ARTICLE 1. GENERAL
These General Terms and Conditions for the Manufacture of Private Label Products apply to all Product Orders placed with Martin Sengelé (hereinafter the ” Manufacturer “) by its Customers, for delivery in the Territory, notwithstanding any clause or condition to the contrary, listing contract and/or group and/or brand contract issued by the Customer or its group.
These General Terms and Conditions of Private Label Manufacturing take effect on January1, 2024.
The General Manufacturing Conditions are systematically sent or handed to each Customer. In the case of groups federating affiliated independent members or, more generally, in the case of a negotiation mandate entrusted to the Customer, the present General Manufacturing Conditions for private label products will be sent to the group’s central office, which undertakes to bring them to the attention of all its affiliates and/or principals, to whom they will then be enforceable.
Placing an Order with the Manufacturer implies the Customer’s full and unreserved acceptance of these General Terms and Conditions for the Manufacture of Private Label Products.
Any conditions to the contrary and, in particular, any general or special conditions issued by the Customer or its group, including any conditions of purchase and order forms, are consequently unenforceable against the Manufacturer, except with the latter’s prior written acceptance.
If a contract for the manufacture of private label products is concluded with the Customer, the General Manufacturing Conditions shall form an integral part thereof, and any possible modification or addition to the terms of these General Manufacturing Conditions shall be accepted in advance by the Manufacturer and formalized in this contract.
The fact that the Manufacturer does not take advantage, at a given moment, of any of the provisions of the present General Conditions of Manufacture of private label products cannot be interpreted by the Customer as a renunciation by the Manufacturer to take advantage of them at a later date.
These General Terms and Conditions for the Manufacture of Private Label Products may be modified at any time, it being understood that any such modification will be notified to the Customer one (1) month prior to its implementation, unless the modification affects the price of the Products (see article ” Prices ” below).
ARTICLE 2. DEFINITIONS
Throughout these General Terms and Conditions of Private Label Manufacture, the terms listed below shall have the meanings given to them by the following definitions:
- Customer: retail distributor with a commercial relationship with the Manufacturer.
- Order: the Customer’s offer to purchase Products from the Manufacturer.
- Manufacturing contract: contract concluded between the Parties concerning the manufacture of Products by the Manufacturer on behalf of the Customer, concluded in application of article L.441-7 of the French Commercial Code.
- Manufacturer : MARTIN SENGELE Produits Laitiers S.A.S.U. – 17 rue du Sendenbach, FR-68380 Muhlbach-sur-Munster.
- Party(ies): the Manufacturer and/or the Customer.
- Products: all products manufactured by the Manufacturer according to criteria and technical specifications defined by mutual agreement between the Parties in a specification and sold under a brand owned by the Customer.
- Taxes and Contributions: Citeo contribution or any other national or regional tax or contribution, existing or not yet existing, applicable to the Products.
- Territory: Metropolitan France, Corsica, Drom-Com, and all other French territories.
ARTICLE 3. ORDERS
Orders will be sent to the Manufacturer by mail, e-mail, fax or EDI as described in the article “EDI” below, or by any other means chosen by the Customer and previously accepted by the Manufacturer.
Orders will only become final after acceptance by the Manufacturer. Orders must be sent to the Manufacturer no later than 5 working days before the desired delivery date and before 10:00 am.
The Manufacturer reserves the right to modify or refuse Orders within 48 hours (excluding weekends and public holidays) of their receipt by the Manufacturer. In the event of refusal within the aforementioned period, the Manufacturer shall not be held liable by the Customer in any way whatsoever.
No Order can be shipped below the minimum Order quantity, which is the full pallet.
Customer Orders scheduled for delivery on the same day at the same location will be delivered at the same time as part of a single delivery.
No Order may be cancelled or modified by the Customer without the Manufacturer’s prior written consent.
The Manufacturer reserves the right to require the Customer to pay a deposit on the total invoiced amount of the Order. To this end, the Manufacturer will send the Customer a pro-forma invoice specifying the amount of the deposit. The Order will only be considered firm and definitive once the Manufacturer has received the down payment.
The Manufacturer reserves the right to refuse any Order in the event of a breach by the Customer of any of its obligations and, more generally, to refuse any Order that is abnormal for any reason whatsoever, or placed in bad faith. This applies in particular to Orders that are clearly excessive, given the Customer’s usual Order volume. In such cases, the Manufacturer must avoid production fluctuations and guarantee the regularity of its logistics flows. Similarly, repeated Orders for Products that are out of stock will be considered as having been placed in bad faith. Please note that the Manufacturer may be legally obliged to refuse certain Orders, in accordance with current health regulations.
If the totality of the Order cannot be honoured due to a partial or total shortage of which the Customer has been informed, this shall not justify cancellation of the Order nor give rise to penalties or compensation. Likewise, in the event of significant variations in the cost of raw materials and/or consumables and/or the availability of means of transportation that could result in the unavailability of Products, the Manufacturer will notify the Customer. In such a case, no penalty or indemnity will be charged to the Manufacturer.
ARTICLE 4. PRODUCTION AND AVAILABILITY OF PRODUCTS
The Manufacturer undertakes to supply Products (including packaging) in strict accordance with the specifications previously agreed between the Parties. In the event of a modification of the specifications by the Customer, the Manufacturer must be able to use up stocks of Products and, if applicable, packaging conforming to the previous specifications before delivering to the Customer Products conforming to the new specifications.
