M000GB025A___02
General terms & conditions of sale for professionals
Article 1
The client declares, on behalf of itself and its employees, that it has the professional capacity to use or allow use of the acquired device (hereinafter the "device") as defined in the special conditions, and has taken all steps to use or allow use of the device by a professional in accordance with its use and intended purpose, and in accordance with applicable regulations.
Article 2
The client agrees, under its sole responsibility, to install and use or allow someone to use the device with "due diligence", in accordance with its intended purpose and regulations in force, with prudence and diligence, to comply with the instructions of the user manual and safety measures, and to constantly maintain it in a good working condition. The client will take all necessary measures to ensure that the safety rules – legal, regulatory or issued by the manufacturer – are applied. Any modification, development or transformation of the device is prohibited.
Article 3
The seller cannot be held liable to the client or to third parties for the direct or indirect consequences, tangible or intangible, of a breakdown or device malfunction, which is not due to a defect existing at the time of the sale. In the event of failure, malfunction or breakdown during the warranty period, the client shall immediately cease using the device, notify the seller by any means and send written confirmation describing the circumstances within 48 hours.
In the event of late payment, and in accordance with current legislation since the 1st of January 2013 of the article L.441-6 of the French Commercial Code (Code du Commerce), a compensation will be due calculated at a rate equal to three times the statutory rate applicable as well as fees for recovery costs amounted to 40 euro.
Article 4
The client declares and warrants that it has "Professional Liability" insurance that covers the risks of using the device by itself and, where applicable, its employees.
Article 5
Rules applicable to the sale of device(s), accessories and consumables, hereinafter interchangeably referred to as the "product".
5.1.
All product orders imply acceptance by the client of and full compliance with the general terms & conditions of sale applicable to the product; these prevail over any other document the client may have, including all terms & conditions of purchase, unless otherwise agreed beforehand by E-Swin.
5.2.
An order means any order of one or more products sold by E-Swin, accompanied by payment of the deposit mentioned on the order form.
5.3.
Orders of consumables and accessories are exclusively made and paid for through the customer’s ‘Client Account’. The www.e-swin.com website has a security system in place for on-line payments in accordance with regulations in force. In particular, E-Swin never has access to confidential information relating to payment, which is why the client's bank details are required for each order.
5.4.
Any product order transmitted to the company is binding for the client unless otherwise agreed in writing by E-Swin.
5.5.
Any request to change the composition or quantity of an order(s) placed by the client will only be taken into account by E-Swin if the request is made in writing, including fax or email, and reaches E-Swin not later than 8 days after receipt of the initial order by E-Swin. If the client modifies the order, E-Swin is released from the agreed deadlines for its implementation.
5.6.
The delivery time of products ordered is only given for information and guidance, as it depends on the availability of carriers and is on a first come, first served basis.
5.7.
E-Swin strives to meet the delivery time indicated when the order is accepted, according to the logistical timeframe, and to execute orders, except for force majeure or in the event of circumstances beyond its control, such as strikes, freezing, fire, storm, flood, epidemic, supply difficulties, but not limited to this list. Delays in delivery cannot give rise to any penalty or compensation, or result in cancellation or termination of the order.
5.8.
Delivery of products is carried out ex-works. The transfer of risk on products sold is made upon delivery of products to the carrier or when they leave E-Swin’s warehouses.
5.9.
E-Swin guarantees that products sold by E-Swin are in working order, and have no defects or hidden defects that make them dangerous or unsuitable for normal use. This warranty is the warranty usually given by the Seller to the Client so that the latter may not request to benefit from a broader warrantee than granted. The costs to return the product as part of the legal guarantee, when sent from the "Client" to E-Swin, are to be borne by the customer. Postage costs from E-Swin to the “Client” are to be covered by E-Swin. The aftersales service of E-Swin is the only authority empowered to carry out the repair of products, including equipment under warranty.
5.10.
Unless there is damage on arrival, E-Swin will have no obligation to take back the faulty product; this should be handled through the aftersales service.
5.11.
