GENERAL TERMS AND CONDITIONS OF SALES
SUNDYNE INTERNATIONAL S.A.
1. SCOPE
These Terms & Conditions of Sale (hereinafter referred to as these “Terms”) apply to all sales of Goods. Applicable Terms and Conditions for services will be provided upon request. The placing of an order by the Purchaser is subject to these Terms in their entirety and is deemed acceptance of these Terms provided in the Quotation. Accordingly, the Purchaser expressly waives applicability of its own terms and conditions even if those terms are presented subsequent to these. Purchaser expressly accepts that any acknowledgement or delivery of Goods by Seller are only made subject to these Terms and by accepting delivery Purchaser acknowledges these Terms. Any change to these Terms is subject to the Seller’s express acceptance in writing. The Purchaser may not claim any form of implied acceptance of either its own terms and conditions or any changes to these Terms whatsoever. These Terms supersede any and all previous communications, representations or agreements, either oral or written, between the parties with respect to the subject matter.
2. DEFINITION AND INTERPRETATION
In these Terms, except where the context otherwise requires, the following words and expressions shall have the following meanings:
Agreement shall mean documentation applicable to the Order limited to Sundyne Code of Ethics, available upon request, Quotation issued by the Seller, the Order issued by the Purchaser to the extent confirmed by
the Order Acknowledgment sent by the Seller and any appendix expressly mentioned therein.
Confidential information shall mean all confidential and proprietary information including without limitation know-how, intellectual property, ideas, designs, concepts, plans, data, customer details, employee details and other technical, financial or commercial information, together with all notes, records, extracts, copies, reproductions or analysis of any such information, which (whether before, on or after the date of the Order and whether in oral, written, visual, electronic or whatever form or on whatever media or by way of demonstrations or in any manner) is obtained directly or indirectly by or on behalf of one Party (“the Receiving Party”) from or on behalf of the other (“the Disclosing Party”)
and which is expressly marked as confidential or which a reasonable person would consider to be confidential.
End-User shall mean ultimate user of the Goods.
Event of Force Majeure shall mean any cause or circumstance whatsoever beyond either Party’s reasonable control provided the same arises without fault or negligence of the affected Party. Event of Force Majeure includes an act of god, fire, explosion, failure of public utilities or civil commotion, floods, hurricanes, earthquakes, windstorms,
tornadoes, act of terrorism, war (whether declared or not), restrictive governmental Laws or decisions, strikes, lockouts, labor trouble.
Goods shall mean any materials, machinery, equipment, articles, parts, tools, consumables, hardware, software and similar items to be provided as per the Agreement.
Industry Practices shall mean objective norms as defined in the Quotation.
Intellectual Property Rights shall mean all copyright, database rights, topography rights, design rights, trademarks, trade names, trade secrets, utility models, patents, domain names and any other intellectual property
rights of a similar nature (whether or not registered) subsisting anywhere in the world in or associated with the Goods.
Law shall mean any applicable international, national, municipal or state treaty, statute, ordinance, customs regulations (import and export) or other law, regulation or by-law or any rule, code or direction or any
license, consent, permit, authorization or other approval (whether governmental or non-governmental) including any conditions attached thereto as applicable per the Agreement.
Order shall mean the purchase order issued by the Purchaser which shall not be binding on the Seller until the Order Acknowledgement as defined below is issued by the Seller.
Order Acknowledgment shall mean the written confirmation sent by the Seller to the Purchaser. Unless otherwise mutually agreed between the Parties, Order Acknowledgment is subject to these Terms and Purchaser expressly waives any other terms and conditions including its own issued after the Order Acknowledgment.
Party shall mean either the Seller or the Purchaser.
Parties shall mean the Seller and the Purchaser.
Person shall mean any individual, firm, partnership, trust, joint venture, company, corporation, body corporate, unincorporated body, association, organization, any government or state or any agency or a government or state, or any local or municipal authority or other governmental body.
Purchaser shall mean the Person who issues the Order.
Quotation shall mean the written proposal issued by the Seller to the Purchaser in its latest revision and including these Terms.
Seller shall mean SUNDYNE INTERNATIONAL S.A.
Third Party shall mean any person who is not expressly a Party to the Agreement.
