GENERAL TERMS AND CONDITIONS OF SALE

1.General clauses

Any sale, offer of sale, rental, or offer of rental, whether agreed by Echosens to be executed or delivered in France or abroad, concerning any product or Medical Device as defined by the French Public Health Code manufactured by Echosens (30 Place d’Italie, 75013 Paris, Registered as No. 438 209 157 in the Paris Register of Companies) to a physical person or legal entity, whether French or foreign, must be subject to these general conditions.

All general conditions (particularly conditions of sale) of the purchaser/customer are not enforceable on Echosens, except those that Echosens has already expressly accepted in writing and signed.

Echosens reserves the right to modify the general conditions of sale unilaterally at any time. The general conditions of sale applicable between Echosens and any purchaser, distributor, or agent shall be those in force on the date when Echosens sends an offer of sale of its products to the potential buyer concerned.

2.Incorporation of the General Conditions of Sale into any offer and order

The present general conditions of sale are automatically incorporated as of right and are indissociable from any quotation or offer of rental or sale, orders placed in execution of a framework contract of purchase or distribution that Echosens might formulate for any of its products. They apply to any order accepted by any customer and are agreed upon for the time required for the supply of the products specifically ordered and until the expiry of the contractual guarantees provided by Echosens in application of the present general conditions of sale.

Failing the prior reception by Echosens of express written acceptance of the offer or quotation signed by the recipient, Echosens shall have no obligation towards the recipient with regard to the offer or quotation concerned.

3.Price, terms of payment, penalties

Prices are stated in euros excluding tax and shipping charges, and are valid only for a period of three (3) years from the date of the quotation or offer issued by Echosens.

Starting from the date shown on the quote or bid sent by Echosens, the purchaser (or lessee) shall have three months to confirm to Echosens in writing (with signature) its acceptance of the offer or to place an order; bearing in mind that Echosens reserves the right to revoke any offer or bid concerning any of its products, until such time as confirmation or an order has been received. Echosens shall not accept any liability for revoking an offer, whatever the reason.

The lessee is not entitled to deduct any sum or amount in the name of any compensation or claim, unless the principle of the compensation, its validity and the amount of such sums received prior and precise written agreement from Echosens. Payment of any invoice due to Echosens must be made according to the conditions indicated on the invoice. Subject to written agreement between Echosens and the customer stipulating a shorter payment time, any invoice issued by Echosens must have been paid in full by the customer no later than 30 days from date of invoice.

No discount shall be granted for early payments. Payment shall be made in euros by bank transfer or bank cheque, unless the invoice expressly stipulates a different currency.

If the purchaser of a product and/or service from Echosens should default, even partially, in the payment on time of any sum due to Echosens, Echosens reserves the right to suspend any delivery to the purchaser, without notice or any prior formalities, until the purchaser has fully and actually paid Echosens all the amounts due, and to repossess the equipment delivered. In that case, the purchaser would also automatically, as of right and without any particular formality, lose the benefit of the remainder, and Echosens may demand immediate payment of the balance of the price of the product and/or service. The purchaser shall pay all the costs incurred by Echosens to recover the amounts due, with a minimum fixed charge of 40 euros (ex tax) per non-payment incident or product repossession by Echosens.

In the event of late payment, the purchaser must also pay Echosens:

-First, late payment interest equal to three times the statutory interest rate plus 3.00% calculated as from the day after the due date of the totally or partially unpaid payment, as shown on the invoice, including for amounts left unpaid after the contractual due date,

-And, secondly, the purchaser shall own Echosens, as of right, under the penalty clause, compensation in the amount (ex tax) of 10% (ex tax) of the full amount remaining due, including the proportion of the price concerned at the end of the term.

4.Delivery time and place: risk transfer

Delivery times for an Echosens product are indicated to the purchaser for information only. Failure to meet this provisional deadline cannot under any circumstances render Echosens liable, oblige it to compensate the purchaser, or give the purchaser grounds to cancel the order.

Echosens shall deliver the products to the address indicated by the purchaser (the ‘Installation Site’) either in (i) the accepted quotation or the purchase order, or (ii) the contract signed by Echosens and the purchaser.

