Terms and conditions of sale
Article 1: SCOPE
The purpose of these Terms and Conditions of Sale is to define how sales between Les Trois Chênes SAS and its distributor customers (hereinafter "customers") are performed and the conditions under which they are concluded.
By mutual agreement between the two parties, and unless expressly agreed otherwise in writing by Les Trois Chênes SAS with its customers, our sales are always made on the terms set out below. Consequently, these Terms and Conditions of Sale prevail over any General Purchasing Conditions or any other document issued by the buyer, whatever its wording, unless such documents are expressly accepted in writing by Les Trois Chênes SAS.
These terms and conditions of sale cancel and replace any other terms and conditions of sale previously issued by SAS Les Trois Chênes, and prevail over any other document of Les Trois Chênes SAS such as leaflets, catalogues, advertising material and the like, which are for information and guidance only. Generally speaking, none of the products appearing in those catalogues and price lists may be regarded as a firm offer.
The fact that SAS Les Trois Chênes does not invoke any one of these clauses at a given time does not amount to a waiver of its right to invoke that same clause, or any other clause, at a later date.
These Terms and Conditions of Sale have been drawn up under the law in force. Should that law change for reasons beyond the control of Les Trois Chênes SAS, the company may be obliged to amend the structure of its Terms and Conditions and/or to suspend their application.
SAS Les Trois Chênes undertakes to supply products of merchantable quality in line with the standards and practices in force in the trade.
Article 2 - JURISDICTION
In the event of a dispute, the parties will attempt to reach an agreement within one month of the dispute arising. Failing agreement within that period, all disputes arising from the conclusion and performance of contracts between SAS Les Trois Chênes and its customers shall be brought before the court in whose district the registered office of SAS Les Trois Chênes is located, at the instance of the more diligent party. This attribution of jurisdiction is general and applies to principal claims, incidental claims, interim proceedings, proceedings on the merits and warranty claims, including where there are several defendants.
Article 3 - APPLICABLE LAW - LANGUAGE - CURRENCY
3.1 Applicable law : By mutual agreement between the parties, the law applicable to the contractual relationship between Les Trois Chênes SAS and the customer is French law. These terms and conditions of sale and, more generally, all commercial relations with the buyer are governed exclusively by French law and, on a supplementary basis, by the Vienna Convention on the international sale of goods.
3.2 Language : Only the French version of these terms and conditions of sale is binding on the parties. These Terms and Conditions of Sale, drawn up in French, prevail over any translation that may be made.
3.3 Currency : The method of payment, the currency of account and the payment arrangements are subject to French law. It is expressly agreed between the parties that the currency of payment and the currency of account are the EURO.
Article 4 - RETENTION OF TITLE
4.1 Products sold by SAS Les Trois Chênes shall not become the customer's property until the price has been paid in full, both principal and ancillary amounts, including amounts arising from related services such as transport where this is payable by SAS Les Trois Chênes. Only the actual collection of cheques, transfers or accepted bills shall constitute payment, in accordance with article 12.1.
In this respect, the mere delivery of an instrument creating an obligation to pay, such as a bill of exchange or similar, does not constitute payment within the meaning of this clause.
4.2 Until title passes, the customer must ensure that the products, and the identification marks affixed to them by SAS Les Trois Chênes in accordance with the sales documents, are properly preserved. SAS Les Trois Chênes reserves the right to verify by any lawful means of its choosing that the customer has complied with the above obligations, and the customer may not object to such verification.
4.3 The customer undertakes to inform SAS Les Trois Chênes without delay of any event liable to prejudice the seller's rights.
4.4 The customer shall be required to oppose, by all lawful means, any claims that third parties may seek to assert over the goods sold by way of seizure, confiscation or equivalent proceedings. As soon as the customer becomes aware of such claims, it must notify SAS Les Trois Chênes so as to allow it to safeguard its interests. If a charge is registered over the business operated by the customer, the customer undertakes to give notice of, and to provide evidence of, the legal status of the products sold.
