Terms and conditions of purchase

Terms and conditions of purchase

LYNRED GENERAL TERMS AND CONDITIONS OF PURCHASE

 

THIS GENERAL TERMS AND CONDITIONS OF PURCHASE ARE PROPOSED WITHIN THE NEGOTIATION WITH THE SUPPLIER FOR PURPOSE OF DETERMINING THE TERMS AND CONDITIONS APPLYING TO LYNRED PURCHASES AND WHICH SHALL APPLY TO ANY ORDER TO WHICH THERE ARE REFERENCED, AS IS OR COMPLETED BY SPECIAL TERMS AND CONDITIONS IF ANY.

 

  1. PURCHASE ORDERS

 

1.1. Unless otherwise stated in a written agreement signed between the supplier or the services provider identified in the order (hereinafter the “Supplier”) and LYNRED (hereafter called the "Purchaser"), the terms and conditions herein shall apply to all purchase orders for materials, equipment or services of any kind (hereafter referred to as "Products") issued by Purchaser to the Supplier.

No other provision will apply to the orders without prior written agreement between the parties.

1.2. The purchase order is issued by mail or by electronic transmission, either as an attachment to an e-mail or on the Purchaser supplier extranet, the Supplier then receiving information by e-mail of its availability for loading on the portal. 

1.3. An order is considered as final and binding, without prejudice to sections 5.1 and 13.1 as set forth below, upon Purchaser's reception in writing, by mail or e-mail of Supplier's acknowledgment of order within five (5) working days from the date of the order’s issuance. The Purchaser can cancel its order without penalty nor compensation if (i) the order acknowledgment fails to return to him within five (5) working days after the order date (ii) he sends the request to the Supplier by mail, before the receipt of the order acknowledgment (iii) the Supplier denies or modify the application of these General Terms and Conditions of Purchase as jointly amended by the Parties unilaterally without the Purchaser’s consent. Furthermore, Any purchase order executed partially or totally without acknowledgment of order is deemed as agreed without reserve by the Supplier.

 

  1. EXECUTION OF THE ORDER

2.1 The Supplier commits to execute the order in accordance with the provisions herein, any specifications provided by the Purchaser, the good practices, as well as, any regulations and norms applying thereto. Supplier is bound by an obligation to get results.

2.2 The Supplier has to verify and ensure he owns any rights and information required for the performance of the order, before its execution, and shall bear any liability resulting from the determination of the means used for its performance and of their potential deviations from Purchaser’s expectations expressed.

2.3 The Supplier, as skilled and qualified professional in its field of activity is bound by an information and advice obligation towards the Purchaser.

2.4 The Supplier will inform the Purchaser in written of any situation of concern which could affect the performance of the order, and notably of any modifications arising in its organization or of any event that could delay the performance of the order.

2.5 Purchaser’s representatives, who may be accompanied by those of its customers and/or the statutory authorities having an interest in the order, its performance and/or its warranty, are entitled to access to the Supplier's premises where order is performed, subject to a reasonable notice, in order to check the manufacturing processes, in particular to give special instructions, to control and/or test the ordered Products, by using, if needed, Supplier's test resources and facilities. Such inspection shall not be construed as reducing Supplier's liabilities towards Purchaser.

2.6 The Supplier undertakes to raise the awareness of its employees and service providers so that they contribute to the continuous improvement of its products compliance and safety.

 

  1. PACKAGING AND DELIVERIES

 

3.1. Unless a special packaging is specifically defined between the Parties, Supplier shall supply the Products with appropriate packaging, taking into account the nature of the Products and precautions to be taken to protect the Products from humidity, bad weather, corrosion, loading accidents, transportation or storage constraints, vibrations or shocks, etc. In any case Products shall be sealed, packaged, marked and otherwise prepared for shipment (i) in accordance with good commercial practices, (ii) acceptable to common carriers for shipment at the lowest rates and (iii) adequate to insure safe arrival to destination designated by the Purchaser in the order.

3.2. Supplier shall mark all packages and containers with all necessary lifting, handling, and shipping instructions, clearly identifying and marking items that need special care or special storage and/or transportation conditions, and shall specify precautions to be taken. Supplier shall label each package and container with shipping information, purchase order numbers, Purchaser’s articles and/or Product references, lot number, serial number if any, quantity of Products, date of shipment, and name and address of consignor and consignee.

