General Conditions of Sale
Article 1 – PURPOSE AND SCOPE OF APPLICATION
1.1 These general terms and conditions of sale shall apply ipso jure to all sales of products by NIMESIS TECHNOLOGY, a simplified joint stock company with capital of 244,449 euros, whose registered office is located at 4 rue des Artisans Frontigny 57245 MECLEUVES, registered with the METZ Trade and Companies Register under number 508 776 010 (hereinafter “NIMESIS”) to professional Customers.
These general terms and conditions of sale constitute the sole basis for commercial negotiation with the Customer; acceptance of any sales offer from NIMESIS implies full acceptance of these general terms and conditions of sale, which shall prevail over any other general or special terms and conditions of purchase, in accordance with the provisions of article L.441-1 of the French Commercial Code.
1.2 All information and advertising documents, in particular catalogs, notices and advertisements issued by NIMEMIS are for information purposes only and are not contractually binding.
1.3 The fact that NIMESIS does not invoke, at any given time, any of the provisions of these general terms and conditions of sale may not be interpreted as a waiver of the application of these provisions. In accordance with current legislation, NIMESIS reserves the right to derogate from certain clauses of the present general terms and conditions of sale, depending on the negotiations conducted with the Customer, by drawing up special terms and conditions of sale. Any deviation from these general terms and conditions of sale will only be enforceable against NIMESIS in writing signed by a duly authorized representative of NIMESIS.
Article 2 – INTELLECTUAL PROPERTY AND CONFIDENTIALITY
2.1 All intellectual property rights (whether registered with any official agency or not), including know-how, drawings and models, copyrights, patents, trademarks and other rights incorporated in the products sold, documents of any kind relating thereto (technical, commercial or other), samples, prototypes and/or services provided by NIMESIS (the “Intellectual Property Rights“) remain the exclusive property of NIMESIS.
The Intellectual Property Rights may not be reproduced or used in any way by a third party, except with the express prior authorization of NIMESIS.
The Customer undertakes not to infringe or allow to be infringed in any way the Intellectual Property Rights and confidentiality relating thereto.
2.2 The “Confidential Information“All communications (oral, written, electronic or other), information and material (recorded, written, typed, photographed, electronic, digitized, encrypted or other) and in any form whatsoever (paper, electronic or digital recording, computer disk or drive or other), of any nature (technical, scientific, commercial, industrial, financial, logistical or other, including know-how) belonging to NIMESIS, which will be communicated to the Customer at the time of the sale or service or to which the latter may have access before, during, at the time of negotiations and/or subsequently within the framework of this Contract. The Customer confirms and expressly accepts the strict confidentiality of the Confidential Information. In this respect, it undertakes (i) to ensure the confidentiality of the Confidential Information in an appropriate manner, in order to prevent any disclosure to any third party whatsoever; (ii) to take all appropriate measures to ensure that this information is only used within the framework of the performance of the present contract; (iii) to disclose the Confidential Information only to those members of its staff with a genuine need to know (the “Confidential Persons”). Personal“(iv) ensure that Employees are fully informed of the strictly confidential nature of said information.
This obligation shall apply during the period of performance of the present contract and for a period of ten (10) years from its termination. All Confidential Information remains the sole property of NIMESIS. The Customer may not use the Confidential Information for any purpose other than the present contract, in particular (without this list being exhaustive) to manufacture, have manufactured, copy or reproduce all or part of the products sold or of NIMESIS’ know-how. The Customer shall return them to NIMESIS and/or destroy them at the latter’s written request.
In the event of any inconsistency between this confidentiality clause and any confidentiality agreement specifically entered into between the Customer and NIMESIS, the confidentiality agreement shall prevail.
Article 3 – ORDERS
3.1 Contract formation
3.1.1 Any sale will only be formed upon (i) express written acceptance of the Customer’s order by NIMESIS and (ii) receipt of any agreed down payment.
