ITOCHU France – General Conditions of Sale (the "Conditions")
1- Definitions
1.1 In these Conditions:
“Affiliates” means, in respect of any persons, any company that directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with that person (each of the words “control” or “controlled” meaning ownership of the issues voting capital of such party which is not less than 50%); “Buyer” means the buyer (including any agent of the buyer) who orders the Goods; “Contract” means the agreement for the sale and purchase of the Goods of which these Conditions form a part; “Contract Price” means the amount shown on the applicable invoice as the price of the Goods; “Delivery” means delivery of the Goods in accordance with clause 6; “Goods” means the goods to be provided by the Seller under the Contract; “Seller” means ITOCHU France and its Affiliate thereof.
2– Application of Terms
2.1 The sale of the Goods including the terms of the price as well as the discounts and/or rebates made by the Seller to the Buyer shall all be governed by the Conditions.
2.2 These Conditions constitute the sole basis of the commercial negotiations. They have been communicated beforehand to the Buyer who hereby acknowledges having full knowledge thereof and expressly accepts them.
2.3 The sale of the Goods shall be made only by a written order placed by the Buyer and submitted it to the Seller. No order shall be binding upon the Seller until it is accepted by the Seller in writing. The Seller reserves the right to accept or reject any order of the Goods in its sole discretion.
2.4 All estimates in respect of the price given and order accepted by the Seller are therefore issued under and subject to these Conditions, subject to the possible conclusion of particular conditions of sale between the Seller and the Buyer. If there is a term which is deviated from the term of these Conditions which has been specifically and mutually negotiated and agreed between the Seller and the Buyer, that term shall prevail.
3- Specification and Quantities
3.1 The Goods are supplied, if applicable, in accordance with the Seller’s standard specifications and characteristics defined by the Seller.
3.2 The Seller and the Buyer may agree to make some modifications to the Seller’s standard specifications and characteristics, provided that the Seller reserves the rights to make such modifications without prior written notice to the extent as it or its suppliers consider desirable in the circumstances.
3.3 All technical information and particulars of the Goods and performance given by the Seller are given as accurately as possible but are not to be treated as legally binding or as forming part of any Contract with the Buyer unless confirmed or agreed by the Seller in writing.
4- Title
4.1 The property of the Goods shall remain in the Seller as legal and equitable owner until the Buyer has paid the Contract Price and any additional sums owing to it under each Contract in full and, in the case of payment by cheque, until such cheque has been cleared.
4.2 Until such time as the Buyer becomes the owner of the Goods pursuant to clause 4.1 above, the Buyer will maintain records of them and store them on its premises separately from its own goods or those of any other person and in a manner which makes them readily identifiable as the Goods of the Seller. The Seller shall be entitled to inspect the Goods at all reasonable times without prior notice and the Buyer shall not remove any mark placed on any of the Goods or packaging by the Seller identifying such Goods or packaging as being supplied by and belonging to the Seller.
4.3 If any payment under any Contract between the Buyer and the Seller is omitted or if the Buyer fails to observe or perform any obligation under such Contract or if an event referred to in clause 10 occurs with respect of the Buyer, the Buyer, immediately upon the written notice of the Seller, shall return any unpaid Goods to the Seller (without prejudice to any Seller’s other rights and remedies) at its sole costs and expense. It is understood that, in the event of a Buyer’s default in payment of any amount due or failure to perform any obligation under such Contract, the Seller may, without prejudice to any other action or claim it may have, reclaim any unpaid Goods and/or resell such Goods, whether or not they have been delivered to the Buyer.
4.4 The Buyer shall not (and must not purport to) dispose of, transform, sell, mortgage, pledge, encumber or part with possession of the Goods nor allow any lien or encumbrance to arise over them until the related price has been paid in full in accordance with this clause 4.
5- Transfer of risks
5.1 The risk of loss of and damage to the Goods shall pass to the Buyer in accordance with any specified Incoterms, if applicable, and, otherwise, on the Delivery, and the Buyer undertakes to act as a custodian for any Goods so delivered until title to them has passed to it pursuant to clause 4.1.
