These General Conditions of Purchase (“GCP”) shall constitute the only agreement applicable to Ateme’s purchase and expressly exclude the application of the Supplier’s general terms of sale as well as any document issued in relation to Ateme’s order for the supply of Goods and/or Services.
- Confidential Information: shall mean any data, information or documents, whether in tangible or intangible form, proprietary and maintained in confidence by either Party; regardless of whether such documents, information or other materials provided by either Party have been tagged as “Confidential”.
- Goods: shall mean material objects, together with their assembly and/or installation if applicable.
- Party(ies): shall mean individually or together Ateme or/and the Supplier.
- Purchase Order: shall mean the written document issued by Ateme to order Goods and Services to the Supplier.
- Services: shall me the work performed by the Supplier ordered by Ateme.
- Supplier: shall mean the party that supplies Goods or Services to Ateme under the Purchase Order.
- Supplies: shall me the generic term for the Good and Service.
2.1 All orders made by Ateme must be issued through a Purchase Order signed by a duly authorizes representative.
2.2 The issuance of Purchase Orders follows on from negotiations between the Parties held based on the Supplier’s general conditions of sale when they exist.
2.3 The Supplier shall acknowledge receipt of the Purchase Order in writing, within three (3) working days as of the date of the order. At expiration of such period, the Purchase Order is deemed accepted by the Supplier.
2.4 The acceptance of the order by the Supplier implies acceptance of references, price, and delivery times mentioned in the Purchase Order.
2.5 The commencement of the execution of the order shall be considered by the fact itself as an implicit acceptance of the Purchase Order and the associated GCP.
3. Delivery terms
3.1 Time is of the essence of the order.
3.2 The delivery date is indicated on the Purchase Order or specified by Ateme.
3.3 The Supplier shall not be entitled to deliver the Goods or supply the Service before the due date without Ateme’s specific authorization in writing and shall bear all costs related to any early delivery.
3.4 If the Supplier is not able to meet the delivery and execution date, it shall notify as soon as possible in writing to Ateme by providing an explanatory record and the measures taken to solve this potential delay.
3.5 In the event of late delivery, Ateme may without prior notice, apply penalties of five percent (5%) of the value of the Supplies delayed per week of delay – any week started being due – without prejudice its right to terminate the Purchase Order referring to Article 15.1 and to be compensated for any resulting damage.
3.6 Penalties shall be automatically deducted from the amounts owed by Ateme under the Purchase Order.
3.7 The payment of the penalties shall not exempt the Supplier to perform its obligations under the Purchase Order.
3.8 As an exception to the previous paragraph, Ateme shall be entitled to proceed to the purchase of the Supplies from another supplier at Supplier’s cost.
4. Packaging and shipping documents
4.1 Unless special packaging required by Ateme in the Purchase Order, the Supplier shall deliver the Goods in appropriate packaging according to norms and standards to ensure the delivery of the Goods in good condition at their destination.
4.2 The Supplier shall mark all packages and containers with all lifting, handling and transport instructions needed and with any specific conditions of transport to follow. The Supplier shall label each package and container with shipping information, Purchase Order number, shipment date and names and addresses of the consignor and consignee.
4.3 The Supplier shall be fully responsible for any damage to Goods or any additional expense caused by an inappropriate packaging, an improper or inadequate marking or labeling.
4.4 At the time of the shipment, the Supplier shall send by email to Ateme a delivery notice indicating (i) the date and the complete reference of the Purchase Order, (ii) the full address of the respective warehouse of the consignor and the consignee, (iii) a detailed description of Goods, (iv) the total number of packages in the shipment, (v) the identification of gross and net weight of each package, (vi) the mode of transportation, (vii) the date of shipment and (viii) the date of delivery.
4.5 The shipment of the Goods shall be done at risks and expenses of the according to DDP – DAP – Incoterms 2010.
4.6 The Supplier shall subscribe to a suitable insurance covering the Goods up to their arrival at the premises of Ateme or any other destination approved by it.
5. Reception and acceptance
5.1 Except otherwise specified on the Purchase Order, reception of the Supplies shall always be carried out in the premises of Ateme, on working days during business hours. No delivery shall be accepted outside these requirements.
5.2 Ateme reserves the right to refuse the Supplies for the following reasons:
- non-conformity of the Supplies with respect to the quantity or quality specifications mentioned in the Purchase Order;
- noncompliance with the dates and delivery hours;
- any other reason duly justified by Ateme.
