General Terms and Conditions of Sale – EDF Store & Forecast
EDF Store and Forecast is a simplified joint stock company (“SAS”) incorporated under the Laws of France with a share capital of 3.300.000 euros and having its registered office located at Cœur Défense Tour B – 100 esplanade du General de Gaulle 92932 Courbevoie. EDF Store and Forecast is registered under the number 801 185 679 with the Trade and Companies Register of Nanterre.
EDF Store & Forecast develops and markets smart renewable energy solutions to optimize local electrical systems using forecasts and energy storage.
ARTICLE 1 – PURPOSE AND SCOPE OF APPLICATION
These General Terms and Conditions of Sale (the « GTC ») define the provisions that govern the performance of Works by EDF Store and Forecast (hereinafter referred to as the « Supplier » or « EDF S&F ») the to the benefit of the client (hereinafter referred to as the « Buyer »).
Except as otherwise accepted in writing by EDF S&F, within the meaning of Article L. 441-1 of the French Commercial Code, these GTC shall constitute the basis for the commercial negotiations and are systematically referred to, sent, or handed over to the Buyer with EDF S&F’s proposals. The Buyer declares to have read the GTC which shall prevail over all other documents of the Buyer, and in particular over its conditions of purchase. Any terms and conditions, which are conflicting with these GTC, claimed by the Buyer against the Supplier shall, in the absence of explicit written acceptance, be unenforceable against the Supplier.
If, at a given time, the Supplier does not exercise a right given by any of the provisions of the GTC, this shall not be interpreted by the Buyer as a waiver by the Supplier of its right to exercise such right at any later time.
Except as otherwise provided or accepted in writing by EDF S&F, the validity period of EDF S&F’s proposals is limited to 30 (thirty) days after their issuance.
ARTICLE 2 – DEFINITIONS
Except where the context otherwise requires, references to one gender include all genders and references to the singular include the plural and vice versa.
“Acceptance” means the activities by which the Buyer acknowledges that the Supplier has performed the Works under the Contract, and materialized by the signature of the acceptance certificate as further defined by the Parties under the Contract.
“BESS” means Battery Energy Storage System.
“Buyer” means any legal entity entering into a Contract with EDF S&F for the supply of Works by EDF S&F.
“Confidential Information“ means any and all information and data, disclosed directly or indirectly by the Supplier to the Buyer, in whatever form (particularly orally, electronically or in written form), or to which the Buyer may have access to during the frame of the Contract, including but not limited to: the terms and conditions of the Contract, any oral, written, graphic or machine-readable information including, but not limited to, that which relates to patents, patent applications, research, product plans, products, developments, inventions, processes, designs, drawings, know-how, markets, software, hardware configuration, computer programs, algorithms, business or marketing plans, business proposals, costs, prices, purchase or sales volume, agreements with third parties, actual or potential customers and suppliers. However, the Confidential Information does not include information which the receiving Party can prove (i) was known to the public and generally in the public domain before being disclosed by the issuing Party or becomes known by the public without breach of its confidentiality obligation by the receiving Party, (ii) was already in the possession of the receiving Party at the time of its communication by the issuing Party without infringement of the Contract, (iii) was obtained from a third party by the receiving Party without infringement of the confidentiality obligation of such third party, (iv) was developed independently by the receiving Party without use or reference to the Confidential Information communicated by the issuing Party.
“Contract” means the contractual documents of any kind, whether technical and/or administrative, general or specific, related to the performance of the Works, on the basis of EDF S&F’s proposal. The Contract concluded between the Supplier and the Buyer can also be named by another term such as « Order » or « Purchase Order ». The Contract is formed of the following documents listed by decreasing order of priority:
(i) The specific provisions of the Contract and its appendices, including definition of the scope of Works and Technical Specifications, price and payment terms, place and date of delivery or performance of the Works, and any other specific conditions related to the Works performance.
Please note that these specific conditions can be the Supplier’s proposal if the Buyer signs without reservation the Supplier’s proposal.
(ii) These GTC
(iii) The Supplier’s proposal
“Day” or “day” means a calendar day.
