General terms and conditions of sale – 2023/03/07

These General Terms and Conditions of Sale apply to all services entrusted to OLYTHE, a company registered in the Tours Trade and Companies Register under number 791 392 236, whose contact details appear in the legal notice on the Website, hereinafter referred to as “OLYTHE”, by any individual or legal entity, hereinafter referred to as the “Customer”.

OLYTHE and the Customer are hereinafter referred to individually as the “Party” or collectively as the “Parties”.

ARTICLE 1. DEFINITIONS

The following terms whether used in the singular or plural herein shall always have the following definition:

  • Order: designates any act of purchase made by the Customer to OLYTHE via a direct order, specifying the nature, price and quantity of products, services and solutions desired;
  • Contract: refers to these General Terms and Conditions;
  • Personal Data: Data which, within the meaning of the French Data Protection Act of January 6, 1978 and Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 (hereinafter “the Applicable Regulation”),
  • Product: designates the device as marketed by OLYTHE to the Customer;
  • Solution: a solution developed by OLYTHE at the request of a Customer, as defined in a specification or commercial offer.
  • Services: services associated with the provision of the Solution, in particular development, training, hosting, support and any service expressly mentioned in the Commercial Proposal;
  • Results: All developments, deliverables, documents, products, data, information, Solution(s), related to the execution of services performed by OLYTHE at the Customer’s request or on the Customer’s orders, including all knowledge, know-how and prior rights incorporated within these Results.

ARTICLE 2. PURPOSE

The purpose of these GTS is to define the legal and financial conditions under which :

  • The Customer orders one or more Products from OLYTHE ;
  • OLYTHE delivers the Product(s) to the Customer

The Contract takes precedence over any conditions of purchase or other documents issued by the Customer.

The GCS are brought to the attention of these customers with the offer prior to any Order validation. These GCS cancel and replace any previous document and any exchange between the Parties prior to the validation of the Order.

OLYTHE reserves the right to modify its GTC at any time. In the event of modification of the GTC, the applicable GTC are those in force at the date of the Order.

ARTICLE 3. DESCRIPTION OF PRODUCTS AND SOLUTION

OLYTHE sells Products designed by OLYTHE.

The technical specifications of the Products are set out on the OLYTHE website at www.OLYTHE.io, together with the essential characteristics, or in an attached document.

OLYTHE pays particular attention to the presentation of the Products offered on the Website. Due to the color settings of each computer, the colors of the products displayed in the photos on the Website may differ slightly from their true colors. OLYTHE cannot be held responsible for such slight or insubstantial differences. Products are offered and delivered while stocks last.

OLYTHE develops specific solutions at the request of its customers. These solutions can be hardware and/or software.

OLYTHE will provide the customer with a Solution for analyzing one or more gases in exhaled air or a similar environment. This Solution will consist of an analyzer based on OLYTHE’s technologies and experience in this field, and software to manage all the sensor components and communicate gas concentration results to the customer.

The functionalities of the Solution are specified in the Documentation, i.e. the user guides provided by OLYTHE to the Customer.

ARTICLE 4. CONTRACT FORMATION – ORDER

  • Placing an order

Orders may be placed by the Customer by returning the order form attached to the offer which will have been either solicited directly by the Customer or issued by OLYTHE as part of a direct prospecting or prospecting campaign.

  • Direct orders (by the Customer or following an offer from OLYTHE)

Each offer or order form will include the GTCS as an appendix.

Signing and dating the order form constitutes an Order and acceptance by the Customer of the GCS in force on the date of the Order.

The purchase order resulting from an offer sent by OLYTHE must be returned, signed and dated, before the expiry of the period indicated on the offer. Failing this, the offer will lapse and OLYTHE will have no obligation to honor the Order, unless expressly confirmed in writing.

Orders placed following a prior offer must comply in all respects with the offer. In the event of an Order not conforming to the offer, OLYTHE reserves the right not to apply the special conditions of the offer.

Any Order received directly is final only when the signed and dated order form is confirmed in writing by OLYTHE via e-mail.

ARTICLE 5. PRICES

The price of the Product is displayed on the Website or in commercial offers distributed by OLYTHE or its authorized partners.

