1. General Matters

DESIALIS is a French société par actions simplifiés, registered with the Trade and Companies Registry of Paris under number 431 232 149 and with registered offices located at 12 rue de Ponthieu 75008 PARIS, (hereafter, “the Seller”).
The sale of merchandise (hereafter, “the Merchandise”) by the Seller to the customer (hereafter “the Customer”) shall be subject to the present general terms and conditions of sale (hereafter, “the T&C”). The Merchandise are exclusively intended for animal feed.
Placing an order with the Seller implies the Customer's full and unreserved acceptance of the T&C, which constitute the sole basis of the commercial negotiations. The T&C prevail over any conditions to the contrary and in particular any general or special conditions emanating from the Customer, including any purchase conditions and order forms unless otherwise expressly agreed to by the Seller.
The T&C are an integral part of the sale contract ((to be formalized by the Seller with the Customer (hereinafter, “the Contract”), as well as of any standard contracts such as Incograin, Gafta, etc., that DESIALIS may make use of. In the event of contradiction between these documents, they shall prevail over each other in the following order of importance: the Contract, the standard contract, and the T&C.
These T&C may be modified at any time, without any obligation for the Seller to notify such modification before its implementation. The Customer shall be responsible for ensuring that he accepts the T&C within the contractually defined period. The fact that the Customer does not avail himself, at a given time, of any of the provisions of the T&C shall not be interpreted by the Customer as a waiver by the Seller of his right to avail himself of such provisions at a later date. If any of the provisions of the Contract or the T&C are or become invalid, or if one or more of the provisions is or become invalid, the validity of the remaining provisions of the Contract and the T&C shall remain unaffected.

2. Contracts

Orders are sent to the Seller's head office by telephone, fax, mail, e-mail or EDI.
If the Seller accepts the order, he sends an order confirmation to the Customer. The Customer has then twenty-four (24) working hours from receipt of the Seller's order confirmation, to cancel or request a change to his order. Otherwise, the order confirmation will be deemed accepted by the Customer and will be the Contract. The Seller shall only be bound by the Contracts. The Contracts shall specify the nature of the Merchandise, its price, payment conditions, the monthly delivery schedule, as well as the chosen Incoterms and its place of application. Unless otherwise agreed upon, Delivery Orders (i.e., “Demande d’ordre de livraison” hereafter “the DOL”) shall not be accepted unless backed by a guarantee from the Vendor’s credit insurance, or unless payment is received before the order is prepared under the conditions provided by article 5 of the T&C.
In the event of contradiction between the Contract (including the standard contract referred to in the Contract and these T&C) and any document issued by the Customer, the Contract shall prevail.
Contracts agreed to by the Seller are final. They may not be amended or cancelled by the Customer, who shall compensate the Seller for all losses or costs incurred in relation to the preparation of a DOL that is subsequently changed or cancelled by the Customer.

3.Price

The prices of the Merchandise on sale are those indicated in the Contract.
In accordance with the provisions of Article L.443-4 of the Commercial Code and the DGCCRF guidelines on taking account of "indicators" in the contractual chain of 27 July 2020, prices must be determined taking into account in particular the following indicators :

- for Luzerne :

• The market price indicator and its evolution following the quotation "La Dépêche - Le Petit Meunier" Luzerne Dehydrated ex Marne 17%, 1st hand, French market - reference spot quotation noted on the date of signature of the contract (or if not quoted, on the nearest date) on the La dépêche website, information available on request from the seller.
• The production cost indicator and its evolution according to the IPAMPA index for field crops - 3-month rolling average – last known monthly index on the date of signing the contract, available on the Terres Univia website – Inter-professional indicators under the EGALIM law.

- for beet pulp and wheat draff :

• The market price indicator and its evolution according to the EURONEXT Mill Wheat N°2 quotation – quotation on the date of signature of the contract on the same maturity as the reconciled quotation observed on the Euronext site on the date of the request.
• The production cost indicator and its evolution according to the IPAMPA index for field crops - 3-month rolling average - last known monthly index on the date of signing the contract, available on the Terres Univia website - Inter-professional indicators under the EGALIM law.

