Article 1 - 1: Creation and use of a KEYFIRST User Account
1.1 These KEYFIRST General Terms and Conditions of Sale (hereinafter referred to as the "GTCs") apply in their entirety to all sales of products and services (hereinafter referred to indistinctly as the "Products") offered by KEYFIRST (hereinafter referred to as the "Keyfirst") to a clientele of professionals located in Metropolitan France, including Corsica and the French overseas territories and acting exclusively for purposes relating to their professional activity (hereinafter referred to as the "Customer"). The catalogue of Products offered by KEYFIRST to the Customer is accessible on the website www.keyfirst.fr (hereinafter referred to as the "Site")
For the purposes of this document, professionals are considered to be any person with a SIREN number (companies, self-employed entrepreneurs, liberal professions, associations, works councils, institutions and public authorities, etc.). It is expressly specified that the GTCs are only applicable to sales made to a Professional Client who acts for purposes that fall within the scope of his professional activity, and therefore no right of withdrawal exists for the benefit of the Client.
1.2 Any order implies full and unreserved acceptance of all the provisions of the T&Cs and prevails over any other document that may be issued by the Client. Unless specific conditions agreed by amendment signed between two parties, the GTCs are the only ones applicable to the placing of an order. The GTCs supplemented by the Client's order validated by KEYFIRST and, where applicable, by the amendment signed between the two parties constitute the sales contract concluded between KEYFIRST and the Client, to the exclusion of any written document previously exchanged by the parties. Any derogation from the GTCs implies the signature between the parties of a specific agreement.
1.3 The applicable General Terms and Conditions are those in force on the day of the order validated by the Customer, in accordance with the terms defined in Article 3 of the General Terms and Conditions.
1.4 The current version of the T&Cs is permanently accessible on the Site and is addressed to the Customer when creating his KEYFIRST User Account (see article 2 of the T&Cs). The General Terms and Conditions in force at the time of placing the order may also be consulted by the Client by clicking on the link at the bottom of the page of the quotations sent, where applicable, by KEYFIRST.
1.5 KEYFIRST reserves the right to modify the Pro General Terms and Conditions at any time, subject, as far as possible, to a notice period. Any modification of the T&Cs will be notified to the Client by sending an e-mail to the address provided by the Client as part of the procedure for creating a KEYFIRST User Account. It is the Client's responsibility to take note of the amended GTCs prior to placing any new order, which is automatically subject to the new GTCs in force.
Article 2 - 2: Creation and use of a KEYFIRST User Account
2.1 Before placing an order, the Customer is required to create a "KEYFIRST" account (hereinafter referred to as the "User Account"). To create a User Account, the Customer must fill in a form accessible online and enter all the requested information. As part of the registration form, the Customer must also declare and certify on his or her honor that he or she undertakes to use the User Account to order Products exclusively for purposes related to his or her professional activity. In the event of non-compliance with this certificate, the Client shall be solely responsible for the consequences that may result from it (criminal, tax, etc.) and undertakes to guarantee KEYFIRST from all the consequences that the latter may suffer as a result of non-compliance with this stipulation.
2.2 To activate the User Account, the Customer must validate the User Account creation form, according to the procedure indicated on the Site. The validation of the User Account will imply the express acceptance of KEYFIRST's General Terms and Conditions by the Client. An e-mail confirming the creation of the User Account will be sent to the Customer at the address indicated in the registration form.
2.3 The Customer shall refrain from impersonating any third party, from creating an account for any person other than himself, from providing an e-mail address that he does not own and from creating several User Accounts. The Customer is solely responsible for his login and password and any fraudulent use thereof. The Customer undertakes not to disclose his password and not to allow a third party to use his User Account or allow him to compromise the security of his Account. In the event that the Customer discloses his password to a third party, KEYFIRST reserves the right to close his User Account. In addition, if the Customer loses his username and/or password, he must contact KEYFIRST without delay via his User Account on the Site. After having followed all the instructions provided by KEYFIRST, the Customer will receive, on the e-mail address he has previously communicated to KEYFIRST, his new temporary identifier and/or password which he will then have to personalize under the conditions indicated in the said e-mail. If the Customer forgets the email address he used to create his User Account, then he must contact KEYFIRST who will provide it to him.
