SCOPE
These Terms and Conditions of Sale (“T&Cs”) supersede any previous versions of terms and conditions of sales and shall apply to the sale of products (“Products”) by Somfy (Thailand) Co., Ltd (“Somfy”) (a company incorporated on 4th July 2011 under the laws of Thailand, whose registered n°0105554087751 and registered office is at 117/8 Panjit Tower 5th floor, Soi Sukhumvit 55, Sukhumvit Road, Klongton Nua, Wattana, Bangkok 10110 Thailand to professionals customers, hereinafter refer to as the “Customers”.
Any order placed with Somfy implies the full acceptation of these T&Cs by the Customer. These T&Cs shall prevail over any contrary conditions included in the Customer’s documents (general conditions of purchasing, orders…) which shall have no effect whatsoever unless a specific agreement has been concluded in writing between the Customer and Somfy. No failure of either Party to enforce all or any part of these T&Cs shall be interpreted as a waiver of all or any part of these T&Cs. Somfy reserves the right to modify these T&Cs at any time.
These T&C’s are systematically communicated to the Customer to enable the Customer to order Products from Somfy.
Somfy and Customer are hereinafter collectively referred to as the “Parties” and individually as the “Party”.
ORDERS
Any and all orders (“Order”) shall be placed by the Customer either in writing, duly signed and stamped by the Customer, or by an exchange of IT data enabling to identify the Customer, or by an Order online in the Somfy e-shop. Somfy reserves the right to refuse any orders received in any other form..
All Products sales are complete and final only after Somfy’s written and express approval of the Customer’s Order. Somfy shall then send to the Customer an acknowledgment of receipt of such Order to the Customer (“Acknowledgment of Receipt”, otherwise known as quotation), materially answering Customer’s requests. In case of discrepancy between the Order and the Acknowledgement of Receipt, the latter shall prevail. In particular, in case of events preventing the full continuity of Somfy activities (such as pandemic situation leading to shortages on raw materials and components), Somfy may suspend or propose partial delivery of Order. Whatever the case of discrepancy, the Customer may refuse such Acknowledgement of Receipt by sending a written cancellation of the Order within twenty-four (24) hours after receiving the Acknowledgement of Receipt. Otherwise, the sale shall be deemed concluded at the date and under the specific conditions contained in the Acknowledgement of Receipt.
The unavailability of a product due to a shortage of stock or the delay of a service will not give right to any compensation from Somfy.
To improve Customer’s satisfaction, Somfy requests the Customer to indicate as early as possible any project leading to high-volume Orders.
DELIVERY TIME
The delivery date ends on the day of availability of the Products ordered by the Customer in the premises of Somfy, to the Customer or to the carrier. The Products ordered by Customer will be delivered within a period described in the offer of dispatch in force for the Customer and communicated upon request. The delivery dates mentioned in the Acknowledgement of Receipt are given as an indication, unless otherwise agreed in writing by the Parties, based on supply and transport possibilities.
The logistic services and the transport costs in effect, can be communicated to the Customer on request to Somfy’s sales department.
A delay on delivery of less than six (6) weeks from the delivery date provided in the Acknowledgement of Receipt shall not give rise to any claim of liquidated damages or justify the Order’s cancellation.
In any case, Somfy shall not be liable for failure to perform its obligations in case of a force majeure event as defined in the Force Majeure clause set out below. Somfy shall not be held liable for any delay caused by Customer’s failure to perform its obligations.
FORCE MAJEURE
Neither Party shall be liable in event of partial or failure in performance of any obligation under the T&Cs as a result of any occurrence or contingency beyond its reasonable control which prevent Parties from performing their obligations and for the duration and within the limit of the effects of said cases and circumstances on said obligations. The occurrence of any event described hereunder shall authorize Somfy to suspend related Orders ipso jure or to postpone its execution, without any indemnity, cost or damages for Somfy.
A force majeure event is notably: war, act of terrorism, strikes, pandemics, epidemics, infectious diseases, quarantines, or other viral outbreaks, disruption of transportation, shortage of energy, water, raw materials or disruption of Somfy’s suppliers, capacity constraints, acts or omission of any government, natural disaster, accidents or any event leading to the unemployment of all or a part of Somfy’s premises and any event beyond the reasonable control of the Parties. The Party affected by a force majeure event as described above shall informed the other Party of its impossibility to perform its obligations.
