Grace de Monaco, LLC (“GDM”) Terms & Conditions of Sale

1.    Definitions

In these Terms the following definitions and rules of interpretation apply:

“Business” - the retail and wholesale businesses undertaken by GDM;

“Buyer” - the person or entity set out in an Order;

“Delivery Date” - the date for delivery of Products notified by GDM or its nominee to Buyer within the Delivery Window (as defined below);

Delivery Location” – the location for delivery of the Products as described in paragraph 5(b);

“Delivery Window” – the period communicated by GDM to the Buyer in which the Products within an Order will be available for collection and determined by the Order Window (as defined below);

“Deposit” - the full payment of 50% of the cost of an Order to be treated as a non- refundable deposit as referred to in paragraph 3(b)(i);

“Final Order Payment” - the remaining 50% payment for an Order, after payment of the Deposit, as referred to in paragraph 3(b)(ii);

“Order” – Buyer’s order for Products, as set out in the order form to which these Terms apply;

“Order Window” – the period communicated by GDM to the Buyer in which an Order must be placed and Deposit paid to ensure Products within an Order will be available in the corresponding Delivery Window;

“Products” - GDM’s products ordered by Buyer pursuant to an Order;

“Proprietary Marks” - the Trademarks and trade names (including the Trade Name) owned by GDM and/or any GDM group company (as applicable) in connection with the Products together with all logos, designs, symbols, emblems, insignia, fascia, slogans, copyrights, patents, know-how, information, drawings, plans and other identifying materials (whether or not registered or capable of registration) and all other proprietary rights or Rights whatsoever owned or available to GDM;

“Terms” - these terms and conditions of sale;

“Trademarks” – any trademarks owned, registered, or to be registered by GDM (e.g., “GRACE DE MONACO”) in any country throughout the world; and

“Trade Name” - the name Grace de Monaco (or any version thereof) under which the Business is carried on.

2.    Terms

Unless GDM shall specifically agree otherwise in writing (excluding email) all sales by GDM arising from acceptance of an Order are on and subject to these Terms. Any terms or conditions submitted, proposed or stipulated by Buyer in whatever form and at whatever time, whether written or oral, are expressly waived and excluded. These Terms constitute the entire agreement between the Buyer and GDM. In the event of conflict between the Order and these Terms, these Terms shall take precedence.

3. Acceptance of Order

(a) No Order shall be binding upon and shall not constitute acceptance by GDM until GDM and/or GDM’s nominee (as the case may be) has received the Deposit. GDM shall be under no obligation to accept an Order from Buyer. If GDM shall accept an Order, GDM shall be under no obligation to accept any other order from Buyer at any time in the future; and such acceptance is made on the basis that Buyer agrees that the trading between GDM and Buyer does not amount to an agency relationship. Notwithstanding acceptance of an Order, GDM reserves the right in its sole discretion to postpone delivery of Products and/or cancel an Order from Buyer without compensation in the event that any sums due to GDM from Buyer are in arrears including for previous Orders or other amounts owing to GDM.

• Buyer shall pay for the Products as follows:
  1. 50% by way of a non-refundable deposit (being the Deposit) on placing an Order which must be received by GDM in one of the corresponding Order Windows; and
  2. the remaining 50% (being the Final Order Payment) within the Delivery Window and no later than the Delivery Date, in the currency and manner as specified by GDM.

4.    Price

• Unless otherwise agreed in writing by GDM, the price for Products payable by Buyer will be as shown in the invoices at the Delivery Date plus tax (if applicable) at the rate prevailing on such Delivery Date.
• Prices quoted on an Order are subject to modification prior to delivery without notice and may also be subject to the addition of a currency exchange surcharge.
• Unless otherwise agreed in writing by GDM, Buyer shall at all times be responsible for all transport, handling and insurance costs from the Delivery Location, as defined below. The Buyer is responsible for these costs as per the EXW Incoterms unless otherwise agreed in writing by GDM.
• Buyer shall pay all amounts due in full under these Terms without withholding or deduction of or in respect of, any tax unless required by law. If any such withholding or deduction is required, Buyer shall, when making the payment to which the withholding or deduction relates, pay to GDM and/or its nominee, as the case may be, such additional amount as will ensure that GDM and/or its nominee, as the case may be, receives the same total amount that it would have received if no such withholding or deduction had been required. Further, Buyer shall not be entitled to assert any credit, set-off or counterclaim against GDM and/or any GDM group company as the case may be in order to justify withholding payment of any such amount in whole or in part. GDM and/or any GDM group company as is applicable may at any time, without limiting any other rights or remedies it may have, set-off any amount owing to it by Buyer against any amount payable by GDM and/or any GDM group company to Buyer if any.

