1 – PURPOSE AND SCOPE
The purpose of these terms of sale (hereinafter ToS) is to define all the contractual relations between EDITION BOUGAINVILLE (hereinafter the Company or the Seller), specialised in creating high-end carpets (hereinafter the products) and any natural person or legal entity whether or not it is for business purposes (hereinafter the Client) who wishes to order the products. Customs declaration fees are included in shipping price.
These ToS apply as from 1/1/2020 for orders in France and abroad.
Any order or sale is subject to these ToS which the Client expressly declares to fully acknowledge and accept without any reservation. These ToS prevail over any other document (including catalogues, brochures, advertising and the Client’s purchase terms, etc.).
These ToS are provided to any Client who requests them so that they can issue an order to the Seller, as well as any distributor prior to entering into a unique agreement mentioned in Article L.441-7 of the Commercial Code, within the statutory time limits.
The fact that the Seller does not avail itself at any given moment of any clause in these ToS cannot be construed as a waiver of any of these clauses at a later date.
The Seller reserves the right to modify its ToS at any time. The applicable ToS are those in effect on the date that the order is placed by the Client.
2 - ORDERS
Two types of products can be ordered from the Company by the Client:
- A ‘standard’ product order in which the Client selects a product from the catalogues which has not been modified in any way with respect to the selection on offer.
- A ‘customised’ product order in which the Client calls on the Seller’s creative skills in order to create a product that is not included in the Sellers existing product range.
2.2 DRAWING UP AN AGREEMENT
Any order is formalised by singing a quotation issued by the Company, duly dated by the Client with the following handwritten phrase: “I AGREE AND ACCEPT” and accompanied with the down payment mentioned in the quotation.
Given the scarcity and quality of materials used to manufacture the products, any sale is only completed once the order has been expressly accepted by electronic transmission by the Seller, provided the down payment has been fully paid.
2.3 TERM OF THE OFFER VALIDITY
The sales offer mentioned on the quotation is valid provided that the Client signs the quotation, confirming the agreement, within thirty (30) days from the date mentioned on the quotation. After that date, the Seller reserves the right to either maintain its offer or make a new updated offer.
2.4 MODIFICATION, CANCELLATION AND REFUSAL OF THE ORDER
Since the orders are firm and final, any request to even partially change or cancel is subject to the Seller’s explicit acceptance.
The Seller undertakes to deliver a product that is compliant with the order.
If an ordered element or product is not available, the Seller will offer to supply an equivalent element or product capable of replacing the ordered element or product to the Client, who must give its consent.
If the Client does not consent, the unavailability of the ordered element or product will result in the order being cancelled and the Client receiving a refund within two (2) months from the Client’s refusal without any compensation.
The Seller may nevertheless make changes to the ordered product which are associated with the technological development under the conditions provided for in Article R,212-4 of the Consumer Code.
The Company reserves the right to refuse the order in cases where the Client's requests and demands are not consistent with the criteria required for a quality finished product. In such a case, the Client shall be informed of any difficulties, and if it insists that the Company nevertheless provide the service, no guarantee can be given as to the result of the final product, which the Client expressly accepts.
2.5 PROVISIONS CONCERNING ‘CUSTOMISED’ PRODUCTS.
Without affecting the application of the other clauses in these ToS, an order for ‘customised products’ is made after the Company receives a final approval of the pre-production sample (hereinafter referred to as PPS) created according to the Client’s specifications and signed by it, without mentioning any reservations. The PPS must be returned via email at the following address: firstname.lastname@example.org
The Company may not start production for the order until the Client has given its approval. As soon as the Client accepts the proposed PPS, no other modification or cancellation may be made, since the order is automatically sent to the production department.
The PPS is valid as long as the Client signs the agreement within thirty (30) days from the date indicated on the PPS. After that date, the Seller reserves the right to either maintain its offer or make a new updated offer.
The cost analysis required for the PPS is at performed no cost to the Client. Nevertheless, in the event that three (3) successive PPS have been performed for a same Client, the costs associated with this work shall be invoiced at 1000 euros per analysis as well as the samples at 100 euros per sample.
By signing the PPS, the Client accepts full liability. The Company may not be held liable for faults and errors which may have escaped the Client’s attention when creating and approving the PPS. The Client must therefore accept full liability.
