Terms and conditions of sale
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Article 1 – Scope
These General Terms and Conditions (the «T&Cs») apply to the transport and/or logistics and/or other associated services provided by the entities of the MUTUAL LOGISTICS group, jointly or individually (respectively the «Service(s)» and the «Provider») for the benefit of the client (the «Client») and for all associated physical or dematerialised information flows. The T&Cs are deemed accepted as is by the Client, without any reservation, and cancel and replace all general terms and conditions previously exchanged by the parties (the «Parties») with the same scope. It is also agreed that these T&Cs shall prevail over any general or specific terms and conditions of the Client, contractual specifications of the Client and/or any other equivalent document from the Client, unless explicitly accepted in writing by the Provider concerning their content. In the event that any provision of these T&Cs is declared null and void or deemed unwritten, all other provisions shall remain applicable. It is specified that in the absence of specific provisions in these T&Cs (and in the Provider's particular conditions or the contract if such documents have been signed between the Parties), the Services shall be governed subsidiarily by the general conditions of T.L.F governing operations carried out by transport and/or logistics operators.
Article 2 – Implementation of services
2.1. Client's Obligations The Client must communicate the gross weight of the products, including packaging and packing. The products must be packed, packaged and marked or re-marked in such a way as to withstand normal transport and storage operations, as well as the successive handling related thereto. The Client alone is responsible for the choice of packaging and its suitability to withstand these operations. The information on the labels must correspond to regulatory and health declaration requirements, traceability needs and the product's accompanying documents, without any obligation for the Service Provider to verify the documents (labels, commercial invoices, packing notes, etc.) provided by the Client. The products must not pose a danger to driving or handling personnel, the environment, the safety of transport equipment, other transported or stored products, vehicles or third parties. The expiry, sale or minimum durability dates of the entrusted products are set by applicable regulations. Failing this, the Client provides instructions, consistent with regulatory and health requirements for perishable products, and the Service Provider complies with them (with compliance of product contact with regulatory and legal requirements).
2.2. Refusal of Products: The Customer is required to provide the necessary instructions to the Service Provider in good time for the performance of the Services. The Service Provider may refuse products whose nature is not or is insufficiently described, or which arrive without sufficient prior notice/announcement or outside of site opening hours. The Customer alone bears any consequences of insufficient and/or erroneous and/or late declarations.
2.3. Ownership of Products: The products entrusted by the Client to the Service Provider remain the property of the Client. Consequently, the Parties agree that the Service Provider shall remain unrelated to any dispute concerning the ownership of the products. The Service Provider receives or returns the products in the capacity of receiver or deliverer on behalf of the Client. The Service Provider does not act as consignee or consignor.
2.4. Filling: Trucks, semi-trailers, swap bodies and containers, once loading operations are completed, are sealed by the loader or their representative.
2.5. Reporting obligations: The Client is responsible for all consequences of a failure to provide information and declarations regarding the exact nature and specificity of the goods when these require special arrangements. Furthermore, the Client expressly undertakes not to provide the Service Provider with illicit or prohibited goods (e.g. counterfeit products, narcotics, etc.). The Client alone bears, without recourse against the Service Provider, any consequences whatsoever resulting from incorrect, incomplete, inapplicable declarations or documents, or those provided late, including the information necessary for the transmission of any declaration required by customs regulations, particularly for the transport of goods from third countries.
2.6. Reserves: In the event of loss, damage, or any other detriment to the products, or in the event of delay, it is the responsibility of the consignee or recipient to make regular and sufficient findings, to make reasoned reservations, and in general, to take all actions necessary to preserve recourse and to confirm the said reservations in the legal forms and deadlines, failing which no action may be brought against the Service Provider or its substitutes.
2.7. Refusal or failure of the addressee: In the event of refusal of the goods by the recipient, or failure of the recipient for any reason whatsoever, all initial and additional costs due and incurred on behalf of the goods shall remain the responsibility of the Customer.
2.8. Withdrawal, preparation and dispatch of products: Any product whose minimum durability or expiry date has passed cannot be removed from the warehouse, except in the case of a health pass or for disposal. In the absence of instructions from the Client within a reasonable time, the products may be destroyed by the Service Provider at the Client's expense. The Service Provider shall then be released from all liability regarding the condition of such product and any resulting administrative consequences. Products are prepared and managed on the business days and hours of each site. They are transported according to the timelines of the transport plan and the network of correspondents, provided to the Client for information purposes only. The transport plan may be modified at any time by the Service Provider.
2.9. Cash on delivery: The stipulation of cash on delivery does not constitute a declaration of value and therefore does not alter the rules of compensation for loss and damage as defined in Article 6 below.
