Article 1 – Approval of the General Terms and Conditions of Sale

The present General Terms and Conditions of Sale (hereinafter “GTCS”), together with the Particular Conditions applicable to any order, set out the conditions by which PHOTONICS BRETAGNE sells its goods and related services to the customer. The specific conditions, as set out in documents issued by PHOTONICS BRETAGNE (quotations, order acknowledgments, invoices), shall prevail in the event of any amendment or addition to any provision of the GTCS. Unless all parties agree otherwise, any terms and conditions included in the general purchasing conditions, order forms or any other documents coming from the customer are not applicable to the sale of PHOTONICS BRETAGNE goods and related services. Acceptance of an order by PHOTONICS BRETAGNE shall not be interpreted as acceptance of the customer’s general terms and conditions of purchase.

Article 2 – Intellectual property rights

2.1. The customer shall take all necessary measures in order to ensure that any person or entity under its authority (including the customer’s staff, partners, joint contractors, subcontractors, etc) will protect the intellectual property rights (patents, drawings, designs, etc) belonging to PHOTONICS BRETAGNE or to any person or entity involved in the design or manufacturing of the sold goods;

2.2. All studies, schemes, drawings and any other documents provided or sent by PHOTONICS BRETAGNE shall remain the property of PHOTONICS BRETAGNE and they may not be disclosed to any third party by the customer for any reason whatsoever without the prior written consent of an authorized representative of PHOTONICS BRETAGNE.

2.3 PHOTONICS BRETAGNE retains full freedom to use, reproduce, and market, on its own behalf or on behalf of third parties, products and studies (drawings, prototypes, plans, etc.) identical to those provided to the Customer, provided that these items do not constitute confidential information belonging to the said Customer. Any exclusivity or transfer of intellectual property rights must be the subject of a written agreement between PHOTONICS BRETAGNE and the Customer.

Article 3 – Contract of Sale

3.1. Only orders confirmed in writing by PHOTONICS BRETAGNE will be deemed definitely agreed. The confirmation will be formalized on the issue of an order acknowledgment (see also article 5 below for the case of conditional acceptance when an export or import license is needed).

3.2. Whenever a quotation is provided by PHOTONICS BRETAGNE, the commitment of PHOTONICS BRETAGNE to honour that offer, as well as any Particular Conditions that would modify or supplement the GTCS, may only be deemed valid once the order has been placed by the customer and confirmed in writing by PHOTONICS BRETAGNE, as set forth in article 3.1 above.

3.3. In case of contradiction between quotation, order and order acknowledgement, the later alone shall prevail.

3.4. Unless otherwise stated, the terms set out in any quotation issued by PHOTONICS BRETAGNE shall be valid for a period of ninety (90) calendar days from the date of the quotation.

3.5. In case a customer wishes to cancel any order after the unconditional acceptance of PHOTONICS BRETAGNE, the customer shall be liable to pay to PHOTONICS BRETAGNE, by rights, an order cancellation compensation of 30% of the order value. Moreover, for any order or item of an order corresponding to non-recurrent engineering activities and/or to goods with lead times of ten (10) weeks or more, the said compensation will be increased by 70%, to a total of 100% of the order value, if the cancellation is received at PHOTONICS BRETAGNE’s premises within eight (8) weeks of the last planned delivery date.

PHOTONICS BRETAGNE shall have the right to charge the compensation, in whole or in part, against any advance payment received. The balance of the compensation shall be paid by the customer upon its order cancellation. Any delay in payment shall trigger application of the interest payments as per article 9.3 below, starting on the cancellation receipt date. The compensation does not allow the customer to claim any right, in whole or in part, on any originally ordered goods.

