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COSMETICS ON DEMAND

TERMS AND CONDITIONS OF SALE

Last update: 03/06/2022

Carmel Cosmetics Labs is a Société A Responsabilité Limitée under Moroccan law with a share capital of 450.000 DHS registered with the Registre du Commerce et des Sociétés de Agadir under number 25081 with registered office at B1006 ZI Ait Melloul (the  “Seller” ). The Seller’s tax identification number is 47237559.

Article 1 – SCOPE OF APPLICATION

The present general terms and conditions of sale (the  “General Terms and Conditions” ) apply to the sale of products marketed by the Vendor (the  “Products” ) to any professional customer acting within the framework of his activity and wishing to benefit from them (the  “Customer” ). The General Terms and Conditions notably stipulate the conditions of purchase, payment and delivery of the Products ordered by the Customer. The Customer may refer to the description of each Product in the Vendor’s catalog to find out its characteristics. Placing an order for Products implies the Customer’s prior acceptance, without restriction or reservation, of the General Terms and Conditions, which the Customer declares to have read and understood. The General Terms and Conditions are applicable notwithstanding any stipulation to the contrary in any documents issued by the Customer, and in particular in its general terms and conditions of purchase. The General Conditions are applicable subject to any stipulation to the contrary appearing on the order form or in any special conditions concluded between the Vendor and the Customer concerned.

Article 2 – PRODUCTS AND AVAILABILITY

The price and essential characteristics of each Product are described in the Seller’s catalog and published, as the case may be, by the Seller or its suppliers. Descriptions may include indications, photographs and graphics which are provided for illustrative purposes only and may be modified/updated by the Seller.

 The Products offered comply with Moroccan legislation and standards in force at the time the order is placed. The fact that the Vendor presents Products in its catalog does not constitute an obligation to market them, particularly in the event of stock shortage, unavailability of Products or impossibility of marketing said Products, for whatever reason.

Article 3 – COMMANDS
3.1 Placing an order

Any Customer wishing to place an order with the Vendor must complete and sign an order form summarizing the essential characteristics of the Product(s) ordered, the total price, the terms of payment, the indicative delivery time or duration, any delivery restrictions and an order tracking number. In the case of the sale of Products manufactured to special order by the Customer, the order is preceded by a detailed quotation, valid for 7 days from the date of its creation, stating the price or the method of calculating the price, and whose acceptance and signature by the Customer then constitutes an order form. Confirmation of the order takes place as soon as the order form is signed by the Vendor or the latter sends an e-mail confirming the order, the order thus becoming firm and definitive. No order may therefore be modified or cancelled without prior written agreement between the Vendor and the Customer. In the event of cancellation by the Customer of a confirmed order, for any reason whatsoever, and without prejudice to any additional damages:

-any down payment made by the Customer at the time of ordering will remain the property of the Vendor and will not be reimbursed; or

– a sum corresponding to 50% of the total price excluding taxes of the Products will be due to the Vendor and invoiced to the Customer.

3.2 Controls

Each Customer guarantees the sincerity and accuracy of the information provided for the purposes of his order and undertakes to notify the Vendor of any changes. In order to combat fraud, the Vendor or its payment or delivery service providers may request additional proof from the Customer (in particular proof of address and/or copy of identity document) or contact the Customer at the time the order is accepted and/or dispatched. In the event of an unjustified refusal by the Customer to provide the information and/or supporting documents requested, the Vendor reserves the right not to accept or to cancel the order without any right of objection. The Vendor also reserves the right not to accept or to cancel the order of any Customer who has provided incorrect information, who has failed to pay for the Products, with whom there is a dispute relating to the payment of a previous order, or who has an abnormally high level of orders.

Article 4 – RATE CONDITIONS

Products are sold at the Seller’s list price in force on the day the order form is signed, expressed in dollars, euros and Moroccan dirhams, excluding taxes and charges. Prices are firm and non-revisable during their period of validity. Any charges for transport, delivery, order processing (postage, packaging, preparation of the parcel, optional services subscribed to by the Customer) and other charges, interest and commissions are indicated on the order form and are established according to the place and method of delivery/Incoterm selected by the Customer, as well as the type of Product and/or the quantity of Products ordered by the Customer.

