TERMS AND CONDITIONS OF SALE
In these general terms and conditions of sale and its appendices, the following terms used with a capital letter and indifferently in the singular or plural, shall have the following meanings:
Company: refers to BACK2SLEEP, a société par actions simplifiée (simplified joint stock company) whose registered office is 188 rue de RIVOLI 75001 PARIS, with a capital of 150,000 euros, registered with the RCS of PARIS under number 914 906 268;
Customer: designates any natural person or legal entity, public or private, acting for purposes within the scope of its commercial, industrial, artisanal, liberal or agricultural activity on French territory, including when acting in the name or on behalf of another professional and placing an Order for Products;
Product(s): refers to any item(s) offered, as a principal or accessory, by the Company and which may be the subject of an Order by the Customer;
Catalog(s): refers to all paper and/or electronic media presenting the Products offered for sale by the Company;
Order: refers to the order placed by the Customer with the Company for the Product(s);
Order Confirmation: means the formal acceptance of the Order by the Company;
Contract: means the contractual documents, as defined in article 2 hereof, governing the relationship between the Parties;
Tariff: refers to the current price of the Products;
Party(ies): means individually the Customer or the Company or collectively the Customer and the Company;
C.G.V.: refers to the Company's general terms and conditions of sale governing the relationship between the Parties;
Special Conditions: refers to the contractual document mentioning the specifics of the Contract signed by all the Parties;
Site: refers to the Company's website, accessible at the following address: http ://www.back2sleep.com
- OBJECT - CONTRACTUAL DOCUMENTS - ACCEPTANCE OF TERMS
These General Terms and Conditions apply to all sales made by the Company to Customers.
The relationship between the Parties is governed by the Contract to the exclusion of any other document.
The Contract is made up of the following documents, which form an indissociable contractual whole in descending order of priority:
- where applicable, the Special Conditions, including their appendices,
- where applicable, Customer Purchase Orders.
- the latest version of the GTC,
In the event of contradiction between the above-mentioned documents, the higher-ranking document will prevail for the obligation in question.
The Customer hereby declares that he has read and accepted these General Terms and Conditions without reservation, other than the specific terms mentioned, where applicable, in the Special Terms and Conditions and Order Forms. By the same token, the Customer expressly waives any and all terms and conditions of purchase or any other commercial document, unless otherwise expressly and by hand accepted by the Company in the Special Terms and Conditions and Order Forms. The same applies to any addition made by the Customer to the Purchase Orders and Special Conditions. The latter shall only be accepted subject to the above conditions.
These General Terms and Conditions may be modified by the Company at any time. Modifications to these GCS are enforceable from the date they are posted online, and cannot be applied to transactions concluded previously. The version applicable to the Customer's purchase is the one in force on the Website at the date the Order is placed.
- CUSTOMER DECLARATIONS
The Customer declares that he is acting within the scope of his commercial, industrial, craft, liberal or agricultural activity on French territory, including when he is acting in the name or on behalf of another professional, and that the provisions of article L 221-3 of the French Consumer Code do not apply to him.
He/she also declares that he/she is a professional in the sector and therefore qualified to sell the Company's Products, and in particular medical device products as defined in article L.5211-1 of the French Public Health Code.
4.1. Orders by post, e-mail, telephone or fax
Orders are placed by telephone, e-mail, post or fax with the Company by the Customer, who indicates his or her name, delivery and invoicing address, the quantities and part numbers ordered and, where applicable, his or her customer number.
An order form is available for this purpose.
4.2 Ordering on the Site
Orders are placed by the Customer by selecting the available Product offers - Starter-Kit or Back2sleep products - on the Site according to the following process:
- identification of the Customer by means of his login and password to access his Personal Account or in free mode
the selection :
- of the Product(s) (Starter-Kit or Back2sleep Products),
- before the final validation, the Customer visualizes the details of his order, he can proceed to the possible wished modifications concerning the contents of his basket (only the quantities are to be informed by the Customer);
acceptance by the Customer :
- command interface CGUs,
- terms and conditions.
by checking the boxes on the "summary" page of the order on the Site.
By checking the aforementioned boxes, the Customer declares that he/she has read and unreservedly accepted the GCS and other aforementioned documents before validating his/her Order.
- Validation of the order implies acceptance by the Customer, with full knowledge of the facts and without reservation, of the quantities, products and services as well as the obligation to pay for them.
