Article 1. SCOPE OF AGREEMENT
1.1 The following terms and conditions apply to the SEIMI company - SIRET 377 604 905 00028 – RCS BREST B377 604905-90B – CS 41809, 29218 BREST CEDEX 2, hereafter referred to the seller – subordinate its sales and constitutes the commercial negotiation. Therefore, the fact that the Purchaser makes orders will involve the following: any waiver by the Purchaser – for any reason, any time, in any other case, or otherwise when the relevant documents are.
If in any cases the Seller was brought to sign the Purchasing sales and terms conditions form, its signature will be considered as acceptance only for the terms that are not contrary to these present sales terms and conditions.
1.2 The failure to exercise at any time, a prerogative recognized by these terms and conditions of sale, or not to require the performance of any stipulation of the agreement resulting from the said conditions can in no way be interpreted neither as a modification of the contract nor as an express or tactile waiver of the right to exercise such prerogative in the future, or the right to demand the scrupulous execution of the commitments entered into herein.
1.3 The present terms and conditions of sale enter into effect January the 1st 2009. They cancel and replace all other general conditions diffused previously by the salesman.
1.4 These general conditions of sale may be supplemented by Special Conditions of Sale (CPV) granted by the Seller as part of its commercial policy in return for the performance by the Purchaser of services requested by the Seller related to the purchase sales transaction.
Article 2. ORDERS
IT IS EXPRESSLY AGREED BETWEEN THE SELLER AND THE PURCHASER:
- THAT WILL BE ONLY COMPETENT, IN THE EVENT OF DISPUTES OF ANY NATURE, DISPUTE OR DIFFICULTY OF INTERPRETATION OF THE PRESENT GENERAL CONDITONS OF SALE AND MORE GENERALLY RELATING TO THE RELATIONS BEWEEN THE PARTIES, THE TRIBUNAL DE COMMERCE OF THE SELLER’S HEAD OFFICE, UNLESS THE SELLER PREFERRED TO SEIZE ANY OTHER COMPETENT JURISDICTION;
- THAT THE FRENCH LAW IS APPLICABLE, THIS CLAUSE APPLIES EVEN IN CASES OF REFERENCE, INCIDENTAL APPLICATION OR PLURALITY OF DEFENDANTS.
Article 3. JURISDICTION/ APPLICABLE LAW
3.1 All orders must be subjected to a written document including imperatively the purchaser’s signature and company stamp; therefore, the order placed verbally by the Purchaser must be confirmed by the Purchaser in writing and include the type of contract, products and quantities ordered to allow the Seller to analyze the order. In particular, for customers in account, it is necessary that the account number is mentioned in the order. If there is no written confirmation by the Purchaser of his verbal order, no claim will be accepted. Any order made by the Purchaser or transmitted by a Seller’s representative is valid only after confirmation by a Seller’s representative.
3.2 All orders must have a minimum value (see the conditions of this minimum in the current price document on the internet or on the paper document).
3.3 Special orders (see price document as above). Orders with manufactured equipment (or ordered) especially by the purchaser outside the standard program of the catalogue will be followed by a deposit of 30% minimum.
3.4 The benefit of an order is personal to the Purchaser and cannot be assigned without the Seller’s written consent.
3.5 Any modification or partial or total cancellation of the order by the Purchaser since the creation of the sales contract, will be considered, only if it has been accepted in writing by the Seller. After a period of seven (7) days, no order may be cancelled or modified and the deposits paid remain the property of the seller. In any case, no modification or cancellation or orders by the Purchaser can relate to orders that are being prepared or those whose shipping procedure has been triggered.
3.6 It is recalled that information on catalogues, prospects, installation guidelines, scales and rates – and more generally presentation documents and product promotions of the Seller, or information given to the Seller however the form is structured – are only given on an indicative basis and non-contractual and cannot engage the Seller.
Article 4. DELIVERIES
4.1 Delivery times are only given as an indication by the Seller, when the order is made, and the responsibility of the seller cannot be held liable for late delivery. Therefore, no penalty or refund may be required against the Seller in case of late delivery.
4.2 Goods travel at the risk of the purchaser, whatever the sales conditions are, the transportation mode and shipping details. Even in the case of free transport by the seller (see transport conditions on the price document).
