TERMS AND CONDITIONS
PRELIMINARY ARTICLE - PRESENTATION OF THE SAS EQUISENSE
The SAS EQUISENSE, hereafter called "EQUISENSE" is a French simplified limited company with a capital of thirty-two thousand eleven (32.011,00) Euros, whose headquarters is located in Lille (59000), Euratechnologies, 165 avenue de Bretagne, registered on the French Registre du Commerce et des Sociétés de Lille Métropole under the number 813.684.669, represented by Mr. Benoit Blancher, its President.
Each time that they will be used by the present terms and conditions in capital letters, the following terms will have the meaning attributed hereafter no matter their gender or their number:
- BUYER: designates the natural person or legal entity having carried out one or several orders, of one or several PRODUCT(S) and/or SERVICE(S), followed by their effective payment, by means of the SITE and/or SERVICES provided by EQUISENSE.
- CONTRACT: designates the entirety constituted by the present stipulations, possibly completed by the order form and/or specific conditions produced by EQUISENSE, where necessary by their annexes and potential amendments with the exception of any other document, notably those that could be produced unilaterally by the BUYER before or after the formation of the contract.
- DATA: designates the entirety of the information and data of the BUYER or USER as well as the horse of which he or she has the control, generated by the implementation of SERVICES and/or PRODUCTS or processed by these, under the responsibility of the BUYER. This term includes PERSONAL DATA
- PERSONAL DATA: designates under the French Law Informatique et Liberté of January 6, 1978 (modified by the decree of November 4, 1991 and by the law of August 6, 2004 transposing the directive 95/46/CE), all information relating to an identified natural person or who can be identified, directly or indirectly, by reference to an identification number or to one or several elements that are specific to him or her.
- EQUISENSE: designates the SAS EQUISENSE mentioned in the preliminary article in the present terms and conditions.
- THE PARTIES: designates EQUISENSE and the BUYER as contractual partners to the present terms and conditions.
- PRODUCT(S): designates any physical object, notably the connected objects, sold by EQUISENSE.
- SERVICES: designates the entirety of applications, programs and software solutions, free and/or paid, corresponding to the BASIC SERVICES and/or SUBSEQUENT SERVICES available to the BUYER in execution of the present terms and conditions.
- BASIC SERVICES: designates the entirety of free services and software solutions that EQUISENSE agrees to supply to the BUYER in execution of the present terms and conditions.
- SUBSEQUENT SERVICES: designates the entirety of paid services and software solutions that EQUISENSE agrees to supply to the BUYER in execution of the present terms and conditions, following a purchase carried out by the BUYER on the SITE or the SERVICES.
- SITE: designates the website accessible at the following address: http://www.equisense.com
- USER: can designate the BUYER as an actual user - customer of the PRODUCT(S) and/or SERVICE(S) offered by EQUISENSE or any other recipient acting in the capacity of a customer, authorized by the BUYER to use the PRODUCTS and/or SERVICES in compliance with the stipulations of the Contract, under the responsibility of the BUYER.
2. APPLICATION CONDITIONS OF THE PRESENT TERMS AND CONDITIONS
The present terms and conditions determine the contractual conditions applicable to the supply of products and services offered by EQUISENSE to the BUYER.
The BUYER declares to have carefully read the present terms and conditions and to have accepted them without reserve before purchasing the Products and subscribing to the Services.
The present terms and conditions are applicable with the exception of any other general sales or buying conditions appearing on the propositions, offers, acknowledgement of receipt, invoices, correspondences, or forms brought forward by the BUYER. No modification of the present terms and conditions will be considered accepted by EQUISENSE without prior expressed and written agreement on its behalf.
The present CONTRACT has the purpose of defining the conditions in which EQUISENSE provides the BUYER the PRODUCTS and SERVICES and the conditions in which the BUYER or the USER can access them.
The present CONTRACT is applicable to the entirety of the means and actions enabling:
- the presentation of an offer of Services or the sale of Product(s) to the BUYER provided by EQUISENSE
- the acceptance of this offer by means of the conclusion of the CONTRACT and its execution.
