General sales and warranty conditions
Agreement: means these General Terms and Warranty- Conditions and, if any, any Exhibits.
OTECH means OTECH SAS, a French company having its registered office in Rue de la Sablière, 64270 Puyoô (France).
Products: means the products sold by OTECH, as described in the Quotation.
Purchaser: means the legal entity acquiring the Products, as specified in the Quotation.
Quotation: means the document issued by OTECH detailing the Products provided by OTECH, the prices, time and terms of delivery and when applicable variations form this document.
Order: means the acceptance of a quotation by a Purchaser, received by OTECH.
All Quotations, acknowledgements, orders and invoices issued by OTECH are subject to the version of the Agreement in force at the date of the Quotation. The validity of Quotations is limited in time as specified in the Quotation, without exceeding thirty (30) days. Quotations shall not be considered as an offer. Any Order shall only become definitive by its acceptation by OTECH, following the acceptance of the Quotation by the Purchaser. OTECH reserves the right to refuse to accept any Order at its sole discression.
3. CHANGES, RESCHEDULING AND CANCELLATIONS
Any and all changes in an Order (as quantities, dates for delivery, performance, or cancellation of part or all of the Order) after the acceptation by OTECH shall be required in writing to OTECH. No such modification or cancellation shall become effective unless accepted in writing by OTECH. Acceptance of any such modification or cancellation shall be at OTECH’s discretion and will be upon such terms as OTECH may require which may include changes to price, surcharges and cancellation charges as deemed appropriate by OTECH.
4. PAYMENT TERMS, PRICES, TAXES AND DUTIES
Listed Prices for the Products may change at OTECH’S Discression, without prior notice. Prices mentioned in Quote shall only be subject to modification in the event of a modification of specific tax and custom levies on these products, or in the event of a important modification of the raw materials. In such event, OTECH shall notify the Client in writing of such change. The Client shall have eight (8) day following the receipt of such notification to notify its refusal of the modification. Without any answer by the client within this period, the price modification shall be deemed accepted by the Client. Prices invoiced by OTECH in an Order will be the prices specified in the Quotation, as accepted by the Purchaser within the validity of the Quotation.
Unless specified on the invoice by OTECH, the Terms of payment shall be the following: prices are FCA (Free Carrier as defined by Incoterms 2010), OTECH factory in Puyoô (France) (FCA point), loaded on containers or trucks. Prices do not include any taxes, freight, handling, insurance, duty or other similar charges or costs, payments of which shall be the sole responsibility of the Purchaser. The Purchaser shall pay or reimburse OTECH for all applicable taxes, and any other governmental charges levied, imposed or assessed by any jurisdiction where the Product is delivered on the amounts invoiced under these terms and conditions. Each party will cooperate with the other party with respect to tax matters and provide and make available to the other party all tax-related information reasonably requested by the other party.
All stipulated Payments terms are conditioned to timely payments by the Purchaser and any past due balance shall accrue interest at an annual rate of the eighteen (18%) percent. All payments shall be made in the legal currency designated on the invoice by OTECH. OTECH reserves the right, prior to shipment, to modify any and all delivery conditions, require full advance payments, suspend, delay or cancel any shipment shall a modification of the Purchaser’s creditworthiness or should the Purchaser fail to fulfil any due payment obligation.
5. RETENTION TITLE
The Products shall remain the ownership of OTECH until their full payment. OTECH may request the return of the Products in the event of any non-payment or delayed payment. Any down payment paid by the Purchaser will be kept by OTECH.
6. DELIVERY, RISK OF LOSS, DELAYS
Unless otherwise stated on the invoice, deliveries of product will be FCA (Free Carrier as defined by Incoterms 2010). Risk of loss will pass to the Purchaser at the FCA point here above mentioned. Indicated scheduled shipment dates for certain items of an order are estimated dates only and may be subject to change by OTECH without prior notice, incurred liability nor right for the Purchaser to cancel the order. OTECH reserves the right to invoice storage costs if the Products are not delivered to the Purchaser in due time due to the Purchaser’s or its carrier failure for any reason.
OTECH SHALL HAVE NO LIABILITY FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES DUE TO FAILURE FOR ANY REASON TO MEET SCHEDULED SHIPMENT DATES. OTECH shall not be liable for any damage to or loss of the Product following delivery to the FCA point, including any damage or loss in transit. OTECH shall never by liable in any capacity for the delays in the assembly by a third party service provider.
