General terms and conditions of purchase
1. PURPOSE - SCOPE
These GTCPs are automatically applicable to all ORDERS/WORK CONTRACTS issued by CLESTRA, unless specifically agreed otherwise prior to the ORDER in writing between the PARTIES. Their purpose is to define the relational terms and conditions of the purchasing operations applicable between CLESTRA and its SUPPLIERS/SERVICE PROVIDERS. They govern both the purchase of SERVICES and the purchase of PRODUCTS by CLESTRA from SUPPLIERS and/or SERVICE SUPPLIERS, in particular in the context of the execution of WORK CONTRACTS.
These General Terms and Conditions of Purchase, hereinafter GTCPs, apply to the contracts which expressly refer to them. The GTCPs may be waived in the SPCs or in the Order.
The SUPPLIER/SERVICE PROVIDER is invited to negotiate the Special Purchase Clauses ("SPCs"), which supplement and/or amend these GTCPs. The GTCPs can only be modified by SPCs expressly stipulated in the ORDER.
The GTCPs may be waived in the SPCs or in the Order.
END CUSTOMER: Customer acquiring a product, work and/or a service. Within the framework of a WORK CONTRACT, it is the Client.
ORDER or SPCs: Document, issued by CLESTRA and addressed to the SUPPLIER/SERVICE PROVIDER, relating to the purchase and/or rental of a PRODUCT/SERVICE and including in particular the description of the PRODUCT/ SERVICE ordered, which will refer to the works contract to which it relates if applicable, the deadlines, the price and the reference to these GTCPs.
PARTY(IES): CLESTRA and/or the SUPPLIER/SERVICE PROVIDER
SERVICE: Service covered by the order
PRODUCT: Supply covered by the order
SUPPLIER/SERVICE PROVIDER: Company designated in the order responsible for supplying the materials, services, equipment and the means for their implementation.
WORK CONTRACT: Contract for the design, execution and completion of WORKS/works meeting the requirements set by CLESTRA as well as any ORDERS or ADDITIONAL or MODIFYING WORKS.
: Operation by which CLESTRA entrusts by a subcontract, and under its responsibility, to a company called the SUBCONTRACTOR, all or part of the execution of a works contract concluded with the END CUSTOMER.
ACCEPTANCE REPORT: Document signed by the various Parties, definitively acknowledging the completion of the work, with or without reservations. Acceptance transfers ownership of the work to the END CUSTOMER and is the starting point for the ten-year, two-year and completion guarantees.
PERSONAL DATA: Data as defined by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 ("GDPR"), i.e. any data allowing the identification of a natural person.
GDPR: General Data Protection Regulation, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016.
3. CONTRACTUAL DOCUMENTS
3.1 PURCHASE OF SERVICES AND/OR PRODUCTS
The relations between the PARTIES concerning the purchase of SERVICES and/or PRODUCTS shall be governed by the contractual documents designated in the SPCs constituting the ORDER.
By default, the specific documents prevail over the general documents;
3.2 SPECIAL CASE OF THE WORK CONTRACT
The contractual documents that make up the WORK CONTRACT are defined in the SPCs.
By default or in the absence of precision, the contractual documents are the following
- The SPCs or ORDER
- These GTCPs.
- Standard NFP 03-001 of October 20, 2017 for all matters not dealt with by the GTCPs.
- The regulatory technical documents in force, such as the D.T.U., N.F. standards or technical notices that the SUPPLIER/SERVICE PROVIDER expressly declares to be aware of and which are not attached to the WORK CONTRACT.
- All national, departmental and municipal legislative and administrative texts (laws, ordinances, regulations, circulars, orders, decrees, etc.): the applicable documents are those in force on the 1st of the month in which the prices are established, with the exception of regulations applicable as soon as they are published.
4. DUTY TO ADVISE
The SUPPLIER/SERVICE PROVIDER, in its capacity as a professional in its speciality, undertakes to provide CLESTRA with the recommendations and warnings necessary or useful for the quality and safety of the PRODUCTS/SERVICES, as well as the information decisive for CLESTRA's consent to the PRODUCTS/ SERVICES and their intended purpose.
In the event that the PRODUCTS/SERVICES are produced according to original plans drawn up by CLESTRA or according to CLESTRA's specifications, the SUPPLIER/SERVICE SUPPLIER must fulfil its obligation to provide advice, which is a decisive factor in the mission entrusted to it by CLESTRA. To this end, it shall in particular approve the subjects provided for or recommend those it considers appropriate for the work entrusted to it.
The SUPPLIER/SERVICE PROVIDER shall promptly report any errors or omissions in the plans, drawings, specifications and quantities and any difficulties which it may legitimately foresee.
During the execution of the ORDER/WORK CONTRACT, the SUPPLIER/ SERVICE PROVIDER must draw CLESTRA's attention to any defects or faults which may result from orders received for its own work or that of other trades; the SUPPLIER/SERVICE PROVIDER must take account of these in its PRODUCT/SERVICE without being able to claim a price increase as a result. In case of ambiguity, it is up to the SUPPLIER/ SERVICE PROVIDER to ask CLESTRA for the necessary clarifications.
With regard to the choice of execution techniques, the SUPPLIER/SERVICE PROVIDER assumes full responsibility within the framework of the regulations, norms, codes and standards in force at the time of acceptance of the work.
The PRODUCTS/SERVICE must comply with the best quality conditions and meet the state of the art required and be in accordance with the use for which they are intended. The SUPPLIER guarantees that each component of the PRODUCTS is new. The same guarantee extends to the condition of equipment deemed new taken from stock.
This obligation goes beyond mere information, it is the obligation to warn CLESTRA against certain risks inherent in the use of the PRODUCT or the expected performance within a reasonable period of time with regard to the impact and schedule of the project. CLESTRA expects an active participation of the SUPPLIER/SERVICE PROVIDER, who must encourage, recommend and advocate suitable solutions, which implies a perfect knowledge of CLESTRA's need, which it recognises and accepts.
5. RESULTS-BASED OBLIGATION
The SUPPLIER/SERVICE PROVIDER is bound by a results-based obligation for the performance of SERVICES/WORK CONTRACTS and the delivery of PRODUCTS.
It declares that it is fully aware of and accepts without exception or reservation all the conditions and obligations defined in the ORDER.
