GENERAL TERMS AND CONDITIONS OF SALE

ARTICLE 1 – Scope

These General Terms and Conditions of Sale constitute, in conformity with Article L 441-6 of the Commercial Code, the single source of the commercial relationship between the parties. Their purpose is to define the terms and conditions under which VOGINNOV (“The Supplier”) supplies to the Professional Buyers (“The Buyers or the “Buyer”) who request it, via the internet site of the Supplier, through direct contact or in hard copy, the SOFTIM orthopaedic device (“The Products”).

They apply without any restrictions or reservations to all the sales concluded by the Supplier with the Buyers of the same category, regardless of the clauses which may appear in the Buyer’s documents, and in particular his general terms and conditions of purchase. In accordance with the regulations in effect, these General Terms and Conditions of Sale are systematically communicated to every Buyer that requests them, to allow him to place an order with the Supplier. They are also communicated to every distributor (except wholesale) prior to the conclusion of a single agreement listed in Article L 441-7 of the Commercial Code, within the legal deadlines. Any order for Products implies the Buyer’s acceptance of the General Terms and Conditions of Sale and the general conditions for the use of the Supplier’s internet site for electronic orders.

The information appearing in the catalogues, prospectuses and rates of the Supplier are provided for information purposes and may be revised at any time. The Supplier has the right to make any modifications he considers useful.

In accordance with the regulations in effect, the Supplier reserves the right to depart from certain clauses of the General Terms and Conditions of Sales, depending on the negotiations held with the Buyer, through the establishment of Special Terms and Conditions of Sale.

ARTICLE 2 – Orders – Rates
2-1 Orders
The orders are not complete until after express, written acceptance of the Buyer’s order, by the Supplier, who will make sure in particular that the products requested are available. This acceptance is provided in the form of an order confirmation summarising the conditions of the order sent to the Buyer electronically. The Supplier has electronic order resources (including acceptance and confirmation) which allow the Buyer to order the products under the most convenient and fastest conditions.

The orders are given with reference to the Products and will not be taken into account by the Supplier unless a minimum order of 10 units for every reference listed is given. Likewise, no order for an amount under Euro 150 including tax will not be accepted. For the orders given exclusively on the interest, the registration of an order on the Supplier’s site takes place when the Buyer accepts these General Terms and Conditions of Sale by ticking the box provided and validates his order by paying online (by bank card or transfer) the advance listed in §2-3 below.

This validation implies the acceptance of all these General Terms and Conditions and serves as proof of the sales agreement. For the other orders, the order is not validated until after receipt, by the Supplier, of the estimate and a copy of the General Terms and Conditions of Sale duly signed by the Buyer as well as the complete collection of the advance payment listed in §2-3 below. The acknowledgement of the order and its acceptance are confirmed via e-mail. The information registered in the Supplier’s computer system serve as proof of all the transactions concluded with the Buyer.

2-2 Modifications –
Cancellation Any modifications requested by the Buyer will not be considered unless they are notified in writing at least 10 days before the date anticipated for the delivery of the Products ordered, after signature by the Buyer of a specific purchase order and possible adjustment in the price. In the event of the cancellation of an order by the Buyer, after its acceptance by the Supplier, less than 15 days at least before the date anticipated for the supply of the Products ordered, for any reason whatsoever except force majeure, the advance payment made on the order, as defined in the article “Deliveries” of the General Terms and Conditions of Sale will be automatically retained by the Supplier and may not lead to any reimbursement.

2-3 Rates
The products are supplied at the Supplier’s rates in effect on the day the order is placed and, if need be, in the specific commercial offer sent to the Buyer. These rates are firm and cannot be revised during their validity, as indicated by the Supplier. These prices are net, excluding taxes. They include the transport, any customs duties and the insurance connected to the conveyance of the products to the delivery location. Special rate terms and conditions may be applied depending on the specific request of the Buyer concerning, in particular, the delivery methods and deadlines, or the payment deadlines and conditions. The Supplier will then send a special commercial offer to the Buyer.