The Company will make every effort to ensure that the representation (in soft or hard copy) and the product specifications shown on the PPS are as faithful as possible to the final products.
Nevertheless, given the materials used, the manufacturing processes, the PPS representations and the media used, it is possible that there may be a difference between the product as represented by the PPS and actual, physical manufactured product in terms of size, colour shades, shape and patterns.
Since all the products are hand-knotted or hand-woven, the size may vary up to 5%. Such variations are normal with hand-made products and are due to the tension in the knotting or weaving looms and the meteorological conditions at the time of manufacturing.
The products are hand dyed, so slight colour variations are possible. When ordering the product, the samples must be considered as a reference point, but not as the exact final colour of your product.
Colours can change depending on the humidity and heat when the wools and silks are dyed. Exposing natural fibres such as wool, linen and silk to the sun's ultra violet rays may lead to a partial fading.
The products are crafted by qualified craftsmen and women and they are subjected to many quality controls during manufacturing. However, these are entirely hand-made products. Each article is unique. The colours and sizes can vary slightly from one article to the next.
The Company may not therefore accept liability for such variations in size, colour or shape in the delivered product which is inherent to the manufacturing process.
3. INTELLECTUAL PROPERTY,
All the Seller’s products, creations, achievements, designs, patterns, ornaments, graphics, technical documents and more generally, but not limited to any the written contributions, sketches, illustrations, work, achievements, text, animated and static images, photographs, logos and advertising slogans (etc.), and any work, preparatory studies to create them, remain the exclusive property of SAS EDITION BOUGAINVILLE, the sole and exclusive owner of the intellectual property rights for these elements.
In addition, in so far as the Company performs any kind of work that is fully or partially creative and therefore protected by the legislation on literary, artistic or industrial property, all the rights related to this creation accrue to the Company, excepting an express contrary agreement, including in the event that this creative activity has been agreed at the time of the order, and notwithstanding the collection of special fee or transferring the ownership of the support equipment which includes the work protected by copyrights.
The Company reserves the right to include any product covered by Article 2.5 which it has produced in its existing or future catalogue.
The Client undertakes not to use these products, achievements, creations which may infringe the Seller's intellectual and industrial property rights.
To this end, the Client undertakes to not claim any intellectual property right of any type whatsoever and not to file trademarks, designs or models for the Seller’s creations, achievements or products.
Professional Clients will refrain from reselling the products bought from the Seller in any other way than their original presentation and under the conditions consistent with the brand image. Furthermore, it is forbidden to sell the products under another brand name and use any brand name, trade name, company name, symbol, logo or any other distinctive sign belonging to the Seller for any product other than those sold by the Seller.
The Client certifies that its order does not infringe any intellectual property right that may belong to a third party and itself declares that it holds all the rights or authorisations needed to fulfil its order (on the elements which it may send to the Seller and which are subject to licences, brands, designs, models, photographs, appellations, denominations, distinctive signs, etc,).
Consequently, it automatically holds the Company harmless against any resulting infringement or unfair competition dispute.
The Client must inform the Seller by email, confirmed by registered letter with proof of receipt, as soon as it is aware of any potential or actual dispute relating to the Seller’s intellectual property rights, including proceedings brought under competition law, and undertakes not to take any action without having first contacted the Seller. The Seller shall alone be entitled to manage proceedings and decide on any lawsuits to initiate or bring. The Client undertakes to respect all the Seller’s intellectual property rights, it declares to be perfectly aware of the brands, designs and models, as well as any other intellectual property rights held by the Seller, including the trade name, company name and logo.
If the Client commits to any expenses for any type of legal proceeding which may implicate the Seller and on the basis of which the Client may believe it has grounds to claim damages, if it has not gained the Seller's consent beforehand, it shall bear all the costs without being able to claim any refund for the committed costs.
If the Client learns of any infringement of intellectual property rights, including brands or designs and models owned by the Seller, it must immediately inform the Seller by fax or email, confirmed by registered letter with request for proof of delivery.
4 - PRICE AND TERMS OF PAYMENT
The prices are given in euros are set based on the price in effect on the date the order is made. They are understood to be net and exclusive of VAT. The quotation and invoice mention the applicable price ex VAT, inclusive of VAT and additional applicable shipping & delivery costs, etc. which the Client was made aware of before the order.
