THERMO TRAINING ROOM, a limited liability company with a capital of €100,000, whose head office is located at 5, rue Castiglione, 75001 Paris, registered with the Trade and Corporate Register of Paris under number 754 066 579 (hereafter "THERMO TRAINING ROOM" or "the Seller"), is a company specialised in the purchase and sale of sports and functional rehabilitation equipment.
THERMO TRAINING ROOM has exclusively developed and commercialised the concept of a training room, or cabin, for physical activity, sports and functional rehabilitation. This concept is registered with the French National Industrial Property Institute (Institut National de la Propriété Industrielle, INPI), and currently in the process of being registered internationally under the PCT (Patent Cooperation Treaty). This concept, hereafter "the Product", is aimed for general use in venues such as sport gyms and clubs, gymnastic centres, rehabilitation centres, and other functional rehabilitation centres.
By the present general terms and conditions of sale for the Product, we hereby understand by "Buyer", Consumer Buyers who purchase the Product for their own personal needs (hereafter "Consumer Buyer") and Buyers with no technical Product knowledge, who purchase the Product for their professional activity (hereafter "Non-Professional Buyer").
Article 1: Application of the General Terms and Conditions of Sale – Enforceability
The present general terms and conditions of sale form the basis for the commercial negotiation between THERMO TRAINING ROOM and each Buyer. They are systematically sent or provided to each Buyer, in order to enable the said Buyer to place an order for a Product.
These terms and conditions override the conditions of purchase, unless otherwise formally agreed in writing by THERMO TRAINING ROOM. Any condition to the contrary invoked by the Buyer will therefore, failing an express prior agreement, be unenforceable against THERMO TRAINING ROOM, and this regardless of when the said condition is brought to its attention.
That THERMO TRAINING ROOM does not avail itself at any given time of one or other of the provisions of the present general terms and conditions of sale cannot be interpreted as a the company renouncing its right to avail itself in the future of any of the provisions of the said general terms and conditions.
Article 2: Orders
To be considered valid, orders must specify the number of Products purchased, the total Product price, a price breakdown of the various Product components, the cost of shipping and any other customs duties and delivery costs, the cost of installing the Product at the Buyer’s premises, the conditions of payment, and finally, the delivery date and location.
Orders are considered definitive only when they have been confirmed in writing (fax, e-mail), and after a deposit of 50% of the invoiced amount has been paid, and this even when the orders are taken by the intermediary of THERMO TRAINING ROOM representatives or employees.
Unless otherwise agreed, the order confirmation entails the Buyer’s acceptance of the present THERMO TRAINING ROOM general terms and conditions of sale, acknowledgement that the Buyer has been made perfectly aware of these terms and conditions, and renouncing their right to avail themselves of their own terms and conditions of purchase.
The rights obtained by placing an order are specific to the Buyer and cannot be transferred without the agreement of THERMO TRAINING ROOM.
Article 3: Order Modification
Any order modification or cancellation requested by the Buyer can only be taken into consideration if the said modification or cancellation is notified in writing, prior to the dispatch of the Product.
If THERMO TRAINING ROOM does not accept the modification or cancellation, deposits paid will not be returned.
In the event that the Product is purchased by a Consumer Buyer, as defined by the French Consumer Code, and financed by a credit governed by Articles L.311-1 and subsequent of the same code, the Product sale is deemed definitive only after approval from the financing entity, and in the absence of a retraction by the Consumer Buyer within a period of fourteen (14) days from the acceptance of the said Buyer’s order, in compliance with the provisions of Article L311-12 of the French Consumer Code. Delivery will therefore not take place before the expiration of this retraction period.
Beyond the time frame of three (3) months after the confirmation of the order, THERMO TRAINING ROOM reserves the right to modify the Product and these general terms and conditions of sale at any time, and to modify the models listed in its prospectus or catalogues without prior notice.
Article 4: Price
The Product is sold at the price listed the moment the order is placed. It is expressed in Euros, and takes into account the VAT applicable on the day the order is placed.
Any rate change will be applied to the price of the Product or services.
