General terms and conditions

Article 1 – Scope

The present General Terms and Conditions (hereinafter “GTC”) apply, without restriction or reservation, to all sales concluded by FIZIMED (hereinafter the “Merchant”) with non-professional consumers and buyers (hereinafter the “Customer” or “Customers”) wishing to purchase the products (hereinafter the “Product” or “Products”) offered for sale by the Merchant:

  • the Emy Kegel trainer;

by immediate purchase or by placing an order or via the website (http://www.fizimed.com, hereinafter the “Website”).

In particular, the present GTC specify the conditions for immediate purchases, placing orders, payments, discounts, and the delivery of Products ordered by Customers.

The Customer acknowledges having the legal capacity to enter into a contract and purchase the Products offered on the Website.

The Customer agrees that any information required for the execution or conclusion of the contract will be transmitted electronically.

The main characteristics of the Products (in particular, technical specifications and illustrations) are presented in the catalogs of the Merchant or on the Website. The Merchant shall not be held liable for any of the photos or illustrations found in its catalogs or on the Website. Customers must refer to the Product descriptions to discover the main properties and specifications of each Product.

Product offers are subject to availability.

The present GTC are enforced independently of all other terms and conditions, in particular those applicable to sales on the Internet or through other sales and marketing channels.

The present GTC are always communicated to Customers prior to immediate purchases or the placement of an order and shall prevail, if necessary, over any other version or any other document.

The Customer acknowledges having read and accepted the present GTC before an immediate purchase or the placement of an order by checking the box provided for this purpose before continuing with the online ordering process, as well as the terms and conditions of the Website. As the present GTC are subject to change, the version applicable to Customer purchases is the version that is in force on the date of the immediate purchase or the placement of the order.

Unless proven otherwise, the data saved in the IT system of the Merchant constitutes proof of all transactions concluded with the Customer.

As per the French Data Protection Act of January 6, 1978, and the guidelines of the GDPR (General Data Protection Regulation), which came into effect on May 25, 2018, Customers may, at any time, exercise their right to access, rectify, erase, or object to the processing of their personal data, or reuse their personal data for their own purposes, by addressing a letter by mail with proof of their identity to FIZIMED, 8 rue Gustave Adolph Hirn, 67000 STRASBOURG.

By validating their order, Customers accept the present GTC without restriction or reservation.

The Customer acknowledges having the legal capacity to enter into a contract and purchase the Products offered on the Website.

Article 2 – Orders – Immediate purchases

Customers are responsible for selecting the Products they wish to order, as per the following conditions:

  • Orders may be placed online via the Website;
  • Orders may be placed online via FIZIMED applications for tablets and smartphones.

No order addressed to FIZIMED by any other means, including by mail or email, will be taken into account.

While placing an order, after selecting and adding Products and/or services to their shopping cart, Customers must:

  • verify their shopping cart and if necessary correct its contents (Product names, quantities, and prices, delivery terms and fees, etc.);
  • validate their shopping cart;
  • enter their contact information;
  • choose a delivery method;
  • accept the terms and conditions and their obligation to pay for the order.

Customers must accept the contractual information before validating their order.

Product offers are valid as long as they are visible on the Website but are subject to availability.

The sale will only be considered final once the Customer has received an order confirmation from the Merchant by email and the Merchant has received the full payment for the order.

For orders placed on the Internet, an order is registered on the Website of the Merchant when the Customer accepts the present GTC by checking the box provided for this purpose and validates the order. The Customer has the opportunity to verify the details of the order (including the total price) and to correct any errors before validating the order (Article 1127-2 of the French Civil Code). By validating an order, the Customer accepts the present GTC in their entirety and is bound by the contract of sale.

The Customer is therefore responsible for checking the accuracy of the order and immediately reporting any errors.

Any order placed on the Website represents a remotely concluded contract between the Customer and the Merchant.

The Merchant reserves the right to cancel or refuse any order from a Customer if the Customer is involved in an ongoing dispute regarding the payment of a previous order.

Customers can track the progress of their orders on the Website.

Withdrawal period – Exclusions

The right of withdrawal does not apply for the Products and services listed in Article L121-21-8 of the French Consumer Code. Upon receiving an order, the Customer has 14 days to cancel, provided the seals have not been broken and the Product has not been removed from the packaging.

