General Terms and Conditions of Sale
1. Application
The General Terms and Conditions of Sale set out below govern the contractual relationship between you, hereinafter referred to as the "Customer" or the "Buyer", and XAP, hereinafter referred to as the "Seller".
These General Terms and Conditions of Sale are the only terms applicable and supersede all other terms and conditions, unless otherwise expressly agreed in writing in advance. Amendments to these General Terms and Conditions of Sale shall be enforceable as from the date of their publication. They shall not apply to orders concluded prior thereto. Each order shall be governed by the General Terms and Conditions applicable on the date of the order. Placing an order implies the Buyer's full and unconditional acceptance of these General Terms and Conditions of Sale.
2. Prices and Order Acceptance
The sales prices stated in quotations, pricing schedules or order acknowledgements are expressed in euros and exclusive of taxes. All prices exclude taxes, customs duties and any other charges. The Buyer shall pay all such duties and charges in addition to the price excluding tax quoted by the Seller (XAP). Where possible, the Seller (XAP) shall itemize such duties separately on the invoice where they are required for shipment. As a general rule, all taxes shall be borne by the Buyer. Prices are therefore quoted ex works, excluding freight and insurance.
We reserve the right to change our prices at any time without prior notice, but undertake to apply the prices in force as quoted at the time the order is placed, once the deposit has been paid. Orders exceeding EUR 700 including tax shall only become final upon payment of a deposit equal to 40% of the total price including tax of the requested delivery. Unless otherwise expressly agreed by the Seller, all orders are deemed payable prior to shipment.
Storage and safekeeping charges for parts, as well as unpaid amounts, may be invoiced in addition.
In addition, in the event of late payment, and in accordance with the French Commercial Code, compensation shall be charged at four times the statutory interest rate. Recovery costs shall be subject to a minimum fixed compensation of EUR 40. The amount shall be calculated from the applicable due date until payment, plus the Seller's recovery costs.
The automatic application of late-payment penalties is in accordance with Article L 441-10 of the French Commercial Code and Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions.
The Seller reserves all other rights available under the French Commercial Code (or equivalent law in the applicable EU jurisdiction) in the event of the Buyer's non-payment for products or services, or any other breach by the Buyer of these Terms. In addition to all other rights and remedies available to the Seller (none of which are waived by the exercise of any right hereunder), the Seller may suspend delivery of any Product or Service if the Buyer fails to pay an amount on the applicable due date and such failure continues for five (5) days following receipt of notice by the Buyer.
The Buyer may not withhold payment of any amount due and payable as a set-off against any claim or dispute with the Seller, whether related to breach, insolvency or otherwise on the part of the Seller.
All purchases and related payments shall be made in euros or US dollars, unless otherwise stated in the applicable product or service price list or order acknowledgement.
Billing disputes must be identified in writing within 21 days of the invoice date. Payment of any disputed amounts shall become due and payable upon resolution. The Parties shall use good-faith efforts to resolve such disputes promptly within 21 days following notice of the dispute. All other amounts remain payable within 30 days. Where the Buyer makes a payment without specifying the invoice or invoices to which such payment is to be applied, the Seller may apply the payment, including any surcharges, to such invoice(s) or to any other amounts owed by the Buyer to the Seller, as the Seller may determine in its sole discretion.
The Buyer's entitlement to any discount or other incentive that the Seller may offer from time to time shall be conditional upon timely payment of all invoices and other amounts owed by the Buyer to the Seller during the period to which such discount or incentive relates. XAP reserves the right to cancel an order where the displayed price is incorrect or zero. Software products are supplied solely for operation with the hardware provided; rights of use are non-transferable. Software may be subject to corrective and upgrade maintenance services, which are not included.
3. Delivery - Shipment
The Seller shall deliver or make the products available within a reasonable period following receipt of the Buyer's purchase order, subject to availability. Any delivery date provided by the Seller for the Products is an estimate only and is based on the timely receipt of all necessary information from the Buyer. If the Buyer causes the Seller to delay shipment or completion of the products, the Seller shall be entitled to all additional costs and expenses resulting from such delay. The Seller shall not be liable for delays, loss or damage in transit, and failure to deliver within the estimated time shall not constitute a material breach of contract by the Seller. The Seller shall use commercially reasonable efforts to make shipments as scheduled.
