GENERAL TERMS AND CONDITIONS FOR PROFESSIONAL CUSTOMERS
Application date: 01/01/2022
1. General Principles
These General Terms form the basis of any commercial negotiation and shall be issued to each buyer (Customer) upon request.
If the vendor (Winckelmans) fails at any time to enforce any of these general terms this shall not be construed as a waiver of its right to enforce any of these terms at a future time.
In accordance with current regulations, Winckelmans reserves the right to override any of these General Terms based on negotiations with the Customer, by issuing Special Terms or a framework agreement.
Before every order, Winckelmans shall issue a quote, either online, in store or by email. The quote shall be valid for three (3) months unless stated otherwise in the quote, starting from when it is received by the Customer. If the Customer does not accept the quote within this deadline, the quote shall expire. Quotes are only valid if signed by the Customer.
Orders are not final, even when made through agents or representatives, until confirmed in writing by Winckelmans.
Orders are only valid if they state the product quantity, type, code and agreed price, the payment terms and delivery address.
Winckelmans shall fulfil orders subject to availability.
As part of their usual business and unless they are officially declared unable to meet their current liabilities, Customers are authorised to resell the goods delivered, subject to paying the corresponding amounts to Winckelmans.
Changes to an order requested by the Customer will only be considered if made to Winckelmans in writing within seven (7) calendar days from the original order date. Winckelmans reserves the right to reject any changes. If the changes are approved, Winckelmans shall issue a new quote which must be accepted by the Customer.
Winckelmans reserves the right to cancel an order due to unavailability of stocks or raw materials needed to produce the goods. Winckelmans may offer a replacement produce to the Customer.
Winckelmans reserves the right to cancel an order if it cannot be fulfilled for technical reasons, in particular if the documentation (e.g. plans, designs) supplied by the Customer are insufficient to be able to fulfil the order. The Customer shall supply accurate and quantified information in support of any order.
Goods are supplied at the price applicable on the date of the order. Prices are net, do not include taxes and are stated in euros.
Prices do not include transport, insurance, installation, installation accessories and/or maintenance accessories, which are the responsibility of the Customer.
For sales outside mainland France, Customers should refer to the Incoterms stated on the quote to determine responsibility for costs and charges (e.g. customs, transport).
Price lists can be obtained from Winckelmans outlets and showrooms and are enclosed with these General Terms.
Unless agreed otherwise, the prices stated in the quote are only valid for three (3) months.
Winckelmans produces a price list every six months and reserves the right to change prices during the year following exceptional increases in the cost of raw materials.
Special pricing terms may be applied based on the Customer’s specific requirements, for example concerning delivery and payment terms. In these cases Winckelmans may send a special quote to the Customer.
Winckelmans may invoice additional design costs for special orders (e.g. bespoke tiles), especially when Winckelmans is required to invest in tooling (design and purchase of moulds).
Winckelmans may request payment of a deposit for special or large orders, including for account customers. Production will not be scheduled until the deposit is paid.
Unless agreed otherwise, Winckelmans will not grant any discounts on sales of goods.
Unless agreed otherwise, prices are payable in full on the invoice date.
Winckelmans will issue the invoice after the Customer has accepted the quote. Payment shall be made to Winckelmans, irrespective of the payment method and without Winckelmans having to make a formal payment request or complete any other formality.
If a deposit is requested, it must be paid at the time of the order. Unless agreed otherwise, the balance is payable in full no later than two (2) working days before the delivery date or availability date of the goods.
Payment may be made in cash (for amounts up to €1,000), by bank card or bank transfer.
4.2 Late payment and non-payment
If payment is late, the vendor may suspend any outstanding orders without prejudice to any other right of action.
Any amount not paid by the deadline stated on the invoice shall automatically and lawfully incur a penalty, starting on the date after the payment date stated on the invoice, equal to three times the legal interest rate. Penalties for late payment are payable without the need for notification. A flat-rate debt recovery charge of €40 shall also be levied.
These penalties and charges are payable upon simple request from Winckelmans. If the actual recovery costs exceed this flat-rate charge, Winckelmans may request an additional penalty, subject to providing evidence.
In case of non-payment, Winckelmans reserves the right to suspend all outstanding production and deliveries. Winckelmans may also send an official warning and, if not heeded within seven (7) calendar days, then halt production, lawfully cancel the sale and file summary proceedings for return of the goods, without prejudice to any other damages owed. If payment is made with a bill of exchange, failure to return the bill will be considered a dishonoured bill i.e. non-payment.
In all the above circumstances, any amounts owed for other deliveries or any other reason shall become immediately payable, unless Winckelmans decides to cancel the corresponding orders.
Under no circumstances may payments be suspended or offset against other amounts without prior written permission from Winckelmans. Any partial payment shall first be allocated towards payment of the non priority debts, then to the amounts that have been outstanding for the longest.
Winckelmans will not grant any discount for early payment on a date prior to the date established by these General Terms or the quote.
4.3 Payment guarantees and settlement
At any time during the order and based on the risks incurred, Winckelmans may request a payment guarantee.
This in particular applies if the buyer undergoes any changes or if its creditworthiness is negatively affected by a sale, lease, pledge or contribution of its goodwill.
Winckelmans will make best efforts to comply with the manufacturing lead times communicated to the Customer. However, the manufacturing times are approximate and likely to vary based on activity.
