1st October 2020
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, Medical Device or service (the “Products”) as defined by the French Public Health Code manufactured by Echosens (6, rue Ferrus – 75014 Paris, Registered as No. 438 209 157 in the Paris Register of Companies) to a physical person or legal entity (the “Buyer”) whether French or foreign, must be subject to these general conditions.
General conditions of the Buyer are not enforceable on Echosens, except those that Echosens has already expressly accepted in writing and signed.
Echosens reserves the right to modify the present general conditions of sale (the “General Conditions”) unilaterally at any time. The general conditions of sale applicable between Echosens and any Buyer shall be those in force on the date when Echosens sends an offer of sale of its Products to the potential Buyer concerned.
The General Conditions 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 Buyer 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.
Failing the prior reception by Echosens of express written acceptance of the offer or quotation signed by the Buyer, Echosens shall have no obligation towards the Buyer with regard to the offer or quotation concerned.
Prices are stated excluding tax, customs duties if any and shipping charges, now or hereafter enacted, applicable to the Products or any other expenses. Echosens will add taxes, duties and similar levies to the sale price where Echosens is required or enabled by law to pay or collect them and these will be paid by Buyer together with the price.
They are valid only for a period of three (3) months 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 Buyer hall have three (3) 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 Buyer 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. If no specific conditions are stated on the invoice, payment must be made no later than thirty (30) days after the invoice date.
No discount shall be granted for early payments.
Payment shall be made by bank transfer in the invoiced currency; possible exchange rate or banking fees will be borne by the Buyer.
If the Buyer of a Product 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 Buyer, without notice or any prior formalities, until the Buyer has fully and actually paid Echosens all the amounts due, and to repossess or ensure the repossession of the Product delivered. In that case, the Buyer 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. The Buyer shall pay all the costs incurred by Echosens to recover the amounts due, with a minimum fixed charge of an amount of 40 euros, per non-payment incident or Product repossession by Echosens.
In the event of late payment, the Buyer must also pay Echosens amounts set by Decree as specified by the disposals of Article L441-6 of the French Commercial Code.
Delivery times for an Echosens Product are indicated to the Buyer for information only.
According to the Incoterms® 2020 (International Commercial Terms) defined in the quotation, the signing by the Buyer 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 Buyer of the Echosens Product delivered (including if the items are delivered to a third party representing the Buyer).
This delivery and taking possession shall automatically entail as of right the transfer of risk exclusively to the Buyer, who shall then become the custodian of the Product(s) delivered.
If a sale is CIP (Incoterms®2020), the risks are transferred from the factory, but Echosens supports the cost to the place agreed with the Buyer.
The Buyer 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 Buyer 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.
Echosens is committed to deliver the Products in good working order, with the User Guide necessary for their operation.
Echosens maintains ownership of the goods sold until the actual collection by Echosens of the full price of any 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 Buyer.
Failure by the Buyer to fulfill any of its payment obligations, for any reason whatsoever, gives Echosens the right to demand the immediate return of the Products delivered, where the Buyer must pay all costs and fees and exclusively assume all risks.
Echosens promises the Buyer 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 as of the date of Delivery Note, provided that the Products have been used in compliance with (i) the intended use, (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 “Warranty Period”) :
1) New Product and standard exchange: 12 months + 2 months for logistic and installation, starting at the date of the Delivery Note,
2) Replacement parts: 12 months (including for a repair)
3) Second-hand Product, equipment, or part: 6 months,
4) Repair of a new Product: 3 months for labour and 12 months for new spare parts.
The installation must have been performed in strict compliance with the installation instructions defined in the Installation Guide drawn up and sent to the Buyer by Echosens.
The Installation Certificate, dated and signed by both parties (either Echosens and the Buyer or the Buyer 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.
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 warranty exclusions: this warranty shall prevail over any other warranty, whether written, oral, express, or tacit. No express or tacit warranty 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 warranty 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
Note that these General Conditions 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 SHALLNOT 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 Buyer and actually collected by Echosens from the Buyer for the Product concerned.
Availability of service: In the event that this guarantee is invoked, the Buyer 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 Buyer 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 provision that all service calls by Echosens shall take place during its business hours and during business days defined by French law.
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 Buyer and the end users (where applicable, direct customer of the Buyer), 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 Buyer must personally and/or, where applicable expressly inform in writing its end customer(s) or user(s) of an Echosens Product of this specific obligation so that they can observe it in practice alongside Echosens.
Echosens warrants that under normal use in accordance with the applicable user manual the Products (excluding any software that is not embedded in or delivered with any goods by Echosens or software which is subject to copyright owned by a third party) shall, at the time of delivery, be free from defects in material or manufacturing and shall substantially conform to Echosens’ specifications for such Product, or such other specifications as Echosens has agreed to in writing as applicable.
