TERMS OF PURCHASE

Article 1 - APPLICATION OF THE TERMS OF PURCHASE OPPOSABILITY

These terms of purchase define the means for the placing and execution of orders for Supplies destined for FACTEM. The term Supplies means in any case all Supplies of tools, equipment, parts, raw materials, software, or services. The particular conditions appearing on the order complete and may deviate from these terms; in case of contradiction, they prevail over the terms of purchase. Any clauses or conditions appearing on letters, invoices and other documents emanating from the Supplier that are not in accordance with the conditions of the order are not enforceable against FACTEM. The fact that FACTEM does not invoke at a given moment any one of these terms of purchase cannot be interpreted as a waiver of the use of this condition at a later date. If any of the provisions of these Terms of Purchase prove null or not applicable, only this provision will be deemed unwritten. Notwithstanding anything to the contrary in its terms of sale, the Seller acknowledges that acceptance of the order implies (i) the Seller's express waiver of all of its terms of sale and (ii) express acceptance of the present terms.

Article 2 - ORDERS

Orders, contracts and calls for deliveries, as well as their possible modifications, require written correspondance, but can also be done by digital data transfer (EDI, email or fax). To be considered valid, purchase orders must be confirmed by FACTEM order form and issued by one of FACTEM's purchasing departments. Any liability is declined by FACTEM in case a Supplier has begun to execute an order that does not have this form. The Supplier must acknowledge receipt of the order in writing, no later than eight (8) days after the date of issue, failing which the order will be deemed accepted without reservation. The acceptance of the order or any commencement of execution implies for the Supplier adhesion without any reserve to the present terms and to all the clauses of the order. In the event that the Supplier issues reservations, the latter must, in order to be admissible, be the subject of a reasoned letter, distinct from the Supplier's standard acknowledgment form and accepted by FACTEM in writing. Any stipulation of the acknowledgment of receipt of the order modifying, amending or contradicting any of these Terms of Purchase will be considered as unwritten.

Article 3 - DELIVERY

Deliveries are made, unless otherwise agreed, according to orders and requests for deliveries which are established by FACTEM for each of the Supplies to be supplied and / or services to be rendered and for any specific tools. Any delivery with modifications or deviations from the order data, without the prior approval and approval of FACTEM, will be systematically refused.

Article 4 - DELIVERY TIME

The contractual delivery date appears on the order. This is the date on which the Supplier must place the Supplies, in quality and quantity, at FACTEM's disposal at the address specified in the order. In order to be able to adapt to the requests of its customers, FACTEM reserves the possibility of modifying the quantities and the dates of delivery, initially agreed. Unless otherwise agreed, the Supplier will accept at least the following firm order variations:

Contract Date

Possible variation

Up to- 3 Months

All

Between - 3 months and - 2 months

from + 50% to - 100% of planned deliveries

Between - 2 months and - 1 month

from + 50% to - 100% of planned deliveries

 

 

Any delivery anticipated in relation to the date agreed in the order without the prior consent of FACTEM, may be refused.

Article 5 - DELAY IN DELIVERY

The Supplier shall immediately inform FACTEM of any foreseeable delay in delivery and the measures taken to rectify the situation (means of production, express transport, etc.), all additional expenses resulting therefrom being borne by the Supplier. In addition, non-compliance with the deadlines, or lack of quality of the Supplies, even for only part of the order or the program in question, entails the automatic application of late penalties; after default notice for a period of one week, FACTEM reserves the right to pass on to the Supplier the penalties applied by its own customers due to the Supplier's default and to apply to it equivalent penalties of delay, deducted from the billing, at a percentage of the value of the goods late delivery delayed. In the absence of a different stipulation, this percentage is one-half percent (0.5%) per calendar day of delay for the first five (5) days, and increased to one percent (1%) per day beyond. The above provisions do not preclude the exercise of the right of termination under Article 20. The Supplier may at any time move or exercise due diligence to ascertain the lack of quality of the Supplies or the non-respect of the deadlines.

Article 6 - PACKAGING AND TRANSPORT

Except in the case of specific conditions or specific recommendations by FACTEM, the Supplier shall deliver the Supplies in an appropriate packaging, taking into account the nature of the Supplies and the precautions to be taken to protect the Supplies against inclement weather, corrosion, loading accidents, transport and storage constraints, vibrations or shocks, etc. In any case, the Supplies shall be packed, marked, and generally prepared for shipment (i) in accordance with commercial practice, (ii) acceptable to carriers for least cost shipping, (iii) suitable to ensure the arrival of the Supplies in good condition at their destination. In addition, the Supplies ordered are transported under the responsibility of the Supplier, who chooses their courrier, at their own expense takes out insurance policies necessary to guarantee the transport. As a result, damaged goods will not be accepted by FACTEM. Except for special provisions, Supplies of foreign origin will be delivered '' Delivered, Duty Paid '' (DDP location of recipient, according to Incoterms CCI in force on the date of the order). The identification of the packaging and packing unit will be carried out according to the GALIA standard or, failing that, ODETTE.

