GENERAL CONDITIONS OF SALE
effective as of May 5, 2021
applicable to online sales
Article 1. AIM
1.1 The present general conditions of sale (hereinafter referred to as the « GCS « ) define the conditions of sale of bust sculptures made from photographs (hereinafter referred to as the « Creations ») by 6th SENSE (hereinafter referred to as “6TH SENSE »), via the website www.6sense.world (the » Website « ) to a consumer clientele (hereinafter referred to as the « Client(s) »).
1.2 The website is operated by 6TH SENSE, a limited liability company with a capital of €8000, registered in the Brest Trade Register under the number 884823188, whose head office is located at Z.A de Mespaol 2, 1 rue des Ateliers in SAINT-RENAN (29290).
1.3 6TH SENSE and the Client are collectively referred to as the « Parties » or individually a « Party ».
Article 2. ACCEPTANCE OF THE GENERAL CONDITIONS OF SALE
2.1 The fact that the Client ticks the box « I have read and accept the General Conditions of Sale of 6TH SENSE » when creating his/her client account on the website (hereinafter referred to as the « Client Account ») or before finalizing his/her order for a Creation (hereinafter referred to as the « Order ») constitutes an irrevocable and unconditional acceptance of the entire terms of the present document.
2.2 The Client declares and guarantees that he/she has the legal capacity to contract.
2.3 The GCS constitute the entire agreement between the Parties. Client’s unconditional acceptance of the GCS implies express waiver of any other prior document or exchange relating to the Order, or subsequent to the Order and not formalized by an express, written amendment signed by both Parties.
Article 3. CLIENT ACCOUNT
3.1 In order to place Orders and communicate information about the Designs, the Client shall create a Client Account (hereinafter referred to as the « Client Account »).
3.2 The Client Account may be created either during the Order process when the shopping cart is validated, or beforehand by clicking on the « My Account » tab displayed on the Website.
3.3 The Client must identify himself/herself with a valid email address and choose a password. The Client’s password must then be confirmed.
3.4 The Client must provide his/her first and last name, year of birth, postal address of permanent residence, telephone number and email address.
3.5 The Client must provide truthful, up-to-date and genuine information. Any changes must be made online and will take effect on the next business day.
3.6 The Client commits himself to keep strictly confidential the identifiers and password of his/her Client Account, in order to avoid as much as possible any risk of intrusion or usurpation of his/her Client Account. 6TH SENSE shall not be liable for any use of the Client Account by a third party.
3.7 The Client is prohibited from using the Website for any purpose other than placing Orders or communicating with 6TH SENSE.
3.8 6TH SENSE can automatically, without notice or compensation, deactivate the Client Account in the case of non-compliance by the Client with the GCS, non-payment by the Client of sums due or actions contrary to the interests of 6TH SENSE.
3.9 Any Client who wishes to deactivate his/her account, must notify 6TH SENSE by email at the contact address indicated on the Website.
Article 4. CREATIONS
4.1 The Creations are clearly personalized bust sculptures created from photographs provided by the Client of the face of a loved one (hereinafter referred to as the « Subject »). The Creations are sculptures reflecting an artist’s vision of the subject’s expressions in the photographs and are not standardized industrial reproductions.
4.2 The characteristics of the Creations and their bases are available on the Website or on request by email to email@example.com . The list of Creations and their characteristics presented on the Website may change at any time in order to best satisfy the Client’s needs, technical developments or to comply with any applicable regulations.
4.3 The photographs of the Creations on the Website are only indicative of the appearance of the Creations. They are as accurate as possible but cannot guarantee a perfect match with the Creations actually marketed, in particular with regard to their colors and textures. The conformity of the Creations shall be assessed in relation to the specifications and characteristics displayed on the Website, communicated to the Client at the time of Validation (as this term is defined below) or agreed upon in an offer, if applicable.
