TERMS AND CONDITIONS

 

I. GENERAL

 

The following Terms and Conditions ("Terms") are applicable to all sales made by Optel Thevon, ("Seller"), a French corporation with offices located at 6, Rue Emile Landrin 75020 Paris- FRANCE, and the acceptance of any order is expressly conditioned upon Buyer's consent to these Terms. No interlineations, deletions, modifications or amendments to these Terms shall be binding on unless agreed to and accepted in writing by Seller. All sales are subject to written confirmation by Seller. Receipt by Buyer of Seller's acknowledgment of an order without prompt written objection thereto shall constitute acceptance by Buyer of these Terms. Buyer must respond to Seller's notice of acknowledgment within five (5) days of receipt of such acknowledgment or Buyer will waive its right to cancel the order.

 

II. PRODUCT PRICE QUOTATIONS

 

The quotations or tenders are noncommittal in nature. No contract shall arise until a written acknowledgment from Seller accepting the Buyer's order, is sent by Seller to the Buyer. Because no contract is formed until Seller acknowledges Buyer's order, these Terms shall supersede any and all terms of Buyer. Seller will be entitled to adjust agreed prices on the basis of the average change in the cost price of the goods or services to be delivered and/or activities to be performed by the Seller. The adjustment of agreed prices and rates will apply as of the beginning of the first month after the Buyer has been notified in writing of the adjustment. No modifications or changes to Buyer’s order can be made more than eight (8) days after Seller’s receipt of Buyer’s initial order.

 

III. DELIVERY

 

Unless otherwise specified by the parties in writing, the goods are to be delivered “ex works”, at Seller's place of business. The method and agency of transportation and routing will be designated by the Seller. In the event the Buyer requests alternative shipment or routing, extra packing, shipping and transportation charges thereby resulting will for the Buyer’s account. Seller is not responsible for any damage in shipment.

 

IV. DELAYS IN DELIVERY

 

Where a specific shipping date is not designated in a writing signed by the Seller, the Seller shall not be responsible for any delays in filling those orders, nor shall he be liable for any loss or damages resulting from such delays. If a specific shipping date is specified in the order or later agreed to by the Seller, then the Seller shall not be liable for any delays in filling this order caused by delays resulting from any and all conditions beyond the control of Seller, including but not limited to, (a) accidents to or malfunctions of Seller’s or Seller’s subcontractors’ or suppliers’ machinery; (b) differences with employees, strikes, or labor shortage; (c) fire, floods, hurricanes or other natural disaster; (d) supplier or subcontractor delays, including any quantity or quality defects; (e) delays caused by an instrumentality of the United States Government or any government; (f) delays in the transportation; (g) restriction imposed by any governmental regulation, whether valid or invalid; or other cause beyond the control of the Seller, or any condition without the sole fault or negligence of the Seller.

 

Under no circumstances shall Buyer or Buyer's customer be entitled to any damages for Seller's failure to ship on time, and Buyer agrees to indemnify, defend and hold Seller harmless against any costs and expenses related to any claims for lost profits or other consequential damages based on Seller's failure to deliver timely.

 

V. PAYMENT

 

Unless otherwise agreed to by the parties, payment shall be made by Buyer to Seller in advance or by letter of credit. In the event payment is not received when due, interest shall be due at the rate of one and one half percent (1.1/2%) on the unpaid portion of the invoice sum for each period of thirty (30) days or part thereof from the due date. Buyer shall pay all of Seller's costs of collection of any amounts past due, including, but not limited to attorneys' fees, court costs, witness fees, travel and lodging, etc. Seller has the right to refuse to deliver goods or services if Buyer is past due on any of its debts to Seller. Furthermore, Seller shall have the right to retake all goods immediately unless other written arrangements have been made concerning payment only if Buyer is past due. Buyer agrees to make all goods available, shipping ready, for Seller, within five (5) days of receiving notice from Seller of its intention to retake the goods. Seller will be entitled to apply payments made by Buyer first to pay those claims it deems appropriate, including interest, late charges, costs of collection, etc. Buyer will not be entitled to suspend its payment obligations to Seller and/or to offset them with any obligations of Seller to Buyer. Buyer will not be entitled to dissolve the contract with Seller if Buyer is in default. If Buyer does not fulfill its payment obligations to Seller completely or within the applicable payment period, Seller will be entitled to suspend its obligations to Buyer completely and/or not to perform them.

