SCOPE OF THE GENERAL TERMS AND CONDITIONS OF SALE
These General Terms and Conditions of Sale govern all contractual transactions (orders, deliveries, payment conditions, etc.) between the CUSTOMER and INNOV’IA (registered with the Trade Register of LA ROCHELLE under No. 417 889 573) or one of its subsidiaries, hereinafter referred to as “INNOV’IA and Subsidiaries”, i.e. without limitation: LC INODRY, INNOV’IA 3I, INNOCAPS, IDCAPS or CAPSULAE.
Therefore, these General Terms and Conditions of Sale shall apply to the relationship between the Customer and the company of the “INNOV’IA and Subsidiaries” group which is a party to the order and/or contract with the CUSTOMER, on the one hand, and any other company of the INNOV’IA and Subsidiaries group, on the other hand.
Accordingly, unless otherwise agreed, these General Terms and Conditions of Sale shall apply to any relationship between the Customer and all the INNOV’IA and Subsidiaries companies.
Unless otherwise expressly agreed by INNOV’IA and Subsidiaries, any order shall involve full acceptance of these General Terms and Conditions of Sale which shall prevail over any contrary or incompatible provisions of the CUSTOMER’s general terms of purchase or any other document of the CUSTOMER, regardless of when INNOV’IA and Subsidiaries are made aware thereof, except those which were expressly accepted by INNOV’IA and Subsidiaries.
Moreover, only the special conditions of the manufacturing agreement and its appendices agreed in writing and signed between INNOV’IA and Subsidiaries and the CUSTOMER may validly deviate from these General Terms and Conditions of Sale.
To be validly formed, any contract between INNOV’IA and Subsidiaries and the CUSTOMER or any other agreement likely to deviate from these General Terms and Conditions of Sale must be returned by the Customer, signed and accepted without reservation, within the expressly stipulated time limit for acceptance or, if no such time limit has been specified, within 5 (five) working days following the date it is sent by INNOV’IA and Subsidiaries.
INNOV’IA and Subsidiaries shall lawfully be entitled to cancel any contract offer if they have not received a reply thereto within 5 (five) working days, and without the need to issue any reminder.
Any amendment or reservation made by the CUSTOMER in relation to the conditions of the contract shall be null and void if it has not been expressly accepted by INNOV’IA and Subsidiaries beforehand.
These General Terms and Conditions of Sale have been drawn up and provided to the CUSTOMER pursuant to Article L. 441-1 of the French Commercial Code. They shall apply in their currently valid version on the date the order is placed or the contract is signed, without prejudice to the right of INNOV’IA and Subsidiaries to amend them at any time, for any contract and any order subsequent to said amendment.
All orders must be placed via a written document signed by the CUSTOMER and sent to INNOV’IA and Subsidiaries. Said order shall be construed as an irrevocable promise to purchase the service subject to these General Terms and Conditions of Sale. The issuing by INNOV’IA and Subsidiaries of proforma invoices, rates or any other document may not be considered as a commitment by INNOV’IA and Subsidiaries to supply any of the services included on said documents.
The contract shall not be binding unless INNOV’IA and Subsidiaries have given their express acceptance of the order, via any written method. Moreover, INNOV’IA and Subsidiaries reserve the right to accept or refuse all or part of the order.
However, the order shall be deemed accepted, unless otherwise specified by the CUSTOMER or INNOV’IA and Subsidiaries at least 6 (six) weeks before performance of the service.
Changes to and cancellation of the orders:
The order expresses the CUSTOMER’s irrevocable consent which cannot be cancelled unless otherwise previously agreed by INNOV’IA and Subsidiaries.
Pursuant to Article 1231-5 of the French Civil Code, should the CUSTOMER unilaterally cancel the order, INNOV’IA and Subsidiaries reserve the right to demand that the CUSTOMER pay an amount equal to 50% of the price excluding tax of the initial confirmed order as damages to compensate the cost of the lost resources resulting from said cancellation. Therefore, any down payment made by the CUSTOMER shall insure to INNOV’IA and Subsidiaries to the extent of said amount. It is specified that the aforementioned amount to compensate the cost of the lost resources shall cover the consequences of unavailability of the management and production resources intended to honour the order, including routine labour and procurement expenses.
