Terms and Condition of Sales
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ACCEPTANCE
THE TERMS AND CONDITIONS CONTAINED HEREIN APPLY TO ALL PURCHASE
ORDERS ENTERED INTO BY Industrial Smart Software Technology S.A.
(IS2T S.A.). ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS OR
CONDITIONS ON BUYER'S PURCHASE ORDER, SPECIFICATIONS, OR OTHER
DOCUMENTS ISSUED BY BUYER SHALL BE WHOLLY INAPPLICABLE AND SHALL NOT
BE BINDING IN ANY WAY ON IS2T S.A.. ACCEPTANCE OF BUYER'S OFFER IS
EXPRESSLY MADE CONDITIONAL ON BUYER'S ASSENT TO THE TERMS AND
CONDITIONS CONTAINED HEREIN. NO WAIVER OR AMENDMENT OF ANY OF THE
PROVISIONS CONTAINED IN THESE TERMS AND CONDITIONS SHALL BE BINDING
ON IS2T S.A. UNLESS MADE IN A WRITING EXPRESSLY STATING THAT IT IS
SUCH A WAIVER OR AMENDMENT AND SIGNED BY AN OFFICER OF IS2T S.A.. PRICES
The prices for products and services covered hereunder shall be
those agreed upon between the parties; provided, however, that if
such prices are based on the purchase of a particular quantity of
products and Buyer fails to purchase such quantity of products, IS2T
S.A. shall have the right (in addition to any other remedies
available at law) to collect from Buyer the difference between the
price paid by Buyer for the products purchased and the price for
such products commensurate with the quantity actually purchased by
Buyer. Unless otherwise agreed upon between the parties, the prices
stated herein do not include any taxes or customs duties. Buyer
shall pay, in addition to the prices stated, the amount of any
present or future taxes and/or customs duties applicable to the sale
of products or performance of services, or in lieu thereof, Buyer
shall supply IS2T S.A. with an appropriate tax exemption
certificate. TERMS OF PAYMENT
(a) All payments shall be due and payable at the date stated in the
Invoice. All amounts past due shall incur interest at three (3) times the French
Legal Interest Rate (at the invoice date). All payments shall be made to IS2T
S.A. at the address specified on the front of the invoice. If
products or services covered by these terms and conditions are not
delivered or performed at one time, Buyer shall pay for the quantity
of products delivered or services performed. Each shipment shall be
considered as separated and independent transaction. (b) All
shipments, deliveries, and performance of work by IS2T S.A. shall at
all times be subject to the credit approval of IS2T S.A.. As part of
this credit approval, IS2T S.A. may at any time decline to make any
shipments or deliveries, perform any work, and/or impose such other
terms or conditions or security arrangements as IS2T S.A., in its
sole discretion, deems appropriate. TITLE AND DELIVERY
(a) All shipments by IS2T S.A. are DDU IS2T S.A.'s facility, or, if
applicable, IS2T S.A.'s subcontractor's facility (Delivery Duty
Unpaid as defined in Incoterms 2000). Title and risk of loss or
damage to products shall pass to Buyer upon delivery. (b) Buyer
acknowledges and agrees that the delivery dates are estimates only
and may be changed. IS2T S.A. will use commercially reasonable
efforts to deliver in accordance with the delivery dates, however,
IS2T S.A. will not be liable for failure to deliver as estimated.
