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TERMS AND CONDITIONS
The present GENERAL CONDITIONS OF SALE (hereafter the “General Conditions”) shall apply to all orders placed with HOTELYS, a company incorporated in France, having its registered office at 3, Allée Emile Reynaud, Bâtiment B, 77200 Torcy, France, (RCS MEAUX 420.866.840) or any of its representatives or affiliates (hereafter the “Seller”) by customers (hereafter the “Purchaser”) (Seller and Purchaser hereafter all together referred to as “Parties”). Consequently, any order placed with the Seller necessarily implies full and unreserved acceptance by the Purchaser of the General Conditions. Any contrary conditions and, in particular, any general or specific conditions stemming from the Purchaser, including any of its purchasing conditions or purchase orders, shall therefore not be enforceable against the Seller, unless agreed upon beforehand in writing by the latter. The fact of not having availed itself, at any given time, of any of the General Conditions shall not be interpreted as a waiver by the Seller to avail itself at a later stage of any of the General Conditions. The General Conditions may be modified at any time by the Seller; the Seller keeps the Purchaser informed.
Orders must be sent to the Sales Division of the Seller by filling in the online order form at sirbeddingcollection.com. The Seller reserves the right not to deliver any order if the Purchaser is in breach of any of its obligations, notably its payment obligations and, more generally, to refuse any order that has an abnormal character, for whatever reason, or is placed in bad faith. Orders only become final and definitive to the Seller once it has accepted it. Any modification of the Purchaser’s order shall obtain prior written consent of the Seller and the Seller reserves the right to refuse any such modification. In this case, price will be due for payment under initially agreed upon conditions. Orders are personnel to the Purchaser and may not be assigned without prior written consent of the Seller.
2- MANUFACTURING MODIFICATIONS
Items detailed in the price lists, catalogues or adverts issued by the Seller, in any form whatsoever, as well as those on display, are presented for information purposes only and may not be regarded as a binding offer. The Seller therefore reserves the right to modify or withdraw any of these items. It is of the Purchaser’s responsibility to check with the Sales Division of the Seller that the items it wishes to purchase still exist and have not been subject to modifications.
3 – DELIVERY
Unless otherwise agreed upon in writing between the Parties, delivery is deemed effective at the Seller's factories, shops or premises when the goods are directly handed over to the Purchaser, or by simple notification that they are available, or by their hand over, in the premises of the Seller, to a haulage contractor appointed by the Purchaser or chosen by the Seller. Deliveries are conditioned to the availability of supplying and transport. Delivery terms are therefore only given by way of information. As a consequence, possible delays shall not give the Purchaser the right to cancel the order or claim for compensation. Delivery terms may be modified if the Purchaser does not comply with any of its payment obligations. The Seller is authorized to make global or partial deliveries.
4 - CARRIAGE
Unless otherwise agreed upon in writing between the Parties, goods are sold on an ExWork (EXW) basis, to the Seller’s factories or premises. All goods are therefore carried at the Purchaser’s risk and peril whatever their weight, volume, value or transportation means, even in the case of free carriage. Risks shall be passed onto the Purchaser as soon as goods are delivered i.e. directly handed over to the Purchaser, or by simple notification that they are available, or by their hand over, in the premises of the Seller, to a haulage contractor appointed by the Purchaser or chosen by the Seller. The Purchaser shall be responsible for checking goods upon receipt and, if it notices any damages sustained or missing items or items that are non-compliant with the order, it shall express all due and necessary reservations to the haulage contractor with a copy by mail sent to the Sales Division of the Seller, immediately after unloading. Reservations communicated two days after unloading will not be accepted, subject to legal provisions on hidden or latent defects.
In any case, the Seller’s liability is strictly limited to the replacement of goods it acknowledged as damaged or non-compliant to the order or to the provision of missing goods. Seller shall not be held liable if goods are stored under abnormal conditions or conditions unsuitable with their nature or have been damaged by reason of an improper transportation. As from delivery, the Purchaser shall be held solely responsible for any risks of damage, loss, total or partial destruction, whatever the reason for the damages, even if they are brought about by a fortuitous event or a case of force majeure. The Purchaser shall therefore insure goods at their commercial value, to the Seller’s benefit.
