1 - General Principles
1.1. The present general terms and conditions of sale apply to products sold and/or services provided by Data Essential SARL (hereafter referred to as « DATA ESSENTIAL »).
1.2. The signature of our commercial proposal implies that you acknowledge having read our general terms and conditions of sale and that you accept them as such.
1.3. DATA ESSENTIAL’s general terms and conditions of sale constitute the law between the parties and apply to all DATA ESSENTIAL’s customers. They shall prevail over any clause to the contrary which DATA ESSENTIAL has not expressly accepted without constraint. In any event, all stipulations to the contrary made by DATA ESSENTIAL’s customers shall not be, under any circumstances, enforceable on DATA ESSENTIAL.
1.4. The fact that DATA ESSENTIAL, at any given moment, does not rely upon or enforce any particular provision in the present general terms and conditions of sale shall not be considered as a waiver of any of the said terms and conditions in the future.
1.5. No customer of DATA ESSENTIAL shall display or make use of any trademark, logo, document, project, research or any other intellectual property belonging to DATA ESSENTIAL without the express written and prior authorization of DATA ESSENTIAL for the sole purpose of promoting the resale of products commercialized by DATA ESSENTIAL under normal conditions as affecting its trade. DATA ESSENTIAL reserves the right to object to, prevent or claim compensation for any usage which it judges to be unfair competition or as constituting an act of free riding, or as contrary to its image or contrary to any rights that it may have granted or which may have been granted to it.
DATA ESSENTIAL undertakes to respect the confidentiality of the information to which it can have access to these benefits on occasion. It is prohibited in particular any communication written or verbal and any delivery of documents to third parties thereon. DATA ESSENTIAL undertakes not to provide any document issued by the customer to persons external to the project without the customer's written agreement. All documents produced as part of this service are the exclusive property of the customer and cannot be reused without their express agreement.
2 - Prices
2.1. Prices are ex-factory (Luxembourg). Invoicing occurs according to the prevailing rate on the day the products are shipped. Unless explicitly stated otherwise, all prices are quoted in Euros, exclusive of VAT.
3 - Sales Proposal and Orders
3.1. All sale proposals must be confirmed in writing (mail, email) by DATA ESSENTIAL to the customer, who has thirty (30) days to accept it in writing before it becomes void, except if stated otherwise on the sales proposal (sales order proposal). In case our proposal mentions a validity date different from the one mentioned in these general terms and conditions of sale, the considered and official validity date will be the one specified on our proposal. DATA ESSENTIAL will only be bound by any sale proposal after the customer accepted the sale proposal, which then becomes an order.
3.2. Orders addressed to DATA ESSENTIAL are only final after they have been accepted by DATA ESSENTIAL. Acceptance may result from shipping and invoicing of the ordered products and/or services.
3.3. Services product orders must be sent to DATA ESSENTIAL two (2) working days before the desired delivery date at the latest. In case of late orders, DATA ESSENTIAL can not guarantee that orders will be met on time.
3.4. Unless explicitly agreed otherwise in writing by DATA ESSENTIAL, prices stated in the sale proposal include packaging in accordance with DATA ESSENTIAL’s standards. Any additional packaging that may be requested by the customer or that is required by the shipping method can be invoiced extra by DATA ESSENTIAL.
3.5. Any order change concerning products and/or services, the delivery date or any other element of the order will have to be confirmed in writing and will only be final after prior approval from DATA ESSENTIAL. Any changes approved by DATA ESSENTIAL can entail changes in terms of price, delivery, specification and/or other changes.
3.6. Every order accepted by DATA ESSENTIAL and cancelled by the customer will entail the payment of cancellation fees, including in particular already incurred costs and commitments made by DATA ESSENTIAL. Cancellation fees are fixed to a minimum of 20% of the value of the services concerned by the cancellation.
3.7. DATA ESSENTIAL reserves the right to make deliveries in whole or in part without the exercise of that right giving rise to any penalty.
3.8. Collaboration: the customer guarantees that all the actions on their part that accompany directly, or through third parties, the work of DATA ESSENTIAL is provided free. The plans, means and personnel required to carry out the orders are made available free of charge. In some cases like malfunction, dismantling of equipment is required by DATA ESSENTIAL. It is up to the customer to ensure total control of the dismantling of their equipment as that of its reassembly, the only goal being, for DATA ESSENTIAL to be able to inspect different pieces of equipment considered. All associated costs are payable by the customer, all of these operations being placed under the authority and responsibility of the customer.
