General Terms and Conditions of sales/ services, study and counsel
Except as otherwise agreed in writing between CISTEME and the customer (hereinafter the Customer) in the purchase Order, by ordering Equipment, Software, studyand/or Services (as defined in article 1 “Definition” hereunder), the Customer hereby agrees to be bound by the present general terms and conditions (« GT&Cs»). CISTEME and the Customer are to be designated individually as a “Party” or collectively as the “Parties”
ARTICLE 1 – DEFINITIONS
For purposes of these GT&Cs, the following terms have the meanings set forth hereafter: “Equipment” shall mean the product or equipment defined in the Order, to be supplied by CISTEME to the Customer; “Order” shall mean the contractual documents composed of the followings:
- The purchase order placed by the Customer with CISTEME which shall identify and specify the Equipment, Services and/or Software to be provided and/or licensed by CISTEME to the Customer and shall contain all other relevant instructions and information, including but not only the desired date of delivery of the Equipmentand/or completion of Services and/or Software license grant and the financial consideration.
- The technical and commercial proposal made by CISTEME;
- The functional requirements issued by the Customer;
- The possible technical or administrative requirements that define the procedures to be followed by the Parties for the implementation of the Order
- The GT&Cs;
In case of discrepancy or contradiction among some of these contractual documents, the order of precedence is that referred to in the list above.
“PoC “: shall mean the functional model (usually known as Proof Of Concept) to validate the breaking down of the technological barriers held by the functional requirements;
“Prior Information” shall mean any information, document, know-how, patent or patent application, Software, domain, utility model, name, design, model, any application thereof, copyright and related rights, trade secret and Confidential Information, whichever the nature is and on whichever support, owned by one Party prior to the signature of the Order or that a Party may dispose of prior to the signature of the Order and necessary to implement the Order;
“Reports”: shall mean the reports as defined in the Order such as reports, technical document, studies, excluding namely the Software, Equipment and PoC, that are to be designed and written by CISTEME and that he has tobe delivered to the Customer under the Order
“Services” shall mean the services such as the development, study and/or counsel defined in the Order that CISTEME shall perform under the Order;
“Software” shall mean the software program, i.e., sequences of instructions to carry out a process in, or convertible into, a form executable by a computer and fixed in any tangible medium of expression defined in the functional requirements of the Order;
ARTICLE 2 – ORDER
2.1. All CISTEME’s offers are made in writing. CISTEME shall not be held liable by any verbal offer.
2.2. Unless otherwise agreed in writing by the Parties, offers shall be valid for a thirty (90) day period as from the day it was communicated to the Customer; after that date CISTEME shall be entitled to change the conditions or to refuse the Order.
2.3. CISTEME shall not be bound towards the Customer before express acceptance by CISTEME of the Order duly signed by the Customer.
ARTICLE 3 – ORDER CHANGES
Any change in the Order shall require a prior written amendment of the Order duly signed by the Parties that directly refers the Order.
ARTICLE 4 – IMPLEMENTATION TIMEFRAME
4.1. Estimated deadlines of delivery of Equipment, PoC, Reports, Software or completion of Services shall be defined in the Order.
4.2. Estimated deadlines for delivery of Equipments, PoC, Reports and Software and completion of Services are subject to compliance by the Customer with its obligations, such as but not limited to payment of the amount defined in the Order supply of Prior Information and/or any other information, product, materials as defined in the Order and necessary to implement the Order.
4.3. Deadlines shall be extended without fault for CISTEME in case of delay not exclusively attributable to CISTEME or for Force Majeure as defined in Article 13 (“Force Majeure”).
4.4. Delay attributable to CISTEME shall not base termination of the Order.
ARTICLE 5 –Price – Payments
5.1. Price – Unless otherwise agreed by the Parties in the Order, the price for the completion of Services and/or delivery of Reports, Equipment, PoC or Software shall be deemed as expressed in euros excluding VAT (net price). Prices are firm and non-reviewable and are fixed for Reports, Equipment, PoC or Software to be delivered to Customer site.
