General conditions of sale
Article 1 – PURPOSE AND FIELD OF APPLICATION
The purpose of these general conditions is to govern the contractual relations between a principal and a “Transport and/or logistics operator”, hereinafter referred to as the O.T.L., in respect of any commitment or operation whatsoever. in connection with the physical movement, by any mode of transport, and/or the physical or legal management of stocks and flows of any merchandise, packaged or not, from any source and for any destination and/or in connection with the management of any materialized information flow or dematerialized.
The definitions of the terms and notions used in these general conditions are those of the standard contracts in force.
These general conditions prevail over any other general or specific conditions emanating from the principal and not ‘only authorize personalized negotiation.
In the event of special conditions agreed with the principal and in the silence of the latter, the general conditions continue to apply.
2.1 – Prices are calculated on the basis of information provided by the principal, taking into account in particular the services to be carried out, the nature, weight and volume of the goods to be transported and the routes to be transported. borrow. Quotes are established based on the currency rate at the time said quotes are given. They also depend on the conditions and prices of substitutes as well as the laws, regulations and international conventions in force. If one or more of these basic elements were modified after the submission of the quotation, including by the substitutes of the O.T.L., in a manner opposable to the latter, and on the proof provided by the latter, the prices originally given would be modified under the same conditions.
The prices initially agreed will be revised in the event of significant variations in O.T.L. charges. which relate to conditions external to the latter. In the event of a significant change in economic, administrative or regulatory conditions making it detrimental for the O.T.L. the execution of its obligations, the O.T.L. may unilaterally modify the price, in order to take into account the additional cost linked to this modification. The O.T.L. will communicate to the principal its new prices which will apply automatically. Price changes do not authorize the ordering party to cancel their order.
3.1 – Insurance of goods as part of a transport operation
No insurance is taken out by I’O.T.L. without a written and repeated order from the principal for each shipment, specifying the risks to be covered and the values to be guaranteed.
If such an order is given, the O.T.L., acting on behalf of the principal, contracts insurance with an insurance company known to be solvent at the time of coverage. In the absence of precise specification, only ordinary risks (excluding war and strike risks) will be insured.
Intervening in this specific case as agent, the O.T.L. cannot be considered under any circumstances as an insurer. The conditions of the insurance policy are deemed to be known and agreed to by the senders and recipients who bear the cost. A certificate of insurance will be issued, if requested.
3.2 – Insurance of goods in the context of a logistics operation
Unless prior, express and written agreement to the contrary from the O.T.L., the principal insures his goods himself and agrees to waive any all recourse, as well as its insurers, against the O.T.L. and its insurers, regardless of the nature and amount of the damage. A waiver of recourse agreement will be signed to this effect between the O.T.L. and the principal.
Article 4 – EXECUTION OF SERVICES
The departure and arrival dates possibly communicated by the O.T.L. are given for purely indicative purposes. The principal is required to give the necessary and precise instructions to the O.T.L in a timely manner. for the execution of transport services and ancillary services and/or logistical services.
The O.T.L. does not have to check the documents (commercial invoice, packing note, etc.) provided by the ordering party.
All instructions specific to delivery (cash on delivery, declaration of value or insurance, special interest to delivery, etc.) must be the subject of a written and repeated order for each shipment and the express acceptance of the O.T.L.
Any additional or complementary service (i.e. not included in the services initially agreed between the O.T.L. and the principal) must be the subject of an express request from the principal, request which must be expressly accepted by the O.T.L. and which will give rise to additional invoicing.
The O.T.L reserves the right, as an independent company, to subcontract all or part of the services, for all operations and in all circumstances. Acceptance of these general conditions constitutes ratification by the principal of the choice of subcontractor made by the O.T.L. In the event of subcontracting, the liability of the O.T.L will be limited in accordance with the provisions of article 6.
Article 5 – OBLIGATIONS OF THE ORDER
5.1 – Packaging and labeling
5.1.1 – Packaging
The goods must be conditioned, packaged, marked or countermarked, so as to withstand transport and/or a storage operation carried out under normal conditions, as well as the successive handling which occurs necessarily during the course of these operations.
It must not constitute a cause of danger for driving or handling personnel, the environment, the safety of transport vehicles, other goods transported or stored, vehicles or third parties.
The principal is solely responsible for the choice of packaging and its ability to withstand transport and handling.
