General terms and conditions of sale applicable to the supply of equipment and related services
1. General Information
1.1. Any order for products or services (hereinafter “Products” and “Services”) implies the Buyer’s unreserved acceptance of and full adherence to these general terms and conditions of sale, which prevail over any other document from the Buyer, and in particular over any general terms and conditions of purchase, unless otherwise expressly agreed in advance by Cryo Bio System (“CBS”). The Buyer is deemed to be a professional who acquires the Products and Services for use, in accordance with their intended purpose, within the scope of their professional activity.
1.2. These general terms and conditions of sale constitute, in accordance with Article L.441-1 of the French Commercial Code, the sole basis of the commercial relationship between the parties. These general terms and conditions of sale apply to all sales of Products or Services by CBS, unless otherwise specifically agreed in writing by both parties prior to the order. Consequently, placing an order by the Buyer implies their unreserved acceptance of these general terms and conditions of sale, unless specific conditions are agreed to in writing by CBS with the Buyer.
1.3. Any document other than these general terms and conditions of sale, and in particular catalogues, prospectuses, advertisements, has only an informative and indicative value, not a contractual one.
1.4. CBS’s failure to enforce any of these terms and conditions at any given time shall not be construed as a waiver of its right to enforce any of their provisions at a later date.
1.5. CBS reserves the right to modify these terms and conditions of sale at any time without prior notice. These terms and conditions are also available on our website https://www.cryobiosystem.com
2. Orders
2.1. Definition
Orders are defined as any request for our Products or Services, accepted by CBS, and accompanied by payment of any deposit stipulated on the order form or other document.
Once received, the order becomes irrevocable.
2.1.1. Any order with an amount less than €500 excluding VAT will be subject to a flat administrative fee of €150 excluding VAT per order.
2.2. Modification
2.2.1. Orders submitted to CBS are irrevocable for the Buyer, unless CBS has given prior written acceptance.
2.2.2. Any request to modify the composition or volume of an order placed by a Buyer will only be considered by CBS if the request is made within 48 hours of CBS sending the order acknowledgment (“ARC”) to the Buyer. A flat-rate processing fee of €500 (excluding VAT) will be charged if the modification or cancellation is made after this deadline.
In the event of a modification to the order by the Buyer, CBS will be released from the initially agreed deadlines for its execution.
3. Deliveries
3.1. Delivery
Unless otherwise expressly stipulated, delivery will be made by making the purchased Products available at the CBS factory (Industrial Zone – No. 1 East – 61300 SAINT OUEN SUR ITON). CBS’s sole obligation will be to make the packaged Products available at its premises in SAINT-OUEN SUR ITON and to provide a commercial invoice.
The risks associated with the Products are transferred to the Buyer upon delivery of the Products, without prejudice to the Buyer’s right to refuse all or part of the Products.
If the Buyer fails to take delivery of the Products on their scheduled availability date, the Products will be stored at the Buyer’s expense, risk, and peril, without CBS being liable for any reason whatsoever. These provisions do not alter the payment obligations stipulated.
Shipping and customs charges will be borne by the Buyer. By express exception, CBS may arrange transport to a location agreed upon with the Buyer, in which case the Incoterms used will refer to the ICC 2020 version. The agreed Incoterm and delivery location will be systematically included on the Buyer’s order and confirmed in CBS’s Order Confirmation.
The Buyer will then provide CBS with the necessary information to ensure the security of the supply chain.
Unless otherwise expressly stipulated, the Buyer will provide and maintain an insurance policy covering transport risks for an amount at least equal to the value of the Products; any deductibles will be borne by the Buyer.
3.2. Deadline
3.2.1. Delivery times are given for information purposes only and are indicative, as they depend in particular on the availability of carriers and the order in which orders arrive.
CBS strives to meet the delivery times it indicates upon acceptance of the order, based on the reference logistics time in the profession, and to execute orders except in cases of force majeure, or in the event of circumstances beyond its control, such as strikes, frost, fire, storm, flood, epidemic, including that of Covid and all the resulting government measures, supply difficulties, without this list being exhaustive.
