I. SCOPE OF APPLICATION
The subject matter of these Terms of Purchase is to define ENERIA’s expectations regarding terms and conditions of purchase of products and/or services. They are proposed in connection with the negotiations conducted with the supplier (the “Supplier”) to establish the terms and conditions that will govern ENERIA’s orders. When accepted by the Supplier, these Terms of Purchase will constitute, either as they are or modified by an amendment signed between the parties, a contractual document.
II. ACCEPTANCE OF THE ORDER
The Purchase order issued by ENERIA will be deemed accepted by the Supplier upon occurrence of the earliest of the following events:
III. PRICE AND TERMS OF PAYMENT
The price to be paid is as specified in the Purchase order, excluding VAT at the rate in force when the corresponding invoice is drawn up. It is firm and non-revisable. This price includes all costs and expenses, including taxes, duties and fees, incurred by the Supplier for the sale of the products and/or the services. The Parties hereby expressly waive their right to invoke the provisions of Article 1195 of the French Civil Code.
Unless otherwise stipulated, the Supplier’s invoices shall be paid 45 days from the end of the month in which the invoice is issued.
All invoices will be sent to the following address :
ENERIA
Comptabilité Fournisseur
Rue de Longpont –
BP 10202
91311 Montlhéry Cedex
In addition to the information required by the laws and regulations, the Supplier undertakes to include the following information in all the invoices it issues:
Order Number:
The invoice must always include an order number
The order number must be shown on your invoice,
Mandatory Supplier’s information:
For credit notes, please specify the invoice number on the document. Invoice document must be unique.
This information is required to identify you.
In the event of billing items are subject to different VAT rates, each rate must appear on the invoice. In case of exemption, please specify the reference to the relevant provision of the French Tax Code (CGI).
If the invoice has been assigned to a factor, write the word “assigned” and the factor’s bank details.
The invoice must be denominated in the same currency as our order.
Country of manufacture and customs code
ENERIA may, by operation of law, offset any claims it may have against, and any sums it owes to the Supplier, whatever the form of such claims or sums.
In the event of late payment, late payment interest shall be due from the day following the payment date shown on the invoice. The interest for late payment will be equal to 3 times the legal interest rate applicable in France. In addition, and in accordance with the law, in the event of late payment, ENERIA shall, by operation of law, be liable to a fixed indemnity for recovery costs in the amount of 40 euros.
IV. DELIVERY
Each delivery of a product or service must be accompanied by a delivery slip containing the following information:
Unless otherwise provided for in the order, the delivery of the product will be at delivery to ENERIA’s premises. The acceptance by ENERIA of products and/or services is carried out at delivery, and as the case may be when they are installed or commissioned, being specified that such acceptance shall not constitute a final acceptance by ENERIA, which reserves the right to refuse any products or services that are not compliant with the order. The Supplier shall remain responsible for the conformity of the products and/or services both in terms of quality and quantity.
V. TRANSFER OF OWNERSHIP AND RISKS
Ownership and risks are transferred to ENERIA on the date of actual delivery or upon signature of the acceptance certificate if acceptance is provided for in the contractual documents.
VI. SHIPMENT
Products shall be shipped with sufficient protection to ensure they are not damaged during shipment and storage. Each parcel must be clearly marked. Products shall be packaged under the responsibility of the Supplier, in accordance with the regulations in force and according to the best practices used by industrial packers. The Supplier shall bear all the consequences of defective, insufficient or inadequate protection, packaging or marking of the products.
VII. RESPECT OF LEAD TIMES
The stipulated lead times are essential. In case of delay, the Supplier shall pay penalties equal to 2% of the total amount of the order per calendar day of delay. The parties may stipulate a different rate as a special condition. For any delay, the Supplier will be sent a penalty notice containing the information relating to the order number, the nature of the incident and the damage suffered. The Supplier has a period of three (3) days from the receipt of the notice of penalty and the attached documents to contest in writing the amount of penalties to ENERIA and must justify this dispute. In the absence of a challenge to the penalty notice and proof of this challenge, ENERIA may issue an invoice or a debit note to the Supplier. The payment period for the invoice or debit note is the same as that provided for invoices relating to the sale of services.
If the damage suffered by ENERIA as a result of delivery delays exceeds the penalties for delay, ENERIA is entitled to claim full compensation for the damage suffered as a result of such delays.
If ENERIA does not accept the exceeding of lead times specified in the order, ENERIA reserves the right to:
VIII WARRANTIES
The Supplier warrants that all products and/or services supplied in connection with the order are new and free from any defect in design, structure, manufacture or installation and comply in all respects with the requirements of the Purchase order and all applicable laws, regulations and other standards applicable to the products and/or services; are covered by all warranties provided for in the order and by the law and regulations; are merchantable; are of superior quality and, where applicable, made of top-grade materials; and are suitable for the use for which they were originally designed and for which they were ordered by ENERIA. ENERIA may, at any time and within reason, check all products and/or services to be supplied by the Supplier in connection with the Purchase order, including in the Supplier’s and/or its subcontractors’ premises.
Without prejudice to any of the rights vesting in ENERIA by virtue of the applicable laws and regulations, including regarding latent defects, the Supplier undertakes, at any time before the expiry of a period of twenty-four (24) months from the delivery of products, to promptly repair or replace, at ENERIA’s option, any defective products at the Supplier’s sole expense and risk, and to bear all costs and expenses incurred by ENERIA as a result of such defect, including those of repair and/or replacement of any adjacent works.
