Certain provisions of these General Terms and Conditions of Sale will be supplement and/or replaced by provisions featuring in the second part which apply to all orders placed on MySupportAir.
PART ONE - General terms and conditions of sale and provision of services
1. Scope of application – Enforceability
These standard terms of sale (hereinafter “ToS”) govern all orders, requests or contractual relationships concerning (i) all services supplied by the service provider Company (as defined in Article 2 below) and, in particular, services involving analyses, taking samples, audits, inspections, visits, studies, training and expertise, as well as technical assistance (hereinafter referred to as the “Services” and/or (ii) concerning the supply by the Company of products and in particular consumables, reagents, kits, equipment, software applications or other items (hereinafter referred to as the “Products”).
The Company and the client who orders the Services or the Products are hereinafter jointly referred to as the “Parties” or individually as a “Party”.
These ToS form the basis for the business negotiations between the Parties and shall take precedence over all other terms, provisions or documents issued by the client, of any kind whatsoever, in particular the client’s terms of purchase, which the client expressly and definitively waives.
These ToS will enter into force on the date shown at the head of this document and, as from said date, will supersede all previous versions of the ToS. The client is informed that the ToS may be amended at any time and, as necessary, will again be submitted to the client for acceptance.
All derogations from these ToS will obligatorily require an express, written agreement that is signed by a person who is duly empowered to represent the Company. Consequently, all specific derogations or provisions proposed by the client, at any time whatsoever and in any form whatsoever, that may derogate from and/ or complement these ToS and that have not been duly accepted in writing by a duly empowered representative of the Company, shall be rejected and deemed to be unenforceable.
2. Orders
The Company only supplies the Services and the Products to business clients. No orders or requests for Services or Products can be placed by a non-business client or a consumer within the meaning of the introductory article to the French Consumer Code.
All requests for Services and Products that the client sends to the Company presuppose full, complete and unconditional acceptance of these ToS.
A request for Services and Products must be sent in writing to the Company, and the client undertakes to use, as a priority, the EOL software application or any other kind of Electronic Data Interchange (EDI) application, unless such applications are unavailable, due to circumstances that call into question data exchange security. All requests for Services or Products made orally (in particular by telephone) require written confirmation from the client, in order to be eligible. Absent such confirmation, the Company reserves the right not to process the request.
A request for Services and Products will be the subject of a quote, a written offer from the Company or a contractual agreement (this list is not exhaustive), which specifies the nature of the Services and/or Products ordered and their price. The “Company”, within the meaning of these ToS, refers to the EUROFINS legal entity that prepares the quote or the offer or that enters into the contractual agreement. The lack of a response to a request for Services or Products by the client does not constitute tacit acceptance of the client’s request by the Company.
The quotes and offers provided to the client are valid for the period stated therein.
An order for Services or Products (hereinafter the “Order”) will become firm with regard to the client as from the first of the following dates, namely at the time: (i) of receipt by the Company of the quote, offer or contractual agreement that is signed by the client in printed or electronic format, (ii) of the sending of the samples to the Company, even if the signed quote, offer or contractual agreement has not been returned, or (iii) of the payment by the client of all or part of the price for the Services and/or Products ordered.
An Order will become firm with regard to the Company as from receipt of the quote, the offer or the contractual agreement signed by the client, and provided that the client sends the samples within the agreed time-limits and under the agreed terms, or, if a signed quote, offer or contractual agreement was not returned, as from the start of performance of the Services or the delivery of the Products by the Company.
The Company may make acceptance of an Order contingent on payment by the client of an advance that may be up to 100% of the amount of the Order.
The client acknowledges that these ToS apply to all future Order(s) from the client, and all new supplies of Service(s) or new delivery/ies of Products to the same client, even if that client has not formally accepted said ToS. The terms of the Order complete these ToS. All provisions that are contrary to these ToS and that are contained in the Order must be expressly approved by the Company.
All specific terms that are granted in respect of one Order shall not automatically apply to the client’s subsequent Orders; each Order placed by the Client is an independent, separate contract.
The benefit of an Order is personal with respect to the client, which shall refrain from assigning or transferring its rights and obligations under these ToS and the Order, in any form whatsoever, unless the client has obtained the Company’s prior written agreement.
An Order cannot be partially or totally modified or cancelled by the client without the Company’s prior, express, written agreement.
In the event of total or partial cancellation of an Order, or of the suspension or deferral of fulfilment of an Order at the initiative of the client, including with the Company’s agreement, (i) the advances/amounts already paid to the Company shall inure to its benefit, (ii) the price of the Services and/or of the Products for the Order concerned, fulfilment of which has started, shall be due in full, and (iii) the client shall owe the Company an indemnity equivalent to the loss suffered by the Company, including the expenses incurred with a view to the fulfilment of the Order, the amount of which cannot under any circumstances be less than 50% of the total amount excluding tax of the Order concerned, unless the client can prove the loss suffered by the Company is less than 50% in which case the indemnity is equivalent to the loss really suffered by the Company.
Specific advance notice periods apply to the cancellation of the following Services, and cancellation with insufficient notice will trigger the invoicing of the full amount of the Order: 48 hours in advance for collecting a sample, 96 hours in advance for a taking a sample, and one week in advance for an audit. The Company reserves the right to suspend, modify and/or cancel a current Order in the event of a change in the applicable regulations or legislation that has an impact on the fulfilment of the Order, without the client being able to claim any indemnity or reimbursement in this regard. If the Order is cancelled for this reason, the client will still be required to pay for the Products delivered and the Services that have been fully or partially performed, and to cover the expenses incurred by the Company for the purposes of the fulfilment of the Order.
All requests for Services or Products not provided for in the Order will be the subject of a new quote, offer or contractual agreement that specifies the price of said new Products and/or Services. If the client sends additional samples that are not provided for in the Order, this constitutes a new request for Services and will be the subject of a new Order.
3. Performance of the Services
3-1. Conditions of performance
The Company is free to determine at its sole discretion the methods, processes, techniques, products or other items that are necessary for the performance of the Services ordered.
