GENERAL TERMS AND CONDITIONS OF SALE - CARGILL FOODS
FRANCE S.A.S hereafter the “Company”
Edition – November 2014
Article 1 – Applicability – Enforceability
These General Conditions shall apply to any and all of the Company’s sales
and shall be completed or amended by the Particular Conditions.
Therefore, any Order placed shall abide entirely by these General
Conditions, excluding any other document such as advertisements,
catalogues, issued by the Company and which shall only be considered as
informative. Unless otherwise agreed in writing, any contradictory condition
raised by the Client shall not apply, no matter when it was first brought to the
Company’s knowledge.
No waiver by the Company of any term of these General Conditions, on one
or more occasions, shall be construed as a waiver or shall limit or restrict the
future exercise or enforceability of the rights in question.
Article 2 – Order Confirmation
For Purchase Orders processed via Electronic Data Interchange (EDI): The
Purchase Orders shall be integrated automatically by the Company. In case
of incompatibility or rejection of the Purchase Order for whatever reason, the
Sales Management Department of the Company will get in touch with the
Client.
For Purchase Orders placed by any other means of communication than
EDI, the Purchase Orders shall only be considered definitive once a written
and signed Order Confirmation has been sent by the Company’s
Representative or by one of its employees.
The Sale exclusively concerns the goods described in our Contracts and/or
Order Confirmation. In the absence of a written contract, any delivery of
goods shall constitute a separate contract.
Article 3 – Modification of the Order
Unless made in writing at least one (1) day prior to the goods’ shipment, any
modification or cancellation of the Order, requested by the Client, shall not
be considered.
Article 4 – Delivery
4.1 Terms. Delivery shall occur either according to the
Incoterm FCA place oif delivery as agreed with the Client or at departure
from the refrigerated warehouse used by the Company, either on arrival of
the goods directly to the Client, or when notice that the goods are ready for
dispatch or at the Company’s premises when remitted to a carrier or shipper.
The Client undertakes to collect or take delivery of the Goods at the agreed
date and time. In any case, its agreed that the Company or any third party
acting on its behalf for the remittance of the Goods shall be deemed to act
as a remitter of the Goods and in no case as the expeditor of the Goods. In
the event the Client would refuse or fail to collect the goods at the agreed
period or date or if the Company fails to deliver as a result of the Client’s
default to provide the right information concerning shipment or
authorizations, documents or the appropriate licenses, then and
notwithstanding any right of recourse made available to the Company :
-The Company reserves the right to store the goods until their takeover
by the Client and shall be indemnified by the Client for the goods and costs
(including insurance) incurred for transportation to the storage facility, costs
of storage, and, in the event the Client would persist in not taking over the
goods, the costs of return to the Company; and/or
-The Company reserves the right to sell the goods to the highest
possible bid and shall invoice the Client any difference with the agreed price
increased by the additional expenses that may occur during the resale
(including without limitation the repackaging costs); and/or
-The Company shall have the right to terminate the Order, without prior
notice.
4.2 Quantity. Delivery of the goods, with a shortage or
surplus not exceeding 5% of the ordered quantity or volume, shall, at the
sole option of the Company, be considered a perfect execution of the
Contract and the Client shall not in any case refuse the delivery or present
any claim on that matter. Unless otherwise agreed, the accurate quantity of
goods delivered to the Client shall be presumed to be the one indicated on
the delivery note established by the Company upon departure of the goods,
unless the Client can prove otherwise.
The minimum for any Order is one (1) pallet of Goods. The Company
reserves the right to reject any Purchase Order for any quantity less than
one (1) pallet..
4.3 Time. Delivery times are indicated as precisely as
possible but depend on the Company’s procurement, production and storage
possibilities.
Any late delivery shall not give rise to any damages, deduction of price or
cancelation of the ongoing Orders. Notwithstanding, in the event the delivery
has not occurred two months after the indicated delivery date, for any reason
other than force majeure, the sale shall be cancelled by either Party without
other indemnity or damage.