2.4 KEYFIRST reserves the right to prevent the use of the User Account, in the event that the Customer provides incomplete, inaccurate or non-conforming information during the process of creating or updating the User Account.
Article 3 - 3: Placing an order for Products
3.1 Once the User Account has been created, the Customer may send his order forms to KEYFIRST by any written means (fax, e-mail, etc.). When the Customer wishes to place his order via the Site, he must use the online order form. When the amount of the order exceeds a certain threshold, the Customer can request an online quote. In addition, certain conditions related to the order (weight, volume, etc.) automatically lead to an online quote request.
3.2 For orders placed online, any order only becomes firm and definitive once accepted by KEYFIRST and subject to the availability of Products in stock. This acceptance takes the form of an order confirmation sent by KEYFIRST to the Customer by e-mail. For orders for which a quotation has been requested, the Customer's order only becomes firm and definitive once the quotation has been returned by the Customer (by fax or e-mail) duly initialed, signed by an authorized person and stamped by the Customer and this, during the period of validity of the quotation.
3.3 KEYFIRST reserves the right to refuse to honor an order: - which would be of an abnormal nature (in terms of quantities ordered in particular); - in the event of failure by the Customer to fulfil its obligations; - in the event of a manifest price error; - in the event of a lack of sufficient information to enable KEYFIRST to execute the said order.
Article 4 - Prices
4.1 KEYFIRST's prices applicable to sales are available on the Site. Prices are expressed in euros, excluding taxes (but including ecotax), excluding delivery costs. The delivery costs that are re-invoiced to the Customer by KEYFIRST are indicated on the Site as part of placing an order directly online, on the quotation sent by KEYFIRST or on the order confirmation sent by KEYFIRST to the Customer. The VAT rate applicable is that in force on the day the invoice is issued. The rate is established for deliveries in Metropolitan France, Corsica, DOMTOM exclusively.
4.2 Orders are invoiced at the price applicable on the day the quotation is issued by KEYFIRST or its confirmation by email of the online order. Prices are subject to change at any time. It is therefore the Client's responsibility to consult the prices in force on the Site before placing any order. Under no circumstances may the Customer invoke any right against KEYFIRST for the purpose of benefiting from a price previously offered or subsequently proposed by KEYFIRST on the Site.
4.3 Where financial benefits are agreed on the basis of the turnover generated between KEYFIRST and the Customer, the turnover used as a basis of assessment corresponds to the turnover excluding all taxes (in particular, excluding VAT, Eco-Emballages contribution) actually received by KEYFIRST during the reference period.
Article 5 - Deliveries
5.1. Delivery times and modalities
5.1.1. Delivery times are indicated by KEYFIRST, on the Site.
5.1.2. Unless otherwise agreed in writing in advance between the Parties, transport and/or shipping operations shall be managed by KEYFIRST and carried out by standard or express courier, within office hours. The terms of delivery and the applicable rate are available on the Site. When the Customer wishes to agree on specific delivery terms, he is invited to contact KEYFIRST by email or telephone.
5.2. Transfer of risks Notwithstanding the application of the retention of title clause, the transfer of risks takes place at the place and time agreed in the order confirmation, at the time of the first presentation of the carrier at the Customer's premises. The unloading of the Products is in any case carried out under the exclusive responsibility of the Customer. All unloading operations of the Products must be carried out on covered and street level platforms. When the Customer collects the Products directly from KEYFIRST's premises, the transfer of risks occurs when the Products are made available by KEYFIRST on its premises, all transport, loading and unloading operations being at the Customer's sole risk and expense. Notwithstanding the retention of title clause, and as from the transfer of risks, the Customer shall insure the products against all risks of damage or liability, and in particular take out product liability insurance on behalf of KEYFIRST and at its expense.
