GENERAL TERMS AND CONDITIONS OF SALE
ARTICLE 1 – APPROVAL OF THE GENERAL TERMS AND CONDITIONS OF SALE
1.1. The present General Terms and Conditions of Sale (hereinafter referred to as the “GTCS”), together with the particular conditions which complete or modify the GTCS, set out the conditions under which iXblue sells goods and/or services to the customer (hereinafter referred to as the “Customer”) and are part of the order (hereinafter referred to as the “Order”) between iXblue and Customer. iXblue quotations are also ruled by present terms and conditions.
1.2. Any particular conditions shall prevail on the GTCS.
1.3. The application of professional practices is expressly excluded when the said professional practices do not conform to the GTCS or particular conditions.
1.4. Unless all parties agree otherwise, any terms and conditions included in the general conditions of purchase or any other documents coming from the Customer are not applicable to iXblue.
1.5. By accepting any offer from iXblue, the Customer shall be deemed to have approved the Orders terms and conditions unconditionally, and hereby undertakes not to invoke any document against any of the provisions herein.
ARTICLE 2 – INTELLECTUAL PROPERTY RIGHTS
2.1. All the intellectual property rights, protectable or not, related to the goods and/or services provided, including without limitation rights related to studies, know-how, software, firmware, patents, schemes, models, drawings and any other documents provided or sent by iXblue shall remain, subject to the rights of third parties, the property of iXblue and they shall not be assigned to any third party without the prior written approval of an authorized representative of iXblue.
2.2. As a consequence, iXblue shall grant to Customer a non-exclusive right of use of all intellectual property right belonging to iXblue for the purpose of using goods and/or services for the Customer own needs. This right of use is granted for the whole world, for the whole protection period of said rights and against payment of the Order price.
2.3. The Customer shall take all necessary measures in order to:
• Ensure that any person or entity under its authority (including the Customer’s staff, partners, joint contractors, subcontractors, etc) will protect and comply with the intellectual property rights (patents, drawings, designs, etc) belonging to iXblue or used by iXblue under third party’s license ;
• Securely handle any “industrial secret” attached to technical documents, studies, information or know-how which the Customer or any other person or entity under its authority would have access to.
ARTICLE 3 – CONTRACT OF SALE
3.1. Only Orders confirmed in writing by iXblue will be deemed definitely agreed. The confirmation will be formalized by issuance of an Order acknowledgment, subject to any constraint due to export control rules (cf. article 5).
3.2. Whenever a quotation is provided by iXblue, the commitment of iXblue to honor that offer, may only be deemed valid once the Order has been placed by the Customer and confirmed in writing by iXblue, as set forth in article 3.1 above.
3.3. In case of contradiction between quotation, Order and Order acknowledgement, the later alone shall prevail.
3.4. Unless otherwise stated, any quotation issued by iXblue shall be valid for a period of 90 calendar days from the date of issuance of the quotation.
3.5. In case a Customer wishes to cancel any Order after the unconditional acceptance of iXblue, the Customer shall be liable to pay to iXblue, by rights, an order cancellation compensation of 30% of the Order value. Moreover, for any Order or item of an Order corresponding to non-recurrent engineering activities and/or to goods with lead times of ten (10) weeks or more, the said compensation will be increased by:
• 20%, to a total of 50% of the Order value, if the cancellation is received at iXblue’s premises more than eight (8) weeks before the last planned delivery date,
• 40%, to a total of 70% of the Order value, if the cancellation is received at iXblue’s premises between eight (8) and four (4) weeks before the last planned delivery date,
• 70%, to a total of 100% of the Order value, if the cancellation is received at iXblue’s premises within four (4) weeks of the last planned delivery date.
iXblue shall have the right to charge the compensation, in whole or in part, against any advance payment received. The balance of the compensation shall be paid by the Customer upon its Order cancellation. Any delay in payment shall trigger application of the interest payments as per article 8.3 below, starting on the cancellation receipt date. The compensation does not allow the Customer to claim any right, in whole or in part, on any originally ordered goods.
