CLAUSE 1. GENERAL PROVISIONS
These Standard Terms of Trading apply to all Orders placed with the company Laurent Bologna – Domaine des Tournels (hereinafter referred as the “Seller”) by its Customers, for the purpose of a delivery within the Territory. Notwithstanding any clause or condition to the contrary, product referencing agreement and/or joint venture agreement and/or brand name coming from the Customer or its group. Consequently, any Order placed with the Seller involves of necessity, as an essential and critical condition, complete and unconditional acceptance by the Customer, of the aforementioned Standard Terms of Trading, which constitute the sole basis for the commercial transaction, per the provisions of Article L.441-6 of the French Commercial Code (Code de Commerce). All conditions to the contrary and, in particular, all general or specific terms and conditions coming from the Customer or its group, including the ultimate purchase conditions and purchase Orders are, as a consequence not binding upon the Seller, save and except by its prior written acceptance. In the case of groupings comprised of affiliated freelance members, or, more generally, in the case of a negotiating mandate entrusted to the Customer, these Standard Terms of Trading will be sent to the group’s head office, which undertakes to provide this information to all of its affiliates and/or principals, upon which they will be binding from then on. Any amendments or potential addendum to the wording of these Standard Terms of Trading must be formalized in the written Agreement, by stating the respective obligations accepted by the Parties as part of the given amendment or addendum (cf. article 13 below). In any case, the Seller shall not be subject to obligations creating a significant imbalance in the Parties’ rights and obligations contrary to article L.442-6, I, 2° of the French Commercial Code. In this regard, any advantage agreed by the Customer as specific conditions of sale should be “balanced” to compensate for it. Evidence of not taking advantage, at a given time, of any one of the provisions of these Standard Terms of Trading cannot be interpreted by the Customer as amounting to the Seller renouncing its right to take such advantage at a later date. These Standard Terms of Trading may be amended at any time, subject to any potential amendment being notified to the Customer at least one month before it comes into force, save and except amendments modifying the Seller’s price.
CLAUSE 2. DEFINITIONS
The terms listed below shall have, throughout these Standard Terms of Trading, the meaning given to the them by the following definitions:
• Customer: individual or entity in a commercial relationship with the Seller.
• Order: purchase order by the Customer with the Seller relating to Products marketed by the latter.
• Written Contract: formalizes the result of the commercial negotiations and is signed by both parties by 1st March in the year N at the latest
• Brand(s): the Laurent Bologna-Domaine des Tournels brands and all other brands owned by the Seller.
• NPI: any promotional campaign anticipating the grant of an advantage to the consumer and financed by the Seller who appoints the Customer as its agent.
• Party(ies): the Seller and/or the Customer.
• Price Agreed: price arising from the commercial negotiations between the Parties.
• Products: all existing and future products for the Brand ranges for which the Seller holds the necessary rights for their use, marketing and distribution.
• Price List: List of the Seller’s unit prices.
• Tax and Local Taxes: all regional or national taxes, whether or not in existence at the date of application of the Price List and which might be applied to the Products.
• Territory: Metropolitan France, Corsica, DROM-COM (overseas departments, regions and local areas), export markets
• Seller: Laurent Bologna – Domaine des Tournels Siret (geographical identification) number 32811462400013
CLAUSE 3. ORDERS – PRODUCT AVAILABILITY
3.1 The Orders shall be sent to the Seller’s head office by post, e-mail, EDI (electronic data interchange) within the conditions of clause 7 “EDI” below or any other means chosen by the Customer and previously agreed by the Seller. Orders will only become final after acceptance by the Seller. This acceptance results from the confirmation of the Order either by e-mail or by telephone. It can be either in full or in part, without the Seller being held liable as such. Orders shall be sent to the Seller at the latest 15 (Fifteen) days before the desired date of delivery and before 5 p.m. on any given date. Customer Orders for which same-day delivery is anticipated shall be delivered at the same time as part of a single delivery. No Order can be cancelled or amended without the prior written agreement of the Seller. The Seller reserves the right to demand payment of an instalment on account, as credit against the total amount invoiced in the Order. To this end, the Seller will send the Customer a pro forma invoice stating the instalment amount. The Order will only be treated as firm and final upon receipt by the Seller of the instalment amount. The Seller reserves the right to refuse any Orders, in the event of breach by the Customer of any of its obligations and, more generally, to refuse any Order of an irregular nature for any reason whatsoever, or placed in bad faith.
