1 – Definitions
The term “AQUACLIMB” represents the brands AquaClimb®, AquaZip’N® and AquaNinja® operated by the company PYRAMIDE. For purposes of the present general terms and conditions of sale, “AQUACLIMB” means “the company PYRAMIDE”.
PYRAMIDE, is a corporation with registered office at 5 rue Gutenberg 91070 BONDOUFLE – France (Telephone: +33(0)1 69 11 67 78 – mail: info@aquaclimb.eu – SIRET: 34432740800029 – VAT ID number: FR39344327408).
« Professional » means any natural or legal person, public or private, who acts for purposes falling within the scope of their commercial, industrial, craft, liberal or agricultural activity, including when acting in the name or on behalf of another professional.
« Non-Professional » means any natural person who acts for purposes that do not fall within the scope of their commercial, industrial, artisanal, liberal or agricultural activity.
« Customer » means a natural or legal person concluding a Contract with AQUACLIMB for the purchase of the Products, acting as a Professional or Non-Professional.
« Contrat » means the contract for the sale of Products concluded between AQUACLIMB and the Customer following the placing of an order by the Customer on the AQUACLIMB Online Site.
« Conditions » means the general conditions of sale of AQUACLIMB described in this document.
« Products » refers to the products marketed on the Site that AQUACLIMB must provide in accordance with the Terms and the Contract.
« Site » means the “aquaclimb.eu” website
2 – Scope
These Conditions apply to all orders for Products placed on the Site and govern the contractual relationship between AQUACLIMB and the Customer.
Any order of Products on the Site implies the unreserved acceptance of the Conditions by the Customer, who acknowledges having read them prior to the validation of the order, and renunciation by the Customer of their own conditions of purchase, whatever the terms, even in the event that the Customer has sent AQUACLIMB conditions of purchase or any other document. No particular condition may prevail over the Conditions, except with prior written acceptance by AQUACLIMB.
AQUACLIMB reserves the right to adapt or modify the Conditions at any time.
The applicable Conditions are those in force on the day of the Customer’s order. With each new order, the Customer is invited to carefully read the Conditions in force at the time of purchase.
These Conditions do not affect the rights of Non-Professionals when they are a matter of public policy.
3 – Products marketed on the Site
The Products offered on the Site are new. The offers are valid within the limits of available stock.
AQUACLIMB reserves the right to modify at any time and without notice the Products marketed on the Site.
Sales offers including promotional offers are valid as long as they are announced on the Site.
Prior to any order, the Customer may consult the essential characteristics of the Products marketed on the Site. The description of each option is indicative and the Customer is informed that the colors may vary between the color indicated and the color applied to the Product.
The Customer has the possibility for certain Products to choose an option, in particular a color different from that presented on the Site.
Photographs and their content do not fall within the scope of the contract. AQUACLIMB cannot be held liable if errors occur. Likewise, any typographical or clerical error, any omission in the commercial documentation, the prices, the acceptance of the order, the invoice or any other document or information issued by AQUACLIMB may be corrected without the responsibility of AQUACLIMB being engaged.
4 – Price of the Products
The prices of the Products are those specified on the Site. They are indicated in Euros, ex-factory.
Prices are subject to change(s) during the year, it being understood that the Products ordered are invoiced on the basis of the price in force at the time of placing the order.
Promotion codes to be indicated before placing the order allow you to benefit from a discount on all or certain Products offered for sale. Discounts granted may be limited in time and never apply to delivery charges.
5 – Identification of the Customer – Order – Formation of the Contract
Identification of the Customer
To place an order, the Customer must identify themselves by opening or logging into a user account, which includes the entry of an identifier (username and e-mail address) as well as a password.
The Customer undertakes to provide AQUACLIMB with accurate and reliable information. AQUACLIMB cannot be held liable at any level whatsoever, in the event that the information provided proves to be false or incomplete.
