FLEX FUEL ENERGY DEVELOPMENT TERMS AND CONDITIONS APPLICABLE TO RENTAL CONTRACTS
Article 1. Application and Enforceability of the Rental Terms and Conditions
These terms and conditions (hereinafter the “T&C”) govern all contracts made between Flex Fuel Energy Development (“FFED” or the “Supplier”) and any legal entities or adult individuals or State wishing to use and/or lease any energy-saving, depollution or internal combustion engine optimisation system designed, patented, developed and/or marketed by FFED as named in the purchase order and transferred to any company third party to the Supplier or Leaser. They do not apply to sales that are subject to specific contracts, direct sales or service-provision related to energy saving, depollution and internal combustion engine optimisation. These T&C are applicable for the whole time the Equipment is rented by the Lessee. From the transfer of all or part of the Contract, the contractual stipulations agreed between the Lessor and the Lessee will prevail. These Terms and Conditions are sent or provided at the same time as the Purchase Order to any Lessee of Equipment to enable them to order. Consequently, unless otherwise agreed, ordering implies unreserved acceptance by the Lessee and their full and complete compliance with the T&C, which shall take precedence over any other document of the Lessee including any general purchasing conditions unless a derogation is agreed beforehand by FFED. Any other document issued by the Supplier apart from the T&C and any catalogues, prospectuses, advertising material or notices is non-binding and for information purposes only except for technical or commercial proposals issued by FFED and the Purchase Order. No special condition may take precedence over the T&C without the formal acceptance of the Supplier in writing. The fact that the Supplier does not take advantage of any of the provisions herein at a given time cannot be interpreted as a waiver of taking advantage of them at a later date.
Article 2. Definitions
In addition to the terms already defined and those defined in the body of the T&C, the following terms will have the meanings given below: “Agreement” refers to the agreement signed between the Lessee and the third party to which FFED transfers the Contract. “Lessor” refers to the company to which the Supplier transfers all or part of the Contract; “Purchase Order” refers to the standard document established by the Supplier, which, once duly completed as required, signed and sent by the Lessee to the Supplier, materialises the contractual undertaking of the Lessor to the Supplier relating to the Equipment specified on the Purchase Order; “Contract” refers to the Purchase Order and these T&C issued by FFED and duly accepted by the Lessor on ordering; “FFED” or the “Supplier” refers to FLEX FUEL ENERGY DEVELOPMENT, joint-stock company (société par actions simplifiée), whose headquarters is located at Les Espaces Antipolis, 300 route des Crêtes CS 70116 – 06902 Valbonne Sophia Antipolis, 511 026 148 RCS (trade and companies register) Grasse, France. “Lessee” refers to the legal adult or automotive industry legal entity acting for the needs of their professional activity or the State designated as such in the Purchase Order; “Delivery” refers to the provision of the Equipment by the transporter to the Lessee according to the terms set out at article 6 of the T&C; “Equipment” refers to the equipment named in the Purchase Order that is subject to the rental order;
Article 3. Order Modification of the Order
Section 3.1 Formalisation of the Order
To be valid, the order must be made by the transmission, by any means, by the Lessee to FFED (i) of the duly completed and signed Purchase Order in which the Lessee acknowledges having read and accepted the T&C, (ii) and the documents necessary for the implementation of the Contract including but not limited to: a company registration document (K-Bis), bank details, a signed direct debit mandate and a copy of the director’s identity document (hereinafter the “Order”). FFED may refuse to fulfil any Order that does not comply with the stipulations described above. The Order is made and considered firm and irrevocable from the moment the Lessee and FFED agree on the Equipment and the price as mentioned in the Purchase Order. The Lessee, as a professional acting for the needs of their professional business, expressly recognises not benefitting from the provisions of the French Consumer Code relating to the consumer and non-professional including regulations on the cooling-off period.
Section 3.2 Modifications to the Order
Any request for modification to the initial Order made by the Lessee can only be considered by FFED if it is sent in writing and is received by FFED within eight (8) days of the receipt of the initial order by FFED on the condition that the Equipment has not been delivered on the date the modification request is received.
