ARTICLE 1. GENERAL
These General Terms and Conditions of Sale (hereinafter referred to as the ” GTCS “) apply to all Orders placed with SENGELE Martin Produits laitiers (hereinafter referred to as the ” Seller “) 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.
They take effect onJanuary 1, 2024 and cancel and replace those drawn up prior to the date hereof.
These General Terms and 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 GCS 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 Vendor implies the Customer’s full and unreserved acceptance of these GCS, which constitute the sole basis for commercial negotiation, in accordance with the provisions of article L.441-1, III of the French Commercial Code.
Any conditions to the contrary and, in particular, any general or special conditions emanating from the Customer or its group, including any conditions of purchase and purchase orders, are consequently unenforceable against the Vendor, except with the Vendor’s prior written acceptance.
In all cases, any modification or addition to the terms of these GTS, accepted by the Vendor, must be formalized in the written Agreement as provided for in article L. 441-3-1 of the French Commercial Code for wholesale Customers and in article L.443-8 of the French Commercial Code for catering Customers, with, in all cases, details of the obligations respectively undertaken by the Parties in the context of this modification or addition(cf. article 13 below). Under no circumstances may the Vendor be subject to obligations creating a significant imbalance in the rights and obligations of the Parties contrary to article L.442-1, I, 2° of the French Commercial Code. In any event, any advantage granted to the Customer under special conditions of sale must be subject to ” proportionate ” consideration, in accordance with article L. 442-1, I, 1° of the French Commercial Code.
Failure by the Customer to invoke any of the provisions of these GTS at a given time shall not be construed as a waiver by the Vendor of its right to do so at a later date.
These GCS may be modified at any time, it being understood that any modification will be notified to the Customer one (1) month prior to its implementation, unless the modification affects the Seller’s Tariff (see article ” Tariff/Agreed price ” below).
In accordance with article R.541-173 of the French Environment Code, the unique identifier assigned to the Seller by ADEME is as follows: n°65617 (CITEO) – FR211346_01KCER.
ARTICLE 2. DEFINITIONS
Throughout these General Terms and Conditions of Sale, the terms listed below shall have the meaning given to them by the following definitions:
- Customer : wholesale distributor, within the meaning of article L.441-1-2, I of the French Commercial Code, as well as any professional RHF buyer in a commercial relationship with the Vendor.
- Order : the Customer’s offer to purchase Products from the Vendor.
- Written agreement : agreement formalizing the outcome of the commercial negotiation and signed by both parties, notably in application of L. 441-3-1 of the French Commercial Code for wholesale customers and article L.443-8 of the French Commercial Code for catering customers.
- Brand(s) : Valmartin, Duo-Mix, 1840, La Vache Favorite and all other brands belonging to the Seller.
- Party(ies) : the Seller and/or the Customer.
- Agreed price : price resulting from commercial negotiations between the Parties.
- Products : all existing and future products in the Brands’ ranges for which the Seller holds the rights necessary for their exploitation, marketing and distribution.
- Prices : Seller’s unit price list for Products.
- Taxes and Contributions : Citeo contribution or any other national or regional tax or contribution existing or not yet existing at the date of application of the Tariff and which should be applied to the Products.
- Territory : Metropolitan France.
- Seller : MARTIN SENGELE PRODUITS LAITIERS, a simplified joint stock company with a single shareholder, registered in the Colmar Trade and Companies Register under number 916 220 882 and whose registered office is located at 17 rue du Sendenbach, 68380 MUHLBACH- SUR-MUNSTER.
ARTICLE 3. ORDERS
Orders are sent to the Vendor by post, e-mail, fax or EDI under the conditions of article 7 ” EDI ” below, or by any other means chosen by the Customer and previously accepted by the Vendor.
Orders only become definitive after acceptance by the Vendor. The Vendor reserves the right to modify or refuse Orders within 48 hours (excluding weekends and public holidays) of their actual receipt by the Vendor. Acceptance of an Order may be total or partial, without the Vendor being held liable in this respect.
MARTIN SENGELE Produits Laitiers S.A.S.U.
