General Terms and Conditions of TOKU-E EU NV
1. Definitions
a) Products
Products that are manufactured and/or packaged by TOKU-E EU NV, sold and agreed by both parties as suitable by purchaser as Research Reagents only.
b) Research Reagent
A reagent sold for in vitro experimental/laboratory use only and not for any other purpose, labelled “for in vitro research only” and not subject to approval by any regulatory agency. All Research Reagents sold are not to be used for medical, therapeutic or diagnostic applications nor human or animal consumption.
c) Sale
The act of selling, leasing, or otherwise transferring, providing, or furnishing for use for any consideration. Correspondingly, “sell” means to make or cause to be made a sale and “sold” means to have made or caused to be made a sale.
d) Industrial and Intellectual Property
The intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, or improvement, including patents, patent applications, trade secrets, and know-how; any work of authorship, including patents, patent applications, trade secrets and know-how; any other similar rights, in each case on a worldwide basis.
e) Property Rights
TOKU-E EU NV’s personal Industrial and Intellectual Proprietary Rights in the Products, including ownership rights and rights in know-how embodied in the Products.
2. Applicability of general terms and conditions
a)
The following terms and conditions shall apply to all offers from and all orders confirmed or executed by TOKU-E EU NV and all relevant agreements between TOKU-E EU NV and other parties for the sale and delivery of Products by TOKU-E EU NV.
b)
The application of these terms and conditions is (presumed to be) accepted by the purchaser by the simple fact of accepting an offer, placing an order, entering into an agreement or accepting a delivery of Products.
c)
The application of purchaser’s general terms and conditions is expressly excluded.
d)
Any derogation or amendment to these terms and conditions is only valid if explicitly agreed in writing by TOKU-E EU NV.
e)
TOKU-E EU NV is entitled to amend the general terms and conditions in accordance with changes to its commercial policy and/or economic and legal constraints. These amendments take effect at the time specified in writing by TOKU-E EU NV, sending the amended terms and conditions on request, promptly and at no cost. If no time of entry into force is specified, amendments take effect with respect to the purchaser as soon as he has been notified in writing of such amendments.
3. Offers and orders
a)
Price quotations from TOKU-E EU NV are without obligation, unless otherwise indicated.
b)
TOKU-E EU NV reserves the right to revoke or to refuse to accept, in writing, all or part of an order up to five (5) working days after purchaser’s order.
c)
All orders and all acceptances of offers by purchaser, including verbal orders or acceptances of offers, are irrevocable. In case TOKU-E EU NV should accept purchaser’s cancellation of the order, purchaser has the right to cancel their order free of charge within 2 days after receipt. When the order is cancelled after 3 days, purchaser will have to pay 25% of the amount of the order as liquidated damages, without prejudice to the right of TOKU-E EU NV to claim an indemnity equal to its losses. Advances which have already been paid will accrue definitively to TOKU-E EU NV to the extent of the compensation due.
d)
In the event that an order was not preceded by an offer of TOKU-E EU NV, TOKU-E EU NV shall only be bound to an order when it has accepted such order of purchaser in writing or if TOKU-E EU NV has begun implementation of such order. Any such order is always subject to these terms and conditions.
4. Delivery and return
a)
The delivery times included in the offer and/or order are carefully specified, but purely indicative, and are not binding times. A failure to make a timely delivery shall never entitle purchaser to additional or substitute compensation or to non-compliance with any of its own obligations. However, if the failure to provide a timely delivery is the result of a circumstance that can be attributed to TOKU-E EU NV and subsequently, if and insofar as TOKU-E EU NV still fails to deliver within a reasonable period after purchaser has informed TOKU-E EU NV thereof in writing, purchaser shall be entitled to rescind the Product order by means of a written statement.
b)
TOKU-E EU NV shall deliver the Products Free Carrier (Incoterms 2010 FCA) at TOKU-E EU NV’s warehouse, available for pick-up by purchaser’s requested carrier or third party (“Delivery”). Delivery takes place the moment when TOKU-E EU NV has put the Products at the carrier’s or third party’s disposal ready to be loaded for transportation and further delivery to purchaser. As of that moment of Delivery, loading, dispatching, transport and insuring such Products are for the account and entire risk of purchaser.
c)
Once the Products have been Delivered as per article 4 b), the Products are for purchaser’s full expense and entire risk.
d)
Products are carefully packaged based on transport and storage requirements. Products requiring extra packaging and/or storage will incur additional costs.
e)
Purchaser must declare, under penalty of inadmissibility, by registered mail to TOKU-E EU NV, all visible and apparent defects of the delivered Products immediately upon reception of the Products and at the latest within forty-eight (48) hours.
f)
If non-defective Products are returned by purchaser to TOKU-E EU NV, a 20% restocking fee will be charged for non-temperature-sensitive Products ordered by purchaser in error. Temperature-sensitive Products ordered in error cannot be returned to TOKU-E EU NV.
