THERMCROSS INTERNATIONAL GENERAL TERMS AND SALES CONDITIONS

 

ACCEPTANCE - ENFORCEABILITY - FORMATION OF THE CONTRACT

The general terms and conditions of sale set out the terms and conditions on which Thermcross International (hereinafter the “Company”) sells its products to any customer (hereinafter the “Customer”).
These General Terms and Conditions of Sale (T&Cs) apply by operation of law to all sales concluded by the Company with a Customer. The Customer approves these general terms and conditions and acknowledges that it is fully familiar with them and, accordingly, waives any right to rely on any conflicting document, including the Customer’s own general terms and conditions of purchase. Unless otherwise agreed between the Company and the Customer, no document other than these general terms and conditions may create any obligations binding on the parties or derogate from these general terms and conditions.
Products may not be delivered to a Customer until the Customer has placed an order, in the form of a purchase order or an accepted quote. Quotes are valid for 30 days after issue. The Contract (hereinafter the “Contract”) is formed when the Company issues an order confirmation or, if a quote was issued, when the quote issued by the Company has been duly signed by the Customer. Once the Contract has been formed, no cancellation or variation will be accepted and the price will be payable.
The Customer agrees that the Company may subsequently make reasonable changes to these general terms and conditions and that their relationship will always be governed by the most recent version of the terms and conditions in force on the date of the order.

ORDERING PROCESS

The www.thermcross.com website may only be used by professionals. Customers may only place an order on the Website if they have a customer account with the Company. If a Customer does not have a customer account with the Company, it may request a new account on www.thermcross.com. Such requests will be processed within 48 hours (business days) of the provision of all of the information required.
Once the request has been approved, an account will be created and the Customer will be able to place an order by following the procedure used on the Website and confirm a detailed summary of the order. The Company will not be contractually bound to the Customer until the order has been definitively approved. The Customer shall provide all of the information requested, as necessary for the fulfilment of the Customer’s order. The Company may not be held liable in the event that the information provided by the Customer proves to be false or incomplete. Products and services are proposed subject to availability and the capacity of the Company. In the event of a stock shortage, the Company undertakes to inform the Customer, using any available means. The Customer’s order may need to be cancelled, in which case the Customer will not be entitled to claim any compensation.

PRICES

Orders will be invoiced using the Company’s price list in force on the date of the order, after deducting any discounts or rebates that may have been agreed.
Unless otherwise agreed, prices are stated in euros, exclusive of tax and for an Ex Works (2010 ICC Incoterms) delivery, with the products being made available for collection at the Company’s premises.
Prices are subject to change, without prior notice. In such a case, the Company shall inform the Customer and the new prices will then apply to any subsequent orders placed by the Customer.

DELIVERY

Delivery times are approximate only. Orders are normally delivered within 48 hours if placed before midday. As the products are delivered EXW, they are carried at the Customer’s own risk, regardless of the method of delivery used.
The risks associated with the products sold by the Company pass when the products are handed over to the carrier or when they leave the Company’s premises. Accordingly, the products are carried at the Customer’s own risk, regardless of the method of carriage used and the payment arrangements agreed for the costs of carriage (paid by the Company or the Customer). Accordingly, the Company disclaims all liability for any type of damage or deterioration affecting the products after they have been handed over to the carrier or shipped by the Company. If any products are lost or damaged in transit, the Customer must exercise all rights of recourse against the carrier in accordance with Article L. 133-3 of the French Commercial Code (Code de Commerce). The Customer undertakes to check the products at the time of delivery and, if any defects or deterioration are detected, to add precise written reservations to the delivery slip, in the driver’s presence, when the delivered goods are unloaded and to confirm those reservations to the carrier by registered post with acknowledgement of receipt within 48 hours of the delivery. Thereafter, no complaint will be processed and the Customer expressly waives any right to bring any claims against the Company in that respect.
By signing the delivery slip, the Customer expressly waives any right to subsequently raise any objection in relation to the products. If “sous réserve de déballage” (received pending inspection) is marked on the receipt, this will have no legal effect and may not be used to support damage reported after the delivery.
The Customer shall take possession of the ordered products at the place and on the date and at the time agreed. To that end, the Customer shall take such steps as are necessary to ensure a safe delivery and, more generally, to ensure that the delivery takes place in optimal conditions and in strict compliance with the relevant instructions given by the Company. The Company disclaims all liability for any accident or incident occurring during the carriage of the goods.
Accordingly, even if the Company bears the cost of carrying the goods to the place stated in the Contract, it does so as the Customer’s agent only. Accordingly, the costs of delivery are passed on to the Customer in full.
Any complaints alleging that the delivered products do not conform to the order must be lodged in a letter sent by registered post with acknowledgement of receipt or delivered by hand against receipt within fifteen (15) days of the delivery of the products. Thereafter, no complaint will be processed, even if the Company is in any manner at fault. The Customer shall pay the price in full.