5.2 To the maximum extent permissible under the applicable law, the Seller shall not be liable for any loss of any kind to the Buyer arising from any damage to the Goods occurring after the risk passes to the Buyer however caused, nor shall any liability of the Buyer to the Seller be diminished or extinguished by reason of such loss.
5.3 From the time when the risk has passed to the Buyer until the Contract Price (together with any ancillary payments owed by the Buyer to the Seller) is paid in full and the title in the Goods shall have passed to the Buyer, the Buyer shall (a) indemnify the Seller against all losses, damages, actions, claims, demands, suits, charges, costs, fees and expenses arising out of or in connection with the Goods; (b) insure and keep insured the Goods in an amount at least equal to the Contract Price of the Goods; (c) hold upon trust for the Seller absolutely all proceeds of such insurance; and (d) adequately store the Goods in accordance with the Seller’s instructions.
6- Delivery
6.1 Delivery of the Goods shall be effected with any applicable Incoterms (if agreed inwriting as part of the Contract) and otherwise as referred to in clause 6.2 or 6.3 (as the case may be).
6.2 Where delivery of the Goods is to be effected or arranged by the Seller, Delivery shall be deemed to have occurred when the Goods are passed to the carrier, whether or not the Seller’s or the Seller’s supplier’s agent.
6.3 Where delivery of the Goods is not to be effected or arranged by the Seller, the Buyer shall collect and remove the Goods from the Seller’s or, as the case may be, the Seller’s supplier’s premises, no later than 3 working days after the Seller shall have notified the Buyer that the Goods are ready for collection and Delivery shall occur when the Goods are actually collected by or on behalf of the Buyer. In the event of failure by the Buyer to arrange collection of the Goods as set out above, the Seller shall be entitled to charge the Buyer a deposit fee established in good faith by the Seller for each day of delay and, if the delay in collection persist for longer than 30 days, to terminate the related Contract by giving written notice thereof to the Buyer.
6.4 Save where stipulated in the Contract, insurance will not be effected by the Seller. Where so stipulated, insurance will be effected by the Seller at the risk and for the account of the Buyer on terms within the Seller’s discretion.
6.5 All Delivery dates are estimates only and time of Delivery shall not be of the essence of the Contract.
6.6 The Seller shall be entitled to deliver the Goods in one or more consignment unless otherwise expressly agreed and each consignment or delivery shall constitute a separate and independent contract.
6.7 If the Buyer has defaulted on any payment to the Seller under a Contract or if the Seller reasonably believes that an event referred to in clause 10 has or may occur, the Seller may in its own discretion stop any Goods in transit prior to Delivery. In the event that the Seller exercises this right the Buyer shall not be required to pay for the Goods which have not been delivered.
7- Liability and Indemnity
7.1 The Buyer agrees that the Seller shall not be liable for any defects in the Goods sold other than in accordance with these Conditions. In addition, to the maximum extent permitted by the applicable law, the Seller shall not be liable to the Buyer or any third party for any injury, loss or damage caused by any defect in the Goods or any negligent act or omission by the Seller, its employees, contractors or agents.
7.2 The Seller’s liability (if any) whether in contract, tort or otherwise in respect of any defect in the Goods shall be limited to making good, by repair or at the Seller’s option by the supply of a replacement, any such defect or, at the Seller’s option, to payment of an amount not exceeding the Contract Price of the Goods.
7.3 The Seller shall in all circumstances only be liable to the Buyer for the direct loss arising out of the Seller’s default, with the exclusion of any indirect or consequential damages.
7.4 The Buyer shall indemnify the Seller against any claim made by any third party and all damages awarded against the Seller and all costs and disbursements (including legal and counsel fees) incurred by the Seller arising from the use by any third party of the Goods which have been modified, combined, processed, treated or adapted by the Buyer or the Buyer’s agents or customers.
