CGV

The company Le Cinquième Sens is a company specialized in consulting and the creation of perfumes.  

The company has designed, manufactured and commercialized the olfactorium ®, a tool designed to illustrate raw materials and fragrances.

The company Le Cinquième Sens markets its products to private customers or professionals who wish to discover or have others discover the world of perfumes. 

For the purpose of regulating this marketing, the parties adhere to these General Conditions of Sale.

These General Conditions of Sale are the basis of the commercial negotiation between the seller and the buyer.

Article 1 – Definitions

1.1: The « General Terms of Sale » are the contractual framework of the relationship between the Seller and the Buyer.

1.2: The «Seller» is the company «The Cinquième Sens».

1.3: L’ «Buyer» It refers to any buyer of the Goods, whether professional or private.

The’ «Professional buyer» make this purchase for professional and commercial purposes. 

To this end, it is subject to a minimum purchase volume. This minimum will be set in the quotation.

The’ «Consumer buyer» make this purchase for the sole purpose of private use.

1.4: The « Devis » is the offer to contract issued by the Seller.

The «Order» is l’acceptance of the Devis by the Purchaser.’.

1.5: The «Order confirmation» is the firm and definitive acceptance of the Order submitted by the Buyer to the Seller.

 1.6: The «Merchandise» is the Olfactorium® and/or all the vials that can also be sold individually.

This Merchandise is an original creation of the company Cinquième Sens, which markets it in several variations.

It contains:

1.7: The « Annexes » They are all additional documents to the Quotation, the Order Form and these General Conditions of Sale.

1.8: The «Delivery» consists in the provision of the Goods to the Buyer. 

This provision consists either in the delivery of the Goods to the Buyer at a point of sale or, if applicable, in their delivery to a Carrier.

1.9: The « Transport » It is carried out by a transport provider. They can act by mail, by truck, by car, by wagons, by boats or by aircraft, and in general by any means of transport.

1.10: The «Parties» In the Contract are the Seller and the Buyer.

1.11: The « Contract » It refers to all of the present General Conditions of Sale, the Quote, the Order Confirmation and, where applicable, any Annexes relating to this commercial relationship.

The Contract constitutes the entirety of the agreements between the Parties and cancels and replaces all previous agreements, oral or written, between the parties, with respect to the subject matter of this Contract. 

Article 2 – Scope of application

2.1: These General Conditions of Sale apply to all legal relationships that may arise between the Seller and the Buyer.

2.2: These General Conditions of Sale, the Quote, the Order and, where applicable, the Annexes form a contractual package.

2.3: By placing the order, the Buyer acknowledges that these General Conditions of Sale have been communicated to him/her in advance. This communication took place concurrently with the sending of the Quotation and, where applicable, the Sales Annexes, in accordance with Article L.441-6 of the Commercial Code.

2.4: The parties accept without reservation the present General Conditions of Sale and are bound by the provisions therein.

Adhesion to these General Conditions of Sale is exclusive. Consequently, any other document such as brochures, catalogues, the website and any other means of communication issued by the Seller have only a promotional and indicative value between the Parties.

Furthermore, unless the Seller has expressly and in advance agreed to it, the Buyer may not rely on its own General Terms and Conditions of Purchase. 

Consequently, unless expressly agreed by the Seller, all other stipulations other than those contained in these General Conditions of Sale may not be invoked against the Seller.

2.5: This contractual agreement aims to define the terms and conditions under which the Buyer acquires the Goods from the Seller. 

2.6: Some rights and obligations differ depending on whether the Buyer is a professional or not. 

2.7: The Provider may, at any time, make necessary modifications to these General Conditions of Sale.

Article 3 – Quotes

3.1: The quotation is communicated by the Seller to the Buyer by any direct or indirect means and, in particular, by hand delivery, fax, email and/or simple letter.

3.2: The Quotation includes a description of the Goods as well as the delivery times and conditions. 

3.3: The Quotation includes the price of the Goods as well as, if applicable, the potential cost of transportation and other shipping fees for the Goods to the Buyer.

3.4: When the Buyer is a professional, the Quotation specifies the quantity of Goods that is necessary to complete the sale. This quantity constitutes a minimum purchase volume. 

Article 4 – The order form

4.1: The Order Form sets out the terms and conditions under which the Buyer agrees to conclude the sale.

4.2: The Order constitutes a firm and definitive acceptance of the Quotation and entails the final execution of the sale.

It is materialized by the addition of the buyer’s signature to the Bill, preceded by the mention «Valid for agreement».

