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SAS MECANOKIT on September 15, 2014
These general conditions of sale apply to all sales concluded by the Company MECANOKIT, domiciled ZI La Croix des Chaumes – 85170 LE POIRE-SUR-VIE (France) - registered in the Trade and Companies Register of La Roche-sur -Yon under number 388 091 761 (hereinafter referred to as "the Seller") to its professional Customers (hereinafter referred to as "the Buyer"), concerning its standard products (hereinafter referred to as "the Products").
Consequently, these general conditions of sale constitute the sole basis of commercial negotiation in accordance with article L 441-6 of the Commercial Code and serve as a reference to the provisions of article L 442-6 of the same Code.
The Buyer waives the right to invoke any provisions contrary to these conditions. These general conditions of sale, which cancel and replace all conditions previously published, apply from September 15, 2014.
Any derogation from these general conditions must be expressly accepted in writing by the Seller. “Writing” means, within the meaning of these general conditions, any document drawn up on paper, electronically or by fax.
Form an integral part of the contract: these general conditions, the special conditions accepted by both parties, the order accepted by any means, in particular by acknowledgment of receipt or order confirmation, the technical documents of the Seller supplementing these general conditions (technical sheets , notices, etc.), the delivery note and the invoice.
Any order implies the Buyer's unreserved acceptance of these conditions, except for special conditions granted in writing by the Seller to the Buyer.
Any commercial document other than these general conditions of sale and in particular catalogues, prospectuses, advertisements, and more generally the documents presenting and promoting the Seller's Products, has only informative and indicative value, non-contractual which cannot thereby committing the Seller.
The fact that the Seller does not take advantage at a given time of any of these general conditions of sale cannot be interpreted as an express or tacit waiver to take advantage of any of the said conditions at a later date.
2. LAW / JURISDICTION
The Seller and the Buyer agree to submit any dispute of any kind, arising from the application, interpretation or execution of these General Conditions of Sale, to the Commercial Court within the jurisdiction of the Seller's registered office, at unless the Seller prefers to seize any other competent jurisdiction.
The applicable law is French law. The French language will prevail over any other translation in the event of dispute, litigation, difficulty of interpretation or execution of the general conditions of sale and more generally concerning the relations existing between the parties.
3. BUYER'S ORDER
Any order, to be taken into account, must reach the Seller in written form (by e-mail, letter or fax) and include all the information required to allow the Seller to analyze the order.
Any order made by the Buyer or transmitted by a representative of the Seller is valid only after written confirmation by the competent management of the Seller. The benefit of the order is personal to the Buyer and cannot be assigned without the Seller's written consent.
The Buyer's orders are firm and final. No order cancellation, total or partial, on the part of the Buyer, can be taken into account without the prior written agreement of the Seller. In addition, in the event of modification of the Buyer's order, accepted by the Seller, the latter will be released from the delivery times initially agreed.
The Products are supplied at the prices in force on the day the order is placed.
The prices will however be subject to revision at any time by the Seller depending in particular on the increase in the cost of raw materials, the increase or creation of taxes applicable in the Seller's sector of activity, the conditions supply, etc.
Price revisions will be communicated to the Buyer.
These prices are stipulated excluding taxes, VAT and other taxes in addition to the rate in force on the day of invoicing.
The Buyer freely determines its commercial policy and its resale prices. It is therefore solely responsible for setting and advertising its prices within the framework of the regulations in force.
5.1. Except for special conditions, sales are settled by the Buyer at 30 (thirty) days net from the invoice date.
For any purchase of Product whose manufacture is undertaken on special order, a minimum deposit of 30% of the total price of the invoice will be required when placing the order.
The aforementioned payment period may not, by express agreement between the parties, be delayed for any reason whatsoever. Complaints made by the Buyer are in no way likely to postpone the due date for payment of the order to which they relate.
No discount for early payment is granted, except with the Seller's prior written agreement.
Invoices are payable in all circumstances at the Seller's head office, by accepted drafts, bank transfers or any other method of payment determined by the Seller in accordance with the due date. Invoices are considered paid when the amount shown therein is definitively credited to the Seller's bank account.
5.2. In the event of late payment by the Buyer beyond the agreed period, and from the day following the payment date shown on the invoice, late payment penalties equal to three times the legal interest rate, will be automatically and rights acquired by the Seller, without any formalities or prior formal notice, and this, in accordance with Article L 446-1 of the Commercial Code. This interest runs from the due date until full payment of the amount due.
