Terms and Conditions of Sale and Services
1. Scope of application – Enforceability
The present general terms and conditions of sale (hereinafter referred to as “GTCS”) govern any order, request, or contractual relationship concerning (i) all services provided by the service provider company (hereinafter referred to as the “Company” as designated in Article 2 below), including but not limited to analysis, sampling, audits, inspections, visits, studies, training, expertise, technical assistance (hereinafter referred to as the “Services”) and/or (ii) the supply by the Company of products, in particular consumables, reagents, kits, hardware, software or other products (hereinafter referred to as the “Products”). The Company and the customer ordering the Services or Products are hereinafter referred to together as the “Parties” or individually as the “Party”. These General Terms and Conditions of Sale form the basis of commercial negotiation between the Parties and take precedence over any other conditions, provisions, or documents issued by the client, of any kind whatsoever, including its terms of purchase, to which it expressly and definitively waives. These General Terms and Conditions come into force on the date appearing at the top of these General Terms and Conditions and replace any previous version of the General Terms and Conditions as from that date. The client is informed that they may be modified at any time and, if necessary, will be subject to a new acceptance by the client. Any deviation from these GTS requires the express written agreement of a person duly authorized to represent the Company. Therefore, any deviation or specific provision proposed by the client, at any time and in any form, which would derogate from and/or supplement these CGV and which has not been duly accepted in writing by a duly authorized representative of the Company, will be rejected and considered unenforceable.
2. Controls
The Company only supplies Services and Products to professional customers. No order or request for Services or Products may be placed by a non-professional or a consumer within the meaning of the preliminary article of the French Consumer Code. Any request for Services and Products sent by the customer to the Company implies full acceptance and application, without reservation, of the present General Terms and Conditions. A request for Services and Products must be sent in writing to the Company, with the client agreeing to primarily use the EOL software tool or any other type of Electronic Data Interchange (EDI) tool, except in cases of unavailability of these tools due to circumstances compromising the security of data exchange. Any request for Services or Products made orally (including by phone) requires, to be valid, a written confirmation from the client. Failing this, the Company reserves the right not to process it. A request for Services and Products is subject to a quotation, a written offer from the Company, or a contractual agreement, without limitation, specifying the nature of the ordered Services and/or Products and their price. The term “Company” in these General Terms and Conditions refers to the legal entity EUROFINS that issues the quotation or offer or concludes the contractual agreement. The lack of response to a request for Services or Products from the client does not imply tacit acceptance of the request by the Company. Quotations and offers communicated to the customer are valid for the period stipulated therein. The order for Services or Products (hereinafter the “Order”) is firm for the customer on the earliest of the following dates: (i) on receipt by the Company of the quotation, offer or contractual agreement signed by the customer in paper or electronic form, (ii) sending samples to the Company even in the absence of a signed return of the quotation, offer or contractual agreement, or (iii) payment by the customer of all or part of the price of the Services and/or Products ordered. The order is firm for the Company upon receipt of the signed quote, offer, or contractual agreement from the client and subject to the client sending the samples within the agreed-upon deadlines and conditions, or in the absence of the return of the signed quote, offer, or contractual agreement, from the commencement of the execution of the Services or delivery of the Products by the Company. The Company may condition the acceptance of an Order on the client’s payment of a deposit of up to 100% of the Order amount. The client acknowledges that these General Terms and Conditions apply to any future Order(s) from the client, to any new Service(s), or new delivery(ies) of Products to the client, even in the absence of formal acceptance on their part of these General Terms and Conditions. The terms of the Order supplement these GTC. Any provision in the Order that is contrary to these GCS must be expressly approved by the Company. Any special conditions attached to a specific Sales Order shall not automatically apply to subsequent Sales Orders placed by the client, and each such Sales Order shall constitute its own distinct and independent agreement. The benefits of an Order are personal to the client, who undertakes not to assign or transfer, in any form whatsoever, their rights and obligations under these General Terms and Conditions and the Order, without the prior written consent of the Company. An Order cannot be partially or wholly modified or cancelled by the client without the prior, express, and written agreement of the Company. In the event of total or partial cancellation of an Order, suspension, or postponement of its execution at the client’s initiative, including with the Company’s agreement, (i) advance payments already made to the Company shall be retained by it, (ii) the price of the Services and/or Products of the relevant Order for which performance has commenced is due in full, and (iii) The client is liable to the Company for compensation equivalent to the damage suffered by the Company, including expenses incurred for the execution of the Order, without the amount of this compensation being less than 50% of the total amount excluding tax of the relevant Order, unless the client can prove that the damage suffered by the Company is less than 50%, in which case the compensation is equivalent to the actual damage suffered by the Company. The following Services are subject to specific cancellation deadlines, with cancellation after the specified deadline resulting in the invoicing of the entire Order: 48 hours in advance for a collection, 96 hours in advance for a sampling, one week in advance for an audit. The Company reserves the right to suspend, modify, and/or terminate an ongoing Order in the event of a change in the applicable regulations or legislation affecting the execution of the Order, without any compensation or refund being claimed by the client in this regard. In the event of termination of the Order for this reason, the client remains obligated to pay for the Products delivered and the Services, either wholly or partially executed, and to bear the expenses incurred by the Company for the execution of the Order. Any request for Services or Products not provided for in the Order will be the subject of a new quotation, offer or contractual agreement specifying the price of these new Products and/or Services. The dispatch by the customer of additional samples not provided for in the Order constitutes a new request for Services and is the subject of a new Order.