17 rue du Sendenbach, FR-68380 Muhlbach-sur-Munster RCS Colmar 62 B 88 / N° CE FR 42 916 220 882
No order can be shipped below the minimum order of two (2) single-product pallet layers, as specified in the Price List.
It is hereby stipulated that in the case of Orders for promotional formats in the form of Product batches, the Customer agrees to refrain from any practice of “dislodging”. The granting of any promotional discount in this context is subject to the Customer’s compliance with this prohibition.
No Order may be cancelled or modified by the Customer without the Vendor’s prior written consent.
The Vendor reserves the right to require the Customer to pay a deposit against the total invoiced amount of the Order. To this end, the Vendor will send the Customer a pro-forma invoice specifying the amount of the deposit. The Order will not be considered firm and definitive until the Vendor has received the down-payment.
The Vendor 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 which is abnormal for any reason whatsoever, or which is 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 Vendor must avoid production fluctuations and guarantee the regularity of its logistics flows. Similarly, repeated Orders placed at short notice for out-of-stock Products will be considered as having been placed in bad faith. It should also be noted that the Vendor may be legally obliged to refuse certain Orders, in accordance with current health regulations.
The Customer undertakes, insofar as possible, to draw up and send order forecasts to the Vendor, in accordance with the terms and deadlines defined by the latter, in order to carry out deliveries as efficiently as possible. Failure by the Customer to comply with such obligations shall give the Vendor the right not to execute any Order which, by way of example, presents the following characteristics: order of a Product on special offer for which the quantities would be greater than 2.5 times the average weekly Orders recorded during the previous six (6) weeks or the previous year at the same period.
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.
ARTICLE 4. 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 Seller’s warehouse.
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.
The delivery times specified in the Orders are given as an indication only. Nevertheless, the Vendor endeavours to respect the delivery times agreed with the Customer.
Delays in delivery may not give rise to flat-rate penalties, order cancellations, refusal of delivery or withholding of payment of invoices, except with the prior written agreement of the Vendor, notwithstanding the existence of any clauses to the contrary in the Customer’s terms and conditions of purchase. Furthermore, it is specified that a delay in delivery of a few hours, which would result 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 any event, in accordance with article 16 below, only the loss 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 Seller and agreement by both Parties.
The Seller is furthermore fully released from its obligation to deliver in the event of force majeure, as defined under article 9 ” Exoneration of liability in the event of force majeure ” below , and any delivery deadlines accepted by the Seller are automatically suspended by any event beyond the Seller’s control which delays delivery.
Any modification of an Order during its execution, even if accepted by the Vendor, shall entail an extension of the delivery period, in accordance with the terms and conditions communicated by the Vendor to the Customer.
In any event, on-time delivery can only occur if the Customer is up to date with its obligations towards the Vendor, whatever the cause.
The Vendor is authorized to make deliveries in whole or in part, without this giving rise to penalties of any kind. Any remaining quantities will only be delivered at the express request of the Customer.
The Vendor shall not be held liable for late delivery if the Customer has been notified, prior to the initially agreed delivery date, that a delay is foreseen.
ARTICLE 5. 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 Vendor a photocopy of (i) the registered letter sent to the carrier and (ii) the packing slip. In the event of failure to comply with this procedure, any consequences shall be borne solely by the Customer to whom the Products are addressed.
In the case of outbound delivery, the Customer acts as sender and recipient of the Products, within the meaning of article L.132-8 of the French Commercial Code. Consequently, the Vendor shall in no case be considered as a party to the contract of carriage of the Products. The Customer shall be personally liable for any claims against the carriers appointed by him, in the event of shortages, damage, delays, etc., and shall be responsible for any claims against the Seller.
The risks relating to the Products are transferred to the Customer as soon as the Products are made available in the Vendor’s warehouses.
In all cases, claims for non-conformity must be made by the Customer to the Seller by registered letter with acknowledgement of receipt within three (3) days of delivery.
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 Vendor shall be entitled to store the Products at the Customer’s expense and to claim reimbursement of transport costs, it being specified that the Vendor shall be entitled to cancel the sales contract and to sell the Products, without prejudice to the payment to the Vendor of damages for any prejudice it may suffer.
