PREAMBLE

These terms of sale (the “Terms of Sale”) constitute the sole basis for the commercial relationship between the parties. Their purpose is to set out the specific terms governing all orders for products belonging to the “GRAD®” brand placed with BURGER ET CIE SAS, ZI BOIS L’ABBESSE, 68660 LIEPVRE or its subsidiaries (hereinafter referred to as the “Seller”) by its clients (hereinafter referred to as the “Client(s)”).

The Seller and the Client will collectively be referred to as “the Parties”.

Consequently, any order (hereinafter “Order(s)”) placed with the Seller automatically constitutes, as a basic material condition, full, complete and unreserved acceptance by the Client of these Terms of Sale, which constitute the sole basis for commercial negotiation, in accordance with the provisions of Article L. 441-1 of the Commercial Code.

Any conflicting terms, including any general or special conditions, issued by the Client, as well as any terms of purchase and purchase orders are therefore unenforceable against the Seller unless accepted in writing in advance by the Seller.

The failure of the Seller to insist upon the performance any of these Terms of Sale at any time shall not be construed as thereafter waiving any of said Terms of Sale.

The Terms of Sale may be amended at any time at the Seller’s discretion without having to complete any formality other than posting them on the www.grad-system.com website or sending them by e-mail to the Client, and the only applicable version shall be the latest version and/or that which applies on the date of receipt by the Seller of the acceptance of the offer by the Client. These amendments shall not entitle the Client to any claim for compensation. The Terms of Sale apply to all the products sold by the Seller, in addition to any special conditions that may be applicable to the product. In the event of a contradiction between these Terms of Sale and the special conditions that are specific to a product or a Client, the special conditions shall prevail.

The purpose of the Terms of Sale is to define the terms of sale of the “GRAD®” branded products sold by the Seller or its subsidiaries to Clients, namely:

• Decking and cladding covering elements manufactured by the Seller’s supplier partners that may be modified by the latter;

“GRAD®” branded structural elements for patios and cladding elements manufactured directly by the Seller.

Certain special conditions relating to the products sold may appear on the order form for the products. If this is the case, these conditions prevail over all other contractual conditions.

As for the information, prices and references printed on the catalogues and prospectuses of the Seller, they are given for information purposes only and may be revised at any time. The Seller is entitled to make any modifications it deems necessary.

ARTICLE 1 – ORDER PLACEMENT

Contractual documents

Following the placement of an Order accepted by the Seller, a sales contract is entered into (hereinafter the “Contract”) that is made up of the documents set out and ranked below in descending order of priority, with the higher ranked document taking precedence over the following ones in case of contradiction:

• Purchase order;

Order acknowledgement;

Any special conditions of sale;

Terms of Sale;

Terms of Sale.

When the Contract is formed, the Parties (except in the event of a disagreement expressed in writing by the Client) also agree that the contractual nature of the documents set out below applies in full to the relationship between the Parties:

• The Brand Identity Guidelines specific to the use of the “GRAD®” brand;

All the guidelines and instructions setting out the Seller’s advice and recommendations on how to install and maintain the “GRAD®” branded products, which can be consulted using the following internet link: https://grad-system.com

The Contract and aforementioned documents shall constitute the entire agreement between the Parties. It cancels and supersedes any prior or contemporary oral or written stipulation relating to the same subject matter.

1.2 Conditions for placing the Order

Orders can be sent by post, by e-mail or by electronic data interchange (EDI) to the following address:

BURGER ET CIE

ZI Bois l’Abbesse

68660 LIEPVRE

Any Client with a request regarding an order, a price, a dispute or any other problem relating to the commercial relationship of the Parties may send an email to the following addresses:

clientburger@burger.fr

• in the case of an order delivered in mainland France,

customerservicerow@burger.fr in the case of an order sent for export.

The Order placed by the Client only becomes binding with the express acceptance in writing of the Seller, which may be sent either by post or by email, with the written acceptance of the quote, or with the sending of an acknowledgement of receipt of order subject to sufficient stocks being available.

The acknowledgement of receipt of order mentions any changes to the special features of the Order made by the Seller in case the Order initially issued by the Client to the Seller cannot be processed. The modifications made must be confirmed in writing by the Client and lead to the processing of their order. The failure of the Client to respond in writing within 5 working days of receipt of the changes shall be deemed tacit acceptance.

Cancellations or modifications of the Client’s Order during execution or finishing shall not be accepted by the Seller without their prior written acceptance.

In the event of the cancellation of an order by the Client after its acceptance by the Seller for any reason whatsoever except the case of force majeure, the Client will be charged 20% of the total order value excluding tax by way of a penalty clause by the Seller for damages to compensate for the loss to the Seller following the cancellation of the order.

In the exceptional event of a return, a discount of at least 20% will be applied to the sale price excluding tax of the products concerned.

The data recorded in the Seller’s Order processing IT system shall be deemed proof of all of the transactions concluded with the Seller.

