• We offer our customers comprehensive, competitively priced and environmentally friendly solutions that meet their power generation and engine needs.

STATUTORY PROVISIONS

The website www.eneria.be (hereinafter the ‘Website’) is managed by Bergerat Monnoyeur nv with its registered office at Brusselsesteenweg 340, 3090 Overijse, Belgium, contact@eneria.be, VAT no. BE 0419.725.928, RPR Brussels, BNP Paribas Fortis BE85 0013 9523 8906.

Webmaster: Curd Merlo (cmerlo@eneria.be)

Terms of use for the website of ENERIA Belgium

These terms of use apply to anyone connecting to and visiting the Website (the ‘Internet User’). Gaining access to the Website and navigating the Website imply the Internet User’s immediate and complete acceptance of these terms of use.

Bergerat Monnoyeur reserves the right to alter the terms of use of the Website without prior notice and at all times. It is the Internet User’s responsibility to regularly consult this page to stay informed of any changes.

Intellectual Property

The Website and its content are the property of Bergerat Monnoyeur or subject of a user license. This applies to both the general look of the Website and to the software, the graphical elements, the databases, the design, the photos and illustrations, the texts, the drawings, the sound and all other components that together constitute the content of the Website. No content of this Website can be reproduced without Bergerat Monnoyeur’s prior written permission.

The trademarks and logos presented on the Website are registered trademarks. In particular, the Caterpillar brand is a registered trademark of Caterpillar. Any reproduction, use, imitation, addition, omission or alteration of these elements without Bergerat Monnoyeur’s and Caterpillar’s prior written permission is prohibited and is considered to be a forgery.

Hyperlinks

Links to the Website:

Any creation of a link from external internet websites to the Website without Bergerat Monnoyeur’s prior written permission is prohibited. If you wish to make a link to the Website, we request that you contact the webmaster via cmerlo@eneria.be or by letter.

Links on the Website:

The Website can contain links to other websites (‘Third-party websites’). Bergerat Monnoyeur does not have any way to control these Third-party websites, which are managed completely independently. If the Internet User uses one of these links, he/she leaves Bergerat Monnoyeur’s website. In light of the fact that Bergerat Monnoyeur has no means to control these Third-party websites, Bergerat Monnoyeur rejects any liability with respect to Third-party websites in advance, both in terms of their content and the consequences that could result from use thereof.

Content of the Website – Liability

The Website can evolve to meet the expectations of the users. For instance, Bergerat Monnoyeur can, at any time and without prior notification, alter the content of the Website and/or delete specific functions and/or services without being made liable for the consequences of these changes by the Internet User.

Any information of any nature provided on the Website is intended for informational purposes. Despite the fact that all content of the Website is provided with care, there can be no guarantees with respect to the correctness, accuracy and recent nature of the information provided on the Website. As a result, no contractual value can be directly or indirectly derived from this information in any way.

For other matters, Bergerat Monnoyeur cannot be made liable for any damage of any kind that is the direct or indirect result of using the Website, especially as a result of a virus that could damage or destroy the Internet User’s computer equipment.

Data protection

The Internet User can consult the Website without revealing his/her identity and without giving any information regarding his/her identity. Nevertheless, Bergerat Monnoyeur is automatically informed of specific information as soon as the Internet User accesses the Website. This information, such as the name of the Internet User’s access provider, the IP address of the computer or the geographical location will only be used for purely statistical purposes required for the analysis of the use of the Website.

When visiting the Website, Bergerat Monnoyeur can ask the Internet User to provide personal information, such as name, address or email address. This personal information can be used to send the Internet User additional information with respect to the products available on the Website or electronic information (newsletters) on the provision that the Internet User agrees to this. It can also be used to inform the Internet User of commercial or promotional offers with respect to the products available on the Website now or in the future. Bergerat Monnoyeur takes the greatest care in processing personal information. Personal information is treated confidentially by Bergerat Monnoyeur and is only used for the purposes for which the information was provided by the person in question. Information can be stored in one or more databases. Personal information will not be provided to third parties without the approval of the party involved. The party involved has a right to view his/her personal information.

If the Internet User wishes to receive offers from Bergerat Monnoyeur, then he/she must give permission by clicking the corresponding box at the end of every form.

