ITEN Terms and Conditions of Purchase
The present general terms of Purchase (hereafter "GTP") govern the relations between I-TEN S.A (here in after the "Purchaser") and the supplier (here in after the "Supplier" in connection with the supplies of any element (machines, tools, raw materials etc) here in after "the Products"
1. PURPOSE
1The Purchaser is the company I-TEN S.A., with which the Supplier has entered into a Contract. “Contract” means any document issued, or otherwise agreed in writing by the Purchaser, in connection with the “Products” being understood as any element (machines, tools, raw materials, etc.) including services of any kind provided by the Supplier, including in particular orders. The term “Supplier” is defined as follows: any natural or legal person who agrees to supply the Purchaser with the Products and who is identified as such in the Contract. The Contract is subject exclusively to the present General Terms of Purchase, hereinafter referred to as “GTP”.
Deviations from these GTP shall be accepted in writing by the Purchaser and/or included in the Contract. Unless additions, deletions or modifications made to the GTP by the Supplier (as set out in the order acknowledgement or in any other document issued by the Supplier) are signed by the Purchaser, as a matter of principle such additions, deletions or modifications are expressly rejected by the Purchaser and shall not form part of the Contract.
The Purchaser and the Supplier are hereinafter collectively referred to as the “Parties” or individually as a “Party”.
2. ORDER VALIDITY
2.1. All verbal orders shall be confirmed in writing. The Supplier shall send a written acknowledgement of receipt (A/R) for each order/Contract within twenty-four (24) hours of receipt of the order/Contract.
2.2. Acceptance of the order/Contract is presumed upon commencement of its execution by the Supplier
3. CONFORMITY - QUALITY
3.1 The Supplier shall deliver the Products in accordance with the terms of the Contract, and in particular with the drawings, specifications and schedules of works or any other document accepted by the Purchaser and the Supplier. The Products shall comply with all applicable legal and regulatory standards.
3.2 Any technical modification and/or change in delivery times shall be subject to the Purchaser's prior written authorization.
3.3 The Supplier shall comply with the terms of the Purchaser's Contract, including any agreed logistical arrangements, and shall comply with all its provisions, including those amended or modified by the Purchaser, where applicable. If the Products do not conform, the Purchaser will inform the Supplier, orally or in writing, of the non-conformity within a reasonable time after the Purchaser has discovered it. Accordingly, payment for non-conforming Products shall not constitute acceptance thereof, nor shall it limit or prejudice Purchaser's right to assert any legal or equitable remedy, or relieve Supplier of any liability, including for latent defects. The Supplier shall comply (and to ensure that its subcontractors and suppliers comply) with the Purchaser's quality requirements. All costs related to the non-conformity or defect of the Product shall be borne by the Supplier, including sorting operations, disassembly/reassembly and rework carried out, ITEN production stoppages.
3.4 At the Purchaser's first request, the Supplier shall provide all information on the Products to certify their origin and composition.
4. PACKAGING-LABELLING-MARKING-SHIPMENT
4.1 The Supplier shall deliver the Products packaged in accordance with the norms and standards in force in the European Union, the United States of America and/or any other country to which the Products may be delivered, but also in accordance with the Purchaser's requirements (packaging, marking, labelling and shipping). Any deterioration of the Products resulting from inappropriate packaging shall be borne by the Supplier. In the absence of the Purchaser's packaging requirements specified in the Contract, the Supplier is responsible for selecting packaging in accordance with applicable laws and regulations and good commercial practice, acceptable to common carriers for shipment at the lowest rates and adequate to ensure the safe arrival of the Products at the designated destination.
4.2 The Supplier is required to attach to the shipment a delivery slip containing all information concerning the order number, packing, nature of the packaging and the references appearing in the Contract, and for a service, a slip specifying the details of the service performed.
4.3 The Supplier shall be solely responsible for any damage to the Products or any additional expense due to incorrect or inadequate packaging, marking or labelling.
4.4 The Supplier shall adequately insure the Productsuntil their arrival at the Purchaser's premises or at any other agreed destination.
5. DELIVERY
5.1 The Supplier shall comply with the delivery date, place and terms specified in the Contract. Any internal hurdles on the part of the Supplier are expressly excluded.