As an amount separate from these costs, INNOV’IA and Subsidiaries also reserve the right to demand full repayment of all or part of the raw materials purchased to manufacture the products as well as the costs incurred for equipment, studies and tools which are specific to the order.
PRICE AND INVOICING
Unless otherwise expressly agreed, the prices included in the contract entered into with the CUSTOMER or, failing this, in the proposal made by INNOV’IA and Subsidiaries for the ordered work, shall be in Euros excluding value added tax and shall be without prejudice to the provisions relating to the cost of transport (Article 6 hereof). The prices shall be firm and final and shall refer exclusively to the products and manufacturing work stated on the proposal, excluding specific analyses, the packages required for proper preservation of the finished product during storage and suited to the transport, storage and processing of waste.
A rate adjustment shall automatically be applied by INNOV’IA and Subsidiaries should the dry extract of the materials supplied by the CUSTOMER differ from the dry extract used to estimate the cost of the service.
Any damage to equipment caused by the use of the goods entrusted by the CUSTOMER, that directly stems from proven nonconformity of the goods, shall be borne by the CUSTOMER in addition to the price of the service.
Any additional cleaning time needed, in excess of the number of hours planned by the contract or, failing this, in excess of the cleaning time that is typically needed based on the dimensions and intended purpose of the equipment in use, shall be invoiced in proportion to how much additional time was spent.
Unless otherwise specified and without prejudice to Article 13 of these General Terms and Conditions of Sale, which shall be applied as a priority by reason of an unforeseen circumstance or force majeure event as defined in said Article, it is agreed that the prices shall be revisable as follows, under the conditions stipulated by Article 1195 of the French Civil Code:
- Where a change in circumstances occurs that could not be foreseen upon entering into of the contract which makes its continued performance unduly burdensome for a party which did not accept to bear the risk thereof, said party shall be entitled to request the renegotiation of the contract;
- Should the renegotiation be refused or fail, the parties may either agree to rescind the contract or by mutual agreement apply to the courts to have the contract adjusted.
- If no agreement is reached within a reasonable time period as set by these Terms and Conditions of Sale to ten (10) working days, except in cases of special urgency associated with the nature of the product or the service, the judge may, upon application from a party, revise or terminate the contract, at the date and under the conditions that the judge shall determine.
Any invoice shall be drawn up in duplicate by INNOV’IA and Subsidiaries and shall state the information stipulated in Article L. 441-9 of the French Commercial Code.
Unless otherwise stipulated, invoices shall be payable 30 (thirty) days net from the date of the invoice by bank transfer to be made at the CUSTOMER’s expense to the account specified by INNOV’IA and Subsidiaries. Full payment or the supply of a guarantee may always be demanded by INNOV’IA and Subsidiaries at the time of a first order or if the CUSTOMER’s financial situation has deteriorated. No discount shall be granted in the event of early payment.
Under no circumstances shall the payments due to INNOV’IA and Subsidiaries be suspended or be subject to any reduction or offsetting without the written agreement of INNOV’IA and Subsidiaries.
In the absence of full or partial payment of the finished products shipped by INNOV’IA and Subsidiaries and/or removed by the CUSTOMER, the CUSTOMER shall pay to INNOV’IA and Subsidiaries a late payment penalty applied to the outstanding including tax. Said late penalty shall be equal to the interest rate applied by the European Central Bank to its most recent refinancing transaction, in force on the day of shipment or pick-up of the finished products, increased by 10 percentage points. It shall be applied without the need for a reminder or prior formal notice as of the day following the due date for payment specified on the invoice or, failing this, the 31st day following the date of the shipment or the pick-up of the finished products.
In addition to these late payment penalties, and pursuant to Articles L.441-6 and D.441-5 of the French Commercial Code, the debtor shall lawfully be liable for a fixed charge of 40 (forty) euros as collection costs in the event of late payment.
Any payment made to INNOV’IA and Subsidiaries shall be applied to the amounts owed by the CUSTOMER, regardless of the reason, starting with those amounts whose due date is the earliest.
