1- Scope of application - Opposability
These General Conditions of Service (hereinafter referred to as "GCS") form the basis of the contractual relationship between WatchFrog SA (hereinafter "the Company") and the Customer designated in the quotation or offer, regarding which the GCS are an inseparable annex. The Company and the Customer are together referred to as "the Parties". The GCS apply to the provision of analysis services (hereinafter "the Services"). The acceptance by the Customer of the Quotations and Offers and their start of execution entails acceptance of these GCS and also entails waiving the right to invoke the provisions of its General Conditions of Purchase or of any other provision contained in its commercial documents, of any nature whatsoever, that would contradict the present GCS, regardless of when they are made known to the Company. Any derogation from these GCS must be included in the Offer or Quotation or be the subject of a written document signed by a person duly authorized to represent the Company.
2. Order format
Requests for Services may be in the form of specifications provided by the customer or any other form of expression of needs, followed by the issuance of a written offer by the Company (hereinafter referred to as the "Quote" or "Offer") in paper or electronic form, with these GCS attached. The Company also provides advice or information regarding the scope and purpose of the Services so that the Customer may verify that the Services offered correspond to its need for expertise. Following approval of the Quote by the Customer and acceptance of these GCS without reservation, and returned in paper or electronic form, the order will be effective, together with the start date of execution. The Quote states its duration of validity, failing which any Offer or Quotes are considered to have expired after a period of 90 days from their date of issue if they have not been accepted by the Customer. The Quote or Offer complements or may modify these GCS and constitutes special conditions applicable to the Contract. The execution of the Services may begin, after receipt by the Company of the Customer's acceptance of the Quote, subject to receipt by the Company of the sample(s) to be analysed and all necessary information provided in the Quotation and after receipt of an advance payment on the Order if such a payment is specified. Any additional services requested by the Customer on samples received by the Company will result in the issuance of a new Quote and will be treated as a new order, which may include new indicative execution schedules. Sample collection or sampling logistics services are not included in the Quote and are therefore the responsibility of the Customer.
3. Prices and terms of payment
Prices are EXW and exclude transport, taxes and insurance. Services are carried out at the rate in force on the day of the Quote. Prices are set on the basis of the data provided by the Customer and for normal conditions of execution and delivery of the Services. The Company reserves the right to apply an increase to the prices shown in the Quote in the event that specific properties of the samples, unknown at the time of the Quote, generate additional costs for the execution of the Services. Such an increase could also be applied in the event of the introduction, during implementation of the Contract, of new regulations or of new recommendations to be applied by the Company resulting in an increase in the cost of the Services. Any price increases will be accompanied by a detailed justification of the reasons for them, as soon as the Company informs the Customer. The taxes applicable are those in force on the date of completion of the Services. Payment must be made within thirty days of the invoice date, by cheque or bank transfer, to the payment address specified in the invoice. Any other method of payment requires the prior approval of the Company. No discount shall be granted for a payment made earlier than specified in these GCS. In the event of non-payment at the due date of all or part of the sums due, the Company will be entitled to claim, without notice being required, a late penalty calculated by applying an interest rate of 5% (five per cent) per week of the amount due, and a €40 (forty euro) lump sum indemnity for recovery costs and to demand the reimbursement of all costs incurred by the recovery, out of court or through litigation, of any amounts owing greater than the amount of the lump sum indemnity for the recovery costs referred to above. Any dispute with regard to an invoice on the part the Customer must be notified to the Company by registered mail with acknowledgment of receipt within a period of 30 (thirty) calendar days from the date of invoice. After this period, the Customer is deemed to have irrevocably agreed to the amount invoiced. The Customer may not claim any compensation between the sums due to the Company for Analysis Services and the sums owed to it by the Company of any kind whatsoever and for any reason whatsoever, without prior agreement in writing from the Company. An Analysis Service or the sale of a Product entails a minimum invoice of €500 (five hundred euros) excluding tax. The Company may make the validity of the Offer dependent on payment of a deposit on the day of acceptance of the Quote of up to 100% (one hundred percept) of the price of the Services.
