The present General Terms and Conditions shall govern all services and works rendered by NAVAL PROJECTS SASU to any contracting party (hereinafter “the Client”), subject to any derogatory clause contained in any specific and/or subsequent contract.
GENERAL TERMS AND CONDITIONS
1. Scope of the agreed works and services
1.1. Upon receipt of a request from the Client to perform works and services designated in its published technical specifications, Naval Projects submits a written quote offer to the Client.
1.2. The quote offer shall be deemed accepted by the Client once duly signed by the Client and returned to Naval Projects in writing.
1.3. The quote offer shall expire after 30 (thirty) days, in the absence of its unreserved acceptance by the Client.
1.4. The Client undertakes to provide to Naval Projects all necessary information and documents concerning its status and/or the identity and authority of the signatory of the quote offer. Otherwise, LH Naval Projects can hold itself not bound by the offer.
1.5. All changes or additional works and services or amendments of the original agreement will be subject to a complementary order, to be duly approved as per above.
The consequences of waiting for the Client’s acceptance of the quote offer or the complementary order, shall be borne by the Client.
2. Tariffs and Payment conditions
2.1. Naval Projects shall invoice to the Client 40% (forty) of the total quoted price upon receipt of the quote offer duly signed by the Client.
2.2. The invoice shall be fully paid by the Client within thirty (30) days from the date of its receipt.
2.3. In case of emergency works, Naval Projects may request an advance payment of the full corresponding price.
2.4. Any agreed price shall be deemed fully earned. If, for any reason and at any time, the Client requests the cancellation of the performance of the works or services specified in the quote offer duly signed by the Client, or of the emergency works, Naval Projects reserves the right to demand payment of the full agreed price, and of any damages that may result from the cancellation of the works or services.
2.5. The Client shall be responsible for the full payment to Naval Projects of the entire sums charged and all other sums due in connection with the works and services carried out, on the agreed date and for their full amount, without possible deduction of any sort. The Client irrevocably agrees to waive any right of set-off between the sums charged and any amount considered as due by the Client under a contractual or tortuous claim, which it has or may have against Naval Projects.
2.6. All sums owed to Naval Projects in connection with the works and services carried out and unpaid at their due date will be subject immediately and without necessary prior notice, to late payment interests at a rate equal to three (3) times the applicable legal rate increased of a lump sum penalty of ten (10%) of the sums owed, and of the sum of 40 Euros as per article D441-5 of the Commercial Code, without prejudice to Naval Projects’ right to claim from the Client an indemnity for any damage incurred as a result of its failure to make full payment of the sums owed to Naval Projects.
2.7. aval Projects shall be under no obligation to incur any expense, guarantee or payment, or to advance any money in connection with the works and services carried out, unless the same is previously accepted by Naval Projects on the Client demand. It is understood that any advance made by Naval Projects shall not be construed as a waiver of the provisions hereof.
2.8. Naval Projects’ tariffs are always indicated exclusive of VAT and the invoicing and payment currency is the EURO.
3. Right of lien
3.1. Irrespective of any lien granted to Naval Projects by law, the Client acknowledges that Naval Projects shall have a further contractual continuing general lien on any and all property of the Client, and all documents relating thereto, in Naval Projects’ possession, custody or control, for all sums, charges, expenses, fines, penalties (including, without limitation, attorney fees and costs), advances or damages incurred by Naval Projects of whatever nature in connection with any works or services or other transaction involving the Client, including storage accruing on any property detained under lien.
3.2. If any amount due to Naval is not paid in due time and if the payment reminder notification by Naval Projects remains unsatisfied for thirty (30) days, in this case then after ten (10) days have passed from the date the second written notice is sent, Naval Projects may sell or dispose of or deal with such property or documents as agent for, and at the expense of, the Client and apply the proceeds in or towards the payment of such sums as may be necessary to satisfy such lien. Any surplus from such sale shall be transmitted to the Client. The Client shall be liable for any deficit between the sums due and recovered by the sale and for the cost of the sale. Naval Projects shall, upon accounting to the Client for any balance remaining after payment of any sum due to Naval Projects, and for the cost of sale and/or disposal and/or dealing, be discharged of any liability whatsoever.
4. Subcontractors
Naval Projects shall be entitled to freely subcontract all or part of the works and services to any entity of its choice, but will remain liable to the Client.