The Customer is solely and fully responsible for the use and confidentiality of their username and password: the Customer must ensure that only the persons authorized by them have access to their account. As such, any use of the Customer’s account is deemed to have been made by them or with their authorization.
The Customer must notify without delay any security breach related in particular to the involuntary communication or the misappropriation of their username and / or password, so that the appropriate measures to remedy this breach can be taken. In the event of loss or misappropriation of a username and password, a procedure for assigning new access codes will be implemented upon notification by the Customer.
Order
To place an order, the Customer selects Products, selects the desired quantity, chooses from several options to determine the color of the Product ordered and adds them to the cart.
The Customer can then consult and check the contents of the cart and, if necessary, make any useful changes (addition or deletion of a Product, modification of quantity, etc.) or correct any errors.
The “Total Cart” reminds the Customer of the price of the Products and indicates the delivery costs of all the Products.
If the Customer continues the order, they fill in billing and/or delivery information.
To finalize the order, the Customer proceeds to payment and chooses a payment method.
The Customer then validates the order by clicking on the “Order” button, after having read the Conditions and the Privacy Policy of the Site by ticking respectively the corresponding boxes.
AQUACLIMB recommends that the Customer edit and save the Terms, which may be printed.
The Customer acknowledges having the full capacity to commit themselves under the Conditions when they place an order on the Site.
For Non-Professionals, the Customer certifies to be an adult natural person by placing an order on the Site.
The Customer may at any time consult and modify their account information, in particular manage their delivery addresses. The Customer can also view their order by accessing the “Orders” section.
Formation of the Contract
As soon as AQUACLIMB registers the order, the Customer will receive a detailed acknowledgment of receipt of it.
In the event that the Customer has opted for payment by credit card, this acknowledgment of receipt will be worth validation of the order by AQUACLIMB and will validate the transaction subject to payment of the order.
In the event that the Customer has opted for payment by bank transfer, this acknowledgment of receipt will only be a confirmation of consideration of the order by AQUACLIMB and not a validation of the order. The order will become final upon receipt of payment and processing by AQUACLIMB.
In the event that the Customer has opted for payment by bank check, this acknowledgment of receipt will only be a confirmation of consideration of the order by AQUACLIMB and not a validation of the order. The order will become final upon final receipt of payment and processing by AQUACLIMB.
The validation of the order definitively forms the Contract.
For any information relating in particular to the follow-up of the order, the Customer is invited to contact AQUACLIMB by phone: 01.69.11.67.78 or by email: info@aquaclimb.eu
6 – Payment
Terms of payment
Orders are only validated upon receipt of payment of the price by AQUACLIMB.
All orders are payable in Euros.
The Customer can pay for the order using the following payment methods:
– credit card: the Customer enters the data of their credit card. All bank data entered is subject to secure processing and is encrypted. This information is only accessible to the AQUACLIMB provider, so that they can contact the Customer’s bank. AQUACLIMB does not have access to the Customer’s bank details at any time;
– bank transfer: the Customer issues a transfer to the bank details indicated by AQUACLIMB indicating the reference of the order in the wording of the transfer. The order is pending until confirmation by AQUACLIMB that payment has actually been received.
AQUACLIMB reserves the right to suspend or cancel any order and/or delivery, in the event of non-payment of any sum due by the Customer within 5 working days of receipt of the order (for orders by bank transfer or check) or in the event of a payment incident.
Payments delays and incidents
In the event of non-payment for the order or in the event of a payment incident, without prejudice to any other right or remedy at its disposal, AQUACLIMB reserves the right to suspend or cancel the order and/or delivery, regardless of its nature and level of execution.
Any delay in payment by a Professional Client will give rise to a fixed compensation of 40 Euros for recovery costs set by Decree of the French State No. 2012-1115 of October 2nd,2012. This amount may be reassessed in the event of a change in the decree.
From the due date of the invoice, AQUACLIMB will charge late payment penalties to the Professional Customer, in an amount equal to the interest rate applied by the European Central Bank to its most recent refinancing operation plus 10 percentage points, until full payment.
