general conditions of sale

1. DEFINITIONS

GCS: Refers to these General Conditions of Sale (GCS).

CUSTOMER: Refers to any professional buyer ordering PRODUCTS.

SYM: Refers to the company SYMATESE. Company with its registered office at Z.I Les Troques – 69630 Chaponost, France , seller of PRODUCTS.

FORCE MAJEURE: Refers to any external, unforeseeable or irresistible event within the meaning of Article 1148 of the Civil Code.

The following are conventionally assimilated to cases of force majeure: strikes by all or part of the personnel of SYM or its usual carriers, fire, flood, war, production stoppages due to accidental breakdowns , the impossibility of being supplied with raw material, epidemics and pandemics, thaw barriers, roadblocks, strike or rupture of electricity supply, or disruption of supply for a cause not attributable to SYM as well as any other cause of supply disruption attributable to its suppliers.

PRODUCTS: Refers to the PRODUCTS of medical devices, medical accessories and the provision of services marketed by SYM and appearing at the SYM pricelist in force on the date of placing the order by the CUSTOMER.

HEALTH ESTABLISHMENTS: concern any medical care center (e.g Hospitals, Clinics, Medical offices, Doctors, etc.)

2. GENERALITIES

These General Conditions of Sale apply to all offers (including offers by way of pro-forma invoices) and whatever their form (paper or dematerialized format), orders, sales and deliveries of SYMATESE, hereafter referred to as « SYM« .

These General Conditions of Sale prevail over all general clauses and conditions (of purchase) of the CUSTOMER, except in the case of a written agreement to the contrary accepted by SYM. SYM’s General Conditions of Sale are deemed to have been accepted by the CUSTOMER in the absence of an explicit written protest.

SYM reserves the right to adapt these General Conditions of Sale at its best convenience. These changes will always be communicated in writing in the form of a letter, fax or email or updates on its website.

No sale of SYM is exclusive and does not grant distribution or agency rights, unless expressly agreed otherwise.

Specific written agreements between the parties or special conditions (e.g distribution contract, license agreement, etc.) prevail over the terms of the corresponding articles in this document.

3. PURPOSE

These GCS apply to all sales concluded by SYM to CUSTOMERS. They prevail over all the clauses that may appear in the CLIENT’s documents, and in particular his general conditions of purchase, and are applicable for the sale of PRODUCTS in all countries where the CLIENT markets them.

In accordance with the regulations in force, SYM reserves the right to derogate from certain clauses of these GCS depending on the negotiations carried out with the CLIENT, the derogations will then be the subject of a specific written agreement concluded between the SYM and the CLIENT or of conditions particular.

4. ORDERS

4.1 ACCEPTANCE

Sales are only perfect after receipt by SYM of the written order form received from the CLIENT in the form of a letter, fax or e-mail and after express acceptance in writing of the CLIENT’s order by SYM within three (3) working days of receipt of the order (email or fax), sending an acknowledgment of receipt of the order.

Unless the CLIENT observes it within 2 (working) days of the sending of the order acknowledgment, the ORDER will be considered confirmed by the CLIENT.

This acknowledgment of receipt of order will indicate in particular the availability of the PRODUCTS requested and, to the extent possible, the estimated delivery time for each of the PRODUCTS. An order may also be implicitly accepted by the delivery thereof.

4.2 CANCELLATION OR MODIFICATION FOR HEALTHCARE FACILITIES

Any request for cancellation or modification of the order placed by the customer can only be taken into account after the express consent of SYM. The request must be made in the form of a letter, fax or e-mail and must reach SYM no later than 8 (eight) working days after SYM has received the initial order.

In the event that SYM agrees to modify or cancel the order, and in the event that the products have already been delivered to the customer or are in transit, this modification or cancellation will be subject to the return of the products in perfect condition in their packaging. original, within 8 (eight) working days of receipt by the CUSTOMER.

