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Standard Terms & Conditions of Sale
1. Scope of Application
1.1. These General Terms and Conditions shall apply exclusively to all contracts agreed between Milliken Fabrics S.A. or Milliken France S.A., as applicable, hereafter referred to as “Milliken”, and the buyer, hereafter referred to as the “Buyer”.
1.2. As a result of the Buyer placing an order or accepting an offer of Milliken, the parties explicitly agree that (1) these General Terms and Conditions shall apply to all contracts for the sale of Goods (as defined hereafter) to the Buyer and (2) all general terms and conditions of the Buyer that would be communicated to Milliken, before or after the parties entered into a contract, in any way whatsoever, whether incorporated or referred to in a purchase order or in any other document or provided separately, are explicitly excluded by the parties, even though Milliken does not expressly reject them each time.
2. Supply of Goods and specifications
2.1. No order shall become binding on Milliken unless and until accepted by Milliken in writing.
2.2. Milliken will take all reasonable steps up to the time of delivery or collection to ensure that goods ordered by the Buyer (hereafter referred to as the “Goods”) are supplied in accordance with the description set out overleaf and any specification agreed with the Buyer in writing.
2.3. The Buyer must satisfy itself as to the specification quality and fitness for its purpose of the Goods before taking delivery and the Buyer shall not in any way rely upon Milliken's skill or judgement.
2.4. The Buyer shall be responsible for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving Milliken any necessary information, including applicable specific legal requirements in the country of the Buyer or the country of destination, relating to the Goods within a sufficient time to enable Milliken to perform the contract in accordance with its terms.
3. Delivery of Goods
3.1. Delivery dates are approximate only and Milliken will use reasonable efforts to meet such dates, but time shall not be of the essence. Milliken shall inform the Buyer as soon as it is aware that it will not be able to meet the delivery schedule. In no event shall Milliken in case of delay in delivery of the Goods be liable for any business interruption losses or damages.
3.2. Milliken reserves the right to make deliveries in instalments. Where delivery is made in instalments, delay by Milliken in delivering one or more instalments shall not entitle the Buyer to refuse to accept any remaining instalments. The Buyer shall not refuse to accept delivery or any consignment or instalment on account of any shortage or defect in any other delivery.
3.3. All deliveries will be in accordance with the Incoterms specified on the order confirmation.
3.4. The risk of loss or damage to the Goods shall pass to the Buyer on delivery to the Buyer or, as appropriate in accordance with article 3.3. above, in accordance with the applicable Incoterm as specified on the order confirmation. If the Buyer or the Buyer's agent's wrongfully fails to take delivery of the Goods or any part thereof, risk shall pass at the time when Milliken tenders delivery.
3.5. Title in the Goods shall not pass to the Buyer until Milliken has received in full all amounts owed by the Buyer with respect to such Goods under the contract or any other contract between the parties. As long as the title in the Goods has not passed to the Buyer, it shall not be entitled to put the Goods under pledge or liens or to encumber them or dispose of them in any way.
3.6. For as long as payment is overdue for all or part of a certain shipment of Goods, the Buyer shall, if requested by Milliken, deliver up the shipment to Milliken. If the Buyer refuses to deliver up the shipment when so requested, (i) Milliken shall be entitled at any time to recover possession of the shipment from the Buyer, and (ii) Milliken or its duly authorized agent is hereby irrevocably authorized by the Buyer to enter into the premises of the Buyer during normal business hours to take possession of this shipment.
4. Price and Payment conditions
4.1. The price of the Goods shall be the quoted price, or where no price has been quoted or where the quoted price is no longer valid the price listed in Milliken's published price list current at the date of acceptance of the order.
4.2. Milliken reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to Milliken which is due to any change of delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give Milliken adequate information or instructions. Any additional cost incurred by Milliken on account of alterations made at the Buyer’s request to quantities, dates or rates of delivery or to the specification of Goods or to the date of installation shall be borne by the Buyer. Milliken shall also be able to revise its prices not exceeding an amount of 80% of the final price, on the basis of parameters representing actual costs including but not limited to labour, raw materials, fuel, transport and environmental issues, each parameter being only applicable to the part of the price corresponding to the cost that it represents.
4.3. The price of the Goods and any delivery charges are exclusive of all applicable taxes and other government charges, including, but not limited to all use or excise taxes, any customs duties or any applicable value added tax which the Buyer shall be additionally liable to pay to Milliken.
