TERMS AND CONDITIONS OF RENTAL AND/OR SALE OF SKYNIGHT SA PRODUCTS AND SERVICES
Effective from 18-10-2024
DEFINITIONS
CUSTOMER ORDER FORM: request from the CLIENT to the SERVICE SUPPLIER for the rental and/or sale of products and services, subject to a description and pricing on a case-by-case basis.
GENERAL CONDITIONS: general conditions for the rental and/or sale of products and services from SKYNIGHT SA
CUSTOMER: Legal entity that has entered into a CONTRACT with the PROVIDER in order to benefit from the PRODUCTS and/or SERVICES.
CONTRACT: Includes (1) the ORDER accepted by the SERVICE SUPPLIER, (2) the GENERAL TERMS AND CONDITIONS (3) any special terms and conditions accepted by the SERVICE SUPPLIER and contained in the quotation or in an explicit and unequivocal e-mail from the SERVICE SUPPLIER, the subject of which shall state "special terms and conditions".
QUOTATION: offer to rent and/or sell products and services from the SERVICE SUPPLIER to the CLIENT, described and priced on a case-by-case basis.
EVENT: any event or operation.
PARTIE(S): refers to the SERVICE SUPPLIER and/or the CLIENT.
PRIVACY POLICY: refers to the document detailing the way in which the SERVICE SUPPLIER collects, uses, protects and stores the CLIENT's personal data within the scope of its activities. It also specifies the CLIENT's rights with regard to its personal data. The Privacy Policy is available at all times on the SERVICE SUPPLIER's website or can be obtained from the SERVICE SUPPLIER on request.
SERVICE SUPPLIER: Legal entity providing SERVICES and/or PRODUCTS to the CLIENT.
PRODUCTS: refers to products rented and/or purchased by the CLIENT from the PROVIDER.
WEBSITE: SERVICE SUPPLIER's website.
PREAMBLE
The products and services are offered for sale or rental by Skynight SA. The sale and rental of these products and services are governed by the CONTRACT and the GENERAL CONDITIONS applicable are those in force on the date of the ORDER placed by the CUSTOMER.
The CLIENT and the SERVICE SUPPLIER have come together to define and agree the terms and conditions of the order placed by the CLIENT with the SERVICE SUPPLIER. In this respect, the CLIENT acknowledges that it was invited by the SERVICE SUPPLIER to formulate its observations/comments on the draft CONTRACT when the QUOTATION was sent.
As a result of their discussions, the CLIENT and the SERVICE SUPPLIER have agreed to collaborate under the conditions defined hereinafter. As such, this CONTRACT replaces any other document previously exchanged between the PARTIES. The GENERAL CONDITIONS prevail over any other general or special conditions issued by the CLIENT, unless expressly accepted by e-mail by the SERVICE SUPPLIER.
Illustrations and/or photographs appearing on sales documentation (all media combined) have no contractual value.
In this context, the CLIENT on the one hand and the SERVICE SUPPLIER on the other declare that they have received all the information necessary for their commitments and that they have fully understood and accepted their commitments under the terms of this AGREEMENT.
In this regard, the CLIENT acknowledges that its essential obligations under the CONTRACT are as follows:
transmit all the information and/or elements and/or accomplish all the steps necessary for the execution of the services and/or the delivery of the PRODUCTS and/or SERVICES by the PROVIDER, including the proof of insurance of the PRODUCTS.
proceed to the full payment of the price of the SERVICES and/or PRODUCTS,
For its part, the SERVICE SUPPLIER acknowledges that its essential obligation is to deliver the SERVICES and/or PRODUCTS within the agreed deadlines.
The PARTIES acknowledge that they have exchanged their e-mail addresses and telephone numbers.
ARTICLE 1 - Ordering
ORDER FORM
All orders for SERVICES and/or PRODUCTS placed by the CLIENT with the SERVICE SUPPLIER must be made in writing and within a period defined in the quotation according to the nature of the rental, service or sale, either by signing an order form or by accepting a QUOTATION (hereinafter the "ORDER"). The same shall apply to any request to modify an ORDER and/or additional order made within the aforementioned time limits.
