1.1. These general terms and conditions (hereinafter the “Terms and Conditions”) take precedence over any terms and conditions which appear in the client’s order or in any documents incorporated by reference in the client’s order.
1.2. SOFREN’s failure to object to any provision contained in any communication from the client shall not be construed as a waiver of these Terms and Conditions nor as an acceptance of any such provision.
In these Terms and Conditions:
“Client” means the party who places an Order to SOFREN for the performance of the Services.
“Consultant” means the personnel of SOFREN mobilized for the performance of the Services.
“Days” means business days in France.
“Deliverables” means all the documents provided by SOFREN to the Client under the Services.
“Particular Conditions” means the specifications and modifications and other documents as may from time to time be issued and agreed upon between the Parties. Should a contradiction exist between the Terms and Conditions and the Particular Conditions, the latter shall prevail.
“Party or Parties” means the Client and/or SOFREN.
“Project” means the project identified in the Proposal for which the Services are intended to.
“Proposal” means the written technical and commercial offer issued by SOFREN which include but not be limited to the price, the schedule for completion of the Services, the list of Deliverables and the file related to the qualification of SOFREN’s personnel, based on the Specifications provided by the Client.
“Order” means the entire agreement between the Parties and shall include the Proposal issued by SOFREN on paper or electronic form, the present Terms and Conditions, the Particular Conditions, if any, and all attached and referenced documents, placed by the Client to SOFREN for the performance of the Services, regarding the Specifications, as well as any Variation Order.
“Services” means the engineering consulting activities, related to the Project as further detailed in the Proposal.
“Site” means the Client’s premises or any place where the Services are to be performed as specified in the Order.
“Specifications” means the complete, timely and accurate, technical dossier prepared by the Client containing or referencing all technical documents and data and issued for Order or Variation Order and accepted by SOFREN at Order or Variation Order placement.
“Variation Order” means the document agreed between the Parties detailing any amendment to the Order made through a Variation Request.
“Variation Request” means any addition, deletion, substitution or any other alteration to the Services or the schedule, which is not beyond the general scope of Services under the Order.
ACKNOWLEDGEMENT & ACCEPTANCE
3.1. The time period granted to SOFREN to elaborate the Proposal should be adjusted according to the complexity of the Specifications.
3.2. The Proposal shall be strictly based on the Specifications. Should the Client change the scope of Services from the initial Specifications, SOFREN may provide a new Proposal accordingly.
3.3. The Client shall return to SOFREN the Order stamped, initialed and signed within one (1) month from the receipt of the Proposal, unless otherwise stipulated in the corresponding Proposal. After the expiration of such period, the Client is deemed to have rejected the Proposal and, in case of Client’s late acceptance, such Proposal may be subject to amendment.
3.4. The Parties acknowledge that the Order may be placed by email or by using an electronic procurement solution. In such case, the Order can be signed electronically, and the Parties acknowledge that the electronic data details are sufficient to identify and authenticate the Parties’ signature. Therefore, the Parties certify that the Order signed electronically is an original copy. In any event, the Parties acknowledge that all electronic communication shall be deemed as applicable.
3.5. The accepted Order cancels and replaces all written and/or oral previous conditions or agreements agreed between the Parties not stated in the Order, subject to any confidentiality undertaking that continues to apply between the Parties.
RIGHTS AND OBLIGATIONS OF SOFREN
4.1. Subject to the payment of the price, SOFREN shall supply the Services to the Client in accordance with the requirements of the Order.
4.2. The Consultant shall be competent, properly qualified, skilled and experienced to perform the Services.
4.3. Throughout the period of completion of the Services, SOFREN shall comply with Client's HSE procedures and internal discipline should the Consultant perform the Services at Client’s Site.
4.4. SOFREN undertakes to perform the Services with the highest standard, and in compliance with all applicable laws and regulations especially regarding labour law, concealed employment and social security, health and safety at work. SOFREN shall strictly comply with all rules that might apply to its activities in the framework of the execution of its obligations under the Order and will perform the Services in accordance with all obligations under the law.
RIGHTS AND OBLIGATIONS OF THE CLIENT
5.1. Upon SOFREN’s request, the Client shall provide all the additional documents, information and instructions, in its possession, necessary for the completion of the Services.
5.2. SOFREN shall rely on the accuracy and completeness of the Specifications. The Client shall notify to SOFREN immediately of any change regarding the information supplied to SOFREN.
5.3. Upon prior agreement between the Parties, the Client shall make available to the Consultant for the purpose of the Services any software, equipment, facilities, according to the Specifications and the Proposal.
5.4. The Particular Conditions shall provide the use of internal Client’s software by the Consultant. If specified, the Client undertakes to provide the training of the Consultant for such software.
5.5. The Client shall provide assistance to SOFREN to obtain all required permits and authorizations, if required, to access the Site, according to the Specifications and the Proposal.
