1. In these general sale and supply conditions the following terms shall have the meaning set out below.
(a) Florates: the Dutch limited liability company Florates B.V., having offices in (3981TA) Bunnik, the Netherlands, at Ambachtsring 16.
(b) Customer: the private person or legal entity purchasing Products and/or Services from Florates.
(c) Deliverables: a report describing the test results generated by Florates pursuant to Services.
(d) General Conditions: these general sale and supply conditions used by Florates in relation to Customer, irrespective of the form in which they are presented.
(e) Products: all movable assets (including diagnostic kits) which are subject to any offer, proposal, agreement or any other contract between Florates and Customer.
(f) Services: all activities (including diagnostic services) which are subject to any offer, proposal, agreement or any other contract between Florates and Customer.
1. The General Conditions shall cover and form part of all offers, proposals, agreements and other acts, either made orally, in writing, electronic or in any other form, concerning the supply by Florates of Products and/or Services to or on behalf of the Customer.
2. The General Conditions also apply to Products and/or Services partly or wholly obtained by Florates from a third party and which are, either processed or not, delivered to the Customer, as well as to Products and/or Services required for the execution of any offer, proposal, agreement in the relation between Florates and Customer.
3. Deviations from the General Conditions shall only apply if and to the extent that they have been explicitly agreed upon in writing between Florates and the Customer.
4. Florates explicitly rejects the applicability of any general (purchase) conditions used by the Customer.
5. If and to the extent that any provision contained in these General Conditions should prove not valid for whatever reason, the other provisions of these General Conditions shall remain in full force and effect.
3 Offer and agreement
1. All offers made by Florates shall be without any obligation unless explicitly otherwise stated in writing.
2. All offers are valid for the period mentioned in the offer concerned. If no period is mentioned, the offer will be valid for fourteen (14) days after the date mentioned in the offer.
3. An agreement with respect to Products and Services shall have been concluded as soon as Florates accepts the Customer’s order in writing, or on the moment Florates starts executing the Customer’s order.
4. All Customer’s instructions in view of the ordering of Products and Services with Florates are accepted and carried out exclusively by Florates, with the exclusion of Article 7:404 and 7:407 (2) Dutch Civil Code.
5. Florates is entitled to request that Customer places orders for Products and/or Services having a certain minimum quantity or value.
5. Any other party than Customer cannot derive any rights from an order placed by Customer with Florates.
4 Prices, fees and variations
1. All prices and fees mentioned in Florates’ offers are in Euros, unless explicitly otherwise stated.
2. Furthermore, all prices and fees are excluding value-added tax (VAT), any other sales tax, duty, inspection or testing fee and any other taxes or government levies, as well as costs for transport and delivery, unless explicitly otherwise stated.
3. Florates is at any time authorized to adjust its prices and fees. Unless agreed upon in writing that
prices and fees are valid for a fixed period, all announced adjustments will enter into force 1 (one) month after the announcement thereof.
4. If the Customer does not agree with any announced adjustment in Florates’ prices and fees, the Customer may terminate the agreement with Florates in writing within 14 (fourteen) days after such announcement. Termination will have effect from the date the adjustment of the prices and fees enters into force.
5. If in consultation with the Customer deviations from the original agreement will be made, the costs deriving from such variations will be invoiced to the Customer against the prices and fees that apply at such moment.
1. Unless otherwise agreed between Florates and Customer, Florates’ invoices must be paid within 14 (fourteen) days after the date of invoice.
2. All payments by the Customer to Florates shall first be applied against the oldest of any outstanding invoices, irrespective of any other indication by the Customer.
3. Customer shall not be entitled to any postponement of payment of Check-Point’s invoices, neither to any set-off or reduction outside the scope of its rights in this respect under mandatory law.
4. Florates is entitled at all times to require payment in advance by Customer and to postpone delivery of Products and/or Services until such payment in advance has been received.
5. Furthermore Florates is entitled to require security from the Customer for the fulfilment of its payment obligation in any form, to be indicated by Florates, such as a bank guarantee. In such event, the Products and/or Services will only be delivered after such security has been obtained.
6. If the Customer fails to pay an invoice within the payment term, Customer is in default without a warning or notice of default being required.
7. From the day on which the Customer shall be in default until the day of payment in full, interest shall accrue on the outstanding amount at the statutory rate.
8. If Customer continues to be in default in his obligation to pay the outstanding invoice with accrued interest, Florates is at liberty to instruct a debt-collector agency and/or lawyer to collect Customer’s debt.
9. All collection costs incurred by Florates in respect of such collection, both in law (judicial costs) as well as out of law (extra judicial costs) shall be for the Customer’s sole account. The amount of the collection costs shall be determined at least 15% (fifteen percent) of the principal sum due by Customer to Florates.
