GENERAL TERMS AND CONDITIONS OF SALE
I – SCOPE OF APPLICATION OF THE GENERAL TERMS AND CONDITIONS OF SALE
These general terms and conditions of sale govern the contractual relations between the company SARL D PAUL MAS (hereinafter the Vendor), the registered office of which is at Domaine de Nicole, Route de Villeveyrac, 34530 MONTAGNAC, and its clients (hereinafter the Client(s)).
These general terms and conditions of sale form, together with the Tariff Conditions and the single agreement signed with the Client, an indivisible contractual whole.
Prior to any order, these general terms and conditions of sale have been made available to the Client, as laid down in Article L. 441-1 of the Commercial Code.
Every order implies unconditional acceptance of these general terms and conditions of sale which prevail over all other conditions, notwithstanding any stipulation to the contrary that appears in any other document emanating from the Client, including its general terms and conditions of purchase, with the exception of those that have been expressly accepted by the Vendor.
II – PRODUCTS
The Vendor reserves the right to make, at any time, any change that it considers necessary to its Products, with no obligation to change Products previously delivered or in orders pending.
The Client Reseller shall resell the Vendor’s wines in its name, on its own behalf and on its own responsibility, respecting all the legal and regulatory regulations applicable in its country. The Client Export Reseller shall undertake to inform the Vendor without delay of any fact that might constitute a breach of a law or regulation applicable in its country.
III – ORDER
III-1) Order placement
To be taken into account, all orders must be placed in writing or sent by fax or e-mail.
The Vendor reserves the right to refuse all or part of an order. In that event, no penalty can be demanded by the Client.
The contract is entered into when there is agreement on the product and the price and the Client has received acceptance of the order from the Vendor. The Client shall expressly waive the benefit of Articles 1585 to 1587 of the Civil Code.
III-2) Minimum order amount
The minimum amount per order is 240 Euros excluding taxes and excluding shipping costs detailed below.
Back orders which are less than the minimum order amount are not managed by the seller.
III-3) Change – Cancellation of order
Orders are firm and final. No change, transfer or cancellation of the order, whether in whole or in part, by the Client can be taken into account without the prior written agreement of the Vendor. In that case, the deposits paid will remain vested in the Vendor in respect of damages.
III-3) Refusal of order
The Vendor may refuse to honour the orders from its Clients or suspend deliveries, in particular in the event of default or absence of payment by the due date, or offset or unilateral deduction by the Client in relation to previous orders placed.
IV – DELIVERY
The Client shall undertake to respect the collection date stated in the contract. If the collection is not entirely made on the date stated, the payment time limit will take effect on the date set without taking account of the failure to pick up the Products.
IV-1) Time periods
The delivery date is given for information purposes only and without any guarantee. The time periods for mainland France are generally seven (7) working days.
Over-run of that time period cannot give rise to any penalty, indemnity, suspension of payment or cancellation of current orders. In the case of successive sales, in the absence of payment of one instalment, the other deliveries may be suspended until payment of the balance due is made to the Vendor.
IV-2) Acceptance – Transfer of risks
Unless there are express special conditions peculiar to the sale, delivery shall be made by the Products being made directly available in the Vendor’s premises. In that case, the transfer of risks shall take place upon handover of the Products to the Client or to the transporter employed.
In the event that the delivery is effected through the Products being made directly available in the Client’s premises, the transfer of risks shall take place when the Products leave the Vendor’s warehouse.
IV-3) Carriage paid
Sale of Products carriage paid is only possible after the Vendor’s written agreement. In that case, the organisation of the deliveries is undertaken by the Vendor and the delivery is effected by the Products being made directly available in the Client’s premises or at the place for delivery stated by the Client.
The conditions for application of carriage paid for any order delivered in mainland France – one single shipment and to a single delivery point – are specified in the Vendor’s carriage paid tariffs in relation to the volume of the order and the place for delivery.
Beyond that, the transport costs will be invoiced to the Client at the same time as the Products or the order will be refused by the Vendor.
For any export delivery and unless another Incoterm is stipulated, delivery will be made on the basis of the Incoterm EXW: departure from the Vendor’s warehouse, in accordance with the latest current version of the Incoterms drawn up by the International Chamber of Commerce.