ARTICLE 4 – DELIVERY AND TRANSPORTATION OF THE GOODS SOLD
Unless otherwise specified, the goods shall be deemed delivered to the Customer by iXblue in accordance with the incoterm “Ex-works” (EXW Incoterms 2010 ICC) at iXblue premises upon the third working day following the notification to the Customer of goods availability, or to a carrier appointed by the Customer. In this latter case, it is the date of goods availability to the carrier which shall prevail. The Customer shall retrieve the goods within fifteen (15) calendar days of the notification of availability. Upon expiration of this time period, the Customer will be subject to penalties calculated according to article 8.3 below, without affecting iXblue’s rights to cancel the Order following the Customer’s default and to claim Order cancellation compensation computed as per article 3.5 above (applying the 100% order value case as relevant).
4.2. Delivery time
Deliveries shall be made according to the availability of goods. The planned lead times stated in iXblue's Order acknowledgment have indicative value, shall always be subject to the dispositions of article 5 below and shall be construed, unless otherwise stated, as when the goods sold will become available as stated in article 4.1 above. Upon iXblue’s sole discretion, the planned lead times shall be determined based on the full payment of any agreed advance payment. Delays with respect to the planned lead times shall not give rise to any damages indemnification, liquidated damages, compensation, price reduction or cancellation of Orders. Whenever possible, iXblue will inform the Customer as soon as it will appear that the last communicated planned delivery date will not be fulfilled and will provide a new planned delivery date simultaneously.
4.3. Transportation costs and risks
Unless otherwise agreed, transportation costs and risks shall be borne by the Customer, pursuant to EXW Incoterm.
4.4. Partial deliveries
iXblue may make partial or total deliveries after prior notification to the Customer.
ARTICLE 5 – EXPORT/IMPORT CONTROL
5.1. Whenever an export, import or transfer license is required for the Order performance, iXblue is committed and bound to the said Order only once all the licenses required have been received. To that extent, iXblue reserves the right to issue a first Order acknowledgment conditional to the reception of the said licenses. In this case, a second non-conditional Order acknowledgment may be issued once the said licenses would have been received, confirming the planned delivery date.
5.2. Pursuant to the applicable export control rules, the Customer undertakes to comply with any obligation stated by the French authorities and with any declaration on his behalf, particularly as related to the final utilization of the sold goods or to the commitment to non-re-exportation without prior authorization.
5.3. The denial or withdrawal of any license by the competent authorities shall be considered as a force majeure event which may result, as the case maybe, in the cancellation of the concerned Order in whole or in part, without iXblue being considered liable in any manner whatsoever for damages or compensation to the Customer.
ARTICLE 6 – AUTHORIZATION TO RE-SELL THE GOODS SOLD
The Customer is deemed to use the goods sold in the Customer’s normal course of business. Up until full discharge of the sold goods from the property reserve in accordance with article 9 below, the Customer shall not re-sell the goods delivered, nor pledge the goods delivered or use them as security, or transfer the title thereto, even as a guarantee. Notwithstanding the above mentioned points, the Customer shall not re-sell the sold goods in breach of the provisions of article 5 above.
ARTICLE 7 – SERVICES RELATED TO THE GOODS SOLD
7.1. The performance of any services related to the goods sold is accomplished at the plants or warehouses of iXblue or in any other place mutually identified with the Customer. Except as otherwise stated, the said services shall be performed in accordance with the applicable procedures in force in iXblue and iXblue shall provide the Customer with all the possible prerequisites and prior dispositions that fall under Customer’s responsibility. The proper fulfillment of those prerequisites and prior dispositions are an essential condition for the performance of the services, under the responsibility, at the cost and at the risk of the Customer.
7.2. The planned performance dates are set forth in the Order and are conditionally dependent on the proper fulfillment of any prerequisites and prior dispositions as stipulated by iXblue under article 7.1 above. Upon iXblue’s sole decision, the planned performance times can be determined based on the full payment of any due advance payment. In case of delay if the services performance, provisions of article 4.2 shall apply.
7.3. Except in case of expressly stipulated and justified reserve by the Customer following the completion of any service and confirmed in writing to iXblue within three (3) calendar days, the said service performance shall be deemed accepted without reserve by the Customer.
7.4 The concerned personnel from iXblue and the Customer, including any contractors, sub-contractors and consultants, shall be adequately informed of any relevant dispositions in force in any location where the services are to be performed and shall comply with said dispositions, iXblue and the Customer remaining responsible for their own personnel.
