General terms and conditions of sale

Words and expressions in the GTC that begin with a capital letter, whether used in the singular or plural, masculine or feminine, shall have the meaning given to them in this Article :

“Order Form“: Refers to the standard document, estimate or other formalized offer, detailing the nature and prices of the Sensors ordered by the Customer from HEYLIOT and binding on the Parties as soon as it is expressly accepted by HEYLIOT after signature by the Customer. All Purchase Orders are governed by the GCS. An Order Form whose validity date would have expired but which would have been expressly accepted by HEYLIOT will be binding on the Parties.

“Sensor(s)“: means any sensor(s) supplied by HEYLIOT to be installed on containers and allowing the management of their filling.

” Customer(s) “: Designates any individual or legal entity engaged by an Order.

” Order “ : Refers to the formalization, by the signature of an Order Form, of the purchase of Sensors proposed by HEYLIOT in the Order Form. HEYLIOT is committed only after the effective receipt of the payment requested on the Order Form.

“General Conditions of Sale” or “GCS”: Refers to the present General Conditions of Sale.

“Contract“: Refers to the present General Terms and Conditions of Sale (hereinafter referred to as the “GTS”) and the Order Form as well as their possible annexes and amendments, these documents together forming an indivisible whole, the acceptance of the Order Form constitutes acceptance of the present GTS.

“Documentation“: Refers to all technical and commercial documents, brochures, brochures, booklets, files, databases and electronic data relating to the Sensors.

“HEYLIOT“: Refers to the HEYLIOT company, a simplified joint stock company with capital, registered with the Rennes RCS under the number 833 328 958.

” Offer(s) ” : Refers to a commercial offer from HEYLIOT addressed to a prospect in response to the expression of needs formulated by the latter. The formal acceptance of the Offer by the Customer is equivalent to an Order Form.

“Third Party“: Refers to any person, natural or legal, outside the contractual relationship between the Customer and HEYLIOT.

The present GCS are applicable to all Sensors marketed by HEYLIOT and proposed to the Customer. Indeed, the stipulations contained in the present GCS are applicable to any element of the Contract (Order Form and all related documents) relating to the Sensors, concluded between HEYLIOT and its Customers in France or abroad.

The present GCS prevail over any purchase conditions or any other document issued by the Customer, unless HEYLIOT has expressly and formally waived them. Consequently, any contrary condition set forth by the Customer will be unenforceable against HEYLIOT, regardless of when it may have been brought to its attention, unless HEYLIOT expressly accepts it, as evidenced in particular in the Purchase Order. These GCS constitute an essential element of HEYLIOT’s acceptance to contract.

The fact of signing the Order Form implies the full and unreserved acceptance of the Customer to these GCS. The Customer, in particular its signatory, certifies that it has the full legal capacity necessary to commit itself to the Purchase Order.

Orders are only firm and definitive when they have been confirmed by HEYLIOT in writing by sending the Order Confirmation defined in article 4.2 hereof. The Order Form proposed by HEYLIOT to the Customer has a limited acceptance period as provided for herein and/or in the said document. The Orders are subject to the conditions set forth in the Order Form which complete and specify the elements of these GTC applicable to the Customer. Consequently, the written acceptance of the Purchase Order by the Customer shall constitute a firm and definitive Order to HEYLIOT (hereinafter “Acceptance”). The benefit of the Order is personal to the Customer and cannot be transferred without the prior written consent of HEYLIOT.