3.3. Unless particular instructions for packaging, marking or labelling have been specified by the Purchaser, the Supplier will be considered solely responsible for any damage to the Products or any extra costs due to incorrect or inadequate packaging, marking or labeling. As consequence, the Purchaser will be entitled to apply the provisions of Article 6 below.

3.4. When delivering Products as including the deliverables of services, Supplier will send to the Purchaser at the time of dispatch  a delivery note in case of hardware, or a deliverable report in case of services, both in two (2) copies, specifying (i) the date, the complete reference number of the order and the order line number concerned, (ii) the complete address of the consignor and of the consignee warehouse as the case may be, (iii) the Supplier batch identification, Product serial number if any, (iv) a detailed description of the Products, (v) a compliance Product certificate , (vi) Purchaser articles and/or Products references, (vii) number of Products in each packages and the total number of packages in the shipment, (viii) the identification gross and net weight of each package, (ix) the transportation mode, and (x) the date of shipment, and (xi) , any documents required for customs clearance purpose in case of importations.

The omission of one of the items listed above (points (i) to (xi) may be deemed by Purchaser as a non-compliance to these General Conditions of Purchase.

Certificate of compliance of the Products delivered will be sent, on electronic format to the following e-mail address: qualite@lynred.com

3.5. Unless otherwise specified in the order by defining an applicable Incoterm 2010®, carriage of Products shall be at Supplier's own risk and expense. In any case, Supplier will provide adequate and sufficient insurance coverage for the Products until their arrival of the Goods at Purchaser's premises or the destination otherwise agreed.

 

  1. TIME SCHEDULE AND DELAYS

 

4.1. Time schedule and delivery date(s) are defined by mutual agreement between the parties and specified in the purchase order. Supplier's acceptance of the purchase order means Supplier's irrevocable commitment to meet the time schedule and delivery date(s) thereby set out.

4.2. Time schedule and delivery date(s) specified in the purchase order are of the essence of the purchase order and cannot be modified without written agreement signed by both parties. 4.2.1. Early deliveries shall not be allowed unless accepted in writing by Purchaser in advance. In any case Supplier shall not be entitled to bonus or premium for anticipated delivery. 4.2.2. Supplier will inform the Purchaser promptly and without delay, the Purchaser in writing with the detailed circumstances of any events which may delay the execution of the order, without however being entitled to a delivery time extension. Supplier will make all reasonable efforts to minimize the delay in delivery and the consequences of the delay. 4.3.3. In case of delay, except due to a force majeure event, the Purchaser shall be entitled to claim late penalties as set forth below and/or to terminate the purchase order without prior notice, without prejudice to compensation of the losses and damages resulting therefrom. 4.3.4. Late penalties are of automatic damages nature and shall not discharge the Supplier from any potential damages which can be claimed as compensation of the losses and damages resulting from the delay and of the Purchaser’s right to cancel the order. They become due after five (5) calendar days, without need of formal notice, according to the following formula: P = [(V x R) / 1000], where P is the amount of the penalties,  V is the value of the late Products and R is the number of the calendar day of delay. They shall remain limited to 10 % of the concerned Products’ value. The Purchaser will notify the Supplier the amount of late penalties in written. The Supplier expressly undertakes that the Purchaser, after a period fifteen (15) calendar days from the notice above, may deduct the penalties from the price to be paid to the Supplier for the concerned order, if within this period the Supplier has neither objected in written nor already paid the penalties claimed. 

 

  1. CHANGES, SUBSTITUTIONS AND CONTINUITY

 

5.1. Purchaser may ask modifications to the order, by amendment to the purchase order (the “Modifications”) without these Modifications vitiate or invalidate the order in any way whatsoever. Supplier shall then acknowledge receipt of the amendment to the purchase order in accordance with section 1.3 above, in particular for informing the Purchaser of any changes, such as the price or the schedule that may result of the Modifications requested by Purchaser (the “Changes”). Failing by the Supplier to issue its reserves within 5 working days from the receipt of the amendment to the order including the Modifications, or in case of partial of full execution of the amendment, the latter and Modifications it includes are deemed as agreed without reserve or Changes. In case of agreement between the parties on the Changes as resulting from the Modifications, the Changes shall be jointly agreed in written by the parties and laid down an amendment to the order or a new order.