3.9. Delivery times are only given as a rough guide and without commitment. As a result, DATA ESSENTIAL is not responsible in case of delay in delivery and no penalty will be incurred by DATA ESSENTIAL in case of cancellation or delay in delivery. DATA ESSENTIAL cannot be held responsible for any damage caused by delays in delivery, whatever the reason.
3.10. Products will travel at the customer’s own risk as soon as they have been entrusted to the carrier. The customer will bear all the shipping costs and related costs, without consideration of the special conditions upon delivery.
3.11 Product maintenance is bonded to a support contract between the editor and the customer. DATA ESSENTIAL cannot be held responsible for the maintenance with the editor, unless explicitly agreed in the sale.
3.12 Any licenses purchased through DATA ESSENTIAL imply the implicit acceptance of the editor’s terms and conditions. In any case, DATA ESSENTIAL can not be deemed responsible for the wrong usage or any infringement of the editor licenses term and conditions.
4 - Payment Conditions
4.1 Invoices are payable, in full amount, within thirty (30) days after the date of invoice, except if stated otherwise on the invoice, at the address stated on them. In default of payment by the due date, the customer shall forfeit its right to price reductions, discounts, and rebates provided for under DATA ESSENTIAL’s rates.
4.2. Payments will have to be made by bank transfer.
4.3. Payments will be made in the currency stated on the invoice, with no reductions applied due to taxes, charges or any fees of a similar kind, whether fiscal or parafiscal, direct or indirect, and in particular including VAT and bank charges.
4.4. All invoicing errors must be reported in writing by the customer within ten (10) days after the date of invoice, in default of which no credit shall be granted.
4.5. Penalties shall be applicable as of right if the payment is not made by the due date. Any amounts remaining unpaid at the due date shall produce interest at a rate of 3,5% per month over the sanctionable period. DATA ESSENTIAL shall not be bound to give formal notice to the customer, which expressly exempts DATA ESSENTIAL from any such duty.
4.6. Any payment made after the payment date appearing on the invoice shall lead as of right to the following options open to DATA ESSENTIAL: - the application of late payment penalties, calculated by applying to the entire sum unpaid a rate as defined by the applicable law; - and/or invoicing to the customer the costs of follow- up, formal notice, collection, and more generally of all costs of any kind whatsoever related to the recovery of the sums due to DATA ESSENTIAL; - and/or in the event of default the immediate payability of all sums due to DATA ESSENTIAL even if not outstanding and the immediate return of all merchandise for which payment has not been made, at the customer’s own risk and charge (carriage, supervision, etc.); - and/or the cancellation of the sale, without prejudice to the application of the reservation of title clause below, of delivered but unpaid goods, the ownership of which has not been transferred to the customer; - and/or the right of DATA ESSENTIAL to suspend and/or cancel all sales in process and/or to claim a payment as a counter-reimbursement for future sales until the entire settlement of the situation and/or the offsetting of the sums due by means of any sums owing under whatever head with regard to the defaulting party. In the event of recovery by bailiff or judicial process, an indemnity amounting to 10% of the sums due shall be payable under a penalty clause.
4.7. DATA ESSENTIAL reserves the right to decide, with respect to each of its customers, the maximum sum of the supplier's credit outstanding, in accordance with financial information communicated to it.
4.8. In the event of a deterioration in the customer’s credit rating or in default of sufficient financial information, DATA ESSENTIAL reserves the right, even after a partial dispatch of an order, to require of the former whatever guarantees it judges to be useful for the satisfactory performance of undertakings made. A refusal to give satisfaction in that regard shall give DATA ESSENTIAL the right to require payment before dispatch of the goods and/or to cancel all or part of the order and thus to put a stop to any delivery.
4.9. DATA ESSENTIAL reserves the right to request advance payment before dispatch of the goods with respect to any order made by a customer who does not have an account with DATA ESSENTIAL.
5 - Ownership
5.1 Transfer of property of the good sold is subject to complete payment by the customer by the due date, payment being understood as the complete de facto encashment by DATA ESSENTIAL of the agreed price in terms of principal and interest and inclusive of all related fees.
5.2. In the event of resale of the goods by the customer before complete payment as defined in 5.1 above, the customer undertakes to settle the balance of the sum due with DATA ESSENTIAL forthwith or to inform the new purchasers of the said goods that they are subject to a reservation of title clause and to give DATA ESSENTIAL warning of the transfer so that the latter may retain its rights and if necessary exercise its right of title on the resale price paid by the purchaser.
