ARTICLE 1 – DEFINITIONS
“PRODUCTS”: The medical devices and services marketed by DEDIENNE SANTE. “DS”: The company DEDIENNE SANTE S.A.S., Mas des Cavaliers, 217 rue Nungesser – 34 130 Mauguio (France). “CUSTOMER”: Any natural or legal person who places an order with DS, final user or not of the PRODUCTS.
ARTICLE 2 – PURPOSE
The purpose of this contract between DS and the CLIENT is to define the terms and conditions under which DS undertakes to sell the PRODUCTS to the CLIENT and under which the CLIENT undertakes, by accepting them without reservation, to acquire the PRODUCTS under the conditions (“GTC”) defined hereafter.
ARTICLE 3 – ORDERS
Orders are final as soon as they are transmitted by any means to DS. The sale shall be deemed valid only upon written acceptance of each order by DS or at the latest upon delivery of the PRODUCTS to the CUSTOMER. The benefit of the order is personal to the CUSTOMER and cannot be transferred without the prior agreement of DS.
ARTICLE 4 – SHIPPING – DELIVERY – RECEIPT
The PRODUCTS, whether sold on a firm basis or on consignment, travel at the CUSTOMER’s risk, even when shipped carriage paid. DS declines all responsibility for alterations, losses or damage occurring during transport. Delivery shall be made either by direct handover of the PRODUCTS to the CUSTOMER or by delivery to a carrier in DS’ premises. Deliveries shall be made only according to availability and in the order of arrival of orders. DS is authorized to make deliveries in whole or in part. Delivery times are only indicative and depend on the supply and transport possibilities of DS. Exceeding the delivery time shall not give rise to damages, deductions or cancellation of orders in progress. DS shall not be liable for any delay or failure to deliver. DS is released from its obligation to execute orders in the event of force majeure. Acceptance shall result from the signature by the CUSTOMER of the delivery receipt. The CUSTOMER shall check the PRODUCTS delivered upon arrival and shall, if necessary, make any reservations in the event of damage or shortage in the form and within the timeframe provided for in Article L.133-3 of the French Commercial Code. It is the CUSTOMER’s responsibility to notify, by registered letter, the carrier having made the delivery, of any damage or loss noted upon arrival, within three days of receipt of the PRODUCTS, in accordance with Article L.133-3 of the French Commercial Code, and generally to exercise any recourse against the carrier. In the absence of these reservations, DS’ responsibility cannot be called into question. Notwithstanding the retention of title clause below, all risks of loss and deterioration of the PRODUCTS sold, as well as any damage they may cause, are transferred to the CUSTOMER as of the date of delivery of the PRODUCTS.
ARTICLE 5 – PRICES
In the absence of an express written agreement, the prices of the PRODUCTS shown on DS’ documentation are given as an indication only, the invoicing always being based on the prices in force on the day of shipment and, for certain PRODUCTS, on the price determined by the legislative and/or regulatory provisions applicable to them. The conditions mentioned on the pro forma invoices issued by DS are valid for one (1) month. Prices are exclusive of taxes, ex works Mauguio or Nîmes (Incoterms® 2010), plus VAT at the legal rate. Any tax, duty or other service to be paid in application of the French and Community regulations, or those of an importing country or a country of transit, are at the CUSTOMER’s charge.
ARTICLE 6 – PAYMENT – LATE PAYMENT PENALTY
An invoice will be established and delivered at each delivery. Invoices are payable at the registered office of DS. Invoices issued by DS shall be payable to any individual professional, and within thirty (30) days end of the month following the date of delivery of the PRODUCTS for other CUSTOMERS. No discount is granted for early payment. The amount of invoices may not be reduced by the CUSTOMER by any amounts that may be owed by DS. In the case of deferred payment or payment on time, the mere delivery of a bill of exchange or a cheque, implying the obligation to pay, does not constitute a payment within the meaning of this article, but their effective payment on the agreed due date. Any complaint by the CLIENT may not under any circumstances have the effect of deferring or suspending payments. In the event of late payment, DS may suspend all orders in progress until full payment by the CUSTOMER of its outstanding amounts, without prejudice to any other course of action. Any delay in payment shall automatically result in the application, as a penalty clause, from the due date shown on each invoice, of late payment penalties equal to the legal interest rate plus 7 basis points plus, in accordance with the French Commercial Code (Art. L441-6), a fixed indemnity of 40 €uros for collection costs. Beyond this fixed indemnity of 40 €, on proof, all the expenses caused by the contentious recovery of the sums due by the CUSTOMER are at his expense.
ARTICLE 7 – RETENTION OF TITLE
DS shall retain full ownership of the PRODUCTS until full payment of the price, fees and taxes. In the event of non-payment on the due date or in the event that the CUSTOMER is the subject of receivership or liquidation proceedings prior to full payment, DS reserves the right to demand the return of the PRODUCTS by registered letter with acknowledgement of receipt under the conditions set forth in Articles 1599 and 2279 of the Civil Code. DS and its carrier are authorized to enter the premises where the PRODUCTS are located during the CUSTOMER’s working hours in order to remove them. Consequently, (1) in case of return of the PRODUCTS, the down payments made by the CLIENT shall be definitively acquired by DS, (2) the CLIENT shall insure the delivered PRODUCTS for their replacement value as new against the risks of loss, deterioration, destruction, (2) the CUSTOMER shall insure the delivered PRODUCTS for their replacement value as new against the risks of loss, damage, destruction or theft and shall keep DS informed of any measures taken by third parties concerning the PRODUCTS, in particular in the event of seizure, and (3) in the event of resale and/or processing of the delivered PRODUCTS, the CUSTOMER undertakes, at DS’s first request, to assign all or part of the claims acquired against the purchasers up to the amount due. These provisions do not prevent DS from transferring to the CLIENT the risk of loss or deterioration of the PRODUCTS subject to retention of title, as well as any damage they may cause, upon delivery of the PRODUCTS to the carrier or shipper.