ARTICLE 3 – Payment terms and conditions

An advance payment corresponding to 60% of the total purchase price of the Products listed above is required at the time the order is placed. The balance of the price is payable in cash on the day of the delivery, under the terms and conditions
defined in Article “Deliveries” below. The Supplier will not be required to deliver the products ordered by the Buyer if the price has not been paid under the terms and conditions and in the methods indicated above.

Payments may be made as follows:
– bank cards: Visa, Mastercard;
– bank transfer;
– bank check, for any order over or equal to Euro 150 including tax.

In the event of payment by bank check, it must be issued by a bank domiciled in Metropolitan France r Monaco. The check is sent for collection immediately. The payments made by the Buyer will not be considered final until after the actual ollection of the amounts due by the Supplier.

In the event of late payment of the amounts due by the Buyer beyond the deadline established above, and after the payment date listed on the invoice sent to him, late penalties calculated at the annual rate of 10% of the amount including tax of the price appearing on that invoice will be automatically and ipso jure acquired by the Supplier, without any formality or prior notice. In case of non-compliance with the payment terms listed above, the Supplier also reserves the right to suspend or cancel the delivery of the orders in progress from the Buyer, to suspend the implementation of his obligations, or decrease or cancel possible discounts granted.

Barring specific, prior, written agreement by the Supplier, and under the condition that the mutual receivables and debts are certain, liquid and payable, no compensation may be validly made in possible penalties for delay in the delivery or non-conformity of the products ordered by the Buyer on the one hand, and the amounts due by the Buyer to the Supplier for the purchase of said products, on the other hand.

Lastly, a flat-rate indemnity for collection costs, in the amount of Euro 40 will be due, automatically and without prior notice by the Buyer for a delay in the payment. The Supplier reserves the right to ask the Buyer for an additional indemnity if the collection costs actually incurred exceed that amount, upon presentation of proof.

No discount will be given by the Supplier for payment before the data appear on the invoice within a period lower than that listed in these General Terms and Conditions of Sale.

ARTICLE 4 – Discounts and rebates

The Buyer may benefit from the discounts and rebates appearing in the rates of the Supplier, depending on the quantities purchased or delivered by the Supplier at one time and place, or the regularity of his orders.

ARTICLE 5 – Delivery

The Products purchased by the Buyer will be delivered within a maximum of 45 days starting from the Supplier’s acceptance of the order and the collection of the advance payment due on that date. This deadline is not a strict deadline and the Supplier may not be held responsible by the Buyer in the event of a delay in the delivery not to exceed 30 days.

In the event of a delay of more than 30 days, the Buyer can request the termination of the sale. The advances already paid will then be returned by the Supplier. The Supplier’s responsibility cannot under any circumstance be invoked in the event of a delay or suspension in the delivery attributable to the Buyer or in the case of force majeure.

Delivery will be made to the address listed by the Buyer at the time of the order by direct delivery of the Products to the Buyer. The Buyer is required to check the visible condition of the products at the time of delivery. Without any reservations specifically issued by the Buyer at the time of delivery, the Products delivered by the Supplier will be considered as complying with the quantity and quality of the order. The Buyer will have 5 days starting from the delivery and receipt of the products ordered to send, in writing, such reservations to the Supplier. No complaint can be validly accepted if the Buyer does not comply with these formalities.

The Supplier will replace, as quickly as possible and at his expense, the Products delivered which the Buyer has duly proven do not comply.

ARTICLE 6 – Transfer of property – Transfer of the risks

6-1 Transfer of property

The transfer of property of the Products to the Buyer will only take place after his total payment of the price, regardless of the date of delivery of said Products.

6-2 Transfer of risks

The transfer to the Buyer of the risks of loss and deterioration of the Products will take place when those products are handed to the carrier for delivery, irrespective of the transfer of property, and regardless of the date of the order and its payment. The Buyer undertakes, consequently, to insure at his expense the products ordered, for the benefit of the Supplier, with an ad hoc insurance policy, until the complete transfer of property.

The Buyer acknowledges that it is the carrier who is responsible for making the delivery, the Supplier being considered as having fulfilled his obligation of delivery when the products ordered were handed to the carrier who accepted them without reservation. The Buyer, therefore, has no warranty claim against the Supplier in case of a fault in the delivery of the Products ordered or damages which occurred during the transport or unloading.

