Terms and Conditions
Article 1 – Purpose and Scope
Any product order implies the buyer’s unreserved acceptance and full and complete adherence to these general terms and conditions of sale, which prevail over any other document of the buyer, and in particular over any general terms and conditions of purchase, unless our company has expressly agreed otherwise beforehand.
The present general terms and conditions of sale apply to all sales of products by our company unless specifically agreed prior to the order in writing between the parties. Consequently, the placing of an order by a customer implies the latter’s unreserved acceptance of these general terms and conditions of sale, unless special conditions have been agreed in writing by our company to the purchaser.
Any document other than the present general conditions of sale and in particular catalogs, prospectuses, advertisements, notices, has only an informative and indicative, noncontractual value.
Article 2 – Intellectual Property
All the technical documents given to our customers remain the exclusive property of the company EWATTCH SARL, the sole owner of the intellectual property rights on these documents, and must be returned to it at its request. Our customers undertake not to make any use of these documents that could infringe on the industrial or intellectual property rights of our company and undertake not to disclose them to any third party.
Article 3 – Orders
By order, it is understood any order concerning our products appearing on our tariffs, and accepted by our company, accompanied by the payment of the deposit possibly envisaged on the purchase order. Upon receipt of the order, it is irrevocable.
Orders transmitted to our company are irrevocable for the customer, unless we accept them in writing.
Any request to modify the composition or volume of an order placed by a customer may only be taken into account by our company if the request is made in writing, including by fax or e-mail, and is received by our company no later than 8 days after receipt by our company of the initial order. In the event of modification of the order by the customer, our company will be released from the deadlines agreed for its execution.
Delivery times are given for information and guidance only, they depend in particular on the availability of carriers and the order of arrival of orders. Our company strives to respect the delivery times it indicates when accepting the order, according to the logistic reference time in the profession, and to execute orders, except in the case of force majeure, or in the event of circumstances beyond its control, such as strikes, frost, fire, storm, flood, epidemic, supply difficulties, without this list being exhaustive. Delays in delivery cannot give rise to any penalty or indemnity, nor can they be grounds for cancelling the order.
Any delay in relation to the indicative delivery times initially planned does not justify a cancellation of the order placed by the customer and recorded by our company.
The transfer of risks on the products sold by our company takes place when the products are handed over to the carrier or when they leave our warehouses.
It is up to the customer, in the event of damage to the goods delivered or missing goods, to make all necessary reservations with the carrier. Any product that has not been the subject of reservations by registered letter with acknowledgement of receipt within 3 days of receipt from the carrier, in accordance with Article L. 133-3 of the Commercial Code, a copy of which will be sent simultaneously to our company, will be considered accepted by the customer.
Without prejudice to the measures to be taken by the customer vis-à-vis the carrier as described in Article 4.3, in the event of apparent defects or missing items, any complaint, of whatever nature, concerning the products delivered will only be accepted by our company if it is made in writing, by registered letter with acknowledgement of receipt, within the 3-day period provided for in Article 4.3.
It is up to the buyer to provide all the justifications as to the reality of the defects or missing items observed.
No return of goods may be made by the customer without the express prior written consent of our company, obtained in particular by fax or e-mail. The return costs will only be borne by our company if an apparent defect, or missing items, is actually noted by the latter or its representative. Only the carrier chosen by our company is authorized to return the products concerned.
When, after inspection, an apparent defect or a missing item is found by our company or its representative, the customer may only ask our company to replace the non-compliant items and/or to make up the missing items at our company’s expense, without the customer being able to claim any compensation or to cancel the order.
The reception without reserve of the products ordered by the customer covers any apparent and/or missing defect. Any reservation must be confirmed under the conditions set out in Article 4.4.1.
The complaint made by the purchaser under the conditions and according to the modalities described in this article does not suspend the payment by the customer of the goods concerned.
The responsibility of our company can in no case be called into question for facts during transport, destruction, damage, loss or theft, even if it has chosen the carrier.
4.5 Suspension of deliveries
In the event of non-payment in full of an invoice that has fallen due, after formal notice has been given and remains without effect within 48 hours, our company reserves the right to suspend any current and/or future delivery.
