The purpose of these general terms and conditions is to establish the respective obligations of Shimadzu Diagnostics Europe company (referred to as “Shimadzu Diagnostics Europe”) and the Customer in their contractual relations relating to the sale of products by Shimadzu Diagnostics Europe (referred to as “Products”).
Ordering supplies involves the application without reservation by the Customer and its full membership to the terms and conditions which prevail over any other document of the Customer including all terms and conditions of purchase unless prior written consent derogatory by Shimadzu Diagnostics Europe.
Article 1 – Contractual documents
The Agreement is made up of the following contract documents:
1. Purchase Order
2. Special Conditions if they exist
3. General Conditions
The contract documents are classified above in their order of priority. In the event of a contradiction between the various documents, the document placed before the other in the list above shall prevail.
This Agreement constitutes the entire agreement of the Parties relating to its subject matter. It cancels and replaces any formal or non-formal agreement, any proposal, draft, bi-lateral or unilateral commitment, any contract or agreement that may have existed for the same purpose between the Parties prior to its signature.
In addition, this Agreement supersedes all the Parties’ respective general terms and conditions of sale and/or purchase.
This Agreement may only be amended by a written amendment signed by a duly authorized representative of each of the Parties.
Article 2 – Purchase Order Process
The Customer shall send Shimadzu Diagnostics Europe his purchase orders:
– online, by using the Shimadzu Diagnostics Europe website accessible by the URL www.diagnostics-eu.shimadzu.com, or
– by e-mail, by sending the purchase order to the following e-mail address orders@diagnostics-eu.shimadzu.com
The purchase order must necessarily be accepted by Shimadzu Diagnostics Europe to be considered valid and this acceptance cannot be implied.
The purchase order will be considered firm upon receipt by the Customer of an e-mail or any other written confirmation of acceptance of the order and, except otherwise provided in Specific Conditions, after payment of the Order.
No order or modification of order cannot be considered firm and definitive until it has not been acknowledged and confirmed in writing by Shimadzu Diagnostics Europe.
Article 3 – Invoicing and payment terms
Unless particular agreement, Parties agree to apply Free Carrier Alongside (FCA) at Joure, Netherland (which is the place of the Shimadzu Diagnostics Europe logistic warehouse) Incoterm (2020 Edition).
Prices are determined by rates and conditions existing at the date of the order.
The partial delivery of an order cannot allow the Customer to defer payment of the corresponding fraction of the price, if Shimadzu Diagnostics Europe requires.
Except otherwise provided in Specific Conditions, the Order shall be paid by the Client:
– During the Order process, on the website, if the Client uses the Shimadzu Diagnostics Europe website.
– Immediately after the order, if the order is sent by e-mail (No orders will be dispatched until payment has been confirmed by Shimadzu Diagnostics Europe’ bank).
In accordance with the provisions of Article L. 441-6 of the French Commercial Code, any invoice not paid on the due date by the Customer to Shimadzu Diagnostics Europe shall automatically and without any reminder being required, give rise late payment penalties calculated on the basis of the semi-annual key interest rate (refinancing rate) of the European Central Bank (ECB), in force on 1 January or 1 July, increased by 10 points.
Article 4 – Liability and warranty
In the event of a breach of its contractual obligations, Shimadzu Diagnostics Europe shall be liable for compensation for direct and foreseeable damages due to the faulty performance of this Agreement. Consequently, Shimadzu Diagnostics Europe shall under no circumstances be held liable for any indirect or unforeseeable damage suffered by the Customer, which may arise because of or in connection with the performance of this Agreement.
Furthermore, regardless of the circumstances and consequences thereof, Shimadzu Diagnostics Europe financial liability for any damage suffered by the Customer in the event of breach of the Agreement by Shimadzu Diagnostics Europe shall in no event exceed the amount of the invoice paid by the Customer for the Order concerned by the damage.
Shimadzu Diagnostics Europe shall under no circumstances be held liable in the event of:
– Customer’s refusal to cooperate with Shimadzu Diagnostics Europe in solving anomalies or malfunctions, including responding to questions and enquiries.
– Use of the Product in a manner that does not conform to its intended purpose or with the Technical Documentation.
– Modification of all or part of the Product not carried out by Shimadzu Diagnostics Europe.
