GENERAL TERMS AND CONDITIONS OF BUSINESS, SALE, DELIVERY AND PAYMENT OF POK SAS
I. General, scope of application
1. Our deliveries and services shall be provided exclusively in accordance with the following General Terms and Conditions of Business, Sale, Delivery and Payment - hereinafter referred to as "Terms and Conditions".
2. References of the customer to his terms and conditions of business and/or purchase or similar are hereby contradicted. We do not accept any conflicting or deviating terms and conditions of the customer.
3. As an attachment to every price list, to every offer and to every order acknowledgement, we will send you our terms and conditions in their current version.
3.1 The use of our price list - as a whole or in parts - for ordering products and/or services from us shall be deemed as your consent to the receipt of our terms and conditions in their current version.
3.2 The use of our offer - as a whole or in parts - to order products and/or services from us shall constitute your acceptance of our terms and conditions in their current version.
3.3 If the customer does not object within one week after sending the order acknowledgement, this shall be deemed as your consent to receive our terms and conditions in their current version.
II. Price lists, offers and conclusion of contract, service content
1. Our general price list(s) and/or special price list(s) is/are non-binding and is/are valid until a new price list is published.
2. Individual offers to the customer for products and/or services not included in the price list are non-binding, unless expressly agreed otherwise in writing between us and the customer. Only the order shall be deemed a binding offer. Acceptance of the order shall be effected at our discretion exclusively by sending an order acknowledgement.
3. Details of quality and durability, technical data and descriptions (e.g. dimensions, weights, colours, materials, pictures, graphic representations, etc.) in our product information (e.g. technical data sheets, data sheets, etc.) and advertising materials (e.g. Catalogues, flyers, videos, e-mails, websites, etc.) as well as information provided by manufacturers or their assistants are not guarantees of quality and/or durability and/or other guarantees of the goods to be delivered by us, unless the information is agreed in an individual contract.
III. Prices, terms of payment, default of payment
1. The prices stated in the order acknowledgement at the time of conclusion of the respective contract shall apply. If a price is not expressly determined, the prices valid at the time the contract is concluded, shall apply in accordance with our general price list. The quantities determined by us shall be decisive for the calculation of the prices if the customer does not object immediately after receipt of the goods. In addition to these prices, the value added tax applicable on the day of delivery at the respective statutory rate as well as the costs for the packaging necessary for proper dispatch, the transport costs ex our works or ex our warehouse, the drayage costs and - if agreed - the costs of transport insurance shall be added. In the case of deliveries abroad, other country-specific charges may be added.
2. We reserve the right to adjust our prices appropriately if, after conclusion of the contract, cost changes occur as a result of collective wage agreements, price increases by upstream suppliers or exchange rate fluctuations. These price changes shall be notified in writing before the new prices come into effect. If the customer does not object to the new prices within one week of notification, they shall be deemed accepted.
3. For orders up to a net order value of 150,00€ we charge a one-time handling fee of 50,00€ per order. For orders up to a net order value of 500,00€ we charge a one-time handling fee of 30,00€ per order.
4. Unless otherwise agreed in writing, all orders are subject to prepayment before the start of production.
5. Our invoices are to be paid 7 days from the invoice date and without deduction, unless a different payment term has been agreed in the order acknowlegement. After expiry of the due date stated on the invoice, the customer is automatically in default.
6. The customer shall only have a right of set-off or a right of retention on the basis of undisputed or legally established claims or demands.
7. If the customer fails to pay due invoices, exceeds an agreed term of payment or if the customer's financial circumstances deteriorate after conclusion of the contract or if we receive unfavourable information about the customer after conclusion of the contract which calls into question the solvency or creditworthiness of the customer, we shall be entitled to make the customer's entire remaining debt due and demand payment in advance or provision of security or immediate payment of all our claims based on the same legal relationship after delivery has taken place, modifying therefore the agreements made. This applies in particular if the customer ceases payments, if insolvency proceedings have been applied for or instituted against the assets of the customer or if insolvency proceedings have not been instituted due to lack of assets.
8. In the event of justified doubt as to the solvency of the customer, in particular in the event of default in payment, we may, subject to further claims, revoke granted payment periods and make further deliveries dependent on the provision of other securities.