5.2. No changes or substitutions of the supply or deliveries of non-conforming Products made or proposed by Supplier shall be allowed unless previously accepted in writing by the Purchaser. Supplier shall further inform the Purchaser as soon as it detects or is made aware of any defects or non-compliance to any warranties as set forth in article 10.1 below, that affects or is susceptible to affect one of any delivered Products whatsoever, whether as purpose of a pending order or of any previous one. 

5.3. Without prejudice to a more restrictive provision set forth in the purchase order, Supplier shall, for a period of ten (10) years from the end of the warranty period of the last delivered Product (the “Continuity Period”), notify the Purchaser with a twelve (12) months prior notice, any major modifications of the Product, i.e. that prevent from warrantying the compliance of the Product to its specifications, form or function, in order to allow the Purchaser to issue a last buy order of the Product, before the end of the notice, to be delivered within six (6) months from the last order, or any other solution to enable the Purchaser at the Supplier’s costs and risks, to ensure the continuity of its supply of Products during the Continuity Period.

 

  1. ACCEPTANCE OR REJECTION OF PRODUCTS

 

6.1. The Purchaser is entitled to refuse any Products that do not comply with the order, specifications or prior indications as well as any Counterfeit Products that is knowingly delivered by the Supplier without prior consent of the Purchaser. A “Counterfeit Product” as used here-above means an unauthorized copy, imitation, substitute, reworked or modified Product or part of the latter (e.g. material, part, component) which is misrepresented as a specified genuine Product or part of an original or authorized manufacturer, including but not limited to, a false identification of marking or labelling, grade, serial number, date code or performance characteristics.

The Supplier will put in place a process to prevent risks of Counterfeit Products occurrence.

Non acceptance of Products will be promptly notified to Supplier by registered letter, fax, e-mail, delivery report or delivery bill with reserves. Failing to act for the replacement or reparation of the Products within  ten (10) working days from receipt of said notice, or without formal objection by Supplier given in written within the same period, the Purchaser reserves the right to: (i) accept the Products as is, with a price discount; (ii) accept the Products after corrective actions at the exclusive costs of the Supplier, whether these actions are performed by the Supplier itself, by the Purchaser, or any other third party designated by the Purchaser; or (iii) to refuse the Products and to held them to the Supplier disposal, their return being in any case at its exclusive costs and risks.

6.2. Non-refusal of the Products does not in any way waive or limit the warranties pursuant to Section 9 below.

6.3. Any non-compliant Product shall be deemed as not delivered. In addition to the late penalties as set forth in article 4 above, without prejudice to the Purchaser’s right to terminate the order and to claim compensation and remedies for losses and damages arising from a non-compliant delivery, a fixed compensation of one hundred and fifty (150€) euros will be claimed and due for payment by the Supplier for the administrative costs arising from the treatment of the non-compliant Products,. The Supplier expressly undertakes that the Purchaser, after a period fifteen (15) calendar days from the notice above, may deduct the penalties from the price to be paid to the Supplier for the concerned order, if within this period the Supplier has neither objected in written the grievance nor already paid the claimed penalties.

 

  1. OVERSHIPMENTS

Purchaser agrees will pay only for the ordered quantities. Over shipments will be held available to Supplier at its sole risk and expenses for a time period limited to ten (10) days from the date of delivery. If within this period of time the Supplier has neither taken the Products back nor sent instructions for shipment back at its costs, Purchaser will be entitled, either to return Products exceeding the ordered quantities to Supplier at Supplier's sole risk and expenses, or at its sole discretion, elect to purchase any, all or part of such over shipments according to the terms of the applicable purchase order and to these General Terms and Conditions of Purchase.

 

  1. TRANSFER OF TITLE AND RISKS

8.1. Unless otherwise agreed in writing by the parties, transfer of title shall be effective upon arrival of the Products at Purchaser's premises or at the destination otherwise agreed, and at the time of the services are performed when the supply consists in services. Supplier expressly waives any reservation of title or property when the Products are delivered.

8.2. The transfer of the risks occur in accordance with the INCOTERMS 2010® provisions are applicable to the order. If neither INCOTERMS provision is applicable nor other indicator is set in the purchase order, the transfer of the risks shall occur in the same time as the delivery of the Products at the place designated by the Purchaser.

