GENERAL TERMS AND CONDITIONS FOR COMMISSIONS TO DUCARES B.V. | TRADING AS TRISKELION – VERSION 3.1, MAY 2023
DUCARES B.V. | trading as TRISKELION aims to avoid any misunderstanding regarding the contents of the General Terms and Conditions and to provide easy access to those contents. For that reason DUCARES B.V. | trading as TRISKELION has filed its General Terms and Conditions with the Chamber of Commerce. In addition, the General Terms and Conditions are available on TRISKELION’s website: www.triskelion.nl. The General Terms and Conditions came into effect on 25 May 2023.
1. DEFINITIONS
Certain terms used by TRISKELION in these General Terms and Conditions have a specific meaning. This article defines those specific meanings.
AGREEMENT
Any agreement between TRISKELION and Client for the performance of the Commission, any amendment or supplement thereto and all (legal) acts in preparation and/or execution of that agreement.
BACKGROUND
All knowledge, experience and other information to which a party is entitled and which was not developed or created in the context of the Agreement, as well as any IP Rights acquired as a result of or vested in such knowledge, experience and other information. Such knowledge, experience and other information also includes tangible objects mutually made available by the parties in the context of the Commission including, but not limited to, liquids, reagents and prototypes; production processes and other processes, working methods, know-how and/or computer software.
CLIENT, YOU, YOUR
You, as the party commissioning TRISKELION to perform research.
COMMISSION
The research activities to be carried out by TRISKELION as specified in the Agreement.
FINAL REPORT
The report drawn up by TRISKELION which TRISKELION makes available to you on the basis of the Agreement and these General Terms and Conditions, describing findings of TRISKELION regarding the performance and the outcome of the work of TRISKELION and which TRISKELION has assigned the status of Final Report.
FOREGROUND
All knowledge, experience and other information developed or created in the context of the
Agreement, as well as any IP Rights acquired as a result of or vested in such knowledge, experience and other information. Such knowledge, experience and other information also includes tangible objects such as, but not limited to, liquids, reagents and prototypes; production processes and other processes, working methods, know-how and/or computer software.
GENERAL TERMS AND CONDITIONS
These terms and conditions for commissions to TRISKELION.
ICC INCOTERMS
The International Commercial Terms 2010, drawn up and published by the International Chamber of Commerce (ICC).
IP RIGHTS
All intellectual and industrial property rights including, but not limited to, copyrights, trade name rights, plant breeders’ rights, design rights, trademark rights and patent rights, and rights regarding topographies of semiconductors and domain names.
QUOTATION
A document drawn up by TRISKELION that forms a specified offer for the proposed Agreement.
SCOPE OF THE COMMISSION
The proposed area of application of the outcome of the Commission as specified in the Agreement.
DUCARES B.V. | trading as TRISKELION
DUCARES B.V. | trading as TRISKELION, a private company with limited liability (Besloten Vennootschap), incorporated under the laws of The Netherlands having its registered office in Zeist, The Netherlands, and registered with the trade register of the Dutch Chamber of Commerce with number 30230493.
The number references refer to the relevant section of the General Terms and Conditions. The article headings have only been included to make it easier to read the General Terms and Conditions. This means that an article may not be interpreted on the basis of the article headings or the structure of a provision of an article. Where the Agreement refers to a statutory provision, this also includes any statutory provision that replaces it.
2. GENERAL MATTERS TO BE TAKEN INTO ACCOUNT
2.1 Exclusion of other terms and conditions The Agreement is subject only to the General
Terms and Conditions. 2.2 Valid changes, additions and/or expansions TRISKELION can only be bound by changes or additions to, an expansion of and/or deviation from the Quotation, the Agreement or the Commission or a deviation from the General Terms and Conditions if they are confirmed on behalf of TRISKELION in writing or by email followed by written confirmation by a person who is officially authorized to represent TRISKELION. Such changes, additions, expansions and/or deviations are only valid in respect of the specific Agreement in which they have been agreed with you.