1.3 Deposits and guarantees

In the event of a solvency problem observed by the Seller, it reserves the right to require the Client to pay the full amount of the Order or any deposit, the amount of which shall be freely decided by the Seller, before shipping the products.

To this end, the Seller shall send the Client a pro-forma invoice.

The Seller reserves the right, even during the execution of the Order, to demand a guarantee to ensure that the commitments made will be honoured in full. Should the Client refuse, the Seller shall be entitled to cancel all or part of the Orders placed.

1.4. Presentation of non-contractual products

The information provided about the presented products is subject to minor modifications which may be useful and necessary, and may be added to the definition of the presented product.

As a result, the Seller may at any time offer the Client a product that is more suited to its Order, especially regarding the type of wood, components and dimensions of the product concerned. With the Client’s agreement and without penalty, the Seller reserves the right to modify the order concerned.

The Seller reserves the right to withdraw from its catalogues, prospectuses and commercial offers any product that no longer corresponds to the actual expectations of its Clients at any time, and to put an end to the marketing of the products in question.

ARTICLE 2 – PRICES

2.1 Price conditions

The prices of the products are set by the pricing conditions applicable on the date on which the Order is placed by the Seller or on the date of delivery; and; where applicable, by the specific commercial proposal addressed to the Client setting out the price applicable to the products or services ordered.

All ancillary costs related to a sale (shipping costs, customs duties and insurance costs) are set on a case-by-case basis by the Parties according to the standards that apply on the day of the Order and, out of principle, are borne by the Client in the absence of any agreement.

The catalogues are available on the https://grad-system.com/ website.

Only the written quote or the acknowledgement of receipt of the Seller’s order is binding. In the event of a contradiction between a quote and an acknowledgement of receipt of order, the statements made in the acknowledgement of receipt of order take precedence.

The prices, information and descriptions given in the catalogues and prospectuses, or orally or by telephone, are given for information purposes only, and the Seller reserves the right to make any modification that it deems useful and necessary given that the written quote alone is binding.

The prices are expressed in Euros excluding VAT.

Any price proposal from the Seller is made for a specific volume of equipment.

The prices shown are no longer valid in the event of a partial Order, an Order with a staggered delivery, or in the event of modification of a single term of the initial proposal, without the Seller’s prior written agreement.

2.2 Validity period

The proposed offers or quotes are valid for one (1) month from their date of issue and any Order placed at the end of this period of one (1) month must be confirmed in writing by the Seller.

ARTICLE 3 – DELIVERY CONDITIONS

3.1 Delivery times

The parties agree that a delivery is understood to refer to the taking possession of the product ordered from the Seller.

The Seller’s delivery times set out below are given for information purposes only and are in no way guaranteed by the Seller:

− Mainland France: 2 to 3 weeks;

–  DROM COM * – Corsica: deadline to be agreed between the Parties;

− European imports: 4 to 5 weeks;

− Long-distance exports: 3 to 5 months;

− For made-to-measure orders, a rough delivery time is communicated to the Client.

The Client shall not, under any circumstances, benefit from the following in the event of any delay in the delivery of the products:

– award of damages;

− award of penalties; and/or

− cancellation of the Order.

*The French overseas departments or regions (DROM) include: Martinique, Guadeloupe, Guyana, Reunion and Mayotte

*The French overseas communities (COM) include: French Polynesia, Saint-Pierre-et-Miquelon, Wallis-et-Futuna, Saint-Martin and Saint-Barthélemy.

The Seller disclaims all liability for the non-performance or delay in performance of the Contract or the Order in progress because of a virus qualified as a pandemic or an epidemic as recognised by the national authorities of one of the Parties leading to a reduction in business as a result of the restrictions imposed by the authorities or the health situation (protection of customers and/or employees), a strike, fire, flood, administrative obstacle, manufacturing or tooling accident, total or partial shortage of energy, transport or raw materials, change in import or exchange conditions, loss of power and, in general, any event beyond the control of the Seller that occurs after the sale has been concluded and prevents the performance of the Contract or the Order in whole or in part under normal conditions, as well as in the event of force majeure as defined by the case law of the French courts.

Should the impediment be temporary, the performance of the obligation shall be suspended.

Nevertheless, the Parties will endeavour to minimise the consequences as far as possible.

Failing this, if the impediment is permanent, i.e. after 30 days, the Parties will be released from their obligations under the conditions provided for in Articles 1351 and 1351-1 of the French Civil Code.

3.2 Transport

The Client always assumes the risk for the transportation of the products and is responsible for checking the products upon receipt in the presence of the delivery driver/carrier and immediately recording all reservations and lodging the required specific complaints with the carrier, under the conditions specified in Article L. 133-3 of the French Commercial Code (reservations on receipt, confirmed by recorded post within three calendar days, not including public holidays).

Any delay and any anomaly upon delivery, including the quantities (expected products and pallets) stated on the delivery notes that do not match the actual delivery, must be recorded on the carrier’s receipt.