4.4 Conditions common to all Orders
The Order will only be taken into account by the Company if the Customer has clearly identified him/herself by providing the information required in the order form (name, address, telephone number, e-mail address, correct delivery and billing address, etc.).
Product offers are valid as long as they are visible on the Site, while stocks last.
The information provided by the Customer at the time of placing an Order is binding, particularly in the event of error.
The minimum order is 60 boxes of medical devices.
The Products sold are strictly intended for resale within the Customer's usual network. By placing an order, the Customer agrees not to resell the Products via any distribution channel that may be detrimental to the Customer's image and/or consumer safety, in particular via a marketplace. The Company reminds you that the Products sold are medical devices and that precautions must be taken when selling them.
The Company reserves the right to cancel or refuse any order from a Customer with whom there is a dispute relating to the payment of a previous order.
4.5. Order Confirmation - Order Tracking
In the case of internet orders, the Contract is only definitive after Order Confirmation by the Company, which will be sent by e-mail.
A legally binding contract is only concluded if the Company sends an order confirmation or if the goods are received by the Customer within a few weeks of the order being placed.
Acceptance of the offer is at the discretion of the Company. Order Confirmation is always subject to subsequent verification of available stocks, but within a reasonable period of time.
The confirmation e-mail sent to the Customer summarizes all the elements relating to the Order (products, services, price, charges, quantity, etc.). It is the Customer's responsibility to check the accuracy of the order and to immediately report any errors.
Internet Orders require the Customer to have a valid e-mail address and mailbox. Failing this, the Customer will not be able to receive written confirmation of the Order.
We recommend that you keep this confirmation or print it out.
In certain cases, notably for non-payment, incorrect address or any other problem related to the Personal Account, the Company reserves the right to block the Order until the problem has been resolved.
The Company reserves the right to cancel or refuse the Order of a Customer with whom there is a dispute relating to the payment of a previous Order.
4.5. Cancellation - Modification of the Order
No cancellation or modification of the Order by the Customer after acceptance by the Company is permitted.
- CATALOG(S) - PRODUCT AVAILABILITY
The Company reserves the right to modify the range of Products offered for sale in its Catalogues at any time without prior notice. Product offers made by the Company are subject to availability.
The Company makes every effort to provide Customers with the most complete information concerning the Products offered in its Catalogues.
However, this information is provided for guidance only, and the Company does not guarantee its accuracy, timeliness or completeness. The texts are provided for information purposes only, and the photographs of the Products offered by the Company are provided for illustrative purposes only; they have no contractual value.
The information and/or documents available in the Catalogues are subject to change at any time and may have been updated without prior notice.
Furthermore, the Company reserves the right to replace any Product in an Order, even after confirmation thereof by the Company, with another Product having the same essential characteristics.
Customers who are healthcare professionals can consult the blog and a document database to help them make choices and use the Products; other customers can only access the document database.
The Customer is invited to pay particular attention to the provisions ofARTICLE 14 of the GCS.
- PRODUCT PRICES AND SHIPPING COSTS - CARRIAGE PAID
By express agreement between the Parties, prices are those appearing on the Tariff in force on the date of the Order. They are expressed in euros.
Prices are exclusive of tax, packaging, transport, delivery and insurance costs, which are invoiced in addition, under the conditions indicated in the price list, and are calculated prior to the immediate purchase or placing of the order.
Packing, shipping, transportation and insurance costs depend on the composition and size of the Order.
These Tariffs are firm and non-revisable during their period of validity, as indicated in particular on the http://www.back2sleep.com website, the Company reserving the right, outside this period of validity, to modify prices at any time.
An invoice is issued by the Company and given to the Customer upon delivery of the Products.
Taxes, duties, customs, import, transit or other local or state taxes may be payable. They are the exclusive responsibility of the customer, both in terms of declaration and payment.
7.1. The price is payable in cash by secure payment as follows:
- By credit card,
- By telephone with bank details,
- By bank transfer,
- By payment link (stripe)
In the case of payment by cheque, the cheque must be issued by a bank domiciled in metropolitan France or Monaco. The check will be cashed immediately.
Invoices issued by the Company are payable at its address in France (188 rue de RIVOLI 75001 PARIS) within 30 (thirty) days of the invoice date, without discount. No discount is granted for cash or early payment. The first three Orders are payable on receipt of invoice at the latest, without discount.
In the case of deferred or forward payment, payment within the meaning of the present article is the effective and full payment of the sums due on the agreed due date.
