Application date: 01/01/2022

1. General terms

1.1 Description

These General Terms set forth the sole contractual terms applicable to any purchase made at a retail outlet of the vendor (Winckelmans) by any buyer (Customer) in a consumer capacity.

1.2 Scope

These contractual terms apply only to products ordered, delivered and invoiced to retail customers, to the exclusion of any professional customer.

1.3 Contractual provisions

The nullity of any clause shall not entail nullity of the General Terms unless that clause was an essential and fundamental condition of either party’s decision to enter into the contract of sale.
The Customer is deemed to have agreed unconditionally to the entire General Terms.

1.4 Changes to the General Terms

Winckelmans reserves the right to change its General Terms at any time.
The General Terms that apply shall be the General Terms in force on the date of the order placed by the Customer.

2. Precontractual information

Before each order, Winckelmans will provide the precontractual information required by articles L111-1 and L111-2 of the French Consumer Code.

3. Products

3.1 Product features

Prior to placing an order, the Customer may learn the essential features of the desired products by reading the precontractual information that will be supplied by Winckelmans before any order; this information may be found in a product catalogue or on the company’s website, https://www.winckelmans.com/catalogues/.
The photos and images shown in the catalogue or website are provided for illustration only and are not contractually binding on Winckelmans, who is not required to guarantee a perfect likeness between the product ordered and the product depicted.

3.2 Stock availability

Products are offered and delivered subject to availability.
Should the ordered products be unavailable, Winckelmans shall inform the Customer immediately and may offer a product of an equivalent quality and price or, failing this and if the order has already been paid for, Winckelmans may offer a credit note for the amount of the order valid for any future purchase.
Should the Customer refuse these offers, Winckelmans shall reimburse the amounts paid within one (1) month
Beyond reimbursing the cost of an unavailable product, Winckelmans is not required to pay any cancellation penalty, unless it is personally responsible for the breach of contract.

4. Orders
4.1 Irrevocability of orders

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.
Signature of an order by the Customer shall be fully and irrevocably binding.

4.2 Amending an order

If the Customer wishes to change an order it must do so within seven (7) days from the date of the order and the changes are subject to agreement from Winckelmans. If the changes are approved, Winckelmans shall issue a new quote which must be accepted by the Customer.
Winckelmans has a duty to deliver goods as per the order.
If the ordered goods are unavailable, Winckelmans shall offer the Customer an equivalent product to replace the product that was ordered, subject to agreement from the Customer. If the Customer does not agreed to a replacement, the order shall be cancelled on the grounds of unavailability and the Customer shall be reimbursed.

4.3 Order validity

Winckelmans reserves the right to refuse any order on legitimate grounds, in particular if the quantities ordered are abnormally high compared to quantities usually ordered by Retail Customers, or if the goods ordered are unavailable, or if the order cannot be fulfilled due to insufficient capacity.

4.4 Order cancellation

In accordance with articles L216-2 et seq. of the French Consumer Code, Winckelmans must deliver the products to the Customer on the agreed availability date.
The Customer may cancel the order in the following circumstances by sending a written request by recorded delivery:
– The products delivered are not as described;
– The products are delivered after the deadline stated in the quote or, if no deadline is stated, within thirty (30) days from the order date, and after Winckelmans has been asked, in the same manner but without effect, to make the delivery by a reasonable extended deadline;
– The price is increased and this is not justified by technical changes to the products required by the authorities.
In all these circumstances, the Customer may request reimbursement of the deposit paid on the order, plus interest calculated at the legal rate starting from the date on which the deposit was paid.
Winckelmans may cancel the order in the following circumstances:
– The Customer refuses to accept delivery of the products as per Article 7.5;
– The price (or outstanding balance) is not paid prior to delivery or by when the goods are made available.
In all these circumstances, Winckelmans shall retain the deposit paid on the order by way of indemnity.

5. Price
5.1 Purchase price

The purchase price of the products shall be the price applicable on the date of the order. Prices are stated in euros and are inclusive of all taxes. Price lists can be obtained from Winckelmans outlets and showrooms and are enclosed with these General Term.
Unless stated otherwise, the sale price of goods does not include transport, delivery, installation, installation accessories and/or maintenance products, which are the responsibility of the Customer.
The quote states the total price to be paid by the Customer. Unless agreed otherwise, the prices stated in the quote are only valid for the duration of the quote.
Winckelmans may request payment of a deposit for special or large orders, including for account customers. In these circumstances, production will only be scheduled once Winckelmans has received the deposit.

