General Terms and Conditions of Sale - Artixium France SAS
Any sale of products or services will be subject to the terms and conditions below as long as they do not conflict with other contractual provisions expressly agreed between the buyer and the seller (Artixium). Specific warranty riders for products or services supplementing or replacing the warranty provisions contained herein may apply. No other general conditions that may be mentioned in the buyer's request for proposal or order shall apply, even if they have not been rejected by the seller.
Products shall be delivered in accordance with the agreed Incoterm® 2020. Any delivery date mentioned in the order confirmation is given as an indication. Seller shall not be liable for any additional delay. Delays caused by force majeure cannot be claimed from the seller. The delivery tracking is done by the buyer via his access to the customer portal Artixium. The products must be delivered in the seller's standard packaging with the seller's standard labeling and markings. If the seller is unable to ship the products or provide the services due to an act or omission of the buyer, all associated costs (including storage) shall be borne by the buyer.
Buyer shall be responsible for all costs associated therewith (including storage). Buyer's failure to notify Seller of any claim within 48 hours after delivery of the Products or provision of the Services shall constitute acceptance thereof without reservation. Buyer shall file a claim for loss or damage in transit of the products against the carrier immediately upon delivery and notify Seller immediately. Rejected products must be held at the disposal of the seller and may only be returned with the seller's prior consent.
Product titles shall pass to Buyer after the price of the Products has been paid in full to Seller. Until Buyer has obtained title to the Products, Buyer shall ensure that the Products in Buyer's possession are readily identifiable as Seller's property. At Seller's request, Buyer shall execute all documents and perform all acts that may be necessary to enforce Seller's retention of title.
3-TAXES AND DUTIES
All taxes, duties, excises and other charges levied in connection with the sale of the Products or the provision of the Services shall be borne by Buyer, except for those taxes and duties which are payable by Seller prior to the delivery of the Products in accordance with the agreed Incoterm or the provision of the Services. If Buyer exports the Products, Seller may charge VAT, which shall be credited only upon receipt of a valid proof of arrival of the Products in the country of destination.
4-INVOICING - PAYMENT - DEFAULT
Seller shall invoice Buyer for the price of the Products, shipment by shipment. Seller shall invoice Buyer for the price of the Services in advance at the commencement of the Service Agreement or, for projects, prior to the provision thereof. The price shall be in the currency of Seller's quote or applicable price list. Buyer shall pay Seller's invoices in accordance with the payment terms agreed to in the purchase order, without any deduction or set-off. If Seller is unable to complete a milestone in the schedule due to an act or omission of Buyer, the progress payment related to that milestone shall be deemed payable if Buyer's act or omission prevents Seller from completing the milestone within 30 days of Seller's notification. If payment is
delayed, Buyer shall pay Seller payment penalties of 3 times the legal interest rate on the amounts due and a flat fee of €40 per invoice paid late for collection costs. If Buyer fails to comply with Seller's payment terms or fails to provide satisfactory security, Seller may, at its option, suspend its obligations until full payment or satisfactory security has been received by Seller, or consider all pending orders cancelled by Buyer. Any claim by Buyer shall not entitle Buyer to delay or withhold payment of any outstanding amounts.
5-INSTALLATION ON SITE-ACCEPTANCE TESTING
If Seller has agreed to install the Products at a designated site, Buyer shall transport the Products at Buyer's expense from the delivery location to the installation site. Buyer shall meet Seller's (pre-)installation requirements in a timely manner and perform all work to be done by Buyer. Buyer shall notify Seller of health and safety hazards at the site at least 30 days prior to installation and shall assume health and safety coordination among contractors at the site. If Seller has agreed that the products or services are subject to factory or site acceptance testing, Seller and Buyer shall agree upon the acceptance procedures and testing. Buyer shall accept the products or services if the acceptance tests
Buyer shall accept the products or services if the acceptance tests reveal only non-critical problems that do not prevent their operational use provided that Seller remedies such problems within a reasonable time. Any operational use of the products or services by Buyer or any other user shall be deemed to constitute final acceptance. If no factory or field acceptance test has been agreed upon, Buyer shall, upon installation, properly inspect the products. Buyer's failure to complete testing or inspection within 3 months of shipment shall constitute unqualified acceptance and a waiver by Buyer of all claims therefor. Seller will repair free of charge any product found to be defective or nonconforming within the
the warranty period defined at the time of the order, by such operations as it deems necessary, within a period defined by the seller. The costs of packaging, insurance and transportation in both directions shall be borne by the buyer.
Force majeure occurs in contractual matters when an event beyond the control of the debtor, which could not reasonably be foreseen at the time of the conclusion of the contract and the effects of which cannot be avoided by appropriate measures, prevents the debtor from fulfilling his obligation. If the impediment is temporary, the performance of the obligation is suspended. The different natures of force majeure can be multiple: Bacteriological or pandemic, computer, climatic, military, political. Neither party shall be liable for failure or delay in performance of its obligations (except for any payment obligation) due to natural disasters, fires, explosions, strikes, riots, acts of terrorism, civil or international wars, invasions, refusal by governments to grant import or export licenses or their cancellation, inability to obtain raw materials, components
or parts due to force majeure, or contingency of a supplier of goods and services, or any other event beyond the control of either party. In the event of force majeure, Seller will allocate available products and provide services among its buyers at its discretion.
