GENERAL TERMS AND SALE CONDITIONS
1 Place Firmin Gautier – 38000 GRENOBLE –
France RCS Grenoble 501 914 998 Revision date: 2020/04
Except as otherwise agreed by ASYGN SAS, or its affiliates and/or subsidiaries (“Seller”) in writing, the following terms and conditions (“Agreement”) will apply to all orders received and all sales made by Seller.
The terms and conditions set forth herein constitute the sole and entire agreement between Seller and the buyer (“Buyer”) of goods and/or services (collectively “Goods”) from Seller with respect to the subject matter hereof. Any term or condition in any printed form of Buyer, including but not limited to any order, confirmation, general condition of purchase, or other document, which is in any way inconsistent with or in addition to the terms and conditions hereof is hereby expressly rejected, and Seller’s acceptance of any order of Buyer is hereby expressly made in reliance on Buyer’s assent to all terms and conditions hereof. “Order” means Buyer’s written, or electronic, purchase order for the Goods. An Order is accepted only after Seller has issued an Acknowledgment to Buyer.
Prices, Taxes Quotations of Seller containing no indications as to the period of validity are not binding for Seller. All Seller quotations and related documents are confidential and may neither be disclosed to any third party nor any person who does not have a need to know. Except as otherwise expressly stated herein, the prices do not include federal, state or local sales, use, goods and services, excise or other similar taxes applicable to goods or services involved in this transaction. All such taxes shall be paid by Buyer, unless Buyer provides Seller with evidence satisfactory to Seller of exemption from such taxes. When Seller is required by law or regulation to collect such taxes, Seller will add such taxes to the sale price of the goods or services. Prices quoted in Seller price lists, leaflets, press releases and websites are indicative and not binding. If not clearly marked differently, all prices are in Euros (€) excluding Value Added Tax (VAT) and EXW Seller designated facility (Incoterms 2020). Costs for freight and insurance are quoted and charged separately. For all Orders and/or quantities not confirmed by Seller to Buyer in writing, Seller expressly reserves the right to adapt the offered prices in connection with possible increases in production costs (salaries, employers’ national insurance contributions, taxes, components, material, equipment, etc.). Seller reserves the right to adjust any price relating to an acknowledged Order in a currency other than Euros (€), should an exchange rate fluctuation exceeding 3% occur between the date of the Acknowledgement and the date of delivery. Except as otherwise expressly stated herein, any service calls or other service work performed by Seller shall be at Buyer’s expense in accordance with Seller’s standard rates for such services.
3. Modifications and Substitutions
Seller reserves the right to modify its process, materials, or specifications for Goods and to substitute goods substantially equivalent to those initially ordered. It is Buyer’s responsibility to test all Goods to determine suitability for its needs. GENERAL TERMS AND CONDITIONS OF SALE ASYGN SAS – 1 Place Firmin Gautier – 38000 GRENOBLE – France RCS Grenoble 501 914 998 Revision date: 2020/04
4. Payment Terms
Subject to Seller’s credit check and approval, and unless Seller otherwise specifies, all invoices are payable net within 30 days of the invoice date. If Buyer fails to timely pay any amount owed to Seller, Seller reserves the right to withdraw credit, to impose other payment terms or late charges, to cease further shipments, or to impose any combination of these actions. For new Buyers and/or in special cases, payment in advance or by letter of credit may be requested. Buyer is under no circumstance permitted to offset any of its alleged claims against anyamount Buyer owes to Seller. Any banking fees that apply for the settlement of invoices are at the expense of Buyer. Seller reserves the ownership of Goods until full payment.
5. Terms of Delivery
Inspection and Acceptance – Unless otherwise agreed in writing, all deliveries by Seller are EXW Seller designated facility (Incoterms 2020). Risk of loss or damage to Goods will pass to Buyer upon delivery to Buyer at Seller’s designated production site. Seller’s delivery and performance dates are estimates only. Seller will use commercially reasonable efforts to deliver in accordance with the delivery or performance dates but may change those dates as it deems necessary. Seller will not be liable for failure to deliver or perform by the estimated dates. Failure to deliver or perform by the estimated dates does neither give Buyer the right to cancel an Order or any part thereof nor to claim damages. Seller reserves the right to make partial deliveries. – Goods are deemed to be accepted by Buyer unless Buyer provides Seller written notice to the contrary specifying the nonconformance within 30 days of delivery of the Goods. Seller may examine Goods which Buyer claims are nonconforming on Buyer’s premises. Seller may impose charges to reimburse it for its costs if it finds Buyer’s claim is unsupported. No Goods may be returned to Seller unless Buyer has first received Seller’s return material authorization (“RMA”) and complied with Seller’s thereto related instructions.
