1. Definitions
The titles of the articles (“Articles”) are inserted for convenience of reference only and shall not affect the interpretation of these Conditions. Unless otherwise defined, capitalised terms, singular or plural, used in these Conditions shall have the meaning set out below: “Acknowledgement Form” means the form of acknowledgement document issued with the Order.
“Stormshield Information” means Stormshield intellectual property rights, methods, know-how, proprietary and/or privileged technology and processes, internal facts and figures, and any related material and document.
“Conditions” means this document.
“Due Delivery Date” means the due date of delivery of the Item to the place of delivery as specified in the Order.
“Excusable Delay” means an event which is at one and the same time compelling, unpredictable, unavoidable, outside of the control and not occasioned by a Party's fault or negligence.
“Item” means any goods, material, work or service identified in the Order and as specified in the Specification forming part of the Order.
“Operator” means any company, individual, government or entity having lawful ownership or lawful usage of the Item.
“Order” means the Specific Conditions, these Conditions and any attachments, which are incorporated by reference, and any amendments to the foregoing documents.
“Parties” means the Purchaser and the Supplier and “Party” shall be construed accordingly.
“Personal Data” means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Public Official” means an elected or appointed official, employee or agent of any national, regional or local government/state or department, agency or instrumentality of any such government/state or any enterprise in which such a government/state owns, directly or indirectly, a majority or controlling interest; an official of a political party; a candidate for public office; any official, employee or agent of any public international organisation; and any spouse or close family member related thereto.
“Purchaser” means the relevant individual Stormshield, which places the Order and is identified on the front of the Order.
“Specification” means the requirements defining the Item, if any, issued by the Purchaser and incorporated in the Order.
“Specific Conditions” means the conditions negotiated and agreed between the Purchaser and the Supplier incorporated into and appearing on the front of the Order including any Specification.
“Supplier” means the company, person or entity upon whom the Order is placed and which is identified on the front of the Order. The Supplier will be provided, upon request, with any document related to the Order and referred to herein.
2. Purpose and Scope
The Parties agree that the Order constitutes the terms and conditions applicable to purchase of the Item by the Purchaser.
3. Order and Order Acceptance
3.1 Within fourteen (14) calendar days of a submitted Order, the Supplier undertakes to notify the Purchaser of acceptance or refusal of the said Order by mail or email.
3.2 The Order shall be deemed to be accepted without reservation by the Supplier after fourteen (14) calendar days, unless the Supplier notifies the Purchaser in writing of its refusal to accept the Order. If the Supplier starts work based on the Order without returning the Acknowledgement Form, the Supplier shall be deemed to have accepted the Order without reservation. If the Supplier expressly refuses the Order, it shall be deemed withdrawn and the Parties may negotiate new terms and conditions. The Purchaser may withdraw from any negotiations at any time prior to acceptance of an Order by the Supplier and shall incur no liability whatsoever.
4. Precedence
In the event of any conflict between the following documents forming part of the Order, the following order of precedence shall apply: (i) the Specific Conditions without the Specification; (ii) the Conditions; (iii) the Specification; and (iv) any other documents.
However, if the Order is related to a separate signed contract between the Purchaser and the Supplier, then the terms and conditions of such contract shall prevail over the Conditions.
5. Delivery and Acceptance
5.1 Import free of Customs Duties. If the Supplier is based within the European Union, it shall confirm in writing to the Purchaser that material/components purchased from outside the European Union have been imported free of duty and Value Added Tax under inward processing relief (or other customs regimes with the same effect) and that it is supplying the Item free of duty and indemnifies the Purchaser from and against any consequences of its non-compliance with this Article 6 “Delivery and Acceptance”.
5.2 Delivery of the Item – Title and Risk
5.2.1 Delivery shall be made in accordance with the requirements set out in the Order, in particular with the requirements of the Specific Conditions and the Specification, and time shall be of the essence in relation to the delivery dates set out in the Order. No delivery of an Item shall take place without prior qualification of the Supplier and the Item by the Purchaser, unless specifically authorised in writing in advance by the Purchaser.
5.2.2 Title to and risk in the Item shall transfer to the Purchaser upon delivery to the delivery address specified on the Order. In the case of a notification of rejection of the Item being given to the Supplier by the Purchaser due to the non-compliance by the Supplier with the terms of the Order, title and risk to such Item shall automatically revert to the Supplier.
5.3 Acceptance of the Item
5.3.1 The transfer of title and risk does not constitute acceptance of the Item by the Purchaser. Where acceptance tests are defined in the Order, acceptance of any Item delivered shall be subject to completion of the acceptance tests to the reasonable satisfaction of the Purchaser. Where no acceptance tests are defined in the Order, the Purchaser shall have the right to inspect the Item after delivery and acceptance shall take place if the Item is satisfactory to the Purchaser on inspection or, if no inspection is made, the Item shall be accepted thirty (30) days after delivery or when it is taken into use by the Purchaser, whichever occurs first. Acceptance of any Item shall not be conclusive of the absence of latent defect and shall be without prejudice to the rights of the Purchaser under the Order or at law.
