GCS(A)

These administrative general conditions of sale (“AGCS”) are applicable:

• To sales made in ‘France métropolitaine’ (mainland France including Corsica) and Monaco
• from 1st January 2021
• with ‘GMS’ clients (“the Client”) who are defined as large and medium-size retailers, both food and non-food:
  • engaged in the resale of Products principally within physical outlets,
  • which may have a central negotiation hub, a national brand and outlets across the whole French national territory
• by one of the following companies or in the name of or on behalf of one of these companies (“the Company”): FDG GROUP, CHIC&PLUS, HARMONY JOUET and MIRO Distribution
• of products falling into the following categories (“the Product”):
  • Haberdashery / Knitwear
  • DPH (‘droguerie, parfumerie, hygiène’ including Haircare / Beauty / Over-The-Counter Pharmacy / Oral-Dental / Cosmetics)
  • Kitchen Implements
  • DIY
  • Cleaning Products
  • Stationery
  • Toys and Outdoor Toys
  • all other categories of non-food products listed in the current annual business plan
• under brand names which the Company owns or which it distributes.

The articles and provisions specific to each category are expressly identified below by underlining and are specified in each “category annexe”.

These GCS(A) revoke and replace all those previously distributed.

1.1 The GCS(A) (conditions, annexes) should be read as forming an indivisible whole with the tariff conditions of the Company and constitute the sole basis of commercial negotiations. All orders given to the Company indicate acceptance of these GCS(A), and expressly exclude the Client’s general conditions of purchasing and of any document emanating from the Client which has not previously been negotiated and approved by the Company.

1.2 The GCS(A) are applicable to every order for Products.

1.3 No conflicting provision may be relied upon against the Company unless it has been expressly accepted by the Company following effective and balanced negotiations.

1.4 The Company is unable to accept the granting of benefits that do not correspond to a commercial service rendered or which are manifestly disproportionate to the value of the service rendered, such as a request for its terms to be aligned with commercial terms obtained by other clients.

2.1 The ordering (and/or pre-ordering) process depends whether it is an order for seasonal Products, events Products or normal stock Products, under the specific terms applicable to each category.

2.2 No order is to be considered accepted until it has been confirmed in writing by the Company. In the absence of confirmation, delivery will constitute acceptance of the order. Partial dispatch will constitute partial acceptance of the order. Acceptance, even in writing, remains subject to the condition that, until delivery to the Client of all or part of the order, no financial risk or other fact casting doubt on the Client’s solvency shall have emerged.

2.3 The Company reserves the right to specify the quantities made available in certain specific product lines, in particular because of manufacturing constraints and/or supplies of raw materials.

2.4 Any request for a change or cancellation of an order for warehouse delivery can be taken into account only if it reaches the Company in writing within forty-eight (48) hours of the initial order. The date when a document written by a client was received and the date mentioned on the initial order shall prevail. A change to the initial order will result in a change to the delivery date.

2.5 The Company may put in place different methods of managing logistics flows with the Client and in particular Electronic Data Interchange (EDI). To optimise transactions with its clients, the Company is ready to organise and implement any request for interchanges to GS 1 standard so as to handle flows.

3.1 The Product pricing includes carriage within ‘France métropolitaine’ (mainland France including Corsica) and Monaco before taxes (VAT and other taxes or levies applicable specifically to the Products, notably WEEE, which are to be borne by the Client) in force on the day the order is dispatched. The rate of VAT to be applied to the price before tax is the rate in force on the day of invoicing.

3.2 Free Carriage: the eligibility thresholds for free carriage are as follows:

• 380 euros ex tax for a shop delivery
• 2,500 euros ex tax for a warehouse delivery These thresholds apply to a single invoice and to all product ranges by Company. Below these amounts, carriage is invoiced to the client in addition.

