ARTICLE 1 - SCOPE OF APPLICATION
1.1 The present general terms and conditions of sale of SEIMI, a simplified joint stock company with a capital of 1,008,700 euros, whose registered office is located at 75 rue Amiral Troude in Brest (29,200), registered in the Brest Trade and Companies Register under number 377 604 905 (hereinafter the "Company") constitute, in accordance with article L 441-6 of the French Commercial Code, the basis of the commercial relationship between the parties. The purpose of these terms is to define the conditions under which SEIMI supplies all of the company's products to professional buyers who request them (hereinafter the "Buyer").
1.2 They apply without restriction or reservation to all sales concluded between the Company and the Buyers, regardless of any contractual stipulations that may appear in the Buyer's documents, and in particular its general terms of purchase.
1.3 SEIMI's General Terms and Conditions of Sale (hereinafter the "GTC") prevail over any general terms and conditions of purchase of the Buyer. Furthermore, the parties have jointly and expressly agreed to exclude the application of the provisions of Article 1119 paragraph 2 of the French Civil Code, in order to apply the GTC.
1.4 These general terms and conditions of sale shall come into force on 13th July 2022. They cancel and replace any other general conditions previously issued by the Company.
1.5 These general terms and conditions of sale may be Completed by Special Terms and Conditions of Sale (STC) granted by the Company as part of its commercial policy in return for the performance by the Buyer of services requested by the Company in connection with the purchase and sale operations. The Buyer's general terms and conditions of purchase are excluded and have no effect.
1.6 The contractual relationship between the Company and the Buyer is governed exclusively by the following contractual documents, presented in descending order of legal value (i) any STC, (ii) these GTC, (iii) any other contractual document and, if applicable, (iv) the Buyer's order. In the event of a contradiction between one or more provisions in any of the documents listed above, the higher-ranking document shall prevail. The term “Contract" means the GTC and any orders.
ARTICLE 2 - ORDERS
2.1 Prior to the first order, each Buyer has the possibility of requesting the opening of a customer account according to a form to be completed, the account will then be activated from the second order. Sales are only binding after the Buyer's order has been expressly accepted in writing by the Company.
2.2 Orders must be issued in writing, by means of an order communicated by the Buyer which is confirmed by an acknowledgement of receipt sent by the Company.
2.3 For orders placed exclusively on the Internet, the registration of an order on the Company's website is completed when the Buyer accepts these GTC by ticking the box provided for this purpose and validates his order. This validation implies the acceptance of the entirety of the present GTC and constitutes proof of the sales contract.
2.4 The acceptance of the order is confirmed by the sending of an e-mail by the Company, considered as an acknowledgement of receipt of the order. The data recorded in the Company's computer system constitutes proof of all transactions concluded with the Buyer.
2.5 Any changes requested by the Buyer shall only be taken into account within the limits of the Company's possibilities and subject to the Buyer's prior express written acceptance.
2.6 Any modification or partial or total cancellation of the order by the Buyer since the moment of the creation of the sales contract will only be taken into account if it has been accepted in writing by the Company and the deposits paid will be retained by the Company.
2.7 In any event, no modification or cancellation of an order by the Buyer may relate to orders for products that are in the process of being prepared, or for which the shipping procedure has been initiated.
ARTICLE 3 - PRICE AND PAYMENT
3.1 The products are supplied at the Company's prices in force on the day the order is placed and are available on the website and, where applicable, in the specific commercial proposal sent to the Buyer.
3.2 The prices of the products are established by reference to the prices in force at the time of the order. Unless otherwise agreed between the Parties, the prices are EX-WORKS (EXW ICC 2021) place designated by the Company, excluding loading. For the sake of clarity, the Incoterm "EX-WORKS" shall be understood to mean a delivery taken over by the Buyer from the time of delivery by the Company at the latter's place of storage. These prices do not include VAT and are exclusive of any local, regional or national taxes and other similar charges and taxes applicable to the products sold by the Company.
3.3 Notwithstanding the foregoing, special pricing conditions may be applied according to the specificities requested by the Buyer concerning, in particular, delivery terms and deadlines, or payment terms and conditions. A special commercial offer will then be sent to the Buyer by the Company.
