General delivery and sales conditions of MCS Diagnostics B.V., established in (6071 RE) Swalmen at Voorveld 16 in the Netherlands, hereinafter referred to as ‘MCS Diagnostics’.
Article 1. General
1. These conditions apply to every offer, quotation and agreement between MCS Diagnostics and Buyer to which MCS Diagnostics has declared these conditions applicable. Deviations from these conditions can only be agreed in writing and shall only be valid upon express written confirmation thereof by MCS Diagnostics.
2. The present conditions also apply to all agreements with MCS Diagnostics, the performance of which requires the involvement of third parties.
3. General terms and conditions of Buyer are only applicable if it has been expressly agreed in writing that they apply to the Agreement to the exclusion of these terms and conditions. In such event, any remaining conflicting provisions in the conditions of MCS Diagnostics and Buyer will only apply between parties if and insofar as they are part of the present conditions.
4. If one or more provisions of these general terms and conditions are at any time wholly or partially void or voidable, the other provisions of these general terms and conditions will remain fully applicable. The parties shall then consult in order to agree on new provisions to replace the void or nullified provisions, taking into account as much as possible the purpose and meaning of the original provisions.
5. If MCS Diagnostics does not always require strict compliance with these conditions, this does not mean that the provisions thereof do not apply, or that MCS Diagnostics would to any extent lose the right to require strict compliance with the provisions of these conditions in other cases.
Article 2. Quotations and offers
1. All quotations and offers from MCS Diagnostics are without obligation and valid for thirty days, unless the quotation sets a deadline for acceptance. MCS Diagnostics is only bound by offers or quotations if the acceptance thereof is confirmed by Buyer in writing within thirty days. An offer or quotation expires if the product to which the offer or quotation relates is no longer available in the meantime.
2. MCS Diagnostics cannot be held to its quotations or offers if Buyer can reasonably understand that the quotations or offers, or any part thereof, contain an obvious mistake or clerical error.
3. The prices stated in an offer or quotation are exclusive of VAT, other government levies and any costs to be incurred in connection with the agreement, including shipping and any transport and packaging costs, unless expressly stated otherwise. In the event that MCS Diagnostics has to advance any costs such as tax or import duties, Buyer shall reimburse them in full.
4. An offer already confirmed by Buyer can only be cancelled, changed or modified with MCS Diagnostics’ prior written consent. MCS Diagnostics reserves the right to charge a cancellation fee of 15% of the purchase price in the event of a cancellation.
5. Delivery times in MCS Diagnostics’ quotations are indicative and if exceeded do not entitle Buyer to rescission or damages, unless expressly agreed otherwise.
6. If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or the offer, MCS Diagnostics shall not be bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless MCS Diagnostics indicates otherwise.
7. A composite quotation does not oblige MCS Diagnostics to perform part of the assignment at a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.
8. If after the date of the offer, even if MCS Diagnostics has made a binding offer, and before delivery, one or more of the cost factors undergoes a change, MCS Diagnostics shall be entitled to adjust the agreed price accordingly. In the event of a price increase, the Buyer shall not be entitled to rescind the agreement. If the increase in the cost of materials increased by 10% or more, MCS Diagnostics may also choose to cancel an accepted offer where no delivery has yet taken place.
9. Buyer cannot derive any rights from any information regarding the product or price as described in an advertisement of MCS Diagnostics.
Article 3. Modification of Agreement
1. If during the performance of the Agreement it appears that for proper performance thereof it is necessary to amend or supplement the Agreement, parties will promptly and in mutual consultation amend the Agreement. If the nature, scope or content of the agreement is changed, whether or not at the request or indication of the Buyer, of the competent authorities et cetera, and the agreement is thereby changed in qualitative and/or quantitative respect, this may also have consequences for what was originally agreed. As a result, the amount originally agreed upon may be increased or decreased. MCS Diagnostics will give as much advance notice as possible. An amendment to the Agreement may furthermore alter the originally stated period of performance. Buyer accepts the possibility of amending the agreement, including the change in price and term of performance.