Unless otherwise stated in the sales confirmation or otherwise agreed in writing by the Parties, the Seller shall deliver the Products EXW (Incoterms® 2020) at the Seller's premises (the "Delivery Location"), using the Seller's standard methods for packaging and shipment. The Buyer shall take delivery of the Products within three (3) days after the Seller gives notice that the Products have been made available at the Delivery Location. If the Buyer fails to take delivery within such three (3)-day period, the Buyer shall pay the Seller for the Products and all storage costs incurred by the Seller or, at the Seller's discretion, the Seller may ship the Products to the Buyer at the Buyer's expense.
The Seller may, in its sole discretion and without liability or penalty, make partial deliveries of Products to the Buyer. Each shipment shall constitute a separate sale, and the Buyer shall pay for the units shipped whether such shipment constitutes full or partial performance of the Buyer's purchase order. The Buyer shall be responsible, at its own expense, for obtaining all import licences and other consents required for shipment of a Product and shall provide such licences and consents to the Seller prior to shipment. Claims for loss of or damage to Products in transit must be made against the carrier and not the Seller.
The quantity of Products delivered, as recorded by the Seller upon dispatch from the Seller's premises, shall constitute evidence of the quantity received by the Buyer upon delivery, unless the Buyer provides evidence to the contrary.
If the Products are to be exported outside the EU, the Buyer undertakes to provide the Seller in writing with the final destination, end use and identity of the end user at the time the order is placed. The Buyer acknowledges and agrees that it shall be responsible for compliance with any product registration or import requirements of any country into which it seeks to import the Products. The Buyer is solely responsible for compliance with applicable French export laws. The Seller shall not be the importer of record and shall not be responsible for compliance with the import requirements of any country to which the Products are shipped.
4. Risk of Loss
Risk of loss of or damage to the Products shall pass to the Buyer when the Products are made available at the Delivery Location (EXW, Incoterms® 2020, Seller's premises). If the Buyer fails to accept delivery of any Products on the date specified in the Seller's notice, or if the Seller is unable to make the Products available on that date because the Buyer has failed to provide appropriate instructions, documents, licences or authorisations, then: (i) the Products shall be deemed delivered to the Buyer; and (ii) the Seller may, at its discretion, (A) store the Products until the Buyer takes possession, at which time the Buyer shall be liable for all resulting costs and expenses (including, without limitation, storage and insurance costs), or (B) ship the Products to the Buyer at the Buyer's cost and expense.
Title to equipment or materials manufactured by a third party ("Third-Party Equipment") shall pass to the Buyer upon delivery of such third-party equipment and/or materials at the Delivery Location. Unless the Buyer has prepaid the third-party equipment or materials, they shall be subject to a security interest in favour of the Seller until the Seller receives full payment from the Buyer. The Seller may, in its reasonable discretion, register a security interest over such third-party equipment or materials pending payment. Promptly upon the Seller's request, the Buyer shall execute all documents and take all actions reasonably requested by the Seller, at the Buyer's expense, to enable the Seller to exercise its security rights.
Title to any software licensed to the Buyer under these Terms shall remain with the Seller, its suppliers and licensors, and such software is provided in accordance with the terms of the End User Licence Agreement (EULA) accompanying the relevant software.
5. Retention of Title
5.1. By express derogation from Article 1583 of the French Civil Code, transfer of title to the Products to the Buyer is conditional upon full and effective payment, when due, of the principal price, interest, costs and ancillary amounts. Delivery of an instrument creating an obligation to pay shall not constitute payment for the purposes of this clause.
5.2. Risk shall nevertheless pass in accordance with Article 4 of these Terms, independently of the transfer of title. Accordingly, from the time the Products are made available, the Buyer shall bear all risks of loss, theft or deterioration and undertakes to obtain any insurance necessary to cover such risks.
5.3. Until the price has been paid in full, the Buyer shall not resell, transform, pledge, charge or create any security interest over the Products without the Seller's prior written consent. The Buyer undertakes to keep the Products in good condition, segregated and identifiable so that they may be reclaimed at any time.
