General Terms and Conditions of Sales and Services
POLLEN AM, herein after «Pollen AM», is the designer of an Additive Manufacturing equipment (hereinafter the «PAM System»)
The PAM System, is composed of:
- a material component corresponding to the system, mechanical, computer system and electronic;
- a software component including a piloting program (hereinafter «Honey Print Software»);
- 4 materials cartridges;
- related documentation (hereinafter «User’s Manual») being understood that each PAM System is furnished with an electronic version of the User’s Manual.
Each PAM System contains specifications detailed in a statement of work remitted by Pollen AM to the Client and attached to this AGREEMENT (hereinafter «Functional and Technical Statement of work».)
Within the context of its business activity, the Client seeks the use of equipment enabling it to proceed to independent prototyping production, technical parts production, aesthetic and/or functional production and thus desires to use the PAM System.
The General Conditions and their Attachments can be completed by the Specific Conditions executed by the Client and by the Financial Quote to which they refer, these documents constitute the entire agreement between the Parties (hereinafter the «Agreement»). In case of conflict between these documents, the Specific Conditions supersede all other documents.
1. PURPOSE OF THE AGREEMENT
The purpose of the AGREEMENT is to determine the conditions under which POLLEN AM shall, in consideration of remuneration as provided in the Financial Quote:
- provide the Client with the quantity of PAM Systems it has ordered;
- grant to the Client the right to use the Honey Print Software;
- and where applicable, if provided by the Specific Conditions and/or in the Financial Quote, furnish the Client with training services, extensions of warranties, maintenance and other services such as may be described in the General Conditions herein (hereinafter «Services»).
2. PROVIDING PAM SYSTEMS
2.1. Providing modalities
The PAM System is furnished to the client as a sale.
The Client’s placement of an order for a PAM System constitutes acceptance of the terms and Conditions of the AGREEMENT, notwithstanding any contrary clause or condition that may appear in the Client’s commercial documents.
Given the specificities of the products at hand and the conditions under which they are manufactured, all orders are considered only upon Pollen AM’s express acceptance that indicates the quantities that it is able to deliver as well as the delivery schedule.
Pollen AM will use its best effort to maintain the delivery schedule indicated upon its express acceptance of the order. Nonetheless, in case of a delay of less than eight (8) months after the agreed delivery schedule, the Client shall not be able to request any indemnification nor cancel its order.
2.3. Shipping and Delivery
The PAM Systems are sold «FCA»: the Client bears the cost of transportation, insurance and packaging. Once the system is taken by the carrier, the Client is the owner of the system.
The Client may designate a shipping company operating for its account that will disclaim Pollen AM. Upon Client’s request, Pollen AM can offer services, which rates include packaging, shipping, insurance, and customs charges. According to the level of service provided by Pollen AM to ship the PAM system, the transfer of ownership will happen as soon as the aforementioned service is over.
No recourse shall be available against Pollen AM, the forwarder, or shipper for losses, for damages suffered by the PAM Systems if a report, irrefutably evidencing such, has not been sent to the shipper, or forwarder within a maximum delay of two (2) days and formal notice has been given to Pollen AM within the same time period.
The address stated on the purchase order shall be the definitive address to which PAM Systems, ordered by the Client, are delivered. Any change of address may generate a modification of proposed delivery rates.
2.4 Acceptance – Operational set up
The Client shall carry out the operational set up of each PAM System according to the specifications contained in the User’s Manual. Pollen AM will not assist the Client with operational set up unless the latter has subscribed to this service in consideration of remuneration as detailed in the Financial Quote.
The Client shall have eight (8) days as from the date of delivery of the PAM System to address to Pollen AM, by certified mail with return receipt or by hand delivery, the Certificate of Acceptance attached to the AGREEMENT (hereinafter «Certificate of Acceptance») which shall indicate Client’s reservations and comments regarding the PAM System’s functioning since its placement into service. Pollen AM’s receipt of the duly signed Certificate of Acceptance, whether containing reservations or not, signifies that the Client has accepted the PAM System.
The Client shall designate among its personnel a technical leader responsible for all questions related to the use of the PAM System (hereinafter, «Client-PAM Technical Leader»), whose contact information shall be set forth in the Certificate of Acceptance.