4.6 Cash payment
All orders that we accept to execute are executed, taking into account the fact that the customer presents sufficient financial guarantees, and that he will actually pay the sums due when they fall due, in accordance with the legislation. Also, if our company has serious or particular reasons to fear payment difficulties on the part of the customer on the date of the order, or afterwards, or if the customer does not present the same guarantees as on the date of acceptance of the order, our company may make the acceptance of the order or the continuation of its execution subject to cash payment or to the provision, by the customer, of guarantees in favor of our company. Our company shall also have the right, before accepting any order, as in the course of execution, to require the customer to provide its accounting documents, and in particular the income statements, even forecasts, enabling it to assess its solvency. In case of refusal by the customer of the cash payment, without any sufficient guarantee being proposed by the latter, our company may refuse to honour the order(s) placed and to deliver the goods concerned, without the customer being able to argue an unjustified refusal of sale, or to claim any indemnity.
4.7 Refusal of order
In the event that a customer places an order with our company, without having proceeded to the payment of the previous order(s), our company may refuse to honour the order and to deliver the goods concerned, without the customer being able to claim any compensation for any reason whatsoever.
Article 5 – Tariff – Price
5.1 Choice of the tariff grid according to the customer
An “Installer/Installer” customer installs, configures and implements EWATTCH solutions and products. This customer benefits from the installer/integrator price list. A “distributor/importer” customer promotes, runs a sales network and participates in trade shows. In addition, he must be able to place executive orders for 100 pieces with a production rate of more than 10 pieces, in order to benefit from the distributor/importer price list. If the orders do not reach this volume, he benefits from the installer/integrator rates.
The current rate may be revised at any time, after prior information of our customers.
Any rate change will automatically be applicable on the date indicated on the new rate.
See document ” EWATTCH Tarifs Pro France 2016_RevH.pdf ” for installers and integrators. See document ” EWATTCH Importers/Distributors Tariffs 2016_RevD.pdf ” for importers and distributors.
Our prices are fixed by the tariff in force on the day the order is placed. They are always exclusive of tax, unpackaged products.
Our prices are free of postage, unless otherwise expressly agreed with the customer. The fact that the shipment is made “free” or that the seller or a commission agent has carried out, on behalf of the customer, the shipment of the order does not modify the above rules and the effects attached to the date of availability of the goods in our stores.
They are calculated net, without discount, and payable in cash for the first order, and 30 days following the date of invoice issue. For prices specified by quantity, any order for a smaller quantity will result in a change in the price indicated.
Unless otherwise agreed, delays in delivery do not entail cancellation or modification of the contract. They shall not give rise to damages. Penalty clauses appearing on the commercial papers of our customers are unenforceable against us.
The execution deadlines appearing in an order are only accepted by our company and commit it under the following conditions: compliance by the customer with the terms of payment and payment on account, timely supply of technical specifications, no delay in studies or preparatory work, no cases of force majeure, social, political, economic or technical events hindering the operation of our factories or their supply of components, energy or raw materials.
Unless otherwise agreed, the packaging is determined and prepared by our company. They are invoiced in addition to the prices indicated and are not taken back.
Article 6 – Terms of payment
Our invoices are payable on the due date indicated on them. Only the effective collection of bills of exchange or LCR will be considered as full payment within the meaning of these general conditions of sale.
Any amount including all taxes not paid on the due date will give rise to the payment by the customer of penalties set at three times the legal interest rate. These penalties are due automatically and will be automatically debited from the customer’s account.
In addition, our company reserves the right to bring an action before the competent court in order to have this non-performance stopped, subject to a daily penalty for each day of delay.
Article 7 – Retention of title
The transfer of ownership of our products is suspended until full payment of their price by the customer, in principal and accessory, even if payment deadlines are granted. Any clause to the contrary, notably inserted in the general conditions of purchase, is deemed unwritten, in accordance with article L. 624-16 of the French Commercial Code.
By express agreement, our company may exercise the rights it holds under this retention of title clause, for any of its receivables, on all of its products in the customer’s possession, the latter being conventionally presumed to be those unpaid, and our company may take them back or claim them as compensation for all its unpaid invoices, without prejudice to its right to cancel sales in progress.
The purchaser is authorized, within the framework of the normal operation of its establishment, to resell the delivered goods. However, he may neither pledge them nor transfer ownership by way of security. In the event of resale, the purchaser undertakes to pay our company immediately the part of the price remaining due.
Our company may also require, in case of non-payment of an invoice on the due date, the cancellation of the sale after sending a simple formal notice. Likewise, our company may unilaterally, after sending a formal notice, draw up or have drawn up an inventory of its products in the possession of the customer, who undertakes, as of now, to allow free access to its warehouses, stores or others for this purpose, ensuring that the identification of the company’s products is always possible.
In the event of the opening of receivership proceedings or liquidation of assets, current orders will be automatically cancelled, and our company reserves the right to claim the goods in stock.
