1. ARTICLE 1 – GENERAL CLAUSES
1.1 The purpose of these Sales General Terms and Conditions is to define the terms and conditions under which the sales are concluded between SAS DAIRON (hereinafter referred to as “our company” or “SAS DAIRON”) and its professional clients established in France and internationally. These Terms and Conditions nullify and supersede the previously applicable Terms and Conditions. The products sold by SAS DAIRON correspond to so-called catalogue products or to products made specifically according to the needs and criteria defined by the customer, the ordering process varies according to the type of products.
1.2 Unless otherwise expressly stipulated in writing granted by SAS DAIRON to its customers, our sales are always made under the conditions described below.
1.3 Any order of the customer or acceptance of a quotation issued by our company results in the customer’s acceptance of the present conditions, unless expressly agreed by our company. The Customer hereby declares that it expressly and unreservedly accepts these terms and conditions which prevail any other document drawn up by the Customer or any other structure in relation to the Customer and which constitute the sole basis for commercial negotiation, in accordance with the provisions of Article L. 441-1 of the French Commercial Code. These general terms and conditions will apply even if the customer refers to other general terms and conditions in his documents and in particular to his general terms and conditions of purchase. These General Terms and Conditions shall also apply to all subsequent transactions between the parties, including without express agreement to do so.
In particular, the customer shall refrain from submitting or attempting to submit our company to conditions that reveal a significant imbalance in the rights and obligations of the parties. In addition, the customer is prohibited from requiring our company to align its conditions with commercial conditions which the customer would consider more favourable and which would have been granted, in a particular capacity, to other customers.
1.4 Any document other than our Sales General Terms and Conditions and in particular, catalogue, prospectus, advertisement, leaflet has only an informative and indicative value. The French version of these General Conditions shall prevail over any translation made of them.
1.5 Our company reserves the right to suspend its deliveries and/or to resolve the sales not yet delivered and/or to refuse to sell to its buyers carrying out resales not in conformity with the legal obligations or in case of default by the buyer to one of its obligations arising from these sales general terms and conditions.
1.6 The possible cancellation of one or more clauses of this document will not affect the validity of the other clauses. Our company reserves the right, as an independent company, to subcontract all or part of its contractual obligations, without the prior agreement of the customer. The customer expressly acknowledges our company’s right to avail itself of the customer’s supplier status as an advertisement. Our company will thus be free to display on its advertising documents or to indicate to any third party the legal name or any other distinctive sign of the customer after the execution of the order. Our company will nevertheless refrain in this context, from any acts that would be liable to damage the image or reputation of the customer.
2. ARTICLE 2 – ORDER / QUOTATION
2.1 Since the machines are listed in the catalogue, the contract is deemed to be concluded in the event of written confirmation by our company. With regard to the parts listed in the catalogue, the acceptance of the customer’s order results from the shipping of the parts by means of a delivery voucher by our company. In all cases, orders and order confirmations are placed within the limits of available stocks.
2.2 With regard to the products made specifically according to the needs and criteria defined by the customer, any intervention of our company is subject of an estimate, detailed and personalized quotation addressed to the customer. In the event of a quotation thus made by our company, any request from the customer will be taken into account after receipt by our company of the signed quotation, dated and accompanied by the deposit. Unless otherwise stipulated, quotations shall be valid for thirty (30) calendar days from the date of issue. After this deadline, our company’s commercial proposal must be considered null and void. A new quotation will therefore have to be requested by the customer. In this context, the contract is valid between the parties only in the following two alternative cases:
– receipt by our company of the quotation signed by the customer;
– in the event of the commencement of performance of the contract by our company.
2.3 The client will have to provide our company with all the useful information to enable it to best quantify the services and assess the feasibility of the project. The customer thus undertakes to provide all documentary, visual, photographic, textual and technical elements agreed between the parties for the proper performance of the contract. The communication and accuracy of the information transmitted by the customer will depend on the proper performance of our company’s obligations. As such, our company considers as sincere and true all the information communicated to it by the customer who undertakes to inform our company in writing with notice of return and as soon as possible, in the event of changes of any of this information. The customer remains responsible for the content and accuracy of the information that he transmits to our company. In this respect, the customer remains responsible for the content and accuracy of the information it transmits to our company and guarantees it against any legal action that would find its source in the said information.
