1- GENERAL:
ALPAO SAS is here called ALPAO. The terms and conditions may not be modified or cancelled without ALPAO’s written agreement.
Accordingly goods furnished and services rendered by ALPAO are sold only on the terms and conditions stated herein, notwithstanding
contrary or additional terms and conditions in any purchase order, schedule, acknowledgement, or any other form or document issued by
either party effecting the purchase and/or sale. All such additional or contrary terms and conditions are not accepted by ALPAO, unless
expressly accepted in writing with specific reference to any such contrary provision after receipt of such form or document.
2. PRICES:
a. The prices and their applicable period will be as specified on the ALPAO’s quote. If no period is specified, quoted prices will be applicable
for thirty (30) days.
b. The prices are given on DAP basis, in accordance with “Incoterms 2010″, ICC version. prices are exclusive of taxes, impositions and other
charges including use, excise, value added and similar taxes or charges imposed by any government authority, international shipping
charges, forwarding agent’s and broker’s fees, bank fees, consular fees, document fees, import duties, and delivery cost. The prices include
the cost of packing.
c. ALPAO reserves the right to increase the price of the goods or services sold in proportion of any increase of costs between the date of
acceptance of order and the date of delivery (including but not by way of limitation those relating to: exchange rates, labor, materials,
carriage, taxes, …) or when the increase is due to any act or default of the buyer. ALPAO shall not be responsible for any increase in the
price of goods or services sold between the date of acceptance of an order and delivery: (i) due to changes in exchange rates between the
Euro and the currency of the contract adverse to ALPAO; or (ii) due to increases in cost beyond the control of ALPAO, including without
limitation hereby increased taxes, duties or transportation costs.
3. ACCEPTANCE AND CANCELLATION OF ORDERS:
All orders are subject to acceptance by ALPAO in writing by a duly authorized agent of ALPAO, accepted at its principal office in France. Any
written acknowledgement of receipt of an order shall not, in and of itself, constitute such acceptance. Orders accepted by ALPAO may be
cancelled by the customer upon written consent of ALPAO and provided such order is not “NC/NR” or “Non-Cancelable/Non-Returnable”
(“Non-Standard Products”) or governed by a Purchase Agreement Letter. Non-standard products are defined as products which are special
orders, custom orders, orders for non-standard products / products not customarily in stock, or orders for value-added products. Non
standard products are non-cancelable and non-refundable. In the event of cancellation or other withdrawal of an order for any reason and
without limiting any other remedy which ALPAO may have as a result of such cancellation or other withdrawal, reasonable cancellation or
restocking charges, which shall include all expenses than incurred and commitments made by ALPAO, shall be paid by the customer to
ALPAO. The customer requests to reschedule are subject to acceptance by ALPAO in its sole discretion. Orders may not be canceled or
rescheduled after the goods have been delivered by ALPAO to the shipment carrier.
4. PAYMENT:
a. Unless otherwise agreed, all payments shall be made in France through an Irrevocable Letter of Credit confirmed by a clearing bank, to
be established in favor of ALPAO, and having an initial validity equal to the delivery period plus one month. This Letter of Credit shall permit
part shipment and provide for the release of 100 % of the contract value of each shipment.
b. No cash or other discount will be allowed unless specified.
c. Unless otherwise agreed, all payments shall be made in EUROS.
d. The failure to make payment at the due date shall result in the penalty provided under Article L441-6 of the French commercial law
“Code de Commerce” at a rate of the legal rate in force (defined by the European Central Bank) plus 10% plus a fixed penalty of 50 euros.
5. WARRANTY:
a. ALPAO WARRANTS THAT THE GOODS WILL BE FREE OF DEFECTS IN WORKMANSHIP AND MATERIALS AND SUBSTANTIALLY CONFORM TO
THE SPECIFICATIONS PURSUANT TO WHICH THE GOODS WERE MANUFACTURED. IN THE EVENT OF ANY SUCH DEFECT, AT ALPAO’S SOLE
DISCRETION, ALPAO MAY ELECT TO REPAIR OR REPLACE ANY SUCH DEFECTIVE GOODS, AT ALPAO’S EXPENSE. THE BUYER SHALL HAVE NO
OTHER REMEDY, EXCEPT REIMBURSEMENT OF THE PURCHASE PRICE IF ALPAO CANNOT OR WILL NOT REPAIR OR REPLACE THE DEFECTIVE
GOODS IN A TIMELY MANNER. ALPAO SHALL NOT BE LIABLE FOR CONSEQUENTIAL PUNITIVE DAMAGES, OR ANY OTHER DAMAGES OR LOSS
SUFFERED BY BUYER ARISING FROM ANY DEFECT IN WORKMANSHIP OR MATERIAL.
b. ALPAO MAKES NO WARRANTIES, EXPRESS OR IMPLIED, THAT THE GOODS ARE MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE.