Hardware: Seller warrants that the Products shall conform to the specifications in effect at the time of delivery and shall be free from defects in materials and workmanship. Software: Seller warrants that the software shall perform substantially in accordance with the specifications in effect at the date of delivery. The software is inherently susceptible to bugs and errors. Seller makes no warranty with respect to software provided to Buyer "as is" and does not warrant uninterrupted or error-free operation of the products. Services: Seller warrants that it will provide the Services in a professional manner. Warranty Period Hardware (including used and demo equipment): Equipment will be warranted for the period defined at the time of order placement. The warranty start date shall be from the date of shipment or, if applicable, the date of acceptance in accordance with Article 5.B Spare Parts: 3 months from the date of shipment In case of repair or replacement, the warranty period shall continue to run until it expires or 3 months after the repair or replacement, whichever is longer.
Prerequisites for the application of the warranty: The warranty applies only to the extent that the products, services or parts thereof have been handled, transported, stored, and installed (if and to the extent such activities were not performed by Seller) in accordance with Seller's instructions, including, but not limited to, use of original packaging, covered and secured location, minimum temperature, maximum umidity, and installation by Artixium certified personnel, or, in the absence thereof, in a professional manner; has not been subject to any unauthorized access, alteration, modification or repair or attempts (such as removal of warning labels, original seals or serial numbers) or abuse or damage; has at all times been "normally used" for the purpose specified and operated and maintained strictly in accordance with the instructions set forth in the Operation and Maintenance Manual or, in the absence thereof, in a professional manner. For the purposes hereof, "normally used" means regular, ordinary and routine use as intended or recommended by Seller; not connected to or used in combination with other equipment, products or systems (hardware and/or software) not compatible with the Product.
Warranty Exclusions: In no event shall Seller be liable for any defect, failure, loss or damage caused by or resulting from wear and tear, any external cause or event beyond Seller's control (improper use, dropping, etc...), the use or operation of the product or service prior to acceptance, any act or neglect of Buyer or any third party, or any phenomena inherent in the technology used such as image retention, burn-in, vibration, etc. The warranty does not apply to consumables (lamps, liquids, filters, batteries, etc.) or to reflectors, fans, pumps, LEDs. Any third party product or part thereof that the seller merely resells with the products or services, is subject to the original.
Claim for Warranty Repair or Replacement: Any claim under the Warranty must be notified to Seller in writing within 8 days of discovery of the defect or failure.
Warranty Remedies: Under the Warranty, Seller shall, at its sole option and expense, and without undue delay, with respect to: Hardware: Repair or correct the product or part; or replace the product or provide parts or components. A replacement part must be at least functionally equivalent to the original part. The replaced product, parts and/or components shall become the property of Seller and shall, at Seller's request, be returned by Buyer to Seller within the time frame for repair possible, agreed upon with Buyer. If Buyer does not return, Seller will invoice Buyer for the replaced product, parts and/or components at list price. Software: Modify the software or provide an alternative version of the software. Service: Re-perform the Service.
Return of Defective Product or Parts - Repair - Replacement: Repair or replacement under the warranty covers only the cost of material and factory labor. Repair or correction shall be made at Seller's repair facility, unless Seller has agreed to make the repair or replacement elsewhere, in which case the service engineer's time and travel and subsistence expenses shall be borne by Buyer in accordance with Seller's then applicable rates. Buyer shall not return any defective product or part thereof without Seller's prior written approval. Upon approval, Seller will issue Buyer a Return Material Authorization (RMA) number. The cost of round-trip packing, transportation and insurance The remedies specified in this Section 7 shall be Buyer's sole and exclusive remedy and Seller's sole and exclusive liability for Seller's breach of warranty hereunder. Seller makes no other warranties or representations, express or implied, and expressly excludes and disclaims all warranties that may be implied or otherwise created by operation of law, including all implied warranties of uninterrupted or error-free use or operation, merchantability and fitness for a particular purpose.
8-TERMINATION - CANCELLATION
In the event that a petition in bankruptcy is filed by or against Buyer, or Buyer is declared bankrupt, or Buyer becomes insolvent or its credit is impaired in the reasonable opinion of Seller, or proceedings are instituted by or against Buyer to seek the appointment of a receiver, reorganization, liquidation, dissolution debt restructuring or similar relief, or if Buyer fails at any time to perform any material obligation or condition hereunder, Seller, at its option, shall have the right to suspend performance of its obligations until Buyer fulfills its obligations or to terminate the Order effective immediately without prior notice by registered mail. In the latter case, without prejudice to any other remedy, the seller may repossess the products without the intervention of a court and the buyer shall attend free of charge. If Buyer cancels the order, Buyer shall pay Seller an indemnity equal to 50% of the amount of the order, without prejudice to Seller's right to claim a refund equal to its actual losses. Any advance payments already made shall revert to the Seller up to the amount of the compensation due.
