General terms & conditions

1.1 These general terms and conditions (hereinafter “General Terms and Conditions”) apply to all services and products provided by Pathosense BV, with registered office at Pastoriestraat 10, 2500 Lier, Belgium and with company number 0755.557.744 (RLE Antwerp, section Mechelen) (hereafter “Pathosense”) (the “Services”), to its clients (the “Client(s)”), including to any offer, quotation, order, invoice and/or other document issued by one of the parties in the framework of the provision of Services.  The application of any other additional or deviating terms and conditions of the Client, mentioned on whatever document, are explicitly rejected.

1.2 Pathosense shall be entitled to add specific terms and conditions into any offer it issues to Clients.  Other deviations from these terms and conditions are only possible if explicitly agreed between the parties in writing.  In case of discrepancies between the provisions of these General Terms and Conditions and the specific terms and conditions incorporated by Pathosense in any offer or agreed between the parties in writing, the specific terms and conditions shall take precedence over the provisions of these General Terms and Conditions.

1.3 These General Terms and Conditions, and where applicable, the specific terms and conditions mentioned by Pathosense in the offer or otherwise agreed between the parties in writing, constitute the entire agreement between the parties relating to the specific project for which the agreement is concluded (hereinafter “Agreement”) and replace and supersede all prior written or oral declarations, agreements or arrangements between the parties relating to the same subject matter.

2.1. In the event of a written offer made by Pathosense to the Client, an Agreement shall be considered to be concluded between the parties as soon as the offer for Services, in whatever form, is accepted by the Client within its validity period by way of:

• a request to commence the Services; or
• a confirmation of the offer, in whatever form, by the Client, including (without limitation) the return of a duly signed copy of a written offer to Pathosense, as the case may be.

2.2 In the event of an order placed by the Client on the Pathosense website or platform, an Agreement shall be considered to be concluded between the parties as soon as the order is confirmed by Pathosense.

3.1. Pathosense may determine in its sole discretion whether an advance payment will have to be paid by the Client prior to commencing the Services. In any event, Pathosense requires an advance payment of 30% of the full contract value for all Services related to sequencing.

3.2 Invoices issued by Pathosense shall be payable by the Client within twenty-one (21) days of the invoice date.  Payment shall be made via wire transfer to Pathosense’s account mentioned on the invoice.

3.3. Upon non-payment of any invoice on its due date, Pathosense shall automatically, without any prior notice, be entitled to the payment by the Client of late payment interests at a rate of one (1) % per month starting from the due date, as well as to the compensation of all recovery costs incurred by Pathosense as a result of such non-payment, with a minimum of ten (10) % of the unpaid invoice, but with the possibility to demonstrate that actual recovery costs incurred were higher.  In addition, upon non-payment of any invoice on its due date, Pathosense may, at its own discretion and without prejudice to any other remedies it may have:

• require the immediate payment of all outstanding invoices, under any agreement with the Client whatsoever;
• suspend any further performance of the Services, under any agreement with the Client whatsoever, until payment of all outstanding invoices has been received; and/or
• terminate the Agreement with immediate effect, without prior judicial intervention and without owing any compensation to the Client, by sending a notice hereof to the Client in writing.  In such case, all outstanding invoices under any agreement with the Client whatsoever shall become immediately due.  In addition and where applicable, the Client shall fully reimburse Pathosense for all Services that have already been performed, as well as for all non-recoverable costs and expenses already incurred for Services still to be performed. 

3.4. Complaints relating to the quality of the Services provided to the Client or the results expected by the Client shall not entitle the Client to withhold payment of any of the invoices issued by Pathosense.  Complaints shall exclusively be handled in accordance with Article 4.7 of the General Terms and Conditions.

4.1. All obligations and commitments undertaken by Pathosense under the Agreement are best effort commitments and do not constitute obligations of result.  Unless explicitly agreed otherwise, any timelines mentioned in the offer or otherwise communicated by Pathosense merely constitute estimates and are not binding upon Pathosense.  Save for cases of gross negligence or serious or intentional fault by Pathosense, failure to meet the estimated timelines mentioned in the offer, shall not give the Client the right to any claim or indemnity. 

4.2. In the performance of the Services, Pathosense’s employees and/or subcontractors shall only work under the supervision and control of Pathosense and they shall only receive instructions from Pathosense.  The Client is only entitled to give Pathosense’s employees and/or subcontractors instructions relating to health and safety at the Client’s premises, in the event Pathosense’s employees and/or subcontractors are required to visit the Client’s premises.

4.3. When collecting samples, the Client is not allowed to use any other tools or materials than the swab and sampling material delivered by Pathosense, unless indicated otherwise by Pathosense or otherwise agreed between the parties.  Sample collection happens at the Client’s sole responsibility.  Pathosense shall not be responsible nor accept liability for the quality and fitness of samples for diagnostics purposes, and shall at all times be allowed to refuse material submitted by the Client if the samples are, in Pathosense’s reasonable opinion, of poor quality.