Please note: if there are no reservations mentioned on the carriers’ consignment note, the Client receiving the goods must demonstrate the fault of the carrier. Otherwise, the responsibility of the carrier or the Seller cannot be called into question.

If the anomaly has not been identified (concealed damage) or if the driver contests the reservation with a contraposed written statement, or if the reservation on the receipt is not legally valid (imprecise, or badly or not justified), the Client shall send a recorded letter with acknowledgement of receipt or an email within 72 hours of the delivery to the following address:

clientburger@burger.fr

• in the case of an order delivered in France (excluding CORSICA – DROM -COM),

customerservicerow@burger.fr in the case of an order sent for export.

Under no circumstances shall the Seller be liable for a delay in delivery attributable to the carrier or the preparation of the support system to receive the products sold by the Seller.

After this period, any delivery, including those on any logistics platform, will be recognised as compliant and cannot be the subject of any claim. The Seller’s liability is limited to the replacement or reimbursement of the products found to be defective or missing, within the context of compliance with the procedure described in article 4 of these Terms of Sale.

In addition, the Seller disclaims all liability in the event that the products sold are stored in unusual conditions or conditions that are incompatible with the type of product stored.

In order to fulfil the delivery of the Seller’s products under the best conditions, a delivery appointment is agreed between the carrier and the Client, which it must keep. Failing this, the Client may be charged the cost of storing the products in the carrier’s warehouses by the Seller at a rate of €10 excluding tax. after the 6^th working day of storage by the carrier.

If the Client asks for the delivery date, which has been expressly accepted by the Seller, to be pushed back, the Client shall bear all the storage, handling and insurance costs for the Order with a deferred delivery date.

3.3 External circumstances affecting deliveries

The Parties agree that they may be released from their liability in the event of a convergence in their commercial relations of certain external circumstances that disrupt deliveries while not meeting the conditions of force majeure (e.g. blockages of industrial sites or storage warehouses or transport links, proven shortages of raw materials with a notice period, health crisis, climatic hazard of exceptional magnitude, etc.)

The Party experiencing such circumstances will inform the other Party within 5 working days to promptly find a solution with its contracting partner.

3.4 Delivery terms

Prior to placing an Order with the Seller, every Client must ensure that their delivery site is accessible according to the conditions described below.

Excluding any prior agreement between the Parties, unloading is done from the lorry at the address provided by the Client upon placement of the Order in a location that is accessible to a 38/44 tonne 15m-long articulated lorry on a reception site equipped with the logistical facilities needed to unload the products ordered.

Otherwise, the Client shall inform the Seller of the situation when issuing the first order.

In such a situation, the delivery is fulfilled with the written consent of the Client according to the delivery requirements and characteristics of the ordered products thanks to:

a so-called “carrier” lorry (9m-long) for an additional cost of €45 excluding tax charged to the Client by the Seller;
• a “38/44 tonne” type lorry equipped with a liftgate for an additional cost of €45 excluding tax charged to the Client by the Seller (as long as the shipment does not exceed 500 kg in weight and 2.30 m in length);
• a so-called “carrier” lorry (9m-long) equipped with a liftgate for an additional cost of €90 excluding tax charged to the Client by the Seller.

The haulage contractor will not perform any handling (e.g. delivery to a floor, etc.) or installation work.

The Client shall be responsible for recovering, storing and depositing the products at the address specified when the Order is placed. The carrier shall be the only person qualified to decide on the most favourable access for unloading the products. The parties agree that the delivery will be made on the boundary of the property in an easily accessible location where there is no risk for an HGV.

In the event that it is not physically possible to unload the goods because of the actual configuration of the delivery access, the carrier reserves the right to cancel the delivery. In this case, delivery costs and all incidental costs (storage, return delivery costs) shall be borne by the Client.

ARTICLE 4 – CLAIMS PROCEDURE – CONDITIONS FOR RETURNING PRODUCTS

4.1 Procedure for making a claim upon receipt of the Order by the Client

The Client must perform an inspection upon reception in order to check that there are no problems with the quality of the product, and raise any reservations and objections deemed necessary (quantity of products/pallets actually received; breakage, defect, losses observed, etc.) by specifying the relevant details on the appropriate document provided for this purpose by the carrier (consignment note) as well as the references of the product concerned, its quantity and the reasons for the reservations with any the relevant details. The inclusion of the phrase, “subject to unpacking” shall have no value, and shall not be treated as a characterised reservation.

Given that the consignment note has several sections, one for each of the Parties concerned by the transport service (the carrier, the Seller and the Client), the parties agree that in the event of the carrier’s liability being called into question, only the version of the section kept by the carrier shall be deemed binding in a dispute, whether amicable or judicial.

If the Client considers that the product(s) concerned by the Order is (are) defective, it (or they) must not be installed.

Following its inspection, the Client has a period of three (3) days following receipt of the products to make a claim on the apparent defects or non-compliances of the product delivered in relation to the product ordered or the dispatch note, by sending the Seller a notification along with the necessary photos to identify the defect being invoked by:

− recorded letter with acknowledgement of receipt; or by;

− e-mail to the Seller’s disputes department at the following address: contact@grad-system.com

The period stipulated above concerns all visible defects and non-compliances of the product not caused by the transportation of the products.