6 Delivery, Performance and retention of title
1. Products shall be delivered FCA (Incoterms 2010) Florates. Deliverables will be provided to Customer by regular mail and/or by electronic mail.
2. All Products shall be suitably packed in Florates’ standard shipping cartons and marked for delivery to Customer.
3. Title and risk of loss or damage with respect to the Products shall pass to Customer when Florates hand over the Products to the courier selected by Customer at the place indicated by Customer or mutually agreed upon. If the place for handing over the Products to Customer’s courier has not been agreed upon, Florates can indicate such place.
4. Upon delivery, Customer shall store the Products in accordance with the storage conditions specified by Florates and/or those conditions indicated on the packaging of the Product.
5. All terms of delivery, including but not limited to delivery times, of Products and/or Deliverables only serve as estimates and are therefore never fatal, unless explicitly stated otherwise.
6. Florates retains title to the Products delivered to Customer, until payment has been received in full, including accrued interest and costs referred to in article 5.
7. Florates shall perform the Services professionally and to the best of its abilities. However, Customer acknowledges that Florates cannot guarantee particular results.
1. Immediately upon receipt of the Products or the Deliverables, Customer will verify all Products or Deliverables, whatever is the case, for potential defects or other shortcomings, including incomplete or incorrect delivery.
2. Any claims for damaged, missing or defective Products or otherwise incorrect deliveries must be reported in writing to Florates within 14 (fourteen) days from the date of receipt of the Products, otherwise the Products will be deemed to have been received in good condition and accepted by Customer.
3. If Customer is of the opinion that any Product or Service delivered by Florates does not meet with the agreed conditions, Customer must notify Florates thereof in writing within 14 (fourteen) days of delivery, or 14 (fourteen) days from the day Customer could reasonably be aware of the alleged shortcoming, otherwise Customer will be deemed to have acknowledged that the Products and/or Services were supplied in conformity to the agreed conditions.
4. Customer will only return Rejected Product to Florates after written approval of Florates, provided that that the Products are unused, they are in the Product’s original containers and packing material and in a condition no worse than that delivered to Customer.
5. Florates may refuse any Product not timely rejected in writing.
6. For any valid claim made Florates shall at its option, repair the Product or replace the Product with an identical or substantially similar Product. The foregoing shall be Customer’s sole and exclusive remedy for damaged or missing Products, and except for the following express warranty rights, for defective Products.
7. All of Customer’s objections against any of Florates’ invoices must be notified in writing to Florates within 14 (fourteen) days after the date of invoice, after which term the amount concerned is considered to be acknowledged for payment in due time.
8 Product warranty and limitation of liability Florates
1. Subject to article 8.2, Florates warrants that (i) the Products it supplies to Customer shall have a shelf life of maximum one year and (ii) that the integrity and quality of its Products comply with the description provided on the packaging and labelling upon delivery, on the understanding that the Products are transported, stored and used in accordance with the instructions for use provided by Florates.
2. Florates shall use reasonable efforts in producing the Products and performing the Services but does not make any warranties, express or implied, by operation of law or otherwise, with respect to the functionalities of the Products and/or the Services. Without limiting the foregoing, Florates specifically disclaims all implied warranties of title, non infringement, merchantability and fitness for a particular purpose.
3. The liability of Florates due to an attributable failure to perform under any agreement concluded between Florates and Customer will be limited to compensation of the direct damages.
4. Any liability of Florates for special, punitive, consequential or indirect damage, including but not limited to loss of profits, loss of turnover, loss of prospective profits or anticipated sales or goodwill is excluded.
5. The liability of Florates shall, save for wilful misconduct, never exceed the sum stipulated for the Services and/or Products to which the failure pertains (or, in the event of a long term agreement, the total amount paid by Customer to Florates in the 12 months preceding the failure).
6. This clause does not apply to death or personal injury to the extent that Florates cannot by law exclude or limit its liability for such damages.
9 Obligations of the Customer
1. Customer will provide Florates in due time with complete data and other information required by Florates for the delivery of the Products and/or Services. Furthermore, Customer will support all employees of Florates that carry out activities at Customer offices in order to deliver the Products and/or Services or to provide training for use of the Products, if and where necessary for the execution of their tasks.
2. Customer warrants that the information as meant in this article 9 is correct and complete, and that it is entitled to provide Florates with such information for the delivery of the Products and/or Services. Customer indemnifies Florates against all third parties’ claims in this respect.
3. If any of the data provided by Customer consist of patient samples containing personal data, Customer
guarantees that with regard to such samples, all applicable regulations for the protection of privacy have been observed. Customer furthermore guarantees that Florates is entitled to process such samples for the purposes agreed with Customer, who will indemnify Florates against any third parties’ claims in this respect. Florates will ensure that it on its own side will also strictly observe all applicable privacy regulations.