Are considered force majeure exonerating the Company from performing its
obligation of delivery; war, riot, fire, strikes, accidents, impossibility for the
Company to be supplied.
The Company shall keep informed the Client, as soon as practicable, of any
case or event listed above.
In any case, delivery of the goods in time can only occur if the Client is up to
date in its obligations toward the Company, whatever the situation may be.
4.4 Risks. The goods shipped in France shall always travel
at the Client’s risks notwithstanding the conditions of sale and the way of
transportation; risks shall pass upon handing over to the carrier.
Nevertheless, the Company reserves the right to decline any loading of
goods where the carrier hired by the Client does not comply with food safety
or refrigerated transport rules (temperature hold at -18 °C).
In the event of a delay, damage or default, the Client shall reserve its rights
toward the carrier for three days following delivery of the goods by registered
letter with a return receipt. In the event of an international sale, our
shipments follow Incoterms’ provisions as detailed in the Particular
Conditions and as published by the International Chamber of Commerce in
Paris (latest edition since the delivery date).
Article 5 – Claims
Notwithstanding the particular precautions to take toward the carrier, claims
arising out of visually detectable defects or any non-conformity of the
delivered goods compared to the Order or the delivery note shall be notified
in writing three days upon arrival of the goods.
It is the Client’s duty to provide all justifications as to the reality of the defects
or non-conformities noticed. The Company shall then have the opportunity to
examine the goods and provide remedy to the defects. The Client shall not
intervene or request the intervention of any third Party.
Article 6 – Return of the goods
Any return of the goods shall be agreed by both Parties. Any good returned
without a prior agreement shall be held for the Client’s account and shall not
result in the issuance of a credit note. The costs and risks of return shall
always be the Client’s.
The goods returned shall be in a similar state as to when they were
delivered by the Company.
Article 7 – Warranty & Exclusion
7.1 Scope. The Company’s liability is strictly limited to the
goods not in conformity with their specifications. The Company warrants that
the goods sold in accordance with the present Conditions conform, on a
quality and quantity level and as for the description, to the characteristics
indicated on the price and/or Order confirmation.
In the event, the goods would not be compliant with the here above
mentioned quality, the Client shall report the defect according to the
provision of article 5 and shall choose between replacement of the goods
declared not conform, or the goods’ reimbursement in whole or in part,
excluding any damage remedy.
7.2 Exclusion. The warranty shall not apply to the visually
detectable defects. The Company shall not be held liable if the defect and
deterioration result from a normal wear or from any modification not
previously approved by the Company. Furthermore, the Company shall not
be held liable for any loss or damage incurred as a result of a failure to
observe the instructions of use or the fair industrial practices, including
without limitation, those relating to the storage, handling, mix and use of the
goods.
Notwithstanding the here above, the Company’s aggregated liability for not
observing these Conditions or for a series of defaults related to these
Conditions or to the Contract or resulting or in relation with the Contract or
with the goods, shall be limited, unless otherwise specified, to fifty percent
(50%) of the commercial value of the Contract concerned, subject to a cap of
one (1) million of United States Dollars.
The Company shall not be held liable for any (i) loss of profit, loss of
goodwill, loss of brand value, loss of reputation or loss of future sales, or (ii)
for any claim from the Client or any other person for any consequential and
indirect damages.
Article 8 – Price
The goods are invoiced according to the applicable price at the day of
delivery or of the successive deliveries. Notwithstanding, any increase in the
prices resulting from a variation of the economical conditions or from any
change in the legislation, taxes, charges, taxation or any applicable payment
to the Company or to the goods may result in a revision of the prices.
Furthermore, the Company shall terminate the contract or refuse to execute
the Order, without any indemnity, in the event the economical modifications
or changes in the legislation were to significantly affect the Company and if
these difficulties could not be resolved by an increase in the goods’ prices.
