GTC

METROPOLITAN FRANCE ONLY

OPAL DEMETZ

24 Avenue Joannes Masset

CS30739

69257 Lyon Cedex 09

JANUARY 2022

1. GENERAL

These general terms and conditions codify the commercial practices of the French ocular optics industry. They comply with the rules of contract law and competition law, and are inspired by those of GIFO (Groupement des Industriels et Fabricants de l'Optique), whose trade-union CGV n° 2009012465 is filed with the Bureau des Expertises et des Usages of the Greffe du Tribunal de Commerce de Paris, and on which depends SIDOL (Syndicat des Importateurs et Distributeurs en Optique Lunetterie), of which OPALDEMETZ is a member.

In accordance with Article L441-6 of the French Commercial Code, resulting from the Dutreil Law of August 2, 2005 and the French Law on the Modernization of the Economy n°2008-776 of August 4, 2008, the general terms and conditions of OPALDEMETZ, hereinafter referred to as "the Supplier", constitute the basis of commercial negotiation. These general terms and conditions apply to all contractual relations between "the Supplier" and the customer company hereinafter referred to as "the Customer", and prevail over any document not expressly accepted. Any derogation must be expressly accepted in writing by the Supplier, and may give rise to compensation.

These general conditions apply to all DEMETZ SAFETY products which are subject to specific conditions listed in paragraph 10.

These general terms and conditions are governed by sales law when they apply to the supply of standard products (in particular, any type of product presented in a catalog). They are governed by contract law when they apply to the manufacture of a product based on a specification or to the provision of a service.

For the purposes of these terms and conditions, "writing" means any document drawn up on paper, electronically or by fax. In view of the investments involved, the use of EDI-type electronic transactions is not part of the offer, unless otherwise indicated.

The customer's request to use such means, not included in the offer, may give rise to negotiation and compensation.

2. CONTRACT FORMATION

2.1 Ordering

The contract is only formed subject to acceptance of the order by the Supplier by any means.

The Supplier reserves the right to refuse or modify the order by notification by any means. Any order accepted by the Supplier shall be deemed to imply acceptance by the Customer of the Supplier's offer. The order must specify the designation of the product, the quantities, the price list in force on the date of the order and the lead times. Our prices are per piece and exclusive of tax.

2.2 Conditional ordering

Orders subject to conditions are for measurement and leak testing only:

- diving masks

- ball sports glasses,

- swimming goggles

- outdoor glasses for base 8 vision adaptation

Only conditional orders can be returned, provided that the 15-day return period is respected and that the goods are returned in their original packaging.

2.3 Order modification or cancellation

Any modification of the order requested by the Customer is subject to the Supplier's express acceptance. The order expresses the Customer's irrevocable consent; it cannot therefore be cancelled, unless the Supplier has given its express prior consent. In this case, the Customer shall compensate the Supplier for all costs incurred and for all direct or indirect consequences arising therefrom. In addition, the deposit already paid shall be retained by the Supplier.

2.4 Opening and maintaining an account, financial situation

The Supplier reserves the right to make the opening and maintenance of an account conditional upon the Customer providing accounting, financial and legal documents and, where applicable, guarantees. The Supplier reserves the right to demand payment in full or in part at the time the order is placed, if the customer's financial situation so warrants.

3. PROFESSIONAL QUALITY OF SPEAKERS

The supply of products, in particular optical eyewear, sunglasses and sports eyewear, masks, safety eyewear with or without correction to retail opticians, distributors and end-users, whether in their own name or as part of a company, is subject to compliance by these opticians with the conditions governing the exercise of their profession as laid down by law, and in particular articles L4362-1 to L4362-9 of the French Public Health Code, as well as any regulations issued by the health authorities. The supplier reserves the right to cease all commercial relations if its products are not sold to the public by authorized persons and under the conditions stipulated by the regulations.

4. COMMERCIAL POLICY

When the Customer is a retailer, he undertakes to sell only at his point of sale, at retail and to direct consumers, and in compliance with the regulations applicable to the products.

