General terms of sale
IMPORTANT - NOTE TO CUSTOMER :
Please read these general terms and conditions of sale carefully before placing an order with MOTA. They constitute a contract between MOTA and the Customer, a legal entity to whom these terms and conditions apply, who has purchased Products as identified in the Contract, and define the terms and conditions of sale granted by MOTA to the Customer, as well as the rights and restrictions that the said Customer accepts, in full and without reservation, by placing an order with MOTA and/or using the results of the sale of the Products concerned. The customer may not place an order with MOTA or use the relevant Products if the terms of these conditions are not accepted and/or respected. In addition to the rights and restrictions imposed by these terms and conditions, any other indications or restrictions contained in the 2D drawing, heat sheets and validation drawing issued by MOTA, as well as the instructions for use or Product recommendations, govern the use of MOTA's Products and services and supplement these general terms and conditions of sale, which are incorporated by reference.
1 – SCOPE OF APPLICATION
MOTA (hereinafter referred to as "MOTA"), a simplified joint stock company with a share capital of 228,673.53 Euros, registered in the Marseille Trade and Companies Register under no. 352 729 982, whose registered office is located at Avenue du Douard, Zone d'entreprise des Paluds, 13400 AUBAGNE, represented by its current legal representative, specializes in the manufacture of industrial air-conditioning and refrigeration equipment or cooling systems.
Unless expressly agreed otherwise between MOTA and the customer, MOTA's sales are governed exclusively by these General Terms and Conditions of Sale (hereinafter referred to as "GTCS"), to the exclusion of all other documents such as, in particular, prospectuses, catalogs and commercial presentations issued by MOTA, which are provided for information purposes only and are only indicative. Similarly, the prices, information and characteristics given in catalogs, circulars, prospectuses, technical data sheets or other documents are given for information purposes only and cannot be considered as binding offers.
Consequently, placing an order for a service and/or the purchase of a Product sold by MOTA (hereinafter referred to as the "Product") implies the client's full and unreserved acceptance of these GTC, which prevail over any other document of any kind whatsoever, and in particular over the client's general terms and conditions of purchase, special terms and conditions, purchase orders, prospectuses, faxes and/or e-mails from the client, unless MOTA has given its express prior consent.
MOTA reserves the right to make any changes it deems necessary to the distribution of the Products at any time, in particular in connection with technical developments, the quality and composition of the Products or as a result of the regulations applicable to them, without these changes justifying any modification or cancellation of orders.
MOTA reserves the right to suspend or terminate the sale, in whole or in part, in the following cases
- in the event of force majeure as defined by jurisprudence and under the conditions of article 6.4 of these GTC.
- in the event of a breach by the Customer of any of its obligations under these GTCs or under the law if the Customer has not remedied such breach within eight (8) days following the sending of a written notice.
The general terms and conditions of sale and the applicable prices are those in force on the day of the order. MOTA reserves the right to modify these general terms and conditions of sale in whole or in part at any time.
In the event of a significant change in the economic conditions in force at the time of acceptance of the technical-commercial offer, which would make its execution abnormally expensive for MOTA, MOTA reserves the right to renegotiate the conditions of the said technical-commercial offer and to terminate it automatically in the absence of the customer's agreement.
MOTA's technical-commercial offers are valid for a maximum period of 30 days from the date of issue. Any deviation from any of these general terms and conditions must be expressly accepted in writing by MOTA. Such a deviation is only valid for the technical-commercial offer for which it has been accepted.
The fact that MOTA does not at any given time invoke any of the clauses of the general terms and conditions cannot be interpreted as a waiver of the right to do so at a later date.
The nullity of any of the clauses of these conditions will not affect the validity of the other clauses. For the purposes of these terms and conditions, "writing" shall mean any paper document, and any electronic or facsimile writing.
a) Product description
Products. MOTA designs and manufactures cooling systems for fishing boats, passenger boats, pleasure boats, vehicles, stationary engines, transmissions, and industrial applications.
