Terms and Conditions
1 – GENERAL PROVISIONS
These general terms and conditions of sale (“T&C”) of Stilla Technologies, a French company with its registered office at 1 Mail du Professeur Georges Mathe 94800 Villejuif, France (« ST ), apply to all sales of ST equipment (“Equipment”), consumables (in particular chips) (“Consumables”) and supply of related services (in particular but without limitation for the installation, after-sale service, maintenance and technical support). Equipment and Consumables are to be used exclusively for research purposes only (and in no case for diagnostic purposes).
In accordance with Article L441-6 of the French Commercial Code, these T&C form the sole basis of the commercial relationship between the parties.
The Equipment uses software (the “Software”) which license is granted to the customer by ST under article 3 hereof.
ST reserves the right to modify these T&C without notice.
2 – PURCHASE ORDERS
2.1 Sale of ST Equipment and Consumables are governed by these T&C which are remitted to the customer with the ST commercial quotation. All orders placed by the customer, in particular on the basis of said ST commercial quotation, entails the unconditional acceptance of these T&C (subject however to specific conditions of sale derogating from these T&C that ST has agreed upon in writing).
2.2 These T&C shall prevail over all customer’s general purchase conditions or other documentation, unless otherwise expressly accepted in writing by ST.
2.3 Any order from the customer is then subject to ST’s acceptance which shall be made by a written confirmation of order. ST is only bound by this written confirmation of order. Orders confirmed in writing by ST may not be cancelled or modified by the customer, in whole or in part, without ST’s prior written consent.
3 – LICENCE
3.1 ST grants to the customer a personal, non-exclusive and non-transferable license to use the Software, but only to the extent the Software is embedded in the Equipment, and exclusively for Customer’s internal requirements and research purposes only (and in no case for diagnostic purposes).
3.2 Customer shall comply with all terms and conditions of use of the Software (and also of any third party software), which are set out in the licence included in the documentation remitted by ST. Customer’s use of the Software shall be strictly limited to research purposes only, and in no case for diagnostic purposes.
3.3 Subject to any applicable mandatory law provisions, the customer is not allowed to (i) modify, adapt or alter the Software; (ii) decompile, disassemble or reverse engineer in any manner the Software, in whole or in part, (iii) use the Software for any other purpose than that which the Equipment and the Software are intended for, (iv) sub-licence or grant access to the Software to any third parties; (v) copy the Software and its documentation.
4 – PRICES
4.1 Prices are in Euros, excluding any VAT, duties and taxes, packaging costs, shipping and delivery costs, on an Ex-works (EXW) basis, Incoterms 2010 (unless otherwise agreed upon in writing by ST).
4.2 Invoiced prices are those mentioned in the written confirmation of the order by ST.
4.3. ST reserves the right to revise its price lists at all times.
5 – DELIVERY TIMES
5.1 Our delivery times are minimum leads provided for information purposes only and shall not be of the essence.
5.2 In the event of non-compliance with planned delivery times, the customer shall not be authorised to refuse delivery, cancel the order or defer payment thereof in relation to the agreed conditions or retain any amount whatsoever by way of set-off or claim any indemnity whatsoever. No lateness penalty may be claimed if not contained in a special clause duly accepted by ST in writing in the order confirmation.
6 – DELIVERY AND TRANSFER OF RISKS
6.1 Unless otherwise agreed to in writing by ST, the Equipment and Consumables are sold EX WORKS (EXW), INCOTERMS 2010 of the International Chamber of Commerce, and travel at the customer’s risk, regardless of the means of shipment and even when shipped free of charge. The transfer of risks to the customer (in particular risks of loss or deterioration of the Equipment and Consumables) shall take place when the goods are made available to the customer or the customer’s carrier, and the customer therefore is responsible for all transportation and insurance costs together with any taxes and custom duties in connection with the delivery.
6.2 It is the responsibility of the customer to inspect the Equipment and Consumables upon delivery and to make any reservations on the carrier’s delivery slip in particular in case of loss or damage noted at the time of delivery and to bring any action against the carrier within the timeframe and in accordance with the formal requirements set by law.
6.3 The customer will be personally responsible for the disposal of packaging waste relating to the Equipment and Consumables.
7 – PAYMENT TERMS
7.1 Unless otherwise agreed to in writing by ST, any Equipment order is subject to a first payment of 50% of the total price of the order to be paid within 30 days from the date of confirmation of the order by ST, and the balance due (the remaining 50% of the total price) is to be paid within 30 days from the date of delivery of the Equipment, without discounting for early payment.
7.2 Unless otherwise agreed to in writing by ST, any Consumables order is payable within 30 days from the date of delivery of the Consumables, without discounting for early payment.
