GENERAL CONDITIONS OF MOLECULAR BIOLOGY SYSTEMS B.V.
Effective January 1, 2017
1.1 These conditions apply to all offers by and all orders to Molecular Biology Systems for the sale and delivery by Molecular Biology Systems of all goods, equipment, chemicals, Software, documents and documentation (hereinafter collectively: “the Equipment”).
1.2 In these conditions Software is defined as: all computer-programs and databases, including all updates, new releases, enhancements, alterations and modifications therein and thereof.
2. OFFERS, ORDERS AND AGREEMENTS
2.1 All offers from Molecular Biology Systems are non-binding (“vrijblijvend”).
2.2 Molecular Biology Systems is only bound when it has accepted an offer in writing or has begun implementation. Molecular Biology Systems is only bound as was accepted in writing. Verbal commitments or agreements by or with its personnel do not bind Molecular Biology Systems except and insofar as Molecular Biology Systems confirms these in writing.
3.1 Molecular Biology Systems grants to the customer a non-exclusive and non-transferable right to use the Software. This right to use does not constitute a transfer of any intellectual property right, which rights remain vested in Molecular Biology Systems. The customer may copy the Software for its own use only.
3.2 The right to use the Software is restricted to the customer’s own use and excludes use by other individuals or companies including group companies and subsidiaries of the customer.
3.3 The customer shall not disclose or otherwise permit any other person or party access to the Software or copies thereof.
4.1 Prices set by or agreed to with Molecular Biology Systems are net, therefore exclusive of V.A.T., among other things, and are valid only for the delivery ex works of unpacked Equipment. They are also exclusive of the costs of loading, transport, unloading, insurance, installation, assembly and/or other services.
5. DELIVERY AND TRANSFER OF TITLE
5.1 The Equipment will be delivered by Molecular Biology Systems ex works.
5.2 Molecular Biology Systems has the right to deliver in parts.
5.3 In case of failure to deliver within the delivery period Molecular Biology Systems shall have no liability for damages. In such event the customer is entitled to rescind the agreement by a written declaration, if and insofar as after the above-mentioned failure to deliver, Molecular Biology Systems still fails to deliver the agreed upon Equipment within a reasonable period as agreed to with the customer in writing.
5.4 All Equipment delivered by Molecular Biology Systems remains the property of Molecular Biology Systems until such time as the customer has paid in full all that which is owed to Molecular Biology Systems in connection with the underlying agreement and/or earlier or later agreements, including damages, costs and interest. The customer has no right of retention.
6. ACCEPTANCE AND INSPECTION
6.1 The customer shall co-operate without delay in any inspection or test agreed upon. If the customer does not co-operate in the inspection or test on time or at the agreed upon time, the objects will be deemed to have been approved.
6.2 Molecular Biology Systems is entitled to compensation from the customer for damages and costs, which are the consequence of refusal of or delay in the inspection, testing or acceptance.
7. FORCE MAJEURE
7.1 Molecular Biology Systems is entitled to invoke force majeure if the implementation of the agreement is, in whole or in part, temporarily or not, prevented or impeded by circumstances reasonably out of its control, including site or building blockades, strikes, specific work interruptions or work-to-rule slowdowns and lockout, delay in the provision to Molecular Biology Systems of parts, Equipment or services ordered from third parties other than by circumstances to be imputed to Molecular Biology Systems, accidents and interruptions of business operations.
7.2 In the case of force majeure on the part of Molecular Biology Systems, its obligations are suspended. If the force majeure lasts longer than three months, Molecular Biology Systems and the customer are both authorised to rescind the non-feasible parts of the agreement by a written declaration.
8.1 Molecular Biology Systems guarantees that the Equipment is free from defects in construction, materials and workmanship and will perform in substantial conformity with the functions and specifications.
8.2 The guarantee period is 2 (two) years. Claims must be made within 14 days after their appearance. Claims made thereafter will not be considered.
8.3 In case of defects in the Equipment (excluding the Software) which appear during the guarantee period and for which claims are submitted in time, Molecular Biology Systems will either redeliver at no cost the Equipment, or repair the Equipment at no cost, or credit the customer as far as reasonable in whole or in part for the invoice value of the Equipment, all of this at Molecular Biology Systems’s option.
