Preamble

These General Conditions of Sale (hereinafter referred to as the “GTC”) are applicable to all sales of products (hereinafter the “KineQuantum Medical Device”) and services provided by the company KineQuantum SAS. The T & Cs are supplemented by the General Conditions of Use (hereinafter referred to together as the "T & Cs"), which are available and searchable when opening the software object of the KineQuantum Medical Device. In the context of a sale of the KineQuantum Medical Device, the CGV-CGU, as well as the commercial provisions and conditions contained in the quote proposed by KineQuantum SAS to the Customer, and accepted by the latter, constitute the final and complete agreement concluded between the Parties, and express all the reciprocal commitments of the Parties (hereinafter referred to as the “Transaction”). The CGV-CGU apply regardless of the clauses appearing in the Customer's documents, in particular the general purchasing conditions.

Article 1. Definitions

“Customer” designates any natural or legal person who purchases a KineQuantum Medical Device.

“KineQuantum Medical Device” means the Software offered by the Client to a third party for therapeutic purposes (the third party being referred to as the “Patient”). This term also designates the brochures, documentation, manuals and update options referenced by KineQuantum SAS in the quote sent to the Customer. This term includes the “Products”, that is to say the hardware, accessories, supplies and computer equipment which accompany the software in the quotation sent to the Customer, when they are supplied with the Software. These materials make it possible in particular to supervise and promote the use of the Software for the Customer. These materials may include products purchased from a third party and whose regulatory compatibility (safety in particular) with the KineQuantum Medical Device has been validated by KineQuantum SAS (“Validated Third Party Products”).

"KineQuantum SAS" means the company KineQuantum, a simplified joint stock company with a share capital of 4,948.72 Euros, registered with the RCS Créteil under number 814 417 424 00029, whose registered office is located at 5 avenue du Général de Gaulle 94160 Saint- Mandé, France, VAT number: FR85814417424 - Créteil.

"Installation" means the installation of the KineQuantum Medical Device at the Customer's, within the limits of the services agreed in the quote or the order form.

“Software” designates the physiotherapy rehabilitation assistance program (s) created and developed by KineQuantum SAS.

"Delivery" means the physical delivery of the KineQuantum Medical Device to the Customer or his agent at the delivery address indicated on the quote or order form.

"Maintenance" means the maintenance of the KineQuantum Medical Device, updates, telephone support and remote control of the Software, and any assistance service provided by KineQuantum SAS. 

"Parties" means the company KineQuantum SAS and the Customer.

“Non Validated Third Party Products” means products purchased by the Customer from a third party in the Transaction, and for which compatibility with the KineQuantum Medical Device has not been validated by KineQuantum SAS.

Article 2. Use of the KineQuantum Medical Device

2.1 The conditions of use of the KineQuantum Medical Device, considered as a medical device within the meaning of European Directive 93/42, are as follows: the use must respect the use recommended by the manufacturer, that is to say medical use, as indicated in the user manual of the medical device. The Customer, operator of the medical device, must ensure that it is used in accordance with the instructions in the user manual, and must not make any other use of it. 

2.2 The Customer must read the information detailed in the user manual in order to ensure correct and safe use of the device, and to be able to transmit to the Patient, if necessary, the correct information on its use. 

2.3 Online training is offered by KineQuantum SAS to the Customer prior to the Installation of the KineQuantum Medical Device, in order to facilitate the use of the medical device by the Customer.

2.4 The IT equipment that can be supplied with the KineQuantum software comprises in particular (non-exhaustive list): a computer (central unit and screen), a virtual reality headset, controllers, a base station (monitoring of the game), trackers (accompanied by straps to place on different parts of the body), an Audio Strap (including comfort headband with integrated headphones), hygienic washable foams, a mobile pedestal table or a computer cabinet, or cleaning wipes and disinfectants.

2.5 Having a wired internet connection or wifi is a prerequisite that must be respected by the Customer so that he can use the KineQuantum Medical Device.

Article 3. Price and payment

3.1. The prices of the items ordered as part of the Transaction are expressed in Euros inclusive of all taxes ("TTC").

3.2. The Customer will pay, by check or bank transfer, to KineQuantum SAS or to one of its agents, in particular a third-party approved legal entity such as a financing organization, the payment of the amount provided for under the Transaction. The payment terms are those indicated in each quote issued by KineQuantum SAS.