• General Stipulations

Any Order from the Customer, whatever the medium (email, telephone, written) or form, will only be considered firm and definitive by HEYLIOT after having been the subject of a written Order Form, whatever the medium (paper, electronic format), signed and accepted by HEYLIOT under the conditions defined below. Following the transmission of the Order Form by HEYLIOT, the Customer has a period of THIRTY (30) calendar days to benefit from the commercial and pricing conditions contained therein (hereinafter the “Validity Period”). The possible modifications of Orders requested by the Customer can only be taken into account, within the limits of HEYLIOT’s possibilities and at its sole discretion, if they are notified in writing and during the Period of Validity, after signature by the Customer of a new specific Order Form and possible adjustment of the price. Beyond the Period of Validity, the Customer will no longer be able to take advantage of these conditions. Once the Order Form has been duly completed and signed, materializing the Customer’s Acceptance, the Customer must return it by e-mail to the following address: sales@heyliot.com or send it to the following address: HEYLIOT, Le Village by CA, 3 Avenue Germaine Tillion, 35136 Saint-Jacques-de-la-Lande. Following receipt of these documents, HEYLIOT will validate its acceptance of the Order by sending an Order confirmation to the Customer, under the conditions defined in 4.2 below.

• Order Confirmation

Within FIVE (5) business days from the receipt of the Order Form by HEYLIOT, under the conditions specified above, HEYLIOT will send the Customer a written confirmation of the Order, in whatever form or medium (hereinafter the “Order Confirmation”), which will indicate acceptance of the Order by HEYLIOT and specify : (i) The amount as well as the terms and conditions of payment of the Order; (ii) The estimated delivery time as well as the terms and conditions of delivery applicable to the Sensors ordered by the Customer under the Purchase Order.

• Deadlines

The delivery times for the ordered Sensors are indicated on the Order Form. Any event that may have an influence on the delivery of the Order will be immediately brought to the attention of the Customer by HEYLIOT. HEYLIOT will immediately notify the Customer of this event, in accordance with the Notification procedure defined in Article 15 hereof. The notification will state, as far as possible, the probable duration of the event and its consequences on the delivery time.

• Penalties

In the event of failure to comply with the delivery date stipulated in the Order Confirmation plus thirty (30) days (hereinafter the “Tolerance Period”), except for delays attributable to a service provider of the Customer or Third Parties hereto, HEYLIOT undertakes to pay the Customer compensation for delay, once the Tolerance Period has elapsed, equal to one percent (1%) of the price of the Order for each additional week of delay. In any event, the amount of late payment penalties for a given Order is expressly capped at five percent (5%) of the total amount of the Order before tax and the Customer shall not be entitled to any rights other than those set forth in this article, except in the event of gross negligence on the part of HEYLIOT. However, these penalties will not be applicable in the event of delays resulting from acts or omissions of the Customer or from one of the events or causes mentioned in Article 14 hereof.

• Transport – Transfer of risks

Delivery of the Sensors to the address indicated by the Customer on the Order Form is made by the carrier designated by HEYLIOT. The Sensors which are delivered to the Customer by a carrier appointed by HEYLIOT, travel at the Customer’s risk and peril from the moment they are handed over to the said carrier.

• Retention of title

Ownership of the ordered Sensors will only be transferred to the Customer upon full payment of the corresponding invoices, possibly increased by the late payment penalties provided for in Article 9.3 hereof and reduced by the penalties provided for in Article 5.2 above.

• Reception

Reception by the Customer shall take place at the place of delivery indicated in the Order Form for the purpose of verifying the compliance of the Sensors with the Order.

A delivery slip is attached to the package for any shipment of Sensors.

If the Customer finds, at the time of delivery, that the packages containing the delivered Sensors or the delivered Sensors themselves have been damaged by the authorized carrier, the Customer shall have the right to refuse the Sensors contained in said package and shall notify the authorized carrier in writing within forty-eight (48) hours following their receipt (hereinafter the “Claim Period”).

In the absence of a reservation made within this period, the Sensors will no longer be subject to the procedure for claiming against the carrier, as described above, and will then be considered accepted without reservation by the Customer.

The Customer shall remain solely responsible for the choice of the Sensors, the adequacy between the Sensors and the results it expects from them.

When HEYLIOT sells Sensors that it does not install on the Site, the Customer or third party installer, professional or not, will act under its sole responsibility.

In the event that the Customer notices a defect in the quality and/or conformity of the Sensors delivered by HEYLIOT with respect to the Order, the Customer must transmit to HEYLIOT, in writing and within the claim period, a request for exchange or return of the Sensors, which must be accompanied by the results of its own investigations.

