1. Definitions and Interpretation
For the purposes of the General Terms and Conditions, the following terms shall have the meanings specified or referred in this article 1.1:
Affiliate: has the meaning as set out in Article 11 of the Belgian Company Code
Applicable Laws<: means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any governmental authority; Ardena: means Ardena Holding NV, with company address at Kleimoer 4, 9030 Mariakerke and registration number 0633855309, or any of its Affiliates as the case may be with whom the Contract Giver as entered into the Contract; Background IP: means IP owned prior to the effective date of the Contract or developed or acquired in parallel but outside the scope of the Contract; Confidential Information: means data and/or other materials in written or other tangible form or orally, disclosed to the other Party under the Contract, or generated in connection with the Deliverables, or otherwise under the Contract; Contract: the contract between Ardena and the Contract Giver for execution of the Order; Contract Giver: the person or firm who places the Order and purchase the Deliverables from Ardena; Background IP: means Background IP owned by the Contract Giver; Foreground IP: means all IP made, discovered, written, first reduced to practice or otherwise produced; Deliverable: means the Services and/or Samples and/or Products to be provided by Ardena as set out each time in the Order. General Terms and Conditions: means this general terms and conditions. IP: means all inventions, discoveries, improvements, techniques, ideas, data, results, processes, practices, know-how, knowledge and other technology, whether or not patentable, copyrightable or protectable as a trade secret; Order: the Contract Giver‘s order for the supply of the Deliverables, including the Contract Giver‘s written acceptance of Ardena‘s quotation, and these General Terms and Conditions; Party: means any Party to the Contract as the case may be. 1.2 Interpretation
a) The titles and headings included in these General Terms and Conditions are for convenience only and do not express in any way the intended understanding of the Parties. They shall not be taken into account in the interpretation of the provisions of these General Terms and Conditions;
b) The words “herein”, “hereof”, “hereunder”, hereby”, “hereto”, “herewith” and words of similar import shall refer to these General Terms and Conditions as a whole and not to any particular clause, paragraph or other subdivision;
c) The words “include”, “includes”, including” and all forms and derivations thereof shall mean including but not limited to;
d) All terms defined in these General Terms and Conditions and in the Contract shall have the same meaning regardless of whether they are used in the singular or plural number;
e) For the calculation of a period of time, such period shall start the next following day after the day on which the event triggering such period of time has occurred. The expiry date shall be included in the period of time. If the expiry date is a Saturday, a Sunday or a bank holiday in Belgium, the expiry date shall be postponed until the next business day in Belgium. Unless otherwise provided herein, all periods of time expressed in a number of days, shall be calculated in business days in Belgium (excluding Saturdays, Sundays and bank holidays);
f) Unless otherwise provided herein, all references to a fixed time of a day shall mean Brussels time;
2.1 These General Terms and Conditions shall apply to all Orders and Contracts. Parties agree and recognize explicitly that no other general (and/or special) purchasing, delivery or other conditions shall apply thereto than these General Terms and Conditions.
2.2 An Order shall only be considered as valid and agreed by Ardena when Ardena has expressly confirmed said Order by post, fax and/or other means of electronic communication customary in the market, at which point and on which date the Contract shall come into existence.
2.3 The Contract constitutes the entire agreement between the parties. The Contract Giver acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Ardena which is not set out in the Contract .
2.4 Any drawings, descriptive matter or advertising issued by Ardena and any descriptions of the services, products or samples contained in Ardena‘s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of possible services and/or goods and/or samples described in them. They shall not form part of the Contract or have any contractual force.
2.5 These General Terms and Conditions apply to the Order and the Contract to the exclusion of any other terms that the Contract Giver seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by Ardena shall not constitute an offer, and is only valid for the period stated on the quotation or where not stated, it shall be deemed to expire at the end of the calendar month in which it was issued.
3. Ardena Performance Obligations and restrictions
3.1 Ardena shall perform its obligations hereunder in conformance with all Applicable Laws and Ardena reserves the right to amend the Deliverables if required by any applicable statutory or regulatory requirements;
3.2 Contract Giver acknowledges that the work performed under the Contract is experimental in nature and Ardena does not guarantee or commit to the achievement of a result, including the ability to deliver a Deliverable.
