GENERAL TERMS AND CONDITIONS OF SALE
Pursuant to Article L 441-6 of the French Commercial Code (Code de Commerce), these general terms and conditions of sale shall serve as the sole foundation of the commercial relationship between the Parties.
They define the conditions under which MARANELLO (hereinafter the “Supplier”) shall supply to professional Buyers (hereinafter the “Buyers” or “Buyer”), who so request through direct contact or in paper-based form, the following Products: items, textiles, and/or all materials that may or may not be used for promoting and/or communicating about a brand (hereinafter the “Products”).
These general terms and conditions shall apply unconditionally and without restriction to all sales within the same category concluded by the Supplier with Buyers, regardless of any clauses in the Buyer‘s documents, and in particular its general terms and conditions of purchase.
In accordance with current regulations, these general terms and conditions of sale shall be systematically provided to any Buyer who so requests, to enable it to place an order with the Supplier, with the understanding that they shall be, in any event, transmitted to the Buyer in an appendix to the quotations.
They shall also be provided to any distributor (excluding wholesalers) prior to entering into a single agreement referred to in Article L 441-7 of the French Commercial Code, within the statutory deadline.
By placing an order for Products, the Buyer confirms acceptance of these general terms and conditions of sale and, for electronic orders, the general terms and conditions of use of the Supplier‘s website.
The information contained in the Supplier‘s catalogues and flyers and the latter’s prices are given for information purposes only and may be revised at any time.
The Supplier is entitled to make any changes to them that it deems useful and/or necessary.
In accordance with current regulations, the Supplier reserves the right to deviate from certain clauses of these general terms and conditions of sale, according to the negotiations conducted with the Buyer, by establishing special terms and conditions of sale.
The Supplier may also establish, on the basis of objective criteria, general terms and conditions of sale for specific categories that deviate from these general terms and conditions of sale, depending on the type of clientele in question.
In such a case, the category-based general terms and conditions of sale shall apply to all Buyers meeting such criteria.
ARTICLE 2 – Orders – Prices
2-1 – The Supplier shall send the Buyer a quotation together with an appendix containing these general terms and conditions of sale.
The Buyer shall submit its comments to the Supplier to enable the latter to issue a purchase order, which shall be sent by the Supplier to the Buyer by any means allowing proof of sending (e-mail, fax, personal delivery with receipt acknowledged, registered letter with acknowledgement of receipt).
The receipt and confirmation of the order shall be confirmed either by signature of a purchase order or by any document confirming the Buyer‘s acceptance of the terms and conditions laid down in the purchase order issued by the Supplier.
The data recorded in the Supplier‘s computer system shall constitute proof of all transactions concluded with the Buyer.
The Products are supplied at the prices mentioned in the purchase order sent to the Buyer.
These prices are final and cannot be modified during their period of validity.
The Supplier warrants the availability of the stocks of Products on the date it sends the purchase order to the Buyer, for a period of forty-eight (48) hours.
2-2 – Any changes requested by the Buyer shall be subject to the Supplier‘s capabilities and at the latter’s sole discretion.
2-3 – If the order is cancelled by the Buyer after it has been accepted by the Supplier, after the date stipulated on the quotation or in the special terms and conditions, for the supply of Products ordered, for any reason whatsoever excluding cases of force majeure, the deposit paid at the time of ordering, as defined in the “Deliveries” article herein, shall be automatically acquired by the Supplier and no reimbursement will be owed by the latter.
In addition, the Supplier shall invoice the Buyer for the costs and fees already incurred for the manufacture and/or purchase, shipping, and/or storage of the Product(s), upon presentation of supporting documents.
2-4 – The Products shall be provided at the Supplier‘s prices applicable on the date the order is placed and, as the case may be, in the specific commercial proposal sent to the Buyer.
These prices are final and cannot be modified during their period of validity as indicated by the Supplier.
These prices are net and exclusive of VAT, ex works, and do not include packaging.
They do not include shipping costs, any customs duties, or the cost of insurance, which remain payable by the Buyer.
Specific pricing conditions may be applied, depending on the specific requirements requested by the Buyer with regard to, in particular, the terms and conditions of delivery or the terms and conditions of payment.