ARTICLE 7 – Liability of the Supplier – Warranty

The products delivered by the Supplier are covered by a contractual warranty of 12 months, starting from the date of delivery, covering the non-conformity of the products with the order and any hidden defect, resulting from a failure in material, design or manufacture affecting the products delivered and making them unsuitable for use. The warranty forms an indissoluble whole with the Product sold by the Supplier. The Product cannot be sold or resold altered, transformed or modified. This warranty is limited to the replacement or reimbursement of the products that are not compliant or defective. Any warranty is excluded in the event of misuse, negligence or failure of maintenance by the Buyer, as well as in case of normal wear of the Product or force majeure. In order to exercise his rights, the Buyer must under penalty of forfeiture of any relative action, inform the Supplier, in writing, of the existence of the defects within a maximum of 5 days starting from the time of their discovery.

The Supplier will replace the Products or parts under warranty that are considered defective or have them repaired. This warranty also covers the costs of labour. The replacement of the Products or defective parts will not extend the term set for the aforementioned warranty. Lastly, the warranty cannot apply if the Products were the subject of abnormal use, or were used under conditions different than those for which they were manufactured, in particular in case of noncompliance with the user instructions. It also does not apply in case of deterioration or accident resulting from impact, drop, negligence, defect in monitoring or maintenance, or also if the Product is transformed. It is specifically reiterated that it is the sole responsibility of the Buyer to determine the appropriateness of using the Products and their effectiveness relative to the therapeutic needs identified. The Supplier cannot under any circumstance be held responsible in this regard.

ARTICLE 8 – Intellectual property
The supplier retains all the rights of industrial and intellectual property pertaining to the Products, photos and technical documents which may not be communicated or executed without written authorisation.

ARTICLE 9 – Unforeseen event
In case of an unforeseen change of circumstances during the conclusion of the contract, in conformity with the provisions of Article 1195 of the Civil Code, the Party which did not agree to assume an excessively costly risk of implementation can request that the co-contractor renegotiate the contract.

ARTICLE 10 – Forced execution in kind
If one or other of the Parties defaults on their obligations, the Party t hat is the victim of the default has the right to require the forced execution in kind of the obligations resulting from this document. As exception to the provisions of Article 1221 of the Civil Code, the party with the benefit of the unfulfilled obligation may pursue this forced execution after simple notification, sent to the party required to fulfil the obligation by registered letter with return receipt has not been answered, regardless of the circumstances and even if an obvious disproportion should exist between the cost to the debtor, in good faith, and the interest for the creditor. As specific exception to the provisions of Article 1222 of the Civil Code, in the event of failure by one or other of the Parties to fulfil their obligations, the Party victim of the failure may not, himself, have the obligation fulfilled by a third party, at the expense of the defaulting Party. The party with the benefit of the unfulfilled obligation can demand in court that the defaulting Party advance the amounts necessary for this execution.  The Party victim of the default can, in case of non-fulfilment of any one of the obligations incumbent on the other Party, request the termination of the contract according to the methods defined in article “Termination of the Contract”.

ARTICLE 11- Plea for non-performance
We remind you that in application of Article 1219 of the Civil Code, each Party may refuse to execute their obligation even though due, if the other Party does not execute theirs and if this non-execution is sufficiently serious, namely, susceptible to calling into question the continuation of the contract or to fundamentally upset its economic equilibrium. The suspension of execution will take effect immediately, upon receipt by the defaulting Party of the notification of default sent to him for this purpose by the Party victim of the breach indicating their intention to invoke the plea of  onperformance provided the defaulting Party has not remedied the breach, notified by registered letter with return receipt or by any other lasting written medium which provides proof that it was sent. This plea for non-performance may also be used preventively, in conformity with the provisions of Article 1220 of the Civil Code, if it is obvious that one of the Parties will not fulfil their obligations incumbent on them by the due date and the consequences of this non-performance are sufficiently serious for the Party victim of the breach. This option is used at the risk and peril of the Party taking the initiative. The suspension of execution will take effect immediately, upon receipt by the Party pre sumed to be defaulting of the notification of the intention to have the preventive plea for non-performance applied until the Party presumed to be defaulting executes the obligation for which the breach occurred, notified by registered letter with return receipt or by any other lasting written means which provides proof that it was sent.