5.3. Delay and refusal of delivery
5.3.1. No delay in delivery authorizes the Customer to cancel, totally or partially, his order or to refuse the delivery of the Products, without KEYFIRST having been able to observe effectively and in advance, the reality of the grievance which is reproached to him by the Customer. In any event, the return of the Products may only take place if KEYFIRST has given its express prior consent, in compliance with the provisions of Article 7.
5.3.2. No penalty of any kind whatsoever may be applied by the Client to KEYFIRST when the alleged breach by the Client is due to a circumstance beyond the control of KEYFIRST and/or, even partially, to the fault or negligence of the Client.
5.3.3. In other cases, the application of penalties presupposes that KEYFIRST has been able to check the reality of the grievances alleged by the Client. Consequently, no penalty may be applied unilaterally and without contradiction by the Client. Any compensation with an amount due by the Client to KEYFIRST also presupposes that KEYFIRST has expressly acknowledged, in writing and in advance, the reality of the grievance justifying the application of the penalties.
5.3.4. In any event, the application of penalties cannot be purely fixed and predetermined. Indeed, any penalty must reflect the reality of the damage actually suffered by the Customer and may only apply to undelivered Products (for which the Customer has clearly demonstrated that he has suffered damage) and not to the entire order.
5.3.5. Any refusal of delivery made unilaterally by the Customer, without compliance with the provisions of Article 7, for reasons not attributable to KEYFIRST and not linked, in particular, to a problem of late delivery, quality etc., shall engage the responsibility of the Customer towards KEYFIRST.
5.4. Reservations for carriers
5.4.1. In the event of damage, delays or missing items, it is the Client's responsibility to record the protests and reservations with the carrier on the receipt document which he must sign, have the carrier or his driver's agent countersign, date and confirm by registered letter within three (3) days, not including public holidays, in accordance with the provisions of Article L 133-3 of the Commercial Code.
5.4.2. Compliance with this formalism is necessary to engage the liability of the transport service provider. Failing this, the Customer shall be solely responsible for the possible consequences of such non-compliance.
Article 6 - Invoicing and payment conditions
6.1 Invoices are payable in cash, at the time of placing the order, before shipment of the Products. Payment is made by bank transfer, credit card, administrative mandate or cheque. Settlement is deemed to have been made when the funds are actually available to KEYFIRST in its bank accounts.
6.2 No discount for early payment or cash payment is granted.
6.3 When the parties maintain a steady flow of business, KEYFIRST may agree to payment terms of thirty (30) days from the date of issue of the invoice, depending on the credit authorization obtained from insurance or financial information companies. Where applicable, payment terms will be agreed in writing, signed by both Parties. In the event of insufficient or unsatisfactory information or in the event of late payment, invoices will again become automatically payable in cash at the time of placing the order.
6.4 Any deterioration in the Customer's credit may, at any time, justify: - the reduction of the ceiling of the Customer's outstanding amount, if any, granted by KEYFIRST, which may lead to a suspension of pending orders; - the requirement for cash payment, at the time the order is placed before the Products are shipped; - the request for specific guarantees (autonomous guarantee, bank guarantee, etc.). If KEYFIRST is unable to obtain such guarantees, for any reason whatsoever, it reserves the right not to honour orders and/or to suspend and/or terminate pending orders.
6.5 Any unpaid invoice, in whole or in part, on the due date shall automatically result, without prior formal notice: - the application of late payment penalties calculated by applying a rate equal to three times the legal interest rate in force on the amounts remaining due and for a period corresponding to the number of days of delay recorded between the due date on the invoice and the actual payment on the value date; - the legal fixed compensation of €40 for recovery costs, without prejudice to KEYFIRST's right to claim additional compensation on supporting documents; - the immediate payment of any remaining amounts due, regardless of the method of payment provided. KEYFIRST will also have the ability to: - notify the resolution of the relevant sales contracts, the Customer must then return the unpaid Products, subject to a retention of title clause, which have already been delivered, at its own expense and risk; - the right of KEYFIRST to claim compensation for the damage suffered; - refuse any new order or suspend the execution of current orders until all sums due have been paid or until the Customer has provided a payment guarantee to KEYFIRST.
