PREAMBLE
ZILLI is a prestigious fashion house of luxury goods and fashion styles created in 1965.
ZILLI is well known for the high quality of its ready-to-wear products, designed and manufactured principally for men, marketed under the ZILLI brand-name and for high-quality accessories such as footwear, travel items for men and women, perfumes, glasses, leatherwear, jewelry etc.
The present general terms and conditions of sale (the "GTC") govern the contractual relations between ZILLI, a limited liability company with a capital of 1,000 euros, identified under the number RCS 908.785.314 of the Lyon Trade and Companies Register, whose registered office is located at 12 Chemin des Gorges, Dardilly (69570), represented by its President, domiciled in this capacity at the said office, acting under the trade name ZILLI ("ZILLI") and any professional buyer (the "Buyer") wishing to place an order (hereinafter the " Order") for ZILLI ready-to-wear products (the "Product(s)") on ZILLI BtoB website, “Le New Black LBN” (the "Site") and/or directly at ZILLI's premises, during the “show room” periods organised by ZILLI (hereafter the “Show Room”) .
The Seller and the Buyer are referred to individually as the "Party" or jointly as the "Parties".
- CONTRACTUALLY BINDING DOCUMENTS
These GTC define the legal, financial, commercial and technical terms and conditions applicable to the Order and the delivery of the Products.
The Parties may negotiate and agree on specific terms and conditions of purchase (hereinafter referred to as "Specific Terms ") which may supplement the General Terms and Conditions of Sale (the "GTC"). The purpose of the Specific Conditions is to specify the terms of delivery of the Products and/or to supplement certain general provisions of the GTC that apply to a specific Order.
The relationship between the parties is governed by the contractual documents listed below in the following descending order of priority:
(i) The order form and its annexes;
(ii) Any Specific Term agreed by the Parties;
(iii) The present GTC.
In the event of a contradiction between the GTC and the Specific Terms, the Specific Terms shall prevail.
The contractual documents listed above constitute the final and complete expression of the Parties' agreement (hereinafter the "Agreement"). They replace and supersede all prior representations, negotiations, undertakings, oral or written communications, approvals, understandings, agreements or any other documents entered into between the Parties, having the same object.
2. CONDITIONS OF PERFORMANCE
2.1. Conditions for placing an Order
2.1.1. Placing an Order by the Buyer
The placing of an order by the Buyer is subject to:
(i) The opening of an account by the Buyer on the Site. To this end, the Buyer shall choose an identifier and a confidential password as well as fill in an identification form on which he/she shall indicate all the information requested by ZILLI (in particular : company name, shop name, postal address, e-mail address, telephone number and name of the shop owner and the Buyer, trade register number and intra-community VAT number) and communicate any proof of its professional status or any other element relating to its commercial activity. ZILLI shall proceed with the verification of the elements communicated by the Buyer and reserves the right not to validate his account opening and/or not to accept his Orders if the information concerning the Buyer proves to be inaccurate or incomplete;
(ii) The acceptance without reserve of the present GTC, of which the Buyer declares and acknowledges to have taken knowledge. The fact of placing an order with ZILLI implies the full and entire acceptance by the Buyer of the GTC, possibly amended by the provisions of the Buyer Order or of the Specific Terms agreed between the Parties.
It is hereby specified that no contrary provision (conditions of purchase, etc.) unilaterally established by the Buyer can be opposed to ZILLI if it has not been previously and expressly accepted by the latter.
These GTC may be modified at any time by ZILLI, it being understood that any possible modification will be brought to the Buyer's attention at the time of placing his or her next Order on the Site. They shall not apply to Orders in progress.
2.1.2. Order Confirmation
To place an Order, the Buyer shall:
(i) Complete the online purchase order form by selecting the Products on the Site (the "Order Form");
(ii) Confirm the Order after checking it.
ZILLI will communicate, without delay and by e-mail (via the email address customer.servicexxxx@zilli.fr) to the Buyer, a written confirmation that his Order is registered. To this end, the Buyer formally accepts the use of electronic mail for the recapitulation by ZILLI of the content of his Order.
The Order shall be final only after receipt by the Buyer of the written confirmation of his Order, duly approved without alteration or modification and bearing the signature of ZILLI ("Order Confirmation").
