1. SCOPE
1.1 These General Terms and Conditions of Purchase (hereinafter referred to as the “Purchase Terms”) are affixed to and incorporated into any purchase order (the “Purchase Order”) placed by Evernex International and any of its direct and indirect subsidiaries (together “Evernex”) with the supplier (the “Supplier”) for the supply of products (“Products”) and/or services (“Services”). Evernex and the Supplier are hereinafter referred to individually as a “Party” and collectively as the “Parties”. For any purchase of Products and/or Services by Evernex these Purchase Terms and the incorporated Purchase Order form together and are defined as the “Order”.
1.2 The Order shall apply and shall be part of the contract between Evernex and the Supplier. The contract may be in the form of the Order only or of a specific agreement such as a supplier service contract (hereafter “Supplier Service Contract”) (including its appendixes like any Scope of work (“Scope of Work” or “SOW”), schedules and attachments thereto) or any other document relating to the supply of Products and/or Services as agreed between the Parties (the “Contract”). The Order or the Contract shall constitute the sole and exclusive agreement between Evernex and the Supplier for the provision of Products and/or Services referred in the Contract. No other document, including the Supplier’s proposal, quotation, acknowledgment form, or general terms and conditions, shall form part of the Contract unless specifically agreed to in writing by the Parties.
2. TERMS OF PERFORMANCE OF THE ORDER AND/OR THE CONTRACT
2.1 The Order shall be provided on Evernex letterhead, using a numbered and dated format.
2.2 Acceptance of the Order by the Supplier results from: (1) the sending to Evernex of the acknowledgement of receipt of the Order dated and signed (2) Supplier’s failure to respond within eight (8) calendar days following the sending of the Order; (3) the commencement by the Supplier of the supply of any of the Services and/or Products; or (4) acceptance by the Supplier of a payment from Evernex for the ordered Products and/or Services.
2.3 The Supplier acknowledges that the acceptance of the Order or the signing of the Contract constitutes unreserved acceptance of the Purchase Terms, which it confirms having read, and express exclusion of the Supplier’s general terms and conditions of sales and/or services that may be attached to or referenced in its offer, its acceptance of the Order or its invoices.
2.4 The Supplier undertakes to perform the Contract in accordance with any contractual documents and in compliance with professional practices, regulations and standards in force. The Supplier is subject to a strict liability obligation (obligation de résultat) with respect to the delivery of the Products and/or Services in accordance with the contractual documents and when applicable, within the binding deadlines and/or Service Level Agreement. The Supplier understands and accepts that its ability to comply with such deadlines and/or any applicable SLA constitutes a determining condition for Evernex’ choice of the Supplier, without which Evernex would not have selected the Supplier and/or would have negotiated terms and conditions, in particular pricing conditions, different from those negotiated and according to any other terms set out in such contractual documents.
2.5 Evernex does not make any minimum order or turnover commitments. Neither the Order nor the Contract contain any guarantee of volume of Products and/or Services to supply, in favor of the Supplier.
2.6 The Supplier, in its capacity as a professional, has an obligation to advise and warn Evernex as to the suitability of the Products and/or Services for the needs expressed by Evernex and the consequences of the various decisions that Evernex may be required to make. Additionally, the Supplier has an obligation to alert Evernex when it detects risks of any kind whatsoever in the performance of the Order and/or the Contract. The Supplier has also a duty to inform Evernex of potential changes in laws, regulations, standards, directives and practices applicable or likely to be applicable to the Order and/or the Contract, which may have an impact on the use of the Products and/or Services and/or the execution of the current Order and/or the Contract. The Supplier undertakes to alert Evernex immediately if it notes an anomaly related to the Products and/or Services, in particular related to the manufacturing process of the Products.
2.7. The Parties decide to exclude the application of Article 1195 of the French Civil Code (or any similar Article under the applicable law, the purpose of which would be to allow modification or termination, including judicial termination, in the event of a change in circumstances unforeseeable at the time of the conclusion of the contract making performance excessively costly), each Party managing itself the consequences of any change in circumstances that may occur during the performance of the Order and/or the Contract.