The list is not exhaustive and may change depending on the customer's field of activity. MOTA reserves the right to change the technical specifications of the Products offered without prior notice while guaranteeing at least equivalent functionality and performance. No significant changes are made without the prior agreement of the customer.
Durability. Durability of Products shall be understood only as calculations of the theoretical life of the Products; MOTA's responsibility for durability is limited to providing a Product that passes the validation tests described in the validation plan signed with Customer.
Performance - All performance data should be understood as a calculation result and not as quantified performance validated by testing. These indications are therefore only indicative and relative. The yield is ap¬proximate and calculated on the theoretical basis of the Product and its components and cannot be taken as a reference for indemnities, penalties for non-performance - refusal of acceptance.
MOTA cannot be held responsible for Products sold on MOTA's websites if they do not meet the durability and performance criteria described in the Product description.
Test certificate. MOTA is not obligated to provide performance or safety tests and certificates unless specifically requested by the Customer and agreed to in writing by MOTA.
Packaging - The Products are delivered exclusively in MOTA packaging. If no special instructions are given, the packaging is prepared by MOTA, which acts in the best interests of the customer.
b) Terms of order
An order is understood to be any order from the customer for MOTA's products.
- All orders must be made in writing (fax, e-mail or letter). Orders are only definitive and the sales contract is only formed after MOTA has expressly accepted the order by sending the client an order confirmation by any written means (fax, e-mail or post); MOTA's acceptance may also result from the start of execution by MOTA. If MOTA fails to provide written confirmation within thirty (30) days of receiving the order, the order will be deemed to have been rejected.
- Orders given to or taken by MOTA's agents or representatives are only binding on MOTA if they have been accepted in writing by MOTA.
c) Cancellation or modification of order.
The order expresses the customer's irrevocable consent. It cannot be cancelled unless MOTA has given its express prior consent. In this case, the customer will compensate MOTA for all the direct or indirect consequences of the cancellation, in particular the costs incurred for specific equipment, design costs, labour costs, work in progress, stocks and supplies. In any event, any advance payments already made will be retained by MOTA.
Any change to the order (including, but not limited to, delivery times, quantities or Products) requested by the customer is subject to MOTA's express written acceptance and may result in a change to the prices agreed, of which the customer will be informed.
Orders confirmed by MOTA are firm and irrevocable. All orders confirmed by MOTA must be honoured by the customer, who will be obliged to take delivery of them.
d) Account opening requirements
MOTA reserves the right to make the opening of an account conditional on the customer obtaining accounting, financial and legal documents and, where applicable, guarantees, as well as a reservation of title clause or the granting of guarantees. In order to purchase the Products available on the MOTA websites, the customer must first open an account and fill in all the information requested.
e) Open Order.
An open order is defined as an order in which the Customer does not make a firm commitment on the quantity of Products or on the schedule of services or deliveries, and which must be followed by delivery calls. It is limited to a period of one (1) year unless otherwise agreed in the technical-commercial offer. The price and other conditions are based on the forecast quantities announced by the Customer. If the forecast quantities are not met within the time frame specified, MOTA may change these conditions and request compensation from the customer for supplies and other costs.
3 – PRICES – PAYMENT TERMS
Unless expressly agreed otherwise, the Product is sold at the price indicated in MOTA's technical-commercial offer during the period of validity, if any, as stated therein and, if not, for thirty (30) days. MOTA will therefore remain bound by the content of its technical-commercial offer during this period. Any order placed after the period of validity of the technical-commercial offer will be subject to MOTA's tariffs or price lists in force on the day of the order or, in the case of specific equipment, on the basis of a new offer.
Unless otherwise agreed, prices :
- are always in euros, exclusive of taxes and "ex works" (EXW - in accordance with Incoterms in force at the time of conclusion of the contract) ;
- do not include transportation, which is the responsibility of the Customer;
- are established in consideration of the quantities envisaged or agreed upon;
- do not include installation, assembly, dismantling ;
- specific controls for certain industries, which are not included in the prices stipulated in the estimates, proposals and invoices, and which will be subject to a specific additional price. More generally, specific controls, it being specified that the equipment is executed according to current technical knowledge and that the materials used are controlled according to the usual methods in force in the mechanical industries.