Any delay or incident of payment will result in the payment of the late payment compensation described above, in addition to legal interest and possible legal costs, without prejudice to any action for damages. All costs incurred by AQUACLIMB resulting from a dispute in the context of a recovery of unpaid invoices from a Professional Customer will be borne by this Customer.
7 – Delivery
Delivery time
An indicative shipping date will be provided to the Customer during the validation of the order.
AQUACLIMB will make every effort to execute the Contract within the deadlines defined at the time of the order. The deadlines begin at the validation of the order by AQUACLIMB. However, it is specified that compliance with deadlines is not the essence of the Contract.
Deliveries are usually made by a carrier mandated by AQUACLIMB or by post, depending on the nature of the Product. The Products delivered are accompanied by a delivery note.
The Products are delivered to any valid address indicated by the Customer when placing the order. Certain delivery locations, indicated on the Site, may be subject to the payment of additional costs, notified in the order confirmation.
It is the Customer’s responsibility to check the delivery address they indicate before placing an order, as well as the addresses indicated on all communications that AQUACLIMB sends and to report without delay any error or omission.
If AQUACLIMB is unable to deliver the order, or in the event of a postponement of delivery, AQUACLIMB will immediately inform the Customer.
For Professional Customers, any delays do not give the Customer the right to cancel the order, refuse the Product or claim damages, except for special and exceptional cases, within the framework of a precise contract and except in cases of force majeure.
In accordance with the legal provisions, in the event of late delivery, Non-Professional Customers benefit from the possibility of termination of the Contract under the terms and conditions defined in Article L.216-2 of the French Consumer Code
Inspection of packages at the time of delivery :
Upon delivery of the order, it is recommended that the Customer check in the presence of the carrier:
– the number of packages in relation to the delivery note, which must correspond exactly;
– the condition of the Products by opening the packages in front of the carrier even if the packages do not seem damaged.
Any reservations must be precise and mention the nature and extent of the damage (e.g., damaged plug, missing references, etc.) as well as the quantity for each missing or damaged reference.
Any reservations must be notified first on the delivery receipt given to the driver of the truck, then by registered letter with acknowledgment of receipt addressed to the carrier, confirming these reservations, at the latest within three (3) days of receipt of the package.
Otherwise, the Products will be considered delivered in good condition and no recourse against the carrier will be possible.
The handwritten formula “subject to unpacking or damage” has no value and does not allow an appeal to be brought.
8 – Retention of title and transfer of risk
Retention of title
AQUACLIMB retains full ownership of the Products until full payment of the price of the order and this regardless of the date of delivery of the Products, it being specified that the mere delivery of a payment document does not constitute a payment within the meaning of this clause.
If the retention of title clause is implemented, all sums paid to AQUACLIMB before this implementation remain the property of AQUACLIMB.
Transfer of risks
For Non-Professional Customers, the transfer of risk takes place upon receipt of the Products.
For Professional Customers, the transfer of risks is made upon arrival of the Products at the place of delivery before their unloading.
The Customer undertakes to store the Products in a place with all the characteristics necessary to do so.
9 – Right of withdrawal
Subject to the provisions of Article L.221-18 of the French Consumer Code, no order accepted by AQUACLIMB may be cancelled by the Customer.
The Non-Professional Customer has a withdrawal period of fourteen (14) full days from the date of delivery to exercise this right and request a refund of the price paid. Where the period of fourteen days expires on a Saturday, Sunday or a public holiday or non-working day, it shall be extended until the first following working day.
To exercise the right of withdrawal, the Non-Professional Customer must notify their decision to withdraw, by contacting AQUACLIMB’s sales department in advance by telephone at 01.69.11.67.78 or by email at retractation@aquaclimb.eu, using the withdrawal form that will then be sent by AQUACLIMB. This duly completed form, without any omission, must be sent by email to retractation@aquaclimb.eu or by registered letter with acknowledgment of receipt to AQUACLIMB c/o PYRAMIDE, 5 rue Gutenberg 91070 BONDOUFLE, France.
