RUNIPSYS Europe S.A.S. – share capital €1,080,030.

GENERAL TERMS AND CONDITIONS OF SALE

 

I. GENERAL

The sale agreement is subject to these General Terms and Conditions of Sale.

Any amendment to these general terms and conditions must be expressly accepted in writing by RUNIPSYS (the “Seller”).

These General Terms and Conditions of Sale are deemed accepted by the purchaser (the ”Purchaser”) by its, his or her acceptance of the order and shall prevail over any other purchase terms and conditions.

 

II. ORDERS

Orders may only be made by way of a purchase order or quotation, in both cases accepted by the Seller. The supply shall exactly and solely be in respect of the equipment specified in the quotation or the order as accepted by the Seller.

The Seller reserves the right to amend in any way the lay-out, shape, dimensions or materials making up its equipment, machinery and parts thereof for which drawings and descriptions feature on the Seller’s printed materials for information only.

All prices and information featuring in catalogues, prospectuses and tariff sheets are for indicative purposes only and the definitive price can only result from the specific terms applicable to each order.

After each order, the Seller shall supply, if applicable, an assembly drawing with reference points and parts list and, possibly, an installation drawing for each equipment, but no implementation drawing shall be supplied. These drawings and list shall be supplied for information purposes only and in one original which may not be reproduced.

 

III. DESIGNS, DRAFTS AND DESCRIPTIVE DOCUMENTS

The Seller shall retain full ownership and intellectual property in all designs and documents of any nature supplied or sent by it. Such designs and documents shall be restored to the Seller on demand.

The cost of these designs and documents is included in the cost of the equipment order.

If the order is cancelled or not implemented for whatever reason, the Seller shall invoice a fixed fee equal to 20% of the order value in respect of such designs and documents.

 

IV. INTELLECTUAL PROPERTY

All intellectual property and know-how incorporated in designs, drafts, plans, drawings and all products and supplies delivered and services rendered shall remain the exclusive property of the Seller.

Any transfer of intellectual property rights or know-how can only occur by way of a written signed contract with the Seller.

The Purchaser undertakes not to (or attempt to) reproduce, copy, transfer or otherwise dispose of, broadcast, adapt, modify, integrate or use (for a purpose or in a manner not intended by this agreement) any of the intellectual property rights of the Seller, in any way whatsoever and on any support or using any process whatsoever (including paper, digital, magnetic, optical, videographic or otherwise).

 

V. CONFIDENTIALITY

The Purchaser undertakes to comply with a general obligation of confidentiality with regard to any oral or written information of any sort whatsoever and in any form whatsoever (including reports of discussions, drawings, exchanges of electronic data, activities, installations, projects, know-how, products, etc) exchanged during the preparation and performance of the contract, with the exception of information which is in the public domain.

Consequently, the Purchaser undertakes :

    • to maintain all confidential information strictly confidential and, in particular, to abstain from disclosing or transmitting, directly or indirectly and in any manner whatsoever, all or part of the confidential information to whosoever without the prior written consent of the Seller,
    • not to use all or part of the confidential information for purposes or for activities other than the performance of the contract,
    • not to duplicate or copy all or part of the confidential information.

The Purchaser undertakes to take all necessary measures to ensure the fulfilment of this obligation of confidentiality throughout and even after the duration of the contract, and vouches for the compliance with this obligation by all the Purchaser’s employees and all third parties to whom the Purchaser is obliged, in the context of the use of the equipment sold hereunder, to transmit all or part of the accompanying documents or the sold equipment.

VI. DELIVERY

Terms of delivery : Delivery is effected :

    • by notice of availability in the factories or warehouses of the Seller,
    • or, if provided in the contract, at the point of delivery to a third party or carrier designated by the Purchaser,
    • or, if provided in the contract, by delivery to the factories or warehouses of the Purchaser.

Any Seller agreement to pay for the costs of delivery shall not be deemed to be an agreement by the Seller to accept liability for transportation, which liability shall remain with the Purchaser.

Risks are transferred to the Purchaser at the point of delivery ex-works the Seller’s factories or warehouses, without prejudice to the Seller’s right to invoke the reservation of title clause or to use its right of retention.

