GENERAL TERMS AND CONDITIONS OF SALE — EMIGA
1 / Application of general sale conditions – Enforceability of general conditions
These general terms and conditions of sale (GTC) constitute, in accordance with Article L.441-1 of the French Commercial Code, the sole basis of the commercial relationship between the Parties, and are systematically addressed or delivered to each Customer requesting herbal products. They apply without restriction or reservation to all sales concluded by EMIGA, regardless of the clauses that may appear on the Customer’s documents, and in particular its general conditions of purchase.
Consequently, any order implies the full and unreserved acceptance of the customer to these GTC. No special condition may, unless formally accepted in writing by the seller, prevail against the GTC. Any contrary condition opposed by the Customer will, therefore, in the absence of express acceptance, be unenforceable against the seller, regardless of when it may have been brought to his attention.
The fact that the seller does not avail himself at a given time of any of these GTC can not be interpreted as a waiver of the right to avail himself subsequently of any of these conditions.
2 / Orders
Orders are only final when they have been confirmed in writing by EMIGA. The seller is only bound by orders taken by its representatives or employees subject to written and signed confirmation. The benefit of the order is personal to the professional buyer and can not be transferred without the agreement of the seller.
Any changes requested by the buyer may only be taken into account, within the limits of EMIGA’s possibilities and at its sole discretion, if they are notified in writing at least 8 days before the scheduled date of delivery, after signature by the Buyer of a specific purchase order and possible adjustment of the price.
In the absence of acceptance by EMIGA, of the Buyer’s requests for modifications, the deposits paid will not be returned, and will be automatically acquired by EMIGA.
3 / Delivery
3.1 / Terms and conditions
Delivery is conducted either by the direct delivery of the product to the purchaser, or by simple notice of availability, or by delivery to a consignor or carrier at the seller’s premises. The products are travelling at the buyer’s risk.
3.2 / Time limits
Deliveries are only made according to availability and dependent arrival of orders. The seller is entitled to make deliveries in whole or in part. Delivery times are indicated as accurately as possible but depend on the supply and transport possibilities of the seller, and do not constitute a strict deadline. Exceeding the delivery time cannot give rise to damages claims, withholding or cancellation of orders in progress. Considered as special cases preventing the seller of his obligation to deliver are the following: major force, fire, strikes, accidents, the impossibility for himself to be supplied.
The Seller will keep the Professional Buyer informed, in a timely manner, of the cases and events listed above. In any case, timely delivery can only occur if the professional buyer is up to date with his obligations towards the seller, whatever the cause.
4 / Reception
It is up to the buyer, in case of damage or missing to make all necessary and detailed findings, and to confirm his reservations as complete as possible (damaged packaging, missing quantities, excess quantities, error of Products, etc.) on the consignment note, signed by the driver, and by extrajudicial act or by registered letter with acknowledgment of receipt to the carrier within three working days of receipt of the goods.
Without prejudice to the measures to be taken vis-à-vis the carrier, complaints about apparent defects or non-conformity of the product delivered with the product ordered or the packing slip, must be made in writing within fifteen days of the arrival of the products.
It will be up to the professional buyer to provide any justification as to the reality of the defects or anomalies found. He must leave the seller every facility to proceed to the observation of these defects and to remedy them. He will refrain from intervening himself or involving a third party for this purpose. For products sold in packaging, the weights and measures at the outset are proof of the quantities delivered. The quantitative tolerances affecting the delivery will be plus or minus 5% calculated on the basis of the number of units appearing in the order, relating to the residual moisture content of the materials that may vary.
5 / Return
5.1 / Terms and conditions
Any return request must be considered and studied by the seller and the buyer beforehand, through a written complaint by email or mail. Complaints relating to delivery must be reported within 15 days of receipt and 30 days for a complaint on the material. No unapproved returns can be accepted. Returns that are not related to a problem emanating from the seller may be accepted but with transport at the expense of the buyer. A discount of 40% will then be applied to the total amount of the credit note.
5.2 / Consequences
In the event of apparent defect or non-conformity of the delivered products, duly noted by the seller, the professional buyer may obtain the replacement of the goods if available), or the refund of the products at the seller’s choice, excluding any compensation or damages.
6 / Use of the products by the professional buyer
As a buyer for the needs of his professional activity. The latter remains bound by an obligation of prudence and precaution in the use of the products and their storage methods which must comply with the prescriptions and the operating protocol made available to him by the seller, the professional buyer must constitute proof of compliance with this obligation. The seller can not be held responsible for misuse of the product by professional buyer.
