GENERAL TERMS AND CONDITIONS OF SALE AND USE: OPHTAZON NEW OR USED EQUIPMENT RESALE PLATFORM
TCSU 20210415 (April 2021)
OPHTAZON is a company specialised in the trading of new and/or used medical supplies and equipment. The company is not a manufacturer.
OPHTAZON, via its online sales platforms, https://www.ophtazon.com and https://www.ophtazon.fr, connects professional buyers with professional vendors of new machines or doctors wishing to sell used machines.
The present General Terms and Conditions of Sale and Use (hereinafter referred to as “TCSU”) shall apply to all contracts concluded by OPHTAZON with professional clients (hereinafter referred to as “Clients” or “Buyers”), designated separately as a “Party” or collectively as the “Parties”.
The present TCSU specify the terms of these contracts and all the obligations and rights of the Parties resulting therefrom. All orders placed using OPHTAZON are subject to these TCSU unless exceptional conditions apply. The present TCSU apply to all concluded contracts from their date of signature.
Users of OPHTAZON’s online platform, when posting an advert, are deemed to have the full legal capacity to do so and to adhere without restriction or reserve to the present TCSU.
ARTICLE 1 – DEFINITIONS
Advert: shall mean all the elements and data (visuals, text, sound, photographs or drawings) posted by the Advertiser for which they take sole editorial responsibility in order to buy, rent or sell a product or service, and published on the Website and/or the Applications.
Advertiser: shall mean any professional natural or legal person, acting exclusively for business purposes, based in France or abroad, holder of an account and having posted an advert from this account on the Website and/or the Applications. The Advertiser connects to their account in order to publish and manage the advert or adverts. The first time an advert is posted automatically generates the creation of the Advertiser’s own account. The Advertiser may have the status of a Vendor or a Buyer.
Vendor: shall mean any Advertiser, acting exclusively for business purposes, based in France or abroad, holder of an account and having published an advert using the Website and/or the Applications or any other medium, in order to sell new or used medical equipment.
Buyer: shall mean any Advertiser, acting exclusively for business purposes, based in France or abroad, holder of an account and having posted an advert using the Website and/or the Applications or any other medium, in order to purchase new or used medical equipment.
Account: shall mean the free space that all Advertisers must create and to which they must connect from the Website or the Applications, in order to publish, manage or view their adverts, and/or subscribe to one or more paying options.
Customer Service: shall mean the department from which the Advertiser can obtain additional information. The Customer Service department may be contacted by email by clicking on the link on the Website and/or the Applications.
Website: shall mean the Website operated by OPHTAZON, accessible primarily via the URL www.ophtazon.fr and allowing Users, Buyers and Advertisers to access the online services via the Internet.
Used equipment: shall mean medical equipment that has already been used by the professional Advertiser.
New equipment: shall mean medical equipment that has never been used for any purpose, and advertised online by a professional Manufacturer.
Manufacturer: shall mean any legal entity at the origin of the manufacturing of the equipment and/or its first sale.
User: shall mean any person connecting to the OPHTAZON platform.
Consumables: shall mean products that are essential for the operation of a machine or for obtaining a result but whose life is limited to their wear and/ or actual consumption.
ARTICLE 2 – CONDITIONS OF APPLICATION
2.1 These general conditions are intended to determine the conditions of sale and OPHTAZON’s terms of supply of products and services to companies and/or independent professionals who place an order.
2.2 The Buyer intends to purchase equipment belonging to either a professional Supplier, if new, or a professional medical Vendor, if used. The Buyer is him/ herself a medical professional or a company specialised and established in the sale of medical machines, and who declares to have knowingly selected the equipment. OPHTAZON is the intermediary between the Vendor and the Buyer.
2.3 Sales options Two sales options are offered to the Vendor:
Option N°1: INTERMEDIATION: This Option is only for professionals (ophthalmologists, orthoptists, optometrists or opticians), excluding corporations,
The Vendor publish his advert using the Website and/or the Applications, in order to sale his equipments directely to the interested Buyers. The Vendor post his adverts himself.
OPHTAZON communicates to the Vendor the contact details of all those interested in purchasing the equipment for sale. In this case, OPHTAZON is considered as a supplier of contacts.
Payment of the commission due to OPHTAZON conditions the communication by OPHTAZON of the contact details of parties interested in the equipment for sale. The number of contacts that can be sent is unlimited.
Once the commission received by OPHTAZON, all interested contacts will be transmitted to the Vendor until the Vendor withdraws the Advertisement from the website and/or the Application.
The following information will be communicated to the Vendor: doctor’s first name and surname or company name, address and telephone number. This option is valid 1 (one) Year for any Vendor in France or outside mainland France.
The Buyer and Vendor shall make contact and carry out a bipartite sale without any other OPHTAZON service being provided.
Any other request for services by the Vendor or the Buyer shall be possible, but shall be subject to a prior estimate for the service requested. Payment must be made before the service is delivered.
The Vendor agrees to remove his advertisement from the Website and/or the Application, as soon as the sale of the material he advertised online. He will receive a monthly message asking if his equipment is sold or not.
Once the Equipment is removed from the sale, the Vendor will have to pay the costs of filing a new advertisement, whether it is the same material or an equipment different from the one that was the subject of the first advertisement.
Option N°2: DEPOT-SALE MANDATE: OPHTAZON handles the entire sales process with the Buyer, undertaking the following services: publishing the
advert on the Website, management of the contact, negotiation, financial transaction, removal of the equipment from the Vendor’s place of business,
verification of the equipment and pre-shipment packaging for safer delivery.
The equipment must be collected from the customer and displayed in the showroom, except if the date of availability of the machine is later than the date of posting of the advert on the website.
As soon as the activity of the Vendor stops, the equipment will be recovered by OPHTAZON to carry out the technical check and display the material in the showroom.
The guarantee of OPHTAZON is included in this option, under the conditions described in article 9 hereof.
These conditions are valid for a Client based in mainland France. They might be valid for others vendors, outside mainland France, only with special agreement of OPHTAZON.
This Option n°2 involves for the Vendor his agreement for 3 months exclusivity with OPHTAZON, on the considered equipment.
Vendors located outside mainland France may choose Option N° 2, but must ship the equipment to OPHTAZON’s premises at their own expense. Storage costs will be invoiced during the sales process in accordance with the rates mentioned in paragraph 5.10. Storage costs will be clearly listed in the sales contract.
