GENERAL TERMS AND CONDITIONS OF SALE
COMPANY AFIRE SARL
- Subject matter
- These general terms and conditions of sale hereinafter «the General Terms and Conditions») govern the relationships between the private limited liability company AFIRE S.à r.l. (hereinafter « the Company ») and its client (hereinafter « the Client ») (hereinafter together referred as « the Parties » or individually « a Party »).
- These General Terms and Conditions are intended to be applied to all quotations made by the Company. These General Terms and Conditions are part of the contract entered into between the Company and the Client.
- Additional conditions or specific derogations to these General Terms and Conditions may be agreed between parties in other contractual documents, notably in a purchase order relating to a product marketed by the Company.
- If there is a conflict or inconsistency between (i) les General Terms and Conditions of sale and (ii) the provisions of an offer, of a purchase order or of any other specific contractual document approved by the Company and the Client, the latter shall prevail.
- Formation of the contract
- All quotations and proposals issued by the Company are sent for information purpose and are without obligation for the Company.
- The Company shall be bound by an offer or a quotation only upon the express approval of the Client, by way of signature of a purchase order or by email and as the case may be, after receipt by the Company of a deposit which amount is determined in the offer or the quotation.
- The sending of the purchase order by the Client to the Company and, as the case may be, the payment of the deposit shall be binding on the Client.
- In case of cancellation or revocation of the order by the Client, or if the Client is in breach of any of its obligations, the Company shall be entitled to value its damage at an amount that cannot be lower than 20% of the total amount that should have been paid by the Client in accordance with the order, without prejudice to the right of the Company to claim any further or higher damage or to claim the enforcement of the contract.
- Price, invoicing and payment terms
- The prices appearing in all quotations, proposals, purchase orders and other contractual documents issued by the Company are expressed without VAT or other duties applicable in Luxembourg or abroad, unless express indication thereof.
- The costs of delivery, control, receipt as well as any other ancillary costs are excluded from the invoice and are payable by the Client in principle, unless said costs are expressly indicated payable by the Company.
- The prices specified in the quotation issued by the Company are based on the good’s value as at the date of the issuance of the offer. The quotation will remain valid for a period of maximum thirty (30) days from the date of communication by the Company to the Client, unless otherwise expressly indicated in the quotation.
- Delivery time for the goods is for information purposes only and shall not be binding the Company, considering that the goods are delivered by a third-party carrier. In the event of non-delivery of a good by the time indicated to the Client, the Company will inform the Client and will indicate a reasonable new delivery period. In the event of absence of delivery within the extended time period, the Company will contact the Client and the Client will be entitled to cancel the order and to require the reimbursement of any deposit, down payment or price already paid to the Company, as the case may be.
- The invoices are issued in Euros and are payable within thirty (30) days of the invoice date.
- Any delay in payment shall rightfully and without further notice triggers interests at the applicable legal interest rate calculated in accordance with the provisions of the law dated 18 April 2004 implementing under Luxembourg law the directive 2000/35/EU dated 29 June 2000, as amended and in force at the time of the purchase order. Interests are calculated from the due date on a daily basis, until all payments have been received by the Company. For the purpose of this provision, default interests apply as from :
- Thirty (30) days after the date of receipt of the invoice by the Client where the Client is a businessperson or is purchasing the goods in the course of its business activity;
- Immediately after the end of the third month following the delivery of the goods where the Client is a consumer under applicable law.
- Any recovery costs that the Company may incur will be charged to the Client.
- Any refusal of payment for any reason whatsoever shall be noticed to the Company within thirty (30) days from receipt of the invoice. Any invoice not disputed within that period shall be deemed to have been definitively accepted by the Client.
- In the event of default of payment of an invoice on its due date and until settlement in full of said invoice increased by any costs and interests, the Company shall be entitled to suspend further deliveries to the Client, without prior notice.
- In the event of winding-up, liquidation, insolvency, bankruptcy or other analogous insolvency proceeding, any receivable of the Company against the Client shall become immediately due and payable.
- Delivery costs, taxes and custom duties
- Deliveries of goods in the Grand-Duchy of Luxembourg are carried out at the address of the Client.
The prices indicated on the purchase order are expressed in Euros, Luxembourg duties and VAT included, as applicable as of the date of the purchase order.
