1. General information
These Terms and Conditions of Sale apply to all orders sent to SA SATMAR (hereafter referred to as the “Seller”) by its customers (hereafter referred to as the “Customer(s)”), notwithstanding any contrary clause or condition, referencing contract and/or grouping contract and/or retailer contract coming from the Customer or its group.
As a result, any order sent to the Seller necessarily implies, as an essential and decisive condition, full and unreserved acceptance by the Customer of these Terms and Conditions of Sale, which constitute the sole basis of commercial negotiations, in accordance with the provisions of article L.441-1 of the French Code of Commerce.
Any contrary conditions and, in particular, any general or specific conditions coming from the Customer, including its terms and conditions of purchase and purchase orders, are as a result, unenforceable against the Seller, unless accepted beforehand and in writing.
In any event, any modification or addition to these Terms and Conditions of Sale must be formalized under the conditions stated in article L 441-1 of the French Code of Commerce, specifying the obligations respectively accepted by the parties in the context of this modification or addition.
These Terms and Conditions of Sale can be modified at any time, it being understood that the Customer shall be notified about any modification by simple letter or fax within two (2) months before it is applied.
Failure by the Seller to prevail itself at a given moment of any one of these Terms and Conditions of Sale may not be interpreted by the Customer as renunciation by the Seller of its right to prevail itself of the said terms and conditions at a later time.
2. Scope of application – Category of products – Conditions specific to the customer
These Terms and Conditions of Sale apply in their entirety to all sales to be delivered in European Union and Worldwide to Wholesalers and Distributors, as well as Dining establishments and Fish markets starting from 1 January 2020.
The Customer is informed that establishments which handle, process, unpack and store products of animal origin under controlled temperature in order to transfer them to another establishment are subject to health approval.
They cancel and replace any other Terms and Conditions of Sale previously issued, those which may appear in documents or which may have been approved by any other means.
The products concerned by these Terms and Conditions of Sale are live bivalve molluscs (appearing in the Seller’s price list in effect on the day of delivery of the products).
Therefore, the Customer is obligated to strictly respect, upon receipt of the Products, the regulations applicable to said products and, notably, Regulation (EC) 852/2004 of 29 April 2004 on the hygiene of foodstuffs and, in particular, Regulation (EC) 853/2004 of 29 April 2004 laying down specific rules of hygiene applicable to food of animal origin.
In particular, the Customer must keep a copy of the registration document accompanying the products for at least twelve (12) months following delivery.
The Seller only takes into account orders for the following minimum quantity of products:
- Ten (10) kilos for semi-breeding and breeding products, for orders for delivery in the French territory (DROM COM and Corsica included),
- A thousand (1000) sales units for spat and micro-spat for orders for delivery in the French territory (DROM COM and Corsica included),
Orders below these minimum quantities will not be delivered, except on presentation of an estimate duly accepted by the Customer.
In the case of reservations for products with staggered delivery over a specified period or for orders for quantities of products that exceed the usual practices of the Customer, the Seller may make acceptance of the reservation and the order subject to payment of a deposit equal to 25% of the total amount of the reservation and the order.
Products are sold:
- For micro-spat, in moist socks made of fabric, isolated in Ice packs and assembled and packaged in insulating polystyrene boxes,
- For spat, and livestock and semi-livestock products, in perforated bags and/or combined and packaged in insulating polystyrene boxes.
Orders are sent to the Seller:
- by postal mail to SA SATMAR: La Saline, 47 route du Val-de-Saire, 50760 Gatteville-Phare
- by email to firstname.lastname@example.org,
- by phone at 02 33 23 41 60.
Orders only become final after acceptance by the Seller. This acceptance results from either confirmation of the order by fax or e-mail, or from actual delivery of the products ordered.
The benefit of an order is personal to the Customer and cannot be transferred without the Seller’s agreement.
The Seller reserves the right to refuse orders should the Customer fail to fulfil any of its obligations and, in general, to refuse any order that is abnormal for any reason whatsoever, or placed in bad faith.
