Terms and Conditions
ARTICLE 1 - GENERAL - SCOPE OF APPLICATION
1.1. The purpose of these general terms and conditions of sale (hereinafter referred to as GTS) is, on the one hand, to define the conditions under which B&K LUMITEC sells one or more Products to a professional customer (hereinafter referred to as CUSTOMER) who requests them and, on the other hand, to govern all contracts between B&K LUMITEC and the CUSTOMER that arise from these sales.
1.2. Any order from the CUSTOMER and any contract concluded with B&K LUMITEC implies the CUSTOMER's unreserved acceptance of and complete adherence to the GTS, which prevail over any other document (orders, correspondence, etc.) from the CUSTOMER, and, in particular, over any general terms and conditions of the CUSTOMER, unless otherwise agreed in advance and in writing between the parties.
1.3. Any deviation from the GTS must be subject to prior express written acceptance by B&K LUMITEC. Any condition contrary to the GTS invoked by the CUSTOMER is therefore invalid, in the absence of prior written acceptance by B&K LUMITEC, against B&K LUMITEC, regardless of when the latter has been brought to its attention.
1.4. In the event of a discrepancy between the GTS and any special conditions contained in B&K LUMITEC's quotations, it is expressly stipulated that the clauses of the special conditions prevail and take precedence over the GTS clauses.
1.5. The fact that B&K LUMITEC does not at a given time invoke any of the clauses of the GTS cannot be interpreted as a waiver of the right to invoke this clause later.
1.6. If any provision of the GTS is invalid, this does not affect the validity of the other provisions of the GTS, and the disputed clause may be replaced by a clause of equivalent nature and effect.
1.7. The information given in our catalogues, prospectuses, advertisements, price lists, notices and quotations as well as the declarations of our representatives, agents and employees are only informative and not contractual, and are therefore subject to change.
ARTICLE 2 - QUOTATION - ORDER - ACCEPTANCE OF THE ORDER - CONCLUSION OF THE CONTRACT
Only quotations drawn up in writing by B&K LUMITEC are valid as quotations. Our quotations are valid for 1 (one) month from their date. They are free of charge. B&K LUMITEC's services are limited exclusively to the terms and conditions expressly stipulated in its quotations. B&K LUMITEC's quotations constitute an invitation to the CUSTOMER to submit a firm offer in the form of an order with the intention to conclude a contract.
In the event of a quotation from B&K LUMITEC, the CUSTOMER's written acceptance of the quotation constitutes an order. Any order from the CUSTOMER, whether or not preceded by a quotation from B&K LUMITEC, must be made in writing and sent to B&K LUMITEC either electronically or by fax.
An invoicing and order preparation fee of 8 euros (excl. VAT) is applied to all orders below 80 euros (excl. VAT).
Any order from the CUSTOMER transmitted to B&K LUMITEC constitutes a firm offer to contract within the meaning of Article 1114 of the French « Code Civil ». As soon as B&K LUMITEC receives the order transmitted by the CUSTOMER, this order may no longer be modified by the CUSTOMER unless B&K LUMITEC has given its prior, express and written consent. B&K LUMITEC is not obliged to respond to an order or to contest an order received, whether this order refers to one of its quotations or not, if it does not wish to conclude a contract.
2.3. Acceptance of the order - Conclusion of the contract
The contract is only concluded between B&K LUMITEC and the CUSTOMER subject to and after express and written acceptance of the order by B&K LUMITEC - this acceptance taking the form of an order confirmation sent to the CUSTOMER in writing by B&K LUMITEC or, of the invoice issued by B&K LUMITEC in payment of the price of the order. The contract concluded between B&K LUMITEC and the CUSTOMER is concluded and comes into force on the date of issue by B&K LUMITEC of this order confirmation or invoice.