3.2. Price change
In the event of a change in circumstances that could not be foreseen when the Contract was concluded, in accordance with the provisions of article 1195 of the Civil Code, (in particular in the event of a change in the price of raw materials, a change in customs duties, a change in the exchange rate, a change in legislation), MOTA, which has not agreed to assume the risk of excessively onerous performance, may request a renegotiation of the Contract from the Client.
If the renegotiation is successful, the parties will immediately draw up a new order formalizing the result of this renegotiation for the Product sales operations concerned.
If the renegotiation fails, the Parties may agree, in accordance with the provisions of Article 1195 of the Civil Code, to terminate the Contract.
3.3. Payment terms.
Unless expressly agreed otherwise, the customer's orders are paid for in cash. Payment is made at MOTA's registered office. Any delay in payment of a due date will, at MOTA's discretion, result in the forfeiture of the contractual term, with all sums due becoming immediately payable. It is clearly agreed between MOTA and its customer that the start of the execution of the order by MOTA implies acceptance of the technical-commercial offer in its entirety by the customer, who will therefore pay the price on the agreed dates.
3.4. PAYMENT METHODS.
Payment is made to MOTA by credit card, cheque (subject to its being properly cashed) or bank transfer (subject to its being properly forwarded).
MOTA also reserves the right to demand guarantees and full payment for the Product at the time of delivery for any justified reason, particularly in the event of a deterioration in the customer's credit or financial situation.
3.5. Non-payment - Penalties - Resolutive clause.
In the event of non-payment, eight (8) days after a formal notice to pay sent by registered letter with acknowledgement of receipt has remained unsuccessful, MOTA may implement the following measures
3.5.1 Contractual penalties.
Any delay in payment will, at MOTA's discretion, lead to the application of interest on arrears equal to the most recent refinancing rate of the European Central Bank plus ten points:
- the application of late payment interest equal to the most recent refinancing rate of the European Central Bank plus ten points.
- the termination of the contract and the immediate demand for the balance of the price and the invoices on account, regardless of the supply to which they relate, and the possibility of no longer accepting new orders.
3.5.2. Allowance for recovery costs
In addition to the penalties, late payments will automatically incur a fixed penalty for collection costs of 40 euros (including VAT) from the first day following the payment date shown on the invoice.
If the collection costs incurred are higher than the amount of this fixed compensation, MOTA is also entitled to request additional compensation.
The client formally refrains from any practice consisting of automatically debiting or invoicing MOTA for sums for which he considers himself not responsible. Any withholding of payments constitutes an unpaid bill and will give rise to the application of the above provisions relating to late payment.
3.6. Modification of the Customer's situation
In the event of a deterioration in the client's financial situation, as certified by a financial institution and evidenced by a significant delay in payment, or when the financial situation differs significantly from the data provided by the client to MOTA, the terms of payment granted may be modified and delivery may only take place in return for immediate payment.
In the event of the sale, transfer, pledging or incorporation of the customer's business or a significant part of its assets or equipment, or in the event of non-compliance with payment deadlines or, where applicable, if the bill of exchange is not returned with acceptance within 15 days, MOTA reserves the right, without formal notice :
- to declare that the term of payment has expired, with late or non-payment of all or part of the price on the due date leading to the immediate payment of all sums still owed to MOTA by the customer, even if they are not yet due and whatever the method of payment,
- to suspend the execution of all current orders, to cancel all unpaid orders and to demand, in accordance with the provisions of article 8 entitled "Retention of title" of these GTC, the return of the goods sold, while retaining, as damages, the advance payments and other sums paid;
All other outstanding debts will become immediately payable, even if they are not yet due. Furthermore, MOTA reserves the right to change its payment terms and to demand guarantees for the execution of orders received before the customer's credit has deteriorated. In particular, MOTA reserves the right to make any new order subject to prior settlement of outstanding arrears and cash payment. The customer has no right to suspend or offset a payment for any reason whatsoever and even if a dispute is pending, in accordance with the provisions of article
Similarly, the customer is prohibited from making any deduction, for whatever reason, without MOTA's prior written consent.
