TERMS AND CONDITIONS OF SALE
SYMATESE
Version applicable from 05/30/2024
- DEFINITIONS
- GCS: Refers to these General Terms and Conditions of Sale (GTCS).
- CUSTOMER: Refers to any professional purchaser ordering PRODUCTS.
- SY: Refers to SYMATESE. Company having its head office ZI les Troques 69630 CHAPONOST, France, seller of the PRODUCTS.
- FORCE MAJEURE: Refers to any external, unforeseeable or irresistible event within the meaning of Article 1148 of the French Civil Code. The following are conventionally assimilated to cases of force majeure: strikes by all or part of SY’s staff or its usual carriers, fire, flood, war, production stoppages due to unforeseen breakdowns, inability to obtain supplies of raw materials, epidemics and pandemics, thaw barriers, roadblocks, strikes or disruptions of electricity supplies, or disruptions of supplies for reasons not attributable to SY, as well as any other cause of disruption of supplies attributable to its suppliers.
- PRODUCTS: Refers to the PRODUCTS of medical devices, medical accessories and services marketed by SY and listed in SY’s price list in force on the date the CLIENT places the order.
- HEALTHCARE FACILITIES: all medical care facilities (e.g. hospitals, clinics, doctors’ surgeries, etc.).
- GENERAL
The present General Terms and Conditions of Sale apply to all offers (including offers by way of pro-forma invoices) and whatever their form (paper or dematerialized format), orders, sales and deliveries of SY.
These General Terms and Conditions of Sale prevail over any clauses and general (purchase) conditions of the CLIENT, except in the case of a written agreement to the contrary accepted by SY. SY’s General Terms and Conditions of Sale are deemed accepted by the CUSTOMER in the absence of an explicit written protest.
SY reserves the right to amend these General Terms and Conditions of Sale at its sole discretion. These modifications will always be communicated in writing in the form of a letter, fax or e-mail, or updated on its website.
None of SY’s sales are exclusive, nor do they grant distribution or agency rights, unless expressly agreed otherwise.
Specific written agreements between the parties or particular conditions (e.g. distribution contract, license agreement…) take precedence over the terms of the corresponding articles in this document.
- PURPOSE
These General Terms and Conditions apply to all sales made by SY to CLIENTS. They take precedence over any clauses that may appear in the CLIENT’s documents, in particular its general terms and conditions of purchase, and are applicable to the sale of PRODUCTS in all countries where the CLIENT sells them.
In accordance with current regulations, SY reserves the right to derogate from certain clauses of these GCS depending on the negotiations carried out with the CUSTOMER. Such derogations will be the subject of a specific written agreement between SY and the CUSTOMER or of special conditions.
- ORDERS
4.1 ACCEPTANCE
Sales are perfect only after SY has received the written order form from the CLIENT in the form of a letter, fax or e-mail and after SY has expressly accepted the CLIENT’s order in writing within three (3) working days of receipt of the order (e-mail or fax), by sending an order acknowledgement.
Unless the CLIENT makes a comment within 2 (working) days following dispatch of the order acknowledgement, the ORDER will be deemed confirmed by the CLIENT.
This order acknowledgement will indicate, in particular, the availability of the PRODUCTS requested and, where possible, the estimated delivery time for each PRODUCT. An order may also be implicitly accepted by its delivery.
4.2 CANCELLATION OR MODIFICATION FOR HEALTHCARE FACILITIES
Any request for cancellation or modification of an order placed by the customer will only be taken into account with the express agreement of SY. The request must be made in the form of a letter, fax or e-mail and must reach SY no later than 8 (eight) working days after receipt by SY of the initial order.
If SY agrees to modify or cancel the order, and if the products have already been delivered to the customer or are in the process of being shipped, this modification or cancellation will be conditional on the return of the products in perfect condition in their original packaging, within 8 (eight) working days of their receipt by the CUSTOMER.
4.3 CANCELLATION FOR COMPANIES
Any cancellation of an order requested by the CLIENT will only be taken into consideration if it is received, by SY in the form of a letter, fax or e-mail, at the latest within 2 (two) working days following dispatch of the order acknowledgement. Companies refer to companies supplying medical devices to healthcare establishments as defined above.
4.4 CHANGES FOR COMPANIES
Any change to an order requested by the CLIENT will only be accepted by SY at SY’s sole discretion, and only if notified in the form of a letter, fax or e-mail.
In any case, modifications can only be accepted if they are notified to SY at the latest within 2 (working) days following dispatch of the order acknowledgement. After the CLIENT has sent a new specific order form, SY may accept the modification of the order with a possible price adjustment. In the event of acceptance by SY, an acknowledgement of receipt of the modified order will be sent to the CLIENT.
- DELIVERY
5.1 DELIVERY TIME
PRODUCTS are delivered to the address indicated by the CLIENT on the order form accepted by SY.