Right of retention and termination clause:
Any failure to pay a single instalment shall lead to the end of the contract’s term with all sums owed becoming immediately payable by the CUSTOMER and the suspension of the contracts, productions or deliveries after the sending of a formal notice by registered letter with acknowledgement of receipt.
Therefore, INNOV’IA and Subsidiaries shall be entitled to exercise their right of retention on all products in their possession (entrusted products or products which have been manufactured or are in the process or being manufactured as well as the associated supplies, raw materials, etc.) and to suspend the deliveries.
Unless otherwise stipulated, if the CUSTOMER has not paid the outstanding amounts within fifteen (15) days following said formal notice, the contract shall be lawfully terminated, without prejudice to any damages that may be requested by INNOV’IA and Subsidiaries.
Finished products from pilot tests are by definition in the development phase and shall therefore not be market ready. Any marketing of these products shall be done under the CUSTOMER’s sole responsibility and INNOV’IA and Subsidiaries shall not be held liable in any way in this respect.
In connection with the pilot tests and/or industrial transfers, the payment of any amount due to INNOV’IA and Subsidiaries may not be suspended by the CUSTOMER because of a product that does not meet its expectations or a result that differs from that anticipated for the application of the product. This condition shall also apply in the event of a production problem which occurred during the pilot test itself and/or the industrial transfer or finally, a problem in setting the parameters arising from the very nature of the raw material. In addition, the downtime created by these incidents shall form an integral part of the time for the pilot test and/or industrial transfer to be invoiced.
The performance of the pilot test and/or the industrial transfer and the associated payment shall not be construed as granting the CUSTOMER any privilege whatsoever on the use of INNOV’IA and Subsidiaries’ know-how in industrial manufacturing and knowledge acquired during the pilot test and/or the industrial transfer.
DELIVERY – TRANSFER OF RISKS AND TRANSPORT
In general, the conditions of INNOV’IA and Subsidiaries shall apply to the products deposited and recovered by the CUSTOMER in its workshops.
Unless otherwise agreed, goods shall be shipped at the CUSTOMER’s risk and expense regardless of the origin of the packages, the mode of transportation and the place of dispatch and of destination. Therefore, the stowing, chocking, protection, identification and insurance of the shipped goods shall be incumbent upon the CUSTOMER. INNOV’IA and Subsidiaries shall not be held liable for any damage, delays, breakage or theft during the journey, as the carriers shall be solely liable in this respect. It is the CUSTOMER’s responsibility to make the usual reservations with regard to these carriers.
Packages: unless otherwise stipulated, the CUSTOMER shall deliver its parts appropriately packaged to avoid any damage during the shipment. In the event of damaged or inadequate packaging, INNOV’IA and Subsidiaries shall be entitled to replace and invoice said packaging with the CUSTOMER having been previously informed thereof.
As regards shipment of goods to INNOV’IA and Subsidiaries:
Unless otherwise indicated by INNOV’IA and Subsidiaries, the CUSTOMER shall make a single delivery per contract to the delivery locations specified by INNOV’IA and Subsidiaries. The goods entrusted by the CUSTOMER must be delivered carriage and packaging paid.
Goods must be accompanied by a delivery slip bearing reference to the INNOV’IA and Subsidiaries purchase order number, the CUSTOMER’s article codes and names, without prejudice to the fact that the weight or the quantity of the parts mentioned on the packing slips shall only be considered valid after receipt by INNOV’IA and Subsidiaries.
Any item delivered without marking or without the required documents shall be systematically placed in quarantine. As such the cost of searches and identification carried out in the plants or warehouses of INNOV’IA and Subsidiaries shall be invoiced to the CUSTOMER on a prorata temporis basis.
The CUSTOMER shall adhere to the policies laid down by INNOV’IA and Subsidiaries including in relation to the security of the INNOV’IA and Subsidiaries sites, food safety, health and environmental protection, in accordance with applicable regulations and the INNOV’IA and Subsidiaries certifications, which the CUSTOMER represents that it was able to review in advance.