3.4 The prices are subject to revision, in particular to take account of variations in the cost of raw materials and/or other elements entering into the cost price of the products, both as regards the prices and these conditions and as regards the specific conditions laid down for the sales transaction. Any changes to the prices and conditions of sale will be communicated in advance by the Company.
3.5 Special discounts may be applied according to product categories, quantities and, where applicable, commercial objectives defined between the Buyer and the Seller.
3.6 Unless otherwise stipulated in the order validated by the Company, payments must be made within 30 days of the issue of the invoice by the Company.
3.7 The Company does not grant any discount for early payment.
3.8 In the event of non-payment in whole or in part on the day following the date of payment shown on the invoices, the Company reserves the right to demand payment from the Buyer of a late payment penalty equal to three times the legal interest rate in force. This penalty is calculated on the amount (including VAT) of the outstanding sum mentioned on the invoice(s) concerned by applying the interest rate applied by the European Central Bank in force plus 10 points, as well as a fixed indemnity for collection costs of a minimum amount of 40 Euros in accordance with Article L441-10 of the French Commercial Code. They are automatically due and payable the day after the due date indicated on the invoice without any formality or prior notice, and without prejudice to any other action that the Company may be entitled to take.
In addition, and without prejudice to the application of the penalties referred to above, the Company may suspend its obligations in respect of the order affected by the delay as well as all orders in progress until full payment of the sums still owed by the Buyer and/or request cash payment of any subsequent demand.
3.9 Notwithstanding the foregoing, orders for equipment manufactured (or ordered) specifically for a Buyer outside the Company's standard catalogue programme shall be accompanied by a minimum deposit of 30% of the total order’s amount.
ARTICLE 4 - DELIVERY
4.1 The Company undertakes to use its best endeavours to deliver the goods in accordance with : (i) the incoterms determined between the parties, and (ii) the delivery dates communicated by the Company. Unless otherwise agreed between the parties, delivery shall be deemed to have taken place once the items have been made available to the Buyer in accordance with the Incoterm determined between the parties. Partial deliveries are permitted and the Company shall be entitled to payment for such partial deliveries.
4.2 In the event of a delay in delivery due to a cause not exclusively attributable to the Company (such as, without limitation: force majeure, late payment by the Buyer, late and/or incomplete supply of documentation or elements by the Buyer, export authorisation or licence, late supply of a component of the product or of the product to be delivered by the original supplier), a reasonable extension of the delivery period shall automatically be granted to the Company.
4.3 The Products shall be packaged and wrapped in accordance with the Company's standard packaging methods. Any special packaging or wrapping requested by the Buyer shall be at the Buyer's sole expense, subject to the Company's prior acceptance, and shall be notified to the Company within a reasonable delay to enable it to take account of such special requests. 4.4 The Company shall not be held liable in the event of suspension of delivery attributable to the Buyer or in the event of force majeure under the conditions set out in Article 12.
ARTICLE 5 - RECEPTION
5.1 The Buyer is obliged to check the apparent condition of the products upon delivery.
5.2 The Buyer shall: (i) take possession (loading and/or unloading) at the agreed place, date and time of the products determined for the order and check their conformity with the order; (ii) inform the Company upon receipt of any anomaly concerning these products (in particular by indicating this to the carrier) by producing all the proof necessary to demonstrate these anomalies, shortages, defects, which are apparent on the day of delivery of the goods; and (iii) confirm the anomalies noted to the Company by registered letter with acknowledgement of receipt within forty-eight (48) hours of receipt of the products. The Buyer shall provide justification in order to prove the anomalies or apparent defects noted.
In the absence of reservations expressly made by the Buyer at the time of the delivery, the Products delivered by the Seller shall be deemed to be accepted and to conform in quantity and quality to the order.
