Terms and conditions of sale

Preamble

These General Terms and Conditions of Sale (the “Terms”) govern, without restriction or reservation, the entire contractual relationship between:

• MEMORY PENCIL, publisher of the website www.memorypencil.com (hereinafter “Memory Pencil” or “the Seller”), whose full details are provided in the legal notice;
• any adult natural person with legal capacity, acting as a consumer, who places an order on the website (hereinafter “the Customer”).

These Terms are the only ones applicable and prevail over any other document. The Seller's failure to invoke any of their provisions at a given time shall not constitute a waiver of the right to invoke them later.

Article 1: Definitions

In these Terms, the following words have the following meaning:

• Product: a personalized coloring album created from the content supplied by the Customer.
• Content: photographs, first names, dedications, messages, occasions and any other data uploaded or entered by the Customer for the purpose of making the Product.
• Rendering: the illustration obtained through automated digital processing (including artificial intelligence) of the Content.

Article 2: Purpose and scope

Memory Pencil offers for sale personalized coloring albums (the “Products”), created from the photographs supplied by the Customer and transformed into coloring illustrations through an automated digital image-processing pipeline, then printed and bound on demand by a partner printer who produces as close as possible to the delivery address. For delivery to mainland France, printing takes place in France in the vast majority of cases, without this routing being guaranteed order by order.

The Product is, by nature, entirely made to order and manufactured to the Customer's specifications and choices. This characteristic has decisive consequences, in particular regarding the right of withdrawal (Article 10).

Article 3: Acceptance of the Terms

Any order implies full and unreserved acceptance of these Terms, to the exclusion of any other document. By validating and paying for the order, the Customer acknowledges having read the Terms in full, having understood their scope and accepting them on an informed basis. The Customer declares having full legal capacity to contract.

Article 4: Orders and formation of the contract

Orders are placed exclusively online at www.memorypencil.com. The Customer:

• selects an album format (6, 12 or 24 photos);
• uploads the photographs and enters the information that will serve as a basis for the Product;
• validates the order and proceeds with payment, which definitively forms the contract of sale.

An order confirmation is sent by email. The contract is validly formed only upon actual collection of the price. Memory Pencil reserves the right, at its sole discretion and without incurring any liability, to refuse, suspend or cancel any order: in the event of Content that does not comply with Article 5, technical difficulty in carrying it out, a prior dispute with the Customer, suspicion of fraud, a payment failure or anomaly, or for any other legitimate reason. If the Seller cancels an order that has already been paid for and not yet put into production for a reason not attributable to the Customer, the sums paid are refunded, to the exclusion of any other compensation.

The data recorded by Memory Pencil (order logs, electronic confirmation) constitutes proof of the transaction and its content, unless the Customer provides evidence to the contrary.

Article 5: Content supplied by the Customer

The Customer is solely responsible for the Content they transmit. By uploading it, the Customer expressly warrants that they:

• hold all rights (in particular copyright and related rights) in the photographs, or hold all the authorisations necessary for their use;
• have obtained the prior consent of any identifiable person appearing in the photographs in respect of image rights and, in the case of a minor, that of their legal representatives;
• warrant that the Content is not unlawful, infringing, defamatory, in breach of privacy, public order or morality, and that it is not violent, hateful or sexual in nature.

Memory Pencil reserves the right to refuse any clearly inappropriate Content, without having to give reasons and without such refusal giving rise to any compensation. The technical quality of the Rendering depends directly on the quality of the photographs supplied: a blurry, dark, low-resolution or poorly framed photograph cannot constitute a defect of the Product nor justify a request for refund or replacement.

The Customer indemnifies Memory Pencil and undertakes to hold it fully harmless against any claim, action, judgment, damage, cost or expense (including reasonable defence costs) arising from the Content they supplied or from the breach of the warranties in this article.

Article 6: Nature of the Product and characteristics of the Rendering

The Customer acknowledges and accepts that the Product is a work of artistic interpretation obtained through an automated process. The Rendering is a stylised reinterpretation of the original photograph and is not intended to be a faithful or exact reproduction of it. Differences in lines, likeness, framing, details or colors compared with the original photograph are inherent to the process and in no case constitute a lack of conformity.

As a printed product, slight variations in tone, brightness, positioning, trimming or finishing are inherent to printing and binding processes and remain within the usual tolerances of the industry. The colors displayed on screen are indicative and may differ from the printed result depending on the calibration of the Customer's devices. Such variations cannot be treated as a defect.

The essential characteristics of the Product (format, number of pages, paper, type of binding) are presented on the website prior to the order.

