Sales terms

1. General Information – Enforceability

Any order formulated by the Buyer (hereinafter also referred to as “the Client”) involves absolute acceptance by the Client and its full and entire agreement with the General Sales Terms and Conditions of Techway SAS (hereinafter also referred to as “the TECHWAY Company TECHWAY” or “TECHWAY”).

These general sales terms and conditions (hereinafter also referred to as “the General Sales Terms and Conditions” or the “GSTC”) prevail over any other document of the Buyer and in particular over the purchasing conditions. Except by written and final acceptance of the TECHWAY Company.

Any condition to the contrary enforced by the Buyer shall therefore be, in the absence of express acceptance, non-invocable to the TECHWAY Company, regardless of the time when it shall thereby have been brought to its attention.

The fact that the TECHWAY Company does not invoke one these General Sales Terms and Conditions at a given time cannot be interpreted as being deemed as a waiver to invoke one of these aforementioned GSTC at a subsequent time.

Any document other than these General Terms and Conditions, such as a prospectus, catalogue, notice, has a non-contractual, reference-only value, with the exception of the estimate and any other document setting the special conditions having accepted the TECHWAY and Buyer agreement.

2. Estimate – Test loan

2.1 Estimate

Any request emanating from the Buyer shall be formulated by every possible written means, whether by hard copy or electronic medium and whatever the transmission method.

The TECHWAY Company shall bring a response to this request by means of establishing an estimate including a technical and financial proposal, this proposal constitutes a special condition of these General Terms and Conditions.

The estimate shall be valid for a period of one (1) month, as from its date of issue.

2.2 Test loan

Prior to ordering products or services, the TECHWAY company may grant to the Buyer without however being subject to any obligation in this regards, a temporary right and a temporary license, free of charge, with non-exclusive and non-transferable right for use certain products, including some related or unrelated computer programs with the TECHWAY products, within the limitations of time and geographical limitations stated and agreed between the TECHWAY Company and the Buyer.

In case of test loan, the temporary right and the temporary license for use certain products, including some related or unrelated computer programs with the TECHWAY products, will be reserved to Buyer only for evaluation purposes of the TECHWAY products and services, excluding any other rights of use or exploitation rights for commercial or industrial purposes.

At the end of the test loan, and in the absence of ordering for products or services of the TECHWAY Company, the Buyer shall immediately stop using the products as well as related or unrelated computer programs with the TECHWAY products, as purpose of the test loan, and return them to the TECHWAY Company, without any right to copy, including for a backup, and excluding more generally any other rights to use or exploitation right which are exclusively reserved to TECHWAY and TECHWAY property.

3. Orders

Any sale must be the subject of a written order in every point in accordance with the estimate established by the TECHWAY Company and must necessarily mention the number of this estimate.

For an order to be valid, it must particularly specify the purpose and the quantity of deliverables or products sold (hereinafter also referred collectively as “Deliverables and/or Products” and individually as “Deliverable and/or Product”. As part of this definition “NOTURB” is a product of TECHWAY and “Sparkle” is a deliverable of TECHWAY) as well as the agreed upon price, terms of payment, place and date of delivery or pick-up.

The order specifies the name and position of its signatory.  However, orders are declared final even if they are filed via the representatives that are not the employees of the Buyer.

Execution of the purpose of the benefit (supply of goods or services hereinafter referred collectively as “the Services” and individually as “the Service”) may only take place after receipt and agreement by the TECHWAY Company of a purchase order corresponding to the estimate.

If the order is not in accordance with the estimate, the order shall only be deemed as accepted by the TECHWAY Company by sending an acknowledgement of receipt from the TECHWAY Company validating the order with the amended terms in accordance with the estimate.

As indicated above, confirmation of the estimate for the Buyer, entails acceptance of these General Sales Terms and Conditions of the TECHWAY Company, with recognition of having previously and perfectly acquainted itself with this latter and the waiver by the Buyer to invoke its own general or specific purchasing conditions.

The benefit of the order agreed by TECHWAY is personal to the Buyer and cannot be transferred without the prior and written agreement of the TECHWAY Company.

