ARTICLE 1 - PURPOSE AND SCOPE

 

1.1 - Unless otherwise agreed in writing, any order placed with TOPIEX implies the Buyer's unreserved acceptance of and full and complete adherence to these terms and conditions of sale, which shall prevail over any other document of the Buyer and in particular over its general terms and conditions of purchase.

 

Unless otherwise agreed in writing, these general terms and conditions of sale apply to all sales concluded by TOPIEX, as well as to all services provided by TOPIEX.

 

The fact that TOPIEX does not take advantage at a given moment of one of the present general conditions of sale cannot be interpreted as being worth renunciation to take advantage of it later.

 

1.2 - All documents other than these general terms and conditions of sale, in particular catalogs, prospectuses, advertisements and notices, are for information purposes only and are non-contractual.

 

1.3 - These general terms and conditions of sale apply as long as TOPIEX has not informed the Buyer of its decision to replace them with new general terms and conditions of sale. They may be changed at any time by TOPIEX with one month's notice. In this case, TOPIEX will inform the Buyer by any appropriate means.

 

ARTICLE 2 - ORDERS

 

2.1 - An order is any order for products sold by TOPIEX and/or services. Orders are final, even when taken through TOPIEX representatives or employees, only when they have been confirmed in writing.

 

If the order is placed without using TOPIEX's order form, it must expressly refer to these general terms and conditions of sale. Otherwise, the order will not be taken into consideration by TOPIEX. TOPIEX's acknowledgement of receipt of the order will render the latter irrevocable.

 

2.2 - Once approved by TOPIEX, orders are irrevocable and cannot be cancelled by the Buyer.

 

Any request to modify the composition or volume of an order placed by a customer can only be taken into account by TOPIEX if the request is in writing and has reached TOPIEX no later than 2 days after TOPIEX has received the initial order.

 

If the customer changes the order, TOPIEX will be released from the deadlines initially agreed for its execution.

 

2.3 - Acceptance of an order by TOPIEX may be subject to obtaining the necessary administrative authorizations, to payment of a deposit at the time of order, to the provision of a contractual guarantee (bank guarantee, opening of a documentary credit, etc.) or cumulatively to several of these conditions.

 

ARTICLE 3 - RATES - PRICES

 

3.1 - The company TOPIEX has the right to modify its prices. These may be revised upwards after prior written notification to the Buyer.

 

Any price change will apply from the date indicated on the new price list.

 

 

3.2 - The supply of goods is made against payment by the Buyer of the price appearing in the price list in force on the day the order is placed, increased by the taxes in force, and reduced by any discounts to which the Buyer may be entitled and which are mentioned on the invoice.

 

Unless otherwise agreed in writing, the price is net, excluding transport, established in euros exclusive of tax on the basis of the rates communicated to the Buyer, and may not be changed once approved by the parties.

 

Any tax, duty or other charge payable in application of French regulations or those of an importing country or a transit country, shall be borne by the Buyer.

 

In the event that TOPIEX incurs costs not specified in the order, such costs shall be borne by the Buyer and the amount of such expenses shall be reimbursed to TOPIEX by the Buyer upon presentation of proof.

 

3.3 - Unless otherwise agreed in writing, invoices are payable within 30 days of the end of the month.

 

The price will be payable by teletransmission to TOPIEX's bank account and the Buyer will be deemed to have fulfilled his payment obligation when the sums have been received by TOPIEX's bank in immediately available funds. Payment is therefore deemed portable.

 

In the case of instalments, each instalment defined in the contract must be paid by the Buyer before delivery of the next instalment.

 

In the event of an international sale, if the parties have agreed to payment by documentary credit, Buyer shall, unless otherwise agreed in writing, arrange for a documentary credit to be issued in favour of TOPIEX by a reputable bank, in accordance with the Uniform Customs and Practice for Documentary Credits published by the ICC, and notified at least 30 days prior to the agreed delivery date or at least 30 days prior to the starting point of the agreed delivery period. Unless otherwise agreed in writing, the documentary credit shall be payable at sight at TOPIEX's bank counters and shall allow partial shipments and transshipments.

 

If the parties have agreed to payment by documentary collection, unless otherwise agreed in writing, the documents will be given against payment (D/P), and in all cases this remittance will be subject to the application of the Uniform Rules for Collections published by the ICC. TOPIEX reserves the right to combine this type of payment with a stand-by letter of credit guarantee to protect itself against any default by the Buyer.

 

In the event that the parties have decided that payment shall be guaranteed by a bank, the Buyer shall provide at least 30 days prior to the delivery date, or at least 30 days prior to the starting point of the agreed delivery period, a first demand bank guarantee complying with the Uniform Rules for Demand Guarantees published by the ICC or a stand-by letter of credit complying with such Uniform Rules or complying with the Uniform Customs and Practice for Documentary Credits published by the ICC, and in either case issued by a reputable bank.

 

3.4 - In the event of late payment, TOPIEX may suspend all current orders, without prejudice to any other course of action.

