LGEM GENERAL CONDITIONS OF SERVICE
November 2021
1. DEFINITIONS
In these General Terms and Conditions, the terms below are defined as follows:
Background: insofar as relevant to the Assignment, all IP Rights, as well as the knowledge, including undisclosed knowhow and Company Secrets, experience and other information to which a Party is entitled and that was not created within the context of the Assignment. This includes the objects made available by the Parties to each other within the context of the Assignment, such as but not limited to auxiliary and/or test materials, samples, prototypes, information carriers and/or computer programmes;
General Terms and Conditions: these general terms and conditions for assignments granted to Lgem;
Trade Secrets: information that satisfies the conditions as set out in Section 1 of the Trade Secrets Act; Final Report: the outcome(s) of the Assignment as definitively reported by Lgem to the Client;
Export Legislation and Regulations: the applicable legislation and regulations with respect to sanctions and export and import control, including but not limited to the export and import of military goods and goods intended for two purposes also known as duel-use goods including services and technology (jointly also referred to as ‘strategic goods’) and chemical substances;
IP Rights: all intellectual and industrial property rights, including but not limited to copyright, database, tradename, plant breeders’, design, trademark and patent rights and rights with respect to semi-conductor topographies and domain names;
Lgem: Lgem|Synalgae B.V., a private company with limited liability with registered office in ***, registered in the Commercial Register of the Chamber of Commerce under number ***. This also includes Lgem auxiliary persons for the purpose of articles 12.2 and 13.1 (second sentence), article 13.2 (with the exception of a), article 13.4 and article 13.5 of the General Terms and Conditions;
Offer: an Lgem offer, in any form whatsoever, for the (proposed) performance of the research and other activities, including any applications before the Offer is accepted in accordance with article 3.1;
Assignment: the research and other activities to be performed by Lgem as specified in the Agreement;
Client: the party that grants the research or other assignment to Lgem. This also includes the Client’s auxiliary persons for the purpose of articles 4.4, 13.2 and 13.5 of the General Terms and Conditions;
Agreement: the agreement between the Parties to perform research and other activities as referred to in article 3.1; Party: the Client or Lgem;
Parties: the Client and Lgem;
Foreground: all IP Rights, as well as the knowledge, including undisclosed knowhow and Trade Secrets, experience and other information created within the context of the Assignment. This includes the objects, such as but not limited to auxiliary and/or test materials, samples, prototypes, information carriers and/or computer programmes.
2. APPLICABILITY
2.1 – These General Terms and Conditions apply to all Offers and Agreements.
2.2 – General purchase or other conditions applied by the Client do not apply to the legal relationship between the Parties and are hereby rejected expressly.
2.3 – Lgem has adopted these General Terms and Conditions and filed with the Registry of the Amsterdam District Court and with the Chamber of Commerce. The General Terms and Conditions can also be found at www.Lgem.nl. A physical copy may be sent free of charge at the request of the Client.
3. OFFER AND AGREEMENT
3.1 – An Offer is valid for a period of one month, unless Lgem expressly determines a different term in the Offer. The Agreement is concluded if the Offer is accepted. The Client accepts the Offer in case of a request for performance of (any part of) the Assignment by the Client.
3.2 – The proposed area of application of the Assignment is specified in the Agreement. As soon as the Agreement, including all appendices, has been concluded, it will contain all agreements Lgem has concluded with the Client concerning the Assignment. Changes, additions or deviations from the Agreement are only binding if agreed in writing. 3.3 – The Client will only use the Offer, including changes, additions or deviations to it, to determine whether Lgem will be granted the Assignment. If no Agreement is concluded, Lgem retains all rights with respect to the contents of the Offer, with the exception of the information provided by the Client processed therein.
4. THE ASSIGNMENT
4.1 – Lgem carries out the Assignment within the agreed (estimated) term. If this term is about to be exceeded, the Parties will consult in order to determine a new term. Lgem will not be in default until the Client has ordered Lgem in writing to comply with one or more of its obligations under the Agreement within a reasonable term and that term has expired unused.
4.2 – Lgem commits to no more than a best efforts obligation when carrying out the Assignment. Lgem will draw up a Final Report and submit it to the Client.
