These General Terms and Conditions of Sale (GTCS) apply automatically and without any restriction to all products, supplies, or services ("the products") offered for sale by Provost DISTRIBUTION ("Provost") and form the basis of commercial negotiations. They take precedence over any other document issued by the Customer (e.g. GPC, Charters, etc.) or by Provost (e.g. correspondence, etc.), shall apply to all orders as soon as they enter into force, including those in progress, and shall be deemed to have been accepted without reservation by the Customer upon placement of an order. Any derogation to these GTCS must be covered by an express agreement between the Parties. Any other document (e.g. samples, prospectuses, notices, quotes, photos, etc.) is therefore provided for information purposes only and does not constitute a contractual document that is binding upon Provost, which may therefore withdraw or modify them without this giving rise to any right to compensation for the Customer. These points are determining factors in Provost’s consent.
1. THE ORDER.
By agreeing to the GTCS, the Customer expressly acknowledges that it has been fully and completely informed and advised by Provost, which is therefore deemed irrefutably to have fully met its obligations, on the products in its line, in particular those being ordered. In its capacity as an informed professional, the Customer is deemed to have full knowledge of all legal standards and technical constraints relating to the pursuit of its business, and it shall inform Provost completely of any information likely to have a direct or indirect impact on its order or its needs. Failing this, Provost shall not be held liable in any way for this.
By order, we mean any order relating to the products appearing on Provost's price list and accepted by the latter. It is deemed irrevocably accepted by the Customer as soon as an order receipt is issued by Provost and may therefore no longer be cancelled or modified without Provost’s express agreement, which may only proceed if this does not give rise to any right to compensation in favour of the Customer. However, Provost reserves the right to correct any material error or omission in the contractual documents tying it to the Customer, without this giving rise to any right to compensation.
2. THE PRICE.
The rate in force may be revised at any time after informing Customers, the price change being automatically applicable on the date indicated on the new price list. The products are invoiced in euros, at the price indicated on the acknowledgement of receipt of the purchase order. They are calculated net and without discounts, and they correspond solely to the products covered by the order. They are stated not including taxes and customs duties, unpacked, ex-works, and without assembly. The prices stated on the order are based on the price on the price list or those indicated in the Provost catalogue, not including shipping costs or exceptional constraints inherent in the order’s execution.
Payment is made as follows: 30% of the order amount on order; 40% of the order amount on shipment of the product; the balance of the order amount on receipt of the product. For any order for an amount less than €100 excluding VAT, for any first order, or for any customer that has previously made a late payment, payment shall be made in cash, before delivery of the goods. If Provost grants an invoice payment period, it may not exceed 60 days net from the invoice issue date, or by contractual exception, 45 days from the end of month of the invoice’s issue date, according to Article L 441-10 of the Commercial Code arising from Ordinance N° 2019-539 (24/04/2019). Invoices are payable by bank transfer, in accordance with the bank account details attached to the purchase order and invoices or, if applicable, by bank cheque sent to Provost’s registered office, on the contractually agreed dates, which cannot be challenged unilaterally by the Customer on any grounds whatsoever. Payment shall be deemed to be made upon the effective collection of the price, the delivery of any security recognising an obligation to pay that does not constitute an effective payment (any bill of exchange to be accepted in advance). Any advance payment is made without discount.
If the entity placing the order is not the end customer, the Customer shall require the end customer to comply with the formalities of Law No. 75-1.334 on subcontracting, considered under the GSTC as an international policy law. The lack of presentation or approval results in the Customer being unable to enforce the order against Provost (e.g. for any default notices relative to any non-compliances with the specifications). The Customer nevertheless remains liable for the third party’s performance of its contractual obligations.
3. INCIDENTS, DELAYS IN PAYMENT, PENALTY CLAUSE.
The Customer shall refrain from any illegal, automatic debiting or credit, which is treated as an unpaid invoice or late payment. However, the Parties reserve the right to resort to legal or contractual offsetting of receivables. Any delay in payment shall automatically give rise to a fixed compensation for recovery costs, set at €40, from the day following the invoice due date, this compensation being added to the late-payment penalties due, without any reminder being necessary. These penalties accrue from the day following the payment due date shown on the invoice. The interest rate of the late-payment penalties applied shall be equal to the ECB rate for its most recent lending transaction, increased by 10 percentage points. Provost will be able to automatically declare the acceleration of the order, with all the sums due to Provost becoming payable immediately without prejudice to the application of the other clauses hereof, and any discounts that may have been granted being de facto cancelled and the defaulting Customer's debt recovery costs remaining payable. Provost also reserves the right to suspend or cancel any outstanding order by such a Customer, and to accept subsequent orders only in return for payment in advance. In the event of a breach by the Customer of one of its obligations and after a formal notice sent by registered letter that has not been acted upon for 15 working days from its sending, the Customer shall be liable under a penalty clause for a fixed compensation equal to one third of the total amount of the order, without prejudice to the application of the other clauses hereof.
