ENERSENS TERMS AND CONDITIONS OF SALE
1 – General information. All sales of products, accessories or services (“Product”) excluding R&D, between ENERSENS, its subsidiaries, agents or authorized representatives (the “Company”), on one hand, and the customer, its subsidiaries, agents or authorized representatives (the “Customer”), on the other hand, are exclusively governed by the present terms and conditions of sale (“TCS”). As a result, any stipulation or condition appearing in any document from the Customer (purchase orders, terms and conditions of purchase, prospectuses, catalogues, etc.) are inapplicable to the TCS and shall not be binding upon the Company except if specifically agreed in writing by the Company. Any order placed by the Customer with the Company is deemed as definitive acceptance without reservation of the TCS. Any departure from the TCS requires express approval in writing from the Company; in particular any agreement between the parties that include special terms and conditions derogating from the TCS (“STC”) must be concluded in writing. In case of conflict between the STC and the TCS, the former prevail. In case any of the provisions of the TCS were to become, in part or in whole, invalid, inapplicable or illegal, the validity of the other provisions of the TCS would not be affected. The fact that the Company does not avail itself at a given time of any one of the present provisions may not be interpreted as renunciation of its right to avail itself of said provisions at a later time.
2 – Order. Any documents, catalogues or price estimates provided by the Company to the Customer are only provided for informational purposes. Any order must be sent in writing by the Customer to the Company; it only commits the Company if it is accepted in writing by the Company, but acceptance of the order by the Company may also result from delivery of the Product (“Accepted Order”). The Company reserves the right to refuse any order without prior notice; no indemnity or other compensation may be demanded from the Company. The Accepted Order and the TCS, completed, if applicable, by the STC appearing in the Accepted Order, constitute the entire agreement between the Company and the Customer, and cancel and replace any other provisions and any oral and/or written exchanges between the parties which have not been expressly included in the Accepted Order. No Accepted Order may be modified without express approval in writing from the Company. Any Accepted Order must be executed by the Customer, which is notably required to take delivery of the Product and to pay the Price for it. The Customer may not relinquish the benefit of an Accepted Order without obtaining prior approval in writing from the Company.
3 – Price. Unless otherwise expressly agreed in writing, the price conforms to prices in effect as of the date of the Accepted Order (“Price”). Unless otherwise expressly stipulated, the Price is in Euros, is expressed Ex-Works at the location specified in the Accepted Order and does not include taxes (in particular VAT where applicable) or any imposition; the Customer shall pay these taxes and impositions directly or will reimburse the Company if it is required to pay them. Unless otherwise expressly agreed in writing, all expenses (such as, loading, transport, storage, insurance, customs and other expenses) are the responsibility of the Customer. However, the Price may be modified by the Company at any time up to delivery, notably in case of a change in tax and economic information that increases the cost price of the Product; increases are then carried to the Price, after simple notification, in conformity with the new prices in effect.
4 – Payment of the Price to the Company. Timeframe for payment: unless otherwise expressly agreed in writing, the Price is payable in Euros, in totality and in a single payment within a period of thirty (30) days following the date of delivery. The payment timeframe for periodic invoices may not surpass 45 days date of issue of the invoice. Payment default: in case of payment default for the Price on the due date, and without prejudice to damages: – late penalties are automatically due to the Company without any prior formality or prior notice. The amounts (including tax) due by the Customer generate interest at the rate applied by the European Central Bank to its most recent refinancing operation (“REFI” rate), increased by ten (10) percentage points; – a set indemnity for collection, in the amount of 40.00 €, is due by the Customer without prior notice. The Company may claim additional indemnification if the expenses for recovery effectively incurred surpass this amount, upon presentation of documentation; – the Company may, without prior notice, suspend any Accepted Orders and/or deliveries in progress; – forty-eight (48) hours after formal notice to pay which has been to no avail, the Company may cancel any Accepted Order and demand return of the Product already delivered.