BUYER ACKNOWLEDGES THAT IT HAS FORMED ITS OWN OPINION AS TO THE SUITABILITY AND FITNESS OF THE GOODS FOR ITS INTENDED
PURPOSE.
c. ALPAO warrants that if any of the goods are found to be defective as a result of faulty design, materials or workmanship within 12
(twelve) months after delivery, and the defects are promptly notified to ALPAO, and if requested the defective goods are returned to ALPAO it
will either credit the Buyer with the price of the goods, or at its discretion repair or replace the goods (subject to the following provisions of
this clause). The warranty in respect of repaired or replaced goods shall terminate at the end of the original warranty period, unless written
consent of ALPAO is provided. If goods are found not to be defective or if any defect is attributable to the Buyer’s design or materials, or use
not consistent with ALPAO’s specifications, they will be returned to the Buyer at the Buyer’s expense, and a testing charge of up to 15 % of
the original invoice price will be made.
d. In case of goods not manufactured by ALPAO, the liability of ALPAO will be limited to either the refund of the purchase price paid by the
customer for such products (without interest), or replacement of such products.
e The warranty shall not apply if the goods have been modified or repaired other than by ALPAO, or if they have not been operated, stored
and maintained as recommended by ALPAO, or if the defect arises because of the fitting of the goods to equipment not recommended by
ALPAO, or in case of normal wear.
f. Because of the varied uses and applications to which Buyers put goods sold by ALPAO, all liability of ALPAO for any consequential injury,
loss or damage (including loss of profit) suffered by the Buyer arising in any way whatever from the goods, is hereby excluded (save as
expressly agreed in writing or as mandatorily implied by law). Accordingly, the Buyer must arrange his own insurance.Goods sold by ALPAO
are high technology products intended to be used only by professionals having a substantial experience in such technology. The selection of
goods by the Buyer is made under its sole liability and ALPAO denies any warranty related to the adequacy or performances of its products
with the use intended by Buyer.
g. The warranty shall not apply for the prototypes manufactured for technical validations, or for repaired materials not manufactured by ALPAO.
6. RETURN OF GOODS:
a. Except under the warranty contained in paragraph 5, no return is accepted without ALPAO’s written agreement.
b. If ALPAO agrees to accept returns other than under the warranty contained in paragraph 5, they must be returned at the Buyer’s expense
in original condition.
7. UNEXPECTED EVENTS – FORCE MAJEURE:
ALPAO will not be liable for delays in delivery or for failure to perform its obligations due to causes beyond its reasonable control, including,
but not limited to, product allocations, material shortages, labor disputes, transportation delays, unforeseen circumstances, acts or omission
of other parties, acts or omission of civil or military authorities, Government priorities, fire, strikes, floods, severe weather conditions,
computer interruptions, terrorism, epidemics, quarantine restrictions, riots, or war. ALPAO’s time for delivery or performance will be extended
by the period of such delay, or ALPAO may, at its option, cancel any order or remaining part thereof without liability by giving notice to
customer.
8. DELIVERY:
a. Any delivery period quoted is an estimate only and commences from ALPAO’s acknowledgement of the Buyer’s order. Provided that
ALPAO takes all reasonable steps to deliver the goods at the time stated, ALPAO shall be under no liability for failure to do so. ALPAO
excludes liability for consequential loss or damage suffered by the Buyer as a result of late delivery of goods for any causes whatever.
b. ALPAO reserves the right to deliver in more than one consignment and to invoice each consignment separately.
c. Delay in delivery or other default in respect of any installment of any one or more types of goods shall not relieve the Buyer of its
obligation to accept and pay for the remaining deliveries.
d. Goods will be packed to ALPAO’s normal specification in non-returnable packing unless the Buyer specifies otherwise and the Buyer will
be charged accordingly.
e. No claim for loss or damage in transit will be accepted by ALPAO unless notice in writing is given to the carrier concerned (if any) and
ALPAO, within seven days of delivery in the case of damage, or within ten days of the date of ALPAO’s invoice, in the case of loss. Only
claims pertaining to improper packing or packaging will be reviewed.
f. Delivery and carriage terms are as stated in the quotation or as subsequently amended by ALPAO acknowledgement of the Buyer order.