4.4. Without prejudice to imperative legal provisions, should any duty, tax, levy or any other payment whatsoever be imposed by the European Union or any member national government thereof relating to the Goods before delivery thereof, the Buyer shall bear the burden of such duty, tax or other payment and the costs arising therefrom.
4.5. All packages, shells and containers shall be charged for as stated in the Contract (where applicable). The Buyer will be credited with the charge for returnable packages, shells and containers if returned to Milliken prepaid and in good condition and within a maximum period of three weeks after receipt of delivery of the Goods concerned.
4.6. Except as otherwise agreed, any invoice issued by Milliken shall be due for payment upon the Buyer's receipt of such invoice.
In the event invoices are not paid on the due date, they bear an interest of 12% on an annual basis by law and without prior default letter addressed to the Buyer, as well as liquidated damages estimated at 10 % of the outstanding amounts with a minimum of 125 euros per invoice.
In the event of non-payment of the invoices, Milliken is entitled to immediately terminate the contract unilaterally, without prejudice to claim to the Buyer any damage which may result from this termination.
5. Warranty and defects
5.1. Upon delivery, Goods delivered will be in conformity with the measurements and quantities specified as well as with the product description given in the confirmation of an order or in the contract.
5.2. In order to discover any defects or incorrect quantity, the Buyer shall examine the Goods immediately upon delivery and shall, in the event of any visible defect or incorrect quantity, notify Milliken of the same in writing within three working days.
The Buyer shall notify Milliken in writing of any non-visible defects not later than 3 working days after the discovery thereof.
In the event of the Buyer failing to meet any of the aforesaid periods of limitation, the relevant contractual Goods shall be deemed approved with regard to quality and quantity and Milliken will not be liable anymore for any visible and non-visible defect to the Goods.
5.3. The warranty provided for in this article 5 shall not apply if defects have been caused, for instance, by faulty storage, processing, or excessive strain on the Goods delivered, etc. after delivery of the Goods.
5.4. With the sole exception of the express warranty contained in this article 5, Milliken makes no representations and gives no warranties and all representations, conditions and warranties implied by statute, common law or otherwise are hereby excluded to the fullest extent permitted by law. Nothing in these General Terms and Conditions of Sale shall exclude any representation, condition or warranty which cannot, as a matter of law, be excluded.
6. Liability
6.1. Milliken shall not be liable for indirect damages, including but not limited to, loss of business, revenue, goodwill, anticipated savings or other commercial or economic loss of any kind.
6.2. Milliken’s integral liability towards the Buyer will never exceed an amount equal to the actual purchase price paid by the Buyer to Milliken for the sale of Goods under the contract or the specific purchase order concerned during a period of 6 months preceding the date of the event that leads to the liability, with a maximum of 500.000,00 (fivehundredthousand) Euros.
6.3. Milliken shall be under no liability in respect of any defect in Goods arising from any drawing, design or specification supplied by the Buyer. The Buyer will hold harmless and indemnify Milliken against any claims of third parties in this respect.
6.4. Milliken shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, unsuitable storage handling or treatment prior to use, pile crushing, abnormal use or use under abnormal conditions, failure to use appropriate adhesive, failure to follow Milliken's instructions (whether oral or in writing), misuse, exposure to direct weather conditions, or alteration (whether by cutting, conversion or processing) or repair of the Goods in any way after delivery without Milliken's approval. The Buyer will hold harmless and indemnify Milliken against any claims of third parties in this respect.
6.5. Milliken shall not be liable for any failure to fulfil any of its obligations under any contract in so far as such failure is due to force majeure. For the purpose of these General Terms and Conditions of Sale, force majeure shall mean any cause preventing or delaying the performance by Milliken of its obligations towards the Buyer, arising from acts, events, omissions or other circumstances beyond its control, which include, but are not limited to, fires, floods, accidents, explosions, nuclear incidents, earthquakes, storms, tidal waves, hurricanes, epidemics, breakdowns of equipment or machinery, breakdowns of IT systems, sabotage, strikes or other labour disturbances, whether at Milliken’s or third parties, civil commotions, riots, invasions, war, acts or omissions of any governmental authority, port congestion, shortage of energy, raw materials, components, labour or facilities or by any other event or occurrence which would render Milliken’s performance impossible or uneconomical to Milliken.