4.3 – If Lgem delivers a good to the Client, Lgem does not provide any guarantee in respect thereof. When delivering a good, Lgem will deliver ‘Ex Works of the Lgem branch concerned’. ‘Ex Works’ must be interpreted in accordance with the ICC (International Chambers of Commerce) Incoterms 2020.
4.4 – The Client will not use any outcome of the Assignment in a manner that breaches Export Legislation and Regulations. The Client indemnifies Lgem against claims from third parties on the basis of a failure to comply with Export Legislation and Regulations. Lgem may suspend compliance with its obligations and suspend the Client’s rights until a permit required under the Export Legislation and Regulations has been issued. Lgem has the right to terminate the Agreement without any obligation to the Client if this permit is not granted or this is not expected within the foreseeable future.
4.5 – The Client will send Lgem upon first request a statement concerning end use and the end user of the outcome(s) of the Assignment (end user statement).
4.6 – Lgem is authorised to engage auxiliary persons in the performance of the Agreement.
4.7 – In the event the Assignment concerns goods that are made available by the Client, it will be the case that the Client bears responsibility for the selection, representativeness, indications of codes and brand or product names, identification, date of sampling and other relevant (statutory) information of the goods to be inspected, including the placement of a visible export control classification marking, and, if necessary, providing it with access, storage and operating instructions.
4.8 – Lgem is not obliged to commence performance of the Assignment before Lgem has received all necessary quantities and information to be delivered by the Client. In the event Lgem receives these required items and information later than agreed, the (estimated) term for the performance of the Assignment referred to in the Agreement can be extended by the duration of this delay in any event.
4.9 – If the Client has not collected the goods the Client has made available to Lgem (insofar as still in Lgem’s possession) within two weeks after delivery of the Final Report, Lgem will be free to implement appropriate measures, including the destruction thereof. The costs of storage, removal or destruction are for the account of the Client.
5. CONFIDENTIALITY
5.1 – Lgem will keep the contents of the Final Report secret for a period of two years after the delivery date of the Final Report, with the exception of:
a. Lgem Background;
b. Foreground developed by Lgem that concerns a non-intended outcome of the Assignment;
c. methods and techniques used and/or developed for any outcome of the Assignment;
d. use of Lgem’s findings in a format that cannot be traced back to the Client or the Assignment.
5.2 – The (i) data of the Parties designated as secret, and (ii) the Trade Secrets that come to the Parties’ attention in the performance of the Agreement, will be kept secret by the Parties, with the exception of:
a. information already in the Parties’ possession before the Parties take note thereof in the performance of the Agreement;
b. information in the public domain, or information that enter the public domain without this being attributable to the Parties;
c. information lawfully obtained by the Parties from a third party or on the basis of their own research without any use of confidential information owned by the Parties.
Lgem is no longer obliged to observe confidentiality if:
a. this is necessary to correct misunderstandings that have arisen because the Client discloses any outcome of the Assignment;
b. Lgem identifies a serious danger to persons, the environment or objects;
c. Lgem is obliged to provide information pursuant to a court decision or a decision delivered by a supervisory body under public law. If reasonably possible, Lgem will consult with the Client before Lgem discloses information in such cases.
5.3 – The duty of confidentiality (in accordance with article 5.2) with respect to information designated as secret applies for up to four (4) years after the Agreement has ended, unless otherwise agreed in the Agreement. The duty of confidentiality (in accordance with article 5.2) with respect to Trade Secrets applies in full after the Agreement has ended and is therefore not limited over time.
6. BACKGROUND
6.1 – All rights the Client holds or acquires with respect to the Client’s Background will remain vested in the Client. All rights Lgem holds or acquires with respect to Lgem’s Background will remain vested in the Lgem. Lgem has the right at all times to continue using its Background itself or for the benefit of third parties.
6.2 – Lgem acquires the right to use the Client Background insofar as necessary for the performance of the Assignment. 6.3 – Commercial use of the Lgem Background, also if it forms part of any outcome of the Assignment, requires Lgem’s prior, express, written approval. Further conditions may be attached to this approval.
