1 -- OBJECT - APPLICATION OF GENERAL CONDITIONS --
1.1 -- Object -- These general conditions (the "General Conditions") aim to define the conditions under which W.C.C., a limited liability company with a capital of 10,000 euros, having its registered office at ZA de l’Hermitière, 4 B rue de l’Epine, 35230 Orgères, registered with the Rennes Trade and Companies Register under number 807 745 302 ("WCC"), intends to market vinyl records pressed on demand by its customers (the "Clients"), as well as, where applicable, printed covers, printed booklets, and printed center labels affixed to these records (the "Products"). WCC may have to use third-party service providers for the execution of various technical tasks during the pressing and printing process (engraver, galvanizer, printer, etc.).
1.2 - Application of the General Conditions - Any sale of Products concluded between WCC and a Client is subject to these General Conditions. The conclusion of an order implies the Client's unconditional acceptance of the entirety of the General Conditions. WCC and any given Client may, by specific agreement, derogate from the General Conditions.
1.3 - Prevalence - The General Conditions prevail over any general purchasing conditions of the Client (regardless of their designation), even if they have been communicated to WCC. Any Client waives the right to rely on its general purchasing conditions. WCC and any Client agree to exclude the provisions of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980, as they may be applicable.
2 - ORDERS --
2.1 - Accepted Quote - Any order will be irrevocably formed upon acceptance by the Client of a Quote (as defined below), materialized by sending said signed Quote to WCC, bearing the mention "Approved". A "Quote" is a written document, prepared and sent to a Client by WCC, clearly stating that it constitutes a legal offer for sale, detailing the following sales conditions of Products to a Client: quantity of Products, their format or size, their delivery and/or shipping deadline to the Client, their mode of transport, the place and address of delivery, where applicable the supply by WCC of test discs ("test-pressings") and/or test prints of covers, booklets and center labels in paper or cardboard format, and the overall sale price. A Quote is valid for 30 days and may be accepted within this period by the Client who is the recipient.
2.2 - Conclusion Terms - In order to obtain a Quote, a Client may either fill out an online form on the WCC website (http://www.mcommusique.com/) and send it to WCC, or send their precise request to WCC by any other means of communication (email, mail, telephone contact or on WCC's premises). An online form filled out by a Client constitutes a simple request for a Quote, and the price communicated by the WCC website on this occasion is indicative only. The communication of a Quote by WCC and its acceptance by the Client may be made by any means of written communication and on any durable medium (including email). An order for Products cannot be concluded in the form of an electronic contract in accordance with the procedure described in Articles 1369-1 and following of the French Civil Code.
2.3 - Minimum Order - Final Quantity Variation - Any Quote and any order for Products will relate to a minimum of one hundred (100) discs and corresponding prints. The Client accepts that due to the inherent uncertainty of printing services (errors, etc.), the final dnumber of printed Products may vary downward by up to 5%. This variation will result in a price adjustment as specified in Article 3.4.
2.4 - Documents and Data to be Sent to WCC - Any order placed as indicated above obliges the Client to communicate without delay to WCC the following elements without which WCC will not initiate any production process:
1/ payment, even before receipt of the invoice, of 100% of the price indicated in the Quote excluding Price Adjustment (as defined in Article 3.3),
2/ the "master" data containing the music to be engraved on the discs (in electronic format ".ddp" or "mastered in the studio", in perfect condition in accordance with the usual quality standards),
3/ the graphic elements to be printed on the covers, booklets, and center labels, integrated by the Client in "CMYK 300 dpi" format exclusively, in the template provided for this purpose by WCC,
4/ all required attestations from collective rights management societies (such as SDRM or any other equivalent society or organization, including abroad) justifying the payment of the rights corresponding to the works that will be reproduced as part of the order, and, where applicable, all other justifications of the Client's ownership of the exploitation rights related to these works.
’exploitation relatifs à ces oeuvres.
3 – PRICES --‐
3.1 – Prices in force – The prices of the Products are those in force on the day of acceptance of the Quote by the Client. The unit price scale of the Products will be communicated by WCC upon request. The prices of products and services which, due to their specificities (including, for example, test discs ("test-pressing") and/or test prints of covers, booklets, and labels), cannot be integrated into these scales, will be determined based on the relevant Quote. WCC reserves the right to modify its rates at any time. The revised rates will apply to all subsequent orders. The price indicated in the Quote and invoice relating to a given order is a single and indivisible price for that order and all the Products concerned.