4.3 CANCELLATION FOR COMPANIES

Any cancellation of an order requested by the CUSTOMER can only be taken into consideration if it is received by SYM in the form of a letter, fax or e-mail, at the latest within 2 ( two) working days following the sending of the order acknowledgment. The companies mean companies delivering medical devices to healthcare establishments as defined above.

4.4 MODIFICATION FOR COMPANIES

Any change to an order requested by the CUSTOMER can only be accepted by SYM at SYM’s sole discretion, and only if notified in the form of a letter, fax or email.

In any event, changes can only be accepted if they are notified to SYM no later than 2 (working) days following the sending of the order acknowledgment. After the CLIENT sends a new specific order form, SYM could accept the modification of the order with a possible price adjustment. If accepted by SYM, an acknowledgment of receipt of the amending order will be sent to the CUSTOMER.

5. DELIVERY

5.1 Delivery time

The PRODUCTS are delivered to the address indicated by the CUSTOMER on the order form accepted by SYM.

Delivery will be made according to INCOTERM E.X.W. (« Ex Works ») in Bornel and is deemed to have been made upon signature of the delivery slip by the CLIENT or upon provision of the goods at the agreed place of delivery in the form of a letter, fax or  » an email with the CUSTOMER as described in the order acknowledgment.

The CUSTOMER accepts that the delivery dates of the PRODUCTS are given only as an indication, SYM undertakes to implement the reasonable means at its disposal to meet these dates.

SYM cannot be held liable in the event of late deliveries, delay or suspension of delivery attributable to the CLIENT.

Failing this, other provisions agreed with the CUSTOMER, SYM is authorized to proceed without prior agreement from the CUSTOMER to full or partial deliveries.

For clarity: SYM will not intentionally delay deliveries, but it is possible, in the event of product availability problems, that SYM must distribute the available goods fairly among the various Buyers.

5.2 COMPLAINTS

The CUSTOMER is required to check the apparent condition of the PRODUCTS upon delivery. In the absence of reservations expressly formulated in writing within 5 (five) working days from the date of delivery, the PRODUCTS will be deemed to conform in quantity and quality to the order. Any notification must contain a description of the defect as complete as possible, so that SYM can react appropriately. The defects and the presumed cause must be mentioned, in addition to the catalog number, the description of the good, the serial or lot number and the expiration date. The CUSTOMER must give SYM the opportunity to investigate (or have an investigation carried out) in relation to a complaint.

Any apparent defects must be notified to SYM by the CUSTOMER in the form of a letter, fax or e-mail, within 8 (eight) working days of delivery. Any hidden defects must immediately be notified to SYM by the CUSTOMER in the form of a letter, fax or e-mail, and, in any event, no later than 8 (eight) working days following the discovery of these.

In the absence of such notification within the aforementioned deadlines, the goods are irrevocably considered as being accepted as is by the CUSTOMER and SYM will be deemed to have fulfilled its obligations. If the CUSTOMER notifies a complaint in time, this does not suspend his payment obligation. In this case, the CUSTOMER also remains obliged to collect and pay for the goods ordered.

SYM can in no way be held liable for costs or damages, including direct, indirect, special, accidental or consequential damages incurred or suffered by the CLIENT, as a result of or in connection with a delay in delivery.

SYM will replace as soon as possible and at its expense, the PRODUCTS delivered whose lack of conformity has been duly proven by the CUSTOMER and approved by SYM.

5.3 FORCE MAJEURE

SYM cannot be held responsible for any delay or suspension of delivery attributable to a case of Force Majeure. More generally, neither party will be held responsible for any breach of any agreement governed by the General Conditions of Sale, provided that this is caused by circumstances of Force majeure.

In such circumstances, SYM will inform the CUSTOMER in writing, (fax or email confirmed by registered letter with acknowledgment of receipt), as soon as possible, said notification automatically suspending and without compensation, from the date of occurrence of the event delivery of the Order.

