VEOLIA WATER TECHNOLOGIES SOLYS– GENERAL TERMS FOR STANDARD SOLUTIONS AND SPARE-PARTS

 

NOTICE: SALE OF ANY SOLUTION AND/OR SPARE-PART IS SUBJECT TO ACCEPTANCE BY CUSTOMER OF THE  HEREIN TERMS,  AS WELL AS ANY OTHER TERMS SET FORTH IN SOLYS’S PROPOSAL.

 


1.              General

(a) SOLYS is a dedicated manufacturing and supply chain platform in charge of standardizing various water treatment systems, component lines and processes which aims to reduce production, assembly and supply chain costs and support competitiveness of VEOLIA Water Technologies business units.

(b) Any sale by SOLYS of any standard water treatment system and/or equipment whether modified or not or any bespoke water treatment system and/or equipment (the “Solution(s)”) and/or any spare-parts related thereto (the “Spare-Parts”) – as those are offered for sale in the SOLYS’s Catalogue available on VEOLIA Water Technologies intranet site at the following address:

http://www.veoliawatertech-intranet.net/offer-technologies/standard-solutions-platform/ (“SOLYS Catalogue”) by any legal entity belonging to SOLYS which is placed under direct or indirect control or management of Veolia Water Technologies SOLYS (“SOLYS”) to any person or company (the “Customer”) shall be governed by the present General Terms for Standard Solutions and Spare-Parts (the “General Terms”).

The present General Terms shall apply to any sale or purchase of Solutions and/or Spare-Parts. Any attempt by Customer to impose its own terms and conditions, for example by referring to different terms in any order for purchase of Solutions, shall be invalid, void and of no effect.

(c) Upon receipt of an order for purchase of Solutions and/or Spare-Parts from a Customer or on its own initiative, SOLYS may address to that Customer a proposal for sale of Solutions and/or Spare-Parts (the “Proposal”) which will automatically render any previous order from Customer having the same subject matter void and of no legal effect.

Upon receipt by SOLYS of Proposal unconditionally agreed by Customer, such Proposal will be legally binding for both SOLYS and Customer (individually a “Party” and together the “Parties”) and will form the Special Terms of the supply contract (the “Contract”) so entered between the Parties. For the avoidance of doubt Special Terms shall prevail on the present General terms.

(d) The Parties hereby waive any right arising out of any custom or usage in the trade or course of dealing between them which would be contrary to the herein General terms.

The Parties acknowledge and agree that the United Nations Vienna Convention on Contracts for the International Sale of goods (11 April 1980) is hereby excluded.

2. Specifications of Solutions – Technical Description of Spare-Parts

2.1. Specifications of Solutions

(a) Any and all specifications applicable to the Solutions (the “Specifications”) will be set forth in the Navigator tool available on VEOLIA Water Technologies Intranet site and/or in the Proposal.

(b) Upon delivery of Solutions, SOLYS shall provide Customer with applicable operating and maintenance manual which is necessary to installation and operation thereof (the “Documentation”).

The Parties acknowledge and agree any such Documentation will be in the English language. Should Customer request Documentation to be provided in any other language, including for purposes of compliance with legislation or regulatory requirements, cost of translation shall be charged to Customer in addition to the Price of Solutions.

(c) Unless otherwise agreed in writing, all expenses incurred to give proper effect to the terms of the Contract shall be borne by Customer. If by any applicable legislation or regulation, any approval, permit or license shall be required or any report shall be filed with any public authority to enable Customer to market, sell or distribute Solutions, such approval, permit or license shall be obtained or such report filed by Customer in an accurate and timely manner at its own risks and expenses. Customer shall further provide all necessary information and assistance to SOLYS, in a timely and accurate manner, to enable SOLYS to comply with any registration or filing requirements that may apply to SOLYS in relation with the performance of the Contract. For the avoidance of doubt Customer shall provide SOLYS at its own expense with all documentation, including required translation thereof, which may be required to obtain any CE Certification or any similar certification.

2.2. Technical Description of Spare-Parts

A description of technical characteristics of Spare-Parts (the “Technical Description”) shall be set forth in the VEOLIA WATER TECHNOLOGIES intranet site and/or in the Proposal

3. Specifications modification

Unless otherwise agreed in writing between the Parties, SOLYS shall not be bound to accept any request aiming to modify Specifications.

SOLYS shall not make any modification to Specifications unless Customer has expressly accepted them in writing.

4. Drawings, information and Intellectual Property Rights

Drawings, information and Intellectual Property Rights related to Solutions which will be supplied to Customer shall be used by Customer for the sole purpose of completing, maintaining, adjusting and repairing Solutions. For the herein purposes “Intellectual Property Rights” shall mean all rights in any country or jurisdiction in patents, inventions, trade secrets and other rights in know-how, copyrights (including by extensions or renewals), rights affording equivalent protection to copyright, data, rights in databases, registered designs, design rights, industrial designs and utility models, trademarks, trade names, business names, trade dress, logos, domain names and all registrations or applications to register any of the foregoing items.