4.1 Ardena shall be entitled to subcontract any of the performance of the Deliverable and to perform any outside analytical testing.
4.2 Ardena will use best efforts to ensure the compliance of its subcontractors with the terms and conditions of this Contract.
5. Contract Giver Obligations
The Contract Giver shall :
5.1 co-operate with Ardena in all matters relating to the Deliverables;
5.2 provide Ardena with such information and materials as Ardena may reasonably require to supply the Deliverables and ensure that such information is accurate in all material respects;
5.3 where applicable, obtain and maintain all necessary licences, permissions and consents which may be required for performance of the Deliverables before the date on which such performance is to start;
5.4 If Ardena‘s performance of any of its obligations in respect of the Deliverables is prevented or delayed by any act or omission by the Contract Giver or failure by the Contract Giver to perform any relevant obligation (a “Contract Giver Default”):
a) Ardena shall without limiting its other rights or remedies have the right to suspend performance of the Deliverables until the Contract Giver remedies the Contract Giver Default, and to rely on the Contract Giver Default to relieve it from the performance of any of its obligations to the extent the Contract Giver Default prevents or delays the Ardena‘s performance of any of its obligations;
b) Ardena shall not be liable for any costs or losses sustained or incurred by the Contract Giver arising directly or indirectly from Ardena‘s failure or delay to perform any of its obligations as set out in this article 5.4; and
c) the Contract Giver shall reimburse Ardena on written demand for any costs or losses sustained or incurred by Ardena arising directly or indirectly from the Contract Giver Default.
6. Delivery, storage, acceptance
a) Ardena shall deliver a Product or Sample to the Contract Giver Ex Works (the Incoterms 2010) Ardena facility.
b) Contract Giver acknowledges that agreed delivery times are best estimates and that Ardena shall use commercial reasonable efforts but cannot guarantee that agreed delivery times shall be met at all times.
c) If and as soon as Ardena has indications that delivery will be delayed it will forthwith notify Contract Giver.
a) Ardena will store the Deliverables at Ardena’s premises or at the premises of a subcontractor, in an appropriate environment.
b) If the Contract Giver fails to accept or take delivery of the Deliverables within three (3) Business Days of Ardena notifying the Contract Giver that the Deliverables are ready then except where such failure or delay is caused by a force majeure event or by Ardena‘s failure to comply with its obligations under the Contract, these storage services shall take place at the risk of Contract Giver, and Ardena is authorized to charge a reasonable compensation to Contract Giver for any storage services for such Deliverables.
a) Within 5 (five) days following Contract Giver’s receipt of the Deliverable Contract Giver shall provide Ardena with written notice of (i) its acceptance of the Deliverable (the “Acceptance Notice”) or (ii) rejection of the Deliverable (the “Rejection Notice”).
b) If the Contract Giver fails to provide Ardena with, as the case may be, Acceptance or Rejection Notice notice within such 5 (five) day period, the Deliverable will be deemed to be accepted by Contract Giver.
c) Any Rejection Notice issued shall state in reasonably sufficient detail the reason why the Deliverable is not accepted. Parties will in consultation determine the cause of the rejection and the appropriate actions to resolve the matter.
d) If Contract Giver properly rejects the Deliverable for reasons attributable to Ardena, Ardena shall either be responsible (i) to replace the Deliverable at its own expense or (ii) shall, as an alternative to replacement and at Contract Giver’s request refund or credit to Contract Giver any amounts paid for such Deliverable Such replacement or refund shall be the Contract Giver’s sole remedy.
e) If Ardena does not agree with Contract Giver’s rejection of the Deliverable the Parties shall promptly meet and attempt to resolve their disagreement as to whether the Deliverableis non-conforming. If, after reasonable efforts to resolve the disagreement, the Parties still disagree as to whether the Deliverable was properly rejected, the Parties shall promptly submit the Deliverable or a sample thereof to a mutually agreed upon independent third party laboratory to review records and test data and to perform comparative tests and/or analyses on samples of the alleged defective Deliverable and cooperate promptly and completely with such independent laboratory as necessary to complete such review as soon as reasonably possible. The independent laboratory’s results shall be final and binding. If such laboratory determines that Contract Giver’s rejection of such Deliverable was improper, the will automatically be deemed to have been accepted by Contract Giver and Contract Giver shall pay Ardena for the Deliverableinitially rejected by Contract Giver promptly upon resolution of the dispute. If such laboratory determines that such Deliverable was reasonably rejected article 6.3. (d) will apply.
