GENERAL TERMS AND CONDITIONS OF SALE PHANTOM INTERNATIONAL
Effective date : 1st January, 2018
Article 1: Definitions
In the scope of the present general terms and conditions of sale, terms used hereafter have the following meanings, whether used in the singular or the plural form:
“Purchaser” : refers to the natural or legal person purchasing the Products either in the scope of its commercial activity, or outside said activity;
“General Terms and Conditions”: refers to the present general terms and conditions of sale governing the provision of the Products by Phantom International to the Purchaser in force at the time of the conclusion of the order;
“Parties”: means jointly Phantom International and the Purchaser;
“Phantom International”: refers to the company Phantom International, simplified joint stock company “société par actions simplifiée” with registered capital of 875 910payEuros, registered at the Register of Companies of Paris under number B 799 640 313 having its registered office located 40 rue des frères Boussac (35800), France,
“Products”: means either products commercialized by Phantom International, as displayed on the Website and/or in Phantom International’s catalogs at the date of the order and in particular the Flying Phantom boat and that has been subject to specific personalization upon request of the Purchaser such as in particular: choice of the hull’s color or choice of the hull’s custom graphics of boats offered; color of the gennaker…
“Website”: refers to the website of Phantom International available at www.phantom-international.com;
“Territory”: refers to the whole world.
Article 2: Scope – Enforceability
The General Terms and Conditions provide the sales conditions of the Products by Phantom International to the Purchasers. The General Terms and Conditions apply to any order of Products.
The General Terms and Conditions are systematically provided to the Purchasers in order for them to place an order.
CAUTION: NOTE TO THE PURCHASERS ANY ORDER IMPLIES EXPRESS, PRIOR, FULL AND COMPLETE ACCEPTANCE BY THE PURCHASER OF THE GENERAL TERMS AND CONDITIONS. BY PLACING AN ORDER, THE PURCHASER ACCEPTS THAT IT IS BOUND TO THE WHOLE GENERAL TERMS AND CONDITIONS AND THAT, AS APPLICABLE, GENERAL TERMS AND CONDITIONS SHALL PREVAIL OVER ITS PURCHASING CONDITIONS.
ANY OTHER DIFFERENT TERM TO THE PRESENT GENERAL TERMS AND CONDITIONS SHALL BE SUBJECT TO EXPRESS AND WRITTEN AGREEMENT BETWEEN THE PARTIES TO BE ENFORCEABLE AGAINST PHANTOM INTERNATIONAL.
Article 3: Offers – Products
3.1 The Products offered for sale by Phantom International are those displayed on its catalogs and/or it’s Website at the date of the Order.
Information of any kind in relation to the Products provided by Phantom International through its catalogs and/or commercial documentation (such as brochures, website…), are purely indicative.
The offers of Products and/or the Products that being likely subject to further development, Phantom International reserves the right, at any time, to modify the characteristics and/or the components of Products in its catalogs and/or commercial documentation.
The Purchaser acknowledges that modifications may occur at any time, including after the conclusion of the order if these modifications are resulting from the application of any standards, texts or regulations of any kind applicable to part or all of the Products.
Offers of Products are valid during all validity period of catalogs and/or commercial documentation, solely on the Territory, subject to availability of the Products at the time the order is received by Phantom International. Unavailability of a Product in the scope of an order including several Products due to stock outage, its deletion from catalogs, commercial documentation, or for any other reason, shall not result in any cancellation by the Purchaser for the remaining Products and shall not give rise to compensation from Phantom International.
Article 4: Conditions of order placement
4.1- To place an order, the Purchaser has to request a price list of the selected Product(s) to Phantom International through the contact form available on the Website.
Upon receipt of the request, Phantom International sends then a proforma form to the email address provided in the contact form.
Then, the Purchaser has to fill the order form by completing notably name and title of the person placing the order, quantity, names and references of the Products, desired options, prices, invoicing address, place or port of use…
After, the Purchaser shall accept the General Terms and Conditions by ticking the box provided for this purpose. Once the order form is filled and signed, the Purchaser shall address it to Phantom International by email to the following e-mail address firstname.lastname@example.org or by post mail to the following postal address, Phantom International, 40 rue des frères Boussac, 35800 Dinard, France.
To be a binding and irrevocable order, any order shall be subject to:
- Phantom International’s confirmation, sent to the Purchaser by email or by any means and with which the General Terms and Conditions and a proforma corresponding to the amount of the advanced payment will be attached;
- Payment by the Purchaser of an advanced payment according to the terms of Article 5.2 of General Terms and Conditions;
4.2 In the case of a temporary unavailability of a Product after validation of the order, Phantom International undertakes to inform the Purchaser of it by any means within 72 hours. In this case, Phantom International shall proceed to an immediate refund of the Purchaser for said Product, to whom Phantom International shall also offer similar Product(s) to the one(s) ordered, upon acceptation of the Purchaser.