Delivery shall in principle be made to the delivery address shown on the purchase order, failing that to the address expressly provided by the Customer before the delivery date, subject to a notice period of 5 days, or failing that, to the Customer’s address indicated in the header of the purchase order. Transport of the products is made at Provost's expense, and the associated risks will be transferred to the Customer upon receipt of the goods, and their unloading is performed at the Customer’s expense, which must ensure that it has the means (rental of machinery if necessary, etc.) to do so. The Client must guarantee an access route for trucks to the place where the goods are to be unloaded. If the Customer carries out the transport on its own, it shall also bear all financial consequences of a direct action by the carrier against Provost. In the final case, the risks are transferred to the Customer when the goods are loaded onto the transport. Delivery may be divided into several stages according to the progress of the installation work and in accordance with the instructions and schedules negotiated with the Customer, which in such a case will provide Provost with a proper storage area in the installation zone. In the event of a postponement of a delivery by the Customer or its project manager beyond the deadline for the provision of the equipment, the entire resulting additional cost shall be borne exclusively by the Customer according to an additional invoice. Furthermore, defects and damage to delivered products as a result of abnormal storage or preservation conditions at the Customer do not give rise to the warranty owed by Provost. In the event that the product is intended for a sub-purchaser, the Client shall transmit the relevant information to the latter and retain the traceability of the product until delivery to the sub-purchaser. In all cases, Provost shall be automatically released from all its contractual obligations, especially if an appropriate space is not provided for the order’s receipt.
The delivery time is given for information purposes only, the delivery date being deemed to be the closest to the next working day if it falls on a non-working day, whether a public holiday or not. No delay, even a significant one, may give rise to any right to compensation or entitle the Customer to terminate or cancel its order or delivery. This period runs from the order’s departure from the factory, subject to the condition precedent that there are no obstacles or reservations to the completion and delivery of the product covered by the contract.
If the assembly is carried out by Provost's employees, Provost shall endeavour, under an obligation of means, to comply with the announced intervention schedule. Any change by the Customer to the terms and/or schedule shall entitle Provost to the payment of penalties set at 10% of the total amount of the order. Receipt of the product is pronounced after the installation’s entry into service. The packaging used by Provost is neither delivered nor taken back. The Customer is solely responsible for managing and disposing of waste and packaging in accordance with current standards and it alone shall bear such costs.
5. WARRANTIES FOR APPARENT AND HIDDEN DEFECTS.
The Customer benefits from the legal warranty covering latent defects, as established in Article 1641 et seq. of the Civil Code. A design defect is not a latent defect, and the Customer acknowledges that he has been fully advised by Provost in this regard. The legal warranty therefore applies exclusively to the goods manufactured entirely by Provost and which have duly become the property of the Customer, and, in this capacity, Provost is only obliged to bear the cost of replacing or repairing the defective goods, to the exclusion of any other claim. By operation of law, the warranty does not extend to any case where the goods are used or operated in any way that is contrary, improper or non-compliant in relation to their intended purpose. This warranty is restricted to the first 6 months of use and the parts are deemed to be used by the Customer within 3 months of their availability date; the warranty ends following this period and if the Customer fails to notify Provost of the alleged defect within a period of 20 clear days of its discovery, the Customer is required, at any rate, to furnish proof of the use start and/or defect discovery date. The replacement of the defective goods by Provost will not prolong the duration of the warranty indicated above.
No claim shall suspend payment of the Order. On delivery of the order, it is the Customer's responsibility, at its own expense and under its sole responsibility, to check the conformity of products, services, packaging, logistics, etc. Apart from observations justifying complaints, this verification serves as confirmation of the absence of apparent defects and the conformity of the order. Any delivery that has not been the subject of written, significant and complete reservations on the delivery notice at the time of delivery and a copy of which shall be sent to Provost at the same time, shall be considered irrevocably accepted by the Customer, the acceptance without reservation covering any apparent defect or missing items. All reservations must be accompanied by documentary evidence, and no returns may be made without Provost’s prior, express agreement. In any event, the costs and risks of the return shall be borne exclusively by the Customer. No claim may be validly accepted in the event that the Customer fails to comply with theses formalities. The Customer is responsible for implementing the necessary safety measures, not least in view of the particular features of the stored goods under his charge, and for complying with the instructions for use for the purpose of gaining full satisfaction from the equipment of Provost.
In the event that the reservation is accepted by Provost, the Customer may only request the replacement of the non-compliant elements and/or the supplement to be provided to make up for the shortcomings at Provost’s expense, to the exclusion of any other request (labour costs, compensation, termination, etc.).