For the purpose of the Agreement, except wherever the context otherwise requires:
– Words denoting the singular include the plural and vice versa;
– Reference to each Party herein include references to its successors in title, permitted assigns and novates ;
– The words “include”, “including” and “in particular” shall not be interpreted as limiting the generality of any of the foregoing words;
– Reference to “writing” or “written” includes e-mail and similar means of communication;
– All references to date and time periods in this Agreement shall be construed in accordance with the Gregorian calendar;
– All references to an Incoterm shall be read as per the agreed upon Incoterms version issued by the International Chamber of Commerce
3. FORMATION OF THE CONTRACT
Quotation shall only be considered as binding if the Order strictly conforms to the Quotation, in its latest revision and subject to receipt of an End-user certificate duly signed and stamped by the Purchaser and/or the End-User as may be required by the Seller. Unless stated otherwise, the Quotation is valid for one (1) month after the issuance date thereof.
Sale is considered to have been concluded once the Seller issues an Order Acknowledgement. The Seller shall endeavor to issue an Order Acknowledgement within 8 working days provided (a) the Order strictly conforms to the Quotation, (b) all technical clarifications have been finalized and (c) all information regarding the End-User as may be reasonably required to be fully compliant with any applicable Laws including export obligations has been provided.
Once the Order Acknowledgement is sent to the Purchaser, the Agreement is considered as binding. The Purchaser must notify any error or omission appearing in the Order Acknowledgment within seventy-two (72) hours of its receipt. Thereafter, the Order is considered final, and no claims regarding such error or omission will be accepted.
4. MODIFICATION – ORDER AMENDMENTS
No alteration to or variation of this Agreement or any Order shall take effect unless and until the same is in writing and signed on behalf of each of the Parties by a duly authorized representative, taking into consideration, as the case may be, the impact on the Price, time of delivery and the planning or any other contractual obligation affected by such change.
5. SUBCONTRACTING – ASSIGNMENT OF THE CONTRACT
The Seller reserves the right to subcontract, without the prior agreement of the Purchaser, all or part of the design, procurement, services and other works which are the object the Agreement.
Neither Party may assign, transfer, charge or otherwise encumber, create any trust over or deal in any manner with the Agreement or any right, benefit or interest under it nor transfer, novate any of that Party’s obligations under it without the prior written consent of the other Party which might not be unreasonably withheld or delayed.
6. TESTS AND TRIALS
The Goods are manufactured in full compliance with applicable Industry Practices. Any specific control, test or inspection demanded by the Purchaser and not expressly stated in the Quotation and not accepted in the Order Acknowledgment will be at the exclusive expense of the Purchaser.
7. PRICES
All Prices shown in the Price List, order acknowledgement or otherwise quoted are in Euros unless otherwise specified by Seller. Seller may adjust prices prior to shipment to reflect any extraordinary changes in material costs or availability. Written quotations automatically expire 30 days after submission to Purchaser and are subject to withdrawal or revision within that 30-day period. Seller reserves the right to make corrections due to any typographical or engineering errors, or because of incomplete or inaccurate information provided by Purchaser. Prices shown in any published literature are maintained as a general source of information only and are not quotations or offers to sell.
Unless otherwise stated, all sums payable by the Purchaser under the Agreement are exclusive of VAT and all other applicable taxes, duties, tariffs, and levies, which shall (if and to the extent applicable) be payable by the Purchaser at the rate and in the manner from time to time prescribed by Law. Prices are also exclusive of any customs duty for non-packed Goods on an ex-works basis.
Any Order with a net value exclusive of VAT, taxes (including withholding tax), customs duty of less than one thousand (1000) Euros or the equivalent amount in any other currency will be subject to a flat administration fee of seventy (70) Euros.
8. PAYMENT TERMS
Means and terms of Payment
The Agreement defines the applicable payment terms. Except otherwise specified, payment must be made before the Goods are dispatched. Payments shall be made by direct bank transfer to the Seller’s nominated bank account or by such other means as may be agreed between the Parties from time to time. Unless otherwise agreed, payments shall be made in Euros, net and without application of any discount at thirty (30) days net form invoice date.