3. Performance of Services
3.1 Terms and conditions
The Company remains free to determine the methods, processes, techniques, products or other necessary to perform the Services ordered. The lead times specified in the Order are given as an indication only and the Company shall not be held liable for failure to meet them. The execution of the service ordered by the client is subject to the receipt by the Company, within the deadlines communicated by the Company, of the sample(s) to be analyzed and all necessary information to be provided by the client. Any delay by the client in transmitting samples and information will result in the postponement of the indicative execution deadlines and may justify the invoicing of additional charges by the Company or a revision of the price of the Services, which the client expressly acknowledges and accepts. The Company is free to subcontract all or part of the performance of the Services, which the customer expressly accepts. The Company remains responsible for the proper performance of the Services by its subcontractors. The Company reserves the right to perform the Services in instalments, and each instalment of Services may be invoiced separately. In the event that the client orders an analysis service covered by an accreditation scope, the client nevertheless authorizes the Company to issue an analysis report outside of accreditation, provided that the analysis conditions did not allow the Company to perform the service in accordance with the accreditation criteria. The Company will use its best efforts to inform the customer as soon as possible of the impossibility of carrying out the Service within the framework of the accreditation standards. In all cases, the price of the Service ordered by the customer remains payable in full to the Company. Under no circumstances may the analysis report issued by the Company without accreditation be used by the customer or presented to third parties as a report issued under accreditation. La Prestation rendue hors accréditation n’est ni présumée conforme au référentiel d’accréditation, ni couverte par les accords de reconnaissance internationaux. Le rapport associé ne pourra en aucun cas être mis à disposition des tiers (le public ou les autorités).
3.2 Reports and results
Les résultats sont en principe adressés au client par tout moyen électronique (notamment par courrier électronique sous format PDF, via EOL ou tout autre EDI) ou sur support papier à la demande du client. In this respect, any customer request for results sent on paper may give rise to additional invoicing. For the attention of the customer’s personnel and/or representatives designated in the Order. The reports transmitted electronically are electronically signed by a process ensuring the authentication of the signatory authorized to validate the reports and are archived by the Company using a technical process enabling their preservation in their original format. The technical procedures implemented by the Company ensure the confidentiality and integrity of the data contained in the reports. The client acknowledges and accepts that reports transmitted electronically are admitted as original copies before the Courts and constitute evidence of the data they contain, admissible, valid, and binding proof between the client and the Company, in the same manner, under the same conditions, and with the same probative force as a report that would be established, received, or retained on paper. Each report issued relates exclusively to the sample(s) analyzed by the Company. Dans le cas où l’exécution des Prestations a été soustraitée à un tiers, les rapports originaux du sous-traitant justifiant les résultats sont transmis uniquement sur demande écrite du client. At the express written request of the customer, the Company can draw up a comparison between the results obtained on completion of the Services and the standards applicable in the field in question. This comparison constitutes an additional Service which is subject to an Order and additional invoicing by the Company. In the event that a preliminary analysis report has been established by the Company and sent to the client, the latter acknowledges and accepts that certain information and results may evolve between the preliminary report and the final report, and accordingly, any use and/or interpretation of the information and results of the preliminary analysis report are the sole responsibility of the client. At the customer’s request, an extract of a report containing no results or conclusions may be given by the Company to the customer, provided that a full report has been issued beforehand. The customer acknowledges and accepts that the said extract shall under no circumstances replace or supersede the full and original version of the report and that any use of the report extract is the sole responsibility of the customer.
3.3 Réitération des analyses
The customer has 30 calendar days from the date of dispatch of the analysis report by the Company to raise an objection or contest the results. If the customer requests that the analysis be repeated, he will bear the cost as part of a new order, unless the results of the second analysis are materially different from those of the first. In any case, a second analysis is only possible if the Company still has the original sample in sufficient quantity at the time of receipt of the customer’s objection, and if the sample’s storage time and conditions are compatible with the performance of this second analysis.