 

VI. SECURITY INTEREST

 

In order to protect and secure payment of all debts due and owing from Buyer and until Seller has been paid in full, Buyer hereby grants to Seller a security interest in the Products, and all proceeds and all accounts receivables resulting from the sale of the Products. In connection therewith, Buyer hereby authorizes Seller to take all necessary steps to file such financing statements and exhibits with the proper authorities.

 

Until the Buyer has paid for the Products in full, Buyer shall not pledge, mortgage, encumber, or create or suffer to exist a security interest in the Products in favor of any person other than Seller unless written approval of such other security interest is given by Seller. Additionally, Buyer agrees to keep the Products insured to their full value until payment is received by Seller. In the event Buyer sells the goods to a third party before payment in full is received by Seller, Buyer agrees to secure its security interest in the goods at the time of sale to its customer in order to protect Seller’s interests to the greatest extent possible.

 VII. INSPECTION; RETURNS

Unless Seller receives a written complaint with full particulars from Buyer regarding any defective goods or services or other complaints within five (5) business days from the date the goods or services are delivered, the goods shall be deemed to have been delivered in good condition and that the delivery is accepted. Acceptance of the returned goods does not imply acknowledgment by the Seller of the reason for the return. Goods returned by the Buyer to the Seller will remain at the Buyer's risk and the Buyer will owe the agreed amounts until the Seller has credited the Buyer for these goods. The goods accepted by the Buyer from the Seller, which the Buyer has put fully or partly into use, treated, processed or delivered to others will be considered to conform to the contract.

 

VIII. LIMITED WARRANTY OF GOODS; DAMAGES

 

Subject to the conditions herein, Seller warrants the substantial conformance to its specifications of the materials and products (the “Products”) sold by Seller, to be free from fabrication defects for a period of one (1) year from the date of invoice of the Product(s) by the Seller, excepting any wearable parts (the “Limited Warranty”).   This Limited Warranty is valid only when Product(s), paid for in full, are used under normal conditions in accordance with Seller’s applicable instructions and documentation.

 

The Products should only be used for prototype testing and measurement purposes on Buyer’s internal test vehicles and vehicle simulators, and, for avoidance of doubt, should not be installed on any vehicle that is not a Buyer internal test vehicle or vehicle simulator. Seller shall not be liable for, and the Limited Warranty shall not cover, any Product (x) used for a purpose other than prototype testing or measurement, (y) used in connection with, or installed in or on, a vehicle that is not a Buyer internal test vehicle or vehicle simulator or (z) used in a manner that does not conform with Seller’s instructions and documentation.

 

Any third party products, including but not limited to machinery, hardware and software, included with or purchased for use with the Seller’s Product(s) are not covered by this Seller’s Limited Warranty and Seller makes no representations or warranties on behalf of such third parties. Any warranty on such goods is from the third party supplier or licensor of such other good.

 

The defective Product(s) must be returned in its original packaging. Seller reserves the right to refuse all Product(s) in non-conforming packaging.

 

All Product returns shall be made only upon advance written acceptance of such return by Seller or its authorized service technician. In all cases, the shipping costs and risk of return are at the expense the customer. Except with regard to a warranty claim as set forth herein, Seller shall not be liable to the customer for any claim related to non-conformance of the Products or the delivery of the Products and the customer may not claim indemnification from Seller for such non-conformance. All contested merchandise must be submitted to Seller’s authorized service technicians for examination, who may decide, in their sole discretion, whether the Product(s) should be replaced or repaired. No travel or lodging costs or expenses, or overtime labor is covered by this Limited Warranty. This Limited Warranty is limited to the replacement of the part(s) or Product(s) that is determined defective to the exclusion of any and all other charges and costs.

