General Terms and Conditions of Sale applicable to professionals as of 01/01/2014
As a reminder, the website www.cmcreation.com is not a commercial website. This site is for viewing only, and enables you to select products and send a price request to our sales department. Therefore, the following general terms and conditions apply to all « standard » orders placed after receiving a sales proposal from our team. Article 1 – GENERAL INFORMATION: CM CREATION, S.A. with a capital of 150,000 euros whose head office is located Parc d’Activité Les Grandes Landes, 18/20 rue Blaise Pascal, F-35580 Guichen, FRANCE, Tel. +33 (0)2 99 57 32 32, Fax +33 (0)2 99 57 35 84, registered at the Trade and Company Register of Rennes under number B 379 485 675 000 50 (Individual VAT identification number: FR 47 379 485 675). (Hereinafter referred to as « CM CREATION »). These general terms and conditions of sale (hereinafter referred to as « GTCS ») apply exclusively to the sale of CM CREATION products to any natural or legal person acting within the framework of their professional or commercial activity (hereinafter referred to as the « Customer »), and are subject to any special conditions of sale confirmed in writing by CM CREATION. Any other documents than these GTCS, namely catalogues, adverts, price lists, websites and notes, are purely informative and non-contractual, and can thus be modified by CM CREATION without prior notice. Placing an order with or accepting an offer from CM CREATION implies acceptance without reserve of the GTCS. The GTCS can be modified at any time without prior notice by CM CREATION, and these modifications will only apply to ulterior orders. Any attendant, employee, partner, family member or any other person acting on behalf of the Customer shall represent the latter and is required to have the authorisation necessary for speaking on behalf of CM CREATION. Article 2 – ORDERS: Orders can be placed by sending an email to the sales department, by fax (+33 (0)2 99 57 35 84) or by post. All orders placed directly with our sales representatives (in trade fairs or at your company) will be confirmed by automatic email sent to the email address entered when creating your Customer account. When you confirm an order by selecting a payment method, the sale is considered concluded (agreement regarding the merchandise and price). Orders placed with CM CREATION by the Customer are definitive as soon as payment has been validated by CM CREATION. Changes to an order (content or volume) placed by a Customer can only be considered if the order has not yet been processed by our IT system, and provided a written request is sent (by email to email@example.com or directly to your usual sales representative) and confirmed by our team. In the event that the Customer places an order with CM CREATION without having paid for previous order(s), or if payment is delayed or outstanding, CM CREATION is entitled to refuse to process and deliver the order, without the Customer being entitled to any form of compensation. The minimum order amount is set at 500 euros excl. VAT. Article 3 – PRICE: The vendor price list in no way constitutes a sale. It can be modified unilaterally, without prior notice. The merchandise is invoiced according to the price agreed when the order was placed, within a period of one month after the offer was published and in accordance with general economic conditions (taxes, exchange rates, etc.) at the time of delivery. After the one-month mark, the Customer is responsible for contacting the sales team to be quoted another offer. For products indexed to a foreign currency: any variation exceeding 2%, to the disadvantage of CM CREATION, of the currency in comparison with the Euro as defined on the day of the offer, will be included in the invoice. All prices are expressed net in euros, exclusive of VAT, other taxes, transport fees and shipping insurance for orders dispatched from the CM CREATION warehouse. All taxes, rights or other services to be paid pursuant to French regulations, or to those of an importing or transit country, are to be covered by the purchaser. The prices offered include all discounts and reductions that CM CREATION is required to grant given its results or services covered by the Customer. A discount of 3% of the amount incl. VAT on the invoice will be granted for payments made within eight days following the issuing of said invoice. Article 4 – PAYMENT: No payments made to CM CREATION can be considered as deposits. Except under special circumstances, expressly detailed in writing or specifically authorised for the Customer after assessment of the situation, payments are to be made either by bank transfer or cheque after the order has been placed. In accordance with article L112-6 of the Monetary and Financial Code, cash payment are only authorised for amounts lower than €1,100. CM CREATION reserves the right to request a bank draft from the Customer if the incurred amounts are too high. In the event that CM CREATION accepts payment by bill of exchange, the Customer must send the bill back accepted and domiciled within eight days; All expenses are to be covered by the Customer, and should the bill not be returned accepted within the stated deadline, payment will be due immediately. For staggered payments, expressly accepted by CM CREATION, the non-payment of one instalment by its due date will entail the immediate payment of the full remaining amount, regardless of previously agreed conditions, even if the instalments were paid via accepted bills of exchange. The same applies in the event the Customer’s business assets are sold, transferred, pledged as collateral or used as capital investment. CM CREATION can delay merchandise delivery until a payment guarantee can be shown. All accepted orders are held until the Customer can prove sufficient financial guarantees and proof that the due amounts will be paid in time. Should the Customer refuse cash payment without having provided a sufficient proof of guarantee, CM CREATION can refuse to process the placed order(s) and deliver the corresponding merchandise; the Customer will not be able to argue unjustified refusal or be granted any kind of compensation. For all new Customers, the first order must be accompanied by a Kbis extract issued less than three months ago in order to open an account. If due amounts are not paid on time, the invoice will rightfully bear interest equal to three (3) times the legal rate, in addition to a fixed penalty of €40, in accordance with legal provisions. The Customer can never – based on a complaint – retain all or part of the amounts due, nor can compensation be granted. When the Customer is late in paying all or part of an instalment, CM CREATION can, based on that fact alone and without prior notice, immediately suspend deliveries to said Customer, without the Customer being entitled to any compensation from CM CREATION. Should any ensuing legal action be taken, CM CREATION is entitled to ask that the Customer reimburse all the costs incurred by the proceedings, all invoices will be increased as a penalty in accordance with article 1229 of the Civil Code, and a fixed penalty equal to 10% of the due amount will be added. 