Terms & Conditions
APPLICABILITY / SCOPE. All goods provided shall be governed by the terms and conditions set forth herein. Any modifications to these terms or to the scope of any order or project hereunder, shall be mutually agreed upon and set forth in an appropriate writing executed by both parties. Such writing shall clearly set forth the nature and extent of the change, and, if applicable, any adjustment in price associated with such change.
PRICING / PAYMENT. The price to be paid by Buyer shall be mutually agreed upon by the parties and set forth in an appropriate writing. Unless otherwise agreed to, such price does not include any state or local sales or use tax, duties or custom fees, freight and handling charges, or export crating costs. All payments shall be made in Euros without discount, payable as mutually agreed upon by the parties. Minimum billing amount is € 100. If the order is lower than 100 €, an additional administrative fee of 50 € will be invoiced. Only terms of payment appearing on our acknowledgment are valid, to the exclusion of all other terms of payment, in particular those appearing on the purchase order of the Buyer.
When paying by commercial bill, if this fails and is returned within 8 working days, all invoices become immediately payable. In the event of the Buyer financial situation is becoming critical, and/or cancellation of credit insurance and/or any other event indicating that payment of the deliveries is no longer guaranteed, ARCHEAN have the right to immediately demand an advance payment for any delivery whose order has or has not been confirmed. Expenses related to the payment and in particular bank charges are the responsibility of the Buyer. Amounts unpaid by the deadline will, from the date of the deadline, and without making a preliminary complaint, automatically carry a penalty equivalent to one and a half ( 1,5%) the legal interest rate. This penalty will accumulate with interest on arrears at the statutory rate, which will be payable after the Buyer receives a formal notice of complaint. ARCHEAN reserves the right to ask for compensation for any losses resulting from the delay of payment. The non-payment of just one invoice or commercial bill will immediately involve, and without sending a formal notice of complaint, the payment of all that Buyer’s debts and those of any companies or businesses which are affiliated to him / her. If this happens, ARCHEAN reserves the right to suspend or to cancel any orders in progress, and to repossess delivered goods, expenses to be paid by the Buyer, without prejudice to any other recourse, and with any previous payments by the customer being kept by us in the form of damages.
DELIVERY. Once ARCHEAN has confirmed acceptance of an order from Buyer, unless otherwise mutually agreed upon, all goods to be supplied hereunder shall be shipped ex-works factory in accordance with the applicable provisions of the latest INCOTerms. Title and risk of loss shall pass to Buyer upon ARCHEAN’ delivery of the goods to the carrier. ARCHEAN shall not be bound by any delivery requirements unless and until mutually agreed upon by the parties in writing.
ACCEPTANCE. (a) Buyer shall inspect all shipments of equipment or other goods within fifteen (15) days of receipt, and shall promptly notify ARCHEAN of any defects or non-conforming goods. The parties acknowledge that acceptance of any goods supplied hereunder shall be deemed to have occurred if Buyer fails to notify ARCHEAN of any such defects or non-conforming goods within thirty (30) days of the date of receipt.
WARRANTY. Equipment. ARCHEAN warrants for a period of one (2) years from the date of shipment, that any ARCHEAN equipment supplied hereunder shall be free of defects in material and workmanship, shall comply with the then-current product specifications and product literature, and if applicable, shall be fit for the purpose specified in the agreed upon quotation or proposal document. If (a) Seller’s goods prove to be defective in workmanship and/or material under normal and proper usage, or unfit for the purpose specified and agreed upon, and (b) Buyer’s claim is made within the warranty period set forth above, Buyer may return such goods to ARCHEAN’ nearest depot repair facility, freight prepaid, at which time they will be repaired or replaced, at Seller’s option, without charge to Buyer. The warranty period on any repaired or replacement equipment shall be one (1) year from the date the original equipment was shipped. In no event shall ARCHEAN’ warranty obligations with respect to equipment exceed 100% of the total cost of the equipment supplied hereunder. Buyer may also be entitled to the manufacturer’s warranty on any third-party goods supplied by ARCHEAN hereunder. The applicability of any such third-party warranty will be determined by ARCHEAN.
Even with a justified complaint, the goods shall only be accepted with our prior content and the Return Number provided buy ARCHEAN.
Warranty Periods. Every claim by Buyer alleging a defect in the goods provided hereunder shall be deemed waived unless such claim is made in writing within the applicable warranty periods as set forth above.
Limitations / Exclusions. The warranties herein shall not apply to, and ARCHEAN shall not be responsible for any damage to the goods supplied hereunder, to the extent caused by Buyer’s neglect, failure to follow operational and maintenance procedures provided with the equipment, or the use of technicians not specifically authorized by ARCHEAN to maintain or service the equipment.
