General sales terms and conditions

In the absence of a contract concluded between the Customer and ELLONA or any special provisions agreed in writing, any sale made by ELLONA will be subject to these terms and conditions regardless of the provisions that may appear on the Customer’s documents and in particular the general terms and conditions of purchase. Any particular clause or condition of purchase appearing on the Customer’s order form, which would be in opposition to the present terms and conditions, will be considered null and void

Quote and Price

• The products, goods or services provided by ELLONA are provided at the price prevailing at ELLONA at the time of the order.
• The prices quoted on the price offer communicated by ELLONA to the Customer are quoted in euros ex-VAT unless stated otherwise. They include the delivery of ‘Ex Works’ products from ELLONA premises, in the standard packaging.
• At the request of the Customer, the products supplied by ELLONA may be delivered to another delivery location, designated by the Customer on the Order Form. In this case, freight charges to the delivery point designated by the Customer will be added to the standard delivery price.
• Prices are firm and cannot be revised provided that the order reaches ELLONA before expiry of the validity period indicated on the price offer. If there is no specific validity period indicated, it will be 30 days from the date of the order.
• The quotations made relate only to a specific Customer. The information thus provided may not be applicable to any other Customer, the sale of the ELLONA products and the related installation represent a particular case specific to each Customer.

Delivery

The term “delivery” means the physical delivery of the goods to the Customer or his agent or the performance of the services.

The expected delivery times are given as an indication. Delays cannot in any way justify the cancellation of the order, any compensation or the application of penalties.

The delivery will be made by default “Ex Works”. At the specific request of the Customer, it may be made to an address indicated on the order form issued by the Customer.

Unless expressly stated otherwise in the order, ELLONA reserves the right to make partial deliveries with corresponding partial invoicing.

In the event of delivery to a location designated by the Customer, ELLONA ensures the delivery of its goods to destination by the means of transport of his choice, unless the Customer has expressly chosen a means of transport and a carrier in his order.

Transfer of risks and ownership

• The transfer of risk takes place when the goods are delivered to the Customer from the premises of ELLONA, or when the goods are handed over to the carrier, the goods always travel at the risk and peril of the buyer.
• The transfer of ownership of goods provided by ELLONA is made after payment by the Customer of the full price of the order.
• The Customer is required to check the apparent condition of the goods upon delivery and, in case of damage, to accurately mention its reserves on the delivery order of the last carrier. He must reiterate them to the carrier by registered letter within 5 days of delivery and inform ELLONA in writing within 8 days of delivery. In case of non-compliance with these formalities, no claim will be accepted by ELLONA. Damaged equipment should be kept for review by an expert. In case of non-compliance with all or part of this procedure, the responsibility of ELLONA will be completely released.

Set Up

Set Up of the instruments provided by ELLONA includes the installation of the equipment and the basic training necessary for its proper use.

Any additional work up to one day required to complete the installation may be performed and billed to the Customer without prior agreement. Should this additional work last more than one day, a new agreement between the Customer and the supplier must be agreed.

The set up does not include the start-up of the accessories when they are sold alone. In the event that the set-up of accessories should, at the request of the Customer, be carried out by ELLONA, it will be invoiced according to the time spent on the basis of price list in force at the time of the execution of the work.

Terms of payment

Invoices are issued on the date of delivery or after the service is rendered. Any invoice is payable to the following address: ELLONA, 3 Didier Daurat Avenue, 31000 Toulouse – France according to the following terms and conditions:

• For devices

A deposit of 30% excluding tax will be requested at the time of order, payable by check or bank transfer.

The balance will be asked by check or bank transfer upon receipt of invoice.

• For consumables, accessories and maintenance contracts

Payment by check or bank transfer within 30 days of the billing date

• For services

Payment by check or bank transfer upon receipt of invoice

• For feasibility studies

A deposit of 50% payable by check or bank transfer will be requested upon order. The balance will be requested by check or bank transfer upon receipt of the feasibility study report.

• Default interest

In accordance with art. L441-6 of the French Commercial Code, any sum not paid at the due date will bear interest at the minimum rate imposed by law, namely 1.5 times the legal interest rate, without any prior formalities or prior notice from ELLONA.

In case of default of the Customer, any order will be payable in cash, in accordance with the provisions of Law No. 94-475 of 10 June 1994.

Default of payment / retention of title

ELLONA retains ownership of the goods sold until full payment of their price, the sole remittance of a check is not considered a valid payment.

In the absence of payment by the Customer or non-compliance with the terms of payment listed above, ELLONA reserves the right to suspend the delivery and / or the execution of orders in progress or to cancel them. ELLONA may also repossess the delivered material, without prejudice of other legal proceedings that ELLONA may exercise. The deposit paid by the Customer will be retained by ELLONA as an indemnification.

Return of products

• Before any product return, the Customer must obtain the written consent of ELLONA. Unless otherwise agreed, shipping and restocking costs are borne by the Customer.
• For products under warranty, transport and repair costs are the responsibility of ELLONA if the product has been used under normal conditions.
• For out-of-warranty products, transport and repair costs are borne by the Customer.

Warranty

The devices manufactured by ELLONA are guaranteed for 12 months from the date of delivery. Some parts such as sensors, mass flow meters, are guaranteed 3 months. In the event that an intervention is required during the warranty period, this warranty provides for the free supply of defective parts and labor related to the repair.

The parts which present a manufacturing flaw are replaced under the warranty. However, this warranty does not cover sensors, mass flow meters and all consumables.

To be able to benefit from this guarantee, the Customer must inform ELLONA, without delay and in writing, of the defects or failures that it attributes to the sold product, and to provide all justifications as to the existence of these. He must give ELLONA every means to recognize and repair the defects.