5.3.2 If the Item is not delivered in accordance with the Order, the Purchaser shall inform the Supplier in writing. Then the Purchaser may at its sole discretion, exercise the following rights:
a) reject the delivered Item in whole or in part and require the Supplier to refund any payment(s) made by the Purchaser to the Supplier;
b) set off the amount of any such payment(s) from any other amounts due to the Supplier from the Purchaser; or
c) give notice to the Supplier to promptly replace or repair the delivered Item at the Supplier's expense and risk.
In addition, the Purchaser may require the Supplier to pay all the Purchaser's expenses, damages, losses incurred and additional costs arising from the failure to deliver the Item in accordance with the Order.
6. General Supplier Undertakings
6.1 Compliance
6.1.1 The Supplier shall ensure its compliance and the compliance of all Items with all applicable laws and/or regulations as amended from time to time, including, but not limited to those in connection with:
(a) environment, health, security, safety, packaging and labelling;
(b) the control, restriction, prohibition, recovery and/or elimination of inter alia, chemicals and/or hazardous substances and in each case, provide such information as the Purchaser may require in connection therewith;
(c) transport; and
(d) labour, employment. In accordance with French labour law, for an ordering value exceeding five thousand Euros (5,000 EUR) and for which work is performed in whole or in part in France, the Supplier commits to provide the Purchaser or its agent every six (6) months with the following documents: (i) a certificate of incorporation (Kbis or any other equivalent evidence of registration); (ii) a vigilance clearance certificate of its declaration and payments to social protection agencies; (iii) a certification of tax payment; (iv) a list of its non-EU employees with name, date of hire, nationality and work permit number as per article L. 5221-2 of the French labour code; and v) in case of posting of employees to France, the Supplier commits to provide the Purchaser or its agent before the start of the posting: a declaration clearance that the Supplier has paid, where applicable, the sums due in respect of the fines (provided for in articles L. 1263-6, L. 1264-1, L. 1264-2 and L. 8115-1 of the French labour code), and a copy of the completed online declaration at the French Government’s website (SIPSI Teleservice) for any direct or indirect supplier/subcontractor/temporary agencies' employees posted for the performance of the Order.
The Supplier shall report immediately to the Purchaser any violation of applicable laws and regulations with respect to the execution and/or the performance of the Order by itself or its affiliates, subsidiaries, executives, employees, agents or any individuals or companies that may be involved in performing the Order.
Should the Supplier fail to comply with such laws and/or regulations, the Supplier shall indemnify and hold harmless the Purchaser from and against all consequences of such failure.
6.1.2 Anti-corruption
The Supplier, its executives, employees, agents and any individuals or companies that may be involved in the execution and/or the performance of the Order shall comply with all governmental statutes, laws, rules and regulations, including but not limited to all local and international anti- corruption laws applicable to the performance of its obligations and activities under this Order.
Accordingly, in the performance of the Order, the Supplier shall refrain from:
a) offering, promising, arranging for or paying, either directly or indirectly, anything of value (including but not limited to monies, gifts and entertainment and special favours) to any individuals, including Public Officials, for the purpose of improperly inducing that individual to perform or fail to perform his/her official duties, or to assist the Supplier or Purchaser in obtaining business, retaining business or securing any improper advantage;
b) offering or paying unofficial payments to Public Officials to speed up or obtain routine governmental actions (including but not limited to obtaining permits, licences, or other official documents; processing governmental papers, such as visas and work orders; providing police protection, mail pick-up and delivery, or scheduling inspections associated with contract performance or transit of goods across country);
c) seeking, accepting, or paying for any confidential, non-public information regarding competitors, tenders and technical specifications, bids and bid prices.
The Supplier shall ensure that the foregoing provisions are included in all contracts to be entered into with its subcontractors according to Article 7.5 “Subcontracting” of the Order.
The Supplier shall give notice immediately to the Purchaser of any investigation or legal proceeding initiated against the Supplier by any public authority relating to an alleged violation of applicable laws and regulations with respect to the execution and/or the performance of the Order by itself or its affiliates, subsidiaries, executives, employees, agents or any individuals or companies that may be involved in the performance of the Order.
6.1.3 Personal Data Protection
The Parties confirm and agree that any Personal Data exchanged in connection with the Order and for the purpose of the performance of the Order has been collected and will be exchanged in compliance with the applicable Personal Data protection laws and regulations, as independent data Controllers (“Controller” meaning the organisation determining the purposes and the means of the processing of Personal Data).
The Parties mutually agree to insert any additional contractual measures that may be required by the applicable Personal Data protection laws and regulations to ensure such compliance during the term of the Order.