Insofar as SYM, at the time of the occurrence of force majeure, has in the meantime already partially satisfied or will be able to fully satisfy its obligations under the agreement (eg partial delivery), and a separate value is attributed to the part already performed or to be performed, SYM may invoice separately the part already performed or to be performed. The CUSTOMER is required to honor this invoice as if it were a separate agreement.

6. RETURN OF PRODUCTS

No Product will be taken back, for any reason whatsoever, after a period of 30 (thirty) calendar days following delivery.

Sterile and non-sterile Products in their original packaging and not damaged may exceptionally be taken back or replaced according to the procedure prevailing at that time, and only after acceptance and written approval by SYM. Where applicable, the return of PRODUCTS will be organized by SYM at the customer’s expense and must comply with the return terms (products, batches, quantities, packaging and transport methods) communicated by the latter to the CUSTOMER, the condition of the Products being inspected on arrival. A credit note will then be established in favor of the CUSTOMER, with a minimum deduction of 15 (fifteen)% on the value of the Net Prices of the invoice, not applicable to healthcare establishments. In the event of non-compliance with the terms of return, SYM will be automatically released from any obligation to reimburse, replace or compensate the CLIENT. In the event of breach of the distribution contract, the clauses of the contract prevail.

 

7. TRANSFER OF OWNERSHIP – TRANSFER OF RISKS

  • The CUSTOMER undertakes to store the PRODUCTS in conditions suitable for their proper conservation and in compliance with the storage and conservation instructions communicated by the SYM.
  • The risks will be borne by the CUSTOMER from the receipt and acceptance of the PRODUCTS by the CUSTOMER.
  • In the event that a third party initiates a seizure / claim procedure against the CLIENT, the latter will notify the third party of the existence of a retention of title clause in favor of SYM and will immediately notify SYM of the ‘existence of such a procedure so that the latter can repossess the PRODUCTS.
  • The goods delivered by SYM covered by the retention of title clause cannot be resold or used as a means of payment.
  • The CLIENT is not allowed to pledge or encumber in any other way the goods covered by the retention of title clause.
  • The CLIENT must always do everything that can be reasonably expected of him to safeguard the property rights of SYM.
  • The CUSTOMER undertakes to insure and keep insured the goods covered by the retention of title clause against fire, damage caused by explosions and by water as well as against theft and the policy of this insurance must be able to be submitted to SYM on its first request. In the event of possible compensation by the insurance, SYM is entitled to these amounts. As far as necessary, the CUSTOMER undertakes in advance vis-à-vis SYM to provide assistance to the latter with regard to anything that is or seems necessary or desirable in this context.
  • In the event that SYM wishes to exercise its property rights as described in this article, the CUSTOMER gives in advance irrevocable and unconditional authorization to SYM or to third parties designated by SYM to access all the places where the goods are located. owned by SYM and to recover these goods.

8. COMPLIANCE WITH COMMERCIAL LEGISLATION

Products which are delivered under this agreement may not be exported, re-exported, sold or transferred. Any use, sale or distribution, direct or indirect, must comply with the applicable legal provisions.

SYM and the CUSTOMER undertake to comply with all applicable legal provisions, including, but not limited to, export control laws with regard to the sale, resale, dispatch and cross-border transfer of goods. SYM’s obligation to deliver the goods to the CUSTOMER is dependent on obtaining the required licenses or authorizations.

If a license or authorization from a government or other authority is required for the acquisition of the Products, the CUSTOMER must obtain the license and authorization at its own expense unless otherwise contractually stipulated and, if SYM does so, request, provide proof to SYM. Failure to obtain a license or authorization does not give the CUSTOMER the right to withhold or defer payment of the price of the goods. Any costs or charges incurred by SYM following such a defect will be borne by the CUSTOMER or reimbursed to SYM by the CUSTOMER if SYM should advance such costs.

