General Terms and Conditions of Beneficial Microbes Consultancy
Article 1: Definitions.
In these general terms and conditions the following terms have the following meanings:
1.1 – Beneficial Microbes Consultancy (abbreviated below as BMC):
The company registered with the Chamber of Commerce in Utrecht (Midden Nederland) under KvK no. 59535806, engaged in consultancy in the area specified in detail in the agreement between Parties on behalf of and for the account of Client;
1.2 - the Client:
Any business, institution or private individual as the party commissioning BMC to perform consultancy, as specified in 1.1 and/or the Agreement;
1.3 - Agreement:
A document drawn up by BMC that forms a specified offer for the (proposed) Commission;
1.4 - Commission:
The consultancy activities as carried out by BMC in the areas including, but not limited to, beneficial microbes, probiotics, prebiotics, synbiotics, gut microbiota composition, gut microbiota activity, gut health, barrier function, host-microbe interaction, immunomodulation, dietary fiber, glycosyl hydrolases;
1.5 - Scope of the Commission:
The proposed area of application of the outcome of the Commission as specified in the Agreement;
1.6 - General terms and conditions:
These and conditions for commissions to BMC;
1.7 - IP rights:
All intellectual and industrial property rights including, but not limited to, copyrights, trade name rights, design rights, trademark rights and patent rights, and rights regarding domain names;
1.8 - 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;
1.9 - 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.
Article 2: General matters to be taken into account.
2.1 – Applicable law.
The Agreement is governed exclusively by the substantive laws of The Netherlands where BMC is legally located.
2.2 – Exclusion of other terms and conditions.
The Agreement is subject only to the General Terms and Conditions.
2.3 – Valid changes, additions and/or expansions.
BMC can only be bound by changes or additions to, an expansion of and/or deviation from the Commission or the Agreement or a deviation from the General Terms and Conditions if they are confirmed on behalf of BMC in writing or by e-mail followed by written confirmation by a person who is officially authorized to represent BMC. Such changes, additions, expansions and/or deviations are only valid in respect of the specific Agreement in which they have been agreed with the Client.
Article 3: Scope of the commission and concluding of the agreement.
3.1 - Scope of the Commission.
Prior to concluding a Commission, BMC will send the Client a (draft) Agreement. The (draft) Agreement describes the proposed Commission and the Scope of the Commission. The (draft) Agreement is valid for two weeks after it has been issued by BMC, unless explicitly stated otherwise by BMC in the (draft) Agreement.
3.2 - Concluding of the agreement.
The Commission or Agreement is concluded when the Client's written consent, or consent by e-mail, to the Agreement has been received in good time. If the Client asks BMC to start work before it has received the Client's consent to the Agreement, the Client's request will be regarded as consent to the entire Agreement as issued by BMC. Once the Agreement including all annexes has been created as described above, it contains all arrangements made by BMC and the Client regarding this Commission; any arrangements and commitments not contained in the final Agreement are cancelled as a result.
3.3 – Unpermitted use of the Agreement.
In the (draft) Agreement, BMC incorporates its ideas, knowledge and expertise regarding the proposed Commission and the manner in which it can be performed. For that reason, BMC requires that the Client only uses the (draft) Agreement (including any changes, additions and expansions) for determining whether the Client will award BMC the Commission and not for any other purposes. If no Agreement is created, BMC only holds rights with regard to the contents of the (draft) Agreement, with the exception of any information from the Client that it contains.
3.4 – Third-party commissions within the Scope of the Commission.
BMC may accept commissions from third parties within the Scope of the Commission during the performance of the Commission, unless BMC and the Client have explicitly agreed otherwise in writing.
Article 4: Performance, timelines and outcome of the Commission.
4.1 – Performance of the Commission.
BMC will perform the Commission within the agreed estimated term. If this term is likely to be exceeded,
BMC will contact the Client immediately to discuss this.
4.2 – Outcome of the Commission.
The nature of consultancy activities implies uncertainty regarding the outcome of the Commission. That is why BMC solely undertakes to aim for a practicable outcome of the Commission when performing the Commission, which outcome BMC will record in a Final Report that will be provided to the Client, unless the Client and BMC agree otherwise.
4.3 – Changed insights or misunderstandings discovered during performance of the Commission.
