Article 1: Scope
Placing an order implies full and unreserved acceptance of these general terms and conditions of sale which prevail over any other document, in particular, any general terms and conditions of purchase or special terms and conditions not expressly accepted by GILAC, in accordance with Article L441-6 of the French Commercial Code. Any other document than these general terms and conditions of sale, including catalogues, advertisements, and notices, are not contractual and shall only have an informative value. The fact that GILAC does not have recourse to any of these provisions at any given time shall not be interpreted as a waiver of the right to subsequently invoke such provisions. In case of translation, the French version shall prevail.
Article 2: Order
All orders shall be sent in writing or by EDI. The customer shall ensure receipt through the issue of an acknowledgement. Any modification or cancellation of the order requested by the customer shall only be considered if it has been received in writing at least three days before the products are to be shipped. The order, expressing the buyer's firm commitment cannot be cancelled or terminated unless GILAC expressly agrees to this in writing beforehand and all costs for performance, including the study costs, overheads, and a share of the margin have been paid. This exemption shall not apply to international sales or orders for specific products or large volumes. For all orders relating to large volumes, such as, for example, advertising campaigns organised by customers, the customer shall provide a purchase forecast by article at least three months before shipping. Any order accepted by GILAC takes into account the fact that the customer presents sufficient financial guarantees ensuring that it can settle the sums due when they fall due. As such, any change in the customer's financial guarantees entitles GILAC to refuse an order and to require the provision of the customer's accounting documents or the presentation of sufficient guarantees. Any deterioration in the customer's credit may justify the requirement for guarantees or a cash settlement before the orders received are processed. A refusal of credit insurance coverage shall be considered, in particular, as a reason justifying the taking of guarantee or payment terms derogating from Article 6 of these terms and conditions.
Article 3: Delivery
As soon as they leave the factory, goods always transit at the recipient's risk, whatever the transport method and terms of payment of the price. GILAC may make deliveries in full or in part. To avoid any dispute, the customer shall, upon delivery, affix its company stamp and the signatory’s signature and name on the bill of lading. In the absence of supply by the customer of a monthly purchase forecast by article and a joint study of logistic flows to mitigate vagaries linked to transport, delivery times shall be indicative, their exceeding shall not result in any damages, penalty, withholding, or cancellation of open orders or replacement by the customer. GILAC shall also not accept penalties for non-compliance with a service level in the absence of the documents referred to above. The following are considered, in particular, as force majeure relieving GILAC of its obligation to deliver: war, riot, fire, flood, strikes, lockout, accidents, inability of obtaining supplies, etc. In any case, delivery shall only take place if the customer is up to date in its obligations towards GILAC, whatever their subject. Deliveries shall be made on 80x120 disposable pallets. Any exemption shall be requested in writing by the customer and may be subject to a price increase in the event of GILAC’s acceptance of the request. GILAC reserves the right to make, at any time, any changes it deems useful to its catalogue, its products, or their presentation without any obligation to change or take back the products previously delivered or being prepared under the order. Unforeseen circumstances In the event of an unforeseeable change in circumstances on entering into the contract rendering performance excessively onerous for one of the parties, the parties shall renegotiate the amendment of the contract in good faith and Article 1195 of the French Civil Code shall be applied in this regard, the parties declaring that they do not agree to assume the risk of unforeseen circumstances in advance.
Article 4: Complaints
In case of damage to the delivered goods or missing packages, the recipient shall directly exercise its recourse against the last carrier to which it shall not give discharge until it has ensured that the shipment is complete and in good condition, under the conditions and forms referred to in Article L. 133-3 of the French Commercial Code or the CMR if it is an international sale. A copy of the complaint shall also be sent to GILAC. In case of apparent defects, missing products, or non-conformity of the product delivered against the ordered product, complaints shall also be sent to GILAC by recorded delivery with advice of receipt within three days for mainland France sales and seven days for international sales following receipt of the goods. Beyond this period, the goods shall be deemed accepted in full without any qualitative or quantitative restriction. The customer shall provide all supporting evidence as to the reality of anomalies or defects found. The client shall leave to GILAC every facility to ascertain these defects and to remedy them; it shall not intervene itself or involve a third party for this purpose. In the event of a defect or non-conformity of delivered products, duly ascertained by GILAC, and unless there is a specific agreement between GILAC and the retail shop, GILAC shall issue a credit note for the value of the product recognised as non-conforming, to the exclusion of all other compensation or damages. The return of a conforming product shall only be considered with GILAC’s agreement; the customer shall be responsible for transport and a discount of 30% on the initial price shall be applied before the issue of a credit note. If the product arrives in a condition that does not allow to it to be returned to stock, no credit note shall be issued.