Orders are examined according to their order of receipt and stocks of products held by the Seller and, in general, availability of the products specified by the order the Seller announces, during processing by the Seller of the order placed by the buyer, its possibilities to the Customer.
It is also pointed out that the Seller may have a legal obligation to refuse certain orders, in accordance with health regulations in effect.
The Customer is solely responsible for its forecasts and the quantities ordered, and the Seller will not assume any financial or other consequences for orders placed by the Customer which prove to be higher than its forecasts. In particular, no product will be taken back by the Seller for this reason.
The deliveries are subject to Incoterm DDP(Incoterms ICC 2020 version), place of delivery agreed.
The products ordered are supplied by the Seller packaged in consideration of the type of transport indicated on the order.
In this regard, it is pointed out:
- That said packaging about which the Customer declares to have obtained all necessary details is deemed by the Customer as suitable for preserving the integrity of the products the buyer releases the seller from any legal action against the seller on this basis.
- That, unless otherwise expressly indicated by the Seller, the product packaging is not taken back by the seller, their cost being an integral part of the sale price stated to the Customer.
Pallets are not considered as packaging – the buyer agrees to preserve their integrity, return them and, in general, respect the instructions which will be given to it in this regard by the seller.
4.2. Delivery timeframes
The delivery times correspond to the arrangements agreed with Customers according to the places of delivery and the time that orders were received.
As an indication, the time frames applied are generally 24 hours in summer 48 hours in winter.
In any event, on-time delivery can only take place if the Customer is up to date with its obligations to the Seller, regardless of the cause.
4.3. Time and place of delivery
Unless otherwise agreed in writing, delivery will be made by the Seller to the Customer’s warehouses, or to any other place indicated in writing and accepted in writing by both parties.
The choice of transporter and mode of transport used to transport the products will be made freely by the Seller. Deliveries are made exclusively by transporters approved by the Seller.
4.5. Transfer of risks
If the products are transported by a transporter approved by the Seller, the risk (damage caused or endured) linked to the products and, in particular, their perfect conservation, is transferred to the Customer once they are made available to it, notwithstanding the provisions hereafter of the retention of title clause.
In this regard, the Customer is informed that the products must be kept in a temperature-controlled environment which is suitable for conserving the products. The Customer is solely responsible for damage of the products resulting from their storage under abnormal conditions or in a manner incompatible with their nature.
The Seller cannot be held responsible for the costs and risks (damage, missing items, breaks in the cold chain, etc.) linked to the transport of products arranged by the Customer between the reception point defined by the Customer (warehouses and/or platforms) and the final points of sale of said Customer.
In case the Customer calls upon a transporter that is independent from the Seller, or picks up the products directly at the facilities of the Seller, the transfer of risks relative to the products takes place at the time of departure from the warehouses of the Seller. As a result, the products travel at the risk of the Customer.
4.6. Penalties – service level
Delivery time frames are only provided on request and for informational purposes. As a result, no penalty of any kind will be owed, and no order may be cancelled in case of late delivery, notwithstanding the existence of clauses providing the opposite in any terms of purchase of the Customer.
Only the harm actually endured by the Customer, demonstrated and assessed, may be the subject of a request for remedy which may, in any event, only take place after negotiation with the Seller and agreement of both parties.
The Seller is also fully released from its obligation to deliver in the event of force majeure as defined in article 7 below. In this case, the Seller will keep the Customer informed, in a timely manner, of the aforementioned cases and events.
Given the specificity and nature of the Products produced, with the variability of the volumes ordered often forcing the Seller to practice just-in-time methods, no commitment will be accepted with regard to service levels.
5. Receiving – compliance
5.1. Verification of the products
The products are systematically checked by the Seller before being loaded for transport. Thus, the products are presumed as complying with the Customer’s order on the date they are loaded for transport.
Tolerance regarding the quantity of products delivered applies in relation to the quantity of products ordered under the following conditions. This tolerance is set at a maximum of 3% of the ordered quantity of products, whether the sales unit is defined by weight or by number.
