GENERAL CONDITIONS OF SALES AND DISTRIBUTION

 

1.    Scope. Any order submitted by a retailer or a reseller (the « Client ») to ZEPHYR AND CO (ZEPHYR AND CO SARL, with head offices at 60 av. de la Grande Bégude 13770 VENELLES - France, registered with the Trade and Company Register of Aix-en-Provence under n° 792 571 499, herein « ZEPHYR ») is governed by the present general conditions of sales and distribution (« GCS »), the order implying acceptance of the GCS without exception.

2.     The GCS prevail over any other document exchanged between the parties, whenever such document may have been brought to the attention of ZEPHYR. Any condition departing from or adding to the GCS shall require prior written approval from ZEPHYR.

3.     The fact that ZEPHYR may refrain from exercising any right under the GCS shall not constitute a waiver of said right.

 

2. Orders.

2.1. Client sends to ZEPHYR a quote request. ZEPHYR then issues an offer proposal under proforma invoice, setting forth the reference and description of the product(s), quantities, and price and reproducing the present GCS. The Client’s order is formalized by the payment of the price set up in the offer proposal. Such payment must be made within 30 days from the issuance of the offer proposal, unless the parties agrees upon a different deadline in which case the order shall be formalized by the return of the countersigned offer proposal which shall have to be received by ZEPHYR within 5 days from the sending of the offer proposal to Client.

2.2. After reception of the offer proposal, should the Client express reserves or oppose conditions departing or adding to the GCS or to specific conditions set forth in the offer proposal, the sale shall not be carried out unless prior written approval from ZEPHYR upon such reserves or conditions which shall give rise to the issuance of a new offer proposal cancelling and replacing the previous one. The order shall be definitively formalized as set forth under article 2.1. above.

2.3. If a Client requests a specific product not referenced in the catalog of ZEPHYR, ZEPHYR shall send the Client a sample corresponding to its request. ZEPHYR shall invoice such sample. If the Client agrees upon the sample, it shall issue an order as provided for here above and shall return the sample to ZEPHYR, at its own costs. When sample is returned, ZEPHYR shall issue a credit note. If sample is not returned within 30 days from the Client’s reception of the sample, Client shall pay the sample invoice.

3. Prices and payement conditions.

3.1. Unless provided for otherwise in the offer proposal, prices are set forth in Euros, without taxes, EXW ZEPHYR’s store-warehouse.

3.2. Payment shall be made in Euros within 30 days from the date of issuance of the offer proposal, unless provided for otherwise in the offer proposal. A final invoice shall be given to Client on products ‘delivery.

3.3. A payment term may be granted by ZEPHYR in the offer proposal only in consideration, in particular, for the guarantees given by the Client and quantities of purchased products.

In accordance with article L.441-6 of the Code de Commerce, if ZEPHYR has granted a payment term, ZEPHYR may claim, in the event of late payment and without prior notice, (i) late penalties, and (ii) recovery costs corresponding to a lump sum of 40 Euros, or any other amount in excess upon evidence. Such penalties shall amount to the interest rate applied by the European Central Bank to its most recent main refinancing operations plus 10 points.

In the event Client fails to pay any invoice at due date, all other invoices shall be due, regardless of any previously agreed to conditions.

Breach of payment terms shall also allow ZEPHYR to suspend any orders, without prejudice to any other form of action.

 

Breach of payment remaining unremedied 48 hours after a notice to perform shall allow ZEPHYR to terminate the sale ipso jure and to require the products’ return, without prejudice to any other damages.

In the event of payment by means of commercial paper, the non return of the commercial paper shall be deemed to be a refusal of acceptance comparable to a default payment. When payment is made in installments, the default of payment of any installment shall render the whole debt due without prior notice.

4. Retention of title. When ZEPHYR has granted payment terms, all delivered products are sold with a clause expressly subordinating the transfer of their ownership to full payment of the price in principal interests and incidentals. Should payment not be made within the time limit agreed upon between the parties, ZEPHYR reserves the right to immediately take back the delivered products and to terminate the sale.

