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General Terms and Conditions of Sale

The general terms and conditions of sale (the “Agreement”) is made by and between Exclusive Networks Ltd., including any of its subsidiaries and affiliates (“Exclusive Networks“), having its principal place of business at Arcs de Seine – Bat A, 20, quai du Point du Jour – CS40099, 92659 Boulogne-Billancourt Cedex, and [CUSTOMER],having its principal place of business at [ADDRESS], (“Customer“), with an effective date of [DATE or TRIGGER] (the “Effective Date”).

 

  1. GENERAL
    • Customer agrees that the Agreement is binding, and may not be added to, modified, superseded or otherwise altered (including by inconsistencies between Customer’s purchase order and the Agreement) except by written instrument signed by an authorized representative of Exclusive Networks and delivered to Customer. The Agreement shall operate as Exclusive Networks’ acceptance of Customer’s purchase order, but such acceptance is made expressly conditional on assent by Customer to the Agreement, which Customer and Exclusive Networks agree shall constitute the sole, entire final agreement between Customer and Exclusive Networks in respect of the sale or license, as applicable, contemplated hereunder.  The Agreement shall supersede all previous or contemporaneous communications, transactions, and understandings, whether oral, or written. Customer is not permitted to cancel or modify purchase orders after Exclusive Networks has accepted such purchase order, unless otherwise agreed to in writing by Exclusive Networks.
    • Term and Termination. The Agreement shall become effective on the Effective Date and shall terminate upon written notice by Exclusive Networks to Customer.
  2. PRODUCTS AND SERVICES
    • Exclusive Networks agrees to sell and/or license, as applicable, and Customer agrees to purchase and/or license, as applicable, the product(s) (the “Products”) described in Exclusive Network’s order acknowledgment (the “Order”) into which this Agreement is incorporated.
    • Sale of Hardware. Any hardware Products sold to Customer (“Hardware”) may be sourced from third party suppliers, for whom Exclusive Networks is an authorized distributor (“Third Party Suppliers”). The description of the technical characteristics and documentation of such Hardware may be attached to the Order, and the parties understand and agree that Customer shall be responsible for obtaining such description of the technical characteristics and documentation from the Third Party Supplier should it not be attached to the Order.
    • License to Software.Subject to the Agreement, Exclusive Networks grants Customer a limited, non-exclusive, non-transferable license to use the software Products embedded in the Hardware (the “Software”). Such use is limited to the number of licenses set forth on the Order.  Customer hereby agrees to abide by any additional terms and conditions which may be applicable to such Software which are attached to the applicable Order.  In the absence of such additional terms and conditions, the right to use the Software is limited to the implementation of a single copy.  Further, Customer shall ensure that any authorized users of the Software are made aware of, and comply with, these restrictions.
    • Maintenance Services. Any maintenance services provided by Exclusive Networks or by a third party supplier in support of the Hardware or Software (“Maintenance Services”) shall be set forth and described on the Order along with any associated fees.
  3. INTELLECTUAL PROPERTY
    • As between Customer and Exclusive Networks, Exclusive Networks retains all right, title, and interest in and to the Software, updates, documentation, and copies, and all patents, copyrights, trade secrets, trademarks, and other intellectual property rights therein. Exclusive Networks retains all rights to the intellectual property associated with the Hardware except as expressly granted in this Agreement or the Order, and the above Software restrictions will apply to Hardware to the extent applicable. The Software, documentation, and copies are protected under copyright laws, and any permitted copies must include all copyright, government-restricted rights, and other proprietary notices or legends included on the Software when it was provided to Customer.
  4. PRICES
    • Prices are agreed between Customer and Exclusive Networks in the Order. International, federal, state and local excise, sales, use, value-added and similar taxes and tariffs if applicable (“Taxes“) are to be borne by Customer unless Customer provides Exclusive Networks with a properly executed tax exemption certificate. Unless otherwise specified or required by law, all prices will be quoted and billed exclusive of delivery charges and Taxes which will be billed as separate, additional items on Exclusive Networks’ invoices.
  5. BILLING
    • Customer shall pay the net invoiced amount by bank transfer to Exclusive Networks in United States currency within thirty (30) days from date of Exclusive Networks’ invoice, which may be submitted to Customer via an electronic format. Any payments or part thereof remaining unpaid after thirty (30) days shall, in Exclusive Networks’ discretion, be charged a 1.5% per month late fee beginning the second month following delivery of shipment, not to exceed the maximum charge permitted by law.In addition, Customer shall reimburse Exclusive Networks for all costs and expense associated with the collection of late payments from Customer.
  6. DELIVERY; RISK OF LOSS
