Article I – Scope
These general terms and conditions of sale (“GTCS”) apply to any sales made by TotalEnergies (“Seller”), unless otherwise agreed in writing or any special terms and conditions amending or completing them apply. These GTCS shall fully and automatically prevail over all other provisions stipulated or referred to in any client’s documents, except with the express written consent of the Seller. For the purposes hereof, each party shall be identified individually as a Party (“Party”) or together as Parties (“Parties”).
The waiver by either Party of a breach of any provisions of the GTCS shall not be construed as a waiver of any further breach of the same or other provisions.
Article II – Prices
The products or services are invoiced at the price, stated excluding VAT, agreed at the time of the order duly accepted by the Seller (“Order”).
For as long as the Seller has not accepted the Order, the Seller reserves the right to modify and amend, without prior notice, its products or services, their prices and their availability.
Any price change resulting from legal or statutory amendments (taxes of any nature, change in transport prices, etc.) is immediately applied on the invoice if occurring prior to delivery of the products or services to the client.
Article III – Orders - Sales
By placing an Order under these GTCS, the client fully and unreservedly accepts them. The Seller reserves the right not to accept an Order for a product if the quantity or the volume mentioned in such Order exceeds 120% of the monthly average quantity or volume of Orders for that product. The monthly average of the quantity or volume of Orders for the product shall be determined on the basis of Orders placed and actually delivered over a twelve-month period preceding the date of the Order. The Seller may modify these GTC at any time. They shall be applicable
to the Order provided that they are notified to the customer one (1) month prior to their application. As soon as the Seller accepts the Order, that Order shall commit the client to take possession of the products for the agreed quantities and within the agreed time. If the client fails to do so, the Seller reserves the right to invoice to the client costs for the storage or the return of the products for a minimal amount of 250 Euros, excluding VAT, per Order. The client accepts the dematerialised transmission and signature of any document and acknowledges their enforceability in case of disputes.
Article IV – Quantity – Transfer of risks - Delivery of the products
The quantity measured on loading subject to metrological control shall be binding evidence of the delivered quantity. The transfer of risks from the Seller to the client shall take place at the point of delivery and in accordance with the Incoterm, as defined in special terms and conditions. Otherwise, products shall be dispatched at the client’s costs and risks. In any event, the transfer of risks shall take place at the end of the loading or unloading, at the place of delivery. The unloading of the products shall take place under the sole responsibility of the client, even if the carrier participates in the operation. For the acceptance of the products, the client must proceed with all necessary verifications. In particular, the client must verify whether its available storage volume is sufficient to receive the ordered quantities. In the event of loss or damage or shortfall in product quantities, it shall be for the client to make all claims against the carrier within a maximum period of three (3) days, in accordance with Article L.133-3 of the French Commercial Code. The delivery times indicated at the time of the Order are only indicative: delays in delivery may not give rise to any compensation of any kind whatsoever.
Article V – Payment
Unless otherwise agreed by the Seller when the Order is placed, the products shall be payable immediately, without discount. The Seller does not accept the payment by check, except with Seller’s prior written approval. The Seller reserves the right, at any time, to fix to the client a cap of outstanding, to modify that cap, and/or to make the supply of the products subject to compliance with this cap and/or subject to the presentation of a guarantee, taking into account the payment term agreed by the Seller for the client. If payments by SEPA Direct Debit apply under the applicable specific conditions, information related to each SEPA Direct Debit are set forth in the provisions provided by the client to authorize SEPA Direct Debits. Each invoice received by postal mail or by any electronic means will advise the client that the payment will be made by SEPA Direct Debit on the due date specified on the invoice. That invoice will be deemed as the pre-notification of such SEPA Direct Debit. As an exception to the SEPA Direct Debit payments’ rules, that pre-notification invoice may be sent to client within fourteen (14) calendar days prior to the due date of payment.
