WHOLESALE GENERAL TERMS AND CONDITIONS IM USA

Last updated on 12/07/2024

Article 1 PURPOSE AND SCOPE

These General Terms and Conditions (GTC) govern the sale by IM USA of its products to any buyer previously approved by IM USA (hereinafter referred to as the "Buyer") within IM USA’s selective distribution network.

The GTC apply, without any restrictions or reservations, to all product sales concluded with IM USA, no matter the Buyer's country of residence and the clauses that may appear in the Buyer's documents, including the latter's general terms and conditions of purchase, unless the Parties expressly agree otherwise in writing. They supersede IM USA's previous general terms and conditions, which may have governed previous relations between the Parties.

As such, any order of a product from IM USA implies total acceptance of the GTC. IM USA reserves the right to adapt or modify the GTC at any time and without prior notice; adaptations or modifications of which the Buyer has been notified in writing and which have not contested within twenty (20) days of their receipt are deemed to have been accepted.

Article 2 ORDERS

2.1 Definitions

The term Purchase Order refers to any written purchase order from the Buyer relating to the products sold by IM USA (2.2).

The term Order Confirmation refers to the express and written acceptance of the Buyer's order issued by IM USA. Each Order Confirmation shall specify the object and price of the order, the Incoterms, the payment terms, the expected delivery time, and any discount granted by IM USA (2.3).

2.2 Purchase Order submission

A Purchase Order may be submitted by the Buyer to IM USA:

• At a showroom event or on an electronic platform to which the Buyer will have access;
• Within a maximum period of seven (7) days following a showroom event, directly via IM USA's electronic ordering platform; or by contacting IM USA directly, who shall enter the order on its electronic platform. 
  

It is the Buyer's responsibility to check the accuracy of their order details, as they appear on the Purchase Order, and to immediately notify IM USA of any error that they may notice.

IM USA may ask the Buyer to specify the details of their order.

IM USA reserves the right to suspend, modify or refuse any order, in particular when the quantity of products requested by the Buyer is abnormally high compared to the quantity usually ordered, or when the products ordered are not put into production.

2.3 Order Confirmation

On receipt of the Purchase Order, IM USA will send an Order Confirmation to the Buyer.

The characteristics of the order as shown on the Order Confirmation shall be deemed to have been approved by the Buyer, and the order shall become final, if the Buyer does not express any reservations or disputes within two (2) business days following receipt of the Order Confirmation issued by IM USA.

2.4 Modification

A request from the Buyer to modify the order will only be considered by IM USA, at its sole discretion, if it is made in writing within two (2) business days following receipt of the Order Confirmation by the Buyer.

In any case, IM USA reserves the right to accept or refuse the modification of the order. 

The modification of the order, as approved by IM USA, shall be confirmed by the issuance of a new Order Confirmation, under the conditions referred to in the preceding Article 2.3.

2.5 Cancellation

2.5.1. Cancellation by the Buyer

The order may be cancelled, free of charge, by way of a written request from the Buyer within two (2) business days following receipt of the Order Confirmation by the Buyer.

In the event that the order is cancelled after the period of two (2) business days following receipt of the Order Confirmation has elapsed, the Buyer shall not be entitled to the return of the deposit paid in accordance with Article 9.2 or, in the event that no deposit has been paid, shall be liable to pay an amount equivalent to thirty percent (30%) of the amount of the order, unless the cancellation of the order by the Buyer is due to:

• a force majeure event (as defined in Article 13);
• a delay in delivery of the products ordered of more than thirty (30) days, unless the delay in delivery is itself justified by a suspension of deliveries due to late payment for a previous delivery on the part of the Buyer.

Any refusal to accept an order for delivery that is not justified by a delay in delivery of the products ordered of more than thirty (30) days (provided that this delay in delivery is not due to late payment for a previous delivery by the Buyer), will give rise to payment, by the Buyer, of the total price of the order.