2. If the agreement is amended, including a supplement, MCS Diagnostics shall be entitled to perform the agreement only after it has been approved by the person authorised within MCS Diagnostics. Failure to perform or not immediately perform the amended agreement does not constitute a default by MCS Diagnostics, nor is it a ground for Buyer to terminate the agreement. Without being in default, MCS Diagnostics may refuse a request to amend the agreement if this could have qualitative and/or quantitative consequences, for example for the goods to be supplied in that context.
3. If MCS Diagnostics agrees a fixed price with Buyer, MCS Diagnostics is nevertheless entitled at all times to increase this price arising from
a power or obligation under the law or regulations or caused by an increase in the price of raw materials, wages etc. or on other grounds that were not reasonably foreseeable when the agreement was concluded. The Buyer shall not be entitled to dissolve the agreement on the grounds of the price increase.
4. MCS Diagnostics reserves the right to charge additional delivery costs if:
a. The value of the total purchased item is less than EUR 200;
b. The Buyer requests expedited delivery;
c. The Buyer requests MCS Diagnostics to return the purchased item to MCS Diagnostics.
Article 4. Execution of Agreement and Delivery
1. The delivery times agreed between MCS Diagnostics and the Buyer are stated by MCS Diagnostics as accurately as possible. These delivery times are indicative and not strict deadlines. The term starts the day after the conclusion of the agreement between MCS Diagnostics and Buyer, unless a final delivery date has been agreed.
2. If MCS Diagnostics requires information from the Buyer for the performance of the agreement, the performance period will not commence until after the Buyer has made such information available to MCS Diagnostics correctly and completely.
3. Buyer is not entitled to any compensation in any form whatsoever in the event of any exceeding of the stated delivery time, unless expressly agreed or if the exceeding is the direct and immediate consequence of gross negligence or intent on the part of MCS Diagnostics.
4. The Buyer may not cancel or dissolve the agreement on account of exceeding the delivery time or refuse to receive and/or pay for the goods.
5. Delivery will be made in a manner to be determined by MCS Diagnostics, unless otherwise agreed in writing. Buyer is obliged to accept the goods at the time they are made available to it.
6. If the agreement does not specify a time of delivery, Buyer shall in any event take delivery within thirty days after MCS Diagnostics has notified it that the purchased goods are ready for delivery. This is a firm deadline.
7. If Buyer refuses to take delivery or fails to provide information or instructions necessary for delivery, MCS Diagnostics is entitled to store the goods at Buyer’s expense and risk.
8. The delivery of the purchased goods may be subject to export and/or import laws and regulations and embargoes. The Buyer should be aware that as a result of this, the purchased item may have to be further or reshipped. If requested, the Buyer shall ensure proper documentation for the import and/or export of the purchased item. Buyer may request MCS Diagnostics to provide additional data relevant to obtaining necessary import/export documents. Buyer cannot derive any rights from the information provided by MCS Diagnostics.
9. All deliveries (and services) by MCS Diagnostics are Ex Works (ex factory) to the address specified by the other party unless the parties have expressly agreed otherwise. Buyer shall have an easily accessible unloading place at the address given by it, failing which MCS Diagnostics may charge the other party a reasonable unloading surcharge. Even if MCS Diagnostics arranges transport for the other party, this will always be at the expense and risk of the other party.
10. The risk of loss, damage or depreciation passes to the Buyer at the
moment at which the purchased goods are delivered to Buyer.
11. Unless otherwise agreed in writing, MCS Diagnostics is entitled to deliver in several stages. In the event of delivery in several stages, MCS Diagnostics may invoice the parts thus performed separately.
12. If the agreement is performed in stages, MCS Diagnostics may suspend the performance of those parts that belong to a subsequent stage until Buyer has approved the results of the preceding stage in writing.
13. MCS Diagnostics has the right to have certain work performed by third parties. MCS Diagnostics accepts no liability for work performed by third parties insofar as they themselves have entered into an agreement with Buyer.
Article 5. Payment
1. Payment shall be made within thirty days of the invoice date, in a manner to be indicated by MCS Diagnostics and in the currency invoiced, unless otherwise indicated in writing by MCS Diagnostics. If payment is made in another currency, it will be converted by MCS Diagnostics based on the current exchange rate. The costs of currency conversion shall be at the risk and expense of the Buyer.
