GENERAL TERMS AND CONDITIONS OF SERVICES – TOXI PLAN®
These General Terms and Conditions of Services are intended to define the conditions under which Toxi Plan®, a simplified joint-stock company (SAS) with a share capital of €6,000, having its registered office at 7, rue Benjamin Franklin, Bâtiment Gauche B, ZI du TRIASIS, Launaguet (31140), France, and registered with the Toulouse Trade and Companies Register under identification number 852 717 875 (the “Service Provider”), provides its clients, upon request by any means, including services relating to chemical, (eco)toxicological and biological risk assessment in accordance with applicable standards and regulations.
Any order for services implies the Client’s full acceptance of these General Terms and Conditions of Services.
Toxi Plan® contact details: +33(0)681966890, contact@toxiplan.com
Preliminary Article – Definitions – Rules Of Interpretation
0.1. Definitions
Terms and expressions beginning with a capital letter when used in this Agreement shall have the following meanings:
« Client » | has the meaning given to it in the Quotation; |
« Agreement » | has the meaning given to it in Article 1.1; |
« Quotation » | has the meaning given to it in Article 1.1; |
« Document(s) » | has the meaning given to it in Article 9; |
« Supplier(s) » | has the meaning given to it in Article 4.1; |
« Confidential Information » | has the meaning given to it in Article 10; |
« Laboratory(ies) » | has the meaning given to it in Article 4.1; |
« Party(ies) » | means the Client and the Service Provider; |
« Service Provider » | has the meaning given to it in the preamble; |
« Service(s) » | has the meaning given to it in Article 1.1; |
« Product » | has the meaning given to it in Article 2; |
« Report » | has the meaning given to it in Article 4.1; |
« Third Party » | means any natural or legal person, or any other entity, which is not a Party to this Agreement. |
0.2. Rules of interpretation
Les règles exposées ci-après s’appliquent à l’interprétation du présent Contrat :
(a) the headings of the Articles and Schedules are included for convenience only and shall not affect the interpretation of any provision of this Agreement;
(b) the use of the terms “including”, “in particular”, or “notably” shall be deemed to mean that the items listed thereafter are not exhaustive or limiting;
(c) the term “or” shall not be exclusive;
(d) a term defined in the singular shall include the plural and vice versa. The same shall apply to the use of masculine or feminine gender;
(e) time periods expressed in days, months or years shall be calculated in accordance with Articles 640 to 642 of the French Code of Civil Procedure;
(f) any reference to a Party shall include its heirs, successors and assigns; and
(g) any reference to a document shall mean such document as it may be amended or replaced (other than in breach of the provisions of this Agreement).
Article 1 – Contractual Documents – Reprsentations and Warranties
1.1. Contractual documents
The contractual documents are:
- the quotation issued by the Service Provider (the “Quotation”) relating to the performance of various services for the benefit of the Client (the “Service(s)”);
- these General Terms and Conditions of Services.
All of the above-mentioned documents together constitute the agreement between the Parties (the “Agreement”).
In the event of any inconsistency between one or more provisions contained in any of the above-mentioned documents, the document of higher ranking shall prevail.
1.2. Representations and warranties
The Client represents and warrants as follows:
- that the execution of the Agreement does not constitute a breach of (i) its articles of association or any contractual obligation or any law or regulation applicable to it, (ii) any court decision or arbitral award (which has been served or notified to it prior to the date hereof), or (iii) any decision of an administrative, judicial or regulatory authority (which has been served or notified to it prior to the date hereof);
- that it is not in a state of insolvency nor subject to any preventive or insolvency proceedings under Book VI of the French Commercial Code, or any similar or equivalent measure or proceeding under the laws applicable to it;
- that the purpose, content and nature of the Services requested from the Service Provider are not likely to infringe public order or accepted standards of decency, to give rise to claims or objections from Third Parties, or to violate any applicable legal provisions, it being specified that the performance of the Services by the Service Provider shall not in any way guarantee the legality of such Services, for which the Client remains solely responsible; and
- that the execution of the Agreement constitutes a valid and binding obligation upon it.
Should any event occur that may directly or indirectly affect the above representations and warranties, the Client undertakes to inform the Service Provider without delay by any means, such notification to be confirmed by the Client by registered letter with acknowledgment of receipt sent to the Service Provider.
Article 2 – Orders
The Agreement shall be formed only upon signature of the Quotation by the Client, which shall include in particular:
- the definition and description of the Services;
- the raw material(s) or finished product(s) concerned by the Services (the “Product”);
- the contact details of the Service Provider’s technical representatives;
- the financial terms (price, currency, payment terms); and
- the billing address.