3. SCOPE OF THE COMMISSION. CONCLUSION OF THE AGREEMENT
3.1 Scope of the Commission
Prior to concluding an Agreement, TRISKELION will send you a Quotation. The Quotation is only binding on TRISKELION if it is confirmed on behalf of TRISKELION by a person who is officially authorized to represent TRISKELION. The Quotation is valid for one month after it has been issued by TRISKELION, unless explicitly stated otherwise by TRISKELION in the Quotation.
3.2 Concluding the Agreement
The Agreement is concluded when your written consent, or consent by email, to the Quotation has been received in good time.
If you ask TRISKELION to start work before it has issued a Quotation or before it has received your consent to the Quotation, your request will be regarded as consent to the entire Quotation as issued by TRISKELION and an Agreement will have been created. Once the Agreement including all annexes has been created as described above, it contains all arrangements made by TRISKELION and you regarding this Commission; any arrangements and commitments not contained in the Agreement are cancelled as a result.
3.3 Unpermitted use of the Quotation
In the Quotation, TRISKELION incorporates its ideas, knowledge and experience regarding the proposed Commission and the manner in which it can be performed. For that reason,
TRISKELION requires that you only use the Quotation (including any changes, additions and expansions) for determining whether you will award TRISKELION the Commission and not for any other purposes. If no Agreement is created, TRISKELION holds rights with regard to the contents of the Quotation, with the exception of any information provided by you.
3.4 Accepting third-party commissions within the Scope of the Commission
TRISKELION may accept commissions from third parties within the Scope of the Commission during the performance of the Commission, unless TRISKELION and you have explicitly agreed otherwise in writing.
4. PERFORMANCE OF THE COMMISSION. OUTCOME OF THE COMMISSION
4.1 Term expecting an outcome of the Commission
TRISKELION will perform the Commission within the agreed estimated term. If this term is likely to be exceeded, TRISKELION will contact you immediately to discuss this. However, TRISKELION will not be in default until you have requested TRISKELION in writing to perform its obligations within a reasonable period and that period has lapsed without those obligations having been performed.
4.2 Outcome of the Commission
The nature of research activities such as contract research for pre-clinical activities implies uncertainty regarding the outcome of the Services and the Goods. Furthermore, the Commission could have unintended effects. Therefore TRISKELION solely undertakes to aim for a practicable outcome of the Commission when performing the Commission, which outcome TRISKELION will record in a Final Report that will be provided to you, unless you and TRISKELION agree otherwise. In addition, if TRISKELION and you have agreed that TRISKELION will provide you with a product, TRISKELION will not issue any warranty, unless TRISKELION and you have explicitly agreed otherwise in writing.
4.3 Conditions for delivering
Delivery shall take place Ex Works (EXW) ICC Incoterms laboratory/warehouse ‘location of the relevant TRISKELION branch’.
4.4 Engaging agents by TRISKELION
In the performance of the Commission, TRISKELION may engage agents, provided that this does not create any reasonably anticipated confidentiality risk.
5. COOPERATION THAT TRISKELION EXPECTS FROM YOU
5.1 Goods to be made available by you in respect of the Commission
If TRISKELION and you have agreed that you will make certain goods available to TRISKELION for the performance of the Commission, TRISKELION is not obliged to commence performance
before TRISKELION has received the agreed number of goods, in the agreed form, within the agreed term. If TRISKELION receives these goods later than agreed, the estimated term for performance stated in the Agreement will be extended by the duration of this delay. If TRISKELION and you have agreed that the goods required for performance of the Commission are samples, you will be responsible yourself for their selection, representativeness and distinguishing marks (such as codes, brand or product names), unless you and TRISKELION have agreed that TRISKELION, or a third party on behalf of TRISKELION, will take samples.
5.2 Collecting the goods made available to TRISKELION
TRISKELION will retain the goods that you made available to TRISKELION in connection with the research (or, if reasonably possible, the remainder) free of charge for two weeks after the Final Report has been delivered, unless agreed otherwise. After those two weeks, TRISKELION will be free to take suitable measures; any related costs (for example costs of transport, storage, destruction, waste disposal, etc.) will be for your account.