6.6 Compensation shall automatically be made between the sums due by the Client to KEYFIRST and those due by KEYFIRST to the Client and in the manner provided for in Article L 442-6, I, 8° of the French Commercial Code with regard to compensation for non-compliance with delivery deadlines or non-compliance of the goods. Consequently, the Client expressly agrees that the compensation of sums due by the Client to KEYFIRST, whether under the sales contracts concluded between KEYFIRST and the Client or under any other commercial relationship that the parties may otherwise maintain, with all claims that KEYFIRST owes to the Client and/or with any other sums that KEYFIRST holds in the name and on behalf of the Client, for any reason whatsoever, either automatically and immediately and in the manner provided for in Article L442 6 I 8° of the French Commercial Code regarding compensation for non-compliance with delivery deadlines or non-compliance of goods. In the event of termination of business relations, the receivables and any other amounts due from each other between KEYFIRST or its delegates or delegates, on the one hand, and the Client, on the other hand, shall automatically become due and shall offset each other. The same shall apply in the event of default or delay in payment by one of the Parties of any sums due in respect of invoices issued.
Article 7 - Products - Conformity - Warranty
7.1. Product Features
7.1.1. The visuals of the Products accessible on the Site have no contractual value and are therefore not enforceable against KEYFIRST.
7.1.2. The Products are offered by KEYFIRST within the limits of available stocks. KEYFIRST cannot be held liable by the Customer in the event of unavailability of a Product.
7.1.3 KEYFIRST freely determines the evolution of the ranges and product references offered on the Site. The information provided in the catalogues and leaflets is provided by KEYFIRST for information purposes only. KEYFIRST thus reserves the right to cease marketing any Product offered to the Customer appearing on the site or the commercial documents and/or to modify at any time the characteristics of these Products, without the Customer being able to engage KEYFIRST's liability in this respect and/or claim payment of damages.
7.1.4 It is the Customer's responsibility to carefully read the description of the Products and its technical characteristics detailed on the Site and to verify that the Product(s) he wishes to order correspond(s) to his needs and expectations. Under no circumstances shall KEYFIRST's liability be engaged by the Customer when the latter has ordered a Product that does not correspond to its needs and expectations of which KEYFIRST has not been informed. The Customer's attention is drawn to the fact that KEYFIRST installs product ranges for professional equipment and other products that do not have the characteristics of professional equipment and are intended for current non-intensive use. Thus, the Customer may not blame KEYFIRST for any non-compliance or invoke the benefit of a guarantee if the latter has purchased a consumer good for industrial use
7.1.5. Under no circumstances can unsold items be returned by KEYFIRST.
7.1.6. The Products offered by KEYFIRST comply with the regulations applicable in metropolitan France. It is the responsibility of the Customer who intends to export the purchased Products to verify the compatibility and conformity of the Products with the legislation of the country of destination. KEYFIRST cannot be held liable by the Client in the event of the export of Products that are not compatible or not in conformity with any legislation not applicable in France, which the Client expressly acknowledges and accepts.
7.2. Treatment of waste electrical and electronic equipment and waste furniture components (WEEE) In order to finance the collection and recycling of waste electrical and electronic equipment (WEEE) and waste furniture components (WEEE), KEYFIRST, in its capacity as distributor, has the obligation to collect an eco-tax from Customers. The amount of the eco-tax is indicated on the Site, on the product sheet of the articles covered by this obligation. It is specified that KEYFIRST does not take back the electrical and electronic equipment of Customers, having the status of reseller of the purchased products (as opposed to Customers who use the purchased products for their professional activity). KEYFIRST informs the Customer, who is the reseller of the products purchased, that, in accordance with Articles L. 541-10-2 and R. 543-180 of the Environmental Code, any consumer may benefit from a right to take back his used electrical and electronic equipment free of charge; it is therefore the Customer's responsibility to inform his own customers of the cost of waste disposal under the conditions provided for in the applicable regulations and to ensure that used equipment is returned to consumers who request it.