9. PRICE AND PAYMENT

9.1 PRICE

The price of the PRODUCTS appearing on the general tariff of SYM is given as an indication and are expressed in EUROS (currency EUR)

An invoice will be established and issued on each delivery on the basis of the prices in force when the PRODUCTS are shipped to the CUSTOMER by SYM.

All prices are net and are exclusive of VAT and any other levies decided by an authority. The prices become final upon receipt of the order or after receipt of a written agreement from the CUSTOMER.

Additional costs resulting from urgent shipping requests (express costs in particular) will be invoiced in addition to the CUSTOMER. By « express request » is meant a request for delivery in less than 2 days.

The prices are understood to be exclusive of tax, VAT at the statutory rate extra, if applicable, and ex works.

Prices being EXW, delivery costs are the responsibility of the CUSTOMER, unless otherwise agreed

9.2 TERMS OF PAYMENT

Invoices issued by SYM will be payable for their net amount, without remission or discount, on the due date mentioned on the invoice or failing that within thirty (30) calendar days of the date of issue of the invoice.

In the event of default, total or partial, of the amounts due on the due date, the CLIENT must pay SYM a late payment penalty equal to the refinancing rate of the European Central Bank (ECB) increased by 10 percentage points, and a fixed compensation of forty (40) euros. They are due in the absence of payment the day following the date of payment appearing on the invoice. The penalties will be applied to the amount including tax remaining due, without any prior notice being necessary.

In addition, in the event of non-compliance with the terms of payment appearing above, SYM reserves the right to suspend or cancel the delivery of orders in progress by the CLIENT.

All the costs incurred by SYM for the recovery of the sums due by the CLIENT will be invoiced in addition to the CLIENT.

Any bank charges linked to payments will be borne by the CLIENT. The method of covering bank charges in the event of a transfer will be « OUR » (fully payable by the CLIENT who initiated the payment). The same applies to any exchange costs borne by the CLIENT.

9.3 OWNERSHIP RESERVE CLAUSE

SYM reserves, until full payment of the price by the CUSTOMER, a right of ownership over the PRODUCTS sold, allowing it to regain possession of said PRODUCTS. Any deposit paid by the CUSTOMER will remain acquired by SYM as a lump sum compensation without prejudice to any other actions that it would be entitled to bring as a result against the  CUSTOMER

10. GUARANTEE AND LIABILITY

10.1 GUARANTEE AND LIABILITY

SYM guarantees that the PRODUCTS delivered comply with the regulations in force and the specifications stipulated in the PRODUCT notices. This warranty covers the non-conformity of the PRODUCTS to the order and any hidden defect resulting from a material, design or manufacturing defect affecting the PRODUCTS delivered and rendering them unfit for use. SYM’s possible indemnification obligation in accordance with this article is always limited to the purchase price of the non-conforming Product (s) or of the defective part of the good.

Regarding the non-compliance of the PRODUCTS with the order, any complaint must be notified to SYM within 2 (two) working days after the delivery date to the following email address: sacomplaint@symatese.com

Any warranty is excluded in the event of misuse, negligence, lack of maintenance or storage, modification of the PRODUCT on the part of the CUSTOMER as in the event of normal wear and tear of the PRODUCT or of FORCE MAJEURE.

In addition, SYM’s liability is expressly excluded in the event of re-sterilization of a PRODUCT, use of a sterile PRODUCT whose packaging is damaged or use of a PRODUCT after its expiration date.

10.2 TRACEABILITY

The CUSTOMER is required to set up a traceability system with a register allowing SYM to locate the PRODUCTS, this obligation of traceability will last for at least fifteen (15) years after the marketing of the last device supplied by SYM.