5.3 All non-conforming Goods shall be returned to the Supplier at its own risks and expenses.
5.4 Notwithstanding the provision stipulated in Article 5.3, in case of non-conformity, Ateme may choose to keep the defective Supplies with a price reduction.
5.5 The supplies shall be accepted in writing by Ateme. No implicit acceptance shall be considered.
5.6 No payment shall be due by Ateme for rejected Supplies.
6. Financial terms
6.1 Unless otherwise specified in the Purchase Order, the prices are without taxes, firm. They shall be set Delivery Duty Paid in Ateme’s premises – DDP as defined in Incoterms 2010.
6.2 The Supplier shall bear all transport and unloading costs, customs duties, taxes as well as insurance costs and risks, until final receipt of the Supplies according to the terms of Article 5 herein.
6.3 Invoices must be sent to Ateme in two (2) copies; they shall mention the Purchase Order reference, the description of the Supplies, the number of items if applicable, the unit price excluding taxes and the date of delivery.
6.4 Unless otherwise agreed by Ateme, invoices are payable within sixty (60) days from invoicing date.
6.5 In case of off-invoice deduction, the amount of VAT will be deducted accordingly.
6.6 All amounts payable by Ateme shall be computed and paid in euros. In compliance with the applicable law, in case of late payment, the Supplier may invoice Ateme late payment interests eligible for capitalization, at three (3) times the French legal interest rate. In addition, the Supplier may obtain a fixed amount of forty (40) euros as an indemnity for recovery costs.
6.7 Ateme reserves the right to suspend all or partially the payment until the complete execution of the Purchase Order.
6.8 Ateme expressly reserves the rights to automatically deduct from the payments made to the Supplier, any and all sums which it may owe Ateme for whatever reason.
7.1 At the date of delivery and for a period of twelve (12) working months, the Supplier remains responsible for any failure affecting the proper operation and / or the use of Supplies.
7.2 The Supplier warrants that all Supplies executed and / or delivered with respect to the Purchase Order (i) comply with the specifications thereof and are free from any defects apparent or hidden in design, in structure, manufacturing or installation and (ii) conform in all respects to both control and requirements prescribed by laws, regulations and standards in force in the place of delivery.
7.3 The Supplier warrants that the Supplies are suitable for the purposes for which they have been purchased by Ateme.
7.4 If the Supplies (i) do not comply with the terms of the Purchase Order or (ii) within the guarantee period are deficient, Ateme may choose, notwithstanding its other rights and claims, either:
- to return the Goods at the expenses and risks of the Supplier; or
- to require the repair, adaptation, improvement or supply or new Goods or Services by the Supplier free of charge; or
- to terminate all or part of the Purchase Order with immediate effect.
7.5 At the end of the contractual warranty period, the Supplier shall remain liable for all consequences, either direct or indirect, arising from hidden defects which may affects the Supplies. All clauses that tend to reduce the legal warranty are deemed void.
7.6 The Supplier undertakes, for a minimum period of five (5) years following the end of production or withdrawal from the catalogue of the Goods, to supply Ateme under reasonable conditions in particular in terms of price and delivery period, with items, spare parts and other elements required to continue to use the Goods.
8. Transfer of title and risks
8.1 Subject to any claim to retention of title or rights to complain, the ownership of the Supplies shall be transferred to Ateme at their delivery to Ateme, provided that such Supplies have been approved by Ateme and meet the terms and requirements of the Purchase Order. The supplier guarantees to transfer full and unencumbered ownership.
8.2 Regardless of the terms and conditions of transportation, the transfer of risks with respect to the Supplies shall be delayed until the final receipt of the Supplies at the address indicated in the Purchase Order.
9. Intellectual Property
9.1 The Supplier guarantees that the object of its Goods and Services will not infringe any third-party intellectual or industrial property rights.
9.2 If the Supplier provides Supplies which are subject to any third-party intellectual or industrial property rights, the Supplier shall grant to Ateme an irrevocable, perpetual, nonexclusive, worldwide, royalty-free right of use.
9.3 Either Party shall retain ownership of all pre-existing intellectual or industrial property rights that already exist prior the execution of the Purchase Order.
9.4 All right, title and interest to Intellectual Property created by the Supplier within the framework of the Purchase Order shall be owned by Ateme and deemed as such as of their creation.
