General Conditions

General Terms and Conditions for the Purchase of Goods and Services by Carbon Process & Plant Engineering S.A. ("CPPE S.A.")

Article 1- Scope
1.1 These General Terms and Conditions (the “Conditions”) for the Purchase of Goods and Services (the “Goods”) by CPPE (“CPPE”/the “Purchaser”) shall apply exclusively and without exception to every Purchase Agreement of Goods (The “Contract”) to be signed by CPPE with any person or entity (the “Supplier”) from whom CPPE purchases the Goods.
1.2 The Conditions shall supersede, without exception, any and all of the Supplier’s conditions of quotation, acceptance, purchase and/or supply, conditions which are eventually implied by trade, custom, practice or course of dealing.
1.3 Unless expressly approved by CPPE in writing, any additional or conflicting terms and conditions contained in, attached to or referred to in the Supplier’s documentation or other prior or later communication from the Supplier to CPPE shall have no effect on the purchase of the Goods and are expressly rejected by CPPE.
1.4 In the event of any conflict between the provisions of the conditions and the provisions of any Purchase Order, the provisions of the Purchase Order shall prevail.


Article 2 - Goods
2.1 The Goods to be produced and delivered/ to be rendered (below only mentioned as delivered) by the Supplier are detailed in the Purchase Order as defined under Article 3.
2.2 The Purchaser may modify, replace or update the Specifications or choose other specifications for the Goods, if specific circumstances, such as market conditions or legal developments, so require. If the Purchaser requests such alterations in the Specifications, the Supplier shall immediately inform the Purchaser of the potential change in price/cost to be agreed upon prior to the implementation of the Purchaser’s request.
2.3 Drawings, descriptions and technical documents supplied by the Purchaser to the Supplier for the manufacture of the Goods or part thereof shall remain the property of the Purchaser. They shall not, without the Purchaser’s prior approval in writing, be used by the Supplier for any purposes other than for its internal use, except for any sub-contractor(s) as and when involved in connection to a quotation or a delivery to the Purchaser, nor may they be given out or disclosed to any other third Party.
2.4 In the event that any of the materials used by the Supplier in manufacturing the Goods become unavailable, The Supplier shall identify one or more source for, and propose to the Purchaser alternative materials for use in the making of the Goods. The Purchaser shall, at its sole discretion, determine whether the use of such alternative materials is acceptable, and whether an adjustment to the Price or other terms shall occur as a result of such a change.
2.5 It is agreed that the Supplier shall manufacture Goods for the Purchaser’s service requirements for a period of 10 (ten) years after the Purchaser has terminated regular purchases of the Goods from the Supplier, at reasonable terms and conditions as to be agreed between the Parties.


Article 3 - Purchase Order/Conclusion of a Contract
3.1 The Purchaser shall issue to the Supplier a written Purchase Order for the Goods (the “Purchase Order”). The Parties may also agree on certain forms of placing Purchase Order, e.g. via e-mail.
3.2 Each Purchase Order shall indicate: (a) the Goods to be delivered; (b) the quantity of Goods; (c) the place of delivery, if it is different than the Purchaser’s manufacturing plant; and (d) the delivery schedule, the date of delivery or the period of time within which the Supplier shall deliver the Goods. Unless otherwise stated the prices on the Purchase Order shall exclude Value Added Tax or any other applicable taxes.
3.3 When the Supplier receives a Purchase Order, they shall indicate in writing within 8 days from receipt whether they accept the Purchase Order or not.
3.4 The conclusion of a binding contract between the Purchaser and the Supplier is achieved by the signature by the Parties of the Purchase Order and the Conditions attached thereto (“the Contract”).


Article 4 - Quality of the Goods

4.1 The Supplier shall qualify as, and maintain its status as, an acceptable Supplier in compliance with the Generally Accepted Quality Systems requirements. The Supplier shall adhere to the terms and conditions set forth in the latest version of these requirements, which shall be made available to the Supplier.
4.2 In addition, the Purchaser shall have the right to enter into the Supplier’s manufacturing facilities, upon reasonable notice, in order to inspect the Goods covered by the Contract. Such inspection shall not, however, constitute the Purchaser’s acceptance of any work-in-process or finished Goods.


