OWANDY RADIOLOGY GENERAL CONDITIONS OF SALE

 

 

A – General provisions

 

  1. We only make deliveries under the following General Conditions for Sale even if, in continuing business relations, repeated express reference is not made. Conflicting conditions of the customer are not valid for us. If we do not reply to order confirmations which refer to diverging general terms and conditions of the customer, such silence shall not be deemed to be our consent to such general terms and conditions. In accepting our delivery, the customer declares its consent to the exclusive application of our General Conditions for Sale.
  2. All offers made by us are subject to confirmation. Orders shall only deemed to be accepted upon our written confirmation. Our order confirmation is controlling for the terms of the contract if we do not receive a written objection within 14 days following the date of our confirmation; this does not apply if our order confirmation differs substantially from the order so we cannot expect the customer’s consent.
  3. All agreements entered into for the execution of this contract shall be set down in writing.
  4. If INCOTERMS are agreed for export business, the definitions apply which are determined and published from time to time by the International Chamber of Commerce in Paris and which are in force when the contract is concluded.

 

B – Price and payments

 

  1. Our prices are ex works Croissy-Beaubourg France or Buccinasco Italy excluding freight and insurance. Sales tax will be added to the agreed prices for domestic use by the respective statutory amount.
  2. Our invoices shall be paid net cash within 30 days after date of invoice unless otherwise stated in our order confirmation. In every case repairs and labour services shall be paid net cash immediately.
  3. We take bills of exchange or checks only on account of payment. All expenses and charges for discounting or cashing the bills of exchange shall be borne by the customer.
  4. If we become aware of circumstances which question the credit standing of the customer, all and any of our outstanding debts become immediately due for payment.
  5. The customer is not entitled to a right of retention or offset against our claims unless the counterclaims are expressly admitted by us or finally recognised by judgement

 

C – Delivery, passing of risk and taking delivery

 

  1. Shipping is made at the customer‘s cost and risk in every case. Deliveries will only be insured against transport damage upon explicit request of the customer and at its cost.
  2. The risk passes to the customer as soon as the item to be delivered leaves our factory, even if partial deliveries are made. In the event that the customer collects the item, the risk passes to him by the time of notice of readiness for shipment.
  3. Notwithstanding the customer‘s rights under section F of these General Conditions for Sale shall be taken by the customer, even if the items show minor defects.

 

D – Delevery time

 

  1. Adherence to the times for deliveries or performance (delivery times, i.e. delivery dates and delivery periods) requires fulfilment of the contractual duties and obligations of the customer. Thus, delivery periods first commence upon the customer‘s receipt of our order confirmation, but not prior to the submission of documents, specifications, etc. to be procured by the customer, however, and likewise not prior to receipt of an agreed collateral security; delivery dates will be deferred accordingly in these cases. Alterations or additions to the original scope of delivery or performance agreed upon after conclusion of the contract extend or postpone the original delivery periods or delivery dates appropriately.
  2. The delivery time has been observed if the item to be delivered has left the factory, or the readiness for shipment has been notified, before expiration of the delivery time. Partial deliveries are permitted.
  3. Failure in deliveries or services due to acts of God or occasioned by strikes, interventions of governmental authorities, interruption of operations, difficulties in procuring material or energy, or other unforeseeable or exceptional circumstances which are not our fault, each regardless of whether such circumstances occur in our or our sub-contractors’ firm, extend the delivery time by the continuance of the impediment. This provision does not apply to cases where we have committed ourselves to delivery schedules despite the fact that such circumstances could have been foreseen or we did not take possible and reasonable steps to prevent or overcome such failure or we are responsible for such impediment. According to the foregoing provisions, we are not liable for the named circumstances even if they occur during a then present default. We can invoke these provisions only if we notify the customer of the occurrence and prospective continuance of such failure without undue delay.
  4. If the customer incurs damages due to a delay for which we are liable, then the customer is entitled to compensation for such damages. The amount of such compensation is limited to 1 per cent for each full week of the default – single days proportionally, but not more than 10 percent, of the contract value. This provision does not affect our liability according to section G. No. 2 and 3 of these General Terms and Conditions for Sale, Delivery and Payment.