2.4 Modification / Cancellation
No total or partial cancellation or quantitative or qualitative change of order can be accepted without written agreement of our company. In any event, any total or partial cancellation or quantitative or qualitative modification of the order requested by the customer may be taken into consideration only if it has been received in writing before the order confirmation or, failing this, the shipment of the machine or part of it (spare). Any changes to orders desired by the customer could, in the event of express acceptance on the part of our company, give rise to a change in prices and delivery schedule.
Furthermore, in the case of customer tailor-made machines, no total or partial cancellation or quantitative or qualitative modification may be accepted by our company from the confirmation of the order by our company or the acceptance of the quotation by the customer.
In the event of cancellation or modification of order or quotation by the customer not in accordance with the present document, the installments paid will not be returned, without prejudice to any damages to be incurred.
Unless otherwise stipulated, the customer must pay to DAIRON SAS a 20% (TWENTY PERCENT) deposit of the amount of the order or quotation excluding taxes, on the day of the confirmation of the order by DAIRON SAS to his customer or, in the event of a quote, upon acceptance by the customer. In the absence of effective payment of this deposit, the contract is automatically cancelled and our company is immediately released from all obligations towards the customer.
3. ARTICLE 3 – LIVRAISON
3.1.1 The delivery times are given only for information and indicative purposes within the limits of available stocks and depending on the possibilities of technical realization and in particular the availability of supplies and the customer’s requests.
3.1.2 Any delay in delivery may not give rise to the payment by DAIRON SAS to the customer concerned of penalties, damages or indemnities, except in serious misconduct of DAIRON SAS.
3.1.3 Any delay with regard to the delivery deadlines possibly foreseen cannot justify a termination of the order, except serious fault of SAS DAIRON.
3.1.4 Unless otherwise stipulated, deliveries will be considered to be achieved by delivery of the products to the customer or to a carrier on the premises of our company.
3.2 Risk Transfer
3.2.1 The receipt of the products and the risk transfer will take place, unless otherwise stipulated, from the making available of the products on the premises of our company. In this context, the number and status of the products will be verified by the client or his representative
3.2.2 It follows in particular that the goods travel at the risk of the customer. He will have to insure accordingly and bear the burdens.
3.3 For the export, unless specifically agreed between the parties, deliveries are subject to the EX WORKS Incoterms 2020 (72230, Mulsanne) incoterm.
3.4.1 It is customer’s responsibility, in case of damage to the machines delivered or missing, to accept under reserve to the carrier, as soon as they are received, on the transport receipt. These reserves must be confirmed by extrajudicial document or by registered letter with acknowledgement of receipt with the carrier within 3 (three) days following the date of receipt of the goods, with a copy to our company. It is the customer’s responsibility to provide the carrier and our company with any justification as to the reality of the defects or anomalies found. In this regard, it is recalled that the mention “subject to unpacking”, or any formula of this type not expressly mentioning the defect or anomaly found, cannot be interpreted as a handwritten reserve.
3.4.2 Without prejudice to the arrangements to be made by the customer vis-à-vis the carrier as described in Article 3.4.1., in the event of apparent defects or shortages, any claim of any kind relating to the machines delivered will be accepted by SAS DAIRON only if it is received in writing by registered letter with acknowledgement of receipt to our company within 8 (eight) days following the receipt of the machines. The unreserved receipt of the machine by the buyer covers any apparent defects. In the absence of compliance with these clauses, the delivery will be considered as being in conformity with the order and no dispute regarding the conformity of the products can be admitted.
3.4.3 It is the customer’s responsibility to provide all the justifications as to the reality of the defects or deficiencies found.
3.4.4 The customer must help our company to proceed with the identification of these defects or anomalies and/or to have carried out all the checks that he deems necessary.