6.1.4 Responsibility and Sustainability
Without prejudice to Article 7.1 “Compliance with Applicable Law”, Article 14 “Intellectual Property Rights”, Article 15 “Confidentiality and Publicity” and those related to information security, import and export, the Airbus Supplier Code of Conduct, which has been accepted by the Supplier through the signature of the commitment letter included in the Airbus Supplier Code of Conduct, hereby applies to the Order.
The Supplier shall comply with the sustainability requirements as set out in the Specific Conditions, if any.
6.1.5 Security
6.1.5.1 The Supplier shall protect Stormshield Information, data and/or assets made available to the Supplier in the context of this Order from loss, destruction, falsification, corruption, unauthorised access and unauthorised release.
6.1.5.2 For this purpose and in accordance with relevant security laws and regulations, the Supplier undertakes to:
a) implement and maintain appropriate security policies, standards, procedures and processes according to a recognised qualification or certification (such as ISO or National Institute of Standards and Technology (NIST));
b) implement and maintain “state of the art” security measures and tools to protect its information systems;
c) isolate Stormshield Information from its own and other customers’ information;
d) grant its personnel access to Stormshield Information and systems on the basis of “least privilege” and “need to know” principles; and
e) ensure proper training of its own staff and make sure that the same level of security is cascaded to its own subcontractors and suppliers.
6.1.5.3 The Supplier shall ensure that the access to the Purchaser’s system or the access to the systems on which Stormshield Information is accessed and/or processed, are controlled by appropriate methods and controls.
6.1.5.4 The Supplier shall use all care and means available, including any “state of the art” technology (e.g. hardening guidelines, malwares protection and/or intrusion detection), to prevent intrusion of malicious codes on all its systems, equipment, storage media and infrastructure (e.g. servers and/or email gateways).
6.1.5.5 The Supplier shall implement a comprehensive and approved security incident management process that includes detection and reaction on cases such as lost or stolen equipment, mistakes by users/personnel, access violations, malware/ransomware, hacking and email phishing. The Supplier shall investigate and report to the Purchaser any observed or suspected security weakness or any incident that may potentially affect the Purchaser’s systems and/or Stormshield Information in regards to the Order. The Supplier shall collaborate with the Purchaser’s security department by providing necessary information in case of investigation related to a security incident.
6.1.5.6 On request, the Supplier shall nominate to the Purchaser a point of contact in its organisation (including back-up), that is responsible for routine collaboration and incident reporting.
6.1.5.7 The Supplier shall comply with additional security requirements as set out in the Specific Conditions, if any.
6.1.6 If the Supplier does not comply with its obligations under Article 7.1 "Compliance", Stormshield then reserves the right to terminate the Order pursuant to Article 13.1 “Termination for Supplier’s Default”.
6.2 Quality
6.2.1. Non-Conforming Items
6.2.1.1 The Supplier is responsible for the quality of its supplies and shall ensure the conformity of the delivered Items with the Specification, in particular by means of pre-delivery inspections and final tests. The Supplier shall perform a root-cause analysis and take any necessary corrective action to remedy the causes of non-conforming Items, in order to prevent any recurrence and implement a suitable preventative action plan. The Supplier shall confirm implementation of the action plan to the Purchaser’s satisfaction.
6.2.2. Quality Records
The Supplier shall inspect all incoming materials to ensure conformance with all applicable specification requirements and drawings of Items pertaining to the Order and shall document all inspection requirements and acceptance criteria to ensure they are in line with the specific requirements communicated to it by the Purchaser for the Items. The Supplier shall ensure complete identification and traceability of all related products to the raw material used and applicable documentation. All records must be stored in a controlled environment/suitable manner and according to applicable legal rules, so that they remain identifiable, legible, reproducible and available to the Purchaser.
6.3 Personnel. The Supplier shall be responsible for ensuring that its personnel are fully trained, skilled, qualified and capable of fulfilling all of the requirements contained in the Order.
6.4 Subcontracting. No substantial part of the work on the Order may be subcontracted by the Supplier without the prior written consent of the Purchaser. The Supplier shall remain fully responsible for the Item and shall ensure that its subcontractors comply with all provisions of the Order relevant to any subcontracted work.
6.5 Property Issued by the Purchaser. The Supplier shall not acquire any legal or beneficial interest in any property supplied to it by the Purchaser for performance of work on the Order. Any such property possessed or controlled by the Supplier shall be held at the Supplier’s risk, stored and booked separately from other property, maintained at the Supplier’s expense, clearly marked as the Purchaser’s property and only used by the Supplier for the performance of the Order. At the request of the Purchaser or on completion of the Order, such property shall, unless incorporated into the Item(s), be returned promptly to the Purchaser. On reasonable written notice being given to the Supplier, the Purchaser shall have the right to enter the Supplier’s premises to recover any such property.
7. Export Control
7.1 The Parties shall comply without diversion with the United States of America, the European Union and any applicable national export control, sanctions and embargoes laws and regulations (the “Export Regulations”).