3.2 The availability of Products may be affected by events outside of the Seller’s control, such as notably insufficient supplies or limited stocks, in particular taking account of unknown factors linked to the production methods for the Products (bad weather, uncertain harvest, etc.). The Seller shall make these events known to the Customer. In any case, no penalty shall be imposed by the Customer upon the Seller.
3.3 The quantities ordered as part of a promotional campaign shall be reserved with the Seller for a minimum of 6 (Six) weeks before the desired product delivery date.
CLAUSE 4. DELIVERY
In the event of Free delivery, delivery extends to the actual delivery of the Products at the Customer’s warehouses. In the case of Ex Warehouse delivery, delivery takes place when the Products are made available to the Customer’s warehouses. The Seller strives to respect the delivery dates agreed when the Order is confirmed. Delivery delays cannot give rise to lump sum payments, Order cancellations, or the refusal of delivery or even withholding invoice payments, save and except for the Seller’s prior written agreement. This is notwithstanding the existence of clauses to the contrary in the potential Customer purchase conditions. In any case, only loss or damage actually suffered by the Customer, both shown and assessed shall be the subject of a claim for damages, which shall only, in any case, take place after a discussion with the Seller and the agreement of both Parties. In the absence of agreement, the assessment of the loss or damage suffered shall be completed by an expert appointed by the Commercial Court of Saint Tropez upon the application of the most prompt Party. Delivery deadlines potentially agreed by the Seller upon confirmation of the Order are automatically suspended by any event outside of the control of the Seller and as a consequence delaying delivery. This is notably the case with force majeure cases, as defined in clause 9 “Exclusion of Liability in the case of Force majeure” below. Any Order amendment which takes place during contractual performance, even if it is agreed by the Seller, will lead to an extension of the anticipated delivery deadline, according to the terms sent to the Customer by the Seller. In any event, delivery within the deadlines stated can only take place if the client is up to date with its obligations to the Seller for whatever reason. The Seller is authorized to proceed with either complete or partial deliveries, without these giving rise to penalties of whatever nature. The balance of the Order will be delivered upon the Customer’s formal demand.
CLAUSE 5. RECEIPT AND TRANSFER OF RISKS
In the event of Free delivery, the transfer of risk takes place upon delivery of the Products in the Customer’s warehouse, before their unloading operations commence. It is the sole responsibility of the recipient receiving the Products to check whether the transport contract has been correctly executed. If not, it should take all appropriate steps to retain its legal remedies against the carrier. If parcels are missing or parcels arrive damaged or for any other reason, the customer must:
1 – Establish immediately and for certain, on the consignment note, the nature and significance of the damage noted at the time of receipt,
2 – Confirm to the carrier, within 3 (Three) days at the latest, not including bank holidays following the receipt of the Products transported, the justified complaint by registered post demanded so as not to be time-barred per article L.133-3 of the French Commercial Code.
These two conditions are both absolutely necessary for establishing the carrier’s liability. In the event of non-compliance with this procedure, the potential consequences would be the responsibility of the sole Client recipient of the given Products. In the event of ex warehouse delivery, the Customer guarantees the quality of the carrier and the recipient of the Products, per the meaning of article L.132-8 of the French Commercial Code. Consequently, the Seller shall not in any case be considered as being a party to the contract of carriage for the Products. The Customer shall make arrangements for all potential actions against the carriers that he could authorize to remain possible, in the event of shortfalls, damage, delays and other occurrences. The risks relating to the given Products are transferred to the Customer upon making the Products available to the Seller’s warehouse. Complaints about obvious defects or the non-compliance of the Product delivered, compared to the Product ordered or to the consignment note, should be made to the Seller within 3 (Three) days from the delivery of the Products, by registered letter with an acknowledgement of receipt. It is the Customer’s responsibility to provide all proof of the existence of the noted defects or faults. For any noted defect, it is imperative that the Customer sends all documents to the Seller, enabling it to check the materiality of the elements found to be faulty. The Customer must allow the Seller every opportunity to investigate these defects. In this regard, from the signature of the written Agreement, the Customer will send the contact details (name, telephone number, e-mail) of a personal adviser, used to dealing with any dispute-related issues. In the absence of the Customer taking delivery, not duly justified, or a delay in their taking responsibility for the Products, the Customer shall bear all the risks and should settle the Order price, whatever it proves to be. Moreover, the Seller shall have the right to place the Products in the warehouse, at the Customer’s cost, and to demand reimbursement of the transport costs from them, having specified that the Seller shall have the right to set aside the sale contract and sell the Products, without prejudice to payment to the Seller of damages in respect of the damage or loss it could suffer as a result.