Any payment not made on due date shall give rise to the following, cumulatively:
- the right to suspend or cancel any delivery under any Order whatsoever;
- all sums due, even if not yet payable, shall become immediately payable without prior formality;
- for all sums not paid on due date and without any reminder being required, late payment interest shall apply, due from the day following the payment date appearing on the invoice, calculated at a rate equal the interest rate applied by the European Central Bank for its most recent refinancing operation incremented by 10 %;
- for professionals, the invoicing of the fixed indemnity for recovery costs of an amount of 40 Euros as provided for by Article D. 441-5 of the French Commercial Code. The Seller reserves the right to claim complementary compensation for all other costs caused by the late payment over and above said fixed amount, including at the time of transmission of the file to the Seller’s litigation and/or collection departments. Moreover, in case of transmission of the file to the Seller’s litigation and/or collection departments, the Seller will be entitled to claim a penalty calculated at 5% of the due amount (including VAT), with a minimum of 100 euros.
Any payment of a part of any Seller’s invoice, in any manner whatsoever, including any credit amount arising from the recovery of products, shall be deemed as a payment of that part of the debt which does not benefit from a lien, such as arising under Article 380 of the French Customs Code. The same shall apply for any credit amount arising from the recovery of products.
Article VI – Set-off
The Seller shall have the right at its sole discretion to offset amounts owed by client against amounts payable by Seller under the Order.
Article VII – Reservation of title
The transfer of title of the sold products shall be subject to the full payment of the price, including the principal and all ancillary costs, regardless of the payment terms and conditions applied. The client undertakes to enable at all times the identification of the products with a view to any claim of ownership of them, it being agreed that products in stock shall be deemed to correspond, in whole or in part, to the unpaid products. In the event of failure to pay and following the mere observation of such failure, the Seller reserves the right to proceed immediately with the recovery of the products. Re-pumping and return transport costs shall be borne by the client.
Article VIII – Liability
Any loss or damage affecting the products or any property of the Seller or of a third party, arising before, during or after the loading or unloading operations, caused by the client or any person acting under the client, shall be borne by the client. The products delivered by the Seller are compliant with the regulations in force, the client being solely responsible for their receipt, storage and use under conditions compliant with the applicable regulations. Unless expressly stipulated in special conditions, the Seller is only liable for direct material damage, to the exclusion of any indirect or immaterial damage. Indirect or immaterial damages include, but are not limited to, any loss of profits (direct or indirect), loss caused by business interruption, loss of opportunity, profit, know-how, loss of customers or reputation, whether or not caused by a breach or negligence.
In any event, the Seller's liability shall be limited to the amount of the Order.
No claim, demand or dispute concerning the conformity of the delivered products to the Seller’s specifications or in relation to the references and/or quantities of products specified in the Order shall be accepted after a period of thirty (30) days following delivery.
Article IX – Material Safety Data Sheet (MSDS) - REACH Regulation
The MSDS are transmitted to the client and may be consulted over the Internet ( https://ms-sds.totalenergies.com/totalpullwebsite/).
The delivered products subject to REACH Regulation EC No. 1907/2006 of 18 December 2006 comply with the REACH Regulation in force on the date of their delivery, for those uses and under those conditions stated in the MSDS and/or in the Seller’s specifications. The Seller makes no representation or warranty and shall bear no liability for any other use, even if notified by the client, or any use not provided for in the MSDS and/or in the Seller’s specifications, or which does not comply with the provisions of the MSDS. In addition, no indemnity may be charged to the Seller due to the implementation of the REACH Regulation, in particular in the event of late delivery or interruption in supplies of products.
