General Terms and Conditions of online product Sales - Professionals
Article 1 - General provisions concerning these general terms and conditions of sale
These General Terms and Conditions of Sale (hereinafter “GTCSs”) constitute, in accordance with article L 441-6 of the Commercial Code, the single basis for the business relationship between the parties. They apply to the sales of products which are presented and ordered (hereinafter the "Product or Products") on the website which can be visited at the URL address https://pny.vgpu-software-configurator.com/ (hereinafter referred to as the "Site") of the company P.N.Y Technologies Europe, a Simplified Joint Stock company with a capital of €12,229,690, registered with the RCS (Trade and Companies Registry) of Bordeaux under the number 394 790 430 and of which the registered office is located at ZAC du Phare, 9 Rue Joseph Cugnot - 33708 Mérignac in France (hereinafter the "PNY" or the "Seller"). They apply exclusively to orders delivered in the EMEA territory, for customers who purchase products as part of their business activity (hereafter the "Buyer(s)" or the "Professionals").
1.2 Field of application
Any natural person who places an order on the Site certifies that he does so in the name of and on behalf of a Professional who is authorised to place an order according to the criteria detailed in this article. He or she certifies having confirmed the order, issued the payment and having taken delivery of it. Under no circumstances may PNY be held liable in this respect.
Prior to ordering, the Buyer is required to create an account. For the purposes of creating the account, he will have to fill out a form and enter all the requested information. The Buyer undertakes to provide correct and sincere information. He undertakes to use his account to order products for purposes which are only to do with his business activity. In the event of non-compliance, he will be solely responsible for the consequences which may result (criminal, tax...) and undertakes to guarantee PNY against any prejudice that PNY may suffer as a result of the non-compliance with this stipulation.
In particular, the Seller may not be held liable in the event of it being impossible for it to deliver, in the event of an error made by the Buyer in the wording of the contact information of the recipient of the order or of the place of delivery. PNY reserves the right to suspend the use of the account should the Buyer provide incomplete or inaccurate information.
1.3 Availability and enforceability
The GTCSs are made available to the Buyers on the Seller's website where they can be consulted directly and may also be sent to the Buyer on request by telephone, email or post.
The GTCSs as well as all the contractual information mentioned on the site are written in French, in English and in German and the French version shall prevail in the event of a conflict between the versions.
The GTCSs are enforceable on the Buyer who acknowledges, by ticking a box provided for this purpose, having familiarised himself with them and having accepted them before ordering.
The GTCSs constitute with, the online order, the enforceable contractual documents, to the exclusion of any other documents, prospectuses, catalogues or photographs of the products which only have an indicative value.
By validating the order the buyer confirms that he accepts the GTCSs which are current on the day of the order which are kept and can be reproduced by the professional Seller.
The professional Seller reserves the option to amend its GTCSs at any time. If the GTCSs are amended, the GTCSs which shall apply will be those which are effective on the date of the order.
The fact that a contractual clause is null and void does not lead to the GTCSs becoming null and void unless it is an impulsive and decisive clause which caused one of the parties to sign the sales contract.
The temporary or permanent non-application of one or more GTCS clauses by the Seller may not amount to the waiver by it of the other GTCS clauses which shall continue to be effective.
Article 2 - Products
The products which are offered for sale in the catalogue published on the site each have a description mentioning their essential features. The photographs which illustrate the products do not amount to a contractual document. The product instructions are provided at the time of delivery.
The products are designed to meet the strictest French and European standards regarding personal health and safety, as soon as they are marketed.
2.3 Availability of stocks
The products are sold and delivered depending on available stocks. If the ordered goods item is unavailable, the Seller will inform the Buyer of this who may be reimbursed within 30 days of payment of the sums that he has paid.
Article 3 - Price
3.1 Sale price
The sales prices are indicated, for each of the products shown in the electronic catalogue, in euros, with the prices being inclusive of transport costs, and are always expressed inclusive of VAT.
If VAT is applicable, it will be included in the sale price which takes into account the VAT applicable on the day of the order. Should one or more taxes or contributions, in particular environmental, be introduced or modified, with the effect of increasing and decreasing the price, this modification may be passed on to the sale price of the products.
The total amount due is shown on the order confirmation page.
