GENERAL TERMS AND CONDITIONS OF FLASHNET SALES AND SERVICES IN FORCE AS OF JULY 2019
Unless otherwise expressly agreed in writing, all offers, orders, shipments, uses of FLASHNET’s (Seller) hardware, firmware and software license (“Products”), Software as a Service, technical support (“Services”) are governed by these general terms and conditions (“General Terms and Conditions”-GTC). Any terms and conditions stipulated by the Buyer which are different from the General Terms and Conditions shall be valid only if expressly agreed by Seller in writing. These General Terms and Conditions constitute the entire, complete and exclusive agreement between Seller and the Buyer (“the parties”). By placing an order and/or taking delivery of Products or Services, Buyer accepts these General Terms and Conditions.
All orders placed by Buyer are subject to written acceptance by Seller. Orders may not be cancelled or rescheduled without Seller’s prior written consent. Buyer is responsible for the accuracy of its order and any Buyer’s specification and for supplying any relevant information within sufficient time to enable Seller to perform the contract for delivery of Products/Services. Seller may in its sole discretion allocate Product to its Customers. Seller may designate certain Products as NCNR (non-cancellable, non-returnable) or C/S (Customer specific) and the sale of such Products shall be subject to the special terms and conditions contained in Seller’s NCNR/Special Product Agreement, which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere. Seller reserves the right to make changes to the specifications of any Product and/or Services supplied which are required to conform with any applicable safety, statutory or EC requirements or, where Product is to be supplied to Product’s specification, which do not materially affect the quality or performance, or resulting from any change in manufacturer’s product specification. – .
Orders shall not be effective until they are confirmed by Seller’s order acknowledgement and/or proforma invoice.
Seller reserves the right to refuse any request for a Commercial Offer (as defined hereinafter) from a Buyer which has not carried out the obligations for which it was responsible in terms of a previous Order, in particular payment of the Price (as defined hereinafter) of the latter or inability to comply with the Romanian and International legal framework for export.
As the case may be, Seller will send to the Buyer a technical and commercial offer detailing the Products and Services (hereinafter the “TCO”) based on the Buyer’s specifications (hereinafter the “Specifications”).
Seller will send to the Buyer either a TCO containing a commercial offer, a commercial offer, or a contractual proposal, accompanied by the GTC (hereinafter, whatever the case, the “Commercial Offer”).
The Buyer will return the Commercial Offer bearing the note “Approved for Order” (hereinafter the “Order”) duly initialled, dated and signed, within the duration of validity mentioned on it.
The Buyer may also return its own order form mentioning the reference of the Commercial Offer (hereinafter the “Order Form”). In this case the Buyer acknowledges and accepts without reserve that if there are contradictions between the terms of the Order Form and the Commercial Offer, the terms of the latter will prevail.
On receipt of the abovementioned items Seller will send to the Buyer an acknowledgement of receipt summarising the Order, mentioning the estimated Delivery date (as defined hereinafter) and constituting acceptance of the Order by Seller (hereinafter the “Order Receipt Acknowledgement”).
Invoices are sent to the Buyer by any possible means (electronic or postal)
All prices and charges are exclusive of transportation and insurance costs, duties, bank charges and fees and all taxes including, but not limited to Value Added Tax. Buyer agrees to pay these taxes unless the Seller agrees in writing that the sale is exempted. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon.
When applicable, transportation and taxes shall appear as separate items on Seller’s invoice.
Seller reserves the right to modify prices for Products not yet shipped if the raw material prices have significantly changed and shall notify the Buyer thereof as soon as possible.
Seller’s standard terms of payment are 100 % advance payment unless otherwise specified in writing by Seller. Seller may invoice each shipment separately and each shipment shall be considered a separate and individual contract. Buyer agrees to pay Seller’s invoice in full without any deductions or set-off.
Seller reserves the right to establish or change credit or payment terms when, in Seller’s sole opinion, Buyer’s financial condition or payment record warrants it.
Time for payment of invoices is of the essence. All late payments shall be charged interest computed on a daily basis from the due date until paid in full. Seller is entitled to receive interest at the rate of 0.1% per day plus reimbursement for costs of debt collection (including reasonable legal fees of Seller and court costs) to collect full payment for Products/Services supplied.