“Documentation” means any documents and their contents transmitted by the Supplier to the Buyer during the frame of the performance of the Contract.
“EMS” means the containerized software (including the industrial computer) as well as the associated Documentation, provided by the Supplier.
“Force Majeure” means any event which is unforeseeable and beyond the reasonable control of the Supplier, such as but not limited to: blockage, insurrection, incursion, revolution or act of public enemies or the imminent threat of any of them, riot or civil commotion, sabotage, epidemics, pandemics (including COVID-19 and its variants), act of God, flood, storm, fire or explosion, seismic activity or drought, freight embargo, import or export embargo or restrictions, act or failure to act) of governmental or administrative authorities, refusal, revocation or suspension of export or import licenses.
“Goods” means the equipments constituting the BESS, EMS or PMS hardware or any other product to be delivered by the Supplier as specified in EDF S&F’s proposal or under the Contract.
“Party” or “Parties” shall mean EDF S&F and/or the Buyer individually or collectively.
“PMS” means the power management system, included in the BESS.
“Study” means any study or intellectual service to be performed by the Supplier for the Buyer as specified in EDF S&F’s proposal or under the Contract.
“Services” means any services such as but not limited to supervision, technical assistance, installation and commissioning of Goods, to be performed by the Supplier, as specified in EDF S&F’s proposal or under the Contract.
“Site” means the geographic location where the Goods are finally to be operated by the Buyer or by the Buyer’s end customer or the place of performance of the Services.
“Technical Specifications” means the specifications of Goods and/or Services as defined in the Supplier’s proposal or as agreed upon between the Parties under the Contract.
“Works” means the Study and/or Goods and/or Services to be supplied by the Supplier as specified in EDF S&F’s proposal or under the Contract.
ARTICLE 3 – CONTRACT CONCLUSION
The Contract shall come into force at the date of its signature by both Parties.
If the Contract is called “Order”, the latter shall come into force when an Order is accepted by the Supplier, ie. by the Supplier sending a written acknowledgment of receipt of the Order to the Buyer within a time period of 15 (fifteen) days as from the Order receipt. Once this time period has elapsed and the Supplier has not sent back the acknowledgement of receipt, the Order is deemed to have been refused. However, in the specific case whether the Supplier makes some reservations in its acknowledgement of receipt, the Order comes into force only when the Buyer accepts in writing the reservations of the Supplier or if both Parties agree upon the treatment of such reservations. The Parties agree that in the case where the reservations remain without response from the Buyer within a delay of 15 (fifteen) days as from the sending by the Supplier of its acknowledgement of receipt with reservations, any starting of performance of the Order implies acceptation of the Supplier’s reservations by the Buyer and the Order is deemed to be concluded and into force.
ARTICLE 4 – PRICE & TAXES
The price for the Works is exclusive of any and all turnover and value added and similar taxes and fees which arise from the conclusion of the Contract or the performance of the associated Works. If this Agreement is subject to value added tax (“VAT”) or any other similar tax, the Supplier shall be entitled to invoice the VAT or any similar tax to the Buyer. This tax shall be paid by the Buyer in addition to the indicated prices. The repayment of the VAT or any other similar applicable tax to the appropriate (tax) authorities is borne by the Supplier. The Supplier shall issue an invoice with the provision allowing the Buyer to benefit from any applicable “upstream” tax deduction.
The Buyer indemnifies and holds harmless EDF S&F from all those taxes and fees, which EDF S&F would have to pay.
In addition, the Buyer shall also reimburse EDF S&F for travel expenses (transportation, lodging and meal expenses) reasonably incurred by EDF S&F in performing the Works.
ARTICLE 5 – INVOICING & PAYMENT
Invoices for the Works shall be sent by EDF S&F in accordance with the terms of payment specified in the Contract. Any invoices issued by the Supplier shall be due and payable within thirty (30) days after the date of invoice issuance. Except as otherwise agreed upon between the Parties, payments shall be made by electronic bank transfer on EDF S&F bank account mentioned in the Contract.