The full price must be paid at the time of the order.
The Seller reserves the right to change its prices at any time, whilst guaranteeing the application of the price which is current on the day of the order.
Costs which may not reasonably be calculated in advance are payable.
Article 4 - Offer
The online sales offers presented on the site are reserved for Buyers residing in the EMEA territory for deliveries to this same geographical area.
The online sales offers presented on the site are valid, unless any other special term is indicated, for as long as the products are shown in the electronic catalogue and as far as stocks are available.
The Buyer’s acceptance of the offer is validated, by means of a double-click, which confirms the order.
Article 5 - Order
5.1 Contract-closing steps
In order to place an order, the Buyer must identify himself. The Buyer must have an account to do this and provide the required information. Once the Buyer has opened an account, he or she must identify themselves and fill their virtual shopping cart by indicating the selected products and desired quantities. The Buyer then clicks on the "Order" button and provides his delivery and payment information.
Before clicking on the "Confirm Order" button, the Buyer has the option of checking the details of his order and its total price and of going back to the previous pages to correct any errors or of possibly
changing his order.
The Buyer confirms his order by clicking on the "Order" button after having familiarised himself with the GTCSs and clicking on the "I have read and accepted the terms and conditions of sale (GTCSs)" button. Any validated order means in particular that the price has been accepted.
Once the order has been validated, the Buyer receives an acknowledgement of receipt for his order at the email address that he has provided. This acknowledgement of receipts states the amount invoiced and the delivery terms of the order. The Buyer accepts that the order registration systems amount to proof of the purchase and of its date.
5.2 Order validation
The Seller reserves the right to refuse any order on legitimate grounds.
The Buyer may track the status of his order in his Customer area or by sending an email to the following address: vGPUfirstname.lastname@example.org.
Article 6 – Contract
The sales contract is formed when the Buyer sends a confirmation of his order.
6.2 Archiving and proof
The archiving of communications, purchase orders and invoices is performed using a reliable and durable platform allowing the creation of a true and durable copy in accordance with article 1360 of the civil code. These communications, purchase orders and invoices may be produced as proof of the contract.
Article 7 - Payment
7.1 Payment due
The price is payable in full once the order has been confirmed.
Orders are paid for online, by bank card (Visa, MasterCard, and other debit cards) and in euros. Any foreign exchange costs are the entire responsibility of the Buyer.
The Buyer's bank card will be debited when the order is validated.
7.2 Payment security
The site has an online payment security system which allows the Buyer to encrypt the transmission of his banking details (secured browsing using the HTTPS protocol and payment platform provided by the Caisse d’Epargne). Bank card payments on the site are secured in accordance with French and international interbank regulations.
As part of its work on combatting internet fraud, the Seller may need to verify the bank details and/or identity of the Buyer before any delivery. By placing his order on the site, the Buyer undertakes to provide the Seller with the requested items of proof. If the details requested are not provided within the allotted time, the Seller reserves the right to cancel the order.
Article 8 - Delivery
Delivery means the transfer of the physical possession or control of the goods item to the Buyer.
The Buyer receives a despatch advice for the order by email and the order is delivered by the carrier against signature.
When he registers his order, the Buyer chooses where he wants to have the Products, which have been ordered, delivered.
8.2 Delivery time
The Seller undertakes, in accordance with the delivery deadline for each product indicated on the site, to deliver the products within five to six days after receiving the order. The deadlines given by the Seller are purely indicative and without any guarantee. In addition, force majeure events and exceptional circumstances beyond the Seller's control entitle it to delay delivery or terminate all or part of the order without the Buyer being able to claim any compensation or object to the partial completion. The following cases in particular are
considered as force majeure events or exceptional circumstances which release the Seller from its obligation to deliver: any case beyond its control such as wars, riots, fires, strikes at its sites or at those of its suppliers, accidents, supplies being made impossible, weather conditions (snow, storm, rain...) or an international terrorist related event.
8.3 Delay to delivery
In the absence of delivery on the specified date or, failing that, more than 30 days after the confirmation of this order, the buyer may order the seller to deliver the goods item to him or to perform the service within a reasonable additional deadline. The request is made by registered letter with acknowledgement of receipt or by email.
