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GENERAL TERMS AND CONDITIONS OF SALE

GOVERNING THE SALES OF CHEMATECH PRODUCTS AND SERVICES

CheMatech headquarters: 2 rue Pauline Kergomard – 21000 DIJON (France)
E-mail: fboschetti@chematech-mdt.com

ARTICLE 1 – Scope

These General Terms and Conditions of Sale (the “Terms”) constitute the basis of the commercial relationship between the Supplier and its customers (the “Customers”), in accordance with French law.

Unless otherwise stipulated in the contract or order form signed by both Parties, these Terms apply in their entirety to all contractual relationships between the Supplier and its Customers, with respect to all sales of products and all services offered by the Supplier, including bioconjugation and related services whereby the Customer provides its own molecule to be conjugated with a Supplier molecule, and the manufacture and sale of standard chelating agents, molecules and other products from the Supplier’s catalogue.

All orders for products and/or services imply the Customer’s acceptance, without restriction or reservation, of and full and complete compliance with these Terms, which shall prevail over any other Customer document, and in particular over any general terms and conditions of purchase, which shall be unenforceable against the Supplier even if it has been made aware of them, unless otherwise expressly agreed in writing by the Supplier.

These Terms are accessible at all times on the home page of the Supplier’s website. The Customer may therefore freely consult the Terms in order to fully consent thereto at the time of order. In accordance with current regulations, these Terms are systematically communicated to any Customer who so requests, and for online orders, the Customer must accept them in order to finalize its order.

The Supplier reserves the right to derogate from certain clauses of these Terms, depending on the negotiations conducted with the Customer, by drawing up special conditions which will then appear in the contract, quotation or order. In the event of contradiction between these Terms and the special terms and conditions set out in the contract, quotation or order signed by both Parties, such special terms and conditions shall prevail over these Terms.

The Supplier expressly reserves the right to modify these Terms at any time and for any reason, provided that any modification shall not apply to any order placed under a previous version of the Terms.

All information mentioned in the Supplier’s catalogues, brochures and online materials are for informational purposes only and in no way form a part of any agreement between the Parties. The Supplier reserves the right to modify such information at any time.

ARTICLE 2 – Orders

Sales of products and/or services are only valid after the Supplier’s quotation has been validated by the Customer’s signature and after the Supplier has expressly accepted the Customer’s order in writing, except with respect to online orders which shall be valid upon confirmation of the order by the Customer. The Supplier nevertheless reserves the right for online orders to inform the Customer within five business days of the receipt of such order of any expected delays in the delivery times for such order depending on the availability of products.

The Supplier reserves the right to refuse orders if it deems that the Customer’s creditworthiness suggests a risk of partial or total non-payment and/or when the order is issued by a Customer with which it has already had one or more payment incidents.

Any order accepted by the Parties is firm and final and may not be modified or cancelled without the express written consent of the other Party, in which case additional charges and revised timelines may apply.

ARTICLE 3 – Prices

Products and services are supplied at the price set forth in the Supplier’s quotation for custom-made products or services or, for online orders, in accordance with the price list in force on the Supplier website on the day the order is placed.

All prices are quoted and payable in euros (unless otherwise specified in the Supplier’s quotation or website) and are net and exclusive of tax, plus VAT (where applicable) at the current rate. Such prices are listed DAP for online orders and ExWorks for all other orders and exclude transportation, packaging, insurance, taxes, duties and levies or other costs due pursuant to applicable regulations, which shall be the Customer’s sole responsibility. The Supplier may use its own shipper for transportation to the Customer at the Customer’s expense, but the Customer may provide its own account number with such shipper if applicable.

ARTICLE 4 – Payment terms

4-1 Payment deadlines

For online orders paid by credit card, payment in full is due at the time the order is placed. For online orders paid by bank transfer or cheque, payment in full is due within thirty (30) calendar days of the Customer’s receipt of the invoice.

For orders placed by email or by any means other than the Supplier’s online ordering system, payment in full is due within thirty (30) calendar days of the Customer’s receipt of the invoice.

All Supplier invoices are payable in full by wire transfer within thirty (30) calendar days of the invoice date. No discount shall be granted in the event of early payment. The Supplier’s financial department reserves the right to require different terms of payment in the event of lack of timely payment by the Customer of a previous invoice.

4-2 Late payment penalties

In the event of late payment of sums due by the Customer, the Customer shall pay to the Supplier default interest calculated at the annual rate of 12% of the amount (including VAT) of the price shown on any overdue invoice, as well as a fixed indemnity for collection costs of 300 euros. Such obligations shall apply automatically, without any prior written notice.