Payments shall be deemed to have occurred when the amount is fully and irrevocably credited on the aforementioned bank account.
The Buyer shall pay interest on the amount of each delayed payment, at a rate of 8 % (eight per cent) per annum pro rata above the annual base borrowing rate of the European Central Bank of the outstanding amount for every day of delay, without prejudice to the Supplier’s other rights and remedies under the CONTRACT or at law.
The Buyer shall not be entitled to deduct, set-off any amounts or withhold any sums due under the CONTRACT without the prior written approval of the Supplier.
ARTICLE 6 – TIME FOR PERFORMANCE
The Supplier shall do its reasonable efforts to perform or deliver the Works in accordance with the time schedule, if any, mentioned in the Contract. The Buyer hereby waives any and all rights to claim any compensation for damages resulting from delayed performance by the Supplier. Delayed performance by the Supplier shall not constitute a breach entitling the Buyer to terminate the Contract.
The time for performance of the Works shall be automatically postponed or extended if an event of Force Majeure occurs, or if the Buyer has not performed its own obligations in due time (such as, but not limited to, supply in due time of documents, data, obtention of permits and any prerequisites necessary for the performance of its obligations by the Supplier under the Contract), or more generally in case the delayed performance of the Works is not attributable in whole or in part to the Supplier (or its sub-suppliers).
If the Parties agree, liquidated damages for delay may be defined in the Contract. In such case, these liquidated damages shall not exceed a maximum amount equal to 5% (five percent) of the amount (without taxes) of the delayed part of Works. Such liquidated damages shall constitute the Supplier’s sole compensation and indemnification due to the Buyer and shall be paid in full and final satisfaction of all claims of the Buyer arising from delayed performance.
ARTICLE 7 – CHANGES
Any changes or modifications to the provisions of the Contract shall be subject to the prior written approval of the Parties and set forth in a written agreement duly signed by authorized representatives of the Parties. In no case shall the Supplier have the obligation to implement changes or modifications to the Contract without the Supplier’s prior written agreement.
In the event of a change in laws and/or regulations applicable to the Contract, including but not limited to codes, standards and/ or safety regulations applicable to the performance of the Works, which affects in whole or in part the performance of the Supplier’s obligations, the Supplier shall be entitled to an equitable adjustment of the contractual provisions affected, especially but not limited to the Works’ price and time for performance.
ARTICLE 8 – UNFORESEEABILITY
In the event of a change in circumstances which was unforeseeable at the time of conclusion of the Contract, in accordance with the provisions of Article 1195 of the French Civil Code, the Supplier shall not accept the risk of more onerous performance and shall be entitled to request renegotiation of the Contract from the Buyer, including the modalities according to which the Buyer shall cover the costs suffered by the Supplier. Failing such renegotiation after a 60 (sixty) days’ period after sending of a written notice asking for such renegotiation, the Supplier is entitled to unilaterally terminate the contract without any further legal formality thirty (30) days after receipt of a formal notice sent by registered letter with returned receipt in accordance with the provisions of article TERMINATION hereof.
ARTICLE 9 – FORCE MAJEURE
The Supplier shall not be liable for any breach, delayed or non-performance of its obligations if the latter is due to the occurrence of a Force Majeure event.
If the Force Majeure event, in whole or in part prevents or delays the Parties’ performance of their obligations under this Contract, the affected Party shall take all steps to mitigate the consequences thereof and shall give to the other Party prompt written notice, giving appropriate details about the Force Majeure event, its potential consequences and the steps to be taken.
The performance of the obligations affected by the Force Majeure event shall be suspended from the date of the written notice thereof, for the duration of the Force Majeure event and the time for performance shall be extended by a time period at least equivalent to the duration of the Force Majeure event, and its consequences, as well as the duration needed to remobilize the affected Party’s resources needed for the performance of the affected obligations of the Contract. In the event that the aggregate number of days of delay exceeds sixty (60), the Supplier has the right to renegotiate the terms of the Contract with the Buyer, failing which, after a further 30 (thirty) days’ period after sending of a written notice asking for such renegotiation, the Supplier shall have the right to terminate the Contract in accordance with the provisions of article TERMINATION hereof. In such case, the Supplier shall be paid 1) the full price of any Work performed and/or in progress as of the date of termination; 2) for any other direct loss or costs incurred or irrevocably committed as of the date of termination; and 3) in the case of fixed price or lump sum Work, a portion of the expected profit on the terminated part of the Work not yet performed.