This tolerance, accepted by the Customer when ordering, excludes any responsibility of the Seller and/or any reservation expressed by the Customer.
Regardless of the means of transport, the number and/or weight and condition of the products must be checked upon receipt by the Customer in the presence of the transporter.
The costs and risks relative to this verification are the responsibility of the Customer.
5.2. Damage related to transport
In accordance with the provisions of article L.133-3 of the French Code of Commerce, the Customer will be required, if it observes loss or damage, to either state precise reservations on the delivery slip and to send a copy of it to the Seller within 48 hours at the latest to allow the Seller to exercise its rights against the transporter, following receipt of the products, or to submit a request for an assessment within the same period in accordance with the provisions of article L.133 -4 of the French Code of Commerce.
5.3. Reservations related to product conformity
Any reservation or dispute relative to the conformity of the products (concerning, notably, the name of the products, the origin, the quantity, the weight, the unit price, the packaging, the size, the labelling, the accompanying documents, etc.) must be mentioned on the delivery slip or waybill given to the transporter and be confirmed in writing to the Seller within six (6) hours of receipt of the products by the Customer.
Any reservation must be precisely justified in writing by the Customer (authorized signature, name written clearly and company stamp).
In the absence of reservations mentioned by the Customer within the aforementioned six (6) hour period, the products are confirmed as being in conformity by the Customer, and the Seller’s responsibility for conformity of the products can, therefore, no longer be engaged in this respect.
In the event that the Customer finds a non-conformity, and unless this makes the products manifestly unfit for human consumption or any use in accordance with sanitary rules, the products delivered must imperatively be kept at the disposal of the Seller, in compliance with the conservation rules.
The Seller is not responsible for flaws or anomalies resulting from conditions of storage or conservation of the products that are incompatible with their nature.
Processing, transformation or modification of the products delivered, in any way whatsoever, by the Customer is deemed as waiving any right of recourse against the Seller for any reason whatsoever.
The Customer is deemed to be a professional in the same domain as the Seller, unless it is acting as a retail business or central purchasing facility for retail establishments.
The retail trade consists in selling the products in the condition in which they are bought (or after minor modifications) generally to a clientele of individuals.
As a result, the Seller does not assume any consequence inherent to the presence of any hidden defect in the products that the Customer, when it is deemed to be a professional in the same domain as the Seller, is able to detect. This capacity of the Customer excludes all liability of the Seller under the guarantee for hidden defects in products.
When the Customer buys the products as a retail business or a central purchasing facility for retail establishments, the Customer must, in the event of a hidden defect affecting the products, inform the Seller by registered letter with acknowledgment of reception within (48) hours of discovering of the defect.
Otherwise, the Customer will be presumed as having waived any action against the Seller.
It is the responsibility of the Customer to provide all supporting documentation regarding the reality of the defects or anomalies observed.
Moreover, the Customer will have to give the Seller all means to observe these defects. If the defects or anomalies are proven, the Customer may obtain replacement or reimbursement for the products at the choice of the Seller, excluding any compensation or damages, notwithstanding clause providing the opposite appearing in any terms and conditions of purchase of the Customer.
The responsibility of the Seller cannot be incurred (i) if the products have been transported under abnormal conditions or conditions that were incompatible with their nature (hygiene, temperature, etc.), in the case of reliance on a transporter independent of the Seller, (ii) in case the products sold are stored under abnormal conditions or conditions that were incompatible with their nature. Similarly, compliance with the consumption deadline is the responsibility of the Customer, which is solely responsible for its management and the rotation of stocks.
Furthermore, the Seller’s responsibility cannot be incurred in the event of non-compliance by the Customer with the rules applicable to commerce involving food products in general, and notably shellfish (compliance by the Customer with the Consumption Deadlines, reporting obligations and sanitation inspection of the customer’s storage facilities, obligations relative to product traceability, compliance with the cold chain, etc.).
