ELPI TERMS OF PURCHASE

ARTICLE 1 – SUBJECT

The Terms of Purchase herein apply to all orders of goods, products and their associated services (hereinafter the “supplies”) as well as all orders of services placed by the purchaser.
The subject of the contract is defined in the order which specifies the nature of the supplies and/or services that the supplier commits to providing.

ARTICLE 2 – DEFINITIONS

The term "purchaser" refers to the company ELPI, which places orders and uses technical and commercial terms approved by the supplier.
The term "supplier" refers to the company designated in the order, which is required to provide the purchaser with the supplies and/or services.
The term "service(s)" refers to any service provided, regardless of its nature, which the purchaser may require.
The Terms of Purchase herein shall prevail over the supplier’s Terms of Sale.

ARTICLE 3 – CONTRACTUAL DOCUMENTS

The contract is constituted of the following documents, ranked in decreasing order of priority:

  • the order, including the Terms of Purchase herein (available for download on the website www.elpifrance.com);
  • acknowledgement of receipt of the order;
  • specifications; and
  • product technical specifications.

In the event of contradiction between the provisions stipulated in these documents, the document ranked highest prevails over the provisions stipulated in a document ranked lower for the obligation in question.

ARTICLE 4 – COMMENCEMENT DATE AND DURATION OF THE CONTRACT

The contract is established on the day the purchaser receives acknowledgement of receipt of the order. This acknowledgement of receipt (without anything being added or deleted and displaying the stamp and signature of a supplier’s authorised proxy) must reach the purchaser within fifteen (15) working days of the placing of the order, except in the case of specific delays expressly authorised by the purchaser.
Any modification made to the order by the supplier must be expressly accepted by the purchaser and shall give rise to another order (or an amendment to the initial order) which integrates this modification.
Beginning the execution of the order, even if prior to the period of fifteen (15) working days following placement of the order, shall be considered to represent acceptation of the order with no reservations.
The duration and renewal of the contract are specified in the order.
It is the responsibility of the supplier to ascertain that the information and data contained in the documents constituting the contract are in accordance with applicable laws and regulations as well as the rules of the trade and to inform the purchaser in the event of any incompatibility.

ARTICLE 5 – PRICE – TERMS OF PAYMENT

The price of supplies and/or services is specified in the order. Unless the opposite is expressly stipulated in the order, the price is definitive, non-revisable, inclusive, and is stated excl. VAT.
Payment terms are specified in the order. Payment shall be made forty-five (45) days end of month.
Under no circumstances may the supplier transfer or delegate their debt without express prior authorisation from the purchaser.
The purchaser reserves the right to adjust amounts owed to the supplier during execution of the contract. Application of a late delivery penalty shall be invoiced to the supplier or deducted from the amount remaining to be paid.

ARTICLE 6 – LATE PAYMENT PENALTY

In the event of total or partial late payment which is not justified by a discrepancy pertaining to execution of the order, the purchaser shall automatically be liable for payment to the supplier of a penalty amounting to three (3) times the applicable legal interest rate.

ARTICLE 7 – DEADLINES

The purchaser reserves the right to verify in person or delegate verification of the progress and proper execution of the contract by the supplier.
All the details stipulated in the order must be complied with by the supplier; no modification may be made to the deadlines stipulated in the order without prior written authorisation from the purchaser.
The penalties applicable are stipulated in the order.
The supplier must immediately inform the purchaser of any event that may impact these deadlines. Should the supplier face delays, and without it being necessary to issue a formal notice, the purchaser reserves the right to:

  • request that the supplier provide details of the measures taken to reduce the delay;
  • apply late delivery penalties, without prejudice to any damage or interest; and
  • cancel all of part of the order should it come to light that the supplier has on a recurring basis failed to set up concrete measures to ascertain delivery within a clearly defined timescale. In this case, late delivery penalties shall be applicable and any down-payment made with the order shall be reimbursed in full by the supplier and without any charges being made (cf. §17).

ARTICLE 8 – TRANSPORT-DELIVERY

The supplier shall bear the cost and risk of delivery of supplies in accordance with "DDP" terms (applicable incoterm on the day of the order) to the delivery location specified in the order, all fees and taxes having been paid by the supplier, unless a specific agreement has been reached between the parties.
The supplier shall bear the cost of packaging and the latter shall be adapted to the supplies in question, the means of transport and delivery location, and must enable unloading without entailing risk of accident and/or damage being caused to the goods.
The supplier declares they shall comply with all the regulations that apply to the transport of goods and products ordered by the purchaser. The supplier shall organise the transport of the goods and products while constantly striving to ascertain their quality is preserved and that the goods and products remain secure at all times, in particular by verifying that the transporter refrains from transporting dangerous products as defined by applicable standards next to the goods and products ordered by the purchaser.

