Terms and conditions
1. APPLICATION AND INTERPRETATION
These general terms and conditions alone govern all contractual relations between CEFALY Technology SPRL (RUE LOUIS PLESCIA, 34 4100 SERAING, BCE n°870.578.661, hereafter referred to as "CEFALY") and the purchaser. The general or special conditions of the purchaser are not enforceable with respect to CEFALY. Conclusion of any contract between the parties shall automatically mean acceptance of these general terms and conditions. Only the special conditions specified in the contract or agreed in writing between the parties may depart from them.
Depending on the context and unless otherwise stated, (i) the term "purchaser" in these general conditions shall be interpreted as also meaning any prospect, buyer, importer, distributor, licensee or any party entering into an agreement with CEFALY; (ii) "consumer": any customer purchasing a product for purely private purposes, ie excluding any professional nature was it partial (iii) the term "contract" as offer, quote, purchase order, sales contract, delivery, license agreement, distribution agreement, or any other contract between the parties; (iv) the term "product(s)" as any medical or cosmetic device, equipment, tool, product, item, packaging, box and other accessories manufactured and/or supplied by CEFALY. These terms shall be interpreted as being either plural or singular.
2. OFFER, ORDER AND CONFIRMATION
Any offer of CEFALY is made without obligation and has a validity period of maximum 40 days from the date of the document, unless a different deadline has been specified (in particular within the framework of promotion, etc.). Any specification or data contained in product listings, brochures, price lists and other documents is provided for informational purposes only. Product specifications and prices may be changed at any time without prior notice.
All orders made in writing or orally shall be confirmed by CEFALY in writing (letter, fax or mail). No order will be registered without complete references of the purchaser (company name, address, phone number, fax number, V.A.T. number, delivery address, name of a contact person).
3. PRICE, PAYMENT AND BILLING
Except in the case of sales to consumers, for which prices are inclusive of VAT, prices are computed EXW (ex works - EXW - Incoterm CCI 2000) excluding packaging, VAT or any other tax, duties and fees and any cost that are not specifically mentioned in the contract.
Unless stipulated otherwise in the formation of the contract, payments must be made in euros by IBAN and / or BIC / SWIFT wire transfers to the number indicated on the invoice, payable within 30 days from the date of the invoice.
In case of non-payment (total or partial, including a single deadline or invoice), CEFALY reserves the right to suspend its own obligations until full payment of all sums due, or even to resolve the contract , while keeping the partial payments paid by the purchaser to CEFALY as compensation, without prejudice to the right to reimbursement of costs and to compensation for any actual, direct or indirect damage resulting from a delay of payment suffered by CEFALY, its other customers or by a third party.
In addition, CEFALY will also be entitled to claim late payment interest and an indemnity, in case of late payment, computed as follows:
- vis-à-vis consumers: after formal notice remained unsuccessful for 15 days, the party at fault will be liable to the other party for interest calculated on the basis of the legal rate and an indemnity of 10% of the amounts due, with a minimum of 50 €.
- With respect to other purchasers: If the purchaser does not pay, in the expected terms, the invoices addressed to him, he will be liable as of right and without formal notice, a late interest of 1 % per month and an indemnity of 10% of the amounts due, with a minimum of EUR 250 by default of payment, without prejudice to any damages that may be claimed from the purchaser.
Title of the product(s) shall pass from CEFALY to the purchaser once the purchaser has paid the price in full, although the product(s) may have been already delivered. The purchaser shall not dispose of, nor transform, nor sell, nor use them as caution, to pledge them or to burden them, nor transfer the product(s) to a third party as long as all sums due have not been paid in full to CEFALY.
Except for sales to consumers and / or otherwise agreed by the parties, the products are considered as delivered and received in the warehouses of CEFALY in Bastogne (EXW - CCI 2000).
CEFALY will make available to the purchaser the products within the indicated deadlines. These deadlines are however purely indicative. CEFALY can only be held liable if the delay is significant and is directly and exclusively attributable to a serious and intentional fault on the part of CEFALY. The purchaser has no right to refuse the products or to demand compensatory compensation or dissolution of the contract for delay in delivery that could not be considered unreasonable.
Towards a consumer, unless a different delivery time is mentioned when ordering, the product is delivered within 30 days of the conclusion of the contract.
In the event that the purchaser refuses or delays loading or receiving the product(s), it will be liable for the payment of the price, according to the terms and conditions initially stipulated in the contract, and for any costs caused by this refusal or delay, including the costs of storage or transportation of products.
CEFALY has the right to suspend its own obligation to deliver the Products or to make them available, in the event there is any evidence of insolvency problem of the purchaser.
6. CONFORMITY AND WARRANTY
Unless otherwise agreed in the contract, the products are manufactured in compliance with the standards and regulations in force in Belgium and in the European Union and with the precise specifications stipulated in the contract or which have been the subject of a subsequent agreement written by the parties. The costs incurred by any change required by the purchaser, including compliance with the rules and legal provisions of the purchaser's country will be borne by the latter and may extend the delivery terms.