Article 4 – Delivery and transportation of the goods sold

4.1. Conditions

Unless otherwise specified, the goods shall be deemed delivered to the customer at the PHOTONICS BRETAGNE premises (EXW conditions, Incoterms 2010 ICC). The customer shall retrieve the goods within fifteen (15) calendar days of the notification of availability. Upon expiration of this time period, the customer will be subject to penalties calculated according to article 9.3 below, without affecting PHOTONICS BRETAGNE’s rights to cancel the contract following the customer’s default, to cancel unilaterally any order currently being processed and to claim order cancellation compensation computed as per article 3.5 above (applying the 100% order value case as relevant).

4.2. Delivery time

Deliveries shall be made according to the availability of goods. The planned lead times shall be stated in PHOTONICS BRETAGNE’s order acknowledgment and shall always be conditional to the dispositions of article 5 below and shall always be construed, unless otherwise stated, as when the goods sold will become available as stated in article 4.1 above. Upon PHOTONICS BRETAGNE’s sole discretion, the planned lead times shall be determined based on the full payment of any agreed advance payment. Delays with respect to the planned lead times shall not give rise to any damages indemnification, counter charge, price reduction or cancellation of orders whether confirmed or in process. Whenever possible, PHOTONICS BRETAGNE will inform the customer as soon as it will appear that the last communicated planned delivery date will not be fulfilled and will provide a new planned delivery date simultaneously. PHOTONICS BRETAGNE may make partial or total deliveries.

4.3. Transportation costs and risks

Unless otherwise agreed, the customer shall bear all costs and risks associated with the transportation of the goods sold, and any other related expenses incurred, if any (EXW conditions, PHOTONICS BRETAGNE plant, Incoterms 2010 ICC).

4.4. Different particular conditions

Whenever the Particular Conditions stipulate delivery and transport conditions different from the ones exposed here above, they would be defined according to Incoterms 2010 ICC. Any planned lead time or delivery date shall be construed as per the obligations of delivery and transport under the responsibility of PHOTONICS BRETAGNE with regard to the contractual Incoterms, but will always be conditional to the content of article 5 below. In case of contradiction between the Incoterms stipulated in the order acknowledgment and the one stipulated in any invoice issued by PHOTONICS BRETAGNE for this order, the later only shall prevail.

Article 5 – Export and import licenses for the goods sold

Whenever an export, import or transfer license is required for the goods that are ordered, PHOTONICS BRETAGNE is committed to deliver the said goods and bound to any Particular Conditions for the order only once all the licenses required have been received. To that extent, PHOTONICS BRETAGNE reserves the right to issue a first order acknowledgment conditional to the reception of the said licenses. In this case, a second non-conditional order acknowledgment shall be issued once the said licenses have been received, confirming the planned delivery date. In case of export control from France, the customer is bound to conform to any obligations stated by the French authorities and to any declarations on his behalf, particularly as related to the final utilization of the sold goods or to the commitment to non re-exportation without prior authorization. The denial of any license by the competent authorities will automatically result in the cancellation of the concerned order, in whole or in part, without PHOTONICS BRETAGNE being considered liable in any manner whatsoever for any claim for damages or compensation.

Article 6 – Authorization to re-sell the goods sold

The customer is deemed to use the goods sold in the customer’s normal course of business. Up until full discharge of the sold goods from the property reserve in accordance with article 10 below, the customer shall not re-sell the goods delivered, nor pledge the goods delivered or use them as security, or transfer the title thereto, even as a guarantee. Notwithstanding the above mentioned points, the buyer shall not re-sell the sold goods in case its obligations through article 5 above shall be contradicted.

Article 7 – Authorization to transform the goods sold

The customer is not authorized, in the customer’s normal course of business, to repair, transform or modify in any way the goods sold.

Article 8 – Services related to the goods sold

8.1. Acceptance

Except in case of expressly stipulated and justified reserve by the customer following the performance of any service and confirmed in writing to PHOTONICS BRETAGNE within three (3) working days, the said service performance shall be deemed accepted without reserve by the customer.