Section 3.3 Contract Duration
The Contract is signed for a fixed period as defined in the Purchase Order and, where applicable, reiterated in the Agreement. At its term, the Contract will be tacitly renewed for successive periods of one (1) year unless a request for termination is sent to FFED by the Lessee by registered post with acknowledgement of receipt at least nine (9) months before expiry or, where applicable, by the Lessor in the conditions provided for in the Agreement.
Article 4 – Transfer of the Contract – Transfer of Ownership – Dispensatory Conditions
Section 4.1 Transfer of the Contract
The Supplier may transfer all or part of the Contract to any third party transferee of their choice including a funding and/or credit body. In this case, the role of FFED will be exclusively limited to indication and not intermediation in banking and payment service operations (IOBSP) as defined by the French Monetary and Finance Code. The transfer of the Contract will only result in the transfer of the ownership of the Equipment and the rights and obligations inherent in the rental of the Equipment. FFED retains the rights, obligations and guarantees associated with its role as Supplier of the Equipment. The Lessee accepts, in advance and irrevocably, where applicable, the transfer of the Contract and recognises as renter any Lessor that replaces the FFED. Such transfer of the Contract will be formalised by the signing of an Agreement between the Lessor and the Lessee to which the Supplier may, where appropriate, be party. The Lessee undertakes to sign any document required for the establishment of the Agreement on first request including providing a direct debit mandate completed and signed in the name of the Lessor. The signing of this Agreement by the Lessee will serve as the deed of transfer within the meaning of article 1216 of the French Civil Code and expressly dispense FFED of any other notification including the notification provided for in article 1690 of the French Civil Code. Consequently, from the signing of the Agreement, the Lessee will automatically find itself answerable to the Lessor for the obligations incumbent on them as Lessee under the terms of this Contract. The Lessee undertakes to pay all rents directly to the Lessor in principal, interest and incidental amounts. The Lessor only replaces FFED in its rights and obligations to the lessee. The Lessee will retain all their rights and recourse against FFED as Supplier. The Lessee, therefore, will not be authorised to carry out compensation, deduction or counterclaim in relation to the Lessor including in the case of a fault, hidden defect, delivery and/or the Supplier’s warranty. The Lessee expressly acknowledges that any transfer of the Contract to the Lessor is an essential prerequisite without which FFED would not have contracted with the Lessee.
Section 4.2 Transfer of Ownership of the Equipment
The Supplier or, where appropriate, the Lessor, retains the ownership of the rented Equipment. Consequently, the Lessee undertakes to enforce this right of ownership including in the event of the initiation of collective proceedings (safeguarding, winding up or insolvency proceedings). The Lessee may not transfer, sell, pledge or put the Equipment in trust, directly or indirectly, or carry out any associated operation. The Lessee undertakes to immediately inform the Supplier and, where necessary, the Lessor, of any material or legal breach of their right to the Equipment.
Section 4.3 Defective Delivery attributable to the Lessee
On defective delivery of the Equipment attributable to the Lessee including in the event of the signing of the Report referred to in section 6.4 of these T&C for any cause attributable to the Lessee, this Contract will automatically become null and void on the date that FFED becomes aware of the defective delivery of the Equipment. The Lessee will be required to pay FFED compensation equal to 30% of the amount of all rents indicated on the Purchase Order to repair the harm suffered by FFED due to the non-useful immobilisation of the Equipment for the benefit of the Lessee as well as the procedures and costs engaged by FFED since the signing of the Purchase Order to satisfy delivery of the Equipment (creation of a file, transporter fees, procedures required for installing the Equipment etc.) (hereinafter “nullity compensation”).
Section 4.4. Late Payment by the Lessee
In the event of late payment of any sum due by the Lessee, late interest set at five (5) times the legal interest rate will be due, automatically, without prior notice, from the due date to the effective payment date. Any late payment will also result in a fixed fee for recovery to be paid by the Lessee of forty euros (€40) without prejudice to the Supplier’s right to claim additional compensation for the harm suffered, direct or indirect, actual or to terminate this Contract under the conditions provided for in article 5 herein.