Delivery delays cannot give rise to any penalty or compensation, nor justify cancellation of the order.
In the event of a delivery delay attributable to the Buyer, CBS will collect the payment due upon delivery. The warranty period will begin from the date on which delivery should have taken place. Storage costs related to the delay will be reimbursed to CBS.
3.2.2. Any delay compared to the initially estimated delivery dates shall not justify cancellation of the order placed by the Buyer and registered by CBS.
The additional costs associated with any potential customs storage will remain the responsibility of the Buyer.
3.3. Transport
In all cases, the Products travel at the risk and peril of the Buyer to whom they belong.
Upon receipt of the Products, in the event of damage or missing packages, the Buyer must make all necessary claims and reservations with the carrier:
• In the case of domestic transport, in accordance with the provisions of Articles L.133-3 et seq. of the French Commercial Code: the Buyer and the carrier must immediately issue reservations countersigned on the transport document and confirm these reservations by registered letter (within three days, excluding public holidays, to the carrier).
• In the case of international road transport, at the time of delivery on the transport document in accordance with the provisions of Chapter V, Article 30 of the CMR Convention.
• In the case of sea or air transport, at the time of delivery on the transport document in accordance with the provisions of the convention governing the transport.
• In the case of hidden damage, the Buyer shall comply with the time limits defined in the international transport conventions, notifying the carrier after the date of receipt:
-> within 3 days, excluding Sundays and public holidays, for maritime transport
-> within 7 days excluding Sundays and public holidays for international air and road transport.
3.4. Reception
3.4.1. Without prejudice to the measures to be taken by the Buyer with regard to the carrier as described in article 3.3, in the event of apparent defects or missing items, any claim, whatever its nature, relating to the Products delivered, will only be accepted by CBS if it is made in writing, and if the Buyer has sent copies of the reservations and letters to CBS.
3.4.2. It is the Buyer’s responsibility to provide all justifications regarding the existence of the defects or missing items found.
3.4.3. No Product returns may be made by the Buyer without the express prior written consent of CBS, obtained in particular by fax or email.
Return shipping costs will only be borne by CBS if an apparent defect or missing items are actually verified by CBS or its representative.
If a return is accepted by CBS, a return authorization and instructions outlining the return conditions will be provided to the Buyer by CBS (carrier, customs procedures, etc.). Only Products returned in accordance with this procedure will be accepted.
3.4.4. When, after inspection, an apparent defect or shortage is indeed found by CBS or its agent, the Buyer may only request CBS to replace the non-conforming items and/or provide the missing items at CBS’s expense, without CBS being able to claim any compensation or to cancel the order.
3.4.5. The Buyer’s unconditional acceptance of the Products ordered covers any apparent defects and/or missing items. Any reservations must be confirmed under the conditions set out in Article 3.3.
3.4.6. The claim made by the Buyer under the conditions and in accordance with the procedures described in this article does not suspend payment by the Buyer for the Products concerned.
3.5. Suspension of deliveries
In the event of non-payment in full of an invoice by its due date, after a formal notice has remained unheeded for 48 hours, CBS reserves the right to suspend all current and/or future deliveries.
3.6. Order refused
If a Buyer places an order with CBS without having paid for previous order(s), CBS may refuse to fulfill the order and deliver the goods in question, without the Buyer being entitled to any compensation whatsoever. These provisions shall also apply to the Services.
3.7. Confidentiality
The Buyer acknowledges that all technical, commercial and financial data communicated by CBS is confidential and must not be disclosed to third parties and/or used for purposes other than those of the order.
4. Price
4.1. Offers are valid as of the date indicated and may be modified before acceptance by the Buyer.
Prices are net, excluding packaging, ex-works (EXW SAINT OUEN, Incoterms® ICC 2020) and are subject to change without notice. For DDP sales, which will be invoiced, the quoted prices are subject to change based on variations in taxes and customs duties.