6. PLACING ORDERS (SPCs)
All purchases must be the subject of an ORDER. Under no circumstances may anyone claim a tacit agreement from CLESTRA. Only documents signed by an authorised representative of CLESTRA, bearing the commercial stamp and referring to these GTCPs are binding on CLESTRA.
6.1 Each ORDER must include:
- the description of the PRODUCT and/or SERVICE
- the price
- the quantity
- the delivery time
- the start and end dates of the SERVICE/performance of the WORK CONTRACT
- the payment method
Any modification of the ORDER shall be subject to a prior amendment signed by both PARTIES.
The SUPPLIER/SERVICE PROVIDER must acknowledge receipt of the ORDER within 48 hours of its notification by CLESTRA, by returning a copy of the ORDER and other attached contractual documents initialled, dated and signed by a duly authorised representative.
If the SUPPLIER/SERVICE PROVIDER fails to acknowledge receipt of the ORDER within the aforementioned 48-hour period, the ORDER shall be deemed to have been accepted by the SUPPLIER/SERVICE PROVIDER in its entirety.
The SUPPLIER/SERVICE PROVIDER undertakes to perform its obligations with all the care and diligence necessary for the proper completion of the ORDER under the conditions and within the time limits provided for therein. The SUPPLIER/SERVICE PROVIDER shall be solely responsible for the proper execution of the ORDER for which it is responsible and shall bear all risks and costs resulting from total or partial non-execution of the ORDER.
The SUPPLIER/SERVICE PROVIDER acknowledges the contractual value of the transmission of ORDERS and contractual documents as defined above by electronic means. Silence to any email sent within 48 hours from the date of issue is deemed to be acceptance.
6.2 special case of WORK CONTRACTS: The SUPPLIER/SERVICE PROVIDER must acknowledge receipt of the WORK CONTRACT within 10 calendar days of receipt of said contract by returning a copy of the WORK CONTRACT initialled, dated and signed by a duly authorised representative.
In the absence of such return, the SUPPLIER/SERVICE PROVIDER shall be deemed to have definitively refused the WORK CONTRACT.
The deadlines agreed between the PARTIES are imperative and their respect constitutes for CLESTRA an essential element without which it would not have contracted.
The obligation to meet the contractual deadlines applies to delivery and reception dates but also to intermediate dates as defined in the ORDER or WORK CONTRACT.
The delivery of the PRODUCTS and/or the performance of SERVICES, of the WORK CONTRACT must be completed within the overall time frame set out in the schedule.
The main deadlines for the execution period will be:
- the delivery and/or the start of work,
- the assembly and/or execution on site,
- performance testing and verification,
The schedule is established including bad weather unless otherwise stipulated in the ORDER.
The SUPPLIER/SERVICE PROVIDER must immediately inform CLESTRA in writing of any foreseeable delay in relation to the contractual deadlines, and of the measures taken to remedy it, with the SUPPLIER/SERVICE PROVIDER assuming any additional expenses resulting from said delay.
In the event of non-compliance with the contractual deadlines, CLESTRA reserves the right to apply late penalties to the SUPPLIER/SERVICE PROVIDER in accordance with the article LATE PENALTIES.
CLESTRA reserves the right to refuse any early or partial delivery or execution. Where applicable, CLESTRA reserves the right either (i) to accept the PRODUCT, or (ii) to make the PRODUCT available to the SUPPLIER at the latter's risk, or (iii) to return the PRODUCT to the SUPPLIER at the latter's expense and risk.
8. DELIVERY OF PRODUCTS / ACCEPTANCE OF SERVICES
8.1. DELIVERY OF PRODUCTS
All deliveries must imperatively be accompanied by a delivery slip affixed to the outside of the package, with a copy of said slip inside the package, including the following information:
- Identification number of the delivery slip;
- ORDER number;
- PRODUCT reference;
- Description of the PRODUCT as mentioned in the ORDER;
- Quantity delivered and, if applicable, serial number and individual PRODUCT number;
- Where applicable, number of packages;
- Where applicable, customs and transport documents in accordance with the regulations in force, as well as any other document required for customs clearance operations in connection with imports;
- Handling/storage recommendations.
For all deliveries of hazardous PRODUCTS, the safety data sheet must be provided in accordance with national regulations.
For all deliveries of chemical PRODUCTS, a chemical product certification form must be completed.
In the event of failure by SUPPLIER to comply with any of the foregoing obligations, CLESTRA shall be entitled to cancel the ORDER and to refuse to accept delivery at no extra cost and reserves the right to claim damages. In this case, the price will not be due and the deposits received must be refunded to CLESTRA as soon as possible.
CLESTRA reserves the right to refuse and to return or make available, at the SUPPLIER's expense and risk, any PRODUCT that has not been the subject of an ORDER or modification accepted by CLESTRA.
Unless otherwise specified in the ORDER, the delivery of the PRODUCT shall be DAP variant: “Address of the place of delivery” INCOTERMS® 2020 of ICC unloading provided by the SUPPLIER and/or its carrier.
The PRODUCTS shall be delivered, packaged in suitable conditions and under the responsibility of the SUPPLIER, who shall assume, unless otherwise agreed, the risks of breakage, loss and damage. Any PRODUCT damaged on delivery shall be returned to the SUPPLIER and the transport, repair, assembly and any tests shall be at the SUPPLIER's expense.
If the transport is carried out by road, the SUPPLIER must oblige its carrier to notify the relevant CLESTRA manager by telephone of its arrival. If this obligation is not fulfilled or if the carrier arrives at the place of unloading outside the opening hours, CLESTRA declines all responsibility for the lorry's immobilisation time.
In the event of delivery to the site, CLESTRA shall in no case be held responsible for delays due to the time the vehicles are immobilised for unloading in accordance with the conditions of execution of the ORDER.
In the event of missing items or items damaged during transport, the SUPPLIER undertakes to replace the missing or damaged items in kind as soon as possible.
Under no circumstances will CLESTRA accept monetary compensation.
Delivery means the date of receipt of the PRODUCT at CLESTRA's premises or at any other place indicated by CLESTRA in the ORDER and not the provision or shipment by the SUPPLIER.
The delivery or provision of the documentation as well as the documents required by the applicable regulations and standards is an integral part of the PRODUCT.