7. User warnings
Any advertisements, consumer information or labelling (the “Literature”) supplied by Milliken relating to the Goods, has been prepared to comply with statutory regulations (if any) relating to the Goods and with a view to providing information for users as to the physical characteristics of the Goods and precautions to be taken with regard to their use. The Buyer undertakes to Milliken:
only to use in relation to the Goods Literature supplied or approved in writing by Milliken;
not to remove from the Goods prior to re-sale any Literature supplied with the Goods by Milliken;
not to supply the Goods on re-sale without Literature as supplied by Milliken;
not to make any statement, representation or claim or give any warranty to any person in respect of the Goods save as in Milliken's Literature or as specifically authorised by Milliken;
not to use or knowingly permit to be used the Goods outside the purpose described by Milliken.
8. Indemnity
The Buyer indemnifies Milliken in respect of all damage or injury to any person or loss of or damage to any property and against all actions, suits, claims, demands, costs, charges or expenses arising at common law or under the consumer protection legislation or otherwise under statute as a result of:
the Buyer failing to identify or notify Milliken of any defect in the Goods as required by these General Terms and Conditions of Sale;
any failure by the Buyer to comply with the provisions of article 7 of these General Terms and Conditions of Sale.
9. Confidentiality
All trade secrets, specifications, drawings, notes, instructions, engineering data and analyses, compositions of matter, financial data and other technical or business data which are supplied or disclosed by Milliken in connection with the sale of Goods (the “Confidential Information”) will be deemed confidential and proprietary to, and remain the sole property of Milliken. The Buyer shall not disclose the Confidential Information to third parties or use the Confidential Information for any purpose other than the purpose for which such information was disclosed by Milliken to the Buyer under the contract without the prior written authorization of Milliken. Upon request by Milliken, the Buyer will promptly return or destroy the original and all copies of the Confidential Information.
10. Intellectual Property
10.1. Milliken does not assign or license to the Buyer any rights on the know how, patents, copyrights or other intellectual property right of Milliken related to the Goods other than as strictly necessary to allow the Buyer to incorporate Goods purchased from Milliken in the Buyer’s products.
10.2. If the Goods are to be manufactured or any process is to be applied to the Goods by Milliken in accordance with a design or specification submitted by the Buyer, the Buyer indemnifies Milliken against all loss, damage, costs and expenses awarded against or incurred by Milliken in connection with or paid or agreed to be paid by Milliken in settlement of any claim for infringement of any patent, copyright, design, trademark, or other industrial or intellectual property rights of any other person which result from Milliken's use of the Buyer’s design or specification.
11. Termination
Milliken may terminate the contract immediately without liability and without having to request a court order (i) if the Buyer fails to perform any material obligation under the Contract, including, but not limited to the non-payment of invoices as provided for in article 4.6 of these General Terms and Conditions of Sale, or (ii) if the Buyer becomes insolvent or if a petition for bankruptcy, liquidation or winding-up ifs filed by or against the Buyer or if the Buyer is subject to any proceeding of a similar nature.
12. Final Provisions
12.1. Any dispute in any way arising out of or in connection with the interpretation or performance of these Terms and Conditions shall be settled by the courts of France, which shall have exclusive jurisdiction.
12.2. All contracts between the parties, including these General Terms and Conditions of Sale and the rights and obligations of the parties hereunder, shall be governed by and construed in all respects in accordance with French law without resort to its conflict of laws principles.
12.3. Any modification or amendment made to any contract between Milliken and the Buyer as well as any supplementary agreements in respect thereof shall be in writing, and signed by such representatives of the contracting parties as shall be authorised to sign. The same shall apply mutatis mutandis to any waiver of this requirement of written form.
12.4. These General Terms and Conditions of Sale are established without prejudice to the imperative legislative provisions. In the event of any of the provisions above being or becoming invalid wholly or in part, the validity of the remaining provisions shall remain unaffected thereby. Such invalid provision shall be replaced with a valid provision coming as close as possible to these General Terms and Conditions of Sale as well as to contractual arrangements in any factual, legal, and economic respect. The same shall apply mutatis mutandis in the event of any contractual loopholes.
Standard Terms & Conditions of Sale
Milliken Fabrics S.A., registration number RCS Peronne TGI 306 480 153, Rue du Nouveau Monde, 80240 Roisel, France
Valid from January 2007
Milliken France S.A., registration number 965 500 333 RCS Aubenas, Saint Julien en St. Alban 07000 Privas, France
Valid from January 2007 |
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