General Sales Conditions
As of: 1 January 2023
Contents
- Clause 1 – Scope of application
- Clause 2 – Obligation of the parties
- Clause 3 – Duration of the contract
- Clause 4 – Prices and billing
- Clause 5 – Delivery of products
- Clause 6 – Retention of title and transfer of risk
- Clause 7 – Protection of personal data
- Clause 8 – Repairs
- Clause 9 – Guarantees
- Clause 10 – Liability
- Clause 11 – Insurance
- Clause 12 – Personnel management
- Clause 13 – Undeclared work
- Clause 14 – Non-solicitation of staff
- Clause 15 – Duty of loyalty
- Clause 16 – Refusal
- Clause 17 – Communication
- Clause 18 – Force majeure
- Clause 19 – Subcontracting
- Clause 20 – Headings of clauses
- Clause 21 – No waiver / Exercise of rights
- Clause 22 – Applicable law
- Clause 23 – Disputes
- Clause 24 – General clauses
Clause 1 – Scope of application
The General Terms and Conditions of Sale (hereinafter the “GTC”) govern the contractual relationship (hereinafter the “Contract”) between EAST WEST MEDICAL (hereinafter the “Company”) and the Customer (hereinafter the “Customer”). ) (hereinafter jointly the “Party(ies)”)
The Company markets, in France and abroad, the following used devices: all types of medical devices, such as flexible endoscopes, processors, light sources, trolleys, screens, pumps, as well as accessories and parts from brands such as Olympus, Fujifilm, Pentax, among others (hereafter the “Product(s)”).
The Company also provides the following services (hereinafter the “Services”): the rental of Products, as well as the rental of similar Products, depending on availability, when one or more of the Customer’s Products are being repaired by the Company.
The GTC are systematically communicated to the Customer together with the order form/quotation (hereinafter the “Order Form”). Consequently, the placing of an order for Products and/or Services (hereinafter the “Order”) implies the Client’s full and unreserved acceptance of the said GTC and the Order Form, to the exclusion of any other documents in its possession such as prospectuses, catalogues or advertising brochures. issued by the Company, which shall only have an indicative and non-contractual value
The GTC shall govern the entire relationship between the Company and the Client. No general purchase condition may prevail or be opposed by the Client to the Company. Likewise, no special condition addressed by the Client to the Company may prevail over the GTC, unless formally accepted in writing by the Company.
Any reservations made by the Client on the GTC shall therefore, in all circumstances, unless expressly accepted by the Company, be unenforceable against the Company.
Any provisions derogating from these GCS must be the result of an express agreement between the Parties, evidenced by the Order validated by the Company or any other document recording the agreement of both Parties.
The fact that the Company does not make use of any of the terms and conditions of these GTC shall not be construed as a waiver of the right to make use of any of these terms and conditions in the future.
Clause 2 – Obligation of the parties
Obligations of the Customer
The Client undertakes not to damage the Products supplied by the Company in any way whatsoever.
In the event of damage or deterioration, outside of normal use, of the Products sold or rented, the costs of repair shall be borne by the Customer.
The Client expressly declares that he has received from the Company all the information and advice necessary for the use of the Products and waives the Company’s liability.
The Client undertakes to collaborate closely with the Company and to provide all information, documentation, services, and all means useful for the implementation of the Services and the use of the Products and undertakes to make available to the Company all the elements necessary to satisfy its obligation, including the personnel dedicated to the proper execution of the Services.
In the event of intervention on the Client’s premises for the delivery of the Products, the Client undertakes to give full access to the Company’s personnel responsible for intervening on its premises and to provide them with premises enabling them to carry out the delivery under normal conditions.
The Client undertakes not to alter, in any way whatsoever, the reputation of the Company, the Services and the Products.
The Client undertakes to complete the rental voucher in duplicate upon receipt of the rented/lent Products and to return one copy of the voucher to the Company.
The Client guarantees the Company that it has all the necessary authorisations and approvals for the purchase and/or rental and/or repair of the Products.
Obligations of the Company
Under this Agreement, the Company undertakes to use its best endeavours to provide the Products and Services in accordance with customary practice. This obligation shall not be construed as an “obligation of result” with respect to the repair, as the Company provides this Service only as an obligation of means.