Article 5 - Price

5.1 The purchase price of the Goods (the “Price”) shall be free of charge and CPPE shall only be obliged to pay for the same if it has agreed to do so in writing.
5.2 The Price shall include all the costs and charges of transportation, loading and unloading, insurance, etc. which are required for delivering the Goods to the place of delivery as defined in the Purchase Order. Unless otherwise stated in the Purchase Order, the Price shall include all applicable taxes whether or not required by law to be collected by the Supplier from the Purchaser.
5.3 The Price to be offered by the Supplier to the Purchaser shall not exceed those prices that the Supplier shall offer to third Parties for similar Goods manufactured by the Supplier for other Purchasers, in the same or in smaller quantities.
5.4 The Supplier agrees that it shall identify all cost elements in its total supply chain with the objective to change, reduce or eliminate those cost elements which prevent it from achieving the best overall Price.


Article 6 - Invoices/Payment

6.1 Invoices shall be expressed in euro and shall include all data and supporting documentation requested by the Purchaser. The invoices shall meet all applicable tax laws and set out the value added tax separately if any, Purchase Order number and each item of Goods delivered.
6.2 Unless otherwise agreed in writing, the Supplier shall invoice the Purchaser at the end of each month for the Goods delivered in that month.
6.3 The invoices shall be submitted to the address of the Purchaser stated in the Purchase Order.
6.4 The Supplier shall provide the Purchaser with any further information or particulars as the Purchaser may reasonably request in the Purchase Order in order to substantiate an invoice delivered by the Supplier, but no such request shall prejudice or delay payment of the amount due in respect of that invoice.
6.5 The Purchaser shall pay each undisputed invoice within 30 days of the later of (a) receipt of the correctly rendered invoice, and (b) delivery of the Goods or acceptance of performance by CPPE. Notwithstanding the foregoing, any payment otherwise due on a Saturday, Sunday or public holiday (as applicable to the delivery location) shall be due on the following business day. Payment shall be considered to be made when payment by electronic funds transfer is initiated by CPPE.
6.6 The Purchaser may, without notice to the Supplier, set-off at its sole discretion any payment obligation owed by the Supplier to the Purchaser or its affiliates under the Contract and/or under any Contract, against any obligation (whether or not matured) owed by the Purchaser to the Supplier or its affiliates, regardless of the place of payment or currency of the obligation. Such receivables payable to CPPE from the Supplier shall inure to the benefit of CPPE’s affiliates as joint and several creditors. The same shall apply to rights of retention and other defences and exceptions.
6.7 Payment to the Supplier shall not be construed as either acceptance or agreement by the Purchaser that the Goods conform to the terms and conditions of the Contract.


Article 7 - Delivery

7.1 The Supplier shall, prior to delivery and in a timely manner, provide CPPE with all necessary product information especially those with respect to product composition and shelf life/service life including but not limited to safety data sheets, processing advice, labelling regulations, assembly instructions, workers' protection measures as well as any amendments of the foregoing.
All information including drawings and other materials which CPPE requires for using, assembling, operating, servicing or repairing the Goods shall be provided to CPPE by the Supplier in good time but latest upon delivery without any charge and without CPPE having to request the same.

Goods shall be delivered by the Supplier at the time and in the quantities as stated in the Purchase Order, unless otherwise agreed between the Parties. All Goods shall be delivered duty paid (in the meaning assigned to it by Inco terms 2000 as applicable from time to time) to the place of delivery and in accordance with any specific instructions specified in the Purchase Order.

The Supplier shall not deliver the Goods in instalments or provide partial performance without CPPE’s prior written consent. Where it is so agreed, failure by the Supplier to deliver any one instalment or provide partial performance on time or at all or any defect in an instalment or partial performance shall entitle CPPE to the remedies set out in Section 17.