According to the INCOTERMS (International Commercial Terms) defined in the quotation, the signing by the purchaser or any third-party representative of any delivery note or receipt at any location shall automatically entail as of right the transfer of custody and taking possession in the name of and on behalf of the purchaser of the Echosens product delivered (including if the items are delivered to a third party representing the purchaser). This delivery and taking possession shall automatically entail as of right the transfer of risk exclusively to the purchaser, who shall then become the custodian of the product(s) delivered..

The purchaser or its third-party representative must check the condition of the packages and their contents at the time of delivery. In case of damage or missing products, the purchaser must record details of any reservations in writing on the delivery note within three (3) business days from the actual date of delivery of any Echosens product and must confirm them in writing within three business days of the delivery, via letter or e-mail to Echosens, and by registered letter with return receipt sent to the carrier.

Echosens must deliver the products in good working order, with the user guide necessary for their operation.

5.Retention of ownership

Echosens maintains ownership of the goods sold until the actual collection by Echosens of the full price of any Echosens product. Notwithstanding the retention of ownership, during the period between delivery and transfer of ownership, the risks of loss and damage to the goods sold, theft or destruction, and any damage which may be caused by the products, are the sole responsibility of the purchaser.

Failure by the purchaser to fulfil any of its payment obligations, for any reason whatsoever, gives Echosens the right to demand the immediate return of the products delivered, where the purchaser must pay all costs and fees and exclusively assume all risks.

6.Contractual guarantee on an Echosens product

Echosens promises the customer/purchaser that it shall carry out any servicing and repairs on the products during the contractual Guarantee Period granted by Echosens for its products, under the terms and conditions set forth below.

The present contractual guarantee shall apply to all damage suffered by the product or malfunctions resulting from product manufacturing defects or defective parts, provided that the products have been used in compliance with (i) the intended use of the product and (ii) Echosens recommendations and, finally, have been used (iii) by personnel having received the mandatory product training in accordance with the user guide delivered with each product.

Duration of contractual guarantee: the guarantee granted by Echosens has the following time limits:

1) New Product or Equipment and standard exchange: 12 months,

2) Replacement parts: 12 months (including for a repair),

3) Second-hand product, equipment, or part: 6 months,

4) Repair of a new product: three months for labour and 12 months for new spare parts.

The contractual guarantee period shall begin by the later of the following two dates, according to the case: either the date of delivery by the carrier (see Section 4 above) or the date shown on the Installation Certificate (when installation of the delivered product is required).

When product installation is required (including on the site of the direct purchaser's customer), the installation must have been performed in strict compliance with the installation instructions defined in the Installation Guide drawn up and sent to the purchaser by Echosens.

The Installation Certificate, dated and signed by two parties (either Echosens and the purchaser or the purchaser and its end customer) must be drawn up and a copy must always be sent to Echosens. The date of acceptance of delivery for a product not subject to installation or the date on the Installation Certificate for an installed product shall be the sole date from which the contractual guarantee runs.

The contractual guarantee cannot under any circumstances extend beyond 18 months from the delivery date (see Section 4 below).

In the event of replacement or repair of a component of a product during the contractual guarantee period mentioned above, the guarantee period for this replaced part shall be extended until the expiry of the guarantee applicable to the replacement part.

In the event that an Echosens product is sold indirectly to an end customer by an Echosens distributor, the contractual guarantee on the product sold indirectly, borne by Echosens,cannot under any circumstances exceed the term stipulated in the present guarantee and can certainly not create any obligation for Echosens towards the distributor’s end customer.

Echosens cannot under any circumstances be bound by any contractual guarantee on its products other than the one defined in the present document.

Contractual guarantee exclusions: this guarantee shall prevail over any other guarantee, whether written, oral, express, or tacit. No express or tacit guarantee is granted by the present document concerning the market value of the products or their fitness for a particular purpose other than the intended use of the product stated in the user guide for each Echosens product.

