VINPAI GENERAL TERMS AND CONDITIONS OF SALE
Starting from 1/11/2020 until further notice
1. Application scope / Opposability of the Gcs
These generals terms and conditions (hereinafter referred as Gcs) apply at every sale offer, proforma invoice, order confirmation, commercial invoice or agreement between VINPAI SAS (hereinafter designed as « Seller »), registration number at RCS de Vannes is 534 747 605 00028, and the buyer (« Buyer »).
These Gcs apply at every product marketed by VINPAI SAS.
Any product order entails the Seller’s Gcs unconditional acceptance that make the law for the parties.
Buyer’s Gcs acceptance implies that this latter completely waive to claim the application of its own General Terms and Conditions of Purchase.
The seller reserves the right to modify its General Terms and Conditions of Sale.
2. Commercial offers, orders
a. Prerequisites to offers and/or orders placement
Unless these general terms and conditions provides otherwise, offers and/or proforma invoices are valid during 31 calendar days.
The prior agreement between the parties refers to the applicable commercial conditions: products, item code, price, quantity, exact delivery address, exact invoicing address, incoterm, packaging, payment terms and conditions, as well as any other reference that the buyer wishes to see on commercial and transport documents.
b. Conditions of acceptance of the order
The order is accepted between VINPAI SAS and the Buyer, only after acceptance of the written offer, proforma invoice and/or order confirmation.
This acceptance is subjected to an order confirmation from VINPAI SAS and will be forwarded to the Buyer. This latter is to be delivered by the Seller in regards to the legal, financial and material situation of the Buyer. As a result, the Seller has the right to require payment guarantees or terminate the order without any compensation, if the said situation would be modified between the order and the delivery.
The order must respect the Gcs, the technical data sheet and any other provision agreed between the parties. Non-conform orders will be processed as far as possible by the Seller, without explanation nor liability.
c. Order change conditions
The Seller’s liability cannot be committed in case of total or partial orders.
The Seller reserves the right to cancel, suspend, delay or modify the orders fulfilment, no compensation nor sanction can be claimed in case of:
- Force majeure, a fortuitous event or event or circumstance contractually assimilated to a force majeure case or fortuitous event such as: wars, riot, terrorists, natural disaster, sanitary crisis, laws, governmental measures or orders, movement restrictions, blocus, strikes and temporary production halts or temporary work halts for whatever reason, operated at the Seller’s or at one of his suppliers or subcontractor, raw material shortage, strikes ect.
The Seller will inform the Buyer within due time in the case of any of these events.
- The order does not respect the schedule planned during the order confirmation and/or order quantities. In these cases, the Seller will do his best to satisfy the agreed order but will not be, in any case, prejudiced in any way if he could not execute it in full or in part.
- The Buyer agrees to changes (in accordance with reasonable commercial standards) +/- 10% with respect to the ordered quantity, for security reasons or because of sachets, bags, buckets or big bag fillings methods for delivery, and the Buyer agrees that the amount of the invoice can be increased or reduced.
- Non-compliant order in regards to the Gcs, order confirmation, technical datasheet or other things agreed between the parties.
The applicable price is fixed in the order confirmation. Unless otherwise specified, the price is firm.
The delivery follows the INCOTERMS rules (latest version published by the International Chamber of Commerce).
The delivery can be postponed by as long as the Buyer did not completely fulfil his obligations towards the Seller.
a. Loading by the Buyer
When the Buyer is in charge of the transport, this latter and his carrier must respect respecter the Seller’s opening hours.
As soon as possible, the Seller will advise the Buyer of the possible pick up date.
b. Delivery schedule
The Seller will do his best to respect the delivery schedule. When this latter is aware of a possible delay in delivery, he will announce it to the Buyer at the earliest possible. The Seller has the right to carry out partial or total deliveries.
c. Delivery logistics
The Seller choose by himself the place of departure of his deliveries.
The delivery will take place to the designated place in the order confirmation.
d. Delivery hours
Delivery hours are defined by common agreement between the Buyer and the Seller.
They take into account the preparation time and transit time necessary between the order date and the desired delivery date.
Deadlines must allow the respect of social and transport regulations in place. An appointment with a time window can be validated between the two parties.
e. Handling solutions management
In case of deliveries with refundable support (pallets or other) which belong to the Seller or rented by this latter, these supports must be exchanged or returned immediately.
