GENERAL TERMS AND CONDITIONS OF SALE – Weenat Sensor
Version of 25 February 2022
These general terms and conditions of sale (hereinafter the “GTCSs”) apply in their entirety, comprised both of this preamble and of the clauses that follow it and have been agreed by firstly, the company WEENAT a simplified joint-stock company with a capital of 92,862.40 euros registered at the Nantes register of companies under number 803 450 287 and with headquarters located at 2, impasse Thérèse Bertrand-Fontaine 44300 Nantes – France (hereinafter “WEENAT”) and, secondly, the Client as defined in the Estimate.
In accordance with Article L441-1 of the Commercial Code, the GTCSs constitute the sole basis for commercial negotiations. It takes [sic] precedence over all general terms and conditions of purchase and all other documents in particular catalogues, prospectuses, advertisements, and leaflets.
WEENAT reserves the right not to apply certain clauses of the GTCSs in light of negotiations held with the Client, by drawing up specific conditions established in Estimates, agreements or addenda.
ARTICLE 1 – DEFINITIONS
In the GTCSs, and unless context clearly shows the opposite, the following terms beginning with a capital letter are defined as follows, it being understood that plural words may be understood as singular and vice versa.
API
The Application Programming Interface published and implemented by WEENAT or by Weather Measures managing a flow of Data between the Software and the Client’s information system such that the latter can receive Data.
Weenat App
The Weenat App published and implemented by WEENAT allowing the Client to have access to the Software, databases and Data. To do this, the Client must agree a subscription with WEENAT (cf. WeeNAT General Terms and Conditions of Use).
Estimate
A technical and financial proposal drawn up by WEENAT following receipt of a description by the Client of its needs.
The document has the value of specific conditions and may include in particular:
- details regarding Products purchased (type of Products, quantity, unit amount, total amount),
- procedures for delivery including the indicative period,
- procedures for installing Products,
- other potential details specific to the Client.
Data
All data captured by the Produces installed at the Client’s request and analyzed by the Software (analysis and information).
These Data fall into two categories: Raw Data or Enriched Data (see WeeNAT or the company Weather Measures General Terms and Conditions of Use.
Software
Computer software and algorithms published by WEENAT or the company Weather Measures. The Software includes the databases containing the Data.
Product
A Data Sensor designed, manufactured and sold by WEENAT and additional equipment sold by Weenat. The setup location for the Product is left to the Client’s full discretion, under its own responsibility.
Weather Measures
A SASU [simplified single-shareholder company] registered at the Clermont-Ferrand register of companies under number 810 653 949 and with head office located at 10, rue Jacques Mailhot, ZAC Les Gravanches, 63100 Clermont-Ferrand – France.
ARTICLE 2 – PURPOSE OF THE AGREEMENT
These GTCSs and the Estimate(s) (hereinafter referred to jointly as “the Agreement”) aim to specify the terms and conditions under which WEENAT is selling the Products to the Client.
Maintenance of the telecommunication network necessary for the proper functioning of the Product is included in the subscription for access to the Weenat App or the API. Without agreeing to this subscription service, the telecommunication network will not be maintained. In this case, the Client may freely agree to a subscription to a telecommunication network of its choice and at under its own responsibility.
Access to the Weenat App or to the API is governed by the General Terms and Conditions of Use for WEENAT or the company Weather Measures as defined in the Glossary, independently from the Agreement.
ARTICLE 3 – ESTIMATE
3.1 – Following the Client’s description of its needs, WEENAT shall present to the Client an Estimate at the earliest possible date, which shall include in particular all information relating to the list of Products and the indicative period for delivery.
3.2 – The Estimate signed by the Client – handwritten signature – and returned by any means – regular mail, fax or scan via email – to WEENAT has the value of an agreement with the Client and is considered to be the terms and conditions specific to the GTCSs. This Estimate signed according to the procedures described above expresses the Client’s consent irrevocably; it therefore may not be voided unless there is an express prior agreement with WEENAT. In this case, the Client shall compensate WEENAT for any resulting direct or indirect consequences. Furthermore, any deposit already paid shall remain with WEENAT.