Rotative mechanism (VHS/CD/DVD, cassette players etc.) warranty reaches one year except for batteries and material which unload itself. Any device or software from trade will apply constructor or editor's warranty.
OPERATIONAL AND MAINTENANCE PROCEDURES. Buyer acknowledges that any improper use, maintenance, or modification of the equipment provided hereunder, or use of unqualified maintenance or service technicians will severely impair the operational effectiveness of the entire communication system. Buyer hereby agrees to indemnify, defend and hold ARCHEAN harmless from and against any and all third party claims arising, in any manner, out of: (a) Buyer’s neglect of the equipment; (b) Buyer’s use of technicians not authorized by ARCHEAN to service the equipment; or (c) Buyer’s improper use or modification of the equipment or failure to follow the operational and maintenance procedures provided with the equipment.
LIMITATION OF LIABILITY / DAMAGES. In no event (even should circumstances cause the exclusive warranties and remedies set forth in the Warranty section to fail of their essential purpose) shall either party be liable for any indirect, incidental, special or consequential damages (including, but not limited to, loss of use, loss of anticipated profits, or damages arising from delay) whether such claims are alleged to have arisen out of breach of warranty, breach of contract, strict or absolute liability in tort, or other act, error or omission, or from any other cause whatsoever, or any combination of the foregoing.
CUSTOM EQUIPMENT OR SYSTEMS. Buyer acknowledges that any approvals and/or listings specified in ARCHEAN’ proposal are limited to the specific scope and application set forth in the proposal, and may not cover or apply to any custom or special equipment or services which are outside the scope of ARCHEAN’ proposal. ARCHEAN shall retain all proprietary rights in any and all technical data, designs or other information developed by ARCHEAN (and not provided by Buyer) in the course of designing, developing and/or manufacturing custom equipment or systems.
BREACH. In addition to any failure to comply with any other terms as set forth herein, the occurrence of any of the following events shall constitute a breach on the part of Buyer: (a) If Buyer shall become insolvent or make a general assignment for the benefit of creditors; or (b) If a petition under the Bankruptcy Act is filed by or against Buyer; or (c) If, at any time Buyer fails to fulfil its obligations under the terms and conditions hereof, or acts in such a manner as to endanger performance of such obligations; or (d) If ARCHEAN shall reasonably believe that Buyer will not timely fulfil its obligations or otherwise perform hereunder, and Buyer is unable to provide reasonable assurances that such timely performance will occur. Upon breach by Buyer, ARCHEAN may terminate this Agreement by giving notice to the Buyer. Such termination shall be effective immediately.
CONFIDENTIAL & PROPRIETARY INFORMATION. Buyer acknowledges that the information and processes utilized by ARCHEAN in the manufacture and supply of its products and systems are confidential and proprietary to ARCHEAN. Buyer agrees to treat as confidential and proprietary any such information or processes, including, but not limited to, design information or data, proposals, software, schematics, drawings, operational and maintenance manuals, testing procedures or other similar technical information (“Confidential Information”) provided by ARCHEAN in connection with the supply or installation of products or systems hereunder, and will, at a minimum, protect any such Confidential Information in a manner commensurate with the measures taken to protect Buyer’s own confidential or proprietary information. ARCHEAN retains all right, title and interest in all such Confidential Information, and Buyer shall not use or otherwise disclose to any third party any such Confidential Information except to the extent authorized by ARCHEAN in accordance with the terms and conditions set forth herein. Provided, however, that Confidential Information shall not include information which: (a) is or becomes publicly known through no wrongful act on Buyer’s part; or (b) is, at the time of disclosure under this Agreement, already known to Buyer without
restriction on disclosure; or (c) is, or subsequently becomes, rightfully and without breach of this Agreement, in Buyer’s possession without any obligation restricting disclosure; or (d) is independently developed by Buyer without breach of this Agreement; or (e) is explicitly approved for release by written authorization of ARCHEAN.
INTELLECTUAL PROPERTY RIGHTS. ARCHEAN retains any and all intellectual property rights in and to the equipment and/or information supplied hereunder (including, but not limited to, patents, copyrights, trademarks and trade secrets) (“Intellectual Property”). Buyer is not granted any interest, right or license with respect to any such Intellectual Property, except to use the equipment and/or information for the purposes for which it is specifically provided to Buyer in accordance with the terms and conditions hereof. ARCHEAN shall indemnify and hold Buyer harmless from and against all third party claims of infringement or alleged infringement arising out of Buyer’s use of any equipment or information supplied by ARCHEAN hereunder. Provided, however, that ARCHEAN’ indemnity obligation hereunder shall not apply to, and ARCHEAN shall not be responsible for, any claims to the extent arising out of Buyer’s modification of ARCHEAN’ equipment or information, or use of such equipment or information: (a) in combination with equipment or information not supplied by ARCHEAN, or (b) in the operation of any process or in any other manner inconsistent with the purpose for which ARCHEAN’ equipment or information were intended.
