Términos Generales y Condiciones

If you want to buy a product or a service from us below Our General Terms & Conditions

MUSTHANE GENERAL TERMS AND CONDITIONS OF SALE, SERVICE AND PRODUCT DEVELOPMENT

First, we wish to point out that these general terms and conditions concern the business operated by Musthane, including the following for example:

• Product sales
• Technical and other analyses and studies (that do not lead to the production of a prototype)
• Testing of material samples
• Testing of product samples
• Product maintenance
• Product diagnostic and analysis
• Installation diagnostic and analysis
• Product installation
• Customer and user assistance with product installation
• Training

These terms and conditions apply to the relationships between Musthane and our customers. The above services are listed by way of a guide.

These terms and conditions also naturally apply to sales contracts.

1. Application of general terms and conditions of sale and service – Enforceability

These general terms and conditions of sale and service have been drawn up in accordance with Article L 441-1 of the French Commercial Code and apply automatically to the products and services sold by Musthane.

They form the basis of our business negotiations and are systematically sent or provided to all of our customers so that they may place an order.

No forbearance by Musthane at any time in relying on these general terms and conditions of sale and service should be construed as a waiver of our right to rely thereon in the future.

Musthane reserves the right to modify these general terms and conditions and our prices at any time, in which case the revised version thereof will take effect one month after publication of the new terms and conditions and/or prices.

Unless our letters state otherwise, our products and services are sold in accordance with the general terms and conditions set out below, which supersede any terms and conditions of purchase contained in our customers’ orders or correspondence.

By purchasing a service from Musthane, the Customer is unreservedly agreeing to comply with these general terms and conditions of sale and service.

Should it transpire that one or more provisions of these general terms and conditions of sale and service are invalid, unlawful or inapplicable for whatever reason, they will be deemed void ab initio and the other provisions hereof will continue to apply to the products sold and services provided by Musthane.

The Customer was provided with and validly accepted these general terms and conditions during our contractual negotiations. Acceptance means any expression of the Customer’s consent, which may be given by any written means.

In any case, these general terms and conditions are deemed to be enforceable as soon as:

• The Customer confirms their order;
• An initial payment is made to Musthane;
• The Customer uses some or all of the services provided or products delivered.

2. Orders

In order to be valid, orders must state the number of products sold, the services provided, the price agreed, the applicable payment terms and the delivery or collection location and date.

Orders will only be final once Musthane has confirmed them in writing and (if applicable) following the payment of an advance.

The data stored in Musthane’s computer system constitutes proof of all the transactions entered into with the Customer.

Unless specifically agreed otherwise, by confirming an order, the Customer is acknowledging that they are fully aware of and accept these general terms and conditions, and agreeing not to rely on their own general terms and conditions.

By confirming an order also implies that the customer undertakes to read the instructions for use of the products as soon as they are received and before use. Some instructions are available on our website (https://musthane.fr) or on request from musthane@musthane.com.

If Musthane proposes to carry out a study or produce a prototype, we will use the resources we consider necessary to carry out the proposed study and potentially produce a prototype if that forms part of the study.

By making such a proposal, we are not guaranteeing to produce a specified result unless we specifically state otherwise in our quote or on the sale confirmation.

Orders must be for a minimum of €450 excluding VAT. However, if Musthane accepts an order for a lower amount, the Customer will be charged an administration fee of €95.

Products will be despatched from our warehouses subject to availability when we receive an order. If a product is out of stock, Musthane will fulfil orders chronologically, subject to availability.

Unless an order is cancelled, the quotes issued by Musthane are valid for the period stated therein or otherwise for 30 days from the date of the quote. Our prices are fixed and exclude VAT, and the product or service will be delivered or provided within the timeframe stated in the quote. Our prices and terms apply ex works.

In principle, Musthane will not take back any product for which an order has been placed. However, if we voluntarily agree to take back a product, at least 50% of the sale price will be deducted from the amount credited to the Customer.

3. Order amendments

We will only consider amending or terminating an order at the Customer’s request if the Customer contacts Musthane in writing before the sale confirmation has been sent, before any products have been manufactured or before any services have commenced.