Late payment interest will be increased by a minimum fixed compensation for recovery costs of 40 euros, in application of the provisions of articles L.441-3 and L.441-6 of the Commercial Code.
If the recovery costs incurred by the Seller exceed 40 euros, the Buyer must reimburse all the costs borne by the Seller and caused by the contentious recovery of the sums due, and this within the limit of an indemnity of an amount equal to 10% of the amount remaining unpaid on the due date, duly justified by the Seller, without prejudice to any other action that the Seller would be entitled to bring, in this respect, against the Buyer and compensatory indemnities for his damage which would be allocated to him. Any deposit paid by the Buyer may be retained by the Seller under the penalty clause set out above.
Finally, forty-eight hours after a formal notice has remained unsuccessful, the sale will be terminated automatically if the Seller sees fit, who may request, in summary proceedings, the return of the Products, without prejudice to any other damages.
In addition, the non-payment of a single invoice makes the amount of the other invoices remaining due to the Seller immediately due and payable, all of the sums in question being subject to the same provisions as defined above.
In addition, in the event of non-compliance with the payment conditions listed above, the Seller also reserves the right to suspend or cancel the delivery of orders in progress and more generally to suspend the performance of its obligations.
5.3. Any deterioration in the Buyer's credit and, more generally, any modification, whatever the origin, of the Buyer's situation, may justify the requirement of guarantees and/or specific payment terms set by the Seller, or even the refusal by the Seller to follow up on the orders made by the Buyer.
6. COLLECTION - TRANSPORT - DELIVERY - COMPLAINTS
6.1. Unless otherwise agreed, the delivery of the Products will be made from the Seller's warehouses according to the conditions of the EXW Incoterms (Ex Works - ex-Warehouse of the Seller, in accordance with the latest current version of the Incoterms drawn up by the International Chamber of Commerce) . This method of sale applies even if the Seller organizes the loading or transport operations of the Products on behalf of the Buyer.
The Buyer therefore bears all the costs and risks inherent in the loading/unloading and transport of the Products from the Seller's warehouse to its own warehouses.
The availability or delivery times indicated by the Seller are only given as an indication and according to the possibilities of supply. Exceeding delivery times cannot give rise to damages, deductions, or cancellation of the order in progress. The Seller undertakes to keep the Buyer informed in the event of delay or deferred total or partial delivery.
6.2. The Products travel at the risk and peril of the Buyer, who is responsible for checking the condition, quantity and quality of the Products and therefore their compliance with the content of the order placed. The Buyer, in this perspective, undertakes to:
• take possession at the agreed places, dates and times of the Seller's Products, subject of the order and to check their compliance with the order;
• report on receipt of any anomaly concerning these Products, in particular by indicating the necessary written and precise reservations on the carrier's document whether the latter has been chartered by the Seller or by the Buyer and to confirm these reservations to the carrier by registered letter with acknowledgment of receipt within three (3) days, not including public holidays, in accordance with Article L. 133-3 of the Commercial Code, by producing any supporting documents necessary to demonstrate these anomalies, missing, apparent defects;
• confirm to the Seller the anomalies, missing items, apparent defects noted, by registered letter with acknowledgment of receipt within eight (8) days, not including public holidays, following receipt of the Seller's Products, accompanied by the necessary supporting documents to the demonstration of these anomalies, missing, apparent defects.
• Any product that has not been the subject of reservations to the carrier and the Seller within the deadlines and according to the terms and conditions above, will be deemed to be in conformity and accepted by the Buyer.
6.3. Apart from the problems of deterioration linked to transport, missing items, apparent defects or non-compliance of the order referred to in paragraph 6.2 above, all the other complaints of the Buyer concerning the quality of the Products, non-apparent defects, or hidden defects to be taken into account by the Seller, must be sent to him by registered letter with acknowledgment of receipt, expressly specifying the product concerned with mention, where applicable, of its serial number, and be accompanied by the invoice. purchase and more generally all information and all justifications as to the reality of the defects observed.
6.4. In the cases provided for in paragraphs 6.2 and 6.3 above, the Buyer must let the Seller proceed to the observation of visible defects or hidden defects and, if necessary, provide a solution. The Buyer shall therefore refrain from intervening itself or from having recourse to a third party for this purpose.
