TERMS AND CONDITIONS OF SALE AND DELIVERY (Applicable from 01/05/2020)
1. Enforceability of the general Terms and Conditions of Sale – conclusion of the contract.
The purpose of the present general terms and conditions of sale (hereafter referred to as the General Terms and Conditions of Sale) is to regulate the relations between ECOSY BOATING (hereafter referred to as “the Seller”) and the customer (hereafter referred to as “the Buyer”). Any sale of products marketed by the Seller to its private or professional customers (“the Buyer”) is subject to the General Terms and Conditions of Sale in force at the time the order is placed. The act of the Buyer placing an order with the Seller implies, as an essential and determining condition, the complete, express and unreserved acceptance of the Buyer of these General Terms and Conditions of Sale, with the exclusion of all other documents. No particular condition may, unless formally and in writing accepted by the Seller, prevail over the General Terms and Conditions of Sale.In particular, the General Terms and Conditions of Sale shall prevail over any clause to the contrary that may appear on the Buyer’s documents or correspondence.
If the Buyer renounces his order or refuses to take delivery, the contract shall be automatically terminated and the deposits and transactions paid shall be retained by way of compensation, without prejudice to any other damages.
2.Products – orders
2.1. The Products
The products offered for sale by the Seller are those available in its catalogue at the time of the placing of the order by the Buyer (the Products). It is recalled that the information appearing on the documents that may accompany the proposed Products is merely informative and non-contractual.
2.2. Product Orders
Orders for Products from the Seller shall be placed by any written means by the Buyer. Any order received by the Seller shall only become definitive following express written acceptance of the order by the Seller by any means and, after the Seller has received payment of deposit for the order. The Seller reserves the right not to accept an order in the event of an alteration in the Buyer’s circumstance, in particular financial, or due to payment or transactional incidents. In any event, acceptance by the Seller, even in writing, shall remain subject to the condition that, until delivery to the Buyer’s premises of all or part of the order, no financial risk or any other element likely to jeopardize the order shall have arisen.
The Products are sold from the Seller’s logistical platform and travel at the Buyer’s expense, risk and peril.
3.1. Delivery times for Products
Deliveries are made according to availability and in the order in which orders are received. The Seller is entitled to make deliveries in one or more installments. Delivery times shall be calculated from the date of the Seller’s order confirmation and shall depend on the Seller’s supply possibilities. These delivery times are only given as an indication and any delays in delivery and/or partial deliveries may not give rise to penalties, compensation, damages, deductions, refusal of Products or cancellation of orders in progress. Any modification of an order related to a complementary request by the Buyer, if necessary with the Seller’s authorization, shall automatically extend the delivery period provided for in accordance with the terms and conditions communicated by the Seller to the Buyer. The Buyer shall not be entitled to claim damages as a result. The Seller shall be released from its obligations in the event of any Major Incident as defined in Article 8 below that prevents or delays the manufacture and/or delivery of the Products, without indemnity or damages. The following events shall have the same consequences as in the case of a Major Incident even if they do not meet the legal and jurisprudential conditions, releasing the Seller from its obligation to deliver:
Events occurring at the Seller and/or its subcontractors, such as lockout, riot and act of terrorism, lightning and/or electrical surges,
Fire, strikes, epidemics, embargo affecting the Seller’s supply, accidents, particularly with tools, interruption or delay in transport, impossibility of being supplied, shortage of raw materials.
The Seller will keep the Buyer informed of the possible occurrence of the cases and events listed above. In any event, delivery on time can only take place if the Buyer is up to date with its obligations towards the Seller, whatever the cause.
The Products are delivered, unless expressly stipulated on the order form, when they are made available to the Seller’s logistics platform. The transfer of risks relating to the Products is transferred at the time of collection of the Products by the Buyer. In this case, delivery shall be deemed to have been made by simple notice of availibility of the Products by the Seller to the Buyer by any means. If the Buyer does not collect the Products from the Seller’s premises within two (2) months of the Seller’s notification of availability or refuses to accept them, the delivery period having expired, the Seller shall be entitled to place the Products in storage at the Buyer’s expense and to claim reimbursement of the transport and storage costs from the Buyer. The retention of title clause provided for below does not affect the transfer of risks of the Products to the Buyer.