5.2 The Supplier shall inform the Purchaser immediately of any event likely to cause a delay in delivery. In the event of delay, the Purchaser reserves the right:
- demand delivery by express service at the Supplier's expense;
- cancel all or part of the unfulfilled order without compensation; - as a last resort, purchase the Products from another supplier, in which case the Supplier will be fully liable for the costs arising from this transfer;
- apply late payment penalties corresponding to one percent (1%) of the total value of the Contract, per day of delay, up to a maximum of ten percent (10%).
These liquidated damages may be offset against the amount of sums still due to the Supplier.
In addition to the payment of late penalties, the Supplier shallindemnify the Purchaser for all costs and expenses relating to claims and/or chain breaks caused by this delay suffered by both the Purchaser and its customers, without prejudice to any action for damages. Compensation paid by the Supplier to the Purchaser shall not limit or prejudice in any way the Purchaser's right to claim damages in any legal action. I-TEN reserves the right to return any excess order or any product not ordered or shipped without an order from I-TEN.
6. CONTROL - ACCEPTANCE
6.1 The Purchaser reserves the right to inspect at any time the quality of the manufacture of the Products on the Supplier's premises or those of its subcontractors in accordance with the provisions of Article 17 of these GTP. The terms and conditions of such inspections shall be agreed in advance by the Parties. Such inspection shall in no way reduce or limit the Supplier's liability and warranties to the Purchaser. The Supplier shall answer any questions raised by the Purchaser and to certify, at the Purchaser's request, the origin of the Products, services and deliverables.
6.2 Acceptance by the Purchaser of the Products or deliverables provided shall in no way release the Supplier from liability (including in the event of non-conformity).
6.3 Upon receipt of the Products, the Purchaser shall carry out an inspection of the Products received. The Purchaser shall have the right to reject any Products which do not comply with the relevant purchase order or applicable specifications or requirements. Rejection of Products shall be notified to the Supplier within a reasonable time by e-mail or by any other written means. The Supplier shall, at its own expense, take back the Products not accepted by the Purchaser, or with respect to services not accepted, at the Purchaser's request, the Supplier shall perform the services again within the period agreed with the Purchaser or refund the services not accepted.
The Supplier waives its right to invoke the lateness of a claim by the Purchaser. The absence of objections and/or reservations by the Purchaser upon delivery of the Productsand/or payment for the Products may not be considered as tacit acceptance of the conformity of the Products delivered.
7. PRICE - INVOICE - PAYMENT TERMS - OFFSET
7.1 Prices are firm and non-revisable. They shall be stipulated exclusive of tax and may not be subject to any revision or increase, nor to any adjustment due to currency fluctuations during the term of the Contract. They are quoted DAP - ICC INCOTERMS 2020 Edition, place of delivery indicated in the Contract. The Supplier agrees to bear the risk of any economic change during the term of the Order or the occurrence of any circumstance which may make the delivery and/or performance of the Products more onerous.
7.2 Invoices shall include all information specified in the contract for the purpose of identification and control of the Products, as well as all statutory, quantity, unit price, place of delivery, mode of transport). They shall be sent to invoice@iten.com.
7.3 Invoices shall be paid within forty-five (45) days of the end of the month, unless otherwise stipulated in the Contract. The Purchaser may reject any invoice that is inaccurate or does not comply with the requirements of the Contract and/or applicable laws, and the Supplier shall promptly reissue any rejected invoice.
7.4 The Purchaser may, without limitation of any other rights or remedies permitted by law, set off any amounts owed to it by the Supplier against amounts owed by the Purchaser to the Supplier under the Contract to the extent permitted by applicable law
8. TRANSFER OF OWNERSHIP-TRANSFER OF RISKS
8.1 The Purchaser shall become the owner of the Products ordered as and when the Products are executed. The Purchaser does not recognize any retention of title clause and any provision to the contrary is excluded in principle.
8.2 The transfer of risks shall be effective at the time of delivery of the Products in accordance with the applicable Incoterm stipulated in Article 7. If no provision of INCOTERMS 2020 is applicable or if it is not specified, the transfer of risk shall take place at the time of delivery of the Product.
