General Terms and Conditions of Service
1. Applicability
1.1 These general terms and conditions – hereinafter called the GTC – apply to the services provided by EXOES. The fact that EXOES does not invoke one or another of the present terms and conditions of sale at a given moment may not be interpreted as constituting renunciation of the possibility to later invoke any of the said terms and conditions.
1.2 Client’s terms and conditions contrary to or Client’s terms and conditions differing from the GTC are not recognized by EXOES, unless EXOES has expressly agreed to their applicability in writing. General terms and conditions of the Client shall also not become part of the contract, if EXOES has provided the services to the Client without any reservation and being aware of contrary Client’s terms and conditions or Client terms and conditions differing from the GTC.
1.3 The information about the products and services included in EXOES products catalogs and services, and more generally in any advertising and promotional material, shall be of an indicative character and consequently shall not commit EXOES who therefore retains the ability to change all or part of the items and elements featured therein.
2. Offer and Formation of Contract
2.1 Contracts regarding the provision of services by EXOES (offer and acceptance) shall be in writing. Changes or additions to the aforementioned contracts shall require an agreement signed by EXOES and the Client. Any explanations of needs, claims or notices communicated by the Client to EXOES shall also be in writing. Statements made orally by an agent or other auxiliary person of EXOES shall require the written agreement of EXOES to become effective.
2.2 If the Client does not accept an offer of EXOES within a period of two (2) months of the issuance of the offer, EXOES shall be entitled to revoke the offer.
2.3 The acceptance of the offer by the Client shall include all essential information required by EXOES, particularly the references of the offer, the offer date, the place of performance of the services, the price separately showing the taxes applicable (notably VAT), the payment schedule of the services and the payment securities that could be required by EXOES depending on the client’s situation.
3. Provision of Services
3.1 EXOES provides its services conforming with all applicable statutory requirements of the European Union. No warranty is made for the compliance with any law, standard, regulation or any condition imposed by a foreign authority not communicated in writing to EXOES and confirmed by EXOES prior to the formation of the contract. All documentation for work rendered pursuant to the contract will be made according to the existing general practice for comparable services and will be subject to Client supervision and final validation.
3.2 The Client acknowledges that any technical targets of the Client included in the scope of the services agreed with EXOES is conditioned by: - the relevance of the information and data communicated by the Client to EXOES and, if any, by any systems or components supplied by the Client; - the fact that the technical specifications suggested by EXOES are made within the limits of state of the art in EXOES’s activity.
3.3 The commitment of EXOES is to carry out the services with due care on a best efforts basis, to the exclusion to any obligation of results. EXOES performs the services with the skill and care ordinarily used by qualified professionals performing the same type of services at the same time under similar conditions. No warranty regarding effectiveness of the results of the services is also given by EXOES.
4. Delivery Date, Late Delivery and Place of Performance 4.1 The delivery dates and time periods for the provision of services indicated by EXOES are provided as an indication only. Subject to Section 4.3 below in case of intent or gross negligence, if a delivery date or a time period is exceeded, this may not result in any damages and interest for the Client, any retention or any order cancellation.
4.2 If the Client has to provide EXOES with furnished items, assistance, data and information, including but not limited to, documents or materials, authorizations, clarification of technical requirements or other information or any form of payment with a delay, the delivery dates and required time periods agreed for the provision of services and the performance of the services, even indicative, shall be automatically postponed in accordance with the delay.
4.3 The Client shall only be entitled to further rights and claims, particularly damages, in accordance with the limitation provided for in article 12, if EXOES, its legal representatives or auxiliary persons have caused a delay through gross negligence or willful misconduct.
4.4 The place of performance for services is the place of performance mentioned in the offer of EXOES and accepted by the Client. If no place of performance is specified and if the place of performance cannot be inferred from the nature of the contract, the place of performance is the place of business of EXOES mentioned in the offer of EXOES.
5. Prices and Terms of Payment
5.1 All prices of EXOES are in Euro and exclude the currently legally required amount of tax on services or VAT. Additionally, this currently legally required amount of tax on services or VAT shall be paid by the Client.