Bergerat Monnoyeur is obliged to not give or sell this information to third parties. The information collected through the Website is exclusively intended for Bergerat Monnoyeur, its subsidiaries, the parent company and, if applicable, Caterpillar for which Bergerat Monnoyeur is the exclusive concession holder for Belgium and the Grand Duchy of Luxembourg.

Cookies

In order to provide the user of the Website with better services, Bergerat Monnoyeur can automatically install ‘cookies’ in the Internet User’s web browser. These cookies offer Bergerat Monnoyeur the opportunity to register navigation data on the Website. The user can reject the use of cookies by configuring the internet browser as such.

General provisions

The Website’s terms of use are subject to Belgian law. Any dispute with respect to the use of the Website will be presented to the exclusive authority of the district courts of Brussels.

General Terms and Conditions

1. SCOPE

1.1. The following conditions (hereinafter referred to as General Conditions) are applicable to every purchase of machines, engines, equipment and accessories, tools and spare parts (hereinafter separately or jointly referred to as “Material”) by Bergerat Monnoyeur NV, as well as all the activities performed by technicians of Bergerat Monnoyeur NV.

1.2. Every order or request for intervention by the customer implies the unconditional acceptance and requirement to fulfil these General Conditions, which shall take complete priority over any different unilateral document of the customer.

2. CONCLUSION OF THE CONTRACT

2.1. A quote, order form or intervention form is only definitively binding for Bergerat Monnoyeur insofar that the relevant order form or intervention form is signed by two people from Bergerat Monnoyeur, of whom at least one must be the general manager or the commercial manager, as published in the Belgian Official Journal. Furthermore, the validity of a quote is only limited to the period which is explicitly specified therein. In the absence of an explicit indication of a specific period, the validity of the quote shall in any case be limited to a maximum of one month after the date indicated on the quote.

Regardless of whether it is signed by a customer, a quote, order form or intervention form, including these General Conditions, shall be deemed to be accepted by the customer from the moment that Bergerat Monnoyeur, as commissioned by the customer, commences the delivery or repair works.

2.2 If an agreement is concluded under the condition precedent of obtaining financing, the customer should, within a period of 45 days from the order, and via registered post, provide proof that the financing has been declined by at least two banks in order to be released from its obligations towards Bergerat Monnoyeur. In the absence thereof, the condition shall be deemed to be fulfilled and the customer shall be definitively bound by the provisions of the purchase agreement.

2.3 Quotes are always drawn up on the basis of the information provided by the customer, who, by accepting the quote or the contents of the order form or intervention form, explicitly guarantees the completeness and accuracy of this information. The customer is therefore solely responsible for providing the required information and the accuracy thereof, so that Bergerat Monnoyeur is not obligated to verify the correctness of the information. If, following conclusion of the agreement between the customer and Bergerat Monnoyeur, it transpires that the information provided by the customer was incomplete, incorrect or misleading, Bergerat Monnoyeur shall reserve the right to draw up a new quote which shall completely replace the original quote. Upon receipt of the new quote, the customer shall have a period of 15 days to confirm its agreement with the new quote. The absence of a response from the customer within this period shall be considered as unconditional acceptance of the new quote. In the event that the customer declines to accept the new quote, Bergerat Monnoyeur shall have a period of two weeks to cancel the existing quote or the agreement which it proposed to modify, with immediate effect and without the customer having any right to damage compensation.

2.4 In the event that during the performance of the activities by Bergerat Monnoyeur, or during the term of the maintenance contract, major modifications occur – whether anticipated or not – which are such that the object and/ or the scope of the agreement with the customer is modified (change of scope), Bergerat Monnoyeur reserves the right to propose written modifications to the contract with the customer, including price adjustments. Upon receipt of the proposed modifications, the customer shall have a period of 15 days to confirm its agreement with the new proposed modifications. The absence of a response from the customer within this period shall be considered as unconditional acceptance of the proposed modifications. In the event that the customer declines to accept the proposed modifications, Bergerat Monnoyeur shall have a period of two weeks to cancel the existing quote or the agreement which it proposed to modify, with immediate effect and without the customer having any right to damage compensation.