7.3 Payment shall be considered as effectively made when the amounts due by the customer are cashed or credited to ST’s bank account. The customer may not make payment by means of set-off without ST’s prior written authorisation.
7.4 In the event of failure to pay the price within the agreed time limits, ST may deem the sale rescinded ipso jure fifteen days following formal notice sent to the customer by registered letter with acknowledgement of receipt which expressly mentions its intention to implement this rescission clause and which remains unheeded.
7.5 In the event of non-payment of any invoice on its due date, all of our invoices payable at a later date shall become immediately due and owing. Moreover, we reserve the right to suspend shipment of the goods ordered by the customer, to terminate any agreement or take additional securities, all without prejudice to any damages and interests.
8 – LATE PAYMENT PENALTIES AND COLLECTION EXPENSES
8.1 In accordance with Article L441-6 of the Commercial Code, any payment made after the deadline for payment appearing on the invoice shall give rise to application of late payment interest until full payment of the price. The late payment penalties are due without any reminder being necessary. Penalty rate interest shall be equal to the interest rate applied by the European Central Bank to its most recent refinancing operation increased by ten (10) percent in effect at the due date.
8.2 Furthermore, in the event of late payment, a lump-sum indemnity for collection expenses of €40 shall also be automatically due by the customer, without prejudice to ST’s right to claim additional indemnification for this reason when the expenses incurred exceed the amount of the lump-sum indemnity (receivables collection company, attorney’s fees, etc.).
9 – RETENTION OF TITLE CLAUSE
Transfer of title to the Equipment and Consumables delivered to the customer shall take place following actual payment of the full price in principal, interest and incidental costs. Delivery of a draft or other bill creating an obligation to pay shall not constitute payment within the meaning of this clause. Throughout the duration of the retention of title, the customer shall insure the Equipment and Consumables against any and all risks and damages. If the customer fails to make any one payment when due, ST may make a claim for return of the Equipment and Consumables including in the event of judicial reorganisation or insolvency proceedings affecting the customer. The sale shall accordingly be rescinded ipso jure and the goods shall be returned to ST at the latest eight (8) days from the claim, at the customer’s exclusive expense. ST may keep that part of the price already paid by the customer by way of indemnity, without prejudice to its other rights.
10 – WARRANTY
10.1 ST will supply Equipment and Consumables which comply with specifications set out in the commercial quotation remitted to the customer and these T&C to the exclusion of any other specification or provision which has not been expressly accepted by ST.
10.2 Unless an extension of warranty has been granted in writing, ST warrants that the Equipment will be free from defects during the warranty period of one (1) year from the delivery date and will generally conform to the published specifications. Warranty includes spare parts, labour and travel. ST warrants Consumables until the expiration date indicated on the packaging. ST warrants Software in accordance with the provisions set out in the documentation remitted to the customer. The customer has exclusive responsibility to install an antivirus software and take any other appropriate protective measures.
10.3 Any warranty shall be excluded if the alleged default is the result of, including but without limitation, a fair wear and tear of the Equipment or the Consumables, a misuse of the Equipment, Consumables or Software, any utilisation non-compliant with their purpose or specifications, a repair or modifications made by the customer, a lack of supervision or maintenance, mishandling, breakages, shock, incompatible power supply, failure of the set-up of the Equipment and Consumables by the customer, unauthorized or incompatible network system, any environment incompatible with the technical requirements of the Equipment and/or Software, and generally of any event beyond the control of ST. It is the sole responsibility of the customer to take all necessary measures of safety and hygiene including decontamination of the laboratory where the Equipment will be installed.
10.4 To implement the warranty, the customer shall: (i) immediately notify ST – within one (1) week from the moment the customer is aware of the alleged default – by registered letter with acknowledgement of receipt of the defective Equipment or Consumables by providing a detailed report about the defect , (ii) obtain written approval from ST to return the Equipment or Consumables , and (iii) return the Equipment or Consumables at their own risk and expense and in an appropriate packaging.
10.5 If the Equipment or Consumables are found to be defective, ST shall at its sole discretion decide to repair or replace the defective Equipment or Consumables or credit customer’s account by an amount equal to the price paid for said Equipment or Consumables, and will refund the transportation charges incurred by the customer. The repair or replacement of parts during the warranty period shall in no case have the effect of extending the initial term of the warranty.
10.6 ST is subject only to an obligation of means for services provided to the customer.
10.7 These warranties for the Equipment, Consumables or services set forth in these T&C are exclusive of any other warranty. ST will not grant any other statutory, express or implied warranty for the Equipment, Consumables or services and in particular, no implied warranty of merchantability or fitness for a particular purpose or any implied warranty of non infringement, or any warranty against hidden defects or in relation to liability for defective products. ST does not warrant that the Equipment, Consumables and/or Software will meet customer’s requirements or will be fit for a particular purpose or that operation of the Software will be uninterrupted or error free.