IX LIABILITY – INSURANCE
The Supplier is liable and agrees to indemnify ENERIA for any material and/or immaterial damage, direct and/or consequential loss and/or bodily injury caused to property or persons arising from or in any way connected with a defect, omission, fault and/or negligence of the Supplier or its employees, servants, agents or subcontractors in the performance of the order, suffered by ENERIA, as well as by any third party and for any loss, charge, damage and/or expense or expenditure, including those incurred by ENERIA in procuring replacement products or services of the same type and quality. The Supplier is also liable to ENERIA, as a subject matter specialist, for providing information and advice.
The Supplier represents that it has subscribed, on its own behalf and on behalf of any of its subcontractors, an insurance with a company known to be solvent guaranteeing against any financial consequences of civil and public liability due to or arising from the Supplier or its subcontractors’, as a result of bodily injury, material and/or immaterial damage or direct and/or consequential loss, whatever the cause, incurred by ENERIA and any third party during and after the performance of the order, as well as all other insurance policies necessary to performance of the order. The Supplier undertakes to send to ENERIA insurance certificates issued by its insurer before the start of execution of the order and to promptly communicate a new certificate in the event of a change of insurer or renewal of its insurance policy during the execution of the order.
X CONFIDENTIALITY
All information communicated by ENERIA to the Supplier concerning the execution of the order is confidential. It may not be used by the Supplier or disclosed to any third party without a prior written consent of ENERIA. The same shall apply for all documents such as execution drawings, sketches, plans, mock-ups that have been provided by ENERIA to the Supplier or that may be produced by the Supplier for the execution of the order, and that are or will remain the property of ENERIA by operation of law. The Supplier must take all necessary measures to ensure compliance with this confidentiality clause by its employees, subcontractors and potential suppliers.
XI SUBCONTRACTING – ASSIGNMENT
If the Supplier intends to use one or more subcontractors for all or part of the order, it must inform ENERIA in advance and in writing and comply with the requirements provided by law and in particular by Law No 75-1334 of 31/12/1975.
The Supplier shall not assign this order to any third party without a prior and express consent of ENERIA.
XII SUPPLIER ‘S EMPLOYEES
Hiring of staff in compliance with the law
The Supplier undertakes to comply with all its legal obligations and to fully comply with any applicable legislation in terms of employment and social security law, as well as any other binding regulations relating to the work of the personnel assigned to the order performance.
The Supplier will spontaneously produce all documents, necessary for ENERIA to meet its obligations under the provisions of French law, within the period allowing ENERIA to comply with said obligations, these documents shall be drawn up in French or accompanied by a French translation.
The Supplier warrants that it shall:
Furthermore, ENERIA encourages the Supplier to commit to non-discrimination and diversity to promote equal opportunities, including for disabled workers.
Staff management
The Supplier’s staff shall in all circumstances remain under the hierarchical and disciplinary authority of the Supplier, entitled to issue directives and instructions as an employer. The Supplier shall be solely responsible for the recruitment, training and supervision of its staff assigned to the order performance. The Supplier warrants to remunerate its staff in accordance with its obligations.
XIII HEZLTH AND SAFETY
Applicable rules
The Supplier undertakes to comply with all its legal obligations and to fully comply with any regulatory requirements as regards health and safety obligations.
If all or part of the services are rendered at the ENERIA site, the Parties undertake, so as to ensure the safety of persons and property, to strictly meet the obligations arising from Articles L4121-5, R4511-1 et seq. of the French Labour Code imposed on them as well as orders, decrees or other regulatory sources considered by these Regulations. More generally, the Parties acknowledge as applicable all additional or replacement professional standards in force at the date of execution of the services, relating to health and safety. In this regard, the Parties also acknowledge as applicable to the services, the provisions relating to health and safety at work contained in ENERIA’s internal rules as well as procedures relating to the same, previously brought to the Supplier’s attention.
Prevention plan/Safety Protocol: The Supplier shall take all measures to ensure compliance with the procedures relating to the prevention plan and safety protocol as follows:
PREVENTION PLAN: In accordance with the provisions of the French Labour Code – Article R 4511-1 et seq. and any amendment or replacement provisions, the Supplier agrees to:
SAFETY PROTOCOL: In accordance with the Order of 26/04/1996 made under the Article R 4511-1 of the French Labour Code, the loading or unloading operations carried out by the Supplier transporting the products, from or to a place outside the ENERIA premises, must be subject to a written document called “Safety Protocol”, replacing the “Prevention Plan”.
The Supplier shall take all measures to ensure, under its own responsibility, the medical supervision of its staff, in accordance with the Law of 11 October 1946.
It is expressly agreed that ENERIA may require the interruption of any service that does not comply with the safety rules or, more generally, the Prevention Plan, as well as the expulsion from its site of Supplier’s staff in the event of serious breach of these rules, without notice or prejudice to other actions available to it under the order or law and without the Supplier being entitled to any compensation whatsoever.
XIV COMPLIANCE WITH THE REGULATIONS
The products delivered and services rendered must comply with the legal and regulatory requirements in force in the country for which they are intended, both EU/international and/or national, in particular with regard to health and safety, the environment and employment law.
In this respect, the Supplier undertakes to ensure that the products delivered, including tools and equipment necessary for the performance of related services,comply with requirements of the Machinery Directive 2006/42/EC and the Regulation (EU) 2023/1230 of the European Parliament and the Council dated on June 14, 2023 on machinery, as well as any text that may replace,supplement or amend it.
