1.1 These General conditions apply to every offer, price specification assignment confirmation and every agreement between HaemoScan B.V., hereafter called HaemoScan, and a Customer, insofar as the parties have not expressly agreed contrary conditions in writing.
2. Offers and agreements
2.1 An offer made by HaemoScan is only valid during a period of two months after the date set out on the offer, unless another term is set out in the offer. All offers are non-binding.
2.2 An agreement will only be established between HaemoScan and the Customer by written confirmation by HaemoScan of the assignment granted by the Customer. Verbal promises by and agreements with employees and/or subordinates of HaemoScan do not bind HaemoScan.
2.3. Changes, additions to and/or expansion of the agreement will only be made in writing.
2.4. Contrary to the above, agreements for the carrying out of additional work can be made verbally. HaemoScan is also entitled to separately charge for additional work it has carried out if it reasonably considers the carrying out of such work necessary for the performance of the agreement. HaemoScan will immediately inform the Customer of such unforeseen costs. The applicability of the provisions of Section 7A: 1646 of the Dutch Civil Code are excluded insofar as possible.
3. Performance of work
3.1. HaemoScan undertakes to carry out the assignment given to the best of its abilities.
3.2. The (analysis) results provided by HaemoScan are exclusively intended for non-clinical research purposes and not for (medical) clinical use.
3.3. HaemoScan will carry out the assignment promptly, with reasonable skill and care and in accordance with such requirements as the parties may agree in writing. HaemoScan shall use its best endeavours to ensure that all data, information and other material produced by HaemoScan for the Customer under the agreement will comply with all relevant regulations and codes of practice (including in particular, Good Laboratory Practice as currently referred to in the guidelines issued by the OECD) as may be supplemented or amended from time to time.
3.4. Since HaemoScan itself is not certified to GLP standards or other regulations or codes of practice (yet), HaemoScan has no authority whatsoever to make any formal statement whether or not the objects under or subjects of study comply with certification criteria according to GLP standards or standards of other regulations or codes of practice. Therefore, the decision and all the consequences thereof whether or not to use the data provided by HaemoScan for certification purposes or for clinical use and whether or not these data can be used to determine the safety of the objects under or subjects of study of (actual) use in humans, fully lay with the Customer and not to any extent with HaemoScan.
3.5. The Customer is entitled to be present at the carrying out of the assignment by HaemoScan after prior consultation regarding the time. In addition, the Customer is entitled to inspect the logs pertaining to the assignment.
3.6. Unless the contrary has been agreed for separate remuneration, the samples received by HaemoScan for analysis will be stored for 26 weeks after reporting the analysis results. After this time the samples will be destroyed or removed, at the expense of the Customer.
4.1. Unless otherwise stated, all prices indicated by HaemoScan are in Euro’s, and are exclusive of tax, such as VAT and levies.
4.2. In the event of a long-term contract HaemoScan has the right to increase the agreed prices in the event of an increase of the costs of cost price components, even if fixed prices have been agreed upon. HaemoScan will immediately inform the Customer of such a fact.
4.3. The indicated prices do not encompass, unless otherwise stated, the expenditure for work carried out by third parties. Such expenditure will be charged to the Customer separately.
5.1. HaemoScan will report on the results of the analysis carried out by it by means of a written report, which meets the requirements which may be set for a report drawn up by a reasonably prudent analyst. The Customer has the right to use this report, subject to the provisions of Article 6. This report will be provided within 60 days after HaemoScan has completed its analyses.
6. Industrial and intellectual property and publication
6.1. The Customer remains at all times the owner/party entitled to the samples (of objects), the compound or object, the production of the compound or object and the know-how regarding (the effects of) the compound or object provided by the Customer to HaemoScan, hereinafter together referred to as the Customer Know-How, unless it has become public knowledge through no fault of HaemoScan. All data, except all validation data and all control data, created by HaemoScan in the course of the agreement shall belong to the Customer absolutely. All validation data and all control data shall belong to HaemoScan absolutely, but shall be made available to the Customer without limitation
6.2. HaemoScan remains at all times the owner/party entitled to the test methods, models, technologies, and systems used and/or developed by HaemoScan, hereinafter together referred to as HaemoScan Know-How, unless it has become public knowledge through no fault of the Customer.
