General Sales & Procurement Conditions

The purpose of these general conditions shall be to provide a definition and/or a reminder of the conditions in which the Eurailtest EIG (hereafter referred to as Eurailtest) operates in relation to its co-contractors, in other words, for the most part, Clients and Sub-contractors.

1.1. Clients are those who place orders with Eurailtest, in other words those on whose behalf Eurailtest intervenes and who pay for the service(s) agreed under the terms of the Contract.

1.2. Sub-contractors are those who act on behalf of Eurailtest, in accordance with the terms of the contract.

1.3. In addition to these general conditions, which are an integral part of the contract, the Contract may comprise special conditions, which will further specify and/or amend the general conditions (agreement, purchase order in conformity with the quotation or, in the event of additions and/or amendments made by the Client, expressly accepted by Eurailtest, etc.). These general conditions shall apply right from the negotiation phase preceding signature of an official purchase order or the signature of the contract. Services performed on behalf of the Client and/or means provided from such performance during this pre-contract phase will be invoiced by Eurailtest, it being understood that price quotations issued by Eurailtest shall be valid for one month.

1.4. The word Tests shall be understood to mean the design and/or execution, on behalf of the Client, of tests on railway or urban systems, sub-systems or components, and this in the unrestricted sense of the term. Tests may be conducted either directly by Eurailtest or by a Sub-contractor.

1.5. Raw, unconfirmed results shall be the measurement results and/or provisional calculations provided by Eurailtest prior to their validation. Their function shall be solely indicative and any use made of them shall be under the sole responsibility of the Client.

1.6. Validated results shall be the measurement results and/or calculations confirmed by Eurailtest or by its Sub-contractor(s).

1.7. The “Schedule for the Service” shall detail the tasks that have to be performed to complete the Service, the time required and the schedule of operations. Any changes in this schedule shall be covered by an additional clause to the contract.

1.8. Cancellation or Termination of the Service shall have the effect of stopping procedures definitively. The expression Cancellation shall apply if the starting date for the Services (T0) has not yet occurred; the word ‘Termination” shall apply in all other cases.

As a service provider, Eurailtest shall act under the cover of a contract governed by Articles 1787 and following of the French Civil Code.

2.1. Eurailtest’s activity shall consist of examining the feasibility and/or designing the tests to be performed in relation to the Client’s needs and on the latter’s behalf. Eurailtest shall organise the logistics arising from the execution of the tests. To this end, Eurailtest may have to enter into contracts with transport enterprises and/or forwarding agents. However, it must be clearly understood that under no circumstances will Eurailtest act as a forwarding agent, since its sole status shall be that of consignor or consignee for the transport operation, on its own account, on behalf of the Client or on behalf of the Sub-contractor. On the French National Rail Network (RFN), Eurailtest shall ensure that all steps have been taken to obtain the necessary permission/approval from the appropriate authorities for the tests to be carried out. Eurailtest will inform the Client of progress with the tests on a periodical basis and each time this is necessary. Eurailtest will advise the Client on the feasibility of the tests and/or their design and/or any changes to them. Eurailtest, shall carry out and/or have carried out the tests ordered by the Client and/or shall, where applicable, submit to him the untreated results obtained in their unconfirmed form. Once the tests have been completed, Eurailtest may produce a report in French setting out its conclusions. Eurailtest shall be bound by an obligation as regard resources. Exceptionally, the reliability of the validated results may constitute an obligation as regards results to be borne by Eurailtest and any Sub-contractor to which Eurailtest may have had recourse in this connection.
Eurailtest shall not be bound to ensure the safety of railway movements, except in cases where it supplies services consisting of organising and managing tests on a railway network.

2.2. Eurailtest may also perform ancillary services: studies, consultancy and expert analyses, technical and logistics management, the list being non-exhaustive. Here again, Eurailtest shall be responsible in the event of a proven fault, within the limits of its own liabilities.

3.1. The Client shall place the product to be tested at the disposal of Eurailtest.
The Client shall provide Eurailtest with all necessary and useful elements to enable it to perform its service and, in particular, those attesting to the fact that the product being tested is compliant (in the ISO 9001 sense). The Client shall cooperate actively in the completion of the tests and must inform Eurailtest of any hardware and/or software changes that affect the product tested by comparison with the detailed description given when placing the product at Eurailtest’s disposal.
Any repairs and/or maintenance that may have to be conducted on the product in order to be able to continue providing the Eurailtest service shall be the responsibility of the Client. In the event of such repairs and/or maintenance operations being performed directly by Eurailtest, the Client shall bear the corresponding cost, unless he can prove that the repairs were made necessary as a result of a fault on the part of Eurailtest.

