1. DEFINITIONS

IN THESE CONDITIONS, THE FOLLOWING DEFINITIONS APPLY:
BUSINESS DAY: A DAY (OTHER THAN A SATURDAY, SUNDAY OR PUBLIC HOLIDAY) WHEN BANKS IN FRANCE ARE OPEN FOR BUSINESS.
CONDITIONS: THE TERMS AND CONDITIONS SET OUT IN THIS DOCUMENT, AS AMENDED FROM TIME TO TIME.
CONTRACT: THE CONTRACT BETWEEN OVEROSE AND THE CUSTOMER FOR THE SALE AND PURCHASE OF THE GOODS.
CUSTOMER: THE PERSON OR FIRM WHO PURCHASES THE GOODS FROM OVEROSE.
DELIVERY LOCATION: HAS THE MEANING GIVEN IN CONDITION 4.2.
FORCE MAJEURE EVENT: HAS THE MEANING GIVEN IN CONDITION 11.
GOODS: THE GOODS (OR ANY PART OF THEM) SET OUT IN THE ORDER.
ORDER: THE CUSTOMER’S ORDER FOR THE GOODS.
VAT: VALUE ADDED TAX AND ANY SIMILAR REPLACEMENT OR ADDITIONAL TAX.
1.2.1 A PERSON INCLUDES A NATURAL PERSON, CORPORATE OR UNINCORPORATED BODY (WHETHER OR NOT HAVING SEPARATE LEGAL PERSONALITY).
1.2.2 A REFERENCE TO A PARTY INCLUDES ITS PERSONAL REPRESENTATIVES, SUCCESSORS OR PERMITTED ASSIGNS.
1.2.3 A REFERENCE TO A STATUTE OR STATUTORY PROVISION IS A REFERENCE TO SUCH STATUTE OR PROVISION AS AMENDED OR RE-ENACTED. A REFERENCE TO A STATUTE OR STATUTORY PROVISION INCLUDES ANY SUBORDINATE LEGISLATION MADE UNDER THAT STATUTE OR STATUTORY PROVISION, AS AMENDED OR RE-ENACTED.
1.2.4 ANY PHRASE INTRODUCED BY THE TERMS INCLUDING, INCLUDE, IN PARTICULAR OR ANY SIMILAR EXPRESSION SHALL BE CONSTRUED AS ILLUSTRATIVE AND SHALL NOT LIMIT THE SENSE OF THE WORDS PRECEDING THOSE TERMS.
1.2.5 A REFERENCE TO WRITING OR WRITTEN INCLUDES FAXES AND E-MAILS.
OVEROSE: OVEROSE FRANCE REGISTERED IN FRANCE WITH COMPANY NUMBER 03530345, WHOSE REGISTERED OFFICE IS AT 4 RUE MANUEL, 75009 PARIS, FRANCE
2. BASIS OF CONTRACT
2.1 THESE CONDITIONS APPLY TO THE CONTRACT TO THE EXCLUSION OF ANY OTHER TERMS THAT THE CUSTOMER SEEKS TO IMPOSE OR INCORPORATE, OR WHICH ARE IMPLIED BY TRADE, CUSTOM, PRACTICE OR COURSE OF DEALING.
2.2 THE ORDER CONSTITUTES AN OFFER BY THE CUSTOMER TO PURCHASE THE GOODS IN ACCORDANCE WITH THESE CONDITIONS. THE CUSTOMER IS RESPONSIBLE FOR ENSURING THAT THE TERMS OF THE ORDER ARE COMPLETE AND ACCURATE.
2.3 THE ORDER SHALL ONLY BE DEEMED TO BE ACCEPTED WHEN OVEROSE ACCEPTS THE ORDER AT WHICH POINT THE CONTRACT SHALL COME INTO EXISTENCE. ALL ORDERS ARE ACCEPTED SUBJECT TO AVAILABILITY. FOR THE AVOIDANCE OF DOUBT, ANY QUOTATION FOR GOODS THAT IS GIVEN BY OVEROSE SHALL NOT CONSTITUTE AN OFFER.
2.4 EACH ORDER THAT IS ACCEPTED BY OVEROSE SHALL FORM THE BASIS OF A SEPARATE CONTRACT. IF THE CUSTOMER SUBMITS MULTIPLE ORDERS AND THESE ARE ACCEPTED BY OVEROSE, THE CUSTOMER WILL ENTER INTO A SEPARATE CONTRACT WITH OVEROSE IN RESPECT OF EACH ORDER THAT IS ACCEPTED.
2.5 ORDERS SHALL ONLY BE ACCEPTED BY OVEROSE IN SUCH QUANTITIES STATED IN OVEROSE’S PRICE LIST AND SALES LITERATURE.
2.6 THE CONTRACT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES. THE CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY STATEMENT, PROMISE OR REPRESENTATION MADE OR GIVEN BY (OR ON BEHALF OF) OVEROSE WHICH IS NOT SET OUT IN THE CONTRACT.
2.7 ANY SAMPLES, DRAWINGS, DESCRIPTIVE MATTER, OR ADVERTISING MATERIALS PRODUCED BY OVEROSE AND ANY DESCRIPTIONS OR ILLUSTRATIONS CONTAINED IN OVEROSE’S LITERATURE OR ON ITS WEBSITE ARE PRODUCED FOR THE SOLE PURPOSE OF GIVING AN APPROXIMATE IDEA OF THE GOODS DESCRIBED IN THEM. THEY SHALL NOT FORM PART OF THE CONTRACT OR HAVE ANY CONTRACTUAL FORCE.
2.8 IF OVEROSE ACCEPTS AN ORDER FROM THE CUSTOMER IN RESPECT OF GOODS THAT FORM PART OF A OVEROSE SPONSORED PROMOTION, THE TERMS OF THE OVEROSE SPONSORED PROMOTION (AS AMENDED FROM TIME TO TIME) SHALL FORM PART OF THE CONTRACT.
3. GOODS

3.1 OVEROSE RESERVES THE RIGHT TO MODIFY THE GOODS AT ANY TIME WITHOUT NOTICE.

3.2 ALL PRICES PUBLISHED BY OVEROSE FOR THE SALE OF GOODS IN THE EU TO CUSTOMERS ARE STRICTLY NET.

4. DELIVERY

4.1 OVEROSE SHALL ENSURE THAT EACH DELIVERY OF THE GOODS IS ACCOMPANIED BY A DELIVERY NOTE WHICH SHOWS THE DATE OF THE ORDER, ALL RELEVANT CUSTOMER AND OVEROSE REFERENCE NUMBERS, THE TYPE AND QUANTITY OF THE GOODS (INCLUDING THE CODE NUMBER OF THE GOODS, WHERE APPLICABLE), SPECIAL STORAGE INSTRUCTIONS (IF ANY) AND, IF THE ORDER IS BEING DELIVERED BY INSTALMENTS, THE OUTSTANDING BALANCE OF GOODS REMAINING TO BE DELIVERED.

4.2 OVEROSE SHALL DELIVER THE GOODS TO THE LOCATION SET OUT IN THE ORDER OR SUCH OTHER LOCATION AS THE PARTIES MAY AGREE (DELIVERY LOCATION).

4.3 DELIVERY OF THE GOODS SHALL BE COMPLETED WHEN THE GOODS ARRIVE AT THE DELIVERY LOCATION.

4.4 ANY DATES QUOTED FOR DELIVERY ARE APPROXIMATE ONLY, AND THE TIME OF DELIVERY IS NOT OF THE ESSENCE. OVEROSE SHALL NOT BE LIABLE FOR ANY DELAY IN DELIVERY OF THE GOODS THAT IS CAUSED BY A FORCE MAJEURE EVENT OR THE CUSTOMER’S FAILURE TO PROVIDE OVEROSE WITH ADEQUATE DELIVERY INSTRUCTIONS OR ANY OTHER INSTRUCTIONS THAT ARE RELEVANT TO THE SUPPLY OF THE GOODS.

4.5 IF THE CUSTOMER RECEIVES AN INVOICE FOR GOODS WHICH OVEROSE FAILS TO DELIVER, THE CUSTOMER SHALL NOTIFY OVEROSE WITHIN TEN (10) BUSINESS DAYS FOLLOWING THE DATE OF THE INVOICE.

4.6 OVEROSE SHALL HAVE NO LIABILITY FOR ANY FAILURE TO DELIVER THE GOODS TO THE EXTENT THAT SUCH FAILURE IS CAUSED BY A FORCE MAJEURE EVENT, OVEROSE’S DECISION TO CANCEL AN ORDER OR THE CUSTOMER’S FAILURE TO PROVIDE OVEROSE WITH ADEQUATE DELIVERY INSTRUCTIONS OR ANY OTHER INSTRUCTIONS THAT ARE RELEVANT TO THE SUPPLY OF THE GOODS.

4.7 IF THE CUSTOMER FAILS TO ACCEPT DELIVERY OF THE GOODS WITHIN THREE (3) BUSINESS DAYS OF OVEROSE NOTIFYING THE CUSTOMER THAT THE GOODS ARE READY, THEN, EXCEPT WHERE SUCH FAILURE OR DELAY IS CAUSED BY A FORCE MAJEURE EVENT OR OVEROSE’S FAILURE TO COMPLY WITH ITS OBLIGATIONS UNDER THE CONTRACT:

4.7.1 DELIVERY OF THE GOODS SHALL BE DEEMED TO HAVE BEEN COMPLETED AT 9.00 AM ON THE THIRD BUSINESS DAY AFTER THE DAY ON WHICH OVEROSE NOTIFIED THE CUSTOMER THAT THE GOODS WERE READY; AND

4.7.2 OVEROSE SHALL STORE THE GOODS UNTIL DELIVERY TAKES PLACE, AND MAY CHARGE THE CUSTOMER FOR ALL RELATED COSTS AND EXPENSES (INCLUDING INSURANCE).

4.8 IF, TEN (10) BUSINESS DAYS AFTER THE DAY ON WHICH OVEROSE NOTIFIED THE CUSTOMER THAT THE GOODS WERE READY FOR DELIVERY, THE CUSTOMER HAS NOT ACCEPTED DELIVERY OF THEM, OVEROSE MAY RESELL OR OTHERWISE DISPOSE OF PART OR ALL OF THE GOODS AND, AFTER DEDUCTING REASONABLE STORAGE AND SELLING COSTS, ACCOUNT TO THE CUSTOMER FOR ANY EXCESS OVER THE PRICE OF THE GOODS OR CHARGE THE CUSTOMER FOR ANY SHORTFALL BELOW THE PRICE OF THE GOODS.

