GENERAL TERMS AND CONDITIONS OF SALEdated 15 March 2022 |
Article 1 : PURPOSE and INFORMATION
These general terms and conditions of sale (hereinafter referred to as "GTCS") are intended to establish the commercial relationship between the seller, SAS COTRAC, whose registered office is Route de la Centrale - ZI des Ansereuilles - 59136 Wavrin, France, registered in the Lille Métropole Trade and Companies Register under number 323 417 139 (Tel: 03 20 17 03 60, Fax: 03 20 17 03 61, email: [email protected]), hereinafter referred to as "COTRAC", and any professional customer, hereinafter referred to as the "Buyer", together referred to as the "Parties".
In accordance with Article L.441-1 of the French Commercial Code, these GTC constitute the sole basis of the commercial relationship between the parties.
Any order placed on the site visible at https://final-track.com/ (hereinafter the "Site") implies express acceptance of these terms and conditions. This acceptance is evidenced by a checkbox, and archived by COTRAC.
The Parties declare that they are fully aware of the conditions under which their consent to the present agreement was formed.
The Parties agree that in the event of a contradiction between various stipulations, even outside of the present, COTRAC's GTC shall prevail.
However, in the event of a discrepancy between these GTC and COTRAC's special conditions, the latter shall prevail over the former.
In accordance with the regulations in force, COTRAC reserves the right to deviate from certain clauses of these GTC, depending on the annual negotiations conducted with the Buyer.
COTRAC recalls that it has no contractual link with the Buyer's end customer, even in the case of direct delivery to this professional or private customer.
COTRAC may, moreover, establish General Terms and Conditions of Sale for specific categories, which deviate from these General Terms and Conditions of Sale, depending on the type of customer in question, determined on the basis of objective criteria. In this case, the Categorical General Terms and Conditions of Sale shall apply to all operators meeting these criteria.
Article 2: THE PRODUCTS
COTRAC provides the Buyer with the characteristics of all materials, consumables and/or machines offered for sale (hereinafter the "Products" or "Goods").
The information contained in COTRAC's catalogues, brochures and price lists is given for information only and may be revised at any time. COTRAC is entitled to make any changes it deems necessary.
However, in order to satisfy the quality, safety and availability of the Products as well as the normative provisions, COTRAC reserves the right to modify at any time, even after the order has been placed, certain characteristics of the Products, without however affecting the specifications of the essential characteristics or misleading the Purchaser.
The Buyer assures that he/she is aware of the specificity of the Products offered for sale, notably in terms of technicality, in particular relating to their environment, their installation or their maintenance.
Article 3: THE ORDER
3.1. The signing of an order form or the acceptance of a quotation implies the application of the GTC and contractually commits the Buyer to the payment of the agreed price, in principal and accessories.
3.2. The order may be placed by any means (in particular by e-mail to [email protected] or by fax) but in no case orally, in particular by telephone. In this case, the sale is concluded upon acceptance by COTRAC.
3.3. For orders placed exclusively on the Site, an order is registered when the Buyer accepts these GTC by ticking the box provided for this purpose and validates his/her order, after creating an account as indicated in Article 4. This validation implies the acceptance of the entirety of these GTC and constitutes proof of the sales contract.
The taking into account of the order and its acceptance are confirmed by the sending of an e-mail. The data recorded in COTRAC's computer system constitutes proof of all transactions concluded with the Buyer.
3.4. Any changes requested by the Buyer will only be taken into account, within the limits of COTRAC's possibilities and at its sole discretion, if they are notified in writing.
3.5. No cancellation of the order, in whole or in part, by the Buyer after its acceptance by COTRAC, for any reason whatsoever, will be accepted. In the event of cancellation due to force majeure as referred to in Article 12, any deposit paid at the time of the order shall be automatically acquired by COTRAC and shall not give rise to any reimbursement.
3.6 It is specified that the Buyer does not benefit from any right of retraction linked to his purchase.
3.7. All orders imply express acceptance of these stipulations.
3.8. In the event of temporary or permanent, total or partial unavailability of the Product, the Buyer will be notified by e-mail within 48 working hours (Monday to Friday) in response to his/her order or request for a quote. In any case, it is possible, due to the specificities of the order on the Site, that a Product declared available in the confirmation e-mail is no longer available in the minutes that follow.