2.4. Contracts concluded by electronic means
When the contract between B&K LUMITEC and the CUSTOMER is concluded electronically, B&K LUMITEC and the CUSTOMER, who are both acting in their capacity as professionals, expressly agree, in application of the option offered to them by Article 1127-3, paragraph 2 of the French « Code Civil », to derogate from the provisions of 1° to 5° of Article 1127-1 of the French « Code Civil », as well as from the provisions of Article 1127-2 of the French « Code Civil » relating to the conclusion of contracts by electronic means.
2.5. Contractual right of withdrawal
Subject to strict compliance with the following conditions, B&K LUMITEC grants its CUSTOMER a conventional withdrawal period allowing them to withdraw their consent to contracts that have been concluded in application of the provisions of Article 2 of the GTS:
- The conventional right of withdrawal only applies to undamaged Products, which have not been used in any way whatsoever and which the CUSTOMER returns, at his own expense and risk, to B&K LUMITEC in their original unopened packaging and accompanied by all their accessories and technical documentation.
- The withdrawal period is 6 (six) weeks from the date of the relevant invoice - this period may be extended to a maximum of 6 (six) months in return for the payment by the CUSTOMER of a penalty to B&K LUMITEC under the conditions set out below.
- B&K must have received the Product(s) concerned before the expiry of the withdrawal period and the Customer must have returned them to B&K by informing the latter in writing of his unequivocal desire to withdraw,
- In the event of withdrawal by the CUSTOMER under the aforementioned conditions and subject to verification by B&K LUMITEC of the good condition of the returned Product(s), B&K LUMITEC will reimburse the CUSTOMER a sum equal to the price (excluding any other costs) paid by the latter for the Product(s) concerned. The refund will be made as soon as possible after B&K LUMITEC has received the returned Products. Notwithstanding the foregoing, where the CUSTOMER exercises his right of withdrawal after a period of 6 (six) weeks from the date of the invoice relating to the Product(s) concerned, the refund is made in the amount of 80 (eighty) % of the aforementioned price. In the latter case, the Parties agree that the remaining 20 (twenty) % of the price is retained by B&K LUMITEC, as a penalty, as compensation for the damage suffered by it due to the withdrawal.
ARTICLE 3 - PRICES
3.1. Unless otherwise agreed in writing between the parties, the prices of the Products are indicated and invoiced in euros and are exclusive of tax, plus VAT at the rate in force at the time of the generating event, excluding packaging costs, transport costs, any customs duties and any cash on delivery tax.
Notwithstanding the foregoing, where the parties agree that the Products ordered are to be delivered by B&K LUMITEC (or any carrier of its choice), the set of products constituting an order equal to or greater than 800 euros (excluding VAT) is delivered carriage paid and including packaging costs, provided that:
- that the Products ordered are in B&K LUMITEC’s stock on the day of the order,
- that the Products ordered do not exceed the standard gauge - this being understood as a gauge equivalent to the dimensions of three Euro pallets (i.e. 3 X (1.2mX0.8mX2m)),
- and that their place of delivery is in metropolitan France.
3.2. Any taxes, duties, customs clearance fees or other charges or duties or other services that would be payable in application of the law in force are payable exclusively by the CUSTOMER.
3.3. Products in stock are supplied at the prices in force on the day the order is issued by the CUSTOMER or, where applicable, at the prices mentioned in B&K LUMITEC’s quotation sent to the CUSTOMER and to which its order refers. As an exception to the above, for Products that are not in stock on the day the order is issued and that have not been the subject of a quotation that is still valid, B&K LUMITEC informs the CUSTOMER in the event that the price that would be applied to its order - taking into account the costs, in particular, of its own supply - would be higher than the aforementioned price, and asks the CUSTOMER to confirm its order at the new price thus communicated.
3.4. B&K LUMITEC reserves the right to modify its prices at any time in accordance with the applicable statutory provisions.
ARTICLE 4 - SETTLEMENT CONDITIONS - PROHIBITION OF PAYMENT BY SET OFF
4.1. All invoices of B&K LUMITEC are payable in full at the place of its registered office and made in cash.
4.2. Unless otherwise agreed in writing and in advance between B&K LUMITEC and the CUSTOMER, payments are made by cheque, bank transfer, bank card or direct debit.