4.1 Payment terms for new customers: The CUSTOMER can request that an outstanding credit account be opened by CM CREATION. CM CREATION will submit a credit insurance application to its usual partner organisation. The CUSTOMER is required to provide a Kbis extract before proceeding with the credit insurance application. If the credit insurance body approves the request, the following payment terms are offered: accepted bill of exchange within 30 days end of month, direct presentation of the bill within 30 days end of month (agreement signed with the customer), advance settlement by cheque or bank transfer within eight days after invoice with a 3% discount applied. If the credit insurance body does not approve the request, the payment terms are as follows: payment following pro-forma invoice with a 3% discount, cash-on-delivery payment (3% discount) with all incurred costs covered by the CUSTOMER (rates depend
on the transporter), or any other payment terms jointly agreed between the Customer and CM CREATION. 4.2 Standard payment terms: CUSTOMERS that benefit from an outstanding credit account granted by CM CREATION must pay by accepted bill of exchange within 45 days end of month (to be returned within eight days), or by direct presentation of the bill within 45 days end of month (agreement signed with the customer). CM CREATION reserves the right to end the outstanding payment account, particularly if the credit insurance is declared void by our partner credit insurance organisation. The CUSTOMER is then required to pay following pro-forma invoice, with four possibilities: cash payment with a 3% discount, cheque cashed within 30 days end of month, cash-on-delivery payment (with a 3% discount – rate depends on the transporter) or any other terms jointly defined by the Customer and CM CREATION. Article 5 – DELIVERY AND TRANSPORT: CM CREATION is responsible for dispatch via a selected transporter, without this modifying any of the following rules. Additional transport fees – calculated according to weight – are to be paid by the Customer. For shipments to mainland France, postage fees are set at 40 euros. Free postage applies to orders exceeding 1,000 euros, for delivery to mainland France. 5.1 Risks and transport: All items are considered as sold, received and accepted in CM CREATION’s premises. Transport risks and hazards (namely loss, deterioration or theft) are to be covered by the Customer. If the delivered merchandise is damaged or missing, the Customer is responsible for notifying the transporter in a reservation form. Any product having not been noted on the transport reservation form and being the subject of a claim sent by registered letter with acknowledgement of receipt within three days after its receipt, pursuant to article L. 133-3 of the Commercial Code, a copy of which was sent to CM CREATION, will be deemed accepted by the Customer. CM CREATION can in no way be held liable for transport mishaps, destruction, damage, loss (except under the abovementioned conditions) or theft, even if the transporter was selected by them. 5.2 Delivery locations: Delivery is completed via direct hand-over of the merchandise to the Customer, by handing the merchandise over to a transporter or by delivery to the address stipulated by the Customer on the purchase order. If no one is present at the time of delivery, the transporter or its representative will present themselves a second time (costs to be covered by the Customer); if the items are not collected from the collection zone, they are generally returned to CM CREATION who reserve the right to dispose of unclaimed items and to postpone to a later date the processing of outstanding orders placed by the Customer for other items. 5.3 Lead times: Lead times are given for information and reference purposes only. They namely depend on supplier and transporter availability. CM CREATION strives to comply with the stated lead times, based on standard logistical deadlines applied within the field. Even if fixed delivery deadlines are accepted in writing, CM CREATION is rightfully exempt from any commitments relating to deadlines in the following cases: technical mishaps, failure on the part of CM CREATION’s suppliers, stock shortage, failure on the part of the transporter, force majeure, unforeseeable circumstances, inaccuracy or lack of information provided by the Customer, delayed delivery requested by the Customer, non-payment or incomplete payment, delays caused by customs. If CM CREATION is unable to provide the ordered product, the Customer will be informed and we will suggest an equivalent product or a credit note equal to the value of the unavailable product. 