8- Price and payment
8.1 The price applicable for the sale of the Goods is the price determined by the Seller. For this purpose, the Seller shall provide the Buyer with its price list and any applicable discounts and rebates as attached to these Conditions.
8.2 In any case, the Seller reserves the right to modify the prices in the price list at any time. If the Seller changes the prices in the price list, the Seller shall communicate an updated price list to the Buyer in a reasonably advanced time of its implementation.
8.3 The Price is strictly net unless otherwise quoted. The Seller shall be entitled to add to the Contract Price valued added tax, import or customs duty (and any other applicable taxes) at the rate applicable on Delivery.
8.4 Unless otherwise specified in the applicable invoice, the Price is payable in full and in one single payment within 30 days from the date of the invoice.
8.5 In the event of a non-payment default, the Seller reserves the right to charge interest (both before and after judgement) on any overdue account at the rate applied by the European Central Bank to its most recent main refinancing operation plus 10 points of percentage. Where the Buyer is not operated its business in France, the Seller reserves the right to change such a rate subject to applicable local rules.
8.6 The Buyer shall automatically owe the Seller a fixed compensation for recovery costs equal to 40 euros. The Seller reserves the right to claim an additional compensation amount when the recovery costs incurred by the Seller exceed the amount of 40 euros.
8.7 Without prejudice to the right of the Seller under clause 8.5 and 8.6, the Buyer shall pay the Seller a penalty at the rate of 1 % of the price value of the unpaid order for each day from the date of a non-payment default provided that the amount of the penalty shall not exceed 15% of the price value of the unpaid order in question. If the amount of penalty were to exceed the 15% cap aforementioned, then the Seller shall be entitled to terminate the Contract with immediate effect without prejudice to any damages and losses that the Seller shall be entitled to claim against the Buyer.
8.8 The Seller shall also be entitled to reimbursement of all external or additional costs and expenses reasonably incurred in the enforcement of its rights under this Contract, including but not limited to, the payment of legal fees and expenses whether incurred before or after the commencement of legal proceedings.
9- Defects
9.1 The Buyer shall accept the Goods from the seller’s carrier only after ensuring, in its presence, that the package does not show any appearance of damage of any kind and shall inspect the Goods for any damage, defects or non-conformity of the Goods from the agreed specifications (each a “Defect”). If the Buyer believes that the Goods are affected by a Defect, then it shall promptly give a written notice thereof to the Seller together with any reasonable evidence supporting the claim (a “Claim Notice”).
9.2 In the event that the Buyer is a professional of the same specialty to the Seller, the Seller shall only be liable for the Defect ensuing within 30 calendar days from the applicable date of Delivery of the Goods, provided however that the Buyer shall under penalty of forfeiture of the relevant right, give the Claim Notice to the Seller within 5 working days after becoming aware of the existence of the Defect (with regard to Defects that would have been apparent on inspection). In all other cases, the Seller shall remain liable for such Defect under the conditions provided by applicable local rules.
9.3 Upon receipt of a Claim Notice, the Seller reserved the right to inspect the Goods and provide the Buyer with a written report on the Claim Notice as soon as practicable but in any event within 60 calendar days of receipt of the relevant Claim Notice. If the Buyer wishes to challenge the Seller’s determination on the Claim Notice, it shall be entitled to refer the matter for final determination by an independent third party technical expert chosen jointly by the Buyer and the Seller within 10 calendar days of receipt of the aforementioned Seller’s report or expiry of the aforementioned 60 days review period (whichever date is earlier).
9.4 If the Defect is ascertained pursuant to the procedure set out above, the Seller shall cure such Defect as deemed fit as its sole discretion by: (a) refunding the Buyer for the cost of the Defective Goods; (b) giving the Buyer a discount on the price of the Goods to reflect the reduction of value as appropriate; and/or (c) replacing or repairing the Defective Goods at the Seller’s costs.