CEFALY reserves the right to make changes in specifications of the product(s) without prior notice or agreement as long as such changes do not affect the quality or performance of the product(s).
6.1 For consumers
In accordance with the legal requirements, new goods are guaranteed against any lack of conformity for a period of three years, from the time the goods are made available by CEFALY to the consumer. Here is meant by new goods, Cefaly device but not its disposable accessories that are the front or occipital electrodes that are intended for a limited number of uses. If the lack of conformity appears after a period of six months from the delivery of the goods, proof of the existence of the defect at the time of delivery must be proven by the consumer. A product is compliant if it meets the requirements of article 1649 ter of the Civil Code.
In case of lack of conformity, the Consumer shall have the right, unless it is impossible or disproportionate, to require CEFALY to repair the property or its replacement, all within a reasonable time, and without major costs or inconvenience. If the consumer is not entitled to repair or replacement of the goods, or if CEFALY has not carried out the repair or replacement within a reasonable time or without major inconvenience, the consumer has the right to demand an adequate reduction the price or, in the case of a serious defect, the termination of the contract, to the exclusion of any claim for additional damages. Account shall be taken of the aggravation of the damage resulting from the consumer's use of the goods after the moment when he found the lack of conformity (or should have noticed it).
This clause does not preclude the guarantee of hidden defects of the thing sold, as provided for in articles 1641 to 1649 of the Civil Code and in the specific provisions of the General Conditions.
6.2 For professional customers
As soon as the product(s) is/are ready and available, the purchaser shall inspect carefully and test the product(s) and shall immediately raise, in writing and within eight (8) calendar days following the availability of the product(s), any relevant and precise complaint in case of lack of conformity (notifying the number and date of the invoice). After such period of eight days, any apparent defect that were not notified to CEFALY will be considered as being definitively accepted by the purchaser. In any case, the purchaser may not refuse the product(s) for minor or futile reasons.
Hidden defects are covered by the warranty for a period of one year, from the time the goods are made available by CEFALY to the Purchaser. Beyond one year, the legal warranty applies if the hidden defect existed at the time of delivery, and provided that it renders the good unfit for the use for which it is intended or that it decreases substantially use.
In case of claim of the purchaser, the fulfillment of CEFALY's obligation of warranty shall be limited, at CEFALY's option, to replacing the defective parts or product(s) or to crediting the purchaser for these defective product(s) within a reasonable delay, without the purchaser being able to pretend to any other compensation.
The replacing parts or products will be sent back to the purchaser within a reasonable period of time.
In case the purchaser is a distributor, an importer or a recurrent buyer, the replacing product(s) will be delivered to the purchaser together with the next order of products made by him, except otherwise agreed by the parties.
CEFALY may suspend its obligation of warranty as long as the purchaser does not execute entirely its own obligations. Such suspension does not extend the initial warranty period.
7. USE AND HANDLING OF THE PRODUCTS
The purchaser acknowledges that the products:
- are medical devices that shall not be placed in another area, nor be used for a longer daily period of time, nor used for any other purposes than what is strictly specified in the manual;
- are fragile items that must be handled carefully and must be stored in their cover, in a dry and clean area.
8. DISCLAIMER OF LIABILITY
Products that are deliberately or negligently damaged (breakage, humidity, inadequate temperature, oxidation, liquid infiltration, electrical surge, fire, or other force majeure) and products with traces of opening (or repair and / or modifications made by a third party not approved by CEFALY) are excluded from the warranty; similarly, this warranty is not applicable to the extent that the damage results from wear, transport, misuse and / or non-compliance with the instructions contained in the user's manual.
If any liability is implied for whatever reason, CEFALY's liability shall be strictly limited to direct and foreseeable damages suffered by the purchaser, that are the exclusive and direct consequences of a gross and willful misconduct of CEFALY, excluding any loss of earnings, of profit, of savings or of clientele, increase of costs and expenses or any indirect damage and loss. Any compensation due by CEFALY shall ever exceed 30% of the value of the contract. Nevertheless, this provision does not limit mandatory CEFALY’s product liability imposed by the applicable law.
Regarding the website (www.cefaly.com / .be / etc., hereinafter the "Website"), the Client uses it at his own risk. CEFALY provides the Website as is, with all its imperfections and according to its availability. Customer acknowledges and agrees that the computer and telecommunications systems are not free from defects and that service interruptions may occur. The Customer remains solely responsible for the information he transmits via the Website and the consequences to be reserved. The Seller assumes no responsibility for the information provided by the Customer when creating an account and / or any other information encoded via the Website by the Customer. The Seller cannot guarantee that the transmission of data via the Website or other telecommunication systems is not monitored, recorded or distorted by third parties. The Seller also incurs no liability for the content of the sites of third parties to which it establishes a hyperlink, especially with regard to the protection of privacy. The Seller cannot be held responsible for errors that appear in the texts and photos used in the description of products and services sold.