8.2. Rules and regulations

PHOTONICS BRETAGNE and the customer shall commit that all the applicable rules and regulations shall be satisfied in the locations under their responsibility where the services are to be performed, in particular as related to personnel’s health, safety, working conditions and protection of information. The concerned personnel from PHOTONICS BRETAGNE and the customer, including any contractors, sub-contractors and consultants, shall be adequately informed of any relevant dispositions in force in any location where the services are to be performed and shall enforce the said dispositions, PHOTONICS BRETAGNE and the customer remaining responsible for their own personnel.

8.3. Insurances

PHOTONICS BRETAGNE and the customer shall commit that all the insurances necessary to cover their liability in case of damage, accident, injury or death occurring in any location under their responsibility where the services are to be performed or necessary to cover their travelling personnel shall be properly subscribed, under conditions and with insurance companies allowing the guarantee of an adequate level of coverage.

Article 9 – Price of the goods sold and related services

9.1. Pricing

All prices are stated before any tax and duty and are based on PHOTONICS BRETAGNE tariffs in euros, as communicated to the customer. The goods and any related services are charged based on these prices and in line with the quantities and any related services mentioned in the order acknowledgment. Any taxes, charges or duties payable under French or any foreign law (import or transit country, etc) shall be borne by the customer. Unless otherwise stated, the packaging, transportation, insurance and other costs shall always be borne by the customer.

9.2. Terms of payment

Unless otherwise stated, the price shall be paid by the customer:

• On the basis of an advance payment invoice issued by PHOTONICS BRETAGNE along with the order acknowledgment, immediately due at reception;
• On the basis of the invoice(s) issued by PHOTONICS BRETAGNE after delivery of goods or performance of services, payable by bank transfer on the due date as stated on the invoice(s) (or thirty (30) days net from invoice date if no due date mentioned on invoice(s)) and using the bank details provided by PHOTONICS BRETAGNE.

9.3. Sanctions and penalties applicable in case of non-payment or late payment

Any late payment or non-payment on any agreed due date shall imply by rights, the day after the stipulated payment term, the application of late payment penalties, without prior notice, calculated on all payable sums, using the refinancing rate of the European Central Bank increased by ten (10) percentage points, and applying a lump sum compensation for payment recovery costs, amounting to forty (40) euros per invoice (in accordance with article L.441-6 of the French Code of Commerce and with Directive 2011/7/EU of 16th February 2011). When the payment recovery costs supported effectively are greater than the lump sum compensation, PHOTONICS BRETAGNE may also claim, by rights and as justified, an indemnity for the extra costs. In case of late or non-payment on the due date, including for any agreed instalment, PHOTONICS BRETAGNE has the right to suspend execution of the sale by rights without prior notice and without altering any other right or action in resolution and/or damages. In case of non-payment when due, the sale can also be terminated by rights upon PHOTONICS BRETAGNE’s decision without prior formal demand, and PHOTONICS BRETAGNE may also ask as an emergency procedure that the goods be returned, without prejudice to any other claims for damages. PHOTONICS BRETAGNE may also decide to cancel by rights and without prior notice confirmed orders in process and any prior orders, whether already delivered or in the delivery process, and for which payment is due.

Article 10 – Retention of title to the goods sold

PHOTONICS BRETAGNE shall keep full title to the goods sold until the price has been fully paid, including the principal, and any applicable interests, penalties and indemnities. Any failure to pay any amounts payable on due date shall entitle PHOTONICS BRETAGNE to claim for the goods. In case of a seizure, or in case of a third party procedure, before full payment of the due amounts, the customer shall notify PHOTONICS BRETAGNE immediately and shall inform the said third party of the retention of title by PHOTONICS BRETAGNE. The above provisions shall not make obstacle to the transfer to the customer, upon delivery, of the risks of loss and damage to the goods sold, and the risks of damage that the goods may cause.