9.5 In any event, the Buyer shall not return any Goods without the prior written agreement of the Seller. If the Goods are returned without such consent the costs of re-delivery to the Seller and the risk of loss and damage to the Goods will remain with the Buyer. The Seller’s certificate as to the weight or quantity of returned Goods received by it shall be final and binding in the absence of manifest error.
9.6 It is understood that, in the event of any pending complaint or claim made by the Buyer in respect of any Goods, the Seller may suspend further deliveries of such Goods until the outstanding complaint or claim has been finally agreed or determined and in such an event the applicable date for Delivery shall be postponed accordingly.
10- Default and Insolvency
10.1 Without prejudice to its other rights under these Conditions, if the Buyer defaults or its otherwise in breach of its obligations to the Seller under any Contract, the Seller may terminate such Contract and any other then outstanding Contracts with the Buyer unless the defaulting party has fully remedies its breach within 15 days of being notified in writing of the breach.
10.2 The Seller shall also be entitled to terminate any Contract by giving a notice thereof to the Buyer with immediate effect if: (a) the Buyer becomes insolvent or the Seller reasonably considers that the Buyer may become so within following 3 months subject to the applicable mandatory rules; (b) the Buyer takes any action or is subject to third party actions which materially reduce its ability to freely dispose of its assets and also the Seller has reason to believe that such depletion of assets may impact on its ability to regularly and promptly meet its obligations towards the Seller; or (c) the Buyer disposes of or ceases or threatens to cease to carry on all or a substantial part of its business.
11 – Force Majeure
11.1 Under Article 1218 of the French Civil Code, a force majeure means any event preventing one party from performing its obligations, beyond its control, which could not be reasonably anticipated on the day of conclusion of the Contract and cannot not be avoided by appropriate measures. Under the Conditions, a force majeure includes but is not limited to war, natural disaster, epidemics or any change in the laws or regulation governing the activity of one of the parties or any act or decision of any public authority independent of the parties that may prevent the performance of the Contract.
11.2 No party may be considered as liable for any breach of the Contract due to an event of force majeure.
11.3 If an event of force majeure lasts more than 90 days from the date that the affected party by the force majeure given a written notice to the non-affected party, the parties agree to discuss the manner to deal with such an exceptional situation. If the parties fail to find an agreement on the consequences to give to such a situation within 30 days following the period of the 90days, the Contract may be terminated with immediate effect without any compensation incurring to none of the parties except in respect of prior breaches and any outstanding amounts become immediately due and payable.
12. General
12.1 The Buyer shall not be entitled to assign, transfer or dispose of any interest in this Contract without the consent of the Seller. The Seller may assign and transfer its rights and obligations to any person effective by delivery notice to that effect to the Buyer signed by the Seller and the assignee and transferee.
12.2 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not. Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract. Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
12.3 If any provision or parts of the Conditions is held by any competent authority to be invalid or unenforceable the validity of the other provisions of the Conditions and the remainder of the Conditions in question shall not be affected.
12.4 The Buyer shall not, without the written consent of the Seller, disclose to any third party any technical data, know-how or confidential information disclosed by the Seller to the Buyer. The Buyer shall not copy any such information and shall rerun the same to the Seller on demand. The copyright in all brochures, specifications, drawings and technical descriptions supplied by the Seller to the Buyer shall remain the property of the Seller.
12.5 Any notification or other communication to the Seller or the Buyer may be given by post or by fax. Any notice to the Buyer shall be sent to the address or fax number specified by the Buyer at the time of ordering and any notice to the Seller shall be given to the address or fax number specified by the Seller in this Contract or as otherwise notified to the Buyer. Communications shall be deemed for all purposes to have been received and given 48 hours after posting or at the time of transmission, if sent by fax.
12.6 If the Buyer comprises more than one person each such person shall be liable for the acts (or omissions) of the other and references to “Buyer” shall refer to each and all such persons.
12.7 A person who is not a party to this Contract shall have no right under the Contract.
12.8 The Contract shall in all respects be construed and operated as a contract made in France and shall be governed in all respects by French law.
