General Conditions of Sale and Services WAINVAM-E

Reference 31 May 2022

 

Article 1: Generalities

The present general terms and conditions of sale and services (hereinafter referred to as the “CGVS”) cancel and replace the previous ones and are themselves likely to be the subject of a new edition. They detail the rights and obligations of WAINVAM-E and its customers in the context of the sales of products, processes, systems, consumables, solutions and associated services. All the services proposed by WAINVAM-E are intended for a professional clientele. In accordance with the article L 441-6 of the commercial code, the CGVS constitute the single base of the commercial negotiation, prevailing on the General Conditions of Purchase (CGA) of the Customer. The CGVS may be negotiated by any Customer who expressly requests it before placing an order. The negotiation of any clause will lead to the signature of Special Conditions.

 

Article 2: Descriptive documents and modification of the Products and/or Services

The characteristics of the Products or Services, such as appearing in the catalogs, prospectuses, technical sheets or any other commercial documents of WAINVAM-E, are provided only as an indication. WAINVAM-E reserves the right, in its capacity as manufacturer of the Products and supplier of Services, to modify their characteristics at any time, in particular to take account of any technical evolution or any modification of the regulations in force. WAINVAM-E is free to apply these modifications to the Products and Services ordered and not yet delivered.

 

Article 3: Sales Order

All Sales Orders placed by the Client must be sent to WAINVAM-E in writing, in whatever form. The Sales Order will only be considered firm once accepted by WAINVAM-E. Acceptance of the Order may result in shipment of the Products and/or production of the Services. Acceptance of the Order may be subject to the payment to WAINVAM-E of a deposit of 30% of the price of the Order, excluding tax, in particular in the case of financing of the Products and/or Services by a banking institution or by leasing. Any Order accepted by WAINVAM-E can be modified or cancelled only with the prior, express and written agreement of WAINVAM-E.

 

Article 4: Price

The prices of the Products and Services sold are those in force at the day of the order taking. For the articles in catalog deliverable on available or at short time, the applicable prices are those of the tariffs WAINVAM-E in force, packaging not included. They are denominated in Euro and calculated without taxes. For the other articles, the prices will be established according to the written agreement between the parties. The company WAINVAM-E grants itself the right to modify its prices at any time. However, it is committed invoicing the ordered products at the prices indicated at the time of the recording of the order. In accordance with the legislative and statutory provisions in force relating to the elimination of the waste of the electric, electronic, chemical or biological equipment, the Customer ensures and takes in his load the collection and the elimination of all his waste under the legal conditions.

 

Article 5: Delivery – Transport

Delivery is made either by direct delivery of the Product to the Customer, or by delivery of a report following the Services performed, at the place indicated by the Customer on the order form. The delivery time indicated at the time of the order confirmation is given as an indication and cannot be guaranteed given the production schedules and shipping times. Consequently, any delay in the delivery of the Products and/or the report will not give rise to the allocation of damages or the cancellation of the order in favour of the Customer. Any request by the Customer to postpone the delivery of the Products must be approved in advance by WAINVAM-E. It could give place to an invoicing for the expenses of storage and handling resulting from it. Any request by the Customer to advance the delivery of a Service report must be approved in advance by WAINVAM-E. An invoice for the cost of changing the schedule of Services may be established. The Products are delivered with INCOTERMS ® 2020CPT (“carriage paid to”) to the place indicated in the Order and the transfer of risks takes place on the date of their availability to the first carrier chosen by WAINVAM-E on behalf of the Customer. For export sales, the transfer of risks depends on the chosen INCOTERM. In the event of missing or damaged products during transport, the Customer will have to formulate all the necessary reserves on the delivery order with reception of the aforementioned products. These reservations must also be confirmed in writing to the carrier within two days of delivery, by registered mail. Any claim to WAINVAM-E for delivery not in conformity with the order must be made immediately and confirmed in writing within eight days of receipt of the Order. If no complaint is made, WAINVAM-E will be released from any obligation towards its Customer. Unless the Customer expressly refuses, WAINVAM-E may make partial deliveries.

 

Article 6: Installation of the Equipment

In the case where the installation of the Equipment (excluding spare parts) is provided for in the Special Conditions of Sale, this installation is carried out either directly by WAINVAM-E, or by an agent of its choice and includes the testing and commissioning of the Equipment as well as its handover. The installation of the Products can only take place subject to and after preparation of the site by the Customer according to the instructions of WAINVAM-E. The completion of the installation is materialized by the signature of an installation report by the Customer.