Customer’s right to use drawings, information and Intellectual Property Rights shall be limited to a personal non-exclusive and non-transferable license, except as the case may be to the benefit of the end client and/or final customer and/or user, and granted on non-exclusive basis for the sole purposes of installation, operation, maintenance and repair of said Solutions.

Unless expressly authorized by SOLYS in writing, Customer shall not disclose any such drawings, information and Intellectual Property Rights to any third party other than its employees, its final customer and/or end user, or governmental inspectors, for a period of ten (10) years after delivery.

This Clause 4 shall survive expiration or termination for whatever cause of the Contract

5. Packing and Delivery of Solutions and Spare-Parts

(a) Except as may be otherwise provided for in the Special Terms, Prices of the Solutions and/or the Spare-Parts are deemed to refer to packed equipment at SOLYS’s facilities in accordance with the Proposal.

Specific packing will be done upon Customer’s specific request by SOLYS to that effect and at Customer’s costs and expenses.

(b) Notwithstanding anything to the contrary in the Special Terms, Terms and conditions of delivery of both Solutions and/or Spare-Parts shall be EX WORKS (INCOTERM ICC 2010).

SOLYS shall deliver both Solutions and/or Spare-Parts at the date specified in the Special Terms (the “Delivery Date”).

6. Transfer of title and transfer of risks

(a) Legal title to Solutions and/or Spare-Parts sold and purchased under the Contract shall be vested in Customer upon payment of the entire price of any Solutions and/or Spare-Parts.

(b) Risk of loss or damage to Solutions and/or Spare-Parts will pass to Customer according to the applicable INCOTERM.

For the avoidance of doubt this Article 6 will remain applicable where transportation of said Solutions and/or Spare-Parts is performed by SOLYS upon Customer’s request.

7. Price

(a) Consideration for sale of Solutions and/or Spare-Parts under the Contract will be specified in the Special Terms (the “Price”).

Except as may be otherwise provided for in the Special Terms, Price shall be free from any VAT, sales consumer use and other similar taxes excise and custom duties required by law either in the country of production and/or in the country of installation of the equipment and Customer shall be sole liable of the payment of any such taxes or duties.

(b) Except as may be otherwise provided for in the Special Terms, payment of the Price shall be due thirty (30) days after the last day of the month in which the invoice has been received unless disputed with supporting and valid written documentation received by SOLYS from Customer within the above mentioned thirty (30) day period. In case of any such dispute, Customer shall pay the undisputed part of the invoice within the hereinabove mentioned thirty (30) day period.

Any late payment shall bear at least interest computed on a daily basis from the due date until paid in full at the rate of three (3) times the French legal rate on the amount of the unpaid invoice. In addition, a lump sum of forty (40) euros shall also be payable by Customer to SOLYS in case of any late payment.

(c) Where Customer is controlled by French-registered Veolia Water Technologies, (SAS) (the “control” being defined by reference to the provisions of article L.233-1 & seq. of the French code de commerce),  Customer shall pay SOLYS through its current account with the French registered company Veolia Water Technologies (SAS). Such payment shall require a prior notice to both SOLYS and Veolia Water Technologies (SAS).

(d) This Clause 7 shall survive expiration or termination for whatever cause of the Contract

8. Inspections of Solutions

Customer shall be entitled to inspect Solutions during the course of their assembling and after completion thereof.

Such an inspection shall be carried out on the assembling platform in the presence of a SOLYS representative during normal business hours provided it shall not hinder the performance of SOLYS’s works and services and Customer shall give SOLYS forty-eight (48) hours prior notice of his intention to perform such an inspection.

This Clause 8 shall survive expiration or termination for whatever cause of the Contract.

9. Tests

Any factory test on Solutions or Spare-Parts required by Customer shall be conducted at Customer’s sole costs and expenses.

10.  Warranty

This Clause 10 shall survive expiration or termination for whatever cause of the Contract

(A) SOLYS  HEREBY  ACCEPTS   TO   PROVIDE  A  WARRANTY  ON  ANY SOLUTIONS AND/OR SPARE-PARTS SOLD TO CUSTOMER PROVIDED SUCH WARRANTY FULLY COMPLIES WITH THE TERMS AND CONDITIONS SET FORTH IN THIS CLAUSE 10.1 (THE “WARRANTY”).