5 - PRICE – PAYMENT TERMS
All prices are invoiced on the basis of the price lists in force at the time of confirmation of the order and shall not include taxes, charges, customs, duties, costs for transportation and insurance, unless otherwise agreed upon in writing by the Seller. Packaging is included in the price, except special packaging, which is subject to additional charge. Should delivery be delayed because of circumstances beyond the Seller’s control, notably because of the Purchaser’s behavior or decision, resulting storage costs shall be charged. Cost overruns originating in difficult set-ups shall be at the Purchaser’s expenses. More generally, the Seller reserves the right to invoice any cost resulting from any breach from the Purchaser of any of the oral or written delivery arrangements agreed upon. Prices may be modified at any time by the Seller; the Seller keeps the Purchaser informed. Payment of a given order shall be made, at the Seller’s address, upon the payment terms agreed in writing between the Parties. Payment shall only be deemed to be effective once the Seller has actually received the monies due in its accounts. In the case of late payment, the Seller shall have the right to suspend or cancel ongoing orders and, 24 hours after notice remained unsuccessful, to request restitution of the goods at the Purchaser’s costs, without prejudice of any other possible claims or damages, notably in relation to the commercial quality of the items thereby redelivered. Purchaser shall also be charged interests on overdue payments, at the rate of three times the current French Legal Rate, applicable at the normal payment date, without prior notification. Moreover, the Seller reserves the right to require for payment in advance for any order placed thereafter. Any deduction or set-off by the Purchaser will be treated as a failure of payment. In the event of deterioration in the financial status of the Purchaser, the Seller reserves the right, even when an order has been partially shipped, to require from the Purchaser payment in advance. Under no circumstances shall payments be suspended or be set-off by the Purchaser without the prior written consent of the Seller. In the case of acknowledged insolvency, receivership or compulsory liquidation, the Seller reserves the right to, without any formalities, take goods back, at the Purchaser’s costs, whether their payment is overdue or not. Grant of price reductions, if any, by the Seller is subject to the condition that the Purchaser has met all due dates of all of the invoices.
6 – RESERVATION OF TITLE
Goods shall remain the property of the Seller until related invoices have been fully paid. In this respect, the handover of a bill of exchange, bank cheque or postal cheque or any other security creating an obligation of payment shall not constitute a payment. Payment shall only be deemed to be effective once the Seller has actually received the monies due in its accounts. Claim of the Seller shall be automatically transposed to the claim for price of the goods as resold by the Purchaser. In case of partial or total non payment, goods in store that have been resold shall be deemed to correspond to unpaid receivables. In case of receivership or compulsory liquidation of the Purchaser, goods may be claimed and the Seller is hereby already authorized by the Purchaser, which accepts, to carry out an inventory and / or sequester unpaid goods in its hands. Until full payment has been made, the Purchaser undertakes not to confer a pledge or a security on the goods, nor to use them as a guarantee. The Purchaser undertakes to inform any third parties, particularly in the case of seizure, of the fact that goods still belong to the Seller and to inform the Seller immediately of any seizure or similar operation and deterioration of its financial status.
7 – WARRANTY CLAIMS
The Seller shall not be held liable for any indirect, special, incidental or consequential loss or damage or punitive damages of any nature, including, but not limited to, business interruption costs, loss of production/growth, loss of contracts, loss of profit, injury to reputation or loss of customers, or for any other consequential or indirect loss whatsoever. These limitations of liability apply for all liabilities, including but not limited to, liability for delay, latent defects and product liability. No damages shall be accepted by the Seller, unless agreed upon beforehand in writing, whatever the reason for the damages. In any case, the Seller’s liability is strictly limited to the price of the goods concerned, for a maximum period of 12 month as from the delivery date of the concerned good. At its sole discretion, the Seller may decide to replace or repair concerned goods. The Seller’s warranty to the Purchaser as provided herein, shall be void if any repairs, alterations or other work have been performed on the goods concerned, or if the alleged material defect is a result of abuse, misuse, improper storage, improper maintenance, improper installation, improper operating or environmental conditions, normal wear and tear, accident or actions or inactions of any party other than the Seller.
