FLEXFUEL ENERGY DEVELOPMENT’S GENERAL TERMS AND CONDITIONS APPLICABLE TO LEASE CONTRACTS
Article 1. Application and opposability of general terms and conditions of lease
The present general terms and conditions (hereafter the “GTC”) govern all contracts signed between FFED UK LTD incorporated and established in England and Wales of 11300543 registered at 11 Old Jewry, London EC2R 8DU registered at (hereafter “FFED”) and the person, corporate or unincorporated body (whether or not having separate legal personality) (hereafter the “Lessee”) who wishes to use and/or lease the energy-saving system, the depollution system or the optimising system for internal combustion engines, designed, patented, developed and/or marketed by FFED (hereafter the “System”) and financed through a third party financing company distinct from FFED and the Lessee (hereafter the “Lessor”). The GTC are not applicable to sales that are the object of specific contracts, to direct purchases, or to services provided in connection with energy saving, depollution and optimising of internal combustion engines.
The present GTC apply for the duration of the use of the Equipment. Following acceptance of said financing request, the contractual stipulations signed by the Lessor and the Lessee will prevail over these GTC. The present GTC will apply once again in the event of default on behalf of the Lessee with regard to the Lessor.
The present GTC apply to each Order to the exclusion of any other terms that the Lessee seeks to impose or incorporate, or which are implied by trade, customer, practice or course of dealing.
Consequently, unless otherwise agreed, placing of an Order entails full acceptance by the Lessee of, and its full and unreserved adherence to, the GTC, which prevail over any of the Lessee’s documents, and in particular any general purchasing conditions, unless otherwise agreed by FFED and the Lessee by prior written agreement.
Any documents other than the GTC issued by FFED and in particular catalogues, brochures, advertisements, manuals, are provided only for information and indication purposes, and are non-contractual, with the exception of technical or commercial proposals issued by FFED and the Order Form.
The Order constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
No special terms may prevail over the GTC, unless these have been formally approved by FFED in writing.
Failure on behalf of FFED to invoke any of the provisions of the GTC shall not be interpreted as waiver of application of said provisions at a later date.
Article 2. Definitions
Each time they are used in the text of the present GTC, the terms beginning by a capital letter and indicated above or hereafter are considered as having the following meaning;
“Lessor” refers to the financing company having purchased FFED’s Equipment at the request of the Lessee in order to lease it to the Lessee;
“Order Form” refers to the standard document established by FFED, which after it has been duly and necessarily completed, signed and sent by the Lessee to FFED, materializes the latter’s financial and legal commitment with regard to the former and relative to the System(s) object of the Order Form;
“Delivery” refers to transmission of the Equipment to the Lessee’s carrier in accordance with the terms stipulated under Article 5 of the present document; and
“Equipment” refers to the equipment(s) indicated in the Order Form and object of the lease request.
Article 3. Order – Derogation rules – Sanctions
Section 3.1 Formalizing of the order
For it to be valid, an order must be placed by the Lessee by transmitting by any means to the FFED the Order Form, duly filled in and signed by the Lessee, and in which the Lessee acknowledges it has read and approved the present GTC (hereafter the “Order”).
FFED may refuse any Order Form not complying with the above-mentioned stipulations.
The Order is placed, and considered as final and irrevocable, once the Lessee and FFED agree on the Equipment object of the lease and agree on the price.
After the Order is placed, the Lessee irrevocably agrees to sign a financing agreement for the Equipment with the Lessor, to which FFED may be a party, if necessary (hereafter the “Lease Contract”).
Section 3.2 Derogatory rules pertaining to performance of the Order Form
Toute demande de modification de la Commande initiale passée par le Locataire ne pourra être prise en compte par FFED que si ladite demande est adressée par écrit et est parvenue à FFED au plus tard huit (8) jours après la réception par FFED de la Commande initiale, à condition toutefois que le Matériel n’ait pas été livré à la date de réception de la demande de modification.
Section 3.3 Durée du Contrat
In the event of failure to sign a Lease Contract, for any reason attributable to the Lessor or the Lessee, the Lessee agrees to directly pay FFED the total amount of the lease as stipulated in the Order Form, according to the following derogation rules, which will constitute an amendment to those indicated in the Order Form:
- A first lease amounting to thirty percent (30%) of the total lease amount stipulated in the Order Form for the lease (hereafter the “Initial Lease Payment”);
- Fifty-nine (59) lease payments equal to the balance of the sum due (hereafter “Remaining Lease Payments“).
The 59 Remaining Lease Payments will then be payable to FFED in advance, in the month following the Initial Lease Payment.