Article 3 – Prices

The Products are sold at the prices found on the price list of the Merchant (in the Annex to the present GTC) on the day of the immediate purchase or the reception of the order by the Merchant. Prices are listed in euros, including and excluding taxes. These prices are set and non-modifiable during their period of validity as indicated on the price list of the Merchant; however, outside this period, the Merchant may modify the prices at any time.

Except for Products picked up by the Customer directly, the prices do not include shipping, handling, and delivery costs which are added to the price of the Products (in accordance with the conditions indicated on the price list of the Merchant) and calculated prior to an immediate purchase or the placement of the order. The Customer is required to pay for the full amount of the order, including these various costs.

The Customer is responsible for all local taxes, dock dues, and customs fees or duties which may be requested to deliver the order.

The Merchant shall provide the Customer with an invoice for all orders, whether they are picked up or delivered.

Article 4 – Terms of payment

The order must be paid in full on the day it is placed by the Customer via one of the following secure payment methods:

  • credit card: Visa, MasterCard, American Express, and others;
  • wire transfer;
  • credit card in multiple installments: Customers can pay by credit card in multiple installments as per the guidelines of the “multiple installments” method, which must be read and accepted before placing an order.

All payment data is encrypted using the Transport Layer Security (TLS) protocol.

In the event of late payments or owed amounts not received by the Customer by the deadlines specified above or by the payment date indicated on the invoice sent to the Customer, the Merchant shall be fully entitled to automatically charge late payment penalties at a monthly rate of 10% of the total amount of the purchase price (including taxes) listed on said invoice, without any formality or prior notice, and demand that the Customer immediately pay all owed amounts, without prejudice to any other action that the Merchant may take against the Customer to this end.

Should a payment deadline pass, the Customer will be required to immediately pay all owed amounts to the Merchant, without prejudice to any other action that the Merchant may take against the Customer to this end.

Orders shall not be considered paid until the Merchant actually receives the amounts that are due from the Customer.

Furthermore, in the event of non-compliance with the payment conditions above, the Merchant reserves the right to suspend or cancel the delivery of any pending orders placed by the Customer.

The Merchant may not charge the Customer any extra costs except those incurred for the use of a payment method.

Article 5 – Provision and delivery of Products

For immediate purchases, Products are delivered within metropolitan France and to the countries listed on the Website to the address indicated by the Customer at the time of the order or purchase.

Customers are responsible for checking with the local authorities of their country to learn of any possible restrictions regarding the importing or use of the Products or services they wish to order.

Delivery consists of granting physical possession or control of the Product to the Customer.

Except in certain special cases (e.g., one or more Products is unavailable), all the ordered Products will be delivered in a single delivery.

The Merchant agrees to do everything in its power to deliver the Products ordered by the Customer within the deadlines indicated above. Nevertheless, these deadlines are only estimates. If the ordered Products have still not been delivered 30 days after the specified delivery date for any other reason except force majeure or the fault of the Customer, the Customer may cancel the order by mail as per Articles L216-2, L216-3, and L241-4 of the French Consumer Code. Any amounts paid by the Customer will be refunded no later than fourteen days after the contract termination date, minus any compensation or deductions.

Deliveries are made by an independent carrier to the address specified by the Customer at the time of the order, provided the address is easily accessible.

Should the Customer request that the order be delivered by a carrier of their choice, delivery shall be deemed complete once the Merchant hands over the Products to the carrier and the carrier has accepted the Products without reservation. The Customer therefore acknowledges that responsibility for the delivery lies with the carrier, and relinquishes the right to file a warranty claim against the Merchant in the event their order is not delivered.

In the event that the Customer submits a special written request to the Merchant regarding the packaging or transportation of the ordered Products, the associated costs will be subject to a separate invoice based on a written estimate that has been accepted by the Customer.

The Customer must verify the condition of all delivered Products. The Customer has 48 hours from the time of delivery to submit a written complaint or claim (by mail, email, or fax) regarding the nonconformity or visible defects of the delivered Products (e.g., a damaged or opened package), accompanied by all the relevant supporting documents (in particular, photos). After this period, and failing to comply with the above formalities, the Products shall be deemed conform and free of any visible defect and no claim shall be accepted by the Merchant.

