1. COMPANY
Monesty (hereinafter referred to as Monesty) is a limited liability company under Luxembourg law, with its registered office at 7, rue Michel Rodange, L-4660 Differdange, Luxembourg (Grand Duchy of Luxembourg), registered with the Luxembourg Trade and Companies Register under number B289079 and whose VAT number is LU36004540.
2. ACCEPTANCE OF THE GENERAL TERMS AND CONDITIONS OF SALE
These general terms and conditions of sale (GTCS) apply to any order for products, including but not limited to, any pilates equipment (the Products), placed with Monesty (the Order) by any person other than a consumer within the meaning of Article I.1, 2° of the Economic Law Code (the Client).
Any Client who places an order for Products with Monesty is deemed to have read and accepted these GTCS upon confirmation of their order, in whatever form. These GTCS prevail over any other document of any nature whatsoever, and in particular over all general terms and conditions of purchase of the Client, unless expressly and priorly agreed otherwise in writing by Monesty. The fact that Monesty does not invoke one of these GTCS at a given time cannot be interpreted as a waiver of its right to invoke all or part of these GTCS.
The Client and Monesty are defined as the Parties and, individually, as a Party.
The Parties expressly and irrevocably exclude the application of the Vienna Convention on the International Sale of Goods to the Order.
3. DEFINITIONS AND INTERPRETATION
Capitalized terms have the meaning attributed to them under these GTCS.
The headings and titles in these GTCS are for convenience only and should not be taken into account in interpreting the provisions of these GTCS.
The original version of the GTCS was drafted in French. If the GTCS are translated into English, Dutch, German or any other language, the French version shall prevail between the Parties.
A reference to a Clause or an Appendix is a reference to a clause or an appendix of the GTCS and/or appendices that the Parties have mutually and expressly agreed to incorporate into these GTCS. In this case, the Appendices form an integral part of the GTCS and any reference to the GTCS includes the Appendices and vice versa.
When using the terms "including", "notably" or "in particular", the Parties do not intend to limit the general scope of what precedes.
A reference to an entity is a reference to a legal entity, whether or not it has legal personality, and also includes all successors and assigns of that entity.
A reference to a person is a reference to an individual or an entity, and also includes all successors and assigns of that person.
The terms "herein", "hereby", "hereunder", "hereto" and similar terms refer to the GTCS as a whole and not to a particular Clause, paragraph or other subdivision of the GTCS.
A reference to the euro or EUR is a reference to the official currency of Belgium on the date on which the sale is concluded between the Parties, it being understood, however, that if this currency is no longer the official currency of Belgium on the date on which an amount becomes due and payable under or in connection with these GTCS, the euro or EUR shall be deemed to refer to its equivalent in the official currency of Belgium on that date (unless the receiving Party notifies the other party in writing that it still wishes to be paid in euros, assuming that currency still exists on that date).
To the extent applicable and unless expressly stated otherwise, all amounts communicated by Monesty to the Client are exclusive of value added tax (VAT).
In the event of difficulty in interpretation, the rules provided for in articles 5.64 and 5.65 of the Civil Code apply. Article 5.66 of the Civil Code and 1602 of the former Civil Code are excluded. No Clause of these GTCS may be interpreted against a Party solely because it was drafted by that Party or because it was negotiated in favor of a Party.
Unless expressly stated otherwise, the deadlines provided for in these GTCS are calculated from the day following the day on which the event triggering the deadline occurred. The expiration date is included in the duration. However, if this day does not fall on a working day, the expiration date is postponed to the next working day. A period determined in months or years is calculated from one day to the day preceding that day.
4. ORDERS
Offers and/or quotes communicated by Monesty are non-binding and the placement of an order by the Client will constitute an offer to contract.
Unless otherwise stated, any quote communicated by Monesty to the Client remains valid for a period of ten (10) days. However, the Client may extend the validity of the quote for a single period of twelve (12) months upon payment of an amount equivalent to 10% of the Total Price (the Deposit). The Deposit will remain the definitive property of Monesty upon payment, even if the Order is not placed by the Client.
No Order will be final and no contract will be formed between the Parties until Monesty communicates an express written confirmation of the Order to the Client.
5. PRICE, PAYMENT AND REFUNDS
The Products are sold at the price exclusive of tax indicated on the quote or, in the absence of a quote, on the website https://pilatesme-france.com (the Base Price).
The Total Price means the Base Price, increased by (i) the applicable VAT, if any, (ii) delivery costs, and (iii) all other costs, fees and/or taxes due in order to fulfill and deliver the Order.