 

  1. PRICING, INVOICING AND PAYMENT

 

9.1. Applicable price is defined between the parties and is mentioned in the order or results from price calculation formulas as stipulated in the order. Such price shall always be stipulated firm, and not subject to revision or escalation, or any adjustment due in particular to currency fluctuation. Unless otherwise agreed in writing, price is fully inclusive of standard packaging and of any costs, risks, profits and taxes related to or in connection with the performance of the purchase order, including the intellectual property rights granted or transferred. No extra charge of any kind will be allowed unless specifically agreed in writing by Purchaser in advance and stated in the purchase order.

9.2. Supplier shall invoice Purchaser according to the invoicing schedule set out in the order. Invoices shall include (i) purchase order number or reference, (ii) quantity and description of Products supplied, (iii) date and reference of delivery notice and (iv) detailed price, and shall be accompanied by all the necessary supporting documents. The invoice is issued to the person designed in the order. Invoices that do not comply with the above conditions will be treated as null and void and will be returned to Supplier.

9.3. Payment term shall be forty-five (45) days from the date of the invoice, unless specific and more stringent provisions of public order applying.

9.4. In case advances or prepayments are asked/granted, their payment has to be covered by a first demand guarantee or any other guarantee agreed between the Parties.

In any case, definitive payments or final installment in case of graded payment will be done only after delivery by the Supplier of all required technical documents, user guides and certificates of conformity.

 

  1. WARRANTIES

 

10.1. Unless otherwise agreed in writing by the parties, Supplier shall warrant for a period of thirty-six months (36) months from receipt without reserve, that the Products supplied (i) comply with all the specifications, schematics, drawings and data of Supplier (in any format) or provided by Purchaser and accepted by Supplier or jointly agreed by the parties in writing; (ii) comply with all the requirements written on the purchase order, rules and principles set forth in the General Terms and Conditions of Purchase as set forth herein, (iii) are new, of good workmanship and according to the state of the art, free from any hidden defects, design, material, manufacturing or operating defect, repair or modification and (iv) are of merchantable quality. It is understood and agreed that Supplier is responsible for the supply of all parts and documentation required for a complete operation of the Products, even if not expressly mentioned by Purchaser.

10.2. During the warranty period, Purchaser shall notify Supplier in writing of any defect or malfunction of Products supplied and Supplier shall without any delay and at its expense replace or repair the Products or correct the defect or malfunction, including the possible damages caused to subassemblies of the Products or other products and/or equipment incorporating the Products. Supplier shall provide another thirty-six (36) months warranty period for any replacement, starting on the day of the replacement Product delivery; or in case of repair or correction of the Product, an extension for the duration of the remaining of the warranty period equal to the unavailability period of the concerned Product.

10.3. If Supplier does not satisfactorily and within a short time, replace or repair the Products or correct the defect or malfunction, Purchaser shall have the right, at Purchaser's exclusive option, to (i) make the replacement, repair or correction himself at Supplier's sole cost and expense, or (ii) have such replacement, repair or correction made by a third party at Supplier's sole cost and expense, and/or (iii) to obtain from Supplier total reimbursement of the purchase price paid for the defective or malfunctioning Products. Notwithstanding the foregoing, the Purchaser shall be entitled to take any protective measures

10.4. Supplier agrees that the warranties specified herein shall be in addition to any warranties implied by law or expressly granted by Supplier other than specified herein and to any other warranties, whether express or implied, applicable to the relevant purchase. They shall survive any inspection, test, acceptance and payments by Purchaser, as well as any termination of orders or of agreements related to orders.

 

  1. INDUSTRIAL AND INTELLECTUAL PROPERTY

 

11.1. Without prejudice to the provisions of section 11.2 below, each party remains sole owner of its information, data, methods, processes, patterns, designs, drawings or know-how, inventions, whether issued or acquired previously or within the execution of the order, whether or not susceptible of a protection by any title to intellectual property (the “IP rights”). 11.1.1 If the Purchaser’s IP rights are required for the performance of the order, Purchaser may grant to the Supplier a personal, non-exclusive, non-transferable and limited to the execution of the order, right to use said IP right, without charge, the Supplier forbidding any copy or reproduction nor use for any other purpose than the performance of the order. 11.1.2 Supplier grants to the Purchaser, on any IP rights needed for the use or exploitation of the Products, without any other price than the payment of the price of the Products, a right non-exclusive, irrevocable, worldwide to use and exploit said IP rights. This right being transmissible to any person of Purchaser’s choice and especially to its subcontractors and/or the assignees of the Products, for the validity period of the IP rights, for design, manufacture and commercialization of its own products purposes.