3.3 – The Estimate is valid from its date of communication to the Client and for the duration stated on the Estimate. In the absence of a specific indication, the duration of the Estimate’s validity is 3 (three) months from the date of its transmission to the Client by WEENAT. Beyond this validity period and provided that the Client has not accepted it, WEENAT reserves the right to change all or part of the Estimate (rates, Products, specific conditions, etc.) or not to pursue the Estimate.
ARTICLE 4 – DELIVERY
4.1. – For each Estimate accepted, WEENAT shall in due course dispatch the Products as set out in the Estimate. The Client is informed and accepts that the Products will be delivered within the limits of available stocks.
In the case of an order for an unavailable Product, WEENAT informs the Client by email, as soon as it becomes aware of the unavailability, of the new period in which the Product(s) will be available.
Notwithstanding the above, WEENAT may not however be held liable for any delays attributable to the manufacturers of Product components or to the companies charged with dispatching them. In such cases, WEENAT shall inform the Client at the earliest possible date by email of any such potential delays of which it is aware.
A delay in Product delivery of less than six (six) [sic] calendar months does not constitute a sufficient reason to entail the termination of the order in question and/or the Agreement by the Client, as long as the delay is attributable to the manufacturers or companies charged with dispatching them or to the Client itself.
4.2. – The Client receives the delivery at the delivery address indicated by it on registering the accepted Estimate.
WEENAT reserves the right to refuse to deliver to certain places, in the case that the safety of the delivery is not ensured.
Delivery is carried out by a carrier selected according to the delivery area. The carrier shall deliver the order to the Client itself or to a third party, a natural person designated by the Client or to any authorized person representing the Client. Delivery is carried out against signature by the Client or by a designated or authorized third party, referred to on the delivery receipt and potentially on presentation of the necessary documents for identifying the Client or the designated addressee.
If it has not been possible to deliver the order to the Client during the first attempt, the Client must within 48 hours contact the carrier to agree a collection date for the order at the premises designated by the carrier.
4.3 – The transfer of ownership of the Products between WEENAT and the Client takes place on receipt by WEENAT of full payment for the Products by the Client.
WEENAT retains ownership of each Product sold until the actual payment of the full price including principal and accessories. Non-payment, even in part, may entail a claim for the Product by WEENAT.
In the case of the opening of proceedings for legal redress or for compulsory liquidation of the Client, signed Estimates in the course of performance shall be voided automatically, and WEENAT reserves the right to claim delivered Products for which payment has not been made.
4.4 – Products are conveyed at the risk of the Client who assumes the risk from the presentation by WEENAT of the Products to the carrier. It falls to the Client to check the state of the Products on their delivery.
In no circumstance may WEENAT be held liable for damage, loss, theft or destruction having occurred in transit. WEENAT commits to delivering the Products to the carrier in good condition and correctly packaged. It falls to the Client to check the conditions and the Products on delivery and, if applicable, to express reservations immediately in order to establish any liability on the carrier’s part. In the absence of clear and precise reservations stating the type of damage and the number of items concerned, the Products shall be deemed to have been delivered in good condition. Vague language such as “subject to […]” has no authority. The Client is obliged to confirm to the carrier the reservations expressed during delivery, within 48 hours of the delivery date by registered post with acknowledgement of receipt and to send a copy for information purposes to WEENAT.
4.5 – The Client shall carry out by its own means the installation of the Products in accordance with the information from WEENAT (installation manual, welcome booklet); if it is agreed in the Estimate, the information may be complemented by an installation diagram specific to the needs indicated previously by the Client to WEENAT.
Specific studies for optimizing the telecommunication network or installation assistance are subject to an offer in the Estimate. This work may be carried out only with the agreement of the Client to the Estimate concerned.
