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General Terms and Conditions of Sales

Trade Resellers

 

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Clause 1 ‐ Application and enforceability of our General Terms and Conditions of Sale:

These General Terms and Conditions of Sale apply to sales made to trade resellers, and in this framework, to all sales of goods howsoever made in Metropolitan France. In the event of a conflict between our General Terms and Conditions of Sale and the Customer’s General Terms and Conditions of Purchase and/or Logistics, our General Terms and Conditions of Sale shall take precedence.

Any and all orders automatically imply on the part of the Customer the unreserved agreement thereof to these General Terms and Conditions of Sale, except in the event of a formal and express waiver on our part, or the existence of a special agreement. These General Terms and Conditions of Sale also exclude any and all other documents such as leaflets, catalogues, etc. which we may have cause to issue which are provided for information purposes only.

Clause 2 ‐ Terms governing the acceptance of orders:

Orders shall only become definitive when confirmed by the dispatch on our part of a document entitled “Confirmation of Order”, by electronic means. Orders are entered into on a one‐to‐one basis and cannot be transferred without our agreement. Orders are then irrevocable.

Clause 3 ‐ Changes to orders:

Any and all changes to orders requested by the purchaser are subject to the acceptance of the vendor and cannot be taken into consideration unless they reach the vendor, in writing, five days before dispatch of the products. Any and all changes call into question the delivery timeframes initially provided for information purposes.

Clause 4 ‐ Delivery:

Our products are delivered carriage paid in accordance with the delivery fee notified in respect of each delivery, in accordance with the delivery fee list which is made available to customers upon request.

The prices of appliances are given: departure logistics plat‐ form, in euros, excluding taxes – i.e. plus VAT and ecological tax.

In respect of all deliveries to places other than to the Customer’s point of sale, lump sum fees for each order shall be payable. As regards deliveries direct to building sites, please ask us for terms. Any and all postponements of deliveries requested by the Customer shall give rise to storage fees being charged and shall lead to the invoice being paid in full by the Customer. Delivery is made by the product being given into the care of a carrier at the purchaser’s premises.

The delivery timeframe listed on the purchase order receipt note is provided for information purposes only.

Deliveries made after the delivery timeframe shall not give rise to damages, deductions, or cancellation of pending orders. The following are deemed to constitute force majeure circumstances which release us from our delivery obligation: wars, riots , fires, strikes, natural disasters, accidents, and the impossibility for us to obtain supplies.

The delivery timeframes listed do not take into account legal non‐working days, strike days, and days on which we are closed for annual leave.

Should dispatch be delayed for any reason however, outside of our control, and we consent thereto, the products may be warehoused and handled, where applicable, at the expense and the risk of the purchaser. These provisions do not modify payment obligations in any way, shape or form and do not constitute a novation howsoever. All of our “standard” appli‐ ances (see Price Guide) are delivered in packaging.

Clause 5 ‐ Receipt and returns:

Without prejudice to measures that may be taken in respect of the carrier, claims regarding patent defects and non‐conformity of the product as delivered in relation to the product ordered must be made by letter with acknowledgment of receipt, within forty‐eight hours following receipt of the products. No product may be returned to us by the purchaser to the vendor, without the formal consent of the latter thereto. Carriage expenses shall be borne by the customer, unless the vendor agrees to bear them prior to said return. After agreement regarding the return, the parts shall be returned by the purchaser to the vendor, in suitable packaging. A credit note shall be drawn up by the vendor. The agreement of the vendor regarding the return in no way implies acknowl‐ edgement or acceptance of responsibility by the vendor. Following inspection of the returned products, the vendor shall draw up a credit note for the purchaser, if the responsibility of the former is established.

Clause 6 ‐ Guarantee:

6.1. Guarantee of patent defects ‐ Principle:

Our products must be verified by the customer upon delivery.

Any and all claims, reservations or disputes regarding missing items and patent defects must be submitted in the manner set forth in these General Terms and Conditions.

In the event of patent defects, the defective parts shall be replaced by us, subject to verification of the alleged defects.

We shall not be held responsible for patent defects or missing parts of which the purchaser was aware before entering into the sales agreement.

The customer shall have to provide any and all evidence as to the reality of the defects noted (paperwork, photographs, etc.), and our company reserves the right carry out, directly or indirectly, any and all checks and verifications, notably on‐site.

