Last updated on 13 June 2022
These General Terms and Conditions of Purchase of Goods and Services (“General Terms and Conditions”) apply to any purchase made by NEWEN and its subsidiaries (hereinafter referred to as “NEWEN”), including purchases of services.
1. NEWEN Order Process
NEWEN may order, plan to order or order goods and/or services from you or your company as a supplier (“Supplier”). For all orders, the following Order Process will apply:
1) Offer: the Supplier sends NEWEN a detailed description of its goods and/or services (“Offer”).
2) Provisional order: on the basis of the Supplier’s Offer, NEWEN sends the Supplier (or its agent/representative) a written, voidable request to supply goods and/or services (“Order”) stating any additional or supplementary needs.
3) Time limit for refusal of the Order by the Supplier: The Supplier may refuse the Order in writing within 3 days from the date of the Order. If NEWEN does not receive a refusal within the required time limit or if the Supplier confirms the Order, a contract will be deemed concluded (“Purchase Contract”), subject to NEWEN’s authorisation as part of the Payment Process.
4) Delivery of Order: the Supplier delivers and/or performs the Order under the conditions set out in Article 3.
2. NEWEN Payment Process
Any payment made by NEWEN is subject to authorisation according to the following Payment Process:
1) Internal authorisation: NEWEN implements the internal authorisation procedure for the Order when Creation of the Supplier Account is approved. In the event of approval, a purchase order number is created (“PO Number”). In the absence of approval, for whatever reason, NEWEN is not under any obligation to pay.
2) Supplier Invoice: the Supplier invoices NEWEN (under the conditions of Article 7) following NEWEN’s acceptance of the delivered/performed Order, unless otherwise agreed in writing.
3) Payment at 60 days: NEWEN pays the Order within 60 days from receipt of the Supplier’s invoice (referencing the PO Number), unless otherwise agreed in writing.
Orders may only be amended in writing. Any price increase linked to amendment of an Order is subject to new approval, under the NEWEN Payment Process.
3. Performance of the Order
The Supplier provides the Order according to the specifications contained in the Order and in the Supplier’s Offer (together, the “Specifications”). The Supplier must immediately inform NEWEN in writing of any problems encountered, in particular any delay, fault and/or defect. The Supplier must also immediately inform NEWEN in writing of any irregularity or imprecision in the instructions provided by NEWEN or other information, in particular the Specifications.
The Supplier will deliver and/or perform the Order in the place and on the date or during the period (at the end of which ownership of the goods is transferred to NEWEN) agreed between the parties in writing. Unless otherwise stated and/or a date is specified, the Order will be delivered and/or performed at NEWEN’s head office as soon as it is approved, under NEWEN’s Payment Process. The Supplier will pay all costs, including taxes, levies and insurance related to the delivery/performance of the Order.
NEWEN may refuse the delivery/performance of the Order or request that it is delivered/performed again at cost to the Supplier if the goods and/or services do not comply with Article 5. Payment of the Order does not in any case constitute acceptance thereof.
The Supplier waives all rights to suspend performance of the Order.
4. Personnel and sub-contracting
If NEWEN considers that the use of some members of staff is not desirable, the Supplier will replace the said personnel on request from NEWEN.
The Supplier will send NEWEN, on its request, a breakdown of the time spent (man-hours) providing the services.
The Supplier will be responsible, at its own cost, for all the expenses related to people employed by the Supplier to provide the services that are the subject of the Order (in particular all taxes and social security), unless otherwise agreed in writing. The Supplier will compensate NEWEN and hold it harmless against all costs that it might incur in this respect.
The Supplier must not in any case sub-contract or entrust performance of all or part of its obligations under a Purchase Contract to any third party without NEWEN’s written consent.
5. Compliance and warranties
The Supplier issues the following representations and warranties in respect of the delivered goods and/or services provided, as a minimum:
i) that the goods and/or services comply with the Specifications;
ii) that the goods and/or services comply with and do not violate the law or the applicable legislation at the time of delivery/performance, such as the legislation on media services, advertising and data protection, and the legislation on consumer protection and intellectual property rights;
iii) that the Supplier has all the administrative and commercial authorisations, permits and licences necessary to provide the goods and/or services that are the subject of the Order, in particular in terms of NEWEN’s use of the said goods and/or services. In respect of Article 4 above, the Supplier guarantees that it will comply with the applicable legislation on employment including the fight against undeclared work and stay up to date with its social security and tax obligations / contributions. The Supplier undertakes to provide NEWEN with any document attesting to its situation without delay as soon as NEWEN requests it, so that NEWEN can comply with its obligation of vigilance;
iv) that the goods are suitable and compliant with the use planned by NEWEN and that the quality, materials and manufacture are satisfactory and free of any defect;
v) that the services are provided with all the care, competence and diligence expected in the sector, by people with all the required qualifications and experience;
vi) that the Supplier is not economically dependent on NEWEN. The Supplier undertakes to inform NEWEN if its orders come to represent a portion of the Supplier’s turnover that might place it in a situation of economic dependency in the meaning of positive law, and any event that might change this situation. Where applicable, the Supplier and NEWEN will meet to find a solution that protects their respective interests. The Supplier acknowledges that, in all cases, for the duration of the Purchase Contract, it retains sole liability in the event of insufficient diversification of its client portfolio; and
vii) that it complies with a socially responsible approach and ethical business conduct, in accordance with the applicable laws and regulations (in particular the principles of the UN Global Compact), respect for human rights, international standards on labour, environment and anti-corruption.