7. INSPECTION, ACCEPTANCE, RETURNS
The Purchaser shall thoroughly inspect each shipment of Products promptly upon receipt. All Products will be deemed to have been accepted eight (8) days after receipt, except for Products for which the Purchaser makes a written claim of non-conformance within such time. No Products shall be returned to OTECH except after prior authorization by OTECH. .All such returns will be subject to OTECH’s then-current returned goods policies and procedures.
8. TECHNICAL ASSISTANCE, SAMPLES, DEMONSTRATIONS
Any technical advice, recommendations, samples, lab test, and/or demonstrations provided by OTECH (or its representatives) concerning the use, application or compatibility of any Products or materials are provided by OTECH solely for the purpose of assisting the Purchaser to evaluate, at its own risk, the suitability of Products for the Purchaser’s intended use. OTECH recommends that the Purchaser make its own tests to determine such suitability. No such advice, recommendations, samples, lab tests and/or demonstrations provided by OTECH shall be construed as an express or implied warranty.
9. LIMITED WARRANTIES AND DISCLAIMERS
The Purchaser expressly understands and agrees that the use of the Products is at the Purchaser’s sole risk and that the Products are provided AS IS and AS AVAILABLE.
OTECH undertakes to use its best efforts to perform its obligations under this Agreement with the customary standard of care in the profession.
OTECH warrants Products against defects in materials or faulty workmanship for twenty-four (24) months from the date of delivery of the Product PROVIDED THAT:
(i) the Products have been used, stored and maintained at all times properly and in accordance with OTECH’s instructions ; and
(ii) no alteration, modification or addition has been made to the Products without OTECH’s prior written consent;
(iii) the alleged error, malfunction or inconsistency is not caused by a Force Majeure event, or by external factors such as but not limited, the chemical composition of soil and waters and the telluric currents.
(iv) the alleged error, malfunction or inconsistency is not caused by a normal wear and tear,
(iii) the alleged error, malfunction or inconsistency has been notified to OTECH in writing within the warranty period specified above. The claim of the Purchaser will identify the alleged error or malfunction.
Upon receipt of such written claim, OTECH or its agent or representative shall have the right to test or to inspect the Product at its then location or to have the Product despatched to a point designated by OTECH or returned to OTECH, carriage pre-paid. Warranty is limited to the replacement of the defective spare part, any other costs (including labour costs) or damages excluded. Defective spare parts will be returned to OTECH, carriage prepaid and will remain the ownership of OTECH. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO THE PURCHASER. Returned items that show evidence of mishandling or misapplication may be returned by OTECH at the Purchaser’s expense. OTECH shall not be liable for damage to or loss of goods furnished by the Purchaser or third party. Materials provided by third party are excluded from this warranty.
OTECH IS NOT TO BE HELD LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES CAUSED BY ITS PRODUCTS, INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF USE, INCOME, PROFIT, GOODWILL; OR BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND/OR DAMAGES TO PROPERTY. FURTHER, IN NO CASE WILL OTECH ’S LIABILITY EXCEED THE PRICE PAID FOR THE PRODUCT. THIS WARRANTY IS EXPRESSLY IN LIEU OF ANY OTHER EXPRESSED WARRANTY OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND OF ANY OTHER OBLIGATIONS OR LIABILITY ON THE PART OF OTECH, ITS EMPLOYEES OR AGENTS.
10. INTELLECTUAL PROPERTY RIGHTS (IP)
OTECH IP included in the Products are protected by copyright law and international copyright treaties as well as other intellectual property laws and treaties. OTECH owns and will at all times own OTECH IP contained in the Products, including without limitation the generality of the foregoing, all upgrades, enhancements, modifications, improvements, customization, or derivative works thereof even if these development have been created by OTECH in accordance with this Agreement, including those developed based upon any feedback or suggestion of the Purchaser.
Nothing in this Agreement will grant to the Purchaser any right, title or interest in or to OTECH IP contained in the Products.
OTECH will have the sole right to obtain, in its own name, statutory protection in the form of patents, industrial designs, trade-marks and copyrights for invention, industrial designs, trade-marks and original works of authorship that it owns, including all such rights as may exist in and to the Products and in any upgrades, enhancements, modifications, improvements, or derivative works thereof.
The Purchaser shall not during this Agreement or at any time thereafter seek to register anywhere in the world any intellectual property rights owned by OTECH. The Purchaser will not, nor will the Purchaser knowingly permit any third party to modify or create derivative works of OTECH IP contained in the Products.
