I – SCOPE
Each order implies/involves adherence without reservation on the part of the Client to these sales terms and correlative relinquishment on the part of said Client to put forward any clause contrary or complementary possibly appearing/representing on his own commercial documents, in particular in his purchasing terms and conditions. In general, the acceptance by DJO France of each clause contrary or complementary to present sales terms and conditions is subordinate to its prior and written agreement.
The fact that DJO France does not take advantage, at a given moment, of one of the present conditions may not be interpreted as waiving its subsequent taking advantage. The particular conditions accepted by the vendor in the event of an order do not bind the vendor to this order.
II – ORDER
If the Client wishes to make an order, he will have to identify himself first. For that purpose, he will have to fill out, according to the information which has been provided to him on line, a form made available to him where he will give the necessary information for his identification and his last name, first name, telephone number, postal address and delivery address. Further information will be able to be requested from him afterward to assure the quality and security of the delivery.
The products and services are proposed within the limit of available stock. In exceptional cases it can happen that the product is temporarily no longer available, after confirmation of the order. In this case, DJO France will inform the Client by e-mail or by courier, as soon as possible, of said delay of availability. The Client will then have the choice of maintaining his order and waiting for delivery, or may request cancellation of the delivery. In the case of cancellation the Client will be reimbursed immediately.
After the Client has chosen the offered products, he will confirm his order by clicking the “Confirm Order” button to show his commitment and acceptance of the sales terms and conditions. At that moment the order is registered and an order number will be communicated to the Client and/or by electronic courier. The data recorded by DJO France Company constitutes proof of the type, content and date of the order.
III – MODIFICATION OF PRODUCT
DJO France will, at any time, have the power to make any changes to the goods which it markets, in particular the materials, accessories, replacement parts and consumables (hereafter “the Products”) which seem useful to it without obligation to apply those modifications to Products which have already been delivered, are being delivered or are on order.
IV – PRICE – INVOICING – METHODS AND TERMS OF PAYMENT
The Products are sold at the rates in effect on the day of the order, figured/represented in the attached rate/scale at the offered sales conditions, if need be integrating the discounts and rebates which can benefit the purchaser.
These prices are given in Euros, all taxes included. Unless otherwise provided, the prices of the Products do not include postage.
Any invoice that is not disputed in the ten shipping days is considered to be accepted.
The Client is responsible for postage and returns.
DJO France invoices are payable by professionals within 30 days at the end of the month in the office of DJO France. These terms of payment are mandatory.
Private individuals, consumers, should pay cash with the order, by transfer, check or bank card.
Any delay in payment of a DJO France invoice will entail by rights and without prior formal demand:
- The event of default and immediate payability of the total amount owed notwithstanding the previously agreed upon terms of payment,
- Late payment interest shall be payable at a rate of 10 percentage points above the rate of interest applied by the European Central Bank in its most recent refinancing operation.
- A fixed payment of 10% of the debt due shall be payable, which may not be less than 40 euros and which shall cover in particular the fixed legal penalty for the costs associated with collecting the debt.
- The right for DJO France to suspend its deliveries in the expectation of full settlement and/or to cancel all or part of the current order.
Any early settlement is the object of a discount of 0.5% per month in advance. The specified prices include, with regard to the Products, the provision of a standard packing adequate for transport by the reserved means. The packing can not be returned. Any partial payment will at first be applied to the price of the Products already sold by the purchaser, then to the sums which have been due for the longest period.
V - TITLE RETENTION
a) DJO France retains full title to the sold Products until complete payment of their price.
b) From the time of delivery and notwithstanding the fact that DJO France remains owner of the sold Products, the Client assumes any risk that the Products suffer or cause. Consequently the insurance policies, which the Client is supposed to take out at his expense, must include coverage of this risk and expressly mention the status of the proprietor of DJO France.
c) In case the Client does not observe one of the due dates or violation of any of his obligations, DJO France, without prejudice to his other rights, may demand, by registered letter with acknowledgment of receipt, immediate restitution of the Product at the expense of the Client and cancel all or part of the sale in question, in particular on the part that has not been paid.
d) Besides his obligation to restore the Product at his own expense, the Client will be subject to the provisions of the above article III relative to tardiness or default of payment.
e) If the Product has been used, DJO France will have the right to claim compensatory damages outside the cost of possible system recovery.
f) Any deposits received from the Client shall be charged to the sum which will be owed to DJO France in accordance with paragraph d) and e) above.
g) DJO France may at any time have an inventory taken of the unpaid Products held by the purchaser wherever said Products are located.
h) Generally speaking, the purchaser will make sure that identification of the Products will always be possible. The Products in stock will be assumed to be those Products that are unpaid.
VI - DELIVERY
The Products are delivered “ex warehouse DJO France”. The deliveries take place according to availability and in the order in which the orders were received. The vendor may execute the order by means of several partial deliveries.
For private individuals, consumers, the delivery will be carried out in the 5 working days as of the order by the carrier designated by DJO France exclusively by direct delivery of the ordered Product to the announced destination or, in case of absence, to another person empowered by the Client.