As stated in article 3.6, the fact that MOTA invokes one or other of these provisions does not prevent the implementation of the retention of title clause, nor does it prevent MOTA from claiming a lump-sum compensation as a penalty clause.
4 – TRANSPORT - DELIVERY - TRANSFER OF PRODUCT RISK
4.1 Terms of delivery
Delivery is deemed to have taken place as soon as the goods have been made available at MOTA's premises, despite indications such as: free delivery at the station, on the platform, at home or reimbursement of partial or total transport costs. The risk in the goods is transferred to the customer as soon as the notification of readiness is given.
4.2 Delivery times
The delivery periods run from the date of final acceptance of the order by MOTA, subject to full payment. The starting point of these deadlines is also subject, where applicable, to MOTA's receipt of all the information required to begin execution of the order.
The delivery and performance periods communicated to the customer are defined in accordance with the schedule drawn up by the parties or referred to on the MOTA website at the time of the order
4.3 Delayed delivery
The delivery time is given as an indication and a delay cannot justify the cancellation of the order.
This time limit does not constitute a strict time limit and MOTA cannot be held liable to the customer for late delivery and no penalty will be charged.
MOTA is automatically released from any commitment relating to delivery deadlines if the payment conditions have not been observed by the client or if there is a case of force majeure as defined in article 6.4 hereof.
In the event of a change in the schedule caused by the customer, MOTA will be entitled to demand an additional charge for the changes and the resulting reorganization. A new schedule will be drawn up and the customer will not be entitled to claim any penalties from MOTA for postponing the delivery date.
If delivery is delayed by the customer for any reason whatsoever, beyond MOTA's control, MOTA may, after formal notice has been given and not complied with within a period of fifteen days, arrange for the Product to be packed, transported and stored - and possibly dismantled and reassembled - at the customer's expense and risk. These provisions do not affect the payment obligations of the order.
The customer must check the apparent condition of the Product on delivery. In the absence of reservations expressly expressed by the client at the time of delivery, the Products delivered by MOTA are in conformity in quantity and quality with the order.
Incomplete, insignificant or unclear reservations are not admissible. Thus, without this being exhaustive, the words "subject to unpacking" have no value.
The customer has 48 hours from the date of delivery and receipt of the Product ordered to express such reservations in writing to MOTA, particularly with regard to quantity.
Receipt of the Product by the customer implies recognition that the Product conforms to the order. MOTA must be notified in writing within a maximum of 48 hours of the discovery of a defect km "0" and within a maximum of 7 days of receipt.
When the Products are handed over to the Client by the carrier, the Client must carefully check the Products. Any reservation or claim related to the transport must be made in the legal form. It is the Customer's responsibility to make all necessary, precise and complete observations and reservations to the carrier, which he shall take care to date, before unloading in the event of loss or damage during transport, in particular on the various copies of the delivery notes.
In accordance with Article L.133-3 of the French Commercial Code, these reservations must be sent within three (3) days by registered letter with acknowledgment of receipt to the carrier whose name appears on the transport document. The customer must send a copy to MOTA within five (5) days of receiving the goods, failing which the claim will be barred. Any Product that has not been the subject of reservations by registered letter with acknowledgement of receipt within three (3) days of delivery to the carrier, and a copy of which is not sent to MOTA within five (5) days of receipt of the goods, will be deemed to have been accepted by the customer. Incomplete, insignificant or unclear reservations are not admissible. Thus, and without this being exhaustive, the words "subject to unpacking" or "subject to breakage" have no value.
Acceptance of the Product by MOTA without reservations upon delivery within the above-mentioned time limits shall imply waiver of any subsequent dispute by the Customer.
