ACTIMEAT GENERAL CONDITIONS OF SALE
1. ACCEPTANCE – OPPOSABILITY
The present General Conditions of Sale (GCS) apply by right to all sales concluded by
the company ACTIMEAT & CO,
F11 – ZI Saint Maurice
04100 MANOSQUE – FRANCE
Capital of €310,000
RCS MANOSQUE B : 824 265 839
(hereinafter: “ACTIMEAT”) to any buyer (hereinafter: “the Buyer”) who accepts them and acknowledges having full knowledge of them and therefore waives the right to rely on any contradictory document, in particular its own general terms and conditions of purchase.
The Buyer accepts that ACTIMEAT may subsequently and reasonably modify these general conditions and that their relationship will always be governed by the latest conditions in effect on the day of the order.
No document other than these terms and conditions shall create obligations for ACTIMEAT or the Buyer (hereinafter referred to as the “Parties”) or derogate from these terms and conditions unless it is in writing and signed by the Parties or mentioned in the contract formed in accordance with Article 2.
2. QUOTES – ORDERS
2.1 Purchase proposals made by ACTIMEAT to a Buyer shall be valid for 15 days from their issue by ACTIMEAT unless otherwise stipulated and subject to supply in the quantity and quality of the products requested.
2.2. Any order from the Buyer, following a purchase proposal made by ACTIMEAT, must be placed in writing (email, fax, letter) and must mention the delivery and invoicing address, the order number, the order date, the requested delivery date, which may not be less than 10 days after the order date, the references, the quantity and the quality of the products ordered and the price per kilogramme, if applicable, determined by ACTIMEAT. An order containing incomplete or erroneous information may result in errors or delays which cannot be attributed to ACTIMEAT. An order shall only be deemed to have been accepted by ACTIMEAT once the order confirmation has been sent. The contract will be concluded (hereinafter “Contract”) and the parties will be bound when the order confirmation has been returned signed by the Buyer, it being understood that the beginning of the performance of the contract, or the silence kept by the Buyer beyond the 24 working hours following the receipt of the order confirmation, is equivalent to confirmation of the latter by the Buyer. The Buyer may, if necessary, record any differences between its order and the confirmation. Only the confirmation shall be binding, in particular with regard to price and delivery time.
2.3 Any cancellation of a firm sale shall be subject to the prior written agreement of ACTIMEAT. In all cases, the full purchase price is due.
2.4 Any request to modify an order must be accepted by ACTIMEAT and will give rise to additional invoicing and, if necessary, to the reconsideration of delivery times. Given the perishable nature of the products and the uncertainty of their supply, no request for modification may be received by ACTIMEAT 5 days before the delivery deadline mentioned in Article 3 below.
3. DELIVERY – RISKS
3.1 Delivery shall be made to the address and under the conditions specified in the Contract. The delivery times of the products are only given as an indication and the Buyer cannot use them to claim the cancellation of the order, penalties or indemnities, or refuse to pay the price of or the installments envisaged in the order.
3.2 The packaging, pallets or various supports deposited with the products remain the property of ACTIMEAT. They must be kept at ACTIMEAT’s disposal, clean and in good condition. In the event of loss or damage, they will be charged at replacement cost.
3.3 Unless otherwise agreed, the products sold by ACTIMEAT shall be delivered in accordance with the ICC’s DDP Incoterms 2010, at the place defined in the Contract.
3.4 In all cases, without prejudice to the measures to be taken with regard to the carrier, any dispute by the Buyer or its service provider concerning the conformity of the weight and quantity or the apparent defects of the products must be made as soon as the products are received and at the latest within 48 hours of receipt.
In the absence of a complaint notified within this period by registered letter with acknowledgement of receipt, and given the specific nature of the products, no complaint for apparent defects will be accepted by ACTIMEAT.
In the event that the Purchaser notes a non-conformity, and unless it renders the products manifestly unfit for consumption in accordance with health regulations, the products delivered must be made available to ACTIMEAT, at its request, in compliance with the rules of hygiene and conservation, in particular in order to carry out any bacteriological analysis that may prove necessary. Where applicable, and after having obtained the agreement of ACTIMEAT, the Buyer shall be responsible for destroying the products that are unfit for consumption, in accordance with the health and safety conditions set out in the regulations in effect.
