General Terms and Conditions of Sales – E-Commerce
Article 1. Purpose
1.1. These General Terms and Conditions of E-commerce Sale (hereafter referred to as “T&C“) apply to the online sale of all Products (as defined hereafter) of ENENSYS Technologies (“TestTree”) to any professional customer (the “Customer“), either individually or as a group; referred to as “Parties” or “Party” on the www.test-tree.com website (the “Site“).
1.2. All Customer orders imply unconditional acceptance of the T&C and express renunciation of the Customer’s own general terms and conditions of purchase.
|TestTree reserves the right to modify the T&C at any given moment. This applies to all new orders and those which have been previously placed. TestTree requests that the Customer reads the T&C for each order.|
1.3. If TestTree does not exercise its rights at a given time, in relation to one of the clauses within the T&C, this shall not be interpreted as a waiver of its right to invoke these same clauses at a later date.
Article 2. Products
2.1. In the conditions as outlined when an order is placed, TestTree offers its Customers:
- Digital television test and monitoring equipment (Equipment); individual embedded software solutions and/or software which can be embedded in the Equipment (“Software“). (Equipment and Software are collectively known as “Products“.)
2.2. The sales and delivery of all Products presented on the Website are available for the European Community only. TestTree ensures that the Product descriptions inform the Customer of the necessary product information before the Customer places an order.
2.3. TestTree commits to carefully, conscientiously and reliably processing each order in compliance with the industry rules and practices in force at the time of the order.
Article 3. Customer account
3.1 Before placing a Product order via the Website each Customer must create an account and Customer identification number.
3.2 When placing the first order, the Customer must follow the account creation procedure and provide the Customer’s postal details, email address and create a password. This password is personal and is under the Customer’s responsibility. Customers must immediately inform TestTree of lost or forgotten passwords by changing said password on the relevant webform on the Website.
Article 4. Order procedure
4.1. If a Customer wishes to place an order, the Customer must add the desired Products to the Customer basket by clicking on the “add to cart” button. The Customer can, at any moment, access the Customer cart and make changes by clicking on the corresponding link.
4.2. Once the Customer is ready to confirm the Customer cart, and therefore the order, the Customer must click on the “proceed to checkout” button.
The Customer will then follow the order procedure by providing the required invoicing and delivery information.
4.3. The Customer will receive an information summary at the end of the procedure:
- TestTree identification;
- Ordered Products description;
- Ordered Products price (excl. and incl. VAT);
- Shipping costs;
- Total order price;
- Method of payment;
- Invoicing address;
- Type of delivery;
- Delivery address;
- The present General Terms and Conditions of Sale.
In this way, the Customer can then correct any mistakes which may have occurred when entering the information.
If the order is correct, the Customer must read these General Terms and Conditions and accept them by ticking the box for this purpose or by cancelling the order.
4.4. The Customer then confirms the order by clicking on the “place order” button. This final confirmation counts as a signature and express agreement of both the order and these General Terms and Conditions, pursuant to the law of 13 March 2000.
Article 5. Proof of order and order tracking
5.1. The computerised records stored in TestTree’s computer systems will be considered as proof of communications and orders.
5.2. It is expressly agreed that the data stored in TestTree’s computer systems has probative value with regards to Customer orders.
5.3. In compliance with article 1348 of the French Civil Code, purchase orders and invoices are filed on a reliable and durable support in order to provide an exact and long-lasting copy.
5.4. Once an order has been confirmed, TestTree sends the Customer confirmation by email to the email address provided on the Customer account.
5.5. The Customer can track the Customer order via the Customer account on the Website.
Article 6. Prices – Payment
6.1. The Product prices as stated on the Product descriptions are indicated in euros. They include all taxes, for France and the European Union, and exclude all fees.
6.2. The payment is made according to the conditions as stipulated when the order is placed. All payments must be made in full upon ordering. TestTree also reserves the right to invoice the buyer for bank fees and overdraft charges which the Company may have had to pay on the Customer’s behalf and which do not permit TestTree to recover the full amount due.
6.3. TestTree accepts two payment methods:
- Monetico Payment-secured bank cards,
- Bank transfer.
6.4. TestTree does not have access to the Customer’s bank details and is simply informed that payment has been made by the aforementioned company.
6.5. In the absence of payment confirmation, the order is cancelled and the Customer is informed by email.
Article 7. Availability
7.1. Products are available for sale as they appear on the Website, except for the Monitor product range which is not available for online sales.
7.2. In the event that a Product is unavailable once an order has been placed, TestTree will immediately inform the Customer and will, if needs be, reimburse the Customer as quickly as possible and at the very latest within fourteen (14) days.