4. Customer-supplied samples
4.1 Customer commitments and guarantees
Samples supplied by the customer must be in sufficient quantity and in such condition as to enable the Services to be prepared and performed without difficulty. The customer must ensure and guarantee that no sample represents a danger to the Company, its laboratories, materials and equipment, its personnel, its representatives and any subcontractors, whether at the place where the sample is taken, during transport, or during handling in the Company’s laboratories or establishments. The customer is solely responsible for ensuring that the sample complies with current laws and regulations, in particular those concerning marking and hazardous materials and waste. The client undertakes to communicate to the Company, in writing, before the submission of the sample or the sampling operation, all relevant information concerning the safety and security of said sample, its transportation, and disposal, including any known and/or suspected characteristics of toxicity and/or contamination, flammability, risk of explosion, and the risks that the sample could present to the establishments, facilities, equipment, personnel, representatives, and subcontractors of the Company, by adopting appropriate labeling. The Company may carry out a preliminary examination of the samples to verify their quantity and condition before performing the Services. The customer must notify the Company of the precise composition of the sample supplied. If it appears from this preliminary examination that the performance of the Services is impossible or possible only under conditions different from those initially set out in the Order – in particular, if the samples are mixed with foreign substances or materials not reported by the client or if they are in a degraded state, the Company may, at its option: (i) soit suspendre l’exécution de la Commande. In this case, the customer can provide a new sample. Any delays in the performance of the Services agreed in the Order shall automatically become unenforceable against the Company; (ii) immediately terminate the Order by operation of law. In this case, any advance payments already made by the customer shall remain the property of the Company, and the customer shall also be liable to compensate the Company for any costs incurred by the latter in connection with the performance of the Services. Regardless of the option chosen by the Company, any costs incurred by the Company in connection with the preliminary examination of samples are invoiced to and borne by the Customer, who undertakes to pay them. Le client est responsable de toutes les conséquences qui résulteraient d’un quelconque manquement à ses obligations au titre du présent article 4 et supporte l’ensemble des coûts, frais, dommages et préjudices qui seraient subis ou supportés par la Société, son personnel, ses représentants et éventuels sous-traitants, que ce soit sur le site de prélèvement et de collecte de l’échantillon, durant son transport ou dans les laboratoires ou locaux de la Société. The customer shall bear all costs associated with the disposal of hazardous materials and waste resulting from the sample, whether or not they have been described as such by the customer.
4.2 Sample properties
The customer retains ownership of the samples. The customer authorizes the Company to use the samples free of charge for the purpose of performing the Services ordered. Under no circumstances shall the Company be held liable in the event of deterioration of the sample entrusted to carry out the Order.
4.3 Disposal of samples on completion of Services
The Order specifies whether, at the end of the Services, the sample is to be returned to the customer, destroyed or retained (and if so, the desired retention period). In the absence of specific details in the Order or of specific regulatory provisions relating to its conservation, the sample or its remainder is kept by the Company for a maximum period of 30 (thirty) calendar days from the end of the corresponding Services, unless the sample consists of perishable foodstuffs, in which case the maximum conservation period is reduced. At the end of this retention period, unless otherwise specified in the Order, the sample or its remainder will be destroyed by the Company, without the need for prior information or notification of the customer. The customer shall bear all charges and costs arising from the return, destruction or preservation of the sample, including where the amount of such charges is not expressly stated in the Order: → If the sample is returned to the customer: the cost of transport, insurance and packaging of the sample shall be borne by the customer. Samples are transported at the customer’s risk, and the Company cannot be held liable in any way whatsoever in the event of deterioration, damage or total or partial loss of the sample during transport. → In the event of destruction: the customer bears all destruction costs and expenses, including in the event that applicable laws and regulations (on hazardous materials and waste, for example) give rise to additional and/or specific destruction costs. → In the event of sample storage: the Company undertakes to take reasonable steps in accordance with standard practice to store the sample at the customer’s expense and risk. The customer bears the full cost of storage, including any additional costs arising from the obligation to comply with specific laws and regulations relating to hazardous materials and waste.
5. Product supply
Delivery of the Products ordered is understood to be EXWORKS (Incoterms 2020), i.e. the provision of the Products at the place specified in the Order or, failing this, at the Company’s premises before collection by the carrier. Delivery times are indicative only. Failure to do so shall not result in the cancellation of the Order, the refusal of delivery by the customer, or the payment of penalties or damages by the Company. An Order for Products may be subject to partial deliveries. Upon receipt of the Products by the carrier, the customer undertakes to carry out all necessary checks and tests to detect any damage, shortages, visible defects or non-conformity of the Products delivered with respect to the transport document, the delivery note and the Sales Order. In order to be taken into account, any refusals, claims or reservations must be mentioned in the presence of the carrier on the delivery note, duly signed and stamped, and sent to the carrier and to the Company by registered mail with acknowledgement of receipt within three (3) days of receipt (article L.133-3 of the French Commercial Code). A défaut de refus, réserves ou réclamations formulés dans le respect des conditions ci-dessus, les Produits sont réputés conformes. In order to be taken into account by the Company, any damage, non-conformity or defect that cannot be reasonably detected when the Products are delivered by the carrier must be the subject of a claim within a maximum period of seven (7) days from the date of delivery by the carrier, sent by e-mail or registered letter with acknowledgement of receipt, and must include the following information: Order reference, subject and reasons for the claim. It is the customer’s responsibility to provide proof of any defects, non-conformities or damage declared, to enable the Company to ascertain them.
