GENERAL CONDITIONS OF SERVICE
1. General Provisions – Scope
a) These General Conditions of Service (the “General Conditions”) apply to any order for the provision of services between RBnano (“R&Dnano”) and its customers (the “Client(s)”), and in particular to all consultancy, study, research and/or development services, hereinafter referred to as the “Service(s)”. These General Conditions define the reciprocal rights and obligations of R&Dnano and its Customers.
b) These General Conditions also apply more generally to commercial relations between R&Dnano and its Customer, despite any clause to the contrary in any general conditions of purchase of the Customer. The sending of an order by the Customer implies its unreserved acceptance of these General Conditions, which automatically prevail over the general conditions of the Customer, unless expressly waived in writing by R&Dnano.
2. Quotation – Orders
a) The Customer must have communicated to R&Dnano sufficiently in advance its specifications, the precise definition of its needs, its possible technical specifications or all information useful or necessary for the adequate development by R&Dnano of its estimate and the definition of the scope of the Services.
b) The prices offered by R&Dnano when drawing up its quotes are based on the specifications, information and information provided by the Customer. These prices and the execution times are likely to be revised by R&Dnano in the event that these specifications, information or Customer information prove to be inaccurate or incomplete.
c) The Customer’s order will only become effective when it has been confirmed in writing (letter or email) by R&Dnano.
3. Deadlines for the Execution of the Services
a) The performance times for the Services run from the day of receipt of the accepted estimate and acceptance by R&Dnano of the Customer’s order form. Unless otherwise provided, each Service ends with the delivery to the Customer of the final Service report drawn up by R&Dnano.
b) The final schedule of the Services will be determined by mutual agreement between the Parties. It may be subject to adaptations in the event of a request for modification of the scope of the Services by the Customer.
c) R&Dnano will make its best efforts to comply with the Service schedule defined by mutual agreement with the Client. R&Dnano’s liability may only be engaged in the event of significant delays in relation to the contractual schedule attributable to R&Dnano, it being understood that this liability may not be engaged in the event of a delay in the delivery of the Service due to the Customer (for example delay in the transmission of the documents necessary for the Service, unavailability of R&DNANO’s contacts at the Customer’s, etc.). Nor can R&Dnano be held liable in the event of a delay due to a case of force majeure, and more generally in all external circumstances which prevent, reduce or delay the performance of R&Dnano’s work or which cause excessive aggravation of its commitments. In these cases, R&Dnano’s delivery times will be extended by a period corresponding to the duration of these circumstances, without payment of damages.
d) The Customer undertakes to provide all the elements necessary for the completion of the order within a period of six (6) months. Beyond this period, the order will be considered canceled and a penalty of 30% of the amount of the order will be charged.
4. Modification of the Services
The scope of the Services, the specifications or an order may be modified throughout the Service, either at the Customer’s request or at the request of R&Dnano. To enter into force, these modifications must be the subject of a formal agreement in a written amendment signed by the authorized representatives of both parties. This amendment will determine the contours and extent of the new Services, as well as, where applicable, the new deadlines and the reassessment of the price.
5. Validity of the Offer
Unless otherwise provided, each offer or quote from R&Dnano remains valid for a period of two (2) months from its date of issue. After this period, R&Dnano reserves the right to modify the price and/or the conditions of intervention of its Services.
6. Reciprocal Commitments
a) R&Dnano undertakes to put all its experience and know-how to work to carry out any Service entrusted to it under the best conditions.
b) R&Dnano may subcontract all or part of the Services, after informing the Customer. R&Dnano will in any case remain responsible for its possible subcontractors.
c) The Client undertakes to provide R&Dnano with any information, report or document concerning him that must be brought to his attention so that he can carry out his Service. R&Dnano will, if necessary, ask the Customer to obtain all the necessary information and undertakes to regularly inform the latter of the progress and any difficulties of its Service.