Provost’s liability is limited solely to direct material damage caused to the Customer as a result of faults attributable to Provost in the performance of the order. The Customer shall waive and have its insurers waive any recourse against Provost and its insurers. In all cases, these warranties are excluded for defects resulting from a special modification and/or assembly, whether abnormal or not, of its products, for defects resulting in full or in part from the normal wear and tear of the part, damage or accidents attributable to the Customer or a third party, changes in the process of using the products and supplies in relation with the Customer's specifications and/or Provost's specifications, in case of a usage, even temporary, that is abnormal, atypical, or noncompliant with the designated use of the product, best practices, Provost’s recommendations, maintenance, storage or shipping conditions, etc., false manoeuvres, conscious deterioration, modification, or repair of the equipment by anyone other than a technician authorised by Provost, in case of a loss of traceability of the product by the Customer,, non-payment by the Customer of any amount due to Provost, force majeure, sale of the equipment, transfer of the warranty to a third party, or the breaking of seals placed on certain components or control units.
The Parties agree that the penalties and compensation provided for in the event of the existence of derogating clauses shall be made as a lump-sum compensation, to the exclusion of any other penalty or compensation, and that they shall not exceed the total amount of the order.
Of the Customer. The Customer guarantees that, at the time of the order, the content of the data it sends (e.g. specifications, plans, etc.), does not infringe upon the intellectual or industrial property rights or know-how held by a third party, that it may therefore freely dispose of it and, in this respect, it indemnifies Provost against any action or conviction that may be brought against it in this context. It acknowledges that it is solely responsible for the implementation of the product under normal conditions of use, in accordance with the legislation in force at the time and in the place of use, as well as the best practices of its profession, which it declares is fully aware of. It shall therefore be directly liable for any harmful consequence linked to an abnormal, non-compliant or unforeseeable use of the product. The Customer also acknowledges that it has been fully informed and advised by Provost with regard to the information and data that it has provided, and that it is therefore solely responsible for the suitability of the product ordered for the specific, intended use. In particular, the Customer shall guarantee, under its sole responsibility, the floors and foundations on which the Provost equipment will be installed; it shall specifically check or have checked that they comply with the tolerances required by Provost and are capable of supporting the maximum work and loads, and to inform Provost, at the time of the order, of any regulation applying to its professional domain, especially stored products. Delivery of the equipment transfers the risks to the Customer, which shall, in its capacity as custodian and due to the retention of title clause, take out an insurance policy of its choice with an insurance company as soon as the contract is signed to cover the risk of loss, theft, damage or destruction of the goods.
Of Provost. Provost shall deliver products in accordance with the laws and regulations in force as well as with the various applicable technical standards, as applicable, and to advise the Customer as effectively as possible, subject to the information and data that the Customer shall provide. Under no circumstances may Provost's liability be sought due to an error in the plans or other elements sent by the Customer. As all shipping, customs duties, insurance, maintenance operations, etc. are deemed to be the Customer’s responsibility, Provost shall not under any circumstances be held liable for any reason whatsoever in the event of damage, breakage, deterioration, loss, etc. during shipping. If the shipment is made by Provost, it will be shipped freight collect at the lowest rates.
7. RETENTION OF TITLE.
Provost retains full ownership of the objects in the order, even if they have already been the subject of a transformation or resale, until full and effective payment of the price agreed with the Customer, both in principal and in accessories, any contrary clause being deemed as not having been written. By express agreement, Provost may enforce the rights it holds under this clause on all its products in the Customer’s possession, if they are presumed to be unpaid. Provost may therefore take them back or claim them as compensation for all its unpaid invoices without prejudice to its right to rescind ongoing sales. The Customer shall also immediately inform Provost of any third party act that may infringe upon Provost’s property rights. In the event of the resale of products before full payment, the sale between Provost and the Customer shall be automatically rescinded, and the goods sold shall be deemed to have been sold on behalf of Provost. Provost enforces its right of claim without prejudice to any other legal or contractual damages and interest or rights (e.g. termination or forced performance of the contract), and it does so by simple registered letter sent to the Customer, with the equipment returned at its own expense and risk. In the event that Provost opts for the termination of the sale, the Customer shall be required to pay by way of damages and interest a fixed sum equal to 30% of the total amount of the contract (principal and accessories), with all sums already received by Provost remaining in its possession in any event.
8. DEGRADATION OF THE CLIENT'S SITUATION.
If the deterioration in the Customer’s situation is observed by a financial or credit insurance institution, on the basis of a significant late payment, or if its situation differs from the data made available to Provost, the delivery will only take place in exchange for an advance payment on a pro forma invoice. Provost shall therefore have the option of requiring the Customer to provide its accounting documents at any time, and, in the event of refusal, it may decline the order(s) placed, without the Customer being able to claim an unjustified refusal to sell or claim any compensation. In addition, if the business or a significant portion of the customer's assets or equipment is subject to sale, assignment, pledge, etc., Provost reserves the right to declare the acceleration of the term, to suspend any shipment, to note the termination of all orders in progress, and to retain the advance payments received, products and supplies held, until full payment and setting of any compensation.