A specific commercial offer will then be sent to the Buyer by the Supplier.
ARTICLE 3 – Terms and conditions of payment
For any order of one or more Products purchased in France or Europe by the Supplier for a total amount of less than €30,000 (excluding taxes), payment is due thirty (30) days from the date of receipt of the Products by the Buyer.
For any order for one or more Products purchased in France or Europe, for a total amount of more than €30,000 (excluding taxes), a thirty percent (30%) deposit will be owed upon signature of the purchase order. The balance is payable within thirty (30) days of the date of receipt of the Products by the Buyer.
For any order for one or more Products purchased outside Europe, for a total amount of more than €30,000 (excluding taxes), an initial forty percent (40%) deposit will be owed upon signature of the purchase order. A second forty percent (40%) deposit shall be owed upon shipment of the Products, upon presentation of supporting documents. The balance shall be payable within thirty (30) days of the date of receipt of the Products by the Buyer.
In the event of a request for payment of a deposit, the Buyer’s order will not be accepted until the deposit has actually been received.
In case of late payment or settlement of the amounts due by the Buyer after one of the aforementioned deadlines, late fees calculated at three times the legal interest rate shall be applied to the total amount (including taxes) of the price mentioned on the invoice and shall be automatically due to the Supplier ipso jure and without any prior formalities or notice.
A lump-sum fee of forty (40) euros for recovery costs shall be due ipso jure, and without prior notice, by the Buyer in case of late payment.
The Supplier reserves the right to request additional compensation, upon presentation of supporting documents, from the Buyer if the recovery costs actually incurred exceed this amount.
The Supplier shall retain ownership rights over the Products sold, enabling it to repossess such Products, until full payment is received from the Buyer. Any deposit paid by the Buyer shall be retained by the Supplier as a lump-sum compensation, without prejudice to any other action that it may be entitled to take against the Buyer as a result.
However, the risk of loss and deterioration shall pass to the Buyer upon delivery of the ordered Products.
The Supplier shall not grant any discount for payment made before the date shown on the invoice, within a period shorter than that mentioned in these general terms and conditions of sale.
ARTICLE 4 – Deliveries
Products purchased by the Buyer shall be delivered within the deadline specified in the quotation (or in the special terms and conditions).
This period does not constitute a compulsory deadline and the Supplier shall not be liable to the Buyer in case of delivery delays of less than sixty (60) days.
In case of a delivery delay of more than sixty (60) days, the Buyer may request cancellation of the sale. Deposits already paid by it shall then be returned by the Supplier.
The Supplier shall under no circumstances be liable in case of delay or suspension of delivery for reasons attributable to the Buyer or in cases of force majeure.
Products will be delivered to the address(es) mentioned in the approved purchase order(s).
In any event, the Buyer shall verify that the Products appear to be in good condition at the time of delivery.
If no complaints are expressly made by the Buyer at the time of delivery, the Products delivered by the Supplier shall be deemed to conform, in quality and quantity, to the order.
The Buyer shall have a period of three (3) days from the date of delivery, as listed on the delivery note, of the ordered Products to submit any such complaints in writing to the Supplier.
The Supplier shall under no circumstances be liable in case of delay or suspension of delivery for reasons attributable to the Buyer or in cases of force majeure, within the meaning of Article 1218 of the French Civil Code (Code Civil) and subsequent case law.
No claim will be validly accepted in the event of non-compliance with the aforementioned provisions.
ARTICLE 5 – Transfer of ownership – Transfer of risk
Ownership of the Products shall not transfer to the Buyer until the latter has made full payment of the price, irrespective of the date of delivery of such Products.
However, the risks of loss and deterioration of the Products shall transfer from the Supplier upon delivery and acceptance of such Products by the Buyer.
ARTICLE 6 – Supplier’s liability – Warranty
The Products delivered by the Supplier are promotional products that are not covered by any legal warranty from the Supplier.
Some specific Products marketed by the Supplier may be covered by a manufacturer’s warranty.
Any such warranty will be mentioned on the invoice.