4.9 THE CUSTOMER SHALL NOT BE ENTITLED TO REJECT THE GOODS IF OVEROSE DELIVERS UP TO AND INCLUDING 5% MORE OR LESS THAN THE QUANTITY OF GOODS ORDERED, BUT A PRO RATA ADJUSTMENT SHALL BE MADE TO THE ORDER INVOICE ON RECEIPT OF NOTICE FROM THE CUSTOMER THAT THE WRONG QUANTITY OF GOODS WAS DELIVERED. THE CUSTOMER SHALL NOTIFY OVEROSE AND THE RELEVANT CARRIER IN WRITING WITHIN TEN (10) BUSINESS DAYS FOLLOWING THE DATE OF DELIVERY OF THE GOODS THAT THE WRONG QUANTITY OF GOODS HAS BEEN DELIVERED. FAILURE TO DO SO WILL RELEASE OVEROSE FROM LIABILITY IN RESPECT OF A CLAIM MADE BY THE CUSTOMER RELATING TO THE WRONG QUANTITY OF GOODS BEING DELIVERED.

4.10 OVEROSE MAY DELIVER THE GOODS BY INSTALMENTS, WHICH SHALL BE INVOICED AND PAID FOR SEPARATELY. EACH INSTALLMENT SHALL CONSTITUTE A SEPARATE CONTRACT. ANY DELAY IN DELIVERY OR DEFECT IN AN INSTALMENT SHALL NOT ENTITLE THE CUSTOMER TO CANCEL ANY OTHER INSTALMENT.

4.11 THE CUSTOMER SHALL BE RESPONSIBLE FOR OBTAINING, AT ITS OWN COST, SUCH LICENCES AND OTHER CONSENTS IN RELATION TO THE GOODS AS ARE REQUIRED FROM TIME TO TIME AND, IF REQUIRED BY OVEROSE, THE CUSTOMER SHALL MAKE THOSE LICENCES AND CONSENTS AVAILABLE TO OVEROSE PRIOR TO THE DATE OF DESPATCH OF THE RELEVANT SHIPMENT.

4.12 GOODS CORRECTLY DELIVERED WILL NOT BE ACCEPTED BACK OR EXCHANGED BY OVEROSE IN FULL OR IN PART UNLESS OVEROSE HAS AGREED IN WRITING TO DO SO, WHICH SHALL ONLY BE IN EXCEPTIONAL CIRCUMSTANCES.

 

5. QUALITY

5.1 OVEROSE WARRANTS THAT ON DELIVERY, THE GOODS SHALL:

5.1.1 BE FREE FROM MATERIAL DEFECTS IN DESIGN, MATERIAL AND WORKMANSHIP;

5.1.2 BE OF SATISFACTORY QUALITY; AND

5.1.3 BE FIT FOR ANY PURPOSE HELD OUT BY OVEROSE.

5.2 SUBJECT TO CONDITION 5.3, IF:

5.2.1 WITHIN TEN (10) BUSINESS DAYS AFTER DELIVERY, THE CUSTOMER GIVES PROMPT WRITTEN NOTICE TO OVEROSE FOLLOWING ITS DISCOVERY THAT SOME OR ALL OF THE GOODS DO NOT COMPLY WITH THE WARRANTY SET OUT IN CONDITION 5.1; AND

5.2.2 OVEROSE IS GIVEN A REASONABLE OPPORTUNITY OF EXAMINING SUCH GOODS; AND

5.2.3 THE CUSTOMER (IF ASKED TO DO SO BY OVEROSE) RETURNS SUCH GOODS TO OVEROSE’S PLACE OF BUSINESS AT OVEROSE’S COST, OVEROSE SHALL, AT ITS OPTION, REPLACE THE DEFECTIVE GOODS, OR REFUND THE PRICE OF THE DEFECTIVE GOODS IN FULL.

5.3 OVEROSE SHALL NOT BE LIABLE FOR ANY FAILURE OF THE GOODS TO COMPLY WITH THE WARRANTY SET OUT IN CONDITION 5.1 IN ANY OF THE FOLLOWING EVENTS:

5.3.1 THE CUSTOMER MAKES ANY FURTHER USE OF SUCH GOODS AFTER GIVING NOTICE TO OVEROSE IN ACCORDANCE WITH CONDITION 5.2;

5.3.2 THE DEFECT ARISES BECAUSE THE CUSTOMER FAILED TO FOLLOW OVEROSE’S ORAL OR WRITTEN INSTRUCTIONS AS TO THE STORAGE, USE OR TREATMENT OF THE GOODS OR (IF THERE ARE NONE) GOOD TRADE PRACTICE REGARDING THE SAME;

5.3.3 THE CUSTOMER ALTERS SUCH GOODS WITHOUT THE WRITTEN CONSENT OF OVEROSE;

5.3.4 THE DEFECT ARISES AS A RESULT OF WILFUL DAMAGE, NEGLIGENCE, OR ABNORMAL STORAGE OR WORKING CONDITIONS; OR

5.3.5 THE GOODS DIFFER FROM THEIR DESCRIPTION OR SPECIFICATION AS A RESULT OF CHANGES MADE TO ENSURE THEY COMPLY WITH APPLICABLE STATUTORY OR REGULATORY REQUIREMENTS.

5.4 EXCEPT AS PROVIDED IN THIS CONDITION 5, OVEROSE SHALL HAVE NO LIABILITY TO THE CUSTOMER

IN RESPECT OF ANY FAILURE OF THE GOODS TO COMPLY WITH THE WARRANTY SET OUT IN CONDITION 5.1.

5.5 EXCEPT AS SET OUT IN THESE CONDITIONS, ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED FROM THE CONTRACT.

5.6 THESE CONDITIONS SHALL APPLY TO ANY REPLACEMENT GOODS SUPPLIED BY OVEROSE.

 

6. TITLE AND RISK

6.1 THE RISK IN THE GOODS SHALL PASS TO THE CUSTOMER ON COMPLETION OF DELIVERY.

6.2 TITLE TO THE GOODS SHALL NOT PASS TO THE CUSTOMER UNTIL OVEROSE HAS RECEIVED PAYMENT IN FULL (IN CASH OR CLEARED FUNDS) FOR:

6.2.1 THE GOODS; AND

6.2.2 ANY OTHER GOODS OR SERVICES THAT OVEROSE HAS SUPPLIED TO THE CUSTOMER IN RESPECT OF WHICH PAYMENT HAS BECOME DUE.

6.3 UNTIL TITLE TO THE GOODS HAS PASSED TO THE CUSTOMER, THE CUSTOMER SHALL:

6.3.1 HOLD THE GOODS ON A FIDUCIARY BASIS AS OVEROSE’S BAILEE;

6.3.2 STORE THE GOODS SEPARATELY FROM ALL OTHER GOODS HELD BY THE CUSTOMER SO THAT THEY REMAIN READILY IDENTIFIABLE AS OVEROSE’S PROPERTY;

6.3.3 NOT REMOVE, DEFACE OR OBSCURE ANY IDENTIFYING MARK OR PACKAGING ON OR RELATING TO THE GOODS;

6.3.4 MAINTAIN THE GOODS IN SATISFACTORY CONDITION AND KEEP THEM INSURED AGAINST ALL RISKS FOR THEIR FULL PRICE FROM THE DATE OF DELIVERY;

6.3.5 NOTIFY OVEROSE IMMEDIATELY IF THE CUSTOMER BECOMES SUBJECT TO ANY OF THE EVENTS LISTED IN CONDITION 9.3; AND

6.3.6 GIVE OVEROSE SUCH INFORMATION RELATING TO THE GOODS AS OVEROSE MAY REQUIRE FROM TIME TO TIME, BUT THE CUSTOMER MAY RESELL OR USE THE GOODS IN THE ORDINARY COURSE OF ITS BUSINESS.

6.4 WHERE THE CUSTOMER USES OVEROSE FURNITURE IN ORDER TO ADVERTISE, PROMOTE AND SELL THE GOODS, TITLE TO THE FURNITURE SHALL NOT PASS TO THE CUSTOMER UNTIL OVEROSE HAS RECEIVED PAYMENT FOR THE FURNITURE IN FULL (IN CASH OR CLEARED FUNDS). UNLESS AND UNTIL TITLE TO THE FURNITURE HAS PASSED TO THE CUSTOMER, THE CUSTOMER SHALL:

6.4.1 USE THE FURNITURE ONLY FOR THE DISPLAY OF THE GOODS, OR OTHER GOODS SUPPLIED BY OVEROSE;

6.4.2 HOLD THE FURNITURE ON A FIDUCIARY BASIS AS OVEROSE’S BAILEE;

6.4.3 ENSURE THAT THE FURNITURE REMAINS READILY IDENTIFIABLE AS OVEROSE’S PROPERTY;

6.4.4 NOT REMOVE, DEFACE OR OBSCURE ANY IDENTIFYING MARK ON THE FURNITURE WHICH RELATES TO OVEROSE OR THE GOODS; AND

6.4.5 MAINTAIN THE FURNITURE IN SATISFACTORY CONDITION AND KEEP FURNITURE APPROPRIATELY INSURED.

6.5 IF, BEFORE TITLE TO THE GOODS PASSES TO THE CUSTOMER, THE CUSTOMER BECOMES SUBJECT TO ANY OF THE EVENTS LISTED IN CONDITION 9.3, OR OVEROSE REASONABLY BELIEVES THAT ANY SUCH EVENT IS ABOUT TO HAPPEN AND NOTIFIES THE CUSTOMER ACCORDINGLY, THEN, PROVIDED THAT THE GOOD HAVE NOT BEEN RESOLD, OR IRREVOCABLY INCORPORATED INTO ANOTHER PRODUCT, AND WITHOUT LIMITING ANY OTHER RIGHT OR REMEDY THAT OVEROSE MAY HAVE, OVEROSE MAY AT ANY TIME REQUIRE THE CUSTOMER TO DELIVER UP THE GOODS AND, IF THE CUSTOMER FAILS TO DO SO PROMPTLY, OVEROSE MAY ENTER ANY PREMISES OF THE CUSTOMER, OR OF ANY THIRD PARTY WHERE THE GOODS ARE STORED, AND RECOVER THE GOODS.

7. PRICE AND PAYMENT

7.1 THE PRICE OF THE GOODS SHALL BE THE PRICE SET OUT IN THE ORDER, OR, IF NO PRICE IS QUOTED, THE PRICE SET OUT IN OVEROSE’S PUBLISHED PRICE LIST IN FORCE AS AT THE DATE OF DELIVERY.

7.2 OVEROSE MAY INCREASE THE PRICE OF THE GOODS TO REFLECT ANY INCREASE IN THE COST OF THE GOODS THAT IS DUE TO:

7.2.1 ANY FACTOR BEYOND OVEROSE’S CONTROL (INCLUDING FOREIGN EXCHANGE FLUCTUATIONS, INCREASES IN TAXES AND DUTIES, AND INCREASES IN LABOUR, MATERIALS AND OTHER MANUFACTURING COSTS);

7.2.2 ANY REQUEST BY THE CUSTOMER TO CHANGE THE DELIVERY DATE(S), QUANTITIES OR TYPES OF GOODS ORDERED; OR

7.2.3 ANY DELAY CAUSED BY ANY INSTRUCTIONS OF THE CUSTOMER OR FAILURE OF THE CUSTOMER TO GIVE OVEROSE ADEQUATE OR ACCURATE INFORMATION OR INSTRUCTIONS.

