TERMS OF SALE
The present general conditions of sale (here after referred to as the "General Conditions of Sale") regulate exclusively the commercial relations between the enterprise FACTEM (here after referred to as the "Company"), and its clients (here after referred to as the "Clients”).
They prevail over all other documents, contractual or not, issued by the Client.
All orders issued to the Company will be subject to these General Conditions of Sale.
Placing an order implies entire adherence by the Client to the present General Conditions.
The information listed in the catalogues, electronic specifications, notices and public documentation are only supplied as purely informative material and could be changed at any moment without notice.
The Company is only bound by correspondence by its representatives and employees when express written confirmation is given by it. All pricing offers are only valid in the time limit of, unless otherwise stated, thirty (30) days for the material of the catalogue and ninety (90) days for the developments and projects.
The provision to the Client by the Company of any information, advice, recommendation, technical study, or price offer is only information and does not engage the liability of the Company.
It is up to the Client to proceed, prior to his/her order, with a detailed analysis of the needs and objectives and, if the Client estimates that they lack the necessary competence to execute it on its own, to seek the services and advice of a qualified specialist of their choosing.
Depending on costs of the Company, service delivery will be billed to the Client, including but not limited to, training, technical assistance, assembly of equipment, hiring of equipment, warranties, handling charges, and research and project costs.
All changes in the legal or financial situation of the Client, including but not limited to, those corresponding to the events listed hereafter will require a written notice to the Company, for which the Company can, if they wish, cancel current orders, refuse orders, demand guarantees or modify the conditions of payment and the timeline of payment: safeguard procedure, judicial recovery, enter lease management, transfer of all or part of the business sale, exchange of shares of the Client’s company, company capital, merger, division, change of management, termination or reduced guarantee.
The order of the Client is considered definitively accepted by the Company after the Company receives the last prospective payment provided and in all cases can send a written confirmation to by the Company or by the shipping of the merchandise sought in the order.
An order cancelled in part or in full by the Client, without preexisting or written consent of the Company, will be billed to the Client.
An administrative cost, the rate of which will be communicated on request, will be applied monthly.
Our prices, in their informative role, do not include taxes and accessories bills such as: administrative costs, delivery costs, environmental contribution (notably the DEEE regulations put into place by the European directive 2012/19/CE).
The billing will be established the day of the delivery. Our tariffs are modifiable without notice and change with the tariffs of our suppliers, even during the course of executing and order to a delivery.
These variations will not justify the cancelling of the order by the Client.
The VAT is billed extra according to taxes.
IV. CONDITIONS OF PAYMENT
• Our invoices are payable in cash without reduction.
Where the Company agrees to for the billing to be regulated and issued by the customer, the payment must reach the payment processing centre of the Company ten days later, dating from the reception of the bill.
• The creation of commerce bills of whatever kind does not constitute waiver or or exemption instead of payment.
• Any forward payment request involves opening an account by the administrative services. The Company is free to refuse, reduce or terminate at any time without notice and without having to justify its decision.
• The order of non-stocked equipment is payable when placing the order unless written agreement stating the contrary.
• In any case the payment can be suspended or be made as the subject of compensation
• The Company reserves the right at any moment, even after partial shipment of an order, depending on the financial capacity of the client, to demand payment ahead of the order or to comply to commercial use.
V. LATE PAYMENTS AND DEFAULTS OF PAYMENTS
In the case of total or partial default of payment by the due date, the entire sum due by the Client for the order or other orders executed or in course of executing will become immediately due without prior notice and without formal notice by the resolution provided in the article XII below.
Otherwise, without prejudice of damages and interests, the Company reserves the right to demand payment from the Client, absence of total or partial payment of the bill will result in suspension by the Company any new delivery and the payment by the Client:
• Of a forfeited compensation of 40 euros by the unpaid bill, this amount is likely to be changed if Company justifies that the recovery charges are superior to the forfeited compensation charge
• Of a penal clause conforming to the articles 1226 and following of the Civil Code.
The amount of this compensation will be equal to the amount of 15% of the total amount billed and not paid for by the Client;
• Of late penalties calculated on the base of interest tax practised by the Central European Bank in its most recent operation of refinancing plus 10 percentage points, the interest rate applied being applied, for the first part of the year, on the 1st of January of the considered year and, for the second part, on the 1st of July of the considered year.
These penalties are applicable to the day after the due date of the bill and until the complete payment of the due sums.
VI. CONTESTING OF THE BILL
All dispute or claim concerning the billing addressed by the Company to the Client can only, in any case, be examined by the Company if it was made in writing in the 8 days following the reception of the billing that is being contested.
