These terms of sale (hereinafter referred to as the “Terms of Sale”) shall govern the supply by Fashion Factory of end-of-line clothes and fashion accessories (hereinafter referred to as the “Products”) to professionals specialised in the distribution of ready-to-wear clothes (hereinafter referred to as the “Customer(s)”).
1 - contract documents
Opening an account with Fashion Factory and/or placing an order with the latter implies firstly acceptance of these Terms of Sale and, secondly, the waiver by the Customer of any provisions to the contrary contained in the Customer’s legal or commercial documents. The Customer shall inform Fashion Factory of the categories and quantities of Products required. On the basis of such information, Fashion Factory shall draw up one or more pro forma invoices.
Fashion Factory shall have the right to require the Customer to make a down payment or a payment on account. The amount of such payments shall be transferred and allocated to the corresponding pro forma invoices in proportion to their value.
Depending on the quantities requested, it may be necessary to draw up and issue the pro forma invoices to the Customer after a period corresponding to the time necessary for the preparation of the Products. Each invoice shall correspond to a separate batch of Products.
Each pro forma invoice is a binding order and shall have a fixed validity period specified in the invoice itself.
The pro forma invoice shall be subject to acceptance by the Customer. Acceptance shall take the form of an electronic mail or any other written means sent during the validity period of the pro forma invoice by the Customer to Fashion Factory, specifying the references of the said invoice and the Customer’s approval of such invoice. Acceptance shall also be deemed to have been given by the Customer, conclusively and without the need for written acceptance, in the event that the latter, after receipt of the pro forma invoice and during its validity period, pays either the total amount of the invoice or the down payment fixed in the said invoice.
In the event that the pro forma invoice is not accepted, Fashion Factory shall reimburse any payment on account made by the Customer, prior to the drawing up of the invoice, after deduction of preparation costs for the Products, corresponding to 5 % of the total amount of the pro forma invoice that Fashion Factory will retain as compensation.
The reciprocal undertakings of the parties shall arise solely from the following documents, forming the contract (hereinafter referred to as the “Contract”):
> Terms of Sale,
> Pro forma invoice accepted by the Customer.
2 - availability and collection of the products
2-1. Place of collection of the Products: Once the pro forma invoice has been drawn up, the Products shall be made available for collection at Fashion Factory’s warehouses located at the following address: Monaco Logistique, Porte 64, Bât M, Zone 10, Parc d’Activités Logistiques Saint Isidore, 06284, Nice.
2-2. Collection of the Products: The Customer or its agent shall be responsible for the collection of the Products from Fashion Factory’s warehouses. It is expressly specified that the collection of the Products shall be subject to full payment by the Customer of the amount of the pro forma invoice.
2-3. Non-collection of the Products: In the event that all or part of the Products are not collected within three (3) months from the payment of the total amount of the order, the sale shall be cancelled. Such cancellation shall pertain only to the non-collected Products and shall take place as of right within fifteen (15) days following the sending to the Customer of a letter informing the latter of the non-collection of the Products and the cancellation of the sale of such Products, sent by recorded delivery (signed for) or by any other equivalent means. On account of such cancellation, Fashion Factory shall reimburse the sale price of the non-collected Products to the Customer, after deduction of 5% of such price for the fixed storage costs incurred and 15% of such price by way of a liquidated damages clause, to compensate the loss caused by the cancellation on account of the Customer.
3 - acceptance of the products
At the time of collection of the Products from Fashion Factory’s warehouses, the Customer or the transporter appointed by the Customer shall check the state and conformity of the Products to the order. Receipt and final acceptance of all of the Products shall take place in the absence of any reservations raised by the Customer or its appointed transporter on removal.
4 - price and payment terms
4-1. Amount - Costs – Taxes – Price review: The prices indicated are in Euros, exclusive of taxes, for collection from Fashion Factory’s warehouses. In addition to the indicated prices, the applicable mandatory taxes, and in particular VAT, shall also be payable. Bank charges in respect of the payment of the order, such as charges for transfers from abroad, shall be borne in full by the Customer. Fashion Factory reserves the right to modify the prices at any time. The Products shall however be invoiced on the basis of the prices in force at the time of receipt of the order.
