General Terms and Conditions of Sales
1. AREA OF APPLICATION
- 1.1 All Orders accepted by Eurofins Experchem Laboratories or any of its subsidiaries or affiliates (collectively, “Experchem”) will be governed by these General Terms and Conditions of Sale (the “Terms and Conditions”), including orders placed by telephone which have not been confirmed in writing and orders made by delivery of samples. A contract with these Terms and Conditions comes into being when an order that has been placed with Experchem is accepted by Experchem. An order placed with Experchem is considered as accepted by Experchem when (a) Experchem proceeds to fulfill that order, without need for any written confirmation from Experchem or (b) Experchem accepts the order in writing.
- 1.2 These Terms and Conditions supersede and replace all prior verbal or written price quotations and agreements between the parties and, unless specifically indicated otherwise therein, take precedence over all conflicting or inconsistent provisions of subsequent written agreements between the parties. No officer (other than the Vice President/Business Unit Manager of Experchem), employee, agent or subcontractor of Experchem has the authority to alter or waive any of these Terms and Conditions or to make any representation which conflicts with or purports to override any of these Terms and Conditions; and no such alteration, waiver or representation shall be binding upon Experchem, unless it is in writing and signed by the Vice President/Business Unit Manager of
2. PLACEMENT OF ORDERS
- 2.1 A customer's order will be valid only if it is sent by mail or fax or other electronic message on letterhead of the customer or by using Experchem-approved sample dispatch sheets or electronic order forms and the commercial aspects of the order which are not specifically set out in these Terms and Conditions (including price, estimated turnaround times and delivery date) must be agreed at the time of the order. The customer must confirm in writing orders given by telephone immediately after they are made and will be deemed to have placed an order if the customer sends samples to Experchem quoting the customer reference. Experchem is not obligated to start any analytical work unless the order is clear and it has been provided all required
- 2.2 Unless specifically accepted in writing and signed by the Vice President/Business Unit Manager of Experchem, any terms proposed or submitted by a customer at any time (including, but not limited to, terms or provisions in the customer’s purchase order, instructions or other document) which differ from these Terms and Conditions are rejected as a material alteration of these Terms and Conditions and shall be of no force or effect. Furthermore, special terms or conditions of prior orders, including special pricing, will not automatically apply to subsequent orders. Each order accepted by Experchem will be treated as a separate contract between Experchem and the
- 2.3 A request for additional services on samples that have entered the laboratory will be treated as a new order and may postpone estimated delivery date
3. PRICE AND TERMS OF PAYMENT
- 3.1 If the acknowledgment of an order does not state otherwise, Experchem’s prices apply “ex works”, excluding packaging, freight and courier, which are charged separately. Any additional cost or disbursement (e.g. incurred by Experchem in connection with the order) must be paid by the customer.
- 3.2 Prices are exclusive of all applicable taxes and are based on rates in force at the day of the remittance of the offer to the customer. Applicable taxes are those in force at the date of invoicing.
- 3.3 Unless specifically agreed otherwise by Experchem in its acceptance of an order, payment of all invoices is due strictly within 30 days of the invoice Any dispute about invoices must be raised within 30 days of the invoice date. The challenge of an analytical result will not entitle a customer to defer payment. Any invoice which remains outstanding after due date, may be additionally charged with an administrative penalty of Seventy Five Dollars ($75) and may carry interest at the rate of one percent (1%) per month or the maximum interest rate permitted by applicable law, whichever is lower.