4.5 The customer is authorised to resell or use the products delivered by SAS Les Trois Chênes in the normal course of its business. However, it shall lose this right in the event of suspension of payments or of non-payment of the price when due.
4.6 Failure to pay all or part of the price, as described in Article 4.1, on the agreed due date shall result in the suspension of our deliveries, the right to reclaim the products immediately, and the immediate payability of any sum still owed in respect of that order or of other orders delivered or being delivered. All out-of-court and legal recovery costs shall be borne solely by the customer, in addition to statutory interest.
Accordingly, in the event of non-payment, the buyer must return the unpaid products at its own expense and risk eight (8) days after a formal notice sent by registered letter with acknowledgement of receipt has gone unheeded. Products held in stock by the customer shall be presumed to be the unpaid ones. In such a case the sale shall be automatically rescinded on the day the products are requested to be returned.
4.7 Where SAS Les Trois Chênes takes back the products claimed, the customer is required to make good the loss resulting from their depreciation and, in any event, from their unavailability. Consequently, the customer shall pay SAS Les Trois Chênes, as a penalty clause, compensation set at 30% of the agreed price of the unpaid products, excluding VAT. If performance of the contract makes SAS Les Trois Chênes a debtor for a deposit previously received from the customer, SAS Les Trois Chênes shall be entitled to set off that debt against the claim arising from the penalty clause stipulated above.
Article 5 - ORDERS
5.1 Placing orders : Placing an order implies the customer's written and unreserved acceptance of these Terms and Conditions of Sale, save for special terms expressly agreed in writing by SAS Les Trois Chênes with its customer. Customer orders must state the indicative delivery date requested for each of the products ordered. Failing this, such orders cannot be taken into account by SAS Les Trois Chênes. In any event, orders only become final and bind the seller once their acceptance has been confirmed in writing by the seller, and on the terms of that acceptance.
As the seller's activities depend on a number of factors beyond its control that may result in poor or failed crops, caused by adverse weather as well as by crop losses of any nature and origin whatsoever, it is expressly agreed that the acceptance of orders does not constitute an undertaking to supply all of the products ordered, and that the order may be partly or wholly reduced. As regards fruiting, no varietal certification can be issued. No compensation may be claimed in the event of partial or total non-delivery. Unless otherwise instructed in writing when the order is placed, missing products will, as far as possible, be replaced by those of the closest grade, variety and price.
5.2 Cancellation - Amendment : Since the contract is formed by the order confirmation sent by SAS Les Trois Chênes to its customer in accordance with Article 5.1, any request by a customer to cancel an order or to change its composition, volume and/or price can only be taken into account by SAS Les Trois Chênes on the following conditions:
a) It must be made in writing, in particular by e-mail or fax, within 30 days of the date on which the order confirmation was sent. No cancellation is possible after 1 March.
b) It must be confirmed by the customer by registered letter with acknowledgement of receipt within 48 hours of receipt of the first written request defined in paragraph (a). Failing confirmation in this manner, the cancellation and/or amendment request will not be taken into account by SAS Les Trois Chênes.
c) In the case of specific production or a growing contract, the request cannot be accepted if it reaches SAS Les Trois Chênes after production has started. It is expressly agreed between the parties that cancelling an order once the production process has begun entails payment of that order in full by the customer. Even where the above procedure is followed, SAS Les Trois Chênes reserves the right to refuse any change to an order where it has good reason to do so.
When the order is fulfilled, the seller reserves the right to replace varieties and sizes that are sold out or unavailable with the closest alternatives available.
5.3 Assignment : The benefit of the order is personal to the customer and may not be assigned without the agreement of SAS Les Trois Chênes.
5.4 Small orders : for orders containing many varieties in small quantities, we deliver within two weeks of receiving the order. We cannot hold stock beyond that period without risking being unable to fulfil the order correctly and precisely.
