Article 1 – Validity / Scope. These General Terms and Conditions shall apply to Berth Operational Management, control, inspection, expert assessment, analysis, storage and transit operations performed by “TEMS” in the following sectors: Oil, Chemicals, Petrochemicals, Food Processing, Raw Materials, Scrap Metal and all other recycling products, Consumer Goods, Fumigation & Sanitation, Storage Terminals, and Transit. These terms and conditions shall govern all orders placed with “TEMS”, with the exception of orders relating to quantity surveying for guaranteed-weight supplies. Any exemptions to these General Terms and Conditions shall be arrived at by mutual agreement between “TEMS” and its customer. Such exemptions must be expressly stated in the order in question and accepted in writing by “TEMS”. The client shall not be entitled to claim entitlement to such exemptions in connection with any other order.
Article 2 – Order. The contractual terms and conditions relating to technical standards and regulations shall be as defined in the order, and in any documents appended thereto and/or documents to which the order makes reference. Subject to the acceptance of the corresponding provisions and/or in the absence of any such references, only those references used by “TEMS” shall be used to determine the limitation of the work performed by “TEMS”. Unless specified otherwise in writing by the client, all tests and/or analyses shall be conducted in accordance with applicable standards or, where applicable, our in-house procedures, such procedures reflecting industry-standard practices (where such practices exist). Where formal standards are applicable, the laboratory shall use the latest applicable version thereof, as published no more than 9 months prior to such tests and/or analyses, and in the absence of any other specific requirement. In the event that our services are used by two or more different clients, and where such clients issue different or contradictory instructions, “TEMS” reserves the right to use the instructions provided by the first client to issue such instructions, to the exclusion of all others. All reports and certificates issued by “TEMS” shall be provided for the exclusive use of our clients, and shall only provide the specific information requested by the client(s) in question. “TEMS” reserves the right to subcontract all or part of the services covered by the order to any person of its choosing, subject to the client’s prior consent.
Article 3 – Lead time. The lead times may be specified in the order, and may be expressed in hours or working days. In any event, “TEMS” shall only commit to such lead times in the event that the client fulfils its own obligations. Failing that, “TEMS” may not be held liable for the consequences thereof. Such provision shall apply in the following cases in particular:
The lead time shall be extended, as of right, in the event of a delay not attributable to “TEMS”, or as a result of any event beyond the control of “TEMS”, where all or part of the services cannot be performed as a result of such delay or event, pursuant to the section of these General Terms and Conditions of Sale concerning “event beyond control”. The customer shall bear all additional costs and charges incurred as a result of a delay not attributable to “TEMS”. Unless specified otherwise in the order, any delay attributable to “TEMS” shall not constitute sufficient grounds to terminate the order.
Article 4 – Price and payment terms. All services performed by “TEMS” shall be billed at the price mentioned in the quote, or according to the price list in force on the date on which the order was placed. The prices shall be set according to the information supplied by the client, and on the basis of normal service performance conditions. Any modification to the purpose or scope of the service, or to the performance conditions thereof, shall result in an additional charge and a prior, written agreement between the parties. Payment shall be due for all services performed by “TEMS”. All services shall be billed in full upon completion, except for services lasting an excess of one month, for which an interim invoice shall be issued. Payment shall be due 30 days end of month from the invoice date, to “TEMS”, without discount. Where the client fails to pay any amount appearing on the invoice by the due date:
Article 5 – Transport of clients’ products and equipment. The client shall cover all transport, insurance and packaging costs associated with any shipment or re-shipment. The client shall bear all risks associated with the transport or products and equipment. Under no circumstances may “TEMS” be held liable for the damage or loss of products and equipment occurring during transport. All hazardous or polluting products and equipment must be shipped, by the client, in suitable packaging, such that no harm is caused to the safety, security, hygiene or protection of persons and the environment. Failing that, “TEMS” reserves the right to reject the delivered sample, to take all necessary safeguarding measures, and/or to refuse to perform the agreed service. The recipient shall be responsible for checking the condition of the products and equipment received. In the event of any problem (damaged or missing contents), the recipient must notify the shipper (precise, clear and comprehensive information) by registered letter with acknowledgement of receipt, within 5 days of receipt of the delivery. Failing that, no claim shall be admissible.
a)- Samples: constitution and representativeness. The shipper shall take all necessary precautions to avoid contamination of the samples. The analysis results shall be representative of the sample as received by “TEMS”.
b)- Safety. Clients shall notify “TEMS”, in writing, of any hazards posed by the products submitted for analysis. The samples shall bear the relevant statutory markings.
