General Terms and Conditions
for Deliveries and Services 01.01.2019
A. General Provisions
1 Scope of Application
1.1 Factual Scope : the following terms (“terms and conditions”) apply to all and any offers, deliveries, services (including the preparation or assignment of corporeal or incorporeal deeds or goods of any kind), assembly, repair and service works, which POOLOOP, 80 rue Borde 13008 Marseille, France, RCS Marseille N° SIRET 83917057800018 (hereinafter referred to as “POOLOOP”) offers to their customers, as far as no other arrangements have been agreed upon between POOLOOP and the respective customer, including these conditions (“contract”).
1.2 Personnel scope of application : These terms and conditions only apply if the customer is a professional (“contractor”). These terms do not apply to consumers.
1.3 Deviating Arrangements : Deviations from these terms and conditions require written consent by POOLOOP. Deviating conditions by the customer are contradicted as far as POOLOOP have not given express consent in written form. Such consent or acceptance only apply to the individual case, and not to former or future deliveries or services.
2. Contract formation
2.1 Realization of contract : Any order shall be binding upon the purchase on behalf of whom it is signed, POOLOOP not being required to check the capacity and authority of the signatory of the order form. Orders shall become binding and definitive only upon confirmation by POOLOOP. POOLOOP shall send the purchaser an acknowledgement of receipt of the order which will conclude the contract. POOLOOP reserves a period of time of 2 (two) weeks for issuance of a order confirmation. POOLOOP shall refuse to confirm an order, particularly in the following cases: (i) if a previous invoice made by the purchaser is still unpaid, (ii) if the purchaser breached its contractual obligations within the framework of a previous order or (iii) if the order is unusual, for instance in terms of quantity or delivery time. Any major change request made to the initial order form shall result in the issuance of an amending order and in the definition of a new price.
2.2 Customer’s auditing duty : Eventual discernible inaccuracies in POOLOOP’s order confirmations concerning the customer’s tender or order document specifications must be reported by the customer in written form immediately, at the latest within 3 (three) working days upon receipt of the order confirmation.
3. Contractual basis
3.1 Contractual basis : As far as no deviating arrangements have been agreed upon between POOLOOP and the customer, and as far as nothing else arises from these conditions, the following are the contractual basis, listed in succession and ranking : written order and written order confirmation, respectively a contractual document concerning the order ; Specification of services ; Order checklist by POOLOOP with relevant data and on site requirements.
3.2 Non-binding nature of other information : Mere information and/or advice by POOLOOP are not part of the owed scope of services, which means they are non-binding and do not justify liability, unless the specification of services suggests otherwise or the parties have agreed otherwise in written form.
4. Documents, Intellectual Property
4.1 Protection of documents : technical documents, tenders, drawings, plans and calculations which are submitted to the customer by POOLOOP within the scope of order negotiations may not be used for any other purpose, duplicated or made available to third party entities. Property rights, intellectual property rights and other rights to such documents are reserved to POOLOOP. In the case that a customer uses such documents without being entitled to do so by POOLOOP, POOLOOP has the right to claim immediate return of these. All other further claims by POOLOOP, especially those to omission and indemnity, remain reserved.
4.2 Reservation of Property Rights : The customers right to the usage of copyrighted goods, especially inventions, technical improvement suggestions and/or other output related to the product – irrelevant whether these are patented, design patented, utility patented, branded or otherwise copyrighted or whether these display a trade secret – (collectively referred to as intellectual property), is limited to the customer’s contractual usage of the contractual deliveries and services and is solely determined by the contract. All other rights to intellectual property of POOLOOP remain reserved.
5. Plans / Shop Drawings
5.1 Performance pre-requisits for plans / shop drawings: plans and calculations based on stated measurements are only part of POOLOOP’s owed services if POOLOOP took site measurements itself and POOLOOP was in a position to take measurement of all site dimensions. In all other cases, plans / shop drawings and calculations based on stated measurements are not part of the contractual scope of services of POOLOOP and POOLOOP does not assume liability for the accuracy and completeness of these irrelevant as to who took these. In this case POOLOOP does not assume liability for eventual shortcomings of deliveries and/or services that are based upon incompletion of plans / shop drawings and/or calculations based upon specifications.
5.2 Site measuring : The preparation of a site measuring by POOLOOP is only part of the contractual scope of services if the parties have agreed so in written form.
5.3 Customer’s auditing duty : It is the customers duty to immediately verify any site measurements taken by or calculations issued by POOLOOP(especially for any obviously deviating measurements that do not meet circumstances on site). No claims or rights from faults which are based on mistakes in plans / shop drawings and/or calculations by POOLOOP, which could have been identified upon proper completion of the customer’s duties set forth in foregoing sentence 1, can arise.
