Terms and conditions

Article 1: Application and enforceability of these terms and conditions of sale :

1. These general sales conditions (GSC) apply to products sold by LACTAVIT to its customers.
2. Consequently, the placing of an order implies the customer’s full and unreserved acceptance of these terms and conditions, to the exclusion of any other document contradicting these terms and conditions.
3. No special condition may, without the formal written acceptance of LACTAVIT, prevail over the present conditions. In the absence of the seller’s express written acceptance, any condition to the contrary on the part of the customer will be unenforceable against LACTAVIT, regardless of when it may have been brought to the seller’s attention.
4. The fact that LACTAVIT does not take advantage, at a given moment, of any of the present general conditions, cannot be interpreted as a renunciation to take advantage of one of the said conditions at a later date.

Article 2: Offer:

2-1-LACTAVIT sends customers offers corresponding to the request they have made to LACTAVIT.

2-2-Customer requests may be addressed to LACTAVIT by e-mail or telephone.

2-3-Customers may attach to their requests a specification describing their needs and the expected characteristics of the products.

The seller’s offers remain valid only within the option/acceptance period indicated on each offer. The seller reserves the right to withdraw or modify an offer until it has been accepted by the customer.

Article 3: Ordering process :

3-1-A commercial offer is drawn up in the form of a sales contract specifying the type of product the customer wishes to order, the quantity, the price, the time and method of payment, the place of delivery, the incoterm and the indicative lead time.

3-2-The order will be considered definitive as soon as the first of these elements occurs:

• • Sales contract signed by customer

or

• Customer agreement by e-mail with express reference to the sales contract concerned.
• The mere fact that the customer places an order with reference to an offer from the seller implies full acceptance of this offer by the customer.
• The customer’s order must expressly refer to the offer in question and comply with its terms and conditions (price, currency, quantities, incoterm and deadlines, product characteristics and references, means and deadline of payment). Failing this, the seller is entitled not to accept the order or to modify it.
• Products are supplied by the seller within the limits of available quantities. The seller may not be held liable in the event of total or partial unavailability of the quantities of products ordered.
• In any event, including in the event of cancellation or modification accepted by the seller, the customer alone shall bear all consequences arising therefrom, and in particular shall bear all related costs. In the event of delay of more than 2 months, the seller reserves the right to cancel the contract.
• As a minimum, in the event of delay in relation to the delivery period defined in the commercial offer, the seller reserves the right to apply penalties of 1% of the value of the products concerned for every 10 days of delay, up to a maximum of 5% of the value of the products concerned.

Article 4: Commitment resulting from the order – Invoicing :

4-1-Once the order has become final, the customer is obliged to take possession of the products and, in any event, to pay for the order in full.

4-2-In the event of a variation in the price of agricultural raw materials significantly affecting the prices of certain products covered by contracts concluded for a period of more than 3 months, the parties to this contract will meet to renegotiate the prices of the products concerned.

The products offered by LACTAVIT concerned by the applicable regulations include 82% butter, powdered milk, sweetened or unsweetened condensed liquid milk, creams, yoghurts, cheeses, additives, etc. (non-exhaustive list).

The reference index for French milk will be the milk price index published by France Agrimer, and for other EU countries the index published by Eurostat. Contracts concluded for a period of more than 3 months will show the level of the index concerned on the day of signature.

Following this observation, the more diligent party will inform the other party by registered letter of its wish to enter into price renegotiation.

The parties will meet within a maximum of 2 months of receipt of this letter by the other party in order to renegotiate the price of the products concerned.

This renegotiation will be carried out in good faith and will be the subject of a written report containing, in particular, a first part dealing with the implementation of the clause and the calculation of the resulting price variation, a second part dealing with the response to this request and a third part dealing with the terms and results of this renegotiation.

The seller issues its invoices in accordance with the legal and/or regulatory provisions in force in France. The customer undertakes to inform the seller in good time of any mandatory invoicing rules applicable in the territory where the products are marketed.

Invoices may only be drawn up on a VAT-exempt basis if the customer provides the seller in advance with any document justifying this exemption that the seller deems sufficient.

Any dispute relating to invoicing (price, quantity, etc.) will only be taken into account if it is sent to the seller by post or e-mail within 15 days of the date of issue of the disputed invoice. The admissibility of a dispute relating to invoicing does not in any way prejudge its merits, which will be the subject of a reasoned decision by the seller.

