Standard Terms and Conditions of Sale and Service

ORDERS

By placing an order, the Customer fully accepts without reserve these terms and conditions, excluding any other documents such as prospectuses, advertisements, etc, which are of indicative value only. Any exemption from these Standard Terms and Conditions of Sale and Service shall be subject to STORMSHIELD’s prior written agreement.

Only orders placed with STORMSHIELD in writing shall be deemed valid. The Customer must provide all necessary information for the order, in particular the delivery address, the invoicing address (if different from the delivery address), STORMSHIELD references of ordered Products and their unit price before VAT, the description of the Services and the corresponding price before VAT, and where applicable, the intercommunity VAT number.

Orders placed with STORMSHIELD are firm and subject to STORMSHIELD’s approval. Order cancellations and modifications by the Customer shall not be acknowledged without STORMSHIELD’s prior approval. Product supply is subject to Product availability. In the event a Product becomes unavailable after an order has been placed, STORMSHIELD will inform the Customer in writing, by e mail or by fax, of the expected date the said Product will be available and/or suggest an alternative Product with at least the equivalent features. STORMSHIELD reserves the right to modify its products and services as and when it deems fit and to make changes to the models defined in its prospectuses and catalogues without prior notice to the Customer.

DEFINITIONS

- The “Customer” means the professional consignee of the Product or beneficiary of the Services;
- The “Software” means every element subject to intellectual property rights, including documentation, specific developments and configuration. Three types of software can be integrated into the Products:

• “STORMSHIELD software”, for which STORMSHIELD possesses all intellectual property rights;
• “Third party Software”, for which STORMSHIELD has been granted a license, allowing STORMSHIELD to transfer certain intellectual property rights;
• “Freeware”, subject to their specific individual licenses.

STORMSHIELD’s software and third party software shall be collectively considered “Proprietary Software”.
- “Hardware” refers to all tangible elements of the Product, excluding consumables;
- The “Product” refers to the final finished Product comprising the hardware and software for use according to its intended purpose as set out in its documentation.
- “Services” refer to the Services provided by STORMSHIELD.

PRODUCTS AND SERVICES

Explanatory leaflets, features and performance figures published in the catalogs and other advertising media are for information only. STORMSHIELD reserves the right to modify information where it deems fit except for characteristics deemed essential in the order placed by the Customer. Services are assigned to a single product identified by a serial number and cannot be transferred to any other product except for a replacement product.

LEAD TIME

Deliveries shall be made only according to availability and in the order in which orders are received. STORMSHIELD is authorized to make partial or whole deliveries. Lead times are indicated as accurately as possible but are subject to STORMSHIELD’s supply and transportation capacities. Delays in lead times shall not be grounds for damages, retention or cancellation of ongoing orders. Under all circumstances, the agreed lead times shall be extended in the event of a force majeure.

The following shall be considered forces majeures: partial or complete work stoppage of STORMSHIELD employees or employees of its suppliers, subcontractors or carriers due to strikes, fire, floods, bans or embargoes on imports or exports, withdrawals of licenses, etc.

DELIVERY

Product related risks, regardless of their nature, shall be transferred according to the INCOTERMs agreed upon between the parties with regard to the transportation mode. The transfer of property of the products is, on the other hand, subject to full receipt of payment for the products and services ordered. In the event a carrier takes charge of the delivery, it is the Customer’s duty, in the event of damage or partial delivery, his observations on the delivery documents and to confirm his reservations by registered mail to the carrier in the 3 days from receipt of the Products. All claims after this date shall be considered null and void.

Without prejudice to the provisions stated above, the Customer has to inform STORMSHIELD of any anomalies by registered post within the same time frame. It is the Customer’s duty to provide proof as to the veracity of defects or anomalies identified. He shall facilitate STORMSHIELD’s investigation of the said defects and remedy. He shall refrain from intervening on his own or allowing a third party to intervene for such purposes.