7.3 Without prejudice to any other rights or remedies CPPE may have for late delivery or performance, the Supplier shall immediately inform and notify the Purchaser in writing via facsimile or email of its inability to comply with any of the delivery time(s). The Supplier shall promptly take the necessary measures in accordance with the Purchaser’s instructions to mitigate the loss and costs that may be incurred by the Purchaser due to the failure to deliver the Ordered Goods. The Supplier shall further specify the reasons for and duration of the expected delay and the estimated delivery schedule. The Purchaser shall have the right to require Goods to be delivered to the Purchaser by airfreight or by any other suitable means of urgent delivery if the Supplier fails to meet an agreed delivery date; in which event the Supplier shall be liable for all such reasonable freight charges including the costs of insurance against the risk of resultant losses. The Purchaser shall only accept liability for payment of such additional costs in respect of delivery and/or manufacturing costs where such additional costs result from a default by the Purchaser and where the Purchaser’s prior written consent was obtained before incurring such costs.
7.4 In the event that performance by the Supplier is subject to documents or information to be provided by CPPE, the Supplier may claim in its defence of its late performance that documents or information required from CPPE have not been provided only if it has not received such documents or information within a reasonable period despite having sent CPPE a reminder.

If a delivery delay is caused by any circumstance of “force majeure” as defined in article 21 or by any act or omission by the Purchaser, the delivery time shall be extended by such period as is reasonable under the circumstances. This also applies when a delivery time which has been extended under this paragraph cannot be adhered to for the same reason.

The Purchaser may require the Supplier to participate in Just in Time, Line Side Stocking Programs and any other specific delivery arrangements.

7.6 Deliveries in excess of quantities specified by the Purchaser may be returned to the Supplier. The Supplier shall at its own cost withdraw the surplus no later than at a date specified by the Purchaser. The Supplier shall pay the Purchaser for all return handling and transportation expenses. However, the Purchaser reserves the right to accept, at its sole discretion, in whole or in part, any Goods delivered in excess of those specified by the Purchaser and may, but shall not be obliged to, make such payment as the Purchaser considers appropriate in respect of the excess Goods. The Purchaser shall not be obliged to give notice to the Supplier of its acceptance or rejection of any Goods delivered in excess of those specified.
7.7 In the case of short quantities in deliveries, the Supplier shall at its own cost, supply the shortage no later than at a date as specified by the Purchaser.
7.8 No Goods delivered under the agreement(s) with the Supplier earlier than the date for delivery set out in the Purchase Order shall be paid for or accepted by the Purchaser unless the Purchaser notifies the Supplier of its intention to accept the same. Any Goods which are not accepted by the Purchaser shall remain at the Supplier’s risk and the Purchaser may immediately return them to the Supplier or store those Goods at the Supplier’s risk and expense.
7.9 Upon the delivery of Goods, the Supplier shall hand over, free of charge, all of the documents and manuals related to the Goods which are required by law. The Supplier shall provide The Purchaser with all necessary information and documentation in their possession or control relating to the Goods supplied to the Purchaser and required in order to comply with applicable customs, product marking, country of origin, and other laws.


Article 8 - Activities at CPPE’s Jobsite

8.1 If, in the fulfilment of the Supplier’s obligations under the Contract, the Supplier and/or Supplier Personnel are required to perform (a) services, or (b) any activities on the Jobsite (as defined below) ((a) and (b) (collectively “Activities”), the Supplier shall take all necessary precautions to prevent the occurrence of any accidents, injury or damage to any person or property during such Activities.
8.2 In addition and to the fullest extent permitted by law, the Supplier shall, during the execution of all Activities, ensure that it and all Supplier Personnel comply with (a) all applicable laws and regulations including but not limited to those relating to environmental protection, health and safety, accident and fire prevention, transport, waste disposal and management and industrial safety; (b) CPPE’s safety policies, rules and regulations in force at the premises or industrial area where Activities are to be performed (the “Jobsite”); (c) all applicable laws related to the handling of hazardous materials and, if and to the extent the Supplier handles hazardous materials pursuant to any Contract, the Supplier shall maintain an effective management system in relation to environmental protection and the handling of such hazardous materials. If CPPE notifies the Supplier of a breach of (a), (b) or (c) above by any Supplier Personnel, the Supplier shall at CPPE’s request take all necessary measures including forbidding the Supplier Personnel guilty of such breaches from entering the Jobsite.
8.3 To the extent that its performance of the Contract generates waste, whether at the Jobsite or otherwise, the Supplier shall recycle or remove such waste at its expense.


Article 9 - Transfer of Title and Risk of Loss

  Title to and risk of loss or damage to the Goods shall pass from the Supplier to the Purchaser upon the acceptance by the Purchaser of the Goods. The Supplier shall be liable for loss of or damage to the Goods even after the risk has passed to the Purchaser if the loss or damage is due to an act or omission of the Supplier.