5.4. In the event of failure to pay on the due date, the Seller may, eight (8) days after sending a formal notice that remains without effect, reclaim the unpaid Products and require their immediate return at the Buyer's cost, risk and expense, without prejudice to any damages. Any deposits already paid shall be retained by the Seller as fixed compensation, without prejudice to any other action.
5.5. The Buyer undertakes to notify the Seller immediately of any seizure, protective measure, commencement of safeguard, reorganisation or liquidation proceedings, or any equivalent proceeding under foreign law, that may affect the Products subject to this retention-of-title clause, and to inform any third party of the existence of this clause.
5.6. This clause shall be deemed accepted by the Buyer no later than upon delivery of the Products, in accordance with Article L 624-16 of the French Commercial Code.
6. Inspection - Rejection of Products
"Non-Conforming Products" means any of the following: (i) the items shipped differ from those identified in the Buyer's purchase order; (ii) the labels or packaging incorrectly identify the items; or (iii) the Products show an apparent failure to conform to the specifications agreed between the Parties.
The Buyer shall inspect the Products within five (5) calendar days of receipt (the "Inspection Period"). The Products shall be deemed accepted upon expiry of the Inspection Period unless the Buyer has notified the Seller in writing of any Non-Conforming Product and has provided the written evidence or other documentation reasonably required by the Seller.
If the Buyer notifies the Seller of any Non-Conforming Product before expiry of the Inspection Period, the Seller shall, at its sole discretion, either (i) replace the Non-Conforming Products with conforming Products, or (ii) credit or refund the purchase price of the Non-Conforming Products. Upon receipt of the Non-Conforming Products, the Seller shall inspect them and ship replacement Products (except where deterioration is due to misuse, incorrect connection or improper transport conditions) to the Delivery Location at the Seller's expense, with the Seller retaining the risk of loss until delivery.
The Buyer acknowledges and agrees that the remedies set forth in this section are the Buyer's exclusive remedies and the Seller's sole liability for delivery of Non-Conforming Products. The Buyer shall not be entitled to return Products to the Seller without the Seller's written authorisation. These provisions are without prejudice to the limited warranty set out in Article 7 and to any mandatory statutory warranties.
7. Limited Warranty
As a general rule, unless otherwise stated by the Seller in a separate written product warranty accompanying the equipment or specified in the applicable equipment price list (in which case such other product warranty terms shall prevail), the Seller warrants to the Buyer that the equipment shall be free from defects in materials and workmanship for six (6) months from the date of initial delivery of the Seller's Products to the Buyer (the "Warranty Period"). If, before expiry of the Warranty Period, the equipment does not conform to this limited warranty and the Buyer notifies the Seller in writing of such non-conformity, the Seller shall repair or replace the defective equipment. Repairs may be carried out using new or refurbished equipment or components (at the Seller's option) or, if the Seller no longer sells the relevant equipment, using similar equipment having the same function. The Buyer shall bear the costs of access, removal, reinstallation and transportation of the Equipment to the Seller and return to the Buyer. Any repair or replacement under this limited warranty shall not extend the Warranty Period.
Conditions of the limited warranty: this limited warranty and remedy are expressly conditional upon: (i) proof that the Buyer has paid the purchase price in full; and (ii) the Buyer notifying the Seller in writing of the defect, reasonably described, within ten (10) days after the Buyer discovers or should have discovered the defect.
What this limited warranty does not cover: the foregoing limited warranty does not apply to: (i) consumable equipment and components (for example, batteries, filters, belts and kits); (ii) equipment subjected to misuse, negligence, accident or improper installation; (iii) equipment damaged by disaster (for example, fire, flood, wind, earthquake or lightning) or other causes beyond the Seller's control (for example, excessive voltage, mechanical shock or water damage); (iv) equipment whose defect was caused by modification or repair by anyone other than the Seller or its authorised representatives; (v) normal wear and tear; (vi) equipment not manufactured by the Seller or not bearing its nameplate ("Other Equipment"); (vii) any equipment manufactured or customised to the Buyer's specifications or used under extremely severe conditions; (viii) equipment for which the Buyer cannot reasonably prove that it has been stored, installed, operated, used and maintained in accordance with the Seller's published specifications and instructions; (ix) equipment purchased through a channel other than one authorised by the Seller; (x) all software (such software being warranted in accordance with the terms of the end user licence agreement included with the equipment); (xi) equipment that is subject to a separate written warranty ("Other Warranty") accompanying the equipment, included in the applicable equipment documentation or set out in the applicable equipment price list; and (xii) all parts used in competition, which are not covered by any specific contractual warranty once they have participated in an event.