If, despite everything, the delivery or performance does not take place, the buyer may request by registered letter with acknowledgement of receipt or by email the termination (cancellation) of the sale.
8.4 Place of delivery
The products are delivered to the address indicated by the customer on the purchase order.
8.5 Delivery and transfer of risk
The risks of loss or damage to the goods are transferred to the Buyer as soon as he or a third party whom he has appointed, physically takes possession of the goods item, regardless of its nature.
It is the Buyer's responsibility to claim against the carrier within the deadlines and in the manner required by the Law in the event of a delay, damage or missing part. The transport includes transportation from our warehouses to the destination which is reasonably accessible to the delivery vehicles. Unloading is always the responsibility of the Buyer and is carried out at his own risk.
8.6 Transfer of ownership
THE TRANSFER OF OWNERSHIP IS SUBJECT TO THE FULL PAYMENT FOR THE PRODUCTS INCLUDING THE PRINCIPAL, INTEREST AND INCIDENTAL COSTS.
The Seller consequently reserves the right to make a claim in accordance with the law.
If the Buyer is in receivership or subject to a court-ordered liquidation, PNY reserves the right to lay claim, in the event of insolvency procedures, to the goods which have been sold but not paid for.
The Buyer undertakes to take out insurance and spontaneously in favour of the Seller, with a company of reputed solvency, to cover the risk of loss of the products which are concerned by the retention of title clause, and to prove its existence, the extent of the cover and the payment of the premium at the Seller's first request.
Article 9 – Guarantees
The Seller guarantees that the products supplied comply with the technical specifications described in the Seller's documentation and on the basis of which the Buyer placed the order. The term of the guarantee is set by the Seller and provided on its website or upon simple request.
The Seller will replace or have repaired the products or parts which are under guarantee
and which are deemed to be faulty.
The replacement of the faulty products or parts will not have the effect of extending the term of the above stated guarantee.
Finally, the guarantee may not apply if the products have been misused, or have been used in a way which not is not compatible with that for which they were made, particularly in cases of non-compliance with the conditions stipulated in the instructions for use.
It also does not apply in the event of damage resulting from a shock, fall, negligence, lack of supervision or maintenance, or indeed in the event of the product being converted.
Article 10 - Acceptance of the delivery - Claims
Upon receipt of the product or products the Buyer must carry out any necessary examinations for detecting any possible damage, missing parts, faults or other visible defects or non-compliance of the products which were delivered as part of his order.
He must in particular check the condition of the packaging, the number of packages and that the quantities, references, condition and
features of the products are right. He then has 72 hours from the receipt of the goods to issue any reserves and send them to the Seller. In the absence of reserves expressly issued by the Buyer, the products which have been delivered will be deemed to be compliant in quantity and quality with the order.
Under penalty of his request being declared inadmissible, the Buyer must:
- Indicate on the delivery slip the precise reserves with the reasons for them in the case of damages or missing parts, with general reserves of the type "subject to unpacking" being insufficient;
- Confirm his reserves, within the aforementioned deadline, for missing parts or damages and send his other reserves to the following address: email@example.com;
The claim may be made, at the Buyer's choice:
- by contacting the seller on the following telephone number: +33 (0)5 56 13 75 18;
- by using the following email address: firstname.lastname@example.org ;
He must also be able to provide any proof with regard to the reality of the claims made and provide the Seller, its carriers or any person mandated by them, with any assistance so that they can make their findings.
Any claim which is not made in line with the rules set out above and within the allotted deadlines may not be accepted and will release the Seller from any liability towards the Buyer.
Upon receipt of the claim, the Seller will allocate an exchange number for the product(s) concerned and will provide it to the Buyer by email. A product may only be exchanged once the exchange number has been allocated.
In the event of a dispute, you must first of all contact the company's customer service department on +33 (0)5 56 13 75 18 (calls are charged at the normal rate from any landline in mainland France), from Monday to Friday except on public holidays or non-working days, from 9am to 5pm or by email (email@example.com) or by post to (PNY Technologies Europe,Service RMA, 9 rue Joseph Cugnot, BP 40181, 33708 MERIGNAC Cedex, FRANCE).
Article 11 - Immaterial products sales
This article applies to the sale of so-called immaterial products which are available on the Site such as licenses but is not limited to it.