4. Supply of samples
Samples for analysis are the responsibility of the Customer, who determines their number and the sampling plan unless otherwise stipulated in the specific conditions of the Quote. These samples are provided by the Customer in a state which easily allows preparation of the analyses. The Company may conduct a pre-examination of the samples to verify their condition before conducting the analyses. If it emerges from this preliminary examination that carrying out the analyses is possible only under conditions different from those initially envisaged in the Quote – for example if the samples are mixed with extraneous substances or materials not mentioned by the Customer or if they are in a degraded state –, the Company has the right to terminate the Contract and demand the payment for the Services already carried out. In the event of a defect in the quality or quantity of the sample, the Company reserves the right to refuse implementations of the service. The duly informed Customer may then send a new sample. The Customer must ensure, and warrant, that no sample represents a hazard, including at its collection site, during transportation, in the laboratory or otherwise, for the Company's facilities, equipment, personnel and/or its representatives. The Customer must ensure the compliance of the sample with the laws and regulations in force concerning in particular their marking and hazardous waste, and undertakes always to communicate to the Company, in writing and before submitting the sample or the sampling operation, all relevant information concerning, in particular, the safety and security of the samples, their transport and disposal, including any known and/or suspected characteristics of toxicity and/or contamination, flammability and risk of explosion, and to inform the Company of the risks that samples may present for the Company’s premises, equipment and personnel, including at the sampling site, during transport or in the laboratory, in particular by using appropriate labelling. The Customer will bear all costs related to the disposal of hazardous waste resulting from the sample, whether or not described by the Customer as such.
5. Execution of Services
Delivery and analysis times are specified in the Quotes. Nevertheless, these are given only as an indication and do not constitute in any case a commitment in view of the methods of analysis used which require specific adjustments with respect to samples requiring uncertain time frames. The analysis reports are despatched electronically for the attention of the Customer representatives named in the Quote. However, exploitation of the analysis results is the sole responsibility of the Customer who alone implements, under its exclusive responsibility, the measures that it deems appropriate to implement following the results observed, in particular in order to decide on the health, environmental, technical, scientific and/or commercial strategy based on said Services and their results. If the Customer has a legal, conventional or property frame of reference relating to the results observed during the execution of the Services, the Company may, if the Quote mentions it, give a opinion regarding any difference between the observed results and the frame of reference used. The Customer expressly authorizes the Company, for any reason whatsoever, to subcontract the execution of the order to any qualified person of its choice.
6. Quality of the analysis and complementary analysis
It is understood between the Parties that the quality and completeness of the research on the endocrine disruptive effects contained in the Customer's samples depends on the analyses carried out by the Company but also on the quality of the samples submitted, the sampling method used, in particular its perfect execution, and the transport and storage conditions of the samples before analysis. The Customer’s attention of the is drawn to the fact that a sample cannot in itself be described as representative of the tested product if the Company has not itself defined the sampling plan. These considerations being taken into account, the results are deemed to comply with the samples provided. The Customer will have a period of 20 (twenty) working days from the reception of the results to formulate any objection to them. If the Customer wants a supplementary analysis, it will bear the related cost, on the basis of a new order, except if the results prove materially different from the initial analysis. A second analysis will be possible only if the Company has the original sample in sufficient quantity at the time of receipt of the Customer’s objection.
7. Storage of samples
The Customer remains the owner of the samples. The Customer authorizes the Company to use the samples free of charge for purposes of analysis, and specifies in its order (acceptance of the Quotation) whether, after analysis, the sample must be returned, destroyed or stored (as well as the duration of this storage), with the Customer fully bearing the financial burden of the choice made. The Company cannot under any circumstances be held liable in the event of deterioration of the sample provided for analysis. For any return of samples by the Company, transportation, insurance and packaging costs are borne by the Customer. Samples travel at the Customer's own risk, and the Company cannot be held liable for any reason whatsoever in the event of deterioration or loss during transport. If the Customer does not specify the fate of the sample after analysis, the sample or its remainder shall be kept by the Company, except for perishable commodities, for a maximum period of 15 (fifteen) calendar days from receipt of the analysis report by the Customer. At the end of this period, the sample or its remainder may be destroyed by the Company, without prior warning. The Customer shall bear the full costs of such destruction, including in the event that a change in the regulatory framework (on hazardous waste, for example) incurs additional destruction costs.