Once the Agreement has been concluded, the Client shall not be entitled to request any cancellation or modification of the Services or of the Agreement. Any contractual modification, including any change to the characteristics of the Product, must be expressly accepted by the Service Provider, who reserves the right to request an adjustment of the financial terms. Failing agreement between the Parties, this Agreement shall be terminated at the sole fault of the Client, and the full price of all Services shall be immediately due and payable by the Client upon first demand by the Service Provider.
The Client expressly accepts that the Service Provider may, at any time and without prior notice, replace any individual or technical provider involved in the performance of the Services, notwithstanding the designation of a specific individual in the Quotation.
Article 3 – Client communication
3.1. Provision of information
The Client undertakes to provide the Service Provider with all data and information necessary for the performance of the Services.
Such data and information shall be of sufficient quality and shall comply with the technical specifications required by the Service Provider in order to enable the latter to perform the Services in accordance with industry standards.
3.2. Availability
The Client undertakes, throughout the duration of the Agreement, to provide the Service Provider, upon simple request, with all data and information necessary for the proper performance of the Services.
The Client further undertakes to promptly notify the Service Provider of any event or material information that may have an impact on the Services.
The Service Provider shall under no circumstances be held liable for any consequences arising from the Client’s failure to notify such information.
Article 4 – Conditions for the performance of the services
4.1. Purpose
The assessment of the chemical, (eco)toxicological and/or biological risks of the Product shall be carried out by the Service Provider in accordance with the specifications of applicable standards and/or regulations, and strictly within the scope of the Quotation.
The Service Provider shall not be required to perform any Service not expressly specified in the Quotation, notwithstanding any provisions of the aforementioned standards.
The Services consist solely in the preparation by the Service Provider of a report on the risks associated with the Product (the “Report”), to the exclusion of any testing of the Product.
The preparation of the Report is subject to the prior receipt of the technical documentation relating to the materials/raw materials of the Product, the Product packaging and the Product itself, the physico-chemical characterization of the Product and/or the performance of tests on the Product.
The technical documentation relating to the materials/raw materials and packaging of the Product shall be provided to the Client in advance by its suppliers (the “Suppliers”), and the Client shall then transmit such documentation to the Service Provider.
The technical documentation relating to the Product shall be prepared in advance by the Client and subsequently transmitted to the Service Provider by the Client.
The physico-chemical characterization of the Product shall be prepared in advance by the Client on the basis of data provided by its Suppliers or carried out by duly accredited laboratories (the “Laboratories”), and such characterization shall not be performed by the Service Provider.
Any testing of the Product shall be carried out in advance by duly accredited Laboratories, and such testing shall not be performed by the Service Provider.
The Service Provider shall not be held liable for any inaccuracy or error on the part of the Client in expressing its needs. In the event that the Client wishes to modify the Product or substitute it with any other product after the execution of the Services as defined in the Quotation, the Client shall obtain the prior agreement of the Service Provider in accordance with Article 2, paragraph 2, which may be subject to an adjustment of the applicable fees.
4.2. Relationships with suppliers and laboratories
The Service Provider is a third party to the relationship between the Client and its Suppliers, and between the Client and the Laboratories, even where the Service Provider may have suggested certain Suppliers or Laboratories.
The Client, its Suppliers and the Laboratories shall independently determine the terms of their relationship, including legal and financial terms, without involving the Service Provider in such relationship.
The Client shall be solely responsible for providing the information required by its Suppliers and the Laboratories. Where expressly provided in the Quotation, the Service Provider may communicate certain information requested by the Laboratories for the preparation of the Report. Such information shall be strictly limited to technical data necessary for the preparation of the Report. Any information communicated by the Service Provider to the Laboratories shall be provided for indicative purposes only and shall not give rise to any contractual liability on the part of the Service Provider. Accordingly, the Client and/or the Laboratories shall be responsible for verifying any information communicated by the Service Provider to the Laboratories.
The Service Provider shall prepare the Report solely on the basis of the data provided by the Client’s Suppliers and the analyses and tests performed by the Laboratories, without having access to a sample of the Product. The Service Provider shall not be required to perform any counter-analysis, even if it considers such analyses to be insufficient.
The Service Provider shall not be held liable for any deficiencies or even serious errors on the part of the Laboratories.
4.3. Preparation of the report
The Report shall be prepared within the timeframes and dates indicated in the Quotation. Such timeframes and dates are indicative only and shall not be binding. The Service Provider shall under no circumstances be held liable for any delay or suspension in the performance of the Services attributable, in whole or in part, to the Client, or in the event of force majeure.