The customer shall refrain from carrying out promotional operations (sales, discounts, promotions, etc.) on products supplied under the Supplier's brand without the Supplier's express prior consent.

Technical guides, catalogs, quotations, conditions and prices given at the customer's request do not constitute an offer: they are given for information only and represent prices in euros, exclusive of tax, per unit, packaging and postage due. They are subject to change without notice. Prices apply to supplies and deliveries in France and DOM TOM. The Supplier reserves the right to change the technical characteristics of the products supplied without prior notice to customers.

5. SHIPPING - DELIVERY

5.1 Terms of delivery

Free postage and packing requires a minimum of €150 (excl. VAT) per order and a minimum of €300 (excl. VAT) per order for DEMETZ SAFTY products. Unless a specific stipulation is expressly notified or accepted by the Supplier, delivery is made either by direct handover to the Customer, or by simple notice of availability, or by delivery in the Supplier's factories or warehouses to a shipper or carrier designated by the Customer or, in the absence of such designation, chosen by the Supplier.

Consequently, the risks are transferred to the Customer upon delivery, without prejudice to the Supplier's right to invoke the benefit of the reservation of title clause. Whatever the conditions of transport, the products travel at the risk and peril of the consignee, carriage to be paid by the Customer. It is the customer's responsibility to make the necessary reservations with the carrier within the required time limits at the time of receipt, the inspection of the products remaining at the customer's expense.

Any delivery note not contested in writing within 10 days of receipt, by registered letter with acknowledgement of receipt, is deemed to fully satisfy the customer's request. In accordance with legal provisions, any defect due to transport (damage, shortages, losses, etc.) must be reported to the last known carrier.

5.2 Delivery times

If deadlines are stipulated, they are only indicative and may be called into question in the event of circumstances beyond the Supplier's control or due to the Customer's action or inaction. No delay may give rise to compensation or refusal of products.

6. TERMS OF PAYMENT

6.1 Billing

Orders dispatched are invoiced exclusively by the Supplier. Invoices and credit notes may be the subject of a monthly statement to which any rebates may be charged.

The Customer shall refrain from any unlawful practice of automatic debiting or crediting, and more generally any invoicing of amounts not expressly recognized by the Supplier as being its responsibility.

Any unilateral deduction by the Customer from any of its payments (and in particular, by automatic debits, discounts, rebates or end-of-year bonuses not expressly granted by the Supplier) shall constitute an unpaid invoice and may give rise to the application of penalties for late payment.

To be admissible, any request to rectify an invoice must be made within one month of receipt of the statement, as receivables are portable and non-quantifiable.

6.2 Payment terms and deadlines

Unless otherwise agreed, payment is due on the 30th day following the invoice date:

- by direct debit ;

  • Or by LCR draft drawn directly without acceptance;
  • by bank transfer; - by cheque.

All payment orders must be received by the Supplier before the due date indicated on the invoice or statement.

Any clause or request tending to fix or obtain a payment term in excess of this thirty-day term or the agreed term may be considered abusive within the meaning of article L 442-6-1 JO of the French Commercial Code as amended by the French law on the modernization of the economy no. 2008-776 of August 4, 2008, and is punishable by a civil fine of up to two million euros:

Contractually agreed payment dates may not be unilaterally called into question by the customer for any reason whatsoever, including in the event of a dispute. Advance payments are made without discount unless otherwise agreed.

6.3 Late payment

In accordance with article L441-6 al 12 of the French Commercial Code, as amended by the law on the modernization of the economy n°2008-776 of August 4, 2008, any delay in payment may give rise to the application of late payment interest equal to the most recent refinancing rate of the European Central Bank plus ten points.

Any delay in payment of a due date shall, at the Supplier's discretion, result in forfeiture of the contractual term, with all sums due becoming immediately payable.

