1. General provisions

These General Terms and Conditions of Sale (hereinafter the “Terms”) describe the rights and obligations of the company ACTIV’INSIDE and of any professional purchaser who places an order with ACTIV’INSIDE (hereinafter the “Client”). These general Terms and conditions of sale shall apply to all sales of Finished Products and Services (as these terms are defines hereinafter) by ACTIV’INSIDE.

Any document other than these Terms, in particular catalogs, leaflets, advertisements, notices, shall only be informative and indicative, not contractual.

The present Terms shall be communicated to the Client upon request and shall be attached to final price quotation, order confirmations and invoices issued by ACTIV’INSIDE; they shall also be available under the link: https://activinside.com/fr/terms-conditions-manufacturing

ACTIV’INSIDE reserves the right to modify its Terms at any time.

2.  Manufacturing of a Finished Product

ACTIV’INSIDE offers a set of services, hereinafter referred to as “the Service(s)”, leading to a product intended to be marketed by the Client (hereinafter referred to as the “Finished Product”).
On the basis of the Client’s specifications, ACTIV’INSIDE can offer the Client several Services, including: contract manufacturing (supply of ingredients, galenic formulation, packaging and packing), R&D services, formulation services, regulatory services, analytical services, marketing services and, in general, all intellectual services aimed at marketing the Finished Product.

The Client shall not claim any right or exclusivity over the formulation of the Finished Product until a specific and express agreement has been concluded with ACTIV’INSIDE on this subject.

3. Order

3.1 Quotation

ACTIV’INSIDE shall provide a preliminary quotation for any request for Services or for the development of a Finished Product by the Client.

Any formulation in the preliminary quotation is subject to confirmation of technical feasibility (ACTIV’INSIDE’s laboratory, scale up…) and subject to potential adaptations.

Once these tests have been made, a final price quotation is drawn up by ACTIV’INSIDE, indicating in particular the definitive conditions of the quotation, including the minimum order volume in the case of orders for Finished Products. In the absence of receipt of a purchase order from the Client conforming to the final price quotation, signature by the Client of the final price quotation shall constitute an order to ACTIV’INSIDE.

Orders are not final until confirmed in writing by ACTIV’INSIDE.

With regard to the volume ordered, the Customer acknowledges that any production includes a variation margin likely to impact the total volume of Finished Products either upwards or downwards. ACTIV’INSIDE will do its best to limit this variation margin.

The Client declares that he has read and understood these terms and conditions before placing an order. The placing of an order by a Client implies the latter’s unreserved acceptance of these Terms, unless special conditions have been agreed in writing by ACTIV’INSIDE.

The terms and conditions applicable are those in force on the date of signature of the final price quotation by the Client or on receipt of the Client’s purchase order, which conforms to the final price quotation.

Any order placed by the Client shall constitute a complete waiver by the latter of any of its own conditions of purchase.

The benefit of the order is personal to the Client and cannot be assigned without ACTIV’INSIDE’s agreement.

3.2 Orders confirmed by ACTIV’INSIDE in accordance with the final price quotation signed by the Client are irrevocable for the Client.

Any request for modification of the order by a Client must be confirmed in writing by ACTIV’INSIDE which remains free to accept or refuse, at its sole discretion.

As the Services and/or Finished Products produced by ACTIV’INSIDE are specific to each Client and established on the basis of specifications, in the event of cancellation of the order by the Client, for any reason whatsoever except in the case of force majeure as defined in article 16 of these Terms, the Client will still owe Activ’Inside :

– 50% of the total amount of the order as compensation in the event that ACTIV’INSIDE has not begun to execute the order,

– the total amount of the order as soon as ACTIV’INSIDE has begun to execute the order.

3.3 ACTIV’INSIDE reserves the right to suspend, delay, modify or cancel an order in case of stock supply problems.ACTIV’INSIDE shall notify the Client as soon as possible of any consequences on the Client’s order.

4. Tariff and prices

The price mentioned in ACTIV’INSIDE’s final price offer is valid only for a maximum of 15 days from its issue, unless otherwise explicitly stipulated in the offer.

