General Terms and Conditions of Sale
These General Terms and Conditions of Sale are current as of 1 Janvier 2019.
1.1 These General Terms and Conditions of Sale (hereinafter “GTCs”) are proposed by the company SMIIRL SAS (hereinafter the “Company”), with a share capital of €12,501.00, registered in the Paris Trade and Companies Register under no. 793 409 293, and whose registered office is located at 10 Rue de Penthièvre, 75008 Paris.
1.2 The Company is the owner and editor of the website internet www.smiirl.com (hereinafter the “Website”). The Website is hosted by AMAZON WEB SERVICE.
1.3 The Director of Publication is Mr Gauthier NADAUD.
1.4 The Website offers the customer (hereinafter the “Customer”) the possibility to purchase the following connected objects (hereinafter the “Products”): Real Time Counters for Facebook and Real Time Counters for Instagram (“Social Media Counters”) and customisable Counters (“Custom Counters”). To buy a Custom Counter, the Customer must have a personalised logo (hereinafter the “Logo”) and send it to the Company.
1.5 Before using the Website, the Customer must ensure that they have the technical and information technology resources to use the Website and to order Products from the Website, and that their Browser provides safe access to the Website. The Customer must also ensure that their hardware/equipment configuration is in good condition and does not contain any viruses.
2- ENFORCEMENT AND ENFORCEABILITY OF THE GTCs
2.1 The purpose of these GTCs is to lay down all the conditions under which the Company markets the Products as offered for sale on the Website to Customers. The GTCs shall therefore apply to any product order placed on the Website by the Customer (hereinafter the “Order”).
2.2 The Customer shall declare to have read and accepted these GTCs before placing the Order.
2.3 The Order confirmation shall therefore constitute an acceptance of these GTCs, which shall be regularly updated. The GTCs applicable to an Order shall be those in force on the Website on the date that the Order is placed.
2.4 Any contrary condition put forward by the Customer shall therefore, unless expressly accepted, be unenforceable to the Company, regardless of the time it is brought to the Company’s attention.
2.5 The fact that the Company does not choose to enforce, at a given time, a provision contained in these GTCs shall not be interpreted as a waiver of the subsequent enforcement of any provision of these GTCs.
3- PRODUCT ORDERS PLACED ON THE WEBSITE
3.1 The Company reserves the right to correct the content of the Website at any time.
3.2 The Customer shall select the Products they wish to purchase and may at any time access the Order summary (hereinafter the “Basket”).
3.3 The Basket is the list of Products selected by the Customer and includes any potential additional charges, such as delivery costs, that are added onto the cost of the Products contained in the Order. The Customer may amend the Order and correct any potential errors before confirming the Order. Additional costs corresponding to customs duties may be owed by the Customer. If such taxes are added to the delivery cost, the Customer shall bear the cost.
3.4 After accessing the Order summary, the Customer shall provide their contact, delivery, and billing details.
3.5 The Customer shall confirm acceptance of the Order by ticking the GTC validation box, followed by clicking on the Order confirmation icon.
3.6 After accepting the GTCs and confirming the Order with obligation to pay, the contract shall be validly concluded between the Company and the Customer and shall commit them irrevocably.
3.7 The Customer shall pay for the Order according to the terms and conditions specified in Article 4 of these GTCs.
3.8 The Company shall send the Customer an order confirmation by email, specifying the items in the Basket as well as the delivery and billing addresses previously provided.
4- PRICES AND TERMS OF PAYMENT
4.1 Product prices shall be indicated on the Website in the Product descriptions and cited in euros, pounds sterling, and American dollars, Canadian dollars & Australian dollars excluding tax.
4.2 The total amount of the Order including all taxes shall be displayed in the Basket.
4.3 A Product Order placed on the Website shall be payable in euros, pounds sterling, American dollars, Canadian dollars & Australian dollars. Full payment must be made by the Customer by bank card on the day the Order is placed, except where other special conditions are expressly accepted by the Customer and the Company.
