A. Conditions of sale
The present General Terms and Conditions of Sale are written in French in their original version, which alone is authentic. They apply in their entirety as of 1 January 2017. They are inseparable from the current price list. They cancel and replace all other general terms and conditions of sale issued previously and which may appear on documents or agreed by any other means. They shall prevail over any general conditions of purchase or any other documents issued by the Customer, regardless of the terms thereof; any order sent to ENKI implies the unreserved acceptance of ENKI’s price list and these General Terms and Conditions of Sale. All other conditions emanating from the Customer, provided that they are not in contradiction with these General Terms and Conditions, shall only be valid if they have been accepted by ENKI, in a prior and express manner. The fact of not exercising, at any time, a prerogative recognised by these General Conditions of Sale, or of not demanding the execution of any stipulation of the agreement arising from the said conditions, shall not be interpreted in any way, either as a modification of the contract, or as an express or tacit renunciation of the right to exercise the said prerogative in the future, or of the right to demand the scrupulous execution of the commitments entered into herein.
2. Opening of an account
The opening of an account with ENKI is subject to a first order of a minimum amount of €1,500 exclusive of tax and subject to validation by the Financial Department after analysis of the documents provided by the customer.
The period of validity of offers and quotations made by ENKI is one month from their receipt. Any order sent to ENKI shall only become final after written confirmation by ENKI. However, in the absence of express acceptance of the order within 5 days of its receipt, it shall be considered as final.
4. Delivery time
Delivery times are given as an indication only and failure to meet them shall not under any circumstances give rise to cancellation of the order or payment of damages. Likewise, any delays shall not give the Customer the right to cancel the sale, to refuse the PRODUCTS, to apply penalties for delay, or to claim damages. ENKI shall not be held responsible in the event that delivery times are modified due to supply difficulties beyond its control, transport shortages or force majeure, as defined in Article C-5 below.
a. Time and place of delivery
Final delivery shall be made either by direct handover to the customer, or by simple notice of availability, or by delivery of the parts to a shipper or carrier designated by
The Customer or, in the absence of such designation, indicated by ENKI.
If the Customer does not collect the goods on the delivery date, ENKI may, at the Customer’s sole cost and risk, arrange for the removal, storage and insurance of the goods in its premises or in any other place, the Customer remaining fully liable for all its obligations, in particular payment, and ENKI declining any subsequent liability in this respect.
Unless otherwise agreed in writing, delivery shall be made “carriage paid” by ENKI to the usual delivery point defined by the Customer for all orders of an amount exceeding 590 euros excluding taxes. These conditions are valid for the execution of orders on French territory, excluding International, DOM, TOM and Corsica for which additional costs may be calculated.
Administrative costs apply for orders of less than €590 excluding VAT, the amount of these costs is fixed at €15 excluding VAT per order.
b. Transfer of risk
Regardless of the delivery method chosen by the parties, the transfer of risk always takes place when the PRODUCTS are handed over to the first carrier. All goods, even if shipped carriage paid, travel at the risk of the client. The customer must take recourse against the carriers in the event of shortages, losses, damage or delays.
However, for orders that refer to Incoterms, the transfer of risks is carried out according to the Incoterms in force.
c. Conformity – Acceptance
Verification of PRODUCTS
The number and condition of the PRODUCTS must be checked by the Customer in the presence of the carrier when the PRODUCTS are actually received; the costs and risks related to the verification are at the Customer’s expense.
Reservations regarding the conformity of the PRODUCTS and damage related to transport
Any reservation or dispute relating to the conformity of the PRODUCTS or relating to shortages and/or damage to the PRODUCTS must be noted on the delivery slip and confirmed to the carrier under the conditions of Article L 133-3 of the Commercial Code, by registered letter with acknowledgement of receipt, with a copy of the delivery slip concerned, by registered letter with acknowledgement of receipt to the registered office of ENKI, sent within 3 days of receipt of the PRODUCTS, failing which the reservations or claims will be precluded. The Customer must prove the existence of the defects, anomalies or shortages. ENKI reserves the right to carry out any on-site verification as soon as possible. If these conditions are not met, the PRODUCTS shall be deemed to be in conformity and ENKI shall not be held liable, the Customer being held liable for any damage suffered by ENKI as a result of failure to comply with this procedure. In the event of proven non-conformity, ENKI shall only be required to replace the PRODUCTS concerned, to the exclusion of any liability or compensation on any grounds whatsoever.
No return of PRODUCTS is accepted without the express prior agreement of ENKI. In case of return, the PRODUCTS must be in perfect condition and must be returned in their original packaging or wrapping. They must be returned within 8 days from the delivery date of ENKI’s prior agreement. Failure to comply with these conditions may result, at ENKI’s discretion, either in the refusal of the return of the PRODUCTS, or in the taking back of the PRODUCTS, with a penalty clause equal to 25% of the price, excluding tax, of the PRODUCTS that are the object of the return. The amount of the penalty clause may, if necessary, be offset against the amount of the refunds made for the return. Unless otherwise agreed, the PRODUCTS are returned “carriage paid”. The PRODUCTS will be replaced by identical products. In the absence of a replacement, the return of the PRODUCTS will result in their reimbursement by the establishment of a credit note on subsequent sales. The return of PRODUCTS will not give rise to any compensation to the Customer.