c)- Retention of samples and equipment submitted for testing. Where applicable, the remains of any products or equipment subject to destructive testing shall be retained in the oil sample bank for 90 days following issue of the results. The remains of any perishable products shall be destroyed immediately and a corresponding invoice shall be issued.
d)- Equipment provision. Where equipment belonging to “TEMS” is provided to a client, such equipment shall be considered under the client’s care, and the client shall be liable in the event that such equipment is stolen, destroyed or damaged. Provision shall be considered to have taken place at the point at which the equipment is shipped or installed at the client’s premises.
e)- Communication and use of the results of the services. The results of the services performed by “TEMS” shall be issued on letter-headed paper bearing the name of “TEMS”. Any documents produced by “TEMS” may only be reproduced in full, and must be clearly designated as a “reproduction”. Any other reference to the services provided by “TEMS”, in whatever form, may only be made with the written consent of “TEMS”. Where the results communicated by “TEMS” are used without consent, or where unauthorised reference is made to its work, “TEMS” may take legal action pursuant to applicable laws and regulations.
Article 6 – Non-disclosure and confidentiality. “TEMS” hereby undertakes, to the extent permitted by domestic and European law, not to disclose the information to which it has access, and the results of its analyses or observations, to any third party whatsoever. Pursuant to the foregoing, “TEMS” shall demand loyal collaboration from its employees. It shall require its employees to sign a confidentiality agreement, where such employees are required to access trade secrets, specific knowledge or information concerning particularly sensitive domains, or where the client makes a specific request for such agreement. Furthermore, “TEMS” employees shall be required to comply with strict non-disclosure obligations in connection with any work performed under ministerial accreditation, as required by law. Other than mentioning the tasks that it performs for commercial reference purposes, “TEMS” shall refrain from disclosing any specific information about its clients to any third party, without such client’s express consent. “TEMS” shall process the data that it collects in the course of its work for client management purposes. The recipients of such data shall be “TEMS” employees with specific permission to access these data. Pursuant to the French Data Protection Act of 6 January 1978, clients have the right to access and correct their personal information.
Article 7 – Guarantee and liability. “TEMS” shall act as a service provider, and its liability shall be limited to a best efforts obligation. Where the client has suffered demonstrable harm, any compensation payable by “TEMS” by virtue of its liability in connection therewith shall be limited, in any event, to the tax-exclusive value of the order concerned. The client hereby waives any further recourse against “TEMS” in this respect, and undertakes to obtain a similar waiver from its insurers. Any harm incurred by the parties’ employees shall remain the liability of the employers in question. These provisions shall be without prejudice to any rights or appeals due to the victims of the accidents, their heirs and assigns, or the social security authority. Where the client wishes to make a complaint against “TEMS” in connection with the performance of the order, such complaint must be addressed to “TEMS”, by registered letter with acknowledgement of receipt, no later than 30 days following the date on which the results of the services were issued.
Article 8 – Insurance. Each party shall take out the necessary insurance policies, of sufficient value, to cover its public liability as arising from the performance of its respective obligations.
Article 9 – Termination. ‘’TEMS” shall be entitled to terminate the contractual relationship, via written notification to the client, in the following circumstances:
Article 10 – Non-waiver. Where “TEMS” fails to enforce any of the provisions of these General Terms and Conditions or of the Special Terms and Conditions, such action may not, under any circumstances, be interpreted by the client as a waiver by “TEMS” of its right to enforce such provision(s) in the future.
Article 11 – Jurisdiction. The relationship between “TEMS” and the client shall be governed by French law. Where a dispute should arise in connection with the conclusion, interpretation or performance of the contractual obligations, the parties shall seek to reach an amicable resolution thereto. Failing that, such dispute shall fall under the exclusive jurisdiction of the Commercial Courts of Le Havre, even in the case of multiple defendants or a third-party complaint.
Article 12 – Results and reports.
12.1 Provisional results.
The provisional results submitted prior to the report shall be provided for information purposes only, and “TEMS” may not be held liable in connection therewith. Under no circumstances may such provisional results be interpreted as a substitution for the report. The report shall cancel and replace such provisional results.
12.2 Measurement uncertainties.
In the absence of a written request from the client, and unless stipulated otherwise in a reference text explicitly applicable to the contract, information regarding uncertainties shall not be provided with the results. Where the measurement results are compared with statutory limit values for compliance assessment purposes, information regarding uncertainties shall be provided, but shall not be taken into account unless specifically requested, in writing, by the client or stipulated in a reference text explicitly applicable to the contract.