    • The risk of loss of the Hardware set forth on the Order passes to Customer upon shipment of the Hardware to Customer (the “DeliveryDate”). All delivery times are approximate. Exclusive Networks will endeavor to meet scheduled delivery dates but shall be excused from delays in delivery attributable in whole or in part to any cause beyond Exclusive Networks’ control including Force Majeure Events.  In no event will Exclusive Networks be liable for any premium transportation, re-procurement, or other costs or losses incurred by Customer for any reason, including, without limitation, as a result of Exclusive Networks’ failure to deliver product in accordance with indicated delivery schedules.
    • Title to the Hardware set forth on the Order and invoice shall remain with Exclusive Networks until the full payment for such Product(s) has been made to Exclusive Networks by the Customer.
    • No Products can be returned or will be refunded to Customer without the prior written agreement of Exclusive Networks.
    • Force Majeure. Except for the obligation to make payments, nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, acts of God, governmental acts or orders or restrictions, act of terrorism, war, or any other reason where failure to perform is beyond the reasonable control of the non-performing party and not due to its fault or negligence (“Force Majeure Events”); provided that, the non-performing party immediately notifies the other party in writing of such delay.
  7. DEFAULT
    • If Customer fails to make timely payments in accordance with Section 5, in addition to its rights under Section 5, Customer hereby agrees that Exclusive Networksshall have the right to enter any of Customer’s premises, and without breach of the peace take possession of the Hardware. In addition, Customer shall reimburse Exclusive Networks for all costs and expense associated with the retrieval of such Hardware from Customer.
  8. WARRANTY
    • Exclusive Networks makes no warranty regarding Hardware manufactured by a Third Party Supplier. Exclusive Networks shall pass through, assign or provide to Customer the applicable original equipment manufacturer and additional warranties, and the benefits thereof, for the Hardware where such warranties are provided by a Third Party Supplier.
    • With regard to Hardware manufactured by Exclusive Networks, Exclusive Networks warrants that such Hardware shall be materially free from defects, latent and patent, in design, materials and workmanship for a period of twelve (12) months from the Delivery Date, unless such other date is indicated on the Order.
    • The warranty set forth in Section 8.2does not apply to any failure of the Hardware caused by (i) Customer’s failure to follow Exclusive Network’s installation, operation, or maintenance instructions or procedures; (ii) Customer’s mishandling, misuse, negligence, or improper installation, de-installation, storage, servicing, or operation of the Hardware; (iii) unauthorized modifications or repairs; or (iv) Force Majeure Events. Exclusive Networks cannot and does not warrant the performance or results that may be obtained by using the Hardware, nor does Exclusive Networks warrant that the Hardware is appropriate for Customer’s purposes or error-free.
    • The liability of Exclusive Networks for breaches of the warranty in Section 8.2is solely and exclusively limited to replacement, repair or credit at the purchase price of the Hardware, at Exclusive Networks’ sole discretion.In the event that Exclusive Networks chooses to credit the purchase price, Customer hereby agrees that the title to such Hardware transfers to Exclusive Networks upon delivery of such Hardware to Exclusive Networks’ facilities.
    • Except for any warranty expressly included herein, Exclusive Networks makes no other warranties regarding the Products or Maintenance Services, express or implied, including, but not limited, to any implied warranty of merchantability, fitness for a particular purpose or non-infringement, nor shall this warranty be enlarged by representations, course of dealings, usage, services, trade, samples or otherwise.
  9. LIABILITY
    • In no event shall Exclusive Networks be liable for special, incidental or consequential damages including but not limited to, loss of profits or revenue, loss of data, loss of use of the Products, damage to associated equipment, rework, recall costs, downtime of plant or equipment, cost of substitute equipment or products or claims of Customer’s customers for such damages, whether as a result of breach of contract, an equitable claim, warranty, tort (including negligence) or otherwise.
    • Notwithstanding anything herein to the contrary, the cumulative financial obligations of Exclusive Networks for any claim(s) of any kind, whether based upon breach of contract, warranty, tort (including negligence or otherwise), for any loss or damage arising out of, or resulting from the Agreement, or from Exclusive Networks’ performance or breach, or from any Maintenance Services or Product furnished hereunder, shall in no event exceed the aggregate monies actually paid to Exclusive Networks for the Product which gives rise to the claim(s).
  10. EXPORT OF THE HARDWARE BY CUSTOMER
    • Customer agrees and certifies that neither the Products, nor any other technical data received from Exclusive Networks, nor the direct Product thereof, will be exported or re­exported outside the U.S. except as authorized and as permitted by the laws and regulations of the U.S. including without limitation U.S. Export Administration Regulations. Customer acknowledges that certain products containing encryption may be subject to import and use restrictions in other countries, and Customer must comply with all export and import laws of the applicable countries. Customer will cooperate with Exclusive Networks in executing documents or licenses necessary to comply with the export or other applicable laws and regulations of the U.S.
  11. CUSTOMER’S COMMERCIAL COMMITMENTS