The Manufacturer will provide the Customer with a stock of Products in accordance with the forecast volume agreed with the Customer. This provisional volume must be annual and must be communicated to the Manufacturer at least one (1) month before the beginning of each quarter. Any variation in volume must be communicated to the Manufacturer in writing no later than fifteen (15) days prior to its application. In accordance with the provisions of Article L.441-7 of the French Commercial Code, the forecast volume agreed between the Parties must be included in the Manufacturing Contract.
The Manufacturer cannot be held responsible for any shortage of Products if the Customer has not provided the Manufacturer with a supply forecast in advance. In particular, the Manufacturer will not be liable to the Customer for any penalty if the Products are not available due to the absence of a supply forecast.
In accordance with Article L.441-7 of the French Commercial Code, in the event of a call for tenders, the Customer must commit to the forecast volume of Products it wishes to have produced.
ARTICLE 5. DELIVERY
According to the agreement of the Parties, “delivery” shall mean (i) the provision of the Products to the Customer on the transport vehicle at the destination agreed between the Parties or (ii) the provision of the Products at the Manufacturer’s warehouse.
The delivery times specified in the Orders are given as an indication only. The Manufacturer will make every effort to meet the delivery deadlines agreed between the Parties.
Late deliveries will not give rise to penalties, order cancellations, refusal of delivery or withholding of payment of invoices, except with the prior written agreement of the Manufacturer and notwithstanding the existence of any clauses to the contrary in the Customer’s terms and conditions of purchase. Furthermore, it is hereby specified that a delay in delivery of a few hours which results in delivery taking place on the agreed day, within the limits of the opening hours of the Customer’s logistics platform, shall not justify a refusal or return of Products by the Customer, in accordance with the DGCCRF Guidelines on Logistics Penalties of September 21, 2023.
In any event, in accordance with the article “Penalties” below, only the prejudice actually suffered by the Customer, demonstrated and evaluated, may be the subject of a claim for compensation, which may in any event only be made after negotiation with the Manufacturer and agreement by both Parties.
The Manufacturer is furthermore fully released from its obligation to deliver in the event of force majeure, as defined under the article “Exoneration of liability in the event of force majeure” below, and any delivery deadlines accepted by the Manufacturer are automatically suspended by any event beyond the Manufacturer’s control that results in a delay in delivery.
Any change to an Order during its execution, even if accepted by the Manufacturer, will result in an extension of the delivery date, according to the terms and conditions communicated by the Manufacturer to the Customer.
In any event, on-time delivery can only be made if the Customer is up to date with its obligations towards the Manufacturer, whatever the cause.
The Manufacturer is authorized to make deliveries in whole or in part, without incurring penalties of any kind. Any remaining stock will only be delivered at the Customer’s express request.
In accordance with Article L.441-7 of the French Commercial Code, the Manufacturing Contract must provide for a system of alerts and periodic exchanges of information between the Manufacturer and the Customer in order to optimize supply conditions and limit the risk of stock shortages.
ARTICLE 6. ACCEPTANCE AND TRANSFER OF RISK
In the case of carriage-paid deliveries, the transfer of risks takes place on delivery of the Products to the Customer’s warehouses, before the start of unloading operations.
It is the sole responsibility of the consignee receiving the Products to check whether the contract of carriage has been properly performed and, if not, to take all appropriate measures to preserve recourse against the carrier.
If packages are missing or arrive damaged, or for any other reason, he must :
- Immediately establish the nature and extent of the damage on the delivery note,
- Confirm to the carrier, at the latest within three (3) days, not including public holidays, following receipt of the Products transported, the reasoned protest by registered letter required under penalty of foreclosure by article L.133-3 of the French Commercial Code.
These two conditions are both absolutely necessary for the carrier to be held liable. The Customer must simultaneously send to the Manufacturer a photocopy of (i) the registered letter sent to the carrier and (ii) the freight bill. In the event of non-compliance with this procedure, any consequences will be borne solely by the Customer to whom the Products are sent.
In the case of outbound delivery, the Customer assumes the role of shipper and consignee of the Products, within the meaning of Article L.132-8 of the French Commercial Code. Consequently, the Manufacturer will in no case be considered as a party to the contract of carriage of the Products. The Customer shall be personally responsible for all claims against the carriers he/she appoints, in the event of shortages, damage, delays, etc.
The risks relating to the Products are transferred to the Customer as soon as the Products are made available in the Manufacturer’s warehouses.
In all cases, claims for non-conformity must be made by the Customer to the Manufacturer by registered letter with acknowledgement of receipt within three (3) days of delivery of the Products.
In the event that the Customer fails to take delivery of the Products, without due justification, or is late in taking delivery of the Products, the Customer shall bear all risks and shall, in any event, pay the price of the Order. In addition, the Manufacturer will have the right to store the Products at the Customer’s expense and to claim reimbursement of shipping costs, it being specified that the Manufacturer will have the right to cancel the Order and proceed with the sale of the Products, without prejudice to the payment of damages to the Manufacturer for any prejudice it may suffer. In the case of Products sold under a brand name belonging to the Customer, these will be resold after all visual distinctive signs have been removed.