Article X – Force majeure
Neither Party shall be liable towards the other Party for a breach, delay or non-performance of all or part of an Order if that failure is caused by or due to an event which is reasonably beyond the control of the failing Party which could not reasonably be foreseen at the time of conclusion of the Order and the effects of which cannot be avoided by appropriate measures. Force Majeure shall include the following events, regardless of the circumstances in which they occurred: (i) fires, accidents, explosions, utility interruptions, floods, hurricanes, earthquakes, all types of storms or similar disasters, acts of God, riots, civil disturbances, vandalism, war, insurrection, or any other event, resulting in partial or total shutdown of production sites or product production units, distribution and delivery networks, logistics and various operations; (ii) strikes; (iii) compliance with a request or order from a person purporting to act on behalf of a government, governmental department or agency (including but not limited to environmental, worker health and safety, etc. agencies); or (iv) shortage of supplies or services. ); or (iv) shortage of raw material, transportation capacity, production capacity, etc. or a shortage of product from Seller's supplier. Any delayed payment or failure to pay on the due date shall in no event be construed as an event of Force Majeure. If an event that is reasonably beyond the control of the Seller is that there is a restriction on (i) supplies of raw materials or products from the Seller’s suppliers or (ii) the transport of raw materials or products, preventing the Seller from delivering the products in accordance with the Order, the Seller is entitled to suspend all or part of the Order for the time that it is so prevented. If the affected Party is unable to perform its obligations for a period in excess of thirty (30) days, the other Party may terminate the Order by giving written notice to the affected Party fifteen (15) days after such notice, in which case neither Party shall be liable to the other, except for liabilities which commenced prior to such termination and which survive the date of termination of the Order.
Article XI – Hardship
If, as a result of the occurrence of external economic circumstances not reasonably foreseeable at the time of the Order, the economic balance of either Party's performance is altered in such a way as to render performance of the Order excessively onerous for such Party, Seller and customer shall meet to mutually determine the adjustments necessary to restore the original balance, provided that the requesting Party provides all evidence to support its allegations.
If the Parties fail to reach agreement within fifteen (15) days of the request, the requesting Party may terminate the Order by written notification to the other Party fifteen (15) days after the end of the period dedicated to reach an agreement. No compensation, in particular financial, can be due by the Party who terminate the Order to the other Party. As a result of the foregoing provisions, the Parties expressly waive the application of Article 1195 of the French Civil Code.
Article XII - Economic sanctions
For the purposes of the Order, the term “Economic Sanctions Regulations” means any applicable economic, financial, trade or export controls laws, regulations, embargoes or other restrictive measures enacted, administered, implemented, and/or enforced by any government authority with jurisdiction over the Parties and the products or services.
XII.I. Each Party shall perform the Order in compliance with the Economic Sanctions Regulations. If either Party is unable to perform the Order due to a conflict of law, the provisions specified under XII.V shall apply.
XII.II. The client, undertakes not to, directly or indirectly, distribute or resell the products purchased from Seller in violation of Economic Sanctions Regulations. Moreover, the client undertakes and warrants that it will not, directly or indirectly, distribute, sell, supply, export, re-export or otherwise transfer the Product(s) purchased from Seller in Russia and/or for use in Russia.
XII.III. The client shall implement procedures to comply with Economic Sanctions Regulations and detect possible non-compliant activities of third parties, including potential resellers, and apply all such procedures to transactions involving the products or services purchased from Seller.
XII.IV. Throughout the performance of the Order, the client undertakes to inform the Seller forthwith by written notice any information likely to impact the declaration or commitments covered by this Article, including regarding the activities of third parties that may frustrate the same sections. The client shall make available to the Seller information relating to compliance with its obligations under sections XII.II, XII.III, XII.IV and XII.V within two weeks from the Seller's written request for such information.
In case of breach of the abovementioned commitments, the Seller will be able to (i) suspend the performance of the Order or (ii) terminate the Order. The client cannot claim any compensation rights provided for by the present Order.
XII.V. Neither Party shall be obliged to perform any obligation under this Order if this would be not compliant with, in violation of, inconsistent with, create a conflict with, or expose a Party to punitive measures under the Economic Sanctions Regulations. In this event, such Party (the “Affected Party”) shall give written notice to the other Party of its inability to perform forthwith. By doing so, the Affected Party may either (i) suspend the performance of the affected obligations under this Order as long as its inability to perform persists, or (ii) terminate the Order without possibility for the other Party to claim any compensation rights provided for by the present Order.
