GENERAL TERMS AND CONDITIONS OF SALE

1. Scope

In accordance with Article L.441-1 of the French Commercial Code, these GTC constitute the sole basis of the commercial relationship between ACOREL and its Customers. Sales by S.A.S. ACOREL are governed solely by the conditions set out in these general terms and conditions of sale. No other condition or document shall be binding on the Parties unless agreed in writing between them. Any order placed by the Customer entails full acceptance of these conditions. No addition to or amendment of these conditions shall bind ACOREL without a written and signed agreement. These general terms and conditions of sale take effect when the Customer places an order.

In the event of any conflict between these GTC and any other contractual document, the order of precedence shall be as follows: (1) the Contract or purchase order signed between the Parties, (2) these GTC, (3) ACOREL’s technical specifications and quotation, (4) the Customer’s General Terms and Conditions of Purchase.

2. Price – Payment

2.1 Prices quoted by ACOREL are ex works, EXW Saint-Péray, Incoterms® 2020, for sales of equipment alone, unless a different Incoterm or delivery arrangement is expressly stipulated in the offer or the Order. Where delivery is arranged by ACOREL or where the supply includes installation, the delivery and risk-transfer terms set out in the offer, the Order and Article 5.3 shall prevail. Any tax, duty, levy or other charge payable under French regulations or those of an importing or transit country is borne by the Customer. Prices are established exclusive of tax on the basis of the tariff in force on the date the offer is issued. The prices applied are those stated in the most recent commercial proposal provided to the Customer, valid for a period of 30 days. In the absence of a quotation in force, the price applied to an order is that of the tariff in force on the date the order is received. In the case of an open order, each delivery release is treated as a new order for the purpose of determining the sale price, unless otherwise agreed in writing. In the event of a change in tax or customs legislation, or a significant change in the exchange rate, ACOREL reserves the right to adjust its prices in accordance with the arrangements legally permitted.

2.2 Payment shall be made within a maximum of 30 net days from the invoice issue date, directly to ACOREL’s bank account. Any other means of payment requires ACOREL’s prior written agreement. Prices are quoted without early-payment discount.

3. Révision des prix

3.1 Principle. The prices set out in ACOREL’s commercial offers and Orders are firm for a period of twelve (12) months from the date the Order is signed by both Parties. Beyond this period, prices are subject to annual revision in accordance with the terms set out in this article.

3.2 Annual revision formula. Prices are revised annually according to the following formula:

P1 = P0 × (0.20 + 0.50 × S1/S0 + 0.30 × C1/C0)

Where:

–  P0 is the contractual price in force on the date of the previous revision, or on the Order signature date for the first revision.

–  P1 is the revised price applicable from the revision date.

–  S0 is the value of the revised Syntec index, published by the Syntec Federation, in the month the Order is signed. S1 is the value of that same index in the revision month.

–  C0 is the value of the industrial producer price index for the French market, CPF 26 and 27 (computer, electronic and optical products; electrical equipment), published by INSEE under identifier 010764349, base 2021, gross monthly data, in the month the Order is signed. C1 is the value of that same index in the revision month.

–  0.20 is the fixed lump-sum share corresponding to overheads and structure; 0.50 the weighting of the labour and engineering component (R&D, software development, integration); 0.30 the weighting of the electronic components and hardware component (sensors, electronic boards, communication equipment, cabling).

This formula reflects the actual economic structure of ACOREL’s supplies, made up primarily of software engineering, on-board electronics and electronic components.

The price revision applies from the thirteenth (13th) month following the Order signature date, upon written request by either Party, subject to thirty (30) days’ notice. In the absence of a revision request, the prices in force remain applicable until the next request. The index used is the latest known, published and final index on the revision date. The revision coefficient has three decimal places and is rounded up to the nearest thousandth. Should INSEE discontinue any of the indices referred to above, it shall be replaced by the substitute index designated by INSEE, together with the linking coefficient published by that body.