12.9 Any disputes arising out of or in connection with directly or indirectly the Conditions shall be subject to the exclusive jurisdiction of the commercial court of Paris even in case of several defendants, incidental claims, introduction of third party or provisional order.
12.10 The Conditions have been initially written in French. In case of contradiction between the French and the English versions and/or any difficulty relating to the interpretation of the English version, the French version shall prevail.
© ITOCHU France (2022)
ITOCHU France
General Conditions of Purchase
1. Definitions
1.1 In these Conditions:
“Company” means ITOCHU France;
“Contract” means the acceptance of the Order including these Conditions whether by written or oral confirmation by the Seller or by the Seller effecting delivery of the Goods;
“Goods” means the goods agreed in the Contract to be purchased by the Company from the Seller;
“Order” means the Company’s written order and instructions to supply the Goods;
“Seller” means the person who accepts the Company’s Order.
2. Application of Terms
These Conditions are drafted given the specific conditions of purchase of the Goods by the Company and are intended to be adapted following negotiations the general conditions of sale of the Seller which have been communicated to the Company in advance. Therefore, when the Conditions are accepted by the both parties, the Conditions shall apply to the Order.
3. Quality and Defects
3.1 The Goods must be of good design and good quality without defect and in complete conformity with the Order according to the technical specifications or model supplied by the Company to the Seller on behalf of the Company’s customers.
3.2 The Company’s rights under these Conditions are in addition to the statutory conditions implied in favour of the Company by the applicable law.
3.3 At any time, including prior to delivery of the Goods, the Company shall have the right to inspect and test the Goods.
3.4 After the delivery of the Goods at the designed place of the delivery, the Company shall inspect the Goods before temporary accepting the Goods. The definitive acceptance of the Goods by the Company could indeed only occur once the Goods have been accepted by its customers.
3.5 If the results of such inspection or testing cause the Company to be of the opinion that the Goods do not conform or are unlikely to conform with the Order or to any specifications and/or patterns supplied or advised by the Company to the Seller (the “Defect”), the Company shall inform the Defect to the Seller and the Seller shall immediately take such action as is necessary to remedy the Defect in its own costs and expenses and in addition, the Company shall have the right to require and witness further testing and inspection.
3.6 If the Company and the Seller fail to agree the Defect, the parties shall agree to appoint an independent third-party expert who will provide them with its own observations (the “Expert”).
3.7 If the Expert concludes that the Goods are the Defect and/or do not conform with the Order, the Seller shall implement all the necessary corrective measures and actions to remedy the situation and shall bear all the related costs and expenses including any fees, costs and expenses incurred by appointing the Expert.
3.8 Under clause 3.7 above, if the Seller shall be considered in breach of its obligations, the remedies available to the Company under clause 5.7 shall apply accordingly. In addition, in the event that the Defect confirmed by the Expert is not resolved or remedied within 30 days from the date of report that the Expert issued, the Company shall be entitled to terminate the Contact immediately without prejudice to any damages that may be claimed to the Seller.
4. Indemnity
The Seller indemnifies the Company against any direct harmful consequences:
a) of non-compliant or defective Goods;
b) of an infringement of intellectual property rights caused by the use, manufacture or supply of the Goods; and/or
c) of any claim, of any kind whatsoever, that may be made against the Company in connection with the Goods.
5. Delivery
5.1 The Goods shall be delivered, carriage paid, to the Company’s place of business or to such other place of delivery as is agreed by the Company in writing prior to the delivery of the Goods. The Seller shall off-load the Goods as directed by the Company.
5.2 The date for delivery shall be specified in the Order, or if no such date is specified then, delivery shall take place within 28 days of the date of placement of the Order.
5.3 The Seller shall invoice the Company as per applicable mandatory rules.
5.4 The Seller shall ensure that each delivery is accompanied by a delivery note which shows, inter alia, the Order number, date of placement of the Order, number of packages and contents and, in the case of a partial delivery, the outstanding balance remaining to be delivered.
