BIO-X DIAGNOSTICS – GENERAL TERMS AND CONDITIONS
- Application and interpretation
These general terms and conditions alone govern all contractual relations between Bio-X Diagnostics (settled in Rue de la Calestienne bat. 38, 5580 Rochefort, Belgium) and the purchaser. The general and special conditions of the purchaser are not enforceable with respect to Bio-X Diagnostics. Acceptance of the order form shall automatically mean acceptance of these general terms and conditions. Only the special conditions specified on the contract or agreed in writing between the parties may depart from them. Depending on the context and except in the event of a stipulation to the contrary, (i) the term “purchaser” in the general terms and conditions shall be interpreted as also meaning any prospect, buyer, customer, importer, exporter, distributor or any party entering into an agreement with Bio-X Diagnostics; (ii) the term “contract” as also any offer, proposal, order form, sales, delivery, distribution contract or any agreement between the parties; (iii) the term “products” also as any diagnostic kits, consumables, components, items, packaging, boxes and other accessories or products manufactured or supplied by Bio-X Diagnostics.
- Orders and confirmations
All offers are made without engagement. Offers are valid for a maximum period of 30 days from the date of the offer, unless otherwise explicitly agreed. Any information and data contained in Bio-X Diagnostics’ product characteristics, material and price lists are given for information only. Product specification and prices can be modified at any time without prior notice.
All orders made in writing or orally shall be confirmed by Bio-X Diagnostics by e-mail or by fax. No order will be registered without complete references of the purchaser (Name of the company, address, phone number, fax number, or email address, VAT number, delivery address, name of a contact person).
- Price, payment and invoices
Prices do not include VAT, nor transport costs.
Unless otherwise agreed by the parties, payments shall be made in Euro before loading and delivery, by SWIFT wire transfer to such account specified on the invoices.
Any bank charges, costs and fees are to be borne solely by the purchaser.
If a letter of credit is needed, it shall be an irrevocable and confirmed letter of credit, that shall be issued in Euro by a first-class bank at the purchaser’s expense and that shall have a validity period covering the performance period of all obligations by the parties. This validity period shall be extended at the purchaser’s expense in case the contract performance is delayed for any reason.
Any payment which is not made on the due date, nor in accordance with the conditions specified in the contract or invoices shall accrue interest at a yearly rate of 10%, with a minimum of 350 euro per breach, without prejudice to the right to reimbursement of the costs or compensation for any actual damage. A started month of delay shall be considered to be an entire month of interest.
In case of no payment on the due dates, Bio-X Diagnostics reserves the right to suspend any of its own obligations until any payment is made by the purchaser; or to terminate the agreement between the parties, and keep all instalments or payments already made by the purchaser to Bio-X Diagnostics, without prejudice to the right to reimbursement of the costs or compensation for any actual direct or indirect damage resulting from a delay of payment, including loss of production or loss of earnings, suffered by Bio-X Diagnostics, its customer(s), or by a third party.
- Delivery and title
The Products are packaged for transport by first-class mail or express courier. The Products may be shipped in a single lot or in several lots.
Unless otherwise agreed by the parties in the contract, the products are delivered FCA (Free Carrier Bio-X Diagnostics’ premises in Rochefort, Belgium / Incoterm CCI 2020). In case another Incoterm is chosen by the parties, prices will be adapted according the agreed transport terms.
Bio-X Diagnostics shall ensure the availability of the products on the dates and according to conditions agreed by the parties. These delivery dates are not strictly the rule. The purchaser has no right to refuse the products, to claim for damages or to terminate the contract because of a delivery delay. Bio-X Diagnostics shall be liable only if the delay is the exclusive and direct consequence of a gross misconduct of Bio-X Diagnostics.
Title of the products shall pass from Bio-X Diagnostics to the purchaser once the purchaser has paid the price in full, although the products may already have been delivered to the purchaser .The purchaser shall not dispose of, nor sell, nor transfer the products as long as all sums due and owing have not been paid in full to Bio-X Diagnostics.
In the event that the purchaser refuses or delays loading or receiving the products, he shall make the payments in accordance with the terms and conditions initially agreed by the parties, and reimburse to Bio-X Diagnostics all costs caused by the refusal or delay of loading or reception (such as storage or transport costs).
- Conformity and warranty
The products are manufactured according to the specifications agreed in the contract, with the exception of any regulation or requirement. Nevertheless, Bio-X Diagnostics reserves the right to make changes in specifications of the products without prior notice or agreement as long as such changes do not affect the quality of the products.
