TERMS OF SALE
- APPLICATION OF TERMS OF SALE
This Agreement consists of these terms and conditions and the order confirmation on the reverse side. The rights and obligations of the parties hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of France. Any disputes between the parties shall be resolved by binding arbitration conducted in the French language by one arbitrator in France under the arbitration rules of the Lille Court.
This Agreement shall constitute MDOLORIS MEDICAL SYSTEMS’ offer to sell to Purchaser the Products. This offer is expressly limited to Purchaser’s acceptance of the terms of this Agreement and MDOLORIS MEDICAL SYSTEMS hereby objects to and rejects any provision of any purchase order, acknowledgment or other communication from Purchaser which is inconsistent with or in addition to the provisions of this Agreement. Purchaser’s payment, or provision or release of its purchase order reflecting the price, quantity and list of products shown on the reverse side, is an acceptance of all the terms and conditions of this Agreement. To the extent that this Agreement may constitute an acceptance, this acceptance is expressly conditioned on Purchaser’s assent to all the terms and conditions of this Agreement.
No representation, promise, modification or amendment shall be binding on either party as a warranty or otherwise unless in writing and signed on behalf of such party by a duly authorized representative. Purchaser may not delegate any duties or assign any rights or claims hereunder without MDOLORIS MEDICAL SYSTEMS’ prior written consent, and any such attempted assignment shall be void.
Any provision of this Agreement that is invalid or unenforceable in any situation or jurisdiction shall not affect the validity or enforceability of the remaining provisions hereof or the validity or enforceability of the offending provision in any other situation or jurisdiction. (g) Any purchase order issued by Purchaser in conjunction with this Agreement shall be for billing purposes only and shall not be incorporated into this Agreement.
The fact that MDOLORIS MEDICAL SYSTEMS does not prevail any of these General Conditions of Sale cannot be interpreted as a waiver to prevail later any of these conditions.
Before selling products, MDOLORIS MEDICAL SYSTEMS establishes a quotation that is forwarded to the client. The quotation includes, in particular, a description of the product(s), the quantities and the selling price.
Unless otherwise specified, if the quotation is not accepted within one month from the date of issuance by MDOLORIS MEDICAL SYSTEMS, it shall be considered as invalid.
Any product provided on site before MDOLORIS MEDICAL SYSTEMS receives the quotation signed and dated by the customer preceded by the mention “Good for Agreement” will be considered as ordered and then charged, except cases in which the quotation is realized by MDOLORIS MEDICAL SYSTEMS or there is an establishment of a loan form or a loan contract regardless its duration.
- MODIFICATION AND ORDER CANCELLATION
If the customer cancels or amends all or any part of its order without MDOLORIS MEDICAL SYSTEMS bears responsibility; the customer shall indemnify MDOLORIS MEDICAL SYSTEMS for all relating expenses.
Any order that has been started to be executed by MDOLORIS MEDICAL SYSTEMS prior modification or cancellation of the customer must be completely paid by the customer, who is required to take delivery.
- PRICES AND TAXES
Except as expressly set forth on the face hereof, prices are those stated in the MDOLORIS MEDICAL SYSTEMS’ quotation in force on the date the order is confirmed by MDOLORIS MEDICAL SYSTEMS. Prices are net prices, plus VAT which VAT must be paid by the Purchaser.
Unless otherwise stated in the quotation, prices are exclusive of all excise duties, sales, use, transfer and other taxes and customs duties imposed on these products or their sale by any federal authority, municipal, or government, all these taxes should be paid by the customer. The customer is responsible for obtaining and providing to MDOLORIS MEDICAL SYSTEMS all certificates of exemption or similar documents required for exemption of sales, related sale taxes, or other taxes.
MDOLORIS MEDICAL SYSTEMS will use reasonable efforts to meet requested delivery dates, but will not be liable for failure to do so.
Except when the customer has set a strict deadline, the delivery date is only indicative.
Exceeding the indicative deadline cannot lead to damages, withholding or cancellation of current orders, whatever the causes, extent and consequences of delay, following a formal notice if there is no response with a period of 30 calendar days.
MDOLORIS MEDICAL SYSTEMS is authorized to carry out full or partial deliveries. In case of partial deliveries, MDOLORIS MEDICAL SYSTEMS may proceed with the corresponding partial billing.