3.3 Exceptional adjustment in the event of a significant change in supply costs. Independently of the annual revision provided for in Article 3.2, in the event of a significant increase in the supply costs of electronic components (in particular sensors, central units, network equipment and cabling) that makes the economic balance of the contract substantially different from that existing on the Order date, ACOREL may request a price renegotiation by written notice sent to the Buyer. This request shall be accompanied by a certificate issued by a third party chosen by the Parties, certifying the observed increase in the supply cost of the component(s) concerned, expressed as a percentage of the conditions in force on the Order date, without disclosing supplier purchase prices, margins or the identity of ACOREL’s suppliers. On receipt of this notice, the Parties have thirty (30) days to meet and negotiate a price adjustment in good faith. This adjustment shall be the subject of an amendment to the current Order. Failing agreement within sixty (60) days of the notice, each Party recovers its freedom to act in accordance with the applicable contractual and legal provisions.

3.4 Hardship. The Parties expressly agree that the provisions of Article 1195 of the French Civil Code on hardship remain applicable to the commercial relations governed by these terms of sale. In the event of an unforeseeable change in circumstances at the time the contract was concluded that makes performance excessively onerous for one of the Parties, that Party may request renegotiation of the contract under the conditions set out in that article.

4. Penalties

Any failure to pay, even partial, on the agreed due date automatically gives rise, without prior reminder, to the payment on a pro rata temporis basis of late-payment interest calculated at three times the French statutory interest rate, together with the statutory fixed recovery indemnity of forty (40) euros per unpaid invoice. Where recovery costs incurred exceed this indemnity, ACOREL may claim additional compensation on presentation of supporting evidence. Failure to pay entitles ACOREL to suspend any delivery or service, without such suspension being deemed a delay or non-performance by ACOREL, and renders all sums due immediately payable. The Customer may not unilaterally withhold, set off or deduct any amount from ACOREL’s invoices, in particular on account of reservations, penalties or claims, without ACOREL’s prior written agreement or a final court decision. ACOREL may seek enforced performance of the agreement or its termination with damages.

For any travel priced by ACOREL as part of a project, a 50% surcharge shall apply where scheduling proves impossible, through the Customer’s fault, within 4 weeks before the scheduled travel date, thereby preventing any logistical optimisation. Where a planned trip is cancelled less than one (1) week before its date, through the Customer’s fault, 50% of the priced travel costs shall be invoiced.

5. Delivery – Claims – Installation

5.1 Delivery dates are always given for information and guidance only. Delivery delays by ACOREL shall not give rise to any penalty or compensation, nor justify cancellation of the order by the Customer. Penalty clauses appearing in the Customer’s commercial documents or General Terms and Conditions of Purchase (GTCP) are not enforceable against ACOREL.

5.2 Any reservations concerning defects or errors in delivery must be notified to the carrier on receipt and a registered letter must be sent to ACOREL within 3 working days of receipt. Failing written notification within this period, the Customer is deemed to waive any claim regarding the said goods, which shall be considered to conform to the order.

5.3 Where the supply includes installation, the Customer proceeds with acceptance of the equipment and signs an acceptance report immediately upon completion of the installation. Where immediate signature is materially impossible, the acceptance report is signed no later than five (5) working days after commissioning or after the acceptance request sent by ACOREL. Failing precise, substantiated reservations notified in writing within this period, acceptance is deemed final and unreserved. Commercial operation, use of the equipment or exploitation of the data also constitutes acceptance. Minor reservations that do not prevent normal operation shall not obstruct acceptance, invoicing or payment and are handled under the applicable warranty or maintenance. For installed equipment, the transfer of risk occurs upon acceptance, without prejudice to any earlier transfer of transport-related risk where an Incoterm so provides.

