1. GENERAL COMMENTS

These General Terms and Conditions of Sale (hereinafter the “GTCS”) govern the sale and delivery of the goods (hereinafter the “Products”) sold by LABORATOIRES PHODÉ SAS (hereinafter “the Seller”) to any buyer (hereinafter the “Customer”) whether established in France or European Union.
The GTCS are systematically given to each Customer with, on one part, confirmation of the order and on the other part, the invoice. The GTCS are deemed to have been accepted by the Customer if the latter has not expressly objected in writing within seven (7) days of the order confirmation issued by the Seller.
No waiver of any of the provisions of these GTCS shall be deemed, or will constitute, a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party to be bound thereby.

     2. ORDERS

The Seller is only bound by orders taken by its representatives or employees, upon the written confirmation of the said orders. The Seller reserves the right to cancel/refuse an order at its sole discretion.

     3. PRODUCTS’ EVOLUTION

Following an order by the Customer, the Seller reserves the right to unilaterally modify the characteristics of the Products, due to technical developments on one hand and to compliance with the applicable legal and regulatory provisions on the other hand; without giving rise to any right to compensation.
In this case, the Customer shall not refuse the modification of the Products. However, in the event of a technical development affecting the ordered Products, the Seller undertakes to notify in advance the Customer, in accordance with the regulatory provisions.

     4. PRICE

The prices of the Products will be indicated by the Seller to the Customer. The Products’ prices are net; excluding discounts, taxes, delivery costs, insurance costs and are established on the basis of the prices in force at the date of the order’s receipt. Unless otherwise agreed, prices do not include accessory costs, nor specific packaging costs. All taxes, duties, or other payable charges pursuant to applicable laws and regulations shall be borne by the Customer. In the event that these charges have been paid by the Seller on behalf of the Customer, the Customer shall fully reimburse the Seller.

     5. PRICE REVIEW

The Seller reserves the right to unilaterally revise the prices of the Products, in particular in the event of an increase in the cost of raw and/or auxiliary materials as well as energy. The Seller shall inform the Customer of such price revisions within a reasonable period (period of not less than thirty (30) days), it being understood that the prices are otherwise revised annually and are communicated to the Customer on his request and, at the latest, at the time of order confirmation.

     6. INVOICING AND PAYMENT

Invoices are denominated in euros and payable to the Seller within thirty (30) days from the date of the invoice. Any additional fees related to the payment will be paid by the Customer. For any payment, only bank transfers are accepted by the Seller.
The terms of payment may change depending on the regularity of payments and the financial situation of the Customer, in particular in the event of insolvency, poor financial rating (COFACE) or history of late payment by the Customer. In this case, the Seller may request cash payment for any order placed by the Customer.

In accordance with Article L.441-16 of the French Commercial Code, any late payment automatically entails, as a late payment penalty, interest equal to three (3) times the legal interest rate in force from the day following the payment date appearing on the invoice as well as the payment of the fixed indemnity for recovery costs amounting to forty (40) euros. Late payment penalties due to the Seller by the Customer are due without the need of a reminder.
In the event of late payment of any order, the Seller reserves the right to postpone the delivery of any other order until achievement of full payment of the unpaid Products.
Any claim relating to an invoice must be notified in writing to the Seller within eight (8) days of the date the invoice was issued. After this delay, the Customer is deemed to have accepted the invoice.

     7. DELIVERY AND TRANSPORT

Any delivery time indicated on an invoice is indicative and the Seller will not be held liable. A delivery can be made in whole or in part if the Seller is obliged to do so. A delay in the delivery of Products and/or partial delivery does not release the Customer from its obligation to accept the delivery and to pay the invoice relating to the delivered Products.

