These General Terms and Conditions have been established by Poultry Research and Innovation Centre, from here on to be called PRIC.
Article 1; Definitions
Background knowledge: all technical information, including data, materials, instruments, software, algorithms, knowledge, models, methods, working methods and techniques (including any intellectual property rights thereto) to which the client or PRIC was entitled before the start of the agreement, as well as all such information subsequently generated by the client or PRIC outside the purpose of the work.
Dutch code of conduct for scientific integrity: the principles of this code are leading in (research) assignments. Article 12.b under chapter 3.2 of the code is not applied by PRIC and therefore also article 10.b under chapter 5.4 of the code. These read: chapter 3.2 article 12.b In very exceptional cases there can be compelling reasons not to make parts of the scientific research, including the data, available for a possible investigation into a presumed violation of the scientific integrity. These cases must be recorded and need the agreement of the management of the institution prior to the use of the research results and/or the research data within the scientific research as well as disclosure in the possible publication of the research results. And article 10.b. For very exceptional cases, it can be included in this regulation that,in accordance with chapter 3.2 article 12.b, there can be compelling reasons not to make parts of the research, including the data, available for a confidential investigation into a presumed violation of the scientific integrity. These cases must be recorded and need the agreement of the management of the institution prior to the use of the research results and/or the research data within the scientific research as well as disclosure in the possible publication of the research results.
Quotation: the offer by PRIC to the client to perform work for a certain price. The quotation is enclosed in the protocol.
Protocol: description of the work to be carried out by PRIC, including any changes agreed upon later.
Report: a written or electronic document in which a description is given of the performed work and the results.
Results: the from the work resulting data, materials, instruments, software, algorithms, knowledge, models, methods and techniques, excluding background knowledge.
Confidential Information: any background knowledge, quotation, protocol, business information (including legal, financial, commercial information) and personal data which the receiving party has received as part of the agreement from the providing party and (1) which the providing party has designated as confidential, or (2) which the receiving party may reasonably know, or ought to know, to be confidential.
Work: work to be performed by or on behalf of PRIC and/or work of a material nature to be realised, on the basis of a protocol agreed upon between the client and PRIC.
Article 2; Realization and content of the agreement
The agreement between the client and PRIC is realised by acceptance of the quotation by the client, in writing or electronically, within the term mentioned in the quotation. The agreement commences on the effective date mentioned in the quotation or in the absence thereof, on the date on which the acceptance is received by PRIC. In case PRIC, with the consent of the client, has started performing the work, the content of the quotation shall be considered as agreed upon and the starting date of the work shall be considered as the starting date of the quotation.
The execution of searches for the existence of patent rights of third parties or for the possibility of patenting, is not part of the agreement. If the execution of searches as referred to above has been explicitly agreed upon in writing, PRIC accepts no liability whatsoever for the content and results thereof.
Article 3; Execution of the agreement
PRIC strives in the execution of the agreement to achieve a useful result for the client (obligation to perform to the best of one’s abilities). The realization of the protocol and the execution of the work will take place within the framework of the Dutch Code of Conduct for Scientific Integrity, in which general principles of good and honourable scientific practice are described. Results and conclusions may not be influenced by the interests and wishes of clients.
All deadlines stated in the quotation and protocol are estimates. PRIC is not in default by the mere expiry of the term. If PRIC anticipates that a term threatens to be substantially exceeded, PRIC shall report this to the client and discuss it with the client.
PRIC is not obliged to start or continue the work before all information, data, materials, equipment or other goods to be made available to PRIC by the client have actually been made available to PRIC in the agreed form, numbers and/or quality. Delay in making the aforementioned items available gives PRIC the right to determine a revised planning, as well as to charge the costs incurred as a result of waiting times to the client.
PRIC is entitled to replace employees who perform the work by other employees.
PRIC has the right to have (parts of) the agreement performed by third parties under her responsibility.
The client and PRIC shall inform each other of any details at or during the execution of the agreement, of which it can reasonably be expected that they are of importance to the other party.
If the work relates to materials made available by the client, the client is responsible for the selection, representativeness, designation of codes and brand or product names, identification, date of sampling and other relevant information of the materials to be examined.
PRIC shall keep materials (or the remnants thereof) that have been made available to PRIC in connection with the execution of the agreement, if reasonably possible, for a period of two weeks after the date on which the results have been reported or delivered to the client. If the client has not taken care of the collection or had the materials returned within this period, PRIC is free to take appropriate measures at the client’s expense.