CLAUSE 6. RETURNS
No Product returns will be accepted without the Seller’s prior written agreement. Transport costs relating to Product returns will remain the Customer’s liability, save and except in the case of established non-compliance and after the Seller’s prior written agreement. In any event, Products shall be returned at the Customer’s risk.
CLAUSE 7. EDI
The use of the EDI system in the relationship between the Seller and the Customer must be agreed beforehand by the Seller. It shall be subject to the signature of an EDI agreement to control 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 standard EDI Web system. In any case, using the EDI system cannot give rise to the Seller granting any financial advantage to the Customer. In addition, in the event of technical malfunction of the EDI system, independent of its will, no penalty can be imposed upon the Seller, in particular in the case of a DESADV delay (electronic despatch advice) or if the DESADV is missing. The same happens if the parameters of the EDI system have not been correctly set up and the Customer does not inform
the Seller from the first order that the DESADV has not been received.
CLAUSE 8. GUARANTEE
Products marketed by the Seller comply with the required specifications and the legislation and/or regulations, and/or the standards in force. To be admissible, any complaint relating to obvious defects should be made within 3 (Three) days of receipt of the Products in the form of a written notification sent by registered post with an acknowledgement of receipt. This should comply with clause 5 “Receipt” of these Standard Terms of Trading. Where it relates to a hidden defect, the Customer shall inform the Seller of it by registered post with an acknowledgement of receipt, within 48 hours following the discovery of the hidden defect. The making of a complaint, for whatever reason, and even if it is made within the prescribed time period does not enable the Customer to delay payment of an amount that is then due. The Customer is responsible for providing all proof of the existence of the defects or non-compliance noted. In particular, unless the noted flaw or defect makes the Products manifestly unfit for human consumption, in compliance with health regulations, it is imperative that the products delivered are made available to the Seller, in accordance with the preservation regulations. In the event of a defect or established non-compliance of the Products sold, the Seller will replace or provide reimbursement for the Products acknowledged to be defective or missing. The Seller shall not be held liable where the Products sold will be transported, unloaded or stored by the Customer in unusual conditions or those incompatible with their nature. In this regard, please note that the Products are sensitive and require strict compliance with storage and transport conditions, notably:
– a temperature of between 10°C and 25°C,
– atmospheric humidity of between 55% and 70%,
– storage in a well-ventilated location, free from light and all smells.
Although the Seller may be liable it will not, in any case, have to compensate any indirect or immaterial damage, costs and losses and losses of any kind, such as loss of profits, loss of income, loss of customers, etc.
CLAUSE 9. EXCLUSION OF LIABILITY IN THE EVENT OF FORCE MAJEURE
The Seller’s obligations will be suspended by operation of law and without any formality, and it will be released from liability in the event of a force majeure case. This is interpreted as any event outside of its control that could not reasonably have been anticipated at the time the written Agreement was concluded, and whose effects could not have been avoided by appropriate measures. This is in compliance with article 1218 of the French Civil Code (Code Civil). Particularly considered as force majeure cases, although this list is not exhaustive, are the following events:
• war (whether or not declared), civil war, riot and revolution, acts of piracy,
• sabotage, requisitioning, confiscation, nationalization, embargo and expropriation,
• natural disasters such as violent storms, cyclones, earthquakes, tidal waves, floods, destruction by lightening,
• accidents, in particular equipment, machinery breakdown, explosion, fire, destruction of machinery, factories and plant of whatever nature,
• interruption of or delays in transport, failure of a carrier of whatever nature, the impossibility of receiving supplies for any reason, shortage of raw materials, lack of quality or poor quality raw materials,
• third party failure,
• boycott, strike and lockout of whatever form, work-to-rule, occupation of factories and premises, work stoppages occurring in the businesses of the Party requesting exclusion of liability,
• an act by the authorities, whether lawful or unlawful, arbitrary or non-arbitrary,
• or any other event outside of the Seller’s control.