2.5. The client is in agreement with the fact that Bergerat Monnoyeur communicates with him electronically. Bergerat Monnoyeur is permitted to send the client messages and communications amongst others via e-mail regarding the sale of the Material or interventions on the Material by Bergerat Monnoyeur. Bergerat Monnoyeur reserves the right to send messages via an alternative route, for instance by regular mail. In so far permitted by law, the client agrees, in case of a dispute, not to question the acceptability of the documents in support of an order, notification, communication or message via electronic mail between parties.

3. PRICE

3.1. The proposed price is dependent on the tariffs which are applied by Bergerat Monnoyeur at the time the quote is drawn up. The price is deemed to be accepted by the customer both at the time that the customer signs the order form/intervention form, and at the time of commencement of the works of delivery as specified under 2.1.§2.

3.2 The parties explicitly agree that Bergerat Monnoyeur reserves the right to charge any price adjustment from the manufacturer to the customer (specifically, without being exhaustive, price adjustments due to an increase in the price of raw materials). Bergerat Monnoyeur also reserves the right to propose a price adjustment to the customer in the event that the prices are no longer in line with market rates at the time of the performance of the Agreement. In the event that the customer does not wish to accept the new price, it should report this within a period of 15 days after receipt of the new price quote, in which case Bergerat Monnoyeur shall have a period of two weeks to cancel the existing quote or the agreement with immediate effect and without the customer having any right to damage compensation.

3.3 The price indicated by Bergerat Monnoyeur is valid on condition that the Material is collected ex warehouse and the delivery or transport of the Material is therefore not included in the price. In the event the parties agree that Bergerat Monnoyeur shall organise the delivery and/or the transport of the Material, then this shall take place exclusively at the cost and risk of the customer, unless otherwise explicitly agreed.

3.4 The price indicated by Bergerat Monnoyeur is exclusive of taxes.

4. PAYMENT TERMS

4.1 Bergerat Monnoyeur shall have the right to request a deposit if it deems this to be necessary. In the event that the Material ordered by the customer is no longer produced or cannot be delivered by the manufacturer, the order can be cancelled by Bergerat Monnoyeur without the customer having any right to damage compensation. In such cases, the deposit paid by the customer shall be reimbursed, unless the customer places a new order for other Material.

4.2. In the absence of specific and otherwise-stated payment conditions which are stipulated in writing, the price is payable in full on the date of receipt of the invoice. Any complaint relating to the invoice must, on penalty of being null and void, be sent by registered post to Bergerat Monnoyeur within eight days after receipt of the invoice. Any applicable discounts shall be explicitly indicated on the invoice. Such discounts are always non-recurring and do not confer any right to the customer to have any discount on future orders. The customer is not authorised to apply debt compensation on amounts which it owes to Bergerat Monnoyeur and the withholding of any amount by the customer is therefore not permitted.

4.3 Any amount which remains unpaid on the applicable due day shall, by law and without prior notice of default or the fulfilling of any other formality, incur late payment interest at a rate of 1% per month, multiplied by a fixed indemnity amounting to 15% of the unpaid amount, all taxes included, with an absolute minimum of 100EUR.

4.4 Non-compliance of the payment conditions shall also result in, by law and without prior notice of default, the expiry of future terms, and shall also result in all amounts owing to Bergerat Monnoyeur being immediately payable by the customer.

4.5 In the event of non-compliance of the payment conditions, Bergerat Monnoyeur additionally reserves the right to suspend any delivery or service, as well as the further performance of any other agreement until the expired invoices have been paid in full, without prejudice to Bergerat Monnoyeur’s right to claim compensation for the actual costs incurred and the damage suffered. Such suspension of performance shall never result in the customer having the right to damage compensation.

4.6 In the event that the credit insurer withdraws or reduces the customer’s credit line, Bergerat Monnoyeur reserves the right to demand suitable guarantees from the customer for the further fulfilment of the latter’s obligations, even after partial performance of the agreement. In the event that the customer does not satisfy the demands of Bergerat Monnoyeur in this regard, the latter has the right to terminate the agreement with immediate effect and to cancel the entire order or a portion thereof, as well as to cease or suspend any existing maintenance contracts, without the customer having any right to damage compensation. From the moment of the cessation or suspension of a maintenance contract, the customer shall be solely responsible for the relevant maintenance.