- indicators common to Luzerne, beet pulp and wheat draff :

•  For Energy : the market price indicator and its evolution according to the INSEE production price index for French industry for the French market - CPF 35.11 and 35.14 - Electricity sold to end-user companies - last known monthly index on the date of signature of the contract, available on the INSEE website.
• For Transport : the market price indicator and its evolution according to the CNR monthly average diesel fuel price index expressed as a quarterly average - last known monthly index at the date of signature of the contract, available on the CNR website – data.

4. Price renegotiation clause

Pursuant to the provisions of Article L.441-8 of the Commercial Code, the prices of the Merchandise may be renegotiated, at the request of the most diligent party, in the event of fluctuations in the price of the agricultural raw materials used in the composition of the Merchandise, as well as in the costs of energy, transport and materials used in the composition of the packaging affecting the production costs of the Merchandise. The triggering conditions and the terms of renegotiation are set out in Appendix 1 to the T&C.

5. Terms of Payment

The price of the Merchandise is, unless otherwise agreed, payable within eight (8) days of the date of dispatch of the Merchandise. No discount will be granted for early payment.
If the Seller's credit insurance does not cover the debt, payment shall nevertheless be made in cash before the date of delivery by transfer to the Seller's bank account. If this is not the case, the delivery can only be carried out up to the amount covered by the Seller's credit insurance.
Any costs incurred in connection with the payment by the Customer shall be borne by the Customer.
At the Customer's request, invoices may be sent by electronic means.
Any reservations or disputes that the Customer may have about the invoices shall not entitle the Customer to delay payment of the disputed invoice. Under no circumstances may payments due to the Seller be suspended or be subject to any reduction or compensation without the Seller's prior written agreement.
Only payment on the agreed due date is a discharge. In accordance with the provisions of Article L.441-10 of the Commercial Code, in the event of non-payment on the due date, the Customer shall be liable, by operation of law and without formal notice, for
 A late payment penalty calculated on the outstanding amounts, at a rate equal to three (3) times the legal interest rate on the due date.
 A recovery indemnity of a minimum amount of forty (40) euros. It is specified that this fixed indemnity is not limited to the amount of other expenses that may be incurred by the Seller for the purpose of collecting its invoices.
Interest shall start to accrue from the date of payment shown on the invoice and shall continue to accrue until the day of full payment of all sums due to the Seller. Any month started shall be due in full.
No payment may be offset at the sole initiative of the Customer, in particular in the event of an allegation by the Customer of a delay in delivery or non-conformity of the Merchandise delivered, the prior written agreement of the Seller being essential. Any set-off not authorized by the Seller shall be deemed to be a default in payment, which shall entitle the Seller to refuse any new order and to immediately suspend current deliveries after having informed the Customer.
In the event of delay or total or partial non-performance by the Customer of its payment obligations, the Seller may notify the Customer by registered letter with acknowledgement of receipt of the suspension of its deliveries. These provisions shall cease to have effect upon full payment of the unpaid invoices. In any event, the Seller shall be entitled not to deliver any further orders until the Customer has fully paid the amounts due in principal, costs, interest and accessories.
Any deterioration in the Customer's credit may, at any time, justify, depending on the risks incurred, the setting of a ceiling on the Customer's possible overdraft, the requirement of certain payment deadlines, cash payment of current and future orders and certain guarantees. This will be the case if a transfer, lease management, pledging or contribution of its business or some of its components, or a change in the control or structure of its company or in the person of its manager, is likely to have an unfavourable effect on the Customer's credit.

6. Delivery – Transportation - Storage

Transportation and insurance costs, as well as all custom duties, levies and taxes of any nature whatsoever shall be allocated between the Seller and the Client under the conditions defined by the last version of the Incoterms contained in the Contract. In the absence of a specific mention, the applicable Incoterm shall be FCA (2020) storage location of the Merchandise.
The monthly delivery schedule shall be indicated in the Contract.
The Seller is also fully released from his obligation to deliver in case of force majeure.
Once a DOL is issued, the Customer undertakes to honor it. Failure to honor the Delivery shall entitle the Seller to charge storage and transportation costs. In the event that the Customer does not take delivery of the Merchandise that is made available to it, it shall be required to compensate the Seller for costs resulting from the Merchandise being held.