9.5 The Supplier shall indemnify Ateme against any third-party claim arising from or connected with any infringement of the said rights and shall compensate Ateme in respect of all consequential loss and costs.
10.1 Confidential Information disclosed by either Party to the other Party in connection with the Purchase Order or during its execution remains the exclusive property of the Party disclosing such information.
10.2 The Party receiving the Confidential Information shall only use it in connection with the execution of the Purchase Order.
10.3 The receiving Party undertakes to treat the Confidential Information as strictly confidential for a period of three (3) years following the date upon which the Purchase Order has been placed.
10.4 The receiving Party shall only disclose the Confidential Information to its employee on a need-to-know basis and shall ensure that such employees are bound by similar confidentiality obligations.
10.5 Without prior written consent from Ateme, the Supplier shall not communicate on, in any manner whatsoever, or disclose any information about the existence of commercial relations between Ateme and the Supplier and/or about Ateme and its associated products.
11. Liabilitiy – Insurances
11.1 The Supplier is liable for any loss suffered by Ateme or any third party as a result of any breach of its performance of the Purchase Order or as a result of any unlawful act or omission on the part of the Supplier, its employees or any third party it has engaged.
11.2 Furthermore, the Supplier shall indemnify Ateme against all direct and indirect damages arising from any defect of the Goods, including but not limited to any costs of replacement and/or repair of all adjacent components and related transportation costs.
11.3 The Supplier must take out adequate liability insurance at its own expense (including, in any event, business and professional liability insurances). Upon Ateme’s request, the Supplier shall provide adequate proofs of the policy and payment of the premiums.
12.1 The Supplies must comply with all applicable local, European and international legal and regulatory requirements concerning hygiene, safety and environment (non-exhaustive list) for dangerous substances and preparations (REACH, RoHS, asbestos…), waste (packaging, WEEE, …), noise, electrical protection, electromagnetic / ionizing / optical radiation, vibration and any other nuisance.
12.2 The Supplier undertakes to respect any requirements and regulations defined by the International Labor Organization and be fully compliant with French labor law.
12.3 The Supplier shall at all times maintain high ethical standards and avoid conflicts of interest in the execution of the Purchase Order. The Supplier shall comply with all applicable laws, statutes, regulations and other requirements prohibiting bribery, corruption, kick-backs or similar unethical practices including, the United States Foreign Corrupt Practices Act.
12.4 All these obligations shall be enforced to the Supplier itself but also to its own suppliers and subcontractors.
12.5The Supplier undertakes to inform Ateme of any non-compliance with regulations such as mentioned above and compensate Ateme any consequences resulting from non-compliance with the Supplier obligation described in this article.
12.6 All justified documents and certificates must be supplied upon Ateme’s first request.
13. Export control
13.1 The Supplier agrees and warrants that it shall comply with all applicable intentional and national export control laws and regulations and it shall not export or re-export, directly or indirectly, any information, goods, software and/or technology to any country for which European Union or the United States of America or any other country, at the time of export or re-export, requires an export license or other governmental approval, without first obtaining such license or approval.
13.2 The Supplier undertakes to inform Ateme in writing whether or not the supplied information, goods, software and/or technology is US controlled and/or controlled under the export control laws of its own country, and if so, the Supplier shall inform Ateme about the extent of the restriction, including but not limited to export control legal jurisdiction, export control classification numbers, export control licenses and/or CCATS as applicable.
13.3 The Supplier shall obtain all international and national export licenses or similar permit required under all applicable export control laws and regulations and shall provide Ateme with all information required to enable Ateme and its clients to comply with such laws and regulations.
14. Personal Data
14.1 Noncompliance by the Supplier of the Personal Data Regulation, whether European or national resulting in particular from Regulation 2016/679/EU of April 27, 2016, shall be deemed as a gross fault.
14.2 Any failure of the Supplier to fulfil its obligations within the meaning of the General Personal Data Regulation shall engage its responsibility vis-à-vis Ateme.
15.1 In the event of failure by the Supplier to perform any of its contractual obligations whatsoever, Ateme may shall automatically terminate the Purchase Order after a fifteen (15) day notice given in writing remaining in whole or in part without effect during this period, without prejudice to the right of Ateme to claim damages.
15.2 Ateme may also, without prejudice of any applicable laws (i) terminate the Purchase Order in case of bankruptcy, dissolution or seizure of the assets of the Supplier, (ii) terminate, at any time, unilaterally and as of right, any Purchase Order placed but not yet executed without formal procedures.
