General purchasing conditions - US

ARTICLE 1. Scope

These General Purchasing Conditions constitute the purchase proposal for goods and services of the ESI US R&D Inc. or ESI North America, Inc. (hereafter the "Purchaser"), a corporation subject to American law, whose head office is located at 32605 West 12 Mile Rd Suite 350 Farmington Hills MI 48334 identified in the Order (hereafter the "Order(s)"), issued to Suppliers (hereafter the "Supplier(s)") and designed to define the terms governing purchase and sales operations concerning the Purchaser and its Suppliers (hereafter the "Party" or "Parties").

The results of commercial negotiations may require the drafting of specific conditions of sale and purchase to apply to the Parties.

ARTICLE 2. Orders

Any purchase made by the Purchaser will be the subject of an Order, issued in written or electronic form and signed by a duly appointed legal representative or employee of the Purchaser. Orders must include a purpose, description, price, delivery deadline, payment method and the signature of an authorized person.

Any change to the terms of the Order must be made in an amendment confirmed by the Parties. The Order shall only be binding upon receipt of a signed acknowledgement without modifications or reservations, issued by the Supplier within a reasonable timescale. The Purchaser has the right to cancel the Order without penalties if the Supplier's acknowledgement is not received within this timescale.

ARTICLE 3. Payment of the price

Products will be acquired from the Supplier in accordance with the price schedules supplied by them.

In no circumstances will the prices shown on the Order be modified without the prior consent of the Purchaser, as recorded in an amendment to the purchase order or in a new purchase order that cancels and supersedes the initial document, only allowing the issuance of an invoice at prices other than the initial prices.

Any extra cost, whatever its nature, shall be subject to the prior written consent of the Purchaser and specifically indicated on the purchase Order.

Subject to acceptance of the deliveries by the Purchaser and excluding any specific agreement, the Purchaser's Orders shall not result in any automatic payment in advance or on account or any deposit. Payment terms are 60 days date of invoice or 45 days end of month.

ARTICLE 4. Invoicing

Upon the Purchaser's acceptance of the Order, invoices shall be issued in accordance with the law and the Order upon the Purchaser's acceptance of the Order and sent to the billing address shown on the Order, accompanied by supporting documents as necessary. Invoices shall be addressed to the Purchaser.

ARTICLE 5. Deliveries

The quantities shown on the Order must be fully complied with and the delivered products suitably packaged at the Supplier's liability, the latter assuming, unless otherwise agreed, the risks of breakage, loss and damage. If necessary, the Supplier shall be liable for customs clearance.

The delivery deadlines requested by the Purchaser and accepted by the Supplier are a substantive condition of the Order. The Supplier shall be wholly liable for any late delivery and shall bear all of the adverse consequences, direct or indirect, without prejudice, if the delay exceeds ten days, to the Purchaser's right to:

apply a late penalty to the Supplier at the rate of 0.5% of the value (excl. VAT) of the Order per day of delay, request cancellation of the sale at the Supplier's expense, replace the latter with the supplier of its choosing, at the Supplier's expense, apply, after ten days of a formal notice remain unanswered, a proportional reduction in the price of the products ordered. Deliveries shall be made on the days and at the times of reception shown on the logistics specification issued to the Supplier.

The delivery deadlines are understood to be for the goods delivered to the sites designated by the Purchaser. The Supplier must inform the Purchaser in a timely manner of any event that may hinder fulfilment of the Order.

Total or partial failure of the Supplier to deliver shall automatically result in the Purchaser withholding the price until delivery of the products ordered is complete or, if the price has already been paid in part or full, in the immediate return of the sums paid to the Supplier in this respect by the Purchaser.

Acceptance by the Purchaser will take place at the delivery location shown on the Order for the purpose of verifying the delivery's compliance with the Order in respect of quality and quantity.

ARTICLE 6. Compliance - Quality of the products

The Purchaser shall have the right to refuse products that do not comply with the Order and shall give notice of this refusal in writing. The Supplier shall recover the refused products at its own expense within a maximum of ten days of being informed of the refusal.