Any warranty given by the Purchaser to its customer covering the qualities, the safety, the conformity, the delivery, etc. of the goods cannot be claimed against the Seller without its prior written consent. The Purchaser shall indemnify and hold the Seller harmless from and against any and all losses, damages, claims and costs and expenses (including reasonable attorneys’ fees) arising out of any action, suit, claim or complaint which may be brought or made against the Purchaser and/or the Seller arising out of or in connection with the Purchaser’ s activity in relation to goods, or caused by the negligence or intentional misconduct of the Purchaser, its officers, employees, agents, or anyone whose authority to act derives from, or allegedly derives from, the Purchaser. The Purchaser’s obligations under this paragraph shall survive the termination of its commercial relationship with the Seller. Goods are conforming to French legal standards.
8 – DISTRIBUTION – ON-LINE PROMOTION AND SALE
Any Purchaser or retailer who wishes to promote or sell the goods of the Seller on an on-line communication service shall strictly comply with the terms of the on-line distribution chart corresponding to the range of products in question, which shall be signed before hand to any on-line sale or promotion if consented to by the Seller.
9 – INTELLECTUAL PROPERTY - CONFIDENTIALITY
All of the models sold by the Seller are new and original creations. The Seller is the owner or licensee of all of the intellectual property rights, industrial property rights, patents and brand names in relation to the goods sold to the Purchaser. The models sold by the Seller may not be represented nor copied in any form whatsoever, particularly in photographic form, without the prior written consent of the Seller. The same applies for all or part of the information set forth on the Seller’s business documents, prospectuses, catalogues, Internet sites or any other document showing the goods, regardless of the medium. Furthermore, any use or reproduction of the brands of the Seller, names of product lines, collections or models, logos, corporate names and/or domain names shall also have the prior, written authorization of the Seller and shall comply with all rules relating to the use of any relevant trademark or graphic chart. Any reproduction that has not received prior authorization or any possession with a view to reselling non authorized reproductions of the models, brands and patents of the Seller shall constitute an infringement in relation to which a civil lawsuit or criminal proceedings may be brought. Studies, plans, drawings and documents handed over or communicated by the Seller shall remain its property. Consequently, they may not be disclosed to third parties for any reason whatsoever by the Purchaser, without prior written authorization of the Seller. If the Purchaser becomes aware of any infringement of any patents protecting the products or brands owned by the Seller, it shall immediately inform the Seller by fax or email, confirmed by registered letter with acknowledgement of receipt.
10 – FORCE MAJEURE
Subject to proper information, the fulfillment by the Seller and the Purchaser of all or part of their obligations shall be suspended if a fortuitous event arises or if there is a case of force majeure (strikes, riots, fire, accident, shortages from the Seller’s suppliers, etc.) that hinders or delays said fulfillment. Any such suspension shall not however apply to payment obligations. If this suspension continues for more than seven days, either of the Seller or the Purchaser shall have the right to cancel the ongoing order.
11 - INDEPENDENCE
Seller and Purchaser state and acknowledge that they are and shall be, during the entire term of their commercial relationship, independent commercial and trade partners, each assuming the commercial risk and liability of its own operations.
12 - JURISDICTION – APPLICABLE LAW
All of the commercial relations between the Seller and the Purchaser arising from the application of the General Conditions, and any specific agreements that may be agreed upon, and any disputes arising thereof, of whatever nature, shall in all respects be subject to French law, even if goods are sold to a Purchaser located outside of France. Any disputes resulting from the execution of the commercial relations established between the Seller and the Purchaser, as well as any actions resulting from said relations, shall come under the jurisdiction of the competent courts of PARIS (France), even in the case of incidental demand, if the Seller's guarantee is involved or in the case of multiple defendants.