9. WARRANTY - LIABILITY
9.1 The Supplier acknowledges and warrants that theProducts, in accordance with the provisions of the Contract, have been selected, designed, manufactured or assembled by the Supplier in accordance with the state of art.
9.2 The Supplier is fully responsible for the design and manufacturing of the Products in accordance with the documents and standards referred to in article 3.1 of the GTP. The Supplier is responsible for the technical choices made, regardless of the Purchase's assistance during development.
9.3 The Supplier warrants for a period of twenty-four (24) months from delivery of the Products and acceptance of the associated deliverables and/or services that they:
- comply with all the Supplier's plans and diagrams, drawings and data specifications (in whatever format) or those supplied by the Purchaser and accepted by the Supplier or those jointly agreed by the Parties in writing and comply with all the requirements and conditions written on the purchase order/Contract,
- are of good quality and free from defects in design, material, workmanship or operation,
- are of merchantable quality and offer the safety expected and required during their use
9.4 During the warranty period, the Purchaser shall notify the Supplier in writing of any defect or malfunction in the Productsand/or services provided. The Supplier shall, without delay and at its own expense, replace or repair the Products or correct the defect or malfunction affecting the Products or service upon completion there of.
Any replacement, repair or correction carried out during the aforementioned warranty period shall give rise to a new warranty period of twenty-four (24) months, beginning:
(i) for Products: from the day on which the replacement, repair or correction of the Products is successfully and satisfactorily completed, and/or,
(ii) for deliverables: from the date of acceptance of the replaced, repaired or corrected deliverables by the Purchaser.
(iii) ownership of replaced, repaired or corrected Productsand/or deliverables shall pass from the Supplier to the Purchaser upon delivery thereof.
ix) purchase price paid for Products and/or deliverables that are defective or in poor working order.
9.5 If the Supplier does not satisfactorily replace or repair the Products or correct the defect or malfunction affecting the deliverables or Products within ten (10) days of notification of a defect or malfunction in the Products and/or deliverables, the Purchaser shall have the right, at its exclusive option, in addition to all other rights and remedies available under applicable law and/or regulations:
- carry out the replacement, repair or correction itself at the Supplier's exclusive cost and expense, or
- have such replacement, repair or correction performed by a third party at the Supplier's sole cost and expense, or
- obtain from the Supplier a full refund of the purchase price paid for the defective or malfunctioning Products and/or deliverables.
9.6 Upon expiration of the contractual warranty, the Supplier shall remain liable, under any applicable legal warranty (e.g. warranty for latent defects), for any consequences, direct or indirect, on said Products. Any provision purporting to exclude the application of legal warranties shall be deemed null and void.
9.7 In the event of a recall of a product incorporating the Products by the Purchaser's customer, the Supplier shall indemnify the Purchaser, within the limits of its own liability, for all costs incurred as a result of direct or indirect damage caused to the Purchaser.
9.8 In any event, the Supplier shall indemnify the Purchaser for all direct or indirect damages incurred by the Purchaser as a result of the non-conformity of the Products.
10. CLAIMS - INDEMNITY
10.1 The rights and remedies reserved to the Purchaserin the Contract are cumulative and in addition to all other rights and remedies of the Purchaser under applicable law.
10.2 Without limiting the foregoing, in the event that the Products do not conform to the warranties and/or provisions of the Contract, or if the Supplier breaches any of its obligations, the Supplier shall hold the Purchaser (including its successors) and its customers harmless.
10.3 The Supplier shall also indemnify the Purchaser(including its successors) and its customers against all damages, direct or indirect, consequential or nonconsequential, including without limitation litigation expenses, costs, expenses or losses which may be caused by, result from or arise out of: (a) any consultation, sorting, testing and/or repair of any defect in the Purchaser provided by the Supplier; (b) any interruption in production; (c) any recall campaign or corrective action; (d) any claim by a third party for personal injury or property damage, or death.
11. OBSOLESCENCE - REVERSIBILITY
The Supplier shall maintain delivery of the Products and related spare parts or any equivalent for a period of ten (10) years from delivery of said Products
. The Supplier also shall inform the Purchaser immediately in the event of any modification to the specifications and/or processes of the Products, including recipes (i.e. any element enabling the correct parameterization, dosages, elements, etc.).