Article 7 - DELIVERY GUIDELINES

Each delivery shall be the subject of an established bill of lading and shall be attached to the Supply in an envelope affixed to the outside of the parcel. The delivery slip will show the order number, the item number(s) of this order, the FACTEM code, the name of the Supply, the marking, the quantities delivered and the name of the courrier. Suppliers in the European Union must also indicate the Combined Nomenclature code, the net and gross weight and the origin of the Supply. The absence of a delivery bill or an incomplete copy of it will result in a delay in the payment procedure. Also included with each copy are the certificates and minutes of the checks carried out by the Supplier in accordance with the provisions on quality control. The Supplier shall only bear the penalties resulting from any discrepancy noted by the Customs Administration between the nature and / or the quantity of the Supply and the indications on the delivery note or the invoice.

Article 8 - REFUSAL OF DELIVERY

FACTEM reserves the right to refuse the Supplies delivered: (i) in the event of an obvious defect, (ii) in the event of non-compliance with the FACTEM Supply Specifications, (iii) in the event of non-compliance with the technical specifications of the Supplier, (iv) in the event of non-compliance with the standards in force, (v) in the event of modification of the manufacturing processes, (vi) in the event of deterioration, (vii) in the absence of all or part of the documents referred to in section 7, (viii) in the case of partial delivery, unless FACTEM has given its prior consent, or of late delivery, (xix) in the case of delivery to a different address than agreed address. Any rejected Supplies must be removed by the Supplier within eight (8) days of notification by FACTEM of the refusal of delivery. Otherwise, it will be returned to them at their expense and risk. Any delay following a refusal of delivery will be governed by the provisions of Article 5, and FACTEM also reserves the right to refuse any excess quantity. If this excess quantity is retained, to be used on another delivery or on another order, it will have to be billed separately, and will only be settled according to the new contractual date.

Article 9 - QUALITY

The Supplies shall be in accordance with the indications, plans, standards, specifications of the order, the FACTEM purchase specifications or the technical specifications of the Supplier if they are accepted as reference specifications by FACTEM, or any other documents referring to it. The above detailed compliance obligation of the Supplier is an obligation of result. The possible surveillance exercised by the Official Services and the control carried out by FACTEM services do not relieve the Supplier of this obligation. The Supplier is therefore responsible for the quality of the Supplies and Services and thus establishes a quality control and management system adapted to the criteria defined by the technical documents. The supplier must keep records related to Supplies and Services for FACTEM for 10 years unless otherwise specified; any elimination before the scheduled date must be subject to a FACTEM agreement. In case of obligation to supply initial samples or standard parts, the order is placed subject to their acceptance by FACTEM. The Quality Assurance Department of FACTEM, alone or with other members of FACTEM, its own customers, accreditation bodies or regulatory agencies, reserves the right to carry out checks at Supplier or third parties, if the Supply is designed, manufactured or assembled by third parties. For this purpose, the Supplier shall leave them free access to all the premises and documents inherent to the production of the Supply.

Article 10 - QUALITY CONTROL

Supplies delivered are subject to acceptance by FACTEM. Reception by FACTEM is final only after quantitative and qualitative checks carried out by our quality department or, if necessary, by our technical services for the services. FACTEM will have the right to refuse Supplies that do not comply with the order, specifications or prior indications. In case of non-compliance identified by FACTEM, the following procedure will be applied: (i) Analysis by the Supplier of the defects found and research of the causes, (ii) Development and implementation of an improvement plan aiming at the implementation in accordance with the Supplies, within a fixed time. Refusal of the Supplies shall be promptly notified to the Seller by registered letter, fax, telex or electronic message confirmed by registered letter. The Supplier shall take back, at its own expense, the Supplies delivered and refused within ten (10) working days from the date of receipt of the notification of refusal. After ten (10) days, FACTEM will return the Supplies to the Seller at the expense of the Seller. Any advance payment that results in a cash discount will not result in acceptance of the Supplies by FACTEM. The non refusal of the Supplies can not be invoked to limit the warranties defined in the WARRANTY section. The Supplier may move at any time to ascertain the state of the Supplies within one week of receipt of the refusal order. Where the Supplies have been found to be defective or non-conforming, according to its quality control procedures, FACTEM reserves the right, and without waiver of damages, to (i) cancel or suspend the balance of the Supplies in process, (ii) and / or to require the Supplier to replace the offending Supplies within the period agreed in the order or the delivery program, (iii) and / or to perform or have the sorting operations carried out at the expense and under the Supplier's responsibility and necessary alterations, (iv) and / or to pass on the costs generated by incidents leading to a break in flows and / or other problems at FACTEM and / or the end customer. The Supplier undertakes to assume in particular the financial consequences and to compensate FACTEM upon receipt of the corresponding invoice.