Delivery deadlines and delays : Delivery deadlines will be respected wherever possible. They could be affected by circumstances beyond the control of the Seller.

No delay whatever the circumstances may justify a cancellation of an order.

The Seller shall not, as of right, be liable for any late delivery where any of the following occur :

    • delays occurring in the study phases,
    • the Purchaser is in breach of the payment terms under the contract,
    • the information to be supplied by the Purchaser has not been provided in good time,
    • any event of force majeure, or events or circumstances such as lock-outs, strikes, epidemics, war, acts of violence, expropriation, fire, flood, tooling accidents, high levels of scrapping of key parts in the course of manufacture, transport delays or stoppages or any other cause of total or partial work stoppages for the Seller or its suppliers.

Subject to the above, delays can only be taken into account after the study validation and during the manufacturing or delivery phases for the sold equipment.

If the express specific terms and conditions provide for penalties for delay beyond any contractual deadline stipulated at the time of the order, these could not in any event exceed 5% of the of the workshop or warehouse value of the equipment yet to be delivered.

In the absence of any specific agreement, there may be applied, for each completed week of delay with effect from the third week, a penalty of 0.5% of the workshop or warehouse value of the equipment yet to be delivered (up to a maximum of 5%).

In any event, penalties may only be due if the delay occurring after study validation can be demonstrated by the Purchaser to have caused it actual loss.

The Seller shall inform the Purchaser in a timely manner of the occurrence of any of the circumstances or events listed above.

No payments for supplies may be deferred or amended by reason of any penalties.

Receipt : the Purchaser shall be responsible for verifying the condition of the equipment upon receipt, raising any necessary reservations and so informing the Seller.

Acceptance or the absence of reservations shall be deemed acknowledgment of the absence of any patent defects.

Where delivery is effected to the Purchaser’s factory or warehouses, the Purchaser shall be responsible for verifying or having verified that all transport conditions have been complied with and that the delivered products have suffered no damage.

 

 

VII. PRODUCT DEFECTS – RETURN OF SOLD EQUIPMENT

Product defects : If the equipment is demonstrated to have apparent or latent defects for whatever reason, the Seller’s liability shall in all cases be limited to the repair or replacement of the defective parts, as chosen by the Seller and to the exclusion of all other liability or penalty. The Seller shall only be so liable if the relevant defect has been notified to it within 6 months of reception of the equipment in question.

Unless agreed in advance in writing, the Purchaser shall make no withholding of any amounts due under the Seller invoices, whether for any repairs to such parts by the Purchaser or otherwise.

Return of equipment : In the event of any return of sold material (equipment, spare parts etc), the material must be returned in good condition, in its original packaging, failing which, in packaging which perfectly safeguards the integrity of the material during transit. The Purchaser must ensure that the material is free from all humidity during transport. Any return of material is made at the Purchaser’s cost and under its responsibility.

 

VIII. PATENTS

The Purchaser shall ensure that the systems, parts and physical objects of any order, transmitted plan or any other document is not protected by a patent belonging to a third party.

In the event that such a protection exists, the Purchaser shall so inform the Seller, specifying the third party rights in the use of the patent in question. The Purchaser shall indemnify and hold the Seller harmless against all and any claim made against the Seller in respect of such rights.

 

IX. PAYMENT TERMS

Due dates : the payment conditions are set out in the specific conditions, failing which payment is to be made in euros to the Seller at its domicile, in full and with no deduction or reserve as follows:

    • 30% upon the order being given, by cheque or wire transfer, no order being approved for manufacture without such payment being received,
    • 70% no later than 45 days end of the month

In specific cases, the Seller may agree in the specific conditions, payment may be made by wire transfer on 30 days, end of the month on the 10th of the following month.

Late payment : late payment beyond the due date shall automatically give rise to interest being due to the Seller on the sums due at the rate set by the European Central Bank for its most recent refinancing operations plus 10 percentage points, the application of such interest being without prejudice to the Purchaser’s obligation to make payment on the due date.

The due dates for payment shall in no case be extended, including in the event of dispute.