For Products sold in packaged form, weights and measures at the point of delivery are the reference quantities.
ARTICLE 7. RETURNS
No Product may be returned without the prior written consent of the Manufacturer. Any Product returned without this agreement will be held at the Customer’s disposal and will not give rise to a credit note. The cost of transporting returned Products will be borne by the Customer, except in the case of proven non-conformity. In any event, returned Products will travel at the Customer’s risk.
ARTICLE 8. EDI
The use of the EDI system in the context of relations between the Manufacturer and the Customer must be accepted in advance by the Manufacturer and will be subject to the signature of an EDI agreement in order to govern EDI exchanges. In the absence of such an agreement, no EDI order can be taken into account.
The Manufacturer offers a single EDI transmission system, the classic Web EDI system.
In any event, the use of the EDI system shall not give rise to the granting by the Manufacturer of any financial advantage to the Customer.
Furthermore, in the event of a technical malfunction of the EDI system beyond the Manufacturer’s control, no penalty will be imposed on the Manufacturer, in particular in the event of a delay in DESADV (electronic dispatch notice) or an absent DESADV. The same will apply if the EDI system has not been correctly configured and the Customer does not inform the Manufacturer at the time of the first Order that the DESADV has not been received.
ARTICLE 9. WARRANTY – LIABILITY
The Products delivered by the Manufacturer comply with the required specifications and with the legislation, regulations and standards in force in France.
To be admissible, any claim relating to apparent defects must be made in accordance with the conditions set out in the article “Acceptance and Transfer of Risk” of these General Terms and Conditions of Product Manufacture.
In the case of hidden defects, the Customer must inform the Manufacturer by registered letter with acknowledgement of receipt within forty-eight (48) hours of the discovery of the hidden defect.
It is the Customer’s responsibility to provide proof of any defects or non-conformities. The Products delivered must be kept at the Manufacturer’s disposal, in compliance with the rules of conservation and hygiene, and under no circumstances may they be destroyed without the Manufacturer’s prior written consent. In any event, the Customer will refrain from intervening to bring the Products back into conformity or having a third party intervene for this purpose.
The filing of a claim, whatever the cause, and even if it is made within the prescribed time limit, cannot allow the Customer to delay the payment of a sum that has fallen due.
In the event of defect or non-conformity of the Products sold, the Manufacturer cannot be held liable beyond the replacement or reimbursement of the Products recognized as non-conforming or missing. In particular, the Manufacturer shall not be liable for any indirect or consequential damages, costs or losses of any kind, such as loss of profit, revenue, goodwill, etc., and shall not be liable for any loss or damage of any kind whatsoever.
Furthermore, the Manufacturer shall not be held liable if the Products sold are transported, unloaded or stored by the Customer in abnormal conditions or conditions incompatible with their nature.
Similarly, compliance with the use-by date (D.L.C.) is the responsibility of the Customer, who is solely responsible for its management and stock rotation.
Furthermore, the Manufacturer cannot be held liable for the Customer’s failure to comply with the rules applicable to the food trade in general (compliance by the Customer with minimum durability dates (M.D.D.) and use-by dates (U.T.D.), obligations relating to the traceability of Products, compliance with the cold chain, etc.). In particular, the Manufacturer cannot be held responsible for the possession and/or distribution of Products that have expired or deteriorated.
In order to guarantee the quality of the Products, the Manufacturer reserves the right to take back, in any place whatsoever, Products whose quality is in doubt. The Customer agrees to assist the Manufacturer in these operations by implementing the means necessary to allow the Manufacturer to take back the Products, in particular by keeping an inventory of the Products showing the identification number of the pallets and/or batches of disputed Products and their location.
Lastly, in accordance with article R.541-173 of the French Environment Code, the unique identifier assigned to the Manufacturer by ADEME is as follows: n°65617 (CITEO) – FR211346_01KCER.
ARTICLE 10. AUDITS
Any audit requested by the Customer will be subject to the Manufacturer’s prior written agreement and will be carried out according to procedures to be defined in advance and by mutual agreement between the Manufacturer and the Customer.
In any event, the Customer agrees to notify the Manufacturer fifteen (15) business days prior to the date of the desired audit. Audits will take place on the Manufacturer’s working days and during the Manufacturer’s working hours. Audits are carried out at the Customer’s exclusive expense. A copy of the audit report will be communicated to the Manufacturer in a contradictory manner.
ARTICLE 11. EXEMPTION FROM LIABILITY IN THE EVENT OF FORCE MAJEURE
the occurrence of a case of force majeure, understood as any event beyond its control which could not reasonably have been foreseen at the time the Manufacturing Contract was concluded or the Order placed, and whose effects cannot be avoided by appropriate measures, in accordance with article 1218 of the French Civil Code.
