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L'Atelier des Créateurs

GENERAL CONDITIONS OF SALE

1 – GENERAL PROVISIONS

These General Conditions define and set out the terms and conditions for the manufacture and sale by ATELIER DES CREATEURS LDA (hereafter referred to as ADC) of essentially made-to-measure garments as well as associated services (studies, design, digitisation, patterns, grading, etc.) (hereafter referred to indiscriminately as « the Products ») provided to its clients and ordering customers (hereafter referred to as the Client(s)).

These General Conditions apply in their entirety as from 1 September 2022 to all sales and manufacturing of Products by ADC directed to its Clients. These General Conditions constitute the essential and determining conditions and prevail over all general conditions of purchase and all other documents issued by the Client, whatever their terms. These General Conditions can be consulted at any time on ADC’s website http://www.atelierdescreateurs.pt. They are intrinsically associated with the current price list of the Products.

Therefore, any order sent to ADC implies the Client’s unreserved acceptance of ADC’s Product prices and of these General Conditions. The information, standards and characteristics indicated in ADC’s documents (catalogue, sheets, flyers, etcetera) are provided for information purposes only.

These General Conditions are written in Portuguese in their original version, which prevails over any other version translated into a foreign language, in particular English and French or any other future version.

The fact that ADC does not exercise, at any time, a prerogative recognised by these General Conditions, or does not require the implementation of any stipulation of the agreement resulting from these General Conditions, shall not be interpreted, under any circumstances, as a modification of the contract, nor as an express or tacit waiving of the right to exercise the said prerogative in the future, or of the right to require the strict fulfilment of the commitments undertaken herein.

2 – APPLICABLE LAW – JURISDICTION

These General Conditions and the sales of Products governed by them are subject to Portuguese law, excluding any international agreement.

In the event of a dispute relating to these General Conditions and to the sale of Products, as well as to the commitments they govern, the Parties shall attempt as far as possible to resolve their dispute in an amicable manner, within a period of one month from notification to the other Party by registered letter with receipt of delivery.

In the event of failure to do so, and even in case of a summary procedure or warranty proceedings and notwithstanding the multiplicity of instances or parties, the dispute shall be brought before the District Court of Oporto, where ADC’s registered office is located and which the parties agree is competent to hear the case, except in the event that another jurisdiction is deemed to be competent by virtue of the rules of public order.

3 – ORDERS

3.1 PLACING AN ORDER

Orders for Products placed by the Client with ADC can be made in the following ways:

Following receipt of the complete order from the Client, ADC will send them a receipt of delivery confirming the terms and conditions of the order for the Products concerned.

In the absence of a receipt of delivery, the commencement of fulfilment by ADC of the Client’s order shall be deemed to constitute tacit acceptance of the order by ADC.

In any event, any order sent to ADC, whether final or not, cannot be withdrawn or modified by the Client, except with the prior agreement of ADC. Any advance payments made by the Client do not constitute a deposit, the waiver of which would authorise the Client to withdraw from any order for Products. In the event of cancellation of the order by the Client without the agreement of ADC, the advance payment, if any, shall remain the property of ADC, and the price of the order withdrawn or cancelled by the Client shall remain due, without prejudice to any right to compensation for any damage resulting from the modification or the withdrawal of the order. The benefit of an order is personal to the Client and cannot be transferred without the agreement of ADC.

ADC undertakes to honour orders within the limits of available stocks of raw materials, as well as subject to the availability of its production tools, or the performance of their own obligations by subcontractors, suppliers and other third parties to whom it has recourse within the framework of the supply of the Products.

In the event of non-availability of the Product(s) concerned, for whatever reason, ADC undertakes to inform the Client as soon as possible and to propose a new delivery date for the Product(s) concerned.

3.2 SUPPLY OF RAW MATERIALS

In the event that the Client supplies its own raw materials for the manufacture of Products, ADC:

The order service for specific raw materials on behalf of the Client will be subject to the rates in force at the time the Product is ordered. In this case, the Client shall bear the full cost of the supply delays without ADC being held liable, as the manufacturing period only starts once all the raw materials ordered by the Client are available at ADC’s premises.