In such a case, the Seller will make every effort to resume the performance of its obligations as soon as possible. In the event that this suspension continues beyond a time period of 10 (Ten) days starting from its notification to the Customer, the latter will have the opportunity to terminate the Orders in progress.
CLAUSE 10. RETENTION OF TITLE CLAUSE
The products sold remain the property of the Seller until payment in full of the invoices, in accordance with articles 2367 to 2372 of the French Civil Code. In this regard, within the meaning of this clause, the actual presentation of a banker’s draft, bank or postal cheque, or any security creating a payment obligation do not constitute actual payment. The given payment can only be considered as made upon actual receipt of payment of the Price agreed by the Seller. If the Products subject to retention of title, have been resold by the Customer, the Seller’s debt will be automatically carried over to the debt for the price of the Products thus sold by the Customer. As of now, the Client transfers all debts arising from the resale of the unpaid Products, subject to the retention of title. In the event of bankruptcy protection, receivership or compulsory liquidation of the Customer, the Products can be demanded, in accordance with the legal provisions and/or regulations in force. In the event of partial or total non-payment, the Products in stock shall be deemed to equate to the unpaid debts. In accordance with articles L.624-9 and L.624-16 of the French Commercial Code, notwithstanding any clause to the contrary, this retention of title clause is binding upon the Customer. The Seller is, as of now, authorized by the Customer who agrees it, to draw up an inventory and/or sequester Products which the Customer has not paid for held by it. All instalments paid previously will remain received by the Seller, in their entirety, by way of a penalty clause. The Customer shall be held solely responsible for all risks of damage, loss, partial or total destruction, whatever the cause of the damage, even in an instance of force majeure. Consequently, the Customer shall insure the Products subject to retention of title, stipulating in the insurance policy that any compensation will be paid directly to the Seller and provide the Seller, when requested, any proof of insurance taken out. The Customer is required to inform all third parties, in particular in the event of confiscation, on account of the fact that the Products subject to the retention of title clause belong to the Seller, and to immediately inform the Seller of any confiscation or similar process..
CLAUSE 11. PRICE LISTS/PRICES AGREED
The Products will be invoiced according to the Price List in force on the day of the Order. The prices featuring on the Price List exclude Taxes and Local Taxes, and are Ex Cellar. The Customer is responsible for all taxes, duties, or other charges payable upon applying the regulations in force. When using the free delivery price: For orders below 1,200 bottles, carriage costs will be invoiced at the transport company’s rate. When using the ex cellar price: All deliveries to the Customer’s warehouse will be subject to carriage costs at the costs invoiced by the transport company (annex 1). Per the combined provisions of articles L.442-6, I, 12° of the French Commercial Code and 1164 of the French Civil Code, it is agreed between the Parties that the Seller shall have the right to unilaterally amend the Price agreed for the Products, on condition that the Seller justifies, if necessary upon the Customer’s request, the conditions for determining this price. The Seller’s Price List can therefore be modified at any time, taking account of the evolution of prices for agricultural raw materials, production costs, technological developments, input costs, workforce costs, packaging costs and any other alterations decided by the legislature. The new Price List will then be sent to the Customer within a minimum time period of 15 (FIfteen) days before its implementation. Any Customer making an Order after notification of the new Price List is deemed to have agreed to this time period which will prevail over all potentially differing information which may appear in the Order.