7 / Prices
The products are supplied at the price in force at the time of placing the order.
The prices are net, excluding taxes on the basis of the rates communicated to the professional buyer and according to the Incoterm of sale. These rates are firm and non-revisable during their period of validity. Any tax, duty, duty or other service to be paid pursuant to French regulations or those of an importing country or a country of transit are the responsibility of the purchaser.
8 / Invoicing
An invoice is drawn up for each delivery and issued at the time of the delivery. Unless a note has been issued, in which case a summary invoice referring to all delivery notes issued, will be drawn up monthly, unless previously agreed.
9 / Payment
9.1 / Terms and conditions
A deposit corresponding to a total percentage of the price may be required by EMIGA at the time of placing the order. A deposit corresponding to a total percentage of the price may be required by EMIGA at the time of placing the order.
Unless otherwise agreed, payments will be made under the following conditions:
- payment of 30 to 60 days net or end of month by check or transfer addressed to EMIGA ;
- payment of 30 to 60 days net or end of month by draft, LCR, promissory note, with or without acceptance, addressed to EMIGA ;
- same payment terms can also be sent to our factoring company, upon information from the seller ;
- Payment in advance on Proforma for any new customer or before had a history of late payment.
In the event of deferred or forward payment, constitutes a payment within the meaning of this article, not the simple delivery of a negotiable instrument or a cheque implying an obligation to pay, but their settlement and final collection on the agreed due date.
9.2 / Delay or default
In the event of late payment, the seller may suspend or cancel all orders in progress, without prejudice to any other course of action.
Any amount not paved on the due date appearing on the invoice entails the application of penalties equal to the interest rate applied by the ECB, increased by 10 points. These penalties will be applied automatically and ipso jure, without any formality or prior notice. The amount of this late payment interest will be automatically charged on any discounts, rebates or rebates due by the seller.
A lump sum compensation for recovery costs, in the amount of 40 euros will be due, ipso jure and without prior notification by the buyer in the event of late payment. EMIGA reserves the right to ask the buyer for additional compensation if the recovery costs actually incurred exceed this amount, upon presentation of supporting documents.
In the event of non-payment, forty-eight hours after a formal notice remained unsuccessful, the sale will be terminated automatically if the seller sees fit, who may request, refer, the return of the products, without prejudice to any other damages. The cancellation will affect not only the order in question but also all previous unpaid orders, whether delivered or in the process of delivery and whether or not their payment is due.
On the other hand, the risk of loss and deterioration will be transferred to the buyer upon delivery of the products ordered. The Buyer undertakes, therefore, to insure, at his expense, the products ordered, for the benefit of EMIGA, by an ad hoc insurance, until the complete transfer of ownership and to justify it to the latter upon delivery. Otherwise, EMIGA would be entitled to delay delivery until the presentation of this proof.
In the case of payment by negotiable instrument, failure to return the instrument will be considered as a refusal of acceptance comparable to a default of payment. Similarly, when payment is made in instalments, non-payment of a single instalment will result in the immediate payment of the entire debt, without formal notice.
In all the above cases, the sums that would be due for other deliveries, or for any other cause, will become immediately due if the seller does not opt for the resolution of the corresponding orders.
Under no circumstances may payments be suspended or subject to any compensation without the prior written consent of the seller. Any partial payment will be deducted first from the nonpreferential part of the claim, then from the amounts whose payment is the earliest The seller does not intend to grant any discount for cash payment or at a date earlier than that resulting from the general conditions of sale.
9.3 / Requirement of guarantees or settlement
The seller reserves the right, at any time, depending on the risks incurred, to set a ceiling on the overdraft of each professional buyer and to require certain payment terms or guarantees. This will be the case in particular if a change in the capacity of the debtor, in his professional activity, in the person of the directors, in the form of the company or if an assignment, lease, pledge or contribution of his fund has an adverse effect on the credit of the professional buyer.
10 / Transfer of risk
The products are deliverable carriage paid or cash on delivery at the agreed place; In all cases, they travel at the risk and peril of the recipient. The transfer of risk on the products, even in the event of an agreed sale carriage paid, takes place as soon as the seller’s warehouses are shipped. Given the methods of conservation of the products during transport, the seller will indicate the maximum period within which the products must be handed over to the professional buyer and can not be held responsible for any time exceedances.
It follows in particular that the goods travel at the risk and peril of the professional buyer to whom it belongs in case of damage, loss or missing, to make any reservations or to exercise all recourse with the carriers responsible.