Article 7: Prices

Prices are displayed and charged in the currency shown before the order is confirmed. It depends on the delivery country or, when there is no delivery (digital version, gift card), on the buyer's country (for example euros for France, US dollars for the United States, Mexican pesos for Mexico). Any currency conversion fees charged by the Customer's bank are borne by the Customer. VAT not applicable, Article 293 B of the French General Tax Code (VAT exemption scheme for small businesses). Any shipping costs are indicated before final validation of the order. Memory Pencil reserves the right to amend its prices at any time, it being understood that the prices applicable are those in force at the time the order is recorded. In the event of a manifest pricing error (in particular a derisory or abnormally low price resulting from a technical or human error), Memory Pencil reserves the right to cancel the order and refund the sums paid, the Customer being unable to require performance at that erroneous price.

Article 8: Payment

The price is payable in full and in cash on the day of the order. Payment is made online by debit or credit card via the provider Stripe, which ensures transaction security (PCI-DSS standard, SSL/TLS encryption). Memory Pencil does not retain any banking data. No order is put into production before actual collection of the price. In the event of rejection, failure or fraud in payment, the Seller may suspend or cancel the order as of right.

Article 9: Delivery, lead times and transfer of risk

The Products are delivered to mainland France, the French overseas departments and territories, the European Union and the rest of Europe, North America, as well as many countries in Latin America, Asia, Africa, the Middle East and Oceania. The exhaustive list of served destinations is the one displayed at checkout: it alone prevails, the country selector of the delivery form only accepting destinations that are actually served.

The indicative shipping lead time is the one displayed on the site and at checkout: the order tracking space then shows how production is progressing, then the shipping date. This lead time runs from the order to the handover of the parcel to the carrier. It depends on the Product ordered and on the country of manufacture, and covers preparation, in-house rendering review and made-to-order manufacturing. As an indication, it is 5 to 7 business days, and 3 to 5 business days in the United States and Canada, slightly less for the 6-photo format.

Transit time is added to the shipping lead time and does not depend on Memory Pencil: it varies with the carrier, the destination country and, where applicable, customs formalities. Memory Pencil therefore does not guarantee any delivery date. Purely as an indication, transit usually takes a few business days in France, the European Union, the United States and Canada. For Switzerland and Norway, outside the European customs union, delivery generally takes place 7 to 12 business days after the order. For Mexico, Colombia, Uruguay, New Zealand, Singapore, Hong Kong, Malaysia, the Philippines, Saudi Arabia, Kenya and South Africa, where the Product is printed outside the country and then shipped by international mail, it generally takes place 15 to 25 business days after the order. Delivery is provided with tracking: the tracking number is emailed to the Customer as soon as the parcel ships.

These lead times are given purely as an indication and any overrun cannot give rise to any compensation, withholding or cancellation, subject to the mandatory provisions of articles L216-1 and L216-2 of the French Consumer Code.

When the Product is shipped from a country other than the destination country (in particular to Mexico, Switzerland, Norway, and destinations in Latin America, Asia, the Middle East, Africa and Oceania), the customs authorities of the destination country may charge import duties and taxes on receipt of the parcel. They are payable by the recipient. For some destinations, including Mexico, customs regulations require the recipient's tax identification number (RFC in Mexico), which the Customer provides when ordering.

The Customer is solely responsible for the accuracy of the delivery information they provide. Memory Pencil cannot be held liable for a delay or non-delivery resulting from an erroneous, incomplete or inaccurate address. Any reshipment made necessary by an incorrect address, by the repeated absence of the recipient or by a failure to collect the parcel may be charged to the Customer.

In accordance with article L216-4 of the French Consumer Code, the transfer of the risk of loss of or damage to the Product takes place when the Customer takes physical possession of the Product. The Customer is invited to check the condition of the parcel on delivery and to make any reservations with the carrier where applicable.

Article 10: Right of withdrawal, exclusion (personalized product)

In accordance with article L221-28 3° of the French Consumer Code, the right of withdrawal cannot be exercised for contracts for the supply of goods made to the consumer's specifications or clearly personalized.

Memory Pencil albums being entirely personalized based on the photographs and choices of the Customer, they expressly and unambiguously fall within this exclusion. The Customer acknowledges being fully informed of this before validating their order and expressly waives any right of withdrawal for Products thus manufactured. Consequently, no cancellation, modification or refund may be claimed once the order has been validated and paid for, subject to the legal guarantees referred to in Article 11 and the goodwill cancellation described below.

Goodwill cancellation. Although the right of withdrawal does not apply, the Seller offers the Customer, purely as a goodwill gesture and without acknowledging any legal obligation, the option to cancel their order and obtain a full refund within the thirty (30) minutes following payment, as long as manufacturing of the album has not started. Cancellation is carried out from the order tracking page. After this period, or once album creation has begun, cancellation is no longer possible, subject to the legal guarantees referred to in Article 11.