7.3 THE PRICE OF THE GOODS IS EXCLUSIVE OF AMOUNTS IN RESPECT OF VAT.

7.4 OVEROSE MAY INVOICE THE CUSTOMER FOR THE GOODS ON, OR PRIOR TO, THE DATE OF DESPATCH TO THE CUSTOMER.

7.5 THE CUSTOMER SHALL PAY THE INVOICE IN FULL AND IN CLEARED FUNDS PRIOR TO DELIVERY UNLESS CREDIT FACILITIES HAVE BEEN AGREED IN WRITING BY OVEROSE. OVEROSE HAS THE RIGHT TO WITHDRAW CREDIT FACILITIES FOR ANY REASON AND AT ANY TIME BY NOTICE IN WRITING TO THE CUSTOMER. PAYMENT SHALL BE MADE TO THE BANK ACCOUNT NOMINATED IN WRITING BY OVEROSE. TIME OF PAYMENT IS OF THE ESSENCE.

7.6 IF ANY CREDIT FACILITIES ARE OFFERED TO THE CUSTOMER BY OVEROSE (SUBJECT TO OVEROSE’S COMPLETE DISCRETION AND THE CARRYING OUT OF APPROPRIATE CREDIT CHECKS), THE ORDINARY TIMESCALES FOR PAYMENT WILL BE THIRTY (30) DAYS FOLLOWING THE DATE OF OVEROSE’S INVOICE (UNLESS OVEROSE NOTIFIES THE CUSTOMER TO THE CONTRARY IN WRITING).

7.7 IF THE CUSTOMER FAILS TO MAKE ANY PAYMENT DUE TO OVEROSE UNDER THE CONTRACT BY THE DUE DATE FOR PAYMENT, THEN THE CUSTOMER SHALL PAY INTEREST ON THE OVERDUE AMOUNT AT THE RATE OF 4% PER ANNUM ABOVE THE HSBC BASE RATE FROM TIME TO TIME. SUCH INTEREST SHALL ACCRUE ON A DAILY BASIS FROM THE DUE DATE UNTIL THE DATE OF ACTUAL PAYMENT OF THE OVERDUE AMOUNT, WHETHER BEFORE OR AFTER JUDGMENT. THE CUSTOMER SHALL PAY THE INTEREST TOGETHER WITH THE OVERDUE AMOUNT.

7.8 THE CUSTOMER SHALL PAY ALL AMOUNTS DUE UNDER THE CONTRACT IN FULL WITHOUT ANY DEDUCTION OR WITHHOLDING EXCEPT AS REQUIRED BY LAW AND THE CUSTOMER SHALL NOT BE ENTITLED TO ASSERT ANY TERMS AND CONDITIONS OF SALE CREDIT, SET-OFF OR COUNTERCLAIM AGAINST OVEROSE IN ORDER TO JUSTIFY WITHHOLDING PAYMENT OF ANY SUCH AMOUNT IN WHOLE OR IN PART. OVEROSE MAY AT ANY TIME, WITHOUT LIMITING ANY OTHER RIGHTS OR REMEDIES IT MAY HAVE, SET OFF ANY AMOUNT OWING TO IT BY THE CUSTOMER AGAINST ANY AMOUNT PAYABLE BY OVEROSE TO THE CUSTOMER.

8. CANCELATION

8.1 ONCE OVEROSE HAS ACCEPTED AN ORDER (AND THE CONTRACT HAS COME INTO EXISTENCE IN ACCORDANCE WITH CONDITION 2.3), THE CUSTOMER SHALL ONLY BE ENTITLED TO CANCEL THE CONTRACT AS FOLLOWS:

8.1.1 FOR STANDARD GOODS, ON WRITTEN NOTICE TO OVEROSE, SUCH NOTICE TO BE GIVEN AT LEAST FIVE (5) BUSINESS DAYS PRIOR TO THE APPROXIMATE DELIVERY DATE STIPULATED BY OVEROSE; AND

8.1.2 FOR SEASONAL GOODS, ON WRITTEN NOTICE TO OVEROSE, SUCH NOTICE TO BE GIVEN AT LEAST ONE CALENDAR MONTH PRIOR TO THE APPROXIMATE DELIVERY DATE STIPULATED BY OVEROSE IN EACH CASE, UNLESS OTHERWISE AGREED IN WRITING BETWEEN OVEROSE AND THE CUSTOMER.

8.2 OVEROSE SHALL, IN ITS COMPLETE DISCRETION, BE ENTITLED TO CLOSE THE CUSTOMER’S ACCOUNT IF THE CUSTOMER FAILS TO PLACE ANY ORDERS WITH OVEROSE FOR A PERIOD OF SIX (6) MONTHS AND OVEROSE HAS NO OUTSTANDING DELIVERIES FOR THE CUSTOMER THAT IT IS YET TO MAKE.

9. TERMINATION AND SUSPENSION

9.1 OVEROSE MAY TERMINATE OR SUSPEND THE CONTRACT, OR ANY OTHER CONTRACT(S) BETWEEN THE CUSTOMER AND OVEROSE, AND CANCEL OR SUSPEND ALL FURTHER DELIVERIES UNDER THE SAME, WITHOUT INCURRING ANY LIABILITY TO THE CUSTOMER IF:

9.1.1 THE CUSTOMER FAILS TO MAKE ANY PAYMENT DUE TO OVEROSE UNDER THE CONTRACT, OR ANY OTHER CONTRACT(S) BETWEEN THE CUSTOMER AND OVEROSE, BY THE DUE DATE FOR PAYMENT; AND

9.1.2 ANY AMOUNTS DUE UNDER THE CONTRACT, OR ANY OTHER CONTRACT(S) BETWEEN THE CUSTOMER AND OVEROSE, REMAIN UNPAID (EITHER IN WHOLE OR IN PART) FIVE (5) BUSINESS DAYS FOLLOWING OVEROSE’S NOTICE TO THE CUSTOMER REQUESTING IMMEDIATE PAYMENT.

9.2 IF THE CUSTOMER BECOMES SUBJECT TO ANY OF THE EVENTS LISTED IN CONDITION 9.3, OR OVEROSE REASONABLY BELIEVES THAT THE CUSTOMER IS ABOUT TO BECOME SUBJECT TO ANY OF THEM AND NOTIFIES THE CUSTOMER ACCORDINGLY, THEN, WITHOUT LIMITING ANY OTHER RIGHT OR REMEDY AVAILABLE TO OVEROSE, OVEROSE MAY:

9.2.1 TERMINATE THE CONTRACT WITH IMMEDIATE EFFECT BY GIVING WRITTEN NOTICE TO THE CUSTOMER; OR

9.2.2 CANCEL OR SUSPEND ALL FURTHER DELIVERIES UNDER THE CONTRACT OR UNDER ANY OTHER CONTRACT(S) BETWEEN THE CUSTOMER AND OVEROSE, WITHOUT INCURRING ANY LIABILITY TO THE CUSTOMER, AND ALL OUTSTANDING SUMS IN RESPECT OF GOODS DELIVERED TO THE CUSTOMER SHALL BECOME IMMEDIATELY DUE.

 

9.3 FOR THE PURPOSES OF CONDITION 9.2, THE RELEVANT EVENTS ARE:

9.3.1 THE CUSTOMER SUSPENDS, OR THREATENS TO SUSPEND, PAYMENT OF ITS DEBTS, OR IS UNABLE TO PAY ITS DEBTS AS THEY FALL DUE OR ADMITS INABILITY TO PAY ITS DEBTS, OR (BEING A COMPANY) IS DEEMED UNABLE TO PAY ITS DEBTS, OR (BEING AN INDIVIDUAL) IS DEEMED EITHER UNABLE TO PAY ITS DEBTS OR AS HAVING NO REASONABLE PROSPECT OF SO DOING, IN EITHER CASE, OR (BEING A PARTNERSHIP) HAS ANY PARTNER TO WHOM ANY OF THE FOREGOING APPLY;

9.3.2 THE CUSTOMER COMMENCES NEGOTIATIONS WITH ALL OR ANY CLASS OF ITS CREDITORS WITH A VIEW TO RESCHEDULING ANY OF ITS DEBTS, OR MAKES A PROPOSAL FOR OR ENTERS INTO ANY COMPROMISE OR ARRANGEMENT WITH ITS CREDITORS OTHER THAN (WHERE THE CUSTOMER IS A COMPANY) WHERE THESE EVENTS TAKE PLACE FOR THE SOLE PURPOSE OF A SCHEME FOR A SOLVENT AMALGAMATION OF THE CUSTOMER WITH ONE OR MORE OTHER COMPANIES OR THE SOLVENT RECONSTRUCTION OF THE CUSTOMER;

9.3.3 (BEING A COMPANY) A PETITION IS FILED, A NOTICE IS GIVEN, A RESOLUTION IS PASSED, OR AN ORDER IS MADE, FOR OR IN CONNECTION WITH THE WINDING UP OF THE CUSTOMER, OTHER THAN FOR THE SOLE PURPOSE OF A SCHEME FOR A SOLVENT AMALGAMATION OF THE CUSTOMER WITH ONE OR MORE OTHER COMPANIES OR THE SOLVENT RECONSTRUCTION OF THE CUSTOMER;

9.3.4 (BEING AN INDIVIDUAL) THE CUSTOMER IS THE SUBJECT OF A BANKRUPTCY PETITION OR ORDER;

9.3.5 A CREDITOR OR ENCUMBRANCER OF THE CUSTOMER ATTACHES OR TAKES POSSESSION OF, OR A DISTRESS, EXECUTION, SEQUESTRATION OR OTHER SUCH PROCESS IS LEVIED OR ENFORCED ON OR SUED AGAINST, THE WHOLE OR ANY PART OF ITS ASSETS AND SUCH ATTACHMENT OR PROCESS IS NOT DISCHARGED WITHIN 14 DAYS;

9.3.6 (BEING A COMPANY) AN APPLICATION IS MADE TO COURT, OR AN ORDER IS MADE, FOR THE APPOINTMENT OF AN ADMINISTRATOR OR IF A NOTICE OF INTENTION TO APPOINT AN ADMINISTRATOR IS GIVEN OR IF AN ADMINISTRATOR IS APPOINTED OVER THE CUSTOMER;

9.3.7 (BEING A COMPANY) A FLOATING CHARGE HOLDER OVER THE CUSTOMER’S ASSETS HAS BECOME ENTITLED TO APPOINT OR HAS APPOINTED AN ADMINISTRATIVE RECEIVER;

9.3.8 A PERSON BECOMES ENTITLED TO APPOINT A RECEIVER OVER THE CUSTOMER’S ASSETS OR A RECEIVER IS APPOINTED OVER THE CUSTOMER’S ASSETS;

9.3.9 ANY EVENT OCCURS, OR PROCEEDING IS TAKEN, WITH RESPECT TO THE CUSTOMER IN ANY JURISDICTION TO WHICH IT IS SUBJECT THAT HAS AN EFFECT EQUIVALENT OR SIMILAR TO ANY OF THE EVENTS MENTIONED IN CONDITION 9.3.1 TO CONDITION 9.3.8 (INCLUSIVE);

9.3.10 THE CUSTOMER SUSPENDS, THREATENS TO SUSPEND, CEASES OR THREATENS TO CEASE TO CARRY ON ALL OR SUBSTANTIALLY THE WHOLE OF ITS BUSINESS;

9.3.11 THE CUSTOMER’S FINANCIAL POSITION DETERIORATES TO SUCH AN EXTENT THAT IN OVEROSE’S OPINION THE CUSTOMER’S CAPABILITY TO FULFIL ITS OBLIGATIONS UNDER THE CONTRACT HAS BEEN PLACED IN JEOPARDY; AND

9.3.12 (BEING AN INDIVIDUAL) THE CUSTOMER DIES OR, BY REASON OF ILLNESS OR INCAPACITY (WHETHER MENTAL OR PHYSICAL), IS INCAPABLE OF MANAGING HIS OR HER OWN AFFAIRS O BECOMES A PATIENT UNDER ANY MENTAL HEALTH LEGISLATION.