If Musthane does not agree to amend or terminate an order, any advance payment will belong absolutely to Musthane and the Customer will be charged for the amounts incurred by us.

Musthane reserves the right to make any changes we consider appropriate to our products at any time and to modify the models shown in our brochures and catalogues without notice.

4. Prices

The prices of our products and services and the applicable payment terms are set out in the relevant business offer or purchase order.

Our product prices are charged in euros according to the prices applicable when an order is placed, and VAT is charged at the rate applicable on the order date. Any change to the VAT rate may be applied to the price of our products.

The services provided by Musthane are charged according to the prices applicable on the date on which an order is placed, in accordance with the quote prepared by us and accepted by the Customer. Our prices are stated in euros, excluding tax (notably VAT), which is applied at the rate applicable on the invoice date.

A fixed administration fee of €95 is applied to any order for less than €450 excluding VAT.

The buyer is liable for any and all levies, taxes, fees and other charges payable pursuant to the regulations in force in France, any import country or any transit country.

5. Delivery

5.1. Delivery terms

Deliveries are made in accordance with the order, to the location indicated by the buyer on the purchase order.

5.2. Delivery times

Deliveries are made subject to availability and in the order in which orders are received. Musthane is authorised to make full or partial deliveries.

Delivery times are indicated as accurately as possible but are subject to the availability of supplies and transport services. They begin to run when payment is received or, in exceptional circumstances, when an order is accepted.

If a delivery is delayed, the Customer will not be entitled to any damages, to withhold payment or to cancel a pending order.

5.3. Risks

The products ordered by the Customer are deemed to be finished and approved in our warehouses, where custody of our products is transferred to the Customer unless otherwise agreed.

Products are shipped at the risk of the addressee, who must take note of any damaged or missing products and report the issue to the carrier in a document served by a process server or a letter sent registered post (with acknowledgment of receipt) within three days of receipt of the goods, failing which they will be out of time.

5.4. Acceptance of products and services

Without prejudice to the steps that must be taken with the carrier, complaints concerning apparent defects or the non-conformity of a product compared to the product ordered or the despatch note must be made in writing within eight days of delivery of the product(s).

The Customer must provide proof of the defects or issues observed and enable Musthane to ascertain and cure them. The Customer must not attempt to do so themselves or have a third party attempt to do so. The weight and dimensions of products that are sold in packaging constitute proof of the number of products delivered.

6. Product returns

6.1. Returns procedure

Product returns must be formally agreed between Musthane and the buyer. Any product that is returned without such formal agreement will be placed at the buyer’s disposal and no credit note will be issued. The buyer must always bear the cost and risk of returning a product.

No return will be accepted more than 15 days after the delivery date.

Goods must be returned with a returns note affixed to the external packaging and must be in the condition in which they were delivered by the carrier.

6.2. Consequences

For product returns that are accepted by Musthane, we will issue a credit note to the buyer after checking the condition and number of products returned. If the above returns procedure is not followed, the buyer will forfeit any advance payment made and will be liable to pay the applicable invoice.

7. Product warranty

In principle, our products are not covered by a warranty. However, the following terms will apply if Musthane agrees to offer a specific warranty for a product.

Any such warranty will only cover the repair or replacement of the faulty product; the sale may not be terminated and Musthane will not pay any damages. We will not consider any complaint concerning a Musthane product that has been worked on or modified or if a product has been assembled or installed inappropriately and/or used in an unusual manner. All of our polymer products are sensitive to ultraviolet (UV) rays and ozone. Their life span will be significantly reduced if they are exposed to climatic factors (UV rays, ozone, a sandstorm, etc.) without protection for a long period of time.

Owing to the specific nature of our products, we do not accept complaints concerning their appearance.

If we supply goods or equipment as part of an installation, the above provisions will only apply if the installation has been installed by a professional in accordance with the technical regulations and standards in force.

The Customer expressly acknowledges and accepts that a warranty given in relation to a specific order will not entitle them to a warranty for future orders.

We specifically do not cover indirect losses such as the loss or corruption of data, loss of profit or customer attrition.

8. Products, prototypes, demonstration models and other elements developed on request

These terms and conditions will apply to any specific product developed by Musthane at the request of a customer. Furthermore, Musthane will retain ownership at all times of the intellectual property and copyright to the designs, products and/or prototypes developed and produced for our customers.