7.3. Receipt and conformity of Products
7.3.1 KEYFIRST undertakes to deliver a Product in accordance with the order addressed to the Customer. The Customer is solely responsible for the adequacy of the Products ordered with the Customer's specific needs and expectations as well as for the use for which the Customer intends the Product.
7.3.2. Without prejudice to the reservations to be made by the Customer with the carrier, any complaints relating to the conformity of the Product must be brought to the attention of KEYFIRST, under penalty of inadmissibility, in writing, as soon as possible and at the latest within 3 calendar days of receipt of the Products by the Customer. To be valid, any complaint must include the references and dates of the corresponding order and delivery documents.
7.3.3. It is the Client's responsibility to provide any justification as to the reality of the non-conformities found. The Customer shall reserve for KEYFIRST every facility to identify the Product(s) concerned and to proceed to the possible observation of the alleged facts in order to remedy them. KEYFIRST reserves the right to proceed directly or through any intermediary of its choice to any observation, verification and examination at the Client's premises.
7.3.4. Returns of non-conforming Products are only allowed and accepted with the prior written consent of KEYFIRST. No unjustified return or take-back of Products may be required by the Customer. The Products must be returned to KEYFIRST by the Customer, without any modifications, within fifteen (15) calendar days of KEYFIRST's acknowledgement of the non-conformity.
7.3.5. KEYFIRST's liability is strictly limited to the replacement of Non-Conforming Products or the refund of Non-Conforming Products, at their invoiced price, excluding any damages.
7.3.6. In the absence of any reservation or complaint made by the Customer in accordance with the provisions of this article, any Product delivered shall be deemed to be in conformity.
7.3.7. In accordance with Article L 442-6 of the French Commercial Code, the Customer is prohibited from refusing Products and/or returning Products and/or automatically applying penalties, without KEYFIRST having been able to check the reality of the grievance invoked by the Customer. Any unjustified refusal of all or part of the Products will result in the invoicing of the transport costs and other costs caused by the refusal.
7.4. After-sales service
7.4.1. The manufacturer or supplier of the Product sold by KEYFIRST to the Customer may offer after-sales service and/or specific commercial guarantees on these Products. KEYFIRST is at the Customer's disposal to indicate the terms and conditions under which the manufacturer or supplier of the Product will take charge of the Products in this respect, the conditions of which may vary from one manufacturer or supplier to another.
7.4.2. KEYFIRST may, for certain Products, offer additional contractual guarantees against payment. The prices, terms and conditions for granting and invoking such guarantees are detailed on the Site.
7.5. Legal guarantee for hidden defects and liability for defective Products.
7.5.1. In the event of the subsequent occurrence of a defect, hidden at the time of sale, rendering the Product unfit for its normal purpose, the Customer is required to notify KEYFIRST of the occurrence of the defect within thirty (30) calendar days of its discovery. This notification must include the references and dates of the corresponding order and delivery documents.
7.5.2 It is the Customer's responsibility to provide any justification as to the reality of the defects that have occurred and their consequences on the destination of the Product. The Customer shall reserve to KEYFIRST all facilities to identify the Product(s) concerned and to proceed to the possible detection of the alleged defect. KEYFIRST reserves the right to proceed directly or through any intermediary of its choice to any observation, verification and examination at the Client's premises.
7.5.3. When the defect rendering the Product unfit for its intended purpose has been established by the Customer and acknowledged by KEYFIRST; KEYFIRST undertakes either to refund the sale price of the Product in consideration of the return of the said Product by the CLIENT or to replace the Product, excluding any damages.