- 3.4 Experchem may automatically place a credit hold on the customer account with unpaid invoices which remains outstanding after the due date, and may be forwarded to third party collections for further action when internal collection efforts prove unsuccessful after sixty days from the invoice
- 3.5 All notices of invoice errors and disputes must be sent to our credit and collection within 5 days upon receipt of the invoice for resolution, and the due dates shall be adjusted accordingly. Notices received after 5 days will hold the due date of the original
- 3.6 Invoices can be paid by cheque, EFT, direct payments, or by credit
- 3.7 Notwithstanding the penalties and interest in 3.3 above, credit card payments shall be subject to the following:
- payments for invoices over 30 days from the invoice date shall include a 2% surcharge
- payments made on American Express credit cards shall include an additional 3% surcharge, regardless of the date of the invoice paid
4. DUTIES OF CUSTOMER IN DELIVERING SAMPLES OR MATERIALS
- 4.1 The samples or materials must be in a condition that makes the preparation of reports/analyses or the production of ordered products possible without difficulty. Experchem is entitled to conduct an initial examination of the samples or materials to check their condition before processing the samples, drawing up a report or using them in The customer shall bear the costs of this initial examination, if the samples or materials do not comply with the requirements described in this clause 4.1. If the result of the initial examination is that an analysis or production is impossible or is possible only under more difficult conditions than originally anticipated – for example, because the samples or materials have been interspersed with foreign materials or substances that were not reported by the customer or are degraded – Experchem shall be entitled to terminate or interrupt the order and the customer shall bear costs incurred by Experchem to that point.
- 4.2 The customer must ensure, and hereby warrants, that no sample poses any danger, including on its site, during transportation, in the laboratory or otherwise to Experchem’s premises, instruments, personnel or representatives. It is the customer’s responsibility to insure compliance with hazardous waste regulations, including regarding information, transportation and disposal and to inform Experchem personnel or representatives about sample health and safety concerns, including any known or suspected toxic or other contaminant that may be present in the sample and its likely level of contamination as well as the risks to Experchem premises, instruments, personnel and representatives related to the contamination. The customer shall be responsible for, and indemnifies Experchem against, all costs, damages, liabilities and injuries that may be caused to or incurred by Experchem or its personnel or representatives including on the sampling site, during the transportation or in the laboratory by the customer’s sample or by sampling site conditions. The customer shall bear all extraordinary costs for adequate disposal of hazardous waste resulting from the sample, whether or not described as hazardous waste. At Experchem’s request, the customer must provide Experchem with the exact composition of the
5. PROPERTY RIGHTS ON SAMPLE MATERIAL AND SAMPLE STORAGE
- 5.1 All samples become the property of Experchem to the extent necessary for the performance of the order. Unless the customer pays for storage, Experchem shall have no obligation or liability for samples sent to Experchem for storage, including samples requiring refrigeration. If the customer pays for storage, Experchem will take commercially reasonable steps to store the samples, according to professional
- 5.2 Experchem can dispose of or destroy samples immediately after the analysis has been performed, unless Experchem and the customer have agreed in writing on the terms of Experchem’s retention of the Experchem also can dispose of or destroy the samples after the agreed upon retention period, without further notice and at customer’s cost, should an extra cost for Experchem arise to comply with any regulation (for example, with respect to disposal of hazardous waste). If the customer requests the return of unneeded sample material, Experchem will return them to the customer, at the customer’s cost and risk.
6. DELIVERY DATES, TURNAROUND TIME
- 6.1 Delivery dates and turnaround times are estimates and do not constitute a commitment by Experchem. Nevertheless, Experchem shall make commercially reasonable efforts to meet its estimated
- 6.2 Results are generally sent by email, Canada Post mail, courier, or via other electronic means, to the attention of the persons indicated by the customer in the order, promptly after the analysis is
7. TRANSFER OF PROPERTY AND INTELLECTUAL PROPERTY RIGHTS
- 7.1 Title in any analysis results, products, equipment, software or similar supplied by Experchem to the customer will remain with Experchem until all invoices in respect thereof have been paid by the customer in full, and until such full payment, the customer shall have no property rights or other rights to use In addition, even if Experchem has accepted and begun to fulfill an order, Experchem has the right at any time stop processing that order and to stop doing any work for a customer if that customer is late in paying any amount due to Experchem, whether for that or any other order.