ARTICLE 8 – PRICE OF THE GOODS AND RELATED SERVICES
All prices are stated before any tax and duty and are based on iXblue prices in Euro, as communicated to the Customer. The goods and any related services are charged based on these prices and in line with the quantities and any related services mentioned in the Order acknowledgment. Any taxes, charges or duties payable under French or any foreign law (import or transit, etc) shall be borne by the Customer. Unless otherwise stated, the packaging, transportation, insurance and other costs shall always be borne by the Customer.
8.2. Terms of payment
Unless otherwise stated, the price shall be paid by the Customer:
• On the basis of an advance payment invoice issued by iXblue along with the Order acknowledgment, immediately due at reception;
• On the basis of the invoice(s) issued by iXblue after delivery of goods or performance of services, payable by bank transfer at maturity as stated on the invoice(s) – or thirty (30) calendar days net from invoice date if no maturity mentioned on invoice(s) – and using the bank details provided by iXblue.
8.3. Sanctions and penalties applicable in case of non-payment or late payment
In case of delay of payment, iXblue shall be entitled to apply a penalty on the amount of the relevant invoice, calculated on the basis of an interest rate equal to the refinancing rate of the European Central Bank increased by ten (10) percentage points. In addition to this penalty, iXblue shall be entitled to the payment of a lump sum as defined in the article L441-6 of the French Commercial Code. When the payment recovery costs supported effectively are greater than the lump sum compensation, iXblue may also claim, upon justification, an indemnity for the extra costs incurred. In case of late or non-payment on the due date, including for any agreed installment, iXblue has the right to suspend execution of the Order without prior notice and without altering any other right or action in resolution and/or damages. In case of non-payment, the Order can also be terminated by rights upon iXblue’s decision without prior formal demand, and iXblue may also ask as an emergency procedure (injunction) that the goods be returned, without prejudice to any other claims for damages.
ARTICLE 9 – RETENTION OF TITLE
iXblue shall keep full title to the goods sold until the price has been fully paid, including the principal, and any applicable interests, penalties and indemnities. For the purpose of this clause, the remittance of an instrument giving rise to an obligation to pay (bill of exchange, or any other mode of payment) shall not be held as effective payment until full collection of the due amount. Any failure to pay any amounts payable on due date shall entitle iXblue to claim for the goods. In case of a seizure, or in case of a third party procedure, before full payment of the due amounts, the Customer shall notify iXblue immediately and shall inform the said third party of the retention of title by iXblue. The above provisions shall not make obstacle to the transfer to the Customer, upon delivery, of all the risks (loss and damage) associated to the goods sold.
ARTICLE 10 – ACCEPTANCE AND RETURN OF THE GOODS AND/OR SERVICES
10.1. Without prejudice for any claims against the forwarder or carrier, all claims against visible defects on or non-conformity of the goods delivered or services performed must be notified in writing not later than thirty (30) calendar days after delivery of the said goods or completion of the said services. Beyond this period of time and without any adverse notification, the Customer is considered as having accepted the goods delivered and/or the services performed with no reserve. The Customer shall provide iXblue with all evidence in proof of the defects detected.
10.2. The Customer shall refrain from intervening on its own or having any third party intervene and shall facilitate any action from iXblue intended to remedy to the default.
10.3. Any return of goods or re-performance of services shall be agreed upon by written consent from iXblue. All transportation costs and risks associated with the return of the goods shall be borne by the Customer.
10.4. In case of any apparent defect or non-conformity observed on the goods delivered and/or the services performed, and duly ascertained by iXblue, the Customer shall be entitled to have the goods and/or services repaired, replaced or re-performed respectively, at no extra cost and without any other indemnification.
ARTICLE 11 – WARRANTY
11.1. Terms of the contractual warranty
The goods and/or services sold are guaranteed against any such operating defects as may result from defective material, workmanship, design or assembly for a period of twelve (12) months following delivery, and during normal use and for the intended purpose of the goods and/or services. The contractual warranty is definitely void in the following cases:
• Whenever a good and/or service sold is opened, repaired or modified by the Customer or any third party without preliminary written consent from iXblue.