If payment is late Seller shall not be obliged to continue performance and or to carry out any further work under the contract for delivery of the Products/Services or on any other contract with the Buyer; and if any of the Buyer’s obligations to the Seller are not fulfilled or Buyer fails to pay for Products/Services supplied, Seller may, without prejudice to other remedies available, cancel, suspend or terminate the contract for the relevant Products/Services.
Buyer shall perform incoming inspection as necessary to ascertain that the Products shipped correspond to the order confirmation. Buyer may reject those Products that do not correspond to the order confirmation within five (5) business days from the receipt of shipment. In the event the Buyer does not reject the Products within the five (5) business day period, the Buyer shall be deemed to have accepted the delivered Products in full.
a) Seller warrants that so far as it is reasonably able so to do, it will transfer to Buyer the benefit of any transferable warranties given by the relevant manufacturer of the Products (subject always to the terms, conditions and limitations of any such warranty) and any other rights which the Seller may enforce against the manufacturer. Buyer’s remedies relating to any claim that Products are defective or not in accordance with the contract for their supply or not in accordance with any express description, representation, condition or warranty implied by law or any other claim in respect of the Products or any workmanship relating thereto shall in all cases be limited to enforcement of the manufacturer’s warranty (as mentioned above) and the Seller shall not be liable for damages, compensation, costs, expenses losses of any kind, direct or indirect or consequential and any other remedy which would otherwise be available in law is hereby excluded (save only to the extent that such exclusion is prohibited by the applicable governing law). IT IS BUYER’S OBLIGATION TO REQUEST COPIES OF ANY APPLICABLE MANUFACTURER WARRANTIES AND BUYER SHALL BE DEEMED TO HAVE ACCEPTED SUCH WARRANTIES UPON ACCEPTANCE OF DELIVERY OF THE PRODUCTS. (b) Seller’s exclusive obligations with respect to any non-conforming Product or Services or breach of warranty or condition in relation to quality, description, fitness for purpose, merchantability or suitability of Products or Services shall be, at Seller’s option, to repair or replace the Product, if it is determined to be defective, or to re-perform the Service, or to refund or credit the Buyer the price paid for the relevant Products or Services. (c) THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES, GIVEN BY SELLER IN CONNECTION WITH THE PRODUCTS AND SERVICES, AND SELLER DISCLAIMS AND EXCLUDES (TO THE FULLEST EXTENT PERMITTED BY LAW) ALL OTHER WARRANTIES AND CONDITIONS (WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE) INCLUDING, BUT NOT LIMITED TO THOSE RELATING TO QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT OF THIRD PARTY RIGHTS AND LATENT DEFECTS and subject to the following clauses 6(d) to (k). (d) Where the Products and/or Services are sold to a consumer within the meaning of the Unfair Contract Terms Act 1977 under a consumer transaction as defined by the Consumer Transactions (Restrictions on Statements) Order 1976 the CONSUMER’S STATUTORY RIGHTS ARE NOT AFFECTED BY THESE CONDITIONS. (e) Replacement Products are warranted as set forth above. Any Products repaired or serviced by Seller are warranted as provided in this Section 6 for the remainder of the warranty period or ninety (90) days after the Products are returned to Buyer, whichever is later (based upon the date that repair or other agreed service is completed). (f) This warranty shall not apply to any Products that have been subject to misuse, improper testing, assembly, mishandling, or which has been operated contrary to current instructions relating to installation, maintenance or operation, or contrary to industry standards relating to acceptable input power. (g) Seller shall have no liability for any copyright, design or patent infringement, which may occur, as a result of the sale of Products to Buyer. Buyer’s only remedy or recourse for copyright, design or patent infringement shall be against the manufacturer of the Products. There shall be no remedy or recourse against Seller or the manufacturer to the extent the infringement arises from or is otherwise based upon (i) the manufacturer’s or Seller’s compliance with the particular