Payment shall be deemed to have been made when the price is actually received on ZEPHYR’s bank accounts. If the price is paid by installments, ownership of delivered products shall pass to Client when the last installment is paid. The Client may resell the products provided that retention of title is imposed to its own purchaser. The latter shall pay any due amounts directly to ZEPHYR.

5. Payment guarantee. ZEPHYR reserves the right, at any time and subject to the risks incurred, to set up a ceiling to the outstanding amounts due by any Client or additional guarantees. ZEPHYR shall be free to evaluate the effectiveness of such guarantees. If these guarantees are refused, ZEPHYR may simply cancel the orders not yet delivered or may require the restitution of delivered products, the shipping costs being borne by Client. Moreover, deferred or term receivables shall become immediately due.

6. Delivery and transfer of risks. Deliveries shall be made in accordance with availabilities in the order the orders are received. ZEPHYR may deliver the orders in full or in part. All deliveries shall be EXW ZEPHYR’s premises (Incoterms ICC 2010), unless otherwise agreed upon by ZEPHYR. Transport, insurance, customs and handling operations are borne by and at the expense and risk of the Client. When the Client is located outside France, it undertakes that:

-              the customs broker coordinates with ZEPHYR and reports to it full completion of the export formalities, in particular by providing it with the products’ declared prices, and

-              evidence of export and/or exit of the European Union territory is systematically communicated to ZEPHYR as soon as possible after export.

Risks are transferred to Client upon dispatch of the products in ZEPHYR’s premises, without prejudice of ZEPHYR’s right to benefit from section 4 of these GCS if ZEPHYR has granted payment terms. Delivery timeframes are indicated for information purposes only. In no event shall any failure to deliver products in such timeframes justify cancellation of the order, or grant the Client any right to penalties or damages whatsoever.

7. Claims. 7.1. Client shall inspect all batches upon delivery and exercise any claims in relation with qualities of the products, their packaging and any missing products. Such claims shall be immediately made against carrier, on the delivery order. Within 24 hours of such claims, Client shall notify such claim to ZEPHYR by fax or email in order that ZEPHYR exercises any claims against carrier. In no event shall ZEPHYR be liable for damages, losses or theft of products during transport even if ZEPHYR has chosen the carrier.

7.2. Without prejudice of Client’s claims against carrier as indicated above, any claim in relation with defective products, non compliance with the order or missing products must be made by Client against ZEPHYR in writing (fax, email) within 6 working days from the signature of the delivery order. After these 6 days, ZEPHYR shall not guarantee the delivered products for apparent defect and/or non compliance with the order or missing products.

The Client must provide any evidence of the apparent defects, non compliance with the order or missing products and shall give ZEPHYR any access to detect such defect at ZEPHYR’s option and/or to restore it. Client shall not try to repair or have a third party repair the product, unless prior approval of ZEPHYR. No warranty is given for minor defects in workmanship, Client acknowledging such defects cannot be completely avoided for hand-made products.

7.3. ZEPHYR guarantees the products against hidden defects, existing before the sale and that Client could not detect on delivery. Hidden defects shall be deemed to cover any manufacturing defect that impairs their proper use. Such warranty shall be effective within 3 months from the signature of the delivery order by Client. After these 3 months, ZEPHYR shall not guarantee any hidden defects. In order to benefit from such warranty, Client shall notify any hidden defects to ZEPHYR in writing (fax, email) within 10 days of their discovery and shall describe them. Failing to notify such hidden defects within this period of time, Client shall not benefit to such warranty, even if the 3 month period has not expired.

The warranties set forth above do not apply to defects or damages due to improper handling, use or storage of products by Client.

7.4. Defective or non compliant products shall not be returned to ZEPHYR unless ZEPHYR delivers a « return authorization » by fax or email.

Return costs shall be borne by ZEPHYR only if the alleged defect(s) or non compliance is actually detected by ZEPHYR.

