Last update: June 2023
1.1. These general terms and conditions of purchase (“GTCP”) apply to any professional supplier (“Supplier”) and for all goods and/or services ( “Products” or “Services”) purchased by MOËT HENNESSY DIAGEO, a simplified joint stock company with a share capital of EUR 64,000, registered under number 337 080 055 in Nanterre Register of Companies, having its registered office located at 105 boulevard de la Mission Marchand – Défense Avenue – 92400 Courbevoie (“MHD”), from the Supplier.
1.2. These GTCP cancel and replace the previous general terms and conditions of purchase of MHD. Any subsequent modification by MHD of these GTCP shall be notified to the Supplier by email with acknowledgement of receipt and shall become effective within thirty (30) days of such notification.
1.3. These GTCP prevail over any different or contradicting clauses in Supplier’s documents, including Supplier’s general terms and conditions of sale.
2.1. The Supplier undertakes to only supply Products and/or perform Services that comply with applicable laws, regulations and standards, including in respect of:
2.2. Any deviation from this article will be considered as a non-compliance. The Supplier undertakes to immediately inform MHD of any problem encountered with an order likely to impact its full compliance with the above-mentioned rules.
2.3. The Supplier agrees that audits can be carried out in its own premises by MHD directly or through a service provider mandated by MHD to that end.
3.1. All orders must be placed through a Purchase Order (“PO”) stating an order number, a Supplier account number and, if applicable, the incoterms applicable to the order. The Supplier agrees that the order can be sent via Electronic Data Interchange (EDI).
3.2. Upon receipt of an order, the Supplier must send its acceptance or its refusal by return to MHD and proceed to the delivery of the Products or the performance of the Services within the time specified on the PO placed by MHD. Supplier’s commencement of performance of an order or failure to respond within five (5) business days of receipt of a PO constitutes unconditional acceptance of the PO by the Supplier.
3.3. Once an order has been accepted by the Supplier, MHD can notify any modification to that order up to eight (8) business days prior to the date set for the delivery of the Products or the performance of the Services in the PO. The Supplier must then inform MHD as soon as possible of any change in price or schedule resulting from the requested modifications. Every modification must be approved by MHD prior to its implementation, in writing by way of an amendment to the initial order.
3.4. The order number must be mentioned on all delivery or shipping documents that must always be with the Product, otherwise, the latter can be refused upon its arrival.
3.5. Any order may be cancelled by MHD in the event of late or incomplete delivery, non-compliant Products, late or incomplete performance of Services.
4.1. For certain Products, MHD may require the Supplier to keep permanent stocks. A monthly statement of these stocks including the description of Products must be sent by the Supplier to MHD before the last working day of each month. Upon depletion of the forecast annual volume and within the period corresponding to production time, the Supplier must contact MHD to possibly agree on a restoration of permanent stocks.
4.2. In the event of modification by MHD of a purchased Product, MHD shall only pay for potential quantities being produced or in stock, limited to the quantity agreed between the parties for the permanent stock.
In all cases, quantities produced over this limit – including quantities in stock – shall remain at the Supplier’s expense.
4.3. The Supplier shall respect quantities and dimensional characteristics of Products by packaging, grouping packaging and palletizing plan, without making any change without the prior written consent of MHD.
5.1. Prices are those agreed between the Supplier and MHD as stated on the PO. These prices are in euros, excluding taxes, firm, carriage free and non-revisable, including all tangible and non-tangible assets, customs and other duties, moveable and immoveable assets, insurance policies and all other costs, in particular packaging costs, risks or expense in connection with the completion of the order.
5.2. It is agreed to exclude application of Article 1195 of the French Civil Code to any order.
5.3. Unless prior and written acceptance by MHD specifically indicated on the PO, no additional cost of any kind or nature will be borne.
5.4. Invoices must be issued in two (2) copies to the name and address indicated on the PO, indicate the order number and the Supplier account number, MHD’s codes and references for items, as well as the information required by Article L.441-9 of the French Commercial Code. Any invoice failing to state any of the above-mentioned indication will be rejected and will only be effective once duly regularized. Invoices must be sent to MHD to the following e-mail address: email@example.com
5.5. Except for any mandatory or exceptional payment terms provided by law, MHD will issue payment by bank transfer and within sixty (60) days of the date of issuance of the invoice. Nevertheless, invoices issued periodically will be paid by bank transfer within forty-five (45) days from the date of issuance of the invoice.
