General Terms & Conditions



GENERAL SUPPLIER TERMS AND CONDITIONS

of SkylineDx B.V. (“Skyline”), Rotterdam, the Netherlands

1. Definitions

In these General Conditions the following definitions are being used, singular as well as plural. ”General Conditions”: these general supplier terms and conditions, irrespective of the form in which these general terms and conditions are presented to the Contracting Party. “Skyline”: the private company with limited liability SkylineDx B.V., having its registered offices at Marconistraat 16, 3029 AK Rotterdam, the Netherlands. “Contracting Party”: the party, either acting in the course of a business or profession or as a private person, to whom the offer of Skyline is submitted, or with whom Skyline has entered into an agreement or to whom the Products or Services are or will be delivered or are or will be executed. “Products”: all movable assets (including diagnostic kits) which are subject to any offer, proposal, agreement or any other contract between Skyline and the Contracting Party. “Services”: all activities (including diagnostic services) which are subject to any offer, proposal, agreement or any other contract between Skyline and the Contracting Party. “Service deliverables”: a report describing the test results generated by Skyline pursuant to Services.

2. Applicability

The General Conditions shall cover and form part of all offers, proposals, agreements and other acts, either made orally, in writing, electronic or in any other form, concerning the delivery by Skyline of Products and/or Services to or on behalf of the Contracting Party. The General Conditions also apply to Products and/or Services partly or wholly obtained by Skyline from a third party and which are, either processed or not, delivered to the Contracting Party, as well as to Products and/or Services required for the execution of the offer, proposal, agreement or any other legal act delivered to the Contracting Party on Skyline’s instruction. Deviations from the General Conditions shall only apply if and to the extent that they have been explicitly agreed upon in writing between Skyline and the Contracting Party. Skyline explicitly rejects any applicability of any general (purchase) conditions used by the Contracting Party. If and to the extent that any provision contained in these General Conditions should prove not valid for whatever reason, the other provisions of these General Conditions shall remain in full force and effect.

3. Offer and agreement

All offers by Skyline shall be non-binding unless explicitly otherwise stated in writing. All offers are valid for the period as mentioned in the offer concerned. If no period is mentioned, the offer will be valid for fourteen (14) days after the day on which the offer was submitted. All instructions are accepted and carried out exclusively by Skyline, with the exclusion of Article 7:404 and 7:407 (2) Dutch Civil Code. Third parties cannot derive any rights from the work carried out and from the ensuing results. An agreement shall have been concluded as soon as Skyline accepts the Contracting Party’s order by e-mail or written confirmation or on the moment Skyline starts executing the Contracting Party’s order.

4. Prices, fees and variations

All prices and fees mentioned by Skyline are in Euros, unless explicitly otherwise stated. All prices and fees are excluding value-added tax (VAT), any use tax, sales tax, excise tax, duty, inspection or testing fee and any other taxes or government levies, as well as costs for transport and delivery, unless explicitly otherwise stated. Skyline is at any time authorized to adjust its prices and fees. Unless agreed upon in writing that prices and fees are valid for a fixed period, all announced adjustments will enter into force 1 (one) month after the announcement thereof. If the Contracting Party does not agree to any announced adjustment in Skyline’s prices and fees, the Contracting Party may terminate the agreement with Skyline in writing within 14 (fourteen) days after such announcement. The termination will have effect from the date the adjustment of the prices and fees enters into force. If in consultation with the Contracting Party deviations from the original agreement will be made, the costs deriving from such variations will be invoiced to the Contracting Party against the prices and fees that apply at such moment.

5. Payment

The Contracting Party will pay Skyline’s invoices within the term specified on the invoice concerned. If no term has been specified, the invoice must be paid within 30 (thirty) days after the date of invoice. All payments by the Contracting Party to Skyline shall first be applied against the oldest of any outstanding invoices, irrespective of any other indication by the Contracting Party. The Contracting Party shall not be entitled to any postponement, set-off or reduction outside the scope of its rights in this respect under mandatory law. Skyline is entitled at all times to require payment in advance by the Contracting Party, for example by way of a direct debit mandate issued in favor of Skyline and to postpone delivery until such payment in advance has been received. Furthermore Skyline is entitled to require security from the Contracting Party for the fulfillment of its payment obligation in any form, to be indicated by Skyline, such as a bank guarantee. In such event, the Products and/or Services will only be delivered after such security has been obtained. If the Contracting Party fails to pay an invoice within the term of payment, the Contracting Party is in default without a warning or notice of default being required. From the time at which the Contracting Party shall be in default until the day of payment in full, interest shall accrue on the outstanding amount at the statutory rate. If the Contracting Party continues to be in default in his obligation to pay the outstanding invoice with accrued interest, Skyline can place the matter in the hands of a lawyer or a debt-collector agency. All collection costs incurred by Skyline in respect of such collection, both in court (judicial costs, including all attorney’s fees and court costs) as well as out of court (extra judicial costs) shall be for the Contracting Party’s sole account. The amount of the collection costs shall be determined at least 35% (thirty-five percent) of the principal sum.

