EUROSERUM SAS (France)
These terms and conditions of sale (TCS) hereby invalidate and replace all previous versions. They may subsequently be superseded by a new version.
Latest version as of 06/01/2016 (June 2016)
ARTICLE 1: SCOPE OF APPLICATION
1.1 – These TCS set out the rights and obligations of the company EUROSERUM (‘the Vendor”) towards its clients (“the Client”). They are applicable to all sales of products by the Vendor, subject to any special conditions, addenda, framework agreements or modifications made to these TCS by explicit, written agreement between the parties.
1.2 – A contract of sale is formed by the Vendor’s proposition (in its final incarnation) and the acceptance of this proposition by the Client with respect for the conditions set out in Article 2.
All references to numbers of days made in these TCS should be understood to refer to working days, i.e. excluding Saturdays, Sundays and French national holidays.
1.3 – By placing an order, the Client fully and unreservedly accepts the clauses and conditions of these TCS, notwithstanding any clauses included in other commercial documents such as order forms, and particularly the Client’s terms and conditions of purchasing.
ARTICLE 2: PROPOSITION – ORDER
2.1 – All orders for Products placed by the Client must be made with reference to a proposition issued by the Vendor.
Propositions made by the Vendor will be expressed in writing, in a clear, precise and explicit manner. As such, any other commercial proposition made by the Vendor – including all information featured in catalogues, price tables, technical and commercial materials – is given for information purposes only, and should under no circumstances be understood to constitute a formal offer whose acceptance would place a binding obligation upon the Vendor.
The Vendor hereby reserves the right to withdraw Products from the aforementioned price tables and commercial documents without prior warning.
Similarly, the Vendor is entitled to make changes to Products without prior warning, for reasons of technical progress or in response to changing regulations, even if such changes should alter the technical properties of the Products in question.
2.2 The Vendor’s sales propositions are valid only for the duration of the reflection/confirmation period specified on each quote. Unless otherwise specified, this period is set at 7 days. The Vendor reserves the right to withdraw or modify propositions which have not yet been accepted by the Client.
If the proposition is not accepted before the stated deadline, it will automatically be considered null and void.
2.3 By placing an order in response to a proposition made by the Vendor, the Client fully and unreservedly accepts this proposition. The Client’s orders must explicitly refer to the corresponding proposition, complying with the terms and conditions of this proposition (price, currency, quantities, incoterms, deadlines, Product specifications and references, payment method and deadline). Failure to comply will entitle the Vendor to refuse or modify the order.
2.4 All accepted propositions and orders establish a firm and definitive obligation between the Client and the Vendor. As such, orders may not be wholly or partially modified or cancelled by the Client without the explicit, written approval of the Vendor.
Products will be supplied by the Vendor subject to available stocks. The Vendor cannot be held responsible in cases of total or partial stock shortages, making it impossible to deliver the requested quantity of the Product ordered.
In all cases, including in the event of a cancellation of modification accepted by the Vendor, the Client will bear sole responsibility for the consequences of these changes, and accept all associated costs.
In the event of a delay extending beyond the delivery period specified in the commercial proposition, the Vendor reserves the right to apply penalty charges equivalent to 1% of the total value of the affected products for every 10 days overdue, up to a maximum of 5% of the total value of the affected products.
If the delay should last for more than 2 months, the Vendor reserves the right to terminate the contract.
ARTICLE 3: PRICES – INVOICING
3.1 Products are sold at the prices specified in the sales proposition, valid for the period specified in this document.
Prices are given in a specific currency, exclusive of tax and corresponding to the incoterm cited in the sales proposition (as per the latest version of the ICC Incoterms® in application as of the date on which the contract of sale is finalized). If no incoterm is specified in the proposition document, the applicable incoterm shall be “FCA – Vendor’s factory’.
3.2 The Vendor nonetheless reserves the right to modify the price quoted in the original proposition, as long as it has not yet been accepted by the client.
3.3 – Invoicing
The Vendor’s invoices will be issued subject to the legal and/or regulatory requirements currently applicable in France. The Client shall undertake to inform the Vendor in a timely fashion of any important rules regarding invoicing and payment which apply in the country in which the Products are to be sold.
