1. General

ELA INNOVATION (hereinafter the “Vendor”) designs, manufactures and markets electronic devices that can integrate software developments such as beacons, Bluetooth sensors, tags, high performance badges and that are presented in particular on its website (hereinafter the “Site”) (hereinafter the “Products”) and in its catalog (see article 9 hereinafter).

In accordance with Article L 441-1 of the French Commercial Code, these General Terms and Conditions of Sale constitute the sole basis of the commercial relationship between the parties. Their purpose is to define the conditions under which ELA INNOVATION supplies the Products to professional clients (“the Purchasers”) who request them, via the Vendor’s website, by direct contact, via a paper or digital medium. They apply, without restriction or reservation, to all Products sold by the Seller to Buyers in the same category, regardless of the clauses that may appear in the Buyer’s documents, and in particular its general terms of purchase.

In accordance with the regulations in force, these General Terms and Conditions of Sale (GTCS) are systematically communicated to any prospect or customer who requests them, to enable him to place an order. They are also communicated to any Buyer prior to the conclusion of a single agreement referred to in Articles L 441-3 et seq. of the Commercial Code, within the legal time limits.

Any order implies, on the part of the Buyer, the acceptance of the present General Terms and Conditions of Sale and of the general terms of use of the Seller’s website for electronic orders if this mode is activated on the Site. The information contained in the Seller’s catalogs, brochures and price lists is given as an indication and may be revised at any time. The contents of the GTC shall prevail over these documents.

The Seller has the right to make any changes that it deems useful. The signature by the Buyer of an order or a quotation established by the Seller implies the prior acceptance of the GTC, unless special conditions are accepted in writing.

Any modifications, amendments or changes to the terms contained in the GTC from Buyer are expressly excluded and the GTC shall be deemed to prevail over any document produced by Buyer. Seller’s failure to object to the terms contained in any subsequent communication from Buyer shall never constitute a waiver of any provision of the GTC.

The Seller may, in addition, establish Categorical General Terms and Conditions of Sale, derogating from these GTC, depending on the type of Buyer considered, determined on the basis of objective criteria. In this case, the Categorical General Terms and Conditions of Sale shall apply to all Buyers meeting these criteria

2. Order - Formation of the contract

The Buyer’s order is materialized either by an e-mail, or by an order form, or by the acceptance of a quote issued by the Seller directly or via the Site.

The sales contract is definitively and irrevocably concluded upon confirmation of the order issued by the Seller, and acknowledging receipt of the Buyer’s order or the return of a quotation issued by the Seller and signed by the Buyer. Any receipt and acceptance of Products by the Buyer also implies acceptance without reservation of the GTC.

3. Cancellation or modification of an order

Orders can only be changed or cancelled with the prior written consent of Seller for standard Products and with payment of Seller’s cancellation fee (flat 20% of the original price). Reduction or cancellation of orders for specific or custom-made Products is not possible. Products may only be returned with the prior written consent of the Seller.

If, during the execution of an order, Buyer makes changes in the specifications or characteristics of the Products or services, the terms of acceptance, prices and deadlines initially provided for shall be automatically revised by Seller.

4. Delivery and deadlines

Unless otherwise agreed, Products will be delivered to the address provided by Buyer at the time of ordering or as indicated in the order confirmation. Seller shall have the right, at its option, to make partial shipments of Products and to invoice each shipment separately. All delivery dates are indicative only, and Seller shall not be liable for any loss or damage resulting from any delay or failure to deliver for reasons beyond Seller’s reasonable control. Where delivery requires the intervention of a Seller’s technician, Buyer agrees to complete the pre-requisite document provided to it and to comply, without reservation, with the terms and conditions for on-site intervention set forth therein.

Any delays shall not entitle Buyer to cancel the order, refuse the freight or claim damages.

The Seller shall be released by operation of law from any time commitment in the event that the agreed payment terms have not been observed by the Buyer, in the event that the technical information to be provided by the Buyer is not received in due time by the Seller, or in the event, in accordance with Article 1218 of the Civil Code, of force majeure or events such as labor disputes, epidemic, war, requisition, fire, flood, tooling accident, significant scrap of parts being manufactured, interruption or delay in transportation or any other cause leading to total or partial unemployment at Seller or its suppliers.

5. Shipping

Except in the case where the carrier is chosen by the Seller, our freight travels at the risk of the recipient Buyer, regardless of the mode of transport. The transfer of risks to the Buyer occurs when the Products are handed over to the carrier. It is the responsibility of the Buyer to check the deliveries upon arrival and to make any reservations to the carrier within the legal time limits. In the event of damage or partial loss, attention is drawn to the need to make all reservations to the carrier on the consignment note, the CMR or the delivery note. The verification and control, in quality and quantity, will not exceed 3 days after receipt. ANY CLAIM RELATING TO A DELIVERY MUST BE NOTIFIED OR CONFIRMED BY REGISTERED LETTER WITH ACKNOWLEDGEMENT OF RECEIPT WITHIN EIGHT DAYS OF DELIVERY.

