Algemene Voorwaarden

Standard Conditions

for research instructions given to FOOD DOCTORS

These Standard Conditions have been laid down by FOOD DOCTORS and have been filed at the Chamber of Commerce of Utrecht.

The legal relationship between the Principal and FOOD DOCTORS shall not be governed by the Principal’s Purchase or Standard Conditions, which are hereby expressly dismissed.

1.1 – The scope of the instructions is determined by the description of the work comprised in the quotation, inclusive of all variations which are agreed upon afterwards.

1.2 – The agreement regarding the execution of work according to instructions is reached by the Principal accepting a quotation of FOOD DOCTORS.

If the Principal has not accepted the quotation and FOOD DOCTORS nevertheless starts executing the work with the Principal’s consent, the agreed quotation shall apply. The agreement and appendices shall contain all the arrangements made by the parties and shall supersede any other arrangement, promises and agreements between the parties in that respect.

1.3 – The quotation will state how the results of the work instructed will be laid down, e.g. in a written recommendation, report, model, software, etc.

1.4 – Unless stated otherwise in the quotation, FOOD DOCTORS’s quotation is open for acceptance within one month from the date of quotation.

1.5 – Variations, additions and/or extensions of the instructions or deviations from the Standard Conditions are binding only after they have been agreed upon in writing by both parties and shall apply only to the research instructions in question.

1.6 – FOOD DOCTORS’s quotation and the knowledge and ideas contained therein will be used by the Principal only for evaluation of his interests in awarding the instructions. This article is also applicable to proposals for variations, additions and/or extension of the instructions.

1.7 – Unless expressly stated in the quotation, investigations into the existence of patent-rights of third parties or into the possibility of taking out a patent do not form part of the instructions.

2.1 – The instructions shall be carried out within the (estimated) term mentioned in the quotation, unless this should prove impossible. If it appears in due course that the term may be exceeded, FOOD DOCTORS shall consult the Principal as soon as possible. FOOD DOCTORS will not be in default by the mere expiry of the deadline without notice of default being given.

2.2 – By accepting the instructions, FOOD DOCTORS shall undertake no obligation other than to use its reasonable efforts to achieve a usable result for the Principal when carrying out the instructions.

2.3 – If the quotation (also) comprises the delivery of a material object, only the guarantee described in the quotation shall be provided by FOOD DOCTORS on this material object.

2.4 – In the event the instructions (also) include the testing of samples – unless it has been agreed that FOOD DOCTORS shall be responsible for the selection of the samples – only the Principal shall be responsible for the selection, representativity, coding marks, trademark or name of the product and for the handing over to the test laboratory of the samples, which are to be tested.

2.5 – FOOD DOCTORS shall have no obligation to start to carry out the instructions before all materials or goods in the agreed form and numbers have been placed at FOOD DOCTORS’s disposal. The term mentioned in article 2.1 will be automatically extended by the delay this might cause.

2.6 – The Principal shall bear the risk of any misunderstanding regarding the contents and execution of the agreement, in accordance with the requirements of reasonableness or, as the case may be, if such misunderstanding is due to the fact that FOOD DOCTORS receives from the Principal or any other person appointed by the Principal, either verbally or by telephone, fax, email or a similar communications medium, incorrect or incomplete specifications or receives them too late or not at all.

2.7 – FOOD DOCTORS shall notify the Principal of faults in the agreed methods of research and other particulars, if any, which become obvious during the execution of the instructions, in so far as these are, in FOOD DOCTORS’s opinion, of importance to the Principal.

3.1 – If agreed so at the time the instructions are given, FOOD DOCTORS undertakes to keep secret for a period which ends, in principle, two years from the date of the final invoice of the instructions or two years after the date of the final report should this be delivered earlier, the name of the Principal and the fact that the instructions have been carried out.

3.2 – FOOD DOCTORS undertakes to keep secret the results of the instructions, as they are supplied by FOOD DOCTORS to the Principal, except in so far as it concerns calculation methods, programming and experimental methods of working, which were not aimed for when giving the instructions.

In case of tests, analyses, measurements or research of literature, the secrecy obligation shall not extend beyond the results of the tests, analyses, measurements or research of literature.

Unless agreed otherwise at the time the instructions are given, the secrecy obligation of FOOD DOCTORS lasts until two years after the date of the final invoice of the instructions or until two years after the date of the final report should this be delivered earlier.

3.3 – Proprietary data from the Principal to which FOOD DOCTORS has access when carrying out the instructions and which have explicitly been designated as confidential by the Principal shall be kept secret by FOOD DOCTORS. The secrecy obligation of FOOD DOCTORS shall not apply to data:

– which are already in the possession of FOOD DOCTORS at the time the proprietary data become available to FOOD DOCTORS;

– which are public knowledge or (otherwise than by culpable negligence or breach of FOOD DOCTORS) become public knowledge;

– which are obtained by FOOD DOCTORS from another person in good faith; or are independently acquired by FOOD DOCTORS as a result of research carried out by FOOD DOCTORS, without using in any way the secret data.

