Laboratoire Naturel SA
Standard Terms and Conditions for Customers’ Purchase of Goods
Notice. These terms and conditions are the commercial terms of purchase of goods(“Products”) from Laboratoire Naturel SA(“Supplier”) and apply to all purchases of Products from Suppliers by any Client(“Client”). These Terms constitute the entire agreement of the parties with respect to the subject matter hereof; they prevail above all previous correspondence, proposals, offers, usages, course of dealings and conventions including implied contracts or commitments, unless contractually agreed otherwise.
1 DEFINITIONS AND INTERPRETATION
1.1 In these Terms and Conditions, the following terms and expressions shall, unless the context otherwise requires, have the following meanings:
“Commencement Date” means the date of the written acceptance by the Supplier of the order placed by the Client;
“Confidential Information” means Confidential Information as defined below;
“Control“ means the ability to direct the affairs of another whether by virtue of the ownership of shares, contract or otherwise;
“Product” and “Products” means the specific Product and/or the range of Products made available by Supplier to Client;
“Schedules” means any information with regards to the pricing, ordering, manufacturing, delivery and payment of the Product which is agreed upon between the Supplier and the Client in writing, by email or any other form of communication, outside the scope of these Terms and Conditions.
“Territory“ means the countries or part of a country where commercial activities are taking place;
“Trademarks“ means the trade mark registration and applications; and
“Working Day“ means a day other than a: Saturday, Sunday or public holiday in the Territory.
1.2 In the event of any inconsistency between the Schedules and any terms or provisions of any clause contained in these Terms and Conditions, the terms or provisions in the clause of these Terms and Conditions shall prevail.
1.3 References to the singular shall include the plural and vice versa and references to any gender shall include other genders.
1.4 The headings in these Terms and Conditions are for ease of reference only and do not form part of the contents of these Terms and Conditions and shall not affect its interpretation.
1.5 The word “including” shall mean including without limitation or prejudice to the generality of any description, definition, term or phrase preceding that work, and the word “include” and its derivatives shall be construed accordingly.
1.6 Save as provided for elsewhere in these Terms and Conditions, these Terms and Conditions represent the entire of the understanding of the parties concerning the subject matter hereof and overrides and supersedes all prior promises, representations, understandings, arrangements, agreements, letters of intent or heads of agreement concerning the same which are hereby revoked by mutual consent of the parties and upon which the Parties confirm they have not relied provided that nothing in this clause shall operate to limit or exclude any liability for fraudulent misrepresentation.
2 THE SUPPLIER’S DUTIES AND RESERVED RIGHTS
2.1 The Supplier reserves, in its sole and absolute discretion, the rights to reduce, limit, delay, postpone, cancel or reschedule any order from the Client because of shortages of raw materials, labour shortages, Force Majeure or other circumstances beyond the Supplier’s reasonable control.
2.2 The Supplier shall use reasonable endeavours to provide and deliver adequate Products during the cooperation to the Client to fulfill orders placed by the Client.
2.3 The Supplier will endeavour to supply the Products to the Client for resale in accordance with the Client’s forecast.
2.4 The Supplier will ensure that the Products are properly packed and secured in such a manner as to enable them to reach their destination in good condition.
2.5 The Supplier will provide any information that may reasonably be requested by Client (which is in the Supplier’s power or control) to enable the Client to discharge its duties under these Terms and Conditions properly and efficiently.
3 TERMS OF SALE
3.1 By placing an order with the Supplier, the Client hereby accepts these Terms and Conditions. All other prior representations (written or oral) and any terms and conditions contained in the Client’s enquiries, orders, confirmations, contracts or delivery notes and any other such document unless accepted in writing by the Supplier are hereby excluded. In addition to these Terms and Conditions the Supplier provides the Client with Schedules applicable to the Product. The Client agrees to buy the Products at the prices pre-agreed for a period specific to a certain purchase. The Supplier will endeavour to give the Client at least 30 days’ notice of any increase in the price of Products to be sold by the supplier to the Client for the upcoming calendar year.