Failing return of the Certificate of Acceptance within the stated timeline, the PAM System at issue is considered to have been accepted without reservation, and the Client-PAM Technical Leader will be the AGREEMENT signatory.
Pollen AM shall use its best efforts to take into consideration the comments and to resolve the difficulties mentioned by the Client on the Certificate of Acceptance as the case may be, within a timeline of six (6) months as of the date of POLLEN AM’s receipt of the Certificate of Acceptance.
3. USE OF HONEY PRINT SOFTWARE
3.1. Rights of use granted
Pollen AM grants the client the non- exclusive and non transferable rights to:
- use the Honey Print Software on PAM Systems operated by the Client;
- use the Honey Print Software according to the instructions provided in the User’s Manual.
3.2. Access to Honey Print Software service
The services being offered on the Internet, to access it, the Client must have an Internet connection. All costs of telephone connections and Internet access are at the Client. Pollen AM is not liable for damage that the Client may suffer from the use of an Internet connection or malware installation on the Client’s computer.
To access the Services, the Client must create a Pollen AM account (hereinafter the «Account»). The Customer can create an account from the inserts provided for this purpose on the websites of Pollen AM (hereinafter the «Sites»), located in the «Create Account» headings.
3.3. Back up copy and transfer of right to use
Any other reproduction of the Honey Print Software, whether complete or partial is strictly prohibited.
Any use of the honey Print Software that has not been expressly provided for under this AGREEMENT is prohibited, including:
- any installation or use on a server other than the Authorized Server(s) identified in the Specific Conditions;
- any use, modification, adaptation, translation, or arrangement of the Honey Print Software;
- any decompilation, reverse engineering, or disassembly of the Honey Print Software, whether complete or partial other than as legally provided for at the time;
- any grant, transfer, lease, supply, communication with third party, whether complete or partial, for consideration or for free, of the Honey Print Software or of any rights granted under this AGREEMENT;
- any merging, even partial of the Honey Print Software with any other program.
It is expressly agreed that the Client is prohibited to correct any abnormality whatsoever, Pollen AM reserving to itself this right.
4. DATA COLLECTION
Given the innovative nature of the PAM system and the maturity of the technology, Pollen AM reserves the right to collect certain information related to the use of PAM System by the Client (3D models printed by the PAM system, settings used to parameter PAM, etc.). Pollen AM may use this information for any purpose, including improving the performance of the PAM System.
The PAM System warranty duration is one (1) year as of the date of Pollen AM’s receipt of the Certificate of Acceptance, the Client shall receive the following services for free (hereinafter «Warranty»).
The Client shall receive remote assistance by telephone or e-mail, Monday to Friday from 10AM to 5 PM GMT + 1.
The telephone number will be communicated to the Client upon delivery of the PAM System.
As part of this remote assistance, Pollen AM will provide the Client with the requested explanations for the use of the PAM system and its optimal tuning. The amount of time for this remote phone assistance is limited to five (5) hours in total and forty-five (45) minutes per call.
5.2 Remote access
At the acceptance of the PAM System the Client has the possibility to accept or deny the remote access of the PAM System by the support team for check-up and repair. This remote access allows getting a full access to the Client data and parameters. All the data and parameters are kept confidential and can’t be used for any different purpose than check- up and repair. The Client is informed each time a PAM system is remotely accessed by the support team. The data remains the property of the Client.
5.3. Product Failure Diagnostic
Pollen AM shall put forward all means necessary to conduct a diagnostic of product failures of the PAM System in the shortest timeline possible as of the date of written notification of said failure by the Client.
The diagnostic of the product failure thus notified shall be conducted, remotely over the phone based on the Client-PAM Technical Leader indications, as determined by Pollen AM according to needs observed, at the site of installation of the PAM System, or the Pollen AM premises.
Pollen AM shall communicate to the Client the diagnostic results it obtains.
5.4. Product Failure Repair
Based on its diagnostic, Pollen AM shall attempt to remedy the diagnosed product failure. To this effect, the necessary interventions shall be, remotely over the phone based on the Client-PAM Technical Leader indications, as determined by Pollen AM according to needs observed, at the site of installation of the PAM System, or the Pollen AM premises.