RETURNS CANCELLATION OF ORDERS

The Customer must, before placing any order for a Product or Service, ensure that the Product or Service meets his needs. All Product returns, order cancellations or modifications must first be approved in writing by STORMSHIELD, who reserves the right in certain circumstances to grant its authorization on condition that expenses incurred in the said order will be borne by the Customer, namely: expenses incurred in transportation, training, factory configuration, technical support and research/purchase/manufacturing expenses in the case of specific or bulk orders.

Returns will not be accepted after a period of 6 months from the date of delivery. Returned products shall be accompanied by a return voucher to be affixed on the package and shall be in the same condition as upon delivery. Under all circumstances, in the event the returned Product does not appear to be in a saleable condition, the above agreement will be null and void and the entire amount due for the Products and/or Services shall be payable. Expenses and risks incurred in returning products shall be borne by the Customer.

MAINTENANCE

The Customer has the possibility to subscribe to both a maintenance program and a Security Pack. The Customer may subscribe to each program for a set number of years, bearing in mind that the total number of years cumulated may not exceed the lifetime of the product in question. The process begins when the Customer registers the serial number of the product concerned in the secure access area on STORMSHIELD’s website. If a new maintenance program is being subscribed to, the process shall begin from the expiry date of the previous maintenance program.

Maintenance Programs contain the following:

• Corrective updates and upgrades for software components (without any guarantee on STORMSHIELD’s part as to the perfect compatibility of updates performed with older appliances);
• Access to the secure-access area on STORMSHIELD’s website;
• Appliance exchange service according to the options subscribed in the order.

TRAINING

A deferral or an inscription cancellation is permitted until 7 working days before the first day of the training session, without any justification nor financial penalty.

An inscription cancellation occurring less than 7 working days before the first day of the training session, or a non-presentation of the trainee on the first day of this training, or an abandon of the training course during the session, except in Force Majeure cases, shall be considered as a cancellation and the entire cost of the training course shall be invoiced without giving rise to a reimbursement.

CONTRACTING

STORMSHIELD is at liberty to subcontract all or certain services it has been expected to provide to service providers of its choice by virtue of these terms and conditions.

INTELLECTUAL PROPERTY

The Products supplied by STORMSHIELD within the scope o these standard terms and conditions of sale contain Software subject to intellectual property rights. The Products may contain Third Party software and/or Freeware. The intellectual property rights in STORMSHIELD software remain the property of STORMSHIELD. The Customer is granted the use of the proprietary software only as integrated in the Product. Transferred intellectual property rights and transfer terms and conditions are detailed in the license agreement made between the parties. These terms and conditions are, unless otherwise indicated in the license agreement, applicable to software updates. The Customer shall not exercise rights that have not been expressly authorized.

The Customer shall make every effort to avoid the infringement of any intellectual property rights and the exercise of rights that have not been expressly authorized. The terms and conditions of use of third party software are provided in the license agreement supplied with the Product, or while the Service is provided. The terms and conditions of use of freeware can be downloaded from the Internet. The Customer undertakes to read and accept these terms and conditions prior to the use of the Product and Services. STORMSHIELD declares its compliance with its obligation to contribute changes to the community as per the provisions of the domain.

TREATMENT OF WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT

In compliance with articles R. 543 179 to R. 543 206 of the French Environmental Code (Decree no. 2005 829 of July 20 2005 relating to the composition of EEE and the disposal of waste from such equipment), STORMSHIELD has been registered as a producer of electrical and electronic equipment with the ADEME (Agency for the Environment and Energy Management).

All STORMSHIELD products bear tags that identify them as well as a control label indicating the release date. In the absence of any agreement with the Client to the contrary, STORMSHIELD shall oversee the professional organization and financing of the treatment of WEEE released by STORMSHIELD after 13/08/05, after the Client has sent to STORMSHIELD, at the Client’s own cost and risk, equipment and components affected by the article. In order for STORMSHIELD to provide the said treatment, the Client shall undertake to inform STORMSHIELD of his equipment’s end of life, and to send it to the following address: NSE BU SERVICES - Activité STORMSHIELD, Réception Bâtiment A, ZA de la Tour, 03200 ABREST – FRANCE.

