General Terms and Conditions of Sale

These general terms and conditions of sale (hereinafter the "General Terms and Conditions") are applicable to all products and services (hereinafter the "Products" or "Services") marketed by the company Bmax SAS, a company incorporated as a société par actions simplifiée with a capital of ten thousand (10,000) Euros, registered with the Trade and Companies Register of Toulouse under the number 539 450 833, having its head office 30 Boulevard de Thibaud CS 10433 - 31104 Toulouse Cedex 01 (hereinafter "Bmax").These General Terms and Conditions cancel and replace all previous terms and conditions of sale and applicable notwithstanding any contrary provisions of terms and conditions of purchase of the Bmax joint contractors (hereinafter the "Customer"). If the Customer has accepted specific terms and conditions applicable to the sale of the Products or the Services, on any document such as sales offers and invoices, said conditions (hereinafter the "Special Conditions") will also apply to such sale of Products or Services.
If any contradiction exists, the Special Conditions will prevail.
If no Special Conditions exists, these General Terms and Conditions will apply exclusively to relations between Bmax and the Customer, and would constitute a sale agreement (hereinafter the "Agreement") between the Customer and Bmax.
The General Terms and Conditions are applicable to all orders issued by the Customer. All other terms and conditions, particularly those printed on any document submitted by the Customer, will be inapplicable. In particular, the acceptance by Bmax of an order placed by the Customer does not constitute acceptance of any additional or different terms. Bmax expressly refuses all terms and conditions proposed by the Customer, except if these conditions have been agreed to in writing between the parties in compliance with Article 18 of the General Terms and Conditions.

The General Terms and Conditions of Sale are reproduced on the back of quotes, sales offers, purchase orders (issued by Bmax), and invoices, the signing of these documents issued by Bmax constitutes acknowledgement of the acceptance of the General Terms and Conditions appearing overleaf.

The orders placed by the Customer with Bmax are firm and final.
They will however only be processed by Bmax insofar as the form which physically reproduced such order is signed by a person duly authorized by the Customer.
The orders negotiated verbally or through representatives of Bmax or the Customer will be definitive only after a written confirmation of the Customer and Bmax.
Any changes after the order will not be considered unless a written consent has been signed between Bmax and the Customer in compliance with the Article 18 of the General Terms and Conditions.
An order accepted by Bmax cannot be cancelled unless a written consent has been signed between Bmax and the Customer and subject to any cancellation fees borne by the Customer (- 30% cancellation fees or other if agreed upon).
The price of the Products or Services is fixed in advance in a sales offer signed by a person duly authorized by the Customer.
The prices of the Products or Services are exclusive of taxes (VAT, local taxes, and customs duties, etc.) and exclusive of standard packing & transport or insurance costs for a carrier selected by Bmax, except as otherwise specified.
Bmax reserves the right to offset any amount due to the Customer, for whatever reason, with the amounts that the Customer may still owe him for whatever reason.
Unless otherwise provided by the Special Conditions, a prepayment invoice is issued by Bmax after acceptance of Customer’s order for the Products or Services. This invoice is to be paid upon reception and may be followed by one or several progress invoice(s) or invoices with payment schedule agreed by both parties. An invoice for the balance due is issued following the final delivery or installation of the Products or Services by Bmax.
Payment can be made by check or bank transfer and will occur within thirty (30) days end of month, as from the issuance date of the invoice.
In compliance with Article 441-3 of the commercial Code, "Payment is deemed as performed on the date which the funds are made available, by the customer, to the beneficiary or the latter's substitute." Accordingly, Customer's payment shall only be considered as performed once the amounts due fully credited to Bmax's account.
The invoice number must be legibly indicated with each payment.
The Customer will be deemed definitively and irrevocably waiving any dispute of invoices if no claims are expressed within ten (10) days subsequently to the receipt thereof.
Bmax reserves the right to change its prices at any time, but the Products or Services will be invoiced on the basis of currently prevailing rates when the Customer's order is registered.