5.2. Payment – The payment schedule is one of the schedules defined hereunder in 5.3, 5.4 or 5.5:
5.3.If the price of the Order excluding VAT is less than or equal to ten thousand (10 000€) euros, it shall be all paid upon delivery of the Reports, Equipment, PoC and/or Software ordered under the Order.
5.4. If the price of the Order excluding VAT is between ten thousand (10 000€) and twenty-five thousand (25 000€) euros, it shall be paid by the Customer in compliance with the following schedule:
- Twenty percent (20%) of the price of the Order excluding VAT as a down payment upon the issuing of the Order;
- Full payment of the remaining eighty percent (80%) of the price as a balance payment of the Order upon delivery of the Reports, Equipment, PoC and/or Software ordered under the Order.
5.5. If the price of the Order excluding VAT is over twenty five thousand (25 000€) euros or when the implementation duration of the Order is at least six (6) months, the price of the Order shall be paid in compliance with the following schedule:
- Thirty percent (30%) of the price of the Order as down payment upon issuing of the Order;
- Thirty percent (30%) of the price of the Order as down payment upon the midway approval step as defined in the Order;
- Full payment of the remaining forty percent (40%) of the price of the Order as a balance payment of the Order upon delivery of the Reports, Equipment, PoC and/or Software ordered under the Order.
5.6. The requests for down and balance payments transmitted by CISTEME to the Customer are due by transfer not later than thirty (30) days following the invoicing date.
5.7. Payments shall be made without deduction of any kind and no compensation of any nature shall be allowed. Complain or plaint from the Customer shall not postpone or suspend payments.
5.8. Late payment interests. If payment has not been made in due date, CISTEME shall be entitled to notify the Customer that the amount due and payable shall be increased by three percent (3 %) above the EURIBOR rate, accruing daily after expiry of the payment term according to stipulation above and until complete payment is effective, without prejudice to damages to which CISTEME shall be entitled.
ARTICLE 6 – CUSTOMER’S OBLIGATIONS
6.1. The Customer shall provide to CISTEME in due contractual time all Prior Information and all prerequisite material or data defined in the Order necessary to implement the Order. CISTEME shall not be held liable for default or damages totally or partially caused by a Prior Information or a material or data provided by the Customer.
6.2. When necessary for installation of the Equipment, PoC and/or Software or completion of Services on Customer’s site, the Customer undertakes to give access to the site, to provide CISTEME with all permissions and regulations and to inform CISTEME of all obligations arising to CISTEME from the application of the regulations concerning the intervention of third parties on site. The Customer shall provide, free of charge for CISTEME, all facilities as services (such as offices, water, electricity, telephone, and web) and all equipment and tools (other than those supplied by CISTEME under the Order) needed for the performance of the Services performed on site.
6.3The Customer undertakes to pay the price following the conditions defined in the Order.
ARTICLE 7 – DELIVERY AND RECEIPT
7.1. Delivery. CISTEME shall notify the Customer with the delivery of the Equipment, Report, POC and/or Software CPT Customer site (Incoterms 2010). The Customer shall acknowledge receipt within 24h. The Customer shall be invited to attend the delivery operations at the end of which a delivery report shall be issued and signed by CISTEME and the Customer. In case of absence of the Customer or of a third party authorized to represent the Customer at the delivery, the delivery report shall be deemed accepted by the Customer. In case the Customer does not take delivery of the Equipment, Reports, PoC and/or Software at the agreed date, the price of the concerned Report, Equipment, PoC and/or Software shall be paid according to the Order, without prejudice to additional costs that it may incur that CISTEME shall be entitled to claim. The Customer shall indemnify and hold CISTEME harmless for all damages in relation to the transportation of the Reports, Equipment, PoC and/or Software.
7.2. Delivery of Services. At the end of completion of Services, the Parties shall agree and sign a report of complete and conform completion of Services.