 

Any sum not paid by the due date shown on the invoice shall automatically give rise to the application of penalties equal to the rate applied by the European Central Bank to its most recent financing operation, plus 7 points, from the day following the date of payment.

 

  These penalties will be payable ipso jure, without the need for formal notice.

 

In the event of non-payment, 48 hours after unsuccessful formal notice, the sale will be automatically terminated at TOPIEX's discretion, and TOPIEX may apply to any competent court for the return of the products, without prejudice to any other damages. Termination will apply not only to the order in question, but also to all previous unpaid orders, whether delivered or in the process of being delivered, and whether or not payment is due.

Where payment is by instalments, non-payment of a single instalment will result in immediate payment of the entire debt, without formal notice.

In all the above cases, any sums due for other deliveries, or for any other reason, will become immediately payable if the seller does not opt to cancel the corresponding orders.

The Buyer shall reimburse all costs incurred by the contentious recovery of sums due.

 

ARTICLE 4 - RETENTION OF TITLE CLAUSE

Notwithstanding any legislative or regulatory provision to the contrary, it is agreed that the transfer of ownership of the goods is suspended until full payment of the price, in principal and in accessories.

Any clause to the contrary, particularly in general purchasing clauses, is deemed unwritten.

In the event of seizure or any intervention by a third party, the Buyer is obliged to notify TOPIEX immediately. TOPIEX reserves the right to take back the goods wherever and whenever they are found.

The Buyer undertakes to allow the identification and reclamation of the goods at any time, it being agreed that the goods in stock are deemed to correspond to the unpaid goods. In the event of resale of goods before full payment, the Buyer must inform TOPEX.

 

ARTICLE 5 - INSPECTION OF PRODUCTS BEFORE DISPATCH

 

If the parties have agreed that Buyer is entitled to inspect the products prior to shipment, or if the regulations of the country of destination of the goods require such inspection, TOPIEX will notify Buyer, within a reasonable time prior to such shipment, that the products are available for inspection at the agreed location.

 

The Buyer must then make every effort to ensure that the inspection is carried out within 8 days at the agreed location, so that the goods can be dispatched on the contractual date.

 

If the Buyer has not carried out the said checks within 8 days, he will be obliged to pay TOPIEX the price of the goods and any additional costs incurred, in particular storage costs, insurance, etc.

 

ARTICLE 6 - DELIVERY

 

6.1 - Delivery times are given for information purposes only.

 

TOPIEX will do its utmost to respect the delivery deadlines it indicates on acceptance of the order, according to the logistical deadlines of reference in the profession, and to fulfil orders, except in cases of force majeure, or in the event of circumstances beyond its control, such as strikes, frost, fire, storm, flood, epidemic, supply difficulties, without this list being limitative.

 

Late deliveries may not give rise to any penalty or indemnity, nor be grounds for cancellation or termination of the order.

 

In any event, on-time delivery can only occur if the Buyer is up to date with his obligations towards the Seller, whatever the cause.

 

6.2 - The transfer of risks from TOPIEX to the Buyer is carried out in accordance with the ICC Incoterm 2000 (terms and stipulations corresponding to the Incoterms published by the ICC), chosen by the parties.

 

In the absence of such a choice, Incoterm 2000 FCA (Free Carrier) applies and the transfer takes place as soon as the goods reach the transport terminal, TOPIEX not being responsible for the unloading of the vehicle.

 

6.3 - It is the Buyer's responsibility, in the event of problems with the goods delivered or shortages, to make all necessary reservations with the carrier.

 

Any reservations must be made to the carrier by registered letter with acknowledgement of receipt (a copy must be sent simultaneously to TOPIEX) within 3 days of receipt, unless there are mandatory provisions to the contrary. After these deadlines, the goods will be considered as accepted by the Buyer.

 

6.4 - Without prejudice to the measures to be taken with regard to the carrier within the above-mentioned time limits, complaints about visible defects or non-conformity of the goods delivered with the goods ordered or the dispatch note must be made in writing within 2 days of the arrival of the goods.

 

No action or claim for non-conformity may be made after this period of 2 days after delivery of the goods, even as a counterclaim in defence of an action for recovery of debts brought by TOPIEX.

 

In the absence of a timely written complaint, TOPIEX shall not be liable to the Buyer for any apparent defect or non-conformity of the goods delivered with the goods ordered.

 

It will be up to the Buyer to provide any justification as to the reality of the defects or anomalies noted. The Buyer must allow TOPIEX every facility to proceed with the observation of these defects and to remedy them. The Buyer shall refrain from intervening itself or having a third party intervene for this purpose.

 

 

In the event of minor and customary differences between the products delivered and those agreed, which are considered to be in conformity with the market concerned or with the business relations between the parties, the products will be considered to be in conformity.

 

6.5 - No goods may be returned by the Buyer without the express prior written consent of TOPIEX. Any goods returned without this agreement will be held at the Buyer's disposal and will not give rise to the issue of a credit note.

 

Return costs are always at the Buyer's expense. All returned goods must be in the condition in which they were delivered.