7. Confidentiality
a) All information provided by one party to the other, orally or in writing, concerning its concepts, ideas, strategies, procedures, processes, specifications, documents, plans, calculations, drawings, and all objects, samples, specimens, including its know-how, intellectual property, and all legal, technical or commercial information, documents and databases (the “Information”) shall be treated as strictly confidential information by such other party and shall not be disclosed to any third party without the prior written consent of the disclosing party. Said Information will be used exclusively by the parties for the purposes of performing the Services concerned.
b) This reciprocal confidentiality agreement will remain in force for the duration of the execution of the order concerned and for 5 years following the end date of each Service.
8. Intellectual Property
a) Each party agrees to respect the Information and all intellectual property rights of the other party.
b) The Customer warrants to R&DNANO that its Information as well as the data, products, materials, processes communicated or made available to R&DNANO are indeed the property of the Customer, or are indeed validly licensed to the Customer, and that the use or modification of this information, data, products, materials, processes by R&Dnano in the context of the performance by R&Dnano of the Services is lawful and does not infringe the rights of third parties. The Client therefore guarantees R&DNANO against any third-party dispute to which these rights may be subject.
c) Unless otherwise provided, R&Dnano undertakes, after full payment of the price of the order by the Customer, to expressly transfer to the Customer and according to the terms of the order, the Results of the Service. It is then up to the Client to take, where applicable, all necessary measures for the exploitation of these transferred Results.
9. Price – Terms of Payment
a) Unless otherwise agreed by R&Dnano, payment of R&Dnano’s invoices will be made within thirty (30) days from the date of the invoice. The Customer will have to pay in addition the VAT and all taxes and customs duties, and other similar charges that may apply.
b) All Services will be the subject of one or more invoices recalling the estimate number, the breakdown of the price invoiced, any discounts and additional costs.
c) Unless otherwise stipulated, invoices are paid by check or bank transfer.
d) In the event of late payment or non-payment by the Customer, the sums due shall become immediately payable, from the day following the due date, until the day of payment of all the sums due and this without formal notice or other formality. The Customer will also bear, automatically, without prior notice, a late payment penalty equivalent to the legal interest rate for late payment + 3%, without prejudice to any other right of R&Dnano.
e) The Customer may not delay any of the payments due or carry out any compensation, even in the event of a dispute with R&Dnano.
10. Warranties – Limits of Liability
a) R&DNANO guarantees the performance of its Services in a professional manner and undertakes to make its best efforts to perform these Services in accordance with the contractual terms, including deadlines. R&Dnano, however, acting as mere adviser and/or consultant to the Client, it is therefore understood that due to the uncertainty linked to the very nature of the Services (study, consultancy, research and/or development services), R&Dnano does not guarantee that the objectives expected by the Customer will necessarily be successfully achieved or achieved within the contractual deadlines, despite R&Dnano’s efforts to achieve them.
b) Any recommendation, any technical or scientific advice given by R&Dnano within the framework or on the occasion of the performance of its Services, whether they are provided verbally or in writing or through tests, can only be the reflection of the own experience of its consultants. This advice is given in good faith, on a purely professional basis, but without any guarantee on the part of R&Dnano.
c) The use and/or implementation of R&Dnano’s advice or recommendations by the Client in its laboratories, workshops or facilities is undertaken at the sole risk of the Client. The responsibility of R&Dnano can in no case be engaged because of the decisions or orientations taken by the Customer on the basis of the Services carried out by R&Dnano or on the basis of the reports submitted by R&Dnano.
d) R&Dnano shall not incur any liability for any indirect or non-consecutive damage or prejudice suffered by the Customer such as, in particular, production or operating losses, loss of profit, loss of productivity, financial or commercial prejudice, or indirect costs arising – directly or indirectly – of the Services and/or their consequences. Notwithstanding any other applicable term or provision, R&Dnano’s liability for each Service shall in any case be expressly limited to the amount of each Service performed for the Client. The Customer waives any recourse against R&Dnano beyond this amount and undertakes to obtain such a waiver of recourse from its insurers.
e) In any case, in the event of damage suffered by the Customer, the latter must limit its potential or existing damage as much as possible.