5.6. The Client shall not directly or indirectly hire, or purchase the services of any Consultant. This clause shall remain in full force for the entire duration of the Order and one (1) year thereafter.
Should the Client fail to comply with this clause, it shall automatically incur liability to pay SOFREN a fixed compensation of euros (€) 150 000 per Consultant, due within seven (7) Days from occurrence of the breach of this clause.
PERFORMANCE OF SERVICES
6.1. In order to allow SOFREN to commence the performance of the Services, the Parties shall meet at the date agreed in the Particular Conditions to clarify the technical requirements with the Consultant.
6.2. SOFREN shall issue the Deliverables to the Client for Client’s review, comment and approval.
6.3. In absence of notification by the Client within two (2) Days from receipt of Deliverables, such Deliverables shall be deemed to have been delivered in a complete and accurate state and approved by the Client.
6.4. According to clause 6.3, any written notice issued by the Client shall include details of the specific nature of each defect and shall specify the part or parts of the Order containing the obligations which SOFREN has failed to meet. Such notice shall also specify any defects which the Client does not require SOFREN to correct.
6.5. SOFREN shall, on receipt of any such notice, promptly correct all defects detailed in such notice.
6.6. Should the Client raise comments on the corrected Deliverables, the Parties shall meet in order to clarify the defect and the suitable remedy.
7.1. The price shall be paid in euro by bank transfer, unless otherwise agreed in the Particular Conditions. Should the payment be made in other currencies than euro, the Particular Conditions shall provide the exchange rate.
7.2. Should the Consultant be required to be mobilized abroad on Site, all the expenses, such as but not limited to transportation, catering and accommodation, shall be paid by the Client on a reimbursable basis, plus 5% (five percent), provided that such amounts are duly supported.
CONDITIONS OF PAYMENT
8.1. SOFREN shall submit its invoices at the end of each month to the Client. Undisputed invoices shall be paid by the Client within thirty (30) Days from the date of receipt.
8.2. The invoices shall be deemed approved within one (1) week after receipt, if not otherwise notified by the Client. If the Client disputes any invoice in whole or in part, the Client shall motivate such dispute and request SOFREN to issue a credit note for the unaccepted part of the invoice. Upon receipt of such credit note the Client shall pay the undisputed part of the invoice as agreed in payment term.
8.3. The Client shall not be entitled to withhold the payment due to SOFREN as a set off against any alleged amount that SOFREN would due to the Client.
9.1. SOFREN shall be liable for the quality of the Deliverables according to clause 6.
9.2. SOFREN shall not be liable for defects in the Services which are caused by the following:
(a) the reasonable actions of SOFREN in relying on the Specifications;
(b) actual operating conditions being different from those specified in the Specifications or any Variation Request.
(c) work done by the Client and/or Client’s other contractors.
9.3. Neither Party shall be liable to the other for any loss of profit, loss of production, loss of use, loss of contracts, loss of income, loss of business, loss of revenue and for any indirect, special or consequential damages or loss. The aggregate liability of SOFREN in respect of all defaults, claims, losses or damages howsoever caused, whether arising from breach of the Order, the supply or failure to supply of the Services, misrepresentation, tort, breach of statutory duty or otherwise shall in no event exceed an amount equal to 100% of the Order price.
9.4. Nothing in this clause shall be construed to limit or exclude either Party's liability for:
(a) death or personal injury caused by its negligence or that of its Personnel;
(b) any other matter which, by law, may not be excluded or limited.
10.1. Each Party may issue by writing a Variation Request to the other.
10.2. When required by the Client, on receipt of any such Variation Request and where SOFREN considers the Variation Request may impact the price and/or the schedule, SOFREN shall provide a proposal with all necessary documentation supporting its estimation. Following such estimation, the price and/or the schedule shall be subject to adjustment to be agreed in writing with a Variation Order between the Client and SOFREN. SOFREN shall not be required to commence the varied Services until the issuance of the Variation Order.
10.3. SOFREN may issue a documented Variation Request to the Client each time that an occurrence has taken place and for which SOFREN estimates that an adjustment of the price and/or the schedule is needed. Any such Variation Request shall include details of the occurrence including any relevant dates. The Client’s approval shall not be unreasonably withheld.
10.4. Should the Client request to change the Site during the performance of the Services, such change shall be deemed as a Variation Request from the Client in accordance with clause 10.2.
11. SOFREN’S PERSONNEL
11.1. SOFREN shall ensure the monitoring and supervision of its Consultant. It is understood that the Consultant remains under SOFREN’s sole control, authority and direction.
11.2. The Client may directly give instructions, it deems to be absolutely necessary, to the Consultant, working on its premises, if the case arises, to ensure that hygiene and safety regulations are complied with. This however, shall not either release SOFREN from its responsibilities or establish a relationship of subordination between the Client and SOFREN.