11.2 The Supplier transfers, exclusively to the Purchaser, all results, items, data developed from the Purchaser’s specifications, and especially any IP rights resulting from the order’s performance or developed on behalf of the Purchaser.

As such, for the results that could be protected by author’s rights, the Supplier transfers to the Purchaser all author’s rights, including the right of representation, reproduction, translation, modification, adaptation, use and distribution, on any media, worldwide and for the duration of the author’s rights.

Supplier expressly undertakes to make no other use of these results, items and data otherwise than for the execution of the order. 

11.3. Supplier guarantees that the Products to be supplied and any part of them do not infringe any patent, license, industrial patent right, copyright, mask work right or any other industrial and/or intellectual property right of any third party. Supplier guarantees that it has full right to use, produce and sell the Products to be supplied and that Purchaser shall have full right to use and re-sell such Products.

According to this warranty, Supplier agrees to hold Purchaser harmless against any claim or action for infringement of a third party industrial or intellectual property right (a “Claim”), to pay all costs incurred by Purchaser for the defense of such claim or action, including reasonable attorney fees, and to indemnify Purchaser for any damage, loss and prejudice suffered by Purchaser as a direct or indirect consequence of such claim or action.

11.4 In the event any Claim occurs, or in the opinion of the Purchaser is likely to occur, the Supplier shall either: (i) procure for the Purchaser the right to continue to use the Products, or (ii) replace or modify the same so that it become non-infringing and provide substantially the same specifications, form an functions allowing its substitution to the concerned Product.

           

  1. PROPRIETARY INFORMATION AND CONFIDENTIALITY

 

12.1. Any data, drawing, design, equipment or other material or information to which the Supplier could access within the performance of the order, or in the course of its venue on the Purchaser’s premises, whether is (i) provided by Purchaser or (ii) provided by Supplier but paid by Purchaser as a part of the Products' purchase price, shall be solely owned by Purchaser and shall be considered Purchaser's proprietary and confidential information.

12.2. Any confidential information as further defined above will remain the property of the Purchaser and are disclosed to the Supplier solely for the needs of the performance of the order, exclusive of any other purpose. 12.2.1 Supplier undertakes (i) to not disclose the confidential information to any third parties; and (ii) to protect them against any disclosure or use non-expressly authorized by Purchaser. Supplier undertakes to disclose the confidential information only to those of its employees having a real need to know for the purpose of performance of the order and provided that they have been previously informed of their confidential nature. 12.2.2 The confidentiality and protection undertakings settled in this clause 12 will remain in full force and effect for the time of performance of the order and for five (5) years from its expiration or termination. 12.3. Any advertising or oral or written communication concerning the order or its details shall be subject to Purchaser's prior written approval.

Unless Purchaser’s prior approval, Supplier will not use, in any way and for any purpose whatsoever, including for referencing or for its customer’s information purposes, Purchaser’s name, logo, or any Purchaser’s distinctive marks or features.

 

  1. TERMINATION

 

13.1. Purchaser shall have the right to terminate the purchase order without paying any compensation or penalty to Supplier, (a) if the Supplier failed to provide the Purchaser with the information that would enable its qualification under due diligence verifications; (b) by registered letter with acknowledgment of receipt, if any of the following events occurs: (i) Supplier fails to deliver the Products (including the performance of any services) within the date scheduled in the purchase order, and the delay lasts more than one (1) week without being approved by Purchaser; (ii) Supplier fails to comply with warranty obligations; (iii) Supplier unreasonably withholds its consent to purchase order changes as per section 5 above; (iv) Supplier is in breach of any of its obligations as set forth in section 16 ; (v) Supplier is in breach of any of its obligations arising from these General Terms and Conditions of Purchase or from any other contractual document between the parties to which the purchase order is subject, and breach is not cured within ten (10) days from reception of written notice from Purchaser of the breach; (vi) a proceeding under insolvency, bankruptcy or similar laws is commenced against Supplier; or (vii) an occurrence that constitutes a circumstance of Force Majeure according to section 15 hereafter results to a delay lasting for more than three (3) months from the scheduled delivery date. In the cases specified in points (i) to (vii) above, Purchaser reserves the right to continue or ask a third party to continue, in whole or in part, the performance of the order, at Supplier’s expenses. Supplier undertakes, upon demand of the Purchaser, to provide all information and documentation required for achievement of the order.