This right of withdrawal is not to be motivated or justified. On the other hand, the mere return of the Product without declaration or the refusal to take delivery are not sufficient to express the desire to withdraw.
Any return must be notified in advance to AQUACLIMB which advises the Customer to return the Products to the address that will be communicated, under cover of an insurance guaranteeing, if necessary, the compensation of the Products up to their real market value in case of spoliation or loss during transport.
In the event of a return, AQUACLIMB also advises its Customers to protect the original packaging of the Products by inserting them into another packaging, because only the Products returned in their entirety (accessories, instructions, etc.) and in their original packaging will be taken back. All returned Products must be intact and in perfect condition for resale in new condition.
Any Product that has been used, damaged, soiled, incomplete, or whose original packaging has been damaged, will not be refunded.
Returned Products must be accompanied by the purchase invoice.
Are excluded from the right of withdrawal, in accordance with Article L.221-28 of the French Consumer Code:
– products that are not returned in their complete original packaging
– products which, by their nature, cannot be re-sent or which have been used;
– products that after being delivered and by their nature, are inseparably mixed with other items.
The Customer has a period of fourteen (14) days following the sending of the withdrawal to return the Products to AQUACLIMB. This right of withdrawal is exercised without penalty, with the exception of the costs and risks of return transport which remain the responsibility of the Customer.
For Products that cannot be returned by La Poste due to their nature (parcels of more than 30 kg or bulky, for example), the price to be paid for the return of the Products may vary depending on the carrier chosen, the type of Product and the distance to be travelled by the carrier to collect the Product and bring it back to the AQUACLIMB warehouse. The Customer is advised to contact the carriers to find out the exact cost of the service.
In the event that the return is made after the deadline, AQUACLIMB reserves the right to refuse the packages and / or return them if necessary.
In case of exercise of the right of withdrawal, AQUACLIMB will reimburse the Customer within fourteen (14) days of receipt of the returned Products, using the same means of payment as that used by the Customer for the initial transaction, unless expressly agreed by the Customer for the refund to be made by another means of payment.
10 – Intellectual Property
The sale of the Products will not result in the transfer to the Customer of the intellectual property rights attached thereto.
The content of the Site (texts, graphics, logos, icons and images, writings and other codes implemented on the Site) is the property of AQUACLIMB and is protected by the laws relating to copyright, the protection of databases, by any other law in force in France and by any European or international treaty.
It is forbidden to modify, copy, distribute, distribute, use all or part of the Site or any other intellectual property right related thereto, or use any logo or brand reproduced on the Site.
Any unauthorized use of any of the elements of the Site is likely to engage the responsibility of the Customer, whatever the basis.
11 – Force majeure
AQUACLIMB cannot be held liable and cannot constitute contractual non-performance due to any delay, any failure to perform or any contractual obligation charged to AQUACLIMB if the delay or non-performance is related to causes beyond AQUACLIMB’s reasonable control.
Cases of force majeure or fortuitous events shall be considered to be events beyond the control of the parties, which they could not reasonably have been required to foresee and which they could not reasonably avoid or overcome, in so far as their occurrence makes it totally impossible to perform the obligations.
In particular, the following events are assimilated to cases of force majeure or fortuitous events relieving AQUACLIMB of its obligation to deliver within the time initially provided for: strike by all or part of AQUACLIMB’s staff or its usual carriers, natural disaster (storm, flood, etc.), explosion, fire, war or threat of war, customs embargoes on export or import, production stoppages due to accidental breakdowns, breakage of tools, impossibility of being supplied by a supplier, accident, sabotage, insurrection, riots, acts of terrorism, epidemics, pandemics, thaw barriers, roadblocks, utility suppliers’ strike or supply disruption, closure of factory, governmental fiat, legal provisions, statutes, regulations, prohibitions or any measure of any kind imposed by a state, a local authority or parliamentary.
