Failing particular agreements accepted in writing, all equipment is sold under the general sales terms defined herein below. Any order given implies the Purchaser’s knowledge and acceptance thereof.
August 2020 TERMS AND CONDITIONS
1. Scope
The Services, the supply of equipment and any commercial, contractual or pre-contractual relationship between EIFFAGE ENERGIE SYSTEMES (hereinafter “EES”) and the Client shall be subject to these Terms and Conditions. The Client acknowledges that it is aware of and agrees with such Terms and Conditions. Any reservation to the Terms and Conditions shall be formally stated in writing. The fact that EES does not exercise a right hereof shall not be deemed to be a waiver of that or any other of its right.
2. Definitions
2.1. Client: co-contractor, beneficiary of the works and/or Services and/or equipment supplied by EES.
2.2. Contractor: refers to the Company EES and any affiliate of the group EES applying these Ter ms and Conditions.
2.3. The terms Client and Contractor hereinabove includes their agent, their representatives, employees or not, and their successor.
2.4. The Offer refers to any written proposal of Services submitted by the Contractor to the Client, regardless of the form: such as quotes, proposals, etc….
2.5. Service refers to any Service of supply, installation, deployment, development, works and/or any other Service defined between the Contractor and the Client,
2.6. The Order is the result of negotiations and communications between the Contractor and the Client who exchanged their respective documents such as the General Conditions of sale and general conditions of purchase. Order refers to : -either the offer of the Contractor accepted by the Client, -either a purchase Order by the Client, -either any other form of commercial commitment coming from the Client, in particular the signed attachments or work orders made in the reports of construction sites. (In such case, the term Client shall refer to the Owner, the delegated Owner, the Engineer/project manager, the architect…)
3. Constitution of the offer – deadline of option
The Offer is submitted by the Contractor based on the written information given by the Client; such information being deemed accurate and complete. The Offer of the Contractor constitutes the integral agreement between the parties. The Offer is valid during thirty (30) calendar days following its issuance date. The Contractor shall contribute to a pro-rata account only if it has been expressly accepted at the time of the submission of the Offer, or of the acceptance of the Order and that an agreement is submitted to be signed.
4. Modifications to the order
Prices and deadlines are always agreed for execution in accordance with the provisions of the Order. The Contractor shall not be committed for additional supplies and Services. The Contractor reserves its right to replace all or part of its planned supplies and Services with supplies and Services of equivalent or higher quality even if the latter is obtained by different means. If, during performance, the Client makes changes in the specification or characteristics of the materials and equipment, drawings, any performance and/or acceptance conditions, within the scope or nature of the Services, the possible cost of such additions, modifications… Insofar as they have been accepted by the Contractor, shall be borne by the client. These amendments may also justify, if necessary, an extension of the time limits initially provided for. Any special condition must, in order to be enforceable against the Contractor, have been confirmed in writing by the Contractor.
5. Formation and entry into force of the contract
The contract is formed by the Offer of the Contractor and its annexes, including in particular the following documents: -the Offer itself in the meaning of the Article 2.4, -the technical specifications that have to be respected in the works and/or Services object of the Contract, -the present Terms and Conditions, -the potential documents given by the Client under Article 3. The documents of the Offer prevail over these Terms and Conditions, and each document prevail over the next one, in the order of priority mentioned above. The Client expressly waive the application of its general conditions of purchase at the entry into force of the Contract, notwithstanding any contrary clause, and no matter when such general conditions of purchase were sent to the Contractor. The Contract is entered into, and the parties formally bounded, either: at the acceptance of the Contractor’s Offer by the Client during its period of validity of one (1) month following its issuance date, or at the express or tacit acceptance by the Contractor of the purchase Order coming from the Client.
6. Intellectual and industrial property
The intellectual property of projects, software products, programs, studies and designs shall remain the property of the Contractor. These shall not be used, communicated, reproduced or performed, even partially in any way possible, without the express and written authorisation of the Contractor. In case the order is not given to the Contractor, any document provided by its teams shall be returned to the Contractor imperatively within a period of thirty (30) days. In case the conception/design and/or execution of works are carried out by the Client, the specifications of such works appearing in the proposal of the Contractor are provided for information purposes only.
7. Conditions of execution of the services and the supply of equipment
7.1. Acquisition of the required permits and consents: -prior to the execution of works, the Client shall have obtained every required administrative authorisation for the execution of works. -the Client shall warrant the Contractor from the consequences of the legal actions that could be brought by the Administration or third parties against the Contractor because of the breach by the Client of its obligations.
7.2. Health and safety: The Client shall not be able to constraint the Contractor to work in conditions of health and safety that are non-compliant with the applying rules. Every cost of compliance upgrade with these rules as well as those related to the introduction of new procedures and/or equipments related to a health-related crisis will be the responsibility of the Client.