2.5.2. Cancellation by IM USA

In any case, IM USA reserves the right to cancel any order that cannot be fulfilled due to, among other things, a shortage of materials, the cessation of activity of a material supplier, the defectiveness of the materials supplied and/or of the products, or a break in production. In this case, IM USA shall contactthe Buyer, by any means, in order to come to a joint agreement on the modification of the initial order.

IM USA may also cancel any current order in the event of late payment by the Buyer for more than thirty (30) days of a previous order in accordance with Article 9.4.

Article 3 DELIVERY

Delivery times are given as an estimate only, and are subject to the availability of carriers and the range in which orders are received. IM USA reserves the right to modify any delivery specification(s) in the Purchase Order or the order acceptance, after having informed the Buyer by any means, if delivery is not possible according to the conditions laid out in the Order Confirmation. 

Deliveries shall only be made subject to the availability of the products confirmed in the Order Confirmation and to the Buyer's financial guarantees. They may be comprehensive or staggered over the delivery period indicated. Deliveries shall be made in accordance with the Incoterms defined by IM USA.

In the event of a delay in delivery of more than thirty (30) days from the end of the delivery period indicated, and provided that this delay is not itself due to late payment for a previous delivery on the part of the Buyer, the Buyer may cancel the order (at no cost to either party) or accept a new delivery date without the right to claim any compensation or damages.

In any event, late delivery shall not give rise to any penalty or compensation. Penalty clauses appearing in commercial documents, including in the Buyer's general terms and conditions of purchase, are not enforceable against IM USA.

Article 4 RISKS AND TRANSPORT

4.1 Risks

The transfer of the risks relating to the products sold by IM USA shall be carried out in accordance with the Incoterms binding IM USA and the Buyer.

4.2 Transport

The transport terms and conditions are governed by the Incoterms. Even in the case of goods delivered with transport at IM USA's expense, it is the Buyer's responsibility to check whether the transport contract has been correctly executed and, if it has not, to take the necessary measures to retain their right to recourse against the carrier, namely:

• if any packages are missing or arrive damaged, or for any other issue: the Buyer must immediately and unequivocally establish the nature and extent of the damage upon receipt by noting theirconcerns on the delivery slip;
• the Buyer must notify the carrier of the dispute in accordance with the deadline and procedure established by the carrier’s policy, or otherwise risk losing the right to bring such claim.

In any event, a copy of the slip noting the concerns and the dispute sent to the carrier must be sent simultaneously to IM USA via this platform.

These two conditions are both absolutely necessary for the carrier to be held liable. In order to claim partial loss or damage, the Buyer must establish that it existed at the time of delivery of the products.

Any product that has not been the subject to the claims procedure in this Article 4.2 shall be deemed to have been accepted by the Buyer.

Article 5 RETURNS

IM USA does not accept returned goods. If, on an exceptional basis and subject to the prior written agreement of IM USA, which shall establish the terms and conditions, returns are accepted, the costs and risks associated with said returns shall remain the responsibility of the Buyer. Moreover, the Buyer must conform to the specifications shared by IM USA in order to carry out the accepted return.

Article 6 WARRANTY – CLAIMS

All goods are guaranteed against defects in materials and workmanship. The above warranty is made subject to Buyer's proper use of the goods for the purpose for which such goods were intended and Buyer's storage conditions. The warranty does not cover, and IM USA shall not be responsible for, any goods which (i) have been misused by Buyer (or any of its agents or employees), (ii) have been subject to unusual stress after delivery to Buyer’s carrier or warehouse (as the case may be); or (iii) have not been stored in accordance with instructions from IM USA.

Without prejudice to the measures to be taken by the Buyer with regard to the carrier, as described in Article 4, the Buyer is required to inspect the products without delay and to notify the carrier within eight (8) days of delivery or availability of the products (under penalty of preclusion), via this platform or via registered letter with acknowledgment of receipt to IM USA, of the defective nature of the products, providing all evidence of the defectiveness of the products and requesting their return.

If the return is accepted by IM USA, the latter shall notify the Buyer of a return number, which they must use to return the products to IM USA within ten (10) days of receipt. If IM USA's customer service approves the Buyer's complaint, an exchange or a credit shall be proposed; otherwise, the products shall be returned to the Buyer, at their expense, and the Buyer shall not be able to claim any compensation or cancel the order. The risks linked to the return of products unduly returned to IM USA are the responsibility of the Buyer.