5. Service providers designated by the Client.
5.1. No entity may be entrusted by the Client to undertake any service or work during the period of Naval Projects’ intervention, without Naval Projects’ prior express agreement. To this end, the Client must provide to Naval Projects all the information and documents it may request concerning the entity, the identity of its staff, the nature and time schedule of the works and services to be performed.
5.2. Naval Projects reserves the right to invoice the Client handling costs incurred to allow the achievement of the works and services entrusted to the entity designated by the Client. In the absence of any agreement in this respect, Naval Projects shall be entitled to apply a minimum rate of 15% of the invoice of the said entity, subject to any additional costs actually incurred.
5.3. Naval Projects assume no liability for any works and services performed by any entity designated by the Client.
6. Supervision of the works or services:
6.1. The Client is entitled to supervise, at its own costs and risks, the progress of the works and services entrusted to Naval Projects, subject to a minimum (twenty-four) 24h prior written request and to communicating to Naval Projects all information and documentation it may require, in particular regarding the identity and authority of the Client’s representative.
6.2. The Client shall indemnify Naval Projects of any and all loss, damage or injury sustained by any of its employees or third parties, caused by persons acting on behalf of the Client or with the Client’s consent at the premises of Naval Projects and the Client must hold Naval Projects harmless against any claims of Naval Projects’ employees or third parties.
6.3. The Client shall bear the consequences of any delay in the execution of the works and services by Naval Projects, by reason of the inspection undertaken.
7. Delivery of the works and services:
7.1. The turnaround times in the contract are for information purposes only, except where an "imperative" period (included a strict delivery date) has been specified by the Client and accepted by Naval Projects.
7.2. The starting date for the period is the day the vessel is made available to Naval Projects and is ready for works, provided that the conditions laid down in article 2 are met.
7.3.The turnaround times, even where "imperative", shall be extended automatically if the delay is due directly or indirectly to a situation that is not attributable to Naval Projects, including but not limited to, where it results from (i) any event of force majeure as defined in article 18 (ii) any modification of the contract accepted by both parties as laid down in article 1.5, (iii) any breach of the contractual terms by the Client as regards, in particular, payment for any amount due by the Client; (iv) any act or omission from the Client or any of its representatives, (v) any delay regarding the delivery of materials, equipment or services purchased by the Client to other suppliers than Naval Projects.
7.4. Unless a imperative period is agreed, Naval Projects shall not be liable for any reasonable delay in the delivery of its works and services.
7.5. Where an "imperative" period has been agreed, Naval Projects shall not be liable for damages resulting from delay unless the Client can demonstrate that the damages result directly and exclusively from a delay attributable to Naval Projects.
7.6. Naval Projects shall assume no liability for any delay resulting directly or indirectly from a situation not attributable to Naval Projects as defined in article 7.3.
7.7. The liability of Naval Projects for delay in the conditions laid down in article 7.4 and 7.5 should not exceed, in aggregate and for all contract period, three (3%) of the total contract price.
8. Taxes
8.1. In order to benefit from the VAT exemption, the Client shall provide Naval Projects with all information and documents required by the applicable laws and regulations. Failing which, the Client shall be liable in the said legal conditions.
8.2. The Client shall indemnify and hold harmless Naval Projects from any sums due and/or any liability incurred vis-à-vis any third party, by reason of its non-compliance with its tax obligations under the applicable laws and regulations.
9. Classification society
9.1. The Client is responsible for notifying the classification society of the vessel’s place of repairs and of the works being carried out, and for obtaining in due time and at its own expenses from it the relevant visas and certificates. Naval Projects shall assume no liability in this respect.
9.2. Naval Projects does not have any duty to report to the classification society.
10. Guarantee
10.1. The works and services by Naval Projects are guaranteed during one (1) year as from the date of the certificate of completion drawn on delivery, or failing which from expiration of the payment time period of the final invoice.
10.2. The guarantee is limited to the repair or the replacement of the defective part, and shall include as such only the cost of parts and labor, excluding any other costs such as those relating to disassembly, carriage…
The guarantee shall not include all direct or indirect, material or immaterial damage that the Client may suffer
10.3. The Client shall lose the right to any guarantee if it does not notify Naval Projects by registered letter with acknowledgment of receipt, , of any damage or event affecting the vessel, within 48h from the occurrence of the said damage or event.