4.2 TERMS OF PAYMENT
Excepting the Seller’s express consent, any order, as defined above, necessarily gives rise to the payment of a down payment of 50% of the total amount net of VAT for the products ordered on the order date.
The balance of the price is payable in cash and before delivery within thirty (30) days after the invoice is raised.
Only the following payment methods are accepted: wire transfer, Credit or Debit card, either through a terminal or remotely by telephone.
The payment is only considered to have been made on the day it is received and credited to the Seller’s account. Therefore, cheques must be received by the Seller at least four working days before the set payment deadline.
Only full payment within the payment deadline releases the Client from its payment obligation.
4.3 LATE PAYMENT
4.3.1 LATE PAYMENT DUE BY A NON-PROFESSIONAL DEBTOR OR RETAIL CUSTOMER.
Failure to pay on the date indicated on the invoice, regardless of the planned payment method, will result in late payment interest being charged to the Client at the statutory interest rate, without issuing any formal notice.
When the agreed price has not been paid on the due date, the Seller reserves the right either to demand fulfilment of the sales agreement, or to terminate the agreement by email, backed up by a registered letter with request for proof of delivery sent to the address provided by the Client; it is also entitled to retain the down payment made with the order.
If there are several payment instalments, failure to pay one of the instalments will result in all the subsequent instalments falling immediately due, provided the Seller has opted not to terminate the order.
4.3.2 LATE PAYMENT DUE BY A PROFESSIONAL DEBTOR.
Without requiring any formal notice, any amount not paid by the Client on its due date with cumulatively result in:
- penalties equal to three times the statutory interest rate plus ten basis points, in accordance with Article L.441.6 of the Commercial Code being applied. The applicable rate during the first six months of the year in question will be the rate in effect on 1 January of the same year. For the second six months of the year in question, the applicable rate of shall be that in effect on 1 July of the year in question.
- a lump sum compensation of 40 euros covering debt collection costs in accordance with the provisions of Articles L.441-6 and D.441-5 of the Commercial Code as amended by Decree n° 2012-1115 of 2 October 2012. It is specified that this compensation is not limited to other costs which the Seller may be required to pay in order to collect the debt, including the actual costs of an enforcement agent or lawyers, etc.
- It is expressly agreed under the penalty clause entirely accepted by the Client and which cannot be revoked, that the full amount of the invoice concerned by the late payment incident will be increased by twenty-five (25) %, without affecting any interest on arrears and damages which may also be claimed.
Late payment penalties shall apply as from the due date shown on the invoice and shall continue until the day when all sums owed to the Seller are paid. Any month started shall be full payable. The Seller may automatically offset the late payment penalties on any price reduction owed to the Client, which the Client expressly accepts.
The Seller reserves the right to take the issue to the competent court so that it can resolve this breach, subject to a daily penalty payment per late day.
Finally, the Seller also reserves the right to suspend or cancel delivery of the ongoing orders, without affecting any additional damages or interest which may be claimed as well as keeping the down payment made.
If even partial payment of one of the agreed instalments is missed for one of the deliveries, the Seller reserves the right to demand immediate payment of all the sums due by the Client for any reason whatsoever, as from the first payment incident.
Under no circumstances may the Client decide, on its own initiative to suspend or reduce the payments without the Seller’s prior written consent, especially if the Client alleges that delivery was late or the products delivered do not comply with the provisions of Article L.442-6-1-8o of the Commercial Code, regardless of any contrary provisions in the Clients purchasing terms. Any compensation unauthorised by the Seller shall be considered as a breach of payment, thus authorising the Seller to refuse any new order for products and immediately suspend the ongoing deliveries after having informed the Client accordingly.
5 - DELIVERY
5.1. DELIVERY TERMS
Products are delivered to the address provided by the Client on the purchase order.
Delivery shall take place as from the end of the product manufacturing process or when the product is available in stock and in any event, delivery can only be planned once the Client has fully settled the invoiced amount.
5.2 - DELIVERY TIMES
The products are delivered within the time limits mentioned on the purchase order which apply subject to the cumulative fulfilment of the delivery terms mentioned above.