All CLIENT ORDERS are firm and final, subject to the provisions of article 1.2 below.
With the exception of ORDERS placed on site (where the EVENT is taking place) and unless otherwise specifically agreed by the SERVICE SUPPLIER, the SERVICE SUPPLIER will not be obliged to carry out the order if it has not been sent within the set time limit. The same shall apply when the SERVICE SUPPLIER's stocks are no longer available or when the minimum amounts required by the pricing conditions are not reached.
In the event of force majeure and/or due to imperatives relating to stock availability, ORDER deadlines and, more generally, the conditions under which the SERVICE SUPPLIER carries out its activity, the SERVICE SUPPLIER may supply, instead of the PRODUCTS ordered, any equivalent PRODUCT capable of ensuring identical use, unless the CLIENT expressly refuses.
CANCELLATION OF ORDER
Any cancellation of an ORDER for any reason whatsoever, except in the case of force majeure, made more than 30 days before the start of the rental or the start of the service, will result in the invoicing of the costs already incurred by the SERVICE SUPPLIER.
Any cancellation of an ORDER for any reason whatsoever, except in cases of force majeure, made within 15 days before the start of the rental or the start of the service, will result in the full price of the ORDER becoming payable.
In any event, whatever the date of cancellation of the ORDER, the deposits already paid and the sums due on this date will remain the property of the SERVICE SUPPLIER.
In the case of PRODUCT sales, all CLIENT ORDERS are firm and final.
ARTICLE 2 - PRICES
2.1 PRICE
The price of rentals and/or the sale of products and services is fixed in Swiss francs, exclusive of tax, on QUOTATION.
2.2. PRICE SURCHARGES
For all PRODUCTS or SERVICES combined, the CLIENT accepts that the price may be increased :
- Costs related to a reduction in contractual assembly/disassembly times (previously accepted by the SERVICE SUPPLIER);
- Additional labor costs if assembly, disassembly, delivery/collection is carried out either after the start of the event or operation, or on a Sunday or public holiday and/or outside working hours;
- Additional costs incurred by the SERVICE SUPPLIER if, for the PRODUCTS and/or SERVICES concerned, the installation site is not accessible with the vehicle initially planned and/or with a forklift truck and/or if the information transmitted to it is erroneous or incomplete and/or if the assembly/disassembly area is occupied by third parties and/or equipment;
- And/or transport and labour costs if the distance between the loading site and the delivery site (installation / assembly / service) is greater than the applicable fixed price or if the SERVICE SUPPLIER is not present as such at the EVENTS;
- Costs related to changes in applicable regulations or exceptional measures taken by the competent authorities (police, fire department, etc.) after the order has been placed;
- Costs related to the assumption of its obligations by the SERVICE SUPPLIER as referred to in Article 11.1 below.
In addition, any ORDER placed outside the deadlines stipulated in article 1 and before the 1st day of assembly/installation/delivery/service may be subject to a surcharge of 15%, 20% or 30% of the price excluding tax (HT) in force on the day of the ORDER, depending on the type of PRODUCT concerned and the effective date of the ORDER. Finally, any ORDER placed from the first day of assembly will be subject to a surcharge of 30% of the current price excluding VAT.
ARTICLE 3 - PAYMENT
3.1 Terms of payment
Payment terms are specified in the quotation. Unless otherwise indicated, invoices are payable by the CLIENT within 30 days of the invoice date.
Invoices are paid according to the terms specified in the quotation, generally by bank transfer and exceptionally by cheque.
No compensation may be made without the prior written agreement of the SERVICE SUPPLIER.
3.2 Late payment
It is expressly agreed between the Parties that the CLIENT owing a payment obligation to the SERVICE SUPPLIER will be validly placed in default by the mere payability of the obligation, in accordance with the provisions of Article 102 of the Swiss Code of Obligations.
In accordance with article 104 of the Swiss Code of Obligations, any delay in the payment of sums due on the due date, for whatever reason, by the CLIENT, regardless of the cause, will render due (after formal notice by e-mail) the payment of interest on arrears of 5% per annum, calculated on the amount of the unpaid invoice, inclusive of tax, from the day following the due date. Unless otherwise expressly stipulated in writing in the QUOTATION, fixing a different rate of default interest, the legal rate of 5% applies.