2. MCS Diagnostics is entitled to invoice periodically.
3. Furthermore, Buyer is not entitled to any discount or compensation, however called, unless authorised in writing by MCS Diagnostics.
4. If Buyer is in default of timely payment of an invoice, Buyer will be in default by operation of law. The Buyer will then owe interest equal to the statutory interest rate plus 2%. The interest on the amount due and payable shall be calculated from the moment the Buyer is in default until the moment of payment of the amount due in full.
3. MCS Diagnostics shall be entitled to apply payments made by Buyer firstly to reduce the costs, then to reduce the interest due and finally to reduce the principal sum and current interest.
4. MCS Diagnostics may, without thereby being in default, refuse an offer of payment if the Buyer designates a different order for the allocation of payment. MCS Diagnostics may refuse full repayment of the principal sum if this does not include the accrued interest and collection costs.
5. Buyer is never entitled to set off any amount owed by it to MCS Diagnostics without MCS Diagnostics’ written consent.
6. MCS Diagnostics reserves the right to suspend its obligations under its agreement with Buyer if Buyer fails to make timely payment. If MCS Diagnostics suspends performance of its obligations, it shall retain its claims under the law and the agreement. If MCS Diagnostics proceeds with suspension or dissolution, it will in no way be liable to compensate MCS Diagnostics for any damage and costs incurred in any way as a result.
7. Objections to the amount of an invoice do not suspend the payment obligation. The Buyer not entitled to invoke Section 6.5.3 (Articles 231 to 247 Book 6 of the Dutch Civil Code) is also not entitled to suspend payment of an invoice for any other reason.
8. If the Buyer defaults or is in default in the (timely) performance of its obligations, all reasonable costs for obtaining extrajudicial satisfaction shall be borne by the Buyer. The extrajudicial costs will be calculated on the basis of what is customary in Dutch collection practice. However, if MCS Diagnostics has incurred higher costs for collection, which were reasonably necessary, the actual costs incurred will be eligible for reimbursement. Any judicial and execution costs incurred will also be recovered from Buyer. The Buyer shall also owe interest on the collection costs due.
9. If the Buyer fails or threatens to fail in the performance of a purchase agreement and/or a distribution agreement, it shall be obliged upon first request to provide adequate security for the performance of its obligation by, for instance, depositing cash, providing a bank guarantee, making an assignment, granting a pledge or mortgage right, et cetera. The extent, amount and manner of the security to be provided by Buyer are not subject to any limits and will be determined by MCS Diagnostics.
Article 6. Retention of title
1. All goods delivered by MCS Diagnostics under this agreement and any other agreements yet to be concluded will remain the property of MCS Diagnostics until Buyer has properly fulfilled all obligations under the agreement(s) concluded with MCS Diagnostics.
2. Goods delivered by MCS Diagnostics, which are subject to this retention of title, may not be resold and may never be used as a means of payment. Buyer is not entitled to pledge or otherwise encumber the goods falling under the retention of title.
3. Buyer must always do everything that can reasonably be expected of it to safeguard the property rights of MCS Diagnostics.
4. If third parties seize goods delivered under retention of title or wish to establish or assert rights thereon, Buyer is obliged to inform MCS Diagnostics thereof immediately.
5. Buyer undertakes to insure and keep insured the goods supplied under retention of title against fire, explosion and water damage and against theft, and to make the policy of this insurance available for inspection by MCS Diagnostics on first request. In the event of any insurance payment, MCS Diagnostics will be entitled to this money. Insofar as necessary, Buyer undertakes vis-Ã -vis MCS Diagnostics in advance to render its cooperation to everything that may (appear to) be necessary or desirable in this context.
6. In the event that MCS Diagnostics wishes to exercise its property rights as referred to in this article, Buyer gives MCS Diagnostics and third parties designated by MCS Diagnostics its unconditional and irrevocable permission in advance to enter all those places where the property of MCS Diagnostics is located and to repossess those goods. All costs for such repossession of MCS Diagnostics’ property shall be borne by Buyer. In the event of non-cooperation, Buyer will be liable to pay a penalty to MCS Diagnostics of EUR 500.00 per day from the day MCS Diagnostics is notified of its intention to exercise its property rights until the day of cooperation.