Article 9 – Invoicing
An invoice shall be issued for each delivery and sent at the time of delivery.
Article 10 – Payment
10.1 Terms. Unless otherwise specified on the invoice, all
goods are payable upon reception.
In the event of a latter payment, applying law n° 2008-776 dating from the
4 August 2008 (Loi de Modernisation de l’Economie or LME), the payment
shall be made no later than 45 days end of month and 60 days from the
invoicing date, from the 1st of January, 2009. All invoices are payable at the
Company’s head office, any bill of exchange or payment acceptance shall
not be considered as a novation or exemption to this clause.
10.2 Delay or default. In the event of a late payment, the
Company may put on hold any ongoing Order, without prejudice to any
recourse other than the ones detailed in section 10.3 hereafter.
Any amount unpaid upon due date shall result in the application of penalties
up to three times the French legal interest rate. These penalties shall be
payable upon the seller’s request.
In addition to the late payment penalties, a fixed sum to cover internal
recovery costs of EUR 40 shall be payable (Directive 2011/7/EU of the
European Parliament and of the Council of 16 February 2011)
In the event of a payment default, forty eight (48) hours after an unanswered
notice, the sale may be terminated at the option of the Company, which shall
ask, through a summary judgment, recollection of the goods, without
prejudice to further damages. The cancellation shall affect the related Order
but also, any previous order, delivered or not, whether the payment is due or
not.
In the event of a payment by bill of exchange, the default in returning the bill
shall be considered as a payment default. Accordingly, in the event the
payment is spread, failure to pay at one of the due dates shall make the
entire debt immediately due, without prior notice being required.
In any of these cases, the amounts due for other deliveries or for any other
service shall become immediately payable unless the Company opts for the
cancellation of the related orders.
The Client shall reimburse all costs incurred while recovering the due
amounts, including legal expenses.
Payments shall never be set off without the seller’s prior written agreement.
Any partial payment shall first apply to the debt’s part not subject to a lien,
then to the oldest amounts due.
The Company shall not agree to any discount for payment in cash or at a
date prior to the Particular Conditions’ one.
10.3 Payment or insurance requirements
Any deterioration of the Client’s creditworthiness shall justify the obligation to
issue a guarantee for the proper execution of any confirmed Order.
It shall be the case if the debtor’s legal capacity was to change, in case of
significant change in its business such as a transfer, lease, security taken or
capital investment in a business has an unfavorable effect on the Client’s
credit.
Article 11 – Retention of title
THE COMPANY SHALL KEEP TITLE OVER THE GOODS UNTIL FULL
PAYMENT OF THE PRICE. ISSUING AN OBLIGATION TO PAY (LIKE A
BILL OF EXCHANGE) SHALL NOT CONSTITUTE A PAYMENT. FAILURE
TO PAY AT ONE OF THE DUE DATES SHALL RESULT IN THE GOODS’
CLAIM. THESE PROVISIONS SHALL NOT PREVENT THE TRANSFER OF
RISKS TO THE CLIENT, UPON DELIVERY OF THE GOODS, AS WELL AS
ANY DAMAGE THAT MAY OCCUR.
Article 12 – Applicable law - Jurisdiction
FRENCH LAW SHALL BE APPLICABLE.
ANY DISPUTE OR DIFFICULTY ARISING OUT OF THE ORDER‘S
EXECUTION WHICH COULD NOT BE SETTLED AMICABLY BY THE
PARTIES, SHALL BE SUBMITTED TO THE EXCLUSIVE JURISDICTION
OF THE COMPETENT COURT WHERE THE COMPANY’S HEAD OFFICE
IS LOCATED,
Article 13 – Termination
The Company shall terminate the Contract(s) concluded with the Client in
the event of death or a payment failure for more than two months, an
insolvency or liquidation procedure, subject to the applicable laws related to
insolvency proceeding.