4.2. Products and/or Services are payable in the currency of the invoice.
4.3. Unless otherwise stipulated, our prices are net and exclusive of VAT, ex-works, and packaging is extra. They do not include transport, any customs duties, or insurance, which remain the responsibility of the Buyer.
4.4. The Products and/or Services are provided at the prices communicated, and where applicable, in the commercial proposal sent to the Buyer. The prices of the Products and Services are fixed and non-revisable during their period of validity.
4.5. Unless expressly stated otherwise, prices are established for net payment, without discount, 45 days end of month, both in France and abroad.
4.6. No discount will be given by CBS for cash payment, or payment within a period shorter than that stated in these General Terms and Conditions of Sale, or on the invoice issued by CBS.
4.7. If a deposit is paid upon ordering, as stipulated in the commercial proposal, the balance is payable in full upon delivery. CBS will not be obligated to deliver the Products ordered by the Buyer if the Buyer fails to pay the price under the terms and conditions specified above.
If the price is payable according to a schedule agreed upon in writing between the Buyer and CBS in the commercial proposal, failure to pay any installment will render all remaining installments immediately due and payable.
5. Payment terms
5.1. Payment
Our invoices are payable on the due date indicated on them. Only the actual receipt of payment of drafts or promissory notes will be considered as constituting full payment within the meaning of these general terms and conditions of sale.
Even partial delivery constitutes the event giving rise to invoicing, the payment of which is made according to the payment terms indicated above.
The Buyer is released from their payment obligation once the amount due has been effectively received by CBS; the mere delivery of the payment instrument is insufficient. Credits can only be offset against each other upon reciprocal due dates. Payment by check is not accepted.
5.2. Non-payment – late payment
5.2.1. Any amount including VAT not paid by the due date will incur penalties payable by the Buyer, calculated at three times the legal interest rate applicable on the due date, plus 10 percentage points. These penalties are automatically due and will be debited from the Buyer’s account. In addition to the late payment penalties, a fixed compensation of €40 for recovery costs, excluding VAT, as provided for in Article D 441-5 of the French Commercial Code, will also be charged.
5.2.2. In the event of a dispute or partial performance of the contract, payment remains due for the undisputed or partially performed portion of the contract. CBS also reserves the right to automatically terminate the sale of all or part of the Products and Services for which the price has not been fully paid and to refuse any further deliveries or services. In the event of the Buyer’s insolvency, CBS reserves the right to demand advance payment.
6. Retention of Title Clause
6.1. Ownership of the Products remains with the Buyer until full payment of the price, including principal and any additional charges, even if a payment extension is granted.
Any clause to the contrary, particularly one included in the general terms and conditions of purchase, shall be deemed null and void, in accordance with Article L.624-16 of the French Commercial Code. CBS retains ownership of the Products sold until full payment of the principal and any associated charges has been received. Failure to pay any installment may result in the repossession of the Products. The Buyer shall not alter or remove any identifying marks on the Products and their packaging, which the Buyer authorizes to be verified at any time in its warehouses.
The Buyer undertakes to keep the Product in its original condition until the date of transfer of ownership. Consequently, until the transfer of ownership has taken place, the Buyer is prohibited from reselling it, granting rights to it to a third party, or altering it in any way whatsoever.
If the legislation of the Buyer’s country does not recognize the validity of retention of title clauses, particularly in the event of receivership or liquidation proceedings, or if the Buyer wishes to resell the Products before payment, it will be required to provide CBS with serious payment guarantees.
6.2. Any deposit paid by the Buyer shall remain the property of CBS as liquidated damages, without prejudice to its right to terminate current sales or any other actions that CBS may be entitled to take against the Buyer.