In the event of a stoppage in the production of Products, or a version upgrade, the Supplier shall assist the Purchaser in finding a viable solution and to hand over all associated data, including at the end of the Contract.
12. INTELLECTUAL PROPERTY
12.1 The Supplier grants the Purchaser a non-exclusive, irrevocable, worldwide, free-of-charge license to use all intellectual and/or industrial property rights relating to the Products, for the duration of the validity of said rights and for all countries, with a view to direct and/or indirect exploitation by the Purchaser, with the right to grant sub-licenses.
12.2 The Products manufactured based on the Purchaser's drawings, designs and/or specifications, as well as any software code or model supplied by the Purchaser, may not be used by the Supplier for its own use, nor even sold to third parties without the Purchaser's express written authorization.
12.3 Nothing in the Contract shall constitute recognition by the Purchaser of any intellectual property rights claimed by the Supplier, or even of any need for a license to manufacture the Products or perform any related services.
12.4 The Supplier shall claim and acquire all rights and waivers from its personnel necessary to enable it to grant the Purchaser the rights and licenses provided for in the Contract. The Supplier assumes full and sole responsibility for the indemnification of its personnel in respect of such rights and waivers, including their remuneration.
12.5 The Supplier, on its own behalf and on behalf of the Purchaser (including its successors) and its customers, warrants that it has the rights to use the software required for the design and/or manufacture of the Products.
12.6 Supplier agrees to investigate, defend, indemnify and hold the Purchaser (including its successors) and its customers harmless from and against any claims of infringement or other allegations of infringement of proprietary rights (including patents, trademarks, copyrights, designs, or any other proprietary rights, misuse or misappropriation of trade secrets) and all resulting damages and expenses (including attorneys' fees and other professional fees) arising in any way out of the Products (collectively the “IP Claims”).
13. TECHNICAL DOCUMENTATION
During the agreed period and at the latest upon delivery of the Products and/or deliverables, the Supplier shall provide the Purchaser with all technical documentation relating to theProducts and/or deliverables, including user and maintenance manuals, training manuals, drawings, data sheets, product safety data sheets, factory inspection certificates, certificates of conformity and any other relevant documents. Unless otherwise specified in the purchase order, delivery of Productsand deliverables incorporating software includes the related source codes and object codes enabling maintenance, support and updating of such software. Unless otherwise agreed in writing by the Purchaser, the Supplier is not authorized to supply the Purchaser with open-source software and/or to integrate open-source software or an open-source application into a software application.
14. HYGIENE, SECURITY, LABOR LAW
The Supplier shall comply with all applicable health, safety and labour laws with respect to its personnel responsible for providing Products and/or services to the Purchaser. If the Supplier is called upon to work on the Purchaser's site, the Supplier shall comply with the Purchaser's internal rules in force within the said site, and with the applicable legal and regulatory provisions, in particular, the regulations applicable in terms of health, safety and labour law relating to work carried out in an establishment by an outside company. The Supplier is solely responsible for its own personnel working on Products and/or services to the Purchaser, whether or not they are present on the Purchaser's site. The Supplier is responsible for the remuneration and management of its own personnel.
15. CONFIDENTIALITY / NO PUBLICITY
15.1 All documents, information, studies, plans, samples, of any nature whatsoever (technical, commercial, etc.) and in any form whatsoever (email, oral and written disclosure, etc.) which have been made available to the Supplier, whether before or during the performance of the Contract, remain the property of the Purchaser. Under no circumstances may they be disclosed to third parties and/or used by the Supplier for its own purposes, without the prior written consent of the Purchaser. The Purchaser may demand their return at any time.
15.2 Confidentiality obligations shall remain in force five (5) years after the end of the performance of the Contract.
15.3 The Supplier shall not, without the prior written consent of the Purchaser, in any manner whatsoever (a) promote or publish the fact that the Supplier is contractually bound to supply the Purchaser with the Products; (b) use the Purchaser's trademarks, trade name or confidential information in its own advertising or promotional materials; or (c) use the Purchaser's trademarks, trade name or confidential information in any electronic medium whatsoever, such as websites, blogs or any other type of publications.
