Centre de conformité Digitsole

TERMS OF SALE for DIGITSOLE PRO AND Software as a Service (SaaS) 

Article 1 Object and Scope of this terms of Sale

Any Sales order of Digitsole Pro devices and subscription to SaaS implies the acceptance without reserve by the customer of the present Terms of Sales which prevail over any other document of the customer (the professional that purchases Digitsole Pro devices and subscribes to SaaS), and in particular over any other General Terms and Conditions of purchase. These Terms of Sales apply to all sales of Digitsole Pro devices and SaaS that is linked to it. (“the Product”)

 

The present Terms of Sale are available on our compliance center (https://compliance.digitsole.com). They determine the rules that applies between the PROVIDER (DIGITSOLE, the original PROVIDER of Digitsole Pro device and SaaS connected to device) , as well as any SELLER (anyone who sells or distributes the Product to the Customer), and the Customer for the purchasing of the Product.

Present Terms of Sale, as well as the User manual & Technical documentation ( PS_0001_IFU_000 ) [as referred as the User manual], Term of Use for Digitsole Pro and SaaS (Terms of Use), Data Processing Agreement (DPA, it is a legally binding contract that states the rights and obligations of each party concerning the processing and protection of personal data according to the applicable Privacy regulation and Privacy Policy altogether define the rules that apply to the contractual relationship between the PROVIDER, as well as any SELLER (anyone who sells or distributes the Product to the Customer), and the Customer.

For that reason, t he customer who places his sale order (on paper, or online) is deemed to have read and accepted: the present Terms of Sales as well as the User manual, the Terms of Use for Digitsole Pro and SaaS, DPA and Privacy policy. They can be consulted at any time on PROVIDER’s compliance center (https://compliance.digitsole.com)

The PROVIDER reserves the right to derogate from certain clauses herein, depending on the negotiations carried out with the customer, by drawing up special conditions of sale.

Term of Sale can be modified at any time by DIGITSOLE to take into account any legal, regulatory, jurisprudential and / or technical developments. The version that applied to contractual relationship is always the one that has been accepted at the time the Customer’s Sale Order and has been confirmed by PROVIDER. New version of Terms of Sale will be notified and must be explicitly approved by Customer in order to be able to continue to use SaaS.

The Customer is expressly informed that the latest the version of the Term of Sale is available on PROVIDER’s compliance center.

Article 2 –Digitsole Pro and SaaS descriptions

The description of Digitsole Pro device is provided in the User manual & Technical documentation ( PS_0001_IFU_000 ) [as referred as the User manual] and the description of SaaS connected to Digitsole Pro device is provided in the Term of use for Digitsole Pro and SaaS.

Article 3 – Sale order

The customer places his order on a sales order (on paper or online) .

Any order implies acceptance by Customer of the prices and descriptions of the products.

The customer must specify on the order the address and the delivery method.

A sale is definitively concluded only after the express acceptance of the customer's order by the PROVIDER. Acceptance of the Sale Order will result in the sending of a confirmation e-mail. As soon as it is sent it has an irrevocable character.

Any dispute on this point will be dealt with in the context of a possible exchange and the guarantees mentioned below.

In certain cases, including non-payment, incorrect address or other problem on the customer's account, the PROVIDER, or the SELLER reserves the right to block the customer's order until the problem is resolved.

In case of unavailability of an ordered product, the customer will be informed by e-mail.

The cancellation of the order of this product and its possible refund will then be carried out, the remainder of the order remaining firm and definitive.

For any question relating to the follow-up of an order, the customer must contact the Sales representative or customer services.

Article 4 – Modification of the order

An order is not cancelable without PROVIDER’s express and written approval.

Customer can upgrade or include other option at anytime by filling a new sale order.

 

Article 5 – Price

The prices and any tax related information are given in the currency specified on the Sales Order form.  The prices are those fixed at the time when the sales order is sent for acceptance to PROVIDER. PROVIDER cannot modify its prices during the committed period specified in the sales order.

However, the PROVIDER may revise the pricing of renewal of the subscription or new purchases of Digitsole Pro devices.

The PROVIDER may decide to adapt its prices to align to national index changes.

Prices are quoted with free shipping, unless expressly agreed otherwise with the customer.