7. FOREGROUND
7.1 – If the Client itself has created (part of the) Foreground within the context of the Assignment with Lgem, the IP Rights in respect thereof will be vested in the Client. The written documentation with respect to the Assignment is decisive for the extent of the Client’s IP Rights or the exclusive rights to create these. Foreground created by or on behalf of Lgem, irrespective of whether it concerns an intended or unintended outcome of the Assignment or methods and techniques used and/or developed for any outcome of the Assignment, accrue to Lgem.
7.2 – Copyrights with respect to a provisional, interim and Final Report will always be vested in full in Lgem.
8. PROTECTION OF FOREGROUND
8.1 – The Party that has the right to protect all or part of the Foreground by means of one or more IP Rights, will inform the other Party concerning the exercise of that right and the specific contents thereof. Lgem and the Client will provide each other with the cooperation required for the creation of one or more IP Rights. Lgem will not investigate the possibility of protecting Foreground by means of IP Rights.
8.2 – In the event, the Client has the right to protect all or part of the Foreground and decides against (further) protection thereof, the Client will inform Lgem thereof and enable Lgem to protect the relevant part of the Foreground or to continue the protection, in which connection all other rights under the Agreement between the Parties, including rights of use, will remain unchanged.
8.3 – In the event, the Client takes note of an infringement of IP Rights relating to the Lgem Foreground and/or the Lgem Background, the Client will inform Lgem thereof as soon as possible.
9. USE OF THE FOREGROUND
9.1 – The Client acquires the right to use the part of the Foreground that accrues to Lgem within the area of application of the Assignment as from the date Lgem delivers the Final Report to the Client, with the exception of the limitations
included in article 9. This right of use is exclusive for a period of two years after the date of delivery of the Final Report, with the exception of any Lgem Background required and/or processed therein in respect of which the Parties will conclude a separate licence for use.
9.2 – Lgem has the right at all times to use the Foreground developed by Lgem that concerns an unintended outcome of the Assignment, or the methods and techniques used and/or developed for any outcome of the Assignment or have these used by third parties or for the benefit of third parties.
9.3 – Lgem has the right at all times to use the Foreground itself, as background knowledge as part of different research, and also have this Foreground used by or for the benefit of third parties after the period of exclusivity referred to in article 9.1 has ended.
9.4 – Lgem does not investigate the existence of third-party IP Rights concerning the Foreground.
10. USE OF THE FINAL REPORT
10.1 – A Final Report, as well as any provisional or interim report or explanation thereto, is exclusively intended for the Client’s own use. All other use requires Lgem’s prior, written approval, including:
a. reproduction or disclosure by means of print, photocopy, in electronic format or in any other way whatsoever, or storage in an information file;
b. allowing parties other than direct stakeholders to inspect it including use by or for the benefit of third parties;
c. having it used for the benefit of third parties for the purpose of bringing claims or conducting legal proceedings
d. Using it or having it used in whole or in part for advertising or anti-advertising purposes, including but not limited to publication in or use for the benefit of media, or the purpose of acquisition in a more general sense.
Lgem may attach further conditions to its approval. In any event, any person to whom the Final Report may be provided on the basis of Article 10 must be able to assess the Final Report in full.
11. PRICE AND PAYMENT
11.1 – A ‘target price’ referred to in the Offer or agreed in the Agreement does not apply as a binding indication of the price of the Assignment, excluding the expenses incurred by Lgem in consultation with the Client. The definitive price of the Assignment, also in the absence of a ‘target price’, will be determined and charged on the basis of subsequent calculation. Lgem has the right to index the part of the price of the Assignment not yet invoiced each time on 1 January in accordance with the index figure published by Statistics Netherlands similarly to the annual adjustment of the rates that apply at Lgem. Lgem reserves the right to apply a different indexation calculation (in the interim) in the event of unexpected events including but not limited to natural disasters or pandemics that have material adverse consequences for the rates applied by Lgem.