Delivered products must comply in all respects with the legal and regulatory measures in force, especially those relating to quality, composition, presentation and labelling.

The Supplier shall immediately replace, at its expense, all products delivered to the Purchaser that fail to meet the quality criteria indicated on the specification provided by the Purchaser. It shall also replace products that do not comply with the regulations in force. Alternatively, the Purchaser may, having detected and reported the compliance failure, after ten days of a formal notice remain unanswered, request a price reduction or cancellation of the sale at the Supplier's expense and/or a replacement from the supplier of its choosing, at the Supplier's expense.

The Supplier shall be deemed wholly liable to the Purchaser for all the adverse consequences of any compliance or quality failure of the delivered goods, products or services, in respect of both quality and quantity and, therefore, undertakes to fully compensate the latter for any harm arising therefrom.

ARTICLE 7. Supplier's liability - Guarantee

The Supplier shall guarantee the Purchaser against any fault or deficiency, apparent or otherwise, resulting from a design error or a material or production fault that renders the products ordered unsuitable for their use and purpose, for a period of one year, starting from the delivery of said products and shall compensate the Purchaser for material or intangible losses, direct or indirect, resulting therefrom, including harm or damage of any kind caused to persons and/or property.

The Supplier shall, therefore, repair or replace any defective products or parts as required and at its own expense.

Lastly, the Purchaser shall benefit from the manufacturer's warranty relating to the products delivered.

The Supplier shall, at its expense, take out the insurance guarantees required to cover the products until their arrival at the location agreed for their delivery, as well as liabilities arising from the fulfilment of the Orders for any physical harm and material/intangible damages and shall provide evidence thereof at the Purchaser's request.

ARTICLE 8. Cancellation

Should the Supplier fail to fulfil any obligations, within a resolution period of ten (10) days following formal notice, excluding obligations that cannot be resolved, in particular, the failure to declare a conflict of interests, the Purchaser shall have the right to cancel the order without further notice without prejudice to any compensation to which it may be entitled.

ARTICLE 9. Transfer of ownership and risks

Transfer of ownership takes place upon the occurrence of one of the following events (the timeline shown on the Order will indicate which event will occur first): upon full settlement of the Order by the Purchaser or upon acceptance of the Order. Transfer of risks occurs upon acceptance of the Order.

ARTICLE 10. Force Majeure

Force majeure refers to any event that cannot reasonably be foreseen or avoided and that prevents one of the Parties from fulfilling its obligations. In the event of force majeure, the obligations of either Party, the obligations of the Supplier and/or the Purchaser affected by the force majeure will be suspended temporarily. The affected Party shall inform the other Party of the force majeure event and of its likely duration in a timely manner; it shall be required to make every effort to minimize the effects arising from the situation. If the force majeure event persists for more than fifteen (15) days with no possibility of remedy, the other Party may cancel the Order with no compensation due from either Party.

ARTICLE 11. Intellectual property rights

Subject to the rights of third parties, each of the Parties retains the intellectual property rights existing prior to the coming into effect of the Order. Where an order relates to works protected by conventional literary and artistic copyright (as with photographs, graphic artwork, etc.), the Supplier transfers to the Purchaser all ownership rights (including, but not limited to the right of reproduction and performance rights) relating to the results of the services provided, starting from their acceptance and for the legal duration of copyright protection, for the entire world and without any restriction as to purpose, thus allowing the Purchaser to exploit or dispose of them as it sees fit.

For any intellectual property for which rights cannot be transferred, Supplier grants a worldwide, nonexclusive, irrevocable, perpetual license to use, reproduce, distribute (including via electronic means), execute, store, and display the object code version of the Licensed Software and to create modifications and derivatives.

Unless otherwise stipulated on the Order, for any license to use standard software included in the Order, the Supplier grants the Purchaser, for the legal duration of copyright protection, the non-exclusive right, for the purposes of its commercial activities anywhere in the world, to use the standard software on the number of machines or for the number of consecutive users agreed on the Order, without prejudice to the right to make one or more backup copies in accordance with the legislation in force in the countries in which it is run. It is specified that without written agreement, the Purchaser shall not be entitled to correct errors, the Supplier exclusively reserving this right for itself.

