INNOVATION LEADER IN THROMBOSIS AND HEMOSTASIS

Terms & Conditions of Sale

1. Application of the General Terms & Conditions:

These Terms & Conditions apply to all product sales entered into by Hyphen BioMed with its customers, irrespective of any other provisions appearing on any documents of the customer, in particular its terms & conditions of purchase, unless otherwise agreed to in writing by Hyphen BioMed. All orders placed with Hyphen BioMed entail acceptance of these Terms & Conditions. The contract of sale entered into between Hyphen BioMed and the customer will consist of the order, as accepted by Hyphen BioMed, and these Terms & Conditions (hereinafter the “Contract”).

2. Orders:

Orders placed by telephone must be confirmed in writing, either by mail or by fax, and be marked “confirmation of telephone order of (date)”. Orders are only final following acceptance in writing by Hyphen BioMed and will become firm and irrevocable as of acceptance. Hyphen BioMed's acceptance can also result from the delivery of the products ordered by the client.

3. Payment:

The settlement of invoices related to the products must be made within 30 days following the date of the Hyphen BioMed invoice issued upon delivery. Hyphen BioMed nevertheless reserves the right to request the payment of any order in cash after analysing the credit situation of the customer. In the event of any delay in payment, Hyphen BioMed may, without prejudice to its other rights and remedies, nor with any formal notice being necessary, (i) suspend all pending orders, (ii) invoice late payment penalties as of the day following the invoice due date by applying to the amount including taxes an annual interest equal to the closest reference rate applied by the ECB to its refinancing operations + 10 points, and (iii) apply a fixed compensation of €40 for recovery costs without prejudice to its right to claim any additional expenses incurred in recovery.

4. Price:

4.1. The prices of Hyphen BioMed products are given excluding taxes. All taxes on turnover, value added, all registration fees, customs duties on imports or exports and, more generally, all taxes, duties, charges or fees charged by any governmental authority (including local or municipal authorities) on the products or their transport and any increase of the price of the products or the transport costs resulting therefrom are not included in the price of the products and will be payable by the customer in addition to the price, or, if they must be incorporated into the unit price, such price will be increased in proportion to their amount.


4.2. The prices shall be revised each year on 1st January. They can also be revised during the calendar year in case of modification of the needs of the customer or, subject to a prior notice of 15 days, in case of increase of production, manpower, transport (in particular of fuel) or energy costs or of the purchase price of raw materials.

5. Deliveries:

5.1. Product deliveries will be made EXW from the laboratories of Hyphen BioMed, 155 rue d’Eragny, 95000 Neuville-sur-Oise, Incoterms 2010.

5.2. The contract of carriage will nevertheless be concluded by Hyphen BioMed. Within metropolitan France, packaging and delivery/transport costs are borne by Hyphen BioMed for all orders higher than €230 excluding taxes; for all orders below €230 excluding taxes, a flat-rate charge for processing costs of €30 excluding taxes will be charged per order; for all urgent deliveries (less than 24 hours), an additional flat-rate charge of €23 excluding taxes will be charged per order, irrespective of the amount of the order. The cost of any special packaging (containers, insulators, dry ice or ice packs) necessary for certain deliveries will be borne by the customer, irrespective of the amount of the order. For all deliveries outside of metropolitan France, all packaging and delivery/transport costs shall be borne by the client.


5.3. Irrespective of the delivery conditions, the goods travel at the risk and peril of the recipient, with no insurance subscribed by Hyphen BioMed, from the above-named place of delivery in accordance with the EXW rule of Incoterms 2010. In the event of loss or damage during transport, the customer must notify the carrier of any loss or damage noted within the deadlines set by law and inform Hyphen BioMed of such notification.


5.4. The delivery periods are indicative. No damages for delay may be claimed; the customer may however cancel the order one month following the issue of a formal notice to Hyphen BioMed remained without effect.


5.5. Unless expressly agreed between Hyphen BioMed and the customer, no deliveries will be made on a Friday because of the weekend and the risk of inappropriate storage.

6. Non-conformity – Claims – Liability:

6.1. Hyphen BioMed warrants that its products are in conformity with the specifications indicated in the order and the order acceptance as well as in the Hyphen BioMed catalogue.