4.3 The Purchaser acknowledges and accepts that Phantom International may cancel and/or suspend and/or delay and/or modify the execution of any order in case of any subsequent event to its conclusion and preventing its execution in normal conditions, notably in case of evolution of standards, texts and/or regulations, applicable to all or part of the Products and/or in the case of force majeure as provided in Article 13 of the General Terms and Conditions.
Article 5: Price – Payment conditions
5.1.1 Prices of Products are those in force on the day of the conclusion of the order, and of which the Purchaser declares having knowledge. Prices are indicated in EUROSs, excluding taxes. Prices are increased, if applicable, of any applicable taxes (in particular local taxes or importation taxes), at their current rate at the date of invoicing.
5.1.2 Phantom International reserves the possibility to modify price list of offered Products at any time. Said modifications shall not affect the Products that have been already ordered.
Payments are processed solely by bank transfer to the Phantom International account by two installments:
- A advanced payment corresponding to fifty percent (50 %) of the total amount of the order is paid by the Purchaser to Phantom International at the time of the order;
- The balance is paid by the Purchaser before the shipping of the Product(s) following the receipt of the outstanding invoice addressed by Phantom International.
Any potential claim regarding the amount of the invoice shall be made by the Purchaser within a maximum of five (5) days following the date of invoicing. After said delay, invoice will be considered as accepted.
Moreover, any potential claims in relation to the Products that would be addressed by the Purchaser to Phantom International do not waive him from payment of the ordered Products.
The default of payment of any sums owed at the due date shall result, by right and without any formality, to the application of interest on late payment at the rate of three (3) times the legal rate of interest and compensation lump sum of forty (40) Euros for recovery costs in accordance with Articles L441-6 and D441-5 of the French Commercial Code.
Any default of payment will result in the immediate payability of all amounts owed to Phantom International by the Purchaser, without prejudice of any other action that it would be entitled to bring, as such, against the Purchaser. In addition, if applicable, no Product will be shipped by Phantom International, that the Purchaser declares accepting.
Article 6 – Provision and collection of the Products
6.1 – Delay
6.1.1 Excluding force majeure as provided in Article 13 of General Terms and Conditions, Phantom International undertakes to make available the Products to the Purchaser within the maximum period provided in the confirmation of the order.
6.1.2 Regarding consumers Purchasers within the meaning of the French Consumer Code, in case of delay of availability of Products in relation to the maximum delay provided by Phantom International in the confirmation of the order, the Purchaser may require Phantom International to perform in a reasonable time by registered letter with acknowledgement of receipt sent to the following postal address: Phantom International, 40 rue des frères Boussac 35800 Dinard, France and/or by email addressed to the following address : email@example.com
Failing performing the availability of Products by Phantom International in said reasonable time and if said delay of provision constitutes for the Purchaser an essential condition, the latter may cancel its order by registered letter with acknowledgement of receipt and/or by email sent to the same addresses.
In such case, if the Products are made available after its cancellation request, the Purchaser will have to reject them.
Phantom International will then refund the Products, at the latest within fourteen (14) days following the date on which order was cancelled.
After said period, the amounts owed by Phantom International will be increased by: ten percent (10 %) if the refund occurs no later than thirty (30) days after said period; twenty percent (20 %) if the refund occurs no later than sixty (60) days after said period; fifty percent (50 %) beyond.
6.1.3- Regarding professional Purchasers delays of provision of the Products are provided on a purely indicative basis. Therefore, they do not in any case engage the responsibility of
Phantom International and any delay or partial delivery of the Products shall not give rise to late penalties, deductions, damages, or justify the cancellation of the current order and that, of whatever reasons and/or consequences of these delays.
6.1.4- If the delay of provision is caused by an event of force majeure as provided in Article 13, Phantom International will inform the Purchaser that its cancellation request cannot succeed.
Except specific provisions, Phantom International is not required to make available the Product in the absence of full payment of the price by the Purchaser.
The product delivery address is at Phantom International’s warehouse located at the following address: Phantom International, 40, rue des frères Boussac, 35000 Dinard, Phantom International could temporarily store them on a free basis. Phantom International will inform the Purchaser of the availability of the Products at its warehouse about fifteen (15) days in advance.
If for practical reasons, the Purchaser wishes the product to be delivered to the place or delivery port specified by the Purchaser, this routing may be organized either by the purchaser or by Phantom International. When Purchaser organizes the routing of the Product this routing is carried out at expense and risk of the Purchaser which the Purchaser declares accepting.
When Phantom International organizes the routing of the Product this routing is carried out at expense of the purchaser which the Purchaser declares accepting.