3.2 – Taxes, fees, packaging, transport(s) – The prices are in euros (€) and, unless otherwise indicated, are expressed exclusive of tax (HT) and exclusive of fees. Therefore, they will be increased by the applicable value-added tax (VAT), applicable customs fees if any, all other applicable taxes and fees, and transport fees based on the current rate indicated in the Quote. The price indicated in the Quote includes the cost of packaging the Products, in principle.
3.3 – Costs related to prints – In case the prints provided by the Client (see Article 2.4--‐ (3/). above) are considered non-compliant by the printer used by WCC, the Client must provide compliant prints again, and the final price invoiced to the Client will be increased by the costs incurred, if any, due to this non-compliance. If the replacement prints provided by the Client are again found to be non-compliant by the printer, WCC will have a graphic designer make the required corrections at the Client's expense. In addition, the final price invoiced to the Client will be increased by the costs incurred, if any, due to this new non-compliance.
3.4 – Price reductions --‐ The price expressed in the Quote includes any price reductions, discounts, and rebates granted, if any, by WCC. No discount will be granted by WCC for early payment by the Client. In case the final quantity of printed Products (covers, booklets, and/or labels) is lower than the quantity initially ordered, as indicated in Article 2.3, WCC will adjust the overall price of the order downwards in proportion, i.e., a decrease of up to 5% of the overall price (the "Price Adjustment"). WCC will refund to the Client an amount equal to the amount of the Price Adjustment, in the form of a check enclosed with the delivery of the Products, or if this is not possible, by any other means of payment agreed with the Client.
3.5 – Invoice – WCC will send a compliant invoice, in accordance with legal requirements, to any Client without delay following their order. The Client accepts that any invoice may be delivered to them in dematerialized form, including by email.
4 – TEST PRODUCTS
4.1 – Procedure – When the Quote provides for the sending of test discs and/or test prints (covers, booklets, and/or labels), WCC will press five vinyl discs and/or five covers and/or booklets and/or labels and send them to the Client as soon as possible following their order. The Client has three (3) days upon receipt to indicate whether they are satisfied with these test Products. If they are dissatisfied, the Client must indicate the reasons (qualitative, quantitative) for their dissatisfaction.
4.1.1. – Vinyl Test Pressings – In the event that the Client is not satisfied with the sound quality of the vinyl test pressings, WCC will enlist the services of a sound engineer of their choice with instructions to establish a photograph of the respective frequencies of the "master" provided by the Client and the printed vinyl test pressings. If the comparison of these two photographs confirms the presence of a manifest defect in the vinyl test pressings (and only in this case), WCC agrees to send new vinyl test pressings to the Client as soon as possible. If the Client is once again unsatisfied with the replacement vinyl test pressings and the procedure described above once again gives the Client reason, the Client may request to terminate the order. WCC will then refund the price paid for the order (minus the costs related to the Test Products). If the Client is satisfied (either at the first or second presentation), WCC will begin pressing the entire order of records. In any case, the Client cannot judge the vinyl test pressings as unsatisfactory solely due to surface appearance, provided that their sound quality is satisfactory (or not in question).
4.1.2. – Printed Test Pressings – In the event that the Client is not satisfied with the quality of the printed test pressings, WCC agrees to send new printed test pressings to the Client as soon as possible. If the Client is once again unsatisfied with the replacement printed test pressings, the Client may request to terminate the order. WCC will then refund the price paid for the order (minus the costs related to the Test Products). If the Client is satisfied (either at the first or second presentation), WCC will begin printing the entire order of records. In any case, the Client cannot judge the printed test pressings as unsatisfactory solely due to color rendering, provided that the requested colors are correct.
4.1.3. – Common conditions for vinyl and printed test pressings – Vinyl pressing will not begin if graphic printed test pressings are unsatisfactory, and vice versa, unless otherwise agreed by the Client and WCC. Any Test Product deemed satisfactory by the Client prevents them from later claiming any characteristic of a Product that existed as such on or in the accepted Test Product as a defect. WCC will, therefore, be released from any liability in this regard.
