- In these General Terms and Conditions, ‘LHM’ refers to the private limited liability company Laboratorium Healthcare Medical B.V. (Chamber of Commerce registration number 82611335), registered in Eindhoven, the Netherlands.
- In these General Terms and Conditions, ‘Customer’ refers to every natural person or legal entity that has contracted an agreement with LHM, via its website or otherwise, or that wishes to do so, as well as to his/her/its (authorised) representative(s) and legal successor(s).
- These General Terms and Conditions apply to all quotations, offers, (sale and/or services) contracts, deliveries, services and products of LHM as well as to all (additional) agreements between LHM and a Customer.
- Additions to and/or derogations from these Terms and Conditions apply only if LHM has agreed these with the Customer in writing. The Customer cannot derive any rights for future transactions from any agreed additions to and/or derogations from these Terms and Conditions.
- Additional and/or differing conditions of the Customer do not form part of the agreement between LHM and the Customer and LHM is therefore not bound by these, unless LHM has accepted the Customer’s conditions, partially or in full, in writing.
III. QUOTATIONS/CONTRACTING OF AGREEMENTS
- All quotations of LHM should be regarded as an invitation to potential Customers to make an offer. The offers are therefore without obligation and are not binding on LHM. If a fixed quotation is issued, this is valid for the term shown in the quotation. If the validity term is not mentioned, the quotation in any event lapses after four weeks.
- An agreement is not contracted until the time at which LHM confirms the Customer’s order in writing (including email).
- Agreements are always contracted subject to the condition that, in LHM’s opinion, information obtained by LHM shows adequate creditworthiness of the Customer.
- The Customer guarantees that the request or order information that it provides to LHM is accurate and complete.
- In the event that the research or analyses is to be performed on the basis of samples, the Customer will solely be responsible for selection and identifications such as codes, markings and product names, unless – by explicit agreement – the samples have been drawn by, or were drawn under the responsibility, of LHM.
- Statements of delivery dates are approximate and are not binding on LHM. LHM is not in default in respect of delivery terms until it has been issued written notice of default by the Customer, granting LHM an opportunity to deliver within a reasonable term and LHM has failed to do so.
- Failure to meet the agreed delivery term does not afford the Customer the right to claim compensation for damage in any form whatsoever. Only in the event of an excessive overrun (more than four weeks) of the agreed delivery date does the Customer have the right to dissolve the contract, unless the delay is due to force majeure. Under no circumstance does the Customer have any claim to any penalty or damage.
- The Customer is responsible for the risks and losses and/or damages during transportation of the products.
- All prices are quoted net and exclusive of VAT, shipping and packaging costs unless explicitly agreed otherwise in writing.
- All prices are based on the current cost price factors at the time of the quotation, including material prices, wage costs, transportation costs and exchange rates.
- If one or more of these cost price factors rises before delivery as a result of price increases or changes, LHM has the right to increase the prices. This also applies if this increase was foreseeable at the time of contracting.
- If an agreement includes a permanent or periodic activity or the performance of an assignment extends over a period of more than six months, LHM may adjust the agreed rates to the changed wage and material costs.
- LHM shall notify the Customer of the price increase in writing, without delay.
- If the cost price increase referred to in paragraph 3 or 4 amounts to more than 15%, however, the Customer has the right to cancel the order within three working days of the date on which it receives notice of this. Unless otherwise agreed, the cancellation must take place in writing, by registered mail. Dissolution of the contract pursuant to this Article under no circumstance affords the parties the right to compensation for damage in any form whatsoever.
- If a price is agreed by LHM and a Customer in a currency other than the euro, the conversion rate to the euro on the date of delivery applies.
- All prices shown in the website and in LHM quotations are subject to reservation of programming, typing or writing errors.
VI. RESEARCH SERVICES
- The transport of samples is at the expense and risk of the Customer until the moment of receipt of those samples by LHM. Customer will make sure that samples are properly packed and identified, this in accordance with applicable laws and safety regulations. LHM reserves the right to refuse samples that lack proper packaging and / or identification.
- LHM shall document the results of the research that is has conducted in a research report or certificate. The results of research or analysis stated therein only relate to the specimens or quantities examined that the Customer has provided, unless the taking of samples has also been expressly been assigned to LHM.