The contractual guarantee does not cover the following:

-Transducers that may enter into the composition of products, defects or failures (including a failure to comply with product specifications) that may result in whole or in part from alteration, storage, of keeping in unsuitable locations or conditions,

-Maintenance or use of products by a person other than the authorized persons,

-Damage to the products due to failure to observe the written recommendations or instructions given by Echosens concerning the use and storage conditions of the Echosens product,

-The use or combining of an Echosens product with any object or data not previously authorized in writing by Echosens,

-Any alteration, modification, or repair carried out by the customer or by a person not authorized or not certified by Echosens or by a distributor not certified for Echosens products, the use of an inappropriate voltage when connecting the products to a power source, any cause external to the Echosens product or outside the reasonable control of Echosens,

-Any aesthetic damage; call-out fees for on-site servicing and any costs related to the repair or replacement of the products or their replacement parts.

Note that these General Conditions of Sale specifically stipulate that probes of any model are especially fragile components that must be handled with extreme care in accordance with the user instructions given in the user guide for each Echosens product. The probes of an Echosens product are not under any circumstances covered by the contractual guarantee in the event of breakage or destruction resulting from mishandling or any other non-compliant use leading to damage of any type, or breakage or corrosion of the probe.

Moreover, calibration operations concerning the probes cannot arise from and are not under any circumstances covered by the present contractual guarantee. Any probe calibration operation on an Echosens product is exclusively considered to be a specific service or maintenance operation of an Echosens product under independent contractual conditions which are strictly separate from the guarantee applicable to Echosens products and/or services.

ECHOSENS SHALL NOT UNDER ANY CIRCUMSTANCES BE HELD LIABLE FOR ANY DAMAGE OR LOSS RESULTING FROM THE LATE SUPPLY OF A PRODUCT, SERVICE, OR OBLIGATION INCUMBENT ON IT UNDER THE TERMS OF THE PRESENT DOCUMENT AND THE REPAIR OF PRODUCTS. LIKEWISE, ECHOSENS SHALL NOT BE HELD LIABLE FOR DAMAGE RESULTING FROM A VIOLATION OF THE TERMS OF THIS GUARANTEE NOT COMMITTED BY ECHOSENS OR UNDER ITS DIRECT AND PERSONAL RESPONSIBILITY.

Limitation of liability: Subject to the specific system concerning liability for defective products stipulated by Articles 1386-1 et seq. Of the Civil Code and the applicable guarantee under French law concerning hidden defects (Article 1641 of the French Civil Code), the maximum financial amount for which Echosens, in its capacity as manufacturer and/or seller of an Echosens product, shall be liable, for all losses caused by the products, is under any circumstances limited to the price of the product ordered by the purchaser and actually collected by Echosens from the purchaser for the product concerned.

Availability of service: In the event that this guarantee is invoked, the purchaser must contact Echosens or its local distributor. Within the limits of the guarantee defined in the present article, Echosens shall make every reasonable effort to provide to the customer or local distributor, in cases of indirect sale to an end customer of the distributor, the services stipulated within the present contractual guarantee for the Echosens product; with the proviso that all service calls by Echosens shall take place during its business hours and during business days defined by French law.

Guarantee certificate: The purchaser, including in case of indirect sale by the purchaser to the end customer, undertakes to duly fill in, date, and sign the documents concerning INCOTERMS (in particular the delivery note, acceptance note, etc.) and, if installation of the product is necessary, the Installation Certificate; with a copy to be sent to Echosens within three (3) days of installation as proof that the products have been installed. In the event that the purchaser should not comply with this obligation, the start date of the contractual guarantee shall be the date written by the carrier on the delivery note for the package(s) containing the Echosens product.

Materials vigilance concerning an Echosens product: In application of French law (Articles L5211-1 et seq. of the Public Health Code) concerning Medical Devices, including Echosens products, Echosens in its capacity as manufacturer, as well as the purchaser and the end users (where applicable, direct customer of the purchaser), should they become aware of an incident or risk of an incident involving a device leading to or likely to lead to death or serious harm to the health of a patient, user, or third party, must:

  • Without fail and immediately inform Echosens in writing of any incident likely to be of relevance to the materials vigilance obligation applying to an Echosens product,
  • Promptly report the incident to the French administration specifically concerned, i.e. the ANSM (national agency for the safety of drugs and healthcare products).