4.2 – Costs – The costs of the sound engineer's intervention, on the occasion of the procedure described in Article 4.1.1. above, will be borne by the Client if this procedure invalidates the criticisms made by the Client; they will be borne by WCC in the opposite case. 4.3 – Use - The Products-tests are exclusively intended to allow the Client to indicate whether they are satisfied and to continue the execution of the order. The Client agrees not to make any other use of them. The Client undertakes to return to WCC, or to destroy at WCC's first request, any Product-test that they have deemed unsatisfactory.
5 – DELIVERY –
5.1 – Methods - WCC will choose a carrier offering the following services: notification to the recipient of the order, via email, of its shipment, and communication on this occasion of a tracking number for the order by internet. Additional charges may be invoiced in case of absence of a person able to receive the delivered Products on behalf of the Client during business hours. The latter may also agree directly with the carrier on an alternative date and/or place of delivery (provided that the cost of the order placed with WCC is not affected).
5.2 – Deadline - The delivery deadline(s) is mentioned in the Estimate for information purposes only. WCC is bound by an obligation of means regarding these deadlines. Their sole exceeding cannot give rise to damages and interest, nor to retention, if WCC has implemented the usual means and given the usual instructions.
5.3 – Transfer of ownership and risks - Ownership of the Products (subject to Article 6) and the risks associated with the Products (theft, loss, destruction, etc.) will be transferred to the Client from the date of dispatch of the Products (i.e. from their handover to the carrier chosen by WCC on behalf of the Client). Thus, the Products always travel at the Client's risk, whatever the mode of transport, including in case of return of the Products carried out by the Client as indicated in Article 10. It is the Client's responsibility, in this context, to take out any appropriate insurance policy to cover these risks.
6 – RETENTION OF TITLE - In the event that, for any reason whatsoever, WCC would fulfill an order before the complete payment of 100% of the price, WCC expressly reserves the ownership of all Products (vinyl records, prints and others if applicable) sold and shipped if applicable, until the effective payment to WCC of the entire agreed total price when ordering and indicated in the corresponding invoice, in accordance with the provisions of article 2367 of the Civil Code. The Client may neither resell nor dispose of the Products in any other way until ownership has been transferred to them following the complete payment (meaning the full and irrevocable receipt of the amounts due) to WCC of the total price indicated on the invoice concerned. 7 – PAYMENT TERMS --‐
7.1 – Deposits – Any amounts paid in advance to WCC by the Clients, for whatever reason, shall constitute deposits and not down payments.
7.2 – Payment Methods – Unless otherwise agreed in writing, orders are payable by check or bank transfer to the bank account whose details will appear on the invoices sent by WCC to the Client.
7.3 – Payment Deadline – Unless otherwise agreed in writing by the parties, the price of a given order is payable in full, without delay, after the formation of such order (without prejudice to any possible Price Adjustment).
8 – DELAYED PAYMENT --‐ PENALTIES
8.1 --‐ Penalty --‐ Any amount unpaid to WCC on its due date indicated on the invoice will give rise to the application of a late penalty at the rate of 20% per annum, from the day after its due date until the effective payment date. This penalty will be calculated on the VAT-inclusive amount of the remaining sum due, and will run automatically without any formal notice or reminder being required.
8.2 – Flat-rate compensation – In addition to the late penalties, any sum, including any deposit, not paid on its due date will automatically render the Client liable for a flat-rate compensation for recovery of forty (40) euros vis-à-vis WCC. When the recovery costs incurred by WCC exceed this amount, WCC may request additional compensation, upon justification.
8.3 – Other rights --‐ Furthermore, WCC may, at its discretion, suspend any performance of its obligations under any ongoing order from the Client concerned, and/or cancel any price reduction, discount, rebate granted if applicable to such Client, and/or render any other invoice not yet paid by such Client immediately due and payable.
9 – TERMINATION --‐
9.1 – Non-payment --‐ Without prejudice to Article 8 above, in the event of non-payment of any sum due and payable by the Client, the termination - or resolution, at WCC's choice (without its liability being incurred by the Client) of the order shall occur, to the detriment of the Client, fifteen (15) days after WCC has sent a registered letter which remains unsuccessful, without prejudice to any damages. In the event of termination of the order, the Client shall return at its own expense any received Products.
9.2 – Bankruptcy of the Client – In the event of collective proceedings or prevention of difficulties affecting the Client (including all proceedings under Book VI of the Commercial Code or any equivalent foreign law proceedings), WCC shall have the same rights as those referred to in Article 9.1.
