SPECIFIC POLYMERS is a French SAS company (société par actions simplifiée), having its registered office at Parc Via Domitia, 150, avenue des Cocardières, 34.160 CASTRIES, FRANCE, registered at the Montpellier Trade and Companies Registry under number 444 869 028.
SPECIFIC POLYMERS is specialized in the development, the production and the supply of R&D and custom products in the field of functional monomers and polymers, hereinafter the “Products”. Its main work areas are high-performance materials and coatings, environment, energy and health.
SPECIFIC POLYMERS offers to supply the Products to professional clients, mainly academic laboratories or industrial firm, hereinafter the “Clients”.
2.1. These general terms and conditions, hereinafter the “General Terms and Conditions” govern the entirety of the contractual relations between SPECIFIC POLYMERS and the Client. They apply to any and all Products provided by SPECIFIC POLYMERS to the Client.
Any and all orders are subject to the Client’s full and unconditional acceptance of these General Terms and Conditions.
These General Terms and Conditions are binding on the parties and shall prevail, except with the express written consent of SPECIFIC POLYMERS, over any clause or condition to the contrary, and in particular over any of the Client’s general terms and conditions of purchase or any provisions included in any other document whatsoever of the Client (letters, acknowledgment of receipt, quotes, invoices, slips, etc.).
2.2. These General Terms and Conditions cancel and replace any previous ones and may be modified by SPECIFIC POLYMERS without prior notice, on condition of a simple e-mail notification by SPECIFIC POLYMERS to the Client of the amended General Terms and Conditions.
In the event any provision of these General Terms and Conditions is found to be void or otherwise invalid by a Court of law, the remaining provisions shall not in any way be affected and shall remain in force.
3.1. Types of Products
The Products supplied by SPECIFIC POLYMERS may consist in:
– Regular Products, developed by SPECIFIC POLYMERS and offered in its catalogue, hereinafter the “R&D Products”.
– Products manufactured based on specifications defined by the Client, hereinafter “Custom Products”.
The Client is forewarned that the Products are complex and that their use requires special skills. The Client warrants that it has the capabilities and authorizations required to ask SPECIFIC POLYMERS to manufacture and sell the Products and to use the Products.
The Client, who is a professional, is solely responsible for determining whether the Products suit its needs and as a result the Client places orders knowingly. The choice and purchase of a Product are therefore made under the sole responsibility of the Client.
All Products supplied by SPECIFIC POLYMERS are described in the related documentation, hereafter the “Technical Data Sheet” provided by SPECIFIC POLYLMERS with the Products.
3.2. R&D Products
The R&D Products are the Products available in SPECIFIC POLYMERS’ offer at the date of the order.
SPECIFIC POLYMERS reserves the right to modify the list of the R&D Products and to make any modification, in particular technical, to the R&D Products described.
3.3. Custom Products
Custom Products are manufactured by SPECIFIC POLYMERS on the basis of specifications defined by the Client, hereinafter the “Specifications”.
To that end, the Client commits to provide SPECIFIC POLYMERS with the Specifications of the Products which shall include:
• The ingredients and excipients used in the composition of the Products (raw materials),
• The formula of the Product requested,
• The desired manufacturing conditions for the Products,
• Where applicable, legal documentation published by a competent authority to allow the manufacturing of the Products.
• The requested specifications (composition, purity grade, …)
• The quantities.
SPECIFIC POLYMERS undertakes to manufacture the Custom Products, respecting the Client’s Specifications.
Except if otherwise agreed between the parties, raw materials used to manufacture the Products shall be provided by SPECIFIC POLYMERS.
When the raw materials are supplied by the Client, the Client shall inform SPECIFIC POLYMERS of the detailed contents of the order placed with the raw materials supplier and, if asked by SPECIFIC POLYMERS, provides SPECIFIC POLYMERS with a copy of the purchase order. The Client is responsible for delivering the raw materials to SPECIFIC POLYMERS, at SPECIFIC POLYMERS’ premises or at any other place that would be indicated by SPECIFIC POLYMERS.