5.3 Discovering changed insights or misunderstandings during performance of the Commission
If unmistakable shortcomings in the research methods or other significant details related to
the research are discovered during performance of the Commission, TRISKELION will inform you accordingly. If there are any misunderstandings regarding the contents and/or the performance of the Agreement because TRISKELION did not receive information from you, or because that information was inaccurate or incomplete, not received in good time or in writing, this will be your risk, unless that would not be reasonable under the circumstances.
5.4 Instructions with dangerous goods
If the goods that you make available to TRISKELION for the performance of the research are potentially dangerous, in any way whatsoever, you must clearly designate these goods in the customary manner and/or, if applicable, in the manner prescribed by law and, if necessary, provide them with instructions for storage and use, to ensure that TRISKELION must handle them with care.
6. CONFIDENTIALITY
6.1 Confidentiality and confidential period
TRISKELION will keep the outcome of the Commission as laid down in the Final Report confidential for one year after the date of the final invoice or the date of delivery of the Final Report, whichever comes first, with the exception of:
6.2 Confidential Client information
The information provided by you that comes to the knowledge of TRISKELION during the performance of the Commission and which you have indicated to be confidential will be kept confidential by TRISKELION with the exception of:
6.3 Ending period of confidentiality
TRISKELION is not obliged to observe confidentiality if and in so far as disclosure is required to explain matters to third parties and/or competent authorities in the event of misunderstandings resulting from your disclosure of the outcome of the Commission.
However, TRISKELION shall inform Client in advance, if possible, before informing such persons and/or competent authorities. Furthermore, TRISKELION will no longer be obliged to observe confidentiality if TRISKELION has a legal duty to report information to competent authorities, or is required to provide information pursuant to a decision issued by a court of law or supervisory body incorporated under public law. To the extent permitted by law, TRISKELION will consult with the Client before providing any information in such a situation.
6.4 Confidential information TRISKELION
Client undertakes to observe full confidentiality of everything which comes to his knowledge
(in any way whatever) with regard to TRISKELION and Background of TRISKELION in the broadest sense, therefore including, but not limited to, ideas, processes, procedures, work, prices, customers, relations, know-how and IP Rights. This confidentiality obligation shall continue after termination of the Agreement and the relation between you and TRISKELION.
7. RIGHTS TO BACKGROUND*
7.1 Rights regarding the Background
All rights you own or obtain with regard to your Background will remain vested in you. All rights TRISKELION owns or obtains with regard to its Background will remain vested in TRISKELION.
8. RIGHTS TO FOREGROUND*
8.1 Rights regarding the Foreground
If you have created any Foreground, or parts of it, within the context of the Commission with
TRISKELION, the relevant IP Rights or the exclusive right to vest these will accrue to you.
Foreground created by or on behalf of TRISKELION accrues to TRISKELION, unless explicitly agreed with you in writing in any other way.
8.2 Rights with regard to methods, software and experimental working methods developed by TRISKELION
The IP Rights, or the exclusive right to vest them, with regard to methods, software and experimental working methods developed by TRISKELION, the development of which was not directly intended with the award of the Commission, accrue in full to TRISKELION, unless provided otherwise by contract (which will also lay down the specific terms and conditions under which the right will be transferred to you).
8.3 Copyrights regarding a Final Report
In deviation of or, if applicable, in addition to the provisions of article 8.1, the copyrights with regard to a Final Report, as well as with regard to any preliminary or interim reports or subsequent explanatory notes to the Final Report, always accrue in full to TRISKELION.
9. PROTECTION OF FOREGROUND
9.1 Expectations that the Foreground can be protected
If you or TRISKELION expect that the Foreground, or parts of it, can be protected by performing an additional action, for example patenting, you and TRISKELION will inform each other. The party entitled to protecting that part of the Foreground will inform the other party about its exercise of that right and the specific contents. In the event of protection of the Foreground, or parts of it, TRISKELION and you will provide each other with all cooperation reasonably required to vest the right by performing an additional action, for example patenting. Such consent may be subject to conditions. TRISKELION will not investigate the possibility of protecting Foreground with an IP Right, unless explicitly stated in the Agreement.
