General Terms and Conditions of Sale
CLAUSE n°1 – SCOPE OF APPLICATION
1919 Bains de Mer is a SAS company with a share capital of 1,000 euros. Its headquarter is located at 16 bis rue des Rougeries – 35400 Saint-Malo.
The General Terms and Conditions of Sale (hereinafter referred to as the “GTCS”) govern the contractual relations (hereinafter the “Contract”) between the company 1919 Bains de Mer (hereinafter the “Company”) and the Client (hereinafter after “the Client”) (hereinafter jointly the “Party (ies)”)
The GTCS are systematically communicated to the Client with the order form/quote (hereinafter the “Order form”). Consequently, placing an order for the Products and/or Services (hereinafter the “Order”) implies the Client’s full and unreserved acceptance of the said GTCS and the Order Form, excluding all other documents in its possession such as leaflets, catalogs or advertising brochures issued by the Company, which will only have an indicative value and not a contractual one.
The GTCS fully govern the relations between the Company and the Client. No general condition of purchase may prevail or be opposed by the Client to the Company. Likewise, no particular condition sent by the Client to the Company can prevail over the GTCS, unless formal and written acceptance of the Company.
Any reserves put forward by the Client about the GTCS will, therefore and in all circumstances, except of express acceptance by the Company, be unenforceable against the Company.
All provisions derogating from these GTCS must result from an express agreement of the Parties, reflected in the Order confirmed by the Company or any other document evidencing the agreement of both Parties.
The fact that the Company does not use any condition from these GTCS cannot be interpreted as a waiver of the right to invoke any of these conditions at a later date.
CLAUSE n°2 – OBLIGATIONS OF THE PARTIES
2.1. Client Obligations
The Client agrees not to damage, in any case and in any way whatsoever, the Products provided by the Company.
In the event of degradation or deterioration, exclusive of normal use, of the Products sold or rented, the repair costs will be borne by the Client.
The Client expressly declares to have received from the Company all information and advice necessary for the use of the Products and renounces to seek the liability of the Company.
The Client agrees to collaborate closely with the Company and to provide all information, documentation, services, and all means useful for the implementation of the Services and the use of the Products and agrees to make available to the Company all the elements to meet its obligation, including staff dedicated to the proper implementation of the Services.
In the event of an intervention on the Client’s premises for the delivery of the Products, the Client agrees to give all ease of access to the staff of the Company responsible for intervening on its premises and make available to them premises enabling the delivery to be carried out under normal conditions.
The Client agrees not to alter, in any case and in any manner whatsoever, the reputation of the Company, the Services and the Products.
The Client agrees to fill in duplicate copies the rental form upon receipt of the rented/lent Products, and to send back a copy of the form to the Company.
The Client ensures to the Company that they have all the necessary authorizations and approvals needed for the purchase and/or rental and/or repair of the Products.
2.2 Company obligations
Under this Contract, the Company agrees to provide all the necessary means and to make every effort to provide the Products and Services in accordance with the standard practice. This obligation cannot be interpreted as a an “obligation of result” concerning the repair, the Company providing this Service only within the framework of an obligation of means.
CLAUSE n°3 – CONTRACT DURATION
The Contract is concluded by the Parties, in accordance with the Order form:
- for a period of 1 (one) week to 5 (five) years about the rental of the Products, the duration being indicated in the Order form,
- during the time needed for the repair of the Products, if need be.
The Client may ask the Company to extend the rental period of the Products. The Contract will then be renewed for this period.
At the end of the rental/lending period of the Products, the Company will come and get back the Products at the expense of the Client at the location agreed upon by the Parties.
CLAUSE n°4 – PRICE AND BILLING
The pricing conditions of the Company relating to the supply of Products and Services are scheduled in the Order form validated by the Order.
The planned prices are indicative only and are therefore subject to modifications. The charged prices are those in force at the time of the validation of the Order by the Client (signature of the Order form).
The prices of the Products and Services are expressed and payable in Euros or USD and are expressed exclusive of VAT and all other taxes, the Client being responsible for the payment of said taxes.