3.3 Each price list is fixed in accordance with current economic conditions and the Company reserves the right to proceed with a justified change or increase to prices in the event of a change to these conditions, in particular to take account of events external to the business such as, for example:

• variations greater than or equal to 10% in the prices of raw materials.
• a significant variation in the cost price of packaging.
• a significant increase in purchase prices.
• a significant variation to rates of exchange.
• a significant variation in transport costs.

3.4 The Company reserves the option of changing at any time the Products that are offered to the Client, and that the latter may have included in its product lines, without prior notice and without giving rise to any right to payment of any damages or interest.

3.5 Any claim relating to the price of the Products must be presented within one month of receiving the invoice concerned. Other claims relating in particular to sums that may be due from the Company, for whatever reason, for a calendar year, must be presented by registered letter with acknowledgement of receipt within 12 months of the end of the calendar year in question. After the expiry of these dates and notwithstanding the provisions of Article L.110-4 of the Code de Commerce, no sum may be demanded in respect of the previous calendar year, in particular concerning sale prices, discounts, rebates and promotions or trade co-operation agreements, other obligations, any penalties, new promotion methods, etc.

3.6 The Client undertakes to use any materials (POS, specific display items and advertising material) made available to it either free of charge or invoiced by the Company for the sole purposes of marketing the Products. If this situation arises, the Client undertakes to comply with the instructions for setting up these materials and/or products in the display items, as communicated by the Company. When they are provided, the Company may have them back at any time.

4.1 The Company operates daily invoicing of its shipments, which are payable:

• by a scheduled transfer, or by an accepted draft
• and at 60 days from the date of invoice.

Discount: No discount will be granted in case of advance payment.

4.2 Late Payment In any case when payment is overdue, wholly or partly, the Company reserves the right to apply a penalty for delay amounting to 12% of the invoice sum including VAT in addition to a fixed recovery fee of 40 euros, without prejudice to any additional indemnity that the Company may seek. In addition, non-payment, even partial, may incur, at the discretion of the Company:

• earlier payment of other outstanding sums that were not otherwise due,
• suspension of current deliveries.

4.3 Set-off No set-off is accepted by the Company except as provided by articles 1347-1 and thereafter of the Code Civil, in other words unless the obligations are certain, liquidated and enforceable. If this situation arises, the Company will inform the Client or conversely the Client will inform the Company as soon as possible of any invoices, making sure to state the reference numbers of the said invoices so as to facilitate financial reporting. No penalty may be considered to be certain. Consequently, any deduction applied by the Client without the prior agreement of the Company as regards the principal or amount of the obligation in dispute will constitute non-payment, with all the consequences thereof (interest, recovery penalties, etc).

5.1 The date of delivery, communicated to the Client on acceptance of the order or the dispatch of the products, is indicative only. Deliveries are free of charge; the Company reserves the right to choose the means of transport and the departure point of the merchandise.

5.2 Delivery takes place to a warehouse or a shop, by a carrier commissioned by the Company, or by a carrier commissioned by the Client. In all cases, save as otherwise agreed, risk passes when the products are loaded in the Company’s warehouses onto the means of transport chosen by or on behalf of the Client.

5.3 Claims

In case of damage or defect that is apparent when the Products are received, the Client must:

• log a clear, precise and comprehensive objection on the waybill
• confirm their objections to the carrier within three (3) days in accordance with article L. 133-3 of the Code de Commerce, and
• send a copy of the annotated waybill and of the registered covering letter to the Company within the same time period.

If this procedure is not followed, the products will be deemed to be in accordance with the order and no liability will attach to the Company.

Defective or incorrect products: in the event that Products are delivered which are not as ordered or which are defective (in terms of material, dimensions, amount, weight or quality) the Client must notify a claim to the Company by registered letter, with acknowledgement of receipt and within eight (8) days from the reception of the said Products, accompanied by all useful evidence (waybill, photographs, batch number, etc). The original packaging of the said Products must be retained. If this procedure is not followed, the Company will be discharged from any liability to the Client which will then be deemed to have accepted the products. The Company alone shall decide what action is to be taken concerning the claim received, and in particular as to replacement of and/or reimbursement for the Products, after any checks are made, and the Client cannot claim any additional compensation or indemnity.