4.3. All invoices from B&K LUMITEC must be paid immediately upon receipt - it being specified that, by express agreement between the Parties, the shipment of the Products or their collection by the CUSTOMER is subject to their full prior payment. As an exception to the above, in the event that the parties have agreed on payment of the order by cheque on delivery of the Products to the CUSTOMER, the relevant B&K LUMITEC invoice must be paid in cash and in full to the carrier.
4.4. If the CUSTOMER pays for the Products ordered before the payment date shown on the invoice, B&K LUMITEC grants a discount of 2 (two) %.
4.5. Any delay in payment render automatically payment due, as from the first day following the date of payment shown on the invoice:
- Late payment penalties calculated by applying a rate equal to three times the French legal interest rate.
- A fixed indemnity for recovery costs, amounting to 40 euros. If the recovery costs incurred exceed the amount of this fixed compensation, B&K LUMITEC is also entitled to request additional compensation, if justified.
4.6. Failure to pay result, after a formal notice by registered letter with acknowledgement of receipt to the CUSTOMER to execute its payment obligation has remained unsuccessful, in the obligation for the CUSTOMER to pay to B&K LUMITEC a penalty for damages equal to 10 (ten) % of the sums due, without prejudice to the right of B&K LUMITEC to obtain compensation for the entirety of the damage caused to it by the non-payment. The payment of this penalty is payable by right at the end of the period of time allowed to the CUSTOMER to perform, as stipulated in the said formal notice.
4.7. In the event of late or non-payment, even partial, of an invoice after the due date by the CUSTOMER, B&K LUMITEC also reserves the right, without the CUSTOMER being able to claim any compensation whatsoever for any reason whatsoever:
- to suspend the performance of its obligations arising from the same contract as the payment obligation not performed by the CUSTOMER,
- and/or to suspend the performance of its obligations arising from all other contracts concluded with the same CUSTOMER, insofar as it is expressly agreed between the parties that, by the effect of their will, the obligations arising from different contracts concluded between them are considered to be interdependent;
- and / or to declare that the term of the contract has expired and consequently that any sums still owed to B&K LUMITEC on any grounds whatsoever are immediately payable; these sums must then be paid to B&K LUMITEC by the CUSTOMER without summons or formality,
- and / or to take advantage of article 14 of the GTS ("rescission as of right") to terminate, in compliance with the provisions of this article 14, the contract concerned by the payment obligation not fulfilled by the CUSTOMER.
4.8. Prohibition of payment by set off
Unless B&K LUMITEC has given its prior, express and written consent, the CUSTOMER is not authorised to proceed with a setting of between the sums that it owes to B&K LUMITEC under their contractual relationship and the sums that the CUSTOMER would consider to be owed to it by B&K LUMITEC on any grounds whatsoever, nor to proceed with any automatic deduction of these sums. Non-payment, in whole or in part, by the CUSTOMER of B&K LUMITEC's invoices in disregard of this prohibition constitutes an unpaid invoice and leads to the application of the provisions of articles 4.5 to 4.7 of the GTS relating to late payment.
Reciprocally, any setting off that B&K LUMITEC intends, for any reason whatsoever, to make between, on the one hand, sums that B&K LUMITEC may owe to the CUSTOMER and, on the other hand, sums that the CUSTOMER owes to B&K LUMITEC under the terms of their contractual relationship, is excluded, unless there is a prior written agreement between B&K LUMITEC and the CUSTOMER.
4.9. Exception of preventive non-performance
In application of Article 1220 of the French « Code Civil », B&K LUMITEC may refuse, as a preventive measure, to perform its obligation, even though it is due, if it is clear that the CUSTOMER will not perform the obligations incumbent upon it on the due date and that the consequences of this non-performance are sufficiently serious for B&K LUMITEC, which is the victim of the default.
