General Terms and Conditions of Sale
1. General provisions
These General Terms and Conditions of Sale (hereinafter "the General Terms and Conditions") are intended to define the conditions under which BORACAY, SAS with a capital of €24,000 registered at the RCS of Lyon under number 4131852999 whose registered office is located at 6 rue Sigmund Freud 69120 Vaulx en Velin (hereinafter "the Seller") sells and delivers to its professional customers (hereinafter "the Customer") advertising and/or promotional items specially designed for them (hereinafter "the Products"). The Seller and the Customer together form the Parties.
Scope: in the absence of specific express provisions, the General Conditions in force on the day of the order for Products shall automatically apply between the Parties. The sole fact, for the Customer, of ordering the Products from the Seller therefore implies the Customer's full, complete and unreserved acceptance of these General Conditions, which he declares to have read and understood. The Seller reserves the right to modify its General Conditions at any time. However, these modifications will only be applicable to orders placed after them.
Opposability: the fact that the Seller does not invoke, at a given time and for any reason whatsoever, any provision of the General Terms and Conditions shall not be interpreted as a waiver of its right to invoke it in the future. In addition, in the event that any of these provisions are, in whole or in part, cancelled for any reason whatsoever, this cancellation shall not affect the other provisions that shall remain applicable. In the event of any possible contradiction with any other contractual document issued by the Client, and in particular with its general terms and conditions of purchase, the Parties agree to grant the General Terms and Conditions a higher hierarchical value, unless otherwise expressly and previously agreed between them.
2. Formation and execution of the sales contract
Formation of the sales contract: the sales contract is formed between the Parties when the Customer places an order by accepting the Seller's quotation, returning it to the latter dated and signed with the handwritten mention "good for agreement". This quotation stipulates in particular the specific conditions of the sale, in particular the references, quantities, prices, deadlines and place of delivery of the Products. These special conditions, together with the General Terms and Conditions, form the contract of sale between the Parties. Acceptance of the quotation implies express and unreserved acceptance of the General Terms and Conditions of which the Client acknowledges having read. All quotations are valid for a period of one month, at the end of which the Seller will be free to retract or modify its offer. All orders are considered firm and final. No modification or cancellation of an order is possible without the prior written consent of the Seller.
Execution of the order: no order will be executed by the Seller before the actual receipt of the deposit stipulated in Article 3 and the formal validation, by the Customer, of the printing order(s), which must be signed by the Customer with the handwritten mention "ready for printing". A TAO binds the Parties, both on the choices made by the Customer and on the manufacture of the Products by the Seller. Any delay due to the delays in receiving the deposit or the TAO(s) shall not engage the Seller's liability. The contract is deemed to have been fully performed by the Seller upon delivery of the Products. In the case of the Customer, the contract is deemed to be fully performed upon payment of the balance of the Seller's invoice.
3. Price, down payment and invoicing
Price: the price of the order is the one indicated on the quotation. This price includes the price of the Products and, where applicable, the cost of transport, ancillary costs and applicable taxes, including customs duties.
Account: the Seller reserves the right to request, under the terms of its quotation, the payment of a deposit. This deposit is payable with the order. The Seller is not obliged to execute the order until this deposit has been paid. Any payment incident and, more generally, any deterioration in the buyer's credit may justify the requirement of guarantees, cash or bill of exchange payable on sight, before the execution of orders.
Billing: the Seller invoices the Customer in the month of delivery. All invoices are payable within 30 days of the end of the month. Any delay in payment will result for the Customer, in addition to a fixed indemnity of at least €40 without prejudice to the Seller's right to claim additional compensation equal to the actual costs it has incurred in this respect, a penalty equal to three times the legal interest rate in force on the date of the invoice. In addition, in the event of delay, the Seller may, in addition to postponing or terminating pending orders, demand payment of all sums, even those not yet due, due to him in respect of said orders.
4. Retention of title and transfer of risk
The Products remain the property of the Seller until full payment of the amount stipulated in the quotation. In the event of non-payment, even partial, of one of its invoices, the Seller may thus claim full ownership of the Products, whether or not they have already been delivered to the Customer.
5. Transport and delivery
Transport: whatever the agreed mode of transport, the Products always travel at the buyer's risk. The Seller's liability can therefore under no circumstances be sought for destruction, damage, loss or theft during transport. The customary reservations provided for in Article L 133-3 of the French Commercial Code must be justified and sent to the carrier as soon as the Products are received, and confirmed by LRAR within a period of three days, excluding public holidays. A copy of the consignment note on which the reservations have been made must be sent to the Seller on the same day. Delivery: delivery is deemed to have been made when the Products are made available to the Customer in accordance with what is stipulated in the quotation. The delivery times stipulated in the quotation are given as an indication. However, once the indicative delivery time has passed, the Customer who has, by LRAR, unsuccessfully put the Seller in default to execute within 15 days, will be entitled to cancel his order altogether. This cancellation will not give rise to any compensation to the Client. In the event of a change in the Customer's order, the Seller, if it accepts such changes, shall not be bound by the related delays. In any event and when circumstances so require, the Seller shall be entitled to make partial deliveries.