Otherwise, support not returned (same norm, same number and same quality) will be invoiced, as well as some extra cost triggered by the Seller (for example: invoiced penalties by the renter).
a) Delivery check
The Buyer is obliged to proceed to the following inspection:
- Arrival and departure time
- Visible damages registration
- Numbers of packages in regards to the delivery note(s)
- Number of pallets delivered
- Temperature of the vehicle (in case of products under controlled temperature)
b) Formalisation of the registrations
Checks mentioned in the article 4.7.1 and the possible restrictions are to be mentioned on all copies of the transport documents.
Restrictions must be completed, legitimate and precised. If they mention the product, restrictions must precise the batch number.
Restrictions mentioned in general terms are null and void.
Any delivery which have not been subject to restrictions by the Buyer in the aforesaid article 4.7.2 will be considered as irrevocably accepted by the Buyer and no claim will be accepted.
c) Refusal / product return at the delivery
The Buyer is obliged to take possession of the ordered products at the previously confirmed dated for delivery.
If the Buyer, for whatever reason, other than the delivery of defective products, do not take possession of the products at the delivery: (i) the products will be considered as delivered ; (ii) risks relating to the products are transferred to the Buyer ; and (iii) VINPAI SAS has the right to store the products on the account and at the risk of the Buyer. Such protective measure does not postpone the Buyer’s payment obligation.
No return nor product refusal, no destruction, deduction, compensation or invoicing for any reason whatsoever, could be made with the previous written agreement of the Seller.
This agreement could only take place if:
- The notified products are clearly identified (with at least the batch number)
- Restrictions have been made in line with the Gcs
- Products have been stored and handled by the Buyer under the conditions provided in the article 7.1 of these Gcs
Seller’s agreement could lead to a credit note for the Buyer up to the product refund.
In case of a wrongful refusal from the Buyer, the Seller reserves the right to ask for a compensation for the loss in turnover it has caused and the potential extra costs.
The products not sold and/or not used and/or for which the shelf life is exceeded will not be resumed.
5. Transfer of risks and ownership
The risk transfer will take place according to the INCOTERM chosen for the order.
The ownership risk will only take place after the total payment of the purchasing price fixed on the order confirmation.
If the Buyer does not pay the amount due on the expiry date, the Seller could ask for the products return. Until the total payment of the purchasing price, (i) the Buyer recognizes that he acts as a depositary of the goods in the name of VINPAI SAS, (ii) the Buyer can not use the products as a currency, guarantee, or use the products in any way, and (iii) the Buyer must store the product in such a way that there are clearly identified as being VINPAI SAS’ property. However, the Buyer can use the products in his own production line, while taking into account that VINPAI SAS has immediate and exclusives rights on the product.
6. Export / Specific regulations
a. VAT exemption sales
For VAT exemption sales, if this exemption is to be questioned, and if VAT, penalties and other sums related to this sale are to be claimed by the Seller, the Buyer would ipso facto become indebted to the Seller.
The Buyer will inform the Seller of any mandatory requirements related to the arrival of the products in their destination country (packaging, marking and labelling, documents, registration etc.).
In the event of default or inaccuracy of information given to the Seller resulting in the impossibility for the Seller’s products to enter in the destination country, the Buyer will be, on one side, liable to pay to the Seller the total amount of the invoice, the amount of refunds the Seller would have been entitled to receive and the possible penalties he is subjected to ; and on the other side, shall be entirely responsible of the products, for whose the fate and/or the destination will have to receive the Seller’s express approval.
c. Anti-corruption regulations
Being in a business transaction with VINPAI SAS, the Buyer must comply with all anticorruption and control regulations related to the applicable local or international exportation, and must ensure that its managers, leaders, employees, agents, and representatives do the same.
In particular, the Buyer must abstain to (i) make a payment or any other incentives that may be seen as a bribe or a facilitation payment according to the 2010 UK Bribery Act or any other anticorruption applicable law, (ii) violate any sanction or diplomatic, economical or military restrictions imposed to some countries, individuals or entities by the United Nations, any agency or governmental department from the European Union or the United States applicable to any operation (considered) as part of this Act (UK Bribery Act 2010).
7. Buyer’s commitment
The Buyer shall ensure the compliance of storage conditions of the products in regard to their intended use and to strictly respect the storage and conservation requirements arising from the current regulation or the recommendations made by the Seller in his data sheet.