Delivery will be made in accordance with INCOTERM E.X.W. (« Ex Works ») at Vourles and is deemed to have taken place upon signature of the delivery note by the CUSTOMER or upon availability of the goods at the delivery location agreed upon in the form of a letter, fax or e-mail with the CUSTOMER as described in the order acknowledgement.
The CLIENT accepts that delivery dates for PRODUCTS are given as an indication only, and SY undertakes to use all reasonable means at SY’s disposal to meet these dates.
SY cannot be held responsible for late deliveries, or for delays or suspensions in delivery attributable to the CLIENT.
In the absence of other arrangements with the CUSTOMER, SY is authorized to make deliveries in whole or in part without the CUSTOMER’s prior agreement.
For clarity: SY will not intentionally delay deliveries, but it is possible, in the event of product availability problems, that SY may have to allocate available goods on an equitable basis between different Buyers.
5.2 CLAIMS
The CLIENT is responsible for verifying the apparent condition of the PRODUCTS upon delivery. In the absence of express written reservations within 5 (five) working days from the date of delivery, the PRODUCTS will be deemed to conform in quantity and quality to the order. Any notification must contain as full a description of the defect as possible, so as to enable SY to react appropriately. In addition to the catalog number, the description of the good, the serial or batch number and the expiration date, the defects and the presumed cause must be mentioned. The CUSTOMER must give SY the opportunity to investigate (or have investigated) a claim.
Any apparent defects must be notified to SY by the CLIENT in the form of a letter, fax or e-mail, within 8 (eight) working days of delivery. Any hidden defects must be notified to SY immediately by the CLIENT in the form of a letter, fax or e-mail, and in any event no later than 8 (eight) working days following their discovery.
In the absence of such notification within the aforementioned time limits, the goods are irrevocably deemed to have been accepted as is by the CLIENT and SY will be deemed to have honored its obligations. If the CLIENT notifies a claim in time, this does not suspend his obligation to pay. In this case, the CLIENT also remains obliged to collect and pay for the goods ordered.
In no event shall SY be liable for any costs or damages, including direct, indirect, special, incidental or consequential damages, incurred or suffered by the CUSTOMER as a result of or in connection with any delay in delivery.
SYM will replace, as soon as possible and at its own expense, any delivered PRODUCTS whose lack of conformity has been duly proven by the CLIENT and approved by SYM.
5.3 FORCE MAJEURE
Under no circumstances shall SY be held liable for any delay or suspension of delivery attributable to Force Majeure. More generally, neither party shall be held liable for any breach of an agreement governed by the General Terms and Conditions of Sale, insofar as such breach is caused by circumstances of Force Majeure.
In such circumstances, SY will inform the CLIENT in writing (fax or e-mail confirmed by registered letter with acknowledgement of receipt) as soon as possible, said notification suspending delivery of the Order ipso jure and without compensation, as from the date of occurrence of the event.
Insofar as SY, at the time of the occurrence of the force majeure, has already partially fulfilled or will be able to fully fulfill its obligations under the agreement (e.g. partial delivery), and a separate value is attributed to the part already performed or to be performed, SY may invoice separately the part already performed or to be performed. The CLIENT is obliged to honour this invoice as if it were a separate agreement.
- RETURN OF PRODUCTS
No Product will be taken back, for any reason whatsoever, after a period of 30 (thirty) calendar days following delivery.
Sterile and non-sterile Products in their original, undamaged packaging may exceptionally be taken back or replaced according to the procedure prevailing at the time, and only after acceptance and written approval by SY. Where applicable, the return of PRODUCTS will be organized by SY at the customer’s expense and must comply with the return procedures (products, batches, quantities, packaging and transport procedures) communicated by the latter to the CUSTOMER, the condition of the Products being inspected on arrival. A credit note will then be drawn up in favor of the CLIENT, with a minimum deduction of 15 (fifteen) % on the value of the Net Invoice Prices, not applicable to Health Establishments. In the event of failure to comply with the return procedure, SY will be released from any obligation to reimburse, replace or compensate the CLIENT. In the event of breach of the distribution contract, the terms of the contract shall prevail.
- TRANSFER OF OWNERSHIP – TRANSFER OF RISK
- The CLIENT undertakes to store the PRODUCTS in conditions suitable for their proper preservation and in compliance with the storage and preservation instructions communicated by SY.
- The risks shall be borne by the CLIENT from the time of receipt and acceptance of the PRODUCTS by the CLIENT.
- In the event that a third party initiates seizure/enforcement proceedings against the CLIENT, the CLIENT shall inform the third party of the existence of a retention-of-title clause in favor of SY and shall immediately inform SY of the existence of such proceedings so that the latter may repossess the PRODUCTS.