Unless otherwise agreed, prices specified in the order are valid for a maximum period of one (1) month.
Unless otherwise agreed, prices are net, including shipping but excluding tax, on the basis of rates communicated to the Buyer.
Article 5: Delivery
In compliance with the order, the Product is delivered to the site specified by the Buyer to THERMO TRAINING ROOM, except in the event of circumstances attributable to the Buyer, or an instance of force majeure. Delivery is conditional on the deposit having been received in full by THERMO TRAINING ROOM, and on the Buyer providing all information required by THERMO TRAINING ROOM on signing the purchase order and necessary for completing delivery (specifically installation accessibility within the premises).
As of the Product’s delivery to the Buyer, the use of the Product for functional rehabilitation, fitness, rest and relaxation purposes, is under the sole responsibility of the Buyer and the Buyer’s users.
5.2 Delivery Schedule
a) Deliveries are made on the basis of availability and in the order that orders are received. THERMO TRAINING ROOM is authorised to proceed with either full or partial deliveries.
Delivery time frames are specified as precisely as possible, but remain subject to THERMO TRAINING ROOM’s available supply.
Exceeded delivery times cannot result in compensation for damages and interest, or retention.
b) If the Product has not been delivered one (1) month after the indicated delivery date for any reason other than an instance of force majeure, the sale may then be cancelled at the Non-Professional Buyer’s request or THERMO TRAINING ROOM’s request.
In this case, the Non-Professional Buyer will be able to obtain a refund of the deposit paid, without any other indemnity, or compensation for damages and interest.
c) By exception to the above, the Consumer Buyer, and only the Consumer Buyer, will be able to request the cancellation of the sale in the event of a delay exceeding 7 days from the agreed delivery date for any reason other than an instance of force majeure, in compliance with Article L.114-4 of the French Consumer Code, and thereby obtain a refund of the deposit, excluding any other indemnity, or compensation for damages and interest.
In this case, the sale contract will be considered void upon THERMO TRAINING ROOM’s receipt of the registered letter with return receipt requested in which the Consumer Buyer informs the company of its decision to cancel, as long as delivery has not taken place between the sending and receiving of the said letter. Only the Consumer Buyer may exercise this right, and must do so within a period of sixty working days from the indicated Product delivery date.
d) The following are considered instances of force majeure that exonerate THERMO TRAINING ROOM from its delivery obligation: war, riots, fire, strikes, accidents, and the impossibility for the company to obtain supplies.
THERMO TRAINING ROOM will keep the Buyer informed, as and when possible, of any above-listed instances and events.
In all cases, delivery can only take place within the time frames specified if the Buyer has fulfilled all of its obligations towards THERMO TRAINING ROOM, regardless of the cause.
The Products are to be delivered and installed, at the site indicated by the Buyer. They are transported at the risk of THERMO TRAINING ROOM.
As of the Product’s on-site installation, risk for loss and wear is transferred to the Buyer.
The Product is delivered and installed within the Buyer’s premises, which may entail an additional quote depending on the accessibility difficulties that may be encountered.
The Buyer is required to verify the condition of the various components of the delivered Product upon reception, and in the event of an anomaly, must notify the shipping company of any reservations and complaints by indicating these on the delivery receipt, by extrajudicial document, or by registered letter with return receipt requested. This notification must take place within three (3) days following delivery, not including holidays, in compliance with Articles L.133-1 and subsequent of the French Commercial Code.
Once the Product has been installed, in the event of any defects or flaws, the Buyer must make all necessary declarations and declare any reservations by extrajudicial document or by registered letter with return receipt requested to the shipping company, and this within three (3) days following receipt of the merchandise.
In all cases, the Buyer will inform THERMO TRAINING ROOM thereof immediately.
Article 6: Reception
Without prejudice to the provisions taken in regards to the shipping company, claims for obvious defects, the non-compliance of the Product delivered or of the waybill, must be formulated in writing:
- Within eight (8) days of the Product delivery, if referring to a replacement part
- Within one month of the Product delivery, if the claim refers to a complete room
The Buyer will have to provide all supporting material proving the existence of the flaws or defects detected. .
