GENERAL CONDITIONS OF SALE
DISTILLERIE DES MOISANS
Article 1 – General principles
1.1. These General Conditions of Sale constitute the regime under which the company DISTILLERIE DES MOISANS (hereinafter referred to as "the seller") subordinates its sales of spirit drinks and Pineau des Charentes (hereinafter referred to collectively as "the products") to business customers (hereinafter referred to as "the buyer").
In accordance with Article L.441-1, III of the Commercial Code, these General Conditions of Sale constitute the sole basis for commercial negotiation.
Unless the seller agrees in writing and in advance, any sale made by the seller shall be governed accordingly by said conditions and by the terms of the order relating to the sale concerned as accepted under the conditions set out below by the seller.
Consequently, the buyer placing an order implies:
the buyer's full and unreserved adherence to these General Conditions of Sale and to the terms of the order relating to the relevant sale as accepted under the conditions set out below by the seller.
the buyer's waiver, under any title, time, or form, to claim:
Any provision contrary to or derogating from these General Conditions of Sale and from the terms of the order relating to the relevant sale as accepted under the conditions set out below by the seller.
Conditions not expressly stated in these General Conditions of Sale and by the terms of the order relating to the relevant sale as accepted under the conditions set out below by the seller.
1.2. The fact that the seller does not at any given time prevail of any of the provisions of these General Conditions of Sale or of the terms of the order as defined below shall not be construed as a waiver by the seller of the subsequent use of one any such provision.
Article 2 – applicable Law - Competent jurisdictions
2.1. These General Conditions of Sale and any business relationship arising therefrom shall be governed by French law.
2.2. In the absence of an amicable solution within thirty (30) days, it is expressly stated that, in the event of a dispute of any kind, an objection concerning the validity, performance or enforceability, or difficulty in interpreting these General Conditions of Sale and more generally concerning the commercial relations between the seller and the buyer, the Commercial Court within which the registered office of the seller is located shall have sole jurisdiction.
This clause applies even in the case of summary proceedings, incident request or plurality of defendants, and regardless of the method and terms of payment as accepted under the conditions set out below by the seller.
Article 3 – Orders
3.1. Any order must be the subject of a written document, entitled order form, duly signed by the buyer. The order placed verbally by the buyer must be confirmed in writing, sent by post, fax or email to the seller and must include the following:
the number of the price offer, if any;
proforma number, if any;
brand of products ordered;
type of products ordered;
quality of products ordered;
prices of products ordered;
desired delivery date;
Intra-Community VAT number in connection with a sale within the European Union.
Any order placed by the buyer or transmitted by a representative of the seller shall only be accepted by the seller after confirmation by the seller, confirmed by sending the buyer a written document entitled order confirmation, indicating the terms of the order as accepted by the seller. However, delivery of the order by the seller will also be confirmed.
3.2. Packaging conditions (number of bottles per case/box, special labelling, capsules and palletising) may only be changed at the latest twenty-one (21) working days and thirty (30) working days for new products before the delivery date, subject to acceptance by the seller who will send the buyer a prior quotation for the modification of the packaging conditions.
Any waiver by the seller shall not constitute fault and shall not generate for the benefit of the buyer the right to compensation.
3.3. The benefit of the order is personal to the buyer and may not be transferred without the prior written consent of the seller.
3.4. Furthermore, except in the case of force majeure, as defined in these General Conditions of Sale, no order accepted by the seller may be cancelled in whole or in part, or more generally modified, by the buyer in the process of said order, unless agreed in writing by the seller to do so.
Article 4 – Delivery
4.1. Sales are sent from the seller’s wineries located in SIREUIL (16440) – France or any other place designated for this purpose by the seller on the order confirmation.
Delivery is considered to be completed:
on the date available to the buyer,
on the date available to the carrier designated by the buyer.
The date of availability shall be confirmed within seventy-two (72) hours or three (3) working days of the date of receipt of the order.
The buyer will inform – if it does not proceed directly with the removal of the order, and for each order – the seller of the name of the carrier to which the products subject to the order are to be entrusted on their availability date.
When the delivery is made by the carrier, the carrier may take the products from Monday to Thursday, excluding public holidays, from eight forty-five (8:45) to noon (12h) and from fourteen hours (14h) to seventeen hours (17h).
The carrier must send an email (to firstname.lastname@example.org) with a removal notice at least two (2) days prior to its passage and from the date of release specified on the order confirmation document.
4.2. Products are generally delivered within twenty-one (21) days of receipt of the order, and within six (6) weeks of delivery for new products.