Consequently, the Lessee irrevocably agrees to sign the Single Euro Payments Area debit authorisation form (“SEPA Debit Authorisation Form”) transmitted by FFED, in which it authorises FFED to debit the Initial Lease Payment and the Remaining Lease Payments on the debit date indicated on the SEPA Debit Authorisation Form, in the event it does not sign the Lease Contract with the Lessor.
Provided this is indicated in the terms of the Order Form, the lease will be automatically renewed under the same terms, following payment of the last Remaining Lease Payment.
Section 3.3 Sanctions
In the absence of (i) receipt by FFED of all the above-mentioned documents in Article 3.1, (ii) fulfilment by the Lessee of its commitments with regard to FFED and/or the Lessor, including, without limitation, payment of leases, (iii) signing the Acceptance Report and/or (iv), if applicable, non-payment of the Initial Lease Payment and/or any of the Remaining Lease Payments, FFED may, without affecting any other right or remedy available to it, terminate the Order and, with the approval of the Lessor, treat the Lease Contract as void, and in the event the Equipment has already been delivered to the Lessee, to request such Equipment is immediately returned and to charge the Lessee for all resulting costs, expenses, advances and disbursements incurred by FFED, as well as an indemnity of 10% of the cost excluding tax of the Equipment, all subject to VAT at the current rate on said date, in addition to any leases already paid.
The Lessee shall procure that FFED has the right to request enforcement of the Lease Contract by the Lessor.
Article 4. Changes brought to the Order
FFED will only consider any request for changes to the content or the volume of an Order placed by the Lessee if such request is made in writing and sent to FFED within 8 days following receipt by FFED of the Order and provided Delivery of the Equipment has not yet occurred.
In the event of changes to the Order placed by the Lessee, FFED will not be bound by any changes in the deadlines set out in such changed Order.
Article 5. Delivery – Receipt
Section 5.1 Delivery
Delivery of the Equipment shall be Ex-Works (INCOTERMS® 2010): 11 Old Jewry, London EC2R 8DU.
Section 5.2 Presentation of documents
Upon Delivery, FFED will present the following documents to the Lessee:
- The commercial invoice,
- An inventory of the Delivery,
- The instruction manual(s) of the Equipment.
The commercial invoice indicates: the payment currency, the name and origin of the leased Equipment, the quantity, price and delivery terms. It will be signed and stamped by FFED.
Failure to present these documents shall not result in cancellation or termination of the Order but the Lessee will be entitled to request in writing a copy of these documents from FFED, who agrees to present such documents within 8 days of receipt of such written request.
Section 5.3 Delivery deadlines
Delivery deadlines for the Order are provided on an indicative basis and for information purposes and FFED is not bound by them. The time of Delivery is not of the essence.
If FFED fails to comply with these deadlines, its liability shall be limited to the costs and expenses incurred by the Lessee in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Equipment.
FFED will endeavour to carry out the Order and to comply with the indicated delivery dates, except in particular in the event of “Force Majeure” which for the purposes of the GTC are events outside FFED’s reasonable control including, without limitation, government decisions, fire, acts of war, embargoes, insurrections, strikes, hostilities, acts of terrorism, sabotage, flooding, explosions, epidemics, quarantine restrictions, plant closings and labour disputes, delays by sub-contractors or suppliers.
In the event of Force Majeure, delivery deadlines will be extended by the number of days of interruption of services resulting from the cases of Force Majeure.
Section 5.4 Acceptance Report
Receipt takes place on the Delivery date, where we make the Equipment available as set out in the Order Form, in order to ensure the delivered Equipment(s) complies(y) with the technical specifications indicated on the Order Form and the Equipment functions properly.
The results of this receipt are indicated in an acceptance report provided by FFED and subject to the signatures of FFED and the Buyer or a representative it has appointed (hereafter the “Acceptance Report”).
Signing of the Acceptance Report by the Buyer or its representative or the sole signature of FFED on the assumption indicated in the previous paragraph, covers and visible and/or hidden defects.
In the event the Buyer refuses to sign the Acceptance Report, FFED will retain the Equipment and reserves the right to apply provisions of Article 3.2 of the present document.
Article 6. Warranty of leased Equipment
The provisions of this Article 6 relate to the Warranty and apply for the benefit of the Lessor. The benefit of the Warranty only transfers to the Lessee in the event of an express decision by Lessor.
Section 6.1 Duration and field of application
FFED guarantees the Equipment listed in the Order, against any operating defects and those resulting from defective manufacturing (above and hereafter the “Warranty”), within the following limits and under these terms:
- As of the Delivery date, the Warranty for the Equipment applies for twenty-four (24) months following the Delivery date.
Under the Warranty, FFED is solely liable for the replacement or repair free of charge of any defective parts or in the event the repair is considered by FFED as too costly, the replacement of the defective Equipment;
- The Warranty does not apply to normal wear parts and consumables in particular but not limited to, seals and gaskets.