9. Non-payment of the purchase price on maturity constitutes a material breach of contractual obligations.
10. In the event of default in payment by the customer, we shall be entitled to demand default interest, in particular in the event of invoicing in euros, at a rate of 10% points above the main refinancing rate announced by the European Central Bank and applicable at the time the default occurs. Furthermore, if the debtor is in default, we are also entitled to payment of a lump sum of 40.00€. This shall also apply if the claim for payment is an advance payment or other instalment payment.
11. We only accept bank transfers as a means of payment. All prices are only valid for payment by bank transfer. If you use a method of payment other than bank transfer and we accept this method of payment, our prices are automatically increased by 10%.
12. The customer agrees to receive invoices electronically. Electronic invoices are sent to the customer by e-mail in PDF format.
IV. Time of delivery and performance, delay in performance
1. Delivery times are given as an indication. The indication of delivery periods is always subject to the contractual cooperation of the customer. If nevertheless agreed delivery times are exceeded due to circumstances for which we are responsible, the customer may withdraw from the contract after the fruitless expiry of a reasonable grace period set by him. Withdrawal must be made in writing.
2. We shall only be in default after expiry of a reasonable grace period set by the customer, which must be at least 30 working days.
In the event of force majeure and other unforeseeable, extraordinary circumstances for which we are not responsible, such as operational disruptions caused by fire, water and similar circumstances, failure of production facilities and machines, delivery delays or delivery failures by our suppliers as well as interruptions of operations due to shortage of raw materials, energy or labour, In the event of strikes, lock-outs, difficulties in procuring means of transport, traffic disruptions, official interventions, we shall be entitled to postpone delivery or performance beyond the duration of the hindrance plus a reasonable start-up period, insofar as we are prevented from fulfilling our performance obligations on time through no fault of our own by the aforementioned circumstances. If the delivery or service is delayed by more than 60 working days as a result of this, both we and the customer shall be entitled, to the exclusion of any claims for damages, to withdraw from the contract in writing under the conditions of these terms and conditions with regard to the quantity affected by the delivery disruption.
V. Transfer of risk, transport and packaging costs
1. Unless expressly agreed otherwise in writing between us and the customer, delivery shall be made ex works or warehouse and shall be collected there by the customer at his own risk and expense. In this case, the risk of accidental loss and accidental deterioration of the contractual delivery items shall pass to the customer after they have been made available for collection, upon receipt by the customer of notification that they have been made available. Otherwise, the risk of accidental loss and accidental deterioration of the delivery items shall pass to the customer upon handover to the carrier. This shall also apply in the case of carriage paid delivery or delivery insured by us for transport. The customer shall be exclusively responsible for loading the goods in a manner that is safe for transport and operation.
2. If, at the customer's request, packaging deviating from the standard is used, this will be charged additionally.
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6. Complaints due to transport damage must be made by the customer directly and immediately to the transport company with a copy to us within the statutory periods specified for this purpose.
7. Unless otherwise agreed in individual cases, the purchaser is responsible for compliance with statutory and official regulations concerning import, transport, storage and use of the goods.
VI. Obligations of the customer / securing of retention of title
1. The delivered goods shall remain our property until full payment of the purchase price and all other present or future claims to which we are entitled from the business relationship with the customer.
2. The customer is obliged to treat the object of purchase with care until complete acquisition of ownership; in particular he is obliged to insure it adequately at his own expense against loss and damage and destruction, such as fire, water and theft damage, at replacement value. The customer hereby assigns to us his claims arising from the insurance contracts. We accept this assignment.
3. The customer may neither pledge the goods owned by us nor assign them by way of security. He is not entitled to resell the delivered goods in the ordinary course of business until the purchase price and all other present or future claims to which we are entitled against the customer from the business relationship have been paid in full.
4. If the customer violates clause VI, points 1, 2 or 3, he hereby assigns to us all claims - including future and conditional claims - arising from a resale of the goods delivered by us with all ancillary rights in the amount of 110 % of the value of the goods delivered, ranking before the remaining part of his claims, in order to secure the fulfilment of all our claims mentioned in clause VI, point 1. We hereby accept this assignment.