Invoices cannot be exempted from VAT unless the Client provides the Vendor in advance with documents which justify this exemption (an intra-Community VAT number for Clients based within the European Union, or certification of the Client’s exemption from VAT duties). The Client must notify the Vendor in the event of a transaction to be conducted subject to the procedure which applies to export sales by international trading firms.
In all cases, the Client will be held liable for any VAT deemed to be outstanding in the event of a subsequent claim or refusal by the authorities to recognise their exemption, pending inspection of the necessary documents.
In order to be considered valid, all disputes concerning invoices (price, quantities etc.) must be addressed to the Vendor by recorded post with proof of delivery, or else by fax or email, within no more than fifteen (15) days following the issuing of the disputed invoice.
Registering a complaint regarding an invoice in the correct format does not guarantee that the complaint will be upheld, as it remains subject to analysis by the Vendor.
Complaints and queries regarding invoices cannot be used by the Client to justify the suspension, postponement or total or partial cessation of payment with regard to the invoice in question and/or any other invoice issued by the Vendor.
ARTICLE 4: DELIVERY – RECEPTION
4.1 – Transport, delivery and transferral of liability
The notions of delivery and place of delivery used in our sales propositions correspond to the definition given in the Incoterms® published by the International Chamber of Commerce – specifically the version in application on the date on which the contract of sale is finalized.
The Incoterm used will determine the allocation of tasks (packing, handling, transport, customs obligations, insurance), risks and costs. In all cases, unloading of Products is conducted at the Client’s risk.
4.2 – Deadlines
The deadlines mentioned in the proposition (Estimated Time of Departure ‘ETD’ and Estimated Time of Arrival ‘ETA’) are estimates given purely for information purposes.
Failure to meet these deadlines is not sufficient cause for termination of the contract of sale, nor for penalty charges and/or compensation of any kind, and in no way affects the Client’s obligation to pay for the Products.
These deadlines will be calculated starting from confirmation of the order, i.e. the date on which the Vendor receives all of the elements required to process/execute the order (e.g. opening of a credit account, advance payment etc.).
If the shipping of the Products by the Vendor is delayed as a result of the Client’s actions or wishes, the Products will be stored and handled at the Client’s expense and risk, with the Vendor declining all liability during this time. The Client thus assumes full liability for all risks relating to the Products’ best-before date, arising from delays caused by the Client’s own actions.
4.3 – Handling materials
With the exception of disposable materials, explicitly identified as such, all handling equipment used by the Vendor to provide the Products must be returned. This equipment must be returned, and may under no circumstances be sold, loaned, sub-let or traded in, free of charge or for profit.
Interchangeable handling materials (EUR type pallets) must be replaced by the Client upon delivery of the Products, providing the Vendor with materials of identical type, number and quantity.
Rented handling equipment remains the property of the rental company, and must be kept clean and in good working order until such time as it is recovered by the transporter commissioned by the Vendor or rental company. The Client shall make a commitment to the Vendor’s rental supplier, abiding by the resulting obligations as the trustee of these materials.
If the Client should fail to return all returnable materials and equipment in the terms set out above, they will be invoiced to the Client at the unitary price in force on that date.
When Products are transported in shipping containers, and the transportation is provided by the Vendor, the Client promises to return the containers used to transport the Products within the specified deadlines. Failure to do so will see the Client held liable for all consequences, particularly payment of associated charges (demurrage etc.) applied by the transporter or their agent.
4.4 – Reception, Inspection of the merchandise upon delivery and Complaints
The Client shall undertake to confirm receipt of the Products as per the conditions agreed upon in the contract of sale.
Clients must inspect the Products as soon as they arrive on their premises or the premises of their representatives. In the event of a missing, damaged or delayed delivery, the Client will be solely responsible for pursuing any complaints and/or procedures against the transporter in application of the relevant regulations for the means of transport concerned (road, sea etc.) and the law which applies to the transportation contract. In cases where transportation has been arranged by the Vendor, the Client will provide the Vendor with a copy of the complaint.
If the Client feels that the Products delivered do not comply with his expectations, he should make these objections known to the Vendor immediately.
In all such cases, the Client must notify the Vendor in writing (recorded post with proof of delivery, fax or email) as soon as possible, providing a precise and detailed account of any abnormalities detected:
- As soon as the issues are detected or as soon as it is possible to detect them, in cases where the Products are found to differ from the specifications given in the contract of sale (quantity, weight, product types etc.), or where there are visible defects (external appearance of the Products, odour etc.) damage and/or Products missing. Problems must be reported within no more than 7 calendar days following delivery of the Products.
