Smart & Connective

Terms of Sales

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The purpose of these General Conditions of Sale (“CGV”) is to define the terms and conditions of all sales made by the company SMART & CONNECTIVE (hereinafter referred to as “S&C”) to the integrator customer (hereinafter “Customer” ) of Material within the meaning defined in article ARTICLE 1. DEFINITIONS of these General Terms and Conditions. These General Conditions of Sale will only be waived by written agreement of the Parties. They constitute the basis of commercial negotiation within the meaning of article L.441-6 paragraph 1 of the Commercial Code. S&C and the Client are hereinafter referred to collectively as “the Parties” or individually as “the Party”.

Signing the Quote by the Customer constitutes acceptance by him of these General Conditions of Sale. In the absence of signature by the Customer of the Quote, the written confirmation of the Quote issued by S&C or the issuance of an order conforming to the Quote constitutes acceptance by the Customer of these General Conditions of Sale.

ARTICLE 1.DEFINITIONS

When used with a capital letter within the T&Cs, the following terms will have the definition given to them below, and whether they are used in the singular or plural:

“CGL” or “License” designates the agreement relating to the conditions of use of the Application Solution.
“Contract” means all of the following contractual documents, binding the Parties, in descending order of priority (i) the General Terms and Conditions, (ii) the G&C Quote and (iii) the Bill of Materials established by the Integrator.
“Data” means all data collected by the Hardware on the Site, loaded, stored and/or processed by the Application Solution.
“Documentation” means, where applicable, the standard documentation for the installation, use and maintenance Equipment, in the form of a Datasheet (technical sheet), installation instructions/manual, user manual for the Application Solution .
“Hardware” refers to the equipment and controllers listed in the S&C catalog and marketed by S&C within the framework of these General Terms and Conditions, hardware including one or more embedded software.
“Third Party Hardware” means equipment provided by third party manufacturers and suppliers referenced by S&C in its catalog as compatible and interoperable with the Application Solution, sold directly by the third party manufacturer/supplier.
“Quotation” means the commercial proposal issued by S&C, based on the Bill of Materials established by the Integrator.
“Service” means the building energy management service provided by S&C including the supply of Hardware and the Application Solution by S&C under the conditions of the General Terms and Conditions and CGL.
“Site” means the building in which the Service is deployed.
“Application Solution” means a software solution provided by S&C, in SaaS mode, relating to a portal allowing remote configuration/parameterization of Hardware and Third-Party Hardware and a mobile application, the functionalities of which are described in the applicable Services Agreement.
“Site Users” means the users of the site on which the Service is deployed, whether they are occupants of the buildings and/or operating companies mandated by said occupants, and holders of the License.
“Export Sales” means sales of the Equipment by S&C to a Customer registered outside of France.

 

ARTICLE 1. QUOTE - CONTRACT

Unless otherwise indicated in the S&C Quote, any Quote made by S&C to the Client is valid for thirty (30) days from the date of its issue, but is however subject to modification during this period upon written notice from S&C.

The sale is only concluded after (i) written acceptance of the Customer's order by S&C (or, in the absence of an order, acceptance of the Quote by the Customer), and (ii) receipt of a deposit in accordance with the timetable appearing, where applicable, in the Quote. Any subsequent modification of the order or additional elements on the Customer's order and any contradiction between the order and these General Terms and Conditions must be subject to prior written acceptance by S&C.

The information contained in any S&C commercial documents may be modified by the latter at any time, without any notice, in order to take into account changing technological developments or economic conditions.

No partial or total cancellation of the order by the Customer.

ARTICLE 2. PRICE, BILLING AND PAYMENT

2.1 PRICE
The unit prices appear in the Quote issued by S&C. Unless otherwise stipulated in the Contract, prices are in Euros, excluding taxes, customs duties or any government contribution, “Ex Works” – S&C website (Incoterms 2020). Prices are firm for the period indicated in the G&C Quote. Subsequently, these prices may be revised under the conditions provided for in these General Conditions of Sale.

