General Terms and Conditions of Sale – Applicable from 1st January 2021
The present General Terms and Conditions of Sale form the sole basis for all commercial negotiation. They govern all sales of seafood products, whether live or not, fresh or frozen, preserved or not and whatever their packaging (hereinafter, “the Product(s)” by all companies owned directly or indirectly by the company Océalliance (hereinafter, “the Supplier”).
They prevail over any document of the customer (hereinafter, the “Customer”), and, in particular, over all general terms and conditions of purchase including those provided prior to the present General Terms and Conditions of Sale, not expressly accepted in writing by the Supplier.
Any commercial relationship with the Supplier implies unconditional adherence to the present General Terms and Conditions of Sale.
Article 2: Orders
Orders can be placed with the Supplier by all means (telephone, fax, email, etc.).
Orders placed with the Supplier are irrevocable for the Customer and cannot be cancelled or amended, except where agreed by the Supplier.
Availability of the Products ordered being subject to various uncertainties, and, in particular, those relating to fishing, the Supplier cannot guarantee to the Customer that every Product ordered can be delivered to it. In the event of unavailability of a Product, the Supplier reserves the option of offering a Product of similar quality. The sole fact that the Supplier commences performance of the order constitutes acceptance by the Supplier.
The Supplier reserves the right to require written confirmation from the Customer (fax, telecopy, email or other means) of its initial or additional order.
Article 3: Preliminary obligations of the Customer
Before an initial order, each Customer undertakes to return, duly completed and signed, the account application form containing unconditional acceptance of the present General Terms and Conditions of Sale, a copy of which is returned to the Customer, accompanied by a KBis extract from the past three months and bank account details in addition to a direct debit authorisation to enable the payment of invoices issued by the Supplier.
In the case of any change to the information provided on this form, the Customer undertakes to notify the Supplier of this as soon as possible and at the latest eight (8) days after the change.
The Supplier remains completely free to refuse to open an account for any Customer making an application. The Supplier is not obliged to provide reasons for its refusal to open an account. In any event, the Customer cannot argue from the absence of an account being opened that it can refuse to perform its obligations for any order accepted and/or executed by the Supplier.
Article 4: Prices
Product prices vary daily depending on market prices. Products are invoiced in euros excl. tax at the rate in effect on the date that the order is taken. For Products delivered in France, VAT applicable on the date of order shall be added to the prices.
Based on the delivery option selected for the Products, the price will be Ex Works (EXW) or Carriage Paid to (CPT).
Article 5: Payment of the price
The price is payable thirty (30) days after the 10-day delivery period, by bank transfer, cheque or direct debit.
No discount is provided to the Customer for early payment.
The Supplier is entitled to obtain financial information on the Customer’s circumstances and/or, if necessary, to request from it guarantees that it considers to be required to ensure proper fulfilment of the commitments undertaken. Refusal by the Customer to fulfil these or a weak financial situation entitles the Supplier to cancel all or part of the orders in progress or to require cash payment for pending or future order(s).
Article 6: Delay and default in payment
Default in payment on the maturity date shall entail the immediate and automatic application of late-payment interest equivalent to six per cent (6%) applied to the total amount of sums owed.
Late-payment penalties shall be payable automatically without the necessity of a reminder. This provision will remain applicable, in particular, in the event of cessation of activity, protective measures, receivership, administration or liquidation or in the event of sale of the Customer’s business assets.
Default in payment on the maturity date shall also entail the immediate and automatic application of a lump sum of forty (40) euros for recovery fees. This lump sum is added to the late-payment penalties, but is not included in the calculation basis for the penalties. This fee is payable for each invoice paid late.
Further, under the penalty clause, in addition to late-payment interest, a fixed penalty of 20% of the total amount of all the sums owed, principal and interest amounts, shall be added to all sums recovered through litigation in the event of fault of the Customer, without prejudice to any other request.
In the event of non-payment on the maturity date of any invoice, the Supplier may suspend delivery of orders in progress and refuse any new orders, without having to inform the Customer of this.
Similarly, non-payment of an invoice on its maturity date shall entail early repayment of all invoices from the Supplier not yet due.
Payments cannot have any set-off or reduction (by application of penalties, for example) applied to them nor may they be refused on the Customer’s initiative, in particular, where there is an allegation of late delivery or total or partial default relating to the Products, without the Supplier’s prior, written agreement, and without the Supplier having been able to verify the accuracy of the alleged complaint.
Article 7: Delivery
The Products are packaged by the Supplier, in accordance with market practices.
The Products are delivered based on the agreement with the Customer, either ex works or carriage free.
Returnable containers must be returned by the Customer to the Supplier, as soon as possible and using the Supplier’s carrier with the Supplier’s agreement or at the Customer’s expense. The number of returnable containers delivered is indicated on the invoice for the relevant Products. Each return of containers by the Customer must be specified on a delivery note. Any dispute relating to the quantity of returnable containers received must be notified to the other party within a period of 24 hours from receipt. Every six months, the Supplier will inventory returnable containers shipped and returned and may invoice the Customer for any returnable packaging delivered and not returned for over a month.
Article 8: Delivery periods
The delivery periods are indicated as precisely as possible when the order is taken but are dependent on the availability of stock and transport.