4.7. “Exchange parts” are spare parts or components which were processed by the manufacturer. For every Exchange part ordered by the customer, a used part or component, which is identical to the ordered Exchange part and produced by the same manufacturer, shall be returned by the customer to Bergerat Monnoyeur (hereinafter referred to as the “Counterpart”). This should take place within a period of two weeks from the delivery of the Exchange part.

On top of the price for the ordered Exchange part, the customer shall be charged a specific sum by Bergerat Monnoyeur as a guarantee for the return of the Counterpart. Regardless of any otherwise-stated and contractually stipulated payment conditions, this guarantee should be paid immediately and in full at the time of the order for the Exchange part, and at the latest before the delivery thereof. Bergerat Monnoyeur shall reimburse this amount in the form of a credit note, except in the following cases: (i) non-compliance of the return period of the Counterpart, or (ii) in the event that the Counterpart does not satisfy all the required qualities (for example, without being exhaustive: lack of specific components, material which has not been cleaned). In that case, Bergerat Monnoyeur reserves the right to withhold this guarantee fully or partially.

5.TRANSFER OF OWNERSHIP AND RISK

5.1 The Material shall remain the exclusive property of Bergerat Monnoyeur until full payment of the price by the customer, including taxes and any interest charges. Non-compliance of any payment term confers on Bergerat Monnoyeur the legal right to immediately reclaim the Material, without further formalities.

5.2 The customer explicitly accepts that until full payment of the price:

  1. a) it shall not transfer ownership of the Material for valuable or free consideration, or encumber with any moveable security, or remove it from the country in which it has been installed;
  2. b) it must store the Material in a well-maintained condition;
  3. c) it shall conclude all necessary and useful insurance cover and maintain it against, among others: theft, destruction, fire and all other possible forms of damage by its appointees and/or by third parties. The customer shall provide Bergerat Monnoyeur with the corresponding certificates on first request. In the event that a loss incident occurs regarding the Material, Bergerat Monnoyeur shall succeed to the rights of the customer with regard to the insurance company, and Bergerat Monnoyeur shall directly receive the damage compensation owed by this company, amounting to the sum owed by the customer to Bergerat Monnoyeur. The customer should inform its insurer in writing in this respect, and if necessary, have a beneficiary clause signed;
  4. d) in the event of the sale of one or more ship’s engines, Bergerat Monnoyeur explicitly reserves the right to establish a pledge or a maritime mortgage, in its favour. The customer undertakes in this regard to sign the documents which are necessary for the establishment of these guarantees, and to bear all of the associated costs.

5.3 Risks relating to the Material shall be fully transferred to the customer from the moment of the provision of the aforementioned Material ex warehouse, which corresponds, unless notified to the contrary in writing by Bergerat Monnoyeur, with the date which was specified in the agreement. The customer shall conclude all necessary and useful insurance cover and maintain it against, among others, theft, destruction, fire and all other possible forms of damage by third parties for the period in which the customer stores the Material after delivery in the workshops or the warehouses of Bergerat Monnoyeur. In the event that Bergerat Monnoyeur organises the transport and delivery at the address indicated by the customer, this shall take place exclusively at the customer’s risk.

6. DELIVERY

6.1 Unless otherwise agreed, the delivery shall take place in the workshops or the warehouses of Bergerat Monnoyeur. If parties agree that Bergerat Monnoyeur shall organise the transport of the Material, then this shall take place exclusively at the cost and risk of the customer, even in the event of freepost sending or expedition against payment.

6.2 The delivery and/or performance periods indicated by Bergerat Monnoyeur are merely indicative and are among other things dependent on the availability of the Material with the manufacturer. Delays in these periods do not confer any right to the customer to cancel or modify the conditions of the agreement, nor any right to damage compensation. The customer’s relevant damage stipulations are not opposable against Bergerat Monnoyeur.