Bills are payable by wire transfer 30 (thirty) days after the billing date. Without prejudice to any damages, default on the Client’s payment of a bill automatically causes :
- The payment of late penalties which will be calculated, from the due date indicated on the bill until the day of the effective payment, at a rate of three times the French legal rate of interest.
- In accordance with article D.441-5 of the French Commercial Code, the payment of the fixed allowance for recovery fees, for a minimum of 40 (forty) euros.
- The suspension of the subscribed Services, after a prior formal notice that remained unanswered at the end of a period of 15 (fifteen) business days ; this suspension cannot constitute a ground for liability on the part of the Company. The Company may request, at the Client’s expense, the pure and simple restitution of the rented Products, or of those that the price has not been entirely paid.
Any request by the Client, for additional Services or for any modifications of any kind, will be the subject of a new Order form from the Company.
CLAUSE n°5 – PRODUCT DELIVERY
After placing the Order, the Products will be delivered to the Client.
The Products are delivered to France and abroad. The delivery of the Products is carried out by transport companies such as FedEx, UPS, DHL, TNT, or any other.
The Products ordered are delivered to the delivery address indicated by the Client on the Order. The delivery fees are on the Client’s expense.
The Company reserves the right to split its deliveries. Partial delivery will not release the Client from its obligation to pay the price of what remains to be delivered.
The Products will be delivered within a period not exceeding 2 (two) months, from the date of confirmation of the Order by the Company; the delivery date is purely indicative, and does not constitute an essential element of the Contract. The Company cannot be held responsible for the consequences of delays or failures in deliveries for whatever reason.
The Client must ensure that the information communicated remains correct until complete delivery of the Products. The Client therefore agrees to inform the Company of any change in delivery details that may occur. Otherwise, in the event of a delay in the delivery and/or a delivery error, the Client shall not seek the Company’s liability. The Client must contact the Company, that will contact the Client for a second delivery at the Client’s expense.
In the event of a Product is returned due to the absence of the Client, the Company will contact the Client for a second delivery at the expense of the Client.
If the Client considers that the Client has received Products that it thinks to be defective or non- compliant (for example: deteriorated, damaged, open or pierced product), he must contact the Company, within 48 (forty-eight) hours following the reception of the Products, at the following electronic address email@example.com.
The Client shall provide any justification as to the designation of the apparent defects and/or anomalies observed to the Company and not intervene himself or involve a third party for this purpose.
If the defects and/or anomalies are confirmed by the Company, the Company shall send the instructions to the Client on how to proceed and, if necessary, will replace the Products confirmed by the Company to be defective or non-compliant.
CLAUSE n°6 – RESERVATION OF OWNERSHIP AND TRANSFER OF RISK
THE PRODUCTS SOLD REMAIN THE WHOLE PROPERTY OF THE COMPANY UNTIL FULL PAYMENT OF THE CHARGED PRICE.
THE RENTED/LENT PRODUCTS ARE THE EXCLUSIVE PROPERTY OF THE COMPANY.
THE RENTED/LENT PRODUCTS CANNOT BE TRANSFERRED TO THIRD PARTIES OR SUBLEASED.
THE CLIENT MUST IMMEDIATELY INFORM THE COMPANY OF ANY CLAIMS MADE BY THIRD PARTIES ON THE PRODUCTS, IN PARTICULAR, RECLAIMS OR SEIZURES.
THE TRANSFER OF RISKS IS CARRIED OUT, TO BE BORNE BY THE CLIENT, AFTER THE TRANSPORT OF THE PRODUCTS.
The Client expressly agrees to notify all sub- purchasers or transferees of all the contractual sales provisions, in particular the above-mentioned reservation of ownership clause and the prohibition as a result of paying the price in other hands than the Company’s.
The Company may rely on this clause, 8 (eight) days after sending a formal notice by registered mail with an acknowledgement of receipt which has remained unanswered. The action for a claim will relate either to the Products not yet fully paid for, or, in the event of a resale or a dispossession of the Products, to the debt obligation of the price or the part of the price of the Products that has not been paid yet.
CLAUSE n°7 – PROTECTION OF PERSONAL DATA
Each Party agrees to comply with the regulations in force applicable to the processing of personal data and, in particular, the French Data Protection Act dated January 6th, 1978 as amended by the Act of June 20th, 2018 and the European Regulation 2016/679 of the European Parliament and of the Council of April 27th, 2016 (“GDPR”).
