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Terms and conditions

GENERAL TERMS AND CONDITIONS FOR RESEARCH AND DELIVERY INSTRUCTIONS GIVEN TO BIOCLEAR B.V.

These General Terms and Conditions have been adopted by Bioclear and are filed with the Chamber of Commerce and Industry in Groningen, the Netherlands, under number 02044410.

Article 1 Definitions

1.1 In these General Terms and Conditions, the following terms must be deemed to have the following meanings, unless the contrary is explicitly indicated.

1.2 Bioclear: the legal entity “Bioclear B.V.”, a private limited liability company, having its registered office in Groningen.

1.3 The Client: a natural person, legal entity or a number of jointly acting persons and/or entities instructing Bioclear to perform work for him/her/it/them and/or a party concluding an Agreement with Bioclear;

1.4 Instruction or Agreement: that which has been agreed upon, pursuant to which Bioclear has undertaken vis-à-vis the Client to perform the work as instructed by that party, subject to these General Terms and Conditions.

1.5 Project: the business to which Bioclear’s involvement pursuant to the Instruction pertains.

Article 2 General

2.1 These General Terms and Conditions will apply to each Instruction and Agreement between Bioclear and a Client to which Bioclear has declared these General Terms and Conditions applicable, to the extent that the parties have not laid down explicit provisions to the contrary in writing.

2.2 These General Terms and Conditions will also apply to all Agreements concluded by Bioclear, with respect to the performance of which Bioclear engages the services of third parties.

2.3 Any deviations from these General Terms and Conditions will only apply in the event that such have explicitly been agreed upon in writing.

2.4 Applicability of any other terms and conditions of the Client or third parties is hereby explicitly rejected.

2.5 In the event that one or more provisions of these General Terms and Conditions are null and void or nullified, all other provisions of these General Terms and Conditions will remain in full force and effect. In that event, Bioclear and the Client will agree on new provisions to replace the null or nullified provisions, taking the object and purport of the original provision into account.

Article 3 Applicable law

3.1 Instructions and Agreements will be governed by Dutch law, irrespective of where the actual performance of the Instruction [or Agreement] takes place.

Article 4 Specification of Instruction

4.1 An Instruction will include all that which was agreed upon by the Client and Bioclear and will state the project as well as the nature and the scope of the work for which Bioclear has been engaged.

4.2 An Instruction must furthermore contain:

  • a specification of the costs
  • the manner of payment and the payment schedule
  • the time span within which the Instruction must be performed
  • the form of the final results of the Instruction (written advice, report, etc.)

4.3 An Agreement providing for the performance of work pursuant to an Instruction must be deemed to be concluded on the basis of written confirmation from the Client of that which was agreed upon. An electronic confirmation (eg. Email), only in the event of clearly stated acceptance of both price and terms and conditions.

4.4 In the event that notice of acceptance from the Client contains different information than the offer of Bioclear, such will not be binding on Bioclear. In that event, no agreement will be concluded in accordance with the deviating notice of acceptance, unless the contrary is indicated by Bioclear.

4.5 Any amendments of, supplements to and expansions of the – scope of the – Instruction, or any deviations from these General Terms and Conditions, will only be binding after such have been agreed upon by the parties in writing.

4.6 Any research proposal, as well as any proposals for amendment or expansion of an Instruction, will be submitted on the condition that the expertise and ideas of Bioclear set forth therein may only be used by the Client to come to a decision on Bioclear’s proposals. This Article will also apply to Instructions given to Bioclear to submit research proposals.

4.7 Unless provisions to the contrary have been explicitly agreed upon, investigations into the existence of patent rights of third parties and/or the possibility of patenting will not be part of the Instruction.

Article 5 Performance of the Instruction, the results

5.1 The Instruction will be performed within a period of time agreed upon with the Client, notwithstanding circumstances not reasonably attributable to Bioclear. In the event that that period of time threatens to be exceeded, Bioclear will consult with the Client in this connection in the shortest possible term.

5.2 Bioclear shall perform the Instruction properly and with due care, promote the Client’s interests to the best of its ability and perform its services to the best of its knowledge and ability. Bioclear shall avoid everything which may affect the independence of its advice. In the performance of the Instruction, Bioclear may not derive any advantages unknown to the Client from the application of its findings.

5.3 In the event that an Instruction involves – inter alia – the inspection of samples, the Client will bear the exclusive responsibility for the selection, the representativeness, the affixing of codes, brand names and trade names and for making the relevant samples available to Bioclear.