In the case of damage to the Products resulting from non-compliance with the previous information by the Client, the Client must bear the costs of replacing these Products.
4.6 – In the event of a change in the regulations dictating the replacement of the Products, the dismantling and replacement of the Products shall be at the Client’s expense. In the event that the Products are intended to be dispatched and installed in countries other than the that of territory indicated by the Client, it shall be incumbent on the Client to ensure the compliance of the Products with the regulations in force in these countries and with the customs clearance procedures; all expenses pertaining to these actions remain at the Client’s expense.
4.7 – Delivered Products are guaranteed under the conditions provided for below in the article “Assistance – Warranty – Technical Support”.
The replacement of the Products following a failure, breakage or obsolescence is at the Client’s expense.
ARTICLE 5 – LEGAL WARRANTY – CONTRACTUAL WARRANTY
5.1 – All Products sold are covered by the legal provisions for guaranteeing latent defects (Articles 1641 and following of the Civil Code). Faults or damage caused by natural wear and tear or by non-compliant usage, or by modifications not provided for or specified by WEENAT are excluded from the warranty.
It is recalled that the legal warranty does not apply when the damage is associated with a cause external to the Product (accident, impact, etc.) or actions by the Client such as non-compliance with standard usage of the Product.
5.2 – Each Product is covered by a contractual warranty offered for twenty-four (24) months from the date of delivery of the Product to the Client.
5.3 – The Client may agree to extend the contractual warranty, known as a warranty extension. Agreeing to this warranty extension service is possible only when initially purchasing the Product.
Warranty extension is an extension of twelve (12) months to the contractual warranty.
The total period of the contractual warranty may not exceed 36 months.
The contractual warranty includes spare parts and labor. Transit fees (including return) outside of mainland France are excluded from the warranty.
WEENAT reserves the right to establish several levels of warranty, some of which may exclude certain parts (wearing parts, probes, etc.).
5.4 – For any request for support under the legal or contractual warranty, the Client must send an email to the WEENAT after-sales service at the address support@weenat.com, clearly detailing the fault detected and the desire to claim the warranty.
Cases excluded from the warranty are: breakage, vandalism, loss, theft, faults or damage caused by natural wear and tear or non-compliant usage, modifications not provided for or specified by WEENAT, recalibration of wearing parts (relative humidity probes in particular).
The warranty applies only to the extent that the Client complies with:
- storage instructions: all sensors must be stored in their delivery packaging, the packaging must be away from the ground and in a well-ventilated area away from any humidity;
- instructions for installation and maintaining in working condition stated by WEENAT in the installation manual.
After remote diagnosis by the WEENAT after-sales service and the agreement of that after-sales service, the Product may be shipped by the Client to WEENAT at the earliest possible date. With the agreement of the WEENAT after-sales service, all transit fees associated with returning the Product may be borne by WEENAT. In cases where invoking the warranty is not considered justified, WEENAT reserves the right to request the repayment of transit fees and shall offer the Client a replacement for the Product. A new Estimate shall then be sent to the Client for checking and signature from it.
WEENAT may not be considered responsible for data arising from that Product, which have not been processed during the Product malfunction.
ARTICLE 6 – ASSISTANCE – TECHNICAL SUPPORT
WEENAT shall make available to the Client a support service accessible by email – support@weenat.com – and/or telephone and shall put in place the ways and means necessary to receive requests from the Client in a suitable manner: the availability and competence of staff responsible for support, their analysis and search for a solution and to act without undue delay.
Save for specific conditions described in the Estimate, the working days and hours of telephone support are expected to be Monday to Friday except for French public holidays, from 9 AM to 6 PM CET (Central European Time).
ARTICLE 7 – PRICE
The price of the Products is stated on the Estimate signed by the Client.
Unless stated otherwise, all prices are shown in Euros before tax (€ HT) to which the relevant tax is added (VAT).