13.2. Furthermore, subject to clause 13.2.1. below and unless otherwise agreed in writing, Purchaser reserves the right to terminate at any time the order in full or in part, by registered letter with acknowledgment of receipt without having to justify the decision. Upon reception of purchase order's termination Supplier shall immediately stop all work under that purchase order, place no further orders nor make any further commitments for materials or services to complete the work and make any reasonable effort to minimize costs and losses due to the termination. 13.2.2. In case of termination not due to a default by Supplier, Supplier shall be entitled to claim compensation, the amount of which shall be settled by mutual agreement of the parties, taking into account the time of termination, the work already carried out and the costs and expenses already sustained by Supplier under the terminated purchase order, as well as the possibility to sell the Products to other customers.

 

  1. LIABILITY AND INSURANCE

 

14.1. Without prejudice and further to the warranties and remediation obligations Supplier has adhered to herein, Supplier shall be solely responsible and liable towards Purchaser and any third party for any damages, loss or prejudice arising from performance, non-performance or improper performance by Supplier or Supplier's employees, agents or sub-contractors, of Supplier's obligations under the purchase order.

14.2. Supplier shall take out adequate insurance policies from a well-known and first rank company, to cover any liability that, subject to clause 14.1 above, might arise towards Purchaser, and hereby agrees to indemnify and hold Purchaser harmless against any such damage and liability resulting from the purchase order execution and its consequences. The Supplier shall handle to the Purchaser, on its first request, a certificate from its insurance company and of the payment of its insurance premiums; the amounts of its insurance coverage shall not be invoked as liability cap.

 

  1. FORCE MAJEURE

 

Neither party shall be responsible or liable for any delay or failure in performance arising as a result of any occurrence or contingency beyond its reasonable control, including but not limited to, accident, act of God, acts of the public enemy, earthquake, fire, flood, labor disputes, riots, civil commotion, war (declared or not), requirements or acts of any government or agency thereof. The delayed party under force majeure event will notify in written the other within five (5) days of the occurrence of said event and of its impossibility to perform its obligations as per the order, and will take all necessary actions to mitigate the effects of such delay or non-performance for the other party.

 

  1. COMPLIANCE

 

Supplier is aware of, and shall in all respects abide by, laws, decrees and regulations issued by any local or other authorities, and any rules or regulations issued by private or public organizations relating to its activity within the framework of the implementation of the purchase order. As such, Supplier declares ensuring compliance to workers’ rights and complying with any social and fiscal regulation and generally with all measures against illegal working. Supplier shall bear all the financial and/or administrative consequences incurred by Purchaser; in particular, as a result of the failure by Supplier or its employees, sub-contractors and suppliers, to comply with the provisions of the said laws, decrees, regulations or other above mentioned texts.

16.1. Export Control. 16.1.1. As a responsible and compliant company with international standards, the Purchaser neither purchase from nor liaise with companies that may infringe export control laws or regulations. By accepting and/or executing the order, the Supplier represents and warrants that it is not (i) located in any country that is subject to a trade embargo, or has been designated as a terrorist supporting country by any government; (ii) owned, controlled by, or affiliated with, the government of any such embargoed or terrorist supporting country; or (iii) listed on any list of prohibited and restricted parties, including any terrorist organization, published by the European Union, the United Nations or the United States of America. 16.1.2 The Supplier commits to comply with export control laws and regulations that are applicable to the Products (including its components), as well as to the software, information and products that the parties may exchange within the framework of the performance of an order. 16.1.3. The Supplier undertakes to inform the Purchaser by providing an ECCF (“Export Control Classification Form”) of the export control classification concerning the elements hereinabove in consideration of their purpose, i.e. unless otherwise specified by the Purchaser, the integration to infrared detector, and undertakes to notify it of any changes to – or any plans to change – this classification no later than fifteen (15) days after receiving notice of said change. 16.1.4. In the event that the export or re-export of all or part of the Products is subject to obtaining an export license, the Supplier undertakes to apply to the competent government authorities, at no cost to the Purchaser, for any license or governmental authorization necessary to enable the Purchaser to use the Products and to deliver such to customers or to any other end user specified by the Purchaser to the Supplier. The Supplier undertakes to immediately notify the Purchaser of the issuance of the export license by the competent government authorities or of the existence of a dispensation, and to provide it with a copy of said license or a certificate describing in particular any restrictions applicable to the re-export or re-transfer by the Purchaser of all or part of the Products to a third party. It is specified that notice by the Supplier to the Purchaser of the classification of all or part of the Products and the issuance of the export license described hereinabove constitute conditions prerequisite to the order coming into force. 16.1.5. The Supplier undertakes to implement all necessary security measures to prevent the transfer, by any means whatsoever, of information provided by the Purchaser and identified as being subject to applicable laws and regulations on export control to any person not authorized to access such information, by dispensation or by an export license granted by the competent government authorities. 16.1.6. Should the export license be withdrawn, not renewed or invalidated for reasons attributable to the Supplier, the Purchaser reserves the right to automatically terminate the order, without prejudice to its right to claim compensation for the damage sustained by this breach. 16.1.7. Should it fail to meet its export control obligations, the Supplier will be bound to compensate for any damage caused to the Purchaser and its customers in connection with the performance of the order or the use or operation of all or part of the Products. Furthermore, the Supplier undertakes to bear the defense of the Purchaser and/or its customers in the event of any action or legal proceedings taken by competent authorities relating to export control as well as all consequences, including fees, expenses and damages that may be incurred by them.