- In other cases (defects which are not visible/detected upon delivery), with the exception of problems which only become apparent when the products are used, complaints must be made within 37 calendar days of the products being delivered and 7 calendar days of the defect being discovered.
- With regard to problems which only become apparent with use, all instances of defective goods must be reported before the expiry date of the products in question.
Once these deadlines have passed, complains will be considered invalid. All claims must be backed up with supporting documents allowing us to establish the nature and origin of the problem.
Generally speaking, as soon as an anomaly is detected the Client must inform the Vendor immediately and take all necessary measures to conserve the affected products.
Any non-visible defects found in the materials or fabrication process, and which render the Products unfit for their intended purpose, are guaranteed subject to the conditions set out in this document, as long as the Products have been kept in their original packaging, sealed and unaltered, and stored in a cool, dry place as per the Vendor’s recommendations.
The Vendor will not accept any returns or destruction of Products which he has not authorized in writing in advance, having reached an agreement on the conditions of such actions (allocation of costs and risks). Generally speaking, the Client must undertake to work closely with the Vendor and provide any documentary and/or regulatory materials necessary for the effective completion of the operation in question.
Clients who fail to abide by these conditions, or return Products without prior consent, will forego the right to compensation of any kind, including credit, and will assume sole responsibility for all associated costs.
Returned products will not be refunded by the Vendor in any way whatsoever unless they have been stored, conserved and/or handled according to the Vendor’s recommendations.
ARTICLE 5: PAYMENT
5.1 – Terms of payment
Unless otherwise specified, payment should be made by bank transfer to the Vendor’s bank account, in the currency stated on the invoice. Payment is understood as the definitive receipt of the sale price by the Vendor.
Payment must be made within the deadline stipulated on the sale proposition and indicated on the invoice. Unless otherwise indicated, the payment deadline is set at 30 days starting from the date of the invoice, provided that the Vendor has sufficient guarantees of the Client’s solvency.
There will be no discount for early payment.
As part of the company’s client risk management policy, the Vendor reserves the right to request, even after the contract of sale has been agreed upon, payment in full in advance of delivery and/or any other guarantee which he deems to be necessary.
5.2 – Late or missed payments
5.2.1 – Failure to pay an invoice before the payment deadline will automatically render all other outstanding invoices payable immediately. Furthermore, the Vendor will be entitled to suspend or cancel all outstanding orders and refuse any new orders, without sacrificing the right to take other forms of actions including those described in Article 7 “Transfer of Ownership’.
5.2.2 – All outstanding sums remaining unpaid at the expiry of an invoice’s payment deadline will be subject to late payment interest charges, calculated on the basis of the base interest rate of the European Central Bank as of the payment deadline, plus 10%.
This interest will be applied as of the due date of the invoice, without further warning or reminder. All costs incurred by the Vendor in recovering the sums owed will be borne entirely by the Client.
5.2.3 – If an invoice remains unpaid after the expiry of the stated payment deadline, a standard charge of 40 Euros will be automatically applied to cover the costs of recovering the outstanding sums. The Vendor may request additional compensation if the cost of recovering the debt exceeds this amount (including in particular the reimbursement of any legal fees incurred).
5.2.4 – Payment must be made in full without any reductions, charges and/or commission.
Under no circumstances may the Client suspend payment or apply any deductions, discounts or compensation, even in cases where a dispute is in progress concerning the Products in question.
ARTICLE 6: LIABILITY
6.1 – Force majeure and other events limiting responsibility
The Vendor cannot be held responsible for failure to fulfil contractual obligations – particularly in terms of delays or failure to deliver products – if this failure can be attributed to an instance of force majeure or any other cause which exonerates him of these responsibilities.
The following events shall be considered as sufficient causes: delays or interruptions in transportation for any reason, shortage or lack of raw materials or components, bankruptcy proceedings involving one of the Vendor’s suppliers or sub-contractors, blockage or disruption of production facilities and communications, telecommunications and postal networks, fires, floods, full or partial strikes, technical incidents affecting production capacity, machine breakdowns, epidemics and food crises, new regulatory, public health or customs requirements, embargoes and trade restriction measures.