4. CARRYING OUT THE ORDER & PAYMENT
A description of the PRODUCTS and SERVICES offered by EQUISENSE is available to the BUYER on the SITE and/or SERVICES.
The BUYER is therefore reminded that EQUISENSE is only bound by the present Terms and Conditions, the descriptions, characteristics, presentation of features, and price on the mediums produced and directly presented by EQUISENSE.
It is up to the BUYER to verify the compatibility of the PRODUCT(S) and SERVICE(S) as they are described in the elements listed above with his or her own needs or the needs of those who are intended to use them.
The photographs and/or videos of the PRODUCTS or SERVICES are supplied as a guide and to be used for informational purposes only. Having no contractual value, these must not be the deciding factors for the BUYER’s consent to order PRODUCT(S) or SERVICE(S).
4.1. PRICES, FEES & TAXES
The present contract is concluded at the prices and conditions set out by EQUISENSE to the BUYER on the date of his or her order of PRODUCT(S), and/or at the time of his or her subscription to SERVICES.
The prices and terms and conditions presented by EQUISENSE can be modified at any time. Therefore, only the prices and terms and conditions presented to the BUYER at the moment that he or she places an order are applicable to him or her.
The prices of the SERVICES and of the PRODUCTS are always shown excluding any potential delivery or transport fees and do not include duty, taxes (including VAT when it is due) and fees of any nature to permit the delivery and the use by the BUYER of the PRODUCTS and/or SERVICES, the entirety of these fees, duty, and taxes are the responsibility of the BUYER, in order for EQUISENSE to receive a net sales price.
Depending on the place of connection of the BUYER, the prices may not indicate taxes. EQUISENSE is not obliged to inform the BUYER of the taxes, sales tax, duty, or other services in effect in the country to which the PRODUCTS and/or SERVICES are delivered or in which they will be used by the BUYER. He or she is required to acquire information from the relevant authorities.
Consequently, any tax not indicated during the order process remains payable by the BUYER, in view of the applicable legislation and the responsibility of the BUYER.
Prices are shown in euros. They may thus be shown to the BUYER in a currency that does not correspond to the currency used in the country in which the BUYER resides. The BUYER must inform him or herself of the fees and exchange rates applicable at the time he or she places the order, notably in respect to the means of payment that he or she wishes to use and which is offered by the site.
The potential delivery and transport fees are mentioned before confirming the order and are billed in addition unless otherwise stated at this time by EQUISENSE.
This indication can take the shape of, including but not limited to, a discount coupon, a gift card, or a special offer.
The BUYER will be able to look at the details of his or her cart by clicking on the icon "Cart". He or she may then include any discount coupons and gift cards that he or she has available, in accordance to the terms and conditions of these coupons and gift cards, in order for the indicated total price to take them into account.
4.2. NECESSARY INFORMATION FOR THE ORDER AND THE DELIVERY
To carry out an order for PRODUCT(S) and/or SERVICE(S), the BUYER may choose:
- to connect to his or her personal account previously created on the SITE and/or SERVICES
- to create a personal account on the SITE and/or SERVICES
- Carry out the order without creating a personal account
In order to allow for successful order placement and delivery, the BUYER agrees and guarantees to only communicate true, complete, and up-to-date information and notably his or her:
- Last name
- First name
- Email address
- Complete mailing address
- Telephone number
And, if necessary, information relating to the recipient of the order, if he or she is different from the BUYER, and only after this third party recipient has given his or her consent to receive the order and authorizes the communication to EQUISENSE of PERSONAL DATA concerning him or her.
The goal being to allow EQUISENSE to have the necessary information to establish the invoice of the order placed by the BUYER, to identify the latter, and to carry out the delivery according to the terms detailed in article 5.2 of the present terms and conditions.
The BUYER, once his or her cart is complete and his or her identification made, will see offered, the choice for different delivery methods, invoiced at the price indicated for the entirety of the PRODUCTS and SERVICES that make up his or her cart.
Unless otherwise expressly indicated, discount coupons and gift cards do not apply to the delivery fees.
A summary of the information relative to the order, its contents, and its chosen delivery method is available to the BUYER in order to allow him or her to verify the details.