The Buyer must also take all measures not to aggravate the apparent defects or hidden defects noted, non-compliance with this condition excluding any action for liability, where applicable, brought against the Seller.
Any return of Products cannot be made without the prior written consent of the Seller (materialized by a return form completed by the Seller and sent to the Buyer). The costs and risks associated with the return transport of the Products remain, unless agreed in writing by the Seller, the responsibility of the Buyer.
Any return refused by the Seller or any Product returned without the Seller's prior agreement will not give rise to the establishment of a credit note or replacement.
In addition, in these cases, the Seller's after-sales service will communicate to the Buyer a repair estimate including the cost of intervention as well as travel expenses, if applicable.
In the absence of acceptance by the Buyer of the conditions of the repair estimate within a maximum period of 30 days, the Seller will return the Product to the Buyer who will bear the costs and risks associated with the return transport.
Any return accepted by the Seller will result in the establishment of a credit note for the benefit of the Buyer or the replacement of the Products at the Seller's choice, excluding any damages or other compensation.
6.5. The specific provisions relating to the methods of application of the contractual guarantee of the Products are defined in paragraph 8.1 below.
7. USE OF PRODUCTS - EVOLUTION OF PRODUCTS
Considering his status as a professional, the Buyer shall be solely responsible for the choice, storage and use of the Products acquired by him from the Seller. As such, he declares to be fully informed of the characteristics and developments of the Products acquired from the Seller.
The Products are delivered accompanied by technical documentation in accordance with legal requirements.
The Purchaser undertakes to read these documents and to transmit them to the sub-purchasers.
The Purchaser acknowledges having been able to obtain all the necessary details concerning their packaging, storage conditions, use and use, and consequently having proceeded to their acquisition and use in full knowledge of the facts.
Buyer shall be solely responsible for determining and ensuring the suitability and suitability of Seller's Products for their intended purpose and the circumstances in which they will be used. Any advice or information given by the Seller regarding the suitability and applications of the Products shall not relieve the Buyer from carrying out its own tests and inspections.
The Seller reserves the right to modify its Products at any time and without notice. Consequently, no costs may be requested for the removal of old components or for the installation of upgrades.
8. GUARANTEES – RESPONSIBILITIES
8.1. Unless otherwise specified, the Products sold are contractually guaranteed by the Seller to the Buyer or to the sub-purchaser against any defect in material, manufacture or operation, revealing themselves for a period of twelve (12) months or 1,000 hours, from the date of delivery or taking possession.
8.2. The guarantee is only applicable if the Buyer has satisfied the general obligations of this contract and in particular the terms of payment and guarantees.
This warranty is strictly limited to the Products supplied by the Seller and does not apply to the visible and/or missing defects referred to in paragraph 6.2 above.
When the Products are incorporated by the Buyer or a sub-purchaser, in any material, the latter are solely responsible for the adaptation, choice and adequacy of the Seller's Products. The warranty is not granted, in particular in the event of a defect in the assembly, adaptation, design, relationship and operation of the assembly or parts of the assembly thus created.
Any warranty is excluded in the event of non-compliance with the Seller's recommendations, misuse, negligence or lack of maintenance on the part of the Buyer, or any other sub-purchaser.
Defects or deterioration of the Products resulting from an external accident, abnormal storage and/or conservation conditions at the Purchaser or sub-purchaser, cannot give rise to the Seller's guarantee.
The warranty does not apply where replacement or repair results from normal wear, abrasion and corrosion of the Product or force majeure.
This warranty is also excluded in the event of a defect resulting from the repair or intervention of a third party on the Products, in the event of poor assessment by the Buyer of its needs, and in the event of modifications made to the Products.
When the Buyer assembles and installs the Products sold, any warranty is excluded in the event of a defect resulting from the assembly and/or installation of the product by the Buyer, such as in the event of non-compliance with the assembly and use instructions, provided by the Seller if necessary
Finally, under the terms of this contractual warranty which is limited, at the Vendor's choice, to the replacement or repair of Products under warranty, deemed to be defective, the Vendor cannot be held liable for other direct material damage caused to the Buyer, as well as to its customers/sub-purchasers, as well as the consequences, of whatever nature, that the defects may have entailed.
Thus, under no circumstances, the Seller will be required to compensate immaterial or indirect damages such as: operating losses, profit, opportunity, commercial damage, image damage, loss of earnings.