Other Equipment may be covered by warranties from other manufacturers, suppliers or publishers, which the Seller may assign or pass through to the Buyer, without recourse against the Seller, to the extent permitted by such manufacturers, suppliers or publishers.
How to make a warranty claim: the Buyer must notify the Seller of any warranty claim and request a Return Material Authorisation ("RMA") by contacting (i) the Buyer's place of purchase (for example, the Seller's branch, retailer, distributor or wholesaler), or (ii) XAP Technology's after-sales service for the relevant equipment range. Returned equipment will only be accepted if the RMA is included with the returned equipment; equipment returned without a proper RMA will be sent back to the Buyer at the Buyer's expense.
If the Seller provides services ancillary to the sale of the equipment, such as installation, training and start-up ("Services"), the Seller warrants to the Buyer that it shall perform the Services professionally and in accordance with good industry practice.
The Seller shall reperform any non-conforming Service at no charge, provided that the Buyer gives the Seller written notice within five (5) days after completion of the Services. The limited remedies described herein constitute the Buyer's sole and exclusive remedy and the Seller's sole liability under this limited warranty.
8. Intellectual Property
The Buyer acknowledges that the Seller and its affiliates are the owners or licensors of trademarks, registered trademarks, designs, patents, copyrights and other intellectual property relating to the Seller's products, and that no right or licence is granted by the Seller to the Buyer to manufacture, have manufactured, modify, import or copy such products. The Buyer agrees to refer to the trademarks of the Seller or its affiliates solely in connection with the use or sale of Products supplied to the Buyer hereunder, and not in connection with the sale of any other Product, unless separately authorised in writing by the Seller.
The Buyer further agrees that it shall not, directly or through intermediaries, reverse engineer, decompile or disassemble any software (including firmware and embedded software) forming part of or contained in a Product, subject to the mandatory exceptions provided for in Article L 122-6-1 of the French Intellectual Property Code.
9. Personal Data
The Seller processes personal data relating to the Buyer's representatives for the purposes of performing the contract and managing the business relationship, on the legal bases of performance of the contract and the Seller's legitimate interests.
Such data is retained for the duration of the business relationship, plus the applicable statutory limitation periods. It shall not be transferred outside the European Union without appropriate safeguards within the meaning of Chapter V of Regulation (EU) 2016/679.
Data subjects have rights of access, rectification, erasure, restriction, objection and portability, which they may exercise with the Seller at the address specified in Article 21, as well as the right to lodge a complaint with the French Data Protection Authority (Commission nationale de l'informatique et des libertés - CNIL).
10. Indemnification
The Buyer shall indemnify, defend and hold harmless the Seller and its parent companies, subsidiaries and affiliates, successors and assigns, and each of their respective officers, directors and employees, from and against all claims, losses, damages, costs and expenses (including attorneys' fees and amounts paid in good-faith settlement) that may be suffered or incurred by any of them as a result of any claim, demand, action, proceeding or cause of action arising out of: (i) any act or omission of the Buyer or its representative arising out of or relating to the Buyer's purchase, handling, transportation, export, re-export, transfer, import, possession, use, demonstration, marketing, sale, disposal, distribution or servicing of the Products; (ii) any statement or representation (oral, written, express or implied), suppression of information or failure by the Buyer or its representative to disclose information of any kind concerning Products or Services that differs from or is in addition to the Product or Service warranty provided by the Seller; (iii) the improper use or disclosure of the Seller's intellectual property, including trademarks, patents, copyrights and confidential information relating to marketing and business systems; (iv) any wilful misconduct or negligent act or omission of the Buyer, its employees or agents; (v) any contractual obligation assumed by the Buyer towards a third party; (vi) any misuse or modification of the Products by the Buyer or its employees or agents; or (vii) the Buyer's failure to comply with any law applicable to these Terms or to the performance of its obligations hereunder.
