It is hereby recalled that: VIBISCUS, a simplified joint-stock company (SAS) with a share capital of €1,000, having its registered office at 18 rue Alain Savary, 25000 Besançon, registered with the Besançon Trade and Companies Register under number 902 920 792, SIRET number 902 920 792 00014, represented by its President, Mr. Gaël MATTEN (“VIBISCUS”), and the natural or legal person who has signed the Quotation (the “CLIENT”).
The services offered are intended exclusively for professionals within the meaning of the preliminary article of the French Consumer Code. The client certifies that it is acting within the scope of its professional activity.
ARTICLE 1 – DEFINITIONS
“Anomalies” means any reproducible malfunction attributable to all or part of the Product.
“General Terms and Conditions of Sale” means this document, which has been freely negotiated between the Parties, it being specified that any derogatory or additional clauses accepted by the Parties will be inserted in the Quotation or in special conditions.
“Quotation” means the document (quotation, order) specifying in particular the identity of the CLIENT and of VIBISCUS, the nature of the Products supplied by VIBISCUS to the CLIENT, as well as the technical, financial and scheduling conditions associated therewith, signed between VIBISCUS and the CLIENT.
“Contract” means all the contractual documents referred to in Article 3 hereof, which aim to define the conditions governing the supply of the Products between VIBISCUS and the CLIENT.
“Data” means the data and information processed under the Contract, including personal data within the meaning of French Law No. 78-17 of 6 January 1978, the General Data Protection Regulation (GDPR), or any applicable local legislation relating to the processing of personal data.
“Documentation” means the technical manual and the Product sheet provided by VIBISCUS to the CLIENT.
“Confidential Information” means any information, including Data, imaging data, business and technical information, drawings, models, software and related documents, designated as confidential by a stamp or written notice, or, when disclosed orally, if identified as confidential at the time of disclosure and confirmed in writing within one month, considered confidential between the parties under the Contract.
“Update” means any corrective patch for the Products, as well as any minor functional development provided by VIBISCUS each year during the term of the Contract.
“Products” means the Products defined and detailed in the Quotation.
ARTICLE 2 – PURPOSE
The purpose of this Contract is to set out the technical and financial conditions under which the Products are supplied to the CLIENT.
ARTICLE 3 – CONTRACTUAL DOCUMENTS
The Contract comprises, in order of priority:
– the Quotation;
– these General Terms and Conditions of Sale;
– any special conditions.
The Contract supersedes any prior document or agreement between the Parties.
Any amendment to the Contract must be signed by the Parties.
Any change to an order by the CLIENT, accepted by VIBISCUS, may change the delivery time or the amount of the order.
ARTICLE 4 – VALIDITY PERIOD OF THE OFFER/QUOTATION – FORMATION OF THE CONTRACT
Any Quotation is valid for 30 days from its issuance by VIBISCUS. The Contract is formed upon signature of the Quotation by the Parties.
The Contract takes effect on the date indicated in the Quotation or, failing that, on the date of the last signature.
ARTICLE 5 – DELIVERY, TRANSPORT AND ACCEPTANCE OF THE PRODUCTS
5.1 Delivery and transport of the Products
Unless otherwise stipulated, deliveries to the CLIENT’s premises are made in accordance with the Quotation, at the CLIENT’s expense.
Each delivery is accompanied by a VIBISCUS delivery note, dated, with the Contract references and details of the Products delivered.
The delivery period is indicative. VIBISCUS will use its best efforts to meet it, but is bound only by an obligation of means.
5.2 Acceptance of the Products
Upon delivery, the CLIENT must check the apparent condition of the Products and their packaging, the quantities, references, and the absence of visible damage or obvious non-conformities.
In the event of apparent non-conformity of a Product, the CLIENT must enter detailed reservations on the delivery note and simultaneously inform VIBISCUS in writing of any alleged defect rendering the Product unfit for its purpose, within eight (8) business days from delivery of the Product. General mentions such as “subject to unpacking” are without effect.
The CLIENT must make available to VIBISCUS all necessary means to ascertain the non-conformity of the Product(s) (including, without limitation, photos of the non-conforming Product(s)).