No set-off of whatsoever nature shall be permitted.

Late payment shall entitle the Seller to suspend any deliveries, production and services for the Purchaser, until complete payment of all due amounts.

The Purchaser, being responsible for the situation, shall also be responsible for any loss arising from such a situation and agrees that it shall make no claim whatsoever for damages against the Seller.

Minimum Invoicing : The Seller shall be entitled to apply set invoiced minimal amounts to be revalued each year as a function of economic circumstances.

Invoice acceleration : all amounts shall become immediately due and payable regardless of the hitherto agreed payment terms upon the occurrence of one of the following: sale or transfer or pledge or contribution of the business and assets (or substantial part thereof) of the Purchaser; or non-payment of any amount due or non -acceptance of any bill by the due date in each case.

Costs in the event of return of goods : Goods supplied may not be returned or exchanged without the prior express consent of the Seller. In all cases, except where the liability of the Seller is demonstrated, a sum equal to 30% of the contract value shall be retained by the Seller, as agreed reimbursement of expenses incurred.

X. RETENTION OF TITLE

    1. a) The Manufacturer shall retain full title to the delivered materials covered by the contract until the effective payment in full of the price for such materials.

Payment shall have occurred upon the definitive receipt of the purchase price, it being understood that the handing over of a bank draft, cheque or any other debt instrument shall not constitute payment.

It is further understood that the purchase price shall include principal, interest and ancillary costs.

    1. b) It follows that the Seller expressly reserves the right to take back the corresponding delivered equipment in the event of a Purchaser default in respect of all or part of the purchase price.

Where equipment has been retrieved by the Seller, any advance payments made by the Purchaser shall be kept by the Seller in consideration of the use by the Purchaser of the equipment prior to retrieval.

The return of the goods shall occur at the risk and expense of the Purchaser. The Purchaser shall also bear the Seller’s costs of recovery (including litigation services, lawyer’s fees and court costs).

    1. c) In any event, where the returned goods are not strictly in the same condition as they were at the point of delivery, the Seller shall issue an invoice for any wear or damage and the costs of the Seller in the taking back of the goods.
    1. d) For so long as the property in and to the goods has not been transferred to the Purchaser, the Purchaser shall not be entitled and undertakes not to pledge or grant any third party any rights of whatsoever nature over the same, subject only to paragraph g) below.
    1. e) The Purchaser undertakes to store the goods subject to this title reservation in such manner as to avoid their confusion with other goods and that they may be easily recognised as being owned by the Seller. The Purchaser expressly acknowledges that the goods have not been integrated into a particular unit, lot or whole and that they remain identifiable and autonomous equipment.
    1. f) Risk in the goods is transferred to the Purchaser upon delivery. The Purchaser undertakes to insure these goods against all risks which could affect them after delivery.
    1. g) The goods sold hereunder subject reservation of title may be sold on and delivered by the Purchaser to a third party in the ordinary course of its business, on condition that (i) the third party purchasers are informed of the existence of this title reservation clause X and its potential enforcement by the Seller and (ii) that the Purchaser applies the amounts received from such onsale to the payment of any sums due to the Seller.

XI. TRANSPORT, CUSTOMS, INSURANCE, ETC

All operations relating to transport, insurance, customs, handling and on site installation shall be the responsibility of the Purchaser and shall be at the Purchaser’s risk and expense. The Purchaser shall be responsible for checking shipments on their arrival and for initiating proceedings against carriers, where necessary, even for carriage-paid shipments.

When shipped by the Seller, goods shall be shipped at the lowest transport price, unless otherwise requested by the Purchaser, and, in all cases, under the Purchaser’s entire responsibility.

XII. WARRANTIES

Warranted defects. – The Seller undertakes to remedy any malfunction arising from a a defect in the design, the materials or the assembly (including the installation if that task has been given to the Seller) subject to and as limited by the following.

The Seller shall not be liable where the defect arises from the materials provided by the Purchaser or from a design made by the Purchaser.