9. TRANSFER OF TITLE AND RISK:
a. In the event of non-payment by the Buyer for documents complying with the conditions of this sale, ALPAO may give him formal notice to
effect payment within 30 (thirty) days; title to each material and equipment supplied under any contract hereunder shall not pass to Buyer
until payment in full for the material and equipment has been made; if payment is not made within that period ALPAO may freely dispose of
goods and declaring the Buyer to be in default, may ask for the terms of the close-out of this contract to be fixed by means of law (with any
price difference, penalty, and interest to be borne by Buyer).
b. Risk on the goods shall be in accordance with the delivery and carriage terms stated in ALPAO acknowledgement of the buyer’s order. In
the event that such terms shall not determine the moment at which the risk shall pass, it shall pass when the goods leave the ALPAO’s
premises.
10. DESCRIPTION AND DATA:
Goods will be supplied substantially as described but where ALPAO is the manufacturer, the right is reserved to make design changes which,
however, will not lower the performance of the goods, affect their mechanical interchangeability, or increase their price. When ALPAO is not
the manufacturer, goods will be those supplied to the manufacturer’s current standard. Specification and finish provided that any change
does not lower the performance of the goods, affect their mechanical interchangeability, or increase their price.
11. HEALTH AND SAFETY WORK:
a. The Buyer undertakes that it will comply and will procure that its employees, customers, and every other persons working with, on, or
near, or using the goods comply in full with the instructions and recommendations made in any Manual or handbook provided by ALPAO or
the manufacturer of the goods, and that they will comply with all other instructions given in connection with the use or operation of the
goods.
b. GOODS ARE INTENDED FOR COMMERCIAL USE ONLY. ALPAO DOES NOT CONDUCT ANY SAFETY TESTING OF ANY PRODUCTS THAT IT
SELLS. SUCH PRODUCTS ARE NOT DESIGNED, INTENDED, OR AUTHORIZED FOR USE IN LIFE SUPPORT, LIFE SUSTAINING, HUMAN
IMPLANTABLE, NUCLEAR FACILITIES, FLIGHT CONTROL SYSTEMS, OR OTHER APPLICATIONS IN WHICH THE FAILURE OF SUCH PRODUCTS
COULD RESULT IN PERSONAL INJURY, LOSS OF LIFE, OR CATASTROPHIC PROPERTY DAMAGE. IF THE BUYER USES OR SELLS THE GOODS FOR
USE IN ANY SUCH APPLICATIONS, BUYER ACKNOWLEDGES THAT SUCH USE OR SALE IS AT BUYER’S SOLE RISK; BUYER AGREES THAT ALPAO
AND THE MANUFACTURER OF THE GOODS ARE NOT LIABLE, IN WHOLE OR IN PART, FOR ANY CLAIM OR DAMAGE ARISING FROM SUCH USE;
AND BUYER AGREES TO INDEMNIFY, DEFEND, AND HOLD ALPAO AND THE MANUFACTURER OF THE GOODS HARMLESS FROM AND AGAINST
ANY AND ALL CLAIMS, DAMAGES, LOSSES, COSTS, EXPENSES, AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH SUCH USE OR
SALE.
c. Recycling and end of life for electric and electronic equipment waste (EEEW)
In compliance with the provisions of the French Environmental Code on Electric and Electronic Waste for industry, (article R543-195 et seq of the French Environmental Code), ALPAO adheres to ECOSYSTEM, an organism approved by the public authorities, under the conditions set forth in article R543-197 of the French Environmental Code. ALPAO, in application of article L.541-10-13 of the French Environmental Code, is registered in the Register of the EEE sector producers, under the registration number FR386752_05HACN
ALPAO thus guarantees its clients the right to access to the collection and recycling processes offered by ECOSYSTEM for all electric and electronic waste from industry that it provides to the market:
– for less than 500 kg (and 2.5m³), the EEEW may be deposited at no additional cost, by appointment, at the ECOSYSTEM collection centers;
– for more than 500 kg (or 2.5m³), free removal from the site can be scheduled by appointment.
Such waste will be decontaminated and recycled in a high-quality environmental performance process.
12. STORAGE:
When delivery is delayed for reasons attributable to the Buyer, or its agent, storage and other additional costs will be charged to the Buyer
and goods will be at the Buyer’s risk from the date that ALPAO notifies the Buyer that the goods are available for delivery. ALPAO reserve the
right to invoice the goods at the original delivery date which shall be the warranty starting date.
13. INTELLECTUAL PROPERTY:
a. The sale of goodsand the publication of any information or technical data relating thereto does not imply freedom from patent, registered
or unregistered design right, copyright, or any other intellectual property right whatsoever, in respect of any particular application of the
goods.
b. The Buyer warrants that the designs and specifications supplied by it to ALPAO will not involve the infringement of any patent, registered
or unregistered design right, copyright, or any other intellectual property right whatsoever, in the manufacture and sale of the goods by
ALPAO.
c. The Buyer undertakes to indemnify and keep indemnified ALPAO against all royalties, claims, actions, demands, proceedings, losses and
costs in connection with any Infringement or alleged infringement of any patent, or unregistered design right, copyright, or any other
intellectual property right whatsoever, in the manufacture, sale or application of the goods arising out or in connection with the matters
describe in paragraph 13a and/or 13b above.