Article 11 - TRANSFER OF PROPERTY AND OF RISKS

The transfer of ownership takes place upon delivery of the Supplies. No retention of title clause stipulated by the Supplier may be enforceable against FACTEM unless it has been expressly accepted in writing. The Supplier undertakes that no retention of title clause shall be stipulated by its own Suppliers for any item delivered by said Suppliers and included in the Supplies subject to the order of FACTEM. For purchases made within the French territory, the transfer of risks takes place upon delivery of the Supplies at the place indicated on the order after signature of the delivery note by FACTEM. For purchases made from a foreign country, Incoterm will be referred to on a case-by-case basis (Incoterms 2010 edition). If no Incoterm 2010 is applicable, or in the absence of any indication, the transfer of risks will occur at the same time as the transfer of ownership.

Article 12 - SUBCONTRACTING

Work that may be subcontracted by the Supplier shall be carried out in accordance with the provisions of Law No. 751334 of 31 December 1975. The Supplier shall be liable to FACTEM for the proper performance of any subcontracted work.  The Supplier shall not, without the prior written consent of FACTEM, subcontract, directly or indirectly, at any level whatsoever, the execution of all or part of the Order. The Supplier shall defend and indemnify FACTEM against any claim by its own co-contractors and / or subcontractors.

Article 13 - TOOLING

Tooling specially made for the execution of orders from FACTEM shall belong to it by right and must be returned to it at their first request within a week. The care and maintenance of molds or tools will be provided by the Supplier at its expense and risk according to the provisions of Articles 1927 and following of the Civil Code concerning the obligations of the depositary. In the case of separate invoicing of molds and tools, this must be done at the latest when invoicing the first delivery of series. Tooling that is financed in whole or in part by FACTEM can only be used for the execution of its orders, unless otherwise agreed in writing. The tools must be identifiable as belonging to FACTEM and if possible be affixed with a plate or an indelible inscription as a reminder that they are property of FACTEM. In case of failure, the Supplier expressly authorises FACTEM to use the tools available to manufacture, have manufactured or to bring into conformity the Supplies that should have been delivered, as long as the failure persists, and whatever the rights of the Supplier on tools or Supplies.

Article 14 - PRICES AND REGULATIONS

The agreed prices can only be modified by an addendum to the initial order, it alone allowing the establishment of invoices at prices different from those previously agreed. Prices do not include taxes. Except for special conditions, the prices that are mentioned on the order are firm and not revisable. Unless otherwise stated, these prices are net and include freight charges, packaging and packing suitable for the transportation and storage of the Supply and the documents referred to in Article 7. The terms of payment appear on the front of the order form. The prices mentioned on the order cannot be the object of any modification without the express agreement of the two parties.

Article 15 - INVOICING

Each order will be invoiced separately. Invoices will be sent in duplicate to the accounting department of the receiving institution unless otherwise indicated. They will bring up the number and the date of the FACTEM order and the numbers of the delivery notes. In addition, the invoices will include all the required legal information. Suppliers in the European Union must also indicate the Combined Nomenclature code, the net and gross weight, the intra-EU VAT number and the origin of the Supply. The currency of payment will be the currency in which the order is denominated. In no case may a change in currency parity be taken into consideration. Invoices must be strictly compliant with the reference order to avoid any billing dispute. FACTEM reserves the right to refuse the invoicing of any Supply which has not been the subject of an order placed in accordance with Article 2 or which does not contain the references or mentions referred to above. Any particular mention on the invoice contrary to the contractual provisions of the order and to the present terms will have no effect. Unless special conditions are expressly accepted by FACTEM, no payment can be made if (i) the acknowledgment of receipt of the order has not been returned by the Supplier, (ii) the delivery has not been made under compliant conditions, including documentation and certificates related to the equipment. In the event that the Supplier claims penalties for late payment, these penalties will be limited to an amount equivalent to that which would result from the application of a rate equal to three times the legal interest rate.

