General Terms and Conditions of purchase

GENERAL TERMS AND CONDITIONS OF PURCHASE – ENERSON
28/02/2022

I SCOPE OF APPLICATION

The subject matter of these Terms of Purchase is to define ENERSON’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 ENERSON’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 ENERSON will be deemed accepted by the Supplier upon occurrence of the earliest of the following events:

  • Receipt by ENERSON of the acknowledgement of receipt of the Purchase order signed by the Supplier, without being modified within 48 hours from the date of receipt of the order,
  • Start of execution of the Purchase order by the Supplier without communicating any written reservation concerning contractual documents within the aforementioned period.

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 :

ENERSON

Comptabilité Fournisseur

48 RUE DES BOURGUIGNONS – 91310 MONTLHERY

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:

  • Invoice or Credit Note + Number + billing document date

For credit notes, please specify the invoice number on the document. Invoice document must be unique.

  • Company Name + Address + SIRET code (company registration number) of the issuing establishment + European Union VAT identification number

This information is required to identify you.

  • Description of supplied services and/or goods + Invoiced Quantity

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).

  • Total amount exclusive of VAT, amount of VAT, and Amount inclusive of VAT
  • Payment method and bank details

If the invoice has been assigned to a factor, write the word “assigned” and the factor’s bank details.

  • Currency

The invoice must be denominated in the same currency as our order.

  • For each product from an EU country (excluding France) or country outside the EU

Country of manufacture and customs code

ENERSON 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, ENERSON 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:

  • Delivery slip identification number
  • Order number
  • Transaction number (V xxxxx)
  • Order date
  • Product reference
  • Description of the product or service as mentioned in the order
  • Certificate of compliance where applicable
  • Delivered Quantity and, where applicable, serial number and individual product number
  • Number of parcels if any
  • If required, a customs document and transport document in accordance with the regulations in force as well as any other document for customs clearance operations in case of importation.

Unless otherwise provided for in the order, the delivery of the product will be at delivery to ENERSON’s premises. The acceptance by ENERSON 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 ENERSON, 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 ENERSON 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. In no event shall these penalties constitute a lump sum compensation for the loss incurred by ENERSON.

If ENERSON does not accept the exceeding of lead times specified in the order, ENERSON reserves the right to:

  • either to refuse delivery and terminate the order by operation of law and turn to other suppliers, without prejudice to damages due by the Supplier to ENERSON; or
  • to accept the delivery and claim compensation from the Supplier for the loss caused by the delay.

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 ENERSON. ENERSON 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 ENERSON 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 ENERSON’s option, any defective products at the Supplier’s sole expense and risk, and to bear all costs and expenses incurred by ENERSON 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 ENERSON 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 ENERSON, as well as by any third party and for any loss, charge, damage and/or expense or expenditure, including those incurred by ENERSON in procuring replacement products or services of the same type and quality. The Supplier is also liable to ENERSON, 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 BERGERAT MONOYEUR 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 ENERSON 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 ENERSON 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 ENERSON. The same shall apply for all documents such as execution drawings, sketches, plans, mock-ups that have been provided by ENERSON 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 ENERSON 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 ENERSON 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 ENERSON.

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 ENERSON to meet its obligations under the provisions of French law, within the period allowing ENERSON 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:

  • comply with all the provisions of French law relating to the fight against illegal work, night work and child labour, and those relating to working hours, paid leave as well as staff secondment (including the obligation for non-French staff, assigned to the order performance, to be in possession at all times of the documents authorising them to work in France);
  • comply with all applicable tax and social security obligations;
  • provide its staff, if applicable, with housing compatible with human dignity.

Furthermore, ENERSON 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 HEALTH 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 ENERSON 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 ENERSON’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:

  • contact the service performance coordinator appointed by ENERSON to carry out a risk visit eight days prior to commencing the performance of the services;
  • draw up a prevention plan, where applicable, no later than three days before the start of the performance of the services and/or upon becoming aware of hazardous work and/or works lasting more than 400 operation hours per year;
  • comply with and ensure compliance with health and safety instructions and standards applicable on site where the services are carried out.

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 ENERSON 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 ENERSON 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.