The Merchant shall refund or replace, as soon as possible and at its own expense, any delivered Products whose nonconformity or visible or hidden defects have been duly proven by the Customer, as per the guidelines of Articles L217-4 et seq. of the French Consumer Code and the present GTC (in particular, “Warranties”).

The Customer therefore acknowledges that responsibility for the delivery lies with the carrier, and relinquishes the right to file a warranty claim against the Merchant in the event their order is not delivered.

Article 6 – Transfer of ownership – Transfer of risks

The transfer of ownership of the Merchant’s Products to the Customer, whether by way of an immediate purchase or an order, shall only take place once the Merchant receives the full payment for the order from the Customer, regardless of the delivery date of the ordered Products.

In the event that the Customer chooses their own carrier independently of the Merchant, the transfer of risks shall take place at the moment the ordered Products are delivered by the Merchant to the carrier chosen by the Customer. Otherwise, regardless of the date of transfer of ownership of the Products, the transfer of the risks of loss and damage associated with the Products shall not take place until the Customer takes physical possession of the Products. In other words, the Merchant assumes the risks of loss and damage associated with the shipped Products.

Article 7 – Liability of the Merchant – Warranty

The Products offered by the Merchant comply with all applicable French regulations and are suitable for use by non-professionals.

Legal warranties

All Products sold by the Merchant benefit from the following legal warranties at no additional charge:

  • the legal warranty against nonconformity, for Products that are visibly damaged or defective or do not correspond to the immediate purchase or order;
  • the legal warranty against hidden defects resulting from a design, material, or production defect that affects the delivered Products and makes them unfit for use as per the terms and conditions outlined below and defined in the Annex to the present GTC (“Warranties against nonconformity and hidden defects”).

In the context of the legal warranty against nonconformity, the Customer has a period of two years from the date of delivery of an order to take action against the Merchant; the Customer may choose between a repair and a replacement of the nonconforming Product, subject to the cost conditions outlined in Article L217-9 of the French Consumer Code; the Customer is not required to provide proof of nonconformity during the twenty-four months following the delivery of the Product, except in the case of second-hand goods, for which this period is set at six months (Article 217-7 of the French Consumer Code).

The legal warranty against nonconformity is applied independently of any sales warranty which may cover the Product.

The Customer may also decide to file a warranty claim for hidden defects in accordance with Article 1641 of the French Civil Code; in this case, the Customer may choose between a cancellation of the sale and a reduction of the sale price in accordance with Article 1644 of the French Civil Code.

To file a claim, the Customer must inform the Merchant (in writing) of the nonconforming Products within the above-mentioned time limits and return the defective Products to the store in the state they were in when received, with all the accompanying pieces (accessories, packaging, user manual, etc.).

The Merchant shall refund or replace those Products or parts under warranty that are deemed to be nonconforming or defective. If the Products were delivered, the shipping fees (from the invoice) will be refunded, while any return shipping costs will be refunded upon presentation of the respective return documents.

Refunds for nonconforming Products or Products with hidden defects will be made as soon as possible, and no later than 30 days after the Merchant detects the nonconformity or hidden defect.

Refunds will be made by check or directly to the bank account of the Customer.

The Merchant shall not be held liable in the following cases:

  • noncompliance with the legislation of the country in which the Products are delivered, which is up to the Customer to verify;
  • misuse, professional use, negligent use, or lack of maintenance by the Customer, as well as normal wear and tear, accidents, and force majeure.

The warranty does not cover:

  • damage due to abnormal use or use that falls outside the scope of the instructions;
  • damage caused by accidents or neglect;
  • damage caused by improper cleaning (i.e., without following the instructions in the user manual);
  • damage caused by rinsing or immersing the charging case in water;
  • damage caused by lightning;
  • unauthorized maintenance, including any attempt to open, repair, or modify a device.

Never try to open the Kegel trainer or the charging case.

To file a warranty claim, please contact the customer service of the company from which you purchased the Products.

In any event, the Merchant warranty is limited to the refund or replacement of Products that are nonconforming or defective.

In order to benefit from these sales warranties, the Customer must be in possession of the invoice for the purchased Products.

Article 8 – Intellectual property – Data processing and rights

8.1 – Intellectual property

The content of the Website is the property of the Merchant and its partners and is protected by French and international laws relating to intellectual property.

Any reproduction of this content, in part or in full, is strictly prohibited and may be considered forgery.