5.2 The prices quoted do not include unforeseen and unplanned charges due to delays or additional work caused by the Client or unexpected effect(s) of revisions of the services requested by Client and agreed by EXOES.
5.3 The payment schedule for the services agreed is set forth in the EXOES’ offer and confirmed in the acceptance of the client.
5.4 The Client shall pay EXOES invoices at the agreed payment dates, un and at the latest thirty (30) days upon the date of issuance of EXOES invoices.
5.5 Payment shall be made by the client to the following bank account or to any other bank account designated by EXOES: Account Holder Name: EXOES Account Number: See invoice Address of the Bank: 6 AVENUE DE LA GRANDE LANDE, ZA BERSOL, F-33170 GRADIGNAN
5.6 No discount is granted for early payment.
5.7 If the Client fails to make any payment that is undisputed in accordance with these terms and conditions, EXOES may, in its sole discretion and without incurring any liability therefore, give written notice of breach, and ten (10) days after sending such notice, discontinue the performance of the services to the Client, cancel an order or orders, require the Client to give such security as EXOES may specify to insure payment or require payment in advance.
5.8 Any undisputed amount not settled on the due date automatically gives rise to the application of: - penalties for late payment calculated on the basis of outstanding sums at a rate equivalent to three times the French legal interest rate currently in force (0,04 % per year for civil year 2014). These penalties accrue from the day following the date of settlement indicated on the invoice until full payment thereof. - a lump sum compensation equal to the amount of €40 per unpaid invoice for collection costs. When the collection costs incurred by EXOES are greater than the amount of this lump sum compensation, EXOES shall be entitled to obtain additional compensation against the relative vouching documents. Consequently, In the event that any dispute results in legal proceedings, the non-prevailing party shall pay all expenses and costs of such proceedings, including reasonable attorney's fees.
5.9 In connection with any agreed changes to the scope of services contained in this Agreement, the parties shall agree on an appropriate adjustment to the prices and delivery dates of the revised services. EXOES will notify the Client of these changes in prices and delivery dates. EXOES reserves also the right to increase the price of the services accordingly if cost increases arise due to a statutory requirement being placed upon the engineering performance or due to price increases as a result of currency fluctuations or increase of the cost of raw material. EXOES shall provide evidence of these changes to the Client at its request.
6. Confidentiality and Secrecy
6.1 Confidential Information in accordance with these General Terms and Conditions shall include notably – and without limitation – all technical, commercial and other information, data, know-how, drawings, inventions and documents which are not in the public domain or proprietary and which the Client or EXOES has received from the other party.
6.2 The Client and EXOES are obliged to keep Confidential Information secret and confidential for the length of and after the completion or termination of the contractual relationship with the other party respectively, to make it inaccessible to third parties and protect it in a suitable way from the access of third parties. Furthermore, Confidential Information shall only be used for the purpose of the contract and only be accessible to employees which require access to and knowledge of this Confidential Information to complete their obligations under the contract and who have been obliged to keep the same confidentiality and secrecy as required in this Article 6.
6.3 The party bringing the Confidential Information into the contractual relationship retains absolute title in this Confidential Information at all times. Confidential Information shall only be reproduced in relation to the requirements of providing the services and in accordance with copyright regulations.
6.4 The confidentiality and secrecy obligations mentioned above shall not apply to information which is in the public domain or is coming into the public domain by another source or is already known by the Client or EXOES before notification by the other party respectively or which has been created autonomously by the Client or EXOES or has been acquired in any other legal way.
7. Intellectual Property Rights, Rights of Use
7.1 EXOES reserves the right of ownership of its intellectual property rights and corresponding exploitation rights or results in all technical documents and commercial information of EXOES, in solution approaches in proposals and in any other documents of EXOES, in any software or computer programs, pilots which are included in any products blended by EXOES, as well as all manufactured models, drawings, devices, goods, materials such as simulation bench, components or system, and in other documents which are created and/or used by EXOES for the performance of the services - without restrictions, hereinafter referred to as “Intellectual Property”. Any contract concluded for engineering services by EXOES shall not be deemed as providing any rights on EXOES’ Intellectual Property to the Client. In addition, the Intellectual Property shall not be made available by the Client to third parties.
