TERMS AND CONDITIONS OF SALE

5 Intellectual property and confidentiality

5. 5.1 Intellectual property.

civil or criminal liability on this subject and in particular an action for counterfeiting or unfair competition.

5.2 Confidentiality clause

The parties mutually undertake a general obligation of confidentiality in respect of all information exchanged in the course of preparing and executing the agreement. However, the following are not subject to an obligation of confidentiality: (i) information in the public domain, (ii) anything already lawfully known to the contractual partner prior to the conclusion of the contract, (iii) information which has been the subject of specific prior written disclosure authorization by the other Party. These provisions do not prevent or limit the Seller’s right to use its own know-how and technology developed in connection with the agreement, in the absence of a specific agreement between the Parties.

6. Delivery, transport, inspection and acceptance

6.1 Delivery times

Delivery or performance deadlines run from the latest of the following dates: (i) the date of acknowledgement of receipt of the order; (ii) the date of receipt of all materials, equipment, tooling, drawings and execution details due from the Buyer; or (iii) the date of completion of prior contractual or legal obligations due from the Buyer. Stipulated deadlines may be called into question in the event of circumstances beyond the Seller’s control, such as: force majeure, acts of third parties or of the Buyer. If, for reasons not attributable to the Vendor, the fulfilment of the Vendor’s obligations is postponed, delayed or interrupted, the Vendor will be compensated for the costs incurred, as well as for all additional costs incurred by any effort to accelerate or make up for the delay, and in any event, the Vendor will not be held liable for such postponement, delay or interruption.

6.2 Equipment delivery

Delivery of the Equipment is carried out in accordance with the conditions indicated in the quotation or the Special Conditions, and in the absence of any indication of the place of delivery, is presumed to have taken place at the Vendor’s warehouses, by means of the notice of availability. Risks are transferred to the Buyer upon delivery, without prejudice to the Seller’s right to invoke the benefit of the retention of title clause under the conditions defined in article 9.4, or to make use of its right of retention. Should the Buyer fail to take delivery, and without the need for formal notice, the Buyer shall bear all storage costs and risks from the date of readiness for delivery, and shall comply with the payment terms initially agreed.

6.3 Delivery of the Work

For work carried out in the Vendor’s warehouses, delivery is deemed to have taken place under the conditions specified for Equipment in article 6.2. For work carried out on site, delivery is deemed to have taken place and the risks will be transferred to the Buyer as and when the physical work progresses. The Works will be subject to a joint acceptance formalizing their acceptance by the Purchaser, recorded in an acceptance report. In the absence of a joint acceptance report, acceptance will be deemed to have taken place: (i) if the Seller has satisfied its main contractual obligations, even in the presence of minor reservations; or (ii) if the Buyer has taken possession of or used all or part of the installation which is the subject of the Work.

6.4 Transport, customs and insurance

In the absence of any agreement to the contrary, all transport, insurance, customs, handling and delivery operations are at the Buyer’s expense, risk and peril, and the Buyer shall bear all the financial consequences of any direct action by the carrier against the Seller. It is the Buyer’s responsibility, even if the shipment has been made carriage paid, to check shipments on arrival and, if necessary, to take action against the carriers within three days by registered letter with acknowledgement of receipt in accordance with article L. 133-3 of the French Commercial Code, and to inform the Vendor within the same period.

6.5 Checking equipment and/or work

Upon delivery, the Buyer must, at its own expense and under its own responsibility, check or have checked the conformity of the Equipment and/or Work to the terms of the order.

7. Warranty

Unless otherwise agreed in the Special Terms and Conditions, the Vendor hereby undertakes to guarantee: (i) his Equipment for a maximum period of 12 months from the date of delivery; (ii) his Works for a maximum period of 12 months from the date of acceptance, and which may not exceed a period of 18 months from the date of completion of the Works. In the event of multiple lots, the warranty will take effect upon completion of each lot. In order to invoke the warranty, the Buyer must notify the Vendor, in writing, without delay, and at the latest within 15 days of the occurrence of the defects he attributes to the equipment, and provide any proof requested by the Vendor as to the reality of these defects. The Buyer must give the Vendor every opportunity to ascertain and remedy such defects, and must refrain from carrying out repairs himself or having them carried out by a third party, except with the Vendor’s express agreement, or in the event of an urgent situation. The warranty is excluded for the reasons listed in article 10.2.

8. Unforeseeability and force majeure clauses

8.1 Contingency clause

Notwithstanding the provisions of article 1195 of the French Civil Code, in the event of the occurrence of an event outside the control of the Parties compromising the balance of the agreement to the extent of rendering the performance of its obligations prejudicial to one of the Parties, the Parties agree to negotiate in good faith the modification of the agreement in order to re-establish between them the economic balance initially agreed. In particular, the following events are covered: a substantial increase in the price of

Intellectual property and confidentiality Intellectual property.