6.3. In case HaemoScan develops any improvement on the Customer Know-How it shall promptly and fully communicate to the Customer this improvement. The Customer shall be deemed to be the owner of this new know-how. Nevertheless, the Customer herewith grants to HaemoScan a non-exclusive irrevocable royalty free license to use and exploit the improvements insofar the use and exploitation is possible without the use of the Customer Know-How, regardless of the fact whether or not such Improvement is patented or patentable.
6.4. In case the Customer develops any improvement on the HaemoScan Know-How, it shall promptly and fully communicate to HaemoScan this improvement. HaemoScan shall be deemed to be the owner of this new know-how.
6.5. Notwithstanding provisions 6.1 till 6.4 HaemoScan remains at all times the owner/party entitled to the offer, specifications and reports etc., in any form and of any nature whatsoever, developed by HaemoScan which were made or provided in the framework of the offer or the agreement, even if costs will or have already been charged therefore. HaemoScan is deemed to be the party entitled to all rights of industrial and/or intellectual property, even if these rights arose in the framework of the agreement.
6.6. With the exception of the analysis results, the Customer is bound by a duty of confidentiality with regard to all information relating to the working methods of HaemoScan and (the contents of) all goods and rights referred to in Paragraph 6.2 as well as all other know-how and trade information in the broadest sense, deriving from HaemoScan, which has come to the attention of the Customer in the framework of the agreement. The Customer will not use the information referred to in Paragraphs 3.5, 6.5 and 6.6 for any other purpose than the purpose of inspection for which it is provided.
6.7. The Customer is entitled to publish the reports and recommendations provided by HaemoScan, on condition that all side- and footnotes are quoted as well, if HaemoScan is stated to be the author of the report. In case the report is not published entirely and HaemoScan is stated to be the author of the report, the Customer shall ensure that it is clear that publication only encompasses a partial publication. The Customer shall notify HaemoScan of such a fact prior to publication. In case the report is not published entirely, the Customer shall indemnify and hold harmless HaemoScan against any and all claims and costs related to such partial publication.
7. HaemoScan’s duty of confidentiality
7.1. HaemoScan will keep the know-how, meant in article 6.1, the results of analyses and measurements strictly confidential.
7.2. HaemoScan shall ensure that its staff also observe this duty of confidentiality. The confidentiality obligation does not apply to information which is already generally known to the public or which is being made known to the public (e.g. through scientific publications) without breaching a confidentiality agreement. The confidentiality obligation will continue after termination of the Agreement. It will end at such time and insofar as the confidential information has demonstrably been made known to the general public independently of any action of HaemoScan.
7.3. HaemoScan is entitled to engage auxiliary staff in the performance of the work, subject to the obligation to make such third parties subject to the duty of confidentiality referred to in Paragraph 1 of this article.
8. Performance time
8.1. The term for performance commences on the latter of the following dates: – the day the agreement is entered into; – the day that the Customer has provided HaemoScan with all data, materials and other goods that HaemoScan requires for performance; – the day of receipt of the advance payment or security laid down in the agreement.
8.2. In view of the nature of the work, the performance time can only be indicated as an approximate.
9.1. Payment will be made without deduction within 30 days from the date of invoice. Disputes about the invoice will not lead to suspension of the payment obligation. In the event that the Customer fails to make payment within the stipulated term, HaemoScan is entitled to charge additional administrative costs plus interest at a rate of 2% above the discount rate of the Nederlandsche Bank.
9.2. In the event that HaemoScan takes measures for the recovery of debts or for the maintenance of its other rights vis-à-vis the Customer, the Customer is bound to pay all expenses incurred by HaemoScan towards this end. These expenses include all payments to third parties engaged for the execution of the measures in question plus all expenses incurred by HaemoScan within its own organisation which can reasonably be assumed to originate in the aforementioned measures, with a minimum of EUR 500,–.
9.3. In the event of liquidation, a petition for bankruptcy or a moratorium on payment of the Customer, the obligations of the Customer will fall due immediately and in their entirety.
9.4. In the event HaemoScan has good grounds to fear that the Customer will not be able to meet its financial obligations, HaemoScan has the right to demand satisfactory security for the agreed price, before it is obligated to recommence its work.
