If the Client has created any Foreground, or parts of it, within the context of the Commission with BMC, the relevant IP Rights or the exclusive right to vest these will, of course, accrue to the Client. The written documentation pertaining to the Commission is decisive for the scope of the Client’s IP Rights (or the exclusive right to vest them). Foreground created by or on behalf of BMC accrues to BMC, unless explicitly agreed with the Client in writing in any other way. In the latter case, the specific terms and conditions under which said rights will be transferred to the Client will also be laid down in this provision.

6.4 – Protection of Foreground.

If the Client or BMC expects that the Foreground, or parts of it, can be protected by performing an additional action, for example patenting, the Client and BMC will inform each other. The party entitled to protecting that part of the Foreground will inform the other party about its exercise of that right and the specific contents. In the event of protection of the Foreground, or parts of it, BMC and the Client will provide each other with all cooperation reasonably required to vest the right by performing an additional action, for example patenting. Any further cooperation may be subject to further conditions. BMC will not investigate the possibility of protecting Foreground with an IP Right, unless explicitly stated in the Agreement.

If the party entitled to protecting the Foreground, or parts of it, by performing an additional action (for example patenting) refrains from doing so, it will inform the other party and give the other party an opportunity to protect the Foreground or that part of the Foreground or to continue the protection, in which respect it is noted that all other reciprocal rights from the Agreement, including rights of use, will be maintained. The parts of the Foreground to which the Client or BMC have an exclusive right in accordance with Article 6.3 are excluded from this provision. If the Foreground or parts of it are protected, the rights of use granted under the Agreement and the General Terms and Conditions or under a separate agreement will be maintained.

In the event the Client discovers an infringement of IP Rights with regard to BMC Foreground, the Client must notify BMC as quickly as possible, and BMC and the Client will discuss the matter.

6.5 – Use of Foreground.

The Client will acquire the right to use the part of the Foreground accrued to BMC – as provided to the Client by delivery of the Final Report – within the Scope of the Commission, subject to the limitations laid down in this Article 6.5. The right of use referred to in the previous sentence will be an exclusive right for two years from the date of the final invoice or the date of the Final Report whichever came first, except with regard to any incorporated BMC Background. BMC will be permitted at all times to use its Background during this exclusivity period for the benefit of third parties or have such third parties use it.

BMC will not investigate the existence of third-party IP Rights to the Foreground, unless explicitly stated otherwise in the Agreement.

During the exclusivity period, BMC is entitled at all times to use the working methods developed in the context of a Commission, the development of which was not directly intended with the award of the Commission, by or for the benefit of third parties.

BMC acquires the right to make free use at all times of the knowledge and experience gained by BMC during the performance of the Commission on its own behalf, for the benefit of third parties, or have third parties do so, however with due observance of the exclusivity period referred to in this Article 6.5.

Article 7: Rights of use of the final report.

7.1 – Copyrights.

The copyrights with regard to a Final Report, as well as with regard to any preliminary or interim reports or subsequent explanatory notes to the Final Report, always accrue in full to BMC.

7.2 – Use of the final report.

In connection with BMC’s position in society and its scientific integrity, BMC considers it important for a Final Report to be viewed in its context and that its contents can be examined in their entirety, including any scientific or other nuances. A Final Report, as well as any preliminary or interim reports or subsequent explanatory notes to the Final Report, is therefore intended solely for the Client’s own use; any other use requires BMC’s prior written consent.

‘Any other use’ as referred to in the sentence above means, among other things:

a. reproduction or disclosure in whole or in part by means of print, photocopy, in electronic form or in any other way, or storage in a searchable information file;

b. making available to anyone other than parties with an immediate interest, considering the Scope of the Commission, which also includes use by or on behalf of third parties;

c. use or allowing the use, in whole or in part, with a view to lodging claims, or taking legal action;

d. use or allowing the use, in whole or in part, with a view to advertising, promotion or anti-advertising or for soliciting sales or services in a more general sense.

Such prior consent by BMC may be subject to further conditions.

Article 8: Price and payment.

8.1 – Price.

