The FOLLOWING TERMS AND CONDITIONS OF SALE (THE "GENERAL TERMS AND CONDITIONS"), SHALL CONSTITUTE THE APPLICABLE TERMS AND CONDITIONS BETWEEN THE BUYER AND THE COMPANY OF THE LINXENS GROUP INDICATED ON THE PRICE QUOTATION (THE "SELLER") FOR THE SUPPLY OF GOODS AND/OR SERVICES (THE "PRODUCTS"), AND COVER ALL CONTRACTS CONCLUDED BETWEEN THE BUYER AND THE SELLER.
Article 1 - Formation of Contract - Entirety - Changes
1.1. The contract (the "Contract") consists of (i) the offer of the Seller and the General Terms and Conditions and (ii) any special terms and conditions (the "Special Terms and Conditions"), expressly accepted by the Seller, which override it. No other document, other than those accepted in writing by the Seller as being part of the Special Terms and Conditions, shall have any contractual value whatsoever. In the event of contradiction between any one of these documents, the Special Terms and Conditions shall take precedence over the General Terms and Conditions. Any change to the General Terms and Conditions shall be subject to explicit, written acceptance by the Buyer and the Seller. The Seller shall only be bound by the terms of the Contract from the moment of its express written consent. From the time of this acceptance, the Buyer shall no longer be able to change or cancel its order, unless the prior written agreement of the Seller has been obtained. All quotations issued by the Seller are deemed to be valid for a period of thirty (30) calendar days following their date of issuance.
1.2. The Special Terms and Conditions may provide that the Contract shall enter into force only when some or all of the following conditions have occurred: (i) receipt of the agreed down payment; (ii) receipt of the contractually compliant documentary credit; (iii) the procurement of export credit guarantee insurance; and/or (iv) the procurement of any authorisation required by the relevant administrative authorities. If the above-mentioned provisions are not met within forty-five (45) days from the date of acceptance of the Contract, the Seller may consider the Contract has lapsed and confirm this by registered letter with acknowledgement of receipt sent to the Buyer.
1.3. In order to become applicable, any change to the Contract shall be subject to a written agreement between the parties.
Article 2 - Delivery - Risks - Damage resulting from transport - Ownership
2.1. Unless otherwise specified in the Special Terms and Conditions, the Products shall be delivered Ex-Works at Seller’s premises as per the Incoterms 2010 of the International Chamber of Commerce. Partial delivery is permitted.
2.2. In the event that the Special Terms and Conditions provide that the delivery is not to be made EXW (Ex-Works) or FCA (Free Carrier Unloaded) and the Products are damaged in transit, the Buyer must state this when carrying out the usual checks and make reservations on the delivery note handed over by the carrier, precisely describing the damage, keeping a copy of said delivery note. The Buyer shall also immediately confirm said reservations to the carrier by registered letter with acknowledgement of receipt. If the Buyer notices damage to the Products resulting from transport, it must inform the Seller within two working (2) days. Failing this and/or non-compliance with this time frame, the Seller shall not be held responsible for any damage suffered by the Products resulting from transport.
2.3. The Seller retains ownership of the Products sold until full payment of the purchase price. Until this time, the Buyer shall be deemed to be a keeper or depositary of the Products only. For this reason, the Buyer must take all appropriate measures to preserve the integrity of the Products, insure them, and preserve them from any third party measures by drawing attention to the fact that it does not own the Products. The Buyer shall inform the Seller forthwith of any measures taken by third parties on said Products, to allow the Seller to oppose these measures and preserve its rights. In the event of total or partial non-payment of the price on the due date, the Products shall be returned to the Seller upon first request by registered letter with acknowledgement of receipt.
Article 3 - Terms of Performance
3.1. The Buyer shall provide the Seller on a timely basis with all drawings, documents and all other information necessary for performance of the Contract. The Buyer undertakes to supply accurate drawings, documents or information. The Seller can under no circumstances be held responsible for any error whatsoever, in particular with regard to the design or manufacture of the Products consequential to an existing defect in the drawings, documents or information supplied by the Buyer or any third party. In the event of inability to deliver the total quantity of Products specified herein for any reason whatsoever, the Seller may allocate its manufacturing capacities amongst any purchasers, including companies affiliated to the Seller, on such basis as it may be deemed fair and reasonable. The Seller will inform the Buyer of the conditions under which such allocation is to be applied.