Unless otherwise agreed, the Incoterm “EXW”, departure from the Vendor’s warehouse for deliveries in and outside the European Union, or “FCA”, departure from the Vendor’s warehouse for export sales outside the European Union, as set out in the INCOTERMS® CCI 2020 or any later publication applicable at the time of the acceptance of the order by the Client, shall apply to all sales.
V – ACCEPTANCE OF THE PRODUCTS AND CLAIMS
Unconditional acceptance of the Products covers their lack of compliance, whether that is visible or hidden. An absence of reservation made by the Client shall therefore prevent it from relying on non-compliance.
Consequently, the Client must, upon receipt, verify the compliance of the Products delivered with the Products ordered and the absence of visible defects.
To do so, he must:
- Take possession of the Products at the places and at the dates and times agreed;
- Unpack the parcels in the presence of the deliverer, check the compliance with regard to the order and note on the delivery slip the details of any problems noticed;
- Confirm the problems noticed to the Vendor by fax or by e-mail within the three (3) days following acceptance of the Products, providing all proofs as to the reality of the reservations made and problems noticed;
- Keep the Products so that the Vendor may examine them;
- Put the Vendor in a position to check the reality of the complaint corresponding to the non-compliance alleged by the Client.
Failing that, the Client will not be able to rely on any claim, of whatever nature it may be.
Furthermore, if no claim or reservation is made in that respect by the Client, the said Products may no longer be returned or exchanged, in application of the provisions of Article 1642 of the Civil Code.
Any return of a Product that does not comply with the order must form the subject of a written agreement from the Vendor. Without that agreement, the Client must make payment of the entire price.
In the case of visible defect or lack of compliance raised by the Client and acknowledged as such by the Vendor, that will give rise to a credit note or to free replacement, at the Vendor’s choice, excluding compensation or damages.
In all events, a claim by the Client in respect of all, or a part of, the Products, for any reason whatsoever, shall not authorise the Client in any case to withhold payment of any invoice, whether or not it concerns the dispute.
Any product refused at delivery, the return of which is accepted by the Vendor, shall remain the Client’s responsibility until the delivery of the said returned Products, particularly with regard to respect of their normal storage conditions.
VI – USE OF THE PRODUCTS
In view of its professional capacity, the Client will be solely responsible for the choice, the employment and the use of the Products that he purchases from the Vendor.
In that respect, the Client declares that it has been fully informed of the characteristics and developments of the Products purchased from the Vendor.
As wine constitutes a biologically living product, which develops over time, the Client acknowledges that it has been able to obtain all necessary details concerning the packaging, storage conditions (namely, storage in a dry place, away from light, protected from thermal shock and at an average temperature of 17° C), employment, and use, and that it has accordingly purchased and used them with full knowledge of the facts.
In view of the necessity to safeguard consumers’ safety and to protect the good reputation of the Products and the Vendor, and in view of the Client’s professional capacity, the latter shall undertake to inform the Vendor without delay and, acting together with it, to put in place all preventive and/or corrective actions, particularly in the case of: a) a complaint from a client, a public authority or more generally, any third party; b) a state of crisis affecting the Vendor’s products or similar Products (in particular, defect in the product or defect in the packaging).
VII – LIABILITY
The Vendor can in no event be held liable in the event that the Products do not comply with standards and regulations that enter into force after their delivery.
Furthermore, the assumption of damages related, in particular, to incorrect warehousing, storage or handling of the Products by the Client, to defective delivery to the consumer, to an event of force majeure, and more generally to any operation outside the Vendor’s control, shall be the sole responsibility of the Client, and cannot therefore give rise to any assumption by the Vendor.
The Vendor’s civil liability shall be limited to direct material damage caused to the Client, and to its clients/sub-purchasers, which may result from faults directly and exclusively attributable to the Vendor in the performance of the contract. In no circumstances will the Vendor be bound to indemnify non-material or indirect damage, foreseeable or not, such as, in particular: operating losses, loss of turnover, loss of profits, loss of opportunity, losses related to commercial detriment, loss of earnings, damage to image, or losses related to immobilisation of the Products. In all events, the Vendor’s civil liability, taking all causes into account with the exception of bodily injury and gross negligence, shall be limited to a maximum of the sums received in respect of the sale the subject of the dispute.