7. Title and Risk
7.1 The risk in the Deliverables shall pass to the Contract Giver on completion of delivery.
7.2 Title to the Deliverables shall not pass to the Contract Giver until Ardena has received payment in full for the Deliverables.
7.3 Until title to the Deliverables has passed to the Contract Giver, the Contract Giver shall:
a) store the Deliverables separately from all other goods held by the Contract Giver so that they remain readily identifiable as Ardena‘s property;
b) not remove, deface or obscure any identifying mark or packaging on or relating to the Deliverables;
c) maintain the Deliverables in satisfactory condition and keep them insured against all risks for their full price on Ardena‘s behalf from the date of delivery;
d) give Ardena such information relating to the Deliverables as Ardena may require from time to time.
8. Invoicing and payment terms
8.1 Fees, prices and rates are expressed in Euro (EUR), unless explicitly stated otherwise, and are exclusive of VAT and other government levies and taxes that are or may be due, where required. Ardena‘s invoices shall be paid at the latest within thirty (30) days from invoice date. Payment shall take place without any set-off, deduction and/or suspension. All payments due shall be non-refundable and non-creditable, and shall be made by bank wire transfer from immediately available funds to the bank account of Ardena as notified to the Contract Giver.
8.2 If an invoiced amount has not been paid on the due date, Contract Giver shall be in default by the mere expiry of that period, without any notice of default being required. In that case, Ardena is entitled to claim default interest calculated at the then applicable statutory rate, plus the reimbursement or reasonable collection costs, that will be fixed at ten percent (10%) of the invoiced amount, with a minimum of EUR 115,00 (one hundred and fifteen euro).
8.3 Where Ardena incurs additional costs as a consequence of circumstances in respect of which the Contract Giver is responsible, Contract Giver shall reimburse Ardena for such costs.
9. Term and Termination
9.1 Either Party may terminate the Contract as follows:
a) In the event that a Party materially breaches any of its obligations under the Contract, the non-breaching Party may provide the breaching Party with a written notice specifying the nature of the breach and stating its intention to terminate the Contract with immediate effect if such breach is not cured within 30 (thirty) days after the receipt of such notice. If such breach is in all reasonableness not capable of being rectified within such 30 (thirty) day period, the non-breaching Party shall be entitled, without prejudice to any of its other rights under the Contract , and in addition to any other remedies available to it by law or in equity, to terminate the Contract forthwith with immediate effect.
b) If a Party is involved in legal proceedings concerning its insolvency, or is adjudicated bankrupt, is subject to reorganization, liquidation or receivership proceedings, or upon an assignment of a substantial portion of the assets for the benefit of creditors, or in the event a receiver or custodian is appointed for its business, or if a substantial portion of its business is subject to attachment or similar process, the other Party may, subject to providing a written notice, terminate the Contract, with immediate effect.
c) In case of termination of the Contract in accordance with this article 9.1., Ardena shall be entitled, in accordance with article 8.1, to payment for: (i) all Deliverables provided up to the effective date of termination; (ii) raw materials and components ordered by Ardena in respect of a Deliverable (iii) any reasonable costs and non-cancellable obligations properly entered into and/or incurred under the Contract to the extent such obligations cannot reasonably be mitigated, and (iv) reasonable costs for any additional reporting requested by Contract Giver and (v) reasonable costs for finalization of documentation required for internal procedure. In addition, in case of termination by Ardena of the Contract in accordance with this article 9.1. a) and b), the Contract Giver shall pay (i) the costs in relation to the time required to cease all activities related to providing the Deliverables (e.g. stopping production operations and cleaning reactors/laboratories) to the extent such obligations cannot reasonably be avoided, and (ii) if termination results in termination of a manufacturing campaign which is already underway, the full costs of the production slot if it is not possible to use the slot for any other purposes, to be determined at Ardena‘s sole discretion.