5.4 Unless provisions to the contrary are agreed upon simultaneously with or possibly after the Instruction being given, Bioclear will not be obliged to commence its work pursuant to the Instruction until the Client has actually made available to Bioclear all substances and materials to be made available to it in the form and numbers agreed upon. Any ensuing delays will cause an extension of the period of time set forth in Article 5.1.

5.5 Bioclear shall inform the Client of the financial consequences and risks related to different or additional requirements, any postponement or amendment of decisions or the occurrence of circumstances not taken into account in the conclusion of the Agreement in good time. This arrangement providing for the provision of information is not intended to provide for attribution.

Article 6 Secrecy

6.1 In the event that such has been agreed on upon the Instruction being given, Bioclear undertakes to observe secrecy regarding the Client’s name and the fact that the research has been conducted for a period of time which will, in principle, end two years after the date of the final invoice.

6.2 An obligation of secrecy on Bioclear’s part will apply to any information from the Client of which Bioclear has taken cognisance during the performance of the Instruction and which has been explicitly qualified by the Client as secret. This obligation of secrecy will not apply:

  • to information already in Bioclear’s possession at the time that Bioclear was informed of such
  • to information which was or became generally available in the public domain, without this being caused by any failure on Bioclear’s part
  • to information lawfully acquired by Bioclear from a third party, or from its own research, without in any manner using any secret information

6.3 In the event that any misunderstandings occur pursuant to the publication of the results by the Client, this circumstance will release Bioclear from the obligation of secrecy to the extent reasonably necessary for Bioclear to provide an explanation of the results to third parties.

Article 7 Entitlement to results

7.1 The Client will have full and free access to all information related to the Instruction as provided by Bioclear to the Client. During the period that Bioclear is bound to secrecy pursuant to Article 6.1, this right of the Client will be exclusive, subject to the provisions of Articles 7.2 and 7.4. Any micro-organisms isolated and obtained by Bioclear during a research Instruction will remain the property of Bioclear, unless Agreements to the contrary were made with the Client in the offer.

7.2 After the period during which Bioclear is obliged to observe secrecy pursuant to Article 6.1, Bioclear will be entitled to use the results referred to in Article 7.1 for the benefit of third parties, or to have third parties use such.

7.3 Bioclear will be entitled to use the following for its own benefit and for the benefit of third parties or have third parties use such:

the expertise and experience present at Bioclear upon the acceptance of the Instruction;the expertise and experience outside the area of the Instruction acquired during the performance of the Instruction; andcalculation methods, software and experimental working methods created or developed during the performance of the Instruction, to the extent that the development of such was not the direct object of the Instruction.

7.4 Any reports, drawings and other corporeal objects – other than micro-organisms – resulting from the work pursuant to the Instruction in accordance with Article 4.1 will be the property of the Client, subject to any copyrights held by Bioclear and on the condition that the Client has fulfilled its financial obligations vis-à-vis Bioclear.

Article 8 Disclosure

8.1 Without the prior written consent of Bioclear, the Client will not be permitted:

to publish a report issued by Bioclear in whole or in part or to disclose such in another manner, for instance by placing such on the Internet; the term “disclosure” must be deemed to mean, inter alia, making such available for inspection by parties other than directly interested parties;to allow a report issued by Bioclear to be used in whole or in part for the instituting of claims or legal proceedings, for advertising or negative publicity for advertising purposes in a more general sense of the word; orto use the name of Bioclear, in whatever connection, upon the publication of a part or parts of the report issued by Bioclear and/or for one or more of the ends mentioned in sub-paragraph b.

Article 9 Protection of expertise

9.1 To the extent that the performance of the Instruction by Bioclear leads to any patentable results, the Client will be entitled to apply for a patent in its name and for its own account, unless the discovery or invention produces an industrial result which was not intended upon the Instruction being given, all this on the condition that the Client has fulfilled its financial obligations vis-à-vis Bioclear.

9.2 The Client and Bioclear shall reciprocally notify each other of:

any suspicion that patentable material has been discovered;the fact that a patent application has been filed; andthe content of such obligation.

In addition, they shall reciprocally extend all required cooperation with respect to the filing of the patent application.

9.3 In the event that the Client has not informed Bioclear in writing within three months of the notification referred to in Article 9.2 that it intends to exercise its right as referred to in Article 9.1, this right will be vested in Bioclear. In that event, Bioclear shall observe its obligation of secrecy ensuing from Article 6, on the understanding that it may provide the relevant patent office with all information required for the patent application.