4.4. Pathosense shall not be responsible nor accept liability for any samples or materials lost, damaged or compromised during transportation or transit.  In the event Pathosense has agreed to ship materials to Client, Pathosense will package materials using appropriate packaging and in accordance with applicable regulations.

4.5. Any material submitted by the Client and used by Pathosense in the framework of the Services shall be destroyed within five (5) days following the date of reporting of the results by Pathosense, except if the Client explicitly requests Pathosense within the aforementioned timeline to store the material for a longer period of time, at Client’s expense.  Nonetheless, Pathosense shall not be responsible nor accept liability for the quality of stored material, and cannot guarantee the viability of stored pathogens.

4.6. Pathosense makes no warranties in relation to the Services and/or any diagnostic info yielded by the Pathosense platform, express or implied, written or oral, including, without being limited to any warranty of merchantability or suitability of the Services and/or deliverables for any particular purpose.  It is explicitly agreed and understood that the Client shall be the sole party responsible for the application, interpretation, processing and use of the results of the Services provided by Pathosense and for determining their suitability for the intended purpose.  In the event any of the results yielded by Pathosense would result in mandatory reporting obligations relating to infectious diseases, this shall be the sole responsibility of the Client.

4.7. Complaints in relation to the performance of the Services or deliverables or in relation to any invoices issued by Pathosense must promptly be made by the Client in writing and sent to Pathosense at the latest within seven (7) days from the moment of delivery or issuance of the Service, deliverable or invoice to which the complaint relates.  Pathosense shall duly examine any complaint received and shall communicate its findings and its decision regarding acceptance of liability in writing to the Client within thirty (30) days following receipt of the complaint.  In case, after examination, Pathosense accepts liability for the claim made, the sole and exclusive remedy of the Client shall be the re-delivery of the Services and/or deliverables at issue.  Notwithstanding the aforementioned, Pathosense reserves the right to credit or reimburse the Client for an amount equal to the price paid by the Client to Pathosense in relation to the non-conforming services or deliverables instead of re-delivering them.

5.1. Except for the warranties and indemnities expressly set forth in these General Terms and Conditions, Pathosense shall not have any other liability towards the Client or any other third party relying on the Services.

5.2. In no event shall Pathosense be liable towards the Client or any other third party relying on the Services for any special, exemplary, indirect, incidental, punitive or consequential damages, losses, costs or expenses whatsoever, including, without being limited to loss of profits, savings or revenue, loss of business, loss of contracts, loss of opportunity, loss of reputation, even if foreseeable or if Pathosense has been advised of the possibility of the incurrence of such damages, losses, costs or expenses. 

5.3. To the maximum extent permitted by applicable law and save for cases of serious or intentional fault or gross negligence, injury to body, life or health and breach of material contractual obligations, the total liability of Pathosense towards the Client shall be limited to the total value of the Agreement, as detailed in the offer.  This limitation of liability shall be valid, irrespective of whether the act, omission or negligence is due to Pathosense itself or to its personnel or subcontractors, and irrespective of the applicable liability regime, including, without being limited to contractual liability, tort liability and faultless liability.

5.4. Pathosense cannot be held liable for any damages, losses, costs or expenses directly, indirectly or partially resulting from an act, omission or negligence of the Client, its personnel or a third party.

6.1. A party cannot be held liable for any delay or non-execution of its obligations under these General Terms and Conditions or the Agreement in as far as this delay or non-execution would be the result of circumstances over which this party reasonably does not have any control, including, without being limited to natural disasters, epidemics, strike, lockout or other labour disputes, sabotage, fire, explosion, flood, acts of government, war or unforeseen shortages or unavailability of supplies (hereinafter “Situation of Force Majeure”).  The impossibility of the Client to perform as a result of insolvency or lack of financial means shall not be considered as a Situation of Force Majeure. 

6.2. The party invoking a Situation of Force Majeure shall immediately inform the other party in writing about the nature and the expected impact of the Situation of Force Majeure.  As soon as the Situation of Force Majeure has been remedied, the party invoking the Situation of Force Majeure shall reassume its obligations. 

6.3. In as far as any delay or non-execution by Pathosense is due to the failure of a third party whose intervention is necessary in order for Pathosense to be able to perform the Agreement, including subcontractors engaged by Pathosense, Pathosense cannot be held liable for such delay or non-execution in as far as the third party rightfully can invoke a Situation of Force Majeure as described in Article 6.1 of these General Terms and Conditions.  In such case, Pathosense shall not be obliged to engage another third party.