6. Seller’s responsibility
Warranty and limited liability – Limited liability : except where this exclusion or restriction of liability would be void or ineffective under applicable law, and except to the extent damages are caused by a breach of the license or confidentiality obligations under the Order SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY LOST PROFITS OR LOST SAVINGS, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF SELLER HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF THESE DAMAGES. Moreover, in no event shall Seller aggregated liability for any claims arising from this order exceed the fee paid by Buyer, excluding taxes, for the Goods giving rise to the claim. The provisions of this section shall survive the completion of the services under the Order, and/or any expiration or termination of the Order. MEDICAL APPLICATIONS: In connection with any anticipated use of Products by Buyer in medical applications, unless otherwise confirmed in a written agreement executed by duly authorized representatives of Seller, Buyer acknowledges and agrees that:(a)Seller’s Products are manufactured under normal industrial conditions, which may not satisfy the requirements applicable to products manufactured for certain medical applications. It is the sole responsibility of persons contemplating medical uses of Seller’s Products to comply with all applicable laws, regulations, codes and standards, including but not limited to the U.S. Federal Food, Drug and Cosmetic Act and regulations of the Food and Drug Administration. Seller’s Products have not been designed, manufactured, tested or qualified for use in certain medical applications (including life support systems) and Seller has not sought or received any rulings from the FDA or any other federal, state, or local government agency as to the safety, effectiveness or appropriateness of its Products for such applications. Persons intending to evaluate or to use Seller’s Products for medical purposes must rely on their own medical and legal judgment without any representation on Seller’s part.(b) Buyer will indemnify, defend, and hold harmless Seller and its officers, directors, employees, agents, and contractors from and against any and all losses, claims, damages, liabilities, and expenses (including reasonable attorneys’ fees) arising out of or based upon any bodily injury or property damage arising from Buyer’s incorporation of Products as part of any product made by Buyer for medical applications, including without limitation cardiac pacemakers, defibrillators, electrodes, leads, and programmers, and components therefore. Seller shall give Buyer written notice of any such claim and shall cooperate in the defense of such claim at Buyer’s expense. In addition to the legal warranty for latent defects, Seller guarantees the product solely against any manufacturing defects or failure of its electronic or mechanical components. The warranty terms cover items which are acknowledged by Seller’s technical support service to be defective. These shall be repaired, or, during the warranty period, Seller reserves the right to replace the defective product with repackaged product (like-new condition) or with a new product which is equivalent in terms of functionality and performance. Seller may not, under any circumstances, be required to pay any financial compensation whether direct or indirect damage resulting from any downtime or loss of use of the product in question, regardless of the cause of this. For products out of warranty: Buyer shall be liable for the labour, disassembly and reassembly, as well as transportation costs, for the product. The goods are always transported under the responsibility of Buyer. The product is guaranteed for a period of 2 years as from the date of delivery. The duration of the warranty for exchanged or repaired products is an additional 3 months as from the date of Seller technical support service’s invoice. The original of the invoice, or the purchase receipt, must be included with the warranty claim in order for the warranty to be taken into account (delivery receipt with serial number corresponding to the device). The warranty may not apply if:
• The damage is caused by lightning, water, fire, a drop, war, public disturbances, or any other cause which cannot be attributed to Seller.
• The instructions for use or assembly instructions have not been observed (connection or installation error, incorrect supply voltage, incorrect use of the device).
• The installation was not carried out by a professional.
• Work on the device was carried out by a third party not approved by Seller.
• The serial number has been removed or modified, or if any warranty seals have been removed or broken.
• The device has been transported without adequate protection
• The device has suffered damage as a result of corrosion or of installation in an inappropriate environment (humidity, dust, poor ventilation, presence of foreign bodies or insects).
• The device has been modified or converted without authorisation (whether to bring the product into line with the technical and safety standards in force in another country or for any other reason). Seller does not guarantee:
• The deterioration of cables if they have been subjected to strains greater than those prescribed by Seller, if they have been subject to poor installation or to deterioration through various agents of animal nature (rodents, etc.), chemical products, etc. The following equipment is excluded from the warranty:
• Accessories which do not form an integral part of the product (cables, readers, etc.).
• Wear parts (batteries, etc.).