2.1.3. Cancellation - Modification of the Order
(a) Cancellation / modification of the Order by the Buyer
ZILLI accepts the cancellation or modification of an Order electronically, free of charge, within eight (8) working days from the date of the Order Confirmation.
After this period, the Order shall be deemed to be firm and irrevocable ("Order Validation") and the amount of the deposit to be paid shall be calculated on the basis of this Order total value in accordance with the provisions of Clause 3.3.1 below.
No partial or total cancellation by the Buyer will be accepted after the Order Validation date.
(b) Cancellation / modification of the Order by ZILLI
If ZILLI is not able to ensure the delivery of the Products under the conditions initially agreed between the Parties, except if this impossibility is caused by a case of Force Majeure, it may:
(i) Cancel and/or modify the Order in whole or in part, without charge or compensation to the Buyer, within thirty (30) days following the end of a Show Room and shall refund, where applicable, payments corresponding to the cancelled and/or modified part of the Order already made by the Buyer, by way of compensation from future payments by the Buyer.
(ii) In any case, to offer the Buyer a similar Product likely to meet the Buyer's needs, as far as possible. In this case, if the price of the new Products is lower than the one initially planned, ZILLI will reimburse the Buyer the amount invoiced in excess. The Buyer shall remain free to accept or refuse ZILLI's alternative proposal, provided that the Buyer's refusal shall result in the cancellation of the Order without any additional costs for the Buyer.
2.2. Delivery / Transport
The respective responsibilities of ZILLI and the Buyer are defined in accordance with the Incoterm "Ex Works" of the International Chamber of Commerce.
ZILLI's responsibility ceases here upon delivery of the Products to the carrier designated by the Buyer. The Buyer shall bear the sole responsibility for the risks related to the Products, including those of the transport, since the departure of the Products from ZILLI's premises, as well as for any costs, including possible customs duties. The delivery note delivered to the carrier shall constitute the proof of delivery.
2.3. Delivery dates for Products
The delivery dates are those mentioned in the Order Confirmation sent by ZILLI. The fact that ZILLI does not deliver on the scheduled date does not give the right to any compensation whatsoever. In case of late delivery, no total or partial cancellation of the Order will be accepted by ZILLI.
2.4. Force majeure
In case, as a result of an event of force majeure, ZILLI would not be able to execute the Order in whole or in part, in particular in case of non-delivery by a supplier of raw materials, the Buyer will not be able to invoke ZILLI's responsibility and the sale will be cancelled by right.
2.5. Claims
The Buyer's complaints can only be accepted if they are made in writing within eight (8) working days following the date of delivery of the Products. Under no circumstances may the Buyer return Products without prior written authorization from ZILLI. If the complaint is justified, the return will be the object of an exchange or, in case of impossibility, of a credit note. In this case, the return costs will be refunded by ZILLI.
After this period of eight (8) working days following the date of delivery of the Products,
(i) No claims will be accepted, it being mutually agreed that this is sufficient for the control of the Products delivered;
(ii) The absence of refusal of the Products by the Buyer shall constitute acceptance by the Buyer;
(iii) The delivered Products will not be returned or exchanged, nor will they entitle the Buyer to any compensation.
3. INVOICING AND PAYMENT CONDITIONS
3.1. Prices
The Products are supplied at the prices in force on the day the Order is placed, the Buyer declaring that he/she has taken note of the prices appearing on the Site and/or the price list provided by ZILLI before entering into the Agreement and accepts them in accordance with the conditions defined in the Order (the "Price").
Prices are exclusive of tax, ex works, in accordance with the conditions defined at the time of the order. Shipping costs and customs duties are the sole responsibility of the Buyer.
3.2. Invoicing
Invoices shall be sent to the Buyer's address on the Order Form.
If the Products are returned and/or replaced, ZILLI will send the Buyer a credit note and a new invoice for the replaced Products.
3.3. Terms of payment
3.3.1. Payment of the deposit
The Buyer shall pay ZILLI a deposit of 30% of the total value of the Order indicated on the Order Form, in the form of a bank transfer, within fifteen (15) days from the Order Validation Date.
ZILLI shall only put the Buyer's Order into production after receipt of the requested deposit.