For all deliveries of products containing certain substances of concern, the safety data sheet or safe use information, whichever applies, must be provided in accordance with applicable regulations. All documents and certificates must be delivered at the same time as the delivery and are an integral part of the delivery.
With special regard to Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), including any amendments, and Directive (EU) 2018/851 of the European Parliament and of the Council of 30 May 2018 amending Directive 2008/98/EC on waste (Waste Framework Directive / WFD) the Supplier warrants to ENERIA that the products are supplied in compliance with the applicable provisions, including but not limited to:
For the purpose of compliance with these provisions, the Supplier should adhere to the applicable interpretations and guidelines, including but not limited to the judgment of the Court of Justice of the European Union “CJEU” of 10 September 2015 in case C-106/14 and requirements / guidelines issued by ECHA on REACH and SCIP notification. For the avoidance of doubt, SDSs and REACH Article 33(1) information, where applicable, should also be provided by the Supplier, if the Supplier is established outside the EU/EEA (European Economic Area).
Furthermore, the Supplier shall collaborate with and provide to ENERIA the information required by it to enable ENERIA’s own compliance with REACH and WFD/SCIP obligations. For the avoidance of doubt, such information includes the following elements as a minimum:
XV INDUSTRIAL AND INTELLECTUAL PROPERTY
ENERIA shall have a right to a free and free-of-charge use concerning all intellectual property rights relating to the products and services as follows: all intellectual property rights in the deliverables performed for ENERIA as part of an order (including the right to reproduce and represent concerning any media whatsoever and as many times as it wishes or to modify the deliverables) are exclusively transferred to it as and when they are completed, automatically and without formality, for the legal duration of protection of the rights and for the whole world. The prices defined between the parties include this transfer of rights.
The Supplier shall indemnify, hold harmless and defend ENERIA from and against any action by third parties resulting from infringements of intellectual property rights relating to the deliverables, products and/or services and is liable to ENERIA for any loss or damage resulting therefrom, including legal costs.
The order does not grant to the Supplier any right, total or partial, of any nature whatsoever, to the names “ENERIA”, or “CATERPILLAR” or “CAT” (taken alone or jointly, or as part of any other word or name) or to any trademark, name or logo of ENERIA or CATERPILLAR or any of its related or affiliated companies, including, without limitation, any right to use them (i) in any of its own advertisements or promotional campaigns, (ii) to express explicitly or implicitly any guarantee given by ENERIA to the Supplier’s services, or (iii) in any other manner (similar or not to the specifically prohibited purposes above).
XVI PERSONAL DATA
In the context of their contractual relations, the parties may disclose personal data relating in particular to their staff (including their name, title, signature and email address). In accordance with the personal data regulations, the parties undertake not to use the personal data for any purpose other than those necessary for the performance of the order. The parties furthermore undertake to store the personal data for no longer than it is necessary in relation to the purposes for which they are processed.
Each party will use adequate physical, administrative and technical control to protect such personal data from accidental or unlawful destruction, accidental loss, alteration, disclosure, unauthorised access, in particular over the Internet, and unlawful processing, in accordance with its privacy statement. In all cases, each party will use its best efforts to comply with current industry best practices regarding the privacy and security of personal data.
Persons whose data are processed have a certain number of rights, including the right to access and rectify their data. They may exercise their rights by writing to: MONNOYEUR Group DPO, 117 rue Charles Michels – 93200 Saint Denis or contact dpo@monnoyeur.com
XVII ECONOMIC DEPENDENCE
The Supplier is bound to immediately inform ENERIA of any risk of economic dependence. This reporting obligation is essential to enable the parties to maintain balanced relations and their respective independence. In this respect, the Supplier must notify ENERIA in the event of:
XVIII ETHICS/SOCIAL AND ENVIRONMENTAL RESPONSIBILITY (SER)
The MONNOYEUR Group, to which ENERIA belongs, has adopted a “Code of Ethics and Good Conduct” available at https://monnoyeur.com/wp-content/uploads/monnoyeur-code_d-ethique__-de_bonne_conduite_2022.pdf, and has implemented a Responsible Purchasing Charter incorporating in particular the commitments of the United Nations Global Compact, to which the MONNOYEUR Group is a signatory.
The Supplier undertakes to conduct its business, as well as its corporate strategy, under conditions compatible with the commitments in the Code of Ethics and Good Conduct and in the Responsible Purchasing Charter. The MONNOYEUR Group also commits the Supplier to respect and promote the ten principles of the United Nations Global Compact in terms of human rights, working conditions, environmental protection and the fight against corruption.
In this respect, the Supplier represents and warrants that it complies with and enforces, in particular in connection with the performance hereof, national and international treaties, agreements, laws and regulations and the fundamental principles applicable to business ethics (including corruption, conflict of interest, trading in influence, unlawful acquisition of an interest, favouritism, unlawful payments, money laundering and combating terrorism, financial transparency and honesty of information, competition law, public procurement rules, export control, product regulations and environmental law).
In particular, the Supplier will implement waste management policies (optimization of waste reduction: recycling, recovery, reuse and waste sorting), health and safety (analysis of activity risks for employees, identification of risks and provision of individual and collective protective equipment and access to safety training), environment (compliance with ISO 14001 commitments on environmental management).