If unmistakable shortcomings in the methods used in the Commission or other significant details related to the consultancy are discovered during performance of the Commission, BMC will inform the Client accordingly. If there are any misunderstandings regarding the contents and/or the performance of the Agreement because BMC did not receive information from the Client, or because that information was inaccurate or incomplete, not received in good time or in writing, this will be the Client's risk, unless that would not be reasonable under the circumstances.
4.4 – Use of agents for the Commission.
In the (path towards) performance of the Commission, BMC may engage agents, provided that this does not create any reasonably anticipated confidentiality risk.
Article 5: Confidentiality.
5.1 – Confidentiality regarding the Commission.
BMC will keep the outcome of the Commission as laid down in the Final Report confidential for two years after the date of the final invoice or the date of delivery of the Final Report, whichever comes first, with the exception of:
a. BMC Background, as well as;
b. calculation methods, software or experimental working methods developed by BMC, the development of which was not directly intended with the award of the Commission;
c. use of BMC’s findings in a form that cannot be traced back to the Client or the Client’s Commission, if the Commission comprises a literature research;
d. BMC and the Clients agree to publish the outcome of the Commission.
BMC will only observe confidentiality throughout the period stated in this Article with regard to the Client’s name and the fact that the Client’s Commission has been performed if this was agreed when the Commission was awarded.
BMC is not obliged to observe confidentiality if and in so far as disclosure is required to explain matters to third parties in the event of misunderstandings resulting from the Client's disclosure of the outcome of the Commission.
Likewise, BMC is no longer obliged to observe confidentiality if BMC discovers a serious danger to persons or goods. However, in that case BMC will consult with the Client, if possible, before informing the persons that are in danger and/or the competent authorities of the dangerous situation.
Furthermore, BMC will no longer be obliged to observe confidentiality if BMC is required to provide information pursuant to a decision issued by a court of law or supervisory body incorporated under public law. If possible, BMC will consult with the Client before providing any information in such a situation.
Article 6: Rights to Background, rights to Foreground.
6.1 – Background rights.
All rights the Client owns or obtains with regard to the Client's Background will remain vested in the Client. All rights BMC owns or obtains with regard to its Background will remain vested in BMC.
6.2 – Use of Background.
BMC does not acquire the right to use the Client's Background, other than and only in so far as necessary to perform the Commission. Vice versa, commercial use of BMC Background – also if it is part of the outcome of the Commission – is subject to BMC's explicit prior written consent. Such consent may be subject to further conditions.
6.3 – Foreground rights.
If the Client has created any Foreground, or parts of it, within the context of the Commission with BMC, the relevant IP Rights or the exclusive right to vest these will, of course, accrue to the Client. The written documentation pertaining to the Commission is decisive for the scope of the Client's IP Rights (or the exclusive right to vest them). Foreground created by or on behalf of BMC accrues to BMC, unless explicitly agreed with the Client in writing in any other way. In the latter case, the specific terms and conditions under which said rights will be transferred to the Client will also be laid down in this provision.
6.4 – Protection of Foreground.
If the Client or BMC expects that the Foreground, or parts of it, can be protected by performing an additional action, for example patenting, the Client and BMC 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, BMC and the Client will provide each other with all cooperation reasonably required to vest the right by performing an additional action, for example patenting. Any further cooperation may be subject to further conditions. BMC will not investigate the possibility of protecting Foreground with an IP Right, unless explicitly stated in the Agreement.
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 the Client or BMC have an exclusive right in accordance with Article 6.3 are excluded from this provision.
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.
In the event the Client discovers an infringement of IP Rights with regard to BMC Foreground, the Client must notify BMC as quickly as possible, and BMC and the Client will discuss the matter.
6.5 – Use of Foreground.
The Client will acquire the right to use the part of the Foreground accrued to BMC – as provided to the Client by delivery of the Final Report – within the Scope of the Commission, subject to the limitations laid down in this Article 6.5. The right of use referred to in the previous sentence will be an exclusive right for two years from the date of the final invoice or the date of the Final Report whichever came first, except with regard to any incorporated BMC Background. BMC will be permitted at all times to use its Background during this exclusivity period for the benefit of third parties or have such third parties use it.
BMC will not investigate the existence of third-party IP Rights to the Foreground, unless explicitly stated otherwise in the Agreement.
During the exclusivity period, BMC is entitled at all times to use the working methods developed in the context of a Commission, the development of which was not directly intended with the award of the Commission, by or for the benefit of third parties.
BMC acquires the right to make free use at all times of the knowledge and experience gained by BMC during the performance of the Commission on its own behalf, for the benefit of third parties, or have third parties do so, however with due observance of the exclusivity period referred to in this Article 6.5.