Article 5. ORDERS
5.1 Any Order placed on the Website implies the creation of a Client Account, the prior acceptance of the GCS and is accompanied by an obligation to pay.
5.2 Prior to placing an Order, the Client acknowledges having been informed of the information specified in Article L.111-1 of the French Consumer Code, and in particular the essential characteristics of the Creations and their prices.
5.3 In order to create a Creation, the Client shall provide several photographs representing the Subject, following the indications provided on the Site, particularly concerning the representations and format of the photographs.
5.4 The Client shall provide the information required to complete the Order (personal information, delivery and billing address) and choose the delivery method.
5.5 The Client commits himself/herself to give exact and updated information at the time of his/her Order. 6TH SENSE cannot be held responsible for any typing errors and their consequences.
5.6 A confirmation of the Order is sent to the Client by email.
5.7 For complex Orders that cannot be carried out using the information provided on the Website, a preliminary quotation will be established by 6TH SENSE on the basis of the information provided by the Client and subject to the feasibility of the Client’s project. The accepted quote will be returned in writing to 6TH SENSE during its validity period. Any quote signed and accepted by the Client implies full acceptance of the present GCS.
5.8 In accordance with the provisions of Article 6 of the GCS, a Creation proposal in the form of a 2D view board under different angles at 360° will be sent by 6TH SENSE to the Client for Validation.
5.9 The Client acknowledges and expressly accepts that 6TH SENSE reserves the right to refuse any Order in case of payment incident having affected the placing of previous orders by the Client or in case of non-compliance by the Client with the GCS applicable to any previous Order.
5.10 Given the care taken in the design of the Creations and the time required for their realization, the Client is informed that 6TH SENSE can refuse the validation of an Order if its maximum production capacities are reached. In such a case, an information message will be displayed on the Website or during the Order entry process. The Client may register on a waiting list to reserve an Order. In the event of availability, the Client will be informed by email and will have a period of twenty-four (24) hours to provide the elements required for the Order and to pay the displayed Price.
Article 6. VALIDATION OF CREATIONS
6.1 From the photographs provided by the Client, 6TH SENSE will elaborate a Creation proposal (hereinafter referred to as the « Proposal ») within a period of two (2) to twelve (12) weeks from the acceptance of the Order by 6TH SENSE.
6.2 The 2D view sheet and the Proposal in the form of a 3D model are sent in digital format to the Client by email or by notification in the Client Account.
6.3 From the moment the Proposal is made available, the Client has a period of seven (7) days to accept the Proposal as sent by 6TH SENSE (hereinafter referred to as the « Validation ») or to send to 6TH SENSE his/her written reservations concerning the Proposal.
6.4 In case of Validation, the Client signs and returns the receipt valid as a « good to print » to 6TH SENSE. The Validation is a final and unconditional acceptance of the Proposal and 6TH SENSE will start the production of the Creation.
6.5 In the absence of Validation, the Client sends his/her precise and detailed reservations to 6TH SENSE by email, within a maximum period of seven (7) days from the reception of the Proposal. 6TH SENSE reserves the right to refuse the treatment of any reservation sent after the deadline and to note the definitive refusal of the Proposal by the Client.
6.6 If the Client expresses admissible reservations, 6TH SENSE has a period of fifteen (15) days to modify the Proposal and send this new version of the Proposal to the Client for Validation.
6.7 6TH SENSE provides the Client with the possibility to issue up to two (2) notifications of reservations, corresponding to a maximum number of three (3) versions of the Proposal. Beyond three (3) versions of the Proposal, any new request for modification will be subject to the prior acceptance of a specific quote prepared by 6TH SENSE (subject to the technical feasibility of the Client’ s request).
6.8 The Client declares and acknowledges that the Creations are made by artists creating a bust of the Subject from several photographs provided by the Client. The representation of the Subject reflects the closest possible artistic interpretation to the photographs provided by the Client but does not constitute an identical representation of the Subject. Consequently, any reservations made by the Client cannot be based on necessarily subjective artistic differences.