Furthermore, in the event of any delay in payment, without prejudice to any other action that the Supplier may be entitled to take against the Customer, all other invoices issued by the Supplier to the Customer shall immediately become due and payable, and all discounts or special payment conditions offered to the Customer will automatically be cancelled with immediate effect. The Supplier also reserves the right to cancel the delivery of any products and/or the provision of any services ordered by the Customer failing full payment by the Customer within 8 days after receiving formal notice to pay by registered letter return receipt requested. Such termination shall be without prejudice to the Supplier’s right to claim damages against the Customer.

4-3 No compensation

Unless expressly agreed otherwise in advance and in writing by the Supplier, no compensation may be validly effected by the Customer between any amounts that may be due by the Supplier to the Customer with respect to any alleged non-compliance with the order, on the one hand, and the sums owed by the Customer to the Supplier for the purchase of said products and/or services, on the other hand.

ARTICLE 5 – Supply of Products and/or Services

5-1 Delivery of products and/or performance of services by the Supplier

Upon the Customer’s validation of the quotation for custom-made products and/or services or upon the Supplier’s acceptance of the online order for standard products and/or services AND after receipt by the Supplier of the initial deposit, the Supplier will proceed with the performance of the Customer order in accordance with the terms of the order.

Delivery will be deemed to take place at the Supplier premises by direct handover of the products or services to the shipping company chosen by the Customer.

Standard products will be promptly dispatched by the Supplier (by delivery to the carrier), subject to available inventories. All other products will be sent according to the delivery time indicated in the special conditions (cf. order form, quotation or order confirmation).

All such delivery times are provided for informational purposes only, and the Customer may not claim damages or compensation of any sort (including cancellation of the order) if such times are not met. In addition, the Supplier shall not be liable in the event of delay or suspension of the delivery of products and/or the provision of services attributable to the Customer, or in the event of force majeure.

5-2 Customer cooperation

The Parties agree that the Customer’s cooperation is essential in order for the Supplier to determine the product(s) corresponding to the Customer’s needs and to provide the services requested by the Customer. The Customer shall cooperate in good faith and shall be responsible for providing the Supplier with all necessary technical documents and information for the purpose of preparing the quotation and/or for delivery of the products and/or performance of the services.

If the Supplier products or services are to be based on a product supplied by the Customer, it shall promptly send the Supplier a product having the quality and technical specifications as agreed with the Supplier. The Customer shall be responsible for compliance with all applicable laws and regulations with respect to its own products and for preparing all legal documentation with respect thereto, in particular concerning storage and use constraints, and shall bring this information to the Supplier’s attention.

The Customer shall be personally responsible for obtaining all legal and administrative authorizations required with respect to its own materials for the performance of services by the Supplier and its subcontractors.

5-3 Customer materials

The Customer expressly represents and warrants to the Supplier that:

  • it owns or validly controls the Customer molecules and other materials and has full authority to supply them to the Supplier;
  • such molecules and materials do not infringe any third-party rights, including intellectual property rights of any kind;
  • all hazardous properties have been fully disclosed to the Supplier;
  • the Customer fully complies with all applicable chemical, biological, and export regulations.

The Customer shall indemnify, defend, and hold harmless the Supplier, its affiliates, officers, employees, and subcontractors against any claim, liability, damage, loss, penalty, regulatory action, or expense (including reasonable attorneys’ fees), whether arising during the Supplier’s performance of the services or after its delivery of the conjugated product, arising out of or relating to:

  • the Customer molecules and materials and their inherent toxicity, instability, or dangerousness;
  • any breach of the above representations, including alleged infringement of any third-party rights or intellectual property rights;
  • regulatory violations attributable to the Customer’s molecules.

5-4 Transfer of title & risk; transport

Regardless of the delivery date of any products, the Supplier shall retain full right and title to all products sold until it has actually received full payment of the sales price along with interest and costs.

In the event of non-payment, and without prejudice to any other rights or actions available to it, the Supplier may reclaim possession of the unpaid products, and the Customer shall be obliged to return them. Any products in stock at the Customer’s premises shall be deemed to be such unpaid products. Similarly, if the Customer is the subject of receivership, bankruptcy or liquidation proceedings, the Supplier may reclaim products that have not been paid for in full according to the terms of articles L.624-9 et seq. of the French Commercial Code (subject to any contrary applicable foreign laws).

Under no circumstances may the Customer pledge or grant security or collateral interests over unpaid products. In the event the Supplier exercises its right to retake possession of products, the Supplier shall have the right to retain any already paid portion of the purchase price as compensation for the Customer’s breach.