Article 10 - Acceptance of the Goods

10.1 All Goods shall be received subject to the Purchaser’s prior right of inspection and rejection.
10.2 The Purchaser shall have a reasonable time, but not less than 14 days after delivery, to inspect delivered Goods prior to accepting the Goods.
10.3 The Purchaser shall accept only those Goods which are conform to the Contract and the Purchase Order.
10.4 Payment for the Goods prior to inspection shall not constitute an acceptance thereof.
10.5 If, as the result of the receiving inspection, Goods are found to be non-conforming in terms of Specifications, the Purchaser shall notify the Supplier thereof, and the Supplier shall, at its own cost, withdraw the non-conforming Goods no later than the date specified by the Purchaser and shall replace them or properly re-work them at its own cost no later than the date specified by the Purchaser.
10.6 The Purchaser’s failure to inspect the Goods or to properly inspect the Goods or to notify or to properly notify and/or give timely notification to the Supplier of any defects, be it in quantity, specifications or otherwise, or of any quantity deviations, shall not relieve the Supplier of any of its obligations hereunder or under the applicable law.


Article 11 - Warranty

11.1 The Supplier warrants that the Goods shall: (a) correspond with their description and any applicable specification that is agreed between the Supplier and CPPE; (b) be of satisfactory quality and fit for any purpose held out by the Supplier or made known to the Supplier by CPPE expressly or by implication, and in this respect CPPE rely on the Supplier’s skill and judgment; (c) be delivered with good and marketable title and free from liens or encumbrances, and (d) be free from defects in design, material and workmanship and remain so for 24 months after acceptance by CPPE, latest 36 months after delivery (the “Warranty Period”). This Warranty Period shall also apply to any reworked, repaired or replaced Goods; (e) comply with any applicable safety standards under the applicable statutory and regulatory requirements; and (f) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, registration, packaging, storage, handling and delivery of the Goods in respect of services, the Supplier warrants that they shall be performed: (a) with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade; (b) using only employees, agents, sub Suppliers including individuals that the Supplier, its sub-Suppliers, vendors, carriers or other agents engage in relation with the performance of the Supplier’s obligations (hereafter collectively the “Supplier Personnel”) who are suitably skilled and experienced to perform the tasks assigned to them; and (c) using the best quality goods, materials, standards and techniques. The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.
11.2 Where applicable, the Supplier warrants that it has all the necessary authorisations, permissions and licences for the sale and shipment of hazardous material (as defined by applicable laws) and that the sale (including the labelling) of the same shall be carried out in accordance with the applicable laws.
11.3 CPPE will inspect the Goods only for the purpose of identifying obvious external damage or obvious deviations in terms of specifications and quantity. If CPPE considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings in Section 17.1, CPPE shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
11.4 The Supplier’s obligations and liabilities under the Contract shall apply notwithstanding: (a) any review or clearance provided by CPPE; (b) the provision of items or information by CPPE; (c) any assistance provided by CPPE to the Supplier Personnel; (d) payment for the Goods; and (e) any right CPPE are entitled to exercise under this Contract including a right to inspect and audit.
11.5 The Supplier shall, at CPPE’s request and costs, do or procure to be done all such acts and execute or procure the execution (as a deed or otherwise) of all such documents as may from time to time be necessary in CPPE’s opinion to give full effect to a Contract and to vest in CPPE the full benefit of the assets, rights and benefits to be transferred to CPPE under a Contract.


Article 12 - Product Liability

12.1 It is agreed that the Supplier shall enter into and maintain adequate product liability insurance for the Goods supplied by it to the Purchaser (and wherein the Purchaser shall be named as an additional insured party).
12.2 In the event of a third party product liability claim asserted against the Purchaser, caused by Goods delivered by the Supplier to the Purchaser, the Supplier shall defend, indemnify and hold the Purchaser harmless if so requested by the Purchaser from and against and in respect of the full number of any of such liability claims.
12.3 In the event of a third party product liability claim asserted against the Supplier for Goods delivered by the Supplier to the Purchaser, the Purchaser shall in no event be liable to the Supplier for any damages. The Supplier shall indemnify the Purchaser for any and all damages payable to third Parties pursuant to applicable product liability or similar laws and all related costs and losses.
12.4 At the Supplier’s request, the Purchaser shall promptly provide access to its records of product liability claims relating to the Goods. The Supplier has the right to review and copy such records, and to require the Purchaser, at the Supplier’s cost, to prepare and provide reports or analyses of the quality, reliability, performance, or safety of the Goods, and/or complaints, actions or claims relating to the Goods. The Supplier shall retain such records, reports and analyses as required by the applicable laws or for at least 10 (ten) years, whichever is longer.