By express agreement between the parties, this exception of non-performance as a precautionary measure may also be used by B&K LUMITEC to suspend the performance of its obligations arising from all contracts concluded with this same CUSTOMER, insofar as it is expressly agreed between the parties that, by the effect of their will, the obligations arising from different contracts concluded between them are considered as interdependent.
The suspension of performance takes effect immediately, upon receipt by the allegedly defaulting CUSTOMER of the notification by B&K LUMITEC of its intention to apply the exception of preventive non-performance until the CUSTOMER performs the obligation for which a future default is evident, served by registered letter with acknowledgement of receipt.
ARTICLE 5 - DELIVERY
5.1. The delivery is carried out:
- or by the delivery by B&K LUMITEC (or any carrier of its choice) of the Product(s) ordered to the CUSTOMER (article 3.1 of the GTS being applicable to delivery costs),
- or by making them available at B&K LUMITEC 's premises for collection by the CUSTOMER (or any carrier of his choice) at the CUSTOMER's expense.
It is expressly agreed between B&K LUMITEC and the CUSTOMER that B&K LUMITEC may make deliveries and/or make the Products ordered available for collection, in whole or in part, and that the CUSTOMER may not refuse a delivery or a partial collection.
5.2. The delivery times and/or availability for retirement indicated by B&K LUMITEC are purely indicative and without obligation on the part of B&K LUMITEC; they depend in particular on possible difficulties in the supply of raw materials and transport. In addition, only working days are taken into account for the calculation of lead times.
5.3. In any event, in the event of any delay in the delivery and/or in making the Products available for collection, B&K LUMITEC and the CUSTOMER expressly agree:
(a) such delay does not give rise to any penalty, compensation or damages whatsoever,
(b) that B&K LUMITEC is automatically released from any possible commitment to a deadline that it may have agreed to in writing, and therefore from any possible subsequent liability:
- in the event that the CUSTOMER has not complied with its obligations regarding payment of the agreed price,
- in the event that the CUSTOMER modifies the order before delivery of the Products under the conditions set out in article 2.2 of the GTS,
- in the event of a case of force majeure as defined in Article 12 of the GTS preventing B&K LUMITEC from performing its obligation,
(c) that, in derogation of Article 1223 of the French « Code Civil », the CUSTOMER may not notify B&K LUMITEC of a proportional reduction in the price relating to these Products, nor, if he has already paid this price, ask the judge to reduce it,
(d) that, in derogation of Article 1217 of the French « Code Civil », the CUSTOMER may not:
- neither cause nor claim the cancellation of the contract concerning the Products affected by the delay,
- nor refuse to perform, suspend or modify the performance of its own obligation to pay the price of the Products affected by the delay in accordance with the terms of payment that have been agreed between the parties,
(e) and the CUSTOMER may not withhold any invoices relating to orders other than the one affected by the delay, nor may cancel any other orders placed with B&K LUMITEC.
5.4. Any refusal of delivery or collection by the CUSTOMER obliges the CUSTOMER to pay, as a penalty, to B&K LUMITEC a lump sum compensation equal to 25 (twenty-five) % of the total amount (including tax) of the Products which are the object of the refused delivery or collection, as compensation for the prejudice suffered by B&K LUMITEC as a result of the refusal, without prejudice to the right of B&K LUMITEC to obtain compensation for the entirety of the prejudice that this refusal has caused it.
ARTICLE 6 - TRANSFER OF RISK - CLAIMS
6.1. The Products travel, in all cases (delivery or collection), at the risk of the CUSTOMER, who is responsible, in accordance with the applicable statutory provisions, for checking the conformity and condition of the Products on receipt. Any reservation or complaint by the CUSTOMER must relate to a material observation and general reservations, such as "subject to unpacking", are not accepted. In the event of damage or shortage, the CUSTOMER must notify the corresponding reservations on the carrier's slip. The CUSTOMER must then confirm these reservations by means of a reasoned protest, by notifying the carrier by extrajudicial act or by registered letter with acknowledgement of receipt within three days, not including public holidays, following the day on which the Products were received.
