1. SCOPE OF APPLICATION
The present General Conditions of Sale (hereafter called “CGV”), aim at defining the terms of sale between the MERCATE company and any person wishing to acquire the products offered for sale by the MERCATE company for the needs of its professional activity, by means of the placing of an order (hereafter called “Buyer”). The placing of an order implies, except preliminary and written exemption of the MERCATE company, the acceptance and the adhesion full and whole of the Purchaser to the present CGV which prevails on any other document of the Purchasers, in particular on their general conditions of purchase. The MERCATE company reserves the right to modify the present GCS at any time and without notice, being understood that the applicable GCS will always be those in force at the time of the placing of the order. The particular conditions, derogatory to the general conditions of sale, appearing in the estimates, will prevail on the latter. The MERCATE company reserves the faculty to bring any modifications of dimensions, materials, form, structure, etc., to the products represented on its catalogs, leaflets and printed documents, the information appearing on these last documents have only an indicative value and could not constitute a contractual element nor engage the responsibility of the MERCATE company.
The products governed by these GCS are those appearing on the commercial documents of the MERCATE company (hereinafter referred to as the “Product(s)”), which contain the characteristics of each Product. The essential characteristics of the Products are described and presented in the commercial documents have only an indicative value. Photos, drawings and other specifications as well as weight declarations appearing in the documents and on the Site have no contractual value. The offer of Products is valid as long as it is visible on the Site and the commercial documents, being specified here that the MERCATE company reserves the faculty to modify at any time and without notice the range of its Products. The company MERCATE reserves the right, at any time and without notice, to carry out any modification of price of the Products offered in its commercial documents. If one or more taxes or contributions, in particular environmental, were to be created or modified, this change could be reflected on the selling price of the Products referenced on the commercial documents. The Products are offered within the limit of available stocks.
The sales are perfect only after express and written acceptance of the Buyer’s order materialized by the confirmation of order by the MERCATE company. It will be up to the Buyer to check the accuracy of the order and to immediately report any error. In the event of cancellation of the order by the Purchaser, the MERCATE company will preserve as damages and interests the installments and partial payments possibly paid by the Purchaser, without damage of all others.
4. TECHNICAL MODIFICATIONS
The MERCATE company reserves the right to carry out technical modifications of the Products, including Products already ordered and will inform, in this case, the Purchaser before any confirmation of his order, and in the case where the order was confirmed, the Purchaser will be able to cancel it on simple request, and will be able to then ask for a credit note for the amount of the article or its refunding.
5. PRICE – CONDITIONS OF PAYMENT – RESOLUTION
The selling prices of the Products are those in force on the day the order is taken. They are denominated in euros and calculated net of tax. Consequently, they will be increased by the VAT rate and transport costs applicable on the day of the order. The price will not be able to be modified in any case after confirmation of the order by the MERCATE company. Moreover, for any order of a foreign Buyer, the MERCATE company reserves the right to modify the prices in case of variation of the exchange rate. The checks and bills of exchange are considered as means of payment only as from their effective cashing. For any order lower than 1 500 euros excluding taxes (H.T.), the price is payable cash and in totality with the order by the Purchaser. The Purchaser may pay by credit card or bank check. Cards issued by banks domiciled outside France must be international bank cards (Mastercard or Visa). In accordance with the provisions of the Monetary and Financial Code, the commitment to pay given by card is irrevocable. By communicating his banking information at the time of the sale, the Buyer authorizes the MERCATE company to debit his card of the amount corresponding to the indicated price. The Buyer confirms that he is indeed the legal holder of the card to be debited and that he is legally entitled to use it. In the event of an error, or if it is impossible to debit the card, the Sale is immediately cancelled by operation of law and the order is cancelled. Unless otherwise agreed, for any order exceeding 1,500 euros excluding taxes (excluding VAT) and subject to acceptance of the customer’s outstanding balance by an independent control body (EULER HERMES), a deposit of 30% will be required at the time of order, the balance being payable within thirty (30) days from the date of issue of the invoice. In the absence of acceptance of the customer’s outstanding balance by the aforementioned organization, the price will be payable in full cash at the time of the order by the Buyer. Failure to pay any of the due dates may result in the return of the product(s) sold and the payment of all sums due. In addition, the sale could be solved by right if MERCATE company seems to be in a good mood and could open right to the allocation of damages and interests to the benefit of MERCATE company. The paid installments will remain acquired to the MERCATE company as a penal clause. In the event of non-payment of an invoice at its due date, the MERCATE company reserves the right to suspend any new delivery until the integral payment of its debt. Moreover, interests of delay will be charged, of an amount equal to three (3) times the legal interest rate, as from the 1st day following the due date of the invoice and without preliminary formal notice as from this due date. The legal interest rate used is that in force on the day of delivery of the products. This penalty is calculated on the amount, including all taxes, of the sum remaining due, and runs from the due date of the price without any prior formal notice being necessary. In accordance with Articles L. 441-3 and L. 441-6 of the French Commercial Code, any delay in payment shall also automatically entail an obligation for the Purchaser to pay a fixed indemnity of forty euros (€40) for collection costs. An additional indemnity can be claimed by the MERCATE company, on documentary evidence, if the collection costs incurred are higher than the amount of the fixed indemnity. In the event of non-payment, the MERCATE company reserves the right to suspend or cancel all the orders in progress, after the sending of a formal notice remained unsuccessful. No discount is granted in the event of anticipated payment.