Upon return of the processed products:
The CUSTOMER must only accept the delivered products after it has ensured in the presence of the carrier that they do not exhibit any signs of inappropriate storage in view of the nature of the products, deterioration, damage, alteration, missing items or theft and that their weight corresponds to that mentioned on the shipping documents.
Whenever the delivered products are not consistent with the information stated on the shipping document or have suffered deterioration, damage or alterations or if items are missing, the CUSTOMER must immediately prepare a declaration of nonconformity, including by issuing full specific reservations with the reasons on the shipping document and confirm to the carrier, by registered letter with acknowledgment of receipt, the specific nature of the nonconformity, within a period of 3 (three) days following receipt of the products.
If INNOV’IA and Subsidiaries are responsible for dispatching or providing for the dispatch of the products, in this case, it shall act as the CUSTOMER’s representative, including in relation to payment. Therefore, it shall have grounds to invoice all of its disbursements and its own cost.
Where the CUSTOMER commissions the services of a carrier or freight forwarder, or has appointed such service providers, the CUSTOMER shall personally verify the solvency of the carrier or freight forwarder and shall hold INNOV’IA and Subsidiaries harmless against the consequences of its failure.
If the CUSTOMER calls on a freight forwarder or carrier to remove the goods intended for a third party:
- said third party shall be considered the recipient as defined in Article L 132-8 of the French Commercial Code;
- the CUSTOMER shall be considered the shipper as defined in said article and undertakes to sign the waybill.
Risks shall be transferred upon delivery of the supplies as stipulated by the clauses and at the place stated on the order. Failing this, they shall be transferred upon removal from the INNOV’IA and Subsidiaries premises. The risks shall also be borne by the CUSTOMER by virtue of a registered letter with acknowledgment of receipt sent to the CUSTOMER under the conditions stipulated in Articles 1345 to 1345-3 of the French Civil Code, except in the event of wilful misconduct or gross negligence of INNOV’IA and Subsidiaries.
RECEIPT OF RAW MATERIALS BY INNOV’IA AND SUBSIDIARIES
Any acceptance of a delivery by the authorised staff of INNOV’IA and Subsidiaries shall be deemed to have taken place subject to counting and check. The final acceptance of the goods shall be subject to subsequent acceptance by the INNOV’IA and Subsidiaries inspection staff without reservations following an examination to verify that the quantity and quality of the delivery are conforming.
If the delivery is nonconforming, including on procedural grounds such as the absence of the delivery slip, the goods shall be held available to the CUSTOMER for 7 (seven) working days as from the date on which the CUSTOMER is advised by INNOV’IA and Subsidiaries of the nonconformity or excess items in the order.
Should the CUSTOMER not remove the goods or fail to give instructions within said time limit, said goods shall be shipped back to the CUSTOMER, at its expense and risk. Furthermore, the CUSTOMER shall be bound to replace at its expense, any refused product upon request from INNOV’IA and Subsidiaries.
Where the goods cannot be returned to the CUSTOMER, due to their dangerous or potentially dangerous characteristics, INNOV’IA and Subsidiaries may destroy the goods at the CUSTOMER’s expense, after sending a second reminder to the CUSTOMER to pick-up the goods within an additional time limit of 7 (seven) working days.
If the presence of the goods poses a serious and imminent threat to people and property thereby requiring their immediate destruction, INNOV’IA and Subsidiaries may immediately carry out said destruction at the CUSTOMER’s expense without the need to comply with the aforementioned notice periods.
ACCEPTANCE OF THE PRODUCTS BY THE CUSTOMER
The conditions for acceptance of the products by the CUSTOMER must be specified by mutual agreement at the time of the order or in the contract entered into with INNOV’IA and Subsidiaries. Failing this, acceptance shall take place in the workshops of INNOV’IA and Subsidiaries on the date agreed between the parties in question, or on the date scheduled to pick up the goods. If the CUSTOMER is not present or represented at the time of the acceptance, said acceptance shall nevertheless be considered to have taken place with all parties present. With the express agreement of INNOVIA SAD and Subsidiaries, acceptance may however be carried out at the CUSTOMER’s premises or at the premises of the end user.
