1-DEFINITIONS
SCPC COMPTOIR HAMMAMI means the party which places the order for the purchase of Products (as defined below) or Tools (as defined below).
The Seller means the party with which the order for the purchase of Products (as defined below) or Tools (as defined below) is placed.
Products means the production goods, products, works and services covered by the Purchase Contract (as defined below) including without limitation all production and service, parts, components, assemblies, accessories, raw materials, portions, items, repairs, replacements and substitutions thereof.
2-APPLICABILITY
2.1 These Purchase Conditions apply to all legal relationships between SCPC
COMPTOIR HAMMAMI (hereafter caller: SCPC COMPTOIR HAMMAMI) and the S u p p l i e r (hereafter called: “the Seller”), even after termination of the legal relationship.
2.2 It is only possible to deviate from these Purchase Conditions in writing.
2.3 Any contrary conditions which are used by the Seller are only binding on SCPC COMPTOIR HAMMAMI if and insofar as SCPC COMPTOIR HAMMAMI has expressly agreed to such in writing.
2.4 If SCPC COMPTOIR HAMMAMI agrees in writing to the applicability of one or more contrary conditions, even if such is not expressly stated, these Purchase Conditions will remain in effect for the rest.
2.5 The fact of accepting our orders involves relinquishing the general conditions of sale of the seller, the adoption of the special conditions of the order and the present general conditions.
3-ORDERS
3.1 Orders, including changes and additions thereto, are only binding for SCPC
COMPTOIR HAMMAMI insofar as the Purchase Department of SCPC COMPTOIR HAMMAMI has agreed to or confirmed such in writing.
3.2 An offer, in any form whatsoever, which the Seller makes to SCPC COMPTOIR HAMMAMI, is an irrevocable offer with regard to the prices, quantities, delivery times and other essential components of the agreement.
3.3 SCPC COMPTOIR HAMMAMI has the right (but not the obligation) to revoke all orders it has placed with the Seller if the order(s) is/are not accepted by the Seller in writing within four days after the date of the date of the order(s). SCPC COMPTOIR HAMMAMI is not liable for any damage which the Seller might suffer consequently.
4-QUALITY AND DERSCRIPTION
Subject to the other provisions of the order and the related technical specification, the products to be delivered must:
a) With regard to quantity, description and quality, be in accordance with the
specifications of the order.
b) be made of sound materials and be properly manufactured.
c) be equal in all respects to the sample or models which have been made available or provided by SCPC COMPTOIR HAMMAMI and/or the Seller.
d) be fully suited for the purpose indicated to the Seller.
5-INSPECTION AND TESTING
5.1 Before shipment the Seller will, if such is common with the products in question,
carefully inspect and test whether the products are in accordance with what has
been agreed. If SCPC COMPTOIR HAMMAMI desires such, the Seller will send it notice in due time regarding the time and place of such test to enable it to be present for such inspection and test.
5.2 The Seller will send further SCPC COMPTOIR HAMMAMI, upon request, a certified copy of its inspection and test report. If SCPC COMPTOIR HAMMAMI desires such and has informed the Seller of such, the Seller is to have the inspection and test carried out by SCPC COMPTOIR HAMMAMI or by an independent inspection institute designated by SCPC COMPTOIR HAMMAMI, at the Seller ‘s expense.
5.3 If upon any inspection or test pursuant to provisions of the preceding paragraph SCPC COMPTOIR HAMMAMI determines that the products to be delivered are not in accordance with the description in the order, or that it is likely that upon completion of the manufacturing process such will not be the case, SCPC COMPTOIR HAMMAMI will immediately inform the Seller hereof.
5.4 Without prejudice to the provisions of Articles 6 and 9, the Seller is then bound to take all necessary measures to still meet the technical specifications described in the order and the provisions of the purchase agreement.
5.5 The Seller has the obligation to archive all the information related to the deliveries and to SCPC COMPTOIR HAMMAMI. This information will be used in case of litigation among the parties.
6-DELIVERY
6.1 In the event of transport of products, the Seller is to ensure that the products are properly packed and secured in such way that the products will reach the destination in good condition. The Seller will take out adequate insurance to SCPC COMPTOIR HAMMAMI’s satisfaction against risks that may reasonably be expected during transport.
6.2 The products will be transported by the Seller or sent for transportation to the agreed location or locations in the manner set out in the order or agreed thereafter.
