General sales conditions
This document is an unofficial translation for the convenience of English-speaking readers. In the event of any discrepancy or ambiguity,
the French version of the Conditions Générales de Vente et Prestations de Services shall prevail
GENERAL SALES CONDITIONS & PROVIDION OF SERVICES – TRANSIT FRUITS
Article 1 – PURPOSE AND SCOPE
These General Sales Conditions and Provision of Services (hereafter “General Condition”) shall apply between Transit Fruits SAS (hereinafter referred as “Transit Fruits”) and the instructing party (designed as the party ordering a service to Transit Fruits).The purpose of these terms is to set forth the terms of performance by Transit Fruits, acting as Transport and/or Logistics Operator in any capacity, services and activities pertaining to the physical movement of shipments and/or to the management of cargo flows , whether packed or not, of all kinds, of all origins, to all destinations, as well as warehousing operations of the cargo.
The Transport and/or Logistics Operator shall be defined as the party (freight forwarder, agent, logistic operator or intermediary) arranging conclusion of contract of transport with carrier and/or logistical operators to which full or part of the operations performance is entrusted, unless such operations are not performed by the Transport and/or Logistics Operator itself.
The freight forwarder also called transport organizer designs services provider arranging and ensuring, under its own liability and in its name, the instructed service execution performed by through transportation ways and means of its choice on instructing party’s behalf.
The Customs broker shall mean the party completing Customs formalities in the name of instructing party and on this last’s behalf (direct representation) or in it’s name and on instructing party’s behalf (indirect representation), and shall intervene when any issue related to such activity arises.
Warehousing operations refer to all operations and activities pertaining to the warehousing, guarding, handling of the cargo, management of the cargo flow (packed or not)
Any undertaking or transaction with Transit Fruits constitutes unreserved acceptance by the instructing party of the terms set forth below.
The services, the methods of their execution, their price, the nature and volume of the products/cargo subject to the services shall be defined in the commercial proposal agreed between Transit Fruits and the instructing party. The said commercial proposal shall constitute special conditions to the present General Conditions.
No specific term or other general term of the instructing party shall prevail over these terms, unless as otherwise formally accepted by Transit Fruits.
The fact that Transit Fruits do not raise a provision of the present General Conditions at a given moment shall in no case whatsoever constitute a waiver of the said provision.
Article 2 – PRICE OF THE SERVICES
Prices are calculated on the basis of the information provided by the instructing party, considering, inter alia, the services to be provided, the nature, the weight, and the volume of the goods to be warehoused/stored, carried and routes to be used. Commercial proposal are prepared based on currency rates at the time when the said commercial proposals are given. They are also based on the terms and prices of substituted parties and on applicable laws, regulations and international conventions in effect.
Should the existing situation or one or more of the above basic elements be modified after the commercial proposal is provided (i) either in case of significant variation of charges of Transit fruits beyond its control , including those incurred by substituted parties of Transit Fruits, in a way that could be invoked against the latter, and on the basis of the evidence provided by the latter, (ii) either in case of modification of the contract which is not attributed to Transit Fruits and which will engage extra expenses and conditions, and/or making the execution excessively expensive and/or prejudicial, prices given initially shall be changed on the same terms. The same shall apply in the event of a Transit Fruits uncontrolled and unforeseen event, whatever it may be, leading to a change in any part of the service.
Prices do not include duties, taxes, fees and taxation owed in pursuance of any tax or customs or other regulations (such as excise, entry duties, etc.).
Article 3 – GOODS INSURANCE
No insurance is taken out by Transit Fruits without a written and repeated order by the instructing party for each shipment, indicating risks to be covered and values to be insured.
If such an order is given, Transit Fruits, acting on behalf of the instructing party and at this last’s costs, shall take out insurance with an insurance company that is creditworthy at the time of coverage. Failing specific indicators, only ordinary risks (apart from war and strike risks) shall be covered.