Any special request made by the Customer after the order form has been signed, and generating costs (packaging, transport, etc.), will be invoiced to the Customer. If the Products are not received by the Customer and must be reshipped, the Customer may be billed for additional processing, shipping, transport and delivery costs under the same conditions as those set out on the order form.

The Vendor reserves the right to modify its prices at any time for any Products ordered after such modification.  Where the sale of Products is for successive performance, billable at regular intervals and subject to tacit renewal, any change in the price of Products takes effect at the beginning of the next contractual period. If the customer does not cancel before this date, the new tariff will apply to the new contract period. Price reductions, rebates and discounts may apply to the Products under the conditions set out in the Vendor’s catalog or in any other document communicated to the Customer. In the event of a promotional price, the Seller undertakes to apply this price to all orders placed during the promotional period.

Any change in prices resulting from an increase in value-added tax or the creation of any new tax based on the price of the Products will be immediately and automatically applied.

Article 5 – CONDITIONS OF INVOICING AND PAYMENT

A deposit of 50% of the total price of the Products is invoiced by the Seller and payable to the Customer on the date of signature of the purchase order, the balance being invoiced and payable on notification of the end of production before delivery of the Products. All payments are made by bank transfer or in accordance with the conditions agreed between the Vendor and the Customer in the order form. Where applicable, the Customer undertakes to notify us of any changes to his bank account details. Failing this, the customer will be debited with the costs incurred by the return of unpaid bills for change of direct debit.

In the event of early payment by the customer, no discount will be applied except in exceptional cases mentioned on the order form. Under no circumstances may payments be suspended or offset in any way without prior written agreement between the Vendor and the Customer. Any unilateral suspension, deduction or set-off by the Customer will be treated as a default in payment and will entail all the consequences of late payment.

It is expressly agreed that the Customer is validly put in default of payment by the mere payability of the obligation. In the event of late payment of any of the due dates, the Vendor reserves the right, without any compensation being due to the Customer, to :

– demand immediate payment of all sums due for the Products, which will become immediately due and payable, regardless of their initial due date.

– refuse all new orders or require cash payment or a guarantee for the proper execution of commitments ;

– Apply any partial payment first to the non-preferential part of the claim, then to the sums that have been due the longest;

– reduce, suspend or cancel current orders for Products,  15  days after the Vendor’s formal notice to the Customer has remained without effect;

– apply, without prior notice, to all sums due, from the first day of delay until full payment, late payment penalties calculated at the rate in force at the Bank of Morocco; and/or

– demand payment of a flat-rate indemnity of $40 (40 euros or 400 MAD) for collection costs, for each invoice paid late, and payment of an indemnity equal to 10% of the sums remaining due to it on Product Sales, without prejudice to compensation for any damage actually suffered. The Vendor shall be entitled to set off, ipso jure and without formalities, all sums it may owe, against the Customer’s debts to the Vendor, whether or not the conditions for legal set-off have been met.

Article 6 – DELIVERY OF PRODUCTS
6.1 Delivery

The Products ordered by the Customer will not be delivered until the Customer has actually paid the amount referred to in article 5 above. Products can be delivered to any country, unless otherwise stipulated by applicable law.

Upon confirmation of the order and payment by the Customer, the Products will be dispatched by the method, to the address and within the delivery period indicated on the order form, together with the corresponding invoice. In this respect, the Customer undertakes to make every effort to ensure that the Products are received correctly on the day of delivery. The cost of any delivery shall be borne by the Customer. Furthermore, in the event of a delivery error resulting from the Customer’s communication of inaccurate information (delivery location, accessibility of the location or any other problem) leading to the need to make a new delivery, the related costs will be invoiced to the Customer.

With the Vendor’s prior agreement, the Customer may collect the Products ordered from the place indicated by the Vendor. The delivery times provided for orders are given as an indication only, depending on the availability of the Products ordered and the delivery times applied by the Vendor’s partners. Delays in delivery, insofar as they are reasonable, do not give rise to any right to cancel the sale, to refuse the goods or to claim damages. In the event of delivery outside Morocco, the Customer shall be deemed to be the importer of the Products and shall be bound by the regulations of the country of delivery, it being specified that cross-border deliveries may, where applicable, be subject to an opening and inspection procedure by the customs authorities.

