General Term of Sale and Guarantee for ETS SAFAR
PREAMBULE
Any sale made by ETABLISSEMENTS SAFAR (hereinafter referred to as : ETS SAFAR") implies the Buyer's unreserved acceptance of these General Terms and Conditions of Sale (hereinafter the "ToS") Any contrary term enforced by a buyer (hereinafter ‘Buyer’) shall therefore not be enforceable on ETS SAFAR unless expressly accepted, regardless of the moment when it was brought to its attention.
These Terms of Sale take precedence over any general purchase terms or any other document issued by the Buyer regardless of the terms, unless ETS SAFAR has expressly accepted these documents in writing beforehand. Any document other than the ToS including catalogues, prospectuses, advertising or notices are not enforceable and are only for information purposes and are not contractually binding.
The fact that the ETS SAFAR does not avail itself at any given moment of any clause in these ToS cannot be construed as a waiver of any of these clauses at a later date.
The Terms of Sale can be modified at any time. Only those in effect on the day of the order are enforceable against the Buyer.
Article 1 – OFFERS
Any offer (= quotation) issued by ETS SAFAR is valid for 30 days after its issue.
Article 2 – ORDERS
Orders sent in writing to ETS SAFAR (including any quotation approved by the Buyer) are irrevocable for the Purchaser.
Any request to change the composition or the volume of an order issued by the Buyer may only be taken into account by ETS SAFAR if the request is made in writing and if ETS SAFAR has given its express acceptance.
Additional supplies added to the order shall be subject to a new order mentioning the associated prices, conditions, delivery times, etc.
If the Buyer modifies the initial order, and ETS SAFAR accepts it, new delivery times will be proposed, with this modification resulting in a price change.
Article 3 – PRICE
The prices can be found in the price list. Prices are given in euros, excluding VAT (retail price list) in effect at the time the order is issued.
For any order to France, the products are invoiced at the VAT rate that is applicable at the time of its issue, with any change to this rate due to legislative provisions or regulations shall be automatically passed on. Any tax, duty (eco-contribution) or other charge payable under French legislation or regulations shall be borne by the Buyer.
For all orders outside France, any tax, duty or other charge payable pursuant to French laws and regulations, or those of an importing country or a transit country, shall be borne by the Buyer.
Article 4– PAYMENT
4.1 Payments must be made in euros and sent to the registered office of ETS SAFAR at 30 Rue des Saulniers, 35370 Argentré-du- Plessis. The due date is shown on the invoice.
Unless ETS SAFAR has previously given its prior written consent, all invoices are payable within 30 days of the invoice date. Payment deadlines are mandatory and are shown on the invoices.
Payment of a deposit of 30% of the price will be required on acceptance of the order for all Buyers placing their first order or in the event of a deterioration in customer credit. If the Buyer cancels the order, the deposit paid with the order will automatically accrue to ETS SAFAR and will not give rise to any refund. Under no circumstances may a deposit be considered as a down payment. No discount will be granted for early payment.
4.2 In accordance with the provisions of Article L.441-10 of the French Commercial Code, any invoice not paid by the due date will incur penalties at 10 basis points above the interest rate applied by the European Central Bank to its most recent refinancing operation. These penalties will be charged according to the number of days elapsed between the due date and the effective date that full payment is made.
Without affecting the foregoing, the Buyer's failure to pay on the due date will automatically result in all sums not yet due
becoming payable.
For payments made by commercial paper, failure to return the commercial paper will be considered as a refusal of acceptance, which is equivalent to defaulting on payment.
In addition, without affecting any other damages, in the event of late payment, the Buyer will automatically be liable to pay a fixed indemnity of €40 for debt collection costs, in addition to late payment penalties.
Furthermore, in case of non-payment and unless ETS SAFAR prefers to ask for the forced execution of the sale, ETS SAFAR reserves the right to cancel the sale 48 hours after sending a formal notice and to recover the delivered product. the return costs shall be at the Buyer's expense and the payments shall accrue to ETS SAFAR as compensation, without affecting any other damages.
Article 5 – TITLE RETENTION
IN ACCORDANCE WITH THE PROVISIONS OF ARTICLES 2367 AND SEQ. OF THE CIVIL CODE, THE PRODUCTS REMAIN THE PROPERTY OF ETS SAFAR UNTIL PAYMENT OF THE ORDER, IN PRINCIPAL AND OTHER CHARGES IS MADE IN FULL.