The transport is carried out at the risk of the Client who must take place all checks on the delivery on the state of his parcels according to the number of parcels indicated on the delivery slip. In particular, the Client is to ensure that the delivered Product is running smooth, in particular attentively reading the user manual which has been supplied to him.
All reservations or complaints must be addressed to the customer service of DJO France or to the carrier within the time limit fixed in article I. 133-3 of French commercial code. The Client has a time limit of 3 days from the delivery to express his protest or reservations with the carrier. In the case of apparent defects, the Client shall receive the right of return in the offered sales terms and conditions.
VII - DEADLINE
The delivery deadlines are given as a rough guide. They begin to accrue upon the acceptance of the order by DJO France. The exceeding of the deadline may not give rise to damages and interest, reduction or cancellation of the order. Only in the event that a later delivery exceeds sixty days can the Client cancel his order without being able to express any demand other than restitution of deposit or paid price to DJO France.
VIII - RIGHT OF WITHDRAWAL – REQUEST TO EXCHANGE
The consumer Client has a withdrawal period of 14 days from the time of receipt of the product to return said product to the vendor for exchange or reimbursement provided the products are returned in their original package and in perfect condition. All decisions about withdrawal with the request for reimbursement or exchange should be addressed to DJO France at 08.11.02.02.74, the Client then receives a return number to include on his package for coverage. Without this number the returned package will not be accepted. The exchange (subject to availability) or reimbursement will be taken care of within 15 days of receipt of the package by DJO France and the confirmation of the perfect condition of the returned Product. Damaged, soiled or incomplete items will not be taken back.
Except when the responsibility of DJO France is involved, only the price or the Product will be reimbursed. The “return” charges will be at the expense of the Client who can appeal to the carrier of his choice or approach DJO France who will bring in its regular carrier.
Each request to exchange for personal reasons will be carried out according to the same process as described above, the return charges being at the expense of the Client.
IX - RETURN
Without prejudice to the arrangements to take vis-à-vis the carrier, claims on apparent defects or on the non-conformity of the delivered Product must be formulated in writing to DJO France in the eight days of delivery.
The purchaser will prove the reality of the defects or recorded irregularities. He will refrain from bringing in a third party not agreeable to DJO France.
Each return will be carried out under the same conditions as mentioned in article X of the sales terms and conditions, in conformance with the commercial guarantee.
X - GUARANTEE
All devices sold by DJO France are tried and tested prior to delivery.
Independently of the commercial guarantee detailed below, DJO France remains liable for defects of conformity of the sold Product and liable for latent defects in the conditions provided by articles 1641 through 1649 of the civil code relative to the warranty for latent defects. The vendor is bound by the guarantee due to latent defects of the sold object which render it unfit for its intended usage, or which decrease its usage such that the purchaser will not want to acquire it or for which he would have offered a lower price, if he knew about it. Any legal action resulting from the latent defect must be brought by the buyer in a period of two years from the time of the discovery of the defect. If the defect is recognized as a latent defect, the purchaser has the choice of returning the item and having the price of purchase refunded or to keep the item and having returned a portion of the price which will be arbitrated by experts.
Besides, in accordance with the compliance guarantee the vendor is bound to deliver a good in compliance with the contract and to respond to the defects in compliance existing at the time of delivery. He shall likewise respond to the defects in compliance resulting from packaging, assembly instructions or installation when they have been placed under his responsibility by the contract or have been performed under his responsibility. To be compliant with the contract the good must:
1° be fit for regular usage expected of a similar good and, if need be:
- correspond to the description given by the vendor and possess the qualities offered to the purchaser in the form of a sample or model;
- present the qualities which a purchaser can legitimately expect in view of public declarations made by the vendor, by the producer or by his representative, in particular in advertising or in labeling;
2° or display the characteristics defined by common accord by the parties or be fit for any special usage sought by the purchaser, have notified the vendor and said vendor has accepted. Action resulting in the default in compliance shall expire two years from the delivery of the good.
Commercial Guarantee: Besides the legal guarantee above, DJO France, whose address is at MOUGERRE (64990), Centre Européen de Frêt, 3 rue de Béthar, also guarantees the sold products by the following conditions and limits:
• the duration of the guarantee depends on the Product purchased by the Client; this duration is indicated either on the price list or on the personalized price offers;
• this guarantee means “parts and labor”.
To implement this, the Client must contact DJO France customer service at 0811.02.02.74 which will give him a return number, the procedure to follow and which Centre de Réparation Agréé to send the Product;
• transport costs are all chargeable to the Client;
• DJO France or the Centre de Réparation Agréé will have the choice between either doing their best to remedy the fault in a reasonable period of time or to replace the Product with another that is free of the noted defect.
• DJO France may not on any account find itself forced to ask for payment of any sum whatsoever the grounds may be, in particular but without being limited, as regards temporary fixed assets of the Product, of interference of business, loss of order, reduced profit, operating loss etc. and any claim other of the same nature.