5.2 Costs

Additional costs for transport, delivery, franking, installation (plus any other costs incurred by Winckelmans) shall be communicated to the Customer prior to the order and stated in the quote.
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). These costs will be stated on the quote and must be specifically accepted by the Customer.
5.3 Changes to the price
Winckelmans produces an annual price list. Winckelmans may change its prices during the year and will issue an updated price list.
However, if prices are changed after an order has been placed, the Customer will only be required to pay the price in force on the order date.

6. Payment
6.1 Due date

The price is payable upon issue of the invoice by Winckelmans after acceptance of the quote by the Customer.
Winckelmans will not grant any discount for early payment on a date prior to the date stated in these General Terms, the quote or the invoice.

6.2 Payment methods

Payment may be made in cash (for amounts up to €1,000), by bank card or bank transfer.

6.3 Late payment

Any amount not paid by the due date shall automatically and without warning incur interest at the legal or contractual rate.

6.4 Non payment

If the agreed price is not paid in full by the due date, Winckelmans reserves the right to (i) not deliver or not make available the goods; (ii) request enforcement of the sale; or (iii) cancel the contract in writing by recorded delivery and withhold any deposit paid by way of indemnity.

6.5 Retention of ownership

WINCKELMANS PRODUCTS ARE SUBJECT TO RETENTION OF OWNERSHIP, AS DEFINED BY LAW. Winckelmans shall retain ownership of all products sold until the price is paid in full; the Customer agrees to take all precautions necessary to protect the products until ownership is transferred to the Customer.
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.

7. Delivery
7.1 Definition

Delivery means transfer of the physical possession and responsibility for the products to the Retail Customer.

7.2 Delivery time
Products shall be delivered on the date or within the deadline stated in the quote.
If no delivery date is stated, Winckelmans shall in all cases endeavour to deliver the products within thirty (30) days from when the contract is signed.

7.3 Late delivery

If the products are not delivered on the date or within the deadline stated in the quote, the Customer may ask Winckelmans to make the delivery within a reasonable extended deadline and, if this is not done, cancel the contract in writing by recorded delivery or other durable medium.

7.4 Point of delivery

Products shall be delivered to the address stated by the Customer in the quote or purchase order. Winckelmans shall not accept responsibility for any errors in the delivery address attributable to the Customer.

7.5 Delivery methods

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 must collect the ordered products within fifteen (15) working days from the notification of availability. If the products are not collected within this time, Winckelmans will inform the Customer and, if no action is taken, automatically and lawfully cancel the order and retain the deposit by way of indemnity.
When the product is delivered by a carrier to the address stated on the quote, 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.

7.6 Delivery and transfer of risk

Products delivered to the Customer by a carrier selected by Winckelmans shall travel at the risk and liability of Winckelmans.
Products delivered to the Customer by a carrier selected by the Customer shall travel at the risk and liability of the Customer from the time the products are handed to the carrier.
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.

7.7 Transfer of ownership

Ownership of the goods shall be transferred to the Customer once payment has been received in full.

8. Returns

Goods may not be returned or exchanged except in the circumstances described in these General Terms or unless the parties agree otherwise.

9. Compliance

The vendor is responsible for non-compliance of the goods under ordinary law and consumer law.

10. Statutory warranty

10.1 Consumer information

All products supplied by Winckelmans are covered by a statutory compliance warranty as per articles L.217-4 to L.217-14 of the French Consumer Code, and are guaranteed against hidden defects under articles 1641 to 1649 of the French Civil Code.

10.2 Statutory compliance warranty

Art. L. 217-4 French Consumer Code:
“The vendor must deliver an item that complies with the contractual specifications and must rectify any non-compliance identified upon delivery.
The vendor shall also be held liable for any non-compliance caused by the packaging or by the assembly or installation instructions, if these are contractually its responsibility or are provided at its responsibility”.