5.3 No claim can be validly accepted if the Buyer does not comply with these formalities.
ARTICLE 6 - RETURN OF GOODS
6.1 The Company shall not be required by the Buyer to reject or return goods without the Company having been able to verify the reality of the relevant claim. Thus, any return of a product must have been the subject of an express and prior agreement by the Company as indicated in the return form communicated to the Buyer. In the absence of agreement, any product returned without this agreement will be held at the disposal of the Buyer in the Company's premises and will not give rise to the establishment of a credit note or a replacement. They shall be at the expense and cost of the Buyer.
6.2 In the event of prior agreement communicated by the Company, the product shall be returned carriage paid, and in its original packaging in good condition with a copy of the delivery note and instructions, if any, or invoice as well as the return form. The return agreement will be valid for a period of two weeks. Any return of product for which the cause is not attributable to the Seller shall be subject to a minimum discount of twenty (20) %. This discount may be higher depending on the cause or condition of the returned goods. If the cause is attributable to the Company, the cost of return will be borne by the Company in accordance with its scale, and no discount will be applied. Any goods returned with postage due will be systematically refused. Orders and/or special productions (out of catalogue/out of stock) as well as all products with an expiry date are neither returned nor exchanged.
6.3 Any return accepted by the Company will result in the establishment of a credit note in favour of the Buyer or the replacement of the products at the Company's discretion, after qualitative and quantitative verification of the returned products. exclusion of any damages.
6.4 Any Product returned to the Company and not collected by the Client within six (6) months will be automatically destroyed by the Company.
ARTICLE 7 - TRANSFER OF OWNERSHIP AND RISK
7.1 THE PRODUCTS WHOSE SALE IS GOVERNED BY THESE GTC ARE SOLD WITH A CLAUSE EXPRESSLY SUBORDINATING THE TRANSFER OF THEIR OWNERSHIP TO THE FULL PAYMENT OF THE PRICE IN PRINCIPAL AND ACCESSORIES.
7.2 It is understood that the mere handing over of an instrument creating an obligation to pay, whether a bill of exchange or otherwise, does not constitute payment within the meaning of this clause, the Company's original claim on the Buyer surviving with all the guarantees attached thereto, including the reservation of title, until the said instrument has actually been paid in accordance with these general terms of sale.
7.3 The above provisions do not prevent the transfer to the Buyer of the risks of loss or deterioration of the goods subject to retention of title as well as the damage they may cause, as soon as the products are delivered.
7.4 The Buyer shall take out insurance to cover all risks arising from the delivery of the products.
7.5 The Buyer shall - with regard to products for which payment has not been made - always ensure that these are identified as the property of the Company and cannot, in particular, be confused with or claimed by third parties. Products in stock are presumed to be unpaid.
7.6The Buyer is also prohibited from pledging or transferring the ownership of the products in any form whatsoever by way of security.
7.7 The products may, at any time, and without the need for prior notice, be taken back - at the Buyer's expense - by the Company in the event of the Buyer's failure to fulfil its obligations - without prejudice to the payment to the Company of any damages in this respect. The Company and its carrier shall therefore be authorised to enter the Buyer's premises to remove the products covered by the retention of title clause. This procedure is not exclusive of other actions or legal proceedings that the Company may decide to take.
ARTICLE 8 - INTELLECTUAL PROPERTY
8.1 Unless otherwise provided in the GTC, it is agreed that the performance of the Contract does not entail any assignment of intellectual property rights in respect of the products or goods whether or not created in the course of the performance of the Contract, which rights shall in any event be and remain the sole property of the Company (or where applicable the third party author). The Company thus remains the owner of all plans, studies, manufacturing documents, tools and other intellectual property rights necessary for the manufacture, use and maintenance of the products or goods produced under the Contract.
8.2 However, subject to full payment of any sums due under the Contract, the Company grants the Buyer a personal, non-exclusive, transferable, worldwide right to use only the intellectual property rights necessary for the sole use of the products or goods for the duration of their use, to the exclusion of any other rights.
8.3 The Buyer undertakes : (i) not to remove or alter any symbol or means of identification which may be affixed by the Company to the products and goods, (ii) to use its best efforts to protect the Company's intellectual property rights.