5.1.2 – Labeling
On each package, object or load carrier, clear labeling must be carried out to allow immediate and unequivocal identification of the sender, recipient, place of delivery and the nature of the goods. The information on the labels must correspond to that which appears on the transport document. The labeling must also comply with all applicable regulations, particularly those relating to dangerous products.
5.1.3 – Responsibility
The principal is responsible for all the consequences of an absence, insufficiency or defect in the packaging, marking or marking. labeling.
5.2 – Sealing
Trucks, semi-trailers, swap bodies, containers, complete once the loading operations are completed, are sealed by the shipper himself or by his representative.
5.3 – Reporting obligations
The principal must make available to the O.T.L. all elements of information necessary for the performance of its services. In this regard, the principal remains responsible for the content and accuracy of the information he transmits to the O.T.L. and guarantees the latter against any legal action which may find its source in said information. The information and instructions provided by the client must be complete, otherwise they may be held liable.
The principal must in particular inform the O.T.L. non-apparent particularities of the goods and any data likely to have an impact on the proper execution of the services. It guarantees the stability of the chemical, organic and physical characteristics of the goods.
The O.T.L. does not have to verify the information communicated by the principal, nor the reality of the characteristics of the products brought to his attention which are presumed to be accurate.
The principal is responsible for all the consequences of a failure to comply with the obligation to provide information and declare the very exact nature and specificity of the goods when the latter requires special provisions, having regard in particular to its value and/or the desires that it is likely to arouse, of its dangerousness or its fragility. Furthermore, the principal expressly undertakes not to provide the O.T.L. illicit or prohibited goods (for example counterfeit products, narcotics, etc.).
The principal bears alone, without recourse against the O.T.L., the consequences, whatever they may be, resulting from erroneous, incomplete, inapplicable declarations or documents, or provided late, including the information necessary for the transmission of any declaration required by customs regulations, in particular for the transport of goods from third countries.
5.4 – Reservations
In the event of loss, damage or any other damage suffered by the goods, or in the event of delay, it is up to the recipient or recipient to make regular and sufficient observations, take reasoned reservations and in general to carry out all acts useful for the preservation of appeals and to confirm said reservations in the legal forms and deadlines, failing which no action can be taken against the O.T.L. or its substitutes.
5.5 – Refusal or failure of the recipient
In the event of refusal of the goods by the recipient, as well as in the event of failure of the latter for any reason whatsoever, all initial and additional costs due and incurred for the account of the goods will remain the responsibility of the ordering party.
5.6 – Customs formalities
If customs operations must be carried out, the principal guarantees the customs representative against all financial consequences arising from incorrect instructions, inapplicable documents, etc. generally leading to the assessment of additional duties and/or taxes, blocking or seizure of goods, fines, etc. of the administration concerned.
In the event of customs clearance of goods benefiting from a preferential regime concluded or granted by the European Union, the principal guarantees to have taken all due diligence within the meaning of customs regulations aimed at ensuring that all conditions for processing of the preferential regime have been respected. The principal must, upon request from the O.T.L., provide the latter, within the required time frame, with any information requested from it in accordance with the requirements of customs regulations. Failure to provide this information within this deadline has the effect of making the principal responsible for all the harmful consequences of this failure in terms of delays, additional costs, damage, etc. However, the rules of quality and/or technical standardization of the goods are the sole responsibility of the ordering party; it is up to him to provide the O.T.L. all documents (tests, certificates, etc.) required by regulations for their circulation. The O.T.L. incurs no liability due to the non-compliance of the goods with the said quality or technical standardization rules.
The customs representative clears under the mode of direct representation, in accordance with article 18 of the Customs Code of the Union.
5.7 – Delivery against reimbursement
The stipulation of delivery against reimbursement does not constitute a declaration of value and therefore does not modify the rules of compensation for losses and damage as defined in article 6 below below.
5.8 – Cancellation
Any cancellation must be confirmed by the principal to the O.T.L at the latest 24 hours before the start date of the operation concerned. Failing this, the O.T.L may claim payment of compensation corresponding to 50% of the agreed price as well as reimbursement of any sums which may have been incurred for the preparation or execution of the operation.
5.9 – Immobilization during loading or unloading
In the event of excess immobilization periods not attributable to the O.T.L mentioned in the standard contracts in force, the O.T.L will receive additional remuneration for transport costs. immobilization of the vehicle and crew in the amount of €45 excluding tax per hour for a maximum of 10 hours, then €450 excluding tax in fractions of 24 hours.