In case of international sales, delivery is subject to INCOTERMS EXWORKS or DAP according to what is agreed upon at the time of the order.

The Product whose delivery has not been complained about within the above-mentioned period cannot be returned to us unless we accept it in writing, and the delivery is deemed to be in conformity. However, the return of the material does not exempt the Buyer from paying the amount of the invoice on the agreed date. In no case, the Buyer will be able to make a deduction from the invoice without prior written agreement.

6. Price

The prices invoiced are, except in the following cases, those appearing on the proforma estimate and the order confirmation. However, they may be revised according to economic and monetary fluctuations that may occur during the course of an order on the sole basis of the following references: increase in raw materials, imported products, taxes related to the freight delivered, and transport rates and currency fluctuations.

They are established in principle by an estimate which is valid for a maximum of 30 days. They are firm and non-revisable for a first order. The Vendor reserves the right to modify them in the event of new orders for any reason whatsoever without the Buyer being able to claim any prejudice whatsoever.

Prices are quoted in Euros or, by agreement of Seller, in US dollars, exclusive of taxes, without discount, plus postage and packing, and are payable in Euros or, by agreement of Seller, in US dollars, unless otherwise agreed in the order confirmation.

Prices do not include customs procedures or payment of related duties.

7. Terms of payment

7.1 Only the payment terms stated in our price quotations or acknowledgements of receipt shall apply. Otherwise, the price is payable in cash before delivery. A deposit of 50% of the estimated price may also be required to validate the order.

7.2 In case of non-compliance with the payment deadline and without the need for a prior formal notice, the Buyer will be liable for the following late payment penalties. Pursuant to Article L 441-10 of the French Commercial Code, the interest rate for late payment penalties shall be equal to the interest rate applied by the ECB to its most recent refinancing operation plus 10 percentage points. The rate applicable during the first half of the year concerned shall be the rate in force on January 1 of the year in question. An additional amount of 40 € per payment incident will be charged as a fixed recovery fee.

7.3 Failure to meet a due date shall automatically result in all sums due becoming payable. Moreover, the Seller reserves the right to suspend or cancel orders in progress without prejudice to any other remedy.

Buyer waives the right to invoke set-off or the exception of non-performance which is not confirmed by an agreement with Seller or an enforceable court decision.

7.4 Any partial delivery shall be subject to partial invoicing

8. Reservation of ownership

The transfer of ownership of the Products is subject to full payment of the price by the Buyer, in principal and accessories, even in the event of the granting of payment deadlines. By express agreement, the Seller may enforce its rights under this retention of title clause, for any of its claims, on all of the Products in Buyer’s possession, said Products being conventionally presumed to be those unpaid, and the Seller may take them back or claim them as compensation for all its unpaid invoices, without prejudice to its right to terminate sales in progress. Buyer shall not pledge the Products and shall not transfer ownership of the Products by way of security. In the event of resale of the Products, Buyer agrees to immediately pay Seller any portion of the purchase price still due. This clause does not prevent the risk of loss of the Products from passing to Buyer upon delivery. It is understood that ownership of any software incorporated in or forming part of the Products shall always be retained by Seller or its licensee(s), as the case may be.

9. General product descriptions

9.1 All advertising documents (by way of example and not limitation: catalogs, leaflets, brochures, websites, etc.), commercial documents (by way of example and not limitation: price lists, etc.), technical documents (by way of example and not limitation: notices, diagrams, etc.) are only informative descriptions of our equipment intended to make it known.

9.2 This description does not in any way constitute a binding offer and, consequently, we expressly reserve the right at any time to make any changes that we deem necessary or that are likely to improve our equipment, without the Buyer having the right to request the cancellation of the sale or the modification of its conditions as a result of these changes. Only the establishment of a quote or an order confirmation freezes the terms of the order.

10. Limitation of liability

Acceptance of the material delivered shall relieve us of any liability for damages that Buyer may suffer if the material, whether or not integrated into a package, should create quality, reliability or commercial problems for Buyer.

Notwithstanding anything to the contrary contained in the T&Cs or any other document, Seller’s liability under these terms and conditions (whether for breach of contract, tort, indemnity, or otherwise) shall not exceed an amount equal to the total purchase price paid by Buyer to Seller for the Product(s) giving rise to such liability.

Notwithstanding anything to the contrary, in no event shall Seller be liable for any property damage or personal injury, whether indirect, special, consequential or incidental (including, without limitation, damages for loss of use of facilities or equipment, loss of revenue, loss of data, loss of profits or loss of goodwill), whether or not Seller was advised of the possibility of such damages or was negligent except for gross negligence or willful misconduct.

