General terms and conditions of sale

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GENERAL TERMS AND CONDITIONS OF SALE – EPI INGREDIENTS

Effective as from 09/06/2017

The Terms and Conditions of Sale herein shall apply to the sale of all products marketed by EPI INGREDIENTS (hereinafter “Product(s)”) to any country whatsoever. The Terms and Conditions of Sale of EPI INGREDIENTS constitute a contractual document which shall rule the commercial relationship between EPI INGREDIENTS and the Client. Whether necessary, EPI INGREDIENTS accepts to amend this contractual document by way of a supplementary agreement at the request of the Client. This request for amendment shall reflect a balance between the parties. By placing an order, the Client accepts the Terms and Conditions of Sale herein, together with its amendments if any.

1 – PERFORMANCE OF CONTRACTS

EPI INGREDIENTS reserves the right, even during the performance of a contract, to request a guarantee of the proper fulfilment of commitments, a refusal from the Client would authorise EPI INGREDIENTS  to cancel the contract, in whole or in part.

In particular, EPI INGREDIENTS may request guarantees in the event that the credit insurance chosen by EPI INGREDIENTS,  is not, or  is no longer, guaranteeing the Client’s or prospective client’s outstanding amounts or, is reduced to an amount which is lower than the outstanding amount currently shown in EPI INGREDIENTS’s books or lower than the amount created following orders issued by the Client. EPI INGREDIENTS may, if requested guarantees are not obtained, cancel the order(s) placed by the client.

2 – INVOICING AGREEMENT

EPI INGREDIENTS invoices the Client on behalf of its principal, in compliance with Articles 1984 et seq. of the Civil Code and L. 132-1 (et seq.) of the French Commercial Code.

3 – DEBT COLLECTION ORDER; RETENTION OF TITLE CLAUSE (RTC) AND RISK TRANSFER CLAUSE

EPI INGREDIENTS, acting on behalf of its principal, has the authority to collect any amount receivable from clients. It is expressly specified that EPI INGREDIENTS may, for this purpose, call on any guarantee and in particular notify the defaulting Client of the RTC. The RTC shall apply to this transaction under the following terms: EPI INGREDIENTS shall retain ownership of the goods until full payment of its price. The part payment of an invoice shall not imply transfer of ownership of the goods delivered and pertaining to the invoice. However, upon delivery of the Products or upon their removal in the case of ex-factory sales (or export equivalent), the Client shall become liable for the said Products and shall automatically bear all the risks that may affect the goods.

4 – ORDERS

EPI INGREDIENTS shall be bound by the orders that it has confirmed within five (5) working days from their date of receipt. EPI INGREDIENTS reserves the right to refuse or change the order within the above-mentioned period of five days. In the absence of confirmation of the order within the above-mentioned period of five days, the order shall be deemed rejected.

5 – DELIVERY AND DELIVERY TIMES

In the event of carriage paid sale, it is up to the recipient to express reservations to the carrier, as soon as the Products are taken over, such as delays, shortfalls or visible damages to the Products (such as: claims relating to the types or number of bags or parcels delivered, the weight of Products delivered, or the appearance of the Products delivered). These reservations must be confirmed to the carrier and to EPI INGREDIENTS, by registered letter with acknowledgement of receipt, within 48 hours following the take over of the Products. In the event of ex works sale, these reservations shall be made in writing as soon as the Products are picked up. The Client shall not cancel the order or refuse delivery on account of delays and/or shortfalls.

Where the parties choose an Incoterm (2010) the latter shall govern the liability of the parties in respect of the delivery process.

Any other claim with regards to the quality of the Products (i.e non-visible damages upon take over) shall be submitted within a maximum period of 2 months after the Products have been taken over.

Claims shall only be taken into consideration if the storage conditions comply with the recommendations set out in EPI INGREDIENTS’s technical specifications sheets. EPI INGREDIENTS reserves the right to call upon any expert of its choice.

The Client shall receive an indemnification,  if any, by EPI INGREDIENTS in respect of the above (delay, shortfall or damage) in accordance with the conditions of Article 7 INDEMNIFICATION of the General Terms and Conditions of Sale herein.

Delivery times are provided on an indicative basis only and do not constitute a firm commitment  from EPI INGREDIENTS. If the Products ordered by the Client remain in EPI INGREDIENTS’s possession for more than 15 days after the stated date of availability, and because of the Client, the latter shall be charged for storage services €25 per ton and per month, pro rata temporis.

6- FORCE MAJEURE

Without prejudice to last paragraph of present article 6, EPI INGREDIENTS reserves the right to suspend, delay or change the performance of orders in cases of force majeure and of events characterised as leading to a performance difficulty such as shortage of raw materials, any type of strike, disturbance of transportation routes, “vehicle breakdown”, machinery breakdown, fire, water damage, meteorological conditions impacting in particular transportations, withdrawal or amendment of an approval and/or a national accreditation etc. or in the event of a late order and (or) an unusually large order compared to the volumes usually ordered by the Client.