7. Acceptance – Transfer of risk

The transfer of risk is defined by the applicable INCOTERM.
The Customer or its carrier authorized shall be responsible for checking that the Merchandise is not damaged, defective, and/or missing at the time of delivery.
The Seller must be informed of all reservations as soon as possible, by means of fax, email or telephone. Furthermore, reservations must be (i) indicated on the delivery slip and (ii) confirmed to the carrier by registered letter within three (3) days, not including bank holidays, from the date of receipt, pursuant to the provisions of Article L. 133-3 of the Commercial Code. A copy of this document must be sent by post to the Seller’s registered office within the same time-period.
Without prejudice to the measures to be taken with respect to the carrier, any complaints concerning the apparent defects (nature and quality of the Merchandise, or its lack of compliance with the delivery slip), must be addressed in writing to the Seller within eight (8) days from the date of receipt of the Merchandise, and must specify the Merchandise in question, the affected quantities and the nature of the claimed defect.

8. Warranty – Responsibility

To be admissible, any claim relating to apparent defects must be made within the time limits set forth in Article 7 "Acceptance - Transfer of Risks".
In the case of a hidden defect, the Customer shall inform the Seller by registered letter with acknowledgement of receipt within forty-eight (48) hours of the discovery of the hidden defect.
It shall be the Customer's responsibility to provide any justification as to the reality of the defects or non-conformities found and to provide the Seller with all facilities to proceed with the ascertainment of the alleged facts and, in particular, to communicate to the Seller all information relating to the nature of the defect or non-conformity, to the identification of the lots and to the traceability of the Merchandise. The Merchandise delivered shall be kept at the disposal of the Seller in accordance with the rules of conservation and hygiene and shall not be destroyed without the prior written consent of the Seller. The Customer shall take all measures to avoid aggravation of the defect or non-conformity.
Complaints do not entitle the Customer to delay payment of a sum due.
The Customer is responsible for ensuring that the Merchandise is properly stored and shipped. In particular, the Customer must protect the Merchandise from humidity. The Seller shall not be liable if the Products sold are transported, unloaded, or stored by the Customer in abnormal conditions or conditions incompatible with their nature.

The Merchandise found defective or missing shall, at Seller’s sole discretion, be promptly replaced or refunded, excluding any compensation for any other ancillary costs or any direct or indirect, punitive, material or immaterial damages.
The Seller’s liability shall be limited to the lower of the following two amounts :

• The purchase price before taxes of Merchandise delivered to the Customer in accordance with the Contract under dispute.
• The amount covered by the Seller’s insurance.

In any event, the Seller’s liability may under no circumstances be invoked for any indirect damages, or indirect damages, notably, the loss of property, revenue, profit or enjoyment.
The Seller’s liability shall under no circumstances be invoked if the Merchandise does not meet the Customer’s needs, the latter being an informed professional who must take all precautions to ensure that the Merchandise meets its needs. In particular, this applies to products meant as animal feed for animals who take part in competitions, as some of the Seller’s product ranges may not be adapted to this purpose.