     8. TRANSFER OF RISKS

The transfer of risk related to the Products to the Customer will be carried out in consideration of the INCOTERM “FCA Terssac” (Laboratoires Phodé’s warehouse, ZI Albipôle 8 avenue de la Martelle 81150 TERSSAC, France), in accordance with the INCOTERMS CCI 2020. For each order, the Products will be made available to the Customer on a date indicated to the Customer in advance by the Seller. In the event that the Customer does not collect the Products by this date, any costs resulting from the immobilization of the Products will be borne by the Customer.
The transfer of risk begins to run from the date of availability of the Products at Laboratoires Phodé’s warehouse (81150 France). Therefore, the Customer bears all risks and assumes responsibility for the transport and associated costs from the time of availability to the final destination of the Products.
Products whose delivery is postponed or pending payment, as well as Products whose delivery is refused.

     9. RECEPTION AND CLAIM

Upon receipt of the Products by the Customer, the Customer must check their condition to ensure that the Products delivered meet all contractual and compliance requirements.
Damage, loss or delay must be mentioned on the delivery note. In addition, in accordance with Article L.133-3 of the French Commercial Code, any reservation must be confirmed to the carrier by registered letter within three (3) days of delivery, after which no claim will be accepted. In this case, it is the Customer’s responsibility to take all precautions and to exercise any recourse against the carrier, which is solely responsible for both the damage suffered by the Products during transport and the damage that may result directly or indirectly from it.
Where applicable, claims relating to defects must be notified in writing to the Seller no later than four (4) days from the date of delivery. It is provided that the use and/or processing of the Products constitutes a waiver of any claim against the Seller in respect of such Products.
In the absence of a reservation notified by the Customer to the Seller according to the above-mentioned conditions, the delivery is deemed to have been made and the Products compliant.

     10. GUARANTEES

The Seller is only bound by the aforementioned guarantee of proper delivery and compliance of the Products, to the exclusion of any other warranty.
No return will be accepted without the express prior consent of the Seller. However, the Seller may, at its own decision, proceed with the replacement of the Products (at no additional cost to the Customer) or the total refund of the amount of the related invoice.

However, any Seller’s warranty shall not apply in the event that the Customer fails to comply with:

• the recommendations for use made by the Seller, or,
• optimal storage conditions for the Products; in any dry place, at suitable and constant temperature and not permitting any source of contamination of the said Products, or,
• the Products’ shelf life.

     11. LIABILITY

The Seller shall not be liable towards the Customer, or any other person, for any type of indirect, special, incidental or punitive damages resulting in particular from; loss of goodwill, loss of turnover and/or profits or loss of image.
The Seller and its subsidiaries shall not be held liable towards the Customer, in particular because of:

• failure by the Customer to comply with applicable laws and regulations,
• conditions of sale, marketing, distribution, promotion, storage, handling of the Products by the Customer or its subsidiaries or its own distributors,
• wrongful acts or omissions of the Customer, its suppliers, distributors or subcontractors,
• any allegation made by the Customer on any support or any promotional material related to the Products or any finished product made from the Products.

     12. RETENTION OF TITLE

The transfer of ownership of the Products will only take place upon full payment; principal and ancillary costs.
The Customer shall insure the delivered Products at his own expense against any risk of deterioration, destruction or disappearance such as notably theft, fire, water damage for the period up to full payment of the Products.
In the event of seizure or any other intervention by a third party on the Products, the Customer must imperatively inform the Seller without delay in order to allow the Seller to oppose and preserve its rights. In addition, the Customer shall also refrain from pledging or assigning the Seller’s Products as a guarantee.
If the Customer were to pledge Products belonging to the Seller as a guarantee, the Seller would reserve the right to collect the existing Products from the Customer, all sums due then becoming immediately due by operation of law and without formality.
In any case, the Customer must inform the Seller if the Customer is the subject of insolvency proceedings, by registered letter with acknowledgment of receipt within fifteen (15) days of the pronouncement of the opening judgment, in order to allow the Seller to claim the Products found in kind among the Customer’s assets. To this end, the Customer shall ensure that the identification of the Products is always possible on its premises.