In the event of non-payment of all or part of the price on the due date, the Buyer is formally prohibited from continuing to use or sell the products, since ETS SAFAR retains the title to the sales contract for which the price has not yet been definitively paid or effectively collected. Payment means the actual collection of the sum due and not the delivery of a bill of exchange or other types of security creating an obligation to pay.
In the event that the Buyer fails to make payment in full or in part on a due date, ETS SAFAR may demand the Buyer to return of all products corresponding to the orders that have not yet been effectively paid and collected.
During the title-retention period, the goods sold must be insured by the Buyer against all risks of damage and liability caused by or suffered by the goods.
In the event of suspension of payments, filing for bankruptcy, insolvency proceedings (bankruptcy protection, receivership or court-ordered liquidation), amicable settlement or declaratory judgement against the Buyer, the latter must notify ETS SAFAR without delay so that the products sold, but not yet fully paid for or effectively collected can be identified and subject to an inventory in order to apply the title retention clause, if applicable.
Article 6 – DELIVERY AND SHIPPING
6.1 Delivery charges
Delivery charges are applied according to the price list, except in the case of transport provided by the Buyer on the prior written acceptance of ETS SAFAR.
6.2 Delivery times
Delivery times depend in particular on the availability of carriers and the order in which orders arrive. ETS SAFAR will endeavour to honour orders received and to confirm the delivery date as soon as possible. The delivery times given to the Buyer are purely indicative.
Under no circumstances may a delay in delivery constitute grounds for damages of any kind or justify cancellation of the
order or withholding of all or part of the price. In any case, delivery on time may only occur if the Buyer is up to
date with its obligations towards ETS SAFAR, regardless of the reason.
ETS SAFAR will send the final proofs of products that include the logos, trademarks or commercial name of the Buyer, before production commences. The Buyer must accept the final proofs before the product goes into production. The Buyer must approve them or send its changes to ETS SAFAR, no later than 15 days from receipt of the final proofs. Any modification of the product/branding after validation of the final proof by the Buyer will be subject to an additional invoice at the rate in effect.
Article 7 – TRANSFER OF RISK
The products shall remain ETS SAFAR's property until the Buyer has paid the price in full. The transfer of risks for the products shall take place on delivery to the Buyer’s address. The Buyer must take out insurance for the delivered product even if the ownership of the product has not yet been transferred, due to nonpayment of the full order price. In this case, the beneficiary of the insurance must be ETS SAFAR.
ETS SAFAR shall cease to be liable once the Buyer has received or taken charge of the equipment.
If the Buyer is responsible for shipping, the transfer of risks for the products will take place as soon as the product is handed over to the Buyer or to the carrier appointed by the Buyer.
Article 8 – ACCEPTANCE
The Buyer is responsible for making any necessary remarks on the carrier’s delivery note upon receipt due to damage to products delivered by ETS SAFAR or missing products. On delivery, the Buyer is strongly advised to notify the carrier of any reservations regarding the packaging and, where applicable, the condition of the products (e.g. open and/or damaged packaging). If the product is damaged on delivery, the Buyer must check the condition of the products in the presence of the carrier before signing the delivery note and write any detailed reservations on the carrier's delivery note.
These reservations must be confirmed by an extrajudicial document or by registered letter with acknowledgement of receipt to the carrier within 48 hours of receipt of the product. Without affecting the measures to be taken with regard to the carrier, as described above, if the delivered product has any visible defects or lack of conformity, any complaint of whatever nature about the delivered products shall only be accepted if it is made in writing and sent by registered post with acknowledgement of receipt to ETS SAFAR.
This claim must be made no later than 48 hours after the Buyer receives the products. If the Buyer or its carrier collects the products from the offices of ETS SAFAR, acceptance occurs when the products are handed over to the carrier or to the Buyer.
The burden of proof lies with the Buyer with respect to any defects or shortages. The Buyer must allow ETS SAFAR or its
representative every facility to carry out, or have carried out, any observations it deems necessary. ETS SAFAR or any person duly authorised by it may carry out these checks and verifications.
