Article 1 - DEFINITIONS
In the context of these general terms and conditions of sale, the following terms, beginning with a capital letter, or written in capital letters, used in the singular or plural, shall have the meaning defined below:
‘Service Provider’: refers to the company Ness photo: publisher of the Site, whose contact details are specified in the Site's Legal Notice tab.
‘Site’: refers to the www.ness-photo.com website published by the Service Provider on which Customers can place an Order for Photographic Products.
‘Photographic Products’: refers to the photographic products that may be ordered by a Customer on the Website, such as photographs, videos, books, diaries, calendars, etc.
‘Customer’: refers to a person who places an Order for one or more Photographic Product(s) on the Web Site.
‘Consumer’: refers to the Customer, a natural person, who is acting for purposes that do not fall within the scope of his or her commercial, industrial, craft, liberal or agricultural activity.
‘Professional’: refers to the Customer, whether a legal entity or an individual, who is acting for purposes relating to his or her commercial, industrial, craft, liberal or agricultural activity, including when he or she is acting in the name of or on behalf of another professional in the context of his or her professional activity.
‘Visitor’: refers to an Internet user who does not hold an Account and who visits one or more pages of the Web Site.
‘Order’: refers to the order for Photographic Products placed by a Customer with the Service Provider via the Web Site and for which payment is required.
‘Account’: refers to the individual account held by each Customer to which they can log in using a personal identifier and password.
‘General Terms and Conditions of Sale’: refers to these general terms and conditions of sale.
‘Privacy Policy’: means the document which explains in particular the way in which the Service Provider implements its obligations to protect the personal data of its Customers and informs them of their rights.
Article 2 - PURPOSE AND ACCEPTANCE OF THE GENERAL TERMS AND CONDITIONS OF SALE
The purpose of these General Terms and Conditions of Sale is to define the conditions applicable to Orders for Photographic Products placed by Customers via this Web Site.
The General Terms and Conditions of Sale may be consulted on the Service Provider's Web Site and are expressly accepted by the Customer prior to any Order being placed. Placing an Order implies the Customer's immediate, full and unreserved acceptance of the General Terms and Conditions of Sale.
Photographic Products may only be ordered on the Web Site by persons who are legally capable of entering into a contract.
The Service Provider reserves the right to modify the General Terms and Conditions of Sale at any time. The version of the General Terms and Conditions of Sale applicable to an Order is the one in force at the time the Order is confirmed by the Customer.
Article 3 - CHARACTERISTICS OF THE PHOTOGRAPHIC PRODUCTS
The essential characteristics of the Photographic Products for which an Order may be placed are indicated on the details of each Photographic Product on the Service Provider's Website.
Article 4 - ACCOUNT
Visitors may create an Account on the Provider's Web Site at any time, failing which they must create an Account when placing their first Order.
To do so, they must provide a certain amount of personal information, the accuracy of which they guarantee. They must also choose a password, the confidentiality and security of which they undertake to ensure. In the event of suspected use of their Account by a third party, they must inform the Service Provider immediately.
By creating an Account, the Customer acknowledges having read the Service Provider's Privacy Policy, which may be consulted at any time on the Website.
Article 5 - THE ORDER
Once the Customer has selected the Photographic Product(s) and before definitively confirming their Order, they may check the details and total price of the Order, modify it and correct any errors.
Having read and accepted these General Terms and Conditions of Sale by ticking the appropriate box, the Customer may then revise and definitively confirm their Order and proceed to payment by clicking on the ‘PAY’ button.
The Customer will receive an email confirming their payment and their Order, which will include all the contractual information, together with the General Terms and Conditions of Sale and the withdrawal form.
Article 6 - AVAILABILITY OF PHOTOGRAPHIC PRODUCTS
The Photographic Products offered are available as long as they are visible on the Service Provider's Web Site.
If a Photographic Product is unavailable after an Order has been placed, the Customer will be informed by email or telephone and the Order will be automatically cancelled.
Article 7 - PRICES AND TERMS OF PAYMENT
7.1 Prices
The price of the Photographic Products is indicated on the Service Provider's Site in Euros, inclusive of all taxes at the current legal rate of VAT.
The price does not include delivery charges. The Customer is informed of the amount of the delivery charges and the total price of the Order at the latest before confirming the Order.