OLYTHE reserves the right to modify prices at any time until the Order is placed.

The minimum order amount is €30 (thirty euros). OLYTHE reserves the right to refuse any Order below this amount.

Prices are displayed in euros and exclusive of tax. Consequently, they will be increased by the VAT rate and transport costs applicable on the day of the Order.

ARTICLE 6. PAYMENT TERMS

For direct Orders, unless otherwise expressly agreed, payment shall be made by cheque or bank transfer to the account opened in the name of OLYTHE SAS (IBAN & BIC shown on the Order form). Payment will be due on the settlement date agreed by the Parties in the Order.

Any claims do not suspend the obligation to pay. Set-off of claims is prohibited.

In the event that the Parties have agreed to payment upon receipt of the Products or according to other terms not involving payment before shipment, any late payment will entail the application of a fixed recovery indemnity, the amount of which is set by decree, as well as daily late payment penalties corresponding to the rate applied by the European Central Bank during its last refinancing operation, increased by ten (10) points, calculated on the amount, inclusive of tax, of the balance of the price appearing in the offer or on any invoice. The aforementioned sums will be automatically acquired by OLYTHE, without any formality or prior formal notice, and will be applicable without prejudice to any other action that OLYTHE may be entitled to take against the CLIENT in this respect.

Payment of an invoice after the expiry of the payment deadline will result in the application of a fixed indemnity to compensate for collection costs. The amount of this indemnity has been set at €40. If the collection costs actually incurred are higher than this flat-rate amount, the customer may be asked to pay additional compensation, subject to justification.

In the event of non-payment or if there is justified doubt as to the payment of the price, OLYTHE reserves the right to demand payment in advance on first demand or the provision of guarantees. If such payment is not made or if such guarantees are not provided, OLYTHE reserves the right to consider the order cancelled immediately and by operation of law, without prior formal notice or legal action, and subject to all our rights to damages.

ARTICLE 7. RETENTION OF TITLE CLAUSE

In the event that the Parties have agreed on a payment method which does not involve payment before dispatch, the transfer of ownership of the Products is subject to full payment of the price by the Customer, without prejudice to the transfer of risks to the Customer upon Delivery as defined in article 8. Upon first request, the Customer must prove that he has taken out adequate insurance cover. In the event of non-payment within the stipulated period, OLYTHE reserves the right to take back the Products delivered and unilaterally cancel the order, without prior notification. OLYTHE may demand the return of the Products at the Customer’s expense and risk.

ARTICLE 8. DISPATCH – DELIVERY TIMES – TRANSPORT

The Customer undertakes to provide OLYTHE with a correct delivery address. In no event will OLYTHE be liable for any failure to deliver due to the Customer providing an incorrect delivery address.

Unless expressly agreed otherwise between the Parties and included in the Order, the day of delivery is the day on which the Products leave OLYTHE’s warehouse or when they are ready for shipment and held at the Customer’s disposal in Europe.

Shipment is always at the Customer’s risk, even in the case of carriage-paid delivery. Products are deemed to be sold “ex works”, even if the price is quoted carriage paid, the expression “carriage paid” indicating only that OLYTHE bears the cost of transport, but not the risk. The transfer of risks to the Customer takes place on the date the Products are made available (notwithstanding the reservation of title clause).

Delivery times are given as an indication only and may depend in particular on manufacturing times when current orders exceed available stocks. Orders are recorded as they are received and are fulfilled according to OLYTHE’s possibilities and product availability.

ARTICLE 9. RECEPTION, RESERVATIONS AND NON-CONFORMITY

The customer is responsible for verifying the apparent condition of the products upon delivery. In the absence of express reservations by the Customer at the time of delivery, the products delivered by OLYTHE will be deemed to conform to the order in quantity and quality.

Reservations are only admissible if they are formulated by registered mail with acknowledgement of receipt within three (3) working days following receipt of the Products by the Customer from the carrier and duly confirmed to OLYTHE, and accompanied by all supporting documents: samples, packaging labels, etc. In any case, the reservations formulated by the Customer must be precise and detailed.

Failing this, delivery is deemed to have been made without reservation.