If the CLIENT does not comply with the notification requirements of this clause, the Product is deemed irrevocably accepted without any reservation and the CLIENT waives any claim regarding the conformity of the Product(s).
If the CLIENT notifies the non-conformities within the prescribed period and these are verified and accepted by VIBISCUS, the non-conforming Product may be replaced.
To benefit from replacement, the CLIENT must first return the non-conforming Product to VIBISCUS in accordance with the procedure provided by VIBISCUS.
As from receipt of the Product, custody of the Product shall be transferred to the CLIENT, together with all resulting obligations.
ARTICLE 6 – USE OF THE PRODUCTS
VIBISCUS Products operate in accordance with the technical manual set out in the DOCUMENTATION. If the Client demonstrates that the Products, when correctly installed, fail to attenuate noise in accordance with the attenuation curves set out in the technical manual in the DOCUMENTATION, the Product shall be deemed non-conforming and may be replaced.
ARTICLE 7 – RETENTION OF TITLE AND TRANSFER OF RISKS IN A PRODUCT
7.1 Retention of title
In the case of a sale by VIBISCUS, ownership of the Products is transferred to the CLIENT after full payment of the Price.
In the event of non-payment, the Products remain the property of VIBISCUS.
This retention of title clause remains in force until full payment of the Price.
The CLIENT must inform relevant third parties of this clause in order to preserve VIBISCUS’s interests.
The CLIENT must insure the Products against risks as from delivery and must not resell them before this clause is lifted.
Reclaiming the Products by VIBISCUS automatically terminates the Contract and triggers the termination clause in “ARTICLE 12 TERMINATION”.
7.2 Transfer of the Products and of risks
Without prejudice to the above provisions on retention of title, the CLIENT shall bear all risks of loss of or damage to the Products as from their handover to the first carrier or as from their direct availability to the CLIENT.
ARTICLE 8 – FINANCIAL TERMS
8.1 Price
Unless otherwise provided in the QUOTATION or in special conditions, the price is exclusive of tax, in euros, and without discount.
In consideration for the sale of the PRODUCT, VIBISCUS shall receive the price defined in the QUOTATION (the “PRICE”).
8.2 Payment
Invoices issued must contain the mandatory legal mentions, comply with applicable tax rules, and recall the designation of the PRODUCT, the date, the Contract reference and the detailed PRICE.
Any incomplete invoice will be returned unpaid.
By express agreement, pursuant to Article L441-10 I of the French Commercial Code, invoices are payable within 30 days from the invoice date, by bank transfer.
In the event of late payment, the CLIENT shall pay VIBISCUS late-payment penalties calculated at a rate equal to three times the applicable legal interest rate. These penalties shall accrue from the first day after the due date until the day the amount is actually credited to the PROVIDER’s account. They are due without any reminder being necessary.
In addition to these late-payment penalties, any overdue amount may be subject to a fixed recovery fee of forty (40) euros pursuant to Article L 441-6 of the French Commercial Code.
ARTICLE 9 – INTELLECTUAL PROPERTY
VIBISCUS obtains all intellectual property rights and all necessary authorizations relating to the Products and the associated Documentation and warrants that the Products and associated Documentation do not infringe intellectual property rights or any other rights belonging to a third party.
VIBISCUS undertakes to defend the CLIENT, to assume at its expense (including by settlement) and/or to indemnify the CLIENT for any losses that may result from any action or claim by a third party relating to the Products or associated Documentation.
Accordingly, VIBISCUS undertakes to join proceedings at the CLIENT’s first request in cases where the Products or associated documentation are challenged before a court. If a court were to decide that the Products or associated documentation infringe intellectual property rights or any other rights belonging to a third party, VIBISCUS must then, without prejudice to the CLIENT’s right to seek compensation for any resulting damage, including any damages that may be awarded against the CLIENT:
– either obtain, at its expense and without delay, the right for the CLIENT to continue using the Products or associated documentation;
– or substitute the incriminated items with new items approved by the CLIENT and not contested by third parties.