2.8 Evernex reserves the right to change the Purchase Terms’ provisions at any time in Evernex’ sole discretion. Please check these terms regularly for changes on Evernex website. The version of the Purchase Terms applicable to a Purchase Order will be the one applicable at the date of acceptance of the Order or signature of the Contract.
3. ORDER OF PRECEDENCE
The terms of the Order shall prevail over any document being a part of the Contract and more specifically over any terms of such documents conflicting with the Order. In the event of a conflict between the terms of the documents stipulated in Article 1.2 above, the following order of precedence prevails: Purchase Order, Work Order, Supplier Service Contract, SOW, annexes to the Supplier Service Contract, these Purchase Terms.
4. PRICES
Supplier shall supply to Evernex the Products and/or Services at the prices specified in the Order and/or Contract. The prices and the total amount indicated on the Order and/or the Contract are firm and cannot be revised. They are net, exclusive of tax for EU countries. They are expressed in the currency specified in the Order and/or Contract. Prices shall not be increased unless mutually agreed by the Parties. Supplier shall offer the unit prices and appropriate terms of this Order and/or Contract to any other affiliates of Evernex, including direct and indirect subsidiaries, for the same or equivalent items provided that such does not violate applicable laws. Supplier warrants that the prices charged for the Products and Services in this and/or Contract are as low as the lowest prices charged by Supplier to any of its customers purchasing similar items in similar or smaller quantities.
Additional Products and/or Services beyond the scope of the Order or Contract may be requested by Evernex to Supplier and will be subject to a separate quotation and a separate agreement.
5. TAXES
Supplier is responsible for and will pay all applicable taxes, charges, fees, levies, or other assessment imposed or collected by any governmental entity worldwide on sales, use, transfer or provision of Products and/or Services. Furthermore, Supplier will pay any value added tax or any other duties or fees related to any payment by Evernex to Supplier for Products and/or Services provided to Evernex under the Order or the Contract.
6. INVOICES AND PAYMENT TERMS
6.1. The Supplier shall issue an invoice in accordance with the applicable laws and regulations.
6.2. The Supplier shall therefore hold Evernex harmless against any action resulting from a breach attributable to the Supplier in connection with non-compliance with the applicable legal provisions on invoicing. The Supplier shall therefore fully compensate Evernex for any harmful consequences related to this breach (reimbursement of a fine, procedural costs, fees of Evernex’ counsel, etc.).
Supplier shall provide the required information enabling the issuance of the Order and/or Contract and in particular:
− any bank details provided by the Supplier to Evernex shall be certified by the Supplier’s bank.
− Local chamber of commerce registration certificate
− Evernex Supplier Code of conduct agreed and signed
− Evernex Supplier Creation form
− Evernex form of Supplier due diligence questionnaire
6.3. “Proper Invoice” means an invoice that (a) has the Purchaser Order number or the relevant Contract number mentioned on the invoice; (b) has been submitted to Evernex at the following email addresses:
− partners.france.invoices@evernex.com (Services Suppliers)
− transport.france.invoices@evernex.com (Transport suppliers)
− accounting@evernex.com (Suppliers)
− France.invoices@evernex.com (Indirect suppliers)
within thirty (30) days and no later than 90 days after the Supplier has performed the Services or delivered the Products, (c) is not dated prior to the date when the Products and/or Services reflected in such invoice are received by Evernex.
6.4. Subject to the proper delivery and/or performance of the Products and/or Services, invoices are payable within forty-five (45) days end of the month after the date of receipt of the Proper Invoice from Supplier. The payment terms are also indicated on the Order and/or the Contract. Any delay in payment not related to a total or partial non-performance of its obligations by the Supplier or to the implementation by Evernex of the offset mechanism, will give rise to the payment of penalties at a rate equal to three times the legal interest rate.
6.5 The Supplier agrees that all of its accounts with Evernex may be managed on a net-book-value basis and that Evernex may, after having informed the Supplier, offset debits and credits, including costs incurred to protect or enforce its rights relating to an Order and/or the Contract.
7. TERM AND TERMINATION
7.1 Term
An Order will remain in effect until all Services, Product warranties, or licenses have expired or been terminated.
7.2 Termination for convenience by Evernex
Evernex may terminate for its convenience, and without cause, with 30-day prior notice, all or any part of an Order or the Contract at any time by written notice to Supplier. In such cases, the Supplier will be paid on a prorated basis for the Products and/or Services provided up to the date of termination.