16. INSURANCE
16.1 The Supplier shall be covered by an insurance policy for all risks relating to its activities, including in particular professional civil liability, operating civil liability and product liability/after delivery, with a minimum cover of one (1) million Euros, per damage and per year, (including in particular nonconsecutive immaterial damage, costs of removalreinstallation, costs of recall campaigns, loss of use, etc.) incurred by the Purchaser or by third parties. If the Supplier is not covered for the above-mentioned amount, it shall contract for an additional cover.
16.2 At the Purchaser's first request and no later than ten (10) days thereafter, the Supplier shall provide all necessary insurance certificates and supporting documents. The insurance policies taken out by the Supplier shall not modify the nature, content or scope of its obligations and liabilities applicable under this Contract.
17. AUDIT RIGHTS AND INSPECTION OF SUPPLIER PREMISES
17.1 The Supplier notably authorizes access to its premises to the Purchaser at any time for the sole purpose of auditing the Supplier's compliance with the provisions of the Contract.
17.2 The Supplier shall cooperate with the Purchaser tofacilitate the audit, generally by allowing the Purchaser access to records and other documents.
17.3 The Supplier shall keep all records relevant to the Contract, including those relating to the establishment and evaluation of the Supplier's performance where applicable.
17.4 The conduct of any audit or inspection by the Purchaser, or any of its representatives, shall in no way constitute an acceptance of the Products by the Purchaser (whether in process or finished), nor release the Supplier from any liability under the Contract, nor prejudice any other right or remedy which the Purchaser may have.
18. TERMINATION
18.1 TERMINATION FOR FAULT: In the event of non-performance by the Supplier of any of its contractual obligations, or in the event that the Supplier proves unable or likely to be unable to perform an order/Contract, or if it fails to improve its performance in such a way as to jeopardize the proper delivery of Products under the terms of the Contract, the Purchaser shall be entitled to terminate all or part of the Contract, by registered letter with acknowledgement of receipt, thirty (30) days after formal notice by registered letter with acknowledgement of receipt has remained without effect during this period, without prejudice to any damages to which the Purchaser may be entitled.
18.2 TERMINATION FOR CONVENIENCE: the Purchaser may terminate the Contract, in whole or in part, at any time and for any reason, upon written notice to the Supplier. In the event of termination under this Section, the Purchaser shall indemnify Supplier only for:
(a) unpaid Products previously delivered and accepted and complying with the requirements of the Contract;
(b) any balance due to the Supplier for specific tooling and equipment supplied by the Purchaser in accordance with the requirements of the order/Contract;
(c) undelivered completed Products which: (1) comply with the requirements of the Contract; (2) have been produced in accordance with delivery schedules or programs approved by the Purchaser and pending at the date on which the termination became effective; and (3) are transferred to the Purchaser in accordance with Article 8 of the Contract; (d) actual costs incurred for work in progress and raw materials which: (1) are not damaged or destroyed; (2) have not been purchased by a third party with the prior authorization of the Purchaser in a written notice; (3) cannot be used by the Supplier to produce goods for itself or for other customers; and (4) are transferred to the Purchaser in accordance with Article 13 of the Contract;
(e) the actual costs incurred by the Supplier to protect the Purchaser's products pending their delivery or return; and
(f) any other costs or indemnities which the Purchaser reserves the right to pay, at its sole discretion.
Unless prohibited by applicable law, the Purchaser reserves the right to terminate the Contract immediately without liability to the Supplier in the event of the Supplier's insolvency.
Upon termination of the Contract for any reason whatsoever, the Purchaser reserves the discretionary right to request a transitional period of up to eighteen (18) months after the effective termination of the Contract. This option shall be exercised by the Purchaser by means of a written declaration sent to the Supplier within three (3) months of notification of termination. During this transitional period, the Supplier shall supply the Products to the Purchaser in accordance with these GTP and the provisions of the Contract. At the beginning of the transitional phase, the Purchaser shall inform the Supplier of the duration of this period, unless otherwise agreed between the Purchaser and the Supplier.
