1. SCOPE

1.1. The following terms and conditions (hereinafter referred to as the “General Terms and Conditions”) apply to any sale of machines, engines, equipment and accessories, tools, spare parts and spare parts (hereinafter referred to separately or jointly as the “Equipment“) by Bergerat Monnoyeur SA, as well as to all work carried out by the technicians of Bergerat Monnoyeur S.A., a Belgian company with its registered office at Brusselsesteenweg 340,  3090 Overijse, with company number 0419.725.928 (hereinafter “Bergerat Monnoyeur” or the “Seller”). 

1.2. Any order or request for intervention by the Client implies the unconditional acceptance and obligation to comply with these General Terms and Conditions, which have absolute priority over any other unilateral and contrary document of the Client.

2. FORMATION OF THE CONTRACT

2.1. An offer, purchase order or intervention order shall make the contract with Bergerat Monnoyeur binding and final provided that the purchase order or intervention order in question has been signed by two persons of Bergerat Monnoyeur – at least one of whom is the managing director or the commercial director of the company as published in the Belgian Official Gazette. In addition, the validity of an offer is always limited to the period explicitly stated on the offer in question. In case no fixed term of validity is mentioned, the validity of the offer is in any case limited to a maximum period of one month.

As an exception, the sale of parts via the Caterpillar portal (https://parts.cat.com/) is binding on Bergerat Monnoyeur as soon as the client receives an order number for his order and provided that the sale is legal under the applicable legislation and in particular complies with the conditions of article 13.2 of these General Terms and Conditions.

Regardless of the client’s signature, an offer, purchase order or intervention note is deemed to have been accepted by the client, including these General Terms and Conditions, as soon as Bergerat Monnoyeur begins the performance of its obligations, delivery or repair work at the Client’s request.

2.2. All orders are fixed and final for the Client, unless they are made under the condition precedent of obtaining financing. When a contract is concluded under the condition precedent of obtaining financing, the client must, within 30 days of the order, provide proof by registered letter of the refusal of financing by at least two banks in order to be released from its obligations towards Bergerat Monnoyeur. Otherwise, the condition is deemed to have been fulfilled and the client is definitively bound by the provisions of the purchase contract. Any cancellation request on the part of the client will be evaluated and accepted or refused at the discretion of Bergerat Monnoyeur. This also applies to spare parts sales through the Caterpillar online portal (https://parts.cat.com/).

2.3. Offers are always made on the basis of the information provided by the client, who, by accepting the offer or drawing up the purchase order or intervention note, explicitly guarantees the completeness and correctness of this information. The client is therefore solely responsible for the provision of the necessary information and its accuracy. If, after the conclusion of the contract between the client and Bergerat Monnoyeur, it turns out that the information provided by the client is incomplete, inaccurate or misleading, Bergerat Monnoyeur reserves the right to make a new offer that completely replaces the original. Upon receipt of the new offer, the client has a period of 15 days to submit his agreement with the new offer. Failure to react from the client within this period will be considered as unconditional acceptance of the new offer. In the event of the client’s refusal to accept the new offer, Bergerat Monnoyeur will have a period of two weeks to terminate, with immediate effect and without any right to compensation on the part of the client, the offer or the existing contract that it intended to modify.

2.4. If, during the execution of the works by Bergerat Monnoyeur or during the term of the maintenance contract, significant changes should occur – foreseeable or not – which are likely to change the object and/or scope of the contract with the client (change of scope), Bergerat Monnoyeur reserves the right to propose changes in writing to the contract with the client,  including price changes. Upon receipt of the proposed changes, the client has a period of 15 days to submit his agreement to the proposed changes. Failure to respond from the client within this period will be considered as unconditional acceptance of the proposed changes. In the event of the client’s refusal to accept the proposed changes, Bergerat Monnoyeur will have a period of two weeks to terminate, with immediate effect and without any right to compensation on the part of the client, the offer or the existing contract that it intends to modify.

2.5. The client agrees that Bergerat Monnoyeur may communicate with him electronically. Bergerat Monnoyeur is authorised to send messages and other communications to the client, in particular by e-mail, about any sale of Equipment or work on Equipment by Bergerat Monnoyeur. Bergerat Monnoyeur reserves the right to send messages by other means, such as by post. The client agrees, to the extent permitted by law, not to contest, in the event of a dispute, the acceptability of evidence of an order, notification, communication or message transmitted electronically between the parties.