The claim sent by the Client must be accompanied by a colour photo of the product concerned and a photo of its bar code. The Seller will not accept any return without first communicating its written consent to the Client.

At the end of the three (3) day period, the products will be deemed in compliance with the Order.

The Seller reserves the right to no longer process and study any complaint made after the expiry of this three (3) day period.

Every return of goods must be approved in writing beforehand between the Seller and the Client in a return form drawn up by the Parties. Any goods returned without the prior written consent of the Seller will be made available to the Client that will be charged for the storage costs incurred. In such an event, no credit note will be established and no replacement will be made.

Following the acceptance of a claim by the Seller and its confirmation that certain products sold to the Client (e.g. decking boards, cladding boards, etc.) are still usable despite the slight deterioration to the Product and the defects deemed by the Seller to be in good condition of use, a settlement may be agreed between the Parties through a partial credit note calculated in proportion to the loss calculated by the Seller.

4.2 Warranty – Liability

• Warranty

The products marketed by the Seller under the “GRAD®” brand are covered by a commercial warranty offered by the Seller, whose conditions (scope, exclusions, products covered by the commercial warranty) are specified on the website, https://grad-system.com.

In the event of a claim under the commercial warranty offered by the Seller, the claimant will provide the Seller with all the supporting documents to show that it has maintained the products sold according to the technical recommendations of the Seller (e.g. a copy of the purchase invoice for the recommended maintenance products).

In accordance with article 6 of the Terms of Sale, any retailer Client of the products sold by the Seller, is required to inform its users of the technical recommendations published by the Seller or by its supplier partners provided that they have been duly communicated by the Seller.

These recommendations mainly include advice related to the laying/installation/maintenance of the products, e.g. the completion of two maintenance sessions per year on the decking part of “GRAD®” branded products.The commercial warranty offered by the Seller only concerns “GRAD ®” branded products sold and manufactured directly by the Seller and does not cover the labour (including removal or refitting costs) needed for their installation.

The Client shall inform the Supplier of any defect in the products by sending a notification along with the following documents within seven (7) days of discovering the alleged defect:

– a colour photo of the product concerned;
– a photo of its bar code;
– proof of purchase for the potential activation of the commercial warranty.

• Liability

As a manufacturer of GRAD® branded structural elements, the Seller is responsible for the manufacture of its products and assumes all the legal warranties and responsibilities incumbent upon it as part of its relationship with its Client in its capacity as direct manufacturer of the said products.

As a retailer of decking products manufactured by its supplier partners, the Seller is bound by the legal warranties and responsibilities incumbent upon it as a retailer of these products in its relationship with its Client, as a business working in the same specialist sector.

Every Client, given that it works in the same specialist sector as the Seller, certifies that it has the skills needed to detect the apparent defects of the goods purchased from the Seller and raise any non-compliance upon receipt within a period of 7 days.

Therefore, in the absence of a reservation raised upon receipt of the products, it cannot subsequently raise any apparent non-compliance or defect that it could not have justifiably missed in its professional capacity.

In the event of claims concerning the decking/cladding products sold by the Seller, it expressly limits its liability, subject to gross negligence, to the cost of replacing these products calculated according to the duration of use of the damaged products and the date of the appearance of the defects concerned by the claim, to the exclusion of any other compensation (including the costs related to the removal/refitting of the products).

• Disclaimer

Every Client agrees to use and associate the GRAD branded products with products that are compatible with the technology of the items sold by the Seller.

Under the “GRAD®” brand, the Seller markets a clip-on decking and cladding concept by selling various items needed to fit a decking or cladding solution, e.g. parts of its structure and its decking or cladding boards as well as plastic clips to secure the assembly over the long term.

Given the complementary nature of the GRAD® products, the Seller markets grooved boards using a method that makes the groove exclusively compatible (clipping of the clip to the groove) with the clips of its GRAD® brand, given the patented technology of the clip-on decking/cladding concept.

Any other mechanism for fixing (e.g. clips) or fastening the boards (decking and cladding) to its structure, that is not approved or expressly admitted by the Seller, cannot be used to install and secure a patio or a layer of cladding with its support system.

Failing this, the Seller cannot be held liable for incidents resulting from the use of products not approved or recognised by the Seller during the installation of GRAD products.

4.3 Conditions for returning products

Any return of goods must be agreed beforehand in writing between the Seller and the Client.

Any goods returned without the prior written consent of the Seller shall be held at the disposal of the Client, that will be charged for the costs of warehousing and storage. With a return of this kind, no credit note will be established and no replacement will be made.

If the Parties agree on the return of goods, a return form will be sent by the Seller to the Client specifying the conditions of the return.

From the notification of the Seller’s agreement, the Client shall have a period of 10 (ten) days to return the goods concerned by sending them back to the Seller under the conditions specified below.