Consequences of late payment
Any late payment will give rise from the first day of late payment to: (a) interest at the most recent European Central Bank refinancing rate, plus 10 percent; and (b) a fixed debt-recovery fee of forty (40) Euros. Should the debt recovery expenses incurred exceed the fixed-fee allowance;, additional compensation will be demanded on submission of supporting evidence. Such interest and debt-recovery fee shall be paid within ten (10) days from the date of issuance of the invoice. Without prejudice to any other remedy it may have, in case of late payment, the Seller is entitled to (i) withdraw credit, (ii) suspend performance and (iii) terminate the Agreement. Any suspension under this clause will result in any time lost being added to the delivery date.
Prohibition of set-offs
All sums payable by the Purchaser under this Agreement are payable in full, without set-off, reduction, withholding or counterclaim on any account whatsoever.
9. DELIVERY DATE
The Seller will use reasonable endeavors to make the Goods available to the Purchaser on the date defined in the Order Acknowledgment.
In any event, and independently of any Order Acknowledgment, the delivery date will be modified under the following circumstances:
– The Seller does not have all the information necessary to perform its obligations under the Agreement;
– The Seller has not received the first(s) payment(s) due under the Agreement;
– The Seller has not received the letter of credit, where applicable;
– The performance of the Agreement is suspended due to any Event of Force Majeure.
If liquidated damages are agreed between the Parties, notwithstanding anything to the contrary, such liquidated damages will be the sole remedy to the exclusion of any other rights and remedies arising out or in connection with late delivery.
10. PACKING
The Quotation is based on the Seller’s standard packing conditions and at the Purchaser’s expense. Any specific packing request set out in the specifications will be charged separately. Packaging shall neither be returned, nor subject to a deposit.
11. DELIVERY – TRANSFER OF RISK – TRANSFER OF TITLE
Delivery and transfer of risk
Unless otherwise agreed, Goods are provided FCA at the Seller’s premises.
Delivery and transfer of risk shall take place pursuant to the Incoterms agreed by the Parties.
It is the Purchaser’s obligation to verify the visual conformity of the Goods both in quantitative and qualitative terms and to inform the Seller of any non-conformity in this respect of which it becomes aware within fifteen (15) calendar days of delivery. Failing this, any such non-conformities cannot be the subject of any claim made by the Purchaser against the Seller.
Partial deliveries
The Seller reserves the right to carry out partial deliveries of the Goods covered by the Order.
In the event of partial delivery, each batch shall be regarded as a separate sale subject to the conditions of the Agreement. The Purchaser is deemed to have accepted the transfer of risk of the Goods delivered as stipulated in the Agreement on a pro-rata basis for the actual delivered quantity. Payment of each batch must be made in accordance with the payment terms stipulated in the Agreement.
Transfer / Retention of title
The Seller retains title to the Goods until the effective payment in full of the principal and other charges. Failure to make any due payment may, at Seller’s option, lead to the recall of the Goods and the termination of the Agreement for Purchaser’s breach. In the event of the exercise of any such right, any down payments already made will be irrevocably retained by the Seller as indemnity, without prejudice to the ability of the Seller to obtain full compensation in respect of any prejudice suffered. Within the meaning of this clause, the submission of bills or of any security which create an obligation to pay does not constitute payment.
Consequently, the Purchaser must store the delivered Goods separately and marked as being the property of the Seller until the price has been paid in full. The Purchaser shall indemnify and hold the Seller harmless of any and all costs arising out or in connection with the enforcement of this clause (including any legal fees).
Storage
If the Purchaser does not take delivery of the Goods on the date stated in the Agreement for reasons not attributable to the Seller:
– Free storage period shall be limited to one (1) month
– The Purchaser shall nonetheless be obliged to make payment according to the schedule originally set out, without prejudice to the application of storage expenses.
Any storage exceeding above thirty (30) days’ free storage will be at Purchaser’s account and Goods could be placed in a warehouse at Purchaser’s risk and expenses.
12. INTELLECTUAL PROPERTY RIGHTS
Notwithstanding anything to the contrary and except where an express license is granted, each Party shall remain the exclusive owner of the Intellectual Property Rights it owns, develops or uses, whether such ownership, development or usage arises before, during or after the Agreement.