2.6. If a Member State of the European Union leaves the European Union, or in the event of a change in import or customs duties or the introduction of any other tax, duty, measure or regulation imposed by a national, international or supranational government or by a national, international or supranational body, affecting the price or delivery time of a good or service sold, the Parties agree as follows:

– any customs fees, taxes, excise duties or other levies that would affect the (total) price of the goods or services sold are the responsibility of the client;

– Bergerat Monnoyeur cannot be held responsible for delays in delivery; and

– The Client is not entitled to terminate the following contract due to a change in the delivery time or the (total) price of the goods or services purchased.

3. PRIZES

3.1. Without prejudice to Article 3.2. of these General Terms and Conditions, the price offered depends on the rates charged by Bergerat Monnoyeur at the time the offer was drawn up. The price is deemed to have been accepted by the Client either at the time of signature by the Client of the purchase order/intervention order, or at the time of the start of the work or delivery as specified in point 2.1. §2.

Without prejudice to Article 3.2. of these Terms and Conditions, the price of parts sold on the Caterpillar Online Portal (https://parts.cat.com/) shall be deemed to have been accepted by the client when the client confirms his order on the portal.

3.2. The parties expressly agree that Bergerat Monnoyeur has the right to pass on any price changes made by the manufacturer (in particular, but without limitation, price changes due to an increase in the price of raw materials) in the price to the client. Bergerat Monnoyeur also has the right to propose a price change to the client if the prices were no longer in line with the market at the time of the execution of the contract. If the client does not want to accept the new price, he must notify him within 15 days of receipt of the new price offer, in which case Bergerat Monnoyeur will have a period of two weeks to terminate the offer or the existing contract with immediate effect and without the right to compensation on the part of the client.

3.3. The price indicated by Bergerat Monnoyeur applies for the collection of the Equipment from the warehouse and the delivery or transport of the Equipment is therefore not included in this price. If the parties agree that Bergerat Monnoyeur will be responsible for the delivery and/or transport of the Equipment, such transport will be carried out at the sole expense and risk of the client, unless expressly agreed otherwise.

3.4. The price indicated by Bergerat Monnoyeur is exclusive of taxes.

4. PAYMENT TERMS

4.1. Bergerat Monnoyeur has the right to request a deposit if it deems it necessary. If the Equipment ordered by the client is no longer produced or cannot be delivered by the manufacturer, Bergerat Monnoyeur may cancel the order without the client’s right to compensation or indemnities. In this case, the deposit paid by the client will be refunded, unless the client places a new order for another Equipment.

4.2. In the absence of specific payment terms stipulated in writing, the price is payable in full on the date of receipt of the invoice. Any complaint relating to invoices must, under penalty of forfeiture, be sent by registered mail to Bergerat Monnoyeur within eight days of receipt of the invoice. Any reductions that may apply are explicitly mentioned on the invoice. These discounts are always unique and do not entitle the client to discounts on future orders. The client is not entitled to apply the set-off of debt against amounts owed to Bergerat Monnoyeur and the withholding of any amount by the client is therefore not permitted.

4.3. Any amount not paid by the due date in force shall automatically bear interest at a rate of 1% per month, without prior notice of default or completion of any other formality, and shall also be increased by a fixed indemnity of up to 15% of the unpaid amount, all taxes included, without this fixed indemnity being less than EUR 100. If the client is a consumer, the provisions of the law of 4 May 2023 inserting Book XIX “Consumer debts” into the Code of Economic Law apply. 

4.4. Failure to comply with the terms of payment shall also automatically and without prior notice of default result in future terms being met and shall render all sums due by the client to Bergerat Monnoyeur fully and immediately payable.

4.5. In the event of non-compliance with the terms of payment, Bergerat Monnoyeur also reserves the right to suspend any delivery or provision of services, as well as the performance of any other contract until full payment of the invoices that have fallen due, without prejudice to Bergerat Monnoyeur’s right to claim compensation for the costs incurred and the damage suffered. This suspension of performance following non-compliance with the payment terms can never give the client a right to compensation.