If applicable, the relevant tax in the Client’s country, customs fees, import/export tax, transport/transit tax, etc. remain at the Client’s expense.
ARTICLE 8 – PAYMENT PROCEDURES
8.1 – Payment of the Products’ purchase amount must be made by the Client on receipt of the invoice. The Estimate may provide for payment of a deposit on signing the Estimate.
8.2 – In the case of agreeing to the working condition maintenance service (contractual warranty), a request shall be made of the Client for bank details and the signature of a direct debit authorization, the annual amount is debited on the anniversary date (initial delivery date of the Product) for the following year.
8.3 – In any event, the obligation to pay is fulfilled to the extent that the amount in euros is finally credited in favor of WEENAT. No discount shall be granted for advance payment.
8.4 – In the case of non-compliance with the payment periods set out above, strictly and without formal notice from WEENAT:
WEENAT may apply a rate of interest for delay of 15% per year – prorata temporis – dated from the first day of the delay; the Client’s contractual obligation to settle the overdue invoices remains unaffected;
WEENAT shall retain the right to demand the return of Products that have been delivered and not paid for, and to refuse any further deliveries. It is recalled that the transfer of ownership of the Products takes place on receipt by WEENAT of full payment for the Products;
WEENAT reserves the right to enact any due diligence in order to preserve its interests;
WEENAT may request the immediate payment of all remaining sums owing by the Client;
WEENAT shall invoice the Client for the minimal fixed compensation of 40 euros. This amount may be greater on justification of greater recovery costs.
Any disagreement concerning invoicing must be substantiated by sending a letter by registered post with return receipt requested, within ten (10) days of the invoice issuing date. Failing this action, the Client shall be deemed to have accepted it and considered in default in case of non-payment.
ARTICLE 9 – CLIENT OBLIGATIONS AND LIABILITY
The Client acknowledges that it is the sole party to have the best and most appropriate information concerning its business, its activities and its needs. For this reason, the Client commits to respect, from the beginning of the contractual relationship and throughout the performance of this agreement, its obligation to cooperate with WEENAT’s staff and in particular, if applicable, during requests for information on the part of WEENAT in particular in the case of malfunction.
In the case of a specific need for the Client, the latter shall transmit to WEENAT all technical information necessary for producing an Estimate, which must be accepted by the Client.
The Client is liable for the Products installed and acknowledges that is has been fully insured for this purpose.
The Client commits to using the Products exclusively for its personal needs. It is strictly forbidden for it to carry out purchases/resale outside of the distribution network put in place by WEENAT.
Taking into account the technology content of the Products, it is forbidden for it to sell them as part of second-hand product sales.
ARTICLE 10 – WEENAT’S OBLIGATIONS AND LIABILITY
WEENAT’s obligations under the Agreement are expressly recognized by the Client as being obligations of means. Thus, WEENAT shall commit to employ the best known and reasonable ways and means in respect of best practices, in keeping with the laws and regulations in force.
ARTICLE 11 – LIMITATION OF WEENAT’S LIABILITY
It is expressly agreed by the Parties that WEENAT’s liability, if the WEENAT was acknowledged to be at fault, does not extend to indirect loss in particular including operating losses, loss of earnings, commercial or financial loss, increase in general costs, potentially affecting the Client.
WEENAT may be held liable only when a fault has been shown that is attributable to WEENAT.
It may not be held liable in case of Force majeure as described below.
WEENAT shall not be held liable in the case of non-compliant use of the Products by the Client in particular Product upkeep or if it has failed in its obligation to cooperate as described above in the article “Client obligations and responsibility”.
ARTICLE 12 – INSURANCE
WEENAT holds civil liability insurance regarding its activity in developing hardware solutions.
The Client is liable for damages resulting from the installation and use of the Products and acknowledges that it has been fully insured for this purpose at a company known to be solvent. It shall supply WEENAT, on request, with proof of insurance. Any coverage shortfall shall be at the expense of the Client.