Article 9 – PRODUCT RETURNS
The Buyer may not return any product without the express prior written agreement of ETS SAFAR, obtained in particular by e-mail. ETS SAFAR will bear the cost of returning the goods if a conformity defect in or manufacturing fault is duly noted.
Only the carrier chosen by ETS SAFAR is authorised to return the products in question.
Article 10 – GUARANTEE - LIABILITY
10.1 ETS SAFAR gives no guarantee for visible defects, that are found after normal examination of the product, which may affect the product delivered and which the Buyer has not reported under the conditions stipulated in Article 7.
10.2 ETS SAFAR guarantees its products against any hidden defects resulting from structural or manufacturing faults which render them unsuitable for their intended use.
This guarantee against hidden defects applies:
- to carpets and car covers: for a period of 12 months starting from either the delivery of the product to the Buyer or the handover of the product to the Buyer or to the carrier appointed by the Buyer,
- to covers and ready-made products: for a period of 24 months from the date the product is delivered to the Buyer
or from the date on which the product is handed over to the Buyer or to the carrier appointed by the Buyer, - to canvas elements which reinforce the cover: for a period of 36 months starting from either the product being
delivered to the Buyer or being handed over to the Buyer or to the carrier appointed by the Buyer, - to any product other than those mentioned above: for a period of 6 months starting from either the product being
delivered to the Buyer or being handed over to the Buyer or to the carrier appointed by the Buyer.
Only this guarantee applies, to the exclusion of any other, even statutory guarantees.
In order to assert their rights, the Buyer must inform ETS SAFAR, in writing, of the existence of the defects no later than 30 days from their discovery, or risk forfeiting any related lawsuit.
This guarantee is limited to repairing or replacing the defective product, with a similar or identical product, or replacing the parts which render it unfit for use, as soon as possible and at ETS SAFAR’s expense, in particular for parts and labour.
No guarantee shall cover:
- the abnormal use, improper storage of the products or special use of the product not specified in the order,
- alteration or accident caused by impact, damage, dropping, negligence, intentional or unintentional tearing, lack of
supervision or maintenance, - the product being repaired by a third party not approved by ETS SAFAR,
- the product being transformed or modified,
- misuse, lack of maintenance or non-compliance with the user manual and recommendations.
In all cases, the guarantee is limited to replacing or repairing the defective parts, and cannot under any circumstances give rise to damages. The replacement of defective products or parts will not extend the duration of the above guarantee.
ETS SAFAR cannot be held liable for physical or material damage of any nature whatsoever resulting from improper use of the products by the Buyer. The liability of ETS SAFAR is limited to the obligations set out above and it will not be liable to the Buyer to compensate for any loss suffered or damage to goods other than those covered by these terms of use or for loss profits, nor will it be liable to compensate for any immaterial and/or indirect damages which the Buyer may claim. The guarantee automatically ceases if the Buyer has carried out modifications or repairs on the products at its own initiative and without the express agreement of ETS SAFAR or the manufacturer
L’ETS SAFAR n’est pas tenue responsable des dommages corporels ou matériels de quelque nature que ce soit résultant d’une mauvaise utilisation des produits par l’Acheteur. La responsabilité de l’ETS SAFAR est limitée aux obligations ainsi définies et ne serait être tenue à indemnisation, envers l’Acheteur pour tout préjudice subi ou dommages à des biens distincts de l’objet des présentes ou d’un manque à gagner, elle ne sera tenue à indemniser les dommages immatériels et/ou indirects dont l’Acheteur pourrait se prévaloir. La garantie cesse de plein droit si l’Acheteur a effectué des modifications ou des réparations sur les produits de sa propre initiative et sans l’accord express de l’ETS SAFAR ou du fabricant.
10.3 ETS SAFAR accepts no liability for the products sold, if, despite conforming to the legislative and regulatory standards in force in France, they prove to be unsuitable for the use the Buyer makes of them and if the products comply with the standards and regulations of a foreign country.
Article 11 – APPLICABLE LAW - JURISDICTION
The ToS and all contracts between the contracting parties are governed exclusively by French law.
In the event of a dispute, the parties will attempt to reach a preliminary agreement within 15 days from the date on which the dispute arose.
