ARTICLE 1 – PURPOSE AND SCOPE
1.1. These general terms and conditions of sale apply to all sales of equipment and deliveries of services entered into by Airwell Residential SAS (hereinafter the “Vendor”), a simplified joint stock company (société par actions simplifiée) with a capital of 2,500,000 euros whose registered office is located at 3, avenue du Centre Les Quadrants, Bâtiment A 78280 Guyancourt, France, entered in the Versailles trade and companies register under number 752 800 862.
1.2. “Equipment” refers to finished products, accessories, and spare parts.
1.3. Any order implies full and unconditional acceptance of these general terms and conditions of sale, which prevail over any other document of the buyer, particularly its general terms and conditions of purchase, unless otherwise expressly agreed beforehand by the Vendor.
1.4. If the Vendor does not invoke any one of the clauses of the general terms and conditions of sale at a given moment, this may not be interpreted as a waiver of its rights to invoke such clauses or these general terms and conditions of sale subsequently.
ARTICLE 2 – GENERAL INFORMATION: CATALOGUES, DOCUMENTATION
2.1. Because of the speed of the technological evolution and the evolution of standards or improvements regarding security in the field in question, any information, indication, or item of value transmitted on any medium, whether it comes from the manufacturer or the Vendor, is given for information purposes only. These parties reserve the right to make any modification to the equipment whose etchings, photographs, or drawings appear on such documents, at any time and without notice. No document provided by the Vender is considered a contractual element, and the Vendor cannot be held liable for such documents.
2.2. Where the selection of the proposed equipment is done by the Vendor on the basis of information provided by the informed professional buyer, the buyer is always responsible for ensuring that the characteristics of the equipment proposed by the Vendor are actually suitable for its needs, with regard to both performance and the possibilities of implementation. In addition, if the buyer resorts to the collaboration of the Vendor’s engineers or technicians for a study or project, the Vendor may not be held responsible, and the buyer undertakes to consult an expert in the field for, among other things, the selection and sizing of the equipment and its installation and commissioning.
2.3. The buyer must not modify the markings affixed on the equipment or packaging, add any other marking, or use the Vendor’s markings, names, or trademarks in any way not expressly authorised.
ARTICLE 3 – ORDERS AND QUOTATIONS
3.1. Orders are firm. Once accepted, the order or quotation may only be modified or cancelled by the buyer with the Vender’s prior express consent. The buyer shall be liable for any order cancellation, even partial, and the Vendor shall be entitled to compensation in the form of a penalty set in the amount of the cancelled order, without prejudice to all other damages.
3.2. Any acceptance of an order or quotation must be written. Sales are finalised only after the express acceptance materialised by the Vendor’s issue of an acknowledgement of receipt of the buyer’s order. The Vendor reserves the right to accept or reject any order within a maximum of five business days from its receipt.
3.3. The buyer must check the acknowledgement of receipt of the order and report any error or omission to the Vendor within a maximum period of 48 hours from its receipt. Beyond this period, the order becomes final for the buyer. If a buyer places an order with the Vendor, without having paid for its previous order(s), the Vendor may refuse to honour the order and deliver the equipment in question, without the buyer being able to claim any compensation for any reason whatsoever.
3.4. The Vendor reserves the right, even after partial fulfilment of an order, to require guarantees or to cancel the order(s) or balances of orders in progress in the name of the buyer, without any compensation any kind, in the following cases: deterioration of the buyer’s credit, failure to file documents and instruments with the registry of the commercial court, downgrading of the buyer’s rating by the Vendor’s credit department, refusal of a credit insurer or a factor to cover the amount of the sale, change or modification in the financial or legal capacity of the buyer, registrations or liens on the buyer’s business or in general, in case of a change in the buyer’s situation.
ARTICLE 4 – DELIVERY AND TRANSPORT
4.1. Deliveries in mainland France, excluding express deliveries, of an amount greater than 500 euros are considered inclusive of postage. The equipment is delivered when it is unloaded at the dock at the buyer’s address indicated on the acknowledgement of receipt of the order. Any other unloading method shall be the responsibility of the buyer. The Vendor may make full or partial deliveries.
4.2. The delivery lead times are given for information purposes only. In no case may exceeding the lead times justify the cancellation of the order or the awarding of damages. However, if the equipment still has not been delivered two months after a formal notice has remained unsuccessful, for any other cause other than force majeure (as defined in article 6.2), the order may then be cancelled at the request of either party; the buyer may obtain a refund of its advance payment to the exclusion of any other compensation or damages.
4.3. In accordance with Article 133-3 of the French commercial code, any delivered equipment that was not the subject of reservations by registered letter with acknowledgement of receipt within three days following the date of such receipt (not including holidays) to the transporter, a copy of which shall be simultaneously sent to the Vendor, shall be considered accepted by the buyer.