VII. DELIVERY - TRANSPORT
The delivery times are given in good faith as an indicative title and deviation from the timeline cannot in any case be the cause of compensation or cancellation of orders by the Client.
During the delivery, it is up to the Client to verify in the presence of the transporter the proper state of the delivered merchandise.
In the case of damage or missing parts or products, the Client should:
• Indicate any reservations in the transport documents that they are clear, precise, complete and pertain to the product and,
• Confirm these reservations to the transporter by registered letter with an acknowledgement of receipt in the three days following acceptance of merchandise and address a copy of the letter of reception by registered mail with acknowledgement of receipt to the Company.
In the case of deviation from this clause, the Client cannot claim compensation.
The Company reserves the ability to make partial deliveries accompanied by separate bills.
All partial deliveries should be considered as a separate contract.
The Client cannot, by consequence, prevail to wait on the balance of the ordered equipment to make payment for the delivered merchandise.
VIII. TRANSFER OF RISK
The merchandise is transported at the risk and perils of the Client who takes delivery under his/her responsibility, whatever the mode of transport or payment method.
It is up to the Client to verify upon reception the quantity, the quality, the weight, and the dimensions of the delivered merchandise and, in the case of damage, exercise recourses against the transporter following that which is indicated in the article VII.
In the case where the delivery was performed directly by the Company, the Client should show the damages or defects to the deliverer.
IX. RECOVERY - RECYCLING - DESTRUCTION
The merchandise and equipment sold are not returnable or exchangeable.
The only exception being with written and preexisting agreement with the Company, merchandise or equipment may be returned, on the condition that it is in perfect condition, in its original packaging, and has been delivered within less than fifteen (15) days.
All returns must be made, costs paid by the sender, with numeric indications and date of delivery and should be accompanied by a compensation request of the equivalent amount of the returned merchandise and equipment.
Accepted returns will lead exclusively to the issue of a corresponding total amount for the sold product, minus a portion for the cost incurred for receiving the product, in all cases equal to at least 10% of the billed value.
No return will be accepted for merchandise not stocked by the Company or products made by special requests of the Company from its suppliers.
The Company has taken measures to validate the information given by suppliers concerning the collection, removal, processing, and the conditioning of electric and electronic equipment, and the Company always ensures the traceability of the documents and insures the documents allow the respect of obligations by the manufacturers for the products, and to keep a hold of manuals of the electric and electronic equipment.
It will be up to the user to address the manufacturer and/or supplier of the components and/or products to confer over relative arrangements with respect to inherent obligations in the articles R 543-173 and following the environmental code, its changes and/or modifications, relative to the treatment of the waste of electric and electronic equipment, and assure the collection, removal, treatment and conditioning of professional waste.
X. AFTER-SALES SERVICE - REPAIRS
Any request for repair will be subject to a quotation established by the Company indicating the cost before tax and indicative duration for it to be performed.
The execution of a repair will be subject to a transfer of 30% of the total of the quotation, the remaining sum payable on delivery of the repaired merchandise.
XI. RETENTION OF PROPERTY CLAUSE
In agreement with the terms in article 2367 and following the Civil Code, goods sold remain the property of the Company until complete payment for it is received including surrounding services, delivery being the physical transportation of merchandise.
Do not constitute a payment in the meaning of the present clause.
Up to the completion date of the payment, delivered equipment will be kept in storage, with the Client ensuring this as well as keeping the equipment in such an arrangement that it can be distinguished from other equipment and its identification information is kept intact.
The client upholds the risk of damages that the equipment could be subject to in whatever form; it will be up to him/her to pay the same price in the case of disappearance in unforeseen circumstances or force majeure case, and notably in case of theft, fire, destruction, strike, lockout, flooding etc. The Client will not gain access to goods through whichever manner without prior and deliberate agreement with the Company.
In the absence of complete payment, the Client will absolve to return merchandise as soon as possible and take upon them any costs in returning them to perfect condition.
In any case where the Company would be led to enact the present clause, possible advance payments received will remain with the Company. Nevertheless, the Client can sell on and modify merchandise and equipment in the following conditions:
- The Client is authorised in the case of normal usage in their application to sell on the delivered merchandise and equipment, but they cannot pledge them nor transfer the ownership of the warranty.
They are furthermore non-transferable.
The Client is also authorised in the case of normal operation in their application to modify the delivered merchandise and equipment.
In case of modification, it is up to the Client to give ownership of the resultant product from the modification to the Company in order to ensure the rights of the vendor described above.
In case of input or any other intervention by a third party, the Client is required to inform the Company immediately.
- The authorisation of resale and of modification is automatically and immediately rescinded in the case of failed or late payment by the Client.
The present retention of ownership clause notwithstanding, the Client will uphold the risks involved with delivery, notably in case of loss, theft or destruction.