16.2. Safety and environment. The Supplier shall comply with the laws and regulations in force in matters of health, safety, labor and the environment, including (but not limited to): (i) regulations of European Union forbidding or restricting dangerous substances (ROHS 2002/95/EU - Restriction of Hazardous Substances and REACH 1907/2006/EU - Registration Evaluation Authorization Chemicals), as well as (ii) « Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act » from USA and the European Regulation 2017/821 of May 17 2017  for any Products containing tin, tantalum, tungsten and/or gold :  (a) forbidding use of this metals from Democratic Republic of Congo, Angola, Burundi, Centrafric Republic, Rwanda, South Sudan, Tanzania, Uganda, and Zambia; and (b) implement all necessary procedures in its supply chain for the purpose of insuring a complete traceability of liaising with its own supplier and subcontractors for tracking these minerals and metals, up to the mine where ore is extracted from, and filing these tracking data for a 5 years period; and (c) providing a copy to the Purchaser on first demand; and (iii) the French and European regulations relating to waste electrical and electronic equipment (Directive WEEE 2012/19/EU) and in any case Supplier undertakes to made available to the Purchaser, at its sole costs, a solution for collection and recycling of the Products supplied to the Purchaser once these Products are entering into the WEEE definition.

16.3. Ethics. As a responsible and compliant company with international standards, the Purchaser neither purchase from nor liaise with companies that may infringe anti-bribery and corruption laws or regulations, including OECD Convention of 1997 and the United Nations Convention against Corruption (UNCAC) of 2003, United States Foreign Corrupt Practices Act of 1977, UK Bribery Act of 2010 and French Sapin 2 Law of 2016 and their respective amendments (collectively the “ABC Regulations”). As consequence of the foregoing, by accepting and/or executing the order, the Supplier solemnly declares and warrants that (i) it has not infringed any ABC Regulations; (ii) neither it, its representatives nor its executive managers have been, to the best of its knowledge, subject to civil or criminal sanctions, in France, USA, United Kingdom or abroad, for infringement of ABC Regulations ; and (iii) no investigation or proceedings which could lead to such sanctions have been brought against it or against such person relating to ABC Regulations infringement.

The Supplier warrants that it complies with the “LYNRED Group Ethical Guidelines” handled to him or available on the Purchaser website, what is acknowledged hereto. The Supplier undertakes to make its employees and subcontractors aware of good ethical practices

The Supplier warrants that it has not granted and shall not grant, directly or indirectly, any gift, present, payment, remuneration or benefit whatsoever aiming at getting or as counterpart to any contracts executions or to get an order placed by the Purchaser.

The Supplier shall inform the Purchaser Head of Ethics by e-mail to the following address :

lynred.trade.compliance@lynred.com

of any gift, present, payment, remuneration or benefit whatsoever that it may grant, directly or indirectly grant to any employee, executive manager or representative of the Purchaser or  to any people that may influence their decision within the frame of the execution or performance of any contracts or the purchaser’s order. In the event of failure to comply with this clause, the Purchaser shall have the right to terminate the contract and the order with immediate effect and without compensation to the Supplier, without prejudice to any remedies the Purchaser may claim to the Supplier as consequence thereof.