For Products sold in packaged form, weights and measures at the point of delivery are the reference quantities.
ARTICLE 6. RETURNS
No Product may be returned without the Vendor’s prior written consent. Any Product returned without this agreement will be held at the Customer’s disposal and will not give rise to the issue of a credit note. The cost of transporting returned Products shall 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 7 EDI
The use of the EDI system in the context of relations between the Vendor and the Customer must be accepted in advance by the Vendor 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 Seller offers a single EDI transmission system, the classic Web EDI system.
In any case, the use of the EDI system shall not give rise to the granting by the Vendor of any financial advantage to the Customer.
Furthermore, in the event of a technical malfunction of the EDI system beyond its control, no penalty may be imposed on the Vendor, in particular in the event of a delay in DESADV (electronic dispatch notice) or an absent DESADV. The same shall apply if the EDI system has not been correctly configured and the Customer does not inform the Vendor at the time of the first Order that the DESADV has not been received.
ARTICLE 8. WARRANTY – LIABILITY
The Products marketed by the Vendor 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 within three (3) working days of delivery of the Products, by registered letter with acknowledgement of receipt, in accordance with the article ” Receipt and transfer of risks ” of these GTS.
In the case of hidden defects, the Customer must inform the Vendor 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 any justification as to the reality of the defects or non-conformities observed. The Products delivered must be kept at the Vendor’s disposal, in compliance with the rules of conservation and hygiene, and under no circumstances may they be destroyed without the Vendor’s prior written consent. In any event, the Customer shall refrain from intervening himself to bring the Products back into conformity, or from having a third party intervene for this purpose.
The lodging of a complaint, 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 reached its normal due date.
In the event of defect or non-conformity of the Products sold, the Vendor shall not be held liable beyond the replacement or reimbursement of the Products found to be non-conforming or missing, at the Vendor’s discretion. In no event will the Seller be liable for any indirect or consequential damages, costs or losses of any kind whatsoever, such as loss of profit, revenue, goodwill, etc., arising out of or in connection with the Products sold.
Furthermore, the Vendor cannot 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 Vendor may not be held liable in the event of failure by the Customer 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 Vendor may not be held liable for the possession and/or distribution of expired or damaged Products.
In order to guarantee the quality of the Products, the Vendor reserves the right to take back, at any place whatsoever, Products whose quality is in doubt. The Customer undertakes to assist the Vendor in these operations by implementing the means necessary to allow this take-back, 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.
ARTICLE 9. 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 written Agreement 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 Vendor having to establish that they present the characteristics defined in article 1218 of the French Civil Code:
- war (declared or undeclared), regardless of the countries involved in the conflict, which has an impact on the manufacture and marketing 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 measures to prohibit and/or restrict the movement of people and vehicles, to confine towns or certain parts of them, to temporarily close one or more categories of establishments open to the public (businesses, shops, etc.), to regulate working conditions, and so on.), 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 of being supplied for any reason whatsoever,
- shortage of raw materials, packaging or any other element necessary for the manufacture or packaging of the Products, in particular in the event of disruption of energy flows, quality defects or poor quality of raw materials or packaging,
- boycotts, strikes and lockouts in any form whatsoever, work-to-rule, occupation of factories and premises, work stoppages occurring in the Seller’s businesses,
- infection of the computer system by a virus, cyber attack affecting the Seller’s computer infrastructure,
- act of authority, whether licit or illicit, arbitrary or not.
In the event of force majeure, the Vendor will notify the Customer as soon as possible by e-mail, confirmed by registered letter with acknowledgement of receipt. The Vendor’s obligations will be suspended ipso jure 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 notification of the Force Majeure Event by the Vendor to the Customer, either Party shall be entitled to cancel the Order(s) concerned without either Party being entitled to claim damages.
ARTICLE 10. RETENTION OF TITLE CLAUSE
Products sold remain the property of the Vendor 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 cheque or any other instrument creating an obligation to pay does not constitute payment within the meaning of the present clause.
Payment shall only be deemed to have been made when the Seller has actually received the agreed Price.