Article 6 - DELIVERY
6.1 If SAS Les Trois Chênes ships the products ordered by its customer via a carrier, delivery is deemed to take place as soon as the goods leave the seller's premises. If the customer collects the goods, delivery is deemed to take place as soon as those products are made available at the premises of SAS Les Trois Chênes.
6.2 SAS Les Trois Chênes will use its best efforts to ensure that the carrier observes the delivery day and time slot notified to it by the buyer. However, it is expressly agreed that these two elements are purely indicative and are not contractual. Delivery times depend in particular on plant maturity, supply possibilities, the order in which orders are received and carrier availability. Delivery times never constitute a firm undertaking to deliver on a fixed date. Any delay in plant growth due to events outside the control of SAS Les Trois Chênes shall justify postponing deliveries, unless the customer decides otherwise.
6.3 Nevertheless, SAS Les Trois Chênes endeavours to meet the times stated on the order acceptance. Deliveries take place according to the date on which orders are received. They are made only subject to availability at the time and subject to technical possibilities and weather conditions.
In any event, failure to observe delivery time slots may under no circumstances give grounds for the buyer to refuse the goods, which it is obliged to accept. Accordingly, any refusal to take delivery of goods on the grounds that delivery time slots have not been observed may engage the buyer's contractual liability towards SAS Les Trois Chênes, which may claim from the buyer the loss suffered as a result of the refusal of the goods. Any overrun of delivery times shall not give rise to the payment by SAS Les Trois Chênes of late-delivery penalties and/or damages to the customer concerned, nor to the cancellation of the order or of any orders in progress. It is understood that any advertising costs incurred by the buyer may under no circumstances be reimbursed by SAS Les Trois Chênes in the event of late delivery, for whatever reason.
6.4 SAS Les Trois Chênes is authorised to make deliveries in instalments over time.
6.5 It is recalled that time limits are suspended in the event of force majeure.
6.6 In all cases, delivery on time can only take place if the buyer is up to date with its obligations towards the seller, whatever the cause.
Article 7 - TRANSFER OF RISK
7.1 It is expressly agreed that risk passes to the customer as soon as the products are delivered to the customer as described in Article 6. From then on, the customer must ensure their preservation, upkeep and use at its own risk and expense. To this end, the customer undertakes to take out effective risk insurance from delivery onwards. See article 8.
7.2 Defects in and deterioration of the goods delivered resulting from abnormal storage and/or keeping conditions at the customer's premises, in particular in the event of an incident of any nature whatsoever, may under no circumstances be charged to the seller. In such circumstances, the seller gives no warranty as to the survival of the plants.
Article 8 - TRANSPORT - DELIVERY - EFFECTS OF FROST
8.1 Reservations : In accordance with Article L.133-3 of the French Commercial Code, it is for the buyer to make all necessary findings in the event of damage or shortages, by entering reservations on the carrier's delivery note at the time of delivery and then confirming them to the carrier by extra-judicial document or registered letter within the periods laid down by articles L.133-3 et seq. of the Commercial Code, with a copy to be sent to the seller within the same periods. The seller therefore declines all liability for delay, loss or damage, for which the carrier alone is responsible.
8.2 Effects of frost If goods arrive during a hard frost, the customer undertakes to place the parcels, without unpacking them, in a cool but unheated room where they can thaw slowly and without damage. As frost is a case of force majeure, the carrier is only liable for the damage caused if the legal transport times have been exceeded. Les Trois Chênes SAS accepts no liability whatsoever in the event of frost.
8.3 Cost : It is expressly agreed between the parties, unless expressly stated otherwise, that the customer will be invoiced for all transport costs relating to the products ordered, that is to say dispatch and transport costs together with any additional costs such as packaging (crates and boxes), plant health charges and transport insurance.
8.4 Delays : The buyer is always solely responsible for judging and making any claims on arrival. Where transport times are exceeded, the consignee has three days, excluding public holidays, to notify its reasoned complaint to the road, sea or air carrier, as applicable, by extra-judicial document or registered letter.