 9. Retention of Title

THE TITLE TRANSFER OF THE SOLD MERCHANDISE IS SUBJET TO THE FULL PAYMENT BY THE CUSTOMER OF THE PRICE AND ANCILLARY COSTS (INCLUDING CHARGES, INTERESTS, etc.) BEFORE THE SET DEADLINE. PAYMENT SHALL BE CONSIDERED TO HAVE BEEN MADE ONLY WHEN THE PRICE IS EFFECTIVELY CASHED BY THE SELLER.
In the event that payment does not take place within the set deadline, the Seller reserves the right to repossess the Merchandise.
Merchandise shall be returned to Seller’s premises as soon as possible from the date of request by means of registered letter with acknowledgement of receipt, and at the Customer’s cost and risk. The Seller is authorized to unilaterally compile an inventory of the unpaid Merchandise. The Customer shall be liable for all costs and charges resulting from the reclaiming, inventory, and repossession of the Merchandise.
The Customer shall be liable to the Seller for depreciation at 15% (excluding taxes) of the purchase price of the reclaimed Merchandise applied to each month or portion of a month that the Merchandise is held for, from the time of delivery to the time of restitution.
In any event, the Customer shall not be entitled to resell the Merchandise it has bought before it has paid for it, unless this is previously expressly agreed upon by the Seller. In this case, the Customer shall inform the sub-purchaser of the existence of a retention of title clause, and shall inform the Seller, upon the latter’s simple request, of the name and address of the sub-purchaser, as well as of the outstanding price. If the Merchandise subject to retention of title have been resold by the Customer, the Seller's claim shall automatically be transferred to the claim for the price of the Merchandise so sold by the Customer. The Customer hereby assigns to the Seller any claims arising from the resale of the Merchandise subject to retention of title.
In the event of the Customer's bankruptcy, receivership or liquidation proceedings, the Merchandise or the price claim may be reclaimed in accordance with the legal and/or regulatory provisions in force.
In the event of partial or total non-payment, the Merchandise in stock shall be deemed to correspond to the unpaid claims. In accordance with Articles L.624-9 and L.624-16 of the Commercial Code, notwithstanding any clause to the contrary, this retention of title clause shall be enforceable against the Customer.
The Seller is hereby authorized by the Customer, who accepts it, to sequester the unpaid Merchandise held by it. Any deposits previously paid shall be retained in full by the Seller as a penalty clause.
The Customer shall thus be held solely responsible for all risks of deterioration, loss, partial or total destruction, whatever the cause of the damage, even if it is a case of force majeure. The Customer shall therefore ensure the Merchandise subject to retention of title, shall stipulate in the insurance policy that any compensation shall be paid directly to the Seller and shall provide the Seller, at his first request, with any evidence of the insurance thus taken out.
The Customer undertakes to inform any third party, in particular in the event of seizure, of the fact that the Merchandise subject to retention of title belong to the Seller, and to inform the Seller immediately of any seizure or similar operation.

10. Merchandise Returns

Merchandise may only be returned if the Seller has given his prior express consent and by means of a carrier chosen by the Seller.
The Seller shall be entitled to refuse all Merchandise that is returned without its consent. Even if the Seller accepts the returned Merchandise, this shall not result in the Merchandise being replaced, or in a credit note being issued and the Merchandise shall travel at the Customer’s expenses and risks.
The Customer must, in any event, comply with the protocol provided to it by the Seller concerning the return or certified destruction of Merchandise.

11.Force Majeure

The following cases (without this list being limitative) shall be considered as cases of force majeure as defined in the standard contract and, by application of Article 1218 of the Civil Code:

• war (declared or undeclared), civil war, riot, and revolution, acts of piracy,
• sabotage, requisition, confiscation, nationalization, embargo, and expropriation,
•  natural disaster such as violent storm, cyclone, earthquake, tidal wave, flood, destruction by lightning,
• epidemic or pandemic, i.e., the development and spread of a contagious disease on national or international territory, including epizootic disease
• measures taken by the competent authorities, in France or abroad, to limit the spread of an epidemic or pandemic in the context of a declaration of a state of health emergency in the event of a health disaster which, by its nature and seriousness, endangers the health of the population, in particular by application of Articles L.3131-12 et seq. of the Public Health Code, in the context of a serious health threat (Articles L.3131-1 et seq. of the Public Health Code) or outside of any declaration of a state of health emergency, such as, in particular, measures to prohibit and/or restrict movement of people and vehicles, confine towns or certain towns, temporarily close one or more categories of establishments open to the public (businesses, shops, etc.), regulate the conditions of access and presence of one or more categories of establishments open to the public, etc. ,
• accident, in particular of tools, machine breakdown, explosion, fire, destruction of machines, plants and installations of any kind,
•  interruption or delay in transport, failure of any carrier whatsoever, impossibility of being supplied for any reason whatsoever
• shortage of raw materials, quality defect or poor quality of raw materials, administrative measures limiting the use of raw materials
• interruption of energy supply, failure of an energy supplier, impossibility of being supplied for any reason whatsoever
• boycotts, strikes and lockouts in any form, work-to-rule, occupation of factories and premises, work stoppages occurring in the Seller's companies
• infection of the computer system by a virus, cyber-attack on the Seller's computer servers,
• act of authority, whether lawful or unlawful, arbitrary, or not.