The fulfilment times shown in the Order are provided by way of indication only, and failure to comply therewith cannot trigger the Company’s liability.
The performance of the Service ordered by the client is contingent on the Company receiving, within the timelimits notified by the Company, the sample(s) to be analysed and all the necessary information that is to be provided by the client. Any delay by the client in sending the samples and information will cause the extension of the indicative fulfilment times and may justify additional expenses being invoiced by the Company or an adjustment of the price of the Services, which the client acknowledges and expressly accepts.
The Company is free to sub-contract all or part of the performance of the Services, which the client expressly accepts. The Company shall remain liable for the proper performance of the Services by its sub-contractors.
The Company reserves the right to perform the Services in stages, each of which may be invoiced separately.
In the event that the client orders an analysis Service that falls within an accreditation scope, the client nevertheless authorises the Company to provide the client with an analysis report outside the accreditation scope, if the analysis conditions did not make it possible for the Company to perform the service in accordance with the accreditation framework. The Company shall use its best efforts to inform the client as soon as possible if it is impossible for the Company to perform the Service within the scope of the accreditation framework. In all cases, the price of the Service ordered by the client must still be paid in full to the Company. The analysis report issued by the Company outside of the accreditation scope cannot under any circumstances be used by the client or presented to third parties as a report issued within the scope of accreditation.
A Service that is provided outside of the scope of accreditation is not presumed to comply with the accreditation framework or be covered by international mutual recognition agreements. The associated report cannot under any circumstances be provided to third parties (the public or the authorities).
3-2. Reports and results
In principle, the results are sent to the client by any electronic means (in particular by e-mail in PDF format, via EOL or any other EDI) or on paper at the request of the client. In this respect, any request from the client for results sent on paper may give rise to additional billing. The results will be sent to the client in printed form, by email in PDF format and/or by any other means, for the attention of the personnel and/or of the representatives of the client named in the Order.
The reports sent electronically will be signed electronically by a process that makes it possible to authenticate the signatory who is empowered to approve the reports and will be archived by the Company using a technical process that makes it possible to store them in their original format. The technical processes implemented by the Company make it possible to ensure the confidentiality and integrity of the date contained in the reports. The client acknowledges and accepts that the reports sent electronically are admitted as originals by the Courts and are proof of the data they contain, with said proof being admissible, valid and enforceable between the client and the Company, in the same way, under the same conditions and with the same evidentiary value as a report that is drawn up, received or stored in printed form.
Each report issued concerns solely the sample(s) analysed by the Company.
In the event that the performance of the Services was sub-contracted to a third party, the sub-contractor’s original reports that justify the results will be sent solely in response to a written request by the client.
At the client’s express, written request, the Company may make a comparison between the results obtained upon completion of the Services and the standards that are applicable in the area concerned. This comparison constitutes a supplementary Service that will be the subject of an Order and invoiced in addition by the Company.
In the event that a preliminary analysis report was prepared by the Company and sent to the client, the latter acknowledges and accepts that some information and results are liable to change between the preliminary report and the final report, and that, consequently, any use and/or interpretation of the information and results contained in the preliminary analysis report are the responsibility of the client alone.
At the client’s request, an excerpt from the report that does not contain any results or findings may be issued to the client by the Company, provided that a complete report was issued beforehand. The client acknowledges and accepts that said excerpt cannot under any circumstances replace or supersede the complete, original version of the report, and that any use of the excerpt from the report is the responsibility of the client alone.
3-3. Reiteration of analyses
The client will have a time-limit of 30 calendar days as from the date on which the Company sends the analysis report in which to raise an objection or challenge the results.
If the client asks for the analysis to be redone, the client shall pay the cost thereof pursuant to a new order, unless the results of the second analysis are substantively different from those generated by the first analysis. The second analysis will in any event only be possible if the Company still has a sufficient quantity of the original sample when the client’s objection is received, and if the storage periods and conditions of storage of the sample are compatible with the performance of said second analysis.
4. Samples provided by the client
4-1. Client commitments and guarantees
The client must provide a sufficient quantity of samples, which must be in a state that allows for the Services to be prepared and performed without difficulty.
The client must ensure and guarantee that no samples are hazardous for the Company, its laboratories, materials and equipment, its personnel, its representatives and its sub-contractors, if any, at the place where the sample is taken, during the shipping thereof, and when handling the sample in the Company’s laboratories or establishments. The client alone is responsible for the compliance of the sample with the laws and regulations in force, in particular those concerning labelling, and hazardous materials and waste. The client undertakes to provide the Company, in writing, before the handover of the sample or the operation to take the sample, with all relevant information concerning the security and the safety of said sample, the shipping and disposal thereof, including all known characteristics and/or suspicions of toxicity and/or contamination, flammability and risk of explosion, and concerning the risks that the sample may pose for the establishments, materials, equipment, personnel, representatives and sub-contractors of the Company, in particular by using appropriate labelling.
If this preliminary analysis shows that the performance of the Services is impossible or is only possible under conditions that are different from those initially defined 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 discretion: (i) either, suspend the fulfilment of the Order. In this case, the client may provide a new sample. Any performance time-limits for the Services agreed in the Order will, as of right, become unenforceable against the Company; (ii) or, cancel the Order without delay, as of right. In this case, the advances already paid by the client shall inure to the benefit of the Company and the client shall also be required to indemnify the Company to cover the expenses the Company has incurred with a view to performing the Services. Regardless of the option chosen by the Company, the expenses incurred by the Company for the preliminary examination of the samples shall be invoiced and charged to the Client, which undertakes to pay them.
The client shall be liable for all consequences that may result from any breach of its obligations under this Article 4 and shall pay all the costs, expenses, damages and loss that may be suffered or incurred by the Company, its personnel, its representatives and its subcontractors, if any, whether on the site where the sample was taken and collected, during the shipping thereof or in the Company’s laboratories or on its premises.
The client shall bear all the costs associated with the removal of the hazardous materials and waste generated by the sample, irrespective of whether or not they were described as such by the client.