All the details of the delivery must be communicated to SCPC COMPTOIR HAMMAMI by the Seller at least 48 hours before the boarding date.
6.3 The quantities defined in the order of SCPC COMPTOIR HAMMAMI are the only valid ones. An over or under quantity without a written confirmation from SCPC COMPTOIR HAMMAMI is not acceptable. The additional delivered quantities can be returned to the seller at the seller’s expense.
The partial deliveries without prior written approval by SCPC COMPTOIR HAMMAMI is not accepted.
6.4 The method of packaging of every product has to be provided by the Seller and approved by SCPC COMPTOIR HAMMAMI. The type of packaging has to respect the norms and the climatic conditions of Tunisia. All the corresponding international norms will have to be respected.
The Seller will have to notify SCPC COMPTOIR HAMMAMI, by writing, of all the precautions to take to guaranty the good progress of the transport and storage.
On every parcel or pallet, the Seller has to mention:
The gross weight
The net weight
Details of the content
The references of the order
The direction of the position of the parcel or pallet and its manipulation (openness)
The level of fragility of the product
The delivered products have to be clearly identified on the packing by indicating at least:
Identification of the product (with a symbol of danger)
The designation of the product
N° of the order
Quantity
The number of the batch Expiry date
The Seller is required to deliver the following technical documentation, from the delivery of the first order, and in three copies in French or otherwise in English:
Technical characteristics
Safety Data Sheets
Conditions of handling, of storage, of use
Reference of the products (identification number)
The type and unity of packaging Besides the Seller will attach to every delivery the following documents:
The number of the batches of the products’ manufacturing and the date of
manufacturing A certificate guaranteeing conformity to the technical specifications
7-DELIVERY DATE
7.1 The Seller will deliver the products on the date or immediately after the expiry of the time period for delivery stipulated in the order or otherwise agreed in writing and accepted by SCPC COMPTOIR HAMMAMI. If a time period for delivery has been agreed, such a period will commence on the date on which the order is confirmed or – if later
7.2 on the date on which SCPC COMPTOIR HAMMAMI has made the information, calculations, models, films, materials or tools that the Seller needs to commence performance of the order, available to the Seller.
7.3 Without prejudice to the provisions in the preceding paragraph, the Seller is obligated to immediately inform SCPC COMPTOIR HAMMAMI of any delay or expected delay in the performance of the agreement. At the same time, the Seller will inform SCPC COMPTOIR HAMMAMI as to what has caused the delay. If the Seller fails to give the aforementioned notices, the Seller will no longer be able to invoke a claim of force majeure in this respect.
7.4 If the products are not delivered in whole or in part at the agreed time, the Seller will automatically be in default, without the Seller being given notice of default.
7.5 The Seller will be liable for all damage which SCPC COMPTOIR HAMMAMI might suffer as a result of late or incomplete delivery.
7.6 SCPC COMPTOIR HAMMAMI has the right to dissolve the agreement in whole or in part on the basis of late or Incomplete delivery. SCPC COMPTOIR HAMMAMI is not liable for any damage which the Seller might suffer as a consequence.
7.7 Upon dissolution of the purchase agreement SCPC COMPTOIR HAMMAMI is entitled to return to the Seller at the Seller’s risk and expense the products which had already been delivered under the aforementioned purchase agreement, but which could no longer be used effectively and recover the payments that SCPC COMPTOIR
HAMMAMI may already have made to the Seller for said products.
7.8 If the Seller is in default, the Seller forfeits every week that the default continues an immediately claimable penalty of three percent (3%) of the invoice amount indicated in the invoice or the order, without prejudice to the right of SCPC COMPTOIR HAMMAMI to demand damages and/or performance.
8-FORCE MAJEURE
8.1 To the extent SCPC COMPTOIR HAMMAMI or Seller is unable to perform its obligations under the Purchase Contract due to an event or occurrence beyond its reasonable control and without its fault or negligence, such as: acts of God; restrictions, prohibitions, priorities or allocations imposed or actions taken by a governmental authority; embargoes; fires; explosions; natural disasters; riots; wars; or sabotage (together, “Force Majeure”), as soon as possible (but no more than one (1) full business day) after the occurrence, Seller or SCPC COMPTOIR HAMMAMI, as applicable, shall provide written notice describing such Force Majeure event and informing the other party of the anticipated duration of the event and the time within
The Seller means the party with which the order for the purchase of Products (as defined below) or Tools (as defined below) is placed.
