General Terms of Sales

Article 1. SCOPE

• Sales with GenesInk, a French joint stock company (a Société Anonyme under French law), registered with Trade and Companies Register of Aix-en-Provence under number B 525 305 017 RCS Aix-en-Provence with its registered office located 39 Avenue Gaston Imbert 13790 Rousset – FRANCE (hereinafter referred to as « GenesInk ») are exclusively governed by the herein general terms of sale, excluding any other documents such as leaflets, catalogues, documentation issued by GenesInk, which are indicative and are provided for information purposes only.
• Consequently, by placing an order with GenesInk implies the entire acceptance, without reserve, of the herein general terms of sale by the buyer (hereinafter referred to as the “Client”). Unless previously accepted in written by GenesInk, the herein general terms shall prevail over any contrary or specific conditions (deemed not valid and unenforceable to GenesInk), whatever the form of such contrary or special condition (mentioned on the Client’s purchase orders or on the Client’s terms of purchase or any other documents issued by the Client) and no matter when such contrary or specific condition has been brought to GenesInk‘s knowledge.
• IMPORTANT – NOTE TO THE CLIENT: Please read carefully these terms and conditions of use before your order, they constitute a contract between GenesInk and the Client (individual or corporate entity receiving the terms hereunder having acquired a GenesInk product) as identified in the corresponding commercial offer or invoice and define the conditions of sale and use granted by GenesInk to the Client as well as the rights and restrictions that the Client accepts fully and without reservation, by ordering and/or using the related GenesInk product. The Client shall not order or use the GenesInk product if the terms of the herein general terms hereunder are not accepted and/or enforced. In addition to the rights and restrictions imposed by the herein general terms, all other information or restrictions contained in the instructions for use of the GenesInk product or update and recommendations’ notes govern the use of the GenesInk and are incorporated herein by reference.

Article 2. ORDER AND MODIFICATION

2.1.1 Any order must be placed by writing, either by fax, email or post-mail. As per new client, the first order must be transmitted with required documents [ex. recent incorporation affidavit, bank details, intracommunity VAT number, etc.]

2.1.2 Any order placed by the Client with GenesInk shall become final and the sale shall bind GenesInk and the Client only after GenesInk has accepted such order; GenesInk’s acceptance resulting from the sending to the Client of a written confirmation of the order (either by fax, email or post-mail) or from GenesInk performance of the order. Any order that is not accepted within a 30-days delay as of the order’s receipt must be considered as denied. Undertakings made by distributors, agents, representatives or employees shall become valid only upon written and signed ratification by GenesInk.

2.1.3 Any order accepted by GenesInk is firm and final. Any order performed by GenesInk must be honoured by the Client, which shall be bound in particular to take delivery thereof, otherwise, GenesInk shall be authorised to cancel the order and the sale shall be considered as unilaterally terminated by the Client. In that case, GenesInk is entitled to hold any up-front payment issued by the Client as compensation for such termination, without prejudice to any rights and remedies that may be performed by GenesInk for compensation of its damages and to any relevant fees, particularly holding and storage fees.

2.2.1 Any order may also be placed by the Client, directly on the website of GenesInk through the following website address www.genesink.com (hereinafter referred to as « Website »).

2.2.2 Registration of a personal account. The Client must create a personal account in order to make orders on the Website. The personal account is made by the Client e-mail address as the login name and a password which is strictly personal and will allow the Client to access the order form. During the registration process, GenesInk requires the Client to communicate the following information: company name, SIRET number, APE Code, head office address, or any information enable to identify a foreign company, e-mail address, password. The Client fills out in the information fields the invoicing address, the delivery place, phone number… The mandatory fields are marked with an * and will be saved in GenesInk’s customers data base. The Client is entitled to access, modify or object, on legitimate and legal grounds, to the processing of its personal information in accordance with article 10.