7. If the product is modified and/or MCS Diagnostics’ retention of title is extinguished by e.g. (un)proper mixing and/or accession or formation of property and a new right of ownership arises as a result thereof, MCS Diagnostics and Buyer agree in advance that the new property will be formed for MCS Diagnostics and it will become the owner thereof. In such event, Buyer shall cooperate in providing MCS Diagnostics with security, including the establishment of a pledge, with respect to the newly formed item.
Article 7. Dissolution and cancellation
1. MCS Diagnostics is entitled to dissolve the agreement if:
a. Buyer fails to fulfil its obligations under the agreement, or fails to do so in full or in a timely manner;
b. after the conclusion of the agreement MCS Diagnostics becomes aware of circumstances giving MCS Diagnostics good reason to fear that Buyer will not fulfil its obligations;
c. upon concluding the agreement, Buyer was requested to provide security for the fulfilment of its obligations under the agreement and such security is not provided or is insufficient;
d. due to any delay on the part of Buyer, MCS Diagnostics can no longer be required to perform the agreement against the originally agreed conditions.
conditions originally agreed upon.
2. Furthermore, MCS Diagnostics is entitled to dissolve the agreement if circumstances arise of such a nature that performance of the agreement is impossible or if other circumstances arise of such a nature that the unaltered maintenance of the agreement cannot reasonably be demanded of MCS Diagnostics.
be reasonably required from MCS Diagnostics.
3. If Buyer fails to comply with its obligations under the agreement and such non-compliance justifies dissolution, MCS Diagnostics shall be entitled to dissolve the agreement immediately and with immediate effect without any obligation on its part to pay any compensation or indemnification, while Buyer shall be obliged to pay compensation or indemnification by virtue of default.
4. In the event of liquidation, (an application for) a moratorium or bankruptcy, attachment – if and insofar as the attachment has not been lifted within three months – at the expense of the Buyer, debt restructuring or any other circumstance as a result of which the Buyer can no longer freely dispose of its assets, MCS Diagnostics will be free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any damages or indemnification. The claims of MCS Diagnostics against Buyer shall in that case be immediately due and payable. If Buyer has acquired the purchased item under a retention of title or if the purchased item is otherwise the property of MCS Diagnostics, Buyer must return the purchased item to MCS Diagnostics within 48 hours of being summoned to do so in writing.
5. If Buyer cancels a placed order in whole or in part, the goods ordered or prepared for it, plus any transport and delivery costs thereof and any working time reserved for the performance of the agreement, will be charged to Buyer in full.
6. If the agreement is dissolved, MCS Diagnostics’ claims on Buyer are immediately due and payable.
Article 8. Use of products
1. All MCS Diagnostics’ products are exclusively intended for internal, laboratory testing, unless explicitly stated otherwise in writing by MCS Diagnostics. Accordingly, without MCS Diagnostics’ explicit written consent, Buyer may not use the products for purposes other than those stated on the product or related documents.
2. Buyer shall use the products in accordance with the manual and to the standards of a reasonably acting expert in the relevant field of work. Buyer’s employees working with MCS Diagnostics’ products must be informed by Buyer of any risks associated with the use of the products.
3. Buyer shall use the products in accordance with applicable laws and regulations and in particular any applicable laws and regulations that establish safeguards for the use of chemicals. Accordingly, Buyer shall be responsible for obtaining the necessary rights, property and licences in order for Buyer to purchase, use and keep MCS Diagnostics’ products.
4. The Buyer is responsible for testing and verifying that MCS Diagnostics’ products are suitable for the desired purpose. Accordingly, MCS Diagnostics cannot provide any guarantees regarding suitability of its products for the purposes intended by the Buyer. Buyer cannot derive any rights from any suggestions for use, application or suitability of products mentioned by MCS Diagnostics.
5. Buyer may not advertise, distribute, resell or export the products except with MCS Diagnostics’ written consent or by entering into a distribution agreement with Buyer.