The Customer acknowledges and accepts the foregoing.

Furthermore, the products manufactured on the above terms are covered by original research and therefore constitute protected know-how.

Consequently, if Musthane does not enter into a relationship with the Customer and/or if our relationship with the Customer is suspended, the Customer agrees not to use the product manufactured for them by Musthane directly or indirectly and in any way whatsoever, without prejudice to any intellectual and/or industrial property rights relied on by Musthane.

9. Terms applicable to services and technical studies

The Customer agrees to provide Musthane with such information and instructions as we require to successfully provide the requested services.

More specifically, the Customer agrees to diligently reply to all communications they receive from Musthane and to provide us with the information we require within the specified timeframe.

The services requested by the Customer will be provided within the timeframe agreed by Musthane following receipt of the relevant signed purchase order and the advance payment due.

Estimated delivery times are not guaranteed and Musthane will not be liable to the Customer for any service delivery delay of up to 12 months.

In the event of a delay of more than 12 months, the Customer may ask to terminate the order, in which case Musthane will refund the advance payments made.

Musthane must not be held liable under any circumstances if a service is delayed or suspended for a reason attributable to the Customer or in the event of force majeure.

The services will be provided at the location indicated by Musthane upon acceptance of the relevant order.

The Customer agrees to provide Musthane with such information and documentation as we require in order to provide the services.

The services provided will be deemed to be the services ordered (in terms of volume and quality) unless the Customer expressly issues a reservation or makes a complaint upon receipt of the services.

The Customer will have a period of seven days from delivery of the services in which to issue reservations or make a complaint in writing to Musthane and to provide relevant supporting documents.

Any complaint that is not made on the above terms and within the above timeframe will not be validly accepted.

10. Musthane’s liability for the services provided

A liability claim may only be made against Musthane in relation to the services we provide if proof of a fault or wrongdoing is provided, in which case our liability will be limited to the direct loss suffered, to the exclusion of any kind of indirect loss.

Furthermore, the Customer will be solely liable for any damage or loss that arises as a result of incorrect or incomplete information or information not provided in time. If the Customer does not provide an exhaustive and appropriate response within the timeframe indicated by Musthane (if applicable), we may suspend some or all of the services and must not be held liable for any direct or indirect damage or loss that the Customer may suffer as a result.

In order to assert their rights, the Customer must notify Musthane in writing of any defects within seven days of their coming to light, failing which they may not take any action in respect thereof.

In any case, in the event that Musthane is held liable, our warranty will be limited to twenty per cent (20%) of the amount excluding VAT paid by the Customer for the services.

11. Intellectual property rights and know-how

Musthane remains the proprietor of all intellectual property rights in and to the studies, drawings, designs, models, prototypes, etc. carried out and prepared by us (including at the Customer’s request) with a view to delivering services and products to the Customer.

The Customer therefore agrees not to reproduce or use the said studies, drawings, designs, models, prototypes, etc. without the express prior written consent of Musthane, in return for which we may request a fee.

As stated in clause 8 above, the above products are protected by intellectual property rights, copyright, know-how and expertise.

12. Confidentiality

Any and all diagrams, plans, technical data, devices, equipment and/or information provided or disclosed by Musthane will be deemed confidential information owned exclusively by us.

All the information, prototypes, samples, chemical formulations and know-how provided or disclosed by Musthane are the exclusive intellectual property of Musthane and must be treated as secret and confidential. Furthermore, the Customer agrees not to file an enveloppe Soleau[1] or apply for a patent or other intellectual property right using information provided by the seller.

The Customer agrees to only provide Musthane with information (drawings, technical data, characteristics, etc.) that is owned by the Customer or which the Customer has been authorised to disclose by the relevant owners.

All the information, documents, data and elements provided by Musthane and the Customer in connection with the fulfilment of an order are presumed to be confidential, including all the information relating to our know-how, methods and experience, whether such information, documents and data are provided in writing, verbally or by any other means, and regardless of the form and medium in which they are provided.

The non-disclosure obligation is to be understood as an unconditional prohibition on disclosing the aforementioned information, documents, data and elements other than to the permanent or non-permanent staff members, service providers and sub-contractors whose services are required to fulfil an order.