4.6. If the credit insurer withdraws or reduces the buyer’s credit lines, Bergerat Monnoyeur reserves the right to demand from the buyer adequate guarantees for the continuation of its commitments, even after partial performance of the contract. If the client does not meet Bergerat Monnoyeur’s requirements in this regard, the client shall have the right to terminate the contract with immediate effect and to cancel all or part of the order as well as to terminate or suspend any existing maintenance contracts, without any right to compensation for the client. As soon as a maintenance contract is terminated or suspended, the client will be solely responsible for the maintenance concerned.

4.7. “Spare parts” are spare parts or components that have been machined by the manufacturer. For any Spare Part ordered by the Client, a spare part or component used, identical to the Spare Part ordered and produced by the same manufacturer, will be returned by the Client to Bergerat Monnoyeur (hereinafter referred to as the “Consideration“). This return will take place within two weeks of the delivery of the Spare Part.

In addition to the price of the Spare Part ordered, the client will be liable for a sum set by Bergerat Monnoyeur as a guarantee of the return of the Consideration. Regardless of any contractually stipulated payment terms to the contrary, this guarantee must be paid immediately and in full when ordering the Spare Part and at the latest before delivery. Bergerat Monnoyeur will reimburse this sum in the form of a credit note, except in the event of non-compliance with the deadline for the return of the Consideration or if the Consideration does not meet all the required qualities (for example, but without restriction: absence of certain elements, equipment that has not been cleaned or that has been damaged by causes other than normal wear and tear,  etc.), in which case Bergerat Monnoyeur reserves the right to retain this guarantee in whole or in part.

5. TRANSFER OF OWNERSHIP AND RISK

5.1. The Equipment remains the exclusive property of Bergerat Monnoyeur until the full payment of the price by the client, including taxes and interest, if any. Failure to comply with any payment deadline automatically confers on Bergerat Monnoyeur the right to claim the immediate return of the Equipment without further formality.

5.2. The Client expressly agrees that until full payment of the price:

1. a) it may not transfer ownership of the Equipment, whether for consideration or free of charge, or encumber it with any security interest, or withdraw it from the country in which it has been installed;
2. b) he must keep the Equipment in good condition;
3. c) he must take out and keep all necessary and useful insurance, in particular against the following risks: theft, destruction, fire and all other possible forms of damage by his employees and/or third parties. The client must, on first request, present the corresponding certificates to Bergerat Monnoyeur. In the event of a claim concerning the Equipment, Bergerat Monnoyeur will replace the client’s rights vis-à-vis the insurance company and will directly receive the compensation due from this company up to the amount owed by the client to Bergerat Monnoyeur. The client must inform his insurer in writing and have a beneficiary clause signed, if necessary;
4. d) in the event of the sale of one or more marine engines, Bergerat Monnoyeur expressly reserves the right to make a pledge or a maritime mortgage for its own benefit. In this regard, the client undertakes to sign the documents necessary for the creation of these securities and to bear all the costs relating thereto.

5.3. The risks relating to the Equipment are transferred in full to the client as soon as the aforementioned Equipment is made available ex warehouse, which corresponds, unless otherwise specified in writing by Bergerat Monnoyeur, to the date mentioned in the contract. The client must take out and keep all necessary and useful insurance against, among other things, theft, vandalism, fire and all other forms of damage by third parties for the period that the client leaves, after delivery, the Equipment in the workshops or stores of Bergerat Monnoyeur. If Bergerat Monnoyeur is required to transport and deliver to an address specified by the client, such delivery and transport will be at the client’s sole risk.

6. DELIVERY

6.1. Unless otherwise stipulated, delivery will take place in the workshops or stores of Bergerat Monnoyeur. If the parties agree that Bergerat Monnoyeur shall take care of the transport of the Equipment, this will be done exclusively at the client’s expense and risk, even in the case of shipment without postage or shipping against payment.

6.2. The delivery and/or execution times communicated are purely indicative and depend in particular on the availability of the Equipment at the manufacturer. Delays in delivery and/or execution do not give the client the right to terminate and/or modify the terms of the contract, nor any right to compensation. The client’s indemnity clauses are not enforceable against Bergerat Monnoyeur.

6.3. Bergerat Monnoyeur expressly reserves the right to deliver the Equipment in a configuration slightly different from that mentioned in the order form, provided that the discrepancies in question do not imply substantial changes to the characteristics of the Equipment and/or make it unsuitable for its intended use. In addition, the information given in photos, illustrations, drawings and similar documents is of a purely illustrative nature and can never give rise to any recourse by the client.

