I. GENERAL

The following Terms and Conditions (“Terms”) are applicable to all sales made by SORHEA, (“Seller”), a French company with offices located at 1, rue du Dauphiné, 69120 Vaulx-en-Velin, France, to any individual or entity with whom Seller has executed a sales contract or is negotiating a sale (“Buyer”).The acceptance of any order is expressly conditioned upon Buyer’s consent to these Terms. No interlineations, deletions, modifications or amendments to these Terms shall be binding on Seller unless agreed to and accepted in writing by Seller.

All sales are subject to written confirmation by Seller. Receipt by Buyer of Seller’s acknowledgment of an order without prompt written objection thereto shall constitute acceptance by Buyer of these Terms.

Buyer must respond to Seller’s notice of acknowledgment or order acceptance within five (5) business days of receipt of such acknowledgment or Buyer will waive its right to cancel the order.

II. PRODUCT PRICE QUOTATIONS

The quotations or tenders are noncommittal and non-binding in nature. No contract shall arise until a written acknowledgment from Seller accepting the Buyer’s order, is sent by Seller to the Buyer. In the absence of said written acknowledgment, a contract will form upon presentation of the goods or equipment that is the subject of the order (the “Product(s)”). Because no contract is formed until Seller acknowledges Buyer’s order in writing, or until the Products have been presented to Buyer, these Terms shall supersede any and all terms of Buyer. These Terms shall expressly prevail over all other writings, documents and agreements between the parties unless such documents are signed by an authorized agent of the Seller. Seller will be entitled to adjust agreed prices on the basis of the average change in the cost price of the Products or services to be delivered and/or activities to be performed by the Seller. The adjustment of agreed prices and rates will apply as of the beginning of the first month after the Buyer has been notified in writing of the adjustment. Price quotations are understood to be exclusive of taxes, Ex-Works SORHEA Warehouse in Vaulx-en-Velin, France. All taxes, duties, tariffs and levies due on orders will be the obligation of the Buyer. The weights, dimensions, capacities, performance ratings, characteristics and other data on Seller’s catalogues, prospectus, circulars, advertisements, price lists and instructions sheets are mentioned only as general information. They are only approximate and shall not bind Seller. In addition, to guarantee a constant improvement of its Products, Seller can directly modify without prior notice, the technical or aesthetical characteristics of its Products, including those of an order in progress.

III. DELIVERY

The choice of the incoterms is defined by the seller. In the event the Buyer requests alternative shipment or routing, extra packing, shipping and transportation charges may apply to Buyer’s account. Seller is not responsible for any damage in shipment. The Products are shipped at the risk and peril of the Buyer. In no case shall acceptance of the Products be refused except for reasons of non-compliance.

IV. DELAYS IN DELIVERY

Any specific shipping date designated in writing signed by the Seller shall be interpreted as estimated and in no event shall dates be construed as falling within the meaning of “time is of the essence”. The Seller shall not be responsible for any delays in filling orders, nor shall it be liable for any loss or damages resulting from such delays. If a specific shipping date is specified in the order or later agreed to by the Seller, then the Seller shall not be liable for any delays in filling such order caused by delays resulting from any and all conditions beyond the control of Seller, including but not limited to, (a) accidents to or malfunctions of Seller’s or Seller’s subcontractors’ or suppliers’ machinery; (b) differences with employees, strikes, or labour shortage; (c) fire, floods, hurricanes or other natural disaster; (d) supplier or subcontractor delays, including any quantity or quality defects; (e) delays caused by an instrumentality of the French Government or any government or any agency; (f) delays in transportation; (g) restriction imposed by any governmental regulation, whether valid or invalid; or other cause beyond the control of the Seller, or any condition without the sole fault or negligence of the Seller.

Under no circumstances shall Buyer or Buyer’s customer be entitled to any damages for Seller’s failure to ship on time, and Buyer agrees to indemnify, defend and hold Seller harmless against any costs and expenses related to any claims for lost profits or any other consequential damages based on Seller’s failure to deliver timely.

If Buyer does not accept or pick up the Products at the date specified in the order or later agreed to by Seller, the delivery of the Products shall nevertheless be deemed accepted by Buyer who shall therefore pay for the Products delivered. The storage of the Products arranged by Seller will be at the risk and expense of the Buyer. Seller shall further be entitled, to the exclusion of any other remedy for the Buyer’s failure to take the products, to recover any expenses properly incurred in performing the contract and not covered by payments received for the Products delivered.