6. Delivery Dates and Lead Times
6.1 Liability of Dates and Terms : Delivery dates, (i.e). a particularly set time of delivery is/are only binding if these have been consent to “obligatory” in written form by POOLOOP.
6.2 Delivery and Service Prerequisites : A liability by POOLOOP due to transgression of committed delivery dates and times, respectively, is excluded if the transgression occurred due the the customers insufficient full-filment of their respective duties encompassing the requirements set forth by POOLOOP in order to enable POOLOOP to complete deliveries. It is the customer’s duty to confirm the prerequisites for deliveries and services set forth (“Fundamentals and Prerequisites for Installation” as per annexes 1 and 2) in writing to POOLOOP.
7. Prices, Adjustment of Compensation, Transfer of Risk upon Dispatch of Goods
7.1 Pricing : As far as no other arrangements have been made, the prices quoted by POOLOOP are to be understood “Ex Works“ – (Incoterms 2010), excluding packing, plus lawful VAT, stated separately on the day of issuance of the respective invoice. POOLOOP is in charge of dispatch, packing and insurance at the customer’s cost, as far as nothing else is agreed upon. The purchaser acknowledges that proper execution of the orders depends on its active collaboration. In case of excessive delay in the performance of the order due to the lack of collaboration of the purchaser, the latter acknowledges and accepts that the price of the order may be reassessed. POOLOOP and the purchaser shall meet to define additional remuneration by mutual agreement
8. Terms of Payment and Payment Delay, Offsetting
8.1 Terms of Payment : POOLOOP’s invoices shall be payable by the purchaser within thirty (30) days of the date of issuance. In the event of late payment, the purchaser may be automatically charged with an interest at the rate of three (3) times the French legal interest rate in effect on the date the invoice is issued, and so from the first day of delay. POOLOOP shall also claim the amount of 40 € as fixed compensation for recovery costs. If recovery costs actually incurred exceed the amount of this fixed compensation, POOLOOP shall claim a supplementary compensation, upon presentation of supporting documentation. Besides, in case of nonpayment at due date, the purchaser shall pay a penalty equal to 20 % of the unpaid amount, without prejudice to the damages that could be awarded by a Court. This penalty shall be due automatically without any formal notice, for the sole reason of non-respect of the due date by the purchaser.
9. Claim for security through the customer
POOLOOP is entitled to claims for security even if the agreed and not yet preformed compensation incl. Pertaining secondary claims, that are assessed at 10% of the compensation amount that is to be secured, are not services in the sense of the French Civil Code for the building, renovation, removal or redecoration of a building, of an outdoor facility or parts of it. The regulations French Civil Code apply respectively. In case POOLOOP is to perform services in the sense French Civil Code for the building, renovation, removal or redecoration of a building, an outdoor facility or parts of it, POOLOOP has the right to claim securities as per the regulations of French Civil Code.
10. Retention of Title
10.1 Secured claims : Until full payment (drafts must have been accepted and redeemed) of all open claims in their entirety by POOLOOP towards the customer, regardless of their legal cause (referred to as “secured claim” hereinafter), have been effected, the goods (“goods subject to retention of title”) remain the property of POOLOOP, as far as they do not become an integral part of a parcel of land. Especially also the claim to agreed compensation as well as all and any claims that stand in connection with the deliveries and services by POOLOOP, as well as all claims concerning installation, servicing and repair works, are part of these secured claims. Upon open account, the account balance claim by POOLOOP represents the secured claim.
10.2 Risk of Loss : The risks of loss, wear and tear or damaging of the goods subject to retention of title lies with the customer. The customer is obliged to insure the goods subject to retention of title at their reinstatement value under comprehensive cover and liability protection, namely with the stipulation that the rights from said insurance lie with POOLOOP. All claims by the customer arising from the insurance contract are hereby assigned to POOLOOP. Insurance payments are to be utilised in full for the reconditioning of the goods subject to retention of title. In case of total loss, the insurance payments are to be utilised to achieve clearance of the secured claims. Surplus appertains to the customer.
10.3 Regulations, impairments : The goods subject to retention of title are to be treated with care. Any relocation, any impairment of the goods subject to retention of title, especially damages, as well as any interference by third parties with the goods subject to retention of title and/or the ceded claims (collectively referred to as “secured goods”), in particular seizure, are to be reported to POOLOOP in writing immediately. The customer is obliged to carry the cost of all measurements undertaken in order to achieve indemnification of the secured goods from the rights of third parties. Dispositions of the secured goods, especially pledges and chattel mortgages, are out of order.
