GENERAL CONDITIONS OF SALES

June 23, 2018

1 – GENERAL INFORMATION

The present general conditions codify the commercial uses of the French ocular optics industries. They comply with the rules of contract law and competition law and are inspired by those of the GIFO (Groupement des Industriels et Fabricants de l’Optique), of which the CGV syndicales n° 2009012465 are deposited with the Bureau des Expertises et des Usages of the Registry of the Commercial Court of Paris and to which the LEOO (Les Entreprises de l’Optique Ophtalmique) is a member.

In accordance with article L441-6 of the French Commercial Code, resulting from the „Dutreil“ law of August 2, 2005 and the law of modernisation of the economy n°2008-776 of August 4, 2008, the general conditions of AXELENS SARL, known as Le Fournisseur, constitute the basis of commercial negotiation. The present general conditions apply to all contractual relations between „the Supplier“ and the client company hereinafter referred to as „the Client“ and prevail over any document that has not been expressly accepted. Any derogation must be expressly and in writing accepted by the Supplier and may give rise to compensation.

The present general conditions are governed by the law of the contract of enterprise since they apply to the manufacture of a product on the basis of a specification or to the provision of a service.

For the purposes of these general terms and conditions, „written“ means any document drawn up on paper, electronically or by fax. Given the investments involved, the use of electronic EDI transactions is not part of the offer, unless otherwise indicated.

The Client’s request to use such means, not included in the offer, may give rise to negotiation and counterparties.

2 – FORMATION OF THE CONTRACT

2.1 Accepted quotation

The contract is formed as soon as the Customer accepts the estimate issued by the Supplier by any means.

The estimate must specify the designation of the product, the quantities, the rates without VAT and the rates including VAT, and the delays.

2.2 Modification or cancellation of the order

Any modification of the estimate accepted by the Customer is subject to the Supplier’s express acceptance. The accepted quotation expresses the Client’s irrevocable consent; it cannot therefore be cancelled, unless the Supplier has given its express prior consent. In this case, the Customer shall indemnify the Supplier for all costs incurred and for all direct or indirect consequences arising therefrom. In addition, the deposit already paid shall remain the property of the Supplier.

2.3 Opening and maintaining an account, financial situation

The Supplier reserves the right to make the opening and maintenance of accounts subject to the Client obtaining accounting, financial and legal documents and, where applicable, guarantees. The Supplier reserves the right to demand full or partial payment at the time of acceptance of the quotation, regardless of the Customer’s financial situation.

3 – PROFESSIONAL QUALITY OF THE SPEAKERS

The production and supply of products to retail opticians running a business in their own name or in a company, is subject to compliance by these opticians with the conditions for exercising the profession provided by law and in particular Articles L4362-1 to L4362-9 of the Public Health Code as well as any regulations issued by health authorities.

The Supplier reserves the right to cease all commercial relations if its products are not sold to the public by authorised persons and under the conditions provided for by the regulations.

4 – TRADE POLICY

When the Customer is a retailer, he undertakes to sell only in his point of sale, at retail and to direct consumers, and in compliance with the regulations applicable to products.

The customer agrees not to carry out promotional operations (sales, discounts, promotions, etc.) on products supplied under the Supplier’s brand without the Supplier’s express prior agreement.

The prices indicated on the estimates present separately the cost of the products and that of their sending in France, in the DOM-TOM or abroad. Quotations are valid for 2 weeks, unless otherwise agreed between the parties.

5 – SHIPPING – DELIVERY

5.1 Terms of delivery

Unless otherwise expressly notified or accepted by the Supplier, delivery shall be effected either by delivery to the Supplier’s factories or stores to a shipper or carrier designated by the Supplier or, secondarily, designated by the Customer, or by direct delivery to the Customer against signature of a certificate of good receipt.

The risks are transferred accordingly to the Customer upon delivery without prejudice to the Supplier’s right to invoke the benefit of the retention of title clause.

Whatever the conditions of transport, the products travel at the risk and peril of the consignees, carriage at the expense of the Customer. It is the Customer’s responsibility to make the necessary reservations with the carrier within the time required upon receipt, the control of the products remaining the responsibility of the customer.

5.2 Delivery time

However, if deadlines are stipulated, they are only indicative and may be called into question in the event of circumstances beyond the Supplier’s control or due to the Customer’s action or inaction. No delay may give rise to compensation or refusal of the products.