7. Warranty against apparent and hidden defects
7.1. The Products must be inspected by the Buyer upon delivery, and any claim, reservation, or dispute concerning missing items or apparent defects must be made in accordance with the conditions set forth in Article 3. In the event of apparent defects, the defective parts will be replaced by CBS, subject to verification of the alleged defects. The Buyer must provide all necessary evidence to substantiate the defects observed, and CBS reserves the right to conduct, directly or indirectly, any on-site inspection and verification.
7.2. Any claim for defects existing at the time of delivery and discovered after receipt of the Products must be made by the Buyer in writing within 3 days of discovering the non-conformity. No claim will be considered if it is made more than 3 days after the international transport convention governing the shipment, starting from the date of delivery.
7.3. No action for non-conformity may be brought by the Buyer after delivery of the Products. It is expressly agreed by the Buyer’s acceptance of these general terms and conditions of sale that after the expiry of this period, the Buyer may not invoke the non-conformity of the Products, nor raise it as a counterclaim in defense against any debt recovery action brought by CBS. Failure to comply with these conditions will preclude CBS from being held liable to the Buyer for any apparent defect.
7.4. Under the warranty against hidden defects, CBS will only be required to replace defective Products free of charge, without the Buyer being able to claim damages for any reason whatsoever.
7.5. CBS warrants its Products against hidden defects, in accordance with the law, custom, case law, and under the following conditions. CBS’s warranty applies only to Products that have become the legal property of the Buyer. It applies only to Products entirely manufactured by CBS.
The warranty does not apply:
– to components that, by their nature of materials or function, are subject to wear and tear;
– in the event of damage or accident resulting from installation or use not in accordance with best practices, by the Buyer or a third party;
– in the event of failure to comply with the operating and maintenance instructions;
– in the event of inadequate monitoring, storage, or maintenance of the Products;
– when there is any modification or intervention by the Buyer on original Products.
Furthermore, it does not apply in the event of non-payment by the Buyer, who cannot invoke a default to suspend or defer payment.
8. Force majeure
8.1. The occurrence of a force majeure event, as defined by positive law, suspends the performance of CBS’s obligations. Events beyond the control of the parties, which they could not reasonably have been expected to foresee, and which they could not reasonably avoid or overcome, are considered force majeure or fortuitous events if they render the performance of the obligations totally impossible.
8.2. The following are considered to be cases of force majeure or fortuitous events that release CBS from its obligations: strikes by all or part of CBS staff or its usual carriers, unforeseen breakdowns, the impossibility of obtaining raw materials, epidemics including Covid and the resulting government measures, thawing barriers, road blockades, strikes or disruptions in EDF-GDF supply, or strikes in postal services, or restrictions imposed by public authorities, or disruptions in supply for a cause not attributable to CBS, as well as any other cause of disruption in supply attributable to its suppliers.
8.3. In such circumstances, CBS will notify the Buyer in writing, including by fax or email, within 48 hours of the occurrence of the event. The contract between the Buyer and CBS will then be automatically suspended without compensation, effective from the date of the event. If the force majeure event continues for thirty (30) consecutive days, CBS will be entitled to cancel all or part of the order without any obligation to the Buyer, who will not be entitled to any damages. This cancellation will take effect on the date of first presentation of the registered letter with acknowledgment of receipt terminating the sales contract.
9. Intellectual Property
9.1. CBS retains full ownership of all intellectual property rights to its projects, studies, and documents of any kind. In the event of disclosure, regardless of the medium, these elements must be returned to CBS upon first request. Technology and know-how, whether patented or not, as well as all intellectual property rights relating to the Products and Services—including their forms and images—and/or systems—including software—remain the sole and exclusive property of CBS or the rights holders. Only a non-exclusive right of use is granted to the Buyer and its own customers.
9.2. CBS guarantees (i) the Buyer against any legal action brought against it by a third party to the extent that said legal action relates to the direct infringement of intellectual property rights held by a third party and relates to the Product and/or Service provided by CBS under the order and (ii) bears all damages – excluding attorneys’ fees – that the Buyer may be ordered to pay by a court whose decision is final.