Article 8. Right of use
8.1. TestTree holds all intellectual property rights for the Products on sale and the Customer will not infringe said rights.
8.2. Product purchase does not constitute any transfer or restriction of TestTree’s intellectual property rights and/or know-how, whether before or after an order is placed.
8.3. Subject to agreement with the T&C and payment in full by the Customer, TestTree grants the Customer a non-transferable, non-exclusive right of use for all Software (the object of the order) and related documentation, in binary format, for the full duration of current and future moral intellectual property rights as agreed and stipulated by the French Intellectual Property Code and related international conventions. The Customer accepts this right of use.
8.4. Without express and written authorisation from TestTree, the Customer is not permitted to (i) reproduce, represent, modify, translate or adapt, in any form or format, or use the Software and related documentation in any manner and/or (ii) reverse engineer the Products (with the exception of legal requirements to the contrary).
8.5. TestTree may integrate third-party technologies known as “free” technologies. If this is the case, it will be mentioned on the Product description. Information regarding specific Customer rights and obligations will be provided in related Software documentation.
Article 9. Deliveries – Risk transfer
9.1. In the absence of specific conditions at the time when the order is placed, all Products are “Delivered at Place” (Incoterms 2010 – International Chamber of Commerce). Products depart from TestTree’s warehouses, situated at 6 rue de la Carrière, Cesson-Sévigné (35510), France, or from the Company’s European Union established suppliers. Products travel at the risk of TestTree. The latter may, in the event of damage, make a claim to the transporter in compliance with article L.133-4 of the French Code of Commerce.
9.2. It is expressly agreed by the Parties that Products are deemed as delivered (“Delivery Date“) as the case may be, when:
- they are made available to the Customer in the facilities as mentioned in the previous Article. Under these circumstances, TestTree informs the Customer that the Products are available, with fifteen (15) days’ notice. The customer shall have a period of eight (8) days to collect the Product.
- Software is made digitally available to the Customer, where applicable. The Customer receives a notification of all useful information pertaining to his rights which are granted upon Product purchase.
9.3. Any Customer complaint regarding compliance of a delivered Product with the order must be sent to TestTree within five (5) days after the Customer has received the Product. After this time, the Customer is deemed to have irrevocably and unconditionally accepted the delivery.
Article 10. Guarantees
10.1. Subject to applicable law and as of the Product Delivery Date:
- All Equipment, including parts and labour, is guaranteed for a period of twelve (12) months.
The present guarantee covers all Product issues relating to non-conformity and/or hidden defects, to the exclusion of (i) any warranty (express or implied) and, (ii) any worn out parts, integrated products and accessories which have not been manufactured by TestTree. In the latter case, the Customer will make a representation to the Product manufacturer in question.
10.2. In the event of a claim, the Customer will send an email to TestTree at the following address: email@example.com. TestTree will inform the Customer of the correct procedure to follow.
In this case, the Products will be returned to TestTree at the Customer’s expense and responsibility.
TestTree will, at its own discretion, repair or replace the guaranteed Products which TestTree has deemed to be faulty, as quickly as possible. It is only in this case that the Products will be returned to the Customer at TestTree’s expense.
If a Product under guarantee is returned and is deemed to be no longer under guarantee, in compliance with Article 10.3, the necessary services to be supplied by TestTree to the Products in question will be invoiced to the Customer, following a quote which the Customer will have received and accepted prior to any such services being provided.
The present guarantee will not be extended following damaged Product replacement and repair.
10.3. Subject to applicable law, all guarantees are excluded in the event of (i) the Customer’s failure to pay the Price, (ii) abnormal and/or improper use of Product in respect of its designation and/or documentation, (iii) usage which does not comply to the Product laws and regulations in force in the country of use, (iv) combining one or several Products with another product (or Product) which would lead to infringement of the rights of any third-party, (v) a Product/Service infringement or alleged infringement on third-party patent(s), (vi) Customer negligence, and (vii) force majeure.
10.4. In the event that a fault occurs with a Product after the aforementioned period, the Customer will inform TestTree by sending a detailed description of the problem using the method of communication of the Customer’s choice. TestTree may offer the Customer a maintenance service as part of a separate contract.
10.5. In the event of a claim by a third-party for infringement of intellectual property rights caused by a Product, the Customer will, subject to the provisions of Article 8.3: (1) inform TestTree as quickly as possible, (2) accept that TestTree may, as it wishes and at its own expense, either (i) replace or change all or part of the Products, on the condition that the Customer has respected all the Customer commitments and that legal action was taken before a competent court and that TestTree is able to offer a defence as it has the full right to do, and with full Customer collaboration and support; or (ii) gain user rights for the Customer under the same conditions, for a solution offering essentially the same precisions; or (iii) make a unilateral decision to end the right which had been granted and reimburse the Customer the Price excluding tax paid by the Customer for the Product in question if the said third-party claim is made within two (2) years following the Delivery Date.