11. Exclusion of Damages and Limitation of Liability
11.1. Applicable warranties. Unless otherwise provided in a separate written warranty accompanying the equipment or specified in the applicable price list, the Seller's liability in respect of the Products and Services shall be governed exclusively by Article 7 of these Terms.
These Terms do not affect mandatory statutory warranties, including in particular the warranty against latent defects provided for in Articles 1641 et seq. of the French Civil Code, or the statutory conformity warranty where mandatorily applicable.
Subject to the foregoing, the Seller makes no other warranty, express or implied, relating to the Products or Services, including any warranty of fitness for a particular purpose other than the purpose expressly agreed between the Parties in the contractual documents.
11.2. Exclusion of indirect damages. To the extent permitted by French law, the Seller shall under no circumstances be liable for indirect, intangible, consequential or special damages, regardless of the legal basis of the claim, including in particular: loss of business, loss of production, loss of use, loss of revenue or profit, loss of customers, reputational damage, loss of data, costs arising from the immobilisation of a vehicle, test bench or installation, damage resulting from delays, as well as losses resulting from viruses, ransomware, cyberattacks, data breaches, or network system failures or interruptions, even if the Seller has been advised of the possibility of such damages.
11.3. Liability cap. To the extent permitted by French law, the aggregate and cumulative liability of the Seller, its employees, subcontractors and affiliates in respect of all claims arising out of or relating to these Terms, the Products and the Services shall be limited to the higher of the following amounts: five hundred euros (EUR 500) excluding tax, or two per cent (2%) of the amount excluding tax of the relevant order, all causes and losses combined.
11.4. Exceptions to the cap and exclusions. The limitations and exclusions set out in Articles 11.2 and 11.3 shall not apply: (i) in the event of fraud or gross negligence by the Seller; (ii) in the event of personal injury; (iii) in respect of liability for defective products governed by Articles 1245 et seq. of the French Civil Code; or (iv) in any case where French law prohibits such limitation or exclusion.
11.5. Contractual allocation of risk. The Buyer acknowledges that the price of the Products and Services has been determined in consideration of the allocation of risks resulting from this Article, which constitutes a determining condition of the Seller's consent. The Buyer acknowledges that it has had the opportunity, if it deemed necessary, to obtain insurance covering risks not assumed by the Seller under these Terms.
11.6. Limitation period. Any action by the Buyer based on these Terms must be commenced within two (2) years from the event giving rise to the claim, failing which it shall be time-barred, within the limits permitted by Article 2254 of the French Civil Code.
12. Modification - Product Recall
The Seller reserves the right to alter, modify, redesign or discontinue Products or any component thereof, and to modify its service, warranty, support or other policies, without notice and without any obligation to the Buyer.
By way of exception, where the Parties have agreed to a series-production commitment covering a specified volume and duration, the Seller shall give the Buyer at least six (6) months' prior notice of the discontinuation of manufacture or removal from the catalogue of the relevant Product, during which period the Buyer may place orders for the required quantities.
In the event of a product recall, the Buyer must immediately cease using the product upon receipt of the Seller's notice. The Seller's sole obligation in the event of any equipment recall shall be to repair or replace such equipment. For Third-Party Products, the Seller shall pass through to the Buyer any remedies available in connection with a recall of a Third-Party Product.
13. No Licence - Software
The sale of the Products shall not grant the Buyer any licence, express or implied, under any patents, trademarks, trade names or other proprietary rights owned or controlled by the Seller, its subsidiaries, affiliates or suppliers; it being expressly understood and agreed that all rights are reserved to the Seller, its subsidiaries, affiliates or suppliers. Without limiting the foregoing, the Buyer shall not, without the Seller's prior written consent, use any trademark or trade name of the Seller in connection with any Product, except in connection with the resale of Products pre-marked or packaged by or on behalf of the Seller.