6.4. The client is required to communicate in writing any reservations regarding apparent defects within two working days of delivery of the Equipment or from the end of the intervention. If the parties agree that Bergerat Monnoyeur is responsible for sending the Equipment, the client or, where applicable, the recipient of the Equipment must inspect the condition of the Equipment before it is sent. In the absence of a written reservation within the time limit, the client is deemed to have approved the Equipment delivered, and to have accepted the work carried out, if applicable. Any complaint relating to delivery or intervention after the stipulated deadline will therefore be inadmissible. The client must, prior to each return of Equipment, obtain the approval of Bergerat Monnoyeur concerning both the return and all the financial and operational terms relating thereto.

6.5. If it is contractually stipulated between the parties that payment for the Equipment by the client depends on the signing of a delivery report, this report will be deemed to have been signed by operation of law if it is not transmitted by the client within 15 days of delivery. This delay is without prejudice to Article 5.3. and can in no way be considered as an extension of the time limits set out in this article concerning the formulation of a reservation.

6.6. If the client does not receive the Equipment within 10 days of Bergerat Monnoyeur’s written notification of the availability of the Equipment, Bergerat Monnoyeur reserves the right to dispose of the Equipment itself, to postpone the order to a later date and to claim compensation for all the costs that this delay entails, including storage costs, or to terminate the contract in accordance with the provisions of Article 14.

7. ASSEMBLY

7.1. Unless otherwise stipulated, the costs of assembly and possible dismantling are not included in the sale price.

7.2. When the client makes the necessary personnel and equipment available to Bergerat Monnoyeur to carry out the assembly or dismantling, the client is solely responsible for the equipment and personnel made available.

In this case, Bergerat Monnoyeur cannot be held responsible for any accidents caused by the client’s staff or equipment during assembly or dismantling.

8. FORCE MAJEURE

8.1. In the event of force majeure, Bergerat Monnoyeur is released from all liability and may either reduce its commitments, terminate or suspend the contract, without being held liable for any compensation.

8.2. The following are considered by the parties as cases of force, without limitation: war, strike, lockdown, lockout, acts of terrorism, epidemic, pandemic, requisitions, machinery breakdown, fire, floods, industrial accidents, rejection of important elements during production, delay or interruption of transport, difficulties in the supply of raw materials, materials and energy, restrictions or prescriptions imposed by the authorities or any other cause resulting in total or partial unemployment for Bergerat Monnoyeur and/or its suppliers.

9. WARRANTY

9.1 General: In the matter of new equipment, Bergerat Monnoyeur grants a guarantee against any hidden defect in full compliance with article 1641 et seq. of the Civil Code. However, Bergerat Monnoyeur’s liability is limited to direct damage, to the express exclusion of any form of indirect and/or immaterial damage such as loss of profit, lost opportunity, but this list is not exhaustive. The client has a period of fifteen (15) working days from the discovery of the latent defect to report its existence to Bergerat Monnoyeur by registered letter. The aforementioned warranty does not apply to used equipment that is still sold AS IS, in the condition in which it is upon the sale and that the client knows. Unless previously agreed in writing with Bergerat Monnoyeur, the warranty applies exclusively to Belgian territory and during normal working hours. The client can only invoke the warranty if he has paid the full amount of the original invoice.

9.2 Warranty for parts, genuine parts and interventions

1. a) Scope: The warranty covers all defects in material or workmanship, as well as each intervention, but only during the following warranty period:

– 12 months for machinery, engines, capital goods and accessories from the date of delivery. Please see our “factory warranty” document;

– 12 months for spare parts, spare parts and tools, from their sale and 3 months for interventions from the day they are carried out. Please see our “Limited Warranty on Sold Replacement Parts and Paid Repairs” document.

The repair or replacement of spare parts carried out under the warranty cannot under any circumstances give rise to an extension of the warranty period for the other components of the Equipment. The warranty only covers the costs of repair or replacement and the amount of the intervention can never be higher than the price paid by the client for the equipment or the intervention. In no case may it give rise to the payment of any other compensation. The warranty does not cover the cost of transporting the Equipment or defective parts, nor the costs related to the return of the Equipment or repaired or replaced parts, nor the travel and accommodation costs of Bergerat Monnoyeur technicians.