4 – RETENTION OF TITLE

THE PRODUCTS ARE SOLD UNDER RESERVATION OF TITLE UNTIL THEIR COMPLETE PAYMENT BY THE CLIENT. IN THIS RESPECT, PAYMENT SHALL BE UNDERSTOOD TO MEAN THE ACTUAL PAYMENT TO ADC’S ACCOUNT OF ADC FOR THE PRODUCTS, THE COSTS ASSOCIATED WITH THE SALE AND INTEREST. In the event of non-payment, even partial, by the Client of the price of the Products, ADC may, eight days after a formal notice to pay by registered letter with receipt of delivery which has remained unsuccessful, without losing its rights under the sales and/or manufacturing concerned, take back the unpaid Products at the expense and risk of the Client, with the Products in stock at the Client’s premises being presumed to be those unpaid. ADC will retain any deposits paid by the Client as damages, without prejudice to any other compensation. In order to allow ADC to claim the Products and to preserve its rights, the Client is required to inform ADC immediately of any change in its situation and in particular of its declaration of receivership or liquidation, or of any other action (seizure, confiscation, etcetera) taken by third parties that may call into question its right of ownership within a maximum period of 24 hours. Likewise, in the event of an action that may call into question ADC’s right of title, the Client must inform the third party initiating this action of the right of title thus held on the Products by ADC.

Notwithstanding this retention of title, the Client is nevertheless authorised to resell the Products not yet fully paid for in the normal course of business. In this case, ADC’s rights under this reservation of title will be transferred by operation of law to the price of the resale of the Products by the Client, and this price will thus be subrogated to the Products as such.

5 – RIGHT OF RETENTION

In addition to the provisions of Article 8 below, in the event of late payment, even partial, by the Client of the price of any order for Products, ADC may exercise its right of retention on all raw materials and consumables supplied to it by the Client for the fulfilment of the order in question and/or any other order, as well as on all finished Products not yet delivered to the Client.

6 – PRICE

The Products are sold, manufactured and invoiced to the Client according to the agreed prices in force on the day of their order. The prices of the Products are always exclusive of tax. Transport costs are invoiced in addition, according to the mode of transport selected by the Client. Otherwise, ADC will use the carrier of its choice.

All prices mentioned in ADC’s price lists, brochures, website, etc. are indicated in euros or in the currency in force in the sales territory concerned, excluding VAT and taxes of all kinds and are understood to be « with errors and omissions ». Prices are subject to change with a minimum of 15 days notice.

Payment must be made by the Client by bank transfer to the IBAN of ADC, unless otherwise agreed in writing by ADC and validated between the parties. Any bank charges are to be paid by the Client.

7 – PAYMENT METHODS

Unless otherwise specified, the Products are payable in cash when ordered. ADC’s invoices are payable in Euros at its registered office according to the means of payment accepted by the latter, within 8 (eight) days from the date of their issue.

No discount will be granted in principle in case of early payment on the deadline.

ADC reserves the right to modify the terms of payment for any order of Products in the event of circumstances likely to increase the risk of insolvency of the Client, in particular late payment or non-payment of a previous order. In all cases, ADC reserves the right to make the acceptance and/or fulfilment of any order for Products subject to the prior provision by the Client of satisfactory financial guarantees. Consequently, ADC may suspend, delay, refuse or cancel the order or the contract resulting from these General Conditions if the Client’s financial guarantees no longer correspond to those presented by the Client at the time of the order, or if there is a reason to fear a risk of insolvency or payment difficulties on the part of the Client

In any case, the payment of any invoice will be deemed to have been made on the day of the effective crediting of the funds to ADC’s account. Any right of set-off arising from the Client’s claims is excluded. The completion of the payment will start the manufacturing period, subject to the receipt of the raw materials (article 3.2)

8 – LATE PAYMENT OR NON-PAYMENT

Any sum not paid on the due date shall automatically and without formalities lead to (i) the application of a late payment interest rate equal to 1.5 times the legal Portuguese interest rate in force – that is to say 12% in the 2nd half of 2022 – on the sums still due until their complete payment; (ii) the payment of a fixed indemnity for collection costs in the amount of € 40 in case the collection costs are lower than this sum, and if they are above this sum, in an amount equal to the sums actually incurred by ADC to obtain payment of this sum.