In the event of late payment, the CLIENT will be liable, in addition to interest on arrears, for all collection costs incurred by the SERVICE SUPPLIER, on presentation of supporting documents. These costs include, in particular, legal fees, procedural costs and collection costs.
ARTICLE 4 - DELIVERY - RETURN - COMPLAINTS
The following report will be drawn up:
- The SERVICE SUPPLIER's delivery note at the time the rented PRODUCTS are made available.
On this occasion, the parties may express reservations about the aforementioned observations. In the absence of any reservations, the delivery - reception / return - restitution will be perfect.
However, the CLIENT may be notified in writing within 24 hours of delivery of any malfunction of the PRODUCTS (requiring a start-up) when transport is carried out by the SERVICE SUPPLIER.
Upon completion of the trade-in, any malfunctions of these PRODUCTS revealed during tests initiated by the SERVICE SUPPLIER within 48 hours (working days) will be borne by the CLIENT, with the resulting costs payable upon receipt of the invoice.
Finally, from the time of delivery, the CLIENT may not invoke force majeure or an act of God against the SERVICE SUPPLIER, the SERVICE SUPPLIER being deemed to have perfectly fulfilled its contractual obligations.
ARTICLE 5 - SITE & LOCATION OF PRODUCT INSTALLATION
The CLIENT undertakes to guarantee the SERVICE SUPPLIER that the site(s) / location(s) on which the rented / sold PRODUCTS are to be installed comply with :
- to the SERVICE SUPPLIER's operating conditions, and in particular shall be free of access and of any presence of third parties to the SERVICE SUPPLIER and/or equipment belonging to third parties during set-up and dismantling periods,
- the legal and regulatory requirements (safety, lighting, etc.) in force for the planned operation,
The CLIENT guarantees the service provider that the owner or operator of the site where the EVENT takes place has expressly agreed to the transport and assembly of the PRODUCTS ordered.
The CUSTOMER also undertakes to provide the SERVICE SUPPLIER, no later than 30 working days before the 1st day of installation, with details of site constraints (underground/overhead network, ground resistance, etc.) and any precautions, particularities and/or prohibitions on installation or other matters relating thereto.
The CLIENT shall be responsible to the owner or operator of the site where the EVENT takes place for repairing any damage caused to the site as a result of the PRODUCTS installed by the SERVICE SUPPLIER in accordance with good practice and :
(1) guarantee the SERVICE SUPPLIER against any claim
(2) will bear the cost of restoration.
Any change of location will result in the cancellation of the ORDER.
ARTICLE 6 - COMPLIANCE WITH STANDARDS
The CLIENT must ensure that its event complies with the legislative and regulatory provisions in force. The CLIENT must ensure compliance with standards relating to personal safety and public tranquility. THE CUSTOMER shall ensure compliance with regulations relating to venues broadcasting amplified sound.
He will be personally responsible for obtaining all necessary authorizations:
(1) necessary for the holding of this event, and more particularly, without this list being exhaustive, for the sale of alcoholic beverages, for the late opening of the event, for the free disposal of intellectual property rights, signs, trademarks, SACEM etc., used within the framework of the event.
(2) relating to the installation and operation of the equipment ordered.
The CLIENT undertakes to indemnify and hold harmless the SERVICE SUPPLIER against any and all consequences that may arise from failure to comply with the above provisions. In particular, in the event of cancellation or interruption of the event for lack of proper authorization, the customer will remain liable for full payment of the service, whatever the reason alleged by the competent authorities.
The CLIENT shall remain solely responsible, both criminally and civilly, for any consequences of failure to obtain authorization, without being able to hold the SERVICE SUPPLIER liable for any reason whatsoever.
The SERVICE SUPPLIER undertakes to comply with all the legal and regulatory obligations incumbent upon it with regard to the fight against undeclared work.
ARTICLE 7 - LIABILITY
From the time the PRODUCTS are made available, delivered or received, the CLIENT shall be the sole custodian of the rented PRODUCTS and shall be solely responsible for any theft, loss or damage suffered or caused by these PRODUCTS, until they are returned.