WARRANTY - LIABILITY

Without prejudice to the statutory warranty set out in Article 1641 of the French Civil Code (Code Civil), the delivered products are covered by a warranty for any manufacturing faults or defects in materials rendering them unfit for use, for a warranty period of 12 months (Isotherm® circulating pumps: 15 months) from the date of delivery for products manufactured by the Company or, for other products sold by the Company, for the warranty period determined by their manufacturer.
Under the warranty, the Customer is entitled to a replacement of defective parts only, excluding labour costs and delivery charges, and is not entitled to any compensation or damages whatsoever. If defective products or parts are replaced, this will not extend the warranty period stated above.
The warranty will not apply to any products that have been misused, improperly serviced or transformed and will not apply in any of the other cases in which the warranty is excluded, as set out in the warranty terms and conditions applicable to the product.
No express or implied warranty extension is granted to the Customer and, accordingly, the Customer is solely liable for any refund or replacement of parts that may be required under the Customer’s statutory warranty of compliance to its own customers.
The Company may not be held liable to the Customer, in any circumstances whatsoever, for any indirect damage or loss, including operating losses, lost customers, commercial damage or damage to its brand image. IN ANY CASE, SAVE IN THE EVENT OF WILFUL WRONGDOING (FAUTE DOLOSIVE), THE COMPANY’S LIABILITY IS LIMITED, IN ALL CIRCUMSTANCES, TO THE AMOUNT PAID BY THE CUSTOMER AS CONSIDERATION FOR ITS OBLIGATIONS.
No claim for damages may succeed if the defective or non-compliant product has been repaired or replaced.
If a Customer considers that the Company has failed to properly perform its contractual obligations, the Customer must send a letter setting out the corresponding reasons by registered post with acknowledgement of receipt within no more than one year of the alleged non-performance.
Failing this, the Customer will be deemed to have waived its right to claim that the Company has failed to properly perform its contractual obligations.
The following items are not covered by any warranty:

  • Bimetallic thermostats,
  • Sensors,
  • Fuel nozzles,
  • The ROI range (excluding complete tap sets),
  • Descalers used in conditions other than those recommended by Thermcross International.

RECOMMENDATIONS

The Company is not deemed to warrant any advice or opinions, technical indications or proposals that it may give or make. The Company is not responsible for assessing any terms of reference or specifications supplied. The Customer must check that the equipment chosen is suitable for the actual conditions in which it will be used.

PRODUCT RETURNS

Save in the event of a mistake by the Company, the products ordered and delivered may not be returned without the Company’s prior written consent. Products that are not included in this printed catalogue and all products sold under a quote cannot be returned or exchanged.
Suitable packaging should be used to return the product. Products are returned at the Customer’s own expense, subject to a warehouse inspection, on receipt, to check that the product has not been damaged and that it is in its original packaging.
If the return has been accepted in writing and in advance by the Company, the Customer must return the product with the product return slip issued by the Company.
One single product return request will be issued per product, unless brand new equipment is to be returned.
The goods must be returned within thirty (30) days of the Company’s consent in their original packaging or in packaging that is identical to that used to ship it, carriage-paid. If the complaint is justified, a credit note will be issued for the goods. The Customer is solely liable for any damage to the goods caused by their storage in abnormal conditions or in conditions that are not suitable for that type of goods.
Equipment return procedure:

