GENERAL TERMS AND CONDITIONS OF SALE AND SELECTIVE DISTRIBUTION - INTERNATIONAL -
ARTICLE 1 – GENERAL PROVISIONS
These General Terms and Conditions apply to all sales and distribution agreements entered into between TRUDON and its business customers reselling the products concerned to consumers. Together with the RRP (recommended retail price) and TRUDON’s terms of payment, they form the single basis for all commercial relationships.
In the event that, at any given time, TRUDON does not invoke any one of the provisions herein, this shall not be interpreted as a waiver of its right to invoke that provision at a later date. Similarly, should any of the clauses herein be found null and void, this shall not affect the validity of the other clauses.
If translated into a foreign language, the French version shall prevail.
ARTICLE 2 – CUSTOMER APPROVAL – TERMS AND CONDITIONS FOR THE MARKETING OF PRODUCTS
TRUDON only accepts orders from Business Customers pre-selected based on qualitative and/or quantitative criteria established regarding the Customer’s activity.
Those criteria are based on the brand image of TRUDON’s Products, which are positioned as high-end/luxury.
The Customer shall ensure that the Products are sold under conditions which enable the following:
- promotion both in terms of their display, which must be simple, qualitative and elegant, and of the other products surrounding them
- a broad selection of TRUDON’s products for the end customer
- support for the end customer in the form of advice and testing with the assistance of a qualified staff member
The Customer shall ensure that the Products are not used as loss-leaders for the benefit of other brands.
Minimum assortment: a minimum of 12 different 270g candles scents (12 different SKUs) and 5 different Diffuser scents (5 different SKUs) is to be presented at all time during the duration of the collaboration between the Customer and the Brand.
The Customer must have sufficient stock at all times in line with its commercial potential, which will be determined based on its past and projected sales.
TRUDON may decide to grant exclusivity to one or more distributors. TRUDON shall then determine the territory concerned by that exclusivity. TRUDON shall then refuse all orders from third parties originating in the territory subject to exclusivity.
ARTICLE 3 – ORDERS
The Products may only be ordered in the sales units stated at the price in force.
3.1 – Minimum order
Goods are sold Ex Works (ICC 2020 – our warehouses).
First order: minimum of $4,000 excl. VAT* to be paid on a pro forma basis with the minimum assortment (Article 2).
*excluding display and catalogues
Payment methods: TRUDON accepts payment via Credit Card or Wire Transfer. Check payments will not be accepted. The retailer is granted 10 business days for the wire transfer payment to arrive in TRUDON’s bank account – if the retailer fails to comply, the order will be cancelled, restocked, and a restocking fee of USD 150 app lied to the invoice for the next order.
Subsequent orders: minimum restocking of $1,000 excl. VAT
Delivery costs: charged to the Customer
Restocking: any orders (not including back orders) under $1,000 excl. VAT shall be subject to additional management fees in the amount of $150 excl. VAT
Minimum invoicing: to remain a selected authorized retailer the Client agrees to order a minimum of $10,000 of merchandise per calendar year. If this minimum is not achieved, the Brand TRUDON will search for a new retailer in the close surroundings of the Client's store and to stop collaboration with the Client. Should the end of collaboration be confirmed by the Brand, TRUDON will not repurchase the Client's remaining stocks.
3.2 – Order
The Customer shall be bound by all orders placed by it, regardless of the means of communication (telephone, e-mail, post, etc.). Placing of the order shall imply the Customer’s acceptance of the applicable price and these General Terms and Conditions of Sale.
3.3 – Order receipt
TRUDON shall acknowledge receipt of the Customer’s orders within forty-eight (48) hours. TRUDON’s commitment shall be subject only to the conditions contained in the order acknowledgement, even if these differ from the Customer’s order.
Failing acknowledgement of receipt within the period stated, the Customer’s order shall be deemed accepted.
TRUDON may refuse any orders which (i) do not comply with the agreements between the Parties, (ii) are unusual in terms of the expected delivery times or the quantities to be delivered compared to the quantities generally ordered by the Customer or (iii) are placed by a Customer with which there is an outstanding dispute of any kind.