Article 11: Legal guarantees

Independently of any commercial guarantee, the Customer benefits as of right from the following legal guarantees:

• Legal guarantee of conformity (articles L217-3 et seq. of the French Consumer Code), for 2 years from delivery of the goods;
• Guarantee against hidden defects (articles 1641 et seq. of the French Civil Code), allowing action within 2 years from discovery of the defect.

These guarantees apply to defects of conformity and defects affecting the Product itself. They do not cover the characteristics inherent to the Product described in Article 6 (artistic interpretation of the Rendering, printing tolerances), nor damage resulting from abnormal use, negligence or poor-quality Content supplied by the Customer. Claims under these guarantees are sent to contact@memorypencil.com.

Article 12: Complaints and replacement

Any complaint relating to an apparent defect or a lack of conformity must be sent to contact@memorypencil.com, together with supporting photographs, within a reasonable time following receipt. In the event of a proven defect attributable to Memory Pencil, the Seller will, at its choice and as the preferred remedy, replace the Product free of charge, without the Customer being able to require any other form of compensation beyond their rights under the legal guarantees.

Article 13: Liability

Memory Pencil's liability is strictly limited to direct, foreseeable and personal damage suffered by the Customer and resulting from a proven breach by the Seller of its obligations. To the fullest extent permitted by law, indirect or intangible damage is excluded, such as loss of opportunity, moral prejudice, prejudice linked to a missed occasion or to a delay, loss of data or loss of the Customer's Content.

In any event, and save for mandatory legal provisions to the contrary, the total amount of compensation that may be charged to Memory Pencil in respect of an order may not exceed the price actually paid by the Customer for that order. These limitations do not apply in the event of personal injury, gross or wilful misconduct by the Seller, nor do they affect the Customer's rights under the legal guarantees.

Memory Pencil implements reasonable means to ensure the accessibility and proper functioning of the website, without any guarantee of uninterrupted availability, and cannot be held responsible for malfunctions attributable to the Internet network, the Customer's equipment or third-party providers.

Article 14: Force majeure

Memory Pencil cannot be held liable in the event of non-performance or delay resulting from a force majeure event within the meaning of article 1218 of the French Civil Code and French case law. Without this list being exhaustive, the following are in particular treated as force majeure: failures or delays of partner printers, suppliers or carriers, interruptions to payment or hosting services, cyberattacks, shortages of raw materials, as well as any administrative or health measure preventing performance.

Article 15: Intellectual property

The illustrations generated become the property of the Customer upon delivery, strictly limited to private and family use. Any reproduction, distribution or commercial exploitation is prohibited. All elements of the website (the “Memory Pencil” trademark, logo, visual identity, texts, designs, templates, processes and know-how) remain the exclusive property of MEMORY PENCIL and are protected by intellectual property law. Any unauthorised use is liable to prosecution.

The Customer grants Memory Pencil, solely for the purposes of carrying out the order, a non-exclusive licence to use, reproduce and adapt the Content necessary to make the Product.

Article 16: Personal data

The processing of personal data (including photographs transmitted) is governed by our Privacy Policy, which forms an integral part of these Terms.

Article 17: Complaints and consumer mediation

Any complaint may be sent by email to contact@memorypencil.com. In accordance with articles L.611-1 et seq. of the French Consumer Code, the Customer has the right to use free of charge a consumer mediator in the event of a persistent dispute, after first having tried to resolve the dispute directly with the Seller by means of a written complaint.

Membership of an approved consumer mediator is currently being finalised. Full contact details (mediator name, postal address, website) will be updated in this article as soon as the membership takes effect.

The Customer may also use the European online dispute resolution platform: ec.europa.eu/consumers/odr.

Article 18: Promotional codes and gift cards

Any discount codes, ambassador codes and gift cards are not combinable unless otherwise stated, nor transferable, refundable or convertible into cash. They are valid under the conditions and time limits specific to each operation. Memory Pencil reserves the right to cancel any advantage obtained fraudulently or contrary to its intended purpose.

Article 19: Amendment of the Terms

Memory Pencil reserves the right to amend these Terms at any time. The applicable Terms are those in force and accepted on the date of the order. The version applicable to a given order prevails between the parties for that order.

Article 20: Severability and entire agreement

If any of the provisions of these Terms were declared null, illegal or unenforceable, the other provisions would retain their full validity and the clause concerned would be deemed unwritten or replaced by a valid provision of equivalent effect. These Terms, together with the order and the Privacy Policy, express the entire agreement of the parties.

Article 21: Applicable law and jurisdiction

These Terms are governed by French law. Failing amicable resolution, any dispute relating to their validity, interpretation or performance will be brought before the competent French courts under the rules of ordinary law applicable to the consumer.

Article 22: Language

These Terms are originally drafted in French. An English version is provided for the convenience of non-French-speaking Customers. In case of discrepancy between the French and English versions, the French version alone prevails.