6. If MCS Diagnostics customises/orders a product at the request of the Buyer, the Buyer shall provide it with the required specifications prior to the commencement of work by MCS Diagnostics. MCS Diagnostics and Buyer shall agree on the method of production and testing before MCS Diagnostics commences any production of the good. The Buyer must purchase the agreed quantity of products in full. The order of a customised product/order on cannot be cancelled.
7. If the Buyer purchases chemicals from MCS Diagnostics then the Buyer will comply with the obligations under Regulation 1907/2006 of the European Union. Should MCS Diagnostics have to incur costs for registration of its products for a specific and different use of any chemicals or other products by Buyer, the costs shall be at Buyer’s risk and expense.
Article 9. Complaints and warranty
1. The goods to be delivered by MCS Diagnostics meet the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended in normal use.
2. The warranty mentioned in paragraph 1 of this article applies for a period of one year after delivery, unless the nature of the delivered goods dictates otherwise or parties have agreed otherwise. A warranty period of six months applies to parts. If the guarantee provided by MCS Diagnostics concerns a good produced by a third party, the guarantee is limited to the guarantee provided by the producer of the good, unless stated otherwise.
3. Any form of warranty shall lapse if a defect has arisen as a result of or arising from injudicious or improper use thereof, incorrect storage or maintenance thereof by Buyer and/or by third parties when, without the written consent of
MCS Diagnostics, the Buyer or third parties have made changes or tried to make changes to the good, attached other goods to it that should not have been attached to it or if it was processed or treated in a way other than prescribed.
prescribed manner. The right to guarantee shall also lapse if the Buyer has a third party carry out repair work on the purchased item. Nor is the Buyer entitled to any warranty claims if the defect was caused by the Buyer acting contrary to the manuals or the prescribed use of the product.
4. The performance of reagents shall be guaranteed until the expiry date indicated on the original packaging. If this expiry date is not clearly indicated on the packaging, a period of six months from delivery will be observed, provided that reagent is stored and used in accordance with MCS Diagnostics’ manual.
5. Parts subject to normal wear and tear are excluded from warranty at all times.
6. The following products are therefore not eligible for any warranty and may not be returned to MCS Diagnostics:
a. Refrigerated or frozen products;
b. Reagent and other products that have passed their expiry date;
c. Custom-made products;
d. Products with missing parts, labels or manuals.
e. Products without original packaging and label.
7. The Buyer is obliged to check the materials to be delivered immediately upon arrival at the place of delivery for transport damage, quantity and quality. Any transport damage and deviations from the agreed quantity of materials and/or quality must be reported in writing to MCS Diagnostics by Buyer within five days of delivery under penalty of forfeiture of the right to claim such damage. Any non-visible defects must be reported to MCS Diagnostics in writing immediately, but in any event no later than within seven days of their discovery. The report must contain as detailed a description of the defect as possible, to enable MCS Diagnostics to respond adequately. Buyer must give MCS Diagnostics the opportunity to investigate a complaint (or have it investigated). If MCS Diagnostics is not given the opportunity to investigate the complaint (or have it investigated), Buyer’s right to complain lapses.
8. If a defect is reported later than the above-mentioned terms, Buyer will not be entitled to repair, replacement, compensation or dissolution.
9. If the Buyer complains in time, this shall not suspend its payment obligation. The Buyer shall in that case also remain obliged to accept and pay for the other goods ordered.
10. If it is established that a good is defective and a complaint has been lodged in time, MCS Diagnostics will replace the defective good within a reasonable period of time after having received it back, or, if returning the good is not reasonably possible, after having been notified of the defect in writing by Buyer, at MCS Diagnostics’ discretion and depending on the type of product, or will take care of repairing the good or will pay Buyer a substitute fee. In the event of replacement, Buyer shall be obliged to return the good to be replaced to MCS Diagnostics and transfer ownership thereof to MCS Diagnostics, unless MCS Diagnostics indicates otherwise.
11. Buyer may not return products to MCS Diagnostics prior to its written consent.
12. MCS Diagnostics may investigate the complaint itself or may engage a third party for this purpose. If it is established that a complaint is unfounded, the costs incurred by MCS Diagnostics as a result, including investigation and transport costs, will be borne in full by Buyer.