7.3 CISTEME shall notify the Customer the date of approval test of the PoC and/or the Software to be operated within four (4) days following delivery. In case of justified reservation by the Customer, CISTEME undertakes to change the defaulting PoC or Software in the best delay before presentation to a new functionality approval test. Without any reservation or in case the Customer does not attend the approval test, the conformity test approval receipt shall be deemed agreed by both Parties.
ARTICLE 8 – TRANSFER OF RISKS – TRANSFER OF TITLE
8.1. Risks of loss or damage to the Equipment, PoC and Software shall be transferred to the Customer at delivery according to the delivery procedure under article 7.1(Delivery and Receipt) of the GT&Cs.
8.2. Title to the Reports, Equipment, PoC and Software shall be transferred to the Customer at the full and complete payment of the price according to article 5 (Price – Payment) of the GT&Cs.
ARTICLE 9 – WARRANTY
9.1 Services, CISTEME warrants that the Services shall conform to the Order during six (6) months following the date of Services acceptance report according to the provisions of article 7.2 (Delivery and Receipt). Would any Service not comply with this warranty for a cause directly and exclusively attributable to CISTEME, CISTEME shall, at its choice, reperform such Services or correct performance of such Services.
9.2 Equipment and PoC
9.2.1CISTEME warrants that the Equipment and PoC delivered under the Order is manufactured in a professional manner in conformance with generally accepted engineering principles and practices and shall operate conforming the Order. Such warranty shall be in effect for a period of twelve (12) months from the date of delivery according to the provisions of article 7.1(Delivery andReceipt). Would any Equipment and PoC not comply with this warranty for a cause directly and exclusively attributable to CISTEME, CISTEME shall, at its choice, modify such Equipment or PoC or correct the defaulting Equipment or PoC.
9.2.2 The warranties and remedies set forth above shall apply only if the defaulting Equipment or PoC has been properly unloaded, stored, maintained, installed and used, in a professional manner consistent with the standard of quality and care within the industry, only by Customer’s personnel authorized to operate the Equipment and/or PoC, outside from any accident, alteration, abuse or any misuse.
9.2.3 The following defaults shall be expressly excluded from warranty by CISTEME when at least partly caused by:
- a design provided by the Customer or caused by Prior Information or material provided for by the Customer;
- abnormal use of the Equipment, PoC and/or Software, normal wear of the Equipment, PoC and/or Software, failure due to negligence or default in surveillance or maintenance of the Equipment, PoC and/or Software or any wrong maneuver not exclusively attributable to CISTEME;
- Customer’s decision to modify or repair the Equipment, PoC and/or Software itself or by a third party without CISTEME prior written consent.
9.3.1 Operational efficiency CISTEME warrants that the Software delivered under the Order shall be developed in a professional manner in conformance with generally accepted engineering principles and practices and operate conforming to the Order. Would Software licensed by CISTEME under the concerned Order fail to conform to this warranty, for reasons directly and exclusively attributable to CISTEME, the Customer shall, within six (6) months following the delivery of the concerned defaulting Software, notify CISTEME with the occurrence and evidences of such failure in warranty. Therefore, CISTEME shall do its best to repair or replace, at CISTEME’s choice, within the ten (10) working days following Customer’s written notice of the default.
9.3.2 Warranty exclusion The following defaults that affect the defaulting Software shall be expressly excluded from warranty when caused in all or in part directly or indirectly by failure due to negligence, abnormal use of the defaulting Software.
9.4 CISTEME does not warrant that the Software can operate error-free or uninterrupted.
9.5 NEITHER CISTEME NOR ANYONE ACTING ON ITS BEHALF MAKES ANY OTHER WARRANTY, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESSED OR IMPLIED, (INCLUDING ANY WARRANTY OF MERCHANTABILITY, SUITABILITY, PERFORMANCE OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO EQUIPMENT, POC AND/OR SOFTWAREOR SERVICES PROVIDED HEREUNDER.