7.2 The Purchaser shall have the ability to use and to deliver the Item and the Purchaser’s customers to use, operate and/or maintain such Item as specified by the Purchaser.
7.3 Prior to the Order signature date, the Supplier shall identify the Export Regulations applicable to the Item (the “Export Control Classification”) and subsequently notify, during the Order duration, in writing giving the export control classification number.
7.4 Whenever all or part of the Item is subject to Export Regulations, the Supplier shall:
a) apply for and obtain on time from the relevant export authorities, any relevant licences or authorisations for the export, re-export, transfer, retransfer, delivery and use of the Item as specified by the Purchaser (the “Export Authorisation”) and, when necessary, implement any update on time, to ensure that the Item is delivered as required by the Purchaser under this Order, and at no cost to the Purchaser. The Supplier shall not be held liable if an Export Authorisation is not obtained due to an Excusable Delay as set out in Article 9.1 “Excusable Delay;
b) request the Purchaser to complete an end user statement as required by the relevant authority or as provided by the Purchaser;
c) provide the Purchaser, upon request, with any information, declarations and certifications required by the applicable Export Regulations, including those related to employees and subcontractors, if any to comply with the Purchaser’s accreditation process for Export Regulations access control compliance to authorise access to any export controlled information, when required;
d) prior to submission to the competent export control authority and upon request, provide the Purchaser with the Export Authorisation application and any amendments;
e) as soon as possible and before the Item first delivery, provide the Purchaser with a copy of any obtained Export Authorisation, including all applicable provisos/conditions, and/or any correspondence issued by any export control authority that relate to the execution of the Order and/or to the obligations of the Purchaser;
f) provide for each delivery of tangible and/or intangible Item, the applicable: Export Regulations, the Export Control Classification, and when applicable, the Export Authorisation number, referenced in the shipping documents for the tangible, and directly in any documents/files for the intangible. If there is no marking, the Purchaser will consider the Item not export control classified;
g) not give access to intangible and/or tangible export controlled Item to its subcontractor when provided by the Purchaser without the Purchaser’s prior written authorisation;
h) be responsible for all applicable regulatory record keeping requirements;
i) in the case of military purchase, seek the Purchaser’s review and approval of the provisions of the U.S. Technical Assistance Agreements (“TAA”) or Manufacturing License Agreement (“MLA”) prior to being submitted to the U.S. export authorities, should one (1) or more TAA or MLA be required for the fulfilment of the Order. The Supplier shall also provide the Purchaser with a copy of the fully executed TAA or MLA and of the issued approval that includes all provisos that relate to the execution of the Order or the compliance obligations of the Parties. The Supplier shall provide to the Purchaser any specific non-disclosure agreement required by the Export Regulations through the TAA or MLA; and
j) in the case of military purchase, declare any political contribution, commission and fees payments as referred under Part 130 of the U.S. International Traffic in Arms Regulations ("ITAR").
7.5 In the event of Supplier's failure to comply with its obligations under this Article 8 “Export Control”, the Supplier shall, within a timeframe defined by the Purchaser and according to the defined technical specifications, replace or modify the relevant impacted Item in compliance with the applicable Export Regulations.
7.6 The Supplier represents that, at the date of signature of the Order, the Supplier is not subject to any sanctions lists or located in a comprehensive embargoed country according to Export Regulations.
7.7 In the event that (i) the Supplier becomes, directly or indirectly, subject to any sanctions or embargo lists according to Export Regulations and/or (ii) the performance of a Party’s obligations under this Order would constitute a breach of Export Regulation, the Purchaser shall be entitled to:
- suspend performance of its obligations under the Order without prior notice and with immediate effect; and/or
- terminate the Order with a prior written notice and with immediate effect in accordance with Article 13.1 “Termination for Supplier’s Default”; in each case, without any liability for the Purchaser.
8. Delays
8.1 Excusable Delay. Neither Party shall be responsible for nor be deemed to be in default of its obligations under the Order to the extent that such default is caused by an Excusable Delay. The affected Party undertakes to mitigate the effects of the Excusable Delay. If an Excusable Delay occurs and causes or is likely to cause a delay in the performance by either Party of its obligations under the Order, such Party shall notify the other Party in writing immediately after becoming aware of such Excusable Delay and provide reasonable evidence of the Excusable Delay. Immediately after the Excusable Delay has ceased and subject to the provisions of Article 13.2 “Termination for Excusable Delay”, the affected Party shall, unless otherwise agreed in writing, resume the performance of its obligations.
8.2 Non-Excusable Delay
8.2.1 A delay by the Supplier in the performance of its obligations under the Order, which does not qualify as an Excusable Delay, shall be a “Non- Excusable Delay”. In such event, the Purchaser shall be entitled to:
- claim liquidated damages as specified in the Specific Conditions; and
- claim, in the event that the amount of damages exceeds the total amount of the above liquidated damages, the full amount of such excess damages in respect of all losses, expenses, costs, claims and other damages incurred by the Purchaser arising from the Non-Excusable Delay.