Article 3 – Tariffs
3.1. Every prospect or client has the option to obtain the applicable rates and the unit price list from the Provider.
3.2. All prices have been calculated based on the information provided by the Client. In the event of changes in the legal, statutory/regulatory circumstances demonstrated by the Provider, the Parties agree to renegotiate the prices in good faith within one month of notification by registered letter with acknowledgement of receipt from the Provider. Similarly, notwithstanding Article 1195 of the Civil Code, in the event of changes in economic, political, technological, commercial, and operational circumstances which were unforeseeable by the Parties and beyond their control, occurring after the application of the GTC, and which upset the contractual economic balance, the Parties agree to renegotiate the applicable terms in good faith within one month of notification by registered letter with acknowledgement of receipt by either Party.
3.3. Prices do not include duties, taxes, levies and imposts payable under any regulations, particularly fiscal or customs.
3.4. The initially agreed prices are revalued once a year according to the TLF Composite Logistics Costs Index for logistics and Co-Packing services, and the CNR Index for Transport services (Long Distance EA / Regional EA excluding fuel).
Article 4 – Invoices
Invoices shall be transmitted electronically and are payable within 30 calendar days of the invoice date, with no discount. Any deduction or set-off made by the Client against the Provider is excluded. Failure to pay all or part of an invoice by a single due date shall automatically result in the forfeiture of the term, without further formality, making immediately due and payable, by right, any sum owed at the date of such default, and shall authorise the Provider to demand payment in cash before the performance of any new Service. Furthermore, these sums owed shall automatically incur late payment penalties equal to the interest rate applied by the European Central Bank to its most recent refinancing operation, plus 10 points, as well as a fixed sum for recovery costs, amounting to €40, or a higher amount upon justification.
Article 5 – Contractual right of retention and contractual right of pledge
Regardless of the capacity in which the Supplier acts, the Client expressly grants the Supplier a contractual right of retention, enforceable against all parties, and a contractual right of pledge over all products, assets, and documents in the Supplier's possession, as security for all debts (invoices, interest, incurred expenses, etc.) that the Supplier holds against the Client, even those prior to or unrelated to the transactions concerning the products, assets, and documents actually held by the Supplier.
More generally, it is recalled that as a consequence of the provisions of Articles 1219 and 1220 of the Civil Code, the Service Provider has the right to refuse to perform its service in the event of the Client's failure to meet its obligations.
Article 6 – Liability
6.1. Unless otherwise stipulated in the contract or special conditions signed between the Parties, the Service Provider's liability shall be engaged under the following conditions:
– in case of liability for the acts of sub-contractors: limited to that incurred by the sub-contractors within the scope of the assignment entrusted to them. Where the sub-contractors’ compensation limits are unknown, non-existent, or do not result from mandatory provisions, they shall be deemed identical to those set for the Service Provider’s personal liability. In all cases, it shall not exceed the Service Provider’s personal liability.
– in the event of the Service Provider’s personal liability for damages attributable to loss or damage and for any consequences that may result therefrom: up to a limit of €20 per kilogram of gross weight of missing or damaged goods, not exceeding, regardless of the weight, the volume, dimensions, nature or value of the goods concerned, a sum greater than the product of the gross weight of the goods expressed in tonnes multiplied by €5,000, subject to a maximum of €60,000 per incident. – in the event of the Service Provider’s personal liability for any other damage, including in the event of a duly established delay in delivery: up to the cost of transporting the goods (excluding duties, taxes and miscellaneous charges) or the price of the service giving rise to the damage, which is the subject of the contract. This compensation shall not exceed that payable in the event of loss of or damage to the goods. Damages are strictly limited in accordance with the amounts set out below. All quotations provided, all one-off price offers supplied, as well as the general rates, are drawn up and/or published taking into account the limitations of liability set out above. Furthermore, with regard to warehousing services, the Service Provider shall not be liable for loss or breakage provided that such loss or breakage does not exceed 0.2% of outgoing parcels over a rolling year. An annual adjustment shall be carried out following each annual stock-take. No re-invoicing will be accepted except as part of this annual adjustment, offset by the amount of shrinkage.