The Buyer shall ensure and bear the cost of collecting and disposing of waste electrical and electronic equipment (WEEE) under the conditions set forth in Articles 21 and 22 of Decree No. 2005-829 of July 20, 2005 as amended by the Order of October 8, 2014. When expressly agreed in the sales contract, the organization of the removal and treatment of the EEE placed on the market after August 13, 2005 may be entrusted to the Seller in accordance with Article 18 of Decree No. 2005-829. In this case, the Buyer undertakes to inform the Seller at the end of the life of his equipment, to decontaminate it and to deposit it with the certificate of non-contamination, at the collection point which will be indicated to him.

The financing of the removal and the treatment of the equipment will be taken in charge by the Buyer.

11. Warranty

11.1 Seller warrants the products to be free from any latent defects in material or construction which may appear under conditions of proper use within 24 months of shipment (except where otherwise specified). Provided that Buyer is current in all such payments to Seller and has properly used the products and kept and maintained them in good condition, Seller warrants that the products supplied, subject to the foregoing reservations, will be free from defects for 24 months after the date of shipment.

This warranty excludes the tag’s battery and does not cover cases where the life cycle of the RFID Active Tag would be shorter than the warranty period, due to the user’s specific settings, such as the very short transmission cycle of the tag’s frame. Seller may, at its option, repair or replace the affected Products, provided that such Products or their defective parts are returned to Seller, freight prepaid and properly packaged, prior to the expiration of such 24-month period or within one month thereafter, accompanied by a written claim specifying the date of purchase.

It is expressly stated by Seller and accepted by Buyer that Seller does not warrant that the computer programs supplied will operate without error or defect, and Seller has no obligation of result in this regard. No product may be returned for credit, except by prior agreement.

11.2 Before returning the Products in the event of a warranty claim, Buyer shall remove all items added or incorporated by Buyer. Seller shall not be liable for any loss or damage to any such items which are not so removed. Buyer’s return of the Products shall entitle Seller to remove such items from the Products without any liability on Seller’s part.

11.3 The warranty set forth in this section is accepted by Buyer in lieu of all representations, conditions or warranties, express or implied, statutory or otherwise, as to the condition, fitness for a particular purpose or performance of the Products (or any materials used in connection therewith) or as to the workmanship of such Products. It is understood that all such representations, conditions and warranties are hereby expressly excluded.

11.4 With the exception of any liability we may incur for death or personal injury resulting from negligence, we shall in no event be liable for any indirect, incidental or consequential damages to property or personal injury arising directly or indirectly from the supply of our products, irrespective of the cause of such damages, and irrespective of the basis of liability involved (contractual liability, quasi-liability, misinterpretation of our statements or otherwise).

12. Export Restrictions

Buyer acknowledges that each Product and any associated software or technology, including technical information provided by Seller or contained in documents, are subject to applicable export controls. Buyer shall comply with all applicable laws, regulations, treaties and conventions relating to the export, re-export and import of any Product. Buyer shall refuse, without first obtaining the necessary authorization from the appropriate governmental agency, to:

– Export or re-export any Product, or

– Export, re-export, distribute or supply any Product to a restricted or embargoed country or to a person or entity whose right to participate in the export has been denied or restricted by the appropriate authority.

Buyer shall cooperate fully with Seller in any official or unofficial audit or inspection relating to applicable export or import control laws or regulations, and shall indemnify and hold Seller harmless for or in connection with any violation of this section by Buyer or its employees, consultants, agents or customers.

13. Assignment of Jurisdiction

The Commercial Court of Montpellier -(Hérault-France) has sole jurisdiction to settle any dispute that may arise between the parties in the context of the GTC (including but not limited to their interpretation or execution).

The present GTC as well as the contracts between the parties resulting from them, whatever their form, are governed by French law and interpreted accordingly, both concerning the rules of substance and form.

14. Language and interpretation

The original language of these GTC is French. The original language of any contract concluded between the parties below is French. In the event of a dispute, the French version of the T&Cs shall prevail, even if a foreign language version has been established for the Buyer’s understanding. All interpretations will be made solely with respect to this French version.

15. Specific conditions of sale related to Beta Test campaigns

The Buyer acknowledges that he/she is aware that the products purchased are still in the testing phase and may therefore differ from the theoretical specifications. The Buyer acknowledges and agrees that as compensation, he/she will receive an exceptional discount as part of this Beta Test campaign.

As part of this Beta Test campaign, the Buyer agrees to collaborate with the Design Office and Technical Support teams in order to gather feedback. The Buyer therefore undertakes to respond to ELA Innovation’s requests by email and/or telephone until the closing date of the Beta Test campaign.