- Application of the general terms and conditions of sale
These general terms and conditions of sale define the rights and obligations of Société Nouvelle du Littoral and its clientele. Consequently, they constitute the legal basis of contracts for the sale of any products that have not been the subject of specific express agreements and prevail over any of the customer’s general terms and conditions of purchase. They supersede any contrary clauses, however they may be formulated by the customer, unless expressly approved by Société Nouvelle du Littoral. Société Nouvelle du Littoral is bound only by terms and conditions to which it expressly agreed when accepting the customer’s firm and definitive order. An order implies the customer’s unconditional acceptance of these general terms and conditions of sale.
Société Nouvelle du Littoral’s express prior acceptance of the order in writing is required for proper conclusion of the contract; and any changes made by the customer in the contract — as well as any assignment or transfer to a third party by the customer of its rights and/or obligations under said contract — also require Société Nouvelle du Littoral’s express prior agreement thereto in writing.
Société Nouvelle du Littoral reserves the right to change these general terms and conditions at any time, particularly to take legislative and regulatory changes into account. The applicable version shall be that which is in effect on the date that Société Nouvelle du Littoral validates the order.
- Delivery times
Unless otherwise agreed, delivery times are given merely as general indications. Late delivery does not constitute grounds for rescission or termination of the contract or for an award of damages.
The customer shall ensure that the information provided on the delivery site is accurate and accessible without risk for sales that include transport.
- Prices – terms and conditions for billing and payment
Sales are concluded at the prices and terms and conditions in effect at the time of placement of the order. The prices of merchandise do not include taxes and unpackaged products and are ex-works prices. They are payable in euros. Discounts are not given for early payment. All the invoices are payable pursuant to the terms and conditions specified therein.
An acknowledgement of receipt of the order, along with a delivery slip that specifies the contents will be included in a summary invoice, is provided for each delivery.
However, a customer that regularly places orders, and whose creditworthiness is established, may ask for deferred payment if such has been the subject of a negotiation in compliance with the rules set forth in the French Commercial Code.
An order is deemed to be paid for only when Société Nouvelle du Littoral has received definitive payment of the amount owed in full.
- Customs, insurance, handling
Unless otherwise agreed (particularly pursuant to rules applicable to the Incoterm indicated in the purchase order or another contractual document specifying the particular terms and conditions), all insurance, customs and handling operations are at the customer’s expense and risk.
5. Late payment and transfer conditions
In the event of a default in payment of invoices issued by Société Nouvelle du Littoral, default interest will be charged at a rate equal to the interest rate applied by the European Central Bank (ECB) to its most recent refinancing transaction plus 10 percentage points, from the due date until definitive payment.
Moreover, for each invoice that is not paid by the due date, the customer shall automatically owe a legal fixed indemnification for collection costs of forty euros (€ 40), and, in addition to default interest, shall pay Société Nouvelle du Littoral additional indemnification, upon documentation, when the collection costs incurred exceed the amount of this fixed indemnification.
Also, Société Nouvelle du Littoral reserves the right to suspend all of the orders in progress until payment of the amounts owed, without prejudice to any other course of action.
Unless otherwise agreed, in the event of non-payment by the due date, the contract may be rescinded or terminated as a matter of absolute right forty-eight (48) hours after a formal notice sent by Société Nouvelle du Littoral by email has gone unheeded, without a need to initiate legal proceedings.
In all of the aforesaid situations, any sums that are, or are to fall due, for any reason whatsoever will become immediately due and payable. Payments must be made to the head office of Société Nouvelle du Littoral. Sales to a customer whose head office is located abroad are payable by bank transfer, remittance or documentary credit.
Transfers must be made by the customer’s bank or the bank of one of its subsidiaries or its parent company. In all situations other than payment by the customer’s bank, an official document showing the link existing between the customer and the subsidiary or parent company will be required (extract from the trade registry, operating license, etc.). Société Nouvelle du Littoral does not, and will not, accept payment through a physical person or an intermediary company that has no capital link with the company that placed the order.