It is specified that the following events will be considered as cases of force majeure, without the Manufacturer having to establish that they have the characteristics defined in article 1218 of the French Civil Code:
- war (declared or undeclared), regardless of the countries involved in the conflict affecting the manufacture of the Products, civil war, riots and revolution, acts of piracy,
- sabotage, requisition, confiscation, nationalization, embargo and expropriation,
- natural disaster such as violent storm, cyclone, earthquake, tidal wave, flood, destruction by lightning,
- epidemic or pandemic, i.e. the development and spread of a contagious disease on national or international territory,
- measures taken by the competent authorities, in France or abroad, to limit the spread of an epidemic or pandemic (i) as part of a declaration of a state of health emergency in the event of a health disaster which, by its nature and severity, endangers the health of the population, or (ii) outside any declaration of a state of health emergency, such as the prohibition and/or restriction of movement of people and vehicles, the confinement of towns or certain parts of them, the temporary closure of one or more categories of establishments open to the public (businesses, shops, etc.), the regulation of the conditions of movement of people and vehicles, and the prohibition and/or restriction of movement of people and vehicles.), regulation of access to and presence in one or more categories of establishments open to the public, etc. ,
- accident, including tooling, machine breakdown, explosion, fire, destruction of machines, plants and installations of any kind,
- interruption or delay in transport, failure of any carrier whatsoever, impossibility for the Manufacturer to be supplied for any reason whatsoever,
- shortage of raw materials, packaging, or any other element necessary for the production or packaging of Products (in particular disruption of energy flows such as electricity, gas, etc.), quality defect or poor quality of raw materials or packaging,
- boycotts, strikes and lockouts in any form whatsoever, work-to-rule strikes, occupation of plants and premises, work stoppages occurring on the Manufacturer’s premises,
- infection of the computer system by a virus, cyberattack on the Manufacturer’s computer servers,
- act of authority, whether licit or illicit, arbitrary or not.
In the event of force majeure as defined in the present article, the Manufacturer will notify the Customer as soon as possible by e-mail, confirmed by registered letter with acknowledgement of receipt. The Manufacturer’s obligations will be suspended by operation of law for the time during which it is unable to perform them due to the case of force majeure invoked.
In the event that the Force Majeure Event continues to produce its effects more than two (2) months after the Manufacturer notifies the Customer of the occurrence of the Force Majeure Event, either Party shall be entitled to cancel the Order(s) concerned without either Party being entitled to claim damages.
ARTICLE 12. RETENTION OF TITLE CLAUSE
Delivered Products remain the property of the Manufacturer until invoices have been paid in full, in accordance with articles 2367 to 2372 of the French Civil Code. In this respect, the remittance of a bill of exchange, bank or postal check or any other document creating an obligation to pay does not constitute payment within the meaning of this clause.
Payment will only be considered to have been made once the Manufacturer has received the payment.
If the Products subject to the retention of title have been resold by the Customer, the Manufacturer’s claim will automatically be transferred to the claim for the price of the Products thus sold by the Customer.
The Customer hereby assigns to the Manufacturer all claims arising from the resale of unpaid Products subject to retention of title.
In the event of safeguard, recovery or liquidation proceedings against the Customer, the Products may be claimed in accordance with the legal and/or regulatory provisions in force.
In the event of partial or total non-payment, Products in stock will be deemed to correspond to unpaid receivables. In accordance with articles L.624-9 and L.624-16 of the French Commercial Code, notwithstanding any clause to the contrary, the present retention of title clause is enforceable against the Customer.
The Manufacturer is hereby authorized by the Customer, who accepts it, to draw up an inventory and/or sequestrate the unpaid Products held by the Manufacturer. All deposits previously paid will be retained in their entirety by the Manufacturer as a penalty clause.
The Customer will thus be held solely responsible for all risks of deterioration, loss, partial or total destruction, whatever the cause of the damage, even if it is a case of force majeure as defined in the article “Exoneration of liability in case of force majeure” above. The Customer must therefore insure the Products under retention of title, stipulate in the insurance policy that any indemnity will be paid directly to the Manufacturer and provide the Manufacturer, at its first request, with proof of the insurance taken out.
The Customer undertakes to inform any third party, in particular in the event of seizure, of the fact that the Products subject to a retention of title clause belong to the Manufacturer, and to inform the Manufacturer immediately of any seizure or similar operation.
ARTICLE 13. PRICES
13.1 – INDICATORS
In accordance with the provisions of article L. 443-4 of the French Commercial Code and the DGCCRF guidelines of July 27, 2020 on the consideration of “indicators” in the contractual chain, it is specified that the prices of the Products have been defined taking into account in particular the VESPER indicators which reflect the price of the main agricultural raw materials used in the composition of the Products and their evolution.
In concrete terms, Product prices have been defined to take into account: (i) the cost of the main raw materials used in the composition of the Products – with reference to the latest known indicators, i.e. those for the month of the period(cf. appendix 1) – and all the Manufacturer’s other expenses (the cost of the raw material accounting for only part of the cost of the Products) and (ii) the margin required to enable him to continue investing.
13.2 – PRODUCT PRICES / PRODUCT PRICE CHANGES
The Products will be invoiced at the prices agreed between the Parties.
In accordance with the provisions of Article L. 441-7 of the French Commercial Code, prices must be defined in such a way as to take into account the innovative efforts made by the Manufacturer at the Customer’s request.
Prices do not include taxes or contributions. Any taxes, duties, contributions or other services to be paid in application of the regulations in force shall be borne by the Customer.