Each Party retains sole ownership and disposal of its know-how and the results of its own research and development work. Notwithstanding any clause to the contrary, the Vendor does not grant the Purchaser any right of ownership or license to use the patents, processes, operating procedures, methods, know-how or software used by the Vendor for the purposes of the Equipment and/or Work. Any transfer of intellectual property rights or know-how must be the subject of a specific contract with the Seller. All plans, descriptions, technical documents or quotations provided to the Buyer are communicated on a loan-to-use basis for the purpose of evaluating and discussing the Seller’s commercial offer or executing the agreement. They will not be used by the Buyer for any other purpose. The Seller retains all material and intellectual property rights to the loaned documents. These documents must be returned to the Seller on first request. The Buyer warrants that the content of the drawings and specifications submitted by the Buyer do not make use of any intellectual property rights or know-how held by a third party, and warrants that it may freely dispose of them without contravening any contractual or legal obligation. The Buyer shall indemnify the Seller against all direct and indirect consequences of raw material shortages, changes in customs duties or taxes, changes in exchange rates, changes in legislation, etc., which may affect the Seller’s business.

8.2 Force majeure

None of the Parties to this agreement shall be held liable for its delay or failure to perform any of its obligations under the agreement if such delay or failure is the direct or indirect effect of an event of force majeure, such as, but not limited to: the occurrence of a natural disaster, earthquake, storm, fire, flood, conflict, war, attack, vandalism, imperative injunction by public authorities (import ban, embargo, confinement or other measure taken in the event of an epidemic or other health crisis), operating accident, machinery breakdown, explosion, etc., total or partial strike by the Seller or force majeure affecting subcontractors, service providers, carriers, postal services, public utilities. Each Party shall inform the other Party, without delay, of the occurrence of any case of force majeure of which it is aware and which, in its opinion, is likely to affect the performance of its contractual obligations.

9. Payments

9.1 Price and deposit.

Unless otherwise agreed in the quotation or Special Terms and Conditions, prices are quoted in euros, exclusive of “ex works” duties and taxes, and exclusive of packaging. Payments will be made in euros.
Unless otherwise agreed in the quotation or Special Terms and Conditions, all orders will be subject to payment of a deposit at the time the order is placed, and of instalments to cover costs incurred by the Vendor. It is understood that a deposit is by definition payable in cash. The Vendor reserves the right not to commence or continue the manufacture of the Equipment and/or to commence or continue the Work without the effective payment by the Purchaser of the deposit within the payment deadlines stipulated in article 9.2.

In the event of a partial invoice dispute, the Buyer may not defer payment of the undisputed part of the invoice, nor the payment of other invoices when due.
Payment of the Seller’s invoices as a subcontractor may under no circumstances be made subject to prior payment of the Buyer’s own work services by the project owner or its own customer.

9.2 Payment terms

Unless otherwise agreed in the quotation or Special Terms and Conditions, the Seller’s invoices are payable within thirty days of the invoice date. Contractually agreed payment dates may not be unilaterally challenged by the Buyer under any pretext whatsoever, including in the event of a dispute. Advance payments are made without discount unless otherwise agreed.

9.3 Late payments

In application of Article L 441-10 of the French Commercial Code, any late payment automatically incurs, from the first day following the payment date shown on the invoice: (i) late payment penalties determined by applying the European Central Bank’s refinancing rate plus ten points, and (ii) a flat-rate indemnity for collection costs of 40 euros. Where the collection costs incurred exceed the amount of this flat-rate indemnity, the Seller is also entitled to claim additional justified compensation. In addition to these penalties and indemnities, any non-payment of a due date will, at the Seller’s discretion, result in the payment of the full amount due. The Vendor’s invocation of any of these provisions shall not deprive it of the right to enforce the retention of title clause stipulated in article 9.4.

9.4 Retention of title

The Vendor retains full ownership of the Equipment and/or Work covered by the agreement until payment in full of the principal and incidental price has been made. Failure to pay on any of the due dates may result in the Equipment/Works being reclaimed. However, it is understood that from delivery of the Equipment and/or as the Work progresses, the Buyer assumes responsibility for any damage that the Equipment/Work may suffer (loss, deterioration, etc.) or cause. The Seller also reserves the right to reclaim the Equipment and/or Work from third parties to whom the Buyer has had it delivered.

In the event that the Purchaser sells the Equipment subject to retention of title, he irrevocably assigns to the Vendor the claim arising from the resale, with all its accessory rights. At the Vendor’s request, the Purchaser will provide the full details of the sub-purchaser without delay.

9.5 Modification of the Buyer’s situation.

Should the Buyer’s financial situation deteriorate to such an extent as to affect the performance of its contractual obligations, whether or not confirmed by default of payment, delivery of the Equipment and/or continuation of the Work will only take place after payment of the balance of the order. In the event of late payment, sale, assignment, pledging or incorporation by the Buyer of its business or of a significant part of its assets, the Seller reserves the right, without formal notice, (i) to declare the default of payment and consequently the immediate payment of the sums still due for any reason whatsoever, (ii) to suspend all shipments, Work or other contractual commitments, (iii) to exercise a right of retention on the Equipment ordered, related Equipment and technical documentation, and (iv) to terminate the agreement or contract in progress and to retain the tooling and parts held, until such time as damages have been awarded to compensate the loss suffered by the Seller.

9.6 Payment compensation

The Buyer shall refrain from any practice of automatic debiting or crediting, and from invoicing the Seller for any sum not expressly accepted by the latter in respect of its liability. The Buyer shall refrain from offsetting receivables without the express prior consent of the Seller. Any automatic debit will constitute an unpaid amount and will give rise to the application of the provisions of article 9.3 concerning late payment.