Except in the case of a service ensured by us or selected EX-WORKS delivery MDOLORIS MEDICAL SYSTEMS shall select its carrier and will be responsible for shipping the goods, the appropriate port and packaging. All shipping charges will be included on the invoice and shall be paid by the customer in the same way that the price of products. Shipping terms will be then CIP (Carriage and insurance paid to the customer).
- RETURNED PRODUCTS POLICY
Without prejudice to be taken against the carrier, any product-related complaints must be written and addressed to MDOLORIS MEDICAL SYSTEMS within 5 calendar days after receipt of goods by the customer or by someone else on his behalf. Otherwise, the goods are deemed to have been received by the customer without reservation.
In the case of a claim expressed within 5 days that is mentioned above, customer needs to provide a justification to justify the reality of the declared anomalies. He must provide MDOLORIS MEDICAL SYSTEMS every method to proceed to the observation of these anomalies and the necessary corrections.
MDOLORIS MEDICAL SYSTEMS shall have no obligation to accept Product returns except for returns under warranty. In any case, such returns shall require MDOLORIS MEDICAL SYSTEMS ’ prior written authorization which may be denied in MDOLORIS MEDICAL SYSTEMS ’ sole discretion.
Despite these potential claims, the client remains responsible to pay each invoice before the maturity.
- SCOPE AND RESTRICTIONS
The MDOLORIS MEDICAL SYSTEMS’ monitoring system is intended for use under the direct supervision of a licensed healthcare practitioner or by personnel specifically trained for its use. The system is intended for use on adult and pediatric patients, providing patient care by monitoring the parasympathetic nervous tone activity by data acquisition of ECG signals. The system, and all its associated parameters, may be used as an aid in monitoring the effects of certain analgesic agents.
ANI is a complex monitoring technology intended for use as an adjunct to clinical judgment. Clinical judgment should always be used when interpreting the ANI index in conjunction with other available clinical signs. Reliance on ANI alone for interpreting analgesic management is not recommended.
- RESPONSIBILITY AND USE
MDOLORIS MEDICAL SYSTEMS refuses to accept responsibility in the following cases:
- monitor’s data misinterpretation
- recommendation non-follow, incorrect use, negligence or accident
- system damages caused by causes external, including but not limited to failure of or faulty electrical power
- non-standards accessory attachment
- the serial number has been removed or made illegible
- products modified or that have been disassembled, serviced, or reassembled by anyone other than MDOLORIS MEDICAL SYSTEMS or unless authorized by MDOLORIS MEDICAL SYSTEMS, or
- normal wear and tear of material
In any event, and regardless of the amount and nature of the complaint, and subject to the provisions related to the public policy in this field, the responsibility of MDOLORIS MEDICAL SYSTEMS is limited to the amount of money actually received by MDOLORIS MEDICAL SYSTEMS for the products giving rise to the claim made by the client.
- LIMITED WARRANTY
MDOLORIS MEDICAL SYSTEMS warrants to the initial Purchaser that any monitoring system purchased hereunder will be free from defects in workmanship or materials, when given normal, proper, and intended usage, for twelve months from the date of its initial delivery to Purchaser (“Warranty Period”).
For the sake of clarity, excluded from this warranty are software, disposable components, and supply items such as, but not limited to, sensors, cables, and sensitive screen.
To request repair or replacement under this warranty, the Purchaser should contact MDOLORIS MEDICAL SYSTEMS to be authorized to return the Warranted Product (or part thereof) to MDOLORIS MEDICAL SYSTEMS. MDOLORIS MEDICAL SYSTEMS shall determine whether to repair or replace. Products and parts covered by this warranty and all Products or parts replaced shall become MDOLORIS MEDICAL SYSTEMS’ property.
MDOLORIS MEDICAL SYSTEMS’ obligations under this warranty are to repair or replace any Warranted Product (or part thereof) that MDOLORIS MEDICAL SYSTEMS reasonably determines to be covered by this warranty and to be defective in workmanship or materials, provided that, within the Warranty Period, the Purchaser has given notice of such warranty claim and the Warranted Product is returned to the factory with freight prepaid. If MDOLORIS MEDICAL SYSTEMS reasonably determines that a repair or replacement is covered by the warranty, MDOLORIS MEDICAL SYSTEMS shall bear the costs of shipping the repaired or replacement Product to the Purchaser. All other shipping costs shall be paid by Purchaser.