The Seller warrants to the Purchaser that the Goods do not constitute a breach of any pre-existing rights nor any other form of infringement of Intellectual Property Rights, and indemnifies it against any action or claim in this respect, provided that: (a) Seller has been informed in advance and in writing of the existence of such a claim and within a reasonable timeframe for it to be able to prepare its defense, (b) payment has been received for the Goods, and (c) the Purchaser provides the Seller with the necessary opportunity, authority, information and assistance for it to be able to take on exclusive control of the defense against such claims or legal action, including arbitration, mediation, settlements and appeals.
This obligation does not apply in respect of any claims/infringement action or any other Intellectual Property Rights resulting from the use of the specifications provided by the Purchaser or derived from the design created by the latter, or from changes or modifications to the equipment imposed by it.
Should the liability of the Seller be recognized by any jurisdiction, the Seller shall at its sole option: (1) obtain from the Purchaser the right to use the Goods under the conditions defined by the Agreement; or (2) replace it with a reasonably equivalent Good; (3) modify it to make it usable without contravening any Third Party rights and in compliance with the Agreement; or (4) recall the Goods, refund the Order Price to the Purchaser less an obsolescence discount.
Should the Goods supplied by the Seller for the Purchaser be produced in accordance with the Purchaser’s designs, samples or instructions, or be designed exclusively by the Seller, or be combined with other Goods not supplied by the Seller, the Purchaser will have to defend, guarantee and indemnify the Seller under equivalent conditions to the aforementioned obligation placed upon the Seller.
13. CONFIDENTIALITY
All non-public, confidential or proprietary information of Seller, including but not limited to specifications, designs, plans, drawings, documents, data, business operations or pricing, disclosed to Purchaser, whether orally or disclosed or accessed in written, electronic or other form, and whether or not marked or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Purchaser shall promptly return all confidential documents and other materials received from Seller. This Section does not apply to information that is: (a) in the public domain; (b) known to Purchaser at the time of disclosure; or (c) rightfully obtained by Purchaser on a non-confidential basis from a third party.
14. WARRANTY
The Seller warrants to the Purchaser that the Goods shall be (i) free from defects in design, material and workmanship, and (ii) fit for the purposes specifically described in the Quotation, for eighteen (18) months following delivery date, except for spare parts thereof for which the warranty period shall be twelve (12) months. The Purchaser shall notify Seller in writing of any claim within ten (10) working days of becoming aware of the same and shall enclose the corresponding purchase invoice. Failing that, the Purchaser implicitly waives all right of recourse regarding warranty.
The Seller’s warranty covers replacement or repair of proven defective parts or Goods at its sole option. Defective parts or Goods shall be, at the Seller’s sole option, (a) returned to its workshops; (b) returned to its distributor or authorized service center workshop; or (c) in case the Goods cannot be returned for financial or practical reasons, assessed on-site. In case of absence of Seller’s responsibility, the Purchaser will bear the costs incurred by the Seller to cover report fees for an amount determined on a case-by-case basis.
If the Seller’s responsibility is established under the warranty, the Seller’s liability is limited to replacing or repairing the defective parts at its own expense, excluding any other costs (such as, without limitation dismantling, reassembling and approach (including emptying of the tanks)).
The Seller shall reserve the right to modify all or part of its Goods to comply with its warranty obligations.
The replacement or the repair of one or more parts for whatever reason shall extend the warranty period for twelve (12) months or till the end of the warranty period whichever occurs first.
The warranties under this Section 14 shall not apply if the Goods have been: (a) subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by the Seller; (b) reconstructed, repaired, or altered by Persons other than the Seller or its authorized representative; (c) or to modifications, alterations or repairs to the product not performed by Seller or authorized in writing by Seller; or (d) used with any third-party product, hardware, or product that has not been previously approved in writing by the Seller.
All Seller’s information and recommendations are subject in all cases to the verification and acceptance of the Purchaser, whose liability in this respect cannot be excluded, whether in whole or in part and shall not provide any warranty against wear and tear or chemical action.
The warranty shall automatically end: (a) if the storage of the Goods by the Purchaser fails to comply with the Seller’s recommendations and with Industry Practices or maintenance manuals; (b) in the event of the Goods being worked on or dismantled without the express written agreement of the Seller or in the event of such work being carried out by a person not approved in writing by the Seller; (c) if original parts have been replaced by other parts non-supplied by the Seller.