8.2.2 The Purchaser’s right to claim liquidated damages and other damages is in addition to, and not in substitution of, any rights the Purchaser may have under the Order or at law including the right of the Purchaser to terminate the Order pursuant to Article 13.1.
9. Warranties
9.1 Without prejudice to any other warranties, the Supplier warrants to the Purchaser that the Item and/or any part thereof shall (i) be free from any defects and be suitable for their intended use and; (ii) comprise only materials and goods which are new, of recent manufacture, merchantable and of satisfactory quality and; (iii) be compliant with the quality requirements and with the Specification, if any, of the Purchaser and; (iv) in the case of a service, be performed with all reasonable skill and care and in accordance with best industry practice.
9.2 The Supplier shall, promptly repair or replace, at the Purchaser’s request, any defective or non-compliant Item, at no cost to the Purchaser. The warranty will be for the period as specified in the Specific Conditions, but in any case, for a minimum period of twenty-four (24) months from the acceptance of the Item by the Purchaser, as provided for in Article 6.4 “Acceptance of the Item” or in the case of a service, from completion of such service. The outstanding warranty period, including the period under which the Item was under repair, shall apply to any repaired and/or replaced Item as from the date of its first use after such repair or replacement, or in the case of a service, on resumption of such service. The Supplier shall be liable for all costs incurred by the Purchaser, as a consequence of the defect or non-compliance of the Item or service, including but not limited to, removal, reinstallation, transport, certification and tests.
9.3 This Article 10 “Warranties” shall apply in addition and without prejudice to any other rights and remedies under the Order and/or available to the Purchaser at law. The Parties’ rights under the Order shall remain in effect until expiration of all warranties following delivery of the Items.
10. Price and Payment
10.1 Price. Unless otherwise specified in the Specific Conditions, prices are fixed and firm and shall be based on the delivery of the Item, as per Article 6.3.1, to the place specified in the Specific Conditions of the Order. No additional charge shall be made by the Supplier for packing, insurance or delivery unless otherwise agreed by the Parties and set out in the Specific Conditions and any such charge shall be separately identified in the Supplier’s invoices. Where no prices have been agreed and noted in the Specific Conditions at the date of the Order, but a commencement of work on the Order by the Supplier is agreed by the Purchaser, an invoice in respect of such work shall not be submitted by the Supplier before the price has been agreed by the Parties and incorporated into the Order by an amendment in accordance with Article 18 “Amendments”.
10.2 Taxes. Prices are exclusive of Value Added Tax and inclusive of, and the Supplier shall be liable for and pay, all other relevant taxes, levies and duties in connection with the Item, if any.
10.3 Invoices. For payment purposes, the Supplier shall issue an invoice concurrently with the delivery of the Item and send it for the attention of the Purchaser’s accounting department as specified in the Specific Conditions of the Order as well as with the documents accompanying the Item when delivered to the Purchaser. Each invoice shall include the designation, reference and quantity of Items, the Order and item numbers, the price, the actual delivery date, names and addresses of the Parties, any specific terms or conditions and reference to a discount, if any. The Supplier shall issue its invoices in an electronic format, as specified by the Purchaser.
10.4 Payment. Payments shall be made by electronic bank transfer to the Supplier’s nominated bank account, provided that the invoice received from the Supplier is valid, accurate and due. The Purchaser will make payments only for those Items which have been delivered in accordance with the terms of the Order. In the event of a dispute between the Parties, the Purchaser shall be entitled to withhold the payment of any disputed element of the invoice until resolution of such dispute. Payments with respect to Items shall be made thirty (30) days from the end of the month in which the invoice is issued, paid the tenth (10th) day of the next calendar month. Should the payment day be a Saturday, Sunday or a bank holiday then the payment shall be made the following business day.
10.5 If any amount due to the Supplier remains unpaid after the date on which it is payable (the Due Date), the Supplier shall be entitled to charge interest on such sum from the Due Date until the actual date of payment of such a sum, both before and after any judgment, at a rate of three (3) times the legal interest rate (“taux d’intérêt légal”) in effect on the Due Date. Penalty interest shall begin to accrue on the first day immediately following the Due Date.
10.6 Without prejudice to any other right or remedy of the Purchaser, the Purchaser reserves the right to set off any amount owing at any time from the Supplier to the Purchaser against any amount payable by the Purchaser to the Supplier in respect of an Order, or otherwise due from the Purchaser to the Supplier.
11. Liability and Insurance
11.1 The Supplier is liable to the Purchaser for all costs, losses, damages and liabilities, including without limitation, costs and expenses incidental thereto, which may be incurred by the Purchaser as a consequence of the failure by the Supplier to comply with any of its obligations under the Order. The Purchaser agrees to provide the Supplier with a breakdown of the said damages.