If payment over time has been agreed between the Parties, non-payment of a single payment by the due date automatically results in forfeiture of the term, and the entire receivable shall become payable immediately. In case of deliveries staggered over time, the absence of payment for a single delivery authorizes the Company to treat the Accepted Order as canceled, without prior notice or formality and without prejudice to damages. In case of serious downgrade in the situation of the Customer and/or of his country of residence or business, causing justified concerns about collection of its receivable, the Company reserves the right to cancel or suspend Accepted Orders in progress and/or to require guarantees and/or, otherwise, immediate payment of its receivable after simple formal notice. Eventual complaints about a delivered Product do not excuse the Customer from paying the Price by the due date.
5 – Delivery – Conditions – Timeframes. Delivery takes place by making the Product available to the Customer at the location specified in the Accepted Order. Unless otherwise agreed in writing, delivery takes place Ex-Works (in accordance with the Incoterms® 2020 published by ICC in force on the Accepted Order date). Delivery timeframes are provided for informational purposes. The Company will use every commercially reasonable effort to make deliveries as scheduled and may make partial deliveries. Delivery timeframes may not under any circumstances result in late penalties, damages, holdback, order cancellation or refusal to take delivery, regardless of the causes, significance and consequences of the delay. All deliveries are subject to the normally accepted tolerances as to dimensions and weights. The Product must be picked up by the Customer as soon as it is made available. After formal notice to collect the Product which is been to no avail for fifteen (15) days, the Company may, at any time, destroy the Product. The Customer remains responsible for paying the Price for it. Beyond a period of two (2) months following the date that the Product is made available, storage of it by the Company results in an increase of the Price by 2% per month of lateness, with any month started being deemed as due. The Customer is responsible for the use of the Product once delivered.
6 – Transfer of risks – Transport. Notwithstanding the retention of ownership by ENERSENS, transfer of the risks of loss and/or damage of the Product takes place upon delivery, regardless of the conditions of payment of the Price and/or of transport. The Customer agrees to cover the Product, as soon as it is delivered, by insurance covering the risks of loss, damage, theft, explosion and destruction, until transfer of ownership of the Product. Pick-up, loading and transport are done under the sole responsibility of the Customer by the transporter chosen by the Customer, or otherwise by the Company. The liability of the Company may not be engaged in any manner at the time of pick-up, loading and/or transport of the Product. It is exclusively the responsibility of the Customer to make all observations and express all reserves regarding its rights vis-à-vis the transporter by stating its reserves within the timeframes and terms set by applicable regulations.
7 – Conformity and return of the Product – Guarantee. Unless otherwise agreed in writing, the specifications of the Product are set out only by the Company. THE COMPANY APPROVES NO GUARANTEE OTHER THAN THAT OF CONFORMITY OF THE PRODUCT DELIVERED TO THE TECHNICAL SPECIFICATIONS OF THE ACCEPTED ORDER AT THE TIME OF DELIVERY. This guarantee may not be extended to any other object. It is granted to the exclusive benefit of the Customer doing business directly with the Company. At the time of delivery, the Customer is required to verify the conformity of the Product to the technical specifications of the Accepted Order. Any reserves regarding conformity of the Product delivered must be mentioned on the delivery slip and confirmed in writing, which must be received by the Company within a period of eight (8) business days following delivery; beyond this timeframe, no complaint is admissible except in case of a defect that was not apparent at the time of delivery. In this case, no complaint against the Company will be accepted if the Customer has not notified the Company, by registered letter with confirmation of receipt, about its complaint upon discovering the defect and within the limits of six (6) months following delivery. The Customer must justify the information in its complaint and grant the Company all latitude to observe it. The Company may make application of the Guarantee contingent on the result of its physical or chemical examination to establish the legitimacy of the complaint from the Customer. The guarantee granted strictly limited to the obligation of the Company, at its discretion, to replace the Product or to establish credit, to the exclusion of any other obligation or repair of any kind at all. Any Product return must be approved by the Company