(b) Terms: The services provided due to the application of the warranty are carried out in the Bergerat Monnoyeur workshops after the client has invoked the warranty and has returned to Bergerat Monnoyeur the Equipment that he considers to be defective. The warranty can only be granted after Bergerat Monnoyeur has examined the Equipment or parts and provided that the latter has acknowledged the defect. The choice between repair or replacement under warranty as well as the method of execution is the exclusive responsibility of Bergerat Monnoyeur. Any Equipment or spare parts replaced on the basis of these provisions become the property of Bergerat Monnoyeur. Under no circumstances can the period of repair, exchange, shutdown of the Equipment or the resulting damage give rise to the payment of compensation by Bergerat Monnoyeur.

1. c) Exclusions: the guarantee is excluded in the following cases:

– improper use or use not in accordance with the manufacturer’s instructions for use, by the client, a subordinate or a third party who may or may not have obtained the client’s authorization in this regard;

– damage and wear resulting from a modification or special assembly, correct or not, of the Equipment, except when this modification or assembly has been carried out by Bergerat Monnoyeur.

– damage and wear resulting from repairs or replacement of spare parts carried out on the Equipment by the client and/or third parties who have not been mandated to do so by Bergerat Monnoyeur;

– damage and wear resulting from fortuitous events or force majeure or from the accumulation of causes;

– normal wear and tear, breakage due to misuse, vandalism, negligence, lack of supervision or maintenance;

– use of the Equipment in conditions that do not comply with the manufacturer’s and/or Bergerat Monnoyeur’s recommendations, as noted in particular in the Use and Maintenance Manual;

– Tires, batteries, accessories, cab glass, body, headlights, windshield wipers and chain guide.

Warranties apply only if the Equipment has been properly maintained and repaired and if the genuine Caterpillar parts were purchased from an official Caterpillar dealer.

10. LIABILITY

10.1. Bergerat Monnoyeur cannot be held liable in the following cases: (i) damage resulting from the use of the Equipment in conditions that do not comply with the manufacturer’s and/or Bergerat Monnoyeur’s recommendations, (ii) faulty maintenance or malfunctioning operation, (iii) an incident attributable to the client or a third party or (iv) in the event of force majeure.

10.2. In addition, in view of Article 5.89 of the Civil Code, except in the case of intentional fault and/or fault affecting the life or physical integrity of a person, Bergerat Monnoyeur’s liability is:

1. limited to proven direct material damage directly related to a fault on the part of Bergerat Monnoyeur, within the limits provided for in Articles 10.3 and 10.4; and
2. excluded in the event of gross negligence by Bergerat Monnoyeur.

The conditions of the previous paragraph also apply to all persons for whom Bergerat Monnoyeur is responsible.

10.3. In the event of direct material damage, Bergerat Monnoyeur’s liability will be limited per claim to a maximum amount corresponding to the value of the Equipment that is the subject of the order or intervention as mentioned in the order form. The client guarantees Bergerat Monnoyeur against any action, in particular the actions of third parties, exceeding the maximum amount mentioned above.

10.4. Bergerat Monnoyeur may never be held liable for indirect and/or immaterial damage caused to the client, to the client’s staff or to third parties by the performance of its services, such as, but not limited to: loss of profit, loss of clients, loss of operating profit. The client, as well as its insurers, waive any recourse against Bergerat Monnoyeur with a view to obtaining compensation for the financial consequences of such damage and indemnify Bergerat Monnoyeur and its insurers against any action brought by third parties concerning the aforementioned damage.

11. USE OF TECHNICAL DATA

11.1. The client is informed that the Equipment he acquires is likely to be equipped with a module allowing Bergerat Monnoyeur and all entities involved in the provision of the services contracted by the client (in particular the companies of the Caterpillar group) to collect technical data relating to the machine.  Bergerat Monnoyeur may use this data for the purposes of providing and optimising its service, analysing the quality of service provided and the operation of the machines. It may be transferred outside the European Union for these purposes. The fact that Bergerat Monnoyeur has access to this data does not create any right for the client, and in particular does not give the client the right to benefit from certain Bergerat Monnoyeur services based on this data.

This machine data does not allow Bergerat Monnoyeur to identify, even indirectly, the person(s) who use the Equipment and therefore does not constitute, for Bergerat Monnoyeur, personal data. If, on the other hand, these data allow the client to identify, even indirectly, a natural person, it is the client’s responsibility to inform the users of each machine concerned of the collection of the data and to carry out the appropriate formalities referred to in the General Data Protection Regulation of 27 April 2016. If the client does not wish this technical data to be collected, it is the client’s responsibility to inform Bergerat Monnoyeur by ticking the box provided for this purpose on the front of the Order Form.