Only DAIRON SAS or any person duly authorized by it may carry out these checks and verifications.
3.4.5 The customer cannot refuse or return the products or automatically invoice or deduct from the amount of the invoice established by our company penalties or discounts corresponding to the non-compliance of a delivery date or corresponding to an alleged non-compliance of the products, if they are not certain, payable and liquid and without our company having been able to control the reality of the corresponding grievance and in any event without our company’s consent. Where late penalties have been agreed between the parties in the event of non-compliance with a mandatory time limit, the customer must inform our company of any delays or non-conformities that it considers likely to give rise to the application of said penalties in order to allow our company to make its observations.
No machine returns may be made by the customer without the express prior written consent of SAS DAIRON. The possible recovery of the goods/spare parts by our company can be carried out only if the customer has obtained a prior, express and written agreement from our company. Any part returned must be in perfect condition and in its original packaging. The costs and risks of returning the goods/spare parts shall be borne by the customer. Any return of parts made in accordance with this agreement will result in the choice of our company the establishment of a credit to the customer or the replacement of parts, after qualitative and quantitative verification of the returned goods. In any case, any part returned under this clause will be discounted by 20% with a minimum of €20.
4. ARTICLE 4 – PRICE
4.1 The prices shown on the tariffs, catalogues or any other document are for information purposes only.
4.2 The prices applied are those in force on the day of the order or, in case of quotation, those appearing on the quotation addressed to the customer. Our company reserves the right to change its rates at any time.
4.3 Our prices are net and excluding ex-works taxes, the VAT applicable being the one in force on the day of the invoice. All ancillary costs, such as transport, insurance, transit and import costs, as well as other authorizations and certifications, shall be borne by the customer. The customer shall also bear all taxes, taxes, contributions, customs duties and other charges levied in connection with the contract and shall refund it to our company, upon presentation of proof, to the extent that our company should have paid it.
5. ARTICLE 5 – PAYMENT
5.1 Procedures and time limits
Unless otherwise stipulated, our invoices are payable at the head office of our company by cheque or draft accepted without modification at 30 (THIRTY) days invoice date.
Only the actual cashing of cheques or drafts will be considered as full payment within the meaning of these sales general conditions. No discount is granted in the event of advance payment.
Any discounts granted by our company are only applicable if the customer is up to date with his obligations towards our company and in case of absence of disputes between the parties. The various discounts granted by our company are applied in cascade.
Failure to pay an invoice due will, automatically and after prior notice of default, result in a late payment penalty corresponding to the interest rate charged by the European Central Bank for its most recent refinancing operation plus ten points (the rate to be taken into account is the rate in force on 1 January, for each invoice issued in the first half of the year and the rate applicable on 1 July, for each invoice issued in the second half of the year) and for the application of a flat-rate indemnity for recovery costs of €40, without prejudice to the payment of all costs of justice, proceedings, action or recovery. Penalties are payable the day following the payment date on the invoice, without the need for a reminder.
5.3 In progress order suspension
Without prejudice to the implementation of the retention of title clause stipulated herein, failure to pay all or part of the price by the agreed deadline may result in the suspension of orders in progress until the resolution of the payment incident, the refusal of any new order by the customer and the immediate liability of any other sum remaining due, due to this order or other orders delivered or in course of delivery. All extra-judicial collection costs are the sole responsibility of the client, in addition to legal interest.
5.4 New Customers / Payment Guarantees
For any first order of new customers as well as for customers with financial difficulties, our company reserves the right to request a cash payment. More generally, our company reserves the right, at any time, depending on the risks involved, to set a ceiling on the amounts due by the customer and/or to require certain payment deadlines or guarantees.
6. ARTICLE 6 – CLIENT’S OBLIGATIONS
6.1 In the event that the realization of the products by our company would require the supply of specific products, documents or information from the customer, the latter undertakes to transmit the requested elements as soon as possible. In this regard, our company shall not be liable for any guarantee or liability arising from a failure to perform its obligations if such failure is due, even partially, to a delay or a failure to supply the product, document or information. The customer therefore undertakes to make every effort to facilitate his availability to our company, in order to enable him to realize the products ordered under the best conditions.