CLAUSE 12. PAYMENT CONDITIONS
Invoices are payable to the head office of the Seller by cheque, transfer, or bill of exchange accepted 30 days from the date of the invoice for the purchase of products liable to excise duty, provided for by article 438 of the French General Tax Code (Code Général des Impôts). Bills of exchange should be returned to the Seller with the Customer’s acceptance within 8 (Eight) days of delivery. No discount is given in the event of early payment. Purely delivering a bill of exchange or a cheque entailing an obligation to pay does not constitute payment, per the meaning of this clause. The prior acceptance of the banker’s draft or bill of exchange does not, under any circumstances, constitute an exemption from the time limit for the above-mentioned payment. Only settlement by the agreed due date fully discharges this obligation. According to the provisions of articles L.441-3 and L.441-6 of the French Commercial Code, any breach of contract by the Customer, whether total or partial, of its payment obligations or any delay will lead to liability by operation of law for payment of a penalty, without a reminder, of an amount equal to three times the legal rate of interest in force at the due date. Likewise, in the case of late payment, a fixed rate of compensation of 40 euros for the costs of recovery, provided for in articles L.441-6 and D.441-5 of the French Commercial Code, will be demanded by the Seller over and above the penalties for late payment mentioned above. It is hereby stated that this fixed rate of compensation does not restrict the amount of other costs which the Seller may incur for the purpose of recovering invoice amounts. Interest will start to run from the date of payment shown on the invoice and will continue to run until the date of full payment of all sums due to the Seller. Payment for any month commenced will be owed in full. By operation of law, the Seller can set off the aforementioned late payment penalties against any price reduction due to the Customer. In the absence of payment, even if partial, on one of the agreed due dates for any of the deliveries, the Seller reserves the possibility of demanding that all sums due from the Customer become immediately payable, for any reason whatsoever. In the event of payment by bill of exchange, if such a bill of exchange is not met it will be treated as a refusal of acceptance equating to a failure to pay. No payment can be subject to set off solely upon the initiative of the Customer, particularly in the case of the Customer alleging late delivery or non-compliance of the Product delivered, the prior written agreement of the Seller being essential. This applies, whatever the potential provisions to the contrary that may appear in the Customer purchase conditions. Any set-off not authorized by the Seller will equate to a payment default. This consequently authorizes the Seller to refuse all further Orders, and immediately suspend the deliveries in progress. having informed the Customer. In the event of a delay or total or partial breach of contract by the Customer of its payment obligations, the Seller will be able to notify the Customer, by registered letter with a request for an acknowledgement of receipt, of the suspension of its deliveries. These provisions will cease to be effective at the time of full and final settlement of unpaid invoices. The Customer will then agree de facto to the new delivery dates, which the Seller will notify it of. In any case, the Seller will have the right to no longer deliver new Orders to the extent that the Customer has not settled in full amounts due as principal, costs, interest and incidental expenses. In the event of manifest insolvency, payment beyond the due date, bankruptcy protection, receivership or compulsory liquidation, the Seller will be able to, subject to the mandatory provisions of article L.622-13 of the French Commercial Code, terminate in full by operation of law, the written Agreement, The Seller may use a simple notice given to the Customer by registered letter with a request for an acknowledgement of receipt, without any other formality and without prejudice to exercising all of its other rights. Any deterioration in the Customer’s credit will be able to at any time justify, depending upon the risks incurred, the fixing of a ceiling upon its potential discovery authorized by the Customer. This may require fixed payment dates, settlement including for Orders both in progress and future Orders, and express guarantees. This will notably be the case if a transfer, an agreement with a liquidator to manage a company in liquidation, making a property subject to a mortgage, or contributing its goodwill or specific business elements, or even a change of control or company structure or of its manager, is likely to have an unfavourable effect upon the Customer’s credit. In accordance with the provisions referred to in article L.622-7 of the French Commercial Code, formal agreement, in the event of the commencement of bankruptcy protection, placing in receivership or compulsory liquidation of the Customer, the as yet unpaid amount(s) for invoices that might have been issued for service provision by the Seller, and potential price reductions due, will offset the sums that remain owing to the Seller. These will become immediately due for payment.
CLAUSE 13. WRITTEN AGREEMENT/SPECIFIC CONDITIONS OF SALE/SPECIFIC SERVICES FAVOURING PRODUCT MARKETING/OTHER OBLIGATIONS INTENDED TO FAVOUR COMMERCIAL RELATIONSHIPS
13.1 – CONTENTS OF THE WRITTEN AGREEMENT
In accordance with the provisions of articles L.441-6 and L.441-7, I of the French Commercial Code, an agreement designated as the “Written Agreement” established between the Seller and the Customer that will be entered into before the 1st March in year N and will specify all of the obligations undertaken by the Parties with a view to fixing the Price agreed. Within this framework, the Written Agreement shall state:
1. The conditions for the sale transaction for the Products including these Standard Terms of Trading and the Price Lists which shall be annexed to the Written Agreement and the specific conditions of sale potentially agreed by the Customer, taking the form of discounts varying from these Standard Terms of Trading. For all that these specific conditions are fully justified in the light of the obligations agreed by the Customer and whose existence, at least potentially at the date of signature of the Written Agreement, must have been previously demonstrated by the aforesaid Customer.