12. Penalty

Any penalty must be proportionate to the damage suffered in respect of a contractual breach. Therefore, the Seller refuses the systematic and arbitrary application of penalties predetermined by the Customer which, by their nature, are not proportionate to the prejudice possibly suffered by the latter, notwithstanding any clauses or provisions to the contrary which may appear in the conditions of purchase, or any other document issued by the Customer. In any event, no penalty for non-performance by the Seller of its contractual obligations may be charged to the Seller if :
(i) The Customer has not provided proof of the contractual breach.
(ii) The Customer has not proved the existence of a loss.
(iii) The penalty has not been subject to a contradictory analysis procedure prior to any penalty invoice being sent, including a sufficient period of time to enable the Seller to analyze the nature of the incident claimed and the nature of the loss suffered.
Any request for penalties must be sent to the Seller within a maximum period of two (2) months from the date of the occurrence of the event. The Customer shall provide the Seller with all documents allowing for a contradictory analysis of the alleged breach and attesting to the damage actually suffered. The Seller shall have a period of thirty (30) days to analyze the documents sent and to inform the Customer of its agreement or disagreement on the alleged breach and the amount of compensation claimed.
It is forbidden to automatically deduct from the amount of the invoice drawn up by the Seller the penalties or discounts corresponding to non-compliance with a contractual commitment. Thus, any automatic debit, in any form whatsoever, on the part of the Customer in violation of these provisions shall be deemed to be a payment incident authorizing the Seller to refuse any new order and to stop deliveries corresponding to orders in progress.
The Seller shall not be liable for any penalties of any kind whatsoever in the event of force majeure, but also in the event of circumstances external to the Seller which, although not fulfilling the conditions of force majeure, would disrupt the deliveries that it must honour with regard to the Customer, such as, in particular, but without this list being limitative the failure of one or more suppliers of raw materials, blockages of storage warehouses or transport routes, a proven shortage of raw materials, a climatic hazard of exceptional magnitude or a health crisis linked to the development and spread of a contagious disease of any kind whatsoever and its direct and indirect consequences, in particular the measures taken to contain the spread of the disease.

13. Confidentiality

The Seller and the Customer acknowledge that they may, in the course of their business relationship, be entrusted with confidential information of a technical, commercial, marketing or financial nature or relating to elements to which intellectual property rights are attached. However, this list is not exhaustive. This information shall not, in any way, be disclosed to third parties. The Seller and the Customer guarantee the confidentiality of all information, of whatever nature, written or oral, of which they become aware in the course of their commercial relations and shall refrain from communicating it to persons other than those who are entitled to know it under the terms of the contract, under penalty of having to compensate for the damage suffered.

