General Terms and Conditions, October 2020
General Terms and Conditions
Agreements about sale and delivery
Definitions & General
In these terms and conditions, the following terms are defined as stated below:
- Hycult Biotechnology (H.B.T.) B.V. is a private company with limited liability operating under the brand name Hycult Biotech , also offering additionally contract research and contract manufacturing under the name “Biocult” hereinafter collectively further referred to as “HYCULT”, with its registered office and principal place of business in (5405 PB) Uden, the Netherlands, Frontstraat 2a, registered in the Chamber of Commerce under number 16073872.
- “Other Party”: every natural person or legal entity who or that has concluded or wishes to conclude, respectively, an agreement with HYCULT or, also the representative(s), authorised agent(s), successor(s) in title and / or heir(s) of same.
1. Applicability of the conditions, titles and language
1.1 These conditions apply to all offers, legal relationships and agreements whereby HYCULT delivers products and/or services of whatever nature to the Other Party. Departures from these conditions will only be effective if expressly agreed in writing, whereas writing or written is defined as correspondence by e-mail, fax or by regular post between the parties.
1.2 If one or more provisions in the conditions is or becomes at any time fully or partly void or invalid, this shall not affect the remaining provisions in the conditions.
1.3 HYCULT may during the existence of the legal relationship make requirements for communications between the parties or for legal transactions to take place via digital media.
1.4 The applicability of any terms of purchase or other terms and conditions of the Other Party are explicitly rejected. Consequently, general (purchase) conditions of the Other Party are not applicable.
2. The offer and realization of the agreement
2.1 An agreement between HYCULT and the Other Party is concluded by a written offer and a written acceptance of this offer.
2.2 HYCULT is only bound by any sources supplied by or on behalf of HYCULT such as – but not exclusively - price lists, brochures, catalogues, folders, websites and other data insofar as explicit reference is made in the offer or agreement to data from these sources.
2.3 HYCULT is authorized to engage third parties for the implementation of the agreement and to charge the Other Party for the costs of this in accordance with the rates given.
3.1 Both HYCULT and The Other Party undertake to observe strict confidentiality with regard to all confidential information they receive from each other. They shall also impose this confidentiality obligation on their employees as well as to third parties who have been contracted by them in connection with any Agreement between HYCULT and The Other Party.
3.2. Information will also be regarded as confidential if either HYCULT or The Other Party indicates such information as confidential.
3.3. In addition, The Other Party is forbidden to copy any HYCULT information either wholly or partially and/or to make it known to third parties in whatever way and/ or to allow it to be used by third parties and/or to sell it or place it at anybody’s disposal.
3.4 The Other Party is only permitted to use the data and information insofar necessary for the fulfillment of the agreement. At the first request of HYCULT, and if the agreement is not realized or is cancelled, the Other Party must return all the materials, designs, calculations, information, data, etc., indicated here to HYCULT immediately.3.5. If the Other Party violates paragraph 3 or 4 of this article, the other party will forfeit to HYCULT an immediately due and payable penalty of € 7.500,00 for each violation as well as a penalty of € 500,00 for each day that the violation continues, without prejudice to HYCULT’s right to claim compliance in addition to that penalty and to claim full compensation instead of that penalty.
4. Amendments to the agreement
4.1 Any entire or partial amendment or cancellation of the agreement may only be made with prior written consent from HYCULT.
4.2 If HYCULT consents to such amendment or cancellation, the Other Party is obliged in each case to pay HYCULT for the costs of work already undertaken by HYCULT.
4.3 In the event of such amendment or cancellation HYCULT is permitted to invoice the Other Party for the related costs and to reestablish the delivery and lead times in relation to his commitments under the agreement.
5.1 Any offer made by HYCULT is without prejudice. Therefore, any price details/offers and rates contained therein are included with all rights reserved.
5.2 Prices are in Euro (€) and:
- based on delivery Ex Works (in accordance with Incoterms);
- exclusive of VAT, import duties and other taxes, levies and duties;
- exclusive of transport and insurance costs;
6. Limited license
6.1 Subject to these Terms and Conditions, and to the terms and conditions of any license provided by HYCULT that is specific to a particular product (which shall govern with respect to such Product in the event of conflict with these Terms and Conditions), HYCULT hereby grants to the Other Party and the end-user a non-exclusive, non-transferable, non-sub licensable license to use the product(s) provided to the Other Party and the end-user by HYCULT only in accordance with the manuals and written instructions provided by HYCULT and with HYCULT product label. The Other Party understands and agrees that except as expressly set forth in these Terms and Conditions (or in the HYCULT-provided license specific to a particular product), no right or license to any patent or other intellectual property owned or licensable by HYCULT is conveyed or implied by these Terms and Conditions for any product or service. In particular, no right or license is conveyed or implied to use any product provided hereunder in combination with a product not provided, licensed or specifically recommended by HYCULT for such use.