4.3 In accordance with the requirements of sections 442-6. L, 8e of the French Code of Commerce, the seller cannot be imposed by the Purchaser any deduction of the invoices amounts of any penalties or discounts of any kind that would be applied without the seller being notified or being able to control and recognize its responsibilities. In addition, the seller hereby excludes any application of penalties that are not proportionated to the actual damage suffered by the Purchaser due to the breach recognized by the Seller.
Article 5. RECEPTION – COMPLAINTS
Without prejudice to the provisions to be made towards the carrier in accordance with articles L133-3 and following of the Commercial Code (including mandatory notification by registered letter with acknowledgment of receipt within three days to the carrier), the Purchaser must:
- Take possession (loading and / or unloading) at the agreed location, date, and time of the products subject to the order and check their compliance with the order.
- Report at each reception all damages regarding the products (in particular by indicating their written reservations on the document in which the carrier asks the Purchaser to give him discharge of the shipment) by proving with all relevant attachment the damages, the missing products, defects. The Purchaser checks the condition, the quantity, the quality, and more generally if the products respect the actual order or the dispatch note.
- Confirm the damages noted to the Seller by registered letter with acknowledgment of receipt within forty-eight (48) hours of receipt of the products. It is up to the Purchaser to provide any justification as to the reality of the missing anomalies and apparent defects found.
Article 6. RETURNS POLICY
6.1 In accordance with the provisions of Article L 442-6.1. 8e of Code of Commerce, the Seller cannot be imposed by the Purchaser a refusal or a return of goods without the Seller being able to control the reality of the complaint. Therefore, all returned products must have expressly been agreed by the Seller. Any product returned without this agreement would be held at the disposal of the Purchaser and would not give rise to the establishment of a credit.
6.2 In case of agreement, the material will be returned prepaid, by the transportation mode chosen by the Seller, and in its original packaging in good conditions with a copy of the delivery note, installation guide or invoice as well as the return form. The return agreement will be valid during two weeks. Any return of material whose cause is not attributable to the Seller will be subject to a reduction of ten (10) % minimum with a minimum fee of ten (10) euros. This discount may be higher depending on the cause or condition of the returned merchandise. If the cause is attributable to the Seller, the cost of return will be borne by the Seller according to his beam, and no discount will be applied. All goods returned in carriage due will be automatically refused. Special orders and/ or fabrications (except catalogue) as well as all the products with an expiration date are not taken back or exchanged. Any take accepted by the Seller will result in the establishment of a credit for the benefit of the Purchaser or the replacement of products to the Seller’s choice, after qualitative and quantitative verification of the returned products, and this, excluding any damages.
Article 7. USE OF PRODUCTS
The purchaser who is a professional of the nautical sector, alone, is responsible for the selection, the storage, the assembly and the use of products purchased from the Seller. The purchaser declares being completely aware of the different information and features of a product from the Seller and recognize having the qualified staff that can handle the products use conditions.
Article 8. WARRANTY
8.1 All products are guaranteed (billing date) against any defects of materials or manufacturing defect to the exclusion of any legal warranty. They must be returned within this period to the Seller according to the terms specified in Article 6 of these conditions of sale.
8.2 Subjected to the reception or examination of the returned product, with prepaid postage, and the seller’s warranty obligation is acknowledged by the seller or demonstrated by the purchaser, it is expressly agreed between the two parties that the seller’s obligation to guarantee the product, according to Article 8.1, above, is strictly limited, at the seller’s discretion, to the obligation to replace, repair or refund the nonconforming products. In this case where the repair must be made immediately by the Purchaser or can be carried out on the spot, the Purchaser will inform the Seller for prior agreement before realizing, on pain of rejection of the guarantee. No compensation, modification, refund, manpower support for assembly and disassembly will be claimed. If the product is replaced by the Seller, the replacement product will be held at the disposal of the Purchaser under the same conditions as those defined for the same of the products. If the same price of the defective product is refunded, the refund will be in the form of a credit note.
8.3 The contractual guarantee cannot be applied in the following cases:
- The wear related to the use of the Seller’s products
- Neglect, lack of supervision or maintenance
- Use in abnormal or unsuitable conditions of the products
- Stockage in poor conditions
- Force majeure defined in the present contract
8.4 The Seller’s liability is limited to only direct material damage to the Purchaser that results from the fault attributable to the Seller on the product’s sale. Under no circumstances will the Seller be liable to compensate for immaterial or indirect damages such as: operating losses profit, chance, commercial loss, loss of profits. The Seller’s civil liability, for all causes except personal injury and gross negligence, is limited to a sum limited to the amount received by the Seller in respect of the sale of the product subject to the dispute. The parties in a contractual relationship with it, against the Seller or its insurers beyond the limits and exclusions set out above.