9-LIMITATION OF LIABILITY
Seller's exclusive liability and Buyer's exclusive remedy for all claims, whether arising in contract, warranty, negligence, Seller's failure to comply with laws and regulations, strict liability or otherwise, shall be limited to the price of the product or service. With respect to which the claim is made or, at Seller's option, its replacement.
In no event shall Seller be liable for any special, incidental, punitive, indirect or consequential damages (including, without limitation, loss of profits, business, revenue, goodwill or anticipated savings).
goodwill or anticipated savings), whether or not caused by or resulting from the negligence or willful misconduct of such party.
10- THIRD PARTY RIGHTS
Seller shall hold harmless and indemnify Buyer against direct damages, losses and expenses resulting from the infringement of any third party patent, trademark or copyright by any product or service and shall defend and settle at its own expense any claim brought against Buyer. Seller shall have no obligation to defend any claim against Buyer, provided that Seller is notified within 48 hours in writing by Buyer after a claim has been asserted against Buyer, and Seller shall have sole control of the defense and any settlement negotiations, and Buyer shall not make any representations or concessions, negotiate, settle or compromise any claim without Seller's prior written consent, and Buyer shall, at its expense, provide such assistance and support, as Seller may require, in connection with the defense and any settlement negotiations. Seller shall have no obligation to indemnify for any product or service, or any part thereof, which is based on specifications, drawings, models or other data provided by Buyer or, which is not provided by Seller or, which is modified by a party other than Seller and not at Seller's direction or, to the extent the buyer continues the allegedly infringing activity after receiving modifications that avoid the alleged infringement, or where the use of the product or service, or the combination thereof with other products, processes, or materials, or the distribution thereof, rather than the product or service itself, is the primary cause of an alleged infringement. If Seller has been determined to have infringed or misappropriated such third party rights, Seller may, at its option and expense, modify the product or service so as not to infringe or misappropriate the third party's rights or obtain for Buyer a license or other right to use the product or service or replace the product or service with a non-infringing product or service. If the above options are not available on reasonable commercial terms, Seller may require the return of the product and reimbursement to Buyer of the amounts paid for the product less a reasonable allowance for the time Buyer used the product. The remedies set forth in this Section 10 shall be Buyer's sole and exclusive remedy and Seller's sole and exclusive liability for a claim by a third party that the Product or Service infringes or misappropriates a third party's intellectual property right.
11-CONFIDENTIALITY - INTELLECTUAL PROPERTY RIGHTS
Buyer shall not disclose any proprietary or confidential information of Seller.
All patents, trademarks, copyrights, other intellectual property rights or proprietary or confidential information, whether existing prior to the date of Buyer's order or developed as of the date of Buyer's order, shall remain the property of Seller or its licensor, as the case may be, and nothing herein shall be construed as conferring upon Buyer by implication or otherwise any right, title or interest in or license to any intellectual property right, confidential information or other trade secret. Seller shall not, however, enforce its intellectual property rights against Buyer, its successors or assigns who operate the Products or Services in accordance herewith.
The software provided by Seller to Buyer hereunder shall remain the property of Seller or its licensor at all times. Buyer shall at all times comply with the terms and conditions of the (sub)license imposed by Seller or Licensor. Subject to payment by Buyer of all outstanding amounts, Seller hereby grants to Buyer a non-exclusive (sub)license to use the Software solely for the purpose of operating the Products delivered hereunder. Seller hereby grants Buyer the right to assign the foregoing software user license to the end user to whom Buyer resells the Products
Buyer shall comply with all applicable export control laws and regulations or any end user certificate issued thereunder and shall not export, or permit the export or re-export of any proprietary information or software or any copies thereof, or the Products in violation of such laws and regulations, or without all required licenses and authorizations, to any country to which such export laws, restrictions and regulations prohibit export. Buyer shall notify Seller in a timely manner of any local regulations or rules that may restrict, technically, regulatory or otherwise, the deployment or operation of the Products or the provision of the Services in Buyer's country and shall provide all assistance reasonably required to obtain any required licenses therefor.
Buyer may not assign or transfer to any third party any benefits or obligations arising from the Order, in whole or in part. Seller may assign the order to a subsidiary of Seller or to a third party in connection with the sale of Seller's business. The order shall be binding and inure to the benefit of the assigns of either party.
14-WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT [WEEE]
If the Seller is required by law to collect, process, recover and dispose of WEEE in an environmentally sound manner, the Buyer shall arrange and pay the costs of collection and transportation of the WEEE to the recycler designated by the Seller.
15-APPLICABLE LAW AND JURISDICTION
All sales of Products and supplies of Services are subject to the law of Seller's country or, if applicable, state or province of incorporation without resort to its conflict of law principles. In the event of a conflict between these terms and conditions and the public policy provisions of any applicable law, the latter shall prevail and the validity of the remaining provisions of these terms and conditions shall not be affected. The provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods and the United States Uniform Commercial Code shall not apply to any order.
Any dispute shall be resolved by the courts of Seller's principal place of business or, at Seller's option, by the courts of Buyer's principal place of business, and without prejudice to the enforcement of any judgment or order of Buyer in any other jurisdiction.