Products means the production goods, products, works and services covered by the Purchase Contract (as defined below) including without limitation all production and service, parts, components, assemblies, accessories, raw materials, portions, items, repairs, replacements and substitutions thereof.
2-APPLICABILITY
2.1 These Purchase Conditions apply to all legal relationships between SCPC
COMPTOIR HAMMAMI (hereafter caller: SCPC COMPTOIR HAMMAMI) and the S u p p l i e r (hereafter called: “the Seller”), even after termination of the legal relationship.
2.2 It is only possible to deviate from these Purchase Conditions in writing.
2.3 Any contrary conditions which are used by the Seller are only binding on SCPC COMPTOIR HAMMAMI if and insofar as SCPC COMPTOIR HAMMAMI has expressly agreed to such in writing.
2.4 If SCPC COMPTOIR HAMMAMI agrees in writing to the applicability of one or more contrary conditions, even if such is not expressly stated, these Purchase Conditions will remain in effect for the rest.
2.5 The fact of accepting our orders involves relinquishing the general conditions of sale of the seller, the adoption of the special conditions of the order and the present general conditions.
3-ORDERS
3.1 Orders, including changes and additions thereto, are only binding for SCPC
COMPTOIR HAMMAMI insofar as the Purchase Department of SCPC COMPTOIR HAMMAMI has agreed to or confirmed such in writing.
3.2 An offer, in any form whatsoever, which the Seller makes to SCPC COMPTOIR HAMMAMI, is an irrevocable offer with regard to the prices, quantities, delivery times and other essential components of the agreement.
3.3 SCPC COMPTOIR HAMMAMI has the right (but not the obligation) to revoke all orders it has placed with the Seller if the order(s) is/are not accepted by the Seller in writing within four days after the date of the date of the order(s). SCPC COMPTOIR HAMMAMI is not liable for any damage which the Seller might suffer consequently.
4-QUALITY AND DERSCRIPTION
Subject to the other provisions of the order and the related technical specification, the products to be delivered must:
a) With regard to quantity, description and quality, be in accordance with the
specifications of the order.
b) be made of sound materials and be properly manufactured.
c) be equal in all respects to the sample or models which have been made available or provided by SCPC COMPTOIR HAMMAMI and/or the Seller.
d) be fully suited for the purpose indicated to the Seller.
5-INSPECTION AND TESTING
5.1 Before shipment the Seller will, if such is common with the products in question,
carefully inspect and test whether the products are in accordance with what has
been agreed. If SCPC COMPTOIR HAMMAMI desires such, the Seller will send it notice in due time regarding the time and place of such test to enable it to be present for such inspection and test.
5.2 The Seller will send further SCPC COMPTOIR HAMMAMI, upon request, a certified copy of its inspection and test report. If SCPC COMPTOIR HAMMAMI desires such and has informed the Seller of such, the Seller is to have the inspection and test carried out by SCPC COMPTOIR HAMMAMI or by an independent inspection institute designated by SCPC COMPTOIR HAMMAMI, at the Seller ‘s expense.
5.3 If upon any inspection or test pursuant to provisions of the preceding paragraph SCPC COMPTOIR HAMMAMI determines that the products to be delivered are not in accordance with the description in the order, or that it is likely that upon completion of the manufacturing process such will not be the case, SCPC COMPTOIR HAMMAMI will immediately inform the Seller hereof.
5.4 Without prejudice to the provisions of Articles 6 and 9, the Seller is then bound to take all necessary measures to still meet the technical specifications described in the order and the provisions of the purchase agreement.
5.5 The Seller has the obligation to archive all the information related to the deliveries and to SCPC COMPTOIR HAMMAMI. This information will be used in case of litigation among the parties.
6-DELIVERY
6.1 In the event of transport of products, the Seller is to ensure that the products are properly packed and secured in such way that the products will reach the destination in good condition. The Seller will take out adequate insurance to SCPC COMPTOIR HAMMAMI’s satisfaction against risks that may reasonably be expected during transport.
6.2 The products will be transported by the Seller or sent for transportation to the agreed location or locations in the manner set out in the order or agreed thereafter.
