GENERAL TERMS AND CONDITIONS
In these General Terms and Conditions:
1.1. “Agreement” any oral or written agreement between Tide and the Customer, under which Tide has agreed to provide Products and/or Services to the Customer.
1.2. “Customer” the natural or legal person with whom Tide has entered into, or intends to enter into an Agreement.
1.3. “Party” Tide and the Customer(s), together the “Parties” that have entered into an Agreement.
1.4. “Product” means the System and/or sample volumes and customer specific microbubbles in low volumes produced in Tide’s facilities by use of in-house production platforms.
1.5. “Services” all the activities to be performed by Tide under the Agreement, including, but not limited to:
a) Consultation on the use of microfluidic systems for the production of microparticles;
b) Feasibility studies to validate the use of our systems for the creation of customised microbubbles and microdroplets of uniform size and consistency;
c) Small-scale on-demand production of customised microbubbles and microdroplets of uniform size and consistency;
d) Practical assistance with system integration and providing general or application-specific training;
e) Scheduled periodic system maintenance and enhancement.
1.6. “Tide” Microfluidics B.V., the user of these General Terms and Conditions, with registered office at Capitool 41, 7521 PL Enschede, listed in the Trade Register under Chamber of Commerce number 57292671.
1.7. “Software” means all software on the System pre-installed by Tide and licensed to the Customer in relation to the use of the Products.
1.8. “System” means the microbubble or microdroplet production systems developed by use of Tide’s proprietary microfluidic platform technology.
2. GENERAL PROVISIONS
2.1. These General Terms and Conditions apply to any and all offers made by Tide, and any Agreement between Tide and the Customer (whether supply, rental or services), insofar as Parties have not deviated, expressly and in writing, from the contents of these General Terms and Conditions.
2.2. These General Terms and Conditions supersede any and all prior oral and written quotations, communications, agreements and understandings of the Parties.
2.3. By entering into an Agreement on the basis of these General Terms and Conditions, the Customer agrees to the applicability thereof in respect of future Agreements even if this is not expressly stated.
3. OFFER AND FORMATION OF THE AGREEMENT
3.1. Unless explicitly stated otherwise, offers made by Tide are without obligation.
3.2. Tide prepares the offer based on the information supplied by, or on behalf of the Customer. The Customer cannot derive any rights from an offer that is based on incorrect or incomplete information supplied by, or on behalf of the Customer. Any information with regard to expected results or performance supplied through the offer of Tide is indicative and not binding.
3.3. The Agreement shall take effect as soon as the Agreement made between the Parties has been signed by the Customer and made available to Tide.
3.4. If, and insofar as Tide has not yet received the signed Agreement, then the Agreement will be considered as concluded under these General Terms and Conditions, as soon as Tide has started to perform any Services at the Customers request, orally or in writing.
4. CUSTOMERS OBLIGATIONS
4.1. Customer shall timely and appropriately provide Tide with any and all documentation and information (“Customer Information”) that Tide requires for the proper and timely performance under the Agreement, and do so in an appropriate and timely manner.
4.2. The Customer guarantees the accuracy, completeness and reliability of the Customer Information provided to Tide, even if this has been obtained from third parties.
4.3. Customer guarantees that it is entitled to disclose to Tide the Customer Information and that the Customer Information is no proprietary information of any third party.
4.4. Any additional costs and/or damage caused by a delay in the execution of the Agreement as result from the Customer’s failure to (timely) provide Tide with the requested information and documentation will be borne by the Customer.
5. EXECUTION OF THE ENGAGEMENT
5.1. All Services to be rendered and/or Products to be delivered by Tide to the Customer are described in the Agreement.
5.2. Tide will render all Services and/or delivery of Products with reasonable skill, care and diligence, in accordance with the Agreement, and professional standards.
5.3. Tide shall carry out its obligations under the Agreement with due observance of the applicable (inter)national laws and regulations. Tide shall not, under any circumstance, be required to commit any act or omission that is in conflict or incompatible with the aforementioned laws and regulations.