By express agreement and unless postponement is requested by the Customer and granted by the Company at least ten (10) days before the due date, failure to pay invoices on the due date will result in :
- Immediate payment of all sums owed to the Company by the Customer, regardless of the method of payment, without prejudice to any other action that the Company may take against the Customer,
- The payment of a penalty equal to 15% of the price of the Products services shown on the said invoices, inclusive of tax, by way of damages and interest.
- late payment interest equal to five (5) times the legal interest rate,
The aforementioned penalties are payable without the need for a reminder, without prejudice to any other action that the Company may be entitled to take against the Customer in this respect. In addition to these penalties, the fixed indemnity for collection costs of forty (40) euros provided for by the French Commercial Code, or any claim for compensation for greater loss, shall be added.
In addition, the Company reserves the right, in the event of non-compliance with the above payment conditions, to refuse, suspend or cancel the supply of Products ordered by the Customer and/or to suspend the performance of its obligations.
7.2. Invoice disputes: In the event of an error on an invoice issued by the Company, the Customer has a period of seven (7) working days from dispatch of the invoice to request a correction. This request may be made in writing or by any means available to the Customer (letter, fax or e-mail). After verification by the Company, and in the event of a proven error, an adjustment credit note will be issued by the Company. Disputes relating to a service are in no way suspensive of payment for other services.
The offsetting of amounts due for different services is unlawful without the written consent of the Company. The same applies to debit notes, penalties of any kind or requests for credit notes. In all cases, the Company must be given the opportunity to comment. It is only when these observations have been made and a written agreement has been reached between the parties that compensation between reciprocal, liquid and due claims will be enforceable within the meaning of the present article.
- DISCOUNTS AND REBATES
The customer may benefit from discounts and rebates appearing in the Company's price lists, depending on the quantities purchased or delivered by the Company at a single time and place, or on the regularity of his orders.
Tariffs take into account any discounts granted by the Company, in particular on the http://www.back2sleep.comwebsite.
- RETENTION OF TITLE CLAUSE
The Company retains full ownership of the Products until full payment of the price and accessories, ancillary costs and taxes.
Until this date, the Customer may not, in any way whatsoever, dispose of the Products without the express prior consent of the Company.
Consequently, the sale, pledging or contribution to a company are formally forbidden to the Customer. The Customer undertakes to notify the Company, on the same day and by registered letter, of any protest, summons, seizure and, in general, of any event that may affect in any way the Company's property rights in the Products, which must remain the Company's unseizable property.
In particular, the customer undertakes to identify the goods delivered in its warehouses or under its control, so that they can be inspected at any time by the Company's employees, until they have been paid for in full.
In the event of non-payment or partial payment on the due date, the Company reserves the right to request the return of the Products by registered letter with acknowledgement of receipt.
Any deposit paid by the Customer shall be retained by the Company as a lump-sum indemnity, without prejudice to any other action it may be entitled to take against the Customer as a result. On the other hand, the risk of loss and deterioration will be transferred to the Customer upon delivery of the Products.
The Customer therefore undertakes, at his own expense, to insure the Products, in favour of the Company, by an ad hoc insurance policy, until full transfer of ownership, and to provide proof thereof to the Company at the time of delivery, at the Company's request. Failing this, the Company shall be entitled to delay delivery until such proof has been provided.
- DELIVERY TIMES AND SHIPPING
Delivery times are given as an indication only; delays cannot under any circumstances justify the cancellation of an Order by the Customer, even if it has been confirmed by the Company, nor give rise to damages of any kind for loss of use or otherwise.
In particular, no late payment penalty may be demanded.
In the case of special production, a delay in delivery can never lead to the cancellation of an order.
The Company is authorized to make deliveries in whole or in part.
- TRANSFER OF RISK
The risks and responsibility for the Products sold are transferred to the Customer as soon as they are taken over by the carriers from the Company's stock, even in the case of carriage-paid delivery. Products are insured only on express instruction from the Customer and at the Customer's expense. Products are delivered to the place indicated by the Customer in the Order, but exclusively at ground level, unless expressly agreed otherwise by the Company.
- RECEPTION - COMPLAINTS
Upon receipt of the Products, it is the Customer's responsibility to check, in the presence of the carrier, the quantities and the apparent condition of the Products delivered and their packaging.
In the event of loss or damage upon receipt, the Customer must express any reservations in accordance with article L1333 of the French Commercial Code. In the event of a complaint, the Customer must inform the Company of any anomaly within 48 (forty-eight) working hours from the date of delivery of the Order.
