GENERAL TERMS
AND CONDITIONS OF SALE

These general terms and conditions of sale (these “Terms”) are applicable to the sale of products (hardware and software) by ECO-COUNTER (“Seller”) to the buyer named on the reverse side of these Terms (“Buyer”).

These Terms are always sent to the Buyer prior to any order placement.

Consequently, placing an order with Seller is subject to Buyer’s unconditional acceptance of these Terms, any subsequently applicable general terms and conditions of sale, as well as to Seller’s prices effective on the order date, notwithstanding all conflicting clauses which would appear in any type of document issued by Buyer, regardless of whether or when Buyer has submitted such document. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.

Overriding or special agreements will not prevail over these Terms, failing the express, written agreement of Seller.

The accompanying signed quotation (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties and supersede all prior and contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.

Should Seller fail or delay to invoke any of the clauses of these Terms at any given point in time, such failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms shall not operate or be construed as a waiver to exercise same at a later date. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

The texts and photos featuring in the catalogs, commercial documentation and on the website of Seller are not contractually binding, the products shown being subject to any changes deemed necessary by Seller.

Seller reserves the right to amend these Terms as it sees fit. The Terms applicable to the Agreement are those in force on the date of acceptance by Buyer.

1. PRODUCTS, ORDERS, PRICES

1.1 Products

Seller offers its products to potential buyers via its sales team, its brochures and website.

Seller may at any point in time modify the references and characteristics of its products for sale.

1.2 Orders

Sales are only finalized subject to the express written acceptance by Seller of Buyer’s order; it being specified that Seller may reject the order, including in the following circumstances:

• any order whose volume is unusually high with respect to volumes usually ordered by Buyer, resale at a loss or any other unfair practice,
• non settlement of a previous order by the Buyer.

The term ‘order’ encompasses any order covering the products sold by Seller and featuring on the price list applicable on the effective date and approved by Seller, potentially associated with the settlement of the down payment stated on the purchase order.

Any modification to the content or volume of an order or cancellation of an order by Buyer can only be considered if it is received in writing by Seller and accepted in writing by Seller.

Should Buyer make any changes to the order, Seller will be released from the agreed lead times for its execution.

1.3 Prices

The prices of the products are subject to change without notice. Any price changes will be automatically effective on the date given on the new price.

Invoicing is based on the prices in force on the day on which the order is placed.

Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets. Shipping and packaging costs may be charged in addition to the price of the products.

All taxes, duties, fees or other costs to be paid pursuant to regulations of an importer country or a transit country are payable by Buyer.

An invoice will be prepared for each delivery and issued to Buyer at the time of said delivery.

2. DELIVERY

The delivery lead times are subject to availability and are solely informational.

Seller may, in its sole discretion, without liability or penalty, make partial shipments. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of Buyer’s order.

Products are deliverable to the locations agreed to with Buyer using Seller’s standard methods for packaging and shipping such products. Buyer shall take delivery of the products within five (5) business days of Seller's written notice that the products have been delivered to the agreed place for delivery. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the products at the agreed place for delivery and will unload and release all transportation equipment promptly, so Seller incurs no demurrage or other expense. If for any reason Buyer fails to accept delivery of any of the products on the date fixed pursuant to Seller's notice that the products have been delivered at the location agreed with Buyer for delivery, or if Seller is unable to deliver the products at the agreed place of delivery on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the products shall pass to Buyer; (ii) the products shall be deemed to have been delivered; and (iii) Seller, at its option, may store the products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance).

Title and risk of loss pass to Buyer upon delivery of the products at the agreed location for delivery. Seller shall not be liable for any delays, loss, or damage in transit, nor shall any delay enable Buyer to detain products or cancel any current orders. Buyer shall inspect the products within seven (7) days of receipt of the products, excluding statutory holidays and if the consignee has not fulfilled their duties for the delivery. Buyer will be deemed to have accepted the products unless it notifies Seller in writing of any Nonconforming Products during such period and furnishes such written evidence or other documentation as required by Seller.

"Nonconforming Products" means only the following: (i) product shipped is different than identified in Buyer's purchase order; or (ii) product's label or packaging incorrectly identifies its contents. If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming products, or (ii) credit or refund the price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Seller shall ship, at its expense and risk of loss, the Nonconforming Products to the agreed location for delivery. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer's shipment of Nonconforming Products, ship to Buyer, at Buyer's expense and risk of loss, the replaced Products to the agreed place for delivery.

Buyer acknowledges and agrees that the above remedies are Buyer's exclusive remedies for the delivery of Nonconforming Products. Except as provided above, all sales of products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under the Agreement to Seller.

Delivery of the products ordered by Buyer without any reservations covers any visible defect and/or shortage.

Seller endeavors to meet the delivery dates stated upon acceptance of the order, in accordance with the reference logistic lead time in the trade, and to execute the orders, apart from an event of force majeure or any act or omission of Buyer or its agents, subcontractors, consultants, or employees.