The Purchaser is responsible to collect at its costs and risks the Products within a maximum period of eight (8) working days from the provision. After said period, Phantom International will charge the Purchaser a penalty of an amount of one hundred (100) Euros per day of delay. In addition, charges of parking and/or handling occurred by the non-collection of the Products shall be borne by the Purchaser and will be charged by Phantom International.
Furthermore, if applicable, Phantom International reserves the right to cancel the order and/or to make available the Products to another Purchaser without being held responsible and without prejudice of damages that it may claim.
Article 7: Verification of the Products
The Products are made available to the Purchaser and/or its authorized representative in compliant conditions to the applicable regulation.
The Purchaser or its authorized representative is required, during taking possession of the Products, to sign the delivery form that is issued to it and to perform to a control of the Products and their conformity to the order.
In case of failures, losses, deficiencies, damage or non-compliance noticed on the Products, the Purchaser or its authorized representative shall be responsible to express detailed reservations on the provision form and to confirm them by registered letter with acknowledgement of receipt or by extrajudicial document addressed to the carrier with a copy to Phantom International, within a maximum of three (3) working days following the provision of the Products. After said period, any claim in relation to either obvious defects or conformity of the Products shall not be taken into consideration.
The claim of the Purchaser shall be deemed to be received by Phantom International only if it acknowledges receipt in writing. The Purchaser shall indicate in its claim the order number and provide all justification as to the reality of the obvious defects or non-conformities noticed. The Purchaser will enable Phantom International to freely proceed with ascertaining of said defects and non-conformities.
Any delivery that has not been subject to reservations as indicated above shall be considered as accepted by the Purchaser. Consequently, the receipt without reservation covers any obvious defects and/or incomplete delivery.
Article 8: Right of withdrawal
Pursuant to Article L.121-21-8 of the French Consumer Code the Products being personalized, the Purchaser will not be able to exercise the right of withdrawal.
Article 9: Non – compliance – Returns
9.1- Phantom International undertakes to provide the Purchaser with a Product compliant to its order.
9.2- Regarding consumers Purchasers within the meaning of the French Consumer Code, the Products provided by Phantom International are covered by the legal warranty of conformity defects and hidden defects.
In case of non-conformity of the delivered Product, including obvious defects, the Purchaser will be entitled to request the repair or replacement.
If repair and/or replacement of the Products are impossible, the Purchaser will be able to return the Product and will receive refund of the price or keep it and receive a part of the price, unless conformity defect is minor, in accordance with the Consumer Code.
If applicable, the Products shall be made available to Phantom International at a place indicated by the latter.
It is recommended to the Purchaser to return the Products by a transport mode offering similar guarantees to those proposed for the initial transport.
In case of non-conformity of the Products detected by Phantom International, said operations will be carried out without additional charges borne by the Purchaser, return costs of the Product(s) being in this context borne by Phantom International.
The Purchaser shall be responsible to keep the proof that it returned the Products to Phantom International.
Article 10: Warranties / Liability
10.1- The Products are covered by the legal warranty of hidden defects. In this case, provisions under Article 9 will be applicable.
10.2- The Products are compliant to the French legislation in force and to the standards applicable in the European Union.
Phantom International could not be held responsible for non compliance with legal or regulatory provisions in force in the country where the Product is used, outside of France.
10.3- The Purchasers are invited to refer to the owner’s manual provided by Phantom International at the provision of the Products.
In accordance with said owner’s manual, it is hereby pointed out that, in particular, are excluded from any warranties provided by Phantom International:
- Any warranty in relation to the suitability of the Products with the needs of the Purchaser and/or use of the Products. The Products offered by Phantom International is directed to a public of experienced users with sailing experience. The use of the Products must strictly comply with safety specifications and instructions reproduced in the owner’s manual and/or in the assembly and operating manual and Phantom International could not be held responsible for damage occurred due to the non compliant use of the Products and consequences of any incident caused in particular by an improper use of the Product, non-compliance with safety instructions and absence of experience of the users.
- Defects of Products coming from a cause external to Phantom International,
- Damage resulting from a case of force majeure, or resulting from unforeseeable circumstances or due to natural causes;
- Abnormal use of the Products or in conditions unsuitable for their intended use;
- Defect of compatibility between supports and materials on/with which the Products are used.
IN ANY CASE, THE ADVICE PROVIDED BY PHANTOM INTERNATIONAL CANNOT IN ANY CIRCUMSTANCES REPLACE A PROPER USE OF THE PRODUCT, THE NEED OF HAVING APPROPRIATE SKILLS AND NECESSARY EXPERICENCE OF SAILING AND/OR BE ANALYSED AS GRANTING ANY WARRANTY.
Finally, liability of Phantom International is limited to the free of charge replacement of the Products or to their refund, excluding any compensation payments or damages.