6. Prices and terms of payment
6.1 Prices
The price of the Services and Products invoiced to the customer is that shown in the Order (unit price excluding tax) or, in the absence of a written order, corresponds to the price list in force at the time of performance of the Services or delivery of the Products. Unless otherwise specified in the Order, it is quoted in euros, exclusive of tax, customs duties, currency conversion charges, sample collection charges, packaging, transport and insurance costs, which are invoiced in addition. Applicable taxes are those in force on the billing date. Prices are established on the basis of data and information supplied by the customer and for normal conditions of performance of the Services or delivery of the Products. The Company reserves the right to apply a surcharge to the price of the Services set out in the Order. (i) in the event that particular properties of the samples, unknown at the time of the Order, generate additional costs for the performance of the Services ordered, or (ii) in the event of a change in regulations or the entry into force of new regulations or new recommendations from administrative and supervisory authorities applicable to the Services ordered and/or to the Company, resulting in an increase in the cost to the Company of performing the Services. As from the date of entry into force of these GCS mentioned above and in the event of an increase in the cost of performing the Services or supplying the Products for reasons other than those referred to in the preceding paragraph, the Parties agree to meet quarterly to discuss the application of an increase in the price of the Services and Products. In this respect, the Parties agree that in the event of agreement between them, this increase in the price of the Services and Products will be applicable to the Order as from the first day of the following quarter. Failing agreement between the Parties one (1) month after the first meeting between the Parties on this subject, the Company may notify the customer of the termination of the Order, quotation, offer or contractual agreement concerned, subject to three (3) months’ notice. The prices originally agreed in the Order will continue to apply during the period of notice.
6.2 Billing
La Société transmet au client des factures en format électronique à l’attention du personnel et/ou des représentants du client désignés dans la Commande. The customer acknowledges that invoices sent by electronic means are accepted as original copies before the Courts and constitute proof of the data they contain, which proof is admissible, valid and opposable between the Parties, in the same way, under the same conditions and with the same probative force as an invoice drawn up, received and kept on paper. Any paper invoice or re-edition of an invoice or audit or analysis report requested by the customer will give rise to an additional flat-rate charge of 15 (fifteen) euros (excl. VAT) per document. Any dispute by the customer concerning an invoice must be notified to the Company by registered mail with acknowledgement of receipt within 30 (thirty) calendar days of the invoice date. In the absence of any dispute within this period, or in the event of even partial payment by the customer, the invoice is deemed to have been definitively accepted by the customer, who is deemed to have waived his right to dispute it. All Orders for Services or Products give rise to a minimum invoice of 50 (fifty) euros exclusive of tax, even when the cost of the Service or the supply of the Product is less than this amount.
6.3 Payment
Unless otherwise specified in the Order, payment must be made within thirty (30) days of the invoice date. The preferred method of payment is by direct debit or bank transfer. Any other method of payment requires the prior written consent of the Company. Payment will only be considered to have been made when the price has been effectively collected by the Company. No discount is granted for early payment. Payment of the Company’s invoices may only be made by set-off on any grounds whatsoever with the Company’s express prior written consent. Any delay in payment of all or part of the Company’s invoices shall automatically oblige the customer, without the need for a reminder or formal notice, to pay late payment penalties calculated per day of delay on the basis of the rate applied by the European Central Bank to its most recent refinancing operation, plus 10 percentage points, as well as a flat-rate recovery indemnity of €40, without prejudice to the Company’s right to request payment of statutory interest for late payment and reimbursement of other recovery costs it has incurred, on presentation of supporting documents. Failure by the customer to pay a single invoice by the due date may also result in the customer being obliged, upon simple notification and after prior formal notice which has remained unsuccessful after a period of five (5) days, (i) la suspension immédiate de la Commande concernée mais également de toutes les autres Commandes du client en cours, (ii) the immediate payment of all sums owed by the customer in respect of the Order concerned and/or (iii) termination of the Order concerned to the customer’s detriment, without prejudice to the Company’s right to claim damages.