3.4. Use of the Products
All Products supplied by SPECIFIC POLYMERS, either R&D Products or Custom Products, shall be used exclusively for research and development purposes, to the exclusion of any other use.
The Client must handle all products in accordance with appropriate safety and state of the art practice and by using personal protective equipment.
The Client commits to comply strictly with the material safety data sheet provided by SPECIFIC POLYMERS with the Products, hereinafter the “Material Safety Data Sheet” while using the Products. SPECIFIC POLYMERS disclaims any and all liability should the Client, or its users, fails to respect any of these instructions.
The Client acknowledges that the possibility of health damages or risks has not been fully researched for many Products and that, more generally, considering the particular nature of the Products, SPECIFIC POLYMERS cannot guarantee the non-toxicity of the Products nor their level of toxicity. As such, the Client is aware that the Material Safety Data Sheet has been established on the basis of SPECIFIC POLYMERS’ knowledge at the date of its establishment, that it is non-exhaustive and shall be used only as a guide.
Consequently, SPECIFIC POLYMERS shall not be held liable for any damage resulting from handling or from contact with the Products. It is reminded that the Product are provided solely for research and development purposes and not intended for food, drug or household purposes.
3.5. Legal and Regulatory Compliance
SPECIFIC POLYMERS undertakes to provide all the care and diligence necessary for the manufacture of the Products, respecting the rules of art, professional practices, and all applicable legal and regulatory requirements, particularly with regard to safety, certification and health and environmental standards.
All Products offered by SPECIFIC POLYMERS comply with laws and regulations applicable in the European Union. SPECIFIC POLYMERS shall not be held liable for any non-compliance with local laws and regulations of other countries of delivery, it is the Client’s responsibility to verify such compliance.
SPECIFIC POLYMERS cannot be held liable in the event of non-compliance with laws and regulations of the country where the Products are supplied or used. The Client warrants to SPECIFIC POLYMERS and shall hold SPECIFIC POLYMERS harmless against any private or public action in the event of non-compliance with specific applicable regulations.
SPECIFIC POLYMERS is authorized to subcontract all or part of the conception, manufacture and delivery of the Products to any subcontractor of its choice.
In the event that an order is preceded by a technical or commercial offer, the latter shall remain valid for the period indicated on said offer and for the destination country specified on said offer.
Orders must be placed in writing at SPECIFIC POLYMERS (via postal mail, fax or e-mail). The Client shall provide any and all information required for the order, including in particular : the Client’s complete contact information (name, business registration number, registered address, telephone number, e-mail address), shipping address, billing address (if different), banking information, SPECIFIC POLYMERS reference of the Products ordered (if applicable, mainly for R&D Products), applicable price before VAT and, where applicable, the Client’s VAT identification number.
All orders must be confirmed by SPECIFIC POLYMERS. Otherwise, no contract shall be considered established.
Once an order is confirmed by SPECIFIC POLYMERS, it is firm and final. As a result, no cancellation or modification of the order is possible after such confirmation, except with the prior written consent of SPECIFIC POLYMERS, it being agreed that SPECIFIC POLYMERS reserves the right to condition its consent upon payment, by the Client, of a monetary compensation covering any and all expenses incurred by SPECIFIC POLYMERS in connection with this order, such as shipping costs, training, factory configuration, technical support, specific study, etc.
Delivery of Products by SPECIFIC POLYMERS is limited to the Products designated in the order confirmation.
The approximate date of delivery is specified in the order confirmation. It is provided for information purposes only and is not binding. SPECIFIC POLYMERS shall inform the Client if the delivery date is postponed.
Any delay in supplying the Products shall not, under any circumstances, give rise to any penalties, compensation or order cancellations.
