General Terms of Sale.

General Terms of Sale.

GENERAL TERMS OF SALE (as of 2021/07/01)

1. Any order of products (hereinafter the “Products”) and/or services (hereinafter the “Services”) to ResiCare SAS (hereinafter “ResiCare”) made by a professional client (hereinafter the “Client”) implies unconditional acceptance by the Client of all the stipulations of these general terms of sale, which take precedence over any clause appearing on the correspondence or the legal and commercial documents of the Client and in particular its general terms of purchase, regardless of when they were brought to the attention of ResiCare.

 

2. The applicable prices are those indicated in the sales quote issued by ResiCare or in the contract signed with ResiCare for the supply in effect at the time of the order. The delivered Products shall be not returned or exchanged.

 

3. Any order may be reduced or cancelled by ResiCare depending on the availability of Products and/or Services. However, all orders accepted by ResiCare will be delivered in accordance with the order confirmation provided by ResiCare. No modification or cancellation of orders by the Client will be taken into account by ResiCare without the express consent of ResiCare. ResiCare undertakes, as far as possible, to ship all the Products and/or to provide all the Services ordered by the Client, without incurring any liability or penalties due to the delay in these shipments or the fact that they are incomplete. The unavailability of a Product and/or a Service resulting from a manufacturing interruption, a shortage or any other circumstance, cannot have any effect on the rest of the order, nor engage in any way the responsibility of ResiCare.

 

4. The expected delivery dates are specified to the extent possible but are only indicative and do not bind ResiCare, except otherwise accepted in writing by ResiCare. Failure to comply with the planned delivery dates does not give rise to any right to compensation or non-payment of the price of the Products delivered and/or Services provided, nor to any other compensation of any kind for the benefit of the Client.

 

5. The Client must check the condition of the Products at the time of delivery. In case of missing, damaged, delayed products, etc., the Client must (i) note its detailed reservations in writing on the transport document, (ii) confirm them to the carrier by registered letter with acknowledgement of receipt within three (3) days of the delivery, and (iii) immediately notify ResiCare by sending a copy of the letter sent to the carrier so that it may exercise its recourse. The Client will be held liable for any harm suffered by ResiCare due to the Client’s failure to comply with to the procedure set out above and therefore waives any recourse against ResiCare.

 

6. In addition to claims made to the carrier in accordance with the procedure described above, any claim related to the Products and/or Services sent to ResiCare must be made by registered letter with acknowledgement of receipt, within seven (7) days of the date of receipt of the Products and/or the provision of the Services. The Client shall prove that the Products delivered and/or the Services provided do not conform. ResiCare reserves the right to perform any on-site verification. Under no circumstances may the Client return Products without first obtaining the written consent of ResiCare. ResiCare may choose either to replace the non-conforming Products or to establish a credit in favour of the Client equal to the price paid by the Client for the non-conforming Products and/or Services.

 

7. Unless otherwise agreed in writing, the Products and/or Services are payable by direct debit or bank transfer 30 days after the end of the month from the date of the invoice, regardless of the method of delivery. No discount is offered for cash payment. A payment made differently does not entail any modification or novation to the terms of payment. ResiCare reserves the right to demand early payment of all or part of the order.

 

8. Failure to pay on the due date entails billing of late fees at a rate of 5% per year and a flat rate compensation for recovery costs of EUR 40 per invoice. Failure to pay a single invoice shall immediately and automatically, without prior notice, render due and payable all invoices from ResiCare, even those not yet due. Moreover, ResiCare may, in case of total or partial non-payment on the due dates, suspend any delivery of Products and/or provision of Services until receipt of payments due or require advance payment or any other form of guarantee of payment for future orders from the Client.

 

9. Unless otherwise agreed in writing, the prices are FCA ResiCare Warehouse Incoterms® 2020 and the Products are shipped at the expense and risk of the Client.

 

10. The Products are sold under retention of title: the transfer of ownership is subject to the full payment of the price in principal and in interest, at the agreed due date, by the Client. The Client undertakes to maintain and insure the Products for the benefit of ResiCare, against all the risks that they may incur or cause starting from their delivery. The Client is authorised to resell the Products for the normal requirements of its business. However, if the Client does not pay an invoice on its due date, the authorisation to use or resell the Products will be automatically terminated. In case of failure to pay by the due date all or part of the price of the Products, ResiCare reserves the right to immediately repossess the Products, with the understanding that the Products still held by the Client will be presumed to be the Products that remain unpaid. All costs for recovery of the Products and repair of the Products shall be borne by the Client. Restitution of the unpaid Products shall be due by the defaulting Client at its own costs and risks, upon notice from ResiCare sent by registered letter with acknowledgement of receipt.

In the event that ResiCare repossesses the Products in application of this clause, it will be exempt from returning any advance payment received on the price.

 

11. The discounts resulting from certain sales and/or subject to periodic performance conditions are due to the Client only if, on the date scheduled for their payment, the outstanding debts have been fully settled to ResiCare.

 

12. The Client undertakes to comply with the applicable laws and regulations on supply, sale, transfer, exportation, re-transfer or re-importation of Products, including economic sanctions, export control rules and trade embargoes (“Sanctions”).

 

The Client, directly or indirectly, must not, through its actions, expose ResiCare to a risk of violating the applicable Sanctions or the policy of Michelin Group, which is available at: https://www.resicare.com/export-control-and-embargo-policy.