These prices are carriage paid for deliveries in mainland France for a minimum of two (2) pallet layers. It is the Customer’s responsibility to organize his Orders, insofar as possible, to respect the carriage-free rate.
The Manufacturer reserves the right to modify Product prices at any time, subject to informing the Customer at least one (1) month in advance. This period will be reduced to eight (8) days in the event of an exceptional increase in the cost of manufacturing and marketing the Products, in particular : increases in the price of raw agricultural materials, producers’ production costs, prices observed on the markets on which the Manufacturer operates, technological developments, input costs, labor costs, packaging costs, transportation costs, energy costs, or any changes decided by the legislator and likely to have an impact on the Manufacturer’s production costs, it being the Manufacturer’s responsibility to justify this exceptional increase on the basis of objective elements that it will bring to the Customer’s attention. Any Customer who places an Order after the new prices have come into effect will be deemed to have accepted the new prices, which will prevail over any conflicting information that may appear in the Order or in any contractual documents that may exist between the Manufacturer and the Customer.
In any event, and in accordance with the provisions of Article L.441-7 I bis A of the French Commercial Code, when the Manufacturing Contract covers a period of more than twelve (12) months, the price of the Products must be renegotiated annually, on a fixed date, to take account of fluctuations in the prices of the raw materials used in the composition of the Products. Negotiations will not cover the proportion of the prices proposed by the Manufacturer at the time of renegotiation represented by the price of agricultural raw materials and processed products composed of more than 50% of agricultural raw materials used in the composition of the Products.
Finally, and in application of the provisions of Article L.441-7 of the French Commercial Code, the Manufacturing Contract must include a clause allocating, between the Manufacturer and the Customer, the various additional costs arising during the performance of the Manufacturing Contract.
13.3 – NON-NEGOTIABILITY
In accordance with article L.441-7, I of the French Commercial Code, it is hereby specified that the negotiation of Product prices will not cover the portion of the price proposed by the Manufacturer that includes the price of agricultural raw materials and processed products mentioned in I of article L.441-1-1 of the French Commercial Code.
13.4 – PRODUCT PRICE RENEGOTIATION CLAUSE
Pursuant to the provisions of article L.441-8 of the French Commercial Code, the price of the Products may be renegotiated, at the request of the most diligent Party, in the event of fluctuations in the price of agricultural and food raw materials, and agricultural and food products, energy costs, transport and materials used in the composition of packaging, affecting the production costs of the Products. The triggering conditions and the timeframe are specified in Appendix 1 to these General Terms and Conditions of Product Manufacture.
13.5 – AUTOMATIC PRICE REVISION CLAUSE
In accordance with the provisions of article L.441-7 of the French Commercial Code, the Manufacturing Contract must include an automatic price revision clause based on variations in the cost of agricultural raw materials, or processed products subject to I of article L.441- 1-1 of the French Commercial Code, either upwards or downwards, used in the composition of the Products.
ARTICLE 14. TERMS OF PAYMENT
Invoices are payable at the Manufacturer’s head office by bank transfer, thirty (30) days after the delivery date or thirty (30) days after the end of the delivery decade in the case of periodic invoices, in accordance with the provisions of Article L.441-11, II, 1° of the French Commercial Code.
No discount will be granted for early payment, including cash, unless expressly agreed in writing by the Manufacturer.
Only payment on the agreed due date is a discharge. In accordance with the provisions of article L.441-10 of the French Commercial Code, any total or partial failure by the Customer to meet its payment obligations, or any delay in payment, will automatically result in the payment, without reminder, of a penalty equal to three times the legal interest rate in force on the due date. Likewise, in the event of late payment, the Manufacturer will be required to pay a fixed indemnity of forty (40) euros for collection costs, in accordance with Articles L.441-10 and D.441-5 of the French Commercial Code, in addition to the above-mentioned late payment penalties. It is specified that this lump-sum indemnity does not limit the amount of other expenses that may be incurred by the Manufacturer for the purpose of recovering its invoices.
Interest will begin to accrue from the date of payment shown on the invoice and will continue to accrue until full payment of all sums due to the Manufacturer.
Any month begun will be due in full. The Manufacturer will be entitled to deduct the said late payment penalties from any price reduction due to the Customer.
In the event of non-payment, even partial, of a single due date for any of the deliveries, the Manufacturer reserves the right to demand immediate payment of all sums owed by the Customer for any reason whatsoever. In the event of payment by bill of exchange, failure to return the bill of exchange will be considered as a refusal to accept the bill of exchange, which will be considered as a default of payment.
No payment may be offset at the Customer’s sole initiative, in particular in the event of an allegation by the Customer of late delivery or non-conformity of the Product delivered, the Manufacturer’s prior written agreement being essential, regardless of any provisions to the contrary that may appear in contractual documents issued by the Customer. Any compensation not authorized by the Manufacturer will be considered as a default of payment, authorizing the Manufacturer to refuse any new Order and to immediately suspend current deliveries after having informed the Customer.
In the event of delay or total or partial non-fulfilment by the Customer of its payment obligations, the Manufacturer may notify the Customer, by registered letter with acknowledgement of receipt, of the suspension of its deliveries. These provisions will cease to have effect upon full payment of outstanding invoices, the Customer then de facto accepting the new delivery deadlines notified to him by the Manufacturer. In any case, the Manufacturer will have the right not to deliver any new Orders until the Customer has paid in full the amounts due in principal, costs, interest and accessories.