This summary will additionally include the price of the order, the shipment rate chosen by the BUYER, the total indicating the price to effectively pay within the framework of the order. It is brought to the attention of the BUYER that this price does not include custom fees and may not include the entirety of taxes that he or she may potentially be required to pay in accordance with the applicable legislation.
The BUYER must click on "Pay" in order to confirm and finalize his or her order. An order number is then communicated to him or her.
As long as he or she has not clicked on this button, the BUYER retains the possibility to make changes, modify the information relating to the order, its contents, and delivery method (notably the billing and/or delivery address and the delivery method).
The order confirmation leads to the conclusion of a contract between the BUYER & EQUISENSE. Through this contract, the BUYER declares and acknowledges that he or she accepts without reservation:
- the offer presented by EQUISENSE on the SITE and/or SERVICES
- the present Terms and Conditions
- unless otherwise expressly specified, the immediate payment of the order in its entirety to EQUISENSE.
EQUISENSE will then send the BUYER, as soon as possible, an email to the address indicated during the order process, confirming receipt of the order, the acceptance, and the payment of the order by the BUYER. A second email will be sent to him or her allowing access to shipment tracking.
4.4. PAYMENT OBLIGATION & COMBATING FRAUD
The BUYER declares and acknowledges, once the order is finalized, to be held to an obligation to pay with regard to EQUISENSE. The absence of any payment prevents any order forming.
Different payment methods are available for the BUYER to choose, in order to proceed to the payment of his or her order, these methods being indicated during the completion of the order.
It is notably possible to pay for his or her order with:
- debit and/or credit card. The transactions are carried out by means of payment platforms allowing for the collection of payments particularly with MasterCard, Visa Inc., Discover, and American Express cards.
- "Paypal" and "Stripe" services. It may be asked, however, that the BUYER have a personal account.
Once a choice has been made, the BUYER will be invited to complete a form allowing to identify the chosen payment method.
The offered payment methods are provided and carried out by third party companies. Consequently, EQUISENSE never has access to the BUYER's banking data.
In order to prevent any fraud, EQUISENSE has implemented order verification procedures allowing to block and, if necessary, cancel an order in the event that fraud has been detected. EQUISENSE will then inform the BUYER by email to the address he or she indicated. If this cancellation is erroneous, the BUYER must contact EQUISENSE customer service using the contact form available on the SITE.
In order to establish and retain a copy of the elements allowing the conclusion of the contract, EQUISENSE stores the communications, order forms, and invoices on its servers.
The BUYER has the possibility to access the entirety of the elements concerning him or her through his or her personal account.
5. CARRYING OUT DELIVERY
The BUYER or the third party that he or she would have designated in order to receive the delivery is required to observe certain precautions when it comes to the delivery, notably:
- his or her presence or that of a third party designated by him or her, at the address indicated during the finalization of the order during the delivery hours of the carrier in charge of delivery if these hours were indicated by EQUISENSE, or failing that, his or her diligence in the collection of the order at the indicated collection point after the attempted delivery by the person or carrier in charge of delivery,
- proceed, as soon as the delivery has been received, to the verification of the delivered PRODUCT(S) and to immediately notify, if necessary, by an email to the following address firstname.lastname@example.org, of any anomaly or deterioration of the PRODUCT(S) in the order so as to inform EQUISENSE of them.
5.2. DELIVERY METHODS & TRANSFER OF RISK
Unless noted or expressly agreed otherwise, EQUISENSE agrees to deliver the ordered PRODUCTS within thirty (30) business days after the conclusion of the contract and the payment of the order.
The delivery is carried out by the transfer of physical possession or control of the PRODUCT to the BUYER or the third party that he or she has designated for this.
The delivery of the PRODUCTS will be presumed carried out from the moment that it will be:
- made to the address indicated by the BUYER during the finalization of the order, either to the BUYER, or to the third party he or she would have designated, or
- in the event of the absence of the BUYER or the third party designated by him or her at the indicated delivery address, made after the first delivery attempt by the person or carrier charged with delivery and after the deposit of the order at a collection point.