Any reservations made at the time of delivery must be noted on the delivery note. Reservations must be explicit. Reservations such as "subject to unpacking" have no legal value.
It is the Customer's responsibility to provide proof of any claims. Any such claims do not exempt the Customer from paying the price due on the due date.
Products such as medical devices cannot be the subject of a claim by the Customer if their original packaging has been unsealed, opened or damaged by the Customer.
- EXCHANGE - REFUND
Any request by the Customer for the return or exchange of Products must be formally approved by the Company.
Only Products returned intact, in their original packaging and unopened may be exchanged or refunded.
Similarly, medical device products cannot be exchanged or reimbursed if their original packaging has been unsealed, opened or damaged by the customer.
As shipping costs have been "used up" in order to deliver the parcel, they will not be reimbursed under any circumstances.
The cost of returning Products shall be borne by the Customer.
The exchange or refund will take place only after receipt of the Products concerned by the Company at the following address: [TO BE COMPLETED].
- PRODUCT CONFORMITY - LIABILITY
The Products offered in the Catalogues comply with current French legislation. The Company shall not be held liable in the event of non-compliance with the legislation of the country where the Product is delivered (for example, in the event of a ban on a title or product). It is the Customer's responsibility to check with local authorities about the possibility of importing or using the Products the Customer intends to order.
The customer must comply with all applicable laws, regulations and requirements.
The medical devices sold by the Company are regulated health products which, in accordance with these regulations, bear the CE mark. Unless expressly stipulated otherwise, the Company guarantees the suitability of the Product only for the use for which it was designed, and not for the use for which it may be intended by the Customer.
The Customer must strictly comply with the instructions relating to each Product, it being specified that the information provided cannot under any circumstances replace medical advice.
The customer undertakes to take note of possible side effects, contra-indications and strict conditions of use (preliminary test to determine size, duration of use) and, if necessary, to seek the advice of a health professional. He/she also undertakes to comply strictly with the conditions of use set out in the instructions for use enclosed with the Products.
The Company is not in any way intended to provide health or pharmaceutical advice or consultation. Any such information should be sought from a physician, pharmacist or other healthcare professional.
Consequently, the Customer acknowledges being fully informed that the information provided by the Company is not intended, in any way whatsoever, to :
- give medical advice ;
- provide a diagnosis ;
- replace the consultation, advice or recommendations of a healthcare professional;
The customer undertakes to notify the Company immediately in the event of an incident or materiovigilance, indicating the references and numbers of the incriminated batches.
The customer may send the Agence Nationale de Sécurité du Médicament et des Produits de Santé (French National Agency for the Safety of Medicines and Health Products) any report or alert concerning a medical device product which may present an undesirable effect via the following link: https://ansm.sante.fr/documents/reference/declarer-un-effet-indesirable
The Company may only be held liable in the event of gross negligence, wilful misconduct or fraud. The Company's liability may only be incurred in the event of proven fault or negligence, and is limited to direct loss, to the exclusion of any indirect loss of any kind whatsoever.
In the event that the Company is liable for any damages pursuant to the preceding paragraph, its liability for damages and reimbursements, whether contractual, extra-contractual or of any other nature and irrespective of their legal nature, shall be limited to the amount of foreseeable damages usually generated for this type of contract. The exclusions and limitations of liability stipulated above do not apply to the Customer's claims relating to death, personal injury and damage to health and, more generally, to any claim excluded from the scope of such clauses limiting or exonerating liability by virtue of mandatory legislative provisions. The Company disclaims all liability for loss or damage caused by any force majeure event recognized by case law.
- INTELLECTUAL PROPERTY
All signs, logos and other distinctive marks on the Products are the exclusive property of the Company. The corporate names, trade names, trademarks, logos and distinctive signs reproduced in the Catalogues and on the Site are protected under trademark law and intellectual property rights. The reproduction or representation of all or part of any of the aforementioned signs is strictly prohibited and requires the prior written authorization of the Company.
Medical device products are also protected by patents.
All texts, comments, works, illustrations, works and images reproduced or represented in the Catalogues are strictly reserved under copyright and intellectual property law for the entire world. As such, and in accordance with the provisions of the French Intellectual Property Code, only use for private purposes is authorized, subject to different or even more restrictive provisions of the French Intellectual Property Code. Any total or partial reproduction or representation of the Catalogues or of all or part of the elements found on the Site is strictly forbidden and is liable to constitute an infringement of copyright.