ARTICLE 13 – CONFIDENTIALITY
Each Party acknowledges that written and oral information clearly indicated as confidential and exchanged as part of implementing this Agreement must be kept strictly confidential by each, in particular taking into account the competitive sector in which each of the Parties operates.
Consequently, each Party commits to treat this information as strictly confidential and not to divulge those secrets and that information to any natural or legal person other than the other Party’s employees and strictly for the needs of performing this Agreement.
Save for prior agreement between them of an appropriate communication, the Parties commit in particular:
- Not to communicate to third parties comprehensive information regarding the Client’s specific needs such as plans, calculation elements, written documents, rates, specifications and documentation for the Products, any information relating to the Parties’ development strategy, and in general any document or information in relation to the offer, the GTCSs and/or Estimates;
- Not to use them for other offers requested or offered to third parties.
It is expressly set out by the Parties that breach of this clause shall give rise to the awarding of damages and interests in favor of the Party not at fault.
ARTICLE 14 – FORCE MAJEURE
Beyond the events habitually upheld by French case-law in the cases of force majeure, the Parties’ obligations shall be automatically suspended in the event of occurrences independent of their express will and impeding the normal performance of the Agreement, such as earthquakes, fires or flooding at premises where one or other of the Parties operates, storms, epidemics, interruption of transport facilities for any reason whatsoever, full or partial strikes outside of the organization, full or partial, regional, national or international interruption to telecommunications and full or partial, regional, national or international interruption to computer networks. Force majeure further includes, technical failure caused by malicious actions (e.g. attacks by hackers, denial of service, etc.).
The Party reporting the occurrence must without delay inform the other Party of its inability to perform the service and give proof of this to the latter. The suspension of obligations may not in any circumstance be a cause of liability for non-performance of the obligation in question, nor lead to the payment of damages and interests or penalties for lateness.
However, once the cause for the suspension of their mutual obligations disappears, the Parties shall use their best endeavors to resume as quickly as possible the normal performance of their contractual obligations.
In the event that the case of force majeure extends beyond a period of 3 (three) months, this Agreement may be terminated by registered post with acknowledgement of receipt, save for an agreement between the Parties.
ARTICLE 15 – MISCELLANEOUS PROVISIONS
15.1 – If any contractual document comprising the Agreement is translated, only the version in French shall be authentic.
15.2 – The Parties accept and acknowledge as valid proof able to be produced in court, any exchange by email, between them.
15.3 – The nullity of any clause whatsoever in the Agreement shall not affect the validity of the other clauses; the agreement shall proceed in the absence of the voided clause.
15.4 – Tolerance
The fact that either of the Parties does not claim that the other is in breach of any obligation whatsoever among those set out in this agreement may not be interpreted in future as a waiver of the possibility of a complaint regarding the application of the obligation in question.
ARTICLE 16 – SETTLEMENT OF DISPUTES
This Agreement is governed by French law.
Save in case of summary judgment or in case of emergency, all disputes regarding the Agreement, in particular arising from its signature, performance, interpretation, termination, or validity, must strictly be subject to an attempt towards amicable resolution by the Parties.
For this purpose, the Parties undertake to meet within 15 (fifteen) days of receipt (date on which the letter is first delivered by the Postal services), by one of the Parties, of the notification of this dispute by registered post with return receipt requested sent by the other Party.
In the absence of an amicable resolution to the dispute within 15 (fifteen) days of the meeting of the Parties in the conditions set out in the paragraph above, the dispute shall then be submitted to the relevant jurisdiction according to the procedures defined below.
Failing an amicable agreement, the Parties shall submit all disputes, even in the case of action to enforce a guarantee or of multiple defendants, to which this Agreement may give rise, and all this for any of its validity, its interpretation, its performance or its termination, to the Commercial Court at NANTES (44), save for cases where the dispute is in the jurisdiction of the Judicial Tribunal of RENNES in application of the applicable provisions of the Intellectual Property Code.