4-2. Ownership of the samples
The client shall remain the owner of the samples. The client authorises the Company to use the samples free of charge for the purposes of the Services ordered. The Company cannot under any circumstances have its liability triggered in the event of damage to the sample entrusted for the fulfilment of the Order.
4-3. Post-Services options for the samples
The Order shall specify whether, upon completion of the Services, the sample must be returned to the client, destroyed or stored (and, as applicable, the desired storage period). Absent any instructions in the Order or specific regulations regarding its storage, the sample or the remnants thereof shall be stored by the Company for a maximum period of 30 (thirty) calendar days as from the end of the corresponding Services, unless the sample is comprised of perishable goods, in which case the maximum storage period will be reduced.
At the end of said storage period, unless specified otherwise in the Order, the sample or the remnants thereof shall be destroyed by the Company, without it being necessary to inform or notify the client beforehand. The client shall pay for the entirety of the expenses and costs that result from the returning, destruction or storage of the sample, including in the event that the amount of said expenses is not expressly stated in the Order:
→ If the sample is returned to the client: the cost of shipping, insuring and packing the sample shall be paid by the client. Samples will be shipped at the client’s risk and jeopardy; the Company’s liability cannot be triggered for any reason whatsoever in the event of the damage, deterioration, total or partial loss of the sample during shipping.
→ In the event of destruction: the client shall pay all of the expenses and costs of destruction, including in the event that the applicable law and regulations (on hazardous materials and waste, for example) would trigger additional and/or specific destruction expenses.
→ If the sample is stored: the Company undertakes to take reasonable steps in accordance with standard practices in order to store the sample at the client’s expense and risk. The client shall pay all of the storage expenses, including the additional expenses that result from the obligation of having to comply with the law and the specific regulations on hazardous materials and waste.
5. Supply of the Products
The Products ordered are delivered Ex Works (2020 Incoterms), i.e., the products ordered by the client are made available at the location specified in the Order or, if no location is specified, in the warehouses of the Company before being collected by the shipper.
Delivery times are only stated by way of indication. Failure to meet delivery times cannot result in the cancellation of the Order, or refusal of the delivery by the client, or the payment of penalties or damages by the Company.
Partial deliveries may be made of an Order for Products.
When the shipper makes the Products available, the client undertakes to carry out all the inspections and tests that are necessary in order to detect any deterioration, missing items, apparent defects or nonconformance of the Products delivered, with respect to the shipment note, the delivery note and the Order. Any and all refusals, claims or reservations must, in order to be taken into account, be stated on the shipment note in the presence of the shipper, duly signed and stamped, and sent to the shipper and the Company by registered letter with acknowledgement of receipt within three (3) days of receipt (Article L. 133-3 of the French Commercial Code). If no refusals, reservations or claims are recorded in accordance with the above conditions, the Products shall be deemed to conform to the order.
Any deterioration, non-conformance or defects that cannot reasonably be identified when the Products are handed over by the shipper must, in order to be taken into account by the Company, be the subject of a claim that is made within a maximum time-limit of seven (7) days as from the handover thereof by the shipper, which shall be sent by email and registered letter with acknowledgement of receipt and must imperatively contain the following information: the Order reference, the subject of and the reasons for the claim. It is the client’s responsibility to provide all proof of the reality of the defects, non-conformance or deterioration declared, so that this can be confirmed by the Company.
6. Price and terms of payment
6-1. Prices
The price of the Services and of the Products invoiced to the client is that stated in the Order (unit price excluding tax) or, if there is no written order, shall correspond to the rate in force at the time of the beginning of performance of the Services or delivery of the Products.
Except as otherwise provided for in the Order, the prix is expressed in euros, excluding taxes, excluding customs duties, excluding currency conversion fees, excluding sample collection expenses, excluding packaging, and excluding shipping and insurance expenses, which will be invoiced in addition. The applicable taxes are those that are in force on the date of invoice.
The prices will be established on the basis of the data and information provided by the client and for normal performance conditions of the Services or normal delivery conditions for the Products.
The Company reserves the possibility of applying an increase to the price of the Services defined in the Order (i) in the event that the specific properties of the samples, which are not known at the time of the Order, generate additional costs for the performance of the Services ordered or (ii) in the event of an amendment to the regulations or of the entry into force of a new regulation or of new recommendations being made by the administrative and oversight authorities that are applicable to the Services ordered and/or to the Company and that lead to an increase in the cost of performance of the Services for the Company.
As of the date of entry into force of these ToS mentioned above, in the event of an increase in the cost of providing the Services or supplying the Products for reasons other than those set forth in the preceding paragraph, the Parties agree to meet quarterly to discuss the application of a price increase for the Services and Products. In this respect, the Parties agree that in case of agreement between them, this increase in the price of the Services and Products shall be applicable to the Order as from the first day of the following quarter. If the Parties fail to reach agreement one (1) month after the first meeting between the Parties on this subject, the Company may give notice to the client to terminate the relevant Order, quotation, offer or contractual agreement, subject to three (3) months’ notice. The prices originally agreed to in the Order shall continue to apply during the period of notice.
6-2. Invoicing
The Company will send the client invoices in electronic format for the attention of the personnel and/or representatives of the client named in the Order.
The client acknowledges that the invoices sent electronically are admitted as originals by the Courts and are proof of the data they contain, with said proof being admissible, valid and enforceable between the Parties, in the same way, under the same conditions and with the same evidentiary value as an invoice that is drawn up, received or stored in printed form.
All printouts of invoices and all printouts of duplicate invoices or audit or analysis reports requested by the client will result in a fixed surcharge of 15 (fifteen) euros exclusive of tax per document being invoiced.
All disputes of an invoice by the client must, in order to be admissible, be notified to the Company by registered letter with acknowledgement of receipt within a timelimit of 30 (thirty) calendar days as from the date of invoicing. If the invoice is not disputed during this timelimit or if the client pays, even partially, the invoice shall be deemed to have been definitively accepted by the client, which shall be deemed to have waived the right to dispute it.