7.2 EXOES has no obligation to grant to the Client any right of use of the Intellectual Property resulting from the performance of the services, contained or not contained in the documentation and any agreed deliverables communicated to the Client in respect with the performance of the services.
7.3 EXOES does not assume any liability for the infringement of Intellectual Property rights of third parties which occurs due to EXOES receiving from the Client technical specifications, information, instructions, drawings or any other documents or information by way of items, assistance or information provided by the Client and using them in the provision of services. EXOES does not assume any liability for the infringement of any Intellectual Property rights or other rights of third parties granted or filed for (hereinafter referred to as 'Rights of Third Parties') which occurs due to EXOES receiving from the Client technical specifications, information, instructions, drawings or any other documents or information by way of items, assistance or information provided by the Client and using them in the provision of services. In this case, the Client shall fully indemnify EXOES and shall pay, on first request, all costs, expenses and damages EXOES is suffering as a result of the infringement of Rights of Third Parties.
8. Provision of Client Furnished Items, Information and Documents, Provision of EXOES Furnished Items, Information and Documents
8.1 All Client furnished items, information and documents or EXOES furnished items, information and documents of every description provided to the other party respectively shall remain the property of the party furnishing the items, information and documents respectively.
8.2 The Client and EXOES are obliged to return all items, information and documents provided by the other party respectively in their possession in its entirety and in proper condition at the end of the contractual relationship.
9. Force Majeure
9.1 Neither Party shall be liable for a default of any obligation under this Agreement, if such default results from a force majeure, which includes, without limitation, governmental acts or directives, strikes, acts of God, war, insurrection, riot or civil commotion, fires, flooding or water damage, explosions, embargoes, or delays in delivery, whether of the kind herein enumerated or otherwise, which are not within the reasonable control of the Party affected. The foregoing shall not be construed as a waiver of either Party’s obligations under this Agreement, and as soon as such condition shall cease, the Party affected shall promptly fulfill its obligations provided, however, that if a Party is unable to perform in any material respect any of its material obligations under this Agreement for a period of [90] days due to a event of force majeure the other Party may terminate the Agreement.
9.2 The party affected by the disruption due to Force Majeure shall notify the other party in writing without any delay.
9.3 EXOES can withdraw from the contract concerned in case the end of such a disruption due to Force Majeure continues for more than two months or its end is not foreseeable.
10. Fulfillment of the contract – limitation of warranty
10.1 The contract is deemed fulfilled upon one or both of the following events, depending on the scope of the services:
a) the delivery of EXOES’ products or services as defined in the Offer as well as the documentation containing the agreed deliverables,
b) Performance of a formal acceptance test conducted by the parties.
10.2 In case of fulfillment of the contract, by delivery of the reports and documentation containing the agreed deliverables according to article 10.1 a), the Client shall examine the said reports and documentation provided under the contract upon receipt and shall notify EXOES in writing of any nonconformity within ten (10) calendar days (“the acceptance period”). Unless this duty of examination and immediate written notification are made in due time by the Client, the services will be deemed to comply with the agreed specifications at the term of the acceptance period.
10.3 In case of nonconformity of services (including incomplete or incorrect documentation) notified in due time by the Client, and accepted by EXOES, EXOES will either repair such deficiencies (complete or correct documentation) or replace deficient goods or materials with new ones or compensate the Client for any damages incurred limited to the total amount of the services provided by EXOES to the Client and in any event in the limit of the maximum insurance coverage of EXOES for such nonconformity. The foregoing limitation on damages shall not apply where the nonconformity of services is caused by the grossly negligent or intentional conduct of EXOES.
10.4 The Client is informed that the materials, devices and, more generally, components which are part of the EXOES products are exclusively subject to the warranty provided by the manufacturer of the said materials, devices and components which are communicated by EXOES on the Client’s first demand, to the exclusion of any complementary warranty granted by EXOES.