  • Contact the sales team to obtain a product return slip.
  • Complete or modify the slip and return it with the equipment.
  • Products are returned subject to a warehouse inspection, on receipt, to check that the product has not been damaged and that it is in its original packaging.
  • The price of the returned product will be reduced by 25% (minimum fee of €15) to cover processing and restocking costs, in cases where the goods can be resold in their current condition. In all other cases, the goods will need to be examined to determine the amount of the additional reduction to be applied, to cover repacking and repair costs.
  • Products that are not included in this catalogue cannot be returned or exchanged.
  • The sender shall bear the cost of returning the products and no freight collect shipments will be accepted.

PAYMENT

The Customer may pay for the goods using one of the following methods:

  • Payment on the due date, in accordance with the special terms and conditions of sale;
  • By credit or debit card (Visa or Eurocard/Mastercard), in which case the products, the contribution to delivery charges and the services are payable when the order is placed.

In order to ensure a high level of security for orders, payments by credit or debit card use the SSL security protocol (Secure Socket Layer: International standard used to transfer encrypted data online) operated by BNP Paribas. Using that protocol, the card number is encrypted between the browser and the Merc@net server. Merc@net is the sole recipient of the card details. The Company has no access to the card details of its customers ordering online.
Invoices must be paid at the registered office, regardless of the method of payment used or the place of delivery.
No discount will be given for early payment. Bills must be returned accepted within forty-eight (48) hours.
If a Customer fails to pay an invoice on time, as stated above, late payment interest will be charged, by operation of law, at the main refinancing rate applied by the ECB plus 10 percentage points along with a fixed debt collection fee of forty (40) euros, which may be increased if the debt collection costs incurred exceed the amount of that fixed fee. Litigation: any legal costs incurred before a court of law are payable by the debtor. If a Customer fails to pay one single invoice on time, the Company will be entitled to claim, after giving formal notice, the immediate payment of any further invoices that may be owed, even if they are not due and payable. An invoice will be treated as paid late:
- for invoices to be paid by a bill of exchange, if the bill is not returned accepted before the due date.
- for invoices to be paid in instalments, if one or more instalments are paid after the date agreed for those payments.

RETENTION OF TITLE

The parties expressly agree that the Company will retain title to the products sold until the price has been paid in full (principal and ancillary amounts), even if credit is granted. Regardless of the method of payment used, the price will not be deemed to have been paid in full until the relevant amount has actually been received. However, risk will pass in accordance with the provisions of the “Delivery” clause.
If a product is sold on to a third party, the Customer undertakes to immediately pay the remaining fraction of the price.
The Customer undertakes not to pledge or use the products as security until it has paid the corresponding price in full. If the Customer places several successive orders or makes partial payments, the products held in stock by the Customer will be deemed to be those that have not been paid in full.

TERMINATION

If a party fails to perform any one of its obligations hereunder, the Contract may be terminated by operation of law, fifteen (15) days after formal notice sent by registered post with acknowledgement of receipt with which the defaulting party fails to comply, in whole or in part, within those fifteen (15) days, containing a declaration by the injured party that it intends to exercise its rights under this clause, without prejudice to any damages that may be claimed for any direct or indirect damage or loss caused to it by that termination.
In particular, the following will be treated as serious breaches: a failure to comply with a payment obligation, any infringement of the Company’s intellectual property rights and, more generally, any underhand behaviour harming the Company.

FORCE MAJEURE

The Company may not be held liable for any non-performance of its contractual obligations resulting, directly or indirectly, from a force majeure event, meaning any unavoidable, unforeseeable event as defined in Article 1218 of the French Civil Code, such as, in particular: any natural disaster, fires or strikes occurring at the Company or its providers or suppliers, any mandatory order issued by the public authorities (import or export bans etc.), supply shortages, faults affecting the Company’s operating equipment, faults or viruses affecting IT equipment or thefts or burglaries at the Company’s premises.
If a force majeure event occurs, the performance of the Contract will be immediately suspended. If such an event occurs, the parties shall endeavour, in good faith, to take all reasonable steps to allow them to continue the performance of the Contract. If a force majeure event lasts for more than sixty (60) days, the Contract may be terminated by either party.