Notice of the missing items or of the patent defects which were noted at the time of delivery, and those discovered after acceptance and intake of the products, shall have to be provided by the customer in writing within twenty‐four hours following the date on which the latter discovered the said missing item or defect. No notice shall be taken into account if it is provided more than eight full days following delivery of the products. Once said timeframe has expired, the customer shall no longer be able to put forward as a ground non‐ conformity of the products as regards patent defects or missing items, or raise said non‐conformity in a counter‐claim in its defence at the time of legal proceedings regarding the collection of monies owed brought by our company.

6.2. Guarantee o f hidden defects:

Our company guarantees its products against the hidden defects which existed on the date on which products are delivered, in accordance with the law, under the terms set forth hereinafter.

Our guarantee only applies to products which have lawfully become the property of the purchaser. It only applies to products which were manufactured in full by our company. Our guarantee covers hidden defects. Since our customers are trade professionals, a hidden defect is defined as an unac‐ ceptable manufacturing defect affecting a product which renders the latter unfit for the intended use thereof which is not liable to be detected by the purchaser before it is used. “Unfit for the intended use thereof” means that the defect prevents the piece of equipment from operating. Thus, the design of the product is not covered by the hidden defects guarantee – our customers are deemed to have received all of the technical information regarding our products. We do not guarantee against malfunctions or damage or wear and tear arising out of adaptations or fitting of our products which are special or unusual or usual. Likewise, allegations regarding occasional or variable malfunctions, a lack of comfort, unhap‐ piness regarding the results obtained, aesthetic defects, in particular, are not covered by the guarantee against hidden defects. A defect is not hidden if, despite the fact that the purchaser was not aware of it in good faith, it could have been discovered by carrying out basic verifications.

Our guarantee is limited to the replacement or repair of defective parts. It does not give rise to compensation.

6.3. Contractual guarantee:

A specific contractual guarantee can be provided by our company for such equipment. In such case it shall be strictly limited to the stipulations set forth by us.

6.4. Terms covering the application of guarantees:

Any and all requests for coverage in respect of the guarantee must be made using our After‐Sales Service Return Request Form. All claims must be made by the Customer to the Supplier’s After‐Sales Service Department, given that no direct claims by the user shall be taken into account. The guarantee request shall be taken into account upon production of a dated purchase receipt.

It is the responsibility of the purchaser who alleges a defect, regardless of the defect in question, to provide proof of the existence and of the nature thereof. An application is for‐ warded by the purchaser to our staff. Likewise, any and all guarantee requests shall have to be accompanied by evidence that it does not fall under one of the said exclusion cases. The purchaser must do his or her utmost to enable said defects to be officially recorded and remedied. He or she must further‐ more absolutely abstain from replacing the products or have said replacement carried out by a third party, failing which guarantee coverage shall not be provided.

The guarantee coverage is limited to merely exchanging or repairing the defective part. If it proves indispensable, after examination by the Supplier’s Technical Staff, replacement of the appliance in full shall be carried out as a temporary measure. Said replacement measure, taken as a temporary measure, under no circumstances howsoever constitutes an acknowledgment of responsibility on our part. In the event of replacement of the defective part or of the appliance as a whole, transport, removal and fitting costs are excluded from the guarantee. In the event of immediate replacement as a temporary measure, the defective equipment shall have to reach our staff within fifteen calendar days of the replacement thereof. Failing which, the replaced equipment shall be invoiced.

All returns shall be carried out in suitable packaging, with the equipment properly wedged. The cost of the return shall be borne by the customer. No returns of parts shall be accepted unless approved beforehand by our After‐Sales Service De‐ partment. The customer shall receive an assessment carried out by our After‐Sales Service Department in the event that the latter concludes that the return was unjustified.

The guarantee coverage excludes any and all compensation in respect of damages. The installer must be insured against any eventual damage.

Moreover, our guarantee automatically ceases to apply when our customer has not notified us of the alleged defect within a timeframe of thirty full days from the date of the facts cited as justifying the claim for guarantee coverage.

The onus is on the customer to provide evidence of the dates referred to in the claim.

6.5. Specific exclusion in respect of apparent defects:

Defects and damage to the products delivered consecutive upon circumstances relating to carriage, to storage and/or to preservation conditions at the customer’s premises, in particular in the event of an accident of any type howsoever, shall not give rise to an entitlement under the guarantee provided by our company.