During this period the SERVICE SUPPLIER declines all responsibility for any documents, objects, samples, materials or other items present in/under/on the PRODUCTS rented by the CLIENT.
In the event that the SERVICE SUPPLIER is held liable in connection with the ORDER, for any reason and for any cause whatsoever, for any damages whatsoever, including direct and indirect damages (including consequential damages), such liability shall be strictly limited to a sum not exceeding the price or the portion of the price of the ORDER judicially recognized as being unfulfilled or in default, without this sum being greater than the limit(s) of coverage of the SERVICE SUPPLIER's insurance policy, which limit(s) the SERVICE SUPPLIER shall provide upon request.
In any event, the Service Provider excludes all liability for losses, including theft, loss, destruction, etc., concerning personal effects and objects.
ARTICLE 8 - INSURANCE
The CLIENT declares that it is insured for professional and operational civil liability, which shall cover any liability incurred by persons authorized by the CLIENT to use the rented PRODUCTS, when the PRODUCTS are transported, delivered, installed or removed by the SERVICE SUPPLIER.
For these products, the CLIENT must take out "all-risk damage" insurance.
The CLIENT, when it is an EVENT organizer, must take out cancellation insurance for the event for a value at least equal to the total amount of the order including VAT, and designate the SERVICE SUPPLIER as the insured beneficiary. It shall provide the SERVICE SUPPLIER with a copy of the policy on first request. The SERVICE SUPPLIER will provide a document giving the value of the equipment made available.
ARTICLE 9 - SECURITY DEPOSITS
Whatever the type of event, a deposit by cheque or by another means indicated on the quotation may be required to validate the order. Failing this, the order will not be taken into consideration.
This deposit will be returned to the CLIENT, after full payment of the sums due, and return of the PRODUCTS in good condition on the scheduled date. Should the CLIENT fail to return the PRODUCTS within 48 hours of the initial deadline, or make it possible for the SERVICE SUPPLIER to take them back, the PRODUCTS will be considered definitively lost and the security deposit will be cashed, without prejudice to the provisions of article 11 below and any other damages that may be claimed by the SERVICE SUPPLIER.
ARTICLE 10 - USE OF PRODUCTS
The CLIENT undertakes :
- To use the PRODUCTS in accordance with their usual purpose, not to do anything or allow anything to be done that could lead to their deterioration or disappearance, to provide them with the necessary normal maintenance, to maintain them and return them in a good state of use and cleanliness, to comply with the SERVICE SUPPLIER's particular recommendations, specific advice for use, and appropriate warnings of which it acknowledges having been made aware in particular in the CONTRACT, the technical data sheets, and/or the documents given to it upon delivery;
- Not to make any modifications or repairs, however minor;
- To be used in covered areas, protected from water infiltration, with the exception of PRODUCTS designed for outdoor use on stabilized ground;
- To give free access to the installed PRODUCTS to any representative of the SERVICE SUPPLIER or person mandated by the latter and to take any useful measure to facilitate their mission;
- To return them to the SERVICE SUPPLIER free of all objects.
ARTICLE 11 - FAILURE/DELAY IN RETURNING PRODUCTS
Unless otherwise agreed, regardless of the length of the rental period, failure to return
The CLIENT's failure to return the rented PRODUCTS within the allotted time will automatically entail the payment by the CLIENT, as a penalty clause, of an immobilization indemnity corresponding to the cost of the rental per day of delay, without prejudice to any damages that may result. In addition, and without prior formal notice, the SERVICE SUPPLIER may repossess the equipment by means of a provisional order issued by the competent courts, to be chosen by the SERVICE SUPPLIER in the event of plurality of competent courts.