 (B) IN ADDITION, THE ENTITLEMENT OF CUSTOMER TO ANY BENEFIT OF THE WARRANTY SHALL BE SUBJECT TO THE FOLLOWING CUMULATIVE CONDITIONS:

1. THE SOLUTIONS AND/OR SPARE-PARTS SHALL HAVE AT ALL TIMES BE PROPERLY STORED AND TRANSPORTED BY CUSTOMER PROPERLY AND/OR IN ACCORDANCE WITH THE INSTRUCTIONS PROVIDED BY SOLYS UNLESS CUSTOMER CAN PROVIDE REASONABLE EVIDENCE THAT NO SUCH STORAGE OR TRANSPORTATION WAS THE CAUSE OF ANY ALLEGED DEFECT.

2. THE SOLUTIONS AND/OR SPARE-PARTS SHALL HAVE AT ALL TIMES BEEN USED, OPERATED AND MAINTAINED (I) IN ACCORDANCE WITH SOLYS’S INSTRUCTIONS FOR USE – SAVE WHERE SUCH USE, OPERATION OR MAINTENANCE DOES NOT AFFECT SAFETY OF THE SOLUTIONS AND/OR SPARE-PARTS – INCLUDING IN ACCORDANCE WITH ANY INSTRUCTIONS FROM SUPPLIERS OF SOLYS FOR USE OF COMPONENTS EMBEDDED IN THE SOLUTIONS AND/OR SPARE-PARTS (II) UNDER NORMAL INDUSTRY PRACTICES AND (III) ONLY WITH ACCESSORIES, EQUIPMENT OR PARTS SPECIFICALLY APPROVED BY SOLYS, UNLESS CUSTOMER CAN PROVIDE REASONABLE EVIDENCE THAT NO SUCH USE, OPERATION OR MAINTENANCE WAS THE CAUSE OF ANY ALLEGED DEFECT. THE SOLUTIONS AND/OR SPARE-PARTS SHALL NOT HAVE BEEN REPAIRED, ALTERED OR MODIFIED WITHOUT SOLYS’S APPROVAL, UNLESS CUSTOMER CAN PROVIDE REASONABLE EVIDENCE THAT NO SUCH REPAIR, ALTERATION OR MODIFICATION WAS THE CAUSE OF AN ALLEGED DEFECT OR WHERE IT WAS THE CAUSE OF AN ALLEDGED DEFECT WAS ONLY RELATING TO A ROUTINE REPAIR OR MINOR ACCIDENT/BREAKDOWN WHICH NORMALLY OCCURS IN THE OPERATION OF A MACHINE IF SUCH REPAIR IS MADE WITH SUITABLE MATERIALS AND ACCORDING TO STANDARD PRACTICE AND ENGINEERING. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ANY CONSEQUENCES THAT MIGHT RESULT FROM THE USE OF THE SOLUTIONS AND/OR SPARE-PARTS SOLD, WHETHER THEY ARE USED ALONE OR IN COMBINATION WITH OR INCORPORATED INTO OTHERS. IT IS MUTUALLY AGREED BY THE PARTIES THAT NO PROCESS WARRANTY IS PROVIDED BY SOLYS. FOR THE AVOIDANCE OF DOUBT, THE INFORMATION AND TECHNICAL ADVICE GIVEN BY SOLYS CONCERNING THE CHARACTERISTICS, EFFICIENCY AND INSTRUCTIONS FOR USE OF THE SOLUTIONS AND/OR SPARE-PARTS SOLD, SHALL CONSTITUTE MERE INDICATIONS AND SHALL NOT IMPLY ANY LIABILITY FOR SOLYS, WHO MERELY SUPPLIES THE SOLUTIONS AND/OR SPARE-PARTS IN CONFORMITY WITH THOSE ORDERED. THE INSTRUCTIONS FOR USE APPEARING ON THE PACKAGING ARE THOSE APPLICABLE TO NORMAL AND GENERAL CONDITIONS OF USE OF THE SOLUTIONS AND/OR SPARE-PARTS, AND SHALL IN NO WAY APPLY TO SPECIAL OR PARTICULAR USES AND CASES.

3. THE SOLUTIONS AND/OR SPARE-PARTS HAVE NOT BEEN MISUSED, USED ILLEGALY OR DAMAGED BY EXTERNAL FORCE.

4. THAT ANY COMPLAINT FROM CUSTOMER SHALL BE NOTIFIED IN WRITING TO SOLYS IN THE CASE OF ALLEGED DEFECTS (I) WITHIN TWELVE

