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GENERAL CONDITIONS OF CONTRACT

EQUIPMENT AND ASSOCIATED SERVICES

  1. RECITALS

Unless otherwise stipulated by a joint written agreement, all of our quotations, agreements and contracts are subject to these general terms and conditions based on the ones of the French association for manufacturing technologies which codify the commercial practices of the member professions.

These general terms comply with the rules of contract law, competition law and the Vienna Convention. They set out the rights and obligations of both parties and are intended to apply to all contractual relations between the “Supplier” and the “Customer”.

For the purposes of these general terms, "written" is understood to mean any document prepared by any means and, in particular, in paper or electronic format.

  1. FORMATION OF THE CONTRACT

The contract consists of the following contractual documents in order of decreasing importance:

-              special terms agreed between the parties, and/or the expressly accepted order; or the contract

-              the Supplier’s offer

-              these general terms

The contract becomes effective from the time that it is signed or when the Supplier expressly accepts the Customer’s order, and in all cases after receipt of payment of the deposit.

2.1 Modifications

Any modification of the contract requested by one of the parties is subject to written acceptance by the other party. If these modifications affect the contract’s technical data, the main clauses should be reconsidered in particular in relation to prices and scheduling.

2.2 Cancellation

The order constitutes the Customer’s irrevocable consent. It therefore cannot be cancelled, except with the Supplier’s prior express agreement. Consequently, if the Customer requests that all or part of the order be cancelled, the Supplier will have the right to demand that the contract be executed with full payment of the sums stipulated therein.

In the event of an amicable termination of the contract, the Customer will compensate the Supplier for any costs incurred and any direct or indirect consequences that result. Furthermore, deposits that have already been paid will be retained by the Supplier by way of initial compensation.

  1. COOPERATION OF THE PARTIES

The manufacturing of a piece of equipment, when it has been designed or adapted to meet the Customer’s specific requirements, can only be successfully completed with the close cooperation of the parties, at all stages of the project.

3.1 Supplier’s Obligations

The Supplier will take into account the Customer’s requests and respect them, insofar as they are feasible, and that they comply with the contract, current technical standards and best industry practice.

The Supplier will inform the Customer, as far as its technical knowledge allows, of the manufacturing constraints and possible effects that may result from the use of the equipment, in particular the conditions for its installation and the qualifications and training necessary for operators.

The Supplier is only bound to supply the equipment specified and quantified in the contract (in an obligation of compliance with the specifications) and which therefore does not include, in particular, on site fitting works (for example: civil engineering, supply of fluids, mechanical, electrical, pneumatic or telecoms connections).

If the Supplier considers that modifications are likely to improve the quality of the equipment, it reserves the right to modify its characteristics, even after acknowledgement of receipt of the order, during the design, assembly, trials and the start of industrial production on the Customer’s premises.

In the event of a delay in delivery at the Supplier’s premises that is entirely the Supplier’s responsibility, liquidated damages may be applied if a genuine loss has resulted, determined after due hearing of the parties. They shall constitute full and final satisfaction, i.e. the Supplier will not be liable for any other amounts as a consequence of whatever delay. Liquidated damages shall not exceed 0.5% per full week of delay, from the end of the second week (grace period), and shall not exceed the aggregate and maximum amount of 5% of the ex-works price related to the order in reference.

3.2 – Customer’s obligations

The Customer must provide all the necessary information, the information must be full, accurate and reliable, in particular in relation to the clear expression of the Customer's requirements, the equipment’s operating conditions and environment (site access conditions), the composition and special characteristics of the products and materials that will used with the equipment. Representative samples of production, in quantities and times stipulated in the special terms, may be necessary. The Customer will provide the Supplier, at its own cost, with all the consumable materials, fluids, energy and sufficient competent personnel necessary for these trials, which will be carried out in compliance with the appropriate health and safety measures.

The satisfaction of the Customer’s requirements will depend to a large extent on this information. The Supplier cannot be held responsible for the consequences of the omission or of an error in the information or items supplied by the Customer.

  1. STANDARDS

Equipment sold complies with current standards as per details in the quotations / contract.

In the event that stricter mandatory standards are required by the Customer, or if these result from regulations in force in the destination country, they must be submitted to the Supplier before ordering, and discussed and accepted by both parties in accordance with agreed commercial practices, before being included in the clauses of the contract.