No goods may be returned without MOTA's consent.
No claim can be validly accepted if the customer fails to comply with these formalities.
MOTA will replace as soon as possible and at its own expense the Product delivered whose lack of conformity has been duly proven by the customer.
4.5. Risk transfer
Whatever the destination of the Products and the conditions of sale, the Products travel at the Customer's risk.
The transfer of risks takes place, notwithstanding the reservation of ownership clause as stipulated in article 8 of these terms and conditions, at the time of delivery to the carrier, even if the carriage is paid in advance by MOTA on behalf of the Customer or if the sale is carriage paid.
Transport costs are added to the price of the Products sold:
- if the conditions for free delivery are not met: by charging the cost of transport in advance at the end of the invoice.
- if the free delivery conditions are obtained, the amount to be paid remains that of the goods.
The "carriage paid" conditions are specified in the technical-commercial offer.
MOTA is entitled to make full or partial deliveries. Exceeding the delivery time cannot give rise to any compensation, deductions or cancellation of orders in progress.
Delivery is made on the date indicated in the order confirmation, by handing over the product either directly to the customer or to the carrier chosen by the customer or, failing that, chosen by MOTA.
5 – Warranty and liability
5.1 Warranty and liability exclusions
MOTA's liability is excluded in the following cases:
for wearing parts and consumables,
in the event of the use of materials other than the original materials of the Product, or materials from a supplier other than MOTA or from the customer or recommended by the customer
if the customer or a third party intervenes, repairs or reworks the Product without MOTA's prior consent
if the customer does not return the defective Product to MOTA for examination,
in the event of use of the Product that is unfit for its purpose, in the event of abnormal or atypical use or use that does not comply with the normal purpose of the Product or with the technical characteristics prescribed by MOTA and with the rules of good practice, or in the event of defective storage or conservation conditions caused by the Customer
in the event of negligence, lack of supervision, lack of maintenance or incorrect assembly of the Product,
in the event of unpaid invoices from the Customer, the latter not being able to take advantage of the refusal of guarantee to suspend or defer payments,
for damage caused to the Product by erosion, corrosion and cavitation.
The Products marketed by MOTA comply with French legislation as well as with European and French standards applicable to the Customer's order, to the exclusion of any other legislation or regulation. The customer expressly accepts that he is entirely responsible for expressing his needs and for choosing the Products acquired from MOTA and for using them in accordance with these.
5.2 Contratcual warranty
a) Defects and Products concerned. MOTA's warranty is to remedy any malfunction resulting from a defect in design, materials or workmanship (including assembly if MOTA is responsible for this), subject to the following provisions. The warranty covers only original MOTA branded equipment or equipment marketed by MOTA.
b) Duration and starting point. Unless otherwise agreed, the warranty only applies to defects that become apparent within six (6) months of delivery of the Product.
Replacement or remanufactured parts are warranted under the same terms and conditions as the original Product for the remainder of the warranty period mentioned in the preceding paragraph. In no event shall a change of part or component on an assembly or subassembly of the Product extend the warranty period of the Product.
c) Customer's obligations. To be able to invoke the warranty, the customer must notify MOTA in writing, at the latest within 48 hours of the occurrence of the defects he attributes to the Product, provide full proof of the reality of these defects, and give MOTA every opportunity to ascertain these defects and remedy them, in particular by returning the part in question for expert examination at MOTA's first request.
d) Methods of exercise. The warranty can only be exercised by supplying replacements for parts that MOTA has found to be defective, or, at its discretion, by repairing them in its workshops.
MOTA reserves the right to modify, if necessary, the Products or parts thereof in order to meet its obligations. The customer must make it easy for MOTA to detect and remedy such defects.
When MOTA considers that the repair must be carried out on site, the conditions for exercising the guarantee must be agreed, and in any case the preliminary or approach work or disassembly and reassembly operations made necessary by the conditions of use or installation of the Product and the elements not included in the supply in question will be at the expense of the Customer.
