Conditions of sale

Purpose

These GTCS are adopted pursuant to article L. 441-6 of the French Commercial Code and shall apply to all business activities of the Company (sales of products and/or provision of services). They form an integral part of the business offer (e.g., quotation, commercial proposal), hereinafter the “Offer” issued by the Company. In no event will the general terms and conditions of purchase of the Customer prevail over these GTCS. By accepting the Offer, the Customer hereby agrees with all provisions of the GTCS, unless expressly agreed otherwise in the Offer or specific arrangement between the Customer and the Company to deviate from any of the provisions hereafter. Any correction or handwritten alteration that changes the content and/or pricing of the Offer shall be deemed null and void, and shall not be enforceable against the Company. Any change request in connection with the Offer shall give rise to the drafting of a new proposal.

Formal consent of the customer

The Company will only start providing services (within the scope of this Agreement) upon Customer’s acceptance of the Offer. Unless otherwise agreed between the parties, no partial acceptance is admissible. It may be an express acceptance (i.e., the signing of the commercial proposal, of a quotation, etc.) or implied, i.e. resulting from the start of performance of the services requested by the Customer. Absent any legal documentation specifically drafted to formalize the parties’ agreement after this acceptance, the Offer (as accepted by the Customer) together with these GTCS shall form the Agreement governing the relationships between the parties.

Effective date / term

The effective date and term of the Agreement are detailed in the Offer.

Evolution and / or change to the services

Any extension or change to the services provided by the Company in performance of the Agreement shall be formalized in an amendment. Services not mentioned in the Offer (or presented to the Customer in the Offer but not priced) are excluded from the scope of this Agreement. The Company reserves the right to modify the order with an equivalent product, in the event of unavailability or reference evolution.

Delivery / acceptance

Ordered products are shipped subject to availability. Delays in delivery may not give rise to payment of damages, price retainers or cancellation of ongoing orders. Ordered products are shipped at Customer’s own risks, delivery checks must be performed at the time of delivery of the products. It is up to the Customer, in case of damaged or missing items, to make all necessary observations and confirm reservations by extra-judicial act or by registered mail with acknowledgement of receipt to the carrier within 3 (three) days of products delivery. Without prejudice to measures to be implemented against the carrier, complaints regarding conspicuous defects or non-compliance of the delivered product with (i) the ordered product or with (ii) the shipping documentation must be expressed in writing within 8 (eight) days of the arrival of the products. It will be up to the Customer to provide any supporting documentation as to the actual defects or anomalies reported. The Customer shall grant the Company the opportunity to assess said defects and correct the same. The Customer shall refrain from any personal intervention or from resorting to a third party intervention to that end.

With respect to IT services provision, it is expressly agreed that any commissioning or use of any developments (batches, deliverables, etc.) for operating purposes, on Customer’s request, shall be deemed as a final acceptance of said developments without reservations.

Transfer of risk – retention of ownership

Without prejudice to provisions relating to software products, the transfer of ownership in the products to the Customer shall occur only upon the effective payment of the full purchase price, including interests and costs as well as other sums attached to such products. However, the transfer of risks of loss or damage (even in the case of a force majeure or fortuitous event) shall occur upon the delivery date. As a result, the Customer shall subscribe all necessary insurance policies in this regard. In the event of a loss, the Company shall automatically be subrogated to the Customer in the benefit of the insurance indemnities owed to the Customer, up to the remainder of the sums due by the Customer to the Company. In the event of Customer’s default in payment of software license fees, the Company reserves the right to prohibit Customer’s use of the software product, subject to a 30 (thirty)-day prior notice (by registered mail with acknowledgement of receipt).

Obligations of the parties

Mutual obligations

The parties shall perform the obligations under the Agreement in good faith. In this respect, each party shall:

-       warn the other party of any event that may jeopardize the performance of that party’s obligations under the Agreement;

-       not hinder, impede, delay or make the performance of the services more expensive;

consult with the other party immediately to handle any unexpected situations or circumstances that require decision-making.

Company’s obligations

The Company shall provide the Customer with advice and expertise in Company’s areas of business activities. The Company shall use all reasonable professional care for services performance. Unless otherwise provided, schedules (delivery timelines, milestones, planning) are for information purposes only and may depend on a complementary study.