VIII – TARIFF
The Vendor does not have any indicators available within the meaning of Article L 443-4 of the Commercial Code. Indeed, the latter have not been issued by joint trade sources, by the French Observatoire de la Formation des Prix et des Marges (the price and margins observatory) or by any other body. Furthermore, written purchase contracts for wine in bulk entered into by the Vendor concern wines of IGP or AOP status which do not incorporate those indicators..
Those indicators have therefore not been taken into account for determination of the price.
Unless there are express special conditions peculiar to the Sale, the price of the Products sold are those that appear in the price catalogue on the day of the order.
Those prices are firm and final at that date.
They are expressed in euros and stipulated excluding tax, excluding delivery costs, and including packaging (except for special packaging invoiced in addition).
In the absence of negotiation within the meaning of Article L441-3 of the Commercial Code, the tariffs may be changed at any time, respecting a notice period of one month.
VIII-3) Payment conditions
Unless otherwise agreed, invoices issued by the Vendor shall be settled by the Client at thirty (30) days net date of invoice, by bank transfer, letter of credit, automatic direct debit, signed and accepted bill of exchange, or net promissory note without discount.
The remittance of cheques, accepted bills of exchange, or promissory notes must be made speedily. Given the length of time for postal delivery, that remittance time must be one week at most.
Extension of payment terms can only be on an exceptional basis and must form the subject of written agreement from the Vendor.
However, the Vendor reserves the option to require settlement of the price before delivery, or payment on a cash basis without discount, in the case of a new or occasional Client or in the case of a Client’s precarious financial position; in particular, in the case of refusal by our credit insurer to grant cover.
The Vendor reserves the right to assign the debt obligations that it holds in respect of its Clients to a third party. No dispute concerning invoicing or delivery can suspend settlement of the invoice. Even in the event of dispute concerning its wording or its content, any invoice that may, where appropriate, form the subject of later adjustment must be paid by its due date. No automatic deductions and/or offsets, whatever the reasons for those, may be made by the Clients until the Vendor’s prior written agreement has been given.
Unless otherwise provided, no discount for settlement on a cash basis, or for early settlement, shall be granted by the Vendor.
In no event may the payments due to the Vendor be suspended or form the subject of any reduction or offset without written agreement from the Vendor.
Every late payment shall produce as of right, without prior notice, interest on arrears on the basis of three times the legal interest rate. Interest on arrears shall be increased by a fixed charge for recovery costs of 40 euros, in application of the provisions of Articles L441-10 II of the Commercial Code. If the recovery costs incurred by the Vendor exceed the amount of the fixed charge, the Client must bear all the costs, together with the fees of any court officer borne by the Vendor and occasioned by debt collection procedures for the sums due.
In that respect, the Client will owe an additional charge of a minimum of 15% of the sum remaining unpaid on the due date.
The amount of the penalties invoiced will be offset against any sum which may be due to the Client or on the discounts or rebates granted to the latter. Potential claims shall not exempt the Client from the requirement to settle each invoice on the due date.
Failure to pay all or part of the price by the due date fixed shall give the Vendor the option of invoking termination as of right of any sale and/or order pending, together with immediate payability of all the sums remaining due to the Vendor by the Client, even if they have not yet fallen due, and whatever the projected means for payment.
Payment of discounts and rebates granted to the Client shall be subject to the condition of full payment of the transactions effected. They will therefore not be due in the event of failure to observe the payment conditions, outstanding payments, or proceedings for receivership or judicial liquidation.
In the absence of any payment of the price by its due date, the Vendor may terminate the sale as of right, thirty (30) days after notice that has remained ineffective, without prejudice to any damages that may be claimed by the Vendor.
Finally, the Vendor reserves the right to request guarantees of solvency, even during fulfilment of an order. If serious doubts appear as to the Client’s solvency or if it refrains from providing the guarantees requested, the Vendor shall have the right to require prior payment for any delivery or to suspend delivery of the Products.
On the day of consignment or collection, the Vendor shall draw up an invoice in duplicate, one copy of which will be delivered on the same day to the Purchaser.
The invoice shall contain the information set out in Article L. 441-9 of the Commercial Code.
IX – RESERVATION OF OWNERSHIP
The Products are sold subject to reservation of ownership.
The Vendor shall retain ownership of the Products until full and effective payment of the price by the Client.
In the event of absence of payment by the due date, the Vendor may claim back the Products and terminate the sale, as specified above.