If a ‘fixed price’ has been agreed with the Client, this price will be the price for the Commission, excluding the expenses incurred by BMC in consultation with the Client. If a fixed price as referred to in the previous sentence has been agreed with the Client, but – with the Client’s consent – the Commission is changed or expanded, or if it turns out during the performance of the Commission that the Client did not, or insufficiently, inform BMC about the Client’s wishes, requirements or preconditions when the Agreement was concluded, BMC will invoice the additional work resulting from this on the basis of actual costs.

If a ‘guide price’ or ‘ballpark price’ has been agreed with the Client, this price is a non-binding estimate of the price for the Commission, excluding the expenses incurred by BMC in consultation with the Client.

In case a ‘guide price’ has been agreed with the Client, or if no price has been agreed with the Client in advance, the price for the Commission including the expenses incurred by BMC in consultation with the Client will be determined and invoiced on the basis of actual costs. When calculating the actual costs, BMC will determine the rates applicable to the year in which the part(s) of the Commission is (or are) performed on the basis of the methods generally used at BMC. If the period between the Agreement date and the date on which the work will end is one year or more, BMC will be entitled to index the part of the Commission price not yet invoiced at 1 January each year in accordance with the annual adjustment of the rates used by BMC.

8.2 – Go/No-Go milestones with BMC in respect of the Commission.

In the Agreement, BMC and the Client can only explicitly and in writing determine specific milestones at which the Client may decide to continue (Go) or terminate or suspend performance of the Commission (No-Go), but only with regard to a Commission with a guide price in excess of € 20.000,=. BMC may attach further conditions to the determination of (passing) specific milestones or the ensuing termination or suspension of the Commission. At request, BMC and the Client may make arrangements in that context regarding summary interim reports. Such (preparation of a) summary interim report may be subject to further conditions as well.

8.3 – Payment.

BMC may at all times require the Client to make advance or interim payments. The payment schedule will be part of the final Agreement. All amounts quoted by BMC in an Agreement or General Terms and Conditions are exclusive of 21% VAT, as well as other expenses possibly made within the scope of the Commission, including but not limited to shipment, travel, lodging and administration costs, unless stated otherwise. All amounts due hereunder shall be payable in Euros. Transfer costs are for the expense of the Client, such that BMC will always receive the full amount stated on the invoice. BMC requires the Client to pay its invoice or invoices within fifteen (15) days of the invoice date. The Client may not deduct any BMC invoices from amounts owed by BMC to the Client, or set off such invoices against such amounts.

8.4 – Failure of payment in full or in part.

If the Client does not pay the BMC invoice within fifteen (15) days, nor after having received written notice of default, the Client will owe BMC interest (i.e. the statutory interest applicable to commercial transactions) and all reasonable costs incurred by BMC to obtain payment of its invoice, in addition to the unpaid invoice amount. The Client will only acquire IP Rights to the outcome of the Commission, or parts of it, on the condition precedent of payment of the price for the Commission.

Article 9: Consequences of non-performance.

9.1 – Consequences if BMC or the Client fail to perform the Agreement.

If BMC or the Client fail to perform a material obligation of the Agreement, the other party will submit a written demand to the non-performing party (‘defaulting party’) to perform that obligation within a reasonable period. However, a defaulting party will only be in default when the other party has requested it in writing to perform its obligations within a reasonable period and that period has lapsed without those obligations having been performed.

If the defaulting party still fails to perform after that reasonable period has lapsed, the other party, with due observance of the provisions of Article 11.4, will no longer be obliged to perform its remaining obligations under the Agreement and may terminate the Agreement.

Any claims the Client may have against BMC and/or any agents engaged by BMC in the context of performance of the Commission must be explicitly notified to BMC as soon as possible, but in any case before the first anniversary of the date of the final invoice or, if earlier, the date of delivery of the Final Report; claims lodged after that date will lapse, unless the Client demonstrate that it was impossible for the Client to notify BMC within the set term.

9.2 – Dispute.

If a dispute arises in respect the acceptance or the performance of the Agreement or any related agreements that BMC and the Client cannot resolve in mutual consultation, such a dispute will exclusively be submitted – by the Client or by BMC – to the competent court in Arnhem, and the parties consent to the jurisdiction of the court there.

Article 10: Liability and damages.

10.1 – Consequences if BMC or the Client fail to perform the Agreement.

BMC is only liable for loss or damage resulting directly from a failure to perform its obligations that is attributable to BMC.