3.3. Shipping conditions
Where the Parties have expressly agreed that the Seller shall dispatch the Products, the Seller shall be responsible for organising transport only. In any event in this case, the Products travel at the Buyer’s risk and expense, regardless of the method of shipment.
3.4. Reservations to the carrier
The Buyer must upon receipt formulate, if necessary, all reservations useful to the protection of his rights with the carrier. In the event of damage, delay, missing items, caused by the transport of the Products, and whatever the place of delivery, it is up to the Buyer to:
Record the reservations with the carrier on the receipt document that he must sign and date.
Confirm the claim by registered letter with acknowledgement of receipt within 48 working hours following delivery of the Products to the carrier and send a copy to the Seller; failure by the Buyer to notify the carrier of the reservations within the above time limit shall extinguish any recourse by the Buyer against the carrier and the Seller, the Products then being deemed to have been accepted at delivered by the Buyer.
Keep the Products concerned at the disposal of the carrier or the expert of his insurance company after the date of dispatch of the registered letter. All damaged Products that are reimbursed to the Buyer by the carrier shall become the property of the carrier.
Return the Products to the Seller after having obtained the latter’s prior written agreement.
4. Non-compliance with the order – Apparent defect – Return of Products
Any possible claim relating to an apparent defect or non-conformity of the Product in relation to the Buyer’s order accepted by the Seller, other than that relating to a transport problem must be formulated in writing by registered letter requesting acknowledgement of receipt and sent to the Seller within thirty (30) calendar days following the provision or delivery of the product by the Seller in order to be admissible. After this period, no claim relating to apparent defects or the conformity of the Products to the order shall be taken into account by the Seller. The Buyer’s unreserved acceptance of the Products or the reservations made after the complaint period provided for in this article shall therefore cover any apparent defect and/or non-conformity with the order.
4.2. Return of Products
Returns of Products are made on an exceptional basis and under the conditions hereafter and after agreement of the Seller. Whatever its origin, the complaint must define precisely and in writing the apparent defects or non-conformities noted in relation to the order. The Buyer must also provide any justification as to the reality of the non-conformities observed. The costs and risks of the return are always borne by the Buyer. In the event of an apparent defect or non-conformity of the delivered Products duly noted by the Seller under the conditions provided for in the previous article, the Buyer may obtain free replacement or reimbursement of the Products, at the Seller’s discretion, to the exclusion of any indemnity or damages.
The Seller guarantees the conformity of the Products to the specifications appearing in the order and to the applicable French and European legal and regulatory provisions in force at the date of the order. The Seller’s obligation under the warranty of the Products shall be limited to the repair or replacement of defective parts, at the Seller’s option, for any defect that appears during the twelve (12) months from the date of delivery. The warranty for repaired or replaced parts shall in any event expire twenty-four (24) months after the first delivery of the original parts. However, the warranty for replacement parts supplied to the Buyer shall in any event be limited to twelve (12) months from the date of delivery. Parts replaced during the warranty period shall become the property of Seller.The warranty is subject to the Buyer notifying the Seller within forty-eight (48) business hours of the occurrence of a defect and the Buyer giving the Seller every reasonable opportunity to examine the defect. This warranty is excluded in the following cases:
Modifications or interventions by the Buyer or third parties on the Products, under conditions not expressly approved by the Seller, defects or damage caused by fault or negligence of the Buyer or users
Non-compliance with Seller’s instructions
Lack of monitoring or maintenance, routine maintenance requirements and replacement of parts due to the normal wear and tear of the equipment
Defects in the Buyer’s equipment not forming part of the order. The warranty is strictly limited to the replacement of parts recognized as defective by the Seller. Likewise, all damages resulting from Major Incident (force majeure), as well as damages due to accidents, negligence and uses for which the Products are not intended are excluded from the warranty. The Seller does not provide any guarantee of destination, the Buyer being solely responsible for the use it makes of the Products.