11.2 – If a ‘fixed price’ was agreed expressly in the Agreement, this price will apply to the Assignment, with the exception of expenses incurred by Lgem in consultation with the Client. If the Assignment is changed or expanded with the Client’s consent, or in the event Lgem had to perform additional activities because the Client did not provide information or provided insufficient information upon conclusion of the Agreement regarding his or her wishes, requirements or preconditions, Lgem will charge the related additional costs on the basis of subsequent calculation and the Client will owe these additional costs.
11.3 – Lgem always has the right to demand that the Client makes an advance or interim payment.
11.4 – All amounts indicated in the Offer and/or the Agreement are exclusive of VAT and any other levies imposed by the government unless indicated otherwise.
11.5 – The Client is required to pay Lgem invoices within thirty (30) days after the dispatch of the invoice. Setoff by the Client is not allowed. If the Client exceeds this term, the Client will also owe statutory interest for commercial transactions and all judicial and extrajudicial collection costs Lgem has to incur in order to obtain payment of its invoice. The aforementioned judicial and extrajudicial collection costs will amount to at least 15% of Lgem’s total claim. Lgem retains title to all movable and immovable property or other goods Lgem has delivered or will deliver to the Client until the relevant Lgem invoice and any statutory commercial interest and collections costs have been paid in full. Acquisition of IP Rights in respect of all or parts of the outcome of the Assignment does not take place until after the price referred to in article 11 has been paid in full by the Client.
11.6 – Irrespective of the agreed payment conditions, the Client will be obliged to provide security that is sufficient in Lgem’s opinion for payment of the Assignment at Lgem’s first request. The Client will be in default with immediate effect
if the Client fails to do so. In such cases, Lgem will have the right to terminate the Agreement and recover its possible damage from the Client.
12. NON-PERFORMANCE
12.1 – In the event, a Party that is in default under the Agreement fails to comply with its obligations also after expiry of a reasonable term, the other Party will no longer be obliged to comply with its (remaining) obligations under the Agreement and it will have the right to terminate the Agreement, with due observance of the provisions of article 14.1. 12.2 – The Client is required to notify Lgem of its possible claims against Lgem as soon as possible but in any event within six months after the date of delivery of the Final Report, in writing and provided with reasons. Claims brought later lapse automatically.
13. LIABILITY
13.1 – Lgem is only liable for direct damage that is the direct result of an attributable failure on the part of Lgem to comply with its obligations under the Agreement. Lgem’s obligation to compensate damage on any basis whatsoever is limited to the amount for which Lgem is insured pursuant to or under insurance taken out by it. However, the scope of this obligation never exceeds the amount that is paid out in the relevant case under this insurance. Lgem is never liable for consequential damage. Consequential damage includes among other things business interruption loss, loss of production, lost profit and fines.
13.2 – Lgem is furthermore not liable for damage sustained by the Client:
a. as a result of application or use of any outcome of the Assignment;
b. as a result of the fact that any outcome of the Assignment does not qualify for protection via one or more IP Rights or because an application or use of any outcome of the Assignment infringes the rights of third parties;
c. that is the consequence of defects in goods delivered to Lgem, including software, which is or was delivered by Lgem to the Client, unless and insofar as Lgem’s supplier has compensated the damage in full to Lgem.
13.3 – The limitations of liability included in articles 13.1 and 13.2 do not apply if and insofar as the liability is the result of intent or wilful recklessness on the part of Lgem.
13.4 – The Client will indemnify Lgem fully against claims from third parties in connection with damage that arises from the application or use of any outcome of the Assignment by the Client or a third party to whom the Client made this outcome available unless the outcome concerned is the consequence of intent or gross negligence on the part of Lgem. 13.5 – Lgem is not bound by the Client’s stipulations under the Agreement or otherwise for the purpose of limiting all or part of the Client’s liability.
14. TERM AND TERMINATION
14.1 – An Agreement is concluded for an indefinite period and ends upon delivery of the Final Report and full payment of the price referred to in article 11. The Agreement ends by operation of law with immediate effect and without any obligation to pay compensation on Lgem’s part if:
a. the Client is declared bankrupt or a petition to that effect is submitted;
b. the Client is granted a (provisional) suspension of payment or a petition to that effect is submitted;
c. the Client’s business is liquidated;
d. a prejudgment attachment or an attachment in execution is levied against a substantial part of the Client’s movable or immovable property or other items of property owned by the Client, or;
e. The Client does not comply with its payment obligations.