Article XIII - Preventing corruption
In recognition of the anti-corruption laws applicable to the activities under the Order, any other anti-corruption laws otherwise applicable to the Parties, and consistent with the Parties’ anti-corruption compliance policies and procedures.
XII.1 – The client, in respect of the Order and the matters that are subject to the present Order, warrants that, neither it, nor, to its knowledge, anyone acting on its behalf, has made or offered nor will make or offer any payment, gift, or promise or give any advantage, whether directly or through an intermediary, to or for the use of any person, whether such person is a public official or not (Beneficiary), where such payment, gift, promise or advantage would be for the purposes of: (i) influencing any act or decision of such Beneficiary; (ii) inducing such Beneficiary to do or omit to do any act in violation of his or her lawful duties; (iii) securing any improper advantage; or (iv) inducing such Beneficiary to use his or her influence to affect any act or decision of any department, agency or instrumentality of any public authority or public enterprise.
XII.2 – The client shall implement and maintain adequate internal controls to ensure that all payments made in performance of the Order are authorized and in compliance with the Order.
XII.3 – In the event that a public official (or a close personal acquaintance of such public official, close personal acquaintance) owns or possesses, directly or indirectly, shares or any other beneficial interest in client, or is a director, officer or agent of the client, the client agrees to notify the Seller in writing and to take appropriate steps to ensure that such public official (or close personal acquaintance) complies with the laws of France, including with respect to conflicts of interest and anti-corruption compliance, as described in Article XII.1 above.
Article XIV – Data protection
The personal data that may be collected in the context of the Order shall be processed by TotalEnergies Lubrifiants (registered office located at 562 avenue du Parc de l'Ile, 92029 Nanterre Cedex). The purpose of this processing is commercial management as well as the follow-up of the relationship with the customer (on the basis of the execution of the GTC) and B2B commercial prospecting in accordance with the legitimate interest of the person responsible. Personal data may only be transmitted to service providers or companies of the TotalEnergies company, in particular for prospecting purposes. Personal data will be kept for the time necessary for the above-mentioned purposes and in accordance with the legal obligations of the person responsible. In accordance with and within the limits of the regulations relating to the protection of personal data, all individuals have the right to access, rectify, delete and port their data, to limit the processing, to object on legitimate grounds and to define directives concerning the fate of their personal data after their death. These rights must be exercised by contacting TotalEnergies Lubrifiants at one of the following addresses [email protected] or TotalEnergies Lubrifiants Secrétariat Général, 562 avenue du Parc de l'Ile, 92029 Nanterre Cedex. The owner of the personal data may also lodge a complaint with the CNIL if necessary.
TotalEnergies Lubrifiants will only transfer personal data outside the European Economic Area when adequate measures are implemented as provided for in Article 44 et seq. of Regulation (EU) 2016/679.
Article XV– Governing law - Jurisdiction
French law shall alone govern relations between the Seller and the client, including the SEPA Direct Debit, with the exception of the conflict of laws rules. Any dispute arising between the client and the Seller shall be within the exclusive jurisdiction of the courts of Nanterre (France), apart from the sale to consumers, for whom any dispute shall be within the jurisdiction of its domiciliation. All consumers have the right to turn to a mediator (free of charge for the consumer) in aim to solve any dispute arising with the Seller (according to l612-2 of the french code de la consommation), thanks to an amicable process through the cmap (www.cmap.fr / [email protected] or cmap médiation consommation, 39, avenue f.d. Roosevelt, 75008 paris). The consumers or professional consumers being a «micro-entreprise » ('article 51 of the french law n° 2008-776 dated 4 august 2008) can also complimentarily seize the médiateur national de l'energie for disputes arising from sale of electricity, gas, lpg, domestic fuel or wood (www.energiemediateur.fr or médiateur national de l’énergie libre réponse n°59252 – 75443 paris cedex 09). Prior to any mediation process, the client will have to justify having tried to solve the dispute directly with the consumer service of the Seller and not having received satisfactory response.