5.4. Tide will determine the manner in which the Agreement will be executed and by whom, and will be entitled to engage third parties as subcontractor in the execution of the Agreement without any notice to the Customer.
5.5. In the event that Tide seconds its employees and/or the employees of its affiliates, and/or the employees of third parties engaged by Tide to the Customer for the performance of Services, such secondment will take place under art. 7:400 of the Dutch Civil Code.
6. DELIVERY PERIOD
6.1. If Tide requires an advance payment or requires information or materials to be made available by the Customer in order to execute the Agreement, term(s) for the completion of the Service(s) will not take effect until the advance payment has been made in full or until all information or materials have been made available by the Customer.
6.2. Delivery of Products shall take place ex Works Tide facilities, Enschede, the Netherlands, in conformity with the conditions of the latest version of Incoterms published by the International Chamber of Commerce as applicable on the date of the Agreement.
6.3. Any times or dates set forth in the Agreement for the delivery of the Products or rendering of the Services are indicative and not binding, unless this has been agreed upon in advance and in writing.
6.4. Title to the Products, as set forth under Section 5.1, will remain with Tide until Customer has paid to Tide all outstanding amounts under the Agreement.
7. PRODUCTS & WARRANTIES
7.1. In the event that the Customer rents a Product, Customer acknowledges and accepts that the use of the Products will be subject to the conditions laid down in Section 8 of these General Terms and Conditions.
7.2. Subject to Section 7.2, Tide warrants that during 1 (one) year from delivery of the Product to the Customer, the Product meets the agreed specifications for the Product on the date of delivery of the Product, provided that the Products are transported, stored and used by Customer in a laboratory setting in accordance with the instructions for use provided by Tide and, furthermore provided, that normal wear and tear of the Product is excluded.
7.3. The warranty granted by Tide under Section 7.2 will forthwith cease to have effect if (i) the Product and/or Software is modified, revised engineered, re-assembled or repaired by the Customer (other than with consent of Tide), or (ii) disposables or microfluidic chips have been used with the Product that have not been provided by Tide, or (iii) in the event of improper use of the Products other than in accordance with the instructions provided by Tide or (iv) if complaints regarding the proper functioning of the Product have not been notified to Tide within fourteen (14) days after such improper functioning was known or should reasonably have been known to Customer.
7.4. Tide does not make any warranties, express or implied, by operation of law or otherwise, other than set out in Section 8.2. Without limiting the foregoing, Tide specifically disclaims all implied warranties of title, non- infringement, merchantability and fitness for a particular purpose.
8.1. The rental period and the Products to be rented by Tide to the Customer are described in the Agreement.
8.2. The Customer may request an extension of the rental term at any time prior to the end of the term.
8.3. The Customer may be required to pay a refundable deposit to Tide at the commencement of the rental term, prior to delivery of the Product. The sum of the deposit shall be set out in the Agreement.
8.4. Customer agrees to use the Product for legal and legitimate purposes for which it is intended. The Product must be used in accordance with any and all operation and safety instructions or similar documentation provided by Tide. The Customer shall at all times treat the Product with a reasonable level of care and shall ensure that it is kept in order, subject to reasonable levels of wear and tear.
8.5. Customer will not (i) lien, charge or encumbrance the Product and/ or Software, or (ii) modify, revise engineer, re-assemble or repair the Product and/or Software (other than with consent of Tide), or (iii) use disposables or microfluidic chips in the System that have not been provided by Tide, or (iv) use the System other than in accordance with the instructions provided by Tide.
8.6. Tide reserves the right to recall the Product immediately at any time. In the event that Tide exercises this right the Customer will be reimbursed for any and all days remaining in the rental term or will be issued immediately with replacement of a new Product thereto at no additional cost. If the Product is not returned to Tide on request the Customer shall be deemed to have authorised Tide use any means necessary to recover the Product. The Customer shall be charged for any costs associated with such recovery.