All Products are shipped only when the order is completed. Partial deliveries are subject to SPECIFIC POLYMERS’ written acceptation and to additional costs.
SPECIFIC POLYMERS shall take care for the packaging of the Products, in line with customary trade practices. The cost of packaging shall be added to the invoice and shall be specified on the order.
Delivery shall take place at SPECIFIC POLYMERS’ premises or in any premises of which SPECIFIC POLYMERS will notify the Client. SPECIFIC POLYMERS shall notify the Client of the date and place of delivery by its preferred mode of communication (mail, fax, e-mail).
The Client is responsible for the removal of the Products. The Client undertakes to collect the Products ordered at the latest within 15 days of the date of delivery, of which he would have been advised.
Should the Client not collect the ordered Products within the applicable timeframe, SPECIFIC POLYMERS reserves the right to cancel or maintain the order and to invoice a storage fee at the applicable rate, for every started week following the deadline and up until the Client has collected the Products. During this storage period, all risk relating to the Products shall be borne by the Client.
Unless otherwise agreed between the parties, SPECIFIC POLYMERS shall handle the transportation of the Products to their place of destination as set forth in the order and as confirmed by SPECIFIC POLYMERS in the order confirmation. The cost of shipping shall be added to the invoice and shall be specified on the order.
The Client shall comply with any and all legal requirements in relation to customs and shall be responsible for obtaining any import licenses and complying with all regulations governing the admission of the Products into the country of destination. As such, the Client is responsible for customs clearance of the Products at their place of destination and, in general, for all formalities and corresponding costs, taxes or charges.
Consequently, the Client shall be liable, towards SPECIFIC POLYMERS, but also towards third parties, of any and all consequences and damages resulting from a failure to comply with customs obligations and regulations, in completing the appropriate customs formalities or in paying the applicable customs duties. The Client shall defend, indemnify and hold harmless SPECIFIC POLYMERS in case of such failure and shall refund any and all costs that may be consecutively charged to SPECIFIC POLYMERS, such as costs of return of the Products. Moreover, SPECIFIC POLYMERS shall not be held responsible for a possible deterioration of the Products or for possible damages caused by the Products during their storage in the customs deposit.
The Client is responsible for the receipt of the Products at their delivery place.
The Client shall immediately check the state of the received Products. It is the Client’s responsibility to make all necessary and detailed reservations to the carrier and to notify the carrier of any missing Products or packages or discernible defects on the delivery slip, a copy of which will be simultaneously sent to SPECIFIC POLYMERS by registered letter with acknowledgement of receipt.
Should the Client fail to notify SPECIFIC POLYMERS of any objections within three business days from the receipt of the Products, the Products shall be considered conforming and free from discernible defects, and no claim shall thereafter be accepted by SPECIFIC POLYMERS.
Notwithstanding any claim that may be made to the carrier, SPECIFIC POLYMERS assumes no obligation or warranty with respect to missing Products or discernible defects to the Products which have not been notified by the Client according to the procedure outlined above.
SPECIFIC POLYMERS shall, at its discretion, replace or reimburse in a timely fashion and at its own expense, delivered Products whose discernible defects or nonconformities have been duly notified and proven by the Client.
8.1. Transfer of risks
SPECIFIC POLYMERS is solely responsible for the Products as long as they stay on its premises. The risks shall pass to the Client at the time of removal of the Products by the Client, by the transporter or by the person appointed by the Client to remove the Products.
Consequently, the Client shall take all necessary insurance from this date, in particular, for transportation, even if transportation is handled by SPECIFIC POLYMERS.
8.2. Transfer of ownership
PRODUCTS ARE SOLD UNDER RETENTION OF TITLE.
SPECIFIC POLYMERS retains ownership over the Products and the transfer of ownership from the Products to the Client shall occur only upon full payment of the price of the Products and all accessories, irrespective of the receipt date of the Products.