Cheques and bills of exchange are only considered as payments once they have been actually encashed.
Until that date, the reservation of ownership clause shall keep its full effect.
Those provisions do not prevent the transfer, upon delivery, of the risks in respect of the Products sold.
The Client shall undertake, until full settlement of the price, on pain of immediate claim of the products by the Vendor, not to transform or incorporate the said products, or resell or pledge them.
X – FORCE MAJEURE
The occurrence of an event of force majeure shall have the effect of suspending performance of the Vendor’s contractual obligations.
An event of force majeure shall mean any event outside the Vendor’s control and preventing normal functioning at the stage of manufacture or consignment of the merchandise, such as: lock-out, strike, bad weather, epidemic, embargo, accident, interruption of or delay in transport, impossibility of being supplied, defectiveness of raw materials, significant change in political situation in the country of one of the parties, or any other event outside the Vendor’s control that leads to partial or total lay-off at the Vendor’s company or at its own suppliers.
In such circumstances, the Vendor shall give warning to the Client, in writing, within 5 days of the occurrence of the events. The contract shall be suspended as of right, without indemnity, as from the date of occurrence of the event.
If the event should last more than 30 days as from the date of its occurrence, the sale contract entered into between the Vendor and the Client may be terminated by the first party to act, without either party being able to claim the award of damages.
XI –INTELLECTUAL PROPERTY RIGHTS – IMAGE RIGHTS
The Client shall undertake to respect all the intellectual property rights and the image rights of properties (chateaux, estates, properties, buildings, works of art), of legal entities and of private individuals (in particular the image of Mr. Jean-Claude MAS and the MAS family: surname, first name, private or professional photograph) of the Vendor, of which it declares that it is fully aware.
In no case may sale of the Products lead to any right to transfer of ownership to the Clients of the trademarks, designs and models, image rights and other distinctive signs under which the Vendor’s Products are marketed.
The Client shall undertake not to alter the said intellectual property rights, and not to make an improper use of them which might discredit or devalue them.
The Products under the Vendor’s trademarks may only be resold in their original presentation and under conditions consistent with their brand identity.
The Client shall undertake not to file, directly or indirectly, within the territory or outside it, any of the trademarks, commercial names, image rights and other distinctive signs granted, or belonging to the Vendor, or which might resemble them, and not to incorporate them, even partially, into its name or one of its distinctive signs or domain names.
The Client shall undertake to inform the Vendor without delay of any infringement of its intellectual property rights or image rights within the territory that are brought to its knowledge. The Client shall undertake to do its utmost to help and assist the Vendor to protect itself against such infringements
XII – “DISTRIBUTOR’S BRAND” PRODUCTS
When the Client orders a product which will be marketed under its trademark, a trademark called the distributor’s brand, the Vendor cannot be held liable for the labelling, the trademark or the visual or for the presentation on the Products.
With regard to any judicial or administrative proceedings commenced against the Vendor (in particular for counterfeit, unfair competition, breaches of regulations governing, in particular, the labelling, wording and trademarks used, etc.), the Client shall undertake:
- (i) to indemnify and cover the Vendor in respect of any judgment that may be made against it, including reimbursement of all the fines, Counsel’s fees, expenses and disbursements which may been incurred;
- (ii) to compensate the Vendor for all commercial and financial losses suffered due to those judgments and/or breaches.
The Vendor may offer the Client a reserved brand, of which the Vendor will remain the sole owner. In that case, and in the event of cessation of the business relationship for whatever reason, the Client shall undertake to cease all use of the brand and the packaging, and more generally to return to the Vendor all the items related thereto.
XIII – PERSONAL DATA
In application of Law n° 78-17 of 6th January 1978 as amended, and of Regulation (EU) 2016/679 of the European Parliament and the Council of 27th April 2016 relating to the protection of private individuals with regard to the processing of data of a personal nature and to the free movement of such data (hereinafter the “GDPR”), as well as any other legislation applicable, the Vendor collects and processes personal data relating to the directors and/or personnel of the Client, a legal entity.
The personal data, that is to say the form of address, the surname, first name, e-mail address and telephone number, are collected purely in a professional framework. They are collected directly by the Vendor from the person concerned.
The processing of personal data implemented has as its legal basis the performance of precontractual and contractual measures within the framework of an order from the Client, for which the collection and processing of the abovementioned personal data is strictly necessary.