7. Retention of Title Clause
THE PROPERTY RIGHTS AND ALL OTHER RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS AND USAGE RIGHTS RELATING TO THE RESULTS, REPORTS, PRODUCTS, EQUIPMENT, MATERIALS, SOFTWARE, AND WORKS UNDERTAKEN IN THE CONTEXT OF EXECUTING AN ORDER, ARE TRANSFERRED TO THE CUSTOMER ONLY UPON FULL PAYMENT BY THE CUSTOMER OF ALL AMOUNTS IN PRINCIPAL, INTEREST, PENALTIES, AND INCIDENTALS DUE UNDER SAID ORDER, PAYMENT BEING DEEMED EFFECTIVE ONLY UPON THE ACTUAL RECEIPT OF THESE AMOUNTS. Until these sums are paid in full by the customer, the latter has no right of ownership or use over the results, reports, products, equipment, hardware, software and work, and is consequently prohibited from using and exploiting them for any purpose and in any way whatsoever. Until the price of the Products has been paid in full, the customer may not resell them or use them as collateral. In the event of seizure or any other intervention by a third party on the Products, the customer must inform the Company without delay to enable it to preserve its rights. In the event of non-payment of all or part of a single invoice on its due date, the Products must, at the Company’s request, be immediately returned to it at the customer’s expense and risk, the Products in the customer’s possession being deemed to be those unpaid. Where applicable, the customer authorizes the Company or any person authorized by it, to enter its premises and/or its business to recover the Products, within the limits of normal opening hours. If the Products subject to retention of title have been resold by the customer, the Company’s claim is automatically transferred to the claim on the resold Products. To this end, the customer hereby assigns to the Company all claims arising from the resale of unpaid Products subject to retention of title.
8. Intellectual property
8.1
Unless otherwise expressly agreed in the Order, all of the Company’s intellectual property rights, in particular those relating to the Services and Products, including but not limited to patents, studies, drawings, models, plans, trademarks, accreditation or certification marks, logos, trade names, copyrights, computer programs, software, source codes, databases, know-how, trade secrets, methods, processes and technical or scientific knowledge, technologies, ideas, concepts, improvements and developments, including those developed in the performance of the Order, remain the exclusive property of the Company and are not assigned or transferred in any way whatsoever to the customer. The customer may not claim any right to these elements or contest their validity. Only ownership of the results is transferred to the customer, subject to full payment by the customer. Notwithstanding the transfer of ownership of the results to the customer, the Company is expressly authorized to store, use and publish them in an anonymous manner that does not allow the customer to be identified.
8.2
In the event that the Company, its name and/or logo and/or any distinctive sign belonging to it is/are mentioned or reproduced on the results, analysis reports and more generally on any document issued by the Company, then the publication, distribution, representation or reproduction by the customer in any form whatsoever, on any medium whatsoever and for any purpose whatsoever of this/these document(s), requires the prior, express and written consent of the Company. However, the use of the Company’s name and/or logo and/or any distinctive sign by the customer is expressly authorized by the latter only in the event that the customer reproduces the Company’s report in its entirety in its own report intended for its own customers. Similarly, the customer is not authorized to publish, represent, reproduce or distribute the Company’s accreditation or certification mark. Any misuse or abuse of the trademark or reference to accreditation, which is observed by the Company or brought to its attention, will be reported to the customer and appropriate action may be taken. Reproduction, representation, distribution or publication of the entire report by the customer in his own report for his own customers is not considered as use of the accreditation mark. In any event, the client guarantees and holds the Company harmless against all consequences, damages, demands, claims, actions, proceedings, payments, indemnities or compensation, of any nature whatsoever, resulting from the use, dissemination, publication, representation or reproduction of the results, reports and documents issued by the Company, including when such use has been previously authorized by the Company.
9. Warranties / liability
9.1
Orders are executed under the Company’s supervision and control in the best possible conditions and in accordance with applicable standards. The Company shall be bound by a best-efforts obligation to perform the Services. It is the customer’s responsibility, particularly when the stakes and context require it, to check and verify the consistency of the results, at his own expense and under his own responsibility, or even to request a counter-analysis to ensure the accuracy of the results provided by the Company. Should it become evident that the results communicated are inaccurate or inconsistent, it is the customer’s responsibility to inform the Company immediately and not to use or exploit the said results in any way whatsoever.
9.2
The Company in no way guarantees the Customer that the Services and/or Products will enable him to achieve a given objective, nor the return on investment expected or hoped for by the Customer as a result of the Services and/or Products. The customer is solely responsible for the use and exploitation of the results, reports and, more generally, of the Services performed and Products supplied by the Company. In particular, if the Company has not been expressly mandated by the client under the terms of the Order to define a sampling plan (specifying the purpose of the samples to be analyzed, the frequency of sampling and analysis) and/or to define the precise scope of the analyses to be carried out, or if the client has not followed the recommendations of the Company, the Company’s liability cannot in any case be sought or engaged by the client or third parties in the event that the implemented sampling plan and/or the scope of the analyses and services to be performed prove to be insufficient and/or inappropriate in relation to the objective expressed or expected by the client. The use of the results is the sole responsibility of the customer, who is solely responsible for implementing the measures he deems appropriate.