Article 5. Sanctions – Contract Termination
Section 5.1. Dereferencing of the Lessee – Cancellation Clause
In the event of a breach as listed below in section 5.2, FFED reserves the right to (i) dereference the Lessee from their website and/or (ii) cancel the Contract at the exclusive fault of the Lessee without prior notice or legal formality and, if the Equipment has already been delivered to the Lessee, (iii) to obtain its return and demand from the Lessee all damages corresponding to its disbursements, deposits, costs and other and compensation equal to ten per cent (10%) of the price (excluding tax) of the Equipment plus VAT at the current rate on the date it is due plus, where applicable, the rent remaining until the expiry of the Contract. In all circumstances, it is an ability granted to the Supplier, FFED reserving the right to require the forced execution of the Contract.
Section 5.2. Cases of Breach by the Lessee
The provisions of Section 5.1 will be applied in one of the following cases of breach by the Lessee: (i) Failure to pay and/or late payment of rent, (ii) Preventing the transfer of the Contract to the Lessor in any way and in any form whatsoever, (iii) Breach of FFED’s or, where applicable, the Lessor’s right of ownership including in the event of the transfer of the Equipment for any reason whatsoever (cession, provision, legal sale etc.);
Article 6. Delivery – Reception
Section 6.1 Place of Delivery
Unless stated otherwise in writing, the Equipment ordered by the Lessee will be delivered either to a place previously agreed by the parties together on the Purchase Order or collected by the Lessee at a collection point indicated in writing by FFED. All costs and risks related to transport, delivery and installation are incumbent on the Lessee.
Section 6.2 Provision of Documents
On delivery, the following documents will be provided by FFED to the Lessee:
– The invoice corresponding to the Order,
– An inventory of the Equipment delivered,
– The user manual for the Equipment.
The invoice will include the payment currency, the name and origin or the rented Equipment, its quantity, price and the Delivery conditions. It will be signed and stamped by FFED. The failure to provide these documents will in no case give rise to the cancellation or termination of the Order but the Lessee will have the right to request a copy of them from FFED, which undertakes to provide them within eight (8) days of the request.
Section 6.3 Delivery Times
The Delivery time indicated on the Purchase Order is given for information purposes only and is not a firm commitment by FFED. Non-compliance with it will in no circumstances give rise to cancellation of the Order made by the Lessee and recorded by FFED or to the suspension of the Lessee’s obligations or the payment by FFED of any compensation or damages to the Lessee. FFED will do its best to execute the Order and comply with the delivery times indicated except in the case of a force major event according to French law and case law. The following are considered to be force majeure events, without this list being exhaustive: government decisions, fire, war, embargo, insurrection, industrial action, hostilities, acts of terrorism, sabotage, flood, explosion, epidemic, quarantine restrictions, factory closure and social labour disputes and delay by a subcontractor or supplier themselves facing a force majeure event as defined above. In the case of force majeure, delivery times will be extended by the number of days that correspond to the duration of the interruption of services resulting from the case of force majeure. Before delivery, the Supplier will contact the Lessee by any means to agree on a day and time slot. If the Lessee does not receive the Equipment at the agreed time including in the case of (i) postponement or cancellation of delivery less than twenty-four (24) hours in advance and/or (ii) more than two (2) successive postponements, the Lessee risks the penalties set out in Section 4.3 herein.
Section 6.4 Receipt of the Order
Receipt of the Order occurs on the day of Delivery, at the place of Delivery mentioned on the Purchase Order or any other collection point indicated in writing by FFED. The Lessee is required to check the apparent good condition and compliance of the Equipment delivered with the specifications included in the Purchase Order and carry out checks on the proper working of the Equipment delivered. The results of the receipt of the Order are subject to a report drawn up by FFED and signed by FFED and the Lessee or a representative appointed for this purposed (hereinafter the “Report”). Any reservations must be formulated in writing on the day of Delivery in the Report. Failing this, they may not be taken into consideration and the Lessee will be deemed to have definitively received the Order. The signature of the Report by the Lessee or their representative on receipt of the Order or the signature of FFED in the circumstances provided for in the previous paragraph covers any visible defect in the Equipment delivered which is not the subject of a reservation in the Report. If the Lessee or their representative refuse to sign the Report, FFED will keep the Equipment and reserve the right to apply the provisions of section 4.3 herein.