6.2. In any event, the Service Provider's liability is limited to proven damages that are attributable to it. The Service Provider is only liable for damages that could have been foreseen at the time of the conclusion of the contract or the special conditions signed between the Parties, and which only include what is a direct and immediate consequence of non-performance within the meaning of Articles 1231-3 and 1231-4 of the Civil Code. The Parties expressly agree that the Service Provider's liability is totally discharged in the following cases: – regarding the manufacture of products, their composition, their intrinsic qualities, their sale and marketing and distribution, their labelling (in particular, in accordance with Regulation (EU) No 1169/2011 on the provision of food information to consumers), their control (in particular, the Client ensures compliance with the microbiological criteria of its products in accordance with Regulation (EU) No 2073/2005). The Client undertakes to comply with and be responsible for all legislation, particularly French and European legislation, relating to the products. In particular, it is obliged to declare imported products in accordance with current legislation. – regarding immaterial damages, whether consequential or not (such as loss of business, commercial damage, differences in replenishment costs, damage to image, reputation, etc.). – regarding all damages, whatever the cause, nature or amount, resulting from a failure of the EDI link, the hardware or computer software belonging to the Client and/or a third party, or over which the Service Provider has no control. Consequently, the Client and its insurers waive any recourse against the Service Provider and its insurers for all damages resulting from the three exclusions of liability set out above in the article.
6.3. Regarding losses and damage caused by events, the Client has taken out their own insurance, with no recourse against the Service Provider and their Insurers.
6.4. By virtue of this, the Client undertakes to make the necessary arrangements with their insurers. Should the Client fail to fulfil this obligation or if the waiver of recourse should become inapplicable in whole or in part, for any reason whatsoever, the Client shall personally provide full and complete guarantee to the Service Provider and its insurers.
6.5. The service provider is authorised to refuse to accept the goods if any pests are present on the goods, their packaging or their pallets. If acceptance has already taken place, the service provider is authorised to place these pallets in quarantine. The Client will then be required to collect the goods without delay. If the client does not collect the goods within 48 hours, the goods will be destroyed by the service provider at the Client's expense. The Client shall be solely responsible for direct damage to their goods as well as any indirect losses.
Article 7 – Assurance
7.1. The Service Provider declares that it has taken out insurance with a company of known solvency, the nature and amount of which are in accordance with professional best practices. It undertakes to provide the Client with a certificate of insurance upon first request. The conditions of the insurance policy are deemed to be known and accepted by the consignors, the recipients, and the Client in general. Their amounts constitute compensation limits that can be invoked against the Client.
7.2. For transport services: in the event that the market value of the goods exceeds the statutory or contractual liability limits of the Service Provider, the Client may request the Service Provider to take out «ad valorem damage» insurance on their behalf, subject to acceptance by the Service Provider and upon payment of the corresponding premium, by specifying the risks to be covered and the values to be guaranteed. Insurance instructions must be renewed in writing for each transaction.
7.3. For Logistics Services: The Service Provider shall be liable for direct accidental damage for which it may be responsible, which may occur to the products entrusted by the Client. It is the Client's responsibility to inform the Service Provider in writing of the actual value of the products to be insured and to update it every month. In the event of a claim, firm-sale products will be valued at the agreed selling price, excluding VAT, less expenses saved by non-delivery. Products not sold firm will be valued at their cost price excluding VAT, at the last rate prior to the claim, including transport and storage costs.
Article 8 – Confidentiality
Throughout the duration of the Services, the Client undertakes to treat as strictly confidential, and not to disclose to third parties (unless with prior written agreement from the Service Provider), any information already received from the Service Provider, as well as any information communicated by the Service Provider during the performance of the Services, in particular technical, financial, commercial and operational information.
Article 9 – Intellectual Property
Unless otherwise stipulated, the group to which the Service Provider belongs owns all information, visuals, logos, concepts, specifications, documents, know-how, and other elements contained in the GCS and in any contractual document binding the Parties, and/or communicated to the Customer in the context of pre-contractual discussions and the performance of the Services. The Customer and/or any third party designated by the latter (consultant, auditor, etc.) is not authorised to use them without the prior written agreement of the Service Provider.
Article 10 – Force Majeure
The obligations of each Party shall be automatically suspended and their liability discharged in the event of force majeure events, meaning events which are unforeseeable and external, rendering the performance of the Services impossible. Labour disputes, strikes, pandemics or epidemics and their direct consequences, natural disasters, insurmountable constraints, and all other circumstances such as requisitioning, embargoes, lack of transport, general shortage of energy supply, employment and energy restrictions shall be considered as such. In the event of a force majeure event, the affected Party shall immediately inform the other Party. If the force majeure event persists for more than thirty (30) working days, the Parties shall meet to decide on the conditions for the continuation or termination of the Services. Any delay due to a force majeure event shall extend the performance period for the obligations of the Party affected by the event accordingly.
Article 11 – Audit
The Client may carry out audits on the Provider's business days and hours at each of the Provider's sites, provided that they have given the Provider written notification of their visit at least two (2) weeks before the date of the audit, specifying the purpose and the arrangements for carrying out the visit. All audit costs shall be borne by the Client. The implementation of the audit shall, as far as reasonably practicable, cause the least possible disruption to the Provider's operations.