6. Delivery

Products will be delivered ex works (Incoterms 2000) Skyline or ex works Affymetrix depending on the volume of the order. Service deliverables will be provided to Contracting Party by regular mail and by electronic mail. Title and risk of loss or damage pass to Contracting Party upon shipment of the Products at the premises of Skyline (or Affymetrix, whatever is the case). All terms of delivery, including but not limited to delivery times, of Products and/or Service deliverables only serve as estimates and are therefore never fatal, unless explicitly stated otherwise.

7. Performance, risk and retention of title

Immediately upon receipt of the Products or the Service deliverables by the Contracting Party, the Contracting Party will inspect all Products or Service deliverables, whatever is the case, for possible defects or other shortcomings. All items and Service deliverables delivered to the Contracting Party will remain Skyline’s property, until the Contracting Party has fully paid all amounts due for any Products and/or Services delivered by Skyline, with accrued interest and costs, as meant in article 5. Insofar it has been explicitly agreed upon in writing that any rights will be granted or transferred, such rights will at all times be granted or transferred under the condition that the payments concerned will be timely and fully made. Skyline shall perform the Services professionally and to the best of its abilities. However, the Contract Party acknowledges that Skyline cannot guarantee that the Services will always be performed to a result or a correct result.

8. Samples

Samples shall be shipped to Skyline at the Contracting Party’s responsibility. Skyline shall be entitled to reject samples for diagnostic services if, in Skyline´s sole discretion, the samples are not appropriate and/or the quality of these samples is not sufficient. The samples that may be rejected by Skyline include but are not limited to samples that (i) are not bone marrow, (ii) samples with a delivery time longer than 24 hours for the MMprofiler and longer than 48 hours for the AMLprofiler after aspiration of the Bone Marrow sample (iii) samples that have been shipped or stored under inappropriate environmental conditions (iv) samples yielding less than 10x 106 (ten million) mononuclear cells in case of AML (v) samples yielding less than 1 µg (one micro gram) RNA for AML (vi) samples yielding less than 1x 106 (one million) plasma cells for MM (vii) samples yielding less than 500 ng (five-hundred nano gram) RNA for MM (viii) samples smaller than 5 ml (five milliliter) for both AML and MM and (ix) samples from which the RNA quality is insufficient (x) the plasma cell % in the bone marrow sample is less than 5%. In case the root cause of the failure occurred under the responsibility of SkylineDx (during sample processing), the analysis will not be charged and the samples will be returned to the Contracting Party free of charge. In case the root cause of the failure occurred under the responsibility of the Contracting Party (the costs incurred by Skyline (e.g. analysis of the sample and shipment costs) will be charged to the Contracting Party.

9. Complaints

All of Contracting Party’s objections against any of Skyline’s invoices or a directly debited amount must be notified in writing to Skyline within 14 (fourteen) days after the date of invoice or the date of direct debit, after which term the amount concerned is considered to be acknowledged. If the Contracting Party is of the opinion that any Product or Service delivered by Skyline does not meet with the agreed conditions, the Contracting Party must notify Skyline thereof in writing within 14 (fourteen) days of delivery, or 14 (fourteen) days from the day the Contracting Party could reasonably be aware of the alleged shortcoming. Contracting Party shall inspect Products upon delivery. Any claims for damaged, missing or defective Products must be reported in writing to Skyline within 14 (fourteen) business days from the date of receipt of the Products otherwise the Products will be deemed to have been received in good condition and accepted by the Contracting Party. Contracting Party must promptly return a rejected Product to Skyline, unused and in a condition no worse than that delivered to Contracting Party and in the Product’s original containers and packing material. Skyline may refuse any Product not timely rejected in writing. For any valid claim made, Skyline shall, at its option, repair the Product or replace the Product with an identical or substantially similar Product. The foregoing shall be Contracting Party’s sole and exclusive remedy for damaged, defective or missing Products.

Contracting Party shall inspect reported results from diagnostic services upon delivery. Any claims for incorrect or missing reported results must be reported in writing to Skyline within 14 (fourteen) business days from the (expected) date of receipt of the reported results otherwise the reported results will be deemed to have been received in good condition and accepted by the Contracting Party. For any valid claim made, Skyline shall, at its option, and to the extent sufficient sample material is (made) available, reanalyze the sample and generate new reported results. The foregoing shall be Contracting Party’s sole and exclusive remedy for incorrect or missing reported results.

10. Intellectual Property and Trade secrets

All intellectual property rights regarding the Products and/or Services as well as all designs, software, documentation and all other materials developed and/or used for the preparation or execution of the agreement between Skyline and the Contracting Party, or deriving there from, are the exclusive ownership/property of Skyline or its suppliers and/or licensors. The delivery of any Products and/or Services does not imply any transfer or license of intellectual property rights. The Contracting Party will not disclose, copy or make available to third parties any Product or result of a Service, without Skyline’s prior written consent. The Contracting Party is prohibited from removing or changing any copyright or other notices of Skyline or its suppliers.