The Supplier also confirms that it is the owner of all Intellectual Property rights pertaining to the supplies or to the software product or that it is authorized by the owner of said rights to market the software product. The Supplier also confirms that there is no infringement of third-party Intellectual Property rights.

Should the Purchaser be sued for infringement for using the software product, it shall immediately inform the Supplier of that fact. The Supplier undertakes to provide the Purchaser with a non-infringing solution as soon as possible or to acquire the rights from the third-party claiming ownership. Failing this, the Supplier undertakes to bear responsibility for defending and settling the case in its own name and at its own expense, likewise for the consequences of suspending the use of the software (suspension henceforth authorized to avoid aggravating the consequences of the use relative to the amount of damages). The Purchaser shall be required to cooperate with the Supplier. It is also understood that the present GPCs are not applicable to orders for software development, for which the Purchaser uses specific terms and conditions.

ARTICLE 12. Confidentiality

Confidential information (hereafter "Confidential Information") refers to all technical, industrial, financial and commercial information belonging to the Purchaser and third parties or any other information or document related to the Purchaser's activities, strategy or research and development issued by or on behalf of the Purchaser to the Supplier or of which the Supplier becomes aware during fulfilment of the Order, whatever its nature, form and medium, including the existence of the Order itself and any resources made available to the Supplier as a result of the Order.

Information is not or is no longer deemed confidential when:

• it is freely accessible to the public at the time it is issued or becomes so after being issued, other than by infringement of the present Agreement; or
• the Receiving Party can demonstrate that it was legally in its possession prior to it being issued by the Disclosing Party or that it was previously obtained legally and in good faith by the Receiving Party from a third party which, to the Receiving Party's best knowledge, had not received such information directly or indirectly from the Disclosing Party under an obligation to maintain its confidentiality; or
• for which the Receiving Party can provide the evidence that it resulted from independent work carried out by the Receiving Party with no prior knowledge of any Confidential Information obtained from the Disclosing Party. The Supplier undertakes, for a period of five (5) years from receipt of the Confidential Information, (i) to take all measures necessary to protect the Confidential Information, (ii) not to disclose or publish the Confidential Information nor to transmit it to a third party, in any form whatsoever, without the Purchaser's prior written consent, (ii) to inform the Purchaser immediately of any loss of Confidential Information and (iv) to use the Confidential Information only as is required for the fulfilment of the Order.

Within thirty (30) days of the date of cancellation or expiry of the Order or at any time upon written request from the Purchaser, the Supplier undertakes to (i) return the Confidential Information to the Purchaser or (ii) provide the Purchaser with a declaration signed by a duly authorized representative certifying that the Confidential Information has been destroyed. In no circumstances shall the Supplier remove all or part of any software (whether in source code or object code format) without the Purchaser's prior written consent.

Any publicity or communication with third parties relating to the Order shall require the Purchaser's prior written consent.

ARTICLE 13. GDPR - Protection of personal data

All terms used below shall be interpreted in compliance with the European General Data Protection Regulation (hereafter "GDPR").

In the context of the Order, the Supplier, in its role as data controller and data processor to the Purchaser, undertakes to process the data transmitted by the Purchaser (hereafter "the Purchaser's Personal Data") solely for the supply of products and/or services mentioned in the Order and in accordance with the GDPR. In this respect, the Supplier undertakes (i) to assist the Purchaser so that the Purchaser's Personal Data is processed in accordance with the obligations set out in the GDPR, (ii) to process the Purchaser's Personal Data in accordance with the Purchaser's instructions, (iii) to disclose information relating to the Purchaser's Data solely and exclusively to employees responsible for the processing of the Purchaser's Personal Data; it guarantees that its employees have signed confidentiality agreements containing obligations that are at least equivalent to those set out in the Order, and (iv) to cooperate actively and without delay with the Purchaser in responding to any request concerning the processing of the Purchaser's Personal Data referred to in the Order. The Supplier undertakes to introduce, at its expense, all of the organizational and technical measures necessary to ensure an appropriate level of state of the art security to restrict the risks of accidental or malicious destruction of the Purchaser's Personal Data and of its damage, fraudulent use, disclosure or access thereto, especially when the processing of the Purchaser's Personal Data entails its transmission via the network.