Article 12 – Duration
Notwithstanding any other provision, the Parties agree that in the event of an established commercial relationship, each Party may terminate it by registered letter with acknowledgment of receipt, subject to compliance with the notice periods set out in the general terms and conditions of T.L.F (in their full version).
Article 13 – Intuitu personae
The Service Provider undertakes to perform the Services using its own means. However, it may subcontract the execution of all or part of the Services. In such cases, the Service Provider shall be solely responsible for the choice of its subcontractor. It is agreed that subsidiaries of the Service Provider's group shall not be considered as subcontractors under these T&Cs. Furthermore, the Service Provider may freely assign all or part of its rights and obligations arising from these T&Cs by any means to any other company within the MUTUAL LOGISTICS group. Likewise, it is expressly agreed that the rights and obligations hereunder shall continue in the event that the Service Provider undergoes a change of control, a contribution in kind, a merger or an acquisition, particularly by another company within the Service Provider's group.
Article 14 – Personal data
The Service Provider and its subsidiaries collect and process personal data in accordance with the European laws and regulations in force, and in particular the General Data Protection Regulation (GDPR), and the various applicable laws and regulations, such as the amended French Data Protection Act of 6 January 1978. The personal information collected by the Service Provider is recorded in its customer database and used for the proper management of its relationship with the Customer and the fulfilment of its obligations. Personal information is retained for the statutory retention period. Access to personal data is strictly limited to the Service Provider’s employees and agents authorised to process such data by virtue of their roles; such data may, where necessary, be disclosed to third parties associated with the company for the performance of subcontracted tasks required for the provision of services, without the Client’s authorisation being required. It is specified that, in the course of performing their services, third parties have only limited access to the data and must use it in accordance with the provisions of the applicable legislation on the protection of personal data. Apart from the cases set out above, the Service Provider undertakes not to sell, rent, transfer or grant access to the data to third parties without the Client’s prior consent, unless compelled to do so for a legitimate reason (legal obligation, combating fraud or abuse, exercising the right of defence, a request from a competent judicial and/or administrative authority, etc.). The Service Provider undertakes to take all necessary precautions to safeguard the security of the data provided and, in particular, to prevent it from being distorted, damaged or accessed by unauthorised third parties. The data subject has, subject to the legislation in force, the right to: – request from the Service Provider access to, rectification, erasure or portability of their personal data, – request that the Service Provider restrict the processing of their personal data, – object to the processing of their personal data, – withdraw their consent to the processing of their data at any time. They may exercise these rights by sending an email to dpo.rgpd@mutuallogistics.com, providing their full contact details (surname, first name, address, telephone number, email address) and specifying the purpose of their request. They may be asked to provide proof of their identity. Finally, they have the option to lodge a complaint with the CNIL.
Article 15 – Business Ethics – Fight Against Corruption:
The Service Provider attaches particular importance to the fight against fraud and corruption and expects all contracting parties to adhere to the same principles and to strictly comply with the regulations in force. The Client is informed that, in accordance in particular with the «Sapin II» Act of 9 December 2016 on transparency, the fight against corruption and the modernisation of economic life, the Service Provider has internal anti-corruption prevention measures in place. The Service Provider ensures that all its employees, in particular those with the authority to act on its behalf in dealings with third parties, share and apply the legal rules and internal regulations guaranteeing compliance with business ethics. In the performance of this Contract, each Party undertakes to comply with the principles and rules laid down in the applicable laws and regulations concerning conflicts of interest, competition law and the fight against corruption and influence peddling. Consequently, any breach by the Client of the obligations set out in this clause shall be deemed a material breach entitling the Service Provider to terminate the Contract automatically, without notice or compensation, subject, however, to any resulting damages to which the Service Provider may be entitled. The Client warrants that any person, whether a natural or legal person, acting on its behalf in connection with the performance of this Agreement (i) complies with all applicable regulations designed to combat corruption, (ii) does not, by act or omission, do anything that might render the Service Provider liable for non-compliance with such regulations, (iii) establishes and maintains its own policies and measures relating to ethics and the fight against corruption, (iv) shall inform the Service Provider without delay of any event of which it becomes aware and which could result in the obtaining of an undue advantage, whether financial or of any other nature, in connection with this Agreement, (v) finally, the Client undertakes to provide the Service Provider with any assistance required to respond to a request from an authorised anti-corruption authority. .
Article 16 – Governing Law and Dispute Resolution
This business relationship shall be governed and interpreted by French law. In the absence of an amicable solution reached within 30 days of the attempted resolution, the Parties hereby assign jurisdiction for any dispute or disagreement relating to the formation, execution, interpretation or termination of these presents and their consequences to the Courts of Lyon, which shall have exclusive jurisdiction to hear any proceedings, including interim measures, applications or claims for indemnity, even in the event of multiple plaintiffs or defendants.