The product concerned must be sent properly protected, in its original packaging, in perfect condition for resale (not damaged or soiled), along with any accessories, assembly instructions and documentation. The product must not show any sign that it has been used in any way.

Without the prior written consent of the Seller, the transport costs related to the return of the products shall be borne by the Client. Following any accepted return and after verification of the returned products, a credit note will be established for the benefit of the Client or the products will be replaced according to the Seller’s choice.

If the subject matter of the claim is justified and the Seller deems that the product is indeed non-compliant, the Seller’s warranty is limited to the refund or replacement of the defective goods on presentation of the proof of purchase (delivery note or invoice), excluding all other costs which will be borne by the Seller.

4.4 Stocks

The Seller will not take back any stock of products not sold by the Client, at its own expense.

ARTICLE 5 – PAYMENT TERMS

5.1 Principles and terms of payment

Unless otherwise stipulated, all of the Seller’s invoices are payable at the address of its registered office at ZI BOIS L’ABESSE – 68660 LIEPVRE.

Orders are paid either by bank transfer, bill of exchange, cheque or credit card.

In accordance with the provisions of Article L 441-9 of the French Commercial Code, the Seller is required to issue the invoice upon fulfilling the delivery of the products or providing the services within the meaning of Article 289-I-3 of the French Tax Code.

A draft or acceptance of payment does not amount to a novation or derogation from this clause. The Seller’s prices are exclusive of tax and are increased by taxes, including the VAT (value added tax) in force on the day of invoicing.

The terms of payment are 60 (sixty) days from the date of issue of the invoice.

Exceptionally, a maximum period of 45 (forty-five days), end-of-month from the date of issue of the invoice may be agreed between the Parties, provided that this period is expressly stipulated by Contract and that it does not constitute a manifest abuse with regard to the creditor.

Only payment on the agreed due date will have the character of a final settlement. Unless specifically stipulated otherwise, no discount is granted for cash payment.

5.2 Late or non-payment

In accordance with the provisions of Articles L. 441-10 et seq. of the French Commercial Code, any non-performance by the Client, in whole or in part, of its payment obligations or any delay, shall automatically result in a penalty interest at a rate of three times the legal interest rate in effect on the due date. This penalty is calculated on the after-tax total of the sums remaining due, and runs from the day following the due date for the payment, without the need to serve any prior formal notice.

In addition, the Client is also liable for the lump sum collection charge provided for in Articles L. 441-10 and D. 441-5 of the French Commercial Code, set at €40. This fixed fee is not limited to the amount of the other costs that may be incurred by the Seller for the purpose of collecting the payment of its invoices and any other losses that may be attributable to the Client.

In the event that the Client’s late payment would force the Seller to refer the collection of the sums due to its litigation department, the Client will be liable for damages equal to 20% of the amount of the sums due by way of a penalty clause, without prejudice to any interest on arrears, the aforementioned fixed fee of €40, legal costs and any damages.

The non-payment or partial payment of an invoice on its due date, whatever the cause, will automatically result in the forfeiture of the term of the invoices not yet due, making the payment of all outstanding amounts immediately due by the Client to the Seller whatever the due date.

Should the circumstances justify it, the Seller may be required to demand the advance payment of certain orders, the payment of a deposit or a bank guarantee, all of which shall not constitute a novation of these Terms of Sale.

5.3. Insolvency

In accordance with the provisions of Article L. 622-7 of the French Commercial Code, by express agreement, in the event of a decision against the Client regarding the protective measure, receivership or judicial liquidation of the Client, the outstanding total of the invoices that it could have issued for the services performed for the benefit of the Seller and that of any discounts due, will be compensated in the event of claims that are related with the sums that would remain due to the Seller, given that they have become immediately due.

In the event of the resale of a “GRAD®” branded product by a Client subject to collective proceedings, any action to establish ownership of such a product is transferred to its resale price or its subrogated insurance indemnity.

ARTICLE 6 – CLIENT OBLIGATIONS

The Client may be held liable for the preparation work performed by it, at its expense.

The Seller shall not be held liable in the event of the poor preparation of the support systems used to hold the “GRAD®” branded products, or in the event of masonry deemed not to comply with the applicable standards.

All the formalities related to the building permit or any declaration of work shall be borne by the Client that agrees to take personal responsibility for all local or departmental planning rules imposed by the specific requirements of the work performed and the products of the Seller.

The Client agrees to refer to and apply all the technical recommendations relating to the installation, maintenance and dismantling of “GRAD®” brand products provided by the Seller and accessible to everyone (users of “GRAD®” products and every Client) at the following url: https://grad-system.com

By placing an Order with the Seller, the Client agrees to refer to and apply all of the Seller’s technical recommendations relating to these products.

Every Client agrees to pass them on to any user and any subcontractor entrusted with the task of installing the Seller’s products.

Consequently, the Seller’s liability cannot be called into question in the event of the Client’s failure to comply with the technical recommendations provided by the Seller including those contained in the installation guide and the maintenance guide.