6.3 Bergerat Monnoyeur explicitly reserves the right to deliver the Material in a slightly different configuration to that indicated on the order form, insofar that the relevant difference does not constitute a substantial modification to the characteristics of the Material, and does not make it unsuitable for the use for which it was intended. Moreover, the indications shown in photographs, illustrations, drawings and similar documents are merely illustrative in nature and shall never give the customer the right to recourse.

6.4 The customer undertakes to notify of any reservations relating to visible defects in writing, within two workdays following delivery of the Material or from the end of the intervention. In the event that parties agree that Bergerat Monnoyeur shall organise the sending of the Material, the customer, or where appropriate the recipient of the Material, should be sure of the condition of the Material before the sending thereof. In the absence of any written reservations within the specified period, the customer shall be deemed to have approved the delivered Material, or where appropriate to have accepted the delivered works. Any complaint relating to the delivery or the intervention after the anticipated period shall subsequently be inadmissible. The customer should obtain prior approval from Bergerat Monnoyeur for every return of Material, with regard to both the return itself, and the financial and operational modalities thereof.

6.5. In the event that it was contractually stipulated between the parties that the payment of the Material by the customer depends on the signing of a statement for receipt, then this statement shall be legally deemed to be signed in the event that it is not handed over by the customer within the 15 days following delivery of the Material. This period does not prejudice article 5.3 and in no event shall be considered as an extension to the period established in that article to formulate any reservations.

6.6 In the event that the customer does not take receipt of the Material within 10 days following written notification by Bergerat Monnoyeur that the Material is available, then Bergerat Monnoyeur shall reserve the right to keep the Material for itself, to postpone the order to a later date and to claim compensation for all costs associated with this postponement, or to cancel the Agreement in accordance with article 14.

7. ASSEMBLY

7.1. Unless otherwise stated, the costs of any assembly and disassembly are not included in the sales price.

7.2 If the customer makes available the necessary personnel and equipment for Bergerat Monnoyeur to carry out assembly or disassembly, the customer shall be solely liable for the equipment and personnel which was made available. In this case, Bergerat Monnoyeur can under no circumstances be held liable for possible accidents during assembly or disassembly caused by the customer’s personnel or material.

8. FORCE MAJEURE

8.1. In the event of force majeure, Bergerat Monnoyeur shall be discharged of all liability and can both reduce its obligations, and terminate the agreement in full, or cancel or suspend it, without being liable for any indemnity.

8.2. The following shall be considered as incidents of force majeure by the parties, without being exhaustive: war, strike action, lock–out, acts of terrorism, machine breakdown, fire, flood, industrial accidents, scrapping of important components during the production, delays or interruptions to transport, difficulties in the supply of raw materials, other materials and energy, limitations or requirements imposed by the government or any other cause which results in full or partial downtime for Bergerat Monnoyeur or its suppliers.

9. WARRANTY

9.1 General: for new Material, Bergerat Monnoyeur provides a warranty against hidden defects in accordance with articles 1641 et seq. of the Civil Code. The liability of Bergerat Monnoyeur is however limited to direct material damage with the explicit exclusion of any form of indirect and/or immaterial damage such as loss of profit, missed opportunities, without this list being exhaustive. The customer has a period of fifteen (15) work days from the moment that such hidden defect is discovered to notify Bergerat Monnoyeur of its existence by registered letter. The aforementioned warranty shall never be valid for Second-hand material which is always sold in its current condition, of which the customer is aware. Subject to prior written agreement with Bergerat Monnoyeur, the warranty is only applicable to Belgian territory and during normal working hours. The warranty can only be invoked by the customer insofar that the latter has paid the full amount of the original invoice.

9.2 Warranty for pieces, original components and interventions

  1. a) Scope: The warranty covers all defects relating to the matter or the manufacture of the new Material, as well as any intervention but only during the following warranty period:

– 12 months from the delivery date with regard to machines, engines, equipment and accessories. For more information consult our document “manufacturer warranty”;

– 12 months for spare parts, exchange components and tools, from the moment of their sale and 3 months for interventions from the day of their performance. For more information please consult our document “limited warranty on components sold and paid repairs”.

The repair or replacement of components carried out within the scope of the warranty can in no event result in the extension of the warranty period for the other components of the Material.