6 – TERMS OF PAYMENT

6.1 Billing

Orders placed for shipment shall be invoiced exclusively by the Supplier. Invoices and credit balances can be the subject of a monthly statement on which any rebates can be charged.

The Customer shall refrain from any unlawful debit or credit practice and, more generally, from any invoicing of amounts that have not been expressly recognised by the Supplier as being its responsibility.

Any unilateral deduction by the Customer on one of its payments (and in particular, by automatic debits, discounts, refunds, rebates or year-end bonuses not expressly granted by the Supplier), shall constitute an unpaid amount and may give rise to the application of penalties for late payment.

In order to be admissible, any request for correction of an invoice must be made within 10 working days following receipt of the said invoice, as the claims are portable and non-refundable.

6.2 Payment methods and terms

Unless expressly agreed otherwise, payments shall be made on the date of issue of the invoice, immediately by electronic means:

  • by direct debit;
  • or by bank transfer.

All payment vouchers must reach the Supplier at the latest within 5 days following the due date indicated on the invoice or statement.

Any clause or request tending to set or obtain a payment deadline longer than the possibly agreed deadline may be considered as abusive within the meaning of article L 442-6-1 JO of the Commercial Code as it results from the law of modernisation of the economy n’2008-776 of August 4, 2008 and is liable in particular to a civil fine of up to two million euros.

The payment dates agreed contractually cannot be called into question unilaterally by the Customer under any pretext whatsoever, including in the event of a dispute.

Advance payments are made without discount unless otherwise agreed.

6.3 Late payment

In accordance with article L441-6 al 12 of the Commercial Code as it results from the law of modernisation of the economy n°2008-776 of August 4, 2008, any delay in payment may give rise to the application of default interest equal to the most recent refinancing rate of the European Central Bank increased by ten points.

In the event of delay in payment, the Supplier reserves the right to exercise its right of retention and to suspend deliveries immediately, after unsuccessful formal notice within 8 days of receipt. The fact that the Supplier avails itself of one and/or the other of these provisions does not deprive it of the right to implement the retention of title clause stipulated in article 7 of these general conditions. Pursuant to Article L 441-6 paragraph 12 of the Commercial Code, as it results from the law n°2012-387 of March 22, 2012, applicable as from January 1, 2013, any late payment makes due, as of right, from the first day following the date of payment appearing on the invoice, a fixed compensation for recovery costs, in the amount of 40 euros excluding VAT (Article D 441-5 of the Commercial Code).

6.4 Purchasing groups

Unless otherwise agreed, the groups, which act as agents for their members, are responsible in that capacity for paying invoices in the name and on behalf of those same members and guaranteeing payment on the agreed dates.

In the event of delay or default by a group in the payment of invoices for which it is responsible, the Supplier reserves the right to demand payment directly from the members.

6.5 Debit Notes

According to article L442-6 l, 8 of the Commercial Code, it is illegal „to automatically deduct from the amount of the invoice drawn up by the Supplier penalties or rebates corresponding to the non respect of a delivery date or to the non-compliance of the goods, when the debt is not certain, liquid and payable, even before the Supplier has been able to check the reality of the corresponding grievance“.

The Customer shall not invoice or deduct any amount not accepted by the Supplier. Any automatic debit will be treated as unpaid and will give rise to the application of the provisions of these conditions governing late payments.

7 – RESERVATION OF PROPERTY CLAUSE

The Supplier shall retain ownership of the products delivered until actual payment in full of the principal and accessory price. Failure to pay any of the due dates may result in the claim of these products. These provisions do not prevent, as from the delivery, the transfer to the Customer of risks of loss or deterioration of the products as well as the damage they could cause. The mere delivery of a security creating an obligation to pay (bill of exchange, promissory note, cheque) does not constitute payment within the meaning of this clause, the Supplier’s original claim on the Customer remaining with all the guarantees attached to it, including the retention of title until the said obligation to pay has been fulfilled.

The Customer is prohibited from removing packaging or labels appearing on products in stock and not yet paid.

In the event of seizure or attempted seizure by a third party, the Customer undertakes to mention the right of ownership and to notify the Supplier without delay.