Article 4; Reporting
PRIC reports to the client on the progress of the work in accordance with the protocol. If not otherwise agreed, reports shall be made in writing or electronically.
Results and reports shall be deemed to be accepted by the client if PRIC has not received written objections within 4 weeks after sending them.
The client becomes (intellectual) owner of the report. PRIC retains an unrestricted right of use on (the research results and outcomes of) the report.
Article 5; Price and payment / Financial
All amounts mentioned by PRIC in the quotation and/or protocol are in Euro and excluding VAT.
Unless otherwise agreed in the quotation, the amount mentioned in the quotation is a fixed price. PRIC has the right to index the costs of the not yet executed part of the work each time as per January 1st in accordance with the annual adjustment of the rates applicable at PRIC.
Costs of additional work can only be charged on to the client if the client has agreed to this in writing or electronically in advance.
The price will be invoiced by PRIC in accordance with the schedule included in the quotation. If no schedule has been determined, PRIC can demand advance payment and/or send interim invoices. Invoices shall be paid by the client within 30 days after the invoice date.
If an invoice is not paid in accordance with article 5.3 within thirty 30 days after the invoice date, PRIC may increase the invoice amount with a contractual default interest of one percent (1%) per month or part of a month. PRIC can also charge all judicial and extrajudicial costs of collection to the client.
Granting or transfer of (intellectual property) rights takes place under the suspending condition that the client has fully paid all amounts due to PRIC in connection with the agreement.
Article 6; Confidential information
The receiving party is obliged to keep the confidential information confidential, to keep it secret and to use it for no other purpose than the execution of the agreement. Within the framework of the execution of the agreement PRIC is entitled to provide information, under the same conditions as meant in this article, to third parties (as meant in article 3.4) only as far as this is necessary for a correct execution of the activities by third parties. PRIC guarantees the confidentiality of this third party as these third parties will have to sign a confidentiality agreement.
The obligations set out in 6.1 shall not apply to confidential information of which the receiving party can prove that:
– it was generally known at the time it was provided, or became generally known after it was provided, through no fault of the receiving party;
– the receiving party was in possession of it at the time it was communicated to it;
– it was obtained from a third party without any obligation of confidentiality and the receiving party could assume to the best of its knowledge that it did not originate from the supplying party;
– it was obtained from its own research, without any use being made of the confidential information received.
The obligations arising from Article 6.1 shall not apply if and in so far as they conflict with statutory duties and obligations of PRIC or if PRIC in that context anticipates serious danger to persons, property, the environment or public health. In these cases PRIC shall – if possible – consult with the client before disclosing the confidential information.
The receiving party may disclose the confidential information if and in so far as it is required to do so by law or an order of a judicial institute, administrative body or government agency. Where such a case arises, the receiving party shall promptly inform the providing party so that the providing party is given the opportunity to intervene and possibly prevent disclosure.
Results are confidential information of PRIC and should therefore be treated by the client in accordance with this article 6.
The obligations with regard to confidential information apply until five (5) years after the end of the agreement.
Article 7; Background knowledge and results
PRIC and the client each remain entitled to their background knowledge. The parties do not grant each other any rights of use of the background knowledge, except for the execution of the work.
PRIC is entitled to any improvements or adaptations to background knowledge of PRIC, unless such improvement or adaptation is the explicit purpose of the work.
PRIC is not entitled to the results and is not entitled to (the establishment of) intellectual property rights on them. Client can assist PRIC in submitting an application for an intellectual property right.
Within the scope of the activities as described in the protocol, the client receives a non-transferable, non-sublicensable, non-exclusive right to use the results, as well as the right to reproduce reports and other documents in their entirety and for internal and external use under the name of PRIC.
PRIC reserves at all times the right to use the results for internal research purposes and internal education.
Article 8; Publication
PRIC has the right to publish the results with due observance of the stipulations in article 6. During the duration of the work, PRIC will communicate an intention to publish the results to the client in writing.
If PRIC has not received a written response from the client thirty (30) days after notification of the intended publication, the client shall be deemed to have agreed to the intended publication.
A substantiated written request by the client for deferment of publication shall be granted if the intended publication of the results also contains confidential information of the client. In that case PRIC will remove the confidential information from the intended publication. Thereafter, publication is permitted.
