IXBLUE GENERAL TERMS AND CONDITIONS FOR ONLINE SALE OF GOODS AND ACCESSORIES Rev. 14/01/2020 ARTICLE 1 – APPROVAL OF THE GENERAL TERMS AND CONDITIONS OF SALE
1.1. The present General Terms and Conditions of Sale (hereinafter referred to as the “GTCS”) set out the conditions under which iXblue sells goods to the customer (hereinafter referred to as the “Customer”) and are part of the order (hereinafter referred to as the “Order”) placed by Customer to iXblue.
1.2. Any Order placed on this website means fully and irrevocable acceptance of these GTCS by the Customer. Any other particular or deviating conditions are expressly excluded, except if accepted in writing by iXblue.
1.3. By confirming its purchase of the website, the Customer is be deemed to have approved these GTCS unconditionally, and hereby undertakes not to invoke any document against any of the provisions herein.
ARTICLE 2 – ORDER PROCESSING
2.1. The Customer acknowledges that iXblue is entitled to amend or to modify, at any time and without prior notice, any information mentioned on the website (price, nature or quantity of goods, etc…).
2.2. Any Order placed by a Customer shall enter into force after payment by the Customer for said Order has been duly received by iXblue and if the Customer has received from iXblue an email of confirmation or of acknowledgment of receipt and of acceptance of this Order (hereinafter referred to as the “Acknowledgment and Acceptance Notice”). Any Order for which no such Acknowledgment and Acceptance Notice has been issued by iXblue and received by the Customer shall be deemed not accepted by iXblue and shall not be taken into account and treated.
2.3. In case of conflict between the terms available on the website, the terms in the Order or the terms of the Acknowledgment and Acceptance Notice, the later will prevail.
2.4. After receipt by the Customer of the Acknowledgment and Acceptance Notice, no change or modification of the Order is allowed, except with the prior written consent of iXblue. In case a Customer wishes to cancel any Order after the unconditional acceptance of iXblue, the Customer shall be liable to pay to iXblue, by rights, an order cancellation compensation of 30% of the Order value.
ARTICLE 3 – TRANSPORTATION AND SHIPMENT OF THE GOODS
3.1. Delivery shall be made at the address indicated by the Customer in its Order.
3.2. The transportation costs shall be borne by the Customer. These transportation costs shall be calculated and indicated to the Customer before final approval of the Order.
3.3. Transportation shall be arranged by iXblue but risks associated with the goods shall be transferred to the Customer upon shipment.
3.4. Shipment time period for each good shall be stipulated on the website.
3.5. The planned delivery date stipulated in iXblue's email of confirmation or of acknowledgment have indicative value. Delays with respect to the planned delivery date shall not give rise to any damage indemnification, liquidated damages, compensation, price reduction, cancellation of Orders or other liability of iXblue of any kind. Whenever possible, iXblue will inform the Customer as soon as it will appear that the last communicated planned delivery date will not be fulfilled and will provide a new planned delivery date simultaneously.
3.6. iXblue may make partial deliveries after prior notification to the Customer.
ARTICLE 4 – GOODS PROVIDED
4.1. All the information available on the website about the goods are for informative purpose only and iXblue is not contractually bound by this information.
4.2. iXblue reserves the right to withdraw, at any time and without any notice, any good from the list of goods available on the website.
ARTICLE 5 – PRICE AND PAYMENT TERMS
5.1. All prices of the goods are stated before any tax and duty and are based on iXblue prices in Euro. The goods are charged based on these prices and in line with the quantities. Each party bear the taxes, charges or duties said party is liable for under the applicable laws and regulations.
5.2. The Customer shall pay online the Order through bank transfer thanks to the following authorized payment instruments: Visa credit card, American Express credit card or Paypal. A payment is deemed made when the corresponding sum is received on iXblue’s bank account.
5.3. A related invoice shall be sent by email to the Customer within five (5) opening days following date of receipt by the Customer of the Acknowledgment and Acceptance Notice.