3.2. The Buyer is deemed to be a professional in the field, aware of the state of the art. All technical advice, recommendations or services supplied by the Seller, are intended to be used by qualified individuals. The Buyer must be in a position to determine whether the technical information supplied by the Seller is in accordance with its needs. The Seller shall be held responsible for the consequences, harm or losses resulting from use of the said advice, for recommendations or services, only insofar as the Seller supplied patently inaccurate information, or recommendations, which do not comply with normal practice in the field.
Article 4 - Delivery times
Date(s) for delivery or any time limit(s) set forth in the Contract are Seller’s best approximation of such date(s) or time limit(s); the Seller disclaims any liability whatsoever with respect to such delivery date(s) or limit(s). Delivery times shall be automatically postponed or extended in case of delay which is not attributable to the Seller such as occurrence of force majeure or non-fulfilment by the Buyer of its own obligations or of any third party in the performance of its own obligations.
Article 5 - Price - Payment
5.1. Prices are expressed in accordance with the currency and the Incoterm indicated in the Contract (Incoterms 2010 of the International Chamber of Commerce). They include the cost of standard packaging as used by the Seller. In case the cost of the raw materials increases by more than 5%, the prices specified in the Contract may be increased accordingly upon prior notice to the Buyer and provided that the invoice(s) corresponding to the affected Products has (have) not been issued by the Seller as of the date of such increase. Unless otherwise specified, all prices exclude (i) all taxation, duties, contributions, including VAT or any other taxes, as well as (ii) the cost of transport and insurance. The Buyer shall indemnify and hold the Seller harmless for any liability for tax in connection with the sale of the Products. The Buyer undertakes to supply to the Seller all the required information and documents which may be required for payment of VAT, customs duties and any other tax or indirect duty which may be due.
5.2. If the performance of the Contract becomes excessively onerous for one of the parties due to a change in the regulatory or economic circumstances in which the Contract has been concluded to an extent which was not reasonably foreseeable at the date the Contract was concluded, the party affected by the change in circumstances shall notify these circumstances to the other party and shall provide all reasonable information on the damage, loss, cost or expense resulting thereof (the "Hardship Notification"). In this event, the parties undertake to negotiate in good faith as soon as possible after the Hardship Notification, all amendments to the Contract, in particular, all necessary price adjustments which may be reasonably necessary for reaching an equitable agreement, which shall not by amendment of the original terms and conditions of the Contract have any novation effect. In the event that the parties are unable to reach an agreement on the amendments to be made to the Contract, in particular with reference to price, within one (1) month from the Hardship Notification, the party affected by the change in circumstances may notify the other party, giving notice of fifteen (15) calendar days, by registered letter with acknowledgement of receipt, of the termination of the Contract, without indemnity or compensation. During the negotiations, the Contract shall proceed under the terms and conditions initially agreed.
5.3. Invoicing of the Products shall take place at the time of their delivery. Unless otherwise specified in the Special Terms and Conditions, invoices shall be payable thirty (30) days from the date of invoice. In the event of late payment, the Seller may charge Buyer, without prejudice to the exercise of any other rights, interest on all overdue payments based on the interest rate of the European Central Bank (Frankfurt am Main, Germany) as applied to its most recent refinancing operations, plus 10 percentage points, along with a fixed indemnity of €40 for recovery costs. No discount shall be granted for anticipated payment.
5.4. Payments shall be made with no deductions, withholdings, set-offs or other charges of any kind whatsoever, regardless of any disputes, litigation and/or discussions between the Seller and the Buyer.
Article 6 - Warranty
6.1. The Seller warrants that the Products comply with the technical specifications of the Seller and with other undertakings specifically agreed in the Contract, that they comply with French legal and regulatory provisions and/or are free of defects in their design and manufacture. In addition to the legal warranties, the Seller offers contractual warranties for the Products it sells subject to compliance with the conditions set out in the warranty. The list of Products for which a contractual warranty is applicable and the warranty conditions can be accessed at www.Liite-led.com or obtained via e-mail or post at the Buyer’s request. During the warranty period and provided the defect can be directly attributable to the Seller, the Seller may at its option: (i) exchange the defective Products for identical or equivalent Products, or, if an exchange is not possible, (ii) grant the Buyer a credit note for an amount equivalent to the ex. VAT sales price of the defective Products. If the Buyer wishes to invoke the warranty, it shall send the Seller, as soon as possible, a written claim specifying the defect affecting the Product(s) and return the defective Product(s) with the corresponding invoice in order to enable the Seller to verify the validity of the claim. 6.2. Unless otherwise specified in the Special Terms and Conditions, the Seller is not deemed to be aware of the final destination and regulations applicable in the country of destination of the Products, in order to comply with them.