The Company may charge delivery costs.
- Deliveries of goods outside the Grand-Duchy of Luxembourg are carried out by carrier, from the warehouse of the Company and at the address indicated by the Client. However, in certain cases the delivery may be carried out from the supplier of the Company directly at the address indicated by the Client.
The Company shall be entitled to freely select and change third-party carriers.
Delivery costs depend on the country of delivery and shall be paid by the Client. Time and carrier’s costs may be amended at any time by the carrier.
As the goods are carried and delivered by third-party carriers, the Parties acknowledge and agree that delivery costs that may appear in contractual documents are for information purpose only and shall not be binding on the Company to the Client, without prejudice of the provisions of article 3.4 of these General terms and Conditions.
Risks of transport of goods remain with the Company until delivery of the goods to the Client, formalized by the signature of the delivery note by the Client.
The Client acknowledges and agrees that if he indicates an address located outside the European Union, any transportation and delivery costs, custom duties, value-added taxes and any other duties that may apply in its jurisdiction are not included in the sales price indicated in the Company’s offer, nor in purchase order; any such amount shall be discharged by the Client in addition to the Sale’s price of the goods.
Furthermore, in the specific case of an order shipped directly to the Client from the Company’s supplier (which is located outside the European Union), custom duties may apply in accordance with local regulations and international agreements applicable from time to time. Such regulations and international agreements may be amended without prior notice and the Company cannot reference them on a permanent basis. Custom taxes and duties are calculated and payable at the time of import of the goods in the territory of importation. Therefore, in this particular cases the invoices of the Company are issued free of custom duties, VAT and of freight costs.
Concerning these specific cases, (i) of shipment of merchandises directly from the Company’s supplier (located outside the European Union) or (ii) of delivery in a territory located outside the European Union, applicable custom declarations and clearances are generally applied by the carrier of the goods. The carrier may contact the Client to obtain payment of applicable custom duties and VAT before delivery of the goods to the Client. The carrier may further charge its own costs for these services.
If the amounts required by the carrier are not paid in accordance with the carrier’s terms, the goods may be seized by custom services or returned to the supplier. The Company cannot be held responsible in case of non-delivery due to the detention of the goods by custom services. In addition, the Client is not entitled to claim the cancellation of the order nor the reimbursement of any amount already paid.
- The Company reserves the right to use other means of delivery or shipment.
- Obligations of the Client
- The Client shall comply with its obligations under the purchase order and these General Terms and Conditions of sale.
- The Client agrees and undertakes to assist the Company, where necessary, to perform the order and the effective delivery of the goods.
- Delivery – Apparent defects
- All goods delivered shall be inspected by the Client at the time of delivery. Any comment or apparent defect stated by the Client at delivery shall be indicated on the delivery note, failing which the Company shall be entitled to consider that the Client has approved the goods and to refuse delayed complaint noticed by the Client in respect of apparent defects.
- If the Client fails to take delivery in due course of a good that he ordered, or if the Client renders the delivery impossible due to his absence, the indication of a false address or any other reason whatsoever attributable to the Client, he Company shall be entitled to immediately invoice the price increased by any other costs incurred in respect of the non-delivery of the good to the Client.
- The warranty afforded by the Company in respect of goods delivered to the Client shall be limited to that granted by the applicable regulation and these General Terms and Conditions. Rights of recourse of the Client against the Company are limited to these warranties.
- The Company warrants that any good delivered should be of good quality, safe of defects in relation with their parts, finished, suitable for use and fulfilling the legal requirements and applicable regulations in the territory of destination, for the period of time as set in article 7.3 hereafter, subject to the following conditions :
- The Client has strictly complied with any and all instructions provided to the Client by the Company, its supplier or the manufacturer regarding the installation, use and maintenance of the goods ;
- The goods have been used for their intended purpose solely ;
- Repairs and modifications to the goods were executed by the Company or by a third party approved by the Company ;
- The good has not been damaged ;
- The good is owned by the first final user ;
- Any amount due and payable to the Company by the Client has been paid in full.
- The warranty is applicable to all goods provided by the Company for a duration of twenty-four (24) months from their date of delivery to the Client.