8.7. At the end of the rental term Tide shall have a period of one week within which to fully inspect the rented Product. If the Product requires maintenance which is the result of normal wear and tear the Customer will receive the deposit back in full at the end of the inspection period. In the event that additional maintenance is required Tide shall retain the deposit in full or in part as appropriate and shall provide the reasons for such retention to the Customer in writing, including all relevant calculations and pricing information.
9.1. Tide shall keep secret, and shall not disclose any information of a confidential nature (“Confidential Information”), including Customer Information of the Customer obtained in relation to the Agreement or during its execution. Tide shall procure that its employees, affiliates or third parties engaged by Tide, will keep secret and not disclose such Confidential Information.
9.2. The foregoing shall not apply to Confidential Information which (i) is or becomes part of the public domain without fault on the part of Tide; (ii) was already known by Tide, other than under an obligation of confidentiality, at the time of disclosure by the Customer; (iii) is lawfully acquired by Tide from a third party on a non-confidential basis; or (iv) confidential information that Tide is required to disclose pursuant to any law, lawful governmental, quasi-governmental, judicial order or legal process.
Customer allows Tide within the scope of the Agreement to process Confidential Information concerning the Customer and/or its employees, affiliates and Customers or third parties, and allows Tide, under confidentiality, to share the Confidential Information with (i) Tide’s employees that have a need to know in view of the Services and, if required, (ii) a third party subcontractor it wishes to engage for activities under the Agreement
9.3. Tide will process any personal data of the Customer in accordance with the applicable (inter)national laws and regulations concerning the protection of personal data.
9.4. Customer will not disclose any of Tide’s Confidential Information or provide third parties with any information concerning the Agreement, the content of reports, opinions or any other written or oral statements issued by Tide without its prior, written consent, except if required by (inter)national laws or regulations.
9.5. Parties will impose their obligations under this Article 9, to any third party engaged by them.
10. INTELLECTUAL PROPERTY
10.1. All improvements to Tide’s background technology (including the System) and Products, and all files, software, data and information developed or provided by Tide, and any know-how, methodologies, or processes used or developed by Tide to provide its Products and/or Services to the Customer under the Agreement that are of general applicability, and any copyrights, trademarks, patents, trade secrets, or any other proprietary rights thereon (“Tide’s Intellectual Property”) remain the sole and exclusive property of Tide, or the third parties engaged by Tide.
10.2. Tide grants Customer a non-exclusive, non-assignable license to use Software, including any related documents and updates, for no other purpose than that of operating the Product, for which the Software is intended (no source programs will be provided).
10.3. In the event that Software is created and delivered at the Customer’s request, Tide shall grant the Customer a single end-user license for non-exclusive, non-assignable exploitation.
10.4. Customer is explicitly prohibited to reproduce, publish or use for commercial purposes any Intellectual Property of Tide without Tide’s prior written consent.
10.5. Customer will, fully and freely, own the results of the research performed trough use of the Products and/or Services rendered.
11. FEES AND EXPENSES
11.1. Customer shall pay to Tide the fees specified in the Agreement.
11.2. Prices and fees specified in the Agreement do not include (i) actual, reasonable travel and out-of-pocket expenses, (ii) expense claims filed by third parties engaged by Tide, (iii) value added tax and (iv) other government levies, unless stated otherwise in the Agreement. Customer will reimburse Tide for such additional expenses and costs.
11.3. If, between the signing of the Agreement and its completion, any parameter relevant to the calculation of the fee will be subject to change, Tide will have the right to adjust the fee accordingly.
11.4. Unless otherwise stated in the Agreement, payment will be made, without any deduction, discount or debt settlement, within fourteen (14) days of the date of invoice, submitted monthly in arrears, for Services rendered and/or Products delivered. Payment shall be into the bank account mentioned in the invoice.
11.5. Customer will pay a late fee of 8% (eight per cent) per annum (or a monthly equivalent) or the highest rate allowed under the law, whichever is lower, on any overdue amounts. Customer also agrees to pay Tide all reasonable costs and expenses of collection, including attorneys’ fees.