Article 5: Guarantee
GILAC certifies that the products it markets comply with French and/or community regulations in force on the day these terms and conditions are signed and are produced with respect for human and children's rights and the labour law in force. The products are guaranteed against any manufacturing defect or hidden defect at the initial sale, excluding wear parts and models intended for display (not guaranteed), for a period of two years or for the duration mentioned on the packaging, subject to the conditions and limitations set out below. The guarantee shall run from the date of purchase by a non-professional consumer customer, as per the date on the receipt (the guarantee shall not be applied in the absence of presentation of said receipt). The guarantee shall be limited, at GILAC's choice, to reimbursement by issuing a credit note to the store or to the repair or replacement by an identical part of the part(s) recognised as defective or causing the malfunction. In no case shall the following be claimed: labour costs, travel costs, or damages, including for loss of use or other. GILAC shall not be held liable nor shall the guarantee be called upon in the event of abnormal use of the product, such as non-compliance or poor installation; deficient user maintenance; use of cleaning products, especially industrial or not intended for toilets or chemical products; attacks by substances or bodies carried by or contained in water or external elements, such as rodents; evacuation of boiling oil or liquids at extreme temperatures, negligence in handling; accidents and impacts, deterioration by foreign bodies; modification of the original product; improper assembly or use of the assembly (in particular non-compliance with the indications in the instructions supplied with the product); lack of care or conservation; damage caused during transport; damage caused during an operation to modify or open the packaging (non-exhaustive list). Any supply of spare parts outside the guarantee period shall be invoiced and shall include the related shipping costs. GILAC guarantees the customer against any complaint or claim from third parties related to its products, including safety, quality, and intellectual and industrial property rights. The guarantee shall only apply after a judgement and exhaustion of the remedies and/or settlement agreement ratified by GILAC. The guarantee shall not cover indirect, commercial, and operating losses or any other prejudice to brand image. Unless expressly agreed, GILAC shall not assume the consequences of a recall or withdrawal of products, when this is carried out at the sole initiative of the customer. Only recall operations carried out at the request of GILAC itself or an administrative authority shall be borne by GILAC in agreement with the customer, without any additional compensation.
Article 6: Price, payment terms and times
The prices are set, carriage and packaging paid, at the place requested in mainland France for all orders over €390 excluding tax. Below this amount, a flat rate of €69 excluding tax shall be applied. Certain orders, containing products of particularly large dimensions or weight, requiring special logistics may be subject to specific transport costs. Orders for overseas France and abroad shall also be subject to specific invoicing for shipping costs. For any order outside of mainland France, administration fees shall be charged. From 1 January 2019, administrative fees of €20 excluding tax shall be automatically applied for any order of less than €500 excluding tax that is not placed on our retail website: https://www.gilac.com Unless otherwise agreed or in the event of an insolvency risk as referred to in Article 2 of these terms and conditions, all invoices shall be payable to Izernore upon receipt of the goods in accordance with Article L. 441-6 of the French Commercial Code. Payment means GILAC’s actual receipt of the amounts due by the customer. In the event of deferred payment or payment in instalments, a payment has the meaning of this article, and does not mean the simple delivery of a bill of exchange or a cheque implying an obligation to pay but their settlement on the agreed due date.
Article 7: Late payment penalties
In the event of late payment, late payment penalties shall be automatically due at the rate applied by the European Central Bank for its refinancing transactions increased by 10 percent. Such interest shall run from the due date until the date of actual collection. As a penalty provision, an amount equal to 15% of the sums due and not paid on the due date shall be payable. In addition to late payment penalties, a flat-rate fee of €40 shall be applied. Any incident occurring with the payment of one instalment shall immediately make all remaining receivables due, without prior notice. GILAC may suspend all orders in progress without prejudice to any other action. In any case, even in the event of a dispute, payments shall not be suspended or be the subject of any compensation without GILAC’s prior written consent. Any partial payment shall be charged first to the non-privileged part of the receivable, then to the sums of which the due date is the oldest. GILAC shall not accept any receivable offsetting, with the exception of cases of legal offsetting referred to in the French Civil Code.