11. Settlement of Disputes
a) It is agreed between R&Dnano and the Customer that, if a dispute arises between them as a result of a Service, an order, a contract or these General Terms and Conditions, the Parties will try to find quickly, and in good faith, an amicable solution and to conciliate before initiating any legal action. For this, the requesting party will explain by registered mail with acknowledgment of receipt to its co-contracting party its complaints and will propose the holding of a meeting. Failing to have found an amicable solution within the month following receipt of the registered letter containing the grievances, and provided that at least one amicable conciliation meeting has taken place between the parties, they will regain their freedom of action.
b) These General Conditions are exclusively subject to French law to the exclusion of any other legislation. Any dispute relating to the interpretation as to the execution of these General Conditions will be the exclusive jurisdiction of the Commercial Court of Strasbourg (France).
12. Termination
In the event of the Customer’s failure to fulfill its obligations resulting from a provision of a contract or an order, R&Dnano shall be authorized, by written notification addressed to the Customer, and without prejudice to any other recourse, to terminate all or part of contract or order concerned without any liability. In addition, R&Dnano shall be authorized to be reimbursed by the Customer for all costs and costs incurred by R&Dnano as a result, and to claim compensation for any loss or damage it may have suffered as a result of the delay in performance or the failure -execution by the Customer of the contract or order concerned. In addition, R&Dnano will be released from any commitment in force vis-à-vis the Customer.
13. Force Majeure
a) The party victim of a case of force majeure must immediately inform the other party in writing of the said case and provide it with all useful information and supporting documents in relation to this case of force majeure and its probable duration. Cases of force majeure are those covered by the French Civil Code and case law.
b) If a case of force majeure affects a party, the latter will not be held liable for non-performance of its contractual obligations. In addition, R&Dnano will have an additional reasonable time to perform its obligations.
c) Any case of force majeure which would prevent the use of the results of the Services or which would reduce the Customer’s needs does not authorize the Customer to suspend or delay the payments due or to terminate all or part of the order(s) s) concerned.
d) If a case of force majeure makes the execution of an order impossible for a period of more than two months, the order may be terminated automatically and without formality by one of the parties.
14. Non-Poaching
The Client undertakes, during the period of performance of the Services and for a period of 24 months following the end of these Services, not to, directly or indirectly, solicit or incite the employees, representatives, consultants or agents of R&Dnano to leave R&Dnano, regardless of the reasons, or to poach or hire employees, representatives, consultants or agents of R&Dnano.
15. Final Provisions
a) Unless expressly agreed in writing by R&Dnano, no change made by the Customer to these General Terms and Conditions may bind R&Dnano, whether indicated in the Customer’s order form or in any other document. Any contractual modification made at the request of the Customer and accepted by R&Dnano may lead to a modification of the prices and delivery times.
b) The non-exercise of all or part of any of its rights by a party does not in any way constitute an abandonment or renunciation of this right.
c) If it appears that certain provisions of these General Conditions are void, unenforceable or contrary to law in whole or in part, or cannot be applied for any reason whatsoever, the other provisions of these General Conditions will remain unchanged.
d) The particular provisions of a contract, an order, a written agreement signed between the Customer and R&Dnano and comprising specific clauses which could be in conflict with these General Conditions, shall prevail over the provisions of the General Conditions corresponding.
e) The Customer shall not assign any contract, any order or any right arising herefrom, or any claim owed by R&Dnano, to a third party without having obtained the prior written consent of R&Dnano.
f) The reports or results will be delivered to the Client in French or in English. In the event that the Customer asks R&Dnano to translate technical documents, reports, reports, etc., into other languages, the translation costs not being included in R&Dnano’s prices, they will be therefore invoiced to the Customer in addition.