STORMSHIELD shall not in any case and for whatever reason, be held liable for the Client’s failure to carry out the duties expected of him as stated in the article.

WARRANTY

HARDWARE WARRANTY

Hardware Products are guaranteed free from operational defects, manufacturing or design flaws, for the applicable duration in the destination country.

The warranty is limited to the replacement of the appliance, with return expenses payable by the Customer and reshipment expenses payable by STORMSHIELD. The current warranty does not take into account apparent defects and does not cover damage caused by accidents, defective installations, poor maintenance or use of the Product in a manner not recommended in the Product manual. The warranties herein do not extend to damage arising from external causes or forces majeures (war, riots, fire, strikes, accidents lightning, floods, etc).

In the event the Customer modifies or tampers with the Product or software outside the scope of STORMSHIELD’s Services, these warranties will be rendered void. Interventions within the scope of the warranty shall not be taken to extend the duration of the said warranty.

SOFTWARE COMPLIANCE WARRANTY

STORMSHIELD guarantees the compliance of its Software with the documentation supplied to the Customer.

Orders for software options may be placed only if a specific maintenance service provided by STORMSHIELD has been ordered.

NON INFRINGEMENT WARRANTY

STORMSHIELD guarantees its possession of the relevant rights over proprietary software allowing it to supply the said software as integrated in the Products and/or Services. STORMSHIELD guarantees its possession of the relevant rights over the Product’s trademarks. STORMSHIELD does not provide any warranty on freeware as per the norms of the industry.

LIABILITY

Without prejudice to the provisions relating to defective goods, STORMSHIELD shall not be held liable for any damage to other goods or any financial, commercial or other prejudice (loss or destruction of data) arising directly or indirectly from the use or operation of the supplied Products or Services performed.

Be that as it may, in the event STORMSHIELD acknowledges liability for a Product delivered or a Service performed, the maximum amount of compensation payable to the Customer shall not exceed the amount the Customer has paid for the Product or Service in question.

PRICING PAYMENT

Charges for Products or Services provided are based on the price list in force on the date of the Order or at the amount indicated on the invoice, which is valid for 30 days from the date of its creation. Prices are indicated in Euros, before tax, excluding transportation expenses, based on prices that STORMSHIELD has communicated to the Customer.

The Customer shall make it his personal business to settle any tax, duty, title or other service payable in compliance with French regulations or those of an importing or transit country. Discounts negotiated on a case by case basis may be granted. STORMSHIELD does not offer discounts on cash payments or on payments preceding the issue of these Terms and Conditions of Sale and Service. The mandatory payment schedule is the schedule that appears on the invoice. As a general rule:

• For all Customers, payment shall be made during the order or upon delivery for cash on delivery agreements.
• Subject to agreement to open an account, STORMSHIELD may grant a payment period, in which case payment will be due 30 calendar days from the date of the invoice. If the due date does not fall on a working day, it shall be extended to the next working day.

Late payment penalties will be enforced and payable with effect from the day after the payment date indicated on the invoice. Payment shall be made to STORMSHIELD by check made out to STORMSHIELD or by wire transfer.

STORMSHIELD reserves the right to demand the following from the Customer for sums outstanding on the due date:

• Late payment interest at the rate applied by the Central European Bank in its most recent refinancing operation increased by 10 percentage points on amounts overdue from the payment due date until the date that actual payment is cleared;
• Immediate payment of the full debt in the case of payment by installments
• Immediate settlement of all invoices that are not yet due
• Suspension or cancellation, at STORMSHIELD’s discretion, of orders or Services in progress.