No component of the PAM System shall be returned to Pollen AM without the latter’s prior written approval. In any event, such a return can only be made of PAM System components that have not been modified or altered, and must be made in the original packaging. The transportation and restocking costs shall be borne by the Client.
5.5 Replacement in case of Product
Pollen AM shall, during the validity of the warranty, replace components that may be defective. In no case shall the replacement be of the entire PAM System, nor shall it extend the warranty of the entire PAM System.
This warranty does not include, consumables or operating accessories, the cost of which is borne by the Client.
5.6. Software Failure
Pollen AM shall, during the validity of the warranty, use its best efforts to correct any Honey Print Software dysfunction the Client brings to its attention.
To this effect, Pollen AM shall conduct a diagnostic of the dysfunctions at issue remotely over the phone based on the PAM-Client Coordinator. Based on the results of this diagnostic, Pollen AM will implement the warranty either by re-installing the software or releasing a software «patch» according to a timetable to be determined by Pollen AM based on its development priorities.
Within the warranty’s framework, the Client has the right to upload all software «patch» upgrades, provided by Pollen AM, understanding that the «patch» upgrades do not add any new functions.
Not withstanding the provisions in force regarding the length of the Warranty, this right is extended to the Client until the release of a new n+2 version of the Honey Print Software («n» being the most recent version at date the Client acquires the PAM System) and at the latest during a period of thirty months as from the date the Client acquires the PAM System.
5.7. Warranty conditions
Where the Warranty is invoked, the eventual cost of shipment of material, travel of person, packaging, insurance and other costs pertaining to the intervention shall be borne by the Client.
The Warranty is applicable only to the extent that the PAM System has been exclusively manipulated by (Client or third party) personnel trained and certified by Pollen AM in accordance with article 6.1.
The Warranty does not cover replacement and/or repairs resulting from normal wear and tear of the machines, deteriorations, and accidents resulting from either negligence, from lack of supervision, maintenance or stocking, manipulation or use not conforming to User’s Manual.
Using materials from another supplier and/or using a printing profile not validated and communicated by Pollen AM does not affect the Client's warranty. However, if the failure or damage can be attributed to the use of a non provided material by Pollen AM and/or using a printing profile not validated and communicated by Pollen AM, the amount corresponding to the time and the equipment necessary for printer repair will be charged to the Client.
In no event shall the Warranty apply when Pollen AM notices, third party repairs or interventions.
The Warranty shall not convey the right to download new software versions of the Honey Print Software, but the right to the replacement of identical Honey Print Software acquired by the client.
At the end of the Warranty period, the Client may continue to receive the services provided in this article on condition that the Client subscribes to an Warranty and Maintenance extension contract as provided here below.
5.8. Warranty for options
Options may be available for purchase for each PAM Systems. The articles 5.1 to 5.7 apply for the options for the duration of the warranty of the PAM System.
The options added by the Client and not provided by Pollen AM and the consequences directly or indirectly related to their use are not covered by this warranty.
6. SERVICES PROVIDED
6.1. Training – Operational set up
Where the Client has elected to receive training, in consideration of remuneration provided for in the Financial Quote, Pollen AM shall train Client’s personnel under the following conditions:
- training is intended for the duration set out in the Financial quote, each training cycle being valid for up to three (3) persons simultaneously;
- training participants shall be subject to a confidentiality agreement intended to protect Pollen AM’s know-how;
- the training shall take place, at the Clients’ choice on its premises, those of Pollen AM or any other place it designates;
- at the conclusion of training, each participant shall receive a certificate of aptitude from Pollen AM upon condition that the participant attend and complete each training session and come to a good understanding of the materials.
The Client may also select to pay for specific assistance to carry out the operational set up of the PAM System or for additional training to use the PAM System. This assistance will be provided in consideration of additional remuneration as indicated in the Financial Quote and according to the conditions determined agreed upon by the Parties.
Training or assistance services provided for in this article that require Pollen AM personnel to travel to the Client site do not include transportation and accommodations which will be separately billed at cost to the Client.