8. Retention of title – Publications – Patents and Trademarks
The right to use the reports and their results is subject to full payment of the agreed price. In the event that the Customer wishes to publish, represent, reproduce or, in general, disseminate the analysis report in any form whatsoever and in any medium whatsoever, it must first apply to the Company, which will be free to choose whether or not to agree, depending on whether the Company can be identified from the report. In any case, whether or not the distribution of the analysis report enables the Company to be identified, the Customer guarantees the Company against all consequences, of any nature whatsoever, arising from dissemination of the analysis report, in particular in the event that it is prejudicial to a third party or to the Company, and will cover the Company against any damages due to it for in compensation for harm suffered or that the Company would be obliged to pay to a third party, as compensation for harm following said dissemination. Even after full payment of the price by the customer, the Company reserves the right to keep, use and publish any analysis results in an anonymous way and which does not allow the Customer to be identified. Finally, the analysis results may be incorporated into any patent applications filed by the Customer or Third Parties only to the extent that the methods of analysis remain extraneous to any filing of said patent, even by equivalence of means.
Each of the Parties retains full ownership or possession over its pre-existing rights, in particular, intellectual property rights, patents, patentable and non-patentable inventions, discoveries and clean technologies, and more generally over its know-how, processes and methods, its Offers and Quotes, and its designs, model documents, protocols, equipment and any other scientific, technical and/or commercial data it possesses (hereinafter "Knowledge"). The other Party does not receive any such rights over the said Knowledge as a result of the contractual relations. It is also expressly agreed between the Parties that the provisions of these GCS are not intended to have the effect of depriving the Company of the right to re-use the methods and experience acquired in the execution of any Service. Thus the processes, technology, know-how and information used by each of the Parties for the execution of the Services, as well as any improvements and/or perfecting that may be made to them and any discoveries and/or inventions that may be derived from them in the framework of any contractual relationship, remain the exclusive property of said Party.
“WatchFrog”, “Frogbox”, “Bio endocrine test”, “Aqua test” and the other names, trademarks and trade names (hereinafter "Trademarks") under which the Company and its affiliates do business are and remain the sole property of the Company or its affiliates.
Unless specifically authorized, any use of the Trademarks is strictly prohibited without the prior written consent of the Company.
9. Guarantees and Responsibilities
For the implementation of Services, the Company will be held to an obligation of means. The Company remains free to determine alone the methods, procedures, analysis techniques, products or other elements necessary for the implementation of the Services. Each analysis report concerns solely the sample(s) analysed by the Company. If the Company has not been expressly mandated and has paid for the definition of a sampling plan (defining the purpose of the samples and the frequency of sampling and analysis) and/or the definition of the precise scope of analyses to be carried out, or if the Customer has not followed the Company’s recommendations, the Company shall not be responsible in any case for the sampling plan and/or the extent of the analyses to be carried out if they prove to be insufficient and/or inappropriate. The Customer is responsible for the proper routing of samples sent to the Company for analysis. Unless otherwise agreed in writing, the Company will not accept liability for loss or damage that may occur during transport, in an establishment or on a site where logistics or sampling services take place. The Customer will at all times be responsible for the safety, packaging and insurance of the sample from collection to its dispatch to the Company’s laboratories or establishments. The Customer declares and guarantees that all the samples to be analysed by the Company are in a stable and non-dangerous state, and undertakes to fully bear the loss, direct or indirect, whatever its nature, suffered by the Company in the event that a sample causes, in particular to the Company, one of its employees or any person working on its behalf, any kind of damage, even if the Customer has informed the Company of the possible risks presented by the sample. Unless otherwise agreed by the parties, the contractual relationship exists only between the Customer (the originator of the order) and the Company, with no third party being able to be designated as the beneficiary of the order. The Customer fully warrants the Company against any third party claim related to the Customer or its order in any way whatsoever, for any reason whatsoever, and undertakes to fully compensate the Company for all damages which the Company would be obliged to pay to a third party.
