DOLIAA S.A.S. hereafter the “Seller”
Edition – November 2016
Article 1 – Definitions
Buyer: shall mean the person, firm or company to whom the Seller makes an offer or to whom the Seller sends an Order Confirmation or with whom he enters into the Contract.
Order: shall mean the Sale Order / Order Confirmation issued by the Seller to the Buyer for the sale of the Goods. The Order Confirmation shall take the form of a pro forma invoice setting out the Specifications of the Goods together with the price to be paid and the applicable Incoterm.
Contract: shall mean the Contract for the Sale of Goods made between the Seller and the Buyer incorporating the Order Confirmation and the present General Terms and Conditions.
Goods: shall mean the cargo which is the subject of the Order Confirmation and/or the Contract.
Seller: shall mean DOLIAA S.A.S. a French company whose registered office is situate at 105, rue Anatole France – 92300 Levallois-Perret, which sends the Order Confirmation to the Buyer.
Specifications: shall mean the quantity, quality, nature/type and temperature of the Goods as mentioned in the Order.
Article 2 – Application and Enforcement
The present General Terms and Conditions govern the Order Confirmation and the Contract and are the only contractual conditions upon which the Seller agrees to deal with the Buyer, to the exclusion of all other terms and/or documents whatsoever such as Buyer’s General Conditions, Seller’s quotations, letters and/or emails whose contents or definitions differ from those provided for in the Order Confirmation and/or the Contract and/or the present General Terms and Conditions.
Any amendments to the present General Terms and Conditions must be made in writing and agreed by both the Buyer and the Seller at the time when the parties enter into the Contract.
No derogation or waiver by the Seller of any provision in the present General Terms and Conditions on one or more occasions shall have the effect of limiting or restricting the future application or enforcement of the present General Terms and Conditions. Each and every article of the present General Terms and Conditions shall accordingly be separately and individually enforceable. The invalidity or unenforceability of any article or provision shall not affect the enforceability and/or validity of the remaining General Terms and Conditions.
Article 3 – Order and formation of the Contract
The Seller offers to sell the Goods mentioned in the Order Confirmation sent to the Buyer. The Order Confirmation shall take the form of a pro forma invoice or an invitation to contract. Each Order Confirmation is issued by the Seller to the Buyer on a case by case basis for each Contract.
The Contract is made when the Buyer agrees to buy the Goods mentioned in the Order Confirmation. Acceptance shall be made in writing by the Buyer confirming that the Buyer accepts the price and the Specifications of the Goods. The Order Confirmation shall be sent by email to the Seller and/or by the Buyer signing and/or stamping the Order Confirmation issued. An Order Confirmation accepted by the Buyer is irrevocable and cannot be amended or cancelled by the Buyer for any reason or cause whatsoever unless expressly agreed in writing by the Seller.
Article 4 – Delivery
- For sales on CIF/CFR terms, delivery takes place when the Goods are loaded on board the nominated vessel at the designated port of shipment on the date or within the agreed period provided for in the Order Confirmation or in any other document. The vessel shall be nominated by the Seller and this nomination shall be sent to the Buyer as soon as practically possible.
- For sales on FOB terms, delivery takes place at the designated place of shipment on board the nominated vessel on the date or within the agreed period indicated in the Order Confirmation or in any other document. The vessel shall be nominated by the Buyer who shall send this information to the Seller at least three (3) working days before the expected date of loading.
- For sales agreed on any other basis, the place and date of delivery shall be determined in accordance with the Incoterm indicated in the Order Confirmation and by the rules laid down in the latest edition of Incoterms®.
In all the above cases (a), (b) or (c), the date or period for delivery and/or loading indicated by the Seller in the Order or in any other document is an estimate only and is given merely on an indicative basis. The Seller shall have no liability whatsoever and the Buyer shall not be entitled to rescind the Contract, or to refuse to take delivery of the Goods, or to claim damages, or to make any deduction from the price of the Goods, or to cancel the ongoing or any future Orders if for whatever reason it is impossible for the Seller to deliver the Goods to the Buyer on the date or within the period indicated.
Notwithstanding the above, if for any reason whatsoever save in the event of force majeure as defined at article 12 hereof, delivery does not take place within two (2) months following the delivery date or period indicated, either the Buyer or the Seller may cancel the Contract in question without incurring any liability.
Article 5 – Compliance with Specifications
5.1 Compliance of the Goods prior to Loading.
The Seller shall provide the Buyer with the documents certifying that the Goods meet the required Specifications and in particular that they comply with the existing French and European legislation regarding the health, safety of food and frozen products. The Buyer shall be bound by all statements, indications or information given in the said documents.
