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General conditions
GCA of HATOM TELECOM (TEEC)
1 - PREAMBLE / DEFINITIONS / CONTRACTUAL DOCUMENTS
These GENERAL TERMS AND CONDITIONS OF PURCHASE shall apply, in the absence of a specific contract duly signed by the Parties, to any purchase by TEEC by means of an order referring to these GENERAL TERMS AND CONDITIONS OF PURCHASE. In the following:
- TEEC" means TEEC, whose registered office is located at 29 Avenue de la Division Leclerc 92160 ANTONY - France, a simplified joint stock company registered with the Nanterre Trade and Companies Register (RCS) under number 519 481 089.
- GTC" means these GENERAL PURCHASE CONDITIONS.
- Order Form" means the document issued by TEEC for the ordering of the designated services.
- Order" means all contractual documents governing the relationship between TEEC and the Service Provider for the purchase of services, including the Purchase Order and these GPC,
- Deliverables" means all software, settings, installations, test or training environments or preparation for exams or certifications, documents, course materials, books, training approvals, information, in electronic and/or paper format, that may be required by the Order.
- "Party" or "Parties" means individually the Provider or TEEC and collectively the Provider and TEEC.
- "Contractor" means TEEC's co-contractor for the Order. - Acceptance" means the act by which TEEC accepts the Services (with or without reservations) and acknowledges that the Provider has fulfilled its obligations under the Order. - Representatives" means any directors, officers, employees or agents of the Provider or TEEC duly authorised by the Provider or TEEC. - Outcome" means that which results from the performance of the Services by the Service Provider. The Result includes such Deliverables as may be required by the Order.
- Subcontractor(s)" means any person or company to whom the Service Provider has entrusted the performance of part of the Order by way of a contract of employment.
- Service(s)" means all services, tasks, obligations and duties to be provided by the Service Provider as specified in the Order, in particular in the technical specifications relating thereto, including documentation, Deliverables where applicable, as well as all ancillary services and works and/or equipment necessary or appropriate for the performance of the Services or complementary thereto.
- Site(s)" means the location(s) defined by TEEC where the Services are to be performed by the Service Provider, other than its premises. The location of the Site(s) shall be specified in the Order.
These GTC shall prevail over any of the Provider's general terms and conditions of sale, which the Provider expressly waives. The Service Provider expressly acknowledges having read these GTC, which are applicable between the Parties and form part of the Order, and the Service Provider's response to TEEC's consultation shall constitute the Service Provider's unreserved acceptance of these GTC. Amendments to and deviations from these GTCs shall only apply if agreed in writing by the Parties and shall only apply to the Order in question and shall not apply to other orders. Verbal undertakings and agreements shall have no effect until they are agreed in writing between the Parties. TEEC shall not be liable for the performance by the Service Provider of any oral Order or any oral amendment to the Order. The provisions of this Order shall prevail over any other agreement that may have previously been made between the Parties in relation to the Services. The invalidity, lapse, non-bindingness or unenforceability of any provision of the Order shall not render null and void, invalid, non-binding or unenforceable the other provisions of the Order, which shall remain in full force and effect, unless the Party intending to rely on such invalidity, lapse, non-bindingness or unenforceability can prove that such provision was the impetus and determining factor in its desire to contract.
2 - FORMATION OF THE ORDER / ACKNOWLEDGEMENT OF RECEIPT / ACCEPTANCE OF THE ORDER BY THE PROVIDER
2.1 Formation of the Order
All Orders must be in writing. To this end, TEEC and the Service Provider acknowledge and agree that the formation of the Order and the management thereof, including written communications and notices between TEEC and the Service Provider, may be carried out by or as a result of an electronic process. For this purpose, the e-mail addresses of TEEC and the Provider shall appear in the Order. Within forty-eight (48) hours from the date of receipt of the Order, the Provider shall formally and unreservedly acknowledge receipt of the Order to TEEC by fax, e-mail or post. Unless specifically stated otherwise in the Purchase Order, the Provider may not impose on TEEC any conditions precedent to the performance of the Purchase Order. The Provider shall comply with the description of the Services as presented by TEEC in the Order. It may not modify them under any circumstances. No price supplement shall be granted to the Provider if it performs additional services or services different from the terms of the Order, unless TEEC gives its prior written consent.
2.2 Corrections
In addition, within two (2) working days from the date of receipt of the Purchase Order, the Service Provider shall inform TEEC in writing if it finds that the Order documents are incomplete or contain errors, anomalies or omissions that are detectable by a person in the know. The Contractor shall submit for TEEC's approval any corrections it considers necessary, which shall not result in any change in the quality of the Services, any change in the price of the Order or any change in the deadlines for performance of the Services. TEEC shall notify the Service Provider of its agreement or rejection of the proposed corrections within a reasonable period of time. If the proposed corrections are accepted, the Service Provider shall perform the Order within the timeframe initially specified in the Order. If the Contractor refuses to accept the proposed corrections, the Order shall be deemed null and void, without notice or compensation to the Contractor, unless the Parties agree to such corrections and to the new terms of the Order, in which case an amendment signed by the Parties shall be drawn up. If the Provider fails to provide information and/or advice under this section, the Provider shall bear all associated costs and waives any claim against TEEC.
2.3 Acceptance
The signing of the Purchase Order by the Provider, or the commencement of performance of the Purchase Order if accepted by TEEC, shall constitute acceptance of the Purchase Order by the Provider in its entirety. Acceptance of the Order does not imply any exclusivity in favour of the Service Provider. By accepting the Order, the Service Provider acknowledges that it has received from TEEC all the information it requires to perform the Order. The Service Provider shall not be entitled to rely on any lack of information whatsoever when it could have obtained such information at its request.
2.4 Changes
If the acceptance of the Order by the Service Provider contains one or more reservations or if the corrections proposed by the Service Provider pursuant to Article 2.2 result in a change to the Services, the price or the timeframe of the Order, TEEC may deem the Order not to have been accepted by the Service Provider and reserves the right to cancel the Order without prior notice or any compensation to the Service Provider.
3 - CHANGES TO THE SERVICES
3.1 Changes
At any time until the Services are accepted by TEEC as defined in Article 9.1 of these General Terms and Conditions, TEEC reserves the right to modify the Services initially defined, with the Provider being required to comply with such modifications. The Provider shall inform TEEC as soon as possible of the possible impact of the modifications requested by TEEC. Unless a written amendment is signed by the Parties, any changes to the Services requested by TEEC shall not result in any change to the price and performance deadlines initially provided for in the Order.
3.2 Improvements
The Provider may propose to TEEC any changes that it considers to be an improvement to the Order or the Services, with TEEC remaining entirely free to decide what action to take on such a proposal. Under no circumstances may the Provider unilaterally modify the Order or the Services, whether as regards the quantity or nature of the Services or in any other respect whatsoever, unless the modification(s) has (have) been expressly accepted by TEEC and a written amendment to this effect has been signed by the Parties.
4 - PRICES / INVOICING / PAYMENTS / ASSIGNMENT OF CLAIMS
4.1 Prices
The total and fixed price stipulated in the Order is firm and non-revisable. It is exclusive of VAT and includes all costs incurred in the performance of the Services and, in general, all costs necessary for the proper performance of the Order. Unless otherwise specified in the Order, the Service Provider shall bear all costs, taxes, levies, duties and fees of any kind directly or indirectly related to the performance of the Order, as well as all expenses necessary for the performance of the Order and for which it is liable.
4.2 Invoicing
Each request for payment shall be subject to an invoice issued by the Provider on behalf of TEEC and approved by TEEC. Each invoice shall contain the date on which payment is due, the discount conditions in the event of payment on a date earlier than that resulting from the Order and the information required by TEEC. Each invoice shall be delivered to TEEC, together with the number of copies requested and supporting documents, at the address indicated in the Order. The Order number shall be shown on any invoice relating to the Order. Invoices shall be issued by the Service Provider in accordance with the schedule set out in the Order. In the event of invoicing according to a single milestone, the corresponding invoice shall not be sent before TEEC has received the Services as defined in Article 9.1 of these GTC. Invoices shall be issued in the currency stipulated in the Order.
4.3 Payment
Unless otherwise specified in the Order, payment of accepted invoices shall be made by TEEC by transfer to the Provider's bank account specified in the Order. Unless otherwise specified in the Order, the payment deadline is thirty (30) days from the end of the month in which the invoice is issued in accordance with the terms of the Order, it being understood that the said invoice must be sent to TEEC by the Provider within forty-eight (48) hours of its issue. If this deadline is not met, payment shall be made thirty (30) days after the end of the month in which the invoice conforming to the terms of the Order is received. In the event of late payment of an invoice by TEEC, the penalties that may be applied by the Service Provider, upon presentation of the invoice, shall not exceed an amount calculated on the accepted amount of the said invoice with a rate equal to three (3) times the legal interest rate in force in France on the date of contractual payment, the period taken into account for the calculation of such interest being the period between the date of contractual payment and the date of actual payment. Payment of an invoice by TEEC does not constitute acceptance of the Services and does not preclude any claims by TEEC, in particular with regard to the quality or quantity of the Services, or with regard to any abnormally invoiced charges. TEEC reserves the right, without prior notice, to withhold all or part of the sums invoiced by the Service Provider, in particular where:
1. the Services do not comply with the requirements and conditions of the Order
2. the Service Provider has only partially performed the Services
3. the Service Provider owes TEEC late payment penalties pursuant to Article 5.2.2;
4. the Services have been rejected by TEEC; v
5. the Service Provider has not provided TEEC with the documents required under Article 5.1.4;
6. TEEC has reservations at the Acceptance;
7. the Provider does not comply with its guarantee obligations as set out in Article 9;
8. a claim is made against TEEC by a third party in respect of an obligation or liability to which the Provider is subject under the terms of the Order;
9. in the case of Services related to training services, if the average score of the evaluation forms completed by the trainees is less than or equal to 12/20.
Except in the case of the refusal of the Services referred to in (d) above, any deductions made shall be paid thirty-five (30) days end of month after the date on which the Provider remedies the cause giving rise to the deduction.
4.4 Assignment of claims
If the Service Provider assigns one or more of its receivables from TEEC, in particular by means of a Dailly slip or factoring, the Service Provider must inform TEEC in writing as soon as possible.