     13. INTELLECTUAL PROPERTY

The Customer is reminded that the name “LABORATOIRES PHODÉ” and “PHODÉ” as well as the associated logo are registered as trademarks by the Seller.
It is strictly forbidden for the Customer to register, exploit or reproduce any trademark, model or design exploited and/or registered by the Seller, in any capacity and on any medium whatsoever without the prior written consent of the Seller.
It is strictly forbidden for the Customer to counterfeit and/or reverse engineer the Products in any way whatsoever.

     14. CONFIDENTIALITY

The Customer shall refrain from disclosing any technical, commercial, financial or any other information obtained in the context of the contractual relationship with the Seller.
As such, the Customer shall take all necessary precautions to prevent the prohibited disclosure or use of the Seller’s confidential information or trade secrets in particular by their employees, subcontractors, services providers or customers.

     15. TERMINATION

In the event of non-payment, fifteen (15) days after the sending of an unsuccessful payment reminder, the sale may be cancelled by operation of law by the Seller and the delivered Products must be returned to the Seller notwithstanding any possible recourse by the Seller due to notably any damage that may have been sustained. Deliveries in progress may be suspended at the initiative of the Seller, without this constituting a right to compensation for the Customer.

     16. FORCE MAJEURE

The Seller or the Customer cannot be held responsible for the non-performance of its obligations as a result of the occurrence of an event constituting a case of force majeure, with the exception of payment obligations. In addition to the cases recognized by case law, the following events are considered to be cases of force majeure: strike, war, attack, global pandemic, lock-out, act of the Prince, partial or total shutdown of supplying source of raw materials and/or energy.
The party affected by such event shall notify the other party by registered letter with acknowledgement of receipt within fifteen (15) days of the occurrence of the event of force majeure. Consequently, these GTCS will be suspended for the duration of the force majeure event. In the event that the GTCS are suspended for more than ninety (90) days, then either party shall have the right to terminate the sale without any compensation being paid to the other party. This termination will be notified by operation of law and without any other formality than the sending of a registered letter with acknowledgment of Receipt.

     17. INUITU PERSONAE

In the event of a dissolution or modification of the Customer’s company, notably assignment of the Customer’s company, or any other hypothesis that may affect the Customer’s solvency, the sale and/or delivery of the Products may be cancelled by the Seller without delay.

     18. PRIVACY POLICY (GDPR)

Regarding the use of certain personal data of the Customer, which are necessary for the processing of orders and the management of commercial relations, by placing an order, the Customer gives his tacit consent to the processing of the personal data that he discloses to the Seller. These personal data are kept in a file provided for this purpose for which the Seller has put in place technical and organizational measures to ensure the protection of the said data under its control.
In accordance with the applicable laws and regulations, namely Law No. 78-17 of January 6, 1978, relating to data processing, files and freedoms, as amended by Law No. 2004-801 of August 6, 2004 and European Regulation No. 2016-679, it is understood that the Customer has a right of access, rectification, deletion, restriction of processing, objection, opposition and portability of his personal data, which has been collected by the Seller in order to process the order and manage the commercial relationship.
The exercise of these rights may be carried out by sending a request to the Data Controller at the following email address (dpo@phode.fr) and attaching a valid proof of identity.

     19.  MISCELLANEOUS PROVISIONS

It is provided that any failure or delay in exercising, for any party, a right under these GTCS will not constitute a waiver of that right.
If any GTCS’ provision is found to be illegal, invalid or unenforceable in whole or in part, the validity of the remaining GTCS’ provisions shall not be affected.

     20. GOVERNING LAW

These GTCS are governed by French law.
In the event of any dispute or claim arising from the interpretation or execution of these GTCS, the parties will use their best efforts to resolve such disagreement amicably. In the absence of an amicable agreement, any dispute arising between the parties will be subject to the exclusive jurisdiction of the court of Albi, Toulouse or Bordeaux (France).