The sale of the Products does not confer any rights on the CLIENT over the trademarks or distinctive signs affixed by VIBISCUS on the Products and associated documentation. Furthermore, VIBISCUS remains the owner or holder of all intellectual property rights, in particular, over the photographs, presentations, studies, drawings, models, and prototypes produced in connection with the supply of the Products. Consequently, the CLIENT is prohibited from any reproduction or exploitation, in particular of said photographs, presentations, studies, drawings, models and prototypes, without VIBISCUS’s prior express written authorization.
ARTICLE 10 – CONFIDENTIALITY
Confidential Information remains the property of the disclosing Party.
All copies must be returned or destroyed at the request of the disclosing Party.
Neither Party shall disclose Confidential Information to third parties without prior authorization, except to its employees or subcontractors necessary for performance of the Contract, who must comply with confidentiality.
The confidentiality obligations do not apply to Confidential Information that: was obtained in good faith before receipt; is in the public domain without fault of the receiving Party; was obtained from a third party authorized to disclose it; is developed independently by the receiving Party; is approved in writing for disclosure; must be produced (after notifying the disclosing Party whenever possible) under applicable law or regulation, including any court order or arbitral award.
The above confidentiality obligations shall survive for five (5) years from the expiry or termination of the Contract for any reason. This expiry is without prejudice to any other confidentiality that may continue by law, in particular under trade secret protection.
ARTICLE 11 – PERSONAL DATA
It is recalled that the Contract does not imply that either Party processes personal data (“Personal Data”) on behalf of the other. However, as from signature of the Contract, each Party may receive or have access to personal data such as names, addresses, telephone numbers, and email addresses of its usual contacts for managing the business relationship, which are protected by the regulations on Personal Data, including French Law No. 78-17 of 6 January 1978 and Regulation (EU) 2016/679 (together the “Regulation”).
Under the Contract, each Party is informed that information collected by the other Party may be subject to processing, automated or not, for which each Party is identified as Controller.
The purposes of such Processing are: management of the CLIENT account; performance of services and contractual obligations under the Contract; management of the business relationship between the CLIENT and VIBISCUS; operations relating to monitoring the relationship with the CLIENT; offering services, placing orders, managing deliveries; marketing prospecting; performing commercial and marketing analyses and statistics, and developing management, measurement and reporting tools; suggesting, in a marketing context, complementary or promotional offers based on past behavior or any other relevant information; inviting contacts to commercial events; managing requests to exercise rights of access, rectification, objection, erasure, restriction and portability of personal data; managing potential disputes.
Data is not sold to any third party and is intended for each Party’s internal departments and their service providers and/or partners, each Party undertaking to ensure or have ensured confidentiality in accordance with the Regulation.
Data is retained by each Party for the duration of the business relationship plus the statutory limitation periods.
In principle, data will not be transferred outside the European Union. However, on an exceptional basis, certain data may be transferred to a third country or international organization when necessary for performance of the Contract. In such case, the Parties shall take the necessary measures to ensure an adequate level of protection in compliance with the Regulation.
In accordance with the Regulation, data subjects have rights of access, rectification, objection, erasure, restriction and portability. These rights may be exercised (attaching a copy of a signed ID document):
– For VIBISCUS: privacy@vibiscus.com
– For the CLIENT: the email address indicated on the Quotation.
Each Party has the right to lodge a complaint with the CNIL.
ARTICLE 12 – TERMINATION
The Contract may be terminated as of right without compensation in the event of a Party’s breach of its obligations.
Termination shall take effect 30 days after a registered letter is sent to the defaulting Party, unless the latter remedies its breaches or proves a force majeure event.
Termination does not release the defaulting Party from its obligations until it takes effect and does not prevent claims for compensation for losses suffered.
ARTICLE 13 – LIABILITY – INSURANCE AND WARRANTIES
13.1 Liability
Except where legally excluded, VIBISCUS’s liability is limited to direct, foreseeable and certain damages.
VIBISCUS shall not be liable for any indirect, consequential or intangible damages, including loss of profit, revenue, margin, business interruption, loss of market or the like.
In any event, except where legally excluded, VIBISCUS’s liability is limited to the sums paid under this CONTRACT.