3.2 The prices of the products are agreed with the client prior to commencement.
All orders are subject to acceptance by the Supplier based on the Minimum Order Quantity (MOQ) for production and delivery of the Product. The delivery MOQ of the Product is determined by the Supplier in accordance with product specifications, logistics specification, feasible production processes.
3.3 The Client shall pay the Supplier pursuant to the payment provisions as agreed in writing.
3.4 Title and risk in the Products shall pass to the Client in accordance with the Incoterms (or other terms).
3.5 Prices, specifications and delivery date referenced in the Supplier's quotations are for information only and shall not be binding on the Supplier until all technical requirements have been agreed and the Supplier has accepted the Buyer's order. All purchase orders must be submitted in writing to the relevant service contact, email address of the Supplier or using an existing EDI connection between the Client and the Supplier. Clients cannot cancel a purchase order once Products have been manufactured or special raw materials are purchased.
3.6 All purchase orders are subject to written acceptance by the Supplier. Any terms or conditions contained in any such purchase order which are in addition to or different from those contained herein or the Supplier’s standard terms and conditions of sale, as in effect from time to time, shall be null and void and shall not be binding on the Supplier. All orders are subject to: (i) credit approval; (ii) rejection or modification due to required delivery date or raw material availability; and (iii) minimum order quantities, unless contractually agreed otherwise. No lead times are guaranteed unless agreed to in writing by both parties. Any delivery date stated in a quotation or otherwise is based on Client’s timely compliance with Supplier’s requirements and timely receipt of a purchase order and complete specifications as well as any necessary documents and authorizations; any delay will result in delays in delivery. Supplier reserves the right to pass on to the Client any costs associated with a delay in delivery in the event the delay is caused by the Client’s non-compliance to the indicated time schedules.
3.7 To the fullest extent permitted by law, the Supplier excludes all other warranties relating to the Products, express or implied, and whether relating to merchantability, fitness for purpose or quality or characteristics of the Products.
3.8 Any temporary surcharge imposed to Supplier will be passed on to Client during whatever period of time such surcharge might be in effect, unless otherwise agreed.
3.9 Supplier reserves the right to: (i) adjust the quantity ordered to nearest standard shipping unit such as FTL unless contractually agreed otherwise; (ii) deliver ordered Products within a range of plus or minus ten percent from the ordered quantities unless contractually agreed otherwise. Client shall be fully responsible to pay or to reimburse Supplier for carrier demurrage and detention charges incurred as a result of delays caused or allowed by Client. If prices include a freight component, prices shall be subject to adjustments effective immediately without notice in the event of a subsequent change in freight rates or the imposition of a fuel or other surcharge.
3.10 Any custom descriptions and layouts supplied with a quotation, unless otherwise stated, are preliminary only and Supplier reserves the right to make modifications (after advising Client) if Supplier determines that the modifications will result in increased efficiency of production or use. At any time that any such contemplated modification may result in any substantial change in appearance or function, Supplier will not make such change without Client's prior approval.
3.11 Client may not reject as nonconforming any Products based on artwork or copy which Client previously approved or because Products, conforming to samples, mock-ups or specifications (and tolerances), are incompatible with another manufacturer’s goods. Artwork, product design, product formulations, production and packaging methods and other materials, information and intellectual property, including any patent, trademark, trade dress, copyright, trade secret or any other intellectual property (collectively “IP”), developed in whole or in part by Supplier shall remain Supplier’s property and subject to all IP protections, including obligations regarding Confidential Information, unless contractually agreed otherwise.
4 CONFIDENTIAL INFORMATION
4.1 The parties will keep in confidence and use all Confidential Information only for the purposes of fulfillment of the obligations under these Terms and Conditions. Confidential Information means information belonging or relating to the parties, their business or affairs, including without limitation, information relating to research, development, Products, processes, Trademarks, data, diagrams, graphs, methods of manufacture, trade secrets, business plans, customers, finances, personnel data, and other material or information considered confidential and proprietary by the parties or which either party is otherwise informed is confidential or might or ought reasonably expect that the other party would regard as confidential or which is marked “Confidential”. Confidential Information does not include any information (i) which one party knew before the other party disclosed it to that party; (ii) which has become publicly known through no wrongful act of either party, or either parties’ employees or agents; or (iii) which either party developed independently, as evidenced by appropriate documentation; or (iv) which is required to be disclosed by law.