5. Delivery

(a) Whether or not stated on the Order the time for delivery and the Delivery Date shall not be of the essence and the Delivery Date is intended as an estimate only.

(b) Once Buyer or its agent / nominee takes actual delivery of Products at such locations as advised by GDM (“Delivery Location”), GDM’s obligation to deliver shall be considered as completed. All risk of loss, breakage or damage whatsoever in Products or any part of them shall pass to Buyer as soon as Products leave the Delivery Location. Buyer shall comply with GDM’s reasonable instructions regarding delivery and transport of the Products. All transport and logistics costs shall be borne by Buyer as per EXW Incoterms unless otherwise agreed in writing by GDM.

• GDM reserves the right to make deliveries by instalment and to render a separate invoice in respect of each such instalment.
• Nothing in these Terms shall be construed or interpreted as GDM providing Products on consignment even in the event where title has not passed to Buyer.

6.    Specification

Products will be supplied substantially in accordance with the designs specified in the relevant Order. However, GDM reserves the right to make reasonable changes to the specification of Products at its discretion from time to time.

7.    Force Majeure

• If GDM is prevented from complying with any of its obligations under the Terms by reason of an act of God, insurrection, riot, war, hostilities, warlike operation, piracy, arrests, restraints of or detainment by any competent authority, national emergency, epidemic or pandemic, strikes or combinations or lockout of workmen, fire, floods, droughts, earthquakes, mechanical breakdown, shortage of, or inability to, obtain materials, equipment or transportation default or interference caused by others or any other circumstances (whether of a nature similar to those specified, or not) beyond the control of GDM and/or any GDM group company as the case may be regardless of whether or not the circumstances in question could have been foreseen at any time, the obligations of GDM shall be suspended whilst such prevention shall continue.
• Should any deliveries under an Order be suspended under this paragraph 7 then Buyer shall nevertheless accept delivery and pay for such Products as GDM shall be able to deliver. GDM shall not be liable for any loss or damage of any kind resulting from the causes mentioned in paragraph 7(a).

8.    Title

• Notwithstanding delivery, title in Products delivered by GDM shall pass to Buyer upon and only upon payment for such Products in full by Buyer and of all other sums owed by Buyer to GDM. Buyer will hold Products as bailee for GDM until such payment is received in cleared funds by GDM. GDM may attribute any sum paid by Buyer to any outstanding amount whatsoever due from Buyer to GDM in respect of any Products delivered to Buyer by GDM notwithstanding any indication by Buyer that these sums are paid in relation to specific Products.
• If Buyer (before payment) sells Products to a customer it shall, as between Buyer and such third party, sell as principal but as between Buyer and GDM, Buyer shall sell as the fiduciary agent of GDM.

9.   Interest and Administration Charges

The due date for payment of any Products delivered by GDM to Buyer shall be as set out in paragraph 3 unless otherwise stated on GDM’s invoice. GDM may charge for administration expenses and interest (at a rate of 1.5% above the prime rate as published from time to time by The Wall Street Journal per month (18% per annum)) as a result of payment conditions being broken.

10. Warranty

• To the extent permitted by law, all conditions, warranties or obligations, whether express or implied by statute, common law or otherwise on the part of GDM are excluded.
• Where GDM is arranging transport, GDM shall not be liable for loss of or damage to Products in transit.
• Buyer shall upon delivery of Products inspect such Products for any defects in the quality of Products and report such defects to GDM within 10 business days of receipt.
• No Products shall be returned to GDM until Buyer has submitted to GDM such evidence as GDM shall require (including, where requested, samples of the Products in a format and manner specified by GDM from time to time) and GDM has confirmed in writing (including in this case via electronic communication) that such Products should be returned. Products shall only be returned to GDM with a previously agreed returns reference. Any Products so returned shall be at Buyer’s risk until received by GDM and all costs for return shipping shall be borne by Buyer.
• GDM’s liability under paragraphs 10(b) and 10(c) whether based on negligence or any other cause of action shall be limited to repairing or replacing the lost, damaged or defective Products or, at GDM’s option, crediting a corresponding proportion of the price paid by Buyer, and GDM shall not be under any other liability thereunder whatsoever.
• GDM gives no warranty and makes no representation that any sale by Buyer of Products will be free from infringement of any intellectual property right owned or controlled by any third party.