- Goods delivered by SY covered by the retention of title clause may not be resold or used as a means of payment.
- The CLIENT may not pledge or otherwise encumber the goods covered by the retention of title clause.
- The CLIENT must always do everything that can reasonably be expected of him to safeguard SY’s property rights.
- The CLIENT undertakes to insure and keep insured the goods covered by the retention-of-title clause against fire, explosion and water damage as well as theft, and the policy of such insurance must be available to SY on first request. In the event of insurance compensation, SY is entitled to these amounts. Insofar as necessary, the CLIENT undertakes in advance to assist SY in all matters which are or appear to be necessary or desirable in this connection.
- In the event that SY wishes to exercise its property rights as described in this article, the CUSTOMER irrevocably and unconditionally authorizes SY or third parties designated by SY in advance to access all premises where property owned by SY is located and to recover such property.
- COMPLIANCE WITH TRADE LEGISLATION
Products delivered under this agreement may not be exported, re-exported, sold or transferred. Any direct or indirect use, sale or distribution must comply with the applicable legal provisions.
SY and the CLIENT agree to comply with all applicable legal provisions, including, but not limited to, export control laws with respect to the cross-border sale, resale, shipment and transfer of goods. SY’s obligation to deliver goods to the CUSTOMER is subject to obtaining the required licenses or authorizations.
If a license or authorization from a government or other authority is required for the acquisition of the Products, the CLIENT must obtain the license and authorization at its own expense unless otherwise stipulated in the contract and, if requested by SY, provide proof thereof to SY. Failure to obtain a license or authorization shall not entitle the CLIENT to withhold or defer payment of the price of the goods. Any costs or charges incurred by SY as a result of such failure shall be borne by the CLIENT or reimbursed to SY by the CLIENT if SYM has to advance such costs.
- PRICE AND PAYMENT
9.1 PRICING
The prices of the PRODUCTS shown on SY’s general price list are given for information only and are expressed in EUROS (EUR currency).
An invoice will be drawn up and issued for each delivery on the basis of the prices in force at the time the PRODUCTS are dispatched to the CLIENT by SY.
All prices are net and exclude VAT and any other levies decided by an authority. Prices become final upon receipt of the order or upon receipt of a written agreement from the CLIENT.
Any additional costs incurred by urgent shipment requests (express costs in particular) will be invoiced to the CLIENT in addition. An « express request » is defined as a request for delivery in less than 2 days.
Prices are exclusive of VAT at the statutory rate, where applicable, and ex works.
Prices are EXW, and delivery charges are payable by the CLIENT, unless otherwise agreed.
9.2 TERMS OF PAYMENT
Invoices issued by SY shall be payable net, without discount, on the due date stated on the invoice or, failing this, within thirty (30) calendar days of the invoice date.
In the event of total or partial non-payment of amounts due on the due date, the CLIENT shall pay SY a late payment penalty equal to the refinancing rate of the European Central Bank (ECB) plus 10 percentage points, and a fixed indemnity of forty (40) euros. These penalties are due in the event of non-payment on the day following the payment date shown on the invoice. Penalties will be applied to the outstanding amount including VAT, without the need for prior formal notice.
In addition, in the event of failure to comply with the above terms of payment, SY reserves the right to suspend or cancel delivery of orders in progress on the part of the CLIENT.
All costs incurred by SY for the collection of sums owed by the CLIENT will be invoiced to the CLIENT in addition.
Any bank charges relating to payments will be borne by the CLIENT. In the case of bank transfers, bank charges will be « OUR » (to be paid in full by the CLIENT who initiated the payment). The same applies to any foreign exchange charges incurred by the CLIENT.
9.3 RESERVATION OF OWNERSHIP CLAUSE
SY reserves the right of ownership of the PRODUCTS sold until full payment of the price by the CLIENT, allowing the CLIENT to repossess the PRODUCTS. Any deposit paid by the CLIENT shall remain the property of SY by way of lump-sum compensation, without prejudice to any other action it may be entitled to take against the CLIENT as a result.
- WARRANTY AND LIABILITY
10.1 WARRANTY AND LIABILITY
SY guarantees that the PRODUCTS delivered comply with the regulations in force and with the specifications stipulated in the PRODUCT manuals. This warranty covers non-conformity of the PRODUCTS with the order and any latent defect resulting from a material, design or manufacturing fault affecting the PRODUCTS delivered and rendering them unfit for use. SY’s obligation to pay compensation in accordance with this article is always limited to the purchase price of the non-conforming PRODUCT(s) or the defective part of the good.
In the event of non-conformity of the PRODUCTS with the order, all claims must be notified to SY within 2 (two) working days after the delivery date at the following e-mail address: complaints@symatese.com
Any warranty is excluded in the event of misuse, negligence, lack of maintenance or storage, modification of the PRODUCT by the CLIENT, normal wear and tear of the PRODUCT or FORCE MAJEURE.