Each Party warrants that its permanent and non-permanent staff members, service providers, sub-contractors and third parties generally to whom the information must be disclosed fulfil this non-disclosure obligation, if necessary by entering into a non-disclosure agreement.

Musthane and the Customer agree:

– to protect the confidential information in the same way as they would their own confidential information;

– not to use the confidential information for any purpose other than to fulfil the contract;

– to ensure that the confidential information is not copied, reproduced or duplicated, in whole or in part, unless such copies, reproductions or duplications relate directly to the performance of these terms and conditions;

– to take appropriate measures, including technical measures (access permission, etc.), to protect the confidential information, retain a record of access to such information and ensure that appropriate measures are taken in relation to portable equipment (restricted access, encryption, remote erasure, etc.);

– not to delete the information on confidentiality from the various elements and documents provided, whether originals or copies; and

– to provide their staff members, particularly those who have access to the confidential information, documents, data and elements, with training on security and confidentiality rules.

The Parties agree to comply with this non-disclosure obligation for the term of these terms and conditions and for one (1) year after the date of expiry hereof.

Any breach of the obligations contained in this clause will constitute gross misconduct (faute lourde).

13. Invoicing

An invoice will be prepared for and issued with each product or service provided.

14. Payment

14.1. Payment terms

Unless otherwise agreed in writing, orders must be paid for when they are accepted by Musthane, by bank transfer, direct debit or cheque in euros.

Unless otherwise agreed, payment must be made on the following terms:

• payment upon order.

Musthane does not offer a discount for cash payments or for payments made before the date stated in these general terms and conditions of sale.

14.2. Late or non-payment

In the event of late payment, Musthane may suspend all pending orders, without prejudice to any other form of action.

Failure to pay on time will automatically result in all monies outstanding falling due immediately, without notice, simply due to the expiry of the payment deadline. Furthermore, the Customer will be charged default interest at 10 percentage points above the European Central Bank refinancing rate, which will be due the day after the payment due date stated on the invoice, without prejudice to our right to suspend the services until payment is made in full.

Furthermore, the Customer will be liable to pay a fixed debt collection charge of €40.

In the event of non-payment, the sale may be automatically terminated at Musthane’s discretion if a formal notice to pay remains without effect for 48 hours. Musthane may also submit an urgent court application to have the products returned to us, without prejudice to any other damages. Musthane will also cancel the services ordered by the Customer on the same terms.

The order in progress will be terminated along with any previous orders for which payment is outstanding, whether the orders have been delivered or are pending delivery and whether the order amounts are outstanding or not. If payment is made by commercial paper and the paper is not returned, it will be deemed to have been rejected and a payment default will be deemed to have occurred. Similarly, if payment is due in instalments, the non-payment of a single instalment will result in the entire debt falling due, without notice.

Upon termination of an order, all the confidential information and reproductions thereof, and all documents, equipment, tools, etc. provided by Musthane to the Customer must be returned to us immediately at our request.

In all of the above scenarios, the monies outstanding for other deliveries or for any other reason will fall due immediately if Musthane does not opt to terminate the corresponding orders.

Payments may not be suspended or set off under any circumstances without Musthane’s prior written consent.

Any partial payment will be allocated first to pay off the unsecured portion of the debt, followed by the amounts outstanding for the longest period of time.

If we are obliged to issue legal proceedings in order to obtain payment, the Customer will be liable to pay us a fixed and irreducible penalty of 20% of the invoice amount, subject to a minimum of €2,000, without the need to serve a formal notice and without prejudice to any damages.

14.3. Payment guarantee demand

Pending the fulfilment of an order or contract, Musthane reserves the right to request such payment guarantees as we consider necessary.

If Musthane is not provided with such guarantees, the effectiveness of which will be determined solely by us, we reserve the right to unconditionally cancel any outstanding product or service.

In the event of any dispute, including a dispute concerning the guarantees granted or accepted, the Customer may not extend, suspend or modify the agreed payment schedule.