A claim made by the Buyer according to the terms and conditions laid out in Article 4 and in this Article shall not give the Buyer the right to withhold payment for such goods.

Without prejudice to the warranties expressly given by IM USA herein, IM USA does not grant any other express or implicit warranties, and expressly excludes all warranties of sales, fitness for a particular purpose, and non-infringement of products, to the extent permitted by law.

Minor deviations in quality, color, shape, weight, design or characteristics that are usual in the trade or unavoidable for technical reasons cannot give rise to any claims under the warranty.

In the event of a latent defect affecting the products, the Buyer may return the products concerned to IM USA under the conditions described in this Article, after having sent any evidence of such a defect to IM USA and having received the prior written agreement of IM USA for the return of the products. It is expressly agreed that the warranty against hidden defects required of IM USA is, in any case, limited to the restitution of the net purchase price of the affected product(s) under the conditions referred to in Article 8, excluding any compensation for further damages.

Article 7 INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS

7.1 The trademarks "Isabel Marant", "Marant Etoile" and "Marant", as well as all the figurative or non figurative marks and more generally all the other marks, illustrations, images and logotypes appearing on the products sold by IM USA, as well as their accessories and packaging, whether registered or not, are and will remain the exclusive property of IM USA or of the companies of the group which IM USA belongs to.

7.2 Any total or partial reproduction, modification or use of these trademarks, illustrations, images and logotypes, for any reason and on any medium whatsoever, without the express prior agreement of IM USA, is strictly prohibited.

7.3 During the presentation of the new Isabel Marant, Marant Etoile and Marant collection (clothing, footwear, jewelry and accessories), the Buyer may take photographs, which must be reserved strictly for their personal use. The Buyer undertakes not to communicate the photographs they have taken to anyone other than their employees or associates who need to know about them, and who are bound by an obligation of confidentiality. The Buyer undertakes to ensure that their employees or associates respect this confidentiality.

In particular, the Buyer undertakes not to publicly distribute these photographs via social networks such as Facebook, Instagram, Twitter and Pinterest, or by any other means.

Article 8 PRICE LIST - PRICE

8.1 Price list

For each product collection, the purchase price of the products shall be made available to  the Buyer.

Only the prices indicated in the confirmation of order will be the prices applicable to the Buyer.

The price list may be amended at any time, after prior notice has been provided to the Buyer. Changes to the price list will automatically apply from the date indicated on the new price list.

8.2 Price

Unless otherwise indicated, prices are stated in USD, excluding taxes and any shipping costs.

8.3 Price reductions

The discounts, rebates and credits granted by IM USA are exclusively those indicated on its invoice.

Article 9 PAYMENT

9.1 Payment terms

Invoices or pro forma invoices are issued without discounts, and are payable solely by bank transfer or letter of credit on the date indicated on the invoice.

9.2 Deposit

A deposit of thirty percent (30%) of the total price of the order may be required when the order is confirmed. This deposit may be retained by IM USA in the event of cancellation of the order under the conditions referred to in Article 2.5.1 of the GTC.

9.3 Payment before delivery

IM USA may require the Buyer to pay the full price of their order before delivery of the ordered products if they do not or no longer provide sufficient financial guarantees, or if IM USA has serious or specific reasons to fear payment difficulties on the part of the Buyer on the order or delivery date, in particular if the Buyer is in receivership, undergoing safeguard proceedings or any equivalent proceedings, and/or has undergone a reduction of their COFACE Credit Score. A pro forma invoice shall be sent to the Buyer to inform them of the availability of the products ordered. The Buyer must pay the pro forma invoice within seven (7) days of it being sent. If payment is not made within the deadline, IM USA is entitled to reallocate the products to be sent to the Buyer without the latter being able to claim any compensation in the event that these products are no longer available at the time of late payment by the Buyer.