In the event of notorious insolvency, safeguard proceedings, receivership or judicial liquidation, the Manufacturer may, subject to the mandatory provisions of Articles L.622-13, L.631-14 and L. 641-11-1 of the French Commercial Code, terminate the Manufacturing Contract in its entirety by simple notice given to the Customer by registered letter with acknowledgement of receipt, without further formality and without prejudice to the exercise of all its other rights.
Any deterioration in the customer’s credit rating may, at any time, justify, depending on the risks incurred, the setting of a ceiling on any overdraft authorized for the customer, the requirement of certain payment deadlines, cash settlement of current and future Orders and certain guarantees.
This will be the case, for example, if the sale, lease management, pledging or contribution of the customer’s business or some of its components, or a change in the control or structure of the company or in the person of its manager, is likely to have an adverse effect on the customer’s credit.
In accordance with the provisions of Article L.622-7 of the French Commercial Code (to which Articles L.631-14 and L.641-3 of the same Code refer), by express agreement, in the event of the opening of safeguard proceedings, receivership or liquidation proceedings against the Customer, the unpaid amount of any invoices issued by the Customer for services rendered to the Manufacturer and any price reductions due will be offset against any amounts still owing to the Manufacturer, which will become immediately payable.
ARTICLE 15. INTELLECTUAL PROPERTY RIGHTS
The Customer acknowledges that all rights, including intellectual property rights, inherent to the Products and their manufacture are the exclusive property of the Manufacturer or the group to which it belongs, including all recipes, tricks of the trade, formulas, trade secrets, know-how, processes, copyrights, drawings, models, patents, developments and more generally all creations made within the framework of the realization and execution of Orders, even those not protected by an exclusive right. The same applies to trademarks, logos, packaging, presentations, wrapping and packaging related to the Products, with the exception, where applicable, of trademarks and other distinctive signs belonging to the Customer for which the Customer grants the Manufacturer a free and non-exclusive license for use on the Products, their packaging and on any other related document or medium.
Consequently, the Customer undertakes to respect these rights and refrains from claiming any right whatsoever over the Products, even if he has contributed to their modification or improvement.
The Customer shall also refrain from seeking to imitate them, reproduce them or have them imitated or reproduced by third parties, directly or indirectly, in whole or in part, for the entire duration of their protection.
ARTICLE 16. STOCKS
The Manufacturer establishes inventories (raw materials, packaging, finished products…) in order to honor its commitments and meet the Customer’s needs.
Consequently, in the event of termination of the Manufacturing Agreement, for any reason whatsoever, the Manufacturer and the Customer agree as follows:
– Either the residual stock of (i) specific raw materials used in the composition of the Products, (ii) Products and (iii) packaging bearing the brand name specifically provided for the execution of the Manufacturing Contract, will be repurchased by the Customer on the effective date of the termination of the Manufacturing Contract, it being specified that the Products will be repurchased at their selling price and the aforementioned raw materials, as well as their packaging, at their cost price returned to the Manufacturer’s warehouses.
For the purpose of acquiring residual inventory, the Manufacturer will send the Customer, upon request, an inventory statement of the Products, raw materials and packaging concerned.
– Or the Manufacturing Contract will continue for a period of thirteen (13) weeks from the scheduled effective termination date of the Manufacturing Contract to allow for the disposal of stocks of (i) specific raw materials used in the composition of the Products, (ii) Products and (iii) packaging bearing the brand name specifically provided for the execution of the Manufacturing Contract.
ARTICLE 17. EXCLUSION OF ALL PREDETERMINED PENALTIES
No pre-determined penalty, flat-rate or otherwise, for any reason whatsoever, will be accepted by the Manufacturer, except with its prior written consent, and notwithstanding any clauses or provisions to the contrary that may appear in purchasing conditions, referencing contracts, annual business plans, logistical conditions, special agreements, or any other document issued by the Customer.
In the event of a breach by the Manufacturer of any of its obligations, it is reminded that only the prejudice actually suffered, previously demonstrated and evaluated by the Customer, may give rise to a claim for compensation.
With regard more specifically to logistics penalties, and in accordance with the new article L.441-17 of the French Commercial Code, and the DGCCRF Guidelines on logistics penalties of September 21, 2023, no penalty for non-performance by the Manufacturer of its contractual commitments may be invoiced to the Manufacturer if :
- (i) The Customer has not provided proof of breach of contract;
- (ii) The Customer has not provided proof that the Products are out of stock on the shelves and in the warehouse, or by derogation, of the existence of a loss and, in any event, of its valuation;
- (iii) The Customer has not taken into account a sufficient margin of error with respect to delivery volumes over a period of more than one (1) month; The penalty has not been subject to a contradictory analysis procedure prior to any penalty invoice being sent, including a sufficient period of time to allow the Manufacturer to analyze the nature of the alleged breach and the reality of the prejudice suffered;
- (iv) The penalty is not proportionate to the prejudice suffered with regard to the contractual breach within the limit of a ceiling equivalent to 2% of the value of the Products of the Order falling within the category of Products concerned by the contractual breach; in accordance with the aforementioned Guidelines, this ceiling of 2% must be calculated per Order.
