General terms and conditions of sale and delivery

Article 1 – Purpose and scope of application
1.1 All orders imply full acceptance of these terms and conditions which shall prevail over any other document of the buyer, including all terms of purchase, unless otherwise agreed in advance and explicitly by the company Lumila (from now on the Company).
1.2 The present terms and conditions apply to all sales of products by the Company unless specifically otherwise pre-agreed in writing between the parties.
Consequently, any customer order implies unconditional acceptance from the latter, of the present general conditions of sale, unless otherwise agreed in writing between the Company and the purchaser.
1.3 Any other document other than the present general conditions of sale, including catalogs, brochures, advertisements, notices, is merely informative, indicative and non-binding.

Article 2 – Intellectual property
All technical documents provided to the customers are the exclusive property of the Company, who is the only holder of the intellectual rights related to the documents, and (these documents) have to be returned to the Company if asked so.
The client is engaged to keep the documents for personal use only and to abstain from any use affecting negatively the Company’s industrial or intellectual property. The client is therefore engaged to not divulge any of the documents to third parties.

Article 3 – Orders
3.1 Definition
As order is considered any order with view to our products and accepted by the Company, accompanied by the relative payment of the deposit provided on the order form.
3.2 Amendments, changes
3.2.1 All orders that have been transmitted to the Company are irrevocable unless written acceptance by the Company.
3.2.2. Any amendments or changes concerning the composition or size of an order that has already been placed will not be taken into account by the Company, unless written request has been sent along with a fax or an e mail notification at latest 8 days after the initial order, and reception has been confirmed by the Company.
In case of amendments or changes, the Company reserves the right to change the agreed implementation deadlines.

Article 4 – Shipping
4.1 Delivery
4.1.1 Delivery dates related to an order are non-binding and only informative, and depend in particular on the availability of the carriers and the arrival of the order.
The Company shall not be in default of delivery in case of a delay attributable to factors out of its control such as strikes, frost, fire, storm, flood, epidemic, supply difficulties (without the list being exhaustive).
4.1.2 Delays in relation to the indicative delivery date initially estimated do not justify cancellations of the order placed by the client and recorded by the Company.
4.2 Risks
Deliveries shall be made EXW (Lumila, 2 rue Maryse Bastié, 93600 Aulnay Sous-Bois, France) ICC Incoterms 2010. Other amendments have to be mutually agreed upon in written form and prior to the transportation.
4.3 Transport
The Company shall not be in default of delivery in case of missing or damaged products. In this case, all necessary claims are to be resolved with the carrier.
All products that haven’t been subject to objections communicated to the carrier and the Company with recommended letter within 3 days of reception shall be considered as accepted by the client according to the article L. 133-3 of the Commercial Code.
4.4 Acceptance of delivery
4.4.1 Without prejudice to be taken by the client vis-à-vis the carrier as described in the section 4.3, in case of missing or damaged products any claim of any nature on delivered products will be accepted only in case of a recommended letter within 3 days as in the section 4.3.
4.4.2 It is up to the client to provide any justifications as to the reality of the missing or damaged products claim.
4.4.3 No products can be returned by the client if not so explicitly agreed in advance and in written with the Company, either by fax or by email. Return costs are to be undertaken by the Company only in the event of missing or damaged products that has been verified by the latter or by a representative. The only carrier authorized to return the products to the Company is the one attributed by the latter.
4.4.4 If there is indeed missing or damaged products verified by the Company or a representative, the client has the right to a replacement of the non-compliant and/or missing product(s) at the expense of the Company, without the client being able to claim any compensation or order cancellation.
4.4.5 Reception of products ordered by the client without objection covers any missing or damaged products.
Any objection will be taken into account as long as it has been reported as in the section 4.4.1.
4.4.6 A claim made by a client under the present terms and conditions does not suspend the payment obligation for the respective products.
4.4.7 The Company can under no circumstances be held liable for any occurrences during transport such as damages, loss, theft, etc. even if it has chosen the carrier.
4.5 Retention of deliveries
The Company reserves the right to suspend any ongoing and/or future deliveries in the event of unpaid invoice that has expired and that has no effect within 48 hours.
4.6 Downpayment by cash
All orders can be paid in cash provided that the client presents adequate financial collateral and can settle the amounts when due, abiding by the applicable law.
The Company can make the acceptance or the fulfillment of an order conditional on a downpayment (in cash) or on supplying collateral in the interest of the latter if:

  • It has reasons to anticipate failure to effect payment by the order date or after the order date
  • The collateral of the client is different in the date of the order fulfillment than that in the date of the order acceptance

The Company reserves the right to require the client’s account records, including income statements or any other documents allowing to assess the client’s creditworthiness.
The Company reserves the right to refuse to honor the order(s) and deliver the respective product(s) without the client being:

  • Entitled to any compensation whatsoever
  • Able to invoke unjustified selling refusal

if the latter fails to pay and does not provide any collateral.
4.7 Refusal to order
The Company reserves the right to refuse to honor the order(s) and deliver the respective product(s) without the client being:

  • Entitled to any compensation whatsoever
  • Able to invoke unjustified selling refusal

if the latter proceeds to an order without having paid for the previous order(s).