Article 16 - WARRANTY RESPONSIBILITY

Without prejudice to the provisions of articles 1641 and following of the Civil Code, the Supply shall be guaranteed against all defects of design, manufacture, operation and against any defects of materials and parts constituting during the duration defined on the order or otherwise, for a period of two (2) years from the date of technical acceptance at the FACTEM establishments. The Supplier's warranty covers parts and labour, including shipping and transportation. The Supplier guarantees the continuous operation of software in accordance with the specifications or the technical documentation relating thereto. Any intervention under the warranty is itself guaranteed for a period of twelve (12) months from the intervention or for the remaining period of the original warranty if the latter is longer. The Supplier will have to repair the consequences of these defects for FACTEM and its own customers and already accepts the principle of a commercial negotiation. In the event that the Supplier proves incapable of ensuring the proper performance of this warranty obligation, FACTEM reserves the right to have the necessary work performed at the Supplier's expense. More generally, FACTEM reserves the right to call into question, at any time, the Supplier's liability, particularly in the event that an action is brought against it, in order to obtain compensation for any damage caused by a defect in design, manufacture or operation of the Supplies.

Article 17 - INSURANCE

Civil Liability: The Supplier agrees to take out with a company that is notoriously solvent (i) a Professional Liability Insurance policy, (ii) a Liability Insurance policy before and after delivery, guaranteeing it for amounts the pecuniary consequences of the civil liability it may incur in case of bodily, material, immaterial, consequential or non-consequential damage caused to FACTEM, to FACTEM's customers or to third parties in connection with the performance of a or order (s). To this end, it will provide FACTEM with a certificate of insurance stating the nature and amount of the guarantees subscribed, duly signed by its insurer. The issuance of the above-mentioned certificate of insurance does not constitute in any way on the part of FACTEM any acknowledgment of the Supplier's limitation of liability for it.

Damage to property entrusted: In the event that FACTEM is required to entrust property to the Supplier in connection with the execution of the order, the Supplier undertakes to insure, at its expense and on behalf of FACTEM, the property entrusted against all risks of loss and damage.

Article 18 INTELLECTUAL PROPERTY FACTEM reserves all intellectual or industrial property rights: (i) on the Supplies executed according to the plans, diagrams and specifications gathered by FACTEM, as well as on the documents provided by FACTEM for this purpose, (ii) on software developed specifically for FACTEM as part of the order, (iii) on molds, tools, models and other prototypes made wholly or partly from the FACTEM specifications, (iv) on any process, in particular manufacturing and expertise resulting from studies financed even indirectly by FACTEM. The Supplier grants to FACTEM a license to use the software, other than those developed specifically for FACTEM and which are integrated or associated with the Supplies object of the order for their operation for the needs of FACTEM and its customers. The Supplier will assume at its expense and under its direction the prohibition of any action or claim by a third party directed against FACTEM on the grounds that any element of the Supplies, software or service subject to the order infringes industrial property rights or claimed by third parties. The Supplier will be responsible for any convictions against FACTEM and will compensate for all costs, expenses and other harmful consequences incurred by FACTEM.

Article 19 - CONFIDENTIALITY

The Supplier undertakes to keep strictly confidential, not to disclose to third parties the technical and commercial elements of which it is aware of the fact of the execution of the orders of FACTEM and is prohibited from using these elements for other purposes than the execution of those commands. The Supplier undertakes not to inform third parties of its status as Supplier of FACTEM and will refrain from disclosing any information on the Supplies concerned, volumes or any other information related to its business flow with FACTEM. This obligation remains in effect even after the execution of the order. The documents provided by FACTEM must be returned to it at its request, immediately after execution of the corresponding order.

Article 20 - TERMINATION

In the event of a breach by the Supplier or its successors in title to any of its obligations. FACTEM may terminate in whole or in part, the order, in full right and without judicial intervention, eight (8) days after a formal notice by registered letter with acknowledgment of receipt remained unsuccessful. In addition, the order will be terminated by simple notification sent by FACTEM to the Supplier in the following cases: (i) the Seller fails to deliver the Supplies (or the performance of any service) within the time limits specified in the order, and the delay lasts more than one (1) week without prior approval of the Buyer, (ii) the Seller breaches its warranty obligations, (iii) liquidation or receivership of the Supplier if the Administrator waives the continuation of the order, (iv) transfer of the order to a third party not previously authorised by FACTEM, whatever the legal means by which this assignment is made. Upon termination of the order and if requested by FACTEM, the Supplier undertakes to (i) make available to FACTEM all work in progress, including source software studies and development files in progress, as well as any other documents provided by FACTEM to carry out this work, (ii) assist FACTEM to ensure in good conditions the transfer of work in progress and preserve the rights of FACTEM on this work in progress. The transfer price of the work in progress will be evaluated by mutual agreement. FACTEM may require delivery of Finished Supplies. FACTEM will retain the payments remaining to be made for the Supplies delivered and work in progress a sum intended to cover the expenses exposed by FACTEM to make up for the Supplier's failure as well as the resulting disputes. This clause does not preclude the exercise by FACTEM of any liability claim against the Supplier.