5.4. Sanctions and penalties applicable in case of non-payment or late payment In case of delay of payment, iXblue shall be entitled to apply a penalty on the amount of the relevant invoice, calculated on the basis of an interest rate equal to the refinancing rate of the European Central Bank increased by ten (10) percentage points. In addition to this penalty, iXblue shall be entitled to the payment of a lump sum as defined in the article L441-6 of the French Commercial Code. When the payment recovery costs supported effectively are greater than the lump sum compensation, iXblue may also claim, upon justification, an indemnity for the extra costs incurred. In addition, iXblue has the right to suspend execution of the Order upon notice to the Customer. In case of continued non-payment, iXblue is entitled to terminate the Order for default of the Client, without prejudice to any right iXblue ti claim for any damages or start any action for the return of the goods.
ARTICLE 6 – RETENTION OF TITLE
iXblue shall keep full title to the goods sold until the price has been fully paid, including the principal, and any applicable interests, penalties and indemnities. Any failure to pay any amounts payable on due date shall entitle iXblue to claim for the goods. In case of a seizure, or in case of a third-party procedure, before full payment of the due amounts, the Customer shall notify iXblue immediately and shall inform the said third party of the retention of title by iXblue. The above provisions shall not make obstacle to the transfer to the Customer, upon delivery, of all the risks (loss and damage) associated to the goods sold.
ARTICLE 7 – GOODS NON-CONFORMITY
7.1. Without prejudice for any claims against the carrier, all claims against visible defects on or non-conformity of the goods delivered must be notified in writing not later than fifteen (15) calendar days after delivery of the said goods. Beyond this period of time and without any adverse notification, the Customer is considered as having accepted the goods delivered with no reserve.
7.2. For any detected non-conformity, the Customer shall provide iXblue with all evidence in proof.
7.3. Any return of non-conform goods shall be subject to written consent from iXblue. All transportation costs and risks associated with the return of the goods shall be borne by the Customer.
7.4. In case of any apparent defect or non-conformity observed on the goods delivered which is duly ascertained by iXblue, the Customer shall be entitled to have the goods replaced or repaired (at iXblue’s choice), at no extra cost but without any other indemnification.
ARTICLE 8 – INTELLECTUAL PROPERTY
The Customer undertakes to comply with and to respect the integrity of the intellectual property rights associated with the goods. For the purpose of these GTCS, intellectual property rights include, without limitation, rights related to studies, know-how, software, firmware, patents, schemes, models or drawings. Nothing contained in this GTCS shall be construed as granting or conferring any rights or licenses to the Customer, express, implied, or otherwise, to any said intellectual property rights associated with the goods.
ARTICLE 9 – WARRANTY
9.1. The goods sold are guaranteed against operating defects for a period of twelve (12) months following delivery, and during normal use and for the intended purpose of the goods. The contractual warranty is definitely void in the following cases:
• Whenever a good sold is opened, repaired or modified by the Customer or any third party without preliminary written consent from iXblue.
• The installation of the prescribed goods stipulated, if necessary, by the particular conditions, is not carried out by iXblue or by a third party with prior agreement with iXblue;
• The training for the use of the prescribed goods, if necessary, is not carried out by iXblue or by a third party with prior agreement with iXblue;
• The component utilized, or the defective design of the goods is attributable to specific requirements of the Customer without endorsement by iXblue;
• The operating defect is caused by an intervention or as a result of a modification that was performed without iXblue prior consent;
• The operating defect was caused by abnormal use and/or use without complying with the intended function of the goods;
• The failure was caused by normal deterioration (wear and tear) of the product, or by negligence or by improper care on the part of the Customer;
• The defect was caused by force majeure.
9.2. The Customer shall notify in writing any defect covered by the warranty to iXblue, before expiration of the warranty period. Provided that iXblue has given its consent to the warranty claim, the defective good shall be returned, at the Customer’s costs and risks, to iXblue’s location indicated by iXblue, so that iXblue can remedy or have remedied, at its costs, to the defect. Any dismantling or reassembly of the goods shall be at the sole responsibility of the Customer. The remedy of the defect shall not cause the warranty period mentioned in article above to be extended. All costs and risks for the return of the goods to the Customer, to the location stipulated by the Customer, shall be borne by iXblue.
ARTICLE 10 – FORCE MAJEURE
10.1. A Force majeure event shall be understood, pursuant to French law, as an unpredictable, irresistible and beyond a party’s control event.