Article 7. Use of the Equipment – Damage to the Equipment – Return
Section 7.1 Use of the Equipment
The Lessee declares and acknowledges having personally selected the Equipment for the needs of their professional business and, therefore, has the skills required to use the Equipment. The Lessee undertakes to maintain the skills required for using the Equipment. They undertake to use the Equipment reasonably, comply with the specifications communicated by FFED and submit to all current standards pertaining to the use of the Equipment. Consequently, unless expressly agreed in advance and writing by FFED or, where applicable, the Lessor, the Lessee shall not carry out, directly or indirectly, any modification of the Equipment and/or move the Equipment. The Lessee must, at their expense, for the duration of the Contract, maintain the Equipment in perfect repair and working order to return it at the end of the lease with no modifications of any kind, perfectly conserved, taking normal wear into account.
Section 7.2 Damage to the Equipment
As custodian of the Equipment from the signing of the Report until its return, the Lessee assumes all risks of deterioration and loss, whatever the cause of the damage, even if this is due to a case of force majeure or the fault of a third party. The Lessee is, in all circumstances, liable for all damage, direct or indirect, caused by the Equipment or suffered by it. The Lessee undertakes to take out at their own expense policies with a reputably solvent insurance company covering any risks that may result from the Equipment including civil liability.
Section 7.3 Claims
The Lessee must inform FFED and, where appropriate, the Lessor, within five (5) days of the occurrence of an incident leading to a claim (loss, theft or any damage to the Equipment with any cause whatsoever). The Lessee makes any claims, under their liability, to their insurance company and/or policy services. In the event of theft or complete deterioration of the Equipment for any reason whatsoever, the Lessee must replace the Equipment at their expense or pay FFED compensation equal to the rent remaining until the end of the Contract unless the Agreement made with the Lessor provides other terms. In the case of a partial claim, the Lessee must ensure the complete repair of the Equipment at their expense. Under no circumstances can a claim justify the Lessee stopping the payment of rent.
Article 8. Return
During the return of the Equipment for any reason whatsoever, the Equipment will be uninstalled and collected by FFED (or a representative specified by FFED) at a time agreed with the Lessee beforehand. The Equipment must be in good working order and have all the elements required for its operation. The Equipment must be in good working order on its return. In the event of malfunctions that prevent normal use of the Equipment, FFED will invoice the Lessee for any repairs necessary. If the Equipment is not returned immediately on the expiry of the Contract, for any reason whatsoever and in any way whatsoever, the Lessee will be invoiced five (5) times the amount of the last rent invoiced for the same period as immobilisation compensation without this payment implying a continuation of the Contract or Agreement. These T&C will apply as long as the Equipment has not been effectively returned.
Article 9. Warranty
Section 9.1 Duration and Scope of the Warranty
On condition of the Lessee’s compliance with the stipulations set out in sections 6.1 and 6.2, FFED guarantees the Equipment subject to the Order against operational defects and those resulting from a manufacturing defect (herein the “Warranty”) in the following limits and conditions:
– From the date of Delivery, the Equipment is guaranteed: • For mainland France and Corsica until the occurrence of the first of the two following events: from the Delivery date, a period of sixty (60) months or two thousand (2,000) hours of use; For French overseas territories, Europe and international, for sixty (60) months from the Delivery date.
– FFED will only be required, under the Warranty, to repair defective parts free of charge or, if the repair is too expensive, to replace the Equipment.