3.1.2 For any product subject to specifications entirely defined by the customer with a view to being integrated into its own production, a specific order will be placed by the latter and will only become effective after the conclusion of a written agreement drawn up in application of article L441-5 of the French Commercial Code, defining in particular the deadlines and the respective roles of the parties.
3.1.3 Orders must be made in writing by means of an order form dated and signed by the Customer.
3.1.4 All orders will be deemed rejected unless expressly accepted by NIMESIS within ten (10) days of receipt.
3.1.5 Acceptance of orders is in any case subject to available stocks and NIMESIS’s manufacturing capacity.
3.1.6 No order for less than five hundred (500) euros excluding VAT will be accepted.
3.1.7 Orders transmitted are irrevocable for the Customer, unless waived in writing by NIMESIS.
3.2 Cash payment
Acceptance by NIMESIS of the orders presented to it is subject to the Customer providing sufficient financial guarantees and undertaking to pay the price of the products ordered on the due date. Consequently, in the event that NIMESIS has serious reasons to fear payment difficulties on the part of the Customer on the date of presentation of the order or subsequent thereto, or if the Customer no longer presents the same financial guarantees as on the date of acceptance of the order, NIMESIS may make acceptance of the order or the continuation of its execution subject to cash payment by the Customer of all or part of the amount of the order in question, or to the provision of payment guarantees for the benefit of NIMESIS.
3.3 Refusal to order
Subject to the mandatory provisions of the applicable regulations, NIMESIS retains the discretionary power to refuse any order without having to justify this to the customer.
In addition, Nimesis may question an accepted order in the event that the customer remains indebted to Nimesis for previous orders, despite a formal notice that has remained without effect: NIMESIS may then refuse to honor the new order and deliver the merchandise mentioned therein, without the customer being able to claim any compensation, for any reason whatsoever.
3.4 Order modification or cancellation
3.4.1 Any request to modify the composition or volume of an order placed by the Customer will only be taken into account by NIMESIS if it is submitted in writing, no later than five (5) days from receipt by NIMESIS of the initial order.
3.4.2 In the event of total or partial cancellation of an order, even with the agreement of NIMESIS, the Customer will remain liable for the price of the products whose manufacture has commenced, as well as for all costs or charges incurred by NIMESIS in respect of the said order (in particular, without limitation, for the purchase of components, sub-assemblies, materials, etc.). All sums previously paid by the Customer will (unless expressly agreed otherwise) be definitively acquired by NIMESIS.
Article 4 – DELIVERY
4.1 Deadlines
4.1.1 Delivery times are indicative and depend on the order of arrival of orders, the availability of raw materials and carriers.
4.1.2 Delays in delivery may not give rise to any penalty or indemnity, nor be grounds for termination or cancellation of the order. However, in the event of a delay of more than sixty (60) days, and if the delay is not attributable to force majeure or to the Customer or any third party, the Customer may request that the Contract be terminated, and will then recover the deposit paid to NIMESIS. If the Customer has not fulfilled its obligations within the required deadlines, (in particular late payment, late payment of contractual instalments, late supply of any technical specifications) or in the event of climatic, social, political, health, economic or technical events likely to hinder the performance of the Contract, NIMESIS shall be entitled to recover the instalment paid to NIMESIS, economic or technical events likely to hinder the normal operation of NIMESIS’ business and/or its supply of raw materials or energy (including the cases of force majeure referred to in article 9 below), NIMESIS’ delivery time will be automatically extended by a period at least equal to the delay thus suffered (whether caused by the Customer, the third party or the external event concerned).
4.2 Risks – Delivery
4.2.1 Unless specifically agreed otherwise between the parties, all deliveries are deemed to have been made to the NIMESIS premises, whatever the means of transport. Delivery is deemed to have been made either by direct collection from the customer, by notice of availability, or by delivery of the products to a carrier appointed by the customer.