5 - OBLIGATIONS OF THE SERVICE PROVIDER
5.1 Execution of the Order
5.1.1 Compliance of Services – Compliance with deadlines
The Service Provider is solely responsible vis-à-vis TEEC for the performance of the Services, within the deadlines set out in the Order. Any time limit set in the Order to the Service Provider begins to run the day after the day on which the triggering event occurs which serves as the starting point for this time limit. The Service Provider acknowledges having examined in detail, and having to examine the adequacy of the specifications to the needs expressed by TEEC, during the performance of the Services and until their Acceptance under the conditions of article 9.1 of these GTC. During this same period, the Service Provider undertakes to denounce any error, omission, contradiction or inaccuracy, detectable by a person skilled in the art, observed in the documents or instructions given by TEEC and likely to compromise the performance of the Services. As the Services progress, it is the Service Provider's responsibility to report to TEEC the difficulties it encounters in their execution, with proposals to resolve them. The Service Provider may only implement its proposals after having obtained the prior written agreement of TEEC. The Service Provider assumes full responsibility for the conformity of the Services with the specifications and other provisions of the Order as well as with the rules of the trade. If the Services are not exactly compliant with the Order, the Service Provider will be fully responsible and will bear the risks as well as all the associated costs, without prejudice to any possible penalty under the Order or applicable laws and regulations. Concerning the conformity of the Services with the specifications of the Order and the respect of the planned execution deadlines, the Service Provider is bound towards TEEC by an obligation of result from which it can only be exonerated in the event of force majeure as defined in Article 12 of these GTC. The Service Provider is solely liable vis-à-vis TEEC and/or third parties for any damage or harm that may result from the execution of the Order.
5.1.2 Intervenants du Prestataire
Le Prestataire devra nommer un ou plusieurs spécialistes ayant l’expertise et les connaissances requises pour exécuter les Services, qui devront être des membres de son personnel (ci-après désignés « les Intervenants ») et qui seront amenés à intervenir sur le ou les Site(s). Le nom de chaque Intervenant devra être communiqué à TEEC avant le démarrage des Services, étant entendu que le prix de la Commande tel que défini à l’article 4.1 n’est pas lié au nombre d’Intervenants mais à l’exécution des Services. Celui-ci demeurera inchangé si le nombre d’Intervenants devait être augmenté sauf en cas de modification du périmètre des Services par TEEC. En cas d’indisponibilité d’un ou de plusieurs Intervenant(s), susceptible d’occasionner un retard dans l’exécution des Services, le Prestataire le ou les remplacera dans les plus brefs délais par un ou plusieurs Intervenants de qualification similaire. Le Prestataire est responsable de l’application et du respect par ses Intervenants de toutes lois et règlementations applicables, notamment celles concernant les horaires de travail, l’hygiène, la sécurité et la protection de l’environnement ainsi que toutes les règles internes et/ou instructions de sécurité imposées sur le ou les Site(s). Le Prestataire s’engage à désigner au sein de son organisation un représentant qui communiquera directement avec le représentant de TEEC. Des réunions pourront se tenir à la demande de l’une ou l’autre des Parties selon des modalités définies d’un commun accord, afin d’examiner l’état d’avancement des Services. Tout Intervenant affecté à l’exécution des Services est et demeure salarié du Prestataire, qui a en charge le versement de son salaire et la gestion administrative, sociale, comptable et fiscale et avec lequel il conserve un lien de subordination.
5.1.3 Regulations – Social responsibility
5.1.3.1 Regulations applicable to the Order
The Service Provider must execute the Order and perform the Services in accordance with the rules of the art and in accordance with the laws, decrees and regulations applicable and in force in the country of execution of the Services.
5.1.3.2 Quality, Hygiene, Health, Safety, Environment
The Service Provider guarantees, without any limitation, that the Services will be carried out in accordance with the applicable and current laws and regulations in terms of quality, environment, hygiene, health and safety at work, as well as any national regulations. and relevant international or local decree, environmental laws, rules or regulations related to chemicals and hazardous materials.
5.1.3.3 Registration – Social, tax and labor law obligations
The Service Provider must be registered in his country of origin with the competent body or bodies (in France, in the Trade and Companies Register or in the Trades Directory depending on the status, as well as with the Union for the Recovery of Contributions Social Security and Family Allowances). Its registrations must expressly cover all activities for the performance of the Services. The Service Provider will employ and remunerate any Intervener under its exclusive responsibility with regard to tax and social obligations and undertakes that any Intervener who will perform the Services is regularly employed with regard to labor law. The Service Provider must provide TEEC with the documents justifying that it fulfills the aforementioned obligations if TEEC expressly requests it, whether before or during the performance of the Services.
5.1.3.4 Social Responsibility of the Service Provider
The Service Provider acknowledges having knowledge of and respecting the principles and central questions of the ISO 26000 international standard (in particular the environmental, legal, ethical, transparency and human rights aspects). As such, the Service Provider undertakes, in the context of the performance of the Services:
1. not to have, directly or indirectly, as a partner, associate or shareholder, and not to hire or use the services, officials or other representatives of Governments and public international organizations, members of the Commission of the European Communities , the European Parliament, the Court of Justice, the Court of Auditors, the civil service or political parties, within the framework of the performance of the Services.
2. to comply with and ensure that its employees and representatives comply with all applicable anti-corruption laws and regulations, both nationally and internationally, including the Foreign Corrupt Practices Act (USA) or the Bribery Act (United Kingdom), as well as anti-corruption conventions, such as the OECD convention which entered into force on February 15, 1999, the European criminal law convention on corruption adopted on May 26, 1997 and the European civil law convention on the same subject adopted on February 26, 1999.
The Service Provider guarantees compliance with the provisions of this article by its suppliers, service providers or subcontractors. The Service Provider shall hold TEEC harmless from all the consequences of non-compliance with the commitments it makes under this article. Failure to comply with these commitments by the Service Provider will constitute grounds for immediate termination of the Order pursuant to Article 13.2 of these GTC.
5.1.4 Mandatory documents to be provided by the Service Provider
Upon its express or tacit acceptance of the Order according to the conditions of article 2 of these GTC and throughout the duration of the Services, the Service Provider undertakes to provide TEEC with all the documentation relating to the Services, in particular the documents techniques, making it possible to assess, in the opinion of TEEC, the quality and the compliant execution of the Services, as well as to provide the Deliverables under the schedule established in the Order, if applicable. The non-delivery in due time of the aforementioned documents under the conditions provided for in the Order may result in either the withholding of payments provided for in Article 4.3 until the delivery to TEEC of all of these documents, or the refusal of the Services. by TEEC. In the event that modifications to the Services should be made by the Service Provider after Acceptance, in particular under the guarantees provided for in Article 9 of these GTC, the documentation and the Deliverables must be updated accordingly by the Service Provider. The Service Provider also undertakes to send TEEC all legal or technical information applicable to the Order and the Services. All rights associated with the documentation, and the Deliverables, will be transferred to TEEC. The supply of any document reasonably considered by TEEC as incomplete or non-compliant with the Order, in particular with the technical specifications, does not constitute the supply of Deliverables. The Service Provider will remain fully responsible for the consequences of any inaccuracy, insufficiency, fault, error and/or omission in the documentation and the Deliverables provided to TEEC, whether or not TEEC has expressed reservations about the documentation or the Deliverables.
5.1.5 Subcontracting
Before the start of execution of the Order, the Service Provider must submit to TEEC for its prior written approval the Subcontractors it intends to use. TEEC reserves the right to refuse its approval without having to explain the reasons for its refusal. The use of subcontracting without prior acceptance of the Subcontractor and its terms of payment by TEEC exposes the Service Provider to the termination of the Order as defined in Article 13, without prejudice to any damages. The same applies if the Service Provider has knowingly provided inaccurate information in support of its request for agreement. The Service Provider shall remain solely liable vis-à-vis TEEC for the performance of the Services, even in the event of approval by TEEC of the Service Provider's Subcontractors. Subcontracts and/or sub-orders and the related specifications must be communicated to TEEC upon request, for information purposes only.
5.1.6 Material property and intellectual property
The price of the Order includes the transfer to TEEC of the material and intellectual property of the Result, without the need for any mention of this in the Order. Consequently, by the mere fact of accepting the Order, the Service Provider assigns to TEEC all rights of exploitation, reproduction, representation, modification, marketing and use of the Result, for all countries, in all languages and on all media, for the entire duration of the intellectual property. This transfer of ownership takes place as the Order is executed. The Service Provider guarantees TEEC against all claims by third parties concerning industrial or intellectual property rights on the Result and will indemnify it for all consequences, in particular financial, arising therefrom. The above provisions do not affect TEEC's right to claim any damages from the Service Provider.
5.1.7 Advancement
Until the Services have been completed, the Service Provider shall provide TEEC or its Representatives with any information (including reports) that TEEC deems necessary on the progress of the execution of the Order by the Service Provider and/or its Subcontractors. .
5.1.8 Loan of materials and tools by TEEC
At the Service Provider's express request, TEEC may lend it equipment and/or tools for the performance of the Services, which will be listed in a specific written document. The Service Provider must first check the conformity, relevance and suitability of these materials and/or tools for the purpose and the use he intends to make of them. The materials and tools provided by TEEC will remain the property of TEEC. All equipment and/or tools loaned to the Service Provider by TEEC must be returned to TEEC before the end of the performance of the Services, complete and at least in the same condition as that in which they were when they were made available. available to the Provider. The Service Provider will be responsible for all these materials and/or tools, their use and their quantitative and qualitative conservation, and will be required to compensate TEEC for any damage or loss.
5.2 Performance of the Services
5.2.1 Compliance with execution deadlines
Acceptance of the Order by the Service Provider implies an informed, formal and irrevocable commitment by the Service Provider to the contractual deadlines for the performance of the Services as well as the delivery of the documents required by the Order. Compliance with the execution deadlines is an essential condition of the Order. The Service Provider is required to inform TEEC as soon as possible and in writing of any incident likely to delay the execution of the Order, without this notification in itself having the effect of releasing it from its responsibilities. Without prejudice to the provisions of article 5.2.2, in the event of a delay in execution of more than forty-eight (48) hours from the date of execution provided for in the Order, TEEC reserves the right to apply the provisions of article 8.
5.2.2 Penalties for non-compliance with execution deadlines
Failure to comply with the execution deadlines mentioned in the Order will result in the application, ipso jure and without prior notice, of late payment penalties of an amount defined in the Order (failing this, they are set at 0.5% of the price of the Order per day of delay). These penalties are in the nature of a penalty payment and may be automatically deducted from all sums due to the Service Provider, without TEEC being required to justify any prejudice related to this delay. The penalties provided for above are not liberating. Their application does not exclude the right for TEEC to terminate the Order immediately and automatically, pursuant to the provisions of Article 13.2 of the GTC and/or to claim all damages from the Service Provider.