5.4 Acceptance and invoiceability criterion. For any vehicle, trainset, building, site or space whose access points are equipped with the hardware provided for in the contract and whose data is effectively transmitted to the ACOREL system, the installation is deemed operational, accepted, invoiceable and payable once ACOREL has carried out commissioning (on site or remotely) or once the ACOREL software generates counting files. Once this criterion is met, the Customer may not defer acceptance, invoicing or payment by invoking residual anomalies that do not prevent normal use of the system. Such anomalies are handled, where applicable, under the warranty or maintenance, without suspending the payability of sums due.

5.5 Equipment performance. ACOREL shall not be held liable for any performance shortfall exclusively attributable to the characteristics, limits, defects or malfunctions of sensors, IoT equipment or analysers manufactured or designed by a third party, provided ACOREL has complied with the applicable installation, configuration, integration and use requirements. In such cases, liability for the equipment defect lies with its manufacturer or designer. Commissioning of the system, its use by the Customer or compliance with the criterion in Article 5.4 establishes a presumption of proper operation and conformity of ACOREL’s equipment and services. It is not for ACOREL to demonstrate the absence of defect or performance shortfall. It is for the Customer alleging a defect to prove it by objective, precise, verifiable and reproducible evidence, established in accordance with the applicable contractual protocol and under normal operating conditions. A mere assertion, estimate, undocumented comparison, isolated data point or measurement taken under a protocol not accepted by ACOREL cannot call into question acceptance, invoicing, payability or the presumption of conformity. ACOREL shall assist the Customer in implementing the applicable warranty, up to a limit of four cumulative working hours per incident. Beyond this, and for any on-site intervention, in-depth study, expert assessment, adaptation or additional development, ACOREL shall send the Customer a financial proposal. No additional service shall be undertaken before acceptance of this proposal and receipt of the corresponding order. This assistance implies no admission of liability by ACOREL. ACOREL shall bear no warranty, assistance or compensation obligation greater than that granted by the manufacturer or designer.

6. Maintenance

The Customer is offered the option of signing a maintenance contract with ACOREL, which nonetheless remains independent of these general terms and conditions of sale. The Customer may therefore in no case request any maintenance intervention without a maintenance contract signed beforehand between the two Parties.

7. Limitation of liability

7.1 ACOREL applies the incoterm EXW Saint-Péray, Incoterms® 2020. ACOREL shall not be liable for any loss or damage of any kind resulting from a delay in or failure of delivery due to fire, labour disputes, accidents or incidents arising from force majeure or fortuitous events.

7.2 ACOREL has an obligation of means only.

7.3 ACOREL shall not be liable for what the Customer does with or infers from the system and the data. In any event, ACOREL’s total aggregate liability, on all grounds and causes combined, shall not exceed the amount, exclusive of tax, actually paid by the Customer under the Order giving rise to the damage. The Customer may not claim any other compensation, in particular for indirect or immaterial damage, operating losses, loss of profit, loss of turnover, contracts, opportunities or data, or reputational harm. This limitation does not apply solely in cases where the law expressly prohibits limiting liability.

7.4 ACOREL shall not be held liable for penalties or damages applied to the Customer by its own customers or principals. Any passing-on of third-party penalties to ACOREL is expressly excluded.

7.5 The Customer acknowledges that ACOREL shall not be liable for any loss of profit suffered by a third party and indemnifies ACOREL against any claim or legal action brought by a third party.

8. Customer obligations

8.1 The Customer is obliged to implement all means necessary for the proper performance of Orders. It may not refuse a legitimate intervention by ACOREL’s agents or subcontractors and shall observe the technical instructions given by ACOREL’s qualified staff.

8.2 The Customer undertakes to make available to ACOREL, within the agreed timeframes, all means necessary for the performance of the services, in particular access to vehicles, premises, networks and technical interfaces. Any delay or failure to provide access attributable to the Customer suspends ACOREL’s performance deadlines and entitles ACOREL to invoice the additional costs and resources incurred.