3.4 – If any misunderstanding arises as a result of the Principal publishing the results of the instructions, FOOD DOCTORS shall be exempted from the undertaking as to secrecy to the extent required by FOOD DOCTORS to clarify the results to third parties.

3.5 – FOOD DOCTORS’s undertaking as to secrecy shall not apply where it would be contrary to FOOD DOCTORS’s legal functions and obligations, nor when and in so far as FOOD DOCTORS establishes a serious danger to persons or goods. In the latter event FOOD DOCTORS shall, if possible, consult the Principal before notifying those whose person or goods are threatened and/or the competent authorities of the dangerous situation.

3.6 – The enlisting of third parties outside FOOD DOCTORS to carry out the instructions shall be subject to the consent of the Principal, if and in so far as such enlistment would create a foreseeable risk with respect to the secrecy.

3.7 – If it is agreed in writing at the acceptance of the quotation FOOD DOCTORS shall refrain from accepting instructions from third parties within the scope of the instructions during the carrying out of the instructions.

4.1 – Within the scope of the instructions the Principal shall have full and royalty-free rights to use the results reached by carrying out the instructions as they are supplied by FOOD DOCTORS to the Principal. The rights of the Principal are exclusive for the term during which FOOD DOCTORS is committed to secrecy pursuant to article 3.2 subject to the provisions of the articles 4.2 and 4.4.

4.2 – For the term during which FOOD DOCTORS is committed to secrecy pursuant to article 3.2, FOOD DOCTORS shall be entitled to use the results of the instructions as mentioned in article 4.1 solely for its own purpose within its own organization.

4.3 – At the expiry of the term during which FOOD DOCTORS is committed to secrecy pursuant to article 3.2, FOOD DOCTORS shall have the right to use the results as mentioned in article 4.1 also on behalf of third parties and to allow third parties to use such results.

4.4 – FOOD DOCTORS shall be entitled to use for its own purposes and/or for the purposes of third parties and/or to allow third parties to use:

a. the knowledge and experience available to FOOD DOCTORS at the time of acceptance of the instructions;

b. the new specific knowledge and data which have been obtained by carrying out the instructions and which are outside the scope of the instructions as referred to in article 1.1;

c. calculation methods, programming and experimental methods of working arising from carrying out the instructions, as far as these are not the aim of the instructions.

4.5 – Reports, drawings and other material objects, which are the result of the instructions conforming to article 1.3 – without prejudice to article 6.8 – belong to respectively are the property of the Principal, subject to FOOD DOCTORS’s copyright.

Without FOOD DOCTORS’s prior written consent, the Principal shall not be allowed to:

a. reproduce and/or publicise all or part of a FOOD DOCTORS report by means of printing, photocopying, microfilm, in electronic form or any manner whatsoever, nor to store it in a retrieval system;

b. grant access to a FOOD DOCTORS report to people outside the circle of those considered as involved in the area of the work assigned and having a direct interest in said report;

c. use or have others use part or all of a FOOD DOCTORS report for instituting claims, conducting legal proceedings, advertising, negative publicity, nor for recruitment in a more general sense;

d. use the name of FOOD DOCTORS in any connection whatsoever when publicising all or part of a FOOD DOCTORS report and/or for any of the purposes mentioned under c.

6.1 – If a ‘fixed price’ is mentioned in the quotation, then such price shall be considered as the agreed price. If no ‘fixed price’ is mentioned in the quotation, then it is established between the Principal and FOOD DOCTORS that the sum payable shall be determined by way of calculation afterwards based on the rates as agreed upon. If no rates have been agreed upon, then the rates shall be determined on the basis of FOOD DOCTORS’s usual methods. If a ‘controlled price’ is mentioned in the quotation, then the quoted sum indicates only an estimate of the costs which is not binding. Moreover, FOOD DOCTORS is entitled, whenever there is a period of twelve months or longer between the date on which the work are/shall be completed, to index that part of the amount of the instructions which has not been invoiced, according to the yearly adjustment of FOOD DOCTORS’s rates.

6.2 – As regards instructions involving EUR 15,000.– or more with an expected duration of works of three months or longer, FOOD DOCTORS may limit its fees and expenses to a certain amount, should the Principal request so.

This discharges FOOD DOCTORS automatically from its obligation to proceed with the work, in so far as by doing so more would have to be spent on the carrying out of the instructions than would correspond with the limit.

6.3 – If so requested by the Principal at the time of instructions, FOOD DOCTORS will give a specification of the invoice stating person hours, person hour rates, direct material costs, as well as rates for the use of background information.

6.4 –Unless specifically stated otherwise, all work carried out by a third party falls under the responsibility of the Principle. All costs related to work by a third party are paid by the Principle directly to the third party without involvement of FOOD DOCTORS.

6.5 – Unless stated otherwise, all amounts mentioned by FOOD DOCTORS in the quotation are exclusive of purchase tax.

6.6 – FOOD DOCTORS reserves the right to submit interim invoices. FOOD DOCTORS is at all times entitled to demand advance payments.

