1. General Matters
The sale of merchandise (hereafter, “the Merchandise”) by DESIALIS, a French société par actions simplifiés, registered with the Trade and Companies Registry of Paris under number 431 232 149 and with registered offices located at 27/29 rue CHATEAUBRIAND 75008 PARIS, (hereafter, “the Seller”) to the customer (hereafter “the Customer”) shall be subject to the present general terms and conditions of sale (hereafter, “the T&C”).
The T&C are the basis of business negotiation between the Seller and its customers. They prevail over the Customer’s terms and conditions of purchase unless otherwise expressly agreed to by the Seller.
The placing of orders by the Customer shall imply that the latter accepts the T&C, notwithstanding any indications to the contrary made by the Customer.
The T&C are an integral part of the DESIALIS sale contract (“the Contract”), as well as of any standard contracts such as Incograin, Synacomex, Gafta, etc., that DESIALIS may make use of. In the event of contradiction between these documents, the following shall prevail in diminishing order: the Contract, the standard contract, and the T&C.
The products sold by DESIALIS are intended exclusively for animal feed.
The Seller shall only be bound by the Contracts. The Contracts shall specify the nature of the Merchandise, its price, payment conditions, the monthly delivery schedule, as well as the choice of Incoterms and their place of application. Unless otherwise agreed upon, Delivery Orders (i.e., “Demande d’ordre de livraison” hereafter “the DOL”) shall not be accepted unless backed by a guarantee from the Vendor’s credit insurance, or unless payment is received before the order is prepared under the conditions provided by article 5 of the T&C.
In the event of contradiction between the Contract and the Customer’s confirmation, the Contract shall prevail.
Contracts agreed to by the Seller are final. They may not be amended or cancelled by the Customer, who shall compensate the Seller for all losses or costs incurred in relation to the preparation of a DOL that was subsequently changed or cancelled.
The prices of the Merchandise on sale are those indicated in the Contract.
4. Delivery – Transportation - Storage
Transportation and insurance costs, as well as all custom duties, levies and taxes of any nature whatsoever shall be allocated between the Seller and the Client under the conditions defined by the last version of the Incoterms contained in the Contract. In the absence of a specific mention, the applicable Incoterm shall be EXW (2010) storage location of the Merchandise.
Once the risk has been transferred in accordance with the applicable Incoterm, the Customer shall be responsible for the transportation of the Merchandise and for all damages or losses that may occur, irrespective of their cause or origin.
The monthly delivery schedule shall be indicated in the Contract.
Once a DOL is issued, the Customer undertakes to honor it. Failure to honor the Delivery shall entitle the Seller to charge storage and transportation costs. In the event that the Customer does not take delivery of the Merchandise that is made available to it, it shall be required to compensate the Seller for costs resulting from the Merchandise being held.
The Customer or its carrier authorized shall be responsible for checking that the Merchandise is not damaged, defective, and/or missing at the time of delivery.
The Seller must be informed of all reservations as soon as possible and within a 48 (forty-eight)-hour period, by means of fax, email or telephone. Furthermore, reservations must be indicated on the delivery slip and confirmed to the carrier by registered letter within 3 (three) days, not including bank holidays, from the date of receipt, pursuant to the provisions of article L. 133-3 of the French Commercial Code. A copy of this document must be sent by post to the Seller’s registered office within the same time-period.
Without prejudice to the measures to be taken with respect to the carrier, any complaints concerning the nature and quality of the Merchandise, or its lack of compliance with the delivery slip, must be addressed in writing to the Seller within 8 (eight) days from the date of receipt of the Merchandise, and must specify the Merchandise in question, the affected quantities and the nature of the claimed defect. Complaints must be justified and shall not entitle the Customer to delay payment for the Merchandise.
The Customer is responsible for ensuring that the Merchandise is properly stored and shipped. In particular, the Customer must protect the Merchandise from humidity. The Seller shall be exempted from its obligating to replace defective Merchandise if the defect is entirely or partially the result of the Customer’s inappropriate shipping or storage of the Merchandise.
5. Payment Conditions
Unless otherwise provided, the price of the Merchandise is payable within 8 days of the date of shipment.
If the Seller’s credit insurance does not cover the debt, payment must be made before the date of delivery by transfer of funds to the Seller’s bank account. Otherwise, delivery will only be made on Merchandise up to the value that is covered by the Seller’s credit insurance.
All costs incurred by the Customer at the time of payment shall be the Customer’s responsibility.
At request of customers, invoices will be sent electronically.
The Customer may not delay the payment of an invoice even if it has reservations to or challenges this invoice. In any event, payments due to the Seller may not be suspended, reduced or set-off without the Seller’s prior written consent.
In accordance with the provisions of article L. 441-6 of the French Commercial Code, in the event of non-payment before the set deadline, the Customer shall be legally liable, without formal notice, for the payment of the following:
- A late penalty on the outstanding sums calculated on the basis of a rate equal to three times the legal interest rate;
- Recovery costs of a minimum of forty (40) euros.