11. Obligations of the Contracting Party

The Contracting Party will at all-time timely and completely provide Skyline with all data and other information required by Skyline and necessary for the delivery of the Products and/or Services. The Contracting Party warrants that the information as meant in this article 11 is correct and complete, and that it is entitled to provide Skyline with such information for the delivery of the Products and/or Services. The Contracting Party indemnifies Skyline against all third parties’ claims in this respect. If any of the data provided by the Contracting Party must be considered to be personal data, including, but not limited to, protected health data, the Contracting Party guarantees that with regard to such data, all applicable laws and regulations for the protection of privacy have been observed and that Skyline is entitled to use and process such data. The Contracting Party indemnifies Skyline against any third parties’ claims in this respect. If and to the extent that the Contracting Party provides Skyline with such personal data, the Contracting Party herewith explicitly authorizes Skyline to keep and to process such data, insofar this is reasonably necessary in connection with the execution of the agreement between the parties. Skyline will strictly observe all applicable privacy laws and regulations.

The Contracting Party shall pass on to each of its clients the limitations on warranty specified in the agreement between Skyline and the Contracting Party. The Contracting Party has no authority to modify Skyline´s warranty and shall indemnify Skyline for any unauthorized modification. The Contracting Party shall give and make no other warranty or representation on behalf of Skyline´s Products and/or Services as to quality, reliability, fitness for purpose or any other feature of the products and/or Services than those given by Skyline to the end user as set forth in the warranty literature applicable to the specific Product and/or Service, if any. If the Contracting Party unilaterally extends any additional warranty, the Contracting Party shall indemnify Skyline for any liability caused by such additional warranty. The Contracting Party is not allowed to re(sell) or (re)distribute any Product or Service purchased from Skyline unless explicitly permitted otherwise. The Contracting Party agrees to use Skyline’s Products strictly in accordance with applicable instructions, warnings and other information in user manuals and other Product or Service documentation, and in the manner for which they were intended.

12. Confidentiality

Parties undertake to observe strict confidentiality with regard to all confidential information they receive from the other party. They shall also impose the aforementioned obligation on their employees as well as to third parties who have been employed by them in connection with the agreement between parties. Information will in any event be regarded as confidential if one of the parties indicates such information as confidential.

13. Limitation liability Skyline

Skyline shall use reasonable efforts in producing the Products and performing the Services but does not make any warranties, express or implied, by operation of law or otherwise, with respect to the functionalities of the Products and/or the Services. Without limiting the foregoing, Skyline’s specifically disclaims all implied warranties of title, non-infringement, merchantability and fitness for a particular purpose. The liability of Skyline due to an attributable failure to perform under the agreement will be limited to compensation of the direct damages. Any liability of Skyline for special, punitive, consequential or indirect damage, including but not limited to loss of profits, loss of turnover, loss of prospective profits or anticipated sales or goodwill is excluded. The liability of Skyline shall, save for willful misconduct, never exceed the amount which is paid out in the matter concerned under the professional liability policy entered into by Skyline, to be increased by the amount of the deductible which according to the terms and conditions of the insurance policy will not be for the account of the insurer. Information about the professional liability insurance will be provided on request. This clause does not apply for death or personal injury to the extent that Skyline can by law not exclude or limit its liability for such damages.

14. Termination

Unless explicitly stipulated otherwise with regard to a specific Product or Service, all agreements have an initial term of 12 months. After the initial term, the agreement will again and again automatically be renewed for another term of 12 months, unless one of the parties terminates the agreement in writing ultimately one month before the end of the term concerned. Each party is entitled to dissolve the agreement without any judicial intervention being required if the other party fails imputably in its obligations under the agreement and the attributable failure will not be remedied in time after such party has been given properly notice of default. The dissolution does not release the Contracting Party from any payment obligation regarding any Products and/or Services delivered by Skyline, unless Skyline is in default with regard to such Product or Service. Skyline is entitled to dissolve the agreement with immediate effect, without any notice of default or judicial intervention being required and without becoming liable for damages, if the Contracting Party files for bankruptcy or suspension of debts (surséance), a petition for bankruptcy has been filed against it, passes a resolution for its liquidation, if a liquidator is appointed in respect of its assets or if the Contracting Party makes an assignment for the benefit of its creditors, or the Contracting Party deceases. Immediately after the termination of the agreement, for whatever reason, the Contracting Party will cease any and all use of the Products and/or results of Services supplied, and will return all copies of software, documentation and all other materials that are provided to the Contracting Party within the scope of the agreement. The provisions regarding ownership of intellectual property rights, indemnification, liability, confidentiality, applicable law and disputes shall survive termination or expiration of the agreement.

15. Disputes

All offers, proposals, agreements and other legal acts concerning the delivery of a Products and/or Services are governed by the laws of the Netherlands. Any disputes that may arise in connection with such offer, proposal or agreement, or these General Conditions, including any dispute regarding the applicability of these General Conditions, shall exclusively be submitted to the competent court in Rotterdam, The Netherlands without prejudice to the right of appeal and that of appeal to the supreme court.

Version September 2015