If the Final Report has not been delivered, the date of termination of the Agreement will be deemed to be the same as the date of delivery of the Final Report upon termination of the Agreement pursuant to this article 14.1 or pursuant to article 12.1.
14.2 – Irrespective of whether Lgem performed in full, Lgem will have the right to terminate the Assignment prematurely or to suspend its performance if one of the situations referred to in article 14.1 occurs.
14.3 – In case of early termination, the Client will not have the right to use a provisional or interim outcome of the Assignment for its own benefit, or have it used by or for the benefit of third parties. If the Parties do not agree in writing that the Client acquires the IP Rights in respect of a provisional or interim outcome of the Assignment, these IP Rights will not pass until the Client has paid the part of the price to be determined in a reasonable manner by Lgem as referred to in article 11.
14.4 – The services already provided and the related payment obligation on the part of the Client will not be the subject of any obligation to undo, unless the Client is able to prove that Lgem is in default specifically with respect to those services. Amounts invoiced by Lgem before that termination in connection with performances already delivered or performed properly by it within the context of the performance of the Agreement remain due in full and become immediately due and payable at the moment of dissolution.
15. FORCE MAJEURE
15.1 – Lgem is not liable for any failure or any delay in the performance of the Agreement if the failure or delay is attributable to force majeure as defined in (i) article 15.2 and/or (ii) the law or case law. In case of a failure or a delay as referred to above, the performance of the part or parts of the Agreement concerned will be suspended for as long as the failure in question persists, in which connection no liability arises on Lgem’s part towards the Client for any damage that arises therefrom.
15.2 – Force majeure is defined as circumstances beyond the control of and not attributable to Lgem that are such in nature that compliance or further compliance with the Agreement cannot be expected of it within reason. Force majeure includes in any event but is not limited to: (i) such sickness absence on the part of Lgem’s employees that the performance of the Agreement is seriously obstructed, (ii) force majeure at a third party engaged by Lgem, (iii) technical breakdowns, (iv) import, export and/or transit prohibitions, (v) business, traffic and/or transport interruptions, (vi) changed government measures, (vii) epidemics and pandemics, (viii) extreme weather conditions and (ix) fires.
15.3 – If the situation of force majeure continues to exist for a period of three (3) consecutive months, Lgem will have the right to dissolve all or part of the Agreement, without such creating any liability towards the Client.
16. PERSONAL DATA
16.1 – Terms defined in the General Data Protection Regulation (EU) 2016/679 (“GDPR”) have the same meaning in this article as in the GDPR.
16.2 – Unless otherwise set out in an Offer, Lgem will never process personal data on the instructions of the Client. In the event Lgem processes personal data within the context of the Agreement and determines the purposes and means in this connection, Lgem will be the controller within the meaning of the GDPR.
16.3 – In the event a breach of personal data that are processed within the context of the Agreement has taken place, the Parties will inform each other thereof without unreasonable delays. Insofar as possible, the Parties will consult with each other prior to making any notifications thereof to the supervisory authorities or the data subjects.
16.4 – The Parties inform each other without unreasonable delays of an investigation carried out by a supervisory authority in connection with personal data being processed within the context of the Agreement.
17. CHOICE OF FORUM AND LAW
17.1 – All Offers and Agreements and these General Terms and Conditions are governed by Dutch law.
17.2 – In case of a dispute between the Parties concerning the Offer or the Agreement (or related agreements) which the Parties are unable to resolve in an amicable manner, this dispute will be submitted to the competent court in The Hague.
17.3 – The Vienna Sales Convention does not apply nor does any other international regulation whose exclusion is allowed.
18. MISCELLANEOUS
18.1 – If the Agreement ends in any way, the provisions that are intended to remain in effect also after the Agreement has ended, such as provisions concerning liability, rights of use, confidentiality and the choice of law and form, will remain in effect.
18.2 – If any provision of the General Terms and Conditions is found to be invalid, such will not affect the validity of the General Terms and Conditions of the Agreement as a whole.