The delivery of the goods entrusted to INNOV’IA and Subsidiaries shall be requested from the CUSTOMER in a quantity and at a date specified on the contract which must be strictly observed. If a greater quantity of the goods is delivered or if the goods are delivered before the time limit requested by INNOV’IA and Subsidiaries due to reasons ascribable to the CUSTOMER, minimum weekly storage costs of 11 (eleven) Euros before tax per pallet and per calendar week begun in excess (quantity and/or time limit) shall be applied and charged to the CUSTOMER without the need for a reminder.
Likewise, the pick-up by the customer and/or the shipment by INNOV’IA and Subsidiaries of the goods intended for the CUSTOMER must be carried out within a maximum time period of 5 (five) calendar days after the quality release of the goods performed by INNOV’IA and Subsidiaries and maximum 7 (seven) days after the date of dispatch by INNOV’IA and Subsidiaries of the released samples to the CUSTOMER. If the goods are picked up by the CUSTOMER and/or shipped by INNOV’IA and Subsidiaries beyond the aforementioned time limit for reasons ascribable to the CUSTOMER, minimum weekly storage costs of 11 (eleven) Euros before tax per pallet and per week begun in excess (quantity and/or time limit) shall be applied and charged to the CUSTOMER without the need for a reminder.
Any waste from nonconforming raw materials belonging to the CUSTOMER, any production waste and consumables from a semi-finished product or a finished product manufactured by INNOV’IA and Subsidiaries as part of a feasibility study, a pilot study, an industrial test or industrial production, soiled packaging from a raw material belonging to the CUSTOMER, a semi-finished product, a finished product manufactured by INNOV’IA and Subsidiaries as part of a feasibility study, a pilot study, an industrial test or industrial production shall be the sole property of the CUSTOMER and must be recovered by the CUSTOMER at the end of the manufacturing service.
If the waste is not recovered as soon as the manufacturing service is completed, the following rates shall be applied and invoiced to the CUSTOMER without notice depending on the type of waste determined by the material safety data sheet:
- Ordinary industrial waste:
Processing fee: € 150 excluding tax per ton of processed ordinary industrial waste
Fixed transport and handling fee: fixed rate of € 100 excluding tax per type of waste
Storage fee: € 11 excluding tax per calendar week per pallet as from the date the waste is produced until pick-up by the CUSTOMER
- Special industrial waste:
Processing fee: € 2500 excluding tax per ton of processed special industrial waste
Fixed transport and handling fee: € 220 excluding tax per processed pallet
Storage fee: € 11 excluding tax per calendar week per pallet as from the date the waste is produced until pick-up by the CUSTOMER
- Non-toxic soiled packaging:
Processing fee: € 950 excluding tax per ton of processed soiled packaging
Fixed transport and handling fee: € 220 excluding tax per processed pallet
Storage fee: € 11 excluding tax per calendar week per pallet as from the date the waste is produced until pick-up by the CUSTOMER
A cost estimate duly accepted by the CUSTOMER upon signature of the contract shall be established in relation to any other waste potentially produced in connection with a feasibility study, pilot study, industrial test or industrial production.
LIABILITY AND WARRANTY
The liability of INNOV’IA and Subsidiaries shall be strictly limited to compliance with the CUSTOMER’s requirements set out in the specification document or in any other contractual document. No claim by the CUSTOMER regarding the quality of the finished product shall be accepted in the absence of strict specifications signed by both parties.
In this respect and unless otherwise stipulated, the CUSTOMER shall, based on its professional expertise in its field and depending on the industrial production resources that it has available, be able to specifically determine the work based on its own industrial data or that of its customers and the type of material to be processed as well as the intended use of the part and the industrial result.
INNOV’IA and Subsidiaries shall carry out the work requested by the CUSTOMER, in accordance with best industry practices.
Throughout the period that the products are in the possession of INNOV’IA and Subsidiaries, including during performance of the work, the liability of INNOV’IA and Subsidiaries shall be governed by Articles 1789 et seq. of the French Civil Code.
Therefore, should the products expire, INNOV’IA and Subsidiaries shall only be liable pursuant to Article 1789 of the French Civil Code. However, INNOV’IA and Subsidiaries shall not be held liable in this respect if it is established that the loss or damage to the CUSTOMER’s property is only due to its slight negligence.