Pursuant to Article 2254 of the French Civil Code, any action against VIBISCUS is time-barred twelve (12) months from the occurrence of the damage.
13.2 Insurance
VIBISCUS certifies that all risks related to its general and professional civil liability are covered by an insurance policy.
13.3 Warranties
13.3.1 Warranty against hidden defects
The Client benefits from the statutory warranty against hidden defects under Articles 1641 et seq. of the French Civil Code.
13.3.2 Commercial warranty
The Client benefits, on purchased products, from a commercial warranty including replacement of defective parts and labor for a period of 24 months.
Removal from the Client’s site and return of defective parts shall be at the Client’s expense.
13.3.3 Exclusions from the commercial warranty
The commercial warranty does not apply in the following cases: (i) installation not in compliance with the Documentation; (ii) misuse or use not in compliance with the Documentation (notably flow rate, temperature, humidity, particulates, ΔP); (iii) third-party intervention without prior written authorization; (iv) negligence or lack of maintenance.
ARTICLE 14 – FORCE MAJEURE
VIBISCUS shall not be liable if non-performance or delay in performance of any of its obligations results directly or indirectly from a Force Majeure event. Force Majeure means any event that is unforeseeable and irresistible both in its occurrence (unavoidable) and its effects (insurmountable).
In accordance with Article 1218 of the French Civil Code, if the impediment is temporary, performance of the obligation is suspended where the Force Majeure event does not exceed one month.
Where the Force Majeure event lasts more than one month, VIBISCUS and the CLIENT shall meet to determine appropriate measures. The most diligent Party shall notify the other Party by registered letter with acknowledgement of receipt.
Failing agreement within one month from receipt of the notification, or if the impediment is definitive, the most diligent Party may terminate the business relationship by registered letter with acknowledgement of receipt with immediate effect. In the event of Force Majeure, the CLIENT shall not be entitled to compensation.
ARTICLE 15 – ASSIGNMENT OF THE CONTRACT
The Contract is concluded intuitu personae with the CLIENT. Consequently, each Party undertakes not to transfer the Contract, or any of its rights and obligations, to a third party, and not to entrust a third party with performance of any of its contractual obligations, except with the other Party’s prior written consent. This is without prejudice to mandatory public-order legal obligations or prior written authorization.
ARTICLE 16 – ENTIRE AGREEMENT
This Contract represents the entire agreement between the Parties. It supersedes and cancels any prior oral or written commitment relating to the subject matter of this Contract.
ARTICLE 17 – WAIVERS
Any tolerance or waiver by a Party in enforcing the Contract, regardless of its frequency or duration, does not constitute an amendment to the Contract nor any right whatsoever.
ARTICLE 18 – SEVERABILITY
The nullity of one or more clauses of the Contract shall not affect the other provisions, unless the overall economy of the Contract is affected. If performance of a clause becomes impossible, the Parties shall endeavor to create a new similar clause. The other provisions shall remain in force. If the overall economy of the Contract is fundamentally disrupted, the Parties may cancel the entire Contract by written agreement.
ARTICLE 19 – ANTI-CORRUPTION
The Parties declare that they are aware of and comply with French or other local regulations on illicit payments, corruption, extortion, influence peddling and money laundering. The Parties undertake to ensure compliance by their employees and agents. In the event of a conflict of interest or independence issue during performance of the Contract, the concerned Party shall inform the other Party and seek an appropriate solution. If none is found, the concerned Party may terminate the Contract immediately, without penalty or indemnity.
ARTICLE 20 – DOMICILE ELECTION
The Parties elect domicile at the address of their registered office indicated at the beginning. They must notify any change of registered office to the other Party. Failing this, notification made to the last known registered office shall be deemed validly delivered.
ARTICLE 21 – APPLICABLE LAW – DISPUTE RESOLUTION
This Contract is governed by French law and drafted in French and English. In the event of any inconsistency, the French version shall prevail. Any dispute shall be submitted to the Economic Affairs Court of Lyon (or, failing TAE jurisdiction, the Commercial Court of Lyon). The Parties shall endeavor to settle their dispute amicably, by mediation or conciliation, without the absence of such attempts rendering any court claim inadmissible.