The Seller’s warranty shall also not apply in the cases of force majeure or accidents beyond the Seller’s control, or replacements or repairs resulting from ordinary wear and tear (such as with abrasive materials), or of damage, deterioration or accidents caused by the Purchaser’s negligence or failure to supervise or maintain or improper use of the equipment.

Duration and start date for the Seller’s warranty – Unless otherwise specified in the specific conditions, the Seller’s warranty hereunder shall only apply to defects which have appeared during the period of 1 year (the warranty period).

The warranty period commences on the date of invoicing for the relevant equipment by the Seller.

Parts which are replaced or redone are warranted on the same terms and conditions as the original equipment and for a new period equal to the one defined in the above paragraphs regarding the duration of the warranty.

The equipment or any part which is not replaced continue under the original warranty only which may be extended by any period of stoppage during the replacement process.

Purchaser obligations. – In order to benefit from the Seller’s warranty, the Purchaser must notify the Seller, without delay and by registered letter with return receipt requested, of the defects the Purchaser attributes to the equipment and shall at the same time provide all evidence of the existence of the same.

The Purchaser must give the Seller all information and access to enable the Seller to proceed to identifying the defects and remedy the same; the Purchaser shall not, without the Seller’s consent, seek to repair the equipment itself or to have it repaired by a third party.

In the event the Purchaser seeks, without the Seller’s express consent, to repair the equipment itself or to have it repaired by a third party, the Seller’s warranty shall cease immediately.

Warranty exercise. – Once notified the Seller shall have the responsibility of remedying the defect at its cost, the Seller having the right to modify features of the equipment where necessary to comply with its obligations.

In principle, the remedying works under the Seller’s warranty shall be carried out at the Seller’s workshops after the Purchaser has sent to the Seller the equipment or defective parts for repair or replacement.

However, where the repair must be carried out at the Purchaser’s premises in view of the nature of the equipment or material, the Seller shall bear the labour cost for such repair and the Purchaser shall make the dismantled equipment available for such work.

The Purchaser shall bear the cost and responsibility for the reassembly.

The Purchaser shall bear the transport cost for the despatch of the defective equipment or part and the return of the repaired or replaced item, including if the repair is to occur in the Purchaser’s premises. The replaced parts under the Seller’s warranty shall be handed or made available to the Seller and shall be the Seller’s property.

Damages. – The Seller’s liability is strictly limited to the repair or replacement obligations hereunder and it is expressly agreed that the Seller shall not be liable for any indemnity or compensation to the Purchaser for any loss or damage suffered, including, in particular accidents affecting individuals, damage to other goods or loss of profit or other pecuniary loss.

In all cases, the Seller’s liability shall not exceed the purchase price of the ordered equipment.

Specific case of warranties relating to industrial results. – Where a specific industrial or economic result is warranted, the parties shall set forth the consequences of such warranty in a specific agreement.

In the event such results are not attained, the Seller’s liability shall not exceed a sum equal to 5% of the ex-tax workshop or warehouse value of the equipment or the relevant part of such equipment.

Works to order. – Where work is carried out by the Seller to order, the Seller solely warrants that the work shall conform to the dimensions, tolerances and specifications given to the Seller and accepted by the Purchaser.

In the case of works carried out by the Seller, using non-defective raw materials or parts supplied by the Purchaser, which are not conforming causing the equipment to not be fit for purpose, the Seller shall, at the Purchaser’s option, either issue a credit note corresponding to the price for the work on the scrapped parts or redo the work using the necessary materials or parts made available by the Purchaser.

 

XIII. DISPUTES

In the event of any claim or dispute regarding any contract entered into with the Seller which is not settled amicably between the parties, the Commercial Court of Chambéry, where the Seller is domiciled, shall have exclusive jurisdiction in respect of such dispute, regardless of the conditions of sale or the payment method and even in the case of a claim under the Seller’s warranty or where there are several defendants.

Delivery being carriage-paid, any bills of exchange or acceptances by the Seller shall not effect any novation or exception to this jurisdiction clause.

The applicable law is French Law.

Any contrary stipulation to the clauses in these conditions which feature in any order of the Purchaser shall be deemed null and void, unless expressly agreed to by the Seller.

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