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 |
|---|---|
| 1-30 31-90 91 or more | 100% 50% 25% |
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.
6. Payment
- 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.
7.Warranties
- 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.
16. General
- 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.