ARTICLE 7 – Unforeseeable circumstances
In the event that the Supplier or the Buyer wishes to invoke unforeseeable circumstances as defined in Article 1195 of the French Civil Code, in connection with the sale of Products from the Supplier to the Buyer subject to these general terms and conditions of sale, such as in the case of :
- an increase of more than 10% in the cost of one or more of the raw materials used in the composition of the Product;
- an increase of more than 10% in shipping costs;
- an increase of more than 10% in customs duties and/or taxes;
and, more broadly, a change in economic circumstances between the conclusion of the sale and delivery, and with a significant adverse effect on the economic balance of the contract.
In any of the above cases, the Supplier and the Buyer agree that they shall seek a conciliatory solution beforehand and shall refrain from refusing implementation of such conciliatory solution.
This conciliatory procedure shall be as follows:
- a meeting shall be organised at the initiative of the first Party to act, within no more than eight (8) days of the date on which such Party has informed the other Party of the necessity of holding a meeting;
- the meeting shall take place between Parties that are physically present;
- the Parties may be assisted by the counsel of their choice;
- the expenses, fees, and costs incurred by each of the Parties in the conciliatory process shall be borne by them;
- an agreement or a statement of disagreement must be reached within no more than fifteen (15) days.
After the fifteen (15) day period mentioned above, the conciliation attempt shall be deemed complete.
The legal regime of unforeseeability provided for in Article 1195 of the French Civil Code applies only to the sale of Products from the Supplier to the Buyer, subject to these general terms and conditions of sale, and to those events or circumstances with an impact causing a variation in the initial price of the transaction of more than ten percent (10%).
If the renegotiation is successful, the Parties shall quickly draw up a new order formalising the results of such renegotiation for sales of the Products in question.
In addition, in case of failure of the renegotiation, the Parties may, pursuant to Article 1195 of the French Civil Code, apply to a court, by mutual agreement, to request to terminate or adapt the contract.
In the event that the Parties fail to reach a mutual agreement to bring the matter before a court, within a period of fifteen (15) days, the first Party to take action may itself apply to a court for revision or termination of the contract.
ARTICLE 8 – Requests to enforce specific performance
Notwithstanding Article 1221 of the French Civil Code, the Parties agree that in case of a failure by either Party to fulfil its obligations, the Party that is a victim of the failure shall not be entitled to request specific enforcement thereof.
ARTICLE 9 – Proportional reduction in price in case of incomplete performance of the obligation
Should the debtor fail to fulfil any of its obligations, the creditor may, pursuant to Article 1223 of the French Civil Code, if no response is received within thirty (30) days of serving formal notice to perform to the debtor by registered letter with acknowledgement of receipt, accept an imperfect performance of the contract and request a proportional reduction in price by sending written notification to the debtor of the obligation which is binding on the latter.
The price will therefore be adjusted simply upon unilateral request by the creditor.
If the creditor of the obligation has paid, the latter may, under the same conditions, accept imperfect performance of the contract and request a proportional reduction in the price and reimbursement of the overpayment by the debtor of the obligation.
If the Parties fail to reach an agreement on the amount of such proportional reduction in price, such reduction shall be established by an independent expert in accordance with Article 1592 of the French Civil Code.
ARTICLE 10 – Defence of non-performance
Pursuant to Article 1219 of the French Civil Code, each Party may refuse to perform its obligation, even though it is due, if the other Party does not perform its own obligation and if such non-performance is sufficiently serious, i.e. if it is likely to jeopardise the continuation of the contract or to fundamentally upset its economic balance.
Performance shall be suspended immediately upon receipt by the defaulting Party of the notice of failure sent to it for this purpose by the Party that is the victim of the failure indicating the intention to apply the defence of non-performance, as long as the defaulting Party has not remedied the noted failure, served by registered letter with acknowledgement of receipt or on any other durable written medium that provides proof of sending.
This defence of non-performance may also be used pre-emptively, pursuant to Article 1220 of the French Civil Code, if it is clear that one of the Parties will not perform its obligations on time and that the consequences of such non-performance are sufficiently serious for the Party that is a victim of the failure.