(12) MONTHS OF THE DELIVERY DATE OR, WHERE DELIVERY IS DELAYED AT

SOLYS’S INITIATIVE, OF DATE OF EFFECTIVE DELIVERY OF THE

SOLUTIONS AND/OR SPARE-PARTS OR (II) WHERE THE COMMISSIONING OF THE SOLUTIONS AND/OR SPARE-PARTS ON THE END CLIENT’S SITE CANNOT BE REASONABLY PERFORMED BY CUSTOMER IMMEDIATELY AFTER DELIVERY THEREOF, WITHIN THE PERIOD SET FORTH IN THE HEREINABOVE ITEM (I) EXTENDED OF THE LIME ELAPSED BETWEEN THE DELIVERY DATE AND THE DATE OF COMPLETION OF COMMISSIONING PROVIDED THE OVERALL PERIOD INCLUDING SUCH EXTENSION CANNOT EXCEED EIGHTEEN (18) MONTHS AS FROM DELIVERY DATE. NOTWITHSTANDING THE FOREGOING WHERE ACCEPTANCE OF THE SOLUTIONS AND/OR SPARE-PARTS IS              MADE DURING DELIVERY PROCESS IN THE PRESENCE OF A REPRESENTATIVE OF CUSTOMER, THE SOLUTIONS AND/OR SPARE-PARTS SHALL BE DEEMED TO BE APPROVED BY CUSTOMER IF NO NOTIFICATION OF DEFECTS IS MADE AT ACCEPTANCE.

5. THAT CUSTOMER SHALL PROVE TO SOLYS’S SATISFACTION THAT THE ALLEGED DEFECT IS ONE COVERED BY ONE OR MORE OF THE PROVISIONS OF WARRANTY AND SOLYS SHALL HAVE SOLE DISCRETION WHETHER THE SOLUTIONS AND/OR SPARE-PARTS, OR THE PART IN QUESTION, SHOULD BE MADE AVAILABLE FOR INSPECTION BY VWT SOLYS’S REPRESENTATIVE AT CUSTOMER’S PREMISES – OR ON END CLIENT’S SITE – OR WHETHER THE SAME SHOULD BE RETURNED TO SOLYS AT CUSTOMER’S COST AND RISK. CUSTOMER SHALL ALSO BE RESPONSIBLE FOR ALL COSTS OF REDELIVERY OF AN ALLEGED DEFECTIVE PART AFTER EXAMINATION AND/OR REPAIR BY SOLYS.

6. THAT WHERE SOLYS SOURCES ACCESSORIES, EQUIPEMENT OR PARTS OF THE SOLUTIONS AND/OR SPARE-PARTS FROM A GIVEN SUPPLIER, THE WARRANTY SHALL NOT EXCEED THE WARRANTY GRANTED ON SUCH ACCESSORIES, EQUIPMENT OR PARTS BY THE SUPPLIER.

7. THAT – NOTWITHSTANDING ANYTHING TO THE CONTRARY IN APPLICABLE LAWS – ANY WARRANTY EXTENDS ONLY TO DEFECTS WHICH CAN BE SHOWN TO BE DUE TO DEFECTIVE MATERIAL OR WORKMANSHIP OR FAULTY ASSEMBLY BY REFERENCE TO THE SPECIFICATIONS, TO THE EXCLUSION IN PARTICULAR OF ANY DEFECTS CAUSED BY TRANSPORTATION, IMPROPER HANDLING, TAMPERING WITH THE MATERIAL SUPPLIED, OR NORMAL WEAR AND TEAR.

8. SOLYS’S RESPONSIBILITY SHALL IN ALL CASES BE LIMITED TO THE REPLACEMENT OR REIMBURSEMENT BY WAY OF A CREDIT NOTE OF THE DEFECTIVE DELIVERY.

 

(C) THIS WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY PROVIDED BY SOLYS TO CUSTOMER IN RELATION TO THE SUPPLY OF THE SOLUTIONS AND/OR SPARE-PARTS. SOLUTIONS PLATFORM MAKES NO OTHER WARRANTIES OF ANY KIND WHATSOEVER, WHETHER STATUTORY OR CONTRACTUAL EXPRESS OR IMPLIED, ORAL OR WRITTEN OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR PERFORMANCE OR MERCHANTABILITY OR NON-INFRINGEMENT, OR WARRANTIES ARISING BY CUSTOM, TRADE USAGE, PROMISE, EXAMPLE OR DESCRIPTION, ALL OF WHICH WARRANTIES ARE EXPRESSLY DISCLAIMED BY SOLYS AND WAIVED BY THE CUSTOMER.

11.  Liability

(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN APPLICABLE LAWS SOLYS’S TOTAL AGGREGATE LIABILITY IN RELATION TO  THE CONTRACT, WHETHER BASED ON BREACH OF CONTRACT, STATUTORY WARRANTY, TORT OR OTHERWISE, SHALL IN NO EVENT EXCEED ONE HUNDRED PERCENT (100%) OF THE PRICE.