14. Personal Data

The Seller and the Customer undertake, in the context of the collection and processing of personal data, to comply with the provisions of Law No. 78-17 of 6 January 1978 on information technology, files and freedoms, as amended, as well as the provisions of Regulation 2016/679/EU of 27 April 2016 (RGPD).
The Seller, the data controller, implements the processing of personal data for the management of its relations with its customers, including the Customer, as well as for the performance of the sales contracts concluded with the latter, the legal basis for the processing being the performance of the existing contractual or pre-contractual relationship between the Seller and the Customer and, where applicable, the compliance with a legal obligation. Personal data may also be processed for statistical and canvassing purposes on the legal basis of the Seller's legitimate interest.
The information collected (e.g., surnames, first names, e-mail addresses and telephone numbers of the Customer's employees and collaborators) is essential for this processing and is intended for the relevant departments of the Seller. They are kept for the entire duration of the business relationship and ten (10) years after the end of the relationship.
The Seller shall take all necessary and reasonable technical and organizational measures to guarantee a high level of security for the data processed and to ensure the protection of such data against accidental or unlawful destruction, accidental loss, alteration, distribution or unauthorized access and any other form of unlawful processing.
Access to personal data is strictly limited to the Seller's employees who are authorized to process them by virtue of their duties and who are subject to a strict obligation of confidentiality.
The data collected may be communicated to the Seller's subcontractors when this is necessary for the performance of the services requested by the Customer. The Seller shall ensure that, in the context of the performance of their services, its subcontractors use the Customer's personal data in compliance with the applicable legislation on the protection of personal data. In addition, the Seller may be required to disclose the Customer's personal data by virtue of a legal obligation or for the purposes of dispute resolution.
Employees and collaborators of the Customer have the right to access, rectify and delete their personal data, the right to withdraw their consent, the right to limit processing, the right to object to the processing of data on legitimate grounds, the right to data portability, the right to issue advance post-mortem directives, by sending an e-mail to the Seller at dpo@desialis.fr together with a copy of their identity card. They also have the right to lodge a complaint with the CNIL.
The Customer undertakes to inform its employees and collaborators whose personal data may be transmitted to the Seller of the content of this article so that they can exercise their rights.

15. Applicable law - Jurisdiction

All contractual relations between the Seller and the Customer arising from the application of these T&C, and any special agreements that may be concluded, as well as all disputes arising therefrom, whatever their nature, shall be subject in all respects to French law.
In the event of a dispute or conflict, the Parties shall attempt to reach an amicable settlement.
Should the Parties fail to arrive at an amicable settlement, all disputes and conflicts arising from the performance of the contractual relationship between the Seller and the Customer, including the termination thereof, shall be submitted to the exclusive jurisdiction of the jurisdiction referred to in the standard contract or, failing that, to the International Arbitration Chamber of Paris (6, avenue Pierre 1er de Serbie - 75016 Paris, France), which shall meet and rule in accordance with its Arbitration Rules, which the Customer declares that he is familiar with and accepts in the edition in force on the date of the request for arbitration.
Any claim or commercial dispute on the part of the Customer relating to the whole of the commercial relationship with the Seller must be formulated at the latest by the end of the calendar year n+1. Failing this, and by express derogation from the provisions of Article L.110 4 of the Commercial Code, no claim or dispute may be submitted and shall therefore be considered as time-barred and therefore inadmissible.

Appendix 1
Price renegotiation clause (Art. L.441-8 C. )

In accordance with Article L.441-8 of the Commercial Code, in the event of fluctuations in the price of agricultural raw materials as well as in the costs of energy, transport or materials used in the composition of packaging, which significantly affect the production price of the Merchandise, the parties shall come together to renegotiate the price of the Merchandise, in accordance with the terms and conditions set out below.

The conditions for triggering this renegotiation clause linked to fluctuations in agricultural commodity prices are as follows :

The conditions for triggering this renegotiation clause related to fluctuations in energy or transport costs are as follows :

Terms of renegotiation:

The initiative of the renegotiation will be taken by either party who will inform the other by sending a registered letter with acknowledgement of receipt. The request must be accompanied by the elements justifying the triggering of the renegotiation clause.
The parties shall then negotiate within a maximum of one (1) month from receipt of the registered letter. This negotiation shall be carried out in good faith and in compliance with industrial and commercial secrecy and business secrecy.
A report of the negotiations in accordance with the provisions of article D.441-4 of the Commercial Code shall be drawn up.
If the parties reach an agreement at the end of the renegotiation, the new agreed price will be the subject of an amendment. It will be implemented within a maximum of one (1) month after the date of the agreement.
If no agreement is reached within one (1) month of receipt of the notification bringing the renegotiation clause into play, the contractual relationship shall continue under the conditions set forth in the Contract, it being specified, however, that either Party may, if it so wishes, refer the matter to the mediator for agricultural trade relations.
This clause shall not prevent any other renegotiation during the performance of the Contract.