5.5 Time for delivery shall be of the essence.
5.6 Unless otherwise stipulated by the Company in the Order, deliveries shall only be accepted by the Company in normal business hours.
5.7 Except in the case of a force majeure: (a) if the Goods are not delivered on the due date then without prejudice to any other rights which it may have, the Company, at its sole discretion, reserves the right to apply a penalty. Such a penalty will be determined on the basis of the price value of the Order to be delivered as follows: (i) 1% of the total price value excluding amounts of taxes incurred of the Order to be delivered for each day of delay during the first 30 days from the due date; and (ii) 3% of the total price value excluding amounts of taxes incurred of the Order to be delivered for each day of delay during the next 60 days from the due date provided that the total price value of the penalty does not exceed 15% of the total price value excluding amounts of taxes incurred of the Order; and/or (b) in the event of the progress of the Order is delayed for more than 90 days, the Company shall be entitled to terminate, without prejudice to any other rights that it may have, and/ or cancel the Order without any prior notification. In addition, the Company shall be entitled to claim to the Seller for the payment of additional costs, loss and/or expenses generated by the implementation of an alternative solution which becomes necessary in order for the Company to achieve the purposes of the Contract.
5.8 If the Seller requires the Company to return any packaging material to the Seller, that fact must be clearly stated on any delivery note delivered to the Company and any such packaging material will only be returned to the Seller at the Seller’s cost.
5.9 Where the Company agrees in writing to accept delivery by instalments, the Contract will be construed as a single contract in respect of each instalment and the agreed date for each delivery shall become binding on the Seller. It is understood that failure by the Seller to deliver any one instalment shall entitle the Company to make use of the remedies set out clause 5.7 above, at its sole discretion, with regard to the whole Contract or only to the instalment whose delivery has not been met.
6. Risk/Property
The Goods shall remain at the risk of the Seller until delivery to the Company is complete (including off-loading and stacking) when ownership of the Goods shall pass to the Company.
7. Price
7.1 The price of the Goods shall be stated in the Order and unless otherwise agreed in writing by the Company shall be exclusive of value added tax but inclusive of all other charges.
7.2 The Seller shall not purport to make any variation in the price of the Goods or apply any extra charge (for any reason) without the Company’s prior written consent and any such variation shall not be binding on the Company.
8. Payment
8.1 The Company shall pay the price of the Goods within 30 days of the date of issuance of the invoice by the Seller to the Company.
8.2 In case of delay in payment by the Company, the Company shall pay to the Seller the amount of the invoice calculated on the basis of a rate equal to 3 times of the legal interest rate in force.
8.3 The Company shall also pay to the Seller a lump-sum indemnity amount equal to 40 euros for the Seller to recover the costs.
8.4 If the parties reciprocally become debtor and creditor of one another, they agree that the sums due by the Company to the Seller will be settled by means of offsetting the amount of debt owed by the Seller to the Company.
9. Confidentiality
The Seller shall keep in strict confidence all technical or commercial know-how, specifications, inventions, process or initiatives which are of a confidential nature and have been disclosed to the Seller by the Company or its agents and any other confidential information concerning the Company’s business or products which the Seller may obtain and the Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know for the purpose of discharging the Seller’s obligations to the Company and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Seller.
10. The Company’s Property
Materials, equipment, tools, dies, moulds, copyrights, design rights or any other forms of intellectual property rights in all drawings, specifications and data supplied by the Company to the Seller or not so supplied but used by the Seller specifically in the manufacture of the Goods shall at all times be and remain the exclusive property of the Company, but shall be held by the Seller in safe custody at its own risk and maintained and kept in good condition by the Seller until returned to the Company and shall not be disposed of other than in accordance with the Company’s prior written instructions, nor shall such items be used otherwise than as authorised by the Company in writing.
11. Termination
11.1 The Company shall have the right at any time and for any reason to withdraw from and terminate any Contract in whole or in part by giving the Seller written notice thereof, whereupon all work on such Contract shall be discontinued and the Company shall pay to the Seller fair and reasonable compensation for work-in-progress at the time of termination but such compensation shall not include loss of anticipated profits or any special or consequential loss or damage.