- If there is a material defect in a good or one of its parts, the Client shall :
- Notify this defect by the Company, by registered letter with notice of receipt sent to:
76, Grand Rue L-1660 Luxembourg
- Such notice shall be sent within eight (8) days from the date the damage occurred and shall be received by the Company before the expiry of the warranty period ;
- Such notice shall indicate the serial number of the good, its model and invoice number, as well as a description of the error and any other relevant information ;
- As the case may be, the Client shall comply with any instruction of the Company in respect of the recovery by the Company or the return of the defective material to the Company.
- If, upon the Company completing the analysis, a good or an equipment turns out to be non-defective or if it is stated that the defect arises from a non-compliant or inadequate use of the good by the client, the Company shall have no obligation and may be entitled to invoice the Client costs relating to the analysis of the allege defect affecting the good or the equipment.
- In accordance with the warranty set forth above and subject to the above-mentioned reservations, the Company undertakes to repair or replace, at its choice and without costs for the Client, any good showing a material defect or a failure, or not fit for its purpose, that appears during the warranty period, except in case of defect or failure due to normal wear and tear.
- In case of defect of minor importance, the Client shall be entitled to a price reduction or partial reimbursement. In all circumstances the Client shall use reasonable efforts to minimize his damage and will not be entitled to any further indemnification whatever be the grounds of the claim.
- The Company does not guarantee that the products it supplies are suitable for the specific use intended by the Client nor fits the needs of the Client.
- The above-mentioned warranties granted by the Company shall be without prejudice of any legal warranties that may benefit to the Client in accordance with applicable laws and regulations.
- The Company shall not be responsible for any inadequate use or incorrect installation of the goods by the Client or by any third party, or for damages arising from the use of the goods for purposes other than those for which the goods are intended for use in accordance with the instructions supplied with the goods.
- The Company shall not incur any liability if a defect arises from :
- Any act or omission by the Client or a third party ; or
- if the merchandise has been repaired or modified by the Client or by a third party without prior approval of the Company ; or
- if the defect results from a misuse, an electric stress or a failure to use the good in accordance with specifications and instructions supplied by the Company or the manufacturer, or
- the use or failure of using the manual instructions supplied with the goods by the Client.
- The Company shall not be held liable for any indirect or consecutive damages including, without being limited to, loss of earnings or missed savings. In no event will the Company be held liable by the Client for consequential direct or indirect damages such as loss of profits, loss of earnings, interruption of business, loss of competitive advantage, third parties claims or any other economic damage, without this list being exhaustive.
- The Company shall not be held liable for damages caused by adverse weather events (such as moisture, water, floods, fires, air temperature, lightning…), in case of short-circuit or due to deterioration or distress of the place where the products are installed, or damages in relation with the business activity of the Client.
- The liability of the Company arising out any breach of its contractual obligations will in any event be limited to the prices of the merchandises and up to the amounts that have actually been paid by the Client.
- Cancellation – force majeure
- The Company may terminate an order in case of default of the Client to perform its obligations. In this case, the Company shall not be held responsible for any delay or failure to fulfill totally or partially its obligations, nor for any costs, damages or losses that might be claimed by the Client as a result of such cancellation. The cancellation will be noticed by registered letter with notice of receipt sent at the address indicated by the Client in the purchase order.
- Such a cancellation by the Company shall be without prejudice of the rights and receivables held by the Company against the Client. The Company shall notably be entitled to claim the payment in full of any goods already delivered and of any goods ordered by the Client when such order has already performed by the Company and cannot be cancelled, as well as costs and other expenses incurred by the Company.
- A Party shall not be held responsible for the total or partial non-fulfilment of its obligations where such non-fulfilment of obligations is due to force majeure or to an external cause or to any other cause outside the control of said Party or rendering the performance of its obligations impracticable.
- If an event of force majeure occurs, the Party not able to perform its obligations due to this event shall inform the other Party within seven (7) days after said event occurs. The Parties shall jointly agree on the appropriate way to proceed and as the case may be the rules to perform the order as regards these exceptional circumstances.