It is clarified here that the occurrence of any event described above shall authorize Somfy to suspend related Orders ipso jure or to postpone its execution, without any indemnity, cost or damages for Somfy.
If a Force Majeure continues, or is reasonably expected to continue, for a period of three (3) consecutive months, the Party affected shall be entitled to cancel all or any part of the impacted orders previously confirmed , without any liability of the other Party.
TRANSPORT AND DELIVERY
The shipments are carried out by Somfy by any means of transport, taking into consideration the price/performance ratio, except if the Customer organizes his own shipments. Somfy shall bear the transportation costs for all Orders to or over THB35,000(Thai baht thirty-five thousand ) exclusive of tax and delivered to one single destination. Should the Customer requests delivery to different addresses, Somfy reserves the right to invoice the surcharges exclusive of tax, for each extra address. For any other Order, the transport costs shall be invoiced depending on the weight of the Products shipped. In this case, the sales department can transmit the prices list for the transport costs, on request. There shall be no transport costs for after-sales Products.
The Products are delivered FCA (Incoterms® 2010) Somfy’s factory/warehouses, unless otherwise specified in writing between Somfy and the Customer. Notwithstanding the conditions specified in the Acknowledgement of Receipt, the Products are always shipped at the risk of the Customer.
The Customer is responsible for inspecting the Products upon delivery. In the event of shortage, damage, loss, theft, or any other defect, it is the Customer responsibility to inform the carrier by registered letter with acknowledgement of receipt, within three (3) days from delivery, unless inapplicable pursuant to a mandatory provision of an International convention on transport of goods. A copy of such letter shall be sent to Somfy within the same timeframe. In case of any other conspicuous defects or noncompliance of the Products the Customer shall have to inform Somfy, by registered letter with acknowledgement of receipt, within three (3) days of the delivery of the Products. No complaint or return of Products shall be taken into consideration, after three (3) days following delivery, except express consent from Somfy.
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RISK TRANSFER
The risk for loss or damages to the Products shall pass to the Customer when delivery of the Products has been made to the carrier. In case the Product is not delivered by carrier, the risk for loss or damages to the Products shall pass to the Customer upon delivery at Somfy’s premises.
The Customer undertakes to obtain and maintain proper insurance contract from a creditworthy insurance company covering any damages of the Products.
RETURNS
No return of Products shall be made unless expressly authorized by Somfy. All request for return of Products shall contain a copy of the original purchasing invoice of the related Product. A return of Products can give rise to a credit note under the following conditions:.
1) Error of Somfy: when the Products delivered to the Customer are not in compliance with the Products listed in the Acknowledgement of Receipt (reference, quantity…) the Customer shall inform Somfy within three (3) working days from the delivery of the Product of such error. Somfy shall then retrieve the Product from the Customer’s premises. A credit note with a value of 100% of the net price invoiced, exclusive of tax, of the retrieved Product, shall be established by Somfy, provided that the conditions stipulated in 4, hereafter, are also met. Somfy will have to replace at his own expenses and in the shortest possible time the delivered Products which conspicuous defect or noncompliance defect have been duly proved by the Customer.
2) Error of Customer: A return shall be authorized by Somfy provided that a written request is sent by the Customer within five (5) working days from the receipt of the Product and as far as this return relates to an amount exceeding THB120,000 (Thai Baht one hundred twenty thousand) exclusive of tax, per reference. The Product shall be returned to Somfy at Customer’s expenses and risks and within five (5) working days from the date of acceptance by Somfy of such return.
Upon receipt of the Product, a credit note with a value of 100% of the net price invoiced, exclusive of tax, of the related Product shall be established by Somfy, provided that the conditions stipulated in 4, hereafter, are also met. However, Somfy shall not accept any return in case of repeated errors by the Customer.
3) Subject to Clause Risk Transfer above, Somfy may examine, on a case by case basis, the possibility of accepting returns for any other reasons than those provided in 1) and 2) hereunder, as long as the Product is standard and was manufactured within the previous year.