The prices do not include taxes and are denominated in euros (€), including packaging costs, and are established notably according to market variations. They are increased by the VAT rate applicable at the time of the order. Any change in the rate may be reflected in the price of the Finished Products.

Unless otherwise specified, ACTIV’INSIDE’s prices are established ex works (incoterm 2020: EXW Beychac et Caillau). Consequently, the costs of collection, transport, any customs duties, insurance costs and any other tax or duty to be paid shall be borne exclusively by the Client.

In the event of special requests by the Client concerning the conditions of packaging or transport of the Finished Products ordered, duly accepted in writing by ACTIV’INSIDE, the costs generated by these services shall be subject to a specific additional invoice.

5. Payment Terms and conditions

5.1 Each order will be subject to an invoice, which will be established in accordance with the provisions of Article L.441-3 of the French Commercial Code. The invoice will be sent by email or mail to the Client at the time the order is made available or the Service is delivered.

5.2For any first order a cash payment will be required to the Client.

For the following orders: a deposit of 50% of the total order amount will be required on acceptance of the final quotation. The balance must be paid within thirty (30) days of the invoice date, unless otherwise agreed in advance and explicitly stated in the order confirmation.

5.3 All payments must be made by bank transfer. After written agreement from ACTIV’INSIDE, other means of payment may be used: accepted draft, LCR, promissory bill, documentary credit ….

No discount is granted for advance payments.

6. Late payment or non payment

6.1 Late or non-payment (total or partial) of sums due by the Client, will result in the immediate payment of all sums owed by the Client, as well as the suspension of the Client’s current orders, without the need for any prior formal notice and without prejudice to any other course of action.

6.2 Any sum (including VAT) not paid on the due date indicated on the invoice will automatically result in the application of a penalty equal to the ECB rate plus 10 points until the day of full payment of the sums due (article L.441-10 of the French commercial code). In addition to the late payment penalties, any sum not paid on its due date will automatically result in the payment of a fixed indemnity of 40€ due for collection costs (article D. 441-5 of the French Commercial Code). If the collection costs effectively incurred are greater than the amount of this fixed compensation, ACTIV’INSIDE may request additional compensation from the Client, upon justification.

6.3 In addition, failure to pay by the due date stipulated on the invoice will automatically result in the payment of an indemnity equal to 15% of the unpaid amount as a penalty clause.

7. Resolutory clause

In the event of non-compliance of a contractual obligation referred to in articles 6, 16 and 17 of these Terms, 48 hours after formal notice sent by registered letter with acknowledgement of receipt, which has remained without effect, the sale will be cancelled as of right and any deposit paid shall be retained by ACTIV’INSIDE.

8. Provision of Products or Services for delivery

8.1 Unless otherwise specifically agreed, all ACTIV’INSIDE sales shall be made “ex works” (incoterm 2020: EXW Beychac et Caillau).

8.2 The Client remains solely responsible for the payment of the transport services necessary for the delivery of the Finished Products

8.3 Delivery of Services or Finished Products to the Client is carried out in accordance with the order either by simple notice of availability sent to the Client by email, or by delivery to a shipper or carrier in the warehouses of ACTIV’INSIDE in case of exceptional delivery by ACTIV’INSIDE.

8.4 ACTIV’INSIDE ensures that the delivery times as indicated on the order confirmation are respected. However, these deadlines are specified only as an indication, and cannot be guaranteed. Any delay in the availability of the Finished Products or the fulfillment of the Services shall not give rise to any penalty or compensation for the Client, nor shall it justify the cancellation of the order.

8.5 The Client must collect the Finished Products ordered within fifteen (15) calendar days of the notice of availability. If the Finished Products are not collected within this period, ACTIV’ INSIDE may automatically charge the Client a fixed indemnity of €50/pallet/week.

9. Risks transfer

9.1 Notwithstanding article 10 of these Terms, the Client shall bear the risk from the time the Finished Products are made available in ACTIV’INSIDE’s warehouses until their final destination, even in the event of an exceptionally agreed « carriage paid » sale.

9.2 Finished Products travel at the risk of the Client, to whom it belongs in the event of damage, loss or missing to make all reserves and to exert all recourse with the carriers responsible, in accordance with the provisions of the article L133-3 of the French Commercial Code.