- made owing to the fact of an activation of SERVICES linked to an account.
The risks of loss or damage of the PRODUCT(S) will be transferred to the BUYER at the time of delivery, when the BUYER or the third party designated for this purpose (other than the carrier proposed by EQUISENSE), takes physical possession of the PRODUCT(S).
6. LATE & FAILED DELIVERY
6.1. FAILED DELIVERY
The BUYER may, without prejudice of the other rights which he or she possesses in his or her capacity as a customer and buyer, see him or herself claimed the fees necessary for a new delivery in the event of the return of an order on account of the impossibility to deliver that is not attributable to EQUISENSE or the carrier in charge of carrying out the delivery.
6.2. LATE DELIVERY & CANCELLATION
The BUYER may dissolve the contract if EQUISENSE does not proceed to deliver the order in the conditions mentioned below:
- within thirty (30) business days after the confirmation and payment of his or her order
- on the date indicated at the time of the order (more than thirty (30) business days after the confirmation and payment of his or her order).
The BUYER must, before the cancellation of the contract, enjoin EQUISENSE to carry out the delivery within an additional reasonable amount of time, the cancellation only being obtained once this time has passed and the delivery not being made.
The BUYER is required for this purpose to proceed by registered mail with demand for acknowledgement of receipt or in writing using a durable medium.
The contract will be considered as cancelled when the registered mail or writing informing of this cancellation is received by EQUISENSE unless the order was delivered in the meantime.
Notwithstanding the aforementioned, the BUYER retains the possibility to immediately cancel the contract in the event of non compliance with the period indicated above; when compliance with the period constitutes for him or her an essential condition of the contract, resulting in a demand expressly formulated before the conclusion of the contract or the circumstances surrounding the conclusion.
EQUISENSE agrees to reimburse the total price paid during the order process within fourteen (14) business days following the date on which the contract was revoked.
7. WITHDRAWAL OPTION
7.1. RIGHT OF WITHDRAWAL FOR THE PRODUCTS
In compliance with the Law, EQUISENSE accords to the BUYER, when he or she qualifies as a consumer under the meaning of French law, a right of withdrawal which can be exercised by simple demand using the form appearing below, or by formulating a simple demand by email to the address email@example.com. This right of withdrawal has a total duration of thirty (30) days starting:
- on the order date of the PRODUCT(S)
- upon receiving the PRODUCT(S) as far as pre-orders are concerned
The aforementioned duration of 30 (thirty) days includes the duration of legal withdrawal of 14 days imposed by the French Consumer Code and does not add on to the latter.
I/we (*) am/are (*) notifying by the present document my/our (*) withdrawal of the contract for the sale of the good (*)/for the service provision (*) below:
Ordered on (*)/received on (*):
Name of customer(s):
Address of customer(s):
Signature(s) of customer(s) (only in the event of notification on paper of this present form)
(*) Cross out as appropriate.
Address this letter by registered mail with acknowledgement of receipt.
During this period of thirty (30) days, the BUYER therefore has the possibility to revoke his or her agreement without having to provide any reason.
Any PRODUCT not bought by means of the SITE or of EQUISENSE SERVICES cannot benefit from the present option to withdrawal.
7.2. RIGHT OF WITHDRAWAL FOR SERVICES AND SUBSCRIPTIONS
If the BUYER's order is for a subscription relating to a SERVICE, the BUYER acknowledges to have expressly asked EQUISENSE that this SERVICE be carried out as soon as possible.
As a consequence of this, the BUYER is not able to benefit from his or her right to withdrawal if the SERVICE has been fully executed before the statutory time limit of withdrawal, in accordance with article L.121-21-8 of the French Consumer Code.
By signing up for a subscription, the BUYER completes only one order that obliges him or her to pay the entire sum related to the duration of his or her subscription.
Without prejudice to the rights that the Law guarantees to the BUYER, the present withdrawal option will not be applicable, in accordance with article L.121-21-8 of the French Consumer Code:
- For orders of digital content not supplied on a tangible medium of which the execution started after the prior and express agreement of the BUYER and an express renouncement of his or her right of withdrawal,
- When the BUYER has unsealed and used a PRODUCT and or its accessories in such a way that their return is not possible for hygienic reasons.