10.2 – Limitation of liability.

If BMC is liable pursuant to the contractual liability referred to in the previous Article and/or for any other reason, BMC can only be held liable for direct loss or damage suffered by the Client up to an amount that is limited in all cases to a maximum of the invoice value of that part of the assignment from which the liability arises.

In the event of a Commission with a duration of more than six (6) months, the liability shall, contrary to the previous sentence, furthermore be limited to the part of the fee still due for the last six (6) months.

Moreover, if injury or damage for which BMC bears liability is caused to persons or things in or in connection with the performance of the Commission or otherwise, that liability shall be limited to the amount payable under the general liability insurance taken out by BMC.

10.3 – Damage that BMC is not liable for.

In no event, with due observance of the provisions of Article 10.1, is BMC, including any agents engaged by BMC in the context of performance of the Commission, furthermore liable for:

a. loss or damage suffered by the Client as a result of application or use of the outcome of the Commission, other than in the event of willful intent or gross negligence on the part of BMC;

b. loss or damage arising as a result of the fact that the outcome of the Commission cannot be patented or because application of the outcome of the Commission infringes third-party rights.

10.4 – Claim of third parties against BMC.

If third parties assert a claim against BMC and/or any agents engaged by BMC in the context of performance of the Commission regarding loss or damage arising from application or use of the outcome of the Commission by the Client or by a third party to whom the Client have made the outcome of the Commission available, the Client must fully indemnify BMC and/or any agents engaged by BMC in the context of performance of the Commission, other than in the event of willful intent or gross negligence on the part of BMC.

Article 11: Termination of Agreement.

11.1 – Term of Agreement end its ending.

An Agreement is concluded for an indefinite period of time and ends upon completion of the Commission. BMC will be deemed to have completed the Commission once BMC has made the Final Report referred to in 4.2 available to the Client. The Agreement will end automatically, with immediate effect and without any obligation to pay damages if:

a. the Client is declared bankrupt;

b. the Client is granted temporary suspension of payment;

c. the Client’s business is liquidated or wound up;

d. prejudgment or executory attachment is levied on a substantial part of the Client’s tangible and/or intangible assets or other goods of the Client.

11.2 – Premature termination of Agreement.

The Client may terminate the Agreement prematurely. If the Agreement is terminated prematurely, BMC is entitled to a part of the price, to be reasonably determined. BMC may only terminate the Agreement prematurely for serious reasons within the meaning of Book 7, Article 408 (2) of the Dutch Civil Code (‘Termination of the service provision agreement’), which states that “A service provider who entered into the service provision agreement in the course of his professional practice or business, may only terminate the agreement if it has been concluded for an indefinite term and it does not end at the completion of the service, unless there are profound reasons for its termination”.

11.3 – Effectuating premature termination of Agreement.

The Agreement is automatically terminated prematurely in the events referred to in Article 11.1 (a) through (d) or in writing. In the latter case, the date on which the Agreement ends is the date on which the Client or BMC receives the written notification regarding early termination or any later date mentioned in that notification.

In the event of early termination of the Agreement, any preliminary or interim outcome of BMC’s work is premature. That is why in the event of early termination, the Client is not entitled to use any preliminary or interim outcome of BMC’s work, neither for itself, nor may it use such outcome for the benefit of third parties or have third parties use such outcome. If BMC and the Client nevertheless explicitly agree in writing that the Client acquires IP Rights to any preliminary or interim outcome of BMC’s work, this is done under the condition precedent of payment of part of the price to be reasonably determined by BMC as referred to in Article 11.2.

11.4 – Provisions that will continue to apply after termination of the Agreement.

In the event that the Agreement ends in any way, the provisions that are intended to continue to apply in full after the end of the Agreement – such as, but not limited to, provisions in respect of liability, rights of use, confidentiality, payment, – will continue to apply in full.

Beneficial Microbes® Consultancy

Registered office:

Johan Karschstraat 3

6709 TN Wageningen

The Netherlands

IBAN: NL19INGB0000829513

BIC/SWIFT: INGBNL2A

Registration Chamber of Commerce: KvK 59535806

VAT identification number: NL001399117B75

© Beneficial Microbes® Consultancy – General Terms and Conditions – version 1.0 – January 06, 2014