6. RENTAL AND FINANCING
The customer has the possibility of financing the products related to his contract for which he will solicit MERCATE in priority and exclusively. By the signature of the general conditions of sales, the customer formalizes to MERCATE, his request for financing and the mandate for any research on line or by a third party whose commissions will be able to be the subject of an invoice to the customer. MERCATE will propose to the customer of the financings by the means of its partners through which the customer will have to pass in exclusivity and in priority. In the event of refusal by all the partners, the order could not be called into question. MERCATE will be able to propose the financing of the contract internally with the deposit of a compulsory guarantee of 30% of the total amount including all taxes financed. In last resort MERCATE will be able to authorize the customer to finance the contract by his own bank.
7. RESERVATION OF OWNERSHIP CLAUSE
The MERCATE company keeps the property of the goods sold until the integral payment of the price, in principal and accessories but the Buyer will become responsible for it as of their material handing-over, the transfer of possession involving that of the risks. For this reason, if the Purchaser is the subject of a reorganisation or a judicial liquidation, the MERCATE company reserves the right to claim, within the framework of the collective procedure, the products sold and remained unpaid. The Buyer must insure himself against all the risks which the detention of the sold products involves until their complete payment. The Buyer may neither pledge the delivered product(s) nor transfer ownership by way of security. In the event of seizure or intervention of a third party, the Buyer is held to immediately inform the MERCATE company.
8. TRANSPORT AND DELIVERY
The delivery of the products is made in standard packaging at the place mentioned on the quotation, unless a different agreement is also mentioned on the quotation. The transport costs as mentioned on the quotation remain at the expense of the Buyer. Any special packaging may be provided for, at the expense of the Buyer and after acceptance of the corresponding quotation. As of the delivery, the products are placed under the responsibility and the exclusive guard of the Purchaser, notwithstanding the fact that the products remain the property of the MERCATE company until perfect payment of all sums due. Unless otherwise agreed, any delivery to a foreign professional Buyer will be made EXW (“Ex Work” as defined in the 2010 Edition of the Incoterms of the International Chamber of Commerce), at the address indicated on the order form. The delivery time indicated at the time of order registration is given only as an indication and is in no way guaranteed. Consequently, any reasonable delay in the delivery of the products will not give rise to the Buyer to :
- the allocation of damages
- cancellation of the order.
Upon receipt of the Products, it shall be the responsibility of the Purchaser to check the Products and to make, if necessary, the necessary reservations on the delivery note given by the carrier. In the absence of reservations expressly made by the Purchaser, the Products delivered will be deemed to conform in quantity and quality to the order placed. The Purchaser shall have a period of three (3) days from delivery and receipt of the Products to notify, in writing and by registered letter with acknowledgement of receipt, its reservations to the carrier, in accordance with the provisions of Articles L. 133-3 et seq. of the French Commercial Code. A copy of the letter will have to be transmitted to the MERCATE company by Registered Letter with request for Notice of Receipt, at the following postal address: 27 avenue Gallieni – 92400 COURBEVOIE. Any complaint (manufacturing defects of the Product,) will have to be formulated by Registered Letter with request for Notice of Reception to the After-Sales Service (hereafter “After-Sales Service”) of the company MERCATE, at the following postal address: 27 avenue Gallieni – 92400 COURBEVOIE.
No complaint will be validly accepted in case of non-respect of these formalities by the Buyer. The return of the Products could be carried out only with the prior agreement of the MERCATE company. The Products returned at the expense of the Buyer must always be accompanied by a copy of the invoice or the delivery note. The MERCATE company will replace as soon as possible and at its expenses the delivered Products whose defect of conformity will have been duly noted, with the exclusion of any indemnity or damages. The complaints under the present after-sales service do not suspend in any case the deadlines of invoicing and payment of the orders placed with the MERCATE company.
9. MAINTENANCE AND UPKEEP OF THE EQUIPMENT
The services of care and maintenance could be ensured by the MERCATE company or by one of its approved partners, at the express request of the Buyer. These services of care and maintenance will then be the subject of an additional contract dissociated from the contract of sale of the product.