These General Terms and Conditions of Sale do not imply any transfer of license or right of use of patents or any other intellectual property rights from the Company to the Customer in respect of the Products, the Catalogues and the Site and their content.
Should the Customer wish to use all or part of the Company's intellectual property rights to promote the Products, it must first obtain the Company's written authorization and provide a complete file on the planned operation.
- INTUITU PERSONAE - ASSIGNMENT OF CONTRACT - SUBCONTRACTING
The Contract is concluded intuitu personae in consideration of the Customer's person and skills. Consequently, the Customer may not assign, contribute or transfer all or part of the Contract in any form whatsoever, without the prior written consent of the Company.
Failing such agreement, the Company shall be entitled to terminate the Contract with effect from the completion of the transaction, without the Customer being entitled to claim any compensation whatsoever.
The Customer undertakes to inform the Company immediately of any event which could result in any change of control on its part, and the Company reserves the right to terminate the Contract with three months' notice and without compensation, in the following cases:
- death or incapacity of the Customer,
- sale, incorporation or transfer of the customer's business,
- change in the Customer's management,
- change of effective control of the Customer,
- dissolution of the client company, in compliance with legal provisions.
The Company may transfer the Contract to any Group company or any member of its distribution network and subcontract all or part of its obligations.
- RESOLUTORY CLAUSE
17.1. Termination for non-performance of a sufficiently serious obligation
The defaulting Party may, notwithstanding the clause entitled "Termination for failure by a Party to perform its obligations" set out below, in the event of sufficiently serious non-performance of any of the obligations incumbent upon the other Party, notify the defaulting Party by registered letter with acknowledgement of receipt of the wrongful termination of the present contract fourteen (14) days after the sending of a formal notice to perform which has remained unsuccessful, in application of the provisions of article 1224 of the French Civil Code.
17.2. Termination for failure of a party to perform its obligations
In the event of non-compliance by either Party with the following obligations :
- The supply of the product(s) ordered (ARTICLE 6),
- Timely payment (ARTICLE 7),
- Respect for intellectual property rights (ARTICLE 15),
- Compliance with the intended use (ARTICLE 14),
The contract may be terminated at the option of the aggrieved party.
It is expressly understood that termination due to a party's failure to meet its obligations will occur ipso jure, with formal notice resulting from the mere fact of non-performance of the obligation, without summons or performance of formalities.
Each of the Parties hereto undertakes to treat all information of any kind whatsoever and on any medium whatsoever received from the other Party in a confidential manner and shall refrain from disclosing such information to unauthorized third parties during the term of validity of this agreement and the following five (5) years.
Each of the Parties undertakes to take all necessary measures to ensure that its employees comply with these confidentiality obligations.
The provisions of this article shall not apply to information which :
- are already known to the other Party, provided that they have not been disclosed to it by a third party bound to the transmitting Party by a secrecy agreement
- are directly obtained by one of the Parties in the course of its own work
- are in the public domain
- are disclosed by one or other of the Parties at the request of a competent judicial authority, subject to having duly informed the other Party in strict compliance with the confidentiality of proceedings.
The Contract, as defined in article 2 hereof, embodies all the commitments made by the Contracting Parties relating to the supply of Products by the Company to the Customer. It cancels and replaces all prior written and verbal agreements, as well as all proposals or offers to contract made by either of the Parties.
Neither Party shall be liable for anything other than what is expressly agreed in this Contract.
- PARTIAL INVALIDITY OF THE CONTRACT
The nullity or inapplicability of any of the stipulations of the Contract shall not invalidate the other stipulations, which shall retain all their force and scope.
However, the Parties may mutually agree to replace the invalidated stipulation(s).
Titles are for convenience only. In case of contradiction between the title and the body of an article, it is understood that the body of the article prevails.
Any modification whatsoever of the Contract must be the subject of a written agreement, signed by persons duly authorized for this purpose by each Party.
Any waiver, for any length of time whatsoever, of the right to invoke the existence or total or partial breach of any of the clauses of the Contract shall not constitute a modification or deletion of the said clause or a waiver of the right to invoke the benefit of prior concomitant or subsequent breaches of the same or other clauses.
Any such waiver will only be effective if expressed in writing by the person duly authorized to do so.
- APPLICABLE LAW - LANGUAGE OF THE CONTRACT
By express agreement between the Parties, this Contract is subject to French law, to the exclusion of any other legislation.
Failing amicable agreement, any dispute relating to the conclusion, validity, interpretation or performance of the Contract shall be submitted to the exclusive jurisdiction of the Paris Commercial Court.