ARTICLE 12 – Force majeure
The Parties cannot be held liable if the non-performance or delay in the performance of any one of their obligations, as described in this document, stems from a case of force majeure, in the sense of Article 1218 of the Civil Code. The Party registering the event must immediately inform the other party of his inability to carry out his service and provide justification. The suspension of the obligations cannot under any circumstance result in liability for non-performance of the obligation in question, or lead to the payment of damages and interest or late penalties.

The performance of the obligation is suspended for the entire duration of the force majeure if it is temporary and does not exceed weeks. Consequently, as soon as the reason for the suspension of their mutual obligations disappears, the Parties will make every effort to resume as quickly as possible the normal execution of their contractual obligations. For this purpose, the Party that is prevented will notify the other party of the resumption of his obligation by registered letter with return receipt or any other extra-judicial document. If the impediment is definitive or is longer than 6 weeks, this document will be simply terminated as defined in article “Termination due to force majeure”. During this suspension, the Parties agree that the costs generated by the situation will be paid by the party impeded.

ARTICLE 13 – Termination of the contract
13-1 Termination for non-performance of a sufficiently serious obligation In case of a sufficiently serious non-performance of any one of the obligations incumbent on the other Party, the Party victim of the breach can notify by registered letter with return receipt the Defaulting Party, the termination due to default of this document, 30 days after formal notice to perform remains unanswered, in application of the provisions of Article 1224 of the Civil Code.

13-2 Termination due to force majeure
The termination ipso jure due to force majeure can, despite the Termination due to breach by one party of their obligation listed below, only take place 30 days after a formal notice is sent by registered letter with return receipt or any extra-judicial document. However, this formal notice must mention the intention to apply this clause. 13-3 Common provisions in case of termination It is specifically agreed between the Parties that the party obliged to pay under the terms of this agreement, will be validly notified by simple eligibility of the obligation, in conformity with the provisions of Article 1344 of the Civil Code. The services exchanged between the Parties from the conclusion of the contract and until its termination are only relevant by its full performance, and will give rise to total restitution. In any case, the injured Party can request in court that damages and interest be awarded.

ARTICLE 14 – Disputes
14-1 Prior Conciliation
In conformity with Article 1530 of the Code of Civil Procedure, in case of difficulties resulting from the implementation, interpretation or termination of their contract, the Parties undertake prior to any legal action, to submit their dispute to a competent conciliation centre according to the provision provided by the regulation of that centre.
In conformity with the provisions of Article 122 of the Code of Civil Procedure, the Parties will refrain from filing an action in court against the other, failing this they will be exposed to plea in bar. During the conciliation process, the limitation period is suspended thus, after two months, the conciliation attempt will be considered completed. On the other hand, by virtue of Article 1531 of the Code of Civil Procedure, the Mediator is subject to an obligation of confidentiality. Should the conciliation procedure fail, the Parties have the option to go to court. The expenses, disbursements, fees and conciliation costs will be divided equally between the Parties.

14-2 Jurisdiction
ALL DISPUTES WHICH MAY ARISE FROM THIS CONTRACT AND ITS AGREEMENTS, CONCERNING BOTH THEIR VALIDITY, INTERPRETATION, IMPLEMENTATION, RESOLUTION, CONSEQUENCES AND RESULTS WILL BE SUBMITTED TO THE COURT OF THE CITY OF STRASBOURG.

ARTICLE 15 – Applicable Law – Language of the contract
By specific agreement between the parties, these General Terms and Conditions of Sale and the resulting purchase and sales operations will be governed by French law. They will be written in French. If they are translated into one or more languages, only the French text will be taken as authentic.

ARTICLE 16 – Acceptance of the Buyer
These General Terms and Conditions of Sale as well as the rates and tables concerning the discounts and rebates attached, are specifically approved and accepted by the Buyer, who declares to be perfectly aware of them and waives, as a result, to use any contradictory document and, in particular, his own General Purchase Terms and Conditions.

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