4.2 The parties will procure and ensure that each of its employees, agents, servants, sub-contractors and advisers will comply with the provisions contained in this clause.
4.3 If either party becomes aware of any breach of confidence by any of its employees, officers, representatives, servants, agents or subcontractors it shall promptly notify the other party and give the other party all reasonable assistance in connection with any proceedings which the other party may institute against any such person.
5 TERMINATION OF COOPERATION
5.1 Either party may terminate the fulfillment of their obligations under these Terms and Conditions by written notice to the other party where:
5.1.1 the other party has committed a material breach of these Terms and Conditions including the terms, conditions and provisions of the Schedules of the Product and where the breaching party has failed to remedy such breach within 30 days after receiving written notice from the non-breaching requiring it so to do; and/or
5.1.2 the other party is subject of an order or an effective resolution is passed or a petition is presented for its winding up, or there is a meeting convened to enter into an examinership, or an arrangement or composition is made for the benefit of its creditors, or if a receiver or examiner is appointed over its undertaking or part thereof, or if it commences or has filed against it any bankruptcy, reorganisation, liquidation or insolvency proceeding under any law in any country.
5.2 In the event of the Supplier maintaining minimum purchase requirements, the Supplier may terminate the fulfillment of his obligations under these Terms and Conditions at any time upon giving 30 days’ written notice where the Client fails to purchase the minimum quantities of Products.
5.3. In the event of the Client terminating the cooperation by means of canceling the order prior to its fulfillment and shipment for reasons other than described in clause 5.1. and clause 8., the Supplier reserves the right to charge the Client for all costs incurred for the Product. Such costs include but are not limited to: business development costs; costs of raw materials, pre-production samples, sourcing, logistics, product testing and certification and other administrative costs.
6 EFFECT OF TERMINATION OF COOPERATION
6.1 Upon termination all outstanding sums due by the Client to the Supplier shall be paid immediately.
6.2 In case of termination any products manufactured for the client need to be purchased by the client or paid for. Raw materials sourced specially for the Client need to be compensated for based on their landed cost of goods at the given moment.
6.3 On termination all rights and obligations of the parties under these Terms and Conditions shall automatically terminate except for any rights of action which may have accrued prior to termination and any obligations which expressly or by implication are intended to commence or continue in effect on or after termination.
7 DEFECTIVE PRODUCTS
The Supplier agrees to replace, at the Supplier’s option, any defective Products which have been returned to the Client and which the Client returns to the Supplier or which the Client discovers to be defective prior to resale and returns promptly to the Supplier and the Supplier shall be responsible for the cost of replacing such returned defective Products, provided always that the Client notifies the Supplier within seven days unless agreed otherwise in writing of any defective Products being returned to the Client, or of the Client discovering any defective prior to resale (as applicable). The Supplier shall have no further liability to the Client in relation to defective products if the Client has not notified the Supplier within the specified time limit of seven days.
8 FORCE MAJEURE
Neither party shall be liable to each other for any loss or damage suffered (save the Client’s obligation to pay for the Products in accordance with clause 5 and Schedules) by the other due to delay in performance of or failure to perform either party’s obligations, resulting from an event that is outside the reasonable control of that party. References to force majeure shall refer to circumstances that are beyond a party’s control and that affect production or transportation, including acts of God, acts of war, acts of government, terrorism, riots, labor strikes, labor lockouts, interruption in telecommunication transmission or product transportation, materials shortages or delays or sudden severe increases in materials prices or other costs, accident, fire, water damage, flood, earthquake, windstorm, other natural disasters and catastrophes, and compliance by a party with any order, action, direction or request of any governmental officer, department, agency, authority, or committee thereof. Either party shall inform the other party promptly of any force majeure situation coming to its knowledge and affecting performance under these Terms and Conditions and supply satisfactory evidence thereof. Should any such event occur, the parties to these Terms and Conditions may opt to terminate these Terms and Conditions if the other party is unable to perform its obligations for a period in excess of 60 days after the date of the occurrence of the event without either party incurring any liability for any loss or damage of whatsoever nature howsoever arising thereby occasioned.