In addition, any delay in payment by the Client will entitle ADC to suspend all orders for Products in progress. At the same time, the sums due for other orders of Products already delivered or in the process of being delivered will be immediately payable.

Furthermore, in the event of late payment or non-payment by the Client, ADC may automatically and after sending a formal notice which has remained unsuccessful, cancel the order concerned and the contract resulting from it under these General Conditions, as well as all previous or current contracts, even if their payment date has not expired.

The Client shall reimburse all costs incurred and borne by ADC in the event of failure to pay on time, on the one hand, and by the recovery of the sums due, on the other hand, including legal fees.

9 – ISSUE – DELIVERY

The delivery of the Products is carried out at the place and according to the terms agreed upon and specified at the time of their order (e.g. by using an Incoterm), in particular in the receipt of delivery of the order issued by ADC. The time necessary for the transport of the goods is not included in the delivery time communicated by ADC.

The Client undertakes to respond within 24 hours to any request for information concerning the manufacture of a Product, at the risk of increasing the delivery time.

The delivery times requested by the Client or communicated by ADC are provided as an indication, unless explicitly confirmed in writing by ADC to the Client.

ADC is authorised to perform global or partial deliveries. Delivery times are given as an indication only and failure to meet them shall in no case give rise to cancellation of the order or payment of damages. In any case, the Client may not protest against a delay in delivery if they are not up to date with their obligations towards ADC, in particular with regard to payment, or if ADC was not in possession, in good time, of any specifications and/or information necessary for the supply of the Products concerned. Under these conditions, the fulfilment and delivery of the Client’s order will be automatically suspended until the payment of the sums due or until the provision by the Client of the necessary information, without the Client being able to claim any claim whatsoever.

10 – TRANSFER OF RISK

All Products sold by ADC are sold Ex Works, ADC being solely responsible for the goods as long as they are in its facilities.

Unless otherwise agreed, notwithstanding the retention of title clause mentioned in the previous Article 4, the transfer of risks of the Products supplied always takes place at the time of their delivery to the Client’s carrier, their subrogated agents or any third party appointed by them, the Products being deemed to be in the custody of the Client from the time of such delivery. Also, from the time of delivery, the Client shall bear the risks that the Products may suffer or cause, for any reason whatsoever, even in the event of force majeure, an act of God or the act of a third party. It is therefore the Client’s responsibility to take out any insurance that it deems appropriate to cover the risks relating to the Products.

11 – COMPLIANCE – ACCEPTANCE

ADC manufactures products by hand and a margin of error of 5mm on each measurement of the Product is accepted by the Client.

The development of a model from a piece already made does not guarantee, in itself, that the piece developed has the same characteristics of clothing as the first, insofar as different materials, different processes of manufacture and the duration of use can make the final result vary;

The conformity, the absence of apparent defects and the number of Products must be imperatively checked by the Client upon receipt of the Products in the presence of the carrier: the costs and risks related to the verification of the Products are to be borne by the Client.

Any reservation or dispute relating to shortages and/or damage related to the transport of the Products must be noted on the delivery slip and confirmed to the carrier by registered letter with receipt of delivery, with a copy of the delivery slip concerned, to the registered office of ADC, sent within 7 days of receipt of the Products, failing which the reservations and claims concerned will be barred from consideration by ADC.

Any reservation or dispute relating to the conformity of the Products, that is to say apparent defect or lack in relation to the characteristics agreed at the time of their order, must be notified to ADC by registered letter with of receipt of delivery at the latest within 5 days from the date of delivery.

The Client must prove the existence of the shortages, defects or anomalies concerning the Products. If these conditions are not met, the Products will be deemed to be in conformity and ADC will not be held responsible.

The Client must allow ADC every facility to proceed with the observation of these defects and to remedy them.

