Close To Clothes general terms and conditions of sale and services
Le Groupe CLOSE TO CLOTHES (ci-après désigné « CTC ») est notamment composé de la société CLOSE TO CLOTHES SAS, de la société de droit Hongkongais CLOSE TO CLOTHES ASIA PACIFIQUE et de la société de droit chinois Shenzhen ZhanShang Labels Trading Co., Ltd ; CTC sous-traite la production d’étiquettes auprès d’un pôle de partenaires industriels (« Usines »).
Les présentes conditions générales (ci-après « CGV ») s’appliquent à toutes réservation de stock passées auprès de CTC par le Client exploitant d’une marque (ci-après le Client, ou Client-marque).
The CLOSE TO CLOTHES Group (hereinafter referred to as “CTC”) is comprised of the company CLOSE TO CLOTHES SAS, the under Hong Kong law incorporated company CLOSE TO CLOTHES ASIA PACIFIC and the under Chinese law incorporated company Shenzhen ZhanShang Labels Trading Co., Ltd; CTC subcontracts the production of labels to a cluster of industrial partners (“Factories”).
1.3. These general terms and conditions (hereinafter “GTC”) apply to all stock reservations placed with CTC by the Customer operating a brand (hereinafter the Customer, or Customer-brand). The Customer is deemed to have accepted these GTC in full and without reservation. Any clause in these GTC is renegotiable by the Customer via a specific written agreement which shall take precedence over the GTC. This agreement must, however, have been stipulated in writing and accepted by the parties before any Reservation is made, failing which, it will be deemed unwritten.
1.4. The fact that CTC does not take advantage, at a given moment, of any of the clauses of these GTC, may never be interpreted as a waiver of its right to take advantage of them at a later date, or of requiring their strict application.
1.5. In the event of a contradiction between a public policy text and a stipulation of these GTC, said stipulation will be deemed unwritten, without affecting the validity of the other stipulations, the parties undertaking to find an economically equivalent clause, if necessary, by recourse to CMAP mediation.
1.6. The purpose of these GTC is to define the conditions under which CTC undertakes to execute the Customer’s Reservation
2. CONDITIONS FOR EXECUTING A STOCK RESERVATION (or BOOKING)
2.1. PRIOR TO RESERVATION: SAMPLE AND PRICE OFFER
2.1.1. Prior to launching production, CTC formally advises the Customer to place a sampling order
intended to develop a reference sample which will make it possible to meet the Customer’s specifications. However, when the Customer decides to make a Reservation without prior sampling and testing (limiting itself to the provision of a model or a sample not produced by CTC), they assume full responsibility in the event of non-compliance or defect in the final product which could have been avoided by the prior sampling procedure (in particular with regard to the risk of alteration of the goods, batch difference, having regard to their intrinsic quality, or when they are intended to undergo treatment dyeing, stone-washing, bleaching, or even chemical, thermal, mechanical treatment, etc.) The Customer is informed that the sampling order is payable at the time the sampling order is placed.
2.1.2. Placing a Reservation order requires the prior issuance of a Price Offer o obtain a Price Offer, the Customer sends CTC their product model, and the desired quantities that they agree to order. Failing to notify in writing, at this stage, its specific quality requirements, the Customer is deemed to have accepted for any subsequent Reservation to be limited only to the quality requirements of CTC (RSL), which can be consulted on the following link: www.closetoclothes.com.
2.1.3. Each reference corresponds to a unique product (or item) which has been the subject of a quotation in the Price Offer.
2.1.4. All Price Offers issued by CTC have a validity period stipulated in the Price Offer (or 30 days if not specified).
At the end of this period, Price Offers which have not been accepted are considered definitively void and cannot be invoked against CTC.
2.1.5. Once accepted, the prices mentioned in the Price Offer are guaranteed for a period of six (6) months (Guaranteed Period). Acceptance of the Price Offer constitutes a commitment for the Customer to give a Reservation order at least equal to the volumes of the Price Offer as well as a delivery schedule per product. Acceptance of the Price Offer may result from a Reservation order following the sending of a Price Offer.
2.1.6. The Customer having obtained a price quotation (Price Offer) with regard in particular to the desired quantities, undertakes to place a Reservation covering all of the said quantities during the Guaranteed Period. Failing this, a contractual forfeiture penalty equal to 50 % of the price of the quantities of goods not covered by a Reservation by the Customer will be invoiced to the Customer by CTC.
2.2. RESERVATION (or BOOKING)
2.2.1. A Reservation constitutes a firm production order from the Customer based on the corresponding Price Offer, to constitute a specific stock of products reserved for them. The Customer-brand and/or its manufacturers/subcontractors (hereinafter the “Customer-manufacturer”), will thus be able to order/consume the useful references from this stock and be invoiced progressively when these orders are placed. The list of Manufacturers of the Customer is given to CTC with the provision of its calendar.
