GENERAL CONDITIONS OF SALE
TECH-OIL (a limited liability company with a capital of 150.000 Euros, whose head office is located at: 10 allee Pierre Giles de Gennes Parc du Millénium 33692 Mérignac (France), registered with the Bordeaux Trade and Companies Register under the number 509 582 441) is a company who manufactures and distributes lubricants and oil products.
These General contractual conditions apply whatever the nationality of the client. They are available on the web site www.tech-oil.fr or upon a simple demand.
These General Terms and Conditions of Sale constitute, in conformity with the Article L441-6 of the French Code de commerce, the only standard of the commercial relationships between the parties. Their purpose is to define the conditions under which TECH-OIL ("TECH-OIL or Supplier") provides professional buyers ("the Client or Clients") who request so, with the products manufactured and / or distributed by TECH-OIL ("Products").
They supersede any terms of purchase or any other document of the Client, regardless of the terms, any order sent to the Supplier involve the acceptance of the Supplier’s prices and present General Conditions of Sale.
The Supplier reserves the right to waive certain clauses of these General Conditions of Sale, depending on negotiations with the Client and the specific Products, through the drafting of the Special Conditions of Sale that shall prevail in case of differences with the General Conditions of Sale.
No failure or delay on the part of TECH-OIL in exercising any right, power or privilege under these General Conditions of Sale shall operate as a waiver thereof.
For the purposes of these General Conditions of Sale (the “Conditions”), the following words have the meanings set forth below:
1.1 «Contract»: means the sale contract between TECH-OIL and the Client for the sale of Products on the basis of the Order and present General Conditions of Sale;
1.2 «Order»: means the order made in writing by a Client to supply the Products;
1.3 «Party»: means TECH-OIL or the Client as indicated in the context;
1.4 «Price»: means the Price of the Products as defined by TECH-OIL and resulting from the price list in force and commercial offers made to a Client. These prices are net and VAT free, increased, if applicable by duties and taxes of all kinds and in freight rates determined at the date of the order. Prices are given in Euros and payment must be made in Euros.
1.5 «Business Day»: means the effective working day at TECH-OIL. In general these are the days from Monday to Friday excluding public holidays.
1.6 «Products»: mean the products manufactured and/or distributed by TECH-OIL packaged or sold loose.
2.1 The Orders are made by the Client by letter, fax or mail.
2.2 The Orders should identify the characteristics of the Products, the codes used by the Supplier and the quantities of Products.
2.3 Any Order arrival after 4pm (Paris time) shall be registered the next business day.
2.4 The Order is considered to be accepted by the Supplier if the Supplier is silent or if the Supplier does not change the Order the same day before 5 pm for the orders arrived to the Supplier before and 4 pm and the next business day for the orders arrived after 4 pm. After this deadline, if the Supplier is silent, the sale is considered to be formed and the Order cannot be changed or canceled.
2.5 In case of the modification of the Order by the Supplier within the time period mentioned above, the Client must notify the Supplier no later than the next day of the reception of the changes about his acceptance of Supplier’s modifications or cancel the Order. The silence of the Supplier pursuant to the conditions described in 2.4 involves the formation of the Contract and the Order cannot be changed or canceled.
2.6 Any final Order will be fully delivered and charged to the Client.
2.7 In case of an advanced payment required by the Supplier, the Orders will be final only after payment of the advanced payment.
2.8 Any modification of the Order after the formation of the Contract is considered to be a new Order. Therefore, the terms of delivery will start on the date of the second Order and the minimum of the order should be achieved.
2.9 In exceptional cases, in particular, in case of Product removal the Supplier has the right to cancel the ordered Products that are no longer available. The Client has the right to substitute Products that are not available through other Products. In the event that some Products are out of stock, the delivery terms may be extended. The Client shall in no case cancel the Order or claim for damages in case of cancellation of ordered Products and late delivery.