11.6. If any facts or circumstances give Tide good reason to fear that the Customer will not fulfil its obligations under the Agreement, or will not fulfil them (or have them fulfilled) in full, the Customer shall, immediately at the request of Tide provide sound security (in the form of pledge, surety or otherwise) for the payment(s) owed and/or make an advance payment. If the Customer fails to provide such a security or advance payment, Tide has the right to immediately suspend (further) execution of the Agreement, and all amounts owed by the Customer will become immediately due and payable.
11.7. In the event of a jointly commissioned Agreement, all Customers are jointly and separately liable for payment of the full fee charged under the Agreement.
12.1. Customer must notify Tide in writing of any complaints relating to the Services rendered and/or the Products delivered and/or the invoice amount within 45 (forty-five) days of the date of after such shortcoming should have been reasonably known to Customer in respect of which a complaint is filed, subject to Section 7.3 (iv).
12.2. Complaints as referred to in Section 12.1 shall not suspend the Customer’s obligation to pay any fee, or additional costs, due. The Customer is not entitled, by virtue of a complaint in respect of a certain Service and/or Product, to defer or refuse payment for other Services rendered and/or Products delivered by Tide to which the complaint does not relate.
12.3. If Tide determines that the Customer has filed a legitimate and timely complaint, the Customer may choose an adjustment of the fee charged or to terminate the Agreement and receive a (partial) refund of the fee already paid.
13. TERM AND TERMINATION
13.1. Except as otherwise provided in the Agreement, the Agreement shall expire at the moment that all Products have been delivered and all Services have been executed and completed, unless the Agreement is terminated as provided in Article 13.2.
13.2. Either Party may forthwith terminate this Agreement upon prior written notice upon:
a) the breach of any material provision of this Agreement by the other Party if (i) such breach is not curable or (ii) if curable, the breaching Party has not cured such breach within 30 (thirty) day period following receipt of a written notice by the non-breaching Party substantiating such breach (“ingebrekestelling“);
b) the filing or institution of bankruptcy, liquidation or receivership proceedings of the other Party or in the event a receiver or custodian is appointed for the other Party’s business, or if its business is discontinued.
13.3. If the Customer chooses to terminate the Agreement prior to its completion, the Customer is obliged to pay the fee for any Services rendered and Products delivered by Tide until the effective date of termination. Customer shall, furthermore, reimburse to Tide all (out of pocket and internal) costs that will be reasonably incurred by Tide after the effective date of termination of the Agreement pursuant to commitments entered into by Tide prior to the effective date of termination provided, however, that Tide will use commercially reasonable efforts to mitigate such costs.
13.4. The terms of Article 9 of these General Terms and Conditions shall survive 5 (five) years after termination or expiration of the Agreement. Articles 10, 11, 14 and 16 shall survive for an indefinite period of time. In addition, any other provisions which are required to interpret and enforce the Parties’ rights and obligations under the Agreement shall also survive any termination or expiration of this Agreement, but only to the extent required for the full observation and performance of the Agreement.
13.5. Tide will, at request of the Customer, return all information and documentation provided by the Customer upon termination or completion of the Agreement.
14. LIABILITY AND INDEMNIFICATION
14.1. In no event will Tide be liable to Customer for any indirect loss, claim, damage, liability or expenses (including reasonable attorney’s fees) (“Losses”), including lost profits, and damage due to the stagnation of business operations caused by the performance of Tide or the third parties engaged by Tide in the execution of the Agreement, unless for and to the extent that such loss or damages are due to negligence or wilful misconduct on the part of the Tide. If, despite the provisions in these General Terms and Conditions, liability exists anyway, only direct damage will be eligible for reimbursement.