In the event of proven non-conformity, and whatever its nature, ADC shall only be obliged to replace the defective Products with similar products, to the exclusion of all damages, penalty clauses or other indemnities. Similar products, that is to say substitutable for those ordered, are those of the same quality and satisfying the characteristics agreed at the time of the Client’s order.

Any return of a Product must be carried out in accordance with the terms of Article 14 below and the indications communicated by ADC.

In the absence of a replacement, the return of the Products will result in their reimbursement by the establishment of a credit note on the Client’s subsequent sales to ADC. The return of the Products will not, in any case, give rise to the payment of any compensation to the Client.

In the event that the Client refuses to accept the Products, ADC will store them and invite the Client to collect them at their own expense. In this case, ADC will be entitled to request the Client to pay compensation for the storage costs thus incurred. This compensation will be equal to a percentage of 10 (ten) % of the net price of the Products concerned per calendar month of storage (it being specified that such compensation will be due for each calendar month of storage started), plus VAT, without prejudice to the damages that ADC may be entitled to claim for the loss suffered.

In any event, if the Client fails to remove the Products within 90 (ninety) days from the date they are placed in storage, ADC may automatically and without formalities cancel the order for the Products concerned and the resulting Contract, and initiate any procedure for the destruction of the Products concerned, without prejudice to any compensation payable to it.

12 – WARRANTIES

ADC only guarantees the defects in materials and manufacture of the Products recognised by it after examination by its technical services and this for a period of 6 (six) months from the receipt of the Products by the Client. In the event of such defects, the Client must notify ADC by registered letter with receipt of delivery, which may initiate any examination of the Products concerned in order to ascertain the effectiveness of the notified defects. The present warranty does not apply to visible defects in the Products, that is to say defects of visible appearance not declared by the Client following receipt of the Products in accordance with the conditions set out in article 11 above. Also excluded from the scope of this warranty are defects and/or deterioration caused by normal wear and tear, negligence, improper use, improper handling, improper storage and/or improper conservation of the Products, particularly with regard to the recommendations of ADC and/or the regulations in effect. Similarly, this warranty does not apply to defects relating to materials supplied by the Client and with which ADC has manufactured the Products, and in general to materials supplied by the Client. Finally, this warranty does not apply to damage to the Products caused by a factor external to ADC. Any modification carried out on the Products by the Client or by a third party automatically entails the end of this warranty.

In the event of a proven defect covered by this warranty, ADC shall only be obliged to replace the defective Products with similar products or to reimburse them by issuing a credit note on the Client’s subsequent sales to ADC. Similar products, that is to say substitutable for those ordered, are those of the same quality and satisfying the characteristics agreed at the time of the Client’s order.

13 – LIABILITY

ADC undertakes to manufacture and supply the Client with Products that comply with the characteristics and specifications defined with the Client at the time of their order. The Client acknowledges and accepts that they alone are responsible for the information transmitted and communicated for the fulfilment of their order, so that ADC cannot be held responsible in the event of an error, failure or lack of information from the Client. In this respect, it is the Client’s responsibility to communicate all information and documents, if any, requested by ADC and/or agreed with the Client for the fulfilment of the order.

ADC only makes commitments to the Client. Consequently, in the event of action by third parties, such as subsidiaries, employees or Clients of the Client, the Client shall provide ADC with a guarantee. Only the Products expressly ordered by the Client, in accordance with the specifications agreed at the time of their order, are the responsibility of ADC.

The Client undertakes to provide ADC with the necessary cooperation for the supply of the Products, in particular to respond to any request for information necessary for ADC.

Generally speaking, ADC can only be held liable in the event of a fault proven by the Client and attributable to them. In the absence of such proof, ADC declines all responsibility for the direct and indirect consequences of the Products.

In the event that ADC’s liability is incurred, and unless otherwise stipulated in a specific agreement or mandatory legal provision, ADC shall only be liable for material, foreseeable and direct damage suffered by the Client, insofar as the Client proves that ADC’s failure or fault is the cause of this damage.

ADC shall not be liable for immaterial and/or indirect damage such as loss of profit, financial loss and/or commercial loss whether or not resulting from the acquisition or resale of the Products by the Client.