In the event of resale of the products by the Customer prior to their payment in full, the Customer shall clearly inform its purchaser in writing that such products are subject to a title retention right in favor of the Supplier and shall inform the Supplier of such sale so that the Supplier can preserve its own rights and, if necessary, exercise a claim on the resale price against the Customer’s purchaser.

In the event the Supplier exercises its rights pursuant to this retention of title clause, the Customer shall be liable to the Supplier for any devaluation of the products or services following the delivery date.

Notwithstanding the retention of title provisions above, all risks of loss and deterioration to the products shall transfer to the Customer upon the handing over of the products by the Supplier to the carrier or shipper selected by the Customer. All transportation, customs and handling operations shall be at the sole expense and risk of the Customer.

Thereupon, the products are placed in the Customer’s care, who shall bear all risks of loss or damage to the products for whatever reason, even in case of force majeure, act of God or act of a third party. The Customer shall bear the responsibility of insuring the products and services, at its sole expense, and shall consequently have no recourse or action against the Supplier on such grounds.

5-5 Product verification

Upon receipt at its site, the Customer shall be responsible, at its own expense, for verifying the conformity of the deliveries with the order terms and checking the products and/or services for visible defects. The Customer shall have a period of 10 days from the date of delivery of the products and/or services to express such reservations in writing to the Supplier, together with all supporting documents.

In the absence of express written claims by the Customer within such period, the products and/or services delivered by the Supplier shall be deemed to be accepted in quantity and quality by the Customer. Thereafter, the Customer shall have no right to make any claim with respect to such delivery, except as otherwise provided by applicable law.

In the event of a valid claim in accordance with the above, and except in the event of an applicable warranty exclusion mentioned in article 6, the allegedly defective products and/or services may only be returned to the Supplier following its prior written consent. Nonetheless, the Supplier’s acceptance of a product return shall not under any circumstances be deemed to be an acknowledgement of the alleged defect or other non-compliance. In the event of return, the products and/or services must be in perfect, unaltered condition, subject only to the alleged defect claimed by the Customer.

If the defect is confirmed by the Supplier, it will to the extent possible, promptly replace the defective product or correct the defective service provided to the Customer, at the Supplier’s sole discretion and at its own expense. Return and re-shipping costs shall be borne by the Supplier if the defect is verified and acknowledged by it.

The replacement of products or services shall in no case extend the duration of the warranty.

If the replacement or correction of the defect is not possible, the Supplier’s liability shall be limited to the refund of the price paid for the affected products and/or services.

5-6 Use of Supplier products

Concerning the products sold by the Supplier, it is expressly agreed that such products are chemical compounds and that instructions concerning the use, conservation, storage and transport of these products appear on the Supplier website, quotation, order form and/or on the product containers and safety data sheet sent to the Customer. The Customer acknowledges that it will be responsible for complying with such instructions without reservation for its own safety and that of its personnel, clients, subcontractors, etc.

The Customer shall be solely responsible for (a) obtaining all regulatory approvals necessary for the products and/or services supplied by the supplier, (b) obtaining any required import/export licenses and (c) complying with any applicable French, EU, U.S., or other applicable laws, including all export control laws.

Furthermore, the Supplier excludes all liability for any modification, formulation, combination, reprocessing and/or transformation by the Customer or any third party of the products and services supplied by the Supplier. Finally, the Supplier excludes all liability with respect to any regulatory submissions or clinical applications made by the Customer on the basis of Supplier products and/or services and makes no representation that its products and/or services comply with regulatory requirements unless expressly agreed in writing.

ARTICLE 6 – Product liability – Warranty

The Supplier takes the utmost care to provide only quality products and/or services that comply with regulations and standards of use. The Supplier warrants that its catalogue products conform to their certificate of analysis at the time of delivery. With respect to the provision of services, the Supplier warrants that its services will be performed in accordance with agreed specifications.

Products are warranted only until the expiration date stated in the certificate of analysis and, with respect to conjugated molecules, only if stability testing was expressly included in the specifications. If stability testing was not ordered, the Supplier gives no warranty beyond conformity at delivery.

The Supplier declares that it has taken out liability insurance with a reputable and solvent insurance company and that it shall keep such insurance policy active.

The Supplier provides no warranty and excludes any liability to the extent any defect to the products or services results from faulty action, negligence or deterioration by the Customer or any third party, transformation of the product, abnormal or inappropriate use, conservation, storage or transportation of the products or services as compared to the written specifications provided by the Supplier, or more generally for any event not directly attributable to the Supplier, including force majeure.

In no event shall the Supplier’s liability to the Customer exceed the purchase price of the products and/or services for which the Supplier is held liable. Furthermore, the Supplier shall not be liable to the Customer for any special, liquidated, punitive or indirect damages, for whatever reason, including for immaterial damage, commercial loss, loss of production, orders, revenues or profits.