9.4 TERMINATION OF THE CONTRACT, HOWEVER ARISING, SHALL NOT AFFECT ANY OF THE PARTIES’ RIGHTS AND REMEDIES THAT HAVE ACCRUED AS AT TERMINATION. CONDITIONS WHICH EXPRESSLY OR BY IMPLICATION SURVIVE TERMINATION OF THE CONTRACT SHALL CONTINUE IN FULL FORCE AND EFFECT.

9.5 ON TERMINATION OF THE CONTRACT FOR ANY REASON THE CUSTOMER SHALL IMMEDIATELY PAY TO OVEROSE ALL OF OVEROSE’S OUTSTANDING UNPAID INVOICES AND INTEREST.

10. LIMITATION OF LIABILITY

10.1 OVEROSE’S LIABILITY UNDER THE CONTRACT SHALL BE LIMITED AS SET OUT IN THIS CONDITION 10.

10.2 NOTHING IN THESE CONDITIONS SHALL LIMIT OR EXCLUDE OVEROSE’S LIABILITY FOR:

10.2.1 DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, OR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS (AS APPLICABLE);

10.2.2 FRAUD OR FRAUDULENT MISREPRESENTATION;

10.2.3 BREACH OF THE TERMS;

10.2.4 DEFECTIVE PRODUCTS; OR

10.2.5 ANY MATTER IN RESPECT OF WHICH IT WOULD BE UNLAWFUL FOR OVEROSE TO EXCLUDE OR RESTRICT LIABILITY.

10.3 SUBJECT TO CONDITION 10.2:

10.3.1 OVEROSE SHALL UNDER NO CIRCUMSTANCES WHATEVER BE LIABLE TO THE CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, FOR ANY LOSS OF PROFIT, OR ANY INDIRECT OR CONSEQUENTIAL LOSS ARISING UNDER OR IN CONNECTION WITH THE CONTRACT; AND

10.3.2 OVEROSE’S TOTAL LIABILITY TO THE CUSTOMER IN RESPECT OF ALL OTHER LOSSES ARISING UNDER OR IN CONNECTION WITH THE CONTRACT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, SHALL IN NO CIRCUMSTANCES EXCEED THE LOWER OF €1,000 OR THE CONTRACT PRICE OF THE GOODS SET OUT IN THE RELEVANT ORDER.

11. FORCE MAJEURE

11.1 NEITHER PARTY SHALL BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING ITS OBLIGATIONS UNDER THE CONTRACT TO THE EXTENT THAT SUCH FAILURE OR DELAY IS CAUSED BY A FORCE MAJEURE EVENT.

11.2 A FORCE MAJEURE EVENT MEANS ANY EVENT BEYOND A PARTY’S REASONABLE CONTROL, WHICH BY ITS NATURE COULD NOT HAVE BEEN FORESEEN, OR, IF IT COULD HAVE BEEN FORESEEN, WAS UNAVOIDABLE, INCLUDING STRIKES, LOCK-OUTS OR OTHER INDUSTRIAL DISPUTES (WHETHER INVOLVING ITS OWN WORKFORCE OR A THIRD PARTY’S), FAILURE OF ENERGY SOURCES OR TRANSPORT NETWORK, ACTS OF GOD, WAR, TERRORISM, RIOT, CIVIL COMMOTION, INTERFERENCE BY CIVIL OR MILITARY AUTHORITIES, NATIONAL OR INTERNATIONAL CALAMITY, ARMED CONFLICT, MALICIOUS DAMAGE, BREAKDOWN OF PLANT OR MACHINERY, NUCLEAR, CHEMICAL OR BIOLOGICAL CONTAMINATION, SONIC BOOM, EXPLOSIONS, COLLAPSE OF BUILDING STRUCTURES, FIRES, FLOODS, STORMS, EARTHQUAKES, LOSS AT SEA, EPIDEMICS OR SIMILAR EVENTS, NATURAL DISASTERS OR EXTREME ADVERSE WEATHER CONDITIONS, OR DEFAULT OF SUPPLIERS OR SUBCONTRACTORS.

12. GENERAL

12.1 ASSIGNMENT AND SUBCONTRACTING

12.1.1 OVEROSE MAY AT ANY TIME ASSIGN, TRANSFER, CHARGE, SUBCONTRACT OR DEAL IN ANY OTHER MANNER WITH ALL OR ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THE CONTRACT.

12.1.2 THE CUSTOMER MAY NOT ASSIGN, TRANSFER, CHARGE, SUBCONTRACT OR DEAL IN ANY OTHER MANNER WITH ALL OR ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THE CONTRACT WITHOUT THE PRIOR WRITTEN CONSENT OF OVEROSE.

12.2 NOTICES

12.2.1 ANY NOTICE OR OTHER COMMUNICATION GIVEN TO A PARTY UNDER OR IN CONNECTION WITH THE CONTRACT SHALL BE IN WRITING, ADDRESSED TO THAT PARTY AT ITS REGISTERED OFFICE (IF IT IS A COMPANY) OR ITS PRINCIPAL PLACE OF BUSINESS (IN ANY OTHER CASE) OR SUCH OTHER ADDRESS AS THAT PARTY MAY HAVE SPECIFIED TO THE OTHER PARTY IN WRITING IN ACCORDANCE WITH THIS CONDITION 12.2.1, AND SHALL BE DELIVERED PERSONALLY, SENT BY PRE-PAID FIRST CLASS POST, RECORDED DELIVERY, COMMERCIAL COURIER, FAX OR E-MAIL.

12.2.2 A NOTICE OR OTHER COMMUNICATION SHALL BE DEEMED TO HAVE BEEN RECEIVED: IF DELIVERED PERSONALLY, WHEN LEFT AT THE ADDRESS REFERRED TO IN CONDITION 12.2.1; IF SENT BY PRE-PAID FIRST CLASS POST OR RECORDED DELIVERY, AT 9.00 AM ON THE SECOND BUSINESS DAY AFTER POSTING; IF DELIVERED BY COMMERCIAL COURIER, ON THE DATE AND AT THE TIME THAT THE COURIER’S DELIVERY RECEIPT IS SIGNED; OR, IF SENT BY FAX OR E-MAIL, ONE (1) BUSINESS DAY AFTER TRANSMISSION.

12.2.3 THE PROVISIONS OF THIS CONDITION 12.2 SHALL NOT APPLY TO THE SERVICE OF ANY PROCEEDINGS OR OTHER DOCUMENTS IN ANY LEGAL ACTION.

12.3 SEVERANCE

12.3.1 IF ANY COURT OR COMPETENT AUTHORITY FINDS THAT ANY PROVISION OF THE CONTRACT (OR PART OF ANY PROVISION) IS INVALID, ILLEGAL OR UNENFORCEABLE, THAT PROVISION OR PART-PROVISION SHALL, TO THE EXTENT REQUIRED, BE DEEMED TO BE DELETED, AND THE VALIDITY AND ENFORCEABILITY OF THE OTHER PROVISIONS OF THE CONTRACT SHALL NOT BE AFFECTED.

12.3.2 IF ANY INVALID, UNENFORCEABLE OR ILLEGAL PROVISION OF THE CONTRACT WOULD BE VALID, ENFORCEABLE AND LEGAL IF SOME PART OF IT WERE DELETED, THE PROVISION SHALL APPLY WITH THE MINIMUM MODIFICATION NECESSARY TO MAKE IT LEGAL, VALID AND ENFORCEABLE.

12.4 WAIVER

12.4.1 A WAIVER OF ANY RIGHT OR REMEDY UNDER THE CONTRACT IS ONLY EFFECTIVE IF GIVEN IN WRITING AND SHALL NOT BE DEEMED A WAIVER OF ANY SUBSEQUENT BREACH OR DEFAULT. NO FAILURE OR DELAY BY A PARTY TO EXERCISE ANY RIGHT OR REMEDY PROVIDED UNDER THE CONTRACT OR BY LAW SHALL CONSTITUTE A WAIVER OF THAT OR ANY OTHER RIGHT OR REMEDY, NOR SHALL IT PRECLUDE OR RESTRICT THE FURTHER EXERCISE OF THAT OR ANY OTHER RIGHT OR REMEDY. NO SINGLE OR PARTIAL EXERCISE OF SUCH RIGHT OR REMEDY SHALL PRECLUDE OR RESTRICT THE FURTHER EXERCISE OF THAT OR ANY OTHER RIGHT OR REMEDY.

12.5 THIRD PARTY RIGHTS

12.5.1 A PERSON WHO IS NOT A PARTY TO THE CONTRACT SHALL NOT HAVE ANY RIGHTS UNDER THE CONTRACT OR IN CONNECTION WITH IT.

12.6 VARIATION

12.6.1 EXCEPT AS SET OUT IN THESE CONDITIONS, ANY VARIATION TO THE CONTRACT, INCLUDING THE INTRODUCTION OF ANY ADDITIONAL TERMS AND CONDITIONS, SHALL ONLY BE BINDING WHEN AGREED BETWEEN THE PARTIES IN WRITING.

12.7 GOVERNING LAW AND JURISDICTION

12.7.1 THE CONTRACT, AND ANY DISPUTE OR CLAIM ARISING OUT OF OR IN CONNECTION WITH IT OR ITS SUBJECT MATTER OR FORMATION (INCLUDING NON-CONTRACTUAL DISPUTES OR CLAIMS), SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, FRENCH LAW, AND THE PARTIES IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF FRANCE.