The non-payment of an invoice at its term implies the immediate payment of all invoices due by the Customer.
Bmax shall be entitled, without prior notice, to suspend deliveries until full payment of said invoices or demand full payment on the order for any new orders, as it decides without prejudice to Bmax's decision to terminate the sale in accordance with Article 14 of these General Terms and Conditions.
All unpaid amounts on the specified due date, will give rise to the Customer's ipso jure obligation to pay, without prior notice, a late payment penalty corresponding to the interest rate applied by the European Central Bank at its most recent refinancing operation plus ten (10) (percentage) points. The late payment interest shall not, in any event, be less than three (3) times the legal interest rate in force for the relevant period.
This late payment interest is calculated on the amount of the due sum including taxes, and starts as from the due date of payment of the invoice without any prior notice being required.
According to the law n° 2012-387 dated March 22, 2012, the invoice shall include the legal notice regarding a lump indemnity concerning collection costs owed to Bmax in the event of delay in payment, for a minimum amount of 40€, increased if the recovery costs were higher than the lump indemnity.
The Customer will have to pay all unpaid charges and fees incurred by Bmax in the event of recovery litigation for the amounts due.

Bmax will provide the Customer with the Services and, if necessary, install the Products indicated on the sales offer.
Delivery deadlines which may be specified in the Special Conditions, on the sales offer, or any other form or document from Bmax, are purely estimates.
Delayed delivery or supply of all or part of the Products or Services does not authorize the Customer to consider the Agreement null and void or the deduction of due payments, and does not exempt the latter from its obligation of accepting any remaining deliveries, and cannot give rise to the grant of damages.
Bmax may not therefore be held liable on the grounds of partial or delayed delivery.
The Products shipment and packing terms will be agreed prior to signing the purchase order, and indicated on the purchase order.
The Customer controls the contents of its order upon receipt and shall imperatively express any reservations on the delivery slip, in particular when the Product's packaging is damaged when received. In such case, only the carrier is liable. If no reservations are expressed, the order will be considered as from of any obvious defects.
The Customer will communicate all claims that a Product is defective observed at the time or subsequent to delivery to Bmax within twenty four (24) hours following the Product's receipt.
Said claim shall be addressed in writing to the following address: Bmax, 30 Boulevard de Thibaud, CS 10433, 31104 Toulouse Cedex 01, by registered letter with acknowledgment of receipt, and by telephone to the local sales representative it still includes the following documents:

• Claims legibly filled in which Bmax will provide to the Customer;
• Copy of the signed delivery slip;
• Copy of the order form;
• Photographs of the one or several damages.

All incomplete or late claims shall not be processed.

All claims on the grounds of noncompliance of the Products delivered with the order shall be sent by fax to the following number: +33 (0)5 34 61 22 99 or email to contact@bmax.com, within one (1) week for equipment from delivery or installation (when Bmax is required to install the equipment) or three (3) days for parts as of receipt of the Products. Such claims will include the same documents as those required for a claim for damages (except for photographs).
In all cases, claims will only give rise to a commercial rebate or to the delivery of new products. The Customer shall not be entitled to hold back any amounts owed to Bmax as compensation for a claim.

The Products may not be returned or exchanged without prior written consent from Bmax and subject to possible reimbursement of the technical or administrative costs corresponding to the operations of return or exchange.
The receipt of the Products by Bmax, returned by the Customer without Bmax's consent, cannot be considered as a tacit acceptance of return or exchange of said products by Bmax.

The delivery of the Products may be subject to the execution by the Customer of an End-User Certificate, this certificate being provided by Bmax.

Unless otherwise specified by Bmax, Customer acquires ownership of the Products or Services progressively as they are performed, including if the order cannot be completed for any reason.
If the Customer is subject to readjustment or liquidation or has not fully paid for the order, Bmax reserves the right to claim the Products sold by Bmax and those remaining unpaid by the Customer and to terminate the order if appropriate.
The risks (in particular the loss and the damage) relating to the Products will be transferred to the Customer as from the actual delivery of the Products to the Customer as agreed by the parties.