10.4. The Client shall lose the right to any guarantee if it undertakes itself or by a third party any repair or replacement of any part, without Naval Projects’ prior approval.
10.5. The fact that the warranty can be invoked shall not constitute an admission of liability or of the misperformance of the works and services by Naval Projects.
10.6.For the equipment not manufactured by Naval Projects, the guarantee provided by the latter to the Client shall be limited to the original maker guarantee.
10.7. The guarantee shall not cover the wear and tear of the parts, nor any use not conforming with the recommendations from the supplier or Naval Projects.
10.8. All elements removed from the vessel and taken ashore shall be stored at the Client’s costs and risks and will become Naval Project’s property, should the Client fail to take delivery thereof within three months from Naval Projects’ written request in this respect.
11. Insurance
11.1. The Client must be insured and must maintain the vessel’s hull insurance and third-party liability insurance, in validity during the repairs and sea trials.
11.2. Unless otherwise agreed in writing, LH Naval Projects shall not take out any insurance for the Client’s account; where applicable the costs shall be borne by the Client.
11.3. Naval Projects has subscribed a third-party liability insurance, covering its liabilities assumed under the contract at appropriate levels.
11.4.The Client agrees to waive any claim for any material and/or immaterial damage against Naval Projects or Naval Projects’ insurers for any amount over 220 000 € and undertakes to obtain the same waiver from its insurers.
12. Custody of the vessel
During the performance of the works and services, the vessel shall remain under the physical and legal custody of the Client and/or its representative.
The Client shall assume all liabilities arising therefrom.
13. Documents
13.1.Naval Projects reserves all proprietary rights, copyrights and other industrial property rights in its documents, which must be treated as strictly confidential. Unless authorized in writing by Naval Projects, above documents may not be used for any other purpose but the fulfilment of the contract and may not be reproduced or disclosed to third parties. This non-disclosure obligation shall remain in effect beyond the termination of the contract.
13.2. If Naval Projects uses plans, documents and information provided by the Client for the performance of works and services, the Client must indemnify and hold Naval Projects harmless against any claims from third parties based on violations of copyrights, patents and other industrial property rights of third parties resulting from the utilization of such plans, documents or information provided by the Client.
14. Warranties of the Client
14.1. The Client warrants that: (a) the description of the works and services to be carried out by Naval Projects is complete and correct; (b) the equipment that could be supplied by the Client to Naval Projects in relation to the performance of the works and services is in sound condition and is fit for the requested works and services; and (c) all necessary documentation related to the works and services shall be handed to Naval Projects in due time and shall be authentic, valid, complete and accurate.
14.2 The Client shall provide a Risk Register identifying the zones, parts, equipment, tools or any element of the vessel containing asbestos, lead, formaldehyde or any other material or substance that may present risk for the human health or environment whose use could be forbidden or regulated by the applicable laws and regulations. The Client shall be liable for any damage direct or indirect caused by the presence of these materials or substances.
14.2. The Client warrants that it complies and will continue to comply during the works and services undertaken by Naval Projects with all applicable laws and government regulations related to the performance of the works and services.
14.3. The Client must advise Naval Projects in writing of any special circumstance affecting the stability or seaworthiness of the vessel.
14.4 The Client shall be liable and shall indemnify Naval Projects of any costs, damage or liability incurred by reason of any missing to the guarantees and obligations defined in this clause.
15. Sea trials
15.1. The departure, towage, pilotage and sea trials are done at the request of the Client and at its exclusive costs and risks.
15.2.The Client shall provide staff and necessary supplies (fuel, oil) for carrying out the sea trials.
15.3. Sea trials must be covered by vessel’s insurance and are subject to the Customs’ and Port Authorities’ authorization.
16. PERSONAL DATA
16.1. “Personal data” in this article has the same meaning as in the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation).
16.2. The controller of the Client’s Personal data is Ms. Florence VAREILLES. Contact with Ms. Florence VAREILLES is possible by email (f.vareilles@navalprojects.com) or by post (Quai du Petit Rang, Bureau du Port Toulon Vieille Darse, 83 000 Toulon, France).