Early payment shall not result in a discount.
6. Fault or defect
As soon as a fault or defect is noticed, the Customer must take all steps to ensure that this is not aggravated and make a claim to the Seller by registered letter with acknowledgement of receipt within 48 hours of the fault or defect being noticed. The Customer must also specify which is the affected Merchandise and the nature of the fault or defect. The Customer shall be responsible for enabling the Seller to assess the alleged faults and/or defects and in particular for providing the Seller with all the information necessary concerning the nature of the fault, the identification of the batches, and the tracking of Merchandise.
7. Limitation of Warranty and Liability
The Seller shall decide whether Merchandise that has been assessed as faulty or defective is replaced as soon as possible or reimbursed, to the exclusion of any compensation related to all other ancillary costs or any damages, be they direct, indirect, punitive, material or immaterial.
The Seller’s liability shall be limited to the lower of the following two amounts:
- The purchase price before taxes of Merchandise delivered to the Customer in accordance with the Contract under dispute
- The amount covered by the Seller’s insurance.
In any event, the Seller’s liability may under no circumstances be invoked for any special or indirect damages, including but not limited to the loss of property, revenue, profit or enjoyment.
The Seller’s liability shall under no circumstances be invoked if the Merchandise does not meet the Customer’s needs, the latter being an informed professional who must take all precautions to ensure that the Merchandise meets its needs. In particular, this applies to products meant as animal feed for animals who take part in competitions, as some of the Seller’s product ranges may not be adapted to this purpose.
8. Retention of Title
THE TITLE TRANSFER OF THE SOLD MERCHANDISE IS SUBJET TO THE FULL PAYMENT BY THE CUSTOMER OF THE PRICE AND ANCILLARY COSTS (INCLUDING CHARGES, INTERESTS, etc.) BEFORE THE SET DEADLINE. PAYMENT SHALL BE CONSIDERED TO HAVE BEEN MADE ONCE THE PAYMENT OF THE PRICE HAS BEEN RECEIVED.
In the event that payment does not take place within the set deadline, the Seller reserves the right to repossess the Merchandise.
Merchandise shall be returned to Seller’s premises as soon as possible from the date of request by means of registered letter with acknowledgement of receipt, and at the Customer’s cost and risk. The Seller is authorized to unilaterally compile an inventory of the unpaid Merchandise. The Customer shall be liable for all costs and charges resulting from the reclaiming, inventory, and repossession of the Merchandise.
The Customer shall be liable to the Seller for depreciation at 15% (excluding taxes) of the purchase price of the reclaimed Merchandise applied to each month or portion of a month that the Merchandise is held for, from the time of delivery to the time of restitution.
In any event, the Customer shall not be entitled to resell the Merchandise it has bought before it has paid for it, unless this is previously expressly agreed upon by the Seller. In this case, the Customer shall inform the sub-purchaser of the existence of a retention of title clause, and shall inform the Seller, upon the latter’s simple request, of the name and address of the sub-purchaser, as well as of the outstanding price.
Should the Customer file for bankruptcy or be subject to judicial liquidation, the Merchandise or the receivable in respect of the price may be reclaimed under the conditions set by law.
9. Merchandise Returns
Merchandise may only be returned if the Seller has given his prior express consent and by means of a carrier chosen by the Seller.
The Seller shall be entitled to refuse all Merchandise that is returned without its consent. Even if the Seller accepts the returned Merchandise, this shall not result in the Merchandise being replaced, or in a credit note being issued and the Customer shall continue to be liable for charges and risks related to the Merchandise.
The Customer must, in any event, comply with the protocol provided to it by the Seller concerning the return or certified destruction of Merchandise.
10. Force Majeure
An event shall be considered a case of force majeure if defined as such in the standard contract or, failing that, considered as such by French law.
11. Safeguard Clause
If it is established that certain provisions of the Contract or the T&C are or are becoming invalid, or that certain clauses are missing, this shall not affect the validity of the other clauses of the T&C.
The Seller’s failure to enforce any of the provisions contained in the Contract or the T&C shall not be interpreted as a waiver of rights on his part; the Seller shall remain entitled to enforce these provisions at a later date.
12. Jurisdiction and Disputes
In the event of a dispute or conflict, the Parties shall attempt to reach an amicable settlement.
Should the Parties fail to arrive at an amicable settlement, all disputes and conflicts related to a Contract, a DOL or the relations between the parties, including their termination, shall be governed by French law and shall be subject to the exclusive jurisdiction of the courts indicated in the standard contract, or, failing that, of the Chambre Arbitrale de Paris (Bourse du Commerce, 2 rue de Viarmes, 75040 Paris cedex 01, France) who shall meet and rule in accordance with its arbitrage regulations, which the Customer declares that it is aware of and accepts the version that is in effect at the time of request for arbitrage. The Chambre Arbitrale de Paris must be notified, at risk of foreclosure of the claim, within a period of six (6) months from the last day provided for the obligation under dispute to be carried out. Foreclosure shall not apply if the claim is in respect of a financial payment.