2.10 The minimum order amount is 1.000 liters per order and per place of delivery.
3. Payment conditions. Price
3.1 An advanced payment for the amount provided by the Supplier may be required when placing the Order.
3.2 The Price is payable in cash on the date of delivery.
3.3 However, it can be granted special payment terms. They may in no case exceed 60 days as from the date of issue of the invoice. In this case, the discount rate for the payments before the due date is that of the EURIBOR on the date of payment. The net tax discount will be calculated from the receipt of payment by the Supplier. This discount will be granted only if it is above 30 euros.
3.4 In case of late payment and payment of sums due by the Client after the payment date indicated on the invoice sent to him, late penalties will be calculated at the interest rate applied by the European Central Bank to its most recent refinancing operation plus 10 percentage points in accordance with article L. 441-6 of the Commercial Code.
3.5 The penalties will be due by the Client without any prior notice or formality on all outstanding amounts when due and whatever the method of payment.
3.6 In case of non-compliance with payment conditions contained above, the Supplier further reserves the right to ask for the immediate payment of any amount due, regardless of the method of payment, suspend or cancel delivery of current orders from the Client and/or suspend the performance of his other obligations and/or terminate or cancel the Contract.
3.7 Unless otherwise expressly agreed in writing by the Supplier, no compensation may be validly made between the amounts owed by the Supplier on the one hand, and the amounts due by the Client, on the other.
3.8 Finally, a flat indemnity fee for recovery costs, in the amount of 40 euros will be due as of right and without prior notice by the Client in case of late payment as from the first day of delay. The Supplier reserves the right to ask the Client additional compensation if the recovery costs actually incurred exceed this amount, on presentation of proofs.
4. Retention of title
4.1 The Supplier reserves until the full payment by the Client, a right of ownership of the sold Products, allowing him to repossess such Products in case of non-payment.
4.2 As from the delivery date as defined in the article “Delivery”, the Products are under the Client’s responsibility until the transfer of ownership. The Client shall bear all risks the Products may suffer or cause, for any reason whatsoever, even in cases of force majeure, fortuitous event or due to a third party.
4.3 The conveyance of any deed creating an obligation to pay such as without limitation a letter of credit or other does not constitute a payment within the meaning of the present provision and the retention of title will stay valid until full payment.
4.4 The Client shall, on request by the Supplier, justify it took out an insurance policy covering the Products in his possession. He is committed to maintaining these guarantees until the ownership transfer for the sold Products.
4.5 The Client shall ensure, until the transfer of ownership, the preservation of the means of identification applied by the Supplier on the packaging in which the Products are delivered or on the Products themselves. The Supplier reserves the right to verify by any means that the Client has complied with the abovementioned obligations, without the Client being permitted to oppose this verification.
5.1 The Supplier will do his best to deliver the Products within 3 months. The delivery terms are suspended in case of Force Majeure.
5.2 The term indicated here above is not binding but informative and indicative only. The Supplier cannot be held liable in case of any delay in delivery. Any and all delay in delivery may neither result in the cancellation of the Order, nor in the rejection of Products, nor entitle the Client to any compensation.
5.3 Unless otherwise stipulated in the special conditions of sale, delivery will be made at the factory of the Supplier in Saint Laurent Blangy (France) EXW (Incoterms 2010) by making the Products available to a carrier on the premises of the Supplier, it being specified that the Products are traveling at the risk of the Client. The Client acknowledges that it is up to the carrier to make the delivery, the Supplier is deemed to have fulfilled his obligation to deliver when it delivers the ordered Products to the carrier who has accepted them without reservation.
5.4 The Client therefore has no remedy against the Supplier in case of defective delivery of ordered Products or damage occurred during transport or unloading.
5.5 Any delivery of Products to another place of delivery, previously accepted by the Supplier, will be at the sole expense of the Client.
5.6 Similarly, in case of special requests of the Client relating to the packaging or transportation conditions of the ordered Products, duly accepted in writing by the Supplier, the costs related thereto will be subject to additional specific charging to the Client.
5.7 The Supplier is entitled to make partial deliveries of Products.
5.8 The natures, capacities, weights and volumes, mentioned on the delivery note or invoice accompanying the delivery are deemed authoritative until proven otherwise, it being specified that:
a) The truck tankers being measured by the Measuring Instruments Service and the Client being able to verify the capacity with the gauge at the time of delivery, this capacity establishes the quantity delivered. This quantity results from the indications on the counter, which has been approved by the Measuring Instruments Service for specially equipped vehicles.
b) The tank cars are equipped with a scale gauge established by the Measuring Instruments Service of which the Client has knowledge, the volume and weight measured by this scale at the moment of departure and mentioned on the receipt are valid until proven otherwise.
