FIRST LIGHT IMAGING SAS (FLI)
GENERAL SALES CONDITIONS
1. Application of the General Conditions of Sales
These general conditions of sale are applicable to all sales of scientific instruments and cameras commercialized by FLI (hereinafter known as the « Products ») and for all clients. The act of filing an order and the acceptance of such by FLI implies the full acceptance without reserves by the Purchaser of these general conditions of sale. No specific condition may take precedence over these general conditions without FLI’s formal acceptance in writing.
Any estimate provided by FLI shall be considered null and void if it has not been accepted in writing. Estimates are valid for thirty (30) days from the date of issue and may be cancelled early by FLI provided the Purchaser is given notice of such cancellation.
Orders are filed by the Purchaser with FLI via the signature of a contract to which are annexed the specifications of the Products ordered and their price.
4. Specific cases of sales for export of “dual-use” goods and technologies
4.1. Certain Products offered for sale by FLI fall within the scope of the definition of “dual-use goods” (civil and military) governed by regulation n°428/2009 of the council of 5 May 2009 establishing a community regime for verification of exports, transfers, brokering and shipping of dual-use goods, and thus is subject to export authorization by the French government (Ministère de l’Economie, de l’Industrie et de l’Emploi, Service des Biens à Double Usage/French Ministry of Finance, Industry and Employment, Dual-Use Goods Service), in application of such community regulation, n°428/2009.
4.2. Consequently, Sales for Export outside of the European Community of “dual-use” goods are subject to the suspensive condition of the obtaining of an export license by FLI.
4.3. In these cases, the Purchaser hereby states that it is acquiring the Product for its personal use and is hereby informed that the sale may not be transferred to any third party.
4.4. For the purpose of obtaining the export license, the Purchaser must complete and sign, in its capacity as end user of the Product and under its sole responsibility, the end-user certificate to be submitted to the French Administrative Authorities, and any other document that may be required by the French and/or European Administrative Authorities.
5. Payment conditions
5.1. The price will be paid according to the following conditions :
- 50 % on order,
- 50 % on delivery
5.2. In the specific case of sales that are subject to regulations applicable to “dual-use” goods, the price will be paid according to the following schedule :
- 10 % on order,
- 40 % within 15 days after notification to the Purchaser of the obtaining of the export license,
- 50 % on delivery.
If the export license application is rejected by the Ministry of Industry, FLI will reimburse the Purchaser for the amount of the initial 10 % deposit within 15 days of express notice of such rejection or after the expiration of a period of 9 months which is valid for tacit rejection, with no interest due on the amounts to be restituted.
5.3. Any payments that are not made within the time period allotted for such will bear interest at the rate of 12 % annually, calculated on a pro rata temporis basis, with no requirement for FLI to give notice of such to the Purchaser.
5.4. In the event of failure to pay all or part of the price on the date such payment becomes due, the sale may be cancelled automatically at FLI’s initiative, after it has sent a registered letter for notice that remains without response. FLI may keep all deposits paid as a one-time, lump-sum indemnity.
6.1. The Products sold by FLI are manufactured to order and will be delivered no later than 12 months, after receipt of the initial deposit of 50 % of the sale price.
6.2. For all sales that are subject to regulations on “dual-use goods”, manufacture is only started after the obtaining of the export license and payment of the second installment, and thus FLI is not able, on the date of signature of this Order, to commit to a specific date for delivery. The Products will be delivered no later than 12 months from the date of receipt of the export license and payment of the second installment of 40 % of the sale price, except in cases of force majeure.
6.3. In any event, delivery within the time periods allocated for such can only take place if the Purchaser is up to date in its obligations to FLI.
7. Verification of compliance and delivery
7.1. After manufacture, FLI will carry out all verifications and testing necessary to ensure that the Product is in compliance with the specifications agreed to. FLI will inform the Purchaser of the date on which such verifications will be carried out so that the Purchaser, its representative or its agent may be present at such, at its own expense.
7.2. If the verification of the Product’s compliance to specifications is satisfactory and if the Purchaser, its representative or its agent is present during such verification, the compliance report will be submitted to the Purchaser or its representative or agent and an acceptance report for the Product will be made. The Purchaser, its representative or its agent may then take possession of the Product immediately if the Purchaser so desires.
7.3. In the absence of the Purchaser, its representative or its agent during the verification of compliance, the compliance report will be sent to the Purchaser in order to guarantee compliance of the Product to the specifications agreed to. On receipt of such report, the Purchaser must return this report after signing it, as proof of its acceptance of the compliance report.
7.4. On FLI’s receipt of the report signed by the Purchaser, FLI will inform the Purchaser of the date on which the Product may be collected from the site. Delivery of the Product is made EXW (Incoterms 2010), thus it is the Purchaser’s responsibility to collect the Product from FLI’s premises, either personally or through its authorized agent, at FLI’s registered offices, within fifteen days (15) from receipt of the notice of availability. At the expiration of this period, the Purchaser will bear all risk of loss or damage. Furthermore, if the Purchaser does not take delivery within the time period allocated for such, FLI is entitled to dispose of the Product in the manner it chooses, and/or hold the Purchaser responsible for all storage fees, without prejudice to any other indemnification to which it is entitled under the delay.
7.5. Verification of the Product’s condition on delivery is the responsibility of the Purchaser or its representative.
7.6. The Purchaser will organize the collection of the Product by the representative or agent of its choice, and the shipping of the Product. The Purchaser assumes all risks related to shipping and delivery to its own premises. The Product will be shipped at the Purchaser’s risk and peril. The Purchaser’s attention is drawn to the need to take out all necessary insurance, to verify the condition of the package on delivery and, where appropriate, and to issue all reserves to the shipper by registered letter.