9.3 The Client also undertakes to take out an insurance policy with a reputable company, guaranteeing the risks of loss, theft or destruction of the Finished Products covered by the order.

10. Retention of title clause

10.1 ACTIV’INSIDE RESERVES THE OWNERSHIP OF THE FINISHED PRODUCTS DESIGNED IN THE ORDER CONFIRMATION, UNTIL FULL PAYMENT OF THEIR PRICE IN PRINCIPAL AND ACCESSORIES, EVEN IN CASE OF GRANTING OF PAYMENT DELAYS. ANY CLAUSE TO THE CONTRARY, IN PARTICULAR INCLUDED IN THE GENERAL CONDITIONS OF PURCHASE, SHALL BE DEEMED TO BE UNWRITTEN IN ACCORDANCE WITH ARTICLE L624-16 OF THE FRENCH COMMERCIAL CODE.

10.2 IN CASE OF TOTAL OR PARTIAL NON-PAYMENT OF THE PRICE AND ITS ACCESSORIES AT THE AGREED DEADLINE, FOR ANY REASON AND FOR ANY REASON WHATSOEVER, ACTIV’INSIDE IS AUTHORIZED BY THE CLIENT TO PROCEED OR HAVE PROCEEDED TO AN INVENTORY OF ALL finished PRODUCTS BELONGING TO HIM, IN POSSESSION OF THE CLIENT, EITHER IN A CONTRADICTORY WAY, OR BY BEING ASSISTED BY A BAILIFF, WHO COMMITS HIMSELF TO LEAVE FREE ACCESS TO HIS WAREHOUSES OR OTHERS FOR THIS PURPOSE AND BY TAKING CARE THAT THE IDENTIFICATION OF finished PRODUCTS IS ALWAYS POSSIBLE.

10.3 THE CLIENT UNDERTAKES TO TAKE ALL NECESSARY PRECAUTIONS FOR THE PROPER PRESERVATION OF THE finished PRODUCTS UNTIL FULL PAYMENT OF THE PRICE. THE CLIENT IS THEREFORE PROHIBITED FROM DISPOSING OF THEM FOR RESALE OR PROCESSING (UP TO THE QUANTITY OF UNPAID PRODUCTS).

11. Warranty

11.1 Non-conformity of the Finished Products at the time of receipt

(a) The Client is required to verify, at the time of receipt, the conformity of the Finished Products with the order, as well as any damage to the Finished Products, it being specified that the weights and measures at the time of departure will be proof of the quantities delivered.

Any product which has not been the subject of precise reservations by registered letter with acknowledgement of receipt within three (3) days with the carrier, in accordance with article L133.3 of the French Commercial Code, a copy of which shall be sent simultaneously to ACTIV’INSIDE, shall be considered accepted by the Client.

After this period, no claim to the Finished Products shall be taken into account by ACTIV’INSIDE.

It shall be the responsibility of the Client to provide any justification as to the reality of the anomalies noted. He shall allow ACTIV’INSIDE every facility to proceed with the observation of these anomalies and to remedy them. He shall refrain from intervening himself or from having a third party intervene for this purpose.

(b) In the event of non-conformity of the Finished Products delivered, duly ascertained by ACTIV’INSIDE under the conditions provided for in (a) and not linked to negligence or fault on the part of the Client, the Client may obtain replacement, supplementation or refund of the Finished Products, at ACTIV’INSIDE’s option, to the exclusion of any compensation or damages.

11.2 Hidden defects in Finished Products not apparent on the day of receipt

(a) In the event of hidden defects in the Finished Products which are not apparent on the day of receipt and which render them unfit for the use for which they are intended, ACTIV’INSIDE’s warranty shall be limited to six (6) months from the from the discovery of the defects, and shall remain subject to the Client sending a complaint by registered letter with acknowledgement of receipt addressed to ACTIV’INSIDE, within a maximum period of five (5) working days from the date of discovery, indicating the date and number of the delivery note, as well as the number of the batch(es) in question. It is expressly agreed by the Client’s acceptance of these Terms that after the expiry of this period the Client may not invoke the non-conformity of the Finished Products or invoke this as a counterclaim in defence of an action for recovery of debts brought by ACTIV’INSIDE.