Any customer who imposes logistical penalties that do not comply with the provisions of the new article L.441-17 of the French Commercial Code may be held liable pursuant to article L.442-1, I, 3° of the French Commercial Code.
In all cases, any request for penalties must be sent to the Manufacturer within a maximum period of one (1) month from the date of the occurrence.
The Customer must provide the Manufacturer, at the same time as the notice of penalty is sent, with all documents required for a contradictory analysis of the alleged breach and proof of the actual loss suffered, including at least the following documents: the Order number concerned, the Products concerned, the quantity affected by the incident, a photocopy of the dated and signed consignment note, a photocopy of the dated and signed delivery note, the precise and detailed nature of the alleged breach, as well as any document required to establish the actual loss suffered.
Upon receipt of the supporting documents, the Manufacturer and the Customer will discuss the matter, taking into account all relevant circumstances, it being specified that the Manufacturer will have a minimum of one (1) calendar month to analyze the merits of the penalties and inform the Customer of its agreement or disagreement with the alleged breach and the amount of compensation claimed.
In the absence of proof and/or express agreement on a case-by-case basis, the claim will be presumed to be ill-founded, and the Manufacturer will not be obliged to pay any penalty whatsoever.
It is specified that a delay in delivery of a few hours which results in delivery taking place on the agreed day, within the limits of the opening hours of the Customer’s logistics platform, shall not justify a refusal or return of Products by the Customer, in accordance with the DGCCRF Guidelines on Logistics Penalties of September 21, 2023.
Furthermore, it is forbidden to automatically deduct penalties or discounts corresponding to non-compliance with a contractual commitment from the amount of the invoice issued by the Manufacturer. Article L.441-17 of the French Commercial Code reiterates this prohibition with regard to logistical penalties. Therefore, any automatic debit, in any form whatsoever, by the Customer in violation of the present provisions will be treated as a payment incident authorizing the Manufacturer to refuse any new Order, and/or to stop deliveries corresponding to Orders in progress.
If the Manufacturer and the Customer agree on penalties, these will be the subject of a detailed invoice issued by the Customer, the payment deadline for which may not be less than that stipulated for the payment of the Products. In any event, the Manufacturer will not be held liable for any penalties in the event of force majeure, or in the event of external circumstances which, although not fulfilling the conditions of force majeure, would disrupt the deliveries the Manufacturer is required to make to the Customer, such as those defined in article 1.3 of recommendation 19-1 of the CEPC.
ARTICLE 18. WITHDRAWAL/RECALL PROCEDURE
The Customer must inform the Manufacturer as soon as he becomes aware of any suspicion or detection of non-conformity of one or more Products, which would require the implementation of a withdrawal and/or recall procedure. Any report must be accompanied by all elements that could demonstrate the Manufacturer’s responsibility. The Customer shall cooperate in any withdrawal and/or recall procedure. Unless ordered by a public health authority, under no circumstances may the Customer alone initiate a withdrawal and/or recall procedure, any decision to withdraw and/or recall being the responsibility of the Manufacturer.
In view of the Manufacturer’s right to control its image rights, the Customer shall refrain from any communication not expressly authorized in writing, by any media whatsoever (television, radio, posters, internet, social networks, etc.) using the Manufacturer’s name and/or any sign presenting the Manufacturer as responsible for the cause of the withdrawal, unless the Manufacturer’s responsibility has been demonstrated.
In the event of a withdrawal and/or recall procedure initiated in violation of the preceding paragraphs, or in the event that the Manufacturer’s liability is not proven, the Customer will reimburse the Manufacturer for any costs incurred, without loss of the right to claim compensation for any damages, under the conditions of common law.
ARTICLE 19. TRADE DISPUTES
No claims relating to invoices will be accepted or taken into account after March 31st of the calendar year following the year of invoicing.
Any other claim or commercial dispute on the part of the Customer relating to the whole of the existing commercial relationship with the Manufacturer concerning year n, will have to be formulated at the latest at the expiry of the calendar year n+1 subject to the application of the provisions of article
“Exclusion of all pre-determined penalties” supra refers to any request for a penalty, which must be sent to the Manufacturer within a maximum of one (1) month of the event giving rise to it, and any invoicing of the penalty must in any event take place within one (1) year of the event giving rise to it. Failing this, and by express derogation from the provisions of article L.110-4 of the French Commercial Code, no claim or dispute may be lodged and will therefore be considered as time-barred and therefore inadmissible.
ARTICLE 20. REVISION
In the event of a change in circumstances unforeseeable at the time of conclusion of the Manufacturing Contract, which renders its execution excessively onerous for the Manufacturer, the latter may request renegotiation of the Contract by sending a registered letter with acknowledgement of receipt. The request for renegotiation must be accompanied by the economic elements justifying the request.
The Parties shall then renegotiate the terms of the Contract and, first and foremost, the price, within a maximum period of one (1) month from receipt of the registered letter stating the request for renegotiation. This renegotiation must be carried out in good faith and in compliance with industrial and commercial confidentiality and business secrecy. In order to preserve the economic equilibrium of the commercial relationship, the Customer may not oppose a justified request from the Manufacturer to modify the price.