ARTICLE 9 - RECEPTION

Reception involves written acknowledgement by the purchaser of the acceptance of the supplies and/or services with or without reservations.
Reception takes place at the premises designated by the purchaser. No tacit reception shall take place.
Regardless of the reception procedure adopted, the aim of reception is to verify the conformity of the supplies and/or services in terms of quantity, quality and performance and requires the supplier to have previously provided the documents and other deliverables stipulated in the order.
Reception of the supplies and/or services shall not modify or annul the obligations of the supplier, as the latter remains fully responsible for conformity of the supplies and/or services, with regard to:

  • the specifications of the order;
  • the use to which the supplies are intended; and
  • applicable regulations, legislation and standards.

Should it come to light upon reception that the supplier has not met their contractual or legal requirements, the purchaser reserves the right not to acknowledge reception and apply the provisions of article 14 hereinunder, without prejudice to any other claims.

ARTICLE 10 – OWNERSHIP OF THE GOODS

Ownership of the goods shall be transferred as of right to the purchaser on the day of reception subsequently to quantitative and qualitative inspection. Only title retention clauses expressly accepted and signed by the purchaser represent an exception to this principle. In the case of services, the transfer of ownership takes place on the day of the first down-payment if applicable or upon payment in full, although the supplier remains liable for any risks until reception has occurred as defined in article 9 above.
Transfer of ownership includes all physical parts, as well as plans and engineering notes associated with the order, this information being required for future modifications, revamping, maintenance and manufacturing of spare parts.
Subsequently to this transfer of ownership, the purchaser is entitled to use all elements in their possession to promote the company, including photos, articles, references, etc.

ARTICLE 11 – TOOLS AND EQUIPMENT

The standard tools and equipment used by the supplier are and remain the exclusive property of the latter.
Specific tools and equipment designed for the execution of the order belong as of right to the purchaser and must be clearly identified by ownership plates. They must be maintained in good state of repair by the supplier. The supplier must refrain from using these tools/equipment for any other purpose than execution of the order.
These tools/equipment must be handed over to the purchaser as soon as the order is executed or upon the first request from the manufacturer, should the latter deem that circumstances render this necessary.

ARTICLE 12 – WARRANTY

Unless expressly stipulated with the order and independently of legal warranties and regardless of the cause of the defect, the supplier guarantees the supplies and/or services against defects for a period of twenty-four (24) months as from reception without reservations. Should the parties have agreed not to proceed with reception, the warranty shall apply as from delivery of the supplies and/or services at the premises of the purchaser.
During this period, the supplier is expected to take immediate measures to replace any faulty part and/or obtain the supplies and/or services in accordance with the contractual or standard characteristics and performance. The supplier shall bear all costs that arise from such measures, including transport, labour and final adjustments required.
The supplier guarantees traceability of the supplies and declares it shall provide the purchaser with any information required pertaining to the sources and characteristics of the supplies.

ARTICLE 13 - INSURANCE

The supplier must have taken out all the insurance policies required to cover all the risks that are likely to arise in relation to execution and/or non-execution and/or poor execution of the contract whether total or partial, and in particular personal injury, material or non-material damage linked to execution of the contract either through their own fault or that of sub-contractors or sub-suppliers.
The supplier’s third party, production and professional liability cover should amount to at least five (5) million euros per claim.
This insurance policy must be taken out with an insurance company that is known to be solvent and the supplier must be able at any time and upon simple request by the purchaser to provide proof of the existence of this insurance policy and payment of the instalments.
Such an insurance policy must be maintained throughout the duration of the contract and until expiry of the guarantees the purchaser is held to by the contract and/or the law.

ARTICLE 14 - LIABILITY

The supplier shall comply with the terms of the order specifically but not exclusively with regard to deadlines, conformity and quality. The supplier also has a duty to provide advice and information and in general to execute the order in compliance with industry and purchaser standards as well as the rules of the trade.
Furthermore, should it come to light that the supplier has failed to meet their obligations, and depending on the course of action chosen by the purchaser and subject to prior notice having been sent by any means deemed appropriate, the supplier shall: take back (at their expense and risk), replace, produce again or correct any supplies and/or services in question, or bear the cost of the measures required to ascertain that the supplies/services meet conformity requirements.
Within the framework of the execution of the order, the supplier is responsible for any material or immaterial loss or damage (including production losses) suffered by the purchaser through fault of the supplier, their agents, sub-suppliers or sub-contractors.

ARTICLE 15 - INTELLECTUAL AND INDUSTRIAL PROPERTY

The supplier guarantees the purchaser against any claims concerning intellectual or industrial property rights, while executing the contract and/or service and while the supplies or services are in use.
The supplier transfers exclusively to the purchaser all creations (technical or intellectual in any means or form) undertaken within the framework of the order, in accordance with article L. 131-3 of the intellectual property law, during the various stages of their elaboration as well as the relevant intellectual property rights and in particular rights of reproduction, representation, adaptation, commercialisation and use, for the entire legal period stipulated in article L. 123-1 of the aforementioned law, on a worldwide basis.
As a consequence, only the purchaser shall be authorised to reproduce, adapt, modify, diffuse and exploit the aforementioned creations in any way or form.
Plans, technical drawings, sketches, engineering plans, models, software, notes and in general all the documents and written or oral information communicated to the supplier during the execution of the contract remain the exclusive property of the purchaser of or their author.