ARTICLE 12 - OWNERSHIP OF PRODUCTS
The PRODUCTS rented by the SERVICE SUPPLIER remain its entire property. The PRODUCTS sold by the SERVICE SUPPLIER remain its entire property until full payment of the price, in principal and interest. If the CLIENT wishes the PRODUCTS purchased to be transformed, resold or incorporated into another good, it must first pay the balance of the price to the SERVICE SUPPLIER. However, the transfer of risks takes place when the PRODUCTS are made available to the CLIENT in our workshops or when the SERVICE SUPPLIER hands them over to the carrier. Consequently, it is the CLIENT's (purchaser's) responsibility to check the condition of the PRODUCTS in the presence of the carrier and, in the event of a claim, to take recourse against the carrier. The CLIENT agrees not to transfer, rent, lend, move, pledge or allow any of its creditors to seize the PRODUCTS held until they are returned to the SERVICE SUPPLIER or, in the case of a purchase, until it has paid the SERVICE SUPPLIER in full. The CLIENT undertakes to inform the SERVICE SUPPLIER immediately of any incident likely to affect the ownership of said PRODUCTS.
ARTICLE 13 - RESTORATION COSTS
If it is impossible to restore or return the rented PRODUCTS, they will be invoiced at their replacement value.
In all cases, the CLIENT will also be invoiced a fixed price for restoration, covering all cleaning and routine maintenance operations required for the reuse of the PRODUCTS by the SERVICE SUPPLIER. This fixed price may be supplemented in the event of additional costs related to repairs and/or replacements required for the reuse of the PRODUCTS.
Participation in restoration costs does not preclude the application of article 9.
ARTICLE 14 - PROVIDER'S INTELLECTUAL PROPERTY RIGHTS
The CLIENT is not authorized to use the trademarks and/or any other distinctive signs of the
PROVIDER for any reason whatsoever except with its prior written consent. Furthermore, the rental or sale of PRODUCTS, including drawings relating to PRODUCTS protected or not by intellectual property rights (in particular patents, designs and models, or copyrights), does not entail any right of reproduction for the benefit of the CLIENT.
ARTICLE 15 - NON-PERFORMANCE EXCEPTION
In accordance with the provisions of Articles 82 and 83 of the Swiss Code of Obligations, the performance of the CONTRACT may be suspended by either PARTY in the event of non-performance by the other PARTY of any of its essential obligations, following the sending of an e-mail during the period mentioned in the subject and/or body of the e-mail.
All costs resulting from the resumption of the performance of the CONTRACT by either of the PARTIES will be invoiced to the defaulting PARTY on the basis of supporting documents.
At the end of this period, if no change has been made allowing performance of the CONTRACT to resume, it will be automatically terminated to the detriment of the defaulting PARTY. This termination will be notified to the defaulting PARTY by e-mail, and the effects of the termination will be those provided for in article 17 below.
ARTICLE 16 - ENFORCEMENT
In view of the specific nature of the PRODUCTS and SERVICES and the indispensable know-how required to perform the SERVICE SUPPLIER's obligations under the CONTRACT, the PARTIES expressly agree to exclude the application of the provisions of Articles 97 and 98 of the Swiss Code of Obligations, with regard to the forced performance of obligations in kind.
ARTICLE 17 - TERMINATION OF THE CONTRACT
It is expressly agreed between the PARTIES that breaches of the essential obligations of each of the PARTIES as referred to in the preamble above may result in termination of the CONTRACT after formal notice has been given to the defaulting PARTY by e-mail. Termination will be notified to the defaulting PARTY by a new e-mail and will take effect after the PRODUCTS have been dismantled and completely removed from the site by the SERVICE SUPPLIER. The CLIENT undertakes to allow access to the site for the dismantling of the PRODUCTS and their removal by the SERVICE SUPPLIER in accordance with a schedule agreed between the PARTIES.
In the event that the cancellation is at the CUSTOMER's expense: the exercise of this right of cancellation will entail payment by the CUSTOMER, upon receipt of the invoice, of the whole of the ORDER.
If termination is at the SERVICE SUPPLIER's expense: the CLIENT will pay the full amount of the invoice.
of the SERVICES performed and/or the PRODUCTS delivered in whole or in part and of the costs until the beginning of the dismantling operations by the SERVICE SUPPLIER.
ARTICLE 18 - PRICE REDUCTION
Any request for a price reduction made by the CLIENT shall be subject to the SERVICE SUPPLIER's prior and express acceptance. No reduction will be applied without this prior agreement.