4.4 In the event that payment is made by bank card, the Website shall use the security system offered by Stripe, a service provider specialising in secure online payments. This system guarantees that the Customer’s bank details are kept completely confidential. A card transaction made by the Customer using the secure system is therefore fully encrypted and protected. This means that information relating to the Order and the bank card number is not circulated online. The Customer’s bank details shall not be stored digitally by the Company. The Customer shall guarantee the Company that they have the authorisations required to use the payment method at the time the Order is placed.
4.5 The Company reserves the right to suspend or cancel the fulfilment and/or delivery of any Order, regardless of its nature and stage of fulfilment, in the event of non-payment or partial payment of any amount due by the Customer to the Company, in the event of a payment incident, or in the event of fraud or attempted fraud relating to the use of the Website and payment of an Order.
4.6 The means of payment secured by Stripe and available on the Website are:
- Credit card
- iDeal (Netherlands);
- Bancontact (Belgiume), Sofort (Austria, Belgium, Germany, Italy, Netherlands, Spain);
- SEPA Direct Debit (Austria, Belgium, France, Germany, Italy, Netherlands, Luxembourg, Portugal, Republic of Irelande, Spain,);
- Giropay (Germany).
PayPal is available for USD orders only.
5.1 General information:
Order can be delivered to the following countries: Albania, Algeria, Andorra, Argentina, Armenia, Australia, Austria, Bahamas, Bahrain, Barbados, Belgium, Bermuda, Bolivia, Bosnia-Herzegovina, Bulgaria, Canada, Canary Islands, Chile, Columbia, Costa Rica, Cote d’Ivoire, Croatia, Cyprus, Czech Republic, Denmark, DOM-TOM, Egypt, Estonia, Finland, France, Germany, Greece, Guadeloupe, Guatemala, Honduras, Hong-Kong, Hungary, Iceland, Indonesia, Ireland, Israel, Italy, Japan, Jordan, Kazakhstan, Kuwait, Latvia, Lebanon, Liechtenstein, Lithuania, Luxembourg, Macedonia, Madagascar, Malta, Martinique, Mexico, Moldova, Morocco, Netherlands, New Zealand, Nicaragua, Norway, Oman, Paraguay, Peru, Poland, Portugal, Puerto Rico, Qatar, Romania, Saudi Arabia, Senegal, Serbia, Seychelles, Singapore, Slovakia, Slovenia, South Africa, South Korea, Spain, Sweden, Switzerland, Thailand, Tunisia, Turkey, United Arab Emirates, United Kingdom, United States, Uruguay.
Products shall be delivered to the delivery address provided by the Customer when placing the Order. The Customer therefore undertakes to receive the Products at the address provided on the purchase order. Delivery shall be understood as the transfer to the Customer of the physical possession or control over the goods.
The Customer shall be responsible for checking the accuracy of the information provided before confirming the Order (building number, floor, name on the intercom, electric lock, etc.). In the event of an error in the recipient’s delivery address (especially the surname, name, street name and number, post code, city name, telephone number, or email address), the Company cannot be held responsible should delivery of the Order prove impossible.
Delivery shall be carried out by third-party transport service providers mandated by the Company (hereinafter the “Carrier”).
The Order shall be delivered in a single shipment. Nevertheless, the Company reserves the right to split the Customer’s Order into several shipments at no additional cost to the Customer. If the Customer requests the Order to be split, however, the delivery cost of each shipment shall be charged to the Customer.
Reminder: The Company reserves the right to refuse to carry out a delivery or to honour an order placed by a consumer who has not paid for a previous order in full or in part or a consumer involved in a payment dispute.
5.2 Delivery conditions:
The Company undertakes to deliver the Products within 15 working days from the date of the Order. Once the Order is ready, the Customer shall be notified by email that it has been shipped and the Product(s) ordered shall be delivered to the delivery address provided by the Customer when placing the Order.