The Purchaser undertakes to notify OTECH as soon as the Purchaser has the knowledge of any actual or threatened infringement of OTECH IP and of any claim or action made or brought against OTECH for infringement of the intellectual property rights before the courts or otherwise. The Purchaser undertakes to provide OTECH free of charge with any documents and information the Purchaser has and any assistance which could be necessary for OTECH’ claim or its defense relating to OTECH IP.
The Purchaser acknowledges and agrees that OTECH may continue to make changes and enhance the Products and that those changes and enhancements will be owned by OTECH.
OTECH may terminate this Agreement if the Purchaser has not complied with any requirement or restriction described in this Agreement, does not pay the prices or has otherwise violated this Agreement. In such a case, this Agreement shall be terminated by OTECH if the Purchaser has not cured the default within ten (10) days of reception of a written notice. In addition, OTECH may terminate this Agreement forthwith in the event of bankruptcy or insolvency of the Purchaser or in the event any proceeding is brought by or against the Purchaser under the bankruptcy or insolvency laws, by the appointment of a receiver over all or a substantial part of the assets of the Purchaser, or by the Purchaser’s making of an assignment for the benefit of its creditors.
12. RELATION OF THE PARTIES
OTECH and the Purchaser are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sale representative or employment relationship between OTECH and the Purchaser. The Purchaser will have no authority to make or accept any offers or representations on OTECH’s behalf.
13. ENTIRE AGREEMENT
These terms and conditions constitute the entire agreement between the Purchaser and OTECH. In the case of conflict, terms and conditions contained herein will supersede and control any contrary terms. Any purchase order, written confirmation, or other reasonable expression of acceptance by the Purchaser will form an acceptance, which is expressly limited to these terms and conditions. Any different, additional, or inconsistent terms or conditions of Purchaser’s purchase order or other documents will constitute a material alteration of OTECH’s offer, and unless specifically accepted in writing by an authorized representative of OTECH, are objected to and will not be binding on or effective against OTECH. It is agreed that if OTECH does not exercise or enforce any legal right or remedy available to it under the Agreement (or any applicable law), OTECH will not be deemed to have waived its rights or remedies, and those rights and remedies will still be available to OTECH. Any waiver of any provision of this Agreement will be effective only if OTECH expressly states in a signed writing that it is waiving a specified term of the Agreement.
14. NON SOLICITATION
The Purchaser will not, either for itself or any of its affiliates, induce or attempt to induce any employee of OTECH to leave the employ of OTECH; and/or make in any way initiate any unsolicited offer of employment to any person employed by OTECH or otherwise interfere with the relationship between OTECH and any of its employees for two (2) years as from the termination of the Agreement.
OTECH has imparted and may from time to time impart to the Purchaser certain confidential information relating to the Products. The Purchaser hereby agree that he will use during the term of this Agreement and for a period of three (3) years thereafter such confidential information solely for the purposes of this Agreement and that they will not disclose, whether directly or indirectly, to any third party such information other than as required to carry out the purposes of this Agreement. For purposes of this Agreement, confidential information will mean any information not generally known to the public, thereby giving the definition of confidential information its broadest possible interpretation.
If any court of law that has jurisdiction rules that any provision of this Agreement is invalid, then that provision will be removed from the Agreement without affecting the rest of the Agreement. The remaining provisions of the Agreement will continue to be valid and enforceable
17. FORCE MAJEURE
OTECH shall not be liable for any failure to perform its obligations where such failure is as a result of Acts of God (including fire, explosion, flood, and natural disaster), any civil or military action, measures taken in order to fight the effects of diseases, strike or lock-outs, unavailability of deliveries, delays in transportation, act or order by any government, department, council or any other cause or event not reasonably within OTECH’s control.
The Agreement will be binding on the Parties and their successors and assigns. OTECH may assign the Agreement in whole or in part at any time with notice to the Purchaser. The Purchaser may not assign the rights granted under this Agreement to a third party without the prior written approval of OTECH.
If there is any contradiction between the English language version of this Agreement and a translation of this Agreement, the English language version will always take precedence.
Any notice required to be given to any party to the other will be personally delivered or sent by courier, facsimile, electronic mail or by registered or certified mail, return receipt requested, postage prepaid, to the address of the other stipulated in the Quotation. Should either party change its address, notice of such change will be given to the other party as herein provided and thereafter the new address will be deemed inserted herein in lieu of the address specified in the Quotation
21. GOVERNING LAW
This Agreement will be construed and governed by the French laws. The Parties agree to submit to the exclusive, personal jurisdiction of the courts of Pau, France to resolve any legal matter arising from or related to the Agreement.