and conditions of sale
Laboratoires BIOTIC PHOCEA S.A.R.L.
16-18 bd Michelet
13008 Marseille – FRANCE
Siret : 423 788 975 00047
Code A.P.E. : 2012Z
N° T.V.A. : FR62 423 788 975
The products manufactured and/or marketed by the LABORATOIRES BIOTIC PHOCEA (the “Seller”) are intended for professional resellers or professional users (individually the “Buyer”) within their commercial or liberal activities. These general terms and conditions of sale (“GTC”) shall apply entirely to any order submitted by the Buyer to the Seller, the order implying acceptance of the GTC without exception. The GTC prevail over any other document exchanged between the parties, in particular the Buyer’s general purchasing conditions, whenever such document may have been brought to the attention of the Seller. Any condition departing from or adding to the GTC shall require prior written approval from the Seller. All information in the brochures, leaflets, price lists, or any advertisement of the Seller are communicated for information purposes only, and cannot bind the Seller in any way, unless with written approval. The Seller reserves its right to modify them at any time.
The Buyer places its orders by any written means or by phone. Orders shall specify the quantity, the designation and/or the reference of the products, and the destination. The Seller issues an order acknowledgement which shall set forth the definitive conditions of the sale, within 5 business days from receipt of the order. Once acknowledged, orders may not be cancelled nor modified by the Buyer without Seller’s prior written approval, which shall be provided under conditions allowing Seller to be fully compensated for all loss or damage caused by such cancellation, including any loss of margin. Moreover, any down payment already made shall be kept by the Seller.
3. PRICES – PAYMENT TERMS
Prices are those applicable upon acknowledgment of the order. Prices are EX-WORKS (Incoterms ICC Paris 2010) without taxes, unless provided for otherwise in writing. Unless agreed otherwise in writing between the parties, prices payable before dispatch. Late payment gives rise to (i) late penalties amounting to the interest rate applied by the European Central Bank to its most recent main refinancing operations plus 10 points and to (ii) recovery costs corresponding to a lump sum of 40 Euros, or any other amount in excess upon evidence, without prejudice to any damages. Payment terms may not be postponed and no deduction shall be made by the Buyer, even in case of dispute. In the event Buyer fails to pay any invoice, (i) all other invoices shall be due; and (ii) the Seller may require any payment guarantee it would deem necessary and, at its option, may cancel or suspend, without compensation or notice, all orders, without prejudice of any other form of action.
Delivery timeframes set forth in the order acknowledgement are indicated for information purposes only. In no event shall any failure to deliver products in such timeframes justify cancellation of the order, or grant any right to penalties or damages, for any reason whatsoever regardless of the importance and consequences of the delay. The Seller reserves the right to carry out complete or partial deliveries, what is expressly accepted by the Buyer. Unless provided for otherwise, the products are delivered EXW place designated by the Seller and set forth in the order acknowledgement. Risks thus pass to the Buyer upon delivery, without prejudice to Seller’s right to benefit from section 8 of the present GTC. Shipping costs, insurance, taxes, duties, handling and all other charges in connection with the shipment and importation of the products are borne by the Buyer. The Buyer thus agrees to subscribe an insurance policy to cover risks of loss, theft or destruction of the products from the date of delivery. If the Buyer is located outside the European Union, it undertakes that : the customs broker coordinates with the Seller and reports to it full completion of the export formalities, in particular by providing it with the products’ declared prices, and- evidence of export and/or exit of the European Union territory is systematically communicated to the Seller as soon as possible after export.
5. COMPLIANCE WITH REGULATIONS:
The Seller markets products which comply with French and European regulations in connection with the manufacture of products, in particular with packaging and labelling of products, as applicable when products are delivered. The Seller certifies that its manufacturing process complies with the essential requirements for health and safety as required by the Directive 93/42/EEC for medical device, and with good manufacturing practices as referred to in article L. 513-10-3 of the French Public Helath Code for tattooing products.
The Buyer must verify the laws and regulations in force in the country in which it imports the products in order to insure their compliance with applicable regulations. It undertakes not to export the products to the United States of America or Canada.
The Buyer must also take the necessary steps and complete the necessary formalities for the importation of products, and in particular, the customs formalities, obtain any import and resale licence, any authorization or document requested by public authorities of the concerned country, without any recourse against the Seller.
The Buyer undertakes to abide by and ensure its customers abide by applicable regulations in the country in which products are marketed, in particular in terms of traceability, declaration of activities, medical waste, professional training, respect of health and security regulation, information in connection with risks and precaution to follow after performing the technique.
The Buyer must be informed of and ensure its customers are informed of the conditions and precautions for the use of the products and must ensure a traceability process is put in place (in particular to know every contact details of customers as well as the batch numbers of the products sold). In this respect, the Seller is not liable in case of misuse of the products or for the translation of the labels and notices, as well as for the non-compliance with these notices.