If a product was to be out of stock, the Customer will be notified of the estimate delivery time on the Website and in the order success email after placing the Order.
Delivery shall be made to the door of the address provided by the Customer and in their presence or the presence of any person authorised to accept the goods. Carriers shall not be required to enter the Customer’s home. The Company reserves the right to not fulfil an order from a Customer who was unable to prove their delivery address upon the request of Customer Support or the Carrier.
The Customer agrees to provide proof of their identity, if the Carrier requests it, by means of a valid official identity document and, if necessary, by quoting the order number assigned by the system to the Order and contained in the Order confirmation email.
If the Customer is unable to receive the Order personally, they must instruct a third party to act on their behalf after providing them with written authorisation and a photocopy of the Customer’s identity card.
Any requests relating to the delivery of the package shall not be honoured if the Customer does not respect the conditions indicated above.
If, in the event of delivery to the Customer’s workplace, the Carrier does not have access to the premises, the Customer must take all the necessary precautions to ensure that the Carrier is able to deliver the Order and that the Customer is able to receive it.
The Company cannot be held responsible for the Order being delivered to a third party present at the delivery address provided by the Customer when confirming the Order.
As soon as the Order is delivered to the Customer at the address provided and after the Customer has signed the delivery slip, the Company will have fulfilled its delivery obligation. The Company therefore declines all responsibility in the event of subsequent loss or theft.
5.3 Delivery charges:
Delivery charges may be required. Delivery charges will vary depending on the basket amount.
5.4 Receipt of products:
The Customer undertakes to be present at the delivery address provided on the day and during the entire duration of the time slot chosen. The Customer undertakes to sign the delivery slip presented by the Carrier and on which the Customer must write down by hand any reservations about the delivered products in a concise but detailed manner. In particular, the Customer must count the number of parcels delivered.
In the event that Products are found to be damaged or missing, the Customer must note any reservations on the delivery slip and contact the Company’s Customer Support to follow up on the dispute.
5.5 Managing disputes and returning goods
In the event of a dispute, the original packaging must be kept until the dispute has been resolved. The Company advises the Customer to inform Customer Support of any disputes within 48 hours from the time of delivery.
In the event of an incident during delivery, the Customer is advised to contact the Company’s Customer Support in the presence of the delivery driver to state the damages that occurred during delivery. Thereafter, the Customer must confirm the incident by email to firstname.lastname@example.org within 48 hours; someone from the Company’s Customer Support team shall subsequently contact the Customer to agree on potential compensation arrangements resulting from the damage.
The Company shall be authorised to send an expert to the Customer’s delivery location to validate, or not, the conformity of the delivery.
The Company undertakes to provide a response to any requests or complaints within 10 days from the date they are first received.
5.6. Delivery time
The Company shall do its utmost to adhere to the agreed times for the delivery of the ordered products. In the event that the delivery time cannot be respected, the Customer shall be automatically informed by all means, including email, SMS and telephone.
If a product was to be out of stock, the Customer will be notified of the estimate delivery time on the Website and in the order success email after placing the Order.
6- CUSTOMER SUPPORT
6.1 For any requests for information, enquiries, or complaints, the Customer must first contact the Company’s Customer Support.
6.2 The Company’s Customer Support is available Monday to Friday from 9am to 1pm and 2pm to 6pm, French time (UTC/GMT +1) – except Public Holidays & Bank Holidays – via the following avenues:
Online help form: https://my.smiirl.com/en/support
7.1 The Company guarantees that the Product does not infringe any patents or copyrights, both French and international. Consequently, the Company undertakes to defend, at its own expense, the Customer against any action brought against them on the grounds that the use of the Product infringes the rights of a third party. Provided that the Customer informs the Company immediately in writing of any such action brought against them and gives the Company full control of the defence and/or any action with a view to reaching a settlement, the Company undertakes to pay any expenses and allowances that could be charged to the Customer by the competent courts on such grounds.