Article 7: Rights of use of the final report.
7.1 – Copyrights.
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 BMC.
7.2 – Use of the final report.
In connection with BMC’s position in society and its scientific integrity, BMC considers it important for a Final Report to be viewed in its context and that its contents can be examined in their entirety, including any scientific or other nuances. A Final Report, as well as any preliminary or interim reports or subsequent explanatory notes to the Final Report, is therefore intended solely for the Client’s own use; any other use requires BMC’s prior written consent.
‘Any other use’ as referred to in the sentence above means, among other things:
a. reproduction or disclosure in whole or in part by means of print, photocopy, in electronic form or in any other way, or storage in a searchable information file;
b. making available to anyone other than parties with an immediate interest, considering the Scope of the Commission, which also includes use by or on behalf of third parties;
c. use or allowing the use, in whole or in part, with a view to lodging claims, or taking legal action;
d. use or allowing the use, in whole or in part, with a view to advertising, promotion or anti-advertising or for soliciting sales or services in a more general sense.
Such prior consent by BMC may be subject to further conditions.
Article 8: Price and payment.
8.1 – Price.
If a ‘fixed price’ has been agreed with the Client, this price will be the price for the Commission, excluding the expenses incurred by BMC in consultation with the Client. If a fixed price as referred to in the previous sentence has been agreed with the Client, but – with the Client's consent – the Commission is changed or expanded, or if it turns out during the performance of the Commission that the Client did not, or insufficiently, inform BMC about the Client's wishes, requirements or preconditions when the Agreement was concluded, BMC will invoice the additional work resulting from this on the basis of actual costs.
If a ‘guide price’ or ‘ballpark price’ has been agreed with the Client, this price is a non-binding estimate of the price for the Commission, excluding the expenses incurred by BMC in consultation with the Client.
In case a ‘guide price’ has been agreed with the Client, or if no price has been agreed with the Client in advance, the price for the Commission including the expenses incurred by BMC in consultation with the Client will be determined and invoiced on the basis of actual costs. When calculating the actual costs, BMC will determine the rates applicable to the year in which the part(s) of the Commission is (or are) performed on the basis of the methods generally used at BMC. If the period between the Agreement date and the date on which the work will end is one year or more, BMC 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 BMC.
8.2 – Go/No-Go milestones with BMC in respect of the Commission.
In the Agreement, BMC and the Client can only explicitly and in writing determine specific milestones at which the Client may decide to continue (Go) or terminate or suspend performance of the Commission (No-Go), but only with regard to a Commission with a guide price in excess of € 20.000,=. BMC may attach further conditions to the determination of (passing) specific milestones or the ensuing termination or suspension of the Commission. At request, BMC and the Client may make arrangements in that context regarding summary interim reports. Such (preparation of a) summary interim report may be subject to further conditions as well.
8.3 – Payment.
BMC may at all times require the Client to make advance or interim payments. The payment schedule will be part of the final Agreement. All amounts quoted by BMC in an Agreement or General Terms and Conditions are exclusive of 21% VAT, as well as other expenses possibly made within the scope of the Commission, including but not limited to shipment, travel, lodging and administration costs, unless stated otherwise. All amounts due hereunder shall be payable in Euros. Transfer costs are for the expense of the Client, such that BMC will always receive the full amount stated on the invoice. BMC requires the Client to pay its invoice or invoices within fifteen (15) days of the invoice date. The Client may not deduct any BMC invoices from amounts owed by BMC to the Client, or set off such invoices against such amounts.
8.4 – Failure of payment in full or in part.
If the Client does not pay the BMC invoice within fifteen (15) days, nor after having received written notice of default, the Client will owe BMC interest (i.e. the statutory interest applicable to commercial transactions) and all reasonable costs incurred by BMC to obtain payment of its invoice, in addition to the unpaid invoice amount. The Client will only 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.
Article 9: Consequences of non-performance.
9.1 – Consequences if BMC or the Client fail to perform the Agreement.
If BMC or the Client 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.
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 11.4, will no longer be obliged to perform its remaining obligations under the Agreement and may terminate the Agreement.
Any claims the Client may have against BMC and/or any agents engaged by BMC in the context of performance of the Commission must be explicitly notified to BMC 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 the Client demonstrate that it was impossible for the Client to notify BMC within the set term.
9.2 – Dispute.