4. Change or cancellation to the order

The orders are firm and final. Any order change or cancellation not corresponding to the estimate from the TECHWAY Company and requested by the Buyer can only be taken into consideration if it is achieved in writing thirty (30) days prior to the performance of the Services and can give rise to a potential penalty for late modification or late resolution of the order beyond the thirty (30) days aforementioned. Any change or cancellation to the order must be made by a document which must be dated and signed by the Buyer.

In the event of a change or cancellation requested by the Buyer, the TECHWAY Company shall be free from deadlines agreed upon for its fulfilment.

All supplementary Services which shall have been decided by common consent with the Buyer on during the course of fulfilment, effects a novation for the announced prices and deadlines, and they shall give rise to an amendment to the order in progress as well as additional invoicing.

If the TECHWAY Company does not accept the change or cancellation, the potential payments made on account shall be restored without any other consideration, nor right to any sum or indemnity to the Buyer.

Furthermore, if due to an unforeseeable and irresistible change in economic conditions that led to the development of the order and beyond the control of the Parties, the contractual balance of the order should be changed in any substantial and permanent way at the expense of TECHWAY Company, which could not then continue the performance of the Services, the Parties shall consult to determine the contractual adjustments to be made to reduce the effects of such event.

If, on the expiry of a period of three (3) months from the application for adjustment of the order placed by the TECHWAY Company to the Buyer, no endorsement is established by mutual agreement between the Parties, the TECHWAY Company may then cancel the order by registered letter with acknowledgment of receipt addressed to the Buyer without any other consideration, nor right to indemnity between the Parties.

5. Prices

The Services are provided with the prices in force at the time of order placement and the establishment of the estimate, expressed in euros exclusive of tax (excluding any applicable VAT into account on the day of the estimate); any change in rate may be passed on to the price of products or services.

Unless otherwise agreed, prices are net EX WORK Factory (i.e. EXW from the TECHWAY Company premises, according to the Incoterms version dated 2010), exclusive of all taxes and customs duties, not including transport and insurance costs or other expenses on the basis of rates announced to the Buyer.

Any taxes, customs duties, or other expenses on the Services to be paid as stipulated by an exporting country or those of an importing country or a transit country are borne by the Buyer which agrees.

Any order of which the amount is lower than 250 euros excluding taxes, shall give rise to the invoicing of a lump sum of 50 euros excluding taxes intended to cover administrative costs for managing the order.

In case of hazard technology, a supplement may be requested based on the additional Services to be carried out and according to the human and material resources that the TECHWAY Company shall be led to implement.  This supplement must be the subject of an additional clause established by a mutual agreement between the Parties.

Unless prior written consent of the TECHWAY Company, benefit payment for export must be made by irrevocable letter of credit after the invoice date. In the event that the supply agreements differ from the Incoterm EXW (according to Incoterms version dated 2010), the payment will be made by irrevocable letter of credit confirmed by a bank acceptable to the TECHWAY Company payable against presentation of shipping documents.

The letter of credit must be issued within a period of two (2) days following acceptance of the order by the TECHWAY Company. In case of non-compliance with the period of two (2) days, the TECHWAY Company will be released from all its obligations under the said order.

It is strictly forbidden to the Buyer to operate financial compensation and / or withholding of any kind on amounts caused or due by the TECHWAY Company.

6. Delivery

6.1 Terms and Conditions

Unless expressly stated otherwise, the delivery is made EX WORK Factory (i.e. EXW from the TECHWAY Company premises, according to the Incoterms version dated 2010). 

6.2 Deadlines

The deliveries are only performed based on available products, means and services produced within the TECHWAY Company. The TECHWAY Company is authorised to undertake deliveries globally or partially.

All of the deadlines are given for information purposes only, including those which are given upon acceptance of the order.  The TECHWAY Company shall endeavour to respect the deadlines; it shall not be under an obligation for delays brought to the delivery would not be exclusive to its role.

Exceeding delivery delays cannot give rise to damages, nor to any compensation and/or withholding any compensation and / or withholding on amounts of any kind caused by the TECHWAY Company or due to the TECHWAY Company nor to any cancellation of orders in-progress.

6.3 Risks

The transfer of risk of loss or damage is carried out to the Buyer when the above-defined EXW Factory event occurred (i.e. EXW from the TECHWAY Company premises, according to the Incoterms version dated 2010). Unless otherwise expressly stated, the Deliverables or Products supplied to the Buyer are transported at the risk of the Buyer that needs to perform all necessary assessments and confirm its reserves by extra-judicial document or by registered letter with acknowledgement of receipt with the transporter within the three (3) days which follow receipt of the deliveries.