2.2.3 Placing an order. The Client registers its order on the Website. To place an order, the Client needs to follow the several steps indicated on the Website and especially: registration of a personal account, identification via the connexion page, access to the page of selection for the products, select the product, click on the “Continue the order” button at the bottom of the page, tick the box “I agree to the terms and conditions of sales and use”, select the type of payment method, click on the “Finalise the order” button in order to be redirected to the payment modules accounts or click on “Cancel” to be redirected to the home page. The Client cannot technically and legally finalise the order if it has not accepted GenesInk’s general conditions of sales by ticking the box “I agree to the terms and conditions of sales and use” which includes a link to these General Conditions. By placing an order, the Client accepts to fulfil these General Conditions. The act of ticking the box “I agree to the terms and conditions of sales and use” demonstrates that the Client took knowledge and accepts, without exception, the General Conditions which are enforceable against the Client. Any order is personal to the Client and cannot be assigned to a third party without the prior consent of GenesInk. Any order shall be invoiced in accordance with the dispositions of the contract.

2.2.4 Email confirmation. Once order and payment are completed, GenesInk sends an email confirmation to the Client reviewing the contract information about the order. At this stage, the sell contract is effective between the Client and GenesInk. The Client is advised to print and/or archive on a reliable and durable support the confirmation of the order and the electronic invoice available in the heading “My space” as a proof.

2.2.5 Compliance with the Client’ data. Information given by the Client when ordering bound the Client, so GenesInk will not be reliable if the data communicated by the Client when placing the order are wrong and do not allow the performance of the sale or allow such performance with late delivery (for example, wrong address, mistake in the company name, mistake in the email address).

Article 3. DELIVERY – TRANSFER OF RISKS

3.1. GenesInk products are sold “Ex Works (Incoterms CCI 2000) – GenesInk head office” and are conveyed at Client’s risks and expenses, subject to the retention of title provisions set forth in article 10 thereof, even if the shipment costs are paid by Genes’ink on behalf of the Client or if the price is stipulated “carriage free” (franco de port).

3.2. Unless otherwise expressly stipulated, delivery shall be completed, at the delivery date stated in the order’s acceptance, upon direct delivery of the ordered products to the Client in GenesInk’s premises or to the carrier chosen by the Client, or failing so, by GenesInk, shipment being carried out at the Client’s expenses.

3.3. It belongs to the Client to carry out all verifications and produce all reserves to the carrier, before unloading, in the event of loss or damage occurred during the course of shipment, especially upon the different exemplary of the delivery orders and to confirm such verifications and reserves by registered letter with acknowledgement of receipt or by means of an extrajudicial instrument, within a period of three (3) days upon receipt of the ordered products (article L. 133-3 of the French Commercial Code). Incomplete, insignificant or unclear reserves, such as “subject to unpacking” or “subject to damage” are not enforceable.

Article 4. DELIVERY TERMS

4.1. Deliveries are performed in accordance with the availabilities and in the order of arrival of the purchase orders. GenesInk reserves the right to carry out partial deliveries with the corresponding partial invoices. The delivery shall take place at the address stated in the Client’s order.

4.2. Unless otherwise expressly stipulated, a delivery timeframe is provided for information only, without warranty, and depends on the possibilities of provisioning of GenesInk and shipment times. The delivery terms are expressed in working days, except problem of transport or quantities, and may not in any case result in the application of penalties for late performance, damages, compensation, deductions, refusal of delivery or cancellations of outstanding orders, whatever may be the reason, scope and consequences of the delay. However, if two (2) months after the indicative delivery date the ordered products were not delivered, for any other reason that a case of force majeure, either GenesInk (especially in case of product shortage) or the Client may cancel the corresponding order. GenesInk shall then, reimburse of any up-front payments excluding any other allowance or damages.

4.3. In the event that the Client does not take delivery of the ordered products at the agreed place and time, it must nonetheless comply with the contractual payment terms. In such event, the ordered products shall be stored by GenesInk in a place of its choice, at the Client’s risks and expenses.

4.4. GenesInk shall be released from its obligation of delivery in the event of force majeure (French civil code Article 1148), including but not limited to, wars, riots, fires, strikes, accidents, natural disasters, the impossibility of being supplied, shortages such as fuel shortages, delay in importation or shipment, and more generally, any direct or indirect cause that hinder or prevent GenesInk, or its suppliers, from manufacturing or delivering. GenesInk will inform the Client in due time of any case of force majeure hereinbefore.