8 – PRODUCT RETURNS AND RETURNS

8.1 Terms and conditions for returns and returns

Products may only be returned or taken back with the express prior written agreement of the Supplier. The fact for the Supplier to have agreed to a return for such product, does not confer to the customer the right to obtain a return for other products. To be admissible, the request for return must be made within a period of less than 14 days, from the date appearing on the delivery note for the products subject to return.

The return of product causing control and reconditioning costs, the credit note may therefore be reduced by 30%.

Products must be returned postage paid, at its expense and risk in their original packaging and condition, accompanied by the original delivery note. Any request to have a product returned incomplete or damaged, even slightly, will be refused (glass, packaging…)

8.2 Special cases

Breakage on delivery – to be admissible, any request for supply of identical products at any point under breakage on delivery must be made within a period not exceeding 2 days after the delivery date appearing on the delivery note of the broken products. Beyond this period, or in case of a request for different products, the replacement products will be fully due.

Discount for breakage during assembly – breakage during assembly includes any action by the CLIENT on the glass as soon as the package is opened. The new identical order allows a 10% discount on the price.

9 – GUARANTEES AND LIABILITY

9.1 Compliance with health regulations for medical devices

The products covered by these general conditions meet the requirements applicable to them at the stage of the Supplier’s first placing on the market. They meet the requirements of European Directive 93/42/EC of June 14, 1993 on safety and health and Articles R665-1 et seq. of the Public Health Code insofar as these provisions apply to them.

In the event that the Customer intends to resell the products outside the European Economic Area, Switzerland and any other country having concluded a free trade agreement with the European Union, the Customer must consult the manufacturer beforehand, so that the question of the conformity of the product with local regulations can be examined.

The Supplier guarantees the Customer that its products comply with the technical standards for which it has explicitly declared conformity.

The conformity of the product to a prescription as to an erroneous order cannot constitute a defect of conformity, a hidden defect or a defect of safety of the product attributable to the Supplier. The Supplier shall not be liable for errors in prescription, measurement or ordering, assembly errors or use of the products not in accordance with their intended purpose.

9.2 Warranty

The Supplier warrants the product 2 years from the date of invoice issued by it against any defect in material, or manufacturing, under the conditions below :

The product must be used in accordance with its common purpose;

The Customer must ensure that the Supplier is informed immediately and in writing of the defects attributed to the product and provide all justifications as to their reality. He must also refrain, without the express agreement of the Supplier, from repairing the defective products himself or having them repaired or replaced by a third party.

If these conditions are not respected, the Supplier’s warranty will be excluded. These conditions do not prevent the application, where applicable, of the legal guarantee.

Repairs and replacements made under the warranty do not incur a new warranty period and do not extend the original warranty.

The warranty is excluded in cases of exclusion of liability listed in Article 9.3.

Experience shows that rare material and manufacturing defects appear on delivery or, at the latest, within one month of delivery.

9.3 Limitation of liability

The Supplier’s liability shall be limited to direct material damage caused to the Customer resulting from faults attributable to the Supplier in the performance of the contract.

The Supplier shall not be obliged to compensate the Client or third parties for any detrimental consequences of their negligence in connection with the performance of the contract.

Under no circumstances shall the Supplier be obliged to compensate for immaterial or indirect damages such as: operating losses, profit, commercial prejudice, loss of profit, etc.

The Customer guarantees the waiver of recourse by its insurers or third parties in contractual relationship with it, against the Supplier or its insurers beyond the limits and exclusions set above.

Liability is excluded:

  • For the consequences of using a product with an apparent defect;
  • If the malfunction is due to normal wear and tear;
  • If the defect results from force majeure as defined in Article 11, negligence, improper use or lack of maintenance on the part of the Customer, an intervention on the goods which the Supplier would not have authorised;
  • In case of error or bad recommendation in the choice of products by the Customer or any other third party intervening;
  • In case of non-compliance by the Customer with the rules and standards applicable to him under Directive 93/42 of June 14, 1993 ;
  • In case of assembly errors, handling errors, glass inversions, refractive errors etc…;
  • In case of non respect of the indications and possible recommendations of the Supplier.
  • In case of breakage during assembly by the Customer, the latter may request the renewal of the product at the same price, with a 15% discount on the price of said product.

9.4 Penalties

In the case where penalties and indemnities have been agreed upon by mutual agreement, they shall have the value of lump-sum compensation, in full discharge and shall be exclusive of any other sanction or compensation.