6.2 Conformity of delivery

The number and condition of Products must be checked by the Customer at the time of delivery.

The Seller will be obliged to take back the Products in the event of delivery of Products which do not conform to the order form. Products damaged on delivery are the responsibility of the Customer, given that the Products are delivered to the Customer under the incoterm ” Ex Works”. “.. The Customer must notify the carrier in writing of any apparent defects, missing or damaged goods by means of clear, precise and complete reservations on the delivery note. The Customer must confirm his complaint to the Vendor and the carrier by e-mail within 1 day of delivery of the goods.

The Vendor will validate the return request and send the Customer by e-mail a return form to enclose with the shipment of the Products.

The Customer must return the non-conforming Product to the Vendor as soon as possible.

Unless the exclusive liability of the Seller is indisputably established or expressly acknowledged by the Seller, the costs and risks of return shall be borne by the Customer. The Seller reserves the right to refuse the return if the Products are not in their original condition. Should the Customer fail to comply with the above procedure, the Customer will be presumed to have waived all claims against the Vendor and/or the carrier and to have received the goods in good condition. Consequently, the Vendor will not accept any claim, return or request for a credit note from the Customer.

Article 7 – OWNERSHIP AND RISKS
7.1 – Reservation of ownership

It is expressly agreed with the Customer that the transfer of ownership of the Products delivered is suspended until full and effective payment of the price in principal, interest, taxes and all incidental costs. The remittance of bills of exchange, bank cheques or any other instrument creating an obligation to pay does not constitute actual payment in this respect. Acceptance of deliveries or documents relating to such deliveries implies acceptance of this clause.

In the event of non-payment of the price on the agreed due date, the Vendor expressly reserves the right to consider the sale cancelled and to reclaim the said Products after formal notice has been given by registered letter or bailiff’s summons without effect within 15 days of their presentation. As long as the Products do not belong to the Customer, he is forbidden to dispose of them, in particular to pledge them, exchange them or transfer ownership of them by way of guarantee.

The Customer also undertakes, in return, to identify the Products under retention of title, not only at the end of the fiscal year, but on a permanent basis, by any means at its convenience. The Customer must record the Products subject to retention of title as assets on its balance sheet. Products awaiting sale are presumed to be unpaid up to the amount of the seller’s claim according to the  “first in, first out”  (FIFO) rule, i.e. that any payment by the Customer will be allocated to the oldest Products, and it will be the Products covered by the last delivery that will always be considered as subject to the retention of title.

Notwithstanding the fact that ownership of the Products shall not pass to the Customer until actual payment has been made, the transfer of risk in the Products to the Customer shall take place in accordance with the conditions set out below. The Customer therefore undertakes to take all possible care in the custody and preservation of the said goods.

The Customer shall immediately notify the Vendor by any means ensuring perfect communication of any fact likely to compromise his right of ownership, in particular the opening of safeguard, liquidation or receivership proceedings, seizure or any other protective measure. In the event of the opening of safeguard, liquidation or receivership proceedings, the Customer undertakes to participate in the drawing up of an inventory of the Products in its stock for which the Vendor claims ownership or payment, and to assist the Vendor effectively in the reclamation proceedings brought before the competent authorities. In the event of seizure or any other protective measure against the Products delivered by the Seller, the Customer shall lodge all protests against the third party and take all protective and enforcement measures.

All legal and judicial costs generated by the recovery of the Products subject to retention of title or their price shall be borne by the Customer.

7.2 – Transfer of risk

The Products will be at the customer’s expense, risk and peril from the moment they are handed over to the carrier or collected by the customer.

In this case, the Vendor will be deemed to have fulfilled its delivery obligation as soon as it has handed over the Products to the carrier and the carrier has accepted them without reservation. The Customer will have no recourse against the Vendor in the event of faulty delivery or non-conformity of the Products at the time of delivery. The customer shall therefore take out all necessary insurance policies to cover the risks of loss, destruction or theft of the goods for which the risks have been transferred.