Without prior written consent of PRIC, the client is allowed to publish all or part of a report or result released by PRIC. Publication is also understood to mean giving reports or results to third parties for inspection, use for legal proceedings, advertising and recruitment in a more general sense.
Parties are not entitled to use each other’s name and logos in any connection whatsoever, with the exception of the right of PRIC to mention the name of the client as financier of the research when publishing the results, provided that the client agrees to this in writing.
Article 9; Liability
The total liability of PRIC resulting from or related to the agreement, is limited to a maximum of the amounts paid to PRIC by the client within the framework of the work.
PRIC is not liable for damage that the client suffers as a consequence of the use of results by the client, as a result of negative publicity, nor for loss of turnover, loss of profit, damage to reputation or loss of data and/or materials.
The foregoing limitations of liability do not apply if and in so far as the liability is the result of intent or deliberate recklessness on the part of PRIC.
PRIC accepts no liability for damage which is the result of defects of goods delivered to PRIC, including the day-old chicks, the feed, other goods delivered and software, which are passed on by PRIC to the client, unless and as far as PRIC can recover this damage from her supplier.
Any claim against employees and persons engaged by PRIC is excluded. Employees and persons engaged by PRIC can at all times invoke this third party clause stipulated for their benefit.
The client shall indemnify PRIC against claims of third parties that are in any way connected with the work done by PRIC for the client or arise from the use of results. The client shall indemnify PRIC against claims of third parties arising from the use of goods or data that the client has made available to PRIC within the framework of the execution of the agreement.
Article 10; Force majeure
If PRIC or the client is unable to fulfill its obligations under the agreement due to force majeure, the party concerned can suspend its obligations during the existence of this situation, provided that the other party is explicitly informed in writing immediately after the force majeure situation has arisen. Force majeure shall be deemed to be situations which prevent the execution of the agreement and which are not due to the fault of the party acting in a situation of force majeure, nor by virtue of law, legal act or generally accepted practice can be ascribed to her. Force majeure includes, but is not limited to, the absence of personnel due to illness and loss of animals used in the execution of the agreement.
Article 11; Termination
If a party fails to perform an obligation arising from the agreement and performance has not become permanently impossible, the other party will give the failing party a reasonable period of time to remedy the failure by means of a written notification to the failing party. If the failing party is in default, the other party shall be entitled – without prejudice to the right to compensation – to dissolve the agreement with immediate effect by means of a registered letter, unless the failure, in view of its special nature or minor importance, does not justify this dissolution with its consequences. If the agreement is legally dissolved, all claims of the dissolving party on the defaulting party shall be immediately due and payable.
Parties shall only be entitled to terminate the agreement with immediate effect by means of a registered letter in the following cases:
a. if the other party is declared bankrupt or is granted suspension of payment or a request is submitted for this;
b. if the other party’s business is being liquidated or shut down;
c. in the event of force majeure – as stipulated in article 10 – and the situation of force majeure has lasted for more than ninety (90) days.
In the event of (interim) termination or dissolution, the parties shall remain bound by Articles 1, 6, 7, 8, 9 and 11.3 of these General Terms and Conditions, all this – if applicable – during the period stipulated in the relevant article.
The client is entitled to cancel or suspend the trial until at least four weeks before the planned commencement date. If the client cancels the trial within four weeks before the trial commences, the costs incurred will be passed on to the client.
Article 12; Miscellaneous
All claims of the client for compensation pursuant to article 9 shall lapse twelve (12) months after the work to which these claims relate has been performed.
Amendments to these general terms and conditions and the protocol (including additional work) will only be legally valid if they have been agreed in writing or electronically between the parties.
If it appears that a party cannot legally invoke one or more provisions of these general terms and conditions, the agreement and the conditions applicable to it will remain unchanged for the rest. If the case described above occurs, a stipulation will take the place of the aforementioned provision, which comes as close as possible to this in terms of content, scope and effect.
The client is not entitled to transfer the rights and obligations from this agreement to a third party without prior written permission of PRIC, which permission will not be withheld on unreasonable grounds. PRIC is entitled to transfer the agreement to any legal successor(s). Transfer does not affect the confidentiality obligations agreed upon between parties.
In case of contradictions between different documents the following order of priority shall apply: 1) quotation, 2) general terms and conditions, 3) protocol.
When the results of the trial are not usable according to the client, but PRIC has executed the work according to protocol, PRIC is not liable for the unusable results.
Article 13; Disputes and applicable law
The agreement and legal relations between PRIC and the client are governed by Dutch law.