7.6. Product Recall
7.6.1 KEYFIRST may, at the request of one of its suppliers or the competent authorities, withdraw or recall Products. Any procedure for the withdrawal-recall of Products will be carried out in close collaboration between the Customer and KEYFIRST, with a view to efficiency, reactivity and proportionality. With this in mind, the Client undertakes to take all necessary steps with its own clients.
7.6.2. Any communication from the Customer about the quality of the Products sold by KEYFIRST may only be made with the express agreement of KEYFIRST.
7.7. KEYFIRST's Conditions of Liability
7.7.1. The Customer is required to carefully read the notices relating to the technical characteristics of the Products provided by the manufacturer of the Products and to strictly comply with the conditions of use defined by the latter. The Customer shall be solely responsible for the consequences of non-compliance with the conditions of use, abnormal use of the Products and/or abnormal or inappropriate storage conditions. KEYFIRST's liability, for any reason whatsoever, cannot be engaged by the Client in the event of non-compliance with this stipulation, which the Client expressly acknowledges and accepts.
7.7.2. KEYFIRST cannot be held liable under any circumstances in the event of non-compliance of the Products with the standards and regulations that would come into force after their delivery or in the event of deterioration or damage to the Products not attributable to KEYFIRST.
7.7.3. KEYFIRST's liability may only be validly engaged if the Client proves the existence of a fault attributable to KEYFIRST, a prejudice and a causal link between the fault and the prejudice. KEYFIRST's liability shall in any event be strictly limited to direct, certain and foreseeable damage, excluding any indirect, hypothetical or unforeseeable damage and in any event shall be limited to the amount actually collected by KEYFIRST in respect of the order placed by the Customer or, where KEYFIRST's liability is unrelated to a specific order, to the amounts actually collected by KEYFIRST in respect of orders placed by the Customer during the last twelve (12) months.
Article 8 - Retention of title
8.1 Keyfirst reserves ownership of the delivered products until full payment of the price as well as late payment penalties or lump sum indemnities for collection costs and any other accessory and complementary sums.
8.2 The Customer undertakes to allow the identification and claiming of the delivered Products at any time. By express agreement, the Products in stock with the Customer are deemed to relate to unpaid invoices.
8.3 The Client, authorized to resell the products delivered in the normal course of its business, undertakes, where applicable, to assign by operation of law to KEYFIRST the claim held against its sub-purchasers, up to the amounts still due. The Customer is also required to immediately inform KEYFIRST of the seizure, for the benefit of a third party, of the Products delivered under reservation of ownership. The Customer also refrains from pledging or assigning ownership of the Products as security.
8.4 In the event of non-payment of a fraction or the entirety of any of the agreed deadlines, and fifteen (15) days after a formal notice by registered letter remained unsuccessful, in whole or in part, KEYFIRST reserves the right to continue the forced execution of the sale or the termination of the sale. In the latter case, the Product must be made available immediately to KEYFIRST, unless KEYFIRST requires the return of the Products at the Customer's risk and expense. This claim may be made by any means (registered letter, fax, bailiff's summons, contradictory inventory, etc.), at the Client's expense, risk and peril. Any sums already paid by the Client (in particular the instalments) shall remain acquired as damages, without prejudice to KEYFIRST's right to claim additional justified damages.
8.5 The foregoing provisions shall not prevent the transfer to the Customer of the risks of loss and deterioration of the Products sold as they result from article 5.2. Above.
Article 9 - Intellectual property rights
9.1 The Client acknowledges that KEYFIRST does not own all the intellectual property rights and other distinctive signs covering the Products sold by KEYFIRST and the elements attached thereto, including the visuals of the Products. Consequently, the sale by KEYFIRST of the Products to the Customer does not entail any transfer or concession of any intellectual property rights whatsoever relating to said Products and the elements attached thereto, including the visuals of the Products, and in particular rights in terms of trademarks, designs and models, patents or even copyright.