If the performance of the order has finally become impossible, the Company is authorized to cancel the purchase order with immediate effect and the Company shall inform the Client by registered letter with notice of receipt. In that case, the Company shall not incur any liability whatsoever. The Company remains entitled to obtain payment of the price for any goods actually delivered to the Client. The Client is entitled to obtain reimbursement of any amount already paid in respect of purchase orders cancelled by the Company.
- Reservation of title
- Any good delivered to the Client shall remain the property of the Company until performance in full by the Client of all his obligations under a purchase order and these General Terms and Conditions, notably until payment in full of the price, taxes and ancillary costs. Should the goods be delivered to the Client before payment in full of the price, the Client shall possess such merchandises in the name and on behalf of the Company and in a state allowing the identification of the Company as the owner of such goods. The Client undertakes not to transfer or assign and to maintain control over the goods and any of their equipment and parts until payment in full of the price.
- Intellectual property
- Any intellectual property right owned by the Company and/or by a manufacturer of the goods shall be and remain at any time the sole and exclusive property of the Company andor of the manufacturer.
- Any provision of these General Terms and Conditions of sale, of an offer or of a purchase order shall in no way imply a transfer or an assignment to the Client of any intellectual property right owned by the Company and/or a manufacturer.
- The Company grants the Client a personal, non-transferable, and non-exclusive right to use the intellectual property rights of the Company and for the sole purpose foreseen between the Parties in the contractual documents.
- Processing of personal data – General Data Protection Regulation (GDPR)
- The Client acknowledges and agrees that the enforcement of the contractual relationship established between the Company and the Client requires the collection and processing of personal data of the Client by the Company. The Company will store and process the data with the sole purpose to perform its contractual obligations to the Client and to comply with its legal or regulatory obligations.
- The Company agrees to process the data communicated by the Client in accordance with the applicable laws and regulations and notably with the provisions of the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”).
- The Company processes certain personal data relating to the Client, such as its contact details, identification data and financial data, for the purpose of the performance of the contract. Such data is collected for the following purposes: (i) to enable the performance of the contract; (ii) manage the relationship with the Client; (iii) monitor the services provided; (iv) billing; (v) business relationship between Parties (marketing); (vi) collection of outstanding payments; (vii) disputes, and (viii) compliance by the Company with its legal obligations.
- The Company retains the Client data for a period necessary to achieve the objectives for which they were collected, or for a period allowing the Company to comply with its legal obligations.
- The Company takes all necessary and reasonable technical and organizational measures to ensure a high level of safety of personal data processed by it and to protect such data against accidental or unlawful destruction, accidental loss, alteration, unauthorized access or disclosure or other unlawful processing.
- Access to the Client’s personal data is strictly limited to employees of the Company on a « need to know » basis and who are subject to confidentiality duties.
- The Client further acknowledges and agrees that the Company may communicate his personal data to the Company’s suppliers and to the carriers appointed by the Company to perform the Client’s order. The Company ensures that its suppliers use the Client’s personal data in compliance with the regulation governing personal data protection. In addition, the Company may be obliged to communicate the Client’s personal data in accordance with certain legal obligations or for dispute resolution processes.
- The Client hasa right of information, access, rectification and deletion for any personal data concerning him, in accordance with the provisions of the GDPR. The Client may further object to processing or request its limitation for legitimate reasons. The Client may exercise his rights at any time in a written request addressed to the Company (AFIRE S.à r.l., 76, Grand Rue, L-1660 Luxembourg).
- By completing and using the contact form, the Client acknowledges and agrees the gathering and use of his personal data by the Company in accordance with the above conditions.
- The Company reserves the right to modify the provisions of the General Terms and Conditions of sale at any time and without notice.
- In the case any provision of these General Terms and Conditions or of any other contractual document would become, totally or partially, void, inapplicable or unlawful, any and all other provisions of these General Terms and Conditions of sale and of other contractual documents shall remain valid and binding on the Parties.
- Applicable law – Jurisdiction
- Luxembourg law governs any and all contractual relationships existing between the Company and the Client as well as any and all contractual documents binding the Company and the Client, including these General Terms and Conditions, without prejudice of the application of mandatory consumer regulations that may be applicable in respect of the Client, as the case may be.
- In case of dispute, courts of Luxembourg-City shall have jurisdiction for any litigation relating to or arising in respect of contractual relationships existing between the Company and the Client.