 

13. ResiCare is liable under conditions of ordinary law only for direct material damages. RESICARE'S LIABILITY IS CAPPED, ALL DAMAGES COMBINED, AT THE AMOUNT OF THE ORDER CONCERNED FOR THE PRODUCTS AND/OR SERVICES. The conditions communicated by ResiCare concerning in particular the storage, choice, use and limits of use of the Products must be observed by the Client. The Client must ensure that its employees receive appropriate training. In all cases, the use of the Products will be the sole responsibility of the Client.

 

14. Any sale of Products and/or Services does not result in the transfer of any intellectual property rights to the Client. No rights or license are granted on any intellectual property rights under these General Terms of Sale or any subsequent contracts beyond the non-exclusive, limited right to use the Products and the deliverables of the Services purchased from ResiCare for their intended purpose. Except otherwise expressly set forth in the applicable law, the supply or use of the Products, the deliverables of the Services and/or any equipment made available as part of the Services is conditional upon the Client’s undertaking not to seek, by reverse engineering, disassembly or any other analysis, to obtain the methodology, composition, formulation, components, processes, source code or any other confidential information relating to the Products, the deliverables of the Services and/or any equipment made available as part of the Services.

 

15. The Client is informed that, within the context of management of operations related to the contractual relationship with its clients, personal data are processed by ResiCare, as data controller in accordance with Law No. 78-17 of 6 January 1978, modified and any updates, as well as the texts adopted within the European Union. The data processed are essential to this processing and are used by the concerned departments at ResiCare and, if applicable, its subcontractors and service providers, some of which may be located outside of the EU. The data concerned are stored for the duration of the contractual relationship, increased by the legally required periods. In case of transfer of data outside of the EU, rules ensuring the data protection and security have been put in place. The Client and its employees can review it by consulting the notice made available upon simple request to ResiCare. Under the conditions set forth by law, the Client and its employees have a right of query, access, rectification, a right to portability, restriction of processing and to object for legitimate reasons, as well as the right to set guidelines related to the future of their personal data after death. The Client and its employees may exercise their rights by writing to ResiCare SAS, 3 Rue de la Charme 63100 Clermont-Ferrand, administratif@resicare.com. Clients and their employees may, in the event of a dispute, lodge a complaint with the CNIL (French Data Protection Authority), the contact details of which can be found at the following address: https://www.cnil.fr.

 

16. Each party shall comply with, and shall ensure that all its commercial partners (clients and suppliers) and sub-contractors comply with, all laws and regulations applicable to their activities including but not limited to those relating to anti-corruption, anti-money laundering, fraud, health and safety, environment, labour law, human rights, harassment, and discrimination. Each party shall conduct its business with integrity, ethics and transparency and adopt, promote and comply with a series of fundamental rules in the areas of human rights, labour, environmental, ethics, fraud and anti-corruption standards. In particular, each Party shall in its activities: (i) not resort to any child labour or any other form of forced labour; (ii) not discriminate in any way when hiring and managing personnel; (iii) not resort to any mental or physical coercion, nor physical punishment with regards to discipline; (iv) respect the laws in force, in particular with regards to the management of work hours, pay, training, trade union rights, hiring, hygiene and safety; (v) abide by the principles of honesty and equity in the relationships with customers, shareholders and partners; (vi) respect the rules of fair competition; (vii) apply a zero-tolerance policy about corruption in any way; (viii) protect the company's assets, prevent and fight against fraud; (ix) respect the strictest confidentiality; (x) respect the environment laws and regulations; and (xi) undertakes to implement rules and processes necessary to ensure and regularly evaluate the respect of the obligations set out in this clause. Any violation to this clause by a party shall entitle the other party to terminate, without incurring any liability, charges, damages or compensation whatsoever and without having to file any claim before any court of competent jurisdiction, terminate any and all orders and contracts with the breaching party, with either immediate effect or subject to a period of notice (choice being made at the other party’s sole discretion) by giving notice in writing to the breaching party.

 

17. These General Terms of Sale and subsequent contracts between ResiCare and the Client shall be governed by and construed in accordance with the laws of France, excluding its conflict of laws rules. All disputes arising out of or in connection with the validity, interpretation, performance or non-performance, interruption or termination of these General Terms of Sale and subsequent contracts shall be submitted to mediation in accordance with the mediation rules of the CMAP (Centre for Mediation and Arbitration of Paris, Paris Chamber of Commerce and Industry - 39, avenue Franklin D. Roosevelt, 75008 Paris, France), of which the Parties are aware and undertake to accept, unless an alternative procedure and location is agreed upon by the Parties within fourteen (14) days of a Party’s request for mediation. If the Parties do not reach a written agreement resolving their dispute within a period of four (4) months from the request for the implementation of the mediation procedure, either Party may decide to refer the dispute only to the competent court within the jurisdiction of the Court of Appeal of Paris (France) to whose jurisdiction the Parties consent, notwithstanding the presence of multiple defendants or claims for indemnification.

 

18. Upon request of ResiCare, the Client accepts to sign these General Terms of Sale and subsequent contracts by electronic signature where and to the extent recognized by applicable law. An electronic signature made through the means of Electronic Transmission as defined hereinafter shall be as legally binding as a physical signature. “Electronic Transmission” shall mean any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process, provided that the transmission is secure and all actions are tracked and recorded by a reliable system, such record being able to be retained, retrieved and reproduced by the recipient and the sender.