6. Ethics
6.1. A socially responsible approach and an ethical business conduct in accordance with applicable laws and regulations (including the principles of the United Nations Global Compact), the respect of Human rights, international labour standards, environment and all applicable anti-corruption regulation, are fundamental principles for the Newen Group.
For the execution of the Purchase Contract, the Supplier shall enforce all applicable rules related to the fight against fraud, corruption, bribery and illegal cartel, including but not limited to 2016-1691 French Law dated September 9, 2016 (Loi Sapin II) and all international anti-corruption and anti-money laundering conventions; the Supplier certifies that he has not, nor any other person acting on its behalf has, directly or indirectly, offered, solicited or accepted (or will offer, solicit or accept), any payment, advantage or benefit, from any person (public or private), in order to influence an act or a decision.
The Supplier acknowledges that it has read and understood the Newen Group’s values and commitments, reachable on Newen’s website at the following link https://www.studiotf1.com/code-of-ethics, which shall guide the execution of this Agreement.
6.2 The Supplier certifies and warrant that, for the performance of the Purchase Contract, neither it, nor its officers, employees, partners or shareholders, beneficial owners, intermediaries, nor any person acting on its behalf:
– Is listed on an asset freeze register published by the United Nations, France, the European Union, the United States, the United Kingdom, Switzerland, etc., or on any sanctions list published by any of these countries or organizations, excluding sanctions programs covered by the annex to Regulation (EC) No. 2271/96 of November 22, 1996,
– Has any agreement or business relationship with any person or entity on any sanctions list published by the United Nations, France, the European Union, the United States, the United Kingdom, Switzerland, etc., excluding sanctions programs covered by the Annex to Regulation (EC) No 2271/96 of November 22, 1996,
– Is engaged in transactions in a sector sanctioned under any UN, EU, US, UK, Swiss, etc. regulations, excluding the sanctions programs covered by the Annex to Regulation (EC) No 2271/96 of 22 November 1996.
Failure to meet this warranty will result in a suspension/termination right for NEWEN, and where applicable, NEWEN shall be reimbursed for the payments done while the Supplier was in breach of the foregoing warranty, and this without prejudice to any damages that may be requested by NEWEN in compensation for its damage.
7. Price, invoicing and payment
The price of the Order will be invoiced in euros and must include all the fees/licence fees, taxes, excise, charges and costs, both direct and indirect.
The invoices must include the Supplier’s reference number, the description of the Order, the PO Number and state the VAT (where applicable).
Any Purchase Contract is entered into on the understanding that the Order must be approved internally under the NEWEN Payment Process (as set out in Article 1.2). The Supplier acknowledges that any performance of the Order prior to actual authorisation will be done at its own cost and risk.
In the event of payment delay by NEWEN (under Article 2.3), the applicable interest rate may not be higher than the amount set out in French legislation.
From the sums it owes to the Supplier, NEWEN may deduct any sum that the Supplier might owe to NEWEN (for any reason whatsoever, whether the said sum is due for payment or not).
8. Termination
At any time, NEWEN may terminate and/or cancel all or part of the Order at no cost, subject to written notification, if:
i) the Supplier fails to comply with the terms and conditions of the Purchase Contract;
ii) the Supplier ceases its business activity (or intends to cease its activity);
iii) the Supplier declares suspension of payments;
iv) the Supplier applies for court-ordered liquidation;
v) the Supplier applies for restructuring of its debt.
If the Supplier breaches its commitments, NEWEN may, without any other formal notice or legal intervention:
i) suspend all its obligations under the Purchase Contract until the Supplier has remedied the breach, or
ii) terminate all or part of the Purchase Contract.
9. Intellectual Property
All the rights, titles and interests relating to the results of the Order, in particular all intellectual property rights (including but not limited to reproduction, representation and adaptation rights), know-how, data objects and software (“Results”) are acquired by NEWEN. The Supplier must assign all the Results that are not acquired by NEWEN under the law and/or this clause, in their widest form and application, including any application that becomes known or might become possible in the future. The Supplier hereby grants to NEWEN the right to do anything that NEWEN considers necessary – including without restriction entering into all agreements or deeds – on behalf of the Supplier, where NEWEN considers this necessary to assign the said results. If the Results are acquired by the Supplier, the Supplier hereby grants a perpetual licence to NEWEN – with the exception of Results for which the licence is limited to the maximum duration set out in the French Intellectual Property Code – that is global, exclusive, irrevocable, free of charge and transferable, in order to use the Results.
The Supplier shall have no right to use NEWEN’s intellectual property (in particular trademarks) outside the performance of the Purchase Contract. All of NEWEN’s intellectual property rights shall remain the exclusive property of NEWEN, even if the Supplier exploits them in the context of the performance of the Purchase Contract.