An inspection of the Goods for the purpose of checking compliance at or before delivery as defined at article 4 above may be carried out at the request of either the Seller or the Buyer upon giving notice thereof to the other and inviting the other to attend. The costs of inspection prior to loading shall be paid by the party requesting such inspection except as otherwise agreed.
The Buyer shall ensure that the Goods as described in the Specifications comply with the existing legislation in the countries of destination and that importation into the said countries is permitted. The Seller shall have no responsibility in this regard.
5.2 Compliance of the Goods at Destination
The Contract is deemed to be duly performed and the Goods are deemed to comply with the Specifications upon arrival at destination notwithstanding any shortage or surplus not exceeding 5% of the quantity stated in the Order Confirmation.
Any protest in respect of non-compliance of the Goods must be sent by the Buyer to the Seller within three (3) working days of the Goods becoming available for collection at the port of destination, together with a full set of supporting documents and an invitation for the Seller and all other parties involved in the carriage and/or storage of the Goods to attend a joint survey at the port of destination. All costs of the survey at the port of destination, including the costs of the Seller’s expert, shall be borne by the Buyer.
If protest is not made within three (3) working days, any claim by the Buyer will be inadmissible.
Article 6 – Risks, retention of title and transfer of ownership
The risks and the costs and expenses in respect of the Goods shall pass from the Seller to the Buyer upon delivery as defined at article 4 of the present General Terms and Conditions whereas title to the Goods shall remain vested in the Seller and shall not pass to the Buyer until the purchase price for the Goods has been paid in full and received in full by the Seller. The Seller may demand that the Goods be returned at the Buyer’s expense and shall be entitled to all the rights provided at article 8.2 below if the Buyer has received the Goods but has not paid for them in full.
Article 7 – Price
The price shall be stated in the Order and shall be paid in full by the Buyer without any deduction and/or discount and/or retention and/or set-off.
Article 8 – Payment
8.1 Terms.
In accordance with article L. 443-1 of the French Commercial Code the price is payable upon delivery as defined at article 4 hereof and not later than thirty (30) days after the end of the ten-day period (“décade”) in which delivery is made.
The price shall at the Seller’s option be paid :
- Either by wire transfer to the Seller’s designated bank account net of all bank charges against presentation of documents (which must include a clean bill of lading, certificates of origin, health and safety and/or any other documents required at the port of destination)
- Or by an irrevocable letter of credit to be opened with a first class bank approved by the Seller. The Seller shall provide the Buyer with details of the bank to be notified directly of the letter of credit. If the letter of credit is not to be directly notified and confirmed by the confirming bank indicated by the Seller, all the costs relating to intermediaries / other confirming bank(s) shall be for the Buyer’s account. The letter of credit shall be opened by the issuing bank upon payment against presentation of the following documents basis (which must include the original clean bill of lading, certificates of origin, health and safety and/or any other documents required at the port of destination).
8.2 Late payments & guarantees required.
In the event of late or non-payment of the purchase price and/or any other amounts whatsoever (in particular sums due under articles 8.1, 10 and/or 11 hereof) payable by the Buyer, the Seller may suspend any ongoing and/or future Contract and/or forthcoming deliveries of Goods and/or exercise the right to retain such Goods and the possession thereof, without prejudice to any other recourse by the Seller against the Buyer. In particular, the Seller may at its option terminate the Contract and may demand that the Goods be returned at the Buyer’s expense, without prejudice to the Seller’s right to damages of any kind whatsoever such as loss of profit, the cost of recovering the sums due and any legal expenses.
Any sums remaining unpaid after the due date shall give rise to monthly penalties equal to three times the rate of French legal interest. These penalties shall be payable upon a simple demand by the Seller. In addition a fixed sum of EUR 40.00 shall be payable for the costs of recovery the day after any outstanding invoice and/or sum has fallen due.
The Buyer agrees that the Seller may in its absolute discretion apply any payments received from the Buyer against any outstanding sums owed by the Buyer in respect of any other Contract. All part payments shall first be applied towards the oldest outstanding debts.
Any deterioration in the Buyer’s creditworthiness shall justify a requirement by the Seller that the Buyer provide a guarantee for the proper execution of any forthcoming Contract or Order Confirmation. In such case the Seller reserves the right to change without notice the terms and/or period for payment or to suspend any further shipments, without prejudice to any other available legal remedies, until the outstanding debts have been paid and/or the Seller has received acceptable assurance that the Buyer is able to execute its future financial obligations on time.