5.6. Any sums owed by the Supplier to MHD will be automatically offset against the price owed by MHD to the Supplier, according to Articles 1347 et seq. of the French Civil Code.
6.1. Products are shipped at Supplier’s risk. The transfer of risks is effective after the complete unloading of the Products at the premises of MHD or at any other location stipulated by MHD.
6.2. The transfer of ownership of the Products ordered by MHD is effective at the time of delivery of the Products to MHD and signing of the delivery note.
7.1. The Supplier commits to deliver the Products and/or perform the Services in accordance with the PO. Deadlines for the delivery of Products and/or performance of Services set by MHD in the PO are binding and cannot be modified without MHD’s prior and written acceptance.
7.2. The delivery date is the date the Products arrive at the premises of MHD (or any other location specified by MHD in the PO) and not the shipping date, or, if applicable, the date the Services are entirely performed. The Supplier shall make an appointment at least forty-eight (48) hours before delivery at the location stipulated on the PO and comply with the opening hours, conditions of access and circulation of the delivery site.
7.3. A numbered delivery note (indicating the name of MHD and address for delivery, the Supplier’s name and address, the order number, MHD’s codes and references for the Products, a description of the Products pursuant to the PO, their quantity and/or weight) will be issued in duplicate by the Supplier for each delivery of Products. If applicable, the Supplier will send to MHD, its freight agent in France and/or carrier two (2) sets of the necessary customs clearance documents and will issue any appropriate customs transit documents. If the same production batch is delivered in parts, each unit of delivery must be clearly identified as belonging to the production batch. In such a case, the Supplier follows the principle “first produced, first delivered”.
7.4. The delivery of Products is evidenced by the signing of the delivery note and the transport note by authorized personnel of MHD.
Any modification by the Supplier of the quantities of Products stipulated on MHD’s PO is subject to MHD’s prior and written consent. In the absence of MHD’s written consent, any modification of quantities by the Supplier compared with the initial order can justify the cancellation of the order and/or the refusal to accept delivery by MHD.
9.1. Products delivered and Services performed by the Supplier must be of perfect quality and presentation, adapted to the use for which they are sold, exempt from any defect, comply in all points with the order, with applicable French and European regulations and standards, as regards to quality, safety and consumer protection, composition and labelling. Any discrepancy with such requirements applicable to the Products and/or Services is considered a non-compliance. Likewise, since delivery times are binding, any late delivery of Products or performance of Services is considered a non-compliance.
9.2. In the event of non-compliance recorded by MHD either upon delivery of the Products or upon opening the packages, or upon performance of the Services, MHD can impose late penalties on the Supplier amounting to zero point five per cent (0,5%) of the total amount of the order excluding VAT per calendar day of delay, as from the first day of delay, and capped at ten per cent (10%) of the total amount excluding VAT of the order. These penalties apply without prejudice to consequences, including claims for damages, resulting from any claims formulated by MHD in connection with the non-compliance of Products or Services.
9.3. In case of incomplete or late delivery, MHD reserves the right to cancel the remaining quantities to be delivered after the stipulated delivery time, without prejudice to any late penalty and without any need to have notice served.
9.4. In the event of a non-compliance, and without prejudice to MHD’s right to claim damages, MHD has one (1) month from the date of delivery of Products or performance of Services to either (i) cancel and refuse the order after informing the Supplier by letter with acknowledgement or receipt, or (ii) if the order is not canceled, receive, at Supplier’s expense, immediate replacement of non-compliant Products by identical Products or Products of better quality under the same price conditions and within eight (8) days from the date the claim is received, or request shipment of Products by the fastest means at the Supplier’s expense, or when it comes to Services, entrust a third-party provider to perform said Services at Supplier’s expense.