Si le client ne souhaite pas s’occuper du transport, le choix du transporteur et du mode de transport utilisés pour l’acheminement des produits reviendra à NIMESIS, en fonction notamment de la nature et des quantités de produit(s) commandé(s) et de leur destination. Le client peut choisir s’il le souhaite soit une refacturation des frais de transport et d’assurance (lorsqu’il y en a) soit de s’occuper lui-même de la récupération des produits (FCA) chez NIMESIS.
4.2.2 For all deliveries in mainland France (including Corsica), the application of Incoterms 2020 FCA implies the transfer of risks when the goods are handed over by NIMESIS to the carrier, so that they travel at the Customer’s risk.
In the case of sales abroad (or in French overseas territories), it is specified that NIMESIS sales are always made FCA Mécleuves, as defined by Incoterms 2020, with all the resulting obligations for each of the parties.
4.2.3 When delivery is made in accordance with Incoterms 2020 FCA, the Customer undertakes to take out all necessary insurance policies to cover these risks.
4.3 Transport
4.3.1 At the customer’s request, NIMESIS will send an estimate /e-mail of transport costs, bearing in mind that the prices set out in the NIMESIS product catalog are exclusive of transport and customs costs (in accordance with article 5.3 of these general terms and conditions).
4.3.2 In any event, the Customer undertakes, in accordance with Incoterms 2020 (as applicable), including when the Customer is responsible for choosing the carrier, to pay the transport costs within the allotted time, either directly to the carriers or to NIMESIS in the event that the latter has made an advance payment.
In the event of a breach of this obligation, established by any means, NIMESIS reserves the right to claim from the Customer, in addition to the price of the products, a sum equal to the amount due to the carrier in order to be able to pay the carrier in lieu of the defaulting Customer.
4.4 Acceptance
4.4.1 Conformity check
When products are delivered in accordance with Incoterms 2020 FCA, it is the Customer’s responsibility, in the event of damage to the products delivered or missing products, to make all necessary reservations with the carrier in good time. NIMESIS declines all responsibility in the event of loss, theft, damage, destruction, deterioration or other events occurring after the products have been handed over to the carrier at the arrival terminal.
The costs and risks associated with this verification shall be borne by the Customer. It is reminded that some products are of a very specific nature and may be dangerous. It is the Customer’s sole responsibility to ensure that products are handled with care by suitably qualified personnel.
Unconditional acceptance of the products ordered by the Customer covers all apparent defects and all missing products. Any product that has not been the subject of reservations with the carrier, by registered letter with acknowledgement of receipt or extrajudicial document, within three (3) working days of its receipt, in accordance with article L.133-3 of the French Commercial Code, and a copy of which will be sent simultaneously to NIMESIS, will be considered to have been duly received in perfect condition and accepted as such.
4.4.2 Complaints
Without prejudice to the measures to be taken by the Customer vis-à-vis the carrier under the terms of article 4.4.1 above in the event of apparent defects or missing products, any complaint, of whatever nature, concerning the products delivered, will only be admissible if it is made in writing, addressed by registered letter with acknowledgement of receipt to NIMESIS within eight (8) days of receipt of the products concerned by the Customer or his agent (including his carrier or commission agent in the event of application of the Incoterm 2020 FCA).
The customer must prove the existence of defects or missing products by producing any element likely to justify his complaint (in particular photographs, order form, delivery note, etc.).
If the conditions set out in articles 4.4.1 and 4.4.2 are not complied with, the products will be deemed to be in conformity and NIMESIS may no longer be held liable.
A complaint made by the Customer under the conditions and according to the procedures described in the present article neither suspends nor alters the obligation to pay for the products concerned.
4.5 Returns
4.5.1 Terms and conditions
Product customers are professionals.
Only products that do not conform to the order may be returned to NIMESIS.
All product returns are subject to prior written agreement between NIMESIS and the Customer. Any product returned without this agreement will be held at the Customer’s disposal and will not give rise to any credit note.
