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General terms and conditions of sale

Article 1. - Scope of the general terms and conditions of sale / Enforceability of the general terms and conditions of sale

These general terms and conditions of sale (GTCS) are automatically sent to each buyer to enable them to place an order.

As a consequence and unless otherwise agreed upon, when a buyer places an order they shall be deemed to have fully and unconditionally accepted these general terms and conditions of sale to the exclusion of any or all other documents such as flyers and catalogues which have been issued by KAD and which are for information purposes only.

No special term and condition whatsoever shall prevail over these general terms and conditions of sale unless formally accepted in writing by KAD.

In the absence of express acceptance, the buyer shall not thus be entitled to rely on any or all term and condition to the contrary against KAD, irrespective of the time when the said term and condition may have been brought to its knowledge.

The fact that KAD does not rely on any one of these general terms and conditions of sale at a given time shall not be construed as a waiver to rely on any one of the said terms and conditions at a later date.

Article 2. - Orders

For an order to be valid it must indicate in particular the quantity (and possibly the brand, type and references) of the products sold together with the agreed price, payment terms, place and date of delivery or collection.

Unless expressly requested by the buyer in writing, KAD shall not be required to verify the values, measurements and descriptions given by the purchaser when they place their order.

Orders shall only become firm, even when they are placed through KAD representatives or employees, when they are confirmed in writing (acknowledgement of receipt of the order). The said written document should indicate the subject-matter of the order and the terms and conditions of its performance.

Once the order has been finalised, KAD shall be entitled to provide the buyer with technical or practical modifications to improve the efficiency of the products which are the subject-matter of the order.

Unless otherwise agreed upon, when the buyer confirms the order they shall be deemed to have accepted the terms and conditions of sale of KAD, read and understood all the terms contained therein and waived the right to rely on their own terms and conditions of sale.

In the event of a shortage, KAD shall process orders according to their order of arrival and subject to availability.

The order is non-transferable unless the prior consent of KAD is given.

Article 3. - Modification of the order

Any or all modification or cancellation of an order which is requested by the buyer shall only be taken into account if it is received in writing prior to the shipment of the products.

If KAD does not accept the modification or cancellation, the advance payments made shall not be refunded.

Article 4. - Price

Unless otherwise specified, the products shall be supplied at the price which is applicable on the day the order is placed. The said price shall be expressed in euro and shall take into account the VAT which is applicable on the day the order is placed. Any or all change to the said VAT rate may be reflected in the price of the products or services.

Unless otherwise agreed upon, the prices indicated in the price quotation shall only be valid for a maximum period of one (1) month from the date specified on the said price quotation.

Unless otherwise agreed upon, the prices shall be deemed to be net, excluding transport costs and taxes, and based on the tariffs given to the buyer. Packaging shall be invoiced separately.

Any or all tax, duty, levy or other cost to be paid pursuant to French regulations or those of an importing company or transit country shall be borne by the buyer.

Article 5. - Delivery

5.1. Terms

The delivery shall be carried out in accordance with the order either by delivering the product directly to the buyer, or by sending a notice informing the buyer that the product is available, or by delivering the product to a forwarder or carrier in the KAD warehouses.

5.2. Delivery times

Deliveries are processed according to availability and in the order of arrival of the orders. KAD shall be entitled to make complete or partial deliveries.

However, if the performance of an order is conditional upon the fulfilment of one or more conditions after this date, such as the making of advance payments, the provision or approval by the buyer of plans, models, samples or prototypes, the opening of a documentary letter of credit etc., the delivery time shall begin to run from the date the condition or conditions are met.

The delivery times given shall be as accurate as possible but depend on the procurement and shipping possibilities of KAD.

Late deliveries shall not give rise to the payment of damages, the withholding of payment or the cancellation of orders in progress.

However, if the product has not been delivered three (3) months after the stated delivery date for any or all other reason than a case of force majeure, the sale may then be cancelled at the request of one or other of the parties; the buyer shall be entitled to claim the refund of their advance payment but shall not be entitled to claim any or all other compensation or damages.

The following shall be considered to be cases of force majeure releasing KAD from its obligation to deliver: war, riot, fire, strikes, accidents and the impossibility for KAD to receive its supplies.

KAD shall keep the buyer informed of the cases and events listed hereinabove in due course.

In all events, delivery of the products within the agreed times shall only occur if the buyer is up to date with their obligations with regard to KAD, irrespective of the cause.

5.3. Risks

Notwithstanding the retention of title clause, the products shall be delivered carriage paid or cash on delivery at the agreed place of delivery; in all cases, they shall be shipped at the recipient’s risks. The said recipient shall be responsible for making all the relevant declarations in the event of damage or missing items and for confirming their reservations by registered letter with acknowledgement of receipt to the carrier within three days from the date of receipt of the goods.

Article 6. - Receipt

The buyer shall be responsible for verifying the delivery when it is received and for formulating, where applicable, reservations to the carriers.