However, the delivery time is given as an indication and any reasonable exceedance of this period cannot give rise to damages, deductions or cancellation of an order for the buyer. In addition, this time period is subject to the timely receipt of all items to be supplied by the buyer.
The seller reserves the right, if necessary, to carry out the delivery in a comprehensive or split manner – without compensation to the buyer.
4.3. The buyer or the carrier designated for this purpose by the buyer shall take possession of the products ordered at the agreed place, date and time. The buyer is required to remove the products as they are made available after packaging. Any voluntary assistance given by the seller in handling shall in no way engage its responsibility. The buyer shall, prior to any delivery, make all arrangements to allow this operation to be carried out in a safe and more generally to ensure that these operations will be carried out in an optimal manner and in strict compliance with the terms specified to that effect by the seller.
4.4. The seller does not guarantee the transport of the products in any way. The carrier is solely responsible for any damage or missing items that may occur during the journey.
It is further recalled that force majeure releases at the seller's discretion, temporarily or definitively, the seller from any delivery commitment and without compensation to the buyer. This includes, but is not limited to–, the following events:
Destruction affecting all or part of the seller's facilities and the seller's means of storage and marketing;
Serious public unrest, wars, strikes, riots, government actions, epidemics and subsequent health crises, blockage of transport and communication, interruption of energy supply;
Natural disasters, cold spells or similar events;
The unavailability of products, the depletion of stocks and possible delays by the seller’s suppliers,
and more generally any events or causes outside the control of the seller and preventing in good faith the seller from carrying out the delivery of the drinks the object of the order.
Article 5 - Packaging
The products subject to the order shall be supplied by the seller packaged in consideration of the type of transport defined by the order.
It is recalled to this effect:
That such packaging in respect of which the buyer declares that it has obtained all the necessary particulars shall be deemed by the buyer to be capable of preserving the integrity of the products – with the buyer thereby releasing the seller from any prosecution directed against the seller on this basis;
That unless otherwise expressly stated by the seller, the packaging of the products is not taken over by the seller, their cost being an integral part of the selling price to the buyer.
Pallets are not considered packaging – the buyer is committed to preserving their integrity, ensuring their return, and more generally to following the instructions given by the seller as such.
Article 6 – Prices
6.1. The products which are the subject of the order are sold at the price in effect at the time of confirmation of the order by the seller. However, in the event of a postponement of the delivery date at the request of the buyer, the seller shall have the right to apply the price in force on the day of delivery.
6.2. Unless otherwise stated, the seller’s prices are expressed EX WORKS (Incoterm® ICC 2020) seller’s wineries, excluding taxes (VAT plus the buyer’s charge) and in euros (€).
Consequently, all taxes, duties or other charges to be paid, in particular in accordance with national or European regulations, shall be borne by the buyer.
In addition, any request for postponed invoicing or VAT exemption shall be justified by the buyer, not later than thirty (30) days from shipment, by the production of any legally required justification such as a duty-free purchase certificate, an intra-Community identification number, a declaration of exchange of goods, export documents, without this list being exhaustive. Otherwise, VAT will be payable.
6.3. The criteria and conditions for determining the price of products take into account the cost of the spirits part of the composition of the products.
Article 7 – Payment
7.1. Except as specified by the seller, payment shall take place thirty (30) days end of month from the date of delivery of the products.
Invoices shall be payable at the registered office of the seller or at any place designated for that purpose by the seller to the buyer.
Payments shall be made in euro (€) and by cheque or paper instrument or more generally any method of payment expressly and previously accepted by the seller, in accordance with the payment due date adopted for the order – with the buyer making all arrangements for the payment to be effective on such date.
It is understood that the mere surrender of a security creating an obligation to pay does not constitute a payment within the meaning of this clause, and the seller’s claim over the buyer remains with all the guarantees attached thereto, including the reservation of ownership, until payment has been made in full.
No claim by the buyer will be such as to delay the agreed payment deadline.
7.2. No discount is granted in the case of prepayment.
Any deductions and/or compensation arising from the buyer shall be expressly excluded, unless the seller has prior written consent.
The receipt by the seller of payment securities involving deductions or compensation made by the buyer cannot be deemed to be an implied acceptance by the seller of such practices.
7.3. Any order that is not paid on the due date will generate the application of the following:
late payment penalties due the day following the settlement date on the invoice. The rate applicable to the remaining amount due is the interest rate applied by the European Central Bank to its most recent refinancing
operation plus ten (10) percentage points as defined in article L. 441-10, II of the French Commercial Code. These penalties run until the full payment of the amount due.
a lump sum allowance of forty €(40) for recovery costs. Where the cost of recovery incurred by the seller exceeds the amount of this lump sum allowance, the seller reserves the right to request additional compensation on presentation of the relevant supporting documentation.