Upon receipt of this request, HEYLIOT undertakes to proceed, within a reasonable period of time, to study the admissibility of this request, if necessary by carrying out any investigation and/or verification that appears necessary, including on the site and/or any warehouse of the Customer. At the end of this period, if HEYLIOT considers the Customer’s request to be justified, it will confirm to the Customer, in writing, its acceptance and the handling of its claim.

No return of Sensors will be accepted if it has not been the subject of an express and prior agreement from HEYLIOT. Returned Sensors must be in perfect condition, must be returned in their original packaging or wrapping with the original barcode label, if applicable, and must not show any sign of use and/or processing.

Any return accepted by HEYLIOT will result, according to its convenience, in replacement or a credit note for a subsequent purchase, after qualitative and quantitative verification of the returned Sensors, to the exclusion of all damages for any reason whatsoever.

In all cases, once the final reception of the Sensors is pronounced, the sums relating thereto will become immediately payable by HEYLIOT.

• Installation

The Customer, or one of its subcontractors, will proceed to the fixing of the Sensors on the equipment in question in accordance with the instruction manual provided as well as the installation recommendations given by HEYLIOT. However, the Customer may, if it so wishes, ask HEYLIOT for training in the installation procedure of the Sensors or request the installation of the Sensors by HEYLIOT, which will be the subject of a separate service.

• Order cancellation

The Customer’s Order irrevocably expresses its full and complete consent. Once accepted, the Customer will not be able to cancel the Order, unless HEYLIOT has given its express prior consent.

Consequently, if the request to cancel the Customer’s Order is received by HEYLIOT before HEYLIOT has sent its Order Confirmation, the Customer will, with the agreement of HEYLIOT, be released from all obligations arising from this Order.

Any cancellation of the Order by the Customer must be requested to HEYLIOT in writing in accordance with the Notification system of Article 15 hereof.

Finally, HEYLIOT reserves the right to cancel any Order from a Customer with whom there is a dispute over payment of a previous Order.

• Cancellation of the Order

Either Party may terminate the Order by operation of law in the event of non-performance of any of the obligations incumbent on the other Party after formal notice, by registered letter with acknowledgement of receipt, which shall remain without effect for a period of ten (10) days from its receipt.

The Order may be terminated by the Customer, in accordance with the terms and conditions set forth above, in the event of delivery of Sensors that do not comply with the declared characteristics. In this case, the Customer may demand reimbursement of the payment made with the Order, plus interest calculated at the legal rate from the date of collection.

The Order may be terminated by HEYLIOT, without prior formal notice other than that provided for in the preceding paragraph, in the event of :

– Refusal by the Customer to accept the delivery of the Sensors under the conditions defined in Article 6 hereof;

– of non-payment of all or part of the price (or the balance of the price) at the time of its due date.

In these two cases, the payment remains due to HEYLIOT by way of compensation.

Termination by a Party in application of this clause does not affect its right to claim damages.

Any payment obligation arising from a sale of Sensors made or in progress prior to the termination shall be paid by the Customer as soon as possible after said termination, including in the event that the final acceptance of Sensors has not been pronounced by the Customer. If necessary, in order to facilitate the accounts between the Parties, a report on the status of the sales made will be established by HEYLIOT and a copy will be given to the Customer.

• HEYLIOT’s commitments

Within the framework of this Agreement, HEYLIOT undertakes that the Sensors are manufactured in accordance with the quality standards and norms applicable to its sector of activity and that they comply with all legal and regulatory provisions relating thereto.