When the BUYER does not qualify as the consumer under the meaning of the Law, the present withdrawal option will no longer be applicable:
- For online services,
- When the BUYER cannot send back the PRODUCTS and its accessories in their original packaging.
Moreover, EQUISENSE will not have to comply with the BUYER's right of withdrawal, in accordance with article L.121-21-3 of the FRENCH Consumer Code:
- In the event of a use not conforming to the normal use of the PRODUCT provoking its depreciation,
- In the event that the returned PRODUCT does not correspond to the object of the present withdrawal or in the event of restitution beyond the statutory time limit of fourteen days following the communication by the BUYER of his or her decision to withdraw, unless EQUISENSE proposed to the BUYER to collect these goods itself.
8. MODIFICATION OF THE TERMS AND CONDITIONS
Any modification of the present terms and conditions will be conditional on prior written information and on any durable medium and the express acceptance by the BUYER who has the option to cancel the contract at any time.
These modifications will therefore only be able to come into effect at the time in which a new contractual period starts owing to automatic renewal, and preceded by express acceptance of these modifications by the BUYER or by a new order, posterior to these modifications coming into effect and expressly accepted by the BUYER at the time of the conclusion of the contract.
9. PROVISIONS SPECIFIC TO PRE-ORDER OFFERS
EQUISENSE will on occasion be brought to allow the BUYER to order certain PRODUCTS and/or SERVICES in advance of their release date. By these means, EQUISENSE wishes to allow the BUYER to be among the first to order EQUISENSE PRODUCTS and SERVICES.
When EQUISENSE allows the BUYER to pre-order a PRODUCT and/or SERVICE, EQUISENSE commits to sending it to the BUYER as a priority, except if EQUISENSE does not succeed in debiting the price by means of the payment method that the BUYER has chosen.
By signing up for a pre-order, the BUYER authorizes EQUISENSE to debit the price of the PRODUCT and/or SERVICE from his or her account.
If it appears that EQUISENSE can no longer debit the price by means of the payment method that the BUYER has chosen, EQUISENSE will keep the PRODUCT and/or SERVICE to the side for the BUYER, for a time period that EQUISENSE will indicate to the latter in emails informing him or her of this situation.
By failing to proceed to an effective payment in the time indicated in the emails informing the BUYER of this situation, EQUISENSE will be obliged to cancel this pre-order. The BUYER will thus only be able to order the PRODUCT and/or SERVICE on the release date or by means of another pre-order offer.
By carrying out a pre-order, the BUYER benefits from and comes under the entirety of the rights and obligations included in the present terms and conditions.
10. DISPOSITIONS SPECIFIC TO OFFERS WITH A SUBSCRIPTION
Certain SUBSEQUENT SERVICES can be offered to the BUYER by means of a subscription which commits him or her, where necessary, for a determined period of time, specified in the order, and obliges him or her to pay the sum relating to the duration of the subscription.
The BUYER declares and acknowledges, in the event of a subscription to a SUBSEQUENT SERVICE, to have expressly asked that this SERVICE be executed as soon as possible, and consequently is not able to benefit from his or her right of withdrawal if the service has been fully executed.
In virtue of the present terms and conditions, the contract for a subscription to one or several SERVICE(S) is concluded for an initial contractual period of 12 months.
In order for the BUYER not to lose inopportunely the benefits of the subscription to which he or she signed up, his or her subscription will automatically be renewed for the same duration as the initial subscription after the expiration of the initial contractual period.
This automatic renewal will be invoiced at the price applicable the day of the subscription renewal of which the BUYER will have received prior information and, by him or her failing to terminate the contract, signified on the SITE or a SERVICE, at least 30 days before the expiration of the contractual period, previously notified by EQUISENSE, and with no cancellation penalty and no right to compensation.
However, it remains possible for the BUYER at the end of the initial contractual period to cancel this subscription at any time and without notice. Nevertheless, for subscriptions concerning a SUBSEQUENT SERVICE for a given period, it will be considered that any month started must be paid.