9. CONFIDENTIALITY – INTELLECTUAL PROPERTY – REFERENCE.
The Client acknowledges the strictly confidential nature, during and after the performance of the contract, of any information, data, technical formula, concept, etc. of which it may become aware in connection with the contract, and it is responsible, pursuant to this clause, for its employees, intermediaries and agents, as well as itself. It acknowledges that Provost remains the sole and exclusive holder of all intellectual and industrial property rights and know-how attached to the documents, data, etc. provided to the Customer, and it shall return them at first request. Furthermore, it accepts that Provost may restrict access to its facilities or those of its suppliers. The technical and technological resources and know-how used in designing Provost equipment, as well as studies, documents of all kinds, etc., remain the exclusive property of FINANCIERE TRIO, the parent company, whether or not they are protected as intellectual property. Consequently, all documents, prototypes, samples, etc. shall only be provided to the Customer free of charge or for valuable consideration in the context of a loan for use to allow it exclusively to draw up its order, whether or not in the context of a separate availability and/or confidentiality agreement forming an integral part of these GTCS, and may not be used by the Customer for other purposes without incurring liability.
The Customer authorises Provost to mention it in its references and to list on all media the products in the Order for advertising purposes, without any restriction, in particular in the context of an image right.
In the event of non-compliance by the Customer with any one of these clauses, Provost may automatically terminate the contract 15 working days after the sending of a simple formal notice of default that has remained without effect, such termination taking place without prejudice to the other provisions of these GTCS. Offers to pay and perform after the deadline do not eliminate its right to declare or maintain the termination incurred.
11. ENTIRE AGREEMENT – WAIVER - INTERPRETATION.
If any of the provisions of these GTCS are declared null and void or deemed unwritten, all other provisions shall remain applicable and shall remain in full force and effect. The fact that Provost does not invoke any of these clauses does not constitute a waiver of its right to invoke the same clause at a later date.
The interpretation and assessment of the validity of any contract is interpreted according to the following documents, in a descending order of the hierarchy of standards: GTCS, purchase order, order receipt, invoice, and delivery notice.
12. FORCE MAJEURE.
The Parties may not be held responsible if a case of force majeure, within the meaning of Article 1218 of the Civil Code, means that the fulfilment of their obligations, as described herein, does not take place or is delayed.
Any event beyond the control of the parties, which they cannot reasonably predict or reasonably avoid or overcome, shall be considered a case of force majeure, provided that its occurrence renders the performance of the obligations completely impossible, affects the execution of the order or the contractual balance (e.g. natural cataclysm, substantial change in the price of raw materials, variation in customs duties, armed conflicts, labour conflicts, modification of the regulations, default by a sub-contractor, machine breakdown, etc. The first Party to act shall inform the other without delay and by any means, and the Parties shall then negotiate in good faith any change made necessary to ensure the continuity of the contractual commitments. However, if this impossibility lasts longer than 3 months, the first Party to take action may terminate the contract in writing without incurring its liability and without this entitling the other party to recourse or compensation, the sums already received by Provost remaining irrevocably acquired by it.
13. PROTECTION OF PERSONAL DATA.
Provost undertakes to protect your personal data. All collected data are processed in the strictest confidence. In accordance with the EU Regulation of 25 May 2018, the customer has a right of access, rectification, erasure and portability in relation to his data which may be exercised by contacting the data controller at the postal address of the head office of Provost.
Any personal data collected from Customers are electronically processed by Provost. They are recorded in a Customer file and are essential for the purpose of processing their order. This information and any personal data are also kept for security purposes, in order to fulfil legal and regulatory obligations. They will be stored for 10 years in order to execute orders and apply any applicable warranties. Provost is the data controller. Access to personal data will be strictly limited to the data controller’s employees who are authorised to process them in the performance of their duties. Any collected information may be disclosed to third parties contractually bound to the company for the purpose of performing any subcontracted tasks, without the need for the Customer’s consent. In the provision of their services, third parties only have limited access to the data and are obliged to use them in compliance with the provisions of applicable personal data protection legislation. Beyond the cases listed above, Provost undertakes not to sell, hire, transfer or allow access to the data by third parties without the prior consent of the Customer, unless it is required to do so on legitimate grounds.
14. LANGUAGE – JURISDICTION.
These GTCS and any contractual relationship involving the products sold by Provost are governed exclusively by French law, this clause being a determining factor in Provost’s commitment. Prior to any legal action, the Parties shall seek an amicable settlement. Failing this, any dispute shall fall under the express jurisdiction of the LILLE METROPOLE Commercial Court of any kind whatsoever, and no document may replace or waive this jurisdiction clause.