All the details of the delivery must be communicated to SCPC COMPTOIR HAMMAMI by the Seller at least 48 hours before the boarding date.
6.3 The quantities defined in the order of SCPC COMPTOIR HAMMAMI are the only valid ones. An over or under quantity without a written confirmation from SCPC COMPTOIR HAMMAMI is not acceptable. The additional delivered quantities can be returned to the seller at the seller’s expense.
The partial deliveries without prior written approval by SCPC COMPTOIR HAMMAMI is not accepted.
6.4 The method of packaging of every product has to be provided by the Seller and approved by SCPC COMPTOIR HAMMAMI. The type of packaging has to respect the norms and the climatic conditions of Tunisia. All the corresponding international norms will have to be respected.
The Seller will have to notify SCPC COMPTOIR HAMMAMI, by writing, of all the precautions to take to guaranty the good progress of the transport and storage.
On every parcel or pallet, the Seller has to mention:
The gross weight
The net weight
Details of the content
The references of the order
The direction of the position of the parcel or pallet and its manipulation (openness)
The level of fragility of the product
The delivered products have to be clearly identified on the packing by indicating at least:
Identification of the product (with a symbol of danger)
The designation of the product
N° of the order
Quantity
The number of the batch Expiry date
The Seller is required to deliver the following technical documentation, from the delivery of the first order, and in three copies in French or otherwise in English:
Technical characteristics
Safety Data Sheets
Conditions of handling, of storage, of use
Reference of the products (identification number)
The type and unity of packaging Besides the Seller will attach to every delivery the following documents:
The number of the batches of the products’ manufacturing and the date of
manufacturing A certificate guaranteeing conformity to the technical specifications
7-DELIVERY DATE
7.1 The Seller will deliver the products on the date or immediately after the expiry of the time period for delivery stipulated in the order or otherwise agreed in writing and accepted by SCPC COMPTOIR HAMMAMI. If a time period for delivery has been agreed, such a period will commence on the date on which the order is confirmed or – if later
7.2 on the date on which SCPC COMPTOIR HAMMAMI has made the information, calculations, models, films, materials or tools that the Seller needs to commence performance of the order, available to the Seller.
7.3 Without prejudice to the provisions in the preceding paragraph, the Seller is obligated to immediately inform SCPC COMPTOIR HAMMAMI of any delay or expected delay in the performance of the agreement. At the same time, the Seller will inform SCPC COMPTOIR HAMMAMI as to what has caused the delay. If the Seller fails to give the aforementioned notices, the Seller will no longer be able to invoke a claim of force majeure in this respect.
7.4 If the products are not delivered in whole or in part at the agreed time, the Seller will automatically be in default, without the Seller being given notice of default.
7.5 The Seller will be liable for all damage which SCPC COMPTOIR HAMMAMI might suffer as a result of late or incomplete delivery.
7.6 SCPC COMPTOIR HAMMAMI has the right to dissolve the agreement in whole or in part on the basis of late or Incomplete delivery. SCPC COMPTOIR HAMMAMI is not liable for any damage which the Seller might suffer as a consequence.
7.7 Upon dissolution of the purchase agreement SCPC COMPTOIR HAMMAMI is entitled to return to the Seller at the Seller’s risk and expense the products which had already been delivered under the aforementioned purchase agreement, but which could no longer be used effectively and recover the payments that SCPC COMPTOIR
HAMMAMI may already have made to the Seller for said products.
7.8 If the Seller is in default, the Seller forfeits every week that the default continues an immediately claimable penalty of three percent (3%) of the invoice amount indicated in the invoice or the order, without prejudice to the right of SCPC COMPTOIR HAMMAMI to demand damages and/or performance.
8-FORCE MAJEURE
8.1 To the extent SCPC COMPTOIR HAMMAMI or Seller is unable to perform its obligations under the Purchase Contract due to an event or occurrence beyond its reasonable control and without its fault or negligence, such as: acts of God; restrictions, prohibitions, priorities or allocations imposed or actions taken by a governmental authority; embargoes; fires; explosions; natural disasters; riots; wars; or sabotage (together, “Force Majeure”), as soon as possible (but no more than one (1) full business day) after the occurrence, Seller or SCPC COMPTOIR HAMMAMI, as applicable, shall provide written notice describing such Force Majeure event and informing the other party of the anticipated duration of the event and the time within
which the event will be cured. Supplier shall inform Buyer immediately once the Force Majeure event has been cured.