6.2 Except for the use of HYCULT background IP, confidential information or trade secrets this limited license is exempted in case of contract research or contract manufacturing services for which HYCULT and the Other Party shall settle terms in the offer and/or a separate agreement.
7. Delivery and delivery time
7.1 Title and risk of loss or damage will pass to the Other Party upon delivery of the products to the carrier. Irrespective of the moment at which the risk transfers to the Other Party, the moment of delivery shall be deemed to be the same as the moment on which the products are offloaded or landed at the agreed place (actual transfer).
7.2 The Other Party must report any shortages, defects and damage in writing directly to HYCULT within eight (8) days of the delivery. If nothing is reported the products will be regarded as having reached the Other Party in good condition, complete and without damage and therefore as agreed.
7.3 HYCULT is entitled to deliver in installments (part-deliveries) and to invoice these installments separately.
7.4 Lead times and delivery dates given in the quotes/offers/proposal for commitments of HYCULT are not absolute deadlines. Delay shall therefore not arise until the Other Party has declared HYCULT in default and granted her a reasonable period to fulfill the commitments under the agreement.
7.5 HYCULT is obliged to observe the specified delivery time or delivery period as much as possible. In the event of exceeding the delivery period, HYCULT cannot held accountable for any damages and is therefore not obliged to provide any compensation for damages of whatsoever nature. Exceeding a delivery time or delivery period does not give the Other Party the right to terminate or to dissolve the agreement. In cases where a delivery time or period is exceeded excessively, parties must consult with each other.
8. Transport and packing
8.1 HYCULT shall, based on his experience, determine the method of packaging, transport, shipment, etc., of products.
8.2 If the Other Party has specific wishes and insofar as HYCULT agrees to these wishes in relation to packaging and/or transport, also including relocation within the business or company site, the Other Party is obliged to settle the costs invoiced for this by HYCULT.
9. Force majeure (non-liable failing)
9.1 None of the parties is obliged to fulfill any obligations, including any guarantee undertakings agreed between the parties, if he is prevented from doing so as a result of force majeure. Force majeure shall also be deemed to denote: (i) force majeure of subcontractors of HYCULT, (ii) failure to properly fulfill obligations by subcontractors that are stipulated by the Other Party, (iii) deficiency of items, or materials from third parties whereby said use is stipulated by the Other Party, (iv) governmental actions, (v) electricity failure, (vi) failure of the Internet, service providers, computer network or telecommunication facilities, (vii) war, (viii) occupation, (ix) strike, (x) general transport problems and (xi) the unavailability of one or more members of staff, (xii) terrorist attacks or hostage taking, (xiii), epidemics and pandemics, (xiv) financial crisis, (xv) the non-functioning of the payment network of the banks concerned.
9.2 If a situation of force majeure endures for longer than ninety (90) days, each of the parties shall have the right to dissolve the agreement in writing. Any work already carried out on the basis of the agreement shall in that case be settled pro rata, without the parties owing anything further to one another. The parties shall immediately make payment in connection with this settlement.
9.3 If HYCULT wishes to plead force majeure, she shall inform the Other Party of this as soon as practically possible. The consequences of force majeure shall come into effect from the moment that the eventuating circumstance, cause or incident has occurred.
9.4 If HYCULT is prevented by force majeure from fulfilling any commitments, on whatsoever legal basis, towards the Other Party and the force majeure is in the opinion of HYCULT temporary or provisional in nature, HYCULT is entitled to postpone implementation of the agreement until the circumstance that causes or caused the force majeure no longer applies.
9.5 If HYCULT, as a result of force majeure, is prevented from fulfilling his obligations with regard to one or more of his customers or buyers but not his obligations with respect to all his customers or buyers then HYCULT is entitled to decide himself which of the obligations will be fulfilled and for which customers or buyers as well as the order in which they will be fulfilled.
10.1 With due observance to the provisions specified elsewhere in these conditions HYCULT guarantees the quality of the materials used and their promised characteristics as well as the correct working of the products provided by HYCULT in accordance with the accompanying product specifications.
10.2 Faults in any products supplied which fall under the guarantee will, exclusively at the discretion of HYCULT, be rectified or the products will be replaced if the faults, in the opinion of HYCULT and/or producer, are attributable to construction faults or faults/failings of the materials used as a result of which the products are unusable by the Other Party for the purpose for which they can reasonably be thought of as intended.
10.3 If it appears that the products offered to HYCULT for rectification or repair exhibit no faults then the Other Party is obliged to settle all costs incurred by HYCULT.
10.4 If the Other Party fails to fulfill one or more of his obligations then HYCULT is released from his guarantee obligations.