All Orders for Services or Products will give rise to a minimum invoice amount of 50 (fifty) euros excluding tax, including when the cost of the Service or of the supply of the Product is less than this amount.
6-3. Payment
Unless stated otherwise in the Order, payment must be made within a maximum time-limit of thirty (30) days after the date of invoice. The preferred method of payment is by direct debit or bank transfer. All other payment methods will require the Company’s prior written agreement. Payment will not be deemed to have been made until the price has actually been received by the Company.
No discounts are granted for early payment.
Payment of the Company’s invoices via offsetting, for any reason whatsoever, is only possible with its prior, express, written agreement.
All late payments of all or part of the Company’s invoices will, as of right, and with no need for a reminder or formal notice, oblige the client to pay default penalties, which shall accrue for each day past due on the basis of the rate applied by the European Central Bank to its most recent refinancing transaction, increased by 10 percentage points, as well as a flat-rate indemnity to cover collection costs of €40, without prejudice to the Company’s right to request the payment of the default interest defined by law and the reimbursement of the other collection costs it has incurred, upon presentation of supporting documents.
Failure by the client to pay even one invoice when due may also cause, following standard notification and after prior formal notice that has remained without effect for a period of five (5) days, (i) the immediate suspension of the Order concerned, and also of all the client’s other current Orders, (ii) all monies owed by the client in respect of the Order concerned to fall due immediately and/or (iii) the cancellation of the Order concerned, for which the client would be liable, without prejudice to the Company’s right to claim damages.
7. Retention of title clause
THE PROPRIETARY RIGHTS AND ALL THE OTHER RIGHTS, INCLUDING THE INTELLECTUAL PROPERTY RIGHTS AND RIGHTS OF USE CONCERNING THE RESULTS, REPORTS, PRODUCTS, EQUIPMENT, MATERIALS, SOFTWARE APPLICATIONS AND WORK PERFORMED WITHIN THE SCOPE OF THE FULFILMENT OF AN ORDER WILL ONLY BE TRANSFERRED TO THE CLIENT UPON PAYMENT IN FULL BY THE CLIENT OF ALL MONIES, NAMELY THE PRINCIPAL, INTEREST, PENALTIES AND INCIDENTAL AMOUNTS, THAT ARE OWED IN RESPECT OF SAID ORDER; PAYMENT WILL ONLY BE DEEMED TO HAVE BEEN MADE UPON ACTUAL RECEIPT OF SAID MONIES.
Until these monies have been paid in full by the client, the client will not have any rights, in particular proprietary rights or rights of use, to the results, reports, products, equipment, materials, software applications and work and, consequently, shall refrain from using them and exploiting them for any purpose and in any way whatsoever.
Until the price of the Products has been paid in full, the client must not resell them or use them as collateral. In the event of an attachment or any other action by third parties concerning the Products, the client must inform the Company of this without delay so that it can safeguard its rights. In the event that even one invoice is not paid in whole or in part, the Products must, at the Company’s request, be returned to it immediately at the client’s expense and risk; the Products that are in the client’s possession shall be deemed to be those for which payment has not been made. As necessary, the client authorises the Company or any person empowered by it to access its premises and/or its operations in order to recover Products within the usual opening hours. If the Products that are the subject of the retention of title clause have been resold by the client, the Company’s claim shall be automatically transferred and apply to the receivable for the sale of said Products. To this end, the client declares that it assigns to the Company all the receivables that will arise from reselling Products for which payment is outstanding, title to which has been retained.
8. Intellectual property
8.1 Unless expressly agreed and stipulated otherwise in the Order, all of the Company’s intellectual property rights, in particular those concerning the Services and Products, including, but not limited to, the patents, studies, design rights, models, blueprints, trademarks, accreditation or certification marks, logos, trade names, commercial names, copyrights, computer programs, software applications, source codes, databases, knowhow, manufacturing secrets, technical or scientific methods, processes and knowledge, technologies, ideas, concepts, improvements and enhancements, including when they are developed during the fulfilment of the Order, will remain the exclusive property of the Company and will not be assigned or transferred in any way whatsoever to the client. The client shall refrain from claiming any right whatsoever to these elements and from contesting the validity thereof.
Only the ownership of the results will be transferred to the client, provided that they have been paid in full by the client. Notwithstanding the transfer of ownership of the results to the client, the Company is expressly authorised to retain said results and to publish them anonymously in a way that does not make it possible to identify the client.
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, dissemination, representation or reproduction by the client 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 client is expressly authorized by the latter only on the assumption that the client reproduces the Company’s report in full in its own report for its own clients.
Similarly, the client is not authorised to publish, display publicly, reproduce or circulate the Company’s accreditation or certification mark. Any misuse or abuse of the mark or reference to the accreditation, which is noted by the Company or brought to its attention, will be reported to the client and appropriate action may be taken. The reproduction, public display, circulation or publication by the client of the report in its entirety in its own report to its own clients is not regarded as use of the accreditation mark. In all cases, the client shall hold the Company harmless from all consequences, damages, claims, complaints, actions, lawsuits, payments, indemnities or compensation, of any kind whatsoever, that may result from the use, the circulation, the publication, the public display or the reproduction of the results, reports and documents issued by the Company, including where such use was authorised ahead of time by the Company.
9. Guarantees / responsibilities
9.1 Orders will be fulfilled under the supervision and control of the Company, under the best possible conditions and in accordance with the applicable standards.
It is the client’s responsibility, in particular when required by the key issues and the context, to control and verify, at its expense and under its responsibility, the coherence of the results, and even to request a second analysis to ensure the accuracy of the results delivered by the Company. In the event that it is clear that the results released are inaccurate or inconsistent, it is the client’s responsibility to inform the Company of this immediately and not to use or exploit said results in any way whatsoever.