The guarantee does not apply to equipment already resold by our purchaser.

6.6. General exclusions in respect of the all the guarantees:

All guarantees are invalid as soon as our products have been used under usage or performance circumstances for which they were not intended or which do not constitute normal usage.

The guarantees do not apply if the following conditions have not been complied with, to whit notably:

‐ Storage away from sources of humidity and the effects of bad weather;

‐ Set‐up and installation in accordance with best practice;

‐ Utilisation with a 230V domestic power supply;

‐Utilisation compliant with the Supplier’s instructions for installation and use.

The guarantees do not apply to any eventual damage which is the consequence of overvoltage or other faults which occur in power supply and distribution circuits.

The guarantees apply to corrosion defects only if the applianc‐ es are used in accordance with the usual circumstances which apply in a single housing unit or in the tertiary sector; in particular they must not be:

‐ Subject to intensive and continuous ambient humidity (from swimming pools, etc.);

‐ Cleaned using acidic substances which are liable to affect their properties.

The development of a shade of colour over time is a natural phenomenon and cannot give rise to a guarantee claim. The guarantees do not come into play if the acquirer cannot provide evidence of full payment for supplies and/or if the installation and usage instructions provided by the vendor were not complied with, and less specifically in the event that the damage caused arose out of the actions of the purchaser or of the servants thereof, out of force majeure circumstances or out of unforeseen circumstances. The guarantees do not apply in the event of a defect originating either in the compo‐ nents supplied by the purchaser and in the event of a design having been required by the purchaser, without the vendor having taken part in said end design process, or if the product did not meet aims determined by the customer of which the vendor was not notified. All points not mentioned in writing in the order are not guaranteed. All damage caused by normal wear and tear is also excluded from the guarantee.

The guarantees only apply to products produced in production runs, to the exclusion of prototypes and samples.

6.7. Specific exclusions in respect of central heating radiators as regards all of the guarantees:

‐ The system must be set up in accordance with best practice, and notably in accordance with D.T.U. 60.1 and 65.11 and the fascicules (booklets) CCO, CC1, CC2 and CC3 drawn up by the Commission Centrale des Marchés (the French State’s central tendering committee);

‐ The water used to supply heating circuits must not be aggressive, corrosive, etc.;

‐ The circuit must be free of material formed by metal, scale, grease, etc.;

‐ The system must not contain traces of dissolved gases (in particular oxygen).

All common forms of corrosion are caused by the presence of oxygen, therefore all risks of oxygen entering the system must imperatively be avoided.

To do so, it is necessary:

‐ To carry out effective upstream bleeding of the circulation pump and bleeding of high points (located in high pressure areas);

‐ To make the expansion system large enough, in order to avoid frequent addition of supplementary water;

‐ To have high pressure continuously at all points in the system;

‐ Also avoid unusual additions of water, due to leaks, parasitical bleeding or other causes, in general, in general avoid all factors which present a risk of oxygen getting into the system, notably should gas‐permeable materials be used;

‐ Heating bodies, after initially being filled, must be filled with water and must not be drained periodically;

‐ In the event that the use of a corrosion‐inhibitor is rendered necessary, it must be compatible with all the materials present in the system. The choice of it and verification of its effectiveness must therefore be appropriate in relation to the system in question;

‐ The installer will take care to use joints made of material which is compatible with that of the heating body in order to prevent all abnormal electro‐erosion phenomena;

‐ In the event that anti‐freeze is used, it must be of a quality appropriate for use in a central heating system and must never be used pure, rather diluted to the relevant percentage (neither above or below) before it is put into the system;

‐ The operating pressure of the heating body guaranteed by the manufacturer must correspond with the normal maximum operating pressure. In the event that a test is carried out on the system, the maximum values in respect of the latter are set out by the standard NF EN 442‐1, sections 5.2 and 5.3.