9.2 When the Customer intends the Products acquired from KEYFIRST for resale, he undertakes to resell the Products in their original presentation and packaging, without making any alteration. The Customer also undertakes not to misuse the Products in any way that would infringe the manufacturer's intellectual property rights and, more specifically, that would discredit or devalue the Products and the rights attached thereto. In the event of non-compliance with this stipulation, the Client shall be solely responsible for all the consequences that may result from it and shall guarantee KEYFIRST as a result, which the Client expressly acknowledges and accepts. In general, the Client undertakes to: - not to alter all of KEYFIRST's intellectual property rights and not to make improper use of them that would discredit or devalue KEYFIRST's Products. Thus, in particular, the Customer undertakes to avoid, for example, in the context of comparative advertising featuring the Customer and one or other of its competitors, any comparison that has the effect of degrading the qualitative image built by KEYFIRST around its trademarks and distinctive signs; - systematically use the updated graphic charts relating to KEYFIRST Products available on request. - not to create any risk of confusion, in the minds of third parties, in any way whatsoever, the Products stamped with one of the private labels belonging to KEYFIRST and any other KEYFIRST product; - not to reproduce or have reproduced, in whole or in part, any intellectual property rights held by KEYFIRST, under penalty of prosecution, and/or to transmit to third parties any information of any kind whatsoever allowing the total or partial reproduction of these rights. The Customer who is aware of a risk of infringement of the intellectual property rights held by KEYFIRST must immediately inform KEYFIRST by fax or e-mail confirmed by registered letter with acknowledgement of receipt. In the event of the Customer's breach of the obligations as defined in this article, KEYFIRST reserves the right to immediately interrupt any current order and terminate without delay the contract concluded with the Customer, without prejudice to any legal action and claim for damages.
9.4 The Client acknowledges that all elements of any nature whatsoever composing the Site, such as in particular the structure of the Site and its graphic charter, are the property of KEYFIRST and are protected by intellectual property law. KEYFIRST grants the Client a simple non-exclusive right of use of the Site in accordance with its purpose. Any other use of the Site constitutes counterfeiting and is punishable by the Intellectual Property Code, unless KEYFIRST has given its prior and express authorization.
Article 10 - Force majeure and fortuitous event
10.1 KEYFIRST shall be released from its obligations for any event constituting force majeure or a fortuitous event that would prevent or delay the delivery of the Products.
10.2 In the event that all orders are totally suspended for a period of more than one (1) month due to a case of force majeure or a fortuitous event, each party shall have the right to terminate the suspended orders, without any compensation to the other party, provided that it notifies the other party of this termination by registered letter with return receipt requested.
Article 11 - Confidentiality
The parties acknowledge the confidential nature of all information exchanged between them for the execution of orders and undertake to keep it confidential. Confidential Information" means any information transmitted by any means, in the context of the execution of orders. Accordingly, it is understood between the parties that all Confidential Information provided by one party to the other party will be kept by the receiving party in the same manner as it keeps its own confidential information, that such Confidential Information will not be copied or reproduced and that it will only be used for partnership purposes between the parties. Each party undertakes to respect this obligation of confidentiality by all its staff, subcontractors, or any other person who may be involved in the execution of orders. At any time during the partnership, the Confidential Information shall, in accordance with the instructions of the party who transmitted it, either be returned to it within three (3) business days of its request or destroyed. This obligation of confidentiality does not apply to the part of the information: - accessible to the public on the date of its communication by the sending party to the receiving party, or which would be made available to the public after that date and through no fault of the receiving party; - already known to the receiving party at the time of its communication by the sending party; - transmitted to the receiving party with express exemption from the sending party's obligation of confidentiality.