If the Products, subject to retention of title, have been resold by the Customer, the Seller’s claim shall automatically be transferred to the claim for the price of the Products thus sold by the Customer.
The Customer hereby assigns to the Vendor 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 Vendor is hereby authorized by the Customer, who accepts it, to draw up an inventory and/or sequestrate the unpaid Products held by him. Any deposits previously paid shall remain the property of the Vendor in their entirety 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 in the event of force majeure as defined in the article ” Exemption from liability in the event of force majeure ” above. The Customer must therefore insure the Products subject to retention of title, stipulate in the insurance policy that any compensation will be paid directly to the Vendor and provide the Vendor, 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 the reservation of title clause belong to the Vendor, and to inform the Vendor immediately of any seizure or similar operation.
ARTICLE 11. RATES / AGREED PRICE
11.1 – 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 Tariff has been drawn up taking into account in particular the VESPER indicator, which reflects the price of the main agricultural raw materials used in the composition of the Products and their evolution.
Specifically, the Tariff has 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 weeks 40 to 43 2023 – and all the Seller’s other expenses (the cost of the raw material counting for only part of the cost of the Products) and (ii) the margin necessary to enable it to continue investing.
11.2 – RATES / RATE CHANGES
Products will be invoiced according to the Tariff in force on the day of delivery. Prices shown on the Tariff are exclusive of Taxes and Duties.
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 pallet of six (6) pallet layers. For shipments of between two (2) and five (5) layers, the Seller will invoice an additional freight charge of €0.22/kg. It is the Customer’s responsibility to organize his Orders, as far as possible, to respect the carriage costs. The Vendor reserves the right to modify the Product Price at any time. The Vendor will inform the Customer of any such change with a minimum of one (1) month’s notice prior to its implementation. The Vendor reserves the right to reduce this period to eight (8) days in the event of an exceptional increase in manufacturing costs.
and marketing of the Products, in particular: increases in the price of raw agricultural materials, producers’ production costs, prices recorded on the markets on which the Seller operates, technological developments, the cost of inputs, labour costs, packaging costs, transport costs, energy costs or any changes decided by the legislator and likely to have an impact on the Seller’s production costs, it being the responsibility of the Seller to justify this exceptional increase on the basis of objective elements which it will bring to the attention of the Customer.
Any Customer who places an Order after the new Tariffs have come into force shall be deemed to have accepted the new Tariffs, which shall prevail over any conflicting information that may appear in the Order.
11.3 – TRANSPARENCY AND NON-NEGOTIABILITY
In accordance with the provisions of the new article L.441-1-1 of the French Commercial Code, the Seller wishes to specify that contracts subject to article L.631-24 of the French Rural and Maritime Fishing Code have been concluded, upstream, with agricultural producers of the following raw materials used in the composition of the Products: milk-based agricultural raw materials and potato-based agricultural raw materials.
Where the Customer is not a wholesaler within the meaning of Article L.441-1-2, I of the French Commercial Code, and in accordance with the provisions of Article L.441- 1-1, I, 2° of the French Commercial Code, the aggregated share of agricultural raw materials and processed products composed of more than 50% agricultural raw materials which enter into the composition of the Products, in the form of a percentage by volume and a percentage of the Tariff, is shown in the Tariff attached hereto.
11.4 – PRICE RENEGOTIATION CLAUSE
Pursuant to the provisions of article L.441-8 of the French Commercial Code, the agreed Price may be renegotiated, at the request of the most diligent Party, in the event of fluctuations in the prices of agricultural and food raw materials and products, energy costs, transport and materials used in the composition of packaging, affecting the production costs of the Products.
The conditions under which renegotiation is triggered are specified in Appendix 1 to these GCS.
11.5 – AUTOMATIC PRICE REVISION CLAUSE
In accordance with the provisions of article L.443-8 of the French Commercial Code, the written agreement (with the exception of those concluded with wholesalers) must include a clause providing for automatic revision of the agreed price in line with variations in the cost of agricultural raw materials, upwards or downwards, used in the composition of the Products.
In any event, price changes resulting from the automatic price revision clause will be implemented no later than one year after the date of the agreement.