Once the Report has been prepared, the Service Provider shall deliver it to the Client by email in PDF format or via a secure link providing dedicated access to the Client. From the date of delivery of the Report, the Client shall have a period of five (5) calendar days to submit, by email, any comments or requests for clarification regarding the Report. Failing compliance with the above procedure, the Client shall be deemed to have accepted that the Report fully meets its expectations.
The Service Provider shall be free not to take into account any comments from the Client.
In the event that the conclusions of the Report require the Client to modify the characteristics of the Product, the Service Provider shall not be required to amend the Report or to perform any additional Services not expressly agreed and invoiced.
The Service Provider shall not be required to provide recommendations to the Client for the purpose of enabling the development of a Product compliant with applicable standards. The Report is limited to factual findings only.
4.4. Scope of the report
The Report is prepared solely on the basis of the information provided by the Client and the Laboratories.
The conclusions of the Report, even if favorable, shall not guarantee the absence of toxic elements in the Product placed on the market. Changes in Suppliers, batches of raw materials/materials, packaging, manufacturing processes and methods, and any failure to comply with good manufacturing practices may have a direct impact on the toxicity of the Product. Accordingly, the Client shall not be entitled to hold the Service Provider liable for any actual toxicity of the Product once placed on the market, and the Service Provider shall not assume any liability in this respect.
Article 5 – Place of performance of the services
The Services shall be performed, unless otherwise specified in the Quotation, at any location chosen by the Service Provider.
Any travel required for the performance of the Services, including travel to the Client’s premises, shall be invoiced by the Service Provider, unless expressly provided otherwise in the Quotation, and the Client shall reimburse all related expenses.
The Client undertakes to be present, or to be represented by a competent and duly authorized person, at any meeting scheduled with the Service Provider or any Third Party designated by the latter. In the event of delay or cancellation of a scheduled meeting, the Service Provider shall be entitled to claim financial compensation and shall not be obliged to accept any rescheduling of such meeting, which shall then be deemed to have been duly performed.
Article 6 – Pricing
The Services shall be provided at the rates and within the hourly limit specified in the Quotation.
The number of hours indicated in the Quotation for the performance of the Services is non-binding and provided for indicative purposes only. The Service Provider may therefore exceed such hourly limit.
In the event that the hourly limit is exceeded, the Client shall be invoiced on the basis of the hourly rate specified in the Quotation.
All prices are exclusive of taxes.
Any travel by the Service Provider required for the performance of the Agreement shall be subject to additional invoicing and reimbursement by the Client of the related expenses.
Article 7 – Payment terms
7.1. Payments terms
The price shall be payable in full, by bank transfer, unless otherwise specified in the Quotation, on the date of signature of the Quotation.
No discount shall be granted by the Service Provider for early payment prior to the date indicated on the invoice or within a period shorter than that specified in the Quotation.
7.2. Payment default
Without prejudice to any damages, any failure by the Client to pay any amount when due shall automatically result in:
- the application of late payment interest at a rate of one point five percent (1.5%) per calendar day of delay, calculated on the amount excluding taxes concerned by the payment default, without prior notice and as from the first day of delay, to which any additional banking and administrative costs shall be added;
- the immediate payment of a fixed indemnity of forty (40) euros for recovery costs, in accordance with Article D. 441-5 of the French Commercial Code. Where the recovery costs incurred exceed the amount of this fixed indemnity, the Service Provider reserves the right to claim additional compensation upon presentation of supporting documents;
- the immediate payment of all amounts due by the Client to the Service Provider, without prejudice to any other action the Service Provider may be entitled to take against the Client in this respect.
In the event of non-compliance with the above payment terms, the Service Provider further reserves the right to suspend or cancel the provision of the Services ordered by the Client, and/or to reduce or cancel any discounts previously granted to the Client.
7.3. No set-off
Unless expressly agreed in writing in advance by the Service Provider, and provided that the mutual claims and debts are certain, liquidated and due, no set-off may be validly effected by the Client between any penalties relating to delay in the performance of the Services or non-compliance with the order, on the one hand, and the amounts owed by the Client to the Service Provider in respect of such Services, on the other hand.c
Article 8 – Liability
8.1. Scope of the services
The role of the Service Provider is strictly limited to the performance of the Services.
The working methods of the Service Provider are freely determined by the latter in accordance with applicable standards and/or regulations and shall not be subject to any challenge, on any grounds whatsoever, by the Client or any Third Party.
The Service Provider does not guarantee the accuracy of the Report, which is primarily based on the data provided by the Client, including data originating from Suppliers and Laboratories.
Accordingly, the Client shall bear full responsibility for any direct or indirect consequences arising from the use of the Report and shall not be entitled to seek the liability of the Service Provider on any grounds whatsoever.