2. The service advantages of commercial cooperation specific to favouring the marketing of the Products, by defining the services before providing them; the Products concerned, the dates of the aforesaid services, their manner of performance, their duration and payment. This applies except when the written Agreement takes the form of a framework contract which can partly refer to implementation contracts, but without these contracts for all that substituting the framework contract, which should be implemented prior to any performance of services.
3. The other obligations intended to favour the commercial relationship between the Seller and the Customer do not concern services specific to favouring the marketing of Products, by stating for each of them the subject matter, the anticipated date for completing the service and the manner of performance, as well as the payment or the price reduction relating to these obligations. The written Agreement will also state the projected annual turnover (excluding taxes) that the Seller and the Customer anticipate producing together, during the period covered by the Agreement. When the Customer is a wholesaler, within the meaning of the provisions of paragraph II of article L.441-7,-1 of the French Commercial Code, a written Agreement meeting the requirements of paragraph I of the same article will be concluded between the Seller and the Customer. In this regard, this must state the types of situations and manner, according to which the exceptional conditions of the sale transaction are likely to be applied. It is the Customer’s responsibility to check having regard to its specific characteristics, whether it can indeed enjoy this wholesaler status and thus guarantee as such to the Seller.
13.2 – METHODS OF CALCULATION AND PAYMENT OF FINANCIAL ADVANTAGES
No payment of discounts or payment for services specific to favouring the marketing of Products can take place before the return of one of the two original copies of the written Agreement duly signed, initialled and dated from the Customer, at the latest on the 1st March of the current year. In accordance with the provisions of article L.441-3 of the French Commercial Code, invoices for the provision of services made out by the Customer should include the name and address of the Parties, the issue date of the invoice, the dates for the beginning and end of the provision of service, its accurate description with in particular the Products and, failing that, the brands concerned, as well as the price excluding French VAT. Moreover, they shall include the business vehicle of the service provider company, the service or services concerned, its share capital, the registration number at the Trade and Companies Register, the head office and invoice numbers. These services provided are subject to French VAT at the rates in force. Moreover, they should in all respects comply with the provisions of article 289 of the French General Tax Code (Code Général des Impôts) and article 242 nonies A of annex II of this Code. The service invoices specific to favouring the marketing of Products and/or other obligations will be paid upon noting the actual completion of the service. They will not be payable by Product delivery invoices, and cannot be deducted when settling these, without the prior written agreement of the Seller. Any unauthorized deduction equates to non-payment by the Customer and will justify the refusal of delivery. When the amount of a financial advantage (remuneration for provision of services or discounts) is determined by applying a percentage to the turnover. this is is taken to mean the turnover net of all Taxes and Local Taxes, produced by the Seller together with the Customer where payment has been received. The discountable basis
will be made up of the turnover reduced by all sums retained by the Customer for any reason whatsoever and, particularly, for the purpose of the invoicing of penalties whatever the cause, save and except for prior and written acceptance by the Seller. In the event that the payment of discounts and/or for services specific to favouring the marketing of Products and/or other obligations that might be made by instalments, the turnover retained as the calculation basis, will be that produced for the year N-1. However, should there be a significant decrease in turnover produced by the Seller with the Customer during year N, compared to the same period in the year N-1, the Seller will be able to request at any time, that the Customer reduces the instalment amounts. The Seller and the Customer shall meet to agree a new method for determining instalments. In the event of the delayed payment of commercial cooperation service invoices and/or other obligations, the rate of interest for late payment penalties payable by the Customer on the day after the settlement date appearing on the invoice cannot exceed three times the legal rate of interest. No penalty for late payment of instalments shall be agreed by the Seller.