In this case, the Buyer will be offered a similar Product or the cancellation of the order within 48 working hours.
The cancellation of the order will result in the reimbursement of the Buyer.
Article 4: THE ACCOUNT
4.1. Creation of the account
4.1.1. In order to be identified on the Site and to be able to place an order, the Buyer must have an account composed of his/her surname, first name, telephone number, delivery address (possibly an invoicing address if different from the delivery address), the registration number of the Registry and a reliable e-mail address.
4.1.2 He will be asked to choose a password associated with his e-mail address considered as his "login".
4.1.3. After verifying this information, he/she validates this information and the creation of his/her account.
4.1.4. COTRAC will confirm the creation of the account by e-mail.
The Buyer assures COTRAC that all information is true and reliable. He/she will therefore assume all the consequences of his/her statements made online.
Any connection to the Site is made by the conjunction of the "login" and the password and is assumed to be made by the Buyer.
These are inseparable, personal elements, the password being considered strictly confidential.
It is specified that any usurpation of identity engages the criminal responsibility of its author.
4.2 Operating mode :
4.2.1. The Buyer chooses on the Site, depending on available stocks, the visible Product.
4.2.2 He then clicks on the icon representing a trolley to add it to his order.
4.2.3. In order to validate the order, the Buyer must have an account as described in article 4.1.
4.2.4. The Buyer then validates his/her method of payment: this validation finalises the order. An order number is then sent to the Buyer by e-mail.
4.2.5 As soon as the payment system has been validated, the Buyer receives a summary by e-mail, at the e-mail address provided, detailing the Product(s), the volume, the unit price, the price excluding taxes and including all taxes, as well as the postage and packaging costs. The indicated price including VAT includes the additional indirect taxes due by COTRAC.
At any time during the ordering process, before validation, the Buyer may either add one or more Products, or cancel the order in whole or in part.
It is reminded that the final price is fixed in euros, including all taxes and includes the Product(s), packaging, wrapping and postage costs.
Article 5: PAYMENT and PENALTIES
5.1. COTRAC prices are net and exclusive of tax, including packaging and transport, for all deliveries to Metropolitan France. For any other destination, a specific quotation will be offered to the Buyer on request.
The Parties confirm that the methods of fixing the price comply with the provisions of Articles L.441-1 of the Commercial Code and 1164 of the Civil Code.
The prices do not include any customs duties or additional insurance, which shall be borne by the Buyer.
5.2. The agreed price must be paid by the Buyer either immediately when ordering online on the Site or within the time limit set out in the order form or the quotation.
5.3. In the latter case, and in the event of non-payment on the due date, the Buyer shall be charged, without prior notice, interest on the outstanding sums, including all taxes, equal to the interest rate applied by the European Central Bank to its most recent refinancing operation plus 10 percentage points (Article L.441-10 of the French Commercial Code).
5.4. For any delay in payment, the Buyer shall be charged, without prior warning or summons, the fixed legal penalty of €40 per invoice (Article D.441-5 of the French Commercial Code).
5.5. Late payment penalties are payable without the need for a reminder.
5.6. In the event of early payment, no discount will be granted.
5.7. In the case of instalments, a single late payment will result in the forfeiture of the term, without prior notification.
5.8. Reductions and rebates: the Buyer may benefit, depending on the volume purchased, from a percentage price reduction, in accordance with COTRAC's unit price scale communicated in accordance with the terms and conditions referred to in Article L.441-1 of the Commercial Code.
Article 6: DELIVERY
6.1. The Products are shipped within metropolitan France at COTRAC's expense.
6.2. The Buyer acknowledges that it is the carrier's responsibility to make the delivery, COTRAC being deemed to have fulfilled its delivery obligation once the Products sold have been handed over to the carrier who has accepted them without reservation.
6.3. The risk of loss, deterioration and theft shall pass to the Buyer as soon as the Goods are handed over to the carrier.