Article 6 – LIABILITY
In the event of proven damage attributable to the O.T.L., the latter is only liable for damages which could be foreseen when the contract was concluded and which only includes what is an immediate and direct result of non-performance within the meaning of articles 1231-3 and 1231-4 of the Civil Code.
These damages are strictly limited in accordance with the amounts set below.
These limitations on compensation indicated below constitute the counterpart of the responsibility assumed by the O.T.L.
6.1 – Liability for substitutes
The liability of the O.T.L. is limited to that incurred by the substitutes in the context of the operation entrusted to them. When the compensation limits for substitutes are not known, are non-existent or do not result from mandatory provisions, they are deemed identical to those set out in article 6.2 below.
6.2 – Personal liability of the O.T.L in the context of transport operations
The limitations on compensation indicated below constitute the counterpart of the liability assumed by the O.T.L.
6.2.1 – Losses and damage
In the event that the personal liability of the O.T.L. would be incurred, for whatever reason and for whatever reason, it is strictly limited:
a) for all damage to the goods attributable to the transport operation as a result of loss and damage and for all the consequences that may result, to the compensation ceilings set in the legal or regulatory provisions in force applicable to the transport in question;
b) in international transport (CMR), the compensation is limited to 8.33 SDR (drawing right special) per kilo of weight raw missing or damaged.
6.2.2 – Other damage
For all other damage and in particular that caused by the delay in delivery duly noted under the conditions defined above, the compensation due by the O.T.L. within the framework of its personal liability is strictly limited to the price of transport of the goods, (duties, taxes and miscellaneous costs excluded), subject of the contract. In no case may this compensation exceed that which is due in the event of loss or damage to the goods.
6.3 – Responsibility of the O.T.L. as part of a rental service for an industrial vehicle with driver
As part of such a service, the O.T.L does not insure the goods transported and is not a guarantor. He is not responsible for damage and losses that the goods may suffer or for delay in delivery, unless the principal can establish that this damage, loss or delay comes from a hidden defect in the equipment, from its lack of maintenance. , a lack of compliance with regulations or a fault in the execution of a driving operation as defined by the applicable standard contract in force. If the liability of the O.T.L is established it will be limited:
For loss and damage in accordance with the provisions of the “General” standard contract in force;
For delays at the price of the service in accordance with the article 6.2.2.
6.4 – Personal responsibility of the O.T.L. as part of a logistics operation
6.4.1 – Losses and damage
In the event that the personal liability of the O.T.L. would be incurred, for any reason and for any reason whatsoever, it is strictly limited to 14 euros per kilogram of gross weight of missing or damaged goods without being able to exceed, whatever the weight, volume, dimensions, nature or the value of the goods concerned, a sum greater than the product of the gross weight of the goods expressed in tonnes multiplied by 2,300 euros and 1,000 euros per handling unit, with a maximum of 50,000 euros per event and without being able to exceed a maximum of 150,000 euros per year.
6.4.2 – Other damages
For all other damages resulting from a breach of the O.T.L. in the execution of the logistics service (particularly in the event of delay), the personal liability of the O.T.L., for whatever reason and for whatever reason, is strictly limited to the price of the service causing the damage. In no case may this compensation exceed that which is due in the event of loss or damage to the goods (article 6.4.1).
In the event of non-achievement of the targeted logistical results, for any reason whatsoever. that is, the O.T.L. cannot be held responsible for operating losses and other indirect damages which could result for the client.
6.5 – Quotations
All quotations given, all one-off price offers provided, as well as general prices are established and/or published taking into account the limitations of liability set out above (6.2).< /p>
6.6 – Declaration of value or insurance
The principal always has the option of subscribing to a declaration of value which, fixed by him and accepted by the O.T.L., has the effect of substituting the amount of this declaration to the compensation ceilings indicated above (6.2.1). This declaration of value will result in an additional price.
The principal may also instruct the O.T.L., in accordance with Article 3 (Insurance of the goods), to take out insurance on his behalf, subject to the payment of the corresponding premium, specifying the risks to be covered and the values to be guaranteed.
The instructions (declaration of value or insurance) must be renewed for each operation.
6.7 – Special interest in delivery
The principal always has the option of making a declaration of special interest in delivery which, established by him and accepted by the O.T.L., has the effect of, in the event of delay, to substitute the amount of this declaration for the compensation ceilings indicated above (6.2.2). This declaration will result in an additional price. The instructions must be repeated for each operation.