6.9 In the absence of express Validation or in case of late notification of reservation, 6TH SENSE will automatically take note of the definitive refusal of the Proposal by the Client, will not proceed to the sculpture phase of the Creation and will invoice the Client only for the realization of the Proposal and/or the possible modifications of the Proposal agreed in a quotation.
Article 7. NO RIGHT OF WITHDRAWAL
7.1 The Client declares and acknowledges that the Creations are clearly personalized and unique sculptures, as they are specifically shaped according to the photographs of the Subject provided by the Client.
7.2 Consequently, in accordance with the provisions of Article L221-28, 3°) of the French Consumer Code, the Order of Creations made to measure according to the Client’s specifications or clearly personalized shall not give rise to the right of withdrawal under Article L211-18 of the French Consumer Code.
Article 8. PRICES AND TAXES
8.1 The unit prices of the Creations, as well as the possible price reductions, and any additional charges that may be due by 6TH SENSE, are communicated to the Client, in Euros, excluding taxes and all taxes included, and excluding external charges of any nature (hereinafter referred to as the « Price »).
8.2 The Price does not include the shipping costs. These costs are communicated to the Client before the validation of the Order and are indicated on the Order summary received by email and on the invoice.
8.3 6TH SENSE can modify the prices of the Creations at any time and without notice. However, the Price applicable to the Order will remain the one indicated during the final validation of the Order. The prices displayed on line or resulting from the Order are guaranteed, except in the event of display of derisory prices compared to the real selling price of the Creations, in particular because of an error, a technical malfunction of the Website or a computer bug.
Article 9. TERMS OF PAYMENT
9.1 Orders are placed on the Website.
9.2 Payment of the Price is made in two instalments, as follows:
Design of the Proposal: A first payment, the amount of which is indicated on the Website, is required at the time of the Order and corresponds to the design services;
Proposal Validation: The balance of the Price is paid at the time of the Proposal Validation.
9.3 In the absence of Validation, 6TH SENSE keeps the amount collected invoiced for the design of the Proposal.
9.4 Concerning the Orders preceded by a quotation, the deadlines and conditions of payment are indicated in the quotation sent to the Client.
9.5 The invoices of 6TH SENSE will be communicated to the Client by email or postal mail.
9.6 Unless otherwise agreed at the time of the finalization of the Order, the payment of the Creations is made in cash without discount.
9.7 Invoices are payable by credit card, by bank transfer (to the bank details given on the invoice), by check or any other method of payment indicated on the Website in accordance with the terms agreed upon when finalizing the Order on the Website or in the quote.
Article 10. DELIVERY / TRANSFER OF RISKS
10.1 The delivery of the Creation is ensured by the carrier designated by 6TH SENSE, unless otherwise expressly agreed by the Parties.
10.2 6TH SENSE ensures the delivery on the territory of the European Union to the address indicated by the Client within two (2) weeks following the date of reception by the Client of the notification of availability of the Creation, except for specific deadlines agreed by the Parties in the context of Orders on quotation. These deadlines shall not apply in the event of a breach by the Client of any of its obligations under the GCS or in the event of force majeure.
If the Client is not present at the time of the delivery, a delivery notice will be left in the Client’s mailbox. The Client will then be invited to approach the carrier. The costs of this second delivery will be charged to the Client.
10.3 Delivery is made by transferring physical custody of the Creation to the Client. The transfer of risks to the Client occurs at the moment when the latter, or any third party designated by him other than the carrier of 6TH SENSE, takes physical possession of the Creations.
10.4 In accordance with article 216-2 of the French Consumer Code, in case of delay between the effective delivery date and the one provided for in the Order confirmation, the Client will be able to cancel the Order, by registered letter with acknowledgement of receipt or by a written document on another durable medium, if, after having enjoined, according to the same modalities, 6TH SENSE to carry out the delivery within a reasonable additional time, the latter has not carried out within this time.