13. After expiry of the warranty period, all costs for repair or replacement, including administration, shipping and call-out charges, will be charged to Buyer.
14. The Buyer is deemed to be familiar with the regulations/manuals applicable to the purchased item. The Buyer shall act in accordance with these regulations.
15. MCS Diagnostics is not obliged to handle a warranty claim if Buyer has not fulfilled its payment obligations towards MCS Diagnostics.
Article 10. Force majeure
1. MCS Diagnostics is not obliged to fulfil any obligation towards Buyer if it is hindered to do so as a result of a circumstance that is not attributable to its fault, and neither under the law, a legal act or generally accepted views
for its account.
2. In these general terms and conditions, force majeure means circumstances directly or indirectly resulting from or related to government measures or government regulations, natural disasters, pandemics, lockdowns, state of siege, state of war, technical failures within our company or the companies of our suppliers, stagnation in the supply of raw materials and trade value, abnormally high sickness absence, strikes exclusion, sit-down strikes, traffic impediments, technical failures of means of transport, import or export impediments, significant changes in the global transport, fire, explosion or other circumstances beyond our sphere of influence, if and insofar as the above impedes a proper and timely fulfilment of the agreement by us and we could not reasonably exert any influence on it. . MCS Diagnostics shall also be entitled to invoke force majeure if the circumstance preventing (further) performance of the agreement occurs after MCS Diagnostics should have performed its obligation.
3. MCS Diagnostics may suspend its obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, MCS Diagnostics shall be entitled to rescind the agreement, without any obligation to compensate Buyer.
4. Insofar as MCS Diagnostics has already partially performed or will be able to partially perform its obligations under the agreement at the time when force majeure occurs, and the part performed or to be performed is of independent value, MCS Diagnostics will be entitled to invoice the part performed or to be performed separately. Buyer is obliged to pay this invoice as if it were a separate agreement.
Article 11. Liability
1. If Buyer should default in the proper performance of its obligations vis-Ã -vis MCS Diagnostics, then Buyer shall be liable for all damage (including costs) on the part of MCS Diagnostics caused thereby directly or indirectly.
2. Should MCS Diagnostics be liable, such liability shall be limited to what is regulated in this provision.
3. MCS Diagnostics shall not be liable for any damages, of whatever nature, caused by the fact that MCS Diagnostics relied on incorrect and/or incomplete information provided by or on behalf of Buyer, unless such incorrectness or incompleteness was not disclosed to MCS Diagnostics.
unless such inaccuracy or incompleteness should have been known to MCS Diagnostics.
4. MCS Diagnostics’ liability in all cases is always limited to the amount paid out by its liability insurer in the relevant case. of the payment made by its insurer in the relevant case.
5. Should MCS Diagnostics be liable for any damage, MCS Diagnostics’ liability will be limited to a maximum of 50% of the value of the products delivered (excl. VAT), at least that part of the agreement to which the liability relates.
6. MCS Diagnostics shall only be liable for direct damage. MCS Diagnostics shall never be liable for indirect damage, including consequential damage, loss of profit,
lost savings and damage due to business interruption.
7. Direct damage is exclusively understood to mean the reasonable costs incurred to establish the cause and scope of the damage, insofar as the establishment relates to damage within the meaning of these general terms and conditions, any reasonable costs incurred to have MCS Diagnostics’ faulty performance comply with the agreement, insofar as such costs can be attributed to MCS Diagnostics, and reasonable costs incurred to prevent or limit damage, insofar as Buyer demonstrates that such costs have led to the limitation of direct damage as referred to in these general terms and conditions.
8. The limitations of liability set out in this Article do not apply if the damage is due to intent or gross negligence on the part of MCS Diagnostics or its executive employees.
9. MCS Diagnostics does not accept any liability for work, which is performed by third parties insofar as such third party has itself entered into an agreement with Buyer.
10. Buyer indemnifies MCS Diagnostics against all third party claims for product liability as a result of a defect in a product supplied by Buyer to a third party. Buyer is obliged to compensate all damages suffered by MCS Diagnostics in this respect including the costs of defence.
Article 12. Limitation period
1. Notwithstanding the statutory limitation periods, the limitation period for all claims and defences against MCS Diagnostics and third parties involved by MCS Diagnostics in the performance of an agreement is one year.