9.5. Non-compliant Products refused by MHD shall be kept in the condition they are in, at the disposal of the Supplier, who shall recover them at its risk and expense from the premises of MHD or any other location stipulated by MHD, within five (5) days from the date notice is sent by MHD. Beyond this period, MHD will destroy the non-compliant Products at the Supplier’s expense and charge Supplier with the cost of their prolonged storage.
10.1. The Supplier shall deliver Products or perform Services that comply with the expectations and specifications sent by MHD. As a professional the Supplier states that it has all means and the ability required to manufacture its Products or perform its Services and therefore commits to deliver Products and perform Services that comply with the professional standards of its profession. For this purpose, the Supplier agrees to carry out any and all inspections and take all steps necessary to obtain the required quality standard.
10.2. The Supplier states that it is capable of retrieving and communicating to MHD, within a timeframe allowing MHD to comply with its own obligations, any data concerning its manufacturing process (including raw materials) for the Products or the Services. The Supplier shall inform MHD as soon as he becomes aware of a conformity or quality defect on a batch delivered to MHD. The batch number and the order number are essential information for any communication on the traceability of Products.
11.1. The Supplier bears liability for any direct or indirect, material or immaterial, consequential or not, damages resulting from the execution of the order. Therefore, the Supplier will compensate MHD for the full amount of the damages, both direct or indirect, that MHD experiences, especially arising out of MHD’s resulting inability to perform its obligations toward its own customers.
11.2. The Supplier undertakes to take out, with a reputedly solvent insurance company, a third-party liability insurance policy covering its operations and postdelivery risks and any other compulsory insurance required for the processing of the order or pursuant to any other applicable law, covering in particular physical injury, material or immaterial damage, whether consequential or not, which may be caused to any third party, in particular to MHD and/or to MHD’s clients in the event of an incident resulting from the order. The Supplier will spontaneously provide, at the latest at the time of the order and each time a certificate is required, a valid certificate of insurance imperatively indicating the amount of insurance coverage corresponding to operating risks and post-delivery risks, which must imperatively be issued by the insurance company or one of its brokers. In any event, the amount of insurance coverage may not be less than six million five hundred thousand (6,500,000.00) euros, such amount not constituting a limitation of Supplier’s liability towards the MHD and its insurers.
Business secrets, methods and/or any technical and/or commercial information of either party disclosed in connection with an order are all considered as confidential information. Each party strictly respects the confidentiality of such exchanged information and shall not disclose it or provide it to third parties without the prior written consent of the other party. Each party shall comply with the obligations resulting from this confidentiality clause throughout the duration of their relationships and as long as such confidential information has not lawfully fallen into the public domain. Each party commits to make third-party follow this confidentiality provision. Upon written request of either party, the other party shall either return any document containing confidential information or destroy it and provide a certificate of destruction. In no event can a copy of these documents be kept. The confidentiality obligation applies during the execution of the order and for a further period of five (5) years following the termination of the order, whether early or not, regardless of the cause of termination.
13.1. No right is transferred or granted to the Supplier on the trademarks of products distributed by MHD or on items provided by MHD in performance of these GTCP apart from the right of use granted to the Supplier for the sole purposes and for the sole period of performance of its services. Any other use is subject to the prior and written consent of MHD.
13.2. Unless provided otherwise in the PO, for any Product involving an intellectual creation on behalf of MHD, the Supplier transfers to MHD, in consideration of the agreed price, as they are produced, all of the intellectual property rights attached to the Products for the whole world and for the statutory period of protection, including all items prepared and work done, directly or indirectly, by the Supplier during the term of these GTCP, such as in particular original advertising material, drawings, models, pictures, photographs, brochures, packaging, promotional techniques, contests, recipes. Such transferred rights include in particular reproduction, representation, adaptation and modification rights, by any means and on any media, as well as the right of secondary and derived use of the Products and all work and items specified above. Such exclusive transfer is conferred for the purpose of any use either (i) commercial or non-commercial, (ii) internal or external to MHD, (iii) promotional or advertising. Such use may be on any and all known or unknown media or non-media, including the Internet.
14.1. In the context of relationships between MHD and the Supplier for the purchase of Products and Services, MHD – as the data controller – collects and processes personal data about contacts from the Supplier (hereinafter referred to as “Contacts”). Such personal data shall be used for the purpose of managing commercial relationships with the Supplier based on a need-to-know basis for the purpose of implementing these GTCP. The Supplier agrees to inform said Contacts.