In addition, the Merchant remains the sole owner of the intellectual property rights of all photographs, presentations, studies, drawings, models, prototypes, etc. (even those requested by the Customer) which are produced to fulfill the contract with the Customer. The Customer is therefore prohibited from using or reproducing said photographs, presentations, studies, drawings, models, prototypes, etc. without the express written permission of the Merchant, which may be accompanied by a request for compensation.

8.2 – Data processing and rights

In accordance with the French Data Protection Act of January 6, 1978, personal data must be requested from the Customer in order, in particular, to process orders and create invoices.

This data may be transmitted to partners of the Merchant who are hired to help with the execution, processing, management, and payment of orders.

The processing of data obtained via the Website complies with all legal requirements regarding the protection of personal data, in particular thanks to a computer system that provides for optimal protection of such data.

As per current French and European regulations, the Customer may, at any time, exercise their right to access, rectify, erase, or object to the processing of their personal data, or reuse their personal data for their own purposes.

These rights may be exercised in accordance with the terms and conditions defined on the Website.

8.3 – Evidence and archiving

Unless proven otherwise, the digital logs of FIZIMED shall be considered proof of all exchanges, orders, payments, and transactions between the parties.

FIZIMED archives all purchase orders and invoices on its servers (upon request, a copy can be delivered to the Customer for a fee).

Article 9 – Unforeseeable circumstances

As per Article 1195 of the French Civil Code, in the event that a change in circumstances unforeseeable at the time of the conclusion of the contract makes performance excessively onerous for the party that had not agreed to assume the risk, that party may ask its co-contracting party to engage in a renegotiation of the contract.

However, if the change of circumstances unforeseeable at the time of the conclusion of the contract is permanent or lasts for more than 30 days, the contract will simply be terminated in accordance with the terms defined in “Termination due to force majeure.”

Article 10 – Compulsory enforcement

Contrary to the provisions of Article 1221 of the French Civil Code, the parties agree that in the event of a failure by either party to comply with its obligations, the party that is the victim of the failure shall not be entitled to seek compulsory enforcement of the contract.

In the event of non-compliance with any of the obligations incumbent upon the other party, the party that is the victim of the non-compliance may request that the contract be terminated as per the terms laid out in “Termination of the contract.”

Article 11 – Exception of non-performance

As per Article 1219 of the French Civil Code, either party may refuse to perform its obligations if the other party refuses to perform its obligations and this non-performance is sufficiently serious, i.e., likely to call into question the continued execution of the contract or fundamentally upset its economic balance. The suspension of the contract shall take effect immediately after the defaulting party receives a default notification from the other party specifying its intention to enforce the exception of non-performance for as long as the defaulting party does not resolve the default in question, sent by registered mail with acknowledgment of receipt or any other durable written medium providing for proof of submission.

As per Article 1220 of the French Civil Code, this exception of non-performance may also be used as a preventive measure if it is clear that one of the parties will not perform its obligations by the given deadline and the consequences of such non-performance are sufficiently serious for the party that is the victim of the breach.

The party that takes such a measure assumes all the risks that come with it.

The suspension of the contract shall take effect immediately after the party presumed to be in default receives a notification from the other party specifying its intention to enforce the preventive exception of non-performance until the party presumed to be in default performs its obligations which are likely to not be met by the given deadline, sent by registered mail with acknowledgment of receipt or any other durable written medium providing for proof of submission.

However, if the default is permanent or lasts for more than 6 months from the date of the notification by registered mail, the contract will simply be terminated in accordance with the terms defined in “Termination for breach of contract.”

Article 12 – Force majeure

The parties shall not be held liable in the event that any non-performance or delay with regard to the execution of their obligations, as described herein, results from force majeure as defined by Article 1218 of the French Civil Code.

The party experiencing the force majeure must immediately inform the other party of its inability to perform its obligations and be able to provide proof of the force majeure. The other party may not, under any circumstances, consider this suspension of obligations as grounds for filing a non-performance claim with regard to the obligations in question or requesting compensation for the delay.

The obligations in question are suspended for the duration of the force majeure, as long as the latter is temporary. Consequently, once the force majeure ends, the parties shall make every effort to resume the normal performance of their contractual obligations as soon as possible. The party that suffered the force majeure will therefore inform the other party of its ability to resume its obligations by registered mail with acknowledgment of receipt or any extrajudicial document. If the impediment is permanent, the contract will simply be terminated in accordance with the terms defined in “Termination due to force majeure.”