The risk of loss or damage during shipments under this warranty shall be borne by the party shipping the Product. Products shipped by Purchaser under this warranty shall be packaged in the original shipping container or equivalent packaging to protect the Product. If Purchaser ships a Product to MDOLORIS MEDICAL SYSTEMS in unsuitable packaging, any physical damage present in the Product on receipt by MDOLORIS MEDICAL SYSTEMS (and not previously reported) will be presumed to have occurred in transit and will be the responsibility of Purchaser.
Repair or replacement of Products under this warranty does not extend the Warranty Period and replacement Products are warranted only for the remaining Warranty Period of the replaced Product.
In the course of warranty service, MDOLORIS MEDICAL SYSTEMS may but shall not be required to make engineering improvements to the Warranted Product or part thereof.
This warranty does not extend to any Warranted Products or parts thereof that have been used in violation of MDOLORIS MEDICAL SYSTEMS’ instructions. MDOLORIS MEDICAL SYSTEMS shall have no obligation to make repairs, replacements, or corrections that result, in whole or in part, from normal wear and tear. MDOLORIS MEDICAL SYSTEMS makes no warranty (a) with respect to any products that are not Warranted Products, (b) with respect to any products purchased from a person other than MDOLORIS MEDICAL SYSTEMS or an MDOLORIS MEDICAL SYSTEMS – authorized distributor, or (c) with respect to any product sold under a brand name other than MDOLORIS MEDICAL SYSTEMS.
- SOFTWARE/FIRMWARE AND LICENSES
Notwithstanding anything to the contrary herein, MDOLORIS MEDICAL SYSTEMS retains title and all ownership and intellectual property rights to any software and/or firmware included in the Products acquired by Purchaser hereunder. MDOLORIS MEDICAL SYSTEMS and Purchaser intend and agree that such software/firmware is being licensed and not sold. MDOLORIS MEDICAL SYSTEMS hereby grants to Purchaser a nonexclusive license to use such software/firmware and related documentation in connection with Purchaser’s use of the Products.
Purchaser may not modify, enhance or otherwise change or supplement the software/firmware provided hereunder or related documentation without MDOLORIS MEDICAL SYSTEMS’ written consent. The source code for the software/firmware supplied hereunder will not be disclosed to Purchaser and Purchaser may not disassemble, decompile or reverse engineer the software/firmware supplied hereunder; provided, however, that if applicable law requires access to source code for some purpose, such as interoperability with other software, and Purchaser desires access for that required purpose, Purchaser shall notify MDOLORIS MEDICAL SYSTEMS, and MDOLORIS MEDICAL SYSTEMS shall have the option, in its discretion, to (a) perform the work to derive any required information at MDOLORIS MEDICAL SYSTEMS’ usual consulting rate, or (b) allow Purchaser access to source code solely for the legally required purpose.
Purchaser may not reproduce or disclose to any third party any portion of such software/firmware and related documentation and may transfer it only in conjunction with a transfer of the Product and subject to these restrictions.
Certain of the software/firmware provided by MDOLORIS MEDICAL SYSTEMS may be owned by one or more third parties and licensed to MDOLORIS MEDICAL SYSTEMS. Such third parties retain ownership of and title to such products and such software/firmware is being sublicensed to Purchaser.
The warranty and indemnification provisions set forth herein shall not apply to software/firmware owned by third parties and provided hereunder. No sale of any Product shall be construed as granting to Purchaser any license or any other proprietary or intellectual property rights applicable to the products, except the
Other notices contained on or in the Products. The license granted herein will terminate automatically without notice from MDOLORIS MEDICAL SYSTEMS if Purchaser fails to comply with term or provision of this Section 10, and, thereafter, Purchaser may not make any further use of the software.
The warranty and indemnification provisions set forth herein shall not apply to software/firmware owned by third parties and provided hereunder. No sale of any Product shall be construed as granting to Purchaser any license or any other proprietary or intellectual property rights applicable to the products, except the other notices contained on or in the Products. The license granted herein will terminate automatically without notice from MDOLORIS MEDICAL SYSTEMS if Purchaser fails to comply with term or provision of this Section 10, and, thereafter, Purchaser may not make any further use of the software.