6.8. Guarantee period:

The guarantee period for missing parts and patent defects varies depending on the nature of the defect in question and on the type of equipment in question:

‐ As regards domestic hot water heat pumps : a 3‐year guarantee on the product and a 5‐year guarantee on the tank (anode exclud‐ ed) from delivery of the appliance in the case of a non‐compliance defect;

‐ As regards central heating steel panel heaters: a 10‐year guaran‐ tee from delivery of the appliance in the case of a non‐compliance defect, as regards central heating towel dryer radiators: a 5‐year guarantee from delivery of the appliance in the case of a non‐ compliance defect;

‐ As regards electric radiators, electric and mixed towel dryer radiators and accessories: a guarantee lasting 30 months from delivery of the appliance up to a maximum of 36 months after its manufacturing date in the case of a non‐compliance defect;

‐ As regards spare parts : 2 years from the exchange.
- As regards room thermostats and programmers, a 3-year guarantee from delivery of the appliance.

The guarantee for hidden defects is provided for duration of 30 months from delivery.

The spare parts vital for the use of the machine or equivalent spare parts continue to be available for five years from the date of manufacture of the appliance.

Work carried out under the guarantee does not have the effect of extending the duration of the guarantee.

Clause 7 ‐ Price:

Prices are listed in our catalogues and in our price guides and on purchase order confirmations excluding all dues and taxes, which shall be paid by the purchaser.

Any and all changes to our rates shall be automatically applicable as of the date indicated on the new rate.

Products are supplied at the price effective at the time an order is placed.

Resale prices are freely set locally by our distributors depending in particular on their distribution costs, guarantees and services offered.

Installers also freely determine their prices, in compliance with applicable regulations.

Clause 8 ‐ Invoicing and payment:

An invoice is drawn up for each delivery. Invoices are payable 30 days after the end of the month in which goods are received, by bank transfer, cheque, accepted or unaccepted bill of exchange, and this applies unless a special understanding has been signed by the Supplier and the Customer which is specified on the purchase order acknowl‐ edgement of receipt.

Payment is deemed to have been made on the date on which the funds are put by the Customer at the disposal of the beneficiary or of the assignee thereof. In the event of early payment, no discount shall be granted. The payment terms agreed with the Customer may not be delayed for any reason. In the event that one of the payments is not made, or in the event of sale, transfer of ownership use as collateral security or contribution to a company of its business or of its operating equipment by the Customer, all the sums payable by the latter fall immediately due for payment automatically without prior notice. The Supplier in this case reserves the right to suspend performance of orders recorded but not yet delivered. Without reminders or prior notices to pay being sent, all sums not paid at the due date thereof shall be increased, automatically, at 15%. These penalties shall be payable upon request by the vendor. According to articles 441‐6 c. com. and D. 441‐5 c. com., any delay in payment entails by rights, next to the late payment charges, an obligation for the debtor to pay a compensatory fixed lump sum of 40€ for/as collection fee.

Should payment not be made, 48 hours after a notice to pay which goes unperformed, the sale shall be cancelled automatically if the vendor sees fit and it shall be able to demand, by means of a summary court judgment, the return of the products, without prejudice to any and all other damages. Said termination shall apply not only to the order in question and shall give rise to cancellation of pending orders, without prejudice to any and all other means of action in the event of collection by means of a bailiff or through the courts, a complementary compensation shall be due, based on evi‐ dence, in the case that the real fees for collection surpass the fixed lump sum for collection.

Should a dispute arise between the Supplier and the Customer regarding one of the items on the invoice, the Customer undertakes pay the Supplier for all of the other items on the invoice which are not the cause of the dispute.

The Customer undertakes not to have recourse to unilaterally offsetting monies owed.

In the event that court‐ordered collective insolvency proceedings (procedure collective) are brought against the customer, pending orders shall be cancelled automatically and our company reserves the right to claim the goods in stock.

Clause 9 ‐ Retention of title clause:

Goods delivered remain the exclusive property of the Supplier until they are paid for in full (the principal amount thereof and ancillaries, even should payment extensions have been granted) by the Customer.

Any and all clauses to the contrary, in particular those inserted in general terms of purchase, shall be deemed not written.

This retention of title clause is enforceable on the purchaser and on other creditors.

The provision of bills of exchange or of other documents creating an obligation to pay does not constitute payment.

Our company may enforce the rights it holds under this retention of title clause, as regards an y one howsoever of the debts owed thereto, on the totality of its products in the possession of the customer, the latter products being assumed to be the ones which have not been paid for, and our company may take them back or claim them as com‐ pensation for all of its unpaid invoices, without prejudice to its right to cancel pending sales.