The fact that the shipment is carried out "free of charge" or that the SELLER or a commission agent has carried out the shipment of the order on behalf of the customer does not alter the above rules and the effects attached to the date of the availability of Digitsole Pro device.

They are calculated net, without discount, and payable according to the terms below.

Article 6 – Means of Payment and invoicing

By providing a means of payment to the SELLER or PROVIDER, the Customer: (i) agrees that he/she is authorized to use the payment method he/she has provided and that the payment information he/she has provided is accurate and correct; (ii) authorizes SELLER or PROVIDER to charge Customer for the product purchased and SaaS Service the Customer chose to subscribe using the payment method.

Customer agrees to update its account and other information promptly, including its e-mail address and credit card number and expiration date, so that SELLER and/or PROVIDER may honor Customer's transaction requests and contact Customer, as necessary, regarding its transactions. Billing may be done (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a regular basis for subscriptions.

Article 7 – Payment for Digitsole Pro device and activation of Digitsole Pro SaaS account

Activation of Customer’s Digitsole Pro SaaS account shall start as soon as Customer provides accurate and correct payment information. Unless agreed differently, Digitsole Pro devices shall only be shipped as soon as full payment as stipulated in the sales order is received by PROVIDER.

Article 8 Payment of subscription Fees for SaaS.

Article 8.1 Subscription fees.

In consideration of the Services provided by PROVIDER, Customer shall pay subscription fees set forth in the order form in accordance with this article 8.

Article 8.2 Taxes.

Subscription fees for the payment of the services, specified in the sales order form, include taxes imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder. The Customer is required to remit taxes on its own when it is explicitly mentioned on the invoice and/or sales order.

Article 8.3 Payment of subscription fees.

Upon activation of the account, DIGITSOLE grants the Customer a start-up period in the form of a discount equivalent to:

(i) 30% of the first month's subscription, according to the chosen formula, for monthly subscriptions.

(ii) 2.5% of the first year's subscription amount, depending on the formula chosen, for annual subscriptions.

(iii) 0.9% of the subscription amount for the cycle, depending on the formula chosen, for three-year subscriptions.

Changes to the current subscription will not entitle the subscriber to an additional discount.

This discount only applies to the first subscription. Renewal of the subscription does not give the right to a new discount.

The payment for subscription fees occurs periodically (monthly, yearly or 3-yearly) as defined in the sales order and are payable at the start of every period. Subsequent subscription payments must be made no later than the day after each subscription period. Customer shall make all payments hereunder in the currency specify in the Order form by credit card payment, or bank transfer. Customer shall make payments to the address or account specified in the Order form or such other address or account as PROVIDER may specify in writing from time to time.

Article 8.4 Late Payment.

If Customer fails to make any payment when it is due:

(a) PROVIDER may charge interest on the past due amount at the rate of 15% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law.

(b) Customer shall reimburse PROVIDER for all costs incurred by PROVIDER in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and

(c) if such failure continues for FIVE days following written notice thereof, PROVIDER may suspend performance of the SaaS until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.

Even in case of termination due to late of payment or fail of payment the Customer shall pay the subscription for the period.

Article 8.5 Recovery cost

In the event of late payment, the PROVIDER may request additional compensation from the Customer if the collection costs actually incurred exceed this amount, upon presentation of the relevant documents.

Article 8.6 No Deductions or compensation.

All amounts payable to PROVIDER under this Terms of Sales shall be paid by Customer to PROVIDER in full without any compensation, deduction, other than Service Credits issued pursuant to Section 5.2 of Terms of Use.

Article 9 – Shipment and delivery of Digitsole Pro device

The goods are delivered to the customer to the address indicated by the customer on the sales order form. Date of delivery is provided for information only and is therefore not guaranteed. Therefore, any reasonable delay in the delivery of the goods does not allow the customer to benefit from damages, or cancellation of the order.

 

The risk of transport is entirely at the expense of Digitsole. In case of missing or damaged goods during transport, the customer is required to make the necessary reservations and confirm them according to the law that applied to him.

Once delivered, the Customer shall comply with User Manual and Terms of Use.

Article 10 – Transfer of rights to use Digitsole Pro devices

Transfer of rights to use Digitsole Pro device shall only take place after the complete payment of the price by the customer, regardless of the delivery date.