With regard to Export Sales, in the event that S&C is forced to pay any tax, the Customer undertakes to reimburse it within thirty (30) days from the date of receipt of the vouchers. In the event that local legislation prohibits such reimbursement, S&C reserves the right to increase the Quote prices by an amount equivalent to the taxes thus incurred. In the presence of withholding tax applied to payments made by the Client, the latter undertakes to increase the amount of each payment subject to said withholding or to make an additional payment, so that S&C receives an amount equal to that which should have been received in the absence of withholding tax. Prices may be automatically adjusted to take into account any change in the tax legislation applicable to the Contract. Furthermore, all decisions relating to packaging, weight or customs formalities will be taken by S&C unless precise instructions have been given in writing by the Customer within a reasonable time, provided that these instructions comply with to French regulations. The additional costs will then be invoiced to the Customer.

2.2 BILLING AND PAYMENT
Invoicing is carried out according to the schedule appearing in the Quote. All payments are made within thirty (30) days of the date the invoice is issued. Unless otherwise agreed between the Parties, payments will be made by bank or postal transfer addressed to Smart and Connective SAS IBAN:
IBAN FR76 3000 3009 5000 0257 1157 715 BIC: SOGEFRPP

2.3 LATE PAYMENT
If the invoice is not paid when due, S&C, all rights and actions reserved, may interrupt any delivery, whatever the conditions stipulated in the order, until full payment of the sums due, and/or cancel the possible discount granted on the invoice, and/or invoice. Any late payment will automatically result, from the day following the payment date shown on the invoice, in the application of (i) default interest at a rate equal to the refinancing rate applied by the European Central Bank on the first day of the semester. of the calendar year during which the default interest began to accrue (January 1 or July 1), increased by ten (10) points, or three (3) times the legal interest rate in force, if this is successful to interest of a higher amount; and (ii) a fixed recovery compensation of forty (40) euros per invoice, as well as reimbursement of any recovery costs incurred, without prejudice to any damages and interest to which S&C may be entitled.

2.4 UNPREVISION
In the event of the occurrence of unforeseeable events or events excluded from the forecasts anticipated by the Parties (and in particular new legislative or regulatory provisions) after the start of the Contract likely to result in an upheaval of the economy of the Contract to the detriment of S&C, S&C is authorized to modify the terms provided for in the Quote, in order to take these developments into account.

ARTICLE 3. IMPREVISION

In application of the incoterm “Ex Works”, delivery of Equipment and Third Party Equipment is carried out at the expense, risk and peril of the Customer from their loading into the means of transport chosen for the purpose of making delivery and until 'upon receipt, including in particular transport and customs clearance, even if the organization of delivery is carried out by S&C at the Customer's request. From the date of shipment, the Customer assumes the risks of loss or deterioration of the Equipment and Third Party Equipment as well as liability for any damage they may cause. S&C will ship the Hardware and Third Party Materials in accordance with the shipping schedule communicated by S&C. The shipping times given by S&C are, unless otherwise stated, for information purposes only and will depend in particular on the availability of Third Party Equipment from their respective suppliers/manufacturers.

S&C reserves the right to make partial shipments and to invoice accordingly in proportion to the quantities delivered without the Customer being able to object or claim reimbursement of additional delivery costs.

The transfer of ownership of the Equipment will take place upon full payment of the price by the Customer. In the event of non-payment of invoices due by the Customer, S&C may claim its Equipment in whatever ownership it is in. The Customer undertakes to insure, at its own expense, the Equipment and Third Party Equipment ordered for the benefit of S&C, by ad hoc insurance, until complete transfer of ownership and to provide proof of this to the latter upon delivery. Failing this, S&C would be entitled to delay delivery until this proof is presented.