3.2. The Sub-contractor shall be obliged to inform Eurailtest of the technical and financial conditions of his contribution, in particular in order to enable Eurailtest to submit a proposal to the Client within competitive lead times. He shall undertake to take utmost care in providing the services commissioned of him by Eurailtest. He shall undertake to bear his responsibilities in relation to Eurailtest for the services sub-contracted to him on behalf of the Client, under the same conditions as those applicable between Eurailtest and the Client. The Sub-contractor shall therefore perform the operations sub-contracted to him under his entire responsibility and may be accountable for them both directly in relation to the parties involved in the contractual operation and in relation to third parties. The Sub-contractor shall also undertake to carry out and/or have carried out the operations requested of him in accordance with the rules for handling the equipment, in such a way as to ensure the safety of people and moving vehicles and protect the equipment and tests at all times.

3.3. The parties (Client, Eurailtest and Sub-contractor) shall comply with the safety instructions of which they shall be notified and shall ensure that these instructions are obeyed by their staff and/or sub-contractors and/or guests.

4.1. Postponement of the starting date for the Service (T0)
4.1.1. When the starting date for the Service (T0) is postponed for a reason that cannot be directly ascribed to Eurailtest or its Sub-Contractors, no claims for compensation of any kind may be submitted to Eurailtest.

4.1.2. Other than in the event of a fault on the part of Eurailtest (or one of its Sub-Contractors) or in the event of force majeure, compensation shall be legally applicable depending on the amount of advance noticed given to Eurailtest¹ :
– more than 60 calendar days before T0: Eurailtest shall be not be entitled to any compensation,
– between 15 and 60 calendar days before T0: 50% of the amount for the number of test days postponed (net of taxes),
– less than 15 calendar days before T0: 80% of the amount for the number of test days postponed (net of taxes).
The amount per day of postponement shall be obtained by dividing the total amount of the order by the number of test days initially earmarked for completion of the Service in the corresponding schedule. Compensation shall be cumulative in the event of successive postponements to the Service starting date. The corresponding sums shall be added to the total amount of the new order issued on the basis of a new schedule of operations to be agreed by the Parties. In the event of the Service Provider being able, at his own initiative and depending on his functional and organisational possibilities, to organise specific corrective measures to prevent the schedule for the Service from being affected, only the cost of setting up such measures shall be passed on to the Client, this extra cost naturally coming on top of the amount of the order.

4.2. Suspension of the Service
4.2.1. If, after T0, the Service is stopped and then restarted, for a reason that cannot be directly ascribed to Eurailtest (or its Sub-Contractors), no claims for compensation of any kind may be submitted to Eurailtest.

4.2.2. Other than in the event of a fault on the part of Eurailtest (or one of its Sub-Contractors) or in the event of force majeure, compensation corresponding to the number of workdays lost shall be legally applied by Eurailtest under the conditions set out in Article 4.1.2.

4.3. Overrunning the date set for the end of the Service (TZ)
4.3.1. If the Service is not completed by the prescribed date for a reason that cannot be directly ascribed to Eurailtest (or its Sub-Contractors), no claims for compensation of any kind may be submitted to Eurailtest. If such should be the case, Eurailtest shall not be bound to pursue the Service.

4.3.2. In the event of the Service Provider agreeing to continue with the Service, the Parties will have to agree on a new schedule, notwithstanding the fact that Eurailtest will be entitled to invoice the costs and expenses incurred at the time of this event, in accordance with the principles set out in Article 6 below, and/or those connected with the introduction of specific corrective measures to avoid or minimise the repercussions on the schedule for the Service concerned.

5.1. If the Service is cancelled for a reason that cannot be directly ascribed to Eurailtest (or its Sub-Contractors), no claims for compensation of any kind may be submitted to Eurailtest.

5.2. Other than in the event of a fault on the part of Eurailtest (or one of its Sub-Contractors) or in the event of force majeure, compensation shall be legally applicable depending on the amount of advance noticed given to Eurailtest:
– more than 60 calendar days before T0: Eurailtest shall be not be entitled to any compensation,
– between 15 and 60 calendar days before T0: 50% of the value of the part of the order affected by the cancellation (net of taxes),
– less than 15 calendar days before T0: 80% of the value of the part of the order affected by the cancellation (net of taxes).
Compensation shall be cumulative in the event of successive cancellations of the Service.