Intervention timeslots for hardware maintenance: from Monday to Saturday (excluding public holidays); equipment requiring certification: from Monday to Friday (excluding public holidays).

Customer’s obligations

The Customer shall:

-       define its actual needs, constraints and objectives as precisely as possible;

-       provide the Company, in due course, with all elements required to enable the Company to achieve the mission within the agreed timeline (if any);

-       check, in due course, the documents that are subject to Customer’s approval and, as the case may be, clearly express its remarks and justify its observations or disagreements;

-       protect itself from any risks in connection with viruses, loss of files, programs and any other documents (by copying such elements prior to any intervention) and monitor available free space on discs to maintain regular operation of application software;

-       not to pursue any improper use or resort to non authorized third party providers.

Our agreements do not cover breakages, floods, lightning strikes, power lines surges, fire, strokes, fall of the device or of any element on the device, negligence or misuse, malicious intent and, in general, any causes other than those resulting from a standard use of equipment. Interventions in connection with such causes will be invoiced based on hourly rates and actual costs.

The Company has formalized the Offer based on information provided by the Customer. The Customer is informed that any inaccuracy or omission in the provision of information may trigger planning delays, budget overspending, non-feasibility etc. In such occurrence, the Customer will assess which actions need to be taken but will not be able to rely on such events as a ground to trigger Company’s liability and/or as a reason for not paying invoices relating to services already performed.

Intellectual property

The Company may develop creations, such as software developments, logos, designs, visuals, etc. (hereafter the “Creations”) or may grant software licenses of use (hereafter the “Software”) protected by intellectual property rights.

Subject to full payment of the price, the Customer acquires a personal, non exclusive, non assignable and non transferable right to use the Creations and/or Software, excluding (i) any reproduction right (except for the Software back-up copy) or (ii) any right to adapt, translate, arrange or otherwise modify the Software or Creations. With respect to third party software, the Customer shall comply with the license of use as provided by the software editor. The Company may provide services requested by the Customer on third party software to the extent the Customer obtains prior required permissions from the relevant rights holder. As a consequence, the Customer warrants that it has obtained all such permissions and shall hold harmless the Company from and against any infringement action that could be initiated by the rights holder, arising out of Company’s performance of any of such services as requested by the Customer.

The Customer shall implement all appropriate measures required for compliant use of the IT system and shall benefit from an environment suitable for the requested computerization. Under no circumstances the Company grants any warranty of fitness for a particular purpose. There is no warranty that the IT system is fit for the performance of specific tasks as envisaged by the Customer.

Warranties

Hardware: hardware sold and delivered by the Company is subject to warranty terms and conditions as provided by supplier.

Software: the Company warrants that its developments comply with its technical specifications, excluding any other warranty of performance or result, and subject to Customer’s use of Software in compliance with (i) the documentation supplied by the Company and (ii) the specific terms and conditions.

-       Third party software: third party software warranty is as provided in the licenses of use disclosed by the software editor.

-       Standard Software edited by the Company: the Company warrants that its standard software products comply with their documentation. The Company does not warrant that such standard software comply with Customer’s needs.

Infringement warranty: the Company declares that it holds all necessary rights in Software and Creations made available to the Customer. The Company shall hold harmless the Customer from and against any third party claims and shall bear all consequences of such claims.

Price – invoicing and payment modalities

Prices are in euro, all applicable taxes, duties or public levies excluded. The Customer shall bear travel costs, expenses for meals and accommodation of Company’s personnel, as well as hardware shipping costs.

- A down-payment invoice is issued upon order, amounting to 30% for software, services, consulting and developments and 50% for hardware. Any complementary administrative operation (copy of invoice, split payment…) will be subject to a complementary invoice of €125 (VAT excluded) for administrative costs.

- Each invoice must be paid at the due date. Any dispute regarding an invoice shall be notified in writing no later than 10 (ten) days as from the date of issuance of the relevant invoice. If no dispute is notified under this timeline, such invoice shall be deemed as accepted. As a general rule, payments shall be made by wire transfer or by truncated bills of exchange or cheques payable to the Company, on the bank account referenced in the bank identification document disclosed to the Customer.