14.2. Personal data of Contacts shall be conveyed to MHD approved staff and MHD service providers involved in the purchase of Products, in charge of handling and carriage, or in the purchase of Services. Personal data concerning the Contacts shall be kept for two (2) years after the end of their commercial relationship.
14.3. Contacts have the right to access, rectify and delete their personal data, as well as a portability right on data that such Contacts provided, subject to the provisions set forth under regulations on the protection of personal data for the exercising of these rights. Contacts also have the right to stipulate directives concerning what should be done with their personal data after they are deceased and to request that any processing concerning them should be limited.
14.4. MHD’s Contacts from Supplier may exercise their rights with MHD by writing to the following address: firstname.lastname@example.org. Supplier’s Contacts from MHD may exercise their rights with the Supplier. Contacts are also informed that they can file a claim with the relevant authority in charge of the protection of personal data in France, the CNIL.
14.5. If the Supplier has to collect and process personal data on MHD staff, it agrees to comply with applicable regulations on the protection of personal data.
14.6. If the Supplier has to process personal data on behalf of MHD in the context of supplying Products or providing Services, a specific agreement shall be entered into with MHD to cover such processing in compliance with applicable regulations on personal data protection. In any event, the Supplier agrees that it shall comply with its obligations concerning the processing of personal data and any regulation applicable to its business issued by any supervisory authority.
15.1. The Supplier guarantees MHD against any non-conformity with respect to the order and applicable laws, standards and regulations, whether due to a design, conception, material or manufacturing defect, and more generally against any visible or hidden defect. In this respect, the Supplier undertakes, at MHD’s option, to take back, repair or exchange any defective performance of the order, at Supplier’s expense – including labor and postage costs – regardless of the nature or cause of the defect. The Supplier must remedy the consequences of such defects for MHD’s or its customers. MHD reserves the right to have third parties carry out the necessary works at Supplier’s expense, without prejudice to any claim for damages pursuant to Article 19 of the GTCP. If the warranty is claimed, a new warranty period will begin to start on the date of receipt by the MHD of the repaired or exchanged Products.
15.2. The Supplier guarantees that the Products or Services are not likely to be claimed by any third party especially on the grounds of earlier industrial or artistic property rights (patents, trademarks, drawings and models) and that the photographs of Products and Services can be reproduced on any media, including the Internet, except in the event of any decision providing otherwise expressed by registered letter with acknowledgement of receipt.
15.3. The Supplier guarantees that as of the date a PO is signed, (i) it is the owner of all intellectual property rights transferred under these GTCP, which have not been transferred or licensed, in all or in part, in any way whatsoever, and (ii) that no litigation is pending as regards the rights being transferred. In the event the Supplier should not be able to transfer or obtain from a third party the transfer to MHD of all intellectual property rights attached to the Products or Services, it must imperatively inform MHD, in its quotation, of the scope and limits of the intellectual property rights being transferred. In any event, the Supplier must obtain the prior written consent of MHD to this restriction on transfer before accepting any order. The possible negotiation of the transfer of rights of a third party on the Products or Services shall be established by a separate written document between the parties. The Supplier guarantees MHD against any legal actions, claims or proceedings caused by or concerning the rights transferred under the terms of these GTCP.
16.1. For information purposes, the Supplier shall provide MHD with information concerning its manufacturing and inspection processes, and the composition of products used to manufacture the Products and necessary to obtain the quality of the Products being ordered, except for any information considered confidential or pertaining to the know-how of the Supplier.
16.2. In the event the Supplier cooperates with MHD to devise a new Product or Service, technical documents may be created by the Supplier under the supervision of MHD. The Supplier guarantees that it will respect the delivery date of these documents. This delivery date is set before to that of the first delivery of Products or performance of Services, so that the documents can be validated by MHD before the manufacturing starts.
17.1. The Supplier may only subcontract all or part of the order after having obtained MHD’s prior, written and specific consent following the communication to MHD of all documents and information legally required or request by MHD for its approval.