If a dispute arises in respect the acceptance or the performance of the Agreement or any related agreements that BMC and the Client cannot resolve in mutual consultation, such a dispute will exclusively be submitted - by the Client or by BMC - to the competent court in Arnhem, and the parties consent to the jurisdiction of the court there.
Article 10: Liability and damages.
10.1 – Consequences if BMC or the Client fail to perform the Agreement.
BMC is only liable for loss or damage resulting directly from a failure to perform its obligations that is attributable to BMC.
10.2 – Limitation of liability.
If BMC is liable pursuant to the contractual liability referred to in the previous Article and/or for any other reason, BMC can only be held liable for direct loss or damage suffered by the Client up to an amount that is limited in all cases to a maximum of the invoice value of that part of the assignment from which the liability arises.
In the event of a Commission with a duration of more than six (6) months, the liability shall, contrary to the previous sentence, furthermore be limited to the part of the fee still due for the last six (6) months.
Moreover, if injury or damage for which BMC bears liability is caused to persons or things in or in connection with the performance of the Commission or otherwise, that liability shall be limited to the amount payable under the general liability insurance taken out by BMC.
10.3 – Damage that BMC is not liable for.
In no event, with due observance of the provisions of Article 10.1, is BMC, including any agents engaged by BMC in the context of performance of the Commission, furthermore liable for:
a. loss or damage suffered by the Client as a result of application or use of the outcome of the Commission, other than in the event of willful intent or gross negligence on the part of BMC;
b. loss or damage arising as a result of the fact that the outcome of the Commission cannot be patented or because application of the outcome of the Commission infringes third-party rights.
10.4 – Claim of third parties against BMC.
If third parties assert a claim against BMC and/or any agents engaged by BMC in the context of performance of the Commission regarding loss or damage arising from application or use of the outcome of the Commission by
the Client or by a third party to whom the Client have made the outcome of the Commission available, the Client must fully indemnify BMC and/or any agents engaged by BMC in the context of performance of the Commission, other than in the event of willful intent or gross negligence on the part of BMC.
Article 11: Termination of Agreement.
11.1 – Term of Agreement end its ending.
An Agreement is concluded for an indefinite period of time and ends upon completion of the Commission. BMC will be deemed to have completed the Commission once BMC has made the Final Report referred to in 4.2 available to the Client.
The Agreement will end automatically, with immediate effect and without any obligation to pay damages if:
a. the Client is declared bankrupt;
b. the Client is granted temporary suspension of payment;
c. the Client’s business is liquidated or wound up;
d. prejudgment or executory attachment is levied on a substantial part of the Client’s tangible and/or intangible assets or other goods of the Client.
11.2 – Premature termination of Agreement.
The Client may terminate the Agreement prematurely. If the Agreement is terminated prematurely, BMC is entitled to a part of the price, to be reasonably determined. BMC may only terminate the Agreement prematurely for serious reasons within the meaning of Book 7, Article 408 (2) of the Dutch Civil Code (‘Termination of the service provision agreement’), which states that "A service provider who entered into the service provision agreement in the course of his professional practice or business, may only terminate the agreement if it has been concluded for an indefinite term and it does not end at the completion of the service, unless there are profound reasons for its termination".
11.3 – Effectuating premature termination of Agreement.
The Agreement is automatically terminated prematurely in the events referred to in Article 11.1 (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 BMC receives the written notification regarding early termination or any later date mentioned in that notification.
In the event of early termination of the Agreement, any preliminary or interim outcome of BMC’s work is premature. That is why in the event of early termination, the Client is not entitled to use any preliminary or interim outcome of BMC’s work, neither for itself, nor may it use such outcome for the benefit of third parties or have third parties use such outcome. If BMC and the Client nevertheless explicitly agree in writing that the Client acquires IP Rights to any preliminary or interim outcome of BMC’s work, this is done under the condition precedent of payment of part of the price to be reasonably determined by BMC as referred to in Article 11.2.
11.4 – Provisions that will continue to 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, rights of use, confidentiality, payment, – will continue to apply in full.
Beneficial Microbes Consultancy
Registered office: Registration Chamber of Commerce: KvK 59535806
Johan Karschstraat 3 VAT identification number: NL102873306B01
6709 TN Wageningen IBAN NL20INGB0006778214
The Netherlands BIC/SWIFT: INGBNL2A
© Beneficial Microbes Consultancy – General Terms and Conditions – version 2.0 – January 15, 2015