2.4 Unless specifically agreed in writing by OPHTAZON, any product order via OPHTAZON implies the Advertiser’s full and unreserved acceptance of the present TCSU, to the exclusion of any other documents and conditions that may appear in Advertisers’ documents, or any other clauses that may be included in other documents, such as OPHTAZON’s prospectuses, notices or catalogues.
2.5 The applicable conditions refer to those conditions in effect on the date the Buyer’s order is validated by OPHTAZON.
2.6 The fact that OPHTAZON does not avail itself at a given moment of any one of the stipulations of the present TCSU cannot be interpreted as a waiver of the right to avail itself of such at a later date.
2.7 The acceptance of the present TCSU is required for use of the online professional sales platform. The present TCSU are published online and the latest version can be consulted at any time.
2.8 Characteristics of the Vendor’s account
Accounts are required to include:
- Name of the company or independent professional
- SIRET number (for France and DOM TOM) or company registration number if overseas
- Telephone number
- Email address
- Full postal address: street number and name, postcode, town and country.
2.9 Characteristics of the sales advert
2.9.1: The cost of the Advert: A fee will be charged for the publication of an advert on www.ophtazon.fr or www.ophtazon.com. The unit cost per advert
shall be a fixed flat rate of 50 € excluding VAT (or USD equivalent, calculated at the current rate of exchange retained by OPHTAZON on the day the advert is published), outside periods during which special rates and/or free publishing are offered.
The validity period is one year, renewable until the day of the anniversary date of publication of the advertisement.
A package rate of 200 € excluding VAT (or USD equivalent, calculated at the current rate of exchange retained by OPHTAZON on the day the advert is published) shall be charged for the publication of five (5) adverts, outside periods during which special rates and/or free publishing are offered. The period of validity is one year, renewable until the day of the anniversary date of publication of the first Advert.
A Premium package valid for one year shall be charged 400 € excluding VAT (or USD equivalent, calculated at the current rate of exchange retained by
OPHTAZON on the day the advert is published) outside periods during which special rates and/or free publishing are offered. The Premium package
- Unlimited listing of adverts during a period of one year from the date of publication of the first advert.
- Automatic promotion of listings: pushing listings to the top of search results, direct emailing to interested Clients, promoting items on strategic pages of the Website.
- Free visit of OPHTAZON to the Client to post the sales advert(s) (for three or more items placed for sale). OPHTAZON guarantees the machine’s quality via the OPHTAZON certificate.
2.9.2: Sales adverts are required to specify:
- Type of machine
- Make of machine
- Exact model/ reference of the machine in the description
- Exact year of manufacture
- Frequency of use
- Description of the advert
- Sales price
- At least two photos, of the highest possible quality
- Country where the machine is located at the time of listing
- General Terms and Conditions of Sale applicable to the machine if the Vendor is also the Manufacturer.
When listing equipment for sale on the OPHTAZON platform, the Vendor confirms that:
- The machine is in working order: in the event of malfunction or missing parts, the Vendor declares that he has informed OPHTAZON or the potential Buyer in writing.
- The accessories essential for the machine’s functioning have been provided and are included in the sales price, with the exception of necessary consumables that may be purchased separately.
- The consumables are still available on sale. In the contrary, the Vendor must indicate clearly in his Advert that the consumables are no longer available for sale on the day the equipment is sold.
OPHTAZON reserves the right to refuse or delete any advert modified by the Advertiser that does not comply with the publishing rules. In case of refusal by OPHTAZON to publish the modified advert, an email informing the Advertiser of this will be sent.
OPHTAZON reserves the right not to publish an advert that may damage the brand image of a Manufacturer, or that features equipment that is not presentable or whose age could potentially pose a risk to the Buyer. Advert listing fees will be credited to the Client’s account as a credit note.
2.10 Characteristics of the Buy Advert
Buy Adverts are required to specify:
- Type of machine required
- Preferred make
- Preferred model
- Year of manufacture
- General appearance of the machine: good, or showing signs of wear and tear
- Maximum purchase budget
- Country where the doctor practices
- Country to which the machine should be delivered.
2.11 Advert removal
The Vendor may remove an advert from the sales platform at any time, via their account or on simple request to OPHTAZON, without having to justify the
reason for doing so.
- During the 3 months exclusivity time
- If OPHTAZON has informed the Vendor that an order is in progress on the concerned equipment
- If the Vendor has directly received an order from a Buyer
If, in one of those three hypothesis, the Vendor still want to withdraw his Advert from the Website and/or the Application, he might be subject to penalties, calculated as follows:
- 50% of the agreed sales price
- 20% of the announced sales price if the equipment is not concerned by an order in progress, but if the Vendor is still during the 3 months exclusivity time (Option n°2, point 2.3).
In all cases, OPHTAZON must indicate to the Vendor within 48 hours if an order is in progress on the concerned equipment.
Except for the above situations and in accordance with Article 3.3, the Vendor may not remove the Equipment from the sale before a period of seven days.
After seven days, if the agreed price for the order has not been received, the Vendor is allowed to remove or to modify the Advert.
Buy adverts will be deleted automatically after one year if they have not been modified by the Advertiser.
ARTICLE 3 – MODELS – AVAILABILITY
3.1 Information contained in catalogues, prospectuses, notices, technical manuals or any other document published by OPHTAZON is non-binding and provided for illustrative purposes only. OPHTAZON may modify or remove a model at any time without notice. Deadlines are indicative only.
3.2 The contract is concluded subject to the acceptance of the order and confirmation of such by OPHTZAZON to the Buyer by letter or email, and to the product’s availability from OPHTAZON’s own suppliers and/or Advertiser-Vendors, upon receipt of the order form and receipt of payment of the price by OPHTAZON.
In the event the order is refused, knowing that the absence of a response within 72 hours of receipt of the order indicates a refusal, the present contract will be considered null and void, and no indemnity of whatsoever nature may be claimed.
Payment conditions the validation of the order.
Any payment made while the goods are unavailable and the order remains unconfirmed will be reimbursed within one week.
3.3 The Vendor agrees, upon confirmation of the existence of an order by OPHTAZON, to immobilise the equipment for at least one week (7 days), to allow OPHTAZON to ensure that payment of the sales price has been received.