 

When the inspection confirms the existence of an apparent defect or a missing item, TOPIEX will have several options:

- replace non-conforming items and/or make up for missing items at its own expense,

- bring the products back into conformity at no cost to the Buyer,

- reimburse the Buyer for the price paid for the non-conforming and/or missing products, thus resolving the sale of the non-conforming and/or missing products.

 

In any event, the Buyer shall not be entitled to claim any compensation whatsoever.

Should the Buyer decide to keep the non-conforming products, he/she will be entitled to repayment of a sum equal to the difference between, on the one hand, the value of the products which should have been delivered in accordance with the order, and on the other hand, the value of the products actually delivered, this difference not exceeding 5% of the price of the products actually delivered.

 

6.6 - Unconditional acceptance of the products ordered by the customer covers any apparent defect and/or shortage.

 

Complaints made by the Buyer in accordance with the terms and conditions described in the present article do not suspend payment by the Buyer for the goods concerned.

 

6.7 - In the event of non-payment in full of an invoice that has fallen due and after formal notice has remained without effect within 48 hours, TOPIEX reserves the right to suspend all current and/or future deliveries.

 

ARTICLE 7 - WARRANTY

 

7.1 - Unless otherwise agreed in writing, products are guaranteed against defects in materials or workmanship for a period of 3 months from the date of delivery of the goods. Interventions under the warranty shall not have the effect of extending the warranty period.

 

Under this warranty, TOPIEX's only obligation will be, at its option, the free replacement or repair of the product or component recognized as defective by its services, unless this method of compensation proves impossible or disproportionate.

 

To invoke the warranty, the Buyer must inform TOPIEX within a maximum of 1 month by registered letter with acknowledgement of receipt from the date of discovery of the defect, that the equipment supplied does not work and/or has broken down. He will send the defective part at his own expense, packed in its original packaging. TOPIEX, after examination, will decide either to repair it or to exchange it.

 

7.2 - The warranty does not apply to apparent defects.

 

Also excluded are defects and deterioration caused by natural wear and tear, an external accident, incorrect installation, misuse, defective maintenance, or work carried out by personnel outside TOPIEX or not mandated by the latter, or by a modification of the product not planned or specified by TOPIEX.

 

ARTICLE 8 - INTELLECTUAL PROPERTY

 

All technical documents provided to the Buyer remain the exclusive property of TOPIEX, the sole owner of the intellectual property rights on these documents, and must be returned to the Buyer upon request.

 

The Buyer undertakes not to make any use of these documents which might infringe TOPIEX's intellectual property rights, and undertakes not to disclose them to any third party.

 

 

ARTICLE 9 - CONFIDENTIALITY

 

The parties undertake to keep strictly confidential all information relating to each of them, whatever it may be, and of which they may become aware in the course of their commercial relations, whether it relates in particular to the order placed between the parties, their commercial policy, their reciprocal activity, their strategy or their pricing.

 

They undertake to take all necessary measures with their staff and consultants to preserve this confidentiality.

 

ARTICLE 10 - FORCE MAJEURE

 

Force majeure or fortuitous events are events beyond the control of the parties, which they could not reasonably be expected to foresee, and which they could not reasonably avoid or overcome, insofar as their occurrence renders performance of the obligations totally impossible.

 

The following, in particular, are considered to be cases of force majeure or fortuitous events which relieve TOPIEX of its responsibility to deliver within the time limits initially planned: strikes by all or part of its staff or its usual carriers, fire, flood, war, roadblocks, strikes or disruption of EDF-GDF supplies, or disruption of supplies attributable to TOPIEX suppliers.

 

In such circumstances, TOPIEX will notify the customer in writing, in particular by fax or e-mail, within 24 hours of the date of occurrence of the events, the contract binding TOPIEX and the Buyer being then suspended as of right as from the date of occurrence of the event.

 

If the event lasts more than 30 days, from the date of its occurrence, the sales contract concluded by TOPIEX and the Buyer may be terminated by the most diligent party, by sending a registered letter with acknowledgement of receipt, without either party being entitled to claim damages. TOPIEX will then reimburse any sums already paid in advance and not corresponding to supplies already delivered at the date of occurrence of the force majeure.

 

This termination will take effect on the date of first presentation of the said registered letter with acknowledgement of receipt.

 

ARTICLE 11 - APPLICABLE LAW AND SETTLEMENT OF DISPUTES

 

11.1 - Any question relating to the present general terms and conditions of sale and to the sales governed by them, which is not dealt with by the present contractual stipulations, shall be governed by French law to the exclusion of any other law.

 

The provisions on contracts for the international sale of goods and in particular the provisions of the United Nations Convention of April 11, 1980 on contracts for the international sale of goods (known as the Vienna Convention), shall not apply to any sale concluded by TOPIEX with a foreign Buyer.

 

11.2 - In the event of problems arising from the interpretation, execution or termination of orders and/or the present terms and conditions of sale, the parties agree to bring their dispute before the Orleans Commercial Court, even in the event of multiple defendants or third-party claims.

 

TOPIEX may, however, take action before the Court which would be competent in application of the ordinary rules of jurisdiction, in particular in order to take protective or urgent measures.