Clause 3 – Duration of the contract
The Contract is concluded by the Parties in accordance with the Purchase Order:
- for a period of 1 (one) week to approximately 5 (five) years of the rental of the Products, the duration being indicated in the Order Form,
- for the time necessary to repair the Products, if any.
The Client may request the Company to extend the rental period of the Products. The Contract will then be renewed for that period.
At the end of the rental/loan period of the Products, the Company will collect the Products at the expense of the Client from the place agreed by the Parties.
Clause 4 – Prices and billing
The Company’s pricing conditions for the supply of the Products and Services are set out in the Order form validated by the Order.
Prices are given as an indication and are therefore subject to change. The prices invoiced are those in force at the time the Customer validates the Order (by signing the Order Form).
The prices of the Products and Services are expressed and payable in Euros or USD and are exclusive of VAT and any other taxes, the Customer being responsible for the payment of such taxes.
Invoices are payable by bank transfer 30 (thirty) days after the invoice date. Without prejudice to any damages, failure by the Client to pay an invoice shall automatically result in :
- The payment of late penalties which will be calculated, from the due date indicated on the invoice until the day of effective payment, at the rate of three times the French legal interest rate.
- In accordance with Article D.441-5 of the French Commercial Code, the payment of a fixed indemnity for collection costs, of a minimum amount of 40 (forty) euros.
- Suspension of the Services subscribed to, after a prior formal notice has remained without effect at the end of a period of 15 (fifteen) working days; this suspension shall not engage the Company’s responsibility. The Company may request, at the Client’s expense, the outright return of the rented Products, or of those for which the price has not been paid in full.
Any request from the Client for additional Services or for any changes of any kind whatsoever shall be the subject of a new Purchase Order to the Company.
Clause 5 – Delivery of products
After the Order has been placed, the Products will be delivered to the Customer.
The Products are delivered in France and abroad. The delivery of the Products is carried out by transport companies such as FedEx, UPS, DHL, TNT, or any other.
The Products ordered shall be delivered to the delivery address indicated by the Customer on the Order. Delivery charges are to be paid by the Client.
The Company reserves the right to split its deliveries. Partial deliveries shall not release the Client from its obligation to pay the price of the remaining deliveries.
The Products shall be delivered within a period not exceeding 2 (two) months from the date of confirmation of the Order by the Company; the delivery date is purely indicative and does not constitute an essential element of the Contract. The Company shall not be liable for the consequences of any delay or failure to deliver for any reason whatsoever.
The Client must ensure that the information communicated remains accurate until the Products have been fully delivered. The Client therefore undertakes to inform the Company of any change in the delivery details that may occur. Otherwise, in the event of late delivery and/or delivery error, the Client may not hold the Company liable. The Client must contact the Company, which will contact the Client for a second delivery at the Client’s expense.
If a Product is returned due to the absence of the Client, the Company will contact the Client for a second delivery at the Client’s expense.
If the Customer believes that he/she has received Products that he/she considers to be defective or non-conforming (e.g. deteriorated, damaged, opened or pierced), he/she must contact the Company, within 48 (forty-eight) hours of receipt of the Products, at the following e-mail address: contact@eastwestmedical.fr, or by telephone at the following number: +33 675 30 17 02, specifying the defect or non-conformity at issue.
The Client shall provide the Company with full justification for the designation of any apparent defects and/or anomalies and shall not intervene himself or call upon a third party for this purpose.
If the defects and/or anomalies are confirmed by the Company, the Company will send the Client instructions on how to proceed and, if necessary, will replace the Products confirmed by the Company to be defective or non-compliant.
Clause 6 – Retention of title and transfer of risk
THE PRODUCTS SOLD REMAIN THE ENTIRE PROPERTY OF THE COMPANY UNTIL FULL PAYMENT OF THE INVOICED PRICE.
RENTED/LENT PRODUCTS ARE THE EXCLUSIVE PROPERTY OF THE COMPANY.
RENTED/LENT PRODUCTS MAY NOT BE TRANSFERRED TO THIRD PARTIES OR SUBLET.
THE CUSTOMER MUST INFORM THE COMPANY IMMEDIATELY OF ANY CLAIMS MADE BY THIRD PARTIES ON THE PRODUCTS, IN PARTICULAR ANY CLAIMS OR SEIZURES.