The Product shall be returned at Customer’s expenses and risks and within five (5) working days from the date of acceptance by Somfy of such return. Upon receipt of the Product, Somfy reserves the right to fix on a case by case basis the amount of the credit note to be established, provided that the conditions mentioned in 4, hereafter, are also met.
4) Any return is subject to the following cumulative conditions:
Somfy’s customer service has previously approved the return in writing.
a copy of the agreement of return and of the original purchasing invoice of the related Product are attached to the returned Product.
the Products are new and undamaged,
the Products are returned in their complete undamaged packaging (including leaflets, screws, cardboard and accessories),
the Products are not a sub-part of a product,
the return does not concern personalized Products or customized Products, except in the case of error of Somfy
The credit notes established by Somfy shall be valid for a period of one year from their issuance date. Beyond this period, credit notes shall be cancelled. Credit notes are non-refundable but deductible from new Order(s).
PRICES
Prices shall be those in force at the date on the day of the Product’s delivery. All prices are in THB [Thai Baht]. The prices are exclusive of all applicable value-added and other taxes and duties which will be payable by the Customer.
Somfy reserves the right to increase the price of the Products, by giving at least one (1) month notice to the Customer. Subject to this prior notice, for Products not yet shipped, Somfy may adjust Price, to take into account any significant increase in the cost of raw materials, metals, fuels or other production related costs.
Somfy will refuse systematical, unilateral and/or automatic deductions on the sales invoice by the Customer, if they haven’t been given previous written agreement by Somfy.
PAYMENT TERMS
Somfy shall invoice the Customer upon Product’s expedition / or to the terms specified on the Acknowledgement of Receipt. Subject to any mandatory applicable laws, payment terms may be agreed in writing by Somfy and the Customer. However, Somfy may request total payment prior to delivery.
Unless otherwise agreed in writing by the Parties, no discount shall be granted for early payments by Customer.
Somfy reserves the right to defer or terminate the special terms of payment granted to Customer in case of significant change in any of the criteria that justified the granted of the special terms, and for instance the degradation of the Customer’s financial situation, the withdrawal of guarantees, late payment, unfair behavior by the Customer towards Somfy.
In addition, in case of unfavorable opinion from Somfy’s credit insurance on the Customer, Somfy may require any additional protective measures it sees fit in order to ensure proper performance of the Customer’s obligations, such as, but not limited to, down payment or advanced payment of the Order. Payments made by Customer shall apply first to the oldest outstanding debt and then to the interest charges.
Sums owed by Somfy to the Customer shall not be withheld or compensated by Customer for any cause. In any case Somfy should not be required at more expensive payment condition than the one granted to the Customer by Somfy.
OUTSTANDING DEBT
In the event of default of payment on the due date by the Customer:
The Orders in progress and new Orders may be suspended at any time by Somfy. Somfy shall inform the Customer of said suspension. When the situation has been remedied by Customer, Somfy shall send an acknowledgement of receipt, according to the logistic offer in force available upon request to Somfy’s sales department.
Remaining payment, including invoices not yet due, shall become immediately payable without prior formal notification.
Late payment penalties shall apply on each payment due from the due date of payment as printed on the invoice. Interest charges shall be equal to five percent (5%) of the late payment amount exclusive of tax. They are payable immediately.
Interest charges shall be calculated as follows:
Interest charges = (rate x late payment amount exclusive of tax) x (number of overdue days / 365)
In addition, subject to prior notice, the Customer shall also be liable to pay to Somfy a sum equal to fifteen percent (15%) of the unpaid sum, in addition to the payment of legal interest rates and legal expenses, as an indemnity for the additional damages suffered by Somfy as a result of the Customer ‘s default.
The sale may be automatically cancelled at any time, after written notice by Somfy to the Customer stating that Somfy declares the wish to exercise this clause, and without any requirement to fill in any legal formalities.
All down payments made may be retained as damages for the cancellation of the sale and wear and tear of the Products;
The remaining payment, including invoices not yet due, shall become immediately payable without prior formal notification.
No unilateral deduction by the Customer shall be considered by Somfy. In such circumstances, the debt will be considered outstanding.
The Products delivered and unpaid shall be returned to Somfy at the Customer’s expenses and risks, and Somfy and/or its freight company, or employees shall be authorized to access, possibly with a judicial officer, Customer’s premises to draw up a complete inventory of the Products and to recover the unpaid Products.