The warranty only covers the costs of the repair or the replacement and the amount of the intervention can never exceed the price paid by the customer for the Material or the intervention. Furthermore, in no event shall it result in the payment of any other damage compensation. The warranty shall cover neither the costs of the transport of the Material or the defective components, nor the costs associated with the return of the Material or the repaired or replaced part, nor the travel and/or accommodation costs of Bergerat Monnoyeur’s technicians.

  1. b) Modalities: Work resulting from the application of the warranty shall be carried out in the workshops of Bergerat Monnoyeur after the customer has requested the application of the warranty, and after having returned the Material, which it claims is defective, to Bergerat Monnoyeur. The warranty can only be granted after examination of the Material or the pieces and insofar that Bergerat Monnoyeur has acknowledged the defect. The choice between repairs or replacement of the defective Material as well as the method of execution thereof remain at the exclusive discretion of Bergerat Monnoyeur. The Material or the components, replaced by virtue of this provision, shall automatically become the property of Bergerat Monnoyeur. In no event shall the repair period, the stoppage of Material and the resulting damage thereof, give rise to the payment of any damage compensation.
  2. c) Exclusions: The warranty shall be excluded in the following cases:

– damage and wear and tear as a result of any inappropriate use of the Material or use which is non-compliant with the manufacturer’s instructions, both by the customer itself, and by its subordinates or by a third party, regardless of whether these last two received permission from the customer;

– damage and wear and tear as a result of, whether correct or not, adjustment or special assembly of the Material, except when this adjustment or assembly has been carried out by Bergerat Monnoyeur;

– damage and wear and tear as a result of a repair or replacement of components carried out on the Material by the customer and/or by third parties who were not authorised to do so by Bergerat Monnoyeur;

– defects due to coincidences, force majeure or in the event of a combination of causes;

– normal wear and tear, breakage through improper use, vandalism, negligence, lack of supervision or maintenance;

– by using the Material in breach of the recommendations of the manufacturer and/or of Bergerat Monnoyeur, including among others those laid out in the operator manual.

– for tyres, batteries, accessories, cab windows, bodywork, headlamps, the window wipers, and the chain guides.

The provided warranty is only valid insofar that the Material has been correctly maintained and repaired and insofar that original Caterpillar spare parts have been used, which were purchased from an official Caterpillar dealer.

10. LIABILITY

10.1 Bergerat Monnoyeur’s liability is excluded in the following cases: (i) in the event of the Material being used in conditions which are not in accordance with the recommendations of the manufacturer and/or of Bergerat Monnoyeur, (ii) in the event of insufficient maintenance of the Material or improper operation, (iii) in the event of damage which is fully or partially attributable to the customer or a third party and (iv) in the event of force majeure.

10.2. Bergerat Monnoyeur’s liability shall moreover be limited to the proven physical and/or the proven direct material damage of the customer, the customer’s personnel or third parties which are in immediate relation with a gross fault on the part of Bergerat Monnoyeur within the following limits, unless the damage may also have transpired without fault on the part of Bergerat Monnoyeur.

10.3. In the event of direct material damage, the liability of Bergerat Monnoyeur shall be limited, per damage incident, to at most the amount which corresponds with the value of the Material or the intervention as indicated on the order form. The customer shall safeguard Bergerat Monnoyeur against any claim, specifically claims from third parties, which exceed the aforementioned maximum amount.

10.4. Bergerat Monnoyeur shall never be held liable for any indirect and/or immaterial damage suffered by the customer, the customer’s personnel or third parties which occurs in the execution of its working activities, including among others, without being exhaustive; loss of profit, loss of customers, loss of operational profit. The customer, as well as its insurers, shall renounce any recourse towards Bergerat Monnoyeur to obtain compensation for the monetary consequences of such damage and shall safeguard Bergerat Monnoyeur and their insurers against any claims lodged by third parties relating to the aforementioned damage.

