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Terms and Conditions for research and development services by Eurekite B.V.

In these general terms and conditions (“General Terms and Conditions”) for research and development assignments to Eurekite BV (“Eurekite”) is understood by:
- “Partner”: the party that gives the assignment
- “Eurekite”: the party who will execute the assignment
- “Agreement”: offers, assignments, projects, contracts and all other legal relationships.

1. Applicability of these terms and conditions

These Terms and Conditions are applicable to all Agreements between Eurekite and the Partner. These General Terms and Conditions are also applicable to Agreements with Eurekite, whereby Eurekite uses third parties for carrying out the assignment. Any general purchase conditions or other general terms and conditions used by the Partner will not apply to the legal relationship between the Partner and Eurekite, and are hereby expressly rejected. Eurekite will carry out the Agreement on a best effort base.

2. Scope of the Agreement, offer

2.1 The scope of the Agreement is determined by the description of the activities in an offer or other formal descriptive document from Eurekite, including all changes which will be made afterwards in mutual consultation.
2.2 Unless stated otherwise in the offer, Eurekite stands by its offer during one (1) month from the offer date.

3. Execution of the Agreement, result

3.1 The Agreement will be carried out within the period stated in the offer in consultation with the Partner, unless this should be proven impossible. Eurekite has the right to carry out the Agreement in different phases within the period and to send a bill for work already carried out. If the period threatens to be exceeded, Eurekite will be obliged to consult with the Partner as soon as possible.
3.2 Eurekite will not be obliged to commence carrying out the Agreement before all information, substances or objects to be made available by the Partner to Eurekite have in fact been made available to Eurekite in the agreed form and numbers. The period referred to in article 3.1 will be automatically extended by any delay that may be caused by this.
3.3 The Partner will carry the risk of any misunderstanding in respect of the contents and performance of the Agreement, if this in reason should be for Partner’s risk or has been caused by specifications not received by Eurekite or received incorrectly, not in time or incompletely, or by other information given orally or by a person designated for this purpose by the Partner or transmitted by any technical means such as e.g. by telephone, fax, email and similar communication media.
3.4 Eurekite will inform the Partner of manifestly apparent shortcomings in the agreed research and development methods and other particulars that become apparent during the execution of the Agreement, which in Eurekite opinion are of importance to the Partner.
3.5 Eurekite shall carry out the Agreement to the best of its ability and insight and in accordance with the demands of good workmanship.

4. Rights to results

Within the scope of the Agreement the Partner will have the full and free right of use and ownership of the knowledge it possesses or will gain during the performance of the assignment including any intellectual property rights pertaining thereto.
Insofar as the assignment carried out by Eurekite leads to patentable matter, Eurekite will have the right to apply for (a) patent(s) in its own name and for its own account.

5. Price and Payment

5.1 Unless stated otherwise, all amounts mentioned by Eurekite in the offer are exclusive of turnover taxes.
5.2 Eurekite shall be entitled to invoice the Partner periodically for any activities performed. Likewise, Eurekite may demand partial advance payment or security for the payment up to the amount of the Agreement. Invoices shall be sent to the Partner's address, unless otherwise agreed.
5.3 If the advance is not paid on time, Eurekite cannot be held to either start or continue activities that form part of Agreement.
5.4 The Partner shall be obliged to pay the invoice in euros within thirty (30) days from date of invoice. If the Partner exceeds this term of payment he shall be obliged, after having been declared in default by Eurekite, to pay both the legal interest counted from the due date and the costs of collection out of court.

6. Liability

6.1 Eurekite shall be held liable for any direct damage suffered by the Partner as a result of Eurekite’ non-performance, not exceeding, however, the amount due by the Partner in accordance with the amount of the offer. Eurekite shall never be held liable for indirect damage, like consequential damage, loss of profit, missed savings and damage suffered by business interruption.
6.2 If the Partner uses or applies any result obtained through Eurekite, or gives third parties the opportunity to use or apply them (or have them used or applied), the Partner shall indemnify Eurekite against any claims for his part and claims from third parties due to damage, unless this damage is the result of the fault or gross negligence of Eurekite.
6.3 The Partner shall be held liable for any damage suffered by Eurekite and/or persons called in by it during the carrying out of the assignment on the Partner’s premises, unless this is due to Eurekite’ fault or that of the persons called in by it.
6.4 Eurekite shall not be held liable for any damage caused by defects in the matters supplied to Eurekite, which have been passed on by Eurekite to the Partner, unless and insofar as Eurekite is able to hold its supplier liable for this damage.
6.5. Eurekite cannot be held liable for damages of whatever nature, which have arisen due to the fact that Eurekite has based itself on incorrect and/or incomplete data supplied by the Partner

7. Defects; terms of complaint

7.1. Complaints about the activities carried out as part of the Agreement should be reported by the Partner in writing to Eurekite within ten (10) days after discovery, but at the latest within sixty (60) days after completion of the activities in question.
7.2. If a complaint is justified, Eurekite will carry out the activities as agreed, unless this has meanwhile become useless. If this is the case, the Partner should make it known in writing. If the carrying out of the agreed service is no longer possible or has lost its purpose, Eurekite can only be held liable within the limits of article 6.1 of these General Terms and Conditions.
7.3. Even when the Partner lodges a complaint on time, his obligation to pay shall remain.

8. Force Majeure (non-accountable faults) Eurekite shall not be held liable if it is not able to fulfill its obligations to the Partner or to fulfill these on time as a result of force majeure. Force majeure shall include circumstances which prevent the normal performance of activities.

9. Annulment of the Agreement

The claims which Eurekite has on the Partner are immediately payable in the following cases:
- Circumstances which have become known to Eurekite after concluding the Agreement, provide sufficient grounds for Eurekite to fear that the Partner will be unable to meet his obligations;
- If Eurekite has asked the Partner to provide surety in respect of the performance and this surety is not provided or insufficiently so. In the said cases Eurekite will be entitled to suspend further execution of the Agreement or to proceed to terminate the Agreement, this without prejudice to the right of Eurekite to claim damages.
If circumstances were to arise with regard to persons and/or materials of which Eurekite avails itself for the execution of the Agreement or is used to avail itself, and which are of such a nature that execution of the agreement becomes impossible or so difficult and/or disproportionately expensive that observance of the agreement can no longer be reasonably expected, then Eurekite is entitled to terminate the agreement.

10. Default

If one of the parties does not fulfil its obligations arising from the Agreement and fails to fulfil this obligation or to compensate the damage suffered by the other party within a period of thirty (30) days after receipt of a request for compliance and/or indemnification from that other party, the said other party shall have the right to terminate the Agreement at any time. Such termination shall not affect the performance of obligations by the party in default or the rights of the other party which are due or exist before the date of termination.

11. Disputes, competent court; applicable law

11.1 All disputes that might arise as a result of the Agreement, or of further Agreements resulting from it, will be submitted for exclusive settlement to the competent court in The Hague.
11.2 Any agreement between Eurekite and the Partner shall be governed by and construed in accordance with the Laws of the Netherlands.