The Client shall ensure that its use of the Services complies with all applicable legal and regulatory requirements. The Service Provider provides no warranty to the Client regarding the compliance of the use made, or intended to be made, of the Services with any national or international legal or regulatory provisions.
8.2. Information and data provided
The Client undertakes that the information and data provided shall not infringe public order or accepted standards of decency, give rise to claims or objections from Third Parties, or violate any applicable legal provisions.
Accordingly, it is expressly agreed that, in the event that the Service Provider is held liable, on any grounds whatsoever and in any jurisdiction, by a Third Party, notably on the basis of any element provided by the Client, including data from Suppliers, analyses and tests carried out by Laboratories, the Client undertakes to fully indemnify and hold harmless the Service Provider against all direct and/or indirect economic and financial consequences (including legal and defense costs) arising from such claims.
The Service Provider shall under no circumstances be held liable for any corruption, inaccuracy, or partial or total falsity of the information provided by the Client in connection with the performance of the Services.
The Client shall be responsible for ensuring that the information and data are properly transmitted to the Service Provider and shall not, on any grounds whatsoever, hold the Service Provider liable for any non-receipt or loss of such data. The Client shall ensure that it retains a backup of all transmitted data.
8.3. General provisions
The Service Provider shall not be held liable for any delay or failure to perform this Agreement where such delay or failure is due to a force majeure event, as defined by the case law of French courts.
The Service Provider shall under no circumstances be liable for any indirect or unforeseeable loss or damage suffered by the Client or any Third Party, including, but not limited to, any loss of profit, commercial loss, loss of turnover or revenue, loss of customers, or loss of opportunity, regardless of the cause or legal basis.
In any event, where the liability of the Service Provider is established, such liability shall be limited to the amount excluding taxes actually paid by the Client for the Services giving rise to the dispute.
8.4. Insurance
The Client warrants that it has taken out the necessary insurance coverage for its civil liability in respect of bodily injury, material damage and consequential loss, whether direct or indirect, for which it may be held liable.
For the purposes of this clause, “damage” shall mean any damage of any nature caused directly by the Client or its personnel to the Service Provider, its personnel, or any Third Party. The Client undertakes to maintain such insurance coverage throughout the duration of the Agreement and to provide evidence thereof upon request by the Service Provider.
Article 9 – Intellectual property
Unless expressly agreed in writing in advance by the Service Provider, the Service Provider shall retain ownership of all intellectual and industrial property rights relating to all documents, including, without limitation, studies, drawings, models or presentation materials (the “Document(s)”), communicated by any means and/or created in whole or in part by the Service Provider, including where such creation is carried out at the request of and in accordance with the guidelines and instructions of the Client.
Accordingly, the Client shall refrain from any reproduction or use of such Documents without the prior written consent of the Service Provider, which may be subject to financial consideration.
Article 10 – Confidentiality
For the purposes of this Agreement, the term “Confidential Information” shall mean any information or document disclosed by either Party to the other Party, whether in writing or orally, including, without limitation, any written or printed documents, design models, trade secrets, know-how, financial or commercial documents, calculation models and results, or more generally any means of disclosure of Confidential Information that may be used by either Party vis-à-vis the other Party.
The term “Confidential Information” shall not include information which:
(i) is or becomes publicly available or known, other than as a result of a disclosure made in breach of these provisions;
(ii) has been or is disclosed to one of the Parties by a Third Party who is not, directly or indirectly, affiliated with the other Party or any of its representatives;
(iii) has been independently developed by one of the Parties without use of the Confidential Information; or
(iv) is disclosed or made public by mutual agreement between the Parties.
For the duration of this Agreement and for a period of ten (10) years following its expiration or termination, the Parties undertake not to disclose, in any manner whatsoever, including verbally, any Confidential Information without the prior written consent of the other Party. The Parties further undertake to:
- protect and keep strictly confidential the Confidential Information received from the other Party, and to apply at least the same degree of care and protection as that applied to their own confidential information of similar importance;
- disclose such Confidential Information internally only to their employees or subcontractors strictly on a need-to-know basis and solely for the proper performance of this Agreement;
- not copy, reproduce or duplicate, in whole or in part, any Confidential Information without the prior specific authorization of the other Party. All Confidential Information and any copies thereof disclosed by either Party to the other Party shall be returned immediately upon request.
Where a Party is required, by law or regulation, in particular pursuant to a request from a judicial or administrative authority, or under any applicable regulatory requirement, to disclose Confidential Information to a Third Party or to make it public, such Party shall be authorized to do so.