 

Seller reserves the right, in specific cases and in its sole discretion, to provide the customer with reimbursement or credit for the customer’s purchase price of the Product(s).

 

This Limited Warranty does not cover replacement or reparations that result from a deterioration or accidents that are based in any way on negligence, failure to monitor, failure to maintain or poor stocking, manipulation or non-conforming use of the Product(s) by the customer. This Limited Warranty is void if the Product(s) are poorly installed or if the Product(s) have been altered or modified in any way by the customer. This Limited Warranty will be voided if the Product(s) are repaired or serviced by anyone other than Seller or its authorized service technician (as such authorization is evidenced in writing).

Seller warrants any replacement Products or parts against defect in fabrication for 90 days or for the duration of the original limited warranty, whichever is shorter.

 

Wearable parts are not covered by this Limited Warranty and include, but are not limited to: adapters, optical and electrical cables, potentiometers, optical fibers, and fixed or moving cursors.

 

Seller automatically becomes the owner of any parts that are removed from the repaired Product(s). In the event of an exchange of parts, Optel Thevon shall become the owner of the returned Product.

 

The customer is responsible to ensure that the Seller Product(s) conform to any and all regulations in jurisdictions where the customer uses the Seller Product(s).

 

SELLER DISCLAIMS ANY EXPRESS WARRANTY NOT PROVIDED HEREIN AND ANY IMPLIED WARRANTY, GUARANTY OR REPRESENTATION AS TO PERFORMANCE, QUALITY AND ABSENCE OF HIDDEN DEFECTS, AND ANY REMEDY FOR BREACH OF CONTRACT, WHICH BUT FOR THIS PROVISION, MIGHT ARISE BY IMPLICATION, OPERATION OF LAW, CUSTOM OF TRADE OR COURSE OF DEALING, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  OPTEL THEVON, AND ANY ONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, DELIVERY OR SERVICE OF THIS PRODUCT (THE “SELLER PARTIES”), FURTHER DISCLAIMS ANY RESPONSIBILITY FOR LOSSES, EXPENSES, INCONVENIENCES, SPECIAL, INDIRECT, SECONDARY OR CONSEQUENTIAL, INCIDENTAL (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, AND CONTINGENT DAMAGES WHATSOEVER, INCLUDING DAMAGES ARISING FROM OWNERSHIP OR USE OF PRODUCT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF OPTEL THEVON OR THE SELLER PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

SELLER’S LIABILITY ON ANY CLAIM OF ANY KIND, INCLUDING NEGLIGENCE, SHALL IN NO CASE EXCEED THE CONTRACT PRICE PAID BY THE CUSTOMER FOR THE PRODUCT CLAIMED TO BE DEFECTIVE OR UNSUITABLE.  OPTEL THEVON SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW, WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY SELLER, OR ANY UNDERTAKING, ACTS OR OMISSIONS RELATING THERETO.

  

IX. INTELLECTUAL PROPERTY RIGHTS

 

All intellectual property rights to, ownership of and interest in all goods, trademarks, trade names, logos, distinctive marks, designs, and other materials created and/or made available by the Seller hereunder or within the framework of the relationship between Buyer and Seller are vested exclusively in the Seller. The Buyer shall not reproduce, transfer, grant, assign, license or use the goods, distinctive marks, and designs and other materials created and/or made available by the Seller and/or otherwise act as maker of and/or party entitled to such rights, except in accordance with these Terms.

 

The Buyer will not be permitted to remove or alter indications concerning intellectual property rights and concerning the confidential nature of information from goods, services, programs, works, distinctive marks, inventions, designs, models and other materials created and/or made available by the Seller and goods delivered.