The seller reserves the right to request financial compensation from the buyer to cover storage costs in case the order could not be collected at the date indicated on the acknowledgement of receipt given to the buyer.

V. PAYMENT

Unless otherwise stated, payment for the Products shall be received by Seller upon the date of delivery to Buyer. When an advance deposit has been made with an order, the balance, if any, shall be remitted to Seller upon the date of delivery to Buyer. In the event Seller feels insecure concerning payment by Buyer, Seller reserves the right to require cash payment. The price does not include any present or future Federal, State or Local property, sales, use, excise, license, gross receipts or other taxes or assessments which may be applicable to, imposed upon or result from this transaction or any services performed in connection with these Terms and/or the Products. The Buyer agrees to pay any such taxes or reimburse payment of such taxes by Seller.

The Buyer agrees to pay any such taxes or reimburse payment of such taxes by Seller. In the event payment is not received when due, interest shall be due at the rate of one and one half percent (1.5%), or the maximum permitted by law, on the unpaid portion of the invoice sum for each period of thirty (30) days or part thereof from the due date. Seller has the right to refuse to deliver Products or services if Buyer is past due on any of its debts to Seller. Furthermore, Seller shall have the right to retake all Products immediately unless other written arrangements have been made concerning payment only if Buyer is past due. Buyer agrees to make all Products available, shipping ready, for Seller, within five (5) days of receiving notice from Seller of its intention to retake the Products.

Buyer shall pay all of Seller’s costs of collection of any amounts past due, including, but not limited to attorneys’ fees, court costs, witness fees, travel and lodging, etc. Seller will be entitled to apply payments made by Buyer first to pay those claims it deems appropriate, including interest, late charges, costs of collection, and all such similar expenses.

Buyer, or its affiliates or assignees, will not be entitled to suspend its payment obligations to Seller, claim any right to compensation and/or to offset its payment obligations with any obligations of Seller to Buyer, with such obligations being those set forth in these Terms or other purchase contract between the Buyer and Seller. Buyer will not be entitled to dissolve the contract with Seller if Buyer is in default.

If Buyer does not fulfil its payment obligations to Seller completely or within the applicable payment period, Seller will be entitled to suspend its obligations to Buyer completely and/or not to perform them.

VI. SECURITY INTEREST

In order to protect and secure payment of all debts due and owing from Buyer and until Seller has been paid in full, Buyer hereby grants to Seller a security interest in the Products, and all proceeds and all accounts receivables resulting from the sale of the Products. Seller’s written confirmation of the order shall constitute a fully executed security agreement for purposes of perfecting the security interests created herein. In connection therewith, Buyer hereby authorizes Seller to take all necessary steps to file such financing statements and exhibits with the proper authorities, including the filing of a financing statement to perfect its security interests.

Until the Buyer has paid for the Products in full, Buyer shall not pledge, mortgage, encumber, or create or suffer to exist a security interest in the Products in favour of any person other than Seller unless written approval of such other security interest is given by Seller.

Additionally, Buyer agrees to keep the Products insured to their full value until payment is received by Seller. In the event Buyer sells the Products to a third party before payment in full is received by Seller, Buyer agrees to secure its security interest in the Products at the time of sale to its customer in order to protect Seller’s interests to the greatest extent possible.

VII. INSPECTION; RETURNS

Unless Seller receives a written complaint with full particulars from Buyer regarding any defective Products or other complaints within five (3) business days from the date the Products are delivered, the Products shall be deemed to have been delivered in good condition and that the delivery is accepted. All returns of Products shall be the subject of a prior written agreement from us (requires a RMA number). Acceptance of the returned Products does not imply acknowledgment by the Seller of the reason for the return. Products returned by the Buyer to the Seller will remain at the Buyer’s risk and the Buyer will owe the agreed amounts until the Seller has credited the Buyer for these Products. The Products accepted by the Buyer from the Seller, which the Buyer has put fully or partly into use, treated, processed or delivered to others will be considered to conform to the contract. Seller shall have the right, but not the obligation, to inspect any Products the Buyer alleges are defective and/or non-conforming. Any such return of goods must be made within thirty (30) days following delivery of the Products. Seller shall determine in its sole discretion whether any returned Products alleged to be non-conforming or defective in materials or workmanship are non-conforming. In the event Seller determines the Products are defective or non-conforming, Seller will decide in its sole discretion whether to replace or reimburse the Buyer its costs in the amount of the paid invoice, to the exclusion of any other provisions herein. A 10% reduction charge will be applied to each credit note created for returned standard products (meaning products listed in the official public price list). Specific products (meaning products not listed in the official public price list) could be returned within 30 days upon delivery date with a 50% reduction charge. Products returned more than 30 days after delivery date, will not be accepted.. Notwithstanding the above, Buyer must notify Seller of any alleged non-conformity of the Products within five (5) business days of delivery as provided in this section.

