Terms and Conditions
1. General
1.1 Scope of the contract
The following form an integral part of the contract: – these General Terms and Conditions, – OXYMONTAGE's general technical documentation, – the order acknowledgement, accompanied where applicable by any other documents specifically referenced therein, including product specifications. The order acknowledgement cancels and replaces in its entirety all conflicting contractual provisions submitted by the customer, as well as all oral or written communications between the parties not included in the order acknowledgement. The customer's signature on the order acknowledgement, or the absence of any written reservations from the customer within 3 days of receiving the order acknowledgement, constitutes final acceptance by the customer of all its provisions, including these General Terms and Conditions. – the delivery note, – the invoice.
The following are not part of the contract: commercial documents, catalogs, price lists not mentioned in the order confirmation.
1.2 Application of the general conditions
In accordance with current regulations, these general conditions of sale and provision of services are systematically communicated to all customers, to enable them to place an order with OXYMONTAGE.
These conditions apply to all sales and/or services provided by OXYMONTAGE, unless specifically agreed in writing between the parties prior to the order.
Placing an order implies the customer's full and unreserved acceptance of these general conditions.
No special conditions (including purchase conditions) may prevail over these conditions without the prior formal written acceptance of OXYMONTAGE. Therefore, any conflicting conditions (general purchase conditions, etc.) stipulated by the customer will, in the absence of express written acceptance , be unenforceable against OXYMONTAGE, regardless of when they may have been brought to its attention.
2 - Order
2.1 Only orders placed in writing by a customer may be usefully invoked by the customer. In any event, an order may only be executed if the customer is up to date with their previous orders and has fulfilled the agreed conditions, in particular payment.
The customer is definitively bound upon placement of their order or signature of a quote. If the order or quote is signed by several purchasers, they are jointly and severally responsible for its successful completion.
In any event, the dispatch of the goods, the manufacture of the specific product, the order by OXYMONTAGE of the goods and raw materials necessary for the execution of the contract, constitutes acceptance by OXYMONTAGE.
2.2 In the case of a first order, the customer will be required to open a customer account and to provide in particular all the information requested by OXYMONTAGE and necessary for the execution of the order (identity of the company, head office, etc.).
2.3 The characteristics and information disseminated in our prices and commercial documents are not contractual, may be modified at any time without notice and therefore cannot be enforced against OXYMONTAGE.
3 - Price
3.1 For all sales and services, the applicable prices are those in effect on the day of the order, in accordance with the general scales or established quotes.
3.2 Our prices are in euros, excluding taxes and packaging and shipping.
3.3 In the event of an untimely variation in the cost of any of the raw materials or energy exceeding 5% observed over a period of more than two months, either party may consequently request an adjustment of the price of the products. The value of the new price will be based on an open calculation of the increase or decrease in the cost of the products within 30 days of the request.
The actual reduction or increase in production costs will take effect at the end of the 30-day period above.
3.4 In the event of a change by the legislator in the rate of applicable taxes, and in particular VAT, this will, by express agreement, be automatically passed on to the customer.
4 – Intellectual property – Confidentiality
4.1. Intellectual Property : The intellectual property rights and know-how incorporated in the documents provided and the products delivered remain the property of OXYMONTAGE. Any transfer of intellectual property rights or know-how must be the subject of a contract with OXYMONTAGE.
OXYMONTAGE reserves the right to use its know-how and the results of its own research and development work.
4.2 Confidentiality : Studies, plans, drawings and documents submitted or sent by OXYMONTAGE remain its property; therefore, they may not be communicated to third parties by the client under any circumstances, without the express written authorization of OXYMONTAGE.
5 – Delivery – Execution: deadline
5.1 Our lead times are given for information purposes only. We reserve the right to split orders according to the production capacities of our factories and suppliers.
Our delivery or execution deadlines are indicated in the specific conditions (offers, quotes, order confirmation), as accurately as possible but are dependent in particular on the supply and manufacturing possibilities of OXYMONTAGE and our suppliers and service providers.