Any dispute relating to invoicing shall not justify any suspension, delay or total or partial non-payment by the customer of the invoice concerned and/or any other invoice issued by the seller.

Article 5: Loading and/or delivery times :

5-1-Loading times are those indicated on the sales contract.

5-2-LACTAVIT will endeavor to notify the customer of any loading or delivery delay exceeding 2 weeks.

In any case, loading or delivery times are always given as an indication. Exceeding them shall not entail cancellation of the sales contract, nor any indemnity and/or penalty of any kind whatsoever, and shall in no way modify payment obligations for products.

These deadlines apply from the date of acknowledgement of receipt of the order, which will only take place once the seller has received all the elements required to process/execute the order (e.g. opening of letter of credit, advance payment, deposit, ….).

If the customer causes the seller to delay shipment of the products, the products will be stored and handled at the customer’s expense and risk, without liability for the seller. The customer thus exclusively assumes the risk attached to the products’ DLUO and to any possible exceeding of the latter due to its delay.

Article 6: Delivery and acceptance :

6-1- Unless otherwise stipulated in the commercial offer, LACTAVIT or one of its partners is responsible for the transport of the products, and the transfer of risks on the products takes place according to the sales incoterm indicated on the sales contract, with reference to the Incoterms® of the International Chamber of Commerce – version in force on the date of the sales contract. The incoterm chosen will define the distribution of services (packaging, handling, transport, customs formalities, insurance), risks and costs. In all cases, products are unloaded at the customer’s risk.

Products are unloaded at the customer’s risk.

6-2-The customer undertakes to open and unpack the packages containing the product as soon as they are delivered and, in the event of damage or shortage, to make any necessary observations and confirm his reservations by mail or e-mail (enclosing photos: before unloading the goods).

Without prejudice to the measures to be taken with regard to the carrier mentioned above, any dispute or complaint concerning receipt of the products must be noted on the carrier’s delivery note and sent to LACTAVIT by post or e-mail within twenty-four hours of delivery.

In the absence of this double formality, no claim will be accepted.

6-3-Any dispute concerning a defect in the quality and/or conformity of the products delivered must be sent to us by post or e-mail within :

– Forty-eight hours from the date of receipt, accompanied by the corresponding supporting documents.

Within 3 days of receipt of the products in the event of non-conformity of the products with the sales contract specifications (quantities, weight, product references, etc.), apparent defects (external appearance of the products, odor, etc.), damage and/or shortages.

In all other cases (non-apparent defects/non-detectable upon receipt) except those detectable only upon use, within a combined period of 35 days from receipt of the products and 5 days from discovery of the defect.

In the case of defects detectable only upon use, within a period which may not in any case exceed the DLUO of the products concerned.

As a general rule, as soon as an anomaly occurs, the customer is obliged to inform the seller without delay and to take all necessary precautionary measures.

After this time, no claim will be accepted.

Any non-apparent material and manufacturing defects affecting the normal use of the products are guaranteed under the conditions set out herein, provided that the products have been kept in their original unopened/unaltered packaging, in a cool, dry place in accordance with the seller’s recommendations.

6-4 LACTAVIT will process the complaint within 10 working days of receipt. The supplier will be informed and an investigation will be set up. In the absence of a response within this period, the complaint will be deemed to have been rejected.

6-5-In the event that LACTAVIT confirms a defect in quality and/or conformity, a solution will be found in agreement with the customer and/or the supplier (credit note, discount on the next order, etc.).

Returns:

The seller will not accept any return or destruction of a product without prior written authorization, both in principle and with regard to the terms and conditions (charges and risks). In general, the customer undertakes to cooperate closely with the seller and to provide all documentary and/or regulatory information necessary for the proper completion of the agreed operation. Any failure to comply with these principles, or any product returned without this agreement, will not give rise to any compensation whatsoever, nor to the issue of a credit note, and the customer will bear all related costs.

Any returned product may only give rise to compensation from the seller, in any way whatsoever, if it has been kept, stored and/or handled in compliance with the seller’s recommendations.

Article 7: Price, payment and payment terms.

7-1-The applicable price is the price indicated on the sales contract.

7-2-The date of payment is calculated according to the method of payment indicated on the sales contract.

7-3-No discount is granted for cash payment.

7-4-Any invoice not paid by its due date will bear interest at the rate of three times the legal interest rate in force on the date of the invoice, in addition to the payment of a fixed indemnity of €40 for collection costs and any sum corresponding to the loss actually suffered by LACTAVIT as a result of this non-payment.