8.2. ACCEPTANCE of the WORK within the framework of a WORK CONTRACT
8.2.1 Acceptance of the WORK shall take place upon completion of the WORK CONTRACT relating to the execution of the ORDER in accordance with the provisions of Article 1792-6 of the Civil Code or the SPCs.
The END CUSTOMER may participate, conduct or even validate the acceptance procedure. In this case, the acceptance pronounced by CLESTRA will be acquired by the SUPPLIER subject to that pronounced by the END CUSTOMER.
When the ACCEPTANCE REPORT mentions reservations motivated by omissions or imperfections, it indicates the shortcomings or defects that must be remedied.
The SERVICE SUPPLIER has a fixed period of time, unless otherwise agreed, of a maximum of 10 working days from the ACCEPTANCE REPORT to carry out the corrections and additions requested.
After this period, CLESTRA may, after formal notice has remained unsuccessful for 48 hours, have them executed by a third party at the expense and risk of the defaulting SERVICE PROVIDER.
8.2.2 For WORK CONTRACTS having to meet minimum performance requirements, a period of thirty (30) calendar days shall be respected between the end of the tests and the date of acceptance.
8.2.3 The delivery or provision of the documentation as well as the documents required by the applicable regulations and standards is an integral part of the SERVICE.
9. CONFORMITY OF PRODUCTS/SERVICES/WORK
The PRODUCTS/SERVICES delivered and WORKS carried out on behalf of CLESTRA are subject to its control. As such, upon receipt, the quality and characteristics of PRODUCTS/SERVICES may be subject to checks or tests carried out by CLESTRA in order to verify the conformity of the PRODUCTS/SERVICES/WORK with the ORDER.
9.1. CONFORMITY OF PRODUCTS
In the event of a PRODUCT not conforming to the contractual documents, CLESTRA shall inform the SUPPLIER in order to enable the SUPPLIER to check this non-conformity within ten (10) working days of CLESTRA's notification. If the SUPPLIER does not check or dispute this non-conformity within this time limit, CLESTRA reserves the right, at its discretion:
- To accept the PRODUCT as is, in return for a mutually agreed price reduction;
- To accept it after corrective action at the SUPPLIER's expense, carried out either by the SUPPLIER itself, or by CLESTRA or a third party designated by it;
- To refuse it by making it available to SUPPLIER for removal by the latter at its expense and risk within fifteen (15) calendar days from the date of notification of the non-conformity by CLESTRA;
- To refuse it and return it to SUPPLIER, at the latter's expense and risk, within fifteen (15) calendar days from the date of notification of the non-conformity by CLESTRA.
- To accept it after corrective action at the SERVICE PROVIDER's expense, carried out either by the SERVICE PROVIDER itself, or by CLESTRA or a third party designated by it.
The non-compliant SERVICE refused by CLESTRA will be deemed not to have been performed and will give rise to the application of the penalties set out in the article "LATE PENALTIES" below, without prejudice to CLESTRA's right to claim damages resulting from the injury suffered as a result of the non-compliance and/or to cancel the ORDER.
9.2. CONFORMITY OF SERVICES
In the event of a SERVICE not conforming to the contractual documents, CLESTRA shall inform the SUPPLIER in order to enable it to check this non-conformity within ten (10) working days of CLESTRA's notification. If the SUPPLIER does not check or dispute this non-conformity within this time limit, CLESTRA reserves the right, at its discretion:
- To accept the SERVICE as is, in return for a mutually agreed price reduction;
The non-compliant SERVICE refused by CLESTRA will be deemed not to have been performed and will give rise to the application of the penalties set out in the article "LATE PENALTIES" below, without prejudice to CLESTRA's right to claim damages resulting from the injury suffered as a result of the non-compliance and/or to cancel the ORDER.
9.3. SPECIAL CASE OF WORK CONTRACTS
In the particular case of WORK CONTRACTS, the SUPPLIER/SERVICE PROVIDER is obliged to strictly comply with the WORK CONTRACT. If the SUPPLIER/SERVICE PROVIDER makes changes to the obligations mentioned in the WORK CONTRACT without the authorisation of CLESTRA, CLESTRA may demand the demolition, corrections and replacements necessary for the proper execution of the WORK CONTRACT at the exclusive expense of the SUPPLIER/SERVICE PROVIDER.
It is expressly agreed between the PARTIES that the performance of corrective actions is without prejudice to any damages that CLESTRA may claim in compensation for the injury suffered.
CLESTRA shall not owe any additional payment if the modified works have resulted in the SUPPLIER/SERVICE PROVIDER incurring expenses higher than those relating to the originally planned assignment.
This obligation of conformity constitutes a results-based obligation for the SUPPLIER/SERVICE PROVIDER.
10. LATE PENALTIES
Except in the case of force majeure and unless otherwise expressly stipulated in the ORDER and WORK CONTRACT, failure by the SUPPLIER/SERVICE PROVIDER to comply with the contractual deadlines shall be subject to late penalties as defined below:
- The amount of these penalties is set at a minimum of 0.5% of the amount of the ORDER/WORK CONTRACT excluding VAT, per calendar day of delay on the contractual dates provided for in the ORDER/WORK CONTRACT without any ceiling or limit.
- These late penalties may be deducted from the payment of provisional work statements or from the final settlement.
- The above late penalties are automatically applicable solely because of the delay and without any need for CLESTRA to send prior formal notice to the SUPPLIER/SERVICE PROVIDER.
The payment of late penalties shall be without prejudice to any damages that may be claimed by CLESTRA as compensation for the injury thus suffered.
11. SUSPENSION OF THE ORDER/WORK CONTRACT
CLESTRA may at any time after written notification to the SUPPLIER/SERVICE PROVIDER temporarily interrupt the execution of the ORDER/WORK CONTRACT. The suspension shall take effect on the date it is notified to the SUPPLIER/SERVICE PROVIDER. During the suspension, the obligations relating to confidentiality, insurance, intellectual property and the safeguarding of the PRODUCTS/WORKS are maintained.
12. TERMINATION OF THE ORDER/WORK CONTRACT
12.1. In the event of failure by the SUPPLIER/SERVICE PROVIDER to comply with any of its obligations, which are not remedied within one (1) month following the sending of a formal notice by CLESTRA, or in the event of a serious breach by the SUPPLIER/SERVICE PROVIDER of its contractual obligations, CLESTRA may terminate the ORDER/WORK CONTRACT as of right and without prejudice to any damages it may claim as compensation for the injury suffered.