 

E – Retention of title

 

  1. Until payment of all claims arising from the business relation with the customer is made in full, we retain title to the delivery item (reserved item).
  2. Until the transfer of title, the customer shall insure the reserved item against loss, breakage, fire, water or other damage. The customer already assigns all rights ensuing from the relevant insurance contracts and his claims against the insurer to us. We accept such assignment.
  3. The customer is neither permitted to pledge nor assign the reserved item as security. In the case of any attachment as well as seizure or other dispositions, the customer shall inform us without undue delay. In the case of breach of contract on the part of the customer, particularly default of payment, we are entitled to take back the reserved item after a reminder. This also applies if the customer is over indebted or suspends payments, or an application is filed to commence insolvency proceedings against his assets, or other substantial deterioration of his economical circumstances occurs. Assertion of retention of title as well as an attachment of the reserved item by us are not deemed as withdrawal from the contract.
  4. The customer is entitled to resell the reserved item in the ordinary course of business on his normal terms. In the event of resale, the claims of the customer ensuing from resale are already assigned to us up to the amount of our invoice value (including sales tax). We herewith accept the assignment. Even after the assignment, the customer is authorized to collect these claims. If the customer defaults, if an application economic circumstances occurs, then the right to resell and the authorization to collect claims expires. In this case, we can furthermore make use of our power which remains unaffected to collect the assigned claims ourselves and to demand that the customer notifies his debtors of the assignment. Irrespective of this, we can demand at any time that the customer discloses the assigned claims and the debtors thereof to us, provides all the necessary details for collection and surrenders the appropriate documents.
  5. Processing or reconstruction of the reserved item by the customer is always carried out on our behalf. If the reserved item is worked in with other items not belonging to us, then we acquire co-ownership of the new item in proportion to the value of the reserved item to the other worked-in items at the time of the work process. Otherwise the same applies to the item created by processing/working as for other reserved items (see above).
  6. If the reserved item is combined with other items not belonging to us so that it becomes an integral part of a single item, then we acquire co-ownership of the new item in proportion to the value of the reserved item to the other combined items at the time of combination. If combination is such that the item of the customer is regarded as the main item, then it is deemed as agreed that the customer assigns us pro rata co-ownership. The customer retains the co-owned item thus created in safekeeping for us. The provisions regarding combination correspondingly apply in the event of combining or mixing. Otherwise the same applies to new items created by combining or mixing or combining as for other reserved items (see above).
  7. We undertake to release securities due to us insofar as their value exceeds the claims to be secured by more than 20 %.

 

F – Defects

 

  1. The customer must inspect the delivered item carefully without undue delay after receipt and to give notice to us in writing of any defects without undue delay after such defects have been detected.
  2. In the case of faulty delivery or performance, the customer is entitled to elimination of the defect or delivery of a faultless item/production of new work (subsequent fulfilment) at our discretion. If we refuse to carry out subsequent fulfilment, the item proves to be a failure, is unacceptable to the customer, or does not take place within a reasonable deadline set by him, then the customer has the choice of demanding a reduction, or withdrawing from the contract, or – in the case of a contract for work and services – remedy the defects himself. Withdrawal is ruled out if the defect is minor. In other respects we are only liable in accordance with Paragraph G of these General Conditions for Sale.
  3. Claims based on defects are subject to a limitation period of 24 months.
  4. We can refuse subsequent fulfilment as long as the customer is in default with his obligations. A right of retention on account of any delivery defects amounting to up to twice the value of the costs to eliminate these defects remains unaffected hereby.

 

G – Liability

 

  1. Claims of the customer for damages because of neglect of any contractual or quasi contractual obligations and claims of the customer for damages based on tort are excluded – in particular for consequential damages (including lost profit).
  2. Our liability for damages arising from injury to life, body or health, for claims under the Product Liability Act, for guarantees (excluding consequential damages beyond the guarantee) as well as all foreseeable damages for which we can be charged with intent or gross negligence, remains unaffected. We are liable for damage to property as a result of simple negligence insofar as we are able to obtain cover in the context of our existing third party liability insurance.

 

H – Place of performance, Forum and Applicable law

In the event of a dispute in the interpretation and/or the execution of the present, it is fact attribution of jurisdiction to the Tribunal of Commerce in Paris (France), the applicable law being the French law.