Terms & Conditions of purchase
GENERAL CONDITIONS OF PURCHASE – Index F / September 2020
1. APPLICATION OF GENERAL TERMS AND CONDITIONS OF PURCHASE
The present general terms and conditions of purchase (“GTCP”) are applicable to all orders placed by the company DIATEX (“DIATEX”) to its suppliers and subcontractors (the “Supplier(s)”) for the purchase of products, goods, merchandises, transport or provision of services (the “Product(s)”).
They constitute an element of commercial negotiation that may give rise to special conditions mutually agreed upon between DIATEX and the Supplier. Therefore, unless expressly provided otherwise, the GTCP are applicable to any order placed by DIATEX with its Suppliers.
2. VALIDITY OF THE ORDER – ACKNOWLEDGMENT OF RECEIPT
Any purchase by DIATEX is preceded by an order to the Supplier. Orders submitted by DIATEX are only valid if they are drawn up on DIATEX letterhead. They may be sent by mail, fax or email and are valid for FORTY-EIGHT (48) hours. Any modification of the terms of the order by the Supplier is subject to the express acceptance of DIATEX. The acknowledgment of receipt of order must reach DIATEX within FORTY-EIGHT (48) hours; it entails in all cases the final acceptance of the specific and general conditions of the DIATEX order. The absence of the acknowledgment of receipt within FORTY-EIGHT (48) hours leads to the lapse of the DIATEX order.
3. PRICE – PAYMENT TERMS – INVOICES
Unless otherwise stipulated, the prices indicated on the order forms are in euros, firm and non-revisable, understood to refer to Products packaged and delivered to the place of delivery indicated on the order.Unless otherwise expressly agreed in the order, payments of invoices are made by bank transfer SIXTY (60) days from the date of the invoice. Any delay in payment results automatically and without prior notice in the application of late penalty fees of a rate equal to THREE (3) times the legal interest rate and the invoicing of a lump sum of FORTY (40) euros for recovery fees.
Invoices are drawn up in duplicate in accordance with the applicable rules and should be addressed to DIATEX at the latest on delivery to DIATEX of the corresponding Products.
4. DELIVERY – RECEPTION
The Products are delivered on the date and place indicated on the order without reservation of ownership in favor of the Supplier.
If FORTY-EIGHT (48) hours after the indicated date of delivery on the order form, the Supplier has not executed the delivery, DIATEX has the option of: (i) cancelling the order, or (ii) applying late penalties calculated on the basis of 0.5% of the amount of the order per day of delay within the limit of 15% of the amount excluding tax order. If DIATEX chooses to apply late penalty charges, it informs the Supplier in writing, the latter has FORTY-EIGHT (48) hours to contest. If the Supplier does not justify a case of exonerating force majeure, the penalties apply until the order is fully executed. In this case, the parties agree to an automatic compensation as of right between the penalties owed by the Supplier and the sums owed by DIATEX for the order.
These decisions are made by DIATEX and are without prejudice to other rights and actions which would be open to it, in particular for the purpose of reparation of the prejudice which it suffers because of late delivery. Early deliveries can only be accepted after written agreement from DIATEX. All shipment of Products must be accompanied by a delivery note (DN) stating the order number and date, the DIATEX and Supplier references and the quantities delivered. The DN must accompany the Products and be on or in their packaging in order to allow identification. In the event that the order stipulates delivery of Products to a third party, a copy of the DN must be simultaneously addressed to the DIATEX supply department in St Genis Laval by fax (0478512638) or by email (firstname.lastname@example.org ).
The packaging of the Products is under the Supplier’s responsibility and must allow transport, handling and storage without causing any damage to the delivered Products. It should also be adapted to any stipulated usage constraints, if any. Before transport, the Supplier checks the packaging conditions of the Products in accordance with the above requirements.