10.4 Release of secured goods : As far as the feasible value of the entire secured goods (which are assessed at 2/3 of their nominal value, insofar as no party proves a deviating feasible value) exceeds 110% of the entire secured claims (the “excess security limit”), POOLOOP is obliged to devolve the portion exceeding the excess security limit to the customer upon request.
11. Completion of construction services and acceptance
11.1 Acceptance modalities : Acceptance of construction services by POOLOOP is effected upon completion of the contractual item on site, that is at the location of install which the parties have agreed for the contractual item to be installed at, by means of the customer’s signature or their representative, respectively. The installers present at the place of full-filment of the contractual item are to be regarded as authorized representatives of POOLOOP, entitled to carry out acceptance together with the customer. If the parties agreed otherwise, than stipulated in foregoing sentence 1, namely a particular other acceptance date, then acceptance is carried out at such date.
11.2 Notional acceptance : Any period for acceptance stated by POOLOOP upon completion of the construction services is qualifies as just if this period is at least 6 (six) working days long. If the customer does not refuse acceptance within this period and with at least one flaw, the service by POOLOOP is considered to be accepted.
12. Right to storage in case of install delays caused by customer
13. Claims from faults in construction services, statute of limitations
13.1 Liability for defects : The regulations stipulated in the French code of construction and French Civil Code apply for the liability for defects of construction services and their solution.
13.2 Statute of limitations of claims for defects : For the limitation of claims concerning construction services, the regulations apply, whereas services concerning GlassFloors are limited to 10 (ten) years beginning on the date of acceptance. For claims concerning defects in LED and their respective electric components, a limitation of 2 (two) years applies. For claims concerning equipment and amenities for the production of our entire product and service, which POOLOOP obtains from third party entities, meaning electronics, electric appliances and ventilation units, the limitation of 1 (one) year applies, whereas POOLOOP assigns potential claims for defects of these appliances and units by other manufacturers to the customer.
14. Implementary regulations and prerequisites for installation
15. Applicable Law, Place of Full-filment, Place of Jurisdiction and AL
15.1 Applicable Law : The contractual relation between POOLOOP and the customer underlies the jurisdiction of French Law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
15.2 Place of Full-filment : Place of full-filment for deliveries and services by POOLOOP which are no construction services in the sense of French Code of Construction, is POOLOOP’s place of business.
15.3 Place of Jurisdiction : For all disputes arising from or in relation with the contract or these terms and conditions, the courts in Marseille, France, are solely cognizant.
15.4 Written Form : All declarations and notes to be made as per this contract or these terms and conditions are only valid in written form, whereas transmission in a textual form (e.g. fax or e-mail) is also deemed as valid. Textual form also observes the proprieties in such cases where as per these terms and conditions written form is required. Oral declarations of POOLOOP employees or accredited Representative are only obligatory upon written confirmation by POOLOOP. 15.5 Partial Nullity : Should one or more regulations of the contract or of these terms and conditions be declared null and void or unfeasible, then it is irrevocably presumed that the effectiveness of the remaining regulations remain intact.
B. Further Terms
16. Material Defects and Defects of Title
16.1 Fundamentals : POOLOOP reserves the right to make customary alterations concerning setup and design of the deliverables. In case of potential material defects or defects of title of deliverables, the customers rights regulate themselves exclusively as per the legal provisions after stipulation of these terms concerning material defects and defects of title warranties by POOLOOP. Guarantees of quality require an explicit declaration by POOLOOP in any case. An independent manufacturer’s warranty which is added to the goods does not pose a guarantee of quality in case of doubt.
16.2 Limitations : The customers rights in case of material defects or defects in title are excluded in as far as the deliverables are only negligibly deviating from the stated quality features and/or the aptitude of the deliverables for the owed use is only negligibly impaired. POOLOOP reserves the right to choose the means of supplementary performance(s). POOLOOP is not obliged to supplementary performance(s) as long as the customer is behind with full-filment of a contractual obligation. If POOLOOP fails to make use of his right of choice within a reasonable period of time set by the customer, this right is transferred to the customer. POOLOOP reserves the right to 2 (two) supplementary performances – even in case of service contracts – unless this is infeasible for the customer in individual cases. The cost for supplementary performances is only carried by POOLOOP on the basis of transport from and to the original delivery address. If POOLOOP provides supplementary performances the customer is obliged to returning faulty deliverables and must compensate benefits of use.