ARTICLE 4 – PRICE
4.1 The product price varies depending on the nature of the equipment.
4.2 OPHTAZON’s remuneration depends on the chosen Option
In the case of Option N°1: OPHTAZON is considered a supplier of contacts and no other service other than putting the Parties in touch with each other is
OPHTAZON’s commission, 3% of the sales price published by the Vendor, is due, entirely, before the first contact is sent by OPHTAZON to the Vendor.
The payment has to be made by credit card, through a secure link or through the secure Website of OPHTAZON.
During one year after the reception of the payment, the number of sent contacts is unlimited.
In the case of Option N° 2: The sales price includes the fees to remove the machine from the surgery, clinic or hospital of the doctor selling it, transportation to OPHTAZON’s premises, the technical inspection of the machine and the preparation of the shipment to the Buyer. A six month warranty period is offered for all equipment less than eight years old. This price excludes transportation costs, customs duties, insurance costs, installation and set-up costs, training costs and any other additional costs to be borne by the Buyer.
For this Option n°2, OPHTAZON’s remuneration is degressive, according to the amount of the selling price
- Selling price less than €600, the commission is equal to 50% of the selling price
- Selling price from €601 to €1,000, the commission is 30% with a minimum of €300
- Selling price from 1001 € to 10,000 €, the commission is 30%
- Selling price from €10,000 to €20,000, commission is 25% capped at €3,500.
- Selling price from €20,000 to €45,000, commission is 20% capped at €4,500
- Selling price above €45,001, commission is 10% capped at €20,000
This commission will be charged on the sale price of the equipment before payment of the invoice issued by the Vendor.
4.3 Prices are displayed in euros, excluding VAT and local EXW of OPHTAZON, in accordance with 2010 Incoterms to which applicable sales taxes will be added at the time of delivery. Certain transactions may be made in US dollars, but only with the prior and explicit consent of OPHTAZON. The applicable exchange rate shall be that set by the European Central Bank (ECB) on the day the estimate is issued plus exchange rate charges.
4.4 GRADUAL DISCOUNT: only for the Option n°2 Adverts (§2.3), a gradual discount of the sales price of the unsold equipment is applied depending on the duration of the online Advert.
This gradual discount will not entail any reduction in the commission initially received on the advertised sales price.
Every three months after the advert is published, the sales price will be reduced by 10%, until the Vendor removes his Advert or the equipment will be sold.
4.5 When selling a product on the OPHTAZON platform, the Vendor shall be given the option to donate part of the sale to a charity of their choice. The list of beneficiary charities is available on the partner charity section of the OPHTAZON platform. The Vendor is free to determine the amount they wish to donate. This donation is not compulsory.
Following the sale of the machine, in the event that a donation is made to a charity, the charity will issue the Vendor with a tax receipt for the donation received.
4.6 In the case of Option N°2, the Vendor shall be paid by OPHTAZON within 30 days following receipt of the sales invoice addressed to OPHTAZON.
Payment shall be made by bank transfer only.
ARTICLE 5 – PAYMENT CONDITIONS
5.1 The Buyer might buy the equipment through the Website that offers a secure link for the payment.
In case of using another mean of payment, OPHTAZON cannot be considered as liable if the advert is removed or if the equipment is no more available. The purchase confirmation is issued by OPHTAZON by return of purchase order, provisional invoice or invoice paid, upon receipt of the entire payment without prejudice to the delivery deadlines.
If another Buyer buys the material in the meantime via the payment link of the website, OPHTAZON cannot be held responsible for the cancellation of the order paid out of the payment module of the website and will refund the amount of any sums paid for the material under deduction of the various costs incurred by the payment and the refund.
5.2 Payment shall be made by bank-to-bank wire transfer in accordance with the terms specified by OPHTAZON when the order is validated (communication of bank details – BOC/ SWIFT/ IBAN – to be used for the transfer) or by credit card via secured link. OPHTAZON’s bank details are included on the invoice and on its Website.
5.3 Any other payment method may only exist by express written consent.
5.4 In the event that a differed payment has been granted to the Buyer under specific conditions:
- OPHTAZON reserves the right, at any time, to request payment guarantees from the Buyer. Should the Buyer refuse to provide such,
OPHTAZON is entitled to cancel any orders in progress without the Buyer requesting any kind of indemnity.
- The Buyer undertakes to settle all invoices presented by OPHTAZON within the agreed payment deadlines, and no later than 30 (thirty) days at the end of the month following the invoice date.
- In case of non-payment or late payment, and without prejudice to any other rights or remedies of OPHTAZON, all sums owed by the Buyer become immediately due and will be increased by a late penalty charge equal to the interest rate set by the European Central Bank (ECB) for its most recent refinancing operation, inflated by ten (10) percentage points. This penalty charge shall be payable without prior notification.
- In case of non-payment, OPHTAZON reserves the right either to request the execution of the sale, or to resolve the contract via registered letter with acknowledgement of receipt and to retain, as compensation, the deposit paid upon ordering, without prejudice to penalties for late payment or to damages.
- Fixed sum as compensation for recovery costs:
Any late payment shall incur the payment of a fixed sum compensation of 40 euros for recovery costs. OPHTAZON reserves the right to request additional compensation from the Buyer if the recovery costs actually incurred exceed this amount.
5.5 Payment fees: all banking charges are initiated by the purchaser, i.e. the Buyer.
5.6 Delivery/ shipping costs
In the case where the goods are shipped by OPHTAZON, an estimate for these transportation costs must be requested to OPHTAZON. The final destination and the retained Incoterm must be clearly identified.
Delivery costs are not included in the agreed price and these costs shall be invoiced by OPHTAZON in addition to the sales price. This service is optional.
OPHTAZON reserves the right to refuse to ship to certain destinations.
Should the transporter be selected by the Buyer, the Buyer shall be responsible for paying these costs.
A VAT deposit will be requested from the Purchaser to initiate the delivery process in the event that the Purchaser chooses its carrier. This VAT deposit
will be refunded after provision of the EX-A document (export document) by the Acquirer or the Acquirer’s carrier.
The bank fees for the repayment of this deposit will be borne by the Purchaser.
Delivery costs in mainland France are to be borne by the Buyer. An estimate must first be requested from OPHTAZON, in accordance with the services selected by the Client, except if the Advert clearly precises that the delivery is free in mainland France.