8.3 Where, at the agreed date and time, ACOREL’s team or that of its subcontractor is present on site and the equipment or site required for the intervention is not made available, the Customer or its representative signs a report of unavailability. This report constitutes acknowledgement of the unavailability and gives rise to the invoicing of a wasted journey, comprising the travel and team-mobilisation costs actually incurred. Refusal to sign the report does not prevent this invoicing, ACOREL being entitled to establish the unavailability by any means.

8.4 Where access to the Customer’s facilities, remotely or on site, is subject to an accreditation or authorisation procedure specific to the Customer, ACOREL is subject only to an obligation of means as regards the follow-up and outcome of that procedure. All associated costs, operations, timeframes and impacts are the Customer’s responsibility and financial burden.

8.5 The Customer undertakes to inform ACOREL of any change in its situation liable to affect the performance or payment of the services, in particular any change of address, legal status, bank details or financial situation.

8.6 Any dispute concerning counting or performance must be based on the applicable contractual protocol and notified in writing with the technical evidence enabling its verification. In the absence of a specific contractual protocol, the methods, tools and data produced by ACOREL prevail until proven otherwise. A dispute does not entitle the Customer to suspend payment of sums not seriously disputed.

8.7 Project extension and additional project management. Prices are established on the basis of the schedule, duration, assumptions, resources and scope defined in ACOREL’s offer. Any extension of the project beyond the forecast duration, where it does not result exclusively from a demonstrated breach by ACOREL, in particular due to a delay, unavailability, modification, suspension, or failure to decide, validate, inform or grant access on the part of the Customer or a third party, gives rise to additional invoicing of the project-management time and resources mobilised, according to the schedule of unit prices or, failing that, the ACOREL tariff in force. ACOREL informs the Customer of the situation and provides an estimate of the additional services. Deadlines are extended by a period at least equal to the delay, plus the time reasonably necessary to remobilise resources.

8.8 Limit of the time included in unit prices. Each unit price, lump sum or service set out in the offer, quotation or schedule of unit prices includes exclusively the volume of work, number of interventions, trips, meetings, days or hours expressly stated or reasonably identifiable in the contractual documents. ACOREL is not required to devote to a service more time or resources than so provided where the overrun results from a contingency, difficulty, request, modification, unavailability or breach not exclusively attributable to it. Once the planned volume is consumed, any additional intervention is subject to additional invoicing. ACOREL may suspend the services concerned until receipt of the additional order, without such suspension being held against it or giving rise to penalties.

8.9 Mandatory prior order. No study, service, manufacturing, component ordering, installation, intervention, modification, assistance or mobilisation of resources may be undertaken by ACOREL without prior receipt of a valid purchase order or equivalent contractual document corresponding to an ACOREL offer in force and issued by a person authorised to bind the Customer. An oral request, a technical email, an invitation to intervene, meeting minutes or a request made by a user does not constitute an order, unless expressly accepted in writing by ACOREL. Any commencement of performance exceptionally requested in writing by an authorised person of the Customer entails an obligation to pay for the services and commitments made by ACOREL under the relevant offer or, failing that, the ACOREL tariff in force. ACOREL may refuse or suspend any intervention not covered by an order, without liability or penalty. Contractual deadlines begin to run only on receipt of a complete and compliant order together with the necessary information, access and prerequisites.

9. Order cancellation

Orders received may not be cancelled, nor deliveries deferred by the Customer beyond the scheduled delivery date, without ACOREL’s prior agreement. Where the Customer proves uncooperative through its acts or omissions, ACOREL may cancel the order in the course of preparation and performance, without prejudice to the rights it may exercise against the Customer.

10. Contract termination

ACOREL reserves the right to terminate the sale contract unilaterally within 7 working days after sending the Customer a registered formal-notice letter with acknowledgement of receipt that has remained without effect during that period, in the event of total or partial non-performance by the Customer of a clause of these general terms and conditions of sale or of the main commercial contract signed between the Parties.

In addition, ACOREL may terminate the agreement where the Customer is in default of payment or becomes insolvent, enters court-supervised reorganisation or becomes subject to proceedings involving the appointment of a judicial administrator.