In any case, any delay or default in delivery does not authorise the Customer to cancel the sale, to refuse the Products or to claim any compensation whatsoever. The Customer is obliged to take any necessary measures to enable the Supplier to comply with the delivery periods/schedules, and the Supplier shall inform the Customer thereof in advance. The Supplier shall automatically be released of any commitment if the Customer has not taken these necessary measures.
Article 9: Reservations / Returns
Upon receipt of the delivery, it is the Customer’s responsibility to express any reservations by registered post within a period of 72 hours to the carrier, sending us a copy and taking any necessary measures to safeguard its interests, in compliance with Article L133-3 French Commercial Code.
Where the Customer itself places an order and/or takes delivery of the Products at the Supplier’s distribution centre, it undertakes to verify on site the quality and quantity of the Products purchased. Pick-up is valid for transfer of risk relating to the Products, full acceptance of the delivery and waiver of any recourse for non-compliance.
Without prejudice to the steps to be taken by the Customer vis-à-vis the carrier, to be admissible, any claim relating to the quantity or quality of the Products delivered must be notified upon receipt by telephone to the Supplier, then confirmed in writing (by telecopy or email) at the latest within twenty-four (24) hours for fresh and cooked Products, within twelve (12) hours for live Products and forty-eight (48) hours for frozen Products calculated from receipt of the said Products.
After these deadlines, any delivery will be considered as compliant and cannot give rise to any claim for non-compliance.
Each claim is assessed by the Supplier’s sales manager who has sole power to determine whether it is justified and to specify the conditions under which the Products can be exchanged or taken back with entitlement to a credit note. No Product can be returned without the prior, written agreement of the Supplier.
In any case, return or exchange of a Product presumes that it will be returned in pristine condition and in its original packaging. Return of part of the Products delivered does not release the Customer from its obligations and, in particular, that of paying invoices on the maturity date.
Article 10: Retention of ownership
The Supplier retains ownership of the Products sold until complete payment of the sale price, interest, fees, taxes and incidental expenses included, payment not being considered to have been made until actual receipt.
Default in payment on any maturity date whatsoever may entail the Products being reclaimed. Without prejudice to any other actions which it may be entitled to bring on this basis against the Customer.
While awaiting complete payment of the prices, the Customer may freely dispose of the Products sold by the Supplier within the scope of normal operation of its activities. In the case of resale of the Product not paid in full, the Supplier has consequential rights to the resale price of the Products.
Article 11: Transfer of risk
Transfer of risk of any kind occurs at the point that the Products are provided to the carrier or exit our warehouses. Whatever the shipping conditions, the Products always travel at the Customer’s risk and it is the latter’s responsibility to safeguard its rights vis-à-vis the carrier, with sole responsibility in the event of delay, theft, damage or loss of the Products en route.
Article 12: Warranty
The Supplier shall apply the utmost care to execution of the order and to the quality of the Products. In the event of defect recognised by the Supplier, the latter’s obligation shall be limited to replacement or refund of the defective Products, without other compensation. Excluded from the warranty are defects and damages outside the scope of the Supplier’s obligations and resulting from storage, handling, transport or use in conditions that are unusual or inconsistent with the nature of the Product, instructions for its use or its suitability for use.
In any case, the Supplier’s liability is limited to the amount of the Products invoiced and expressly excludes all damages other than direct damages.
Article 13: Force majeure
The Parties may not be held liable if non-performance or delay in the performance of any of their obligations, as described herein, results from force majeure, within the meaning of Article 1218 French Civil Code, notably strikes, bad weather, demonstrations or any other events affecting conditions for shipments and the transport of goods. In the case of temporary impediment of less than 48 hours calculated from the order, performance of the obligation is suspended. If the impediment lasts for longer than 48 hours, the contract shall be terminated automatically, and the Parties are released from their obligations.
Article 14: Personal data
To manage the commercial relationship and, in particular, the taking of orders and any potential claims, each of the Parties shall process information of the other Party which may be connected to natural persons and, in particular, the surnames, first names, email address of employees entrusted with management of the commercial relationship.
The Parties undertake to process personal data in conformity with the law and in particular the French law of 6 January 1978 relating to data processing, files and freedoms and EU Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. These require any service provider who processes personal data on their behalf to comply with these obligations.
Personal data will be retained by the Parties for the period necessary for proper management of the commercial relationship.
The rights of data subjects relating to their personal data, namely the right of rectification, access, deletion and, if relevant, the right of portability, the right to object and to restrict processing may be exercised by sending a letter to the registered office of the other Party as stated at the top of the present Terms and Conditions accompanied by proof of identity for the individual concerned.
Data subjects, where they consider that the processing of their data is not compliant with the regulations in force, can file a complaint with the competent authority, which, in France, is the National Commission for Data Protection [Commission Nationale de l’Informatique et des Libertés].
Article 15: Applicable law
Any and all orders are governed by French law. The present Terms and Conditions are written in French. If they are translated into one or more other languages, only the French text would prevail in the event of a dispute.
Article 16: Attribution of jurisdiction
In the event of any disagreement or dispute relating to the present General Terms and Conditions of Sale, to the relations between the Parties, to the offer and sale of the Products, the Parties undertake first to seek an amicable solution. Any disagreement or dispute not settled amicably within a period of one month, under the conditions provided in the previous paragraph, will be subject to the exclusive jurisdiction of the Commercial Court with competence for the Supplier’s registered office, including in the case of summary judgement, where there are multiple respondents, ancillary claims or third parties are introduced.