6. Product Compliance
Conformity of the Products with the order: the conformity of the delivered Products is assessed with regard to the TAO(s). A tolerance is allowed when, for technical reasons in particular, insignificant differences are found between the TAO(s) and the Products (size, colour, material, etc.). As the origin of the Products may vary, in particular from one order to another, the Seller cannot guarantee perfect homogeneity between them. Slight variations in colour and finish are therefore possible, which the Customer accepts. In the absence of an express stipulation by the Customer concerning the Pantone reference(s), the Seller will come as close as possible to the colour indications provided by the Customer. Similarly, in the absence of Customer specifications, the choice of type of characters is left to the Seller's discretion. Quantities: due to manufacturing contingencies, orders with printing are accepted subject to a tolerance of plus or minus 10% of the quantities requested, according to industry practice. After execution, invoicing will be established in accordance with the quantities actually delivered. Receipt of the Products: the receipt of the Products is tacitly carried out when the Customer actually takes possession of the Products. The Customer must therefore check the conformity of the order, the condition of the Products and record the immediately visible reserves. Any possible non-conformity must be declared to the Seller within 8 working days following the actual delivery of the Products, failing which the order will be deemed to be in conformity. The non-conformity of the delivered Products is assessed with regard to the BAT (size, colour, material...). Reservations: Unless otherwise agreed, the Seller shall be required to withdraw as soon as possible and at its own expense any reservations that may be justified. Any return must be made with the prior agreement of the Seller, at the expense and risk of the Customer. If necessary, the Products must be returned to the Seller in perfect condition, with their original accessories, instructions and packaging.
7. Hidden defects and defective products
Hidden defects: the Products are guaranteed against hidden defects. Any claim made in this respect must be submitted as soon as possible to the Seller, accompanied by supporting documents. The Seller guarantees the repair or replacement free of charge and identical or equivalent to the Products with a hidden defect. The Seller shall not be obliged to compensate the Customer for indirect damages resulting from a hidden defect. Defective Products: if the Customer considers that the Products are likely to cause damage to property or persons, or if he has been informed of such a risk, he has the obligation to notify the Seller as soon as possible and in the following manner: Telephone working hours: +33 (0) 4 37 45 12 12 12 Any telephone call must be confirmed by fax to the following number: +33 (0) 4 37 45 12 13 or by e-mail to the following address: firstname.lastname@example.org These confirmations must indicate precisely the references of the products concerned as well as the risk or risks identified and the reasons. Exclusion case: abnormal use of the Products is excluded from any warranty. The same applies to defects and deterioration caused by natural wear and tear or by a lack of maintenance.
8. Force majeure
Cases of force majeure classically accepted by French legislation exonerate the Parties from any liability. In particular, the following events shall be considered as force majeure: strike, lockout, fire, epidemic, flood, bad weather, damage to equipment, riot, war, power failure, interruption of energy supply, shortage of raw materials, increase in raw materials, change in standards and regulations either at our premises or at our suppliers or carriers, late delivery by our suppliers or subcontractors, even if they are only partial, and whatever the cause may be. The party who suffers from a case of force majeure must inform the other party as soon as possible. In the event that the performance of the obligation prevented by the case of force majeure is not possible within one month following this notification, the party who has an interest may terminate the contract of sale, subject to the sending of an LRAR which may only be sent to the other party at the end of this period. No compensation may be made as a result of this termination.
9. Intellectual property
Use of the Customer's graphic elements: to design the Products, the Seller may use graphic representations that identify the Customer (brand, logo, design, slogan, etc.). By accepting the quotation and choosing one or the other of the models that the Seller submits to him, the Customer declares to be the owner of all the graphic elements affixed to the Products. As such, the Customer fully and without limitation, in particular in amount or duration, guarantees the Seller against any recourse which is, without this list being exhaustive, based on counterfeiting or unfair competition. Under no circumstances shall the Seller be held liable for the fraudulent use of the graphic elements affixed to the Products. Ownership of the Seller's creations: studies, samples, designs and documents of any kind delivered or sent to the Customer by the Seller remain the sole property of the latter, who may therefore request their return. The Seller retains all its intellectual property rights, if any, in these elements as well as in the Products, which may not, if protected, be reproduced without its express written consent.
Absence of exclusivity: the Seller does not commit to any exclusivity towards the Customer with regard to the design or manufacture of the Products. The Seller therefore reserves the right to exploit, for any third party, Products that have been specially designed for the Customer, provided that it does not under any circumstances use the Customer's graphic elements.
11. Personal data and right of opposition
The information collected during the preparation of the estimate is collected and recorded by the company for the purpose of performing the service and managing any complaints. Only the data strictly necessary for these purposes are kept for a period of three years. In accordance with Law 78-17 of 6 January 1978 amended by Law 2014-344 of 17 March 2014, known as the Data Protection Act, and European Regulation 2016/679 of 27 April 2016, you have the right to access, correct and delete your data. You may also object, for a legitimate reason, to the use of your data. If you wish to exercise these rights, you can send an e-mail or postal mail to the following addresses: email@example.com or by post to 6 rue Sigmund Freud 69120 VAULX EN VELIN / Sté BORACAY, specifying in the subject "Droit des personnes" and attaching a copy of your proof of identity.
In the event of a dispute, the Parties undertake, before any legal action is taken and unless there is an urgency or risk of prescription, to do everything possible to try to resolve the latter amicably. In the event of failure of the amicable discussions, any dispute relating to the conditions of formation or the execution of the contract shall be governed exclusively by the provisions of French laws and regulations. Whenever the status of the Parties so permits, the Commercial Court of LYON shall have sole jurisdiction to hear the dispute between the Parties, including in the event of multiple defendants.