Delivery shall be made in accordance with the order, either by direct handover of the product to the Customer, by simple notification of availability, or by delivery to a carrier or consignor at the Winckelmans warehouses. In all cases, the Customer must sign the delivery slip issued by the carrier or by Winckelmans.
The Customer shall take delivery of the goods within fourteen (14) calendar days from the availability date. After this time, storage costs will be charged.
Deliveries are subject to availability and orders are fulfilled by order of arrival. Winckelmans may make full or partial deliveries.
Delivery times are as accurate as possible, but are subject to the supply and transport capabilities of Winckelmans.
Damages may not be claimed, outstanding payments may not be withheld and outstanding orders may not be cancelled on the grounds of late delivery.
For sales in mainland France, Winckelmans shall bear the risks from when the goods are handed to the carrier.
When the product is delivered by a carrier to the address stated on the quote or order confirmation, the Customer must check the products in the presence of the carrier and, if any items are damaged or missing, make a note on the delivery slip and possibly even refuse to accept the delivery, and inform Winckelmans within three (3) working days.
The risk of loss or damage shall be transferred to the Customer from the moment the Customer, or an appointed third party, takes physical possession of the goods.
For sales outside mainland France, Customers should refer to the Incoterms stated on the quote and/or order confirmation.
Claims for apparent defects or non-compliance of delivered goods with the order or delivery slip must be made in writing to Winckelmans within five (5) calendar days from delivery of the goods, and before the goods are used.
The Customer is responsible for supplying evidence of the defects or problems. The Customer must allow the vendor to verify the existence of the defects and make repairs. The Customer must not make any repairs itself or instruct a third party to do so.
If no complaint is received within the given deadline, and without prejudice to the hidden defects warranty described in Article 12, the quality and quantity of the goods will be deemed to comply with the order and the goods may not be returned or exchanged. No compensation may be claimed.
If any delivery defects are confirmed, the liability of Winckelmans will be limited strictly to supplying replacement goods, excluding any reimbursement or compensation.
The dimensions and colours of Winckelmans products are subject to unavoidable variations and the standard allowances apply. There may be slight colour differences between the samples and the products delivered.
Larger orders may also be delivered with slight colour variations due to manufacturing constraints, in which case the Customer will be informed prior to the goods being made available. No claims for colour variations will be accepted after installation.
Goods may not be returned or exchanged except in the circumstances described in these General Terms or unless the parties agree otherwise.
9. Retention of ownership
WINCKELMANS PRODUCTS ARE SUBJECT TO RETENTION OF OWNERSHIP, AS DEFINED BY LAW. Until the Customer has paid the price in full, Winckelmans shall retain ownership over the goods sold and may therefore retake possession of those goods.
Material investments (in particular tooling e.g. for moulds) made by Winckelmans to fulfil special orders and productions shall remain the property of Winckelmans after the contract is ended.
10. Transfer of ownership – Transfer of risk
Ownership shall only be transferred to the Customer after the price has been paid in full.
For sales in mainland France, risk shall be transferred to the Customer upon signature by the Customer of the delivery slip.
For sales outside mainland France, Customers should refer to the Incoterms stated on the quote.
11. Warranty – Liability
All products supplied by Winckelmans are guaranteed against hidden defects as per articles 1641 to 1649 of the French Civil Code.
Art. 1641 French Civil Code:
“The vendor is responsible for any latent defects in the purchased item that make it unfit for the intended use, or that limit that use to such an extent that the buyer would not have purchased it, or would have only paid a lower price, had the buyer known about the defects”.
Art. 1648, 1st paragraph, French Civil Code:
“The statutory time limit for claims for latent defects is two years from discovery of the defect”.
The Customer may claim against Winckelmans by sending written notification by recorded delivery, together with supporting documents. Claims must be made within two (2) years from discovery of the defect and within five (5) years from purchase.
The Customer is responsible for supplying evidence of the defects.
The Customer may choose between returning the goods and receiving reimbursement for the amounts paid, or keeping the goods and receiving reimbursement of part of the price.
The warranty does not cover apparent defects. Apparent defects are evident upon delivery and should be reported immediately; Winckelmans will not accept liability for the consequences of using any goods with an apparent defect or a mistake in the fulfilment of the order.
Liability does not extend to faults and damage due to (a) natural wear and tear or an external cause (e.g. flooding); (b) changes made to the goods not planned nor specified by Winckelmans; (c) negligence or incorrect use or maintenance of the goods contrary to the recommendations of Winckelmans; or (d) lack of maintenance by the Customer.
Winckelmans will not accept liability for damage or faults due to installation of the goods, except when installed by a Winckelmans fitter.
Winckelmans will not accept liability for orders delayed for reasons beyond its control, such as strike, or for events of force majeure as defined by law and the courts.
In the event of a dispute concerning the interpretation or execution of their agreements, the parties shall first seek an amicable agreement prior to taking any legal action and shall for this purpose share all necessary information.
If no amicable resolution can be found within one (1) month, the competent courts of Lille shall have sole jurisdiction to hear claims of any nature or disputes concerning the formation or execution of the order.
This clause also applies to summary proceedings, interlocutory applications, cases involving multiple defendants or guarantee claims, and irrespective of the payment method and terms; this clause shall not be affected by any election of jurisdiction clauses in the buyer’s documents.
These General Terms of Sale are written in French. If translated into one or more languages, only the French version shall be binding in case of a dispute. French is the language of the proceedings for any dispute.
13. Governing law
These General Terms of Sale are governed by French law, to the exclusion of the Vienna Convention on the International Sale of Goods.