1. DEFINITIONS

IN THESE CONDITIONS, THE FOLLOWING DEFINITIONS APPLY:
BUSINESS DAY: A DAY (OTHER THAN A SATURDAY, SUNDAY OR PUBLIC HOLIDAY) WHEN BANKS IN FRANCE ARE OPEN FOR BUSINESS.
CONDITIONS: THE TERMS AND CONDITIONS SET OUT IN THIS DOCUMENT, AS AMENDED FROM TIME TO TIME.
CONTRACT: THE CONTRACT BETWEEN OVEROSE AND THE CUSTOMER FOR THE SALE AND PURCHASE OF THE GOODS.
CUSTOMER: THE PERSON OR FIRM WHO PURCHASES THE GOODS FROM OVEROSE.
DELIVERY LOCATION: HAS THE MEANING GIVEN IN CONDITION 4.2.
FORCE MAJEURE EVENT: HAS THE MEANING GIVEN IN CONDITION 11.
GOODS: THE GOODS (OR ANY PART OF THEM) SET OUT IN THE ORDER.
ORDER: THE CUSTOMER’S ORDER FOR THE GOODS.
VAT: VALUE ADDED TAX AND ANY SIMILAR REPLACEMENT OR ADDITIONAL TAX.
1.2.1 A PERSON INCLUDES A NATURAL PERSON, CORPORATE OR UNINCORPORATED BODY (WHETHER OR NOT HAVING SEPARATE LEGAL PERSONALITY).
1.2.2 A REFERENCE TO A PARTY INCLUDES ITS PERSONAL REPRESENTATIVES, SUCCESSORS OR PERMITTED ASSIGNS.
1.2.3 A REFERENCE TO A STATUTE OR STATUTORY PROVISION IS A REFERENCE TO SUCH STATUTE OR PROVISION AS AMENDED OR RE-ENACTED. A REFERENCE TO A STATUTE OR STATUTORY PROVISION INCLUDES ANY SUBORDINATE LEGISLATION MADE UNDER THAT STATUTE OR STATUTORY PROVISION, AS AMENDED OR RE-ENACTED.
1.2.4 ANY PHRASE INTRODUCED BY THE TERMS INCLUDING, INCLUDE, IN PARTICULAR OR ANY SIMILAR EXPRESSION SHALL BE CONSTRUED AS ILLUSTRATIVE AND SHALL NOT LIMIT THE SENSE OF THE WORDS PRECEDING THOSE TERMS.
1.2.5 A REFERENCE TO WRITING OR WRITTEN INCLUDES FAXES AND E-MAILS.
OVEROSE: OVEROSE FRANCE REGISTERED IN FRANCE WITH COMPANY NUMBER 03530345, WHOSE REGISTERED OFFICE IS AT 4 RUE MANUEL, 75009 PARIS, FRANCE
2. BASIS OF CONTRACT
2.1 THESE CONDITIONS APPLY TO THE CONTRACT TO THE EXCLUSION OF ANY OTHER TERMS THAT THE CUSTOMER SEEKS TO IMPOSE OR INCORPORATE, OR WHICH ARE IMPLIED BY TRADE, CUSTOM, PRACTICE OR COURSE OF DEALING.
2.2 THE ORDER CONSTITUTES AN OFFER BY THE CUSTOMER TO PURCHASE THE GOODS IN ACCORDANCE WITH THESE CONDITIONS. THE CUSTOMER IS RESPONSIBLE FOR ENSURING THAT THE TERMS OF THE ORDER ARE COMPLETE AND ACCURATE.
2.3 THE ORDER SHALL ONLY BE DEEMED TO BE ACCEPTED WHEN OVEROSE ACCEPTS THE ORDER AT WHICH POINT THE CONTRACT SHALL COME INTO EXISTENCE. ALL ORDERS ARE ACCEPTED SUBJECT TO AVAILABILITY. FOR THE AVOIDANCE OF DOUBT, ANY QUOTATION FOR GOODS THAT IS GIVEN BY OVEROSE SHALL NOT CONSTITUTE AN OFFER.
2.4 EACH ORDER THAT IS ACCEPTED BY OVEROSE SHALL FORM THE BASIS OF A SEPARATE CONTRACT. IF THE CUSTOMER SUBMITS MULTIPLE ORDERS AND THESE ARE ACCEPTED BY OVEROSE, THE CUSTOMER WILL ENTER INTO A SEPARATE CONTRACT WITH OVEROSE IN RESPECT OF EACH ORDER THAT IS ACCEPTED.
2.5 ORDERS SHALL ONLY BE ACCEPTED BY OVEROSE IN SUCH QUANTITIES STATED IN OVEROSE’S PRICE LIST AND SALES LITERATURE.
2.6 THE CONTRACT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES. THE CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY STATEMENT, PROMISE OR REPRESENTATION MADE OR GIVEN BY (OR ON BEHALF OF) OVEROSE WHICH IS NOT SET OUT IN THE CONTRACT.
2.7 ANY SAMPLES, DRAWINGS, DESCRIPTIVE MATTER, OR ADVERTISING MATERIALS PRODUCED BY OVEROSE AND ANY DESCRIPTIONS OR ILLUSTRATIONS CONTAINED IN OVEROSE’S LITERATURE OR ON ITS WEBSITE ARE PRODUCED FOR THE SOLE PURPOSE OF GIVING AN APPROXIMATE IDEA OF THE GOODS DESCRIBED IN THEM. THEY SHALL NOT FORM PART OF THE CONTRACT OR HAVE ANY CONTRACTUAL FORCE.
2.8 IF OVEROSE ACCEPTS AN ORDER FROM THE CUSTOMER IN RESPECT OF GOODS THAT FORM PART OF A OVEROSE SPONSORED PROMOTION, THE TERMS OF THE OVEROSE SPONSORED PROMOTION (AS AMENDED FROM TIME TO TIME) SHALL FORM PART OF THE CONTRACT.
3. GOODS

3.1 OVEROSE RESERVES THE RIGHT TO MODIFY THE GOODS AT ANY TIME WITHOUT NOTICE.

3.2 ALL PRICES PUBLISHED BY OVEROSE FOR THE SALE OF GOODS IN THE EU TO CUSTOMERS ARE STRICTLY NET.

 

4. DELIVERY

4.1 OVEROSE SHALL ENSURE THAT EACH DELIVERY OF THE GOODS IS ACCOMPANIED BY A DELIVERY NOTE WHICH SHOWS THE DATE OF THE ORDER, ALL RELEVANT CUSTOMER AND OVEROSE REFERENCE NUMBERS, THE TYPE AND QUANTITY OF THE GOODS (INCLUDING THE CODE NUMBER OF THE GOODS, WHERE APPLICABLE), SPECIAL STORAGE INSTRUCTIONS (IF ANY) AND, IF THE ORDER IS BEING DELIVERED BY INSTALMENTS, THE OUTSTANDING BALANCE OF GOODS REMAINING TO BE DELIVERED.

4.2 OVEROSE SHALL DELIVER THE GOODS TO THE LOCATION SET OUT IN THE ORDER OR SUCH OTHER LOCATION AS THE PARTIES MAY AGREE (DELIVERY LOCATION).

4.3 DELIVERY OF THE GOODS SHALL BE COMPLETED WHEN THE GOODS ARRIVE AT THE DELIVERY LOCATION.

4.4 ANY DATES QUOTED FOR DELIVERY ARE APPROXIMATE ONLY, AND THE TIME OF DELIVERY IS NOT OF THE ESSENCE. OVEROSE SHALL NOT BE LIABLE FOR ANY DELAY IN DELIVERY OF THE GOODS THAT IS CAUSED BY A FORCE MAJEURE EVENT OR THE CUSTOMER’S FAILURE TO PROVIDE OVEROSE WITH ADEQUATE DELIVERY INSTRUCTIONS OR ANY OTHER INSTRUCTIONS THAT ARE RELEVANT TO THE SUPPLY OF THE GOODS.

4.5 IF THE CUSTOMER RECEIVES AN INVOICE FOR GOODS WHICH OVEROSE FAILS TO DELIVER, THE CUSTOMER SHALL NOTIFY OVEROSE WITHIN TEN (10) BUSINESS DAYS FOLLOWING THE DATE OF THE INVOICE.

4.6 OVEROSE SHALL HAVE NO LIABILITY FOR ANY FAILURE TO DELIVER THE GOODS TO THE EXTENT THAT SUCH FAILURE IS CAUSED BY A FORCE MAJEURE EVENT, OVEROSE’S DECISION TO CANCEL AN ORDER OR THE CUSTOMER’S FAILURE TO PROVIDE OVEROSE WITH ADEQUATE DELIVERY INSTRUCTIONS OR ANY OTHER INSTRUCTIONS THAT ARE RELEVANT TO THE SUPPLY OF THE GOODS.

4.7 IF THE CUSTOMER FAILS TO ACCEPT DELIVERY OF THE GOODS WITHIN THREE (3) BUSINESS DAYS OF OVEROSE NOTIFYING THE CUSTOMER THAT THE GOODS ARE READY, THEN, EXCEPT WHERE SUCH FAILURE OR DELAY IS CAUSED BY A FORCE MAJEURE EVENT OR OVEROSE’S FAILURE TO COMPLY WITH ITS OBLIGATIONS UNDER THE CONTRACT:

4.7.1 DELIVERY OF THE GOODS SHALL BE DEEMED TO HAVE BEEN COMPLETED AT 9.00 AM ON THE THIRD BUSINESS DAY AFTER THE DAY ON WHICH OVEROSE NOTIFIED THE CUSTOMER THAT THE GOODS WERE READY; AND

4.7.2 OVEROSE SHALL STORE THE GOODS UNTIL DELIVERY TAKES PLACE, AND MAY CHARGE THE CUSTOMER FOR ALL RELATED COSTS AND EXPENSES (INCLUDING INSURANCE).

4.8 IF, TEN (10) BUSINESS DAYS AFTER THE DAY ON WHICH OVEROSE NOTIFIED THE CUSTOMER THAT THE GOODS WERE READY FOR DELIVERY, THE CUSTOMER HAS NOT ACCEPTED DELIVERY OF THEM, OVEROSE MAY RESELL OR OTHERWISE DISPOSE OF PART OR ALL OF THE GOODS AND, AFTER DEDUCTING REASONABLE STORAGE AND SELLING COSTS, ACCOUNT TO THE CUSTOMER FOR ANY EXCESS OVER THE PRICE OF THE GOODS OR CHARGE THE CUSTOMER FOR ANY SHORTFALL BELOW THE PRICE OF THE GOODS.