This option shall be used at the risk of the Party taking the initiative.
Performance shall be suspended immediately upon receipt by the allegedly defaulting Party of notice of the intention to pre-emptively apply the defence of non-performance, until such time as the allegedly defaulting Party performs the obligation in respect of which a future failure to perform is clear, served by registered letter with acknowledgement of receipt or on any other durable written medium that provides proof of sending.
If the impediment is definitive or lasts more than two (2) months, these general terms and conditions shall be purely and simply terminated in accordance with the procedures laid down in the article “Rescission of the contract” due to a failure by a Party to fulfil its obligations.
ARTICLE 11 – Force majeure
The Parties cannot be held liable if the non-performance or a delay in the performance of any of their obligations described herein are a result of a case of force majeure within the meaning of Article 1218 of the French Civil Code.
The Party noting the event shall immediately inform the other Party of its inability to perform its service and provide justification for such inability to the latter.
The suspension of obligations shall not under any circumstance give rise to liability for non-performance of the obligation in question or to the payment of damages or late penalty fees.
Performance of the obligation will be suspended for the entire duration of the case of force majeure if such case is temporary and does not exceed sixty (60) days.
As a consequence, as soon as the cause for the suspension of their reciprocal obligations has disappeared, the Parties must make every effort to resume the normal performance of their contractual obligations as quickly as possible.
To this end, the Party prevented from performing its obligation must inform the other Party of the resumption of its obligation by registered letter with acknowledgement of receipt or by any extrajudicial process.
If the impediment proves to be of a permanent nature or exceeds sixty (60) days, these general terms and conditions shall be purely and simply rescinded under the terms set out in Article 12 “Rescission of the contract”, below.
During the suspension, the Parties agree that the costs arising from the situation will be borne by the Party prevented from performing its obligations.
ARTICLE 12 – Rescission of the contract
If one of the Parties fails to comply with its obligations in one of the following ways:
- the Supplier fails to deliver the Products ordered and/or in case of late delivery, for which it is solely responsible (excluding cases of force majeure);
- the Buyer fails to pay the invoice(s) by the due date;
- cases of force majeure, as defined in Article 11;
the contract may be rescinded at the discretion of the aggrieved Party.
It is expressly agreed that such rescission for breach by a Party of its obligations will take place ipso jure if no response is received within thirty (30) days of dispatch of notice to remedy the non-performance.
The notice may be sent by registered letter with acknowledgement of receipt or by any extra-judicial document.
Such enforcement notice must mention the intention to enforce the present clause.
It is expressly agreed that such rescission for breach by a Party of its obligations will take place ipso jure, with the formal notice resulting solely from the non-performance of the obligation, without warning or the performance of administrative formalities.
The Parties expressly agree that the debtor of an obligation to pay under the terms of this agreement shall be legally in default by the mere fact that the obligation is due, in accordance with Article 1344 of the French Civil Code.
Rescission due to the inability to perform an obligation that has become excessively burdensome shall, notwithstanding the clause below on rescission for failure by a Party to perform its obligations, only take place fifteen (15) days after receipt of formal notice declaring the intention to invoke the present clause notified by registered letter with acknowledgement of receipt or by any extrajudicial process.
In such an event, if the Buyer initiated the rescission of the contract due to unforeseen circumstances, the latter shall pay the co-contracting Party compensation covering the costs and fees already incurred for the manufacture and/or purchase, shipping, and/or storage of the Product(s).
Any disputes that may arise in connection with this contract regarding its validity, interpretation, performance and termination, and the consequences and repercussions of such disputes, shall be brought before the Commercial Court of Nanterre.
ARTICLE 14 – Applicable law – Contract language
The Parties expressly agree that these general terms and conditions of sale and the resulting purchase and sale transactions are governed by French law.
They are written in French.
In the event that they are translated into one or more languages, the French text will be the only legally binding version in the event of a dispute.
ARTICLE 15 – Buyer’s acceptance
The Buyer expressly accepts and agrees to these general terms and conditions. The Buyer declares and recognises that it has read and understood such terms and conditions and therefore waives the right to rely on any contradictory document and, in particular, its own general terms and conditions.