The purchaser must personally and/or, where applicable expressly inform in writing its end purchaser(s) or user(s) of an Echosens product of this specific obligation so that they can observe it in practice alongside Echosens.

7.Declaration of compliance with anti bribery – economic sanctions & export control laws

In case of distribution of any Echosens product or service by a third party (hereafter “Distributor”), it is expressly agreed that all activities of Distributor will be conducted in full compliance with all applicable laws, including applicable anti-bribery, economic sanctions and export control laws and regulations maintained by European Union member states, the United States of America and other jurisdictions which may be related to the activities covered by any distribution agreement. In particular, Distributor agrees that none of activities covered under any distribution agreement will involve any persons targeted under economic sanctions laws or regulations maintained by any applicable government including, but not limited to: the EU Consolidated List of Persons, Groups of Entities, the US List of Specially Designated Nationals, the Australian Consolidated List, and the United Nations Security Council List (collectively, “Sanctioned Persons”). If any activity to be conducted under any distribution agreement may involve Sanctioned Persons or may be in violation of applicable anti-bribery, export control or economic sanctions laws or regulations, Distributor agrees that no such activities will be conducted unless and until authorization has been obtained from Echosens and, if necessary, all relevant governmental authorities.

In every case, Distributor is aware that he must provide Echosens with every relevant license and / or authorization duly obtained.

 

8.Order cancellation and returning Echosens products

No unilateral cancellation of the order by the purchaser without the written agreement of Echosens shall be accepted. Any order cancellation, for whatever reason, concerning an order previously accepted in writing by Echosens, shall give rise only to the reimbursement of amounts actually paid by the purchaser to Echosens. No compensation may be demanded by the purchaser with regard to this cancellation. In the event that the purchaser should cancel the order without written agreement from Echosens, acceptance of the cancellation shall automatically and as of right give rise to a fixed and non-negotiable compensation payment payable by the purchaser to Echosens in the amount of (i) 10% of the ex-tax total of the order and acquisition of the deposits paid in addition to the non-negotiable fixed compensation payment and (ii) any return costs paid by Echosens.

No returns of Echosens products shall be accepted without prior written agreement from Echosens, and its after-sales department in particular.

 

9.Force majeure

 

Echosens shall not be held responsible for any lateness or failure to execute its obligations in the event of force majeure as defined under French law. The following events are most notably considered as cases of force majeure for the purpose of application of the present terms and conditions: natural disasters, storms, fire, explosion, flood, national strike action, accident, hijacking of an aircraft or other means of transport, riot or serious civil or social unrest, state of war, abnormal delay, stock running out or interrupted supply for which a supplier of Echosens is responsible, or shortage of products and materials.

 

10.DISPOSAL OF WASTE FROM ELECTRICAL AND ELECTRONIC EQUIPMENT AND MEDICAL WASTE

 

In compliance with the clause 5 of the European Directive 2012/19/UE dated 4 July 2012, relative to electrical and electronic equipment and the disposal of waste from such equipment, Echosens, as producer, shall provide for the collection of such waste. The European Directive 2012/19/UE is applicable to all European Members States as from 14 February 2014. In compliance with the clause 13 of the European Directive 2012/19/UE dated 4 July 2012, Echosens shall assume the financing of the costs for the collection, treatment and recovery only for the equipment placed on the market after 13 August 2015. The dedicated conditions of collection are mentioned in the User Guide of every equipment.

11.Intellectual and Industrial Ownership

 

The placing of an order by a purchaser/customer and the delivery of an Echosens product does not confer and/or does not transfer to the latter any intellectual (copyright, trademark, etc.) or industrial (patent) property rights with respect to any of the Echosens products delivered.

12.Applicable law and election of jurisdiction

The present general conditions of sale and any sale of an Echosens product by Echosens, including in case of international sale, are expressly and exclusively subject to French law.

In the event of a dispute and in the absence of an out-of-court settlement, all disagreements concerning the formation, execution, and termination of contractual obligations between the parties shall be subject to the jurisdiction of the competent Court in Paris.

[October 2016]