Article 9. PRICE
9.1 The product prices are established by reference to the current prices charged by the seller on the date of the order. These prices do not include the VAT, other taxes are at the purchaser’s responsibility.
9.2 The prices and sales conditions are subject to revision, to take into account variation of the cost of raw materials / or other element in the cost price, and regarding the prices and the present conditions and particular conditions stopped for the sales transaction. All price modification and sales conditions will take place when these prices are published on the website www.seimi.com.
Article 10. PAYMENT CONDITIONS
10.1. Orders are payable cash on delivery, except for customers who have applied for an account and after acceptance. For these clients with an account, payment deadlines are set in accordance with the provisions of the article L.441-6 of the French Commercial Code.
10.2. Invoices have to be paid in all circumstances at the Seller’s registered office.
10.3. The payments will be made by LCR directly to bank without prior agreement or any other payment method determined by the seller – the purchaser has to take all its provisions for the payment to be made for the deadline. The invoice is considered as paid when the amount is definitely credited on the seller’s bank account.
10.4. The payment time period cannot with explicit agreement be delayed for any reasons whatsoever, the complaints made by the purchaser cannot report the payment deadlines.
There is no cash discount for anticipated payment. All professional that are behind schedule for payment, in addition, late filling penalties, will have to pay a fix allowance of 40 euros (decree 2012-1115 of October 2nd 2012; c.com Art.D.441-5 nouveau).
The interest for delay will not prevent-after notifying by the seller a formal notice within 30 days- payment for the purchaser, based on a penalty clause, an allowance of an amount equal to fifteen (15) % of the remaining unpaid amount.
The purchaser will have to refund the total of the expenses incurred by the seller and incurred the contentious recovery of the sums due. Also, the non-payment of one single invoice immediately renders the remaining amount of the other invoices dues to the seller.
Any deduction and /or allowance for the purchaser are expressly excluded, except prior agreement from the purchaser. These penalties shall apply without prejudice to the application. The seller can suspend its obligations regarding an order that is delayed and all other remaining orders till complete payment that the Purchaser owes.
Article 11. FORCE MAJEURE
The seller reserves the right to suspend or cancel particularly or all of the sales, strict liability, and in case of force majeure events or fortuitous event, such as strikes, bad weather, not enough product quantities on the market, likely to stop or reduce the sale of its products or all causes non-direct and exclusively attributable to the seller. The seller will have to inform the purchaser and will not be liable to him for any compensation of any kind whatsoever.
Article 12. RETENTION OF TITLE
THE PRODUCTS IN WHICH THE SALES IS GOVERNED BY THESE CONDITIONS ARE SOLD WITH A CLAUSE EXPRESSLY SUBORDINATE THE TRANSFER OF THEIR PROPERTY TO THE FULL PAYMENT OF PRICE IN PRINCIPAL AND ACESSORIES.
It is understood that the mere surrender of a security creates an obligation to pay, treaty or otherwise, does not constitute a payment within the meaning of this clause, the Seller’s original claim against the Purchaser remaining with all the guarantees attached thereto, including retention of title until the bill of exchange has been paid according to these general conditions of sale.
The previous provisions do not preclude the delivery of the products (as defined by the present sales terms and conditions) the transfer to the Purchaser of the risks of loss or damages of the goods subject to retention of title as well as damages that they could cause.
The Purchaser must subscribe to an insurance covering all risks arising from the delivery of the products. The Purchaser hall – for products whose payment has not been made – always ensure that these are identified as property of the Seller and cannot be confused or subject to a claim by some third parties. Products in stock are presumed to be unpaid.
The Purchaser is prohibited from assigning in any form whatsoever as a guarantee, the ownership of the products. Products may be, at any time, and without the need for prior summons, taken at the expense of the Purchaser, by the Seller in the event of nonperformance of its obligations by the Purchaser, without prejudice to the payment, in favor of the Seller of any damage interest in this respect. The Seller and his carrier will therefore be allowed to enter the premises of the Purchaser to remove the good covered by the retention of title clause. This procedure is not exclusive of other actions or legal proceedings that the Seller may decide to engage.