10.1. In the event that (part of) the reports and recommendations drawn up by HaemoScan are incorrect, exclusively or predominantly as a direct consequence of demonstrable mistakes by HaemoScan, which HaemoScan as a reasonably prudent analyst, and taking into account the state of technology, should not have made, then during six months after completion of the carrying out of the assignment HaemoScan will draw up the reports and recommendations in question or carry out the analysis in question again, free of charge.
11.1. A claim under the guarantee referred to in article 10 lapses in the event that:
– a complaint has not been lodged in writing by registered mail within five working days after the error in question has been discovered;
– HaemoScan was not allowed to immediately investigate the complaints and to fulfil its guarantee obligations;
– the Customer has failed to perform any material obligation to which it is subject or has not performed such adequately or in time;
– the errors are partly the result of wrongful and/or incorrect acts on the part of the Customer.
11.2. The liability of HaemoScan is at all times limited to the invoice amount owing for the activities from which the liability arises, or – in case this amount is lower – to the amount of the insurance benefit which will be paid by the insurance company of HaemoScan to HaemoScan in this particular case.
11.3. HaemoScan is not liable for damages suffered by the Customer or third parties related to the activities of HaemoScan, unless the damages are attributable to gross negligence or intent on the part of HaemoScan.
11.4. HaemoScan is in any event never liable for trading loss or consequential loss or indirect loss of the Customer or third parties.
11.5. HaemoScan is not liable for damages suffered by the Customer or third parties resulting from loss and/or damage of the analysis material provided or to be provided to HaemoScan for analysis.
11.6. HaemoScan is not liable for use by the Customer of the data generated by HaemoScan with respect or related to any clinical use of (the outcome of analysis of) the samples or objects send in for analysis, nor for any other use by the Customer of the data generated by HaemoScan, other than the direct and communicated purpose of the analysis.
11.7. All limitations and exclusions of liability stipulated for HaemoScan have also been stipulated on behalf of HaemoScan’s employees and auxiliary staff, including in the event of gross negligence and intent.
11.8. The Customer will indemnify HaemoScan against any claim of third parties for compensation of damages and/or costs for which HaemoScan is not liable under the agreement with the Customer.
11.9. HaemoScan is never liable for the quality and representativeness of the samples or objects to be analysed by HaemoScan.
12. Unforeseen circumstances
12.1. HaemoScan will never incur liability as a result of its inability to perform its obligations towards the Customer by reason of unforeseen circumstances preventing the normal performance of operations, such as war, hostilities, fire or other forms of destruction, failures, accidents or interruptions of any kind, strikes, government measures, etc. In addition, HaemoScan will not incur liability as a consequence of the inability of third parties to perform their obligations by means of unforeseen circumstances as indicated above.
13. Termination or suspension by the Customer
13.1. If the Customer prematurely terminates the agreement, the Customer will compensate HaemoScan for all work carried out, materials purchase, profit loss and other damage suffered by HaemoScan. The profit loss will in such case be deemed equal to 20% of the agreed price.
13.2. In the event HaemoScan agrees to a request of the Customer to suspend performance of the assignment for a particular period, HaemoScan is entitled to charge the Customer for the additional costs which are the result of such suspension.
14. Whole or partial termination
14.1.In the event that:
a. the customer fails to perform its obligations or to perform them in time or properly;
b. the Customer is declared bankrupt, a moratorium on payment is petitioned for and/or granted to the Customer, the Customer is placed under legal guardianship or his property or any part thereof is seized before judgement or under a writ of execution;
c. the Customer liquidates or shuts down its business or any part thereof.
14.2. HaemoScan will have the right, merely upon occurrence of any of the above events, to consider the agreement terminated in whole or in part by operation of law with immediate effect, without the need for juridical recourse, without prejudice to its right to compensation for damages and costs.
14.3. Any claims which HaemoScan may have or come to have as a consequence of termination of the assignment, including any claims for compensation of damages and costs, will fall due immediately and in their entirety.
15. Disputes and Applicable Law
15.1. The accomplishment and performance of the assignment and any further agreement arising therefrom will be governed exclusively by Dutch law.
15.1. Any disputes, which may arise between the parties with regard to the assignment or any further agreements relating to the assignment will be legally settled by the District Court of Groningen, the Netherlands, unless HaemoScan chooses for the competence of a court of the country where the Customer is established.