THE TRANSFER OF RISKS TAKES PLACE, AT THE CUSTOMER’S EXPENSE, AFTER THE TRANSPORT OF THE PRODUCTS.
The Client expressly undertakes to notify all sub-purchasers or transferees of all the contractual provisions of the sale, in particular the aforementioned retention of title clause and the resulting prohibition on paying the price to anyone other than the Company.
The Company may invoke this clause 8 (eight) days after sending a formal notice by registered mail with acknowledgement of receipt which has not been answered. The action for reclamation shall relate either to the Products not yet fully paid for or, in the event of resale or dispossession of the Products, to the claim for the price or part of the price of the Products that has not yet been paid.
Clause 7 – Protection of personal data
Each Party undertakes to comply with the regulations in force applicable to the processing of personal data and in particular the French Data Protection Act of 6 January 1978 as amended by the Act of 20 June 2018 and the European Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 (“GDPR”).
In the context of this Agreement, the Company collects and processes the Client’s personal data and is therefore responsible for the processing of said data. In this respect, the Client’s employees whose personal data is collected by the Company have a right of access, rectification, deletion, portability, limitation of processing and opposition to the processing of their data, in accordance with the applicable legal provisions.
Each of the Parties undertakes not to communicate to third parties any personal data to which it may have access, in particular for commercial prospecting purposes, and will ensure the security and confidentiality of the data.
Clause 8 – Repairs
For Repair Services, the Company will intervene at the Client’s premises.
Repair Services relate to Products sold and/or leased by the Company, as well as Products sold by other companies to the Client.
If during the performance of the Services it becomes necessary to carry out additional repairs, the Company will inform the Client so that a new Purchase Order can be signed.
Clause 9 – Guarantees
The Company guarantees that the Services and Products are provided in accordance with the Order.
Unless otherwise provided by law, all other warranties, express or implied, are excluded.
The Company cannot be held responsible for any guarantee, in particular when the Client has modified or caused to be modified the Product and/or the Services, or when the Client or third parties have intervened on the Products to which the Services are dedicated or on which they are implemented.
Guarantee of conformity
The Company warrants to the Client that the Products and Services comply with the Purchase Order.
All Products on which the Company does not carry out any processing are guaranteed by the manufacturers. The contractual guarantee granted by the manufacturers is only binding on the latter.
The guarantees do not apply in the event of misuse, negligence by the Customer, or if the Products have been subjected to abnormal use, or have been used in circumstances other than those for which they were manufactured, or have not been used in accordance with the instructions provided in the manufacturer’s instruction manual. The warranties also do not apply in the event of deterioration or accident resulting from a shock, a fall, negligence, lack of supervision or maintenance, or in the event of modification of the Products.
Clause 10 – Liability
The Company’s liability is limited to proven direct damage resulting from a defect in the Products and/or Services, or from the non-performance of the Contract.
In no event shall the Company be liable for indirect, incidental or specific damages as defined by the case law of the French courts.
The Company shall not be held liable for non-performance of the Contract in the event of force majeure as defined by the case law of the French courts, and in the event of damage caused by a third party or attributable to misuse or non-compliant use.
In particular, the Company shall not be liable for :
- damage and harm caused by misuse of the Products and/or Services by the Customer and/or any third party.
- any malfunction, error, inaccuracy or erroneous result attributable to the incorrect, unauthorised or incompatible use of the Products and/or Services by the Customer and/or by third parties.
The Client is solely responsible for relations with its partners and patients. In case of conflict, the Company cannot be held responsible.
Except in the case of personal injury or death, and except in the case of gross negligence or wilful misconduct causing proven direct damage or in the case of a breach of an essential obligation of the Contract which renders the Contract null and void, the Client acknowledges that the Company’s liability is limited to the amount paid by the Client for the Order in question
Clause 11 – Insurance
Each Party undertakes to maintain in force, for the entire duration of the performance of the Contract, with a solvent insurance company, an insurance policy guaranteeing damage that may occur to its property and personnel, as well as a policy covering their professional liability (tortious and contractual liability), so as to cover the pecuniary consequences of bodily injury, property damage and consequential loss for which they would be liable, caused by any event and which would be the act of any of their collaborators and / or partner companies during implementation of the Contract.