- Unless otherwise agreed at the time of acceptance of the quotation, samples forming the subject of the research or analysis, will – as far as reasonably feasible – be kept in storage for two (2) weeks after the date at which the findings have been reported. Costs for aforementioned storage will be deemed incorporated in the agreed rate(s). Unless agreed otherwise, no particular conditions or obligations pertaining to the storage of samples will be applied.
- The Customer will only use the results of LHM research services for its own purposes. The further use of results and / or advices from LHM, and in particular the inclusion or processing thereof in products or services intended for third parties, always takes place under the responsibility and risk of the Customer.
- For reasons of confidentiality LHM will maintain utmost reluctance in exchanging analytical findings with third parties. In the event of parametric determinations being reported in excess of national or supra national permitted maximum residue or tolerable limits with regard to environmental, food or feed safety legislation, LHM deems it to be the primary responsibility of the Customer to report such findings to the appropriate authority should legal provisions so require.
- LHM has the right to have certain activities performed by third parties. The applicability of articles 7:404, 7:407 sub 2 and 7:409 of the Dutch Civil Code (BW) are explicitly excluded.
VI. RESERVATION OF OWNERSHIP OF PRODUCTS
- LHM retains ownership of all products delivered by LHM to the Customer. Ownership of the products is transferred to the Customer as soon as the Customer has met all its payment obligations (including if delivery takes place in parts).
- Until the Customer has met all its payment obligations (inclusive interest and costs), it is not permitted to dispose of, encumber or rent the products delivered by LHM subject to reservation of ownership, or to establish any right of security regarding these products.
- In the event of late payment by the Customer, LHM shall have the right to recover the sold products without any summons, notice of default or intervention of a court, without prejudice to LHM’s other rights in relation to late payment. The Customer shall make the sold products available to LHM and if necessary, shall grant LHM access to all areas in which the products of LHM are located.
- LHM has the right at all times to require full or partial prepayment of the Customer. Regarding to all other sales, the invoiced amount must be paid, at LHM’s choice, either immediately on delivery or within fourteen (14) days of the invoice date, with no deductions, settlement of receivables or discounts.
- In the event of failure to pay promptly, the Customer is legally in default from the expiration date of the payment term, which, without prejudice to any other rights accruing to LHM, results in:
- All other outstanding receivables of LHM in the name of the Customer becoming payable on demand;
- LHM acquiring the right, from the commencement of the default, to charge interest on the amount payable at the legal rate applying at that time for commercial transactions, or with a minimum of 1% per month, with the time being calculated in full months;
- All legal and out-of-court costs to be incurred by LHM, including collection costs of 15% of the outstanding invoice amount (with a minimum of €300), being borne by the Customer, with no provision of evidence that these costs have been incurred being required.
- If LHM sees reason to do so, LHM may, on or after contracting of the agreement, require further surety in relation to compliance with both the payment obligations and the other obligations of the Customer. If the Customer fails to provide the required surety, LHM has the right, without prejudice to its other rights, to suspend (further) execution of the contract and ultimately, to dissolve the contract, partially or in full, without notice of default or the intervention of a court, without prejudice to LHM’s right to compensation for any damage suffered by LHM.
VIII. SUSPENSION AND TERMINATION OF THE CONTRACT
- LHM reserves the right to terminate the contract(s) with the Customer with immediate effect, without the intervention of a court, or to suspend the (further) execution of the contract(s) by a reasonable term, without being liable for any compensation for damage, if the Customer:
- Is declared bankrupt or becomes subject to a mandatory liquidation order, applies for a moratorium on payments or a bankruptcy or mandatory liquidation order or is placed in receivership;
- Fails to comply with any contractual (payment) obligation, or fails to do so correctly or promptly;
- Loses free disposal of its assets or, if the Customer is a natural person, is placed under tutelage, is declared subject to the Debt Rescheduling (Natural Persons) Act, or dies.
- All receivables of LHM from the Customer at the time of the existence of one or more of the circumstances referred to in paragraph 1 shall become payable on demand, without prejudice to LHM’s right to claim full compensation for damage or for loss of earnings and any compensation for costs of legal aid in and out of court.