7.3 Termination for breach by Supplier
In the event of a breach by the Supplier of any of its obligations defined by the Purchase Terms, and following a notice sent by Evernex by registered letter with acknowledgement of receipt or by any other internationally recognized courier that has remained unremedied for a duration of fourteen (14) calendar days from its receipt, Evernex may terminate, by operation of law, the Order and/or the Contract, in whole or in part. Consequently, Evernex may enter into new Orders or a new Contract with another Supplier of its choice for the delivery and/or performance of the supplied Products and/or Services. The Supplier shall then bear any additional costs incurred as a result of this change. As an exception to the foregoing, Evernex may terminate the Order and/or the Contract with immediate effect in the event of a breach of Articles 14 (Confidentiality), 16 (Data protection), 17 (Compliance with Laws), 19 (Ethics – Anti Corruption) and of the Purchase Terms.
Notwithstanding anything to the contrary in this Order or Contract, in the event that: (a) Supplier fails to comply with this Order or Contract; (b) Supplier fails to deliver Products and/or Services by the delivery date; (c) Supplier fails to maintain insurance required by Evernex; (d) Supplier fails to comply with any of Evernex’s procedures and regulations; or (e) Supplier makes an assignment for the benefit of its creditors, a receiver is appointed for Supplier, or any bankruptcy or insolvency proceedings are instituted by or against Supplier, Evernex may (x) consider this as a breach of contract by Supplier, or (y) terminate this Contract in whole or in part, without any liability or obligations to Supplier. Evernex’s rights and remedies stated herein are not exclusive and are in addition to any other rights and remedies at law or in equity.
7.4 Consequences of Termination
In the event of termination of contractual relations, for any reason whatsoever, the Supplier will promptly return to Evernex all the spare parts owned by Evernex and provided under the Order or Contract, as well as any documentation including any confidential information. Any obligation which, either expressly or by its very nature, must remain in force after the termination of the Order or Contract (Confidentiality, Data Protection, Liability, Records and Audits), will continue to have effect under its own terms and conditions.
8. REPRESENTATIONS AND WARRANTIES
8.1 In addition to any other express or implied warranties, Supplier represents and warrants during the term of this Order or Contract: (a) Supplier has full corporate power and authority to enter into this Order or Contract and to carry out the provisions hereof and the person entering into this Order or Contract on behalf of Supplier is authorized to do so; (b) Supplier and the Products and/or Services comply with all applicable laws, ordinances, administrative orders, rules and regulations; (c) Order or the Contract and the Products and/or Services do not breach any other agreement to which Supplier is a party or bound; (d) Supplier will, at the time of delivery of any Product and/or Services, have all the rights and licenses in such Product and/or Service necessary to allow Evernex to own, use and/or receive such Products and/or Services without additional restrictions or charges; (e) Products and/or Services do not infringe or misappropriate any copyright, patent, trademark, trade secret, or any other intellectual property rights of any third party; (f) Products and/or Services will conform to Supplier’s published specifications and documentation and will be free from defects in design, materials and workmanship including, without limitation, cosmetic defects, for a period of thirty-six (36) months from the date of delivery to Evernex; (g) Services performed by Supplier under this Order or Contract will be performed in a good, professional and workmanlike manner in accordance with applicable laws and industry standards; (h) Supplier and its employees and agents will be properly licensed certified or accredited and have sufficient skills, knowledge, and training to perform the Services and produce the Products. Supplier shall promptly notify Evernex of any fact, event or circumstance that would make any representation or warranty provided by Supplier untrue or inaccurate in any respect.
8.2 In the performance of Services, the Supplier shall use all means that may be used to maintain or restore the proper functioning of the IT equipment. Such means include labor, testing appliances, tools and, if necessary, use of spare parts provided by Evernex whether new or equivalent to replace the IT equipment’s defective parts, modification of the documentation or any other mean that may prevent the repetition of the default.
8.3 Services of corrective maintenance are performed within the time limits defined in the scope of work, depending on the options chosen by Evernex and the seriousness of the default.