d) Ardena will provide Contract Giver with (i) an invoice for its fees due by Contract Giver as soon as reasonably practicable following termination of the Agreement, including copies of such invoices and other financial information as is necessary to substantiate Ardena‘s invoice; and (ii) an accounting overview of costs payable by Contract Giver pursuant to this article 9. Ardena will promptly provide Contract Giver with any Deliverables upon termination and in the state in which they are available at the cost of the Contract Giver.
9.2 Expiration or termination of the Contract will not relieve the Parties of any obligation accruing prior to such expiration or termination.
10. Intellectual Property
10.1 Each Party will retain its own Background IP and Foreground IP.
10.2 Ardena shall promptly disclose to Contract Giver all its Foreground IP that is related to or incorporated in the Deliverables.
10.3 Contract Giver grants Ardena a non-exclusive, non-transferable, royalty-free license to use the IP owned by Contract Giver solely for the purposes of performing the Deliverables under the Contract.
10.4 Except as expressly provided herein, Ardena grants no licenses or rights with respect to its Background IP or Foreground IP.
11. Regulatory compliance and inspection
11.1 Contract Giver shall provide Ardena information in its possession and control regarding the known hazards and properties of all substances and materials it provides to Ardena as well as relevant safety information.
11.2 Unless prohibited by Applicable Law or court or agency order, Ardena shall promptly notify Contract Giver of any regulatory inspection relating to the Contract and the Deliverables. Ardena will permit the regulatory authorities to conduct inspections of the Deliverables and will cooperate in good faith with the regulatory authorities in connection therewith. Ardena will keep Contract Giver informed about the results and conclusions of each regulatory inspection, including by providing Contract Giver with copies of any written inspection reports issued by a regulatory authority and all correspondence between Ardena and the regulatory authority related to the Deliverables.
12.1 Contract Giver will defend, indemnify, and hold harmless Ardena from any liability or expense (including reasonable attorney’s fees) arising out of any suit, demand or action by any third party arising out – always in the context of the performance of the Deliverables of or resulting from (i) any (allegation of) and infringement of any IP rights of any third party; or (ii) resulting from the packaging, storage, disposal, handling, possession or use of materials provided by the Contract Giver or any of the Deliverables, or (iii) the gross negligence or willful misconduct of Contract Giver or (iv) any breach by the Contract Giver of the representations, warranties or obligations set forth in the Contract.
12.2 A Party (the “Indemnitee”) which intends to claim indemnification under this article 12 shall promptly notify the other Party (the “Indemnitor”) in writing of any action, claim or other matter in respect of which the Indemnitee intends to claim such indemnification; provided, however, that failure to provide such notice within a reasonable period of time shall not relieve the Indemnitor of any of its obligations hereunder except to the extent the Indemnitor is prejudiced by such failure. The Indemnitee shall permit the Indemnitor, at its discretion, to settle any such action, claim or other matter, and the Indemnitee agrees to the complete control of such defense or settlement by the Indemnitor. Notwithstanding the foregoing, the Indemnitor shall not enter into any settlement that would adversely affect the Indemnitee’s rights hereunder or impose any obligations on the Indemnitee in addition to those set forth herein, in order for it to exercise such rights, without Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. No such action, claim or other matter shall be settled without the prior written consent of the Indemnitor, which shall not be unreasonably withheld or delayed. The Indemnitee shall fully cooperate with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or other matter covered by the indemnification obligations of this article 12. The Indemnitee shall have the right, but not the obligation, to be represented in such defense by counsel of its own selection and at its own expense.
12.3 Except for liabilities arising from a Party‘s gross negligence or willful misconduct, or breach of its confidentiality obligations under article 16, neither Party will be liable to the other Party for any indirect or consequential damages arising from any act or omission in the performance of the Contract including but not limited to loss of profits, loss of revenue and punitive damages and each Party hereby waives any claims against the other Party regarding such damages. The total liability and indemnification obligation of Ardena to Contract Giver under the Contract shall, save for breach or its confidentiality obligations under Article 14 and save for gross negligence or willful misconduct, furthermore be limited to the cumulative amount paid by Contract Giver to Ardena in the 12 (twelve) months preceding such claim.