6 – OBLIGATIONS OF TEEC
TEEC undertakes to provide the Service Provider, at its request, with the documentation in its possession and useful for the performance of the Services. All documentation communicated by TEEC to the Service Provider is provided for information purposes only and it will be the Service Provider's responsibility to check the information contained in this documentation.
7 - PERFORMANCE MONITORING AND INSPECTION BY TEEC
TEEC may inspect at any time at the Site(s) the proper performance of the Services by the Service Provider and its Subcontractors, if any, until the Services have been completed in accordance with the requirements. The Service Provider and its Subcontractors, if any, shall ensure free access to the Site(s) during working hours for TEEC's representatives and shall give them every facility for the performance of their duties. The exercise of this right by TEEC does not diminish the contractual responsibility of the Service Provider, in particular with regard to the scope of its own controls, and does not affect TEEC's rights to exercise the rights listed below.
8 - FAILURE OF THE PROVIDER
If TEEC becomes aware of any failure by the Provider to perform its obligations under the Order, it shall notify the Provider of such failures and, where appropriate, of its decision to suspend performance of the Services. TEEC also reserves the right to withhold invoices in accordance with Article 4.3 of these GTC. Within twenty-four (24) hours of such notification, the Provider shall inform TEEC of the corrective action it intends to take. The Parties shall then determine the deadlines they deem acceptable to remedy the notified breaches and allow the resumption of the performance of the Order, where the latter has been suspended. Any delays resulting from suspensions shall be subject to the late payment penalties set forth in Article 5.2.2. If the Service Provider does not take the corrective actions provided for above and accepted by TEEC within the requested timeframe, or immediately after having noted the Service Provider's failure to comply if the urgency justifies it, TEEC may:
1. grant the Service Provider an extension of time, with the late payment penalties provided for in Article 5.2.2 remaining applicable by operation of law as from the date of performance of the Services initially provided for in the Order;
2. to take all measures necessary for the performance of the Order, and in particular to complete the Services itself or to have them completed by a third party at the Supplier's expense
3. to carry out itself or to have a third party carry out the rectification and/or repair of defects in the Services at the expense of the Service Provider;
4. apply its rights of suspension and/or termination as set forth in Article 13. The Provider may not invoke the repair or intervention carried out by TEEC or a third party pursuant to this section to modify the scope of its responsibilities. TEEC shall be entitled to exercise the aforementioned rights without prejudice to any claim for damages for the loss suffered as a result of the Provider's breach.
9 - ACCEPTANCE OF SERVICES - TRANSFER OF OWNERSHIP
9.1 Acceptance of Services
The Services shall be accepted in writing after TEEC has verified that the Services comply in all respects with all the conditions and requirements of the Order and, where applicable, after TEEC has received the documentation and Deliverables provided for in the Order, and after verification, in the case of Services linked to training services, of the average mark on the evaluation forms completed by the trainees, which must not be less than 12/20 (twelve out of twenty). The verification of the Services will be carried out within a reasonable time after the end of their execution by the Provider. TEEC may declare acceptance with reservations, if necessary, in the event of a minor defect that has no impact on safety. The Provider shall remedy the defect within the period set by TEEC. The commencement of use of the Result by TEEC or the payment of all or part of the price of the Services shall not constitute Acceptance.
9.2 Transfer of ownership
If the performance of the Services involves the delivery of one or more tangible and/or intangible items, in particular the supply of materials and/or Deliverables, by the Service Provider to TEEC, the transfer of ownership of the item(s) to TEEC shall take place as and when they are performed by the Service Provider. Similarly, if the Services include the transfer of ownership of intellectual property rights to TEEC, the transfer of ownership of these rights shall take place as and when they are completed by the Service Provider. No retention of title clause may be invoked against TEEC by the Service Provider, who shall ensure that its Subcontractors agree to the same. The transfer of ownership shall in no way limit the Service Provider's liability for the Services.
10 - GUARANTEE PERIOD - SCOPE OF THE GUARANTEE - ADDITIONAL GUARANTEES
10.1 Warranty period
The Service Provider warrants the Services under the Order for an initial period of twelve (12) months, unless otherwise specified in the Purchase Order. The warranty period shall commence on the date of RECEIPT of the Services by TEEC in accordance with Article 9.1 of these GTC. If, during the warranty period, it is necessary to make a correction, rework or modification to the Services pursuant to this article, such Services shall be subject to a new warranty period of twelve (12) months from the date of acceptance by TEEC of the corrections, rework or modifications.
10.2 Scope of the warranty
The Service Provider's warranty covers, inter alia, any improper performance of the Services, any defects and any failure of the Services to comply with the Order specifications. Until the expiry of the warranty period including any extensions as provided for in Article 10.1 of these GTC, the Service Provider is obliged to correct, repair or modify the Services free of charge and/or to visit the Site(s) to provide technical assistance in order to carry out any corrections, rework or modifications free of charge so that the Services continue to comply with the conditions of the Order. All costs, including labour costs, resulting from the implementation of the warranty shall be borne in full by the Service Provider.
10.3 Legal warranties
In addition to the contractual warranty described above, TEEC shall benefit from all applicable mandatory and supplementary legal warranties, as well as the warranties of its Subcontractors. 10.4 Assignment of warranties All the warranties provided for in this Article 9 may be assigned to a third party without the Service Provider's prior agreement.
11 - RESPONSIBILITIES - INSURANCE
11.1 Responsibilities
The Service Provider shall perform the Order under its sole and exclusive responsibility. It shall be liable to TEEC and to third parties for any damage whatsoever caused in the performance of the Order by itself and/or by persons or property under its authority or custody and/or by its Subcontractors. The Service Provider shall be liable for all the consequences, direct or indirect, of any loss or damage caused to TEEC as a result of the non-performance or improper performance of the Order.
11.2 Insurance
The Service Provider shall, at its own expense, take out insurance policies with reputable companies and maintain them in force during the performance of the Order, including any extensions, covering its civil liability and the financial consequences of bodily injury, property damage and consequential loss caused to third parties and to TEEC (operational and post-delivery civil liability) as well as its professional civil liability in connection with the performance of the Order, until the end of the contractual guarantee period; any insurance policy covering damage caused to its personnel in the event of performance of the Services in a country where there is no legal system of social cover; in the event that the performance of the Services involves the supply of materials, transport insurance (including unloading) to cover physical loss or damage to any supplies up to the total replacement cost plus taxes and customs duties until delivery to the Site; insurance against theft, deterioration, damage, loss, destruction and damage of any kind to its goods stored on the Site and which are necessary for the performance of the Order. The Service Provider undertakes to obtain the same insurance from its Subcontractors. The Service Provider undertakes to include in the insurance policy(ies) it takes out a waiver of all claims against TEEC and the latter's insurers. The Service Provider undertakes to obtain the same waiver from its Subcontractors. The Service Provider undertakes to provide TEEC at any time, at the latter's request, with insurance certificates that are less than one month old, proving that the insurance policies required under this article are in force. If the Provider fails to provide such proof, TEEC reserves the right to terminate the Order in accordance with Article 13.2. The Provider shall be liable for any damage or loss for which it is responsible and which is not covered by the above insurance policies.
12 – FORCE MAJEURE
Force Majeure shall mean any unforeseeable and irresistible event beyond the control of the Parties, the occurrence of which makes it impossible to perform the Order. However, the following shall not be considered as force majeure events: an increase in the price of labour, delay by Subcontractors, fire or explosion immobilising the premises of the Service Provider and/or its Subcontractors, strike, natural disasters not covered by a ministerial order, this list not being exhaustive. In the event of an event of force majeure, the Service Provider shall inform TEEC by registered letter within forty-eight (48) hours, giving reasons for the facts invoked and the impact on the performance of the Order. The Provider shall take all necessary measures to minimise the effects of force majeure on the performance of the Order. If TEEC recognises the existence of an event of force majeure, it shall notify the Provider thereof. TEEC may exempt the Provider from liability for failure or delay in performance of the Order if it is established that the failure or delay is due exclusively to an event of force majeure and that, despite its best efforts, the Provider was unable to avoid its effects on the performance of the Order. If an event of force majeure persists, TEEC may contract the Services covered by this Order with another Service Provider, without any compensation being paid to the Service Provider, it being understood that the Order may be amended accordingly. The Provider shall then be paid for the part of the Order already performed. Failure to notify TEEC of the occurrence of an event of force majeure within the time limit set shall constitute acceptance by the Service Provider of all the consequences, in particular the financial consequences, resulting from the event of force majeure. The price of the Order may not be modified as a result of an event of force majeure, but TEEC may grant the Service Provider additional time to complete the Order. No event, including force majeure, occurring after the contractual deadlines, and aggravating an already unjustified delay, will be taken into consideration.
13 - SUSPENSION - CANCELLATION BY TEEC
13.1 Suspension
At any time, by giving forty-eight (48) hours' notice, except in cases of emergency, TEEC may order the Provider to suspend performance of all or part of the Order. The Provider shall comply with such order until TEEC notifies the Provider in writing that performance of the Order may be resumed. TEEC shall pay the Contractor for the portion of the Order performed. The time limit set out in the Order shall be extended for the duration of the suspension, except where the suspension is the result of the Provider's breach of its obligations.
13.2 Immediate termination for breach of duty by the Contractor
In the event that the Service Provider breaches any of its obligations under the Order, TEEC shall have the right to terminate the Order, in whole or in part, ipso jure, without any judicial formalities and without notice, upon simple notification to the Service Provider by registered letter with acknowledgement of receipt, without any compensation being due to the Service Provider.
13.3 Termination for convenience by TEEC
TEEC may terminate the Order in whole or in part at any time, either before or after performance of the Services has commenced, ipso jure and without having to provide any reason, by giving at least one week's written notice to the Provider by registered letter with acknowledgement of receipt. In this case, TEEC shall pay the Provider the price of the portion of the Services actually performed at the date of termination (subject to their compliance with the Order) as well as the costs incurred by the Provider directly and reasonably related to the termination, upon presentation of supporting documents. Upon notification of termination, the Service Provider shall immediately cease further performance of the Services and shall take all steps to minimise the above amounts.
13.4 Termination in case of force majeure
In the event of an event of force majeure lasting for a period of seven (7) calendar days (consecutively or in total during the period of performance of the Order), TEEC may terminate the Order, in whole or in part, as of right and without legal formalities, by notifying the Service Provider by registered letter with acknowledgement of receipt and without compensation for the latter.
13.5 Termination in the event of a change in the Provider's legal status
The Provider undertakes to notify TEEC of any change in the composition of its capital, such as a change in majority, merger or takeover, as well as of any decision to open collective proceedings against its company, such as receivership or judicial liquidation. Unless prohibited by law or regulation, TEEC shall have the right to terminate the Order without notice upon receipt of the aforementioned declaration by the Service Provider, or as soon as TEEC becomes aware of the change in the Service Provider's legal situation or the opening of insolvency proceedings against the Service Provider.