The prices of the Products are set by the Seller. The Products are sold at the price in force on the day of the order unless otherwise agreed. The prices are established in euros, excluding taxes, departure, packaged Products, uninsured. Any tax, duty or other service to be paid in application of the laws and regulations of France, foreign countries or those of a transit country are the responsibility of the Buyer. The prices negotiated between the Buyer and the Seller shall be valid for a period of three months from the date of the order. The Seller reserves the right to modify its prices at any time. Once the order has been accepted, the prices are fixed; however, in the event of a change in circumstances unforeseeable at the time of acceptance of the order, in accordance with the provisions of Article 1195 of the Civil Code, the Party that has not agreed to assume an excessively onerous performance risk may request a renegotiation of the contract from its co-contracting party.
7. Terms of payment
Invoices are payable to the Seller’s registered office upon receipt. Non-payment of an invoice on its due date shall result in the forfeiture of the terms for the totality of our claims, and may lead to the cancellation of the sale. When we waive the right to cancel the sale, the non-payment, even partial, on the due date, and without the need for formal notice, shall automatically lead to the payment of interest from the due date initially set until full payment, at the legal interest rate plus 5 points. In addition, failure to pay shall automatically and without notice of default shall result in the payment of a lump-sum indemnity equal to 15% of the sums due (principal and interest) as recovery costs. Collection costs and litigation fees shall be borne by the debtor. In the case of an order relating to several deliveries, the non-delivery or delay of a delivery cannot delay the payment of the part of the order already delivered. When the credit of the Buyer deteriorates, we reserve the right, even after partial shipment of an order, to require the Buyer to provide such guarantees as we deem appropriate for the proper fulfilment of the commitments. Refusal to do so gives us the right to cancel all or part of the order. No discount is applied for early payment. The Buyer shall pay a deposit of ten (10) per cent at the time of order, a second payment of fifty (50) per cent at the start of production (according to the industrial schedule) and the balance of fourty (40) per cent when the goods are made available. Any complaints concerning the Products shall in no way exempt the Buyer from paying the price on the due date.
8. Force majeure/Major Incident
If the performance of a contractual obligation is prevented, restricted or delayed by an event of Major Incident, the Party prevented or delayed shall be exonerated from any liability due to the prevention, restriction or delay concerned and the time limits for performance shall be extended accordingly. An event of Major Incident is understood to mean any event preventing the total or partial execution of the order, which could not be overcome by reasonable diligence on the part of the Party concerned, its employees, subcontractors and suppliers. The following events shall be considered as Major Incidents without this list being exhaustive: natural disasters, social conflicts, unforeseeable shortage or delay in the supply of raw materials or capital goods, fires, explosions, accidents or breakdowns of essential machinery or equipment, accidents involving tools or equipment or scrapping of important parts (e.g. forged or cast parts), action or failure of the Services or Public Authorities, acts of war, sabotage, embargoes, various disturbances to public order, interruptions or delays in transport. The Party availing of the claim of the event of Major Incident must notify the other Party in writing within a maximum period of seven (7) days of the occurrence of the event. If the execution of an order is delayed for more than three (3) months due to one of the aforementioned causes, the Parties shall meet to examine by mutual agreement the terms and conditions for the continuation of the order. In the absence of agreement between the Parties, each Party may notify the other Party in writing of the termination of the order.
In the event of a change in the Buyer’s situation, for any reason whatsoever, in particular financial, or an incident or delay in payment, the Seller reserves the right, even after partial execution of an order, to modify the payment deadlines granted or to require the provision of security, including for orders in progress, without prejudice to the provisions relating to the retention of title clause and late payment.
10. Retention of title
The transfer of ownership of the products delivered by the Seller will only be made to the Buyer on the date of the final receipt by the Seller of the full price in principal, interest and accessories under the conditions provided for in Articles 2367 et seq. of the Civil Code. This reservation of ownership is expressly accepted by the Buyer and will be fully effective including in the event of receivership or judicial liquidation. The delivery of bills of exchange or other securities creating an obligation to pay does not constitute a payment within the meaning of this provision. Except in the event of liability, the Buyer must immediately inform the Seller of any seizure, for the benefit of a third party, of the Products delivered subject to retention of title, or of any fact depriving the Buyer of the disposal of the Products in their entirety (theft, damage, intervention of a third party, etc…). The repossession of the Products does not amount to the termination of the sales contract. The sums already paid by the Buyer will remain acquired as first damages and subject to all others.