The following events (non-exhaustive list) constitute a serious breach:
- Subcontracting of the ORDER/WORK CONTRACT without prior agreement from CLESTRA
- Non-conformity of the PRODUCT/SERVICE/WORKS with the technical description
- Exceeding delivery or reception deadlines under abnormal conditions.
Termination will not exempt the SUPPLIER/SERVICE PROVIDER from late penalties incurred at the date of termination.
12.2 In the absence of default by the SUPPLIER/SERVICE PROVIDER, CLESTRA may terminate the ORDER/WORK CONTRACT at any time in whole or in part, subject to payment to the SUPPLIER of the costs incurred by it for its execution on the date of termination and possibly of an indemnity to be agreed upon. Under no circumstances may any down payments made be automatically withheld by the SUPPLIER/SERVICE PROVIDER.
12.3 Termination of the ORDER/WORK CONTRACT does not terminate the obligations that survive by reason of their nature, in particular the warranty, regulatory compliance and obligations relating to intellectual property and confidentiality.
13.1 The prices stated on the ORDER/WORK CONTRACT as defined in ARTICLE 8 are exclusive of VAT (excl. VAT). They are global, lump-sum, firm, final and non-revisable for the duration of the execution of the ORDER/WORK CONTRACT.
The prices stated in the ORDER/WORK CONTRACT include the cost of packaging and any other costs, charges, risks or expenses in connection with the execution of the ORDER/WORK CONTRACT. Under no circumstances may they be modified without CLESTRA's prior formal agreement, either by an amendment to the ORDER/WORK CONTRACT or by a new ORDER/WORK CONTRACT cancelling and replacing the initial document.
Any additional cost, of any nature whatsoever, must be subject to a prior written agreement of CLESTRA, specially indicated on the ORDER/WORK CONTRACT.
13.2 The SUPPLIER/SERVICE PROVIDER, fully aware of the rights granted to it by Article 1195 of the Civil Code, accepts the risk of a change of context and thus waives the rights conferred by said article.
13.3 CLESTRA reserves the right, in the event of imperfect execution of the ORDER/WORK CONTRACT and after formal notice notified as soon as possible to the SUPPLIER/SERVICE PROVIDER to remedy the situation, to reduce the price proportionally in accordance with Article 1223 of the Civil Code.
14. PAYMENT TERMS
14.1 Invoices must be drawn up in triplicate, in Euros excluding VAT, made out to CLESTRA by the SUPPLIER/SERVICE PROVIDER after delivery of the PRODUCTS or completion of the SERVICES.
All the invoices must include the references of the ORDER/WORK CONTRACT and specify separately the taxes invoiced, as well as all the mandatory legal information.
Any particular mention on the invoice or on the back of the invoice shall be deemed to be unwritten.
14.2 Payments will be made in 30 days end of month, on the 15th.
14.3 Subject to acceptance of the PRODUCTS and/or acceptance of the SERVICE/WORKS by CLESTRA and unless otherwise agreed, ORDERS/WORK CONTRACTS do not give rise to any advance payments, down payments or deposits.
14.4 In accordance with the provisions of Article L441-10 of the Commercial Code, any delay in payment shall result in the SUPPLIER/SERVICE PROVIDER paying late penalties equal to 3 times the legal interest rate per day of delay, as well as a recovery indemnity equal to 40 Euros. The payment of said penalties and the indemnity is final.
14.5 In the event of non-performance of the SUPPLIER/SERVICE PROVIDER's obligation, CLESTRA reserves the right to suspend any payment in accordance with the provisions of Articles 1219 et seq. of the Civil Code.
14.6 In the event of a dispute of any kind, CLESTRA reserves the right to suspend payment.
15. TRANSFER OF OWNERSHIP - TRANSFER OF RISKS
The transfer of ownership is made to CLESTRA notwithstanding any retention of title clause inserted in the SUPPLIER/SERVICE PROVIDER's documents:
- on delivery to the CLESTRA site or any other place mentioned on the ORDER for PRODUCTS,
- on signature of the acceptance report if an acceptance of the PRODUCTS/SERVICES/WORKS is provided for in the contractual documents,
In the event of SUBCONTRACTING, the SUPPLIER/SERVICE PROVIDER shall be required to stipulate the same transfer of ownership clause in its favour.
16. ASSIGNMENT / SUBCONTRACTING
16.1 By virtue of the intuitu personae nature of the ORDERS/WORK CONTRACTS, the SUPPLIER shall refrain from assigning all or part of the ORDER without the prior written consent of CLESTRA.
16.2 If the SUPPLIER/SERVICE PROVIDER intends to use SUBCONTRACTING for all or part of the assignments entrusted by CLESTRA in the context of the execution of the ORDER/WORK CONTRACT, it must, prior to any intervention and in accordance with the provisions of law no. 751334 of 31/12/1975 relating to subcontracting:
- Provide any useful document from the SUBCONTRACTOR so that CLESTRA can proceed with the approval of said SUBCONTRACTOR with the END-CUSTOMER (Client),
- Request CLESTRA's agreement on the terms of payment of the subcontract it will have concluded with them,
- Verify and validate, under its responsibility, that the SUBCONTRACTOR proposed to CLESTRA is up to date with its obligations arising from the regulations on undeclared work in its capacity as principal (Article D8222-5 of the Labour Code).
CLESTRA reserves the right to refuse any SUBCONTRACTORS proposed to it.
In case of SUBCONTRACTING accepted by CLESTRA, the SUPPLIER/SERVICE PROVIDER will take all necessary steps to ensure coordination. The SUPPLIER/SERVICE PROVIDER shall be solely responsible for the proper execution of the ORDERS/WORK CONTRACTS thus subcontracted.
The SUPPLIER/SERVICE PROVIDER declares that it is insured for the entire duration of the execution of the ORDER/WORK CONTRACT and after delivery for professional civil liability with a reputable insurance company, for all material or non-material, bodily, direct or indirect damage that may be caused to CLESTRA during the execution of the ORDER/WORK CONTRACT.