The cost of transporting the defective equipment or parts, as well as the cost of returning the repaired or replaced equipment or parts, shall be borne by the Customer, as shall the travel and accommodation costs of MOTA's employees or external service providers in the event of repairs at the place of installation. Any parts replaced free of charge will be returned to MOTA and become its property.
If, after an inspection or repair of the equipment in MOTA's workshops or at the place of installation, MOTA's responsibility is not recognized and the defect found is not attributable to MOTA and does not give rise to a warranty claim, MOTA is entitled to demand payment of compensation for all costs incurred, including the cost of personnel, transport and the replacement or repair of parts.
The customer may not claim compensation for any reason whatsoever, such as labour required for dismantling or reassembly, downtime or operating costs, transport costs, accommodation and travel costs or any incidents that may occur.
a) Definition. MOTA's liability is strictly limited to compliance with the expressly agreed contractual specifications. MOTA shall perform the service requested by the client in the order in accordance with the rules of the profession.
b) Limitations. Any guarantee other than those described in article 6.2 is excluded, and in particular no guarantee can be given that the Products are suitable for all the customer's needs and requirements, which is a matter for the customer's sole discretion. The Products are provided "as is" taking into account their operation and performance. The Customer has received all the necessary information from MOTA to enable him to know the Products well and to assess their suitability for his needs before ordering.
In particular, it is the customer's responsibility to carry out installation, compatibility and assembly studies prior to ordering. The operating characteristics of a system are the responsibility of the customer or the project manager. MOTA undertakes only to provide him with the information at his disposal that is necessary for his study.
The customer will be responsible for compliance with the rules in force, particularly in terms of noise, health and safety, even if a special Product is supplied to him at his request (whether or not accompanied by documents).
In all cases, MOTA will only guarantee that the Product complies with the specifications set out in the order acceptance or in an express letter of acceptance.
Similarly, any study accepted and undertaken at the request of the customer for the development of a special product will be invoiced.
In any event, the customer acknowledges and accepts that it is impossible to guarantee (i) that the Products will be suitable for all combinations that the customer may choose, particularly with non-approved equipment, (ii) that they will function in all equipment, and (iii) that they will be usable without interruption or defect, or that all defects can be corrected.
MOTA shall not be liable for (i) defects and/or alterations to the Products and the consequences that may result from Customer's improper use of the Products; (ii) improper intervention on the Products; and/or (iii) the use or assembly of the Products with an incompatible or non-approved third-party component or material.
MOTA excludes any obligation, express or implied, relating to the Products in terms of, but not limited to, use, performance or results, merchantability, satisfactory quality, fitness for a specific purpose or non-infringement.
MOTA is bound by a general obligation of means for all the Services it provides under these GTC. Under no circumstances will MOTA have any obligations or be liable for any damage other than proven direct damage attributable to it, within the following limits
MOTA cannot be held liable for any direct, indirect, special, incidental or consequential damage and any financial or commercial losses, whether foreseeable or not, and for any material or moral prejudice resulting therefrom (in particular, and without this list being exhaustive, loss of earnings, operating losses, loss of profits, loss of clientele, reduction of activity or interruption of activity) and claimed by the Customer or any third party, and resulting from the delivered Products, their use or the impossibility of using them, or from a breach of an express or tacit guarantee.
In any event, MOTA's total liability, except in the case of fraud or gross negligence, will be limited and may in no case exceed the amount actually received by MOTA for the Product that directly caused the damage. The limitations and exclusions of liability set forth herein apply to the fullest extent permitted by applicable law, regardless of the basis of liability asserted: contract, tort, strict liability, breach of warranty, equity or otherwise. To the fullest extent permitted by applicable law, no liability claim, regardless of its form, may be brought by the customer against MOTA more than one (1) year after the date of the event giving rise to the liability claim.