4.5. In any event, delivery can occur only if the Client is up to date with any obligations with GenesInk, whatever is the reason.

Article 5. VERIFICATIONS – RETURNS

5.1. Upon delivery, the Client shall proceed with its standard procedure of verification including control to the quality, quantities and references of the products and their conformity with the order. The ordered products delivered in accordance with the order are delivered on a final basis and can neither be returned nor exchanged.

5.2. Without prejudice to the verifications that the Client must take with respect to the carrier, the Client shall inform GenesInk in writing, within a period of seven (7) business days as of the delivery in the event the delivered products fail to comply with the order. Otherwise, the products shall be deemed accepted and no claim for failure of compliance may be accepted by GenesInk. Moreover, no legal action or proceeding may be commenced by the Client against GenesInk more than one year after delivery of the products; any action or proceeding started after this date shall be null and void.

5.3. The Client will provide GenesInk with a description of any defects as accurately as possible and in particular, the batch number of the delivered products and will authorise GenesInk to proceed with any examination and remedy of these defects. The Client shall prevent itself from intervening directly or through a third party for this purpose.

5.4. The Client will have to obtain the authorization of GenesInk prior to any return of the defective products. In no event unauthorized return of products may give right to the establishment of a credit note or to the replacement of products. The products must be returned in their original package and return fees and risks shall be borne by the Client.

5.5. In the event the delivered products fail to comply with the ordered products, duly recognised as defective by GenesInk under the conditions described above, GenesInk’s entire and sole obligation shall be, at GenesInk choice and charge, to replace the defective products or to establish a credit note to the Client with the price actually paid for such defective products. The foregoing states the entire obligation and liability and exclusive remedy of GenesInk with respect to non conformity of the products exclusive of any other compensation, allowance or damages. If GenesInk verifies that the default is not justified or abusive, the repair will be performed in GenesInk premises subject to a Client’s specific order and invoicing on the basis GenesInk current workmanship hourly rate.

Article 6. WARRANTY– LIABILITY

6.1. The performances of the Products are guaranteed only within the limits of those provided in the standards and regulations in effect in France and European Union on the date of acceptance of the order. In no event shall GenesInk be responsible for non-observance of the legislation of the country where the products are delivered. It belongs to the Client to verify near the local authorities the possibilities of importation or use of the ordered products. The Client is invited to refer to the description of each product to know their precise characteristics. The Client is sole responsible for expressing its needs and for choosing GenesInk products. The Client guarantees that it has not been led to enter into any agreement resulting from written or verbal declarations with the exception of those expressly stated herein and for which the Client renounces any and all claims.

6.2. The products, unmodified, are guaranteed during one (1) months as of their delivery, free from defect in material and workmanship which would make them unsuitable to their destination. Beyond this date, no guarantee is granted. For products not manufactured by GenesInk, the supplier’s warranty will only apply. The herein warranty will not apply if the defaults results from material, devices or instructions provided by the Client or from a conception requested by the Client. The warranty shall not apply for any visible default that the Client shall deal with in accordance with the provisions of article 5 above.

6.3. All guaranties are excluded if the defect is due to normal wear and tear, negligence, a lack of supervision, an unauthorised intervention of the Client or a third party on the products, a specific use that GenesInk has not been informed to, the abnormal use or combination of the products with supports other than those recommended or to storage and conservation conditions defective or not in conformity with the specifications of GenesInk.

6.4. GenesInk’s warranty is limited to the replacement free of charge of the product or to the refund of the product in accordance with the provisions of article 5.3 and s., excluding any other warranty. Workmanship charges for the replacement of the products under warranty and shipment costs or consumables shall be at Client’s expense.