17.2. The Supplier guarantees to MHD that the subcontractors will fully comply with the GTCP and the Supplier will be solely liable for the complete execution of the MHD’s orders. The Supplier undertakes to settle any disputes it may have with its subcontractors, without involving MHD. The Supplier shall irrevocably and unconditionally indemnify MHD at its first request, against all claims, proceedings and other direct actions against MHD by the Supplier’s subcontractors.
Any order takes effect from its acceptance by the Supplier. This date is the starting point for the deadlines for the fulfilment by the Supplier of its obligations. The order expires when the parties have fulfilled their contractual and legal obligations, except in the event of termination as provided for in Article 19 of the GTCP.
Any failure by the Supplier to fulfil any of the obligations set out in Articles 2, 3, 10, 11.2, 12, 13 and 17 of the GTCP justifies immediate cancellation of the order confirmed by a registered letter with acknowledgement of receipt enforcing this clause. Any other breach of the other obligations set out in the GTCP will result in the termination of the order one (1) month following first attempted delivery of a formal notice, stating the non-defaulting party’s intention to enforce this clause, sent via registered letter with acknowledgement of receipt, without prejudice to any damages which the non-defaulting party may claim.
The parties’ obligations will be automatically suspended, without any formalities, and will be released from liability in the occurrence of a force majeure event, as defined in Article 1218 of the French Civil Code. The impeded party will give notice to the other party without delay by any means, with immediate confirmation via registered letter with acknowledgement of receipt. This notice must enable the other party to assess the impact of the described force majeure event on the performance of their contractual obligations. In this case, each party will immediately endeavor to find alternative solutions complying with the contractual balance of the order. If the force majeure impediment lasts over one (1) month after the first presentation of the aforementioned notice, the order will be automatically terminated at the end of this period, except if the parties modify the order by mutual agreement to adapt it to the new circumstances.
As an exception to the provisions of Article L.110-4 of the French Commercial Code, any action brought by the Supplier concerning its trade relationship with MHD will not be taken into account after the expiry of a period of one (1) year as from the occurrence of the disputed event.
Any notification that should be reciprocally made under these GTCP, and unless the GTCP provide otherwise, is validly made by registered letter with acknowledgement of receipt and, in the event of justified emergency by fax, or in the event of interrupted postal service, by any necessary means, with all deadlines running either from the date said letter is delivered or first presented, the indications of the Post Office being taken as proof, or from the remittance date of the notice delivered by another means. Time periods are calculated in accordance with the provisions of Articles 640 et seq. of the French Code of Civil Procedure.
23.1. MHD’s failure to act in the event of non-compliance by the Supplier with one or more of the clauses of these GTCP shall not be considered as a waiver by MHD of its right to invoke them.
23.2. Should one of the clauses of the GTCP be declared null and void or noncompliant with regulations in force, the validity of the other clauses of the GTCP will not be affected.
The Supplier and MHD state that they are independent professionals and none of the provisions of these GTCP are intended or can be construed as challenging their full independence from one another. The Supplier undertakes to continue developing its business activity and contracting partners, in terms of both quality and quantity, throughout its trade relationship with MHD in order to prevent any economic dependence on the MHD. The Supplier undertakes to inform MHD immediately, via registered letter with acknowledgement of receipt, as soon as the Supplier considers that it is in a position of economic dependence on MHD or is likely to become so as a result of the award of a contract to the Supplier by the MHD.
The order is governed by French law, with the express exclusion of the Vienna Convention on the International Sale of Goods and any conflict of laws and international conventions whatsoever that may lead to the application of any other legislation. Were any dispute related to the interpretation or performance of the GTCP and, more generally, all the obligations arising therefrom, to arise, the Supplier and MHD will seek an amicable settlement in good faith prior to any litigation. In the absence of an amicable settlement between the parties within one (1) month of a request for an amicable settlement sent by either party to the other party via registered mail with acknowledgement of receipt, jurisdiction is expressly assigned to the competent court within the jurisdiction of the Court of Appeal of Paris, notwithstanding multiplicity of defendants or warranty claims. In case of any inconsistency between the French and English version of the GTCP, the French version shall prevail.
Contacts : +33 (0)1 41 88 32 00 email@example.com