to give way to establishment of credit or replacement. Where the Customer has not submitted its claim to the Company within the time periods indicated above or if having done so, the Customer uses or transfers the Product to third parties, the Company cannot be held liable for any damage of any nature which may result from its use. OTHER THAN AS STATED IN THIS ARTICLE 7, THE COMPANY MAKES NO OTHER WARRANTY OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8 – Retention of ownership. UNLESS OTHERWISE ACCEPTED IN WRITING BY THE COMPANY BEFOREHAND, TRANSFER OF OWNERSHIP OF THE PRODUCT IS SUSPENDED UNTIL FULL PAYMENT OF THE PRICE AND RELATED CHARGES HAS BEEN EFFECTIVELY RECEIVED BY THE COMPANY. AS A RESULT, THE CUSTOMER IS PROHIBITED FROM GRANTING THIRD PARTIES ANY RIGHT WHICH COULD POSE A THREAT TO EXERCISING THIS CLAUSE. Meanwhile, the Company authorizes the Customer to sell the Product to its own customers, with the understanding that this sale shall be done on behalf of the Company. The Customer informs the buyer about the existence of the clause of retention of ownership, under penalty of engaging its liability. The Product still in possession of the Customer is presumed as being that for which payment is outstanding. As a result, the Company may reclaim it without prejudice to any action for damages due to total or partial non-payment of the Price and the related charges. Without the need for notification or other formalities, the Company reserves the right to, at the Customer’s expense, take back (in any place and/or from any entity where it is found) any Product delivered or in the process of being delivered. The return value of the Product is equal to the purchase price excluding taxes, decreased by financial expenses incurred between the payment date and the date of return of the Product; the condition of the Product at the time of return is taken into account.
9 – Liability. Technical information and advice eventually provided by the Company are only provided for informational purposes. Except in the case of gross negligence on the part of the Company and compensation for bodily injury, the liability of the Company is limited, all causes combined and irrespective of the basis of which it is established, to a maximum of indemnity equivalent to the Price paid by the Customer for the Product. In no event the Company shall be liable, in contract, tort, strict liability or under any other legal theory for any financial loss including incidental, indirect, special, or consequential damages, including but not limited to lost production, operating losses, losses due to transformation of the Product, business interruption losses, loss of profits, loss of commercial opportunity, or breach of reputation, regardless of whether or not the Company was informed about the possibility of such damages. The Company cannot be held liable in the event of (i) the non-compliant and/or unlawful use of the Product, (ii) inability to or (iii) delay in the performance of its obligations resulting from compliance with statutory or regulatory obligations, in particular in relation to the application of the Reach Regulation. The Customer guarantee the waiver of recourse by its insurers or any third parties with which it has a contractual relationship, against the Company and/or its insurers beyond the limits and exclusions mentioned above. The Customer declares and guarantees the Company that, in its capacity as a professional, it holds all necessary authorizations, particularly for using and storing the Product, that it has all information and skills necessary for use and storage of the Product and that it respects all applicable regulations.
10 – Packaging. Packaging entrusted, rented or loaned remains the property of the Company and may not be used in any manner other than that which is specific to the Product. They are exclusively for use with the Product. Any violation of this rule exposes the perpetrator to penal sanctions and to the payment of damages. Packaging must be returned to the Company in proper condition within a period of three (3) months following delivery. Otherwise, the Company reserves the right to bill the Customer for it and the Customer shall become the owner of it. In this case, the Customer is required to remove any mention of the former owner from the packaging, as well as any indications which do not correspond to the use of this packaging. The Company assumes no responsibility for use of the packaging by the Customer or by a third party. When packaging is supplied by the Customer, the Customer is solely responsible for the choice and the quality of the packaging to be used for the Product and the Customer guarantees that its packaging complies with the regulations in force and the requirements of the Company.
11 – Labeling. The Product is marked and labeled by the Company in conformity with regulations in force, notably relative to the handling and transport of dangerous materials. The Customer is required to respect the markings and labeling on the Product.