In such circumstances, AQUACLIMB will notify the Customer in writing, in particular by e-mail, within a reasonable time after the occurrence of the events. The Contract between AQUACLIMB and the Customer will then be automatically suspended without compensation, from the date of occurrence of the event.
If the event lasts more than thirty (30) days from the initial date of occurrence, the Contract may be terminated by the most diligent party, without either party being able to claim damages. This termination will take effect on the date of first presentation of the registered letter with acknowledgment of receipt denouncing the Contract.
12 – Warranty
Guarantee of hidden defects applicable to all Customers
The Customer benefits from the legal guarantee of unacceptable defects under the conditions provided for in articles 1641 to 1649 of the Civil Code.
Article 1641 of the French Civil Code: “The seller is bound by the guarantee for hidden defects of the thing sold which make it unfit for the use for which it is intended, or which so diminish this use, that the buyer would not have acquired it, or would have given only a lower price, if he had known them“.
Article 1648, paragraph 1 of the French Civil Code: “The action resulting from latent defects must be brought by the purchaser, within two years from the discovery of the defect”.
The defect must be prior to the sale and the Customer has the choice to return the Product and have the price refunded or to keep the Product and have part of the price returned.
Legal guarantee of conformity applicable only to Non-Professional Customers
In accordance with Articles L.217-4 and following of the French Consumer Code, the legal guarantee of conformity applies to the Products sold on the Site.
Article L.217-5 of the French Consumer Code: “The good is in conformity with the contract:
1° If it is fit for the use usually expected of similar property and, where applicable,
whether it corresponds to the description given by the seller and has the qualities which the seller has presented to the buyer in the form of a sample or model;
if it has the qualities that a buyer can legitimately expect in view of the public statements made by the seller, by the producer or by their representative, in particular in advertising or labelling;
2° Or if it has the characteristics defined by mutual agreement by the parties or is suitable for any special use sought by the buyer, brought to the attention of the seller and that the latter has accepted».
AQUACLIMB thus reminds the Non-Professional Customer that within the framework of the legal guarantee of conformity:
– the Customer has a period of two years from the delivery of the Product to act;
– the Customer can choose between repairing or replacing the Product, subject to the cost conditions provided for in Article L.217-9 of the French Consumer Code;
– it is exempted from providing proof of the existence of the lack of conformity of the Product during the six months following its delivery. This period is extended to twenty-four months from 18 March 2016.
The Non-Professional Customer is also informed that the legal guarantee of conformity applies independently of the commercial guarantee that may possibly cover the Product. The Customer may decide to implement the guarantee against Product hidden defects in accordance with Article 1641 of the French Civil Code; in this case, they can choose between the resolution of the sale or a reduction of the sale price in accordance with Article 1644 of the French Civil Code.
Implementation of safeguards
The implementation of the guarantees must be the subject of a written request from the Customer explaining the defects found. Under penalty of inadmissibility, this request must imperatively be accompanied by the invoice and must be sent to AQUACLIMB according to the modalities indicated in Article 13 below.
13 – Complaints / Returns
Apart from the problems of transport damage (which concern the carrier alone), any other claim relating to a manufacturing defect, an inaccuracy in the quantities or an erroneous reference in relation to the order, must be made imperatively within forty-eight (48) working hours upon receipt of the Products. The complaint may only relate to the replacement of the defective Products or a rectification of the quantities or references of the Products ordered.
Requests should be made to AQUACLIMB by phone at 01.69.11.67.78, by email: reclamation@aquaclimb.eu, or by registered letter with acknowledgment of receipt to AQUACLIMB, Complaints Department, c/o PYRAMIDE 5 rue Gutenberg 91070 BONDOUFLE, France.
AQUACLIMB will indicate to the Customer the procedure to follow. In the event that a return of Product proves necessary and that the responsibility of AQUACLIMB is engaged, the return costs will be borne in full by AQUACLIMB.
