Miratlas General Terms and Conditions of Sale
Valid as of 01 September 2018
Article 1: Scope and Applicability
MIRATLAS SAS, French Reg. No. 839 239 498 RCS Manosque (“MIRATLAS”) is engaged in research, development, manufacture and sales of scientific equipments. Unless otherwise expressly agreed in writing, these General Terms (“Terms”) shall apply between MIRATLAS and its customers (“Customer(s)”) with respect to Products sold and Services performed. Miratlas warrants to the original purchaser that the Miratlas products conform to applicable specifications and is free from defects in materials and workmanship. These warranties start on the shipment date from Miratlas and continue until the end of the warranty period listed in Miratlas’ sales order, or in Miratlas’ specifications or one years, whichever occurs later. The obligations of Miratlas are limited to repair or replace (at Miratlas’ option) any product that does not meet the Miratlas warranty during the warranty period. Miratlas warrants repaired or replaced products under warranty only for the remaining un- expired period of time in the original warranty. Miratlas reserves the right to issue a credit note for any defective products that have proved defective through normal usage, purchaser debit memos are not allowed. This warranty governs over any conflicting terms in purchaserʼs purchase order or other Miratlas documents.
Article 2 : Delivery of Products
Unless otherwise agreed, products are delivered Ex-Works from MIRATLAS’ premises (INCOTERMS 2010) and the related consequences shall apply even when MIRATLAS accepts to arrange transportation on Customer’s behalf. As soon as it becomes aware of a possible delayed delivery MIRATLAS shall inform Customer accordingly so that both parties can cooperate with a view to mitigating any consequential loss. In any event MIRATLAS’ liability as to any delayed delivery shall be null as MIRATLAS do not master 3rd party freight forwarders’ acts. However, on a case per case basis, MIRATLAS shall study Customers claim and find a fair resolution of disturb linked to any delay caused by shipment. Any claim for damages not forwarded within 15 days after the agreed delivery date shall lapse. Any further claim due to delay shall be excluded.
Article 3: Performance of R&D Services
MIRATLAS shall ensure that ordered Services are performed conscientiously and with the optimum utilization of the expertise at MIRATLAS’ disposal and its liability, particularly as to delivery time schedule and with regard to reaching the technical specifications, shall be interpreted and limited accordingly. If a budget has been agreed upon, MIRATLAS shall obtain Customer’s consent before incurring costs that can reasonably be expected to exceed the total budget. If it becomes apparent that an agreed milestone shall not be complied with by some significant extent, MIRATLAS shall inform Customer accordingly so that both parties can cooperate with a view to mitigating any consequential loss.
Article 4: Intellectual Property Rights
These Terms shall not constitute or imply any transfer of, or grant of license to, intellectual property rights (“IPR”) held by either party or generated outside their collaboration. MIRATLAS shall be unrestricted in its right to use IPR generated by itself during the course of manufacturing Products or performance of Services, unless MIRATLAS has accepted specific limitations in writing. Any jointly developed IPR shall be co-owned by the parties which undertake to negotiate in good faith between them all necessary co-ownership agreement so as to grant each of them with fair and balanced obligations, rights and benefits with regard to the protection and the use of such IPR.
Article 5: Confidentiality
Any information disclosed to Customer by MIRATLAS shall be deemed to be confidential and shall be treated and maintained as such by Customer during a minimum period of ten years. Unless otherwise agreed, MIRATLAS shall be entitled to state the Customer’s name in MIRATLAS’ list of references.