requirements of Buyer that differ from the manufacturer’s standard specifications for the Product; (ii) modifications or alterations of the Product other than by the manufacturer; or (iii) a combination of the Product with other items not furnished or manufactured by the manufacturer or Seller. (h) SUBJECT TO CLAUSE 6(j) BELOW, SELLER SHALL NOT BE LIABLE TO BUYER BY REASON OF ANY REPRESENTATION (UNLESS FRAUDULENT) OR ANY IMPLIED WARRANTY, CONDITION OR OTHER TERM OR ANY DUTY AT COMMON LAW OR UNDER AN EXPRESS TERM OF THE AGREEMENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OR PROFIT, TURNOVER, BUSINESS, GOODWILL OR OTHERWISE) COSTS, EXPENSES OR OTHER CLAIMS FOR COMPENSATION WHATSOEVER (WHETHER CAUSED BY SELLER’S NEGLIGENCE OR THAT OF ITS EMPLOYEES OR AGENTS OR OTHERWISE) WHICH ARISE OUT OF OR IN CONNECTION WITH THE SUPPLY OF THE PRODUCTS AND/OR SERVICES OR THEIR USE OR RESALE BY BUYER AND, (i) SELLER’S ENTIRE LIABILITY UNDER OR IN CONNECTION WITH THE AGREEMENT SHALL NOT EXCEED THE PRICE OF THE PRODUCTS AND/OR THE SERVICE. FORMING THE SUBJECT OF THE BUYER’S CLAIM (j) PROVIDED ALWAYS THAT NOTHING IN THESE TERMS AND CONDITIONS SHALL OPERATE OR BE CONSTRUED SO AS TO EXCLUDE OR RESTRICT THE LIABILITY OF THE SELLER FOR FRAUD DEATH OR PERSONAL INJURY CAUSED BY REASON OF THE NEGLIGENCE OF THE SELLER, ITS EMPLOYEES OR AGENTs (k) if the Buyer wishes to claim under the foregoing warranties the Buyer must notify the Seller within seven days of discovery of any defect and in any even no later than three months of the delivery of the relevant Products, otherwise Buyer waives its rights and Seller shall have no liability for any alleged defect. The above warranties are not assignable, and Seller cannot accept warranty returns directly or indirectly from Buyer’s own customers or from the user of the Products. Nothing herein shall create any privity of contract between the Seller and the Buyer’s own customers. Seller relies on information from Product manufacturers or intermediate suppliers relating to product content or description (including, if applicable, lead free content or description indicating Product is ROHS compliant). Seller shall not be liable in the case of misrepresentation, misleading information or act or omission of the manufacturer or intermediate supplier regarding Product content or description. In any event, Seller’s liability in any case of supply of non-compliant Product is limited (at Seller’s option) to replacement of Product supplied or refund or credit of the invoiced price paid by the Buyer for the Product supplied.
This warranty covers every lack of conformity or hidden defect with regard to the Products and Services, to the exclusion of any other express or tacit warranty.
Subject to applicable regulations, all Products are guaranteed for a period of twenty four (24) months from the date of their Delivery (hereafter the “Product Warranty Period”).
This warranty does not cover wear parts if any.
Should the guarantee be enforced, any Product return is subject to prior approval by Seller under an incident ticket opened by the Buyer, it having been specified that this prior approval does not carry recognition by Seller of the defectiveness of the Product in question, and will be returned to Seller at the expense and risks of the Buyer by a carrier chosen by the Buyer.
Seller undertakes to repair or replace, at its sole discretion, any Product under warranty, considered to be defective by Seller, as soon as possible. In this case only any replacement Product and/or Product having undergone repairs will be returned to the Buyer in EUROPE at the expense of Seller. Apart from this case, or in the case of a return outside EUROPE, all the return transport charges will be at the expense of the Buyer.
If the Product returned within the scope of the warranty finally proves to be in good operating condition or is excluded from the enforcement of the warranty the intervention services performed by Seller on the Product concerned will be invoiced to the Buyer, in accordance with a Commercial Offer it will have been sent and will have accepted, prior to any intervention by Seller.
No extension to the duration of this warranty shall be provided to cover the time for which the Product was not available even in case of replacement of the Product.
If the Buyer wishes to invoke the warranty it shall notify Seller of its intention by email to the address [email protected], and the latter shall provide the Buyer with details of the procedure to follow.