 

Article 7: Terms of payment

Unless otherwise agreed, invoices for catalog items are payable in cash on delivery, net and without discount, either by transfer from account to account or by confirmed and irrevocable letter of credit. The term of payment of the invoices is at the latest thirty days from the date of issue of the invoice. WAINVAM-E does not grant any discount. Payment must be made by the same legal entity that placed the order with WAINVAM-E. WAINVAM-E will not assume any bank charges when paying the invoice by bank transfer. All the expenses inherent to the payment, whatever its form, will be supported entirely by the Customer

The postponement of the due date, the non-return of the bill of exchange on the right date, the non-payment of a single bill of exchange or a single invoice entails by right, the forfeiture of the term and makes immediately payable all the claims of WAINVAM-E even not due. In the event of non-payment with expiry, the Customer will be automatically indebted of a penalty equal to the rate of the legal interest increased by 10 points, on the sums due, without damage with the exigibility of the debt and the rights to recourse of WAINVAM-E. Moreover, the Customer will be indebted of right of a fixed allowance for expenses of collection of 100€. If the aforementioned expenses prove to be higher, WAINVAM-E will be entitled to invoice an additional allowance corresponding to the real expenses of recovery, on justification. The Customer cannot proceed to any compensation not authorized beforehand by WAINVAM-E.

 

Article 8: Clause of property reserve

The company WAINVAM-E preserves the property of the sold Products until the integral collection of the price, in principal and accessories. For this reason, if the Customer is the object of a recovery or a legal liquidation, the company WAINVAM-E reserves the right to claim, within the framework of the collective procedure, the products sold and remained unpaid.

 

Article 9: Warranty

The warranty given by WAINVAM-E applies to all the constituent parts of a manual or defective equipment. The replaced parts become the property of WAINVAM-E. The warranty does not apply in the event of abnormal use, lack of maintenance or supervision, negligence, modifications or repairs using parts not manufactured by WAINVAM-E, or parts subject to wear. The duration of the contractual warranty is stipulated in the WAINVAM-E catalogs and on its website for each type of Product. The starting point of the warranty is the date of invoicing by WAINVAM-E. WAINVAM-E cannot be held responsible for any other warranty than the contractual warranty mentioned in this article. WAINVAM-E guarantees that its Products comply with its technical specifications, to the exclusion of any other guarantee of performance or result. No specific need of the Customer engages the responsibility of WAINVAM-E.

 

Article 10: After-sales service

The after-sales service of the Products put into service in Metropolitan France is ensured by WAINVAM-E on working days and hours between 9:00 am and 6:00 pm on a simple telephone call from the Customer confirmed by an order form signed by the Customer. After reception of the latter, WAINVAM-E confirms the date and time of its intervention. The Equipment can only be returned to the premises of WAINVAM-E for the purpose of after-sales service with the prior, express and written agreement of WAINVAM-E. The costs of transport, insurance and storage are to be borne entirely by the Customer. The conditions stated above are possibly completed by the provisions of a maintenance contract concluded between WAINVAM-E and the Customer. In case of contradiction with the provisions of the present article, the provisions of the maintenance contract prevail.

 

Article 11: Responsibility of WAINVAM-E. Damages and interests

WAINVAM-E assumes an obligation of means and not of result as for the relevance of the measurements carried out with its products. It cannot be held responsible for the negative consequences of a false measurement. WAINVAM-E will not be responsible either in case of abnormal use, lack of maintenance or supervision, negligence, modifications or repairs using parts not manufactured by WAINVAM-E. In the event that the responsibility of WAINVAM-E is called into play, the immaterial damages such as loss of profit, loss of production, loss of use, loss of image will not be compensated by WAINVAM-E.

 

Article 12: Software

WAINVAM-E remains the owner of the delivered Software. WAINVAM-E grants the Customer a non-exclusive, non-transferable, free and indefinite license to use the Software, for the sole purpose of using the Equipment. The license to use the Software shall automatically cease if the Customer sells the Equipment to a third party. No sub-license to use the Software may be granted by the Customer to a third party. The Customer shall not (i) copy or reproduce the Software and/or the related documentation, in whole or in part, by any means and in any form whatsoever, with the exception of a backup copy for its own archiving needs, replacement of a defective copy or the creation of an error detection program and/or (ii) decompile, disassemble or reverse engineer the Software, except insofar as this right is expressly recognized by the applicable law and within the sole limit of such recognition.

 

Article 13: Force majeure

Neither party may be held liable in the event of force majeure. Force majeure is defined as any event beyond the control of the debtor, which could not be reasonably foreseen at the time of the conclusion of the contract and the effects of which cannot be avoided by appropriate measures. In this case, the obligation shall be suspended until the event has ceased, unless the resulting delay or the definitive nature of the event justifies the cancellation of the order.

 

Article 14: Intellectual property rights

All rights and titles of intellectual property (in particular the royalties, the patents, the trademarks, the manufacturing secrets) attached to the Products, the packing or the documentation, as well as to the Services, belong exclusively, to WAINVAM-E. The Customer cannot claim to hold any right whatsoever on these goods. Nothing herein shall be construed as conferring any license or use of such rights. For the Services, the samples (products and/or cells) to be tested remain the property of Customer. Unless otherwise stated by the Customer, WAINVAM-E reserves the right to keep the samples sent by the Customer for its own use.