All warranties exclude defects and damage from external events, accidents, including electrical accidents, wear and tear, installation and usage that does not comply with the user instructions enclosed with the product or non-compliance by the client of any of the obligations set out in Article 2 above.
5.12.
The warranty also excludes products that have been modified, repaired, integrated or added to by the client or any other unauthorised person. The warranty will not apply for obvious defects and product conformity defects for which the claim has not been made within the contractual period featured in paragraph 5.9 above, under penalty of forfeiture. The warranty will not support products that have been damaged during transport or misuse.
5.13.
The provisions of this Article shall not prevent the legal warranty for latent defects, as defined in Article 1641 of the French Civil Code, when the product is sold to a consumer or non-professional.
5.14.
In the event of damage or missing items upon delivery, it is the client’s responsibility to make all the necessary claims with the carrier.
5.15.
Any products not subjected to claims by registered letter with acknowledgement of receipt within 3 days of receipt from the carrier, pursuant to Article L. 133-3 of the French Commercial Code, with a copy sent simultaneously to E-Swin, shall be deemed accepted without reservation by the client.
5.16.
Independently of any steps to be taken by the client vis-à-vis the carrier in the event of defects or missing parts, any claim of whatever nature relating to the products delivered will only be accepted by E-Swin if it is made in writing by registered letter with acknowledgement of receipt within a period of 3 days from delivery. It is the client’s responsibility to provide any evidence of defects or missing items reported. No return of goods can be made by the client without the prior written approval of E-Swin, obtained by fax or email.
5.17.
Return costs will only be refunded by E-Swin if an apparent defect, or missing part, is indeed found by the latter or its agent.
5.18.
If, after checking, an apparent defect or missing part is indeed found by E-Swin or its agent, the client will only be able to ask E-Swin for the replacement of the non-compliant products and/or addition to be made to replace the missing parts, without being entitled to any compensation or resolution of the order. Receipt of products ordered without reservation covers all visible defects and/or missing parts.
5.19.
Any claim made by the client according to the terms and conditions described above do not suspend payment of the relevant products by the client.
5.20.
E-Swin may in no circumstances be held liable for acts happening during transport, destruction, damage, loss or theft, even if it chose the carrier. In the event of full non-payment of an invoice after the due date, and after formal notice has remained unanswered within 48 hours, E-Swin reserves the right to suspend deliveries in progress and/or future deliveries.
5.21.
The current prices may be revised at any time after notice has been given. Any tariff changes will automatically be applied as of the date shown on the new tariff.
5.22.
Transfer of ownership of products is suspended until full payment by the client (for the device and accessories, if any), even in case of deferral of payment. Any contrary clause, notably inserted in the general conditions of purchase, shall be disregarded, pursuant to Article L. 624-16 of the French Commercial Code. By express agreement, E-Swin will be able to use the rights it has under this reservation of title clause, for any of its debts, on all of its products which are in the possession of the client, if the products are unpaid, and E-Swin may recover or claim them in compensation of all its unpaid invoices, without prejudice to its right of rescission of sale in progress
5.23.
Events beyond the control of the parties are considered to be cases of force majeure as they could not reasonably be expected to foresee, avoid or overcome them, to the extent that their occurrence makes execution of obligations completely impossible. Also assigned to force majeure or fortuitous cases, thus discharging E-Swin from its obligation to deliver within the time period originally planned, are: strikes by all or part of the company’s staff or its usual carriers, fire, flooding, war, production downtime due to accidental failures, inability to obtain supplies of raw materials, epidemics, thawing, roadblocks, strikes or rupture of power supply or supply disruption for reasons not attributable to E-Swin, and any other cause of supply disruptions attributable to E-Swin suppliers. In such circumstances, E-Swin will notify the customer in writing, including by fax or email, within 24 hours of the event occurring; E-Swin’s obligation towards the client will be suspended with full rights without compensation from the date of the occurrence of the event.
Article 6
Any other document than these general terms & conditions, including catalogues, brochures, advertisements and notices, is merely informative and indicative, and non-contractual.
Article 7
By express agreement between the parties, this contract is subject to French law and any dispute or contest shall be referred to the Commercial Court of Versailles, France, which has complete jurisdiction.