General Terms of Sale and Delivery of Service – ACNIS International

1 – Scope

1.1 These general terms of sale and delivery of service (hereinafter referred to as the “General Terms”) constitute, pursuant to article L.441-6 of the French Commercial Code, the basis for commercial relations between the parties.

1.2 The aim of these General Terms is to define the conditions according to which the company ACNIS International supplies its products (hereinafter referred to as the “Products”) and delivers its services (hereinafter referred to as the “Services”) to its professional buyers (hereinafter referred to as the “Customers”).

1.3 In the event of any contradiction between these General Terms and the General Terms of Purchase of the Customer, the parties hereby agree that these General Terms shall prevail in full.

1.4 The specifications set out in the brochures, commercial leaflets and documentation of ACNIS International are provided for information only and serve as a guide, without being legally binding.

2 – Orders

2.1 The characteristics of the Products are those specified in the order form accepted by both parties and/or the ACNIS International offer. All orders for Products or Services (hereinafter referred to as the “Orders”) are subject to written acceptance or processing by ACNIS International.

The sale shall only become complete and/or the contract shall only be formed (hereinafter referred to as the “Contract”) further to written acceptance or processing of the Order by ACNIS International.

2.2 Once the Contract is formed, the Customer may not waive its Order or change such Order without the written agreement of ACNIS International. Any change made by the Customer to the initial Order shall be deemed to constitute a change in offer and the Order will not have to be fulfilled if ACNIS International does not wish to do so.

2.3 In accordance with the practices of the profession, ACNIS International reserves the right to deliver the quantities ordered with a tolerance range of +/-10%. The Customer undertakes to pay the price corresponding to the quantity delivered.

3 – Prices

3.1 Prices are quoted for Products which are unpacked and weighed ex works and exclusive of tax (customs duties, VAT or miscellaneous taxes). Prices are calculated on the basis of laws, regulations, usages, duties, taxes and carriage conditions in force upon the date of sale. They are defined per kilogram or per metre, unless otherwise agreed between the parties in the Order.

3.2 Prices are fixed in Euros, unless otherwise expressly agreed by ACNIS International and the Customer. If the quote is given in another currency, it is given on the basis of the current exchange rate between such currency and the Euro upon the date of written acceptance of the Order.

3.3 ACNIS International reserves the right to modify its tariffs at any given time, after informing its Customers beforehand, subject to any Orders in progress. Consequently, the applicable prices are those in force upon the date on which the Customer places the Order.

4 – Delivery – Carriage – Acceptance

4.1 Unless otherwise specified, the Products sold by ACNIS International travel at the Customer’s own risk, as of their departure from the ACNIS International warehouses until the place of delivery agreed upon between the parties. Upon the Customer’s request, ACNIS International may provide the name of the carrier.

4.2 In the event of late delivery, damage to Products or missing Products, the Customer must make all of the usual reservations, more specifically on the delivery slip and must confirm such reservations to the carrier in writing within three days, by registered mail with official receipt copied to ACNIS International (article L.133-3 of the French Commercial Code). Split deliveries are possible and the Customer may not object to same.

4.3 Notwithstanding the measures that the Customer must take with regard to the carrier (see paragraph above), any claims made by the Customer in relation to any visible defects and/or non-compliance of the Products subject to the Order (more specifically incorrect quantities or references), may only be considered if they are made in writing, by registered mail with official receipt within ten (10) calendar days of receipt of the Products. Beyond this deadline, the Products delivered shall be deemed to comply with the terms of the Order and no claims relating to visible defects or compliance of the delivered Products shall be considered by ACNIS International. It is up to the Customer to provide all supporting documents with regard to the actual existence of the observed defects or non-compliance.

5 – Delivery Lead-Times

5.1 The delivery lead-times are given as an indication only. They depend, inter alia, on the sequence in which Orders are taken, sourcing possibilities and the availability of carriers.

5.2 No delays in delivery may justify any claims for the payment of penalties or compensation (more particularly administrative costs) against ACNIS International, or any cancellation of the Order by the Customer, unless otherwise agreed between  ACNIS International and the Customer.

6 – Product Returns

6.1 All returns are subject to the prior written agreement of ACNIS International. The Customer bears all the expenses and risks related to returns, unless these returns are due to the fault of or an anomaly directly attributable to ACNIS International.

6.2 Should the parties fail to agree on the compliance of the Products, they shall call upon a laboratory chosen by mutual agreement to carry out an expert assessment on an amicable basis. Failing any mutual agreement between the parties, the inspection of the Products shall be entrusted to CRITT, the independent laboratory accredited by the public authorities.

6.3 The laboratory inspection of the delivered Products must be carried out within fifteen (15) days of receipt of the Products; failing this, the Customer shall be deemed to have waived its right to submit the Products for expert assessment.

7 – Payment

7.1 Subject to the specific provisions laid down in the confirmation of the offer, the Products shall be paid for within a maximum of thirty (30) calendar days from the invoice issue date.