(1) month after the triggering of said clause.
ARTICLE 12. TERMS OF PAYMENT
Invoices are payable at the Seller’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 Seller.
The mere remittance of a bill of exchange or cheque implying an obligation to pay does not constitute payment within the meaning of the present article. The prior acceptance of a draft or bill of exchange shall in no case constitute a waiver of the aforementioned payment deadline. 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 give rise to late payment penalties equal to three times the legal interest rate in force on the due date. Likewise, in the event of late payment, the Seller will be required to pay a flat-rate 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 fixed indemnity is not limitative of the amount of other expenses that may be incurred by the Vendor for the purposes 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 Vendor.
Any month commenced shall be payable in full. The Vendor shall be entitled to offset the said late payment penalties against any price reduction due to the Customer.
In the event of non-payment, even partial, of any of the agreed instalments for any of the deliveries, the Vendor 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 of acceptance, equivalent to non-payment.
No payment may be offset at the sole initiative of the Customer, in particular in the event of an allegation by the Customer of late delivery or non-conformity of the Product delivered, the prior written agreement of the Vendor being essential, regardless of any provisions to the contrary which may appear in the Customer’s terms and conditions of purchase. Any compensation not authorized by the Vendor will be considered as a default of payment, authorizing the Vendor 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 Vendor 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 Vendor. In any event, the Vendor shall be entitled not to deliver any further 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 compulsory liquidation, the Vendor 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 written Agreement 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), it is expressly agreed that in the event of the opening of safeguard, receivership or liquidation proceedings against the Customer, the unpaid amount of any invoices issued by the Customer in respect of services rendered to the Vendor, and any price reductions due, shall be offset against any amounts still owing to the Vendor, which shall become immediately due and payable.
ARTICLE 13. WRITTEN AGREEMENT
13.1 – CONTENT OF THE WRITTEN AGREEMENT
When the Products are intended to be resold as is by the Customer, in accordance with the provisions of article L. 441-3-1 of the French Commercial Code, the written Agreement drawn up between the Vendor and the Customer will take place no later than March 1st of year n and will define all the obligations to which the Parties have committed themselves with a view to fixing the price at the end of the commercial negotiation.
The written agreement will specify :
- The terms and conditions of sale of the Products , including these General Terms and Conditions of Sale and the Price List, which must be appended to the Written Agreement, and any special terms and conditions of sale granted to the Customer, in the form of discounts or rebates derogating from these General Terms and Conditions of Sale, provided that these special terms and conditions are fully justified in view of the obligations entered into by the Customer and whose reality, at least potential at the date of signature of the Written Agreement, must be demonstrated in advance by the Customer.
- The provision of commercial cooperation services designed to promote the marketing of Products, defining the services to be provided, the Products concerned, the dates on which said services are to be rendered, the manner in which they are to be performed, their duration, the remuneration for these services and the overall remuneration relating to all of these obligations, except that the written Agreement drawn up in the form of a framework contract may in part refer to application contracts, without however the latter being able to replace the framework contract which must be drawn up prior to the performance of any service.
- Other obligations intended to promote the commercial relationship between the Vendor and the Customer which do not fall within the scope of services designed to promote the marketing of the Products, specifying for each of them the purpose, the planned date for the performance of the service and the terms and conditions of its execution, as well as the remuneration or price reduction relating to each of these obligations.
- Services or obligations arising from an agreement concluded with a legal entity located outside French territory, with which the Customer is directly or indirectly linked, specifying for each the object, date, terms of execution, remuneration and Products to which it relates.
Any modification to the written agreement must be made in writing, stating the new element justifying it.
13.2 – CALCULATION AND PAYMENT OF FINANCIAL BENEFITS
No payment of rebates or remuneration for commercial cooperation services or other obligations may be made before the return of one of the two original copies of the written Agreement, duly signed, initialled and dated by the Customer, no later than March1st of the current year.