As the amount of the delivery costs may be modified by the carrier in the light of circumstances modifying the time limits for pick-up, delivery and/or
delivery, OPHTAZON will pass on to the Purchaser who undertakes to pay them, all transportation costs with the carrier’s proof.
OPHTAZON can in no case be liable or responsible for an increase in the cost of transport, decided by the carrier.
5.7 Installation fees, set-up, training and additional warranties
Should the Buyer require the equipment to be installed or set up by OPHTAZON in mainland France or outside mainland France, or that training be provided by OPHTAZON, an estimate must be requested beforehand.
These services are optional and OPHTAZON reserves the right to accept or refuse to perform such.
For any additional warranty requests (months or years), OPHTAZON will contact the Manufacturer for a quote. OPTHTAZON cannot be held liable in the event of the Manufacturer’s refusal if the obsolescence of the equipment does not allow this service to be offered to the Client.
5.8 Additional fees
Packaging costs are borne by OPHTAZON. In case of large shipments in mainland France or abroad or for specific and fragile equipments, packaging costs may be charged.
The Buyer is responsible for the payment of customs duties, insurance premiums or any other additional costs not expressly provided for herein.
5.9 Other services (removal, waste disposal, destruction)
Should the Advertiser-Vendor wish to dispose of unsold equipment, OPHTAZON can perform this service for a fee. This fee covers the removal of the machine, waste disposal and/or the destruction of the equipment.
The cost is : 250 € HT for consultation units, lasers and other bulky materials, 75€ HT, 50€ HT or 25€ HT depending on the size of the materials. The cost of this service will be subject to a preliminary estimate.
The Vendor may opt for a disposal service after a period of 12 months of immobilization of the equipment or choose a shorter period that will be specified in the specific conditions set out in the Mandate Agreement.
For material not stored in the premises of OPHTAZON, the transport costs will be borne by the Vendor, on accepted quotation of the carrier chosen by the Vendor.
A certificate of destruction will be issued to the Vendor.
5.10 Warehouse and storage costs
Should a Client-Vendor require that OPHTAZON store any equipment whilst the advert is online, this is possible in return for a storage fee of:
- 20 € per month for normal-sized equipment (refractometer, Fundus camera, OCT, tonometer, etc.)
- 50 € per month for extra-large equipment (e.g. refraction unit and other bulky equipment)
- Free for small equipment (to be approved by OPHTAZON).
A quote shall be provided beforehand and the storage fee deducted from the sales invoice.
The Advertiser-Vendor has the option to retrieve the equipment stored at OPHTAZON on the sole condition that the storage fee due has been settled.
No notice is required for the Advertiser-Vendor to recover this equipment if the 3 month exclusivity time is over.
If the equipment is still under exclusivity, the Vendor might recover it as soon as the fees invoice for costs and penalties is paid.
5.11 Return costs
By way of derogation from the provisions of article 1932, paragraph 1 of the French Civil Code, OPHTAZON is not required to return the Material deposited, the purpose of the deposit being its sale, destruction and/or recycling. However, the Vendor may request from OPHTAZON, the availability on the premises of OPHTAZON of all or part of the Equipments belonging to the Vendor, or their return. The cost of returning the Equipments remains in this case, at the expense of the Vendor. A quotation will be prepared beforehand by OPHTAZON.
5.12 Dismantling costs
If a disassembly service is required, a fee may be charged for the disassembly of consultation units requiring the intervention of at least 2 technicians and the rental of large-volume trucks. The costs will be assessed during the preliminary visit according to the situation of the office, accessibility and necessity/imperative of disassembly.
A separate quote is submitted to the customer in advance for acceptance and will be included in the sales mandate.
5.13 Financial evaluation costs
This service is charged 50 € HT per valued material, 300 € HT for less than 10 valued materials and 500 € HT for more than 10 materials. This sum is refundable by compensation with the cost of Adverts and/or commissions, only if the doctor decides to put on sale all his evaluated equipments on the platform OPHTAZON, when the Sales Mandate of the entire fleet of the evaluated equipment is signed.
ARTICLE 6 – TRANSFER OF OWNERSHIP AND TRANSFER OF RISKS
6.1 The Advertiser-Vendor retains ownership of the products named in the present document, with the exception of products directly offered by and thus belonging to the Manufacturer, up until the full payment thereof (principal and interest).
6.2 By way of derogation, should the Vendor require equipment to be stored on OPHTAZON’s premises, OPHTAZON shall assume liability for the risks associated with storing such.
Risks that may intrinsically arise from the machine itself (explosion, fire or any other disaster resulting from the stored equipment) remain the responsibility of the Vendor.
6.3 The risks of loss or damage shall be transferred to the Buyer as soon as payment is collected by OPHTAZON.
The Vendor certifies, by acceptance of the present TCSU, that they have insured the equipment up until the full payment of the sales price by the Buyer. OPHTAZON shall insure only the equipment that it holds.
OPHTAZON or its subcontractor, justify at any time, at the request of the Vendor, the purchase of liability insurance covering the damage caused to the goods handled and transported, persons on the Vendor’s premises and on the Vendor’s buildings as a result of handling operations.
6.4 The Buyer undertakes to appropriately insure the products ordered, at their own expense, up until reception of the delivery, without prejudice to the insurance related to transportation.
6.5 Transportation is insured either by OPHTAZON or by the Buyer, should the transporter be chosen by the Buyer.
For the abroad sales (outside mainland France):
If the equipment is shipped by OPHTAZON’s transporter, OPHTAZON shall assume responsibility in the case of possible dispute related to shipping.
If the equipment is shipped by the transporter chosen by the Buyer, the Buyer shall make the necessary reserves or pursue appropriate legal recourse vis-à-vis the transporter, and OPHTAZON cannot be held liable in any way. The risks are transferred to the Buyer and to their transporter as soon as the equipment is loaded.
For the mainland France sales:
• The material is delivered by OPHTAZON or a carrier of its choice for shipments that it considers to be safe.
• If the buyer expressly requests a delivery by carrier, then OPHTAZON cannot be held responsible in any way. The risks are transferred to the Purchaser upon full payment of the sale price and to the carrier upon loading of the equipment on the premises of OPHTAZON.
ARTICLE 7 – ACCEPTANCE OF ORDERS
OPHTAZON is obligated only after the express acceptance of the order by the Buyer by email or other written means, and by the confirmation of the product’s availability and its price, and by receipt of the full payment of the price by the Buyer. OPHTAZON is only bound by the commitments of its representatives or employees subject to written and signed confirmation from its legal representative.