5. Price and payment conditions
a)
Products are offered and ordered according to the TOKU-E EU NV price list as shown on its website www.toku-e.com.
b)
The listed price for Products on the website www.toku-e.com is a net sale price, exclusive of VAT and exclusive of any ancillary costs for transportation, handling, special packaging or storage costs, or import and export duties.
c)
TOKU-E EU NV invoices the sale of Products on the date of acceptance/confirmation of the order by purchaser according to the pricelist in force at that time.
d)
Purchaser is not entitled unilaterally to deduct any discount or compensation from an invoice nor issue a credit note, unless such was explicitly agreed in advance in writing by TOKU-E EU NV.
e)
Invoices from TOKU-E EU NV to purchaser for delivery of Products are payable immediately upon Delivery unless a different payment term is explicitly agreed upon order.
f)
Payments have to be executed on the account number specified on the invoice, unless otherwise agreed.
g)
Time of payment is deemed to be the value date of receipt by TOKU-E EU NV of the payment in question.
h)
In case of non-payment on the due date or if the payment term is exceeded, purchaser owes TOKU-E EU NV automatically and without prior notice default interest equal to ten per cent (10%) per annum on the outstanding invoice amount, due and payable immediately, for the period by which the payment date was exceeded, together with a one-off compensatory payment of one hundred and twenty-five euro (125 EUR) for recovery costs.
i)
If on the date of payment of the invoice, the official mid-rate of exchange between the Euro (EUR) and the currency invoiced to purchaser, as fixed daily by the European Central Bank in Frankfurt, differs by more than 5 per cent from the exchange rate between the two said currencies on the date of TOKU-E EU NV’s order acknowledgement, TOKU-E EU NV shall have the right to adjust the sales price accordingly.
j)
Each payment by purchaser applies to payment of the oldest unpaid invoice.
k)
Purchaser’s late payment of an invoice results, immediately and without prior notice, in all other as yet undue invoices becoming due for payment by purchaser.
6. Property retention clause
a)
Unabated immediate transfer of risk to purchaser upon Delivery in accordance with article 4 b) and c), all Products sold by TOKU-E EU NV shall remain full property of TOKU-E EU NV until purchaser has paid in full all outstanding invoices and amounts that are owed to TOKU-E EU NV in connection with the underlying agreement on the delivery of TOKU-E EU NV Products and/or in connection with prior or subsequent agreements of the same nature, including damages, costs and interest. Purchaser has no right of retention in respect of those Products. If, in the meantime, purchaser has resold the Products, TOKU-E EU NV shall be entitled to assert its prerogative in respect of the amount received in its stead.
b)
Purchaser shall store the relevant Products that have not yet been fully paid for separately and in such a way that they are recognizable as TOKU-E EU NV property.
7. Intellectual Property Rights
a)
The Industrial or Intellectual Property Rights to or in connection with the Products or any materials delivered in connection therewith shall remain with TOKU-E EU NV or with third party title owners and shall never be transferred to purchaser.
b)
The Products are provided by TOKU-E EU NV without warranty of merchantability or fitness for a particular purpose or any other warranty of any kind, express or implied. TOKU-E EU NV makes no express or implied representation or warranty that the Property Rights or Products will not infringe any patent, copyright, trademark or other rights.
8. Product guarantee
a)
TOKU-E EU NV guarantees that its Products are free from defects in materials and workmanship at the time of Delivery.
If purchaser determines that any component or components of any Product(s) is found to be defective, other than apparent defective, or non-compliant within ten (10) working days upon Delivery, purchaser shall inform TOKU-E EU NV in writing within ten (10) working days on penalty of loss of any claim towards TOKU-E EU NV relating thereto.
Once the ten (10) working days deadline has expired, the Products are deemed to have been definitely accepted and approved. The burden of proof with respect to the invoked non-conformity or defect rests with purchaser. TOKU-E EU NV shall provide purchaser with replacement Product(s) to the equivalent value, free of charge, delivery fees and administration costs, unless parties have agreed another settlement.
b)
Any right to the above guarantee shall lapse if:
(i) Directions given by TOKU-E EU NV for transportation, location, storage, testing, assembly, inspection, maintenance and/or use of the Product have not been precisely followed.
(ii) The delivered Products have been used improperly or not in accordance with the agreed or usual purpose.
(iii) Without the prior permission of TOKU-E EU NV, purchaser or third parties not contracted by TOKU-E EU NV have carried out works on the Products.
(iv) Purchaser has not fulfilled any of its obligations towards TOKU-E EU NV arising from the underlying agreement, or has not fulfilled them adequately or timely.
(v) Purchaser, upon discovery of a defect in the delivered Products, did not take all necessary steps to avoid further damage to the delivered Products, for example purchaser continues to use the Products.
(vi) Defects are the result of external circumstances such as rain, water, heating up, fire, etc.
c)
TOKU-E EU NV solely provides guarantee of the Products within the limits and restrictions of the Product’s guarantee of the external manufacturer, so that the guarantee conditions of the manufacturer prevail.
d)
Products may only be returned to TOKU-E EU NV after TOKU-E EU NV has agreed thereto in writing. The Products will have to be returned in a correct manner that has to be approved beforehand by TOKU-E EU NV using transporters of TOKU-E EU NV’s choice.