11.1 Processing time of the immaterial products order
Once the Buyer has completed the steps described in Article 5.1 when ordering an immaterial product on the Site, the processing time of the order is 72 hours. The deadlines given by the Seller are purely indicative and without any guarantee. The conditions set out in article 8.2, 8.3 and 8.7 of these GTCSs also apply to immaterial products that the Seller offers on the Site.
11.2 Receipt of the order for immaterial products
The Buyer receives his order by an email from the owner of the rights to the immaterial products providing all information allowing the Buyer to use the immaterial products purchased on the Site. Indeed, in the case of a license purchase, the Buyer acquires in this email license keys in the form of a code in order to activate the immaterial product he has purchased.
11.3 Transfer of rights to the immaterial products
Subject to agreement with the GTCSs and full payment by the Buyer, the Seller grants the Buyer a non-transferable and non-exclusive right to use the immaterial product (subject of the order) and associated documentation, for the full term of the current and future intellectual property moral rights, as agreed and stipulated by the French Intellectual Property Code and related international conventions. The Buyer accepts this right of use. This license right to the purchased immaterial product must be exercised in accordance with the provisions of the license of the respective rights holder. The immaterial product may only be used within the framework of the license conditions laid down by the latter.
11.4 Customer support on immaterial products
The customer support is provided by the owner of the rights on the immaterial product who provides a link to access it in the email sent to the Buyer placing the order. This support is included in the purchase of the immaterial product and is exclusively provided by the owner of the rights on the immaterial product. Thus, the Seller can in no way be held responsible for any failure in customer support.
Article 12 - Liability
The Seller may not be held liable in the event of the non-performance or the poor performance of the contract caused, either by the actions of the Buyer, or the insurmountable and unpredictable actions of a third party to the contract, or by force majeure.
The Seller may not be held liable for the non-compliance of a product with the legislation of the country of the Buyer who is responsible for checking that the product is not prohibited for sale in his country.
The Seller's liability for the products which have been delivered, including in terms of applicable contractual and/or legal guarantees, is limited to the price of the faulty or non-compliant products. The Seller may not be required to provide compensation for indirect damages or any other financial prejudice incurred by the Buyer or a third party.
The Seller may not under any circumstances be held liable as a result of any delays or breaches whatsoever in the fulfilment of the order, should they be attributable to a cause beyond its control. By express agreement such causes will include in particular: fire, strikes, insurrections, riots, floods, epidemics, administrative or court ordered seizures, embargoes, quarantine, restrictions, wars, subcontractor failure, act of state, foreign exchange, import or export restrictions, Act of God, act of the Buyer, breach or delay by the carrier. The Deadline for the fulfilment of the order will be extended by a period of time which is equal to that for which the force majeure situation lasts.
Should the situation persist beyond 30 days, the parties will meet to determine whether they intend to continue to meet their respective obligations, and if not the order will be cancelled as of rights without compensation on either side.
Any use which is inappropriate or contrary to the recommendations indicated in the instructions for use is at the risk of the Buyer and PNY may not be held liable as such for the non-compliance with the conditions of use, abnormal use or abnormal storage conditions of the Products.
Article 13 - Right of withdrawal
Since the Buyer is a professional who makes purchases as part of and for the purposes of his profession, there are no grounds for the application of the right of withdrawal which is stipulated by the consumer code.
Article 14 - Intellectual and material property
Any texts, comments, illustrations, images and Products reproduced and/or presented on the Site, are protected by intellectual property law, which means in particular copyright and/or trademark law and/or the rights over designs and models of which the Seller is the holder. The protected works reproduced on the Site and of which the Seller is not the rights holder are reproduced with the express and prior authorisation of the rights holders.
The Seller, in its capacity as publisher of the Site, grants the Buyer a private, non-collective and non-exclusive right to use the Site for consultation purposes. Any other use will amount to an infringement and is punishable under the Intellectual Property Code, unless the Seller has given its prior and express authorisation.
The Buyer therefore acknowledges that, in the absence of the Seller's express and written authorisation, any full or partial copy and any distribution or use of one or more of the above items, even if they have been modified, will render him liable to prosecution.