Similarly, MOTA, as a provider of intellectual services, is subject to an obligation of means with regard to the performance of the Service. MOTA cannot be held liable for any unachievable request. In any case, its liability is strictly limited, in the event of defective execution, duly proven, to the return of the non-conforming Services to the exclusion of the consequences of the use of the Services by the Client or third parties. The Customer waives any recourse against MOTA beyond this guarantee and guarantees MOTA against recourse by third parties in respect of the Services delivered.
5.4 Force majeur
Neither party shall be liable for its delay or failure to perform any of its obligations under the contract if such delay or failure is the direct or indirect effect of a force majeure event, such as
occurrence of a natural disaster
earthquake, storm, fire, flood, etc.
armed conflict, war, attacks
labor dispute, total or partial strike at MOTA or the customer
labor dispute, total or partial strike at MOTA or its subcontractors, service providers, transporters, postal services, public services, etc.
imperative injunction from the public authorities (import ban, embargo)
epidemic, pandemic, affecting MOTA, its own suppliers, subcontractors or service providers
operating accidents, machine breakdowns, explosions
the impossibility for MOTA to be supplied due to one of the events listed above,
Each party will notify the other party as soon as possible by registered mail with acknowledgement of receipt of the occurrence of a case of force majeure of which it is aware and which, in its view, is likely to affect the performance of the contract.
6 – INTELLECTUAL PROPERTY AND CONFIDENTIALITY
6.1 The Products sold by MOTA are protected by patents and/or by international laws and treaties on intellectual and industrial property. MOTA is the exclusive owner, at all times and in all places, of all rights, titles or interests concerning the Products sold. The customer acknowledges that all rights relating in particular to intellectual and industrial property, patents, trademarks, trade secrets, know-how, ideas, concepts and inventions, any interest, whether or not covered by applicable law, concerning the Products manufactured and sold by MOTA, including but not limited to any modifications, improvements, corrections, updates or new versions, belong to and remain at all times reserved to MOTA. If any suggestions, concepts or developments proposed by the customer are incorporated or taken into account in the Products manufactured and sold by MOTA, the customer hereby agrees to transfer and assign, free of charge, to MOTA any rights that he may claim. The customer undertakes not to directly or indirectly infringe MOTA's rights to the Products sold. The customer undertakes to keep MOTA's trademarks or any other distinctive sign on the Products or associated documentation and to refrain from any unfair behaviour towards MOTA.
The industrial and/or intellectual property rights relating to the Products manufactured and sold by MOTA are not sold under any circumstances. Only the right to use the Product is granted to the Client. These conditions define the conditions for granting the Client the right to use the Product and its associated documentation as described in an order and the corresponding invoice. Each order is deemed to constitute a separate right of use, conferring the right to use, according to the terms and conditions herein, the Product referred to therein. Subject to full payment of the price stipulated in the corresponding order, MOTA grants the Customer a personal, limited, non-transferable and non-exclusive right to use the Products covered by the said order solely for the Customer's internal and professional needs, which excludes any service on behalf of third parties. In any case, the right of use is personal to the Customer and may not be transferred or lent to other persons; any other use of the Products is strictly forbidden. Customer agrees not to, directly or indirectly (a) reproduce, alter, adapt, translate in any way, disassemble all or part of the Products or its documentation, create derivative works or competing Products from the Products, or reverse engineer, or attempt to discover the compositions, underlying ideas and other associated know-how; (b) modify the Products in any way; or (c) give, assign, rent, lease, loan, or otherwise transfer ownership of the Products or any portion thereof, by any means, to any person; or (d) use the Products on behalf of any third party.