• This guarantee is agreed upon for all Products sold by DJO France without territorial limit.
XI - EXCLUSION OF GUARANTEE AND OF RESPONSIBILITY
DJO France declines all guarantees and all responsibility in the case of Product failures (in particular: materials, accessories, peripheral materials and spare parts) which it is marketing for origin:
- breach due to accidents or incidents or non-compliant connections or power supply failures;
- a usage of the Product other than that for which it was designed and manufactured; and as regards accessories, peripheral materials and spare parts, and for any other purpose than maintenance, adjustment or reparation of the Products it is marketing.
- non-observation of the instructions for assembly, use or maintenance;
- modifications, maintenance or interventions not performed by the service specialists of DJO France or its designated representatives or recognized for that purpose;
- the addition or utilization of parts, or accessories other than those manufactured and/or sold or simply recommended by DJO France, or, again of quality that is not equivalent to them.
The vendor also excludes any guarantee for apparent defects which the purchaser will not take advantage of in the time periods mentioned above in articles VII and X from the receipt of the Product.
DJO France declines all responsibility in the case of damage caused by a Product it has sold when:
- The Product has been repaired, maintained or has been the subject of an intervention by an enterprise or third party which has not been agreed upon by DJO France.
- The defects and deterioration brought about by natural wear and tear or by an external accident or a modification, utilization or treatment of the Product not provided for or specified by the vendor, or intervention are excluded from any guarantee.
XII - FORCE MAJEURE
The following are considered as force majeure discharging the vendor of its obligation to deliver and justifies, at the choice of the vendor, either an extension of the delivery deadline or total or partial cancellation of the order: War, riots, fires, strikes at the vendor’s, at his supplier’s or carrier’s making it impossible to get supplies, or purchase merchandise with the purchaser; and more generally any cause of interruption or supplying which the vendor does not have the means of direct intervention to remedy said cause.
The vendor must keep the purchaser informed as far as possible of the above case and events.
XIII - MAINTENANCE
Any professional utilizing a medical device must see to it that its maintenance and thus the tests which are associated with it are realized according to legal demands. The notice of utilization or the reference manual specify the maintenance requirements according to the type of sold Product.
XIV - AVAILABILITY OF INDISPENSIBLE PARTS FOR UTILIZATION OF THE DEVICE
DJO France covenants to provide at the agreed upon Center for after-sales service the indispensible parts for utilization with complete safety of the Product. The duration of the provision is three years from the date of the marketing of the last device of the series. It also applies to indispensable accessories for utilization of the Product such as DJO France electrodes and cables.
XV - INTELLECTUAL PROPERTY RIGHTS - CONFIDENTIALITY
The Client covenants to respect all the intellectual property rights including copyright, brand and industrial property rights. The intellectual property rights on DJO France documents and thus its web site and each of the elements created for the site are the exclusive property of DJO France or of its suppliers, they do not grant any license or any right except that of consulting the site. Reproduction of any document published on the site is only authorized for the exclusive purpose of information for personal and private usage, any reproduction and any utilization of copies realized for other purposes is expressly prohibited. Any other utilization not authorized beforehand by DJO France will be the component of an infringement and will be punished as such.
The Client covenants furthermore to not use the name of DJO France and its commercial brands, logotypes, images and photos of its Products for promotional purposes, in written form or data processing form without written authorization by DJO France.
Catalogs, documentation or published materials of any nature submitted or sent by the vendor remains his complete property and may be taken back in the case where its utilization is contrary to that indicated by the vendor.
XVI - DATA PROTECTION ACT
For requirements for processing your order and for our business relations, and to comply with legal and regulatory obligations, DJO France is required to collect and process certain personal data concerning you. For requirements of execution and delivery of your order, we may be required to communicate part or all of this data to some of our partners.
DJO France assures that the collection and processing of the data of personal character relative to the Client conforms to the provisions of law n°78-17 of January 6, 1978 relative to data processing, to files and to liberties modified by the law n°2004-801 of August 6, 2004 relative to the protection of natural persons in regard to the processing of data of a personal nature (called the Data Protection Act).
The client has the right of opposition, of access, of correction and of suppression concerning data of a personal nature concerning him. For this purpose, it is sufficient for him to make his request to DJO France by registered letter with acknowledgment of receipt, indicating his first name, last name, address and his identifiers, enclosing a copy of his ID card.
The Client is informed that, in order to optimize the functioning of the site, this one may install “cookies” on the Client’s computer.
Afterward the client may be informed of different offers from DJO France by e-mail. If the client does not wish to receive these offers, all he needs to do is let us know (giving first name, last name and address):
• by e-mail to firstname.lastname@example.org
• by mail to:
Centre Européen de Frêt
3 Rue de Béthar
XVII - DISPUTES AND LITIGATION
Any differences that may arise between the Client and DJO France are the exclusive jurisdiction of the courts where the head office of DJO France is situated, notwithstanding the introduction of third parties or a plurality of defendants.