IX. FORCE MAJEURE
- ‘Force majeure’ is deemed to include (but not limited to) the situation in which LHM, due to exceptional circumstances, such as restrictive government measures of any kind whatsoever, mobilisation, war, revolution, traffic restrictions, malfunctions in a (telecommunications) network or connection or communication systems used and/or the unavailability at any time of the website or transport problems and any and all circumstances that LHM either could not have foreseen or over which it has no influence or are beyond LHM’s reasonable control.
- If compliance by LHM with one or more of its obligations cannot reasonably be required of it in connection with one or more of the circumstances outlined above, it shall not be liable for failure to perform and it has the right to dissolve the contract (partial or full) without being liable for any compensation for damage.
X. LIABILITY AND COMPLAINTS
- Except in the case of malicious intent or gross negligence on the part of LHM and subject to its statutory liability on the grounds of mandatory legal provisions, LHM, its bodies, subordinates, representatives and subcontractors are under no circumstance liable for any damage suffered by the Customer.
- Liability of LHM, its bodies, subordinates, representatives and subcontractors are under all circumstances limited to an total amount equal to the fee charged or to be charged for the agreed services / products, however in any case limited up to a maximum of € 25.000,00 and never higher than the applicable insurance coverage of LHM for that particular event.
- Liability of LHM, its bodies, subordinates, representatives and subcontractors for indirect damage, loss of profit, loss of opportunity, consequential loss, non-material damage (including injury and emotional damage) or trading losses is explicitly ruled out.
- LHM is not liable for damage due to improper use or processing of the provided services / products by the Customer.
- The Customer is required to (arrange to) inspect the services / products with care immediately after delivery. The Customer must notify LHM in writing of any comments concerning the delivery within ten working days of the receipt of the services / products. Complaints concerning defects which are not directly visible must be made within ten working days of their observation and under no circumstance more than four weeks after the receipt of the services / products. The Customer shall provide a detailed statement of the nature and grounds for the complaint. If the complaint relates to delivered products the Customer must return the delivered products in the original packaging in order to give LHM an opportunity to examine these and to assess the complaint. If the complaint is found to be warranted, LHM bears the costs of the examination. If the complaint is found to be unfounded, the costs are borne by the Customer.
- The liability of LHM, its bodies, subordinates, representatives and subcontractors shall cease to exist if and to the extent that a claim has not been submitted within six months after the date of the invoice that relates to the services / products.
- If the Customer has reported a complaint to LHM in time and LHM has acknowledged this complaint, LHM is required to redo the delivered services, deliver missing items, replace the delivered products, repair or to recover the products and to credit the Customer for the relevant invoice amount. Under no circumstance is LHM obliged to pay compensation for other costs and/or damage.
- The Customer indemnifies LHM and holds LHM its bodies, subordinates, representatives and subcontractors harmless against third party claims for damage arising in connection with services / products supplied to that third party by the Customer, unless it is established in court that such claims are a direct consequence of malicious intent or gross negligence on the part of LHM and the Customer proves that no blame attaches to it in that regard.
- Without prejudice to the aforementioned provisions, the exemption from liability as well as the stipulated indemnity and compensation contained in these Terms and Conditions shall be regarded in relation to the bodies, subordinates, representatives and subcontractors of LHM as though these stipulations were explicitly stipulated on their behalf and each agreement by LHM.
XI. INTELLECTUAL PROPERTY
- LHM reserves the rights and powers that accrue to it on the basis of the Copyright Act (Auteurswet) and other intellectual laws and regulations. LHM has the right to use the knowledge it has acquired through the execution of an assignment for other purposes, insofar as no strictly confidential information of the Customer is disclosed to third parties.
XII. APPLICABLE LAW AND DISPUTES
- The Dutch Law is applicable to all offers, agreements, deliveries and services produced or brought out, entered into, performed or executed by or on behalf of LHM.
- Any disputes that may arise as a result of or in relation to an agreement shall be submitted to the competent justices of the District Court in the city of ‘s-Hertogenbosch.
- In so far as not provided otherwise in these Terms and Conditions English language words used in this Terms and Conditions intend to describe Dutch legal concepts only and the consequences of the use of those words in English law or any other foreign law shall be disregarded. References to any Dutch legal concept shall, in respect of any jurisdiction other than the Netherlands, be deemed to include the concept which in that jurisdiction most closely approximates the Dutch legal concept.