Article 8: Invoicing
The invoice shall include all legal notices and, in particular, the price reductions acquired on the date of the sale and directly linked to this sale. Any discount or trade cooperation agreement having, as a basis for calculation, the turnover achieved by GILAC with the customer, shall be based on the turnover invoiced and collected by GILAC after deduction of credit notes, transport costs, bankruptcy, and possible arrears. Any trade cooperation agreement signed between the customer and GILAC shall be invoiced based on the reciprocity of due dates. Said invoices shall be payable within the same time limits and conditions as those applicable for the payment of goods. The customer, which is a service provider under the trade cooperation agreement, also certifies that the services shall comply with the French Commercial Code and shall substantiate this at first request.
Article 9: Retention of title
Transfer of ownership of the products shall be suspended until full payment of the principal and other charges by the customer, even where payment terms have been granted in accordance with Article L. 621-122 of the French Commercial Code. Any provision to the contrary, in particular, inserted into the customer’s general terms and conditions of purchase, shall be deemed unwritten. It is expressly agreed that GILAC may exercise its rights under this retention of title clause for any of its receivables, all of its products in the customer's possession, these being contractually presumed to be unpaid, and GILAC may recover them or demand them as compensation for all unpaid invoices without prejudicing its right to withdraw from pending sales. The customer may resell the products as part of the normal operation of its establishment. This resale authorisation shall be automatically withdrawn in the event of receivership or liquidation. If such a procedure is initiated, the customer shall inform GILAC by recorded delivery within fifteen days of the declaration of default of payment. This provision shall not prevent the risks of the goods from being transferred to the buyer as soon as they leave GILAC’s factory, said buyer then assuming the responsibility of custodian and guardian of said goods until full payment of the price.
Article 10: Intellectual and industrial property
All technical or commercial documents, sales support tools, including sales and merchandising concepts, shall remain the exclusive property of GILAC, the sole holder of the intellectual and industrial property rights over these items, which shall be returned to it on first request. The client shall preserve these items in good stead, assuming, as such, the responsibility of custodian and guardian. The customer shall also refrain from making any use of these items in a manner that might breach GILAC’s rights or damage its image. GILAC shall also remain the sole owner and user of the rights linked to its brands without the completion of a sale conferring any right to the customer in this regard. The same applies to the intellectual and industrial property rights relating to the products sold.
Article 11: Special provisions for listing GILAC by customers (brands and distributors)
The parties expressly agree to refer to the provisions of the agreement signed on 01/15/2002 between UNIBAL and the FFB (Code of Good Conduct, annex 1 and any updates thereto) for the procedure and the applicable deadlines at the end of trade relations (de-listing and non-renewal of listing). In the event that the long-standing nature and/or the importance of the trade relations justify it or in the event of the existence of previous trade agreements that are more favourable for GILAC, the de-listing or non-renewal of listing notice period shall be increased. In the event of cessation of trade relations, GILAC shall not take back unsold products or stocks of products from the customer. The concepts and other sales support tools shall be returned at the customer's expense. Unless specifically agreed, any new listing or modification of an existing listing shall not result in GILAC’s recovery of stocks of third-party products or own products the marketing of which has been stopped by the brand. Any private label products shall result in a double notice period in order to allow stocks of specific products to be sold by GILAC.
Article 12: Termination
No termination provision may be implemented unless expressly stipulated, including a sufficient period of performance after the formal notice and specifying with precision the commitments the non-fulfilment of which may result in the termination. Any application of Article 1222 of the French Civil Code, relating to the creditor's ability to have the obligation fulfilled itself, shall be expressly excluded.
Article 13: Settlement of disputes
In case of contradiction or difficulty of interpretation, the French version of these general terms and conditions of sale shall take precedence over any other. Any dispute relating to this sale, even in the event of introduction of third parties or multiple defendants, shall be, in the absence of an amicable settlement, the exclusive jurisdiction of the courts of Lyon (France). Only French law shall apply. In the case of international sales, for all questions not governed by these general terms and conditions of sale and French law, the parties shall refer to the Vienna convention on the international sale of goods of 11 April 1980. In the event of a dispute and prior to any legal proceedings, the parties shall have recourse to mediation, in accordance with the mediation rules of the Interprofessional Mediation and Arbitration Centre of LYON (CIMA), to which the parties declare they adhere.
GILAC 47 rue Benoit Bennier 69260 CHARBONNIERES-LES-BAINS General terms and conditions of sale - 01/01/2019