The Products always travel at the Supplier’s own risks, notwithstanding any clause to the contrary in the Supplier’s GTCS and even if the price is established ex-works or in one of its stores or by one of its Suppliers/contractors, DIATEX will only bear the risks from receipt of the Products by DIATEX at the agreed place of delivery. Any acceptance operations that may be carried out at the Supplier’s premises are only provisional and the signature of the transport order shall not be considered as definitive acceptance. DIATEX reserves the right to (i) refuse and reship the surplus Products and / or delivered in advance and / or defective and / or non-compliant, at the cost, risks and perils of the Supplier, and (ii) require the quantities missing from the order.
5. WORK ON THE DIATEX PRODUCTS
DIATEX may entrust the Supplier with work to be carried out on Products manufactured and / or belonging to DIATEX (the “DIATEX Products”) it being specified that the DIATEX Products remain in any event the property of DIATEX. Without prejudice to the arrangements that are taken with regards to the carrier, the Supplier must check the DIATEX Products upon unloading. The verification must relate in particular to the condition of the DIATEX Products, the references and the quantities. In the absence of notification from the Supplier within FORTY-EIGHT (48) hours after receipt of the Products, it will be considered to comply with those mentioned on the delivery note established by DIATEX. The Supplier is responsible for the DIATEX Products for which it bears the risks and ensures their custody from the unloading up until the reception by DIATEX. In the case of partial or complete degradation, faulty or non-return of all or part of the DIATEX Products, DIATEX reserves the right to invoice the DIATEX Products at their cost price without prejudice to any additional damages. The Supplier must take all necessary measures so that the DIATEX Products entrusted to them are clearly identified as belonging to DIATEX, in particular to avoid any possible claim by the Supplier creditors on DIATEX Products.
6. QUALITY REQUIREMENTS AND PRODUCT SPECIFICATIONS – WARRANTY- DEFECTS AND / OR NON-CONFORMITY – AUDIT
The Products delivered to DIATEX must comply with (i) French and European laws and regulations in force, (ii) state of the art technical and qualitative standards in the Supplier’s profession, and (iii) specifications and requirements agreed in the order and / or in the bill of specifications. The Supplier (i) certifies that it complies with the laws and regulations in force applicable to the Products, in particular to the REACH regulation if applicable, (ii) must send a statement to this effect with the acknowledgment of receipt of the order, and (iii) must guarantee the compliance of its suppliers and / or subcontractors, in particular to the specifications or the requirements formulated by DIATEX. The Supplier must send the technical data sheet(s) along with the safety data sheet(s). The intervention of the DIATEX quality department does not release the Supplier from its obligation of compliance. All Products ordered by DIATEX are guaranteed by the Supplier under the conditions provided for by law, except for a more favorable application by the Supplier.
In the event of a modification made by the Supplier to one or more Products, a specification or a manufacturing process, the Supplier shall notify DIATEX as soon as possible, of planned developments or changes in definitions before any application of these modifications to one or more DIATEX orders, respecting a ONE (1) months’ notice. Any modification must be expressly accepted in writing by DIATEX before any delivery.