 

Article 11 – Receipt of Products

Without prejudice to the measures to be taken by the customer with regard to the carrier as described above, in the event of apparent defects or shortages, any complaint, whatever its nature, concerning the products delivered, shall only be accepted by the PROVIDER if it is made in writing, by registered letter with acknowledgement of receipt, within the period of three (3) days provided for above.

It is up to the purchaser to provide all the justifications as to the reality of the defects or shortages noted.

No return of goods may be made by the customer without the express prior written agreement of the PROVIDER, obtained in particular by fax or e-mail.

The return costs shall only be borne by the PROVIDER in the event that an apparent defect, or shortages, is actually noted by the PROVIDER or its representative.

Only the carrier chosen by the PROVIDER is authorized to return the products concerned.

When, after inspection, an apparent defect or shortage is effectively noted by the PROVIDER or its agent, the Customer may only ask the PROVIDER to replace the non-conforming articles and/or to make up for the shortages at the PROVIDER's expense, without the latter being able to claim any compensation or to cancel the order.

The unconditional acceptance of the products ordered by the customer covers any apparent defect and/or shortage.

Any reservations must be confirmed in accordance with the above conditions.

The complaint made by the Customer under the conditions and according to the procedures described in this article does not suspend the payment by the client of the goods concerned.

The PROVIDER's liability may in no case be called into question for events during transport, destruction, damage, loss or theft, even if he has chosen the carrier.

 

Article 12 Force Majeure.

Neither party will be liable to the other for any failure or delay in the performance of such party’s non-monetary obligations due a Force Majeure Event. That is to say an event beyond one party's control, that could not be reasonably foreseen at the time the contract was concluded and which effects cannot be avoid with appropriate measures, preventing the execution the contract.

Article 13  –Intellectual Property

Article 13.1 Intellectual Property rights on documents

All technical documents, products, photographs given to the Customer remain the exclusive property of DIGITSOLE.

The customers undertake not to make any use of these documents, likely to infringe the industrial or intellectual property rights of the supplier and undertake not to disclose them to any third party.

Article 13.2 Intellectual Property rights on media

The trademarks, logos, signs as well as all the contents of the Provider’s App (texts, images, sound …) and Provider’s website are protected by intellectual property law.

All representation and/or reproduction and / or partial or total exploitation of this trademarks, logo, signs, and any contents on the Provider’s App and website of any nature whatsoever, is totally prohibited without prior and written PROVIDER’s consent.

Article 13.3 Intellectual Property right on product

It is formerly forbidden to open Digitsole Pro device, to transformed them, to copy any part of Digitsole Pro device.

Article 14 Term and Termination.

Article 14.1 Initial Term.

The initial term of this SAAS starts ten days after activation of SaaS. Unless terminated earlier pursuant any provision in the Terms of use and Terms of sales, the contractual relationship will continue in effect until the date specified in the sales order or will be renew pursuant to this section 14.2.

Article 14.2 Renewal Term.

Provided that automatic renewal is permitted in the customer's country and unless contractual relationship is ended according to section 14.3 or where Customer terminate the contract by giving notice, the Services will automatically renew for up to the same period it was initially contracted, and will be charge to the customer.

For a monthly subscription, a four days notice is required to end the Services.

For a  subscription on a yearly basis or more, three weeks before the end of the yearly subscription, PROVIDER will remind the customer that :

(i)                   the subscription will be renewed and payment debit method previously chosen will be used for the renewal.

(ii)                  the customer shall transmit his decision to not renew his subscription fifteen days before the renewal date otherwise the subscription will be renewed for the same period and Customer will be charged for the renewal subscription.

 

Except in situation under section 14.3 Customer can terminate the contract by giving at least one month's notice before the end of the contract.

Article 14.3 Termination.

In addition to any other express termination right set forth elsewhere in this Terms of Sale and Terms of Use:

(a) PROVIDER may terminate this contractual relation, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than FIFTEEN days after PROVIDER's delivery of written notice thereof.