Article 11 – Communication
The Client acknowledges that the Service Provider shall have the right, without prejudice to the provisions of Article 12, to communicate, for the duration of the Agreement and for a period of two (2) years following its expiration or termination, on any medium and by any means (including by using the Client’s name, logo or trademark), solely regarding the existence of their business relationship, without the Client being entitled to claim any compensation or indemnity in respect of such communication.
Article 12 – Termination
In the event of a breach by either Party of its contractual obligations, the Agreement may be terminated as of right by the other Party fifteen (15) days after the sending of a formal notice by registered letter with acknowledgment of receipt that has remained without effect. The formal notice shall specify the breach or breaches identified.
Article 13 – Miscellaneous
13.1. Severability
If any provision of this Agreement is held to be invalid or unenforceable for any reason by a competent court, the validity of the remaining provisions of the Agreement shall not be affected or impaired in any way, and the Parties shall negotiate in good faith to replace the invalid or unenforceable provision with a valid provision having equivalent economic effect.
13.2. Independence of the parties
The Parties expressly acknowledge that they are and shall remain, throughout the duration of the Agreement, independent parties.
The Parties further expressly declare that they do not intend, under this Agreement, to create any legal entity, partnership, joint venture, or de facto partnership between them.
13.3. Subcontracting
The Parties agree that the Service Provider may, in the performance of the Agreement, engage any subcontractor of its choice without prior notice to the Client.
13.4. Non-exclusivity
The Agreement is non-exclusive and shall not prevent the Service Provider from entering into any other contract or agreement with any natural or legal person, including any direct or indirect competitor of the Client, for services similar to those provided under this Agreement, under terms and conditions freely determined by the Service Provider.
13.5. Right of withdrawal
It is recalled that, pursuant to Article L. 221-3 of the French Consumer Code, “the provisions of Sections 2, 3 and 6 of this Chapter, applicable to relationships between consumers and professionals, are extended to contracts concluded off-premises between two professionals, provided that the subject matter of such contracts does not fall within the main field of activity of the solicited professional and that such professional employs five (5) employees or fewer.”
Accordingly, where the Client meets the above legal criteria, it shall benefit from a right of withdrawal of fourteen (14) days from the date of conclusion of the Agreement, in accordance with Article L. 221-18 of the aforementioned Code.
However, any Client benefiting from such right expressly requests the immediate performance of the Services and expressly waives its right of withdrawal in accordance with Article L. 221-28, 1° of the French Consumer Code. Consequently, the Client shall not be entitled to withdraw from its commitment.
Article 14 – Data protection
In accordance with the provisions of Law No. 78-17 of 6 January 1978 and Regulation (EU) 2016/679 of 27 April 2016 (General Data Protection Regulation – GDPR), the Client has the right to access personal data concerning it, as well as the right to modify, rectify and delete such data. To exercise these rights, the Client may contact the Service Provider at the following address: Toxi Plan – 7, rue Benjamin Franklin, Bâtiment Gauche B, ZI du TRIASIS, Launaguet (31140), France, or by email at: contact@toxiplan.com. The Client’s request shall be processed within thirty (30) days.
Personal data relating to the Client collected by the Service Provider during the performance of the Services shall be used solely for the purposes of performing the Services and may be communicated to any Third Party as necessary for the performance of the Agreement, including any subcontractors.
The Client’s data may also be used to enhance and personalize communications with the Client, in particular through newsletters to which the Client may have subscribed. The Client may request at any time to unsubscribe from such communications.
The Service Provider shall store the Client’s personal data on its own servers and undertakes to keep such data strictly confidential. Such data shall be retained for a period of two (2) years following the expiration of the Agreement for any reason whatsoever. Thereafter, the data shall be retained solely for archival purposes, in order to establish proof of a right or contract, in accordance with the provisions of the French Commercial Code relating to the retention period of books and records created in the course of commercial activities.
Article 15 – Applicable law – Language
By express agreement between the Parties, this Agreement shall be governed by French law.
These terms are drafted in the French language. In the event that they are translated into one or more languages, only the French version shall prevail in the event of a dispute.
Article 16 – Acceptance by the client
These General Terms and Conditions of Services, together with the Quotation, are expressly agreed and accepted by the Client, who acknowledges having full knowledge thereof and, as a result, waives the right to rely on any contradictory document, in particular its own general terms and conditions of purchase, which shall be unenforceable against the Service Provider, even if the latter had prior knowledge of them.
Article 17 – Disputes
Any dispute arising from the interpretation, performance, non-performance, or consequences of this Agreement shall be submitted to the exclusive jurisdiction of the Commercial Court of Toulouse.