8.4 The Company shall indemnify the Buyer against any infringement action brought by a third party on the grounds that the products and goods infringe the intellectual property rights of the Buyer. However, this guarantee is subject to the following conditions: (i) that the Company has the direction of the action and the freedom to defend and settle, and (ii) that the alleged infringement does not result from modifications specified or made by the Buyer or a third party. Within the framework of this guarantee, and within the limits set out in Article 12, the Company shall bear the damages and interest to which the Buyer would be condemned by a decision having the force of res judicata based on the demonstration of an infringement, and shall at its own choice and expense : (i) obtain a licence to the rights of the third party in question, (ii) modify the part of the products in question, (iii) provide an equivalent replacement solution, or (iv) take back the products delivered and reimburse the Buyer for the price of the latter, with the application of a reasonable rate of depreciation.
ARTICLE 9 - WARRANTY
9.1 The Company guarantees the products sold against manufacturing defects. Unless otherwise agreed, this guarantee is for 12 months, starting from the day of delivery of each product.
9.2 The Company's obligations under the Product Warranty are limited (at the Company's option) to the repair, rectification, refund or replacement free of charge, in the same quantities and to the exclusion of any compensation or damages, of any defective Product, subject to (cumulatively): (i) the Buyer gives written notice to the Company during the warranty period, (ii) the Buyer returns, at its own expense, the relevant Product to any place designated by the Company, and (iii) the Company's inspection of the Product discloses a manufacturing defect covered by this warranty.
9.3 The risks and costs of sending a defective product are borne by the Buyer. Risks and costs associated with : (i) the processing of the warranty claim by the Company, and (ii) the return of the products to the Buyer's premises, shall be borne by the Company, unless the Company's inspection demonstrates that the product is not covered by the warranty, in which case the Buyer shall bear all costs and risks relating to (i) and (ii) above.
9.4 The guarantee offered by the Company under this Article shall not apply: (a) consumable parts (e.g. containing fluids, etc.); (b) defects and faults resulting from a failure by the Buyer (or any third party) to observe the conditions of use, storage, care, maintenance and/or servicing of the product as specified in any instructions, directions for use or by means of advice including oral advice given by the Company; (c) defects resulting from a failure by the Buyer or a third party to observe any applicable rules of practice or standards regarding the use, storage and maintenance of similar products; (d) defects resulting from instructions given by the Buyer, or from repairs, modifications carried out by the Buyer or a third party commissioned by the Buyer; (e) defects resulting from the combination of the products with any equipment or other product not previously approved in writing by the Company; (f) defects resulting from the use or storage of the products under exceptional or abnormal physical, electrical, magnetic or environmental conditions; and (g) defects resulting from accident, damage, improper installation, loading by an unauthorised device, computer attack, intrusion into the Buyer's system, or more generally "cyber attack", and more generally abnormal or unreasonable use. All guarantees other than those mentioned in Article 9.1 are expressly excluded.
9.5 Notwithstanding any clause to the contrary, the Buyer acknowledges that it has received from the Company all the information necessary for its decision to enter into the Contract, and remains solely responsible for it: (i) the use of the products, as well as (ii) the choice of the products, their compatibility with its installations and equipment, and their suitability for its needs. Unless otherwise agreed, it is hereby agreed that the Company does not guarantee the suitability of the products for a use determined by the Buyer, or the suitability of the products for the uses, transformations and integrations for which the Buyer may intend them.
9.6 The Parties agree that no warranty of performance, efficiency, safety or otherwise is given to the Buyer in respect of any Product in accordance with the information, instructions, drawings, plans or specifications supplied by the Buyer.
ARTICLE 10 - SUSPENSION AND TERMINATION
10.1 The Contract may be suspended in the event of force majeure as provided in Article 12 below.
10.2 The Buyer may terminate the Contract in whole or in part, without judicial intervention, by sending a registered letter with acknowledgement of receipt, in the event of the occurrence of one of the following events : (i) breach by the Company of an essential term of the Contract if such breach continues for more than 3 months after receipt by the Company of a notice sent by the Buyer; (ii) in the event of the opening of receivership or liquidation proceedings against the Company; and (iii) without prior notice if an event of force majeure as defined in Article 12 would continue for more than ninety (90) days.
