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The sale of products and services (hereinafter the “Products”) by ACDS, as well as its departments, subsidiaries and related companies (hereinafter “ACDS”) to a client (hereinafter the “Client”) is subject to to these general conditions (“Agreement”) regardless of any other general conditions appearing in any purchase order, document or other communication from the Customer (hereinafter the “Order”). ACDS objects to these other conditions. This Agreement may only be modified in writing and signed by authorized representatives of ACDS and Customer.
1. ORDERS. Unless otherwise indicated, quotes provided by ACDS constitute invitations to tender and are subject to change at any time without notice. All Orders are subject to acceptance by ACDS. Any contract between the Client and ACDS is concluded following written acceptance by ACDS, acknowledgment of receipt of the electronic data interchange (EDI) or execution of the Order of the Customer and will be governed by this Agreement. All Orders concerning Products considered by ACDS to be non-standard or falling into the “NCNR” category (non-cancelable and non-returnable), cannot be canceled or returned. ACDS may use various methods to identify non-standard or “NCNR” Products, including quotes, catalogs, attachments or annexes. The Customer may not modify, cancel or postpone the delivery date of Orders for standard Products without the authorization of ACDS. ACDS reserves the right to distribute the sale of Products among its Customers.
2. PRICES. Unless otherwise indicated in ACDS's proposal, quote or invoice, prices are for the Products only and do not include taxes, freight, duties, taxes or other charges or fees such as those relating to additional services ( collectively the “Additional Fees”). Unless otherwise specified in ACDS's proposal, quote or invoice, Customer is responsible for all Additional Charges. Prices are subject to change due to manufacturer price increases, exchange rate changes, or quoting errors.
3. PAYMENT TERMS. Payment must be made according to the terms indicated on the ACDS invoice without compensation or deduction for withholding taxes or any other reason. On overdue invoices, ACDS may charge interest from the payment due date until the payment date at the rate of eighteen (18)% per annum or the maximum amount permitted by applicable law, plus attorney's fees and collection costs, with a minimum of forty (40) euros for sales made within the European Union as required by applicable law. ACDS may, at any time, modify the Customer's credit conditions. ACDS may allocate payments to any Customer account. In the event of non-payment by the Customer, ACDS may postpone or cancel any delivery in progress or the Order and require immediate payment of any overdue invoice. Unless otherwise provided by applicable law, any credit granted to the Client by ACDS expires after twelve (12) months if it is not used.
4. DELIVERY. Unless otherwise specified in writing provided by ACDS, any deliveries made by ACDS originating from the European Union are CPT to the customer's delivery address, and any deliveries made by ACDS originating from countries outside the European Union are governed by the EXW conditions of carriage upon exit from the ACDS warehouse or, for direct deliveries, EXW upon exit from the manufacturer's warehouse (INCOTERMS 2020). Delivery dates indicated by ACDS are estimates only and are subject to timely receipt of supplies by ACDS. ACDS is not liable or responsible for any costs, losses or damages arising from or relating to: (i) any failure to deliver the Products within the time limits specified for this purpose; (ii) any delay in delivery; (iii) any partial delivery; or (iv) any early delivery. The Customer undertakes to accept the Products notwithstanding any late, partial or early delivery. In the event of delay in part of the delivery relating to any Order, the Customer will not be entitled to cancel any other delivery.
5. TITLE OF PROPERTY. For sales made outside the European Union or Australia, title will be transferred to the Customer upon delivery of the Products to the carrier. For sales made in the European Union or Australia, as security of payment, title will pass to the Customer upon full payment for the Product by the Customer. In the event of resale, the Customer assigns all its rights in the receivables attached to ACDS until the day of full payment by the Customer. When the Product is transformed or combined with other elements (the “Transformed Product”), the property rights of ACDS constitute a part of the property rights of the Transformed Product corresponding to the value of the Product in relation to the value of the Product Transformed. This article does not apply to sales of Software (see following paragraph) and services.
6. SOFTWARE. Software is the machine-readable version (object code) of computer programs (“Software”). The Customer's use of the Software and any related documentation is governed by the license agreement applicable to the Software. Software integrated into or delivered with the hardware must be used exclusively with the hardware for which it was intended and cannot be transferred separately.
7. WARRANTY. The Customer acknowledges that ACDS is not the manufacturer of the Products. ACDS will transmit to the Customer all warranties, indemnities and transferable remedies attached to the Product which have been provided to it by the manufacturer, including, where applicable, any guarantee or indemnity for infringement of intellectual property, to the extent that it he is allowed to do so. If required by law, ACDS guarantees that at the time of delivery, the Products will conform to the specifications indicated by the manufacturer in the technical data sheet of the Products published by the latter. All warranty claims will expire after a period of three (3) months from delivery of the non-compliant Products. If ACDS performs value-added tasks such as integration work, web and roll packaging, or programming, ACDS warrants that such value-added tasks will conform to Customer's specifications which have been documented in writing and agreed to by ACDS for ninety (90) days following delivery of the Products by ACDS. The Customer will be considered the manufacturer of said value-added Products. In the event of a violation of ACDS's warranty, the Customer's sole recourse will be, at ACDS' option: (i) repair of the Products; (ii) replacement of the Products; (iii) re-execution of the value-added task; or (iv) reimbursement to the Customer of the purchase price of the Products. ACDS makes no representations or warranties regarding the Software and assumes no liability in this regard. Unless explicitly provided in the software license agreement, THE SOFTWARE IS PROVIDED “ AS IS ” WITHOUT ADDITIONAL WARRANTY.