Furthermore, SY’s liability is expressly excluded in the event of re-sterilization of a PRODUCT, use of a sterile PRODUCT with damaged packaging or use of a PRODUCT after SY’s expiration date.
10.2 TRACEABILITY
The CUSTOMER is obliged to set up a traceability system with a register enabling SY to locate the PRODUCTS. This traceability obligation will last for at least fifteen (15) years after the last device supplied by SY has been placed on the market.
10.3 INCIDENTS AND CUSTOMER COMPLAINTS
The CLIENT must immediately inform SY as soon as it becomes aware of any complaint or report from healthcare professionals, patients, users or third parties, of suspected patient injury (including incidents and risk of incidents) or death related to the use of the Products, in written form. Incident risk or incident is defined as an incident involving a medical device that could lead to a deterioration in the state of health of a patient, user or third party. Incidents or risks of incidents are reported to SY, and communicated to the main e-mail address: complaint@symatese.com. The CLIENT shall cooperate to ensure that incidents/risks of incidents and customer complaints are investigated promptly and effectively.
- INTELLECTUAL PROPERTY
Unless otherwise agreed in writing, all Products shall be sold or resold in the packages or wrappings in which they were delivered by SY and in no event shall any mark other than the mark present on the goods at the time of delivery be affixed by the CUSTOMER in connection with the goods, or the mark present on the goods at the time of delivery modified by the CUSTOMER. The Agreement does not grant any right or license to the CLIENT under any patent, trademark, copyright, registered design or other intellectual property right, other than the right to use or resell the goods. SY reserves all its rights and prerogatives under copyright law and other intellectual property laws or regulations. SY has the right to use the information it has gathered in the course of executing an agreement also for other purposes, provided that, in so doing, no strictly confidential information of the CLIENT is made known to third parties.
- CUSTOMER DATA PROTECTION
The CLIENT authorizes SY to use, on a confidential basis and for the sole purpose of managing the CLIENT’s account, personal information concerning the CLIENT and relating in particular to the control of credit references, the verification and updating of data, invoicing, the control of credit limits, the return of PRODUCTS, credit notes, delivery notes and direct mail relating to SY’s PRODUCTS, services and commercial conditions. This information will be treated as confidential by SY and will not be disclosed to third parties unless required by law or unless such third parties process the information on behalf of SY in accordance with applicable data protection principles. Personal data protection laws and practices may differ, and may not offer the same level of protection outside the European Economic Area. By executing the transaction, the CLIENT gives its consent, on its own behalf and on behalf of its employees – the CLIENT will duly inform the latter – in exceptional cases where such consent is necessary, to the use, disclosure or transfer of personal data.
Customers may access their personal information and request corrections at any time by sending a written request to SY.
- INTUITU PERSONAE
Orders for PRODUCTS placed by the CUSTOMER are intuitu personae and the benefits thereof may not be passed on to a third party without SY’s express prior authorization.
- TERMINATION
SY may terminate any agreement governed by the General Terms and Conditions of Sale with immediate effect, without any obligation on its part to pay any compensation or indemnity, if :
- the CLIENT remains in default of payment on the due date(s), SY not being obliged to respect a notice period, or if
- the CUSTOMER has committed a serious breach of any clause of the General Terms and Conditions of Sale and has not remedied such breach within fifteen (15) calendar days of notification of such breach, or if the CUSTOMER is, or is likely to become, bankrupt or insolvent, or if any of the following proceedings are instituted against or by him: bankruptcy proceedings, proceedings in accordance with the law relating to the continuity of businesses, insolvency legislation or proceedings for reorganization, receivership, liquidation, dissolution or transfer of ownership.
- MODIFICATIONS
In the case of existing agreements relating to orders already placed, the General Terms and Conditions of Sale may only be changed or modified by means of a written agreement (e.g. Distribution Agreement), duly signed by SY and the CUSTOMER. With regard to agreements concerning new orders, SY reserves the right to modify the present version of the General Terms and Conditions of Sale at any time. Amended versions come into force as soon as they are circulated.
- APPLICABLE LAW – JURISDICTION CLAUSE
By express agreement between the parties, these General Terms and Conditions of Sale and Purchase are governed by French law.
ANY CONTINUING DISPUTE SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE COURT HAVING JURISDICTION OVER SY’S REGISTERED OFFICE, EVEN IN THE EVENT OF A WARRANTY CLAIM OR MULTIPLE DEFENDANTS, UNLESS SY PREFERS TO CHOOSE ANY OTHER COMPETENT JURISDICTION, IN PARTICULAR THAT OF THE SUPPLIER’S REGISTERED OFFICE OR THE PLACE WHERE THE PRODUCTS ARE LOCATED OR WHERE THE SERVICES ARE PERFORMED.