13.6 Provider's obligations in the event of termination
On the effective date of termination, the Contractor shall
1. cease all work and release the Site,
2. assign to TEEC all rights to any materials required for the performance of the Services
3. deliver to TEEC all documents, in particular plans, studies, drawings and specifications, prepared by the Contractor or its Subcontractors for the performance of the Services
4. return to TEEC any sum paid in excess of the price of the share of the Services performed.
The Contractor shall be duly summoned to make observations concerning the Services performed and a report of these operations shall be drawn up. The drawing up of this report shall constitute Acceptance of the Services performed and shall mark the starting point of the warranty provided for in Articles 10.1 and 10.2. TEEC shall also benefit from the other legal warranties as provided for in Article 10.3.
14 - CONFIDENTIALITY
The Service Provider shall not communicate to anyone, without TEEC's prior written consent, all or part of the documents, information and data relating to TEEC's business or to the Order or its performance and to which the Service Provider has had access. The Service Provider undertakes to ensure that its staff, suppliers and Subcontractors comply with this obligation of confidentiality. This obligation of confidentiality shall remain in effect for a period of five (5) years from the completion or early termination of the Order.
15 - NON-SOLICITATION
Unless TEEC gives its prior written consent, the Provider undertakes not to hire or work in any way, directly or indirectly, with any TEEC employee, regardless of their legal or social status, during the performance of the Agreement and for a period of two years from the expiry of the Agreement, even if the request comes from the employee. In the event of non-compliance with this clause, TEEC shall be entitled to compensation of at least one hundred thousand euros (excluding tax) per employee, calculated according to the following formula: twelve times the last gross monthly remuneration, calculated on the average of the last three months, received by the employee thus dismissed. Similarly, unless TEEC gives its prior written consent, the Service Provider undertakes not to work in any way whatsoever, directly or indirectly, with a TEEC client company encountered by the Service Provider during the performance of the Agreement, regardless of its legal and social status, for the duration of the Agreement and for a period of two years from the expiry of the Agreement, even if the solicitation comes from the TEEC client company. In the event of non-compliance with this clause, TEEC will be entitled to compensation of a minimum of two hundred thousand euros (excluding tax) calculated according to the following formula: TEEC's turnover invoiced during the last twelve months prior to the expiry of this Agreement to the TEEC client company thus solicited.
16 - COMMUNICATION AND ADVERTISING
Any film, photograph, article, notice or advertising material relating to or connected with the Order must be submitted to TEEC for prior written approval before disclosure and/or publication. The Provider shall not use or refer to the corporate names or trademarks of the TEEC group for any purpose whatsoever without the prior express written consent of TEEC.
17 - ASSIGNMENT OF THE ORDER
17.1 Assignment by TEEC
TEEC reserves the right to assign all or part of the Order to a third party, without the need for the Provider's prior consent.
17.2 Assignment by the Provider
The Provider shall not assign the Order to third parties, even in part, without the prior written consent of TEEC. In all cases of assignment of the Order to third parties, all of TEEC's rights arising from the Order, including the right to claim damages, shall be enforceable against the third parties. In any event, TEEC's approval of the proposed assignment shall not release the Service Provider from its obligations under the Order. Unless expressly stipulated to the contrary, the Provider shall remain jointly and severally liable to TEEC for the full and complete performance of the Order. Any assignment of the Order by the Service Provider in breach of this clause shall be void.
18 - CORRESPONDENCES
Any notice given under the Order shall be given in writing (by hand delivery, electronic message, facsimile or registered letter with acknowledgement of receipt) to a Representative of the other Party, the date of notification being the date of receipt by the receiving Party.
19 - APPLICABLE LAW
The Order shall be governed, in particular as regards its validity, interpretation and performance, solely by French law, to the exclusion of any rules of conflict of laws which might lead to the application of a law other than French law.
20 - SETTLEMENT OF DISPUTES
Any dispute arising in connection with the interpretation and/or performance and/or termination of the Order shall, in the first instance and as far as possible, be settled by amicable negotiation between the Parties. If the Parties fail to reach an amicable agreement within thirty (30) calendar days from the date of first notification, the dispute shall, at the written request of either Party, be submitted to the Evry Commercial Court, to which the Parties shall have exclusive jurisdiction, notwithstanding multiple defendants and third party claims, including for emergency and protective proceedings, summary proceedings or proceedings on petition. However, TEEC reserves the right to refer the matter to the court of the Provider's registered office and, in this case, to waive the application of its own law.
21 - MISCELLANEOUS
The headings in these GTCs are purely indicative and their wording shall not affect the interpretation of the provisions to which they refer. TEEC's failure to insist on strict compliance with any provision of these GTCs shall not be deemed to be a waiver of its right to rely on it in the future.
GCA of HATOM PYLONE (ATF)
1 - PREAMBLE / DEFINITIONS / CONTRACTUAL DOCUMENTS
These GENERAL PURCHASE CONDITIONS shall apply, in the absence of a specific contract duly signed by the Parties, to any purchase by ATF by means of an order referring to these GENERAL PURCHASE CONDITIONS. In the following:
- "Antennes Toutes Fréquences" means ATF, whose registered office is located at 64 Rue du Chenet 91490 Milly-La-Forêt - France, a simplified joint stock company registered with the Evry Trade and Companies Register (RCS) under number 326 726 213.
- CGA" refers to these GENERAL PURCHASE CONDITIONS.
- The "Purchase Order" refers to the document issued by ATF to order the designated services.
- Order" means all contractual documents governing the relationship between ATF and the Service Provider for the purchase of services, including the Order Form and these GTC,
- Deliverables" means all software, settings, installations, test or training environments or preparation for exams or certifications, documents, course materials, books, training approvals, information, in electronic and/or paper format, that may be required by the Order.
- Party" or "Parties" means individually the Provider or ATF and collectively the Provider and ATF.
- Contractor" means ATF's co-contractor for the Order. - Acceptance" means the act by which ATF accepts the Services (with or without reservations) and acknowledges that the Contractor has fulfilled its obligations under the Order. - Representatives" means any directors, officers, employees or agents of the Service Provider or ATF duly authorised by the Service Provider or ATF.
- Result" means what results from the performance of the Services by the Service Provider. The Result includes such Deliverables as may be required by the Order.
- Subcontractor(s)" means any person or company to whom the Service Provider has entrusted the performance of part of the Order by way of a contract of employment.
- Service(s)" means all services, tasks, obligations and duties to be provided by the Service Provider as specified in the Order, in particular in the technical specifications relating thereto, including documentation, Deliverables where applicable, as well as all ancillary services and works and/or equipment necessary or appropriate for the performance of the Services or complementary thereto.
- Site(s)" means the location(s) defined by ATF where the Services are to be performed by the Service Provider, other than its premises. The location of the Site(s) shall be specified in the Order.
The Service Provider expressly acknowledges that it has read and understood these General Terms and Conditions, which are applicable between the Parties and form part of the Order, and that the Service Provider's response to ATF's request for information constitutes acceptance of these General Terms and Conditions by the Service Provider without reservation. Modifications and deviations from these GTC shall only apply if they have been agreed in writing between the Parties and shall only apply to the Order in question, without the Service Provider being able to rely on them for other orders. Verbal commitments and agreements shall not be effective until they have been agreed in writing between the Parties. ATF shall not be liable for the performance by the Service Provider of a verbal Order or a verbal modification to the Order.The provisions of this Order shall prevail over any other agreement that may have been made previously between the Parties in relation to the Services. The invalidity, lapse, non-bindingness or unenforceability of any provision of the Order shall not render null and void, invalid, non-binding or unenforceable the other provisions of the Order, which shall remain in full force and effect, unless the Party intending to rely on such invalidity, lapse, non-bindingness or unenforceability can prove that such provision was the impetus and determining factor in its desire to contract.
2 - FORMATION OF THE ORDER / ACKNOWLEDGEMENT OF RECEIPT / ACCEPTANCE OF THE ORDER BY THE SERVICE PROVIDER
2.1 Formation of the Order
All Orders must be in writing. To this end, ATF and the Service Provider acknowledge and agree that the formation of the Order and the handling thereof, including written communications and notices between ATF and the Service Provider, may be carried out by or as a result of an electronic process. For this purpose, the electronic addresses of ATF and the Service Provider shall appear in the Order. Within forty-eight (48) hours from the date of receipt of the Order, the Service Provider shall formally and unreservedly acknowledge receipt of the Order to ATF by fax, e-mail or post. Unless specifically stated otherwise in the Purchase Order, the Service Provider may not impose any conditions precedent on ATF for the performance of the Order. The Service Provider shall comply with the description of the Services as presented by ATF in the Order. It may not modify them under any circumstances. No price supplement shall be granted to the Service Provider if it performs additional services or services that differ from the terms of the Order, unless ATF gives its prior written consent.
2.2 Corrections
Furthermore, within two (2) working days from the date of receipt of the Purchase Order, the Service Provider shall inform ATF in writing if it finds that the Order documents are incomplete, or contain errors, anomalies or omissions detectable by a person in the know. The Service Provider shall submit for ATF's approval any corrections that it deems necessary, which shall not result in a change in the quality of the Services, a change in the price of the Order or a change in the timeframe for the performance of the Services. ATF shall inform the Service Provider of its agreement or rejection of the proposed corrections within a reasonable period of time. In the event of acceptance of the proposed corrections, the Service Provider shall execute the Order within the timeframe initially provided for in the Order. If the Contractor refuses to accept the proposed corrections, the Order shall be deemed null and void, without notice or compensation to the Contractor, unless the Parties agree to such corrections and to the new terms of the Order, in which case an amendment signed by the Parties shall be drawn up. If the Service Provider fails to provide information and/or advice under this Article, the Service Provider shall bear all associated costs and waives any claim against ATF.
2.3 Acceptance
The signing of the Purchase Order by the Service Provider, or the commencement of performance of the Order if accepted by ATF, shall constitute acceptance of the Order by the Service Provider in its entirety. Acceptance of the Order does not imply any exclusivity in favour of the Service Provider. By accepting the Order, the Service Provider acknowledges having received from ATF all the information necessary for the performance of the Order. The Service Provider shall not be entitled to rely on any lack of information whatsoever when it could have obtained such information at its request.