The Customer may in no case terminate the contract by operation of law without a written agreement signed by ACOREL.

In the event of suspension, postponement or termination requested by the Customer or resulting from a breach on its part, the following are immediately invoiceable and payable: services already performed, project-management time mobilised, components ordered or manufactured and non-cancellable, commitments entered into with suppliers and subcontractors, and storage, protection, travel and remobilisation costs. In the event of termination for convenience by the Customer accepted by ACOREL, ACOREL may also invoice compensation corresponding to the margin lost on the terminated portion, subject to justification and to the applicable mandatory provisions. The Customer returns to ACOREL any unpaid equipment. The confidentiality, intellectual property, data and limitation-of-liability clauses survive termination of the contract.

11. Warranty

Products are warranted for a period of 2 years from delivery against material and manufacturing defects, exclusively to ACOREL’s initial purchasers. Products are warranted free from any material defect or manufacturing fault, in accordance with the characteristics set out in the technical documentation in force at the time of delivery. The warranty does not apply to any defective goods or parts that have been subject to abnormal use, negligence, intervention, repair, modification or accident originating from the Customer. The warranty is strictly limited to the replacement of defective equipment returned by the Customer to ACOREL in accordance with Article 12 of these GTC. Replaced equipment is returned at ACOREL’s expense to the delivery address of the Customer’s original order.

12. Return of goods

To accept returns of goods within the 2-year warranty period, ACOREL must be informed beforehand in writing of the reason for the return, must have had the opportunity to verify the alleged defect or shortcoming, and must have acknowledged its existence or otherwise in writing. If ACOREL does not acknowledge the non-conformity of the goods, it shall inform the Customer by letter with acknowledgement of receipt. If ACOREL accepts the return of goods for a reason other than a defect or shortcoming, the shipping costs borne by the Customer shall be included on a lump-sum basis in the sale prices.

13. Retention of title

The goods remain the property of ACOREL until full payment of the price. Upon payment for the goods, the Customer becomes the exclusive owner of the equipment and bears the consequences thereof.

14. Intellectual property and software licence

The software, firmware, algorithms, databases and technical documentation supplied by ACOREL remain the exclusive property of ACOREL. The Customer benefits from a non-exclusive, non-transferable licence of use, limited to the use of the equipment supplied under the contract. Any reproduction, decompilation, reverse engineering or disclosure to third parties is prohibited. In the event of termination of the contract or non-payment, the licence of use is automatically suspended.

15. Counting data

15.1 Definitions. Raw Data: counting and measurement data generated by the ACOREL system on the Customer’s network. Aggregated Data: anonymised and consolidated statistical data, free of any reference identifying the Customer, its lines, vehicles or sites. Models: counting algorithms, calibration models, processing parameters and training datasets developed by ACOREL.

15.2 Customer rights. The Customer has a right of access to and use of the Raw Data generated by the equipment installed on its network, in accordance with Regulation (EU) 2023/2854.

15.3 Licence granted to ACOREL. The Customer grants ACOREL a non-exclusive, worldwide, irrevocable, royalty-free and perpetual licence, surviving the end of the contract, to use the Raw Data for the following purposes: operation and maintenance of the system, improvement and calibration of algorithms, quality control and performance verification, research and development, and production of Aggregated Data.

15.4 ACOREL’s ownership. The Aggregated Data, the database compiled and hosted by ACOREL, and the Models remain the exclusive property of ACOREL and enjoy the protection provided for in Article L.341-1 of the French Intellectual Property Code. ACOREL uses them freely, without restriction or royalty. The supply of Raw Data to the Customer entails no transfer of rights over these elements.

15.5 Confidentiality. ACOREL anonymises any data liable to identify the Customer, its network, lines, vehicles or sites before any use not directly related to performance of the contract.