Article 8 – GUARANTEE

Any return of defective Products or Products with a material, design or manufacturing defect requires the Vendor’s prior written consent. Unless the Seller’s liability is indisputably established or expressly acknowledged by the Seller, the costs and risks of return shall be borne by the Customer. The Seller reserves the right to refuse the return if the Products are not in their original condition.

No return of unsold Products will be accepted. Any defective Product may be repaired, replaced by an identical or equivalent product, or reimbursed, according to the solution that the Seller or the manufacturers concerned deem most appropriate, except in the case of :

–         alteration or modification of the Products;

–         abnormal or improper use of the Products;

–         defects and consequences of use not in accordance with the use for which the Products are intended;

–         defects and consequences of any external cause;

–         normal wear and tear of the Products;

–         failure by the Customer to comply with the return procedure.

In the event of a dispute concerning the warranty of a Product, the parties shall do their utmost to reach an amicable settlement.

Article 9 – LIABILITY            

The Vendor shall not be held liable in the event of non-performance of its obligations being attributable to the Customer, to the unforeseeable and insurmountable act of a third party to the contract, or to a case of force majeure, including, but not limited to, unforeseeable events such as strikes, work stoppages, labour unrest, factory closures, floods, fires, production or transport failures not caused by the Vendor’s own actions, supply disruptions, wars, pandemics, riots, insurrections and, more generally, any circumstance or event preventing the Vendor from properly performing its obligations.

The Seller shall not be liable for any indirect or consequential loss or damage such as financial loss, loss of opportunity, loss of profit, loss of contract, loss of order, loss of customers, operating loss, commercial loss or disturbance or loss of image, which may result from the delivery of non-conforming or defective Products or from the non-delivery of Products.

As the sale of Products and the present General Terms and Conditions comply with Moroccan legislation, the Vendor cannot be held liable in the event of non-compliance with the legislation of another country if the Customer places an order for a Product from another country.

In any case and in all cases of return, if the Vendor’s liability were to be retained, it could under no circumstances exceed the purchase price of the goods paid by the Customer.

Any legal action by a Customer against the Vendor is time-barred at the end of one (1) year following the date on which the Customer concerned knew or is presumed to have known of the harmful event.          

Article 10 – INTELLECTUAL PROPERTY

The Vendor may hold intellectual and/or industrial property rights concerning the Products sold to the Customer. Should the Customer become aware of any infringement of the Vendor’s intellectual and/or industrial property rights, the Customer shall immediately inform the Vendor in writing.

Article 11 – DURATION – TERMINATION

In the case of one-off sales or in application of special conditions, these General Terms and Conditions are applicable for the duration of each sale of Products between the Vendor and a Customer or, where applicable, for the duration of the special conditions agreed with a Customer.

In the case of successive sales, these General Terms and Conditions are applicable for an initial period of 12 Months. In the absence of denunciation of the present General Terms and Conditions within a period of 1 month preceding the end of this initial duration, the sale of Products and the General Terms and Conditions are tacitly renewed for a new period equivalent to the initial duration shown on the order form, at the price conditions in force on the date of renewal.

Without prejudice to the specific cases of termination provided for herein, the Seller or the Customer may terminate the General Terms and Conditions in advance by sending written notice :

-in the event of force majeure as described in article 9 hereof;

-after notifying the other party in the event of a serious breach by the latter of its obligations or under applicable laws and regulations, which has not been remedied within fifteen (15) days (where such breach can be remedied) following written notification indicating the nature of the breach and the need to remedy it.

Article 12 – PERSONAL DATA
12.1 Type of personal data collected

The Seller undertakes to collect only personal data that is adequate, relevant and limited to what is necessary for the purposes for which it is processed.

12.2 Purpose of processing personal data

Personal data may be collected and used by the Vendor for the purposes of sales, and may be passed on to companies responsible for the management, execution and processing of payment transactions. This information and data may also be stored for security and conservation purposes, in order to comply with the legal and regulatory obligations to which the Seller is subject.

The data collected may also be used to manage commercial relations, to compile statistics, to carry out market and behavioral research and to enable the Seller to improve and personalize the Products.