ARTICLE 5 – RECEIPT AND RETURN OF EQUIPMENT
5.1. Complaints about apparent defects or the non-conformity of the delivered equipment must be expressed in detail on the delivery slip and by registered letter with acknowledgement of receipt and sent to the Vendor’s registered office within 72 hours following the delivery. Beyond this period, the received equipment shall be considered conforming to the order. It shall be up to the buyer to provide, with its complaint, any justification as to the reality of the noted defects or anomalies. The buyer shall give the Vendor every opportunity to investigate such defects and find a solution.
5.2. In any case, the buyer may not return the equipment without authorisation from the Vendor. The Vendor shall be responsible for the costs and risks of the return solely in the event that an apparent defect or missing items are actually noted by it or its representative. If a claim proves justified, the return shall be the subject of an exchange or a credit memo, at the Vendor’s choice, without the ability to demand any compensation or damages in any capacity whatsoever. Any return of equipment previously accepted due to the buyer, including but not limited to an order error or incorrect information communicated for a calculation or an order made by the buyer, shall automatically result in a discount of 20% of the amount of the equipment in question excluding taxes in order to take account of the costs of repackaging and any other charges, including trans- port, generated by this return. The buyer shall be responsible for the return transport.
ARTICLE 6 – WARRANTIES – LIMITATION OF LIABILITY
6.1 The contractual warranty applies only if the buyer is completely up to date with its payment obligations.
6.2. The warranty does not apply: (i) if the problem arises from spare parts supplied by the buyer or a design imposed by it; (ii) if the equipment and/or accessory has been modified or repaired by the buyer or by a third party without the Vendor’s written approval; (iii) to wear parts, consumables, corrosions and abrasions due to conditions of use contrary to the Vendor’s specifications or a use not conforming to the equipment’s intended purpose that has not been brought to the Vendor’s knowledge; (iv) if the equipment is not used in accordance with its intended purpose and/or the professional standards and the Vendor’s instructions; (v) if the equipment has not been installed according to professional standards by a professional installer confirmed to be authorised to handle refrigerants; (vi) if the equipment was not the subject of an annual maintenance contract by an authorised professional; (vii) in case of damage occurring during the handling of the equipment after delivery (viii) for any incident resulting from a case of force majeure as defined below: Cases of force majeure, in addition to those usually upheld by the case law of the French courts, include strikes, lock-outs, attacks, inclement weather, epidemics, blocking of means of transport and sup- ply, earthquakes, fires, storms, floods, water damage, government or legal restrictions, disruptions in telecommunications including the switched network of telecommunications operators, and any other case outside the control of the parties, preventing the normal performance of this contract. The Vendor shall immediately inform the buyer of the events listed hereinabove.
6.3. Finished products and spare parts are guaranteed against any manufacturing defect for a period of one year from the date of delivery, unless specific warranty conditions are granted on certain equipment ranges by the Vendor. Interventions under the contractual warranty shall not result in the extension of its duration.
6.4. Under the contractual warranty or the warranty for hidden defects, the Vendor’s sole obligation shall be, according to its choice, free replacement or repair of the equipment or the com- ponent recognised as defective by its personnel. Any equipment covered by the warranty must first be sent to the Vendor’s after-sales service department, whose approval is essential for any replacement. The buyer remains responsible for any travel, labour, and handling costs for the replacement of parts under warranty as well as transport costs and the consumables.
6.5. In all cases, regardless of the problem encountered, no damages shall be due for operating losses or direct or indirect tangible or intangible damage, consecutive or otherwise.
6.6. The Vendor undertakes to supply spare parts to the buyer for a maximum period of three years from the delivery of the equipment, unless otherwise specified.
ARTICLE 7 – PRICE – TARIFFS – PRICE REDUCTIONS
7.1. Unless otherwise provided, prices are indicated in euros excluding taxes and including ship- ping for deliveries in mainland France, with the exception of (a) orders for an amount less than 500 euros, for which the transport shall be invoiced in addition to the price, (b) special packaging, and (c) express deliveries.
7.2. Equipment is sold on the basis of the Vendor’s tariffs in force as at the date when each order is placed, or as at the date of issue of each quotation, subject to a delivery occurring no later than the end of the second calendar month following that date. Beyond that period, any price change before delivery shall be automatically applicable.
7.3. No discount shall be applied by the Vendor for cash payment or for payment earlier than the period indicated in these general terms and conditions of sale or on the invoice issued by the Vendor.
7.4. Unless otherwise agreed, the Vendor may grant the buyer discounts on the prices in force, including in the form of premiums, at the time when the order is placed, depending on the turnover excluding taxes generated annually or over a given period, and/or the quantity/nature of the purchased finished products and/or services possibly rendered by the buyer. These discounts may be fixed and/or gradual and may vary according to the categories of buyers.