 

Article 15: Confidentiality

The commercial offers, the studies, documents and information of any nature communicated by WAINVAM-E, other than the printed matter of advertising character and the instructions of use, remain the property of WAINVAM-E, and are regarded as confidential. They may not, without the written permission of WAINVAM-E, be communicated to third parties, nor may they be used by the Customer for any purpose other than the use of the supply concerned.

The Customer and WAINVAM-E. commit themselves to keep confidential the information of some nature that it would have been able to know during the negotiation or the execution of the Contract. The obligation of confidentiality does not apply to information which (i) is already in the public domain at the time it is brought to the knowledge of the other party, (ii) is already known to the other party before it is transmitted, provided that the latter provides proof thereof by written documents, (iii) is communicated to the other party by a third party who has the right to make such communication and/or (iv) is required by any judicial or administrative authority or which is necessary for the defence of the rights of the party disclosing it. The obligation of confidentiality shall continue until the information is in the public domain or the party owning the information has given its prior express written consent to its disclosure.

 

Article 16: Restrictive measures on sales

Dual Use: Customer agrees to comply with the European Commercial Policy and Regulations on the export of dual-use goods available at the following link: http://ec.europa.eu/trade/import-and-export-rules/export-from-eu/dual-use-controls/index_en.htm

Prohibited Sales: Customer shall perform its obligations under the T&Cs in compliance with all applicable export, re-export and trade control regulations and sanctions regimes, including but not limited to the laws of the European Union and the United States of America. (a) Customer shall not sell, export, re-export or transfer, directly or indirectly, any goods, software or technology obtained from WAINVAM-E pursuant to the TOS to any place or to any person where such sale, export, re-export or transfer is prohibited or restricted by any Sanctions Regime and export, re-export and trade control regulations, including without limitation the laws of the European Union and the United States of America. (b) Customer represents and warrants that, as of the Effective Date, no export or foreign trade control or control under a Sanctions Regime impedes or prevents Customer from performing its obligations under the GTSA. Customer shall promptly notify WAINVAM-E of any change in such export and other foreign trade controls that would constitute an impediment or hindrance to Customer’s performance of its obligations under the GSC, and Customer shall keep WAINVAM-E informed of the consequences of such change. (c) Any breach of this clause shall constitute a material breach of the CGVS and of the contractual relationship with WAINVAM-E. (d) Customer shall cause these obligations to be imposed on any person to whom the products covered by these CGVS are sold, exported, re-exported and transferred in order to ensure that such person complies with its obligations under these CGVS, and shall provide Customer with an end-use certificate. (e) Upon request by WAINVAM-E, Customer shall provide end-use certificates to WAINVAM-E for the purpose of post auditing of end users. For purposes of this clause, the term “Sanctions Regime” means legislation or regulation in a country whose law applies in this case, concerning economic or financial sanctions or trade embargoes imposed, administered or enforced at any time by an authority with sanctioning power, including, without limitation, a national government, the United Nations Security Council, the European Union or the United States of America (or any of its member states).

Anti-Corruption: The Customer agrees to comply with all applicable laws and regulations in the performance of its obligations, particularly with respect to anti-corruption

 

Article 17: Termination or suspension clause

WAINVAM-E shall be excused from the performance of its contractual obligations, if and to the extent that the performance of such obligation violates or is in any way inconsistent with (a) any provision of law or regulation affecting WAINVAM-E’s ability to perform it, or (b) any contractual obligation imposed on WAINVAM-E adversely affecting WAINVAM-E’s financing agreements, or on its ability to raise funds within the EU, or the United States of America or on its ability to protect shareholders residing in the United States of America, or resulting in WAINVAM-E being deprived of the right to contract with any federal or local authority in the United States of America. The obligations imposed by the Purchase Order and the CGVS shall be suspended or terminated, upon notice from WAINVAM-E and to the extent imposed by the provisions and obligations set forth above in (a) and (b), notwithstanding any other provision hereof. WAINVAM-E shall provide Customer with appropriate evidence, such as official correspondence or legal notice, of the occurrence or continuance of any such legal impediment upon written request by Customer. WAINVAM-E will promptly notify the Customer when the conditions for resuming performance of its obligations are met pursuant to this provision.

 

Article 18: Personal data

The personal data communicated by the Customer are only those intended for the treatment and the execution of the sale, the provision of Services and the commercial relations. WAINVAM-E protects the private life of the Customer and respects the legislation in force relating to the personal data (RGPD). The Customer has a right of access, of modification, correction and suppression of the personal data concerning it. To exert his rights, the Customer can address a request by e-mail to the address [email protected] or by mail to the address: WAINVAM-E, 1 rue Galilée, Espace INNOVA, Parc Technologique de la Soye, 56270 PLOEMEUR.

 

Article 19: Litigations

Any dispute relating to the interpretation and the execution of the present CGVS will be subjected to the French law.   In the absence of amicable resolution, the dispute will be brought before the Commercial Court of Lorient in France.