ARTICLE 4. INSPECTION AND ACCEPTANCE

The Customer will carry out a visual and quantitative inspection of the Equipment and Third Party Equipment upon receipt, and will notify S&C of any apparent defect, omission, or damage. The Customer also undertakes to complete the formalities provided for by article L. 133-3 of the Commercial Code by indicating any reservations within the delivery note provided by the carrier attesting to the good receipt of the Equipment and Third Party Equipment and by sending a copy of the declaration to S&C without delay. In the absence of notification to S&C by Registered Letter with Acknowledgment of Receipt (LRAR) within ten (10) working days following said receipt, the Equipment and Third Party Equipment will be deemed compliant and accepted by the Customer.

ARTICLE 5. COMPLAINT – COMPLIANCE OF EQUIPMENT AND THIRD PARTY EQUIPMENT

No returns for reasons other than non-compliance with the Contract will be accepted, unless expressly authorized in writing by a duly authorized S&C representative.
No return of all or part of the Equipment and Third Party Equipment may be made by the Customer without the prior written consent of S&C, giving rise to the issuance of a Return Slip.
When the defect is noted, it does not automatically lead to the rejection of the entire delivery. The part of the Equipment and Third Party Equipment conforming to the Contract will be subject to invoicing.
It is expressly stipulated that any complaint concerning a batch of Equipment and Third-Party Equipment presumed to be defective will only be admissible if each of the following four conditions is met:

(i) For each batch of Material and Third Party Material presumed defective, the exact reason for refusal as well as the quantities will be specified on the batch(es) concerned and the corresponding test results will be provided;

(ii) Each batch of Material or Third Party Material will be returned in its original packaging and in good condition;

(iii) The Equipment and Third Party Equipment will not be damaged in any way (especially during stock control, packaging, dismantling, etc.);

(iv) The Customer will not have made any modifications to the Hardware or Third Party Hardware.

It will be the responsibility of the Customer to provide any justification for defects or non-compliance. The Customer must allow S&C every opportunity to identify the defect or presumed non-compliance. In all cases, an S&C manager may travel to the Customer's site or appoint an independent expert to note the non-compliance of the Equipment and Third-Party Equipment and give agreement for the on-site destruction or return of the Equipment and Equipment. Third party defective to S&C, the transport linked to this return being the responsibility of S&C.

The Customer must also refrain, unless expressly agreed by S&C, from carrying out or having carried out by a third party the repair.

ARTICLE 6. LIABILITY – INSURANCE

S&C's liability is limited to repairing direct material damage resulting from poor performance of its contractual obligations.
As a result, S&C is not required to repair damage caused by any fault or negligence of the Client or third parties relating to the execution of the Contract.
Under no circumstances is S&C required to compensate for consequential or non-consequential immaterial and/or indirect damage, such as: operating losses, profit losses, commercial loss, etc.
All sums and damages combined, S&C's liability is capped at the amount excluding tax of the Equipment sold under the Contract in question. The Client guarantees the waiver of any recourse from its insurers or third parties in a contractual situation with it, against S&C or its insurers beyond the limits and for the exclusions set out above. Any action against S&C must be initiated within twelve (12) months following the damaging event. The Customer undertakes to take out any insurance that may be necessary in the context of its activity as installer and integrator of Equipment and Third Party Equipment, in particular under the Ten-Year Guarantee.

ARTICLE 8.WARRANTY

The Equipment is guaranteed against any non-compliance with the specifications contained in the Contract for a period of twenty-four (24) months from the date of delivery.
Concerning Third Party Material, only third party guarantees (publisher/manufacturer) are applicable.

The Hardware warranty does not apply in the following cases:

(i) Where the Equipment has been damaged or has not been stored by the Customer in accordance with the specifications;

(ii) When the Equipment has been subject to abnormal conditions of use (mechanical, electrical, thermal, etc.) during their installation or use due in particular to misuse, negligence, or a defect maintenance or normal wear and tear;

(iii) When the malfunction or defect of the Equipment results from extreme operating conditions (limit temperature, maximum or minimum voltage, etc.) as defined by S&C, or from a poor application choice by the Customer.