9.3
The customer is responsible for the proper preparation and dispatch of samples submitted to the Company for the purpose of performing the Services. Unless otherwise expressly stipulated in the Order, the Company shall in no event be liable for any loss, damage or injury that may occur during the sampling, collection or transportation of samples. The customer is and remains solely responsible for the security, transportation, packaging and insurance of the sample from the time it is collected until it is delivered to the laboratories or establishments where the Services are performed.
9.4
The customer represents, warrants and undertakes that all samples sent and or intended to be analyzed under the Order are in a stable condition and present no danger. The customer undertakes to fully indemnify the Company, its staff, its representatives and any subcontractors for any damage, loss, cost, expense, prejudice, direct or indirect, whatever its nature, which they may have suffered or incurred as a result of the said samples, even if the customer has informed the Company of the possible risks presented by the said samples.
9.5
Unless otherwise expressly agreed in writing between the Parties, the contractual relationship exists solely between the customer, who places the Order, and the Company. No contract or agreement concluded by the customer on behalf of a third party, with a third party or benefiting a third party is likely to produce any effect whatsoever with regard to the Company or to create obligations or commitments for the Company. Consequently, the customer shall indemnify and hold the Company harmless against any action, demand or claim by any third party connected with the customer or the Order in any way whatsoever, in any capacity whatsoever, for any reason whatsoever, and undertakes to compensate the Company in full for any damages, compensation, losses, costs, expenses and interest that the Company may be required to pay to such third party.
10. Limitation of liability
The liability of the Company (including any person associated with the Company for the performance of the Order, in particular its employees and representatives) may only be invoked by the customer in the event that he demonstrates the existence of direct and immediate damage resulting from gross negligence or intentional misconduct on the part of the Company in the performance of the Order, and only if he has notified his claim to the Company by registered letter with acknowledgement of receipt within a period of 6 (six) months from the discovery of the damage. In any event, the Company’s liability is expressly excluded in the event of force majeure as defined in article 11 of these GCS, or the customer’s failure to meet its own legal, regulatory or contractual obligations under the Order. In the event of damage, the customer undertakes to take all necessary steps and measures as soon as possible to limit the damage as far as possible. Any failure on the part of the customer to comply with this obligation may engage the customer’s liability and/or limit that of the Company. In all cases, should the Company be held liable for any reason whatsoever and whatever the nature of the damage (except personal injury), the amount of compensation payable by the Company (including but not limited to indemnities, penalties, additional costs, legal fees and any defense costs) shall in no event exceed, all sums combined, the lower of : (i) the amount of the direct and immediate loss caused by the gross negligence or wilful misconduct committed by the Company in the performance of the Order concerned, and (ii) ten times the amount exclusive of tax invoiced by the Company to the customer for the Order in question, up to a maximum of 15,000 (fifteen thousand) euros. The Company shall not be liable for any indirect, consequential or non-consequential damages suffered by the customer and/or a third party, or for loss of sales, loss of profit, loss of expected savings, loss of goodwill, loss of contract or business opportunity, or damage to the image or reputation of the customer or a third party. The client expressly waives any other recourse against the insurers of the Company and undertakes personal responsibility, guaranteeing the Company and its insurers of an equivalent waiver from their own insurers. The client expressly accepts the application and enforceability of this limitation of liability clause in the context of its contractual relations with the Company and acknowledges that the price of the Services and/or supply of Products has been set in consideration of this limitation of liability clause.
11. Force majeure
The Company cannot be held liable for the total or partial non-performance of its obligations under these General Terms and Conditions and a Order, if such non-performance is due to the occurrence of a force majeure event within the meaning of French law and jurisprudence. In addition to the legal and jurisprudential definition, the Parties have agreed that events qualifying as force majeure, relieving the Company of liability, include but are not limited to: fires, explosions, floods, storms, and other natural disasters, pandemics, wars including civil wars, insurrections, and invasions, riots, cyber-attacks, shortages, difficulties, or interruptions in the supply of materials or transportation, accidents affecting production, abnormal delays in certification, modification, or enforcement of new laws or regulations impacting the Order, total or partial strikes, or other social movements within the Company’s staff or that of its suppliers or service providers, factory or premises occupations, administrative decisions, non-renewal, or withdrawal of necessary administrative authorizations in the absence of fault on the part of the Company, acts of government. The Company shall inform the client promptly of the occurrence of any such events affecting the execution of the Order and may, depending on the circumstances, cancel the current Order, suspend or delay its execution without the client being entitled to claim any compensation for this or cancel its Order, except with the prior written agreement of the Company. The occurrence of a force majeure event does not relieve or exonerate the Parties from their payment obligations.