In accordance with the provisions of article L.441-9 of the French Commercial Code, invoices for services drawn up by the Customer must include the name and address of the Parties, as well as their invoicing address if different, the date of issue of the invoice, the start and end dates of the service, its precise description including the Products and, where applicable, the brands concerned, as well as the price excluding VAT. Invoices will also indicate the form of the company providing the service(s) in question, its share capital, its registration number in the Trade and Companies Register, its registered office and invoice numbers. These services are subject to the current VAT rate. They must also comply in all respects with the provisions of article 289 of the General Tax Code and article 242 nonies A of appendix II of the General Tax Code.
Invoices for services to promote the marketing of the Products and/or other obligations shall be paid upon confirmation of the actual performance of the service. They may not be offset against invoices for delivery of Products, and may not be deducted from payment of the latter, without the prior written agreement of the Vendor. Any unauthorized deduction will be treated as a default in payment by the Customer, and will justify refusal of delivery.
When the amount of a financial advantage (remuneration for a service or rebate) is determined by applying a percentage to sales, the latter is understood to be sales net of all taxes and contributions, made by the Vendor with the Customer, invoiced and collected. The rebate base will consist of sales less any product returns and any credit notes issued by the Vendor, less any sums withheld by the Customer for any reason whatsoever and, in particular, for the invoicing of penalties for any reason whatsoever, unless previously accepted in writing by the Vendor.
If rebates and/or services are paid in instalments, the sales figure used as the basis for calculation will be that for the year n-1.
However, in the event of a significant drop in the sales made by the Vendor to the Customer during year n compared with the same period in year n-1, the Vendor may at any time ask the Customer to reduce the amount of the advance payments. The Vendor and the Customer will then meet to agree on a new method for determining down payments. Payment of rebates and/or services designed to promote the marketing of the Products and/or other obligations will not be made by way of down-payments.
In the event of late payment of invoices for commercial cooperation services and/or other obligations, the interest rate for late payment penalties payable by the Customer on the day following the payment date shown on the invoice shall not exceed the interest rate for penalties payable by the Customer in the event of late payment of invoices for Products. The Vendor will not accept any penalty for late payment on account.
ARTICLE 14. INTELLECTUAL PROPERTY RIGHTS
The Vendor is the owner or licensee of all intellectual property rights covering the Products. Products delivered by the Vendor under the Brands may only be resold in their original presentation and in conditions consistent with their brand image and specific features.
The Customer undertakes to respect all of the Vendor’s intellectual property rights, of which he declares that he is fully aware.
All documents provided to the Customer remain the exclusive property of the Vendor. The Customer undertakes not to make any use of these documents which might prejudice the Vendor and undertakes not to reproduce them or communicate them to a third party without the Vendor’s prior agreement.
Any communication envisaged by the Customer and concerning visuals, Brands, or elements owned by the Vendor must be communicated to the latter at least five (5) days before the start of the envisaged operation. The Vendor reserves the right to make any changes it deems necessary in the light of its commercial policy and the image of the Products.
The Customer shall inform the Vendor, by e-mail, confirmed by registered letter with acknowledgement of receipt, as soon as he becomes aware of any legal action brought against him in matters of intellectual property concerning the Products and shall not take any action without first informing the Vendor, who shall be solely entitled to direct the proceedings and to decide on any action to be initiated or implemented.
If the Customer incurs any costs in connection with any type of proceedings in which the Seller may be involved and on the basis of which the Customer may believe itself entitled to claim damages, and without prior agreement with the Seller, the Customer shall bear such costs without being entitled to claim any reimbursement of the sums incurred.
The Customer who becomes aware of any infringement of the Trademarks or, more generally, of the intellectual property rights held by the Vendor must immediately inform the latter by e-mail confirmed by registered letter with acknowledgement of receipt.
ARTICLE 15. PENALTIES
No pre-determined penalty, lump-sum or otherwise, for any reason whatsoever, will be accepted by the Vendor, except with his prior written consent, and notwithstanding any clauses or provisions to the contrary which may appear in purchasing conditions, referencing contracts, annual business plan, logistical conditions, special agreements, or any other document issued by the Customer.
In the event of a breach by the Vendor of any of its obligations, it is reminded that only the loss actually suffered, previously demonstrated and evaluated by the Customer, may give rise to a claim for compensation.