6.2. Without prejudice to the provisions of article 6.1 of the GTS, any complaint by the CUSTOMER relating to a possible apparent defect or a possible non-conformity of the Product or the quantity delivered must be addressed in writing to B&K LUMITEC within eight calendar days of receipt of the Products. In the event of such a complaint, it is the CUSTOMER's responsibility to provide any justification as to the reality of the apparent defects or the alleged non-conformities. The CUSTOMER gives B&K LUMITEC the opportunity to proceed with the observation of these defects or non-conformities and to remedy them. The CUSTOMER refrains from intervening himself or having a third party intervene for this purpose. No claim may be taken into account if the CUSTOMER fails to comply with this time limit or these formalities. In the event of an apparent defect or non-conformity of the Products delivered, duly noted by B&K LUMITEC under the conditions provided for above, the CUSTOMER may only obtain a free replacement or reimbursement of the Products, at B&K LUMITEC's discretion, to the exclusion of any indemnity, damages of any kind or any reduction in price, and this, in derogation of Article 1223 of the French « Code Civil », which the Parties expressly renounce.
ARTICLE 7 - GUARANTEES
7.1 LEGAL GUARANTEE AGAINST HIDDEN DEFECTS
In accordance with the applicable statutory provisions, B&K LUMITEC guarantees, under the conditions provided for in articles 1641 and following of the French « Code Civil », the Products sold against hidden defects which make them unfit for the use for which the CUSTOMER intended them, or which diminish this use to such an extent that the CUSTOMER would not have acquired them or would have given only a lower price for them, if he had known about them.
7.2. COMMERCIAL GUARANTEE
In addition to the legal guarantee against hidden defects, a commercial guarantee is offered by B&K LUMITEC under the following conditions:
Lamps are excluded from the commercial warranty.
The duration of the commercial warranty is one year from the date of the invoice relating to the Product concerned, except for demonstration Products and second-hand Products for which it is three months.
In all cases and without prejudice to the exclusions of guarantees stipulated in article 7.3 of the GTS, the commercial guarantee does not cover parts subject to wear and tear, nor breakdowns and/or damage that are linked to and/or result from poor maintenance, failure to comply with the rules of use or commissioning, as well as any accident, whatever the cause.
The commercial warranty is also excluded if a third party or the CUSTOMER has intervened (e.g. to repair or diagnose) on the Product concerned.
The commercial guarantee is subject to strict compliance with the following conditions of implementation:
- The CUSTOMER who intends to avail himself of the commercial guarantee must imperatively return the Product concerned to B&K LUMITEC’s workshops at his own expense and risk.
- The Product thus returned must be properly packaged, accompanied by a document on the CUSTOMER's letterhead, dated and signed and describing the breakdown or defect that motivates the request to invoke the commercial guarantee,
- The returned Product must also be accompanied by a copy of its invoice.
- The immobilisation of the Product and / or the costs of on-site intervention may not under any circumstances give rise to any compensation to the CUSTOMER.
If the commercial warranty applies, the Product concerned will be repaired free of charge (parts and labour) or, if repair is not possible, exchanged free of charge for a new Product. The commercial guarantee offered by B&K LUMITEC does not, however, entitle the beneficiary of the said guarantee to any damages whatsoever.
7.3. EXCLUSIONS OF GUARANTEES
Notwithstanding the foregoing, any legal warranty for hidden defects, as well as any commercial warranty, are excluded:
- in the event of misuse or use in conditions other than those for which the Products were manufactured, or in the event of use that does not comply with the applicable standards or regulations in force,
- in the event of defects or deterioration or any damage resulting from an accident, whatever the cause, or caused by normal wear and tear, by any external cause and/or accident, by interventions by third parties, by negligence, poor treatment, poor handling, lack of maintenance, use or storage not in accordance with the instructions which may, if applicable, be prescribed by B&K LUMITEC, by failure to comply with the instructions and rules for use and/or assembly and/or commissioning, by failure to comply with the applicable standards or regulations or the rules of the state of the art,
- in the event of force majeure in accordance with the provisions of Article 12 of the GTS.