2.4 Changes
If the acceptance of the Order by the Service Provider contains one or more reservations or if the corrections proposed by the Service Provider pursuant to Article 2.2 result in a change to the Services, the price or the timeframe for execution of the Order, ATF may consider the Order as not accepted by the Service Provider and reserves the right to cancel the Order without prior notice or any compensation to the Service Provider.
3 - MODIFICATIONS TO SERVICES
3.1 Modifications
At any time until acceptance of the Services by ATF as defined in Article 9.1 of these GTC, ATF reserves the right to modify the Services initially defined, and the Service Provider shall comply with such modifications. The Service Provider shall inform ATF as soon as possible of the possible impact of the modifications requested by ATF. Unless an amendment is signed by the Parties in writing, the modifications to the Services requested by ATF shall not entail any modification of the price and the execution deadlines initially provided for in the Order.
3.2 Improvements
The Service Provider may propose to ATF any changes that it considers to be an improvement to the Order or the Services, ATF remaining entirely free to decide what action to take on this proposal. The Service Provider may not unilaterally modify the Order or the Services, whether as regards the quantity or nature of the Services or in any other respect whatsoever, unless the modification(s) has (have) been expressly accepted by ATF and a written amendment is signed by the Parties.
4 - PRICES / INVOICING / PAYMENTS / ASSIGNMENT OF CLAIMS
4.1 Prices
The total and fixed price stipulated in the Order is firm and non-revisable. It is exclusive of VAT and includes all costs incurred in the performance of the Services and, in general, all costs necessary for the proper performance of the Order. Unless otherwise specified in the Order, the Service Provider shall bear all costs, taxes, levies, duties and fees of any kind directly or indirectly related to the performance of the Order, as well as all expenses necessary for the performance of the Order and for which it is liable.
4.2 Invoicing
Each request for payment shall be subject to an invoice drawn up by the Service Provider on behalf of ATF and approved by ATF. Each invoice shall contain the date on which payment is due, the discount conditions in the event of payment on a date earlier than that resulting from the Order and the information required by ATF. Each invoice shall be delivered to ATF together with the number of copies requested and supporting documents, at the address indicated in the Order. The Order number must be included on any invoice relating to the Order. Invoices shall be issued by the Service Provider in accordance with the schedule set out in the Order. In the event of invoicing according to a single milestone, the corresponding invoice may not be sent before ATF has received the Services as defined in Article 9.1 of these GTC.
4.3 Payment
Unless otherwise specified in the Order, payment of accepted invoices shall be made by ATF by transfer to the Provider's bank account specified in the Order. Unless otherwise specified in the Order, the payment deadline is thirty (30) days from the end of the month of issue of the invoice that complies with the terms of the Order, it being understood that said invoice must be sent to ATF by the Service Provider within forty-eight (48) hours of its issue. If this deadline is not met, payment shall be made within thirty (30) days from the end of the month in which the invoice conforming to the terms of the Order is received. In the event of late payment of an invoice by ATF, the penalties that may be applied to it by the Service Provider, upon presentation of the invoice, may not be greater than an amount calculated on the accepted amount of the said invoice with a rate equal to three (3) times the legal interest rate in force in France on the contractual due date, the period taken into account for the calculation of this interest being the period between the contractual due date and the date of actual payment. The payment of an invoice by ATF does not constitute Acceptance of the Services and does not prevent any possible disputes by ATF, in particular as to the quality or quantity of the Services, or relating to any abnormally invoiced charge. ATF reserves the right, without prior notice, to withhold all or part of the sums invoiced by the Service Provider, in particular when:
1. the Services do not comply with the requirements and conditions of the Order;
2. the Service Provider has only partially performed the Services
3. the Service Provider owes ATF late penalties under Article 5.2.2;
4. the Services have been refused by ATF;
5. the Service Provider has not provided ATF with the documents required under Article 5.1.4;
6. reservations are made by ATF during Acceptance;
7. the Service Provider does not comply with its guarantee obligations as stipulated in Article 9;
8. a claim is made against ATF by a third party in respect of an obligation or liability to which the Service Provider is subject under the terms of the Order;
9. in the case of Services related to training services, if the average score of the evaluation forms completed by the trainees is less than or equal to 12/20.
Except in the case of the refusal of the Services referred to in (d) above, any deductions made shall be paid thirty-five (30) days end of month after the date on which the Provider remedies the cause giving rise to the deduction.
4.4 Assignment of claims
If the Service Provider assigns, in particular by way of a Dailly slip or factoring, one or more receivables that it holds against ATF, the Service Provider must inform ATF in writing as soon as possible.
5 - OBLIGATIONS OF THE PROVIDER
5.1 Performance of the Order
5.1.1 Compliance with the Services - Compliance with deadlines
The Service Provider shall be solely responsible to ATF for the performance of the Services within the time limits specified in the Order. Any time limit set out in the Order for the Service Provider shall begin to run on the day following the occurrence of the event that serves as the starting point for this time limit. The Service Provider acknowledges that it has examined in detail, and must examine, the suitability of the specifications to the needs expressed by ATF, during the performance of the Services and until their Acceptance under the conditions of Article 9.1 of these GTC. During this same period, the Service Provider undertakes to report any error, omission, contradiction or inaccuracy, detectable by a skilled person, found in the parts or instructions given by ATF and likely to compromise the performance of the Services. As the Services progress, it is up to the Service Provider to inform ATF of any difficulties it encounters in their execution, with proposals for resolving them. The Service Provider may only implement its proposals after having obtained ATF's prior written consent. The Service Provider assumes full responsibility for the compliance of the Services with the specifications and other provisions of the Order as well as with the rules of the trade. If the Services do not exactly comply with the Order, the Service Provider shall be fully responsible and bear the risks and all associated costs, without prejudice to any possible penalties under the Order or applicable laws and regulations. With regard to the compliance of the Services with the specifications of the Order and the respect of the planned execution deadlines, the Service Provider is bound to ATF by an obligation of result from which it may only be exempted in the event of force majeure as defined in Article 12 of these GTC. The Service Provider shall be solely liable to ATF and/or third parties for any damage or prejudice that may result from the performance of the Order.
5.1.2 Service Provider's participants
The Service Provider shall appoint one or more specialists with the expertise and knowledge required to perform the Services, who shall be members of its staff (hereinafter referred to as "the Intervenors") and who shall be required to work at the Site(s). The name of each Participant must be communicated to ATF before the start of the Services, it being understood that the price of the Order as defined in article 4.1 is not linked to the number of Participants but to the execution of the Services. This price shall remain unchanged if the number of Interveners is increased, except in the event of a change in the scope of the Services by ATF. In the event of the unavailability of one or more Participants, which may cause a delay in the execution of the Services, the Service Provider shall replace them as soon as possible by one or more Participants of similar qualification. The Service Provider is responsible for the application and compliance by its Contractors with all applicable laws and regulations, including those relating to working hours, health, safety and environmental protection as well as all internal rules and/or safety instructions imposed on the Site(s). The Service Provider undertakes to designate a representative within its organisation who will communicate directly with the ATF representative. Meetings may be held at the request of either Party in accordance with mutually agreed procedures, to review the progress of the Services. Any Participant assigned to the execution of the Services is and remains an employee of the Service Provider, which is responsible for the payment of his/her salary and the administrative, social, accounting and tax management, and with whom he/she remains in a subordinate relationship.
5.1.3 Regulations - Social responsibility
5.1.3.1 Regulations applicable to the Order
The Service Provider shall execute the Order and perform the Services in accordance with the rules of the trade and in compliance with the laws, decrees and regulations applicable and in force in the country where the Services are performed.
5.1.3.2 Quality, Health, Safety and Environment
The Service Provider warrants, without limitation, that the Services will be performed in accordance with applicable and current laws and regulations relating to quality, environment, hygiene, health and safety at work, as well as any relevant national and international regulations or local decrees, laws, rules or environmental regulations relating to chemicals and hazardous materials.
5.1.3.3 Registration - Social, tax and labour law obligations
The Service Provider must be registered in its country of origin with the competent body or bodies (in France, with the Registre du Commerce et des Sociétés or the Répertoire des Métiers depending on its status, and with the Union pour le Recouvrement de Cotisations de Sécurité Sociale et des Allocations Familiales). Its registrations must expressly cover all activities for the performance of the Services. The Service Provider shall employ and remunerate any Participant under its sole responsibility with regard to tax and social obligations and undertakes to ensure that any Participant who performs the Services is regularly employed with regard to labour law. The Service Provider shall provide ATF with the documents justifying that it fulfils the aforementioned obligations if ATF expressly requests it to do so, either before or during the performance of the Services.
5.1.3.4 Social responsibility of the Service Provider
The Service Provider acknowledges that it is aware of and complies with the principles and core issues of the international standard ISO 26000 (in particular environmental, legal, ethical, transparency and human rights aspects). In this respect, the Service Provider undertakes, in the context of the performance of the Services
1. not to have, directly or indirectly, as a partner, associate or shareholder, and not to engage or use the services of, officials or other representatives of Governments and public international organisations, members of the Commission of the European Communities, the European Parliament, the Court of Justice, the Court of Auditors, the civil service or political parties, in the performance of the Services.
2. to comply with, and to ensure that its employees and representatives comply with, all applicable national and international anti-bribery laws and regulations, in particular the Foreign Corrupt Practices Act (USA) or the Bribery Act (UK), as well as anti-bribery conventions, such as the OECD Convention which came into force on 15 February 1999, the European Criminal Law Convention on Corruption adopted on 26 May 1997 and the European Civil Law Convention on the same subject adopted on 26 February 1999
The Service Provider shall ensure that its suppliers, service providers or subcontractors comply with the provisions of this Article. The Service Provider shall indemnify ATF against all consequences of a failure to comply with its undertakings under this Article. Failure by the Service Provider to comply with these undertakings shall constitute grounds for immediate termination of the Order pursuant to Article 13.2 of these GTC.
5.1.4 Mandatory documents to be provided by the Supplier
Upon express or tacit acceptance of the Order under the terms of Article 2 of these GTC and throughout the performance of the Services, the Service Provider undertakes to provide ATF with all documentation relating to the Services, in particular technical documents, enabling ATF to assess the quality and proper performance of the Services in its opinion, as well as to provide the Deliverables in accordance with the timetable set out in the Order, if applicable. Failure to deliver the aforementioned documents in due time in accordance with the terms of the Order may result in either the withholding of payments provided for in article 4.3 until all such documents are delivered to ATF, or the rejection of the Services by ATF. In the event that modifications to the Services should be made by the Service Provider after Acceptance, in particular in respect of the guarantees provided for in Article 9 of these GTC, the documentation and Deliverables shall be updated accordingly by the Service Provider. The Service Provider also undertakes to provide ATF with all legal or technical information applicable to the Order and the Services. All rights associated with the documentation, and the Deliverables, shall be transferred to ATF. The supply of any document reasonably considered by ATF to be incomplete or not in compliance with the Order, in particular the technical specifications, shall not constitute the supply of Deliverables. The Contractor shall remain fully responsible for the consequences of any inaccuracy, insufficiency, fault, error and/or omission in the documentation and Deliverables supplied to ATF, whether or not ATF has expressed any reservations about the documentation or Deliverables.