8.4 Any right to a guarantee lapses if:
a. the directions given by Molecular Biology Systems for storage, placement, testing, installation, assembly, monitoring, maintenance, and/or use are not followed exactly;
b. the delivered Equipment is used improperly or other than in conformity with the agreed to or usual purpose;
c. the Equipment has been modified by the customer or a third party without the prior written consent of Molecular Biology Systems;
d. the customer has not fulfilled any of its obligations towards Molecular Biology Systems arising from the underlying agreement, or has not fulfilled them adequately or on time.
8.5 For Equipment or parts of thereof which Molecular Biology Systems procures from third parties, the guarantee obligations of Molecular Biology Systems towards the customer are never greater or of longer duration than the guarantee obligations of those third parties toward Molecular Biology Systems. Molecular Biology Systems will be discharged with respect thereto when it transfers its claim on the third party to the customer.
8.6 The customer shall enable Molecular Biology Systems at its request to carry out its obligations pursuant to this article 9.
8.7 The foregoing warranties set forth the full extent of Molecular Biology Systems’s obligations with respect to the performance, capabilities, or quality of the Equipment and the performance of Molecular Biology Systems’s services provided hereunder and except as herein provided all other terms, conditions and warranties, express or implied, including, but not limited to, any implied terms and conditions as to merchantable quality and fitness for a particular purpose or the like are hereby excluded.
8.8 After expiration of the warranty period defects shall only be corrected under a separate agreement.
9. LIABILITY AND INDEMNIFICATION
9.1 Molecular Biology Systems’s liability is limited to the performance of the guarantee described in the previous article.
9.2 Molecular Biology Systems shall have no liability for any direct, indirect, consequential damages (including but not limited to loss of profit and anticipated savings), even if Molecular Biology Systems is advised of the possibility of such loss or damage occurring.
9.3 In the event that the above limitation of liability is held invalid and Molecular Biology Systems becomes liable, such liability will never be higher than €10,000.– (ten thousand Euro’s) or, if the damage is covered by an insurance policy of Molecular Biology Systems’s, the amount that is actually paid out by the insurer with respect thereto, whichever is higher.
9.4 Any claim toward Molecular Biology Systems, except those recognised by Molecular Biology Systems, lapses after a period of 6 (six) months from the time the claim arose.
9.5 The customer will hold harmless and indemnify Molecular Biology Systems for each claim from third parties in connection with the use of the Equipment.
10. PAYMENT AND SECURITY
10.1 Payment must take place within 30 (thirty) days after the invoice date. Molecular Biology Systems has, however, at all times the right to claim full or partial payment in advance, and/or otherwise to obtain security for payment.
10.2 If the customer does not pay any amount it owes pursuant to the foregoing, it is in default without notice. As soon as the customer is in default on any payment, all Molecular Biology Systems’s remaining claims on the customer are due, and the customer is immediately in default without notice with respect to those claims. As from the day on which the customer is in default, he owes to Molecular Biology Systems late interest of the then current debit rate plus (2) two percent, per month or part of a month during which the default continues.
11.1 Either party shall be entitled to terminate an agreement effective immediately by notice sent by registered mail in the event of any breach of or failure to comply with any of the terms or conditions of this agreement by the other party, which breach or failure, if capable of remedy, is not remedied within 30 days after notice form the aggrieved party demanding such remedy or if the other party to this agreement reaches the agreement to such an extent that such breach can not be remedied or if it is of such a nature that the aggrieved party can not reasonably expect or demand the other party to continue to perform.
12. DISPUTES AND APPLICABLE LAW
12.1 All disputes existing between the parties shall be heard exclusively by the competent court in Rotterdam, and higher courts, unless Molecular Biology Systems prefers another competent forum or prefers arbitration. In the latter case all disputes shall be finally settled in accordance with the Rules of the Netherlands Arbitration Institute (“Nederlands Arbitrage Instituut”). The arbitral tribunal shall be composed of one arbitrator. The place of arbitration shall be Rotterdam, the Netherlands and the arbitration shall be conducted in English.
12.2 The agreements between Molecular Biology Systems and the customer are subject to Dutch law.