ACDS PROVIDES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. EXCEPT WARRANTED AS EXPLICITLY IN THIS SECTION, THE PRODUCTS ARE PROVIDED “ AS IS ”.
8. RETURN OF PRODUCT.
(a) The Customer may return Products to ACDS provided that they include a Return Material Authorization (“RMA”) number issued by ACDS.
(b) An RMA will be issued by ACDS under the following conditions:
(i) Returns for Apparent Defect: receipt by ACDS of written notification of any damage relating to the external packaging, any damage relating to the Products, any incomplete Product or any other anomaly (“Obvious Defect”) within three (3) business days from the date of receipt of the merchandise; otherwise, the absence of notification amounts to acceptance of the Products by the Customer;
(ii) Product Warranty Returns: receipt by ACDS of written notification specifying the specific Product defect during the warranty period;
(iii) the defect notified under (i) or (ii) was caused exclusively by ACDS or the original manufacturer;
(iv) the defect notified under (i) or (ii) is not damage, shortage or other anomaly caused by the Customer, a carrier, charterer or any other third party;
(v) Customer must return the Products to ACDS in accordance with the instructions specified in the RMA issued by ACDS;
(vi) ACDS's examination of the returned Products constitutes confirmation that the return is eligible in accordance with this section.
(c) ACDS may return to Customer Products that are not eligible for return in accordance with this section, with postage remaining due, or hold such Products on Customer's behalf for collection by Customer, at its costs.
9. LIMITATION OF LIABILITY. For any action arising out of or relating to this Agreement, whether based in contract, warranty, tort (including negligence) or any other legal basis, ACDS shall in no event be liable for any consequential damages , special, incidental, punitive or consequential, including loss of profits or revenue, loss of data, loss of use, additional labor, repair, manufacturing costs, product recall costs, reputational damage and loss of customers, even if ACDS has been advised of the possibility of such damage and notwithstanding the circumstance that any remedy under this Agreement fails its essential purpose. In no event shall ACDS' liability arising out of or in connection with this Agreement exceed the total amount paid to ACDS for the specific Products in question. To the extent that ACDS cannot legally disclaim an implied or statutory warranty, the Customer's legal rights are not affected by this limitation of liability.
10. CIRCUMSTANCES BEYOND ACDS’S CONTROL. ACDS does not breach this Agreement and is not liable when it is prevented from performing its contractual obligations, if the failure or delay is due to or arises from any legal basis relating to force majeure, natural phenomena, the action or omission of the Client, the action of a governmental authority, including laws, regulations, orders and decrees, business interruptions, natural or man-made disasters, epidemics, pandemics, shortages of labor, energy, fuel, materials or Products, strikes, industrial action, criminal acts, war, terrorism, civil unrest, delays delivery or transportation, inability to procure labor, materials or Products through ordinary channels, communications and power failures, divine action or any other cause reasonably beyond its control. will.
11. USE OF PRODUCTS. The Customer undertakes to respect the Product specifications indicated by the manufacturer. The Products have not been approved for use in life support systems, for implantation on humans, in nuclear installations or any other application where a failure would result in a risk of bodily harm, death or serious property damage. The Customer accepts that any use or sale of the Products for the aforementioned purposes as well as non-compliance with the specifications provided by the manufacturer is at its sole risk. Customer agrees to indemnify, defend and hold harmless ACDS from any claim arising from or relating to: (i) ACDS' compliance with Customer's designs, specifications or instructions; (ii) modification of any Product by any party other than ACDS; (iii) use of the Products in combination with other products; (iv) use of the Products in an unauthorized manner as described above; or (v) the use of the Products and associated technologies in nuclear, biological or chemical weapons or missile systems (including ballistic missile systems, space vehicles and sounding rockets) or unmanned aerial vehicles capable of 'carry out similar actions, or in the development of weapons of mass destruction.
12. EXPORT CONTROL. Certain Products and related technologies (“Items”) sold by ACDS are subject to export control laws, regulations and orders in force in the United States of America, the European Union, Japan and/or other countries. other countries, excluding boycott laws (“Export Laws”). The Customer undertakes to comply with such Export Legislation and to obtain the licenses or permits required to transfer, export, re-export or import the Items. Customer acknowledges that associated technologies include “Technical Data” and “Technical Support”. Technical Data may be in the form of drawings, plans, diagrams, models, tables, engineering, design and specifications, manuals and instructions, in written form or recorded on media or devices such as disks, tapes or read-only memories. Technical Assistance may take the form of instructions, technical training, practical knowledge or consulting services. The Customer agrees not to export, re-export or transfer (or cause to be exported, re-export or transfer) directly or indirectly, the Items to any country, jurisdiction, individual, company, organization or entity to which/ which such exports, re-exports or transfers are restricted or prohibited by Export Laws, including sanctions or embargoes administered by the Government of the United States of America, the European Union, Japan or any other applicable government authority.