10.5 The Client shall take all necessary measures to receive the Order in the best possible conditions. If at the time of delivery, the original packaging is damaged, torn and/or opened, then the Client must check the condition of the items. If they have been damaged or soiled, the Client must refuse the parcel and note a reservation on the delivery slip (parcel refused because it has been opened or the creation damaged). The Client will then have to confirm by registered mail these reservations to the carrier at the latest within three (3) working days following the reception of the Order and to transmit a copy of this mail by simple mail to 6TH SENSE at the address indicated in the legal notices of the Website.
10.6 The Client will formalize his/her acceptance of the delivery by signing the delivery receipt issued by the carrier.
Article 11. RETENTION OF OWNERSHIP
11.1 6TH SENSE retains ownership of the Creation until the effective collection by 6TH SENSE of the full Price, even in case of granting of deadlines or facilities for payment.
Article 12. LEGAL AND COMMERCIAL WARRANTIES
12.1 Commercial warranty
12.1.1 The Creations are subject to a commercial warranty of twenty-four (24) months from the delivery.
12.1.2 In case the commercial warranty is called upon, the Client commits himself/herself to inform 6TH SENSE in writing within ten (10) days from the discovery of the defect(s). The Client undertakes to provide 6TH SENSE with any information that the latter may request in this respect.
12.1.3 After analysis, 6TH SENSE will indicate to the Client if the defect is covered or not by the commercial warranty. If the defect identified by the Client does not fall within the scope of the present commercial warranty, 6TH SENSE will submit to the Client an estimate for the repair of the defect or the replacement of the Creation. If the defect identified by the Client falls within the scope of the present commercial warranty, 6TH SENSE will indicate to the Client the procedure to return the Creation in question.
12.1.4 In order to benefit from the 6TH SENSE warranty, the Client commits himself/herself to follow the advice or maintenance instructions, if any, provided by 6TH SENSE on the Website or with the Creation.
12.2 Legal warranties of conformity and hidden defects
12.2.1 The Consumer benefits from the warranty of conformity of the thing sold (Articles L217-4 and following of the Consumer Code) and from the warranty against hidden defects (Article 1641 of the Civil Code), the provisions of which are reproduced below, in accordance with Article L211-2 of the Consumer Code:
12.2.2 Warranty of conformity:
12.2.3 In accordance with the provisions of Article L217-4 of the French Consumer Code, the seller is required to deliver goods in conformity with the contract and is liable for defects in conformity existing at the time of delivery. He/she is also liable for defects in conformity resulting from packaging, assembly instructions or installation when the latter has been put at his/her expense by the contract or has been carried out under his/her responsibility.
12.2.4 In accordance with the provisions of article L217-5 of the Consumer Code, the Creation (i) must be in conformity with the regulations in force, (ii) be suitable for the use expected of a similar good, (iii) correspond to the description made and possess the qualities presented by 6TH SENSE, and that a Consumer can legitimately expect with regard to any communication, in any form whatsoever, made by 6TH SENSE
12.2.5 In case of lack of conformity and if an identical replacement is impossible (unavailable material, etc.), the Client can either send the Creation back to 6TH SENSE, describing precisely the non-conformities observed and be reimbursed the price including VAT (delivery costs included), or accept the proposal made by 6TH SENSE of a Creation of an equivalent quality and price
12.2.6 The possible minor divergences of the delivered Creation compared to the Proposal accepted at the time of the Validation are not covered by the warranty of conformity.
12.2.7 Legal warranty against hidden defects
6TH SENSE is liable for two (2) years from the knowledge of the defect by the Client for defects inherent to the Creation and prior to the sale, making the sold Creation unfit for the purpose for which it was intended, and not detectable by the Client at the time of the sale. The Client can return the Creation or have the Price refunded under the conditions of articles 1644 and following of the Civil Code.