14. TOOLS AND OTHER MANUFACTURING EQUIPMENT:
Tools and other manufacturing equipment made for the manufacture of goods to be supplied under the contract remain ALPAO’s property
notwithstanding that the Buyer may have been debited with any sum in respect of their cost. Any intellectual property right whether or not
registered in the tools and/or other manufacturing equipment and/or any drawings, sketches, plans, specifications or tables of data of the said tools or other manufacturing equipment, remains the property of ALPAO.
15. ORIGIN OF GOODS:
ALPAO makes no representation and gives no warranty in respect of the sources or origin of manufacture or production of the goods or any
part thereof.
16. DOCUMENTS:
ALPAO will supply one invoice and one packing note with copies as required for each consignment of goods notwithstanding that the
consignment may comprise more than one package.
17. TERMINATION:
If the Buyer commits any breach of the terms and conditions of the contract, or suffers distress or execution, or becomes insolvent, or
commits an act of bankruptcy, or enter into any arrangement or composition with its creditors or goes, or is put into liquidation (other than
solely for amalgamation or reconstruction while solvent), or if a receiver is appointed over any part of the Buyer’s business, ALPAO may,
without any prejudice to any rights which may have accrued or which may accrue to it, terminate the contract summarily by notice in writing,
stop any goods in transit, and repossess any goods for which the Buyer has not paid.
18. LAW AND DISPUTE RESOLUTION:
The contract and all disputes arising from the subject matter of the contract or these terms and conditions shall be governed and decided by
French law. In the event of any dispute between the parties, both parties agree to notify one another in writing of the issues(s) in dispute,
and within ten (10) days thereafter undertake good faith efforts to resolve the dispute. In the event of failure to resolve within fifteen (15)
days of written notice being delivered to a party, either ALPAO or the Buyer may initiate a request for fast track arbitration before a single
arbitrator with requisite technical knowledge, dispute resolution experience, and English language fluency, pursuant to the fast track rules
and under the auspices of the International Chamber of Commerce, sitting in Grenoble, France. Both parties waive all rights to bring a cause
of action or otherwise pursue a claim in a court of law, either in France or the United States, and agree that the decision of the sole arbitrator
shall be final and binding upon the parties, with the sole exception, as follows: in the event that ALPAO has delivered goods to the Buyer and
the Buyer has failed to pay for said Goods by the time said payment is due, ALPAO, at its sole discretion, shall have the right to bring an
action in an appropriate state or federal court, in the State where the Buyer either is domiciled or has a principal place of business, solely to
collect monies owing and due.
19. SEVERANCE:
These conditions shall apply so far they shall be held to be lawful or enforceable. If any condition or part of a condition shall be held to be
unlawful or unenforceable, these conditions shall be read as if such condition or part were omitted.
20. CONSUMER SALES:
Notwithstanding the provisions of paragraph 5 hereof, nothing in these conditions shall limit the statutory rights of a Buyer dealing as a
consumer as defined by the Consumer Transactions (restrictions on statements) Order 1976 (as amended).
21. EXPORT BY THE BUYER:
The goods purchased may not subsequently be exported except under the authority of an export license obtain by the Buyer.
22. EXPORT AND IMPORT LICENSES:
The Buyer shall obtain all import license and other necessary authorizations required for the import of the goods into the country of
destination and shall pay all customs and import duties levied on the goods outside of France. Failure to obtain any license or authorization
shall not relieve the Buyer of its responsibility of paying for the goods. The contract is conditional on ALPAO obtaining any necessary export
licenses for the goods, and if ALPAO is unable to obtain such license, it may cancel the contract.
23. CANCELLATION:
In the event the obligations of one of the Parties don’t comply with articles referred to hereunder, the contract shall be, if required by the
creditor of the said obligations, cancelled by giving notice to such termination to the debtor of the obligations within 30 (thirty) days. Such
notice shall serve to discharge the Parties hereto from their mutual obligations and responsibilities under this agreement with respect to such
products. Cancellation of the contract shall be effective 30 (thirty) days within the creditor’s inefficient notice.
24. LANGUAGE — NOTICES
It is hereby agreed that the parties specifically require that this agreement and any notices, consents, authorizations, communications, and
approvals be drawn up in the English language. Any and all notices from one party to the other shall be in.