GENERAL TERMS OF SALE (OUTSITE EUROPEAN UNION)

     1. GENERAL COMMENTS

These General Terms and Conditions of Sale (hereinafter the “GTCS”) govern the sale and delivery of the goods (hereinafter the “Products”) sold by LABORATOIRES PHODÉ SAS (hereinafter “the Seller”) to any buyer (hereinafter the “Customer”) of PHODÉ whether established in abroad (European Union exclude).
The GTCS are systematically given to each Customer with, on one part, confirmation of the order and on the other part, the invoice.
The GTCS are deemed to have been accepted by the Customer if the latter has not expressly objected in writing within seven (7) days of the confirmation of the order confirmation issued by the Seller.
No waiver of any of the provisions of these GTCS shall be deemed, or will constitute, a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party to be bound thereby.

     2. ORDERS

The Seller is only bound by orders taken by its representatives or employees, upon to written confirmation of the said orders (in particular via electronic communication). Acceptance may also result from the shipment of the Products. The Seller reserves the right to cancel/refuse an order at its sole discretion.

     3.PRODUCT’S EVOLUTION

The Seller reserves the right to unilaterally modify the characteristics of the Products ordered by the Customer due to technical developments on one hand and to compliance with the applicable legal and regulatory provisions on the other hand, without giving rise to any right to compensation.
In this case, the Customer shall not refuse the modification of the Products. However, in the event of a technical development affecting the ordered Product, the Seller undertakes to notify in advance the Customer, in accordance with the regulatory provisions.

     4.PRICE

The prices of the Products are indicated by the Seller to the Customer. The products’ prices are net; excluding discounts, taxes, delivery costs, insurance costs and are established on the basis of the prices in force on the date of the order’s receipt. Unless otherwise agreed, prices do not include accessory costs, nor specific packaging costs. All taxes, duties, or other payable charges pursuant to applicable laws and regulations shall be borne by the Customer. In the event that these charges have been paid by the Seller on behalf of the Customer, the Customer shall fully reimburse the Seller.

     5. PRICE REVIEW

The Seller reserves the right to unilaterally revise the prices of the Products, in particular in the event of an increase in the cost of raw and/or auxiliary materials as well as energy. If necessary, the Seller shall inform the Customer of such price revisions within a reasonable period (period of not less than thirty (30) days), it being understood that the prices are otherwise revised annually and are communicated to the Customer on request and at the latest at the time of order confirmation.

     6. INVOICING AND PAYMENT

Invoices are denominated in euros and payable to the Seller within sixty (60) days from the date of the invoice. Any additional fees related to the payment will be paid by the Customer. For any payment made from abroad only the bank transfer is accepted by the Seller.
The terms of payment may change depending on the regularity of payments and the financial situation of the Customer, in particular in the event of insolvency, a poor financial rating (COFACE) or a history of late payment of the Customer. In this case, the Seller may request cash payment for any order placed by the Customer.

In accordance with Article L.441-16 of the French Commercial Code, any late payment automatically entails, as a late payment penalty, interest equal to three (3) times the legal interest rate in force from the day following the payment date appearing on the invoice as well as the payment of the fixed indemnity for recovery costs in the amount of forty (40) euros. Late payment penalties due to the Seller by the Customer are due without the need for a reminder.
In the event of late payment of any order, the Seller reserves the right to postpone the delivery of any other order until the price of the Products is paid in full.
Any claim relating to an invoice must be notified in writing to the Seller within eight (8) days of the invoice date. After this period, the Customer is deemed to have accepted the invoice.

     7. DELIVERY AND TRANSPORT

Any delivery time indicated on an invoice is indicative and the Seller will not be liable. A delivery can be made in whole or in part if the Seller is obliged to do so. A delay in the delivery of Products and/or partial delivery does not release the Customer from its obligation to accept the delivery and to pay the invoice relating to the delivered Products.