SUPPLIERS/SERVICE PROVIDERS involved in WORK CONTRACTS are obliged, both on their own behalf and on behalf of their possible SUBCONTRACTORS, to take out sufficient insurance to cover:
- their staff against the risks provided for by labour legislation as well as those provided for by any regulations or agreements applicable to them,
- their liability towards third parties for any material or non-material damage, bodily injury, occurring during their SERVICE and/or because of their PRODUCTS, whether this occurs during or after the performance of said SERVICE and/or the delivery of said PRODUCTS
These guarantees must be extended to cover damage caused
- to old parts of equipment and installations, on, under or in which WORK CONTRACTS are carried out,
- to the real estate therein, in particular for accident, fire, explosion, water damage or theft.
- their equipment, temporary installations and supplies on the site with waiver of any recourse against CLESTRA and its agents in the event of a claim,
- their liability within the meaning of Articles 1792 et seq. and Article 2270 of the Civil Code for the delivery of PRODUCTS and/or the performance of SERVICES in case of damage to new works but also to old parts of the construction, caused by their actions.
SUBCONTRACTORS are subject to the same insurance conditions as the SUPPLIER/SERVICE PROVIDER.
The SUPPLIER/SERVICE PROVIDER undertakes to pay all insurance premiums and to produce, at CLESTRA's first request, a certificate of insurance within fifteen (15) days of placing the ORDER. Failing this, CLESTRA may, at its discretion, cancel the ORDER or take out an insurance policy at the exclusive expense of the SUPPLIER/SERVICE PROVIDER.
Each of the PARTIES shall be responsible for the performance of the obligations incumbent upon it under the ORDER/WORK CONTRACT.
Neither of the PARTIES shall be liable to the other for indirect or consequential damage, damage or performance defects which are the consequence of the actions of a third party, an event constituting force majeure or the intentional act of the other PARTY.
The SUPPLIER/SERVICE PROVIDER is liable under the conditions of ordinary law for damage of any kind: material and non-material, bodily, direct and indirect damage caused to CLESTRA, its agents, employees, customers or any third party by its and/or the persons for whom it is responsible (in particular its employees, SUBCONTRACTORS or CO-CONTRACTORS), arising in connection with the execution of the ORDER/WORK CONTRACT.
The defence against any complaint, action, amicable, arbitral or judicial proceedings, public or private, of any nature whatsoever brought by any person against CLESTRA in relation to the quality of the PRODUCTS/SERVICES, or due to the rights of third parties relating to the PRODUCTS/SERVICES/WORKS, shall lie exclusively with the SUPPLIER/SERVICE PROVIDER, who shall indemnify or hold CLESTRA harmless from and against any and all claims, actions, amicable, arbitral or judicial proceedings, public or private, and the consequences thereof in respect of losses, costs or damages such as, in general, all costs, fees and expenses incurred by CLESTRA.
Under no circumstances may the SUPPLIER/SERVICE PROVIDER limit compensation for the damage suffered by CLESTRA to the amounts granted by their insurance policies.
19.1 GENERAL PROVISIONS
In the absence of a contractual stipulation providing for a longer period, the SUPPLIER/SERVICE PROVIDER guarantees CLESTRA for a period of two (2) years from receipt of the PRODUCTS/SERVICES against any defect in design, material, manufacture, operation as well as against any abnormal wear and tear, provided that the PRODUCTS/SERVICES are operated in accordance with the requirements of the ORDER/WORK CONTRACT.
Any repair, total or partial replacement is accompanied by a new two (2) year warranty starting from the day the PRODUCT/SERVICE is satisfactorily returned to service.
Under the warranty, the SUPPLIER/SERVICE PROVIDER must carry out all replacements, repairs, modifications and adjustments necessary to meet the requirements of the ORDER/WORK CONTRACT within 10 working days from notification of the damage. The replacement of parts may go as far as the supply of a new set in accordance with the ORDER/WORK CONTRACT. The SUPPLIER/SERVICE PROVIDER is obliged to travel to the site necessary to carry out the work.
If the SUPPLIER/SERVICE PROVIDER does not intervene within the aforementioned period, CLESTRA reserves the right to carry out or have carried out by third parties, on the PRODUCTS/SERVICES that prove to be defective, the necessary repairs and/or replacements at the exclusive expense of the SUPPLIER/SERVICE PROVIDER.
The SUPPLIER/SERVICE PROVIDER may not invoke the repair carried out by a third party to modify the scope of the warranties.
The SUPPLIER/SERVICE PROVIDER shall bear all expenses incurred in connection with these operations, including costs of transport between the workshops and the place of use of the PRODUCTS and the costs of dismantling and reassembly.
The expiry of the guarantee shall not release the SUPPLIER from its obligations under Articles 1641 et seq. of the Civil Code.
Starting points of the warranty period:
DELIVERED PRODUCTS: the starting point of the warranty is fixed in the ORDER and failing this on the date of receipt of the PRODUCT.
PRODUCTS INSTALLED OR COMMISSIONED - MISCELLANEOUS SERVICES: the starting point of the warranty is formalised by the final acceptance.
The warranty is independent of the number of hours of operation of the PRODUCT.
19.2 PROVISIONS SPECIFIC TO WORK CONTRACTS
Acceptance as defined in Article 1792-6 of the Civil Code constitutes the starting point of the legal guarantees, in particular:
- the one-year guarantee of perfect completion of the works,
- the guarantee of proper functioning of equipment not
- incorporated into buildings, for a period of two years.
- the ten-year guarantee for built-in structures and equipment, which covers damage that affects the solidity of the structure or renders the structure unfit for its intended use,
Unless otherwise stipulated in the ORDER/WORK CONTRACT, the SUPPLIER/SERVICE PROVIDER shall have a maximum of 10 working days from notification of the disorders to remedy them. After this period, CLESTRA may have the work carried out by a third party at the exclusive expense of the SUPPLIER/SERVICE PROVIDER.
20. FILE OF COMPLETED WORKS
The SUPPLIER/SERVICE PROVIDER shall provide, at the latest within 30 calendar days of receipt, the following documents, without this list being exhaustive:
- overall and detailed plans that served as the basis for the realisation of the PRODUCT or SERVICE,
- electrical wiring diagrams, automation diagrams, programming listings,
- nomenclature of components with list of SUPPLIERS/SERVICE PROVIDERS,
- list of spare parts to be kept in stock,
- any document necessary for compliance checks.