Article 13 - Termination

13.1 Either Party may terminate the Contract at any time by giving 30 days prior written notice to the other Party.
13.2 Either Party may terminate the Contract, effective immediately, by giving notice in writing without liability to the other Party if the other Party is in material breach of the Contract and, if such breach is remediable, such breach has not been remedied within 15 days of the written notice. Material breaches by the Supplier shall include: (a) refusal or failure to make deliveries of the Goods in whole or in part covered by any applicable Purchase Order; (b) failure to perform any other provision of any applicable Purchase Order; or (c) failure to make progress so as, in the reasonable opinion of the Purchaser, to endanger the performance of any applicable Purchase Order in accordance with its terms and does not cure such failure within the time period after receipt of notice pursuant to this section from the Purchaser specifying such failure.

If the Supplier is in default, the Purchaser may recover from the Supplier damages resulting from such default, including the reasonable costs actually incurred to relocate the work to an alternate source and to purchase the completed Goods at the Price and the work-in-process and raw materials at the Supplier’s actual cost.

If the Purchaser is in default, the Supplier may recover from the Purchaser damages resulting from such default including the Price for completed Goods and the cost of work-in-process and raw materials, and the cost of un-reimbursed and un-amortized research and development, capital equipment, properties and supplies that are unique to the Goods.

The Purchaser may further recover any other damages or costs as a result of a breach of this Agreement by the Supplier, such as loss of profits and market share, damage to brand value, punitive damages, or other general or indirect damages.

13.4 The Purchaser may terminate the Contract without liability and with immediate effect by serving a written notice on the Supplier if the Supplier: (a) becomes insolvent or bankrupt, is placed into administration, receivership or liquidation, commences proceedings to be wound up, enters into any voluntary arrangement with its creditors, or on the occurrence of any similar event according to the laws of its domicile; (b) undergoes any change in its ownership or disposes of all or a substantial part of its business or assets (other than for the purposes of a legitimate reorganisation), without the Purchaser’s prior written consent, which consent shall not be unreasonably withheld or delayed (provided that the Purchaser may withhold such consent if it does not receive adequate evidence of the Supplier’s ability to continue to perform its obligations in accordance with the terms of the Contract).
13.5 If any Purchase Order is pending at the time of the termination or expiration of any Contract signed by the Parties, the Purchaser shall have the right, at its sole discretion, to cancel any such Purchase Order or to have it completed by the Supplier. If the Purchaser elects to cancel the Purchase Order, the Supplier shall immediately terminate all work under the Contract. If the Purchaser elects to have the Purchase Order completed, this Agreement shall continue to apply to that Purchase Order.
13.6 If the Supplier possesses completed Goods, Goods in the process of manufacture, or tooling used exclusively to manufacture the Goods, the Purchaser shall have the option to purchase the same at reasonable prices, as shall be agreed between the Parties.
13.7 At the termination of the Contract, the Supplier shall immediately return all Confidential Information belonging to the Purchaser, or destroy it and certify such destruction.
13.8 In case of termination all other provisions of the Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.
13.9 Any Work shall become and remain CPPE’s property upon its creation, regardless of Supplier’s characterisation of such documents, and Supplier shall furnish such work to CPPE at the earlier of (a) termination of the Contract or (b) CPPE’s request.


Article 14 - Quality Assurance


The Supplier shall maintain an internationally-recognised quality assurance system, for example, a system in accordance with the standards published by the International Organisation for Standardisation. CPPE reserves the right to audit the Supplier’s quality assurance system and the Supplier shall provide CPPE with all reasonable assistance and access.


Article 15 - Sub-Contractors


The Supplier shall not subcontract any of its obligations under the Contract without CPPE’s prior written consent. The Supplier shall subject the approved Sub-Contractors to the same obligations as those owed to CPPE under the Contract and ensure compliance with such obligations by its Sub-Contractors. It shall be liable for all acts and omissions of the Sub-Contractor.