- 7.2 Even after payment in full by the customer, Experchem shall retain the right to store, use and publish all analysis results in an anonymous form which does not identify the
- 7.3 Customer hereby acknowledges and agrees that any and all inventions, discoveries, trade secrets, know-how, improvements, methods, systems, software programs, practices, procedures and processes, and proprietary materials including, but not limited to, structural and functional information and other data repository, formulations and techniques, whether or not patentable or copyrightable (“Intellectual Property”), that is owned or controlled by Experchem as of the date hereof, or that is developed, conceived or reduced to practice outside of the performance of services by Experchem, and all modifications or improvements thereto, shall vest in, be the property of, and shall be owned solely and exclusively by, Experchem (“Experchem Background IP”). Customer hereby acknowledges and agrees that any and all Intellectual Property that is developed, conceived or reduced to practice by representatives of Experchem in the performance of the services and that is (i) within the field of the Experchem Background IP, and (ii) does not rely on or incorporate customer materials or confidential information (“Experchem Developed IP”), is not part of the services and shall vest in and be the sole and exclusive property of, Experchem. Customer shall be allowed to use the Experchem Background IP and the Experchem Developed IP, at no cost to customer, to the extent such use is necessary for the exploitation of the results of the services.
8. LIMITED WARRANTIES AND RESPONSIBILITIES
- 8.1 Orders are handled in the conditions available to Experchem in accordance with the current state of technology and methods developed and generally applied by Experchem and the results may not always be 100% exact and/ or Analysis, interpretations, assessments, consulting work and conclusions are prepared with a commercially reasonable degree of care but Experchem cannot guarantee that these will always be correct or absolute. This limited warranty expires six months after the delivery date of the samples, if the acknowledgement of the order does not specifically state otherwise. In all cases, the customer must independently verify the validity of any results, interpretations, assessments and conclusions supplied by Experchem, if it wishes to rely on the same in respect of matters of importance and shall do so at its own risk.
- 8.2 Each analytical report relates exclusively to the sample analyzed by If Experchem has not expressly been mandated and paid for the definition of the sampling plan (including which samples of which raw materials and finished products and at which frequency should be analyzed) and the definition of the precise range of analysis to be performed or if the customer has not followed Experchem recommendations, Experchem shall not bear any responsibility if the sampling plan and/or the range of analysis to be performed prove to be insufficient or inappropriate.
- 8.3 The customer is responsible for the proper delivery of samples sent to Experchem for examination/analyses or materials sent for production. Unless otherwise specifically agreed in writing by Experchem, Experchem accepts no responsibility for any loss or damage, which may occur to any sample in transit or to any facility or site where logistics services are being The customer will at all times be liable for the security, packaging and insurance of the sample from its dispatch until it is delivered to the offices or the laboratories of Experchem. Experchem will use commercially reasonable care in handling and storing samples, but Experchem shall not be held responsible for any loss or destruction of samples even after their receipt at its laboratories.
- 8.4 The customer warrants and represents to Experchem that all samples sent to Experchem for analysis are safe and in a stable condition and undertakes to indemnify Experchem for any losses, injuries, claims and costs which Experchem, or its personnel, may suffer as a result of any sample not being in a safe or stable condition, notwithstanding that the customer may have given an indication on the sample or any order form of any perceived problem with the sample. The customer must always inform Experchem in writing prior to shipment and label the packaging, samples and/ or containers appropriately, if the samples are dangerous or otherwise of a hazardous
- 8.5 Unless explicitly agreed in writing by all parties, the contractual relationship shall be between the customer and There shall be no third party beneficiary or collateral warranty relating to any order and the customer shall indemnify and hold Experchem harmless from and against any and all third party claims in any way relating to the customer or order by the customer.
9. INDEMNIFICATION AND LIMITATION OF LIABILITY
- 9.1 Except to the extent that such limitations are not permitted or void under applicable law, Experchem (together with its workers, office clerks, employees, representatives, managers, officers, directors, agents and consultants, and all partners and affiliates) shall defend, indemnify and hold harmless the customer and its employees, officers, successors, agents, representatives, successors and assigns (“Indemnified Parties”), from and against any and all third party claims liabilities, costs, damages, suits, actions, debts, charges and expenses (including reasonable attorneys’ fees, court costs and any amounts paid in settlement) that the Indemnified Parties shall at any time may sustain, to the extent arising out of the gross negligence or willful misconduct of Experchem; provided, however, that Experchem shall not be liable for any damages, losses, costs or expenses to the extent attributable to the negligence or willful misconduct of Indemnified Parties.