6.3. Subject to the provisions of Article 2.2, the Buyer undertakes to inspect the Products within five (5) working days after their delivery. Failing this, the Products shall be deemed to have been accepted, without reservations, and the Buyer shall not be able to invoke any guarantee whatsoever relating to the conformance of the Products. Reservations made by the Buyer regarding minor defects not affecting the essential functions and/or performance of the Products shall not be an obstacle to acceptance of the Products. With regard to defects affecting the Products, the Buyer must inform the Seller of obvious defects in writing within five (5) working days of delivery of the Products and/or in the case of latent defects, immediately upon their discovery. The Buyer shall then precisely describe the nature of the defects or flaws noted or discovered. Upon Seller’s request, the Buyer shall allow access to all non-conforming Products, or to a sample of the Products as agreed between Buyer and Seller, to allow the Seller or its insurers to carry out any inspection or analysis of the defect or non-conformance at any place the Seller shall deem appropriate.
6.4. In any event, in order to benefit from any warranty whatsoever, the Buyer shall have properly received, handled, stored, installed, implemented or used the Products, and the Products must not have been accidentally damaged, modified, repaired or improperly used. Defects resulting from (i) failure to comply with applicable standards or best practices, (ii) information (particularly relating to design), materials, components, equipment supplied by the Buyer and/or third parties, (iii) modifications and/or repairs made by the Buyer and/or any third party, or (iv) normal wear and tear on the Products due to their use under normal conditions of use shall be excluded from the warranty.
6.5. Returns of Products to the Seller are made at the cost and risk of the Buyer, unless the defect(s) affecting the Products is/are attributable exclusively to the Seller. Incidental costs (disassembly, transport, installation, etc.) will in no event be covered under the contractual warranty. Only the serial numbers attributed to the Products by the Seller shall be valid between the parties. The numbers attributed by the Buyer may only be used to allow the Products involved to be reconciled.
6.6. The Buyer shall not demand any indemnity from the Seller in connection with the costs borne by the Buyer as a result of a defect or non-conformance of the Products until such time as the responsibility of the Seller in this defect or non-conformance has been jointly proven and the amount of resulting damages has been duly justified.
6.7. THE FOREGOING WARRANTIES SET FORTH IN THIS ARTICLE 6 SHALL CONSTITUTE THE SOLE AND EXCLUSIVE WARRANTIES MADE BY THE SELLER TO THE BUYER, AND SHALL CONSTITUTE THE BUYER’S SOLE AND EXCLUSIVE REMEDIES THERETO, AND ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF PERFORMANCE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY COURSE OF DEALING OR USAGE OF TRADE.
Article 7 - Liabilities - Penalties
7.1. THE SELLER, ITS SUPPLIERS AND THEIR INSURERS SHALL INDEMNIFY THE BUYER ONLY FOR DIRECT DAMAGE, EXCLUDING ALL INDIRECT AND/OR INTANGIBLE DAMAGE (CONSEQUENTIAL OR NON-CONSEQUENTIAL). THE OVERALL CUMULATED LIABILITY OF THE SELLER, ITS SUPPLIERS AND THEIR INSURERS, INCLUDING THAT REFERRED TO IN ARTICLES 6 AND 9, SHALL NOT EXCEED THE EX-VAT AMOUNT RECEIVED BY THE SELLER UNDER THE CONTRACT. The Buyer shall indemnify the Seller, its suppliers and its insurers and hold them harmless from any claim exceeding the limit of liability mentioned above and/or from any damages for which they are exempt from liability.
7.2. If the Buyer issues a claim regarding a Product, consideration of the claim by the Seller does not imply acceptance of any breach of contract, and the payment of the relevant invoices shall not be suspended.
7.3. Any claim regarding the Products shall lapse at the end of a period of twelve (12) months from the date of their delivery.