- With regard more specifically to logistical penalties, no penalty for non-performance by the Seller of its contractual commitments may be invoiced to the Seller if:The Customer has not provided proof of the contractual breach;
- The Customer has not provided proof of the existence of a loss and, in any event, of its valuation;
- The Customer has not taken into account a sufficient margin of error with regard 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 period of time sufficient to allow the Seller to analyze the nature of the incident claimed and the reality of the loss suffered;
- The penalty is not proportionate to the damage suffered as a result of the contractual breach.
Any request for penalties must be sent to the Vendor within a maximum period of one (1) month from the date of the event giving rise to the claim. The Customer shall provide the Vendor, at the same time as the notice of penalties is sent, with all documents enabling a contradictory analysis of the alleged breach and attesting to the loss actually suffered, and in particular at least the following documents: the Order number concerned, the Products concerned, the quantity concerned by the incident, the photocopy of the consignment note dated and signed for, the photocopy of the delivery note dated and signed for, the precise and detailed nature of the breach complained of, as well as any document enabling the reality of the loss suffered to be established.
Upon receipt of the supporting documents, the Vendor and the Customer will discuss the matter in the presence of both parties, taking into account all relevant circumstances, it being specified that the Vendor will have a minimum period of one (1) calendar month to analyze the merits of the penalties and to 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 request will be presumed to be ill-founded and the Seller will not be obliged to pay any penalty whatsoever.
In any event, the Vendor shall not be liable for any penalty whatsoever in the event of force majeure as defined in article
“These circumstances include, but are not limited to, those defined in article 1.3 of CEPC recommendation no. 19-1.
Furthermore, it is forbidden to automatically deduct from the amount of the invoice drawn up by the Vendor any penalties or discounts corresponding to non-compliance with a contractual commitment. Thus, any automatic debit, in any form whatsoever, by the Customer in breach of the present provisions will be treated as a payment incident authorizing the Vendor to refuse any new order, stop deliveries corresponding to Orders in progress and suspend payment of rebates and other financial benefits. In addition, the Vendor reserves the right to deduct from rebates or payments for services due, any amount that the Customer has automatically deducted.
If the Vendor and the Customer agree on penalties, these shall be the subject of a detailed invoice issued by the Customer, the payment deadline for which may not be less than that stipulated for payment of the Products.
ARTICLE 16. WITHDRAWAL/RECALL PROCEDURE
The Customer is obliged to inform the Vendor as soon as any suspicion or detection of non-conformity of one or more Products arises, which would require the implementation of a withdrawal and/or recall procedure. Any report must be accompanied by all elements which could demonstrate the responsibility of the Seller. 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 Vendor.
In view of the Seller’s right to control its image rights, the Customer shall refrain from any communication not expressly authorized in advance in writing, by any media whatsoever (television, radio, posters, internet, social networks, etc.) using the name, the Brand and/or any sign of the Seller presenting the latter as responsible for the cause of the withdrawal, insofar as the Seller’s responsibility has not 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 Vendor’s liability is not proven, the Customer will reimburse the Vendor for any costs incurred, without loss of the right to claim compensation for any loss, under the conditions of common law.
ARTICLE 17. TRADE DISPUTES
No claim 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 Vendor concerning year n, must be formulated at the latest by the end of calendar year n+1. Failing this, and by express derogation from the provisions of article L.110-4 of the French Commercial Code, no further claims or disputes may be lodged, and will therefore be deemed to be time-barred and therefore inadmissible.
ARTICLE 18. IMPREVISION
In the event of a change in circumstances unforeseeable at the time of conclusion of the Written Agreement which renders its execution excessively onerous for the Seller, the latter may request renegotiation of the Written Agreement by 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 written Agreement and, first and foremost, the agreed 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. The Customer may not oppose a justified request by the Vendor to modify the agreed Price, in order to preserve the economic equilibrium of the commercial relationship.
In the absence of agreement within the aforementioned period of one (1) month, the contractual relationship between the Parties shall continue under the conditions laid down in the written Agreement, unless the Seller wishes to terminate it, in whole or in part, subject to compliance with a period of notice agreed between the Parties, it being specified that the price applicable during the period of notice shall take account of the economic conditions of the market in which the Parties operate, in accordance with article L.442-1, II of the French Commercial Code.
