ARTICLE 1 : GENERAL
Any order implies the acceptance of the general terms as stated below and, possibly, the special terms as defined at the time of ordering. The proposals are valid with limitation of the optional period-time which -unless otherwise mentioned- is for one month from receipt date of said proposals.
ARTICLE 2 : ORDER
Any agreement consists exclusively of these Terms of Sale and Seller’s quotation for a particular product, quantity, and price (a “Quotation”), and may not be modified except by a writing signed by the Seller. In the event of a conflict between these Terms of Sale and a Quotation, then the terms of the Quotation shall control. Buyer has reviewed product information and literature related to the Product (“Product Information”). All items delivered under this Agreement shall be deemed as accepted unless Buyer notifies Seller within ten (10) days of delivery.
ARTICLE 3 : ORDER CANCELLATION OR REDUCTION
All cancellation notifications or stop-work requests must be received in writing not less than 60 days before the scheduled ship date and may be refused or accepted by Aryballe at its sole discretion, and if accepted, all canceled products may be subject to restocking/handling fee. All sales of special-order products are sold on a final, non-cancellable, non-returnable, non-refundable basis.
ARTICLE 4 : PRICE
The prices mentioned are based on the economic terms and Seller’s rates in force. Any taxes, fees or other assessments or expenses shall be paid by the Buyer. All shipping and transportation charges will be paid directly by the Buyer. In the event that the Seller pays any such taxes, fees or assessments, then they shall be invoiced to the Buyer.
ARTICLE 5 : AVAILABILITY
All delivery or shipment dates are on a reasonable effort basis only and Seller shall not be liable for any delay in delivery. Seller shall make good faith efforts to give Buyer notice of any delay in delivery (before or after the scheduled delivery date), advising of the new anticipated shipping or delivery date. Buyer shall accept shipment or delivery at the time provided in the notice. Buyer understands Product availability is a function of constantly changing market and manufacturing conditions, Seller cannot guarantee availability. At any time when Seller does not have sufficient capacity to fill all customer orders on a timely basis, Seller may at its sole discretion allocate production and delivery among Seller’s customers.
ARTICLE 6 : DELIVERY
All Aryballe products are sold as Ex Works. No claim could be set against the Seller, the customs broker or the forwarder for the losses or the damages of the goods if a survey report-being the indisputable voucher and force of law – has not been sent to the forwarder or the customs broker within a maximum 2-days’ time limit and formally notified to the Seller within same deadline. The accessibility and the fitting of the premises where the heavy and bulky goods are to be received to, are to be foreseen in due time by the Buyer; in no case, the Seller will have to deal with that matter. Our prices are meant ex-works, carriage and packing to be charged at inclusive rate except any prior special agreement.
ARTICLE 7 : RETURN OF GOODS
No goods may be returned without prior agreement of the Seller. The return involves only the material that suffered no modification and/or alteration and is in the original packaging from the Seller. The Buyer is responsible for shipping expenses and possible restocking fees. Seller’s sole obligation to Buyer shall be limited to replacing or repairing, at its option, any nonconforming Product that has been properly returned to Seller.
ARTICLE 8 : RESERVE OF PROPERTIES INTELLECTUAL PROPERTIES AND RIGHT OF USE
The sale of Product by Seller to Buyer does not convey any license (either expressly or by implication) to any of Seller’s intellectual property, or proprietary rights. Seller expressly reserves all patent, trademark, and proprietary rights.
After purchasing products included on the Quotation, Aryballe provides a one-year (12 month) software license to the Buyer starting from delivery date. Aryballe retains sole ownership of all intellectual property rights over its product, software, and odor signatures captured using Aryballe products. These Terms of Sale do not transfer any intellectual property rights to the Buyer, thus the Buyer agrees not to use Aryballe products, software, and / or odor signatures in a manner which would prejudice the rights of Aryballe and that such use does not constitute an infringement or unfair or abusive competition.
All odor signatures generated by Aryballe sensors and products are property of Aryballe. Nevertheless, each signature which belongs to proprietary Buyer’s product will be only accessible to Buyer and Aryballe algorithms and Aryballe Algorithms engineering experts. All odor signatures from product in the public domain or in available for sale in public catalogs can be used by Aryballe without any restrictions.