4.9 THE CUSTOMER SHALL NOT BE ENTITLED TO REJECT THE GOODS IF OVEROSE DELIVERS UP TO AND INCLUDING 5% MORE OR LESS THAN THE QUANTITY OF GOODS ORDERED, BUT A PRO RATA ADJUSTMENT SHALL BE MADE TO THE ORDER INVOICE ON RECEIPT OF NOTICE FROM THE CUSTOMER THAT THE WRONG QUANTITY OF GOODS WAS DELIVERED. THE CUSTOMER SHALL NOTIFY OVEROSE AND THE RELEVANT CARRIER IN WRITING WITHIN TEN (10) BUSINESS DAYS FOLLOWING THE DATE OF DELIVERY OF THE GOODS THAT THE WRONG QUANTITY OF GOODS HAS BEEN DELIVERED. FAILURE TO DO SO WILL RELEASE OVEROSE FROM LIABILITY IN RESPECT OF A CLAIM MADE BY THE CUSTOMER RELATING TO THE WRONG QUANTITY OF GOODS BEING DELIVERED.

4.10 OVEROSE MAY DELIVER THE GOODS BY INSTALMENTS, WHICH SHALL BE INVOICED AND PAID FOR SEPARATELY. EACH INSTALLMENT SHALL CONSTITUTE A SEPARATE CONTRACT. ANY DELAY IN DELIVERY OR DEFECT IN AN INSTALMENT SHALL NOT ENTITLE THE CUSTOMER TO CANCEL ANY OTHER INSTALMENT.

4.11 THE CUSTOMER SHALL BE RESPONSIBLE FOR OBTAINING, AT ITS OWN COST, SUCH LICENCES AND OTHER CONSENTS IN RELATION TO THE GOODS AS ARE REQUIRED FROM TIME TO TIME AND, IF REQUIRED BY OVEROSE, THE CUSTOMER SHALL MAKE THOSE LICENCES AND CONSENTS AVAILABLE TO OVEROSE PRIOR TO THE DATE OF DESPATCH OF THE RELEVANT SHIPMENT.

4.12 GOODS CORRECTLY DELIVERED WILL NOT BE ACCEPTED BACK OR EXCHANGED BY OVEROSE IN FULL OR IN PART UNLESS OVEROSE HAS AGREED IN WRITING TO DO SO, WHICH SHALL ONLY BE IN EXCEPTIONAL CIRCUMSTANCES.

5. QUALITY

5.1 OVEROSE WARRANTS THAT ON DELIVERY, THE GOODS SHALL:

5.1.1 BE FREE FROM MATERIAL DEFECTS IN DESIGN, MATERIAL AND WORKMANSHIP;

5.1.2 BE OF SATISFACTORY QUALITY; AND

5.1.3 BE FIT FOR ANY PURPOSE HELD OUT BY OVEROSE.

5.2 SUBJECT TO CONDITION 5.3, IF:

5.2.1 WITHIN TEN (10) BUSINESS DAYS AFTER DELIVERY, THE CUSTOMER GIVES PROMPT WRITTEN NOTICE TO OVEROSE FOLLOWING ITS DISCOVERY THAT SOME OR ALL OF THE GOODS DO NOT COMPLY WITH THE WARRANTY SET OUT IN CONDITION 5.1; AND

5.2.2 OVEROSE IS GIVEN A REASONABLE OPPORTUNITY OF EXAMINING SUCH GOODS; AND

5.2.3 THE CUSTOMER (IF ASKED TO DO SO BY OVEROSE) RETURNS SUCH GOODS TO OVEROSE’S PLACE OF BUSINESS AT OVEROSE’S COST, OVEROSE SHALL, AT ITS OPTION, REPLACE THE DEFECTIVE GOODS, OR REFUND THE PRICE OF THE DEFECTIVE GOODS IN FULL.

5.3 OVEROSE SHALL NOT BE LIABLE FOR ANY FAILURE OF THE GOODS TO COMPLY WITH THE WARRANTY SET OUT IN CONDITION 5.1 IN ANY OF THE FOLLOWING EVENTS:

5.3.1 THE CUSTOMER MAKES ANY FURTHER USE OF SUCH GOODS AFTER GIVING NOTICE TO OVEROSE IN ACCORDANCE WITH CONDITION 5.2;

5.3.2 THE DEFECT ARISES BECAUSE THE CUSTOMER FAILED TO FOLLOW OVEROSE’S ORAL OR WRITTEN INSTRUCTIONS AS TO THE STORAGE, USE OR TREATMENT OF THE GOODS OR (IF THERE ARE NONE) GOOD TRADE PRACTICE REGARDING THE SAME;

5.3.3 THE CUSTOMER ALTERS SUCH GOODS WITHOUT THE WRITTEN CONSENT OF OVEROSE;

5.3.4 THE DEFECT ARISES AS A RESULT OF WILFUL DAMAGE, NEGLIGENCE, OR ABNORMAL STORAGE OR WORKING CONDITIONS; OR

5.3.5 THE GOODS DIFFER FROM THEIR DESCRIPTION OR SPECIFICATION AS A RESULT OF CHANGES MADE TO ENSURE THEY COMPLY WITH APPLICABLE STATUTORY OR REGULATORY REQUIREMENTS.

5.4 EXCEPT AS PROVIDED IN THIS CONDITION 5, OVEROSE SHALL HAVE NO LIABILITY TO THE CUSTOMER

IN RESPECT OF ANY FAILURE OF THE GOODS TO COMPLY WITH THE WARRANTY SET OUT IN CONDITION 5.1.

5.5 EXCEPT AS SET OUT IN THESE CONDITIONS, ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED FROM THE CONTRACT.

5.6 THESE CONDITIONS SHALL APPLY TO ANY REPLACEMENT GOODS SUPPLIED BY OVEROSE.

6. TITLE AND RISK

6.1 THE RISK IN THE GOODS SHALL PASS TO THE CUSTOMER ON COMPLETION OF DELIVERY.

6.2 TITLE TO THE GOODS SHALL NOT PASS TO THE CUSTOMER UNTIL OVEROSE HAS RECEIVED PAYMENT IN FULL (IN CASH OR CLEARED FUNDS) FOR:

6.2.1 THE GOODS; AND

6.2.2 ANY OTHER GOODS OR SERVICES THAT OVEROSE HAS SUPPLIED TO THE CUSTOMER IN RESPECT OF WHICH PAYMENT HAS BECOME DUE.

6.3 UNTIL TITLE TO THE GOODS HAS PASSED TO THE CUSTOMER, THE CUSTOMER SHALL:

6.3.1 HOLD THE GOODS ON A FIDUCIARY BASIS AS OVEROSE’S BAILEE;

6.3.2 STORE THE GOODS SEPARATELY FROM ALL OTHER GOODS HELD BY THE CUSTOMER SO THAT THEY REMAIN READILY IDENTIFIABLE AS OVEROSE’S PROPERTY;

6.3.3 NOT REMOVE, DEFACE OR OBSCURE ANY IDENTIFYING MARK OR PACKAGING ON OR RELATING TO THE GOODS;

6.3.4 MAINTAIN THE GOODS IN SATISFACTORY CONDITION AND KEEP THEM INSURED AGAINST ALL RISKS FOR THEIR FULL PRICE FROM THE DATE OF DELIVERY;

6.3.5 NOTIFY OVEROSE IMMEDIATELY IF THE CUSTOMER BECOMES SUBJECT TO ANY OF THE EVENTS LISTED IN CONDITION 9.3; AND

6.3.6 GIVE OVEROSE SUCH INFORMATION RELATING TO THE GOODS AS OVEROSE MAY REQUIRE FROM TIME TO TIME, BUT THE CUSTOMER MAY RESELL OR USE THE GOODS IN THE ORDINARY COURSE OF ITS BUSINESS.

6.4 WHERE THE CUSTOMER USES OVEROSE FURNITURE IN ORDER TO ADVERTISE, PROMOTE AND SELL THE GOODS, TITLE TO THE FURNITURE SHALL NOT PASS TO THE CUSTOMER UNTIL OVEROSE HAS RECEIVED PAYMENT FOR THE FURNITURE IN FULL (IN CASH OR CLEARED FUNDS). UNLESS AND UNTIL TITLE TO THE FURNITURE HAS PASSED TO THE CUSTOMER, THE CUSTOMER SHALL:

6.4.1 USE THE FURNITURE ONLY FOR THE DISPLAY OF THE GOODS, OR OTHER GOODS SUPPLIED BY OVEROSE;

6.4.2 HOLD THE FURNITURE ON A FIDUCIARY BASIS AS OVEROSE’S BAILEE;

6.4.3 ENSURE THAT THE FURNITURE REMAINS READILY IDENTIFIABLE AS OVEROSE’S PROPERTY;

6.4.4 NOT REMOVE, DEFACE OR OBSCURE ANY IDENTIFYING MARK ON THE FURNITURE WHICH RELATES TO OVEROSE OR THE GOODS; AND

6.4.5 MAINTAIN THE FURNITURE IN SATISFACTORY CONDITION AND KEEP FURNITURE APPROPRIATELY INSURED.

6.5 IF, BEFORE TITLE TO THE GOODS PASSES TO THE CUSTOMER, THE CUSTOMER BECOMES SUBJECT TO ANY OF THE EVENTS LISTED IN CONDITION 9.3, OR OVEROSE REASONABLY BELIEVES THAT ANY SUCH EVENT IS ABOUT TO HAPPEN AND NOTIFIES THE CUSTOMER ACCORDINGLY, THEN, PROVIDED THAT THE GOOD HAVE NOT BEEN RESOLD, OR IRREVOCABLY INCORPORATED INTO ANOTHER PRODUCT, AND WITHOUT LIMITING ANY OTHER RIGHT OR REMEDY THAT OVEROSE MAY HAVE, OVEROSE MAY AT ANY TIME REQUIRE THE CUSTOMER TO DELIVER UP THE GOODS AND, IF THE CUSTOMER FAILS TO DO SO PROMPTLY, OVEROSE MAY ENTER ANY PREMISES OF THE CUSTOMER, OR OF ANY THIRD PARTY WHERE THE GOODS ARE STORED, AND RECOVER THE GOODS.

7. PRICE AND PAYMENT

7.1 THE PRICE OF THE GOODS SHALL BE THE PRICE SET OUT IN THE ORDER, OR, IF NO PRICE IS QUOTED, THE PRICE SET OUT IN OVEROSE’S PUBLISHED PRICE LIST IN FORCE AS AT THE DATE OF DELIVERY.

7.2 OVEROSE MAY INCREASE THE PRICE OF THE GOODS TO REFLECT ANY INCREASE IN THE COST OF THE GOODS THAT IS DUE TO:

7.2.1 ANY FACTOR BEYOND OVEROSE’S CONTROL (INCLUDING FOREIGN EXCHANGE FLUCTUATIONS, INCREASES IN TAXES AND DUTIES, AND INCREASES IN LABOUR, MATERIALS AND OTHER MANUFACTURING COSTS);

7.2.2 ANY REQUEST BY THE CUSTOMER TO CHANGE THE DELIVERY DATE(S), QUANTITIES OR TYPES OF GOODS ORDERED; OR

7.2.3 ANY DELAY CAUSED BY ANY INSTRUCTIONS OF THE CUSTOMER OR FAILURE OF THE CUSTOMER TO GIVE OVEROSE ADEQUATE OR ACCURATE INFORMATION OR INSTRUCTIONS.