In accordance with Article 1790 of the French Civil Code, if the material entrusted to INNOV’IA and Subsidiaries was defective and expired or was damaged due to its poor quality, the cost of the processing or the coating carried out by INNOV’IA and Subsidiaries shall be borne by the CUSTOMER.
INNOV’IA and Subsidiaries shall under no circumstances be liable for the improper use of the products, including but not limited to the following:
- a defect, nonconformity, absence of definition or adaptation of the material supplied or dictated by the CUSTOMER;
- loss of identity of the product further to a change in its original condition (e.g. physical and/or chemical and/or microbiological properties) for reasons attributable to the CUSTOMER and/or the end user;
- various additions caused by the CUSTOMER and/or end user, thereby changing the initial characteristics of the material or the product;
- misuse and/or incorrect use of the product or use which breaches the rules of caution and customary professional practices;
- deterioration of the product further to storage under unsuitable conditions.
In general, if the products transmitted or defined by the CUSTOMER feature configuration or material defects, INNOV’IA and Subsidiaries shall not be held liable for the damage suffered by said products and shall be entitled to invoice the CUSTOMER all corresponding costs.
The CUSTOMER undertakes to inform INNOV’IA and Subsidiaries of the exact location where the products were stored and to authorise the representatives of INNOV’IA and Subsidiaries to inspect said location at any time during normal business hours to check that the products are properly stored.
The CUSTOMER shall provide evidence of any product defects or anomalies claimed. INNOV’IA and Subsidiaries reserve the right to carry out any checks on site.
In any case, the liability which is not acknowledged by INNOV’IA and Subsidiaries shall be determined via an expert investigation in the presence of both parties.
Limitation of liability clause:
Except for the damage arising from the breach of an essential obligation of INNOV’IA and Subsidiaries and/or wilful misconduct or gross negligence ascribable to INNOV’IA and Subsidiaries, if INNOV’IA and Subsidiaries are held liable in any way, said liability shall be limited to property damage that was foreseeable at the time of the order or the signature of the contract with the CUSTOMER and shall not exceed a limit comprised of the value per kg of the raw material, as represented by the CUSTOMER or, failing this, assessed based on the cost price on the day of the loss borne by the CUSTOMER in relation to the manufacturing or the purchase of said raw material.
INNOV’IA and Subsidiaries have taken out an insurance policy covering the liability arising from the reported activities and in particular the damage caused to the material entrusted under the conditions and the limits of said cover.
The CUSTOMER shall insure any goods supplied as from transport from its plant to the plants and warehouses of INNOV’IA and Subsidiaries as well as any finished product as from storage in the plants and warehouses of INNOV’IA and Subsidiaries until the end of transport to the location specified by the CUSTOMER.
Should an event occur that is considered as a force majeure event, the performance of the affected obligations of INNOV’IA and Subsidiaries shall automatically be suspended and the time periods for performance shall be extended by a period equal to the resulting delay, without penalties for INNOV’IA and Subsidiaries.
Pursuant to Article 1218 of the French Civil Code, force majeure is considered as any event beyond the control of INNOV’IA and Subsidiaries, which could not be reasonably foreseen upon entering into of the contract and whose effects cannot be avoided by appropriate measures and which prevents the fulfilment of the obligations incumbent upon INNOV’IA and Subsidiaries.
Accordingly, a force majeure event may result from the following, without limitation:
- riots, acts of war and terrorism;
- natural disasters;
- full or partial strike;
- disruption of transport;
- electricity and water outages and any technical accident affecting the proper operation of the facilities;
- supply difficulty stemming for example from a shortage of raw materials;
- the exercise of any right of withdrawal, such as caused by the processing of potentially hazardous materials or pathogens by the employees who are likely to be involved in the fulfilment of the obligations that the co-contracting company of INNOV’IA and Subsidiaries has towards the CUSTOMER.