The same will apply if TestTree deems a similar claim to be possible.
10.6. The provisions of this Article define all TestTree obligations in terms of Product guarantee.
Article 11. Responsibility
11.1. In the event that an order is not processed, or badly processed due to an error on the part of TestTree or one of its subcontractors (except for deliveries), TestTree will repair direct damages.
TestTree will not be held liable for any indirect and/or non-material damage (such as operational loss, customer loss, missed opportunities and data loss, etc.). This is expressly accepted by the Customer.
11.2. It is recalled that the Customer is solely and fully responsible for the use of Products and their interface with the Customer’s software and equipment environment.
The Customer (i) confirms that he holds or has access to the rights necessary for placing the order including the materials that he may provide by whatever means, (Customer Materials), either individually or combined, and/or with one or several TestTree Products; (ii) will be the only person responsible for Customer Materials and guarantees TestTree against any third-party claims in this respect, regardless of the reason. TestTree does not check the free availability of Customer Materials; the Customer expressly accepts this.
11.3. In all cases, it is expressly agreed between Parties that, subject to the laws in force, the total amount of indemnities, damages and charges of any kind payable by TestTree for the Customer’s benefit as a result of a court decision (i.e. a matter on which the Court has given final judgement) will not exceed a global limit, including all litigations, equal to the Price excluding tax received by TestTree for the damaged Product/Service in question.
11.4. Any action, claim or demand by the Customer with respect to TestTree in relation to delivery of a purchase order must be made within a maximum timeframe of one (1) year after the event in question, or deemed to be inadmissible by prescription.
11.5. The present provisions establish the distribution of risk between the Parties. The Price reflects therefore both this distribution and the limitations of the responsibilities described.
Article 12. Subcontracting
12.1. If necessary, TestTree can subcontract part of the order processing to a third party and will inform the Customer of the identity of any such subcontractors.
12.2. TestTree will be fully responsible for the tasks assigned to its subcontractors and of compliance to the subcontracting law n°75-1334, dated 31 December 1975.
Article 13. Force Majeure
13.1. In the event of a force majeure, as defined in article 1218 of the Civil Code, the Parties’ obligations, in terms of the order, will be suspended during the force majeure and will be reapplied once the latter has been declared as finished.
13.2. Failure to execute an order due to a force majeure shall not give rise to any right of recourse. In the case where any such event may prevent TestTree from honouring its commitments, TestTree will inform the Customer as quickly as possible.
13.3. TestTree and/or the Customer will be able to cancel the order, after notification, if the force majeure lasts for longer than sixty (60) days following its initial occurrence. Neither Party will have the right to claim damages or compensation.
13.4. In the event of a force majeure, the Parties agree to meet as soon as possible in order to agree in good faith to the terms and the conditions of the order cancellation.
Article 14. Personal data processing
14.1. Under the provisions of Article 32 of French Law n° 78-17, dated 06 January 1978 (the Data Protection Act), the Customer is informed that personal data may be collected during the order and automatically processed by TestTree.
14.2. Under the provisions of the Data Protection Act, the aforementioned processing is subject to a declaration with the French National Commission for Data Protection (CNIL).
14.3. Articles 38 and thereafter of the Data Protection Act provide for the right to access, correct and oppose personal data. These rights can be exercised by contacting TestTree, 6 rue de la Carrière, CS 37734, Cesson-Sévigné Cedex (35510), France.
Article 15. Termination for misconduct
Without prejudice to the other T&C provisions, all orders will be cancelled thirty (30) days following a payment summons, sent via registered letter with acknowledgement of receipt to the defaulting Party indicating the other Party’s intention to apply the present Article in case of failure to pay. This may be applied without prejudice to any damages that the victim of the misconduct may legally claim.
Article 16. Applicable law – Judicial authorities
16.1. The present T&C are subject to French law. The Parties specifically exclude the application of all United Nation Convention provisions on the International Sales of Goods, dated 11 April 1980.
16.2. If no amicable agreement is reached within thirty (30) days of notification via registered letter with acknowledgement of receipt, regarding the other Party’s misconduct, each Party will be able to submit the dispute to the competent authorities at the Court of Appeal in Rennes (France) only, notwithstanding a plurality of respondents or a guaranteed appeal.