VIII. LIMITATION OF LIABILITY AND DISCLAIMER

The maximum liability of Seller under any circumstances shall be the price actually paid by Buyer to Seller for the Product that is proven to be defective exclusive of taxes and fees. SELLER SHALL NOT BE SUBJECT TO ANY OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW, WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY SELLER, OR ANY UNDERTAKING, ACTS OR OMISSIONS RELATING THERETO.

Without limiting the foregoing, Seller specifically disclaims any liability for property or personal injury damages, penalties, special or punitive damages, damages for lost profits or revenues, services, down time, shut down or slow down costs, or for any other types of economic loss, and for claims of BUYER’s customers or any third party for any such damages. SELLER SHALL NOT BE LIABLE FOR AND DISCLAIMS ALL CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER. SELLER NEITHER ASSUMES NOR AUTHORIZES ANY THIRD PARTY TO ASSUME FOR IT, ANY COMMITMENT OR ASSUMPTION OF LIABILITY OF ANY KIND IN CONNECTION WITH ITS PRODUCTS.

IX. INTELLECTUAL PROPERTY RIGHTS

All intellectual property rights to, ownership of, and interest in all Products, trademarks, trade names, logos, distinctive marks, designs, and other materials created and/or made available by the Seller hereunder or within the framework of the relationship between Buyer and Seller are vested exclusively in the Seller. The Buyer shall not reproduce, transfer, grant, assign, license or use the Products, distinctive marks, and designs and other materials created and/or made available by the Seller and/or otherwise act as maker of and/or party entitled to such rights, except in accordance with these Terms.

The Buyer shall not remove or alter indications concerning intellectual property rights and concerning the confidential nature of information from Products, services, programs, works, distinctive marks, inventions, designs, models and other materials created and/or made available by the Seller and Products delivered. The Buyer shall not alter, or have altered, modify, or have modified, adapted or otherwise reconfigured, the Products, services, programs, works, distinctive marks, inventions, designs, models and other materials created and/or made available by the Seller. Seller makes no warranty concerning the appropriateness of the Products or services to the purposes for which Buyer or its customer are acquiring same. Moreover, Seller makes no warranty that the Products or services or other intellectual property of Seller does not infringe the rights of third parties.

X. CANCELLATION PRIVILEGES

Seller may cancel any contract if Buyer is in default of the payment of any obligations pursuant to or any contract between the parties, or if in the sole judgment of Seller, Buyer’s financial condition and responsibility has become materially impaired. In addition, Seller shall have the right to recover damages for non-performance, and any unpaid instalments due on account of this or any other contract between the parties shall become immediately due and payable. If the Buyer cancels the contract for reasons other than those provided in these Terms, the Buyer shall be liable for a cancellation fee equal to Twenty-Five Percent (25%) of the amount of the order, not including tax, and will be obliged to compensate the Seller for any costs incurred by the Seller in connection with making the offer and entering into the contract and the damage and/or loss arising from the cancellation.

The Seller will be entitled to terminate the contract unilaterally with immediate effect, fully or in part and/or to suspend performance of its obligations under the contract with immediate effect if:

1. the Buyer has failed to fulfil one or more of its obligations under this or any other contract or sales terms;
2. Buyer has suspended payments or has sought the protection of the Bankruptcy Courts;
3. a petition for the involuntary bankruptcy of the Buyer has been filed;
4. the Buyer’s property on Seller’s premises has been attached in execution;
5. a resolution for the dissolution and/or winding up of the Buyer has been adopted;
6. the enterprise operated by the Buyer has been fully or partly transferred to a third party without consent of Seller.

The Seller will never be liable with respect to the Buyer for any damages arising from termination of the contract or from the suspension of obligations under the contract for the aforementioned reasons. If the contract is terminated, performance of the contract already received by the Buyer and the payment obligations of the Buyer in connection with it will remain. The amounts invoiced by the Seller for performance prior to or upon termination of the contract will be immediately due and payable after termination. Buyer agrees to pay any of Seller’s costs, damages, attorneys’ fees and other expenses associated with Seller’s termination of any contract with Buyer pursuant to the terms of this section.