In the event of late payment, the Supplier reserves the right to exercise its right of retention, and to immediately suspend deliveries, after formal notice has been served without success within 8 days of receipt. The fact that the Supplier avails itself of one and/or other of these provisions does not deprive it of the right to implement the retention of title clause stipulated in article 7 of these general terms and conditions. Pursuant to Article L 441-6 paragraph 12 of the French Commercial Code, as amended by Law no. 2012-387 of March 22, 2012, applicable as of January 1, 2013, any late payment shall automatically give rise to the payment of a flat-rate indemnity for collection costs of 40 euros excluding VAT (article D 441-5 of the French Commercial Code), as from the first day following the payment date shown on the invoice.

6.4 Purchasing groups

In the absence of any agreement to the contrary, groupings, acting as agents for their members, are responsible in this capacity for paying invoices in the name and on behalf of these members, and for guaranteeing payment on the agreed due dates.

In the event of delay or default by a group in the payment of invoices for which it is responsible, the Supplier reserves the right to claim payment directly from the members.

6.5 Flow notes

Under the terms of article L442-6 l, 8 of the French Commercial Code, it is illegal to "automatically deduct from the amount of the invoice drawn up by the supplier the penalties or discounts corresponding to failure to meet a delivery date or to the non-conformity of the goods, when the debt is not certain, liquid and due, even before the supplier has been able to check the reality of the corresponding grievance". The Customer shall refrain from invoicing or deducting any sum not accepted by the Supplier. Any automatic debit will be treated as unpaid and will give rise to the application of the provisions of the present conditions governing late payments.

7. RETENTION OF TITLE CLAUSE

The Supplier retains ownership of the products delivered until effective payment of the full price in principal and accessory. Failure to pay on any of the due dates may result in the products being reclaimed. These provisions do not prevent the transfer to the customer of the risk of loss or deterioration of the products, or of any damage they may cause, from the date of delivery. The mere delivery of a document creating an obligation to pay (bill of exchange, promissory bill, cheque) does not constitute payment within the meaning of the present clause, the Supplier's original claim on the Customer subsisting with all the guarantees attached to it, including the reservation of title until the said obligation to pay has been fulfilled. The Customer shall refrain from removing any packaging or labels appearing on products in stock and not yet paid for.

In the event of seizure or attempted seizure by a third party, the Customer undertakes to mention the right of ownership and to notify the Supplier without delay.

 

8. RETURNS AND PRODUCT RETURNS

8.1 Returns and returns policy

Products may only be returned or taken back with the express prior written consent of the Supplier. The fact that the Supplier has agreed to a return for a given product does not give the customer the right to obtain a return for other products, even identical ones. To be admissible, the return request must be made within a period of less than 15 days from the date shown on the delivery note for the products to be returned.

Any frames taken back will only be taken back for frames still under warranty and for a maximum of 85% of the net purchase value on the reference invoice.

Products must be returned carriage paid, at the customer's expense and risk, in their original packaging and condition, accompanied by the original delivery note. Any request for a credit note for a product returned incomplete (e.g. strap, screen, plate, packaging or manual missing) will be refused.

8.2 Special cases

In cases where the parties agree to supply trial products, the terms and conditions for their return will be specified in the special conditions. In particular cases of return of products following cancellation of an order or assembly breakage, the Supplier reserves the right to invoice a specific percentage of the value of the product according to its special conditions, or a flat-rate value. To be admissible, any request for the supply of identical products in all respects must be made within a period not exceeding 7 days after the delivery date shown on the delivery note for the broken products. Beyond this period, or in the event of a request for different products, the replacement products will be payable in full.

9. WARRANTIES AND LIABILITY

9.1 Compliance with health regulations governing medical devices

The products covered by these general terms and conditions meet the requirements applicable to them when first placed on the market by the Supplier. They comply with the requirements of European Directive 93/42/EC of June 14, 1993 concerning health and safety, and with Articles R665-1 et seq. of the French Public Health Code insofar as these provisions are applicable to them.

If the Customer intends to resell the products outside the European Economic Area, Switzerland or any other country that has concluded a free trade agreement with the European Union, the Customer must consult the manufacturer beforehand, so that the question of the product's compliance with local regulations can be examined.

The Supplier guarantees to the Customer the conformity of its products to the technical standards for which it has explicitly declared conformity.