 

The Buyer will not be entitled to alter, or have altered, modify, or have modified, adapted or otherwise reconfigured, the goods, services, works, distinctive marks, inventions, designs, models and other materials created and/or made available by the Seller.

 

The Buyer will indemnify the Seller against claims of third parties based on the allegation that by using materials made available by the Buyer, the Seller has infringed the intellectual property rights of third parties.

 

Seller makes no warranty concerning the appropriateness of the goods or services for the purposes for which Buyer or its customer are acquiring same. Moreover, Seller makes no warranty that the goods or services or other intellectual property of Seller does not infringe the rights of third parties and Seller, and shall be under no obligation to protect Buyer any claims made by third parties for any reason.

 

X. CANCELLATION PRIVILEGES

 

Seller may cancel any contract if Buyer is in default of the payment of any obligations pursuant to or any contract between the parties, or if in the sole judgment of Seller Buyer's financial condition and responsibility has become materially impaired. In addition, Seller shall have the right to recover damages for nonperformance, and any unpaid installments due on account of this or any other contract between the parties shall become immediately due and payable. If the Buyer - validly - cancels the contract, the Buyer will be obliged to compensate the Seller for any costs incurred by the Seller in connection with making the offer and entering into the contract and the damage and/or loss arising from the cancellation.

 

The Seller will be entitled to terminate the contract unilaterally with immediate effect, fully or in part and/or to suspend performance of its obligations under the contract with immediate effect if:

 

  1. the Buyer has failed to fulfill one or more of its obligations under this or any other contract or sales terms;
  2. Buyer has suspended payments or has sought the protection of the Bankruptcy Courts;
  3. a petition for the involuntary bankruptcy of the Buyer has been filed;
  4. the Buyer’s property on Seller’s premises has been attached in execution;
  5. a resolution for the dissolution and/or winding up of the Buyer has been adopted;
  6. the enterprise operated by the Buyer has been fully or partly transferred to a third party.

 

The Seller will never be liable with respect to the Buyer for any damages arising from termination of the contract or from the suspension of obligations under the contract for the aforementioned reasons.

 

If the contract is terminated, performance of the contract already received by the Buyer and the payment obligations of the Buyer in connection with it will remain. The amounts invoiced by the Seller for performance prior to or upon termination of the contract will be immediately due and payable after termination. Buyer agrees to pay any of Seller’s costs, damages, attorneys’ fees and other expenses associated with Seller’s termination of any contract with Buyer pursuant to the terms of this section.

 

XI. MISCELLAENOUS

 

If Seller is temporarily unable to perform this Agreement because of Force Majeure, it will be entitled to suspend performance of the contract for as long as the Force Majeure lasts. If Seller is permanently unable to perform any of its obligations to Buyer because of Force Majeure, it will be entitled to cancel the specific order with immediate defect and without any damages whatsoever. Buyer agrees to indemnify, defend and hold Seller harmless against any claims made by third parties based on whole or in part on Seller’s inability to perform because of Force Majeure.

 

These Terms and all transactions between Seller and Buyer are governed by the laws of France.

 

Any controversy or claim between Seller and Buyer or any controversy or claim otherwise arising out of or relating to the Terms and any agreement subject to these Terms, shall be settled in the courts of Paris, France. Both Buyer and Seller agree to the sole and exclusive jurisdiction of the Courts of Paris, France.

 

These Terms constitute the sole terms and conditions of the contract between the Buyer and Seller. No other terms, conditions, or understanding, whether oral or written, shall be binding upon the Seller, unless hereafter made in writing and signed by Seller's authorized representative and, in the case of printed matter, also initialed by such representative next to such printed term or condition.

 

Should any provision of this Agreement be judicially declared unenforceable, that provision shall be deemed stricken and the remainder shall continue in full force and effect insofar as it remains a workable instrument for effectuating the intents and purposes of the parties. The Parties further agree to re‑negotiate any so severed provision to bring the same within applicable legal requirements to the greatest extent possible.