The Supplier will not be held in any way responsible in the event that the Customer requires standards or specifications that were not subject to its prior written agreement.

  1. DELIVERY

Independently of the agreed INCOTERM®2010, delivery is considered to have been made at the Supplier’s premises and carried out by simple advice, this being constituted by the sending of the invoice, direct delivery or delivery of the equipment to a transporter.

  1. TRANSPORT AND TRANSFER OF RISK

The terms for transport and the transfer of risk are interpreted in compliance with the agreed INCOTERM®2010. If no special terms of transport have been agreed, delivery is considered to be “Free Carrier” (FCA). In all cases, the Customer must, if appropriate, accept deliveries subject to reservation and carry out any recourse against transporters within the legal periods.

In the event of delayed delivery for whatever reason, beyond the Supplier’s control, and that it has agreed to, the equipment will be stored and handled, if applicable, at the Customer’s cost and risk, the Supplier declining any subsequent responsibility in this respect, these provisions not in any way affecting the obligations concerning payment for supplies.

The Customer undertakes to subscribe to insurance policies to cover risks incurred (loss or damage to goods sold and damage that they could cause) and to supply proof on request. This insurance should include a renunciation of the right of recourse of the Customer and its insurers against the Supplier and its insurers.

  1. TRIALS, ACCEPTANCE

7.1- Trials

Acceptance trials or tests are carried out on the equipment by the Supplier, in its workshops, following its usual procedures.

Contractual acceptance trials or tests may be arranged at the Supplier’s premises or at the Customer’s site by special agreement.

7.2 – Acceptance

The equipment will be subject to an inspection with both parties present, formalising its acceptance by the Customer or their representative, and recorded with an acceptance report, with or without reservations, drawn up within a maximum period of sixty days from the date of dispatch. In the event of the absence of a joint acceptance report, acceptance will be considered to have taken place in either of the following cases:

-              The Supplier has satisfied its principal contractual obligations, even with minor reservations,

-              The Customer has taken possession and/or used or brought into service all or part of the equipment.

  1. PRICE AND SETTLEMENT

Prices are understood to be net exclusive of tax, without discount or duties (any registrations, duties, services, cost of import licences, certification by any bodies that the parties have agreed upon); they are expressed in Euros for the equipment Free Carrier, not packed Additional services and supplies that have been provided or delivered during assembly will be invoiced separately.

Payments should be made by bank transfer, to the Supplier’s bank account, in compliance with European Directive n°2000-35.

Any delay in payment will result in the application of interest at a rate equal to the most recent refinancing rate of the European Central Bank increased by ten points.

Any delay in payment will result all outstanding balances becoming immediately due. The Supplier reserves the right to suspend the delivery and/or the execution of orders in progress or to cancel them, and to claim possession of delivered products.

  1. RETENTION OF TITLE

The Supplier retains ownership of equipment sold (assembled or not) until full payment has been completed of the principal and other charges. Any delay in payment that has resulted in a formal demand for payment to which no response has been received within a period of eight clear days, will give the Supplier the right to claim ownership of the equipment.

When the Customer (as a system provider, distributor, etc.) resells equipment that it does not yet own, it must ensure that the retention of ownership clause is maintained on the original Supplier’s behalf. Receivables resulting from such reselling will automatically belong to the original Supplier in the event of delay or suspension of the reseller’s payments.

  1. INTELLECTUAL PROPERTY

Draft proposals, studies and documents of any kind provided or sent by the Supplier will remain the latter’s property in full, as will the associated industrial property rights. They must be returned on request. These are provided free of charge, if they are followed by the order to which they relate; otherwise, the Supplier is entitled to reimbursement of the costs of the specific study and of associated travel. The Supplier retains the full intellectual property rights pertaining to its draft proposals, studies and documents, which may not be communicated or executed without written authorisation. The Customer expressly undertakes not to infringe or exploit said industrial property rights, or to allow them be exploited by third parties, without the Supplier’s prior written authorization.

The price of the studies, equipment and/or services does not include the transfer of intellectual property rights and the expertise associated with them, which remain entirely the property of the Supplier.

  1. CONFIDENTIALITY

The parties reciprocally undertake a general obligation of confidentiality regarding all confidential oral or written information, whatever format it may be in (discussion reports, plans, exchanges of computerized data, activities, installations, drafts, expertise, products, etc.) exchanged in the context of the preparation and execution of the contract excepting information that is already in the public domain, or which will be by means other than the mistakes or actions of one of the parties.