– The Warranty does not apply to parts known as “wearing” parts and, without this list being exhaustive, seals, trims etc.;
The Warranty will be automatically revoked and the Lessee will not have the right to invoke it if:
– the Equipment has been used in breach of the prescriptions of the user manual and/or,
– maintenance of the Equipment has not been performed in accordance with the instructions contained in the user manual and/or,
– modifications have been made by the Lessee or any user of the Equipment after its Delivery without the express prior agreement of FFED and/or,
– repairs of the Equipment have been carried out by the Lessee or a third party without the express prior agreement of FFED and/or,
– cleaning, storage and/or conservation of the Equipment has been defective and/or,
– any opening of the Equipment that was not authorised in advance in writing by FFED has been carried, the “Garantie Flexfuel” strips providing evidence of this,
– there are one or more visible defects and/or one or more missing components that were not indicated in the Report.
Section 9.2 Application of the Warranty
To be able to validly invoke the Warranty, the Lessee must inform FFED as soon as possible of the nature of the defects observed in a written report. The Equipment or any of its components must be returned by the Lessee at their expense and risk within twenty (20) calendar days of the receipt by FFED of the non-compliance report. The return by the Lessee of the Equipment or Equipment component in question will be CIP (Cost, Insurance, Freight INCOTERMS 2010) to the location indicated by FFED. If examination by a FFED expert reveals that the Equipment or component has no defects, the costs of examination and transport will be due by the Lessee. If the examination carried out by the FFED reveals that the Equipment or component has one or more defects, the transport costs engaged by the Lessee to return the defective component in question to FFED premises will be refunded by FFED on the presentation of supporting documents. In this case, the duration of the Warranty is suspended for the period during which the Equipment or the component(s) are not operational. The Delivery of the replaced or repaired Equipment or component will be carried out by FFED at the Delivery place referred to in the Purchase Order or any other place indicated in writing to FFED by the Lessee within ninety (90) days from the date of reception of the elements by FFED.
Article 10. Limitation of Liability Clause
The Lessee alone bears the financial risks resulting for them from this Contract, its execution and its possible transfer to the Lessor. FFED cannot be held liable for the financial consequences resulting from the Contract and its consequences for the Lessee.
In all circumstances, the Supplier is not liable for:
– special, indirect, accessory or consequential damage resulting from or related to the use of the Equipment;
– harm to a third party caused by use of the Equipment;
– loss of profits, anticipated savings, business, opportunities, turnover, time, customers or damage to reputation or any indirect loss or damage, foreseeable or otherwise, that may occur; – events outside of any other cases of force majeure under French law and case law.
Moreover, the Supplier cannot be held liable, both contractually and extra-contractually, in the event of non-performance, temporary or definitive, of their obligations if this non-performance results from either a case of force majeure or an insurmountable and unpredictable act by the third party. If the Supplier is liable, the Lessee’s compensation will be limited to the total amount paid to the Supplier for the Purchase Order.
Article 11 Miscellaneous Provisions
Section 11.1 Notification – Communication
Any written notifications or communication between FFED and the Lessor for the purposes herein and the rental in general may be sent by fax or email unless the T&C stipulate other written means. They must be sent to FFED at the following address: Flex Fuel Energy Development, 5, Avenue des Renardières au Pôle Economique des Renardières, Moret-Loing-et-Orvanne (77250), France – E-mail: firstname.lastname@example.org. For the Lessee, they must be sent to the address indicated in the Purchase Order. The Lessee undertakes to communicate as soon as possible to FFED and, where appropriate, the Lessor, any change of name, address and/or any modification that may affect their relationship with FFED and, where applicable, the Lessor.
Section 11.2 Invalidity
The potential invalidity or unenforceability of an article, paragraph, section or provision (or part of an article, paragraph, section or provision) will in no way affect the legality of the other articles, paragraphs, sections or provisions of these T&C nor the rest of that article, paragraph, section or provision and the T&C should be interpreted as if the invalid or unenforceable provision had been omitted.
Article 11.3. Intellectual Property
The information, data or other elements contained in any document or information medium provided by FFED in the context of the Order are and remain the exclusive property of FFED as do all associated intellectual property rights. The Lessee undertakes not to use the elements mentioned above in a way that may breach the intellectual or industrial property rights of FFED and undertakes not to disclose them to any third parties.