The Client undertakes not to resell, pledge or otherwise alienate the Products until payment has been made in full. In the event of a seizure of property or any other third-party intervention regarding the Products, the Client shall immediately inform SPECIFIC POLYMERS, to allow SPECIFIC POLYMERS to oppose such intervention and preserve its rights. Furthermore, the Client shall immediately inform the third-party involved that the Client is not the owner of the Products.
As a result, until the date on which ownership is transferred, the Client shall be responsible and liable for any and all damages or losses the Products may sustain or cause, whatever the cause. The Client, therefore, undertakes to insure all of the Products in its possession or under its control for their replacement value.
Should the Client fail to pay any invoices by their due date, SPECIFIC POLYMERS reserves the right to demand, upon simple request, the restitution by the Client of any unpaid Products, with all related charges to be borne by the Client. Products still in the Client’s possession shall be presumed to be unpaid Products.
SPECIFIC POLYMERS agrees to correct any defects in the Products if and when it is demonstrated that such defect is the result of a design (except for Custom Products) or manufacturing flaw but excluding any immediately apparent defects that the Client was in a position to note at the time of receipt as set forth.
Such a warranty shall not apply if any modifications have been made on the Products, either directly or indirectly, by the Client. Such a warranty shall not apply for any defects or damages caused by the reasonable wear and tear of normal usage, improper usage or negligence in the storing, transportation, loading or handling.
Any claim concerning defective Products must be sent to SPECIFIC POLYMERS as soon as possible and at least within a 6-month period, starting from the delivery date. It must indicate the exact nature of the defect and must be submitted with the following documents: order confirmation, invoice or delivery slip. The Client must also return the Products, at its own expense, to SPECIFIC POLYMERS to allow it to examine the Products in question and check the alleged defects.
Should the claims be founded, SPECIFIC POLYMERS shall, at its discretion, replace or reimburse in a timely fashion and at its own expense, Products whose discernible defects or nonconformities have been duly notified and proven by the Client.
Under no circumstance shall the obligation of guarantee or the liability of SPECIFIC POLYMERS go beyond the exchange or reimbursement of the Products recognised as defective by SPECIFIC POLYMERS or by a court that has ruled definitively on this point.
It is expressly agreed between the Parties that claims on insignificant material defects shall not give the right to any reimbursement or replacement by SPECIFIC POLYMERS. An insignificant material defect is characterized by any modification of the Product that insignificantly diminishes the value or the suitability of the Product for a standard application.
The price of the Products is the price as set forth in the order confirmation, in addition to all relevant taxes at the applicable rate on the corresponding invoice date. Any and all customs taxes shall be the exclusive responsibility of the Client.
All prices provided are net, and do not include taxes, packaging costs, transportation costs or potential travel expenses or insurance to be borne by the Client. All taxes, fees, customs duties, ancillary import charges or other service costs to be paid in the application of French regulations or those of the destination or transit countries, are to be borne exclusively by the Client.
Unless otherwise agreed between the parties, the prices are given and payable in euros.
10.2. Payment terms
SPECIFIC POLYMERS shall invoice the Client by e-mail, fax or postal mail.
An instalment of 30% is demanded at the order if the total amount of the order exceeds 5,000 euros, excluding taxes.
Unless otherwise agreed between the parties, invoices shall be paid in full, by credit transfer, credit card or Paypal payment within 30 calendar days from the date of issue of the invoice, to the account’s office or bank account of SPECIFIC POLYMERS.
Bills of exchange may only be used for payment after SPECIFIC POLYMERS’ prior and written approval.
No discount will be granted for early payment.
Should payment in full not be received, SPECIFIC POLYMERS reserves the right to refuse to deliver the Products.
In the case where instalment payments have been agreed between the parties, if an agreed payment date is not upheld by the Client, or if payments are suspended, SPECIFIC POLYMERS shall be entitled to demand immediate payment regardless of any agreed maturity date and/or to refuse execution of further deliveries or acceptance of further orders until settlement has been effected by the Client.