7.7. FLI undertakes to provide, on the date of delivery of the product, all technical manuals and instructions.
8. Claims relating to compliance failures
8.1. Any claims as to the Product’s failure to comply must be justified and sent by electronic mail to the following address: firstname.lastname@example.org, and by regular mail with return receipt requested to FLI’s address within one month of delivery.
8.2. The burden of proof of any such failures or defects lies with the Purchaser.
8.3. In the absence of any claims or complaints in the form and within the time periods set forth herein, the Purchaser will be considered as having accepted the Product without reservations.
8.4. The Product may not be returned by the Purchaser without FLI’s written consent. The Product must be returned in the same condition in which it was delivered within 30 days from the date authorization is granted for its return. All costs and risk incurred in connection with the return of the Product shall be borne by the Purchaser. In the event of a return without prior consent, the Product shall remain at the Purchaser’s disposition.
9. Obligations and representations of the Purchaser
9.1. The Purchaser hereby undertakes to use the Product in conformity with FLI ‘s instructions and technical manuals.
9.2. The Purchaser hereby undertakes to provide regular maintenance for the Product as recommended by FLI in the instructions and technical manuals.
9.3. In the event of a sale that is subject to the laws on “dual-use goods”, the Purchaser hereby certifies that the Product is intended strictly for civil use and undertakes to complete, in its capacity as final user, the final user certificate (CERFA form n°12659*01).
10. FLI’s legal guarantee and limit to the guarantee
10.1. FLI hereby exclusively guarantees the Product’s compliance with the specifications agreed to within the limits of the legally applicable provisions.
10.2. FLI’s guarantee is exclusively limited to repairs or replacement of any parts that are not in compliance.
10.3. If after reasonable efforts, FLI is not able to replace the non-compliant Product, the guarantee will be limited exclusively to the reduction of the purchase price or reimbursement of the price (after deduction of depreciation for wear and tear), after the Product is returned by the Purchaser.
10.4. FLI will not be liable for any indemnification of the Purchaser for specific or indirect damage, opportunity cost, loss of income, loss of enjoyment, damage to individuals or goods not related to the purpose of the contract.
10.5. For parts or supplies that are not manufactured by FLI, the guarantee is limited to those to which FLI is entitled from its own suppliers.
10.6. This guarantee does not cover the defects of the Product resulting from any cause external to the Product, such as :
- Failure to comply with FLI’s recommendations,
- Mishandling by the Purchaser,
- Intervention by a third party involving the Product,
- Poor maintenance or misuse of the Product,
- Wear and tear,
- Damage caused by elements external to the Product or attributable to a case of force majeure: fire, lightning, water damage, external accident, etc.
11. FLI’s liability
11.1. The Products are sold by FLI in compliance with French laws in effect. FLI cannot be held liable for any failure to comply with the laws in the countries where the Product will be used.
11.2. In the event where FLI s is held liable due to its failure to satisfy any of its contractual obligations, the Purchaser may not seek any indemnification for loss of income or opportunity cost, loss of enjoyment, specific, accessory or indirect damage to individuals or to goods or assets, caused by any failure in the performance of its obligations. The total amount of the indemnities that FLI may be required to pay to the Purchaser in remedy for the prejudice it suffers may not exceed the amounts paid by the Purchaser for such Product, regardless of the legal grounds for the claim and the procedure employed to resolve it.
12. Liability in connection with defective products
FLI’s liability in connection with defective products excludes remedy for any damage caused to the products through commercial use.
13. Retention of ownership
13.1. The Purchaser may not, for any reason whatsoever, sell the Product until the price has been paid in full to FLI.
13.2. FLI retains ownership of the Product until full payment of its price in the principal and accessory amounts.
13.3. The above provisions are not in any way an obstruction to the transfer to the Purchaser, from delivery of the Product, of the risks in connection with loss or deterioration and damage that may occur. The Purchaser hereby undertakes to take out insurance guaranteeing it against these risks from the date of delivery of the Product.
13.4. In the event of failure to pay the balance of the price on delivery, FLI retains ownership of the Product and may refuse to deliver the Product. It may terminate the contract automatically in the event of failure to pay the balance of the price, one month after receipt by the Purchaser of a notice that remains without response. Any installments or deposits paid by the Purchaser may be kept by FLI as damages and interest
14. Force majeure
14.1. FLI is released from its contractual obligations in all cases of force majeure. The following cases are considered as cases of force majeure or unforeseeable circumstances: employee or shipper strikes, flood, fire, storm, epidemic, energy cuts or raw material shortages, interruption to means of transport. In cases of force majeure, FLI will inform the Purchaser, by any means available, as rapidly as possible.
14.2. The obligations of the parties are suspended for the duration of the event of force majeure, and the Parties will use their best efforts to limit the duration and impact of the cause of the event of force majeure.
14.3. However, if such duration exceeds 12 months, the Parties will seek an agreement on the conditions applicable to the continuation or the termination of this agreement
15. Partial invalidity
If any of the provisions of these general conditions of sale becomes null or void or no longer effective in part or in whole, by a decision or event that is independent of the will of either of the Parties, such loss of validity or effect shall not affect the remaining stipulations of the general conditions of sale.
16. Applicable Law
The sales entered into with FLI are governed by and interpreted under French law, including the United Nations Convention for Contracts for the International Sale of Goods of 11 April 1980.
17. Clause attributing jurisdiction
Any dispute that may arise between the Parties in connection with the validity, performance, interpretation or termination of this contract shall be brought for resolution before the relevant Court of Marseille, France.