HYBRISCAN TECHNOLOGIES
GENERAL TERMS AND CONDITIONS OF SALES
DEFINITION
HYBRISCAN TECHNOLOGIES – User of these General Terms and Conditions.
THE OTHER PARTY – Each person or legal entity that commences negotiations with HybriScan Technologies with regard to the potential purchase of HybriScan’s products or services.
ARTICLE 1
QUOTES AND OFFERS - These General Terms and Conditions are applicable to each offer, quote and agreement made by or entered into by HybriScan Technologies and to the purchase orders accepted by HybriScan Technologies.
If these General Terms and Conditions conflict with the terms and conditions of a purchase order document or purchase document issued by The Other Party then the General Terms and Conditions in this document shall prevail.
HybriScan Technologies shall accept an order when The Other Party has provided written acceptance of these General Terms and Conditions or has paid for the product or when the product sold by HybriScan Technologies has been accepted or when another document is issued demonstrating acceptance of the General Terms and Conditions.
If one or more clauses in these General Terms and Conditions become null and void in full or in part at any time then the remainder of these General Terms and Conditions shall remain in full force.
All quotes and offers from HybriScan Technologies are without obligation unless a term for acceptance is set in the quote. A quote or offer shall lapse in the event that the product to which the quote or offer relates is no longer available after the quote or offer has been issued.
A compiled quotation does not oblige HybriScan Technologies to deliver a part of the order at a corresponding part of the quoted price. Offers or quotes do not automatically apply to future orders.
Except as otherwise noted, the quoted price includes installation and testing, if desired by The Other Party two- days training and a user manual. Prices do not include any duties, freight, shipping, insurance or taxes unless specifically noted. The Other Party shall pay such amounts directly or reimburse HybriScan Technologies for all such amounts, whether imposed on The Other Party, required to be collected by Seller or imposed on the Product or HybriScan Technologies in connection with this sale (excluding taxes based on HybriScan Technologies’ income).
ARTICLE 2
PAYMENT TERMS AND DEBT COLLECTION COSTS - Payment must be made within 14 days after the date of the invoice and must be made in accordance with the instructions stated by HybriScan Technologies and in the currency in which the invoice has been raised, unless stated otherwise in writing by HybriScan Technologies. HybriScan Technologies is entitled to raise interim invoices.
If specified, The Other Party shall pay to HybriScan Technologies an advance payment for the offered product or service until the purchase price is paid in full. The product remains the property of HybriScan Technologies until the full purchase price has been paid.
The Other Party shall execute and supply all documents requested by HybriScan Technologies in order to maintain the safety of the offered products.
If The Other Party remains in default in respect of the timely payment of an invoice then the other party shall be in legal breach of contract. In this case The Other Party shall owe interest at one and half percent (1½ %) per day, unless the statutory interest is higher, in which case the statutory interest shall be payable. The interest on the claimable amount shall be calculated from the moment that The Other Party is in breach of contract up to the moment at which the full amount owing has been paid.
Without breaching the contract, HybriScan Technologies can refuse an offer of payment if The Other Party chooses a different sequence of allocating the payment. HybriScan Technologies can refuse full payment of the principal sum in the event that the outstanding and due interest and debt collection costs are not paid simultaneously.
The Other Party is never entitled to set-off amounts that it owes to HybriScan Technologies.
Objections to the amount of an invoice shall not defer the obligation to pay. Nor is The Other Party, if unable to rely on Section 6.5.3 (Articles 231 up to and including 247 of Book 6 of the Civil Code), entitled to defer payment of an invoice for an alternative reason.
If The Other Party is in default or in breach of the (timely) observance of its obligations then all reasonable extrajudicial costs for obtaining payment shall be at the expense of The Other Party.
If the delivery (the transport) of HybriScan’s products is delayed by The Other Party then HybriScan Technologies shall charge The Other Party the cost of the delay.
The extrajudicial costs shall be calculated on the basis of that which is common practice in debt collection practice in The Netherlands, which is currently the method of calculation according to the ‘Rapport Voorwerk II’. However, if HybriScan Technologies has incurred higher debt collection costs that were reasonably necessary then the actual costs incurred shall be eligible for payment. Likewise, any legal and enforcement costs shall be recovered from The Other Party. The Other Party shall also be liable for the interest on the debt collection costs.
ARTICLE 3
DELIVERY DATES – For the delivery of HybriScan Technologies’ products or services a date shall be agreed or stated. The Other Party is obliged to take possession of the products and services at the moment that they are made available to it in accordance with the contract. If The Other Party refuses to take possession or fails to provide the information or instructions necessary for the delivery then HybriScan Technologies is entitled to store the items at the expense and risk of The Other Party.
TRANSPORT AND DELIVERY CONDITIONS – The transport and delivery of products shall take place in a way and to a location as determined by HybriScan Technologies.