ARTICLE 8 - LIABILITY FOR DEFECTIVE PRODUCTS
In the context of Articles 1245 to 1245-17 of the French « Code Civil », only the producer's liability may be sought for defective Products. In any event, liability for defective Products is excluded for any damage caused by the Products supplied by B&K LUMITEC to goods that are used by professionals mainly for professional use.
ARTICLE 9 - RETENTION OF TITLE
9.1. B&K LUMITEC RETAINS THE TITLE TO THE PRODUCTS SOLD UNTIL THE FULL PRICE HAS BEEN PAID IN FULL, BOTH IN PRINCIPAL AND ACCESSORIES.
9.2 As long as the Product sold has not yet been paid in full in principal and accessories, the CUSTOMER
refrains from granting any security (or any other form of guarantee) on the said Product, and from carrying out any operation on the said Product that may prejudice B&K LUMITEC's right of ownership.
9.3. The CUSTOMER is authorised to use or resell the purchased Products on the condition that this use or resale is part of the normal operation of its business. In this case, the CUSTOMER is obliged to inform the sub-purchasers in writing that the said Products are subject to a retention of title in favour of B&K LUMITEC.
9.4. The CUSTOMER must oppose by all means any claims that third parties may make on the Products sold by B&K LUMITEC under retention of title and immediately notify B&K LUMITEC by registered letter with acknowledgement of receipt, particularly in the event of seizure, acquisition, confiscation, pledging or any other measure that may jeopardise the rights of B&K LUMITEC.
9.5. In the event of (partial or total) non-payment on the due date, and without prejudice to the right of B&K LUMITEC to take advantage of the provisions of Article 4 of the GTS, B&K LUMITEC may demand, after a formal notice by registered letter with acknowledgement of receipt sent to the CUSTOMER to fulfil its obligations which has remained unsuccessful, the return at the CUSTOMER's expense and risk of the Products to which the non-payment relates - the return may not be refused by the CUSTOMER on the grounds that it has already made a partial payment.
9.6. The above provisions do not prevent the transfer to the CUSTOMER, under the conditions provided for in Article 6.1 of the GTS, of the risks of loss and deterioration of the Products sold under reservation of ownership as well as the damage that they may cause from the date of this transfer. The CUSTOMER takes out insurance to cover the risks arising from the date of transfer of risks as set out in Article 6.1 above, and justifies to B&K LUMITEC, on simple request and at any time, that it has taken out such insurance for the Products sold.
9.7. In accordance with the applicable statutory provisions, in the event of a loss affecting a Product sold to the CUSTOMER and which has not yet been paid in full in principal and accessories, B&K LUMITEC's right of ownership of the said Product is transferred to the insurance indemnity subrogated to the Product.
9.8. All costs arising from the implementation of this retention of title are be paid exclusively by the CUSTOMER.
ARTICLE 10 - FORCED PERFORMANCE IN KIND - PROPORTIONAL REDUCTION OF PRICE
10.1. As an express derogation from the provisions of Article 1222 of the French « Code Civil », in the event of a failure by either of the Parties to fulfil its obligations, the Party suffering the failure may not itself have the obligation performed by a third party, at the expense of the defaulting Party, without the prior written agreement of that Party, nor may it request in court that the defaulting Party advance the sums necessary for such performance.
10.2. By way of express derogation from the provisions of Article 1223 of the French « Code Civil », the CUSTOMER may not, in the event of imperfect performance by B&K LUMITEC of its service, notify B&K LUMITEC of a proportional reduction in the price relating to its service, nor, if it has already paid this price, request the judge to reduce it.