11. Liability

• All descriptions, representations, specifications, samples, colours, illustrations and other particulars furnished or made orally by GDM or in catalogues, trade literature, price lists or other documents issued by GDM are given for general information purposes only and Buyer acknowledges that it is not making an Order in reliance upon any such description, representation, specification, sample or other particular.
• Except to the extent specifically provided for in these Terms and subject to paragraph 11(c):
• GDM shall not be liable for any loss, damage or injury however caused or arising (whether by negligence or otherwise) from any defect in, failure in, or unsuitability for any purpose of, Products;
• GDM shall not in any event be liable for any indirect or consequential loss whatever and however caused; and
• GDM’s total aggregate liability in respect of all claims, losses or damages, whether arising from tort (including negligence), breach of contract or otherwise under or in connection with these Terms shall in no event exceed the total cost of the relevant Order.
• Nothing in these Terms shall exclude or restrict liability for death or personal injury resulting from that party’s negligence or fraud.
• Buyer shall indemnify and save and hold GDM harmless from all and any liability, claim, cause of action, suit, damages, loss, cost, or expense (including legal fees and expenses) incurred and arising from any act, neglect or default of Buyer, its agents, employees, licensees or customers which GDM may become liable for, or may incur, or be compelled to pay, in connection with Buyer’s business or by virtue of any misrepresentation or breach of warranty or failure to perform or observe any covenant on Buyer’s part to be performed or observed hereunder.

12. Resale and Further Obligations on Buyer

• By placing an Order, Buyer acknowledges the importance to GDM of preserving the reputation of the brand and Proprietary Marks under which Products are offered for sale to consumers and the reputation of GDM as a supplier pursuant to its Business.
• Buyer agrees that the acceptance by GDM of an Order is made on the basis that Buyer shall not:
• hold itself out as agent or distributor; or
• resell or threaten to resell any Products supplied by way of wholesale.

(c) Buyer further agrees as follows:

• at all times to maintain the prestige and goodwill of GDM and the Proprietary Marks;
• without the express prior written consent of GDM, not to sell or distribute any Products in combination sales, as premiums or "give-aways”, or pursuant to other similar methods of merchandising (including "gift-with-purchase" and "purchase-with-purchase" programs), and will not sell or distribute any other item or product in connection with Products (any such other items or products being herein referred to as "Promotion Products”).
• not to sell any product which does not conform to or which conflicts with the standards associated with the Proprietary Marks;
• not to do or omit to do any act or thing which may in the sole opinion of GDM bring the Proprietary Marks into disrepute or which may in the sole opinion of GDM damage or conflict with the interests of GDM;
• not to claim that Products or any of them are made or designed for or in association with Buyer;
• not to use any trademarks or trade names resembling the Proprietary Marks or any them in such a manner as may be likely to cause confusion or deception;
• to keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to Buyer by GDM. Buyer shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging Buyer's obligations under these Terms, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind Buyer. This paragraph shall survive cancellation, completion or termination of an Order;
• upon request from GDM, to provide a report in a form satisfactory to it, indicating by month, the value of sales, the number and description of all Products sold, the retail invoice price of each such Product, and the amount of stock of Products (giving a description thereof) held by Buyer at the date of each report, such report to be delivered as aforesaid, whether or not any Products have been sold in the relevant month; and
• provide, at GDM’s request, copies of its up to date price lists and such sales aids, including catalogues, sales brochures and sales manuals, as relate to the Products;

13. General

• The headings of the paragraphs are inserted for convenience only and do not affect the construction of these Terms.
• The cancellation, completion or termination of an Order (for whatever reason) shall not terminate any of the Terms which is expressly or by implication provided to come into or continue in force after such event and shall be without prejudice to the accrued rights and liabilities and other remedies of GDM.
• No modification, alteration or waiver of any of the provisions of these Terms shall be effective unless evidenced in writing and signed by or on behalf of each of the parties.

14. Governing Law and Jurisdiction

• These Terms and the Order(s) has been entered into in the State of Delaware and will be construed by and interpreted in accordance with the laws of that State without regard to principles of conflict of laws.
• Each party irrevocably agrees that the State and Federal courts sitting in the State of Delaware have exclusive jurisdiction in any action arising out of or connected in any way with these Terms and the Orders; and it consents to personal jurisdiction of and venue in such courts in any such matter.
• This paragraph 14 shall survive cancellation, completion or termination of an Order.