9.4 Payment default

Notwithstanding IM USA's right to suspend any delivery that is upcoming and/or in progress in the event of non-payment in full of an invoice that is due, after formal notice has remained without effect for fortyeight (48) hours, the Buyer's failure to pay on the due date indicated on any invoice (including pro forma invoices) shall automatically entail:

• immediate payment of all outstanding sums, even if they have given rise to bills of exchange;
• the payment by the Buyer of a late payment penalty, which is calculated on the total (excluding taxes) of all outstanding sums, at the prevailing prime rate, plus ten (10) percent, but not higher than the applicable usury rate, without the need for a reminder;
• payment by the Buyer of a late payment fee of forty USD ($40) per invoice, in addition to any other damages, legal costs and expenses that may be claimed by way of the courts;
• IM USA being entitled to exceed the delivery window of any order in progress, and to reallocate the products to be sent to the Buyer without the latter being able to claim any compensation in the event that these products are no longer available at the time of late payment by the Buyer;
• in the case of failure to pay within thirty (30) days of the due date of the invoice, IM USA being entitled to exercise its right of cancellation in accordance with Article 2 of the GTC. In this case, the deposit paid by the Buyer shall be retained by IM USA as damages and not as a penalty.
  

9.5 Order refusal

If the Buyer places an order with IM USA without having paid for any previous order(s), IM USA shall have the right to refuse to fulfil the order and deliver the goods in question, without the Buyer being able to claim any compensation for any reason.

Article 10 TERMINATION CLAUSE

Without prejudice to any other rights or actions, IM USA reserves the right to terminate its commercial relations with the Buyer, without prior formal notice and by way of a simple notification, in the event of a breach by the Buyer, whether voluntary or involuntary, of one of their obligations arising from the GTC, as well as in the following cases:

• If the Buyer fails to pay on due date any sum owed to IM USA or to any third party that IM USA has entrusted with financing or securing its receivables with regard to the Buyer, the third party having subrogated or assumed the rights of IM USA, or in the event that a bill of exchange is contested.
• The death, physical or mental incapacity, or disappearance of the Buyer, if the Buyer is a natural person, or the death or physical or mental incapacity of the company director, if the Buyer is a legal entity.
• The cessation of business, voluntary liquidation, or dissolution of the Buyer.
• If the Buyer undertakes an activity likely to affect the commercial reputation, the intellectual property rights, or the brand image of IM USA and/or the Isabel Marant brands.

Commercial relations may be terminated immediately if the Buyer repeats a breach of contract that has already given rise to formal notice.

Article 11 REMEDIES IN CASE OF BUYER’S BREACH OR DEFAULT

11.1 Remedies

In the event of a default or breach by the Buyer, IM USA shall have all rights and remedies available to a seller under Article 2 of the New York Uniform Commercial Code, including without prejudice to any other right or remedy available under applicable law, the right to cancel any order, terminate any commercial relationship with the Buyer without any further obligation or liability and/or retain any Buyer deposit as liquidated damages and not as a penalty.

11.2 Additional Remedies

Upon the occurrence of any such default or breach, and in the absence of commercially acceptable evidence from Buyer that it intends to remedy such breach and/or perform its obligations and duties, IM USA further reserves the right to reject any Purchase Order or to suspend all present and future deliveries of pending orders, including with respect to products in transit. IM USA may, without notice to Buyer, resell the products ordered by Buyer or the undelivered balance thereof, retain the proceeds of such sale and recover from Buyer the difference between the resale price and the Purchase Order price.

In addition, IM USA shall have the right to take an inventory of the products in Buyer's possession or to require an inventory to be prepared and to repossess such goods, to the extent permissible under applicable law. The Buyer hereby agrees to allow IM USA full and unrestricted access to its premises, shops, warehouses and other locations for this purpose, to the extent permissible by applicable law.

Upon any such repossession, IM USA shall have the right to re-sell the goods.

11.3 Custody of products

Upon the occurrence of any such event of default or breach, any and all cash or other monetary instrument paid, payable or otherwise to be received upon the sale of the products shall, when received by the Buyer, be received in trust for the benefit of IM USA, be segregated from the other property or funds of the Buyer and be forthwith delivered to IM USA in the same form as so received (with any necessary endorsement), to the extent permissible under applicable law.