(b) The Client may obtain replacement or refund of the Finished Products, at ACTIV’INSIDE’s choice, to the exclusion of any compensation or damages.

(c) The return of guaranteed Finished Products must be accepted by ACTIV’ INSIDE beforehand. The returned Finished Products must reach ACTIV’INSIDE, at its expense, in their original condition, without having been opened.

(d) The Client expressly acknowledges that the warranty does not apply if the Finished Product expires before the expiration of the six (6) months warranty period. In this case, the warranty period shall only run until the date of expiration of the Finished Product.

12. Liability and limitation of liability

ACTIV’INSIDE’s responsibility is limited to the supply, production and packaging of the Finished Products in accordance with current European regulations. With regard to the Services, ACTIV’INSIDE undertakes to take all the care and diligence necessary to provide a quality service in accordance with the practices of the profession, but is only bound by an obligation of means.

The Client remains solely responsible for :

• the conformity of the formulation of the Finished Product to all legislative and regulatory provisions applicable in the countries where the Finished Product is sold, and in particular to the compatibility of the ingredients contained in the formulation with each other and with any other products or materials with which they may be in direct or indirect contact.
• verification of the conformity of the packaging and claims made on the packaging and on any other communication media used by the Client for the promotion and sale of the Finished Product in accordance with the legal and regulatory requirements of the country(ies) of marketing
• the suitability of the Finished Products for their intended use, for their use in accordance with good engineering practice, for their preservation and storage, and for the conditions under which the Finished Products will be used in accordance with technical specifications and applicable regulations.
• for ensuring that the use he makes of the Finished Products for resale, alone or in combination with other elements, does not infringe existing patents or any other intellectual property right in the country of destination of the Client’s Finished Product.

Consequently, ACTIV’INSIDE cannot be held responsible for damage of any kind that may result from the non compliance of the Client’s obligations and in particular :

• use which does not comply with the legal and regulatory provisions and/or the specifications and recommendations of ACTIV’INSIDE
• storage of the Finished Products by the Client and/or its subcontractors or service providers in abnormal conditions or conditions incompatible with their nature and the instructions and directives of ACTIV’INSIDE.

In any event, ACTIV’INSIDE’s warranty shall be limited to the replacement of Finished Products found to be defective for a reason for which it is expressly and contradictorily recognized as solely responsible, or to the amount of the order in the case of Services.

In no case shall ACTIV’INSIDE be held liable for indirect or immaterial damage such as commercial loss, loss of orders, damage to brand image, any commercial disturbance whatsoever, loss of profits or Clients, as well as for any claims made by a third party against the Client.

13. Intellectual property

13.1 Except in the case of a formula previously developed by the Client and not modified by ACTIV’INSIDE, or in the case of a specific written agreement between ACTIV’INSIDE and the Client, the formulation present in the Finished Products remains the full and complete property of ACTIV’INSIDE and does not imply any transfer of patent license or any other intellectual property right or know-how to the profit of the Client.

13.2 Any advertisement or promotional operation comprising the trademarks or distinctive signs affixed to the ACTIV’ INSIDE products and created by the Client shall be subject to the prior written consent of ACTIV’ INSIDE.

ACTIV’INSIDE reserves the right to refuse the diffusion of advertising messages that are disparaging or infringe on its brands or other distinctive signs.

13.3 The Client undertakes to respect the intellectual property rights of ACTIV’INSIDE and consequently not to use or register a patent or a trademark identical or similar to the trademarks of ACTIV’INSIDE.

14. Personal Data

14.1   General principles

ACTIV’INSIDE is responsible for processing the Client’s personal data (hereinafter “the Data”).

In general, the information that the Client communicates to ACTIV’INSIDE is intended for the authorised personnel of ACTIV’INSIDE, which is the data controller.

ACTIV’INSIDE undertakes to protect the privacy of the Client by ensuring the protection, confidentiality, non-alteration, availability and security of the Data entrusted to it.

ACTIV’INSIDE undertakes to respect the principle of minimization of data collection.

14.2 Processing and legal basis

The Client’s Data are used for the purpose of processing orders and managing Client relations and commercial prospecting.