5.9 The acceptance of delivery implies the verification of the natures, quantities, weights and volumes delivered. The Client shall, prior to any delivery, ensure that its facilities are fit to receive the Products and give, if necessary, all useful information to the carrier to enable him to unload properly. Unloading operations always take place, even with the assistance of the carrier, under the responsibility, risk and at the expense of the Client. No claim will be validly accepted in case of non-compliance with the above formalities by the Client.
5.10 Any claim or contestation regarding the conformity of products shall be indicated on the delivery order and be confirmed by registered letter with confirmation of receipt sent to the Supplier within five (5) calendar days from the date of the delivery.
No claim of the Client will be admissible after this time and failing to meet these conditions.
5.11 The Client must prove the existence of missing and/or defective Products. The Supplier reserves the right to conduct any audit on the spot. If the Client has made the claim, but used or sold the Product(s), the Supplier shall not be held liable for any damages resulting from the use of the Product(s).
6.1 In case of defective Products, the Supplier may replace or refund the non-compliant Products, excluding any other direct or indirect damage alleged by the Client, including but not limited to operating loss, loss of production, profits, contracts, or revenues, for which the Client cannot claim any compensation or termination of the Contract.
6.2 In the event of direct material damage suffered by the Client resulting from a fault of the Supplier, the liability of the Supplier shall be limited to the Product’s Price, except in case of gross negligence on the part of the Supplier.
6.3 TECH-OIL shall in no event be liable for the inadequacy of Products with the intended use or the desired effect by the Client. The latter being solely responsible for selecting the Products.
6.4 All liability is excluded in case of misuse, negligence of the Client, lack of supervision or maintenance and for normal wear of the product, abnormal use, non-compliance with the conditions prescribed in the user manual and in case of force majeure.
6.5 The Client shall comply with the laws, regulations and prescriptions in force in his country and in the country where the Products will be commercialized and/or sold and/or used including the local rules concerning the labelling and packaging of the Products. The Client shall pay all the contributions, taxes and fees regarding his activity so that the Supplier can never be worried about or sought for the payment of such taxes.
The present Conditions are expressly excluding the application of the legal regime of hardship as provided by the article 1195 of the French Civil Code for any sale of Products by the Supplier to the Client. Both Supplier and Client hereby expressly waive their right to invoke the provisions of article 1195 of the French Civil Code and the legal regime of hardship provided by this article. Both Parties thus undertake to comply with their obligations even though the contractual balance is affected by circumstances that were unpredictable at the time of conclusion of the Contract, and even when their performance would be excessively costly, and to bear any financial and economic consequences.
8. Enforcement in kind
8.1. Notwithstanding the provisions of the article 1221 of the French Civil Code, the Parties agree that in case of failure by either Party to fulfill its obligations, the Party that is a victim of such failure shall not be able to request its enforcement in kind.
8.2. Notwithstanding the provisions of the article 1222 of the French Civil Code, the Parties agree that in case of failure by either Party to fulfill its obligations the Party that is the victim of the failure shall not be able to enforce the obligation itself by Third party, at the expense of the defaulting Party.
9. Proportional reduction of the Price in case of incomplete performance of the obligation
9.1. Notwithstanding the provisions of the article 1223 of the French Civil Code, the Parties agree that in case of incomplete performance of the obligation, the creditor of the obligation shall not unilaterally decide to reduce the price thereof and notify the debtor.
10. Exception of non-performance
10.1. It is reminded that, in application of article 1219 of the French Civil Code, each Party can refuse to perform its obligation, even though it is due, if the other Party does not perform its obligation and if such non-performance is sufficiently serious, which means, may question the continuation of the Contract or essentially affect its economic balance. Such suspension of performance will be immediately effective, upon reception by the defaulting Party of the notification of breach which has been sent to the Party affected by the breach stating its intention to apply such exception of non-performance as long as the defaulting Party has not remedied its breach, such notification being sent by formal letter with notification of receipt or any durable means allowing establishment of a proof of sending.