The BUYER will be notified at the earliest 3 months and at the latest 1 month, by email sent to the email address that he or she supplied at the time of the initial subscription, of the expiration of the initial contractual period and of the automatic renewal. He or she will be able to communicate his or her wish not to benefit from this automatic renewal at this time.
11. AFTER-SALES SERVICE
EQUISENSE offers the BUYER an after-sales service that he or she can contact by means of an online form or by an email to the following address: firstname.lastname@example.org
The BUYER declares and guarantees to have taken note that, including but not limited to, browsing the SITE, the creation of a personal account, the identification, the fact to have placed an order allows EQUISENSE to obtain certain personal DATA.
The collection of DATA and its use in accordance with the present terms and conditions is subject to the BUYER's consent.
The processing of stored DATA in accordance with the present terms and conditions was subject to a French CNIL (Commission Nationale Informatique et Libertés - the French Data Protection Authority) declaration number 1923841.
In compliance with the French Informatique et Libertés Law of January 6, 1978 modified, the BUYER benefits from a right of access and rectification of the information concerning him or her at any time by addressing email@example.com.
The BUYER will notably be able to have access at any time to the written materials relating to any electronic order of an amount higher than one hundred twenty (120) euros stored by EQUISENSE for a duration of ten years from the delivery/execution of the service, in accordance with article L 134-2 of the French Consumer Code.
The BUYER will also be able to, for legitimate reasons, be opposed to data processing concerning him or her.
Within the framework of the present article 12, the term DATA includes Sensitive Data outlined in article 8 of the French law number 78-17 modified called "Informatique et liberté", and Personal Data.
12.1. OWNERSHIP OF DATA
The BUYER is the only holder of rights of the DATA processed as part of the SERVICES.
The BUYER grants, as may be necessary to EQUISENSE and its possible subcontractors and assignees a non exclusive and international license, free and transferable allowing it to host, to cache, to copy, and to display the aforementioned DATA solely for the execution of SERVICES and exclusively in association or on the occasion of these.
The present license will automatically expire at the end of this present Contract, unless it is necessary to continue to host the DATA and its processing, notably as a part of recovery operations, or to respond to potential legal obligations for data storage.
The BUYER declares and guarantees that he or she has all the necessary authorizations for the use of DATA as part of the SERVICES and that he or she can freely grant license to, as in the aforementioned terms to EQUISENSE, its subcontractors, and its assignees.
The BUYER additionally declares and guarantees that by creating, installing, or downloading the DATA as a part of the SERVICES, he or she does not exceed any right that would have been possibly granted to him or her for all or a part of the DATA and that he or she is not breaching the rights of a third party.
The BUYER agrees to compensate EQUISENSE for any monetary consequences that EQUISENSE may be led to support on account of negligence of the BUYER in respect to the aforementioned guarantees concerning DATA.
12.2. DATA ACCESS
The BUYER is informed and accepts that EQUISENSE can access his or her DATA and transmit it upon the demand of an administrative or judicial authority authorized to access DATA.
In such an event, unless the aforesaid demand prevents it, EQUISENSE will make sure to inform the BUYER without delay of the existence of the demand and the DATA that was transmitted.
12.3. ACCESSIBILITY AND SECURITY OF DATA AND PERSONAL DATA
The BUYER is solely responsible for the creation, the selection, the design, and the use of DATA by the USER as a part of the SERVICES. He or she is also solely responsible for the collection and processing of Personal Data and of sensitive data by the USER.
EQUISENSE will by no means be responsible for the violation by the BUYER and/or the USER of his or her legal or contractual obligations in respect to Personal Data or potentially Sensitive Data.
When the legislation under which the BUYER is subjected demands the receipt of prior authorization of the people whose Personal Data is processed, or that the aforesaid legislation requires the person called upon to process this Personal Data to adhere to obligations, it falls solely to the BUYER, and under his or her sole responsibility, to comply with the applicable laws and to obtain the possible prior authorizations.