In addition, the seller may, at its own discretion:
suspend its obligations with respect to the order subject to the delay and all orders in progress until full settlement of the sums which the buyer remains obliged to pay;
make the execution of the outstanding orders conditional on the taking of guarantees or new terms (including new settlement terms) giving any guarantees of payment to the seller and deemed satisfactory by the seller;
terminate the order as a condition of right, the seller may – if the buyer fails to fulfil its obligation to return the products in issue – repossess the products concerned;
offset the amount of the unpaid invoice with any amounts owed by the seller to the buyer.
Furthermore, failure to pay a single invoice shall, at the discretion of the seller, immediately make the amount of the remaining invoices due to the seller.
Any deterioration of the buyer’s credit and in general any modification – whatever the origin – of the buyer’s situation may justify the requirement of guarantee(s) and/or special payment terms fixed by the seller, even the refusal by the seller to give effect to the orders placed by the buyer.
Article 8 – Amendment of prices and sale conditions
The seller reserves at any time, in particular, in view of market fluctuations, in particular the addition of a new tax or any modification of the products concerned (change in the packaging conditions, etc.), the right to make any modification concerning its prices or conditions of sale.
Except in exceptional circumstances involving an immediate change, any tariff change shall be communicated to the buyer within eight (8) weeks prior to its implementation.
Article 9 – Transfer of risks
The seller’s products are deemed to be compliant and approved accordingly by the buyer on departure from the seller’s wineries in SIREUIL (16440) – France.
From delivery as defined above, the products subject to the order are in the custody of the buyer who fully bears the risk of loss and more generally the damage that said products could suffer or cause, this for any cause and for any purpose. It follows in particular that the products subject to the order always travel at the risk and peril of the buyer who is responsible, on delivery of the wines by the carrier, in the event of damage, loss or shortage, for reporting any necessary findings and confirming reservations by registered letter with request for acknowledgement of receipt within three (3) days, excluding public holidays, following delivery of the goods.
The buyer will have to purchase insurance guaranteeing all risks born from the time of the availability of the products.
Article 10 – Receipt – Compliance
10.1. It is the responsibility of the buyer to take possession at the agreed place, date and time of the products to be ordered.
In the event that the buyer has not removed the products within thirty (30) days of the issuance by the seller of the removal notice, the buyer shall compensate the seller for the delay in the collection of the products.
10.2. Upon delivery, the buyer shall check the condition, quantity, quality of the products and more generally the compliance of the products delivered with the content of the order concerned.
It is stated in this respect that any order is previously verified by the seller before delivery of the products to the seller's premises. Any order leaving the seller’s premises is therefore presumed to be compliant and it is up to the buyer to prove – in addition to the existence of the non-compliance – that the non-compliance is attributable to the seller.
Any reservation or dispute regarding the compliance of the products shall be immediately notified to the seller by registered letter with acknowledgment of receipt upon receipt of the products, irrespective of any reservations to be made to the carrier in accordance with the regulations in force.
It is the responsibility of the buyer to provide any justification as to the reality of the defects or faults found, and to take all steps so that the seller can make the finding of such defects or faults and, where appropriate, remedy them. In addition, the buyer shall refrain from intervening itself or from using a third party for this purpose, as the procedures for intervention are freely determined by the seller.
Failure to comply with these conditions will result in the products being deemed to be compliant and the seller's liability will not be challenged, the buyer being held responsible for any damage suffered by the seller as a result of non-compliance with this procedure.
Article 11 – Return of products
No return of product may take place without the prior written consent of the seller. The regime applicable to such return shall be defined by the seller and communicated to the buyer.
In the event of a return accepted by the seller, the seller shall have the right to refund the price of the product(s) returned or to exchange them with identical products.
The buyer shall bear the costs and risks of returning the product.
Article 12 - Storage and preservation of products
In order to maintain all the qualities of the products sold, the buyer agrees to comply with the rules of storage and preservation of use, including the following rules:
Do not subject products to temperatures below 0°C. In fact, below 0°C, the product freezes, resulting in a separation of alcohol and water. When warming up the product, precipitation - which cannot dissolve even at room temperature - may occur;
Do not subject products to temperatures above 23°C. Indeed, at this temperature and due to expansion, the alcoholic liquid in the bottles increases its level and can be in direct contact with the cap, which may lead to a discharge of cap particles or a dissolution of paraffin. A clear taste of stopper or mould may then appear;
Do not store alcohol bottles top down or horizontally. Otherwise, the alcoholic liquid contained in the bottles will come into direct contact with the cap, which may lead to the release of cap particles or wax dissolution. A clear taste of stopper or mould may then appear.