The responsibility of the Seller cannot be incurred in the event of non-compliance by the Customer with the sanitary recommendations on the labels.
The responsibility of the Seller cannot, in particular, be incurred due to possession and/or distribution by the Customer of expired or degraded products.
7. Exemption from liability in the event of force majeure
The obligations of the Seller will be suspended, ipso jure and without formality, and the Seller ‘s responsibility will not be incurred in case of the occurrence of events such as, notably and without this list being exhaustive:
- war (declared or not declared), civil war, riot or revolution, act of piracy,
- sabotage, requisition, confiscation, nationalization, embargo or expropriation,
- natural disaster such as severe storm, cyclone, earthquake, tidal wave, flood, destruction by lightning,
- epidemic, health crisis,
- accident, especially involving tools, machine breakdown, explosion, fire, destruction of any machinery, factories or installations, interruption or delay in transport, default of any transporter, impossibility of being supplied for any reason whatsoever, shortage of raw materials, lack of quality or poor quality of raw materials,
- default of a third party,
- boycott, strike and lockout in any form, work to rule, occupation of factories and premises, work stoppage occurring at the site of the party requesting exemption from liability,
- official act, whether lawful or unlawful, arbitrary or not.
- or any other event beyond the control of the Seller.
In this case, the Seller will do everything in its power to resume, as soon as possible, the performance of its obligations.
The products will be billed according to the prices applicable on the day of delivery. They are expressed excluding taxes, subject to Incoterm DDP (Incoterm ICC, 2020 version), place of delivery agreed.
All imposts, taxes, fees or other services payable under regulations in effect are the responsibility of the Customer. These additional costs are not included in the Seller’s prices and are the subject of separate columns for some and/or separate lines at the bottom of the invoice for others. Under no circumstances may they be included in the price.
The Seller’s prices are deemed to be modifiable at any time, in consideration of technological developments, labour costs, packaging costs, transport costs (passing on of fuel costs by the transporter) or any other modifications decided by lawmakers, the public authorities or any circumstances listed in article 7 having objectively significant consequences on the charges of the Seller.
The new rates will then be communicated to the Customer within a minimum of sixty (60) days before they are applied. Any Customer that places an order after notification about the new price, for delivery of said order after the new prices have taken effect, is deemed as having accepted these new prices, which shall prevail over any different information which could be stated in the order.
Each delivery occurring after notification about the new price will be fully subject to the new price.
9. Payment terms
The Seller bills for its shipments in accordance with applicable regulations.
9.2. Payment terms
Invoices are payable in accordance with the provisions of article L441-9 of the French Code of Commerce.
The selling prices of the products are payable on the due date appearing on the front of the invoices, determined in accordance with article L 441-11 II 1° of the French Code of Commerce, understood as the date that the funds are made available by the Customer to the Seller or to any party substituted by the Seller.
No discount will be granted for early payment.
9.3. Place of payment
Invoices are payable to the address of the issuer appearing on the front of the Seller’s invoices.
9.4. Terms of payment
They are payable by cheque, transfer, direct debit authorization, promissory note or bill of exchange.
Payment by cheque or bill of exchange must reach the Seller in sufficient time (at least 4 days before the due date) for the Seller’s bank account to be credited on the due date mentioned on the invoice.
Commercial paper must be returned to the Seller with the Customer’s acceptance within 15 days of delivery.
Mere remittance of a payment instrument or cheque involving an obligation to pay does not constitute payment as intended under this article. Prior acceptance of a draft or bill of exchange cannot under any circumstances constitute a derogation from the above-mentioned payment time frame.
9.5. Late payment or payment default
Only payment on the agreed date releases the debtor from its obligation. In accordance with the provisions stated in articles L.441-10 and L.441-11 of the French Code of Commerce, any non-performance by the Customer, total or partial, of its payment obligations or any delay, will result in assessment, by right and without a reminder, of a penalty of an amount equal to three times the legal interest rate in effect on the due date. Interest will start to accrue from the payment date appearing on the invoice and will continue to accrue until the day that all amounts due to the Seller are paid in full.