Any late delivery cannot under any circumstances justify the Client partially or totally cancelling an order and may only give rise to compensation for direct harm actually suffered, demonstrated and proven beforehand by the Client to the exclusion of any lump sum penalty, notwithstanding the existence of contrary clauses which include those stipulating the Client's purchasing terms.
Delivery times are automatically suspended by any event outside of the Seller’s control and which results in delaying delivery, especially in the event of force majeure, as defined in Article 11 - Force Majeure events.
Any modification to an order which occurs during fulfilment, provided it has been expressly accepted in writing by the Seller, is likely to lead to an extension of the planned delivery deadline based on the terms sent to the Client by the Seller.
5.3 - ACCEPTANCE
The Client commits to take delivery of the order within the deadlines mentioned by the Seller and on the proposed date, which it has accepted.
If the Client is absent, refuses delivery or delays accepting the product, without due justifications, the Client shall bear all the additional costs generated as well as the associated risks. The Seller shall be entitled to:
- Store all the products in a third-party warehouse at the Client's expense and demand that it refunds the transport and warehousing costs.
- Terminate the sales contract and resell the products without affecting any payment of damages to the Seller for any damage it may suffer, if the Client has still not taken delivery of the order within a maximum period of 7 days from the scheduled delivery date.
5.4 TRANSPORT - DAMAGE - MISSING
In the event of problems or items missing from the delivery, the Client must immediately issue any reservations necessary to the haulage firm, under penalty of an extinctive time limit for the Client's claim against the haulage firm.
In this case, the Client must cumulatively perform the following steps:
1 - Immediately and definitively, record on the delivery note the type and level of damage observed at the time of delivery.
2 - Confirm with the haulage firm, before the end of three working days as from the acceptance of the articles delivered, the reasons for the claim by registered letter or by extrajudicial instrument under penalty of an extinctive time limit as required by Article L. 133-3 of the Commercial Code.
The haulage firm shall not under any circumstances accept any liability if this above-mentioned procedure is not followed.
If this procedure is not respected, the consequences shall remain exclusively borne by the Client, without any possibility of involving either the haulage firm or the Seller.
6 - SELLER’S GUARANTEES
6.1. GUARANTEE OF COMPLIANCE
6.1.1 WITH RESPECT TO BUSINESS CLIENTS AS DEFINED BY THE CONSUMER CODE
The Seller holds the Buyer harmless against any lack of compliance that is exclusively due to a manufacturing or raw material defect or (with the exception of the tolerances mentioned in Article 2.5), with the Buyer being responsible for filing a claim within five (5) working days as from accepting the products via a registered letter with proof of delivery, backed up by an email. The Client must supply any substantiating evidence as to the lack of compliance.
The Seller reserves the right to refuse any claims which it receives after this deadline.
The guarantee is limited to replacing the non-compliant product and/or any additional parts to be provided, without the Client being able to claim any compensation, or seek redress for any harm for any reason whatsoever, or terminate the order.
The Client may not return any goods without first obtaining the express written agreement of the Seller, via email. Only the haulage firm appointed by the Seller is authorised to return the products in question to the address specified by the Seller.
Any product returned by the Client shall be subject to checks by the Seller or its representative. In absence of any agreement or failure to follow the above-mentioned rules, any product returned shall remain available to the Client, and may not give rise to any commercial advantage. If the Seller has given its prior written agreement, any product returned shall be transported at its expense.
The Seller’s guarantee only covers a lack of compliance. In any event, the Seller does not accept the return of unsold items, or a product that has become damaged, outdated or worn after delivery to the Client.
The Client cannot make any non-compliance claim more than five (5) working days after the products are delivered.
Failure to comply with these above-mentioned conditions will result in the Seller refusing to accept any liability.
6.1.2 WITH RESPECT TO NON-PROFESSIONAL OR RETAIL CUSTOMERS AS DEFINED BY THE CONSUMER CODE
The products supplied by the Seller are covered by the statutory guarantee of conformity provided for by Articles to L. 217-14 of the Consumer Code.
"The Seller must deliver goods in conformity with the sales agreement and is liable for compliance defects that exist at the time of delivery. It shall also be held liable for compliance issues due to packaging, installation or assembly instructions if it is responsible for such measures under the agreement or because such measures were carried out under its liability."