12 – Intellectual/Industrial Property – Confidentiality. Any elements which are covered by intellectual or industrial property rights, any know-how, technology, manufacturing process, method, formula, data, plan or, in general, any information provided by the Company to the Customer, or of which the Customer becomes aware as a result of its order, remains the exclusive property of the Company. They may not be used without written authorization from the Company or used by the Customer or reproduced or communicated to third parties for any reason or in any manner whatsoever. The Customer agrees to respect the confidentiality of all information that has been provided to it by the Company, or of which it has become aware as a result of the order, for a period of ten (10) years following the date of the Accepted Order.
13 – REACH Regulation (relative to registration, evaluation and authorization of chemical substances, as well as the restrictions applicable to these substances) (EC) Regulation no. 1907/2006 from the European Parliament and any subsequent text) (the “Regulations”). The Company manufactures, imports and markets Product in compliance with Regulations. The uses identified in the Safety Data Sheets (“SDS”) applicable to the Product within the meaning of the Regulations do not constitute an agreement between the parties as to the technical specification of the Product or any specific application. Under the Regulations, the Customer must, in particular, ensure that the conditions in which the Product is used comply with those described in the SDS. The Customer shall inform the Company about the use that it makes of the Product, about its manner(s) of use (in particular, the scenarios of exposure and other useful information about safety when using the Product) or those of which it is aware. The Company benefits from a right to use the information provided by the Customer for the purpose of satisfying the obligations of the Regulations. In case a Product becomes non-compliant with the Regulations, the Company reserves the right to (i) proceed with replacement of the concerned Product and/or process, and/or (ii) cancel the sale Accepted Order by informing the Customer of its decision by e-mail or by registered letter with confirmation of receipt by respecting prior notice of eight (8) days.
14 – Force Majeure. The occurrence of an event of force majeure shall release the Company from any contractual liability within the limits of the effects thereof. The Company has no obligation to procure the Product from alternative sources. Events which are assimilated to force majeure from a contractual standpoint and which constitute causes of termination or suspension of the obligations of the Company, without the possibility of recourse from the Customer, notably and without this list being exhaustive, include accidents affecting the production and storage of the Product, total or partial stoppage of the supply of raw materials or energy, fire, flooding, machine breakdown, total or partial strikes, administrative decisions, war or any external event which could be of a nature to delay or prevent execution of the obligations of the Company, or render it economically disproportionate. If the performance of its obligations is affected by an event of force majeure for a period of more than three (3) months the Company may terminate the contract with immediate effect.
15 – Applicable law – Assignment of jurisdiction. These TCS, any order or any contract related thereto, are subject to and interpreted according to French law, to the exclusion of its conflict of law rules and any other law. The application of any international convention is expressly excluded. In case of a disagreement, contestation or complaint arising with regard to the existence, validity, interpretation or execution of the TCS, of an order or of any contract related thereto, the parties agree to seek an amicable resolution to their dispute before initiating any legal action. IN THE ABSENCE OF AMICABLE RESOLUTION, ALL DISPUTES AND LITIGATIONS BETWEEN THE PARTIES SHALL BE SUBMITTED TO THE EXCLUSIVE JURISDICTION OF THE COMMERCE COURT OF VIENNE (ISÈRE – FRANCE), TO WHICH THE PARTIES EXPRESSLY ASSIGN JURISDICTION, EVEN IN CASE OF MULTIPLE DEFENDANTS OR THE INVOLVEMENT OF THIRD PARTIES. IN THE EVENT A CLAIM IS BROUGHT AGAINST THE CUSTOMER BY A THIRD PARTY IN A DIFFERENT COURT, THE CUSTOMER HEREBY WAIVES HIS RIGHT TO CALL THE COMPANY’S GUARANTEE BEFORE SUCH COURT SO THAT IN ANY EVENT THE CHOICE OF THE FORUM CLAUSE SHALL PREVAIL.