7-5- In the event of non-payment, 48 hours after formal notice has been served without result, the sale will be terminated by operation of law at LACTAVIT’s discretion, and LACTAVIT may request, in summary proceedings, the return of the products, without prejudice to any other damages.

7-6-Lump-sum compensation for collection costs, in addition to late payment penalties is set at €40 (Decree n°2012-115 of October 2, 2012). If this fixed amount is exceeded, the customer must reimburse all costs incurred by the contentious recovery of sums due, including lawyers’ and legal officers’ fees.

7-7-In the event of a first order or risk of insolvency on the part of the customer, LACTAVIT reserves the right to request advance payment of all or part of the order price in the form of a deposit.

LACTAVIT may also ask the customer to provide any other guarantee it deems useful, such as credit insurance.

Non-payment of an invoice on its due date shall render all other invoices not yet due immediately payable. In addition, the seller shall be entitled to suspend or cancel all current orders and to refuse all new orders, without prejudice to any other course of action, in particular those provided for in article 9 “Reservation of title”.

Any sum not paid by the due date of the invoice will automatically give rise to the payment of late payment interest at a rate equal to the refinancing interest rate of the European Central Bank in force on the day payment is due, plus 10%. This interest is payable from the date on which the invoice is due, without any reminder or formality being required. All costs incurred by the seller in the recovery of its debt shall be definitively borne by the customer.

Article 8: Conditions of use of products and warranty:

The seller guarantees that the products delivered comply with the product specifications established by the seller and communicated to the customer, as well as with the legislative and/or regulatory provisions in force.

Specific conformity requirements relating to the standards of the destination and/or marketing territories, where applicable, must be communicated in advance by the customer to the seller in a precise manner and formally accepted by the latter, notably via the product specifications. The customer remains solely responsible for compliance with these standards.

8-1-The customer undertakes to comply with the technical and safety standards applicable to the activity for which he wishes to use the products.

The customer also undertakes to use the products in accordance with their intended use, and to respect the FEFO (First Expired First Out) principle when managing its stocks. Should the customer fail to do so, he alone will bear the consequences.

In any case, the customer is solely responsible for :

• any damage resulting from the use of the products
• compliance with product storage and preservation conditions
• The suitability of the products for their intended use.

8-2-The customer undertakes to take out insurance covering his liability for any other use he may make of the products after the transfer of risk has taken place.

8-3- LACTAVIT undertakes to supply products which comply with the sales contract and current regulations.

The seller’s liability, for any reason whatsoever, may not exceed the sum of payments received for the products in question, as well as the related destruction costs, up to a limit of 120% of the price of the products.

Article 9: Retention of title :

9-1 THE PRODUCTS WE DELIVER ARE SOLD WITH A CLAUSE EXPRESSLY SUBORDINATING THE TRANSFER OF THEIR OWNERSHIP TO FULL PAYMENT OF THE PRICE IN PRINCIPAL AND ACCESSORIES.

It is understood that the mere delivery of a document creating an obligation to pay, draft or other, does not constitute payment. Only the collection of the price of the products by LACTAVIT constitutes payment.

9-2-The above provisions do not preclude the transfer to the customer of the risks of loss or deterioration of the goods subject to retention of title, as well as responsibility for any damage they may cause, upon delivery of the products.

9-3-As long as the price has not been paid in full, the customer must individualize the products delivered and not mix them with other products of the same nature from other suppliers. Nor may the customer resell the products acquired hereunder to a third party until the price has been paid in full.

In the event of non-payment of an instalment in full and on the agreed due date, the return of the products may be demanded ipso jure and without prior formality. Products in the customer’s possession that are identical or similar to the products sold by the seller shall be deemed to correspond to the unpaid products.

If the seller’s guarantee cannot be exercised due to the customer’s fault, in particular in the event of use and/or resale of the products, the customer will owe the seller a flat-rate penalty equal to 50% of the amount of the unpaid invoice and guaranteed by the reservation of title clause.

9-4-The customer hereby assigns to us his claims arising from the resale of his products, in which our products would have been incorporated, corresponding to the amount of the value of our goods, the ownership of which is reserved to us until their complete payment.

9-5-The purchaser is obliged to provide us, at our request, with all useful information concerning the status of the products whose ownership we reserve and the status of the claims he has assigned to us in accordance with the preceding paragraph; he must also inform his own purchasers of the assignment thus made.

The customer undertakes to take all measures to preserve the seller’s right of ownership, and in particular to take out all necessary insurance policies.