In the absence of an agreement within the aforementioned one (1) month period, the relationship between the Parties will continue under the conditions set forth in the Manufacturing Agreement, unless the Manufacturer wishes to terminate it, in whole or in part, subject to compliance with a notice period agreed upon by the Parties, it being specified that the price applicable during the notice period must take into account the economic conditions of the market in which the Manufacturer and the Customer operate, in accordance with Article L.442-1, II of the French Commercial Code.
ARTICLE 21. CONFIDENTIALITY
The Manufacturer and the Customer acknowledge that, in the course of their business relationship, they may be entrusted with confidential information of a technical, commercial, marketing or financial nature, or relating to elements to which intellectual property rights are attached. However, this list is not exhaustive. This information must not, in any way whatsoever, be divulged to third parties. The Manufacturer and the Customer guarantee the confidentiality of all information, written or oral, of any nature whatsoever, of which they may become aware in the course of their business relationship, and shall refrain from communicating such information to any person other than those who are entitled to know such information under the terms of such relationship, under penalty of being required to pay compensation for any loss suffered.
ARTICLE 22. PERSONAL DATA
The Manufacturer and the Customer undertake, in the context of the collection and processing of personal data, to comply with the provisions of Law n°78-17 of January 6, 1978 relating to data processing, files and freedoms as amended, as well as the provisions of Regulation 2016/679/EU of April 27, 2016 “on the protection of individuals with regard to the processing of personal data and on the free movement of such data” (RGPD).
The Manufacturer, the data controller, processes personal data for the purpose of managing its relations with its customers, including the Customer, as well as for the performance of manufacturing contracts entered into with the latter, the legal basis for the processing being the performance of the contractual or pre-contractual relationship existing between the Manufacturer and the Customer and, where applicable, compliance with a legal obligation. Personal data may also be processed for statistical and canvassing purposes on the legal basis of the Manufacturer’s legitimate interest.
The information collected (e.g. surnames, first names, e-mail addresses and telephone numbers of the Customer’s employees and collaborators) is essential for this processing and is intended for the Manufacturer’s departments concerned. It is kept for the duration of the commercial relationship, and for ten (10) years from the end of the relationship.
The Manufacturer takes all necessary and reasonable technical and organizational measures to guarantee a high level of security for the data processed and to ensure the protection of such data against accidental or unlawful destruction, accidental loss, alteration, unauthorized distribution or access and any other form of unlawful processing.
Access to personal data is strictly limited to employees of the Manufacturer who are authorized to process such data by virtue of their position and who are subject to a strict obligation of confidentiality.
The data collected may be communicated to the Manufacturer’s subcontractors when this is necessary to carry out the services requested by the Customer. The Manufacturer ensures that its subcontractors use the Customer’s personal data in accordance with the applicable legislation on the protection of personal data. In addition, the Manufacturer may be required to communicate the Customer’s personal data by virtue of a legal obligation or for the purpose of settling disputes.
The Customer’s employees and collaborators have the right to access, rectify and delete their personal data, the right to limit processing, the right to object to data processing on legitimate grounds, the right to data portability, and the right to issue post-mortem advance directives, by sending an e-mail to the Manufacturer at [to be completed] or a letter to the Manufacturer at [to be completed], together with a copy of their identity document. They also have the right to lodge a complaint with the CNIL.
The Customer undertakes to inform its employees and collaborators whose personal data may be transmitted to the Manufacturer of the content of the present article so that they may exercise their rights.
ARTICLE 23. TERMINATION
In accordance with the provisions of Article L. 441-7 of the French Commercial Code, the Manufacturing Contract concluded between the Manufacturer and the Customer must stipulate the minimum contractual notice period to be respected in the event of termination of the contractual relationship.
In any event, the customer must comply with the mandatory provisions of article L.442-1, II of the French Commercial Code, which punishes
“the sudden termination, even partial, of an established commercial relationship, in the absence of prior written notice which takes into account, in particular, the duration of the commercial relationship […]”.
In particular, when determining the contractual notice period, the Parties must take into account the nature of the Products, i.e. private label products, which make it more difficult for the Manufacturer to convert and therefore justify a longer notice period than for national brand products.
ARTICLE 24. APPLICABLE LAW – JURISDICTION
All contractual relations between the Manufacturer and the Customer arising from the application of these General Conditions of Manufacture for private label products, and any special agreements that may be entered into, and all disputes arising therefrom, whatever their nature, shall be subject in all respects to French law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods, signed in Vienna on April 11, 1980, are inapplicable to the Manufacturer’s relationship with the Customer.
The Parties will do their utmost to amicably resolve any disagreements that may arise from the interpretation, performance or termination of the commercial relationship between the Manufacturer and the Customer within the framework of the mediation procedure for agricultural commercial relations.
In the event that mediation fails, any dispute will be submitted to the jurisdiction of the Colmar Commercial Court, notwithstanding any incidental claim or guarantee appeal, or in the event of multiple defendants, subject to the application of the provisions of Article D.442-2 of the French Commercial Code. of the French Commercial Code. This clause of attribution of competence will apply even in the event of summary proceedings or action in the form of summary proceedings.
Bills of exchange or acceptance of payment shall neither novate nor derogate from the present clause.