Warranty claim shall not affect payment terms.
The foregoing warranties are exclusive and are given and accepted in lieu of any and all other warranties, express or implied, including without limitation, the implied warranties of merchantability and fitness for a particular purpose whether or not arising from course of dealing, course of performance, usage of trade or otherwise. No agreement varying or extending the foregoing warranties will be binding upon Seller unless in writing, signed by a duly authorized officer of Seller.
15.TERMINATION
Termination for Convenience
Either party may terminate this Agreement at any time upon a written notice of sixty (60) days to the other party. If Purchaser terminates this Agreement, Purchaser will pay to Seller: (i) the contract price of work or performed through the date of termination; (ii) costs incurred in the performance of work terminated; (iii) subcontractor’s settlement costs; and (iv) fair and reasonable profit on work terminated.
Termination for Cause
The non-breaching party may terminate this Agreement or any order if the other party materially breaches and fails to cure within 30 days of receipt of written notice. Seller may suspend Seller’s performance or terminate this Agreement or any order upon written notice if Seller believes that Seller’s performance may violate the law and/or cause a safety or health risk, or if Purchaser is insolvent, there is an adverse change in Purchaser’s creditworthiness or an attempt to obtain protection from creditors or wind down operations, Purchaser fails to pay any of Seller’s undisputed invoices for 3 days after payment due date, Purchaser violates the law in performance of this Agreement, or assigns this Agreement without Seller’s consent. Upon termination or expiry: (a) Purchaser must pay all amounts due; and (b) if requested, return or destroy all Seller’s confidential information and certify the same in writing; except for automatically generated backup copies, anonymized data or if maintained for legal purposes.
16. LIABILITY
By placing an Order, the Purchaser recognizes that the Seller has made available the information required to be able to assess the suitability of the Goods and to take the necessary precautions to limit any malfunction. The Seller assumes no obligation or responsibility in relation to the precision or lack thereof of the information communicated by the Purchaser; the Seller is under no obligation to verify the relevance or accuracy of such information.
Notwithstanding anything to the contrary in the Agreement and to the extent permitted by Law, the aggregate liability of the Seller to the Purchaser, whether in contract, tort (including negligence) or otherwise, will be limited to the Order value.
Notwithstanding anything else in the Agreement, in no event shall the Seller or any of its affiliates, subsidiaries, or representative be liable to the Purchaser or any Third Party for any loss of production, profit, revenue or income, or for any consequential, incidental, indirect, exemplary, special or punitive damages, any damages for business interruption, loss of use, or loss of data, whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not the Seller was advised of the possibility of such damages arising under the Agreement, any statute or tort.
17. FORCE MAJEURE
Neither Party shall be liable for any loss or damage suffered or incurred by the other Party arising from the first Party’s delay in performing or failure to perform its obligations hereunder to the extent that and for so long as such delay or failure results from an Event of Force Majeure. The affected Party shall notify the other Party within five (5) working days (or a longer period if the context otherwise requires) of becoming aware of the same of such Event of Force Majeure and the manner and the extent to which its obligations are likely to be prevented or delayed.
Each Party shall use all reasonable endeavors to mitigate the extent of the excusable delay or failure arising from or in connection with an Event of Force Majeure and its adverse consequences and to recommence performance of the affected obligations as soon as and to the extent reasonably practicable.
If any Event of Force Majeure occurs, the date(s) for performance of the obligation(s) affected shall be postponed for so long as is made necessary by the Event of Force Majeure provided that if any event of Force Majeure continues for a period of or exceeding ninety (90) days, either Party shall have the right to terminate this Agreement forthwith on written notice to the other Party.
In case of such termination the Purchaser shall pay the Seller in full for all work undertaken prior to the date of termination and for all commitments entered into by the Seller in respect of this Agreement (including any contracts entered into with any Third Party).
