General terms and conditions of supply
1. Application and opposability of hereby General Terms and Conditions of Supply
1. Hereby General Terms and Conditions (ˮGTCˮ) shall govern any sale of goods, equipment, computer programs or services (hereafter referred to as ˮProductsˮ) by SEQUANTA in France or abroad. Products shall be for professional use exclusively.
2. Unless otherwise expressly agreed upon in writing, hereby GTC shall supersede any document other than Specific Terms and Conditions of Supply (« STC ») provided in quotations or order confirmation by SEQUANTA. Any document (such as catalogues, leaflets, product descriptions or website information) other than STC or any document issued by the Client shall be non-‐binding for SEQUANTA.
3. All orders are subject to written acceptance by SEQUANTA and shall be binding only for the Products and quantities stipulated in the order confirmation. Any request for modification shall be only binding for SEQUANTA upon prior written acceptance by SEQUANTA, and related costs shall be borne by the Client. Shall unexpected or unforeseen circumstances compromise Products’ delivery, SEQUANTA shall be entitled to amend the terms of the order.
4. As a professional specialist in the field of the Products, the Client hereby declares and acknowledges that he has selected the Products under its sole responsibility, and in full consideration of its intended use. The Client shall be the sole person responsible for making all necessary checks and asking SEQUANTA any information deemed necessary for the purpose thereof. Validation by the Client releases SEQUANTA from any responsibility for the contents of approved documents.
5. In particular, as a professional specialist in the field of the Products, the Client undertakes to:
- verify, before any purchase of Products, that all information necessary to assess Products’ suitability to his needs were provided to him;
- verify that his equipment, environment or sites are convenient as regards Products’ use;
- comply with all precautions of use mentioned in Products’ usage guide, in addition to general or specific instructions provided by SEQUANTA.
3. Price and payment
6. Products’ price is listed in the STC.
7. Prices are exclusive of taxes and duties, cost of transport, installation, insurance and maintenance. SEQUANTA reserves the right to increase the price of the Products in the event of unforeseen circumstances impacting Products’ cost between order and delivery.
8. Payment shall be made within 30 days from the date of invoice, if Client has sufficient collateral. Price shall otherwise be paid upon delivery.
9. Orders for specific supplies require payment of a deposit.
10. Late penalty fees shall apply, calculated on the basis of the outstanding balance, including taxes, starting on the day the payment was due and until effective provision of money owed on SEQUANTA’s bank account. These penalties shall be of three times the statutory interest rate. In addition to that, pursuant to the provisions of Article L. 441-‐6 of French Code de commerce, a collection fee of 40 € shall additionally be charged for late payments, without requiring formal reminder or notice. SEQUANTA further reserves the right to immediately suspend all pending orders or request immediate payment of all pending invoices.
11. Estimated delivery times indicated in the order confirmation sent by SEQUANTA are not binding but are provided merely as an indication, for information purposes. Products are sold EX WORKS (Incoterm, ICC 2010).
12. SEQUANTA shall not be liable for any failure or delay in delivery times due to unforeseen circumstances or for reasons out of its control.
13. Estimated Products always travel at the risks of the Client, without any liability on SEQUANTA. Upon receipt of the Products, the Client undertakes to perform all necessary checks as to condition, quality and conformity of the Products, and make all reservations on related delivery documents and confirm said reservations via registered letter to the carrier within 3 (three) days following delivery (pursuant to the terms of Article L. 133-‐3 of French Code de commerce); and inform SEQUANTA of said reservations in the same timeframe, via registered letter.
6. Non-conformity and products’ return
14. In case of non-conformity of the Products, the Client shall make a claim within 10 days of delivery. Products shall otherwise be deemed conform and definitely accepted by the Client.
15. No Product shall be returned to SEQUANTA without its prior written consent. Return may only concern Product kept in its original condition and neither used nor deteriorated. Costs and risks relating to the return shall be borne by the Client who must ensure that transport comply with all laws and regulations, in particular as regards the lithium batteries.
16. Upon confirmation by SEQUANTA of alleged Products’ non-conformity, In the case of non-‐compliance found by SEQUANTA after return, it will proceed at its convenience to the exchange of the Products or refund the purchase price, without being subject to any other obligation or refund the purchase price, without being subject to any other obligation or compensation.