The Service Provider reserves the right to change prices and/or delivery charges at any time. The prices and delivery charges applicable to an Order are those in force at the time the Order is confirmed by the Customer.
7.2 Secure payment
Orders shall be paid for in EURO, in a single payment and solely online, by paypal or by bank card (CB, Mastercard, Visa) via a secure payment system. The credit card information transmitted by the Customer is secure and encrypted and is not transmitted to the Service Provider.
The Customer guarantees that he/she is the holder of the bank card to be debited.
7.3 Reservation of ownership
The Photographic Products remain the property of the Service Provider until the price has been paid in full.
Article 8 - RIGHT OF WITHDRAWAL FOR THE CONSUMER CUSTOMER
8.1 How to exercise this right
The Consumer Customer has a period of 14 days from receipt of the Photographic Product ordered to exercise his right of withdrawal without having to give any reason or pay any penalties. To do so, the Customer must inform the Service Provider by sending an unambiguous statement or the withdrawal form attached to the General Terms and Conditions of Sale by e-mail or by post.
Once the Customer has communicated his/her decision to withdraw, he/she has a further period of 14 days in which to return the Photographic Product to the Service Provider.
The cost of returning the Photographic Product shall be borne by the Consumer Customer.
The Photographic Product must be returned by the Consumer Customer in its original condition, presentation and packaging, new and in perfect condition. In the event that the Photographic Product is damaged (damaged, worn, damaged, scratched, deformed, signs of wear, etc.) as a result of handling other than that necessary to establish its nature, characteristics and proper functioning, the Consumer Customer may be held liable.
The Service Provider will reimburse the Consumer Customer for all sums paid, including delivery costs (except for return costs, which remain the Consumer Customer's responsibility) no later than 14 days from the date on which the Consumer Customer is informed of its decision to withdraw.
8.2 No right of withdrawal
In accordance with article L221-28 of the French Consumer Code, the right of withdrawal does not apply to :
- The supply of goods made to the consumer's specifications or clearly personalised, such as photographic prints;
- The supply of digital content not supplied on a tangible medium, the performance of which has begun after the consumer's express prior agreement and express waiver of his/her right of withdrawal.
Professional Customers do not have a right of withdrawal.
Article 9 - DELIVERY
The Photographic Product is delivered to the address indicated in the Order. The Customer may also choose to collect the Photographic Product from the Service Provider's shop.
The Customer is informed of the expected delivery date or the date on which the Photographic Product will be made available in the Service Provider's shop before validating the Order, i.e. before payment.
In the absence of any indication or agreement as to the date of delivery or availability of the Photographic Product in the Service Provider's shop, the Service Provider shall deliver or make available the Photographic Product to the Customer no later than thirty days after the conclusion of the contract.
If the Customer chooses to collect the Photographic Product from the Service Provider's shop, the Service Provider will confirm by email that the Photographic Product has been made available. If the Customer fails to collect the Photographic Product within seven (7) calendar days of receiving such confirmation, the Service Provider may terminate the contract by operation of law, at its discretion, without prior notice pursuant to Article 1657 of the French Civil Code.
In the event of late delivery, the Service Provider shall not be held liable for any failure or delay in delivery due to force majeure or an event attributable to the Customer, such as negligence or failure by the Customer to fulfil its obligations, in particular incomplete or inaccurate details of the recipient or the Customer.
If the delivery time is exceeded for reasons other than force majeure or an event attributable to the Customer, the Consumer Customer may cancel the contract, in accordance with the terms and conditions set out in Article L216-2 of the French Consumer Code. Given that the Consumer Customer cannot choose a precise date for delivery or availability of the Photographic Product in the Service Provider's shop, the time for delivery or availability of the Photographic Product cannot be considered as constituting an essential condition of the contract for the Consumer Customer. Consequently, the Consumer Customer shall request the Service Provider by registered letter with acknowledgement of receipt to make the delivery or to make the Photographic Product available within a reasonable additional period and if the Service Provider fails to make the delivery or to make the Photographic Product available within this new period, the Consumer Customer may terminate the contract by registered letter with acknowledgement of receipt.
In accordance with Articles L216-3 and L241-4 of the French Consumer Code, the Service Provider will then reimburse to the Consumer all sums paid, no later than 14 days following the date on which the contract was terminated, failing which this sum will be increased by 10% if the reimbursement is made no later than thirty days after this deadline, by 20% up to sixty days and by 50% thereafter.