Article 5 – Prices
5.1 Prices
5.1 Current prices may be revised at any time, following prior information of our clients. All price revisions are to be automatically applied to the price plan from the date of the revision.
5.2 Our prices are fixed as in the price plan at the date of order placements and are always exclusive of tax.
5.3 Prices are calculated as net, without discount and payable at the date of order (unless otherwise explicitly stated by the Company).
5.4 Unless otherwise agreed, delivery delays do not imply any cancellation or amendment to the contract, nor any damages or interests.
The Company is not legally bound by penal clauses as in the clients’ commercial terms and conditions.
5.5 All delivery and payment dates set out in an order are accepted and binding for the Company only provided that:

  • The client respects the payment terms and any terms relative to advance payments
  • The client provides in due time all technical specifications
  • The client shows no delay in provision of studies or preparatory work
  • There are no force majeure causes
  • There are no social, political, economic or technical events impending the progress of the manufacturing factories or our component, energy or raw material provisions.

5.6 Unless otherwise agreed, all packaging is to be determined and prepared by the Company and is charged in addition to the prices as communicated in the price plans.

Article 6 – Payment terms
6.1 Payment
Our invoices are payable on the due dates contained therein.
Only the actual receipt of bills or CSF will be considered worth full payment within the meaning of these terms and conditions.
6.2 Non-payment
6.2.1 Any amount exclusive of tax unpaid by due dates will result in payment by the customer of penalties set at three times the legal interest rate. These penalties are payable automatically and will be automatically debited from the customer’s account.
6.2.2 In addition, the Company reserves the right to request the matter be solved by a respective court so that to put an end to this breach under daily fine per day of delay.

Article 7 – Retention of title
7.1 The Company shall retain title in the supplied product(s) until full payment by the client for the latter and their accessories, even in case of deferral of payment. Any contrary clause, including clauses in the client’s purchase terms and conditions is void in accordance with the Article L. 624-16 of the Commercial Code.
7.2 De convention expresse, la société LUMILA pourra faire jouer les droits qu’elle détient au titre de la présente clause de réserve de propriété, pour l’une quelconque de ses créances, sur la totalité de ses produits en possession du client, ces derniers étant conventionnellement présumés être ceux impayés, et la société LUMILA pourra les reprendre ou les revendiquer en dédommagement de toutes ses factures impayées, sans préjudice de son droit de résolution des ventes en cours.
7.3 The client reserves the right to resell the product(s) in the context of standard business operations. However, the client may not:

  • Pledge; nor
  • Transfer title to a third party as collateral,

unless the amount of payment has been fully redeemed.
Until full redemption, the resale authorization is automatically withdrawn in case of judicial reorganization or asset liquidation.
7.4 The client reserves the right to transform delivered product(s) in the context of standard business operations.
In case of product transformation, the client is to immediately pay any respective amount that remains to be paid.
7.5 In the event of a default of payment, the Company reserves the right to demand cancellation of sale after formal notice. The Company also reserves the right to compile an inventory of its products that are in the possession of the client, who is engaged to allow free access to its warehouses, shops etc. to this end, ensuring that the identification of the Company’s product(s) is always possible.
7.6 In case of judicial reorganization or asset liquidation, pending orders will be automatically cancelled and the Company reserves the right to claim in stock products.
7.7 The present clause does not prevent the risk related to the product(s) from being transferred to the client upon their delivery.
7.8 Upon delivery, the client is appointed depositary and responsible for the delivered product(s). In case of failure to pay, the Company reserves the right:

  • To cancel the sale after formal notice and
  • To claim any delivered product(s), the cost of return be borne by the client and all payments already executed to be acquired by the Company as penalty clauses,

unless otherwise intended by the Company.