Except as otherwise expressly agreed, transportation from HybriScan’s facilities shall be at The Other Party’s expense. Transportation charges shall be collect, or prepaid by HybriScan Technologies and billed to The Other Party at HybriScan’s option. Hybriscan Technologies will arrange for insurance on Product while in transit, at The Other Party’s expense, if requested by The Other Party. Shipping terms are Ex Works (EXW) if not otherwise agreed.
The Other Party shall be responsible for charges imposed on HybriScan Technologies if The Other Party wishes to have the products shipped in a different way than applicable for national or international transport.
The title rights and the risk of loss or damage to the products shall transfer to The Other Party at the moment that HybriScan Technologies transfers possession of the products to a carrier for the purposes of delivery of the products to The Other Party.
The Other Party is permitted to change the dispatch date provided that this is notified in writing no less than 60 days prior to the agreed dispatch date.
If, on the request of The Other Party, the products are to be retained by HybriScan Technologies beyond the agreed delivery date then this shall be at the risk and expense of The Other Party.
Except as otherwise noted, HybriScan Technologies or its representative will install Product without charge, and at time of installation HybriScan Technologies will provide such testing, on-site training and user manual as it reasonably deems necessary. HybriScan Technologies will furnish all labor, material, tools and transportation and lodging for HybriScan’s personnel for installation of the Product (not including third party items), and will provide The Other Party with the installation requirements. HybriScan Technologies has up to two (2) weeks from the date of arrival of the Product at The Other Party’s site to begin installation. The Other Party will furnish a safe and suitable place for installation of the Product in accordance with HybriScan’s standard procedures, specifications and requirements, including without limitation suitable site, environment and room configuration, prior to delivery of the Product. If The Other Party’s site is not ready by the planned delivery date, or if the site does not meet HybriScan’s published specifications, HybriScan Technologies is entitled to invoice The Other Party for the full purchase price and any applicable storage, insurance and any additional accrued freight costs. The Other Party can deliver to HybriScan upon four (4) weeks’ advance notice if his site is not ready for proper installation. In this case, HybriScan Technologies or its representative will give no additional charge to The Other Party.
In the event that subsequent to satisfying any specifications required hereunder, The Other Party causes the condition of the site to change such that the Product no longer meets the specifications, HybriScan Technologies shall have no obligation to meet the specifications previously attained.
CANCELLATION - Orders for HybriScan Microscopes and for research assignments can not be cancelled.
ARTICLE 4
GUARANTEES – The products to be supplied by HybriScan Technologies meet the customary requirements and standards that can be reasonably specified for these at the moment of delivery and as intended for normal use in The Netherlands. The guarantee referred to in this article is applicable to products intended for use in The Netherlands. For use outside of The Netherlands, The Other Party is directly responsible for verifying whether the product is suitable for use at the location outside of The Netherlands and whether it complies with the requirements specified for it at that location. In that case the User can specify other guarantee conditions and other terms and conditions in respect of the products to be supplied or the services to be performed.
The guarantee for HybriScan Technologies products is valid for a period of one year following delivery, unless the nature of the supply demands otherwise or the parties agree otherwise.
Each form of guarantee shall be cancelled if a breach results from or arises from improper or incorrect product use or use after the expiry date, incorrect storage or maintenance of the product by The Other Party and/or third parties when, without the written permission of HybriScan Technologies, The Other Party or third parties have made or have attempted to make modifications to the product, have mounted onto the product other (sub-)products that should not be mounted onto the product or have removed the serial number from the equipment or have broken it or if the product has been processed or treated in a different way than the prescribed way.
The Other Party shall not be able to rely upon a guarantee claim if the failure has been caused by or is the result of circumstances outside of the control of HybriScan Technologies, including weather conditions (such as, for example, though not exclusively, extreme rainfall or temperatures) et cetera.
HybriScan Technologies provides no guarantees for the use of experimental data that is acquired in its laboratory or that of The Other Party. HybriScan Technologies guarantees to The Other Party that the data that is acquired in its laboratory shall comply with generally accepted standards for scientific accuracy, precision and integrity.
Nonetheless, the validity of the experimental new project data is not guaranteed by HybriScan Technologies. After the end of the guarantee period, all costs for repair or replacement, including administration, shipping and call out fees shall be charged to The Other Party.
COMPLAINTS - If it is established that a product is faulty and a timely claim has been made in respect of this, then HybriScan Technologies shall, within a reasonable period of time after receipt of the returned product or, if return is not reasonably possible, following receipt of written notification regarding the fault by The Other Party, replace the product or undertake the repair of the product or pay replacement compensation for the product to The Other Party, this being at the discretion of HybriScan Technologies. In the event of replacement The Other Party must return the replaced product to HybriScan Technologies and provide HybriScan Technologies with title to the product, unless declared otherwise by HybriScan Technologies.
If it is established that a complaint is unfounded then the costs incurred by HybriScan Technologies as a result of this, including the investigation costs, shall be payable in full by The Other Party.
ARTICLE 5
RETENTION OF TITLE – All products supplied by HybriScan Technologies within the framework of the contract shall remain the property of HybriScan Technologies until The Other Party has correctly observed all obligations under the contract(s) or obligations entered into with HybriScan Technologies.