10.3 The Company is entitled to terminate the Contract in whole or in part, without the intervention of a judge, by sending a registered letter with acknowledgement of receipt, in the event of one of the following events occurring: (i) immediately in the event of late payment by the Buyer of more than 10 days; (ii) without prior notice, and in compliance with the legal provisions in force, in the event of the opening of receivership or liquidation proceedings against the Buyer, or in the event of a change of control of the Buyer; and (iii) without prior notice if an event of force majeure as defined in Article 9 continues for more than ninety (90) days.
10.4 Termination of the Contract shall not relieve the parties of any rights and obligations which by their nature or express stipulation are to continue beyond termination, including but not limited to those in Articles 6, 7, 8, 9, 10, 11, 14, 15 and 16.
ARTICLE 11 - LIABILITY
11.1 The Company's liability shall be limited to direct material damage caused by the Buyer as a result of faults attributable to the Company in the execution of the sale of the product. In no circumstances shall the Company be liable to compensate for any loss caused by indirect, consequential or incidental damages, however arising, such as labour or travel costs, penalties, storage costs, delay or non-performance of work, losses, costs, damages, loss of income or profit. The Company also declines all responsibility for any incident or damage caused by the products it markets after modification or manipulation by third parties.
11.2 Subject to any public policy provisions to the contrary, the Company's total and cumulative liability arising out of or in connection with the Contract for any cause whatsoever shall not exceed 30% of the Contract amount or €100,000, whichever is the lower. The Buyer waives any claim, action or recourse and indemnifies the Company and its insurers against any claim, action or recourse by its own insurers in excess of this amount.
ARTICLE 12 - FORCE MAJEURE
12.1 The Parties shall not be held liable if the non-performance or delay in the performance of any of their obligations as described herein is due to force majeure, as defined in Article 1218 of the French Civil Code.
12.2 The defaulting party shall without delay inform the other Party of its inability to perform its obligations and justify this to the other party. The suspension of obligations shall in no case be a cause of liability for non-performance of the obligation in question, nor shall it lead to the payment of damages or penalties for delay.
12.3 The performance of the obligation is suspended for the duration of the force majeure in case such event is temporary. Consequently, as soon as the cause of the suspension of their mutual obligations disappears, the parties will make every effort to resume normal performance of their contractual obligations as soon as possible. To this end, the party prevented shall notify the other of the resumption of its obligation by registered letter with acknowledgement of receipt or any extrajudicial act. If the impediment is definitive, the present contract will be terminated in accordance with the terms and conditions defined in Article 8.
ARTICLE 13 - QUALITY
13.1 As a producer and-or marketer, the Company undertakes to comply with the rules relating to Extended Producer Responsibility (EPR). In this respect, the Company is a member of various eco-organisations in order to finance the collection, recycling and recovery of waste, the identification numbers of which are as follows
- Pyrotechnics : FR231276_07NHLE
13.2 For waste electrical and electronic equipment (WEEE), the amount of the eco-tax is included in the price of the products.
ARTICLE 14 - APPLICABLE LAW AND DISPUTE RESOLUTION
14.1 By express agreement between the parties, these GTC and the purchase and sale transactions arising therefrom are governed by the FRENCH LAW, to the exclusion of all conflict of laws rules.
IN THE ABSENCE OF AN AMICABLE AGREEMENT BETWEEN THE PARTIES WITHIN A PERIOD OF SIXTY (60) DAYS, FOR ANY DISPUTE RELATING TO THE VALIDITY, INTERPRETATION, EXECUTION OR TERMINATION OF THIS CONTRACT, THE PARTIES ATTRIBUTE EXCLUSIVE JURISDICTION TO THE COURTS LOCATED WITHIN THE JURISDICTION OF THE COMPANY'S REGISTERED OFFICE, NOTWITHSTANDING ANY PLURALITY OF DEFENDANTS AND ANY THIRD PARTY CLAIMS.