In general, the Buyer undertakes not to in any way harm the Site and the Products, nor to make any improper use of it which would directly or indirectly discredit or devalue the Seller and/or its Products.
The Buyer acknowledges that the Seller is the holder or has a right to use all the intellectual property rights covering the Products sold to the Buyer and that no rights to use or to reproduce the said rights are granted to him.
In particular, the Buyer undertakes not to alter the said intellectual property rights, or to make any improper use of them which would discredit or devalue them.
Article 15 - Code of conduct and Ethics
PNY Technologies Europe and its subsidiaries are wholly owned by PNY Technologies Inc. which is an American company that places a high value on legal and ethical conduct in its business life. Thus, PNY expects the Buyer to comply with all national and international conventions in the exercise of its activity and in particular to respect embargoes and sanctions taken against certain countries on an international scale. In this regard, the Seller does not sell its products in any country under international embargo and sanctions. In particular, the Buyer shall act in accordance with the United Nations Global Compact and the fundamental conventions issued by the International Labour Organisation. To this end, the Buyer must respect people at all levels of its activity, which implies respecting the right to freedom of association and collective bargaining, not discriminating in employment and occupation, ensuring fair wages and working hours for its employees, ensure working conditions that respect the health and safety of its employees, not use child or forced labour, respect the environment and behave ethically in business life, in particular by acting against bribery and corruption. If the Buyer breaches any of these fundamental principles, PNY may as of rights terminate these GTCSs, without compensation, by registered letter with acknowledgement of receipt.
Article 16 - Anti-corruption measures
The Buyer undertakes, both on its own behalf as well as on behalf as the case may be, of its employees, agents, subsidiaries, subcontractors, in respect of whom it guarantees, to comply with all the applicable anti-corruption laws and regulations and in particular the law no. 2016-1691 of 9 December 2016 on transparency, on combatting corruption and the modernisation of the economy.
In addition, it expressly undertakes:
- not to engage in any act of corruption, influence peddling, extortion, embezzlement or any other conduct which is punishable by law;
- to put in place and maintain appropriate ethics and anti-corruption policies and procedures;
- to inform PNY immediately, and no later than seventy-two hours (72 hours) of any event which may result in an unfair financial advantage or in any advantage of any other nature being obtained in connection with these GVCs;
- to provide any assistance necessary for PNY to respond to a request from a duly empowered anti-corruption authority.
It is understood that in the event of the non-compliance with the provisions of this article, PNY may as of rights terminate these GTCSs, without compensation, by registered letter with acknowledgement of receipt. The termination will then be considered as one caused by the fault of the Buyer and may entitle PNY to damages and interest.
Article 17 - Personal data protection
17.1 Collection of personal data
In order to register and process Buyers' orders and/or to respond to requests for information, the Seller collects data which is computer processed for the purposes of managing the business relationship properly. This information includes in particular the Buyer's business contact details (identity, business telephone number, e-mail).
17.2 Data collected
The personal data which is collected on this site is the data which is necessary for creating the user's account, the login, usage, location and payment data, the financial data concerning the user's bank account or credit card, or the cookies in use on the site.
The website implements organisational, technical, software and physical measures as part of the digital security for protecting personal data from unauthorized tampering, destruction and access. However, it should be pointed out that the internet is not a completely
secure environment and the website cannot guarantee the security of the transmission or storage of information on the internet.
17.4 User rights
In accordance with Regulation No. 2016/679, known as the General Data Protection Regulation, the natural persons concerned are entitled to access, rectify, oppose for legitimate reasons, and erase this information. Any person wishing to exercise these rights must send an email to firstname.lastname@example.org or write to the following address: PNY Technologies Europe – ZAC du Phare – 9 rue Joseph Cugnot – 33708 Mérignac – France.
Article 18 - Personal data protection
18.1 Applicable law
The GTCSs are subject to French law.
They are written in French.
If they are translated into one or more languages, only the French text shall apply in the event of a dispute.
18.2 Competent court
Any disputes arising over the performance or interpretation of these GTCSs, and which could not be settled amicably between the Parties within thirty (30) days of the start of the negotiations, will be brought before the Commercial Court of Bordeaux, and this, even in the case of an introduction of third parties or multiple defendants.