8.2 Seller agrees that a change in the cost of materials, components or services
based on market conditions, seller actions or contract disputes with its subcontractors and (sub-) suppliers will not be considered Force Majeure and will not excuse non-performance by Seller, whether for commercial impossibility or otherwise.
9-TRANSFER OF OWNERSHIP AND RISK
The ownership in and risk of the products transfers to SCPC COMPTOIR HAMMAMI as soon as the products have been received by SCPC COMPTOIR HAMMAMI.
In the event of a complaint on the part of SCPC COMPTOIR HAMMAMI, the risk of the products involved will again rest with the Seller as of the date of the relevant notice to the Seller.
10-PROPERTY OF SCPC COMPTOIR HAMMAMI
10.1 All models, drawings, photos and other pictures, sound and information carriers and other tools which SCPC COMPTOIR HAMMAMI makes available to the Seller or which are made or purchased for and on the instructions of the Seller at SCPC COMPTOIR HAMMAMI’s expense will remain or become the property of SCPC COMPTOIR HAMMAMI.
10.2 The Seller will keep such tools in good condition and keep them insured against fire and theft, as long as they are under its control.
10.3 The Seller will make said tools available to SCPC COMPTOIR HAMMAMI in good condition upon first request
11-TESTING AND REJECTION
11.1 SCPC COMPTOIR HAMMAMI is not bound to carry out an inspection and/or check of the products delivered. Not carrying out such inspection does not in any way restrict the right of SCPC COMPTOIR HAMMAMI to lodge complaints nor any of its other rights. If the products delivered are not in accordance with the order, SCPC COMPTOIR HAMMAMI will inform the Seller thereof within an appropriate time after such has been noted.
11.2 Notwithstanding Article 9.1, SCPC COMPTOIR HAMMAMI will be entitled to test the products purchased after delivery or have such tested, insofar as there has not been an adequate test during or after manufacture of the products pursuant to Article 4.
11.3 If defects appear during the test, SCPC COMPTOIR HAMMAMI is entitled to reject the products.
11.4 Notwithstanding Article 9.3, in the event of defects the Seller is obligated to rectify said defects as soon as possible upon SCPC COMPTOIR HAMMAMI’s request.
11.5 The provisions of the preceding paragraphs apply mutatis mutandis to products which have not been tested but for which it appears upon delivery that they do not correspond in whole or in part with provisions and specifications of the order.
11.6 SCPC COMPTOIR HAMMAMI will immediately inform the Seller of rejection. If the parties subsequently do not reach agreement on the delivery of replacement products, SCPC COMPTOIR HAMMAMI is entitled to immediately dissolve the purchase agreement in whole or in part without judicial recourse. The provisions of 6.4, 6.5 and 6.6 apply mutatis mutandis to such dissolution.
11.7 After dissolution SCPC COMPTOIR HAMMAMI is obliged to return any products already delivered as soon as possible at the expense and risk of the Seller to a location designated by the Seller. Ownership in the products already delivered will be transferred back to the Seller upon return delivery.
11.8 After dissolution the Seller is obligated to immediately repay SCPC COMPTOIR HAMMAMI the amounts of the purchase price already paid.
11.9 Payment of the products already delivered will never mean waiver of the right to complain or other rights of SCPC COMPTOIR HAMMAMI.
12-GUARANTEE
12.1 The Seller is liable for damage caused to and by the products, occurring during the guarantee period, unless the damage is the result of a design fault on the part of SCPC COMPTOIR HAMMAMI or an error caused by SCPC COMPTOIR HAMMAMI during use and operation. 12.2 The Seller warranty that the products will retain their original qualities for at least six (6) months from their expedition date.
12.3 The use by date of the Products must be clearly indicated on each packaging whether applicable.
12.4 By way of performance of its liability obligations, the Seller is obligated to rectify the products or any defective components thereof within a reasonable time free of charge or replace such with new ones, free of charge.
13-DAMAGE OR LOSS DUE TO OR DURING TRANSPORT
The Seller will rectify or replace products which are damaged or lost during transport,free of charge.