When the order concerns several items listed on the OPHTAZON platform, acceptance is made for each product separately, without any obligation to deliver the whole order at once.
ARTICLE 8 – ORDER CANCELLATION
No order may be cancelled or refunded, in whole or in part, if the price has been paid in full, or if the order has already been delivered, or if the Vendor has already shipped the product to OPHTAZON or to the Buyer. In all these cases, the Buyer shall be liable for the full price of the order, as well as any additional costs incurred.
In the event of cancellation of the order by the Buyer that is not one of these aforementioned case, the Buyer shall be requested to pay compensation to OPHTAZON, of an amount equal to twenty per cent (20%) of the order price, as well as any banking fees that may have been charged to OPHTAZON.
In the event of Cancellation by the Vendor, while an order is in progress, in contravention of Articles 2.11 and 3.3 hereof, the Vendor shall be liable to OPHTAZON as compensation of 50% of the sale price agreed with the Purchaser and of the banking charges borne by OPHTAZON where appropriate.
OPHTAZON may cancel any pending order, without any costs at its expense other than the return of the sums collected in this regard, in the event that the technical control as provided for in article 9.1 hereof shows a defect preventing the proper functioning of the Equipment.
ARTICLE 9: TECHNICAL INSPECTION AND THE OPHTAZON GUARANTEE
9.1 This service is applicable only if the equipment is SOLD UNDER OPTION 2 as set out in section 2 hereof.
In the case of option 1, the material cannot be guaranteed by OPHTAZON the sale being carried out directly between the seller and the buyer and the material not being deposited at OPHTAZON nor controlled upstream by OPHTAZON.
Under Option 2, OPHTAZON offers a six-month warranty on the equipment that it has inspected itself or that has been inspected by a party authorised and mandated by OPHTAZON, and not sold by a professional Manufacturer on its platform.
This warranty is only valid for equipment manufactured less than eight years ago. It relates only to the check points included in the technical inspection report.
9.2 OPHTAZON shall ensure the technical inspection of the goods before shipment to the Buyer.
The technical inspection can be carried out at the Vendor’s place of business for equipment whose market value exceeds 5 000 €. For merchandise worth less than 5 000 €, the technical inspection shall take place on OPHTAZON’s premises.
The technical inspection shall be carried out with reference to the technical requirements contained in the manual provided by the machine’s Manufacturer.
If the machine satisfactorily conforms to the technical requirements, a Certificate of Conformity for such shall be issued by OPHTAZON and signed by the Vendor.
If the conformity inspection proves unsatisfactory, a report on the condition of the equipment shall be issued, mentioning the control points and the
imperfections detected. This report is signed by OPHTAZON and the Vendor, and is brought to the attention of the Buyer.
The Buyer must indicate within 72 hours whether they intend to purchase the machine at a reduced price or to abandon the sale.
If the conformity inspection shows a defect preventing the proper functioning of the equipment, a report mentioning the results of the control and the reasons preventing the sale, is issued by OPHTAZON. This report is brought to the attention of the Vendor and the Buyer;
For some equipments, OPHTAZON shall request from the Vendor a Certificate of Revision of less than one year. This revision must have been carried out by the manufacturer or authorized distributor in the country where the equipment is sold.
9.3 The six-month warranty period shall begin on the date the paid invoice is issued by OPHTAZON.
This guarantee shall apply only to the control points set out in the technical control report and does not apply to fibre optics, ultrasound probes or any other spare and wear parts.
This warranty is only valid when the equipment is used by the Buyer in accordance with the Manufacturer’s recommendations and in the climatic conditions indorsed by the Manufacturer that will not compromise the equipment’s technical efficiency.
The Buyer is liable for any costs of returning the equipment during the warranty period.
9.4 This warranty is non-exclusive of the Manufacturer’s warranty, if still valid. In this case, the Buyer shall invoke the Manufacturer’s warranty.
If no claim is made under the guarantee in the month following the discovery of the defect, OPHTAZON is subrogated to the rights of the Buyer to take action against the Manufacturer.
ARTICLE 10 – TRANSPORTATION-DELIVERY-INSTALLATION-TRAINING
10.1 The Buyer is free to use the transporter of their choice. OPHTAZON will inform the Buyer when the parcel is available for removal from its premises.
A request for an estimate of transport costs must be made to OPHTAZON before the sale is concluded, should the Buyer not wish to select the transporter. The request for a transport estimate can also be made after payment of the material on the website or by bank transfer. Excessive transport costs can in no way be a reason for order cancellation. The Purchaser may choose its own carrier.
10.2 If OPHTAZON uses its own transporter, goods shall be shipped from OPHTAZON to the Buyer by the OPHTAZON transporter within the period stipulated by OPHTAZON upon acceptance of the order.
If the Buyer selects the transporter, delivery is effective upon reception of the product by the Buyer or when the order becomes available at OPHTAZON’s premises.
In the event that the Buyer selects another transporter, the carrier authorised by the Buyer must
collect all the products ordered from OPHTAZON’s
warehouses within eight (8) days of their availability. After this period, a fixed fee of 50 € excluding
VAT per parcel and per month shall be charged without
prejudice to other requests OPHTAZON may make in this regard. Fixed fee of 250 € shall be charged per
palet waiting departure, if this delay is not
attributable to OPHTAZON.
It is specified that OPHTAZON cannot be held liable for any damage, deterioration, loss or theft that may occur with respect to the products, which must be insured by the Buyer in accordance with Article 6 herein.
10.3 OPHTAZON shall under no circumstances be held liable in the event of delay or suspension of the delivery that can be attributed to the Buyer.
10.4 OPHTAZON shall not ensure the delivery or installation of products listed for sale on its platform(s) by a professional Manufacturer unless OPHTAZON has given its prior consent.
Installation of the machine by the Buyer
If the equipment is sold by a non-Manufacturer-Vendor: OPHTAZON undertakes to provide the Client with all useful explanations and details in order to install the machine delivered, within the limits of the competences of OPHTAZON.
If the equipment is sold by a Manufacturer-Vendor: the Manufacturer’s Terms and Conditions alone are applicable.
Installation of the equipment by OPHTAZON
This service is optional. A request for an estimate including the travel expenses of one or more technicians must be submitted before the service is performed.