9.4 In the event that the Client or Bioclear exercises its rights ensuing from Article 9.1 or Article 9.3, as the case may be, the applicant/patent holder shall provide the other party, provided that the other submits a request to that effect within six months of the date of the patent application, with a transferable licence for no consideration, on the basis of which that party may derive the rights identical to those set forth in Article 7.

Article 10 Price and payment

10.1 The costs of the project will amount to:

the price of the work performed by Bioclear; andthe costs incurred, including the costs of third parties.

10.2 The amount of the price referred to in Article 10.1(a) will be fixed on the basis of one of the following criteria:

the amount of time spent on the Instruction;an amount fixed for the entire Instruction or per unit of work; oranother satisfactory basis for payment.

At the request of the Client, a maximum amount may be agreed upon.

10.3 The costs referred to in Article 10.1(b) will be chargeable on the basis of one of the following criteria:

costs actually incurred;an amount to be fixed; oranother satisfactory basis for compensation.

10.4 Unless stated otherwise, all amounts stated by Bioclear in that which was agreed upon are exclusive of turnover tax.

10.5 Bioclear reserves the right to send invoices at regular intervals. Bioclear may furthermore demand advance payments.

10.6 The Client will be obliged to effect payment of the invoices in euros within 30 days of the invoice date. If payment has not taken place within the said period of time, the Client will be in default by operation of law and, commencing 30 days after the invoice date, will owe the statutory interest with respect to the outstanding amount. In addition, any and all judicial and extra-judicial costs to be incurred as a consequence will be borne by the Client.

Article 11 Liability

11.1 Bioclear will be liable for any direct damage incurred by the Client due to a breach of contract on Bioclear’s part, though subject to a maximum amount equal to the price payable by the Client with respect to the Instruction pursuant to Article 10.1.

11.2 Bioclear and/or any persons used or engaged by it in the performance of the Instruction will not be liable for any damage incurred by the Client pursuant to the application or use of the results of Bioclear’s work.

11.3 The Client indemnifies Bioclear and any persons used or engaged by it in the performance of the Instruction against any and all claims of third parties arising from damage incurred by such third parties pursuant to the application or use of the results of Bioclear’s work by the Client or another party to which the Client has made the results available, except in the case of an intentional act or omission or gross negligence on the part of Bioclear or any persons used or engaged by it in the performance of the Instruction.

11.4 In the event that persons used or engaged by Bioclear in the performance of the Instruction are present on the site of the Client and/or of third parties, Bioclear and/or any persons used or engaged by it in the performance of the Instruction will not be bound to stipulations set forth in access forms etc., providing for a complete or partial restriction of the Client’s liability ensuing from the Agreement.

11.5 Bioclear will not accept any liability for damage as a consequence of any defects in items supplied to Bioclear and passed on by Bioclear to the Client, unless and to the extent that the Client may hold that supplier liable.

11.6 In the event that one of the parties does not fulfil one or more essential obligations ensuing from the Agreement, the other party will send the defaulting party a written notice and will grant the defaulting party a reasonable period of time to fulfil its obligations as yet. In the event that the defaulting party fails to fulfil its obligations during the period of time granted as well, all rights ensuing from the relevant Agreement will lapse and the other party will no longer be obliged to fulfil any obligation resting with it.

11.7 Any claims of the Client vis-à-vis Bioclear pursuant or related to the performance of a certain Instruction by Bioclear and/or any persons used or engaged by it in the performance of the Instruction will fully lapse if Bioclear has not been notified of such claims in writing within one year of the date of the final invoice, unless the Client demonstrates that it was unable to comply with this notification requirement within the said period of time.

Article 12 Premature termination of the Instruction by the Client

12.1 The Client will also be obliged to fully respect Bioclear’s copyrights in accordance with the provisions of Article 7.4 in the event of premature termination of the Instruction.

12.2 In the event of premature termination of the Instruction as referred to in Article 12.1, the Client will be obliged to pay Bioclear:

  • the price of the work completed
  • the costs incurred
  • the costs ensuing from any obligations vis-à-vis third parties necessarily assumed by Bioclear in the performance of the Instruction

In addition, the Client shall pay Bioclear 10% of the remaining part of the price which would have been payable by the Client pursuant to completion of the entire Instruction by Bioclear. This latter obligation will not be applicable in the event of termination of the Instruction due to breach of contract on Bioclear’s part or force majeure.