In the case of an unpaid invoice, SPECIFIC POLYMERS shall reserve the right to terminate the corresponding order and/or to suspend all orders in progress for Products.
11.1. R&D Products
All intellectual property rights and interests to and in the R&D Products supplied by SPECIFIC POLYMERS remain SPECIFIC POLYMERS’ exclusive property, except for third-party’s property rights.
The Client is only granted a non-exclusive usage right of the Products. The Client is prohibited from manufacturing or having manufactured identical or similar products.
SPECIFIC POLYMERS retains all intellectual property rights relating to all of its drawings, specifications, specimens, samples, technical specifications, models, catalogues and documents of all kinds. These elements cannot be communicated to any third-party, reproduced or executed without its prior written authorization.
Nothing contained herein shall construe as or operate to grant any license to the Client in respect of any of SPECIFIC POLYMERS’ existing or future patent rights, registered or unregistered designs, copyright, trade names, trademarks or other intellectual property rights.
11.2. Custom Products
When provided by the Client, it is expressly agreed that the Specifications of the Custom Products, and in particular the formula of the Custom Products, developed by the Client or by any third-party for its specific interest is the exclusive property of the Client or of that third-party. The Client shall therefore be free to have the Products manufactured and packaged by any third-party of its choice.
While ordering the manufacture of the Products by SPECIFIC POLYMERS, the Client grants SPECIFIC POLYMERS a worldwide, non-exclusive, non-transferable use of the Specifications and in particular the formula of the Customs Products and any related intellectual property rights in view of allowing SPECIFIC POLYMERS to manufacture the Custom Products. SPECIFIC POLYMERS shall only be authorized to use them to manufacture the Custom Products as requested by the Client. SPECIFIC POLYMERS is, therefore, strictly prohibited from selling, to any third-party, Products manufactured according to the Client’s Specifications or formula.
The Client guarantees SPECIFIC POLYMERS the rights required to grant and transfer to SPECIFIC POLYMERS or its subcontractors the right to use the Specifications, and in particular the formula to manufacture the Custom Products. In this respect, the Client guarantees SPECIFIC POLYMERS protection against any infringement proceedings brought by a third party.
The Client and SPECIFIC POLYMERS may, during their relationship, each come to have access to confidential information on the other party.
Confidential information includes the terms and pricing of an order, instructions for use and related notices as well as any other documents, formulae or materials relating to the Products, as well as any other information identified as confidential.
Confidential information does not include that which, in the absence of fault, can be found in the public domain; that which the receiving party possessed prior to their communication from the other, without having obtained them from the other party; that which is communicated to either party by a third-party, without confidentiality restrictions; as well as that which is developed independently by either party.
The party to whom a piece of confidential information is communicated shall preserve that party’s confidentiality with the same care as it would preserve its own confidential information, and shall not communicate or disclose it to third parties, save with the prior written consent of the other party, or if otherwise required by law to do so.
This confidentiality clause extends to all members of the parties’ personnel, for whom all necessary measures should be put in place to ensure that this duty is upheld.
The terms of this duty of confidentiality shall last for the duration of the relationship between the Parties and for a period of five (5) years thereafter.
All documents communicated by a party to the other under this provision will remain its exclusive property and will be returned to it upon request.
Notwithstanding the above confidentiality provision, the Client agrees, ex gratia, that SPECIFIC POLYMERS may use its name, trademark, corporate name or any other reference information in its promotional materials and advertisements.
In processing of its orders, and, as a general matter, in its communications with SPECIFIC POLYMERS, the Client may communicate a certain amount of personal data concerning its representatives, employees, partners or clients (including, for example, first and last names, physical and electronic addresses and phone numbers), and vice versa.