Under this Contract, as the Company is collecting and processing the Client’s personal data, the Company is responsible for processing said data. As such, the employees of the Client whose personal data would be collected by the Company have a right of access, rectification, erasure, portability, limitation of processing and opposition to the processing of their data, in compliance with the applicable legal provisions.
Each of the Parties agrees not to communicate to third parties the personal data to which they may have access to, in particular for commercial prospecting purposes, and shall ensure the security and confidentiality of the data.
CLAUSE n°8 – REPAIRS
Regarding Repair Services, the Company will intervene on the Client’s premises.
Repair Services are relating to the Products sold and/or rented by the Company, as well as the Products sold by other companies to the Client.
If during the implementation of the Services, it appears necessary to make additional repairs, the Company will notify the Client so that a new Order form is signed.
CLAUSE n°9 – GUARANTEES
The Company guarantees that the Services and Products are provided in accordance with the Order.
Unless otherwise provided by law, all other warranties, express or implied, are excluded.
The Company cannot be held liable for any guarantee, in particular when the Client has modified or caused the Product and/or Services to be modified, or when the Client or third parties have intervened on the Products to which the Services are dedicated or on which they are implemented.
The Company guarantees the Client that the Products and Services are in compliance with the Order Form.
All the Products on which the Company does not make any transformation are guaranteed by the manufacturers. The contractual guarantee granted by the manufacturers commits only the latter.
Warranties do not apply in the event of misuse, Client’s negligence, or if the Products have been subject to abnormal use, or have been used in circumstances different from those for which they were made, or have not been used in accordance with the instructions provided in the manufacturer’s instruction manual. Warranties do not also apply in the event of a deterioration or an accident resulting from a shock, a fall, a negligence, a lack of supervision or maintenance, or in the event of a modification of the Products.
CLAUSE n°10 – LIABILITY
The Company’s liability is limited to only proven direct damage resulting from a defect in the Products and/or Services, or the breach of the Contract.
In any case, the Company will not be held liable for indirect, incidental or specific damages as defined by the jurisprudence of French courts.
The Company cannot be held liable for the breach of the Contract in the event of a force majeure event as defined by the jurisprudence of French courts, and in the event of damage caused by a third party or attributable to improper use or to non-compliant use by the Client of the Services and/or Products, in violation of the prescriptions of the Company and/or manufacturers or of the standard practice.
In particular, the Company cannot be held liable for a) damage and loss caused by improper use of the Products and/or Services by the Client and/or any third party, b) any malfunction, error, inaccuracy or improper result, attributable to the incorrect, unauthorized or incompatible use of the Products and/or Services by the Client and/or by third parties.
The Client is solely responsible for the relationships with its partners and patients. In the event of a conflict, the Company will in no case be held liable.
Except for bodily injury or death, and except in the event of gross negligence or intentional fault causing proven direct damage or in the event of breach of an essential obligation of the Contract emptying it of its substance, the Client acknowledges that the responsibility of the Company is limited to the amount paid by him for the related Order.
CLAUSE n°11 – INSURANCE
Each Party agrees to maintain in force, throughout the duration of implementation of the Contract, with a notoriously solvent insurance company, an insurance policy guaranteeing damage that may occur to its property and staff, as well as a policy covering their professional liability (tort and contractual responsibilities), so as to cover the pecuniary consequences of bodily, material and immaterial damage for which they would have to answer to, caused by any event and which would be the deed of their potential collaborators and/or partner companies during the implementation of the Contract.
CLAUSE n°12 – STAFF MANAGEMENT
The staff of the Company assigned to the execution of the Contract remains under the administrative control and the hierarchical and disciplinary authority of the Company throughout the duration of the Contract. The Company provides supervision and control for its employees, including when the Services are performed on the Client’s premises.
Health and safety
The Company agrees to do everything necessary to ensure that its staff, when they intervene on the Client’s premises, complies with the Client’s Internal Rules and the provisions applicable to outside companies present in said premises, and in particular those relating to hygiene and safety. The Client agrees to bring these provisions to the attention of the Company.