11.2 Each Party shall be liable for, indemnify and hold harmless the other Party, its officers, directors, employees and/or insurers from and against any and all claims, losses, liabilities, suits, judgements, expenses and costs (including legal fees) or the like in any way connected with the death of or injury to any person whomsoever, or loss of or damage to any property of any person, entity or company (including the other Party) when arising out of, or having its origin in, the acts or omissions of the indemnifying Party in connection with the performance of the Order.
11.3 Insurance
The Supplier shall subscribe and maintain, at his own expenses, with insurers of recognised reputation and security, the insurance policies needed for the coverage of its liabilities under the Order.
The Supplier shall furnish to the Purchaser on or before the date of signature of the Order and annually thereafter, the corresponding insurance certificates evidencing that such insurances are in full force and effect. However, evidence of Supplier’s subscription to the insurance coverage detailed in Article 12.3.4 below may be provided by the Supplier at the latest prior to the first delivery of the Items to the Purchaser.
11.3.1 To the extent that the performance of this Order requires the presence of the Supplier’s employees, agents or subcontractors on the site(s) of the Purchaser or other designated sites, the Supplier shall effect and maintain general third party liability insurance commensurate with the exposure potential for loss of or damage to property of, or death of or injury to any person including the Purchaser, resulting from performance of the Order and such insurance cover shall not be less than fifteen million Euros (EUR 15,000,000) (or the equivalent) per occurrence, or any lower figure to the extent agreed in writing by the Purchaser.
11.3.2 The Supplier shall, when having any Purchaser’s or third party’s property under its care, custody, or control for whatever reason required under the Order, including but not limited to the use of or the performance of work on such property, effect and maintain hangarkeepers’ liability or property on care or custody insurance. The limit of coverage of such insurance shall not be less than the full replacement value of the property placed under the care, custody or control of the Supplier, whether on its premises, or on the premises of the Purchaser or on such other premises as the Purchaser requires.
11.3.3 If the Supplier is required to carry out work which requires professional indemnity insurance, the Supplier shall provide the Purchaser with a certificate of insurance evidencing that such insurance is in full force and effect and with an adequate amount as would be maintained by prudent companies in similar business and activities.
11.3.4 The Supplier shall effect and maintain cyber liability insurance providing coverage for data security and privacy, including coverage for unauthorised access and use, failure of security, breach of Confidential Information, release of privacy information, invasion of privacy violations, information theft, damage to or destruction of electronic information, alteration of electronic information, extortion, breach mitigation costs and regulatory coverage. The amount of coverage of such insurance shall not be less than five million Euros (EUR 5,000,000) (or the equivalent) per occurrence and in the annual aggregate.
11.3.5 The Supplier shall subscribe and maintain any other insurance that is customarily required to be purchased by companies having business of a similar nature and/or any other insurance as may be required by law or otherwise.
12. Termination
12.1 Termination for Supplier’s Default. In the event the Supplier breaches or fails to comply with one or more of its obligations, the Purchaser may give the Supplier written notice of such breach or non-compliance at any time thereafter. The Supplier shall remedy such breach or non- compliance within twenty-eight (28) days from the date of such notice. If the Supplier does not remedy the breach or non-compliance within the said twenty-eight (28) days or if the breach is not capable of remedy then the Purchaser shall, without incurring any liability whatsoever, have the right to immediately terminate the Order in progress (in whole or in part) by giving written notice of termination to the Supplier to that effect, without prejudice to the Purchaser’s rights to claim damages and/or any other remedies which the Purchaser may have at law and/or under the Order. The provisions of Article 13.4 “Termination Procedures” below shall apply and the termination account shall proceed accordingly.
12.2 Termination for Excusable Delay. In the event that an Excusable Delay exceeds or is expected to exceed thirty (30) days following the occurrence of the cause thereof, each Party shall be entitled to terminate forthwith the Order, or any part thereof, by giving written notice of termination to the other Party, without incurring any liability whatsoever.
12.3 Termination Procedures
12.3.1 As of the effective date of termination, the Supplier undertakes to cease all further performance related to the terminated Order (unless otherwise instructed by the Purchaser) and the Supplier shall comply with all directions or instructions regarding the Items which the Purchaser provides to the Supplier.
12.3.2 Termination for Supplier’s Default. The Supplier shall be liable for all losses, expenses, costs, claims and damages incurred by the Purchaser as a result of a breach by the Supplier of this Order or of the Conditions. The Supplier shall indemnify the Purchaser in full against any losses, expenses, costs, claims or damages whatsoever (including without limitation legal costs) resulting from the negligence, willful misconduct, breach of contract or breach of statutory duty caused by the acts or omissions of the Supplier, its employees, subcontractors or agents in performance of the Order or in connection with any defect in an Item.