- Transfer of risks and ownership – Reservation of ownership
The transfer of risks of loss, deterioration or damage to merchandise occurs upon the arrival thereof at its destination (before unloading) for sales that include transport; and upon removal of the merchandise from Société Nouvelle du Littoral’s site for ex-works sales, without prejudice to Société Nouvelle du Littoral’s right to invoke the reservation of ownership clause specified below or use its right of retention. However, Société Nouvelle du Littoral’s liability is limited to the risks of loss, deterioration or damage to merchandise, to the exclusion of any other risk. Société Nouvelle du Littoral declines all liability for other damage incurred or caused during the transport, such as, for example, injury inflicted on third parties by the merchandise, late delivery, etc. In accordance with the provisions of article L 133-3 of the Commercial Code, the customer is obligated to notify the carrier of any justified protests by extrajudicial document or by registered letter within three (3) days, public holidays excluded, following receipt of the merchandise, on pain of loss of its rights vis-à-vis both the carrier and Société Nouvelle du Littoral, with it being specified that the customer shall also state any reservations at the same time, and do so pursuant to the same formalities in the event of non-conforming products. No protest or claim will be considered in the event of the customer’s failure to comply with these formalities.
Unless otherwise agreed, Société Nouvelle du Littoral retains full ownership of the goods that are the subject of the contract until full payment of the price in principal and ancillary items. A default in payment by the due dates may entail repossession of these goods.
- Unforeseen circumstances – Force majeure:
In the event of a change in circumstances that was unforeseeable at the time of conclusion of the contract, in accordance with article 1195 of the Civil Code, a party that is not willing to assume a risk in execution that would be excessively onerous may ask the other contracting party for a renegotiation of the contract.
If the renegotiation is successful, the parties shall promptly draw up an amendment to the contract formalizing the result of the renegotiation.
If the renegotiation fails, the parties, in accordance with the provisions of article 1195 of the Civil Code, may jointly agree to ask the judge for rescission or termination of the contract, or an adaptation thereof.
If the parties fail to agree to refer the matter to the judge within ten (10) days following the finding of this disagreement, the most diligent party may ask the judge for a revision, rescission or termination of the contract.
If, due to a situation of force majeure, Société Nouvelle du Littoral cannot effectuate its deliveries, execution of orders that Société Nouvelle du Littoral has confirmed will be suspended for the time during which it is unable to meet its commitments.
The following situations are deemed to constitute force majeure — regardless of whether the particular situation is understood herein to be such in a broader sense than that given by French law and jurisprudence — without necessarily being limited thereto: natural disasters, fires, explosions, floods, devastations, sabotage, major accidents affecting Société Nouvelle du Littoral’s products and/or premises, strikes, lock-outs, stoppages of means of transport, riots, wars or other armed conflicts, epidemics or pandemics, quarantines, embargos, legal or regulatory provisions affecting the relationships between France and another State that, in particular, issues an import or export ban.
- Precautions for use:
All products developed by Société Nouvelle du Littoral comply with the standard contractually agreed upon with the customer.
The products must be kept away from heat and with the lowest possible hygrometry. They must be moved carefully to avoid any risk that they or their packaging might break or be damaged. Société Nouvelle du Littoral shall not be liable for a customer’s failure to comply with the instructions regarding transport, storage or use of the products. The customer acknowledges that it has read the safety data sheet (available on http://www.standard-sand.com) regarding the merchandise.
- Société Nouvelle du Littoral’s liability:
Société Nouvelle du Littoral’s liability is strictly limited to the sale of products that comply with the customer’s specifications and in accordance with the contract.
By virtue of its professional competence in its specialty, the customer is able to precisely define its needs and determine the range of products appropriate for meeting those needs.