(b) SOLYS SHALL NOT BE LIABLE TO CUSTOMER AND CUSTOMER SHALL NOT CLAIM FROM SOLYS ANY INDEMNITY, REIMBURSEMENT, COMPENSATION OR DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF GOODWILL, LOSS OF OPPORTUNITIES, LOSS OF USE, LOSS OF BRAND REPUTATION, LOSS OF PRODUCTION, LOSS OF CONTRACTS, AND FOR ANY AND ALL SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES GENERALLY AND PARTICULARLY, WITHOUT LIMITATION, FOR, OR FOR LOSS OF EXPENDITURES, INVESTMENTS OR OTHER COMMITMENTS MADE IN ANTICIPATION OF CONTINUED BUSINESS HEREUNDER, ALLEGED TO ARISE FROM THE EXPIRATION OR PROPER TERMINATION OF THE CONTRACTOR THE PERFORMANCE OR FAILURE TO PERFORM ANY OF ITS OBLIGATIONS UNDER  THE  CONTRACT, REGARDLESS OF WHETHER ANY SUCH CLAIM  ARISES OUT OF BREACH OF CONTRACT, WARRANTY, TORT PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.

(c) No limitation or exclusion of liability of a Party shall apply to death or personal injury caused by the negligence of that Party and/or in the case willful negligence of that Party.

(d) This Clause 11 shall survive expiration or termination for whatever cause of the Contract

12.   Force Majeure

Neither Party shall be held liable for delay or failure in performance of any part of this Contract to the extent that delay or failure is caused by a force majeure event, including but not limited to: accidental damage to its equipment or machinery; Act of God or public enemy; blockade; bomb or explosion; delay by any carrier; earthquake or other natural disaster; illness or epidemic; fire or flood; war, act of terrorism strike, embargo, government requirement, riot or other civil unrest or violence; weather conditions; inability to act due to government action or inaction; disruption in obtaining supply of goods; or labour strike or lockout act or omission of carriers or other similar causes beyond its control (“Force Majeure Event”).

Should any such Force Majeure Event  occur and a Party be delayed or unable to perform any part of the Contract, then that Party shall give reasonable notice to the other of such delay or incapacity, and will be excused from performance under this Contract for the duration of such Force Majeure Event.

Should the duration of such Force Majeure Event exceed thirty (30) days, either Party shall have the right to terminate the Contract by registered letter with forty-five (45) days prior notice.

13.  Liquidated damages

(a) In case of failure by SOLYS to deliver any Solutions and/or Spare-Parts on Delivery Date (or on the later date mutually agreed according to Clause 5 b)), SOLYS shall be liable for liquidated damages at the rate of : VR / 3000, where V is the Price of said Solutions or Spare-Parts and R is the number of days of delay in delivery.

Any such liquidated damages will be subject to LDs Cap on SOLYS and shall constitute Customer’s sole and exclusive remedy for SOLYS's liability for delay in delivering said Solutions or Spare-Parts.

Any such liquidated damages shall not exceed a total cumulated amount of seven (7) % of the Price (“LDs Cap on SOLYS”).

SOLYS shall not be liable and shall not pay any liquidated damages for any delay which result in full or in part from a failure by Customer to timely fulfil any prerequisite to said Solutions and/or Spare-Parts supply or delivery such as providing drawings and information, components or other items to be expressly provided by Customer under the Contract.

(b) In case of failure by Customer to take over Solutions and/or Spare-Parts on Delivery Date (or on the later date mutually agreed according to Clause 5 b)), Customer shall be liable for liquidated damages at the rate of : VR / 3000, where V is the Price of said Solutions or Spare-Parts and R is the number of days of extra warehousing caused by delay in taking over.

Any such liquidated damages will be subject to LDs Cap on Customer and shall constitute Solutions Platform’s sole and exclusive remedy for Customer's liability for delay in taking over said Solutions or Spare-Parts.

Any such liquidated damages shall not exceed a total cumulated amount of 7 % of the Contract Price (“LDs Cap on Customer”).

In case of a delay exceeding one hundred (100) days, SOLYS shall be entitled to remove all Solutions and/or Spare-Parts from the delivery site and to sell said Solutions and/or Spare-Parts to a third party. The costs reasonably incurred and evidenced by SOLYS to remove said Solutions and/or Spare-Parts shall be charged to Customer in addition to the Price to be however paid by Customer to SOLYS. Should SOLYS finally sell said Solutions and/or Spare-Parts to a third party, net proceeds of such sale shall be vested in Customer.

(c) This Clause 13 shall survive expiration or termination for whatever cause of the Contract

14.  Termination

(a) SOLYS will have the right to terminate the Contract provided Customer fails:

(i) to make any payment to SOLYS in accordance with the Contract, including but not limited to payment on due date of Price or any interest or other sums due; and/or

(ii) to take over Solutions and/or Spare-Parts causing Cap for LDs on Customer to be reached, and any such failure has not been rectified by Customer within thirty (30) days of receipt of a written notice to do so from SOLYS.