Article 9 - ACCEPTANCE OF PRODUCTS - CLAIMS - RETURNS - WARRANTIES
9.1 Time limits for claims The buyer acknowledges that, as a specialist, it is genuinely able to inspect the products sold. On receipt, it shall inspect the products supplied in accordance with these terms. On the day of delivery the customer must in particular check the accuracy of the three items stated on the delivery note: the number of pallets, crates and boxes delivered. In the event of a discrepancy, the customer must provide full written evidence of the shortages found within two (2) days. Without prejudice to the provisions concerning the carrier, claims relating to apparent defects or to the non-conformity of the products delivered with the products ordered must be duly substantiated, made in writing and sent by registered letter with acknowledgement of receipt within three (3) clear days of delivery of the products.
9.2 The customer must give SAS Les Trois Chênes every facility to carry out any findings it considers necessary.
9.3 Returns: procedure Any return of a product must be formally agreed between the seller and the buyer. Any product returned without such agreement will be held at the buyer's disposal and will not give rise to a credit note. Furthermore, non-performance of the order resulting from the return of products without the seller's agreement shall automatically entitle the seller to compensation, set as a penalty clause at 30% of the value of the order returned, without prejudice to the seller's right to claim compensation for the loss suffered.
The costs and risks of return are always borne by the buyer.
9.4 Returns: consequences Any return accepted by the seller shall, after a qualitative and quantitative check of the products returned, result, at the seller's option, in the replacement of the returned products by identical products or, failing that, in the issue of a credit note against future sales in favour of the buyer. The return of products shall not give rise to any compensation in favour of the buyer.
9.5 Warranties: limits The products are warranted against latent defects within the meaning of article 1641 of the French Civil Code for: one year following the date of receipt of the products; and, where the warranty concerns the trueness of the varieties, within the normal planting periods immediately following delivery — accordingly, once the first growing season following the arrival of the products has ended, no claim can be accepted.
Under the warranty that does not concern the trueness of the varieties, if, after a qualitative and quantitative inspection of the products, an apparent defect or a shortage is indeed found by the seller or its agent, the buyer may choose to be refunded the price, to request the replacement of the products (if available from the seller) and/or the top-up needed to make good the shortages, or to keep the goods against a price reduction.
Under the warranty concerning the trueness of the varieties, the seller's sole obligation is limited, at the seller's option, to replacing the plants concerned free of charge (if available) or to refunding the products at the price invoiced on delivery. All the soft-fruit varieties sold (RIBES, RUBUS, ACTINIDIA, VACCINIUM, FICUS, etc.) are intended solely for ornamental growing and are not intended for planting in orchards or market gardens, since the plants have no varietal certification and because of their method of propagation.
The seller's liability towards the buyer may not exceed the cost of the goods sold, determined by reference to the price invoiced to the customer for those products. The buyer may not therefore claim compensation on any other grounds, in particular for loss of profit, treatment costs, loss of crop or any other costs relating to that harvest period. Indeed, the results obtained by the buyer depend not only on the variety and quality of the products but also on factors that are difficult or impossible to assess or foresee and that may vary according to the region, the environment, weather and agronomic conditions, and growing techniques and operations. The customer undertakes to isolate non-conforming goods so that they cannot contaminate or be contaminated by other goods, nor be mixed up with them.
The seller may not be held liable for any misuse of the varieties, nor for flowering, fruiting (no varietal certification) or the establishment of the plants sold. No claim may be made regarding the origin of the clone from which the varieties delivered are derived, where the buyer has given no specification before the order was confirmed by the seller under the terms of article 5.1 of these terms and conditions of sale. Claims must be duly substantiated, made in writing and sent by registered letter with acknowledgement of receipt within eight (8) days of their discovery.
9.6 Acceptance without reservation of the products ordered by the customer releases SAS Les Trois Chênes from its delivery obligation in respect of shortages. Claims relating to any non-conforming products must be made in accordance with Article 9.1.