11.2. The intellectual property of the documents, concepts, drawings, software and all other possible technical data in any form whatsoever which are transmitted within the framework of the contract by Bergerat Monnoyeur to the client remain at all times with Bergerat Monnoyeur and is therefore not transferred to the client, unless a clause to the contrary is expressly agreed in a contract drawn up specifically for this purpose. The client therefore has no ownership rights over this data and is prohibited from processing, modifying, marketing or adapting the data in question. The relevant Bergerat Monnoyeur data must also be treated as confidential data and may not be disclosed by the client in any way without the prior written consent of Bergerat Monnoyeur. All of the foregoing rules also apply to the intellectual property rights of the Caterpillar Group, and Client agrees not to take any action that violates such rights.

12. PROTECTION OF PERSONAL DATA

12.1. Bergerat Monnoyeur is the data controller of the personal data collected on the Order Form. This data is limited to the contact information given during the order by the client, namely: name, surname, job title, email address, postal address, telephone number, etc. and are processed in order to perform the contract and to improve Bergerat Monnoyeur’s services. This processing is based on Articles 6.1, b) (contractual necessity) and f) (legitimate interest: evaluation and improvement of services) of the General Data Protection Regulation of 27 April 2016 (hereinafter “GDPR“).

12.2. Personal data may be transferred to other entities of the MONNOYEUR group and to service providers acting on their behalf who are located in Belgium and/or within the European Union. In the event that the personal data is transferred to a country outside the EU, in particular to the manufacturer CATERPILLAR INC. and its service providers, this transfer will be carried out in accordance with all appropriate safeguards, in particular on the basis of the standard contractual clauses adopted by the European Commission governing the transfer of personal data outside the EU. 

12.3. The data will be kept for the entire duration of the performance of the contract concluded with the client and for the period necessary to enable Bergerat Monnoyeur to provide the legal or conventional guarantee and to comply with its accounting and tax obligations. This period will be extended for the management of any dispute with the Client. 

12.4. The Data Protection Officer can be reached at the email address dpo@monnoyeur.com. 

12.5. Unless there is a legitimate interest on the part of Bergerat Monnoyeur, the data is only processed for direct marketing purposes if the Client has consented to this by ticking the box provided for this purpose on the Order Form. The client (or signatory) may withdraw their consent at any time and object to the processing of their data for direct marketing by sending an email to dpo@monnoyeur.com or a registered letter to Bergerat Monnoyeur SA, Brusselsesteenweg 340, 3090 Overijse. 

12.6. The client (or signatory) has the right to request access to his or her personal data, rectification of data that is inaccurate or incomplete, erasure of data under the conditions set out in Article 17 of the GDPR (right to be forgotten) or restriction of processing under the conditions set out in Article 18 of the GDPR. The client may also object to the processing of his personal data under the conditions set out in Article 21 of the GDPR and has the right to request a copy of his data to transmit it to another controller (right to data portability). Any request should be sent by email to the address dpo@monnoyeur.com . The client (or signatory) has the right to lodge a complaint with a supervisory authority. In Belgium, the supervisory authority is the Commission for the Protection of Privacy (“Data Protection Authority” as of 25 May 2018).

12.7. The client also undertakes to comply with the provisions of the legislation on the protection of privacy and the protection of personal data.

13. USE OF THE MATERIAL IN THE EEA

13.1. The client strictly undertakes to ensure that the Equipment sold by Bergerat Monnoyeur is used exclusively on the territory of the EEA (European Union and Iceland, Liechtenstein, Norway) and Switzerland for a minimum period of 12 months from delivery and provided that the Equipment has not reached 1000 hours of use. In the event of non-compliance, the client undertakes, at the first request of Bergerat Monnoyeur, to pay a fixed and irreducible amount equal to 30% of the purchase price of the Equipment, excluding taxes.

13.2 The Client also undertakes to comply not only with the European export control regulations, but also with the export control regulations issued by the US authorities. In particular, the client will not deliver any material, either directly or indirectly, to the final destination of Belarus, Myanmar, Iran, Russia, Cuba, Syria, Sudan or North Korea.