6.4 Retention of ownership

Deliverables and Products which might be provided by the TECHWAY Company become the property of the Buyer after full payment and receipt of amounts owed by it, including those resulting from Services provided in support of the sale of Deliverables or Products or those resulting from any costs, fees, taxes or charges payable under the order or to pay under the rules of the exporting country or under those of an importing country or a transit country which are the responsibility of the Buyer.

In case of seizure or other third party intervention for any change or modification by any technique or process whatsoever on the Deliverable or Product sold, the Buyer will necessarily and immediately inform the TECHWAY Company. The Buyer further refrains to pledge or to assign as security any Deliverable or Product sold.

Until their full payment, the Buyer will not proceed to the resale of the Deliverable or Product sold by the TECHWAY Company. The claim by the TECHWAY Company on Deliverable or Product overdue will cause the immediate cancellation of the sale and any reversals costs shall be borne by the Buyer, without prejudice to any other right of action, and the ability for the TECHWAY Company to claim damages.

6.5 Specifications and documentation

(a) The Deliverables and Products provided to the Buyer are deemed compliant with the specifications as agreed between the Parties and to the documentation provided by the TECHWAY Company. When the TECHWAY Company is not the direct provider for the Deliverables or the Products, the related Deliverables and Products shall be deemed compliant to the specifications and documentation as submitted by the said provider.

(b) The TECHWAY Company shall endeavour to assure the update of the specifications and documentation related to the Deliverables and Products provided to the Buyer, as to enhancements and improvements thereof, without any obligation to provide these updates.

7. Acceptance and reserves

The delivery note or report needs to include the order reference, as well as any comments (protests or reserves) from the Buyer.

Notwithstanding any reservations the Buyer may submit to the transporters, in case of visible defects or deviations, any claim of regardless of its nature concerning the Deliverables or the Products delivered , shall be accepted by the TECHWAY Company only if it is carried out in writing, particularly by fax or post.

Concerning non-conforming Deliverables or Products, this claim must be carried out within ten (10) next days following receipt of the Deliverables or Products delivered.

It is up to the Buyer to supply all documentary evidence as regards the actual status of the visible defects or established failure.

The Buyer must provide any facility necessary to the TECHWAY Company to have all of the determinations carried out which might be necessary.

No return of Deliverables or Products may be made by the Buyer without prior written approval of the TECHWAY Company.

Expenses for returns shall only be borne by the TECHWAY Company in the event that a visible defect or established failure is exclusively due to the fact of the TECHWAY Company In case of visible defect or established failure that could be attributable to the TECHWAY Company, , the Buyer may solely request to the TECHWAY Company the replacement of the non-conforming Deliverable or Product and/or addition to be brought to fulfil the missing commitment, at the expense of the TECHWAY Company and within the limits of the price of the Services appearing in the order.

Any claim carried out by the Buyer under the above stated conditions does not suspend payment by the Buyer of the Deliverables and Products delivered which are not the subjects of reservations.

If the Buyer does not mention any reserve in the ten (10) days following the receipt of the Deliverables or Products delivered, the TECHWAY Company will be deemed to have fulfilled its delivery obligation without reservation and in a compliant manner.

8. Guarantee

8.1 Hardware warranty

Products for which their physical characteristics make them comparable to tangible goods are guaranteed against any defect of material or manufacture for a term of one (1) year, as from the delivery date, except by special contrary provision specified in the estimate.

Services as part of this hardware warranty have the effect of extending the term of the guarantee by three (3) months.

As part of the guarantee of hidden defects, or the issue of defective or non-conforming products, the TECHWAY Company shall be only obliged to assume responsibility for the costs of repair, parts and labour of the out-of-order equipment without the right for the Buyer to claim for any reimbursement nor any compensation or right to claim for damages against the TECHWAY Company. As part of the hardware warranty are the following;

The transport charges of the Buyer for transportation to the TECHWAY Company premises are borne by the Buyer.  Expenses for return of repaired equipment are assumed by the TECHWAY Company.

Extensions of the guarantee are possible; the cost of these extensions is for:

• 6% of the selling price, excluding taxes for a 12-month extension of the guarantee.
• 10% of the selling price, excluding taxes for a 24-month extension of the guarantee.