The Buyer will have to facilitate THERMO TRAINING ROOM’s procedures to assess and remediate these flaws. The Buyer will abstain from intervening, or from calling in a third party to this effect.
Article 7: Returns
Any Product return must be the object of a formal agreement between THERMO TRAINING ROOM and the Buyer. Any Product returned without this agreement would be made available to the Buyer, and would not result in a credit note. The Buyer is always responsible for all costs and risks associated with the return.
No return will be accepted after a period of one (1) month following the delivery date.
All returned Products must be accompanied by a return slip that must be attached to the package; returned Products must be in the same condition in which they were delivered by the supplier.
Should the Buyer refuse delivery once the Product is at the delivery address, or should the Buyer delay the delivery date, the Product will be considered delivered and the outstanding sum of the price will be invoiced on the date the Product is made available.
The Product will then be stored free of charge for a period of one (1) month.
Beyond this time frame, storage and second delivery costs could be invoiced after a formal notice is sent to the Buyer by registered letter with return receipt requested, asking the Buyer to take possession of the Product.
Any return accepted by THERMO TRAINING ROOM will result in a credit note being issued to the Buyer, after a qualitative and quantitative verification of the components of the returned Product. The Buyer will lose any deposits paid for returns that do not comply with the above-mentioned procedure.
In the event of an obvious defect or the non-compliance of the delivered Product, duly ascertained by THERMO TRAINING ROOM according to the conditions specified above, the Buyer will be able to obtain a Product replacement free of charge, or a reimbursement for the Product, excluding any indemnity, or compensation for damages and interest.
Article 8: Guarantee
Subject to normal use and maintenance conditions, in compliance with the operating manual provided to the Buyer, and without prejudice to the compliance guarantee in the Consumer Buyer’s interest, according to the modalities of Articles L 211-1 and subsequent of the French Consumer Code, and to the warranty of title and the warranty against latent defects in the interest of both the Consumer Buyer and the Non-Professional Buyer, according to the modalities of Articles 1626 and subsequent of the French Civil Code, and 1641 and subsequent of the same Code, the Product (replacement part or complete room) is guaranteed according to the following modalities:
• The infrared heating system is guaranteed for a period of two (2) years for professional use, and for ten (10) years for private use • The room and the electrical material (digital control panel, audio equipment, and lighting) are guaranteed for a period of two (2) years for both professional and private use.
• Labour and on-site Product installation are guaranteed for a period of one (1) year:
From the delivery date of the replacement part or the date upon which the Product is put into operation (complete room) and accepted on the acceptance slip.
Actions taken in application of the guarantee cannot result in extending the duration of the said guarantee.
In application of this guarantee, the only obligation incumbent to THERMO TRAINING ROOM will be to provide the no-cost replacement or repair of the Product or component that has been recognised as defective (at the company’s discretion), unless this mode of compensation proves impossible or disproportionate.
To benefit from the guarantee, all Products must first be subject to THERMO TRAINING ROOM’s after-sales service, whose approval is necessary for any replacement.
Any eventual shipping costs are at the Buyer’s expense, who cannot claim any compensation of any sort in the event of equipment down-time due to the application of the guarantee.
The guarantee does not apply to obvious defects.
Defects and deterioration provoked by the following are also excluded:
- Normal wear
- An accident external to the replacement part or the Product, to their use and maintenance according to the original specifications as provided to the Buyer by THERMO TRAINING ROOM in its technical manual
- A modification of the Product that is either unanticipated or not specified by THERMO TRAINING ROOM, or carried out by the Buyer
- The consequences of errors made in assembling, or the poor installation, by the Buyer or by a third party that intervened at the Buyer’s request, as well as the consequences of an error on the part of a Product user
Article 9: Invoicing
In the event of the sale of individual parts, an invoice is made for each delivery and delivered at the same time as the said delivery.