12.3.3 Termination for Excusable Delay/without Supplier’s Default. The Purchaser and the Supplier shall agree a fair and reasonable price for all work done and material purchased for the purpose of carrying out work on the Order up to the date of termination. In order to agree such price, the Supplier shall submit an account to the Purchaser within three (3) months from the date of termination in a form satisfactory to the Purchaser. The agreed price, together with any sums paid or due to the Supplier under the Order before the effective date of termination shall not exceed the total price of the Items under the Order and such payments shall be the Purchaser's sole liability in respect of the termination.
12.3.4 Any termination of the Order by the Purchaser for whatever reason shall be without prejudice to any rights or remedies which may have accrued to the Purchaser prior to termination and the Purchaser shall use its reasonable endeavours to mitigate its loss on any termination.
12.4 Surviving Articles. All Articles in the Order and these Conditions which by their nature should survive expiry or termination of the Order shall remain in full force and effect after such expiry or termination.
13. Intellectual Property Rights
13.1 All intellectual property created as a result of the work undertaken by the Supplier or its subcontractors for the purpose of the Order, or for the supply of the Items, shall automatically be transferred to the Purchaser and all such rights shall vest in and be the sole property of the Purchaser. If, however, by operation of law, the Supplier is deemed the owner to the rights for such newly created intellectual property, the Supplier hereby grants to the Purchaser, and will cause its employees, agents and contractors to grant to the Purchaser as soon as created and in consideration of the price set forth in the Order, an irrevocable, royalty free, transferrable, worldwide licence for full exploitation rights of the created intellectual property including the right of reproduction in any form, language, format and medium, the right of distribution in part or in whole including the right to sell, loan, rent, distribute, download by any means and in any language, the right to modify, adapt, improve, correct and translate in any form and language, and interface with any other item, including the right to sub-license all the above-mentioned rights.
13.2 The Supplier undertakes to execute any assignment or other documentation necessary to give effect to the transfer of the intellectual property created as a result of the work undertaken by the Supplier or its subcontractors for the purpose of the Order to the Purchaser.
13.3 The Supplier hereby grants to the Purchaser, at no additional charge beyond the price specified on the Order, an irrevocable, non-exclusive and worldwide licence to hold, use and sub-license for the benefit of third parties all relevant Supplier’s background intellectual property necessary for the performance of the Order or the use of the Item for the duration of the rights, which the Supplier shall ensure lasts at a minimum for the duration of the Purchaser’s reasonable intended use of the Items. The Supplier grants the Purchaser the right to sub-license all the above- mentioned rights.
13.4 In addition, and in the case of customised or altered off-the-shelf Items and non-off-the-shelf Items, such licence granted by the Supplier to the Purchaser shall include for the Purchaser the right of reproduction in any form, language, format and medium, the right of distribution in part or in whole including the right to sell, loan, rent, distribute, download by any means and in any language, the right to modify, adapt, improve, correct and translate in any form and language, and interface with any other item. The Supplier grants the Purchaser the right to sub-license all the above-mentioned rights.
13.5 Infringement Indemnity. With respect to any third party claims, suits or actions relating to the infringement or alleged infringement of any intellectual property rights of a third party in relation to the Items purchased or the Order, the Supplier shall defend, fully indemnify and hold harmless the Purchaser, its agents, successors and assigns, against any and all costs, losses, damages, liabilities, expenses (including legal fees), fines or other financial sanctions or loss of profit which may be incurred as a result of any alleged or proven infringement.
13.6 The Supplier shall promptly inform the Purchaser of any dispute or claim (legal or otherwise) that arises with a third party and the substance of such dispute or claim.
13.7 The Parties shall consult closely in relation to defending such claims, suits and actions.
14. Confidentiality and Publicity
14.1 Any and all information relating to the Order and communicated by the Purchaser to the Supplier, or to which the Supplier may have access in connection with the Order, and/or any information in any form, on any medium, which is declared as being confidential or which can reasonably be regarded as confidential because it is by its nature, commercially sensitive or is manifestly of a confidential nature shall be referred to as “Confidential Information”.
14.2 The Supplier shall use Confidential Information exclusively for the purposes of the Order. Disclosure of Confidential Information to the Supplier’s personnel shall be for the purpose of performance of this Order only and shall be on a strictly need-to-know basis. The Supplier shall not disclose any Confidential Information to any third party without the Purchaser’s prior written consent.
14.3 The Supplier shall be under no obligation of confidentiality if it can prove that the Confidential Information was (i) already publicly known when the Supplier gained access to it or (ii) that it became publicly known through no fault of the Supplier after it gained access to it or (iii) that the Supplier was able to lawfully gain access to the Confidential Information.
14.4 The obligations relating to confidentiality shall remain in full force and effect for the duration of any Order and continue for a period of five (5) years after the expiry or termination of the Order.