8.2 Return of out-of-order equipment

Products for which physical characteristics make them comparable to material or tangible goods and which would be out-of-order must be the subject of a statement to the technical services department of TECHWAY at the number below where an engineer shall be available during the office working hours, namely 9.00 A.M. – 5 P.M. from Monday through Friday, all year long except bank holidays and closures due to unforeseen circumstances.

Support team contacts:

• Email: support@techway.com
• Tel.: + 33 (0)1 64 53 37 90

Help with the diagnostics shall be provided and auxiliary solutions shall be sought in conjunction with the technical services department of the Buyer.

All available material means and human resources are implemented to provide an answer to any problem/question recorded by the support service of the TECHWAY Company within 48 hours.

If the malfunction is confirmed, an equipment return authorisation number (RMA) shall be given and must be recorded on the form which accompanies the out-of-repair equipment.

Under no circumstances, the TECHWAY Company shall be able to accept an equipment return without an RMA number, which shall then be returned to the shipper leading to a delay in handling of the repair directly attributable to the Buyer.

The repair period varies according to the Products, with the average time-frame being from four (4) to six (6) weeks.

8.3 Software warranty

Deliverables including intangible characteristics that make them comparable to software are warranted against defects in design or development for a period of one (1) year from the delivery date, unless otherwise specified in the estimate.

The software warranty covers both the software of third parties delivered with the equipment as well as the applications developed by the TECHWAY Company.

It covers the correction of critical bugs and the delivery of enhancements or updates that could include some corrections.

The warranty is twelve (12) months from the date on which software enhancements or updates are made available and six (6) months from the date on which corrections of bugs are made available.

The software warranty applies only to the delivered versions, without change or modification made by the Buyer, or by third parties other than the TECHWAY Company.

Deliverables including intangible qualities that make them comparable to software being the subject of a warranty shall be duly handled and referenced and shall be the subject of a delivery note or report bearing all of the notices pertaining to the delivered version.

8.4 Exclusions

The above warranties (from section 8.1 to 8.3 as aforementioned) do not apply to obvious defects or nonconformities or apparent defects visible on delivery which must necessarily be subject to reservations initiated by the Buyer within ten (10) days as aforementioned following the delivery of the related Deliverable or Product for their receipt.

Also are excluded from the above warranties (from section 8.1 to 8.3 as aforementioned), damage issued from misuse, abuse, normal wear and usage, accident, alteration, improper installation, lack of maintenance, deliverables or products or services provided by any third parties other the TECHWAY Company or damage occurred during transportation. The above warranties (from section 8.1 to 8.3 as aforementioned), are non-transferable and does not cover any subsequent purchasers or users other than the Buyer.

9. Invoicing

An invoice is established for each delivery and issued at the time of this latter.

10. Payment

The term of payment of invoices may not exceed forty-five (45) days end of month as from the date of receipt of the invoice or sixty (60) days as from the issue date of the invoice.

In case of periodic invoices, invoices or requests for payments, that term of payment shall not exceed forty-five (45) days as from the issue date of the invoice.

The invoice issued by the TECHWAY Company must be in accordance with the order in each point, augmented by additional Services agreed by mutual consent with the Buyer if that is the case.

11. Delay or defect

In case of delay in payment, the TECHWAY Company may suspend all orders in-progress, without prejudice to any other course of action and the ability for the TECHWAY Company to claim damages.

Any unpaid sum appearing on the invoice upon the expiry date, from the day following the settlement date carried on the aforesaid invoice, could involve as of right, the application of penalties for delay of an amount equal to the main refinancing rate of the European Central Bank increased by eight (8) points, unless otherwise agreed between the TECHWAY Company and the Buyer.

These penalties for delay shall be due upon simple written request of the TECHWAY Company. Furthermore, the Buyer must reimburse all of the costs and charges caused by the debt collection of sums due, including the fees and expenses of bailiffs, lawyers and broadly of legal officers.

The TECHWAY Company is entitled to obtain a minimum fixed amount of forty (40) euros for compensation related to enforcement of debts costs.

Any invoice covered by the enforcement of debts service, shall be augmented, as a non-reducible penalty clause within the meaning of article 1229 of the French Civil Code, of an indemnity fixed by default at 10% based on the sums owed in principle and interest.