5.3. The goods shall under no circumstances be used as a pledge or as any other type of security whatsoever, for the benefit of any person or organization whatsoever, unless that person or organization is DATA ESSENTIAL. In the event of any attachment or seizure or of any other intervention of a third party with respect to the goods, the customer shall be under an obligation to inform DATA ESSENTIAL forthwith, in order to enable the latter to object and to maintain its rights.
6 - Installation and Training
DATA ESSENTIAL can provide an installation service for the sold products, as well as a training service. These services can be ordered by the customer according to the stipulations of article 3 above and the details (place, date, schedules, etc.) will be included on the respective purchase order. These services will be invoiced by DATA ESSENTIAL at the prevailing rates at that moment.
7 - Force Majeure
DATA ESSENTIAL reserves the right to suspend or cancel the sale, either in whole or in part, in the event of force majeure, defined as any event liable to prevent, reduce, delay or render the manufacture or transport of the merchandise economically unprofitable, or to impede the normal functioning of the market, when its own liability cannot be imputed. The following are defined as examples of force majeure, although the list is not exclusive: measures taken by the civil or military authorities, fires, floods, epidemics, quarantine restrictions, wars, embargos, riots, strikes, transport delays, or any other circumstances which make it impossible for DATA ESSENTIAL, as a result of causes beyond its reasonable control, to obtain the necessary resources in engineering, staffing, materials or means of production from its normal suppliers. In the event of such a delay, the delivery date shall be put off so as to allow a reasonable period in compensation of the delay.
8 - Taxes and Other Levies
The customer shall pay for or reimburse DATA ESSENTIAL for all taxes, indirect taxes or levies of a similar kind, whether fiscal or parafiscal, direct or indirect, as well as all other particular levies imposed by regulatory requirements, including in particular VAT on services rendered and/or on the purchase, delivery or dispatch concerned.
9 - Warranties and Limitations of Liability
In spite of the care taken by DATA ESSENTIAL in the testing of its products and in the carrying out of orders, products may fail to comply or may fail quality standards. The DATA ESSENTIAL warranty is limited to that contracted or offered by the manufacturer and/or editor, who are alone liable for any damage caused by their products.
10 - Subcontracting
The contract binding DATA ESSENTIAL to the customer is an intuitu personae contract. DATA ESSENTIAL reserves the right to subcontract all or part of the planned services to this contract and will inform the customer. The customer will be able to refuse the subcontractor. In that case, DATA ESSENTIAL will suggest another subcontractor.
11 - Applicable Law and Jurisdiction
The present general terms and conditions of sale are governed by Luxembourg law. Any dispute that may arise in connection with the present general terms and conditions of sale shall be submitted to the courts of Luxembourg to whom the parties expressly grant exclusive jurisdiction, even in the event of multiplicity of defendants or proceedings against the guarantor and irrespective of the location where orders are delivered.
12 - GDPR and Data Protection
Personal data: any information relating to an identified or identifiable natural person (the "data subjects"); is deemed to be an "identifiable natural person" a natural person who can be identified, directly or indirectly, in particular by reference to an identifier, such as a name, an identification number, location data, an online identifier, or to one or more elements specific to their physical, physiological, genetic, psychic, economic, cultural or social identity.
Applicable legislation on the protection of personal data: in particular European Regulation (EU) n ° 2016/679 on data protection (the “GDPR”) and the law of August 1, 2018 on the organization of the National Commission for the protection of personal data and the general data protection regime.
Controller: the natural or legal person, public authority, service or another body which, alone or jointly with others, determines the purposes and means of the processing: Cyril Audenard (Mail: firstname.lastname@example.org).
Processor: the natural or legal person, public authority, service or other body which processes personal data on behalf of the controller.
Processing of personal data: any operation or set of operations carried out or not using automated processes and applied to data or sets of personal data, such as the collection, recording, organization, structuring, conservation, adaptation or modification, extraction, consultation, use, communication by transmission, dissemination or any other form of provision, reconciliation or interconnection, limitation, erasure or destruction.
12.2. General information
The Data Controller informs the Customer that he is processing Personal data securely and in accordance with Applicable Legislation on the protection of Personal Data.
In certain circumstances, the Data Controller's Processors who process Personal Data on behalf of the Data Controller may also act as Data Controller when these Personal Data processing meet their own needs and their own purposes.