7.2 Invoices must be paid net, with no offsetting or discounting whatsoever and ACNIS International shall incur no bank charges other than those charged by its own bank.

7.3 All amounts which remain outstanding upon the due date specified in the invoice shall automatically give rise, with effect from the day following the due date specified in the said invoice, to the application of (i) penalties for late payment equal to the interest rate applied by the European Central Bank to its most recent refinancing exercise with a mark-up of ten (10) percentage points and (ii) fixed compensation for recovery costs amounting to forty (40) Euros.

7.4 In the event of any amounts outstanding on due date as set out in subsection 7.3 above, the payment of all other amounts payable by the Customer shall become due immediately, even if they are subject to agreed instalments.

7.5 The first delivery is subject to payment before shipping and subsequent conditions are subject to acceptance of the Customer by credit-insurance when the Order is placed. If the financial situation of the Customer leads to reconsideration of this insurance, ACNIS International is entitled to refuse the sale or to demand further guarantees in order for the sale to take place.

8 – Retention of Title

8.1 ACNIS International shall retain full ownership of the Products until effective payment of their full price – principal and ancillary costs – by the Customer, it being hereby expressly stated that all risks shall be transferred to the Customer according to the agreed incoterm and by delivery to the Customer’s premises at the latest.

 9 – Force Majeure

9.1 Should a case of force majeure arise (an unforeseeable, unavoidable and external event), ACNIS International reserves the right to suspend the performance of the Orders in full or in part without delay, until such case of force majeure ceases to exist. For the purposes hereof, the parties understand cases of force majeure to include, inter alia, events such as strikes affecting all or part of the ACNIS International sites, power cuts or shortages, cuts or shortages in raw material supplies, fires, floods etc.

10 – Liability – Guarantees

10.1 The Products supplied by ACNIS International are guaranteed against any material defect for a period of six (6) months with effect from their delivery to the Customer’s premises or their release from the ACNIS International warehouses.

For the purposes of this guarantee and in the event that ACNIS International is held liable, the sole obligation incumbent upon ACNIS International is limited to the replacement of the Products which are acknowledged as defective by ACNIS International, to the express exclusion of any other compensation whatsoever.

Pursuant to this guarantee, in the event of replacement, the Products that are deemed to be defective shall revert to the ownership of ACNIS International.

Any defects or damage resulting from normal wear, an external incident, abnormal use, improper or inappropriate storage or warehousing, or any modifications to the Products which are not planned or specified by ACNIS International in the specific terms and conditions, are excluded from this guarantee.

10.2 ACNIS International shall not in any event be held liable for any indirect and/or immaterial prejudice of any nature whatsoever which may be caused by the Products and/or Services, such as, inter alia, labour costs, loss of business, earnings, orders, customers, damage to reputation, any claims made by third parties etc.

10.3 In any event, the liability of ACNIS International  shall be limited (i) solely to direct loss incurred by the Customer and attributable exclusively to the Products and/or Services, and (ii) to twice the amount exclusive of tax actually paid by the Customer for the purchase of the Products and/or the delivery of the Services concerned.

10.4 Failing any express provisions to the contrary, the Customer shall remain solely liable for the use of the Products supplied by ACNIS International and the appropriateness of their purpose. The Customer, in its capacity as a professional, undertakes to take out insurance that provides sufficient coverage for its activity.

10.5 Any information supplied by ACNIS International pursuant to the requirement for all distributors to provide advice and information, may never render it co-designer or co-manufacturer of the finished assembly in which the Products are used.

10.6 Should the Products be used for medical applications, the Customer waives the right to bring any claims against ACNIS International and undertakes to obtain the same waiver from its insurers for any amount in excess of ACNIS International’ liability ceiling. This provision applies, inter alia, to the removal/replacement of prostheses.

11- Code of Conduct

ACNIS International undertakes to abide by the practices that comply with local or international rules relating, inter alia, to human rights, child labour and anti-corruption provisions.

12- Governing Law and Jurisdiction

12.1 These General Terms are governed by French law, it being hereby specified that the application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

12.2 Any disputes which may arise with regard to the interpretation, validity, performance or termination of these General Terms and which may not be resolved by amicable settlement between the parties hereto, shall be referred to the Commercial Court of Lyon which shall have exclusive jurisdiction, even in the event of actions on guarantees or multiple defendants.

13 – Language

13.1 These General Terms may be translated for the convenience of the Customer.

13.2 Between ACNIS International and a French Customer, only the French version of these General Terms shall be legally binding. Between ACNIS International and a foreign Customer, only the English version of these General Terms shall be legally binding.

14 – Severability Clause

14.1 Should any one of these provisions be cancelled by a competent authority, the said provision shall simply be deemed to be unwritten and all other provisions shall remain binding upon the parties.

14.2 ACNIS International and its Customer shall negotiate in good faith with a view to drafting a new provision intended to replace the cancelled provision.