14. Cancellation and Termination
No Product may be returned without the Seller's prior written consent. Orders placed with and accepted by the Seller may only be cancelled with the Seller's written consent and prior to shipment. The Buyer shall bear the cancellation costs incurred by the Seller. The Seller reserves the right to cancel any sale without liability to the Buyer, except for refunding amounts already paid.
The Seller may terminate these Terms with immediate effect by written notice to the Buyer if the Buyer: (i) fails to pay any amount when due under these Terms and such failure continues for five (5) days after the Buyer receives written notice of non-payment; (ii) otherwise fails to perform or comply with any of these Terms, in whole or in part; or (iii) becomes insolvent, files for bankruptcy, or becomes subject to proceedings relating to bankruptcy, receivership, reorganisation or assignment for the benefit of creditors.
In addition, the Seller may terminate these Terms without cause upon ninety (90) days' prior written notice to the Buyer, without prejudice to any ongoing series-production commitments, which shall remain applicable until their stated expiry.
15. Confidentiality
Each Party undertakes to treat as strictly confidential all non-public, confidential or proprietary information of the other Party, including, without limitation, trade secrets, intellectual property, business information, specifications, samples, models, designs, plans, drawings, documents, data, business operations, customer lists, prices and discounts, whether disclosed orally, in writing, electronically or in any other medium, and whether or not marked "confidential".
Such information is provided solely for the performance of these Terms and may not be disclosed to any person, division or entity, or copied, without the prior written authorisation of the disclosing Party. This obligation shall remain in force for five (5) years after the end of the contractual relationship.
Upon request by the disclosing Party, the other Party shall promptly return all documents and other materials received. Each Party shall be entitled to injunctive relief for any breach of this section.
This section shall not apply to information that: (a) is in the public domain through no fault of the receiving Party; (b) was lawfully known to the receiving Party, free of any confidentiality obligation, at the time of disclosure, as evidenced by written records; or (c) is lawfully obtained from a third party without a similar restriction imposed by such third party.
16. Excusable Delays / Force Majeure
The Seller shall not be liable, nor be deemed in breach or default of its obligations under any contract, to the extent that performance of such obligations is delayed, hindered or prevented, in whole or in part, directly or indirectly, by causes beyond its reasonable control, whether foreseeable or unforeseeable, including, without limitation: natural disasters, fires, floods, terrorism, war (declared or undeclared), armed conflicts or serious threats thereof, plagues, epidemics, pandemics, quarantines or other public-health risks and responses thereto, insurrection, civil unrest, riots, collective violence, acts or omissions of the Buyer or its suppliers or agents, any act or omission of any governmental authority (including any change in law or regulation), strikes, lockouts, labour disputes, accidents, employment disputes, transportation shortages, unavailability or shortage of labour, energy, materials, production capacity, facilities, transportation or shipping, cyberattacks, viruses, ransomware, network system failures or interruptions, data breaches, supplier non-performance, or any other cause, accident or excusable delay beyond the Seller's reasonable control.
In the event of force majeure or any other excusable delay, the Seller's performance or delivery date shall be extended by a period equal to the duration of the event or the time lost as a result of the delay, plus any additional period reasonably required to overcome the effects of the delay. If the delay is caused by acts or omissions of the Buyer, or of its agents, subcontractors or suppliers, the Seller shall be entitled both to an extension of time and to a price adjustment. If the Seller incurs increased costs as a result of a delay not attributable to an act or omission of the Buyer (including prolonged warehousing and storage costs and labour costs), the increase in costs shall be shared equitably between the Seller and the Buyer, or the contract may be terminated at the Seller's option.
17. Compliance
Each Party undertakes at all times and at its own expense: (i) to comply strictly with all applicable laws, rules, regulations and governmental decisions, whether currently in force or adopted in the future, relating to its performance of this Agreement, including, without limitation, export and import laws and regulations; (ii) to pay all fees required under such laws, rules, regulations and decisions; and (iii) to maintain in full force and effect all licences, permits, authorisations, registrations and qualifications from all applicable government departments and agencies, to the extent necessary to perform its obligations hereunder. At the Seller's request, the Buyer shall execute written certifications and other export- or import-related documents as may be required under applicable laws and regulations.