Product compliance with an erroneous prescription or order shall not constitute a defect of conformity, a latent defect or a product safety defect attributable to the Supplier. The Supplier is not liable for prescription, measurement or order errors, assembly errors or use of products that do not comply with their intended purpose.

9.2 Warranty

The Supplier warrants the product against defects in materials and workmanship under the following conditions:

The warranty is two years, except for the Henko and Owlet collections where it is one year.

  • The product must be used for its intended purpose;
  • As a general rule, all information concerning the use of products, and in particular the safety rules relating to these products, can be found in the user manual and instructions for use supplied with the product.
  • The Customer must ensure that the Supplier is immediately informed, in writing, of any defects attributed to the product, and provide full justification of the existence of such defects. He must also refrain, except with the express agreement of the Supplier, from repairing or replacing defective products himself or having them repaired or replaced by a third party.

If these conditions are not respected, the Supplier's warranty will be excluded. These conditions do not preclude the application, where applicable, of the legal warranty.

Repairs and replacements carried out within the scope of the warranty do not start a new warranty period and do not extend the original warranty.

The warranty is excluded in the cases of exclusion of liability listed in article 9.3.

Return for unsuitability: Full return (frame + lenses) if manufacturing error or defect. If no defect is found, there is no return of optical lenses, only the unworn frame can be credited. In the event of an order for new equipment, a 20% discount will be granted on the new lenses.

9.3 Limitation of liability

The Supplier's liability shall be limited to direct material damage caused to the Customer as a result of faults attributable to the Supplier in the performance of the contract. The Supplier is not obliged to compensate for the harmful consequences of faults committed by the Customer or third parties in connection with the performance of the contract. Under no circumstances will the Supplier be obliged to compensate for immaterial or indirect damages such as operating losses, loss of profit, commercial prejudice, loss of earnings, etc., which are not covered by the contract.

The Customer guarantees that its insurers or third parties in a contractual relationship with it will waive any recourse against the Supplier or its insurers beyond the limits and exclusions set out above. Liability is excluded:

  • For the consequences of using a product with an apparent defect;
  • If the malfunction is due to normal wear and tear;
  • If the defect is the result of force majeure as defined in Article 11, negligence, misuse or lack of maintenance on the part of the Customer, or unauthorized intervention on the goods by the Supplier;
  • In the event of an error or incorrect recommendation in the choice of products by the customer or any other third party involved;
  • If the customer fails to comply with the rules and standards applicable to him under Directive 93/42 of June 14, 1993;
  • In the event of assembly or handling errors, lens inversions, refraction errors, etc. ;
  • In the event of failure to comply with the Supplier's instructions and recommendations.

9.4 Penalties

Where penalties and indemnities have been mutually agreed, they have the value of lump-sum, final compensation and are exclusive of any other penalty or indemnity.

9.5 Customer information obligation

The Customer undertakes to provide the end user of the product with the information required by European Directive 93/42/EC, insofar as this is applicable to the said product. This information is included in the User Guide, which is sent to any Customer who requests it.

He must inform his own customers of the product's characteristics, the conditions for correct use of the product and the need for any medical check-ups. The provision of this information is the sole responsibility of the customer. The customer shall inform his customers of the warranty conditions.

10. SPECIFICS FOR THE DEMETZ SAFETY BRAND

10.1 Shipping - Delivery

Terms of delivery

Free postage and packing is subject to a minimum order value of €300 (excl. VAT).

10.2 Warranties and liability

Compliance with health regulations governing medical devices

Personal protective equipment (PPE) complies with the safety requirements of European Directive 89/656/EC and is approved to EN166, EN170 and EN172 standards by an accredited independent body.

Legal warranty of conformity

DEMETZ SAFETY certified products benefit from the legal guarantee of conformity as defined in articles L. 217-4 to L. 217-14 of the French Consumer Code.

Any other warranty on a DEMETZ SAFETY product can only be made with the express, prior and written agreement of the Supplier. This will be considered on a case-by-case basis.