6.5. GENES’INK DISCLAIMS ANY AND ALL OTHER WARRANTIES OR REPRESENTATIONS EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, SATIFACTION OR FITNESS FOR PARTICULAR PURPOSE, SUITABILITY FOR USE AND PERFORMANCE. UNDER NO CIRCUMSTANCES WILL GENES’INK BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF CLIENTS, REDUCTION OR INTERRUPTION OF ACTIVITY), BASED ON THE CLIENT’S CLAIMS OR THOSE OF A THIRD PARTY AND ARISING OUT OF THE DELIVERED PRODUCTS, THEIR USE OR THE IMPOSSIBILITY TO USE IT, OR TO BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY. UNDER NO CIRCUMSTANCES GENES’INK SHALL BE HELD LIABLE FOR ANY OTHER DAMAGES THAN DIRECT DAMAGES EVIDENCED AS ATTRIBUTED TO IT, SUBJECT TO THE FOLLOWING LIMIT. EXCEPT FOR DAMAGES ARISING DIRECTLY FROM GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, IN NO EVENT WILL THE AGGREGATE LIABILITY THAT GENES’INK MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE FEES ACTUALLY PAID TO GENES’INK BY THE CLIENT FOR THE PRODUCTS THAT DIRECTLY CAUSED THE DAMAGE. THE HEREIN EXCLUSION AND LIMITATION OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW REGARDLESS THE LEGAL THEORY WHETHER IN CONTRACT, TORT, WARRANTY INFRINGMENT, EQUITY OR OTHERWISE.

Article 7. PRODUCTS REQUIREMENTS

The Client expressly represents having knowledge and undertakes to comply with GenesInk recommendations as per GenesInk products’ use, storage, maintenance and stockage and especially, to these requirements stated in the products-sheets or recommendation notes. As per the characteristics and the high technical value of the products, the Client is liable to make sure that it complies with GenesInk recommendations. In no circumstances GenesInk shall be liable for any use that does not comply with its recommendations.

Article 8. PRICE – TERMS OF PAYMENT

8.1. Unless otherwise expressly stipulated, the products are sold at the current price upon the reception of the order. Prices are indicated (i) exclusive of taxes, (ii) net, (iii) ex-works (incoterms CCI 200), (iv) packaging included, except for specific package. The Client shall be in charge with the payment of the shipment costs (with a minimum flat rate of EUR 100) and any tax, taxes, right or other services to be paid in application to French legislations and regulations or those of an importing country or one countries of transit.

8.2. Unless otherwise expressly stipulated, payments are carried out at GenesInk premises, in Euros, in accordance with the terms of payment stated in GenesInk commercial offer, without discount for cash, discount, rebate or refund. GenesInk may request, at any time, the payment of a down-payment, the endorsement and acceptance of its bills of exchange and any other endorsement or guarantees. In the event of late payment, the Client shall be liable to the payment of a late penalty calculated on the basis of the current legal interest rate applied to the outstanding amount as of payment date stated on the invoice. Claims, if any, do not release the Client from the payment of each invoice on the date of payment thereof.

8.3. Late payment or absence of payment of all or part of the price on due date shall result in the entirety of the sums due by the Client to GenesInk being immediately payable, even if the said sums have not fallen due yet and whatever may be the mode of payment provided for. Furthermore, in the absence of payment within 48 hours upon formal notice sent by GenesInk by registered letter with acknowledgment of receipt, GenesInk shall be entitled to (i) terminate automatically, forthwith and without need for a judicial order, the corresponding order and any and all outstanding orders, whether delivered or in the course of delivery even if the payment has not fallen due yet and (ii) require the return of the products already delivered and (iii) require the refund of the shipping expenses, without prejudice to any other rights or remedies.

8.4. In any event, the sums which would be due for other deliveries, or for any other reasons, will become immediately payable if GenesInk does not terminate the corresponding orders. GenesInk also reserves the right to modify its terms of payment and to require satisfactory guarantees for performance of the orders received before the financial difficulties of the Client arise.