The Products shall be checked by the Customer at delivery, and any claims relating to obvious defects and/or non-compliance of Products received by the Customer as compared to the order or delivery shall be made in accordance with the conditions specified in Article 5 of these General Terms and Conditions.
The Customer shall provide evidence of the reality of observed defects, Bmax receives the right to, directly or indirectly, undertake any contrary observations and verifications on site.

Under the hidden defects warranty, Bmax shall only held be obligated to replace defective Products free on charge, the Customer shall not be entitled to claim any compensation or damages for any reason whatsoever. Possible carriage costs shall be paid for by the Customer.
This warranty is not applicable to obvious defects.
Defects and deteriorations of delivered Products resulting from improper storage and/or preservation and/or use conditions use at the Customer's premises shall not open rights to the Bmax warranty.

The technologies based on high pulsed power associated with Products or Services may be covered by intellectual property rights owned by Bmax or its affiliated companies, namely patents, trademarks, designs, copyrights, trade secrets, or know-how.
In case the installation of the Products or the provision of the Services associated to the Products enforce the intellectual property rights, Bmax grants to the Customer a non-exclusive license to use for the needs restricted to its business, provided that Bmax remains the owner of the technologies based on the high power pulsed associated to Products or Services and the Customer will be free to resell the products manufactured using the system, without authorization of reproducing all or part of Bmax's products.
All improvements to the rights granted will be communicated by the Customer to Bmax who may dispose of them freely; Bmax undertakes to inform the Customer of any improvement relating to the licensed intellectual property rights. Bmax and the Customer will work together to settle by a separate agreement the ownership of the improvements made by the Customer.
Unless otherwise agreed with the Customer, the intellectual property rights generated by Bmax within an agreement remain the exclusive property of Bmax who grants a license to use to the Customer, in accordance with the provisions of this article.

The Customer and Bmax will sign a non-disclosure agreement at the presentation of Bmax's offer of the Products and/or the Services.
In any event and in the absence of a non-disclosure agreement, the Customer and Bmax will undertake:

• Not to disclose, all or part, in any manner whatsoever, to any third parties or other persons than their representatives (such as external representatives, such as the counsels and internal representatives, such as the general counsels, the officers and the employees), which are entitled to know them and a related entity according to provisions of Article L. 233-3 of French commercial Code, the confidential information (any information of any kind in particular technical, commercial, financial, accounting, relating to Bmax or to the Customer, disclosed in writing or orally or by any other means, ... ) in their possession;
• To limit, by all appropriate means, the total or partial disclosure of confidential information to their representatives whose involvement is necessary and a related entity according to provisions of Article L. 233-3 of French commercial Code;
• Not to use the confidential information for any other purpose than the performance of the Agreement;
• To return, at the first written request of Bmax or the Customer, to Bmax or the Customer all documents submitted, and all copies thereof made, and/or destroy immediately all such ² documents and to send immediately to Bmax or to the Customer without delay a letter confirming the return or the physical destruction of such documents.

This non-disclosure agreement will remain in force for all the term of the business provision and will terminate at the end of a five (5) year period as from the acceptance by the Customer of these General Terms and Conditions.

This non-disclosure agreement will not apply:

• To the information already in the public domain at the time of the disclosure;
• To the information disclosed as non-confidential by an independent source of the Customer or of Bmax and their representatives, and if no legal or contractual prohibition to disclose this information exists at the time of their disclosure.

These General Terms and Conditions specify all of Bmax's obligations and liabilities as regards the delivery or the supply of the Products or Services.
No warranty or other conditions, except as expressly stipulated in the Agreement cannot be opposed to Bmax.
In the event of the delivery of goods which do not comply with the order or the specifications, Bmax's liability shall be strictly limited to the obligation of replacing or repairing such non-compliant goods and shall exclude the payment by Bmax of any damage.
Furthermore, Bmax cannot be held liable by the Customer for any consequential losses including the loss of turnover or profits, the loss of contracts, the loss of data, the interruption of use, data unavailability or the purchase cost of substituting products, whether due to breach of contract, a warranty, condition, tortious action, strict liability without fault, Bmax's application of public order legal provisions, or on any other grounds.