Should, as a result, INNOV’IA and Subsidiaries not be able to fulfil their obligations, they shall promptly inform the customer thereof unless they are unable to do so as a result of the claimed event, by specifying the nature of said event and, as appropriate, its duration and its effects if such effects are foreseeable at that stage.
INNOVI’A and Subsidiaries shall also advise the CUSTOMER as applicable of the date at which the impediment no longer exists.
Unless a better agreement is reached between the parties, the impediment shall be considered as final if the length of the event exceeds the shortest of the following two periods: (i) the shelf life of the product supplied by the customer, but at least one week from the occurrence of the event; (ii) three weeks following the occurrence of the event. Therefore, it shall lawfully result in the termination of the contract as the parties shall be released from their obligations under the conditions stipulated in Articles 1351 and 1351-1 of the French Civil Code.
CONFIDENTIALITY – INTELLECTUAL PROPERTY
Unless otherwise stipulated, all documents transmitted by INNOV’IA and Subsidiaries to the CUSTOMER, including the technical documents, shall be confidential and the CUSTOMER undertakes to keep the information that they contain in strict confidence.
Whenever the CUSTOMER transmits formulas and/or recipes and/or operating procedures for the performance of the services by INNOV’IA and Subsidiaries, it shall remain the owner and retain liability for the intellectual property rights in said formulas and/or recipes and/or operating procedures and the products arising therefrom. The CUSTOMER must ensure and warrants that the disclosure of said information does not breach nondisclosure commitments or the rights held by third parties in said information. Under no circumstances shall INNOV’IA and Subsidiaries be considered as an infringer due to application of the formulas and/or recipes and/or operating procedures transmitted by the CUSTOMER.
In particular, the CUSTOMER warrants that (i) it is the sole owner of all the rights in the intellectual property or, as regards the rights in intellectual property of which it is not the holder, that it holds a valid licence for their use; (ii) no prior right is likely to result in the full or partial nullity of the intellectual property rights; (iii) to its knowledge, no claim has been made in relation to these intellectual property rights; (iv) the employment contracts entered into with its employee stipulate, as applicable, that the CUSTOMER shall own all creations or inventions of its employees and that no action asserting a right or to obtain compensation has been instituted or threatened to be instituted by an (ex)employee of the CUSTOMER.
Failing this, the CUSTOMER undertakes to be personally responsible for and shall hold INNOV’IA and Subsidiaries harmless, upon their first request, from any claim or other complaint as well as all related expenses, to which INNOV’IA and Subsidiaries would be subject in relation to the CUSTOMER’s rights in the intellectual property mentioned in this clause.
Likewise, INNOV’IA and Subsidiaries shall not grant any right or patent in the intellectual property due to the disclosure of technical data, parameters, diagrams, drawings and shall retain all the intellectual property and know-how associated in particular with the tools, sequences or processes that it implements. The full or partial payment by the CUSTOMER of the costs of the tooling shall not result in the transfer of ownership of the tooling or the transfer of the associated intellectual property and know-how.
APPLICABLE LAW AND ALLOCATION OF JURISDICTION
These General Terms and Conditions of Sale and all the contractual transactions that they govern between INNOVI’A and Subsidiaries and the CUSTOMER, including any order or contract, shall be governed by French law, excluding the rules of conflicts of laws.
Any dispute between INNOVI’A and Subsidiaries and the CUSTOMER which cannot be amicably settled, in relation to the interpretation or the performance of their respective obligations, shall be brought before the courts having jurisdiction over the place of INNOV’IA and Subsidiaries registered office which shall have sole jurisdiction even in the event of summary proceedings, multiple defendants and warranty claims.
NO WAIVER – SEVERABILITY
The fact that INNOV’IA and Subsidiaries does not exercise at any time a right or entitlement acknowledged by these General Terms and Conditions of Sale, or does not demand the fulfilment of any stipulation of said Terms and Conditions shall not be construed as an express or tacit waiver to the right for INNOV’IA and Subsidiaries to avail themselves thereof in the future or the right to demand strict fulfilment of the undertakings made hereunder.
Should any provision of these General Terms and Conditions of Sale be declared invalid by a court, administration or authority, the validity of the other provisions of these General Terms and Conditions of Sale shall in no way be affected.