6.2.
Any claim for non-conformity concerning the order or defective product must be sent by means of registered letter with acknowledgment of receipt within a period of 7 days as from delivery of the products. Failing this, the products delivered will be deemed to be in conformity with the order as regards their quantity and quality.


6.3
. No products may be returned without the prior consent of Hyphen BioMed. Following the agreement of Hyphen BioMed and the allocation of a return number, return will be carried out at the expense and risk of the customer. The use of reagents in their entirety entails the waiving by the customer of any claim for non-conformity.


6.4.
The warranty provided by Hyphen BioMed is, at the choice of Hyphen BioMed, strictly limited to the free replacement of products recognised by Hyphen BioMed as non-conforming or defective or to their reimbursement by Hyphen BioMed, to the exclusion of any other damages for whatever cause or prejudice. This warranty will not apply in the event of any accident or negligence in the use of the products, nor of any usage, storage or handling of the products that does not comply with the instructions of Hyphen BioMed or industry standards, or in the event of any modification or intervention from the customer on the original products.


6.5.
To the full extent permitted by law, no other warranty than those mentioned in Article 7 and this Article 6 will be provided by Hyphen BioMed, in particular no warranty against hidden defects or warranty of title or non-infringement of third-party rights, of quality or conformity, or that the products are fit for any ordinary or particular purpose. To the full extent permitted by law, the liability of Hyphen BioMed is in any event limited to the amount of the sums received by Hyphen BioMed for the order in question; Hyphen BioMed may in no case be held liable for any commercial or intangible loss (including, but not limited to, any loss of profit, savings, business interruption or any loss arising from any third-party claim). The customer in this respect recognises that the prices set by Hyphen BioMed take account of the exclusions and limitations of liability and warranty provided under these Terms & Conditions and that, consequently, it must assume liability or insure itself for any damage or loss related to such exclusions and limitations. These exclusions and limitations are also applicable to any recourse by the customer’s insurers, either by direct action or subrogation.


6.6.
Hyphen BioMed will be released from its obligations under the Contract in cases of force majeure: in particular, war, riot, fire, floods, strikes, accidents, or the inability of Hyphen BioMed to receive supplies or ensure delivery of the products under reasonable conditions will all be deemed cases of force majeure.

7. Intellectual property:

Hyphen BioMed warrants only that the products do not violate any intellectual property law in France. This warranty will not apply if the products are manufactured according to the specifications of the customer. In the event of any violation of intellectual property law, the warranty of Hyphen BioMed will be limited, at the choice of Hyphen BioMed, to the replacement of the products by non-infringing products, on acquisition at the expense of Hyphen BioMed of the right to use the products by the customer, or to the reimbursement of the sums received by Hyphen BioMed from the customer for the products in question.

8. Use and compliance:

The Hyphen BioMed products are solely intended for in vitro use for the purposes of medical diagnosis. The use of the products by the customer shall in no way violate any law or regulation. The customer shall be solely responsible at its own cost for compliance with all laws and the requirements of all governmental authorities applicable in relation to the import, export, promotion, labelling, packaging, distribution, sale of the products and servicing of the instruments (including but not limited to the laws with regard to hazardous material and waste handling, ecology, personal information protection, insider trading prohibition, anti-corruption and unfair competition). For all product sales by Hyphen BioMed outside France, the customer will be solely responsible at its own cost and risk, for ensuring the conformity of the products with any law or regulation applicable to the use or sale of the products in the country of destination of the products; in particular, the customer must ensure that any registration or other approval, any translation, labelling, instructions for use or other information or warning concerning the Contract or the products conform with the applicable laws or regulations of the country of destination of the products.