3.3 The payment of a deposit of 30% of the total amount including tax of the Transaction may be requested from the Customer, and must be paid to KineQuantum SAS within the deadlines indicated in the estimate, and the remaining amount must be paid to KineQuantum SAS when the Delivery of the KineQuantum Medical Device.

3.4 The Client can also subscribe to financing, involving a financing contract with a third-party approved legal entity offered by KineQuantum SAS. In this specific case, the payment terms remain subject to the contract signed between the financing organization (hereinafter referred to as the “Financing organization”) and the Client (hereinafter referred to as the “Financing contract”).

3.5 The payment terms are indicated in each Transaction. Otherwise, payment is made in cash within fifteen (15) calendar days from the date of the invoice issued by KineQuantum.

3.6 In the event of direct payment to KineQuantum SAS, and not to a Funding Organization, any late payment of an amount owed by the Customer to KineQuantum SAS, will become immediately payable. Late penalties amounting to three times the legal interest rate will be due, without a reminder being necessary, from the day following the date of payment appearing on the invoice, as well as a global and lump sum indemnity of forty (40) Euros for recovery costs, as provided for in article D 441-5 of the French Commercial Code.

3.7 The sale of all or part of the KineQuantum Medical Device and Maintenance services, the price of which has not been fully paid, may be either suspended or declared automatically terminated. KineQuantum SAS may proceed to any set-off between its receivables and its debts towards the Customer.

Article 4. Acceptance and formation of the sale

4.1 The sales are perfect, at the choice of KineQuantum SAS, either (i) after signature or written acceptance of the KineQuantum SAS estimate by the Customer, on any tangible or intangible medium, or (ii) after signature of the Financing Contract between the Customer and the funding body with which KineQuantum SAS works.

4.2 After the Customer has signed the KineQuantum SAS quote, the latter is considered to be engaged in the Transaction and forced to purchase the KineQuantum Medical Device. Nevertheless, KineQuantum SAS reserves the right to consider the sale as null and void if the Customer does not manage to obtain financing from the Financing Organization, under the conditions provided for in the Financing Contract. KineQuantum SAS will be informed of the Client obtaining financing upon receipt of the Financing Agreement or purchase order by the Financing Organization, at the latest within six (6) months following the signature of the quote. by the customer.

Article 5. Delivery and installation

5.1 Given the nature of the Products, KineQuantum SAS may be required to modify the delivery time indicated in its offer or in the initial estimate (s), without this modification being able to result in the payment of any compensation or penalty.

5.2 When the Installation is included in the purchase price of the KineQuantum Medical Device, it is carried out by KineQuantum SAS or by one of its service providers, in the presence of the Customer or his representative to whom, as soon as the technical tests KineQuantum Medical Device standards have been successfully completed, KineQuantum SAS submits the corresponding Installation Report for signature.

5.3 If the Customer does not attend the Installation and is not represented there, or if the Customer does not return the countersigned Installation Report to KineQuantum SAS, the Installation is deemed to have been acquired as of right. term of a period of eight (8) calendar days from the date of successful Installation by KineQuantum SAS.

5.4 All work necessary and prior to the installation of the KineQuantum Medical Device will be the responsibility of the Customer and will be undertaken by the latter under his sole responsibility.

5.5 Under no circumstances can KineQuantum SAS be held liable for use of the KineQuantum Medical Device by the Customer between Delivery and Installation. KineQuantum SAS assumes that the Customer's Installation site does not contain any hazardous substances or equipment. Otherwise, it is the Customer's responsibility to take all useful measures at their own expense for the removal of such equipment and substances.

Article 6. Transfer of ownership, risks and insurance

6.1 Unless the Customer decides to take charge of the Delivery to the address of his choice, the risk is transferred when the KineQuantum Medical Device is unloaded at the Delivery address indicated on the quote or the invoice issued by KineQuantum. SAS.

6.2 If the Customer decides to take charge of the Delivery to the address of his choice, the risk is transferred when the KineQuantum Medical Device is handed over to the forwarder chosen by the Customer.

6.3 The Customer will assume all risk of loss, damage, destruction, liability or damage of any kind to the KineQuantum Medical Device delivered, which it will be up to him to insure at replacement value as new on the day of the loss. The insurance of the KineQuantum Medical Device must be effective from its date of Delivery and until its full payment. Insurance policies must stipulate that the subscriber acts both on his own behalf and on behalf of the owner and ensure the payment of any indemnity in his hands. The Customer must also ensure the installation site of the KineQuantum Medical Device.