Article 12 RETENTION OF TITLE

12.1 IM USA will retain title to goods until the Buyer has paid the purchase price in full, together with all related costs and expenses, notwithstanding that payment terms may have been granted. Any clause to contrary effect, in particular in the general terms and conditions of purchase, shall be null and void.

12.2 It is expressly agreed that IM USA can enforce its rights under this Retention of Title Clause against all goods in the Buyer's possession in respect of any monies owed or deemed to be due and payable and IM USA shall have the right to seize such goods or to recover them in satisfaction of all outstanding invoices, without prejudice to its right to cancel any outstanding orders.

12.3 The Buyer may only resell goods which have not been paid for in the ordinary course of business, and shall not under no circumstances use their unpaid stock as security or collateral. In case of default of payment, the Buyer shall be prohibited from reselling the stock corresponding to the quantity of unpaid products.

12.4 After sending a formal notice, IM USA may unilaterally draw up or have drawn up an inventory of its products in the Buyer's possession, who shall undertake, from that point, to allow free access to their premises, shops, warehouses or other facilities for this purpose, ensuring that IM USA's products are always identifiable.

12.5 IM USA reserves the right to reclaim the goods in stock in the event of non-payment of an invoice on the due date, in the event that the Buyer is the subject of collective proceedings.

12.6 The Buyer is considered the custodian and guardian of the products from the time of delivery.

12.7 In the event of non-payment for the products, and unless IM USA prefers to request the full and complete execution of the sale, IM USA reserves the right to terminate the sale after formal notice and to reclaim the products delivered. In this case, the return costs shall be the responsibility of the Buyer, and the payments made shall be retained by IM USA as a penalty.

Article 13 FORCE MAJEURE

If a force majeure event prevents the delivery of the products within the original estimated deadline, IM USA shall give the Buyer written notice thereof, to be sent for example, by fax or email, within twentyfour (24) hours of the date of the occurrence of the events, and the contract binding IM USA and the Buyer shall be deemed to have been suspended with effect from the date on which such event occurred without any form of compensation.

For purposes of the GTC, "force majeure" shall mean any event caused by or resulting from any cause beyond a party's control including, but not limited to, fire, hurricane, storm, flood, earthquake, explosion, war, riot, rebellion, insurrection, quarantine, pandemic, act of God, strike, labor dispute or lock out, port congestion, boycott, embargo, shortage or unavailability of supplies, or governmental law, regulation, order or edict which in any way prevents either party from performing its obligations under these GTC.

Article 14 ECONOMIC DEPENDENCE

The Buyer acknowledges that they are independent of IM USA and that, as such, they are solely responsible for their management. The Buyer therefore undertakes, throughout the duration of their commercial relations with IM USA, to ensure sufficient diversification of their suppliers. The Supplier therefore cannot blame IM USA for allowing any situation of economic dependence to arise; however, it must, in any event, inform IM USA if this situation should arise.

The Buyer acknowledges that, for the entire duration of their commercial relationship, they are solely responsible for any insufficient diversification in terms of their suppliers.

Article 15 SEVERABILITY

If one or more of the provisions of these GTC is deemed to be invalid or illegal, such invalidity will not affect the other stipulations, which shall continue to have full and complete effect.

Article 16 MISCELLANEOUS

Any document other than those that constitute the GTC (apart from IM USA's selective distribution charter) including, but not limited to, any images and photographs accompanying the product descriptions communicated in the catalogue or in the IM USA showroom, are provided for illustrative purposes and are not binding in nature. IM USA is entitled to make any changes it deems necessary.

Article 17 APPLICABLE LAW AND JURISDICTION

The GTC are governed by the laws of the State of New York.

The present GTC exclude any application of the Vienna Convention of April 11, 1980 relating to international sales to relations between IM USA and the Buyer.

Any dispute arising from the interpretation, application, execution or non-execution of these GTC and its consequences shall fall under the exclusive jurisdiction of the federal and state courts located in New York City (USA).