Finally, it is expressly agreed that GMP manufacturing only applies if expressly agreed upon in the order specifications. Supplier products and/or services supplied under non-GMP conditions may only be used within the authorized framework of research use and pre-clinical trials, and consequently, any experimentation on human beings or for diagnostic, clinical, or commercial manufacturing purposes is formally prohibited.

ARTICLE 7 – Intellectual property rights and know-how concerning documents and products

The Supplier shall at all times remain the exclusive owner of all intellectual property rights on its studies, designs, formulas, methods, processes, techniques, protocols and any other know-how used, carried out or developed (even at the Customer’s request) with a view to supplying products and/or services to the Customer (together, the “Know-How”). Similarly, the Know-How incorporated in the documents transmitted, the products delivered and the services provided shall remain the exclusive property of the Supplier, and the Customer shall respect the strict confidentiality thereof.

No license is granted to such Know-How hereunder by implication, estoppel, or otherwise, unless expressly agreed to in writing by the Supplier.

Consequently, the Customer shall refrain from reproducing, using or attempting to reverse engineer any Know-How in any way, without the prior written consent of the Supplier.

ARTICLE 8 – Information technology and personal data protection

In accordance with French law as well as the European Regulation on the protection of individuals with regard to the processing of personal data (RGPD), the Supplier maintains a data processing register in its capacity as data controller in order to supply products and/or provide services to the Customer. The Supplier collects and processes Customers’ personal data solely for the following purposes:

  • The legitimate interest pursued by the Supplier in managing its relationship with its Customers;
  • The performance of the order as well as accounting records and collections;
  • Compliance with legal and regulatory obligations.

Data is stored on servers located in France. It may be communicated to third parties who host and/or support the Supplier website.

The Supplier shall take all necessary precautions to protect the security and confidentiality of the Customer’s personal data, and in particular to prevent it from being altered, distorted or accessed by unauthorized third parties.

The Supplier retains data only for as long as is necessary for the operations for which it was collected and in compliance with current regulations. In this respect, Customer data is kept for a period of 10 years from the last order, without prejudice to other retention obligations or limitation periods.

Under the conditions defined by the French Data Protection Act and the European Data Protection Regulation, individuals have the right to access, question, rectify, limit, transfer or delete data concerning them. Data subjects also have the right to object at any time to the processing of personal data as well as the commercial usage of such data, by e-mail to fboschetti@chematech-mdt.com or by letter to 2 rue Pauline Kergomard 21000 DIJON (France), accompanied by a copy of a signed legal ID (such as a passport). Data subjects also have the right to lodge a complaint with the French CNIL (Commission Nationale de l’Informatique et des Libertés).

ARTICLE 9 – Force majeure

The Parties shall not be held liable if the non-performance or delay in performance of any of their obligations as described herein is due to force majeure, as defined in article 1218 of the French Civil Code. By express agreement, the following is a non-exhaustive list of cases which shall be deemed to constitute force majeure: occurrence of a natural cataclysm; earthquake, storm or other natural disaster; armed conflict, war or terrorist attack; epidemic or health pandemic; labor dispute, total or partial strike at the Supplier, one of its subcontractors or suppliers, service providers, transporters, postal services, public utilities, etc.; imperative injunction from public authorities (import ban, embargo, containment); operating accidents, machinery breakdown, explosion, fire, flood, etc.; the blocking of means of transport for any reason whatsoever; changes in regulations concerning the products or the provision of services.

The Party affected by the force majeure event must immediately inform and justify to the other Party its inability to perform. Such event shall thereupon suspend, for the duration of the force majeure provided it does not exceed 60 days, the performance of the obligations of the affected Party, who shall not be liable for such non-performance nor be forced to pay any damages or late penalties whatsoever.

As soon as the cause of the suspension of such obligations has disappeared, the Parties will resume normal performance of their contractual obligations as soon as possible. To this end, the affected Party will notify the other of the resumption of its obligations.

However, if the force majeure event is definitive or exceeds a period of 60 days, the order or the contract may be terminated by either Party by written notice delivered by registered mail (return receipt requested) or an international courier service with tracking.

ARTICLE 10 – Applicable law / Jurisdiction over disputes

These terms and conditions of sale are governed exclusively by French law to the exclusion of (a) its conflicts of laws principles and (b) the United Nations Convention on Contracts for the International Sale of Goods.

All disputes arising out of or in connection with these Terms and the agreements resulting therefrom, concerning the validity, interpretation, performance, termination and the consequences thereof, shall be submitted to the exclusive jurisdiction of the Commercial Court of DIJON, France after a prior attempt at amicable settlement.