(b) Customer will have the right to terminate the Contract provided SOLYS fails to deliver Solutions and/or Spare-Parts causing Cap for LDs on Customer to be reached, and any such failure  has not been rectified by SOLYS within thirty (30) days of receipt of a written notice to do so from Customer.

(c) Either Party shall have the right to terminate the Contract if:

(i) the other Party becomes insolvent or is adjudged bankrupt or

(ii) either Party ceases to be under common control with the other and “control” means the ability, directly or indirectly, to direct the affairs of another by means of ownership, contract or otherwise.

(d) Notwithstanding anything to the contrary in the Contract, in case of termination of Contract by SOLYS by virtue of Clause 14 b) or 14 c), SOLYS may at its option declare any sum remaining unpaid under the Contract immediately due and payable, and in this case may elect either to (i) claim for payment of any such sum, thereby vesting legal title in Customer, or (ii) retake said Solutions or Spare-Parts without complying with or being bound by any of the provisions of the Contract and for that purpose may enter into any premises where Solutions or Spare-Parts may be and retake the same and may thereafter pursue such remedies as are permitted by the applicable law.

15.  Export – Re-export

(a) Customer shall not export or re-export, directly or indirectly, or provide to any other person or entity for export or re-export, any Solutions or Spare-Parts, or technical data related thereto, without first complying with all applicable export control laws and regulations of any jurisdiction to which Customer or any such Solutions or Spare-Parts are subject to, including, without limitation, obtaining any necessary export or re-export consent from the U.S. Department of Commerce, Export Controls Division-Foreign Affairs and International Trade Canada. Any breach of the foregoing obligation by Customer shall constitute a material breach of the Contract.

(b) Customer, at its own expense, shall indemnify and hold harmless SOLYS from any claim or action brought against SOLYS and/or any Affiliate thereof based on a claim that Customer breaches obligation of Clause 15 (a), and, will pay for any judgment awarded against SOLYS and/or any Affiliate thereof, including any damages, reasonable attorney’s fees, court and expertise fees and any other expenses incurred by reason of any such claim or action, provided that:

(i) Customer shall be notified promptly in writing by SOLYS and/or Affiliate thereof of any such claim or action; and

(ii)  SOLYS  and/or  Affiliate  thereof  shall  cooperate  fully  at  Customer’s  expense  with Customer in the defense, settlement or compromise of such claim or action.

16.  Corruption

(a) Customer represents and warrants the following for the duration of the Contract:

1. Neither Customer nor any of its shareholders, directors, officers, or employees is and will be related to or affiliated with any foreign government official or any family member of any foreign government official;

2. Customer has no and will have no undisclosed subagents, subcontractors, or third parties who have any role in the sale or distribution of Solutions and/or Spare-Parts;

3. Customer has not been and will not be convicted of or pled guilty to an offense involving fraud, corruption, or moral turpitude, and is not now listed by U.S. or foreign government agency or as debarred, suspended, proposed for suspension or disbarment, or otherwise ineligible for government procurement programs;

4. Customer has not and will not, directly or through an intermediary, give or offer to give anything of value, including a political contribution or charitable donation, to a government official or representative or a political party official or candidate for political office, for purposes of inducing such person to use his/her influence to assist Customer or SOLYS in obtaining or retaining business or to benefit Customer or SOLYS or any other person in any way, and will not otherwise violate the  US Foreign Corrupt Practices Act, the UK Bribery Act or any similar applicable legislation.

Any partial, incorrect or false representation or warranty by Customer with reference to the foregoing representations and warranties shall constitute a material breach of the Contract.

(b) Customer, at its own expense, shall indemnify and hold harmless SOLYS from any claim or action brought against SOLYS and/or any Affiliate thereof based on a claim that Customer breaches obligation of Clause 16 (a), and, will pay for any judgment awarded against SOLYS and/or any Affiliate thereof,  including any damages, reasonable attorney’s fees, court and expertise fees and any other expenses incurred by reason of any such the claim or action, provided that:

(i) Customer shall be notified promptly in writing by SOLYS and/or Affiliate thereof of any such claim or action; and

(ii)  SOLYS and/or Affiliate thereof shall cooperate fully at Customer’s expense with Customer in the defense, settlement or compromise of such claim or action.

17.  Entire Agreement.

This Contract shall constitute the Entire Agreement between the Parties with respect to the subject matter of this Contract and shall not be modified or rescinded, except in writing signed by both Parties.

The provisions of this Contract supersede all prior oral and written quotations, communications, agreements, and understandings of the Parties with respect to the subject matter of this Contract.