• The installation of the prescribed goods stipulated, if necessary, by the particular conditions, is not carried out by iXblue or by a third party with prior agreement with iXblue;
• The training for the use of the prescribed goods stipulated, if necessary, by the particular conditions is not carried out by iXblue or by a third party with prior agreement with iXblue;
• The component utilized, or the defective design of the goods is attributable to specific requirements of the Customer without endorsement by iXblue;
• The operating defect is caused by an intervention or as a result of a modification that was performed without iXblue prior consent;
• The operating defect was caused by abnormal use and/or use without complying with the intended function of the goods;
• The failure was caused by normal deterioration (wear and tear) of the product, or by negligence or by improper care on the part of the Customer;
• The defect was caused by force majeure.
11.2. Enforcement of the contractual warranty
As soon as the Customer is aware of any operating defect, the Customer shall contact, by any means, iXblue to initiate a warranty claim. On a case by case basis, an intervention in the Customer’s premises by iXblue technical department can be organized by mutual agreement of iXblue and the Customer (such intervention being performed as per the dispositions of article 11.4 below). As part of the warranty, iXblue shall decide whether to repair or replace the goods and/or to re-perform the service, at no extra costs. Thiswarranty shall cover the labor costs of the following operations as performed by iXblue: dismantling and reassembly of the goods themselves at iXblue’s plant or on site. The repair, replacement or re-performance of parts of defective good or service shall not cause the warranty period mentioned in article 11.1 above to be extended, to the exception of the said replaced, repaired or re-performed parts for which a three (3) month warranty period is granted from shipment to the Customer of the replaced, repaired or re-performed good or service.
11.3. Transportation costs and risks
Any return of goods under warranty shall be previously agreed upon in writing by iXblue, all costs and risks to return the goods to the location stipulated by iXblue being borne by the Customer. All costs and risks for the return of the goods to the Customer, to the location stipulated by the Customer, shall be borne by iXblue.
11.4. Intervention on site
The interventions by iXblue personnel in the Customer’s premises shall be performed in accordance with the applicable procedures in force in iXblue and iXblue shall provide the Customer with all the possible prerequisites and prior dispositions that fall under the later responsibility. The concerned personnel from iXblue and the Customer, including any contractors, sub-contractors and consultants, shall be adequately informed of any relevant dispositions in force in any location where the services are to be performed and shall enforce said dispositions, iXblue and the Customer remaining responsible for their own personnel. In case the terms of the contractual warranty as exposed in article 11.1 above or the stated prerequisites and prior dispositions happen not to be satisfied, iXblue reserves the right to invoice the Customer for the intervention realized (personnel and travel costs), with prices available upon demand.
ARTICLE 12 – FORCE MAJEURE
12.1. A Force majeure event shall be understood, pursuant to French law, as an unpredictable, irresistible and beyond a party’s control event.
12.2. Upon occurrence of a Force Majeure event, and within a maximum period of ten (10) calendar days starting from its occurrence, the affected party shall notify the other party by registered letter with return receipt requested and indicate the circumstances, complete with any written evidence required. All the obligations affected by a Force Majeure event shall be suspended.
12.3. Should any Force Majeure event prevent either party to fulfil its contractual obligations for more than thirty (30) calendar days, starting from the abovementioned notification, and without any agreement to pursue the performance of the Order, the parties shall be entitled to terminate the Order or any part thereof in accordance with article 13.2 below.
ARTICLE 13 – TERMINATION
13.1. In case of breach by a party of its contractual obligations, and without this breach being remedied within a period of thirty (30) calendar days from the date of a formal notice of the other party requesting to do so, the non-defaulting party shall be entitled to terminate immediately and without any further formality the concerned Order.
13.2. Upon termination, iXblue shall be paid for the goods and services delivered to the Customer up to the termination date, and shall be reimbursed by the Customer for all the direct costs incurred because of the termination. Except in case of termination for default of a party, the amounts indicated here above are the only amounts the parties may claim in respect of the termination and no other compensation or damages may be claimed by either party from the other party.
ARTICLE 14 – COMPLIANCE WITH LAWS AND REGULATIONS
iXblue undertakes to comply with all applicable laws and regulations and in particular:
• All the applicable requirements of the French Labor Code, especially the provision to the Customer of all the documents and certificates requested by the said code.
• All the applicable laws and regulations about taxation, anti-bribery and integrity, personal data protection (in particular GDPR regulation) and health, safety and environment (in particular REACH and RoHS regulations).