Without prejudice to the measures to be taken with regard to the carriers, claims concerning defects or the non-compliance of the product delivered with the product ordered or with the dispatch note must be made in writing within eight days from the date of receipt of the products.

The buyer shall be responsible for providing any or all proof regarding the veracity of the stated defects or anomalies. They shall be required to allow KAD every opportunity to ascertain such defects and to remedy them. They shall refrain from taking any action or having a third party take any action to remedy the defects or anomalies. If the products are sold packaged, the initial weights and measurements shall be deemed to be conclusive proof of the quantities delivered.

Article 7. - Returns

7.1. Terms and conditions

KAD and the buyer must reach a formal agreement on the return of any or all product. Any or all product which is returned without such an agreement shall be held at the buyer’s disposal and shall not result in a credit note being issued. The costs and risks of returning a product shall always be borne by the buyer.

Moreover, no return shall be accepted thirty (30) days after the date of delivery.

7.2. Consequences

In the event that KAD duly ascertains the defects or non-compliance of the products delivered, as provided for hereinabove, KAD may choose either to provide the buyer with a free replacement or refund the products, without the payment of any or all compensation or damages.

Article 8. - Warranty

8.1. Scope

The products are warranted against any or all material or manufacturing defect for a period of twelve (12) months from the date of delivery. Work carried out under the warranty shall not extend the length of the said warranty.

In respect of the said warranty, the only obligation incumbent upon KAD shall be either, at its discretion, to provide a free replacement or repair the product or element which is acknowledged as being defective by its services except if the said remedy proves to be impossible or disproportionate. To benefit from the warranty, any or all product must first of all be sent to KAD’s after-sales service which is in turn required to give its approval for any or all replacement. Any possible shipping costs (packaging, transport and insurance) shall be paid by the buyer. The buyer shall not be entitled to claim any compensation whatsoever for the loss of use of the product under the terms of the warranty. Furthermore, any or all additional costs and direct or consequential loss are hereby expressly excluded.

The warranty shall only cover products that have been used in accordance with the instructions for use and maintenance recommendations and with best industry practice.

8.2. Exclusions

The warranty shall not apply to visible defects.

The following shall also be excluded from the warranty: defects and deterioration which result from normal wear and tear, damage caused during improper transport or storage, modifications, substitutions of parts, fitting out, repairs etc. which have been carried out by personnel or in conditions that were not authorised by KAD beforehand or which are due to an external accident or even to a modification of the product which was not provided for or specified by KAD.

The warranty shall only apply if the product is used for the applications for which it is intended.

Article 9. - Invoicing

An invoice shall be prepared and remitted with each delivery.

Article 10. - Payment

10.1. Terms

Unless stipulated to the contrary and provided approval is obtained from our credit department, payments shall be made as follows:

- Advance payment of thirty (30) % when the order is placed; Balance is due thirty (30) days after the date of the invoice

In the event of differed payments or a payment plan agreement, a payment pursuant to this article shall be deemed to mean a payment at the agreed due date and not the mere forwarding of a bill of exchange or cheque which implies the obligation to pay.

10.2. Late or default on payment

In the event of late payment, KAD shall be entitled to suspend any or all orders in progress without prejudicing any or all other course of action.

Any or all amount that is not paid on the due date as stipulated on the invoice shall result, ipso jure, in the application of penalties at the rate of 20% per annum from the day following the date of payment indicated on the said invoice.

The said penalties shall be payable to KAD when requested to do so by the latter. Unless stipulated otherwise, the amount of the said late payment interest shall be set off, ipso jure, against any or all discounts, reductions or rebates owed by KAD.

In the event of a default on payment, the sale shall be cancelled ipso jure at KAD’s discretion if no response has been received to the formal notice sent after forty-eight hours. Moreover, KAD shall be entitled to request for the return of the products by means of an interim injunction without prejudicing any or all other damages that it might seek. The cancellation shall not only concern the order in question but also any or all prior unpaid orders whether they have been delivered or are in the process of being delivered and whether their payment is due or not. In the event of payment by means of a bill of exchange, failure to return the bill shall be construed as a non-acceptance which is equivalent to a default on payment. Likewise, if the payment is made in instalments, failure to pay one single instalment shall result in all the debt becoming immediately due and payable, without prior formal notice.

In all the foregoing cases, the amounts which might be owed for other deliveries or for any or all other reason shall become immediately due and payable if KAD does not opt for the cancellation of the corresponding orders.

The buyer shall be required to refund any or all costs incurred as a result of proceedings to recover the sums owed, including public officers’ fees.

The payments cannot, under any circumstances, be suspended or set off in any manner whatsoever without the prior, written consent of KAD. Any or all partial payment shall first of all be deducted from the non-preferential part of the debt, and then from the amounts which have been overdue for the longest period of time.

KAD does not intend to grant a discount for any immediate, full payment of an invoice or for a payment which occurs before the date stipulated in the general terms and conditions of sale.

10.3. Demand for financial guarantees or payment

KAD hereby reserves the right to set a limit on each buyer’s credit facility at any time, depending on the risks involved and to demand certain time limits for payment or certain financial guarantees.