Article 13. Independence of parties
1. By virtue of these general conditions, no business relationship will be established which is not already described in the agreement between the parties. MCS Diagnostics and the Buyer therefore remain solely responsible for its own conduct, statements and products.
2. The Buyer acts as an independent party and always acts in its own name, for its own account and risk. Buyer is not allowed to present itself as, or create the impression of, acting as a commercial agent or representative of MCS Diagnostics if this has not been agreed.
Article 14. Certa Blue
1. The provisions of this article apply in particular to ‘Certa Blue’ products for which a distribution agreement has been established between the Buyer, also known as the distributor, and MCS Diagnostics. The other articles of these general conditions remain fully applicable.
2. Buyer shall ensure adequate service provision to any end customers of the purchased item. In the context of service and maintenance, original consumables and parts must be purchased from MCS Diagnostics. Buyer may not have repairs, maintenance or modifications performed on the products by any third party without MCS Diagnostics’ written consent.
3. Buyer is obliged to keep MCS Diagnostics informed and actively inform MCS Diagnostics of current and future specific laws and regulations applicable to MCS Diagnostics’ products. If, due to the aforementioned laws and regulations or a change thereof, sale of products and services is no longer profitable or opportune in MCS Diagnostics’ opinion, it is entitled to terminate the agreement. Buyer will not be entitled to any damages.
4. Part of the agreement between MCS Diagnostics and Buyer is the provision of services by MCS Diagnostics in the form of training courses. These training sessions will be provided free of charge, but Buyer will be liable for the costs to be incurred in relation to mileage allowances, meals and any overnight stays unless specifically provided for by MCS Diagnostics.
5. Performance of tests with Certa Blue products must at all times be performed by employees of the Buyer who have attended the necessary training courses provided by MCS Diagnostics. When performing tests with Certa Blue products, the instructions in the manuals must be followed. If the Buyer fails to comply with this provision, the Buyer’s right to any warranty claims shall lapse.
Article 15. Indemnification
1. Buyer indemnifies MCS Diagnostics against any claims by third parties, who suffer damage in connection with the performance of the agreement and whose cause is attributable to parties other than MCS Diagnostics.
2. If MCS Diagnostics should be held liable by third parties on that account, Buyer is obliged to assist MCS Diagnostics both extra-judicially and judicially, and immediately do all that may be expected of it in that case. If Buyer fails to take adequate
adequate measures, MCS Diagnostics is entitled, without notice of default, to take such measures itself. All costs and damages incurred on the part of MCS Diagnostics and third parties as a result shall be entirely at the expense and risk of Buyer.
Article 16. Intellectual property
1. MCS Diagnostics has the right to use the knowledge acquired by it in the execution of an agreement for other purposes as well, as long as no strictly confidential information of Buyer is brought to the knowledge of third parties. MCS Diagnostics is therefore the owner of such intellectual property.
2. MCS Diagnostics owns certain intellectual property such as (non-exhaustive) trademarks, the brand name and logos. Without MCS Diagnostics’ explicit, written consent, Buyer may not use any brand names, trademarks, logos or other intellectual property that is so similar to MCS Diagnostics’ intellectual property as to create uncertainty as to ownership. The Buyer may only use the logos in line with MCS Diagnostics’ guideline (brandbook?).
3. Any marketing, promotional material or any other publicity material referring to MCS Diagnostics and/or its products may only be used after written permission from MCS Diagnostics.
4. Buyer is not entitled, without MCS Diagnostics’ written approval, to modify and/or re-brand the purchased item and as such resell the purchased item.
5. If Buyer infringes MCS Diagnostics’ intellectual property rights in the Netherlands or abroad, Buyer shall pay an exigible penalty of EUR 20,000 and EUR 200 per day that the infringement continues.
Article 17. Confidentiality
1. Buyer is obliged to keep confidential all documents and other data, originating from MCS Diagnostics, which are designated as confidential or of which Buyer should know or ought to know that they should be considered confidential. Confidential are in any event facts which Buyer would also qualify as confidential if it were its own company. If confidentiality is breached then the Buyer shall pay an exigible penalty of EUR 20,000 and EUR 200 for each day that the breach continues.