9.2 The Company does not guarantee under any circumstances that the Services and/or the Products will make it possible for the client to attain a given target or achieve the return on investment that is expected or hoped for by the Client on account of the Services and/ or the Products. The client alone is responsible for the use and exploitation of the results, reports and, more generally, the Services performed and the Products supplied by the Company.
In particular, if the Company has not been expressly mandated by the client, pursuant to an Order, to define a sampling plan (that specifies the purpose of the samples to be analysed, and the frequency of the sampling and analysis) and/or the definition of the precise scope of the analyses to be performed, or if the client has not followed the Company’s recommendations, the Company’s liability cannot be triggered under any circumstances by the client or third parties, in the event that the sampling plan implemented and/or the scope of the analyses and services to be performed are found to be insufficient and/or unsuitable with respect to the objective expressed or expected by the client.
The exploitation of the results is exclusively the purview of the client, which alone must take, under its exclusive responsibility, the steps that the client deems to be appropriate.
9.3 The client is responsible for the perfect preparation and safe transmission of the samples provided to the Company for the performance of the Services. Unless there is an express provision to the contrary in the Order, the Company is not liable under any circumstances for any losses, deterioration or damage that may occur during the taking, collection or shipping of the samples. The client alone is responsible for the safety, shipping, packing and insurance of the sample between the sample being taken and arriving at the laboratories or establishments where the Services are performed.
9.4 The client represents, warrants and undertakes to ensure that all the samples that are sent and/or intended to be analysed pursuant to an Order are in a stable condition and do not pose any danger. The client undertakes to indemnify in full the Company, its personnel, its representatives and its sub-contractors, if any, for all damage, loss, costs, expenses and harm, whether direct or indirect, regardless of the nature thereof, that they may have suffered or incurred on account of the samples, even if the client informed the Company of the potential risks posed by said samples.
9.5 Unless there is an express written agreement to the contrary between the Parties, the contractual relationship only exists between the client, from which the Order originated, and the Company. No contract or agreement entered into by the client on behalf of a third party, with a third party or that benefits a third party can produce any effects of any kind with regard to the Company or create any binding obligations or commitments for the Company. Consequently, the client shall hold the Company harmless in full from all actions, claims or complaints from a third party that is linked to the client or to the Order in any way whatsoever, in any form whatsoever and for any reason whatsoever, and undertakes to compensate the Company in full for all damage, compensation, losses, costs, expenses and interest that the Company may be compelled to pay to said third party.
10. Liability limitation
The liability of the Company (including all persons associated with the Company for the fulfilment of the Order, in particular its personnel and its representatives) can only be triggered by the client if the client proves the existence of direct and immediate harm that results from gross or wilful negligence committed by the Company in the fulfilment of the Order, and only if the client has notified its claim to the Company by registered letter with acknowledgement of receipt within 6 (six) months of the harm being discovered.
In all cases, the Company’s liability is expressly excluded in the event of force majeure, as defined in Article 11 of these ToS, or in the event of breaches by the client of its own statutory, regulatory or contractual obligations in respect of the Order.
If harm occurs, the client undertakes to make all arrangements and take all steps, in a timely manner, to mitigate its loss to the greatest extent possible. All breaches by the client of this obligation may trigger its own liability and/or limit that of the Company.
In all cases, in the event that the Company’s liability is triggered, for any reason whatsoever and regardless of the type of harm (with the exception of bodily injury), the amount of the compensation required of it (including, in particular, but not limited to, indemnities, penalties, additional expenses, lawyers’ fees and legal defence costs, as the case may be) may not under any circumstances exceed, for all amounts combined, the lowest of the following amounts: (i) the amount of the direct and immediate harm caused by the gross or wilful negligence committed by the Company in the fulfilment of the Order concerned and (ii) ten times the amount excluding taxes invoiced by the Company to the client in respect of the Order concerned, within the limit of a cap of 15,000 (fifteen thousand) euros.
The Company can never be required to compensate indirect harm and consequential or ensuing loss suffered by the client and/or a third party, or loss of turnover, loss of earnings, loss of expected savings, loss of value of a going concern, loss of a contract or of a business opportunity, or harm to the image or reputation of the client or of a third party.
The client expressly waives all other action against the Company’s insurers and shall take personal responsibility for obtaining, and guarantees to the Company and its insurers that it will obtain, an equivalent waiver from the client’s own insurers.
The client expressly accepts the application and enforceability of this liability limitation clause with respect to its contractual relations with the Company and acknowledges that the price of the Services and/or of the supply of the Products was determined in light of this liability limitation clause.
11. Force majeure
The Company may not be held liable for the total or partial failure to fulfil its obligations in respect of these ToS and an Order, if said non-fulfilment is caused by an event that constitutes force majeure within the meaning of French law and case law. In addition to the statutory and case-law definition, the Parties have agreed that the following shall be deemed to be force majeure events that exclude the Company’s liability: fires, explosions, floods, storms and other natural disasters, pandemics, wars, including civil wars, uprisings and invasions, riots, cyberattacks, shortages, difficulties with or interruptions of supplies of materials or shipping, accidents that affect production, abnormal certification times, amendment or entry into force of a new law or regulation that impacts the Order, total or partial strikes or other industrial action involving the personnel of the Company or that of its suppliers or service providers, occupations of factories or premises, administrative decisions, nonrenewal or withdrawal of the necessary administrative authorisations through no fault of the Company, or acts of state.
The Company shall inform the client as soon as possible of the occurrence of one of said events that affects the fulfilment of the Order and may, depending on the circumstances, cancel the current Order, or suspend or delay the fulfilment thereof without the client being able to claim any form of compensation in this regard or being able to cancel its Order, unless the Company provides its prior written agreement.
The occurrence of a force majeure event does not release or exempt the Parties from their payment obligations under these ToS and the Orders.
12. Confidentiality
The Company undertakes to treat the analysis report that is delivered to the client confidentially and shall refrain from using or disclosing said report to any third party whatsoever, for any reason whatsoever, except to prove the fulfilment of the Order and the performance of the Services and, in particular, to obtain payment therefor, or at the request of a relevant administrative authority or in order to execute an enforceable court decision.