21. CONFORMITY OF THE PRODUCT/SERVICE/WORK WITH REGULATIONS AND STANDARDS
Within the framework of the execution of the ORDER/WORK CONTRACT, the SUPPLIER/SERVICE PROVIDER guarantees CLESTRA the conformity of the PRODUCT/SERVICE with the regulations and standards applicable in the country for which the PRODUCT/SERVICE is ordered as well as in any other country where the PRODUCT is likely to be used, if the SUPPLIER has been informed.
In this respect, the SUPPLIER/SERVICE PROVIDER shall provide upon delivery or undertakes to provide upon CLESTRA's first request the certificates required by the regulations and relating to the PRODUCT
Regardless of the place of delivery of the PRODUCT or the place of performance of the SERVICE (in France or abroad), the SUPPLIER/SERVICE PROVIDER also guarantees CLESTRA that the PRODUCT/SERVICE will comply with the legislative and regulatory provisions, quality requirements and applicable standards concerning in particular health, hygiene, safety, product traceability and environmental protection.
The SUPPLIER/SERVICE PROVIDER undertakes to communicate to CLESTRA at the time of delivery of the PRODUCT or the performance of the SERVICE the information at its disposal to enable the use of the PRODUCT and/or the use of the elements which are the subject of the SERVICE in complete safety.
The SUPPLIER/SERVICE PROVIDER undertakes to inform CLESTRA of any changes in the applicable legislative and regulatory provisions and standards affecting the terms of delivery of the PRODUCT or performance of the SERVICE.
In the event of export, the SUPPLIER/SERVICE PROVIDER undertakes to provide CLESTRA with a certificate issued by a body approved by the country of destination attesting to the conformity of the PRODUCTS with the standards of said country of destination.
22. COMPLIANCE WITH LABOUR LAW REGULATIONS
The SUPPLIER'S/SERVICE PROVIDER's personnel shall in all circumstances remain under their exclusive subordination since they alone have the power to manage and control their employees. The SUPPLIER/SERVICE PROVIDER therefore ensures, in its capacity as employer, the administrative, accounting and social management of its employees involved in the execution of the ORDER/WORK CONTRACT and undertakes to ensure that these obligations are respected in the event that it subcontracts.
The SUPPLIER/SERVICE PROVIDER ensures for its staff their affiliation with all social security bodies and assumes full responsibility vis-à-vis labour legislation. In this respect, the SUPPLIER/SERVICE PROVIDER certifies that it has made the declarations required by the social protection bodies and that it has not used undeclared labour as defined in Articles L.8221-3 and 5 of the Labour Code.
In the event that the SUPPLIER/SERVICE PROVIDER uses a SUBCONTRACTOR, it undertakes to ensure that the latter strictly complies with the above-mentioned legal provisions. In addition, it undertakes to honour its duty of vigilance with regard to the obligations arising from labour regulations in its capacity as principal pursuant to Articles L8281-1, R8281-1, R8281-2 and R8281-3 of the Labour Code.
In accordance with the legal provisions on the prevention and repression of undeclared work, the SUPPLIER/SERVICE PROVIDER undertakes to submit to CLESTRA before any ORDER/WORK CONTRACT is placed and every six (6) months until the end of the execution thereof if its duration exceeds six (6) months, when the ORDER is greater than 5,000 Euros excluding VAT or when the total amount of orders placed exceeds 5,000 Euros excluding VAT:
- A certificate of social declarations and payment of
payment of social security contributions from the social security organisation responsible for the collection of social security contributions (URSSAF), less than 6 months old;
- An excerpt of the registration in the Trade and Companies Register (K-Bis), less than three (3) months old;
- A nominative list of foreign employees employed and subject to the work permit provided for in Article L 5221-2 of the Labour Code, specifying for each employee:
- hiring date
- type and number of the document constituting a work permit.
In addition, the SUPPLIER/SERVICE PROVIDER undertakes not to carry out any discrimination, distinction, exclusion or preference based on gender, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. It also undertakes not to employ persons below the minimum age and not to use forced labour or any form of slavery under the conventions of the International Labour Organization (ILO).
Any breach of the obligations set out above shall result in the immediate termination of commercial relations between the SUPPLIER/SERVICE PROVIDER and CLESTRA. The SUPPLIER/SERVICE PROVIDER shall hold CLESTRA harmless against the financial consequences of any action or claim from third parties, and in particular from administrations, due to the failure to comply with the above-mentioned obligations.
23 - INTELLECTUAL PROPERTY
CLESTRA has a right of free and unrestricted use of all intellectual property rights relating to the PRODUCTS/SERVICES/WORKS of the SUPPLIER/SERVICE PROVIDER.
The SUPPLIER/SERVICE PROVIDER declares that it is the legitimate holder of all the intellectual property rights that it uses in the context of the ORDER/WORK CONTRACT and undertakes, where applicable, to obtain all the rights and authorisations necessary for the sale of the PRODUCTS/WORKS and their use by CLESTRA.
The SUPPLIER/SERVICE PROVIDER guarantees CLESTRA that the PRODUCTS/SERVICES/WORKS do not infringe the intellectual property rights or any other right belonging to a third party. The SUPPLIER/SERVICE PROVIDER shall hold CLESTRA harmless against any action by third parties for violation of an intellectual property right, infringement and/or unfair and/or parasitic competition relating to the PRODUCTS/SERVICES and shall indemnify CLESTRA for all sentences and costs resulting from such action.
If, as a result of such action, CLESTRA is prevented from using the PRODUCTS/WORKS or from carrying out the SERVICES, CLESTRA may, without prejudice to its right to claim any damages from the SUPPLIER/SERVICE PROVIDER, claim a right to continue to use the PRODUCTS or to carry out the SERVICE at the SUPPLIER/SERVICE PROVIDER's expense. Failing this, the SUPPLIER/SERVICE PROVIDER must modify or replace them, at its own risk and expense, while maintaining the same level of functionality, performance and suitability. Otherwise, it shall pay CLESTRA the sums paid for the PRODUCTS/SERVICES concerned.
In the event of failure to meet results-based obligations, upon completion of the execution of the ORDER/WORK CONTRACT and after expiry of the warranties, the SUPPLIER/SERVICE PROVIDER grants CLESTRA free use of the industrial property rights for maintenance and/or replacement, repair, modification and development of the PRODUCTS/SERVICES/WORKS.