7. Intellectual Property
No License, Confidential Information -All intellectual property rights in the Goods remain vested in Seller or its licensors. Title to all software and firmware remains vested in Seller or its licensors. Software and firmware are licensed to Buyer a) to the strict extent necessary for the Goods to perform in accordance with their specification and/or b) to allow free use of the Goods without violating any intellectual property rights of Seller or its licensors. No other rights are transferred or licensed to Buyer as a result of the sale of Goods to it. Software and firmware are provided “AS IS”. All products, designs, cells, circuits, devices, software, firmware, mask sets, design tapes, processes, methods, plans, drawings, drafts, sketches, schematics, quotations, cost estimates and other technical documents or items that are designed, developed, generated or produced by Seller in connection with the Goods are and remain the sole property of Seller. Any form of reproduction, communication to third parties and/or use of such documents in design, development and/or production of any product or its components is prohibited. Buyer must maintain the secrecy of and not disclose, without Seller’s express written consent, all trade secrets, proprietary information, or confidential information, which Buyer receives from Seller. Buyer must not, nor permit others to, manufacture, reverse engineer, translate, decompile, create derivative works based on the whole or any part of the Goods, disassemble, adapt, modify, duplicate, or otherwise copy or reproduce any of the Goods without obtaining Seller’s prior express written permission. Unless Buyer is an authorized distributor of Seller’s Products or unless Buyer augments the Goodswith substantial valueadded circuitry or software, Buyer may not resell Goods without Seller’s prior written consent. – For the avoidance of doubt, each party retains all rights in its preexisting software and other intellectual property, including without limitation its pre-existing know-how, methods, processes and ideas which may be used and/or provided to the other party during the course of the execution of the engagement (“Pre-existing Information”). And accordingly, deliverables are provided with no indemnification for infringement of third party intellectual property rights. – Any information disclosed to one party by the other party which the disclosing party considers proprietary information shall be disclosed subject to a mutually acceptable confidentiality agreement, which the parties will sign prior to disclosure. The specific terms and conditions of the Order are confidential and neither party shall disclose such to any third party without the prior written consent of the other party, except to the parties’ outside attorneys, bankers and accountants or as may be required by a court of competent jurisdiction. 8. Termination of Order for Services Either party may terminate the performance of service upon material breach of the Order by the other party and failure to cure the breach within 30 days from receipt of written notice specifying the breach. Buyer will remain liable to pay Seller for any service performed prior to the termination and any Invoice issued prior to the termination. The Order may not otherwise be terminated. In the event of termination for Buyer’s breach, Buyer will cease use of all delivered Goods provided under the Order as of the effective date of the termination and will upon request provide Seller with certification, signed by an authorized representative of Buyer, that all such Goods have been so returned or destroyed. In the event of termination other than for Buyer’s breach, Buyer may retain and continue use of Goods provided under the Order before the effective date of the termination pursuant to the provisions of all other section.
8. Termination of Order for Services
Either party may terminate the performance of service upon material breach of the Order by the other party and failure to cure the breach within 30 days from receipt of written notice specifying the breach. Buyer will remain liable to pay Seller for any service performed prior to the termination and any Invoice issued prior to the termination. The Order may not otherwise be terminated. In the event of termination for Buyer’s breach, Buyer will cease use of all delivered Goods provided under the Order as of the effective date of the termination and will upon request provide Seller with certification, signed by an authorized representative of Buyer, that all such Goods have been so returned or destroyed. In the event of termination other than for Buyer’s breach, Buyer may retain and continue use of Goods provided under the Order before the effective date of the termination pursuant to the provisions of all other sections of these General Terms and Conditions of sales.
9. Third party Materials
If the work contemplated in the Order would require that Seller use (a) software licensed to Buyer by a third party, or (b) other information or material (including designs) provided by Buyer in which a third party has intellectual property rights (collectively “Third Party Materials”), Buyer shall ensure that Seller has the right to use the Third Party Materials on Buyer’s behalf. Seller shall limit its use of such Third party Materials to work performed for Buyer under the Order. Buyer will indemnify Seller against any claims, expense, or liability of any kind arising out of Seller’s use of Third Party Materials on Buyer’s behalf.
10. Sub Contracting
Seller reserves the right to sub-Contract part of or all of the entire work related to the Order to one or several qualified sub-Contractors of its choice. Seller shall however remain the only liable party with regards to the Order.
11. Non-solicitation During the Order
and for a period of two years following its termination, Buyer will not solicit, induce, or attempt to hire any employee or contractor of Seller involved with the service under the order.
12. Export Control Buyer
acknowledges that the deliverables are or may be subject to export control restrictions applicable to Seller and/or Buyer under foreign laws or regulations. Buyer will not do or omit to do anything that would place Seller in breach of the said laws or regulations. Buyer shall obtain all such necessary Governmental authorizations and consents for the export of the deliverables.
13. Force Majeure Seller
will not be liable for any cause beyond its control, including but not limited to acts of God, acts of civil or military authority, fires, epidemics, floods, riots, wars, terrorism, sabotage, labor disputes, yield problems, or inability to obtain materials, components, energy, manufacturing services or facilities, or transportation on commercially reasonable terms. If any such contingency or condition occurs, Seller may, at its option, delay the delivery or performance, or cancel the whole or any part of the Order. 14. Applicable Law and Place of Jurisdiction The present Terms and all contracts between Seller and Buyer shall be exclusively governed by and construed in Furthermore, the application of the United Nations Convention on Contracts for the International Sale of Goods (11 April 1980) is explicitly excluded. All disputes arising from or in connection with this contract that cannot be settled friendly will be submitted to the Court of Arbitration of the ICC of Paris. If the disputes cannot be settled by the Court of Arbitration, Grenoble/France (or Paris/France, if Grenoble is not applicable) is the exclusive jurisdiction for the settlement of all and any disputes out of or in connection with these Terms and all contracts between Seller and Buyer. Seller reserves the right, however, to take legal action against Buyer before the authority of Buyer’s legal domicile (or principal place of business) or before any other competent authority, in which event exclusively French law shall remain applicable.