The Purchaser acting as a professional benefits on the Products supplied by the company MERCATE, automatically and without additional payment, in accordance with the legal provisions, of the guarantee of common law against the latent defects resulting from a defect of material, design or manufacture affecting the delivered Products and making them unfit for use, under the conditions and methods defined in articles 1641 and 1648 of the Civil code. In addition, the Purchaser benefits from a commercial warranty limited to two (2) years from the date of delivery of the Product, against any technical malfunction of the Product resulting from a production defect. Natural wear and tear is not covered by the warranty. The warranty aims, by the replacement or repair, free of charge, of all defective parts, to put an end to the malfunction. Excluded from the warranty are parts that are regularly replaced in accordance with the maintenance and care regulations. This warranty applies exclusively to original MERCATE products, other products of different origin are not covered by this warranty. The warranty is strictly limited to the repair or replacement at our expense of parts, elements, recognized as defective by MERCATE; any repair cannot have the effect of extending the warranty period. The warranty cannot in any case lead to the payment of indemnities or damages, whatever the prejudice suffered. The warranty does not apply, among other things, to replacements or repairs that result from deterioration, normal wear and tear, accidents, negligence, lack of supervision or maintenance, faulty use of the Product, by a third party, etc. The warranty does not apply to any damage caused by a third party. In the same way, the defects or deteriorations caused by the natural wear and tear or by an external accident (erroneous assembly, defective maintenance, abnormal use or not in conformity with the recommendations appearing in the documentation issued by the MERCATE company, etc.) or by a modification of the Product by the Buyer neither envisaged nor specified by the MERCATE company, are excluded from the guarantee.
11. INTELLECTUAL PROPERTY AND COUNTERFEITING
The MERCATE company remains owner of all the intellectual property rights on the texts, photographs, illustrations and images reproduced on its Site as well as on the presentations, drawings, models, etc., carried out (even at the request of the Purchaser) for the supply of the Products to the Purchaser. The Purchaser thus refrains from any reproduction or exploitation of the aforesaid texts, photographs, illustrations, images, presentations, drawings, models, etc., without the express, written and preliminary authorization of the MERCATE company which will be able to condition it with a financial counterpart. In case of non-respect of this clause, the Purchaser commits himself to compensate any loss and reasonable expenses implied in legal procedures which would result from a counterfeit or an illegal copy, and all expenses relating to legal or extra-legal steps carried out in the interest of the rights of the MERCATE company. The Contract does not confer to the Buyer any intellectual property right on the device, subject hereto, protected by a patent. The provision of the device under the conditions provided for in the Contract cannot be analyzed as the transfer of any intellectual property right to the Buyer within the meaning of the Intellectual Property Code. Subject to the terms of the patent, the Purchaser shall refrain from reproducing any element of the device, by any means whatsoever, in any form whatsoever and on any medium whatsoever, from translating, adapting, decompiling, arranging, modifying, exporting the device.
12. MAJOR FORCE
The responsibility of the MERCATE company, the carriers and other independent service providers with whom MERCATE cooperates cannot be implemented if the non-performance or delay in the performance of one of their obligations described in these GCS results from a case of force majeure. As such, within the meaning of article 1218 of the Civil Code, force majeure in contractual matters is characterized when an event beyond the debtor’s control, which could not reasonably have been foreseen at the time of the conclusion of the contract and whose effects cannot be avoided by appropriate measures, prevents the execution of its obligation by the debtor. If the impediment is temporary, performance of the obligation is suspended unless the resulting delay justifies termination of the contract. If the impediment is permanent, the contract is terminated by operation of law and the parties are discharged from their obligations under the conditions provided for in articles 1351 and 1351-1 of the Civil Code.
13. NULLITY AND MODIFICATION OF THE CONTRACT
If one of the stipulations of the sales contract were to be null and void, such nullity would not entail the nullity of the other stipulations which would remain in force between the parties. Any contractual modification is valid only after a written and signed agreement of the parties.
14. APPLICABLE LAW
The present GTC and the operations resulting from them are governed by and subject to French law. These GTC are written in French. In the event that they are translated into one or more foreign languages, only the French text shall be deemed authentic in the event of a dispute.
15. COMPETENT JURISDICTION
For any dispute relating to the present GCS and the contracts of sale concluded by the Buyer, it is made attribution of jurisdiction to the competent Commercial court of the registered office of the MERCATE company, even in the event of call in guarantee or of plurality of the defenders and whatever the method of payment and the place of delivery and this, notwithstanding any contrary provisions of the Buyer.
The Buyer acknowledges having been informed, prior to placing his order, in a clear and comprehensible manner, of these GCS. The Buyer acknowledges having read and accepted the terms and conditions of these terms and conditions of sale.
17. PROTECTION OF PERSONAL DATA
In accordance with the provisions of the General Regulation on the Protection of Personal Data of May 25, 2018, the information collected on individuals on the occasion of this contract will be used and will be processed only for the sole purpose of the execution of this contract or to meet legal or regulatory obligations. They may give rise to the exercise of the right of opposition, access, rectification and portability under the conditions provided for in the Regulations.
Simplified Joint Stock Company with a capital of 1.400.000 €.
Head Office: 27 avenue Gallieni
RCS NANTERRE 504 466 715