Article 10 - TRANSFER OF RISK
In accordance with the law, the risk of loss or damage to the Photographic Products is transferred to the Customer at the time when the Customer, the recipient or a third party designated by the Customer, takes physical possession of the Photographic Products.
Article 11 - LEGAL GUARANTEES
The Service Provider is liable for defects in the conformity of the Photographic Product with the contract under the conditions of L217-4 et seq. of the French Consumer Code) and for hidden defects in the Photographic Product sold under the conditions of articles 1641 et seq. of the French Civil Code.
When the Consumer Customer acts under the legal guarantee of conformity, he/she :
- has a period of two years from the date of delivery of the goods in which to take action;
-may choose between repairing or replacing the goods, subject to the cost conditions set out in article L. 217-9 of the French Consumer Code;
is exempt from having to prove the existence of a lack of conformity in the goods during the twenty-four months following delivery of the goods, except in the case of second-hand goods.
The legal guarantee of conformity applies independently of any commercial guarantee that may have been granted. The Consumer Customer may decide to invoke the guarantee against hidden defects in the goods sold within the meaning of article 1641 of the French Civil Code, in which case they may choose between rescinding the sale or reducing the sale price in accordance with article 1644 of the French Civil Code.
Any request under a legal guarantee must be made to the Service Provider via the ‘contact’ tab on the Site, by email or by post.
Article 12 - LIABILITY
The Service Provider shall in no event be liable for any failure to perform, or delay in performing, any of its obligations under these General Terms and Conditions of Sale that is due to force majeure as defined by the case law of the French Courts or to an act attributable to the Customer, such as negligence or a breach by the Customer of its obligations.
The Service Provider does not guarantee that its Website will operate continuously and without error and cannot be held liable for any damage arising from the use or unavailability of its Website, whether such damage is foreseeable, unforeseeable, material or immaterial.
Customers connect to the Service Provider's Website using their own telecommunications equipment. The Customer acknowledges that the display and operating performance of the Service Provider's Web Site depend to a large extent on the characteristics of the Customer's computer and the type of Internet connection. The Service Provider may not be held liable for any damage that may result from the use of the Internet, such as loss of data, intrusion, viruses, etc.
Article 13 - INTELLECTUAL PROPERTY
The Service Provider's Website and its components, such as photographs, images and texts, logos, trademarks, etc., are protected by the French Intellectual Property Code. The Service Provider holds the intellectual property rights or all the necessary authorisations or licences. Any reproduction, downloading, extraction, copy or representation, even partial, is prohibited and constitutes an infringement.
The Photographic Products transmitted on a material or computer medium are strictly limited to private use. Any use of the Photographic Products beyond this use and without the prior written authorisation of the Service Provider shall constitute an infringement of copyright.
Article 14 - PERSONAL DATA
The nominative information and personal data that must be entered in order to place an Order are necessary for the Service Provider to manage and process the Order.
Personal data is processed in accordance with the Service Provider's Privacy Policy, which the Customer may consult at any time on the Web Site.
Article 15 - SEVERABILITY
If one or more clauses of the General Terms and Conditions of Sale is/are declared null and void or inapplicable in application of a law, regulation or following a final decision by a competent court, it/they will be deemed unwritten, the other clauses retaining all their force and scope.
Article 16 - AMICABLE RESOLUTION - MEDIATION - APPLICABLE LAW
16.1 Amicable resolution and mediation
In the event of a dispute or difficulty arising between the parties, they undertake to make every effort to seek an amicable settlement.
The initiating party wishing to implement the present clause must send the other party a registered letter with acknowledgement of receipt or an email setting out the subject of the dispute. The receiving party must reply in the same way within a reasonable time of receipt of the letter or email. All the steps that the parties must take in order to reach an amicable resolution of the dispute must be completed within thirty (30) calendar days from the day following the date of receipt of the letter (or email) sent by the initiating party.
In accordance with EU Regulation 524/2013, the Consumer Customer may also contact the European Commission's portal for online dispute resolution by accessing the following link: https://webgate.ec.europa.eu/odr/. Complaints lodged on this platform are forwarded to the French mediation bodies.
16.2 Applicable law
These General Terms and Conditions of Sale are written in French. They may only be interpreted in their French version.
These General Terms and Conditions of Sale and the Orders are subject to French law and in the event of a dispute, the French courts shall have sole jurisdiction.