Article 7 – PAYMENT CONDITIONS
7.1 – Services are payable in cash upon receipt of the invoice, without discount, at the place of issue thereof, and in any event, within a period which cannot exceed 30 days from of its date of issue. The principal always guarantees their payment. In accordance with article 1344 of the Civil Code, the debtor is deemed to have been given notice to pay simply by the due date of the obligation.
7.2 – Unilateral compensation of the amount of the alleged damages against the price of the services due is prohibited.
7.3 – Any delay in payment automatically entails, on the day following the payment date appearing on the invoice, late payment interest in an amount equivalent to the interest rate applied by the Central Bank European (BCE) to its most recent refinancing operation increased by ten percentage points and fixed according to the terms defined in article L.441-9 et seq. of the Commercial Code, as well as a lump sum compensation for costs of recovery of an amount of €40 in accordance with article D.441-5 of the Commercial Code, without prejudice to possible compensation, under the conditions of common law, for any other damage resulting directly from this delay.
Any delay in payment will result, without formalities, in forfeiture of the term of any other debt held by the O.T.L. which becomes immediately payable even in the event of acceptance of bills.
In any event, the O.T.L. may suspend all orders or services in progress, until the account is cleared, without incurring liability and without the ordering party being able to claim a credit or reimbursement.
7.4 – In the event of failure to pay by the principal within the agreed deadlines, the latter will be automatically liable to the O.T.L for compensation equal to 5% of the sums due including tax, in addition to the late payment interest applicable in accordance with the provisions mentioned above. This compensation will be payable without it being necessary to send prior notice, and without prejudice to any other action that the O.T.L may take.
7.5 – Any partial payment will be charged first to the non-privileged part of the debt.
Article 8 – CONVENTIONAL RIGHT OF RETENTION AND CONVENTIONAL LIEN
Whatever capacity in which the O.T.L. intervenes, the principal expressly recognizes a conventional right of retention, enforceable against all, and a conventional right of lien on all goods, values and documents in the possession of the O.T.L., as guarantee for all claims (bills, interest, costs incurred, etc.) that the O.T.L. holds against him, even prior to or unrelated to the operations carried out with regard to the goods, values and documents which are actually in his hands.
Article 9 – PRESCRIPTION
All actions of the principal to which the contract concluded between the parties may give rise, whether for the main or ancillary services, are prescribed within one year from the execution of the service. disputed of the said contract and, in matters of duties and taxes recovered a posteriori, from the notification of the adjustment.
Article 10 – DURATION OF THE CONTRACT AND TERMINATION
10.1 – In the event of an established commercial relationship, either party may terminate it at any time, by sending a registered letter with acknowledgment of receipt, subject to respecting the following notice periods:
One (1) month when the duration of the relationship is less than or equal to six (6) months;
Two (2) months when the duration of the relationship is greater than six (6) months and less than or equal to one (1) year;
Three (3) months when the duration of the relationship is greater than one (1) year and less than or equal to three (3) years;
Four (4) months when the duration of the relationship is greater than three (3) years, to which is added one (1) week per full year of commercial relations, without exceeding a maximum duration of six (6) months.
10.2 – During the notice period, the parties undertake to maintain the economy of the contract.
10.3 – In the event of serious or repeated breaches by one of the parties of its commitments and obligations, the other party has the possibility of terminating the contract. This termination will take place after (i) the sending of a formal notice sent by registered letter with acknowledgment of receipt which remains without effect at the expiration of a period of one month and (ii) confirmation by a second registered letter with acknowledgment of receipt taking note of this termination to the fault of the defaulting party.
Article 11 – PROTECTION OF PERSONAL DATA
The parties undertake to respect the regulations relating to the protection of personal data by ensuring continuous compliance with the provisions of the Data Protection Act n°78-17 of January 6, 1978 in its latest amended version, of the Regulations European Parliament 2016/679 of the European Parliament and of the Council of April 27, 2016 (hereinafter the “GDPR”), and any current or future law or regulation relating to this regulation (hereinafter together “Regulations applicable to personal data”).