When the DATA transfer is not through a network controlled by EQUISENSE, the BUYER acknowledges that EQUISENSE has no control over the DATA transfer via the public telecommunication networks used by the BUYER to access SERVICES and notably the internet.
The BUYER acknowledges and accepts that EQUISENSE cannot guarantee the confidentiality of DATA during a transfer over the aforementioned public networks. Consequently, EQUISENSE will not be able to, in any event, see its responsibility engaged particularly in the event of DATA misappropriation, capture, corruption, or any other event susceptible to affect these, arising at the occasion of its transfer over public telecommunication networks.
13.1. GUARANTEES APPLICABLE TO MATERIALS SOLD BY EQUISENSE
EQUISENSE guarantees that the material supplied to the BUYER is free of all defects, in accordance with articles 1641 and following of the French Civil Code. In the event of an occurrence of a hidden defect, the BUYER will inform EQUISENSE of it within the 30 (thirty) days following the discovery of the defect, which includes a flaw in the material making it unsuitable for its use and not susceptible to be detected by the BUYER before its use.
A design defect is not a hidden defect and the BUYER is considered to have received all the technical information relating to said material.
If the hidden defect is present, EQUISENSE will proceed in the 30 (thirty) days following the information, at the choice of the BUYER, if he or she qualifies as the consumer under the meaning of the law, in the replacement and/or repair of the material or the defective parts in accordance with article 1644 of the French Civil Code, without the BUYER being able to claim damages, for any reason whatsoever.
EQUISENSE guarantees the material for a duration of two years from the date of receipt by the BUYER against any manufacturing or operational defect.
If a defect is present, EQUISENSE will proceed within 30 (thirty) days, at the choice of the BUYER if he or she qualifies as the consumer under the meaning of the law, in the replacement and/or repair of the material or the defective parts in accordance with article 1644 of the French Civil Code, without the BUYER being able to claim damages, for any reason whatsoever, and subject to the cost conditions provided by article L. 211-9 of the French Consumer Code. The BUYER, if he or she qualifies as the consumer under the meaning of the law, is exempt from having to prove the existence of the lack of conformity of the good during the six months following the delivery of the good. This time period is brought to twenty-four months in regard to products delivered from March 18, 2016.
The legal warranty of conformity applies independently of the commercial warranty offered by the seller.
EQUISENSE draws the BUYER's attention to the fact that malfunctions from falls and/or crushing of the sensors are expressly excluded from the present warranty.
EQUISENSE's responsibility will also not be able to be sought for any deteriorations and damages originating from the normal wear and tear or from causes outside of the material's intrinsic qualities, such as those resulting from an abnormal use or owing to the BUYER, to the animal of which he, she, or the actual USER has the control or of his or her employees: loading, shocks, falling or incorrect operation, insufficient protection against humidity, heat, frost, effect of power surges and transport atmosphere, non-compliant handling or assembly, when these were carried out by the BUYER or third party.
The batteries are not covered under the warranty.
13.2. GUARANTEE APPLICABLE TO SERVICES
EQUISENSE guarantees that it has all the intellectual property rights allowing to conclude this present contract and in this capacity, it guarantees that the SERVICES supplied in the execution of this present Contract does not breach the rights of a third party and does not constitute a counterfeit of an existing work.
EQUISENSE does not make any other express or implicit guarantee relating to the SERVICES, notably including any implicit guarantee of the marketable quality or compatibility of the SERVICE to a particular objective. EQUISENSE does not guarantee the SERVICES's results and is only held to a best endeavors obligation towards the BUYER.
It is not guaranteed that the SERVICES' features satisfy the demands of the BUYER.
The BUYER acknowledges that he or she is informed that a SERVICE can contain errors and that all errors are not economically rectifiable or that it is not always necessary to correct them. Consequently, EQUISENSE does not guarantee that the entirety of the SERVICES's faults or errors will be corrected.
EQUISENSE will not, in any event, be able to be held responsible for direct or indirect damages endured by the BUYER, which could arise owing to or at the occasion of the execution of the present Contract and of its results. By indirect damages, one notably means, included but not limited to this list, the loss of earnings or profits, opportunity loss, commercial damages, the consequences of complaints or claims against the BUYER, notwithstanding the fact that EQUISENSE would have quickly warned of the eventuality of their occurrence.