To ensure the Supplier complies with all these principles, the Supplier agrees to participate in an evaluation of its practices. In the event that the evaluation does not reach the required level, the Supplier must implement a corrective action plan, which will be subject of an evaluation. The Parties agree that ENERIA will make its best efforts to support the Supplier as part of the implementation of its corrective action plan.
XIX TERMINATION OF THE ORDER
This order may be terminated, by operation of law, by ENERIA:
XX FORCE MAJEURE
If the performance of either party’s obligations, set forth herein and/or in the Purchase order, is delayed or prevented, in whole or in part, by the occurrence of a force majeure event, as defined by French law or French case law (hereinafter the “Force Majeure”), the party so prevented shall be exempted, excused and discharged from the performance of its obligations, to the extent that it is compromised or prevented by the Force Majeure, without incurring any liability.
The party so prevented shall notify the other party of any event which may give rise to the Force Majeure within 15 (fifteen) days of the occurrence of such event. Within ten days of such notice, the prevented party shall provide the other party with evidences that such event is the Force Majeure and its probable duration; and it shall notify the other party of the end of the event within 3 (three) days of the date on which the Force Majeure ends.
If, however, such Force Majeure exceeds a period of 1 (one) month, the creditor of the obligation affected by the Force Majeure event may terminate this Agreement upon a written notice.
XXI GOVERNING LAW – DISPUTES
The present Terms of Purchase as well as the Purchase orders are governed by French law.
Any litigation or dispute will be subject to the exclusive jurisdiction of the Commercial Court of Paris, France.
Share capital: | €10,000,000 |
Legal form: | SAS [French simplified joint stock company] |
NAF or APE: | 3312Z |
SIRET (registration No): | 352 774 079 00029 |
SIREN: | 352 774 079 |
European Union VAT No: | FR 63 352 774 079 |
Address: | ENERIA RUE DE LONGPONT – 91311 MONTLHERY CEDEX |
A simplified joint stock company (société par actions simplifiée) with share capital of €10,000,000, EU VAT identification number : FR 63 352 774 079, registered in – R.C.S. Evry 352 774 079 316
I. SCOPE
According to the legal provisions in force, these general terms and conditions of sale, as they may be amended or completed by the specific terms and conditions of the order, shall be the sole terms and conditions governing the contractual relations between ENERIA and the Customer. They shall apply to all sales of equipment, accessories or spare parts, hereinafter referred to globally as “equipment”, the Customer waiving the application of its own general purchase conditions. The acceptance of an order under these general terms and conditions shall be deemed to be fixed on the occurrence of one of the following events: signature of the order by the Customer, absence of observations by the Customer concerning these general terms and conditions within a period of eight days as of the date of proof of receipt of the order, start of performance of the order.
II. PRECONTRACTUAL INFORMATION
The technical information is given to the Customer for use of the equipment in accordance with its purpose and the needs of the Customer and are included in ENERIA’s offer. It serves as pre- contractual information. Any specific use of the equipment must be brought to the attention of ENERIA.
III. PRICE
The prices communicated at the time of the order and accepted by the Customer are subject to changes beyond the Supplier’s control that may impact the overall price communicated, including changes in legislation or regulations, changes in the price of raw materials, exchange rate fluctuations, customs duties or taxes.
Payment of the price means effective collection.
IV. TRANSFER OF PROPERTY AND RISKS
The equipment shall remain the property of ENERIA until full payment of the price by the Customer (articles 2367 and 2368 of the French Civil Code). Failure to abide by any one of the payment dates may give rise to a claim for the unpaid equipment. However, the risks connected to the equipment shall pass to the Customer on delivery. In the event of resale of the equipment before complete payment, the Customer will have to inform the third party purchaser of the existence of the clause of retention of property for the benefit of ENERIA, and he refrains from transforming the equipment or incorporate it into another property without the prior consent of ENERIA.
V. PAYMENT TERMS
Unless provided otherwise in the specific terms and conditions, the price is payable 8 days from the date of issue of the invoice..
Whenever the payment of the price is the subject of payment facilities in favour of the Customer, either at the time of the order or at a later date, it is agreed as follows:
a) The Customer may not transfer ownership of this equipment, free of charge or for consideration, nor make said equipment the object of any security rights, nor remove the equipment from the country in which it has been installed;
b) The Customer must insure the equipment against all risks of theft, destruction, or other risks and provide ENERIA with any corresponding certificate at its first demand;
c) The Customer must take all necessary measures for the conservation of the equipment and ownership rights of ENERIA;
d) The Customer accepts, at ENERIA’s discretion, the constitution for the benefit of ENERIA of a pledge or a maritime mortgage in case of sale of marine engines. He undertakes to sign all the documents necessary for the constitution of these securities and to bear all the costs arising therefrom.
No early payment shall give rise to any discount.
In the event of failure to pay the entire price on the agreed date, or of any instalment in the event of payment by instalments, the sums due shall fully and automatically bear interest at a rate equivalent to the interest rate applied by the European Central Bank (ECB) to its most recent refinancing operations increased by 10 percentage points, the amount of which may be charged to any amounts owed by ENERIA to the Customer in any capacity whatsoever. In case of payment after the agreed date, and according to articles L441-5 and D441-6 of the French Commercial Code, the Customer shall pay to ENERIA a lump sum of 40 Euros for recovery costs. Moreover, an additional compensation may be claimed upon presentation of receipts if recovery costs exceed the amount of the legal lump sum. The application of these provisions shall not limit ENERIA’s rights to rely on other provisions stated herein. In addition, in the event of failure by the Customer to pay any one instalment, the entire price shall be fully and automatically due 5 business days following simple notice of breach summoning payment sent by registered letter with return receipt requested, which has remained without effect.