9. SERVICE LEVEL AGREEMENT AND PENALTIES
9.1 Services detailed in the Order or Contract are in any event performed in compliance with provisions relating to quality of service (“Service Level Agreement” or “SLA”), set forth in the applicable Purchase Order or Contract (such as Scope of Work) regarding quality, performance, availability, problem resolution, and reporting times) to ensure continuity and security of service. The Supplier is responsible for determining and implementing the necessary means to comply with its commitments.
9.2 Supplier commits to collaborate with Evernex and/or Evernex’ end-customer in total transparency and good faith and Evernex commits to provide the Supplier with all necessary information for the analysis of the problem, its remediation and qualification, as well as all data.
9.3 In case of any delays against the SLA above mentioned, the Supplier shall pay to Evernex the agreed contractual performance penalties set out in the applicable Order or Contract.
9.4 The Supplier is held to a strict liability obligation (obligation de résultat) in respect of its engagements with Evernex and its customers. As such, Evernex may apply penalties for delays or numerous unsuccessful technical interventions for which Evernex is not responsible, as defined in the SOW.
10. SUBCONTRACTING, ASSIGNMENT AND CHANGE OF CONTROL
10.1. The Order and/or the Contract are concluded on an intuitu personae basis with the Supplier due to its human and technical skills.
10.2. With the exception of transportation services in connection with the provision of Products and/or Services, the Supplier cannot subcontract, assign or transfer all or part of the Order and/or the Contract to a third party without Evernex’s prior written consent.
10.3. The Supplier shall, at the time of acceptance of the Order and/or the conclusion of the Contract and throughout the performance of the Order and/or the Contract, have each subcontractor accepted by Evernex and have the payment terms of each subcontract agreed by Evernex. Upon presentation of a subcontractor, Evernex reserves its right to reject any subcontractor without the need to justify its decision. The Supplier remains fully responsible for the performance of the Order and/or the Contract and remains solely liable to Evernex. A subcontractor cannot itself subcontract all or part of the Order and/or the Contract.
10.4. In the event of a change of direct or indirect control of the Supplier, the Supplier shall inform Evernex without delay, by providing Evernex with the identity of the new shareholders and by requesting the prior written consent of Evernex to continue their business relationship.
10.5 In the cases referred to in Articles 10.1 to 10.4 of the Purchase Terms, and in the event that Evernex decides not to give its consent to the Supplier, Evernex shall remain free to terminate, by operation of law and without prior notice, the Order and/or the Contract, on the sole condition that the present clause is invoked.
11. LIABILITY- INDEMNIFICATION
11.1 Indemnification Obligations
Supplier shall defend, indemnify and hold harmless Evernex and all its respective directors, officers, employees, agents, contractors, consultants, suppliers, customers and distributors (“Indemnitees”) from and against any and all claims, actions, demands, legal proceedings, liabilities, damages, losses, judgments, authorized settlements, costs and expenses as incurred, including without limitation, attorney’s fees, arising out of or in connection with any alleged or actual: (a) infringement by Supplier of the Products or Services, of any intellectual property rights of any third party; (b) bodily injury (including death) or damage to real or tangible personal property; (c) breach of any of Supplier ’s representations, warranties and covenants contained in this Order or Contract; (d) acts or omissions of Supplier; (e) acts or omissions that result in any violation by Supplier, by the Products and/or Services or by Evernex of any governmental laws, rules, ordinances or regulations; (f) failure to perform or comply with this Order or Contract; (g) breach of the Data protection obligations set forth in Article 16 or the Confidentiality obligations set forth in Article 14; and (h) claim by or on behalf of Supplier’s subcontractors, suppliers, employees or agents (each of the above, a “Claim”). Supplier’s indemnification obligations in this Article shall not extend to the percentage of a claimant’s Claims attributable to the Indemnitee’s negligence or other fault, breach of contract or warranty, or to strict liability imposed upon Indemnitee as a matter of law.
