General Terms and Conditions
Last modified: March 1st, 2017
1.1 The following General Terms & Conditions (hereinafter "GTC") shall apply exclusively to the ordering, purchase and supply of all GFS Management BV (hereinafter “GFS Management”) products and services and shall constitute the entire agreement between GFS Management and the party requesting such products and services (hereinafter "Customer"), unless expressly agreed otherwise in writing by both parties.
1.2 GFS Management’s GTCs shall apply to each individual order in its respective current version which is in force and effective at the moment of the respective offer by GFS Management.
1.3 Alternate or additional conditions of the Customer shall only become part of the agreement between GFS Management and the Customer, if GFS Management has explicitly agreed to them and accepted them in writing. This shall also apply to any waiver of this written form requirement. GFS Management’s failure to object or respond to any additional terms and conditions shall not be regarded as approval. GFS Management explicitly rejects any conflicting conditions not agreed to and accepted in writing.
2. Offer and Acceptance
2.1 After submission of a completed request form by the Customer, GFS Management will issue a written quotation by regular mail, facsimile or e-mail (“Offer”). Each Offer shall include the requested products or, in case of a customized service the project specification, and the price quoted. Each Offer will specify the scope of deliverables, services and project success criteria to be provided by GFS Management under a respective project. GFS Management reserves the right to refuse any request submitted and not to issue an Offer for the same. GFS Management's Offer – including in particular the price quotes - is valid for 30 calendar days as of the date of the offer by GFS Management.
2.2 The contract is concluded by sending a regular purchase order for GFS Management products and services or, if the Customer accepts an Offer (see 2.1) in writing, by regular mail, facsimile or e-mail (hereinafter "Agreement"). This acceptance constitutes the purchase order (hereinafter "Purchase Order"). Upon receipt of the Purchase Order, GFS Management will issue a written order confirmation and send it to its Customer by facsimile, e-mail or regular mail.
3. Subsequent Changes/Revisions/Cancellations
All subsequent agreements, amendments, changes and ancillary agreements are subject to GFS Management’s approval, must be made in writing and may be subject to a price change. Cancellations are subject to a cancellation fee.
GFS Management shall be entitled to involve subcontractors for the performance of the services and supply of products.
5.1 Delivery dates and deadlines for deliveries and completion of services and supply of products are a best case estimate of a specific delivery date. Delivery dates and deadlines shall not commence, unless GFS Management has received all information and material necessary for rendering its services and the supply of the products under a respective Purchase Order.
5.2 GFS Management reserves the right to make partial shipments of products and services in fulfilling a Purchase Order. Each partial shipment shall be considered a separate transaction that may be invoiced separately.
The products shall be delivered by GFS Management on the basis of cost insurance freight (“CIF”) or in case of shipping with a Customer’s account, ex works (EXW) (Incoterms 2000) to the delivery address provided by the Customer. The Customer shall bear the costs and the risk of delivery.
7. Payment Terms
7.1 The total amount due will be invoiced upon shipment of the product unless otherwise agreed in writing. Invoices must be paid in full within 30 days of the date of the invoice by the Customer unless otherwise agreed upon in writing. Forwarding charges and taxes (including VAT at the rate in effect at the time of delivery (if applicable)) will be itemized separately on each invoice and charged separately to the Customer. Payment to GFS Management must be made by wire transfer or another method agreed upon with GFS Management. All payments shall be made in Euro (€) or optional in U.S. Dollars ($).
7.2 GFS Management has no knowledge or control over customs duties, including taxes, tariffs and import fees that may be imposed by local authorities of an import country. The Customer shall be fully and solely responsible for clearing products for import and for payment of any applicable local taxes or import duties. The Customer shall obtain at their own risk and expense any import license or other official authorization and carry out all customs formalities for the importation of the products and, where necessary, for their transit through another country.
7.3 GFS Management reserves the right to require from the Customer full or partial payment (at least 50%) in advance, or other security that is satisfactory to GFS Management, at any time that GFS Management believes in good faith that Customer's financial condition does not justify the terms of payment specified.
7.4 In case of late payment GFS Management shall – without prejudice to any other right or remedy available to GFS Management – charge the Customer interest on the amount unpaid at the rate of 8% per annum above the base lending rate applicable at the respective time, until payment has been made in full. GFS Management reserves the right to assert claims for a higher rate of interest and further losses. Additionally, the Customer agrees to reimburse GFS Management for any collection charges should they be required.
7.5 Withholding of payments and offsetting with counterclaims which are disputed or not res judicata are expressly excluded. In as far as there is a contractual relationship between merchants, a right of retention may not be asserted under any circumstances, even if there is a complaint regarding the subject of delivery.