In the event of a dispute relating to compliance with these technical recommendations, the Client shall be responsible for demonstrating by any means that it has complied with them.

All of the Seller’s technical documentation may also be provided on request.

ARTICLE 7 – RESOLUTION

In the event of non-payment on a due date or a partial payment of the price or, more generally, in the event of non-compliance by the Client with any of the clauses of the Terms of Sale, which proves to be serious enough to constitute a breach of a material obligation or cause significant material consequences, any Contract may be automatically terminated eight (8) days after sending formal notice by registered letter with acknowledgement of receipt, without effect and without further formality.

The products will then be immediately returned by the Client to the Seller.

ARTICLE 8 – RETENTION OF TITLE

The parties expressly agree that the products sold remain the property of the Seller until full payment of the amounts invoiced in principal and related charges.

A draft, or banking or postal cheque or any title creating an obligation to pay shall not constitute payment under the meaning of this clause.

Payment can only be considered to have been made when the Seller has actually collected the total amount.

If the products, concerned by the retention of title, have been resold by the Client, the Seller’s claim will be automatically transferred to the debt for the price of the products sold by the Client. The Client hereby assigns all debts from the resale of unpaid products to the Seller under this retention of title clause.

In the event of a protective measure, receivership or judicial liquidation decision made against the Client, the products may be claimed, in accordance with the legal provisions in force. In the event of a claim for the goods, because of a partial or total non-payment, the products stored with the Seller are deemed to correspond to the unpaid debts and may be claimed under the conditions set by the French Commercial Code.

In accordance with Articles L. 624-9 and L. 624-16 of the French Commercial Code, notwithstanding any clause to the contrary, this retention of title clause is enforceable against the Client.

The Seller is already authorised by the Client, that accepts, to conduct a stock-take and/or sequestrate the unpaid products held by it.

Any previously paid deposit will not be refunded to the Seller by way of a penalty clause.

Notwithstanding this retention of title clause, all the risks relating to the products sold shall be borne by the Client when said products are accepted upon delivery. Consequently, the Client will be held solely responsible for all risks of deterioration, loss, or partial or total destruction, whatever the cause of the damage, even if it is a fortuitous event or force majeure.

Until full payment, the Client agrees not to confer a pledge or security on the products sold under retention of title, or to use them as collateral.

The Client agrees to inform any third party, including in the event of a seizure, of the fact that the products sold under the retention of title clause belong to the Seller, and to inform the Seller immediately of any seizure or similar operation.

ARTICLE 9 – INTELLECTUAL PROPERTY RIGHTS

The Seller is the holder or licensee of all intellectual and industrial property rights covering the products sold to the Client, as well as the logos and any distinctive signs under the “GRAD®” brand and/or any other brands used by the Seller.

All the elements published on the https://grad-system.com/ website belonging to the Seller including, but not limited to, images, mood photographs, photos, videos, brand identity guidelines, products, accessories, packaging, logos, brands, domain names, texts and typographies belong to the Seller or its grantors, and constitute works and intellectual property titles protected by the provisions of the French Intellectual Property Code. Any total or partial reproduction, any modification, any creation of works derived from these images and/or any use of these images, mood photographs, photos, videos, brand identity guidelines, sounds, logos, products, brands, domain names, texts and typography for any reason and on any medium whatsoever, without the express and prior consent of the Seller, is strictly prohibited.

No assignment or licensing of intellectual property rights is made hereunder. Any reproduction in whole or in part, or any modification or use of these elements protected by a private right for any reason whatsoever is strictly prohibited and will constitute a breach of copyright.

The products delivered by the Seller under the “GRAD®” brand may only be resold in their original presentation and under conditions consistent with their brand image as set out in the brand identity guidelines of the “GRAD®” brand.

The Client that becomes aware of an infringement of the trademarks or patents or designs and models held by the Seller must immediately inform the Seller thereof by any means.

ARTICLE 10 – NON-DISCLOSURE

In general, the Parties must agree to preserve the confidentiality of the terms of their commercial negotiation as well as all the information exchanged between the Parties during the performance of the Contract, including any information of a technical, commercial or financial nature, or any information or document identified as being confidential, or any other information relating to the know-how of the products marketed by the Seller. All of this information must in no way be disclosed to a third party without the express prior written consent of the Party concerned. The Parties shall be accountable for this commitment among their staff and subcontractors to ensure such confidentiality by taking the necessary measures to preserve the confidentiality of the confidential data referred to herein.

ARTICLE 11 – PERSONAL DATA

The personal data collected from Clients are processed electronically by the Seller. They are recorded in its Client file and are essential for the processing of its order. This information and personal data are also kept for security purposes in order to comply with legal and regulatory obligations. They will be kept for as long as necessary for the execution of orders and any applicable guarantees, under the responsibility of the Seller for no more than 10 years.

Access to personal data will be strictly limited to the Seller’s staff, that are authorised to process them because of their duties, and exclusively for the proper processing of an order and meeting the legal requirements for the conservation of commercial documents.