Unless otherwise indicated upon confirmation of the Order, the Total Price must be paid by the Client to Monesty by bank transfer to the bank account communicated in writing by Monesty. The Total Price is due according to the following terms:
-
if the Products are in stock on the date of confirmation by Monesty of the Order (the Contract Date), the Total Price is due in full on the Contract Date, after deduction, if applicable, of the Deposit;
-
if the Products are not in stock on the Contract Date, 50% of the Total Price is due on the Contract Date, after deduction, if applicable, of the Deposit (the Advance Payment). The remaining 50% is due as soon as Monesty notifies the Client that the product is in stock. Alternatively, the Client may choose to pay 100% of the Total Price on the Contract Date; and
-
all payments must be made in euros. Bank charges related to international transfers are the responsibility of the Client.
If the Client fails to pay any sum due within 5 working days following the payment due date, Monesty will have the right to terminate the Order by simple notification to the Client, in which case the Deposit, the Advance Payment and any other payment made by the Client to Monesty will remain definitively acquired by Monesty.
Failing termination of the Order by Monesty and without prejudice to other penalties provided for by the Law of 2 August 2002 concerning the fight against late payment in commercial transactions, a lump sum indemnity equivalent to 10% of the Total Price will be due by the Client and late payment interest of 15% per year will be due by the Client on the Total Price, without prior formal notice. The Order will also be automatically suspended until full payment of any amount due by the Client to Monesty.
Any refund will be, if applicable, decided at Monesty's discretion. Any refund granted will be exceptional and will in no way constitute a right to another refund.
6. DELIVERIES
No Order will be shipped before receipt of the Total Price, in accordance with the stipulations of these GTCS.
The Client communicates the delivery address of the Products to Monesty in writing when placing the Order.
Monesty delivers the Products within a reasonable time, taking into account the conditions of each Order, and chooses the delivery method for the Order at its discretion. Any delivery time and/or method communicated by Monesty to the Client is purely indicative and cannot under any circumstances be considered as resulting in an obligation of result for Monesty to deliver the Products within the communicated time and according to the communicated delivery methods.
Delivery is made to the address indicated by the Client on the ground floor (curbside), without unloading or installation. Transport and insurance costs are borne by the Client, unless expressly agreed otherwise in writing by Monesty. In the event of impossibility of access to the agreed location (traffic jam, oversized truck, etc.), Monesty may charge all actual costs made necessary thereby, including all personnel costs.
Without prejudice to any discount granted exceptionally and in writing by Monesty, delivery costs are borne by the Client. If the actual delivery costs prove to be higher than the estimated delivery costs mentioned in any communication between Monesty and the Client, the Client must reimburse the difference to Monesty.
Monesty undertakes to:
-
inform the Client of the evolution of the estimated delivery date of the Order, from the Order Date until the date of shipment to the delivery address communicated by the Client (the Shipment), and only upon specific request from the Client, which can be communicated bi-monthly at most. To avoid any doubt, any request from the Client based on this Clause will only entitle them to be informed once;
-
send a shipping notice including tracking details to the Client as soon as the Order is Shipped;
-
inform the Client without delay in case of delivery delay and communicate the new delivery date; and
-
package the product appropriately. If, at the Client's request, specific packaging is used, the costs related to this packaging will be due by the Client to Monesty, even if they have not been subject to a quote.
Any order for Products other than personalized Products may be cancelled by the Client until Shipment. In case of cancellation and unless otherwise decided by Monesty in writing, the Advance Payment will remain the definitive property of Monesty.
7. TRANSFER OF RISKS – CONFORMITY
From the Order Date, the Products are transported and unloaded at the Client's risk. The Client must be available at the time of the carrier's arrival at the delivery address.
Unless expressly stated otherwise in these GTCS, the Products are sold in a normal condition for goods of the same nature. Monesty does not provide any guarantee as to the performance, lifespan, use and/or aging of the Products. Monesty is also not responsible for unforeseeable, unusual and/or indirect damage resulting from the execution of the Order, nor for any damage resulting from maintenance not in accordance with Monesty's instructions.
Any lack of conformity and/or hidden defect existing at the time of delivery must be notified by the Client to Monesty in writing within seventy-two (72) hours from delivery, in the case of visible defects, or from its discovery, in the case of hidden defects and, in all cases, within two (2) years after the delivery date. This notification must include a precise description of the defect and/or hidden defect, supported by photographic evidence. Failure to notify within this period is equivalent to an acceptance of the defect and/or hidden defect by the Client.