If any provision or part of these General Terms or the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable, then that provision will, to the extent required, be given no effect and will be treated as though it were not included without, as far as is possible, modifying any other clause or part of these General Terms or the Contract and the validity or enforceability of the remaining provisions of these General Terms or the Contract will not be affected.

18.  Dispute resolution.

(a) Where the Parties are both under the ultimate common control of the French-registered-company Veolia Water Technologies (SASU), if any dispute arises between the Parties in connection with the Contract for which mutual agreement cannot be reached by the Parties within sixty (60) days from notification of such dispute by either Party to the other, it shall be finally and exclusively settled by the General Management of Veolia Water Technologies (SASU) or any representative thereof.

(b) Where the Parties are not under such ultimate common control or cease to be thereunder, if any dispute arises between the Parties in connection with the Contract for which mutual agreement cannot be reached within sixty (60) days from notification of such dispute by either Party, it shall be finally and exclusively submitted to the Commercial Courts of Paris - France.

19.  Governing Law

Any Contract shall be governed and construed in accordance with the laws of the country where Solutions Platform’s principal place of business is located.

20.  Language

Unless otherwise agreed between the Parties or unless required by applicable laws and regulations, transactions under the Contract, notices and other communications required or appropriate hereunder, shall be given in English.

 


 

 

PARTICULAR TERMS FOR SALE OF MUNICIPAL SOLUTIONS

 

NOTICE: ANY SALE OF MUNICIPAL SOLUTION(S) (OPALIUM RANGE) IS CONDITIONAL UPON CUSTOMER’S UNRESERVED ACCEPTANCE OF BOTH VEOLIA WATER TECHNOLOGIES SOLYS GENERAL TERMS FOR SOLYS AND SPARE-PARTS AND THE HEREIN TERMS, AS WELL AS ANY OTHER TERMS SET FORTH IN SOLYS’S PROPOSAL. SUCH TERMS SHALL SOLELY AND EXCLUSIVELY GOVERN THIS SALE

 

 

1.    General

 (a) The offer of SOLYS comprises amongst other Solutions various Opalium branded modular units and combined plants aimed at meeting the needs of customers on municipal water treatment market (the “Municipal Solutions”).

 (b) Any sale by SOLYS of any Municipal Solution and/or related Spare-Parts to any person or company (the “Customer”) shall be governed by both the Veolia Water Technologies SOLYS General Terms for Standard Solutions and Spare-Parts (the “General Terms”) and the present particular terms for sale of Municipal Solutions (the “Particular Terms”).

The present Particular Terms shall apply to any sale of Municipal Solution and/or Spare-Parts. Any placement of an order for Municipal Solution and/or related Spare-Parts implies on the part of the Customer the unreserved acceptance of both the General Terms and the present Particular Terms, recognition of complete comprehension thereof and a disclaimer with regard to its own conditions of purchase and correspondence. Any attempt by a Customer to impose its own terms and conditions, for example by referring to different terms in any order for purchase of Municipal Solution and/or Spare-Parts, shall be invalid, void and of no effect. For the avoidance of doubt the present Particular Terms shall prevail over the General Terms.

 (c) After receipt of any order for purchase of Municipal Solution(s) and/or Spare-Parts from any Customer or on its own initiative, SOLYS will address to Customer a proposal for sale of Municipal Solutions and/or Spare-Parts (“SOLYS Proposal” or the “Proposal”) which will automatically render any previous order from Customer having the same subject matter void and of no legal effect.

Any such Proposal will include but may not be limited to SOLYS’s Project reference number, complete designation of SOLYS and Customer, complete designation of said Solutions, quantities thereof, delivery date thereof and complete list of materials documenting Proposal (including the General Terms and the present Particular Terms). It will be signed by a duly empowered representative of SOLYS.

Upon receipt by SOLYS of a Proposal unreservedly accepted by Customer, such Proposal will be legally binding for both SOLYS and Customer (individually a “Party” and together the “Parties”) and will form in addition to the General terms and the present Particular Terms the Special Terms of the supply contract (the “Contract”) so entered between the Parties. For the avoidance of doubt the Special Terms shall prevail over the General terms and the present Particular Terms and no other condition, unless formally agreed in writing by Solutions Platform, may take precedence over these Special Terms, General terms and Particular Terms.

 (d) The Parties hereby waive any right arising out of any custom or usage in the trade or course of dealing between them which would be contrary to the General terms and/or the Particular Terms. The Parties acknowledge and agree that the United Nations Vienna Convention on Contracts for the International Sale of goods (11 April 1980) is hereby excluded.