This warranty cannot be applied to defects resulting from the materials supplied by the Customer, a design imposed by the Customer, faulty maintenance or servicing, improper storage conditions, deterioration or damage resulting from incorrect assembly by reference to the instructions given by ELLONA, negligence, defective supervision, abnormal use or under abnormal conditions of this property, modification of the property not foreseen or specified by ELLONA, a repair made by the Customer or by third parties to ELLONA, normal wear of the goods or fortuitous events or force majeure.

Force majeure

It is understood by force majeure, any event beyond ELLONA’s control or any event partially beyond its control and that

makes it more expensive for ELLONA to fulfill its delivery obligation. Any measure taken by a government body making it more difficult to manufacture or affecting the free movement of goods, any disturbance affecting transport or circumstances specific to ELLONA related among other things, to labor or supplies and affecting its normal operation, without limitation, will constitute a case of force majeure.

The force majeure will have the effect of suspending the performance of the sale for a period of six months running from the day after the date on which ELLONA has notified the Customer of its intention to invoke it. If the effects extend beyond six months, each of the parties will be entitled to terminate the fraction of the order whose delivery has thus been delayed.

Rights of use

The studies, plans, drawings and documents given to the Customer remain the property of ELLONA, and are confidential. The Customer may neither use them outside an agreement, nor communicate them intentionally or not to third parties, and he undertakes to take any useful measure for this purpose both vis-à-vis third parties and his own employees.

In the event of non-conclusion of an agreement, the studies and documents submitted or sent must be returned to ELLONA.

With respect to software products, any terms relating to sales, lease, or purchase shall be understood to mean “grant of rights of use”, and they do not involve any transfer of ownership. Software products are subject to a simple license of use, without right of adaptation.

Unless otherwise stipulated in an agreement, the Customer is prohibited from:

– copying or reproducing in whole or in part the products and / or related documentation by any means and in any form,

– translating or transcribing products and documentation in any other language,

– using a software product for an intended use other than in direct relation with ELLONA products.

Intellectual Property

A) If the Customer is subject to a claim that a product sold by ELLONA infringes upon an intellectual property right belonging to a third party, ELLONA shall at its own expense defend the Customer against any such claim, and pay the potential interest charged to the Customer by a final court decision. These commitments are expressly subject to the following obligations that must be fulfilled by the Customer.

1- Notify ELLONA in writing as soon as it becomes aware of the existence of such a claim.

2- Leave to ELLONA the full direction of the defense in any legal action and / or any negotiation with a view to reaching an amicable settlement of the claim and to provide him with all his assistance for these purposes.

3- Let ELLONA choose between the following options:

– obtain the right for the Customer to continue to use the product that is the subject of the claim

– without indemnity to be paid by ELLONA, replace or modify the allegedly infringing product in order to render the claim devoid of purpose,

– without indemnity to be paid by ELLONA, accept the return of the product, in consideration of a reimbursement of its price less a certain amount that will be determined in common and which will take into account the duration of use of the product by the Customer and the services it has rendered to him.

B) ELLONA shall not have any obligation to the Customer:

– in case of a claim based on the use of the product sold by ELLONA in combination and / or with one or more products not sold by ELLONA,

– if the product is used in a manner or for a purpose other than that for which it was designed by ELLONA,

– if the product is used with consumables not provided by ELLONA,

– in case of use of a product manufactured by ELLONA according to instructions, drawings, specifications or other items provided by the Customer.

Use of Data generated while using goods supplied by ELLONA

Goods or equipment provided by ELLONA to the Customer may include sensors capable of delivering data relating to environmental conditions such as in particular nuisances. These data are stored either in a memory space whose access is controlled by ELLONA and located for example in the Cloud, or in a memory space controlled by the Customer.

Whatever the case, the Customer guarantees to ELLONA unlimited and unconditional access to the data provided by the goods or equipment delivered by ELLONA and installed for the Customer. This access shall in particular be used for the purpose of compiling, analyzing, concatenating, associating third party data in order to improve the processing algorithms using this data in order to treat any nuisances detected by the equipment delivered by ELLONA.

The Customer will have access to the raw data delivered by the equipment provided by ELLONA and will be able to apply its own processing, if any. This access will be guaranteed to the Customer only to the extent that the Customer has paid to ELLONA all applicable hardware usage rights or software licenses. The Customer’s raw data will be retained by ELLONA for a period of 6 months after the end of the validity period of the applicable rights of use or license.

The processing algorithms of ELLONA are the sole property of ELLONA and are not subject to any rights of use or any license rights whatsoever in favor of the Customer.

Qualification of data in relation to GDPR

As part of the service offered to Customers, ELLONA may directly collect and process Customer data for the purpose of managing and providing the service. The data collected using the sensors and materials provided by ELLONA do not allow any identification of persons by ELLONA, and therefore cannot be qualified as personal data under the terms of the General Data Protection Regulation (GDPR). . In the event that the Customer provides data to ELLONA, the Customer warrants that the data delivered by him to ELLONA is anonymous and is managed in a manner consistent with the GDPR.

Termination clause

Once formed, the sale may be revoked at the request of the Customer only if ELLONA expressly consents to it in writing. In the event that the Customer does not fulfill, in whole or in part, any of its obligations, ELLONA may at any time, by registered letter with acknowledgment of receipt, declare the sale resolved in whole or in part. Once exercised, without prejudice to damages and interest if applicable, the right of resolution will come into effect upon receipt by the addressee of said letter.

Applicable law

These general terms and conditions of sale and their subsequent additions if any, are subject to French law. Any dispute that may arise in connection with these general conditions or with their subsequent additions, shall be submitted to the Commercial Court of Toulouse, or the TGI of Paris for any dispute involving Intellectual Property rights.