14. TERMINATION

14.1. Bergerat Monnoyeur expressly reserves the right to terminate the contract in the following cases:

– In the event of non-compliance with one of the obligations by the client and in particular in the event of non-payment by the client of the price or a payment deadline, at the end of a period of 8 days from the sending of the formal notice by registered mail;

– In the event of non-collection of the Equipment ordered by the client within 10 days of the written notification that the Equipment was at its disposal;

– When the activities cannot be carried out in whole or in part and this impossibility is attributable to the client.

14.2. Without prejudice to the other rights and remedies of Bergerat Monnoyeur, the termination of the contract by Bergerat Monnoyeur in the cases listed in Article 14.1, as well as the unilateral termination of the contract by the client, will in any case imply the following consequences:

– the equipment must be returned immediately to Bergerat Monnoyeur. In the event of a delay in this return, the client will owe Bergerat Monnoyeur an amount equal to 0.50% of the purchase price of the Equipment;

– a termination indemnity, set at a flat rate of 30% of the total order or the price of the intervention, will be due by the client, without prejudice to Bergerat Monnoyeur’s right to claim the amount of the total repair as well as the damage that it has actually suffered if the latter is greater than the termination indemnity.

14.3. Bergerat Monnoyeur also reserves the right to terminate the contract at any time with 6 months’ notice, or with immediate effect if any of the following events occur: death, incapacity, bankruptcy, judicial reorganisation, liquidation or force majeure.

14.4. The Client may not claim any compensation for the termination of the contract for any of the aforementioned reasons.

15. PROHIBITION ON RECRUITING STAFF

The client is prohibited from recruiting Bergerat Monnoyeur staff in any way whatsoever, directly or indirectly, as employees or as self-employed persons, for a period of one year from the end of the contract or from the end of the execution of the last order. In the event of non-compliance with this provision, the client will owe Bergerat Monnoyeur compensation equal to the amount of one year’s gross remuneration of the member of staff concerned.

16. ASSIGNMENT – SUBCONTRACTING

The parties are prohibited from assigning their rights to third parties, unless they have the express prior authorization of the other party. Unless otherwise specified, Bergerat Monnoyeur may call on one or more subcontractors for all or part of the mission.

17. RECORDING OF ON-SITE ATTENDANCE

For sites where work is carried out with a total budget equal to or greater than €500,000 (excluding VAT), all workers, subcontractors and workers of a Bergerat Monnoyeur subcontractor, whether self-employed or not, will be required to register in accordance with the provisions of the law of 8 December 2013 (Belgian Official Gazette of 20 December 2013). Any co-contractor of Bergerat Monnoyeur undertakes to comply with this obligation and will hold Bergerat Monnoyeur harmless from any amount that may be charged to it as a result of any breach.

18. INSURANCE

Notwithstanding article 5.2.c) the client has the option of taking out insurance with Bergerat Monnoyeur to cover the various risks (machine breakdown, repair, etc.).  The Equipment is then insured by Bergerat Monnoyeur, at the client’s expense.  The general terms and conditions are available to the client on request.  Any risk for which the client is responsible and which is not covered by the insurance will remain the responsibility of the client, as well as the deductible provided by the insurer.  In the event that the insurer increases premiums or terminates the policy, the client will have no recourse against Bergerat Monnoyeur, which assumes no liability in this regard.

19. EXCLUSIONS 

The parties agree that the theory of unforeseeability (“théorie de l’imprévision”/”imprévisieleer”) and Articles 5.74 and 5.90, paragraph 2 of the Civil Code are expressly excluded from these General Terms and Conditions. 

Contrary to the previous paragraph, for any contract concerning ENERIA Equipment and ENERIA Services, the theory of unforeseeability and Article 5.74 of the Civil Code are applicable. “ENERIA Equipment and ENERIA Services” means all turnkey energy solutions (including, without limitation, generator set [diesel, gas, marine, hydrogen], inverter, industrial or marine engine, photovoltaic panel, solar thermal panel, biomass boiler system, battery, etc.), equipment and accessories, tools, spare parts and spare parts, as well as all work carried out by the Seller’s technicians on the aforementioned solutions. 

20. APPLICABLE LAW – DISPUTES

Belgian law applies to relations between parties. The parties undertake to settle amicably all disputes that may arise between them in the performance of their contract. If this proves impossible, only the courts of the district of Brussels are competent to decide the dispute.

Version November 2023