• Commercial guarantee

HEYLIOT commits to a contractual guarantee of twelve (12) months from the reception of the Sensors by the Customer. The guarantee consists in the standard exchange of the Sensor being the subject of the guarantee whose defectiveness is established, within a maximum delay of one month as from the reception of the defective Sensor;

Moreover, any warranty is excluded for incidents due to force majeure or in particular in the following cases:

• normal wear and tear of the Sensor,
• damage or accidents resulting from negligence, lack of supervision,
• Non-compliance with the maintenance, installation and storage prescriptions of the Sensors indicated by HEYLIOT in the Documentation, the rules of art in force in the customer’s profession, the periodic inspections recommended by HEYLIOT or by the regulations,
• Improper installation and/or negligence during the installation of the Sensors,
• use of the Sensors in a manner not conforming to HEYLIOT’s indications contained in the Documentation,
• any intervention by the Customer or a third party on the Sensor not authorized by HEYLIOT: modifications, repairs, addition of non-original spare parts or rework without the express agreement of HEYLIOT.

• Price

Unless otherwise stipulated in the Order Confirmation, the full price of the Sensors as set forth in the Order Form shall be payable at the time of the Order, unless otherwise agreed by the Parties in the Order Form.

HEYLIOT may, between each Order and at its sole discretion, modify the prices of the Sensors in order to take into account changes in the prices of raw materials necessary for manufacture, changes in the prices of its suppliers, competition or the cost of manufacture of the Sensors.

• Terms and Conditions of Payment

The price due by the Customer under Article 9.1 hereof will be invoiced at the time of the Order Confirmation or according to the payment schedule set by HEYLIOT at the time of the Order Confirmation. They are payable by the Customer, net and without discount, within thirty (30) days from their date of issue in accordance with the terms and conditions of payment indicated by HEYLIOT in the Order Confirmation.

• Penalties for late payment

In the event of late payment and payment of the sums due by the Customer beyond the deadline set by HEYLIOT on the Order Form, any delay in payment will result in the application of a fixed recovery indemnity, the amount of which is set by decree, as well as daily late payment penalties corresponding to the rate applied by the European Central Bank during its last refinancing operation increased by TEN (10) points, calculated on the amount, including all taxes, of the balance of the price appearing on the Order Confirmation or on any invoice. The said sums will be automatically and by right acquired by HEYLIOT, without any formality or prior formal notice, and will be applicable without prejudice to any other action that HEYLIOT may be entitled to take against the Customer in this respect.

In the event of non-compliance with the terms of payment set forth above, HEYLIOT reserves the right to suspend or cancel the delivery of the Orders in progress emanating from the Customer.

In addition, the non-payment of an invoice on its due date automatically leads to the forfeiture of the term and makes the payment of other invoices immediately due, even if they have given rise to drafts already in circulation. A delay in payment of more than thirty (30) days will be likely to lead to the cancellation of the delivery of the Orders in progress, without compensation from HEYLIOT, the balance due by the Customer for the Sensors manufactured remaining payable by HEYLIOT.

All information, data, documents of any nature communicated by one of the Parties to the other for the purposes of the Contract, whether orally, in writing or electronically, and including, without restriction, any concept, industrial strategy, marketing plan, meeting minutes, memorandum, analysis, model, drawing, prototype, sample, model, improvement, enhancement, development, methodology, trademark, software, software package, know-how, whether or not such information is protectable under intellectual and industrial property law, shall be considered confidential.

Information that is not specifically designated as confidential shall be treated as such when it can reasonably be considered that it provides a Third Party with a financial or competitive advantage or when its disclosure may constitute a financial loss for any of the Parties present. Neither Party shall be liable for the illegal acts of Third Parties or any other acts beyond its control that may result in breaches of the obligation of confidentiality.

The Party that receives Confidential Information (hereinafter referred to as the “Receiving Party”) from another Party (hereinafter referred to as the “Providing Party”) undertakes to keep such Confidential Information:

a) be protected and kept strictly confidential and be treated with the same degree of care and protection as it accords to its own Confidential Information of the same importance,

(b) be communicated only to its employees, affiliates or subcontractors who have a need to know for the execution of the Project and subject to the same obligations of confidentiality as those arising hereunder. In any event, the Recipient Party shall remain liable to the Issuing Party for compliance by any person to whom it transmits Confidential Information, and in particular by its Affiliates and subcontractors, with all the obligations provided for in this Article.

c) are used by the said persons referred to in b) above only for the purpose defined by the Agreement,

(d) be copied, reproduced or duplicated in whole or in part only for the purpose of carrying out the Project

(e) is not decompiled (“reverse engineering”) in whole or in part when such decompilations have not been authorized by the Issuing Party in writing.