6.4 It is agreed that the incoterm "EXW loaded" shall apply to all foreign Buyers, even if COTRAC takes charge of the transport.
6.5. The delivery time specified at the time of the order on the Site, on the order form, on the quotation or on any other document is given as an indication, as COTRAC cannot substitute itself for the obligations and constraints of the carrier.
In the event of a delay of more than thirty (30) days in relation to the agreed deadline, the Buyer may request the cancellation of the sale. The advance payments already made will then be returned by COTRAC.
6.6. On the day of delivery, the Buyer must check that the product conforms to the order, in particular the quality and quantity delivered.
In the absence of precise and justified reservations about the condition of the Product, notified on the carrier's delivery note on the day of delivery or on the last day of delivery in the event of a split delivery, and confirmed to the carrier by registered letter with acknowledgement of receipt within three (3) working days, with a copy to COTRAC, the Buyer will be unable to subsequently claim that the Products do not conform to the order.
6.7 In the event of apparent non-conformity of the Product, the Buyer must notify and justify to COTRAC on the same day of delivery by e-mail to [email protected], with a request for acknowledgement of receipt, attaching the delivery note, any remark or observation justifying a possible total or partial return of the Product.
Failing this, the Product shall be deemed to be in conformity, without recourse by the Buyer.
In the case of custom-made Products, non-conformity is due solely to COTRAC's failure to comply with the specifications provided by the Purchaser. In the absence of this non-conformity, the Products are deemed to be in conformity and cannot be taken back, exchanged or refunded.
6.8. In the event of the return of the Product at the initiative of the Buyer and not attributable to COTRAC, the Buyer will be charged an additional handling, logistics and shipping fee.
In addition, the Buyer expressly accepts the following financial constraints:
- the reimbursement of the Buyer will be made after deduction of the shipping costs of the Product
- the reimbursement of the Buyer after deduction of any damage suffered by the Product (testing and scratching of rubber tracks and undercarriage components, etc.). The damage will be assessed by COTRAC upon receipt of the returned Product.
Article 7: PROOF AND SIGNATURE
7.1. The validation of the order and the acceptance of these GTC are binding on the Buyer and constitute proof of his consent to the act of purchase, in accordance with the provisions of articles 1316 and following of the French Civil Code.
7.2. Proof of the order and of the Buyer's electronic signature is stored on the server of the COTRAC Site host, whose date and time will be taken as proof.
7.3. COTRAC reserves the right to deposit, for the purpose of personalising the service, cookie-type files, subject to the Buyer's prior acceptance, when accessing the Site.
A cookie is a small text file placed on your hard disk by a web page server.
It cannot infect your machine and can only be read by the COTRAC server.
Article 8: RESERVATION OF OWNERSHIP and RISKS
8.1. COTRAC expressly reserves ownership of the Products sold until full payment of their price in principal, accessories and interest. In the event of non-payment of the price on the agreed due date, COTRAC may take back the Products, at the expense and risk of the Buyer, and the sale shall be cancelled by operation of law, if it so wishes, eight (8) clear days after receipt of a registered letter with acknowledgement of receipt which has remained without effect. The deposits already paid shall be retained by way of compensation and in consideration of the use of the Products from which the Buyer will have benefited.
Any clause to the contrary, in particular inserted in the general conditions of purchase that cannot be invoked against COTRAC, shall be deemed unwritten.
8.2. The Buyer is authorised to resell its unpaid products within the framework of the normal operation of its business, but it may in no case pledge or grant security over its unpaid products in stock.
In the event of resale, the Purchaser undertakes to notify COTRAC immediately to enable it to exercise its right to claim the price from the third party purchaser. The authorisation to resell is automatically withdrawn in the event of legal redress or liquidation.
8.3. In the event of seizure or any other intervention by a third party, the Buyer is obliged to notify COTRAC immediately.
8.4. In the event of the opening of receivership or liquidation proceedings, outstanding orders will be automatically cancelled and COTRAC reserves the right to reclaim the Products in stock.
8.5. COTRAC may unilaterally, after sending a formal notice, draw up or have drawn up an inventory of its Products in the possession of the Buyer, who undertakes from the outset to allow free access to its warehouses, shops or other premises for this purpose, ensuring that the identification of COTRAC's Products is always possible.