9. FORCE MAJEURE
The parties are not liable for the delay or non-performance of any one of their contractual obligations when this non-performance is due to a force majeure event, beyond their control and when it cannot reasonably be expected of them to take it into consideration at the time of making the Contract or to prevent or overcome it, even when this event does not make the performance of the contract totally impossible but only substantially more difficult or more onerous.
In particular, the following events are considered as force majeure: fire, strike, accident, illness, natural disaster, destruction of installations or equipment, computer bugs, general lack of supplies or of means of transport, delay with or non-performance of the obligations of CEFALY's suppliers or sub-contractors.
The defaulting party in these circumstances must warn the other party of this as soon as possible, in writing. The obligations of the parties whose performance has become impossible due to a case of force majeure can be suspended provisionally or renegotiated. In the event that the force majeure lasts for more than 6 months, the contract will automatically be terminated, without indemnity, save for agreement to the contrary by the parties.
The purchaser shall keep strictly confidential and not disclose to any third party(ies) nor use any business or manufacturing information, technique, process, experimental work, trade secret or other confidential matter that was disclosed or shown by CEFALY or found in the product(s), except to the extent required to ensure the appropriate performance of the contract. This obligation shall survive cancellation, termination or nullity of the contract and shall continue to apply for an unlimited period of time.
Any documentation or technical information provided by CEFALY in any form including without limitation, information manuals, drawings, specifications, designs of the products or parts thereof, software, operating procedures shall remain the sole property of CEFALY.
11. PROCESSING OF PERSONAL DATA
As part of the management of its contracts, CEFALY may collect and process personal data. This is limited to what is necessary to carry out its commercial activities.
The following data is collected:
- Identification (for example: last name, first name)
- Contact (ex: postal and electronic address, telephone number)
- Interactions between you and our different services and supports
- A medical prescription required to buy a Cefaly device
CEFALY uses this data to:
- Execute the contract concluded (delivery of ordered products, rental management, after-sales services, ...)
- Send you information about the upgrade and promotional offers exclusively about our products
The controller is CEFALY. As part of their management, the data may nevertheless be transferred to third parties (for example transport companies), possibly outside the EU, which offer the necessary guarantees of security and confidentiality.
As a manufacturer of medical devices, we are required to carry out safety and efficacy studies on our products. Those post-market studies (retrospective clinical study, analysis of epidemiological data, cost-efficacy and safety studies) are carried out according to the principle of legitimate interest.
Anyone whose data is processed by CEFALY may request in writing to have access to it free of charge, for possible rectification, consultation, limitation of use. Anyone may also request that their data no longer be processed and / or deleted. In this case, however, CEFALY can not guarantee that it will be able to fulfill its obligations in accordance with the contract concluded (including delivery, for example).
CEFALY's complete policy regarding the processing of personal data can be viewed by following this link.
CEFALY reserves the right to terminate the contract or suspend its own obligations and to recuperate the products, anytime, without prior notice nor compensations for the purchaser, and without prejudice to the damages and possible interest for CEFALY if the amount of direct or indirect real damage suffered by CEFALY turns out to be greater, for the following reasons:
- in the event that the purhcaser fails in its contractual obligations or if it turns out that it will not execute or seriously risk not performing one of its obligations, and even before this obligation is due.
- in case of incapacity, bankruptcy, insolvency, protest, seizure, cessation of payment, request for suspension of payment, amicable or judicial concordat, or any other event indicative of financial difficulties in the purchaser.
- in the event of cessation by CEFALY of the exercise of his professional activity or substantial modification of this exercise.
- in the event of a force majeure event lasting more than 6 months.
In case of termination by the purchaser not caused by a gross and willful misconduct of CEFALY, all installments already paid by the purchaser shall be considered to be definitively acquired by CEFALY. The remaining installments shall be paid by the purchaser, but their amounts shall be reduced by the projected costs and expenses not incurred by CEFALY and reasonably evaluated by CEFALY, without prejudice to the right to compensation in the event that actual damage is more important for CEFALY.
13. NULLITY OF A CLAUSE
The invalidity or illegality of a clause will not affect the validity of the other clauses of the contract or of these general conditions. The parties undertake, in this case, to negotiate in good faith the conclusion of a new clause that would pursue the same objective or that would have the closest possible effects of the null clause, while respecting the legality and restoring the contractual balance.
14. APPLICABLE LAW AND COMPETENT JURISDICTION
The rights and obligations of the parties are subject exclusively to Belgian law.
Any dispute arising from the contract and these general conditions of sale will be settled according to the regulation of the C.E.P.A.N.I (Belgian Center of Arbitration and Mediation) by an arbitrator appointed in accordance with this regulation (www.cepani.be). The arbitration procedure will be held in Liège, in French if the client is French-speaking, or in English in other cases.
However, in the case where the purchaser is a consumer (non-professional), the procedure may be adapted according to the mandatory laws applicable to the contract protecting the rights of consumers.
Last update: July 17th, 2018