In the event of an order by a professional and/or commercial customer, exceeding the indicative deadlines cannot give rise to damages, withholding, or cancellation of current orders.
5.2 In particular, all events beyond its control are considered to be cases of force majeure releasing OXYMONTAGE from its obligation to deliver, namely in particular strikes by all or part of its staff, fire, flood, war, epidemics, production stoppages due to unforeseen breakdowns, as well as any other cause attributable to OXYMONTAGE's suppliers and/or service providers.
5.3 In all cases, delivery on time can only take place if the customer is up to date with its obligations towards OXYMONTAGE, whatever the cause.
5.4 The delivery period only begins to run from the moment the customer's file is deemed complete, which implies in particular compliance with the agreed payment conditions, and the provision by the customer of all technical, commercial, financial and administrative information or documents necessary for the execution of the order. Any delay in the validation of the plans by the customer will inevitably lead to a delay in the delivery time.
6 – Transport – Complaints
6.1 Transport and conveyance costs, packaging and handling costs are always borne in addition by the customer, unless expressly agreed otherwise in writing when ordering.
Goods always travel at the recipient's risk and peril, regardless of the mode of transport, whether the shipment is made with postage paid or not.
We reserve the right to choose the carrier and method of chartering.
Under no circumstances can OXYMONTAGE be held responsible for the mode of transport chosen and the rate applied by the carrier; even in the event that OXYMONTAGE has chosen the carrier and the mode of chartering.
In the event that the customer imposes a carrier of his choice, the transport costs will automatically be his responsibility.
6.2 The customer's attention is drawn to the need to take out all necessary insurance, where appropriate, and, if necessary, to issue all reservations against the carrier by registered letter within the legal time limits.
Claims for damage in transit, missing or lost goods must be made precisely and within the regulatory deadlines to the carrier, with a copy by registered letter with acknowledgment of receipt to the company OXYMONTAGE.
Complaints regarding the characteristics, quantity, weight of the goods delivered, or their possible non-conformity with the shipping slip, must be sent in writing to the headquarters of OXYMONTAGE within 72 hours of delivery.
Complaints must be made by registered letter with acknowledgment of receipt addressed to the management of OXYMONTAGE.
In the absence of a complaint within the applicable time limit and in the prescribed forms, the customer will be deemed to have accepted the goods without reservation, which will prohibit any recourse.
7- Retention of title
7.1 OXYMONTAGE retains ownership of the goods sold, wherever they may be located, until full payment of the price, including principal and any additional charges. Payment is understood to mean the actual receipt of the sums due. Therefore, when a check or bill of exchange is issued, payment is only considered complete upon actual and final receipt of funds.
Until that date and from the date of delivery, the customer assumes responsibility for any damage that these goods may sustain or cause, for any reason whatsoever, including during transport or in cases of force majeure. It is the customer's responsibility to take all necessary precautions and obtain appropriate insurance coverage for whomever it may concern. The customer is also prohibited from pledging the goods or transferring ownership to third parties.
The buyer undertakes to bring this retention of title clause to the attention of its customers.
7.2 In the event of staggered payment, and in the event of non-compliance by the client with one of the payment deadlines, OXYMONTAGE may demand by registered letter with acknowledgment of receipt, the return of the goods, at the expense and risk of the client, until the latter has fulfilled all of its obligations.
OXYMONTAGE may also, at its discretion, terminate the contract by registered letter with acknowledgment of receipt, with any deposits received remaining its property as a penalty clause . In this case, the goods will be immediately returned to the seller at the client's expense and risk.
In the event of a cessation of payments by the customer , OXYMONTAGE may immediately have an inventory of unpaid goods drawn up by a bailiff.
The customer will ensure that the identification of the goods is always possible, the goods in stock being however presumed to correspond to the goods paid for, whether or not these elements come from OXYMONTAGE.
The customer expressly acknowledges OXYMONTAGE's right to present itself at its premises and collect its unpaid goods, or goods of equivalent value, ownership of said items being immediately transferred to it, without any particular formality.