RESOLUTION

Without prejudice to the seller’s right to repossess the products in application of the retention of title clause, the sale may be cancelled or terminated by operation of law, at the seller’s sole option, in the event of non-payment by the customer on the due date of all or part of the invoiced price and/or the related VAT.

In addition, the seller may cancel the sales contract in the event of non-performance by the customer of its obligations, or in the event of cessation of business, suspension of payments, receivership or liquidation of the other party, and subject to the legal provisions of public order.

Termination shall be effective immediately upon dispatch of a registered letter with acknowledgement of receipt, and the seller shall be entitled to repossess the products, without prejudice to any damages.

In the event of termination of the contract for any reason whatsoever, and at the initiative of either party, the seller is hereby authorized by the customer, who accepts it, to proceed with the invoicing of any anticipation stock he may have built up on behalf of the customer.

Article 10: Force majeure and circumstances likely to interrupt our deliveries :

In the event of a transport strike, as well as in the event of a strike within our establishments or at our suppliers, as well as in the event of riots, war, attack, pandemic, lack of raw materials or energy, or for any other case of force majeure, LACTAVIT may suspend its deliveries and terminate all or part of the current contract(s), without the customer being able to claim any compensation.

Force majeure is defined as any external, unforeseeable and irresistible event, as specified in article 1148 of the French Civil Code.

Article 11: Applicable law – jurisdiction:

IN THE EVENT OF ANY DISPUTE OF ANY NATURE WHATSOEVER RELATING TO THE FORMATION, EXECUTION OR TERMINATION OF ORDERS PLACED WITH LACTAVIT. THE COMMERCIAL COURT OF RENNES.

These General Terms and Conditions of Sale, and any sales contract concluded between the seller and the customer, are subject to the application of French law, including the Vienna Convention on the International Sale of Goods of April 11, 1980 for international sales.

This clause applies even in the event of summary proceedings, incidental claims, multiple defendants or warranty claims, and regardless of the method or terms of payment.

INTELLECTUAL/INDUSTRIAL PROPERTY RIGHTS

Intellectual and industrial property rights (“IP” rights) include, but are not limited to, trademarks, patents, designs, logos, copyrights, recipes, formulations and know-how.

The customer does not acquire any IP rights by virtue of the present contract; these Rights remain the exclusive property of the seller.

The customer undertakes in good faith to respect the seller’s IP rights and in particular :

• Not to make any modifications to the products, related documentation, trademarks or any other distinctive sign belonging to the seller.
• Not to use and/or register any trademarks or other distinctive signs identical or similar to those of the seller, even after the commercial relationship between the seller and the customer has expired.
• Not to damage the reputation and brand image of the seller, its brands and its products.

In the event that distribution of the products is entrusted to the customer, the latter undertakes to promote and advertise the products under conditions that respect the seller’s IP rights and in accordance with the instructions previously obtained from the seller, particularly with regard to compliance with the graphic charter.

The customer undertakes to inform the seller without delay of any infringement of the seller’s IP rights, reputation and/or brand image, or of the brands and products of which the customer is aware.

In the event of infringement of its rights, the seller alone retains control of any communication in this respect, and remains the sole judge of whether or not to take any action it deems appropriate.

In the event that the recipe and/or formulation of the products has been developed by the customer and/or on the basis of the customer’s specifications or terms of reference, the customer guarantees the seller against the consequences of any action of any nature whatsoever by a third party who is or claims to be the owner of any right whatsoever over these IP rights, which may be brought against the seller, and in particular in respect of an infringement action.

CONFIDENTIALITY

All information and documents, regardless of their nature and/or medium, transmitted by the seller, on the occasion and/or in the context of commercial relations with the customer, are strictly confidential.

The following will be considered confidential, but not limited to: information relating to the volume of business achieved with the seller, the seller’s price offers, processes, methods, recipes, formulations and know-how, product specifications and/or other technical elements related to the products, whether or not they are covered by a patent, specific marketing elements, or product development projects.

The customer shall refrain from any disclosure of these elements to third parties, as well as any use for purposes other than the execution of the sales contract in question.

MISCELLANEOUS

Any offer from the seller as well as the rights and obligations resulting from the sales contract may not be assigned or transferred to a third party by the customer without the prior written consent of the seller.

The fact that the seller does not assert, at a given time, any of these clauses may not be interpreted as a waiver of the right to assert any of the said conditions at a later date.

The customer may not under any circumstances consider simple usages as contractual.