In accordance with the applicable regulation, the warranty cannot be enforced if the Buyer fails to make its payments for the relevant Order according to this GTC and/or to the Commercial Offer.
Any warranty is excluded in the event of (i) any misuse and/or use non-compliant with the Documentation and/or for the destination of any Product and/or Software and/or deliverable resulting from Services, in particularly including (non- exhaustive list): the use of Software and/or Products in an environment not planned for this purpose (humidity, temperature, etc.), the application of inadequate voltage at the input and/or output of the Products (including in case of lightning), the breakage of a connector, the opening of Products without the prior agreement of Seller, the return of a Product in the context of the warranty which has not been sufficiently protected for transport (namely in particular (non-exhaustive list), bare electronic cards should be returned in an antistatic film/pouch and the boxes (including their external connectors) must be sufficiently protected), etc., (ii) use non-compliant with the laws and regulations in force in the countries of use of the Products, Services, and/or Software, (iii) failures and/or damages arising from one or more items supplied by the Buyer, a third party product and/or software, (iv) combination of any Product and/or Software with another hardware product and/or software whatsoever resulting in the infringement of the rights of a third party and/or malfunctioning and/or non-conformity of the Product and/or Software, (v) intervention of a third party not approved by Seller for repairs and/or maintenance, (vi) negligence or lack of maintenance,
(vii) breach or alleged breach by a Product and/or Software of patent(s) held by a third party, (viii) change of battery of Products due to normal battery end-of-life under conditions of use compliant with the Documentation, (ix) change of SIM card due to the migration of the Buyer to a new network telecommunications operator, or (x) force majeure. The Buyer guarantees Seller on demand against any damage and/or request of any nature, to which the latter would be subject consequent to the cases mentioned in Points (i) to (vi) above.
Buyer certifies that it will be the recipient of Products to be delivered by Seller. Buyer agrees that the Products are subject to the export and/or import control laws and regulations of various countries (and in particular are/maybe subject to the export control) and agrees that the Products/Services will not be used for purposes associated with any chemical, biological, nuclear weapons or missiles capable of delivering such weapons, or in support of any terrorist activity or any other military use, nor will they be re-sold if it is known or suspected that they are intended to be used for such purposes. Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Products and/or Services into the country of destination and for the payment of any duties thereon. Buyer further agrees to comply strictly with all export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. In the ordinary course of the Seller’s business, the Seller distributes Products which it purchases from the manufacturer thereof and Seller makes no alterations whatsoever before sale to the Buyer. In so far as it is practicable the Seller maintains the integrity of and sells the Products in the manufacturer’s packaging. Buyer agrees that in all cases, the Buyer has knowledge of the origin of the Products and all Buyers orders are placed in that knowledge and at the specific request of the Buyer. In selecting and ordering the Products, Buyer agrees that it is using its own skill and judgement. Buyer agrees that Products sold by Seller are not designed for use in life support, life sustaining or nuclear applications or in devices or items intended for surgical implant into the body, or other applications or products for which a product failure may result in personal injury, death, or catastrophic property damage. If Buyer sells or otherwise uses the Products for such applications, or breaches its obligations relating to export restrictions, product use or mis-uses the Products in the manner, the Buyer agrees that it does so completely at its own risk and irrevocably undertakes to indemnify Seller for any damages resulting from such sale or use or mis-use, including Seller’s reasonable legal fees and expenses.