S&C's warranty will be limited to the replacement or repair of defective Equipment, at S&C's option. Under no circumstances will S&C be liable, even if it had been informed, for any direct or indirect damage, for any costs of supply or replacement of the Equipment, for any loss or loss of income or other consequential damage, for any case of force majeure and/or any cause arising in connection herewith.

S&C Equipment is not a security system. If the Customer were to integrate the Hardware into security units or systems or any other related equipment, S&C will not bear any liability in this regard.

ARTICLE 8. CUSTOMER OBLIGATION

The Customer is responsible for the compliant installation, implementation and configuration of Third-Party Equipment and Materials, ensuring the compatibility and interoperability of all of its supplies with Third-Party Equipment and Materials. Hardware and Third Party Hardware must be installed, configured, used and maintained in accordance with their Documentation.

The Customer guarantees to implement adequate safety and security protection measures in relation to the Service.

The Client undertakes to ensure that Users of the Site guarantee that they ensure the safekeeping of Third-Party Materials and Materials placed in their possession.

The Customer is responsible for compliance with the information appearing on the labels and packaging of Equipment and Third Party Equipment, and for communicating to Users of the Sites the S&C requirements if applicable.

The Customer is solely responsible for the harmful consequences resulting from the following hypotheses: (i) non-compliance with the instructions for installation, commissioning (including connection and configuration), operation, use and maintenance of the Hardware and Third-Party Equipment (e.g.: poor configuration of IT, technical, telecommunications equipment or poor programming of operating scenarios of the connected equipment themselves), disruptions or non-functioning of the telephone network connection, the internet network or the network electricity of the Customer and/or the User of the Site, (ii) disturbances in the radio environment of the Equipment (iii) association of the Equipment and Third Party Equipment with connected third party equipment that does not comply with S&C specifications.

The Customer undertakes to take out all applicable insurance, and in particular, where applicable, that of the ten-year guarantee.

Taking into account the various hazards linked to the combination of several technologies implemented, the Customer is warned that the Service requires observing precautionary measures consisting in particular of: (i) periodic testing of the proper functioning of the Equipment and Hardware Third parties when adding each new Hardware or Third Party Material (ii) the maintenance and regular verification of the Hardware and Third Party Material or the configuration of the Hardware and Third Party Material by the Client or any other professional third party designated by the User of the Site , to which the Customer undertakes.

The Client undertakes to obtain from the Site User all legal and regulatory authorizations necessary for any connection to the telecommunications means required for the operation of the Service.

The Client undertakes not to allow any third party to:

– Copy, modify, adapt or create derivative works from all Hardware and Third Party Material, including where applicable embedded software or attempt to discover the source code or access it, or modify, decrypt, extract, disassemble or decompile or reverse engineer this software, except to the extent Customer is permitted to do so under applicable law without S&C having the right to limit or prevent such activities;

– Attempt to obstruct the proper functioning of the Hardware and Third Party Materials and, in particular, attempt to circumvent security measures or other protection mechanisms, or alter, hack or disrupt the Hardware and Third Party Materials in any other way;

– Allow any robot or automatic process to act on or interact with Third Party Hardware and Equipment (unless prior agreement is given by S&C, particularly in the context of performance tests conducted by the Client and the characteristics of which will be communicated to S&C in advance ) ;

– Hide, modify or delete any notice relating to copyright, trademarks or other property rights appearing on the Material, without the prior agreement of S&C.

ARTICLE 9. ETHICAL AND SOCIAL RULES

S&C requires its Client (including its employees, agents or managers) to comply with all national, European and international rules relating to ethical standards and responsible behavior, including, but not limited to, respect for the rights of man, environmental protection, sustainable development and the fight against corruption.

ARTICLE 10. INTELLECTUAL PROPERTY

10.1 The Client is informed that the Service, as well as the documents communicated by S&C as part of the Contract, may be covered by intellectual property rights.