ARTICLE 10 – OWNERSHIP AND RISK OF LOSS OF GOODS
UNLESS OTHERWISE SPECIFIED IN THE CONTRACT, RISK OF LOSS OR DAMAGE TO THE GOODS FURNISHED UNDER THIS CONTRACT SHALL PASS TO BUYER, UPON DELIVERY AT THE DATE AND PLACE SPECIFIED IN THE CONTRACT. From the date that risk of loss of or damage to the Goods passes to the Buyer as aforementioned, the Buyer shall, by insurance or otherwise, assume the complete risk of loss of or damage to the Goods no matter how caused and shall hold the Supplier harmless from any such liability.
ARTICLE 11 – WARRANTY
11.1 Warranty of workmanship and material for Goods:
Except as otherwise provided in the Contract, the Goods related to the BESS shall be free from defects in material and workmanship, for a period of 2 (two) years from their delivery date or their Acceptance as specified in the Contract.
Except as otherwise provided in the Contract, for Goods such as EMS, PMS or SCADA, the warranty period is 1 (one) year from their delivery date or their Acceptance as specified in the Contract.
Any Goods delivered to the Buyer which fail to conform to this warranty will be at the Supplier’s option, either repaired or replaced, at its own expense (except labor costs). Any repaired or repaired Goods shall not extend the warranty period.
11.2 Warranty with respect to Services or Studies
The Supplier warrants that the Services or Studies performed by the Supplier shall be performed with the standards of care and practice typical within the industry at the time of performance of similar services, and in accordance with the norms and standards applicable to the Contract.
Except as otherwise provided in the Contract, the Supplier warrants the Services during 6 (six) months after the performance of such Services or their Acceptance as specified in the Contract.
Except as otherwise provided in the Contract, the Supplier warrants the Studies during 6 (six) months from their delivery date or their Acceptance as specified in the Contract.
Any such Services or Studies performed by the Supplier which do not conform with the above stated warranty obligation will be corrected or reperformed by the Supplier at its own expense; or if reperformance or correction is impracticable or impossible, the Supplier may refund to the Buyer the price paid to the Supplier for the non-conforming Services.
Any corrected of reperformed Services or Studies shall not extend the warranty period.
11.3 Warranty claims
In order to benefit from the aforementioned warranties, the Buyer must (i) notify promptly the Supplier (and in no event later than 5 (five) days from the date the failure is detected by Buyer) of any defective or non-conforming Goods, Services or Studies during the applicable defect warranty period as defined above by emailing Supplier’s customer service support: firstname.lastname@example.org and getting confirmation of receipt of warranty claim and (ii) at Supplier’s option, either provide documentation proving the defects, or allow Supplier or its designee to inspect the Goods or Services to confirm the defect, at the Buyer’s expenses, if any.
The Buyer shall, at no expense to the Supplier, provide site personnel, facilities, data and information to assist in any activity which may be required of the Supplier under this warranty.
11.4 Warranty exclusions
The warranties and remedies set forth above will apply only if notice of claim is given to the Supplier in accordance with the requirements specified above which shall be complied with, and provided the non-conformity, or defect is not caused by events outside of Supplier’s scope or responsibility such as but not limited to:
- Any Goods not properly stored between delivery date and installation/commissioning
- Improper handling, installation, repair or replacement of Goods by persons other than Supplier or Supplier’s Authorized Agents
- Use and application of any Goods outside of the guidance included in the Documentation provided by the Supplier
- Neglect, abuse, misuse, improper maintenance or lack of maintenance, as set forth in the Documentation
- Repairing, adjustment or alteration of the Goods, not authorized by the Supplier
- Force Majeure events
- Voltage surge coming from grid AC side of the Goods
- Normal wear and tear of the Goods
The warranty shall not be effective if the Goods are moved from the Site.