ARTICLE 10 – LIABILITY
10.1. CISTEME, its contractors, subcontractors of any tier, suppliers and their respective insurers shall not be held liable to the Customer and its insurers whether arising under contract, tort (regardless of degree of fault or negligence), strict liability or otherwise, for loss of anticipated profit, loss by reason of plant or other facility shutdown, non-operation or increased expense of operation, service interruption, cost of purchased or replacement power, claims of customers, subcontractors, governmental fines or penalties, loss of use of capital or revenue, cost of money or for any special, indirect, incidental or consequential loss or damage of any nature arising at any time from any cause whatsoever.
10.2 The total liability of CISTEME (and its contractors, subcontractors of any tier, suppliers and their respective insurers) to the Customer and its insurers, whether in contract, tort (including but not limited to negligence), strict liability or otherwise, shall not exceed the compensation paid or payable by the Customer for the Equipment, PoC Report, Software or Service or any part thereof at the origin of the damage.
10.3 The Customer shall waive and shall cause its insurers to waive all right of recourse against CISTEME and its insurers, hold harmless and indemnify CISTEME, its contractors, subcontractors of any tier, suppliers and their respective insurers for all claim made by a third party above the aforesaid liability limitation under articles 10.1 and 10.2
10.4 Damages for delay in delivery of the Equipment, PoC Reports, Software or Services shall be exclusive of any other remedy the Customer may claim in such a case.
ARTICLE 11 – CONFIDENTIALITY
11.1. The Parties undertake that Prior Information provided by the other Party, the Results, the content of the Order and any other information of any kind provided by one Party to the other Party are confidential. Parties undertake not to disclose any such confidential information owned by the other Party to any third party, whether in whole or in part, in any form whatsoever, as well as not to copy, reproduce or duplicate in any other form or under any other manner, without the owning Party’s prior written consent, for any purpose other than for implementation of the Order.
11.2 The Customer undertakes to strictly limit the communication and any disclosure of CISTEME’s Prior Information only to members of its personnel which need to have access to the said confidential information to use the Equipment, PoC, Report or Software and to have these members of personnel be committed by the terms of this article 11 (Confidentiality).
11.3 The Customer undertakes to return CISTEME with all Prior Information communicated by CISTEME at CISTEME’s first request or at any date defined in the Order.
11.4 The Order shall not be considered or construed as express or implied as giving to the Parties any right of ownership or of use on the Prior Information owned by the other Party, except as necessary to implement the Order. Accordingly, the Parties shall refrain from filing any title or claiming any intellectual property right based on Prior Information of the other Party.
11.5 Upon demand by any of the Parties a specific Non-Disclosure Agreement (NDA) shall be written and agreed upon. In such a case, the NDA shall refer to the concerned Order and to the GT&Cs. The said NDA shall not contravene sections 11.1 to 11.4 here above.
ARTICLE 12 – INTELLECTUAL PROPERTY
12.1 Each Party shall remain sole owner of its Prior Information as well as of information generated independently from the Order.
12.2 Intellectual property rights associated with the Reports delivered under the Order shall vest with the Customer. Accordingly, the Customer shall be granted by the Order all the patrimonial rights associated to the Reports and therefore shall be entitled to copy, reproduce, duplicate in any form or under any manner the Reports without in restriction. Intellectual property rights associated with the Equipment PoC and Software shall remain the exclusive ownership of CISTEME and nothing in the Order shall be construed as transferring any aspects of such rights to the Customer or any third party. Accordingly, the Customer undertakes not to copy, reproduce, duplicate or reverse engineer in any form or under any manner the Equipment, PoC and/or the Software, without CISTEME’s prior written consent.
12.3CISTEME grants to the Customer the non-exclusive, nontransferable right, solely to operate the PoC or Equipment, to execute and load the Software in its executable version and to copy the Software for archival or emergency restart purpose only, excluding any right to disclose in any manner and/or grant a sublicense to third parties.