To this end, force majeure covers any failure or delay in Seller fulfilling any terms of the Agreement, when and to the extent such failure or delay is caused by or results from acts beyond Seller’s control, including, without limitation: acts of God, flood, fire, any strikes, labor stoppages or slowdowns, or other industrial disturbances at Seller or at one of its suppliers or subcontractors, lock-out, flood, epidemic, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, requisition, hurricane, tornado, earthquake, revolution, government order, law, or actions, theft of all or part of the equipment, extreme cold, shortage of raw material or component, failure to execute or defective or late execution of a Seller supplier, accident involving machinery, fuel shortage or power outage, disruption or delay in transportation, damage in transit, telecommunications or internet failures, temporary decommissioning of machinery or tools required for the execution of orders within Seller’s premises, their suppliers or subcontractors, as well as any circumstance or event beyond Seller’s control taking place after entry into force of these Terms and preventing performance of these Terms under normal conditions by Seller.

Seller shall inform Buyer in a timely manner of the occurrence of one of the events listed above and must attempt to remedy its effects as soon as possible.

However, if Seller deems that the performance of an order appears to be permanently jeopardized as a result of the above-mentioned events, Seller will be entitled to cancel said order without incurring liability.

In addition, If Seller's performance of its obligations under the Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.

3. PAYMENT OF INVOICES 

Except otherwise specified, invoices must be paid by bank transfer or check within a maximum period of 30 days following the invoice date. Compliance with this deadline shall involve allowing sufficient time for transfer of funds in accordance with this method of payment. Bank transfer fees will be paid for by Buyer. Any payment made after the due date shown on the invoice shall bear interest at annual rate of 18% or the highest rate permissible under applicable law, calculated daily and compounded monthly, from the day following the payment date as determined according to the aforementioned period and up to the date of effective payment. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller may, if Buyer fails to pay, terminate the Agreement pursuant to article 10 below. Seller may, as it sees fit, consider these orders suspended or cancelled until complete payment of all amounts due by Buyer.

Under no circumstances may payments be suspended or be subject to any set-off whatsoever without the prior written agreement of Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.

Any drop in Buyer’s credit may justify the request for a security deposit or immediate payment prior to the execution of the orders received.

Similarly, Seller reserves the right, on account of the risks incurred, to set a cap on the outstanding liabilities of Buyer at any moment. This shall be the case where a change in management or in the status of the company takes place or where a sale or a lease, mortgage or transfer of the business is likely to have an adverse effect on the creditworthiness of Buyer.

4. DISPUTES OVER INVOICES 

Any invoice remaining undisputed after a period of 6 months following its issue is considered definitively accepted and shall not give rise to any claims for reimbursement or compensation.

5. OWNERSHIP

TRANSFER OF OWNERSHIP OF SELLER’S PRODUCTS IS SUBJECT TO EFFECTIVE PAYMENT IN FULL, INCLUDING EXTRA COSTS, ON THE DUE DATE BY BUYER.

Should the payment not be made within the contractual period, or be incomplete, Seller retains the right to claim back the delivered products. As collateral security for the payment of the purchase price of the products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes purchase money security interest under the California Uniform Commercial Code.

In the event of a claim, the products found will be deemed the last invoiced and will thus be claimed back to the amount of outstanding invoices.

Notwithstanding the date of transfer of title, the transfer of risks of loss and damage of products will be done upon delivery and receipt of the products by Buyer. Therefore, Buyer must ensure the preservation of said products and cover them sufficiently against all risks of loss, destruction and theft. During the term of the business relationship between the parties, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than USD 5,000,000 with financially sound and reputable insurers. Upon Seller's request, Buyer shall provide Seller with a certificate of insurance from Buyer's insurer, evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Seller as an additional insured. Buyer shall provide Seller with 30 days' advance written notice in the event of a cancellation or material change in Buyer's insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller's insurers and Seller.

6. INTELLECTUAL PROPERTY RIGHTS

Buyer has no intellectual property rights over Seller’s products, hardware, advertising documents, presentation documents and product packaging.

Seller retains exclusive ownership of such rights.

Software or intangible elements incorporated into Seller’s products are not transferred to Buyer and shall remain the sole and exclusive property of Seller, which Buyer hereby acknowledges and accepts.

Unless otherwise specified in the license agreement provided with a software product, Seller solely grants Buyer, in consideration of the payment of the price, a personal, non-exclusive license for these software elements, strictly limited to the purposes subject to such requirements as set forth in the accompanying license, and non-transferable, except to any possible assignee of said products. Buyer is solely authorized to install the software as an executable version, use it for the purposes for which it is designed and to reproduce the documentation provided by Seller. Buyer has no access right to the software’s source code.