In the event that ADC’s liability is retained, it will in all cases be limited to an amount equal to the sums actually received by ADC for the Products that are the subject of the claim. In any event, ADC’s liability cannot be invoked in the event of force majeure as defined in article 15 below. Finally, the Client shall be solely responsible for any modifications that they themselves have made or had made to the Products and/or their packaging.

14 – RETURNS – RECOVERY

No return of a Product will be accepted if it has not been the subject of an express and prior agreement from ADC to the Client. In case of return, the Products must be in perfect condition, must be returned in their original packaging and must not have been modified and/or used.

15 – FORCE MAJEURE

ADC cannot be held liable in the event of an event of force majeure.

Events beyond the control of ADC and which it cannot reasonably be expected to foresee, insofar as their occurrence makes the performance of its obligations more difficult or more onerous, shall be considered as force majeure with regard to ADC’s obligations. This shall include, but not be limited to, war, explosion, acts of vandalism, riots, epidemics, pandemics, civil commotion, acts of terrorism, machinery breakdown, fire, storm, water damage, strike, lockout, acts of government, embargo, shortage of raw materials, interruption or delay in transportation, containment measures, changes in the regulations applicable to these General Conditions of business or to the Products, which affect the business of ADC, its suppliers and/or service providers.

16 – INTELLECTUAL AND INDUSTRIAL PROPERTY

16.1 INTELLECTUAL PROPERTY RIGHTS OF ADC

Unless a specific agreement to the contrary has been made with the Client, all items of intellectual and industrial property, such as projects, studies, plans, patterns, sketches, plates, prototypes, works, models, know-how, produced by ADC on the Products, when supplying the latter, and/or brought to the attention of the Client, remain the exclusive property of ADC, in particular when the Client has sent items for production. This property also remains with ADC when it only carries out digitisation and/or gradation work.

The same applies to trademarks and any distinctive sign used and/or owned by ADC.

The Client does not acquire any property right on these items of intellectual and/or industrial property of ADC, which remains the exclusive owner of all rights attached to them. These items are brought to the attention of the Client, in particular during the provision of services or Products.

The Client therefore undertakes not to use by any means whatsoever, directly or through a third party, these items of intellectual and industrial property of ADC without its prior written authorisation setting out the terms of use and the financial conditions of exploitation.

16.2 CLIENT’S INTELLECTUAL PROPERTY RIGHTS

The Client is and remains the owner of the intellectual property items that he may communicate to ADC in the context of the fulfilment of his order for Products, such as plans, sketches and designs.

In this respect, the Client offers all guarantees to ADC on the items concerned. In the event of infringement of the rights of a third party on these items, the Client shall be solely responsible for the infringement of the rights of the third party concerned and shall offer all guarantees to ADC against any claim, action, request or condemnation exercised by the third party against ADC with respect to the items concerned.

It is the Client’s responsibility, if necessary, to obtain from the holders of the aforementioned rights the necessary assignments, licences or authorisations and to bear the cost of the rights, royalties or indemnities relating thereto, or to modify the Products at its own expense in order to allow their free use.

17 – SUB-CONTRACTING AND CO-CONTRACTING

ADC is free to subcontract or co-contract all or part of its obligations to a third party of its choice without having to give prior notice to the Client or to request its agreement.

In the event that ADC intervenes in the framework of the supply of Products as a subcontractor of a contract, the Client undertakes to have this intervention as a subcontractor of ADC as well as its terms of payment approved by the contracting authority of the contract concerned in accordance with the terms of the contract.

18 – ADVERTISEMENT AND REFERENCES

In agreement with the Client, ADC is authorised to mention the Client’s name as a reference among its list of clients.

ADC undertakes to stop mentioning the Client’s name in its list of clients at the first request made by the Client by registered letter with receipt of delivery.

19 – PERSONAL DATA

19.1 DATA PROCESSED BY ADC FOR ITS OWN PURPOSES

Within the framework of the supply of the Products ordered by the Client, the Client may be asked to provide personal information about themselves or their employees, which ADC may use for its own purposes.