14-PRICE AND PAYMENT
14.1 Unless the contrary has been agreed, the purchase price encompasses the price for the products, the costs of packaging, the transport and the delivery costs to the location designated by SCPC COMPTOIR HAMMAMI.14.2 Without prejudice to the provisions of the preceding paragraph, SCPC
COMPTOIR HAMMAMI is obligated to pay the agreed price to the Seller on the date or dates stipulated in the order.
14.3 Unless otherwise agreed in the order, the payment term is at the sole option of SCPC COMPTOIR HAMMAMI: 120 days net end of the month from the date of the invoice.
14.4 SCPC COMPTOIR HAMMAMI retains the right to suspend payments for part-time shipments until the order has been delivered in full conformity with the order.
15-STATUTORY REQUIREMENTS
15.1 The Seller guarantees that the design, the composition and the quality of the products which are to be delivered based on the order will in all aspects meet the relevant requirements set by law and/or other government regulations (such as CE marking) which apply at the time of entering into the agreement.
15.2 The provisions of Paragraph 1 also apply to the normal use of the products.
15.3 The Seller will indemnify SCPC COMPTOIR HAMMAMI against claims of third parties based on the fact that the products delivered do not meet the provisions of Paragraph 1.
16-NFRINGEMENTS OF PATENTS
16.1 The Seller will indemnify SCPC COMPTOIR HAMMAMI against claims of third parties based on alleged infringement of patents or models belonging to them which have been used in the manufacture, repair or use of the products delivered.
16.2 If there is any patent or license relating to the design of the products delivered in the name of the Seller, if SCPC COMPTOIR HAMMAMI repairs the products it will not be deemed to have infringed such patent or license in any way.
16.3 If there is any patent or license relating to the design of the products delivered in the name of SCPC COMPTOIR HAMMAMI, the provisions of Article 8.5 apply mutatis mutandis.
17-DISSOLUTION
17.1 Without prejudice to the provisions of Articles 6, 9, 10, 11 and 13, the purchase agreement is dissolved by a written declaration at the time when the Seller is declared to be in a state of insolvent liquidation, has petitioned for a moratorium on payment, or due to seizure, placement under guardianship or otherwise loses the right to dispose of its capital or parts thereof. The Seller cannot make any claim to compensation of damage, costs or interest under this heading.
17.2 Any claims on either side become immediately claimable upon dissolution.
Article 6 applies mutatis mutandis.
18-COMPENSATION
18.1 The Seller will fully indemnify SCPC COMPTOIR HAMMAMI for all damage to products or persons which arise for SCPC COMPTOIR HAMMAMI, its personnel or its customers or are the result of actions, insofar as such are to be deemed a form of default or wrongful deed of the Seller, its personnel or other persons involved by the Seller in the performance of the order. This also includes the damage which arises due to the presence, use or transport of property of the Seller, its personnel or other persons involved by the Seller in the performance of the order.
18.2 The Seller will fully indemnify SCPC COMPTOIR HAMMAMI against claims of third parties to compensation for damage as referred to in Paragraph 1. If a third party
makes a claim against SCPC COMPTOIR HAMMAMI in this respect, SCPC COMPTOIR HAMMAMI will immediately inform the Seller thereof, which notice will be accompanied by the relevant information.
19-ASSIGNMENT OF RIGHTS AND OBLIGATIONS
19.1 SCPC COMPTOIR HAMMAMI may assign its rights under an agreement with the Seller to third parties. SCPC COMPTOIR HAMMAMI is further entitled to assign obligations under any agreement with the Seller to third parties, provided SCPC COMPTOIR HAMMAMI gives the Seller prior notice hereof. In such case the Seller is entitled to terminate the agreement. SCPC COMPTOIR HAMMAMI is not bound to pay any compensation in such respect.
19.2 The Seller may not assign its rights and/or obligations under any agreement with SCPC COMPTOIR HAMMAMI to third parties, without the prior written consent of SCPC COMPTOIR HAMMAMI.
20-APPLICABLE LAW, COMPETENT COURT
All disputes arising in connection with these general purchase conditions shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by three arbitrators, acting as amiable compositor, appointed in accordance with the said Rules.
The cost of the procedure, if any, and the arbitrators’ fees shall be advanced by
the parties in equal amounts. The award shall mention which party shall be
sentenced to bear the burden of costs and fees or in what proportions they shall be borne by the parties.
Arbitration shall be held in impartial court and the language of the arbitration shall be the English.
21-ENGLISH TEXT PREVAILS
The English text of these General Conditions prevails over the translation hereof.