3.3.2. Full payment of the Order
The remaining price corresponding to the total value of the Order indicated on the Order Form shall be paid, in the form of a bank transfer, at the latest before the date of availability of the Products at Zilli's premises and on the basis of the invoice issued by ZILLI.
Failure to pay on the due dates set out in Article 3.3.1 and 3.3.2 will result in:
(i) The immediate payment, by operation of law and without formal notice, of all outstanding sums due, whatever the method of payment provided for;
(ii) The automatic payment of late payment interest calculated from the first day following the due date of the invoice, by applying interest equal to three (3) times the legal interest rate to the total amount due, as well as a fixed indemnity of forty (40) euros for collection costs.
In case of late payment, ZILLI reserves the right to suspend its deliveries until the complete payment of the outstanding invoices and may refuse any new order.
4. RETENTION OF TITLE
ZILLI reserves the ownership of the delivered Products until the full payment of the Order Price as specified under Article 3.3.2, in principal and interest. Interest shall be deducted as soon as the payment period granted to the Buyer is exceeded. Products in stock with the Buyer shall be deemed to be those still unpaid. In case of seizure by third parties on these Products, the Buyer shall immediately inform ZILLI.
5. OBLIGATIONS OF ZILLI
ZILLI represents and warrants to the Buyer that:
- It has full power, authority, right and license to carry out the manufacture, design and/or delivery of the Goods in respect of an Order Form;
- The manufacture, design and/or delivery of the Products will be carried out with care, diligence and professionalism in accordance with the highest applicable standards and best practices in the ZILLI industry;
- The manufacture, design and/or delivery of the products will be carried out in accordance with the specifications set out in the Order Form;
- The manufacture, design and/or delivery of the Products are free from any design defect (material and manufacturing) or malfunction, whether hidden or apparent;
- That it undertakes to inform, advise and warn the Buyer about any order issued by communicating to it in writing all the elements which, to its knowledge, seem likely to compromise the delivery of the Products under the agreed conditions.
6. Confidentiality, intellectual property
6.1. Confidentiality
Confidential Information shall mean any information (i) belonging to one Party and received from the other Party, including but not limited to, all business, financial and technical information, know-how, ideas, concepts, trade secrets, research and development plans and results, business methods, customer, sales and marketing plans and data, and any other information which by reason of its character or nature would appear to a reasonable person in the same circumstances to be confidential and/or competitive, regardless of whether such information has been explicitly marked as confidential; and/or (ii) communicated by one Party to the other Party, described as confidential, in writing or orally, at the time of its disclosure.
Each Party undertakes, throughout the term of this Agreement and without limitation after its expiry, to the most complete confidentiality relating to the Confidential Information mentioned in this Article and relating to contractual products and all information provided as confidential or to which it may have access in the context of executing this Agreement in so far as the said information has not already fallen within the public domain.
Each Party undertakes to respect its obligations regarding the Confidential Information received from the other Party; specifically, not to communicate, transfer, in whole or in part, any Information to third parties, (i) without the prior written agreement of the Party which owns the Confidential Information and (ii) unless it is required to disclose the Information by court order, on request of a governmental, administrative or social authority, by applicable law or regulation.
The Buyer undertakes to ensure that this obligation of confidentiality is respected by all the members of staff concerned, for which he shall be liable to ZILLI.
6.2. Trademarks and intellectual property
“Intellectual Property Rights” shall mean patents, utility models, rights to inventions, copyright and related rights, trademarks, service marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, moral rights, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets), and any other intellectual property rights of any sort, in each case whether or not registered or capable of registration and including all applications (or rights to apply) for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
“Trademarks” shall mean (i) the well-known Brand Name “ZILLI”, (ii) ZILLI’s registered trademarks and (iii) the non-registered or signs along with the related logos and graphics used by ZILLI in the course of its business activity.
6.2.1. Use of trademarks and intellectual property rights
During the term and for the purposes of the Agreement concluded between the Parties, the Buyer shall have the right to use the Trademarks and other Intellectual Property Rights held by ZILLI, only in the territory and for the limited purpose of selling the Products ordered in the purchase order.