5.1.5 Subcontracting
Before the start of the execution of the Order, the Service Provider must submit to ATF for its prior written approval the Subcontractors it intends to use. ATF reserves the right to refuse its approval without having to explain the reasons for its refusal. Recourse to subcontracting without ATF's prior acceptance of the Subcontractor and its payment conditions shall expose the Service Provider to the termination of the Order as defined in Article 13, without prejudice to any damages and interest. The same shall apply if the Service Provider has knowingly provided inaccurate information in support of its request for agreement. The Service Provider shall remain solely responsible to ATF for the performance of the Services, even if ATF approves the Service Provider's Subcontractors. Subcontracts and/or sub-orders and the related specifications shall be provided to ATF upon request, for information purposes only.
5.1.6 Physical and intellectual property
The price of the Order includes the transfer to ATF of the material and intellectual property of the Result, without the need for any mention on this subject in the Order. Consequently, by the mere fact of accepting the Order, the Service Provider transfers to ATF all rights of exploitation, reproduction, representation, modification, commercialisation and use of the Result, for all countries, in all languages and on all media, for the entire duration of the intellectual property. This transfer of ownership shall take place as and when the Order is executed. The Service Provider shall guarantee ATF against any claims by third parties concerning industrial or intellectual property rights on the Result and shall indemnify ATF against any consequences, in particular financial consequences, arising therefrom. The above provisions do not affect ATF's right to claim any damages from the Service Provider.
5.1.7 Progress
Until the Services are fully performed, the Service Provider shall provide ATF or its Representatives with any information (including reports) that ATF deems necessary on the progress of the performance of the Order by the Service Provider and/or its Subcontractors.
5.1.8 Loan of equipment and tools by ATF
At the express request of the Service Provider, ATF may lend it equipment and/or tools for the performance of the Services, which shall be listed in a specific written document. The Service Provider shall check beforehand the conformity, relevance and suitability of such equipment and/or tools for the purpose and use it intends to make of them. The materials and tools provided by ATF shall remain the property of ATF. All equipment and/or tools loaned to the Service Provider by ATF shall be returned to ATF before the end of the performance of the Services, complete and at least in the same condition as when they were made available to the Service Provider. The Service Provider shall be responsible for all such materials and/or tools, their use and their quantitative and qualitative conservation, and shall be obliged to indemnify ATF for any damage or loss.
5.2 Performance of the Services
5.2.1 Compliance with performance deadlines
Acceptance of the Order by the Service Provider implies an informed, formal and irrevocable undertaking by the Service Provider to comply with the contractual deadlines for the performance of the Services and the delivery of the documents required by the Order. Compliance with the performance deadlines is an essential condition of the Order. The Service Provider is required to inform ATF as soon as possible and in writing of any incident likely to delay the performance of the Order, without this notification in itself having the effect of releasing it from its responsibilities. Without prejudice to the provisions of article 5.2.2, in the event of a delay in performance of more than forty-eight (48) hours in relation to the performance date provided for in the Order, ATF reserves the right to apply the provisions of article 8.
5.2.2 Penalties for failure to meet performance deadlines
Failure to comply with the performance deadlines set out in the Order shall result in the application, ipso jure and without prior notice, of late payment penalties of an amount defined in the Order (failing which, they shall be set at 0.5% of the Order price per day of delay). These penalties shall have the nature of a penalty payment and may be deducted automatically from any sums due to the Service Provider, without ATF being required to justify any prejudice whatsoever related to the delay. The penalties provided for above are not final. Their application does not exclude ATF's right to immediately and automatically terminate the Order, pursuant to the provisions of Article 13.2 of the GTC and/or to claim damages from the Service Provider.
6 - OBLIGATIONS OF ATF
ATF undertakes to provide the Service Provider, upon request, with the documentation in its possession that is useful for the performance of the Services. All documentation communicated by ATF to the Service Provider is provided for information purposes only and it is the Service Provider's responsibility to check the information contained in this documentation.
7 - PERFORMANCE MONITORING AND INSPECTION BY ATF
ATF may inspect at any time on the Site(s) the proper performance of the Services by the Service Provider and its Subcontractors, if any, until the Services are completed in accordance with the requirements. The Service Provider and its Subcontractors, if any, are required to ensure free access to the Site(s) during working hours for ATF's representatives and to give them every facility for the performance of their mission. The exercise of this right by ATF does not diminish the contractual responsibility of the Service Provider, in particular with regard to the scope of its own controls, and does not affect the rights of ATF to exercise the rights listed below.
8 - FAILURE OF THE PROVIDER
If ATF becomes aware of a breach by the Service Provider in the performance of its obligations under the Order, it shall notify the Service Provider of such breaches and, where appropriate, of its decision to suspend the performance of the Services. ATF also reserves the right to withhold invoices in accordance with Article 4.3 of these GTC. Within twenty-four (24) hours of this notification, the Service Provider shall inform ATF of the corrective actions it intends to take. The Parties shall then determine the deadlines that they deem acceptable to remedy the notified breaches and allow the resumption of the performance of the Order, where the latter has been suspended. Any delays resulting from suspensions shall be subject to the late payment penalties set forth in Article 5.2.2. If the Service Provider does not take the corrective actions provided for above and accepted by ATF within the requested timeframe, or immediately after having noted the Service Provider's failure if the urgency justifies it, ATF may:
1. grant the Service Provider an extension of time, with the penalties for delay provided for in Article 5.2.2 remaining applicable as of right as of the date of performance of the Services initially provided for in the Order;
2. to take all measures necessary for the performance of the Order, and in particular to complete the Services itself or to have them completed by a third party at the Supplier's expense
3. to carry out itself or to have a third party carry out the rectification and/or repair of any defects in the Services at the expense of the Service Provider;
4. apply its rights of suspension and/or termination as set forth in Article 13. The Service Provider may not invoke the repair or intervention carried out by ATF or by a third party, pursuant to this article, to modify the scope of its responsibilities. ATF may exercise the aforementioned rights without prejudice to any claim for damages for the loss suffered as a result of the Provider's breach.
9 - ACCEPTANCE OF SERVICES - TRANSFER OF OWNERSHIP
9.1 Acceptance of Services
Acceptance of the Services shall take place in writing after ATF has verified that the Services comply in all respects with all of the conditions and requirements of the Order and, where applicable, after ATF has received the documentation and Deliverables provided for in the Order, and after verification, in the case of Services linked to training services, of the average score of the evaluation forms filled in by the trainees, which must not be less than 12/20 (twelve out of twenty). The verification of the Services shall be carried out within a reasonable period of time from the end of their execution by the Provider. ATF may declare acceptance with reservations, if necessary, in the event of a minor defect that does not affect safety. The Service Provider must remedy the defect within the period set by ATF. The commencement of use of the Result by ATF or the payment of all or part of the price of the Services does not constitute Acceptance.
9.2 Transfer of ownership
If the performance of the Services entails the delivery of one or more tangible and/or intangible items, in particular the supply of materials and/or Deliverables, by the Service Provider to ATF, the transfer of ownership of the item(s) to ATF shall take place as and when they are performed by the Service Provider. Similarly, if the Services include the transfer of ownership of intellectual property rights to ATF, the transfer of ownership of these rights shall take place as and when they are realised by the Service Provider. No retention of title clause may be invoked against ATF by the Service Provider, who shall ensure that its Subcontractors agree to the same. The transfer of ownership shall in no way limit the Service Provider's liability for the Services.
10 - GUARANTEE PERIOD - SCOPE OF THE GUARANTEE - ADDITIONAL GUARANTEES
10.1 Warranty period
The Service Provider warrants the Services covered by the Order for an initial period of twelve (12) months, unless otherwise indicated in the Purchase Order. The warranty shall begin to run from the date of RECEIPT of the Services by ATF under the conditions of Article 9.1 of these GTC. If, during the warranty period, it is necessary to make a correction, rework or modification of the Services pursuant to this article, said Services shall be subject to a new warranty period of twelve (12) months from the date of acceptance by ATF of the corrections, rework or modifications.
10.2 Scope of the warranty
The Service Provider's warranty covers, in particular, any poor performance of the Services, any defects and any non-conformity of the Services with the specifications of the Order. Until the expiry of the warranty period including any extensions as provided for in Article 10.1 of these GTC, the Service Provider is obliged to correct, repair or modify the Services free of charge and/or to visit the Site(s) to provide technical assistance in order to carry out any corrections, rework or modifications free of charge so that the Services continue to comply with the conditions of the Order. All costs, including labour costs, resulting from the implementation of the warranty shall be borne in full by the Service Provider.
10.3 Legal guarantees
In addition to the contractual warranty described above, ATF shall benefit from all applicable mandatory and supplementary legal warranties, as well as the warranties of its Subcontractors.
10.4 Assignment of guarantees
All of the warranties provided for in this Article 9 may be transferred to a third party without the Service Provider's prior agreement.
11 - RESPONSIBILITIES - INSURANCE
11.1 Responsibilities
The Service Provider shall perform the Order under its entire and exclusive responsibility. It shall be liable to ATF and to third parties for any damage whatsoever caused in the performance of the Order by itself and/or by persons or property under its authority or custody and/or by its Subcontractors. The Service Provider shall be liable for all the consequences, direct or indirect, of the prejudice and damage caused to ATF as a result of the non-performance or poor performance of the Order.
11.2 Insurance
The Service Provider shall, at its own expense, take out with companies that are known to be solvent and shall maintain in force during the performance of the Order, including any extensions, all insurance policies guaranteeing its civil liability and covering, in particular, the financial consequences of bodily injury, property damage and consequential loss caused to third parties and to ATF (operational and post-delivery civil liability) as well as its professional civil liability in the context of the performance of the Order, until the end of the contractual guarantee period; any insurance policy covering damage to its personnel in the event of performance of the Services in a country where there is no legal system of social security cover; in the event that the performance of the Services involves the supply of materials, transport insurance (including unloading) to cover physical loss or damage to any supplies up to the total replacement cost plus taxes and customs duties until delivery to the Site; insurance against theft, deterioration, damage, loss, destruction and damage of any kind to its goods stored on the Site and which are necessary for the performance of the Order. The Service Provider undertakes to obtain the same insurance from its Subcontractors. The Service Provider undertakes to include in the insurance policy(ies) that it takes out, a waiver of all recourse against ATF and the latter's insurers. The Service Provider undertakes to obtain the same waiver from its Subcontractors. The Service Provider undertakes to provide ATF at any time, upon request by the latter, with insurance certificates less than one month old, justifying that the insurance policies required under this article are in force. If the Service Provider fails to provide such proof, ATF reserves the right to terminate the Order in accordance with Article 13.2. The Contractor shall be liable for any damage or loss for which it is responsible and which is not covered by the above insurance policies.