Products that have been refused by DIATEX will remain on the Supplier’s premises at their own risk and peril, until they are removed by the Supplier, the return transport being at the risk and responsibility of the Supplier. It is understood that the full payment of the order does not exclude the liability and / or the Supplier’s warranty, which will remain full and complete until the end of the period of contractual and legal guarantees, in particular with regard to the guarantee against hidden defects as well as the warranty due to defective Products (respectively to articles 1641 and following, and 1245 and following of the French civil code). In case of refusal for defect or non-conformity, DIATEX draws up a non-conformity sheet which it sends to the Supplier. The Supplier must make his position known as soon as possible and at the most within the FIVE (5) days counting from the reception of the non-compliance sheet. DIATEX reserves the right to pass on to the Supplier the direct and indirect costs generated by the non-compliance sheet. Any defective or non-conforming Product will, at DIATEX’s convenience, be (i) replaced without delay and free of charge by the Supplier, (ii) reimbursed to DIATEX if the latter decides to cancel the order or (iii) be replaced with another Supplier chosen by DIATEX, at the Supplier’s expense, if it appears that the Product cannot be replaced without delay and that there is a risk of disruption of DIATEX production due to the defect. DIATEX may carry out, with one month’s notice, an annual audit of the Supplier’s production in order to ensure compliance with the quality of the Products. The audit is carried out at the expense of DIATEX. However, in the event of proven non-conformity of Production these costs will be the sole responsibility of the Supplier
7. LIABILITY- INSURANCE
The Supplier commits to execute the orders itself, unless DIATEX has given its prior written consent. The Supplier assumes full and complete responsibility for the execution of the order, including the manufacture and delivery of the Products and in particular for their execution in accordance with the state of the art rules and in compliance with all the regulations in force, in particular in accordance with article 5 of the GTCP, including if it uses Suppliers and subcontractors. In particular, it is expressly agreed that, notwithstanding any clause contrary to the GTCS (i) the Supplier shall continue to be bound by the legal sales guarantees, (ii) in the event of non-performance or breach by the Supplier of any of its contractual obligations, it will have to compensate DIATEX for the whole damage suffered as a result, without any ceiling and / or exclusion and /or limitation of liability opposable to DIATEX. Consequently, the Supplier shall therefore indemnify DIATEX for any damage suffered by DIATEX including in particular the costs, expenses, indemnities and all other pecuniary consequences suffered by DIATEX, including image damage and / or loss of turnover, in particular due to the non-conformity of the Products as identified in article 5 and in case of violation of the intellectual property rights of DIATEX as identified in article 7.
In the event of the Supplier’s intervention on DIATEX’s premises, it undertakes to comply with the standards, rules and procedures in force within DIATEX, in particular with respect to health and safety. As such, the Supplier undertakes to read and respect the DIATEX prevention plan, in particular by taking the safety and risk prevention measures it contains. In addition, the Supplier undertakes to inform its personnel and / or its subcontractors of the said rules and shall ensure that its personnel and / or its subcontractors comply with this commitment.
The Supplier shall be personally responsible for complying with the laws and regulations applicable to it, in particular its social and tax obligations, and shall carry out its activity in complete independence. In this respect, the Supplier (i) must imperatively take out an insurance policy covering the consequences of its civil liability due to its activities and the Products that it produces or which are entrusted to it for subcontracting work, which it declares and undertakes as such to give a copy to DIATEX upon request, and (ii) undertakes to use regularly employed personnel, in particular with regard to Articles L. 3234-2, L. 1221-10 and L.8251-1 and following of the French labor code. Consequently, the Supplier shall provide DIATEX upon request with the documents required by the labor code, in particular those provided for in Article D. 8222-1 and following, at the time of the order and every SIX (6) months during its execution.
The Supplier shall provide the representatives of the official authorities, in compliance with the regulations in force, free access to its premises, the provision of any document related to the order and any facility to enable them to perform their duties.
8. INTELLECTUAL PROPERTY RIGHTS – CONFIDENTIALITY
Except for special agreement negotiated and expressly agreed in writing between the Parties, DIATEX is the owner of all intellectual property rights relating to, without this list being restrictive, the Products, including on the DIATEX Products that are the subject of work by the Supplier, specifications, supports, documents, know-how, technical data sheets, databases, plans, sketches and more generally any element transmitted by DIATEX to the Supplier. The infringement of DIATEX’s intellectual property rights, in particular those stipulated above, constitutes a major economic and moral damage for DIATEX as well as a real risk for its customers, which the Supplier acknowledges. The Supplier shall refrain from any maneuver or reticence likely to affect these rights without the express written consent of DIATEX. The Supplier undertakes to inform DIATEX of any element likely to affect them and to assist it in defending its rights.