Any breach of any provision of these General Terms and Conditions authorizes Bmax to suspend any new deliveries and/or to immediately terminate ipso jure, without any further formality being required, ongoing agreements, by simple notice to the Customer by registered letter with acknowledgment of receipt.

This Agreement is governed by French law.
The parties give hereby attribute exclusive power of jurisdiction to the commercial Court of Toulouse to settle all disputes relating to entering into, interpreting, performing and ending the Agreement, regardless of the places of delivery and the method payment.

A force majeure event is that usually recognized by French case law and French courts. Neither party shall be held responsible for any delay or breach of its contractual obligations resulting from a force majeure event.
Within five (5) days of the occurrence of a force majeure event affecting the ability of a party to perform its obligations, the latter shall inform the other party by any means, and if possible provide an estimate time limit during which this force majeure event will affect the performance of its obligations.
In such case, the performance of the obligations affected by this event will be suspended for the duration of the event. The parties will meet to determine the conditions under which the performance of contractual obligations affected by this event could resume.
If the event lasts for more than two (2) months, this Agreement may be terminated by a notice of termination sent by one party to the other subject to one (1) month's advance notice.

The fact that a party does not prevail of a breach by the other party does not constitute a waiver of prevailing of other breaches, subsequently or otherwise.

If any Agreement stipulation, whether partially or totally, is declared to be invalid or without effect by the competent legal authorities, the said stipulation shall be performed so far as possible or authorized and the Agreement will be amended, as required in order to provide maximum effect to the initial parties intentions and to the Agreement's economy. Remaining stipulations will continue to be enforceable.

The Customer shall not be entitled to transfer the Agreement or any order placed in performance hereof. The Customer shall not be entitled to delegate the said Party's obligations under the Agreement without Bmax's prior written authorization; the latter will not be entitled to refuse without valid reason.

Bmax shall freely assign all or part of its rights and obligations resulting from the order to an affiliated company, without the Supplier’s consent. An affiliated company, for the needs of this article, is:

• a legal entity controlled directly or indirectly by Bmax or
• a legal entity which controls directly or indirectly Bmax or
• a legal entity which is jointly controlled directly or indirectly with Bmax.

Such control is defined in Article L. 233-3 of the French Commercial Code.

No amendment of the Agreement shall be binding on the Parties as long as it has not been specified in a written document signed by each representative of the Parties.

Bmax's guarantee is subject to compliance with the conditions of payment and covers only the manufacturing defects of the Products.
The guarantee period starts as from the date of implementation and, at the latest, three (3) months after the date of the delivery of the Products.
The implementation of the guarantee is not likely to extend the guarantee deadline.
The term of the guarantee applicable to the Products is that indicated in the sales offer signed by the Customer.
The guarantee of Bmax's Products is limited to the replacement or to the repair in the Bmax's workshops of the parts recognized defective returned free of charge by the Customer, excluding any material or immaterial, direct or indirect damages.
The possible intervention of Bmax's employees at the premises where the Products are used will be subject to a prior agreement between Bmax and the Customer.
Travel and accommodation costs incurred by Bmax for an on-site intervention will be invoiced by Bmax to the Customer.
The guarantee applies only in the event that the Products have been subject to a normal use and normal supervision and maintenance.

Nevertheless, the guarantee does not apply to:

• Replacements or repairs resulting from the normal wear and tear of the Products;
• Damages or injuries arising from negligence, lack of supervision and maintenance or of an improper use of the Products.

In addition, the guarantee will cease if the Customer proceeds to self-repairs or modifications on the sold Products.
The Customer shall check whether the characteristics of the ordered Products meet the intended use.
Even in the event that Bmax's services have assisted the Customer in the solution of his problem, the latter remains the ultimate decision maker and is held liable of its own choice.
The guarantee never covers the production losses, the damages caused to products, the subsequent losses including the losses relating to unemployment, unperformed profit, stocked goods, etc.
Bmax recommends to the Customer to keep in stock the most common spare parts that Bmax can provide upon simple request from the Customer.