The Supplier must obtain from any entity (such as right holders or collective rights management companies) the necessary licences to supply the goods and/or services that are the subject of the Order, in particular in terms of use of the said goods and/or services by NEWEN, and the Supplier will be responsible for all costs relating to these licences.
The Supplier will not proceed with any registrations (in particular intellectual property or domain names) in its own name or in the name of a third party relating to the Results or to NEWEN’s activities, without express consent from NEWEN. The Supplier is prohibited from performing any act or omission that might harm the Results and/or any other intellectual property rights, know-how or elements belonging to NEWEN, or reducing the value thereof.
10. Confidentiality
The Supplier must protect the confidentiality of all the information relating to NEWEN’s operations and all information obtained under the Order that might reasonably be considered by NEWEN to be confidential information. The Supplier must only use the said information for the necessary purposes of performing the Order. This obligation of confidentiality and restricted use does not apply to information concerning which the Supplier can prove, with evidence:
i) that it was already in the Supplier’s possession or in the public domain before NEWEN’s Order Process began;
ii) that it entered the public domain after NEWEN’s Order Process began, by publication or otherwise, without the Supplier being responsible;
iii) that the Supplier received it from a third party, after NEWEN’s Order Process began, without the latter obtaining it directly or indirectly from the Supplier; or
iv) that it was developed independently, after NEWEN’s Order Process began, by the Supplier’s employees who were not involved in performing the Order.
The Supplier must immediately return all the documents and elements provided under the Order, on request from NEWEN.
11. Protection of Personal Data
The parties undertake to process the personal data that may be shared between them in accordance with the applicable law on data protection, and undertake to comply with all the principles and obligations applicable to data controllers, as set out in Regulation 2016/679/EU of 27 April 2016 on data protection (“GDPR”) and the French Data Protection Act (Loi Informatique et Libertés) No. 78-17 of 6 January 1978, as amended (“LIL”) in its current version. The use of data is strictly limited to the sole, unique purposes of performing the Purchase Contract. The Supplier is therefore prohibited from disclosing this data to third parties, for any reason whatsoever, the Supplier holding NEWEN harmless against any recourse in this regard, without prejudice to any damages that NEWEN might claim as a result of such a breach.
If the service ordered by NEWEN and performed by the Supplier under the Order involves processing of personal data by the Supplier on behalf of NEWEN, the Supplier hereby agrees to enter into a written data processing agreement with NEWEN, in accordance with Article 28 of the GDPR, as soon as NEWEN requests it.
It is understood between the Parties that, in the event of breach of personal data or any other incident likely to compromise the security of personal data shared between them (such as loss, damage or destruction of data both in electronic or printed format, unauthorised access by a third party to personal data or any other breach of personal data), including but not limited to any breach or other incident resulting from the conduct of sub-contractors, where applicable, the parties will cooperate together to minimise the risks related to such a breach or incident and to remedy the said breach or incident as soon as possible.
12. Liability
The Supplier delivers and/or performs the Order at its sole, entire risk. Except in the case of non-attributable breach (force majeure), the Supplier is solely liable for all the direct or indirect losses suffered by NEWEN or third parties with regard to supply of the goods and/or services that are the subject of the Order. The following are not considered to be non-attributable breach: lack of personnel, strikes, personnel absences due to illness, delivery delays and/or inadequacy of materials, raw materials or semi-finished products, a breach or unlawful act committed by third parties hired by the Supplier and/or difficulties related to the Supplier’s cashflow and solvency. In all cases, the Supplier will compensate NEWEN and hold it harmless against any claim concerning any infringement of intellectual property rights and related third party rights, in particular moral rights.
In all cases, NEWEN’s liability is limited to direct loss caused by serious misconduct or gross misconduct committed by NEWEN. NEWEN may not be held liable for indirect loss of any kind, legal theory or qualification (contractual, criminal, restitution, unjust enrichment or any other grounds for compensation of loss), including, without restriction, any operating loss, loss of turnover or profits, harm to image or any intangible loss.
13. Miscellaneous
These General Terms and Conditions are an integral part of the Purchase Contract.
Any amendment of these General Terms and Conditions or the conditions under which the parties perform the Purchase Contract must, for validity purposes, be referred to in the Order and signed by each party. In the event of dispute between the Purchase Contract and these terms and conditions, the General Terms and Conditions shall prevail, unless the contravening stipulation in the Purchase Contract is the subject of a written agreement signed by each party, in which case the Purchase Contract shall prevail. In the event of dispute between the Supplier’s specifications and the Order, the Order shall prevail.
Any clause in these General Terms and Conditions which, by its nature, is intended to remain applicable after the end of the Purchase Contract, will survive termination thereof and will be binding on the parties, their successors and their assignees. These clauses include without restriction Articles 5 (Compliance and warranties), 8 (Termination), 9 (Intellectual Property) and 10 (Confidentiality).
These General Terms and Conditions and any Purchase Contract are governed by French law. Any dispute between the parties relating to an Order shall be referred to the courts of Paris (France). In addition, NEWEN may bring legal action against the Supplier, at the same time or not, before any other competent jurisdiction, to have the dispute considered under the rules of national or international law.