7.3 THE PRICE OF THE GOODS IS EXCLUSIVE OF AMOUNTS IN RESPECT OF VAT.

7.4 OVEROSE MAY INVOICE THE CUSTOMER FOR THE GOODS ON, OR PRIOR TO, THE DATE OF DESPATCH TO THE CUSTOMER.

7.5 THE CUSTOMER SHALL PAY THE INVOICE IN FULL AND IN CLEARED FUNDS PRIOR TO DELIVERY UNLESS CREDIT FACILITIES HAVE BEEN AGREED IN WRITING BY OVEROSE. OVEROSE HAS THE RIGHT TO WITHDRAW CREDIT FACILITIES FOR ANY REASON AND AT ANY TIME BY NOTICE IN WRITING TO THE CUSTOMER. PAYMENT SHALL BE MADE TO THE BANK ACCOUNT NOMINATED IN WRITING BY OVEROSE. TIME OF PAYMENT IS OF THE ESSENCE.

7.6 IF ANY CREDIT FACILITIES ARE OFFERED TO THE CUSTOMER BY OVEROSE (SUBJECT TO OVEROSE’S COMPLETE DISCRETION AND THE CARRYING OUT OF APPROPRIATE CREDIT CHECKS), THE ORDINARY TIMESCALES FOR PAYMENT WILL BE THIRTY (30) DAYS FOLLOWING THE DATE OF OVEROSE’S INVOICE (UNLESS OVEROSE NOTIFIES THE CUSTOMER TO THE CONTRARY IN WRITING).

7.7 IF THE CUSTOMER FAILS TO MAKE ANY PAYMENT DUE TO OVEROSE UNDER THE CONTRACT BY THE DUE DATE FOR PAYMENT, THEN THE CUSTOMER SHALL PAY INTEREST ON THE OVERDUE AMOUNT AT THE RATE OF 4% PER ANNUM ABOVE THE HSBC BASE RATE FROM TIME TO TIME. SUCH INTEREST SHALL ACCRUE ON A DAILY BASIS FROM THE DUE DATE UNTIL THE DATE OF ACTUAL PAYMENT OF THE OVERDUE AMOUNT, WHETHER BEFORE OR AFTER JUDGMENT. THE CUSTOMER SHALL PAY THE INTEREST TOGETHER WITH THE OVERDUE AMOUNT.

7.8 THE CUSTOMER SHALL PAY ALL AMOUNTS DUE UNDER THE CONTRACT IN FULL WITHOUT ANY DEDUCTION OR WITHHOLDING EXCEPT AS REQUIRED BY LAW AND THE CUSTOMER SHALL NOT BE ENTITLED TO ASSERT ANY TERMS AND CONDITIONS OF SALE CREDIT, SET-OFF OR COUNTERCLAIM AGAINST OVEROSE IN ORDER TO JUSTIFY WITHHOLDING PAYMENT OF ANY SUCH AMOUNT IN WHOLE OR IN PART. OVEROSE MAY AT ANY TIME, WITHOUT LIMITING ANY OTHER RIGHTS OR REMEDIES IT MAY HAVE, SET OFF ANY AMOUNT OWING TO IT BY THE CUSTOMER AGAINST ANY AMOUNT PAYABLE BY OVEROSE TO THE CUSTOMER.

8. CANCELATION

8.1 ONCE OVEROSE HAS ACCEPTED AN ORDER (AND THE CONTRACT HAS COME INTO EXISTENCE IN ACCORDANCE WITH CONDITION 2.3), THE CUSTOMER SHALL ONLY BE ENTITLED TO CANCEL THE CONTRACT AS FOLLOWS:

8.1.1 FOR STANDARD GOODS, ON WRITTEN NOTICE TO OVEROSE, SUCH NOTICE TO BE GIVEN AT LEAST FIVE (5) BUSINESS DAYS PRIOR TO THE APPROXIMATE DELIVERY DATE STIPULATED BY OVEROSE; AND

8.1.2 FOR SEASONAL GOODS, ON WRITTEN NOTICE TO OVEROSE, SUCH NOTICE TO BE GIVEN AT LEAST ONE CALENDAR MONTH PRIOR TO THE APPROXIMATE DELIVERY DATE STIPULATED BY OVEROSE IN EACH CASE, UNLESS OTHERWISE AGREED IN WRITING BETWEEN OVEROSE AND THE CUSTOMER.

8.2 OVEROSE SHALL, IN ITS COMPLETE DISCRETION, BE ENTITLED TO CLOSE THE CUSTOMER’S ACCOUNT IF THE CUSTOMER FAILS TO PLACE ANY ORDERS WITH OVEROSE FOR A PERIOD OF SIX (6) MONTHS AND OVEROSE HAS NO OUTSTANDING DELIVERIES FOR THE CUSTOMER THAT IT IS YET TO MAKE.

9. TERMINATION AND SUSPENSION

9.1 OVEROSE MAY TERMINATE OR SUSPEND THE CONTRACT, OR ANY OTHER CONTRACT(S) BETWEEN THE CUSTOMER AND OVEROSE, AND CANCEL OR SUSPEND ALL FURTHER DELIVERIES UNDER THE SAME, WITHOUT INCURRING ANY LIABILITY TO THE CUSTOMER IF:

9.1.1 THE CUSTOMER FAILS TO MAKE ANY PAYMENT DUE TO OVEROSE UNDER THE CONTRACT, OR ANY OTHER CONTRACT(S) BETWEEN THE CUSTOMER AND OVEROSE, BY THE DUE DATE FOR PAYMENT; AND

9.1.2 ANY AMOUNTS DUE UNDER THE CONTRACT, OR ANY OTHER CONTRACT(S) BETWEEN THE CUSTOMER AND OVEROSE, REMAIN UNPAID (EITHER IN WHOLE OR IN PART) FIVE (5) BUSINESS DAYS FOLLOWING OVEROSE’S NOTICE TO THE CUSTOMER REQUESTING IMMEDIATE PAYMENT.

9.2 IF THE CUSTOMER BECOMES SUBJECT TO ANY OF THE EVENTS LISTED IN CONDITION 9.3, OR OVEROSE REASONABLY BELIEVES THAT THE CUSTOMER IS ABOUT TO BECOME SUBJECT TO ANY OF THEM AND NOTIFIES THE CUSTOMER ACCORDINGLY, THEN, WITHOUT LIMITING ANY OTHER RIGHT OR REMEDY AVAILABLE TO OVEROSE, OVEROSE MAY:

9.2.1 TERMINATE THE CONTRACT WITH IMMEDIATE EFFECT BY GIVING WRITTEN NOTICE TO THE CUSTOMER; OR

9.2.2 CANCEL OR SUSPEND ALL FURTHER DELIVERIES UNDER THE CONTRACT OR UNDER ANY OTHER CONTRACT(S) BETWEEN THE CUSTOMER AND OVEROSE, WITHOUT INCURRING ANY LIABILITY TO THE CUSTOMER, AND ALL OUTSTANDING SUMS IN RESPECT OF GOODS DELIVERED TO THE CUSTOMER SHALL BECOME IMMEDIATELY DUE.

9.3 FOR THE PURPOSES OF CONDITION 9.2, THE RELEVANT EVENTS ARE:

9.3.1 THE CUSTOMER SUSPENDS, OR THREATENS TO SUSPEND, PAYMENT OF ITS DEBTS, OR IS UNABLE TO PAY ITS DEBTS AS THEY FALL DUE OR ADMITS INABILITY TO PAY ITS DEBTS, OR (BEING A COMPANY) IS DEEMED UNABLE TO PAY ITS DEBTS, OR (BEING AN INDIVIDUAL) IS DEEMED EITHER UNABLE TO PAY ITS DEBTS OR AS HAVING NO REASONABLE PROSPECT OF SO DOING, IN EITHER CASE, OR (BEING A PARTNERSHIP) HAS ANY PARTNER TO WHOM ANY OF THE FOREGOING APPLY;

9.3.2 THE CUSTOMER COMMENCES NEGOTIATIONS WITH ALL OR ANY CLASS OF ITS CREDITORS WITH A VIEW TO RESCHEDULING ANY OF ITS DEBTS, OR MAKES A PROPOSAL FOR OR ENTERS INTO ANY COMPROMISE OR ARRANGEMENT WITH ITS CREDITORS OTHER THAN (WHERE THE CUSTOMER IS A COMPANY) WHERE THESE EVENTS TAKE PLACE FOR THE SOLE PURPOSE OF A SCHEME FOR A SOLVENT AMALGAMATION OF THE CUSTOMER WITH ONE OR MORE OTHER COMPANIES OR THE SOLVENT RECONSTRUCTION OF THE CUSTOMER;

9.3.3 (BEING A COMPANY) A PETITION IS FILED, A NOTICE IS GIVEN, A RESOLUTION IS PASSED, OR AN ORDER IS MADE, FOR OR IN CONNECTION WITH THE WINDING UP OF THE CUSTOMER, OTHER THAN FOR THE SOLE PURPOSE OF A SCHEME FOR A SOLVENT AMALGAMATION OF THE CUSTOMER WITH ONE OR MORE OTHER COMPANIES OR THE SOLVENT RECONSTRUCTION OF THE CUSTOMER;

9.3.4 (BEING AN INDIVIDUAL) THE CUSTOMER IS THE SUBJECT OF A BANKRUPTCY PETITION OR ORDER;

9.3.5 A CREDITOR OR ENCUMBRANCER OF THE CUSTOMER ATTACHES OR TAKES POSSESSION OF, OR A DISTRESS, EXECUTION, SEQUESTRATION OR OTHER SUCH PROCESS IS LEVIED OR ENFORCED ON OR SUED AGAINST, THE WHOLE OR ANY PART OF ITS ASSETS AND SUCH ATTACHMENT OR PROCESS IS NOT DISCHARGED WITHIN 14 DAYS;

9.3.6 (BEING A COMPANY) AN APPLICATION IS MADE TO COURT, OR AN ORDER IS MADE, FOR THE APPOINTMENT OF AN ADMINISTRATOR OR IF A NOTICE OF INTENTION TO APPOINT AN ADMINISTRATOR IS GIVEN OR IF AN ADMINISTRATOR IS APPOINTED OVER THE CUSTOMER;

9.3.7 (BEING A COMPANY) A FLOATING CHARGE HOLDER OVER THE CUSTOMER’S ASSETS HAS BECOME ENTITLED TO APPOINT OR HAS APPOINTED AN ADMINISTRATIVE RECEIVER;

9.3.8 A PERSON BECOMES ENTITLED TO APPOINT A RECEIVER OVER THE CUSTOMER’S ASSETS OR A RECEIVER IS APPOINTED OVER THE CUSTOMER’S ASSETS;

9.3.9 ANY EVENT OCCURS, OR PROCEEDING IS TAKEN, WITH RESPECT TO THE CUSTOMER IN ANY JURISDICTION TO WHICH IT IS SUBJECT THAT HAS AN EFFECT EQUIVALENT OR SIMILAR TO ANY OF THE EVENTS MENTIONED IN CONDITION 9.3.1 TO CONDITION 9.3.8 (INCLUSIVE);

9.3.10 THE CUSTOMER SUSPENDS, THREATENS TO SUSPEND, CEASES OR THREATENS TO CEASE TO CARRY ON ALL OR SUBSTANTIALLY THE WHOLE OF ITS BUSINESS;

9.3.11 THE CUSTOMER’S FINANCIAL POSITION DETERIORATES TO SUCH AN EXTENT THAT IN OVEROSE’S OPINION THE CUSTOMER’S CAPABILITY TO FULFIL ITS OBLIGATIONS UNDER THE CONTRACT HAS BEEN PLACED IN JEOPARDY; AND

9.3.12 (BEING AN INDIVIDUAL) THE CUSTOMER DIES OR, BY REASON OF ILLNESS OR INCAPACITY (WHETHER MENTAL OR PHYSICAL), IS INCAPABLE OF MANAGING HIS OR HER OWN AFFAIRS O BECOMES A PATIENT UNDER ANY MENTAL HEALTH LEGISLATION.