10.3 INCIDENTS AND CUSTOMER COMPLAINTS

The CUSTOMER must immediately inform SYM as soon as he becomes aware of any complaint or report from healthcare professionals, patients, users or third parties, of suspected injuries to a patient (including incidents and risk of injury) or death related to the use of the Products, in a written form. The risk of incident or the incident is defined as an incident involving a medical device likely to lead to a deterioration in the state of health of a patient, a user or a third party. Incidents or risk of incidents are reported to SYM, and communicated to the main email address: sacomplaint@symatese.com . The CUSTOMER must cooperate to ensure promptly and effectively that incidents / risks of incidents and customer complaints are properly investigated.

11. INCIDENTS AND CUSTOMER COMPLAINTS

Unless otherwise agreed in writing, all Products will be sold or resold in packages or packaging in which they were delivered by SYM and, under no circumstances, a mark other than the mark present on the goods at time of delivery cannot be affixed by the CLIENT in relation to the goods, or the mark present on the goods  at the time of delivery modified by the CUSTOMER.

The agreement does not grant any right or license to the CUSTOMER by virtue of a patent, trademark, copyright, registered design or any other intellectual property right, with the exception of the right to use or resell goods.

SYM reserves all rights and prerogatives that are its own under copyright law and other intellectual property laws or regulations. SYM has the right to use the information it has collected in the context of the execution of an agreement also for other purposes, provided that, in doing so, no strictly confidential information of the CUSTOMER is brought to the attention of knowledge of third parties.

12. PROTECTION OF CUSTOMER DATA

The CUSTOMER authorizes SYM to use confidentially and within the sole framework of the management of the CUSTOMER account personal information concerning him and particularly relating to the control of credit references, the verification and updating of data, invoicing , control of credit limits, return of PRODUCTS, credit notes, delivery notes and direct mail relating to PRODUCTS, services and commercial conditions of SYM. This information will be treated confidentially by SYM and will only be revealed to third parties if required by law or if these third parties process this information on behalf of SYM in accordance with the applicable data protection principles. Personal data protection laws and practices may differ, and these laws may not provide the same level of protection outside the European Economic Area. By executing the transaction, the CLIENT agrees, in his own name and in the name of his employees – the CLIENT will duly inform them – in the exceptional cases where such an agreement is necessary, as to the use, disclosure or transfer of personal data.

The CUSTOMER can access his personal information and request its rectification at any time by sending a written request to SYM.

13. INTUITU PERSONAE

Orders for PRODUCTS by the CUSTOMER are of an intuitu personae nature and their benefit cannot be transmitted to a third party without the express prior authorization of SYM.

14. TERMINATION

SYM may terminate with immediate effect any agreement governed by the General Conditions of Sale, without any obligation on its part to pay any compensation or compensation, if:

  • the CUSTOMER remains in default to pay on the due date, SYM not having to comply with a notice period, or if
  • the CUSTOMER has committed a serious violation of any clause of the General Conditions of Sale and has not remedied this violation within fifteen (15) calendar days of notification of this violation, or if the CUSTOMER is, or risks falling into bankruptcy or being insolvent, or if one of the following proceedings is initiated against him or by him: bankruptcy proceedings, proceedings in accordance with the law on the continuity of companies, legislation relating to the ‘insolvency or a reorganization, sequestration, liquidation, dissolution or transfer of ownership procedure.

15. MODIFICATIONS

With regard to existing agreements relating to orders already made, the General Conditions of Sale can only be changed or modified by means of a written agreement (e.g Distribution contract), duly signed by SYM and by the CUSTOMER. Regarding agreements relating to new orders, SYM reserves the right at any time to modify this version of the General Conditions of Sale. Modified versions come into force as soon as they are put into circulation.

16. APPLICABLE LAW – JURISDICTION ALLOCATION CLAUSE

By express agreement between the parties, these General Conditions of Sale (CGS) and the resulting purchase and sale transactions are governed by French law.

All disputes to which these CGS may give rise concerning their validity, interpretation, execution, termination, consequences and consequences will be submitted to the Commercial Court of BEAUVAIS (France).

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