Any ORDER/WORK CONTRACT placed, any technical or commercial information and/or any document of any nature which will be communicated to the SUPPLIER/SERVICE PROVIDER in the context of the execution of the ORDER/WORK CONTRACT or to which the latter may have access in any way whatsoever, remain the exclusive property of CLESTRA, shall be considered strictly confidential and shall under no circumstances be used by it for any purpose other than the execution of the ORDER/WORK CONTRACT. This also applies to items delivered directly to the END CUSTOMER for which the SUPPLIER/SERVICE PROVIDER may be responsible.
This obligation must be respected during the entire period of execution of the ORDER as well as for a period of five (5) years following the end of execution of the ORDER.
The SUPPLIER/SERVICE PROVIDER also guarantees compliance with this obligation by all members of its staff or any other party, in particular SUBCONTRACTORS, for whom it is responsible and who will have access to this information or documents.
The SUPPLIER/SERVICE PROVIDER undertakes to take all necessary steps to ensure that said commitments are respected by these persons.
This obligation of confidentiality does not apply to information:
- for which the SUPPLIER/SERVICE PROVIDER can prove that it was in its possession at the time it was communicated to it,
- which, at the time of its communication to the SUPPLIER/SERVICE PROVIDER, was in the public domain or which, subsequent to its communication to the SUPPLIER/SERVICE PROVIDER, fell into the public domain without any fault on the part of the SUPPLIER/SERVICE PROVIDER.
In addition to these provisions, the SUPPLIER/SERVICE PROVIDER, upon receipt or delivery of the PRODUCTS/SERVICES, undertakes not to seek any information on the equipment exposed to its view which is not manufactured by it.
As soon as the ORDER/WORK CONTRACT has been completed in full, the SUPPLIER/SERVICE PROVIDER must immediately return all the technical documentation entrusted to it for the execution of the ORDER/WORK CONTRACT.
This last provision is also applicable in the event of termination of the ORDER for any reason whatsoever.
25. PERSONAL DATA
Each PARTY acknowledges that personal data and the processing thereof are subject to the legal and regulatory provisions for the protection of personal data applicable to CLESTRA or to the SUPPLIER/SERVICE PROVIDER, as the case may be, the GDPR as well as any local regulations issued in application of said regulations which each of them undertakes to respect.
Each PARTY may be required to collect and process personal data from the other PARTY for the purposes of executing the ORDER and WORK CONTRACT and/or for the purposes of managing files of suppliers, customers and prospects involving natural persons. In this case, the PARTY concerned is the data controller for such personal data within the meaning of the GDPR and undertakes to comply with its provisions.
The SUPPLIER/SERVICE PROVIDER may collect and/or process personal data on behalf of CLESTRA, thus acting as a data processor, within the meaning of the GDPR. As such, it undertakes to comply with the GDPR, as well as the provisions set out in the SPCs.
Any failure on the part of the SUPPLIER/SERVICE PROVIDER to comply with its obligations relating to the processing of personal data constitutes a breach of its essential obligations, which may in particular lead to the partial or total termination of the ORDER for misconduct in accordance with the provisions of the article "TERMINATION", without prejudice to any other recourse for CLESTRA. The SUPPLIER/SERVICE PROVIDER will hold CLESTRA harmless against any and all claims, costs, damages, fines, losses, liabilities and expenses (including lawyers' fees and expenses) suffered by it and caused by the SUPPLIER/SERVICE PROVIDER, directly or indirectly, as a result of a breach of the GDPR.
The SUPPLIER/SERVICE PROVIDER shall refrain from competing directly or indirectly with CLESTRA, except with CLESTRA's prior written consent. Any violation of this prohibition would expose the SUPPLIER/SERVICE PROVIDER to the termination of the ORDER, without prejudice to any action for compensation.
27. ECONOMIC DEPENDENCE
The SUPPLIER/SERVICE PROVIDER is required to immediately inform CLESTRA of any risk of economic dependence. This duty of disclosure is essential to enable the Parties to maintain a balanced relationship.
28. FORCE MAJEURE
Neither PARTY may be held liable to the other in the event of non-performance of its obligations under the ORDER resulting from a force majeure event, as defined by case law.
A case of force majeure, in accordance with the provisions of Article 1218 of the Civil Code, is an event beyond the control of the PARTY concerned, which cannot be reasonably foreseen at the time of conclusion of the CONTRACT and whose effects cannot be avoided by appropriate measures, which prevents the performance of its obligation by the PARTY concerned.
The force majeure event will suspend the respective obligations of the parties to the exclusion of the obligations stipulated in the article "CONFIDENTIALITY".
To be taken into consideration, the case of force majeure must be brought to the attention of the other party by any means within 48 hours of the start of the event characterising it.
If said event lasts more than one (1) month, CLESTRA may terminate its ORDER as of right, by written notification to the other party and without any compensation being requested. CLESTRA shall pay the SUPPLIER/SERVICE PROVIDER the sums due to it for the part of the ORDER that has been executed on the date of interruption, without either of the PARTIES being able to claim any compensation for the part of the PRODUCTS not delivered or the SERVICES not performed.
29- ENVIRONMENTAL REQUIREMENTS
29.1. ENVIRONMENTAL MANAGEMENT SYSTEM (EMS)
CLESTRA requires SUPPLIERS/SERVICE PROVIDERS to meet the following minimum EMS requirements:
- The SUPPLIER/SERVICE PROVIDER must be aware of and comply with environmental legislation and the authorisations required by it.
- The SUPPLIER/SERVICE PROVIDER must ensure that its employees have adequate and formalised skills in environmental matters.
ISO 14001 environmental certification or its equivalent is welcomed.
The SUPPLIER/SERVICE PROVIDER must be able to present a design and logistical approach to reduce the negative environmental impact of its PRODUCTS/SERVICES, taking into account factors such as energy consumption, the use of a type of material, etc.
The SUPPLIER/SERVICE PROVIDER must propose a mutually beneficial development of its PRODUCTS/SERVICES and their packaging and transport conditions.
If one or more of the clauses of the GTCPs are declared null and void under applicable law, the other provisions shall remain unaffected.
The PARTIES undertake to consult each other to remedy the cause of nullity established so that, unless this is impossible, these GTCPs continue to have effect.