Article 16 - Compliance


The Supplier shall comply with all anti-corruption laws that are applicable to the contractual relationship between CPPE. Without prejudice to any other rights or remedies CPPE may have, any breach of the first sentence of this Section 17.2 by the Supplier shall entitle CPPE to terminate the Contract immediately.


Article 17 - Remedies and Indemnification


If the Goods are not delivered or performed on or by the date they are due, do not comply with the undertakings set out in these Conditions or are defective in any other way, then, without limiting any of our other rights or remedies, CPPE shall have the right to any one or more of the following remedies, whether or not CPPE has accepted the Goods : (a) to terminate the Contract; (b) to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense; (c) to require the Supplier, at its own expense, to rework, repair or replace the rejected Goods; (d) to require the Supplier to provide a full refund of the rejected Goods, if payment has already been made; (e) to recover from the Supplier any costs incurred by CPPE in obtaining substitute Goods from a third party or having the defect remedied (whether by CPPE or a third party); (f) to claim damages for any other costs, loss or expenses incurred by CPPE which are in any way whether directly or indirectly attributable to the Supplier’s failure to carry out its obligations under the Contract; and (g) to apply a penalty of 0,5 % of the total contract price for each commenced week of delay, up to a maximum of 5 % of the total Contract price.


The Supplier shall keep CPPE, its affiliates and its respective officers and employees (the “Indemnified Parties”) indemnified in full from and against all claims, demands, liabilities, costs, expenses, damages and losses (whether direct or indirect), including any interest, penalties and legal and other professional fees and expenses, awarded against or incurred or paid by the Indemnified Parties as a result or in connection with : (a) any claim for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the supply or use of the Goods; (b) any claim by a third party arising out of or in connection with the supply or use of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier or Supplier Personnel; and (c) any claim by a third party for death, personal injury or damage to property arising out of or in connection with defects in the Goods, to the extent that the defect is attributable to the acts or omissions of the Supplier or Supplier Personnel.


Article 18 - Liability


Regardless of the cause of action, CPPE, its affiliates and its respective officers and employees shall only be liable for any loss or damage incurred by the Supplier in connection with the Contract to the extent that the same is caused by CPPE’s gross negligence or wilful misconduct. CPPE, CPPE’s affiliates and CPPE’s respective officers and employees shall under no circumstances whatsoever be liable for any loss of profit or any indirect or consequential loss arising under or in connection with the Contract. Nothing herein or in a Contract shall limit either party’s liability for (a) death or injury caused by negligence or the negligence of a party’s officers or employees; (b) fraud or fraudulent misrepresentation; or (c) any matter in respect of which it would be unlawful to exclude or restrict liability.


Article 19 - Insurance


During the term of the Contract and the Warranty Period, the Supplier shall maintain in force with a reputable insurance company professional indemnity insurance, product liability insurance and public liability insurance on terms customary to the industry but in any event with a minimum coverage of EUR 10 million per occurrence (or such other amount as agreed in writing) to cover such heads of liability as may arise under or in connection with the Contract. The Supplier shall provide documentation of its insurance coverage upon CPPE’s request.


Article 20 - Confidentiality


The Supplier shall keep strictly confidential any information, knowledge and tangible materials including but not limited to technical and other data, measured values, techniques, business experience, business secrets, know-how, drawings and other documentation (the “Confidential Information”) received, whether directly or indirectly, from CPPE or its affiliates or disclosed in any other way by CPPE on its behalf. The Supplier shall not disclose Confidential Information to third parties and shall use it only for the purpose of performing its obligations under the Contract. The Supplier shall return all Confidential Information delivered to it in a tangible form such as documents, samples, specimens or the like promptly upon CPPE’s request without retaining any copies or notes. In addition, it shall, upon CPPE’s request, delete its own notes, compilations and evaluations containing Confidential Information without undue delay and shall confirm this to CPPE in writing. CPPE retains ownership, as well as all Intellectual Property Rights, in the Confidential Information.


Article 21 - Force majeure


“Force majeure” shall mean any unforeseen event which is beyond the reasonable control of the Parties, or any foreseeable occurrence the consequences of which may not reasonably be avoided, that arises after the date of signature of the Contract and which prevents performance of the Contract, in whole or in part, by either Party.