    • Customer shall apply the best commercial standards as well as the laws applicable in its territory and not to harm Exclusive Networks’ commercial reputation. In particular, Customer undertakes to provide accurate, up to date information about the characteristics, performances and possible uses of the Products commercialised by Exclusive Networks. Customer also undertakes to obtain and renew any authorizations necessary for the sale of the products in the country in which it is established. Customer also undertakes to respect and enforce the intellectual property rights protecting the Products.
  12. ETHICS; COMPLIANCE WITH LAW
    • Customer agrees to comply with all applicable laws.
    • Customer (including Customer’s executives, directors, employees and agents) undertakes to comply with the applicable anti-corruption laws, including, and without limitation, the USA Foreign Corrupt Practices Act, the UK Bribery Act and the “Sapin II” act (collectively, the “Anti-Corruption Laws”). Customer shall refrain, in particular, from: (a) taking any measures or allowing or authorising any action by a third party in violation of the Anti-Corruption Laws; (b) using any sums of money, or other consideration, paid by the other party, for illegal purposes, including for purposes infringing the Anti-Corruption Laws, with the aim of helping the other party to obtain, or unduly conserve, a market or an agreement or any undue advantage; and (c) directly or indirectly, offering, promising, giving, requesting or accepting anything whatsoever either from a civil servant or public agent, undertaking or company controlled by the government, political party or any other private individual or corporate entity, with the aim of unduly obtaining a commercial or financial advantage or influencing any acts or decisions. Each party, acting in good faith, shall refrain from taking any measures that it believes infringe the laws or commercial policies applicable to the business relations between the parties. Customer represents that neither it nor its executives, directors or employees have been formally accused and/or pronounced guilty of an infringement or fraud with respect to the regulations applicable in terms of corruption. Customer shall inform Exclusive Networks immediately in the event of a change in the situation. Notwithstanding any other contrary provisions of these terms of sale, Exclusive Networks may terminate this Agreement immediately should Customer fail to comply with the provisions of this Section; and Customer shall indemnify, defend and hold harmless Exclusive Networks against claims resulting from a breach of this Section.
    • Customer also undertakes to comply with the applicable legislation in terms of the protection of personal data and privacy including but not limited to the EU General Data Protection Regulation and to gain the consent of its customers for forwarding their personal data to Exclusive Networks in such a way as to allow them to make legal use of it for commercial and marketing purposes.
  13. GOVERNING LAW AND JURISDICTION
    • The Agreement and the rights and duties of Customer and Exclusive Networks shall be governed by the laws of the State of New York, USA. Any conflicting rights under the law where Customer is located are waived by Customer. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any sale hereunder.
    • Any disputes between the parties shall be settled by a court of competent jurisdiction in New York, New York, USA.
  14. MISCELLANEOUS
    • Relationship Between the Parties. The parties will act as independent contractors. Except as may be otherwise expressly provided, neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, or to represent the other party as agent, employee, or in any other capacity
    • Confidentiality. Subject to the requirements of applicable law, Customer shall keep the Agreement and any Order contemplated hereunder, including the identity of Exclusive Networks, confidential and will not disclose them to anyone, other than legal counsel, financial consultants and agents and representatives who need to know such information in connection with the transaction(s) contemplated hereby.
    • Severability. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, such provision will be severed from the Agreement, and the remainder of this Agreement will be valid and enforceable to the extent permitted by applicable law, provided that the intent of the parties is not materially impaired. The parties will use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by law, achieves the purposes intended under the invalid or unenforceable provision.
    • No failure of either party to exercise any power or right hereunder or to insist upon strict compliance with the terms of this Agreement, and no custom or practice of the parties at variance with the terms hereof, will constitute a waiver of either party’s right to demand compliance with the terms of this Agreement.
    • Conflict with Applicable Law: Severability. A ruling by any court that one or more of the provisions contained in the Agreement is invalid, illegal or unenforceable in any respect shall not affect any other provision of the Agreement so long as the material substance of the transactions contemplated herein is not affected in any manner adverse to any party.
    • Assignment. Customer shall not assign the Agreement or any right or interest herein without the prior written consent of Exclusive Networks. Any assignment in contravention of the foregoing shall be null and void.

Entire Agreement. This Agreement, along with all Orders and documents specifically incorporated by reference (collectively for purposes of this Section, “Exhibits“), constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, arrangements, and understandings between the parties regarding such subject matter. In the event of a conflict between any term of the Agreement and the attached Exhibits, the terms of the Exhibit will control solely with respect to the subject matter contained therein.

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