ARTICLE 13– FORCE MAJEURE
13.1. Neither Party shall be held liable to the other for any expense, loss or damage resulting from the delay or prevention of performance caused by any event beyond its control and that cannot be reasonably avoided or overcome in whole or in part, as well as in case of natural disasters, weather, fire, strike (including work stoppage occurring in CISTEME’s or its contractors’ premises), hacking, sabotage, embargo or aggravation of embargo, interruption or delays in transport or means of communication, acts or regulations emanating from public authorities or civil or military (including delays in the authorization or license of any kind), war, action or shortcoming of a subcontractor or supplier involving the postponement of delivery.
13.2. The Party experiencing such delay shall give prompt notice thereof to the other Party and the time for performance shall be equitably adjusted. The Party whose delay is excused hereunder shall, in good faith, exercise reasonable efforts to make up time lost by the force majeure event and shall continue performance of its obligations as soon as reasonably possible after cessation of the force majeure event.
13.3. Should the force majeure event last more than six (6) months, either Party shall be entitled to terminate the Order or part of the Order affected by the force majeure event. Therefore, any Equipment, PoC and/or Software or a part thereof completed or able to be completed at the date of termination shall be delivered to and paid by the Customer.
ARTICLE 14 SUSPENSION TERMINATIONS
14.1. CISTEME shall be entitled to suspend the Order or to terminate the Order according to article 14.2, including but not limited to non-payment by the Customer at any due date. The Order may be suspended by registered letter with acknowledgement of receipt sent by CISTEME to the Customer, until complete payment of the concerned invoice. Time period for implementation of the Order shall be extended accordingly, without prejudice to damages for delay in payment that CISTEME may claim. The amount due by the Customer shall be increased by all costs incurred during the delay and by interests for delay according to article 5.8 (Price and Payment) above. Suspension of the Order by CISTEME under the present article shall not be considered as due to CISTEME and shall not cause damages or remedies for the Customer.
14.2 In case of material breach of the Order by either Party, the other Party shall be entitled to notify the other Party by registered letter with acknowledgement of receipt to remedy such breach. If within thirty (30) days after date of this notification to remedy, the defaulting Party has not sufficiently remedied the breach, the other Party shall be entitled to terminate the Order for breach of the defaulting Party, by registered letter with acknowledgement of receipt. Termination of the Order shall be deemed acquired without any other procedure fifteen (15) days after sending the said letter, without prejudice to the damages CISTEME shall be entitled to claim due to the defaulting Party.
ARTICLE 15 – TRANSFER AND SUB-CONTRACTING
No Party shall be entitled to transfer all or part of rights or obligations under the Order without the other Party’s prior written consent. Notwithstanding the above mentioned, CISTEME shall be entitled to sub-contract to any third party all or part of the implementation and/or installation of part or all of the Equipment, PoC, Software and/or Services.
ARTICLE 16 – PERSONAL DATA PROTECTION
16.1 applicable regulations: Within the GT&Cs, the Parties undertake to abide by the enforced regulation in the process of personal data and in particular the regulation (EU) 2016/679 of the European Parliament and of the council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (hereunder the Regulation) enforced since the 25th of May 2018 and with is the law n°2018-493 of 20th of June 2018 “informatique et liberté”.
16.2 Processor In accordance with the Regulation, the Parties enact that CISTEME is assigned the role of a processor and the Customer is assigned the role of controller under the stipulation of appendix 1 “processing of Personal Data”
ARTICLE 17 – APPLICABLE LAW- SETTLEMENT OF DISPUTE
The GT&Cs and the Order shall be interpreted in accordance with and governed by the laws of France, with the exception of any rules of conflict of laws.In case of disputes regarding the interpretation or execution of the GT&Cs and/or the Order, both Parties shall endeavor their best efforts to reach an amicable settlement thereof. Failing which, such disputes shall be of the exclusive jurisdiction of the Tribunal of Commerce of Limoges (France).