“Supplier’s Authorized Agents” means any person or company authorized in writing by the Supplier to operate certain acts on the Goods.
11.5 No implied warranties
THE WARRANTIES AND REMEDIES SET FORTH HEREINABOVE ARE EXCLUSIVE, AND NO OTHER WARRANTY OR REMEDY OF ANY KIND, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS, OR IMPLIED, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SHALL APPLY.
ARTICLE 12 – LIMITATION OF LIABILITY
Neither the Supplier nor its sub-suppliers shall be liable, whether arising under Contract, tort (including negligence), strict liability, or otherwise, for a) any special, indirect, incidental, or consequential loss or damage of any nature arising at any time from any cause whatsoever such as but not limited to loss of production, loss of use, loss of profit, loss of information or data, unavailability, stoppage of energy production or distribution, cost of replacement energy, loss of opportunity b) punitive damages c) claims of the Buyer based on claims from third parties such as Buyer’s end-customer or other suppliers.
The Supplier shall not, in any event, be responsible for any work done by others or for any loss, damage, cost, or expense arising out of or resulting from such work; provided, that in the event the Supplier has engaged sub-suppliers in the performance of its obligations, the Supplier will have the same responsibilities to the Buyer for such Works as it has with respect to its own Work.
The Supplier shall only be liable for damage in case of proven fault or breach of its obligations under the Contract. The above liability limitations and exclusions shall apply also to the benefit of the Supplier and its sub-suppliers, including their respective insurers.
The liability of the Supplier for any claims, whether based upon contract, tort (including negligence), strict liability or otherwise, for any loss or damage arising out of, connected with, or resulting from the performance or breach of the Contract shall be limited to specifically identified written claims submitted by the Buyer prior to the expiration of one (1) year after the existence of such claim was, or should with due diligence have been, discovered by Buyer.
The total and cumulative liability of the Supplier and its sub-suppliers, whether in contract, tort (including negligence), strict liability, or otherwise, shall not exceed, 50% (fifty percent) of the price paid under the Contract for the Works. The Buyer waives all right of recourse against the Supplier, its sub-suppliers and their respective insurers above the aforementioned limitations and exclusions of liability.
The provisions of this Article shall apply notwithstanding any other provision of the Contract and to the largest legally permitted extent.
ARTICLE 13 – SUSPENSION
The Supplier is entitled to suspend as of right its performance of the Contract by, after giving the Buyer a fourteen (14) days’ notice in writing, without incurring any liability, in case of breach of the Buyer of its obligations, such as but not limited to its payment obligations. In case of suspension by the Supplier for breach of its obligations by the Buyer, any additional cost and/or losses incurred by the Supplier by reason of such suspension shall be added to the Contract price and the time schedule for performance of the Works shall be amended to the extent necessary to overcome the consequences of such suspension and at least for the duration of the suspension period. The Supplier shall also be entitled to payment by the Buyer, within thirty (30) days following the effective date of suspension, of all Works performed until such effective date of suspension as well as to the reimbursement of already identified costs and expenses resulting from the suspension. If the suspension period shall last for more than forty-five (45) days following the effective date of suspension, the Supplier is entitled to terminate the Contract, in accordance with the Article TERMINATION below.
ARTICLE 14 – EXCLUSION OF FORCED PERFORMANCE IN KIND
Notwithstanding the provisions of Articles 1221 and 1222 of the French Civil Code or any other provisions of the Contract, in the event of Supplier’s failure to perform its obligations, the Buyer shall not be entitled to demand performance in kind or to have its obligations performed by a third party at Supplier’s expenses.