The Warranty is revoked by full right and may not be invoked by the Lessor and where appropriate by the Lessee, in the following cases:
- The Equipment and/or the System(s) were used in violation of recommendations indicated in the instruction manual and/or;
- Maintenance of the Equipment and/or System(s) was not performed in accordance with instructions indicated in the instruction manual and/or;
- Changes were made by the Lessee or any user of the Equipment and/or the System(s) after Delivery without the express prior approval of FFED and/or;
- Repairs were performed on the Equipment and/or the System(s) by the Lessee or third parties without the express prior approval of FFED and/or,
- Care, storage and/or protection of the Equipment and/or System(s) was defective and/or;
- Any opening of the Equipment and/or System(s) took place for which prior written approval of FFED was not obtained, as ascertained by the “Flexfuel Warranty” strips and/or;
- Any visible defects and/or deficiency not indicated in the Acceptance Report.
Section 6.2 Application of the Warranty
To ensure the valid application of the Warranty, the Lessee must inform FFED as soon as possible and in a written report describing the nature of the recorded defects.
The Equipment or any of its components must be returned by the Lessee at its own cost and risk within a period of twenty (20) calendar days as of receipt by FFED of the non-conformity report.
Return by the Lessee of the Equipment or items composing the Equipment and/or System(s) in question under CIP, Cost, Insurance, Freight (INCOTERMS® 2010) to the location indicated by FFED. In the event the expert appraisal performed by FFED reveals the Equipment or one of its components and/or the System(s) shows no defects, the expert appraisal costs and shipping costs will be charged to the Lessor or the Lessee.
In the event the expert appraisal performed by FFED reveals the Equipment or one of its components and/or the System(s) shows one or more defects, the shipping costs incurred by the Lessor or the Lessee to return the defective item in question to the FFED premises will be paid by FFED subject to presentation of supporting documents. In this case, the duration of the Warranty is suspended for the period during which the Equipment or its components are not operational.
FFED will use reasonable endeavours to deliver the Equipment(s) or the repaired or replaced components of the Equipment(s) to the premises of the Buyer within a maximum period of 90 days as of receipt of said items by FFED.
Article 7. Notification – Communication
Any written notifications or communications between FFED and the Lessee pertaining to the present GTC and more generally the lease of the Equipment may be sent by fax or email unless the present GTC provide for other means. These must be sent to FFED to the following address:
Flex Fuel Energy Development: 11 Old Jewry, London EC2R 8DU,
For the Lessee, these must be sent to the address indicated on the Order.
Article 8. Limitation of Liability
The Lessee and FFED bear their own financial risks which may result from this contract and its execution. Consequently, FFED will not be liable for any subsequent contracts the Lessee agrees or plans to agree or subsequent expenditure that the Lessee incurs whether or not FFE had specific knowledge of such contracts or expenditure.
Nothing in the GTC excludes or limits the liability of FFED for:
- fraud or fraudulent misrepresentation;
- death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
- any matter in respect of which it would be unlawful for FFED to exclude or restrict liability.FFED will not under any circumstances whatsoever be liable to the Lessee for misrepresentation or otherwise for any losses of any kind which arise out of or in connection with these GTC or any Order, including but not limited to:
- loss of profit, loss of business, contracts, revenue, anticipated savings, time or clients;
- damage to the Lessee’s reputation or goodwill;
- any product recall costs; or
- any special, indirect or consequential loss (whatsoever and howsoever caused).
Subject to the above provisions in this Article 8, FFEDs total liability to the Lessee whether in contract, tort (including but not limited to negligence), misrepresentation, breach of statutory duty, or otherwise, arising under or in connection with each Order shall be limited to the total amount paid to FFED under such Order.
Article 9. Data
The Lessee expressly agrees that the data he provides, including the ID card or passport of his legal representative, his bank account details and / or confirmation statement, may be collected by FFED and transferred to the Lessor.
The information and personal data collected by FFED is required by FFED and the Lessor only for the purpose of the execution of the Order Form and for execution of the Lease Contract.
The Lessee has a right of access, alteration, amendment and deletion of their data which concerns them, in accordance with data protection laws, at the address above.
Data collected and maintained by FFED is collected at the above address for a period of three (3) years. FFED will process personal data in accordance with the law, regulations and decrees applicable to the processing of personal data, particularly with regards to the confidentiality and security of such data.
Article 10. Competent jurisdiction and applicable law
The Lessee and FFED irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim occurring between the Lessee and FFED relative to the existence, validity, interpretation, performance and termination of the contractual relationship between them in relation to the present GTC or an Order.
Each Order and the present GTC and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.