The Customer is released from its payment obligation at the time of the actual collection of the amounts due. In the event of a dispute or in the event of partial performance of the contract, the payment shall continue to be due on the uncontested or partially performed portion of the contract. Any amount unpaid by the Customer at the end of the term may be compensated by ENERIA with any claim by the Customer, whatever the cause and even if it is not yet due, the compensation will be automatically done by simple notification to the Customer.
VI. ORDERS FOR REMANUFACTURED EQUIPMENT OR PARTS
Remanufactured equipment means parts or components reconditioned by the manufacturer. For each remanufactured material ordered, an identical used material manufactured by the same manufacturer as the ordered material (hereinafter referred to as the counterparty) must be returned to ENERIA, DDP Montlhéry (ICC INCOTERMS) by the Customer within thirty days from the date of the order, assembled and cleaned, in the new packaging of the remanufactured material purchased, and accompanied by a duplicate of the delivery note or the invoice. The Customer shall be liable, in addition to the price of the said equipment, for a certain amount (referred to as a “guarantee”) guaranteeing the return of the counterparty. ENERIA will return this sum to the Customer in the form of a credit note, except in case of non- respect of the return period of the counterparty or in the event of receipt of a counterparty that does not have the required return qualities (for example: defect of certain elements, material not cleaned or damaged by causes other than normal wear and tear, etc.), cases in which ENERIA will be entitled to keep this sum.
VII. DELIVERY
Unless otherwise specifically stipulated, delivery is deemed to have been made to ENERIA’S workshops or warehouses.
The delivery date is the date that the equipment is made available to the Customer or his representative in ENERIA’S warehouses or at the port of arrival. The equipment is shipped at the Customer’s expense and risks, including for carriage paid or COD shipments. Any piece of equipment is deemed to be recognized and accepted at ENERIA’s warehouses by the Customer or the recipient of the equipment prior to shipment. Upon delivery, the Customer checks the good condition of the delivered material. In case of damage or missing, the Customer must enter on the delivery slip clear, precise and complete reservations and confirm these reservations to the carrier and to ENERIA by registered letter with acknowledgment of receipt within three days of receipt, in accordance with Article L133-3 of the French Commercial Code. In the event that the Customer does not take delivery eight days after notice informing it that the equipment ordered is available to it, ENERIA reserves the right to dispose of the equipment and to defer the filling of the order to a later date.
In the case of export sales, the equipment’s delivery times, conditions and place will conform to the Incoterm FAS (Free Alongside Ship) at the agreed port of loading for maritime and fluvial transports, and to the Incoterm EXW (Ex Works) in other cases, in accordance with the International Chamber of Commerce (ICC) INCOTERMS.
Delivery times are communicated for information purposes only and without commitment. Potential delays will not justify the cancellation of the order. Unless the parties expressly agree otherwise, they cannot constitute an essential obligation of ENERIA. Potential delays cannot justify the cancellation of the order. They cannot give right to compensation or to the payment of any penalty for the benefit of the Customer if they do not exceed three weeks. For each full week of delay, from the end of the third week, a penalty of 0.5% with a maximum of 5% of the value of the equipment may be applied, and only if the delay is attributable to ENERIA’s exclusive fault and if the Customer has notified ENERIA in writing at the time of the order and confirmed, on the date originally scheduled for delivery, its intention to charge it. Any such penalties shall take the form of liquidated damages, exclusive of any damages, and of any other remedy. They cannot under any circumstances give rise to automatic compensation.
By rights, ENERIA shall be automatically released from any commitment concerning the delivery times if the payment conditions have not been complied with by the Customer or in the presence of a force majeure situation or in the case of events outside ENERIA’s control, such as: lockout, strike, epidemic, war, acts of terrorism, requisition, fire, flooding, accidents involving tools, discarding of important parts during manufacture, interruption or delay in transport or any other cause giving rise to total or partial idleness of operations for ENERIA or its suppliers. The Customer is required to make any reservations within two business days of delivery. Otherwise, any claim associated with delivery shall be inadmissible. Prior to any return of equipment, the Customer must obtain ENERIA’s consent to the return itself as well as on its financial and operational conditions.
VIII. CONFIDENTIALITY AND OWNERSHIP OF INFORMATION
All information, including in particular all projects, studies, plans etc. communicated by ENERIA to the Customer shall be confidential. They shall remain the exclusive property of ENERIA despite their transmission. They may neither be used by the Customer, nor disclosed to a third party without the prior written agreement of ENERIA. The Customer must take all necessary steps in order to ensure compliance with this confidentiality by its employees and its Customers.
IX. PROTECTION OF PERSONAL DATA
As part of its contractual relationship with the Customer, ENERIA undertakes to comply with the regulations in force applicable to the processing of personal data and, in particular, Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 applicable from May 25, 2018 (hereinafter “the General Data Protection Regulation (GDPR)”). ENERIA groups in its customer and marketing files personal data relating to its customers. These files have been declared to the Commission Nationale Informatique et Libertés (CNIL). Their main purpose is the management of contracts, invoicing and marketing operations carried out by ENERIA. Regarding personal information about him, the Customer has the right to oppose without charge to the use by ENERIA of this information for marketing operations as well as a right of access and rectification in the event where such information proves to be inaccurate, incomplete and/or out of date. The Customer may exercise the aforementioned rights with the ENERIA entity whose details appear on the invoice or at the following e- mail address: dpo@monnoyeur.com.