9. Liability
a)
TOKU-E EU NV's liability is limited to purchaser’s damage being the direct result of:
(i) A shortcoming imputable to TOKU-E EU NV in its obligations towards purchaser.
(ii) A gross negligence of TOKU-E EU NV in the execution of its obligations.
(iii) A deliberate act of TOKU-E EU NV.
TOKU-E EU NV does not assume liability for purchaser’s indirect damage or loss of profit.
b)
Insofar TOKU-E EU NV assumes any (legal) liability, such liability is limited to the amount of twice the highest amount invoiced for the concerned Products.
c)
Purchaser must give notice of any liability claim by registered mail within a delay of five (5) working days after the harmful event has been detected.
d)
Any liability claim of purchaser will not suspend purchaser’s obligations towards TOKU-E EU NV.
10. Force Majeur
a)
If TOKU-E EU NV is wholly or partially prevented from fulfilling its obligations to purchaser through unforeseen circumstances beyond its control and which make implementation of the agreement impossible, TOKU-E EU NV is automatically released from its undertakings and is not liable for any resultant damage to purchaser and third parties. TOKU-E EU NV shall inform purchaser as soon as possible if any such form of force majeure occurs.
b)
Force majeure as referred to in article 10 a) is in any event understood to mean: war, risk of war, mobilisation, state of emergency, epidemic, quarantine, frost, ice, flood, skidding conditions, fog, storm, fire, explosion, obstruction and/or blockage of transport routes on land and/or water, water levels too high or too low, lack of suitable means of transport, organised and unorganised strike action, company lock-out, exclusion or lack of labour, non-performance, untimely or improper performance by third parties, including delivery by third parties of any raw materials, obstructions caused by government measures, disruptions to the power supply and production process, material breakage and the like, regardless of whether the circumstance in question was at any time foreseeable.
c)
TOKU-E EU NV is entitled to cancel all or part of the agreement with purchaser without prior notice or legal intervention with immediate effect if TOKU-E EU NV has been unable to fulfil an obligation under the agreement due to force majeure for a period of at least three (3) months.
11. Cancellation
a)
In each of the following cases, TOKU-E EU NV is entitled to cancel all or part of the agreement with purchaser or the execution of a delivery, without prior notice or legal intervention with immediate effect:
(i) Purchaser obtains cessation of payments, is declared bankrupt or for any other reason loses full or partial management or control of his assets.
(ii) Purchaser’s company is dissolved.
(iii) Purchaser’s business is sold.
(iv) Purchaser fails to fulfil any obligation under his agreement with TOKU-E EU NV at all, on time or properly.
b)
In case the order is cancelled by the client, cancellation is free of charge within 2 days after receipt (date of order receipt + 2). When the cancellation takes place after 2 days, 25% of the total price will be charged.
12. Protection of personal data (GDPR - Regulation (EU) 2016/679)
a)
Purpose:
TOKU-E EU NV processes personal data to be able to provide the following services:
To register you as a new customer.
To process and deliver your order.
To manage our relationship with you by notifying you about changes to our terms and conditions, services.
Mailings.
To make suggestions and recommendations to you about goods that may be of interest to you.
For statistical research for legitimate interest purposes.
b)
Personal Data:
Identification data: name, surname, telephone number, email address, financial data.
c)
Processing personal data:
Personal data will only be processed by TOKU-E EU NV. We keep your private data well protected at all times and only accessible to the people involved in your customer file and the services we perform for you.
d)
Origin of the personal data:
We receive the personal data from a natural person who had the authorization in your company.
e)
Third parties:
We will only pass on your personal data to third party companies when it is strictly necessary for the execution of our agreement/order or to comply with legal requirements.
f)
Retention period:
We will only retain your personal data for as long as necessary to fulfil the purposes we collected it for.
To determine the appropriate retention period for personal data, we consider the amount, nature and sensitivity of the personal data, the potential risk of harm from unauthorized use or disclosure of your personal data, the purposes for which we process your personal data and whether we can achieve those purposes through other means, and the applicable legal requirements.
g)
Your legal rights: You have the right to:
Request access to your personal data.
Request correction of the personal data.
Request erasure of your personal data.
unless the data must be needed for legally commitment. Please send your request to admin.eu@toku-e.com.
When data is removed, TOKU-E EU NV will notify the data owner.
h)
Right of objection:
When the data owner makes an objection against the processing for direct marketing, the personal data will no longer be used for these purposes.
13. Jurisdiction
All disputes between the parties relating to the agreement between both parties, further contracts resulting therefrom or in connection therewith shall be submitted exclusively to the competent courts in the jurisdiction of East-Flanders division Ghent.
14. Applicable law
All agreements between TOKU-E EU NV and purchaser are subject to Belgian Law.
The stipulations specified in the Convention of International Sale of Goods of April 1980 (in Dutch: “Weens Koopverdrag”) are not applicable.
TOKU-E EU NV
Poortakkerstraat 21 bus 0001 - 9051 Gent (Sint-Denijs-Westrem)
RPR Gent (division Gent)
VAT BE 0537.556.182