Article 8 - Confidentiality
Both parties (i) undertake to hold confidential any information, whatever its purpose (technical, industrial, financial, commercial or other), of whatever type (know-how, methods, procedures, technical or installation data), in whatever form (written, oral, electronic or other), communicated or divulged by the other party for purposes of the Contract (including the existence of the Contract and its contents); (ii) shall not transmit any of this information to any third party without the prior written consent of the other party, (iii) shall return any information received upon request by the other party, and (iv) shall limit communication of this information solely to members of its staff, who shall be subject to a confidentiality agreement, requiring access to it for the purposes of the Contract, and shall refrain from using the said information for any other purpose than the performance of the Contract. This confidentiality obligation shall remain in force during the Contract and for a period of five (5) years from its expiry or termination. The aforementioned provisions shall not apply to information already in the public domain prior to its divulgation, or which the parties may have legitimately obtained from a third party.
Article 9 - Intellectual Property - Infringement
9.1. The Seller has a proprietary interest in all of the drawings, designs, specifications, documents, information or know-how which may be provided under the Contract and in any know-how, improvement, discovery or invention which may be made, developed or designed in the performance of the Contract or which may arise or result therefrom (“IP”), whether or not the Seller has legally protected intellectual property rights ("IPR") over the IP. All IP shall remain the Seller’s property and shall be deemed to have been loaned to the Buyer only for the purpose of performing the Contract.
9.2. The Seller has title, directly or under licence, to all IPR necessary for the manufacture and sale of the Products. In the event of IPR infringement proceedings brought by third parties, the Buyer shall inform the Seller of such proceedings immediately and in writing. The Seller may choose, at its entire discretion, to take charge of the defence, or not. If the Seller chooses to take control of the defence, the Seller shall hold the Buyer harmless from any financial or litigious consequences. On the other hand, if the Seller leaves the defence in the hands of the Buyer, the Seller shall only be held responsible in the event of final judgment, and subject to faults, carelessness or negligence on the part of the Buyer in carrying out its defence.
9.3. In case the Product or any part thereof furnished hereunder is held in any such suit or proceedings to constitute an infringement and its use is enjoined, the Seller shall, at its option and at its own expense, take one of the following actions: (i) procure for the Buyer the right to continue using said Product or part thereof; (ii) replace it with substantially equivalent non-infringing Product; or (iii) modify it so it becomes non-infringing. The Seller's defence and indemnity, as provided herein, shall constitute complete fulfilment of all its obligations and liabilities to the Buyer with respect to any IPR infringement. The above obligations shall constitute the sole obligations of the Seller in the event of a claim for violation of third party intellectual property rights.
9.4. The Buyer shall fully defend, indemnify and hold the Seller (including its suppliers) harmless from all expenses (including attorney’s fees), damages, losses and/or proceedings arising from any claim, suit or demand by any third party that any Products manufactured according to the Buyer’s (including Buyer’s subcontractors) design, changes, specifications or instructions infringe any IPR.
Article 10 - Tooling: Any tools, machinery, dies, jigs, fixtures or items of like nature manufactured or purchased by the Seller (“Tools”) for the performance of the Contract are the exclusive property of the Seller, even if the Buyer has contributed to part of the costs of the said Tools.
Article 11 - Force Majeure: the Seller shall not be deemed to have been in breach of its obligations to the degree that performance has been impeded by any event, beyond the control of the Seller, which could not have been reasonably foreseen when the Contract was concluded, and whose effects cannot be avoided by appropriate measures. Force majeure shall mean any event beyond the Seller' s reasonable control, such as: acts of God, acts of terrorism, storm, flood, fire, riot, sabotage, prohibition of trade, strike, any combination of workmen, effects of energy and/or raw materials shortage, equipment breakdown, delays in the transport of the same from causes listed herein as force majeure, interference by civil authorities, acts, regulations or orders of any governmental authority (including delay or failure to issue licenses, permits or authorisations of any kind whatsoever), acts of war, or failure to fulfil its obligations on the part of the Buyer. The dates and the periods provided for under the Contract may be postponed or extended as of right for the duration of the force majeure event. If the force majeure event lasts for more than three (3) months, then both parties may terminate the Contract ipso jure (without prior approval of any tribunal) and will mutually agree upon in good faith on the consequences of such termination.
Article 12 - Suspension - Termination
12.1. In case the Buyer fails to pay any sum due to the Seller under the Contract or the Seller considers, at its sole discretion, that the Buyer’s financial conditions are or become unsatisfactory (with or without notice from the Buyer), the Seller shall be entitled to (i) suspend the Contract's performance, or extend the time limit for the Contract’s performance, until full payment of any overdue invoice(s) by the Buyer, and/or (ii) demand immediate payment before delivery.