X. WARRANTY
a) Scope
The warranty shall apply to any defective materials or construction. It shall only cover original parts and components supplied by ENERIA and solely to the extent that the equipment is used and maintained in conformity with the instructions of the manufacturer and ENERIA.
The duration of the parts guarantee is as follows:
For parts and assembled components installed in C175 engines and series 3500 and 3600 engines used in locomotive applications: 12 months from the date the product is installed or 15 months from the date of sale to first user, the first reached.
For the assembled parts and components installed in all other products and applications covered by this guarantee: 12 months from the date of sale to first user, or 1000 hours, the first reached.
Repair or replacement of parts under warranty does not extend the warranty period for other components of the equipment. The warranty covers only the costs of repair or replacement. Under no circumstances shall the immobilisation of the equipment, the time for repairs or exchange, transport costs, strip-down and reassembly costs or damage caused to neighbouring installations give rise to the payment of any indemnity by ENERIA to the Customer.
b) Modalities
The services arising from the application of the warranty shall, in principle, be undertaken in ENERIA’s workshops after the Customer has returned the equipment to it and requested application of the warranty. The warranty shall only be granted after examination of the defective parts or components returned to ENERIA. Any part which is recognized as being defective shall be replaced free of charge ex ENERIA’s warehouses, or repaired in its workshops.
The choice between repair and replacement under the warranty, as well as the details for the performance of the various operations, shall be determined exclusively by ENERIA. Any equipment or part replaced pursuant to these provisions shall become the property of ENERIA.
c) Exclusions
The warranty shall not cover the costs of transfer of the defective parts or equipment, nor the return of the repaired or replaced parts or equipment, said costs always being borne by the Customer, as well as, in the event of repair on the installation site, the travel and accommodation expenses of the ENERIA technicians.
The warranty is excluded for incidents due to purely accidental causes or force majeure, for all replacements or repairs arising from normal wear and tear or arising due to negligence, lack of supervision or maintenance, or use under conditions which do not conform to the instructions of the manufacturer or ENERIA.
All equipment which is delivered or ordered prior to acceptance of implementation of this warranty by ENERIA shall be invoiced to the Customer.
Unless where ENERIA specifically agrees to the contrary in advance and in writing, the warranty shall only be exercised on the French territory.
XI. LIABILITY
ENERIA undertakes to deliver equipment conforming to regulations in force, the contractual specifications and the rules of the art.
Except in the event of gross negligence or serious offence by ENERIA and compensation for bodily injury, ENERIA’s liability shall be limited, for all causes taken together, to the price of the equipment under the order. ENERIA shall not under any circumstances be liable for intangible loss and/or indirect loss which the Customer may claim for compensation, including in particular loss of production, operating losses or loss of profits, commercial loss.
The Customer guarantees the waiver of remedy of its insurers or third parties being in a contractual situation with it, against ENERIA or its insurers beyond the limits and for the exclusions stipulated below.
ENERIA shall be released from any liability in case of force majeure or events outside ENERIA’s control, such as: lockout, strike, epidemic, war, acts of terrorism, requisition, fire, flood, etc.
XII. ENVIRONMENTAL MATTERS AND SUSTAINABLE DEVELOPMENT
Except in the case of a generator with a fixed power of less than 450 KVA, the equipment object of the sale is not covered by the Decree No. 2005-829 concerning the composition of electrical and electronic equipment and the disposal of waste arising from this equipment. Pursuant to article L.541-2 of the Environmental Code, it is the responsibility of the holder of the waste to dispose of (or to have others dispose of) said waste.
XIII. RESOLUTION AND CANCELLATION
This order may be, after formal notice, fully and automatically cancelled in the event of failure by the Customer of any one of its duties, including in particular the failure to pay the price or any one instalment of the price. ENERIA may also rely on the resolution of all sales concluded with the Customer even if the payment period has not expired. Finally ENERIA will be justified in refusing any further order from the Customer. Said cancellation shall be effective as of the receipt by the Customer of the letter giving notice of this decision. The Customer shall return the equipment to ENERIA without delay and at its own expense, to the place specified by ENERIA. It shall also pay to ENERIA damages for cancellation equal to the amount of the down payment already paid by the Customer and at least 10% of the value of the equipment.
In case of cancellation of the order by the Customer, ENERIA shall retain the amount of the down payment as compensation, without prejudice to the right to claim damages in the amount of the additional loss suffered.
XIV. ASSIGNMENT – SUBCONTRACTING
This order may not be assigned by either party to a third party without the express prior agreement of the other party. Except where provided otherwise, ENERIA may resort to one or more subcontractors for all or part of the order.
XV. GOVERNING LAW – DISPUTES
This order shall be governed by French law.
Any dispute or litigation concerning this order shall be submitted to the Commercial Court of Paris to which jurisdiction is hereby expressly attributed.