9.2 Party entitled to protect the Foreground, or parts of it, decides not to obtain further protection
If the party entitled to protecting the Foreground, or parts of it, by performing an additional action (for example patenting) refrains from doing so, it will inform the other party and give the other party an opportunity to protect the Foreground or that part of the Foreground or to continue the protection, in which respect it is noted that all other reciprocal rights from the Agreement, including rights of use, will be maintained. The parts of the Foreground to which you or TRISKELION have an exclusive right in accordance with article 8 are excluded from this provision.
9.3 Protection of the Foreground, or parts of it, affects your or TRISKELION rights of use
If the Foreground or parts of it are protected, the rights of use granted under the Agreement and the General Terms and Conditions or under a separate agreement will be maintained.
9.4 Discovering an infringement, or alleged infringement, of IP Rights with regard to TRISKELION Foreground
In the event the Client discovers an infringement of IP Rights with regard to TRISKELION Foreground, the Client must notify TRISKELION as quickly as possible, and TRISKELION and the Client will discuss the matter.
10. USE OF BACKGROUND*
10.1 Entitled right TRISKELION to use Background
TRISKELION does not acquire the right to use your Background, other than and only in so far as necessary to perform the Commission.
10.2 Use of TRISKELION Background that is part of the outcome of the Commission for commercial purposes
Commercial use of TRISKELION Background – also if it is part of the outcome of the Commission – is subject to our explicit prior written consent. Such consent may be subject to conditions.
10.3 Infringement of third-party IP Rights
Client warrants that no third-party IP Rights are infringed by the use of the Background specified or provided by you and/or in the event a specific procedure is requested by you to be applied by TRISKELION in connection with the performance of the Commission. Client warrants that before entering into the Agreement, IP Rights due diligence has been performed by Client in order to determine whether the use of said Background and/or the requested procedures may infringe any third-party IP Rights. You shall immediately inform TRISKELION in the event you become aware of any possible infringement of a third party IP Right.
10.4 Indemnification by Client
You shall indemnify and hold harmless TRISKELION against all claims, demands, losses, proceedings, costs and expenses (including legal fees), which may be brought or asserted
against TRISKELION by a third party on the grounds of infringement of third-party IP Rights as a consequence of using:
11. USE OF FOREGROUND*
11.1 Exclusive right for using the Foreground
You will acquire the right to use the part of the Foreground accrued to TRISKELION – as provided to you by delivery of the Final Report – within the Scope of the Commission, except with regard to any incorporated Background of TRISKELION and subject to other limitations as laid down in these General Terms and Conditions and the Agreement.
11.2 Investigating the existence of any third-party rights to the Foreground by TRISKELION
TRISKELION will not investigate the existence of third-party IP Rights to the Foreground, unless explicitly stated otherwise in the Quotation.
11.3 Exclusive right of use with regard to Background and methods, software and experimental working methods developed by TRISKELION
TRISKELION is entitled at all times to use its Background and the methods, software and experimental working methods developed in the context of a Commission, the development
of which was not directly intended with the award of the Commission, for the benefit of third parties or have such third parties use it.
11.4 Using the Foreground by TRISKELION
TRISKELION acquires the right to make free use at all times of the knowledge and experience gained by TRISKELION during the performance of the Commission on its own behalf, for the benefit of third parties, or have third parties do so.
12. USE OF FINAL REPORT*
12.1 Use of Final Report by Client
Client shall have the right to use the Final Report for purposes as agreed upon and to submit the Final Report, in whole and unabridged, to the regulatory authorities for registration purposes.
12.2 Use that requires prior consent of TRISKELION
Without prior written consent of TRISKELION Client shall not:
13. DETERMINATION OF PRICE AND PAYMENT
13.1 ‘Guide price’ and invoiced price if no price has been determined in advance
If a ‘guide price’ has been agreed with you, this price is a non-binding estimate of the price
for the Commission, excluding the expenses incurred by TRISKELION in consultation with you. In that case, i.e. if a ‘guide price’ has been agreed with you, or if no price has been agreed
with you in advance, the price for the Commission including the expenses incurred by TRISKELION in consultation with you will be determined and invoiced on the basis of actual costs. When calculating the actual costs, TRISKELION will determine the rates applicable to the year in which the part(s) of the Commission is performed on the basis of the methods generally used at TRISKELION. If the period between the Quotation date and the date on which the work will end is one year or more, TRISKELION will be entitled to index the part of the Commission price not yet invoiced at 1 January each year in accordance with the annual adjustment of the rates used by TRISKELION.