 (e) SOLYS reserves the right to modify its General Terms and/or Particular Terms at any time without prior notice. In this case, the applicable terms of business are those on force on the day the order was placed or the Proposal accepted unreservedly.

 

2.  Warranty

In addition to the provisions of the General terms:

(B) IN ADDITION TO ITEM B) OF CLAUSE 10.1 OF THE GENERAL TERMS, THE ENTITLEMENT OF CUSTOMER TO ANY BENEFIT OF THE MUNICIPAL SOLUTIONS WARRANTY SHALL BE SUBJECT TO THE FOLLOWING ADDITIONAL AND CUMULATIVE CONDITIONS:

9. THAT ANY MUNICIPAL SOLUTIONS WARRANTY DOES NOT EXTEND TO ANY CONSUMABLES.

10. THAT WHERE THE ALLEGED DEFECT RELATES TO Metallic equipment protection OF THE MUNICIPAL SOLUTIONS SUCH MUNICIPAL SOLUTIONS WARRANTY (I) COVERS THE EFFECTIVENESS OF THE PROTECTION AGAINST CORROSION/RUSTING FOR A FIVE (5) YEAR PERIOD FROM DELIVERY DATE AND INCLUDES A No7 EFFECTIVENESS GRADE, (II) IS BASED ON A SAMPLE OR A SNAPSHOT WHICH COMPLIES WITH AFNOR STANDARD BASED ON A 10 TO 0 DEGREE OF CORROSION AND (III) APPLIES TO EXTERNAL COATINGS AND INTERNAL LININGS OF THE MUNICIPAL SOLUTIONS, PROVIDED THAT IN ANY EVENT SUCH MUNICIPAL SOLUTIONS WARRANTY DOES NOT COVER NEITHER ANY deterioration caused by fortuitous or accidental events such as: distortions, shocks, friction, leakage or burrs, abnormal temperature increase, corrosive emanation, ETC, NOR any change in the intended purpose of the structure or any modification to the parameters used as the basis for issuing the approval.

 

3.  Supplementary conditions applicable specifically to the sale of Engineered Systems

In addition to the provisions of the General terms:

The following conditions shall apply to the sale of any Engineered System and prevail over the aforementioned conditions in case of conflict therewith. For the herein purposes "Engineered System" designates any Municipal Solution which requires prior technical adaptation or studies to fit certain specific needs of the Customer or any installation or commissioning to be carried out by SOLYS.

1. Purpose and scope of the Proposal for sale of Engineered System(s):

1.1 Any Proposal is established based on the specifications provided by the Customer which must contain all data required for determining the Engineered System(s) characteristics, and in particular for the expected performance, installation and environmental conditions as well as the type and conditions of the tests that shall be carried out by the Customer.

1.2 Unless otherwise stated in the Proposal, the validity period of any Proposal – in particular pricing conditions – is three (3) months from issuance thereof.

1.3 Where a Proposal is not unreservedly accepted by the Customer by the end of validity period thereof, the Proposal and any attachment thereto shall be returned by the Customer to SOLYS within fifteen (15) days from the expiration of such validity period.

2. Technical support during commissioning of Engineered System:

2.1 Unless otherwise stated in the Proposal, Price does not include site installation, Engineered System start‐up or any set of replacement parts.

2.2 Where SOLYS is involved in an Engineered System installation on site, the power supply, ground service equipment, raw materials and any other product of any type required for fulfilling SOLYS's services shall be at the Customer's expense.

2.3 Where SOLYS is delayed or prevented from performing its obligations related to any Engineered System installation on site for reasons beyond its control, the time spent – including the delayed times – shall be borne by the Customer. The same shall apply for any expenses resulting from unjustified travel.

3 Tests

3.1 Tests are to be undertaken in SOLYS manufacturing workshops. If the Customer requests tests other than those provided for in the Proposal or tests on the Engineered System installation site, these tests shall be undertaken at the Customer's expense.

4. Price ‐ Payment conditions:

4.1 Unless otherwise agreed in the Proposal, Prices of Engineered Systems are adjustable by application of any review formula system suitable to the Engineered System and calculated as follows: Reviewed Price(year n) = Price(year 0) x (0.3 + 0.7 (1+3%)^n).

5. Warranty

5.1 Where an Engineered System cannot be returned to SOLYS for Municipal Solutions Warranty purposes, all travel expenses of the SOLYS staff required to repair the Engineered System on‐site shall be borne by the Customer.

5.2 Where an Engineered System incorporates any device or apparatus which have not been manufactured by SOLYS, the scope and duration of the Engineered System Warranty shall be that agreed by the manufacturer of that device or apparatus to SOLYS.

5.3 Where an Engineered System malfunction occurs as a result of materials or components supplied by or imposed by the Customer or as a result of design imposed by the Customer, the Engineered System Warranty shall not apply.