6.4 In addition, ownership of the KineQuantum Medical Device sold to the Customer will only be transferred to him upon full payment of the price owed by the latter in respect of the Transaction.

Article 7. Guarantee

7.1. The duration of the KineQuantum SAS warranty, and the warranty extension if applicable, is specified in the quote sent and validated by the Customer. The warranty applies to the entire KineQuantum Medical Device, except for consumable products (foam type). KineQuantum offers a standard warranty of one (1) year from the date indicated on the invoice provided to the Customer. The Customer will have to pay a supplement, indicated in the quote or the KineQuantum SAS offer, if he wishes to benefit from an extension of the warranty period.

7.2 The KineQuantum SAS warranty includes the "Additional updates and maintenance subscription", with the Maintenance of the KineQuantum Medical Device, the repair or replacement of all or part of the KineQuantum Medical Device, in particular in the event of breakage or malfunction of the KineQuantum Medical Device and / or the Products alone, at the sole discretion of KineQuantum SAS.

7.3 The warranty is subject to the condition that KineQuantum SAS receives, during the warranty period, a written notification from the Customer, describing the defect, within 15 (fifteen) calendar days of its discovery, and, at the request of KineQuantum SAS, that the defective Products are returned to the address indicated.

7.4 The warranty does not apply to defects caused by (i) use or operation of the Products other than that provided or recommended by KineQuantum SAS, (ii) modifications made to the Products by any individual or entity other than KineQuantum SAS, (iii) unusual physical or electrical stress, negligence, abuse, accident, inappropriate inspection or maintenance operations (iv) by a disaster or theft occurring at the KineQuantum Medical Device Installation site, that - this must be covered by the Customer via insurance taken out at his own expense as stipulated in art. 6.3.

7.5 The warranty does not extend to Non Validated Third Party Products. It is the Customer's responsibility to ensure that these goods, which they have acquired from a third party, are compatible with the KineQuantum Medical Device.

Article 8. Liability

8.1 Given the state of the art in use in its profession, KineQuantum SAS, which undertakes to take all possible care in the performance of its obligations, is subject to an obligation of means.

8.2 The KineQuantum Medical Device will be used by the Customer under his sole control, direction and under his sole responsibility, within the meaning of article 1282 of the Civil Code. The Customer is the custodian of the KineQuantum Medical Device, and is deemed competent, in the context of his professional practice, for its use; thus, KineQuantum SAS cannot be held responsible for the deterioration or destruction, total or partial, of it.

8.3 The maximum overall liability of KineQuantum SAS for any prejudice or reason whatsoever, including its tort liability and that linked to any violation of the Transaction or of a guarantee, resulting from or in the context of the sale of the KineQuantum Medical Device and / or the Products, whether it is liability without fault or of any kind, may in no case exceed the sums paid during the twelve (12) months preceding the loss by the Customer in return for the Medical Device. KineQuantum and / or Products (both to KineQuantum SAS and to any Funding Organization intervened with the Customer on behalf of KineQuantum SAS). The responsibility of KineQuantum SAS can in no way be engaged for any consequential, intangible, special, indirect damage, or for any loss of profits or income resulting from a breach of contract, of the Transaction or of guarantee, of a alleged negligence or no-fault liability. Likewise, KineQuantum SAS cannot be held liable in the event of loss or inability to use medical data stored in the KineQuantum SAS Medical Device, including in the Software.

8.4 If the Patient or a third party inflicts on himself, on others or on material goods, bodily or material damage in the context of the use of the KineQuantum Medical Device, then KineQuantum SAS cannot be held responsible for this. damage, and the Customer will have to engage his own responsibility.

8.5 Under no circumstances can KineQuantum SAS be held liable, both with regard to the Client, to the Patient or to any third party, for any indirect damage such as operating loss, loss of profit or image or any other financial loss resulting from the use or inability to use the KineQuantum Medical Device by the Customer, as well as any loss or deterioration of information.