(b) either party may terminate this contractual relation, effective on written notice to the other party, if the other party breaches any of its obligations specify in this Terms of Sale, the Terms of Use (such as Section 3.1, Section 7.3, or Section 9 of Term of Use), in the User manual, the DPA, or infringe any law and if such failure continues more than FIFTEEN days after delivery of written notice thereof; and

(c) either party may terminate the contractual relationship, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

Article 14.4 Effect of Termination or Expiration.

Upon any expiration or termination of this Terms of Sale, except as expressly otherwise provided in this Terms of Sale:

(a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate.

(b) PROVIDER shall apply DPA regarding Data transmitted by Customer, provided that, for clarity, PROVIDER's obligations under DPA do not apply to any anonymized Data;

(c) Customer shall immediately cease all use of any Services and within FIVE days return to PROVIDER, or at PROVIDER's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on PROVIDER's Confidential Information permanently erase all PROVIDER’s Confidential Information from all systems Customer directly or indirectly controls;

(d) PROVIDER may disable all Customer and Authorized User access to the Services.

(e) if Customer terminates the contract pursuant to Section 14.3(b), Customer will not be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and PROVIDER will: (i) refund to Customer Fees paid in advance for Services that PROVIDER has not performed as of the effective date of termination; and (ii) pay to Customer any unpaid Service Credits to which Customer is entitled.

(f) if the Services are terminated pursuant to Section 14.2, 14.3(a), or section 14.3(b), as a result of the Customer's failure to comply with his obligation under these terms and conditions, all Fees that would have become payable will become immediately due and payable, and Customer shall pay such Fees, together with all previously accrued but not yet paid Fees and Reimbursable Expenses, on receipt of PROVIDER's invoice therefor.

Article 14.5 Surviving Terms.

The provisions set forth in the following articles, and any other right or obligation of the parties in this Terms of Sales, this Terms of Use that, by its nature, should survive termination or expiration of this Terms of Sale, will survive any expiration or termination of this contractual relation such as : Section 3.1, Section 9, Section 11.4, Section 12, Section 13 and Section 15 of Terms of Use, this article  14.4 and14.5 of this Term of Sale.

Article 15 Guarantee of the Digitsole Pro device

Digitsole Pro devices are delivered with a contractual guarantee of two years, starting from the date of delivery.

This guarantee covers the non-conformity of the products with the order and any hidden defect, resulting from a material, design or manufacturing fault affecting the products delivered and making them unfit for use.

Under conditions set forth in article 15.1, the supplier will replace or repair the products or parts under warranty.

Return cost of Digitsole Pro devices will incur a restocking fee of $10 and return freight is the responsibility of the customer, unless otherwise agreed upon by PROVIDER.


Article 15.1 Guarantee for non-conformity of Digitsole Pro device

The products must be checked by the client upon delivery, and any claim, reservation or dispute relating to shortages and apparent defects must be made under the conditions set out in the above article 11.

In the event of apparent defects, the defective parts are replaced by DIGTISOLE, subject to verification of the alleged defects. Customer must provide all justification as to the reality of the defects observed, DIGITSOLE reserving the right to proceed, directly or indirectly, to any observation and verification on site.

The denunciation of the defects existing at the time of delivery, and revealed after the reception of the products, must be formulated by the client in writing within three (3) days following the date on which he will have discovered the defect of conformity. No complaint will be taken into account if it is made more than three (3) clear days after delivery of the products.

No action for non-conformity may be taken by the customer more than three (3) days after delivery of the products. It is expressly agreed by the customer's acceptance of these terms of sale that after the expiry of this period, the client may not invoke the non-conformity of the products, nor raise this as a counterclaim to defend itself in the event of an action for the recovery of debts initiated by the supplier. In the absence of compliance with these conditions, the supplier's liability vis-à-vis the client, on the grounds of a hidden defect, may not be called into question.

Defects and deterioration of the products delivered as a result of abnormal storage and/or conservation conditions at the client's premises, in particular in the event of an accident of any kind whatsoever, may not give rise to a right to the guarantee due by the supplier.

 

Article 15.2 Guarantee for hidden defects of Digitsole Pro device

Under the guarantee for hidden defects, the supplier shall only be liable for the replacement, free of charge, of the defective goods, without the client being able to claim damages for any reason whatsoever.

PROVIDER guarantees its products against hidden defects, in accordance with the law, usage and case law, and under the following conditions

- the guarantee only applies to products that have become the property of the customer.