All data, reports, developments, improvements, know-how, trade secrets and, more generally, information, of whatever nature, whether or not protected by intellectual property law, designed, developed , implemented or not within the framework of this Contract and, in general, any document relating to the design, commissioning, installation and/or use of Equipment and Third Party Equipment, as well as any information technical or commercial nature provided in the Quotation, and more broadly within the framework of the Contract, remain the property of S&C, which is the holder of the know-how and the corresponding intellectual property rights.

Also the rights to the software embedded in the Hardware belonging to S&C remain acquired by S&C. The software embedded in the Hardware is subject to its own licensing terms and conditions: S&C grants a non-exclusive, non-assignable and non-transferable license to use the software embedded in the Hardware, for the duration of the Contract, and only to purposes of execution of the obligations borne by the Client.

10.2 In the event that a third party initiates an action for infringement of its intellectual property rights concerning the Material provided to the Client, S&C undertakes, at its sole discretion and at its expense, to use its best efforts to take legal action or settle . If an unfavorable final judgment were rendered against S&C, the latter could, at its sole discretion (i) license the rights of the aforementioned third party, or (ii) modify the incriminated Material so as to eliminate the infringement. The above commitment will only apply provided that the Customer has immediately informed S&C in writing - by LRAR - of any claim of infringement concerning the Equipment sold by S&C and that S&C has full control of the action or of the procedure whatever it may be. S&C's liability is expressly excluded if the infringement results from the combination or association of the Material delivered with any other supply or from any modification of all or part of the Material resulting from any intervention carried out other than by S&C.

10.3 The Client guarantees that it legitimately holds all the rights of use, modification and/or more generally all the required intellectual property rights attached to the elements that may be made available to S&C within the framework of the Contract. In the event of a complaint from a third party, the Customer will make it his personal affair and will assume all the consequences of this complaint, guaranteeing S&C against any complaint, claim or action against S&C concerning the elements.

ARTICLE 11.CONFIDENTIALITE

Unless otherwise stipulated, for the entire duration of the Contract, and for five (5) years following its termination for any reason whatsoever, the Parties undertake to keep the non-public information of the other Party confidential. whether they are of an administrative, commercial, legal, strategic, financial or technical nature and of which it may have become aware under the Contract. This confidentiality cannot prevent any communication to a public body or authority. S&C is authorized to cite the name and logo of the Client on its reference list in its publications and/or communications.

ARTICLE 12. FORCE MAJEURE

None of the Parties may be held responsible for the non-performance of its obligations if this failure results from a case of Force Majeure as defined by French legislation and case law.

The Party victim of Force Majeure will inform the other Party within a maximum period of fifteen (15) calendar days – by LRAR – of its occurrence, its duration and its foreseeable consequences. The obligations of the Parties will be suspended for the duration of the Force Majeure event. In the event that this suspension lasts more than thirty (30) days from its notification date (date of receipt or first presentation of the LRAR), the most diligent Party may notify the other Party by LRAR of the immediate termination of the Contract, without giving rise to any compensation.

ARTICLE 13. TERMINATION

Except in Force Majeure, in the event of serious breach of one of its obligations by one of the Parties, the other Party may give it formal notice to comply by Registered Letter with Acknowledgment of Receipt (LRAR).

In the absence of execution within thirty (30) days following receipt of said formal notice, or failing that its date of first presentation, the Party victim of the serious breach may automatically terminate the Contract by sending a second LRAR stating its desire to invoke the benefit of this clause, without prejudice to any damages to which it may be entitled.

ARTICLE 14. OTHER STIPULATIONS

14.1 NOTHING
The nullity or inapplicability of any of these stipulations will not entail the nullity of the other stipulations which will retain all their force and effect.

14.2 CESSION
The Client undertakes not to assign the Contract to a third party or transfer the Contract to an entity in its group without the prior written consent of S&C.

14.3 INTEGRALITY
These General Terms and Conditions constitute the entire agreement concluded between the Parties and replace in all respects previous agreements, letters of intent, letters and proposals between them, whatever their form or name and relating to the same object, with the exception of those listed herein.