5.4 Receipt: Upon receiving the merchandise, the Customer must immediately check the state of the products and their compliance with the contract. Without prejudice to the measures to be taken with the transporter, in the event of visible defects or missing products, all claims concerning the delivered products – regardless of their nature – can only be accepted by CM CREATION if they are sent in writing within three days after receiving the products. The Customer is responsible for providing all substantiating documents relating to the observed defects or missing items. In such cases, the Customer can ask for non-compliant items to be replaced and/or for a supplement to compensate for the missing products, at the expense of CM CREATION, without the Customer being entitled to compensation or cancellation of the order. Receipt without reservation of the ordered products covers all apparent defects or missing products. Claims made by the Customer under the conditions described in this article in no way suspend payment of the items by the Customer. Article 6 – CLAIMS AND AFTER-SALES SERVICE: 6.1 Claims: All claims, regardless of their nature, that relate to a defect in the delivered merchandise, inaccurate quantities, a visible fault, a missing item, an incorrect reference with regard to the accepted offer or to the order confirmation sent by CM CREATION, are to be expressed in writing (sent to the technical department or your usual contact person) within three days of receiving the merchandise, without forgetting to appeal against the transporter, as skipping this step would mean that claims cannot be processed. The Customer is responsible for providing all substantiating documents relating to this claim. The Customer must allow CM CREATION to carry out any on-site verifications relating to the claims. 6.2 Return procedure: Returning merchandise requires prior consent from CM CREATION, as well as a return number. CM CREATION will send the Customer a return approval via the most suitable means. Once the return has been approved, the Customer has seven days to return the defective merchandise to CM CREATION. Should these provisions not be complied with, the returned package will be refused. Merchandise must be returned at the Customer’s expense. However, all postage fees incurred following the after-sales service are covered by CM CREATION. If no agreement can be concluded concerning the return of merchandise, any returned items will be the responsibility of the purchaser, at the Customer’s expense, risks and perils, including all transport, storage and handling fees. Article 7 – RETENTION OF TITLE: Ownership transfer for the merchandise delivered to the Customer will only be applicable after full payment has been made or after the accepted bills or other drafts have been cashed as payment of the amount due, even if payment terms have been granted. Any opposing clauses, included in the general terms and conditions of purchase, are dismissed. In the event that the Customer’s business goes into receivership, the Customer undertakes to actively contribute to the inventory of the merchandise contained in stock that may belong to CM CREATION. Failing that, CM CREATION is entitled to have an inventory compiled by a court bailiff, at the Customer’s expense. CM CREATION can ban the Customer from reselling, transforming or incorporating merchandise in the event of late payment. To guarantee payments not yet made and namely the Customer’s balance as shown in CM CREATION’s entries, it is expressly stipulated that rights relating to delivered but unpaid merchandise will be carried over to identical merchandise originating from CM CREATION held in stock by the Customer, without the payments needing to be allocated to a specific sale or delivery. Once the items have been delivered, the Customer is deemed to be the custodian of said items. Article 8 – RESOLUTORY CONDITION: In the event of non-payment and unless we prefer to request full and effective completion of the sale, we reserve the right to terminate the sale following official notice remained unheeded for 48 hours, and to claim back the delivered merchandise – with all return costs being at the purchaser’s expense and all prior pay
ments deemed acquired as per the penalty clause, without prejudice to any interest no that CM CREATION could assert against the Customer. Article 9 – LIABILITY: Subject to the mandatory provisions of the law, CM CREATION’s cumulative liability – regardless of its cause – is limited to the amount paid by the Customer to CM CREATION for the order in question. Indirect and/or intangible or moral prejudices – namely financial or commercial prejudices such as profit loss, order loss, operating loss, loss of data, shortfall, damaged image, interrupted operations, as well as similar prejudices resulting from a claim against CM CREATION submitted by the Customer for damage to a third party – can under no circumstances entitle the Customer to compensation from CM CREATION. In any case, CM CREATION cannot be held liable and shall never be required to pay compensation in the event of force majeure. Article 10 – FURNISHING TAX: For all products included within the scope of application of Article 71 of law no. 2003-1312 of 30/12/03, modified by Article 44 of law no. 2004-1484 of 30/12/04, CM CREATION will add the « Furnishing tax » special tax charge to invoices sent to all EEC customers. Benefits from this tax are granted to the French technical centre for wood and furniture, and to the French technical centre for mechanical industries. Its purpose is to finance the tasks entrusted to these organisations by law no. 48-1228 of 22 July 1948, that determines the legal status of industrial technical centres. This tax represents 0.2% of the amount excl. tax invoiced for goods manufactured by CM CREATION. Article 11 – JURISDICTION AND APPLICABLE LAW CLAUSE: All disputes relating to the creation, execution and termination of the contractual obligations established between the parties that cannot entail an amicable settlement, are subject to the jurisdiction of the Commercial Court of RENNES, whose scope includes CM CREATION’s head office, regardless of the conditions of sale, the place of order or delivery and the payment terms, notwithstanding the introduction of third parties or the plurality of defendants, with the seller being entitled to seize the relevant Court with jurisdiction over the Customer. Assignment of jurisdiction is general and applicable, regardless of whether the case at hand concerns a main claim, an ancillary claim, substantive proceedings or a summary judgement. In addition, should any legal proceedings or any other debt-recovery actions be taken by CM CREATION, the summons and legal fees, as well as all lawyer and additional court fees – including the costs relating to or stemming from the Customer’s non-compliance with the payment or delivery conditions set out for the order in question – are to be covered by the Customer at fault. This contract is governed by French law. The Vienna Convention regarding the international sale of goods is expressly excluded. If CM CREATION does not invoke one of these clauses, this in no way constitutes a waiver of the subsequent enforcement of these same clauses.