The outstanding deliveries may be withheld until full payment of the said Products is made to Somfy.
RESERVATION OF OWNERSHIP
Somfy shall retain ownership of all Products until complete payment by the Customer is made to Somfy. Payment shall only be deemed effective when cashed in by Somfy. In the event of non-payment by the Customer of all or part of the price owed, Somfy shall repossess the Products delivered to the Customer at Customer’s expenses and risks. This repossession does not exclude further legal proceedings that Somfy may exercise.
Notwithstanding the retention of title, the Customer shall bear all risks of loss or damage to the Products upon delivery of the Products to the Customer.
In the frame of its current business, the Customer is allowed to resell the delivered Products before complete payment to Somfy, unless the Customer is subject to bankruptcy proceedings. The Customer shall not, however, bail, pledge, mortgage, grant a lien over, lease or assign the Products by any other way of security. If the Customer sold Products subject to the reservation of title, the Customer will undertake to inform Somfy of the identity of the subsequent buyers and Somfy can claim against the subsequent buyers the price of the Products unpaid by the Customer, without prejudice to any other right Somfy may be entitled to.
HARDSHIP
In case of an unforeseeable financial or material circumstances (the “Unforeseeable event”) related to the sale by Somfy of Products covered by the T&Cs, resulting in the execution of any of the Parties obligations to become excessively expensive, the Parties undertake to renegotiate in good faith the term of their agreement. During the negotiation, the Parties will suspend their respective obligations related to the sale of the Products concerned by the Unforeseeable event. If Parties fail to reach an agreement, they would have to mutually agree to terminate the agreement.
INFORMATION ON THE PRODUCT
The information and photos printed on catalogues, brochures and leaflets are given as an indication and are not binding upon Somfy and not contractual. They may be modified at any time. Somfy fulfills its obligation of information about the Products in the datasheets, configuration manuals and Product leaflets. It is under Customer’s responsibility to inform its own customers about the conditions of installation (including configuration), conditions of use of the Products and the safety measures to be taken, by adapting and completing the information provided by Somfy, to the customer’s Products and its type of customers.
Somfy reserves the right at any time to modify the Product as well as the related technical and commercial information and documentation.
Somfy informs the Client that Products may be delivered in multiple industrial packaging and that for this kind of packaging, only one paper notice is sent by Somfy for all Products. The Client shall request to Somfy additional notices, if needed. The Parties agree that Somfy has fulfilled its normative obligations regarding the provision of safety, installation and operating instructions. The Client undertakes to provide its customer with the ad hoc documentation necessary to comply with the standards and regulations in force.
CONFIDENTIALITY
As part of their commercial relationship, SOMFY may be required to provide the Customer with certain information relating to the Products, such as technical data sheets or customs codes.
The Customer undertakes to keep such information confidential. Documents, data and information of any nature whatsoever provided by SOMFY shall remain the property of SOMFY and may not be disclosed or used for purposes other than the performance of the Contract or the Order without the prior written consent of SOMFY. The Customer, its managers, employees, subcontractors and agents shall be bound to secrecy and confidentiality on all such information and data provided by SOMFY and on all matters not in the public domain relating to or arising from the Contract or the Order.
In case of doubt as to the confidential nature of any information, it is the Customer's responsibility to seek information from its usual SOMFY contact.
SOMFY reserves the right to require the Customer's employees or managers to whom SOMFY's information and data is disclosed to sign a written confidentiality undertaking.
WARRANTY AND AFTER SALES SERVICE
Somfy grants the Customer with a contractual warranty for the Products, in accordance with the warranty terms in force.
The contractual guarantee that Somfy proposes for the Products is annexed to the T&C’s. This express guarantee is exclusive of any other warranties, legal or not, including the legal liability for hidden defects or the suppliers and manufacturers civil liability. Somfy guarantees the Product against all defects of material or manufacturing acknowledged by Somfy during the entire contractual warranty period indicated in the warranty terms in force and in the conditions and limits of use set by Somfy in the Product leaflets or any other documentation or information intended for the Customers. This guarantee only includes the reparation or replacement (at Somfy’s option) of the Product acknowledged defective after inspection by Somfy, excluding compensation for any other prejudice whatsoever. Outside the scope of application of this contractual guarantee, Somfy shall provide an after-sales service for its Products, by quotation.