Buyer acknowledges and agrees that it does not and will not acquire any rights in the Trademarks and other Intellectual Property Rights owned by ZILLI, or in the Products and ZILLI's trade and business name by virtue of the performance of its obligations under this Agreement.
The Buyer undertakes to use the Trademarks and Intellectual Property rights without creating confusion between ZILLI and himself as an independent trader, assuming the responsibilities of his own exploitation.
Any other use by the Buyer of the Trademarks and Intellectual property rights held by ZILLI in relation to the Products and ZILLI's trademarks shall be subject to the prior written approval of ZILLI.
In general, the Buyer shall refrain from any conduct, action or behaviour which may affect or infringe the Trademarks or Intellectual Property Rights held by ZILLI and relating to the Products and ZILLI's trade and business names or their reputation and shall not modify, remove or alter in any way the Trademarks, Intellectual Property Rights and names, designs, logos, slogans affixed to the Products or to the packaging or presentation thereof.
6.2.2. Registration of trademarks or intellectual property rights of ZILLI
The Buyer acknowledges that any registration including the name "ZILLI" may only be registered by ZILLI.
In this regard, the Buyer shall not use or seek to file or register any trademark, trade name, service mark, design, patent, copyright, company name, e-mail address or domain name with any trademark office, registry, administrative agency or other entity anywhere in the world that is identical or confusingly similar to, or infringes upon, any trademark, other intellectual property right, trade name, company name or domain name.
6.2.3. Infringement or unauthorised use by a third party
The Buyer undertakes to inform ZILLI immediately in case of imitation, counterfeiting or unfair competition and more generally of any fact or act likely to infringe ZILLI's rights and interests in respect of the trademarks and intellectual property rights and/or the Products in order to enable it to take the appropriate legal action. The Buyer also undertakes to cooperate closely, at ZILLI's request, with any legal action taken by ZILLI.
ZILLI shall have the right, but not the obligation, to take such action as it deems appropriate in the event of any infringement or misuse of its rights, and the sole right to instruct, manage and control any legal proceedings relating thereto. Buyer shall provide ZILLI with all assistance it may reasonably request in connection with such infringement or misuse and ZILLI shall reimburse Buyer for all reasonable costs incurred in providing the assistance requested by ZILLI.
6.3. Non-counterfeiting guarantees
ZILLI warrants to the Buyer that it holds all Intellectual Property Rights, copyrights, image rights and other rights to the documents and elements, in whatever form, incorporated in the delivery of the Products under an Order.
To this end, ZILLI guarantees the Buyer against any action (in particular in the case of an action in warranty of non-infringement), claim, challenge or objection from any person invoking an Intellectual Property Right that would have been infringed as a result of the delivery of the Products. He shall also provide any information, document or assistance necessary for such defence. It shall settle the amounts required directly with the author of the claim by virtue of a court decision and shall guarantee the Buyer against any sentence that may be pronounced on this occasion.
6.4. Advertising
The Buyer is prohibited from using the Trademarks, trade names or logos belonging to ZILLI for advertising or promotional purposes, in all press publications, social networks, and all other physical or digital media, without the latter's prior written consent.
7. LIABILITY - INSURANCE
7.1. Responsibility
ZILLI shall carry out, under its sole responsibility, the manufacture, design and/or delivery of the Products which are the subject of the Purchase Order.
ZILLI shall not be held liable if the non-performance or the bad execution of the Agreement concluded between the Parties is attributable to the Buyer or in case of force majeure. In any case, ZILLI's liability for the manufacture, design and/or delivery of the Products shall not exceed the amount of the sums paid by the Buyer during the last 12 (twelve) months, this amount constituting the compensation ceiling for all damages and causes combined.
The Buyer undertakes to take out and maintain, for the duration of the Agreement between the Parties, at least the following insurance policy(ies) with a solvent insurance company:
- Civil liability insurance and other necessary policies and guaranteeing, under the terms and conditions of the said policy, the pecuniary consequences of its professional civil liability, for any bodily injury, material damage, consequential or non-consequential immaterial damage that the Buyer could cause to ZILLI or to third parties in the execution of this Agreement.
- Any insurance policy covering all risks and in particular the risks of loss or deterioration of the Products during transport.