XI. FORCE MAJEURE

If Seller is temporarily unable to perform this Agreement because of Force Majeure, it will be entitled to suspend performance of the contract for as long as the Force Majeure lasts. If Seller is permanently unable to perform any of its obligations to Buyer because of Force Majeure, it will be entitled to cancel the specific order with immediate effect and without any damages whatsoever. Buyer agrees to indemnify, defend and hold Seller harmless against any claims made by third parties based on whole or in part on Seller’s inability to perform because of Force Majeure.

XII. GOVERNING LAW: CONFESSION OF JUDGMENT

These Terms and the transactions contemplated herein, any claim, dispute, or controversy (whether in contract, tort or otherwise, whether pre-existing, present or future, and including statutory, common law and equitable claims) between the Buyer and the Seller arising from or relating to these Terms, their interpretation, or the breach or validity thereof, shall, except to the extent that the Seller is expressly prohibited by applicable law, be governed by the laws of France.

The Buyer hereby consents to the jurisdiction of the courts of Lyon, France, in connection with any dispute, controversy, action or other matter relating to or arising out of the Terms.

For sales of the Products in the European Union or outside the European Union, these Terms and all transactions between the Seller and the Buyer are governed by the French laws, without reference to conflict of laws principles.

XIII. ARBITRATION

Any controversy or claim between Seller and Buyer or any controversy or claim otherwise arising out of or relating to the Terms and any agreement subject to these Terms, shall be settled by binding Arbitration in the Court of Lyon, France in French ,or in English after Seller’s Agreement, according to the rules of the French Arbitration Laws. Notwithstanding the foregoing and without having to first enter into an arbitration proceeding, Seller reserves the right to bring suit against Buyer for monies due Seller in the courts of Buyer’s jurisdiction, or where Buyer has assets.

XIV. ENTIRE AGREEMENT

These Terms constitute the sole terms and conditions of the contract between the Buyer and Seller. No other terms, conditions, or understanding, whether oral or written, shall be binding upon the Seller, unless hereafter made in writing and signed by Seller’s authorized representative and, in the case of printed matter, also initialled by such representative next to such printed term or condition.

XV. SEVERABILITY

Should any provision of this Agreement be judicially declared unenforceable, that provision shall be deemed stricken and the remainder shall continue in full force and effect insofar as it remains a workable instrument for effectuating the intents and purposes of the parties. The Parties further agree to renegotiate any so severed provision to bring the same within applicable legal requirements to the greatest extent possible.

XVI. ASSIGNMENT

SORHEA warrants each of its products to be free from defects in materials and workmanship under normal use and service for a period of two (2) years after delivery to the purchaser (the “Warranty Period”).

The Seller Warranty is a manufacturer Warranty, which follows the below procedure:

• Diagnosis of the failure is performed by the Buyer, possibility involving phone communication with the Buyer technical department.
• Repair of Breakdown on site is performed by the Buyer by replacing the components judged defective taken from its stock of after-sales pieces. The Buyer shall have a stock to cover after-sales of installed equipment.
• The returned of defective parts is carried out by the Buyer at its own expenses (shipping costs prepaid). Warranty returns must first be authorized by SORHEA. (A RMA number shall be asked by the Buyer to SORHEA.). All products returned without a RMA number will not be treated.
• This Manufacturer Warranty does not cover the breakdown coming from power surge, mis-use of the products, natural wear, wrong installation of the products, a change of components essential to the proper functioning of the products without the consent of the Seller, vandalism, or damages due to water in case of flooding or submersion. Seller shall not be held responsible for an interruption or network disturbance that could affect product performance if the interruption or network disturbance is not a result of the malfunction of the product.

This warranty states the exclusive remedy of the purchaser, and the extent of Sorhea’s obligations, with respect to the products described in the quotation and is in lieu of all other warranties, express, implied or statutory, oral or written, including but not limited to, any warranty of merchantability or fitness for a particular purpose, each of which Sorhea expressly disclaims.

Buyer understands and agrees that:

1. under no circumstance shall Sorhea be liable for any incidental, indirect, consequential, punitive or similar damages, regardless of the cause, and
2. Sorhea’s liability under the quotation or purchase order is strictly and expressly limited to the warranty obligations expressed herein. Sorhea neither assumes nor authorizes any other person to assume for it any other warranty concerning its products.

The two (2) year guarantee period applies to all products sold by the Seller, excluding consumables (batteries, power supply pack, …)