Section 11.4 The Personal Data of FFED and the Lessee
FFED and the Lessee are required to process personal data within the meaning of Law No. 78-17 of 6 January 1978 relating to IT, files and freedoms (hereinafter “IT and Freedoms Law”) and the General Data Protection Regulation of 27 April 2016 (hereinafter “GDPR”) concerning the individuals working within their respective entities regardless of their status (legal representative, employee etc.) The data collected includes the identity document of the Lessee’s legal representative, their bank details and/or their K-BIS and the identity of the Lessee’s points of contact within FFED. FFED and the Lessee agree that each of them remain the respective point of contact for their staff to ensure that they receive the information provided for in articles 12 to 14 of the GDPR and can exercise their rights if necessary. The data subjects have a right to access, rectify or delete their data, to limit its processing, oppose it and to the portability of the data concerning them as well as the right to make a complaint to the relevant supervisory authority (the CNIL in France). The data collected is retained for no longer than is required for the purposes for which it is processed. In particular, purchase orders and other documents required for the accounts of the Parties are retained for a period of ten (10) years. In all circumstances, FFED and the Lessee guarantee that they process personal data in accordance with all of the applicable legislation including the GDPR, in particular as far as the privacy and security of the data are concerned.
Section 11.5 The Personal Data of the Lessee’s Customers
As part of the performance of the de-scaling service with the Connect machine whose leasing is the subject of these T&C, the Lessee is required to collect personal data from its customers at the request of FFED. The Lessee collects this data and transmits it to FFED in the conditions determined by FFED. The Lessee is the data processor and FFED is the data controller. This section does not apply to personal data collected by the Lessee on its own behalf as a data controller. The personal data collected by the Lessee as FFED processor are the following (hereinafter the “Personal Data”):
– customer surnames and first names;
– customer email addresses and phone numbers;
– customer vehicle registration numbers.
The collection of this data, optional and subject to the customer’s consent, is for the purpose of:
– Providing the customer with a treatment report;
– Ensuring the management of and satisfaction with the customer/Lessee/Supplier relationship including for after-sales service;
– Analysing statistics on vehicles and carrying out comparisons and/or studies on the automotive market;
– Creating and managing FFED customer files;
– Improving the quality of FFED services;
– Sending customers information letters and commercial proposals by email and/or SMS;
– Providing customers with personalised information and/or services according to the needs of their vehicles including reminders for their next theoretical treatment and/or to offer products developed by partners;
– Assisting with introducing an automotive professional;
– Managing any complaints or disputes related to the de-scaling service.
The Lessee declares that:
– they only process the data mentioned above as a data processor on the documented instructions of FFED;
– they have set up and will maintain all appropriate privacy and security measures both on a technical and organisational level to protect personal data from illegal destruction, accidental loss or any alteration, access or other illegal processing of personal data.
– that the personal data is collected in good faith according to the provisions of the GDPR and that customers are informed on the subject prior to the collection of their data in accordance with FFED’s instructions;
– that they will not use a subcontractor without FFED’s authorisation;
– that they will inform FFED of any data breach (loss, theft, alteration, destruction etc.) of which they are aware;
– that they will share with FFED any request by a customer to exercise their rights made to them;
– that, at the end of this Contract, they will destroy the personal data collected;
– that they will prove compliance with the obligations of this section upon the first request of FFED.
In general, the Lessee and the Supplier undertake to guarantee compliance with legal and regulatory provisions relating to data protection.
Article 12. Relevant Jurisdiction and Applicable Law
The Contract and any element governing the contractual relationship between FFED and the Lessee are written in French and subject to the laws and regulations of the French Republic, exclusive of any other law. Any dispute between the Lessee and FFED relating to the existence, validity, interpretation, execution, transfer and consequences of the contractual relationship and if an amicable solution cannot be found, will be submitted to the Tribunal de Commerce de Paris (Paris commercial court), even in summary proceedings unless the Agreement provides for another clause attributing jurisdiction. This jurisdiction is stipulated to be for the exclusive benefit of FFED, which can waive it for the jurisdiction rules provided for by law.