In the event of the sale of the Product, an invoice is issued and delivered at the end of each work stage agreed between THERMO TRAINING ROOM and the Buyer, and following the following stages: i) deposit ii) delivery, installation and reception of the Product
Article 10: Payment
Unless otherwise agreed, payments will be made as follows:
I) Upon placing the order: deposit of 50% of the total price
II) Delivery, installation and reception: the remaining balance of 50% of the total price
In the event of a deferred payment, a payment in the sense of the present article is not the simple provision of a bill of exchange or a cheque implying an obligation to pay, but rather the payment completed on the agreed upon payment due date.
10.2 Delay or Default
In the event of a late payment, THERMO TRAINING ROOM will be able to suspend all current orders, without prejudice to any other course of action.
Any sum that is not paid by the Buyer by the due date specified on the invoice entails ipso jure, the application of penalties for an amount equal to two and a half times the legal interest rate, and this as of the day following the payment date indicated on the said invoice.
These penalties will be due upon the simple request by THERMO TRAINING ROOM, without prejudice to other compensation for damages and interest that THERMO TRAINING ROOM may be entitled to claim from the Buyer.
In the event of a payment default, forty-eight (48) hours after a formal notice that has remained unanswered, THERMO TRAINING ROOM will be entitled to terminate the sale ipso jure, and to request the immediate return of the Product, without prejudice to all other compensation for damages and interest. The termination will not only affect the order in question, but also any previously unpaid orders, whether delivered or in the process of being delivered, and whether their payment is due or not. Also, for payments scheduled in instalments, the failure to pay a single instalment will require that the entire outstanding debt be paid immediately, without the issuing of a formal notice.
In all of the cases specified above, sums due for other deliveries, or for any other reason, will become immediately due if THERMO TRAINING ROOM does not opt to terminate the corresponding orders.
The Buyer will have to reimburse all costs incurred for the debt collection of sums due, including all legal counsel and legal professionals’ fees.
Payments may not in any case be suspended, or the object of any sort of compensation, without prior written agreement from THERMO TRAINING ROOM. Any partial payment will first be applied to the non-privileged part of the debt, then to the sums whose due dates are oldest
Unless the special condition of sale accepted by both parties prior to the sale is implemented, THERMO TRAINING ROOM does not consent to any discount for payments made in cash or at a date earlier than that required by the general terms and conditions of sale.
10.3 Requiring Guarantees or Payment
Any deterioration in the Buyer’s credit could justify the requirement of guarantees or cash payments prior to fulfilling the orders received.
This will be the case if a modification, transfer, lease, pledge or contribution of business assets has an unfavourable effect on the Buyer’s credit.
Article 11: Reservation of Ownership
THE PRODUCT DESCRIBED ABOVE IS SOLD UNDER RESERVATION OF OWWNERSHIP, IN COMPLIANCE WITH THE PROVISIONS OF THERMO TRAINING ROOM’S GENERAL TERMS AND CONDITIONS OF SALE. THE BUYER ACKNOWLEDGES RECEIPT AND ACCEPTANCE OF THE SAID TERMS AND CONDITIONS.
IN THE EVENT THAT THE BUYER FAILS TO PAY ALL OR PART OF A SINGLE INSTALMENT, THE CONTRACT WILL BE TERMINATED IPSO JURE AT THERMO TRAINING ROOM’S REQUEST BY A SIMPLE REGISTERED LETTER ADDRESSED TO THE BUYER.
THE RETURN OF THE UNPAID PRODUCT MUST BE MADE BY THE DEFAULTING BUYER, AT THE SAID BUYER’S EXPENSE AND RISK, UPON RECEIPT OF A FORMAL NOTICE FROM THERMO TRAINING ROOM SENT BY REGISTERED LETTER.
IN THE EVENT THAT THERMO TRAINING ROOM WOULD HAVE TO CLAIM THE PRODUCT, THE COMPANY WILL NOT BE REQUIRED TO REFUND THE DEPOSITS RECEIVED UNTIL THEY CAN COMPENSATE THEMSELVES FOR DAMAGES AND INTEREST DUE BY THE BUYER (EITHER BY THE APPLICATION OF A PENAL CLAUSE, OR FOR RESTITUTION OR REHABILITATION COSTS) OR THE VALUE OF THE PRODUCT THAT HAS BEEN UNDULY ALTERED BY THE BUYER.