6.2 – Responsibility
The Vendor guarantees that the delivered Products will be consistent with the product specifications (technical specifications, special requirements etc.) drawn up by the Vendor and provided to the Client, as well as abiding by all applicable legislation and/or regulations in place in France.
Where relevant, the Client should notify the Vendor in advance of any specific compliance requirements applicable in other markets where the Products will be sold. These requirements should be set out clearly, and must be formally accepted by the Vendor, in particular in the technical specifications for the Products. The Client retains sole responsibility for ensuring that these standards are respected.
Clients accept sole responsibility for the manner in which they use these Products. The Vendor accepts no responsibility in such matters.
Generally speaking, the Client will be held liable for the consequences of all mixtures, transformations and/or modifications involving the Products supplied by the Vendor, with the Vendor declining all responsibility for these consequences.
The Vendor’s responsibility can only be invoked in cases where the Products are found to be defective in a manner which is wholly attributable to the Vendor, and which causes genuine damage to the Client. Defects which are visible and/or detectable upon reception, covered by Article 4, are not covered by this guarantee.
In all cases, the Vendor’s liability will be limited to the direct, clearly-proven material damages occasioned by the defect, excluding all other forms of damage, including but not limited to: immaterial damage, indirect damage, operating losses and/or loss of revenue.
Under no circumstances shall the Vendor’s liability exceed the total value of the defective Products plus the cost of destroying them, with an upper limit equivalent to 120% of the original sale price of the Products.
ARTICLE 7: TRANSFER OF OWNERSHIP
7.1 – Ownership of the Products is transferred immediately once the Client has paid the full price and all associated sums (inc. VAT).
In the event that the Client should fail to make a payment in full and within the stated deadline, the Vendor will be fully entitled to demand the return of the products without prior warning.
Products in the Client’s possession which are identical or similar to the Products sold by the Vendor will be deemed to correspond to the unpaid Products.
7.2 – The Client shall take all necessary measures to protect the Vendor’s property rights, including taking out the relevant insurance policies. The Client must also promise to take all necessary actions and/or measures to ensure the efficacy of this clause maintaining the Vendor’s ownership of the Products, in compliance with the legislative and/or regulatory provisions in place in the Client’s home country and/or the country in which the Products are to be sold.
In the event that this ownership clause should be invoked once partial payment has been made, the sums already paid will be retained by the Vendor as compensation for the failure to comply with the contract of sale, without infringing on the Vendor’s right to claim further damages and interest and obtain full compensation for the losses incurred.
7.3 – If the Vendor’s guarantee is rendered invalid as a result of actions taken by the Client, particularly if the products have already been used and/or sold on, the Client must pay the Vendor a fixed penalty charge equivalent to 50% of the value of the unpaid invoice guaranteed by this transfer of ownership clause.
7.4 – Payment of the unpaid invoice, plus the penalty charge specified above, may then be deducted by the Vendor from any sums received from the Client in relation with other contracts, for example reservations for production periods, advances, deposits on other outstanding orders etc.
The Client accepts that the Vendor may reallocate such sums to the payment of the outstanding invoice, and the associated penalty charge.
ARTICLE 8: TERMINATION
Without compromising the Vendor’s right to take back possession of the Products by invoking the transfer of ownership clause, the Vendor shall be fully entitled to cancel or annul the transaction if the Client should fail to pay all or part of the sale price and/or the corresponding VAT before the specified payment deadline.
Furthermore, the Vendor may terminate the contract of sale if the Client should fail to fulfil his obligations or in the event of a takeover, a failure to make payment, liquidation or bankruptcy proceedings, subject to the relevant legal provisions.
This termination will be considered legally binding when the Client has been informed by recorded post with proof of delivery, and the Vendor will be fully entitled to take back the Products in question, without foregoing the right to claim damages and interest.
In the event that this contract should be terminated, by either party and for whatever reason, the Vendor will automatically have the Client’s permission to issue an invoice for any advance stocks ordered in to fulfil the Client’s original order.
ARTICLE 9: INTELLECTUAL / INDUSTRIAL PROPERTY RIGHTS
The term “intellectual and industrial property rights” (“IP rights”) includes but is not limited to: brands, trademarks, sketches and models, logos, publishing rights, recipes, formulae and other forms of know-how.