10.2. This exception of non-performance can also be used preventively, in application of article 1220 of the French Civil Code, if it is obvious that one of the Parties will not perform its obligations on time and that the consequences of this non-performance would be sufficiently serious for the Party affected by the breach. The Party who takes the initiative uses this option at its own risks.
10.3. Suspension of performance shall immediately become effective, upon reception by the presumed defaulting Party of the notification of the intention to apply the preventive exception of non-performance until the presumed defaulting Party performs the obligation for which a future breach is clear, such notification being sent by formal letter with notification of receipt or any durable means allowing establishment of a proof of sending.
11. Product return
11.1. Any return of Product is subject to a prior agreement of the Supplier.
11.2. The products must be returned prepaid by the Client in their original packaging and should not have been used. The counting of Products to return will be made in the presence of a person authorized by the Supplier. Only this counting will prevail. All returns must imperatively be accompanied by the document of the agreement of the Supplier and a detailed schedule with full references of the invoice. The absence of these documents will result in the systematic refusal of the return.
12. Regulation of petroleum products
12.1. Unless otherwise specified the Products must be stored at room temperature, protected from the weather in a dry place.
12.2. Waste oils are subject to European regulations (Directive 2008 /98 / EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives) and French (Articles R 541-7 to R 541-11 of the Environmental Code, articles R 543-3 to 15 of the Environmental Code. Decree of 28 January 1999 on the conditions for disposal of waste oils, OJ of 24 February 1999). Used oil shall not be mixed with other liquids and should be stored in suitable tanks and should be recovered by a special organisation.
12.3. For heating oil and diesel fuel not for the road:
"Attention - Products under the regulated conditions of employment purposes - Not for purposes other than those authorized by the Ministerial Decree of 10 November 2011. Regulations: Directive 2009/30 / EC of the European Parliament and of the Council of 23 April 2009 amending Directive 98/70 / EC as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions.
12.4. For products intended for the provisioning of vessels:
"Attention - Produced under regulated conditions of employment purposes (order of the Minister of Economy, Finance and Industry of 1st July 2004). Prohibits employment:
- In any place in the "private pleasure craft"
- Apart from the sea or river allowed in all vessel".
12.5. For oil products intended for use other than as fuel or combustible:
"Attention - Petroleum products zero-rated for regulated uses (decree of 8 June 1993 amended) - Banned as fuel or combustible".
13. General provisions for termination
13.1. It is expressly agreed between the Parties that the debtor of an obligation to pay, in application of the present Conditions, will be formally noticed by the sole payability, in application of article 1344 of the French Civil Code.
13.2. Consequently, in case of non-payment on the due date, the Contract can be unilaterally terminated by TECH-OIL, without any notice nor any formalities.
13.3. Since the benefits exchanged between the Parties as from the conclusion of the Contract and until its termination have been found to be useful as and when reciprocally executed, they shall not give rise to reimbursement for the period prior to the last obligation which has not received its consideration.
13.4. In any case, the prejudiced Party can claim damages and interests before a court.
14. Confidentiality and Intellectual Property
14.1. Any and all documents produced or transmitted by TECH-OIL are considered as confidential, and will not be communicated or transferred to any third party without an express approval of TECH-OIL, except if such documents have become public without fault of the Client.
14.2. Except when expressly agreed to the contrary by the Client, TECH-OIL will be free to use the name of the Client in its commercial reference list.
14.3. The supply of Products to the Client does not involve any transfer of intellectual property rights to Products.
15. Data protection
15.1. TECH-OIL processes personal data for the purposes of this Contract.
15.2. According to the General Data Protection Regulation (EU) 2016/679 dated 27 April 2016 and the French data protection law n°78-178 dated January 6th 1978, TECH-OIL undertakes to collect and process data in compliance with applicable laws.
15.3. Any personal data transferred by the Client to TECH-OIL may be subject to computer processing and may be used by the Client and its commercial partners for processing, performance, delivery, payment and management of Orders. The collected data may also be used for purposes of commercial prospection.