14.5 Neither Party shall make any news release or public announcement referring to the Order, nor use, reproduce or imitate for any purpose whatsoever any of the filed, registered or unregistered trademarks of the other Party, including its company names, associated logos, programme names or logos associated with its products or services, unless a prior written consent is given by the other Party, by the Purchaser.
15. Assignment and Transfer
The Purchaser shall be entitled to assign or transfer at any time all or part of its rights, warranties, benefits, remedies and obligations under the Order to any third party. The Supplier shall not assign or transfer any of its benefits, rights, remedies and/or obligations under the Order to a third party without the prior written consent of the Purchaser.
16. Governing Law and Dispute Management
16.1 This Order shall be governed by and construed and shall take effect in accordance with the laws of France, excluding the application of the 1980 “United Nations Convention on Contracts for the International Sales of Goods”.
16.2 Amicable Resolution. In the event of any dispute, controversy or claim (a “Dispute”), arising out of or in connection with this Order including any question regarding its existence, validity or termination, the Parties shall make every effort to resolve the Dispute amicably within a period of three (3) months following written notification of a Dispute by one to the other.
16.3 Arbitration. If the Parties fail to amicably resolve the Dispute within the three (3) month period referred to above, such Dispute shall be finally determined and settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce. The number of arbitrators shall be three (3) and the place of arbitration shall be Paris, France. Each Party shall nominate one arbitrator and the two arbitrators shall nominate the president in consultation with the Parties. The language to be used in the arbitral proceedings shall be English. The law of this arbitration agreement is that of the seat. Either Party retains the right, consistent with this Order, to apply to any court of competent jurisdiction for provisional, injunctive and/or conservatory relief, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate.
16.4 The existence and content of the arbitral proceedings and any ruling or award shall be kept confidential by the Parties and members of the arbitral tribunal except (i) to the extent that disclosure may be required of a Party to fulfil a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority, (ii) with the consent of all Parties, (iii) where such information is already in the public domain other than as a result of a breach of this Article 17 “Governing Law and Dispute Management”, or (iv) by order of a state court or other judicial authority upon application of a Party.
16.5 The Parties expressly agree that the time limit to bring an action in relation to the Order (“extinctive prescription”) is ten (10) years from expiration of the last applicable warranty.
17. Amendments
The Order including these Conditions shall not be amended except by specific agreement in writing (including changes and amendments to this Article 17 “Amendments”), signed by duly authorised representatives of the Parties.
18. Independent Contractors
The relationship of the Parties under these Conditions shall be that of independent contractors. Neither Party shall have the right to contract or in any other way to enter into commitments on behalf of or in the name of the other Party.
19. No Joint and Several Liability
The Parties agree that the Purchaser alone shall be exclusively liable to the Supplier for payment of all sums due in connection with the Order to the exclusion of all other STORMSHIELD Companies.
20. Entire Agreement
20.1 This Order constitutes the entire agreement between the Parties in relation to its subject matter. It replaces and extinguishes all prior agreements, draft agreements, arrangements, collateral warranties, collateral contracts, statements, assurances, representations and undertakings of any nature made by or on behalf of the Parties, whether oral or written, in relation to that subject matter.
20.2 Each Party acknowledges that in entering into this Order it has not relied upon any oral or written statements, collateral or other warranties, assurances, representations or undertakings which were made by or on behalf of the other Party in relation to the subject matter of this Order at any time before its signature (together "Pre-Contractual Statements"), other than those which are set out in this Order. Each Party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements.
20.3 Nothing in this Article 21 “Entire Agreement” shall exclude or restrict the liability of either Party arising out of its pre-contract fraud or fraudulent misrepresentation.
21. Notices
Unless otherwise specified, all notices and communications between the Purchaser and the Supplier in respect of the Order shall be in writing and sent by hand, mail, electronic mail, facsimile, or messenger service to the Procurement Department at the Purchaser’s facility identified in the Specific Conditions. The date of delivery of any such notice or communication shall be the date of despatch, if delivered by hand, electronic mail, facsimile or messenger service, or five (5) days after mailing, if delivered by mail.
22. Waiver
Failure or delay at any time by either Party to enforce any provision of the Order, or any part thereof, shall not constitute a waiver of such provision or affect the validity of the Order, nor prejudice the right of the affected Party to enforce such provision at a subsequent time.
23. Severability
Any provision of the Order prohibited by, or unlawful or unenforceable under the governing law actually applied by any court of competent jurisdiction shall, to the extent required by such law, be severed from the Order and replaced with another provision having substantially the same effect without it modifying the remaining provisions.
24. Language
These Conditions have been drawn up in English and only this language version shall be deemed authentic. Any translation of these Conditions into a language other than English shall be for information purposes only. All notices, correspondence, communication and documentation to be issued, exchanged or delivered to either Party in connection with this Order shall be in English.
25. Hardship
The Supplier and the Purchaser expressly agree to exclude all legal provisions related to hardship that may be applicable to the Order, including article 1195 of the French civil code.