All products or technical information supplied under this Agreement may be subject to export controls of the European Union and the French State, as well as to the trade laws of other countries. The Parties agree to comply with all applicable export-control regulations and to obtain all licences or item classifications required to export, re-export or import deliverables.
The Parties agree not to export or re-export to entities appearing on the export-denial lists of the European Union and the French State then in force, or to embargoed countries or countries supporting terrorism, as specified by the export-control regulations of the European Union and the French State.
The Parties shall not use the deliverables for prohibited end uses relating to nuclear weapons, missiles, or chemical and biological weapons, in accordance with applicable export-control regulations.
The Buyer shall notify the Seller in writing within three (3) calendar days of any actual or perceived non-compliance with applicable export-control laws and regulations, including sanctions and embargo laws.
18. Governing Law - Jurisdiction - Dispute Resolution
The Parties shall endeavour to resolve amicably any dispute relating to the existence, validity, interpretation, performance or termination of this contract or any of its clauses within forty-five (45) days from notification of the dispute by the first Party to act.
If no amicable settlement is reached within that period, the dispute shall be brought before the courts having jurisdiction over XAP's registered office, which shall have exclusive jurisdiction, including in the event of third-party proceedings or multiple defendants.
The applicable law shall be French law, excluding the Vienna Convention of 11 April 1980 on Contracts for the International Sale of Goods.
19. Ethics
The Buyer undertakes to keep strictly confidential, not to use for its own benefit and not to disclose to any third party the trade secrets, intellectual property and confidential business information shared with it by the Seller under these Terms. The Buyer, including its officers, directors, employees and agents, shall use only legitimate, lawful and ethical business practices in performing these Terms.
20. Miscellaneous Provisions
The Buyer acknowledges that it has not been induced to purchase any of the Seller's products by any representation or warranty not expressly set forth in these Terms.
These Terms, the sales confirmation and any superseding agreement constitute the entire agreement between the Parties and supersede all existing agreements and all other oral or written communications between them concerning their subject matter. In the event of any conflict between the terms of the sale and these Terms, the terms of the sale shall prevail.
No waiver by the Seller of any provision of these Terms shall be effective unless expressly made in writing, specifically referring to these Terms and signed by the Seller. No failure or delay in exercising any right, remedy, power or privilege arising from these Terms shall constitute or be construed as a waiver thereof. Section headings are provided for convenience only and shall not affect the interpretation of the provisions. If any provision of these Terms is held to be prohibited or unenforceable, the remaining provisions shall remain in full force and effect.
The Buyer shall not assign any quotation or accepted order for the Products, in whole or in part, without the Seller's prior written consent. The Buyer agrees that the Seller may digitise or convert these Terms into any electronic format and that a copy produced from such format shall be legally equivalent to the original for all purposes, including litigation. All provisions which by their nature are intended to survive shall survive any cancellation or expiry of these Terms or of any purchase order or sales confirmation.
The Seller takes the greatest care in publishing the characteristics of its products, in particular by means of technical descriptions. Photographs are non-contractual and illustrate the products within the limits of available technology. The weights shown are provided for information only. The deletion or modification, by the Seller's suppliers, of items covered by a recorded order shall entitle the Seller to cancel the order in progress, unless the Customer agrees to amend it.
The Seller draws the Customer's attention to the fact that parts intended for adapting vehicles for competition may have characteristics that make their use on roads open to public traffic unlawful, insofar as they materially alter the vehicle characteristics described in the type-approval report issued by the competent French vehicle approval authority, including noise, emissions, maximum speed, tyre dimensions, etc. Competition parts are not covered by any specific contractual warranty once they have participated in an event.
21. Notices
All notices, approvals, consents and requests required or permitted under these Terms must be made in writing and shall be deemed validly given when sent by registered letter with acknowledgement of receipt, or by email with acknowledgement of receipt, to the Party authorised to receive such notice at the address specified below:
For the Seller: The President of XAP, 298 rue des Entrepreneurs, 30420 Calvisson, France.
For the Buyer: at the address stated on the purchase order.