In any event, any return will be subject to the prior written agreement of OLYTHE and the cost of return will be borne by the Customer. If OLYTHE confirms the non-conformity of the Products, OLYTHE will replace, as soon as possible and at its own expense, the Products delivered whose non-conformity has been duly proven by the Customer and approved by OLYTHE. In the absence of replacement, OLYTHE will reimburse the Customer.

OLYTHE’s approval or rejection will be communicated to the Customer in writing and determined according to the level of detail of the reservations and the analysis of OLYTHE’s technical services.

Product returns accepted by OLYTHE can only be replaced (or refunded) if the Products are returned in their original condition, unused and after verification and acceptance by OLYTHE’s after-sales service.

ARTICLE 10. CALIBRATION

To ensure that your product continues to perform at its best, we recommend that you calibrate it at least once a year.

At the Customer’s request, OLYTHE will calibrate the Product in accordance with the financial conditions indicated on the quotation or on the website.

Calibration services are not covered by the warranty and must always be quoted.

Nevertheless, should the Product returned for calibration be defective, OLYTHE will offer to replace it if the warranty is applicable. Failing this, OLYTHE will offer to replace the Product at the rates in force on the day of this proposal.

Once the calibration quote has been validated by the customer, the latter ships the product to be calibrated at his own expense.

Once the calibration has been carried out, OLYTHE will return the Product to the Customer at its own expense.

ARTICLE 11. GUARANTEES

Products are guaranteed for a period of one (1) year from the date of delivery.

The warranty covers all material and manufacturing defects. Interventions under the warranty do not extend the warranty period.

OLYTHE alone is authorized to carry out disassembly, calibration, maintenance, overhaul and repair operations on the Product. In this respect, only OLYTHE can supply original spare parts, accessories and consumables. Failing this, the warranty in this clause shall no longer apply.

Under this warranty, OLYTHE’s only obligation will be, at its option, the free replacement or repair of the Product or component recognized as defective by its services, unless this method of compensation proves impossible or disproportionate. In order to benefit from the warranty, all products must first be submitted to OLYTHE’s after-sales service, whose agreement is essential for any replacement or repair. Any shipping costs will be borne by the Customer, who will not be entitled to any compensation in the event of immobilization of the product due to the application of the warranty.

ARTICLE 12. INSURANCE

Each of the Parties certifies that it is insured for all the obligations and consequences of the present Contract with a company known to be solvent. Each Party undertakes to provide a certificate of insurance on first request.

ARTICLE 13. RESPONSIBILITIES

OLYTHE will not be liable for any indirect or consequential damages suffered by the Customer. OLYTHE’s liability is limited, all causes considered, to the contractual price paid by the Customer for the Product which caused the damage.

In any event, OLYTHE shall not be liable for damage resulting from improper use of the Product, nor for deterioration resulting from improper handling, faulty storage or use in unfavorable or unsuitable physical or chemical conditions.

ARTICLE 14. FORCE MAJEURE

OLYTHE shall not be liable to the Customer for the non-performance or delay in the performance of any obligation under this Agreement due to force majeure as defined below.

In the event of a force majeure event, the obligations of the present Contract are suspended. If the case of force majeure continues for more than one (1) month, the present terms and conditions may be terminated by operation of law under the conditions laid down in articles 1351 and 1351-1 of the French Civil Code.

In particular, acts of God or force majeure, or events arising from economic circumstances (in particular war, civil unrest, epidemics, interruptions or disruptions to transport or postal services, industrial disputes, atmospheric catastrophes and natural disasters, major incidents affecting suppliers or subcontractors, legal or governmental measures, etc.) which may cause total or partial interruption of OLYTHE’s business, shall entitle OLYTHE not only to delay delivery, but also to cancel all or part of the Order, legal or governmental measures, etc.) likely to cause a total or partial interruption of OLYTHE’s activity, open the right not only to delay delivery, but also to cancel all or part of the Order, without the Customer being able to claim any compensation as a result, nor to refuse partial execution.

ARTICLE 15. INTELLECTUAL PROPERTY

These General Terms and Conditions of Sale may not be interpreted as implying any transfer or license of OLYTHE’s intellectual property rights to the Customer.