11.2 Claims and Cooperation.
In the event of any Claim, Evernex shall: (a) notify Supplier; (b) tender to Supplier (i) sole control of the defense to the extent the Claim applies to the Products and/or Services and (ii) defense of the Claim to the extent the Claim relates to Supplier’s conduct, but Evernex retains the right, at its option, to participate in such defense at Supplier’s expense; and (d) not settle any such Claim without Supplier’s prior written consent which Supplier shall not unreasonably withhold. Supplier shall keep Evernex informed at all times as to the status of Supplier’s efforts and consult with Evernex (or Evernex’s counsel) concerning Supplier’s efforts. Upon Evernex’s request, Supplier shall disclose to Evernex the terms of any settlement of a Claim involving Products or Services. Notwithstanding the foregoing, in the event that Supplier fails to respond to a tender within ten (10) business days or Supplier refuses to accept tender, then Evernex may proceed to settle or otherwise defend the Claim as Evernex deems appropriate. In such instance, Supplier remains fully responsible for all costs and expenses incurred by Evernex, including any amounts awarded by a court or other judicial body. Without limiting other remedies available to Evernex, including joinder of Supplier in the underlying action, Evernex may immediately offset expenses as they are incurred from amounts payable to Supplier.
11.3. The Supplier shall be fully liable to Evernex and third parties for any non-performance or improper performance of the Order and/or the Contract, and in particular for defects in the design, manufacture, completion, operation or performance of the Products and/or Services, and the Supplier shall be liable for all damages, including operating loss and loss of profit (consecutive or not) and any reputational damage, that it may cause to Evernex or to any third party by its own act or that of its agents. The Supplier undertakes, prior to the acceptance of the Order and/or the conclusion of the Contract, to ensure the suitability of the Products and/or Services to Evernex’ needs and the conditions under which the delivery of the Products and/or the performance of the Services may be carried out.
11.4 Consequently, the Supplier shall hold Evernex harmless against any action or conviction based on the existence of a defect affecting the supply of Products and/or Services, on their non-compliance and more generally against any action that may be brought against it and resulting from the failure of the Supplier to fulfil one of its contractual obligations under the Order and/or the Contract. In this respect, the Supplier, who will be informed in advance, will bear all costs and fees related to the defense of Evernex, who will remain free to choose its counsel, as well as any sentence for damages or the payment of any compensation resulting from a settlement.
11.5. The assistance that Evernex may provide to the Supplier for the delivery and/or the performance of the supply of the Products and/or Services shall not be considered as an acceptance of the quality of the Products and/or Services for which the Supplier alone is responsible.
12. LIMITATION OF LIABILITY
Except for Supplier’s indemnification obligations and liabilities and/or Supplier’s confidentiality and non-disclosure obligations set forth in Article 14, and any Data Protection obligations set forth in Article 16, NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES UNDER ANY PART OF THIS ORDER OR CONTRACT, EVEN IF ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS ORDER OR CONTRACT.
13. INSURANCE
13.1. The Supplier undertakes, at Supplier’s cost, to take out and maintain valid insurance policies from reputable insurance companies to cover the risks and liability incumbent upon it in connection with the execution of the Order and/or the Contract, towards its employees, Evernex, and third parties, in accordance with the applicable law and its contractual obligations, for Supplier’s indemnification obligations.
13.2. The Supplier shall provide valid a civil liability insurance certificate upon Evernex’s request.
14. CONFIDENTIALITY
14.1 Both the Supplier and Evernex acknowledge that any information, data, and business documentation of any nature, methods, know-how, source codes, manufacturing processes used or implemented by the Supplier or Evernex under the Contract are and shall remain each Party’s exclusive property and shall be kept strictly confidential.
14.2 As a consequence, each Party commits not to disclose such information, data, and documentation to any third party, and/or not to exploit them for its own account or on behalf of any third party without the other Party’s prior and express consent. Any source codes and manufacturing processes used or introduced by the Supplier or Evernex under the Contract are and shall remain the exclusive property of the respective Party or any licensing third party and shall be kept strictly confidential.
14.3 Each Party undertakes to return to the other at the latter’s first request, all information, data, and documentation received from the other for the purpose of the Contract.
14.4 Each Party shall cause its commercial partners, employees, or agents to abide by a confidentiality obligation equivalent to the one set forth in the Contract and shall hold harmless and indemnify the other for any breach of such confidentiality obligation by commercial partners, employees, or agents.
14.5 This confidentiality obligation shall survive termination of contractual relationships between the Parties and shall bind both Parties until the earliest date between (i) five (5) years after the termination of the Contract, or (ii) the date when related information, data, and/or documents fall into the public domain.