ARTICLE 15 - PERSONAL DATA
Within the framework of its contractual or pre-contractual relations, the Company is required to process your personal data (surname, first name, contact details, payment data, order history, choices in terms of commercial prospecting, etc.). The Company undertakes to respect the confidentiality of the data and to process them in accordance with the applicable regulations. The purpose of the processing of personal data carried out by the Company is to manage and follow up orders and requests for quotes, to follow up deliveries and invoicing, to follow up customer relations, to fight against fraud involving payment methods, to deal with any complaints, to send information on similar products and/or services and to send commercial prospecting messages in accordance with the legal provisions in force. This data is collected on the basis of the Buyer's consent in accordance with Article 6.1 a) of Regulation (EU) 2016/679. Data is kept for the period of time necessary to fulfil the purpose for which it was collected or for a longer period of time if this is necessary to comply with a legal obligation, a period of limitation of an action or in case of litigation. The recipients of this data are the Company, the companies in its group and the service providers and subcontractors responsible for monitoring the commercial relationship, orders, managing payments and sending commercial information on the Company's products. The Buyer has a right of access to his/her data, a right of rectification or deletion, a right to limit the processing of his/her data, a right to withdraw his/her consent at any time, a right of portability as well as a right to object to the collection of his/her data by sending a letter to the Company at 75 rue Amiral Troude in Brest (29 200) or by email at firstname.lastname@example.org. In the event of an unsatisfactory response within the regulatory timeframe, the Buyer may file a complaint with the French commission in charge of data protection (CNIL - 3 Place de Fontenoy - TSA 80715 - 75334 Paris - Cedex 07).
ARTICLE 16 - ETHICS AND ANTI-CORRUPTION
16.1 Each Party shall comply with all regulations, laws and codes relating to anti-corruption, including but not limited to the provisions of : (i) the law n° 2016-1691 of 9 December 2016 on transparency, the fight against corruption and the modernisation of economic life, and more generally (ii) the OECD Convention of 17 December 1997 on bribery of foreign public officials in international business transactions and their transposition into any applicable national law.
16.2 Upon request by the Company, the Buyer shall forthwith deliver any certificate of compliance with this article, or other statement reasonably required by the Company.
16.3 Without prejudice to any other rights or remedies available to the Company, international conventions or the law, including in particular the award of damages, if it is found that the undertakings or conditions provided for in this article have not been complied with or fulfilled by the Buyer, the Company shall be entitled to suspend the performance of this contract and/or to terminate the Contract with immediate effect, without notice or compensation being payable to the Buyer.
ARTICLE 17 - DIVERS
17.1 THE BUYER DECLARES: (I) BE A PROFESSIONAL, (II) HAVE HAD THE OPPORTUNITY TO NEGOTIATE THE TERMS AND CONDITIONS OF THIS CONTRACT, AND (III) HAVE SUFFICIENT INFORMATION TO ENTER INTO THIS CONTRACT.
17.2 These GTC are written in the English language. In the event that they are translated into one or more languages, only the French text shall be deemed authentic in the event of a dispute.
17.3 These GTC as well as the tariffs and scales and account opening requests are expressly approved and accepted by the Buyer, who declares and acknowledges having perfect knowledge of them, and thereby waives the right to rely on any contradictory document and, in particular, its own general terms and conditions of purchase.
17.4 No failure or delay by any Party in exercising any rights hereunder shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other further exercise of any rights hereunder, except where the law provides otherwise.
17.5 The Company shall be entitled to subcontract all or part of the Contract and shall remain liable to the Buyer, under the conditions and within the limits set out in the GTC, for the performance of the Contract.
17.6 The Buyer may not assign the rights and obligations arising from the contract without the Company's prior written consent. However, the Company may freely assign all or part of the contract to one of its affiliates. In such a case, the Company shall be released from its obligations on the effective date of the assignment which shall be notified by the Company to the Buyer within a reasonable period of time.
17.7 In the event that any provision of the GTC is deemed or declared by a court of law to be illegal or unwritten, the remaining provisions of the GTC shall remain in full force.
17.8 The parties agree that reference to : (i) one gender (male/female) includes the other, and (ii) the singular includes the plural and the plural includes the singular.
Updated on 1st June 2021.