18. EXPORT COMPLIANCE
Purchaser and its affiliates will comply with all laws and regulations applicable to access and use of the Goods. Purchaser acknowledges that: (a) Seller does not provide legal advice regarding compliance with laws and regulations related to use of the Goods, and (b) the Goods has functionality that could be used in ways that do not comply with laws and regulations and Purchaser is solely responsible, and Seller has no liability, for Purchaser’s compliance with law with respect to its use of the Goods. Purchaser and its affiliates will comply with, and be solely responsible for compliance with, all laws and regulations on export, import, economic sanctions and antiboycott, regulated by the United States, any locality outside the United States where Purchaser conducts business, and as applicable, the United Kingdom, the European Union and its Member States, the United Nations (“Sanctions Laws”) related to Purchaser’s access to or use of the Goods. Purchaser represents and warrants that none of Purchaser or its directors, employees, contractors, agents, banking partners, affiliates or users (a) are individuals or entities named on or acting on behalf of entities identified on applicable Sanctions Laws restricted party lists, including but not limited to, the U.S. Specially Designated Nationals and Blocked Persons List and the OFAC Sectoral Sanctions Identifications List; (b) organized under the laws of, physically located in, or ordinarily resident jurisdictions subject to comprehensive sanctions; or (c) are owned or controlled, directly or indirectly, 50% or more in the aggregate, by one or more individuals described in (a) or (b) (collectively, “Sanctioned Persons”). Neither Purchaser nor its affiliates will (i) permit Sanctioned Persons to directly or indirectly use, access or benefit from the Goods, (ii) engage in or facilitate activities directly or indirectly related to any end-uses that are restricted by Sanctions Laws, or (iii) export, re-export or otherwise transfer the Goods for any purpose prohibited by the Sanctions Laws. Purchaser will not submit to the product any data subject to the U.S. International Traffic in Arms Regulations or other Sanctions Laws. Purchaser’s violation of this Section will be a material breach.
Each party shall comply with all applicable anti-bribery laws and regulations including but not limited to the United States Foreign Corrupt Practices Act (“FCPA”) and the United Kingdom Bribery Act of 2010. The parties represent and warrant that they are currently in compliance with anti-corruption and anti-bribery laws and will remain so and that they will not authorize, offer or make payments, directly or indirectly, to any government authority that may result in a breach of FCPA or established restrictions or prohibitions. Purchaser agrees to maintain accurate books and records to demonstrate compliance with the compliance requirements of this section. Seller, at its expense, may audit Purchaser to determine compliance with such provisions upon no less than thirty (30) days’ advance written notice, and Purchaser will provide reasonable assistance to Seller to complete such audit. Purchaser’s failure to comply with this provision will be deemed a material breach of the Agreement.
Seller will obtain the export and re-export license when Seller is the exporter of record. Purchaser must obtain at its sole cost and expense all necessary import authorizations and any subsequent export or re-export license, or other approval required for the Goods purchased, delivered, licensed or received from Seller. The parties agree that technical information or technology (i.e., export-controlled information) subject to the Sanctions Laws shall not be disclosed, transferred or exported, including to any affiliate, foreign national employee, supplier, or sub-tier supplier, regardless of location, without valid export authorization or other written government approval.
Purchaser will notify Seller immediately in writing of actual or reasonably suspected violations of this section. Seller may suspend or terminate the Agreement or any order (or part thereof) or take other actions reasonably necessary to ensure full compliance with all laws including the Sanctions Laws without Seller incurring any liability.
Notwithstanding the foregoing, in the event any government agency does not approve or substantially delays an export or re-export license thereby prohibiting or substantially delaying the export, Purchaser shall be responsible for all charges incurred by either party up until the approval and/or cancellation.
Purchaser shall not export, re-export, transfer, or otherwise dispose of the Goods directly or indirectly, except as permitted by applicable laws and regulations. Purchaser shall not do anything that would cause the Seller or its affiliates to be in breach of applicable laws and regulations. Furthermore, Purchaser shall protect, indemnify and hold harmless the Seller and its affiliates from any fines, damages, costs, losses, liabilities, penalties, and expenses incurred as a result of Purchaser’s failure to comply with this clause.
19. APPLICABLE LAW – COMPETENT COURT – ARBITRATION
The Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with French Law. The Parties agree to exclude application of the International Convention of Vienna regarding Sales of Goods as may be amended from time to time.