Article 9 – Collection of the Goods
The Buyer undertakes to make any necessary arrangements to collect and/or store the Goods on the date indicated by the Seller and/or carrier or when the Goods are available for collection at the port or place of destination, and shall arrange for the Goods to be transported at its own risk and expense and shall insure the Goods in accordance with the laws and regulations applicable at the port of destination (such as the CIMA Code). At the port or place of destination the Buyer undertakes to store the Goods in a manner which complies with the Specifications and to conduct an adequate inspection thereof no later than three (3) working days after the Goods become available or are due for collection at the port or place of destination.
The time or period indicated by the Seller for collection of the Goods is approximate and is indicative only.
Article 10 – Failure to take collection of the Goods
If the Buyer refuses or fails to collect the Goods at the port or place of destination or if any third party (including but not limited to the carrier, customs authorities, health and safety authorities and/or Government or State authorities) fails or refuses to make the Goods available to the Buyer as a result any default by the Buyer, the Seller reserves its right to take any initiative such as arranging storage of the Goods or the return thereof without prejudice to any other rights or recourse which the Seller may have against the Buyer.
The Buyer shall indemnify the Seller for all costs incurred as a result of the Buyer’s failure to comply with its obligation to take delivery of the Goods including, but not limited to, the costs of storage, carriage, freight, customs duties, port dues and/or demurrage for containers.
If the Buyer fails to remedy the situation created its default and does not take over the Goods within eight (8) working days of the Seller giving formal notice by, the Seller reserves the right to retrieve the Goods and to sell them and shall invoice the Buyer for any difference between the original price agreed and the lower price achieved, plus any additional expenses incurred for the resale (including repackaging costs) and/or the Seller shall have the right to terminate the Contract without prior notice. All unpaid sums due from the Buyer to the Seller shall give rise to the Seller’s rights under article 8.2 hereof.
Article 11 – Liability and limitations
Any claim against the Seller must be brought within one (1) year of the date when the Goods were collected or made available for collection or should have been collected at the port or place of destination.
The Seller shall not be liable to the Buyer or to any other party for any loss of profit, loss of goodwill, loss of brand value, loss of reputation or loss of future sales or for any claim of whatsoever nature in respect of any consequential or indirect loss or damage sustained by the Buyer as a result of any failure by the Seller to perform its obligations except in the event of wilful misconduct by the Seller itself.
In all cases where the Seller is liable to pay damages, such damages shall not exceed 80 % of the price of the Goods indicated in the Contract (except in case of wilful misconduct by the Seller itself).
The Buyer is liable to and shall indemnify the Seller in full for all and any claims brought by third parties against the Seller as a result of the Buyer’s negligence or default or of any failure by the Buyer to perform any of its obligations under this Contract or any other obligation it may have outside this Contract to any third party.
Article 12 – Force majeure
Any event, occurrence or circumstance reasonably beyond its control including, but not limited to, any failure or delay caused by the carrier of the Goods and/or the Seller as a result of any strike, ban, lock-out, riot, fire, civil commotion, disputes with or between workers or other industrial action, failure or breakdown of or damage to machinery, infrastructure or equipment, blockage, stoppage, accident or hazard, natural disaster, drought, storm, flood, severe weather, acts of God, embargo, blockade, sanctions, terrorism or terrorism prevention, policies or restrictions of governments including prohibition or restrictions of export or import including allocations, priorities, requisitions, quotas and price controls, action or inaction in connection with any licence, permit or approval, war (whether declared or undeclared), delay of whatsoever nature in the supply of the Goods to the Seller shall be deemed to be an event of force majeure exonerating the Seller from any liability whatsoever for the non-performance of all or any of its obligations under the Contract. The Seller shall inform the Buyer of any such event listed above as soon as practicable.
Article 13 – Embargoes
The Seller’s performance of the Contract is conditional upon there being no national or international law in existence relating to international trade or any embargo and/or sanctions which might prohibit the sale of the Goods described in the Contract thus preventing performance of the Contract.
Article 14 – Applicable law & Jurisdiction
All Contracts made between the Buyer and the Seller are governed by French law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG) and any dispute, controversy or difference arising between the parties under the Contract and/or Order Confirmation and/or the present General Terms and Conditions which the parties hereto are unable to resolve between themselves shall be submitted to the exclusive jurisdiction of the courts for the place where the Seller’s registered office is located.
All other modalities under the Contract shall be resolved as provided by Incoterms® 2010 or the latest edition of the Incoterms edited by the ICC.