In the case where the request is submitted after delivery, the warranty date of the equipment will always begin on the OPHTAZON invoice date, and not on the installation date. The service will be paid in advance.
10.7 Training on how to use the equipment ordered via OPHTAZON This service is optional. A request for an estimate including the travel expenses of one or more technicians and training costs must be submitted before the service is provided. The service shall be paid in advance.
ARTICLE 11 – DELIVERY DEADLINES
11.1 Delivery deadlines begin to run from the moment the order is accepted by OPHTAZON. Deadlines are given for indicative purposes only and are mentioned on the OPHTAZON invoice. Exceeding these deadlines cannot lead to any compensation, penalties or damages, nor to cancellation of orders in progress.
11.2 War, strikes, interruption of shipping, epidemics or pandemics that reduce or interrupt transportation of any kind or cause the administrative closure of OPHTAZON, the shortage of equipment, natural disasters and cases of force majeure, as retained by the French courts, will suspend delivery deadlines for a duration at least equal to that of those listed events.
OPHTAZON can in no case be held liable in the event of a delay in or suspension of the delivery that can be attributed to the Buyer, or in those type of aforementioned events.
In the event where the Buyer selects the transporter, delivery shall be made via notification of the
availability of the products on OPHTAZON’s or the Vendor’s premises.
It is the responsibility of the Buyer to organise transportation. Goods are transported at the Buyer’s risk.
In the event where the Buyer opts to use OPHTAZON’s transporter, delivery is effective when the Buyer or any other recipient identified and designated by the Buyer receives the product.
Similarly, in the event of special requests by the Buyer concerning packaging or shipping conditions of the products ordered, and duly accepted in writing by the Supplier, the related costs shall be invoiced additionally and separately.
ARTICLE 12– UNFORESEEN CIRCUMSTANCES
Insofar as each sale constitutes a single contract and that the commercial relationship is not, by nature, successive or repetitive, the Vendor and the Client expressly reject the legal regime of unforeseen circumstances provided for in Article 1195 of the French Civil Code, and each Party renounces to invoke the provisions of Article 1195 of the French Civil Code and the regime of unforeseen circumstances provided for therein, consenting to assume their obligations even if the contractual balance is upset by the circumstances that were unforeseeable when the sale was concluded, even if its performance proves excessively onerous, and to bear all the economic and financial consequences.
ARTICLE 13 – RECEPTION
13.1 The Buyer or their agent must verify the conformity of the products delivered upon
Prior to signing the delivery note, they must specify on such any reservations with regard to anomalies concerning the delivery (damaged, missing or open parcels, packages without a guarantee strip, error, damaged goods, etc.).
In the absence of reservations expressly mentioned by the Buyer at the time of delivery, the products delivered by OPHTAZON shall be deemed to conform in quantity and quality to the order.
The Buyer has three (3) days from the date of delivery and reception of the products ordered to inform OPHTAZON of any reservations by registered letter with acknowledgement of receipt. No claim can be validly accepted in the event of non-compliance with these procedures.
Claims must be supported by tangible elements such as the reservation filed with the transporter, photographs illustrating the damage or any other proof justifying the claim.
13.2 The quality description of the products is defined solely by the technical specifications, with the exception of any other document of any nature watsoever.
13.3 No claim with regard to the non-conformity of the delivery shall be accepted if this claim reaches OPHTAZON after three (3) days following the reception of the products.
The machine shall be specifically evaluated by OPHTAZON. It will be repaired if repairable, and returned at OPHTAZON’s expense.
In the event the machine cannot be repaired, and OPHTAZON’s fault is demonstrated, the equipment shall be refunded.
Any claim formulated without respecting the afore-mentioned conditions will be refused and the responsibility of the Buyer fully engaged.
13.4 In the case of an apparent defect or the non-compliance of the products duly
proved by the Buyer
and acknowledged by OPHTAZON as one of the points validated during the technical inspection, OPHTAZON
shall reimburse the Buyer as soon as possible and at its own expense, an amount equal to the price of
the products returned with two (2) months following the date of reception of the parcel by OPHTAZON. In
this case, the Buyer must return the product to OPHTAZON at their own expense.
OPHTAZON will benefit from an action against the Vendor under the conditions of Article 14 In the case of an apparent defect or the non-compliance of the products duly proved by the Buyer and acknowledged by OPHTAZON but not as one of the points validated during OPHTAZON’s technical inspection, the Buyer shall have direct recourse against the Advertiser-Vendor of the product and/or the Manufacturer of the product without, in this case, being able to seek the liability of OPHTAZON.
ARTICLE 14 – HIDDEN DEFECTS
14.1 When the item is listed for sale by a non-Manufacturing Vendor:
- Under Option 1 of Article 2: OPHTAZON is not bound by any warranty. The advertiser Vendor alone supports the possible guarantee of hidden defects. By exception to article 1648 of the French Civil Code, in the case of sale between medical professionals, the Vendor of the equipment is not bound by the guarantee of hidden defects not apparent in the report of technical control carried out by OPHTAZON and not apparent at the delivery, for a period of one month from the date of delivery.
- Under Option 2 of Article 2: The contractual guarantee provided for in Article 9 of the present TCSU concerns only the points controlled by OPHTAZON.
As an exception to Article 1648 of the French Civil Code, and with reference to sales between medical professionals, the machine’s Vendor is only liable for hidden defects that were not declared in the technical inspection report carried out by OPHTAZON and not apparent on delivery for a period of one (1) month from the date of delivery.
If the defects concern the inspection points mentioned in the technical inspection carried out by OPHTAZON, the guarantee is limited to the contractual six (6) month warranty period (if the equipment is less than eight years old, the date of manufacture serving as a reference).
It is up to the Buyer to provide proof of the reality of the defects or anomalies noted. The Buyer shall give OPHTAZON every opportunity to investigate the defects and remedy such, if need be.
In the event that goods be returned to OPHTAZON, the Vendor or the Manufacturer, the Buyer must at their own expense return the products to OPHTAZON, the Vendor or the Manufacturer, as the case may be.
In the case of a hidden defect duly acknowledged by OPHTAZON and recognised by the Vendor, the Buyer shall be given the option to obtain a credit note for use against a similar machine or to be reimbursed, to the exclusion of all other compensation, whatever the nature.