He/she will also uphold insurance costs.
In the case that the Client deviates from any one of their obligations, notably in case of total or partial default of payment by the due date, the Company reserves the right, without formal notice, to suspend the delivery of merchandise relating to orders carried out or in the process of being carried out, and/or to suspend the execution of its obligations, without compensation, and without affecting any other of the Company’s rights.
Additionally, if 48 hours after the first presentation of a formal order addressed by registered letter with acknowledgement of receipt, there is no agreement made, all agreements with the Client may be rightfully rescinded without compensation to the Client by the Company which might be requested by collecting the merchandise.
In all cases mentioned above, and from when the Company decides not to pursue a resolution agreement, all debt due to the Company becomes immediately payable and the it falls to the Client to return immediately any merchandise for which it remains unpaid.
XIII. MONITORING OF THE FINAL DESTINATION
Certain products and their components are subject to exportation restrictions.
For these products, it is up to the Client to obtain themselves the required authorisation, to prove, if applicable, their acquisition, to provide the Company with all the information on intermediaries and successive users of the products and to inform them of this obligation of information.
Customs and exportation charges and costs are entirely the responsibility of the Client.
The Client is responsible for all damages caused to the Company in the case of deviation from national and international regulations relative to the control of exportation and importation.
XIV. WARRANTIES - RESPONSIBILITY
Warranties on products sold by the Company are those given the manufacturers of said products
and no other.
The Company transfers to the Client the warranties of the manufacturer concerning the products delivered.
These warranties are valid on condition that merchandise is installed normally and correctly in respect of the recommendations from the manufacturer.
The warranty is invalid, for whatever reason, in the following situations:
- When the use of the product is subject to a modification or a exceptional setup, abnormal or not, unless this modification or exceptional setup has been expressly indicated in the order and has been accepted by the Company, then carried out under their consistent guidance;
- When the product concerned in the warranty has been disassembled, modified or repaired by a third-party;
- When the damage results in product wear incited by a lack of maintenance or lubrication, carelessness, negligence, inexperience or usage of the product in a way unintended or ill-advised by the Company, or within an inappropriate safety framework.
In the case in which the Company takes responsibility, notably in the case of a modification, an exceptional assembly or setup, this would be strictly limited, at the decision of the Company, to a reduction in cost equivalent to the price before tax, or to the free-of-charge replacement of components recognised to be defective; the cost of transport and labour as well as any other damage expenses facing the Client remain the responsibility of the Client.
To enact the warranty in the conditions defined by the manufacturer, the defective product must be accompanied by proof of purchase, and to perform this in the shortest possible time limit.
In any event, if the responsibility of the Company must be called upon as a result of products sold, whatever the cause or nature of the damage caused, this responsibility may not exceed the price, before tax, invoiced for the damaged merchandise, excluding any other compensation of whatever nature and notably excluding compensation of immaterial damages caused as a consequence, direct or indirect, because of a fault with the products.
XV. FORCE MAJEURE
Force majeure events are those of natural cause which are unforeseeable, insurmountable, and outside of those defined in case law, making impossible in any way the execution of the present agreement in anticipated conditions.
Strike by Company staff (including its subcontractors), lack of Company staff (including its subcontractors), notably road transport, breakdowns, temporary work stoppage by Company staff (including its subcontractors) constitute events of force majeure.
The Party affected by a case of force majeure must inform the other in writing as soon as possible and endeavour to put all means in place to reduce as much as possible resultant damages from the situation.
In the case of a force majeure event enduring more than 10 days, the Company retains the ability to terminate by any means the orders affected, respecting an advance warning of 5 working days.
XVI. PERSONAL DATA INFORMATION
The Client consents to the Company’s recording and processing of personal data in relation to commercial purposes, notably in the case of management, finance and recovery of the Client’s debt obligations.
These data are subject to sharing with any third party for the means of executing the contract(s) concerned.
In agreement with the terms of the modified Information Technology and Freedom Law no 78-17 of 6 January 1978, the Client has the right to access, change and delete personal data as well as the right to refuse to their processing through the Company.
The Client recognises the confidential nature of the information or documents of any form to which it has or will have access during the commercial relation with the Company and commits itself and any of its subcontractors to take all precautions necessary to prevent their disclosure.
XVIII. APPLICABLE LAW AND JURISDICTION
The entirety of commercial relations between the Company and its Clients is subject to French law.
By express agreement, all disputes concerning the interpretation or the execution of the present document, even in the case of multiple defendants or enacting a warranty, are under the sole jurisdiction of the Commerce Court of the location of the headquarters of the company where it has jurisdiction. Payments made or accepted do not imply any renewal of or exceptions to this jurisdiction clause.