9. Export control compliance:

The performance of the Contract is subject to compliance with applicable laws, regulations or orders of France, the European Union, Japan and the United States with regard to export and trade control, including those that may relate to the export of goods, software, technologies or technical information (regardless of whether tangible or intangible), such as, without limitation, Foreign Exchange and Foreign Trade Act/Regulations of Japan and Export Administration Act/Regulations of the United States, as amended from time to time, and the parties agree to comply with all such laws, regulations and orders.  Neither party will export, directly or indirectly, any goods, software, technologies or technical information (regardless of whether tangible or intangible) without first obtaining any required export license or government approval.  In the event any goods, software, technologies or technical information (regardless of whether tangible or intangible) is export-controlled, each party shall provide the other party with written notice containing the nature of the export-controlled goods, software, technologies or technical information (regardless of whether tangible or intangible), prior to any shipment or exchange of export-controlled goods, software, technologies or technical information (regardless of whether tangible or intangible).  In addition, each party agrees that it will not use, transfer or convey (including by electronic transfer such as e-mail) to anybody any goods, software, technologies or technical information (regardless of whether tangible or intangible) obtained from the other party under the Contract for the purposes of developing, manufacturing or stockpiling any items which can be used for military purposes, war material or assimilated material, conventional weapons, nuclear weapons, nuclear explosive devices, chemical weapons, biological weapons or weapons delivery vehicles.

10. Retention of title:

UNTIL SUCH TIME AS THE CUSTOMER MAKES FULL PAYMENT OF THE PRICE (INCLUDING ANY PENALTIES FOR LATE PAYMENT), HYPHEN BIOMED RESERVES THE RIGHT OF TITLE TO THE PRODUCTS SOLD, PERMITTING IT TO REPOSSESS SAID PRODUCTS. THE RISK OF LOSS OF OR DAMAGE TO THE PRODUCTS, AS WELL AS THE RISK OF ANY DAMAGE THEY MIGHT CAUSE, WILL NEVERTHELESS BE TRANSFERRED TO THE CUSTOMER AS OF DELIVERY OF THE PRODUCTS. THE CUSTOMER WILL CONSEQUENTLY, AT ITS EXPENSE, ARRANGE FOR THE INSURANCE OF THE PRODUCTS FOR THE BENEFIT OF HYPHEN BIOMED UNTIL THE FULL TRANSFER OF TITLE, WITH PROOF OF INSURANCE PROVIDED ON DELIVERY UPON REQUEST. THE CUSTOMER ALSO UNDERTAKES TO STORE THE PRODUCTS SEPARATELY FROM ITS OTHER ASSETS AND CLEARLY IDENTIFY THEM AS BEING THE PROPERTY OF HYPHEN BIOMED UNTIL FULL PAYMENT OF THE PRICE. THE CUSTOMER WILL HAVE THE RIGHT TO USE OR RESELL THE PRODUCTS IN THE NORMAL COURSE OF BUSINESS, BUT THIS RIGHT WILL CEASE IMMEDIATELY IN THE EVENT OF NON-PAYMENT OF ANY SUM DUE TO HYPHEN BIOMED BY THE DUE DATE: HYPHEN BIOMED MAY IN THIS CASE REPOSSES THE PRODUCTS.

11. General:

11.1. If any provision of the Contract is declared invalid, ineffective or unenforceable, this will not affect the validity and enforceability of the other provisions and the parties will undertake to replace such provision with another valid provision which will have the closest possible economic effect.

11.2. The failure to exercise any right under this Contract will in no case entail the waiving of such right, which may subsequently be exercised by the party concerned.

12. Disputes:

12.1. The Contract will be subject to and interpreted in accordance with French law. The 1980 United Nations Convention on Contracts for the International Sale of Goods will not apply to this Contract.

12.2.
ANY DISPUTE ARISING FROM OR IN RELATION TO THIS CONTRACT WILL BE SUBJECT TO THE SOLE JURISDICTION OF THE COMMERCIAL COURT OF PONTOISE INCLUDING, BUT NOT LIMITED TO, ANY DISPUTE RELATING TO ITS INTERPRETATION, VALIDITY, PERFORMANCE OR TERMINATION, AND ANY SUMMARY PROCEEDINGS (PROCÉDURES EN RÉFÉRÉ) OR PROVISIONAL AND PROTECTIVE MEASURES (MESURES PROVISOIRES OU CONSERVATOIRES) NOTWITHSTANDING ANY NUMBER OF DEFENDANTS, ANY ACTION ON A WARRANTY OR GUARANTEE OR OTHER THIRD PARTY PROCEEDINGS AND ANY COUNTER-CLAIMS.

 

D720-05 v6 - HYPHEN BioMed SAS, 95000- NEUVILLE sur OISE, (France)