention of title. He shall insure the goods subject to retention of title against fire, water damage, burglary and theft at his own expense. Upon our request, the insurance policy shall be sent to us for review. The Customer hereby assigns to us in advance any claims against the insurance company. We hereby accept this assignment.
6.3 In the event of attachment or other third party claims regarding the goods subject to retention of title, the Customer shall immediately inform us. The Customer shall bear all costs incurred for the release of the seizure or the removal of the access as well as for the restocking of our delivered goods.
6.4 If the Customer defaults on payment, we shall be entitled to rescind the contract and require the Customer to return the goods subject to retention of title. In this case, the value of the goods taken back shall be set off against the balance of the secured debt by way of payment. The goods shall be returned at the Customer's expense and risk.
6.5 If the goods subject to retention of title are fungible goods, the retention of title shall apply to goods of the same nature held by the Customer or on behalf of the Customer, up to the amount of the outstanding debt owed by the Customer.
6.6 The installation of goods subject to retention of title with other goods does not preclude our rights if these goods can be separated without damage.
6.7 In the event of disposal or loss of the goods or part of the goods, ownership shall pass to the resale price or part of the resale price, the Customer's claim against the sub-purchaser, the insurance indemnity or any other substitute subrogated to the property.
6.8 The Customer hereby assigns to us by way of security all claims arising from the resale or other legal grounds (insurance, unlawful act) in respect of the goods subject to retention of title.
6.9 The Customer shall refrain from pledging the goods sold subject to retention of title as security, collateral, pledge or any other form of guarantee.
6.10 If the law of the country in which the delivery item is located does not allow us to agree a retention of title or allows it only in a limited form, we may reserve other rights to the delivery item. The Customer is obliged to cooperate in all measures necessary (e.g. registration) for the enforcement of the retention of title or other rights replacing the retention of title and for the protection of these rights.
7. LIABILITY FOR DEFECTS
7.1 If one of our products or services proves to be defective, we shall rectify the defects within a reasonable period of time at our discretion by either repairing the defect or providing a replacement delivery (subsequent performance). In the event of replacement delivery, the Customer shall return the defective goods to us. We shall bear the costs of repair or replacement, in particular transport, labour and material costs; this shall not apply if the costs are increased because the goods delivered are to be found at a location other than the intended use.
7.2 We shall be entitled to make repair or replacement conditional on the Customer paying the due purchase price. The Customer, however, shall be entitled to withhold a amount of the purchase price proportional to the defect.
7.3 The limitation period for claims for defects is 12 months calculated from delivery or, if acceptance is required, from acceptance. A claim for damages for breach of the obligation to provide subsequent performance (repair or replacement delivery) shall only exist if a) the Customer has demanded subsequent performance within the above-mentioned 12-month limitation period and b) we have breached our obligation to provide subsequent performance. The 12-month limitation period referred to in this clause 7.3 shall not apply in the event of fraudulent misrepresentation of the Customer, fraudulent intent and for claims for damages referred to in clauses 9.1 to 9.3; in these cases, the statutory limitation periods shall apply.
7.4 If the defect is based on a defective third-party product, we are entitled to assign our warranty claims against our supplier to the Customer. In this case, the above-mentioned provisions may only be invoked against us if the assertion of the above-mentioned claims against the supplier was unsuccessful or is futile, through no fault of the Customer for example due to the insolvency of the supplier.
8. MINIMUM WAGE
We ensure that our employees are granted at least the working conditions, including the minimum wage, to which they are entitled under the applicable legal provisions in their current version. This obligation includes in particular the obligation to pay wage claims when they fall due. Insofar as we use third parties (subcontract or suppliers) to fulfil our obligations, we will select them carefully and endeavour to ensure that they are also bound by contract to fulfil their obligations.
9. LIABILITY
9.1 Unless otherwise provided for in the contract or by mandatory provisions of applicable law, our liability and that of our directors and officers arising out of or in connection with a contract, and irrespective of the legal ground, is limited as follows: Liability for any indirect or consequential damages (e.g. loss of earnings, loss of profit or revenue, damages due to business interruptions, loss of goodwill, or other financial loss, etc.) and punitive damages is excluded. For all other direct damages, including any damages or costs relating to the performance by a third party of any of our obligations (including the cost of obtaining a substitute supplier or product), our liability is limited to the purchase price paid by the customer for the delivery or service that caused the damage.
9.2 In the case of fraud or gross negligence on our part, these limitations of liability do not apply.
9.3 Liability for defective products remains unaffected. However, in accordance with article 1245-14 of the French Civil Code, any liability on our part is expressly limited for any damage caused by a defective product to goods intended for professional use under the conditions set out in point 9.1 above.
9.4 Claims for damages under clause 9.1 to 9.3 above and all other rights and remedies of the Customer shall become time-barred according to the statutory periods.
9.5 You acknowledge that our prices take account of the above limitations of liability, which reflect the allocation of risks agreed by the parties. These limitations also apply to recourse by your insurers against us or against our insurers, whether direct or subrogated.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 We reserve all proprietary rights and copyrights to our offer documents, illustrations, drawings, calculations, samples and other objects and documents. Without our express consent, these objects or their contents may not be made accessible to third parties, nor may they be published, used for other purposes or reproduced by the customer himself or by third parties. The customer is obliged to return these objects and documents to us in their entirety on request and to destroy any copies made if they are no longer required in the normal course of business or if the negotiations do not lead to the conclusion of a contract. This shall not apply for the recording of data made available electronically for the purpose of routine data backup.
10.2 In the case of deliveries based on drawings, models or specifications provided by the Customer, the Customer shall indemnify us against all claims by third parties in respect of intellectual property, unless the Customer is not responsible for the infringement of intellectual property rights. In the event of a breach of contract by the customer, the customer's intellectual property rights shall not prevent us from using the goods.
11. INFORMATION AND ADVICE, TOLERANCES
11.1 Any information and recommendations provided shall be non-binding and without any liability unless we have expressly undertaken to provide information and recommendations. In particular, our information and recommendations do not release the Customer from carrying out his own checks and tests to determine whether the delivery item is suitable and appropriate for the technical or economic purposes intended by the Customer. The Customer is also responsible for complying with legal and administrative regulations when using the delivery item.
11.2 Production or material-related deviations between the quantity delivered and the quantity ordered are permissible up to +/- 15% for made-to-order production and up to 20% for small orders (up to 10,000 m² or up to 1 tonne) and for technically difficult executions. For composite polymer films, production or material-related deviations between the quantity delivered and the quantity ordered are permissible in accordance with the following scale:
Order size Permitted smaller and larger delivery quantities
<= 5‘000 m2 -0% to +50%
<= 20‘000 m2 -25% to +25%
> 20‘000 m2 -10% to +10%
12. FINAL PROVISIONS
12.1 The legal relationship between the Customer and us and all individual contracts concluded between the Customer and us are subject to French law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.
12.2 The place of performance for all obligations of both parties to the contract is our registered office.
12.3 The place of jurisdiction for all disputes arising from our business relationship with the Customer is our registered office. We are also entitled to assert our claims against the Customer in the courts competent for the place of general jurisdiction of the Customer.
Last update: January 2024