Returned products must be in the condition in which NIMESIS delivered them.
Only the carrier chosen by NIMESIS is authorised to return the products concerned when the return is at the expense of NIMESIS.
NIMESIS shall only be liable for the cost of returning products in the event that the apparent defects or shortages claimed are actually observed and recognized by NIMESIS as being its fault.
4.5.2 Consequences
Provided that the provisions of article 4.4.1 have been complied with, any return accepted by NIMESIS will give rise, at the Customer’s choice, after quantitative and qualitative verification by NIMESIS, to the replacement free of charge of the non-conforming products and/or to the addition of the missing products at NIMESIS’s expense or to the issue of a credit note relating to the products concerned, to the exclusion of any compensation or other claim such as the cancellation of the order.
Any return made in violation of the terms of article 4.4.1 will result in the loss, for the Customer, of the sums already paid for the purchase of the returned products. Products returned in this way will be held at the Customer’s disposal and will not give rise to any credit note.
Article 5 – PRICES
5.1 Products are sold at the price in force on the date of acceptance of the order by NIMESIS.
5.2 In the event of a special order (in particular for products with specific characteristics and/or not included in the NIMESIS catalog), said products will be sold on the basis of a specific quotation, at the price indicated therein.
5.3 Prices are exclusive of VAT. They do not include transport, nor any customs charges, nor insurance covering the risks associated with the transport and storage of the products, which remain the responsibility of the Customer, unless otherwise agreed in writing.
5.4 Prices are calculated net, without discount.
5.5 In the case of quantity-based prices, any order for smaller quantities will be subject to a change in the applicable price. In addition, special pricing conditions may be applied according to the customer’s specific requirements, in particular as regards delivery terms.
5.6 The customer may benefit from discounts, rebates or refunds, depending on the quantities purchased and delivered at a single time and place, or on the regularity of its orders.
Article 6 – PAYMENT METHODS
6.1 Terms of payment
Unless otherwise expressly agreed by NIMESIS, payment of a deposit corresponding to thirty percent (30%) of the total purchase price of the products is required when the order is placed.
The balance of the price is invoiced on collection of the products ordered and must be paid in accordance with the provisions of article 6.2 below.
Prices are payable by cheque, bank transfer or raised bill of exchange.
No set-off is permitted between any claims by the Customer and sales invoices from NIMESIS, including in the case of sums due on both sides: any set-off will require the prior written agreement of NIMESIS.
6.2 Payment terms
In accordance with article L.441-10 of the French Commercial Code, NIMESIS invoices are payable within thirty (30) days of receipt of the products ordered.
The due date is indicated on the invoice.
Only the actual cashing of bills of exchange will be considered as full payment within the meaning of the present terms and conditions of sale.
NIMESIS does not grant any discount for cash or advance payment.
6.3 Late payment
Unless deferred payment is requested by the Customer in good time and expressly accepted in writing by NIMESIS, failure to pay for products by the due date shown on the invoice will automatically result in the immediate payment of all sums due by the Customer, including VAT, regardless of the method of payment used, as well as the payment, as a penalty clause, of compensation equal to fifteen percent (15%) of the said sums, in addition to the automatic application from the following day of the late payment penalties provided for in article L.441-10 of the French Commercial Code. These late payment penalties will include the application of annual interest equal to eight percent (8%) of the total sums due by the Customer for the invoice in question.
In addition, and in accordance with the provisions of articles L.441-10 and D.441-5 of the French Commercial Code, any delay in payment will automatically entail, in addition to late payment penalties, the obligation for the defaulting Customer to pay NIMESIS a minimum fixed indemnity of forty (40) euros for collection costs. An additional indemnity may be claimed, upon presentation of proof, when the collection costs incurred by NIMESIS exceed the amount of the fixed indemnity.
These penalties may, if NIMESIS sees fit, be deducted ipso jure from any sums it may owe the Customer (and in particular from any discounts or rebates).