In case of payment by commercial paper or letter of credit for export, failure to return the commercial paper or letter of credit will be considered as a refusal of acceptance that be deemed to a default. Similarly, when payment is staggered, non-payment of a single instalment will issue the immediate payability of the entire debt due in principal and interest to the TECHWAY Company, without the need of a formal prior notice to the Buyer.

In all the above cases, the sums due for other deliveries or for any other cause, shall immediately become payable, unless the TECHWAY Company decides to declare the termination of the order or decides to claim for the resolution of the sale.

Under no circumstances, can the payments be suspended or be the subject of any compensation without the express prior written consent of the TECHWAY Company. Any partial payment shall first be charged on the non-privileged portion of the debt, then on the sums whose payability is the oldest.

The TECHWAY Company does not intend to grant any discount for cash payment or starting from a date earlier than the one resulting from the General Sales Terms and Conditions.

12. Requirement of guarantees or settlement

Any deterioration of the credit of the Buyer shall be able to justify the requirement of cash settlement or payment of one or more interim before the completion of one or several orders.

The TECHWAY Company reserves also the right, any time, according to incurred risks, to demand guarantees or cash payment by commercial paper or letter of credit export payable on demand.

13. Industrial and intellectual property

All rights of industrial and intellectual property attached to the Deliverables or Products provided by the TECHWAY Company, remain at all times its property.

The Buyer shall not in any case use Deliverables and Products provided by the TECHWAY Company outside the scope and limitations contained in the orders approved between the TECHWAY Company and the Buyer and also the Buyer agrees not to claim any intellectual or industrial property in the Deliverables or Products provided by the TECHWAY Company.

This prohibition applies without time limit and without geographical limitation to the Deliverables or Products provided by the TECHWAY Company.

This prohibition does not apply to data and results of automatic data processing that can be obtained by the Buyer using the Deliverables and Products provided by TECHWAY Company.

This prohibition does not prevent the right for the TECHWAY Company to agree to the Purchaser under the terms and conditions of a license, maintenance and support agreement, a non-exclusive license to use the Deliverables and Products provided to the Buyer for its own industrial needs and in accordance with the documentation provided by the TECHWAY Company.

Each Party remains the sole owner of the industrial and intellectual property rights on its existing know how.

14. Confidentiality

The Buyer will consider as strictly confidential and shall refrain from disclosing any information, technical formula, mathematical formula or concept as may be disclosed during the use of the Deliverables and of the Products provided by TECHWAY Company.

For the purposes of this clause, the Buyer undertakes for itself, its employees, agents or any subcontractors.

This clause does not apply if it is demonstrated by the Buyer that the disclosed elements were already in the public domain prior to the disclosure or if it is demonstrated by the Buyer that it had been informed before or it had previously obtained the disclosed elements from third parties by legitimate means other than thought the TECHWAY Company.

Similarly, the TECHWAY Company undertakes to keep strictly confidential specifications related to the Deliverables and to the Products that are specific to the Buyer, as well as the data and results of automatic data processing that can be obtained by the Buyer using the Deliverables and the Products provided by TECHWAY Company and whose the TECHWAY Company could possibly have known.

This clause does not limit or restrict the right for the TECHWAY Company to refer the name of the Buyer in the course of commercial references which is expressly agreed and authorized by the Buyer.

15. Liabilities – Insurance

15.1 Responsibility of the Buyer

The Buyer, being a professional, it undertakes to implement and install the Deliverables and the Products provided by TECHWAY Company in accordance with instructions for use and specifications provided by the TECHWAY Company.

All warranty and liability of the TECHWAY Company are excluded for any damages arising from fault or negligence of the Buyer in the implementation and installation of the Deliverables and/or the Products provided by TECHWAY Company.

Similarly, all warranty and liability of the TECHWAY Company is excluded in case of any damages arising from fault or negligence of the Buyer, its employees, agents or subcontractors in the usage of the Deliverables and/or the Products provided by the TECHWAY Company.

In addition, all warranty and liability of TECHWAY Company are excluded if the Buyer does not immediately take appropriate measures to prevent the occurrence of damage and to allow the TECHWAY Company to intervene to solve incident of implementation, installation or use.