(c) In the event that IS2T S.A.'s ability to supply products becomes
constrained, for any reason whatsoever, IS2T S.A. may reduce
quantities, delay shipments, change delivery Media (or choose
another way to deliver such as FTP File Transfer Protocol), or
allocate products among its customers at its discretion. (d) Buyer
may not cancel, push-out, or reschedule any purchase order placed
with IS2T S.A.. If the product delivered by IS2T S.A. needs special
means to be usable by the Buyer (such as, but not limited to, being
activated), IS2T S.A. will provide the special means in order to
make the product usable in 4 (four) working days after Invoice date
and will delay the validity period (if applicable) of product by 4
(four) working days. CONSUMER PROVISIONS
If the Buyer is a consumer, in accordance with the French Law
definition, the non optional provisions of the French Consumer law
will apply for his order. If the purchase is performed from IS2T
website, the buyer being a consumer will be allowed to cancel his
purchase within a period of seven (7) days that follows the
reception of the Invoice from IS2T IF AND ONLY IF the Buyer has not
yet requested the Product activation (if applicable) during those
seven (7) days. After activation, no cancellation will be possible
and the transaction will bind the buyer. FINAL USER LICENSE AND SUPPORT AGREEMENT
This Terms and Conditions of sales shall be completed by the
applicable Software License Agreement and/or the Support and Update
Agreement; and/or the Manufacturing Contract. Buyer shall refers to
those terms and conditions for everything that concerns Intellectual
Property Rights and infringement, Products use, limitation of
liability, warranty and support. NUMBER OF AVAILABLE USER
The number of user who can use the products shall be stated in the
Invoice. This limitation of use shall be managed by the license key
security management software (or hardware), delivered with the
product. BREACH
Any one of the following acts by Buyer shall constitute a material
breach of Buyer's obligations hereunder: (a) Buyer fails to make
payment for any products or services in full when due; (b) Buyer
fails to accept conforming products or services supplied hereunder;
or (c) filing of a voluntary or involuntary petition in bankruptcy
against Buyer, the institution of any proceeding in insolvency or
bankruptcy (including reorganization) against Buyer, or an
assignment for the benefit of creditors of Buyer. In the event of
Buyer's material breach, IS2T S.A. may (in addition to any other
rights or remedies provided herein or at law), by written notice to
Buyer, terminate its obligations or any part thereof, without any
liability to IS2T S.A.. Buyer shall pay all costs, including
reasonable attorney's fees, incurred by IS2T S.A. in any action
brought by IS2T S.A. to collect payments owing or otherwise enforce
its rights. FORCE MAJEURE
Neither party shall be liable hereunder due to any cause beyond its
control, if that cause is an event considered to be a "Force
Majeure". The "Force Majeure" legal Criteria are :
unpredictable, extern to the party and irresistible. The event that
can be considered as Force Majeure could be (but not limited to)
riots, floods, war, warlike hostilities, fires; embargo, shortage of
labor, power, fuel, means of transportation or common lack of other
necessities. GENERAL
During this business relationship, IS2T S.A. will use Buyer related
data, including but not limited to Buyer address and contact person.
Unless otherwise agreed, Buyer accepts that such data will be used
and distributed within IS2T S.A. and to certain third parties, such
as subcontractors. |
In accordance with the French Act No. 78-17 of 6
January 1978 concerning data processing, files and civil liberties,
on Buyer's request, and regardless of the time of Buyer's request,
IS2T S.A. will delete or modify the professional or personal data
Buyer have furnished. If Buyer wishes to access its professional or
personal data, or have them modified, rectified or deleted, Buyer
must send his or its request by mail to IS2T department. Each party's confidential or proprietary information may, if required by the the Buyer or IS2T S.A., be further defined and protected by separate Non-Disclosure Agreement (NDA) and each party of this NDA's sole and exclusive obligations with regard to such confidential or proprietary information shall be as set forth in such agreement. IS2T S.A. and Buyer agrees that they shall comply with all applicable laws, regulations, and administrative rules. RESPONSIBILITIES
IS2T S.A. shall use commercially reasonable efforts to design and/or
develop the product set forth herein, and shall use commercially
reasonable efforts to meet the schedule for each milestone of the
design and development. Except as agreed to by the parties, IS2T
S.A. shall provide all technology, labor, material, tooling, and
facilities necessary for such design and development effort. Buyer
shall provide the specifications and other related information for
such product. CHANGES
Buyer may propose changes to the specifications by submitting a
detailed proposal to IS2T S.A. in writing. IS2T S.A. will then
estimate the amount of rework necessary and the additional
development time and cost that would be incurred, and shall request
Buyer's approval of such additional cost and development time. Upon
written receipt of such approval, IS2T S.A. will proceed with the
changes and the schedules will be amended to reflect the new dates
and additional payments (if any) resulting from such changes. TERMINATION
(a) During performance of the design and/or development, either
party may terminate the design at its convenience upon written
notice to the other party. If the design is terminated by IS2T S.A.,
Buyer shall not be liable for any payment for work performed by IS2T
S.A. for the milestone during which such termination occurs. If the
design is terminated by Buyer, Buyer shall be liable to IS2T S.A.