– Use of all or part of the Products while Shimadzu Diagnostics Europe, due to any reason, had recommended that its use should be suspended.
– The occurrence of a force majeure event.
– Occurrence of any damage that would result from the Customer’s fault or negligence or which could have been avoided by the Customer asking for Shimadzu Diagnostics Europe’s advice.
Article 5 – Confidentiality
5.1 – Definition
“Confidential Information” refers, within the meaning of this Agreement, to any information, data, element, document of any kind whatsoever and regardless of the medium and form, oral or written, sound or visual, concerning or in relation with the Parties, their customers, partners, service providers or suppliers and in particular, without this list being exhaustive, any information of a structural, economic, technical, organizational, operational, commercial, marketing, legal, financial, tax, social or other nature communicated, directly or indirectly, by the Parties themselves or by their agents, their advisors or in general, of which one of the Parties is aware during the performance of this Agreement.
The existence and the terms of this Agreement constitute Confidential Information within the meaning of this Agreement with regard to which each of the Parties is bound by an obligation of confidentiality under the conditions set out in this article.
Each of the Parties undertakes, throughout the term of this Agreement and for a period of 3 years after its expiry, to:
– Keep all Confidential Information confidential.
– Not to disclose and/or communicate to anyone, directly or indirectly, all or part of the Confidential Information.
– Not to make any use of the Confidential Information for any purpose other than that for which it was communicated.
– Not to use, directly or indirectly, on its own behalf or on behalf of a third party, all or part of the Confidential Information.
– Limit the disclosure of Confidential Information to those of its employees and service providers for whom such communication is necessary in order to carry out the services covered by the Agreement and to have them adhere in advance to the same obligations as those currently described.
– Ensure that the persons identified above will keep confidential the Confidential Information and will not use the Confidential Information for any other purpose, including for personal purposes.
– Not to copy or permit to be copied, by any process or method of reproduction whatsoever, in whole or in part, the media containing elements constituting Confidential Information, except for the purposes directly and strictly related to the proper performance of the Agreement, without the prior written consent of the other Party.
– Take all necessary measures to preserve the confidential nature of the Confidential Information. These measures may not be less than those taken by the Party for the protection of its own confidential information of the same importance.
This confidentiality undertaking shall not apply to information in respect of which it can be proven that:
– The information was already legitimately known to the other Party prior to its disclosure.
– The information passed, after the date of its disclosure or communication, into the public domain, independently of a fault of the Parties.
– The information has been lawfully acquired from a third party not bound by a confidentiality undertaking or an obligation of secrecy concerning the said Information.
– The disclosure has been ordered pursuant to (i) a decision of a judicial, governmental or supervisory authority duly authorized and/or (ii) an investigation procedure in the context of legal proceedings provided that the Party concerned has previously informed the other Party and has given it all possibilities to seek in advance, lawfully, to protect such Confidential Information; in any event, the disclosure of Confidential Information under this paragraph may only be strictly limited to the fulfilment of the obligation of disclosure.
5.2 – Return of Confidential Information
At the simple written request and in any event at the end of the Agreement for any reason whatsoever, the Parties undertake to delete, destroy, permanently erase and have deleted, destroyed or permanently erased all or part of the Confidential Information (including those stored in databases or by any other electronic means) as well as all copies in their possession.
Article 6 – Commercial reference
Shimadzu Diagnostics Europe is authorized to report its collaboration with the Customer by indicating its corporate name, acronym and/or logo in its internal and/or external communications regardless of the medium, both during the term of this Agreement and after its expiry. The Customer may, at any time, ask Shimadzu Diagnostics Europe to cease using its company name, sign and/or logo. Shimadzu Diagnostics Europe undertakes to cease, as soon as possible after the Customer’s request, such use.
Shimadzu Diagnostics Europe undertakes not to harm, in any way whatsoever, the image, notoriety and/or reputation of the Customer, the group to which the Customer belongs, or their brands, distinctive signs, products or services.
Article 7 – Force majeure
In the event that the performance of the obligations incumbent upon either Party under this Agreement is delayed or prevented, in whole or in part, due to the occurrence of a case of force majeure, defined by case law as any unforeseeable, irresistible event and not attributable to the Party invoking it, the Party thus prevented shall be obliged to inform the other, by any written means, as soon as possible and in any event, within a maximum period of 24 (twenty-four) hours from the occurrence of such an event, describing the event specifically invoked, as well as the expected duration of suspension of the effects of this Agreement.