12 – FORCE MAJEURE
Force Majeure shall mean any unforeseeable and irresistible event beyond the control of the Parties, the occurrence of which makes it impossible to perform the Order. However, the following shall not be considered as force majeure events: an increase in the price of labour, delay by Subcontractors, fire or explosion immobilising the premises of the Service Provider and/or its Subcontractors, strike, natural disasters not covered by a ministerial order, this list not being exhaustive. In the event of an event of force majeure, the Service Provider shall inform ATF by registered letter within forty-eight (48) hours, justifying the facts invoked and the impact on the performance of the Order. The Service Provider shall take all necessary measures to minimise the effects of force majeure on the performance of the Order. If ATF recognises the existence of an event of force majeure, it shall notify the Service Provider thereof. ATF may exempt the Service Provider from liability for failure or delay in the performance of the Order if it is established that the failure or delay is due exclusively to an event of force majeure and that, despite its best efforts, the Service Provider was unable to avoid the effects on the performance of the Order. If an event of force majeure persists, ATF may contract the Services covered by this Order with another Service Provider, without any compensation being paid to the Service Provider, it being understood that the Order may be amended accordingly. The Service Provider shall then be paid for the part of the Order already completed. Failure to notify ATF of the occurrence of an event of force majeure within the time limit set shall constitute acceptance by the Service Provider of all the consequences, in particular the financial consequences, resulting from the event of force majeure. The price of the Order may not be modified following an event of force majeure, but ATF may grant the Service Provider additional time to complete the Order. No event, even of force majeure, occurring after the contractual deadlines, and worsening an already unjustified delay, shall be taken into consideration.
13 - SUSPENSION - CANCELLATION BY ATF
13.1 Suspension
At any time, by giving forty-eight (48) hours' notice, except in cases of emergency, ATF may order the Service Provider to suspend performance of all or part of the Order. The Service Provider shall comply with such order until ATF notifies the Service Provider in writing that performance of the Order may resume. ATF shall pay the Contractor for the part of the Order performed. The time limit set out in the Order shall be extended for the duration of the suspension, except where the suspension is the result of the Service Provider's breach of its obligations.
13.2 Immediate termination for breach of duty by the Contractor
In the event of the Service Provider's failure to comply with any of its obligations under the Order, ATF shall have the right to terminate the Order, in whole or in part, by operation of law, without any judicial formality and without prior notice, upon simple notification to the Service Provider by registered letter with acknowledgement of receipt, without any compensation due to the Service Provider.
13.3 Termination for convenience by ATF
ATF may at any time, before or after the commencement of the performance of the Services, terminate the Order in whole or in part, by operation of law and without having to justify any reason whatsoever, subject to a minimum of one week's written notice to the Service Provider by registered letter with acknowledgement of receipt. In this case, ATF shall pay the Service Provider the price of the part of the Services actually performed on the date of termination (subject to their compliance with the Order) as well as the costs incurred by the Service Provider directly and reasonably related to the termination, upon presentation of supporting documents. Upon notification of termination, the Service Provider shall immediately cease further performance of the Services and shall take all steps to minimise the above amounts.
13.4 Termination in case of force majeure
In the event of an event of force majeure lasting for a period of seven (7) calendar days (consecutive or in total during the period of performance of the Order), ATF may terminate the Order, in whole or in part, as of right and without any judicial formalities, by notification sent to the Service Provider by registered letter with acknowledgement of receipt and without compensation for the latter.
13.5 Termination in the event of a change in the Provider's legal status
The Service Provider undertakes to declare to ATF any change that may occur in the composition of its capital, such as a change of majority, merger or takeover, as well as any judgement to open collective proceedings to which its company may be subject, such as a receivership or judicial liquidation. Unless prohibited by law or regulation, ATF shall have the right to terminate the Order without notice upon receipt of the said declaration by the Service Provider, or as soon as ATF becomes aware of the change in the Service Provider's legal situation or the opening of collective proceedings against the Service Provider.
13.6 Obligations of the Provider in the event of termination
On the effective date of termination, the Contractor shall
1. cease all work and release the Site,
2. assign to ATF all rights to any materials necessary for the performance of the Services,
3. deliver to ATF all documents, in particular plans, studies, drawings, specifications, prepared by the Service Provider or its Subcontractors for the performance of the Services,
4. return to ATF any sum paid in excess of the price of the part of the Services performed.
The Service Provider shall be duly summoned to make observations relating to the Services performed and a report of these operations shall be drawn up. The drawing up of this report shall constitute Acceptance of the Services performed and shall mark the starting point of the guarantee provided for in Articles 10.1 and 10.2. ATF will also benefit from the other legal guarantees as provided for in article 10.3.
14 - CONFIDENTIALITY
The Service Provider shall not communicate to anyone, without ATF's prior written consent, all or part of the documents, information and data relating to ATF's business or to the Order or its performance and to which the Service Provider has had access. The Service Provider undertakes to ensure that its staff, suppliers and Subcontractors respect this obligation of confidentiality. This obligation of confidentiality shall remain in force for a period of five (5) years from the completion or early termination of the Order.
15 - NON-SOLICITATION
Unless ATF gives its prior written consent, the Service Provider undertakes not to hire or work in any way whatsoever, directly or indirectly, with any ATF collaborator, regardless of their legal or social status, during the performance of the Contract, and for a period of two years from the expiry of the Contract, even if the request comes from the said collaborator. In the event of non-compliance with this clause, ATF may claim compensation of a minimum amount of one hundred thousand euros, excluding taxes, per employee, calculated according to the following formula: twelve times the last gross monthly remuneration, calculated on the average of the last three months, received by the employee thus dismissed. Similarly, unless ATF gives its prior written consent, the Service Provider undertakes not to work in any way whatsoever, directly or indirectly, with an ATF client company encountered by the Service Provider during the performance of the Contract, regardless of its legal and social status, for the duration of the performance of the Contract, and for a period of two years from the expiry of the Contract, even if the solicitation comes from the ATF client company. In the event of non-compliance with this clause, ATF may claim compensation of a minimum amount of two hundred thousand euros excluding tax and calculated according to the following formula: ATF's turnover invoiced during the last twelve months prior to the expiry of this Contract to the company that is ATF's client and that has been solicited.
16 - COMMUNICATION AND ADVERTISING
Any film, photograph, article, notice or advertising document relating to or connected with the Order must be submitted to ATF for prior written approval before any disclosure and/or publication. The Service Provider shall refrain from using or referring to the corporate names or trademarks of the ATF group for any purpose whatsoever, without the prior, express and written authorisation of ATF.
17 - ASSIGNMENT OF THE ORDER
17.1 Assignment by ATF
ATF reserves the right to assign all or part of the Order to a third party, without the need for the Service Provider's prior agreement.
17.2 Assignment by the Service Provider
The Service Provider shall not assign the Order to third parties, even in part, without the prior written consent of ATF. In all cases of assignment of the Order to third parties, all of ATF's rights resulting from this Order, including the right to claim damages, shall be enforceable against the latter. In any event, ATF's approval of the proposed assignment shall not release the Service Provider from its obligations under the Order. The Service Provider shall remain, unless expressly stipulated otherwise, jointly and severally liable, vis-à-vis ATF, for the full and complete performance of the Order. Any assignment of the Order by the Service Provider in breach of this Article shall be void.
18 - CORRESPONDENCES
Any notice given under the Order shall be given in writing (by hand delivery, electronic message, facsimile or registered letter with acknowledgement of receipt) to a Representative of the other Party, the date of notification being the date of receipt by the receiving Party.
19 - APPLICABLE LAW
The Order shall be governed, in particular as regards its validity, interpretation and performance, solely by French law, to the exclusion of any rules of conflict of laws which might lead to the application of a law other than French law.
20 - SETTLEMENT OF DISPUTES
Any dispute arising in connection with the interpretation and/or performance and/or termination of the Order shall, in the first instance and as far as possible, be settled by amicable negotiation between the Parties. In the event of failure to reach an amicable agreement between the Parties within thirty (30) calendar days from the date of the first notification of the dispute, the dispute shall, at the written request of a Party, be submitted to the Commercial Court of Evry, to which the Parties attribute exclusive jurisdiction, notwithstanding multiple defendants and third-party appeals, including for emergency and conservatory procedures, in summary proceedings or on request. However, ATF reserves the right to refer the matter to the court of the Provider's registered office and in this case, to waive the application of its own legislation.
21 - MISCELLANEOUS
The headings in these GTC are purely indicative and their wording shall not influence the interpretation of the provisions to which they refer. The fact that ATF does not require the strict application of any clause of these GTC shall not be considered as a waiver of the right to invoke it in the future.
GCA of HATOM INTÉGRATION (Les Marines de Limay)
1. ACCEPTANCE and OPPOSITABILITY of the GTC
The present General Terms and Conditions of Sale (GTCS) apply by right to all sales concluded by LES MARINES DE LIMAY with any professional buyer, whatever the clauses that may appear on the documents issued by this buyer and in particular its own general terms and conditions of purchase.
The fact that LES MARINES DE LIMAY does not avail itself, at a given moment, of any of the provisions of the GTCs can in no way be interpreted as a waiver on its part to avail itself of them later, in particular the fact of not claiming a late payment.
2. OFFERS - QUOTES - CATALOGUES
Quotations and offers made by LES MARINES DE LIMAY to a buyer are valid for three (3) months from their date of issue by LES MARINES DE LIMAY, unless otherwise stipulated.
3. ORDERS
All deliveries must be preceded by a written order issued by the Client. Orders only become firm after written acceptance by the seller, constituted by an acknowledgement of receipt of order (AR of order) issued by LES MARINES DE LIMAY within five working days of receipt of the order (excluding closing period) and sent to the customer who accepts the characteristics of the products as well as the sales conditions indicated on the AR.
The contract is definitively concluded on the day the buyer receives the acknowledgement of receipt of the order issued by LES MARINES DE LIMAY within the above mentioned period. Once the contract has been concluded, any cancellation or modification will have to be subject to a prior written agreement from LES MARINES DE LIMAY. In all cases, the full price of the sale remains due.