These rules must be observed at all times and in particular during the transport of the products and when they are stored in the warehouse. Otherwise, the seller cannot be held responsible.
Article 13 – Reservation of ownership
Products whose sale is governed by these General Conditions of Sale are sold with a clause expressly subordinating the transfer of their ownership to the full payment of the principal and accessory price.
The above provisions shall not preclude from the delivery of the products to the transfer to the buyer of the risks of loss or deterioration of the products, as well as any damage which they may suffer or cause.
The buyer shall purchase insurance guaranteeing all risks arising from the delivery of the products subject to the order and allowing the seller to be directly compensated.
The buyer shall at all times ensure that products for which payment has not been made are individualised and identified as the property of the seller and in particular not confused or claimed by third parties.
The buyer shall not pledge or assign ownership of the products in any form as a warranty. In the event of seizure or any other intervention by a third party on the products, the buyer must inform the seller without delay, in order to enable it to oppose it and to preserve his rights.
The products may be, at any time, and without the need for prior summation, taken over at the expense of the buyer by the seller in the event of non-performance of the buyer’s obligations – and this without prejudice to the payment to the seller of any damages in this respect. Consequently, the seller and/or its carrier will be allowed to enter the premises of the buyer to remove the products covered by the reservation of ownership clause. This procedure is not exclusive to other actions or judicial proceedings which the seller may decide to engage.
In the event that the buyer would be subject to collective proceedings, it agrees to inform the seller of this situation, by registered letter with request for notice of receipt, within eight (8) days of the delivery of the judgment on the opening of the collective proceedings, so that the seller is able to claim the goods in kind from among the buyer’s assets.
Article 14 – Intellectual property
No element of the commercial relationship between the seller and the buyer shall permit the buyer to claim the transfer for its benefit or to any third party of any right to property or to exploit all or part of the intellectual property rights (regardless of the nature, scope and/or origin) held and/or operated by the seller in respect of the products which are the subject of the order and/or relating to such products.
The buyer agrees to respect the rights thus held and/or exploited by the seller and to take no action likely to infringe on them and more generally which may infringe the interests of the seller. In particular, the buyer may not alter, modify or delete the mark affixed to the products or resell the products under another name.
Any use by the buyer of a mark, denomination or sign belonging to the seller or operated by the seller shall be the subject of prior written agreement by the seller.
Article 15 – Commercial disputes
Any commercial claim or dispute on the part of the buyer in respect of the whole commercial relationship with the seller in respect of year Y shall be made no later than twelve (12) months after the expiration of the calendar year in respect of which the sum is due.
In the absence of, and by express derogation from, the provisions referred to in article L.110-4 of the Commercial Code, no claim or dispute can be submitted and will therefore be considered to be prescribed and therefore inadmissible.
Article 16 – Personal data
The personal data of the buyer (or its representatives) transmitted to the seller will be used by the seller for the processing and management of the buyer’s order.
Personal data shall be collected in accordance with article 6.1(b) of Regulation (EU) No 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
This data is for the seller only. It may, however, be communicated to third parties to respond to an injunction by the legal authorities made to the seller.
This personal data shall be retained for the duration of the commercial relationship between the buyer and the seller and beyond for a period of three (3) years for commercial prospecting purposes.
The data may also be kept for a longer period in order to fulfil a legal or regulatory obligation or to avail itself of a right, during the time required for the fulfilment of the obligation or the limitation of the right in question.
The individual whose buyer has communicated the personal data to the seller, justifying its identity, may exercise its right of access, rectification and/or deletion of the information concerning it and contained in the seller’s databases, upon request to the latter by post to its registered office.
They also have a right to limit the processing of their personal data, to erasure, to portability of their personal data, to withdraw their consent and to file a claim with the French Data Protection Agency (CNIL).
They may also object to the use of their personal data for prospecting purposes and generally to the processing of its personal data for legitimate reasons.
They may give general or specific instructions respectively to a trusted third party certified by the CNIL or to the seller concerning the retention, deletion and disclosure of their personal data after their death. It may appoint a person responsible for the execution and modify them at any time.
In the absence of directives given in their lifetime, their heirs will have the opportunity to exercise certain rights, in particular the right of access.