- it only applies to products entirely manufactured by the PROVIDER.

- it is excluded if our products have been used under conditions of use or performance that were not intended.

The supplier's guarantee only concerns hidden defects. As our customers are professionals, a latent defect is defined as a manufacturing defect in the product that renders it unfit for use and that could not have been detected by the buyer prior to its use. A design defect is not a hidden defect, and our customers are deemed to have received all technical information relating to our products. The supplier does not cover damage and wear resulting from special, abnormal or non-standard adaptation or assembly of its products unless this has been carried out under its supervision.

 

In any event, PROVIDER’s guarantee for hidden defect fully ends if customers fail to notify the supplier of the alleged hidden defect within twenty (20) days of its discovery. It shall be incumbent on him to prove the date of this discovery.

 

Article 16 – LIMITATION OF LIABILITY

Results provided using Digitsole Pro devices and SaaS are believed to be reliable. It is a report on the spatiotemporal and kinematic parameters of walking. It is up to each health professional to make the final diagnosis based on their analysis, skills, and knowledge. In no case the result proposed using SaaS and Digitsole Pro devices can engage the responsibility of DIGITSOLE. The information provided is indicative and general, without medical value.

SO, PROVIDER’s LIABILITY CANNOT BE DIRECTLY OR INDIRECTLY RETAIN FOR:

(a)    ANY INTERRUPTION OF CONNECTION TO SAAS DUE TO

(i)                 CUSTOMER’S BEHAVIOR OR HIS/HER CLIENT OR PATIENT’S BEHAVIOR, OR

(ii)               MAINTENANCE OPERATION FOR WHICH THE CUSTOMER HAS BEEN INFORMED BY PROVIDER

(b)   MISUSE OF DIGITSOLE PRO DEVICE OR PROVIDER’s WEBSITE

(c)    NON-RESPECT OF USER MANUAL

(d)   ANY INCIDENT OR INTERRUPTION OF THE CONNECTION DUE TO FORCE MAJEURE, OR MALFUNCTION OF CUSTOMER’S EQUIPMENT, MATERIALS, AND/OR INFRASTRUCTURE.

(e)    MISUSE AND BAD INTERPRETATION OF INFORMATION GIVEN BY PROVIDER THROW THE APP or the PROVIDER’s WEBSITE.

 

ARTICLE 16.1 EXCLUSION OF DAMAGES .

EXCEPT AS OTHERWISE PROVIDED IN ARTICLE 16.3, IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS TERMS OF USE OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SECTION 5.2; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

ARTICLE 16.2 CAP ON MONETARY LIABILITY.

EXCEPT AS OTHERWISE PROVIDED IN ARTICLE 16.3, IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATED TO THIS TERMS OF USE, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED TEN TIMES THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS TERMS OF USE IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

Article 16.3 Exceptions.

The exclusions and limitations in article 16.1 and article 16.2 do not apply to Provider's obligations under article 15 of Terms of Sale, Section 12 of Term of Use or liability for  Provider's gross negligence or wilful misconduct.

  Article 17 – Period of withdrawal

As the buyer is a professional purchasing in the context and for the needs of his profession, there is no need to apply the right of withdrawal provided for in Consumer law of certain countries.

 

Article 18 – Applicable Law and jurisdiction

Any question relating to the present terms of sale as well as to the sales which they govern, which would not be dealt with by the present contractual stipulations, shall be governed by French law to the exclusion of any other law, and by way of supplement, by the Vienna Convention on the International Sale of Goods.

The PROVIDER's name is DIGITSOLE, and its address is 13 rue Héré – 54000 NANCY - FRANCE (registered office of the PROVIDER).

Any dispute concerning the application of these terms of sale and their interpretation, their execution and the sales contracts concluded by the supplier, or the payment of the price, shall be brought before the commercial court of the PROVIDER, regardless of the place of the order, delivery and payment and the method of payment, and even in the event of a guaranteed appeal or multiple defendants.

  19 Counterparts.

An electronically acceptance of this Terms of Sale delivered by email is deemed to have the same legal effect as delivery of an original signed copy of this Terms of Sale.

 

 

Last updated on 26th January 2022