The SUPPLIER/SERVICE PROVIDER undertakes to actively combat corruption and all forms of fraud, whether social or economic, and in particular to:
- promote the fight against all forms of illegal work, including undeclared work;
- ensure that the relations between the SUPPLIER/SERVICE PROVIDER and its customers or third parties do not give rise to behaviour or facts that may be qualified in particular as active or passive corruption, or as complicity in influence peddling or favouritism;
- not to grant directly or indirectly to its customers or employees undue advantages, of any kind whatsoever and by any means whatsoever, in order to obtain or maintain a commercial transaction or preferential treatment.
If, in the course of their relations, the SUPPLIER/SERVICE PROVIDER notices that an employee of CLESTRA fails to comply with the principles of this article, then the SUPPLIER/SERVICE PROVIDER will inform CLESTRA.
If the SUPPLIER/SERVICE PROVIDER encounters difficulties in enforcing compliance with the provisions of this article with CLESTRA's employees, the SUPPLIER/SERVICE PROVIDER will inform CLESTRA as soon as possible.
The SUPPLIER/SERVICE PROVIDER agrees that, in the event that it is a creditor of CLESTRA, their claims shall automatically be set off against each other without it being necessary for CLESTRA to avail itself of this right.
33- SPECIFIC CLAUSES RELATING TO WORK SERVICES
33.1 MODIFICATIONS AND ORGANISATION
The SUPPLIER/SERVICE PROVIDER accepts increases and decreases in the volume of work and changes in the consistency of the various achievements which may be prescribed by the END CUSTOMER (CLIENT).
It undertakes to carry out any additional or modifying work that may be ordered accordingly. The SUPPLIER/SERVICE PROVIDER is solely responsible for placing orders for materials and PRODUCTS necessary for the execution of the ORDER and shall be directly responsible for their payment.
The SUPPLIER/SERVICE PROVIDER shall refrain from any direct contact with the END CUSTOMER unless invited to do so by CLESTRA.
CLESTRA shall not owe any additional payment if the modified works have resulted in the SUPPLIER/SERVICE PROVIDER incurring expenses higher than those provided for in the initial assignment.
The SUPPLIER/SERVICE PROVIDER must promptly request any service orders and written or figurative instructions which may be missing. Under no circumstances may it invoke the absence of orders or information to justify delays, or an execution not in accordance with CLESTRA's wishes, unless it can justify that it requested them in good time.
33.2 ORGANISATION OF THE SITE
If the execution of the ORDER so requires, the SUPPLIER/SERVICE PROVIDER must go to the site meetings on the days and times fixed by CLESTRA, including during holiday periods, paid holidays, etc. Site meetings are directed by CLESTRA or its qualified representative in accordance with the matter in question. Absence at these meetings will be sanctioned by penalties according to the specific terms of the ORDER or at least fixed at a global and lump sum of 300 Euros per absence noted.
The SUPPLIER/SERVICE PROVIDER must attend each site meeting or be represented by a qualified technician authorised to take any decision that may bind his company. Unless otherwise convened, this obligation extends for each SUPPLIER/SERVICE PROVIDER during the period beginning fifteen (15) days before the start of its work on the site and ending fifteen days after the end of its work.
CLESTRA is entitled to demand the change or dismissal of the SUPPLIER/SERVICE PROVIDER's representative for insubordination, incapacity or lack of integrity.
Each SUPPLIER/SERVICE PROVIDER must have permanently on the site, as soon as the work for which it is responsible begins, a SITE MANAGER or a qualified person in charge, authorised to receive the instructions of the PROJECT MANAGER or CLESTRA and to monitor their proper execution
This SITE MANAGER will have all the powers to represent his employer, both with the PROJECT MANAGER and CLESTRA and other contractors for all problems discussed before him and concerning the execution of the work of his trade.
The programme for carrying out the WORK CONTRACT is laid down in the SPCs. Throughout the duration of the work, the SUPPLIER/SERVICE PROVIDER must provide CLESTRA on request with any information enabling CLESTRA to assess progress, in the form of a work programme, schedule, progress report, report following visits by its own agents or SUBCONTRACTORS to the premises which are the subject of the work.
The ORDER sets the progress criteria, in particular those associated with payment terms. It is up to the SUPPLIER/SERVICE PROVIDER to prove that these criteria are met.
The presence of CLESTRA representatives in the workplace, verification and eventual approval, as well as inspection observations related to the studies, plans, materials and techniques of the SUPPLIER/SERVICE PROVIDER does not relieve it of its responsibilities.
33.4 FAILURE OF THE SUPPLIER/SERVICE PROVIDER
If CLESTRA notes obvious shortcomings or shortcomings of such a nature as to affect the quality and conformity of the performance of the WORK CONTRACT or notes a delay in the execution of the ORDER leading to the inevitable postponement of the contractual deadlines, the SUPPLIER/SERVICE PROVIDER, at CLESTRA's request, must modify and/or reinforce its team and the means allocated to the ORDER to remedy the shortcoming noted.
In the event that this request remains without effect, even after formal notice, CLESTRA may at its discretion:
- Impose on the SUPPLIER/SERVICE PROVIDER technical assistance for which it will be invoiced, without the SUPPLIER/SERVICE PROVIDER being able to avail itself of this assistance to relieve itself of any of its obligations or responsibilities.
- Execute all or part of the WORK CONTRACT by itself or by a third party at the expense of the SUPPLIER/SERVICE PROVIDER.
33.5 CLEANING, COMPLETION OF SERVICES
The cleaning of the sites covered by WORKS CONTRACTS, the restoration of the premises and the evacuation of all that belongs to the SUPPLIER/SERVICE PROVIDER as well as waste and residues constitute the final operation of an ORDER. The SUPPLIER/SERVICE PROVIDER undertakes to carry it out, without exception or reservation.
34. APPLICABLE LAW - DISPUTE SETTLEMENT
The execution of the ORDER is governed exclusively by French law, regardless of the identity or nationality of the SUPPLIER/SERVICE PROVIDER.
Any dispute arising between CLESTRA and the SUPPLIER/SERVICE PROVIDER in connection with the existence, validity, interpretation, or execution of an ORDER and/or these GTCPs supplemented by SPCs shall be subject to the exclusive jurisdiction of the competent courts of STRASBOURG regardless of the place of execution and/or delivery of the ORDER.
Application of the 1980 Vienna Convention on the International Sale of Goods is excluded.