When the item is listed for sale on the OPHTAZON platform by a Vendor-Manufacturer:
The non-compliance or the presence of hidden defects for a product sold directly by its Manufacturer via
the OPHTAZON platform can in no way engage the liability of OPHTAZON.
When the Vendor is a Manufacturer, it is the Vendor-Manufacturer’s responsibility to ensure the Buyer accepts their own General Terms and Conditions.
Only the Manufacturer’s warranty conditions and remedies are applicable. In this case, the Buyer has direct recourse against the Manufacturer under the latter’s own conditions.
ARTICLE 15 – LIABILITY
15.1 OPHTAZON shall inform the Buyer, on request only, of the products’ main characteristics and notably the conditions of use. The Buyer, as a professional, acknowledges that they are fully able to gauge the qualities of the equipment purchased and that they are familiar with the Manufacturer’s recommendations and descriptions.
15.2 In no event shall OPHTAZON be liable for any damage whatsoever, caused in particular by an abnormal use of the products.
Similarly, OPHTAZON shall not be held liable for any damage caused by fault, negligence, omission, malfunction or false declaration of the Buyer or an agent thereof.
15.3 Neither the Vendor nor OPHTAZON shall be held liable for the non-performance of the sales contract should a force majeure event occur, the meaning of which is outlined in Article 1218 of the French Civil Code. In particular, such events inlude but are not restricted to strikes, social unrest, riots, epidemics or pandemics that reduce or interrupt transportation of any kind or cause the administrative closure of OPHTAZON , floods, accidents, fires, shortage of equipment, fault, negligence or omission of a third party over whom neither the Vendor nor OPHTAZON has any power of control and supervision.
By explicit agreement, the following constitute a case of force majeure: war, strikes, interruption of shipping, shortage of equipment and raw materials, natural disasters, labour disputes, mobilisation, requisition, embargos, prohibition of currency transfer, insurrection, general lack of supplies, restrictions on the use of energy and all cases of force majeure as retained by the French Courts. The Party noting the event must immediately inform the other Party of its inability to perform its service and justify this. The suspension of obligations can in no case be a cause of liability for non-performance of the obligation in question, nor induce the payment of damages or penalties for delay.
Performance of the obligation shall be suspended for the duration of force majeure or one of the events above mentioned, if it is temporary and does not exceed one month (1). Consequently, as soon as the cause of the suspension of the Parties’ mutual obligations has disappeared, the Parties shall make every effort to resume normal performance of their contractual obligations as soon as possible. To this effect, the prevented Party shall notify the other Party of the resumption of its obligation by registered letter with acknowledgement of receipt, or by any extrajudicial document.
For the duration of the situation, the Parties agree that any costs incurred by such will be divided in half, except the carrier costs that shall always borne to the Buyer.
15.4 In no event shall OPHTAZON be liable for indirect damages such as loss of earnings, operating losses, loss of profit, loss of opportunity, damage or costs that may arise from the purchase, installation or use of products listed for sale by an Advertiser.
15.5 The non-conformity or the presence of hidden defects for a product sold directly by its Manufacturer via the OPHTAZON platform can in no way engage the responsibility of OPHTAZON.
Subject to the conditions set out in Article 9 hereof, the Buyer declares that they will waive all claims against OPHTAZON on the grounds of design or manufacturing defects, thereby rendering them personally responsible for any claims against the Manufacturer of the equipment.
15.6 As from the delivery of the machine to the Buyer, OPHTAZON cannot be held liable under any circumstances for damages or accidents directly or indirectly related to a product’s use or tolerance of use.
15.7 The Buyer undertakes to ensure that the site is laid out in accordance with the technical manual of the machine listed online or distributed by the Manufacturer, relating to network connections, electrical and telephone connections, air conditioning, floor coverings and technical insulation.
15.8 The Buyer accepts to use the equipment sold in accordance with the Manufacturer’s recommendations, the user manual, operating and maintenance instructions, and any OPHTAZON recommendations following the technical inspection.
If the equipment is moved during the contractual guarantee period, the Buyer accepts to inform OPHTAZON at least 15 (fifteen) days in advance in orderto enable the latter to provide all useful instructions.
In the event of a breakdown during the contractual guarantee, the Buyer must record such in a notebook held at OPHTAZON’s disposal which will indicate the nature of maintenance operations.
15.9 The Vendor-Advertiser certifies that they have full and sole ownership of the equipment they offer for sale on the OPHTAZON platform. As a result, they retain full legal responsibility as a Vendor.
ARTICLE 16 – ENFORCED PERFORMANCE
By way of derogation from the provisions of Article 1221 of the French Civil Code, the Parties agree that in the event of failure by one or other of the Parties to fulfil its obligations, the Party which is the victim of the default shall not be entitled to request enforcement in kind.
ARTICLE 17 – DEFENCE OF NON-PERFORMANCE
It is recalled that pursuant to Article 1219 of the French Civil Code, each Party may refuse to perform its contractual duty, even though such is due, if the other Party does not fulfil its obligation and if this non-performance is sufficiently serious, i.e., liable to jeopardise the continuation of the contract or fundamentally upset its economic balance. The suspension of performance shall take effect immediately upon receipt by the defaulting Party of the notice of default sent to that effect by the Party victim of the default indicating the intention to apply defence of non-performance until the defaulting Party has remedied the default, served by registered letter with acknowledgement of receipt or on any other durable written medium providing proof of sending, within one month.
Defence of non-performance may also be used as a preventive measure, in accordance with the provisions of Article 1220 of the French Civil Code, if it is clear that one of the Parties will not fulfil its obligations when due and that the consequences of such non-performance are sufficiently serious for the Party that is the victim of the default.
This right shall be exercised at the risk and peril of the initiating Party.
The suspension of performance shall take effect immediately the Party allegedly in default receives notification of the intention to apply preventive defence of non-performance and up until the Party allegedly in default has performed the obligation for which a future breach is manifest. Notification is served by registered letter with acknowledgement of receipt or on any other durable written medium providing proof of sending.
ARTICLE 18 – INTELLECTUAL PROPERTY
18.1 All texts, comments, works, illustrations, drawings, plans, production files and images reproduced on OPHTAZON documents, as well as the said documents, and in particular the overall presentation of catalogues and their distinguishing elements, are the full and entire property of OPHTAZON, unless otherwise stated, and are therefore protected in accordance with the French Intellectual Property Code.
18.2 Any use not previously authorised in writing by OPHTAZON constitutes infringement and is punishable under intellectual property law.