8.3. In order to assert its rights under the contractual guarantee set out above, the Buyer must, under penalty of forfeiture of any action relating thereto, inform the Seller, by registered letter with acknowledgment of receipt, of the existence of defects within a maximum period of 72 hours from their discovery, occurring during the contractual warranty period.
The Buyer must provide the purchase invoice or the guarantee certificate as well as any justification as to the reality of the defects observed.
Once this information has been notified to the Seller within the said 72-hour period, the Buyer must return to the Seller, at his own expense, the Product which he considers to be defective, within fifteen days of its discovery.
The Seller alone is authorized to proceed, directly or indirectly, to any observation and verification in its workshops.
Its warranty is limited, at the Vendor's choice, to the replacement or repair of Products under warranty deemed to be defective.
In the case of a replacement, the new Product will be the subject of an invoice which will be canceled by a credit note once the defective Product has been received and analyzed as such by the Seller.
Interventions under the warranty cannot have the effect of extending the duration of the latter.
8.4. In any event, the Seller's civil liability, all causes combined with the exception of bodily injury and gross negligence, is limited to a sum capped at the amount of the sums collected for the sale subject to the dispute.
9. SELLER'S INTELLECTUAL PROPERTY RIGHTS
As necessary, it is recalled here that the Seller has exclusive rights to the trademarks and distinctive signs as well as the other intellectual property rights relating to its Products (in particular, technical and commercial data sheets, plans, photographs, etc., without this list is exhaustive) to own it.
The Buyer cannot therefore acquire, modify, exploit or file any industrial or intellectual property right, such as patents, designs, models, trademarks, trade names, references and other distinctive signs of the Products, granted or belonging to the Seller, and in particular on the Products, the technical or commercial documentation, the names, brands, etc.
Any exploitation, production, modification and more generally any use contrary to the rights of the Seller, will give rise to any action of its choice, both civil and criminal, on the part of the Seller, in order to put an end to this behavior and repair the damage suffered.
The Buyer undertakes not to register, directly or indirectly, in the territory or outside it, any of the patents, designs, models, trademarks, trade names, references and other distinctive signs, conceded or belonging to the Seller or which resemble it, nor incorporate them, even partially, in its name or in one of its distinctive signs or domain name.
The Buyer undertakes to inform the Seller without delay of any infringement of the industrial or intellectual property rights of the latter, in the territory, brought to his attention. The Buyer undertakes to do its best to assist and help the Seller to protect itself against such infringements.
10. FORCE MAJEURE
The Seller reserves the right to suspend or terminate all or part of the sale, as of right, in the event of events of force majeure or fortuitous events such as, in particular, strikes, lock-outs, bad weather, insufficient quantities of Products on the market, likely to stop or reduce the sale of its Products or any causes not directly and exclusively attributable to the Seller.
The latter will inform the Buyer in this respect as soon as possible. Orders in progress are therefore postponed until the end of the force majeure event.
11. RETENTION OF OWNERSHIP CLAUSE
THE PRODUCTS ARE SOLD SUBJECT TO OWNERSHIP: THE TRANSFER OF OWNERSHIP IS SUBJECT TO FULL PAYMENT OF THE PRICE BY THE BUYER, ON THE AGREED DUE DATE.
The Seller retains ownership of the Products sold to the Buyer, until full and effective payment into his hands of the full price. The Products are considered as actually paid when the total price, taxes included, is definitively credited to the Seller's bank account. Failure to pay any of the installments may therefore result in a claim for these Products. Nevertheless, from the time of delivery, the Buyer assumes responsibility for any damage that these Products may suffer or cause.
The parties reciprocally agree to a general obligation of confidentiality relating to any oral or written information, whatever it is and whatever the medium, exchanged within the framework of the preparation and execution of the contract except the information which is generally known to the public or which will become so other than by the fault or because of the Buyer.
The Purchaser undertakes to take all the necessary measures to ensure compliance with this obligation of confidentiality, throughout the duration of the contract and even after its expiry, and vouches for the respect of this obligation by all of its employees. This obligation is an obligation of result.
13 - PERSONAL DATA - COMPUTER LAW AND FREEDOMS
The Parties mutually authorize each other to collect, process and transfer personal data concerning them or their Customers, in particular for the purposes of the execution of this Contract.
These data may be transmitted to all contractors or entities of their group, for the purposes of carrying out their respective activities.
The Parties have a right to access, modify, rectify and delete data concerning them, in accordance with the amended Data Protection Act of January 6, 1978.