15.3 The completion or termination of the Purchase Order shall not affect any obligations that, due to their nature, shall survive, such as but not limited to obligations relating to the warranty, compliance with regulations, intellectual property or confidentiality.
16. Force Majeure
16.1 A force majeure event is an event which is reasonably unforeseeable, and which is uncontrollable that prevent one Party to perform its obligations and which cannot be circumvented by the affected Party.
16.2 In case of force majeure, the obligations of either Party affected shall be first suspended. The affected Party shall promptly notify the other Party in the event of force majeure and the probable duration thereof.
16.3 The affected Party shall make reasonable effort to minimize the effects resulting from this situation.
16.4 Should the force majeure last more than thirty (30) days, the other Party may terminate the Purchase Order without damages due to either Party.
17. Applicable law
17.1 These GCP are governed by the French law.
17.2 The applicability of the United Nations Convention on contracts for the International Sale of Goods is explicitly excluded.
17.3 Any dispute between the Parties shall ne resolved as far as possible by negotiation. In the event of failure, the Courts of Paris shall have sole jurisdiction.
18. General provisions
18.1 The Purchase Order shall not be subcontracted in whole or in part without Ateme’s prior written approval. If Ateme agrees a subcontractor, the Supplier shall remain solely liable for the performance of such subcontractor.
18.2 The Supplier cannot assign or transfer to third party, even an affiliate, the Purchase Order. Ateme is free to assign, transfer, in whole or in part, its rights and obligations under the Purchase Order.
18.3 The Supplier shall immediately inform Ateme of any risk of economic dependence. Such obligation is of essence as its permits to the Parties to keep balanced relationships.
18.4 The invalidity of one clause shall not invalid these GCO and the Parties shall do their best effort to substitute said invalid clause with a valid clause of equivalent economic effect.
18.5 Neither Party’s failure to exercise any of its rights hereunder shall be deemed a waiver of any such rights.
18.6 Either Party is an independent legal entity, both in legal and financial terms, and acts on its own behalf and under its sole responsibility. The Supplier carries out its activities as an independent service provider towards Ateme.
This agreement is governed by Article L441-6 of the French Commercial Code and in accordance with article L111-1 of the Consumer Code. All sales made by Ateme, a corporation of France, with offices at Green Plaza – 6 Rue Dewoitine , VELIZY-VILLACOUBLAY 78140 (“Seller ») are made to the Buyer pursuer to the Following terms and conditions (“Agreement »).
1. Acceptance: These terms of sale apply to that certain purchase order (the “Purchase Order”) received by Seller from Buyer referring to Seller quote [Quotation reference number] dated [Quotation Date] for the acquisition of Seller’s products set forth in the Purchase Order (the “Products”) and the acquisition of support services set forth in the Purchase Order (“Services”), which Services shall be provided to Buyer pursuant to the Customer Support Terms attached hereto as Exhibit A. Seller’s acceptance of the Purchase Order is conditional on Buyer’s assent to the terms and conditions set forth in this Agreement in lieu of those in Buyer’s Purchase Order, and any terms and conditions contained on Buyer’s Purchase Order shall be null and void. Any changes in this Agreement must be agreed in writing by an authorized officer of Seller before becoming binding. All additional purchase orders must be approved and accepted by an authorized officer of Seller. This Agreement will apply whether or not enclosed with the Products sold.
2. Incoterms: All sales are made EXW Vélizy-Villacoublay, FRANCE
3. Shipment: In absence of specific shipping instructions from Buyer, Seller will ship by the method it deems most appropriate to the address set forth in the Purchase Order. Unless otherwise specified, the Products shall be shipped in Seller’s standard commercial packaging and any special packaging requested by Buyer shall be paid for by Buyer.
4. Delivery: Shipping dates set forth in the Purchase Order are approximate. Seller may make partial deliveries and invoice each such delivery separately. Such deliveries will not relieve Buyer of its obligation to accept all Products ordered in the Purchase Order . Unless otherwise agreed in a Purchase Order, Buyer shall pay all related transportation, insurance and customs costs and fees.