8. PILATES&ME WARRANTY
Notwithstanding Clause 7 above, Monesty grants a specific warranty to the Client in the event of purchases of Pilates&Me brand products (the Warranty). Under the Warranty, the Client may, at their discretion, request the repair or replacement of the defective part of the Pilates&Me brand Products (the Warranty) in the event of the following defects and within the limits indicated below:
-
all manufacturing defects affecting the structures (frames, chassis, wooden or aluminum frames) of professional pilates machines appearing within five (5) years from the delivery of the Products concerned, for all Products other than foldable models, and within three (3) years from the delivery of the Products concerned, for foldable models;
-
all manufacturing defects affecting the coverings, fabrics and foams of professional pilates machines appearing within ninety (90) days from the delivery of the Products concerned; and
-
all manufacturing defects affecting any other part, including accessories (small equipment, barrels, arcs, handles, straps, etc.), of professional pilates machines, appearing within two (2) years from the delivery of the Products concerned.
Any repair and/or replacement does not extend the duration of the Warranty.
Notwithstanding the foregoing, the Warranty does not cover defects, faults or damages resulting from misuse or abnormal use, incorrect assembly, installation and/or maintenance not in accordance with Monesty's instructions, accidents, falls, shocks, fires, water damage, external causes, negligence, lack of maintenance, storage in a humid, outdoor and/or extreme temperature environment, failure to replace springs every two (2) years, unauthorized modifications or repairs and/or normal wear and tear of consumable parts by the Client.
Any defect covered by the Warranty must be notified by the Client to Monesty in writing within thirty (30) days of its discovery. This notification must include a precise description of the defect, supported by photographic evidence. Failure to notify within this period is equivalent to an acceptance of the defect by the Client.
The Warranty is not cumulative with the warranty of conformity provided for in articles 1604 et seq. of the former Civil Code and/or the warranty against hidden defects provided for in articles 1641 et seq. of the former Civil Code. Any claim by the Client based on the Warranty and covered by it for any defect and/or fault constitutes an express and irrevocable waiver by the Client of any other legal and/or contractual warranty chargeable to Monesty for this defect and/or fault.
9. LIMITATION OF LIABILITY
Except in cases of fraud and/or gross or intentional misconduct on its part, Monesty's liability will, in all cases, be limited to the Base Price, increased, if applicable, by VAT.
Beyond the Warranty provided in Article 8 and the defects of conformity and hidden defects referred to in Article 7, Monesty's liability can only be invoked by the Client in the event of proven fault and, then, only for direct material damage, to the exclusion of any other damage, without Monesty's liability exceeding the amount exclusive of tax invoiced for the order concerned. In any event, Monesty cannot be held responsible for intangible and/or indirect damages (including, and without this indication being limitative, moral damages, loss of profit, loss of orders, loss of earnings and/or commercial and/or reputational disturbances).
Any claim in connection with, arising out of, and/or relating to the negotiation, conclusion and/or execution of the Order, may only be brought against the Parties. No person who is not a designated Party shall have any liability for (i) obligations or liabilities arising out of, relating to, or in connection with the Order, or for (ii) any claim based on, relating to, or arising out of the Order or its negotiation or signing, and each Party waives and releases any and all liability, claims and obligations with respect to any such person.
10. FORCE MAJEURE
Neither Party shall be liable for any failure to perform any of its contractual obligations if such failure results from an event of force majeure. In all cases, the following shall be considered as events of force majeure, without this list being exhaustive:
-
natural disasters, fires, floods, storms, explosions;
-
wars, acts of terrorism, riots, civil unrest, acts of vandalism;
-
pandemics, epidemics, contagious diseases leading to confinement measures, business closures or transport restrictions;
-
total or partial strikes, lockouts, social conflicts affecting Monesty, its subcontractors or its transport providers;
-
major breakdowns or disruptions of transport networks, postal or logistics services, telecommunications or electricity networks;
-
decisions or measures by a public authority (import or export bans, administrative closures, embargoes, regulatory restrictions) affecting the manufacture, supply or delivery of the Products;
-
exceptional shortages of raw materials or components essential for the manufacture of the Products; and
-
any delay in delivery of the Products due to the producer and/or carrier of the Products and free from any fault on the part of Monesty.
In the event of an occurrence of force majeure preventing or delaying the performance of all or part of the obligations of one of the Parties, the performance of the affected obligations shall be suspended for the duration of the force majeure event, without liability or compensation being due by that Party.
Each Party shall inform the other Party of the occurrence of a force majeure event within a reasonable time from becoming aware of it, indicating, as far as possible, the nature of the event and its estimated duration. The affected Party shall make reasonable efforts to limit the consequences of the force majeure event and resume performance of its obligations as soon as circumstances permit.
11. RETENTION OF TITLE CLAUSE
The delivered Products remain the property of Monesty until full payment, including ancillary costs and taxes. The Client therefore undertakes not to grant any guarantee, pledge or collateral on the Products to any third party and undertakes to mention them in its inventories as belonging to Monesty, if applicable.