3.4 – Cancelling or changing an order
From the moment when TRUDON acknowledges receipt of the order, the Customer may not, subject to Article 3.3 above, cancel or change it (delivery times, quantities ordered, items ordered, etc.) without the prior written agreement of TRUDON.
ARTICLE 4 – OPENING AND MAINTAINING AN ACCOUNT – CUSTOMER’S FINANCIAL POSITION
TRUDON reserves the right to make opening and maintaining an account conditional on obtaining accounting, financial and legal records from the Customer, as well as guarantees where applicable.
ARTICLE 5 – PRODUCT DISPLAY
In order to ensure that consumers receive a clear and consistent vision of the TRUDON brand, TRUDON would like to promote the use of uniform display equipment, to be provided to the Customer by TRUDON.
The Customer shall state what in-store advertising it needs on its purchase order.
The Customer shall display TRUDON’s candles according to the Brand’s visual merchandising guidelines.
The Customer is to present consumers at all times a perfect candle: clean un-melted smooth wax (round paper covers are to be removed). Already burned candles can no longer be used for display. The Brand recommends to change testers every year to insure a perfect fragrance rendering.
All in-store advertising provided by TRUDON shall be used exclusively for the display and promotion of Products from the TRUDON brand.
In the event of infringement, TRUDON, as the owner of the equipment, reserves the right to reclaim it immediately.
ARTICLE 6 – INTERNET – MARKETPLACES
Once the Customer has been chosen as a selected retailer, it will be authorized to display and offer the Products for sale on a website that it owns. The website must meet the criteria stated in Article 2 above and, in particular, match the brand image of TRUDON’s Products. In this respect, the website’s graphic charter must be well thought out and the images of TRUDON’s Products must be those provided by TRUDON.
The environment surrounding the Products must be similar to that of the Customer’s physical shop. Consumers must have access to online advice.
The domain name of the Customer’s website must not contain the TRUDON brand or any other brand owned by TRUDON and must not harm the other members of the distribution network or TRUDON in any way.
TRUDON’s careful distribution strategy aims to preserve the luxury image/positioning of the Brand. This image cannot be guaranteed if the Retailer loses control. Therefore, it is strictly forbidden for our Customers to propose the TRUDON products on a marketplace (f.e.: Farfetch, Amazon) or to sell the TRUDON products to other retailers.
ARTICLE 7 – PRICES
The reseller price applies exclusively to professionals who resell the Products in shops, stores or hotels.
Prices may be changed at any time, subject to a period for entry into force of twenty (20) days. Prices are exclusive of VAT and exclude shipping.
The price invoiced to the Customer will be based on the price in force on the date of placing the order or on the delivery date requested by the Customer if this is after a new price has entered into force.
ARTICLE 8 – DELIVERY – SHIPPING
8.1 – Terms of delivery
Delivery shall be made Ex Works (Incoterms 2010 – our warehouse), unless otherwise specified in special provisions. The Customer shall therefore be responsible for the Products from the moment they are collected by the carrier chosen by it or by TRUDON. Delivery shall be carried out by simple notice of availability of the Products.
Deliveries shall be made based on availabilities and in order of arrival of the orders. TRUDON is authorized to make full or partial deliveries.
Any changes made to the order may delay delivery. In all cases, delivery shall only take place if the Customer is up to date with its obligations to TRUDON, regardless of the cause, such as any obligation to pay a sum of money. If the Customer is responsible for collection and fails to collect the Products by the agreed deadline, TRUDON may take all necessary steps to store the Products, at the Customer’s expense, or arrange for delivery following formal notice to collect the Products.
8.2 – Claims
TRUDON shall be responsible for the Products until delivery, as set out in Article 8.1 above. The Customer must check each order received and shall be responsible for expressing any reservations to the carrier regarding any damaged packing units or products, or any missing items noticed on receipt, and for confirming those reservations by extrajudicial document or by registered letter within three (3) days following receipt. The Customer must notify TRUDON of its reservations in writing within twenty-four (24) hours.