ARTICLE 9 : PAYMENT TERMS
Unless otherwise agreed in writing, the payment terms shall be Net 30 days from the date of invoice. The bank draft submitted to acceptance and the acceptance papers must be made or returned within the time limit required per the Trade Code.
Unpaid amounts not paid within thirty days after the due date shall be subject to a interest charge fixed to a rate reset to the month, corresponding to the bank basis rate in force at the time the delay is noticed, overvalued by 300% (article 441-6, related to law of the French Trade Code of August 4th 2008), apart from the collection charges. This stipulation being formally and irrevocably agreed between both parties, no prior summon will be needed per express derogation to the articles 1146 and 1153 of the Civil Code. Should Aryballe grant a postponement of the due date, there would not be novation of debt. In case of lack of payment of a single remittance (or against a single bank draft at mature date) the total amounts owed by the Buyer to the Seller will have to be paid at once. The sale will only become perfect and transferable for property at the time of complete settlement of the invoices. Seller reserves the right to withdraw or modify the terms of any credit extended to Buyer. In the event of a default in payment of any amounts due to Seller, Buyer agrees to pay Seller’s attorney’s fees and expenses incurred by Seller in enforcing payment thereof.
ARTICLE 12 : Warranty
Seller warrants delivered goods are free from defects in materials and workmanship and that Product will meet Seller’s published specifications on the date of shipment.
The Seller provides no guarantee against any defect or failure to perform resulting from misapplication, improper installation, improper operation, operation under inappropriate environmental conditions (including operation outside of any temperature range that is specified by the Seller) abuse or contamination, and Seller shall have no liability of any kind for failure related thereto.
Seller’s sole obligation to Buyer shall be limited to replacing or repairing, at its option, any nonconforming Product that has been properly returned to Seller by Buyer. This does not cover the replacement parts or repairs which will be a result of a normal wear off the appliances; of alterations or accidents due to the carelessness; of failure of supervision, maintenance or warehousing of non-proper handling or use per the Seller or supplier’s specifications. The guarantee will not apply when a repair or any operation by an external people of the Seller’s support team are performed.
The Seller will have no obligation to replace, repair or give credit for any Product that is employed in a manner that Seller, in its sole discretion, determines is nonconforming.
Each of Buyer and Seller agree that in no event shall Seller be liable for any lost profits or any special, incidental, consequential or indirect damages, and that Seller’s aggregate liability in damages shall in no event exceed the amount received by Seller for Product as set forth in the Quotation in which any defective Product was included. Buyer agrees that Seller will have no liability of any kind for failure of any equipment or other items into which Product is incorporated, and that Buyer will indemnify Seller for any and all claims against the Seller related to any use by Buyer, and/or any device into which Buyer incorporates Product.
Buyer understands that these terms comprise material elements of this agreement, and that they are fundamentally part of Seller’s willingness to provide Product to Buyer.
Buyer bears full responsibility for making its own determination as to the suitability of the purchased Product, both commercially qualified and engineering samples, recommendations or advice for its own particular use. Seller makes no warranty or guarantee, express or implied, as to results obtained in end-use, nor of any design incorporating Product, recommendation or advice. Buyer must identify and perform all tests and analyses necessary to assure that its finished application-incorporating Product will be safe and suitable for use under end-use conditions.
THE FOREGOING WARRANTY PROVISIONS ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 13 : EXPORT CONTROL
Buyer acknowledges that the Product may be subject to export restrictions. Due to the rules in force, the purchaser expressly undertakes to obtain the written Seller’s agreement and authorities’ agreement as well, prior to exporting or re-exporting the goods out of the territory of France. Seller shall not be liable for any expenses or damages resulting from failure to obtain the appropriate authorizations or attempting to comply with applicable law.
ARTICLE 14 : COURT OF LAW
In case of clam of all or of part of the present terms of sale, as well as of those which could occur from the handling of any order, one should refer to the court of law of Trade Court of Grenoble, France.
ARTICLE 15 :: MISCELLANEOUS
The invalidity or unenforceability, whether in whole or in part, of any provision herein shall not affect the validity or enforceability of any other provision herein. Failure or delay on the part of either party to exercise any right, power, privilege or remedy herein shall not constitute a waiver thereof. The section headings are for convenience only and are not to be used in the construction or interpretation of this Agreement.