In case of damaging incident, the Buyer may have no right to compensation if the TECHWAY Company is not able to previously identify the causes and the causal link between the Deliverables or the Products provided to the Buyer and any potential damage suffered by the Buyer, and this with the assistance of an expert if necessary.

Any default from the Buyer by reference to these provisions, would be the sole responsibility of the Buyer and shall be deemed as a waiver of any action or recourse for further liability against the TECHWAY Company.

In all cases, all warranty and liability of the TECHWAY Company is excluded in case of change or modification of the Deliverables and/or the Products provided by the TECHWAY Company that could be performed by the Buyer itself, its employees, agents or sub potential-contractors or by third parties other than the TECHWAY Company.

In all circumstances, the Buyer is solely responsible for the data and usage of the results issued from the automatic processing of data that can be obtained by the Buyer using the Deliverables and/or the Products provided by the TECHWAY Company.

15.2 TECHWAY responsibility

The responsibility of the TECHWAY Company is strictly limited to the obligations as defined above.

Under no circumstances the TECHWAY Company will be obliged to indemnify consequential, incidental or not direct damage possibly incurred by the Buyer such as operating losses, loss of profits, loss of opportunity, commercial damage, and loss of earnings.

All warranty and liability of the TECHWAY Company are excluded in case of damage to a Deliverable or to a Product provided to the Buyer resulting from force majeure or fortuitous event.

Notwithstanding the foregoing, the TECHWAY Company assumes the liability that can be incumbent upon it in case of direct, actual and certain damage occurring to a Deliverable or to a Product, following a demonstrated failure caused by TECHWAY Company during the course of the Services, and thus only under the conditions below:

• When the value of the Deliverable or of the Product provided to the Buyer is less than 20,000 € inclusive of all tax, the liability of the TECHWAY Company, if it is established, may not be committed beyond the value taxes and expenses excluded of the alleged Deliverable or of the alleged Product to have cause damages.

• When the value of the Deliverable or of the Product is greater than 20,000€ inclusive of all tax, the liability of the TECHWAY Company shall be limited to 50,000 € excluding taxes and expenses.

These limitations do not apply for personal injury or in case of fraud or gross negligence, for which the TECHWAY Company will be responsible under the conditions of common law.

For any test loan performed without the prior order or the further order of the Buyer, no warranty, no liability is owed by the TECHWAY Company to the Buyer. .

Moreover, the TECHWAY Company reserves the right to refuse the Services for which the TECHWAY Company  might estimate having to insure the risks disproportionally in comparison with the Services requested by the Buyer, without any warranty or liability therefore. Any claim must be filed by the Buyer against the TECHWAY Company within a maximum period of one (1) year from the date the damage was known or should have been, otherwise the action for damages filed by the Buyer against the TECHWAY Company will be inadmissible.

In all cases, the Buyer and its insurers waive any recourse against the TECHWAY Company and its own insurers beyond the limits and exclusions as set out above.

16. Force majeure or fortuitous event

Every event beyond the control of the TECHWAY Company due to force majeure or fortuitous event (such as, but not limited to, strikes, floods, fires, disruptions or interruptions of transport difficulties supply of raw materials or energy), suspend the performance of its ongoing obligations for the duration of the force majeure or fortuitous event.

If the event of force majeure or fortuitous event should happen to last more than sixty (60) days as from the occurrence date of this former, the order concluded by and between the TECHWAY Company and the Buyer may be cancelled by registered letter with acknowledgement of receipt by the first Party to take action without any of the Parties being able to claim the granting of damages.

This termination shall take effect from the date of the initial delivery of the registered letter with acknowledgement of receipt revoking the aforesaid order or considered contract.

17. Jurisdiction – Protest

Will have exclusive jurisdiction in any dispute of any nature or dispute relating to the formation or performance of one or more orders, the competent courts located at the registered head office of the TECHWAY Company unless TECHWAY prefers to enter before any other jurisdiction possibly also competent.

This clause even applies in the event of emergency proceedings, incidental claim, or multiple defendants or third-party notice, and whatever the method and terms of payment, without which the attributive clauses of jurisdiction that may exist over the documents of the Buyer, may place an obstacle to the application of this clause.

The applicable law to orders or contracts of any kind between the TECHWAY Company and the Buyer is French law.

The election of domicile is executed at the head office of the Parties.

All rights reserved – TECHWAY – November 2012