12.2. Either party shall be entitled to terminate the Contract ipso jure (without prior approval of any tribunal) in the event of a breach by the other party of any of its obligations under the Contract. Under these circumstances, the Buyer shall immediately pay for all the Products delivered and/or being manufactured on the date of termination, without prejudice to the rights of the Seller. Before any termination, the party invoking the breach of contract shall allow the other party a period of fifteen (15) days to cure the defaults. After termination or expiry of the Contract, those terms of the Contract which by their nature are to survive termination shall remain in full force and effect, in particular the warranty, compliance with regulations, intellectual property and confidentiality.
12.3. The Seller shall have the right to suspend all deliveries or to terminate the Contract ipso jure (without prior approval of any tribunal) by giving written notice with immediate effect if: (i) the Buyer becomes insolvent or, (ii) the Seller is of the opinion that the Buyer will not be in a position to fulfil its obligations under the Contract. Such suspension or termination shall be without prejudice to any other rights or remedies available at law. In any case, the Buyer shall: (i) make its best efforts to preserve the physical integrity of the Tools in the Buyer’ s custody and of all Products which have been delivered by the Seller and not fully paid for, (ii) affix indelible stamps on Tools showing the Seller’ s property, and (iii) upon the Seller’s first request, immediately return said Products and/or Tools to the Seller and/or give the Seller full assistance in order for said Products or Tools to be promptly returned to the Seller.
Article 13 - Applicable Law - Settlement of Disputes: THE CONTRACT AND THIS GENERAL TERMS AND CONDITIONS SHALL BE GOVERNED BY THE LAWS OF FRANCE. THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS RELATING TO THE INTERNATIONAL SALE OF GOODS ADOPTED ON 11 APRIL 1980 IS EXPRESSLY EXCLUDED. ANY DISPUTE BETWEEN THE PARTIES ARISING FROM THE CONTRACT OR RELATIVE TO IT SHALL BE SUBMITTED TO THE EXCLUSIVE JURISDICTION OF THE PARIS COMMERCIAL COURT (“TRIBUNAL DE COMMERCE DE PARIS”).
Article 14 - Personal datas
Article 15 - Miscellaneous Provisions
15.1. Any waiver of any of the terms hereunder by the Seller shall not be deemed to be a waiver of any subsequent breach or default of any of the terms herein.
15.2. The Buyer shall not assign and/or transfer all or part of its rights and/or obligations under the Contract to any person or entity without the Seller's prior written consent. The Seller is entitled to assign or transfer any of its rights or obligations under the Contract to any of its affiliated companies as defined by article L.233-3 of the French Commercial Code (Code de Commerce). The Seller is entitled to sub-contract to one or more sub-contractors all or part of its obligations under the Contract.
15.3. The Buyer shall be responsible for all dealings with any relevant governmental authorities and regulatory agencies and shall obtain and maintain, at its own expense, such permits, licences and authorisations as may be required for the performance of the Contract (including for the use, sale or distribution of the Products or performance of services by the Seller) in such country or countries, and shall assist the Seller in obtaining any other visas, permits and customs clearances in this respect, if any.
15.4. The Seller has put in place a Code of Ethics to which it adheres. In this context, the Seller attaches particular importance to compliance with the laws, standards and international regulations applicable to the treatment of employees, protection of the environment, safety at work, job security, underage workers, forced or hidden undeclared work, non-discrimination and respect for Human Rights.
15.5. If any one of the provisions of the Contract is deemed to be null and void, this shall not entail the invalidity of the other provisions of the Contract. The parties undertake to negotiate in good faith to amend the clause involved and to replace it with a clause having an effect as close as possible to that initially desired by the parties.
15.6. The Buyer and the Seller are independent co-contractors and the Contract shall not under any circumstances make one party the agent or representative of the other party for any reason whatsoever. Neither party may take on or create any obligation in the name of the other party.
15.7. The Contract constitutes the entirety of the agreement of the parties as to its purpose and supersedes all previous oral or written agreements of the parties regarding this purpose, unless a specific agreement of the parties to the contrary is expressly mentioned in the Contract. No modification of the Contract by the parties shall be valid in the absence of a written agreement signed by duly authorised representatives of both parties.