7.3. Presentation of equipment and demonstration plants: In case the Client requires a presentation of equipment, it shall have one (1) month to make its choice. The discarded equipment shall be charged to the Client. In case of achievement of demonstration plants, the Client shall define its project in a way that allows the Contractor to intervene only once to achieve it.
7.4. The Client shall be in charge of the coordination and the elaboration of the required overview plans and studies for the whole performance of the Works. These plans and studies shall be provided to the Contractor in a period which is consistent with the agreed intervention schedule, so that it can include its own Services. Any plan or drawing submitted to the approval of the Client by the Contractor shall be deemed accepted by it, unless the Client notifies its disagreement in a period of eight (8) calendar days.
8. Representation of ees during the execution of services
The representative, designated by the Contractor, is entitled to sign any attachment, observation, minutes of acceptance, and in general, any document related to the execution of Services, but is not entitled to accept variation or additional Services requested by the Client and not confirmed by a written Order.
9. Consistency of services
The nature and the scope of Services or the nature and quantity of sold equipment, are precisely and restrictively defined in the Contract. If the Client request the execution of additional works, it shall be the subject to an amendment or an Order. The Contractor shall be entitled to modify the supply of equipment asked by the Client by equivalent or similar.
10. Periods
The Contract mentions the execution times. In case of delay not attributable to the Contractor, the contractual period is automatically extended by the incidence of this delay.
11. Liquidated damages
The failure to comply with the contractual deadlines because of a breach or a failure from the Client constrains it to take in charge the costs of staff, rental of equipment, stocking and more generally any cost set out by the Contractor to overcome the delay. The suspension of works by the Client will automatically induce the payment of the Services already performed. Delay liquidated damages can be claimed to the Contractor only if its have been expressly stipulated between the parties and only after the receipt of a registered letter specifying the nature of the claims against the Contractor. The amount of delay liquidated damages due by the Contractor in case of delay in the execution of its Services is, in any case, limited to three (3) % tax-free of the total amount of the Services. Every penalties and liquidated damages that may be specified are lump sum damages. Any delay liquidated damages is expressly excluded in case of sale of equipment.
12. Acceptance of services or of deliveries of equipment
12.1The acceptance of the Services shall take place in the presence of the Contractor at the date and according to the modalities contractually agreed. It intervenes at the demand of the most diligent party, amicably, or, failing that, judicially. It is in any case pronounced jointly. Acceptance of part of the works, occurring gradually along with the completion of such if the Contractor asks for it. Nevertheless, the take-over and/or operation, by the Client, of the Services, in the absence of acceptance certificate, constitute an acceptance without reservation. The acceptance of Services is the starting point of contractual and/or legal warranty and of the validity period of the retention money, bonded or not.
August 2020 In case of non-payment of the Services by the Client, the Contractor shall be entitled to prevent the Client to access the Services, and seal such Services after a notice sent to the Client to fulfil its contractual obligations of payment under fifteen (15) days remained unsuccessful. 12.2Acceptance of deliveries of equipment: The equipment shall be deemed accepted by the Client as soon as it has been delivered at the delivery address or that the Client came to withdraw it. Unless reserves expressly formulated in writing by the Client, during the delivery, the equipment delivered by the Contractor shall be deemed in compliance with the Contract.
13. Transfer of risks – retention of title
It is expressly agreed that the Contractor keeps for itself the property of the sold works until the full payment of the price by the Client. Nevertheless, the sold equipment shall be carried at the risk of the Client who bears the risks of loss, theft or destruction. In the absence of payment at the due date, of part or of the total price, the sale shall be rescinded at the Contractor will and material shall be returned without delay to the Contractor on first demand and without delay.
14. Warranty
14.1. Warranty period The completion warranty, of a period of twelve (12) months, starts on the acceptance of Services. In case of sale of equipment, the Contractor shall guarantee them for non-compliance and latent defect during a period of six (6) months starting on their delivery.
14.2. Limits of warranty
The warranty granted by the Contractor shall not apply if the defect comes from another cause than those mentioned in Article 14.1 hereinabove, in particular in case of normal wear and tear, from a cause attributable to the Client or its clients (such as negligence, maintenance or monitoring failure, abnormal or non-compliant to the prescriptions), from a case of force majeure, from a fortuitous event, from deterioration caused by or attributable to third parties or any other cause non- attributable to the Contractor. During the guarantee period, the obligations of the Contractor is limited to supply or repair, to its costs, any element showing a defect that has been proven by the Client to be attributable to the Contractor.
14.3. Implementation of the warranty To benefit from the warranty mentioned hereinabove, the Client must inform in writing the Contractor within an eight (8) calendar days maximum period starting on the discovery of the defects, and provide any justification as for the reality of these one. Any claim and any action related thereto shall be excluded beyond such period. The Client must facilitate the procedure for the Contractor to see the defects and to find a solution. Unless expressly approved by the Contractor, the Client shall not have the repair or replacement performed by a Third party. Otherwise, any right or remedy under guarantee shall be deemed lost. Any repair or replacement performed in accordance with the warranty shall not extend the warranty period.