10 – CLAIMS
10.1 – Timeframe – Any apparent damage caused to the merchandise or any clear deficiency in the quantity of Products delivered must, to be admissible, have been reported to the carrier in his presence upon delivery. Any other claim relating to the non-conformity of a delivered Product must be addressed by the Client by registered letter with acknowledgement of receipt within seven (7) days following receipt. After this period, the Products will be deemed accepted in their entirety. It will be up to the Client to provide any justification as to the reality of the defects or anomalies observed (it being understood that, in principle, the Client is only admissible to invoke defects affecting the Test-Products, as part of the procedure described in Article 4). The Client shall leave WCC all facilities to proceed with their finding and remedy them.
10.2 – Exclusion or limitation of liability – No claim will be accepted on Products that have been manipulated or transformed by the Client. WCC's liability can in no case be sought for an amount greater than the ex-tax billing price (HT) of the defective Products. WCC cannot be held responsible for any indirect damage, in particular any loss of business or customers, or any moral damage. WCC will never be held to any guarantee of hidden defects within the meaning of Article 1643 of the Civil Code. Finally, WCC's liability can never be sought in case of non-performance or improper performance due to a "force majeure" event, any event beyond WCC's control, and obstructing the normal functioning of the production, dispatch and/or transport of the Products. In particular, force majeure events include total or partial strikes, interruption or delay of transport, energy supply, raw materials or spare parts, weather conditions, floods, storms, delays or other breaches strictly attributable to third-party suppliers or service providers used by WCC (such as the carrier, engraver, galvanizer, printer, PVC supplier), etc.
10.3 – Returns – Any return of Products by the Client will require the prior written agreement of WCC. The risks related to the returned Products remain the responsibility of the Client.
11 – INTELLECTUAL PROPERTY
11.1 – Declarations – The Client declares that he/she is fully and wholly the owner of all exploitation rights relating to the works, in all their components (image, sound, text, video...), as contained in the "master" data that he/she provides to WCC for reproduction and acknowledges having paid to the rights holders (individuals or organizations), both French and foreign, all royalties relating to the works. The Client declares that the same applies to all distinctive signs (trademarks, drawings, photographs, logos) affixed to booklets, textiles, posters, flyers, sleeves, etc., whose manufacture would be entrusted to WCC. The Client declares that these works and signs are free from third-party rights. 11.2 – Indemnification -- The Client guarantees WCC against any action, regardless of the author, based on the violation of copyright or exploitation rights, or on the use of data and information contrary to morality or contrary to the legal provisions applicable to the Products in France and/or in the country where the Products will be marketed. In the event that WCC's liability is sought or engaged for any of these reasons, the Client will fully indemnify WCC for any expenses and damages suffered as a result of such proceedings.
11.3 – Stamp -- At the end of an order, WCC will keep the stamping disc ("stamper") (which belongs to WCC unless there is an exceptional agreement with the Client), and where appropriate, the musical and graphic electronic data for a period of at least one (1) year, without reproducing it in the absence of a request from the Client.
12 – DIVISIBILITY - EXERCISE OF RIGHTS
12.1 – Divisibility -- In the event that a provision of the General Conditions is or becomes null, illegal, or unenforceable, the validity, legality, or enforceability of any other provision will not be affected or altered, unless it is an integral part or clearly inseparable from the invalidated or unenforceable provision. Furthermore, the parties will endeavor in good faith to reach an agreement on the modifications to be made to the General Conditions in order to give them an effect corresponding to their common intention.
12.2 – Exercise of rights -- All rights conferred on a party by the General Conditions are cumulative and may be exercised at any time. Failing to exercise a right or delaying its exercise will not constitute a waiver of that right, and the exercise of a single right or its partial exercise will not prevent it from being exercised again or in the future, or from exercising any other right.
13 -- APPLICABLE LAW - JURISDICTION - ENTRY INTO FORCE
13.1 – Applicable law -- These General Conditions are governed by French law. The application of the Vienna Convention of April 11, 1980, is excluded as indicated in Article 1.3.
13.2 – Jurisdiction -- Any dispute relating to the interpretation, validity, and/or performance of these General Conditions or any order between WCC and a Client will be subject exclusively to the jurisdiction of the Commercial Court of Rennes.
13.3 – Entry into force -- These General Conditions entered into force on 01/03/2015 (the first of March, two thousand and fifteen).