Article 11 – Return of the goods sold

Without prejudice for any claims against the forwarder or carrier, all claims against visible defects on or non-conformity of the goods delivered must be notified in writing not later than thirty (30) calendar days after delivery. The customer shall provide PHOTONICS BRETAGNE with all evidence in proof of the defects detected. The customer shall fully allow PHOTONICS BRETAGNE to remedy such defects and shall refrain from intervening on its own or having any third party intervene. Any return of goods shall be agreed upon by written consent from PHOTONICS BRETAGNE, and all costs and risks associated with the return of the goods shall be borne by the customer. Should any apparent defect or non-conformity be observed on the goods delivered and duly ascertained by PHOTONICS BRETAGNE, the customer may request to have the goods replaced at no extra cost, or reimbursed, as well as the reimbursement of the return costs, without any other indemnification. In the absence of any adverse notification by the end of the above mentioned thirty (30) days period, the customer is considered as having accepted the goods delivered with no reserve.

Article 12 – PHOTONICS BRETAGNE’s contractual warranty

12.1. Terms of the contractual warranty

The goods sold are guaranteed against any such operating defects as may result from defective material, workmanship, design or assembly, as set out below. The operating defect must be detected during the period of twelve (12) months following delivery, and during normal use and for the intended purpose of the goods. The contractual warranty is definitely void whenever a good sold is opened by the customer or any third party without preliminary written consent from PHOTONICS BRETAGNE. Warranty is also excluded in the following cases:

• The component utilized, or the defective design of the goods is attributable to specific requirements of the customer without endorsement by PHOTONICS BRETAGNE;
• The operating defect is caused by an intervention on the product or as a result of a modification that was performed without PHOTONICS BRETAGNE’s prior consent;
• The operating defect was caused by abnormal use and/or use without complying with the intended function of the goods;
• The failure was caused by normal deterioration (wear and tear) of the product, or by negligence or by improper care on the part of the customer;
• The failure was caused by force majeure or an act of God.

12.2. Enforcement of the contractual warranty

As soon as the customer is aware of any operating defect, the customer shall contact, by any means, PHOTONICS BRETAGNE to initiate a warranty claim. As part of the warranty, PHOTONICS BRETAGNE shall decide whether to repair or replace the goods and/or any parts recognized as defective by his own technical department, at no extra costs. The replacement of parts shall not cause the warranty period mentioned in article 12.1 above to be extended.

12.3. Transportation costs and risks

Any return of goods under warranty shall be previously agreed upon in writing by PHOTONICS BRETAGNE, all costs and risks to return the goods to the location stipulated by PHOTONICS BRETAGNE being borne by the customer. All costs and risks for the return of the goods to the customer, to the location stipulated by the customer, shall be borne by PHOTONICS BRETAGNE.

12.4. Limitation of the contractual warranty

It is expressly agreed upon between the parties that PHOTONICS BRETAGNE’s liability in case of an operating defect on the goods shall be limited to the above provisions, and in case of damage, to the right of payment of an indemnity in an amount not greater than the selling price of the concerned goods.

Article 13 – Automatic cancellation

Should the customer fail to fulfil one of his obligations, the order may be cancelled by rights, at PHOTONICS BRETAGNE’s request, without prejudice to any damages indemnification that may be claimed against the customer in default. Notwithstanding provisions of articles 3.5 and 9.3 above, cancellation shall take effect automatically fifteen (15) days after a formal notice has been sent by PHOTONICS BRETAGNE to the customer.

Article 14 – Cancellation of a clause

Should any disposition of these GTCS be or become cancelled or made void, such cancellation or void shall not modify the other provisions herein or the validity of the GTCS as a whole.

Article 15 – Archiving of documents

All reports, studies, drawings and other contractual documents relating to the service will be archived under the responsibility of PHOTONICS BRETAGNE for ten (10) years from the date of the invoice.

Article 16 – Settlement of disputes

The sales contract and the present GTCS are written according to French law, excluding, when appropriate, the 11th April 1980 United Nations convention on international sales of goods. Any dispute arising in connection with a sale that cannot be settled by amicable agreement within one month from notification of the difference by the more punctual party, shall be finally settled by the commercial court having sole jurisdiction in PHOTONICS BRETAGNE’s registered office.