14.2. Save for gross negligence or wilful misconduct of Tide or its officers, or the third parties engaged by Tide in the execution of the Agreement, any and all liability of Tide (including its indemnification obligation) is limited to an amount equal to the fee paid or owed by the Customer for the specific Service or Product order from which the liability arises. In any event, a claim will be unenforceable and lapse unless Tide receives a written notice thereof no later than 6 (six) months after the discovery of an event or circumstance that gives or may give rise to that claim.
14.3. Any and all Agreements are accepted and executed exclusively by Tide or on its behalf. Any right of indemnification or action by the Customer should be brought directly and exclusively to Tide.
14.4. Customer will indemnify, and hold harmless Tide or the third parties engaged by Tide in the execution of the Agreement, from and against any and all Losses caused by:
a) any inaccuracy or incompleteness in the Customer Information provided by it or on its behalf;
b) a delay in the delivery of Customer Information provided by it or on its behalf;
c) any other failure in the performance of the obligations of the Customer under the law, these General Terms and Conditions or the Agreement;
d) circumstances which cannot be attributed to Tide otherwise.
14.5. Except where wilful misconduct or gross negligence of Tide is concerned, the Customer shall indemnify Tide against all third party claims on any grounds whatsoever in respect of compensation for any Losses, directly or indirectly related to the performance of the Agreement.
14.6. Neither Party shall be liable in any way for any Losses arising out of or in connection with any delay, restriction, interference or failure in performing any obligation towards the other Party caused by any circumstance beyond its reasonable control. Upon the occurrence of any such event, the party suffering thereby shall promptly inform the other party by written notice thereof specifying the cause of the event and how it will affect its performance. The Party not affected by the force majeure is entitled to terminate the Agreement upon one month written notice.
14.7. Customer shall, during the execution of the Agreement and a year thereafter, attempt to entice away, conduct negotiations on employment or employ persons who are or were involved in the execution of the Agreement on behalf of the other Party.
15.1. Parties may communicate with each other by electronic mail. Parties recognise the risks associated with electronic mail including, but not limited to, distortion, delays, interception, manipulation and viruses. Parties hereby declare that they shall not hold each other liable for any damage incurred by either of them as a result of the use of electronic mail. This also applies to the use of electronic communication between us and – irrespective of the form – third parties including, but not limited to the Dutch tax authorities. The parties shall do or omit all that can reasonably be expected of them to avoid such risks. If a Party should be in doubt as to the content of an electronic message received, the content of the message originating with the sender shall be decisive.
15.2. The invalidity or unenforceability of any provision of this Agreement shall not affect or limit the validity or enforceability of any other provisions hereof. Any such invalid or unenforceable provision shall be replaced or deemed to be replaced by a provision that is considered to be valid and enforceable. The interpretation of the replacing provision shall be as close as possible to the intent of the invalid or unenforceable provision.
15.3. In case of conflict between these General Terms and Conditions and the Agreement, the provisions of the Agreement shall prevail.
15.4. Changes to these General Terms and Conditions can only be agreed upon in writing in the Agreement.
15.5. The Customer cannot assign the Agreement, or any obligation therein, to a third party without the prior written consent of Tide, not to be unreasonably withheld.
16. GOVERNING LAW AND JURISDICTION
16.1. These General Terms and Conditions, any and all Agreements and any and all offers made by Tide are exclusively governed by the law of the Netherlands. The United National Convention for Contracts on the International Sale of Goods is expressly excluded.
16.2. Any disputes arising out or in connection with an Agreement, which cannot be solved amicably within a reasonable period of time, will be submitted to the competent court in Amsterdam in the event of a Customer that resides within the European Union. In the event of a Customer that has its principal place of business outside the European Union such disputes shall be finally settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute in Amsterdam, the Netherlands. Location shall be Amsterdam. The arbitration shall be conducted in the English language.
17. FINAL PROVISIONS
17.1. These General Terms and Conditions have been filed at the office of the Trade Register of the Chamber of Commerce for Enschede, The Netherlands under nr. 57292671, July 2015. These General Terms and Conditions can also be downloaded from the website of Tide: www.tidemicrofluidics.com.