9.3. CBS’s warranty obligation under this Agreement shall only apply if:
(1) CBS (i) is promptly notified in writing of the said action, (ii) has full, direct, and exclusive control of the matter, and (iii) receives reasonable assistance and cooperation from the Buyer to ensure its defense and to resolve the dispute to the best of their mutual interest;
(2) the action is commenced within three (3) years of the date of delivery of the Products or Services;
(3) the infringement alleged to be the subject of the action does not result from any modification to the Product or from instructions, concepts, or specifications provided by the Buyer;
(4) the Products or Services are used unlawfully or in a manner inconsistent with their specifications;
(5) because the Buyer would continue to sell, offer for sale, import, use, promote or otherwise dispose of the Products after CBS has warned it that it should cease at least one of these activities because of such infringement or risk of infringement.
10. Obligations applicable to medical devices
Some Products sold by CBS fall into the category of medical devices, as defined in Article 2 of EU Regulation 2017/745.
10.1. Materiovigilance: Within the framework of the European materiovigilance system, the Buyer must report to CBS without delay and at the latest:
– within ten (10) calendar days, any case of a serious incident as defined in Article 87, paragraph 1, point a) of EU Regulation 2017/745.
10.2. Traceability: Furthermore, in the event of a recall of CBS Products, CBS would request the Buyer’s cooperation in transmitting the information to the end purchaser for a period of ten (10) years.
The Buyer must also provide a log including traceability information for all Products delivered by them for a period of ten (10) years or for the entire duration of the device’s use.
10.3. Post-market surveillance: The Buyer must provide CBS with all data relating to the quality, performance, or safety of the Products sold by CBS, even if the identified event did not pose a risk to the health of the user or third parties. In particular, companies authorized to perform repairs on devices supplied by CBS must send CBS, at least once a year, a summary of the events encountered.
10.4. Distributor’s obligation: The Buyer, if considered as a distributor within the meaning of Article 2 of EU Regulation 2017/745, must fulfill the regulatory obligations relating to its status.
10.5. Storage conditions: The Buyer must comply with the storage and transport conditions for medical devices provided by CBS.
10.6. Advertising: If the Buyer creates advertising materials relating to the Products, they must request validation of these materials from CBS.
10.7. Manufacturer’s obligations: The Buyer shall fulfill the obligations incumbent upon manufacturers if it makes available on the market the devices supplied by CBS under its own name, company name or brand, if it changes the intended use of the devices or if it modifies the devices supplied in such a way that it may affect the conformity of the device to the regulations in force.
11. Limitation of Liability
These terms and conditions define CBS’s entire liability (including any liability for the acts or omissions of its subcontractors) with respect to the Products and/or Services provided by CBS. In the event of a claim against CBS, only direct and material damages will be compensated.
In no event will CBS be liable for any intangible and/or indirect damages, whether foreseeable or not, such as, but not limited to, loss of profit, production, revenue, loss of use, income or commercial loss, or damage to image.
Under no circumstances shall the contractual liability for any damage in connection with an order exceed fifty (50)% of the amount of payments (excluding taxes) received by CBS for the Products or Services in question.
To the extent permitted by law, the period within which any legal action arising from CBS’s provision of Products and/or Services may be brought is limited to three (3) years from the date of provision of the Products and/or Services by CBS and no further action may be brought after the expiry of this contractual limitation period.
12. Assignment
The Buyer is not authorized under any circumstances to transfer its rights and obligations arising under the order without the prior written consent of CBS.
13. Export Controls
13.1. The Buyer acknowledges that certain transactions may be subject to export controls, in particular under the laws and regulations of the European Union, the United States, and any other country concerning export controls, sanctions, and embargoes (“Export Regulations”) that prohibit the export, re-export, or diversion of certain products and/or technologies to certain countries, and acknowledges that any diversion contrary to these Export Regulations is prohibited.