6.2. Extended Warranty
Under the conditions provided for in the Specific Conditions as the case may be and under the condition that the customer subscribes the planned maintenance services and in consideration of remuneration indicated in the Financial Quote, the Client may continue, after the expiry of the Warranty period, to benefit from the services provided during the Warranty period, as described un Article 5 hereabove, (hereafter «Warranty Extension»).
6.2.1. Duration of the Warranty Extension
The Warranty Extension may subscribed to by the Client on the date the contract is signed.
The +1 year Warranty Extension is provided for a period of one (1) year as of the end of the period of Warranty.
6.2.2. +1 year Warranty contract Conditions
The +1 year Warranty Extension contract is subject to the same conditions as the Warranty as provided for in article 5, except that:
Pollen AM shall bear the cost of insurance, travel and components shipping as well as costs related to its mission.
The Client may subscribe a Warranty Extension for a maximum period of one (1) years.
Under the conditions provided for in the Specific Conditions as the case may be, and in consideration of remuneration indicated in the Financial Quote, the Client may subscribe to planned maintenance services as described hereafter (Hereafter the «Maintenance»):
- phone assistance;
- planned services provided during one control visit per year and including:
- complete verification of the heating / cooling system;
- the electronic check;
- complete verification of the output voltage of the power supply AC / DC;
- cleaning of internal components;
- complete verification of the extrusion system;
- complete verification of axis movement mechanics;
- replacement of defective components.
being understood that these services are provided by Pollen AM or its sub-contractors on Pollen AM’s site or on its sub-contractors’ site.
The purpose of the AGREEMENT is to determine the conditions under which POLLEN AM shall, in consideration of remuneration as provided in the Financial Quote.
he maintenance service is provided for a period of one (1) year from the date of subscription, which can be renewed upon its expiry.
6.4. Other Services
At the Client’s request, Pollen AM may provide any other service, including consulting, audit and/or maintenance. These services and their applicable rates shall be agreed upon by the Parties separately.
Pollen AM may suspend Services subscribed to under this article 6 in case of late or no payment of amounts due. In case of suspension of Service, and regardless of the length of suspension, the total amounts mentioned on the Financial Quote remain due to Pollen AM.
7.1. Providing the PAM System
The PAM System is provided to the Client in consideration of payment of the price indicated in the Financial Quote. The prices indicated in the Financial Quote do not include taxes and are this subject to the VAT, if applicable, at the rate in effect and any other applicable tax.
The Client shall pay the price indicated in the Financial Quote, pursuant to the following conditions:
Upon acceptance of the order, Pollen AM will submit to the Client a bill for a total of 100% of the amount due and owed as indicated in the Financial Quote, all taxes included, as advance payment for deposit. The Client shall pay this bill within eight (8) days from its issuance date.
The Parties expressly agree that the sale of the PAM System shall be perfected and title of property shall be transferred only upon the complete payment of the entire amount due and owed as indicated in the Financial Quote.
7.2. Services Provided
In consideration of the Services provided by Pollen AM under article 6 herein, the Client shall pay Pollen AM a remuneration as indicated in the Financial Quote pursuant to the following conditions:
Upon acceptance of the order, Pollen AM will submit to the Client a bill for a down payment for a total of 100% of the amount, all taxes included, for the Services subscribed to as indicated in the Financial Quote. The Client shall pay this bill within eight (8) days from its issuance date.
In case of default of payment of any bill by it due date, all amounts indicated in the Financial Quote shall be immediately due, regardless of any more favorable payment condition Pollen AM may have afforded the Client.
7.3. Late fees
Any delay in payment will result in the invoicing of a flat-rate allowance to cover the recovery cost of forty (40) euros (French Law of 22 March 2012 called «Simplification du droit») plus an amount corresponding to a rate of one and a half (1.5) times the legal rate in effect.
8. INTELLECTUAL PROPERTY
Pollen AM is the owner of all intellectual property rights related to the PAM System, and holds the necessary use and/or exploitation rights pertaining, as the case may be, to components (including Honey Print Software or other) required for its proper functioning.
The Client recognizes that the AGREEMENT does not confer to it any intellectual property right to all or any part of the PAM System, including but not limited to any improvements, developments, updates or other implementation or realization by the Parties, all titles to such intellectual property rights remaining with Pollen AM.