Article 13 Premature termination of the Instruction by Bioclear

13.1 Bioclear may terminate the Instruction in the event of force majeure or with the Client’s consent or in the event of breach of contract on the Client’s part. Bioclear will be obliged to perform all such work which, in view of the relevant circumstances, may be reasonably required of it in view of the consequences for the Client of such termination. The Client will be obliged to pay Bioclear:

  • the price of the work completed
  • the costs incurred
  • the costs ensuing from any obligations vis-à-vis third parties necessarily assumed by Bioclear in the performance of the Instruction

13.2 In the event of termination of the Instruction due to breach of contract on the Client’s part – including any such acts on the Client’s part that Bioclear may not reasonably be expected to perform the rest of the Instruction – Bioclear will furthermore be entitled to claim compensation of any direct damage incurred as a consequence.

13.3 In the event that Bioclear terminates the Instruction on other grounds than those referred to in Article 13.1, the Client will be entitled to claim compensation by Bioclear of any direct damage incurred by it as a consequence of the termination.

Article 14 Cancellation

14.1 In the event that the Client, after concluding an Agreement with Bioclear, wishes to cancel such Agreement, 10% of the price agreed upon (including VAT) will be charged to the Client as a cancellation fee, without prejudice to [Bioclear’s] right to full damages, including lost profits.

Article 15 Termination due to involuntary liquidation or suspension of payments

15.1 If the Client is put into involuntary liquidation, Bioclear will be entitled to demand of the liquidator that he/she state within eight days whether or not he/she is prepared to honour the Agreement, providing security for proper performance of the Agreement. In the event that the liquidator does not state within the said eight-day period of time that he/she is prepared to honour the Agreement, the Agreement must be deemed to be dissolved. In the event that the Client is granted a suspension of payments or the Client is admitted to a composition scheme on the basis of the Dutch Natural Persons Composition Act [Wet Schuldsanering Natuurlijke Personen], the provisions of this paragraph will apply mutatis mutandis, on the understanding that the term “liquidator” must be deemed to be replaced by “the Client and the Administrator”. In the event of dissolution of the Agreement pursuant to involuntary liquidation, suspension of payments or composition, Articles 12.1 and 12.2 will apply mutatis mutandis.

15.2 If Bioclear is put into involuntary liquidation, the Client will be entitled to demand of the liquidator that he/she state within eight days whether or not he/she is prepared to honour the Agreement, providing security for proper performance of the Agreement. In the event that the liquidator does not state within the said eight-day period of time that he/she is prepared to honour the Agreement, the Agreement must be deemed to be dissolved. In the event that Bioclear is granted a suspension of payments, the provisions of this paragraph will apply mutatis mutandis, on the understanding that the term “liquidator” must be deemed to be replaced by “Bioclear and the Administrator”. In the event of dissolution of the Agreement pursuant to involuntary liquidation or suspension of payments, the provisions of Article 13.1 will apply mutatis mutandis.

Article 16 Storage of research objects

16.1 Unless provisions to the contrary have been agreed on upon the Instruction being given, Bioclear will keep – to the extent reasonably possible – the materials, including any samples made available to it or remainders thereof, for a period of two weeks after the date on which the results of the research have been reported to the Client. Any related costs must be deemed to be included in the price stated in the offer. In the event that the Client has not made arrangements during this period for returning the said materials, Bioclear will be free to take appropriate measures. Any related costs, including the costs of the longer storage period, will be borne by the Client.

Article 17 Miscellaneous

17.1 In the event of work related to the Instruction of the site on the Client, the Client shall make – further to a timely request to that effect submitted by Bioclear – auxiliary personnel and equipment available to Bioclear free of charge.

17.2 During their presence in Bioclear’s buildings or on its sites, the Client and/or its personnel will be obliged to comply with Bioclear’s company rules applicable to users of the relevant buildings or sites. The Client shall ensure that its personnel act in accordance with the provisions above.

17.3 In the event of measured risks for public or personal health Bioclear holds the right to inform responsible governmental bodies, despite secrecy agreements. But only as required mandatory by Dutch legislation and after written explanation to the Client .

Article 18 Disputes

18.1 Any and all disputes arising from the relevant Agreement or any further ensuing Agreements will be settled by the competent court in Groningen or – at Bioclear’s discretion – the court designated by the law.

BIOCLEAR B.V., 11 September 2002