Article 21 - COMMITMENT OF SUPPLIER

Throughout the duration of the Contract, the Supplier undertakes:

Commitment to progress: To make every effort to seek improvements in the technical definition of the product (s) and / or services subject of the order and its industrial process in a constant effort to reduce the cost of manufacture and quality improvement.

Evolution of supplies and durability: Not to stop deliveries suddenly regardless of the circumstances that may arise, including in case of dispute. Any changes in the design, manufacture and control of the Supplies must be reported by the Supplier to FACTEM, accompanied by a technical-commercial pitch, and receive the written agreement of FACTEM prior to its implementation, this without prejudice to the general technical responsibility of the Supplier. If the Supplier decides not to inform FACTEM, it will do so knowingly and will fully assume the consequences of the change decided, this may include the resumption of the fleet delivered if this change has the effect of modifying the characteristics of the Supplies in relation to the contractual specifications or which has not been previously accepted by FACTEM and / or its customers. The Supplier undertakes to inform FACTEM at least twelve (12) months in advance of the stoppage of manufacture or the withdrawal of its catalogue of the Supply. FACTEM may order the required quantities within this period. In addition, the Supplier undertakes, for a minimum period of five (5) years after the stoppage of manufacture or the removal of the catalogue, to provide to FACTEM under reasonable conditions the parts, components and other elements necessary for the use of the Supply.

Environment: To ensure that the Supplies comply with the laws, regulations and standards in force in the European Union regarding the protection of the environment. When designing the product and its packaging, and / or when choosing the materials, the Supplier undertakes to take all necessary or necessary measures to meet the legal or regulatory requirements for the protection of the environment.

Labour & Legislation: To respect the Labour Code and declare to be in good standing with regard to social legislation and more particularly with regard to the provisions concerning illegal work. The Supplier undertakes not to solicit or employ children for any activity whatsoever, in accordance with the provisions of Convention 138 of the International Labour Organisation.

Article 22 - MISCELLANEOUS

Force Majeure: The Parties shall not be held responsible for any delay or failure in the performance of their obligations resulting from any unforeseeable and unpreventable event or circumstance beyond their control, such as but not limited to earthquakes, fires, floods, labour conflicts, riots, civil wars, wars (declared or not), government measures etc. The Party concerned shall send a written notification of the delay and the cause of the delay to the other Party as soon as possible after becoming aware of the cause of the delay in question.

Tolerance / Derogation: The Buyer's tolerance of Seller's breach of one of the Terms of Purchase may not be extended to any subsequent breach. The failure of one of the Parties to enforce any of these conditions shall in no way constitute a waiver of these conditions and shall not affect the right to subsequently enforce them.

Renunciation: The fact that one of the Parties does not make a claim for breach by the other Party of any of its obligations, cannot be considered as a waiver of the obligation in question or as an amendment to the Terms of Purchase, and cannot prevent the non-defaulting Party from making such a claim in the future.

Partial Invalidity: If one or more of the provisions herein were, for any reason, invalid, illegal or improper in any respect whatsoever, they shall be deemed to be unwritten and the remaining provisions of this Agreement shall not be will not be affected.

Article 23 - LITIGATION

FACTEM and the Supplier undertake to endeavor to settle amicably any dispute or claim relating to these Terms of Purchase. Failing agreement within a reasonable time, any dispute relating to the interpretation, performance or termination of the order or the purchase contract shall be brought before the Commercial Court of the place of the registered office of the company FACTEM concerned who will be solely competent, regardless of the place of delivery and the mode of payment otherwise agreed between the parties or in the event of an appeal in warranty, plurality of defendants or incidental claim. French law is only applicable to these terms and to any order submitted to it, the provisions of the Vienna Convention on Contracts for the International Sale of Goods being excluded. By express agreement, any dispute relating to the execution or interpretation of these terms and conditions and / or a FACTEM order will, in the absence of amicable agreement, be the exclusive jurisdiction of the Paris Commercial Court, even in case of summary.

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