15. FORCE MAJEURE
15.1 Each of the Parties shall not be considered as defaulting when performance of its obligations has been delayed, disrupted or prevented by a case of Force Majeure out of its reasonable control, its suppliers or service providers (“Force Majeure”).
15.2 Shall notably be considered as events of Force Majeure excusing non-performance of its obligations: any cause beyond its control including, without limitation, fire, strikes, floods, epidemics, natural disasters, quarantine restrictions, wars, transport disruption, shortage of labor, raw materials or means of production, provided that the Party affected by such event has taken all reasonable precautions, due care and reasonable alternative measures in order to carry out the terms and conditions of the Contract and has informed the other Party as soon as possible about the occurrence of such an event. Upon the occurrence of a Force Majeure event, the obligations of the Contract are suspended. If the Force Majeure event continues for more than ninety (90) days, either Party may choose to terminate the Contract by registered letter with acknowledgement of receipt requested sent to the other Party.
16. DATA PROTECTION
16.1 Each Party undertakes to comply with all the obligations of the applicable data protection regulation for the processing that they respectively carry out for the purposes of performing the Contract, and in particular to comply with all the specific requirements issued by a competent authority with regard to the protection of personal data. In accordance with the foregoing, the Supplier acknowledges and accepts, without the need for further notification or consent (unless required by applicable laws), that Evernex may share (both domestically and cross-border) and disclose data related to the Supplier (including contact information for relevant Supplier personnel) to Evernex’ affiliates, personnel, subcontractors, and third party service providers that have a need-to-know such information for the purposes of administering the performance of the Contract. Evernex will process and maintain such business administration data, including any personal data contained therein, in accordance with its privacy policies and applicable laws.
16.2 Supplier remains solely responsible for obtaining any individual consents or authorizations that may be required in connection with the contemplated processing activities set out in this Article. Where required, the Parties shall enter into additional agreements reflecting such jurisdiction specific requirements, including, but not limited to, the execution of a data processing agreement.
17. COMPLIANCE WITH LAWS
17.1 General Compliance
Supplier shall at all times and at its own expense (a) strictly comply with all applicable laws, rules, regulations and governmental orders, now or hereafter in effect, relating to its performance of the Contract, (b) pay all fees and other charges required by such laws, rules, regulations and orders, and (c) maintain in full force and effect all licenses, permits, authorizations, registrations and qualifications from all applicable governmental departments and agencies to the extent necessary to perform its obligations hereunder.
17.2 Import/ Export requirements
Supplier warrants on an ongoing basis, will comply with import, export control and economic sanction laws and regulations, including (but not limited to those of the United Nations, the United States, United Kingdom, European Union (France included)) that prohibit or restrict the export, reexport, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users.
Supplier shall provide Evernex with information about its customers, Products and/or Services required for compliance with export and sanctions laws and regulations. Failure to comply with these provisions may result, at reasonable opinion of Evernex, in immediate termination and/or suspension, in whole or in part, of this Contract effective upon Evernex’s notice.
Supplier shall mark the Products with the appropriate country of origin marking sufficient to satisfy the requirements of the customs authorities of the country of receipt to prove importation and to transfer duty drawback rights to Evernex. If any Products are imported, Supplier will, at Evernex’s request, either: (a) allow Evernex to be the importer of record; or (b) provide Evernex with any documents required to prove importation and to transfer duty drawback rights to Evernex. Supplier acknowledges that the Products shipped, licensed, or sold under this Order or Contract, which may include technology and software, may be subject to the export control laws and regulations of the United States and other countries and Supplier agrees to abide by those laws and regulations.
17.3 Hazardous Products Requirements
The Supplier undertakes that the shipment of all lithium batteries, and in general, all hazardous materials as they may be defined under different jurisdictions (“Hazardous Products”), purchased by Evernex, comply with the applicable Hazardous Products Requirements as defined below, which includes providing all UN tests report, Safety Data Sheet and transport documentation associated with the Hazardous Products.