Article 6: Prices and Payment
All prices are exclusive of any applicable sales or value added taxes as well as transportation and insurance charges. Such taxes and charges will be stated separately on invoices. Services shall be paid for according to (i) an agreed payment schedule with respect to lump sums or, in the absence thereof, (ii) monthly invoices based on MIRATLAS’ hourly rates (calculated in half-hour intervals) and rates for the use of special equipment plus expenses incurred for materials, travel, deliveries from sub-suppliers etc. Prices and rates may be adjusted in accordance with standard price trends once a year as of 1st January. All payments shall be affected in EUROS (EUR), unless another currency has been quoted, no later than 30 days from the date of the invoice, unless writtenly informed on the quote and pro-forma invoice. In the event of delayed payment, MIRATLAS shall upon giving one week’s notice be entitled to terminate all, or some, pending deliveries or Services. Simultaneously, all outstanding amounts shall fall due regardless of previously granted terms of credit. On delayed payments an interest of 1% per commenced month is accrued, but applicable only after a full one (1) full month initial payment delay free of interest. In case of order cancellation should this cancellation occur no later than 10 days after booking of Purchase Order from the Customer, the Customer will be charged with 60% of the Products total price in order to cover the basic expenses or even damages faced by MIRATLAS. Until payment has been received in full by MIRATLAS, title to/ownership of the Products shall remain with MIRATLAS, and in the event of non-payment, MIRATLAS, in addition to all other rights and remedies available to it, be entitled to recover possession of the Products.
Article 7: Warranty
MIRATLAS warrants that its Products shall be manufactured in accordance with good workmanship. This Warranty is expressly made in lieu of any and all warranties, expressed or implied, including, without limitation, warranties of merchantability and fitness for any particular purpose. MIRATLAS does not warrant any functionality of designs, etc. furnished by the Customer. The Customer shall examine the Products upon receipt and any alleged breach of warranty shall be notified to MIRATLAS immediately. The sole liability of MIRATLAS for breach of warranty shall be the prompt repair or replacement of non-conforming products. The standard warranty expires twenty-four months (24) after the final delivery. On a case per case basis, MIRATLAS reserves the right to accept that this period be postponed till the installation of the laser set is made in the Customer’s system. This will have to be expressly stated in writings to MIRATLAS by Customer. For personal injuries and damage to consumers’ goods, MIRATLAS remains liable in accordance with the applicable mandatory laws. MIRATLAS’ aggregate liability vis-à-vis Customer, whether in contract, warranty, tort or otherwise, arising out of, connected with, or resulting from the performance or non-performance of any sale of product or service agreement shall in no event exceed the contractual price of the related product or service.
Article 8: Warranty Limitations
This warranty excludes and does not cover defects or damage resulting from any of the following:unauthorized modification, misuse, disassembly or opening, neglect, or damage from accident; operation outside environmental specifications or product ratings; user software or interfacing; components and accessories manufactured by companies other than MIRATLAS, which have separate warranties; improper or inadequate installation, site preparation or maintenance; or failure to follow information and precautions contained in the operating manual. All products or components (including software) identified as experimental, prototypes or to be used in field trials are not warranted and are provided to the purchaser on an “as is” basis.
MIRATLAS assumes no responsibility for purchaser supplied material. Products and repaired products may contain components that have been previously used in other product units provided that the products meet or exceed MIRATLAS’ specifications for newly manufactured products.
The purchaser must give prompt notification to MIRATLAS of any claim under the warranty in writing. MIRATLAS has no responsibility for warranty claims more than 30 days after the claimed defect is discovered by the use. The purchaser is responsible for providing appropriate utilities and operating environment as stated in the operating manual and the specifications. This warranty applies only to the original purchaser at the initial installation or delivery point. The purchaser must make all claims under this warranty and no claim will be accepted from any third party.
EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH ABOVE, MIRATLAS SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS TO PURCHASER, INCLUDING WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES, SUCH AS FREEDOM FROM INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
THE REMEDIES PROVIDED HERIN ARE PURCHASERʼS SOLE AND EXCLUSIVE REMEDIES. IN NO EVENT SHALL MIRATLAS BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THE PRODUCT (INCLUDING LOSS OF PROFITS) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY. MIRATLASʼ MAXIMUM LIABILITY WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT PAID FOR THE PRODUCT BY PURCHASER. THESE LIMITATIONS MAY NOT APPLY TO YOU UNDER THE LAWS OF CERTAIN JURISDICTIONS.
Article 9: Disputes
Unless the parties agree otherwise, any dispute arising out of, or in connection with these Terms shall be finally settled by the authorized jurisdiction of the Commerce Law Court of Manosque, France, in accordance with the Rules, Laws and Procedures of FRANCE.