When the Order is placed directly by the Buyer on the Seller’s website, the Order Confirmation corresponds to the return of the Quote displayed on the page http://www.cinquiemesens.com/xwiki/bin/view/Produits/Commander.

4.3: Upon its receipt by the Seller, the Order Confirmation constitutes acceptance of these General Conditions of Sale.

4.4: In order to be considered by the Seller, the Order Confirmation must be communicated in one of the following ways:

4.5: Upon receipt of the Order Confirmation, the Order is irrevocable. Only an express agreement from the Seller would allow for a derogation from this provision.

4.6: Upon receipt of the Order Confirmation, the Seller will proceed with invoicing. The invoice will be communicated to the Buyer by any means. 

Article 5 – Price

5.1: The selling price of the Goods listed in the Quotation is indicated in Euros excluding taxes. 

5.2: Prices take into account the tax rates applicable on the day of the Order. 

However, in the event of a change in these rates before Delivery, the Seller reserves the right to pass on this change to the selling price.

If necessary, this change will be communicated in advance and will be considered a new invoice.

5.3: Prices take into account the prices of the raw materials applicable on the day of the Order. 

However, in the event of any changes to these prices before delivery, the Seller reserves the right to pass on these changes to the selling price.

This modification will be communicated to the Buyer in the forms provided for in Article 5.2 of these General Conditions of Sale.

5.4: The price is set by the Seller based on the product ordered. This price may be set according to the specific requirements of the customer.

5.5: The price only includes the value of the Goods. 

Consequently, any additional costs such as transportation and delivery fees within the national or international territory, courier fees and any other costs incurred independently of the manufacture of the Goods shall be borne by the Purchaser and invoiced in addition by the Seller.

Article 6 – Conditions of payment of the price

6.1: The order form must be accompanied by payment of an advance of 30% of the total price of the sale.

6.2: When the Buyer is a professional, the balance of the price will be paid within 8 (eight) days from the date of sending the invoice.  

6.3: When the Buyer is an individual, the balance of the price must be paid before the Delivery of the Goods. 

6.4: Any late payment will result in the payment of penalties set at three times the legal interest rate.

Pursuant to Article L.441-6 of the Commercial Code, these penalties are due automatically from the day following the deadline. 

If applicable, these late fees will be charged directly to any refunds, rebates, or discounts granted by the seller. 

6.5: The Buyer must comply with the provisions regarding deadlines and payment terms. 

Consequently, any notice of default sent by the seller by registered letter with acknowledgment of receipt shall, pursuant to Article 1153 of the Civil Code, attract default interest at the legal interest rate to the benefit of the Seller. 

6.6: All costs and fees incurred in the collection of the amounts due shall be reimbursed to the Seller.

Article 7 – Delivery of goods

7.1: The Seller will unilaterally determine the terms of transport of the Goods in the Quotation. These terms have been expressly accepted by the Buyer.

7.2: The Goods are deemed to have been delivered as soon as they are made available to the Buyer at the Seller’s points of sale, before being loaded onto trucks, cars, wagons, boats or aircraft. 

The risks and dangers associated with the transport of the Goods are the responsibility of the Buyer, even though their cost would be established franco, FOB or CIF. 

The parties cannot derogate from this rule accepted by sending the Order Confirmation. 

Consequently, the Seller cannot be held liable for any damage or destruction of the product during its transport to the Buyer.

7.3: The transport of the Goods will be subject to additional billing. These costs are not included in the price of the Goods.

7.4: The Seller is not responsible for any delivery delays that are not attributable to its own fault.

Article 8 – Transfer of ownership

8.1: The transfer of ownership of the Goods will only be acquired upon full payment of the price of the Goods and all additional costs related to the receipt of the Goods.

8.2: Despite the application of this clause of retention of ownership, the Buyer shall bear the risks and dangers associated with the Transport of the Goods in accordance with Article 8 of these General Conditions of Sale.

8.3: The full payment of the price referred to in Article 8.1 is a condition of the transfer of ownership. 

Consequently, the full payment of the price will entail the retroactive transfer of ownership of the Goods upon Delivery. 

Article 9 – Breach of the contract

9.1: The failure to fulfill the conditions and obligations set forth in these General Conditions of Sale shall entail the immediate termination of the sales contract.

9.2: In the event of cancellation of the order by the Buyer before delivery, the Seller will retain the deposit paid for the order dispatch as penalty. 

9.3: The penalties referred to in Article 9.2 are due to the benefit of the Seller without any prior formalities, including a demand for compliance.