If the Product is defective and/or is not substantially conforming with the specifications, Echosens shall have the duty, but also the right, to – at Echosens’ option – either replace or repair the Product free of charge within a reasonable period of time.
Any logistical complaint or defect in delivery shall be sent to the Echosens’ Sales Administration Department (firstname.lastname@example.org) and any technical complaint shall be sent to Service Department (email@example.com).
Echosens will only do business with those companies that respect the law and adhere to ethical standards and principles. Buyer agrees that it now and in future shall comply with national law on prevention of bribery as well as Echosens’ dedicated policies.
In general, the law makes it illegal to bribe or make a corrupt payment to an Official for the purpose of obtaining or retaining business, directing business to any person, or securing any improper advantage.
Buyer’s failure to comply with any provision of this section is grounds for immediate termination of any agreement by Echosens without Echosens’ incurring any liability towards Buyer. In the event of such termination, (i) Echosens shall be under no obligation to supply any Product to Buyer, (ii) Buyer shall be responsible for and indemnify Echosens for any damages, claims, penalties or other losses (including attorney’s fees) that may be asserted against or incurred by Echosens as a result of Buyer’s breach of this section ; and (iii) Echosens shall be entitled to any other remedies available at law or in equity. The terms and conditions of this clause shall survive any expiration or termination of the present General Conditions.
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.
No unilateral cancellation of the order by the Buyer 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 Buyer to Echosens. No compensation may be asked by the Buyer with regard to this cancellation. In the event that the Buyer 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 customer 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.
Echosens shall provide to the Buyer any Product Updates released during the Warranty Period, and any Product Updates that are necessary for the safe operation of the Products (such as, for example, changes addressing a Product recall) at any time, provided that the Customer is still actively using the Products, at no additional charge, and the Buyer agrees to accept and allow the installation of any such Product Updates to the Products.
“Product Update” means a release of the software or a change to the existing hardware containing substantially only error corrections, and/or performance improvements of existing functionality, but that would not be required for the existing software and/or hardware configuration to perform to the existing functional Specifications. Such Product Updates would not necessarily replace or extend the life of the existing software and/or hardware configuration of the Products.
“Product Upgrade” means a new release of software or a change to the existing hardware, in each case, containing new features, functionality and/or performance improvements and/or extending the useful life of that Product. Product Upgrades released by Echosens may be made available to the Buyer at any time for purchase at an additional charge.
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 General Conditions: natural disasters, storms, fire, explosion, flood, national strike action, accident diseases outbreaks, 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, pandemic and exceptional measures to overcome the effects of a pandemic.
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 Product.
Likewise, Buyer’s obligations concerning especially decontamination and safety of Product before removal, to which Buyer must strictly adhere, are set out in the relevant User Guide.
The placing of an order by a Buyer 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.
Buyer shall not : (a) modify, adapt, alter, translate, or create derivative works from any software residing in or provided by Echosens in conjunction with any Product(s) ; (b) assign, sublicense, lease, rent, loan, transfer, disclose or otherwise make available such software ; (c) merge or incorporate such software with or into any other software ; or (d) reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code for such software without written authorization from Echosens except as explicitly allowed under applicable law.
The Buyer acknowledges that all technical, commercial and financial data disclosed to Buyer by Echosens and/or its affiliates is the confidential information of Echosens and/or its affiliates.
The Buyer agrees to preserve with the same degree it uses for its own Confidential Information, the confidentiality of the software and its documentation, and to neither transfer nor make these information available to any third party.
Likewise, the Buyer must ensure the confidentiality of all sensitive data regarding know-how, manufacturing secrets and unpublished information relating to Echosens Products, as well as any rates, discount and technical information supplied by Echosens to the Buyer.
Echosens aims to collect personal data only for certain legitimate business purposes in accordance with the disposals of GDPR. The Buyer is aware that it/he/she has the right to request access to personal data to request rectification, deletion or block of its / his / her personal data by addressing the request by written to the following address : firstname.lastname@example.org.
Personal data of Buyer will be treated in compliance with the effective provisions of the laws on data protection. Echosens is the controller. Echosens or any other service provider commissioned by Echosens will store and process personal data, particularly address and order data, for the execution of the business transactions.
The Buyer will no transfer or assign its rights or obligations under these General Conditions, in whole or in part, without Echosens’ prior written permission.
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.
In the event that any provision(s) of these General Conditions shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions thereof,. In the event that any provision of these General Conditions shall finally be determined to be unlawful or unenforceable, such provision shall be deemed severed from the General Conditions, but every other provision shall remain in full force and effect, and in substitution for any such provision held unlawful or unenforceable, there shall be substituted a provision of similar import reflecting the original intent of the clause to the extent permissible under applicable law.
The failure on the part of either party to exercise, or any delay in exercising, any right or remedy arising from the General Conditions shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising there from preclude any other or future exercise thereof or the exercise of any other right or remedy arising from the General Conditions or from any related document or by law.