4. Customer shall pass on to each of its clients the limitations on warranty specified in the agreement between Florates and Customer. The Customer has no authority to modify Florates´ warranty and shall indemnify Florates for any unauthorized modification.
5. Customer shall give and make no other warranty or representation on behalf of Florates´ Products and/or Services as to quality, reliability, fitness for purpose or any other feature of the Products and/or Services than those given by Florates to the end user as set forth in the warranty literature applicable to the specific Product and/or Service.
6. If Customer unilaterally extends any additional warranty, Customer shall indemnify Florates for any liability caused by such additional warranty. The Customer is not allowed to re(sell) or (re)distribute any Product or Service purchased from Florates unless explicitly permitted otherwise.
7. Customer agrees to use Florates’ Products in strict accordance with applicable instructions, warnings and other information in user manuals and other Product documentation, and in the manner for which they were intended.
10 Intellectual Property
1. All intellectual property rights vested in the Products and/or Services, as well as in the designs, software, documentation and all other materials developed and/or used for the preparation or execution of the agreement between Florates and Customer, or deriving there from, are owned by Florates or its suppliers and/or licensors.
2. The delivery of any Products and/or Services does not imply any transfer of intellectual property rights to Customer; Customer will only obtain a non-exclusive and non-transferable license for the use of the Products and/or the Deliverables, whatever is the case, for the agreed objectives.
3. Florates warrants that it is entitled to grant the license as mentioned in this article 10.2 and, subject to articles 10.4 up to and including 10.6, indemnifies Customer against any claims of third parties in this respect. This indemnification does not apply if and to the extent that the Products and/or results of the Services have been altered and/or have been delivered in connection with third parties’ products, unless the Customer in the latter shows that such third parties’ claims only apply to Florates’ deliveries.
4. Customer will never disclose, copy or make available to third parties any Product or result of a Service, without Florates’ prior written consent.
5. Customer is prohibited from removing or changing any copyright or other notices of Florates or its suppliers from the packaging of the Product.
6. At no time during the term of any agreement being in place between Florates and Customer, nor thereafter, shall Customer challenge or assist others in the challenge of any intellectual property rights of Florates. Similarly, Customer shall not register or use any trademarks or trade names owned by Florates or confusingly similar trademarks or trade names.
1. Both Florates and Customer undertake to observe strict confidentiality with regard to all confidential information they receive from each other. They shall also impose the aforementioned obligation on their employees as well as to third parties who have been employed by them in connection with any agreement between Florates and Customer.
2. Information will in any event be regarded as confidential if either Florates or Customer indicates such information as confidential.
1. Unless explicitly stipulated otherwise with regard to a specific Product or Service, all agreements between Florates and Customer shall have an initial term of 12 (twelve) months. After the initial term, the agreement will again and again be automatically renewed for another term of 12 (twelve) months, unless
one of the parties terminates the agreement in writing ultimately one month before the end of the term concerned.
2. Either Florates or Customer is entitled to dissolve any agreement in place between them without any judicial intervention being required if its counterpart fails imputably in its obligations under such agreement and the attributable failure will not be remedied in time after such counterpart has been given properly notice of default.
3. The dissolution of an agreement between Florates and Customer does not release Customer from any payment obligation regarding any Products and/or Services delivered by Florates, unless Florates is in default with regard to such Product or Service.
4. Florates is entitled to dissolve an agreement with Customer with immediate effect, without any notice of default or judicial intervention being required and without becoming liable for damages, if Customer (i) has not, not timely or not properly fulfilled its obligations hereunder and, such default can either not be cured or, if curable, has not been cured within 14 (fourteen) days after receipt of written notice thereof from Florates, all without prejudice to the right of Florates to claim the damages it has suffered as a result of the termination of this agreement; or (ii) if the Customer files for bankruptcy or suspension of debts (surseance), a petition for bankruptcy has been filed against it, passes a resolution for its liquidation, if a liquidator is appointed in respect of its assets or if the Customer makes an assignment for the benefit of its creditors, or the Customer deceases.
5. Immediately after the termination of an agreement between Florates and Customer, for whatever reason, Customer commits himself to cease any and all use of the Products and/or results of Services supplied, and will return all copies of documentation, software and all other materials that are provided to Customer within the scope of the agreement with Florates.
6. The provisions regarding ownership of intellectual property rights, confidentiality, indemnification, liability, applicable law and disputes shall survive termination of the agreement.
1. Agreements between Florates and Customer concerning the delivery of a Products and/or Services to which these General Conditions apply, as well as all offers and proposals pertaining thereto are governed by the laws of the Netherlands.
2. Any disputes following from or arising in connection with any agreement between Florates and Customer shall exclusively be submitted to the competent court in Arnhem, The Netherlands.
version 1.0 dated: 2022 November 2022.