5.4 Return of Products: No rejection or return of Products, including products said to be defective or incorrect, may take place without the Company’s prior agreement.

5.5 Take-back of Products: The Company does not take back unsold stock, except as otherwise provided in the conditions applicable to each category.

6.1 The Company reserves the right to suspend or cancel the sale, wholly or partly, in the event of ‘force majeure’ as defined by article 1218 of the Code Civil. The occurrence of such a case of force majeure shall be notified by the Company to the client as soon as possible and will release the Company from its obligations; no indemnity, damages, interest, penalties or costs relating to the occurrence of such a case of force majeure may be claimed.

6.2 However, given the nature of the Products, the implementation conditions for article 1218 of the Code Civil do not exclude discussions between the Client and the Company or amendment of the commercial agreement or its application conditions concerning this situation which may not necessarily fall within the definition of force majeure, in particular in the event of circumstances that may prevent, reduce or delay the manufacturing of the Products, their storage or their transport (for example products being out of stock rather than seasonal; a customs bottleneck; shutdown or shortage of the means of production or transport connected with strike action; shortages of materials, etc).

7.1 The Company reserves the right to ask the Client to renegotiate the commercial agreement if a change of circumstances that was unforeseeable at the outset makes its performance excessively onerous for the Company which had not accepted the assumption of this risk, in accordance with article 1195 of the Code Civil.

7.2 Furthermore and in view of the nature of the Products, the implementation conditions for article 1195 of the Code Civil do not exclude discussions between the Client and the Company or amendment of the commercial agreement or its application conditions concerning this situation which does not necessarily fall within the definition of unforeseeability, in particular in the event of circumstances that render the performance of all or part of the Agreement economically unviable, especially the manufacture and/or transport of the Products

8.1 The Company is ready to give information about any incident to the Client, in particular concerning deliveries or any mishap, and to analyse any loss related to the incident. However the Company rejects the notion of systematic and/or fixed penalties which do not accurately reflect reality or the amount of any loss and/or which are redundant or are for delay linked to the Client.

8.2 Any invoice for penalties and/or debit note issued by the Client must be accompanied by evidence enabling the Company to see that it is well founded (c.f. Recommendation 19-1 by the Commission d’Examen des Pratiques Commerciales or CEPC concerning logistics penalties) and in particular at least:

• the relevant order number
• the date and time predicted for the delivery, as set out on the BL, it being understood that:
  • If the Client does not comply with the appointment time fixed by the carrier (or if the
  • Client changes the appointment time and this is not accepted by the carrier) the Company will not be liable to any penalty
  • If the time of the appointment is changed by the Client, and subject to the agreement of the carrier to this change, the Company will not be liable to any penalty arising out of this change
• the grounds for the penalty (delay, incorrect products, missing products, etc)
• details of the particular product(s) concerned in the incident.
• the quantity concerned in the incident.

On receiving these proofs and details, the Company and the Client will discuss the matter, taking account of all relevant circumstances.

8.3 In the absence of proofs and details and/or of express agreement given case by case, the claim shall be deemed to be ill-founded and the Company will not be subject to any penalty of any kind.

8.4 The Client and the Company will ensure that they meet on at least 1 occasion per quarter to discuss any current disputes, paying particular attention to the situations in question (compliance with the process for orders and/or pre-orders, external factors, seasonal variations, etc).

9.1 The Products must be stored by the Client in normal conditions that are suitable for goods of that kind. The products must be stored in a place that is healthy (free of rodents, insects and birds), clean and dry, and not exposed to freezing, water damage or weather. The Company shall not be liable in the event that the products sold have been stored or distributed in conditions which are abnormal or unsuitable for goods of that kind and the Company will not accept the return of merchandise in those circumstances.