Once a month has started, payment is owed for that month. The Seller may automatically apply said late penalties against any price reduction due to the Customer.
In the absence of payment, even partial, of only one of the payments agreed for any of the deliveries, the Seller reserves the right to request the immediate payment of all sums due by the Customer for any reason whatsoever.
In the event of payment by commercial paper, failure to return the instrument will be considered as a refusal of acceptance comparable to payment default.
No payment may be offset solely at the initiative of the Customer, notably in the event of an allegation by the Customer of a delay in delivery or non-conformity of the product delivered, since the prior written agreement of the Seller is indispensable in such cases, regardless of any opposite provision that may appear in the terms and conditions of purchase of the Customer.
Any unauthorized offsetting by the Seller will be assimilated to payment default, thereby authorizing the Seller to refuse any new order for products and to immediately suspend deliveries in progress after having informed the Customer.
In the event of delay or total or partial non-performance by the Customer of its payment obligations, the Seller may notify the Customer, by fax, email or registered letter with acknowledgment of receipt, of the suspension of its deliveries. These provisions will cease to have effect upon full payment of the outstanding invoices, the Customer then de facto accepting the new delivery times of which it will be notified by the Seller.
In any event, the Seller will be entitled to refrain from delivering new orders until the Customer has fully paid the amounts due in principal, expenses, interest and related charges.
In case of known insolvency, payment beyond the due date, insolvency procedures, the Seller will be able, subject to the mandatory provisions applicable in the Territory where the Customer is established, to cancel the contract in its entirety, upon simple notice sent to the Customer by registered letter with acknowledgment of receipt, without other formality and without prejudice to exercising any of its other rights.
Any downgrade in the Customer’s credit may justify, at any time and depending on the risks involved, establishment of an overdraft ceiling that may be authorized for the Customer, the requirement of certain payment terms, payment for current and future orders in cash and certain guarantees.
This will notably be the case if a sale, lease management, pledge or contribution of its business assets or of some of them, or a change of control or structure of its company or in the identity of its manager, is likely to have an adverse effect on the Customer’s credit.
In the event of non-compliance with the payment period mentioned above, a set indemnity of 40 euros for collection costs, provided for in articles L.441-10 and D.441-5 of the French Code of Commerce, will be required by the Seller in addition to the late fees mentioned above. It is specified that this set indemnity does not limits the amount of other costs that could be incurred by the Seller for the purpose of collecting payment for its invoices.
If, moreover, the Seller is required to call upon a representative (lawyer, bailiff, etc.) to obtain payment of the sums due, it is expressly agreed, under a penalty clause, stipulated as a set amount, by right and not reducible, that an increase, calculated at the rate of 10% of the amount of the sums owed by the Customer, shall be applied, without prejudice to late interest and damages.
10. Retention of ownership
The Seller retains ownership of the Products sold until full payment of the sale price including interest, expenses and related charges.
At any time, the Seller will be able to perform a joint inventory of the products and, in the event of failure to pay a single invoice or part of an invoice due or due to the risk of the Customer’s insolvency, the Seller may reclaim the products at the Customer’s premises at the Customer’s expense and risk or any other equivalent product, of the same nature and of the same quality as the products, even in the absence of an insolvency procedure against the Customer. For this purpose, the Customer agrees to grant the Seller free access to its premises and to inform it of the place of storage of the products. Non-payment, even partial, of any amounts due by the due date may lead to reclamation of the products, independently of the other procedures that the Seller may initiate, notably for the purpose of compensating any harm which it could endure.
The Customer agrees to immediately inform the Seller of any seizure or other intervention by third parties concerning the Products, in order to allow it to protect its rights. The Seller reserves the right to have an inventory drafted or to have unpaid products held by the Customer sequestered. For the purposes of this article, Products in stock will be deemed as corresponding to outstanding claims.
No product return will be accepted without prior written consent from the Seller. Costs related to the transport of returned products will remain the responsibility of the Customer, except in the event of proven non-conformity.