In the event of the goods sold by the customer being modified , with or without the incorporation of new material, the modifications made will be deemed to have been carried out on behalf of OXYMONTAGE.
The customer will inform OXYMONTAGE of any intervention or claim by a third party likely to infringe its rights to the products so that the latter can oppose it and take any precautionary measures to preserve its rights.
The client will inform OXYMONTAGE as soon as any collective proceedings are opened, failing which it will also incur contractual liability.
7.3 This clause is stipulated in the sole interest of OXYMONTAGE and may only be invoked by it. The customer may therefore not rely on it to force OXYMONTAGE to take back unpaid goods.
8 – Payment terms – Location :
8.1 Payment of invoices shall be made in all circumstances at the headquarters of OXYMONTAGE, by any means of payment having legal tender and within the specified time limit.
For the first order, or for any order placed on a customer account that has remained inactive for at least two years, the balance must be paid before departure.
8.2 Minor reservations mentioned on the goods receipt slip do not authorize the customer to withhold any sum whatsoever, pending full compliance.
8.3 Any possible dispute relating to invoicing must be made by registered letter to the head office of OXYMONTAGE, within eight days of receipt of the invoice.
In the absence of a dispute within the applicable time limit and in the prescribed forms, the customer will be deemed to have accepted the invoice without reservation, which will prohibit any recourse.
9 – Delay or failure to pay – Penalties
9.1 In the event of late payment, OXYMONTAGE may suspend all current orders, without prejudice to any other course of action.
9.2 Any late payment may, if not regularised within 8 days of formal notice sent by registered letter with acknowledgement of receipt, result in the application of a late payment penalty at the ECB refinancing rate plus 10 points.
Likewise, any late payment will result in a fixed compensation of 40 euros for recovery costs being payable.
9.3 In addition, the need to engage a law firm to initiate an amicable and/or legal recovery procedure will make payable, as a penalty clause , a minimum compensation equal to 20% of the sums due, without prejudice to the right to also claim damages for the harm suffered.
In any event, all fees and procedural costs will be borne by the debtor.
10 - Guarantee
The consideration of any guarantee can only be considered with prior written agreement from us.
OXYMONTAGE is required to deliver a product free from any defect that would make it unfit for its intended use. To this end, the customer agrees to provide it with all necessary documents and information.
10.1 Subject to the reservations in particular of §10.2, 10.3 and 10.4, the goods sold are guaranteed against any operating defect resulting from a material, manufacturing or design fault under the conditions below. The operating defect must appear within a period of 12 months from delivery for use of the goods in accordance with the order and our recommendations.
10.2 The customer is responsible for implementing the product under normal foreseeable conditions of use and in accordance with the safety and environmental legislation in force at the place of use as well as the rules of the trade. In particular, it is the customer's responsibility to choose a product corresponding to its technical needs and, if necessary, to check with the supplier the suitability of the product for the intended application. The customer is responsible for integrating the products into its own productions. Any advice provided by OXYMONTAGE, whether oral or in writing, before and during the use of the products is given in good faith without guarantee. This advice does not release the customer from its obligation to verify the suitability of the products supplied for the use for which they are intended.
10.3 The warranty is excluded in particular if the defective material or design comes from the customer, if the defect results from an intervention, interference or misuse by the customer or a third party, if the problem results from negligence (in particular poor operation, lack of maintenance, in particular of painting or lack of maintenance) or malicious intent, or from a lack of storage or conservation by the customer, and in any event if the defect observed results from force majeure.
The warranty is also excluded if the problem arises from the obsolescence or wear of the product or its parts. Furthermore, used equipment is not guaranteed, unless expressly provided otherwise in writing and agreed upon at the time of order.