10.5 Satisfying the guarantee obligation shall be deemed to be the only and complete compensation.
11. Ownership reservation
11.1 Without prejudice to the provisions in Article 8 of these conditions regarding the risk and the transfer thereof, all the products supplied by or on behalf of HYCULT remain the property of HYCULT until the moment that the debt owed by the Other Party to HYCULT has been settled in full, this debt likewise including the amount that the Other Party has owed HYCULT since the realization of the agreement inclusive of all interest and costs. For so long as the ownership of the products supplied by or on behalf of HYCULT remains with HYCULT according to the provisions in this Article, the Other Party is obliged to hold these products separately from other products in such a way that they can easily and clearly be identified as the products of HYCULT.
11.2 In the case of non-payment by the Other Party of any amount due to HYCULT and furthermore when the agreement is ended, HYCULT will be entitled to demand the return of any products for which ownership reservation applies and to take the measures associated with this, taking into account any payments already made for the products, without prejudice to the right of HYCULT to demand compensation for possible loss or damage. In the case of non-payment or termination of an agreement each claim which HYCULT has against the Other Party becomes immediately due.
11.3 At the first request from HYCULT the Other Party must authorize the immediate return of the products which have not yet been fully paid for, wherever these may be.
12. Liability and Indemnification
12.1 If HYCULT is liable, this liability will be limited to the terms of this provision.
12.2 HYCULT is not liable for damage of any nature resulting from HYCULT working on the basis of incorrect and / or incomplete information provided by or on behalf of The Other Party.
12.3 If HYCULT should be liable for any damage, this liability will be limited to the invoice value of the order, at least the part of the order the liability pertains to.
12.4 The liability of HYCULT will in any case always be limited to the amount paid out by the insurer in such particular event plus the amount of the excess. HYCULT is not liable for events not covered by the insurance agreements concluded by HYCULT in that respect.
12.5. HYCULT will only be liable for direct damages.
12.6 Direct damage solely refers to the reasonable costs to establish the cause and the extent of the damage, in so far as the establishment relates to damage within the meaning of these conditions, any reasonable costs incurred to allow the defective performance of HYCULT conform to the agreement in so far as these are attributable to HYCULT and reasonable costs incurred for the prevention or limitation of damage, in so far as The Other Party demonstrates that these costs have resulted in the limitation of direct damage within the meaning of these general terms and conditions. HYCULT will never be liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business interruption.
12.7 The limitation of liability as defined in this article also applies for all third parties engaged by HYCULT, including suppliers and / or agents.
12.8 The limitations of the liability included in this article do not apply if the damage is the result of wilful intent or gross negligence on the part of HYCULT or its managing employees.
12.9 The Other Party indemnifies HYCULT against any claims from third parties that suffer damages in relation to the performance of the agreement.
12.10 The Other Party indemnifies HYCULT against any claims from third parties for compensation of damages The Other Party is held accountable for, while said damage arose as a result of or is connected to a product or service delivered by HYCULT.
12.11 If HYCULT were to be held accountable by third parties for damages within the scope of the performance of the agreement, The Other Party will be held to assist HYCULT both extra judicially and judicially to immediately do all that may be expected of The Other Party in such an event. If The Other Party fails to take adequate measures, HYCULT itself will be entitled to take measures, without requiring a notice of default. All costs and damage on the part of HYCULT and third parties arising as a result of this will be entirely at the expense and risk of The Other Party.
13.1 Notwithstanding the provisions in Article 8.2 HYCULT shall only accept claims for processing if it receives them from the Other Party in Written form within eight (8) days of delivery. For hidden faults, claims are only possible within the guarantee period.
13.2 Claims can only be handled when the nature and grounds for the complaints are stated precisely.
13.3 Claims regarding invoices must be lodged in writing with HYCULT within eight (8) days of the date of the invoice.
13.4 Lodging a claim never discharges the Other Party from his payment obligations towards HYCULT.
13.5 Return of the delivery or any part thereof to HYCULT, for whatever reason, may only take place with express prior written consent and shipment instructions from HYCULT to the Other Party.
14. Intellectual or industrial property rights
14.1 All right of intellectual and industrial ownership to the products, analyses, designs, documentation, reports, proposals, and preparatory materials for the same developed or made available by HYCULT for the Other Party, remains exclusively with HYCULT, his licensors or his subcontractors. The Other Party only receives the usage rights that are expressly assigned in Article 6, the conditions and the law. These usage rights are non-exclusive and non-transferable to third parties. Any other or further right of the Other Party is excluded.
14.2 If, contrary to expectation, a good sold by HYCULT to the Other Party infringes an industrial or intellectual ownership right of a third party and the Other Party is held liable, then the Other Party is obliged at once to inform HYCULT in writing of the situation. In this case HYCULT has at his discretion either to supply the right to use that good to the Other Party, or to modify the good in such a way that there is no further infringement, or to deliver a replacement good that does not infringe the right, or once he receives the good back to repay to the Other Party the purchase price less a reasonable payment for the period that the Other Party had the good at his disposal.