ARTICLE 16 - CONFIDENTIALITY

Any information, in any way of form, which is communicated to the supplier or which the latter may have access to within the framework of the contract must be considered strictly confidential and used exclusively for the purpose of executing the order. The supplier is responsible for ascertaining that all subcontractors and sub-suppliers also abide by this confidentiality clause.
Under no circumstances may the contract be used for advertising purposes, whether directly or indirectly, without prior written authorisation being granted by the purchaser.

ARTICLE 17 - TERMINATION - CANCELLATION

Should the supplier fail to meet any of their obligations stipulated in the contract and not take the necessary measures within a period of fifteen (15) days of the sending of a registered letter with acknowledgement of receipt providing notification of the failure to meet the obligation, the purchaser may choose to either terminate or cancel the contract, without prejudice to damage and interests the purchaser may claim from the supplier as reparation for the damage suffered.
In this case, the supplier shall pay back to the purchaser any down-payment already made. In the event of termination brought about by the supplier failing to meet their obligations, no payment may be requested from the purchaser for non-delivered orders.

ARTICLE 18 - SUBCONTRACTING

The supplier may not resort to any subcontractors or sub-suppliers without prior written agreement from the purchaser. It is also the duty of the supplier to obtain acceptation of the payment terms from the purchaser. Under no circumstances does the agreement pertaining to the subcontractors or sub-suppliers involve any opinion of their expertise. The supplier remains solely responsible for execution of the contract.
The supplier shall ascertain that these sub-contracts abide by all the contractual and legal provisions which enable the execution of the contract in accordance with the standards of the profession and contractual obligations.
Furthermore, the purchaser reserves the right to make payment conditional on the supplier providing proof that the latter has paid its subcontractors and sub-suppliers.

ARTICLE 19 - TRANSFER

The contract cannot be transferred, either partly or totally, by the supplier without prior written agreement from the purchaser.
In the event of transfer of the contract by the purchaser, the supplier declares it shall expressly reiterate their consent to this transfer whenever required to do so, and declares as of now that it releases the purchaser from any rights and obligations agreed to within the framework of the contract, which will be transferred to the transferee as a result of the transfer, and that it shall sign any document and complete any procedure that may be required to this effect.

ARTICLE 20 - FORCE MAJEURE

An external, unpredictable and unsurmountable event that renders impossible the execution of all or part of the contractual obligations shall be considered a case of force majeure.
The party concerned shall notify the other party of the discovery of the existence of such an event in writing and within forty-eight (48) hours of the occurrence of the event. The contractual delivery deadlines shall be postponed for a period of time that is equivalent to the duration of the force majeure.
Should a case of force majeure last for more than thirty (30) working days, either party may terminate the contract by notifying the other party by registered letter with acknowledgement of receipt.
The following shall not be considered as cases of force majeure:

  • Strikes taking place at the supplier, sub-suppliers or subcontractors
  • Direct or indirect consequences of supplier, sub-supplier or subcontractor I.T. system failure.

The ending of the case of force majeure shall be notified to the other party in writing within forty-eight (48) hours of it coming to an end.

ARTICLE 21 - HEALTH – SAFETY – ENVIRONMENT – LABOUR LAW

The supplier declares it shall comply with applicable legislation and regulations and in particular standard provisions that apply in the profession with regard to health and safety, environmental laws and all labour law provisions in particular pertaining to staff representation and undeclared work, whether the supplier intervenes alone or simultaneously with other suppliers. The supplier shall also comply with all regulations that apply on specific premises, such as Codes of Conduct for external companies.
The supplier remains fully responsible for its staff and must thus ascertain that the latter are aware of: i) internal regulations, ii) safety instructions, iii) specific regulations in particular concerning the use of personal protective equipment (PPE).
In addition to abiding by the aforementioned laws and regulations, the supplier shall comply with the instructions and procedures established by the purchaser in terms of protection of the environment and quality.

ARTICLE 22 - APPLICABLE LAW

  • If at least one of the parties is French:
    The contract (specific provisions and terms of purchase herein) is subject to French law, with the exception of any rules pertaining to conflicting laws.
  • If neither of the parties is French:
    The contract (specific provisions and terms of purchase herein) is subject to the terms of the Vienna Convention dated 11th April 1980, which applies to international sales of goods. In the case of provisions that are not subject to the Vienna Convention and for contracts pertaining to services, the applicable law shall be that of the nationality of the purchaser.

ARTICLE 23 - JURISDICTION

Any discrepancy or any claim concerning the validity, interpretation or execution of the contract (specific conditions and terms of purchase herein) shall come under the exclusive jurisdiction of the courts of law to which the purchaser’s head offices answer to when entering into the contract.