The merchandise is compliant with the agreement:
1. if it is suitable for the purpose usually associated with such a product and, where applicable:
- if it equates to the description given by the seller and has the qualities that the seller presented to the purchaser in the form of a sample or model;
- has the qualities that a purchaser may legitimately expect in view of the public statements made by the seller, the manufacturer or its representative, particularly in advertisements or on labels;
- or if the characteristics have been defined by mutual consent between the parties or specific to any special use sought by the buyer, brought to the attention of the seller, and which the seller has accepted.
If the Client wishes to invoke the statutory non-compliance guarantee, it must contact the Company whose contact details can be found at the top of this document and on the purchase order.
It has a period of two years from delivery to take action; it can choose between repair and replacement of the product, subject to the cost conditions provided for by Article L. 211-9 of the Consumer Code; it is exempted from providing proof of non-compliance for twenty four months after the product has been delivered.
6.2 HIDDEN DEFECTS GUARANTEE
6.2.1 WITH RESPECT TO BUSINESS CLIENTS AS DEFINED BY THE CONSUMER CODE
Given the nature of the product sold and to the extent that the contracting Parties operate in the same specific sector, it is formally agreed that the Seller shall be exempted from any hidden defects guarantee with respect to the Client, which it accepts.
6.2.2 WITH RESPECT TO NON-PROFESSIONAL OR RETAIL CUSTOMERS AS DEFINED BY THE CONSUMER CODE
The products supplied by the Seller are covered by the statutory guarantee of conformity provided for by Articles 1641 to 1649 of the Civil Code
The Seller is obliged to guarantee the article sold against any hidden defects which render it not fit for purpose or diminish this use to such an extent that the buyer would not have purchased it, or would have paid a lesser price, had this been known.
The claim resulting from hidden defects must be brought by the purchaser within two years after discovering the defect.
The Client may decide to invoke the guarantee against hidden faults of the items sold as defined by Article 1641 of the Civil Code. It may choose between terminating the sale or reducing the sales price in accordance with Article 1644 of the Civil Code.
7 - EXLUSION OF THE STATUTORY COOLING OFF PERIOD
Subject to the sale being made remotely and in accordance with the provisions of Article L 121-28 of the Consumer Code, the Client may not benefit from a cooling off period after issuing the order given the nature of the products and to the extent that the ordered products are manufactured according to the Client’s specifications and are highly customised.
The Client’s attention is drawn to the fact that the cooling off period for standard products does not apply to professional Clients or ordered products which have been customised, i.e., by specifying a specific size or graphics.
9 - SALES DISPUTES AND STATUTORY LIMITATION
With the exception of the provisions concerning delivery and by express exception to the provisions of Article L.110-4 of the Commercial Code, any claim by the Client concerning the entire scope of commercial relations with the Seller (invoice, sales cooperation agreement, product quality, various debts, etc.), may not be taken into consideration after an expiry of a twelve (12) month period from the end of the calendar year in which the sum is due.
In any case, if there is a dispute over sales, the Client is responsible for reporting the details and substantiated terms of such a claim no later than twelve (12) months as from the occurrence of the incident which led to the claim to the Seller via formal notice sent by registered letter with proof of delivery by e-mail. Otherwise the Client will be barred by limitation in all its claims, including financial. Accordingly, it may not ask the courts to refund or issue claims for damages. By express agreement, the Client declares to have no intention of using its right under Article 1223 of the Civil Code in any legal proceedings.
In any event, if Seller is sanctioned for any reason whatsoever, the cumulative amount of damages for which the Seller may be liable is expressly limited to the sums expressly collected by it for the Sales for which it has accepted liability over a maximum period of twelve (12) months.
10 - EXCLUSION OF ANY PREDETERMINED FINES
No predetermined penalty which may feature in the sales documents issued by the Client shall be enforceable against the Seller, excepting the prior written agreement, regardless of the reason for the penalty.
In any case, the Client may only potentially claim redress for the harm it has actually suffered, as demonstrating and assessed by common consent with the Seller.