- 9.2 The customer (together with its workers, office clerks, employees, representatives, managers, officers, directors, agents and consultants, and all partners and affiliates) shall defend, indemnify and hold harmless Experchem and its employees, officers, successors, agents, representatives, successors and assigns for any losses, injuries, claims and costs which Experchem shall at any time suffer as a result of arising from or in any way connected with its role under or services or products or software provided pursuant to these Terms and Conditions, except to the extent that Experchem is required to bear them according to these Terms and Conditions, and by placing an order, the customer agrees to provide that
- 9.3 In no event shall either party be responsible for any indirect, consequential, incidental, punitive or special damages (including without limitation damages for lost profits or revenue, loss of use, business interruption, loss of information, or for the procurement of substitute services) of the other party or of any third party, even if such party has been advised of the potential for such damages and whether such damages arise in contract, negligence, tort (including death or personal injury), under statute, in equity, at law or otherwise. In all cases, Experchem’s liability for any damages of the other party or of any third party shall be limited to the lessor of (i) ten times the amount of fees paid by customer to Experchem or (ii) fifteen thousand dollars ($15,000.00).
10. REMEDY FOR DEFICIENT SERVICES AND REPEATED ANALYSIS
- 10.1 In the event that any services are improperly or inadequately performed by Experchem, customer’s sole remedy, and Experchem’s sole obligation, with respect to such deficient services shall be for customer to either: (i) require Experchem to re-perform such improper or deficient services, subject to the provisions of Section 10.2 below, or (ii) request a refund of all amounts paid to Eurofins for such improperly or inadequately performed services.
- 10.2 Objections to test results can be made within thirty (30) days after the customer receives the results. However, unless it would appear that the results of the repeated analysis do not match those of the first one, the customer shall bear the costs of the repeat testing or review. Furthermore, a repeated analysis will be possible only if Experchem has a sufficient amount of the original sample on hand when it receives the customer’s objection. Otherwise the customer will be required to pay all costs, including sampling, transportation, analytical and disposal costs for the repeat
11. FORCE MAJEURE
- Experchem cannot be held liable for delays, errors, damages or other problems caused by events or circumstances which are unforeseen or beyond Experchem’s’ reasonable control, or which result from compliance with governmental requests, laws and regulations.
12. CONFIDENTIALITY & PROCESSING OF CUSTOMER DATA
- 12.1 Experchem shall be entitled to save and process personal or commercial data received from the customer in any way, no matter whether such data stem from the customer directly or from a third party and shall use commercially reasonable efforts to keep such data confidential, in compliance with applicable
- 12.2 Experchem shall use commercially reasonable efforts to keep all analysis results and service reports confidential, subject to Experchem’s rights set forth in clause 7.2 and the right to use them in order to demonstrate its entitlement to payment for services
- 12.3 Analysis results are prepared and supplied exclusively for the use of the customer and should not be divulged to a third party for any purposes without the prior written agreement of Experchem. In addition, the customer is required to maintain secrecy concerning all services provided by Experchem and their results as well as the composition of products and software delivered by Experchem. Analysis results are not to be publicly disclosed or exploited without the prior written consent of Even if such written consent is given by Experchem, the customer (a) remains responsible for any consequences due to the divulgence of such results to a third party and any reliance of such third party on such results and (b) hereby agrees to indemnify the E x pe r c h em Indemnified Parties against any liability which the E x per c he m Indemnified Parties may incur as a result of such divulgence or any such third party reliance.
13. DISCLAIMER AND MISCELLANEOUS
- 13.1 EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, EXPERCHEM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH ITS PERFORMANCE OF SERVICES AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXPERCHEM SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF SUITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- 13.2 These Terms and Conditions may be modified in writing from time to time by Experchem and orders will be governed by the most recent version of these Terms and Conditions that is in effect at the time Experchem accepts the
- 13.3 Should a court waive, limit or hold to be invalid, illegal or unenforceable any part of these Terms and Conditions, all other parts shall still apply to the greatest extent
- 13.4 Failure by either Experchem or the customer to exercise the rights under these Terms and Conditions shall not constitute a waiver or forfeiture of such
14. GOVERNING LAW/ JURISDICTION
- 14.1 The construction, validity and performance of these Terms and Conditions shall be governed by the laws and the commercial courts of Toronto, Ontario, in which the registered office of the Experchem company which accepted the order in question is located (including in cases involving multiple counsels for the defense or third-party respondents), which shall have exclusive