The Company also undertakes to treat confidentially all the technical, commercial, financial or other information that may be disclosed to it for the fulfilment of an Order, provided that it is identified as confidential by the client. The information obtained or generated during the fulfilment of an Order may, in any event, be disclosed by the Company, without the Company’s liability being triggered, (i) to its service providers and/or subcontractors who are involved in the fulfilment of the Orders, who undertake to keep said information strictly confidential, (ii) to all accreditation audit organisations for an audit of the Company and (iii) to all administrative and judicial authorities that request said information.
The client reciprocally undertakes to treat as confidential all technical, scientific, commercial, financial and information of any other type concerning the Company of which it may be aware in the fulfilment of an Order, including information concerning the Company’s Intellectual Property Rights, the composition of the Products and the contents of the software delivered by the Company, until said information falls into the public domain other than through a breach of this confidentiality obligation by the client.
13. Personal data
For the fulfilment of these ToS and of 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 natural persons with regard to the processing of personal data and on the free movement of such data (hereinafter “GDPR”), as well as of French Law no. 78-17 of 6 January 1978, as amended, on computerised data processing, personal data and civil liberties (hereinafter jointly referred to within this Article 13 as the “Regulations”). The Parties undertake to comply with the Regulations with regard to such data processing.
The terms used in this Article are deemed to have the same meaning as that given to them by the Regulations. The client alone will be the controller for the personal data processed on its behalf, whether by the client itself or by third parties. When the client discloses personal data to the Company, the client must first ensure that the data subjects have been informed of this disclosure and, where necessary pursuant to the Regulations, that their authorisation has been obtained. The client shall hold the Company harmless from all claims, complaints, actions or lawsuits by third parties, in particular data subjects and the Supervisory Authorities (such as the CNIL) on account of failure to comply with the Regulations.
For the management of its relationship with the client, the Company may collect and/or process personal data concerning the client’s staff, representatives and service providers or the client’s own clients. Said data is primarily identification data for the data subjects (names, telephone numbers and business email addresses, and functions), as well as all the other information that is strictly necessary for the purposes of the processing described below.
Personal data will be processed by the Company for the purposes of entering into and fulfilling these ToS and Orders for Services and/or Products, including the management of the contractual and commercial relationship, deliveries, invoicing, payment, client accounting, potential claims, and moreover with the aim of carrying out direct marketing actions and satisfaction surveys.
These forms of processing are based on the need for the Company to fulfil its contractual obligations in connection with the fulfilment of these ToS and Orders, and to comply with its statutory and regulatory obligations. They are also justified by the Company’s legitimate interest in implementing them.
Personal data is accessible only to authorised members of the Company’s personnel who require knowledge thereof, as well as to its outside service providers and sub-contractors, if any, who are required to respect the confidentiality of the data to which they have access, who shall ensure that they take all necessary steps to ensure the confidentiality and security of said data and who undertake to process data only for the precise operation for which they must be involved. Personal data may also be disclosed in a manner other than those provided for above, in order to fulfil a statutory or regulatory obligation, or at the request of an administrative authority or a judicial authority.
Personal data will be retained throughout the business relationship between the Company and the client, then stored in intermediate archives, access to which is restricted and secure, throughout the applicable statutory limitation and/or storage periods. In particular, the Company is required by law to retain certain information for a period of up to 10 (ten) years after the end of the business relationship with the client, for accounting and tax purposes. At the end of this period, the data will be definitively erased, with the exception of the data that will be made anonymous for statistical and research purposes.
If personal data is transferred to a country outside the EU and the EEA, legal instruments that are recognised as appropriate by the Regulation in terms of effecting the transfer concerned shall be implemented.
Persons whose personal data is processed by the Company shall benefit, subject to providing proof of their identity, from a right of access, rectification or erasure with respect to their personal data, from a right to restrict processing, from the right to object to processing, and from the right to the portability of their data. These rights must be exercised under the conditions and in accordance with the terms provided for by the Regulations. All requests must be sent by email to: fr_rgpd@eurofins.com or by postal letter to the address of the Company’s registered office. Data subjects can also file a complaint with the supervisory authority (CNIL), the headquarters of which is located at 3 place de Fontenoy, 75007 Paris, France.
PROCESSING - When the Company processes personal data in the capacity of processor, on behalf of and as instructed by the client, a specific agreement that defines the respective obligations of the client and the Company for said processing shall be signed.
14. Laws on economic sanctions
14.1. For the purposes of this clause, the terms: “Economic Sanction(s)” means all economic sanctions, restrictive measures or trade embargos adopted by the United Nations Security Council, the European Union, the United States of America or any other sovereign state. “Law on economic sanctions” means all laws, all regulations or all decisions that promulgate or impose economic sanctions.
14.2. The client undertakes and guarantees that, throughout the duration of its contractual relations with the Company:
→ The client is not and will not be the target of any Economic Sanctions.
→ To the best of its knowledge, the client is not and will not be controlled or held through beneficial ownership by a person who is subject to Economic Sanctions.
→ The client complies with and will comply with all the Laws on economic sanctions. Without limiting the scope or the general nature of the above, the client shall refrain (i) from directly or indirectly exporting, re-exporting, transshipping or delivering in any other way the Services and Products or any other service in breach of any Law on economic sanctions, or (ii) acting as a broker, financing or facilitating in any other way any transactions in breach of any Law on economic sanctions.
→ And, the client is not engaged in any proceedings and is not being investigated in any way by the authorities on account of a suspected breach of a Law on economic sanctions.
14.3. The client shall indemnify the Company, all companies that are affiliated to the Company (sister, holding and parent companies), its personnel, its agents and its representatives for all losses, forms of liability, damages, fines, costs (including, but not limited to, court costs) and expenses incurred by, or paid by the Company on account of the client breaching its undertakings specified in paragraph 14.2 above.