Any additional costs related to changes required by the purchaser, including compliance to local rules and regulations of the purchaser’s country, shall be borne by the purchaser and may extend the delivery terms.
Bio-X Diagnostics warrants, for a period of 3 months from the date the products are at the purchaser’s disposal, that the products will be free from hidden defects due entirely and exclusively to a fault of Bio-X Diagnostics.
As soon as the products are at his disposal, the purchaser shall inspect carefully the products and shall immediately raise, in writing and within two (2) calendar weeks, any relevant and precise complaint on their conformity and quality (notifying the number and date of the invoice). After such period of two weeks, any apparent defect will be considered to be definitively accepted by the purchaser. In any case, the purchaser may not refuse the products for minor or futile reasons.
In case of defect which is caused by Bio-X Diagnostics, the fulfilment of Bio-X Diagnostics’ obligation of warranty shall be limited, at Bio-X Diagnostics’ option, to replacing the defective products or to crediting the purchaser for these defective products within a reasonable timeline. The replacing products will be delivered to the purchaser together with the next order of Products made by the purchaser, except otherwise agreed by the parties.
Bio-X Diagnostics may suspend its obligation of warranty as long as the purchaser does not execute entirely his own obligations.
- Disclaimer of liability
If any liability is implied by operation of law, Bio-X Diagnostics’ liability shall be strictly limited to damages or losses suffered by the purchaser that are the exclusive and direct consequences of a gross misconduct of Bio-X Diagnostics. Any compensation due by Bio-X Diagnostics shall never exceed the value of the contract. Bio-X Diagnostics shall in no circumstances be liable for loss of earnings, of production or of profit, or any other consequential damage and indirect loss.
In connection with the purchaser’s use including resale of the products, the purchaser shall be under obligation to use/market these properly and to the widest possible extent, to take precautions in order that neither the purchaser himself nor Bio-X Diagnostics shall incur product liability.
Bio-X Diagnostics shall in no case be held liable for any injury suffered by third parties or by the purchaser in the event that the purchaser has adopted an attitude contrary to the information and recommendations regarding the use and marketing of the products.
The purchaser will have to guarantee Bio-X Diagnostics of any third-party remedies which have suffered directly or indirectly as a result of the purchaser’s failure to comply with the information and recommendations referred to in this Article.
In particular, Bio-X Diagnostics draws the purchaser’s attention to the following:
– The purchaser will pass on to his own partners and customers the conditions and recommendations for the use of the products;
– The purchaser will be solely responsible for the marketing of the products in the delivery territory and for the legal conditions under which these products can be marketed in that territory;
– Bio-X Diagnostics will at no time be liable for the fact that the products will not be authorized by a legal provision or by any authority to be marketed in the purchaser’s State;
- Force majeure
Neither party shall be liable in damages or have the right to terminate the agreement made between the parties, for any delay or default in performing under this contract if such delay or default is caused by conditions beyond its control and occurring without its fault or negligence, including, but not limited to failure of suppliers, subcontractors, and carriers, acts of god, government restrictions (including the denial or cancellation of any export or other necessary license), outbreak of contagious or other notifiable human or animal diseases, wars, insurrections, strikes, sickness, fires, floods, power failures, or damage or destruction of any facilities, computer bugs, changes in IT environment, general lack of supplies or means of transport, delay or failure to fulfil obligations on the part of BIO-X Diagnostics or subcontractors and/or any other cause beyond the reasonable control of the party whose performance is affected.
The party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused by a force majeure.
If such period is extended by more than six (6) months, or if it becomes reasonably certain that the further performance of the contract is rendered impossible, then either party can terminate the contract, without damages for any party.
All documents and information, without restriction, given or shown by Bio-X Diagnostics to the purchaser shall remain the entire and exclusive property of Bio-X Diagnostics and strictly confidential. The purchaser shall return them in full directly to Bio-X Diagnostics on its first request.
Unless this information has already come into public domain in a completely lawful manner, the purchaser may not under any circumstances, even after complete execution of the contract, directly or indirectly (i) divulge or communicate it to third parties, (ii) make use of it for himself or for a third party, other than for the strict execution of the contract, (iii) sell or supply products or services that are identical or similar to the products.