ARTICLE 9 – LATE DELIVERY
TRUDON shall not be held liable for late delivery related to (i) an event of force majeure as defined in Article 18 below, (ii) difficulty in obtaining supplies of raw material, (iii) the inability to manufacture products under normal conditions, (iv) abnormally large orders or (v) any other cause not attributable to the Seller.
Under no circumstances may any late deliveries result in cancellation of the order by the Customer and/or the application of lump-sum penalties which do not correspond to any actual loss suffered by the Customer.
ARTICLE 10 – CLAIMS
Without prejudice to the steps to be taken with the carrier as described in Article 8 above, any claims concerning apparent defects, the condition of products, non-compliance of the products delivered with the products ordered or with the packing slip, or the quantities delivered must be brought in writing within eight (8) days following delivery as set out in Article 8 above. It shall be the Customer’s responsibility to provide all justification regarding proof of the non-compliance, defects or irregularities found.
Beyond that period, no claims will be considered. The consideration of a claim shall in no way indicate its acceptance.
All claims, regardless of their subject or cause, must be accompanied by a photograph and a detailed description of the claim.
Irrespective of the subject of the Customer’s claim (late delivery, non-compliant or partial delivery, apparent defects, etc.), no penalties may be applied without the prior agreement of TRUDON. TRUDON will reject any application of lump-sum penalties which do not correspond to an actual loss.
Any automatic deduction of penalties from the amount of the invoices shall be punishable under the provisions of the Uniform Commercial Code (UCC).
The Customer shall waive its right to invoke the provisions of the Uniform Commercial Code (UCC).
ARTICLE 11 – RETURNS
All product returns are subject to the prior written agreement of TRUDON. Where a return has been accepted, the Products concerned must be returned undamaged and in their original packaging. The Customer may not use a product return as a pretext for refusing or postponing payment of invoices due to TRUDON.
TRUDON will not accept any returns of unsold Products.
ARTICLE 12 – GUARANTEES
12.1 – Scope
TRUDON guarantees the Customer that the Products delivered will be free from defects and will comply with the description provided in the catalogues.
TRUDON offers the end customer (consumer or business customer) no other guarantees than those provided for by the Uniform Commercial Code (UCC): the guarantee against latent defects and the legal guarantee of conformity.
In the event of application of the guarantee, TRUDON’s sole obligation shall be that of free replacement.
12.2 – Product rotation
The Customer shall follow the ‘First in, First Out’ rule. The Products and, in particular, the fragrances are likely to deteriorate over time, thus changing the properties of the candles.
12.3 – Exclusion
In all cases, defects and deterioration caused by normal wear or an external accident, negligence, abnormal storage conditions or misuse of the Product are excluded from all guarantees.
12.4 – Damages
In the event that TRUDON fails to fulfil its obligations, particularly that of delivery, its liability shall be strictly limited to its guarantee obligation thus defined. TRUDON shall not be required to pay any compensation, particularly for immaterial or indirect damage such as loss of profit, loss of use, loss of income and third-party claims.
ARTICLE 13 – PRODUCT RECALL
Subject to a refund of their price to the Customer, TRUDON reserves the right to recall the Products without having to pay any compensation to the Customer. The Customer shall be responsible for carrying out withdrawal orders for the Products in its distribution chain.
ARTICLE 14 – TERMS OF PAYMENT
14.1 – Payment deadlines
Unless otherwise agreed, invoices are payable upfront on issuance of a pro forma invoice. No discount will be granted for upfront or advance payment. For details, please see Attachment 1 to this agreement.
14.2 – General
Any sums not paid by the due date stated shall give rise, as of right and without prior formal notice, to the payment of lump-sum compensation of one hundred U.S. dollars ($100) for recovery costs per invoice in accordance with the Uniform Commercial Code, as well as the payment of a late penalty calculated by applying an interest rate equal to that of the Federal Reserve plus ten (10) percentage points to the sums due.