The Hazardous Products purchased by Evernex must be received in the mandatory packaging that is properly classified, described, packaged, marked, labelled and prepared in proper condition for transportation, in compliance with international and national regulations regarding Hazardous Products, which include the UN Recommendations on the Transport of
Dangerous Goods, Hazardous Materials, Regulations (HRM) found under 49 Code of Federal Regulations Parts 100-180, Toxic Substances Control Act (TSCA), Occupational Safety and Health Administration (OSHA) Hazard Communication Standard (HCS), International Civil Aviation Organization Technical Instructions on the Safe Transport of Dangerous Goods by Air (ICAO TI), and International Air Transport Association Dangerous Goods Regulations (IATA DGR) (“Hazardous Products Requirements”). The Supplier agrees to confirm the method of transit (e.g., air , road, sea) and to prepare the shipment in compliance with applicable Hazardous Products Requirements. Evernex will rely on such packaging and documentation for purposes of complying with applicable requirements.
Failure to provide certified Hazardous Products in conformity with the standards abovementioned may result in rejection of the Hazardous Products and remedy by Supplier within 5 working days. Additionally, Supplier’s breach of any of the terms above may be a violation of law and be subject to fines, penalties, and other liabilities. The Supplier accepts responsibility for any such violation and agrees to defend, indemnify, and hold harmless Evernex from any and all government or private party claims, damages, expenses, fines, penalties or any other liabilities resulting from, or arising out of, any breach of the terms above. Evernex will have no liability for any damage or delay resulting from Supplier’s breach of the terms above.
18. RECORDS AND AUDIT
18.1 During the performance of the Order or Contract, Evernex shall have the right to perform audits and inspections of the Supplier and its subcontractors for the purpose of, among other things, verify compliance with the Agreement. The audit may be carried out by Evernex or Evernex’s customers or through the intermediary of a reputable independent auditor.
18.2 In case of intervention of a third-party auditor, the latter shall be selected by Evernex. The third-party auditor shall have the required professional qualifications and shall be subject to a confidentiality agreement.
18.3 Such audits or inspections may take place without prior notice to the Supplier’s offices or facilities.
The audit shall not include any access to systems, information or data not related to the processing carried out under the Order or the Contract.
18.4 The Supplier undertakes to cooperate with Evernex or any appointed third-party auditor in the performance of their assignments.
18.5 The Parties acknowledge that all reports and information obtained in the course of this audit are strictly confidential.
18.6 The cost of the audit shall be borne by the Supplier in the case where material breach to the Contract or Order are identified during this audit.
18.7 Supplier shall keep and maintain complete and accurate books, records and accounts with respect to Supplier’s performance under this Order and Contract, including any copies of any government issued permits or authorizations and related correspondence, for five (5) years thereafter or the period prescribed by applicable law or regulation if longer (“Audit Period”). During the Audit Period, Evernex and/or third- party agents may audit Supplier, upon notice and in a non-disruptive fashion, to ensure compliance with applicable laws, this Order or Contract and Evernex Supplier Code of Conduct.
19. ETHICS- ANTI CORRUPTION
19.1 The Supplier is, and will continue to be, subject to all laws applicable to the Services and/or Products provided by it under this Contract, including French laws and regulations as codified in the French Penal Code and any other French or foreign anti-corruption regulations (such as the Sapin II Act of 9 December 2016, the UK Bribery Act and the Foreign Corrupt Practices Act) applicable to the Parties.
19.2 The Supplier (including its officers, directors, representatives, employees, shareholders, agents, shareholders, licensors, contractors, etc.) shall respect all the provisions set out in the “Evernex Supplier Code of Conduct” available on the link below https://www.evernex.com/sustainability/
19.3 Additionally, Supplier acknowledges that it has read and understood the Responsible Business Alliance Code of Conduct as updated from time to time (“RBA Code of Conduct”) (available at http://www.responsiblebusiness.org/standards/code-ofconduct/) and undertakes to adhere to the standards set out in the RBA Code of Conduct with respect to the performance of the Contract as well as Evernex Supplier Code of Conduct. Supplier acknowledges that Evernex has made available Evernex-specific sustainability requirements in addition to the RBA Code of Conduct as part of its Supplier requirements including access to online training relating to Evernex Supplier Code of Conduct.
19.4 Without prejudice to Article 15 (Force Majeure), where Evernex has reasonable suspicion that there is or has been a violation or violations of this Article and, more generally, any law relating to the fight against corruption, Evernex will terminate this Contract with immediate effect and without compensation, upon written notice to the Supplier.