11.1 – Processing of personal data implemented by the O.T.L as data controller:
The O.T.L collects and processes the personal data (hereinafter the “Personal Data”) of the donor’s employees order (contact details, email addresses of contacts working at the ordering party) with whom its technical and commercial teams are in direct contact for (i) the management of the commercial relationship, the management and monitoring of the contract, orders And payments and (ii) for monitoring the customer relationship with the principal, evaluating the level of satisfaction with the aim of improving services, communications of a commercial nature when they concern similar services or related to those of the contract. The O.T.L also collects and processes operating data (contact details, email addresses of sender and recipient contacts) for the provision of services. The implementation of this processing of Personal Data is justified respectively within the framework of the execution of the contract binding the O.T.L to the principal and by the legitimate interest of the O.T.L. No other use of this Personal Data will be made by the O.T.L beyond these processing operations and purposes, except with the prior and express agreement of the Principal. The recipients of the Personal Data are the O.T.L and its subsidiaries as well as any third parties such as subcontractors (transporters or logisticians) and IT service providers participating in the performance of the services (hereinafter “Recipients”). Personal Data may be transferred outside the European Union, to countries recognized by the European Commission as guaranteeing an adequate level of protection of personal data or to countries not recognized as such. Where applicable, the O.T.L will ensure that the transfer is carried out under conditions and methods ensuring effective protection of Personal Data and in compliance with the Regulations applicable to personal data in force. Information relating to these measures can be requested from the Data Protection Officer of the O.T.L. The persons concerned by the processing have a right of access, modification, rectification, and deletion of data concerning them or may request a limitation of the processing thereof and oppose their processing in accordance with the Regulations. applicable to personal data. Data subjects may also exercise their right to portability in order to obtain a copy of their Personal Data in a structured, usable and machine-readable format, so that it can be transmitted to a third party, if this request is eligible. To exercise these rights, they simply need to contact the O.T.L at the following contact details: rgpd@malherbe.fr. These people also have the right to lodge a complaint with a supervisory authority and can also define general or specific directives relating to the fate of their Personal Data in the event of death. The specific directives can be registered with the O.T.L or a trusted digital third party certified by the CNIL. These guidelines may be changed or removed at any time. The Personal Data collected may be kept by the O.T.L for the duration of the commercial relationship and for a maximum of three years after its end. The principal undertakes to inform its staff collaborating with the O.T.L of the provisions of this article.
11.2 – Processing of Personal Data implemented by the principal for the management of the commercial relationship with the O.T.L
The principal may be required to collect and process the Personal Data of employees of the O.T.L. In this context, the principal is considered responsible for processing Personal Data within the meaning of the GDPR and undertakes to comply with the Regulations applicable to personal data. In particular, it is required to inform the people concerned by the processing of Personal Data that it carries out in accordance with Article 13 of the GDPR. In the event that the principal processes Personal Data for purposes unrelated to the performance of the services, he or she is required to inform the persons concerned in accordance with the Regulations applicable to personal data. The principal guarantees compliance with these obligations by its subsidiaries, partners, service providers or subcontractors involved in the provision of the services.
Article 12 – General provisions
12.1 – These conditions are available for consultation online and may be modified at any time at the discretion of the O.T.L. without any other formality than their posting online, only the latest version will be applicable and/or that on the date of receipt by the O.T.L. of the order giver’s order.
12.2 – The fact of not claiming the application of one of the stipulations of the general conditions or of acquiescing in its non-performance in a permanent or temporary manner cannot be interpreted as a waiver of this right.
12.3 – The principal expressly acknowledges to the O.T.L. the right to rely on the client’s status as a service provider for advertising purposes and the services thus provided may appear in all documents aimed at promoting the activity of the O.T.L. from third parties.
12.4 – In the event that any of the stipulations of these conditions is declared null or deemed unwritten, all other stipulations will remain applicable.
12.5 – The O.T.L. and the principal exercise and will exercise their activities independently within the framework of the execution hereof.
12.6 – Documents and information exchanged by the O.T.L. and the principal in the context of the negotiation and then the execution of the services are strictly confidential. The O.T.L. may derogate from the confidentiality obligations imposed on it, exclusively with regard to companies in the MALHERBE Group, its subcontractors and partner companies called upon to intervene within the framework of the service and within the strict limit of the information necessary to said service.
12.7 – The O.T.L. and the principal elect domicile at the address of their respective head office. Notices, notifications and communications will be regularly sent to the elected addresses of the Parties, or to any new address notified at least three (3) working days before the effective date of the change of address.
Article 13 – APPLICABLE LAW AND JURISDICTION CLAUSE
Relations between the O.T.L and the principal are governed by French law.
In the event of a dispute or dispute, only the Courts of Coutances have jurisdiction, even in the event of multiple defendants or warranty claims. However, in matters of order for payment procedure, in combined application of articles 48 and 1408 of the Code of Civil Procedure, and in the event of opposition from the debtor, only the courts of Caen will have jurisdiction.