15.6 Use. ACOREL may freely use the Aggregated and anonymised Data for the improvement of its products, research and development, quality control, model creation and the production of statistics, without identifying the Customer or reselling its Raw Data.

16. Protection of personal data

The Customer is the controller of the data collected by ACOREL’s equipment. ACOREL acts as a processor within the meaning of Regulation (EU) 2016/679 when it accesses the data in the course of maintenance or support. Anonymised and aggregated counting data does not constitute personal data.

17. Confidentiality

Each Party shall refrain, at all times, from disclosing, revealing or providing to a third party any information relating to the business or activity of the other Party. All documents provided by ACOREL before, during and after the performance of a service with the Customer are considered confidential.

Each Party shall disclose the information solely to those of its employees or subcontractors to whom such disclosure is necessary for the performance of their duties under the contract. Each Party shall impose the aforementioned confidentiality obligation on its employees and subcontractors. These confidentiality obligations shall survive for a period of three (3) years after expiry or termination of the agreement. They do not apply to information that has become public without fault of the receiving Party, that is required by a judicial or regulatory authority, or that was known prior to its communication.

The Customer must in no case copy, transcribe or use ACOREL’s know-how for the benefit of another company, whether competing or not. Failing this, ACOREL reserves the right to claim damages from the Customer commensurate with the harm suffered.

For the purposes of commercial communication or reference, ACOREL is entitled to refer to the projects and applications carried out with its customers, provided that no information contained in documents marked confidential by those customers is disclosed.

18. Insurance

ACOREL maintains in force professional civil liability insurance covering its activities, for a minimum amount of EUR 1,500,000 per claim. On the Customer’s written request, ACOREL provides a valid insurance certificate. The Customer undertakes to insure the ACOREL equipment installed on its vehicles or in its premises from the time of commissioning. The Customer undertakes to maintain adequate insurance cover for this equipment and to provide an insurance certificate on ACOREL’s simple request.

19. Assignment

The contract may not be assigned by the Customer to a third party without ACOREL’s prior written agreement. ACOREL reserves the right to assign or subcontract all or part of its obligations.

20. Recovery of used equipment

The disposal of waste from electrical and electronic equipment is subject to 2 alternatives. Either ACOREL organises and finances, for its Customer, the selective treatment of waste from its products in accordance with the legislation in force, with the Customer organising and financing the return of the products to the reprocessing location indicated by ACOREL. Or ACOREL grants its Customer, as a professional user, the possibility of carrying out the reprocessing of the waste itself; in that case it must comply with the treatment arrangements set out in the implementing decrees of the European directive of the Member States (for France, Articles 21 and 22 of Decree No. 2005-829 of 20 July 2005). Where ACOREL does not receive any equipment back for recycling, it considers by default that the Customer has chosen the second alternative.

21. Force majeure

ACOREL’s liability shall not be engaged if the performance of its obligations is prevented or delayed by an event of force majeure within the meaning of Article 1218 of the French Civil Code, in particular: natural disaster, epidemic, armed conflict, strike, component shortage, cyberattack or governmental decision. The Party invoking force majeure shall inform the other Party in writing within fifteen (15) days. If the force majeure continues beyond sixty (60) days, either Party may terminate the contract without compensation.

22. Severability

Should any clause of the contract and of the general terms and conditions of sale be held unlawful, invalid or unenforceable by a competent French court, the remaining provisions shall nonetheless retain their full effect.

23. Term

These general terms and conditions of sale are concluded for a term of one (1) year from the date the purchase order is signed, and are tacitly renewable for the same term, under the same conditions, on the anniversary of the effective date.

24. Governing law and sales abroad

Any matter relating to these general terms and conditions of sale and to the sales they govern that is not addressed by these contractual provisions shall be governed by French law.

25. Jurisdiction

Any dispute regarding the application, interpretation and performance of these conditions, and any litigation relating to the conclusion, interpretation, performance or termination of contracts entered into by ACOREL, shall be brought before the Court of Valence (Drôme), even in the event of a warranty claim.