Therefore, Buyer will refrain from permanently or temporarily replicating said software products, either in part or in full, by any means and form whatsoever, using them for any other purposes than those for which they are initially designed, forwarding them to a third party for any reason whatsoever, decompiling, disassembling, decoding, or performing any reverse engineering operation, translating, adapting, arranging or amending the software products, exporting them, merging them with others, or correcting any errors.

Buyer shall not at any time, directly or indirectly, (i) remove, delete, add to, alter, or obscure any specifications, documentation, license agreement, or any warranties, disclaimers, copyright, trademark, patent, or other intellectual property, proprietary rights, or other notices, or any marks, symbols, or serial numbers (including any Seller trademarks) that appear on or in connection with any software as provided by Seller; or (ii) under or in connection with any part of this Agreement or its subject matter, perform any act that, or fail to perform any act the omission of which, infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or violates any applicable law.

7. BUSINESS REFERENCES

Seller may take advantage, as a business reference, in its advertisements, brochures, posters, pamphlets, commercial documents, leaflets, miscellaneous publications and any promotional materials, as well as during trade shows and conferences, of the products delivered to Buyer.

Buyer authorizes Seller to mention their name as well as to replicate their logo on said media, for the sole purposes provided for under this article.

8. LIMITED WARRANTY 

Seller warrants to Buyer that for a period of 2 years from the delivery of the products to Buyer (the “Warranty Period”), that such products will be free from material defects in material and workmanship.

As such, should Buyer notice any material defect in material and workmanship affecting the product during the Warranty Period, Buyer must notify Seller immediately so that Seller can verify that the problem is not due to improper installation. As the case may be in its discretion, Seller may dispatch a member of its staff on site to verify that the product is installed according to specifications. Should Buyer deny Seller access to the product on site, Seller may refuse to apply the above warranty.

Should the product be found to be defective following this first verification and according to standard conditions of use, owing to material, component and manufacturing defects, Seller may, at its sole initiative, either repair or replace the product in keeping with the conditions listed below.

Repaired parts or the replacement product will be covered by a new 6 month warranty from date of delivery.

Seller’s warranty does not cover failures resulting from:

• An installation that does not comply with the instructions stated in the product installation guide
• A disaster (fire, water damage, lightning, storm, etc.), vandalism, damage caused by an animal or misuse of the product,
• Damage to a product owing to the passage of a vehicle or machinery if the product or its installation has not been designed for this purpose.
• A change to the product or operation on the product performed by any person not authorized by Seller,
• Improper product maintenance.

EXCEPT FOR THE ABOVE LIMITED WARRANTY SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Products. Third Party Products are not covered by the above limited warranty. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT. Seller shall not be liable for a breach of the above limited warranty if: (i) Buyer makes any further use of such Products after giving notice of the defect to Seller; (ii) the defect arises because Buyer failed to follow Seller's oral or written instructions as to the storage, installation, commissioning, use, or maintenance of the Products; or (iii) Buyer alters or repairs such Products without the prior written consent of Seller. THE REMEDIES SET FORTH IN ARTICLE 2 AND THIS ARTICLE 8 ARE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS ARTICLE 8.

9. AFTER-SALES SERVICE

Seller provides Buyer with a separate after-sales service for the repair of products with defects which do not fall within the limited warranty set forth in Article 8.

In this case, Buyer may send the product in question to Seller ‘s head office, following which Seller will analyze the product and issue an estimate to Buyer for the repair of the product in question, subject to the technical feasibility of the repair.

The repair service falls under an express agreement between Seller and Buyer.

Unless otherwise agreed between the parties, shipping costs are borne by Buyer and return costs are borne by Seller.

Unless otherwise specified on the estimate, Seller will use commercially reasonable efforts to repair the product within ten business days from the receipt by Seller of the estimate signed by Buyer.

10. TERMINATION

In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement in the event Buyer’s failure to pay the sums owed on their due date;.

Termination will be effective 30 calendar days following written notice issued to Buyer, subject to the latter’s failure to fully settle the payment within the aforementioned period.

Furthermore, should Seller terminate the Agreement pursuant to this Article, and by way of compensation, Seller shall be entitled to retain the sums already paid by Buyer to settle the debt.

11. LIMITATION OF LIABILITY

IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED [THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER IN THE LAST 12 MONTHS PRECEDING THE CLAIM.

The above limitation of liability shall not apply to (i) liability resulting from Seller's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.

12. COMPLIANCE WITH LAW

Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Buyer. Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes duties or penalties on the Products.

13. GENERAL

Assignment. Buyer shall not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of Seller. Any purported assignment or delegation in violation of this Article is null and void. No assignment or delegation relieves Buyer of any of its obligations under these Terms.

Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

No Third-Party Beneficiaries. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.

Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of], and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

Severability. If any of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.

Survival. Provisions of these Terms which by their nature should apply beyond their term will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Governing Law, Submission to Jurisdiction and Survival.

Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.