The Parties shall endeavor to settle by negotiation any dispute arising out of or in connection with the Agreement and all the consequences thereof. Such dispute shall be duly notified by the claiming Party to the other Party, in the form required under the Agreement, and the Parties shall endeavor to settle such dispute by negotiation within fifteen (15) days from receipt of said notice.
In case of failure to settle the dispute by negotiation within the period of time above-mentioned, the claiming Party shall notify to the other Party its intention to submit the dispute to the jurisdiction or arbitration court mentioned below.
If the Parties are both located in a Country member of the European Union:
The Parties irrevocably agree that Paris Commercial Court shall have exclusive jurisdiction to settle any dispute arising out or in connection with this Agreement.
If one of the Parties is located outside European Union:
The dispute shall then be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one (1) arbitrator appointed in accordance with the said Rules. Unless the Parties agree upon another place, the arbitration shall be held in Paris, France. Unless both Parties are located in countries where French is one of the official languages, arbitrator shall be fluent in English language and the arbitration shall be conducted in the English language.
The arbitrator shall decide according to Law and not ex aequo et bono.
The tribunal of arbitration’s award shall be in writing and shall be final and binding upon the Parties. Each Party waives, to the fullest extent permitted by Law, any right to apply to any court of Law and/or other judicial authority to determine any preliminary point of Law and/or review any question of Law and/or the merits. However, any Party may make an application to any court having jurisdiction for judgment to be entered on the award and/or for the enforcement of any award, including any award granting interlocutory relief and any order for the obtaining of potential evidence which the arbitrator direct be produced as part of the arbitration.
The Parties undertake to keep strictly confidential the contents of the arbitration proceedings, the decision and any award of the tribunal of arbitration except to the extent necessary for the enforcement of such award. No action for breach of sale, any contract resulting from this quotation or any covenant or warranty arising therefrom, shall be brought more than one (1) year after the cause of action has accrued.
20. PATENT INFRINGEMENT
Seller will defend Purchaser, its affiliates and subcontractors against any third-party suit alleging that Purchaser’s use of the product(s) (as provided by Seller) in accordance with this Agreement, directly infringes any United States, European Union, or French third-party patent or copyright, and will pay for any final judgment awarded by a court of competent jurisdiction assessed against Purchaser resulting from such suit; provided that Purchaser promptly notifies Seller when it is apprised of the claim and provides complete authority, information, and assistance (at Seller’s expense) as to the defense and disposition via counsel of Seller’s choice. Seller will not be responsible for any compromise, settlement, attorneys’ fees, expenses, damages, or costs incurred by Purchaser without Seller’s involvement and prior, written consent.
Seller has no obligation or liability for claims arising out of the following: (A) Goods made to Purchaser’s designs, drawings, or specifications; (B) use of Seller’s product(s) in any process or in any manner not supported by the applicable documentation; (C) combination or use of any of Seller’s product(s) with materials not furnished by Seller; (D) use of a version of any software provided by Seller other than its current version; (E) data Purchaser provides; (F) Purchaser’s use of the outputs of the Seller’s product(s); (G) any alteration, customization, or other modification of the Seller’s product(s) other than by Seller; or (H) damages based on a theory of liability other than infringement by the Seller’s product(s). Further, Purchaser agrees to defend, indemnify and hold the Seller Indemnities harmless against any claim of infringement resulting from those circumstances set forth in subparagraphs (A)-(H) of this Section 10(c) of this Agreement.
If a claim of infringement is made for which Seller has indemnification obligations or if Seller believes that such a claim is likely, Seller may, at its sole option and expense, (A) procure for Purchaser the right to continue using the Seller’s product(s) or obtain a license to a reasonable substitute; (B) replace or modify the Seller’s product(s) so that it is non-infringing; or (C) in the case of the Seller’s product(s), require Purchaser to return the Seller’s product(s) (and terminate Purchaser’s license to any software provided by Seller) in exchange for a credit of the purchase price or license fee, less reasonable depreciation and pro-ration of the purchase price and/or license fees for use the Seller’s Goods. Further, Seller may cease shipping Seller’s product(s) it believes may be subject to a claim of infringement without being in breach of this Agreement. If the final judgment assessed against Purchaser is based on the revenue generated from the use of the Seller’s product, as opposed to from the sale of the product(s) by Seller to Purchaser (whether alone or in combination with any article or service not furnished by Seller), then Seller’s liability under this indemnity, exclusive of defense costs, shall be limited to a reasonable royalty based on the contract price paid by Purchaser to Seller for the Seller’s product(s) that gave rise to the claim.