As it acts, in this specific case, as an agent, Transit Fruits shall not be considered as an insurer. The terms of the policy are deemed known and approved by the senders and the consignees, who shall bear the cost thereof. An insurance certificate shall be issued, on request. Insurance instructions must be renewed in writing for each transaction.
Article 4 – PERFORMANCE OF THE SERVICES
During the performance of the services, Transit Fruits will only be the keeper of the cargo, and in no circumstances will be considered as the owner of the cargo.
Departure and arrival dates possibly provided by Transit Fruits are indicative only unless a specific date of realizatioin is agreed between Transit Fruits and instructing party. The instructing party shall give, in due time, all necessary and accurate instructions to Transit Fruits for the performance of the transport services and of related services and/or logistics services. It is not within Transit Fruits duty to check the documents (commercial invoice, packing note, etc.) provided by the instructing party.
All delivery-specific instructions shall be mentioned in a written and repeated order for each shipment and formally accepted by the Transit Fruits.
In any case, such an instruction constitutes an accessory of the main service ordered.
Any instructing party ordering storage and warehousing services from Transit Fruits must declare the exact nature of the goods entrusted to Transit Fruits in writing at the start of storage. Transit Fruits reserves the right to refuse goods whose packaging or conditioning, or condition would appear to be defective and/or present risks for the buildings or other goods stored. In all cases Transit Fruits is responsible for the conservation of the goods entrusted to it within the limits of Article 7.
Article 5 – INSTRUCTIONS
The Instructing Party shall, under its sole liability, provide Transit Fruits with clear and proper instructions related to cargo concerning preservation, warehousing, stowage, transport and delivery (in particular regarding temperature and ventilation). Failing that the instructing party shall bear all consequences of any inadequate, uncompleted or late instructions.
Transit Fruits shall comply with instructions given by its client instructing party.
When shipments are carried out under controlled temperature, the instructing party must pull down or increase the cargo temperature to comply with temperature requested and transport instructions. Should the instructed party fail to comply with this obligation, any shipment will travel at its sole risks strictly without prejudice to Transit Fruits.
Transit Fruits shall not be hold liable of any consequences resulting from sensitive or perishable cargo quality defects when made available by Instructing Party .
Article 6 – INSTRUCTING PARTY’S OBLIGATIONS AND LIABILITIES
The goods should be packed, pre-cooled when perishable cargo to be carried under controlled temperature is concerned, packaged, marked or countermarked so as to withstand transport and / or storage and/or warehousing operations performed in normal conditions, as well as successive handling, which necessarily occur during the sequence of such operations. They should not constitute a hazard to driving or handling personnel, the environment, transport vehicle safety, other carried or stored goods, vehicles or third parties.
The instructing party shall be solely responsible for packaging and for its fitness to bear the transport and handling.
Should the instructing party entrust Transit Fruits with goods in breach of the above provisions, more particularly in case of loading food products in bulk, including in nets/mesh, inside the container and directly on the floor, said instructing party shall be solely responsible, with no claim against Transit Fruits for any damage they may cause.
6.2 – Labelling
On each parcel, item or load support, clear labelling should be provided to allow immediate and clear identification of the sender, of the consignee, of the place of delivery and of the nature of the goods. The statements on the labels should match those shown on the shipping document.
Parcel shall mean an item or set of material made up of several items, whatever the weight, size and volume thereof, making up a unit load upon delivery for transport (bin, cage, crate, coller carton container, envelope, burden, drum, paquet, circled or film-wrapped pallet, roll, bag, suitcase, etc.), packed by the sender before pick-up event if the contents are detailed in the transport document.
6.3 – Sealing
Full trucks, semi-trailers, mobiles crates, containers, after the loading operations are completed, can be sealed by the loader himself or its representative. The trucker must check the procedure before leaving.