Art. L. 211-5 French Consumer Code:
“The item is deemed to comply with the contractual specifications if it:
1) is fit for the use commonly expected of a similar item and, if applicable
– if it matches the description given by the vendor and has the same features as presented to the buyer in the form of a sample or model;
– if it has the properties that a buyer may legitimately expect based on the public declarations made by the vendor, manufacturer or its representative, especially in any advertisement or labelling;
2) exhibits the features mutually agreed by the parties or is fit for any special use required by the buyer, as communicated to and agreed by the vendor”.

Art. L. 217-12 French Consumer Code:
“The statutory time limit for claims for non-compliant items is two years from delivery of the item”.
The Customer may invoke the statutory compliance warranty by contacting Winckelmans whose contact details can be found on the quote.

When invoking the statutory compliance warranty, the consumer:
 must do so within two (2) years from delivery of the goods;
 may select between repair or replacement of the goods, subject to the cost conditions established by article L. 211-9 of the French Consumer Code;
 does not need to provide evidence of any compliance fault during the twenty-four (24) months following delivery of the goods.

The Customer may claim under the warranty against Winckelmans by sending a written notification by recorded delivery, together with supporting documents. The contact details for Winckelmans can be found on the quote.

11. Hidden defects warranty

All products supplied by Winckelmans are guaranteed against hidden defects as per articles 1641 to 1649 of the French Civil Code.

The Customer may decide to invoke the hidden defects warranty for sold goods under article 1641 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.

12. Liability, Force majeure, penalties
12.1 Limitation of liability and Force majeure

Winckelmans will not accept liability for non or incomplete performance of the contract attributable either to the Customer, to an unavoidable and unforeseeable act by a third party, or to an event of force majeure.
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.

12.2 Penalties

If the Customer fails to fulfil its obligations as described above, Winckelmans shall retain the deposit paid on the order by way of indemnity.

13. Termination clause

An order may be automatically and lawfully terminated as per these General Terms by sending a letter by recorded delivery.

14. Intellectual Property

The Customer has no intellectual or industrial property rights over the products, packaging or packing and Winckelmans remains the sole owner of all these rights.
The Customer is strictly prohibited from using the Winckelmans trademark or any other mark belonging to Winckelmans or its suppliers and manufacturers in any way whatsoever, unless permission is received from Winckelmans.
The content and structure of the website and catalogues are protected worldwide by copyright and intellectual property rights.
However, in accordance with the French Intellectual Property Code, private use is permitted subject to the terms of the Intellectual Property Code, which may differ and be more restrictive.
Any total or partial reproduction or representation of any content of the website and catalogues (in particular any text, image, graphics, photograph, mark or logo) is prohibited for any purpose and on any medium.
Breach of this clause will constitute infringement for which the perpetrator may be held civilly and criminally liable.
No provision of these General Terms of Sale may be construed as conferring upon the Customer any licence to any intellectual property right.

15. Personal data

The personal data collected from Customers for the purposes of the contract will be computer processed in order to fulfil the order.
The Data Controller is: Ets WINCKELMANS, 584 avenue de Dunkerque 59160 Lomme, France.
No personal data will be transferred outside the European Union.

16. Dispute settlement
16.1 Complaints

Complaints should be sent to the company’s customer service department at the following address:

Ets WINCKELMANS
Service Clientèle
584 avenue de Dunkerque
BP10147
59461 LOMME CEDEX
France

16.2 Mediation

If a complaint fails, Customers may use conventional mediation or any alternative dispute resolution method; in particular, within one (1) year from making a complaint, Customers may use the services of the competent Consumer Ombudsman free of charge, as per Title 5, Book I of the French Consumer Code.
In order to settle a dispute, Customers may use the European online dispute resolution system established by Regulation (EU) no. 524/2013 of 21 May 2013 on the resolution of online consumer disputes, especially cross-border cases, available at this link:
http://ec.europa.eu/consumers/odr/.
If mediation fails, or if the Customer does not wish to use mediation, a claim may be submitted to the competent courts.

16.3 Election of jurisdiction

The French courts have sole jurisdiction to hear disputes of any nature or complaints concerning the formation, interpretation or execution of the contract.

17. Applicable law and language

The language of the contract is 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.
These General Terms of Sale are governed by French law.