CLAUSE 14. PROMOTIONAL CAMPAIGNS – NPIs (NEW PROMOTIONAL INSTRUMENTS) – MANDATE CONTRACTS
In the event that the Seller and the Customer implement one or more sales promotion campaigns for Products, these should be fixed as part of a mandate contract, as the French Civil Code both acknowledges and defines (article 1984 et seq.) in accordance with the provisions in the 8th sub-paragraph of article L.441-7, paragraph I of the French Commercial Code and strictly in compliance with the provisions of order number 2018-1128 of 12th December 2018 relating to raising the resale-below-cost threshold and the promotional management for foodstuffs and certain food products. The dual upper limit of promotions anticipated by this order must be strictly respected. To this end, the Customer undertakes to inform the Seller of all promotional campaigns relating to its products, that it will arrange on its own initiative during the period covered by the written Agreement, at least one month before the start of such a campaign. The Seller is likely to agree to these campaigns provided that the following requirements are respected:
– the precise nature of the campaign, the date it is carried out and the duration, the points of sale affected by the campaign, the nature of the Products it pertains to as well as the total unit advantage, should be defined by mutual agreement, by means of a written contract, established prior to the campaign(s) in question;
– in accordance with the provisions of article 1993 of the French Civil Code, the Customer is responsible for accounting to the Seller for the correct execution of the campaigns concerned: the Customer’s account rendered shall be accompanied by the supporting documents for the sale of the Products and the price reduction payments in question and/or virtual batches and/or free Products, or in general, any supporting document guaranteeing the successful execution of the campaign concerned. No settlement can take place prior to this rendering of accounts. This rendered account shall be sent to the Seller within 30 days following the end of the campaign.
– initiating promotional mandate contracts remains the sole responsibility of the Seller, who remains the sole arbiter of the commercial opportunity, on a case-by-case basis, for all such campaigns. As a consequence, the Customer cannot in any case claim being granted by the Seller a budgetary envelope relating to such mandate contracts, or claim the balance of this potential envelope, which would not therefore in any case constitute the Customer’s acquired right.
CLAUSE 15. INTELLECTUAL PROPERTY RIGHTS
The Seller is the owner of all of the intellectual property rights covering the Products sold to the Customer under the various Brands. The Products delivered by the Seller under the given Brands are only able to be resold in their original packaging and in the conditions complying with their brand image and specific characteristics. The Customer will inform the Seller, by e-mail, confirmed by registered letter with an acknowledgement of receipt, as soon as it is aware of all legal action brought against it regarding the intellectual property relating to the Products. It will take no steps without having previously informed the Seller, who has the sole right to conduct proceedings and to decide all action to commence or carry out. The Customer undertakes to respect the Seller’s intellectual property rights, for which it states having full knowledge. If the Customer commits to any costs relating to all types of
legal proceedings which might concern the Seller, and on the basis of which the Customer might believe it is justified in claiming damages, and without prior agreement of the Seller, the Customer will bear the aforesaid costs, without being able to demand any reimbursement of the sums committed. The Customer who might have knowledge of an infringement of the Brands or, more generally, intellectual property rights held by the Seller, should immediately inform the latter by e-mail confirmed by registered letter with a request for an acknowledgement of receipt.
CLAUSE 16. EXCLUSION OF ALL AUTOMATIC PENALTIES
The penalties are intended to compensate for the damage or loss resulting from a breach of contract. The Seller will refuse the systematic and arbitrary application of predetermined penalties suffered by the Customer, which are not proportional in nature to the potential loss or damage suffered by the latter. Notwithstanding any contrary clauses or provisions appearing in the purchase conditions, referencing agreements, the annual business plan, specific logistical conditions, etc. of the Client. As a consequence, no penalty can be invoiced or deducted from the payment of Products by the Customer without the Seller being able to control the existence of the breach of contract and loss or damage cited by the Customer, according to the provisions of article L.442-6, I, 8° of the French Commercial Code, and having given its prior written agreement. It is agreed that the only loss or damage able to be cited by the Customer may be linked to the proven absence of the products within the Customer brands, as a result of a proven breach by the Seller of its contractual obligations. The Seller is available to the Customer to consider damages, and in this regard assess all potential loss or damage, for which the Customer should provide proof. To this end, the Customer should provide the Seller with all documents enabling conflicting analysis of the breach invoked and attesting to the loss or damage actually suffered. The Seller will have a time period of 30 (Thirty) days to analyse the documents sent and inform the Customer of its agreement or disagreement as to the breach invoked and the amount of the compensation claimed. Any automatic debit, whatever form it takes, by the Customer in breach of these provisions, shall equate to a payment irregularity, authorizing the Seller to refuse all new orders, stop deliveries relating to orders in progress and suspend payment of discounts and other financial advantages. Moreover, the Seller shall reserve the right to deduct from discounts and payment for services due any amount that the Customer has automatically deducted.