It is specified that the delivery of bills of exchange or any other instrument creating an obligation to pay does not constitute payment. In the event of seizure by third parties of these Products, the Client undertakes to immediately inform the bailiff seizing of Monesty's ownership of these Products, as well as Monesty of the seizure, and to implement all measures likely to preserve Monesty's ownership right over the Products concerned.
12. RETURNS
All returns made in accordance with these GTC must be shipped according to the instructions communicated by Monesty and, at the latest, thirty (30) days after the Client has communicated the notifications referred to in Clauses 7 and 8 to Monesty.
All return, delivery, expertise, storage, packing and picking costs shall be borne by the Client, except in the event of a defect and/or fault attributable to Monesty under these GTC, in which case Monesty shall bear such costs.
Any refund payable by Monesty will be paid within fifteen (15) days from the final determination of the applicable regime for any potential defect and/or fault. Failing contrary instructions communicated by the Client within this period, the refund will be made to the same bank account from which the Total Price was paid.
All returns of Products not attributable to Monesty are subject to administrative and transport fees of 200 euros.
Monesty shall have the right to retain all Products concerned by a return until full payment by the Client of all fees due by the Client to Monesty.
13. PROTECTION OF PERSONAL DATA AND CONFIDENTIALITY
Monesty and the Client undertake to comply with the legal provisions in force regarding the protection of personal data and in particular Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and the Law of 30 July 2018 on the protection of natural persons with regard to the processing of personal data. In the event that personal data is processed by Monesty, the Client undertakes to obey its instructions. Monesty, as a personal data processor, will comply with the Client's instructions regarding data processing. In this case, the parties undertake to conclude an annex on personal data protection.
Monesty processes personal data in accordance with its privacy policy, which can be viewed via this link: https://pilatesme-france.com/policies/privacy-policy.
Each Party undertakes to treat as confidential and not to disclose to third parties, without the prior written consent of the other Party, all commercial, financial and technical information exchanged between the Parties within the framework of the Order, including prices, quotes, specifications, configurations and correspondence (the Confidential Information). This obligation does not apply to information that (i) is or becomes publicly accessible other than through a breach of this Clause, (ii) was already in the lawful possession of the receiving Party prior to its disclosure, (iii) is lawfully obtained from a third party not bound by a confidentiality obligation, or (iv) must be disclosed pursuant to a legal, regulatory obligation or a judicial decision, subject to prior notification to the other Party insofar as possible. This confidentiality obligation remains in force throughout the term of the contractual relationship and for a period of three (3) years following its termination.
14. INTELLECTUAL PROPERTY
The Parties expressly agree that the Order does not transfer, assign or license any intellectual property rights between them.
Each Party retains full, entire and exclusive ownership of all its intellectual, industrial and commercial property rights, including copyrights, patents and supplementary protection certificates, trademarks, trade names, domain names, designs and models, as well as know-how, trade secrets and any other confidential technical or commercial information.
This retention of ownership applies to both rights held by each Party prior to the Contract Date and those it developed on its own behalf.
15. NOTIFICATIONS
Unless otherwise stated, all notifications made under these GTC will be by e-mail, to the e-mail address previously communicated by the Client and, for Monesty, to the address info@pilatesme-france.com.
The date of receipt of the e-mail will be considered as the date on which the notification was made.
16. SUBCONTRACTING
Monesty reserves the right to resort to subcontracting.
Monesty's representatives and sales delegates are only intermediaries and are not authorized to validly commit Monesty; they are not authorized to receive payments, unless expressly and previously authorized by Monesty in writing.
17. ASSIGNMENT OF CLAIMS
The Client may not transfer or pledge its rights under any Order without Monesty's prior written consent.
18. MODIFICATION OF THE GTC
Monesty may modify these GTC at any time. The applicable GTC are those in force on the date of the Order.
19. MISCELLANEOUS
If one or more provisions of these GTC is (are) deemed illegal, invalid or unenforceable, in whole or in part, under any applicable law, that provision shall be deemed not to be part of these GTC, and the legality, validity or enforceability of the remainder of these GTC shall not be affected. The Parties shall make every effort to replace the invalid or unenforceable provision with a valid and enforceable provision, the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.
These GTC (and the documents referred to therein) contain the entire agreement between the Parties regarding its subject matter and supersedes all prior agreements, communications, offers, proposals or correspondence, written or oral, exchanged or concluded between the Parties regarding the same subject matter from the Date of the Contract.
20. APPLICABLE LAW - JURISDICTION CLAUSE
Client orders to Monesty are subject to Belgian law. In the event of any dispute or claim of any kind relating to the formation or execution of an order placed by a Client, only the French-speaking Courts of Brussels shall have jurisdiction.