ARTICLE 19. CONFIDENTIALITY
The Vendor and the Customer acknowledge that, in the course of their business relations, 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. Such information shall not, in any way whatsoever, be disclosed to third parties. The Vendor and the Customer guarantee the confidentiality of all information, of whatever nature, whether written or oral, of which they may become aware in the course of their business relationship, and undertake not to communicate such information to persons other than those who are entitled to know such information under the terms of the contract, failing which they shall be liable to pay compensation for any loss suffered.
In accordance with the new article L. 443-6 of the French Commercial Code, the illicit obtaining, use or disclosure of business secrets by the Customer is prohibited and punishable by an administrative fine.
ARTICLE 20. PERSONAL DATA
The Seller and the Customer undertake, in the context of the collection and processing of personal data, to comply with the provisions of Act No. 78-17 of January 6, 1978 on Data Processing, Data Files and Individual Liberties, 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 Vendor, as data controller, processes personal data for the purpose of managing its relations with its customers, including the Customer, and for the performance of sales contracts concluded with the latter, the legal basis for the processing being the performance of the contractual or pre-contractual relationship existing between the Vendor 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 Vendor’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 relevant departments of the Vendor. It is kept for the entire duration of the commercial relationship, and for ten (10) years from the end of it.
The Seller 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 Seller 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 Vendor’s subcontractors where this is necessary to carry out the services requested by the Customer. The Vendor ensures that in the performance of their services, its subcontractors use the customer’s personal data in compliance with the applicable legislation on the protection of personal data. In addition, the Vendor may be required to communicate the customer’s personal data by virtue of a legal obligation or for the purposes of dispute resolution.
Employees and collaborators of the Customer have the right to access, rectify and delete their personal data, the right to withdraw their consent, the right to limit processing, the right to object to data processing on legitimate grounds, and the right to data portability, a right to issue post-mortem advance directives , by sending an e-mail to the Seller at fromages@sengele.fr or a letter to Martin Sengele SASU, 17 rue de Sendenbach, 68380 Muhlbach sur Munster, accompanied by a copy of their identity card. 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 Vendor of the content of the present article so that they may exercise their rights.
ARTICLE 21. MODIFICATION AND TERMINATION OF COMMERCIAL RELATIONS
In accordance with article L.442-1, II of the French Commercial Code, the Customer shall refrain from any sudden partial or total delisting of the Vendor’s range of Products, failing which the Vendor may be held liable. Any partial delisting by the Customer during the course of the year may result in the Vendor modifying the commercial conditions and services previously agreed.
In accordance with article L.442-1, II of the French Commercial Code, the Customer also undertakes not to attempt to obtain any undue advantage under threat of total or partial delisting from the Vendor’s product range.
The Customer undertakes to respect a notice period notified by registered letter with acknowledgement of receipt of at least three (3) months prior to the expiry of the term, it being specified that the price applicable during the notice period must take into account the economic conditions of the market on which the Parties operate, in accordance with article L.442-1, II of the French Commercial Code.
ARTICLE 22. APPLICABLE LAW – JURISDICTION
All contractual relations between the Vendor and the Customer arising from the application of these GTS, 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 relationship between the Vendor and the Customer.
The Parties shall do their utmost to resolve amicably and, if necessary, through the mediation procedure for agricultural trade relations, any disagreements that may arise from the validity, interpretation, performance or non-performance of these GTS; the same shall apply to the performance or termination of commercial relations between the Vendor and the Customer.
Should mediation fail, any dispute will be submitted to the jurisdiction of the Colmar Commercial Court, notwithstanding any incidental claim or third-party claim, or in the event of multiple defendants, subject to the application of the provisions of article D.442-2 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.
The Vendor shall nevertheless have the right to bring the matter before any other competent jurisdiction, in particular that of the Customer’s registered office or that of the location of the Products delivered. Bills of exchange or acceptance of payment shall neither novate nor derogate from the present clause.