9.4: In the event of failure to fulfill its obligations in accordance with the terms of the Quotation, the Seller will offer the Buyer Goods whose characteristics will be equivalent to those of the Goods subject to the Order.

If the Buyer accepts, a new quotation will be sent to them and will be subject to acceptance by the Order Confirmation. These General Conditions of Sale will remain applicable to the relations between the Parties. 

Article 10 – Right of intellectual and industrial property

10.1: All the Goods manufactured and sold by the Seller constitute original works of art. As original works of art, they are protected by intellectual and industrial property rights. 

10.2: The Goods are not the result of an order for a work of the mind within the meaning of the Intellectual Property Code.

10.3 The Seller remains the sole owner of the names, marks, logos, designs and acronyms it has registered, and more generally of all the intellectual property rights it holds, as well as of all the products and services it has developed.

10.4: Obligations of the Consumer Buyer

10.4.1: The Consumer Buyer undertakes to use the Goods in a strictly private context. 

10.4.2: The Consumer Buyer is prohibited from copying, transmitting and, more generally, exploiting, including commercially, all or part of the Goods without the express and prior consent of the Seller.

10.4.3: In general, the Consumer Buyer is prohibited from taking any advantage or infringing on any intellectual and industrial property rights of the Seller, and in particular its brand, its logo and in general any element protected by its rights. 

10.4.4: The reproduction, distribution or public use of the Goods without the express and prior consent of the Seller constitutes counterfeiting and is subject to the sanctions that are associated with it.

10.5: Obligations of the professional buyer

10.5.1: In order to respect the intellectual and industrial property rights of the Seller, the Buyer undertakes to leave the Seller’s brand and logo clearly visible on the Goods.

The Buyer also undertakes to indicate the Seller’s brand and logo on all his communication materials (brochure, prospectus, website, etc.).

10.5.2: The Professional Buyer is prohibited from copying, transmitting and, more generally, exploiting all or part of the Goods without the express and prior consent of the Seller.

Consequently, the Professional Buyer must, when submitting their request, inform the Seller of the use they intend to make of the Goods. The Professional Buyer is bound by this information.

10.5.3: The Seller may refuse the use of the Goods for purposes that could harm its image or its brand, without giving any reason whatsoever.

10.5.4: The use by the Professional Buyer of the Goods bearing the Seller’s brand and logo or any other element protected by an intellectual or industrial property right does not confer any rights on the Buyer. 

10.5.5: The reproduction, distribution or public use of the Goods without the express and prior consent of the Seller constitutes counterfeiting and is subject to the corresponding sanctions.

10.5.7: Any contravention of the provisions of Article 10 of these General Conditions of Sale constitutes, in addition to the provisions of the Intellectual Property Code, an act of unfair competition.

Consequently, the professional buyer who commits such an act may be subject to legal proceedings. 

10.6: Any failure to comply with the provisions of articles 10.1 to 10.5.7 of these General Conditions of Sale shall result in the payment of a lump sum as a penalty clause to the Seller in the amount of 10,000 Euros.

Article 11 – Obligations of non-competition

11.1: The non-competition obligation only applies to professional buyers who are engaged in the same or a similar activity to that of the Seller and wish to operate the olfactory organ.

11.2: The non-competition clause is limited to the European territory and for a period of two years from the date of purchase. It applies to any professional specializing in training, animation, consulting, and creation in the perfume and cosmetics sector.

11.3: The non-competition obligation aims to protect the legitimate interests of the Seller, notably the use of its brand products, the protection of its industrial and intellectual property rights and its clientele.

The perfume and cosmetics sector is a highly competitive sector marked by a strong development of training. Consequently, this protection is justified and necessary.

Therefore, this clause aims to protect the Seller from any act of unfair competition by using its commercial tools for purposes identical to its own commercial activity, and to protect its customers from any possible appropriation by other professionals.

Finally, this clause is necessary to protect the reputation and renown of the Seller in its sector of activity.

11.4: The Professional Buyer is prohibited from exploiting the olfactorium® or any other goods sold (bottles, raw materials) for their own account or for the account of others in any form whatsoever, directly or indirectly, for purposes identical to those of the Seller.

Consequently, the use of the olfactorium® or any other product sold (vials, raw materials) for training, animation, consulting, and the creation of perfumes and cosmetics must differ from the use made by the Seller. Furthermore, this use must mention the Seller’s quality as the designer of the tool used. 