15.1 Ownership and licensing

The Solution, including its source codes and architecture, the Services, all the content present on the software and published by OLYTHE, the design of the analyzer as well as the names, signs and logos used to designate the Solution and its elements, the Services, the Results, the products sold by OLYTHE, are protected by intellectual property rights (such as in particular all copyrights, patent rights, trademark rights, design rights, database producers’ rights, and any other existing or future French or international intellectual property rights), know-how, prior knowledge, confidential information and belong to OLYTHE or to third parties having authorized OLYTHE to use them.

Thus, unless otherwise expressly agreed with the Customer, the rights protecting the Solution, the Services, the products sold by OLYTHE and the Results of all studies and developments requested from OLYTHE by the Customer remain the exclusive property of OLYTHE.

Under no circumstances does this Contract entail any transfer or license of intellectual property rights to the Customer.

The Customer is only authorized to make personal use of the products, Solutions and/or Results in accordance with their intended purpose. In this respect, the Customer may not reproduce, adapt, modify, distribute or transfer all or part of the Results without the express prior consent of OLYTHE.

15.2 Restrictions on use

In particular, OLYTHE prohibits any Employee or Customer, without its written authorization, from :

– Make any copy whatsoever of all or part of the software solutions making up the Solution (with the exception of legally authorized backup copies of software);

– Reproduce permanently or temporarily the Solution, in whole or in part, by any means and in any form, including loading, displaying, executing or storing software;

– Reverse engineer, decompile or disassemble the analyzer, computer program(s) and software solution(s);

– Modify, alter, adapt or make any change whatsoever to the presentation and content of the Solution, computer program(s) and software solution(s), trademarks, trade names, logos etc. affixed to the Solution, its presentation, or not to remove the identification and ownership of the Application, including the names of contributors;

– Translate, adapt, arrange or modify all or part of the Solution, export it, merge it with other computer applications;

– Delete or alter, as they may appear on the presentations or in the content of the Solution, computer program(s) and software solution(s);

– Sell or Rent the Solution without prior agreement from OLYTHE ;

– Publish, except with the prior written consent of OLYTHE, any performance or evaluation test or analysis relating to the Solution.

OLYTHE reserves the right to support, maintain and update the Solution and the Products, in accordance with article L122-6-1 of the French Intellectual Property Code.

ARTICLE 16. PERSONAL DATA

The provisions relating to the collection and processing of the Customer’s personal data in connection with the Order are detailed in the privacy policy available on the OLYTHE website.

ARTICLE 17. NOTIFICATIONS

Exchanges between the parties may take place by any means, in particular by e-mail.

A hard copy of an e-mail is a valid proof of the content of the exchange.

ARTICLE 18. MISCELLANEOUS PROVISIONS

  • Tolerance

It is formally agreed that any tolerance or waiver by one of the Parties, in the application of all or part of the undertakings provided for in this Contract, whatever the frequency and duration thereof, shall not constitute a modification of this Contract, nor generate any right whatsoever.

  • Complete

The present stipulations (including the GCU, the Order and any appendix referred to as such) constitute the entire Agreement between the Parties and reproduce in all respects all prior agreements, letters of intent, correspondence and proposals between them, whatever their form or appellation and relating to the same subject matter, with the exception of those listed herein.

  • Divisibility

If any provision of the Agreement is invalidated in whole or in part, the validity of the remaining provisions of the Agreement shall not be affected. In such a case, the Parties shall, if possible, replace the cancelled provision with a valid provision corresponding to the spirit and purpose of the Contract.

ARTICLE 19. APPLICABLE LAW – SETTLEMENT OF DISPUTES

In the event of a dispute, French law shall be exclusively applicable, to the exclusion of the provisions of the Vienna Convention of April 11, 1980 on Contracts for the International Sale of Goods.

For any dispute arising from the validity, interpretation, performance or termination of the contract, the Commercial Court of Aix-en-Provence shall have jurisdiction, regardless of the place of delivery, the Customer’s geographical location or the method of payment, even in the event of a warranty claim, multiple defendants or summary proceedings.

Nevertheless, any dispute arising between the parties must be the subject of an attempt at amicable resolution prior to any legal action. The plaintiff shall bear the burden of proof of this attempt.

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