Article 13 – Termination of the contract

13.1 – Termination for breach of contract

As per Article 1224 of the French Civil Code, a party may, in the event of sufficiently serious non-performance of the obligations incumbent upon the other party, notify the latter by registered mail with acknowledgment of receipt of the termination of the contract due to breach, 30 days after a formal request to perform the obligations has been filed and is still not heeded.

13.2 – Termination due to force majeure

It is expressly agreed that the parties are fully entitled to terminate this contract due to force majeure, without notice or formality.

13.3 – Common provisions relating to termination

Each party agrees to compensate the other party for any services exchanged between the conclusion and the termination of the contract and which were necessary for the execution thereof.

In any event, the injured party may file a claim for damages in court.

Article 14 – Applicable law – Language

The parties expressly acknowledge that the present GTC and any transactions resulting therefrom are subject to and governed by French law.

The present GTC were originally written in French.

In the event of a dispute, the French version shall prevail over any translated versions.

Article 15 – Disputes

Any dispute concerning the validity, interpretation, execution, termination, and consequences of the sales and purchase operations concluded in accordance with the present GTC, and which could not be resolved between the Merchant and the Customer, will be sent for resolution in a court of law.

In the event of a dispute, the Customer may have recourse to traditional mediation, in particular from the French Consumer Mediation Commission (Article L612-1 of the French Consumer Code) or industry-specific mediation organizations, or to any other dispute resolution method (e.g., conciliation).

Article 16 – Pre-contractual information – Customer acceptance

Before purchasing any Product, the Customer acknowledges having been informed of the present GTC and all the information in Article L221-5 of the French Consumer Code, and in particular of the following information, in a clear and comprehensible manner:

  • the main characteristics of the Product;
  • the price of the Products, as well as any additional costs (e.g., delivery);
  • in the event of a delivery, the delivery date or amount of time it will take for the Product to be delivered;
  • information regarding the identity of the Merchant, including its mailing address, email address, telephone number, and applicable activities;
  • information regarding the legal and contractual warranties and the conditions for filing warranty claims;
  • the functionalities of the digital content and, where applicable, its interoperability;
  • the possibility of making use of a traditional mediator in the event of a dispute.

Any natural person (or legal entity) who places an order (including immediate purchases) expressly acknowledges full and complete acceptance of and agreement with the present GTC, as well as the obligation to pay for the ordered Products. In particular, Customers waive the right to submit any document to the Merchant which might release them from these obligations.

Appendix I – Warranties against nonconformity and hidden defects

Article L217-4 of the French Consumer Code

The Merchant is contractually bound to deliver conforming Products and is therefore liable for any nonconformity at the time of delivery. The Merchant is also liable for nonconformity resulting from packaging, assembly instructions, or installation when the latter was executed by the Merchant as part of the contract or overseen by the Merchant.

Article L217-5 of the French Consumer Code

Products must correspond to similar products in terms of use, and, when appropriate, correspond to the description provided by the Merchant, as well as possess the qualities presented to the Customer in the form of samples, prototypes, or communication materials (in particular, advertisements and labels) by the Merchant, the producer, or a representative of the Merchant.

Otherwise, the Products must possess the characteristics defined by mutual agreement between the parties or be suitable for a special use requested by the Customer and validated by the Merchant.

Article L217-12 of the French Consumer Code

Customers can benefit from a nonconformity claim for up to two years after the Product is delivered.

Article L217-16 of the French Consumer Code

If, within the period of the sales warranty that was granted to the Customer during the purchase or reparation of the Product, the Customer requests a refurbishment from the Merchant that is covered by the warranty, any inaction on the part of the Merchant of seven days or more will be added to the remaining duration of the warranty. This period will start from the date of the Customer’s request or the date the Customer makes the Product available for repair if this date comes later.

Article 1641 of the French Civil Code

The Merchant is liable for hidden defects that make a Product inappropriate for its intended use, or which so hamper this use that the Customer would not have purchased the Product, or would have requested a discount if they had known about the hidden defects.

Article 1648 paragraph 1 of the French Civil Code

Customers can benefit from a defect claim for up to two years after the defect is detected.

 

GTC updated on 06/10/2018

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