14.3 Right of opposition, rectification, limitation and deletion of personal data by data subjects

Pursuant to the Act of January 6, 1978 on Data Processing, Data Files and Individual Liberties, as amended, and the European Regulation nᵒ 2016/679, known as the General Data Protection Regulation (GDPR), the Client has the rights:

• of access,
• of rectification,
• of limitation, for legitimate reasons,
• of opposition, for legitimate reasons,
• of deletion,
• of portability,

with respect to all the Data concerning him.

The Client also has the right to formulate specific or general directives concerning the conservation, deletion and communication of his Data.

The Client can exercise all these rights by sending his request by e-mail to the following address: rgpd@activinside.com

14.4 Duration of retention of Personal Data

The personal data collected by ACTIV’INSIDE will be kept by ACTIV’INSIDE within the time limits imposed by law in order to meet its legal obligations.

14.5 Data processing mode

ACTIV’INSIDE shall handle the Client Data appropriately and shall take all appropriate technical and organizational measures to prevent unauthorized access, disclosure, modification or destruction of the Data.

15. Assignment

The Terms may not be assigned, transferred or transmitted to a third party, for any reason whatsoever, directly or indirectly, in whole or in part, whether in return for payment or free of charge, without the express, prior and written consent of ACTIV’INSIDE. Failing this, the contract may be terminated as of right and to the detriment of the Client.

16. Force majeure

Any unforeseeable and irresistible event within the meaning of Article 1148 of the Civil Code and the case law of the French Supreme Court, which is beyond the control of the parties, which could not reasonably be foreseen at the time of the conclusion of the contract and the effects of which cannot be avoided by appropriate measures, is considered to be a case of force majeure preventing the performance of its obligation by the debtor and results in the suspension of the contract.

The performance of the obligation is only suspended if the impediment to performance is temporary. If the impediment is definitive, the contract is terminated as of right and the parties must be released from their obligations.

The party invoking the above circumstances must immediately notify the other party of their occurrence and of their disappearance.

If the circumstances which oblige one of the parties to suspend the execution of the contract continue for more than three (3) months, either party may request the termination of the contract.

17. Confidentiality

The Client undertakes to guarantee the confidentiality of all confidential information exchanged with ACTIV’INSIDE in the performance of the present contract and in particular (without this list being limitative), its sourcing, price quotations, formulations and recommendations. Consequently, this confidential information shall not be copied or reproduced and shall only be used for the purposes of the present contract. Client shall ensure that all of its employees, subcontractors and any other person involved in the performance of this sale agreement comply with this confidentiality obligation.

This obligation of confidentiality does not apply to the part of the information :

• that is publicly available at the date of its communication by the issuer to the recipient, or that may become publicly available after that date through no fault of the recipient;
• already known to the recipient at the time of its communication by the issuer;
• transmitted to the recipient with an express waiver by the sender of the obligation of confidentiality;

This obligation of confidentiality shall continue after the end of the business relationship for any reason whatsoever, for a period of three (3) years.

18. Non waiver

The fact that ACTIV’INSIDE does not claim at a given time the application of any of the provisions of these Terms may not be interpreted as a waiver of its right to invoke any of the said provisions at a later date.

19. Convention of proof

Documents in electronic form exchanged between the parties shall be evidence, provided that the person from whom they emanate can be duly identified and that they are drawn up and stored under reasonable conditions to guarantee their integrity.

20. Applicable law and jurisdiction

20.1 These Terms and the purchase and sale transactions arising from them are subject to French law.

20.2 The French version of these Terms shall prevail over the english version.

20.3 In case of any dispute, ACTIV’INSIDE and the Client shall seek an amicable agreement.

20.4 IN THE ABSENCE OF AMICABLE SETTLEMENT WITHIN TWO (2) MONTHS, ANY DISPUTE RELATING TO THE INTERPRETATION, FORMATION OR EXECUTION OF AN ORDER, WILL BE BROUGHT BEFORE THE COMMERCIAL COURT OF BORDEAUX, EVEN IN CASE OF APPEAL IN WARRANTY OR PLURALITY OF DEFENDANTS.