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 ENERSON that the products are supplied in compliance with the applicable provisions, including but not limited to:

  • REACH Article 31 (Requirements for Safety Data Sheets / SDSs for certain substances and mixtures),
  • REACH Article 33(1) (Duty to communicate information on Candidate List Substances of Very High Concern / CL SVHCs above 0.1% weight by weight (w/w) in articles),
  • WFD Article 9(1)(i) (Substances of Concern in Products “ SCIP” notification) to the European Chemicals Agency (“ ECHA”) on supplied articles containing CL SVHCs above 0.1% w/w, as transposed in the national law of the Member State where the product is placed on the market (in France Article L. 521-5 III of the Environment Code via Ordinance No. 2020-920 of 29 July 2020 on waste prevention and management, and any implementation decree(s)).

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 ENERSON the information required by it to enable ENERSON’s own compliance with REACH and WFD/SCIP obligations. For the avoidance of doubt, such information includes the following elements as a minimum:

  1. If applicable, a declaration of absence of CL SVHCs above 0.1% w/w with reference to the article as such, any component article of the product assembly or the complex object – whichever applies – at the time of delivery;
  2. Otherwise (exceedance of 0.1% w/w threshold), at least the “mandatory” information as determined by ECHA for the submission of a WFD/SCIP notification, as well as the information necessary to comply with REACH Article 33(1).
  • If the (EU/EEA) Supplier has submitted an own WFD/SCIP notification to ECHA, the Supplier shall also provide the SCIP number for the product(s) concerned to ENERSON.
  1. Relevant updates to the information provided under i.-iii. after delivery of the product, especially where a substance contained in the product above 0.1% w/w is added subsequently to the ECHA Candidate List.

XV INDUSTRIAL AND INTELLECTUAL PROPERTY

ENERSON 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 ENERSON 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 ENERSON 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 ENERSON 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 “ENERSON”,  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 ENERSON 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 ENERSON 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 DPO, 117 rue Charles Michels – 93200 Saint Denis or contact dpo@monnoyeur.com

XVII ECONOMIC DEPENDENCE

The Supplier is bound to immediately inform ENERSON 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 ENERSON in the event of:

  • orders with an aggregate amount of more than 30% of its annual turnover; or
  • assignment of its staff for more than 40% of the working hours per annum for the needs of ENERSON.

XVIII ETHICS/SOCIAL AND ENVIRONMENTAL RESPONSIBILITY (SER)

MONNOYEUR, to which ENERSON belongs, has adopted a “Code of Ethics and Good Conduct”, which is available on https://monnoyeur.com/wp-content/uploads/Groupe_Monnoyeur_-_Code_Ethique_et_de_Bonne_Conduite_FR.pdf and has been put in place a “responsible purchasing” policy incorporating in particular the commitments of the United Nations Global Compact to which MONNOYEUR is a signatory.

The Supplier undertakes to conduct its business, as well as its corporate strategy, under conditions compatible with the principles set out in the Code of Ethics and Good Conduct. MONNOYEUR 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.

As such, the Supplier represents and warrants that it respects 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 controls, product regulations and environmental law).

In order to ensure compliance with these principles by the Supplier, the Supplier agrees to participate in an assessment of its practices. In the event that the assessment does not reach the required level, the Supplier must put in place a corrective action plan which will be the subject of an assessment. ENERSON reserves the right to cancel an order with the Supplier who has knowingly and repeatedly breached the Code of Ethics and Good Conduct and/or refused to apply the corrective action plans.

XIX TERMINATION OF THE ORDER

This order may be terminated, by operation of law, by ENERSON:

  • in the event of non-performance by the Supplier of any of its obligations and if, within 72 (seventy-two) hours from the receipt of a notification of default, the Supplier does not remedy its failure, without prejudice to the ENERSON’s right to obtain a full compensation for the incurred loss or damage.
  • at any time, at its convenience. In such case, termination shall take effect after a 15 (fifteen)-day prior written notice. Compensation for the loss or damage actually incurred by the Supplier resulting from such termination may be paid by ENERSON to the Supplier, it being expressly agreed that the amount of compensation shall not exceed 5 (five) % of the remaining balance of the sums that the Supplier would have received in case the order had not been terminated. The Supplier shall also be entitled to payment of the sums due for the part of the order duly executed prior to the order termination.

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: €1 192 000
Legal form: SAS [French simplified joint stock company]
NAF or APE: 46.69A
SIRET (registration No): 384 081 436 00048
SIREN: 384 081 436
European Union VAT No:  FR 41384081436
Address: ENERSON 48 RUE DES BOURGUIGNONS – 91310 MONTLHERY
  https://www.enerson.com

A simplified joint stock company (société par actions simplifiée) with share capital of  €1 192 000, EU VAT identification number : FR 41384081436, registered in – R.C.S. Evry 384 081 436