The Supplier guarantees that it has not sent the Purchaser's Personal Data out of the European Union nor subcontracted the processing of said data to a data processor located outside of the EU or in a country that has not been recognized by the European Commission as ensuring an adequate level of protection, without prior written authorization from the Purchaser. If the Supplier needs to transfer the Purchaser's Personal Data out of the European Union or to a country that has not been recognized by the European Commission as ensuring an adequate level of protection for processing, the Supplier shall (i) request the prior written authorization of the Purchaser, (ii) agree a written contract that includes, at least, the obligations and levels of protection required by the GDPR, (iii) send, at the Purchaser's request, a copy of the contracts agreed with the data processors and (iv) guarantee that the data processor has introduced adequate measures to make the Purchaser's Personal Data secure.

In all circumstances, the Supplier remains solely liable for the actions, errors and omissions of any of its data processors tasked with processing the Purchaser's Personal Data and undertakes to cooperate fully with the Purchaser and authorize it to carry out an audit to verify the Supplier's compliance with the above obligations.

The Supplier undertakes to inform the Purchaser of any incident or violation of the Purchaser's Personal Data within 24 hours of learning of the same.

ARTICLE 14. Adherence to the United Nations Global Compact and International Trade Rules

The Purchaser adheres to the Global Compact introduced by the United Nations (https://www.unglobalcompact.org/Languages/french/index.html) and is committed to upholding and applying the fundamental principles of human rights, employment conditions, the environment and anti-corruption. The relationships surrounding any Order require the Supplier's compliance with this code of conduct. The Supplier, for its part, undertakes to ensure that any subcontractors it uses comply with these principles throughout the fulfilment of the Order and has introduced adequate internal procedures, tools and indicators to ensure such compliance. It authorizes the Purchaser to inspect the effectiveness of these arrangements, either itself or via a third party approved by both Parties.

During the fulfilment of the Order, the Supplier undertakes to abide by the laws and regulations applicable to international trade, including those related to export control and economic sanctions and will require any subcontractors to do likewise.

ARTICLE 15. Anti-corruption clause

The Parties undertake not to offer, directly or indirectly, benefits to third parties, nor to accept, directly or indirectly, gifts for themselves or for third parties, nor to grant nor to cause others to promise them benefits that are or may be deemed contrary to practice or corrupt.

In particular, the Supplier shall (i) comply with all laws, regulations, codes and directives applicable to anti-corruption ("Anti-Corruption Laws"), including, but not limited to, the anti-corruption legislation applicable in France, (ii) not take part in an activity, practice or conduct that would constitute an infraction of the Anti-Corruption Laws, (iii) not commit, directly or by omission, any act that would cause the Purchaser to infringe the Anti-Corruption Laws; and (iv) quickly report to the Purchaser any request for a benefit of a financial or of any other nature made to the Supplier in the course of the fulfilment of the Order.

ARTICLE 16. Audit

The Supplier undertakes to retain all documents relating to the Order.

At any time, the Purchaser may ask the Supplier for access to these documents to inspect the accuracy of the price and the Supplier's compliance with the Order.

The Purchaser may also introduce audit procedures and require the Supplier to provide inspection reports and certifications or any other document attesting to its compliance with anti-corruption arrangements.

ARTICLE 17. Legal jurisdiction

The Parties undertake to seek to settle any dispute or complaint concerning these General Purchasing Conditions in an amicable manner.
Unless otherwise agreed, any dispute relating to the Purchaser's Orders will be dealt with exclusively by the Tribunal de Commerce local to the Purchaser's registered office, regardless of any provision to the contrary in the Supplier's general sales conditions or in any of its commercial documents (including delivery notes and invoices).