5. As long as and to the extent that the customer fulfils his payment obligations towards us, he is authorised to collect the claims assigned to us against his customers within the framework of proper business management.
6. At our request, the customer shall prove individually his claims assigned to us and inform his debtors of the assignment with the request to pay to us up to the amount of our claims against the customer. We are entitled to inform the customer's debtors of the assignment ourselves at any time and to collect the claims. However, we shall not make use of these powers as long as the customer meets his payment obligations properly and without delay, an application to open insolvency proceedings against the customer has not been filed and the customer does not cease payments. However, if one of the aforementioned cases occurs, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for the collection of the claim and hands over the relevant documents."
7. In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing.
8. If the goods delivered by us under retention of title are processed, or mixed or combined with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the goods delivered by us (invoice amount including value added tax) to the other objects at the time of processing/mixing or combination. For the rest, the same shall apply to the object resulting from the processing as to the object of sale delivered under reservation.
If processing, mixing or combining takes place in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer assigns us proportionate co-ownership. In the ordinary course of business, the customer shall be entitled to dispose of the products newly created as a result of treatment or processing or transformation or combination or mixing in the ordinary course of business without pledging or assignment as long as he fulfils his obligations arising from the business relationship with us in good time.
The customer hereby assigns to us his claims from the sale of these new products to which we are entitled to ownership rights to the extent of our share of ownership of the sold goods as security. If the customer combines or mixes the delivered goods with a main item, he hereby assigns to us his claims against the third party up to the amount of the value of our goods. We hereby accept these assignments."
9. The customer also assigns to us the claims up to the amount of the value of our goods to secure our claims against a third party arising from the combination of our goods with a property.
10. In the event of breach of contract by the customer, in particular in the event of default in payment of more than 10% of the invoice amount for a not inconsiderable period, we shall be entitled - without prejudice to further (damage) claims to which we are entitled - to withdraw from the contract and demand the return of the goods supplied by us. After taking back the goods delivered by us, we shall be entitled to sell them. The proceeds from the sale shall be set off against the customer's existing liabilities towards us minus reasonable recovery costs.
VII. Rights of the customer in case of defects
VIII. Rights and obligations of our company
IX. Limitation of claims
1. The return of the defect-free goods delivered by us is excluded. If, exceptionally, we agree to the return of defect-free goods with a goods value of >200.00 Euro, a credit note shall only be issued to the extent that we determine that they are unrestrictedly reusable. The actual costs, at least 30% of the invoice amount or at least 100.00 euros, shall be deducted for the costs of testing, processing, reworking and repackaging. Any freight costs incurred for the return freight shall be borne by the customer. Any additional freight costs for the return freight shall be deducted additionally. Such a credit note shall not be paid out, but shall only be used for offsetting against future deliveries.
XI. Prohibition of assignment
1. Without our express written consent, rights or claims against us, in particular for defects in goods delivered by us or for breaches of duty committed by us, may not be transferred either in whole or in part to third parties or pledged to third parties.
XII. Safety data sheets and declarations of performance
1. If regulations apply to the delivery item, the customer declares his agreement with requesting the safety data sheet and/or the declaration of performance under info[at]pok-fire.com.
XIII. Place of performance, jurisdiction, applicable law, trade clauses
1. Place of performance and exclusive place of jurisdiction for all claims between us and merchants or legal entities under public law or special funds under public law is 10400 Nogent-sur-Seine (France), for payments on the bank account(s) specified in the invoice, unless mandatory statutory provisions conflict. However, we have the right to take legal action against a customer at his legal place of jurisdiction.
2. The legal relationship between us and the customer shall be governed exclusively by the law of the French Republic, as it applies between French merchants and could be effectively agreed in the respective delivery countries (see Section I of these Terms and Conditions). The application of the provisions on the international sale of goods (UN Convention on Contracts for the International Sale of Goods / CISG) and the international private law of the country concerned are expressly excluded.
3. Insofar as international trade clauses (incoterms) have been agreed, they shall apply in their latest version.
XIV. Final provisions
1. If any of the above provisions should be ineffective, partially ineffective or excluded by a special agreement, this shall not affect the effectiveness of the remaining provisions.
Status: 01 July 2019