11.3. Consultant shall have free of charge and uninterrupted access to the Site during the performance of the Services.
11.4. The Client may request SOFREN to remove from the completion of the Services any Consultant who is, in the reasonable opinion of the Client:
(a) Incompetent or negligent in the performance of its duties;
(b) engaged in activities which are contrary to the applicable law;
(c) not complying with relevant safety procedures or persisting in any conduct likely to be prejudicial to safety, health or environment;
(d) or engaged in acts or omissions which amount to actual or potential willful misconduct, such as breach of the confidentiality obligation as provided in clause 13 hereafter.
11.5. According to Client’s stated reasons and at SOFREN’s sole discretion, SOFREN may remove any such Consultant from the completion of the Services and replace it.
11.6. Should the Consultant travel for the performance of the Services, the Client shall give SOFREN a seven (7) Days prior written notice. The expenses shall complied with the travel policy of SOFREN and be reimburse by the Client within seven (7) Days after receipt of the corresponding invoice.
12.1. Each Party shall treat the Order and any information it may have obtained or received in relation thereto or arising out of or in connection with the performance of the Order or its negotiation or relating to the business or affairs of the other Party, including but not limited to detailed confidential information, patents, trade secrets and other business, financial, marketing, technical, scientific or other information or materials in whatever form supplied or in any way made available in connection with the Services, whether belonging to a Party, its affiliates or third parties, as private and confidential and neither Party shall publish or disclose the same or any particulars thereof without the prior written consent of the other Party.
12.2. The provision of clause 13.1 shall not apply to information which:
(a) Is publicly available at the time of disclosure or becomes publicly available through no fault of the recipient;
(b) Is already lawfully in the possession to recipient prior to being disclosed;
(c) Is lawfully provided or disclosed to recipient by a third party without any obligation of confidentiality;
(d) Is independently develop by recipient, without the use of, in whole or in part, any discloser’s confidential information.
12.3. The recipient may disclose the discloser’s confidential information in order to comply with the requirements of any court, tribunal or government authority. If legally permitted to do so, the recipient shall as soon as possible notify to the discloser such requirement and assist the discloser to obtain protective measures appropriate for the confidential information disclosed.
INTELLECTUAL PROPERTY RIGHTS
SOFREN retains the design rights and other intellectual property rights and copyright of all Deliverables. Upon payment of the price, the Client shall be entitled to use or copy the Deliverables only for the Project and the purpose for which they are intended, and need not obtain SOFREN’s permission to copy for such use.
14.1. If the Project is suspended, the Client may suspend all or part of the Services by giving SOFREN a forty-five (45) Days prior written notice of suspension, with reference to the present sub-article.
14.2. SOFREN shall demobilize the Consultant(s) accordingly.
14.3. The payment is due until the expiration of the aforesaid forty-five (45) Days period, notwithstanding the requested demobilization period.
14.4. The schedule shall be adjusted regarding the duration of the suspension. If the suspension continues for a period of more than two (2) consecutive months, either Party shall have the right to terminate the Order, by giving a prior written notice to the other Party.
SOFREN shall be entitled to terminate the Order should the Client fail to proceed with the payments of invoices in accordance with article 8.
16.1. The Parties shall not have any liability under or be deemed to be in breach of the Order for any delays or failures in performance of the Order which result from any external, unforeseeable, irresistible event beyond their reasonable control, including but not limited to acts of God, fires, floods, wars, sabotage, lockouts, labor disputes, any governmental laws, ordinances, rules, regulations, and any other similar contingency, as such event shall be beyond the control and without the fault or negligence of the Party affected and, by the exercise of reasonable diligence, such Party is unable to prevent or provide against.
16.2. The Party affected shall promptly:
(a) notify the other, giving the full particulars of the nature of the occurrence, the expected duration and the effect upon its performance under the Order;
(b) use all reasonable endeavours to remedy the situation without delay; and
(c) resume full performance of its obligations under the Order as soon as reasonably practicable.
16.3. If such circumstances remain for a continuous period of more than one (1) month, either Party may terminate the Order by written notice to the other Party. Such termination shall be without prejudice to the rights of the Parties in respect of any breach of the Order occurring prior to such termination.
16.4. The Client shall pay SOFREN for all Services completed up to the date of the termination.
17.1. Unless otherwise agreed upon the Parties, all Deliverables shall be supplied in English or in French language as specified in the Particular Conditions.
17.2. SOFREN shall not be liable towards the Client for any of the consequences of erroneous, insufficient and/or deficient translation of Deliverables.
17.3. The Terms and Conditions shall be governed, construed and interpreted in accordance with the laws of France, without giving effect to any conflicts of law provision or rule that would cause the application of the law of any other jurisdiction.
17.4. Should any dispute, controversy or claim arise out of or in connection with the Order, the Parties shall try to settled such dispute amicably between themselves.
17.5. If the Parties are unable to settle the matter within thirty (30) days as from the date of the first notice of dispute, then such dispute shall be finally settled by the Tribunal de Grande Instance of Nanterre (France).