12. Privacy
The Company undertakes to treat the analysis report submitted to the customer as confidential and will not use it or communicate it to any third party whatsoever, for any reason whatsoever, except to prove the performance of the Order and the Services and in particular to obtain payment for them, or at the request of a competent administrative authority or in execution of an enforceable court decision. The Company also undertakes to treat as confidential all technical, commercial, financial or other information communicated to it in connection with the execution of an Order, insofar as such information is identified as confidential by the customer. Information obtained or generated during the execution of an Order may in any case be communicated by the Company, without the Company being held liable, (i) its service providers and/or subcontractors involved in fulfilling the Orders, who undertake to keep this information strictly confidential, (ii) to any accreditation body in connection with an audit of the Company, and (iii) to any administrative or judicial authority upon request. The client undertakes reciprocally to treat confidentially all technical, scientific, commercial, financial, and any other information concerning the Company that it would become aware of in the execution of an Order, including information regarding the Intellectual Property Rights of the Company, the composition of the Products, and the content of the software delivered by the Company, until such information falls into the public domain other than through the client’s violation of this confidentiality obligation.
13. Personal data
As part of the execution of these General Terms and Conditions and an Order, the Parties may implement automated processing of personal data within the meaning of Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (hereinafter “GDPR”) as well as Law No. 78-17 of January 6, 1978, as amended, relating to data processing, files, and freedoms (hereinafter referred to together within this Article 13 as the “Regulation”). The Parties undertake to comply with the Regulations in connection with such data processing. The terms used in this article are deemed to have the same meaning as given to them by the Regulations. The customer remains solely responsible for the processing of personal data carried out on his behalf, whether by himself or by third parties. Lorsqu’il communique à la Société des données à caractère personnel, il s’assure avoir préalablement informé les personnes concernées de cette communication et, lorsque cela est nécessaire en vertu de la Règlementation, obtenu leur autorisation. The customer indemnifies and holds harmless the Company against any request, claim, action or proceedings by third parties, in particular the persons concerned and the supervisory authorities (such as the CNIL) as a result of non-compliance with the Regulations. In the course of managing its relationship with the customer, the Company may collect and/or process personal data relating to the customer’s employees, representatives and service providers or to the customer’s own customers. This data mainly consists of the identification details of the persons concerned (name, business telephone number and e-mail address, job title) as well as all other information strictly necessary for the processing purposes described below. Personal data is processed by the Company for the purposes of concluding and executing the present GTC and Orders for Services and/or Products, including the management of the contractual and commercial relationship, deliveries, invoicing, payment, customer accounting, any complaints and also for the purposes of carrying out commercial prospecting and satisfaction surveys. Such processing is based on the need for the Company to fulfil its contractual obligations in the context of the performance of these GTC and Orders, and to comply with its legal and regulatory obligations. They are also justified by the Company’s legitimate interest in implementing them. Personal data is accessible only to authorized Company personnel who need to know it, as well as to external service providers and any subcontractors, who are required to respect the confidentiality of the data to which they have access, take all necessary measures to ensure the confidentiality and security of such data, and undertake to process the data only for the specific operation for which they are required to intervene. Les données à caractère personnel peuvent également faire l’objet d’une communication autre que celles prévues ci-dessus pour satisfaire à une obligation légale et réglementaire ou à la demande d’une administration ou d’une autorité judiciaire. Personal data is kept for the duration of the commercial relationship between the Company and the client, and then stored in intermediate archives with restricted and secure access for the applicable legal prescription and/or retention periods. In particular, the Company is legally required to retain certain information for a period of up to 10 (ten) years after the end of the commercial relationship with the client, for accounting and tax purposes. At the end of this period, the data will be permanently deleted, except for those that will be anonymized for statistical and research purposes. In the event of transferring personal data to a country outside the EU and the EEA, legal instruments recognized as appropriate by the Regulation to regulate the concerned transfer are implemented. Persons whose personal data is processed by the Company have the right to access, rectify or delete their personal data, the right to limit processing, the right to object to processing and the right to portability of their data, once they have provided proof of their identity. These rights are exercised in accordance with the terms and conditions set out in the Regulations. All requests should be sent by e-mail to: fr_rgpd@ eurofins.com or by post to the Company’s registered office. Les personnes concernées peuvent aussi adresser une réclamation auprès de l’autorité de contrôle (CNIL) dont le siège se trouve 3, place de Fontenoy – 75 007 PARIS. SUBCONTRACTING – When the Company carries out personal data processing as a subcontractor, on behalf of and on the instructions of the customer, a specific agreement defining the respective obligations of the customer and the Company in the context of such processing is concluded.
14. Lois sur les sanctions économiques
14.1.
For the purposes of this clause, “Economic Sanction(s)” means any economic sanctions, restrictive measures or trade embargoes adopted by the United Nations Security Council, the European Union, the United States of America or any other sovereign state. “Economic Sanctions Act” means any law, regulation or decision promulgating or enacting economic sanctions.