13. ELECTRONIC ORDERS. The terms of this Agreement also apply when any part of the sale or purchase transaction of the Products between the Customer and ACDS, including the acceptance by the Customer of the NCNR status of a Product or the forecasting of requests of the Customer, requires the use of EDI, the Customer's internal portal or the portal of a third party, or any other electronic means (hereinafter "Electronic Order"). Acceptance by the Customer of ACDS's request for confirmation or clarification regarding information relating to Electronic Orders, in writing, email or any other EDI, will be enforceable against the Customer.
14. RESPECT FOR THE ENVIRONMENT. Where applicable, the Customer is responsible for all obligations and responsibilities provided for by (i) the European Directive on electrical waste and electronic equipment (2012/19/EU), (ii) the European Directive on packaging waste (94/62/EC) and (iii) the European Battery Directive (2006/66/EC), as amended, as well as all national transposition measures in force at any time.
15. GENERAL.
A. This Agreement is governed, interpreted and applied in accordance with the law of the country where the ACDS entity having accepted the Customer's Order is located (hereinafter “Competent Jurisdiction”) without regard to the rules governing conflicts of laws. In the event that the Competent Jurisdiction turns out to be France, the applicable law of the Bourg-En-Bresse commercial court will apply. The courts of the Competent Jurisdiction shall have jurisdiction over all disputes arising out of or relating to this Agreement. Each party consents to the exercise by such court of personal jurisdiction over it and each party waives any objection it may have to territorial jurisdiction, personal jurisdiction, improper forum and any other similar doctrine. or related. Each party hereby waives, to the fullest extent permitted by applicable law, any right it may have to a jury trial in any dispute arising, arising out of, or relating, directly or indirectly, to this Agreement. THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DO NOT APPLY TO THIS AGREEMENT.
B. Customer may only assign this Agreement or any rights or obligations hereunder upon receipt of written permission from ACDS. ACDS Affiliates may discharge ACDS' obligations hereunder.
C. If any provision of the Agreement should be declared invalid by a court of competent jurisdiction, the parties will negotiate in good faith to modify this Agreement so as to give effect as closely as possible to the original intention of the parties, throughout extent permitted by applicable law. The unenforceability or nullity of one of the conditions or provisions hereof will not affect the remainder of the other conditions or provisions.
D. The Products, including Software and intellectual property, are subject to the applicable rights of any third party, such as patents, copyrights and/or user licenses, which the Customer undertakes to respect.
E. The Client undertakes to comply with applicable regulations, rules and laws, including but not limited to anti-corruption laws such as the US Foreign Corrupt Practices Act, UK law UK Bribery Act” as well as local legislation transposing the OECD Anti-Bribery Convention.
F. Customer agrees to collect, process and transfer all personal data provided by ACDS under this Agreement in strict accordance with applicable law, including, but not limited to, United States law of 2018 California Consumer Privacy Act (“CCPA”) and the General Data Protection Regulation (EU) (2016/679) as well as the applicable national transposition law (“GDPR”). Customer agrees to use and retain personal data for the sole purpose of facilitating communication and collaboration and to procure ACDS Products under this Agreement and for no other purpose. If personal data of EU residents is transferred to countries outside the EU/EEA, the Client undertakes to ensure by appropriate means that such personal data continues to be handled and processed in accordance with the data protection principles of purpose limitation and necessity; accuracy, quality and proportionality of data; security and data confidentiality. The rights of data subjects (access, rectification, deletion and opposition) must be guaranteed. In accordance with the CCPA, Customer hereby certifies its understanding of the obligations and restrictions contained in this section and agrees to comply with these obligations and restrictions.
G. The parties agree that electronic signatures may be used for any purpose under this Agreement and agree that electronic signatures are legally valid, effective and enforceable for all purposes hereunder.
H. Information regarding the Product (statements or notices (technical or otherwise), advertising content, and any information relating to the Product's specifications, its characteristics, its classification in export/import controls, its use or its compliance with legal or other requirements) are provided by ACDS “ AS IS” and do not form part of the properties of such Product. ACDS does not guarantee the accuracy or completeness of any Product information, and DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES UNDER ANY PRINCIPLES REGARDING THE PRODUCT INFORMATION. ACDS recommends that the Customer validate the Product information before using or relying on this information. All Product information is subject to change without notice. ACDS cannot be held responsible for typographical errors or other errors or omissions in the information provided on the Product. ACDS employees, representatives and/or agents have no authority to make any representations regarding the Products other than those specified in this Agreement or a written and signed amendment hereto. ACDS disclaims all liability for any statement or information which does not form part of this Agreement.
CONTACT DETAILSQuestions regarding the General Conditions of Sale and Use should be sent to us at contact@acds.fr.