ENERIA – Société par Actions Simplifiée au Capital de 10 000 000 Euros
siège social : Rue de Longpont – BP 10202 – 91311 MONTLHERY CEDEX – FRANCE
Tél. +33 (0)1 69 80 21 00 – Fax +33 (0)1 69 80 21 50 – R.C.S. Evry B 352 774 079 – TVA FR 63 352 774 079
Agences : AIX EN PROVENCE – AJACCIO – BORDEAUX – BOULOGNE SUR MER – GUERANDE – LA CIOTAT – LE HAVRE – LILLE – LIMOGES – LYON – MONTLHERY – NANCY – NANTES – PORT LA NOUVELLE – RENNES – SAINT DENIS – TOULOUSE
I. SCOPE OF APPLICATION
These general terms and conditions for technical assistance, which may be amended or supplemented by specific terms and conditions, are the only conditions which shall govern contractual relations between ENERIA and the Customer regarding after-sales services requested by the latter and supplied by ENERIA’s technical staff. They shall apply to all breakdowns, visits and repairs not covered by a specific maintenance contract.
II. METHODS FOR REQUESTING TECHNICAL ASSISTANCE
All requests for technical assistance must be confirmed in writing to ENERIA, no matter what form this written communication may take: letter, fax or electronic mail. However, in the event of emergency assistance, the signature of an employee or representative of the Customer shall be taken as a firm order.
III. SAFETY RULES
In accordance with the provisions of Articles R4511-1 and following of the Labor Code, the Customer must inform ENERIA employees of the safety rules in force in its establishment. With regard to the new equipment sold by ENERIA, technical assistance carried out by ENERIA employees shall comply with the safety rules set out in the documents supplied to the Customer upon delivery of the equipment. A representative of the Customer must be present throughout the technical assistance provided by ENERIA employees on the Customer’s sites or premises.
IV. PRICES
a) Flat rate
The prices communicated at the time of the order and accepted by the Customer are subject to changes beyond the Supplier’s control that may impact the overall price communicated, including changes in legislation or regulations, changes in the price of raw materials, exchange rate fluctuations, customs duties or taxes.
b) Variable rate
When the charge for the service is expressly declared to be at a variable rate, it will be established after the performance of the said service using the following criteria and excluding taxes:
Invoicing of labour of the work done on site (i.e. number of hours worked on site multiplied by the ENERIA hourly rate in force, with each hour started counting as a full hour);
invoicing of travel time and preparation time at the ENERIA hourly rate in force;
invoicing of flat rate subsistence costs based on the total number of hours on the job (i.e. working time on site plus travel and preparation time), invoiced at the unit rate in force;
invoicing of exceptional subsistence costs, at their actual price;
invoicing of travel costs in terms of the number of kilometres travelled from the nearest ENERIA establishment to the site where work is to be carried out and back, at the rate per kilometer in force;
invoicing of expenses related to work carried out in exceptional circumstances related to transport, installation and logistics.
Changes in legislation or regulations, changes in the price of raw materials, exchange rate fluctuations, customs duties or taxes
c) Possible charges for overtime
There shall be no additional charge for overtime during working days (Monday to Friday) and normal working hours (8 a.m. to 6 p.m.). Unless otherwise stipulated in the special conditions, in case ENERIA accepts, at the express Customer’s request, that the work can be carried out outside these working days and hours, ENERIA’s hourly rate in force shall be increased by 25% for hours worked from 6 p.m. to 10 p.m. and from 6 a.m. to 8 a.m. during working days; by 50% for night hours (from 10 p.m. to 6 a.m.) on working days, by 100% for hours worked on Saturdays during normal working hours, by 125% – on Saturdays for hours worked between 6 p.m. and 10 p.m. and between 6 a.m. and 8 a.m., by 150% – on Saturdays for night hours (from 10 p.m. to 6 a.m.) and by 200% – on Sundays and public holidays during normal working hours, by 225% – on Sundays and public holidays for hours worked from 6 p.m. to 10 p.m. and from 6 a.m. to 8 a.m., and by 250% – on Sundays and public holidays for night hours (from 10 p.m. to 6 a.m.).
V. PAYMENT TERMS
Unless provided otherwise in the specific terms and conditions, ENERIA’s invoices are to be paid cash down immediately on the date of receipt of the invoice.
The charges shall not be considered to have been paid until the funds have actually been received.
In the event of late payment, the sums due shall fully and automatically bear interest at a rate equivalent to the interest rate applied by the European Central Bank (ECB) to its most recent refinancing operations increased by 10 percentage points, the amount of which may be charged to any sums owed by ENERIA to the Customer, for whatever reason. In no event shall the payment of such interest constitute a fixed agreed compensation for the loss suffered by ENERIA. In case of payment after the agreed date, and according to articles L. 441-10, II, and D441-5 of the French Commercial Code, the Customer shall pay to ENERIA a lump sum of 40 Euros for recovery costs.
Moreover, an additional compensation may be claimed upon presentation of receipts if recovery costs exceed the amount of the legal lump sum.
Any amount unpaid by the Customer at the end of the term may be compensated by ENERIA with any claim by the Customer, whatever the cause and even if it is not yet due. The compensation will be automatically done by simple notification to the Customer.
In case of non-performance by the Customer of one of its obligations, and in particular in the event of total or partial non-payment of one of its invoices, ENERIA will be justified to refuse to honor any subsequent order of the Customer.
VI. SALE OF PARTS
All spare parts sold during technical assistance carried out by ENERIA technical staff will be invoiced to the Customer in accordance with ENERIA’s general terms and conditions of sale.
In particular, parts sold, despite having been delivered to the Customer, shall remain the property of ENERIA until full payment of the price by the Customer (articles 2367 and 2368 of the French Civil Code).