Société Nouvelle du Littoral is liable only for direct damage to the customer’s property for reasons imputable to Société Nouvelle du Littoral in execution of the contract. Under no circumstances shall Société Nouvelle du Littoral be required to indemnify consequential or indirect loss such as, in particular, operating loss, loss of profit or opportunity, commercial injury, or loss of earnings.
Société Nouvelle du Littoral disclaims any and all liability:
– for use by the customer or Société Nouvelle du Littoral of technical documents, information or data issued or imposed by the customer.
– for any delays or problems in delivery after the transfer of ownership of the products or due to a situation of force majeure;
– for defects that might partially, or in their entirety, result from deteriorations or accidents imputable to the customer or a third party;
– in the event of modification or abnormal or atypical use of the product; or a use that is not in accord with its intended purpose, the state of the art, or Société Nouvelle du Littoral’s precautions or recommendations for its use;
– in the event of failures, negligence or omissions by the customer or third parties related to execution of the contract;
– in any of the other situations of guarantee exclusion specified in these general terms and conditions of sale or another contractual document.
If penalties and/or indemnifications are mutually agreed to, they shall have the value of a fixed indemnification, in full discharge of liability, and shall exclude any other penalty or indemnification.
Société Nouvelle du Littoral’s civil liability for any reasons whatsoever will be limited to the amount of the price billed for the disputed products.
The customer guarantees that its insurers or third parties in a contractual relationship with it will waive the pursuit of any recourse against Société Nouvelle du Littoral or its insurers beyond the limits and exclusions set forth hereinabove.
- Intellectual property rights:
The customer acknowledges that the sale of products does not imply the assignment or licensing of trademarks or other intellectual property rights held by Société Nouvelle du Littoral, which remain entirely and exclusively its property.
The customer is prohibited from removing, modifying or altering the trademarks and other distinctive signs of Société Nouvelle du Littoral in any way whatsoever.
Unless otherwise agreed, any promotion or resale of products by the customer shall occur only under the brand and/or commercial name to which the parties had contractually agreed, and that shall be so in all commercial documents (prospectuses, purchase orders, delivery slips, invoices, etc.), customs documents and communication media, as well as on the Internet.
The customer’s failure to comply with this prohibition will constitute serious misconduct on its part, which will entail the automatic and immediate rescission or termination of the contract if such had not already occurred, without a need for a formal notice or legal proceedings, for reasons imputable to the customer and without indemnification, with Société Nouvelle du Littoral having good grounds to claim damages for redress of the injuries incurred.
- Confidentiality:
The parties reciprocally agree to a general obligation of confidentiality regarding any oral or written information, regardless of the nature and medium thereof, that is exchanged in the context of preparation and execution of the contract, except for information that is generally known to the public or becomes known by means other than through the customer’s fault or act.
The customer commits to take all necessary measures to ensure compliance with this obligation of confidentiality throughout the duration of this contract and even for ten (10) years thereafter, and to impose said compliance on all of its employees.
This is an obligation of specific result.
- Rescission or termination:
If a party breaches any of its contractual obligations, the rescission or termination of the contract will automatically occur ten (10) days after a notice sent by registered letter and by email has gone unheeded, unless the contract otherwise stipulates that rescission or termination will occur immediately or after a period of forty-eight (48) hours. Notification by registered letter shall be deemed to have been effectuated on the date of first presentation of the letter to its addressee.
The rescission or termination will entail early payment of all of the sums still owed by the customer in any respect whatsoever.
- Applicable law and attribution of jurisdiction/ arbitration:
Sales realized pursuant to these general terms and conditions of sale are governed by French law.
The parties shall attempt to reach an amicable agreement before taking any legal action.
Any dispute or litigation between Société Nouvelle du Littoral and a customer that has its head office is in France, shall be submitted to the Commercial Court of Narbonne (11) unless otherwise specified by law.
Any dispute or litigation between Société Nouvelle du Littoral and a customer that has its head office outside of France shall be submitted to the International Chamber of Commerce in Paris for arbitration pursuant to its arbitration rules.