The Export Regulations apply to all export, re-export, product/technology transfer, technical assistance, and training operations conducted by CBS and may also be subject to licensing requirements in accordance with the regulations of the destination country. If the delivery of a Product or the provision of a Service is subject to licensing by a government or prohibited under export/import control regulations, CBS may suspend its obligations to the Buyer until the license is obtained or the import/export prohibition is lifted.
13.2. The Buyer agrees to comply with all Export Regulations (including any licensing requirements) for Products supplied by CBS. The Buyer also agrees to enforce the Export Regulations on its own customers in the event of transfer or re-export. The Buyer agrees to take all necessary actions to ensure that its own customers or end users comply with the Export Regulations. The Buyer shall indemnify CBS against all financial consequences arising from its failure to comply with these Export Regulations.
The Buyer declares that it is not subject to any sanctions under the Export Regulations. Furthermore, the Buyer must immediately notify CBS in writing if, during the provision of the Products and/or Services by CBS, it becomes subject to any sanctions, investigation, claim, legal action, or proceedings under the Export Regulations that may affect the provision of the Products and/or Services.
Compliance with these obligations constitutes an essential obligation of the contract binding the Buyer and CBS, therefore in the event of non-compliance by the Buyer with these obligations, CBS shall be entitled to terminate it immediately and to be compensated by the Buyer for any claim, loss, damage, cost, liability which would result directly or indirectly from this non-compliance.
13.3. The Buyer acknowledges that these obligations shall survive the termination of any contract relating to the supply of Products or Services to the Buyer by CBS.
14. Personal Data
14.1. In the event that the Buyer, during the performance of the contract, receives from CBS or otherwise obtains personal data relating to CBS employees (“Personal Data”) the following stipulations shall apply.
If the processing of Personal Data is not carried out on behalf of CBS, the Buyer will only have the right to process the Personal Data for the performance of the contract in question. The Buyer may not, except where legally permitted, process Personal Data in any other way, in particular by disclosing Personal Data to third parties and/or analyzing such data for its own purposes and/or creating a profile. This also applies to anonymized data.
Where applicable and within the framework of applicable laws, the Buyer may process Personal Data, in particular transmit Personal Data to its affiliated companies for the performance of the contract.
The Buyer shall ensure that Personal Data is only accessible to its employees if and to the extent that said employees require access for the performance of the contract. The Buyer shall structure its internal organization to ensure compliance with legal requirements on data protection. In particular, the Buyer shall take the necessary technical and organizational measures to ensure an appropriate level of security against the risk of misuse and loss of Personal Data.
The Buyer will not acquire possession or any other ownership rights to the Personal Data and is obligated, under applicable laws, to rectify, erase, and/or restrict the processing of the Personal Data. The Buyer has no right of retention with respect to Personal Data.
In addition to its legal obligations, the Buyer shall inform CBS without delay of any breach of Personal Data, particularly in the event of loss, and at the latest within 24 hours of becoming aware of it. In accordance with applicable legal provisions, upon termination or expiration of the contract, the Buyer shall delete the Personal Data, including any copies.
14.2. Information regarding CBD data protection is available on our website https://www.cryobiosystem.com
15. Jurisdiction allocation
Any dispute relating to the validity, interpretation, execution of an order or to these General Terms and Conditions of Sale shall be submitted to the Commercial Court of Alençon, whether it is a principal claim, a third-party claim or a forced intervention, a summons for interim relief, and this even in the case of multiple defendants.
However, before bringing the dispute before the competent court, the parties agree to negotiate an amicable settlement in a spirit of loyalty and good faith in the event of any conflict relating to an order or these general terms and conditions of sale, including their validity. If, after a period of 30 days, the parties are unable to reach an agreement, the dispute will be submitted to the competent court designated above.
16. Applicable Law – Contract Language
By express agreement between the parties, these general terms and conditions of sale and the resulting purchase and sale transactions of Products and Services are governed by French law, excluding in particular the Vienna Convention on the International Sale of Goods.
They are written in French. In the event that they are translated into one or more languages, only the French text shall prevail in the event of a dispute.