ARTICLE 11 - CONTRACTUAL LIABILITY
11.1. B&K LUMITEC may only be held liable for the damage for which B&K LUMITEC is directly responsible, without any joint or several liability with any third parties who have contributed to the damage.
11.2. Notwithstanding the provisions of article 11.1 of the GTS, B&K LUMITEC is not liable for any damage whatsoever:
- which would result or be caused by abnormal conditions of use or which would not respect the instructions for use, storage, conservation and/or installation of the B&K LUMITEC Products, or which would be caused by a lack of maintenance or by normal wear and tear of the Products,
- or which results from or is caused by modifications made by the CUSTOMER or by a third party to the Products.
11.3. Notwithstanding the provisions of article 11.1 of the GTS, the liability of B&K LUMITEC is also excluded, subject to mandatory legal provisions, in case of indirect damage, in case of consequential damage or incidental damage such as material damage caused to goods other than the Product sold, in case of immaterial damage (whether consequential or non-consequential), such as loss of income, loss of profit, loss of earnings, loss of use, financial cost, loss of order, loss of contract, increase in operating costs, expenses induced by the contractual non-performance such as costs for the purchase of energy (of any kind) and costs for possible dismantling or assembly, any commercial disturbance, and any other commercial or financial prejudice, ... - the CUSTOMER waiving, both in his name and in the name of his insurers, any recourse against B&K LUMITEC and the insurers of B&K LUMITEC.
11.4. When the contract between B&K LUMITEC and the CUSTOMER has been concluded electronically, B&K LUMITEC and the CUSTOMER expressly agree that in the event of non-performance by B&K LUMITEC of any of its contractual obligations, the provisions of Article 15 of Law No. 2004-575 of 21 June 2004 on confidence in the digital economy relating to the contractual liability of the electronic trader do not apply.
11.5. B&K LUMITEC and the CUSTOMER expressly agree that any contractual liability action against B&K LUMITEC apses within one year of the occurrence of the contractual non-performance that gives rise to the liability.
ARTICLE 12 - FORCE MAJEURE
12.1. Any event beyond the control of B&K LUMITEC, which could not be reasonably foreseen at the time of the conclusion of the contract with the CUSTOMER and whose effects cannot be avoided by appropriate measures, is considered as force majeure preventing the performance of its obligation by B&K LUMITEC. In addition, by express agreement between B&K LUMITEC and the CUSTOMER, events such as lock-outs, total or partial strikes, epidemics, pandemics, war, requisitioning, shortage of raw materials, fuel, energy or labour, unavailability of specialised personnel, fire, floods; frost; interruption, reduction or delays in transport, any other cause leading to total or partial unemployment for B&K LUMITEC or its suppliers or subcontractors, legal changes in working hours, accidental stoppage of production, riots, import or export bans, embargoes or requisitions, etc. which would have an influence on the performance by B&K LUMITEC of its obligation - this also applies if these events occur at its subcontractors or suppliers.
12.2. In the event of the occurrence of a case of force majeure as defined in article 12.1. of the GTS preventing B&K LUMITEC from performing its obligation, B&K LUMITEC notifies the CUSTOMER in writing as soon as possible of the occurrence of the event. The contract binding B&K LUMITEC and the CUSTOMER is suspended by right, without compensation, from the date of the occurrence of the event. If the event lasts for more than three months from the date of its occurrence, the contract between B&K LUMITEC and the CUSTOMER may be terminated by the most diligent party, without penalty and without either party being able to claim damages, and the parties are released from their obligations.
ARTICLE 13 - UNFORESEEN CIRCUMSTANCES
13.1. Notwithstanding the provisions of Article 1195 of the French « Code Civil », B&K LUMITEC and the CUSTOMER expressly agree that if a change in circumstances (economic, legal, commercial, monetary, etc.), unforeseeable at the time of the conclusion of the contract binding them, makes the execution of the contract excessively onerous for one or other of the two parties, the said party may ask its co-contractor to renegotiate the contract. This request must take the form of a registered letter with acknowledgement of receipt setting out all the information justifying it. Each party then undertakes to renegotiate the contract in good faith, so as to reach an agreement which, by adjusting the conditions of the initial contract, will not be considered as a novation document.