10. Limitation of liability
In the event that the liability of either Party is implicated in the implementation of the Agreement, except in the case of fraud or gross negligence, such liability shall be limited to direct material damage only, to the exclusion of any indirect damage and, in particular, any loss of turnover, profit, operating profit, renown or reputation, clientele, action by a third party, commercial or economic loss, additional operating or production costs, additional costs and other lost revenue. Each party makes every effort to obtain the waiver by its own insurer regarding responsibility of the other Party in the event of indirect and/or immaterial damage in the aforementioned cases.
Notwithstanding any other stipulation, the cumulative total financial liability of the Company shall not exceed, for the duration of the contractual relationship, one and a half (1.5) times the amount of the remuneration paid by the Customer to the Company for the execution of the Services.
The Customer will indemnify the Company and will hold it free from any third party appeal against it, regardless of the basis of said appeal, in connection with the intervention of the Company, provided that the sum charged to the Company following said appeal exceeds the liability ceiling set out above.
The Customer acknowledges that the clauses of this Article constitute an essential and determining condition of the contract, without which the latter would not have been concluded.
11. Tolerance – Partial invalidity – Titles
The non-application by the Company or the Customer of the rights specified in the General Conditions of Service shall not constitute a waiver of the subsequent application of these provisions. In the event that a title of either general conditions or special conditions does not correspond to the article it introduces, the title will not be taken into account. The invalidity of any one of the contractual provisions does not entail the nullity of the other contractual provisions.
12. Confidentiality
The Company undertakes to treat in a confidential manner all the commercial, financial, technical, sampling and analysis data to which it will have access during the execution of the Services and identified as confidential by the Customer. The Company will also keep confidential the report or reports resulting from the Services and will refrain from using it/them or communicating it/them to any third party for any reason whatsoever, except to prove the performance of the service and in particular to obtain payment, or at the request of a competent administrative authority, or to enable the Company to preserve its rights in court. The Customer undertakes to treat in a confidential manner all the technical, commercial, financial or other information that it would need to know about the Company as part of the execution of the service and in particular any methods of analysis, product composition, software algorithm or databases used by the Company.
13. Force Majeure
In addition to cases generally described as force majeure by the French courts and tribunals, the Parties understand by force majeure the occurrence of any event beyond the control of the Company, making it impossible to fulfil its obligations, and in particular legal or regulatory changes occurring after the issuance of the Offer or the Quote, and non-attainment, non-renewal or withdrawal of the administrative authorizations necessary for the execution of the Services. In such an eventuality, the Parties will meet in order to agree on the follow-up to be implemented, but the execution of the Services will be automatically suspended, such suspension being in no way a cause of liability on the part of one or other Party, nor grounds for delay or entitlement to the award of damages. If force majeure interrupts the Services for more than 15 consecutive or cumulative days, the Company reserves the right to terminate the execution of the Services..
14. Non-poaching
The Customer undertakes not to hire, directly or indirectly (for example, through a temporary employment agency or an umbrella company) the salaried employees of the Company at the time of the issue of the Offer or the Quote. In the event of such an occurrence, the Customer agrees to pay the Company financial compensation amounting to 24 times the gross monthly salary of the person hired. This commitment is valid for 3 years from the end of the Services ordered..
15. Claims – Governing Law – Courts – Evidence Agreement
For all main proceedings, as in summary proceedings, all claims between the parties will be submitted to the Paris Commercial Court notwithstanding the plurality of defendants or the activation of guarantees. Contractual relations under French law are considered as much in terms of their interpretation and validity as they are in terms of their execution. Any complaint by a customer who has not been subject to assessment by the court after a period of 12 months from the event giving rise to the complaint will no longer be subject to prosecution. The customer expressly waives its rights in such a case. The French version of these terms of service will prevail over all other versions in foreign languages. Any exchange between the parties, including by email or any other dematerialized form of exchange of information, will have probative force between the parties in the same way as a signed written document. However, only the Company’s agents or holders of power of attorney of the company can validly modify the contractual provisions agreed between the Parties.