5.3. Serious misconduct on the part of either of the parties (basically, substantial failure on the part of Eurailtest and/or the Sub-Contractor in executing the contract, failure by the Client to pay for the price of the Services) may result in the contract being rightfully terminated, notwithstanding any compensation due under the rules of common law for the prejudice suffered.

At all events, the cost of services already rendered and costs already incurred by the Service Provider on the date when the event occurs shall remain due (rescheduling costs, non-refundable advance payments made to suppliers, respective fees and/or costs involved by subcontractors etc..) on top of the compensation for which provision is made in Articles 4 and 5.

In the event of failure to obtain or suspension of authority to operate on the lines of the railway network, the Contract shall be automatically suspended, notwithstanding the terms of Article 4 of these general conditions and independently of any eventual faults in the process for obtaining the said authority.

8.1 Admissibility
Foreclosure: If, within six months of submission of the report, the Client fails to report any anomalies in relation to the subject of the service, by registered letter with advice of receipt, he shall forfeit his right to take action against Eurailtest.
Period of limitation: Any action taken against Eurailtest in relation to its service must be lodged within a period of one year from the submission of the concluding report. Action taken after this date will not be receivable as it would fall outside the period of limitation.

8.2. Limitations as regards liabilities
In all cases where Eurailtest’s liability may be involved in whatever capacity possible, either for reasons pertaining to its staff or its Sub-contractors, any compensation that Eurailtest may be expected to pay shall be limited to repair of material damage and shall exclude all other damage and/or prejudice without exceeding a maximum of €100,000 or the legal or statutory limit applicable to its Sub-contractors or that applicable to the event involving Eurailtest’s liability, the lowest of these limits applying.

8.3 Guarantee
In all cases where Eurailtest’s liability may be at issue and/or where it may be held liable for reasons due to the Sub-contractor, this latter may, at the request of Eurailtest, replace Eurailtest in taking any amicable and/or protective measures. The Sub-contractor shall also guarantee to hold Eurailtest harmless in the event of conviction, both in relation to the parties concerned by the contractual operation and in relation to third parties.

8.4. Force Majeure
Notwithstanding terms stipulated by article 1148 of French Civil Code, Force majeure shall be understood, in particular, to mean failure to obtain or suspension of the authority to work trains on the lines of the railway network (other than in cases where such failure or suspension is due to a fault ascribable to the Service Provider, its Sub-Contractors or the Client in the process of obtaining such authority).

The term “insurance certificate” shall be taken to mean the certificate issued by the insurer stating what is insured, the nature of the insurance and the amount of the guarantees.
Before the start of the tests, the parties (Client, Eurailtest, the Sub-contractor) must exchange copies of the civil liability insurance certificates they possess.
Any item on which the service is to be conducted and/or which is necessary for the service must be covered by accident insurance that extends to the damage to which the particular item is exposed, while the possession and guarantee conditions of this insurance shall be stipulated in the special conditions. The party taking out the insurance shall send the corresponding insurance certificate to the other party. On signature of this accident insurance, the Client and Eurailtest shall both be considered policy holders and the insurer shall renounce all rights to take action against the insurers of the policy holders.

10.1 Payment deadlines and penalties
The price (net of taxes) of the service provided by Eurailtest shall be stipulated in the official order and/or in the special conditions as shall details of the payment schedule and conditions. In the event of the Client changing the schedule for the services, invoices will be drawn up on the basis of the rates in force at Eurailtest at the time the services are actually performed. Services are to be paid for immediately upon reception of the invoice, without discount, at their place of issue. When, exceptionally, a payment schedule has been agreed in the special conditions, all part-payments shall be allocated in the first instance to the non pre-emptive part of the amounts receivable. Payment by compensation shall not be allowed. Failure to pay a single instalment shall render the schedule of payments invalid, the balance thus becoming immediately payable, even in the event of acceptance of commercial bills, no formalities being required in such cases. Penalties shall be raised in cases where the sums payable are settled after the date of payment appearing on the invoice. The Client shall be liable to pay Eurailtest interest on late payments in the event of non settlement of the sums due at the payment date set. Penalties for late payment shall be legally due from the first working day following the payment date shown on the invoice concerned, without it being necessary for a reminder to be issued. The rate to be used for calculation of these penalties will be the interest rate applied by the European Central Bank to its most recent refinancing operation, plus ten (10) percentage points. However, the rate applied cannot be less than three times the legal date of interest in accordance with the provisions of Article L 441-6 of the Commercial Code. Invoices for interest on late payments shall be payable on receipt. The amount of such interest shall be calculated as follows:

I=M×T×(N ⁄ A)

M: represents the amount including taxes settled in arrears;
I: represents the amount of interest for late payment;
T: represents the interest rate;
N: represents the number of days by which payment is late between the effective payment date and the payment deadline + one (1) day;
A: represents the number of days in the calendar year.