15. Price
All prices are revisable and updatable. Any change of the tax system for the Contract prices, between the date when the price was agreed upon and the invoicing date is, automatically, immediately and entirely passed on the Client. It has already been agreed that as a result of circumstances relating to a pandemic, epidemic or changes in regulations should the balance in contractual relationship change to an extent that the performance of its obligations becomes prejudicial or impossible for one of the Parties, the Parties will ratify, by amendment to the Contract, the measures necessary to ensure a new economic balance.
16. Conditions and means of payment
16.1. Unless particular provisions, the invoicing of the total price shall be in the amount of: -30% when the Order is made -70% in accordance with the progression of the Services and supplies or at the delivery of the equipment.
16.2. Only the retention money shall be retained and released at the issuance of a joint and several bank security and its amount shall not exceed 5% of the tax-free amount of the Services or sold Equipment.
16.3. The Client shall pay the amount on any invoice within thirty (30) days from the issuance date of the invoice. Penalties for late payment are due automatically, the day after the due date mentioned on the invoice, without prior reminder, and without prejudice to any other action the Contractor could bring against the Client in this respect. The rate of interest of late payment penalties is equal to the interest rate applied by the European Central Bank to its most recent refinancing operation increased with ten (10) percentage points. Such penalties for late payment are due by the Client without further formality until the full payment of the amount due to EES.
16.4. In case of delay of payment, added to the penalties mentioned hereinabove, a flat-rate compensation of forty (40) € for recovery costs is due by the Client, without prejudice of the implementation, upon justification, of an additional compensation if the recovery costs incurred by the Contractor exceed forty (40) €.
16.5. Any payment of the sums due to the Contractor shall be made by cheque or bank transfer, net and without discount.
17. Liability – insurance
The liability of the Contractor is strictly limited to the direct damages incurred by the Client and exclusively attributable to a fault of the Contractor in connection with the execution of the Contract. The Client is solely responsible for the use of the equipment or the works object of the Services by its personnel, employees or Third parties. The Client is also solely responsible for the consequences of the use of the equipment and works object of the Services that are not compliant with the conditions, uses and/or to other recommendations of use provided by the Contractor. The Client undertakes to waive any right and remedies on behalf of its insurers against EES, or the Contractor’s insurers, in accordance with the limitations provided hereinabove.
18. Termination
18.1 The Order shall be terminated by one party for a breach by the other party of one or more obligations provided by the Order in case of persistent failure after a period of fifteen (15) calendar days after receiving a notice to do so sent by registered letter.
18.2 The Order shall be automatically terminated, after a notice remained unsuccessful, in case of delay of payment of more than sixty (60) calendar days.
19. Force majeure
Neither party shall be responsible regarding the other for failure or delay to execute its obligations in case of Force Majeure, as defined in Article 1218 of the French Civil Code. The party subjected to such event inform the other as soon as possible by electronic mail confirmed by registered letter, and then the parties discuss the consequences to give to the Order. In case of disagreement between parties or in case the suspension would be likely to last more than three (3) months, and the effects of the event cannot be removed or overcome, the Order will be automatically terminated at the request of one of the parties.
20. Assignment – subcontracting
Each party shall undertake to make their respective subcontractors and other suppliers fulfil its commitments. The Contractor shall be entitled to subcontract all or part of the Order in the conditions of the law n°75-1334 of December 31, 1975 related to subcontracting. In addition, the Contractor will be able to freely assign or subcontract the overall or part of the Order to any company of the Group EIFFAGE and shall inform the Client as soon as possible.
21. Ethics
The Contractor warrants that it complies and will comply with all national, European and international regulations in force regarding bribery, influence peddling, competition law, favouritism, and money laundering, and notably: -the French “Sapin II” Law of 9 December 2016, -the OECD Anti-Bribery Convention of Foreign Public Officials in International Business Transactions of 17 December 1997, -the United Nations Convention against Corruption (UNCAC) of 2003. More generally, each party recognizes knowing the commitments of the Group EIFFAGE, which EES belongs to, regarding ethics and sustainable development as they are stipulated in the Ethics and Commitments Document, published on its website www.eiffage.com. Each party shall undertake to fulfil such obligations.
22. Protection of personal data
The Contractor shall, in case of access/use of personal data (Data): -comply with any legal and regulatory obligations regarding the protection of Data. -not reveal any Data and make sure that all its employees, subcontractors and suppliers know and respect the rules regarding the confidentiality and protection of Data. -take measures of security required protecting Data against destruction, the accidental lost, the modification, the disclosure or non-authorized access. -notify the Client as soon as possible, in case of detection of a security breach. -if any, process Data within the European Economic Area. -destroy or return to the Client every documents and files including Data once the processing is achieved.
23. Disputes
Any dispute that couldn’t be solved amicably shall be the exclusive competence of the competent court of the place of execution of the Services or of the place of delivery of the equipment.