7. Retention of title
17. The Products, even delivered, remain the property of SEQUANTA until full payment.
18. In the event that the Client does not to comply with the time limits or terms of payment, SEQUANTA shall be entitled to take back the Products or request their return at the Client’s expenses.
19. The Client shall at all times to arrange for the goods to be identified as not being its property and thus insured these goods cannot be assigned as security or seized.
20. The Client undertakes to provide all care to the custody and preservation of the Products and subscribe to all necessary insurance policies to cover damages and risks related with their detention as long as the transfer of ownership is still pending, the property being retained by SEQUANTA.
8. Use of products
21. As a professional specialist in its field, the Client shall comply with all the precautions in the use of the Products, in addition to the instructions or specifications which may be provided by SEQUANTA.
The Client acknowledges, as a professional specialist in its field, being fully aware of the risks inherent in the use of the Products, and having the necessary skills and resources to prevent and assume these risks and waives all claims against SEQUANTA. The Client shall ensure that the premises and equipment are suitable for the use of the Products.
22. SEQUANTA warrants, during a period of one year following the date of delivery, that the Products comply with the technical specifications defined in the order confirmation and are free from defects in material or workmanship.
Any other warranty, including as to the suitability of the Products for a particular purpose, performance or result is expressly excluded. Under the guarantee the obligation of SEQUANTA is limited to the supply of an identical product or offering equivalent functionality, cost of transport exclusive of installation cost or cost of removal which remain at the expense of the customer.
23. The supply of computer programs does not include training, technical support, corrective nor upgrade maintenance. Updates are therefore never included in the offer. Such services are available upon request at SEQUANTA, and are governed by different terms and conditions.
24. To the maximum extent permitted by law, SEQUANTA disclaims all warranties, express or implied, relating to: use of a version of the Product different from currently supported version and non modified, if claim or liability might have been avoided by using currently supported or modified version; combination of Products or deployment thereof in connection with programs or materials not provided by SEQUANTA.
Provision of hereby clause shall provide all express or implied warranties of SEQUANTA including warranties of non‐infringement of third party proprietary or intellectual property rights.
10. Limitation of liability
25. SEQUANTA’s responsibility shall be limited as related only to means, not to results.
26. Therefore SEQUANTA’s liability may only be triggered in the event of gross negligence on its part.
27. SEQUANTA may only be held liable for direct material damage resulting from its negligence, excluding consequential or indirect damages such as, among others, lost profits, loss of production, image damage. SEQUANTA’s financial responsibility is capped by an amount equal to twice the price paid by the Client to purchase the Products.
28. These limitations of liability are knowingly accepted by the Client, given the tariff conditions it enjoys. The Client acknowledges having been informed of the possibility to benefit from limits of liability of a higher amount with higher tariff conditions.
29. SEQUANTA expressly disclaims any liability for:
- Products’ suitability to specific needs of the Client or specifically suited for its intended purpose;
- conditions of installation and use of the Products,
- Products’ performance of the or other specifications not provided by contract,
- the adequacy of the Products to the specific expectations of the Client or its intended use,
- normal wear and tear of the Products,
- the consequences of neglect, misuse or mishandling of products.
30. SEQUANTA is not responsible for total or partial breach of its obligations, upon the occurrence of an event impeding the performance of its obligations or making this performance particularly difficult or costly, especially the occurrence of one of the following events: civil or foreign war, insurrection, riot, acts of terrorism, natural disasters, embargoes, blockades, measures taken by French or foreign authorities, disruption of supplies, delays due to carrier, strike, lockout, the occupation of factories, social unrest.
11. Intellectual property
31. All intellectual property rights relating to the Products, including trademark and distinctive signs remain the sole and exclusive property of SEQUANTA.
32. Unless otherwise expressly provided hereby, the sale of the Products does not imply any transfer or license of these intellectual property rights.
33. The Client is solely responsible to ensure that its intended use of the Products does not infringe intellectual property rights of third parties, in countries where such use is considered.
34. License of use
35. The Client is granted a personal, non-‐transferable, non transmissible and non-‐exclusive license to use SEQUANTA’s computer programs, for the sole purpose of Products’ use.