Article 11: Reservation of title
PHANTOM INTERNATIONAL RESERVES THE ENTIRE PROPERTY OF THE PRODUCTS, SUBJECT TO DELIVERY, UNTIL EFFECTIVE FULL PAYMENT OF THE PRICE IN PRINCIPAL AND ACCESSORIES, IN ACCORDANCE WITH ARTICLES 2367 AND FOLLOWING OF THE FRENCH CIVIL CODE.
FAILING ANY PAYMENTS BY THE PURCHASER OR PART OF THE PRICE, RESERVATION OF TITLE MAY ARISE, WITHOUT THE NEED OF ANY PRIOR FORMAL NOTICE.
THE PRODUCTS WILL BE IMMEDIATELY RETURNED TO PHANTOM INTERNATIONAL, AT THE PURCHASER’S EXPENSES. IT IS FORBIDDEN TO THE PURCHASER TO DISPOSE OF THE PRODUCTS THAT IT WOULD NOT HAVE FULLY PAID, FOR RESALE OR TO TRANSFORM THEM.
HOWEVER, IN CASE OF RESALE, PHANTOM INTERNATIONAL COULD OPERATE A RESALE RIGHT BY CLAIMING THE DEBT DIRECTLY TO THE ULTIMATE CUSTOMER.
EXCEPT BEING HELD PERSONNALLY RESPONSIBLE, THE PURCHASER UNDERTAKES TO IMMEDIATELY INFORM PHANTOM INTERNATIONAL OF POTENTIAL SEIZURE OF PRODUCTS OR ANY FACT DEPRIVING IT FROM POSSESSION OF THE PRODUCTS IN THEIR ENTIRETY (THEFT, DEGRADATION, THIRD PARTY INTERVENTION, ETC…)
THESE PROVISIONS DO NOT PREVENT THE TRANSFER OF RISKS OF LOSS AND OF DETERIORATION OF SOLD PRODUCTS, INCLUDING DAMAGE THAT THEY MIGHT CAUSE.
Article 12: Intellectual Property
All intellectual property rights attached to the Products, catalogs, specifications and to information provided by Phantom International remain the exclusive property and/or are reserved to Phantom International.
Nobody is allowed to reproduce, operate, release or use said elements for any reason whatsoever, even partially. All these elements are protected, in particular, by private rights and copyright, patents and trademarks, for the entire world.
Relations between the Parties could not involve any assignment of intellectual property rights and private rights by Phantom International to the Purchaser on the different distinctive elements (graphical elements, trading name, corporate name, packaging of the Products, composition of the Products, trademark etc.). Phantom International holds the exclusive property of its intellectual property rights and private rights on these elements and Products.
In particular, Phantom International holds, exclusively, all corporeal and incorporeal rights, industrial and/or intellectual and including copyright, that it could hold on the elements and Products that it provides to the Purchaser.
The Purchaser undertakes to comply with the full rights of Phantom International on its trademarks, distinctive signs, names, Products.
The Purchaser is forbidden to file or make someone file a trademark, a distinctive sign or a name which is identical, similar or competitor of a trademark, a distinctive sign or a name owned by Phantom International on any territory whatsoever and for any product or service whatsoever, and the Purchaser is forbidden to develop similar products to the Products in terms that would be likely to violate Phantom International’s rights.
Article 13: Force Majeure
Phantom International shall not be held liable for the failure to its obligations under the General Terms and Conditions and/or of the order, due to an event of Force Majeure, as defined by the French jurisdictions. The followings events are considered to be force majeure, delays of suppliers of Products, strike of the suppliers of the Products, the end of business relations with suppliers of Products, strike of the carriers of the Products, weather conditions (such as typhoons, cyclones…) in suppliers’ country, political situation of the suppliers’ country…
Article 14: Applicable law and dispute resolution
These General Terms and Conditions shall be governed by French law, French law being applicable to all disputes, either contractual or relating to tort, arising between the Purchaser and Phantom International.
REGARGING NON CONSUMERS PURCHASERS IN THE MEANING OF THE CONSUMER CODE, ALL CLAIMS, DISPUTES OR QUESTIONS ARISING OR IN RELATION TO THE GENERAL TERMS AND CONDITIONS, THEIR VALIDITY, INTERPRETATION, FAILURE OR BREACH OR TERMINATION OF THE LATTER WILL BE THE EXCLUSIVE COMPETENCE OF COMPETENT JURISDICTION OF PARIS, PHANTOM INTERNATIONAL RESERVES THE RIGHT TO SUE THE PURCHASER BEFORE JURISDICTIONS OF THE PURCHASER’S COUNTRY.
Article 15: Translations
In case of translation of the present General Terms and Conditions, the French version shall prevail