STORMSHIELD shall automatically deduct from all discounts, rebates or reductions, the amount of late payment interest incurred by the Customer. STORMSHIELD may, where it deems fit, modify payment periods, demand the payment of a deposit or a guarantee in the case of Customers who have previously failed to settle invoices, whose credit ratings have deteriorated, or whose guarantees have been reduced or terminated by STORMSHIELD’s credit insurance company. STORMSHIELD may also, by operation of law, refuse orders from Customers with whom there are ongoing disputes relating to the payment of previous orders. In the event of non payment, 48 hours after the Customer has been given notice to settle, STORMSHIELD reserves the right to rescind or annul the corresponding order. In such an event, the Customer shall immediately return the Products in question, without prejudice to any other damages STORMSHIELD may claim.

All sums that would have been due for other deliveries, or for any other reason, will be immediately payable if STORMSHIELD opts out of the resolution of the corresponding orders. With effect from January 1st 2013 and in compliance with decree 2012 1115 of October 2 2012, the cost of recovering the sums mentioned above shall be set at forty (40) euros (EUR).

RETENTION OF TITLE

STORMSHIELD reserves until the full payment by the Client, a right of ownership of the sold Products, allowing him to repossess such Products in case of non-payment.
Starting the delivery date as defined in the article “Delivery”, the Products are under the Client’s responsibility until the transfer of ownership. The Client shall bear all risks the Products they may suffer or cause, for any reason whatsoever, even in cases of force majeure, fortuitous event or due to a third party. The conveyance of any deed creating an obligation to pay such as without limitation a letter of credit or other does not constitute a payment within the meaning of the present provision and the retention of title will stay valid until full payment. Client shall, on request to the Supplier, justify it took out an insurance policy covering the Products in his possession. He is engaged to maintaining these guarantees until the ownership transfer for the sold Products.

The Client shall ensure until the transfer of ownership to the Products the good preservation of the means of identification applied by the Supplier on the packaging in which the Products are delivered or on the Products themselves. The Supplier reserves the right to verify by any means that the Client has complied with the above mentioned obligations without the latter can oppose this verification.

ASSIGNABIILTY

The agreement formed by the acceptance of these Standard Terms and Conditions of Sale and Service and of the software licenses they include cannot, in whole or in part, be assigned by the Customer without express prior written approval from STORMSHIELD.

STOCKS

The Customer must anticipate his needs with regard to Products. In the event of termination of this agreement by the Customer, regardless of the reason, the client shall acknowledge that he shall no longer be entitled to a refund on the Products he has in stock. Any invoice relating to an order placed by the Customer shall become payable upon its due date.

FINAL DESTINATION CONTROL

The Customer must obtain STORMSHIELD’s authorization prior to any resale or use of the Product in a geographical zone other than where the Product has been delivered.

IMPORTATION OF DUAL USE ITEMS

In accordance with the latest amended version of the Council Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual use items, some of the STORMSHIELD appliances and products are items subject to such control if they are exported outside the European Community.

SPECIFIC REGULATIONS

Cryptography is subject to specific regulations. It is the Customer’s duty to ensure compliance with the relevant regulations in his own country and where necessary, to conduct the necessary formalities. STORMSHIELD shall not be held liable for any contravention of legislation in the country where Products and Services have been supplied. The Customer guarantees that STORMSHIELD shall in no way be involved as a party to a lawsuit arising from any breach of specific regulations.

DATA PROTECTION

For the purpose of this clause, the following terms, Data Controller, Data Processor and Personal Data, will be attributed the meaning defined by the EU Directive 2016/679EC on the protection of individuals with regard to the processing of personal data, and on the free movement of such data. With respect to the said Terms & Conditions contract, and in the context of Personal Data, data processing and reporting, the Parties acknowledge that the Customer is the Data Controller and that STORMSHIELD is the Data Processor. Nevertheless, where data is processed subsequently STORMSHIELD in turn becomes the Data Controller. In such a situation the Customer becomes the Data Processor and will cooperate with STORMSHIELD in order to ensure compliance with applicable Laws and Regulations on Personal Data and/or in case of inspection by the competent data protection authorities. The Customer alone remains liable for the respect of the rights of individuals that are concerned by the process, i.e. access rights, the right to request amendments and/or deletions and if necessary the right to object. Each party agrees to comply with the EU Directive 95/46/EC. Under this Terms & Conditions contract, STORMSHIELD undertakes:

• to process Personal Data that has been collected for the sole purpose of and, generally, to act only within the context of the said Terms & Conditions contract;
• to ensure the protection of Personal Data (including processing of said data) entrusted to him by the Data Controller;
• to take all necessary precautions in order to preserve the confidentiality and security of Personal Data, and in particular to prevent it from being distorted, damaged or communicated to unauthorised third-parties. More generally he is required to implement appropriate technical and organisational measures so as to protect the Personal Data from any accidental or unlawful destruction, accidental loss, alteration, dissemination and/or unauthorised access, especially when the processing of same involves the transmission of data over a network, as well as against all unlawful forms of processing provided that, given the best practices and the cost of their implementation, these measures shall ensure a level of security appropriate to the risks inherent in the processing and the nature of the data to be protected;
• to establish security clearances as a means of restricting people's access to Personal Data;
• to ensure that persons having access to Personal Data are subject to an appropriate mandatory confidentiality and security check;
• to ensure that its personnel do not collect, process or use the Personal Data without its express authorization.
• to ensure that Personal Data is not used for any purpose other than that expressly provided for in this Terms & Conditions contract ;
• to take appropriate technical and organisational security measures adapted to data processing and to any operations that may be performed on the data;
• to correct any errors or inaccuracies in Personal Data that are the result of data processing in a prompt manner, whether STORMSHIELD is responsible for the errors or not.

Furthermore, STORMSHIELD undertakes to:

• respond without delay to any requests from the Customer concerning the processed Personal Data
  in order to allow the Customer to take into account, in a timely manner, possible requests filed by interested third-parties (access rights, amendments, destruction of data etc.);
• proceed to the destruction of all files containing Personal Data, or to return in full, all data on termination of the Terms & Conditions contract;
• respect the Personal Data retention period as stated by the Customer;
• not resort to a subcontractor to execute services described in this Terms & Conditions contract, unless the latter has been expressly cleared by the Customer in its capacity as Data controller. In this instance, STORMSHIELD becomes liable for all of the subcontractor’s actions within the context of a contract to be validated by the Customer.
• not engage in any cross-border transfer of Personal Data from a country situated in the European Union to any country situated outside the European Union, which are not deemed to have an adequate level of protection of Personal Data according to the European Commission.

STORMSHIELD shall not use either the Personal Data collected, data medium or documents for his own interest or for that of a third party’s, be it for personal or professional gain. Similarly he will not make use of all or part of the information either stored or collected during the setting up of the Terms & Conditions Contract. STORMSHIELD acknowledges that it will be liable to the Data Controller for all damages that could occur due to its lack of compliance with its obligations under the said Terms & Conditions Contract.

TECHNICAL SUPPORT

Access to technical support is granted only if a specific maintenance service provided by STORMSHIELD has been ordered. Technical support is provided by STORMSHIELD and/or its subcontractors and is available to Customers, subject in certain cases, to prior registration with STORMSHIELD. The Customer is advised to first read the Technical Support Document available in the secure-access area on mystormshield.eu.

CONFIDENTIALITY

Each party undertakes to treat the confidential information it may receive from the other party as its own, in the strictest confidentiality.

APPLICABLE LAW JURISDICTION

These standard Terms and Conditions of sale are governed by French law with regard to interpretation and enforcement, both in form and in content. If translations of various contractual documents exist, the version in English shall prevail in the event of a dispute. In the event of a dispute, after an attempt has been made to find an amicable solution to no avail, express jurisdiction has been assigned to the Commercial Court of Nanterre, notwithstanding the number of parties and the type of procedure.

MISCELLANEOUS

If one or several stipulations in the Standard Terms and Conditions of Sale and Service are deemed invalid or declared as such during the application of a law, regulation or the ruling of a competent jurisdiction, the other stipulations shall retain their validity and scope. The parties mutually agree that one party’s tolerance of a situation shall neither be deemed as conferring acquired rights to the other party, nor to be taken as a waiver of the rights at stake.