6.2 Customer acknowledges that the Products constitute and incorporate documents (discussion reports, drawings, electronic data interchange.... The list is not exhaustive), information and/or results belonging to MOTA and which may have been exchanged with the Client, independently of the Product (hereinafter referred to as "Confidential Information"), in the course of negotiating or executing the contract, and which are the products of original creative efforts, trade secrets and high-value-added know-how that MOTA has developed, acquired or licensed by making substantial investments in research and development. The Client undertakes to treat the Information as strictly confidential and not to use it for its own purposes. Customer agrees not to remove or cause to be removed any proprietary or confidentiality notices. The placement of patent notices in the Confidential Information will not constitute publication or otherwise compromise its confidential nature. The Customer undertakes not to disclose all or part of the Confidential Information belonging to MOTA, or any other information that has been designated as confidential, to natural or legal persons or any other entity, with the exception of its employees authorized to use the Confidential Information solely in connection with the operation of the Products, provided that it undertakes to ensure that they comply with these conditions of use and confidentiality. The Client acknowledges that any unauthorized use or disclosure of the Confidential Information would cause MOTA, its clients and partners definite harm. The Client undertakes to inform MOTA immediately of any unauthorized use or disclosure and to take all available measures, at its own expense, to restore the situation and prevent them in the future. No license, even implied, is granted as a result of the disclosure of Confidential Information. Within fourteen (14) days of a written request from MOTA, the Customer undertakes to return any Information, including any copy belonging to MOTA, which is in the possession or control of the Customer. This confidentiality agreement will continue for the duration of these conditions and after their expiry for any reason whatsoever, and this (ii) for the legal period of protection of intellectual property rights, including its extensions, with regard to confidential information relating to intellectual property rights and (ii) for a period of ten (10) years with regard to all other confidential information.
7 - Reservation of ownership
MOTA retains ownership of the Products supplied until full payment of the price in principal and accessories has been made, regardless of the date of delivery of the Products.
Failure to pay on any of the due dates may result in the Product being reclaimed.
The Customer nevertheless assumes, as of the delivery date, the risks of loss or deterioration of the materials as well as the
as well as the responsibility for the damage that they could cause.
Any contribution to the cost of making the tooling that may be requested from the Customer shall in no way entail the transfer to the Customer of the ownership of such tooling, unless expressly agreed otherwise.
8 – RESUMPTION
Under no circumstances will MOTA be obliged to take back the Product. If he accepts, this will be on a commercial basis, for standard equipment, and not for specific equipment made to order or to specifications. A trade-in requires the prior written agreement of MOTA and can only be made for new equipment in its original packaging, and can only be made within 15 days of the delivery date. Returns must be made carriage paid and packaged with the delivery note number and may be subject to a discount determined by MOTA.
9 - EXPORT AND IMPORT CONTROLS
Some Products may contain technology and software that is subject to U.S. and European Union export control laws and the laws of the country to which they are delivered or used, including military or dual-use regulations, which may require export or import licenses.
The Customer shall be responsible for all rules governing the export of the parts incorporated in its Product and shall not be able to invoke force majeure or any other exonerating cause in the event of an import ban for such materials or their components.
The customer is obliged to inform MOTA in advance of the existence of such regulations when they are applicable to his Products and entail obligations for MOTA.
The Products may not be sold, leased or transferred to third parties or countries that are subject to restrictions, or that would use them for purposes of mass destruction or genocide.
MOTA will not be liable for any delays or other consequences due to the application of these regulations. The contractual deadlines are extended by the time required to obtain the necessary authorizations. In any case, the invoice must be paid in accordance with the terms of these GTC or the special conditions.
10 – Applicable law - Competent jurisdiction
The parties undertake to try to settle their disputes amicably before bringing the matter before the competent court.
All orders, sales and deliveries made between MOTA and the customer are governed by French law to the exclusion of the Vienna Convention on the International Sale of Goods and the rules relating to conflicts of law and jurisdiction. All disputes, disagreements or challenges that cannot be resolved amicably, relating to the formation, conclusion, validity, interpretation, execution, nullity, lapse, completion or termination of orders, sales or deliveries will be under the exclusive jurisdiction of the commercial court in the place of MOTA's registered office, even in the event of summary proceedings, appeal for guarantee, incidental claim or multiple defendants, regardless of the agreed places of payment or delivery, without the jurisdiction clauses that may exist on the client's documents being an obstacle to the application of this clause.
In case of differences of interpretation between a text in French and a text in a foreign language, the French text will prevail.