Article 8 – Liability
By default, clients are beneficiary to standard liability. Upon demand and after evaluation of special conditions, an extension to the standard liability can apply.
The Company guarantees all products are free from material defects.
The aforementioned liability is valid for the period specified in the product guarantee. In case of inoperative or defective product(s) within the liability period, the Company is engaged to replace the defective product(s) free of charge, subject to the conditions of limited liability stated below:
8.1 The product(s) need(s) to be checked by the client upon delivery and all claims are to be made under the conditions laid down in Article 4. In case of defects and provided their verification, any defective part is to be replaced by the Company.
Clients must supply proof as to any defect and the Company reserves the right to verify directly or indirectly the validity of the claim.
8.2 All claims relative to defects existing upon delivery and revealed after receiving the product(s) have to be done by the client in written form within 30 days from the day of taking note of the defect.no claims dating more than 30 days from product reception are to be considered.
8.3 It is expressly agreed upon acceptance of the present terms and conditions that after expiry of this period (of 30 days), the client shall not have the right to invoke defects or non-conformity of the product(s), nor use the above as an argument to oppose to debt withdrawal incurred by the Company.
By abiding by the present terms and conditions, the Company responsibility vis-à-vis the client shall not be questioned.
8.4 Defective and deteriorated products due to abnormal storage and/or conservation at the client’s premises, including accidents of any nature, shall not be eligible for liability from the Company.
8.5 Under this liability, the Company shall be in charge of free defective product replacement. The client shall not be entitled to any interests or damages for any reason whatsoever.
8.6 The Company provides liability against defects according to the legislation, case law, and under the following conditions.
The liability applies solely to products that have become regularly a property of the client. It shall not apply to products that have been used under unforeseen performance or use conditions.
The liability applies solely to hidden defects, which are defects in product creation, making it non-suitable for use and undetectable by the client prior to use. Our clients are deemed to have received all technical information on the respective product(s).
This liability shall not apply to any damages or defects due to natural disaster, misuse, abuse, or use contrary to norms, instructions, safety standards, industry standards and/or latest electrical standards applicable in the EU.
The Company shall not be held responsible for power supply conditions, including high voltage surge, high-low voltage or electric current fluctuations associated with a management system set beyond the limits specified for the products or defined by relative norms (example: EN 50160 norm).
This liability shall be void if a person is to perform a repair or change on the product(s) without being duly authorized in writing by the Company. The date of manufacturing must be clearly legible. The Company reserves the right to make the final decision as to the validity of any liability claims.
8.7 The liability is valid for the first year from the date of purchase. The liability automatically ceases by the end of this period.
8.8 An extended liability can be offered on the client’s request and shall be clearly mentioned in the quotation.

Article 9 – Revocation/Withdrawal
In the event of internet sales, the client reserves the right of withdrawal provided for according to the applicable regulations.

Article 10 – Force majeure
The following are held to be force majeure or fortuitous events: events beyond the control of the parties (the Company and the client), which they could not reasonably be expected to foresee and which they could not reasonably prevent or overcome, inasmuch as their occurrence makes fulfillment of the contractual obligations completely impossible.
The following events are, in particular, considered to be force majeure or fortuitous events: strikes by all or part of the Company’s personnel or by its customary carriers, fire, flooding, war, production stoppages due to fortuitous breakdowns, the impossibility of obtaining supplies of raw materials, epidemics, road closures due to thawing snow, road blocks, utility company strikes or supply disruptions.
In such circumstances, the Company shall notify the client in written (by fax or email) within 24 as from the occurrence of the event, and the contract between the Company and the client shall be suspended as a matter of right without compensation, as from the date of occurrence of the event.
Were the event to last longer than 30 days, which would cause complications for the co-contracting parties, the purchase agreement entered into may be cancelled by the Company and the client, without either party being able to claim any damages.
This cancellation shall come into effect on the date of the initial presentation of the registered letter with acknowledgment of receipt announcing the withdrawal from the said purchase agreement.

Article 11 – Jurisdiction
11.1 The selection of service address is set by the Company at its headquarters.
11.1.1 Any dispute regarding the application of the present terms and conditions, their interpretation, their implementation, sales contracts and invoice payments shall be brought before the Commercial Court attributed to the Company headquarters region irrespective of the place of order, delivery, payment or mode of payment, even in the event of appeal or multiple defendants.
Bills of exchange cannot constitute substitution or exception to this jurisdiction clause.
11.1.2 The allocation of jurisdiction is general and applies whether it is a main claim, an interlocutory claim, an action on the merits or an interim.
11.1.3 In addition, in the event of legal action or any debt withdrawal incurred by the Company, legal fees, fees relative to the cost of bailiff and/or lawyer and all relative costs are to be undertaken by the offending customer as well as any fees related or due to non-respect of the conditions of payment or delivery of the order in question.

Article 12 – Disclaimer
The fact that the Company does may not at some point rely to some or one of the present clauses cannot imply future renunciation towards the aforementioned terms and conditions.

Article 13 – Applicable law
Any questions regarding the present terms and conditions that would not be covered by the present contractual provisions shall be governed by the French law to the exclusion of any other law and, in a suppletive basis, by the Vienna Convention on Contracts for the International Sales of Goods.

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