7.2 All the Products offered by the Company shall be subject to the legal guarantee of conformity provided for by the law and particularly Articles L.211-4, L.211-5 and L.211-12 of the French Consumer Code, and to the warranty against latent defects provided for by Articles 1641 and 1648, first paragraph, of the French Civil Code:
Article L.211-4 of the French Consumer Code: “The Company must deliver goods which are in conformity with the contract and shall be liable for any lack of conformity which exists at the time the goods were delivered.
The Company shall also be held liable for any lack of conformity caused by the packaging, assembly instructions, or installation when these have been made its responsibility by the contract or have been performed under its responsibility.”
Article L.211-5 of the French Consumer Code: “To comply with the contract, the product must:
1. Be suitable for the use normally expected of such a product, and where applicable:
– match the description provided by the Company and have the features presented to the buyer in the form of a sample or model;
– have the qualities that a buyer might legitimately expect in view of public statements made by the Company, the producer, or their representative, particularly in advertising or on labelling;
2. Or have the features defined by mutual agreement between the parties or be suitable for any special requirement of the buyer which was made known to the seller and which the latter agreed to.”
Article L.211-12 of the French Consumer Code: “Action resulting from defects in conformity shall lapse after two years from the date of delivery of the goods.”
Article 1641 of the French Civil Code: “The Company shall be liable for latent defects that prevent the product sold from being suitable for its intended use, or that reduces its use to the point that the buyer would not have acquired it, or would have demanded a lower price had they known about them.”
Article 1648 of the French Civil Code, first paragraph: “Action resulting from latent defects must be brought by the buyer within two years from discovering the defect.”
7.3 If a Customer deems to have received a Product that they consider to be defective or not in conformity, they must contact the Company within 14 days from receiving the Order by writing to the following email address: email@example.com, stating the defect or the non-conformity in question.
7.4 The Customer shall be responsible for providing all justification relating to the identification of the apparent defects and/or anomalies found. The Customer shall give the Company every opportunity to investigate these defects or the non-conformity and to provide a solution, where appropriate. The Customer shall refrain from taking action themselves or requesting action to be taken by a third party to this end.
7.5 If the Company confirms the defects and/or anomalies, it shall send the Customer instructions on how to proceed after becoming aware of the complaint lodged and, where appropriate, shall replace the Product of which the Company was notified as having a lack of conformity or a defect.
8- OBLIGATIONS OF THE CUSTOMER
8.1 The Customer undertakes to respect the provisions of these GTCs.
8.2 The Customer undertakes to use the Website and the Products according to the Company’s instructions.
8.3 The Customer agrees to use the Website for personal use only, in accordance with these GTCs. In this respect, the Customer agrees not to:
– Use the Website in any way that is illegal or inconsistent with these GTCs;
– Sell, copy, reproduce, rent, lend, distribute, transfer or sub-license Website content, in whole or in part, or decompile, reverse engineer, disassemble, modify, display in a format that can be read by the Customer, attempt to discover any source codes, or use any software that activates or consists of the entirety or part of the website;
– Attempt to obtain unauthorised access to the Website’s computer system or engage in any activity that disrupts, reduces the quality, or interferes with the performance or impairs the functionality of the Website;
– Use the Website for inappropriate purposes by knowingly introducing viruses or any other malware and to attempt to access the Website without authorisation;
– Infringe the Company’s intellectual property rights.
8.4 If for any reason the Company believes that the Customer does not respect these GTCs, the Company may, at any moment and at its sole discretion, withdraw the Customer’s access to the Website and take any necessary measures, including any civil and criminal legal action against the Customer.