CLAUSE 17. COMMERCIAL DISPUTES
Any commercial claim or dispute by the Customer, relating to the entire commercial relationship with the Seller, and in particular for the payment of financial advantages, whatever their nature, concerning year N, shall be made at the latest upon the expiry of the calendar year N+1. In the absence of and by formal exclusion of the provisions referred to under article L.110-4 of the French Commercial Code, no claim or dispute can be made and will consequently be considered, as being time-barred and therefore inadmissible.
CLAUSE 18. CONFIDENTIALITY
The Seller and the Customer acknowledge that they will, as part of performing their commercial relationship, be entrusted with confidential information, of a technical, commercial, marketing or financial nature or relative to the elements to which intellectual property rights attach. However, this list is not exhaustive. This information will not be divulged to third parties in any way. The Seller and the Customer guarantee the confidentiality of the information, of any nature whatsoever, whether written or oral, which they know about within the performance of their commercial relationship and abstain from communicating it to others, other than those who are in a position to be aware of it pursuant to this relationship, failing which they will have to compensate for the loss or damage suffered.
ARTICLE 19. PERSONAL DATA
The Seller and the Client undertake as part of the collection and processing of personal data, to respect by the provisions of law no. 78-17 of 6th January 1978 relating to data processing, files and freedoms as amended in particular by the adapting law no. 2018-493 of 20th June 2018 relating to the protection of personal data and the EU regulation 2016/679/EU of 27th April 2016 “relating to the protection of natural persons with regard to the processing of personal data and on the free movement of such data.” – the General Data Protection Regulations. The Seller, responsible for processing, carries out personal data processing in customer relationship
management, including the Customers and when performing the contract of sale concluded with them. The data collected (for example surnames, forenames, e-mail addresses and telephone numbers of the Customer’s employees and colleagues) is necessary for this processing and is intended for the Seller’s related services and, where appropriate, for its service providers and/or sub-contractors. They are kept for the entire duration of the commercial relationship, plus 10 years running from the end of such a relationship. The Customer employees and colleagues have a right of access, rectification and deletion of their personal data. They also have a right to limit the data processed and a right to oppose given data processing for legitimate reasons, a right to data portability, a right to implement advance directives post-mortem. To exercise these rights, they should send the Seller an e-mail at the contact address email@example.com or a letter to the address Domaine des Tournels 419 Chemin des Tournels 83350 Ramatuelle accompanied by a copy of their ID. They also have the right to make a complaint with the CNIL (France’s Data Protection Authority). The Customer undertakes to inform its employees and colleagues about this provision.
CLAUSE 20. APPLICABLE LAW – JURISDICTION
The entire contractual relationship between the Seller and the Customer arising from the application of these Terms of Trading, and the potential agreements which may be concluded, and all disputes arising therefrom, of any nature whatsoever, shall be subject in all respects to French law. The provisions arising from the United Nations Convention on Contracts for the International Sale of Goods, signed in Vienna on 11th April 1980, do not apply to the commercial relationship between the Seller and the Customer. The Parties will do everything possible to amicably resolve disagreements likely to result from the interpretation, performance or termination of the commercial relationship between the Seller and the Customer. In the absence of an amicable agreement, any dispute originating from the contractual relations established between the Seller and the Customer, as well as the transactions which will arise as a consequence of it will be subject to the Commercial Court (Tribunal de Commerce) of the head office of the Seller, notwithstanding all incidental requests or claims for contribution from third parties, or in the event of the plurality of defendants, and subject to the application of the provisions of article D.442-3 of the French Commercial Code. This jurisdiction clause will apply even in the event of an emergency appeal to a judge or proceedings taking the form of such an application, as provided for by article L. 631-28 of the Rural and Maritime Fishing Code (Code Rural et de la Pêche Maritime), as amended by the Egalim (the agricultural and food sector law aiming to protect farmers’ incomes passed in 2018). Nevertheless, the Seller has the right to refer any such issues to any other competent jurisdiction, in particular that of the Customer’s head office or that of the delivery location for the Products. The use of bills of exchange or acceptance of payment does not effect either novation or exclusion of this clause.
ARTICLE 21. ENTRY INTO FORCE
The current Standard Terms of Trading have been effective from 1st March 2020. They supersede those established prior to the date of these terms. The Customer acknowledges having read and understood all of the Sellers’ Standard Terms of Trading, having received a copy and agreed to them.