ARTICLE 18. Warranty

(a)         Licensed Software Warranty. Licensor represents and warrants that:

   i.              The Licensed Software is and shall be free and clear of all liens and encumbrances;

   ii.             The Licensed Software and Services are and will remain free of Harmful Code;

   iii.            The Licensed Software and the design thereof shall not contain preprogrammed preventative routines or similar devices which prevent Buyer and its Third Party Service Providers from exercising the rights granted to them under this Agreement or from utilizing the Licensed Software for the purpose for which it was designed;

   iv.           Each item of Licensed Software and its media shall be new and shall be free from defects in manufacture, materials, and design, and shall function properly under ordinary use and operate in conformance with its Applicable Specifications and Documentation for a period of one (1) year from the applicable Acceptance Date (the “Licensed Software Warranty Period”) of such Licensed Software; and

   v.            During the Licensed Software Warranty Period, Licensor will provide warranty Service to Buyer at no additional charge and will include all Services or replacement Licensed Software or Licensed Software media necessary to enable Licensor to comply with the warranties set forth in this Agreement

(b)          Services Warranty. Licensor represents and warrants that it has the reviewed the Applicable Specifications and requirements of the Services and it has the expertise and resources necessary to undertake and complete the Services in accordance therewith and in the applicable timeframe, if any, specified in a Statement of Work.  Supplier warrants that (a) its Services will meet or exceed any service levels that may be set forth in an applicable Statement of Work and that its Services will be performed in a professional, diligent and workmanlike manner consistent with the highest industry standards for the performance of such Services and (b) in providing the Services, Supplier and Supplier’s personnel will comply with all applicable laws and obtain all permits, approvals and licenses that pertain to, the provision of the Services.

ARTICLE 19. Indemnification

(a)          Proprietary Rights Indemnification. Supplier represents and warrants that at the time of delivery the Licensed Software, Services or Documentation provided under this Agreement is not the subject of any litigation.  Supplier shall indemnify and hold Buyer and Third Party Service Providers and their respective successors, officers, directors, employees, and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs, and expenses, professional fees and legal fees resulting from or arising out of any (a) litigation, (b) any breach or claimed breach of the foregoing warranties or (c) which is based on a claim of an Infringement. Subject to the other requirements of this Section, Licensor shall defend and/or settle, at its expense, all suits or proceedings arising hereunder.

ARTICLE 20. Compliance with Laws; Employment/Business Practices

(a)          Suppliers, and any goods or services supplied by Suppliers, shall comply with all applicable laws, rules, regulations, orders, conventions, ordinances or standards of the country(ies) of destination or that relate to the manufacture, labeling, transportation, importation, exportation, licensing, approval or certification of the goods or services, including, but not limited to, those relating to environmental matters, data protection and privacy, website accessibility, wages, hours and conditions of employment, subcontractor selection, discrimination, and occupational health/safety.

Licensor further represents that neither it nor any of its subcontractors will utilize child, slave, prisoner or any other form of forced or involuntary labor, or engage in abusive employment or corrupt business practices, in the supply of goods or provision of the Services. 

(b)          In connection with this Agreement, Supplier agrees to comply with all applicable export control and economic sanctions laws and regulations of the United States and any other relevant jurisdiction (the “Export Control Laws”).  Supplier will not violate, and will not cause Buyer to violate, any Export Control Laws.  Supplier shall provide to Buyer the appropriate classifications (e.g., ECCN, ITAR Category, or other country’s export classification) for any hardware, software, technology or services in connection with this Agreement and provide appropriate documentation of such classification (e.g., a CCATS number) where applicable.  Licenses or other authorizations required for the export of hardware, software, technology or services to Buyer will be the responsibility of Supplier unless otherwise indicated in this Agreement, in which event Supplier shall provide all necessary information as may be requested by Buyer to enable Buyer to obtain such licenses or authorizations.  Compliance with Export Control Laws includes, but is not limited to, abiding by U.S. economic sanctions, embargoes and prohibitions on transactions involving certain countries, regions, entities, individuals and other restricted parties.  This includes, but is not limited to, the prohibition on the transfer of hardware, software, technology or services to, transit through, or procurement from, U.S. sanctioned countries and regions (currently Cuba, Iran, North Korea, Sudan, Syria and the Crimea region of Ukraine) unless such transactions are permissible under all applicable laws and regulations.