Any default in payment may give rise to a claim for the unpaid parts. However, the risks connected to the parts shall pass to the Customer on delivery.
VII. PROTECTION OF PERSONAL DATA
As part of its contractual relationship with the Customer, ENERIA undertakes to comply with the regulations in force applicable to the processing of personal data and, in particular, Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 applicable from May 25, 2018 (hereinafter “the General Data Protection Regulation (GDPR)”). ENERIA groups in its customer and marketing files personal data relating to its customers. These files have been declared to the Commission Nationale Informatique et Libertés (CNIL). Their main purpose is the management of contracts, invoicing and marketing operations carried out by ENERIA. Regarding personal information about him, the Customer has the right to oppose without charge to the use by ENERIA of this information for marketing operations as well as a right of access and rectification in the event where such information proves to be inaccurate, incomplete and/or out of date. The Customer may exercise the aforementioned rights with the ENERIA entity whose details appear on the invoice or at the following e-mail address: dpo@monnoyeur.com.
VIII. GUARANTEE ON REPAIRS AND PARTS
a) Scope and procedures
Repairs carried out by ENERIA shall be guaranteed for a period of three months from the date of the end of the repair work.
The duration of the parts guarantee is as follows:
– For parts and assembled components installed in C175 engines and series 3500 and 3600 engines used in locomotive applications: 12 months from the date the product is installed or 15 months from the date of sale to first user, the first reached.
– For the assembled parts and components installed in all other products and applications covered by this guarantee: 12 months from the date of sale to first user, or 1000 hours, the first reached.
Repair or replacement of parts which takes place in the context of the warranty shall not have the effect of extending the warranty period for the other components of the equipment.
The warranty covers only the costs of repair or replacement (labour and parts). Under no circumstances shall the immobilisation of the equipment, the time for repairs or exchange, transport costs, strip-down and reassembly costs or damage caused to neighbouring installations give rise to the payment of any indemnity by ENERIA to the Customer.
The warranty shall only be granted after examination of the defective parts or components returned to ENERIA. Any part which is acknowledged as being defective shall be replaced free of charge ex ENERIA’s warehouses, or repaired in its workshops.
The choice between repair and replacement under the warranty, as well as the details for the performance of the various operations, shall be determined exclusively by ENERIA. Any equipment or part replaced pursuant to these provisions shall become the property of ENERIA.
b) Exclusions
The guarantee shall be rejected and ENERIA freed from any responsibility if:
– parts installed by ENERIA have been replaced by the Customer with parts from another supplier;
– the damage in respect of which the Customer is seeking to rely on the guarantee are due to negligence or to use of the equipment by the Customer which does not comply with the manufacturer’s or ENERIA’s recommendations;
– the Customer has refused to allow ENERIA to make what it considered necessary replacement of parts.
The guarantee shall not cover the costs of returning defective, repaired or replaced parts: those costs are to be borne by the Customer, as are ENERIA technical staff’s travel and subsistence costs in the event of repair work done at the installation site.
The guarantee shall exclude any claims for damage arising from acts of God or force majeure, for all replacements or repair work resulting from normal wear and tear or the result of negligence, shortcomings in monitoring or maintenance, or use under conditions not complying with the manufacturer’s or ENERIA’s recommendations.
In the absence of ENERIA’s specific written prior agreement, the guarantee shall be valid only on French soil.
IX. TREATMENT OF THE EQUIPMENT AFTER REPAIR
The equipment entrusted to ENERIA for repair must be taken back by the Customer within at most two weeks following the date that said equipment was made available after repair, which will be indicated to the Customer by ENERIA. Beyond, security costs may be invoiced to the Customer by ENERIA. After this period, and according to the law, any equipment not recovered after one year will become legally and irrevocably the property of ENERIA which will be able to dispose of it as it seems, or to make it sell by court decision at public auction.
X. LIABILITY
ENERIA undertakes to carry out its technical assistance through a qualified personnel possessing all required qualifications and habilitations in order to perform such works in accordance with regulations in force, contractual specifications and professional rules.
Except in the event of gross negligence or compensation for bodily injury, ENERIA’s liability shall be limited, for all causes taken together, to the price of the repair or technical assistance carried out.
ENERIA shall not under any circumstances be liable for intangible loss and/or indirect loss which the Customer may claim for compensation, including in particular loss of production, operating losses or loss of profits, commercial loss.
XI. GOVERNING LAW – DISPUTES
The contractual relations between ENERIA and the Customer shall be governed by French law.
Any dispute or litigation concerning the technical assistance carried out by ENERIA shall be submitted to the Paris commercial court to which jurisdiction is hereby expressly attributed.
ENERIA – Société par Actions Simplifiée au Capital de 10 000 000 Euros
siège social : Rue de Longpont – BP 10202 – 91311 MONTLHERY CEDEX – FRANCE
Tél. +33 (0)1 69 80 21 00 – Fax +33 (0)1 69 80 21 50 – R.C.S. Evry B 352 774 079 – TVA FR 63 352 774 079
Agences : AIX EN PROVENCE – AJACCIO – BORDEAUX – BOULOGNE SUR MER – GUERANDE – LA CIOTAT – LE HAVRE – LILLE – LIMOGES – LYON – MONTLHERY – NANCY – NANTES – PORT LA NOUVELLE – RENNES – SAINT DENIS – TOULOUSE
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