During the suspension period, none of the Parties may be held liable for failures resulting from such force majeure event.
The Party thus prevented shall be excused, exempted, and discharged from the performance of its obligations, insofar as it is compromised or prevented as a result, without incurring any liability.
The Agreement shall resume its effects upon the disappearance of the cause of suspension.
The end of the event will also be communicated, within a maximum of 24 (twenty-four) hours following the end of the suspension, by the Party affected by the case of force majeure.
Without prejudice to the foregoing, the Party invoking force majeure shall make every effort to avoid or eliminate the causes of the delay or suspension as soon as possible, without any financial burden resulting for the other Party.
However, after a period of fifteen (15) calendar days of total interruption of either of the Services due to force majeure, each Party may terminate this Agreement immediately and automatically by registered letter with acknowledgement of receipt sent to the other Party without any compensation being due on either side in this respect. In this case, the Parties have agreed that the effective termination date of this Agreement shall be the date of receipt of the said registered letter with acknowledgement of receipt giving notice of the termination.
Article 8 – Independence of the parties
The provisions of this Agreement shall not constitute or be construed as, in particular, a relationship of subordination, joint venture, company, de facto or de facto company, or a mandate of the Customer or its agents with respect to or with Shimadzu Diagnostics Europe, and Shimadzu Diagnostics Europe may not in any way bind the Customer to third parties without the express prior authorization of the Customer, or act for the Customer, even by omission.
It is expressly understood that Shimadzu Diagnostics Europe shall act as an independent service provider in the performance of this Agreement and shall remain the sole employer of its employees and sole contractor of its independent employees.
The employees (employed or self-employed) of each of the Parties shall remain under the authority, management and sole responsibility of such Party and shall under no circumstances be considered to be employees of the other Party or benefit from the status or any advantage granted to the employees of the other Party.
Article 9 – Non-solicitation of staff
The Customer shall abstain, except with the prior written consent of Shimadzu Diagnostics Europe, directly or indirectly from making offers of employment to an employee of Shimadzu Diagnostics Europe assigned to the performance of the services covered by this Agreement or to use such employee in its service, in any capacity whatsoever.
This abstention is valid for the term of this Agreement and for twelve (12) months following the effective date of this Agreement, for any reason whatsoever.
In the event of non-compliance with this commitment by one of the Parties, the Customer shall compensate Shimadzu Diagnostics Europe for the loss suffered by paying it an indemnity equal to the amount of the employee’s gross annual salary.
Article 10 – No waiver
Any failure to exercise or delay in exercising a right or prerogative by a Party shall not be considered as a waiver of this right or prerogative in favour of the other Party. Similarly, the exercise of a single right or the partial exercise of a right or prerogative shall not exclude in advance the exercise of another right or prerogative provided for in the Agreement.
No waiver may produce effects unless stipulated in writing, signed by a representative of each of the Parties.
Article 11 – Unity of the agreement
If one or more provisions of this Agreement are declared null and void or unenforceable by a competent court, this provision shall be deleted from this Agreement without the validity and/or enforceability of the other provisions being affected, except in cases where the deleted provision(s) relates to the purpose of this Agreement.
If the invalidity or inapplicability of a provision of the Agreement seriously affects the legal and/or economic balance of the latter, the Parties agree to meet in order to replace this provision with a valid provision that is as close as possible to it both in legal and economic terms.
Article 12 – Governing law – Jurisdiction
This Agreement is governed by French law.
In the event of any dispute or litigation relating to the formation, performance or interpretation of this Agreement, the Parties shall endeavor to amicably resolve their dispute.
In the absence of an amicable agreement between the Parties on the dispute or the litigation between them within forty-five (45) working days from the date of first submission of the registered letter with acknowledgement of receipt sent by the Party to the other Party in order to notify it of the dispute, or in the event of failure of amicable discussions, the dispute shall be submitted to the competent courts within the jurisdiction of the registered office of Shimadzu Diagnostics Europe.
Version updated on the 24th of March 2023