9.7 Any claim made by the customer under the conditions and in the manner described in this article does not suspend payment by the customer for the products delivered that are not affected by an apparent defect duly established by SAS Les Trois Chênes, in accordance with article 9.3.
Article 10 - CONFORMITY OF THE PRODUCTS
10.1 Defects in and deterioration of the products delivered occurring as a result of abnormal use not in keeping with their purpose, of an accident or of a modification by the buyer shall not give rise to any warranty from the seller.
10.2 The buyer is solely responsible for deterioration of the products delivered as a result of abnormal storage and/or keeping conditions at the customer's premises, and such deterioration shall not give rise to the latent defects warranty owed by SAS Les Trois Chênes. The customer undertakes to store and/or keep the products delivered in a place suited to the specific nature of the products.
Article 11 - PRICES EXCLUDING VAT
11.1 The price of the products sold by SAS Les Trois Chênes shall be agreed between the parties and negotiated before each order. Prices so negotiated are ex works, excluding taxes, packaging and levies of any kind.
11.2 Our price lists are indicative and may be amended by SAS Les Trois Chênes.
11.3 SAS Les Trois Chênes reserves the right to revise its prices, in particular if labour, raw material or transport conditions change.
11.4 Prices are stated per unit for orders of 100 or more, excluding taxes and ex works.
11.5 Young plants ordered in quantities of fewer than 100 per variety will be subject to a 15% surcharge on the unit price for 100 or more. Likewise, in the interests of better service and performance, plants with a unit value of less than €5 ordered in quantities of fewer than 10 of the same variety will be subject to a 20% surcharge.
Article 12 - PAYMENT TERMS
12.1 Unless otherwise agreed in writing between the customer and SAS Les Trois Chênes, payment for the products is made at the company's registered office as follows: by cheque, bank transfer or accepted bill of exchange at thirty (30), forty-five (45) or sixty (60) days after the delivery date. Where payment is made by bill of exchange, failure to return the bill will be treated as a refusal to accept it, equivalent to non-payment. Refusal to accept bills after delivery will require the customer to pay the price, costs and interest in cash. All costs and interest arising from failure to comply with an instalment payment plan shall be borne by the customer.
No discount for cash or early payment. The period agreed between the parties for settling the sums due may not exceed 45 days end of month or 60 days net from the invoice date. For any order placed by a new customer, or for orders below €1,500 excluding VAT (excluding royalties and transport), SAS Les Trois Chênes reserves the right to require payment before any delivery.
Invoicing charge : For any order below €150 excluding VAT, we apply an invoicing charge of €15 excluding VAT.
Payment within the meaning of this article means the actual and full collection by Les Trois Chênes SAS of the sum due.
12.2 Suspension : In the event of failure to pay an invoice in full when due, or of failure to collect one of the instalments of a payment plan, SAS Les Trois Chênes reserves the right to suspend any delivery in progress and/or to come.
12.3 Cash payment : Should the credit information obtained by SAS Les Trois Chênes reveal doubtful customer solvency, and/or should the customer provide SAS Les Trois Chênes with false information concerning in particular its reputation or its legal and/or commercial structure, SAS Les Trois Chênes reserves the right to require the customer to pay cash for all orders placed and to grant no discount and/or rebate, unless the customer provides sufficient guarantees such as a bank guarantee. Should the customer refuse to pay cash without offering SAS Les Trois Chênes any sufficient guarantee, SAS Les Trois Chênes may refuse to fulfil the order(s) placed and to deliver the products concerned, and the customer may not claim any compensation.
12.4 Refusal of an order : Where the customer places an order with SAS Les Trois Chênes without having met the payment deadline(s) agreed for previous orders, SAS Les Trois Chênes may refuse to fulfil the order and to deliver the products concerned, and the customer may not claim any compensation.