- Pursuant to French Decree No 2012-1115 of 2 October 2012, a fixed indemnity for recovery costs of €40 will be due automatically, in addition to penalties for late payment.

Indexation

With respect to agreements involving sequential performance, prices shall be revised annually. Revision shall be made in accordance with the following formula: R = Ro (I/Io) under which:

R: revised price;

Ro: initial price (for the first price revision) and then last revised price;

I: last SYNTEC index as known at the revision date;

Io : for the first price revision: SYNTEC index as known at the signing date of the Agreement; for the next revisions: SYNTEC index used for the last revision.

Payment terms – payment incidents

Any invoice must be paid at the due date, i.e. 30 days net as from issuance date, save specific provisions mentioned in the order (that may not exceed French statutory maximum terms of payment, i.e. 60 (sixty) days net date of invoice or 45 (forty-five) days end of month).

In the event of non observance of these terms of payment (and without any need to issue a registered mail to the Customer), the Company shall be entitled to apply an interest rate of 3 (three) times the French legal interest, calculated per day of delay as from the due date of the invoice until the date of effective payment.

In addition, should an invoice not be settled upon the due date, the Company shall be entitled to suspend performance of the services until complete settlement of said invoice (in application of the French contractual principle of “exception for non performance”). Company’s non performance of a non essential obligation may not justify non-payment of the full amount of an invoice.

Termination of services agreements

Upon expiry of the initial contractual period and unless either party terminates the services Agreement at least 3 (three) months prior to the expiry date, this services Agreement shall be automatically extended for an additional 1 (one) year period.

As a consequence, either party is entitled to terminate the services Agreement at any time, subject to a 3 (three)-month prior notice (registered mail with acknowledgement of receipt sent to the other party’s registered office address).

Resources

The Company shall remain the exclusive employer of resources assigned to the performance of this Agreement. As a consequence, irrespective of the term of the Agreement, Company’s resources shall remain under the exclusive direction and under the exclusive administrative, disciplinary, and functional authority of the Company (exclusively authorized to issue directives and instructions). The layout of Company’s team assigned to services performance under this Agreement as well as the skills of team members are determined under Company’s responsibility, considering the nature and volume of services to be performed.

Termination of the agreement

Termination for breach

In the event of a party’s breach of one of its essential obligations under the Agreement that is not remedied within 30 (thirty) days of the issuance of a registered mail with acknowledgement of receipt (notifying the relevant breach and the 30 (thirty)-day timeline to remedy the same), the other party shall be entitled to cancel the Agreement, without prejudice to potential rights to claim damages. During such 30 (thirty)-day period, the Customer shall carry on paying invoices in full.

Should the non defaulting party decide to enforce this termination right, it should notify the termination (including grounds justifying the same) to the other party by registered mail with acknowledgement of receipt.

Termination for contractual imbalance

The parties shall negotiate the provisions of the Agreement in good faith in circumstances where the initial balance of reciprocal services is impaired to such an extent that the Agreement has no further interest for one of the parties. In this respect, the Company may ask the Customer, by registered mail with acknowledgement of receipt, the amicable termination of the Agreement if such party is subject to unforeseeable difficulties in performance of the Agreement, which resolution would require the implementation of means incommensurate with the value of the Agreement (while the Customer would not agree with changes suggested by the Company). In such occurrence, the Agreement will be cancelled on the basis of services performed.

In both cases above, termination will be effective as from receipt of the registered mail. With respect to agreements involving sequential performance, the parties expressly agree that termination shall not trigger retroactive termination of the Agreement. As a consequence, termination shall be effective (at the earliest) upon the date of receipt of the registered mail and for the future only. Provisions regarding liability, confidentiality, infringement warranty, intellectual property shall remain effective after the end of the Agreement. Termination shall occur as of right, without the need for a judicial decision.

Assignment

Either party may not assign this Agreement, partially or totally, against payment or free of charge, without the prior express consent of the other party, except:

-       if substituting the contracting party is part of an operation enabling the set up of an indivisible entity (merger, demerger, partial contribution of assets,…);

-       if one of the parties transfers the Agreement to one of the company of the group that such party belongs to, the group being defined as all companies controlled by one sole company, within the meaning of article L.233-3 of the French commercial code.