15.4. The collection of data is limited to what is strictly necessary for the aforementioned purposes. TECH-OIL will only process adequate, relevant and necessary information, and undertakes not to communicate this information to third parties other than its commercial partners and subcontractors in charge of pursuing the aforementioned purposes. However, TECH-OIL may communicate these data to answer any injunction from legal authorities.
15.5. In compliance with applicable laws, any physical person, upon justification of their identity, can exercise their right to access, correct and/or erase personal data held about them in TECH-OIL’s databases, upon request sent by mail to TECH-OIL’s headquarters.
15.6. Any physical person also has the right to set general directives in relation to retention, deletion and communication of their personal data after their death, which can be registered with a “tiers de confiance numérique” (digital trusted third party) certified by the “CNIL” (National Commission for Data Protection), and specific directives in relation to processing of personal data mentioned in these directives which need to be registered with TECH-OIL upon request sent by mail to TECH-OIL’s headquarters with a specific consent to that purpose.
15.7. Any physical person has the right to oppose the processing or personal data, as well as the right to oppose the use of such data for commercial prospection purposes.
15.8. To exercise their rights, individuals shall send a request by mail, attached with a copy of an identification document, to TECH-OIL’s registered office: TECH-OIL Parc du Millenium 10 Allée Pierre Gilles de Gennes 33692 Mérignac, France.
15.9. TECH-OIL performs an impact analysis when the processing of personal data is likely to present an important risk for the rights and liberties of physical persons. An important risk is characterized when the processing satisfies at least two of the nine criteria set out by the CNIL.
15.10. The transfer of data outside of the European Union and the European Economic Area is adequately, appropriately and sufficiently protected.
15.11. TECH-OIL ensures the protection and confidentiality of personal data through the implementation of a reinforced data protection policy, and the use of physical and logical securitization measures.
15.12. TECH-OIL undertakes to notify any breach to the CNIL and to those such breach may affect in case of a high risk to their rights and liberties.
15.13. The individuals concerned may lodge a complaint with the CNIL in the event of a violation of any of their rights.
Cancellation of any provision of these Conditions will not result in the cancellation of these as a whole.
17. Force majeure
17.1. If, due to an event considered a force majeure in application of article 1218 of the French Civil Code, one or other of the Parties were unable to perform its obligations, the obligations would be suspended temporarily for the duration of this impossibility without a Party can seek the liability of the other.
17.2. In any case, if this event had to last for more than three (3) months, the Contract may be terminated or cancelled on the initiative of either of the Parties without the right to ask for damages. Termination and or cancellation can only be effective after a formal notice sent by registered mail with notification of receipt fifteen (15) days in advance.
17.3. In particular assimilated to force majeure: any war, any act of strike and / or lockout preventing from the execution of the obligations independently whether it takes place or not in one or other of Parties and / or their subcontractors, riot, revolution, rebellion, military, terrorism, sabotage or piracy, epidemic, bad weather causing any damage which results to prevent the execution by one or Party from its obligations, a provision of legislative, regulatory and generally any binding act, from any competent authority preventing either of the Parties to perform its contractual obligations, accidents affecting production and storage of products, transportation strikes or one of its suppliers, fire, flood, downtime and energy supply and / or raw material stockouts, the fact of third parties and any matter likely to delay, prevent the execution of commitments.
17.4. If, upon the occurrence of force majeure, the Supplier has fulfilled his obligations in part or can only partly meet, he has the right to invoice the delivered or deliverable products separately and the Client is required to pay that invoice.
18. Applicable law
These General Conditions of Sale shall be governed and construed by the laws of France. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) are expressly excluded.
19.1 The Parties agree to try to resolve any disputes or litigation of any nature whatsoever amicably through negotiations between authorized officials.
19.2 The exclusive jurisdiction is given to the commercial court of the head office of the Supplier even in cases of appeal or plurality of defendants.
20 Acceptance by the Client
The present Conditions and prices are expressly agreed and accepted by the Client who declares and recognises having a perfect understanding and consequently waives his right to invoke any contradictory document, in particular his own purchase conditions.