13.2 ‘Fixed price’
If a ‘fixed price’ has been agreed with you, this price will be the price for the Commission,
excluding the expenses incurred by TRISKELION in consultation with you.
13.3 Additional work
If a fixed price as referred to in article 13.2 has been agreed with you, but – with your consent – the Commission is changed or expanded, or if it turns out during the performance of the
Commission that you did not, or insufficiently, inform TRISKELION about your wishes, requirements or preconditions when the Agreement was concluded, TRISKELION will invoice the additional work resulting from this on the basis of actual costs.
13.4 Payment in advance and/or interim payment
TRISKELION may at all times require you to make advance or interim payment.
13.5 Quoted amounts exclusive of VAT
All amounts quoted by TRISKELION in a Quotation or Agreement or General Terms and
Conditions are exclusive of VAT, unless stated otherwise.
13.6 Currency
All amounts due hereunder shall be payable in Euros, unless otherwise explicitly agreed in writing.
13.7 Term of paying invoice of TRISKELION
TRISKELION requires you to pay its invoice or invoices within thirty (30) days of the invoice date. You may not deduct any TRISKELION invoices from amounts owed by TRISKELION to you, or set off such invoices against such amounts.
13.8 Failing to pay the TRISKELION invoice, or failing to pay it in full or in time
If you do not pay the TRISKELION invoice within the agreed payment term, you will owe TRISKELION interest (i.e. the statutory interest applicable to commercial transactions) and all costs (including judicial and extrajudicial costs) incurred by TRISKELION to obtain payment of its invoice, in addition to the unpaid invoice amount. Goods of Client still in possession of TRISKELION may be retained by TRISKELION until the moment that all amounts due to TRISKELION, including the invoice, interest and judicial and extrajudicial costs, are paid in full by Client or until you have – in the opinion of TRISKELION – provided sufficient security for payment. TRISKELION will remain the owner of goods supplied to you by TRISKELION as long as all amounts due to TRISKELION, including the invoice, interest and judicial and extrajudicial costs, have not been paid in full by Client. The Client will acquire IP Rights to the outcome of the Commission, or parts of it, on the condition precedent of payment of the price for the Commission.
14. CONSEQUENCES OF NON-PERFORMANCE
14.1 Failing to perform the Agreement
If TRISKELION or you fail to perform a material obligation of the Agreement, the other party will submit a written demand to the non-performing party (‘defaulting party’) to perform that obligation within a reasonable period. However, a defaulting party will only be in default when the other party has requested it in writing to perform its obligations within a reasonable period and that period has lapsed without those obligations having been performed.
14.2 Performing if the other party fails to perform
If the defaulting party still fails to perform after that reasonable period has lapsed, the other
party, with due observance of the provisions of article 16.5, will no longer be obliged to perform
its remaining obligations under the Agreement and may terminate the Agreement.
14.3 Date of informing TRISKELION of any objections you may have regarding the performance of the Commission
Any claims you may have against TRISKELION and/or any agents engaged by TRISKELION in the context of performance of the Commission must be explicitly notified to TRISKELION as soon as possible, but in any case before the first anniversary of the date of the final invoice or, if earlier, the date of delivery of the Final Report; claims lodged after that date will lapse, unless you demonstrate that it was impossible for you to notify TRISKELION within the set term.
15 LIABILITY AND DAMAGES
15.1 Liability and amount
TRISKELION is only liable for loss or damage resulting directly from a failure to perform its obligations that is attributable to TRISKELION. If TRISKELION is liable pursuant to the contractual liability referred to in the previous sentence and/or for any other reason, TRISKELION can only be held liable for direct loss or damage suffered by the Client up to at most the price due by the Client in respect of the Commission pursuant to article 13.