12.3 6TH SENSE Warranty disclaimers `
Any warranty is disclaimed in case of (i) default of payment of the Creations by the Client, (ii) alteration due to normal wear and tear or to the normal behavior of the material of the Creations, (iii) abnormal use and/or use that does not comply with the GCS and/or with the legislation and/or with the destination and/or with the conditions of use or maintenance of the Creations, (iv) modification, degradation or alteration of the Creations by the Client or by any third party not authorized by 6TH SENSE, (v) combination of the Creation with an element not supplied or approved by 6TH SENSE, (vi) intervention of a third party not authorized by 6TH SENSE for a repair and/or any work on the Creations, (vii) negligence of the Client (in particular light discoloration, lack of maintenance, use of abrasive and/or corrosive products or positioning in an unsuitable place), or (viii) force majeure.
12.4 Client’s warranty
The Client assures 6TH SENSE that he/she has all the rights and authorizations, if any, necessary to use the photographs of the Subject and to communicate them to 6TH SENSE, in order to realize the Creations for the Order.
Consequently, the Client guarantees 6TH SENSE against any recourse or claim from third parties or rightful claimants concerning the use of the documents transmitted by the Client in the context of the execution of the Order.
Article 13. RESPONSIBILITY
13.1 6TH SENSE commits itself to compensate the foreseeable direct prejudices that the Client could suffer in case of non-execution or bad execution of the Order, due to its fault or that of one of its employees.
13.2 6TH SENSE reminds the Client that he/she is solely and fully responsible for the use of the Creations and for any damage caused to third parties by him/her, the goods in his/her custody and/or the persons for whom he/she is responsible.
13.2.1 Exclusion of liability: 6TH SENSE cannot be responsible for any damage whatsoever and no warranty will be granted, in case of (i) default of payment of the Creations by the Client, (ii) defect due to normal wear and tear of the Creations, (iii) abnormal use and/or not in conformity with the GCS and/or the legislation and/or the destination and/or the conditions of use of the Creations, (iv) modification, (iv) modification, degradation or alteration of the Creations by the Client or any third party not approved by 6TH SENSE, (v) combination of the Creation with one or more elements whatsoever not supplied or certified by 6TH SENSE, (vi) intervention of a third party not authorized by 6TH SENSE for a repair and/or any maintenance work on the Creations, (vii) negligence by the Client, or (viii) force majeure
Article 14. INTELLECTUAL PROPERTY
14.1 6TH SENSE is the owner of all intellectual property rights relating to its know-how, the Creations and the Website, namely, if applicable, all copyrights, patents, designs, trademarks, domain names, etc. The Client acknowledges and accepts that the Order does not imply any transfer or concession to his/her benefit of the intellectual property rights of 6TH SENSE whatever they may be.
14.2 The Client retains all intellectual property rights to the photographs or documents that he/she provides to 6TH SENSE in the context of the execution of the Order.
14.3 For the duration necessary to realize the Creation for which the Order is placed, the Client grants 6TH SENSE, free of charge, the non-exclusive, sub-licensable right to reproduce, adapt, modify, distribute the photographs of the Subject provided by the Client for the whole world, on any format whatsoever and create a derivative work from them for the sole purpose of executing the Order.
14.4 Except with the prior express written consent of 6TH SENSE and without prejudice to the rights granted to it by the applicable law, the Client is not authorized (i) to reproduce and/or represent all or part of the Creations and/or their image and/or any distinctive sign of 6TH SENSE, and (ii) to file applications for industrial property titles relating to all or part of the Creations and/or their image.
Article 15. CONFIDENTIALITY
15.1 6TH SENSE is committed to respecting an obligation of confidentiality with regard to information concerning the Client and/or the Subject of which it would have knowledge during the establishment and/or the execution of an Order.