THE BUYER WILL HAVE TO OPPOSE ANY CLAIMS THAT THIRD PARTY CREDITORS COULD HAVE ON THE PRODUCT SOLD BY THE PRESENT CONTRACT, AND ADVISE THERMO TRAINING ROOM THEREOF AS SOON AS POSSIBLE.
THE BUYER HAS THE RIGHT TO USE THE PRODUCT SOLD UNDER RESERVATION OF OWNERSHIP IN THE CONTEXT OF A PRIVATE OR PROFESSIONAL USE.
THE BUYER MUST REFRAIN FROM TRANSFORMING, INCORPORATING OR ASSEMBLING THE PRODUCT BEFORE HAVING PAID FOR IT IN FULL. SHOULD THE BUYER FAIL TO OBSERVE THIS PROVISION, THERMO TRAINING ROOM MAY IMMEDIATELY EXERCISE ITS RIGHT TO CLAIM OWNERSHIP OF THE PRODUCT.
THE BUYER AGREES TO INSURE THE PRODUCT SOLD UNDER CONDITION OF OWNERSHIP TO THE BENEFIT OF WHOMSOEVER IT WILL BE BELONG TO, AGAINST ALL RISKS THAT IT COULD INCUR OR OCCASION UPON ITS DELIVERY/INSTALLATION.
THE BUYER IS RESPONSIBLE FOR THE PROPER MAINTENANCE OF THE PRODUCT SOLD UNDER RESERVATION OF OWNERSHIP, AND WILL ASSUME ALL REHABILITATION COSTS, SHOULD THE BUYER HAVE TO RETURN THE PRODUCT UNPAID.
THERMO TRAINING ROOM RESERVES THE RIGHT TO VERIFY AT ANY TIME, AND BY THE MEANS OF ITS CHOICE, THAT THE BUYER HAS COMPLIED WITH THE OBLIGATIONS SPECIFIED IN THE PRESENT ARTICLE.
IF ONE OF THESE PROVISIONS SHOULD PROVE INVALID OR UNENFORCEABLE TO THIRD PARTIES, IT IS AGREED THAT THIS WILL HAVE NO EFFECT ON THE REST OF THE RESERVATION OF OWNERSHIP CLAUSE, WHICH WILL BE APPLICABLE.
THE PRESENT RESERVATION OF OWNERSHIP IS CONSIDERED AN ACCESSORY TO THERMO TRAINING ROOM’S CLAIM, AND CAN THEREFORE BE FREELY ASSIGNABLE OR TRANSFERRED WITH IT.
Article 12: Jurisdiction – Dispute
French law governs the present general terms and conditions of sale.
In the event of a dispute concerning the interpretation or execution of their agreements, the parties will seek an amicable agreement before taking any legal action, and to this effect will communicate all necessary information to each other.
FAILING AN AMICABLE AGREEMENT OF THE DISPUTE WITHIN A MAXIMUM PERIOD OF THREE (3) MONTHS, THE ONLY COURTS WITH JURISDICTION IN THE EVENT OF A LITIGATION OR DISPUTE RELATIVE TO THE CREATION OR EXECUTION OF THE ORDER, WILL BE THE COURTS WITHIN THE JURSIDICTION OF THE PARIS COURT OF APPEAL, UNLESS THERMO TRAINING ROOM PREFERS TO SUBMIT THE CASE TO ANOTHER COURT HAVING JURISDICTION.
THIS CLAUSE APPLIES EVEN IN THE EVENT OF INTERIM PROCEEDINGS, INCIDENTAL CLAIMS, MORE THAN ONE DEFENDANT, OR IMPLEADINGS, REGARDLESS OF THE MODE OR MODALITIES OF PAYMENT, AND WITHOUT THE JURISDICTION CLAUSES EXISTING ON THE BUYER’S DOCUMENTS BEING ABLE TO PRESENT AN OBSTACLE FOR THE APPLICATION OF THE PRESENT CLAUSE.