Article 9. INDUSTRIAL AND INTELLECTUAL PROPERTY, TERMS OF USE, NON-DISCLOSURE AGREEMENT

9.1. The GenesInk products are patented and protected by several international regulations and treaties concerning copyright and intellectual property. GenesInk is the exclusive owner, at anytime and anywhere, of any rights, titles and interest in the products sold. The Client acknowledges that any title especially those relative to intellectual and industrial property or similar rights, patents, trademarks, commercial secrets, know-how, ideas, concepts and inventions, any interest, protected or not by applicable law, concerning the Genes’ink products as well as any modifications, improvements, corrections, updates or new versions, belong to and are at any time reserved to GenesInk. If suggestions, concepts or evolutions are suggested by the Client and incorporated into the products or taken into account by GenesInk, the Client hereby accepts to assign to Genes’ink, on a free of charge basis, all interests in and ownership rights that the Client may claim. The Client undertakes not to take any action that could jeopardize or infringe directly or indirectly GenesInk’s rights over the products sold. The Client undertakes to keep all trademarks or distinctive signs of GenesInk on the products and related documentation and to refrain from any behavior which would result in depriving GenesInk of its intellectual patrimony.

9.2. Industrial and/or intellectual property rights relating to GenesInk products are not sold. Only a right of use is licensed to the Client. The herein conditions establishes the terms and conditions to which GenesInk and the Client have agreed for the use of the GenesInk products and related documentation specified in the above financial offer subject to Client’s order. Each order will create a stand-alone licence granting to the Client a right to use the related GenesInk in accordance with the herein terms and conditions. Subject to the full payment of the corresponding fees, the Client is granted a personal, limited, non-transferable and non-exclusive right to use the GenesInk products only for its own internal purposes and business operations which excludes any services for third party. This right of use is personal and may not be assigned or loaned to any person; any other use of the GenesInk products is formally forbidden. The Client shall not (nor make, cause or permit a third party to) (i) reproduce, alter, adapt, translate by any means, disassemble, all or part of the GenesInk products or its documentation, create derivative or competing works based on the GenesInk products, nor engage in any reverse engineering, nor attempt to discover the compositions, underlying ideas or any other associated know-how; (ii) modify the GenesInk products by any means, (iii) distribute, provide or sub-license, diffuse, transfer, lease, loan, sell, give or transfer, even freely all or part of the GenesInk products, by any means, to anyone; (iv) use the GenesInk products on behalf of a third-party.

9.3. The Client acknowledges that the GenesInk products constitute and incorporate confidential and high value information, creation, secrets and knows-how (“Confidential Information”), originally developed or acquired by or licensed to GenesInk by undertaking huge investments in research and development. The Client shall keep such information as strictly confidential and shall not use it. The Client shall prevent itself from withdrawing or having withdrawn any proprietary or confidential label. Any label related to GenesInk patents shall not be considered as a disclosure and shall hinder the confidentiality nature of the Confidential Information. The Client shall not disclose to any third party any Confidential Information contained in the GenesInk products or any information that would have been designated as confidential, in whole or in part, except to these Client’s employees, who have a need to know in connection with the use of the Confidential Information provided that they shall be bound to confidentiality. The Client acknowledges that any breach of any of its obligations with respect to confidentiality or access of the Confidential Information hereunder is likely to cause GenesInk or its clients or its partners, irreparable competitive harm and endanger their confidential and proprietary nature. The Client shall notify GenesInk forthwith of any unauthorized use or disclosure and shall take all the necessary measures in order to reinstall the situation and avoid any further illegal disclosures. No license, even implicit, is granted as per the disclosure of Confidential Information. Within fourteen (14) days as of a written request by GenesInk, the Client shall be obliged to return any and all Confidential Information (or any part thereof), including any and all copies. The Client confidentiality obligations hereunder with respect to each item of Confidential Information of any nature whatsoever not of the nature of trade secret or intellectual and industrial property shall continue ten (10) years from the date of receipt of such information. With regard to Confidential Information of the nature of trade secret or intellectual and industrial property Client’s obligations shall continue for as long as such information receives protection as trade secret or intellectual and industrial property under the applicable law and any extensions.