12.5 Non-payment - Penalties : Non-payment within the meaning of these Terms and Conditions of Sale means any sum not collected by the due date laid down in Article 12.3. Any sum not paid when due shall automatically, and without prior formal notice, give rise to late-payment interest. These penalties are set at 15%, to which is added a fixed sum of €40 for recovery costs. This interest shall run from the day of the original due date until the sums due, both principal and ancillary, have been collected in full. In the event of a dispute between SAS Les Trois Chênes and the customer over one or more lines of an invoice received by the customer, the customer must pay in full, when due, the amount of the undisputed sums. Otherwise, the penalties stipulated in this article will be applied automatically.
The seller may also re-invoice the direct and indirect costs it incurs in recovering debts. Furthermore, in the event of non-payment, forty-eight (48) hours after the first presentation of a formal notice that has gone unheeded, the sale shall be automatically rescinded if the seller so wishes, and the seller may apply for the return of the products in interim proceedings, without prejudice to any other damages. Rescission shall affect not only the order in question but also all previous unpaid orders, whether delivered or being delivered and whether or not payment is due.
In all of the above cases, sums that would be owed for other deliveries, or on any other grounds, shall become immediately payable if the seller does not opt to rescind the corresponding orders.
The customer must reimburse all costs incurred in the contentious recovery of the sums due, including the fees of judicial officers.
Under no circumstances may payments be suspended or set off in any way without the seller's prior written agreement. Any part payment shall be applied first to the unsecured part of the debt, then to the sums that have been payable for the longest.
Claims may not have any effect on the obligation to pay the price.
Article 13 - INTELLECTUAL PROPERTY AND PLANT VARIETY RIGHTS
13.1 Where the catalogue used by the seller or the contract concluded by the parties shows that a variety and/or a trade name enjoys legal protection, the buyer undertakes not to infringe the industrial or intellectual property rights of the seller or of the third party holding those rights.
The customer is bound by all the obligations attached to that right; in particular, it is prohibited from propagating and exporting protected varieties and trade names, even for non-commercial purposes, unless expressly authorised otherwise in writing.
13.2 If a variety or trade name does not, or no longer, enjoys legal protection in France but is still protected abroad, the customer is likewise bound by all the obligations attached to that right.
13.3 Failure to comply with these provisions makes the buyer liable for all consequential loss suffered by the seller and/or by third parties.
Article 14 - FORCE MAJEURE
The following are treated in particular as cases of force majeure (non-exhaustive list):
- frost, flooding, bad weather or any other calamity such as serious disease or pest infestation,
- the impossibility of obtaining raw materials, stock shortages,
- strikes and other industrial action, whether internal or external to the company, such as strikes by all or part of the company's staff or of the seller's usual carriers,
- fire, war, road blockades.
In such circumstances, SAS Les Trois Chênes will notify the customer in writing, in particular by fax, within ten (10) days of the date on which the event occurred. Should the event last more than sixty (60) days from the date on which it occurred, the contract of sale concluded between SAS Les Trois Chênes and its customer may be terminated by registered letter with acknowledgement of receipt by the more diligent party, without either party being able to claim damages. Such termination shall take effect on the date of first presentation of the registered letter with acknowledgement of receipt terminating the contract.
The parties agree to meet within thirty (30) days, at the request of either of them made by registered letter with acknowledgement of receipt, if changes in economic, political, monetary, legal or tax circumstances upset the balance of the contract to the point where performing its obligations becomes seriously prejudicial to one of the parties.
The parties then undertake to renegotiate the financial terms of the contract in a spirit of cooperation and fairness, with a view to restoring a balance comparable to that which existed when the contract was concluded. During this period, which may not exceed thirty (30) days, the contract shall be suspended without compensation.
Failing agreement at the end of the negotiation, the contract shall be suspended without compensation or extension and shall automatically resume as soon as the circumstances that justified applying this clause disappear. However, if those circumstances continue for more than 12 months, the contract shall be terminated at the simple request of either party.
Article 15 - ADDRESS FOR SERVICE
SAS Les Trois Chênes elects domicile at its registered office, 1503 rue de Ligny, 45590 SAINT-CYR-EN-VAL, France.
Done at SAINT-CYR-EN-VAL on 05/01/2018