9.2 THE COMPANY RETAINS TITLE IN THE MERCHANDISE DELIVERED UNTIL THE PRICE IS PAID IN FULL. Bills of exchange and other negotiable instruments creating an obligation to pay do not constitute payment within the meaning of these provisions. The Client, authorised to resell merchandise delivered to it in the normal course of its trade, must immediately inform the Company of any seizure, for the benefit of a third party, of merchandise delivered to it that is subject to retention of title. In the event of full or partial non-payment by any agreed payment date, and eight (8) days after a formal demand by registered letter that has not had the desired effect, either wholly or in part, the sale may be cancelled as a matter of right, if the Company deems this appropriate, without prejudice to any damages or interest claimed from the Client. The merchandise must be made immediately available to the Company, unless the latter demands the return of the merchandise at the Client’s expense. The recovery of merchandise does not represent rescission of the sale contract. The sums already paid by the Client will be retained on account of the initial damages and interest and subject to any others.

In accordance with the law in force, the Company’s responsibility in terms of traceability goes no further than following its products up to the first delivery point. The Client is responsible for tracing products delivered by the Company through its distribution circuit. The management of all risks related to the safety of the Products, and any breach of regulations relating to the products sold by the Company, will be dealt with in accordance with the process for crisis management defined by the Company’s Quality Department.

The Client is solely responsible for fixing its resale prices. In the event of resale of the Products via the internet, so as to best respect and enhance the image of the Company’s brands and products and not to impair their reputation, the Client undertakes: – to display all necessary elements (logo, address, website name, etc) so as to avoid any confusion on the part of internet users between its own website and that of the Company
– to disseminate selling points and/or product photos only as provided by the Company
– to update its website no more than 10 days from the receipt of new information about the Company or its Products
– not to denigrate, directly or indirectly, the Company’s products, in particular but not solely by presenting comparisons.

13.1 Both parties undertake to comply with their legal and regulatory obligations as regards protection of personal data, and in particular the law no.78-17 of 6 January 1978 as amended, relating to information technology, files and freedoms; and Regulation EU 2016/679 of the European Parliament and the Council of 27 April 2016 (“the GDPR”).
13.2 The Company undertakes to process the personal data (“the Data”) collected from the Client only for the purpose of managing their commercial relationship. The Client may at any time exercise its rights of access to, rectification, objection and deletion of data, and of restricting the processing and portability of the Data, by writing to contact@fdg.fr; and through its right to lodge a claim with the relevant regulatory authority (in France, the Commission Nationale de l’Informatique et des Libertés or CNIL). The Data is retained for the duration of the commercial relationship with the Client and for 5 years after the end of the commercial relationship, in compliance with the limitation period provided for by article L110-4 of the Code de Commerce.

14.1 The Company reserves the right to change, at any time, the scope of its operations (by purchase, transfer or reorganisation) and in particular to change its logistics organisation and thus to amend these GCS(A). If this situation arises, the Company undertakes to inform the Client in advance and in writing, allowing a reasonable time.

14.2 it is expressly agreed that the Client may in no circumstances oppose these changes to scope. Furthermore, the Company may at any time transfer all or part of its rights and obligations arising from these GCS(A) to another company in the FDG Group.

14.3 If the Company does not comply with any one of the obligations imposed on it by the Client, this will not result in the immediate end of all relations, for example de-listing, cancelling pending orders and/or cancellation of sales of merchandise already delivered.

14.4 Any anticipated termination of commercial relations will involve reimbursement by the Client of payments on account. whether in the context of a trade co-operation agreement or of discounts or rebates, as well as the loss of the right to any rebate that may have been due based on the turnover achieved by the date when the termination takes effect.

15.1 The GCS(A) are governed by French law. 15.2 All disputes arising between the parties shall be heard by the courts and tribunals that have geographical jurisdiction at the location of the Company’s headquarters, whatever the delivery location or method of payment accepted, even in the event of a recourse in warranty or a multiplicity of defendants.