10.2. Implementation of the Retention of Title clause
If the Buyer, although he has not yet been the owner, resells the products to a Third Party, the Buyer remains liable to pay the full price. In the event of resale by the Buyer of the products delivered, the Buyer undertakes, at the Seller’s first request, to assign to the latter all or part of the claims acquired against the sub-buyers, up to the amount of the sums due. In accordance with the law, this Retention of Title clause will take effect by operation of law, without the need for any formal notice or formality. These provisions do not prevent the transfer to the Buyer, upon delivery of the Products, of the risks of loss and deterioration of the Products sold, as well as any damage they may cause.
11. Intellectual and industrial property
Intellectual, industrial or artistic property rights, such as patents, trademarks, models, know-how and any related or equivalent rights or elements attached to the Products remain the property of the Seller or its suppliers. The Seller guarantees the Buyer against any claim by third parties claiming an industrial and/or intellectual property right or based on a claim of unfair competition or parasitism, concerning the Products manufactured by the Seller. This guarantee is granted on condition that the Buyer having received such a claim has notified the Seller promptly in writing, has given the Seller all useful information at its disposal and has left it in charge of any proceedings or negotiations. Upon receipt of such a claim, the Seller shall at its own expense and at its sole option either modify the item so that it no longer infringes, if such modification is reasonably possible, or provide the Buyer with another item offering characteristics at least equivalent to those of the infringing item, or reimburse the Buyer the manufacturing price of the infringing item. In the event that an item manufactured by the Seller is found by a final court decision to infringe a property right belonging to a third party, the Seller shall pay the damages to which the Buyer is liable, provided that the Buyer has met the above-mentioned obligations. However, the Seller shall be free of any obligation towards the Buyer if the infringement originates from the use of the Product under conditions other than those specified by the Seller. Products manufactured by third parties and resold by the Seller are guaranteed under the conditions defined by these third parties.
The Seller is liable under the conditions of the Civil Code for direct damage caused by his own fault. If it is established, the Seller’s liability shall not exceed, for any reason whatsoever, the amount paid by the Buyer for the order in question, excluding tax.
13. Protection of personal data
The personal data collected during the order are subject to processing for which the Seller is responsible. They are collected for the sole purpose of executing the order. They will be kept for ten (10) years. In accordance with regulations, the Buyer has a right of access, rectification, opposition, limitation of processing, deletion and portability of his data which may be exercised by e-mail or by post at the Seller’s registered office, specifying his full name, address and attaching a photocopy of identification . In the event of any difficulty in connection with the management of his personal data, the Buyer may address a complaint to the Seller’s personal data protection officer or to the CNIL or any other competent authority.
14. Jurisdiction – Applicable law
Commercial relations with the Buyer are exclusively governed by French law, whatever the nationality of the Buyer and the place of delivery, to the express exclusion of the International Convention on the Sale of Goods. They agree to meet to examine the implications and consequences of any legislative or regulatory changes that may occur during the execution of an order. In the event of a dispute between the Parties concerning the validity, interpretation, execution or termination of the General Conditions and their consequences, the Parties undertake to cooperate diligently and in good faith with a view to finding an amicable solution. In the absence of an amicable solution, only the court in the jurisdiction of the Seller’s registered office shall have jurisdiction in the event of a dispute of any nature whatsoever arising from commercial relations between the Parties. This clause applies even in the event of summary proceedings, incidental claims or multiple defendants and whatever the method and terms of payment and delivery. Finally, this clause shall apply even in the event of a dispute falling under Article l.442-6 of the Commercial Code or any other similar provisions under which the competent court shall be the court to which the Seller’s registered office is naturally geographically attached.
15. Customer Service
For any information, you can contact ECOSY BOATING : ph. 0033 (6) 77 30 91 28 / 0033 (5) 46 01 65 18 – firstname.lastname@example.org
19 quai de Sénac – 17630 La Flotte – France