9.4 TERMINATION OF THE CONTRACT, HOWEVER ARISING, SHALL NOT AFFECT ANY OF THE PARTIES’ RIGHTS AND REMEDIES THAT HAVE ACCRUED AS AT TERMINATION. CONDITIONS WHICH EXPRESSLY OR BY IMPLICATION SURVIVE TERMINATION OF THE CONTRACT SHALL CONTINUE IN FULL FORCE AND EFFECT.

9.5 ON TERMINATION OF THE CONTRACT FOR ANY REASON THE CUSTOMER SHALL IMMEDIATELY PAY TO OVEROSE ALL OF OVEROSE’S OUTSTANDING UNPAID INVOICES AND INTEREST.

10. LIMITATION OF LIABILITY

10.1 OVEROSE’S LIABILITY UNDER THE CONTRACT SHALL BE LIMITED AS SET OUT IN THIS CONDITION 10.

10.2 NOTHING IN THESE CONDITIONS SHALL LIMIT OR EXCLUDE OVEROSE’S LIABILITY FOR:

10.2.1 DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, OR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS (AS APPLICABLE);

10.2.2 FRAUD OR FRAUDULENT MISREPRESENTATION;

10.2.3 BREACH OF THE TERMS;

10.2.4 DEFECTIVE PRODUCTS; OR

10.2.5 ANY MATTER IN RESPECT OF WHICH IT WOULD BE UNLAWFUL FOR OVEROSE TO EXCLUDE OR RESTRICT LIABILITY.

10.3 SUBJECT TO CONDITION 10.2:

10.3.1 OVEROSE SHALL UNDER NO CIRCUMSTANCES WHATEVER BE LIABLE TO THE CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, FOR ANY LOSS OF PROFIT, OR ANY INDIRECT OR CONSEQUENTIAL LOSS ARISING UNDER OR IN CONNECTION WITH THE CONTRACT; AND

10.3.2 OVEROSE’S TOTAL LIABILITY TO THE CUSTOMER IN RESPECT OF ALL OTHER LOSSES ARISING UNDER OR IN CONNECTION WITH THE CONTRACT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, SHALL IN NO CIRCUMSTANCES EXCEED THE LOWER OF €1,000 OR THE CONTRACT PRICE OF THE GOODS SET OUT IN THE RELEVANT ORDER.

11. FORCE MAJEURE

11.1 NEITHER PARTY SHALL BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING ITS OBLIGATIONS UNDER THE CONTRACT TO THE EXTENT THAT SUCH FAILURE OR DELAY IS CAUSED BY A FORCE MAJEURE EVENT.

11.2 A FORCE MAJEURE EVENT MEANS ANY EVENT BEYOND A PARTY’S REASONABLE CONTROL, WHICH BY ITS NATURE COULD NOT HAVE BEEN FORESEEN, OR, IF IT COULD HAVE BEEN FORESEEN, WAS UNAVOIDABLE, INCLUDING STRIKES, LOCK-OUTS OR OTHER INDUSTRIAL DISPUTES (WHETHER INVOLVING ITS OWN WORKFORCE OR A THIRD PARTY’S), FAILURE OF ENERGY SOURCES OR TRANSPORT NETWORK, ACTS OF GOD, WAR, TERRORISM, RIOT, CIVIL COMMOTION, INTERFERENCE BY CIVIL OR MILITARY AUTHORITIES, NATIONAL OR INTERNATIONAL CALAMITY, ARMED CONFLICT, MALICIOUS DAMAGE, BREAKDOWN OF PLANT OR MACHINERY, NUCLEAR, CHEMICAL OR BIOLOGICAL CONTAMINATION, SONIC BOOM, EXPLOSIONS, COLLAPSE OF BUILDING STRUCTURES, FIRES, FLOODS, STORMS, EARTHQUAKES, LOSS AT SEA, EPIDEMICS OR SIMILAR EVENTS, NATURAL DISASTERS OR EXTREME ADVERSE WEATHER CONDITIONS, OR DEFAULT OF SUPPLIERS OR SUBCONTRACTORS.

12. GENERAL

12.1 ASSIGNMENT AND SUBCONTRACTING

12.1.1 OVEROSE MAY AT ANY TIME ASSIGN, TRANSFER, CHARGE, SUBCONTRACT OR DEAL IN ANY OTHER MANNER WITH ALL OR ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THE CONTRACT.

12.1.2 THE CUSTOMER MAY NOT ASSIGN, TRANSFER, CHARGE, SUBCONTRACT OR DEAL IN ANY OTHER MANNER WITH ALL OR ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THE CONTRACT WITHOUT THE PRIOR WRITTEN CONSENT OF OVEROSE.

12.2 NOTICES

12.2.1 ANY NOTICE OR OTHER COMMUNICATION GIVEN TO A PARTY UNDER OR IN CONNECTION WITH THE CONTRACT SHALL BE IN WRITING, ADDRESSED TO THAT PARTY AT ITS REGISTERED OFFICE (IF IT IS A COMPANY) OR ITS PRINCIPAL PLACE OF BUSINESS (IN ANY OTHER CASE) OR SUCH OTHER ADDRESS AS THAT PARTY MAY HAVE SPECIFIED TO THE OTHER PARTY IN WRITING IN ACCORDANCE WITH THIS CONDITION 12.2.1, AND SHALL BE DELIVERED PERSONALLY, SENT BY PRE-PAID FIRST CLASS POST, RECORDED DELIVERY, COMMERCIAL COURIER, FAX OR E-MAIL.

12.2.2 A NOTICE OR OTHER COMMUNICATION SHALL BE DEEMED TO HAVE BEEN RECEIVED: IF DELIVERED PERSONALLY, WHEN LEFT AT THE ADDRESS REFERRED TO IN CONDITION 12.2.1; IF SENT BY PRE-PAID FIRST CLASS POST OR RECORDED DELIVERY, AT 9.00 AM ON THE SECOND BUSINESS DAY AFTER POSTING; IF DELIVERED BY COMMERCIAL COURIER, ON THE DATE AND AT THE TIME THAT THE COURIER’S DELIVERY RECEIPT IS SIGNED; OR, IF SENT BY FAX OR E-MAIL, ONE (1) BUSINESS DAY AFTER TRANSMISSION.

12.2.3 THE PROVISIONS OF THIS CONDITION 12.2 SHALL NOT APPLY TO THE SERVICE OF ANY PROCEEDINGS OR OTHER DOCUMENTS IN ANY LEGAL ACTION.

12.3 SEVERANCE

12.3.1 IF ANY COURT OR COMPETENT AUTHORITY FINDS THAT ANY PROVISION OF THE CONTRACT (OR PART OF ANY PROVISION) IS INVALID, ILLEGAL OR UNENFORCEABLE, THAT PROVISION OR PART-PROVISION SHALL, TO THE EXTENT REQUIRED, BE DEEMED TO BE DELETED, AND THE VALIDITY AND ENFORCEABILITY OF THE OTHER PROVISIONS OF THE CONTRACT SHALL NOT BE AFFECTED.

12.3.2 IF ANY INVALID, UNENFORCEABLE OR ILLEGAL PROVISION OF THE CONTRACT WOULD BE VALID, ENFORCEABLE AND LEGAL IF SOME PART OF IT WERE DELETED, THE PROVISION SHALL APPLY WITH THE MINIMUM MODIFICATION NECESSARY TO MAKE IT LEGAL, VALID AND ENFORCEABLE.

12.4 WAIVER

12.4.1 A WAIVER OF ANY RIGHT OR REMEDY UNDER THE CONTRACT IS ONLY EFFECTIVE IF GIVEN IN WRITING AND SHALL NOT BE DEEMED A WAIVER OF ANY SUBSEQUENT BREACH OR DEFAULT. NO FAILURE OR DELAY BY A PARTY TO EXERCISE ANY RIGHT OR REMEDY PROVIDED UNDER THE CONTRACT OR BY LAW SHALL CONSTITUTE A WAIVER OF THAT OR ANY OTHER RIGHT OR REMEDY, NOR SHALL IT PRECLUDE OR RESTRICT THE FURTHER EXERCISE OF THAT OR ANY OTHER RIGHT OR REMEDY. NO SINGLE OR PARTIAL EXERCISE OF SUCH RIGHT OR REMEDY SHALL PRECLUDE OR RESTRICT THE FURTHER EXERCISE OF THAT OR ANY OTHER RIGHT OR REMEDY.

12.5 THIRD PARTY RIGHTS

12.5.1 A PERSON WHO IS NOT A PARTY TO THE CONTRACT SHALL NOT HAVE ANY RIGHTS UNDER THE CONTRACT OR IN CONNECTION WITH IT.

12.6 VARIATION

12.6.1 EXCEPT AS SET OUT IN THESE CONDITIONS, ANY VARIATION TO THE CONTRACT, INCLUDING THE INTRODUCTION OF ANY ADDITIONAL TERMS AND CONDITIONS, SHALL ONLY BE BINDING WHEN AGREED BETWEEN THE PARTIES IN WRITING.

12.7 GOVERNING LAW AND JURISDICTION

12.7.1 THE CONTRACT, AND ANY DISPUTE OR CLAIM ARISING OUT OF OR IN CONNECTION WITH IT OR ITS SUBJECT MATTER OR FORMATION (INCLUDING NON-CONTRACTUAL DISPUTES OR CLAIMS), SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, FRENCH LAW, AND THE PARTIES IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF FRANCE.