13.2. If, despite the efforts of the parties, no agreement has been reached within three months of receipt by the other party of the request for renegotiation, either party may freely terminate the contract concerned, without penalty or compensation, by registered letter with acknowledgement of receipt. The termination of the contract will then take effect at the end of a period of three months from the date of receipt of the said letter.
13.3. During the negotiation period, the contract continues on the terms and obligations originally agreed.
ARTICLE 14 – AUTOMATIC RESCISSION OF THE CONTRACT
14.1. In the event that the CUSTOMER fails to comply with its payment obligation referred to in Article 4 of the GTC, the sales contract between the CUSTOMER and B&K LUMITEC to which the aforementioned non-performance relates may be terminated at the discretion of B&K LUMITEC according to the following procedure:
- B&K LUMITEC sends to the CUSTOMER a formal notice to perform, by registered letter with acknowledgement of receipt, this formal notice having to mention B&K LUMITEC's intention to apply the present clause,
- This formal notice remains without effect, in whole or in part,
- EIGHT DAYS after B&K LUMITEC has sent to the CUSTOMER the aforementioned letter of formal notice which has remained without effect, in whole or in part, B&K LUMITEC notifies the CUSTOMER, by a new registered letter with acknowledgement of receipt, of the automatic rescission of the said contract.
14.2. The application by B&K LUMITEC of this automatic rescission clause is without prejudice to the right of B&K LUMITEC to claim damages from the CUSTOMER as compensation for the prejudice caused to it by the latter's non-performance.
14.3. In the event that the sales contract between the CUSTOMER and B&K LUMITEC is terminated under the conditions defined in Article 14 of the GTS:
- on the one hand: the CUSTOMER may not claim any compensation for any reason whatsoever,
- on the other hand: as the services exchanged between the Parties since the conclusion of the contract and until its rescission can only find their usefulness through the complete execution of the contract, they give rise to full restitution. Consequently, the CUSTOMER returns, at his own expense and risk, without delay and at the latest at the first written request of B&K LUMITEC, all Products that had been delivered to him in execution of the cancelled contract.
ARTICLE 15 - APPLICABLE LAW
15.1. The GTS are subject exclusively to French law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of Vienna of 11 April 1980 (hereinafter referred to as CISG).
15.2. All disputes relating to the application or interpretation of the GTS, as well as all disputes relating to the formation, interpretation, execution and termination for any reason whatsoever (including for the brutal rupture of an established commercial relationship) of contracts concluded between B&K LUMITEC and the CUSTOMER, are subject exclusively to French law to the exclusion of the CISG, even in the case of summary proceedings, incidental application, request for provisional or protective measures, appeal for guarantee or multiple defendants.
15.3. Any question relating to the GTS and to the sales they govern, which is not dealt with in the GTS, is governed exclusively by French law, to the exclusion of the CISG.
ARTICLE 16 - JURISDICTION CLAUSE
THE PARTIES EXPRESSLY AGREE THAT THE COMMERCIAL CHAMBER OF THE STRASBOURG JUDICIAL TRIBUNAL IS THE EXCLUSIVELY COMPETENT JURISDICTION to hear all disputes relating to the application or interpretation of the GTSs, as well as all disputes relating to the formation, interpretation, execution and termination for any reason whatsoever (including for the brutal rupture of an established commercial relationship) of the contracts concluded between B&K LUMITEC and the CUSTOMER, and all disputes relating to the liability incurred as a result of an infringement of competition law, even in the event of summary proceedings, incidental application, request for provisional or protective measures, appeal for guarantee or multiple defendants.
ARTICLE 17 - LANGUAGE
These GTS are written in French. In the event that they are translated into one or more languages, only the French text is deemed authentic in the event of a dispute.
(In force from 1 March 2021)