Consequently, this limitation is strictly proportionate and necessary to protect the legitimate interests of the Seller. 

11.5: Any failure to comply with the provisions of Article 11 of these General Conditions of Sale shall result in the payment of a lump sum as a penalty clause to the benefit of the Seller in the amount of 10,000 Euros.

11.6: The Seller reserves the right to initiate legal proceedings to obtain compensation for the damages resulting from the breach of Article 11 and any act of unfair competition. 

Article 12 – Information regarding the Buyer

12.1: The personal information provided by the Buyer to the Seller in the context of and in the execution of the sale may be used and communicated by the Seller, including to its partners, for the purposes of carrying out the sale.

Thus, the Order Form constitutes an express recognition and acceptance by the Seller of the right to use and communicate these data to its partners. 

12.2: The Buyer may notify the Seller of their objection to any form of data communication. This notification must be made by registered letter with acknowledgment of receipt addressed to the Seller’s registered office. 

12.3: The Buyer has the right to access and rectify the information concerning them. They exercise this right, by simple request to the Seller, at any time. 

Article 13 – Guarantee and Responsibility

13.1: Warranty related to the manufacture and use of the Goods

13.1.1: The Seller guarantees the proper functioning of the Goods under normal conditions of use or under conditions that would be reasonably foreseeable. 

Any use not in accordance with the intended purpose of the Goods is excluded from these warranties.

13.1.2: The use of the Goods must be carried out within the limits and conditions stipulated in the explanatory booklet issued by the Seller. 

The use of the Goods for purposes other than those specified in the brochure issued by the Seller is expressly excluded from the Seller’s warranty.

13.2: Liability of the Seller

13.2.1: In accordance with the provisions of Article 8 of these General Conditions of Sale, the Seller is only liable for the Goods until they are delivered. 

The damages suffered during transport are not the responsibility of the Seller; only the Buyer shall bear the risks associated with the transport of the Goods.

13.2.2: The Commodity must not be used for children’s games or by persons who do not have the capacity to discern it properly without running a risk.

The Seller has informed the Buyer of the risks posed by improper use or by persons lacking sufficient discernment. 

Consequently, the Seller cannot be held liable for the occurrence of damage resulting from the improper use of the Goods or the use by persons lacking sufficient discernment. 

13.2.3: The Seller has informed the Buyer about the dangers that may result from the products concerned, particularly from interference or projection into the eyes of the contents of the vials.

Consequently, the Seller cannot be held liable for damages resulting from improper use.

13.3: Liability of the Buyer

13.3.1: The Buyer is responsible for the use of the product in accordance with its intended purpose as stated in the explanatory booklet and any other documents provided by the Seller, such as the website, brochures, and the user manual.

13.3.2: The Buyer expressly undertakes to comply with the specified and communicated usage requirements and procedures by the Seller.

13.3.3: The Buyer undertakes to use the Goods in strict compliance with the reputation and renown of the Seller’s brand.

Any contrary behavior that has damaging consequences for the Seller’s image could result in the Buyer being held liable. 

13.3.4: The Professional Buyer undertakes to comply with all the provisions of these General Conditions of Sale, including, where applicable, Article 11.

Failure to comply with these provisions would be liable to affect his contractual liability. 

13.4: Exclusion of liability

The Seller is not responsible for the failure to perform or the late performance of their obligations resulting from a case of force majeure, a technical problem, a network failure, regulations or requirements of the public authorities, strikes, including walkouts and strikes of zeal, and any other event beyond their control.

Article 14 – Claims 

14.1: The defect of the goods must be notified to the Seller. 

This claim can be made to the Seller through its website. www.cinquiemesens.com or by registered letter with acknowledgment of receipt sent to the Seller’s registered office. 

14.2: The Seller undertakes to respond to this claim within the shortest possible time. This period may not exceed fifteen days from the receipt of the claim.

Article 15- Assignment

The Parties may not assign or transfer any right or obligation arising from this Agreement by any means whatsoever without the prior consent of the other Party.

Article 16 – Applicable law and attribution of jurisdiction

16.1 : This Contract is subject to French law.

16.2: In accordance with the provisions of Article 111 of the Civil Code, the parties declare to elect domicile at the Seller’s registered office for the application of these General Conditions of Sale and any dispute arising therefrom.

16.3: In the event of a dispute regarding the interpretation, execution or termination of these General Conditions of Sale, the Parties undertake to resolve their dispute amicably. 

Otherwise, the dispute will be submitted by the more diligent party to the competent courts of the city of PARIS.