11 - FORCE MAJEURE EVENTS
The Seller shall be released from its obligations for any event that is outside of its control which prevents or delays manufacturing and/or delivering the products, contractually assimilated to force majeure. This is especially the case for force majeure events which occur at the Seller's site such as but not limited to: terrorist acts, riots, revolution, piracy, sabotage, requisition, confiscation, nationalisation, embargo, expropriation, natural disasters such as violent storms, cyclones, earthquakes, tidal waves, flooding, lightning strikes, accidents, including plant, machine breakages, explosions, fire, destruction of plant, factories and any kind of infrastructure, interruptions or delays with shipping, breach of a haulage firm, problems in the supply chain, raw material scarcity, quality defects, or low-quality raw materials, third party breaches, boycotts, strikes and lock-outs of any type, a work-to-rule, occupation of factories or premises, work stoppages in companies of the party requesting to be exonerated from its liability, government action, whether legal or illegal, arbitrary or otherwise, or any other event outside of the Seller’s control.
In such circumstances, the affected Vendor must inform the Client in writing, either by fax or email in accordance with the notification procedure, within 48 hours from the date on which the events occurred. The Agreement binding the Seller to the Client will then be automatically suspended without any right to compensation, as from the date the event occurred.
If the event lasts more than thirty (30) days as from the notification date, the sales agreement may be terminated immediately, by registered letter with proof of delivery by the first party to take action, without either Parties being entitled to claim for damages.
This termination shall take effect on the date the registered letter terminating the sales agreement was first presented for delivery.
12 - CLAIMS
Any claim must be sent to the Company’s Customer Services Department whose contact details are as follows: email@example.com
13 - DELIVERY
This applies to a national or international dispute between a professional and a consumer.
In the event of a dispute, the Client must first contact the Company’s customer service department by email (firstname.lastname@example.org) or by post at the address of the head office. If no solution can be found within 21 days from your request, you may contact the mediator who will try to find an amicable solution without a fee.
In accordance with Article L. 612-1 of the Consumer Code, the Client may access the MEDICYC mediation service without charge via email at: conso.medicys.fr, or by post: MEDICYS – 73, Boulevard de Clichy 75009 Paris.
The Client is free to accept or refuse the mediation service, and if it makes use of it, to accept or refuse the solution proposed by the mediator.
14 - PERSONAL NATURE OF THE AGREEMENT
This Agreement is signed on a strictly personal basis. Therefore, it may not under any circumstances be directly and indirectly, fully or partially assigned, transferred or passed to a third party, for any reason whatsoever, in any form whatsoever, whether or not in return for payment, without the prior, express and written agreement of the other party.
Otherwise, the agreement may be terminated early by the party that is the victim of the breach, to the exclusive prejudice of the other party.
If the transfer has been authorised, the assigning party shall remain guarantor with regard to its co-contractor, for all the rights and obligations from the agreement for the agreement’s remaining term.
15 - PROOF OF EVIDEDENCE
In accordance with Articles 1365, 1367 and 1368 of the Civil Code, the information issued by the Seller shall prevail between the Parties. In the context of the services and the product sales, the Company and the Client intend to set the rules governing the admissible proof between them in the event of a dispute and their probative value. The provisions which follow therefore constitute the proof of evidence agreed between the parties, who commit to comply with this article. The Company and the Client undertake to accept that in the event of a dispute, the data from any Company document, recorded computer data or telephone conversation, as well as any information sent by the Client, such as but not limited to photographs, letters, emails, constitute the proof of acceptance of that these terms whether or not by electronic means, the acceptance all offers, all services and payment methods, and the express waiver of the cooling off period. The Company and the Client irrevocably accept that in the event of a dispute, the scope of these documents and information is that granted to an original, such as a written paper document, signed manually.
16 - APPLICABLE LAW AND ALLOCATION OF JURISDICTION
These Terms of Sale are governed by French law in every respect. The United Nations Convention on contracts for the international sales of goods (referred to as the Vienna Convention) does not apply to the relations between the Seller and its clients.
Any claim or dispute related to the application of these Terms of Sale and their interpretation and the performance of sales agreements signed by the Seller or the payment, shall by express agreement be subject to the jurisdiction of the commercial court of CANNES. This allocation of jurisdiction clause shall apply even in the event of interim proceedings.
The Seller is nevertheless entitled to bring the case before any other competent jurisdiction, in particular that with competence in the location of the Client’s head office or in the location in which the goods are delivered.
Commercial papers or acceptance of payment shall neither replace or override this allocation of jurisdiction clause
17 - MISCELLANEOUS
The ToS are drafted in French and in English. Only the French version shall prevail.