4. OBLIGATIONS OF THE BUYER
The Buyer undertakes to comply scrupulously with the regulations applicable to its activity, and in particular those relating to obtaining approval, transport, storage, preservation, packaging, traceability and, in general, to the sale of the goods ordered. The Buyer shall also comply, where applicable, with the guides to good hygiene practice and the application of the HACCP method that may have been drawn up in the context of its activity. ACTIMEAT reserves the right to check that the Buyer complies with these regulations and in particular to visit the place where the goods are stored, on the days and during the hours of its choice. The Buyer undertakes, in this respect, to give free access to ACTIMEAT staff in order to carry out these checks. The Buyer guarantees ACTIMEAT against all the harmful consequences that may arise from failure to comply with these instructions.
Invoicing shall be based on the prices set out in the Contract. In the case of a successive performance contract, the price may vary in the event of a significant increase in the prices charged by ACTIMEAT’s suppliers. Any increase of more than 5% is deemed to be significant. In all cases, ACTIMEAT will notify the Buyer of the new prices as soon as they are available, the prices as increased being applicable to orders placed 8 days after the Buyer has been notified. A variation of more than 10% in the price of the products ordered shall entitle ACTIMEAT to terminate the contract in accordance with Article 10. Unless otherwise agreed, the price is in euros, exclusive of tax and DDP, including postage and packing.
6.1 The products are invoiced on delivery by ACTIMEAT.
6.2 All invoices must be paid to the address of ACTIMEAT’s registered office shown on the invoice within 30 days of the delivery date.
6.3 Advance payment, the amount of which will vary according to the amount of the order, may be claimed by ACTIMEAT in accordance with the provisions set out in the order confirmation. Execution of the order is suspended until the Buyer has paid this advance in full.
6.4 Cash or advance payment of an invoice shall not give rise to a discount.
6.5 The Buyer may not invoke any cause whatsoever to defer or modify the terms of payment, in particular a dispute over the quality or non-conformity of the products or a delay in delivery.
6.6. Any sum not paid on the due date shall automatically incur a penalty equal to five times the legal interest rate in effect.
Failure to pay a single invoice or bill of exchange on the agreed due date shall render all invoices or bills of exchange that have not yet fallen due payable, ipso jure and without prior notice, for all orders delivered or in progress. ACTIMEAT shall also have the right to suspend the fulfilment of its obligations, to suspend or cancel orders in progress, without prejudice to the right to claim damages and/or the termination of the contract.
7. TITLE RETENTION
NOTWITHSTANDING ANY CLAUSE TO THE CONTRARY, THE TRANSFER OF OWNERSHIP OF THE PRODUCTS ORDERED TO THE BUYER WILL ONLY BE MADE AFTER THE LATTER HAS PAID THE PRICE IN FULL. This provision does not prevent the transfer to the Buyer, upon delivery, of the risks of loss or deterioration of the products sold. However, the Buyer may resell or process these products in the normal course of business. The authorisation to resell products sold under a title retention clause is automatically withdrawn in the event of the Buyer’s non-payment. The Buyer shall ensure that identification of the products is always possible after delivery. In the event that identification is impossible, the Buyer accepts that ACTIMEAT can claim the same quantity of products of the same nature.
8. WARRANTY – LIABILITY
8.1. It is the Buyer’s responsibility to send ACTIMEAT the characteristics of the products corresponding to its needs, in particular the qualitative and quantitative information necessary in order to perfectly assess the products required and to ensure that the characteristics agreed correspond in every respect to its expectations. The Buyer is thus deemed to have full knowledge of the products it is purchasing and acknowledges that it has been able to obtain the information relating to those ordered. In particular, the customer is solely responsible for the choice of storage location for the products after delivery.
8.2. ACTIMEAT can only be held liable to the Buyer when the products delivered do not conform to those ordered. Compliance with the order shall be assessed by reference to the Contract. Where there are minor differences in the quantities of the products ordered and the products delivered, delivery shall be deemed to be in accordance with the Contract. Thus, a quantity deviation of less than 5% will be considered minor and the delivery will be deemed compliant. No goods delivered under the regular conditions with regard to these general conditions may be returned without the express agreement of ACTIMEAT. In the event of non-conformity of the goods delivered, ACTIMEAT will replace the products recognised as non-conforming.