The information collected may possibly be communicated to third parties of the Seller in order to fulfil these processing purposes, without having to obtain the Client’s authorisation, which it accepts.

Apart from the aforementioned cases, the Seller is prohibited from giving third parties access to the data without the Client’s prior consent.

If the data are to be transferred outside the member states of the European Union zone, the Client will be informed and the necessary and applicable guarantees will be taken in order to ensure their security, in which case these will then be specified to it.

Every Client has a right of access, rectification, erasure and data portability for their data, as well as the right to object to their processing for legitimate reasons. The Client may exercise these rights by contacting the Seller’s data controller at the following email address:rgpd@burger.fr.

In the event of a complaint, the Client may submit a complaint to the Client’s personal data protection officer of the “CNIL” (French data protection authority).

Every Client may consult the privacy policy of the Seller, which is available at the following URL:

https://grad-system.com/en/legal-notice/

ARTICLE 12 – COMMERCIAL DISPUTES

Any commercial dispute made by a Client related to a subject that is specific to the commercial relationship with the Seller (invoices, commercial cooperation contracts, separate service contracts, miscellaneous receivables, etc.) must be made no later than one (1) year after the invoice has been issued by the Seller.

In any case:

any invoice that is not expressly contested by the Client within one (1) year following its issue date will be deemed accepted by the latter; and,

the undisputed part of the disputed invoice, paid within the period provided for in the Contract, will be deemed to have been accepted by the Client.

In general, payments due and/or made under the Contract remain due/non-refundable to the Seller, unless the Contract stipulates otherwise, and payments by compensation cannot be made.

By express agreement, the rules, notices and/or internal procedures for processing the Client’s orders and invoices are not binding upon the Seller.

Once the limitation period has lapsed, any claim will be time-barred and de facto inadmissible.

ARTICLE 13 – FORCE MAJEURE

In general, the Parties cannot be held liable if the non-performance or the delay in the performance of any of their obligations, as described herein, results from a case of force majeure, within the meaning of article 1218 of the French Civil Code or an event beyond the control of the Parties, which could not have been reasonably foreseen when the Contract was concluded and whose effects cannot be avoided by appropriate measures, thereby preventing the performance of its obligation by the debtor.

By express agreement, a force majeure event shall include a virus qualified as a pandemic or an epidemic as recognised by the national authorities of one of the Parties leading to a reduction in business as a result of the restrictions imposed by the authorities or the health situation (protection of customers and/or employees), a strike, fire, flood, administrative obstacle, manufacturing or tooling accident, total or partial shortage of energy, transport or raw materials, change in import or exchange conditions, loss of power and, in general, any event beyond the control of the Seller that occurs after the sale has been concluded and prevents the performance of the Contract or the Order in whole or in part under normal conditions, and any other event recognised as a the event of force majeure as defined by the case law of the French courts.

The Party that observes the event must immediately inform the other Party of its incapacity to perform its service and provide evidence to the other Party as soon as the case of force majeure occurs. The suspension of obligations can in no case give rise to the liability for the non-performance of the obligation in question, or lead to the payment of damages or late payment penalties.

The performance of the obligation is suspended for the duration of the case of force majeure if it is temporary and does not exceed a period of 30 days. Consequently, as soon as the cause of the suspension of their reciprocal obligations disappears, the Parties will make every effort to resume the normal performance of their contractual obligations as quickly as possible. To this end, the defaulting Party will notify the other Party of the resumption of its obligation by registered letter with acknowledgement of receipt or any extrajudicial act. If the impediment is considered to be permanent, these terms will be unconditionally resolved according to the terms set out in the “Resolution” article for cases of force majeure.

During this suspension, the Parties agree that the costs arising from the situation will be borne by the defaulting Party.

Notwithstanding the “Resolution” clause for a breach by a party of its obligations set out below, the non-defaulting Party may, in the event of sufficiently serious non-performance of any of the obligations incumbent on the other Party, notify the defaulting Party by registered letter with acknowledgement of receipt of the faulty resolution hereof, after serving formal notice to remedy the situation has remained unsuccessful, pursuant to the provisions of article 1224 of the French Civil Code.

ARTICLE 14 – LACK OF FORESIGHT

When a Party can prove, pursuant to the provisions of article 1195 of the French Civil Code,

• that the performance of its contractual obligations has become excessively onerous due to an event beyond its control which it could not reasonably have expected to be taken into consideration when the Contract was concluded,

that it could not reasonably avoid or overcome, that Party may request a

renegotiation of the Contract.

In this case, the Parties agree to organise a preliminary and compulsory attempt at conciliation the day after notification by the Party concerned by the occurrence of the event making the performance of its contractual obligations excessively onerous within the meaning of the aforementioned article.

This conciliation process suspends the limitation period but not the performance of the Contract to which the Parties remain bound throughout the duration of the conciliation. Any referral to the judge in violation of this conciliation clause constitutes an end of inadmissibility rendering the action inadmissible.