Where the other party’s prior express consent is required, such party may not refuse to consent except if based on legitimate commercial interests. Finally, for a 1 (one) year period as from the assignment of the Agreement, the assignor shall warrant the solvency of the assignee up to the sums due pursuant to the Agreement. Changes that do not impact the legal capacity of one of the parties, such as changes in shareholding, shall not be deemed as an assignment and shall not trigger any termination of this Agreement.

Liability

Each party shall be liable for any damages that such party and/or its sub-contractors causes to the other party or third parties arising out of the Agreement. Each party shall hold harmless the other party and its insurers from and against any damages and/or liability that such other party may bear in this respect.

Pursuant to provisions of section 1147 of the French Civil Code, neither party may be held liable and no damages may be claimed in connection with delays in performance or non performance of contractual obligations, if due to an external cause that cannot be attributed to such party and in particular for third party acts or the other party’s acts, it being specified that such circumstances do not have to qualify as force majeure events.

In addition, the parties agree, in case of a duly proven breach, to limit liability as follows: whatever the nature, grounds and modalities of the action initiated against the Company, the aggregate total amount of indemnities that may be due each year, as a compensation for Customer’s prejudice, shall not exceed the yearly amount of the Agreement.

Our software solution may operate on CE marked and certified hardware only, irrespective of the supplier or maintenance provider for such hardware. Such equipment must not conflict with Company’s software solution in connection with general legal compliance. Responsibility for hardware CE marking and certification lies with manufacturers.

The parties agree that financial or commercial prejudice (e.g. loss of profit, loss of turnover, loss of orders, loss of data, damage to reputation, and any business disturbance…) shall not be considered as foreseeable damages within the meaning of section 1150 of the French Civil Code and, as a consequence, shall not give rise to compensation. This article shall survive the expiry of this Agreement for any cause (including without limitation cancellation, termination, exception for non performance).

Circumstances beyond the control of the parties

Neither party shall be liable for non performance of its contractual obligations to the extent this results from a force majeure event as defined by the French Civil Code and French case-law. In addition, the force majeure event shall release a party from its contractual obligations only to the extent (and during the period) such party is prevented from performing the same.

The party impacted by a force majeure event shall notify the other party immediately by fax or any other means, confirmed by registered mail with acknowledgement of receipt (producing all useful justifications). Should the force majeure event last for more than 30 (thirty) consecutive days, the parties would discuss measures to be implemented, based on circumstances. Should the parties not reach an agreement within 15 (fifteen) days of the registered mail notifying the force majeure event, each party would be entitled to immediately terminate the Agreement as of right, partially or totally, without giving rise to any indemnification for either party. The Company may not be held liable and no damages may be claimed in connection with delays in performance or non performance of contractual obligations, in the following cases: troubles, disasters, social unrest, hardware failure, malfunction or interruption of telecom networks, fire, flood and water damage, interruption in electrical network supply, it being specified that such circumstances do not have to qualify as force majeure events.

Applicable law– amicable settlement- jurisdiction

This Agreement is construed in accordance with and governed by French law. In the event of a dispute in connection with services performance under this Agreement, or interpretation of this Agreement and in order to seek for an amicable solution to such dispute, the Customer and the Company, prior to any judicial action, shall meet within 15 (fifteen) days of receipt of the registered mail sent by the earliest party to the other. Such meeting shall result in the drafting of a report signed by both parties. Should the parties fail to reach amicable settlement or for any other kind of disputes, ANY SUCH DISPUTE SHALL BE EXCLUSIVELY SETTLED BY THE COURTS WITHIN THE JURISDICTION OF THE PARIS COURT OF APPEAL, NOTWITHSTANDING MULTIPLE DEFENDANTS OR WARRANTY PROCEEDINGS, INCLUDING FOR INTERIM, SUMMARY PROCEEDINGS OR PETITIONS. The parties hereby assign to the judge the mission to rule as an “amiable compositeur”.

Final provisions

The Customer authorizes the Company to mention its name on reference lists that it may disclose to prospective clients and current clients, and to make public statements of Customer’s choice, as a business reference.

The Customer waives any right to initiate an action against the Company to the extent the Customer has not expressed observations in writing to the Customer within 1 (one) month of services performance, such services being deemed as accepted by the Customer following such period.