6.2 If during the production of the ordered items, the customer is asked by our company to give his agreement, he must answer within five (5) calendar days following this request, the time of execution being suspended until the obtaining of this agreement. In the absence of a reply within this period, our company cannot be held liable for an extension of the deadline or for changes to the agreed terms.
6.3 Our company cannot be held liable under any circumstances for errors attributable to the customer and for the harmful consequences of any decision taken by the customer or by a third party designated by the latter.
6.4 In case of non-compliance with the customer’s contractual obligations, our company reserves the right to suspend the performance of its obligations, after formal notice. In this case, a delay in the performance of the obligations due to a default of the client cannot, by express agreement, give rise to compensation for the benefit of the client.
7. ARTICLE 7 – RETENTION OF OWNERSHIP
7.1 The products sold by our company remain its property until the full payment of the total price, costs, interest and accessories by the customer. However, the risks are transferred as soon as the products are delivered. In any event, the products in stock at the customer will be presumed to be those unpaid. In case of resale of the products by the customer, either in the state or after transformation or installation, the customer undertakes to transfer to our company the price paid by the sub-buyers up to the price of the products remaining to be paid. In case of default of payment, our company, without losing any other of its rights, may require by letter RAR the return of the products at the expense and risk of the customer. The customer will also bear any legal and legal costs. The customer will have to oppose by any means of law to the claims that third parties might be led to assert on the products sold, by means of seizure in particular, and immediately inform our company by any means so as to enable it to safeguard its interests.
7.2 During the term of retention of title, the machines must be insured by the customer against any risk of damage and liability caused or suffered by said machines.
In the event of a partial loss, the customer shall, at his own expense, pay for the restoration of the machines.
Insurance benefits will be paid directly by the insurance company to the client.
In the event of a loss, the claims arising from the insurance company will be acquired from our company by subrogation without prejudice to any remedy and action that may be brought against the client by DAIRON SAS.
7.3 The customer undertakes to inform DAIRON SAS of any fact likely to compromise his right of ownership.
8. ARTICLE 8 – GUARANTEES
8.1 Unless otherwise stipulated, our company grants the customer a contractual guarantee on its machines and spare parts under the conditions set out below. If this guarantee is not granted, the customer is informed that all costs relating to the interventions described below will be borne by him.
8.2. This warranty is strictly limited to the free supply of replacement parts, excluding transport and labor, and only if there is evidence of a defect or defect in material prior to and not apparent at the time of delivery.
This warranty is granted unless otherwise stipulated for a period of (12) months for machines and six (6) months for parts, the starting point of these periods being the date of receipt of the product by the customer. In order to benefit from this guarantee, the customer must register his machine or part upon receipt on the website of our company (www.rotadairon.fr). Failing this, the customer will not be able to benefit from this guarantee.
This warranty does not apply to products delivered in the United States.
8.3 This warranty applies to any material or construction defect not apparent at the time of delivery of the machines, inherent in the machine delivered and prior to the sale. Wear parts as indicated in the user manual and consumables are excluded from this warranty.
The following damages and/or costs are expressly excluded from this guarantee:
– Normal wear and tear on machinery and parts;
– By damage resulting from the negligence of the customer, or from non-compliance with the recommendations for storage, assembly, maintenance or use of the machines according to the machine data sheets, assembly or instruction instructions and/or other recommendations transmitted (maintenance requirements of the manufacturer in particular);
– Use not in accordance with the instructions of the machine manual, good practice of the profession or not appropriate;
– By using inappropriate materials (fuels, lubricants, etc.) or materials that do not comply with the manufacturer’s recommendations;
– By any modification of the machine or parts by the customer or a third party, without prior written authorization from our company;
– By the use and/or assembly of parts other than those of origin or not supplied by our company;
– By components that have been clearly disassembled and in particular those whose failure of a disassembly witness attests to their opening, without prior authorization from our company;
– Resulting from an accident, malice, war actions, attacks;
– Through weather events, natural disasters or chemical, electrochemical, electrical or similar reactions.