Force majeure means: any event beyond the control of EPI INGREDIENTS which could not have been reasonably foreseen when the contract was entered into force and which impacts cannot be avoided by appropriate measures, in accordance with Article 1218 of the new French Civil Code. If the event of force majeure established by the parties lasts more than 60 consecutive working days, orders and contracts binding the parties may be terminated.

It is understood that delays, shortfalls and/or damages generated due to a force majeure event as defined above, or to one of the events mentioned above, shall not give rise to any indemnification.

 

 

7 – INDEMNIFICATION

 Without prejudice of the provisions set forth at article 6 FORCE MAJEURE, the Client’s indemnification, if any, for the loss it has suffered (delay, shortfall and/or damage),  and exclusively caused by  EPI INGREDIENTS, shall be calculated on the basis of the actual and objective loss suffered by the Client and quantified on the basis of indisputable documents submitted to EPI INGREDIENTS for prior approval. Hence, and even if an amount of indemnification may be pre-estimated , it will eventually be calculated solely on the basis of the direct, material, actual, quantified and proven loss suffered by the Client. EPI INGREDIENTS, by way of preference over Articles 1231-2, 1231-3 and 1231-4 of the new French Civil Code, excludes indemnification for the Client’s  immaterial and/or indirect losses, in particular:

– loss of contract, loss of revenue, and/or loss of profit margin;

– harm to the company’s reputation, harm to the company’s image, and/or harm to the value of the company’s intangible assets such as brands, goodwill, including customers;

– lawyer’s fees, consultants’ fees and/or costs of proceedings borne by one of the parties in any dispute.

– costs of customs clearance, demurrage and storage mentioned by the Client.

In any event, indemnification of the Client under the above-mentioned conditions shall not exceed the total value of the order affected by the non-conformity, and, following EPI’s choice, may take the form of either a monetary indemnification or replacement of the goods.

8 – CONFORMITY

EPI INGREDIENTS shall check the composition of the Product and its labelling for compliance with the laws and regulations applicable in the European Union. Hence, EPI INGREDIENTS shall in no way be liable if the Product is sold outside the European Union and the said Product does not comply, in terms of composition and/or labelling, with the laws, standards or case law of the country where it is sold and which is located outside the European Union. Likewise, if the Client decides to sell the Products in a country where the European Union’s regulations do not apply or in a country in which, in addition to the European Union, a specific national regulation is applicable, the Client shall be responsible for providing EPI INGREDIENTS with the regulations to comply with in that country. EPI INGREDIENTS will make its best efforts to manufacture the Products in line with the information provided by the Client.

9 – INTELLECTUAL PROPERTY

EPI INGREDIENTS holds all the intellectual property rights and the know-how pertaining to the Products. Moreover, the know-how developed or enhanced by EPI INGREDIENTS after any agreement with the Client shall also remain the property of EPI INGREDIENTS. In no way shall the Client play the role of instructor in the development of recipes, manufacturing processes and industrialisation for the creation of the Products. No intellectual property right and/or know-how shall be transferred to the Client without the express and prior agreement of EPI INGREDIENTS. The Products delivered by EPI INGREDIENTS under its trademark shall only be sold in accordance with conditions consistent with their brand image and their technical specifications. Unless otherwise expressly agreed by the Parties, the Client is not authorised to use EPI INGREDIENTS’s trademarks or any other proprietary rights of EPI INGREDIENTS.

10 – PRICES

Prices are invoiced in accordance with the parties’ agreement to the price offer issued by EPI INGREDIENTS. The validity of the price offer issued by EPI INGREDIENTS shall be as set out in the said offer, or failing this, the price offer shall be valid for a maximum of (5) working days as from its date of issue.

11 – PAYMENT

Unless otherwise and specifically agreed between the parties, the sale of Products shall be payable within thirty (30) days at the end of the ten days following delivery. EPI INGREDIENTS reserves the right to request an early payment where the Client does not have sufficient credit insurance or letter of credit to cover the value of the order. .

In the event of failure to pay on the due date mentioned in the invoices issued by EPI INGREDIENTS, penalties for late payment shall be applicable at the rate of 12% per year of the amount payable, inclusive of all taxes. The penalties shall be calculated pro rata temporis. Moreover, in respect of the recovery costs that EPI INGREDIENTS has to incur, and in accordance with Article L. 441-6 of the French Commercial Code, a fixed penalty of €40 shall be charged to the Client in the event of late payment.

All costs and incidentals incurred by EPI INGREDIENTS for the contentious recovery of its claim shall also be borne by the Client, notwithstanding damages that may be awarded by the competent judge.

Furthermore, in the event of non-payment or the opening of collective proceedings, EPI INGREDIENTS may make the conclusion of new contracts with the Client conditional upon cash payments.

Unless otherwise and specifically agreed between the parties, no discount shall be given for early payment.

12 – JURISDICTION

All disputes relating to the General Terms and Conditions herein shall be subject to the laws of France and shall fall under the exclusive jurisdiction of the courts of Nantes (France), even in the event of third party proceedings or multiple  defendants.