Any request for modification, postponement or cancellation of an order made by the buyer can only be taken into consideration if it is received in writing by the seller before the supply or the order of the specific components or subcontracts for the manufacture of the product.
Any completed or started order will be invoiced in full or in part according to the progress of the project and for a minimum amount of 30% of the said order. The benefit of the order is personal and may not be transferred to a third party
transferred to a third party, except with the prior written agreement of the seller. In the event of a significant change in the situation of our client (death, incapacity, dissolution, change of status, filing for bankruptcy, etc.) we reserve the right, even after partial execution of an order, to demand guarantees or to cancel the balance of this order.
4. PLANS AND STUDIES
The responsibility of LES MARINES DE LIMAY, within the framework of a study carried out by a design office acting as a subcontractor, can only be engaged within the strict limits of the services ordered. The service entitled: "Technical opinion on the capacity of the building to receive the work(s)" is the only service engaging the responsibility of Les Marines de Limay on the building aspects relating to the validation of the resistance of the building to support our works and fixings. Failure to order this service exonerates Les Marines de Limay from all responsibility in this field, the client having chosen to call on another service provider. The plans, studies and estimates drawn up at the request of our clients remain our intellectual property and must not be communicated to third parties, nor executed without our written authorisation. Composite calculation notes remain optional and it is exclusively up to the client to determine whether they are suitable for the execution of the services and works requested.
5. DELIVERY - DEADLINES - RISKS
The delivery times for our products indicated by the seller are from the date of the order acknowledgement or, in the case of contracts stipulating the payment of a deposit, on receipt of the bank notification of payment by the buyer. These deadlines are only given as an indication and depend on the order of arrival of orders, availability and transport possibilities. The buyer may not invoke them to claim the cancellation of the order, penalties or compensation, and/or a refusal to pay the price or the deposits provided for in the order. Even in the case of formal acceptance by the seller of deadlines, the exceeding of which would entail penalties, the execution of the supplies may be suspended or delayed, without compensation to be paid by the seller, if the payment conditions are not observed by the buyer and/or if the information necessary for the management of the order has not been provided in due time by the buyer. The date of delivery is the date of availability of the goods in our workshops or warehouses, or on site, as specified on the order acceptance. Delivery shall be deemed to have been made either by direct handover to the purchaser, or by simple notification that the goods are available in our factories, or by delivery of the goods in our workshops to a shipper or carrier chosen by the purchaser or, failing this, by the seller. The shipping costs are to be paid by the buyer. The rules for the transfer of risk to the buyer are governed by Incoterms 2010, the application of which has been agreed between the parties to govern their relationship in this respect.
Unless otherwise agreed, the products are delivered EXW to the warehouses of LES MARINES DE LIMAY. If, in application of the agreed lncoterm, the goods travel at the risk of the customer, the latter is obliged to take all measures to guarantee their theft or loss, from the moment they leave the warehouses of LES MARINES DE LIMAY. Furthermore, without prejudice to the measures to be taken with regard to the carrier, any dispute, from the buyer or his service provider, on the apparent defects must be made at the latest within two (2) days of the reception of the goods, whatever the stipulated Incoterms. In the absence of a claim confirmed within this period by registered letter with acknowledgement of receipt, no claim for apparent defects will be accepted by LES MARINES DE LIMAY.
6.GUARANTEE
Except for a more important contractual guarantee expressly proposed by LES MARINES DE LIMAY on the resistance of the composite material facings, LES MARINES DE LIMAY guarantees the material against any operating defect resulting from a material or manufacturing fault, for one year from the date of reception, which is defined by the date affixed on the reception report with or without reservations or, failing that, the delivery note, and in any case, at the latest, within one month of the date appearing on the sales invoice.
This guarantee includes exclusively, at LES MARINES DE LIMAY's sole discretion, the exchange or repair, in our workshops, of the material or part recognised as defective. The guarantee only applies if the customer is in possession of the invoice (on which the delivery date and references appear) and if the information it contains is complete and legible. When replacement or additional equipment is supplied by LES MARINES DE LIMAY under warranty, their own warranty period is limited to the date specified for the original equipment. Parts given as replacements under this warranty do not extend the original warranty.
However, the warranty will not apply in the following cases: Negligence in the storage of the equipment; Installation and/or maintenance not conforming to the rules of the art and/or to the installation, use or maintenance manuals and more generally any intervention of any kind carried out by a person not under the authority of LES MARINES DE LIMAY; Malfunctioning resulting from the addition of parts or devices not originating from LES MARINES DE LIMAY; Repairs or modifications carried out on the equipment without the prior written agreement of LES MARINES DE LIMAY; Modifications to the equipment making it non-conform to the technical specifications ; Putting into service by the client without the prior written authorisation of LES MARINES DE LIMAY; Surface oxidation and/or defect in appearance or colour even if the material is coated with a layer of primer paint; Deterioration of the material resulting directly or indirectly from accidents of all kinds, shock, overvoltage, lightning, flooding, fire and in general all causes other than those resulting from normal use or any other event of force majeure; Poor closure and/or use of the products comprising or constituting openings.
EXCEPT IN THE CASE OF A LEGAL GUARANTEE, LES MARINES DE LIMAY DOES NOT ASSUME ANY OTHER GUARANTEE OBLIGATION, EXPRESS OR IMPLIED, THAN THAT STIPULATED IN THIS ARTICLE.
Except in the case of malice aforethought, LES MARINES DE LIMAY can in no case be held liable to the Client when the products delivered are in conformity with the order and the services provided are in conformity with the rules of the trade.
In any case, LES MARINES DE LIMAY will not be held responsible towards the client or a third party for any indirect damage, in particular operating loss, loss of clientele, commercial loss, damage to the brand image, resulting from the possession or use of the products or services. In any case, except in the case of malice, the liability of LES MARINES DE LIMAY will not exceed the amount paid by the client for his obligations. LES MARINES DE LIMA Y will always be able to prevent a liability action by bringing the product into conformity or by replacing the non-conforming product.
Unless expressly stipulated otherwise, the seller only guarantees the suitability of the product for the use for which it was designed and not for the use for which the buyer could intend it. The buyer must strictly and imperatively comply with the laws, regulations and prescriptions applicable to the products and their installation and must take the usual precautions for their use. He is in particular responsible for all accidents and physical or material damages resulting from a defect of installation, use, handling or maintenance.
Any claim by the client against LES MARINES DE LIMAY must be made by registered letter with acknowledgement of receipt sent at the latest within 2 days of the alleged non-performance. This dispute must be precisely motivated. The failure to do so means that the customer waives the liability of LES MARINES DE LIMAY.
The guarantee does not apply in case of defects resulting either from materials or accessories supplied or imposed by the buyer, or from a design imposed by the buyer. It is the buyer's responsibility to prove that the defect is caused by us. The resale of our supplies to third parties in the same condition as they were delivered shall result in the loss of our warranty rights. A coloured Gelcoat is not equivalent to a paint, it may be subject to ageing with a change in colour over time, particularly for darker colours. Consequently, we cannot guarantee the stability of the colour over time, and we cannot be held responsible for any deterioration in colour over time. The MARINES DE LIMAY guarantee does not apply in the event of the appearance of small cracks due to prolonged exposure to the sun of panels painted in a dark colour by the customer or a third party, which can generate significant heating. This risk is increased by the use of unsuitable paints or painting procedures.
7. PRICE
The products are invoiced, in euros, at the price in force at the time of the order, which is communicated on request of the buyer and appears on the accepted quotation or, failing that, on the acknowledgement of receipt of the order issued by LES MARINES DE LIMAY in accordance with article 3 above. The prices are exclusive of tax from LIMAY (78), excluding postage and packing. All special requests for packaging, packing or delivery times will be invoiced in addition after agreement with the customer. No discount is accepted for early payment.
8. PAYMENT
All our invoices are payable at our head office, according to the terms of payment specified on the accepted quotation or, failing that, on the corresponding order acknowledgement, issued by LES MARINES DE LIMAY. The payment of a deposit upon acceptance of the order will be stipulated, the amount of which will vary according to the amount of the order and/or the nature of the materials ordered. Any sum not paid on its due date and after prior formal notice sent by registered letter giving a final period of eight (8) days to proceed with its payment, which has remained unsuccessful, shall automatically generate late payment interest at the monthly rate of EURIBOR 3 months plus six points. This interest shall be due until the day of full payment of the sum due. In case of payment in instalments, the failure to pay a single instalment on the agreed date will automatically lead to the immediate payment of the totality of the debt of LES MARINES DE LIMAY which reserves the right to make the execution of any subsequent delivery subject to this payment. Moreover, by express agreement, all collection costs incurred by LES MARINES DE LIMAY will be charged to the buyer. In case of excessive delay of the construction site with impossibility to install our products (more than 1 month from the planned date) and without the responsibility of LES MARINES DE LIMAY being engaged, LES MARINES DE LIMAY reserves the right to invoice the value of the ordered products and services already provided on the day of the invoice. If necessary, any partial payment of an invoice will be first and foremost and by right charged to the non-preferential part of our claim.
9. FORCE MAJEURE
The seller shall not be liable for any delay or failure to deliver due to an event beyond its control that prevents the manufacture, shipment, delivery or installation of the products. Thus, war, strikes, epidemics, partial or total interruption of transport, shortage of raw materials, impediments resulting from the provisions of the authorities in matters of import, exchange or internal economic regulations, incidents and accidents of all causes leading to the unemployment of all or part of the factories, unforeseeable difficulties revealed during the execution of an installation and, in general, any fortuitous event or force majeure, automatically authorises the suspension of contracts in progress or their late execution without compensation or damages. In such cases, we reserve the right to cancel the order in question, in part or in full.
10. RETENTION OF TITLE
The products sold remain the property of the seller until the effective payment of all invoices and accessories. If the buyer fails to pay a single fraction of the price on the agreed due dates, the seller shall be entitled to terminate the sale and reclaim the goods by right. During the period of retention of title, the risks are transferred to the buyer from the day the equipment is made available: the responsibility for the goods is transferred to the buyer who must ensure their conservation; the buyer remains responsible for any loss or damage to the equipment. In the event of the buyer's bankruptcy, receivership or liquidation proceedings, the seller may claim ownership of the goods delivered and not paid for. In the event of a claim, the deposits already paid shall remain the property of Les Marines de Limay as compensation for other sums due by the buyer. All clauses to the contrary inserted on the order forms or any other document will be considered null and void.
11. ATTRIBUTION OF JURISDICTION
The parties expressly agree that the Commercial Court of our registered office has jurisdiction.