LIABILITY
Somfy shall under no circumstances be held liable or engaged in any way, if it is not demonstrated that the Products have been installed and used in respect of the instructions and limits of use indicated by Somfy, and in compliance with the existing standards and the state of the art, for motorizing or automating appropriate Products like blinds, roller blinds, shutter blinds, gates and garage doors. Neither Party shall be liable for any indirect damage suffered by the other Party, such as loss of turn over, loss of income loss of clients, loss of orders, any commercial disruption or loss of profit. Somfy shall indemnify the Customer only for duly proved direct damages.
Somfy's aggregate liability under the sale of the Products will not exceed an amount equivalent to the total amount of purchases paid by the Customer in the last six (6) months.
Either party shall perform its obligations under the Order(s) in compliance with the applicable laws.
ETHICS AND ANTI CORRUPTION
Either party shall perform its obligations in compliance with the applicable laws and regulations, and undertakes to respect anti-corruption and money laundering applicable laws, in particular the U.S. 1977, Foreign Corrupt Act (FCPA), the Organization for Economic Cooperation and Development’s Convention of 1997 on Bribery of Foreign Public Officials in International Business Transactions (OECD Anti-Bribery Convention), the 2017 French-Anticorruption Law (Sapin II Law) and any other applicable anticorruption laws. Especially, Client undertakes to comply with Somfy’s Ethic Charter and Code of Conduct available on COMMITMENT TO ETHICS AND COMBATING CORRUPTION (somfy-group.com) and to implement fair practices and to act, prevent and fight against all forms of corruption and not to do anything actively or passively that will constitute an act of anti-corruption. In this frame, Client expressly allows Somfy to perform any audit and agrees to respond in good faith to any related questionnaire. In case of proven act of corruption or breach by Client of these obligations, Somfy may suspend or terminate orders without notice or compensation and subject to any damages to which the Client may be entitled as a result of such breach.
EXPORT CONTROL
The importation and resale of the Products by the Customer are carried out under its sole liability and shall not in any way constitute a violation of the laws and regulations in force in the country of importation of the Products.
If Customer transfers products (hardware and/ or software and/ or technology as well as corresponding documentation, regardless of the mode of provision) delivered by Somfy to a third party, Customer shall comply with all applicable national and international (re-) export control regulations.
In any event of such transfer of products, Customer shall comply with the (re-) export control regulations of the European Union and of the United States of America.
Prior to any transfer of products provided by Somfy to a third party, Customer shall in particular check and guarantee by appropriate measures that:
(a) There will be no infringement of an embargo imposed by the European Union, by the United States of America and/ or by the United Nations by such transfer, by brokering of contracts concerning those products or by provision of other economic resources in connection with those products also considering the limitations of domestic business and prohibitions of by-passing those embargos;
(b) Such products are not intended for use in connection with armaments, nuclear technology or weapons, if and to the extent such use is subject to prohibition or authorization, unless required authorization is provided;
(c) The regulations of all applicable sanctioned party lists of the European Union and the United States of America concerning the trading with entities, persons and organizations listed therein are considered.
It is the Customer’s responsibility to bear all costs associated to make the Products, their accessories and packaging compliance with the importation country’s laws and regulation. The Customer is liable for the sales, marketing and distribution of the products in the country of importation which it undertakes to carry out in full compliance with the laws and regulations in force in that country. Under no circumstances will Somfy be liable for any failure or violation of the laws and regulations in force in the country of importation as a result of the importation and / or distribution and / or marketing of the products in that country. The Customer undertakes to indemnify Somfy, its subsidiaries and / or any other entity belonging to Somfy’s Group against all claims, convictions, penalties, losses and expenses resulting directly or indirectly from the violation or breach of the laws in force in the country of importation causing by the products, their introduction, distribution and marketing in that country.
WARNING ABOUT PRODUCTS FOR « PROFESSIONNALS »
SOMFY markets eight families of products: (1) connected solutions, (2) controls and automation, (3) security systems, (4) motors for sliding and swinging shutters, (5) motors for roller shutters, (6) solutions for external blinds, (7) motors for internal blinds and (8) solutions for home access.