16.4. Protection of personal data. Within the scope of the order execution each Party might have to make available to the other personal data (“Personal Data”) as defined under the French law of January 6th, 1978 “Informatique et libertés” as modified by the law of August 6th, 2004 and the European Regulation n°2016/679 of April 27th 2016 relating to the protection of natural persons with regard to the processing of personal data (hereinafter collectively the "GDPR"). The Supplier commits to comply with the GDPR and notably to: (i) provide the Purchaser the personal data relating to the concerned persons, only to the extent these Personal Data were legitimately collected and processed; (ii) ensure that its employees and/or processor are aware of GDPR and have obtained a valid consent from the concerned persons; (iii) only in so far as is strictly necessary for the performance of the order, and as strictly agreed by the Parties; (iv) restrict their transfer to third Parties offering the same guarantees than those defined herein ; (v) refrain from transferring them to third parties located, outside of the European Economic Area without having obtained the Purchaser’s prior consent; (vi) take appropriate technical (logic and physical) and organizational security measures; (vii) return and/or delete the personal data when they are not more necessary, or upon request from the other Party and the concerned people, or in any case at the end or expiry of the order performance and its consequences; (viii) include, in all its contracts with processors and suppliers the obligations as set forth above. Without prejudice to contractual liabilities, any breach of the above obligations is subject to criminal investigations in accordance with articles 226-17 and 226-22 of the French Penal Code under French law. In case of the Supplier would have to process personal data on behalf of the Purchaser, the Supplier is deemed as the processor and the Purchaser is the deemed as the controller, pursuant to Article 28 of the GDPR. As consequence of the foregoing and in accordance with Article 28.3 of the GDPR, the controller shall communicate to the processor its written instructions for carrying out the treatment. These instructions, which may be communicated through an appendix to the order and/or contract shall bind the Supplier and the latter commits to comply with. They will in particular describe the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of concerned people

 

  1. MISCELLANOUS

 

17.1. Partial Invalidity. In the event any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof which shall remain unaffected.

17.2. Waiver. Purchaser's waiver of a Supplier's breach or default under these General Terms and Conditions of Purchase shall not be a waiver of any subsequent default. Failure of Purchaser to enforce compliance with any term or condition hereof shall not constitute a waiver of such term or condition nor shall it affect Purchaser's right to enforce compliance with such term or condition later.

17.3. Sub-contracting. Supplier shall not, without Purchaser's prior written consent, sub-contract directly or indirectly at any level the performance of the purchase order or any part thereof. In case of acceptance of such subcontracting activities, the Supplier will pass to its subcontractors and suppliers all the obligations as set forth herein. In any case, Supplier shall remain liable jointly with its subcontractors towards the Purchaser and shall indemnify and hold Purchaser harmless against any and all claims of its contractors and/or suppliers.

17.4. Assignment. The purchase order shall not be assigned without the prior written consent of Purchaser, except in case of assignment to a subsidiary or affiliates of either party, or entity resulting from the merger of either party, or to a purchaser of all or substantially all of the assets of either party. However, the Purchaser prior written consent shall be required in case the assignment or transfer occurs to the benefit of a Purchaser’s competitor. For the purpose of the foregoing, any entity which design, manufacture or commercialize infrared detectors shall be deemed as a competitor.

17.5. Mastering documented data. The documented data in connection with the order must be safeguarded for a minimum period of 10 years (unless otherwise specified in the order or in the attached specifications).

The archiving of this documented information must be controlled to ensure : (i) they are available and suitable for use when access to is needed; (ii) they are properly protected.

Any deletion of documented data before the end of the archiving period is subject to the prior written agreement of the Purchaser, regardless of the retention period stipulated by the order.

 

  1. APPLICABLE LAW AND JURISDICTION

 

These General Terms and Conditions of Purchase and any orders placed by the Purchaser are governed by and construed in accordance with the laws of France, to the exclusion of its conflict of laws provisions. The 1980 Vienna Convention on the International Sale of Products shall not be applicable. Any dispute, controversy, divergence or claim arising out of or relating to these General Terms and Conditions of Purchase and any orders places by the Purchaser, including the existence, validity, interpretation, performance, breach or termination arising out of or relating to them shall be referred to and finally resolved the competent jurisdiction of Paris, France. The parties may, before any judicial action, mutually decide to choose an alternative dispute settlement procedure.

 

  1. LANGUAGE & TRANSLATION

 

The French version of the general terms and conditions of purchase herein prevails over their English translation. 

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