Taking into consideration that Seller is part of ENGIE Group and subject to all Policies and Procedures applicable to ENGIE Group, Buyer acknowledges that it has read and agrees to adhere to the commitments adopted by ENGIE Group on ethics and social and environmental responsibility, as set out in its reference documents and in its Vigilance Plan. The ENGIE Group’s commitments can be found on its website www.engie.com and www.engie.ro. In this respect, Buyer represents and warrants to Seller that it complies with the international and national laws applicable to the contract (including any amendments made to those laws during the term of this contract) and that it complied with those laws during the six-year period immediately preceding the signing of the contract, relating to:
(i) human rights and individual fundamental freedoms, in particular the prohibition of (a) child labour and any other form of forced or compulsory labour; (b) any type of discrimination within Buyer company – or Buyer group of companies as the case may be – or in its dealings with its suppliers/providers or subcontractors;
(ii) embargoes, arms and drug trafficking and terrorism;
(iii) trade, import and export licenses and customs requirements;
(iv) the health and safety of employees and third parties;
(v) employment, immigration and the ban on using undeclared workers;
(vi) environmental protection;
(vii) white-collar crime, mainly corruption and bribery, fraud, influence peddling (or the equivalent offence under the national law applicable to this contract), obtaining by fraud, theft, misuse of company property, counterfeiting, forgery and use of falsified documents, and any related offences;
(viii) anti-money laundering measures;
(ix) competition law.
As regards its own operations, Buyer undertakes to actively cooperate with Seller and to take the required action to allow Seller to fulfil its own legal obligations arising under its duty of vigilance. To this end, Buyer shall assist, in particular, with the implementation of the measures set out in the Vigilance Plan as stated above (risk mapping, alert and whistleblowing mechanism etc.) and immediately report to Seller any serious breach or, any circumstances that could potentially constitute a serious breach, of the above-mentioned rules, in the performance of its relationship with Seller.
Seller may require Buyer to prove its compliance with the requirements set out in this clause at any time and may audit Buyer, directly or through a third party, at any time and at its own expense, provided that it gives prior notice of the audit to the supplier/provider. In the event of an audit, Buyer undertakes to grant Seller employees access to its premises and/or its sites and to provide Seller with all information and/or documents that it may request for the successful completion of the audit.
Any breach of the provisions of this clause by Buyer will be treated as a breach of contract justifying the suspension and/or termination of the contract by Seller as set out in the General Terms and Conditions.
Seller’s decision not to invoke at any given time any one of the clauses herein cannot be considered as renunciation or waiving of its subsequent right to invoke the same clauses.
Seller undertakes to repair any direct prejudices which the Buyer may suffer in the event of the non-fulfilment or incorrect fulfilment of the Order due to its actions or to those of one of its employees (not including delivery).
Seller shall not be held liable for indirect and immaterial prejudices (such as loss of business, loss of clientele, loss of opportunity, loss of data, etc.), which is expressly accepted by the Buyer.
The Buyer acknowledges and accepts that it is solely and fully liable for the use and/or the distribution of Product, Service and/or Software.
If applicable, the Buyer undertakes to use and/or market the Software, Services and/or Products in accordance with the laws and regulations applicable to such operations, and warrants Seller on demand with regards to such obligations.
In all circumstances, it is expressly agreed by the Parties that, subject to the applicable regulation, the total, for all causes combined, of the compensation, damages and costs of all kinds which may be assumed or paid by Seller for the benefit of the Buyer, subsequent to a definitive decision rendered by a court of competent jurisdiction, cannot exceed an overall maximum amount for all disputes combined whose value is equal to fifty per cent (50%) of the amounts excluding taxes collected by Seller under the terms of the disputed Order.
Every action carried out, dispute raised or demand made of any kind by the Buyer with regard to Seller relating to the fulfilment of the Order should be initiated no later than six (6) months from the day the Buyer knew or should have known the facts which prompts the action, dispute or demand, subject to debarment, and subject to the applicable regulation.
The provisions herein establish a division of the risks between the Parties. The price reflects this division, and the liability limitation described.
The Parties undertake to maintain the confidentiality of all information regardless of their nature, exchanged, collected or arising from the establishment of any Commercial Offer and from performance of any Order (hereinafter, the “Confidential Information”).
The obligations on the Parties under the terms of this Article do not apply to Confidential Information with regard to which the receiving Party can prove (non-cumulative exceptions):
-that it has disclosed this information after first obtaining written authorisation from the other Party or that the disclosure was made by the said other Party;
-that this information was in the public domain when it was passed on by the other Party, or that it entered the public domain after being communicated without this receiving Party committing any fault;
– that this information was received lawfully from a third party not subject to any confidentiality obligation;
– that on the date on which this information was communicated by the other Party, it already possessed lawfully this information;
– that the disclosure of this information was ordered pursuant to an imperative legal or regulatory provision, or to a definitive legal decision rendered by a court of competent jurisdiction, or upon executive arbitral definitive decision. The Party which is subject to a disclosure obligation of this kind must, wherever possible, notify the other Party in advance, and, where applicable, request or put the other Party in position to request, the implementation of all the measures or procedures necessary to protect the confidentiality applicable in this instance. In any case, if disclosure is nonetheless lawfully required, the Party required to disclose shall provide its best efforts to disclose only that portion of the Confidential Information which is legally necessary or appropriate to fulfil its obligation.