10.2. Upon occurrence of a Force Majeure event, and within a maximum period of ten (10) calendar days starting from its occurrence, the affected party shall notify the other party by registered letter with return receipt requested and indicate the circumstances, complete with any written evidence required. All the obligations affected by a Force Majeure event shall be suspended.
10.3. Should any Force Majeure event prevent either party to fulfil its contractual obligations for more than thirty (30) calendar days, starting from the abovementioned notification, and without any agreement to pursue the performance of the Order, the parties shall be entitled to terminate the Order or any part thereof in accordance with article 11.2 below.
ARTICLE 11 – TERMINATION
11.1. In case of breach by a party of its contractual obligations, and without this breach being remedied within a period of ten (10) calendar days from the date of a formal notice of the other party requesting to do so, the non-defaulting party shall be entitled to terminate immediately and without any further formality the concerned Order.
11.2. Upon termination, iXblue shall be paid for the goods delivered to the Customer up to the termination date and shall be reimbursed by the Customer for all the direct costs incurred because of the termination.
ARTICLE 12 – LIABILITY
12.1. Whenever related, including presumably, to any breach, act or omission of iXblue, its employees, agents, representatives or subcontractors, arising from or in any way relating to the Order, whether based on the Order, tort (including negligence), strict liability or any other legal theory:
• in no event shall iXblue, its employees, agents, representatives or subcontractors be liable for loss of contract, work interruption, loss of use, loss of data, loss of revenue, profit or anticipated savings, loss of goodwill or any indirect, special, incidental, consequential, exemplary or punitive damages, even if advised of the possibility of such losses or damages ; and, • the maximum aggregate liability of iXblue, including its employees, agents, representatives and subcontractors, shall not exceed the total value of the Order concerned by the claim.
12.2. The aforementioned restrictions on liability are not applicable in cases of damage to third party, personal injury or death or damages resulting from any fraudulent act, wilful misconduct or gross negligence of iXblue or its employees.
ARTICLE 13 – INSURANCES
iXblue and the Customer undertake to maintain all the necessary insurances to cover any risk or damage that could arise within or as result of the performance of the Order.
ARTICLE 14 – APPLICABLE LAW AND SETTLEMENT OF DISPUTES
14.1. The interpretation, performance or non-performance of the Order and any and all matters in dispute between the Customer and iXblue, whether arising from the Order, or arising from alleged extra-contractual facts prior to, during, or subsequent to the Order, shall be governed by the laws of France, and, excluding the 11th April 1980 United Nations convention on international sales of goods.
14.2. Any dispute related to or arising from the validity, construction or execution of the Order, and which cannot be settled by amicable agreement within one (1) month from notification of the said dispute, shall be submitted to the exclusive jurisdiction of the courts of Paris.
ARTICLE 15 – MISCELLANEOUS
15.1. Waiver The failure, in a particular case, of iXblue to exercise or enforce any right, remedy or provision contained in the Order shall not constitute a waiver and shall not prevent iXblue from subsequently exercising any rights.
15.2. Confidentiality Customer shall hold confidential and shall not use, disclose or permit others to use any confidential information identified as such in writing or orally by iXblue or information which the Customer knows or ought to reasonably know is confidential, proprietary or trade secret information of iXblue, including, without limitation, trade secrets embodied in the goods or the related services.
15.3. Assignment The Order shall not be assigned or otherwise transferred by the Customer (by operation of law or otherwise) without the prior written consent of iXblue.
15.4. Severability In the event that any of the terms of the Order, become or are declared to be invalid, the parties shall remain bound by the other provisions and shall meet as soon as possible to remedy to the said invalid clauses in the same vein as when drafting the Order. All the other terms no affected shall remain in full force and effect.
15.5. Entire agreement The Order constitutes the entire agreement between the parties hereto concerning the subject matter of the Order, apart from existing non-disclosure agreements, and there are no understandings, agreements, representations, conditions, warranties, or other terms, express or implied, which are not specified herein. The Order may only be modified through amendment signed by authorized representatives of iXblue and the Customer.
15.6. Personal Data Each Parties undertake to comply with laws and regulation related to personal data protection in particular with the provisions of the European regulation 2016/679 about personal data processing.