8.5 With regard to purchasing Custom Counters: the Customer is personally responsible for the use of the Logo incorporated into the Custom Counter ordered. The Customer agrees not to include in the Logo any text, images, drawings, trademarks or service marks, or any other work for which the intellectual property rights belong to any third party without the copyright owner’s prior consent. The Customer guarantees that the Logo does not infringe on any rights of a third party (including intellectual property rights, trademarks, rights relating to personality, and privacy rights), that he or she will not slander or defame a third party, and that he or she has all the required rights or necessary authorisations to incorporate content belonging to a third party in the Logo, including any content available through the service provided by any third party accessible via the Website. By placing an order on the Website, the Customer guarantees that he or she has all the necessary rights, authorisations, and authority to place the order and that he or she authorises the Company to print the Logo on his or her behalf. The Customer authorises the Company to copy, modify, create templates and derivative items, and vectorise the entire Logo for the purposes of fulfilling the order.
8.6 The Customer agrees to use the Website responsibly and in complete accordance with the Terms and Conditions of Use as well as local laws and regulations, including import/export rules. Without exception, no part of the Logo can be used as a trademark or service mark; for pornographic, illegal, or defamatory purposes; to invade private or public life; or to infringe on intellectual property rights, trademarks or service marks, or any other intellectual property rights of any person or entity. The Customer agrees not to use Logos that are offensive, illegal, harassing, slanderous, threatening, harmful, obscene, malicious, or otherwise objectionable. The Company has the right to stop providing its services to Customers who are found to be using a Product for undesirable purposes.
9- RIGHT OF WITHDRAWAL
9.1 In accordance with Articles L.121-21 et seq. of the French Consumer Code, the Customer shall have a period of 14 clear days from the receipt of the last Product ordered on the Website to exercise their right of withdrawal with the Company, without having to provide justification or pay any penalties.
This withdrawal period shall apply only to products classed as “social media Counters” and not to products classed as “custom Counters” because the latter are customised by the Customer.
9.2 To exercise their right of withdrawal of the Order, the Customer must inform the Company of their decision to withdraw by means of a declaration that is free of any ambiguities, without having to justify their reasons. The Customer may communicate their decision to withdraw to the Company by any means, including by sending an email to firstname.lastname@example.org.
9.3 When placing the Order, the Customer shall be provided with a withdrawal form, which must be completed. Once completed, the withdrawal form, serving as the decision to withdraw, may be sent directly to the Company by clicking on the Submit icon provided for that purpose.
9.4 In the event that the Customer notifies the Company of their decision to withdraw, regardless of the means used, the Company shall send an email acknowledgement of receipt of the withdrawal without delay.
9.5 The Customer must return the Product(s) in the same condition as it was/they were received and with all the packaging components, accessories, and instructions (even if the Product(s) has/have been unpacked) at the earliest opportunity and within 14 days from the notification of the decision to withdraw from this contract, to the following address: SMIIRL, 18/20 Rue Soleillet, 75020 Paris, FRANCE. In accordance with French law, the Company shall cover the cost of the return postage of the Product(s).
9.6 The Customer is asked to provide the reason for the return/withdrawal in order to help the Company improve its services.
9.7 In the event of withdrawal by the Customer, the reimbursement for the Product(s) which is/are subject to the right of withdrawal shall be made by the Company by bank transfer, unless the Customer expressly agrees to a different method. In any event, the reimbursement shall not incur any costs to the Customer. The reimbursement shall be made as soon as possible and within a maximum of 14 days from the receipt by the Company of the Product(s) returned in its/their original packaging.
9.8 In accordance with Article L.121-21-3 of the French Consumer Code, the Customer shall be informed that they shall be liable to the Company only for a depreciation of the Product(s), returned following the exercise of the right of withdrawal, resulting from handling beyond what is necessary to ascertain the nature, characteristics, and proper functioning of the goods.
10.1 The Company shall implement all the necessary measures to ensure that the Customer receives high-quality Products in the best circumstances possible. However, the Company shall under no circumstances be held liable for any non-execution or defective execution of all or part of the services provided for in the Contract that is attributable either to the Customer, the unforeseeable or insurmountable act of a third party not involved in the Contract, or a case of force majeure. More generally, if the Company could be held liable, under no circumstances shall it accept to compensate the Customer for indirect damages or damages of which the existence and/or quantum cannot be established by evidence.