     8. TRANSFER OF RISKS

The transfer of risk related to the Products to the Customer will be carried out in consideration of the INCOTERM “FCA Terssac” (Usine Laboratoires Phodé, ZI Albipôle 8 avenue de la Martelle 81150 TERSSAC, France), in accordance with the INCOTERMS CCI 2020. For each order, the Products will be made available to the Customer on a date indicated to the Customer in advance by the Seller. In the event that the Customer does not collect the Products by this date, any costs resulting from the immobilization of the Products will be borne by the Customer.
The transfer of risk begins to run from the date of availability of the Products at Laboratoires Phodé’s warehouse (81150 France). Therefore, the Customer bears all risks and assumes responsibility for the transport and associated costs from the time of availability to the final destination of the Products.
Products whose delivery is postponed or pending payment, as well as Products whose delivery is refused or not accepted by the Customer without a valid reason will be held and stored by the Seller at the Customer’s risk and expense.

     9. RECEPTION AND CLAIM

Upon receipt of the Products by the Customer, the Customer must check their condition to ensure that the Products delivered meet all contractual and compliance requirements.
Damage, loss or delay must be mentioned on the delivery note. In addition, in accordance with Article L.133-3 of the French Commercial Code, any reservation must be confirmed to the carrier by registered letter within three (3) days of delivery, after which no claim will be accepted. In this case, it is the Customer’s responsibility to take all precautions and to exercise any recourse against the carrier, which is solely responsible for both the damage suffered by the Products during transport and the damage that may result directly or indirectly from it.
Where applicable, claims relating to defects must be notified in writing to the Seller no later than four (4) days from the date of delivery. It is provided that the use and/or processing of the Products constitutes a waiver of any claim against the Seller in respect of such Products.
In the absence of a reservation notified by the Customer to the Seller according to the above-mentioned conditions, the delivery is deemed to have been made and the Products compliant.

     10. GUARANTEES

The Seller is only bound by the aforementioned guarantee of proper delivery and compliance of the Products, to the exclusion of any other warranty.

No return will be accepted without the express prior consent of the Seller. However, the Seller may, at its own decision, proceed with the replacement of the Products (at no additional cost to the Customer) or the total refund of the amount of the related invoice.
However, any Seller’s warranty shall not apply in the event that the Customer fails to comply with:

• the recommendations for use made by the Seller, or,
• optimal storage conditions for the Products; in any dry place, at suitable and constant temperature and not permitting any source of contamination of the said Products, or,
• the Product’s shelf life.

     11. LIABILITY

The Seller shall not be liable towards the Customer, or any other person, for any type of indirect, special, incidental or punitive damages resulting in particular from; loss of goodwill, loss of turnover and/or profits or loss of image.
The Seller and its subsidiaries shall not be held liable towards the Customer, in particular because of:

• failure by the Customer to comply with applicable laws and regulations,
• conditions of sale, marketing, distribution, promotion, storage, handling of the Products by the Customer or its subsidiaries or its own distributors,
• wrongful acts or omissions of the Customer, its suppliers, distributors or subcontractors,
• any allegation made by the Customer in particular,

     12. RETENTION OF TITLE

The transfer of ownership of the Products will only take place upon full payment; principal and ancillary costs.
The Customer shall insure the delivered Products at his own expense against any risk of deterioration, destruction or disappearance such as notably theft, fire, water damage for the period up to full payment of the Products.
In the event of seizure or any other intervention by a third party on the Products, the Customer must imperatively inform the Seller without delay in order to allow the Seller to oppose and preserve its rights. In addition, the Customer shall also refrain from pledging or assigning the Seller’s Products as a guarantee.
If the Customer were to pledge Products belonging to the Seller as a guarantee, the Seller would reserve the right to collect the existing Products from the Customer, all sums due then becoming immediately due by operation of law and without formality.
In any case, the Customer must inform the Seller if the Customer is the subject of insolvency proceedings, by registered letter with acknowledgment of receipt within fifteen (15) days of the pronouncement of the opening judgment, in order to allow the Seller to claim the Products found in kind among the Customer’s assets. To this end, the Customer shall ensure that the identification of the Products is always possible on its premises.