In any case, EQUISENSE's responsibility, in the event of damages happening to the BUYER, for any reason and regardless of the legal grounds invoked or retained, any and all accumulated damages, will be expressly limited and will not in any case exceed the amount excluding tax collected by EQUISENSE over the contractual period currently executed by the present contract.
EQUISENSE's responsibility will not in any instance be sought after notably in the event:
- of the use of SERVICES in a way not intended or not expressly authorized in the user documentation and by the present Contract;
- of the modification of all or a part of the SERVICES or the information accessible via the SERVICES not carried out by EQUISENSE or by one of the Approved Providers designated by the latter;
- of the use of all or a part of the SERVICES when EQUISENSE, following a problem or for any other reason, has recommended to suspend the usage;
- of a use of the SERVICES in an environment or according to a configuration not respecting EQUISENSE's technical prerequisites, or linked with programs or third party DATA not expressly supported by EQUISENSE;
- of the loss of the BUYER's DATA following an intervention of EQUISENSE or a third party designated by the BUYER or by EQUISENSE, when the BUYER would not have taken the precaution to save his or her DATA prior to this intervention when this was asked of him or her beforehand;
- of the occurrence of any damage that would result from a mistake or an oversight of the BUYER, or that he or she could have avoided by calling on advice from EQUISENSE;
- of a use linked to the Services of programs not supplied or supported by EQUISENSE and susceptible to affect the SERVICES or the BUYER's DATA.
15. ACCORDANCE WITH LAWS AND REGULATIONS
EQUISENSE will comply with legal and regulatory obligations, which are applicable to it in its capacity as a service provider and in accordance with the law applicable to the contract. EQUISENSE is not bound to assume the legal and administrative obligations of the BUYER, including those related to the SERVICES supplied as a part of the Contract. It is therefore up to the BUYER to ensure respect for the laws and regulations concerning him or her, without the possibility of seeking out the responsibility of EQUISENSE.
The BUYER, for his or her part, also agrees to comply with the laws in effect to which he or she is subjected, either owing to his or her nationality, or owing to his or her geographical location. He or she will notably make sure to respect the applicable provisions relating to the content of the DATA (French Informatique et Libertés law) so that no unlawful processing may be carried out by EQUISENSE.
16. MISCELLANEOUS PROVISIONS
In the hypothesis where one or several clauses would come to be declared null by a court decision or would prove to be impossible to implement, the validity of the other provisions will not be affected by the nullity and the parties agree to negotiate a replacement provision in good faith.
The fact for one party to not demand the application of any provision of the present contract or to tolerate the non-compliance temporarily or permanently, will in no instance be able to be interpreted as a renunciation by this party to carry out the rights that he or she possesses in accordance with the present terms and conditions.
The fact for one party to tolerate the non-compliance or an incomplete execution of the contract or more generally to tolerate any act, abstention, or omission of the other party non-compliant with the provisions of the present contract will not be able to confer any right to the party who benefits from such a tolerance.
The present terms and conditions express the entirety of the parties' agreement and replace any anterior agreement, written or oral, explicit and implicit. It establishes the will of the concerned parties.
The parties acknowledge that they act as independent contracting parties. The present contract cannot lead to creating a company or association of any form between them.
EQUISENSE reserves the possibility to cede all or a part of the rights and obligations resulting from the present contract to a company or to a third party.
17. APPLICABLE LAW AND ASSIGNMENT OF JURISDICTION
The present contract is exclusively subject to French law.
The parties agree to search for an amicable solution to any disagreement which may arise from the interpretation or from the execution of the Contract. The BUYER, if he or she qualifies as the consumer under the law, agrees, in the event of a disagreement, to directly present a complaint to EQUISENSE beforehand.
If the parties do not manage to obtain an amicable solution or through mediation, any litigation relating notably to the formation, the validity, the interpretation, the execution or breach of the present contract and, more generally, to the relationship binding the parties, comes under the exclusive competence of the jurisdiction of French Courts.