However, the obligation of confidentiality does not apply to the information:

(i) which was known to one of the Parties, without obligation of secrecy, prior to its transmission by the other Party ;

(ii) which is obtained from Third Parties by one of the Parties in a legitimate manner;

(iii) is independently developed by one of the Parties;

(iv) which are or become publicly available, without any breach of the commitments made by each of the Parties under the Agreement; and

(v) are reasonably disclosed to employees, suppliers or others for the performance of this Agreement;

(vi) are reasonably disclosed to professional advisors;

(vii) must be disclosed by law or competent authority.

The Parties shall have any external service provider companies that may be assigned to carry out their obligations sign a confidentiality undertaking guaranteeing the application of this Article. Each Party may request a copy of these undertakings from the other Party.

The Parties undertake to obtain confidentiality agreements, concerning the confidential information defined above, from members of staff who may have knowledge or who may have knowledge in the course of their duties or by any other means.

The provisions of this Article shall remain in force for FIVE (5) years following the communication of the confidential information or the early termination of the Order.

In particular, all intellectual and industrial property rights associated with the design of all Sensors, the means implemented to achieve this design, as well as all results resulting from this design, and all HEYLIOT trademarks associated with it, are the exclusive property of HEYLIOT.

The Customer acknowledges and accepts that, unless otherwise stated in these GCS, it does not acquire any rights to these elements belonging to HEYLIOT.

The Customer specifically and expressly refrains, with regard to the software or hardware elements associated with the Sensors, from analyzing the said Sensors with the aim of reverse engineering, or to show, give or sell these elements to a Third Party.

• General

The liability of one Party with respect to the other may only be sought in the event of a proven contractual breach committed in or during the performance of the services for which it is responsible under the Contract.

Neither Party may be held liable for indirect damages, financial losses or operating losses suffered by the other Party or its customers as a result. Consequently, the Parties waive recourse against each of them and against their insurers beyond these limits, both in kind and in amount, and undertake to have their own insurers waive recourse beyond the same limits.

It is expressly agreed between the Parties that the Sensors provided by HEYLIOT are only tools to assist the analysis and/or research work of the Customer and that consequently, HEYLIOT cannot be held responsible for the failure of an operation launched by the Customer on the basis of observation results obtained by their use.

If, however, the responsibility of one of the Parties were to be held liable before the courts, the other Party could only claim other indemnities and damages or any settlement whatsoever, for all reasons, up to the amount of the payments made by it under the Order.

Unless otherwise provided herein, neither Party shall have any claim against the other Party after a period of two (2) months following the discovery of the event (or events) that gave rise to the potential liability.

• Limitations

In general, the Customer acknowledges that HEYLIOT cannot be held responsible and that it will be the only party responsible in all cases of use of the Sensors in a manner that does not conform to the rules and practices applicable to this sector of activity and/or to any recommendations made by HEYLIOT, in particular in the Documentation that it provides to the Customer.

In particular, HEYLIOT cannot be held liable in the following cases, without this list being either restrictive or exhaustive:

Use of computer equipment or any other equipment not conforming to the prerequisites indicated by HEYLIOT;

Modification of the Sensors following a transformation of their original state due to the Customer;

Different, erroneous or contrary use of the Sensors by the Customer compared to the destination indicated by HEYLIOT, in particular within the Documentation;

Damage to the Sensors following storage by the Customer, in unsuitable conditions and/or not in accordance with HEYLIOT’s recommendations, as indicated in particular in the Documentation;

Inappropriate, improper, dangerous handling of the Sensors by the Customer, taking into account the recommendations made by HEYLIOT, in particular those included in its Documentation ;

Damage having a cause external to the Sensors or due to a case of force majeure;

virus contamination of the Customer’s data and/or tools and/or software and/or equipment, the protection of which is the responsibility of the Customer;

malicious intrusion by Third Parties or data piracy, despite the reasonable security measures in place.