ARTICLE 15 – LIABILITY
15.1. Whenever related, including presumably, to any breach, act or omission of iXblue, its employees, agents, representatives or subcontractors, arising from or in any way relating to the Order, whether based on the Order, tort (including negligence), strict liability or any other legal theory:
• in no event shall iXblue, its employees, agents, representatives or subcontractors be liable for loss of contract, work interruption, loss of use, loss of data, loss of revenue, profit or anticipated savings, loss of goodwill or any indirect, special, incidental, consequential, exemplary or punitive damages, even if advised of the possibility of such losses or damages ; and,
• the maximum aggregate liability of iXblue, including its employees, agents, representatives and subcontractors, shall not exceed the total value of the Order concerned by the claim.
15.2. Except as otherwise excluded by any applicable law or regulation, in no case the liability of iXblue for any damage due to the performance of the Order, the sold goods and/or the related services shall exceed the applicable limit of its insurance policies, or the selling price of the concerned goods and services if no insurance policy is applicable.
15.3. The aforementioned restrictions on liability are not applicable in cases of damage to third party, personal injury or death or damages resulting from any fraudulent act, wilful misconduct or gross negligence of iXblue or its employees.
ARTICLE 16 – INSURANCES
iXblue and the Customer undertake to maintain all the necessary insurances to cover any risk or damage that could arise within or as result of the performance of the Order.
ARTICLE 17 – APPLICABLE LAW AND SETTLEMENT OF DISPUTES
17.1. The interpretation, performance or non-performance of the Order and any and all matters in dispute between the Customer and iXblue, whether arising from the Order, or arising from alleged extra-contractual facts prior to, during, or subsequent to the Order, shall be governed by the laws of France, and, excluding the 11th April 1980 United Nations convention on international sales of goods.
17.2. Any dispute related to or arising from the validity, construction or execution of the Order, and which cannot be settled by amicable agreement within one (1) month from notification of the said dispute, shall be submitted to the exclusive jurisdiction of the courts of Paris.
ARTICLE 18 – PROVISIONS ABOUT SOFTWARE
18.1. Under this article, the word “Software(s)” means any software or firmware provided by iXblue to Customer. Subject to anything to the contrary in this article 18, all the other terms and conditions are applicable to Software.
18.2. Without prejudice to article 2, for any Software provided by iXblue, the Customer shall only have a right to use said Software for its own purposes, to the exclusion of any other right. This restriction shall not be construed as restricting the property rights of the Customer over the tangible support of any such Software. In particular, no source code of the Software shall be assigned or transferred to the Customer.
18.3. It shall be the Customer’s exclusive responsibility to ensure that Customer hardware and software environment is compliant and suitable for the use of the Software.
18.4. iXblue’s liability shall be excluded:
• With regard to the use of Software by the Customer and of the results so generated by the Customer. The use of the Software shall be under sole and exclusive responsibility of the Customer.
• With regard to the consequences, of whatever kind, resulting from a Software modification to the sole initiative of the Customer or from the integration of the Software, without iXblue’s consent, within a Customer’s larger hardware or software package.
ARTICLE 19 – MISCELLANEOUS
The failure, in a particular case, of iXblue to exercise or enforce any right, remedy or provision contained in the Order shall not constitute a waiver and shall not prevent iXblue from subsequently exercising any rights.
Customer shall hold confidential and shall not use, disclose or permit others to use any confidential information identified as such in writing or orally by iXblue or information which the Customer knows or ought to reasonably know is confidential, proprietary or trade secret information of iXblue, including, without limitation, trade secrets embodied in the goods or the related services.
The Order shall not be assigned or otherwise transferred by the Customer (by operation of law or otherwise) without the prior written consent of iXblue.
In the event that any of the terms of the Order, become or are declared to be invalid, the parties shall remain bound by the other provisions and shall meet as soon as possible to remedy to the said invalid clauses in the same vein as when drafting the Order. All the other terms no affected shall remain in full force and effect.
19.5. Entire agreement
The Order constitutes the entire agreement between the parties hereto concerning the subject matter of the Order, apart from existing non-disclosure agreements, and there are no understandings, agreements, representations, conditions, warranties, or other terms, express or implied, which are not specified herein. The Order may only be modified through amendment signed by