ARTICLE 19 - FORCE MAJEURE
In application of the general principles of Swiss law, and in particular article 119 of the Swiss Code of Obligations, the obligations of the PARTIES will be suspended in the event of the occurrence of an event of force majeure. It is expressly agreed that any event qualified as force majeure by law or jurisprudence shall constitute force majeure, including but not limited to the following events: war, riot, fire, general strike, natural disaster, shortage of raw materials, transport strike, administrative closure of the SITE by a competent authority with the necessary police powers unrelated to the COVID 19 epidemic, even if the legal and jurisprudential conditions are not met.
The PARTY affected by the force majeure event will notify the other PARTY by e-mail immediately upon the occurrence of the said event, and performance of its obligations will then be suspended.
(1) If the impediment is temporary, performance of the obligation will be suspended unless the resulting delay justifies termination of the CONTRACT. In the event of continuation of the CONTRACT, the CLIENT shall pay the SERVICE SUPPLIER all costs incurred during the period of suspension of the CONTRACT, plus any other costs that may be generated when the CONTRACT is resumed, with appropriate supporting documents.
(2) If the impediment is definitive, the CONTRACT will be terminated ipso jure and the PARTIES will be released from their obligations and the termination will entail payment upon receipt of the invoice of all the SERVICES performed and/or PRODUCTS delivered in whole or in part and the costs incurred by the SERVICE SUPPLIER in the performance of the CONTRACT up to the date of termination of the CONTRACT.
ARTICLE 20 - UNFORESEEN CIRCUMSTANCES
In view of the duration of the performance of the ORDER, the CLIENT and the SERVICE SUPPLIER expressly agree to exclude the application of the theory of revision for fundamental change of circumstances as recognized by Swiss jurisprudence (clausula rebus sic stantibus).
ARTICLE 21 - PRIVACY & PERSONAL DATA
The PARTIES undertake to respect the confidentiality of all information presented or obtained under the CONTRACT. This obligation shall continue even after termination of the contract.
In accordance with the provisions of the Federal Law on Data Protection (LPD) and its ordinance, as well as the General Data Protection Regulation (RGPD) when applicable, it is reminded that the personal data requested from the CLIENT is necessary for the processing of his ORDER. This data may be communicated to any of the SERVICE SUPPLIER's partners for the performance of the contract.
In accordance with current Swiss and European regulations, the CUSTOMER has the right to access, rectify, delete, limit the processing of, port and object to information concerning him or her.
To exercise its rights, the CLIENT must send an e-mail to the SERVICE SUPPLIER specifying its surname, first name and the postal address to which it wishes to receive the reply, to the following address: rgpd@skynight.com
The processing of the CUSTOMER's personal data in connection with the ORDER is carried out in accordance with applicable Swiss legislation, in particular the Federal Data Protection Act (DPA), as well as the General Data Protection Regulation (GDPR) where applicable. Details of the collection, processing, use and protection of personal data are described in our PRIVACY POLICY, accessible at the following address:
ARTICLE 22 - SAFEGUARD CLAUSE
The nullity of a clause shall not entail the nullity of the entire CONTRACT unless it does not call into question the essential obligation of the PARTIES, the other stipulations retaining all their force and scope.
ARTICLE 23 - ADDRESS FOR SERVICE
For the execution of the CONTRACT, the CLIENT and the SERVICE SUPPLIER elect domicile at their respective registered offices.
ARTICLE 24 - APPLICABLE LAW - LANGUAGE OF THE CONTRACT
The law applicable to the present contract and its consequences is exclusively Swiss law, both as regards procedural and substantive rules, the PARTIES expressly waiving the application of the provisions of the VIENNA Convention of April 11, 1980 on Contracts for the International Sale of Goods.
The CONTRACT and the various contractual documents are written in French. Should they be translated into one or more languages, only the French text will prevail in the event of a dispute.
ARTICLE 25 - JURISDICTION
An amicable solution will be sought to any dispute arising from the interpretation or execution of the present contract.
It is expressly agreed that only the courts of the Canton of Geneva are competent to hear disputes relating to the interpretation and execution of this CONTRACT, with the CLIENT waiving any legal jurisdiction it may have. The signature of a bill of exchange or promissory bill does not constitute a waiver of the present clause.