12.3 Storage, security and confidentiality of personal data

The personal data collected is processed and stored in conditions designed to ensure its security, and is kept for the time strictly necessary to achieve the purposes referred to in article 9.2 of these General Terms and Conditions above. After this period, they will be kept exclusively for statistical purposes and will not be used in any way whatsoever.

This data may also be stored for security and conservation purposes, in order to comply with the legal and regulatory obligations to which the Seller is subject.

The Seller undertakes to implement technical and organizational security measures to guarantee the security, integrity and confidentiality of all personal data, in order to prevent it from being distorted, damaged or accessed by unauthorized third parties.

However, as no security measure is infallible, the Vendor cannot guarantee absolute security for the Customer’s personal data.

12.4 Transfer of personal data

Except in the case where a third party asks the Customer to accept a confidentiality charter and conditions of use that are specific to that third party, third-party companies that have received communication of the User’s personal data have undertaken to process the User’s personal data solely for the sale of the Vendor’s product.

The Vendor undertakes never to share the Customer’s personal data, without having obtained the Customer’s prior consent, with third-party companies for marketing and/or commercial purposes.

However, the Vendor may disclose the Customer’s personal data to administrative or judicial authorities when such disclosure is necessary for the identification, apprehension or prosecution of any individual likely to prejudice the rights of the Vendor, any other customer or any third party. Finally, the Vendor may be legally obliged to disclose the Customer’s personal data, in which case the Vendor may not object.

Article 13 – PRIVACY

During the term of the present contract, each party may become aware of or receive confidential information, documents and/or data concerning the other party. Accordingly, each party undertakes, both on its own behalf and on behalf of its employees for whom it acts as guarantor, to maintain the strict confidentiality of all information, documents and/or confidential data of any kind relating to the results, activity or clientele of the other party or any information received or obtained from a party within the framework of the established contractual relationship.

The present confidentiality agreement between the parties is valid for the duration of the present agreement and for a period of two (2) years following its expiry or termination.

Article 14 – NOTIFICATIONS

Any written notice or summons required or permitted by virtue of the provisions hereof shall be validly given if sent by hand-delivered letter or by bearer against delivery receipt, by registered mail with acknowledgement of receipt, or by electronic mail (except in the event of termination hereof), addressed to the contact details of the party concerned, each party electing domicile at its registered office.

Any change in a party’s contact details for the purposes of this agreement must be notified to the other party in the manner provided above.

Notifications sent by hand or by bearer will be presumed to have been made on the date of delivery to the addressee, as evidenced by the delivery receipt. Notifications made by registered mail with acknowledgement of receipt will be presumed to have been made on the date of their first presentation at the addressee’s address. Notifications made by e-mail will be presumed to have been made on the date the e-mail was sent.

Article 15 – AUTONOMY AND ABSENCE OF WAIVER

If any provision of these General Terms and Conditions is declared null and void or inapplicable for any reason whatsoever in application of a law, regulation or following a final court decision, it shall be deemed unwritten and the other provisions shall remain in force.

The Vendor’s temporary or permanent non-enforcement of one or more of the provisions of the General Terms and Conditions shall in no event constitute a waiver.

Article 16 – MODIFICATION

The Vendor reserves the right to modify the content of these General Terms and Conditions at any time for the purpose of placing new orders for Products.

Any order resulting from a modification to the General Terms and Conditions will imply acceptance by each Customer of the new version of the General Terms and Conditions, which will be communicated to them.

Article 17 – DISPUTES

Any disputes that may arise within the framework of the contractual relations established between the Customer and the Vendor shall be resolved as amicably as possible.

In the event of failure to reach an amicable settlement within a period of one month from the date of referral by one of the parties, all disputes to which the General Terms and Conditions may give rise, concerning their validity, interpretation, execution, termination, their consequences and their consequences, will be submitted to an arbitrator or an arbitration court or, where applicable, to the Commercial Court of the city of Agadir.

Article 18 – APPLICABLE LAW & LANGUAGE                          

These General Terms and Conditions and the operations arising from them are governed by and subject to Moroccan law. They are written in Arabic, French and English. In the event of translation into one or more foreign languages, only the French and Arabic texts will be deemed authentic in the event of a dispute.

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