Thus, failing full payment for goods at the due date, the Supplier may, serve notice by all means to the Customer to return the goods at the expense and the risk of the latter within a timeframe of 48 hours. Should such notice not produce t he desired effect, the Supplier shall be entitled to effect the physical recovery of the goods sold at the expense of the Customer. In addition the Customer shall have to pay, where applicable, late fees and damages.

The Customer shall only be able to resell its unpaid products within the framework of the normal operation of its business, and can under no circumstances howsoever use the unpaid inventory as collateral security or as surety. In the event of failure to pay, the customer undertakes not to resell its stock up to the quantity of the unpaid products.

The customer undertakes to notify our company regarding the situation in respect of said unpaid stock in the case of resale or conversion authorized by our company, in order to enable our company to exercise its right to claim the price in respect of the third‐party acquirer.

Permission to resale or to convert is never given in the event of Court‐ordered administration or court‐ordered liquidation.

In the event of attachment or of any other action by a creditor or another third party on the Customer’s stocks, the latter undertakes to inform the said third party or creditor of the present retention of title clause and to immediately notify our company. The Supplier only makes definitive sales. No requests for sales on a sale‐or‐return basis shall be accepted by the Supplier. Under all circumstances, our company can draw up or have drawn up an inventory of its goods that are in the possession of the customer which undertakes, hereby, to allow free access to its warehouses, storerooms or other premises to this end, ensuring that identification of our company’s goods is always possible.

Clause 10 ‐ Transfer of risks:

The retention of title clause hereinabove does not prevent risks in respect of the goods from being transferred to the customer from the time of their dispatch. Thus, the transfer of risks regarding the products, even in case of goods sold on a carriage paid basis, takes place as soon as they are dispatched from the warehouses of the vendor or picked from its logistics platform. It notably arises there‐ from, that the goods travel at the risk of the purchaser, the responsibility of which it is, in the event of damage, losses, or missing items, to notify any and all reservations and to make any and all claims to the carriers responsible.

The Customer accordingly undertakes to take out all relevant insurance policies to cover against risks, losses, theft or destruction of the goods sold.

The Customer shall have to, when receiving the packages, check them in the presence of the carrier. Even if the packaging appears to be intact, if damage has occurred, if items are missing, if items have been substituted, a record thereof shall have to be made on the carrier’s delivery sheet and said reservations shall have to be confirmed by the Customer, within three days of receipt, by registered letter sent to the carrier (ref. Art. L133 of the Commercial Code). It is the Customer’s responsibility to make a claim against the carrier in the event of missing items, damage or delays.

Then, the Customer takes on the role of trustee and guard of the goods.

Clause 11 ‐ Confidentiality, Intellectual Property, Trade Mark Law:

Any and all technical documents provided to our cus‐ tomers remain the exclusive property of our company.

The purchaser undertakes not to disclose to third parties, all plans, designs, products, samples, software programs, drafts or any and all other documents provided by the seller and to not do so regardless of the medium or the material thereof.

The customer must respect our rights both as regards intellectual property and in terms of registered trademarks.

Clause 12 ‐ Competent Court, Applicable Law:

The parties, before engaging in any litigation, s ha l l endeavor to reach a friendly settlement.

In the event of a dispute regarding a service provided, an order, supplies provided or payment, even should the latter have resulted in the creation of a bills of exchange (drafts), as well as the interpretation or the performance of the clauses and terms hereinabove, and less specifically in respect of any and all disputes between seller and customer, the Vienne Commercial Court in the department (county) of Isère, France, shall be the sole competent court, regardless of the place of delivery, the payment method accepted, even should there be introduction of third parties or multiple defendants. By means of this clause, Supplier and Customer waive any and all other competent court clause which may exist in any and all other commercial documents pertaining to the two parties. This clause even applies as regards summary proceedings, additional applications, multiple defendants and the introduction of third parties, without the competent court clauses which may exist in the documents of purchasers being able to stand in the way of the application of the present clause.

The applicable law is French Law.

Clause 13 ‐ Waivers:

The fact that our company does not enforce, at any given time, on any one howsoever of the clauses set out in the present document does not imply that it shall not enforce said clauses subsequently.

These General Terms of Sale void and replace the previous ones. They enter into force as of 9st February 2015.

The purchaser represents that it has read and understood these general terms of sale and agrees to them unreservedly.
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