  1. WARRANTIES

Any equipment manufactured by the Supplier is warranted to be free from defects imputable to bad material and poor workmanship for a period of twelve months. This warranty does not apply to embedded components and/or equipment, which have their own manufacturer’s warranty.

This warranty applies from the date on which the Customer has taken possession and/or used or brought into service all or part of the equipment, and shall not be longer than 18 months from the Supplier advice of the equipment availability at Supplier’s plant.

The warranty is limited to the repair and replacement of defective parts, excluding labour and the cost of transport and packaging, of parts acknowledged to be defective by the Supplier, without other compensation. These allegedly defective parts must be returned transport, packaging and other costs paid, in order to be assessed. If these parts are not returned, the Supplier will invoice for the replaced parts. If the assessment confirms that a part is defective, the Supplier undertakes to reimburse the transport and packaging costs.

The warranty does not cover defects which result: from transport, faulty assembly if this was not carried out by the Supplier, normal wear and tear parts, a lack of surveillance or maintenance, incorrect, excessive or unwarranted use of the equipment, the inexperience of the operator, incorrect application or non-observation of the instructions relating to the supply or operation of the equipment, the non-compliance of the products or packaging processed to the specifications defined beforehand concerning the rate, dimensional tolerances, etc. – and in a general manner from operating conditions or environments (chemical, atmospheric, electrical or other factors) that are inappropriate or not specified in writing at the time of the order.

It cannot operate if modifications or additions have been carried out on the equipment by the Customer, without the prior written agreement of the Supplier. It cannot result in any compensation on the basis of damages. The warranty is void if the equipment was set up, or if maintenance or repair work was carried out by anyone other than the Supplier, its employee, or some other person appointed by the Supplier in compliance with the Supplier’s instructions. In the event of delayed payment or total or partial non-payment of the price of the equipment, the Supplier may suspend the warranty performance. The Customer may not claim any form of compensation as a result of the application of the warranty such as immaterial or indirect damages or losses resulting from the interruption of operations.

In order to benefit from the contractual warranty, the Customer must advise the Supplier, immediately and in writing, of the defects attributed to the equipment and provide appropriate justifications. The Customer must allow the Supplier every opportunity to observe these defects and to remedy them. Furthermore, the Customer must refrain from carrying out or having a third party carry out repairs that it considers necessary, unless this is expressly agreed with the Supplier.

This clause 12 sets forth the exclusive remedies for all claims based on failure of or defect in the equipment, whether the failure or defect arises before or during the warranty period and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise.  The foregoing warranties are exclusive and are in lieu of all other warranties and guarantees whether written, oral, implied or statutory.  No implied statutory warranty of merchantability or fitness for a particular purpose shall apply.

  1. LIMITATION OF LIABILITY

The Supplier shall be liable only for damages directly caused by Supplier’s own negligence

Supplier shall not be liable for loss of profit, loss of use, loss of production, loss of or damage to raw materials or final products or any other indirect, special, consequential or incidental damages whether claimed in contract, tort (including negligence) under statute or otherwise.

Notwithstanding anything to the contrary in this contract or in the related orders, the total liability of the Supplier, on all claims of any kind, whether in contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise, arising out of the performance or breach of the contract or use of any part of the equipment, shall not exceed the 10% of the price related to the order in reference.  All liabilities of the Supplier shall terminate upon expiration of the warranty period related to the order in reference.

  1. FORCE MAJEURE

Both parties have the right to suspend the execution of their contractual obligations, insofar as their execution is prevented or made unreasonably onerous as the result of a case of force majeure. The Supplier is automatically released of all commitments if events occur that are beyond its control, such as fire, flooding, interruption or delay in the supply of energy, raw materials or transport, labour disputes, or failures or delays in deliveries by sub-contractors caused by such circumstances.

  1. ARBITRATION AND APPLICABLE LAW

Any disputes arising from the contract or relating to the contract, will be irrevocably settled following the Arbitration Rules of the International Chamber of Commerce by one or several referees appointed in accordance with these rules. The arbitration proceedings shall take place in Paris. The language of the arbitration and all related documentation shall be the English language unless the parties agree otherwise in writing.

This contract and the other documents comprising the agreement between the Supplier and the Customer shall be governed by the law of France.

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