Such interest will accrue from the due date until payment. In the event of default, forty-eight (48) hours following formal notice remaining unanswered, the sale will be cancelled as of right by TRUDON, which may also suspend fulfilment of any current orders and require the Products to be returned, without prejudice to any other damages. Cancellation shall apply not only to the order in question but also to all previous unpaid orders, whether they have been delivered or are currently shipping, regardless of whether or not their payment is due. Under no circumstances may payments be suspended or give rise to any compensation without the prior written agreement of TRUDON.
ARTICLE 15 – RETENTION OF TITLE CLAUSE
TRUDON shall retain ownership of the Products delivered until actual payment in full of the price, fees and accessories. Defaulting on any one of the payments may give rise to a claim for all Products delivered to the Customer which are in stock on the Customer’s premises. Simply issuing a payment order generating an obligation to pay shall not constitute payment under this clause, and the debt owed to TRUDON by the Customer shall remain in force with all the attached guarantees, including the retention of ownership until said obligation to pay has been fulfilled. However, the Customer is authorized to resell the Products delivered within the context of its commercial activity. If the Products are resold, TRUDON’s property right shall be transferred to the debt owed to the Customer by the subsequent purchaser. The Customer may not pledge the Products or transfer ownership of them as collateral. Any extensions of payment deadlines granted shall be accompanied by the same retention of ownership. In the event of seizure or attempted seizure by a third party, the Customer undertakes to make the property right known and to notify TRUDON immediately. All expenses incurred in the implementation of this retention of title clause shall be borne solely by the Customer.
ARTICLE 16 – TRANSFER OF RISK
From the moment of delivery as set out in Article 8, the Customer shall assume the risks of loss or deterioration of the Products, as well as of any damage it might suffer.
ARTICLE 17 – INTELLECTUAL PROPERTY RIGHTS – PRODUCT CHARACTERISTICS – PROMOTION
The commercial relationship established between TRUDON and the Customer shall not confer on the Customer any rights to the brands, which it is authorised to use solely for the purposes of advertising and promoting the Products, without using them as loss-leaders. The Customer is prohibited from infringing, in any way whatsoever, the intellectual and industrial property rights held by TRUDON with regard to the brands and the Products themselves.
The Customer shall ensure that its commercial or promotional activities are compatible with the TRUDON brand image.
Any use of the TRUDON brand as part of advertising or promotional campaigns shall be subject to the prior written agreement of TRUDON.
ARTICLE 18 – FORCE MAJEURE
TRUDON and the Customer shall be released, by operation of law, from their obligations in the event of force majeure, as defined by the Uniform Commercial Code and case law, or in cases involving the following events (without needing to meet the definition criteria for force majeure and without this list being exhaustive): labor disputes, total or partial strike by TRUDON, carriers, post offices or public services, unavailability of raw materials or energy, breakdown of communication methods, mandatory injunctions from public authorities, operating incidents, breakdown of machinery, war, earthquakes, fire and bans on the use of products used in the making of the Products. TRUDON shall notify the Customer in a timely manner of the occurrence of any event preventing it from fulfilling its obligations.
ARTICLE 19 – UNFORESEEABLE CIRCUMSTANCES
Given that the relationship between TRUDON and the Customer is based on orders executed within a limited period by TRUDON, the Parties shall waive their right to apply the provisions of the Unifrom Commercial Code on unforeseeable circumstances, as no unforeseeable change in circumstances is likely to occur between the time of placing the order, delivery and payment.
ARTICLE 20 – APPLICABLE LAW – JURISDICTION
These General Terms and Conditions, as well as the Seller’s commercial relationship with the Customer and any contracts entered into between them, are subject to U.S. law to the exclusion of the Vienna Convention on the International Sale of Goods.
Any disputes which cannot be resolved amicably, whether pertaining to the contracts entered into or to the commercial relationship between the Parties, shall be submitted solely to the Delaware Court of Chancery, even in cases involving summary proceedings, multiple defendants or small claims court proceedings.