The Seller dismiss any responsibility in case of non-compliance from the Buyer to one or the other obligation described above.
b. The Buyer shall comply to respect his obligations in terms of tracability.
c. It belongs to the buyers wishing to incorporate or associate the Sellers products or others, to ensure that the locally applicable regulation allows it, and that the products comply with their intended use, especially by doing, at their costs, any useful control or test.
The Buyer declines any responsibility for the consequences of such associations or incorporations, as well as in case of any intervention, in any form, from the Buyer on the products.
d. The Buyer, as a professional, complies to realise on the products, every prior and reasonable quality controls due to its business activity.
a. Without VINPAI’s prior written agreement, the Buyer will not be able to reveal to anyone or state of the existence and content of the orders with VINPAI SAS, except when it is mandatory to execute the order.
The Buyer also acknowledges that during the execution of the order, he could have access to protected or confidential information from VINPAI SAS.
These confidential information will remain VINPAI’s SAS exclusive property and shall not be used by the Buyer for any purpose other than complying with its obligations towards VINPAI SAS.
The Buyer won’t be able to use these information coming from the order.
b. The Buyer acknowledges that the information he will receive are strictly confidential, that he will be responsible, and shall indemnity the Seller and his affiliated companies against any harm suffered by these latter in case of disclosure or non-authorized use of all or part of the information.
9. Terms of payment
Payment terms are specified on the order. No discount will be granted in case of advance payment.
b. Suspension of payment
For no reason shall authorized the Buyer to hold his payment.
No discount nor compensation, for any reason whatsoever, must de made by the Buyer without the prior written agreement of the Seller.
Receipts must be joined to any request to verify its validity.Toute demande devra être accompagnée des justificatifs permettant de vérifier son bien-fondé.
c. Penalties in case of default or delay of payment
By express agreement, any default or delay of payment at the due date, will lead to:
a) Of full right, without need for a prior formal notice:
- the indebtedness and immediate payability of any other invoices not yet dued,
- the indebtedness of any discount, of any type, denomination or calculation method, these latter can only be acquired in keeping with payment terms,
- the right for the Seller to hold his deliveries, cancel or refuse any order from the failing Buyer, without schedule nor compensation,
- the right for the Seller to claim the goods which remain his property.
b) The obligation for the Buyer to pay in addition:
- An interest for delay calculated by applying, starting from the missed deadline, on the total amount of the outstanding sums which became due, at an equal rate to the interest rate applied by the European Central Bank to its latest refinancing exercise (starting on January 1st or July 1st of the relevant year) known at the missed due date, increased by 10 percentage points,
- A 40€ lump sum as recovery costs and, based on the presentation of supporting documents, an additional allowance for recovery costs incurred beyond this lump sum (article L.441-6 of the French commerce code),
- Based on a penalty clause, a 15% fixed allowance of the total amount due and/or becoming due by the forfeiture of the term.
These different sums will be, either deducted from the potential sums due to the Buyer, or invoiced.
Any payment term is a credit that the Buyer reserves the right to grant or not to his customers, based on its assessment of their situation.
If the granting of this credit might involve a risk, he could, at any time, refuse this credit to his customer by requiring a cash payment and a sufficient guarantee to cover the settlement period, either with a sufficient provision, or a payment by confirmed and irrevocable letter of credit, complying with the latest “Rules and practices related to the letter of credit” published by the International Chamber of Commerce.
In case the customer does not respect one or the other of these two methods, the Seller shall be entitle to refuse the sale of his products.
11. Intellectual property
The sale of the products to the Buyer does not impart any right to this latter, of any kind, directly or indirectly, regarding commercial names, trademarks, logos and any other intellectual property right related to the products.
Seller’s products and brands will not be eligible to publicity or use, of any kind, without his prior and written agreement.
The nullity of a clause of these Gcs shall not affect the validity of the Gcs as a whole.
13. Jurisdiction and applicable law
In the event of any litigation and protest that would appear, in regards to the understanding and/or applications of the GCs, the court of exclusive jurisdiction will be Tribunal de Commerce Vannes, even in the event of guarantee call or multiple defendants. The Seller reserves the right to bring the cause to the attention of the Buyers’ domicile court.
b. Applicable law
The French law is the only applicable law.
Failing to request a translation in English of these sales and payment terms, the customer will be deemed to have irrevocably understood and accepted the French version of these same sales and payment terms. In any event, the French version will prevail.