9.5 Obligation to inform the Client

The Customer must inform his own customers about the characteristics of the product, the conditions of correct use of the product and the need for a medical examination if necessary. The delivery of this information is the sole responsibility of the Customer.

The Customer will communicate to his customers the conditions of the guarantee.

10 – FORCE MAJEURE

Neither party to the contract may be held liable for its delay or failure to perform any of its obligations under the contract if such delay or failure is the direct or indirect effect of a case of force majeure understood in a broader sense than French case law such as :

  • Occurrence of a natural cataclysm ;
  • Earthquake, storm, fire, flood, epidemic etc…;
  • Armed conflict, war, civil conflict, attacks; labour conflict, total or partial strike at the Supplier or the Customer or in transport;
  • Labour disputes, total or partial strikes among Suppliers, subcontractors, service providers, carriers, post offices, public services, etc…;
  • Mandatory injunction by the public authorities (ban on imports, embargo);
  • Operating accidents, machinery breakdown, explosion.

Each party will inform the other party, without delay, of the occurrence of a case of force majeure of which it will be aware and which, in its opinion, is likely to affect the performance of the contract.

If the duration of the impediment exceeds 21 working days, the parties shall consult within 5 working days following the expiry of the 21 working days period to examine in good faith whether the contract should continue or terminate.

11 – GENERAL CONDITIONS OF USE OF TRADEMARKS AND ADVERTISING PRODUCTS

The commercial relations established between the Supplier and the Customer do not give any right to the Customer on the marks and any other distinctive sign of the Supplier. Any use by the Customer of these trademarks and other distinctive signs must obtain prior written approval from the Supplier. The use by the Customer of these trademarks and distinctive signs on commercial documents, such as letterheads and business cards, as well as telephone directories, advertising materials, website, and professional directories, is subject to the prior and express agreement of the Supplier.

Any sale of counterfeit goods and/or goods whose resemblance with those of the Supplier (product itself, packaging, brand, logos…) would be likely to cause confusion in the mind of the public is prohibited.

Failure to comply with the above provisions may result in suspension of deliveries and/or legal proceedings.

12 – CONFIDENTIALITY AND RESPECT OF INTELLECTUAL PROPERTY RIGHTS

The Customer undertakes to respect all the Supplier’s intellectual property rights on its products.

Generally speaking, all intellectual property rights, as well as the know-how incorporated in the delivered products and the documents transmitted (notably studies, projects, prototypes) remain the exclusive property of the Supplier. Any transfer of intellectual property rights or know-how must be the subject of a contract with the Supplier.

The parties mutually undertake a general obligation of confidentiality relating to any confidential oral or written information, whatever it may be and whatever the medium (discussion reports, plans, exchanges of computerised data, activities, projects, know-how, products, etc.) exchanged in the context of the preparation and execution of the contract, except for information which is generally known to the public or which will become known to the public otherwise than through the Client’s fault or act.

Accordingly, the parties undertake to:

  • Keep strictly secret all confidential information, including never disclose or communicate, in any manner whatsoever, directly or indirectly, all or part of the confidential information to anyone without the prior written permission of the other party;
  • Not to use all or part of the confidential information for purposes or for an activity other than the performance of a contract;
  • Do not copy or imitate all or part of the confidential information.

The Client undertakes to take all necessary measures to ensure compliance with this obligation of confidentiality, throughout the duration of the contract and even after its expiry, and undertakes to ensure compliance with this obligation by all its employees. This obligation is an obligation of result.

13 – SETTLEMENT OF DISPUTES AND APPLICABLE LAW

For all disputes to which the contract could give rise, in particular as regards its validity, its interpretation, or its execution, the parties undertake to try to settle their disputes amicably before seizing the Court of Créteil, France, the only competent court.

If no amicable agreement is reached, it is expressly agreed that any dispute relating to the contract shall be under the exclusive jurisdiction of the Créteil court within whose jurisdiction the Supplier’s domicile is located, even in the event of an appeal and multiple defendants.

French law is the only one to be applicable.

AXELENS SARL

11 Villa du Châtelet 94120 FONTENAY-SOUS-BOIS

RCS Créteil : 839 042 140 00013

VAT EN 03 839042140

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