14.4. If the Company finds that the client has breached or failed to comply with this Article 14, the Company may, without prejudice to its right to seek damages from the client:
→ Suspend the fulfilment of all current Orders, in whole or in part, until the client can legitimately resume the fulfilment of the Order(s); and/or
→ Initiate discussions with the client with a view to the possible modification of the current Orders, to enable the fulfilment thereof in compliance with the Laws on economic sanctions; and/or
→ Inform the client of the immediate cancellation of all or part of the Order.
No compensation shall be owed to the client on account of the implementation of any one of the penalties provided for in this paragraph 14.4.
15. Applicable law / disputes
These ToS, all Orders and, more generally, the contractual relations between the Parties, are governed by French law, to the exclusion of the international rules that are applicable to conflicts of laws and of those that result from the Vienna Convention on Contracts for the International Sale of Goods.
The Parties agree that all disputes to which these ToS and an Order may give rise between them, concerning the validity, entry into, construction, performance and termination thereof, the consequences and/or the aftereffects thereof, shall be submitted to a conventional mediation procedure prior to any legal proceedings, except in the event of claims made through urgent proceedings, ex parte proceedings, third-party notices or interlocutory applications, for which the matter may be directly brought before the Court that has jurisdiction as to subject-matter in the district of the Company’s registered office.
The Party that wishes to implement the mediation must inform the other Party of this by registered letter with acknowledgement of receipt, and propose the name of a trained mediator who is qualified to mediate. The other Party shall have a time-limit of eight (8) days in which to notify its disagreement as to the name of the proposed mediator, failing which it will be deemed to have accepted the name of the proposed mediator. In the event of a disagreement between the Parties over the choice of a mediator, the first Party to take action may request the appointment of a mediator by the President of the Commercial Court of competent jurisdiction in the district of the Company’s registered office.
The mediator’s expenses and fees shall in all cases be split equally between the Parties.
Absent an agreement between the Parties within two (2) months of the matter being referred to the mediator, the Parties will again be free to take action and may bring the matter before the Court that has jurisdiction as to subject-matter in the district of the Company’s registered office, on which they confer exclusive jurisdiction to resolve the dispute, notwithstanding multiple defendants, interlocutory applications and third-party notices.
All client actions based on these ToS and an Order must, in order to be admissible, be brought before the courts of competent jurisdiction pursuant to this Article within a maximum time-limit of one (1) year, in accordance with Article 2254(1) of the French Civil Code.
16. Miscellaneous provisions
16.1 Code of Ethics: The Company is committed to high ethical standards in conducting business. The standards to which the Company is committed are set out in the Eurofins Group Code of Ethics.
16.2 Severability: If one of the provisions of these ToS and of an Order are held to be invalid or inapplicable, the Parties shall consult with each other in order to agree on a provision or provisions to replace the invalid provision(s) and that will make it possible to fulfil, as effectively as possible, the economic objective and the intention of the invalid provision(s). All the other provisions shall retain their full force and scope, unless these ToS and the Order concerned become devoid of purpose or impossible to perform.
16.3 Absence of waiver: No tolerance, regardless of the nature, the extent, the duration or the frequency thereof, may be deemed to create any form of right whatsoever, nor may it be construed as a waiver of any one whatsoever of the provisions of the ToS and of an Order; each of the Parties reserves the right to demand compliance therewith, even retrospectively.
16.4 Language: The original version of these ToS is written in French and takes precedence over all other versions or translations of these ToS into another language.
16.5 Notices: Without prejudice to any provisions to the contrary in these ToS, all notices between the Parties shall be sent by letter in printed form in a manner that allows for proof of receipt thereof (registered letter with acknowledgement of receipt), to the address of the registered office of the recipient Party; all time-limits shall start to run from the date of the first delivery attempt of said letter to the recipient Party.
16.6 Prohibition on hiring away employees: The client undertakes not to hire away, recruit or give work to, either directly or via an intermediary, any member of the Company’s personnel who participated in and/ or who worked on the fulfilment of an Order during the period of performance of the Services ordered, for a period of two (2) years following the end of their contractual relations in respect of said Order, even if the initial approach is initiated or instigated by the Company employee themselves. The Company may, on a case-by-case basis, at the request of the Client and/ or the employee concerned, release the Client from this commitment by express, prior written agreement.
PART TWO - Specific provisions applying to on-line purchases
A) Provisions supplementing, deviating from or replacing certain provisions of the general terms and conditions of sale and the provision of services (part one)
1. Scope of application
All orders placed on-line require the consultation and prior acceptance of the general terms and conditions of sale and the provision of services referred to above, these specific terms and conditions applying to on-line purchases and the general terms and conditions of use of the on-line purchasing site(s).
These specific terms and conditions applying to on-line sales (referred to hereinafter as the “GTCS”) apply to all electronic orders placed by professionals on this Websitehttps://mysupportair.env.eurofins.fr/ (referred to hereinafter as “MySupportAir”).
2. On-line orders
By way of derogation from Article 2 - “Orders” of the General Terms and Conditions of Sale and the provision of services, orders may be placed according to the terms and conditions described below.
2-1. Identification and sending of the Quote
The Customer must initially be in possession of a personalised Quote in order to be able to place on order on MySupportAir. In the next stage, in order to place the order, the Customer must login with his/her email address and password obtained thanks to business relations with Eurofins or which he/she may obtain by contacting Eurofins Analyses de l'Air at the following email address: prepasupports-air@eurofins.com. The Customer will not be able to place an order on MySupportAir without first having received this Quote
2-2. Order terms
A Customer who wishes to order one or more sampling products on MySupportAir must select the corresponding reference(s) and quantities. Once the Customer has selected the required products, he/she must login, enter the delivery address and choose the required date for receipt of the order. The delivery method is defined automatically by MySupportAir depending on the requested delivery date, country of shipment and type of reference selected.
2-3. Choice of delivery period
By way of derogation from Article 6 - “Delivery and execution deadlines” of the General Terms and Conditions of Sale and the provision of services, the applicable delivery and execution deadlines are presented on the “Delivery” page which can be accessed via the following link: https://mysupportair.env.eurofins.fr/content/1-livraison.