13. Representations and Warranties
13.1 Each Party represents and warrants to the other that it has full power, authority and legal capacity to execute and to perform its obligation(s) under the Contract, and it has not entered into any agreement and there are no assignments, licenses, encumbrances or rights held by other parties, private or public, inconsistent with the provisions of the Contract.
13.2 Ardena does not provide other warranties, representations or guarantees of any kind whatsoever, either express or implied, regarding the Deliverables and materials to be supplied by the Contract Giver under the Contract, including without limitation any express or implied warranties of merchantability or fitness for a particular purpose or the non-infringement of any third party IP rights.
14.1 Except to the extent expressly authorized by the Contract or otherwise agreed in writing, the Parties agree that, during the term of the Contract and for 5 (five) years after expiry of the Contract, the receiving Party shall keep confidential and shall not publish or otherwise disclose or use for any purpose other than as provided for in the Contract any Confidential Information, except to the extent that it can be established by the receiving Party that such Confidential Information:
a) was available to the public or otherwise part of the public domain at the time of its disclosure to the receiving Party;
b) became available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving Party in breach of the Contract;
c) was disclosed to the receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation to the disclosing Party not to disclose such information to others; or
d) was independently developed by employees of a Party without access to or use such Confidential Information of the other Party, as evidenced by contemporaneous written records.
14.2 Each Party may disclose any Confidential Information that is required to be disclosed by law, government regulation or court order. If any such disclosure is required, the disclosing Party will give the other Party at least 30 (thirty) days advance notice (to the extent practicable and permitted by law) so that that Party may seek a protective order or take other action reasonable in light of the circumstances. In any event, the disclosing Party shall only disclose the minimum Confidential Information necessary to comply with such requirements.
15. No agency or joint venture.
Nothing in the Contract shall be deemed to create an agency relationship or joint venture between the Parties. Each Party shall be responsible for all salaries, taxes, benefits, withholding, worker’s compensation, unemployment insurance and similar requirements of their own employees and neither Party‘s employees shall be deemed agents or employees of the other Party.
16. Choice of law and jurisdiction
These General Terms and Conditions Contract shall be governed by and construed in accordance with the laws Belgium or of the country in which the Ardena Affiliate with whom the Contract Giver has signed the Contract is established as the case may be . Each of the parties consents to the exclusive jurisdiction of the competent courts of Ghent or of the jurisdiction in which the Ardena Affiliate with whom the Contract Giver Giver has signed the Contract is established as the case be, in connection with any action or proceeding arising out of the Contract.
The Contract may not be assigned or otherwise transferred by a Party without the prior written consent of the other Party; provided, however, that either Party may, without such consent, but with notice to the other Party, assign the Contract , in whole or in part, (i) in connection with the transfer or sale of all or substantially all of its assets or the line of business to which the Contract relates; or (ii) to an Affiliate; or (iii) to a successor entity or acquirer in the event of a merger, consolidation or change of control. Any purported assignment in violation of the preceding sentence will be void. Any permitted assignee will assume the rights and obligations of its assignor under the Contract.
18. Amendments and Waiver
18.1 The Contract constitutes the full agreement between the Parties regarding the Deliverables delivered hereunder and may not be modified without both Parties’ prior written consent.
18.2 If any provision of the Contract is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of the Contract shall remain in full force and effect. Any provision of the Contract held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
18.3 No provision of the Contract shall be deemed to have been waived by any act of or acquiescence on the part of any Party hereto. A waiver may only occur in writing signed by the authorized representatives of each Party hereto, waiving the particular provision involved. No waiver of any provision of the Contract shall constitute waiver of any other provision or of the same provision on any other occasion.
19. No benefit to third parties.
The representations, warranties, covenants and agreements set forth in the Contract are for the sole benefit of the Parties hereto and their successors and permitted assigns, and they will not be construed as conferring any rights on any other persons.