The Client does not acquire any IP rights in the transaction governed by this contract, these rights remaining the exclusive property of the Vendor.
The Client promises to ensure that the Vendor’s IP rights are respected, and undertakes in particular:
- to make no modifications to the Products and their accompanying documentation, brands or any other distinguishing sign belonging to the Vendor;
- to refrain from using and/or registering any trademark or distinguishing sign which is similar or identical to those already held by the Vendor, even after the termination of the commercial relationship between the Vendor and the Client;
- to avoid tarnishing the reputation and brand image of the Vendor, and the Vendor’s brands and Products.
In cases where the distribution of the Products is entrusted to the Client’s responsibility, the Client will ensure that all promotion and publicity of these Products respects the Vendor’s IP rights, and abides by the Vendor’s instructions regarding such matters, particularly with regard to the brand’s visual identity.
The Client promises to inform the Vendor immediately should he become aware of any infringement of the Vendor’s IP rights or damage to the reputation and/or the image of the Vendor’s brands and Products.
If these rights should be violated, the Vendor shall retain sole control over all communication regarding the infringement, and sole authority to decide what further action, if any, is to be taken.
In cases where the recipe and/or formulation of the Products have been developed by the Client and/or on the basis of specifications devised by the Client, the Client shall guarantee the Vendor against all consequences of any actions whatsoever taken by third parties claiming to possess IP rights over these creations, particularly accusations of copyright infringement or counterfeiting.
ARTICLE 10: AUDITS – INSPECTIONS
The Vendor has put in place specific procedures and policies at its production facilities (preventive safety plan, security protocols etc.) which ensure that all regulatory and standard requirements are met in terms of health and safety, asset security and environmental protection.
All visits to the Vendor’s facilities, for whatever purpose, require advance planning in keeping with the internal regulations, and the general rules and procedures in place within the Vendor’s organisation, particularly in terms of health and safety.
For this reason, Clients may only perform or commission audits and inspections of the Vendor’s facilities and procedures with the Vendor’s prior, written permission, and on the condition that these inspections do not interfere with the activity of the facility in question.
The Vendor retains sole discretion to authorize or decline inspections requested by the Client, as well as full control over the terms under which such inspections are conducted. In all circumstances the Client must scrupulously adhere to the regulations in place in the facilities in question, as well as the Vendor’s instructions.
The cost of audits and inspections performed at the Client’s request will be borne exclusively by the Client.
ARTICLE 11: CONFIDENTIALITY
All information and documents provided by the Vendor during and in relation to the commercial relationship with the Client, whatever nature and format they may take, shall remain strictly confidential.
Materials considered as confidential include, but are not limited to: information regarding the volume of business conducted with the Vendor, the Vendor’s price propositions, processes, methods, recipes, formulae and other forms of know-how, technical specifications of Products and/or other technical information regarding to Products (whether or not they are patent-protected), specific marketing materials and details of products still in development.
The Client must refrain from divulging any such materials to third parties, using them only within the direct context of the contract of sale at hand. The Client must return these materials to the Vendor when requested, and destroy information held in any format which cannot be physically returned. This includes cases where the Client has contributed financially to the creation of this content.
This duty of confidentiality shall apply throughout the duration of the contract of sale and after its conclusion, regardless of the circumstances of this conclusion.
ARTICLE 12: VARIOUS
12.1 Propositions made by the Vendor, and the rights and obligations derived from this contract of sale, cannot be sold or transferred to a third party without the prior, written consent of the Vendor.
12.2 The fact that the Vendor should choose not to invoke one of the clauses of this contract at a specific moment in time should not be interpreted as a renunciation of the right to exercise these rights at a later date.
12.3 Under no circumstances should the Client consider unwritten practices to be contractually-binding.
ARTICLE 13: APPLICABLE LAW – COMPETENT COURTS
The present TCS, and all contracts of sale concluded between the Vendor and the Client, are subject to French law, including the terms of the Vienna Convention on Contracts for the International Sale of Goods of 11th April 1980.
Any dispute relating directly or indirectly to the execution of these terms and conditions and/or the relationship between the Vendor and Client established by the contracts of sale, and which cannot be settled amicably by the parties, will fall under the exclusive jurisdiction of the Courts of Paris, including disputes over the validity of the contract itself, and even in cases where multiple defendants or third party guarantors are invoked.