Without prejudice to the foregoing, any delay in payment shall entitle NIMESIS to suspend all outstanding orders immediately and without further formality. In addition, in the event of late payment of all or part of the price for more than eight (8) days from the date of an unsuccessful formal notice, the sale may, at NIMESIS’ discretion, be terminated by the latter, which may request in summary proceedings the return of the products, in addition to all damages and interest. Termination may apply not only to the current order, but also, at NIMESIS’s discretion, to all previous unpaid orders, whether delivered or in the process of being delivered, and whether or not payment is due.
Similarly, where payment is to be made in instalments, non-payment of a single instalment will result in immediate payment of the entire debt, without prior formal notice.
In all cases, any sums due for other deliveries or for any other reason will become immediately payable.
Any partial payment will be applied first to the non-preferential part of the claim, then to the sums that fell due the earliest.
6.4 Settlement guarantee requirement
Any deterioration in the customer’s creditworthiness may justify the requirement of a guarantee or payment, in cash or by draft payable on demand, of all or part of the order amount, prior to the execution of orders received. This will be the case, in particular, in the event of a change in the capacity of the debtor, in its professional activity, in the person of its directors, in the ownership structure of its share capital or in the form of the Customer’s company, or if a transfer, lease, pledge of the Customer’s business or the contribution of the Customer’s business to a third party is likely to have an unfavorable effect on the Customer’s credit.
6.5 Billing
An invoice is drawn up and sent to the Customer for each delivery, the latter taking place, unless otherwise stipulated in writing, on collection of the products.
Article 7 – PACKAGING
Unless specific packaging is requested, which will be subject to a prior quotation, the price of products sold by NIMESIS is inclusive of packaging.
Article 8 – RESERVATION OF TITLE CLAUSEThe transfer of ownership of the products is subject to full payment of the price in principal and accessories. The mere delivery of a bill of exchange or other instrument creating an obligation to pay does not constitute payment within the meaning of this clause, the original claim of NIMESIS on the Customer subsisting with all the guarantees attached thereto, including the reservation of title until the sum corresponding to the said bill of exchange has actually been collected. The present clause maintains NIMESIS’s right of ownership of the products sold, allowing it to repossess them, wherever they may be, until the price has been paid in full. The present clause does not prevent the transfer of the risks associated with the products to the Customer as of delivery in accordance with the provisions of article 4.2 above. Consequently, the Customer must insure the products, for the benefit of NIMESIS, until the transfer of ownership and must provide proof of this to NIMESIS upon simple request. Failing this, NIMESIS shall be entitled to delay delivery until such proof is provided. The Customer must keep the products in good condition, identifying them and separating them from the other products located on its premises, which must be made accessible to NIMESIS in the event of implementation of this clause. The customer must inform NIMESIS immediately in the event of seizure or any other intervention by a third party on the products, in order to enable NIMESIS to oppose such intervention and preserve its rights. In addition, the customer may not pledge or assign as security the ownership of products for which the price has not been paid in full to NIMESIS. Termination of any order by NIMESIS pursuant to these general terms and conditions of sale shall entitle NIMESIS to immediately claim all products in stock from the Customer. Any deposit paid by the Customer will be retained by NIMESIS as a lump-sum compensation, without prejudice to any action that NIMESIS may be entitled to take against the Customer as a result. |
Article 9 – FORCE MAJEURE
NIMESIS is exonerated from the consequences of non-performance of one or more of its obligations where such non-performance results from an impediment beyond its control, which it could not reasonably be expected to have taken into consideration at the time of conclusion of the Contract, to have prevented or overcome, or to have prevented or overcome its consequences. In particular, the following events are considered as such an impediment exonerating it from liability: partial or total strike, lockout, interruption or disruption of transport, total or partial confinement of the population, pandemic-type health crisis, fire, storms, other natural disasters, supply incidents, etc.