11 – LIMITATION OF LIABILITY
IN NO EVENT SHALL STILLA TECHNOLOGIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INTANGIBLE DAMAGES, (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF DATA, LOSS OF BUSINESS), INCURRED BY THE CUSTOMER WHETHER BY VIRTUE OF AN AGREEMENT, ON TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL PRINCIPLE, AND IRRESPECTIVE OF WHETHER STILLA TECHNOLOGIES HAS HAD ADVANCED NOTICE OR AWARENESS OF THE POSSIBILITY OF SUCH DAMAGES OR NOT OR COULD REASONABLY FORESEE THE LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND REGARDLESS OF THE CAUSE OR NATURE OF THE ALLEGED LIABILITY.
STILLA TECHNOLOGIES’ TOTAL PROVEN LIABILITY IN ALL CIRCUMSTANCES OR EVENTS WHATSOEVER SHALL BE LIMITED CUMULATIVELY AS FOLLOWS : (i) ONLY TO DIRECT AND FORSEEABLE TANGIBLE DAMAGES SUFFERED BY THE CUSTOMER WHICH ARE EXCLUSIVELY ATTRIBUTABLE TO STILLA TECHNOLOGIES AND (ii) TO THE AMOUNT BEFORE TAX RECEIVED FROM THE CUSTOMER FOR THE EQUIPMENT AND/OR CONSUMABLES COVERED BY THE CLAIM, FOR ALL TYPE OF DAMAGES WHATSOEVER.
12 – INTELLECTUAL PROPERTY
ST holds and remains the owner of all intellectual property rights relating to the Equipment, Consumables and Software including without limitation, patents or patent applications, drawings and patterns rights, trademarks, concepts and know-how, copyrights, etc. Upon the sale of the Equipment and Consumables, no intellectual property right shall be transferred or assigned to the customer, it being further recalled that ownership on the Software is never transferred to the customer. Customer commits not to interfere with or prejudice the intellectual property rights of ST or of any third party software owner used in or embedded in the Equipment. Customer will indemnify and hold ST harmless against all liability, damages, losses and expenses, (including attorneys’ fees and other costs of legal defense), that ST may sustain or incur as a result of a breach by the customer of this clause.
13 – CONFIDENTIAL INFORMATION
All information, technical data, specifications… relating to the Equipment, Consumables and/or Software, whatever their nature and support, including but not limited to technical, economical, financial or commercial information, disclosed by ST to the customer or that customer may acquire from ST within their business relationship are confidential and subject to the strictest confidentiality obligation. Customer commits not to disclose any confidential information relating to the Equipment, Consumables and/or Software to third parties other than customer’s employees who need to know such information within the performance of their work. Customer guarantees ST that its employees will comply with this confidentiality agreement.
14 – FORCE MAJEURE
ST’s obligations will be immediately suspended without the need for any formalities, and ST will not be held liable, in case of occurrence of any circumstances or event beyond ST’s reasonable control, including but without limitation in the case of fires, floods, explosions, epidemics, war, sabotage, acts of terrorism, embargoes, public disorders, labour disputes including those affecting ST or ST’s suppliers, any incidents affecting manufacture or production, plant or machinery breakdown, shortage of supplies, interruption or delays in transportation, incidents affecting the activity of suppliers or subcontractors, etc.,
which happen after the contract is entered into and prevent ST from performing its obligations.
15 – APPLICABLE LAW AND JURISDICTION
15.1 THESES TERMS AND CONDITIONS OF SALE AND/OR ANY SALE MADE BETWEEN STILLA TECHNOLOGIES AND THE CUSTOMER SHALL BE GOVERNED BY THE LAWS OF FRANCE, EXCLUDING ITS CONFLICTS OF LAW PROVISIONS. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THESE TERMS AND CONDITIONS OF SALE AND/OR ANY SALE MADE BETWEEN STILLA TECHNOLOGIES AND THE CUSTOMER.
15.2 IN THE CASE OF A DISPUTE OR LITIGATION RELATING TO THESE TERMS AND CONDITIONS OF SALE AND/OR ANY SALE MADE BETWEEN STILLA TECHNOLOGIES AND THE CUSTOMER, THE COMMERCIAL COURT OF PARIS, FRANCE, SHALL HAVE EXCLUSIVE JURISDICTION. BOTH PARTIES FURTHER CONSENT TO THE JURISDICTION OF THE COMMERCIAL COURT OF PARIS, FRANCE, AND WAIVE ANY OBJECTION TO VENUE IN SUCH COURT AND ANY CLAIM THAT SUCH FORUM IS AN INCONVENIENT FORUM.