6.7 – The Principal shall pay invoices within thirty days from the invoice date in the currency stated in the quotation, without any right to a reduction or reimbursement, as well as statutory interest on trading agreements and collection charges if the Principal exceeds the said thirty-day term of payment.

6.8 – All goods made available to the Principal by FOOD DOCTORS, including the material objects as referred to in article 4.5, as part of the work shall remain the property of FOOD DOCTORS, until the amount(s) owed by the Principal to FOOD DOCTORS has (have) been paid in full.

7.1 – FOOD DOCTORS shall be liable only for damages which are the direct result of a culpable shortcoming (breach of contract) on the part of FOOD DOCTORS in the execution of its obligations. Should FOOD DOCTORS, on the ground of the contractual liability referred to in the first sentence of this paragraph and/or on any other ground, be liable, it shall be liable only for direct damages incurred by the Principal, and only up to the amount that in the occurring event will be paid out on account of the business liability insurance(s) effected by FOOD DOCTORS. If and as far as for any reason no payment by the insurance company with respect to the abovementioned liability insurance would take place, any liability shall be restricted to the price owed by the Principal, by virtue of article 6.1.

7.2 – FOOD DOCTORS and/or persons employed and/or enlisted by FOOD DOCTORS to carry out the instructions shall not be liable for damages which the Principal suffers when applying or using the results of FOOD DOCTORS’s works, unless there is misconduct or gross negligence on the part of FOOD DOCTORS and/or on the part of persons used and/or enlisted by FOOD DOCTORS to carry out the instructions.

7.3 – The Principal shall indemnify FOOD DOCTORS and/or persons employed and/or enlisted by FOOD DOCTORS to carry out the instructions against any claims from third parties arising from damages suffered by those third parties as a result of application or use of the results of FOOD DOCTORS’s works by the Principal or any other person to whom the Principal has made that result available, unless there is misconduct or gross negligence on the part of FOOD DOCTORS and/or on the part of persons employed and/or enlisted by FOOD DOCTORS to carry out the instructions.

7.4 – In the event persons employed and/or enlisted by FOOD DOCTORS to carry out the instructions have to enter the premises of the Principal or third parties in connection with the instructions then such persons entering the aforementioned premises shall not lead to any limitation of the liability of the Principal. Any agreement with such persons to that effect shall be null and void.

7.5 – FOOD DOCTORS shall not accept liability for damages arising from the fact that any result of the works is not patentable or from infringement on the rights of third parties when the results are applied.

7.6 – FOOD DOCTORS shall not accept liability for damages arising from defects in goods supplied to FOOD DOCTORS, including software, which have been delivered by FOOD DOCTORS to the Principal, unless and in so far as FOOD DOCTORS is able to recover the damage from its supplier.

Unless agreed otherwise at the time of giving the instructions, FOOD DOCTORS shall store items, including samples offered for research or the remainders thereof if reasonably feasible, for a period of two weeks from the date the Principal has been notified of the results of the instructions. Any costs incurred in connection herewith shall be included in the price stated in the quotation. FOOD DOCTORS shall be at liberty to take suitable measures if the Principal does not make arrangements during the aforementioned period to take back such items. Any costs incurred in connection herewith shall be payable by the Principal.

9.1 – During works in connection with the instructions on the premises of the Principal, the Principal shall, if requested by FOOD DOCTORS at reasonable notice, place at FOOD DOCTORS’s disposal auxiliary staff and equipment, free of charge.

9.2 – The Principal and/or its personnel are/is obliged to observe during their/its stay at the building and/or other places of FOOD DOCTORS any rule or instruction that is in force for the users of such building or places.

9.3 – If either the Principal or FOOD DOCTORS should not fulfil any essential obligation arising from the agreement, the other party shall so notify the defaulting party in writing and allow the defaulting party a reasonable further period to fulfil its obligations as yet. In the event that the defaulting party should still not fulfil its obligations within the further period allowed, its rights arising from this agreement shall lapse and the other party shall be released from any of its obligations.

9.4 – Any claims of the Principal against FOOD DOCTORS arising out of or related to the execution of the instructions by FOOD DOCTORS and/or persons employed and/or enlisted by FOOD DOCTORS to carry out the instructions shall be null and void in the event such claims have not been put to FOOD DOCTORS in writing within one year from the date of the final invoice, unless the Principal provides proof that he was unable to notify FOOD DOCTORS within the aforementioned period.

9.5 – In the event that FOOD DOCTORS has anything in its possession related to the research to be conducted for the Principal, then FOOD DOCTORS is entitled to retain these until such time as all outstanding accounts have been settled by the Principal that pertain to this research, unless the Principal has sufficient security to guarantee payment of these accounts.

10.1 – All disputes arising from or in connection with the present agreement, or from any further agreements resulting therefrom, shall be brought exclusively before the competent Court in Utrecht, The Netherlands.

10.2 – This agreement shall be governed by Netherlands law, as referred to in article 1.2.

Standard Conditions for research instructions given to FOOD DOCTORS – June 1, .2005