The products shall only be returned by the carrier chosen by ZEPHYR.

7.5. ZEPHYR’s warranty consists, at ZEPHYR’s option, in the replacement of the products, refund of their price or issuance of a credit note, to the exclusion of any other compensation or action.

 

8. clients’ obligations. ZEPHYR is entitled to operate the brand name « ZEPHYR & CO». These quality products must be marketed in conditions that comply with the image of ZEPHYR, under the responsibility and with experience of qualified staff. The products’ image implies the provision of services likely to satisfy customers.

Client undertakes to distribute products exclusively in the shop or corner approved by ZEPHYR and only in their initial packaging, without removing any labels to which the brand name « ZEPHYR & CO » or cleaning conditions are affixed. Client shall sell products only to customers and is thus forbidden to sell them to traders, wholesalers or retailers. Client shall not market any tarnished, defective or altered product for any reason whatsoever.

Client’s premises must constantly contribute to the image and good reputation of the brand name ZEPHYR & CO. The point of sale shall be designed in order not to affect adversely the image of ZEPHYR & CO.

 

9. Promotional materials and Samples. Any promotional materials made available by ZEPHYR to Client remain ZEPHYR’s property and cannot be moved or sold by Client: they may be used only with ZEPHYR’s consent; the latter reserves the right to take them back without prior notice nor any compensation whatsoever. They shall be used only for the promotion and sale of ZEPHYR’s products, to the exclusion of any other use and any use for products other than ZEPHYR’s ones. The same shall apply for any Internet promotional materials to be used on the Internet. To that end, Client undertakes to comply with ZEPHYR’s charter that defines strictly their use’s conditions.

Moreover, it is agreed that products made available to ZEPHYR’s Clients as promotional samples shall not be sold to Clients’ own customers. ZEPHYR shall not be liable for the compliance of such samples with the applicable regulations and does not give any warranty with respect of such samples.

 

10. Internet sales. Client undertakes to sell the products exclusively in a physical point of sale and in their initial packaging. Client may additionally sell the products on the Internet with prior approval of ZEPHYR and subject to its compliance with the requirements that may be imposed by ZEPHYR in connection with its Internet marketing policy. Client shall have to hold a number of products sufficient to respect delivery timeframes satisfying for customers.

 

11. Intellectual property and confidentiality. The sale of products under the present GCS cannot be deemed to include the transfer or license to use intellectual property rights of ZEPHYR in connection with the products. Client acknowledges that all information and commercial or technical documentation, drawings and models that ZEPHYR communicates under the order are and remain the sole property of ZEPHYR and must remain strictly confidential. Client agrees to protect such information and documents and to keep them strictly confidential. It shall refrain from using such information and documents for purposes outside the performance of the order, and from disclosing them directly or indirectly to unauthorized third parties.

As provided for by applicable regulations, Client shall not copy, represent, and alter in whole or in part the designs of products under ZEPHYR & CO brand name. Client shall not communicate to any third party any information that makes the reproduction of these models possible in whole or in part.

 

12. Force majeure. ZEPHYR shall be automatically discharged from any and all commitment relating to orders in the event of the occurrence of a case of force majeure, including but not limited to strikes, fire, explosion, floods, serious accidents, earthquakes, destruction in whole or in part of ZEPHYR’s premises or its inventory, or the termination of its activities, or in any event outside ZEPHYR’s control, including difficulties in the supply of raw materials or spare parts, defective deliveries from its owns providers or changes to applicable regulations.

 

13. Termination. Any order or commercial relationship between ZEPHYR and Client may be terminated immediately ipso jure should Client fail to remedy a breach within ten working (10) days from written notification to this effect.

 

14. Applicable law – Competent court. Any order issued under the present GCS shall be governed by French law. The parties expressly agree that all disputes in connection with the implementation of an order shall be submitted to the exclusive jurisdiction of the commercial tribunal of Aix-en-Provence, France, including in case of exceptional or provisional proceedings, multiple defendants or introduction of third parties.