Several of the above product families are intended exclusively for installation by professionals in the field of home automation and motorisation and, due to their technical nature, require specific and/or specialised knowledge to ensure that they meet the needs and constraints of the end user.
The Customer shall ensure that Products are sold to said professionals.
In the event of the resale to professionals who do not justify:
1.a distribution activity aimed at professionals
2.or installation activity
3.or supply and installation of an integrated product
The Customer is liable for lack of advice or information in the event of an improper and inadequate installation or assembly and guarantees Somfy against any user claim on this basis and Somfy reserves the right to suspend all new orders and/or terminate the commercial relation.
INTELLECTUAL PROPERTY
Somfy’s trademarks, logos or any other trade names or distinctive name used by Somfy shall remain Somfy’s property or their owners. Somfy retains all intellectual property rights (including industrial property and copyright) concerning the Products, their representation, designation, pictures and all technical documentations.
The Customer acknowledges that Somfy is exclusively responsible for all intellectual property rights relating to the Products, including "SOMFY" verbal and semi-figurative and figurative trademarks and all other industrial property rights and copyrights attached to the Products and that no rights of exploitation of those rights are conferred on it, other than the sole right to use the Products under the conditions covered herein.
The Customer expressly refrains from using the Products for any object other than the one for which they were designed.
Any other use of products, Somfy trademarks, logos or any domain names, trade names and more generally of any element belonging to Somfy (text, photography, visual element, etc.) constitutes infringement of rights and sanctioned as such in relation to the Intellectual property code unless authorized by Somfy.
Somfy will be able to give its prior and written consent regarding the use of its trademarks, logos and/or visuals for the purpose of carrying out operations by the Customer to promote the resale of Somfy Products. In this case, the Customer undertakes to respect Somfy's user charter and graphic charter and to make faithful and loyal reproductions of the marks, logos, and visuals transmitted by Somfy and not to create any risk of confusion between Somfy and one of them or several of its competitors.
Somfy provides its Customers on www.somfypro.fr an accessible image library with access codes and requiring, for download, validation of the terms of use as well as the two charters mentioned above.
Similarly, any use of visuals authorized by Somfy will have to use the word "copyright" and the name of the photographer as transmitted by Somfy, in a visible way.
More generally, the Customer undertakes not to infringe Somfy’s Intellectual Property rights in any way, and undertakes, among other things, not to damage Somfy's brand image, trademarks, domain names, range names, products or services used by and/or owned by Somfy.
The Customer shall refrain from using the Somfy name or any other registered Somfy trademarks, in whatever spelling, in any domain name registered by the Customer. The Customer agrees to transfer to Somfy or deactivate any domain names purchased prior to the release date of this T&Cs which use the Somfy name or any other registered Somfy trademark.
Customers who are aware of any infringement of the intellectual property rights held by Somfy must immediately inform Somfy in writing and provide any information in its possession. Within the limits permitted by law, Somfy will not be liable to the Customer and/or third parties for any claim set on intellectual property rights relating to the Products.
PROCESSING OF PERSONNAL DATA
Somfy may collect and process personal data provided by the Customer’s representative for the purpose of completing and performing the Product Order related to the commercial relationship between Somfy and the Customer and for compliance with applicable legal and regulatory obligations to which Somfy is subject.
Somfy is committed to ensuring high protection of its customers' personal data. For more information, the Customer is invited to consult Somfy's privacy policy on personal data, available on the somfy.com website.
MISCELLANEOUS
Nothing contained in these Terms will be construed as establishing or implying any partnership or joint venture between the Parties and nothing in these Terms shall be deemed to construe either of the Parties as the agent of the other.
LANGUAGE
These Terms and Conditions have been drafted in both Thai and in English. In case of discrepancy between the versions, the English version shall prevail.
The incidental invalidity of one or more provisions of these Terms and Conditions does not affect the validity of the other provisions.
APPLICABLE LAW, JURISDICTION
These Terms and Conditions and the relations between the Parties shall be construed, governed, interpreted and enforced exclusively in accordance with the Laws of Thailand. In case of any dispute arising out of, from or in connection with the performance of these Terms and Conditions and related Order(s) or agreement(s), the dispute shall be settled by the judiciary of Thailand.