ARTICLE 6
LIABILITY - If HybriScan Technologies is held liable then such liability shall be limited to that which is stipulated in this clause.
HybriScan Technologies is not liable for any form of damage cause by incorrect and/or incomplete information provided to HybriScan Technologies by or on behalf of The Other Party.
If HybriScan Technologies is held liable for any form of damage then such liability on the part of HybriScan Technologies shall be limited to a maximum of the invoice value of the order, or at least to that part of the order to which the liability relates.
In any event, the liability on the part of HybriScan Technologies shall always be limited to the amount of payout from its insurer for the relevant incident.
HybriScan Technologies is only liable for direct damage. Direct damage only means the reasonable costs incurred to establish the cause and the extent of the damage, insofar as the establishment relates to damage in the sense of these General Terms and Conditions, any reasonable costs incurred to meet the inadequate performance of HybriScan Technologies under the contract, insofar as these can be attributed to HybriScan Technologies, and reasonable costs incurred to prevent or to limit the damage, insofar as The Other Party demonstrates that these costs have resulted in limitation of direct damage as intended in these General Terms and Conditions.
HybriScan Technologies is never liable for indirect damage, including consequential damage, loss of profit, loss of savings and damage due to business stoppage.
The limitations of liability contained in this article are not applicable if the damage is the result of an intentional act or gross negligence on the part of HybriScan Technologies.
ARTICLE 7
INDEMNITY -
1. The Other Party indemnifies HybriScan Technologies against any claims by third parties who suffer damage in relation to the performance of the contract and for which the cause is attributable to a party other than HybriScan Technologies.
2. If a claim is made against HybriScan Technologies for that reason by third parties then The Other Party is obliged to assist HybriScan Technologies in both legal and other proceedings and to immediately take all necessary steps that may be expected from The Other Party in that event. Should The Other Party remain in default of taking adequate measures then, without notice of default, HybriScan Technologies is entitled to take appropriate measures itself.
All costs incurred and damage suffered by HybriScan Technologies and third parties as a result of this shall be fully at the expense and risk of The Other Party.
ARTICLE 8
INTELLECTUAL PROPERTY - HybriScan Technologies retains the right and authority vested in it by virtue of the Copyright Act and other intellectual laws and legislation.
HybriScan Technologies also has the right to use the increased knowledge that it acquires from the quote made under the performance of the contract for other purposes insofar as no strictly confidential information belonging to The Other Party is made known to third parties.
HybriScan Technologies grants The Other Party the right to use the (patented) information referred to above for the sole purpose of using the products purchased by The Other Party or, if this concerns research (services), for the data and reports supplied by HybriScan to be used in all of its applications.
The Other Party shall not use or make public HybriScan’s (patented) information for any purpose other than that which is agreed with HybriScan Technologies, which also includes:
- the development, designing, production, (reverse) engineering, copying, re-making, buying or selling of products or product parts or components of products, derived or equivalent parts, etc.;
- assisting a third party in any way with the performance of such activities.
ARTICLE 9
FORCE MAJEURE - HybriScan Technologies is not obliged to observe any obligation towards The Other Party if it is prevented from doing so as a result of a situation that is not attributable to blame, and neither for which it is responsible by virtue of the law, a legal act or under generally accepted practices.
In these General Terms and Conditions force majeure means, in addition to that which is understood in law and jurisprudence, all external causes, foreseen or unforeseen, that are beyond the control of HybriScan Technologies and as a result of which HybriScan Technologies is unable to meet its obligations. This includes industrial action at HybriScan Technologies or at third parties. HybriScan Technologies also has the right to invoke force majeure if the situation that prevents (further) observance of the contract occurs after HybriScan Technologies should have met its obligations.
HybriScan Technologies can suspend its obligations under the contract for the period that force majeure continues. If this period lasts longer than two months then either of the parties has the right to terminate the contract without being liable to pay compensation for damages to the other party.
Insofar as HybriScan Technologies has partially observed or shall be able to partly observe its obligations under the contract at the time that the force majeure situation occurs, and an independent value can be attributed to the observed or to be observed part, then HybriScan Technologies has the right to raise a separate invoice for the part already observed or the part to be observed. The Other Party is obliged to pay this invoice as if it were a separate contract.
ARTICLE 10
APPLICABLE LAW AND DISPUTES – All legal relationships to which HybriScan Technologies is a party are subject exclusively to Dutch law, also in the case that an obligation is performed entirely or partially abroad or if The Other Party involved in the legal relationship is domiciled abroad. Applicability of the Vienna Sales Convention is expressly excluded.
The court in the domicile of HybriScan Technologies has exclusive jurisdiction to hear disputes, unless prescribed otherwise as mandatory under law. Nevertheless, HybriScan Technologies has the right to put the dispute before the competent court prescribed by law. The parties shall only revert to the courts after they have made every effort to resolve a dispute through mutual consultation.