Article 10. Processing of data

The Client’s information gathered by GenesInk are necessary to processing with the order and the related contractual obligations. GenesInk may use such information for direct marketing, promotion and communication directly linked to GenesInk activities, unless the Client instructs otherwise by regular post-mail to the following address 39 Avenue Gaston Imbert 13790 Rousset or by email to the following address administration@genesink.com.

In accordance with the French Data Protection and Freedom of Information Law 78-17 dated 6 January 1978, the Client is entitled to access its information and kept by GenesInk and has the right to rectify, modify and delete all its personal data by regular post to the following address 39 Avenue Gaston Imbert 13790 Rousset or by email to the following address administration@genesink.com.

The Client, may irrevocably ask for its personal data to be rectified, completed, clarified, updated or erased if the information is inexact, incomplete, ambiguous, expired or if their collection, utilisation, communication or conservation is prohibited.

In accordance with the said law, files and personal data processing have been subject to declarations to the National Commission for Data Processing and Liberties (CNIL).

Article 11. RETENTION OF TITLE

THE TRANSFER OF TITLE TO THE PRODUCTS IS SUBJECT TO THE FULL PAYMENT OF THE CORRESPONDING INVOICE BY THE CLIENT ON THE DUE DATE. Notwithstanding the foregoing, the transfer of title shall not include any transfer of ownership in the intellectual and industrial rights with respect to the GenesInk products that are retained by GenesInk. Consequently, until the receipt by GenesInk of cleared funds, the Client undertakes not to transform or incorporate the products into other products nor resell it or pawn it and to guard the products with enough care especially by insuring the products against any risk they may incur or cause; otherwise GenesInk shall be entitled to request for immediate return of the products.

Article 12. APPLICABLE LAW – COMPETENT JURISDICTION

THE SALES CONCLUDED WITH GENES’INK ARE GOVERNED BY THE LAWS OF FRANCE EXCLUDING THE CONVENTION OF VIENNA CONCERNING THE INTERNATIONAL SALE OF GOODS AND THE RULES RELATED TO CONFLICTS OF LAW OR JURISDICTIONS. ANY DISPUTE OR ANY CLAIM ARISING OUT OR IN CONNECTION WITH THE VALIDITY, INTERPRETATION, PERFORMANCE OR TERMINATION OF THE AGREEMENT SHALL BE SUBMITTED TO THE JURISDICTION OF THE COMMERCIAL COURT COMPETENT WITHIN THE GENES’INK REGISTERED OFFICE’S LOCATION, NOTWITHSTANDING ANY WARRANTY APPEAL OR PLURALITY OF DEFENDERS AND ANY COMPETENT JURISDICTION CLAUSES THAT MAY EXIST ON THE DOCUMENTS OF THE CLIENT.

Article 13. FINAL PROVISIONS

13.1. This document constitutes the entire agreement between GenesInk and the Client as per its order. This document is a translation of the general terms of sale originally written in French language. In the event of ambiguity or contradiction in the English version, the French version shall be deemed authentic and prevail.

13.2. Failure or delay on the part of GenesInk to exercise or enforce any right or remedy under this general terms shall not operate as a waiver, nor shall any single or partial exercise of any right or remedy preclude any other future exercise or enforcement by GenesInk of any other right or remedy under these general terms.

12.3. If any provision contained herein is held to be invalid, unenforceable or illegal to any extent, these general terms and all its other clauses shall continue with full force and effect.

13.4. The Client is prohibited, for a period of two (2) years from signing the Agreement, to offer to hire, hire or to contract, directly or through intermediaries, any employee, officer, partner or member of GenesInk, including the assumption that he/she would cease its relationship with GenesInk, whatever his/her specialization, to offer him/her a contract of employment, a social mandate, partnership contract or other cooperation unless GenesInk has given its prior written consent. If the client does not comply with this requirement of non-solicitation, it shall compensate GenesInk (including costs of selection and recruitment, training expenses, damages resulting from the depreciation of GenesInk or commitments made in reliance on any person debauched by the Client) forthwith with a compensation at least equal to two (2) times the total gross salary paid to the debauched person during the year preceding his/her departure.

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