19. EXPORT RULES
The Supplier agrees to comply with all applicable export control and sanctions regulations of the member states of the European Union, the United States of America, and any other relevant country (hereinafter referred to as the “Export Control Regulations”). The Supplier shall comply with European regulations and/or any other applicable regulations relating to minerals (such as tin, tantalum, tungsten, gold) originating from conflict zones. In this respect, the Supplier already shall exercise its duty of care and to ensure that its imports, falling within the scope of the said regulations, come exclusively from responsible sources and do not originate from conflicts.
20. MISCELLEANOUS
20.1 FORCE MAJEURE
Force majeure or unforeseen circumstances, as defined by the case law of the French courts, shall suspend all obligations of the Purchaser under the Contract. At the time the event occurs, the Supplier shall immediately inform the Purchaser and to endeavour to take all possible and reasonable measures to enable continued performance of the Contract. If the event of force majeure or unforeseen circumstances continues for more than two (2) months, the Purchaser reserves the right to request a written undertaking from the Supplier that the event of force majeure or unforeseen circumstances will not exceed two (2) months. Should the Supplier fail to provide such an undertaking, the Purchaser may terminate the Contract ipso jure and without compensation of any kind.
20.2 SUBCONTRACTING
The Supplier is not authorized, without the prior written consent of the Purchaser, to subcontract directly or indirectly, at any level whatsoever, the performance of the Contract or any part thereof. The Supplier shall defend, indemnify and hold harmless the Purchaser against any claims by its cocontractors and/or suppliers. The Supplier shall remain solely liable to the Purchaser for the acts and omissions of its cocontractors or subcontractors and for their compliance with the terms and conditions of these GTP.
20.3 SEVERABILITY & NON-WAIVER
The nullity of one of the clauses of the GTP shall not entail the nullity of the other clauses. The invalid clause will be replaced by a clause intended to obtain an economic and legal effect equivalent to the original clause. The fact that one of the parties does not avail itself of one of its rights under the GTPshall not be interpreted, regardless of the duration, extent or frequency of such forbearance, as a waiver or relinquishment of its right to subsequently enforce, at any time, each of the clauses of the GTP.
20.4 SIGNIFICANT CHANGE OF CIRCUMSTANCES / UNFORESEEN CIRCUMSTANCES
Without prejudice to the other stipulations of the GTP, all applicable legal or contractual rules allowing renegotiation or termination based on a significant change in unforeseeable circumstances are expressly excluded.
20.5 CHANGE IN SUPPLIER SITUATION - NON-TRANSFER
In the event of a change of management, shareholding, transfer of control under Article L233-3 of the French Commercial Code, merger or absorption of the Supplier, the latter shall immediately inform the Purchaser, who may terminate the Contract without notice and without indemnifying the Supplier.Furthermore, the Supplier may not under any circumstances transfer, assign or delegate all or part of its rights and obligations under the Contract (including, without limitation, payment rights), either directly or indirectly, by merger, acquisition or participation in a joint venture, without the prior written consent of the Purchaser.
20.6 LEGAL RELATIONSHIP
The Purchaser and the Supplier are independent contractors and nothing in the Contract shall make either party the agent or legal representative of the other for any reason whatsoever, nor shall it grant either party any authority to assume or create any obligation in the name and on behalf of the other.
20.7 APPLICABLE LAW & DISPUTES
Any dispute arising out of or in connection with the commercial relationship with the Supplier concerning I-TEN shall be subject to the jurisdiction of the Judiciary Courts ofLYON (France), unless the parties decide to attempt an amicable resolution of their dispute. The applicable law shall be French law, as well as all international standards, rules and/or publications specifically referred to in the Contract, to the exclusion of its conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG).
21. PERSONAL DATA PROTECTION
21.1 All provisions relating to the protection of personal data used in the context of this Contract shall comply with the applicable regulations, by way of example and if applicable the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016.
21.2 To this end, the Supplier shall comply with the obligations incumbent upon it individually as the party responsible for processing its own data within the framework of personal data protection.
21.3 If, in the performance of the Contract, the Supplier is to carry out personal data processing operations on behalf of the Purchaser, a specific agreement relating to the subcontracting of personal data processing shall be concluded prior to any processing operation.
22. ETHICS
The Supplier shall scrupulously comply with the provisions of the ITEN Supplier Code of Conduct and all applicable regulations on corruption, including but not limited to the OECD Convention of December 17, 1997, and on respect for the environment.