11. FORCE MAJEURE

Neither party to the contract may be held liable for its delay or failure to perform any of its obligations under the contract if such delay or failure is the direct or indirect effect of a case of force majeure understood in a broader sense than French case law, such as :

  • Occurrence of a natural cataclysm ;
  • Earthquake, storm, fire, flood, epidemic, etc. ;
  • Armed conflict, war, civil strife, terrorist attacks, labor disputes, total or partial strikes at the Supplier's or Customer's premises or in the transport sector;
  • Labor disputes, total or partial strikes by suppliers, subcontractors, service providers, transporters, postal services, public services, etc.; - Compulsory orders from public authorities (import bans, embargoes); - Operating accidents, machine breakdowns, explosions.

Each party shall inform the other without delay of the occurrence of any case of force majeure of which it is aware and which, in its opinion, is likely to affect the performance of the contract.

If the duration of the impediment exceeds 21 working days, the parties must confer within 5 working days of the expiry of the 21 working day period to examine in good faith whether the contract should be continued or terminated.

12. TERMS AND CONDITIONS FOR THE USE OF TRADEMARKS AND ADVERTISING PRODUCTS

The business relationship established between the Supplier and the Customer does not give the Customer any right to the Supplier's trademarks or other distinctive signs. Any use by the Customer of these trademarks and other distinctive signs must obtain the Supplier's prior written approval. The use by the Customer of these trademarks and distinctive signs on commercial documents, such as letterheads and business cards, as well as telephone directories, advertising material, websites and professional directories, is subject to the Supplier's prior and express approval.

Any sale of counterfeit goods and/or goods whose resemblance to those of the Supplier (product itself, packaging, brand name, logos, etc.) is likely to cause confusion in the mind of the public is prohibited.

Failure to comply with the above provisions may result in suspension of deliveries and/or legal proceedings.

13. CONFIDENTIALITY AND RESPECT FOR INTELLECTUAL PROPERTY RIGHTS

The Customer undertakes to respect all of the Supplier's intellectual property rights over its products.

In general, all intellectual property rights, as well as the know-how incorporated in the products delivered and the documents transmitted (in particular studies, projects, prototypes) remain the exclusive property of the Supplier. Any transfer of intellectual property rights or know-how must be the subject of a contract with the Supplier. The parties reciprocally undertake a general obligation of confidentiality covering all confidential oral or written information, whatever it may be and whatever the medium (discussion reports, plans, exchanges of computerized data, activities, projects, know-how, products, etc.) exchanged within the framework of the preparation and execution of the contract, with the exception of information which is generally known to the public or which may become so through no fault of the Customer.

 

Consequently, the parties undertake to :

-To keep all confidential information strictly secret, and in particular never to disclose or communicate, in any way whatsoever, directly or indirectly, all or part of the confidential information, to anyone whatsoever, without the prior written authorization of the other party;

-Not to use all or part of confidential information for any purpose or activity other than the performance of a contract;

-Do not copy or imitate all or part of confidential information.

 

The Customer undertakes to take all necessary measures to ensure compliance with this obligation of confidentiality, throughout the duration of the contract and even after its expiry, and undertakes to ensure that all its employees comply with this obligation. This obligation is an obligation of result.

14. ELECTRICAL AND ELECTRONIC WASTE

In the event that the equipment sold is professional electrical and electronic equipment covered by decree no. 2005-829, transposing directive 2002/96/EC of January 27, 2003, the parties will stipulate in the contract the terms and conditions for the collection, treatment and disposal of the waste covered by these texts. Failing this, the Customer will be responsible for financing and organizing the disposal of such waste.

15. SETTLEMENT OF DISPUTES AND APPLICABLE LAW

In the event of any dispute arising from this contract, in particular concerning its validity, interpretation or performance, the parties agree to attempt to settle their differences amicably before bringing the matter before the Lyon Court, which has sole jurisdiction.

 

In the absence of an amicable agreement, it is expressly agreed that any dispute relating to the contract will fall within the exclusive jurisdiction of the LYON court in the Supplier's place of residence, even in the event of appeal or multiple defendants.

 

Only French law is applicable.