for full payment for the milestone during which such termination
occurs, regardless of the amount of work actually performed by IS2T
S.A. for such milestone. (b) During performance of the design and/or
development, either party may terminate the design in the event of
material breach by the other party upon thirty (30) days prior
written notice (except for non-payment which only requires ten (10)
days notice) specifying such breach to the breaching party. If,
during such period, the breaching party cures such breach (or, if
the cure cannot be effected within such period, the breaching party
commences to cure), no such termination shall occur. If the design
is terminated by IS2T S.A. for breach of Buyer, Buyer shall be
liable to IS2T S.A. for the full payment of the milestone during
which such termination occurs, regardless of the amount of work
actually performed by IS2T S.A. for such milestone. If terminated by
Buyer for IS2T S.A.'s breach, Buyer shall not be liable for any
payment for work performed by IS2T S.A. for the milestone during
which such termination occurs. THE PROVISIONS OF THIS SECTION
CONSTITUTE THE SOLE LIABILITY AND RESPONSIBILITY OF EACH PARTY, AND
THE SOLE AND EXCLUSIVE REMEDY OF EACH PARTY, IN THE EVENT OF ANY
BREACH HEREUNDER DURING THE DESIGN AND/OR DEVELOPMENT. ARBITRATION CLAUSE
IS2T S.A. and the Buyer agree to submit to mediation in accordance
with the WIPO Mediation Rules any dispute between IS2T S.A. and the
Buyer, including but not limited to those arising under, out of or
relating to the Invoice, the License or the Support an Update
Agreement, the Production contract and any subsequent amendments
thereto. The place of mediation shall be Paris, France. The language
to be used in the mediation shall be English. Disputes where the claimant is exclusively asserting claims for a monetary amount of less than fifty thousand euros (€ 50,000). IS2T S.A. and the Buyer further agree that, if, and to the extent that, any such dispute where the claimant is exclusively asserting claims for a monetary amount of less than fifty thousand euro (€ 50,000) has not been settled pursuant to the mediation within sixty (60) days of the commencement of the mediation, it shall be referred to the French Commercial Court of Nantes. Alternatively, if, before the expiration of the said period of sixty (60) days, either party fails to participate or to continue to participate in the mediation, the dispute shall be referred to French Commercial Court of Nantes. All other disputes, including disputes where the claimant is asserting claims for a monetary amount equal to or above fifty thousand euros (€ 50,000) and disputes where the claimant is asserting claims concerning issues that are not quantified in monetary amounts. IS2T S.A. and the Buyer agree that if, and to the extent that, any such other dispute including dispute where the claimant is asserting claims for a monetary amount equal to or above fifty thousand euros (€ 50,000) and dispute where the claimant is asserting claims concerning issues that are not quantified in monetary amounts has not been settled pursuant to the mediation within sixty (60) days of the commencement of the mediation, it shall, upon the filing of a Request for Arbitration by either party, be referred to and finally determined by arbitration in accordance with the WIPO Expedited Arbitration Rules. Alternatively, if, before the expiration of the said period of sixty (60) days, either party fails to participate or to continue to participate in the mediation, the dispute shall, upon the filing of a Request for Arbitration by the other party, be referred to and finally determined by arbitration in accordance with the WIPO Expedited Arbitration Rules. The arbitral tribunal shall consist of a sole arbitrator. The place of arbitration shall be Paris, France. The language to be used in the arbitral proceedings shall be English. The dispute referred to arbitration shall be decided in accordance with the French law. ENTIRE AGREEMENT
This document constitutes the entire, complete, and exclusive
agreement between the parties with respect to the subject matter
hereof and contains all the agreements and conditions of sale; no
course of dealing or usage of the trade shall be applicable unless
expressly incorporated herein. The terms and conditions contained
herein may not be added to, modified, superseded or otherwise
altered except by a written modification signed by the IS2T's Branch
Manager. All transactions shall be governed solely by the terms and
conditions contained herein. |