Article 10 – GUARANTEE
10.1 Scope
Products are guaranteed against all duly established material and manufacturing defects for a period of twelve (12) months from the date of delivery, which is understood to be the date shown on the delivery note given directly to the Customer or to the carrier.
This warranty is limited to the replacement or reimbursement of products affected by such a defect. The warranty under the terms of the present article 10 is the only remedy that may be claimed by the Customer, to the exclusion of any damages or other remedy of any nature whatsoever.
Any intervention by NIMESIS shall not have the effect of extending the warranty period.
10.2 Exclusions
The present warranty does not cover apparent defects. Also excluded from the present warranty are defects and deterioration caused by natural wear and tear or by an external accident (defective maintenance, abnormal use, etc.) or by a modification of the product not foreseen or specified at the time of order, misuse, negligence or by any case of force majeure.
The order of semi-finished products (particularly in the medical or paramedical field) formally excludes any use of said products as they are: it is the Customer’s responsibility to transform the products purchased from NIMESIS into finished products, in compliance with the rules of the trade and any regulations, standards or specifications that may apply to its own finished products. The medical or paramedical components manufactured by NIMESIS are unfinished products and may under no circumstances be used as they are in the human body.
10.3 Deadline for implementation on pain of forfeiture
In order to assert its rights, the Customer must, under penalty of forfeiture of any action relating thereto, inform NIMESIS by registered letter with acknowledgement of receipt, of the existence of the defect under warranty within a maximum period of fifteen (15) calendar days from its discovery.
Article 11 – LIMITATION OF LIABILITY
THE AGGREGATE LIABILITY OF NIMESIS (INCLUDING ITS SUBSIDIARIES, OFFICERS, EMPLOYEES AND AGENTS) ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER LEGAL THEORY, SHALL IN NO EVENT EXCEED THE AMOUNT, EXCLUSIVE OF TAXES, OF THE INVOICE MADE PAYABLE TO THE CUSTOMER IN RESPECT OF THE ORDER TO WHICH THE CUSTOMER’S CLAIM RELATES. THE CUSTOMER AGREES THAT NIMESIS SHALL IN NO EVENT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF THE ORDER OR THE CONTRACT, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFIT, LOSS OF OPPORTUNITY OR LOSS OF CONTRACTS, LOSS OF REVENUE, LOSS OF GOODWILL, DAMAGE TO REPUTATION OR PUBLIC IMAGE, OR COSTS OF PURCHASING AND/OR COMMISSIONING SUBSTITUTE OR REPLACEMENT PRODUCTS, WHETHER OR NOT SUCH DAMAGES WERE KNOWN TO NIMESIS.
In any event, any liability on the part of NIMESIS to the Customer shall in no way relieve the Customer of its obligation to pay all sums due under any invoices issued by NIMESIS, in accordance with these general terms and conditions.
Article 12 – TERMINATION
In the event of a breach by the Customer of any of its obligations hereunder, which is not remedied within thirty (30) days of the occurrence of said breach, NIMESIS may, at its option, terminate all or part of the present contract ipso jure and without formality, without prejudice to any subsequent claim for damages against the Customer.
Article 13 – DISPUTES – JURISDICTION – APPLICABLE LAW
Any dispute relating to the sale of products (and in particular those relating to the formation of the order and its execution) which is not resolved amicably between NIMESIS and the Customer, will be subject to the exclusive jurisdiction of the Commercial Chamber of the METZ Judicial Court, even in the event of multiple defendants and/or warranty claims.
The court seized of the matter will apply French law.
The present clause applies in the event of summary and/or incidental proceedings, regardless of the method of payment agreed with the Customer, and notwithstanding any jurisdiction clause that may appear in the general terms and conditions and/or any other legal documents issued by the Customer.
The French language is the official language of any sale made under these terms and conditions of sale, and shall be the sole authentic language in the event of a dispute.