8.4 In any case, our company recalls that it cannot be held liable for the customer’s possible failures vis-à-vis its own customers and that this guarantee cannot be put into play in such a case. Finally, this guarantee is expressly excluded in the event that the defect(s) or anomaly(s) will be a case of force majeure as stipulated in article 9.4 of these general conditions.
8.5 The right to warranty is terminated prematurely if the customer or a third party makes inappropriate modifications or repairs to the machines sold by our company or if the customer, in the event of default, does not take all appropriate measures to reduce the resulting damage and does not give our company the opportunity to remedy it.
8.6 In any event and regardless of the event giving rise to the guarantee, the resulting costs are formally excluded from the guarantee:
– Transportation of parts in return,
– Machine transfer,
– Possible rental of replacement machinery,
– Grubbing or towing,
– Labour used for customer repairs,
– Labour outside the customer, used without prior written agreement from DAIRON SAS,
– Equipment or personnel immobilization,
– Business losses, profits or any financial harm to the customer.
8.7 To implement this guarantee, the customer must use the platform provided for this purpose in the “connexion dealer” section of the website of our company (www.rotadairon.fr) and must follow the indications specified in this regard. Any request for a guarantee which does not comply to this procedure and with the rules laid down cannot be taken into account. It is therefore up to the customer to provide any justification as to the reality of the defects found and in particular a diagnosis, photos and possibly videos demonstrating the defects and/or vices. Once the non-conformity, the defect or the anomaly duly recognized by our company and the replacement of the defective parts decided, our company will confirm if necessary its intervention under this guarantee to the customer.
8.8 Thermal engines equipped with certain equipment are expressly excluded from the present warranty granted by our company, these engines being covered by the contractual warranty of their manufacturer. Thus, for these engines, only the network of the manufacturer concerned or its duly authorized official representatives are authorized to intervene during the warranty period, our company does not intervene in this capacity.
9. ARTICLE 9 – RESPONSIBILITY / FORCE MAJEURE
9.1 The products sold by our company are sold for the intended use, destination, technical characteristics and allocation. Any different and/or non-conforming use totally releases the direct or indirect liability of our company. Our company declines in particular any responsibility for any damage caused to persons, or to the goods that could result from the non-compliant, inappropriate and/or denatured use of the products sold and in particular in case of storage in an inappropriate, obsolete or dangerous place.
9.2 The customer is obliged to comply with all its legal and regulatory obligations. In any case, our company cannot be responsible for defects and deterioration of the delivered products following abnormal or non-compliant conditions of use after their issue. Our company cannot be responsible for the following reasons in particular:
– The normal wear and tear of its products; –
– Deterioration or accidents resulting from negligence or lack of supervision;
– Damage resulting from modifications, incorporations or repairs of the products;
– Damage resulting from the customer’s failure to comply with the operating and maintenance instructions;
– Damage to products subject to abnormal stresses.
9.3 When the liability of our company is incurred as a result of a fault on its part, the reparation applies only to direct damages, personal and certain that the customer has suffered to the express exclusion of compensation for any indirect and immaterial damages and/or damages, such as financial damages, damage to the image, etc. The amount of damages that our company may be required to pay under the above conditions is in any event limited to the greater of the following two amounts: the specified price of the order or its insurance limit. The parties agree that this clause is accepted in view of the price negotiated between the parties and in view of the foreseeable damages of the customer in case of fault of our company.