In tits respect, the Vendor acts in the capacity of a data controller.
The personal data collected and processed is not transferred to any third party or sub-contractor.
The electronic addresses collected may, however, be used by the Vendor for the purposes of commercial prospection, the subject of which will relate to the Client’s profession. The person approached may object to that commercial prospection by writing to the address firstname.lastname@example.org or by clicking on the “unsubscribe” link appearing in the commercial prospection e-mails received.
The Vendor keeps the personal data for the time necessary for the operations for which they have been collected and respecting the regulations in force, subject to its mandatory legal obligations, in particular of a fiscal and accounting nature, justifying an archiving policy.
Under the conditions defined by Law n° 78-17 on information technology and civil freedoms, as amended, and the GDPR, persons whose personal data are collected have a right of access to the data concerning them and of access, correction, limitation, portability, deletion, complaint and opposition to processing.
The latter may also require that their personal data which are inaccurate, incomplete, ambiguous or out of date should be corrected, completed, clarified, updated or deleted. Their personal data shall also be deleted when the persons concerned expressly withdraw their consent to the collection and processing of their personal data. The persons concerned may also, in respect of the right to portability of the data, recover those concerning them for their personal use, or request that they be transferred to a third party, if that is technically achievable. They may also object, on legitimate grounds, to the processing of the data concerning them, or give the Vendor instructions about their personal data in the event of their death (in particular, deletion or transfer to the heirs whom they have previously named).
In that respect, the rights may be exercised in the following way:
– by e-mail to the address email@example.com
– by post to the following address: Domaine de Nicole, Route de Villeveyrac, 34530 MONTAGNAC
The Vendor shall use the means at its disposal to process the requests relating to the personal data, subject to the mandatory legal provisions (in particular of a fiscal or accounting nature) which are incumbent on it.
The persons concerned have the right to make a complaint to the National Commission for Information Technology and Civil Freedoms (the “CNIL”).
Personal data collected and processed by the Vendor are the subject of confidentiality and security measures, in accordance with its internal policy and within the limit of its technical, financial, human and material means.
In the case of a security breach or loss of personal data processed within the framework hereof, the Client shall be informed by e-mail under the applicable legal conditions. The Vendor shall take all necessary measures to remedy the breach and ensure the safety of the data.
XIV – RESCISSION
Any sale and/or order pending will be rescinded as of right by the Vendor, without notice, by registered letter with acknowledgment of receipt:
- in the case of total or partial failure by the Client to perform its obligations;
- in the case of default in payment by the Client of all or part of the price by the due date;
- in the case of an unfavourable change in the Client’s commercial or financial position, leading to the risk of a default in payment.
That rescission shall arise from the simple fact of the failure to perform; it shall not be conditional on notice that remains ineffective.
In the event of rescission of the contract, the Vendor will be released from all its obligations, including its obligation to deliver. It will refund any sums that the Client may have paid in respect of orders not yet fulfilled, except when the rescission is due to a fault by the Client. The Vendor will not owe any compensation to the Client.
XV – MISCELLANEOUS PROVISIONS
No claim relating to the invoices and discounts will be admitted and taken into account after the 31st March of the calendar year following the year of invoicing.
The failure of the Vendor to respect any one of the obligations placed upon it by the Client cannot result in the immediate cessation of any relationship, such as the termination of orders pending and/or the rescission of sales of Products already delivered.
No stipulation contrary to these general terms and conditions can lead to novation of the whole; these shall remain valid on all the points where an express exception has not been made.
The Client acknowledges that it has taken due note of these general terms and conditions of sale.
XVI – EXTENDED PRODUCER RESPONSIBILITY
The Vendor is a company subject to the legally binding principle of extended producer responsibility (EPR). As such, the Vendor has a ID number delivered by the ADEME (l’Agence De l’Environnement et de la Maîtrise de l’Énergie), according the provisions of the current legislation.
This number is : FR204134_01FXVT
XVII – GOVERNING LAW AND COMPETENT JURISDICTION
These general terms and conditions of sale shall be governed by French law.
Any disagreement relating to the interpretation and the performance of sales of Products shall come within the exclusive competence of the Commercial Court of Béziers.
The Vendor elects address for service at the Domaine de Nicole, Route de Villeveyrac, 34530 MONTAGNAC.