Upon simple request from ZILLI, the Buyer shall send it a certificate certifying the existence of the aforementioned insurance policies, and mentioning in particular the various guarantees acquired and the associated amounts.
8. TERMINATION
In the event of a breach by one of the Parties of any of its obligations, which is not remedied within a maximum period of thirty (30) calendar days from receipt of the registered letter with acknowledgement of receipt notifying the other Party of the breach, the latter shall be entitled to terminate the Agreement by giving ten (10) days' notice from receipt of the notification of termination by registered letter with acknowledgement of receipt, without any judicial formality, and without prejudice to any damages that may be claimed.
The Buyer undertakes to inform ZILLI in writing of any change of control affecting it.
In the event of termination of the Agreement, it is expressly agreed that, for whatever reason, the Buyer shall immediately cease its activities:
- Sale of Products ;
- Any use of the trademarks and intellectual property rights of ZILLI and consequently undertakes to remove all the distinctive signs relating thereto and to provide them to ZILLI without cost or compensation for the latter or by providing proof of the definitive destruction.
In the event that the Buyer does not comply with its obligations under this clause, a penalty of one thousand euros (€1,000) per day of delay shall be due to ZILLI thirty (30) days after a formal notice sent to the Buyer by registered letter with acknowledgement of receipt has remained without effect.
9. SUBCONTRACTING AND TRANSFER
9.1. Transfer
This Agreement is concluded intuitu personae, in the person of the Buyer.
The Buyer may not transfer or assign all or part of the obligations or responsibilities attached to an Order or substitute itself for a third party without the prior and express consent of ZILLI.
Nevertheless, ZILLI is already authorised to assign all or part of a Purchase Order to any Affiliated Company.
10. PROTECTION OF PERSONAL DATA
It is the responsibility of each of the Parties to comply with the applicable legislation on the protection of personal data and in particular with the French Data Protection Act n°78-17 of 6 January 1978 and Regulation (EU) 2016/679 of 27 April 2016.
11. COMPLIANCE AND ETHICS
ZILLI undertakes to respect and comply in all respects with all applicable laws, regulations, rules and codes of conduct applicable to ZILLI, including, but not limited to, those relating to anti-bribery, money laundering and corruption, health and safety, copyright and other intellectual property rights, anti-discrimination, child labour, environmental protection and human rights.
ZILLI acts in accordance with the highest professional, ethical and social responsibility standards.
ZILLI is committed to the general principles set out in the United Nations Global Compact.
12. GENERAL PROVISIONS
12.1. Relationship between the Parties
The Parties expressly declare that they are and will remain for the duration of this Agreement independent business and professional partners, each assuming the risks of its own operations and in particular its own liabilities.
It is understood between the parties that ZILLI's relationship with the Buyer is not exclusive and that, consequently, ZILLI has the possibility to diversify its own customer base.
12.2. Good faith and loyalty
The Buyer undertakes to behave towards ZILLI as an honest partner in good faith and in particular to inform ZILLI as soon as possible of any problems or disputes that it may encounter in the context of this Agreement.
12.3. Interpretation and partial invalidity
If any provision of the GTC is found to be invalid or in violation of any provision of public policy, such provision shall be deemed to be unwritten and all other provisions of the GTC shall remain in force. Invalid or unenforceable provisions shall be automatically amended and replaced by provisions that correspond to the purpose of such provisions.
12.4. Electronic signature
These GTC are deemed to have been accepted when the Buyer signs the Order Form electronically. The Parties acknowledge that this electronic signature has the same value as a handwritten signature.
13. APPLICABLE LAW - JURISDICTION
These GTC are governed and interpreted in accordance with the provisions of French law. For reasons of convenience, an English translation has been drafted. However, in the event of a dispute, only the French version shall be deemed authentic.
In the event of a dispute concerning the conclusion, execution and interpretation of these GTC, the Parties shall make their best efforts by meeting, by any means, to attempt to resolve the dispute amicably within thirty (30) days. If no agreement is reached within the aforementioned thirty (30) day period, the parties may take legal action.
Any dispute relating to the conclusion, performance and interpretation of these GTCs that is not resolved amicably within thirty (30) days between the Parties shall be submitted to the competent courts of Lyon (France).