18.3 OPHTAZON shall in no event be held liable for any use of the communication materials of the equipment offered for sale by Advertisers that fails to comply with the rights of third parties.
18.4 The Vendor guarantees OPHTAZON against any action, claim or opposition made by a third party on the basis of an intellectual property and/or copyright right of which they are the owner, as soon as the said third party provides proof that such a right has been applied.
The Vendor guarantees that at the date of publication of the advert, there are no intellectual property claims of which they are aware.
18.5 OPHTAZON guarantees the Buyer against any claim that a third party may make on the basis of an intellectual property and/or copyright right of which they are the owner, as soon as the said third party provides proof that such a right has been applied.
18.6 In the event that the product in the state in which it is sold is the subject of such a claim, OPHTAZON should, at its own expense and at its sole option: either obtain for the company(ies) concerned the right to use the product in question, or modify the product so that it is no longer in breach if such modification is nevertheless possible, or procure another product, or retract the product and credit the Buyer for the price paid upon purchase.
If this is not made possible within a reasonable time, the Buyer shall be entitled to withdraw or to request a price reduction.
Compliance with the afore-mentioned provisions is subject to the condition that the Buyer has immediately notified OPHTAZON in writing of the claims of the third party, without, however, this constituting an acknowledgement of the infringement.
18.7 The Buyer’s claims shall be inadmissible should the Buyer be at the origin of the infringement of the intellectual property right.
18.8 OPHTAZON shall in no event be liable for any use of its products by the Buyer that fails to comply with the rights of third parties.
ARTICLE 19 – CONFIDENTIALITY
In general, the Parties may not, without the written consent of the Party concerned, communicate or transfer documents, knowledge and information, tools, samples, models, sketches, drawings, forms, manuscripts and other technical documents, whatever the medium, to third parties or use such information for purposes other than the subject of the contract.
This provision shall not apply to information which, at the time of receipt, was already known to the receiving Party or which has been communicated to it by a third party.
ARTICLE 20 – DATA PROTECTION
OPHTAZON agrees to respect and ensure its subcontractors’ compliance with all the provisions of the Act N° 78-17 of 6 January 1978 as amended by the European Regulation 2016/679 of 27 April 2016 on the protection of personal data.
The Advertiser, whether a natural person, Vendor or Buyer, declares that they accept the collection, processing and storage of their personal data, insofar as these data are necessary for the recording and publication of adverts on OPHTAZON’s online platform and for the performance of the contract with OPHTAZON.
20.1 Collection of personal data
In order for the OPHTAZON platform’s services to be implemented, the following personal data are collected:
- First and last names, e-mail address and postal address, when creating a user account.
- First and last names (in particular), connection data and location data when the user connects to the platform.
- The use of the services provided on the platform enables the creation of a profile, which may include the user’s full name, postal address, telephone number and email address.
- The platform’s objective is to connect advertisers. Given this, the information featuring in adverts will be processed by OPHTAZON.
Personal data will be conserved until the user account is deleted. Should OPHTAZON cease to legally exist following an amicable or legal liquidation, the Client will be notified within 90 (ninety) days of the deletion of their advert(s) and personal data.
With a view to possible legal action, certain information may be retained for up to five (5) years following the deletion of the user account.
20.2. Use of personal data
Personal data collected from users are utilised for making the platform’s services available, improving these services and maintaining a secure environment. More specifically, the uses are as follows:
- Access and use of the platform by the user.
- Operation management and platform optimisation.
- Verification, identification and authentication of data transmitted by the user.
- Offering the user the possibility to communicate with other users of the platform.
- Implementation of user support.
- Customisation of services by displaying ads based on the user’s browsing history and preferences.
- Prevention and detection of fraud, malware, and security incident management.
- Management of possible disputes with users.
- Sending of commercial and advertising information, according to the user’s preferences.
20.3 Sharing personal data with third parties
Personal data may be shared with third parties in the following cases:
- When the platform uses service providers to provide user support and advertising. These providers have limited access to the user’s data in the context of the performance of these services, and have a contractual obligation to use data in accordance with the provisions of the applicable privacy regulations.
- If required by law, the platform may transfer data to pursue claims against the platform and to comply with administrative and judicial procedures.
- If the platform is involved in a merger, acquisition, asset disposal or receivership procedure, it may sell or share all or part of its assets, including personal data. In this case, Advertisers who have created their account will be informed before their personal data are transferred to a third party.
20.4 Security and confidentiality
The platform implements organisational, technical, software and physical digital security measures to protect personal data against alterations, destruction and unauthorised access. However, it should be noted that the Internet is not a completely secure environment and as such the platform cannot guarantee the security of information transmission or storage over the Internet network.
20.5 Implementation of users’ rights
Pursuant to the regulations applicable to personal data, users have the following rights: - They can update or delete their data by logging in and configuring their account settings.
- They can delete their account, by writing to the following e-mail address: email@example.com.
Please note that information shared with other users, such as the adverts, may remain visible to the public on the platform, even after the account has been deleted.
- By writing to the following email address: firstname.lastname@example.org and by providing proof of identity, OPHTAZON users who are natural persons may:
o exercise their right of access to find out which of their personal data are used
o if the personal data held by the platform are inaccurate, request that the information be updated
o request the deletion of their personal data, in accordance with the applicable data protection laws.
The French controlling body with regard to these obligations is the Commission Nationale Informatique et Libertés, located at 3 place de Fontenoy – TSA 80715- 75335 Paris Cedex 07, to whom the person concerned has the right to make a complaint.
20.6 Evolution of the clause
ARTICLE 21 – NOTIFICATIONS
Notifications in relation to the present TCSU shall be validly made by registered letter with acknowledgement of receipt sent to the address indicated by the Advertiser when creating or updating their account.
The Advertiser must notify OPHTAZON of any change of address.
Notifications made by registered letter with acknowledgement of receipt shall be presumed to have been made on the date of their first presentation to the address of the addressee.
ARTICLE 22 – DISPUTES
22.1 The present TCSU are exclusively governed by French law.
22.2 In the event of any dispute of any nature, such as disputes relating to these TCSU, and to the formation or execution of an order, only the Courts located within the jurisdiction of OPHTAZON’s headquarters shall be considered competent, whatever the conditions of sale and settlement, even in the event of a warranty claim or multiple plaintiffs or defendants.