9 INDEMNITY AND LIABILITY
9.1 The Client shall indemnify the Supplier in full and hold the Supplier harmless in respect of any loss, damages, proceedings, suits, third party claims, judgments, awards, expenses and costs (including legal costs) incurred by or taken against the Supplier as a result of the negligence, fault, error, omission, act or breach of the Client or of its employees, staff, contractors, agents or representatives and for any breach of these Terms and Conditions whatsoever.
9.2 Notwithstanding any other provision contained in these Terms and Conditions, the Supplier shall not be liable to the Client for any special, incidental, indirect, punitive or consequential loss or damages, whether occasioned by the negligence, fault, error, omission, act or breach of the Supplier, its employees and contractors and sub-contractors and which shall include, without limitation, loss of business, revenue or profits, loss of use or data, loss of savings or anticipated savings, loss of investments, loss of goodwill or reputation, capital costs or loss of extra administrative cost whether or not foreseeable, arising out of or in connection with these Terms and Conditions, whether in an action based on contract, equity or tort including negligence or any other legal theory.
9.3 Notwithstanding any other provision of these Terms and Conditions, the aggregate liability of the Supplier for or in respect of all breaches of its contractual obligations under these Terms and Conditions and all representations, statements and tortious acts or omissions arising under or in connection with these Terms and Conditions shall in no event exceed the cost of the Products purchased by the Client from the Supplier during the quarter (the three calendar month period) in which the alleged breach, representation, statement, tortious act or omission occurred. This limited warranty is void with regard to any Products altered, misused or subject to neglect or accident. Supplier shall not be responsible to Client under this limited warranty for fit or other compatibility problems when the products are stored in an improper way. Storage advice provided by Supplier relating to the Products is subject to the foregoing disclaimer of warranties and limitation of damages provision.
9.4. Products are warranted to: (i) be substantially free from defects in material and workmanship when delivered and (ii) comply with applicable specifications for the Products, within stated tolerances; provided, it shall be Client’s responsibility to assure such specifications and tolerances will meet Client’s and any Third Party Buyer’s use and compatibility requirements, unless contractually agreed otherwise. Supplier’s limited warranty is conditioned upon Client’s acknowledgement and agreement that Client has examined and tested samples, or has intentionally and knowingly declined to examine and test samples, prior to placing the order for the Product, and that the Client has independently determined that the Products (i) meet Client's and any Third Party Buyer’s use and compatibility requirements, regardless of Supplier’s knowledge of such requirements; (ii) are appropriate for and comply with Laws relating to Client’s and any Third Party Buyer’s intended or actual use. If Client is a Reseller, the foregoing warranty conditions apply to the resale of Products to Third Party Buyers.
10.1 Payment terms are confirmed by the Supplier to the Client in writing. Unless contractually agreed otherwise, Client shall not have the right to set off any payments due. In case of any overdue payment the Supplier reserves the right to impose a service charge of 0,05% per day for the total amount overdue starting from the first working day of the period overdue and may hold or cease shipments of Products. Client agrees to pay Supplier’s attorney's fees and expenses and other collection costs in the event collection or other enforcement efforts become necessary or appropriate in Supplier’s discretion. In addition, Supplier shall have the right to terminate a sale, to stop Products in production or in transit, and to suspend further performance under these terms and conditions and/or other agreements with Client in the event Client fails to make any payment when due, which other agreements Client and Supplier hereby amend accordingly.