In all cases where ENKI’s liability is recognised, ENKI’s liability is limited to the net purchase price excluding taxes of the PRODUCTS in question.
6. Technical advice
The technical advice that ENKI has been or will be asked to give free of charge shall not in any way entail any liability for ENKI, in particular for the choice of the products ordered, their use or the industrial results that will be obtained.
Our guarantee is limited to that of our suppliers.
B. Unit price scales
Invoices shall be issued at the rate applicable on the day the PRODUCTS are ordered. They are denominated in euros and calculated exclusive of tax. Consequently, they shall be increased by the rate of VAT and transport costs applicable on the day of the order. ENKI reserves the right to modify its prices at any time. However, it undertakes to invoice the goods ordered at the prices indicated at the time the order is registered. Any change in prices shall be communicated at the latest within 30 days prior to its application.
2. Discounts and rebates
The proposed prices include the discounts and rebates that ENKI may grant in view of its results or the assumption of responsibility by the purchaser for certain services.
No discount will be granted in the event of advance payment.
C. Terms of payment
1. Terms of payment
Invoices are payable within 30 days net and may in no case exceed 60 days net in accordance with the provisions of the Law of Modernisation of the Economy of 24 July 2008. In Euros at ENKI’s registered office. Invoices shall be paid by any means of payment commonly accepted by commercial practice. Payment shall take place on the date indicated on ENKI’s invoices. The actual placing of the funds at the disposal of ENKI shall constitute payment in the sense of this article.
Customer on account, 1st order payment at the order, 2nd order payment for shipment. Non-account customer, payment on order.
2. Late payment
In addition, any payment made after the due date shall automatically and without formalities result in the payment of a late payment penalty based on the remaining sums due, equal to the rate of the ECB’s most recent refinancing operation, increased by 3 percentage points and the payment by the Customer by way of a penalty clause of a fixed indemnity fixed at 6% of the sums due, without prejudice to any interest, costs and fees that may be incurred by a legal procedure
In addition, as of 1 January 2016, the amount of the fixed compensation for collection costs due to the creditor in the event that the sums due are paid after this date, are 40 euros, (decree n°2012-1115 of 2 October 2012): Any company that does not pay within the stipulated time limits will ipso jure be liable to its creditor for a fixed compensation for collection costs, in addition to the late payment penalties.
3. Resolutive clause
Late or non-payment in whole or in part shall also entail the possibility for ENKI to immediately suspend any contract in progress and to render due all debts not yet due by the Customer to ENKI on any grounds whatsoever, and ENKI may also automatically and without formalities terminate the Contract resulting from these General Terms and Conditions of Sale, as well as all previous contracts, even if the date of payment is not yet due. In this case, the PRODUCTS must be returned at ENKI’s request, at the Customer’s expense and risk, without prejudice to any other damages; ENKI also reserves the right to retain any payments and deposits previously made by the Customer for any reason whatsoever. In the event of a payment incident, ENKI also reserves the right to withhold the PRODUCTS that have not been paid for and not yet effectively delivered to the Customer.
4. Ownership clause
The PRODUCTS are sold under retention of title until full payment has been made. Payment means payment of the price of the PRODUCTS, the costs related to the Sale and interest. In the event of non-payment, the Client must, at its own expense and risk, return the unpaid PRODUCTS, eight days after formal notice has been given by registered letter with acknowledgement of receipt, which has remained unsuccessful: the PRODUCTS in stock at the Client’s premises are presumed to be those unpaid. In this case, the Sale will be cancelled by operation of law, on the day of the request for restitution.
In the event that the Customer is placed under receivership, the Customer must inform ENKI within 24 hours. In addition, the Customer shall refrain from removing the packaging or labels on goods that exist in kind in the stocks and have not yet been paid for.
5. Force majeure
ENKI may not be held liable in the event of the occurrence of an event of force majeure. Events beyond ENKI’s control that it could not reasonably be expected to foresee, insofar as their occurrence makes the execution of its acts of government more difficult or more onerous, changes in the regulations applicable to these General Terms and Conditions of Sale or to the PRODUCTS, shall be considered as force majeure with regard to ENKI’s obligations, events of such a nature as to hinder the proper functioning of the business of ENKI, its suppliers or subcontractors (such as strikes, lockouts, total or partial unemployment, shortage of raw materials, accidents, machine breakdowns, fire, supply difficulties, interruption or delay in transport).
6. Applicable law – Settlement of disputes
These General Terms and Conditions of Sale are subject to French law, excluding any international convention. In the event of a dispute, only the Commercial Court of Tours shall have jurisdiction, even in the event of summary proceedings and notwithstanding multiple instances or parties, or the introduction of a guarantee.