Any return of Product requires the prior agreement of AQUACLIMB.
Products returned by the Customer without physical protection or poorly protected will not be able to benefit from the guarantee. It is therefore the Customer’s responsibility to ensure that the Products returned during transport are protected and insured. It is the Customer’s responsibility to keep the packaging and accessories supplied with the Product as well as any labels affixed to the Product or packaging and which will be necessary to benefit from the guarantee offered.
In the event that the return is made after the deadline, AQUACLIMB reserves the right to refuse the package(s), and/or return it/them to the Customer if necessary.
14 – Limitation of liability applicable to Professional Clients
Except in the case of personal injury or death caused by AQUACLIMB’s negligence, AQUACLIMB’s liability for contractual fault, inaccurate (non-fraudulent) statement or any other reason may not exceed the price of defective or undelivered Products invoiced by AQUACLIMB.
AQUACLIMB’s liability is expressly excluded in the event of indirect damages, impossibility of placing an order, loss of income or profits.
15 – Personal Data
In application of the French law in this area and the General Data Protection Regulation (GDPR EU 2016/679), AQUACLIMB recalls that the Customer acknowledges, before proceeding with the order, having fully read the privacy policy of the Site, which specifies the processing carried out by AQUACLIMB as well as all the rights of any user.
Personal data collected by AQUACLIMB are used for the sole purpose of processing and honoring the order. All personal data collected by AQUACLIMB for the processing of the order are secure and are only accessible to a limited number of people including in particular the agency in charge of the Website.
This data may be communicated to any AQUACLIMB partners responsible for the execution, processing, management and payment of orders.
The customers’ bank details used for the payment of the order are encrypted and are not accessible to AQUACLIMB. Only the entities in charge of AXEPTA payment services provided by BNP PARIBAS Bank are responsible for the processing of this data.
The Customer has, in accordance with the national and European regulations in force, a right of permanent access, modification, deletion, rectification and opposition with regard to the information concerning them. The Customer also has the right to contact the national authority in charge of the protection of this data.
This right can be exercised by sending a registered letter with acknowledgment of receipt to: AQUACLIMB c/o PYRAMIDE – 5 rue Gutenberg 91070 BONDOUFLE, France or an email to AQUACLIMB Customer Service: service.client@aquaclimb.eu
16 – General provision
Insolvency of the Customer
In the event of the Customer’s insolvency, and without prejudice to any action or right at its disposal, AQUACLIMB may cancel the Contract and suspend any delivery that is the subject of the Contract without its liability being incurred.
Divisibility
If one or more provisions of these Terms are held to be invalid or declared as such pursuant to any law, regulation or final decision of a competent court, the remaining provisions shall retain their full force and scope.
The parties then agree to replace the invalid or invalid clause with a clause that will be closest in content to the clause initially adopted
No Waiver
The fact that AQUACLIMB does not avail itself at a given time – regardless of the duration of its abstention or tolerance – of any of the provisions provided for in these Conditions shall not be interpreted as a waiver of its right to avail itself of it in the future and may not restrict its rights.
17 – Applicable Law – Jurisdiction Assignment – Mediation
The interpretation, validity and execution of the Terms will be governed by French law exclusively.
In the event of a dispute, an amicable solution will be sought before any legal action.
In case of failure, the dispute will be brought:
– before the courts on which the head office of PYRAMIDE (Evry-91, France) depends if the Customer is a Professional;
– before the court designated by the rules of common law if the Customer is a Non-Professional.
The Non-Professional Customer may submit the dispute to the Consumer Mediation. To see a list of Consumer Mediators, the Non-Professional Customer may consult the web page of the French Commission for the Evaluation and Control of Consumer Mediation:
https://www.economie.gouv.fr/mediation-conso/commission.
The Non-Professional Customer may also initiate the mediation process via the online dispute resolution platform developed and managed by the European Commission at the following address:
https://webgate.ec.europa.eu/odr/main/?event=main.home.show.