16.3 Duty to Inspection and Objection : The customer is obliged to inspect deliverables promptly upon arrival and to notify /object on any deviations, especially faults, transport damages, quantity deviations or delivery of other than the ordered goods (collectively referred to as “delivery deviations” hereinafter). In case of transport damages, a damage protocol must be issued. This damage protocol is then to be sent to POOLOOP promptly. If the customer does not object obvious delivery deviations gathered upon just inspection of the deliverables upon delivery, these are considered as approved as delivered. The objection is expressly no longer regarded as promptly if it is presented later than 14 (forteen) days upon delivery. Latent defects are to be reported to POOLOOP in written form immediately upon their discovery.
16.4 Exclusion of Rights : The customers rights concerning quality defects and defects of title are excluded as far as the defect is traceable to the customer applying the deliverables (a) for another cause than the one it is intended for as per the contracts regulations or against the legal terms or the guidelines issued by the manufacturer or treats the deliverables inappropriately, faultily or negligently or (b) without written consent by POOLOOP (i.) allows staff to install, service, edit or alter the deliverables who are no trained installers delegated by POOLOOP, or (ii.) uses it together with other materials and/or accessories that are have not been expressly declared as apt for such usage by their manufacturer. The customer is obliged to indemnify POOLOOP of all and any claims of third parties that have arisen from such misconduct, as well as compensate POOLOOP for any hereof arisen damages. The customers rights concerning defects of title are furthermore excluded as far as they relate to rights that only apply outside the country, into which the deliverables are shipped, outside of the European Economic Union and outside of Switzerland and as far as the customer does not cede the defence to its full extent to POOLOOP as well as awards all necessary credentials to POOLOOP. Moreover the customer cannot claim liability for defects claims if he is aware of the flaw at the time of contract conclusion or grossly negligently quality concerning the flaw.
16.5 Manufacturer’s Warranty : In so far as the manufacturer of the deliverables issues a manufacturer’s warranty (the “warranty”), this warranty solely acts on the warranty terms by the manufacturer (the “warranty terms”) which have been handed to the customer together with the offer on the deliverables or upon request. The terms of these terms and conditions concerning material defects and defects of title claims by POOLOOP remain untouched by the warranty. POOLOOP is not held accountable for the full-filment of eventual warranty claims by the customer towards the manufacturer.
16.6 Statute of Limitations : customers claims concerning flaws of deliverables expire by limitation (a) after two years for newly produced deliverables, and (b) after six months for used deliverables. Upon expiry of the agreed limitation period, the legal right of withdrawal also expires. The legal limitation period however remains intact when claims are made concerning deliverables which were used according to their customary usage in construction and their flaws have caused defects, as well as when these defects have been fraudulently concealed, intently, grossly negligently or have caused indebted injury of life, limb or health of a person or a guarantee of quality as well as for legal recourse. The legal regulations apply to the period of the beginning of the limitation period. In case POOLOOP undertakes supplementary performance(s) to deliverables, this does not lead to a new start of the limitation period of the customers rights for flaws concerning the corrected deliverables (including potential replacement or spare parts) or the subsequently delivered objects. These rights rather expire unscathed of the supplementary performance(s) with the legal, remaining expiration period of the corrected or replaced deliverables, provided that the limitation period ends no sooner than three (3) months after completion of the supplementary performance(s) or the refusal of further attempts to provide supplementary performance(s).
17.Limitation of Liability
17.1 Limitations of Liability : A contractual or non-contractual liability for compensation on behalf of POOLOOP only applies if the damage is the result of gross negligence or malice. For intended injury to life, limb or health of a person, POOLOOP is held responsible also upon ordinary negligence. Furthermore POOLOOP is also held responsible for ordinary breach of a substantial contractual obligation, however limited to the amount of property losses, which POOLOOP should have foreseen as potential consequence of contract breach upon contract formation. Substantial contract obligations are such obligations, whose full-filment enable the duly execution of the contract as well as attainment of the contract cause in the first place and to which adherence the customer is entitled to rely on consistently in terms of content and purpose of the contract. POOLOOP’s liability in terms of material defects and defects of title in relation with deliverables that were provided free of charge such as e.g. demonstration products, is limited to malice, gross neglect and fraudulently concealed defects. Stipulated limitations of liability in the contract or in these terms and conditions also apply to potential liabilities of POOLOOP’s bodies, employees or subcontractors.
17.2 Product Liability : Potential product liability claims remain entirely untouched by the foregoing limitations.
17.3 Statute of Limitations : Legal statutes of liability apply to damage claims, unless the claims are based on a flaw. Then the statutes of liability set forth in paragraph 16.6 apply.
17.4 Onus of Proo f: An amendment to the onus of proof is not established by the regulations set forth in this paragraph 17.