4-2. Payment Terms: Fashion Factory shall have the right to request a down payment or payment on account. The amount of such payments shall be specified in the pro forma invoice(s) sent to the Customer. Unless provided otherwise, the Customer undertakes to pay the balance of the order or the total amount of the order within three (3) weeks following the date of the pro forma invoice issued by Fashion Factory. In any case, the balance of the order must be paid in full at the time of the removal of the Products. Global payments made by the Customer, corresponding to various invoices, shall be allocated in proportion to the value of each order.
4-3. Sales to non-EU countries: In the event of a sale to a Customer established outside of the European Union, the latter may choose between the following two options:
- Either the Customer will pay the VAT on the total amount of the order, with Fashion Factory undertaking to reimburse the invoiced VAT to the Customer within 7 DAYS following receipt of the customs certificate drawn up in France and stamped by the last European Union customs border point of exit, certifying that the Products have left the European Union (Stamp of copy No. 3 of the Single Administrative Document (S.A.D.)).
- Or the customs and transport procedures will be entrusted to Monaco Logistique, Fashion Factory’s agent, or to any other clearance agent subject to Fashion Factory’s prior approval. The Customer shall bear any costs relating to customs and transport procedures.
5 - consequences of non-payment
5-1. Payment of down payment but non-payment of the balance: In the event that the Customer makes the down payment or the payment on account but does not pay the balance of the order within the period of three (3) weeks set out in clause 4.2, Fashion Factory shall have the right to cancel the order. Such cancellation shall take effect as of right on the date of the sending of an electronic mail to the Customer informing the latter of the non-compliance with the terms of payment and the subsequent cancellation of the order. As a result of such cancellation, the Customer shall owe Fashion Factory 5% of the total amount of the order for fixed costs incurred for preparation and storage of the Products and 15% of the total amount of the order, by way of a liquidated damages clause, in compensation for the loss caused by the cancellation of the order. The sums owed in this way by the Customer shall be offset against amounts already paid to Fashion Factory by the Customer by way of a down payment or payment on account. Any sums paid in excess of 20% of the total amount of the order shall be reimbursed to the Customer. Fashion Factory may claim payment of any part of the sums owed by the Customer that are not covered by the sums already paid.
5-2. Non-payment of the total amount of the pro forma invoice: In the event that the Customer was not required to make a down payment or a payment on account and the latter does not settle the total amount of the pro forma invoice within the three (3) weeks specified in clause 4.2, Fashion Factory’s offer formally recorded in the pro forma invoice shall automatically be rendered null and void, without any procedures being necessary.
6 - reservation of title
Property in the Products shall pass on the date of the payment in full by the Customer of the Products.
7 - liability
Once the Products have been collected from Fashion Factory’s warehouses, the Customer shall be liable for any damage sustained or caused by the Products, in particular during transport. The Customer shall insure the Products against the risks of theft or damage. As a general rule, Fashion Factory shall not be liable for any material or non-material losses, whether direct or indirect, relating to the use or the immobilisation of the Products.
8 - evidence
Electronic mails shall be admissible as proof of the acceptance of the orders by the Customer, even if the person sending such electronic mail has not used an electronic signature, in the event that the content shows the Customer’s approval. Electronic mails sent using one of the Customer’s electronic mail addresses shall be deemed to have been sent by a person duly authorised to place orders.
9 - applicable law - jurisdiction
It is agreed that Monegasque law shall govern the Contract. Any disputes between the parties relating to the formation, validity, interpretation, performance or termination of the Contract that the parties are unable to settle out-of-court, shall be subject to the jurisdiction of the Monegasque Courts. The parties assign territorial jurisdiction to such Courts regardless of the place of performance or residence of the defendant. This clause, which is expressly agreed upon by the parties, shall also apply in the event of summary or interim proceedings, multiple defendants or third party proceedings.