In the event that the staff of the Company accesses to the Client’s information system, the Company agrees to comply with the provisions gathered in the Client’s applicable IT charter or any other similar document.
CLAUSE n°13 – UNDECLARED WORK
The Company declares that it is registered with the Trade and Companies Register, as well as with URSSAF and that its registrations expressly cover all its activities for the execution of the Contract.
CLAUSE n°14 – NON-SOLICITATION OF STAFF
The Parties waive the right to hire or cause to work directly, or through an intermediary, any employee of the other Party assigned to the performance of the Contract, whatever their specialization, and even if the initial request is made by the employee. This renunciation is valid for the entire duration of the Contract, increased by a period of 24 (twenty-four) months from its expiration or termination for any reason whatsoever.
In the event that one of the Parties does not comply with this obligation, the defaulting Party shall compensate the other Party (in particular for selection and recruitment expenses, training costs, damage resulting from its personal reputation or commitments already taken on its own account, etc.) by immediately paying the Party a lump-sum amount equal to the gross annual remuneration that the employee will have received or should have received before his departure.
CLAUSE n°15 – OBLIGATION OF LOYALTY
The Parties agree, throughout the duration of the Contract, to faithfully perform their respective obligations and to seek in good faith all possibilities likely to reach a rapid and balanced resolution of any potential problems or difficulties that may arise during the execution of the Contract.
CLAUSE n°16 – REFUSAL
The Company may not accept an Order from the Client when the Company has already encountered payment problems (non-payment or late payment) with the Client for one or more previous Order(s).
CLAUSE N°17 – COMMUNICATION
The Client authorizes the Company to mention its name and logo on a list of references which the Company may use on his communication means.
CLAUSE n°18 – FORCE MAJEURE
The Parties agree to acknowledge as a case of force majeure any event meeting the criteria defined by the jurisprudence of the Court of Cassation in application of the article 1218 of the Civil Code. Force majeure cannot be summoned for late payment or non- payment by the Client.
CLAUSE n°19 – SUBCONTRACTING
The Company may subcontract all or part of the implementation of the Services to subcontractors. In this case, the Company remains responsible for providing the Services to the Client.
CLAUSE n°20 – TITLES OF THE CLAUSES
The titles of the clauses are inserted herein only for reasons of convenience. They must in no case be considered as an integral part of these clauses nor interpreted as a limitation of the scope of the clauses to which they refer.
CLAUSE n°21 – ABSENCE OF WAIVER / EXERCISE OF RIGHTS
In the event that any one or several of the provisions of this Contract are, for any reason whatsoever, deemed to be void, this invalidity will not affect any other contractual provision.
The Parties will replace said void provision with a valid and enforceable provision, in accordance with legal or regulatory provisions, whose effect will be as close as possible to the economic result or to any other result expected by the Parties.
Proof evidence: the Company and the Client agree that all written documents, in particular electronic documents, exchanged between them as well as all data, in particular technical, are authentic and validly prove the content of their exchanges and their commitments. The dematerialized signature of the Contract is considered as binding upon the Parties.
The fact that one of the Parties does not exercise any of the rights granted by these clauses, as well as any delay by one of the Parties in the exercise of these rights, does not stand for a renunciation of said rights. Likewise, the partial exercise of a right or of only one of the legal remedies made available to one of the Parties will not prevent the latter from fully exercising this right or from exhausting all the legal remedies made available to the Party.
CLAUSE n°22 – APPLICABLE LAW
The Contract is governed exclusively by French law; the Vienna Convention on the Sale of Goods is expressly excluded.
CLAUSE n°23 – LITIGATIONS
Any conflict arising from the interpretation, execution, non-performance, or from the effects or consequences of the Contract will be submitted, in the event that the dispute is brought before civil courts, before the Commercial Court of the headquarters of the Company.
CLAUSE n°24 – GENERAL CLAUSES
The Contract expresses all of the agreements and commitments of the Parties with regard to their subject matter and replaces any other convention or prior agreement, written or oral, any information, whatever its nature, provided prior to these, having the same object, which will be deemed to be obsolete and of no effect.