15.2 By ticking the relevant box when finalizing the Order, the Client expressly authorizes 6TH SENSE to publish a representation of the Creation on the Site or any presentation medium of 6TH SENSE in paper or digital format, as a reference or demonstration of 6TH SENSE’s know-how for a period of twelve (12) months tacitly renewable by identical periods. 6TH SENSE will not publish the name of the Subject and will not integrate the Creation in advertisements or announcements on social networks. At any time, the Client has the right to demand that the photograph of the Creation be removed by sending his/her request and a proof of the Order to 6TH SENSE at firstname.lastname@example.org. Concerning publications on paper, the withdrawal request will apply to any new edition.
Article 16. INSURANCE
6TH SENSE declares to be insured under the GCS for its professional liability, and undertakes to maintain this insurance coverage throughout the execution of the Order.
Article 17. FORCE MAJEURE
17.1 In the event of force majeure as defined in Article 1218 of the Civil Code, the obligations of the Parties under the Order shall be suspended for the duration of the force majeure and shall resume upon its termination, including in the event of governmental health measures preventing or delaying completion of the Order.
17.2 Failure to complete an Order due to force majeure shall not be subject to any remedy. In case of occurrence of such an event preventing 6TH SENSE to respect its commitments, 6TH SENSE commits to inform the Client as soon as possible.
17.3 The Parties may freely terminate the Order in case of persistence of the case of force majeure beyond sixty (60) days from the occurrence of the case of force majeure, without either Party being able to claim damages.
Article 18. PROCESSING OF PERSONAL DATA
18.1 The Client is informed that 6TH SENSE processes certain personal data necessary for the execution of the Contract and the design of the Creation, in compliance with the applicable regulations.
18.3 The Client expressly authorizes 6TH SENSE to use the image of the Subject as part of the design of the Creation and the execution of the Order and acknowledges that the fixation and/or reproduction of the image of the Subject on the Creation does not constitute an infringement of the privacy or personality rights of the Subject.
Article 19. TERMINATION FOR FAULT
Without prejudice to the other provisions of the GCS and any damages to which the non-defaulting Party may be entitled, either Party may terminate any Order early in the event of non-performance by the other Party of any of its obligations under the Order. Termination shall be effective automatically twenty (20) days after notice of default has been served by registered letter with return receipt to the defaulting Party without success.
Article 20. SUBCONTRACTING
20.1 6TH SENSE may subcontract all or part of the execution of its obligations to a third party and will inform the Client of its identity upon request.
20.2 6TH SENSE is fully responsible for the work entrusted to its subcontractors and for the respect of the provisions of the law n°75-1334 of December 31st, 1975 relating to subcontracting.
Article 21. MODIFICATION OF THE GCS
6TH SENSE reserves the right to modify at any time and without prior notice the GCS, which will apply to any new Order, even linked by any means to a previous Order, and invites the Client to read them in their entirety when placing each Order.
Article 22. NON-WAIVER
The fact that 6TH SENSE does not avail itself of any of the rights granted to it under the GCS cannot be considered as a waiver of the said rights at a later date.
Article 23. APPLICABLE LAW – COMPETENT JURISDICTIONS
23.1 The Order and the GCS are subject to French law.
23.2 The Client is hereby informed that he/she may have recourse to a conventional mediation procedure for consumer disputes or to any other alternative dispute resolution method.
Pursuant to the provisions of Articles L611-1 et seq. and R612-1 et seq. of the French Consumer Code, the Client is informed that he/she can address himself/herself to any competent consumer mediator in accordance with the provisions of section V of the French Consumer Code, provided that he/she (i) justifies having previously attempted an amicable resolution of the dispute with 6TH SENSE and (ii) refers to the competent mediator within a maximum period of twelve (12) months from the date of the written complaint addressed to 6TH SENSE.
If no solution is found, the dispute will be brought by the most diligent Party before the competent jurisdiction.
The mediator of consumption retained by 6TH SENSE is: Association de médiateurs bretagne ouest
The Client can also resort to the European online dispute resolution platform set up by the European Commission, intended to collect possible consumer complaints following an online purchase and accessible via the URL: https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home2.show&lng=FR