14.2.
The customer undertakes and guarantees that, for the duration of its contractual relationship with the Company: → It is not and will not be the target of any Economic Sanction. → To the best of its knowledge, it is not and will not be beneficially controlled or owned by any person subject to Economic Sanctions. → It respects and will respect all Laws on economic sanctions. Without limiting the scope and generality of the foregoing, the customer agrees not to (i) directly or indirectly export, re-export, transship or otherwise deliver the Services and Products or any other services in violation of any Economic Sanctions Act, or (ii) broker, finance or otherwise facilitate any transaction in violation of any Economic Sanctions Act. → And, it is not involved in any proceedings or under investigation by the authorities for the alleged violation of any Economic Sanctions Act.
14.3.
The client shall indemnify the Company, all companies affiliated with the Company (sister companies, holding companies, parent companies), its personnel, agents, and representatives from all losses, liabilities, damages, fines, costs (including, but not limited to, legal fees), and expenses incurred by or borne by the Company as a result of the client’s breach of its commitments under the preceding paragraph 14.2.
14.4.
In the event of a breach or failure by the client under this Article 14 as observed by the Company, the Company may, without prejudice to its right to seek damages from the client: → Suspend the execution of any current Order, in whole or in part, until the client can legally resume the execution of the Order(s); and/or → Initiate discussions with the client for a possible modification of the current Orders to enable their execution in accordance with Economic Sanctions Laws; and/or → Notify the client of the immediate termination of all or part of the Order. No compensation shall be due to the client for the implementation of any of the sanctions provided for in this Article 14.4.
15. Applicable law / disputes
These Terms and Conditions, any Order, and more generally, the contractual relations between the Parties, shall be governed by French law, excluding any international conflict of law rules and those arising from the Vienna Convention on Contracts for the International Sale of Goods. The Parties agree that any dispute arising from these Terms and Conditions and an Order between them, concerning their validity, conclusion, interpretation, performance, termination, consequences, and/or follow-up, shall be subject to a prior conventional mediation procedure before any legal action, except in cases of emergency relief, on application, counterclaims, or incidental demands for which the court materially competent in the jurisdiction of the Company’s registered office may be directly seized. The Party intending to initiate mediation must inform the other Party by registered letter with acknowledgement of receipt, proposing the name of a mediator trained and qualified in mediation. The other Party shall have a period of eight (8) days in which to notify its disagreement with the name of the proposed mediator, failing which it shall be deemed to have accepted the name of the proposed mediator. In the event of disagreement between the Parties over the choice of a mediator, the most diligent Party may request the appointment of a mediator from the President of the Commercial Court with jurisdiction over the Company’s registered office. Les frais et honoraires du médiateur sont en tout état de cause supportés à parts égales par les Parties. If no agreement is reached between the Parties within two (2) months of the mediator’s involvement, the Parties will regain their freedom and may refer the matter to the competent court within the jurisdiction of the Company’s registered office, to which they grant exclusive jurisdiction to settle the dispute, notwithstanding plurality of defendants, incidental claims, or counterclaims. Any action by the client based on these GTC and an Order must be brought before the competent courts under this article within a maximum period of one (1) year, in accordance with Article 2254, paragraph 1 of the Civil Code.
16. Miscellaneous stipulations
16.1 Code d’éthique :
The Company undertakes to adhere to high ethical standards in the conduct of its business. These standards are defined in the Eurofins Group’s Code of Ethics.
16.2 Disability :
In the event that any provision of these GCS or of an Order is deemed invalid or unenforceable, the Parties shall consult to agree on a provision(s) replacing the invalid provision(s) and most effectively achieving the economic purpose and intent of the invalid provision(s). All other stipulations shall remain in full force and effect, unless these General Terms and Conditions of Sale and the relevant Order become null and void or impossible to perform.
16.3 Tolerence:
No tolerance of any nature, extent, duration, or frequency shall be deemed to create any right, nor shall it be construed as a waiver of any provision of these Terms and Conditions and of any Order, with each Party reserving the right to demand compliance with them at any time, even retroactively.
16.4 Language:
The original version of these GCS is drawn up in French and takes precedence over any other version or translation of these GCS in another language.
16.5 Notification :
Subject to any contrary provisions of these GTC, any notification between the Parties shall be made by letter on paper support allowing proof of receipt (registered letter with acknowledgment of receipt), to the address of the recipient Party’s registered office, with any deadline starting from the day of the first presentation of said letter to the recipient Party.
16.6 Non-recruitment of Employees:
The client undertakes not to poach, hire, or engage, directly or indirectly, any employee of the Company who participated and/or collaborated in the execution of an Order during the performance of the ordered Services and for a period of two (2) years following the end of their contractual relationship related to said Order, even if the solicitation is initiated or prompted by the employee of the Company themselves.