In addition to these penalties for late payment, a flat rate of 40 € shall be legally due to meet recovery costs, in accordance with Article D441-5 of the French Commercial Code.

10.2. Taxes deducted at source
Any amounts due to Eurailtest by virtue of the Contract shall be paid in full, whatever the taxes that may be deducted at source.
Under these circumstances, if it is impossible to avoid such deductions, the Client will have to increase the amounts payable to Eurailtest in the proportions necessary to ensure that Eurailtest will, at all events, receive the amount agreed in the Contract, even after deduction of the corresponding sums.

10.3 Changes in the taxation system
The price situated in the Contract shall be calculated on the basis of all taxes, duties, levies or charges, of whatsoever nature (hereafter referred to as taxes) in force at the date on which the Contract comes into force.
If any changes were to occur by virtue of an Act, Decree, Regulation, Convention or any other tax-related provisions (increase or decrease in the rate of taxation applicable or new legislation or tax agreement that may come into force or cancellation of tax provisions or changes in the interpretation or application of the tax or tax convention conditions applicable), that were or should have been applied to Eurailtest or its Sub-Contractors with regard to execution of the Contract, a fair adjustment will be made to the contractual price, in order to make full allowance for such changes by an addition to the contractual price.

Whatever the capacity in which Eurailtest is acting, the client shall expressly grant it a conventional right of pledge entitling it to keep and have general and permanent preferential rights over all materials, goods, securities and documents in Eurailtest’s possession (concluding report, etc.) and this as a guarantee against all outstanding amounts payable (invoices, interest, expenditure incurred, etc.) to which Eurailtest should be entitled from the client, even those pre-dating or totally separate from the operations being performed in relation to the said materials, goods, securities and documents.

All information exchanged in the course of the service, in particular the Client’s documents and information and tat concerning the know-how of Eurailtest and its agents shall be confidential in nature. Neither the Client nor Eurailtest shall be entitled to pass on information to third parties without the prior written consent of the other party, and this for a period of five years. Eurailtest shall not be able, unless duly forced by law, to divulge the results of tests to third parties without the Client’s consent. The Client’s documents stored by Eurailtest to ensure the traceability of the work done (statutory requirements, COFRAC or ISO 9000) shall be subject to the same non-disclosure clauses.

All the information, documents, reports, test data and other data, even partial, and the corresponding intellectual property rights, in particular reproduction, adaptation and translation rights, shall be the property of the Client. The Client shall recognise and accept, without restriction or reservation, that Eurailtest retain ownership of all the intellectual property rights pertaining to the technical elements and the know-how necessary to perform the service agreed under this contract. The right granted shall not, under any circumstances, constitute permission for the Client to alter the information, documents, or test data appearing in the report thus drawn up by Eurailtest. The Client shall recognise and accept, without restriction or reservation, that Eurailtest may be required, on a confidential basis, to send the report with all the data it contains to anybody, the role of which is to ensure compliance with a quality process, COFRAC for example, in accordance with European standard ISO EN17025, and in the event of the body concerned ordering an audit.
The document concluding the service (report or other) shall only become the property of the Client once the latter has paid the full amount of the Eurailtest service.
Reports may be produced in electronic format (soft copy) and digitally signed. At the Client’s request, hard copies of these reports can be provided, the electronic version remaining the sole authentic version. The Client will have to bear the cost of producing and sending these hard copy versions. The Client may use the information contained in the report or copy the report in full as he sees fit, subject to payment for the full service. With the prior written consent of Eurailtest, the Client may publish excerpts from the reports. Where communicating the full text of the reports is concerned, the Client shall be entitled to publish such texts freely, once they have been validated by Eurailtest.

French law shall apply. In the event of any claims or disputes, the sole authority shall be the Paris Commercial Court, even in the event of multiple defendants or guarantee proceedings.

¹ Example of a calculation:
Assuming that:
TA = date on which the client notifies Eurailtest of postponement
Duration of the service scheduled = 15 calendar days
Number of calendar days of postponement (counting from T0 therefore) = 10
No work is conducted at weekends.
If TA = T0 – 50, Eurailtest shall have the right to demand compensation equal to 50% of the sum for the 8 days affected by postponement.
If TA = T0 – 10, Eurailtest shall have the right to demand compensation equal to 80% of the sum for the first 5 days affected by postponement and to 50% for the following 3 days.