Clause 12 – Personnel management
Management
The Company’s personnel assigned to the performance of the Contract shall remain under the administrative control and hierarchical and disciplinary authority of the Company throughout the duration of the Contract. The Company shall ensure the supervision and control of its employees, including when the Services are performed on the Client’s premises.
Health and safety
The Company undertakes to do its utmost to ensure that its personnel, when working on the Client’s premises, comply with the Client’s internal regulations and the provisions applicable to external companies present on the said premises, and in particular those relating to health and safety. The Client undertakes to bring these provisions to the attention of the Company.
In the event of access by the Company’s personnel to the Client’s information system, the Company undertakes to comply with the provisions set out in the Client’s applicable IT charter or any other similar document.
Clause 13 – Undeclared work
The Company declares that it is registered with the Registre du Commerce et des Sociétés, as well as with the URSSAF and that its registrations expressly cover all of its activities for the performance of the Contract.
Clause 14 – Non-solicitation of staff
The Parties waive the right to hire or have employed, directly or through an intermediary, any employee of the other Party assigned to the performance of the Contract, regardless of his specialisation, and even if the initial request is made by the employee. This waiver shall apply for the entire duration of the Contract, plus a period of 24 (twenty-four) months from its expiry or termination for any reason whatsoever.
Should one of the Parties fail to comply with this obligation, the defaulting Party shall compensate the other Party (in particular for selection and recruitment costs, training costs, damage resulting from its personal reputation or commitments already made on its own behalf, etc.) by immediately paying the Participant a lump sum equal to the gross annual remuneration that the employee will have received or should have received prior to his/her departure.
Clause 15 – Duty of loyalty
The Parties undertake, throughout the duration of the Contract, to perform their respective obligations faithfully and to seek in good faith all possibilities likely to lead to a rapid and balanced resolution of any problems or difficulties that may arise during the performance of the Contract.
Clause 16 – Refusal
The Company shall not accept an Order from the Client where the Company has already encountered payment problems (non-payment or late payment) with the Client for one or more previous Orders.
Clause 17 – Communication
The Client authorises the Company to mention its name and logo on a list of references that the Company may use on its communication media.
Clause 18 – Force majeure
The Parties agree to recognise as force majeure any event that meets the criteria defined by the case law of the Cour de cassation in application of Article 1218 of the Civil Code. Force majeure may not be invoked for late payment or non-payment by the Client.
Clause 19 – Subcontracting
The Company may subcontract all or part of the performance of the Services to subcontractors. In this case, the Company remains responsible for the provision of the Services to the Client.
Clause 20 – Headings of clauses
The headings of the clauses are inserted herein for convenience only. They shall in no way be regarded as forming an integral part of these clauses nor be construed as limiting the scope of the clauses to which they refer.
Clause 21 – No waiver / Exercise of rights
In the event that one or more of the provisions of this Contract are, for any reason whatsoever, deemed invalid, such invalidity shall not affect any other contractual provision.
The Parties shall replace the said invalid provision with a valid and enforceable provision, in accordance with legal or regulatory provisions, the effect of which shall be as close as possible to the economic result or any other result expected by the Parties.
Proof: the Company and the Client agree that all written documents, in particular electronic documents, exchanged between them as well as all data, in particular technical data, are authentic and validly prove the content of their exchanges and commitments. The dematerialised signature of the Contract is considered binding on the Parties.
The failure of either Party to exercise any of the rights granted by these clauses, or any delay by either Party in exercising such rights, shall not constitute a waiver of such rights. Similarly, partial exercise of any right or remedy available to a Party shall not prevent that Party from exercising that right in full or from exhausting all remedies available to the Party.
Clause 22 – Applicable law
The Contract is governed exclusively by French law; the Vienna Convention on the Sale of Goods is expressly excluded.
Clause 23 – Disputes
Any dispute arising from the interpretation, execution, non-execution, or the effects or consequences of the Contract shall be submitted, in the event of a dispute brought before the civil courts, to the Commercial Court of the Company’s registered office.
Clause 24 – General clauses
The Contract expresses the entirety of the agreements and undertakings of the Parties with regard to their subject matter and replaces any other prior agreement or understanding, whether written or oral, and any information of whatever nature provided prior thereto, having the same subject matter, which shall be deemed null and void.