8.6 If, because of the KineQuantum Medical Device, an action is brought by a third party against the Customer for infringement or violation of an industrial or intellectual property right, the Customer must inform KineQuantum SAS in writing and without delay of this action, as well as as any information about this action available to it. If KineQuantum SAS makes known in writing its decision either to oppose this action in defense, or to negotiate or even to compromise, the Customer must (i) leave complete freedom to KineQuantum SAS to act and compromise at its sole discretion and ( ii) provide KineQuantum SAS with reasonable assistance if KineQuantum SAS requires it. KineQuantum SAS declines all responsibility and the Client will bear all the costs borne by KineQuantum SAS (including, by way of simple example, attorneys' fees) in the event that an action arises from (i) modifications made to the Products by the Customer, (ii) use of the KineQuantum Medical Device or Products that does not comply with its specifications or with the written instructions concerning them.

Article 9. Intellectual property

9.1 KineQuantum SAS remains the sole holder of the property rights on the Software, no property rights are conferred on the Customer, only a right of use is granted to him. The Customer thus has, for his own needs, the personal, non-exclusive, non-assignable and non-transferable right to use the Software within the strict framework of his professional activity, except with the prior express consent of KineQuantum SAS. The “Software License Agreement” defines the license and warranty conditions applicable to the Software.

9.2 The Software is proprietary or non-free software. Thus, as provided for in article 122-4 of the Intellectual Property Code, any representation or reproduction, in whole or in part, of the Software, made by anyone, without the consent of KineQuantum SAS, is illegal. It is the same for the translation, the adaptation or the transformation, the arrangement or the reproduction by any art or any process.

Article 10. Materiovigilance

The Customer must take the necessary measures to meet the legal requirements relating to the traceability of the KineQuantum Medical Device as well as material vigilance, listed in Articles L 5212-1 to L 5212-3 and R5212-35-1 to R5212-35-6 of the Public Health Code. As such, in the event of transfer of the KineQuantum Medical Device to a third party, the Customer must establish a certificate justifying the regular maintenance and the maintenance of the performance of the medical device concerned, under penalty of incurring the penalties provided for in article L. 5212-1 paragraph 4 of the Public Health Code. In the event of transfer of the KineQuantum Medical Device to a third party, the Customer must inform KineQuantum SAS of this transfer of ownership, and ask this third party if their contact details can be transmitted to the representatives of KineQuantum SAS.

Article 11. Recycling of end-of-life products

In accordance with article R543-196 of the Environmental Code, KineQuantum SAS has joined Ecosystem, an eco-organization approved by decree. KineQuantum SAS transfers to Ecosystem the obligations arising from Title I of Article R 543-195. Ecosystem offers a collection and recycling service through a national network of partner collection points ( https://www.ecosystem.eco/ ). In the event of transfer of ownership and / or possession of the KineQuantum Medical Device, all the provisions of this article 11 will apply to their successive owners and / or holders. The Customer will be responsible for the disposal of waste resulting from the packaging of the Products, according to the disposal methods authorized by decree.

Article 12. Force majeure

The responsibility of KineQuantum SAS can not be engaged in the event of default or delay in execution due to a Case of Force Majeure. “Force majeure” means and includes any circumstance beyond the reasonable control of KineQuantum SAS, as a result of which the latter cannot be reasonably held to perform its obligations. Such circumstances or occurrences include, but are not limited to, wars, insurgencies, strikes, fires, floods, earthquakes, labor disputes, epidemics or pandemics and their mutations, embargoes, restrictions or government regulations, in law or in fact. , among others the failure to obtain an export or import permit, shortcomings or delays of KineQuantum subcontractors, and / or inability or inability to provide transport. The period of performance is extended by the period reasonably necessary to overcome the consequences of the delay in performance arising from the Case of Force Majeure. If a Force Majeure Event continues beyond four (4) months, each Party is entitled to terminate the Transaction immediately by written notification, without incurring any liability.

Article 13. Confidentiality

All technical, commercial and financial data to which the Parties have access in the context of the execution of the Transaction are of a confidential nature. The recipient may not disclose confidential information to a third party or use it for any other purpose than those specified in this Transaction, as agreed by the Parties. This clause remains applicable even after the termination of the Transaction.

Article 14. Applicable law and competent court

The Transaction is interpreted and applied in accordance with French law, without taking into account conflict of laws rules. In the event of a dispute, the parties will attempt to settle the dispute amicably. In the absence of an amicable settlement, disputes arising from the operation, marketing or use of the KineQuantum Medical Device will be submitted to the competent court to which the registered office of KineQuantum SAS falls.