Article 18. Software
1. If Buyer uses software of MCS Diagnostics and/or its suppliers including software and firmware integrated in its products, then the conditions as included in the agreement accompanying the software will apply.
2. In the absence of conditions provided with the software, this article applies. Supplier shall make the agreed software available to Customer for use during the term of the agreement on the basis of a user licence. The right to use the software is non-exclusive, non-transferable, non-pledgeable and non-sublicensable. MCS Diagnostics and/or one of its contracted suppliers will therefore remain the owner of the software at all times. Buyer is not allowed to transfer or lease the software.
3. The software made available for use is protected by national and international copyright laws and treaties. The Buyer is only entitled to make copies of the software if:
a. the making of copies is necessary for the use of the software in accordance with the agreed purpose of use;
b. the making of copies serves to store a back-up to prevent loss of results in the event of a malfunction;
4. Buyer is only allowed to use the software in combination with the purchased products of MCS Diagnostics and for its established purpose. Buyer must be aware of the software as supplied and accepts its functionalities and any limitations thereof at the time of conclusion of the purchase agreement.
5. If the software is found to contain errors, Buyer shall report such errors to MCS Diagnostics in writing, clearly, in detail and comprehensibly within five days of discovery of the errors. MCS Diagnostics will then investigate alleged errors. If there are any errors which hinder the correct functioning of the software, MCS Diagnostics will endeavour to remedy the errors within a reasonable period of time under the warranty provisions of these general terms and conditions, whereby MCS Diagnostics is entitled to apply temporary solutions, programme workarounds or problem-avoiding restrictions.
6. Buyer is not permitted to dismantle, internally examine or modify the equipment and/or software.
7. MCS Diagnostics may replace, repair or update the software. Buyer shall cooperate in this and shall ensure timely updates of the software.
8. If Buyer breaches any provisions relating to software of the Agreement with the software or these general terms and conditions, then Buyer’s right to use the software will lapse and MCS Diagnostics will revoke the licences. Buyer shall immediately return all provided equipment (including disks and USB sticks) containing copies of the software to MCS Diagnostics.
Article 19. Data protection
1. MCS Diagnostics shall use and process personal data on behalf of Buyer in accordance with Buyer’s agreed written instructions. In doing so, MCS Diagnostics will observe the provisions of the General Data Protection Regulation. However, Buyer realises that despite all security measures taken by MCS Diagnostics, no absolute certainty against unauthorised consultation can be given.
3. Buyer warrants to MCS Diagnostics that it acts in accordance with the above Regulation, that it adequately secures its systems and infrastructure at all times and that the content, use and/or processing of the personal data is not unlawful and does not infringe any right of a third party.
3. Buyer shall not be entitled to recover from MCS Diagnostics any administrative fine imposed on it by the regulator on any legal basis whatsoever.
4. For more information to MCS Diagnostics’ policy on personal data, please visit MCS Diagnostics’ website under privacy policy.
Article 20. Applicable law and disputes
1. All legal relationships to which MCS Diagnostics is a party are exclusively governed by Dutch law, even if an obligation is wholly or partly performed abroad or if the party involved in the legal relationship is domiciled there.
2. The court in MCS Diagnostics’ place of business has exclusive jurisdiction to hear disputes, unless the law imperatively prescribes otherwise. Nevertheless, MCS Diagnostics has the right to submit the dispute to the court with jurisdiction under the law.
3. Parties will only appeal to court after they have made every effort to settle a dispute by mutual agreement.
4. The applicability of the Vienna Sales Convention is explicitly excluded.
Article 21. Location and amendment of terms and conditions
1. These terms and conditions have been filed with the Chamber of Commerce at 08.02.2024
2. The last filed version or the version valid at the time the legal relationship with MCS Diagnostics was established shall always apply.
3. MCS Diagnostics reserves the right to amend these general terms and conditions unilaterally. Any amendments will be included by MCS Diagnostics in the version of the general conditions as published on the website and will be registered in the register of the Chamber of Commerce.
4. The Dutch text of the general terms and conditions will always be decisive for the interpretation thereof.