6.4 – Declaratory obligations
The instructing party shall be responsible for all consequences of any lack, unsufficiency or defectiveness related to packing, packaging, labelling or marking, legal and statutory documentation. The instructing party shall bear all consequences resulting from any breach of duty to inform and declare the released cargo exact nature, value (if declared) and particularities. These provisions particularly concern the dangerous and sensitive goods
In addition, the instructing party formally commit not to provide Transit Fruits with illegal or prohibited goods (for instance polluted products, wastes, narcotics, etc…).
As such, before any engine and/or mechanical spare part consignment the instructing party must provide Transit Fruits with a certificate of decontamination. The instructing party shall bear alone any consequences of erroneous, incomplete, unenforceable or belated declarations
6.5 – Reserves
In the event of any loss or damage sustained by the goods, or of any delay, the instructing party is responsible for making proper and adequate inspections, expressing motivated reserves and, generally, carrying out any action useful for the protection of claims and for confirming said reserves in legal forms and timeframes, failing which no claim may be exercised against Transit Fruits or its substitutes.
6.6 – Refusal or failure by the consignee
In the event the goods are refused by the consignee, and in the event of the latter’s failure for any reason, all initial and additional costs owed and incurred in connection with the goods shall be borne by the instructing party.
6.7 Sorting – Destruction
Transit Fruits will regularly report on the quality of the goods entrusted and their development. Transit Fruits will not take the initiative to sort or throw away the goods entrusted. The instructing party shall inform Transit Fruits in writing of the appropriate action to be taken. These operations will be invoiced. In the absence of instructions from the instructing party within a reasonable period of time (depending on the product and its nature/sensitivity), the products may be destroyed by Transit Fruits at the expense of the instructing party, in which case Transit Fruits shall be released from all responsibility for the condition of the product and the administrative consequences which may result from this.
6.8. Customs formalities:
If customs transactions are to be completed by Transit Fruits, the instructing party shall hold harmless Transit Fruits, in its capacity as Customs broker, against any financial consequences arising from erroneous instructions, unusable documents, etc… generally leading to the payment of additional duties and / or taxes, fines, etc. to the respective public authorities.
The accredited customs broker “commissionnaire en douane agréé” clears in direct representation mode, in accordance with article 5 of the Community Customs.
Article 7 – TRANSIT FRUITS LIABILITY
7.1 – Liability for substituted parties’ actions
Transit Fruits liability is limited to the liability incurred by the substitutes parties in the framework of the transaction entrusted to it. When the compensation limitations of intermediaries or substitutes parties are unknown or do not result from compulsory or legal provisions, they shall be deemed equal to Transit Fruits’ ones. The freight forwarder shall not be held liable for actions executed by intermediary freight forwarders or substituted imposed by the instructing party or public authorities.
7.2 – Personal liability
7.2.1 – Losses and damages to goods
For loss and damage to goods resulting from the service carried by Transit Fruits (notably during the transport) and for any or all consequences that might result therefrom, the liability of Transit Fruits is strictly limited to the sum of € 2,50 per kilo (gross weight) of damaged or missing cargo with a maximum of € 20 000 per shipment, and in no case will exceed the value of the missing or damaged cargo.
Shipment shall mean the quantity of goods, packages and load support effectively provided, at the same time, whose displacement is requested by one single instructing party towards one single consignee from a single place of loading to a single place of unloading and reproduced in one single document.
7.2.2 – Delay
Transit Fruits shall not be held liable of any consequence resulting from any delay unless delivery delays are not only provided in writing by the instructing party but expressly accepted by Transit Fruits.
The compensation owed by Transit Fruits for any delay should its personal liability apply shall be strictly limited to the price of the service in the execution of which a delay arise (exclusive of duties, taxes and miscellaneous costs). Such compensation shall not exceed the compensation that is owed in the event of goods damage or loss.
7.3 – Warehousing
For all direct material damage and loss to cargo attributable to the storage/warehousing services, as well as attributable to all services relating to warehousing (including but not limited to approval, labelling, sorting, etc.), provided by Transit Fruits and for all material consequences directly resulting therefrom, the liability of Transit Fruits shall be strictly limited to the amount of the service provided by Transit Fruits.