15.2 Not liable
With due observance of the provisions of article 15.1, TRISKELION, including any agents engaged by TRISKELION in the context of performance of the Commission, is furthermore not liable for:
15.3 Asserting a claim by a third party against TRISKELION and/or agents engaged by TRISKELION in the context of performance of the Commission regarding your use of the outcome of the Commission
If third parties assert a claim against TRISKELION and/or any agents engaged by TRISKELION in the context of performance of the commission regarding loss or damage arising from application or use of the outcome of the Commission by you or by a third party to whom you have made the outcome of the Commission available, you must fully indemnify TRISKELION and/or any agents engaged by TRISKELION in the context of performance of the Commission, other than in the event of willful intent or gross negligence on the part of TRISKELION.
15.4 Limiting your liability vis-à-vis TRISKELION and/or any agents engaged by TRISKELION in the context of performance of the Commission
If TRISKELION staff or any agents engaged by TRISKELION in the context of performance of the Agreement are present on your premises and/or those of third parties in connection with the Commission, TRISKELION and/or any agents engaged by TRISKELION in the context of performance of the Commission will not be bound by any stipulations contained in gate safety or security notices and such that serve to limit the Client’s liability under the Agreement or otherwise in whole or in part. You may not invoke any other limitations of liability either, for example in connection with injuries sustained on your premises by agents engaged by TRISKELION in the context of performance of the Commission, against TRISKELION or against any agents engaged by TRISKELION in the context of performance of the Commission.
16. END OF THE AGREEMENT. TERMINATION OF THE AGREEMENT
16.1 Terminating and ending
An Agreement is concluded for an indefinite period of time and ends upon completion of the Commission.
TRISKELION will be deemed to have completed the Commission once TRISKELION has made the Final Report referred to in article 4.2 available to the Client. The Agreement will end automatically, with immediate effect and without any obligation to pay damages if:
16.2 Prematurely terminating the Agreement
The Client may terminate the Agreement prematurely. If the Agreement is terminated prematurely, TRISKELION is entitled to a part of the price, to be reasonably determined. TRISKELION may only terminate the Agreement prematurely for serious reasons within the meaning of Book 7, Article 408 (2) of the Dutch Civil Code.
16.3 Way of terminating the Agreement
The Agreement is automatically terminated prematurely in the events referred to in 16.1 (a)
through (d) or in writing. In the latter case, the date on which the Agreement ends is the date on which the Client or TRISKELION receives the written notification regarding early termination or any later date mentioned in that notification.
16.4 Consequences of early termination
In the event of early termination of the Agreement, any preliminary or interim outcome of work of TRISKELION is premature. That is why in the event of early termination, the Client is not entitled to use any preliminary or interim outcome of work of TRISKELION, neither for itself, nor may it use such outcome for the benefit of third parties or have third parties use such outcome. If TRISKELION and you nevertheless explicitly agree in writing that the Client acquires IP Rights to any preliminary or interim outcome of work of TRISKELION, this is done under the condition precedent of payment of part of the price to be reasonably determined by TRISKELION as referred to in article 16.2.
16.5 Provisions that apply after termination of the Agreement
In the event that the Agreement ends in any way, the provisions that are intended to continue to apply in full after the end of the Agreement – such as, but not limited to, provisions in respect of liability.
17. LAW AND JURISDICTION
17.1 Applicable law
The Agreement is governed exclusively by the substantive laws of The Netherlands. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
17.2 Settling disputes
All disputes arising from these General Terms and Conditions and/or a Quotation and/or an Agreement, including disputes regarding its existence and validity, that TRISKELION and you cannot resolve in mutual consultation, shall be settled by the competent court in the district of Utrecht, The Netherlands, with the exclusion of all other courts.
*The word ‘rights’ in articles 7 and 8 is understood to mean: regarding goods the rights of ownership, and regarding proprietary rights (such as IP Rights) the fullest right possible. This, as opposed to the rights of use discussed in articles 10, 11 and 12.