9.4 The parties are automatically released from their respective contractual obligations, and their liability may not be incurred, in the event of the occurrence of a case of force majeure. ‘Force majeure’ means any event which makes it impossible or manifestly more difficult to perform an obligation because of the unforeseeable, irresistible, external nature of the event, two of these three criteria being sufficient to characterize the force majeure, in particular such as wars, riots, fires, floods, viruses, epidemics, pandemics, administrative or state decision to close all or part of the warehouses of our company and/or to limit its activity and/or that of its suppliers (in particular because of sanitary measures, containment, etc.), total or partial strikes of the transports, paralysis of road or other transport routes, disruptions of energy supply (EDF, GDF, Petroleum, etc.), blockages of telecommunications and computer networks, change of regulations, delays or failures in the intervention of external service providers such as suppliers or subcontractors… as well as any other event considered by law or jurisprudence as a case of force majeure. Each party may terminate outstanding orders by registered letter with acknowledgement of receipt in the event that a case of force majeure continues for more than one (1) month. In any event, during this period, no penalties can be applied to our company. The latter shall also be duly paid for all deliveries and costs incurred in the performance of its obligations.
10. ARTICLE 10 – INTELLECTUAL PROPERTY/ CONFIDENTIALITY
10.1 Unless otherwise stipulated or provided with documents by the customer, the studies, support, drawings, plans and documents made, delivered or sent by our company remain its property. They cannot therefore be communicated to third parties for any reason whatsoever by the customer.
These documents may not be used, represented, executed, adapted, translated or communicated to third parties without the prior written permission of our company, which reserves all rights of prosecution in case of breach of this rule. They must be provided upon request.
10.2 All manufacturing or business secrets or processes, as well as any specifications, financial, commercial or technical information, know-how, reports or other information of any kind relating directly or indirectly to the affairs of the Parties that would be disclosed by either Party to the other for the purposes of the negotiation and execution of this Agreement or of which they would become aware this occasion, shall, both during their contractual relations and after their termination, be kept strictly confidential by each of the parties who shall abstain, in addition, to disclose them in any manner or for any reason whatsoever and to use them for any purpose other than those provided herein. The Parties undertake to take all necessary measures to ensure compliance with the obligations resulting from this provision by all agents, employees or agents representatives and partners.
11. ARTICLE 11 – PERSONAL DATA / GDPR
Our company is responsible for the processing of personal data of customers it collects and processes in the course of its business activities. Our company processes personal data in order to ensure the management of its contracts, edit invoices, establish its accounting, prevent unpaid and possible disputes, constitute a client file. The purpose of this processing is to meet the legal and contractual obligations that weigh on our company, as a merchant. It also participates in the pursuit of its legitimate interest in being able to easily contact the undertakings with which it may request the services or with which it has a commercial relationship. The personal data of the customers processed by our company are transmitted to the members of its departments authorized to process them (such as members of its Accounting, Commercial, etc.), as well as to possible sub-contractors, respecting the regulations on personal data, and partners. Our company may also have to transmit the personal data of customers to private or public bodies, in particular under a legal obligation. Our company retains the personal data of customers in accordance with the principles of the regulations in force and the recommendations of the CNIL. In general, the personal data of customers are kept for 3 years from the last contact from the latter. This data can also be stored for 5 to 10 years under a legal obligation or in order to establish proof of a right or contract. The natural persons concerned have different rights regarding the collection and processing of their personal data. They may request access, rectification or erasure of their data. Where appropriate, they may also oppose or request the limitation of the processing of such data, they also benefit from the right to the portability of their data. Any natural person can define guidelines regarding the fate of his data after his death, and register them with trusted third parties certified by the CNIL. These rights can be exercised directly by mail (DAIRON SAS, D92, Les Hunaudières, 72230 MULSANNE) or by email (contacts.@rotadairon.fr)
12. ARTICLE 12 – COMPETENT COURT AND APPLICABLE LAW
In the event of a dispute concerning the present, the parties expressly agree that the competent court will be the commercial court of Le Mans (FRANCE) to which jurisdiction is expressly and in advance assigned, even in the event of an appeal in guarantee or of a plurality of defendants.
These conditions and their consequences are subject to French law.
13. ARTICLE 13 – WAIVER
The fact that one of the parties does not avail himself at any time of any of the clauses of this Agreement shall not be grounds for renunciation to avail himself subsequently of these same clauses.