ARTICLE 15 – ACCEPTANCE
Once the Works have been performed according to the Technical Specifications, and if the Contract so provides, the Supplier shall issue an Acceptance Certificate, which may be signed by the Buyer with reservations. Provided that the reservations are remedied by the Supplier, the Acceptance Certificate shall be sent to the Buyer for countersignature. If, within seven (7) days following the issuance of the Acceptance Certificate by the Supplier, the Buyer does not countersign the Acceptance Certificate, it shall be deemed approved and the Works shall be deemed accepted by the Buyer. The Buyer shall not be entitled to retain Acceptance due to minor reservations not having an impact on the functioning and/or safety of the Works as per the Technical Specifications.
ARTICLE 16 – CONFIDENTIALITY
For the purpose of this article, “Affiliated Company(ies)” means, in relation to each Party, a company who directly or indirectly Controls, or is Controlled by, or is under common Control with such Party. “Control” of a Party means (i) the ownership, directly or indirectly, of more than fifty percent (50.00%) of the shares having voting rights or other equivalent rights of that Party or (ii) the power to direct or cause the direction of the management and policies of the subject entity, whether through the ownership of voting securities, by contract or otherwise.
For press statements or other public announcements with regards to the Works the Parties shall consult one another beforehand.
Each Party accepts that it shall not use or communicate to a third party any Confidential Information of the other Party for any purpose whatsoever, unless for the performance of its obligations under the Contract by its authorized personnel having a need-to-know thereof and except to an Affiliated Company for the purposes of performance of the Contract by its authorized personnel having a need-to-know thereof, or the Client end customer where necessary. The obligation not to communicate or use the Confidential Information provided herein shall not apply if (i) the communication or use is necessary to continue and guarantee legal remedies against the other Party or (ii) if ordered or required to be disclosed by any applicable law or competent judicial, governmental or other regulatory authority.
Each Party agrees to take reasonable measures to protect the secrecy of the other Party’s Confidential Information and to prevent any unauthorized disclosure of such other Party’s Confidential Information. Without limitation to the above, each Party shall, as a minimum, take the measures which it applies to protect its own most Confidential Information.
This article shall remain applicable after any termination or expiry of the Contract for a minimum period of ten (10) years.
ARTICLE 17 – INTELLECTUAL PROPERTY
“Background Knowledge” shall mean all knowledge, Documentation, Know-How, software (whether object or source code), data, specifications, plans, processes, and more generally all information, whatever its form, as well as all intellectual property rights attached hereto (such as but not limited to patents, and copyrights, hereafter ”IPR”), which the Supplier owned (or is the holder of a license, as the case may be) prior to the effective date of the Contract or which have been subsequently developed or acquired by the Supplier independently from any performance of the Contract.
Know-How” shall mean an information that is secret and specific to the Supplier which describes the methods, calculation models and parameters of models, methodologies, processes, operating methods, algorithms, and more generally everything which allows to perform, design or validate new products, whether contained in the Background Knowledge or the Results.
“Results” shall mean all knowledge, whether patentable or not, methods, Know-How, data, software, data bases or any other kind of data gathering, all reports, plans, drawings, specifications, processes, Studies whatever their media including any intellectual property rights attached thereto which have been created by the Supplier during performance of the Contract.
The Supplier shall remain at all times the sole owner of its Background Knowledge and of the IPR attached to the Results.
17.1 EMS and software license
No ownership rights in the EMS software of Supplier and associated Documentation in whole or in part, is hereby given.
Subject to article TERMINATION, the Supplier hereby grants to the Buyer and/or the project company operating the EMS on Site a non-exclusive right to use the software included in the EMS. This right of use may be sublicensed to the entity operating the EMS on Site on behalf of Buyer for the purpose of such operation of the EMS on the Site only.
The Buyer shall not, and shall not permit any other third party to: (i) bypass or breach any security device or protection used for or contained in the EMS in order to gain access to the software and reproduce, modify, correct, adapt, reverse engineer, disassemble, decompile, decode, or alter the software (ii) use the EMS in any manner, or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right, or that violates any applicable law.
The Supplier grants to the Buyer a non-assignable and non-exclusive right to use the Results, for the sole purpose and within the limits defined in the Contract.
Save as otherwise permitted in writing by the Supplier, such right of use of the Buyer on the Results does not include the right to reproduce the Results in whole or in part, or integrate in Client’s own documentation, or communicate or disclose all or part of the Results to the Client end-customer or any third party.