Likewise, the OXYMONTAGE guarantee will be excluded in the following situations:
– damage caused to goods during transport;
– damage resulting from negligence, for example: malfunction, lack of maintenance and/or upkeep;
– damage due to misuse, lack of care or accidents, for example: incorrect use, transportation or storage, unsuitable usage or physical environment, removal or alteration of identification labels affixed to the products or parts, or failure caused by a product for which the supplier is not responsible, fire, negligence and any other cause not directly attributable to the supplier;
– damage due to normal wear and tear of products or parts;
– defective replacements, repairs, alterations, or modifications made without the express authorization of the supplier;
– use of parts or components that the supplier has not approved.
– damage during assembly, installation and repair that the supplier did not carry out;
– damages because OXYMONTAGE’s instructions were not followed;
– damages because the instructions for using OXYMONTAGE were not followed.
– delay or failure to pay in accordance with the terms agreed with the supplier;
10.4 In any event, for supplies which are not manufactured by OXYMONTAGE, the contractual guarantee is limited to that which OXYMONTAGE itself enjoys with its own suppliers.
10.5 The warranty is limited exclusively to the repair or replacement of defective parts.
Under no circumstances shall this warranty be extended beyond the period of repair or non-use of the equipment. It does not cover transportation, transfer, labor, or other costs incurred during repairs carried out under warranty.
OXYMONTAGE cannot be held liable for damages resulting from downtime of the installation, even if they are related to a repair under warranty, or for any other damage, including without limitation indirect, incidental, special, excessive or economic damages (including, but not limited to, any business interruption or loss of present or future profits) resulting from a defect or failure of the equipment.
If the client wishes to cover these risks, it is therefore up to him to take out insurance with an insurance company at his own expense.
10.6 Under penalty of forfeiture of the guarantee, the customer will be required to notify OXYMONTAGE of its request for cover under the guarantee by registered letter with acknowledgment of receipt as soon as possible after becoming aware of the appearance of an anomaly, defect or disorder.
10.7 In all cases, OXYMONTAGE reserves the right to verify the origin of the anomaly alleged by the customer.
The customer therefore agrees to make the product in question available to OXYMONTAGE, or to its designated representative or agent. In the event of a warranty claim, the customer must provide OXYMONTAGE with the equipment's serial number, as well as a description of the alleged malfunction. Any equipment returns will be handled by our shipping department (no collect shipments will be accepted).
In the event of an unjustified request for intervention, OXYMONTAGE will be entitled to charge for its intervention.
11 – Automatic termination clause
In the event of non-performance of these obligations by one party, this contract will be automatically terminated in favor of the other party without prejudice to any damages that may be claimed from the defaulting party. The termination will take effect 15 days after sending a formal notice that has remained unsuccessful.
Furthermore, in the event of serious or repeated breach by the customer, particularly in the event of more than two late payments, OXYMONTAGE may, if it so wishes, terminate the contract without prior formal notice.
12 – Dispute Resolution – Liability
12.1 French law alone is applicable.
The provisions of this charter apply equally to customers, whether French or foreign, it being the responsibility of the latter to inform themselves about the extent of the French and more generally Community legal obligations incumbent on OXYMONTAGE.
12.2 Any dispute with a commercial or professional client, concerning the application and interpretation of these general terms and conditions, their execution and the sales or service contracts concluded by the company OXYMONTAGE, or the payment of the price, shall be brought exclusively before the Commercial Court of BREST , regardless of the place of the order, delivery, and payment and the method of payment, and even in the event of a third-party claim or multiple defendants.
Bills of exchange do not constitute novation or derogation from this jurisdiction clause.
The attribution of jurisdiction is general and applies whether it is a principal claim, an incidental claim, an action on the merits or an interim relief.
The commercial or professional customer expressly and irrevocably accepts this, notwithstanding any rule (in particular that of article 333 of the code of civil procedure) or usual case law to the contrary.
13 – Miscellaneous
13.1 The fact that OXYMONTAGE does not avail itself at a given time of any of the clauses herein cannot constitute a waiver of the right to avail itself of this same clause at a later date.
13.2 All obligations of OXYMONTAGE under this agreement are only of means.