- INTELLECTUAL PROPERTY INDEMNITY
MDOLORIS MEDICAL SYSTEMSshall defends or settle, at its own expense, any suit or proceeding against Purchaser in a French court for direct infringement by the Products of any valid European patent, copyright or trade secret. MDOLORIS MEDICAL SYSTEMS shall pay all damages and costs, not exceeding the total purchase price received by MDOLORIS MEDICAL systems for such Products, finally awarded against Purchaser in any such suit or proceeding because of direct infringement.
MDOLORIS MEDICAL SYSTEMS’ obligations under this Section 9 are conditioned on MDOLORIS MEDICAL SYSTEMSreceiving (a) prompt notice from Purchaser of commencement of any suit or proceeding or any claim of infringement, (b) copies of all written communication relating to such suit or proceeding or any claim of infringement, and (c) full assistance, information, cooperation and authority from Purchaser with respect to defense or settlement of same. MDOLORIS MEDICAL SYSTEMS shall not be bound by any settlement made without MDOLORIS MEDICAL SYSTEMS’ prior written consent.
MDOLORIS MEDICAL SYSTEMS shall have no obligations or liability to Purchaser to the extent that any infringement or claim thereof is based upon (a) use of any Product in combination with any product, part or accessory not supplied by MDOLORIS MEDICAL SYSTEMS where the Product itself would not be infringing, (b) use of any Product in a manner not recommended by MDOLORIS MEDICAL SYSTEMS or for which it was not designed, (c) any Product manufactured in accordance with Purchaser’s designs, specifications or instructions or by any party other than MDOLORIS MEDICAL SYSTEMS, (d) any Product that has been altered or modified in any way by anyone other than an employee or agent of MDOLORIS MEDICAL SYSTEMS or (e) any claims of infringement of any patent, copyright, or trade secret in which Purchaser or any affiliate or customer of Purchaser has an interest or license.
This Section 9 states MDOLORIS MEDICAL SYSTEMS’ sole and exclusive liability and Purchaser’s sole remedy for any claim of any third party by way of infringement or the like.
- TERMS AND METHOD OF PAYMENT
Payment terms shall be net 30 days from the date of invoice unless otherwise indicated on the face hereof.
To the extent permitted by applicable law, overdue payments will be subject to finance charges computed at a periodic rate of 18% per year.
MDOLORIS MEDICAL SYSTEMS reserves the right, in its sole discretion, to require payment on a COD basis, to require full or partial payment in advance, or to revoke any credit previously extended. Purchaser is responsible to pay all losses, costs, attorneys’ fees, or other expenses incurred by MDOLORIS MEDICAL SYSTEMS in the event that MDOLORIS MEDICAL SYSTEMS, in its sole discretion, hires a third-party collection agency in order to recover debts owed to MDOLORIS MEDICAL SYSTEMS by Purchaser.
- DELAY OR DEFAULT OF PAYMENT
In the event of a delay in payment, MDOLORIS MEDICAL SYSTEMS may suspend all future orders, without prejudice to any other right of action.
Any amount not paid at the deadline stipulated on the invoice, give rise by operation of law, also without prior notification, from the day following the due date of the invoices, the application of penalties for delay at a rate of 18% on all remaining sums owed.
The non-payment of all or part of an invoice on its due date, shall involve the immediate payability of all remaining invoices due to MDOLORIS MEDICAL SYSTEMS by the customer, even if they are not yet due, and regardless of the payment method expected. This default of payment also results in an automatic penalty of 40 euros on all remaining sums owed, relating to recovery fees.
Any customer’s payment is allocated in priority on interest, penalties, and additional expenses. Any balance comes then for settlement of the outstanding amounts.
- OWNERSHIP RESERVE CLAUSE AND RISK TRANSFER
MDOLORIS MEDICAL SYSTEMS retains ownership of the goods sold until complete payment by the customer.
Notwithstanding this provision, the risk transfer of the products to the customer intervenes during the delivery of the products.
- APPLICABLE LAW AND COMPETENT JURISDICTION
Any dispute arising from the formation, interpretation, execution, or termination of agreements between MDOLORIS MEDICAL SYSTEMS and the customer is competent of the Courts of Lille and subjected to French law.