Such right of use does not include the right to grant sublicenses.
17.3 Trademarks and logos
The Supplier’s trademarks and logos are the Supplier’s property and the Buyer cannot refer to the latter for reference or publicity purposes without the Supplier’s prior written agreement.
ARTICLE 18 – TERMINATION
Either Party may terminate the Contract as of right, without further legal formalities, at any time by registered letter with acknowledgement of receipt, with immediate effect in the following cases: a) in the event that the other Party commits a material breach in its obligation under the Contract, and thereafter fails to diligently take steps to remedy or cure such material breach within sixty (60) days following the receipt by the defaulting Party of written notice to that effect, b) placement into receivership, liquidation of the assets of a Party or any other similar bankruptcy or insolvency procedure stipulated by the current legislation, c) all cases referred to in these GTC giving rise to TERMINATION.
In the case of termination in accordance with the here above provisions, the Buyer shall pay to the Supplier the value of the Works which have been already performed and/or in progress at the termination date, in accordance with the provisions of the Contract. Except in case of termination for Supplier’s default under I a) here above, the Supplier shall be entitled to be paid (i) the full price of any Work performed and/or in progress as of the date of termination; 2) for any other direct loss or costs incurred or irrevocably committed as of the date of termination; and 3) in the case of fixed price or lump sum Work, a portion of the expected profit on the terminated part of the Work not yet performed.
These payments are made within thirty (30) calendar days after receipt of the invoice by the Buyer.
Consequences of the termination for material breach of the Supplier shall be subject in all cases to the provisions of Article “LIMITATION OF LIABILITY” and shall not exceed the liability cap defined in this Article « LIMITATION OF LIABLITY ».
ARTICLE 19 – NON-ASSIGNMENT / SUBCONTRACTING
Any transfer and/or assignment by the Buyer of this Contract or any part thereof without the written consent of the Supplier shall be null and void.
In the event the Buyer transfers any interest in the Contract or the Works provided hereunder, the Buyer will indemnify and hold harmless the Supplier from and against any claims, losses, damages, or liabilities which the Supplier may incur and which it would not have incurred but for such transfer/assignment.
The Supplier is authorized to have part of the Works performed by sub-suppliers as it deems necessary, without need of the Buyer’s approval. The Supplier ensures that sub-suppliers comply with all such applicable obligations of the Contract.
ARTICLE 20 – SEVERABILITY
Each provision of theses GTC is severable and if any provision if determined to be invalid, unenforceable or illegal under any existing or future law by a court, arbitrator of competent jurisdiction or by operation of any applicable law, this invalidity, unenforceability or illegality does not impair the operation of or affect those portions of the Contract that are valid, enforceable and legal.
ARTICLE 21 – SURVIVAL
Any provision of these GTC which by its express terms or its inherent nature requires survival beyond the termination of the Contract in order to be fully effective shall survive such termination in accordance with such provision’s stated term or, in the absence of a stated term, for such period of time as may be required to permit it to be fully effective.
ARTICLE 22 – ETHICS
The Parties represent and warrant to remain in compliance with the EDF Group policies relating to ethics and compliance including its code of conduct (to be found on the website www.edf.fr).
ARTICLE 23 – GOVERNING LAW
The validity, interpretation, performance, implementation and all matters relating to the Contract and any amendment thereto shall be governed by and construed in accordance with the substantive laws of France, irrespective of any rules of conflict of law incompatible with this choice of law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
ARTICLE 24 – DISPUTES
All disputes arising out of or in connection with the Contract shall be promptly settled through amicable negotiations between the Parties upon the request of any Party. In the event that no amicable settlement is reached within fifteen (15) days after such request for amicable negotiations has been given by one Party to the other Party, it shall be referred to the authorized representatives of both Parties for consideration and resolution. If after fifteen (15) additional days of consideration, the Parties are unable to resolve the dispute, the dispute shall be submitted to the competent courts of Paris, France.
#JUR_GTC – Edition 2021 – V01