16.3. The controller makes every effort to ensure that the Client’s processed Personal data is adequately secured.
16.4. The Client’s Personal data is collected in order to carry out the works and services ordered by the Client.
16.5. In connection with the performance of the works and services ordered by the Client, the controller may disclose the Client’s Personal data to third parties, including but not limited to subcontractors, banks, providers of IT systems and equipment.
16.6. The controller will never sell the Client’s Personal data.
16.7. The controller will keep the Client’s Personal data for as long as necessary to perform the works and services. The controller may keep the Client’s Personal data, after the completion of the works and services, to establish, assert or defend against a possible claim.
16.8. The Client has the right to request from the controller access to and rectification or erasure of Personal data or restriction of processing of Personal data or object to processing. The Client has also the right to data portability.
16.9. The Client has the right to complain to the controller for any problem related to the treatment of the personal data protection, then in case of failure to reach an amicable settlement, to the data protection supervisory authority, the Commission Nationale de l’Informatique et des Libertés (CNIL): www.cnil.fr.
17. Events affecting performance
If at any time the performance of the works or services is affected or is likely to be affected by any hindrance, risk, delay, difficulty or disadvantage of any kind, howsoever arising, included the force majeure as defined in article 18, or if at any time during the performance of the works or services, it is established that the Client did not comply with it obligations and warranties stated therein, or with applicable laws, Naval Projects may, subject to prior notice to the Client, suspend the performance of the works or services or terminate the contract if the event giving rise to this notification does not cease within a reasonable period stated in the notification. The Client shall be held liable for any damage sustained and costs incurred.
18. Force majeure
18.1. For the purpose of this clause, “Force majeure” means any event beyond the control of a Party, and which renders said Party unable to perform whole or part of its material obligations. Provided such criteria are met all together, Force Majeure includes events such as, but not limited to: foreign war, civil war, riots or popular movement, acts of terrorism, sabotage, employees strikes at the regional and national scale, lock out, natural disasters (earthquake, hurricane, volcanic eruption…), fire, explosion, epidemic. Towards Naval Projects, Force majeure shall extend to the sub-contractors and suppliers, provided the conditions above are fulfilled.
18.2. Neither Party shall be liable for any failure to perform any of its contractual obligations if and to the extent performance has been delayed or temporarily prevented by reason of Force Majeure.
18.3. In case of Force majeure, the Party that is or may be delayed in performing this Contract, shall notify the other Party without delay giving the full particular thereof (nature, expected duration and likely impact) and shall use all reasonable and endeavors to remedy the situation without delay.
18.4. Following notification of a Force majeure occurrence, the Parties shall meet without delay with a view to agreeing a mutually acceptable course of action to minimize any effects of such occurrence.
18.5 Either Party shall be entitled to terminate this Contract by notification to the other Party, if performance of Contract is prevented more than 30 (thirty) calendar days.
19. Naval Projects’ liability
19.1.Naval Projects shall only be liable to the Client for any loss, damage or expense to the extent that Naval Projects has committed a fault, gross negligence or willful misconduct in the performance of its duties, and then only for loss, damage or expense which occurs when Naval Projects has exclusive physical custody of the vessel.
19.2. Naval Projects’ liability shall be excluded in case of occurrence of any damage due to non-compliance by the Client with the provisions of article 14.
19.3. Naval Projects’ liability shall be excluded in case of occurrence of any of the following events: a) force majeure as defined in article 18; b) any inherent defect of the vessel; c) any act, breach of warranties or obligations, negligence, omission by the Client; d)any damage due to the hazardous substances defined in article 14 ; (e ) any other case provided herein .
19.4. Naval Projects shall in no event be held liable for indirect costs or consequential damage, special or punitive damages of any kind, or moral damage.
19.5. In no circumstance shall Naval Projects’ liability exceed 1/3 of the price agreed for the performance of the works or services subject of the claim.
19. Time bar
Subject to article 19.4 above, all claims of against Naval Projects shall be time-barred upon the expiry of 12 months as of the date of the certificate of completion of the works and services.
20. Applicable law and Jurisdiction
20.1. The contractual relationship between the Client and Naval Projects shall be governed by French law.
20.2. Any dispute arising between the Naval Projects and the Client shall be subject to the exclusive jurisdiction of the Commercial Court of Toulon (Tribunal de Commerce de Toulon).