7.5. If one of the criteria for application of these price reductions or any one of the clauses of these terms and conditions of sale is not met, the elimination of the benefit of such price reductions shall be immediately retroactive over the entire year in question. Consequently, if price reductions have already been applied by the Vendor during the year in question, they must be returned by the buyer on simple request.
ARTICLE 8 – PAYMENT TERMS
8.1. Invoices are payable within a maximum period of 45 days, end of month, or 60 days from the invoice issue date. For summarised invoices published at the end of the month, the period must not exceed 45 days from the invoice issue date (article L. 441-6 of the French commercial code). The Vendor reserves the right to require one or more advance payments when the order is placed and/or before shipment. Any commercial paper (bill of exchange or promissory note) presented for acceptance must be returned within eight clear days of its receipt by the buyer.
8.2 In accordance with Articles L. 441-3, L. 441-6, and D. 441-5 of the French commercial code, any payment delay automatically results in, in addition to late payment penalties at a rate equal to three times the statutory interest rate (i.e., 2.67% at 1 January 2018 updated each half-year period by the Minister of the Economy, with the understanding that this rate shall apply to the amount of the invoice including all taxes), an obligation for the debtor to pay 40 euros in recovery charges if the invoice has not been settled on the day following the payment date appearing on the invoice. In addition, in case of a late payment or a partial payment, (i) the Vendor may suspend all current and/or future orders; (ii) 48 hours after a formal notice has remained unsuccessful, the sale shall be automatically terminated, if so desired by the Vendor, which may bring action for summary proceedings for the return of the equipment, without prejudice to any other action and/ or damages. The buyer must reimburse all costs caused by the non-payment (including return costs on unpaid debts) and the recovery of sums due, including fees of ministerial officers and/ or recovery companies.
8.3 In no case may payments be suspended or offset without the Vendor’s prior written approval. Any partial payment shall first be applied to the non-preferential part of the debt, then on the amounts with the earliest due date.
ARTICLE 9 – RETENTION OF TITLE AND TRANSFER OF RISKS
9.1. The transfer of ownership of the equipment is subject to the full payment of the price by the buyer. The buyer undertakes to maintain the equipment in good condition and insure it against all rights, for which the buyer shall be fully responsible in all cases, as from their delivery. In order to permit any action for recovery by the Vendor, the buyer must ensure that the equipment can be individually identified.
9.2. The Vendor may recover its equipment regardless of whose possession it is in, in case of non-payment of the price by the buyer or insolvency concerning it, even when such equipment has been handed over to a third party. If the equipment resold, the buyer must notify the new buyer of the existence of the retention of title clause.
ARTICLE 10 – MANAGEMENT OF WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT (WEEE)
10.1. Insofar as the sold equipment is not marketed in mainland France, the Vendor does not have the capacity of producer or distributor in France within the meaning of Article R 543-174 of the French environmental code, thus exempting it from the reporting and invoicing requirements for household waste electrical and electronic equipment.
For any equipment marketed in the French overseas departments and territories for which the regulations apply, the buyer shall ensure and handle the elimination of waste electrical and electronic equipment (WEEE).
10.2. The buyer shall protect the Vendor against all consequences related to failure to comply with the obligations stipulated in this article. In no case, for any reason whatsoever, may the Vendor be held responsible for the buyer’s breach of these obligations.
ARTICLE 11 – ASSIGNMENT OF JURISDICTION – APPLICABLE LAW
These general terms and conditions of sale are subject to French law. Any dispute shall be under the exclusive jurisdiction of the Versailles commercial court, even in case of interim proceedings, incidental claims, or multiple defendants or introduction of third parties.
ARTICLE 12 – Personal Data
Personal information concerning the user is intended for Airwell Residential. In compliance with article 27 of the French Data Protection Act of 6 January 1978, information given by the user on forms is required for response handling and is intended for Airwell Residential, which is responsible for its processing to this end.
Should the user request that such information not be disclosed to the directorate relevant to the request, he or she must so request by email to the following address: firstname.lastname@example.org. The personal data will be kept for a period of ten years after the closing of the application file.
The user may withdraw consent at any moment by email to the aforementioned address. Users of the Site are bound by the provisions of the French Data Protection Act. Infringement is punishable by law.
Users shall, in particular, abstain from collecting or misappropriating the personal data to which they have access, and generally speaking, from acting in a way likely to be damaging to people’s private lives or reputations.
THESE GENERAL TERMS AND CONDITIONS MAY BE SENT TO YOU IMMEDIATELY IN BOLD CHARACTERS ON SIMPLE REQUEST. AS THESE TERMS AND CONDITIONS ARE ESSENTIAL TO THE VENDOR’S COMMITMENT, WE INVITE YOU TO CONTACT US IF THEIR READABILITY IS NOT SUITABLE FOR YOU.