14.4 NON-WAIVER
The fact that one of the Parties does not take advantage of any of these General Terms and Conditions at a given time cannot be interpreted as a waiver of the right to take advantage of them at a later date.

14.5 SURVIVAL
In the event of termination of the Contract for any reason whatsoever, any clause which provides for its survival in the Contract as well as any clause or annex, which by nature must survive the termination of the Contract will remain in force, including in particular Article 6 ( “Liability”), Article 13 (“Termination”) and Article 14 (“Confidentiality”) of these General Terms and Conditions.

14.6 PROOF CONVENTION
The Parties intend to establish, within the framework of their contractual relations, the rules relating to the evidence admissible between them in the event of a dispute and their probative force.
The following stipulations thus constitute the proof agreement entered into between the Parties, who undertake to respect this Article.

The Parties accept that in the event of a dispute the following elements and procedures will be admissible before the courts and will prove the facts they contain:

(i) Data recorded in the S&C computer system;

(ii) Emails exchanged between the Parties, as well as their reproduction; and or

(iii) Any other notification established under the conditions mentioned above.

 

ARTICLE 15. DATA PROTECTION

15.1 PROCESSING RELATING TO CONTRACT MANAGEMENT
Each party, as data controller, implements the processing of personal data relating to employees, managers, representatives or consultants of the other Party in order to manage the contractual relationship in accordance with Law No. 78/17 of January 6, 1978 amended on June 20, 2018, relating to computing, files and freedoms, and to Regulation EU 2016/679 of the European Parliament and of the Council of April 27, 2016 relating to the protection of individuals with regard to processing of personal data and the free movement of such data and repealing Directive 95/46/EC (“GDPR”). The Parties collect and process this personal data for the duration of the contractual relationship and during the applicable limitation period. Each Party communicates personal data to third party service providers, as subcontractors, in order to perform services on their respective instructions, including hosting, storage or IT maintenance.

In accordance with the GDPR, employees, managers, representatives or consultants of each Party have a right of access, rectification, erasure of their personal data, a right to limit processing as well as a right to object to the processing of data concerning them. They can also lodge a complaint with the competent authority.

Each Party undertakes to inform its employees, managers, representatives or consultants of these provisions.

15.2 PROCESSING RELATING TO THE EXECUTION OF THE CONTRACT
The Parties agree to comply respectively with the regulations relating to personal data and in particular with Law No. 78-17 of January 6, 1978 relating to data processing, files and freedoms and European Regulation 2016/679 relating to the protection of individuals with regard to the processing of personal data and the free movement of this data (hereinafter the “Computer and Liberties Regulations”).

The Data generated by Hardware and Third Party Materials and processed by the Application Solution are environmental data relating to the Site. They do not and must not allow the direct or indirect identification of a person. They are not considered personal data. The Client guarantees not to act in any manner whatsoever which would lead to modification of the Data regime.

 

ARTICLE 16. APPLICABLE LAW AND ATTRIBUTION OF JURISDICTION

THE APPLICABLE LAW IS FRENCH LAW. FOR ANY DISPUTE RELATING TO THE FORMATION, EXECUTION OR INTERPRETATION OF THESE GENERAL CONDITIONS OF SALE, THE PARTIES WILL SEEK, BEFORE ANY LITIGATIVE ACTION, AN AMICABLE AGREEMENT.

IN THE FAILURE OF AN AMICABLE AGREEMENT WITHIN THIRTY (30) DAYS, THE DISPUTE WILL FALL WITHIN THE EXCLUSIVE JURISDICTION OF THE COMMERCE TRIBUNAL OF GRASSE.

THIS CLAUSE ALSO APPLIES IN THE EVENT OF A REFERENCE, WARRANTY APPEAL, INCIDENTAL REQUEST OR MULTIPLE DEFENDANTS AND REGARDLESS OF THE METHOD AND TERMS OF PAYMENT.

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