5. Order Cancellation: Once a Purchase Order has been sent but prior to shipment of the Product, Buyer may cancel a Purchase Order. Any such cancellations will be subject to restocking charges to be paid by Buyer in accordance with the following schedule that are applied based on the day Seller receives the cancellation notice. Buyer may postpone the shipment of an order specified in a Purchase Order once in writing for up to 90 days after the scheduled ship date identified in the order acknowledgement. If a Purchase Order has been postponed and then subsequently cancelled (or deemed cancelled because Buyer has not authorized shipment prior to the end of the postponement period), the cancellation charge would be based on the number of days prior to the original scheduled ship date that notice of cancellation is received.
|Number of days prior to original scheduled ship date that notice of cancellation is received by Seller||Cancellation charge as a percent of original Purchase Order|
91 or more
Notwithstanding the foregoing, in the event that, at any time prior to shipment, Buyer reasonably determines that the technical configuration of the Products as described in the relevant Purchase Order are in fact incompatible with Buyer’s network (a “Configuration Error »), then Buyer may cancel the Purchase Order for a restocking fee equal to twenty-five percent (25%) of the original Purchase Order amount, provided that Buyer, along with such cancellation notice, submits both (i) a replacement Purchase Order for the same number of (correctly configured) units of Product as were covered by the original Purchase Order, and (ii) detailed supporting documentation substantively equivalent to what would appear in an RMA (as defined below) describing the Configuration Error.
- Payment Terms: The applicable prices for the Products are set forth in Sellers’ Product price list. All prices are listed in US dollars or Euros. All payments are to be made in US dollars or Euros; if payment is made in a currency that is not the one used in the quotation, Buyer shall make payment using the exchange rate published by the Federal Reserve Bank of New York as of the close of business on the date of the Purchase Order. Buyer is responsible for payment of all transportation, handling, insurance and brokerage charges incurred in delivering the Products to Buyer’s location. All invoices are payable thirty (30) calendar days from date of invoice.. Amounts past due will be subject to a late payment charge of one and one-half percent (1.5%) per month on the past due balance.
- Taxes: Buyer agrees to pay all taxes or levies of whatever nature arising out of or in connection with this Agreement, excluding any taxes based on Seller’s net income. Buyer will reimburse Seller in full for any of the foregoing taxes or levies paid by Seller for which Buyer is responsible hereunder. If Buyer asserts that any transaction under this Agreement is tax exempt, Buyer will provide Seller with an exemption certificate acceptable to the taxing authorities.
- Hardware Warranty: Unless otherwise specified in the accompanying documentation, Seller warrants that the hardware Products (excluding any software contained therein) purchased hereunder will be free from defects of material and workmanship under normal use and service. For a period of one (1) year following shipment of the Product by Seller, Seller will, at no charge and at Seller’s sole option, (i) supply either new or refurbished replacement parts for defective parts of the Products or new or refurbished Products to replace defective Products; or (ii) repair defective Products.
- RMA: Buyer must obtain a Return Merchandise Authorization from Seller prior to returning any Products for repair or replacement. Upon technical resources at Seller investigating an RMA and having received the information necessary to investigate an RMA, Seller will issue an RMA number to Buyer if appropriate. The cost of shipping Products to Seller that are in warranty for repair or replacement will be paid by Buyer, and the return shipping cost will be paid by Seller; however, if Seller determines that the returned Products are neither non-conforming nor defective, Seller will bill Buyer for the cost of such shipping. Title to Products returned for repair will at all times remain with Buyer. The sole liability of Seller, and the sole remedies available to Buyer, under the limited warranty regarding Products set forth in Sections 8. a. (i) and 8. a. (ii) above are those set forth in this Section 8.b.
- Software: Seller warrants the software for a period of ninety (90) days following shipment by Seller. SELLER DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED.
- Third Party Products: The warranty and other terms and conditions applicable to third party equipment purchased or software licensed through Seller when available shall be transferred to Buyer.
- Procedures: Warranty obligations apply only to Products returned to Seller at Seller’s factory of origin, transportation and customs charges prepaid by buyer, during the applicable warranty period and confirmed defective by Seller. Further, the warranty obligations set forth the sole and exclusive remedy to Buyer.
- Exclusions: The warranties will not apply to any Products that have been repaired or altered other than by Seller, damaged by Buyer’s failure to meet environmental specifications, or subjected to misuse, negligence, accident, unusual physical or electrical stress, or other causes other than the normal and intended use of the Products.