6. WARRANTY – CLAIMS:
Inspection upon delivery: in the event of damages theft, total or partial loss associated with transport, the Buyer must report to the carrier, and exercise any recourse within the time limits provided for by applicable regulations. It shall inform the Seller within the same time limits.
The Buyer must inspect the products upon delivery, in particular the quality, the quantity and the reference number, as well as the compliance with the order. In no event shall any claim be taken into account after a period of 10 business days from the date products have been made available or after their use.
Non-compliance of products: If theBuyer notifies to the Seller that the products are not compliant or are defective within three (3) months from the date of delivery, the Seller shall replace the products. In case of hidden defects, the warranty, valid for a period of one year from delivery, shall consist, at Seller’s sole option, in the replacement or reimbursement of the defective products.
In any case of replacement, the Seller shall bear costs in connection with such replacement, unless the defect is attributable to the Buyer or to the carrier. In such case, the Buyer shall be responbsible for those costs. No products shall be returned without the Seller’s prior written approval. The Seller is required to provide a detailed report evidencing the alleged defects or the non-compliances.
Exclusion of warranty: The warranty does not cover defects and damages caused by (i) wrong handling or keeping of the products, in particular for a use of the products which does not comply with the notice of use or use precautions of the products, (ii) the products submission to abnormal conditions (thermal, humidity, radiation…), (iii) the interaction with an external or third-party subtance or product, (iv) the negligence or the inappropriate use by the Buyer or by the user or (v) defects in connection with the packaging of the products carried out without the Seller’s authorisation. In any event, the Seller’s liability is strictly limited to the value of the products concerned. The seller is in no event responsible or liable for indirect damages including, but not limited to lost profits or revenues or lost earning.
Limitation of warranty: These conditions of warranty are exclusive and in lieu of all other warranties of satisfactory quality written, oral or implicit. EXCEPT AS EXPRESSLY SET FORTH IN THESE GTC, THE SELLER MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE PRODUCTS, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, MERCHANTABILITY, THAT SPECIFIC RESULTS SHALL BE ACHIEVED, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. PRODUCT’S MARKETING:
Without prejudice to section 5 above, the Buyer undertakes not to make any allegation in connection with the products which are not in compliance with the Seller’s ones, nor allegations which may be prejudicial to the Seller’s brand names and to its products.
The Buyer acknowledges that it has been informed that some products have an expiry term of 5 years from their sterilisation. Thus, the Buyer undertakes (i) to ensure that the products shall always be supplied to the customers with a sufficient expiraty term to allow the customers an effective use and (ii) to adequately and sufficiently inform its customers of this timeframe.
In any event, the Seller shall not grant any return of products on this ground.
The Seller retains ownership of the products until the purchase price and incidental charges have been paid in full. The Seller reserves the right to collect the products in the event of non-payment in due time.
9. INTELLECTUAL PROPERTY – CONFIDENTIALITY:
The sale of the products under these GTC cannot be deemed to include the transfer or license to use intellectual property rights of Seller in connection with the products. The Buyer acknowledges that all information and commercial or technical documentation that Seller communicates under the order are and remain the sole property of Seller and must remain strictly confidential. The Buyer agrees to protect such information and documents and to keep them strictly confidential. It shall refrain from using such information and documents for purposes outside the fulfilment of the order, and from disclosing them directly or indirectly to unauthorized third parties.
The Seller is the only intellectual property rights owner. If a thrid party action is brought against the Buyer claiming that the Buyer’s use of the products infringes any valid intellectual property right of this third party, the Seller will defend the Buyer at the Seller’s expense and pay any damages and costs finally awarded against the Buyer in the infringement action, but only if (i) the Buyer notifies the Seller promptly upon learning that the claim might be asserted, (ii) grants the Seller the sole control over the investigation, preparation, defence of the claim and any negotiation for its settlement or compromise and (iii) the Buyer fully cooperates with the Seller in its defence or settlement of the claim.
When the Buyer is a reseller of the products sold by the Seller (a“Reseller”), the Reseller shall indemnify and hold the Seller harmless from and against any and all claims, actions, losses, damages and expenses (including attorneys' and experts' fees and sum reasonably expended in investigation and settlement of litigation, pending or threatened) arising out of the operation of the Reseller’s business or in connection with any breach of any provision of these GTC (including) declarations related to the products, or to the products’ use beyond Seller’s allegations, warranties and limitations as set forth in the GTC and in operating manuals), or any other act or omission of the Reseller or its employees or customers.
11. FORCE MAJEURE:
The Seller shall not be held liable for any delay or breach in the performance of its obligations hereunder to the extent that such delay or failure is caused, directly or indirectly, by an event of Force Majeure, including but not limited to strikes, fire, explosion, floods, earthquakes, or in any event outside the Sellers’ control, including difficulties of supply, or changes in applicable regulations.
12. APPLICABLE LAW - COMPETENT JURISDICTION:
All orders entered into under these GTC shall be governed by the laws of France. Disputes which may arise between parties in connection with the formation, the performance or the termination of any order, shall be submitted to the exclusive jurisdiction of the commercial court of Marseilles, France.