In addition, the availability of Third Party systems (in particular operators etc.) is notably limited by technological and environmental factors likely to impact data transmission. The functionalities of the Sensors may therefore be limited or temporarily unavailable without notice. HEYLIOT cannot be held responsible for any malfunctions and interruptions related to these third party solutions.

Each of the parties is informed that the other party is likely to collect, within the framework of their contractual relationship, certain personal data concerning them and in particular those relating to the interlocutors and/or employees involved.

In this sense, HEYLIOT may collect personal data concerning the Customer and/or its personnel, intended exclusively for the execution of the Orders.

Each Party undertakes to ensure an appropriate level of protection of the other Party’s personal data, in accordance with the General Regulations on the Protection of Personal Data (RGPD).

The personal data collected shall not be transmitted to third parties under any circumstances, except in cases where their communication is strictly necessary for the management and smooth running of the contractual relationship.

Personal data is kept by the Parties for the duration of their contractual relationship and for a maximum of three (3) years after its termination. If necessary, certain personal data may be retained by the Parties for a longer period of time, in cases strictly necessary for the fulfilment of legal obligations, such as tax and/or accounting obligations.

In accordance with the General Regulations on the Protection of Personal Data (RGPD), the Parties have a right of access, rectification, opposition, portability, limitation and deletion relating to personal data concerning them.

The Customer and its personnel may exercise these rights by contacting HEYLIOT at contact@heyliot.com.

Each Party also has the right to file a complaint with the competent authority, the CNIL, if it considers that the other Party is unlawfully processing its personal data.

Each of the Parties may not be held liable for a breach of any of its obligations resulting from the occurrence of a case of force majeure, such as those usually retained by French case law, provided however that the Party invoking such a case immediately notifies the other Party by e-mail or fax confirmed by registered letter with acknowledgement of receipt. It is understood that the two Parties may only invoke force majeure for the duration of its effect. They undertake to make every effort to limit its consequences as much as possible.

The case of force majeure suspends the obligations arising from the Order for the entire duration of its existence. However, if the case of force majeure lasts for more than sixty (60) consecutive days, it shall give rise to the automatic termination of the Order by either Party without compensation on either side.

In this case, the Customer undertakes to pay HEYLIOT for all Orders placed up to the effective date of termination.

Except in cases where a stipulation in this contract provides otherwise, it is the express agreement of the Parties that exchanges between them may take place by any means, in particular by e-mail to the e-mail addresses mentioned in their correspondence, invoices and/or Purchase Orders, or in any other document.

The Parties agree that printing an e-mail on paper is valid proof of the content of the exchanges.

The Parties shall implement all security measures to guarantee the availability, integrity and confidentiality of e-mail files sent via the Internet.

At the same time, they shall implement all useful measures, such as firewalls and antivirus software that are regularly updated and correctly configured, to protect themselves as effectively as possible against intrusions, attacks and the spread of viruses in order to guarantee the availability, integrity and confidentiality of e-mail files received.

The Parties shall safeguard by the most appropriate and secure means possible the entirety of the messages transmitted relating to the subject matter of this Agreement.

If one of the clauses of the Agreement is found to be null and void with respect to a rule of law in force or a court decision that has become final, the other clauses will remain in effect.

The fact that a Party does not avail itself of a right does not constitute a waiver of that right

No waiver of any provision of the TOS shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and the failure of HEYLIOT to assert any right or provision under these terms shall not constitute a waiver of such right or provision.

These GTC are subject to French law.

HEYLIOT and the Customer will make every effort to resolve amicably any disputes that may arise relating to the validity, interpretation or execution of the present terms and conditions.

The Commercial Court of RENNES will have exclusive jurisdiction to hear any dispute relating to the execution and/or interpretation of the GCS, including in the event of appeal in guarantee and plurality of defendants.

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