10.2 If Client’s purchases of Products are made through a broker, distributor, wholesaler, filler or other intermediary (“Intermediary”), references herein to “Client” shall include such Intermediary as necessary to the context and Client agrees that Supplier shall be entitled to make credit decisions concerning sales to the Intermediary in Supplier’s discretion and may refuse to make sales on credit as it determines in its discretion. Supplier, to the extent necessary to protect its interest in receiving payment for Products, shall be a third party beneficiary of any purchase contract between the Intermediary and Client. If Supplier makes sales of Products to the Intermediary as an accommodation to Client, Client shall remain liable to Supplier for the cost of Products sold to the extent that the Intermediary fails or refuses to pay Supplier for such Products; Client waives all suretyship defenses.
11.1 If Supplier has agreed to retain an inventory, such as special raw materials purchased or safety stock of Products, Supplier’s obligation to produce Products for safety stock shall be subject to Client’s continued compliance with these Terms and Conditions, including timely payment and the responsibility to provide an accurate forecast and comply with applicable lead-times.
11.2 Unless contractually agreed otherwise, in the event any Product is discontinued or changed by Client, Client shall purchase and pay for all Products previously manufactured and raw materials previously purchased to produce said Product. The cost of raw materials includes however is not limited to: (i) plastic film, closure stickers, labels and/or special carton packaging for the Product; (ii) perfume and/or any other components of the lotion for the Product; (iii) logistics costs of transporting, exporting and importing of said raw materials by Supplier to the production location; (iv) storage costs incurred in retaining the raw materials for a period longer than 6 months after purchasing; (v) any financial and banking costs incurred in sourcing of specific raw materials for the Product; (vi) any other cost associated with discontinuation and consequent write-off and disposal of said raw materials by Supplier.
11.3 Supplier will inform Client of the shelf life period applicable to the manufactured Products and raw materials purchased to produce said Products in writing in a timely manner. In the event the shelf life of retained Products and raw materials purchased to produce said Products is exceeded, Client is obligated to reimburse Supplier in a manner indicated by Supplier. Supplier shall not be liable for any claims regarding the quality of the retained Products and raw materials purchased to produce said Products once the indicated shelf life period is exceeded.
12.1 If any provisions of these Terms and Conditions are held to be unenforceable, illegal or void in whole or in part the remaining portions of the Agreement shall remain in full force and effect.
12.2 A waiver by either party to these Terms and Conditions of any breach by the other party of any of the terms of these Terms and Conditions or the acquiescence of such party in any act which but for such acquiescence would be a breach as aforesaid, will not operate as a waiver of any rights or the exercise thereof.
12.3 Any notice to be given hereunder by either party to the other shall be in writing and delivered personally or sent by pre-paid post to the addressee at the addressee’s address as mentioned herein for the time being or by fax or email and shall be deemed to be received if delivered personally at the time of receipt, if sent by pre-paid post at the expiration of 2 Working Days after being placed in the post (having been correctly addressed) whether or not received or if by fax or email when dispatched (provided the sender does not receive a message stating that the fax or email was undeliverable) provided that where, in the case of delivery by hand or by fax or email, such delivery or transmission occurs after 5pm on a Working Day, service shall be deemed to occur at 9.00am on the next working day.
13 CHOICE OF LAW AND CHOICE OF JURISDICTION
13.1 All disputes between the parties arising out of or in any way relating to these Terms and Conditions or any other disputes between the parties in any way connected with the subject matter of these Terms and Conditions shall be governed by the laws of Canton of Vaud, Switzerland.
13.2 Each of the parties hereby submits to the exclusive jurisdiction of the Courts of Canton of Vaud for the purpose of any proceedings arising out of or in any way relating to these Terms and Conditions or any other proceedings in any way connected with the subject matter of these Terms and Conditions.
13.3 Nothing contained in clause 13.2 shall limit:
11.3.1 the right of the Supplier to seek provisional or protective relief in the courts of another state prior to, during or after any substantive proceedings have been instituted in Switzerland pursuant to clause 13.2; or
13.3.2 the right of the Supplier to bring enforcement proceedings in another state on foot of a Swiss judgment; or
13.3.3 the right of the Supplier to initiate proceedings against the Client in the Territory where the client is based.