Article 8 – PAYMENT TERMS
8.1 – Payment definition
The payment is deemed effected not before actual receipt of the full price invoiced by Transit Fruits.
8.2 – Payment term or due date
Services shall be paid immediately and in full upon receipt of the invoice, without discount, at the place where the invoice was issued. The instructing party shall guarantee their payment.
8.3 – Payment delay and/or default
In case of payment delay by the instructing party, penalties will inflate the VAT inclusive price in all cases where the due sums remain unpaid at the due date as specified above (Article 8.2). Penalties are calculated on the basis of the European Central Bank’s rate applied to its most recent refinancing on the due date, increased by 10 percentage points.
Such penalties fees shall accrue from the date after the maturity until full satisfaction of the price and shall be automatically vested in Transit Fruits as of right, without any preliminary notice or formalities, without prejudice to any other remedy at law which Transit Fruits may be entitled to enforce on the Instructing Party.
In addition, in case of delayed payment, not only Transit Fruits can refuse any new purchase order, but it can also suspend all orders in progress.
8.4 – Indemnity for recovery costs
Notwithstanding the foregoing provisions, any outstanding and unpaid sums on the due dates appearing on the invoices shall entail the payment of a forty (40) Euros compensation for recovery costs. Such compensation shall be automatically and as of right due and payable to Transit Fruits against each overdue invoice without prior formality or formal notice.
In case of legal proceedings, the amount of the foregoing compensation shall not prevent Transit Fruits from claiming extra relief for proven extra expenses.
Under no circumstance shall the instructing party be allowed to dispute an invoice through a litigation strategy of whatever kind in order to delay, reduce or set-off the payment or any part thereof.
8.5 – Security for payment
In case of deterioration of a customer’s credit rating, Transit Fruits shall be entitled to require security for payment or payment cash on the line. According to the risks, Transit Fruits reserves its right to demand specific payment terms or securities to be tendered when placing the order, including in case of prior payment difficulties, exceptional purchase orders or over-exposure.
Article 9 – CONTRACTUAL POSSESSORY LIEN
Whatever the capacity in which Transit Fruits acts, the instructing party formally acknowledges its contractual surety right including a possessory lien and general preferential right on all the goods, valuables and documents held by the carriage operator, to guarantee all claims debts (invoice, interests, incurred costs, etc.) that Transit Fruits has against it, even those previous or foreign to the transactions completed with the goods, valuables and documents effective held by it.
ARTICLE 10 – FORCE MAJEURE – SAFEGUARD
An event of force majeure is defined as any event beyond the control of the parties, which could not reasonably be foreseen at the time of the conclusion of the contract and whose effects cannot be avoided by appropriate measures and which would prevent, or render abnormally unbalanced, the performance of the obligation by the debtor and result in the suspension of the contract.
The party affected by the force majeure will inform the other party immediately by registered letter with acknowledgement of receipt within twenty-four (24) hours. The Parties shall contact each other with a view to implementing the most appropriate means at the most appropriate time to ensure the normal resumption, as quickly as possible, of the performance of this contract.
If the circumstances which oblige one of the Parties to suspend the execution of the contract continue for more than 60 days, either Party may request the termination of the contract, 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 denouncing the said contract.
Article 11 – TIME BAR AND EXTENTION OF RIGHT
All claims arising from the contract entered into by the parties shall be time barred within one year after the performance of the disputed service of the said contract.
Article 12 – CANCELLATION – INVALIDITY
Should any of the provisions of these General Terms of Sale be found invalid or cancelled, all other provisions shall remain in full force and effect.
Article 13 – GOVERNING LAW AND JURISDICTION CLAUSE
Any or all disputes or lawsuits relating to the operations performed by Transit Fruits shall be governed by French law and shall fall within the exclusive jurisdiction of the Commercial Court of Marseille, even in the case of multiple defendants or third party actions.