11.2 Without prejudice to any other rights under these Conditions, in the event of any default by either party of these Conditions, the non-defaulting party shall be entitled to terminate the corresponding Contract unless the defaulting party has fully remedies its breach within 30 days of being notified in writing of the same.
11.3 The Contract may also be terminated in advance by the Company in case of liquidation or judicial reorganisation of the Seller in accordance with the legal and regulatory conditions in force and subject to any mandatory rules of public policy that may apply.
11.4 The termination of any Contract, however arising, will be without prejudice to the rights and duties of the Company accrued prior to termination. The Conditions which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
12. Force Majeure
12.1 Under Article 1218 of the French Civil Code, a force majeure means any event preventing one party from performing its obligations, beyond its control, which could not be reasonably anticipated on the day of conclusion of the Contract and cannot not be avoided by appropriate measures. Under the Conditions, a force majeure includes but is not limited to war, natural disaster, epidemics or any change in the laws or regulation governing the activity of one of the parties or any act or decision of any public authority independent of the parties that may prevent the performance of the Contract.
12.2 No party may be considered as liable for any breach of the Contract due to an event of force majeure.
12.3 If an event of force majeure lasts more than 90 days from the date that the affected party by the force majeure given a written notice to the non-affected party, the parties agree to discuss the manner to deal with such an exceptional situation. If the parties fail to find an agreement on the consequences to be given to such a situation within 30 days from the expiry of the period of 90 days, the Contract may be terminated with immediate effect without any compensation incurring to none of the parties except in respect of prior breaches and any outstanding amounts become immediately due and payable.
13. Unforeseeable event
The Seller expressly excludes the application of Article 1195 of the French Civil Code. The Seller hereby accepts to assume the risks related to an unpredictable change of circumstances in regard to the date of conclusion of the Contract, which would make the performance of the Contract unreasonably burdensome for the Seller and waive to claim for re-negotiation and/or judicial review of the Contract on this ground.
14. General
14.1 The headings appearing in the Conditions are for guidance only and shall not in any way be deemed to affect the interpretation or effect thereof.
14.2 The Seller shall not be entitled to assign, transfer or dispose of any interests and obligations in this Contract without the consent of the Company. The Company may assign and transfer its right and obligations hereunder to any person effective by delivery of a notice to that effect to the Seller signed by the Company and the assignee and transferee.
14.3 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
14.4 Failure or delay by the Company in enforcing or partially enforcing any provision of the Seller will not be construed as a waiver of any rights under the Contract. Any waiver by the Company or any breach of, or any default under, any provision of the Contract by the Seller will not be deemed a waiver of any subsequent breach or default and will not affect after the other terms of the Contract.
14.5 Any notice or other communication to the Seller or the Company may be given by post or by fax. Any notice to the Company shall be sent to the address and/or fax number of the Company in its acceptance of the Order or as otherwise notified by the Company. Communications shall be deemed to have been received and given 48 hours after posting or at the time of transmission, if sent by fax.
14.6 If any provision of the Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Conditions and the remainder of the condition in question shall not be affected.
14.7 If more than one person or entity undertakes to sell the Goods to the Company under the same Contract, each of these persons shall be jointly and severally liable for the obligations of the Seller under such Contract, and any reference to “Seller” in these Conditions shall be construed accordingly.
14.8 the Contract shall in all respects be construed and operated as a contract made in France and the construction, validity and performance of the Contract shall be governed in all respects by French law.
14.9 Any disputes arising directly or indirectly from the Conditions shall be subject to the jurisdiction of the commercial court of Paris even in case of several defendants, incidental claims, introduction of third parties or provisional orders.
14.10 The Conditions have been initially written in French. In case of contradiction between the French and the English versions and/or any difficulties relating the interpretation of the English version, the French version shall prevail.
© ITOCHU France (2022)