19.5 Failure by the Supplier or any of its subcontractors to comply with the provisions of this Article shall be deemed to be a material breach of the Contract by Supplier entitling Evernex to terminate the Contract. Evernex may, in its sole discretion, without thereby incurring any liability towards Supplier, grant Supplier a period to cure such failure, suspend performance by Supplier under the Contract for a reasonable period or modify its SOW if performance would cause Supplier to breach the provisions of this Article.
19.6 Supplier shall indemnify and hold Evernex and Evernex’s affiliates, customers, employees, officers, directors, shareholders, subcontractors or other representatives harmless from and against any claims, losses, damages, liabilities and costs arising out of, related to, or connected with Supplier’s or any Supplier’s subcontractor’s failure to comply with any of the obligations set forth in this Article. Evernex shall not be liable for any claims, losses, or damages arising from or related to failure by the Supplier to comply with the RBA Code of Conduct or any provisions of this Article.
20. MISCELLANEOUS
20.1 It is expressly understood between the Parties that the Supplier is acting in its own name and on its own behalf as an independent contractor in the execution of its obligations under the terms of the Contract. The Contract or Order may in no way be interpreted as creating a company, an agent or representative relationship, or an employee-to-employer relationship between the Parties, or between a Party and the employees of the other Party. Similarly, the Contract or Order cannot be interpreted as a lease-management (location- gérance) contract. This excludes any possible provision of personnel falling within the scope of temporary work regulations. By express agreement, the Supplier shall not, under any circumstances, have the authority to engage or bind in any way, Evernex.
20.2 Failure by either Party to take action against a breach by the other Party of any of its obligations under the Contract shall not be construed as a waiver of such obligation in the future.
20.3 The delay or failure of either Party to exercise any right or power conferred on it by the Contract shall not diminish such right or power or be construed as a waiver thereof.
20.4 If any of the stipulations of the Order or Contract or a part of it, should be pronounced or declared invalid on the basis of a particular law, regulation or ruling by a competent court, the Parties will meet to agree on one or more stipulations to replace the invalid stipulation or stipulations and to enable the aim of the original clause or clauses to be achieved as far as possible. All other stipulations of the Contract will retain their force and scope.
20.5 Non-transfer of personnel: Upon termination of the Contract, for any reason whatsoever, the Supplier will be solely liable for any consequences it may incur in respect of its personnel, and shall indemnify Evernex against any financial burden that it may incur concerning the personnel the Supplier assigned to the Services, within the maximum limit authorized by law.
20.6 References: Supplier is not authorized to name Evernex, use its name and logo in its commercial or marketing materials and publications unless prior written approval of Evernex.
21. AMICABLE DISPUTE RESOLUTION
21.1 The Parties undertake, in the event of difficulties in the performance of the Contract, and prior to any termination of the Contract as well as any legal proceedings, to use their best efforts to find an amicable solution to any disputes that may arise between them, notwithstanding emergency procedures, protective procedures, summary proceedings, or petitions.
21.2 As such, the Party wishing to initiate the amicable dispute resolution procedure will notify the other Party, by registered letter with acknowledgement of receipt, of its intention to initiate said amicable process by specifying the difficulties encountered, or the deficiencies identified. This letter will be considered as formal notification to remedy the deficiencies.
21.3 The dispute will be placed on the agenda of a meeting between the representatives of Evernex and the Supplier within a maximum period of eight (8) calendar days following receipt of the written notification.
21.4 However, if within fifteen (15) calendar days of this meeting, the Parties have not reached an amicable settlement, each of them will be completely free to act as they think fit.
22. GOVERNING LAW/ COMPETENT JURISDICTION
22.1 This contract is subject to french law, without reference to conflict-of-laws rules. The Parties expressly waive the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
22.2 In the event of a dispute arising out of the contract, and in the event that the Parties do not reach an amicable settlement, both as regards its/their validity, its/their interpretation and/or its/their performance or non-performance, specific competence is assigned to the Commercial Court of Paris, notwithstanding plurality of defendants or the introduction of third parties, even for emergency or protective measures in a summary procedure or petition.