15. Risks

Transport, haulage, rail, road, air and water carriage services as well as the corresponding handling operations are carried out under the best possible conditions on behalf of our customers, at their risk. The Customer must bear the associated risks, even if a sale is agreed with free shipping, as soon as the product(s) leave(s) Musthane’s warehouse or factory.

Goods are therefore transported at the Customer’s risk, and it is the Customer’s responsibility to report any damaged, lost or missing product to the carriers responsible or to take action against them.

16. Retention of title

In accordance with Articles 2367 to 2372 of the French Civil Code and Article L 624-16 of the French Commercial Code, Musthane retains ownership of the products delivered until the full price thereof has been paid in principal and related charges, even if we grant additional time in which to pay.

The Customer is not permitted to resell Musthane’s products without our express prior consent.

If the Customer is the subject of compulsory administration or liquidation proceedings, Musthane reserves the right to reclaim any unpaid goods in the context of the insolvency proceedings.

Notwithstanding this clause, the buyer is solely responsible for bearing the risks (if any) associated with the products upon delivery.

17. Force majeure

No liability claim may be made against Musthane in the event of the non-fulfilment or delayed fulfilment of any of our obligations under these general terms and conditions of sale due to a force majeure event.

Accordingly, in accordance with Article 1218 of the French Civil Code, force majeure under contract law means an event beyond the control of the obligor, which could not have been reasonably foreseen upon entering into in the contract, the effects of which could not have been avoided by appropriate measures and which prevents the obligor from fulfilling its obligation.

18. Personal data

In accordance with Articles 12 and 13 of European Regulation 2016/679 of 27 April 2016 (the ‘GDPR’) on the protection of personal data and the Loi Informatique et Libertés (French Data Protection Act), as amended, please be advised that Musthane, as Data Controller, collects data to manage customer records and business relationships, for monitoring, canvassing and customer loyalty operations, to prepare business statistics, manage customers’ opinions about our products, services and content, manage non-payments and the collection of debts, launch promotions, invoice customers, reply to questions and process customer complaints.

The Customer’s data will be used strictly by our Sales, Marketing, Customer accounting and other authorised departments and will be retained for the above purposes, for the duration of their business relationship with Musthane and for a subsequent period that must not exceed the statutory limitation period (under general law) of five years from the date on which our relationship with the Customer ends at their request.

Under our data protection policy, Musthane agrees to protect the Customer’s data against attacks. In accordance with Articles 15 to 22 of the GDPR, our customers and prospects may ask to access, rectify or delete their personal data at any time, free of charge, by contacting our data protection officer at rgpd@musthane.com or by writing to us at 53 Rue de la République, 59780 Willems, France.

In the absence of a satisfactory response within thirty (30) days or if their rights are infringed, anyone may file a complaint with the CNIL (French Data Protection Authority).

Our customers and prospects may also object to the processing of their personal data on the basis of a legitimate reason. Musthane’s privacy policy is available here: https://www.musthane.com/privacy-policy/

19. Governing law

It is expressly agreed that any order placed in accordance with these general terms and conditions of sale and service will be governed by French law.

20. Jurisdiction – Disputes

Musthane and the Customer agree to meet within 30 days of receipt of a registered letter (with acknowledgement of receipt) sent by either Party in order to jointly resolve any dispute that may arise in the performance of this contract.

This amicable resolution process must be carried out prior to any legal action between the Parties. Any court proceedings initiated in breach of this clause will be declared inadmissible.

However, if Musthane and the Customer fail to agree a settlement or solution within 30 days, the dispute will be referred to the court named below.

The Commercial Court of Lille Métropole will have exclusive jurisdiction to hear and decide any dispute or disagreement concerning the formation or fulfilment of an order that is not amicably resolved within one (1) month.

This clause shall apply even in the event of summary proceedings, a supplemental application, multiple defendants or third-party proceedings, regardless of the payment method and terms, without any jurisdiction clauses contained in buyers’ documents precluding the enforcement of this clause. The buyer unconditionally and unreservedly accepts this clause prescribing the competent court.

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[1] Translator’s note: an ‘enveloppe Soleau’ allows individuals to establish proof of the existence of their intellectual property or creative work at a specific point in time without having to go through the formal process of registering a patent, trademark or copyright.

Esta traducción se da a título indicativo, sólo la versión francesa es auténtica