Thus, the Parties undertake to, as of the date of the Order, and during the ten (10) years following the end of its performance, for any reason or purpose whatsoever, to disclose, in any form whatsoever, regardless of the ground, whole or part of the Confidential Information.
Each Party undertakes to ensure that its representatives, employees, agents and eventual subcontractors to whom it discloses whole or part of the Confidential Information comply with this confidentiality obligation, and to disclose Confidential Information only on a need-to-know basis to people bound by confidentiality.
Seller declares that it holds professional civil liability insurance in the context of its business activities in relation to the GTC with a company known to be solvent and undertakes to maintain and be able to justify of this insurance cover for the entire duration of the execution of the Order.
In the event of “Force Majeure” neither Party shall be considered to be in default or in breach of its obligations to the extent that performance of such obligations is prevented or delayed by such event. “Force Majeure” means any circumstances beyond the reasonable control of either Party, including, but not limited to, accident explosion, fire, storm, earthquake, flood, terrorist acts, war, the bankruptcy of any supplier, strikes, acts of governments and their agencies, and governmental or their agencies’ laws, regulations, rules, orders and decrees or other legislative, administrative or judicial mandates.
In case of processing personal data in connection with this agreement, each party undertake to comply with data and privacy protection legislation, including without limitation the General Data Protection Regulation, national laws or any resolution that Romanian Surveillance Authority may provide in connection with.
Each party shall disclose to the other party personal data regarding its employees or its legal representatives in charge with the performance of the agreement. Such data may be: identifiable information, position, telephone number, employees’ or legal representatives’ email addresses, the activity carried on.
In order to avoid any doubts, the parties acknowledge and agree to determine, independently, the purposes and the means of the processing of personal data in connection with the agreement. More specifically, the parties agree and undertake not to act as joint controllers or to be in a relation like data controller – data processor, and each party shall act like an independent data controller for its personal data processed in connection with this agreement and none of the parties shall be responsible for any other’s party breaches of the applicable legislation.
In case of any party will act as a data processor for the other party or both parties will act as joint controller, they undertake to conclude a mandatory Agreement according to articles 26 and 28 from the Regulation and in accordance with any other legal provisions that may be applicable.
Either party may terminate a quote, order or license upon the other party’s insolvency, bankruptcy, liquidation or filing of any application therefore, seizure of the other party’s assets or assignment to the benefit of its creditors. Seller may terminate a quote, order and/or license with immediate effect in case of a material breach of the Buyer’s obligations (including but not limited to breach of Use Restrictions). Seller may terminate a quote, order, delivery and/or license in case a third party claim prohibits Seller to develop, produce, provide, sell or offer for sale a Product, software or license.
This Agreement shall be governed and construed in accordance with substantive European Law, except for the conflict of law rules.
The interpretation of the clauses of the Agreement, as well as any disputes regarding their completion will be solved amiably, through conciliation. If agreement between the Parties’ positions is not reached through such conciliation, the dispute will be settled by the common-law courts located in Seller’s jurisdiction.
Ownership of the Hardware shall remain with Seller until receipt of full payment. No intellectual property rights are assigned or sold.
The Buyer shall have no pledge or lien on the Product prior to payment.
Buyer is forbidden to assign its rights and/or obligations in part or entirely to a third party without Seller’s written approval.
If any term of the General Terms and Conditions is or becomes illegal, invalid or unenforceable in any applicable jurisdiction, this shall not affect the legality, validity or enforceability of any other term of the General Terms and Conditions, and such term shall be replaced by the term that comes closest to its intended economic purpose to the maximum extent authorized by law.