Article 12 - Use of the Website www.KEYFIRST.com
The Site may be modified or updated and access to the Site interrupted, suspended or terminated at any time without prior notice. In this respect, it is specified that any maintenance operation carried out on the Site may disrupt access to and/or operation of the Site. In any event, the Customer acknowledges that he/she is alerted to the technical risks inherent to the Internet and the interruptions in access that may result from it. KEYFIRST cannot be held responsible for any unavailability or slowdown of the Site. KEYFIRST is in any case not in a position to guarantee the continuity of the Site's functionalities, which the Client acknowledges. Under no circumstances may KEYFIRST's liability be engaged by the Client in this respect. KEYFIRST shall in no way be held liable for the impact of these disruptions of access and/or functionalities of the Site on the Customer's activity.
Article 13 - Data processing
13.1. Processing of CLIENT business data by KEYFIRST The Customer is informed that the collection and processing of business data concerning him/her is necessary for the creation of a "KEYFIRST" account as well as for the processing and follow-up of his/her orders, after-sales service for the Products ordered, marketing management and customer relations for his/her User Account. Business data may include information that allows the CLIENT's agents to be identified (e.g. e-mail address). The CLIENT undertakes to communicate to KEYFIRST such personal data within the limits of what is necessary for the proper implementation of the Parties' relationship. Data concerning the Customer may be transmitted to KEYFIRST service providers or suppliers for the purposes of order processing and after-sales service as well as for marketing and customer relationship management purposes, it being specified that some of these providers or suppliers are located outside the European Union. KEYFIRST is responsible for and receives the processing of the CLIENT's business data.
13.2 Processing of personal data by the CLIENT The Client is solely responsible for the obligations that may fall to him/her with regard to the processing of personal data that he/she operates in the context of the resale of Products purchased from KEYFIRST. KEYFIRST cannot be held liable in any way for this.
Article 14 - Miscellaneous provisions
14.1. The fact that either Party does not invoke against the other Party any of the provisions of the Pro GTCs shall not be interpreted as a waiver of the right to invoke or benefit from it at a later date.
14.2. The Customer is required to diversify its sources of supply. The Client undertakes to inform KEYFIRST in writing of the fact that the volume of purchases made with KEYFIRST represents or exceeds 15% of its total purchase volume. As no exclusive supply or purchase quota obligation is imposed by KEYFIRST on the Customer, KEYFIRST's liability may in no way be engaged by the Customer when the latter is in a situation of economic dependence due to a strategic choice and/or a commercial policy that it has freely implemented.
14.3. The Client undertakes to inform KEYFIRST of its possible membership of a group and of any acquisition of control and/or participation in its company directly or indirectly by a third party if this modification is likely to create or aggravate a risk of economic dependence.
14.4. The Parties expressly refrain from disclosing, directly or indirectly, any information concerning the other party, in particular concerning the specific conditions of sale that may be granted to third parties, except to comply with legal obligations. Where applicable, the party concerned by the request for disclosure shall inform the other party.
14.5. Except in the event of a compulsory assignment in the context of a collective procedure to which it would be subject, each party may not assign all or part of its obligations without the prior written consent of the other Party.
14.6. The Parties acknowledge that the partnership is neither an association nor a franchise by either party to the other. Under no circumstances shall a party be considered directly or indirectly as an employee, representative, or agent of the other party.
14.7. In the event that one or more provisions of these GTC are considered null and void or declared invalid pursuant to a law, regulation or following a final decision of a competent court, the other provisions shall retain their full force and scope.
Article 15 - Applicable law and attribution of jurisdiction
15.1. The contract between the parties is governed by French law.
15.2 In the event of a dispute, the parties shall endeavor to come together in order to find an amicable solution.
15.3. The parties agree that, by way of derogation from the applicable legal provisions, any dispute that may arise between the parties shall be time-barred within one (1) year from the date on which it arises.
15.4. Any dispute as to their validity, interpretation or execution shall be submitted to the exclusive jurisdiction of the Commercial Court of Romans/Isère (26100), notwithstanding multiple defendants, warranty claims and emergency proceedings. However, KEYFIRST reserves the right to have recourse to any other competent court of its choice.