The collection of personal data is primarily necessary to enable ADC to ensure the proper fulfilment of the Client’s order for Products.

In this respect, this data may be transmitted to any processors whose services ADC may use in the fulfilment of the Product order, as well as to the tax authorities or to a court in the context of ADC’s compliance with its legal and administrative obligations or in the context of the management of a legal dispute.

Secondly, some of the data collected in this way may also be used by ADC to send e-mails and information to the Client and its employees in order to inform them of its news, or to invite them to events organised by ADC or its partners.

ADC undertakes to take all necessary precautions to preserve the security of the data communicated by the Client or its employees, or to which it may have access for its own needs, and, in particular, to prevent them from being distorted, damaged or accessed by unauthorised third parties.

ADC informs the Client and its employees, whose data may be collected in this way, that they have the right to access, modify, delete, limit, oppose and port their data in accordance with the General Data Protection Regulation (EU Regulation 2016/679). Every person also has the right not to be subject to individual decision-making based exclusively on automated processing such as profiling.

In addition, in accordance with the right of opposition applicable under the relevant regulations, the Client and his employees may also refuse to receive information e-mails from ADC concerning its news, activities and offers.

These rights may be exercised by sending an e-mail to: dpo@atelieradc.com or by post to: Atelier Des Créateurs – Rua de José Falcão 95, 4050-317 Porto, Portugal, or according to the procedure indicated in the information e-mail sent by the company ADC.

Data subjects also have the right to lodge a complaint with the CNPD (National Commission for the Protection of Data) regarding the processing of their personal data by ADC.

ADC undertakes to keep the personal data it may collect for a period not exceeding the purposes for which it processes them.

19.2 DATA PROCESSED BY ADC IN THE NAME AND ON BEHALF OF THE CLIENT

Within the framework of the supply of the Products ordered by the Client, ADC may be required to process data belonging to the Client on their behalf and for their account.

In accordance with the General Data Protection Regulation, ADC undertakes to:

In accordance with the provisions of article 17 above, for the purposes of supplying the Products ordered by the Client, ADC may call upon processors. The use of this processor may imply the transfer to the latter of the Client’s personal data, which the Client declares to accept. ADC will inform the Client of the identity of the processor(s) it will use. In this context, ADC will ensure that the processor to which it has recourse processes the data entrusted to it in compliance with the provisions of this article.

The Client undertakes, for the duration of his relationship with ADC, to comply with all the obligations applicable to him under the General Data Protection Regulation in his capacity as Data Controller.

In particular, it is the Client’s responsibility to provide the persons whose data is entrusted to ADC with the information provided for by the said Regulation, in particular the rights they have and the purposes for which their data is collected, to process this data in a fair, transparent, lawful and proportionate manner, and to take all necessary measures to preserve its confidentiality and security in the context of the processing that it carries out.

Consequently, the Client declares that it guarantees ADC against any claim or recourse that may arise from the Client’s failure to comply with its obligations.

In the event that the persons whose data is entrusted to ADC exercise one of their rights under the General Data Protection Regulation directly with ADC, ADC will transmit this request directly to the Client by any written means it deems appropriate, and the Client will be solely responsible for its processing.

ADC will notify the Client as soon as possible after becoming aware of it and by any written means it deems appropriate, of any violation of personal data which it will thus process on behalf of the Client. This notification will be accompanied by any useful documentation defined by ADC, enabling the Client, if necessary, to notify the competent supervisory authority or the persons whose data may be affected by the breach.

At the end of the fulfilment of the order for Products giving rise to the processing of the Client’s data by ADC, the latter may, in agreement with the Client:

The Client shall communicate his instructions in writing to ADC at the end of the relevant Product order and ADC shall process them as soon as possible.

20 – AMENDMENTS OF THE GENERAL CONDITIONS

ADC reserves the right to adapt or modify these General Conditions at any time. The General Conditions in force at the time will be applicable to all orders placed by the Client.

In the event that any of the terms of these General Conditions are considered illegal or unenforceable by a court decision, the other provisions shall remain in force.

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