- Registration of products
Solely Bio-X Diagnostics may decide to apply for the registration of the products in the state of the purchaser. In the event the circumstances require that Bio-X Diagnostics must apply under its name for any registration in the purchaser’s State, the purchaser further agrees to assist Bio-X Diagnostics to prepare, file, set up, introduce and follow up the applications. Any cost and expenses related to products registration are not included in any products’ prices and shall be borne by the purchaser.
In the event such registrations are required by the laws and regulations in the purchaser’s State to be only in the name of the purchaser, then the purchaser agrees to become responsible of these registrations but to forward to Bio-X Diagnostics all information, copies of relevant documents, revenues and rights to these registrations. Upon termination of the contract or the relation between the parties for any reason whatsoever, the purchaser shall forthwith return, assign or transfer all such authorizations to Bio-X Diagnostics without requiring any payment and without using them for his own interests.
- Intellectual property
BIO-X Diagnostics is and will remain the sole proprietor and beneficiary of all present and future intellectual rights, whatever they are, connected with the brand names, logos, designs, artwork, products, models, concepts, know-how, processes, documentation, user manuals, training materials, specifications and other written materials and original ideas associated with the products, whether or not they are protected or registered. The purchaser agrees not to imitate or counterfeit the products, market identical or similar concepts or processes, apply for or register trademarks, logos or models, generally demonstrate any intellectual property right to any of these elements, or remove the labels from the products that he has acquired, in any way whatsoever.
BIO-X Diagnostics can terminate the contract or suspend its own obligations at any time and without notice or any compensation to the purchaser, as of right and without prior notice:
– if the purchaser fails to fulfil one of his contractual obligations or if it turns out that he will fail or if there is a risk that he will fail to fulfil one of his obligations, even if this happens before this obligation is due to be fulfilled. In this case, any payment(s) made or due by the purchaser is/are definitively acquired by BIO-X DIAGNOSTICS depending of the Services and expenses made by BIO-X Diagnostics at the time of termination and without prejudice to any damages and interest if the total value of the damage actually suffered by BIO-X Diagnostics turns out to be higher;
– in the event of incapacity, insolvency, inability to make payments, a request to defer payment, judicial reorganization procedure, voluntary or compulsory bankruptcy or any other event demonstrating the purchaser financial difficulties;
– if BIO-X Diagnostics ceases trading or makes substantial changes to its activities;
– in the event of an instance of force majeure which lasts for more than 6 months.
If the purchaser terminates the Contract without intentional gross negligence on the part of Bio-X Diagnostics, any payment(s) due and made by the purchaser is/are definitively acquired by Bio-X Diagnostics depending of the Services and expenses made by Bio-X Diagnostics at the time of termination and without prejudice to any damages and interest if the total value of the damage actually suffered by BIO-X Diagnostics turns out to be higher.
If a provision of the contract or of these general terms and conditions is to be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid, enforceable and economically equivalent to the said provision for both parties. The legality, validity and enforceability of the remaining provisions shall not be affected thereby.
- Personal data protection
The purchaser agrees that Bio-X Diagnostics uses and stores the purchaser’s personal data only for contract performance and management, invoicing and direct marketing communication (promotional or commercial mails sent only by Bio-X Diagnostics).
At any time, the purchaser may ask to know what his data used by Bio-X Diagnostics are, to receive them, to rectify them, to limit their use and to withdraw them from the data base.
Bio-X Diagnostics undertakes to implement technical and organizational means to ensure an adequate level of security to protect the purchaser’s data and keep them confidential.
- Settlement of disputes
This contract shall be governed by and constructed in all respects in accordance with the laws of Belgium.
The parties agree to resolve any dispute arising from the Contract, or any later modifications thereto, in an amicable fashion.
If this is not possible within the month following the beginning of the dispute, the parties will refer to the regulations of the CEPANI (Belgian Arbitration and Mediation Centre, www.cepani.be) which relate to Mediation for any dispute arising from the Contract or relating to it either directly or indirectly. This Mediation must take place in Namur and the process will take place in French if the parties are French-speaking, or in English if the parties are not French-speaking.
If no settlement can be arrived at during the mediation process, or if the parties agree to abandon the mediation process, any dispute, disagreement or claim which arises from or relates to the Contract will be ruled on by the courts and tribunals of Namur, Dinant Division.
The obligations set forth in the sections entitled “”, “Intellectual property”, “Confidentiality”, “Disclaimer of Liability”, “personal data protection” shall survive cancellation, termination or nullity of the Agreement.