This Section shall be subject to Seller’s rights under Section 12 (Limitation of Liability). THIS PROVISION STATES THE PARTIES’ ENTIRE LIABILITY, SOLE RECOURSE, AND THEIR EXCLUSIVE REMEDIES WITH RESPECT TO CLAIMS OF IP INFRINGEMENT. ALL OTHER WARRANTIES AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, STATUTORY, EXPRESS, IMPLIED, OR OTHER, ARE HEREBY DISCLAIMED.
21. DATA PRIVACY
“Applicable Data Privacy Laws” means applicable data protection, privacy, breach notification, or data security laws or regulations;
“Data Controller” means a party that alone or jointly with others, determines the purposes and means of the processing of Personal Data (as that term or similar variants may otherwise by defined in Applicable Data Privacy Laws).
“Personal Data” means any information relating to an identified or identifiable natural person or as that term or similar variants may otherwise be defined in Applicable Data Privacy Laws . Personal Data includes (i) relationship data about individuals provided by one Party to the other to manage the relationship between the Parties, and (ii) personally identifiable usage data made available by Purchaser to Seller in relation to the use of the services for the purposes of providing, improving, or developing Seller’s Goods and services.
A. Each party will process the Personal Data of the other as an independent Data Controller in accordance with Applicable Data Privacy Laws. Each party represents that it has all rights and authorizations to transfer Personal Data to the other party (including providing notice).
B. To the extent required by Applicable Data Privacy Laws, each party agrees to be bound by the terms of the Standard Contractual Clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 (including the provisions in Module 1) and the UK’s International Data Transfer Addendum to the EU Commission Standard Contractual Clauses made under s119A(i) of the UK’s Data Protection Act 2018 (“Controller SCCs”) in its capacity as “data exporter” or “data importer”, as applicable, and as those terms are defined therein. The Controller SCCs will be deemed to have been signed by each party and are hereby incorporated by reference into this Agreement in their entirety as if set out in full as an annex to this Agreement. The parties acknowledge that the information required to be provided in the appendices to the Controller SCCs is set out at https://www.honeywell.com/us/en/company/data-privacy. Each party will implement appropriate technical and organizational measures to protect Personal Data against any security breaches. If there is a conflict between this Agreement and the Controller SCCs, the Controller SCCs will prevail. Where applicable law requires changes to the Controller SCCs, those changes will be deemed to have been made without further action from the parties.
C. If Seller processes Personal Data on Purchaser’s behalf under this Agreement, Seller’s Data Processing Agreement at https://www.honeywell.com/us/en/company/data-privacy apply.
22. OTHER PROVISIONS
Survival. Subject to the limitations and other provisions of this Agreement, any provision that, in order to give proper effect to its intent, should survive the expiration or termination of these Terms, shall survive such expiration or termination for the period necessary to give proper effect to its intent.
Entire Agreement. These Terms, together with the Quotation and the Order, constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any conflict between the terms of these Terms and the Order, the Order shall prevail.
No Third-Party Beneficiaries. The Agreement benefits solely the Parties to the Agreement and their respective permitted successors and assigns, and nothing in the Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
Relationship of Parties. Nothing in the Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
Waiver: The failure by the Seller to invoke any of the clauses of these Terms cannot be validly interpreted as constituting a waiver to its rights under these Terms, except when expressly agreed in writing.
Severability: If at any time any provision of these Terms shall be found by any court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable, such illegality, invalidity or unenforceability shall not affect the other provisions of these Terms which shall remain in full force and effect. Should the foregoing occur, the Parties agree to attempt to substitute for any invalid, illegal, or unenforceable provision, a valid, legal and enforceable provision which achieves, to the greatest extent possible the same effect as would have been achieved by the invalid, illegal or unenforceable provision
Mitigation of loss: Both Parties shall take all reasonable steps to mitigate any loss resulting from any breach of the Agreement by the other Party.
Language: It is under the responsibility of the Purchaser to specify the language of the documentation to be supplied otherwise it will be supplied in French and/or English.