- Out of Warranty Costs: All out-of-warranty costs for repair or replacement (including the costs of shipment) shall be paid for by Buyer. Out-of-warranty diagnostic investigations, repairs, workarounds, and/or replacements are subject to a charge as quoted by Seller and accepted by Buyer. All out-of-warranty diagnostic investigations, repairs, workarounds, and/or replacements must be pre-authorized by Seller and evidenced by a Buyer purchase order. Buyer shall, at all times, retain title to Products returned for repair.
- Disclaimers: THE WARRANTY FOR THE PRODUCTS SET FORTH HEREIN IS IN LIEU OF, AND SELLER HEREBY DISCLAIMS, ALL OTHER WARRANTIES EXPRESSED, STATUTORY OR IMPLIED, WHETHER ORAL OR WRITTEN, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
8. Limitation of Liability: SELLER’S TOTAL LIABILITY ARISING OUT OF THIS SALE OR THIS AGREEMENT SHALL NOT EXCEED THE PURCHASE PRICE PAID BY BUYER. IN NO EVENT WILL SELLER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, ANY LOST PROFITS OR SPECIAL, CONSEQUENTIAL, I NCIDENTAL, INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIA BILITY, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The limitations specified in this Section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its purpose.
9. Ownership: All patents, trademarks, trade names, copyrights, mask works, design rights, trade secrets, know-how and other proprietary rights in or related to the Products and the Seller Confidential Information are and will remain the exclusive property of Seller or its licensors, whether or not specifically recognized or perfected under the laws of the country where the Products or items of Seller Confidential Information are located. Buyer will not take any action that jeopardizes such proprietary rights or acquire any such right in the Products or Seller Confidential Information, except the limited right to use the Seller Confidential Information in operating the Products.
10. Software License: Buyer is hereby granted a non-transferable, nonexclusive, fully paid license to use the software and the documentation solely in conjunction with the products purchased under this Agreement (subject to the limitation in 10(b) below, if applicable) and solely for use by Buyer for its internal business purposes. Buyer receives no title or ownership rights to such software or documentation. Except for the license granted in this section, all right, title and interest in the software and documentation, and all copies thereof, shall remain the exclusive property of Seller or its licensors. This Agreement does not entitle Buyer to the receipt or use of, or access to, software source code or any right to reproduce the software or the documentation, and Buyer agrees that it shall not decompile, disassemble, reverse engineer or otherwise attempt to gain access to the software source code. This license shall terminate and Buyer’s right to use the software shall cease upon termination of this Agreement for any reason. Buyer shall destroy all copies of the software upon termination of the license and shall certify such destruction to Seller in writing.
11. Intellectual Property Indemnification: Seller will defend Buyer against claims based on an allegation by any third party that the Products supplied to Buyer hereunder infringe a patent valid in the European Union issued as of the date such Products were shipped by Seller. Seller will pay the resulting settlement or costs, damages and attorneys’ fees finally awarded by a court, and not subject to further appeal, with respect to any such claims only to the extent of payments made by Buyer to Seller hereunder by the date of such final award. Seller shall only indemnify Seller as set forth in this section if (i) Buyer notifies Seller promptly upon learning that the claim might be asserted, (ii) Seller has sole control over the defence of the claim and any negotiations for its settlement or compromise, (iii) Buyer takes no action that, in Seller’s judgment, is contrary to Seller’s interest and Buyer cooperates with Seller in the defence.
If any Products in the possession of Buyer, or the operation thereof, become, or in Seller’s opinion are likely to become, the subject of such a claim, Buyer will permit Seller, at Seller’s option and expense, (i) to procure the right for Buyer to continue using the relevant Products, (ii) to replace or modify the Products at Seller’s expense so that they become non-infringing or (iii) to substitute for the infringing Products other Products having an equivalent capability. If the foregoing alternatives are not available on terms that Seller in its sole discretion deems reasonable, Buyer will return such Products on written request from Seller. Seller will refund to Buyer the price paid by Buyer for such returned Products as are in undamaged condition less one thirty-sixth (1/36th) of such price for each month from the date of receipt by Buyer until the date returned hereunder. Seller will not be liable to Buyer for any claim arising from or based upon the combination, operation or use of any Product of Seller, with equipment or data not supplied by Seller or arising from any alteration or modification of Products of Seller by anyone other than Seller or its agents authorized to do so. Buyer will hold Seller harmless against any expense or loss resulting from infringement of the rights in the preceding sentence. THE FOREGOING ARE SELLER’S SOLE AND EXCLUSIVE OBLIGATIONS, AND BUYER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.