8. Customer's obligations
8.1 GFS Management’s compliance with its contractual obligations requires that the Customer ensures the availability of all information and materials (if applicable) required by GFS Management. Information and materials must be supplied by the Customer in due time and in an orderly manner. Customers that provide GFS Management with information and/or materials for the processing of the order bear the costs and the risk of delivery to GFS Management.
8.2 The Customer is obligated to provide GFS Management with all handling information and notify GFS Management of any known dangers of any materials supplied. If the Customer does not, or incorrectly or incompletely informs GFS Management in writing about the respective handling and any and all dangers involved with the information and/or material, the Customer will be liable for any damage, injuries and illnesses suffered by GFS Management or any of its representatives, employees, agents, subcontractors or vicarious agents. GFS Management reserves the right to refuse any Customer supplied material if it deems such material inappropriate or unsafe for its processes.
9. Intellectual Property
All rights, title and interest to know-how and intellectual property rights owned or controlled by GFS Management during the contractual relationship with a respective Customer shall remain with GFS Management.
10. Permitted Use
10.1 The Customer is permitted to use the services performed and the products delivered by GFS Management for his own research purposes. Customers who utilize GFS Management's products outside research purposes, do so at their own risk. GFS Management can not anticipate or control the possible procedures and processes of its products, and rejects any and every warranty or liability for use of its product outside research purposes.
10.2 The Customer is not permitted to use the services performed and the products delivered by GFS Management beyond what is defined in Section 10.1 above. In particular the Customer must not:
- a) reproduce the services performed by GFS Management;
- b) reproduce parts of it; or
- c) integrate the services performed and the products delivered by GFS Management into Customer's own technology platform, especially by using the services performed and the products delivered by GFS Management for third parties (e.g. offering research services to third parties) or by enabling third parties to use the services performed and the products delivered by GFS Management.
10.3 The use of the services performed and the products delivered by GFS Management for purposes other than as specified in Sections 10.1 and 10.2 above requires a separate agreement with GFS Management.
10.4 In case of a violation by the Customer of this Section 10, GFS Management assumes no responsibility or liability for the services performed and the products delivered.
11. Interdiction to pass on the results
11.1 The Customer is not permitted to resell or otherwise pass on the services performed and the products delivered by GFS Management to third parties.
11.2 The resale or passing on of the services performed and the products delivered by GFS Management requires a separate agreement with GFS Management.
11.3 In case of violation by the Customer of this Section 11 GFS Management assumes no responsibility or liability for the services performed and the products delivered.
12.1 GFS Management shall not be liable in the case that supplied goods are not suitable and useful for the purpose desired by the Customer.
GFS Management’s obligation is limited to meeting or exceeding the project success criteria as defined in the project specifications documentation provided by GFS Management with the offer.
12.2 The Customer cannot claim compensation or assert other warranty claims for defects, unless the Customer examines the products without undue delay according to the Netherlands law upon their delivery and informs GFS Management without undue delay in writing of any complaints regarding apparent defects upon their discovery. If the Customer fails to notify GFS Management the products shall be deemed to have been accepted without reserve. With regard to latent defects, which were not detected by the Customer at the moment of the examination of the products in spite of careful investigation, the rights are excluded if the Customer fails to notify GFS Management of these defects in writing immediately upon their discovery.
12.3 If GFS Management has been notified of a defect in a timely and proper manner, GFS Management may, at its own discretion, choose to improve and / or replace such defective products within a reasonable period of time free of charge.
12.4 The liability of GFS Management is excluded if the Customer adulterates, alters or modifies the products in any way or if the products are used, handled, maintained or stored improperly or in any manner not strictly in accordance with industry practice or GFS Management’s recommendations and procedures.
13.1 GFS Management shall be fully liable in the event of intentional misconduct or gross negligence by GFS Management itself or its vicarious agents.
13.2 In the case of a culpable violation of essential contractual obligations, meaning principal obligations enabling the proper execution of the contract and upon which the Customer therefore relies and may rely, GFS Management shall be liable on the merits. The liability shall in this case, however, be limited to the cumulative amount invoiced by GFS Management to the Customer in the last 12 months.
13.3 In all other cases, any claims for direct or indirect damages (on any legal basis whatsoever, including any compensation claims based on breach of any pre-contractual duty, or tortious claims) shall be excluded.
14. Customer's Guarantees and Indemnification
14.1 The Customer guarantees that GFS Management has freedom to operate to use any material and/or information provided or specified by the Customer and that such material and/or information does not infringe any third party’s rights.