8.2 Seller agrees that a change in the cost of materials, components or services
based on market conditions, seller actions or contract disputes with its subcontractors and (sub-) suppliers will not be considered Force Majeure and will not excuse non-performance by Seller, whether for commercial impossibility or otherwise.
9-TRANSFER OF OWNERSHIP AND RISK
The ownership in and risk of the products transfers to SCPC COMPTOIR HAMMAMI as soon as the products have been received by SCPC COMPTOIR HAMMAMI.
In the event of a complaint on the part of SCPC COMPTOIR HAMMAMI, the risk of the products involved will again rest with the Seller as of the date of the relevant notice to the Seller.
10-PROPERTY OF SCPC COMPTOIR HAMMAMI
10.1 All models, drawings, photos and other pictures, sound and information carriers and other tools which SCPC COMPTOIR HAMMAMI makes available to the Seller or which are made or purchased for and on the instructions of the Seller at SCPC COMPTOIR HAMMAMI’s expense will remain or become the property of SCPC COMPTOIR HAMMAMI.
10.2 The Seller will keep such tools in good condition and keep them insured against fire and theft, as long as they are under its control.
10.3 The Seller will make said tools available to SCPC COMPTOIR HAMMAMI in good condition upon first request
11-TESTING AND REJECTION
11.1 SCPC COMPTOIR HAMMAMI is not bound to carry out an inspection and/or check of the products delivered. Not carrying out such inspection does not in any way restrict the right of SCPC COMPTOIR HAMMAMI to lodge complaints nor any of its other rights. If the products delivered are not in accordance with the order, SCPC COMPTOIR HAMMAMI will inform the Seller thereof within an appropriate time after such has been noted.
11.2 Notwithstanding Article 9.1, SCPC COMPTOIR HAMMAMI will be entitled to test the products purchased after delivery or have such tested, insofar as there has not been an adequate test during or after manufacture of the products pursuant to Article 4.
11.3 If defects appear during the test, SCPC COMPTOIR HAMMAMI is entitled to reject the products.
11.4 Notwithstanding Article 9.3, in the event of defects the Seller is obligated to rectify said defects as soon as possible upon SCPC COMPTOIR HAMMAMI’s request.
11.5 The provisions of the preceding paragraphs apply mutatis mutandis to products which have not been tested but for which it appears upon delivery that they do not correspond in whole or in part with provisions and specifications of the order.
11.6 SCPC COMPTOIR HAMMAMI will immediately inform the Seller of rejection. If the parties subsequently do not reach agreement on the delivery of replacement products, SCPC COMPTOIR HAMMAMI is entitled to immediately dissolve the purchase agreement in whole or in part without judicial recourse. The provisions of 6.4, 6.5 and 6.6 apply mutatis mutandis to such dissolution.
11.7 After dissolution SCPC COMPTOIR HAMMAMI is obliged to return any products already delivered as soon as possible at the expense and risk of the Seller to a location designated by the Seller. Ownership in the products already delivered will be transferred back to the Seller upon return delivery.
11.8 After dissolution the Seller is obligated to immediately repay SCPC COMPTOIR HAMMAMI the amounts of the purchase price already paid.
11.9 Payment of the products already delivered will never mean waiver of the right to complain or other rights of SCPC COMPTOIR HAMMAMI.
12-GUARANTEE
12.1 The Seller is liable for damage caused to and by the products, occurring during the guarantee period, unless the damage is the result of a design fault on the part of SCPC COMPTOIR HAMMAMI or an error caused by SCPC COMPTOIR HAMMAMI during use and operation. 12.2 The Seller warranty that the products will retain their original qualities for at least six (6) months from their expedition date.
12.3 The use by date of the Products must be clearly indicated on each packaging whether applicable.
12.4 By way of performance of its liability obligations, the Seller is obligated to rectify the products or any defective components thereof within a reasonable time free of charge or replace such with new ones, free of charge.
13-DAMAGE OR LOSS DUE TO OR DURING TRANSPORT
The Seller will rectify or replace products which are damaged or lost during transport,free of charge.
14-PRICE AND PAYMENT
14.1 Unless the contrary has been agreed, the purchase price encompasses the price for the products, the costs of packaging, the transport and the delivery costs to the location designated by SCPC COMPTOIR HAMMAMI.14.2 Without prejudice to the provisions of the preceding paragraph, SCPC
COMPTOIR HAMMAMI is obligated to pay the agreed price to the Seller on the date or dates stipulated in the order.