21.2 If an event of force majeure occurs, performance of the Parties’ obligations under this Agreement shall be suspended for the duration of the delay caused by the event of force majeure and the period of performance shall be automatically extended, without any penalty, for an equal period.
21.3 The Party claiming force majeure shall promptly inform the other Party to this effect in writing, explaining its reasons for doing so.

If an event of force majeure occurs, the Parties shall immediately consult with one another with a view to finding an equitable solution and shall use all reasonable efforts to minimise the consequences of the occurrence. If the conditions of force majeure prevail for more than 6 (six) months and the Parties have been unable to reach an equitable solution, the other party shall have the right to terminate the Contract.


Article 22 – Relationship between the Parties


None of the provisions of the Conditions shall be interpreted as indicating the intent of the Parties to form a company, association or joint venture.


Article 23 – Miscellaneous Provisions


The Conditions contain the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and replaces all prior agreements or understandings, whether written or oral, with respect to the same subject matter that are still in force between the Parties.

23.2 Any amendments to the Conditions, as well as any additions or deletions, shall be agreed in writing by both the Parties.
23.3 Whenever possible, the provisions of the Conditions shall be interpreted in such a manner as to be valid and enforceable under the applicable law. However, if one or more provisions of the Conditions are found to be invalid, illegal or unenforceable, in whole or in part, the remainder of that provision and of the Contract shall remain in full force and effect as if such invalid, illegal or unenforceable provision had never been contained herein. Moreover, in such an event, the Parties shall amend the invalid, illegal or unenforceable provision(s) or any part thereof and/or agree on a new provision, in such a way as to reflect insofar as possible the purpose of the invalid, illegal or unenforceable provision(s). Neither Party shall be liable for failure to perform under the Contract (except for the payment of any amounts due herein) if such failure is due to causes beyond its reasonable control, such as, but not limited to, fire, flood, strikes, labour disputes or other industrial disturbances, (declared or undeclared) war, embargoes, blockades, legal restrictions, riots, insurrections, governmental regulations.
23.4 Any failure or delay by a Party in exercising any right under the Conditions, any single or partial exercise of any right under the Conditions or any partial reaction or absence of reaction by a Party in the event of violation by the other Party of one or more provisions of the Conditions, shall not operate or be interpreted as a waiver (either express or implied, in whole or in part) of that Party’s rights under the Conditions or under said provision(s), nor shall it preclude any further exercise of any such rights. Any waiver of a right must be express and in writing. If there has been an express written waiver of a right following a specific failure by a Party, this waiver cannot be invoked by the other Party in favour of a new failure, similar to the prior one, or in favour of any other kind of failure.

All notices and other forms of communication required under the Conditions must be in writing and delivered or sent to the receiving Party (i) by hand through a reputable courier service, (ii) by fax with a confirmation report, or (iii) by registered mail (return receipt requested) to the address indicated in the purchase order/contract:

Any notice shall be considered to have been delivered to the receiving Party’s address on the date of delivery if sent by hand, upon confirmation if sent by fax and 3 working days following the date of mailing if sent by registered mail.

23.6 Either Party may change the address to which notices are to be delivered or sent by giving the other Party written notice to this effect in the manner set forth herein.
23.7 The Supplier may not assign, transfer, charge or deal in any other manner with any or all of its rights or obligations under the Contract without CPPE’s prior written consent.
23.8 The Supplier may not assign, transfer, charge or deal in any other manner with any or all of its rights or obligations under the Contract without CPPE’s prior written consent.
23.9 The Contract language is English. All correspondence between CPPE and the Supplier in relation to or in execution of the Contract shall be in English language.


Article 24 – Applicable Law and Jurisdiction


All issues, questions and disputes concerning the validity, interpretation, enforcement, performance and termination of the Contract and the Conditions shall be governed by and construed in accordance with Luxembourg law, and no effect shall be given to any other choice-of-law or conflict-of-laws rules or provisions that would cause the laws of any other jurisdiction to be applicable.

24.2 All disputes concerning the validity, interpretation, enforcement, performance and termination of the Contract and the Conditions shall be submitted to the exclusive jurisdiction of the Courts of Luxembourg City, Grand-Duchy of Luxembourg.


Luxembourg, 01 July 2012