11 / Retention of title
The seller reserves ownership of the goods delivered by him until the effective payment of the full price in principal and accessory under the terms of the law of May 12, 1980 and January 25, 1985 (law n ° 80-335 of May 12, 1980 and law n ° 85 – 98 of January 25, 1985).
The professional buyer will bear the risk in case of loss or destruction and must take out an insurance policy with a company known to be solvent against loss, theft or destruction. In case of non-payment of a single instalment, the return of the delivered goods may be claimed by the seller and claim will be made by registered letter with acknowledgment of receipt. The seller will retain as a penalty clause deposits that could have been paid prior to the termination of the contract which will occur from the date of claim of the goods. It is expressly agreed that the ownership of the goods that are the subject of this sales contract will only be transferred to the purchaser upon full payment of the sale price. The seller reserves the right to avail himself of this retention of title clause at the slightest default of the professional buyer, and this, by simple registered letter with acknowledgment of receipt. In the event of judicial settlement, this clause is enforceable against the general body of creditors.
12 / Packaging
The products are delivered in a specific packaging. Packaging bearing the seller’s trademark may only be used for its products and may under no circumstances be used for products other than its own. Any breach of this rule would expose the perpetrator to criminal prosecution and damages. In the event of special requests from the Buyer concerning the conditions of packaging or transport of the products ordered, duly accepted in writing by EMIGA, the related costs will be subject to additional specific invoicing.
13 / Intellectual Property
EMIGA retains all industrial and intellectual property rights relating to the products, photos and technical documentation that may not be communicated or executed without its written authorization.
14 / Personal data
The personal data collected from the Buyers are subject to computer processing carried out by EMIGA. They are recorded in his Customer file and are essential to the processing of his order. This information and personal data is also kept for security purposes, in order to comply with legal and regulatory obligations. They will be kept as long as necessary for the execution of orders and any applicable guarantees.
The data controller is EMIGA. Access to personal data will be strictly limited to employees of the controller, authorized to process them by reason of their functions. The information collected may be communicated to third parties linked to the company by contract for the performance of subcontracted tasks, without the authorization of the Buyer being necessary.
In the performance of their services, third parties have only limited access to the data and are obliged to use them in accordance with the provisions of the applicable legislation on the protection of personal data. Apart from the cases set out above, EMIGA is prohibited from selling, renting, assigning or giving access to third parties to the data without the prior consent of the Buyer, unless forced to do so for a legitimate reason.
If the data is to be transferred outside the EU, the Buyer will be informed and the guarantees taken to secure the data (for example, adherence of the external service provider to the « Privacy Shield », adoption of standard protection clauses validated by the CNIL, adoption of a code of conduct, obtaining a certification CNIL, etc.) will be clarified.
In accordance with the applicable regulations, the Buyer has a right of access, rectification, erasure, and portability of data concerning him, as well as the right to oppose processing for legitimate reasons, rights that he can exercise by contacting the controller at the following postal or email address: contact@emiga.fr
In the event of a complaint, the Buyer may submit a complaint to EMIGA’s personal data protection officer of the Commission Nationale de l’Informatique et des Libertés.
15 / Lack of foresight
These General Terms and Conditions of Sale expressly exclude the legal regime of unforeseeability provided for in Article 1195 of the Civil Code for all operations of Sale of Products from EMIGA to the Buyer. EMIGA and the Buyer therefore each waive the right to invoke the provisions of Article 1195 of the Civil Code and the unforeseeability regime provided for therein, undertaking to assume its obligations even if the contractual balance is upset by circumstances that were unforeseeable at the time of the conclusion of the sale, even if their execution would prove excessively expensive and to bear all the economic and financial consequences.
16 / Jurisdiction – Challenge
All disputes relating to the execution of this contract are the responsibility of the Commercial Court of Chartres with sole jurisdiction by express agreement, even in the event of an incidental claim for warranty or multiple defendants and regardless of the geographical location of the disputed materials.
17 / Applicable law – Language of the contract
These General Terms and Conditions are written in French and are governed solely by French law. In the event that they are translated into one or more languages, only the French version would have legal value.
18 / Acceptance of the buyer
These general conditions of sale as well as the rates and scales concerning discounts and rebates attached hereto, are expressly approved and accepted by the Buyer, who declares and acknowledges having perfect knowledge of them, and therefore waives the right to rely on any contradictory document and, in particular, his own general conditions of purchase.