11. Title Retention
11.1 EXOES shall retain the title in items to be delivered as part of providing the services or supplying the services (items subject to title retention such as reports, materials furnished by EXOES, prototype) until the item has been fully paid for or a claim made in connection with the item has otherwise been settled.
11.2 The Client shall notify EXOES without any delay about measures of debt enforcement by third parties regarding the items subject to title retention and provide all necessary documents for an intervention. Independently of the aforementioned, the Client shall advise the third party in advance of the existing rights in the items. The costs of the intervention shall be borne by the Client.
12. Limitation of Liability
Except with respect to damages caused by grossly negligent or intentional conduct of EXOES, in the event of a breach by EXOES of its obligations hereunder, recognized by EXOES or definitely stated in a judicial, expert or arbitral decision, the aggregate amount of recovery, judgment, or award which may be obtained by the Client against EXOES hereunder shall not exceed the price of the services concerned. The right to obtain an indemnification limited to the price of the services shall constitute the sole and exclusive remedy of the Client hereunder in case of any breach by EXOES of its obligations which have not been remedied by EXOES.
EXOES does not deliver any contractual guarantee related to the products or services delivered by EXOES other than the French legal guarantee applicable to EXOES.
EXOES does not support any liability :
- for hidden defects in respect with the delivery of products or the provision of services to clients of the same specialty of EXOES
– the expression “clients of same specialty” having the meaning of French Case Law under article 1641 et seq of French Civil Code,
- in respect with an utilization by the client of the products or the services delivered by EXOES which does not comply with the instructions of use of EXOES, or which is made in a manner contrary to the provisions of the law and the regulation applicable, including notably the regulation governing the security of the goods and services applicable in the place of use of the products or the services provided by EXOES.
- for indirect, incidental and/or consequential damages, including loss of property or profit.
13. Prohibition of Enticement of EXOES Engineering Employees
13.1 The Client undertakes to not solicit or solely target employees of EXOES for enticement or try to entice them; however, the foregoing provision will not prevent the Client from employing any such person who contacts the Client in response to a general solicitation regarding employment opportunities at Client. This obligation shall apply until two (2) years after the completion or termination of the contractual relationship.
13.2 If the Client infringes on the obligation as set out in article 13.1 and such infringement leads to a termination of the employment relationship of the enticed employee with EXOES and the beginning of an employment relationship of this employee with the Client, if the above obligation is not respected, EXOES is entitled to solicit the settlement of penalties equal to once (1) the amount of the annual salary of the concerned employee during the last twelve (12) months.
14. References
EXOES is allowed to mention the Client’s name as reference and notably to reproduce Client’s name and the agreed logo (to be attached in the document) designating the Client on EXOES’s website or on its advertising or promotional material for the sole purpose of presenting EXOES’s activity to the public. Notwithstanding the foregoing, EXEOS may not use Client’s registered trademarks, trade dress or logos without Client’s express written permission.
EXOES may make statements to the public or to administrative agencies in advertising or in other forms of communication and concerning the subject matter of this Agreement only with the prior written consent of the Client unless said statements are required by reason of mandatory legal provisions. Even in that case, EXOES shall inform the Client in writing and in good time before the statement concerned and shall come to agreement with the Client.
15. Applicable Law - Jurisdiction
15.1 The relations between EXOES and the Client are governed by French Law, the GTC and the terms of the order relating to the services ordered by the Client as accepted in the conditions defined hereunder by EXOES.
The Client states in this regard that the provisions of the present GTC of the order relating to the sales operation concerned as accepted in the conditions defined hereunder by EXOES and, more generally, of French Law itself, fully comply with his own national law and will consequently be applied entirely, and without any restriction of any kind, to the relations between EXOES and the Client.
15.2 It is expressly specified that, in the event of any dispute of any kind, any contestation of the validity, execution or enforceability of the present GTC or any difficulty in interpreting them and, more generally, regarding the relations between EXOES and the Client, the Commercial Court of Bordeaux (France) shall have exclusive jurisdiction.
This clause applies even in the case of summary proceedings, incidental petitions or plurality of defendants. Customer signature: I agree with the hereabove GTC