10.2 The Website may contain links to other websites that are not published or controlled by the Company, which may not be held responsible for the functioning, content or any element found or obtained through these websites.
10.3 The inclusion of such links or any references to information, articles, or services provided by a third party cannot and shall not be interpreted as an express or tacit endorsement by the Company of these websites, their components, or their content.
10.4 The Company shall not be responsible for the availability of these websites and cannot control the content or approve the advertising, products, and other information available on these websites.
10.5 It is specifically stated that the Company cannot under any circumstances be held responsible, in any way, for cases where the Customer’s hardware or electronic mail system rejects, for example due to anti-spam software, emails sent by the Company, and particularly, including but not limited to, the copy of the receipt of payment, the order summary, and the delivery tracking email.
10.6 The Customer shall be fully aware of the provisions of this article and particularly the aforementioned guarantees and limits for liability, which are essential prerequisites for the Company entering into an agreement.
11- PERSONAL DATA
11.1 In accordance with the French law of 6 January 1978 on data protection and privacy, as amended, the Customer shall be informed that the Company will collect and process their personal data in order to help it process and carry out the Customer’s Order(s) placed on the Website.
11.2 Mandatory information, referring to information without which the order process on the Website shall not proceed, includes: Surname/Name/Email/Telephone/Delivery address/Billing address.
11.3 The Customer shall have the right to oppose, access, rectify, and remove their personal data, as well as the right to object for legitimate reasons, which they may exercise under conditions laid down in the law, by sending an email to the Company to the address email@example.com, specifying their surname, name, and email address.
11.4 No information regarding the Customer may be passed on to third parties, except for the Company’s service suppliers, solely for the purposes of maintenance and hosting of the Website and fulfilling Orders, and limited to the information strictly necessary for those purposes.
12- INTELLECTUAL PROPERTY
12.1 All components of the Website and the Website itself shall be protected by copyright, trade mark right, design rights, and/or any other intellectual property rights. These components are the exclusive property of the Company. All these rights are reserved worldwide.
12.2 The “Smiirl” name and brand, logos, designs, stylised letters, figurative marks, and all the signs used on this Website are and shall remain the exclusive property of the Company.
12.3 No title or right to any component or software shall be obtained by downloading or copying Website components. The Customer shall be formally prohibited from reproducing (except for personal and non-commercial use), publishing, editing, sending, distributing, showing, removing, deleting, or adding to this Website and the components and software it contains, nor shall they be authorised to modify them or perform any work by using them as a base, or sell or participate in a sale relating to this Website, its components, and any software related thereto.
12.4 The Company shall grant the Customer a non-exclusive license to use the Website. This license shall be strictly personal and may not under any circumstances be assigned or transferred to any third party. The license shall be granted for the duration of the use of the Website.
12.5 The Customer shall be strictly prohibited from using trade names, logos, and distinctive signs belonging to the Company without the Company’s express and prior agreement.
13.1 By filling in the relevant field or giving express agreement to this end, the Customer shall accept that the Company may send, at a frequency and in the form determined by the Customer, a newsletter that may contain information pertaining to the Customer’s activity.
13.2 Subscribed members shall be free to unsubscribe from the newsletter by clicking on the link provided for this purpose and found in every newsletter.
14- APPLICABLE LAW AND ALLOCATION OF JURISDICTION
14.1 These GTCs shall be governed by and interpreted in accordance with French law, without regard to any principles of conflict of laws.
14.2 In the event of a dispute likely to arise in relation to the interpretation and/or execution of the present provisions or in relation to the present Website and/or any purchase and/or attempt to purchase through the Website, the parties shall agree to abide by a conventional mediation procedure or any other alternative dispute settlement method.
14.3 In the event that this mediation procedure fails, the rules of the French Code of Civil Procedure shall apply.