In case of return, the products must be returned in their original wrapping or packaging. They must be returned within 48 hours of delivery.
The return of products after express agreement will result in establishment of a credit note on the invoice corresponding to the delivery.
The return of the products will not result in payment of any compensation and/or penalty.
12. Exclusion of all penalties
Notwithstanding any opposite clauses or provisions which may appear in terms and conditions of purchase, referencing contracts, logistical conditions or special agreements, no penalty will be accepted by the Seller, unless approved beforehand and in writing by the latter party, regardless of the reason for the penalty. The Seller does not accept automatic debits. Any offsetting not authorized by the Seller will be assimilated to payment default, the Seller then being entitled to refuse any new order and stop deliveries corresponding to current orders. Only harm endured and previously demonstrated by the Customer may, after written approval has been obtained beforehand from the Seller, grant the right to compensation. In the event of violation of this clause by the Customer, the Seller may suspend its deliveries.
The Seller also reserves the right to deduct, from rebates or service charges due, any amount that the Customer has automatically deducted.
13. Commercial disputes
Any complaint or commercial dispute on the part of the Customer relative to the commercial relationship with the Seller must be made no later than twelve months after expiration of the calendar year for which the sum is due. Otherwise, and as an express departure from the provisions of article L.110-4 of the French Code of Commerce, no claim or dispute may be presented and will, therefore, be considered lapsed and inadmissible.
14. Personal information
The personal data of the Customer (or of its representatives) sent to the Seller will be used by the Seller for the purposes of processing, managing the customer relationship and commercial prospecting in connection with demand, supply and, in general, product promotion.
Personal data is collected in accordance with article 6.1 b) of Regulation (EU) 2016/679 from the European Parliament and the Council of 27 April 2016, on the protection of natural persons 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 exclusively intended for the Seller. It may, however, be communicated to third parties to respond to an order from legal authorities given to the Seller.
This personal data is kept for the duration of the commercial relationship between the Customer and the Seller, and may be kept until the end of the time limit associated with the obligations of conformity and legal guarantee of the Seller, starting from the last delivery made by the Seller and for five (5) years following the end of the contractual relationship. Regarding the Seller’s prospects, the prospect’s personal data is kept for a period of three (3) years from the time of collection of the prospect’s personal data at the time of contact.
The natural person whose Customer has provided personal data to the Seller, proving his identity, can exercise his right to access, rectify and/or delete information concerning him and stored in the Seller’s database, by request sent to the latter by letter to its head office.
A natural person also has a right to limit the processing of his personal data, to deletion, to the portability of his personal data, to withdraw his consent as well as the right to file a complaint with the Commission Nationale de l’Informatique et des Libertés (CNIL).
He can also object to his personal data being used for prospecting purposes and, in general, to processing of his personal data, for legitimate reasons.
These rights detailed above can be exercised by contacting the Seller at the following email address: email@example.com.
He can give general or specific instructions, respectively, to a trusted third party certified by the CNIL or to the Seller, relative to retention, removal and communication of his personal data after his death. He can designate a person responsible for executing and modifying these instructions at any time.
In the absence of instructions given while he is alive, his heirs will be able to exercise certain rights, notably the right of access.
The Customer warrants the Seller the strict compliance of any processing of personal date it may carry onto Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
15. Applicable law – Assignment of jurisdiction
All of the contractual relations between the Seller and the Customer arising from application of these Terms and Conditions of Sale, and any special agreements which may be made, as well as any disputes arising therefrom, regardless of the nature, will be subject in all respects to French law.
The United Nations Convention on Contracts for the International Sale of Goods (CISG), (Vienna Convention) dated April 11th 1980 is applicable.
Any dispute relative to the relations between the parties, the sale of the Products and these Terms and Conditions of Sale , regardless of the cause, will be subject to the exclusive jurisdiction of the Commercial Court of Cherbourg, including in the event of summary proceedings, orders upon request, multiple defendants or guarantee claims.