14.3 Unless otherwise agreed in the order, the payment term is at the sole option of SCPC COMPTOIR HAMMAMI: 120 days net end of the month from the date of the invoice.
14.4 SCPC COMPTOIR HAMMAMI retains the right to suspend payments for part-time shipments until the order has been delivered in full conformity with the order.
15-STATUTORY REQUIREMENTS
15.1 The Seller guarantees that the design, the composition and the quality of the products which are to be delivered based on the order will in all aspects meet the relevant requirements set by law and/or other government regulations (such as CE marking) which apply at the time of entering into the agreement.
15.2 The provisions of Paragraph 1 also apply to the normal use of the products.
15.3 The Seller will indemnify SCPC COMPTOIR HAMMAMI against claims of third parties based on the fact that the products delivered do not meet the provisions of Paragraph 1.
16-NFRINGEMENTS OF PATENTS
16.1 The Seller will indemnify SCPC COMPTOIR HAMMAMI against claims of third parties based on alleged infringement of patents or models belonging to them which have been used in the manufacture, repair or use of the products delivered.
16.2 If there is any patent or license relating to the design of the products delivered in the name of the Seller, if SCPC COMPTOIR HAMMAMI repairs the products it will not be deemed to have infringed such patent or license in any way.
16.3 If there is any patent or license relating to the design of the products delivered in the name of SCPC COMPTOIR HAMMAMI, the provisions of Article 8.5 apply mutatis mutandis.
17-DISSOLUTION
17.1 Without prejudice to the provisions of Articles 6, 9, 10, 11 and 13, the purchase agreement is dissolved by a written declaration at the time when the Seller is declared to be in a state of insolvent liquidation, has petitioned for a moratorium on payment, or due to seizure, placement under guardianship or otherwise loses the right to dispose of its capital or parts thereof. The Seller cannot make any claim to compensation of damage, costs or interest under this heading.
17.2 Any claims on either side become immediately claimable upon dissolution.
Article 6 applies mutatis mutandis.
18-COMPENSATION
18.1 The Seller will fully indemnify SCPC COMPTOIR HAMMAMI for all damage to products or persons which arise for SCPC COMPTOIR HAMMAMI, its personnel or its customers or are the result of actions, insofar as such are to be deemed a form of default or wrongful deed of the Seller, its personnel or other persons involved by the Seller in the performance of the order. This also includes the damage which arises due to the presence, use or transport of property of the Seller, its personnel or other persons involved by the Seller in the performance of the order.
18.2 The Seller will fully indemnify SCPC COMPTOIR HAMMAMI against claims of third parties to compensation for damage as referred to in Paragraph 1. If a third party
makes a claim against SCPC COMPTOIR HAMMAMI in this respect, SCPC COMPTOIR HAMMAMI will immediately inform the Seller thereof, which notice will be accompanied by the relevant information.
19-ASSIGNMENT OF RIGHTS AND OBLIGATIONS
19.1 SCPC COMPTOIR HAMMAMI may assign its rights under an agreement with the Seller to third parties. SCPC COMPTOIR HAMMAMI is further entitled to assign obligations under any agreement with the Seller to third parties, provided SCPC COMPTOIR HAMMAMI gives the Seller prior notice hereof. In such case the Seller is entitled to terminate the agreement. SCPC COMPTOIR HAMMAMI is not bound to pay any compensation in such respect.
19.2 The Seller may not assign its rights and/or obligations under any agreement with SCPC COMPTOIR HAMMAMI to third parties, without the prior written consent of SCPC COMPTOIR HAMMAMI.
20-APPLICABLE LAW, COMPETENT COURT
All disputes arising in connection with these general purchase conditions shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by three arbitrators, acting as amiable compositor, appointed in accordance with the said Rules.
The cost of the procedure, if any, and the arbitrators’ fees shall be advanced by
the parties in equal amounts. The award shall mention which party shall be
sentenced to bear the burden of costs and fees or in what proportions they shall be borne by the parties.
Arbitration shall be held in impartial court and the language of the arbitration shall be the English.
21-ENGLISH TEXT PREVAILS
The English text of these General Conditions prevails over the translation hereof.