12. Confidentiality: Buyer shall hold the software and other non-public information about Seller’s technology and Products (the “Confidential Information”) in confidence. Buyer shall not disclose, distribute or make available any part of the Confidential Information to any third par ty without Seller’s prior written consent. Buyer shall take every reasonable precaution to protect the confidentiality of the Confidential Information. Buyer shall not publish any technical description of the Products beyond the description published by Seller. These obligations shall not extend to any information relating to the Confidential Information that is now or later becomes available without restriction to the general public by acts not attributable to Buyer. Buyer acknowledges that Seller’s Confidential Information is unique property of extreme value to Seller, and that unauthorized use or disclosure thereof would cause Seller irreparable harm that could not be compensated by monetary damages, entitling Seller to injunctive and preliminary relief.
13. Product Changes: Seller reserves the right to make substitutions, modifications and improvements to the Products, provided that such substitutions, modifications or improvements shall not materially affect performance of the Products.
14. Breach of Agreement: Seller reserves the right to terminate this Agreement immediately upon notice to Buyer or to declare all sums immediately due and payable and to cancel any order or shipment, without liability to Buyer, in the event that Buyer is in breach of a material obligation hereunder, including, but not limited to, failure to comply with credit terms. If Buyer is in breach, Buyer shall remain liable for all unpaid sums and reimburse Seller for all damages suffered or incurred by Seller as a result of Buyer’s breach. The remedies provided herein will be in addition to all other legal means and remedies available to Seller. Seller reserves the right at Seller’s sole option to require Buyer to accept delivery of and pay for all Products on order as of the termination date. Termination of this Agreement by Seller will be without prejudice to any other remedies Seller may have. Any payment obligations of Buyer to Seller and the obligations of either party under Sections 7(h), 8 – 10, 12, 14 – 16 shall survive termination of this Agreement for any cause.
15. Termination: Either party may terminate this Agreement if either files or has filed against it a petition in bankruptcy or otherwise for the protection of debtors, makes an assignment for the benefit of creditors, has a trustee or receiver appointed for all or substantially all of its assets any of which are not discharged within sixty (60) days. Seller reserves the right at Seller’s sole option to require Buyer to accept delivery of and pay for all Products on order as of the termination date. Termination of this Agreement by Seller will be without prejudice to any other remedies Seller may have.
- No Waiver: Failure of Seller to enforce at any time any of the provisions hereof will not be construed to be a waiver of the right of Seller thereafter to enforce any such provisions.
- Assignment: Buyer will not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller, and any such attempt at assignment will be null and void. Seller will be entitled to assign all or any portion of this Agreement.
- Governing Law and Disputes: This Agreement will be governed by and construed in accordance with the laws of France without regard to the conflict of laws provisions thereof. Any suit hereunder will be brought solely in the competent court in Versailles, and Buyer hereby submits to the personal jurisdiction thereof. The parties exclude from this Agreement the United Nations Convention on Contracts for the International Sale of Goods.
- Waiver: The failure of either party at any time to require performance by the other party of any provision of this Agreement will not affect in any way the full rights to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provision of this Agreement be taken or held to be a waiver of the provision itself.
- Force Majeure: Other than Buyer’s obligation to make payment for amounts due and payable under this Agreement, neither party shall be responsible for delays in fulfilment of obligations under this Agreement due to causes beyond its reasonable control.
- Notices: All notices under this Agreement shall be in writing at the address first set forth above or as provided by each party to the other.
- Severability: If any portion of this Agreement is held invalid, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement, and the parties shall seek in good faith to agree to substitute for the invalid provision a valid provision that most closely approximates its terms.
- ENTIRE AGREEMENT; MODIFICATIONS: this agreement, including all exhibits hereto, supersedes all proposals, oral or written, all negotiations, conversations or discussions between the parties and contains the entire understanding and agreement of the parties relating to this subject matter. buyer represents and agrees that it has not relied on any representation or warranty other than those contained herein in entering into this agreement. NO MODIFICATION TO THIS AGREEMENT, NOR ANY WAIVER OF ANY RIGHTS, SHALL BE EFFECTIVE UNLESS AGREED TO IN A WRITING SIGNED BY BOTH (I) BUYER AND (II) S ELLER’S GENERAL COUNSEL.