This clause does not prevent the risk in the Products from passing to the Buyer upon delivery to the Buyer, irrespective of the transfer of ownership. From the moment of delivery, the Buyer shall be deemed to be the custodian and guardian of the Products.
8.6. The transfer to the Buyer of the risks of loss and deterioration of the Products shall be made upon delivery and receipt of the said Products, regardless of the date of the order and payment thereof.
Article 9: GUARANTEE
9.1. The Products delivered by COTRAC are covered by a contractual warranty of one (1) year from the date of delivery, covering any defect not attributable to the Buyer. The Products are also covered by the legal warranty against any hidden defect, resulting from a material, design or manufacturing fault affecting the Products delivered and making them unfit for use.
9.2 This guarantee is limited to the replacement or reimbursement of Products that do not conform or are affected by a defect.
9.3. Any warranty is excluded, in particular in the event of misuse, negligence, impact, dropping, poor storage, lack of supervision or maintenance on the part of the Buyer, including by the end customer, or in the event of transformation of the Product.
It is also excluded in case of intervention on the Product by the Buyer or by a third party without the prior agreement of COTRAC.
9.4. In order to assert its rights, the Buyer must, under penalty of forfeiture of any action relating thereto, inform COTRAC in writing of the existence of the defects within a maximum period of fifteen (15) working days from their discovery.
9.5. COTRAC will replace or repair Products or parts under warranty that are found to be defective. COTRAC specifies that this guarantee does not include any labour costs, which remain the responsibility of the Buyer, unless the hidden defect is proven.
9.6. The replacement of defective Products or parts will not have the effect of extending the duration of the above-mentioned warranty.
9.7. COTRAC shall never be liable for any direct or indirect operating losses or commercial prejudice.
9.8. In any event, the amount of the warranty is limited to the amount of the defective Product at the date of the Buyer's notification. The warranty is limited, pro rata temporis, to the use and degree of wear of the Product.
9.9. By way of derogation, for the "rubber track" Products in the "Ultra reinforced" range, the warranty is extended to a period of two (2) years. The other stipulations remain unchanged.
Article 10: PERSONAL DATA
10.1. The personal data collected from the Buyer is subject to computer processing by COTRAC. They are recorded in its customer file and are essential for processing the order. This information and personal data are also kept for security purposes, in order to comply with legal and regulatory obligations. It will be kept for as long as necessary for the execution of orders and any applicable guarantees.
10.2. The data controller is COTRAC. Access to personal data will be strictly limited to the employees of the data controller, who are authorised to process them by virtue of their functions. Some of the information collected may be communicated to third parties linked to the company by contract for the performance of subcontracted tasks, in particular to the carrier, without the Buyer's authorisation being necessary.
In the context of the performance of their services, third parties have only limited access to the data and are obliged to use them in accordance with the provisions of the applicable legislation on the protection of personal data.
10.3 Apart from the cases set out above, COTRAC will not sell, rent, transfer or give access to the data to third parties without the prior consent of the Buyer, unless it is obliged to do so for a legitimate reason.
If the data is to be transferred outside the EU, the Buyer will be informed and the safeguards taken to secure the data will be specified.
10.4 In accordance with the applicable regulations, the Buyer has a right of access, rectification, deletion and portability of the data concerning him/her, as well as the right to object to the processing for legitimate reasons, which he/she may exercise by contacting the data controller at the following postal or email address: [email protected].
In the event of a complaint, the Buyer may address it to the supervisory authority.
Article 11: RESOLUTION
11.1. COTRAC reserves the right to suspend the execution of the contract in the event of failure to fulfil any obligation when due, provided that it notifies the Buyer of this in good time.
11.2 Apart from the cases referred to in Article 12, COTRAC reserves the right to request, by registered letter with acknowledgement of receipt, the cancellation of the sales contract in the event of the Buyer's failure to comply with its obligations.
This termination shall be deemed to be a formal notice to return the Products delivered at the Buyer's expense.