This clause does not prevent the risk of the goods from being transferred to the buyer upon delivery to the buyer.
From the date of delivery, the purchaser is constituted depositary and custodian of the said goods. In the event of non-payment and unless we prefer to request full and complete execution of the sale, we reserve the right to cancel the sale after formal notice and to claim the goods delivered, the return costs remaining the responsibility of the buyer and the payments made being acquired by us as a penalty clause.
Article 8 – Warranty of apparent and hidden defects
The products must be checked by the customer upon delivery, and any complaint, reservation or dispute relating to missing or apparent defects must be made under the conditions set out in Article 4. In the event of apparent defects, the defective parts shall be replaced by us, subject to verification of the alleged defects. The customer will have to provide any justification as to the reality of the defects observed, our company reserving the right to proceed, directly or indirectly, to any on-site observation and verification.
The denunciation of defects existing at the time of delivery, and revealed after the reception of the products, must be formulated by the customer in writing within 3 days following the date on which he will have discovered the defect of conformity. No denunciation will be taken into account if it is made more than 3 clear days after delivery of the products.
No action for non-conformity can be taken by the customer more than 30 days after delivery of the products. It is expressly agreed by the customer’s acceptance of these general terms and conditions of sale that after the expiry of this period, the customer may not invoke the non-conformity of the products, nor oppose it as a counterclaim to defend itself in an action for debt collection initiated by our company. If these conditions are not respected, the responsibility of our company towards the customer, due to a hidden defect, cannot be called into question.
Defects and deterioration of the delivered products resulting from abnormal conditions of storage and/or conservation at the customer’s premises, in particular in the event of an accident of any nature whatsoever, shall not entitle the customer to the guarantee due by our company.
Under the guarantee of hidden defects, our company will only be held to replace, free of charge, defective goods, without the customer being able to claim damages, for whatever reason.
Our company guarantees its products against hidden defects, in accordance with the law, customs, jurisprudence, and under the following conditions. Our guarantee only applies to products that have regularly become the property of the buyer. It applies only to products entirely manufactured by our company. It is excluded when our products have been used in conditions of use or performance not intended. Our guarantee only covers hidden defects. Our customers being professionals, the latent defect means a defect in the product making it unfit for its use and not likely to be detected by the buyer before its use. A design defect is not a latent defect and our customers are deemed to have received all technical information relating to our products. We do not cover damage and wear and tear resulting from special adaptation or assembly, whether abnormal or not, of our products, unless it was carried out under our supervision. Our warranty is limited to the replacement or repair of defective parts. Our warranty is limited to the first six months of use. Our parts are deemed to be used by our customers at the latest within 3 months of availability. In any case our customers must prove the date of the beginning of use. Our warranty shall automatically cease at the end of this period. Our warranty shall automatically cease if our customer has not notified us of the alleged defect within 20 clear days of its discovery. The onus is on the customer to prove the date of discovery.
Article 9 – Force Majeure >/strong>
Are considered as force majeure or fortuitous events, events beyond the control of the parties, which they could not reasonably be required to foresee, and which they could not reasonably avoid or overcome, insofar as their occurrence makes the performance of the obligations totally impossible.
Are notably assimilated to cases of force majeure or fortuitous events discharging our company from its obligation to deliver within the initially planned deadlines: strikes by all or part of the staff of our company or its usual carriers, fire, flood, war, production stoppages due to fortuitous breakdowns, the impossibility of being supplied with raw materials, epidemics, thaw barriers, roadblocks, strikes or disruption of EDF-GDF supply, or disruption of supply for a cause not attributable to our company, as well as any other cause of disruption of supply attributable to our suppliers.
In such circumstances, our company will notify the customer in writing, in particular by fax or e-mail, within 24 hours of the date of occurrence of the events, the contract between our company and the customer being then suspended by right without indemnity, as of the date of occurrence of the event.
If the event lasts more than 30 days from the date of its occurrence, the sales contract concluded by our company and its client may be terminated by the most diligent party, without either party being able to claim damages. Such termination shall take effect on the date of first presentation of the registered letter with acknowledgement of receipt denouncing the said sales contract.
Article 10 – Renunciation of the right to cancel the contract.
The fact that our company does not avail itself at a given time of any one of the clauses of the present document cannot be considered as a waiver of the right to avail itself of these same clauses at a later date.
Article 11 – Applicable law
Any question relating to these general terms and conditions of sale and the sales they govern, which would not be dealt with by these contractual stipulations, will be governed by French law to the exclusion of any other law, and as a supplement, by the Vienna Convention on the International Sale of Goods.