In this respect, the Parties undertake to comply with the regulations applicable to the processing of personal data and, in particular, with the General Data Protection Regulation of 14 April 2016, otherwise known as the “GDPR”, as well as with the French Information Technology, Data Files and Civil Liberties Act as amended by law n°2018-493, known as “LIL 3”, of 20 June 2018 and its implementing decree, as well as the rewriting order n°2018-1225 of 12 December 2018.
Each party acts as a data controller within the meaning of the aforementioned regulations, and shall be responsible for informing the data subject whose personal data is collected and processed and for ensuring compliance with such regulations.
15.1. SPECIFIC POLYMERS’ liability
As a professional, the Client shall use the Products at its own risks and under its own responsibility, and SPECIFIC POLYMERS shall in no way be held liable for any incorrect or non-compliant use by the Client.
In any case, the responsibility of SPECIFIC POLYMERS shall be limited to the cost of the defective or non-conforming Products, to the express exclusion of any payment for damages for direct or indirect prejudice or loss of earnings.
Thus, SPECIFIC POLYMERS shall not be liable for any harm or damage, whether direct or indirect, accessory, or special, including damages that may result from lost profits, lost earnings or prevention of use, suffered by the Client itself or any third-party.
15.2. Client’s Liability
When Products are manufactured based on the Client’s documents and formulae, SPECIFIC POLYMERS shall not be held responsible for the design of the Products and the related consequences.
Moreover, SPECIFIC POLYMERS shall not be liable for any infringement of third party’s intellectual property rights in relation to the Specifications and the Client’s formula. The Client shall indemnify SPECIFIC POLYMERS against all actions, losses, damages, expenses, costs or other liability including legal fees arising from any claims of infringement of third party’s intellectual property rights.
SPECIFIC POLYMERS accepts no liability (to the extent permitted by French law) for any claims made against the Client for the infringement of third-party intellectual property rights in connection with the sale of Custom Products by SPECIFIC POLYMERS.
Should SPECIFIC POLYMERS be impeded in its production and delivery of Custom Products manufactured on the basis of the Client’s Specifications, SPECIFIC POLYMERS shall be entitled to discontinue production and delivery of the disputed Custom Products and to demand compensation from the Client for the costs sustained as a result. This shall not prejudice additional compensation claims on the part of SPECIFIC POLYMERS.
Neither Party shall be liable for damages for any delay or default in their respective obligations under these General Terms and Conditions, if such delay or default is caused by third parties and conditions beyond their control, such as but not limited to acts of God, catastrophes, government restrictions, wars, epidemics, acts of terrorism, insurrections, strikes, fires, floods, special events cancellation, failure of equipment, disturbances of the energy supply, lack of primary materials or parts, transmission difficulties or work stoppages.
The Party rendered unable to perform or delayed in performing by the event of force majeure shall promptly inform the other Party upon written notice. So long as any such delay or default continues, the Party affected by the conditions beyond its control shall keep the other Party at all times fully informed concerning the matters causing the delay or default on the prospects of their ending.
However, provided that such delay or default shall exceed three months from the receipt of the notice by one Party, then the other Party may, so long as the delay or default continues, terminate this order upon two weeks’ written notice to the first Party.
These General Terms and Conditions are governed by French law. It is expressly understood that the Vienna United Nations’ Convention on Contracts for the International Sale of Goods does not apply to the operations resulting from these General Terms and Conditions and, more generally, to the supply of Products by SPECIFIC POLYMERS to the Client.
ANY DISPUTES ARISING FROM THESE GENERAL TERMS AND CONDITIONS AND, MORE GENERALLY, FROM THE ORDER AND THE SUPPLY OF THE PRODUCTS, WHETHER REGARDING THEIR VALIDITY, INTERPRETATION, EXECUTION, TERMINATION, CONSEQUENCES OR FOLLOW-UP, SHALL BE UNDER THE SOLE JURISDICTION OF THE COMMERCIAL COURT OF MONTPELLIER (TRIBUNAL DE COMMERCE), FRANCE.