The Client warrants that it shall not infringe upon, directly or indirectly, Pollen AM intellectual property rights related to the PAM System. The Client shall not affect, decompile, disassemble or reverse engineer any component of the PAM System, outside of the confines expressly authorized by French law.
Pollen AM warrants that the PAM System is as specified in the Functional and Technical Statement of Work, for the Client’s use in accordance with the User’s Manual.
Pollen AM disclaims any responsibility for the use of the PAM System by the Client, its personnel or any third party that is not trained and certified by Pollen AM. Pollen AM further disclaims any responsibility for any use that does not comply with the User’s Manual.
Pollen AM does not warrant in any manner the adequacy of the PAM System for needs specific to the Client.
The Client understands the innovative nature of the technology related to the PAM System and expressly accepts the risks related to its use. To this effect, Pollen AM reminds the Client that functional performances of the PAM System are the results of experiments conducted on its premises. The performance results are to be used merely as an indication depending on conditions in which the PAM System is used.
The PAM System is used under the sole responsibility of the Client, and Pollen AM cannot in any manner be held liable to the Client or any third party for any damages in connection with the use of the PAM System, such as loss of exploitation, clients, commercial damages, loss of goodwill, loss of data and or files as well as any incident or indisposition that may occur in the course of use of the PAM System.
In any event, the amount of damages and interest that may be claimed against Pollen AM arising out of or in connection with this AGREEMENT in no way, shall exceed the amount received by Pollen AM from the Client under this AGREEMENT, for the providing of the PAM System or the relevant services, regardless of the nature of such claims.
10. COMMERCIAL REFERENCE
The Client expressly authorizes Pollen AM to cite its name orally or in writing, to reproduce its logo, and to publish pictures of the PAM system once installed at the client’s site, as a commercial reference as of AGREEMENT signature date.
Pollen AM expressly authorizes the Client to cite its name orally or in writing, as a technological reference.
11. IMPORT – EXPORT
Incoterms mentioned in financial quotation are ICC latest version.
The Client warrants it shall expressly conform to applicable international import/export regulations for materials if these are intended for: a military organism, an organism relating to nuclear armament, or the development of weapons of mass destruction, or an entity manufacturing these types of weapons.
The Client warrants it shall expressly conform to applicable international regulations of the import or export of embargo materials, notably those of the United States of America.
The Client warrants it shall inform Pollen AM prior to the purchase whether it is subject to these regulations, notably whether the Client intends to re-export materials towards a third country.
The sale will not occur unless and until written authorization is provided by Pollen AM and pertinent authorities of the country from which products originate.
Pollen AM shall be excused from all obligations and responsibilities in the event that the Client does not respect the authorization procedure described above.
Both Parties warrant that they shall not communicate the content of this AGREEMENT with any third party and further warrant that they will treat as strictly confidential all commercial, technical and financial information received from the other Party within the scope of this AGREEMENT unless otherwise agreed to in writing by this other Party.
This confidentiality clause is not applicable to requests from any administration, including tax or legal authorities that may make a valid request.
13. NOTIFICATION – INFORMATION
All notices provided by one Party to the other Party with respect to any of the provisions within this AGREEMENT shall be completed as specified in each applicable article of this AGREEMENT and, where not specified shall be confirmed by telecopy confirmed by certified mail with return receipt.
Notices shall be sent by each Party to the other at the address indicated in the Financial Quote.
Each Party shall inform the other in writing of any change of address.
14. FORCE MAJEURE
Neither party shall be responsible for any delay or failure to meet its contractual obligation if such a delay or failure is die to a cause or condition reasonably beyond their control; and not caused by their own negligence.
15. DIVISIBILITÉ :
If any of the conditions or terms of this AGREEMENT was considered illegal, invalid or unenforceable, that condition or term will be deleted without prejudice to the application of other provisions.
This AGREEMENT shall be governed by French law.
Any dispute arising out or in connection with the interpretation or execution of this AGREEMENT shall be submitted to the relevant tribunal within the jurisdiction of the Cour d’Appel de Paris, France.