2.2.2. The total number of reserved products cannot be less than the quantities requested by the Customer based on which the Price Offer was proposed. The total number of products launched in production cannot be less than the quantities desired by the Customer from which the Price Offer was proposed. If the Reservations are less than these quantities, the Customer becomes liable for a penalty equal to 50 % of the amount of the unreserved goods.
2.2.3. A Reservation involves storage of goods, the duration of which is strictly limited to six (6) months (unless otherwise agreed). At the end of the expiry date, if the Reservation has not been consumed in full, the balance is then invoiced to the Customer and delivered at their expense to their head office. The Customer undertakes to pay this invoice without the deadlines set out in Article 4.2. below. infra.
2.2.4. The cancellation of a Reservation (whether this cancellation occurs at the initiative of the Customer or their fault) and/or failure to use the whole of the Reservation, gives rise to full payment for the products not used and, where applicable, the cost of their destruction if the Customer has not expressed a wish to be delivered by the due date of the corresponding invoice.
2.2.5. Any Reservation made by the Customer is formalised by a document entitled “Reservation confirmation” or “Booking confirmation” established by CTC and returned validated by the Customer However, if it is impossible to proceed in this way, the Reservation will be deemed validated using an email from the Customer specifying their Reservation (quantity and item references), and which will have the status of a written document. This alternative procedure is however not recommended by CTC, so any resulting ambiguity will be interpreted against the Customer.
2.2.6. The Customer acknowledges and accepts in advance the industry practice according to which the production of labels and labelling products may include a margin of error of 10 % more or less for the quantities of each reference ordered, due to the production constraints inherent in the trade. The Customer therefore makes arrangements to reserve quantities taking into account this margin of error, knowing that when the error is not in his favor, no compensation or replacement goods can be claimed. If the quantity produced turns out to be greater, it is deemed to have been accepted by the Customer and will be invoiced accordingly.
2.2.7. Failure to pay for orders made within the Reservation, on the agreed due date, may, at CTC´s discretion, result in the cancellation of the Reservation at the Customer´s expense without prior notice, which the latter accepts and acknowledges.
2.3. PRODUCTION AND DELIVERY TIMES
2.3.1. Reservation production times are specified for information purposes only, on the Reservation confirmation sent to the Customer. the average production time is 6 weeks excluding transport, and the sampling time is 3 weeks excluding transport.
2.3.2. As production and delivery times are given as an indication only, any possible delay cannot justify compensation, cancellation, or refusal to receive the goods, unless preceded by formal notice sent by registered letter, having to make the goods available within 30 days from receipt of the letter, which remained without effect.
2.3.3. The goods remain mainly stored in the Factories or are distributed by CTC to different storage areas according to schedules provided by the Customer.
2.4. TERMS AND CONDITIONS OF DELIVERY AND/OR PROVISION
2.4.1. For any Reservation, delivery is carried out within the framework of the Incoterm and in the currency as validated in the Price Offer. The Customer alone bears all risks relating to delivery (loss, damage, damaged, opened, or torn packages, etc.), as long as CTC provides proof of having diligently handed over the goods to a carrier.
2.4.2. The making available (or delivery if applicable) of the Reservation can only take place if the Customer is up to date with his payment obligations or any other obligation towards CTC. The Customer is informed that the goods are repatriated weekly to its warehouses located in France, Hong Kong, and China, then made available or shipped, on the basis of calls for goods made by the Customer-brand or its manufacturers. A transfer of stock by distribution zone is possible and is carried out once per season and on the basis of a forecast consumption schedule, provided that said schedule has been communicated at least 3 weeks before the desired availability date at the warehouse.
The Customer may request an urgent shipment of his goods without waiting for weekly repatriation; in which case, the costs and risks of shipping will be the responsibility of the Customer even if the shipment is organised by CTC.
2.4.3. The Customer is required to check the condition of the goods upon receipt, as well as the quantities received Reservations, delays or complaints concerning the quantities, apparent defects and non-conformity of the goods must be notified in writing to CTC within 30 days following delivery, in a manner sufficiently precise and complete to establish, in themselves, the existence and extent of damage or non-conformities; in particular, the notification must include the Reservation number as it appears on the barcode sticker of the disputed product, the only reference likely to allow the identification of the defective batch.
Failing strict compliance with this procedure, the goods delivered will be irrevocably deemed to comply with the Reservation and free from any apparent defect.
2.4.4. When the apparent defect and/or the total or partial non-conformity of the goods is claimed, the Customer will specify as soon as possible the exact quantity of the goods to be supplied/replaced and will make an additional Reservation which will be invoiced to him. The disputed goods will be immediately returned to CTC for examination. Upon receipt, if CTC finds that the Customer’s reservations are justified, the Customer will be sent a credit note for the amount of the non-compliant goods, without this fact alone constituting an event giving rise to liability.
2.4.5. Any complaint concerning hidden defects must be notified within a maximum period of 10 days from the appearance of the defect or from the day on which the Customer became aware of it.