36. This right can only be used for the personal needs of the Client, and on given equipment, The Client hereby undertakes that it shall not transfer this right to anyone. Expressly permitted use of Products shall be the sole right to use hereby granted. All other rights, especially the rights associated with reproduction, translation, modification, adaptation, shall be deemed retained by SEQUANTA. Reproduction of the documentation related to the Products is strictly forbidden.
37. In case a computer program is supplied as integrated into equipment, the Client undertakes to keep that software integrated, and neither to manipulate nor to replace it. The Client therefore undertakes to request SEQUANTA’s intervention for integrated computer programs. Under such circumstances, SEQUANTA shall remain free to replace the whole equipment, as it deems necessary.
38. As concerns non integrated computer programs:
- the Client is authorized to transfer, temporarily and at its own risks, SEQUANTA’s computer program on a backup equipment if agreed upon equipment turns out to be out of service, and provided the Client informs SEQUANTA beforehand; and
- use on a equipment other than the equipment agreed upon beforehand –be it as additional equipment or for definitive replacement-‐ or extension of preapproved equipment by increase in capacity, size, upgrade, or user group, requires prior written consent by SEQUANTA; and
- pursuant to applicable legal provisions, computer programs may not be reproduced or copied except to make one copy for backup purposes only.
39. Decompilation, interoperability
40. As regards decompilation or interoperability, Client’s rights shall be limited to the mandatory provisions of Article L.122-6-1 of French Code de la propriété intellectuelle.
41.The Client undertakes, that it shall, before requesting it from a third party or pursuing itself such information, ask SEQUANTA beforehand whether or not information necessary to achieve interoperability is already readily available.
If such information is not readily available, the Client shall notify SEQUANTA, via prior registered letter, of the operations to be conducted for the purpose thereof, the people supposed to undertake them, and the place of operation.
42.The Client undertakes that:
- it shall not make this information available to a third party;
- the information obtained must not be used to develop, produce or market a program which infringes copyright in the decompiled program, that the rightholder’s legitimate interests are not prejudiced and the use does not conflict with a normal exploitation of the computer program, and generally speaking, with SEQUANTA’s interests; and
- it shall not undertake any decompilation measures, including for interoperability purposes, out of the very narrow scope of the provisions of Article L. 122-6-1 of French Code de la propriété intellectuelle, and that those parts of the program that are not necessary to achieve interoperability must not be decompiled.
43. SEQUANTA reserves the right to verify on Client’s premises that it complies with hereby terms and conditions and that the information obtained for decompilation purposes is neither made available to any third party, nor used to develop, produce or market a similar or competing program.
44. Technical protection measures
45. The Client is informed and expressly accepts that, pursuant to applicable laws and regulations:
- Product may integrate technological devices to control their conditions and environment of use and to verify that Clients fully comply with hereby provisions and that it therefore accepts to activate, upon request, these technological devices and to provide SEQUANTA with any information needed; and
- SEQUANTA shall be free to use such information to verify Client’s compliance with the terms of hereby license to protect its intellectual property rights or to verify general compliance; and
- the Client shall neither circumvent nor attempt to circumvent technical protection measures.
46. SEQUANTA therefore reserves the right to:
- integrate technological devices into Products to control their conditions and environment of use and to verify that Clients fully comply with hereby provisions, in particular by accessing data concerning conditions of use of the Products or number of copies made; and
- integrate a locking system or a licensing authorization key into Products.
47. The Client expressly accepts to be bound as follows:
- it shall neither circumvent nor attempt to circumvent such protection measures;
- it shall neither use or allow a third party to use the Product without the locking system or the licensing authorization key;
- SEQUANTA shall remain free to control at any time, and without prior notice, recordings of these technological devices; and
- it shall never try to disassemble a Product;
- it shall never use the Product in a manner not expressly permitted by hereby license.
12. Data protection
48. The Client shall remain the sole and exclusive responsible person as regards compliance in terms of data collection or data processing undertaken using the Products.
49. Unless otherwise provided by the Client in writing no later than the time of the order, SEQUANTA reserves the right to quote the Client as user of the Products in its marketing materials.
14. Law and dispute resolution
50. All sales made by SEQUANTA shall be solely governed by French Law.
51. The courts within the jurisdiction of the Court of Appeals of Lyon shall be solely competent for any dispute concerning the validity, interpretation and performance of the contract, even in case of an appeal or of multiple defendants.