15. Payment and default
15.1 The Other Party shall pay invoices in accordance with the terms of payment given in the invoice. If no specific conditions are stated in the invoice, the Other Party shall pay within thirty (30) days of the given date of invoice. The Other Party is not entitled to offset or delay payment. The date on HYCULT’s bank or giro statement when the payment is recorded as received applies as date on which the payment has occurred.
15.2 Any payment by the Other Party shall – if applicable – go in the first place towards settlement of any interest he owes and towards any costs of collection and administrative costs owed to HYCULT, and then towards settlement of the outstanding claims in order of age, therefore commencing with the oldest outstanding claim.
15.3 If the Other Party does not settle sums owed to HYCULT punctually, the Other Party shall without a warning or declaration of default being necessary also owe the outstanding amount of 1.5% interest per month. If following reminder to pay, warning or declaration of default the Other Party still fails to fulfill his payment obligations within a reasonable period he shall by rights be in default. From that moment HYCULT may pass the claim on for collection. Once the claim is passed on the Other Party is obliged besides the rightfully established costs to reimburse HYCULT for the actual legal costs of HYCULT and the actual extra-judicial costs including the costs charged by external experts.
15.4 HYCULT may require one or more advance payments prior to commencement of the execution of the agreement or prior to HYCULT continuing its performance of the agreement. The payment of the advance invoice must be made within 14 days after the invoice date.
16. Cancellation by Other Party
16.1 If the Other Party wishes to cancel an order he has issued and HYCULT consents to this, the Other Party shall owe HYCULT for the costs of cancellation. The costs of cancellation are expressed as a percentage of the amount connected with the agreement which percentage depends on the work that has already been undertaken by HYCULT to implement the agreement, the nature or type of services and products to which the order relates, and the costs that he has incurred up to the moment of cancellation.
17. Field of use
17.1 Field of use of products is limited to the use as indicated on the label and/or documentation of the products and the territory where mentioned.
18.1 Collection and use of information.
Data that is collected by subscription to our newsletters, filling of contact form, registration of account for webshop, direct orders and e-mail requests for technical support shall only be used for communications regarding HYCULT products and services. This information might include your address details, name of institute, email address, field of activity, first name, last name, password, phone number, username, various types of data, VAT Number and ZIP/Postal code. The collected information is limited for use to service your orders, assist with technical support and/or custom requests and keep you updated with relevant product updates and/or scientific news.
18.2 Security of data.
HYCULT is the sole owner of information collected on our website or via correspondence. Your personal information is not sold, exchanged, transferred or shared to any other company for any purpose without your consent, except when required to fulfill a request and/or transfer, such as to send an order.
18.3 Handling personal data.
Personal information is not disclosed, sold, traded or otherwise transferred to third parties. This is exclusive trusted third parties that service our website or CRM software, with the requirement that these parties have agreed to keep the information confidential and guarantee data protection.
18.4 Information protection.
HYCULT has arranged the necessary security measures to be able to protect personal information, which includes and is not limited to encryption methods or secured transfer over the internet.
Our employees are bound to strict confidentiality regarding HYCULT data. Employees involved in order & logistics, customer support and accounting and who need to perform specific activities such as billing, order shipments or customer service will have access to personally identifiable information.
In case we use your email address to send information and updates regarding product information via newsletters we offer the option to unsubscribe in such communications.
19. Applicable law and disputes
19.1 These General Terms as well as any related Agreement between HYCULT and The Other Party, shall be governed by, and interpreted in accordance with the laws of the Netherlands, excluding its conflict of law rules.
19.2 Any disputes following from or arising in connection with these General Terms and any related Agreement between HYCULT and The Other Party, that the Parties cannot resolve in mutual consultation, shall be exclusively submitted to the competent court in the Netherlands.
20.1 These Terms and Conditions constitute the entire agreement between the Other Party and HYCULT with respect to the subject matter hereof and is the final, complete, and exclusive statement of the terms of the agreement, superseding all prior written and oral agreements, understandings and undertakings with respect to the subject matter hereof. The waiver of any provision or any breach thereof shall not affect any other provision of these Terms and Conditions. To the extent permitted by applicable law, these Terms and Conditions shall be governed by and construed according to the laws of the Netherlands with regard to conflict of law provisions. The U.N. Convention on Contracts for the International Sale of Products shall not apply to these Terms and Conditions. In the event that any provision of this Agreement or portion thereof is found to be illegal or unenforceable, the Agreement shall be construed without the unenforceable provision or portion thereof.
20.2 Provisions stated in a valid and signed HYCULT distribution or supply agreement supersedes these Terms and Conditions.
Hycult® Biotech is a registered trademark of Hycult Biotechnology B.V. and is ISO 13485 certified.