11. USE OF TECHNICAL DATA

11.1. The customer is informed that the Material he buys may be equipped with a module, permitting Bergerat Monnoyeur, as well as all entities participating in the supplying of the services as subscribed to by the customer (notably the companies of the Caterpillar Group), to collect technical data concerning the machine. Bergerat Monnoyeur may use this data towards goals of supply and service optimization, towards analyzing the quality of the provided services and of the functioning of the machines. The data may be transferred out of the European Union towards this goal. This machine data does not allow Bergerat Monnoyeur to identify, even not indirectly, the person(s) using the Material, and does not constitute as such, for Bergerat Monnoyeur, personal data. On the other hand, if this data allows the customer to identify, even indirectly, a physical person, it is up to the customer to inform the users of each concerned machine of the collecting of data, and to proceed towards the appropriate formalities as vised by the General Data Protection Regulation of April 27th 2016. If the customer does not wish this data to be collected, it is up to him to report this to Bergerat Monnoyeur by ticking off the therefore provided box on the Purchase Order.

 11.2. The intellectual property of the documents, concepts, drawings and all other possible technical data in any form whatsoever which has been provided to the customer by Bergerat Monnoyeur within the scope of this agreement, shall remain with Bergerat Monnoyeur at all times and is therefore not transferred to the customer, unless otherwise specified in a specific agreement drawn up for this purpose. The customer therefore has no property rights whatsoever with regard to this data and the customer is prohibited from processing, modifying, commercialising or adapting the relevant data in any other way. The relevant data of Bergerat Monnoyeur should moreover be treated as confidential data and shall in no circumstances be made public by the customer without prior written approval from Bergerat Monnoyeur.

12. PROTECTION OF PERSONAL DATA

12.1. Bergerat Monnoyeur SA (Brusselsesteenweg 340 at 3090 Overijse) is the controller of the personal data collected with the Purchase Order. This data is processed as to execute the concluded contract. This processing is founded on the articles 6.1, b) and f) (supply of and amelioration of the convened services) GDPR (General Data Protection Regulation of April 27th 2016).  The data may be transferred towards companies in the group (including Caterpillar) and towards thirds or processors, including those outside of the European Union (United States) for the needs of executing and following up the order. The data protection officer can be contacted at the following email address: dpo@bmbe.be.

Except legitimate interests of Bergerat Monnoyeur, the data will only be processed toward direct marketing goals if the customer consents to this by ticking off the therefore provided box on the Purchase Order. The customer (or signatory) can, at any moment, retract his consent and oppose the processing of his data towards direct marketing by sending an email at the address promo@bmbe.be or dpo@bmbe.be or by sending a registered mail to Bergerat Monnoyeur SA, Brusselsesteenweg 340 at 3090 Overijse.

The data will be kept for the duration of the execution of the contract concluded with the client and for the necessary duration to allow Bergerat Monnoyeur to supply the legal or contractual guarantee and to respect her bookkeeping and fiscal obligations. This period will be extended for the managing of an eventual dispute with the customer.

The customer (or the signatory) has the right to demand access to his personal data, the rectification of incorrect or incomplete data, the erasure of data under the conditions as fixed in article 17 GDPR (right to be forgotten) or a restriction of the processing under the conditions as fixed in article 18 GDPR. The customer can also object to the processing of his personal data under the conditions as fixed in article 21 GDPR, and has the right to ask for a copy of his data, as to transfer them to another controller (right to data portability). Every demand must be addressed by email at the address dpo@bmbe.be. The customer (or signatory) disposes of the right to lodge a complaint with a supervisory authority. In Belgium, the supervisory authority is the Commission de la protection de la vie privée (« Autorité de protection des données” as of May 25th 2018).

12.2 The customer likewise undertakes to comply with the provisions of the aforementioned applicable legislation.

13. USE OF THE MATERIAL IN EEA TERRITORIES

13.1. The customer undertakes to strictly ensure that the Material sold by Bergerat Monnoyeur shall exclusively be used within the territory of the EEA (European Union and Iceland, Liechtenstein, Norway) and that of Switzerland for a minimal period of 12 months from delivery and insofar that the Material has not reached 1000 hours of use. In the event of non-compliance, the customer undertakes to pay Bergerat Monnoyeur a fixed and irreducible amount of 30% of the purchase price of the Material, excluding taxes, on first request.

13.2 Moreover, the customer undertakes to not only respect the European legislation relating to embargoes, but also the regulation relating to embargoes enacted by the administrative authorities of the United States. Specifically, the customer shall not have as final destination for the Material, directly or indirectly, Belarus, Myanmar (Burma), Iran, Cuba, Syria, Sudan or North Korea.