ARTICLE 8 – WARRANTY – QUALITY CLAIMS – LIMITATIONS OF LIABILITY
DS warrants that the PRODUCTS delivered comply with the regulations in force and the specifications as stated in the instructions during the period of validity of the PRODUCTS delivered, provided that the conditions of storage and use of the PRODUCTS have been respected. Any complaint regarding the quality of the delivered PRODUCTS must be notified to DS immediately. It is the CLIENT’s responsibility to provide any justification for the reality of its complaints. Any complaint about the quality of the PRODUCTS shall not exempt the CUSTOMER from paying the price due when due. DS makes no warranty, express or implied, as to the fitness of the PRODUCTS for any particular purpose. DS’s liability shall in any event be limited to the replacement or repair of the defective equipment. DS shall not be liable, whether in contract, tort or any other action, for any direct or indirect, incidental or consequential damages of any kind or for any loss, including but not limited to financial and commercial loss, such as loss of profits, turnover, customers or data, resulting from the use of the PRODUCTS.
ARTICLE 9 – PRODUCT RETURNS
With the exception of complaints regarding the quality of the PRODUCTS, any return of a PRODUCT, in particular a return in case of an order error by the CUSTOMER, shall be subject to a formal written agreement between DS and the CUSTOMER. Following DS’ agreement, the returned PRODUCTS shall be accompanied by a Return Form previously given to the CUSTOMER by DS and shall be returned in their entirety to DS in the state in which they were delivered, unopened, kept in the original packaging. The PRODUCTS shall be sent to DS exclusively by a carrier appointed by DS for this purpose. No return of a PRODUCT shall be accepted by DS at the sole initiative of the CUSTOMER.
ARTICLE 10 – TRADEMARKS AND INTELLECTUAL PROPERTY – USE OF PRODUCTS – RESALE OF PRODUCTS
DS and all distinctive signs and names on the PRODUCTS are registered trademarks, the use of which is not granted to the CLIENT by the present contract. These GTC do not imply any transfer of patent licenses or any other industrial property rights whatsoever or any marketing and/or distribution rights from DS to the CUSTOMER on the transferred PRODUCTS. Studies, plans, drawings or documents delivered or sent by DS to the CUSTOMER shall remain the property of DS; they may not be communicated to third parties. The CLIENT shall comply with all laws, regulations and/or guidelines applicable to the use of the PRODUCTS. The CLIENT acknowledges that the use of the PRODUCTS is the sole responsibility of the CLIENT and that DS shall not be liable in any way for any claims, damages or losses arising from the use of the PRODUCTS by the CLIENT. Any resale of a PRODUCT shall be subject to DS’ prior consent.
ARTICLE 11 – MATERIAL SURVEILLANCE AND TRACEABILITY
Taking into account the particular regulatory constraints applicable to medical devices, without prejudice to the provisions of the Public Health Code, the CLIENT undertakes to: (1) ensure full traceability of medical devices for which DS issues a batch or serial number, (2) report without delay any incident or malfunction likely to jeopardize the safety and/or health of patients or staff, (3) comply with any instructions given to it by DS or any public body in relation to the PRODUCTS or their use. Acceptance of delivery shall constitute acceptance without reservation of these three undertakings.
ARTICLE 12 – APPLICATION – SCOPE AND JURISDICTION
By placing an order and/or accepting the PRODUCTS ordered, the CUSTOMER accepts these GTCs in full and without reservation. The DS GTCs in force are those appearing on the last invoices issued by DS and/or, if applicable, those sent directly to the CLIENT by DS. In case of contradiction between the provisions of this paper edition of the GTC and the provisions of another edition, the provisions of the most recent edition shall prevail. These GTC shall prevail over any conditions that may appear on the CUSTOMER’s documents and shall be applicable to all sales by DS in France and abroad. Any contrary condition opposed by the CUSTOMER shall, in the absence of express acceptance, be unenforceable against DS, regardless of the time at which it may have been brought to its attention. All additions, deletions, modifications or deletions to these GTC that are not approved by DS shall be null and void. No special condition, nor any General Terms and Conditions of Purchase of the CUSTOMER may, unless formally accepted in writing by DS, prevail over these GTC. The fact that DS does not take advantage of any clause of these GTC at a given time shall not be interpreted as a waiver of the right to take advantage of any clause of these GTC at a later date. In the event of special agreements between DS and the CUSTOMER, these agreements may derogate from certain provisions of these GTC, the other provisions of which shall remain applicable insofar as they are not contrary to them. These GTC are subject to French law. All disputes relating to these GTC shall be submitted to the Commercial Court of Montpellier.