     13. INTELLECTUAL PROPERTY

The Customer is reminded that the name “LABORATOIRES PHODÉ” and “PHODÉ” as well as the associated logo are registered as trademarks by the Seller.
It is strictly forbidden for the Customer to register, exploit or reproduce any trademarks, models or designs exploited and/or registered by the Seller, in any capacity and on any medium whatsoever without the prior written consent of the Seller.
It is strictly forbidden for the Customer to counterfeit and/or reverse engineer the Products in any way whatsoever.

     14. CONFIDENTIALITY

The Customer shall refrain from disclosing any technical, commercial, financial or any other information obtained in the context of the contractual relationship with the Seller.
As such, the Customer shall take all necessary precautions to prevent the prohibited disclosure or use of the Seller’s confidential information or trade secrets in particular by their employees, subcontractors, services providers or customers.

     15. TERMINATION

In the event of non-payment, fifteen (15) days after the sending of an unsuccessful payment reminder, the sale may be cancelled by operation of law by the Seller and the delivered Products must be returned to the Seller notwithstanding any possible recourse by the Seller due to notably any damage that may have been sustained. Deliveries in progress may be suspended at the initiative of the Seller, without this constituting a right to compensation for the Customer.

     16. FORCE MAJEURE

The Seller or the Customer cannot be held responsible for the non-performance of its obligations as a result of the occurrence of an event constituting a case of force majeure, with the exception of payment obligations. In addition to the cases recognized by case law, the following events are considered to be cases of force majeure: strike, war, attack, global pandemic, lock-out, act of the Prince, partial or total shutdown of supplying sources of raw materials and/or energy.
The party affected by such event shall notify the other party by registered letter with acknowledgement of receipt within fifteen (15) days of the occurrence of the event of force majeure. Consequently, these GTCS will be suspended for the duration of the force majeure event. In the event that the GTCS are suspended for more than ninety (90) days, then either party shall have the right to terminate the sale without any compensation being paid to the other party. This termination will be notified by operation of law and without any other formality than the sending of a registered letter with acknowledgment of Receipt.

     17. INUITU PERSONAE

In the event of a dissolution or modification of the Customer’s company, notably assignment of the Customer’s company, or any other hypothesis that may affect the Customer’s solvency, the sale and/or delivery of the Products may be cancelled by operation of law by the Seller without delay.

     18. PRIVACY POLICY (GDPR)

Regarding the use of certain personal data of the Customer, which are necessary for the processing of orders and the management of commercial relations, by placing an order, the Customer gives his tacit consent to the processing of the personal data that he discloses to the Seller. These personal data are kept in a file provided for this purpose for which the Seller has put in place technical and organizational measures to ensure the protection of the said data under its control.
In accordance with the applicable laws and regulations, namely Law No. 78-17 of January 6, 1978, relating to data processing, files and freedoms, as amended by Law No. 2004-801 of August 6, 2004 and European Regulation No. 2016-679, it is understood that the Customer has a right of access, rectification, deletion, restriction of processing, objection, opposition and portability of his personal data, which has been collected by the Seller in order to process the order and manage the commercial relationship.
The exercise of these rights may be carried out by sending a request to the Data Controller at the following email address (dpo@phode.fr) and attaching a valid proof of identity.

     19. MISCELLANEOUS PROVISIONS

It is provided that any failure or delay in exercising, for any party, a right under these GTCS will not constitute a waiver of that right.
If any GTCS’ provision is found to be illegal, invalid or unenforceable in whole or in part, the validity of the remaining GTCS’ provisions shall not be affected.

     20. GOVERNING LAW

These GTCS are governed by French law.
In the event of any dispute or claim arising from the interpretation or execution of these GTCS, the parties will use their best efforts to resolve such disagreement amicably. In the absence of an amicable agreement, any dispute arising between the parties will be subject to the exclusive jurisdiction of the courts of Albi, Toulouse or Bordeaux (France).