Article 12: FORCE MAJEURE, FORTUNATE CASE AND CANCELLATION OF THE ORDER
12.1 Force majeure or fortuitous event is understood to mean all cases, in particular total or partial strikes, lock-outs, disturbances, riots, machine breakdowns, epidemics, fires, floods, natural disasters or disasters due to the splitting of the atom and, as a general rule, and for all cases recognised by the jurisprudence emanating from the Court of Cassation, within the meaning of Article 1218 of the Civil Code with regard to force majeure.
12.2. The Purchaser, after signing the purchase order or accepting a quotation, may not cancel the order, except in the event of force majeure or an act of God duly notified to COTRAC within 48 hours of the event occurring.
12.3 COTRAC may, under the same conditions, immediately suspend delivery or cancel the order.
In case of suspension of delivery, COTRAC will inform the Buyer of the foreseeable period of suspension.
The Buyer will have a period of three (3) working days from the receipt of the notification to cancel the order. If the Buyer fails to do so, the new deadline will be considered accepted.
12.4. Similarly, in the event of COTRAC taking control of the company within the meaning of Article L.233-3 of the French Commercial Code, COTRAC reserves the right to notify the Buyer of the cancellation of the order without penalty in the same manner as described in Article 11.
Article 13: INTELLECTUAL PROPERTY
13.1. All photographs visible on the Site are the exclusive property of COTRAC. The Buyer may not use them without the prior and express authorisation of COTRAC.
13.2. The Products delivered to the Buyer, in particular for resale, may be subject to private intellectual property rights that are not transferred in the context of this sale.
All patents, trademarks, designs and models, copyrights, names, etc. remain the exclusive property of COTRAC.
The right of use granted to the Buyer is strictly limited to the promotion, enhancement and sale of the Products, in accordance with the practices of the profession.
Article 14: GENERAL
14.1 Confidentiality: The Parties shall refrain from communicating to anyone, directly or indirectly, all or part of the information of any kind, commercial, industrial, technical, financial, nominative, etc., which will have been communicated to them by the other Party, or of which they may have become aware during the performance of these conditions, and this, until a period of one (1) year after the end of the commercial relationship.
14.2. Each party is expressly prohibited from directly or indirectly soliciting for employment or employing any member of the staff of the other party. This prohibition shall apply throughout the duration of this contract and for one year following its termination, for whatever reason.
In the event of a breach of this prohibition, the defaulting Party shall be obliged to pay immediately to the other Party, as a penalty clause, a lump sum equal to twelve (12) months of the last gross monthly salary of the person solicited or hired, plus all costs of recruiting a replacement.
14.3. These GTC expressly exclude the legal regime of unforeseeability provided for in Article 1195 of the Civil Code for all sales of COTRAC's Products. COTRAC and the Buyer therefore each waive the right to avail themselves of the provisions of Article 1195 of the Civil Code and the unforeseeable circumstances provided for therein, undertaking to assume their obligations even if the contractual balance is upset by circumstances that were unforeseeable at the time of the conclusion of the sale, even if their performance proves excessively onerous, and to bear all the economic and financial consequences thereof.
14.4. The terms and conditions agreed between COTRAC and the Buyer, as well as the order form or the accepted quotation, express the entirety of the obligations of the parties. No other indication or document may create obligations hereunder unless it is the subject of an amendment signed by both parties.
14.5. It is formally agreed between COTRAC and the Buyer that any tolerance or waiver by one of the parties in the application of all or part of the commitments provided for in this contract, whatever the frequency and duration, shall not be considered as a modification of this contract, nor shall it generate any right whatsoever.
Article 15: RESOLUTION OF DISPUTES
In the event of a dispute, the parties shall give preference to an amicable resolution of the dispute, through the implementation of a prior conciliation.
In the absence of an agreement, exclusive jurisdiction is given to the Commercial Court of Lille Métropole, France, ruling in accordance with French law, excluding the Vienna Convention, notwithstanding the introduction of third parties or multiple defendants.
The Commercial Court of Lille Métropole shall also be competent for any opposition to a payment order.
Payment by commercial paper or any other method of payment shall not entail any novation or derogation to this clause.