This shall be the case in particular if a modification or a transfer, lease, pledge or contribution of its business has an unfavourable impact on the buyer’s creditworthiness.

Article 11. - Risks

The buyer shall assume all risks from the moment the products are dispatched from the KAD warehouses even if the sale has been agreed carriage paid.

As a consequence, the goods shall be sent at the buyer’s own risks. In the event of damage, loss or missing products, the buyer shall be required to notify the carrier and take any or all action against the carriers who are responsible for the said situation.

Article 12. – Retention of title

The products/objects are sold with a clause that expressly subordinates the transfer of their title to the full payment of the principal price and additional costs.

It is hereby agreed however that the mere forwarding of a bill creating an obligation to pay, draft or other document shall not be construed as a payment pursuant to this clause. The debt which is owed by the buyer to KAD shall remain due with all the guarantees related thereto, including the retention of title, until the said bill of exchange has indeed been paid.

The aforementioned provisions shall not prevent the transfer to the buyer when the goods are delivered of the risks of loss or deterioration of the products that are subject to the retention of title and the risks of damage that they might cause.

The buyer shall be required to take out an insurance policy covering the risks that might occur from the date the goods are delivered.

Until such time as payment is made in full, the buyer shall be required to store the goods delivered pursuant to this agreement separately from other goods of the same kind from other suppliers. Should the buyer fail to separate the goods accordingly, KAD shall be entitled to demand their refund or take those still in stock back.

In the event of a garnishment or any or all other seizure by a third party of the goods, the buyer shall be required to inform the seller without delay thereof in order to enable the latter to oppose the procedure and protect its rights.

Furthermore, the buyer shall refrain from pledging or assigning the title on the goods as security.

Article 13. - Packaging

The packaging which bears the name KAD shall only be used for its products and cannot, under any circumstances, be used for other products than its own. Any or all breach of this rule shall render the party responsible liable to criminal prosecution and the payment of damages.

Article 14. – Intellectual property rights

Unless stipulated to the contrary, the rights and actions relating to the plans, software, design and manufacturing processes are and shall remain the exclusive property of KAD.

However, due to the complexity of product manufacturing techniques and industrial property rights relating thereto, no warranty can be given that the products are not subject to third-party industrial property rights.

In the event that a third party brings an action for infringement of their industrial property rights concerning the products that have been delivered to the buyer and in the event that a final, binding judgement is issued against the buyer upholding the infringement, KAD hereby undertakes, at its expense, either (i) to obtain a licence from the aforementioned third party to protect the buyer, (ii) to modify the counterfeit products to avoid an infringement, (iii) to replace the counterfeit product with an equivalent product or (iv) if the previous solutions are not possible for financial and/or technical reasons, to accept the return of the products delivered and to refund their purchase price.

The aforementioned commitment shall only apply if KAD has received immediate notification in writing from the buyer informing it that an action for infringement or any or all proceedings have been brought or may be brought against the buyer and if KAD has received all powers to defend the case alone and to deal with or put an end to any or all legal action.

KAD shall not, under any circumstances, be held liable, and the buyer shall hold KAD harmless in this respect, for any or all claims, liabilities, expenses, costs, damages resulting from an allegation of infringement of patents, trademarks, copyright or any or all other intellectual property rights, for any or all expenses incurred by the buyer for their defence and for any or all legal actions brought by the buyer without obtaining the prior, written authorisation of KAD. Furthermore, KAD shall not, under any circumstances, be held liable for any legal action whatsoever resulting from the use or combination of products with any or all equipment, process, programming application, appliance or material which has not been supplied by KAD or for any legal action whatsoever resulting from the compliance by KAD with the buyer’s specifications, plans or instructions.

The aforementioned provisions constitute all KAD’s commitments and liability in the event of legal action and/or claims based on or related to an alleged infringement of a patent or any or all other industrial property right, and are subject to the restrictions that are laid down in article 15 of these general terms and conditions of sale.

Article 15. - Liability

KAD shall not, under any circumstances, be held liable to the buyer for consequential losses and/or financial damage, such as in particular, loss of profits, loss of orders, loss of use, loss of interest even if KAD is aware of the possibility of such loss or damage occurring. KAD shall only be liable to the purchaser for the sole loss resulting directly from the performance and/or non-performance of its contractual obligations. It is however hereby agreed by the parties that the total, cumulative liability of KAD shall not, under any circumstances, exceed five (5) % of the price paid by the buyer under the terms of the relevant agreement.

Article 16. – Jurisdiction - Disputes

In the event of a dispute relating to the interpretation or performance of their agreements and before bringing any legal action, the parties shall first of all seek an amicable settlement and shall provide each other, in this respect, with all the information necessary.

The Commercial Court of Saint-Quentin (Aisne) shall have exclusive jurisdiction to hear any or all disputes.

This clause shall apply even in the case of emergency or interlocutory proceedings, multiple defendants or the introduction of third parties, irrespective of the method and terms of payment and shall not be precluded by jurisdiction clauses that may exist on buyers’ documents.