All information, in particular technical, economic and commercial information, including the subject of the order, its price, including any discounts, the Products and/or DIATEX Products as well as any work entrusted to the Supplier, the progress of the projects, the status of the results obtained, made available to the Supplier by DIATEX in any form or medium whatsoever, including orally, are confidential (the “Confidential Information”).The communication of Confidential Information, in any manner whatsoever, is made strictly for the purpose of facilitating the Supplier’s mission and optimizing its results.The Supplier undertakes (i) to communicate Confidential Information only to those persons (including members of its staff and/or subcontractors) who need to know it in order to execute the order; (ii) not to disclose and/or communicate to third parties the Confidential Information transmitted, without having received prior express written permission from DIATEX ; (iii) to put in place measures to ensure the integrity, confidentiality and security of Confidential Information at least equivalent to those put in place for its own confidential information; and (iv) not to make any industrial or commercial use of this information other than that strictly limited to the execution of orders.
The Supplier agrees to ensure that its suppliers, subcontractors and/or its personnel with a need to know Confidential Information comply with this confidentiality undertaking, and undertakes to make every effort to ensure that it is fully respected. This commitment shall apply provided that the Confidential Information to which it relates has not fallen into the public domain through no fault of the Supplier and/or its staff, Suppliers and/or subcontractors. The Supplier shall be bound by this confidentiality undertaking for the entire duration of the execution of the order and for SEVEN (7) years from its termination for any reason whatsoever. Unless expressly authorized in writing by DIATEX, the Supplier is not authorized to use and/or reproduce the name and/or any distinctive sign of DIATEX as a commercial reference in its communications of any kind in any medium whatsoever.
9. ETHICAL RESPONSIBILITY – PROTECTION OF PERSONAL DATA
The Supplier undertakes, in the execution of the order, to comply with the commitments defined below with respect to ethics and sustainable development (including social and environmental responsibilities), namely: human rights and international labor standards. As such, it undertakes not to employ children, not to use forced labor and not to discriminate in hiring. It must avoid conflicts of interest and respect the environment. The Supplier undertakes not to make, offer or authorize illegal payments in order to win or retain the contract with DIATEX, whether directly or indirectly, for the benefit of government representatives, third parties or employees of DIATEX. Each Party undertakes to comply with the legal and regulatory provisions in force applicable to the protection of personal data in the context of the execution of the order. In this respect, each Party shall specify that the purpose of the processing of personal data concerning the other Party (including any relevant natural persons of that Party) resides in the execution of the order, for its duration as well as during the period of recourse after its termination; each Party undertakes to take appropriate measures in view of the risk incurred to ensure the confidentiality, integrity and security of the data thus collected, which will not be, under any circumstances, transferred to any third party that does not provide the same guarantees inside or outside the European Union. It recalls that the other Party (including all concerned natural persons of that Party) has a right of access, rectification, portability, deletion and erasure of its personal data and minimization of processing, as well as the right to define post-mortem guidelines. Each Party (including any relevant natural persons of that Party) also has the right to object to the processing on legitimate grounds and at any time in the context of commercial prospecting. These rights can be exercised at the address appearing in the header of the order. Each Party may also file a claim with the CNIL.
10. TERMINATION – APPLICABLE LAW AND JURISDICTION
In the event of a case of force majeure lasting more than FIFTEEN (15) days, DIATEX can terminate the order automatically and by right by LRAR, without any indemnity being due on either side. DIATEX can terminate automatically and by right in the event of non-performance by the Supplier of all or part of its obligations under the order and in particular Articles 2, 3, 4, 5, 6, 7, 8 and/or 9 of the GTCP, after a formal notice sent by LRAR remained unsuccessful at the end of a period of THIRTY (30) days following receipt of the notice of default if the non-performance can be remedied.
The CTGAs are governed by French law, excluding any conflict of law that would imply the application of another law. The Vienna Convention on the International Sale of Goods is not applicable. IN THE ABSENCE OF AN AMICABLE SETTLEMENT WITHIN THIRTY (30) DAYS OF ITS OCCURRENCE, ANY DISPUTE BETWEEN DIATEX AND THE SUPPLIER SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF LYON.