2.4.6. Only the damaging delay, directly resulting from the non-compliance or apparent defect of a product, may constitute an event giving rise to liability, provided that CTC has not been able to offer compliant replacement goods within a specified period. 45 days from the day the non-compliance or defect was recognised by all parties.
2.5. DIVISIBILITY OF RESERVATION AND DELIVERIES
If the Reservation is broken down into several deliveries, the defect (whatever the cause) affecting one delivery does not affect or modify the reciprocal commitments regarding the other deliveries. Likewise, if several Reservations have been made, the defect affecting one of them does not modify the reciprocal commitments regarding the other Reservations.
3.1. All prices are exclusive of taxes (in particular excluding VAT and customs taxes) and excluding shipping costs unless specific a prior written agreement between CTC and the Customer. The Customer will be responsible for all exchange fees, bank transfer fees, and other fees for international payment methods.
3.2. However, in the event of an upward variation of more than 5 % in the price of raw materials (by reference to the index of imported raw materials or equivalent index if this index were to be interrupted) and/or the price of shipping costs shipping (the transport price index) and/or storage (warehousing price index), the highest index increase of the 3 indices will be reflected in the price of the goods as it appears in the Price Offer.
4.1. When the Customer makes the Reservation, no payment is due on that date Payment is due as orders for consumption of the stock resulting from the Reservation are placed and the corresponding invoices are issued. If a balance of products from the Reservation has not been the subject of orders and/or if a Customer-manufacturer defaults in the payment of an order, the Customer-brand is deemed personally debtor of the balance of the Reservations and/or unpaid invoices from Customer-manufacturers In this case, an invoice will be issued by CTC, informing the Customer of the sums due in this respect, and the transport costs will remain exclusively their responsibility.
4.2. Unless otherwise stipulated, payment is due 30 days from the date of issue of the invoice.
4.2. Failure to meet payment deadlines will result in the application of conventional interest equal to the interest at the legal rate increased by 10 points, and the total amount due including tax will be increased by a fixed compensation of 20 % to the title of the penal clause.
Finally, the Customer will automatically be liable for a fixed compensation of €40 for collection costs per invoice not paid by the due date, subject to the actual cost of collection.
4.4. In the event of non-compliance with the payment terms referred to in 4.1., and without liability being sought in this regard, CTC may, if it sees fit, cancel the Reservation not yet produced, suspend the execution of its obligations for the duration of the non-performance and/or reduce or cancel any discounts or payment facilities granted to the Customer and/or terminate the contract 30 days after sending a formal notice to pay which remains without effect. And this, without prejudice to any possible liability action.
4.5. In the event of termination under the conditions of point 4.4., any possible deposit paid by the Customer will remain with CTC as a provision for damages, without the Customer being able to demand the execution of the disputed Reservation, nor the delivery of any of the goods possibly produced.
5. TERMINATION-SUSPENSION-GUARANTEE REQUEST
CTC reserves the right to terminate or suspend the Reservation, immediately and automatically and without compensation, totally or partially, or to require guarantees, in the event of any change in the financial and/or legal situation of the Customer which may threaten the recovery of its debt, (ii) in the event of a breach of applicable legislation and/or (iii) in the event of force majeure or events likely to stop or reduce or suspend production, transport , the delivery of goods or to prevent the normal execution of the Reservation, such as war, population confinement imposed by public authorities, pandemic (or epidemic of a lethal disease), military mobilization, terrorist or criminal acts, strikes outside the company, major social unrest, the failure of a supplier (in particular due to collective proceedings), a natural event (floods, earthquake, etc.), fires, burglary of warehouses, interruption of communication routes, the “act of the prince” of an administrative or state authority, an unknown product development risk, or a court decision of a third party.
6. LIMITATION OF LIABILITY CLAUSE
In cases where CTC may be held liable (subject to the conditions and exclusions referred to in particular in Articles 2 and 5 above), its liability is limited to quantified, certain and foreseeable damage This compensation will take the form of a discount, which may not, however, exceed 50 % of the amount excluding VAT of the disputed references and quantities only.
No sum greater than this amount may be claimed or awarded judicially, regardless of the extent, origin or nature of the justified damage.
7. INTELLECTUAL PROPERTY
The Customer declares that it has all licenses and/or intellectual property rights for the brands and distinctive signs whose reproduction it requests in the context of Reservations made to CTC.. Therefore, the Customer guarantees CTC against any action brought against it in respect of the use of said rights. So that if a third party to the contract issues a claim in this respect, the Customer undertakes to indemnify CTC for all the consequences and consequences of such a claim, which includes (i) any damage suffered by CTC (ii) any award of damages, fines, irrecoverable costs and expenses, as well as (iii) any advisory and procedural costs.
8. COMPETENT COURT AND APPLICABLE LAW
Exclusive jurisdiction is conferred on the Paris Commercial Court to hear any dispute between the parties, and only French law will be applied.