14. TERMINATION

14.1. Bergerat Monnoyeur explicitly reserves the right to terminate the agreement in the following cases.

– In the event of non-compliance of one of the obligations by the customer and specifically in the event of payment default by the customer regarding the price or one of the payment periods, following the granting of a period of 8 days from the sending of a notice of default via registered post;

– if the customer fails to collect the ordered Material within 10 days following the written notification in which it was communicated that the Material had been made available;

– when the working activities can no longer be fully or partially carried out and this impossibility is due to the customer.

14.2. Without prejudice to the Bergerat Monnoyeur’s other rights and legal remedies, the termination of the agreement by Bergerat Monnoyeur in the hypotheses summarised in article 14.1, as well as unilateral termination of the agreement by the customer, shall incur the following consequences in every event:

– the Material shall immediately be returned to Bergerat Monnoyeur. In the event of delays to this return, the customer shall owe Bergerat Monnoyeur an amount equivalent to 0.5% of the purchase price of the Material, per day’s delay;

– a severance compensation, established as a fixed amount of 30% of the total order or of the price of the intervention, shall be due by the customer, without prejudice to Bergerat Monnoyeur’s right to claim the amount of the full repair as well as the actual damaged it has suffered, in the event that this is higher than the severance compensation.

14.3. Moreover, Bergerat Monnoyeur reserves the right to terminate the agreement at any moment both in accordance with the provisions of articles 2.3 and 2.4; and provided it respects a notice period of 6 months; and with immediate effect if one of the following incidents occurs: death, incapacity, bankruptcy, judicial reorganisation, liquidation or force majeure.

14.4 No damage compensation may be claimed by the customer on the grounds of termination of the agreement due to one of the aforementioned reasons.

15. PROHIBITION OF RECRUITING PERSONNEL

The customer is prohibited from recruiting Bergerat Monnoyeur’s personnel in any way whatsoever, both directly and indirectly as an employee or in a self-employed capacity, during a period of one year from the end of the agreement and from the end of the performance of the last order. In the event of non-compliance of this stipulation, the customer shall be liable for an indemnity towards Bergerat Monnoyeur equivalent to the amount of one year’s gross salary of the employee concerned.

16. TRANSFER TO THIRD PARTIES – SUBCONTRACTING

The parties are not permitted to transfer their rights to third parties without the prior written approval of the other party. Unless otherwise specified, Bergerat Monnoyeur can call on one or more subcontractors for the entire contract or a portion thereof.

17. REGISTRATION OF PRESENCE ON A BUILDING SITE

For building sites where works are carried out, for which the total amount is equivalent to or higher than €800,000 (excl. VAT), every employee, subcontractor and employee of a subcontractor of Bergerat Monnoyeur, whether self-employed or not, shall be obligated to register his presence in compliance with the law of 8 December 2013 (Ministerial Decree of 20 December 2013). Every co-contractor of Bergerat Monnoyeur undertakes to strictly comply with this obligation, and ensure that it is complied with, and shall safeguard Bergerat Monnoyeur against any amount which may be lodged against it in the event of any infringement thereof.

18. INSURANCE

Notwithstanding article 5.2.c), the customer shall have the possibility to take out insurance with Bergerat Monnoyeur for the cover of various risks (machine breakdown, repairs, etc.)  The Material shall then be insured on the initiative of Bergerat Monnoyeur, and at the costs of the customer.  The general conditions shall be made available to the customer on request.  All risks for which the customer is liable and which are not covered by the insurance policy remain at the customer’s expense, as well as the exemption established by the insurer.  In the event that the insurer implements an increase in the premium, or terminates the insurance policy, the customer shall have no recourse against Bergerat Monnoyeur, who accepts no liability whatsoever in this respect.

19. APPLICABLE LAW AND DISPUTES

Belgian law is applicable to the relationship between parties. Parties undertake to find an amicable solution for all disputes arising from the performance of their agreement. In the event that such a solution appears to be impossible, then the Brussels district courts shall have exclusive competence to settle any dispute.