COMPUTER SOFTWARE. Subject to the terms and conditions set forth herein, Buyer is granted a non-exclusive limited license to use any software contained in the equipment supplied by ARCHEAN hereunder (“Software”). Buyer acknowledges that any such Software is protected by copyright laws and international treaty provisions and is proprietary in nature, and agrees not to duplicate such Software. Buyer agrees that it will not reverse engineer, decompile, disassemble or otherwise manipulate any portion of the Software, for any purpose whatsoever. Buyer further acknowledges and agrees that ARCHEAN retains all right, title and interest in and to the Software and Buyer agrees not to copy the Software or disclose such Software to any third party, not to allow the Software to be used on any equipment other than that of ARCHEAN and not to use such Software for any purpose other than that for which it was provided hereunder, without the express written consent of ARCHEAN.
INSURANCE. Each party shall provide and maintain at its own expense, such policies of insurance in such amounts as are appropriate and commercially reasonable for parties engaging in the type of activities contemplated by the projects entered into hereunder. Upon request, each party shall furnish the other with certificates evidencing the required insurance coverage.
ASSIGNMENT. The rights and responsibilities of Buyer as set forth herein, are personal to Buyer and may not be assigned or delegated without the prior written consent of ARCHEAN.
NON-WAIVER. The parties’ failure to demand strict performance or to otherwise enforce any rights hereunder shall not constitute a waiver of any rights hereunder. No claim arising out of a breach hereof may be discharged in whole or in part by a waiver of the claim unless supported by consideration and set forth in a writing signed by the waiving party. Any such waiver shall apply to the specifically identified claim only, and shall in no way constitute a waiver or discharge of any other prior or subsequent claim.
SUSPENSION BY BUYER. If any project or order for which ARCHEAN is to supply goods hereunder, is suspended by Buyer, for any reason other than a breach by ARCHEAN, ARCHEAN shall take all reasonable measures to cooperate with Buyer in rescheduling any planned or ongoing work, and in otherwise complying with the suspension instructions. Provided, however, that in the event of any such suspension which continues for a period of ninety (90) days, ARCHEAN shall be entitled to terminate that order, without any further liability or obligation there under. Provided, further, that ARCHEAN shall be entitled to prompt reimbursement from Buyer in accordance with Provision 22 below.
TERMINATION. If any project or order for which ARCHEAN is to supply goods hereunder, is terminated in accordance with the provisions of these terms and conditions, ARCHEAN shall be entitled to charge 25% of selling price to the customer who placed the order for standard equipment. As it relates to any specially-designed, non-standard equipment ordered, a 25% charge will be levied if cancelled prior to incurring related engineering, drafting, and production time. If engineering, drafting and production time has been incurred, 100% of the selling price plus additional costs incurred will be charged to the customer who placed the order. Additional costs incurred as a direct result of termination may include, but are not limited to, freight and storage charges, costs of labour, transportation, and accommodations for any required on-site technicians.
APPLICABLE LAW / DISPUTES. It is the expectation of the parties that any disputes arising hereunder will be amicably resolved by mutual agreement of the parties. Any dispute, involving the supply of goods which cannot be amicably resolved by the parties, shall be submitted to binding arbitration in accordance with the applicable rules and regulations of the Italian Arbitration Association. The substantive law of France shall apply to any such arbitration, which shall be conducted in Montauban, France.
FORCE MAJEURE. Neither party shall be liable for any failure or delay in its performance resulting from any cause beyond its reasonable control including, but not limited to, acts of God; acts or omissions of civil or military authority; fires; floods; unusually severe weather; strikes or other labour disputes; embargoes; wars; political strife; riots; delays in transportation; sabotage; or fuel, power, material or labour shortages.
INTEGRATION / MODIFICATION. Except as otherwise specifically set forth herein, these terms and conditions are intended by both Buyer and ARCHEAN as the final integrated expression of their agreement with respect to any projects or orders subject hereto. No additions to or modifications of any of the terms or conditions herein shall be effective unless set forth in a writing duly executed by both parties.
CONSTRUCTION. If these terms and conditions have been provided in response to an invitation to bid or other solicitation from Buyer, and the provisions set forth herein differ in any way from the provisions (if any) of Buyer’s invitation or solicitation, these terms and conditions shall constitute ARCHEAN’ counteroffer and shall not be effective as an acceptance unless Buyer assents to the provisions herein. If these terms and conditions constitute a counteroffer, acceptance hereof must be on the exact terms contained herein. Any additional, conflicting or different terms proposed by Buyer shall constitute a counteroffer by Buyer, and shall not be effective unless set forth in a mutually agreed upon writing executed by both parties