8.3. In the event of doubt as to the interpretation of a clause or in the absence of any mention enabling the precise extent of ACTIMEAT’s obligations to be determined, the Buyer acknowledges that ACTIMEAT’s obligations shall be understood as obligations of means.In any case, ACTIMEAT cannot be held responsible in the following cases:
– Stock shortages, in particular when ACTIMEAT encounters serious supply difficulties or non-compliance of any kind by the Buyer with the regulations applicable to the products delivered and/or the good practice guides drawn up.
– Negligence on the part of the Buyer, particularly in the unpacking, storage, packaging or conservation of products (cold chain integrity, hygiene, protection of products against any contamination, maintenance of equipment, traceability of products, etc.).
– Use and/or processing by the Buyer of the delivered products that do not comply with the rules applicable to the food trade in general and to meat in particular.
In particular, ACTIMEAT shall not be held liable for the distribution by the Buyer of out-of-date or damaged goods. IN ALL CASES, EXCEPT IN THE CASE OF FRAUDULENT MISCONDUCT, ACTIMEAT’S LIABILITY SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY THE BUYER FOR THE DAMAGED PRODUCT(S). ACTIMEAT shall in no case be held liable either to the Buyer or to a third party for any indirect damage, in particular operating loss, loss of clientele, commercial loss, damage to brand image, resulting from the possession or use of the products. ACTIMEAT will always be able to prevent a liability claim by replacing a non-compliant product. Any dispute by the Purchaser as to the proper performance by ACTIMEAT of its contractual obligations must be justified and be the subject of a registered letter with acknowledgement of receipt sent at the latest within one year of the alleged non-performance. Failure to do so shall constitute a waiver on the part of the purchaser to criticise the proper performance by ACTIMEAT of its contractual obligations.
9. FORCE MAJEURE
ACTIMEAT shall not be liable for any breach of contract if such breach is the direct or indirect effect of a case of force majeure such as the occurrence of any natural disaster, war, riot, attack, extreme cold or heat, epidemic, pandemic, epizootic disease, flood, fire, strikes, both at ACTIMEAT and at its service providers, suppliers, public services, postal services, an imperative injunction from the public authorities (ban on imports, exports, etc…), disruption of supplies, a major incident in ACTIMEAT’s infrastructures. The occurrence of a case of force majeure shall result in the immediate suspension of the performance of the contract. If the case of force majeure continues for more than 60 days, the Contract may be terminated by either Party.
10.1. ACTIMEAT has the right to cancel the Contract without notice, by registered letter with acknowledgement of receipt:
in the event of total or partial non-fulfilment of its obligations by the Buyer after formal notice has remained unsuccessful for more than thirty days, in particular its payment obligation;
– in the event of an unfavourable change in the Buyer’s financial or commercial situation, which could lead to a default in payment;
– in the event of the Buyer’s disregard of the regulations applicable to its activity;
– in the event of force majeure, or similar events in accordance with Article 9;
10.2 Furthermore, in the case of a successive performance contract, and in addition to the breach scenarios provided for, ACTIMEAT will be entitled to terminate the contract in the event of a significant modification of the purchase price of the products ordered, with any increase of more than 10% being understood as significant, if the Buyer does not accept the new prices within 8 days of being notified of them.
10.3 In the event of a breach of contract, ACTIMEAT shall be released from its obligation to deliver.
It will refund any sums paid by the Buyer for orders not yet executed, except where the breach is due to the Buyer’s fault. In the event of breach of contract, ACTIMEAT shall be entitled not to accept any further orders and shall not owe any compensation to the Buyer.
11. TOLERANCE AND PARTIAL NULLITY
The fact that ACTIMEAT does not avail itself at a given time of any of the provisions of these general conditions may in no way be interpreted as a waiver on its part to avail itself of them at a later date, in particular the fact that it will not claim late payment. The possible cancellation of a clause shall not affect the validity of the other clauses of this contract.
12. SETTLEMENT OF DISPUTES
12.1. ANY DISPUTE RELATING TO ALL OPERATIONS COVERED BY THESE GENERAL CONDITIONS SHALL BE SUBMITTED TO THE SOLE JURISDICTION OF THE COMMERCIAL COURT OF MANOSQUE (FRANCE).
12.2. All the clauses contained in these general terms and conditions as well as all the sales transactions referred to in them are subject to French law.
In the event of a dispute, the parties agree to consider the fax and e-mail as an original written document with full proof and waive the right to contest this means of proof, except to discuss its authenticity