14.2 The Customer shall indemnify and hold harmless GFS Management from and against all claims, suits, losses, damages and expenses (including but without limitation, court costs and attorney's fees) arising out of the use of the material and/or information by GFS Management according to this Agreement.
14.3 The Customer guarantees compliance with all relevant laws and regulations in connection with the Purchase Order and the Agreement, in particular in connection with the information and materials provided to GFS Management. The Customer guarantees that GFS Management has been notified of all relevant laws and regulations in connection with the order fulfillment.
14.4 Regulations concerning the export and import of the goods into the Customer’s specific geographic location are solely the responsibility of the Customer.
15.1 The Customer guarantees that any information delivered by GFS Management or arising under a Purchase Order regarding the services performed and the products delivered by GFS Management, and/or GFS Management’s intellectual property and know-how regarding the production of proteins, including, but not limited to the project specifications, data or reports delivered by GFS Management (hereinafter collectively "GFS Management Confidential Information"), shall;
- (a) be maintained in confidence by the Customer;
- (b) not be used for any purpose not directly related to the Agreement; and
- (c) not be disclosed or otherwise made available to any third party without GFS Management’s prior written consent.
15.2 GFS Management guarantees that any materials delivered by the Customer and any information disclosed by the Customer in connection with a Purchase Order relating to such materials or the projects intended by the Customer (hereinafter collectively "Customer Confidential Information") the GFS Management Confidential Information and the Customer Confidential Information collectively the "Confidential Information") shall;
- (a) be maintained in confidence by GFS Management;
- (b) not be used for any purpose not directly related to the Agreement; and
- (c) shall not be disclosed or otherwise made available to any third party, except the sub-contractors of GFS Management without Customer's prior written consent.
15.3 The confidentiality and non use obligations of this Agreement shall not apply to information which the receiving party can demonstrate by competent evidence:
- a) is in the public domain at the time of disclosure; or
- b) after its disclosure, becomes part of the public domain by publication or otherwise, except in breach of this Agreement; or
- c) was in its possession at the time of disclosure or was subsequently and independently developed by employees or staff of the receiving party who had no knowledge of the information disclosed; or
- d) is received from a third party, provided however, that such information was not obtained by the said third party, directly or indirectly, from the disclosing party under conditions of confidentiality.
15.4 Notwithstanding this Section 16, the receiving party may disclose Confidential Information, without violating its obligations under this Section, to the extent the disclosure is required by applicable law or by a valid order of a court or other governmental body having jurisdiction, provided that the receiving party gives reasonable prior written notice to the disclosing party of such required disclosure and, at the disclosing party's request and expense, cooperates with the disclosing party's efforts to obtain a protective order preventing or limiting the disclosure, requiring that the Confidential Information so disclosed be used only for the purposes for which the law or order requires, and/or to obtain other confidential treatment of the Confidential Information so disclosed.
15.4 The obligation of confidentiality under this Section shall survive the termination or expiration of this Agreement.
16.1 The Customer shall not assign or otherwise transfer the Agreement or the rights and duties under the Agreement in any manner whatsoever without the prior written consent of GFS Management.
16.2 Unless stated otherwise herein, all notices required or permitted under this Agreement shall be in writing and delivered by any method providing proof of delivery or receipt. Any notice shall be deemed to have been given on the date of receipt.
16.3 Amendments and additions to this Agreement must be made in writing to be effective. This shall also apply to a waiver of this written form requirement.
16.4 If individual provisions of this Agreement should be or become invalid or should there be a lacuna that should be filled, the rest of the Agreement shall continue to be valid. In this event, the parties promptly undertake to agree on a valid provision that most closely reflects the parties' economic intention to replace the invalid provision or lack of provision.
16.5 This Agreement shall be governed solely by the law of the Netherlands, excluding the applicability of its conflicts of laws provisions as well as the applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
16.6 The exclusive place of jurisdiction for all disputes arising from or in connection with this Agreement shall be Amsterdam, the Netherlands. GFS Management shall, however, be entitled to also bring an action at the registered seat of the Customer.
16.7 Nothing contained in this Agreement shall be construed to constitute the Customer, on the one hand, or GFS Management, on the other hand, as a partner or agent of the other Party or to create any other form of legal association that would impose liability upon the Customer, on the one hand, or GFS Management on the other hand, for the act or omission of the other Party or provide the Customer, on the one hand, or GFS Management, on the other hand, with the right, power, or authority to create or impose any duty or obligation on the other Party. Each Party shall remain independent and shall act on its own name and for its own account.
Contact Information :
GFS Management B.V.
1018 AH Amsterdam
Phone: +31 (0) 614662496