2-4. Validation of the delivery period
Once the Order has been validated by the Customer, the delivery date has to be confirmed by Eurofins Analyses de l'Air within the period of twenty-four (24) hours. If the delivery deadline requested by the Customer cannot be respected, Eurofins Analyses de l'Air will notify the Customer and will indicate the earliest date by which the Order may be received. The Customer will then receive acknowledgement of receipt confirming the delivery date.
Sundays and public holidays are not considered to be working days. In all events, the Order shall be executed within a maximum of thirty (30) days from the day after the date on which the Customer validated the order, except in the event of delivery problems outside the control of Eurofins.
2-5. Order confirmation
Once the delivery date has been validated, the Customer shall receive acknowledgement of receipt validating the Order and containing a summary of the items ordered.
2-6. Sending the product and invoice to the Customer
When the product has been sent, the Customer will receive a digital invoice by email.
3. Purchase price and payment terms
The applicable prices are the ones stated in the Quote sent to the Customer on the basis of which the Order is placed.
The invoice is not paid on the MySupportAir order platform, but according to the terms agreed upon between the Parties.
B) General Terms and Conditions of Use of the on-line ordering site
These General Terms and Conditions of Use (GTCU) of MySupportAir do not replace but rather supplement the General Terms and Conditions of Sale and the provision of services and the specific provisions applying to on-line orders.
1. Definition
CUSTOMER(S): Professional(s) within the meaning of the regulations in force who hold a customer account with Eurofins Analyses de l'Air and possess full legal capacity.
2. Aim
Eurofins Analyses de l'Air has developed an on-line ordering service called “MySupportAir”, referred to hereinafter as “MySupportAir”, which can be accessed via the following web address https://mysupportair.env.eurofins.fr/.
MySupportAir is a tool which enables CUSTOMERS to order on-line sampling products.
3. Accessing MySupportAir
Only CUSTOMERS are able to place orders via this platform.
Eurofins Analyses de l'Air reserves the right to request proof of a CUSTOMER account from the CUSTOMER at any time. Eurofins Analyses de l'Air may refuse the order if this document is not provided.
4. Obligations of the parties
4-1. Obligations of Eurofins Analyses de l'Air
Eurofins Analyses de l'Air undertakes to do its utmost to ensure that MySupportAir is available for the CUSTOMER, to protect the confidentiality of published data and to prevent the latter from being accessed by unauthorised third parties.
4-2. Obligations of the CUSTOMER
The CUSTOMER undertakes to comply with the following obligations:
- Obtaining technical resources (in particular, computer hardware, software, appropriate electronic communication networks, suitable maintenance, anti-virus, etc.) to use MySupportAir;
- Not attempting to access data other than that which concerns the services provided by Eurofins Analyses de l'Air;
- Covering all the costs incurred in accessing MySupportAir, notably electronic communication and computer hardware and software maintenance;
- Notifying Eurofins Analyses de l'Air as soon as possible in the event of any faults or malfunctions noted or any unauthorised access to MySupportAir ;
- Refraining from using his/her user account on the https://mysupportair.env.eurofins.fr/ site in a way which could be detrimental to MySupportAir or the activity of Eurofins Analyses de l'Air.
In the event of non-compliance by the CUSTOMER with the obligations under these GTCS, or more generally the incorrect use of MySupportAir, Eurofins Analyses de l'Air may lawfully decide to prohibit the CUSTOMER from placing orders on MySupportAir.
5. Intellectual property
Eurofins Analyses de l'Air shall hold and retain all intellectual property rights, including the rights of reproduction associated with the content of MySupportAir. Therefore, any partial or total reproduction of the website and parts thereof shall be strictly prohibited without the written authorisation of Eurofins Analyses de l'Air. The use by the CUSTOMER of the name and/or brand and/or any distinctive signs of Eurofins Analyses de l'Air, even as a commercial reference, shall be subject to prior authorisation and may only take place according to the terms and form specifically agreed upon beforehand in writing by Eurofins Analyses de l'Air and must not be detrimental to Eurofins Analyses de l'Air in any way.
6. Responsibilities
6-1. Site access
The CUSTOMER must acknowledge these terms and conditions of use of MySupportAir and must agree to respect them when using the https://mysupportair.env.eurofins.fr/ website. Eurofins Analyses de l'Air shall not be liable for any direct or indirect damage stemming from accessing MySupportAir, notably in the event of identity theft or use of MySupportAir and/or its information, including inaccessibility, data loss, damage, destruction or viruses which may affect the user's IT equipment and/or the presence of viruses on the site. The CUSTOMER shall specifically refrain from invoking the liability of Eurofins Analyses de l'Air in the event of data loss, malfunctions or service interruptions stemming from a technical cause or the direct of indirect damage which may be incurred as a result.
Although Eurofins Analyses de l'Air strives to provide reliable content on MySupportAir, it cannot guarantee that the content will be free from inaccuracies or omissions and cannot be held responsible if this is the case. Eurofins Analyses de l'Air reserves the right to make changes to the content or presentation of MySupportAir at any time without notice. Users therefore acknowledge that they use this information under their sole liability.
6-2. Hypertext links
The site may contain links to other sites or other Internet sources. Since Eurofins Analyses de l'Air cannot control these sites and external sources, it cannot be held responsible for the content, advertisements, products, services or any material available on or via these sites or external sources. These links are provided to users of the https://mysupportair.env.eurofins.fr/ site as a service. Said users are solely responsible for deciding whether to activate the links. We should point out that non-affiliated sites are governed by their own conditions of use.
7. Contact relating to MySupportAir
CUSTOMERS may send any questions concerning the operation of MySupportAir or any complaints by email to prepasupports-air@eurofins.com. The CUSTOMER must ensure that the email has been received by its recipient.
Eurofins Analyse de l'Air wishes to draw the attention of its CUSTOMERS to the fact that messages sent via the Internet may be intercepted in the network. The confidentiality of messages can therefore not be guaranteed until they reach Eurofins Analyse de l'Air.