If the renegotiation is successful, the Parties will immediately draw up an amendment to the Contract formally recognising the result of this renegotiation.

Should the renegotiation fail, the Parties may, in accordance with the provisions of article 1195 of the French Civil Code, request by mutual agreement from the judge, the resolution under the conditions provided for in article 7, or the adaptation of the Contract. In the absence of an agreement of the Parties to refer the matter to the court by mutual agreement within two (2) days from the observation of this disagreement, the first Party to take action may refer the matter to the court requesting a review or termination of the Contract.

In any case, if the change in unforeseeable circumstances when the Contract was concluded should become permanent or continue beyond fifteen (15) days and if the matter has not already been referred to the court by either Party, the Contract will be unconditionally terminated according to the terms set out in article 7, in which case the notification will be considered to have been made by the Party concerned.

ARTICLE 15 – MISCELLANEOUS

15.1 Independence of the Parties

The relations established between the Parties by the Terms of Sale are those of independent contractors and shall not therefore be construed to form a de facto company.

15.2 Insurance

Each Party represents that it is the holder of a professional civil liability insurance policy with an insurance company that covers all the liabilities it incurs in the performance of the Contract, and agrees to maintain this insurance policy in force throughout the term of the Contract.

15.3 Language

This Contract is drafted in French and may be translated into other languages. In case of a contradiction between the French version and another language, only the French version will prevail.

15.4 Advertising and commercial references

The Client expressly authorises the Seller to take photographs of the delivered works and agrees to their use for advertising and commercial purposes on every type of media.

The Seller may use the Client’s name and logo as a commercial reference to promote its products on any medium, including its website and/or that of its Affiliates. In this context, the Seller will respect the rules governing the use of the Client’s brands communicated beforehand, if necessary.

15.5 Tolerance and partial invalidity

The lateness or failure of either Party to invoke a breach by the other Party shall not be construed as thereafter waiving the right to invoke the breach in question.

If one or more of the stipulations of the Contract are declared null and void, or inapplicable, pursuant to a law, regulation or following a final decision of a court of competent jurisdiction, the Parties will attempt to amend or replace the stipulation(s) in question with terms that best reflect the initial purpose of the Parties, provided that these are valid and applicable. The other stipulations shall we deemed to retain full force and scope, unless the very purpose of the Contract disappears as a result.

15.6 Election of domicile

For the performance of the Contract as well as its consequences, the Parties respectively elect domicile at their registered offices indicated in the Order form(s). Any change to the registered office or address of one of the Parties will only be enforceable against the other Party eight (8) calendar days after having been duly notified to it.

15.7 Extended Producer Responsibility

The Seller is a member of Eco-mobilier and has its own registration number to give a second life to the furniture through the work done by entities in the social and solidarity economy.

15.8 Declaration number with the “ADEME” (French environment and energy management agency)

As a marketer, the Seller has completed all the formalities required by article R543-254 of the French Environmental Code with the “ADEME” (French environment and energy management agency).

As such, the Seller has the unique identification no. FR234021_04JOQT that is specific to the “PMCB” (building construction products and materials) sector.

15.9 Eco-tax

The Clients and successive resellers of products eligible for the payment of an eco-tax are requested to add the amount of the eco-tax paid by the marketer of the product at the bottom of their sales invoices and to inform successive buyers that, thanks to this eco-tax, which has already been paid by the marketer, the product can be collected and processed for free at the end of its life.

The operators who integrate, fit or install the products concerned within a construction structure are requested to include the following statement in their invoice: “The price of the service and materials includes the mandatory eco-tax according to article L 541-10-1 4° of the French Environmental Code, paid by the company responsible for placing the products and materials on the market. This eco­­-tax is used to fund the sorting, reuse or recycling system in accordance with the provisions of articles R543-288 et seq. of the French environment code.

ARTICLE 16 – APPLICABLE LAW AND FORUM SELECTION

The Parties agree that any dispute relating to the interpretation, application, validity and execution of the Terms of Sale is subject to French law, even if the products are sold to a Client established outside the territory of France.

In the event of a dispute over the validity, interpretation, execution or termination of these Terms of Sale and the Contract in general, the Parties agree to use their best efforts to try to settle their dispute amicably for a period of fifteen (15) days.

AT THE END OF THESE FIFTEEN (15) DAYS, IN CASE OF THE FAILURE TO AMICABLY SETTLE THE DISPUTE, IT WILL BE REFERRED TO THE COURTS WITHIN THE JURISDICTION OF THE COURT OF APPEAL OF COLMAR, REGARDLESS OF THE PLACE OF PERFORMANCE OR THE RESIDENCE OF THE DEFENDANT, EVEN IN THE EVENT OF A CLAIM FOR CONTRIBUTION FROM A THIRD-PARTY, MULTIPLE DEFENDANTS, AN EMERGENCY APPEAL TO A JUDGE OR PETITION.

ARTICLE 17 – ENTRY INTO FORCE

These Terms of Sale take effect from 1 January 2023. They cancel and supersede those established prior to the date hereof.