INTELLECTUAL PROPERTY

In general terms, the Contract does not involve any assignment or transfer to the Customer of the intellectual property rights attached to the products. The catalogues constitute databases protected as copyright and as sui generis database rights, which are the exclusive property of the Company, as is hereby expressly acknowledged by the Customer. The Customer shall refrain from infringing the intellectual property rights attached to the Company's databases, in any manner whatsoever, and whether directly or indirectly through third parties with which it is associated, failing which legal proceedings may be issued against the Customer for infringement. In particular, the Customer undertakes not to make any copies of the databases and/or extract all or part of them in any manner whatsoever. The Customer shall procure that its employees and agents comply with this obligation. If the Customer uses the Company's databases, the Customer undertakes to strictly comply with the corresponding terms of use. Likewise, all technical documents handed over to the Customer will remain the exclusive property of the Company and may be protected as intellectual property rights which the Customer undertakes not to infringe. The documents and visuals appearing in the catalogues are provided for illustrative purposes only and are not contractually binding. The trademarks mentioned are the property of their respective owners. They are used for the sole purpose of identifying the products. The Company reserves the right to modify the external appearance of its products at any time, depending on the availability of its supplies.

PERSONAL DATA - COOKIES

Customers are informed and accept that by placing an order and/or creating a customer account on the Website, the Company may store, process and use their personal data, as defined in the French Data Protection Act of 6 January 1978 as amended by the French Act of 7 October 2016, to allow it to process the order. Pursuant to the national and EU rules and regulations in force, Customers have the right to access and request the rectification or erasure of their personal data, the right to restrict and object to the processing of their data and a right to data portability. Customers may exercise their rights by emailing a request to the Company at: export@thermcross.fr. They may also lodge a complaint with a supervisory authority. Lastly, Customers have the right to decide what will happen to their personal data after their death.
Information/data about Customers is processed by the Company and is necessary to allow it to manage orders. It is also retained for safety reasons, to allow the Company to fulfil its statutory and regulatory obligations. It may also be used for direct electronic marketing campaigns implemented by the Company.
The Company undertakes to comply with the terms of processing and/or destination of personal data provided to it by Customers or to which it has access for the purposes of the performance of the Contract. In particular, the Company undertakes not to exploit the personal data collected for the purposes of the performance of the Contract on its own behalf and not to sell and/or lease it to third-party undertakings. However, it may be transferred to third parties solely for the purposes of the performance of the Contract (for example, deliveries).
With Customer consent, the Company collects information about Customers using cookies tracking Customer browsing on the Website. Cookies are stored for up to 13 months and are alphanumeric identifiers transferred to the hard drive of Customers’ computers via their Internet browser. They are used by the Company to recognise the browser and therefore propose more innovative and attractive functions to Customers.
Customers may also modify their cookie settings on their computer to disable cookies. For further information on cookies, please click here .

NO WAIVER

If the Company does not enforce any provision of these general terms and conditions at any given time, this may not be construed, in any manner whatsoever, as a waiver by the Company of its right to subsequently enforce that provision, including any failure to claim a late payment.

EVIDENCE

In the event of a dispute, the parties agree to treat faxes and emails as an original written document constituting conclusive evidence and agree not to dispute them as a valid method of proof, subject to any challenge to their authenticity.

JURISDICTION

ANY DISPUTE THAT MAY ARISE IN RELATION TO ANY OPERATIONS COVERED BY THESE GENERAL TERMS AND CONDITIONS WILL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE COURTS IN LYON, even in the event of an expedited application, an interlocutory application, a third-party claim for indemnity or multiple defendants.
All of the clauses set out in these general terms and conditions and all operations covered by these general terms and conditions are governed by French law.


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