IF NO AMICABLE AGREEMENT CAN BE REACHED, THE PARTIES EXPRESSLY AGREE THAT THE COMPETENT COURT SHALL BE THE COMMERCIAL COURT OF RENNES, EVEN IN THE EVENT OF A THIRD-PARTY CLAIM OR MULTIPLE
DEFENDANTS.
If any one of the stipulations of these ToS is considered or declared by a court decision to be illegal, null, inapplicable,
unenforceable, null and void or unwritten, the other stipulations of the GCS shall remain in full force and effect. In this case, the Parties will negotiate in good faith in order to, if possible, replace the invalid, unenforceable, null and void, illegal or inapplicable stipulation with a lawful stipulation that corresponds to the spirit and purpose thereof.
Article 12 - LANGUAGE
The Terms of Sale are written in French. If it is translated into another language, the French version shall prevail and be binding in the event of a dispute.
Article 13 – DATA PROTECTION ACT
Personal data collected from Buyers is processed by ETS SAFAR. The data is saved in the Customer files and are essential for processing the order. This information and personal data are also kept for security purposes, in order to comply with legal and regulatory obligations. It will be kept for as long as is required to fulfil orders and any applicable guarantees.
The data controller is ETS SAFAR. Access to personal data will be strictly limited to the data controller's employees who are authorised to process such data by virtue of their duties. The information collected may be communicated to third parties contractually linked to the company to perform the subcontracted tasks, without requiring the Buyer's authorisation.
In the course of providing their services, third parties have only limited access to the data and are obliged to use it in accordance with the provisions of the applicable legislation on personal data protection. Apart from the cases set out above, ETS SAFAR will not sell, rent, transfer or give access to third parties to the data without the prior consent of the Buyer, except where all or part of the company is sold or unless forced to do so for a legitimate reason.
If the data is transferred outside the EU, the Buyer will be informed and the guarantees taken to secure the data (for example, the external service provider's adherence to the "Privacy Shield", adopting standard protection clauses validated by the CNIL, adopting a code of conduct, obtaining CNIL certification, etc.) will be specified.
In accordance with the applicable regulations, the Buyer has the right to access, rectify, delete and port data concerning them, as well as the right to object to the processing for a legitimate reason. These rights may be exercised by contacting the data controller at the following postal or e-mail address: contact@groupesafar.com
For any information, the Buyer may contact the CNIL by logging on to www.cnil.fr.
L’Acheteur peut pour toutes informations contacter la CNIL, en se connectant sur www.cnil.fr.
Article 14 – INTELLECTUAL PROPERTY
14.1 ETS SAFAR retains all industrial and intellectual property rights relating to the Products, drawings, photos and technical documentation, which may not be disclosed or used without its written authorisation. ETS SAFAR makes every effort to ensure that the photographs appearing in its catalogues and on its website give as close an idea as possible of reality. However, these photographs are merely indicative and have no contractual value.
14.2 The Buyer declares that it holds all intellectual property rights and authorisations for all items (brands, logos, drawings, texts, etc.) that it may transmit to ETS SAFAR for marking the products. The Buyer undertakes to ensure that the items supplied do not contravene any laws or regulations in force or offend public decency. However, if the Buyer does not have intellectual property rights but does have a user license, the Buyer undertakes to provide proof of such license as well as the explicit authorisation of the licensor with respect to ETS SAFAR’s intervention. The Buyer releases ETS SAFAR from any liability it may incur in this respect and will hold it harmless for any prejudice it may suffer and indemnify it against any disturbance, claim or action whatsoever and will accept sole liability for any dispute or challenge in this respect.
Article 15 – FORCE MAJEURE
The parties shall not be held liable if the non-performance or the delay in the performance of any of their obligations, as described herein, is the result of a case of force majeure, presenting the characteristics of unforeseeability, irresistibility and exteriority defined by Article 1218 of the French Civil Code and French case law.
The party suffering such an event must immediately inform the other party of its inability to perform and furnish proof of its occurrence to the latter. The suspension of obligations shall under no circumstances be a cause of liability for nonperformance of the obligation in question, nor lead to the payment of damages or late payment penalties.
The following in particular are considered to be cases of force majeure: strikes, fire, floods, serious accidents involving
equipment or tools, mobilisation, war, epidemics, interruptions to shipping for any reason whatsoever, including lack of drivers, shortage of raw materials, changes to customs regulations.