18. Delays in Delivery
18.1 Self-supply : Correct and timely self-supply rights remain reserved. 18.2 Partial Deliveries : partial deliveries are admissable unless the partial full-filment of the contract is infeasible to the customer. Partial deliveries may be invoiced separately and are then payable as per paragraph 8.2
Annex 1 to No.14 of the General Terms and Conditions for Deliveries and Services by POOLOOP
1 Basics and Prerequisites for Installation
a) Minimum build-up of the aluminium substructure averages at 120 mm. It is the customers obligation to ensure that prior to installation commencement the cutting check, relative to the top edge of the GlassFloor, can be verified together with a duly authorized representative of POOLOOP and that the precise build-up level of the GlassFloor is set out in writing, so that a smooth connection to existing floors or thresholds can be achieved.
b) prior to installation start by POOLOOP, the subfloor must be barred from arising humidity by the customer.
c) Obstacle-free delivery for 28 ton trucks and trailers as well as articulated lorries with a length of 20 meters is presumed.
d) The delivery entrance of the building at which the installation is to be done must be hard-surfaced.
e) The building opening must be at least 2.8 m high and 1.6 m wide to enable in bringing of the elements. Access at ground-level must be ensured.
f) The unfinished floor in the area of installation must be level and hard-surfaced in such a manner that a forklift or other machinery with a weight of at least 1.7 tonnes can move about unhamperedly.
g) A corresponding loading ramp (steel scaffolding) in height of the corresponding storey must be erected in case delivery of GlassFloor elements is to be made into another level than ground-level. Minimum width of the loading ramp is set at 2.5 m. The loading ramp must meet the requirements of the respective Institution for Statutory Accident Insurance and Prevention.
h) It is pointed out that in case of glass panel breakage a potential replacement delivery of new glass panels to the place of installation of the GlassFloors must be possible – access height at least 2.3 m. This condition must be taken into account during planning.
i) The installation work presumes that the static conditions as well as the construction itself are unchanged upon installation start and especially do not pose amendments compared with the prevailing conditions during order placement, and which consequently would pose a significant impact to the installation of the floor.
j) The place of GlassFloor installation must be free of stored construction materials or other tools upon delivery of elements and installation start.
k) It is the customers obligation to ensure constant prevailingness of the following temperature and air humidity conditions on site: installation start: min. +10° C and a relative air humidity of max. 65%. Upon application of the silicon gaps, a room temperature of 18° to 20°C must be maintained.
l) the construction of a potential subfloor heating must be carried out dimensionally stable.
m) In bringing of site tools ought to be conferred with SHB (ventilation units, control cabinets, distributors, etc.)
2. Customers further duties to collaborate
a) The customer is obliged to provide site power supply (230V/400V) for installation at his expenditure. The customer is obliged to ensure room lighting of at least 350 Lux is provided during installation.
b) The customer is obliged to provide a crane or fork lift with sufficient capability for the offloading of all GlassFloor parts free of charge to POOLOOP
c) For determination of factual finished site dimensions, location must be free of materials, tools and other appliances from foreign trades. The surface must be broom-swept and dry.
3. Day rooms
The customer provides a day room for POOLOOP installers or employees where they may reside during breaks, as well as the possibility of use of welfare facilities.
Specification of services
A. Applicable regulations concerning the specifications of services by POOLOOP
B. Description of Services for POOLOOP
• Preparation of site measurements is not part of the service provided by POOLOOP. Should the parties expressly agree upon POOLOOP performing such service, then this service is to be compensated separately and as follows : The customer is to cover the cost for accommodation, travels and working hours for the duration of the stay.
• Maintaining a permanent uniform look of markings, joints, and surface of the floor are not part of the owed quota, as far as deviations in looks occur merely through usage (including humidity caused by use).
• Potentially required moisture-barriers against arising humidity within the customers premises foundations are not part of the scope of services. The additional services are to be compensated separately as per the actually arisen cost.
• In case differing unevenness in the foundations arise for which corrections or height adjustments become necessary, the customer is to compensate the services. These additional services are to be compensated as per the actually arisen cost.
• Waste management cost arising from services performed on site by SHB is to be borne by the customer
21h40 est concept imaginé par la société POOLOOP SAS au capital de 100 000 Euros 839 170 578 RCS Marseille – TVA INTRA : FR33839170578 8 allée Léon Gambetta, place de l’innovation. 13001 Marseille, France Tel : 0033 491118 898 / Mail : firstname.lastname@example.org / Web : www.21h40.com RIB : 10096 18062 000247 1640177 IBAN: FR76 1009 6180 6200 0247 1640 177 BIC : CMCIFRPP QXBAN : QX05 CMCI FRPP XXX0 2FAA 959P OJHB DOJM KE