7.1. Subject to full payment of the price for the Services, Pathosense grants the Client a non-exclusive and non-transferable right to use the Services, products and and deliverables provided as part of the Services, under the terms mentioned in this Article. The titles and ownership rights in the Services and the deliverables are not transferred to the Client.

7.2. The Client shall not, without the prior written consent of Pathosense:

• Resell any part of the Services or any content or deliverable provided as part of the Services;
• Communicate, distribute, transmit, publish, broadcast or circulate any content or deliverable provided as part of the Services;
• Commit any act or use the Services and/or content or deliverables provided as part of the Services in such a way that could infringe upon the intellectual property rights of Pathosense and/or any third party;
• Use the Services and/or content or deliverables provided as part of the Servies in a way that could harm the name or reputation of Pathosense.

7.3. All titles and intellectual property rights, including without being limited to rights on ideas, inventions, concepts, discoveries, works of authorship, patents, designs, copyrights, trademarks, trade secrets, know how, software or databases, irrespective of whether they are registered or not, which are owned by Pathosense or which are developed by Pathosense within the framework of the Agreement shall remain the sole property of Pathosense.

7.4. Notwithstanding the foregoing, neither Party shall, as a result of this Agreement, acquire any title or right in any intellectual property that the other party owned, licensed or controlled as of the date of entry into force of the Agreement or that the other party obtains separate and apart from the performance of this Agreement.

7.5. Nothing shall prevent Pathosense from using any general or sector-specific ideas, concepts, know how, methodologies, processes, technologies, algorithms or techniques acquired when performing the Services under this Agreement in projects for other Clients, provided that in doing so no confidentiality obligations and/or intellectual property rights from the Client are infringed.

8.1. The party receiving (hereinafter “Receiving Party”) any information, documents and personal data from the other party (hereinafter “Disclosing Party”) in the framework of the Agreement that can reasonably be considered as confidential information, irrespective of whether this information, documents or personal data have been explicitly marked as confidential or are covered by any intellectual property right (hereinafter “Confidential Information”), engages to keep such Confidential Information strictly confidential, except if the Receiving Party can show that the Confidential Information:

• was already publicly available at the moment of disclosure, without any confidentiality obligation being breached by the Receiving Party;
• was already rightfully in the possession of or received by the Receiving Party at the moment the Disclosing Party disclosed it, without any confidentiality obligation being breached by the Receiving Party; or
• was developed in an independent manner by the Receiving Party.

8.2. The Receiving Party shall use the Confidential Information only for the purpose of execution of the Agreement and shall not communicate it to third parties, unless upon the Disclosing Party’s prior written consent.  The Receiving Party will only disclose the Confidential Information to its personnel and/or subcontractors on a strict need-to-know basis, and ensure that all such personnel and/or subcontractors are bound by confidentiality obligations not less stringent than those contained in this Article.

8.3. The confidentiality obligations mentioned in this Article are valid during the entire duration of the Agreement and for a period of five (5) years following the end thereof. 

8.4. If the Receiving Party is obliged by law or by the order of any court or regulatory authority to disclose Confidential Information belonging to the Disclosing Party, the Receiving Party will inform the Disclosing Party thereof immediately in writing, will restrict disclosure to the minimum required and will clearly communicate that the Disclosed Information is of a confidential nature.

8.5. Confidential Information shall at all times remain the property of the Disclosing Party.

8.6. Upon termination of the Agreement for whatever reason, the Receiving Party shall, at simple request of the Disclosing Party, promptly either return all Confidential Information to the Disclosing Party, or irreversibly destroy such information and confirm such destruction in writing to the Disclosing Party.

9.1. The performance of the Agreement may entail the processing of personal data by Pathosense on behalf of the Client.  More in particular, in the framework of its service provision to the Client under the Agreement, Pathosense may have access to and process personal data (including, without being limited to name and contact details) of customers, suppliers, prospects, employees, subcontractors and/or other third parties working with the Client. Such processing shall at all times happen in accordance with all relevant national and international data protection laws and regulations.

9.2. Pathosense shall only collect, process and store personal data on behalf of the Client in the framework of and for the duration of the execution of the Services under this Agreement, thereby at all times respecting the Client’s documented instructions.  Pathosense shall not collect, process or store more data than necessary for the indicated purposes.  Pathosense shall provide the Client with all necessary assistance to allow the Client to timely respond to requests by the data subjects to exercise their rights of access, rectification or erasure.  Pathosense shall not transfer any personal data processed on behalf of the Client to a third country without the prior written consent of the Client.

9.3. Pathosense guarantees to implement appropriate technical and organizational measures to protect the personal data against unauthorized disclosure of or access to such data and against accidental or unlawful destruction, loss or alteration and to safeguard the rights of the data subject.  Pathosense shall strictly limit access to the personal data to personnel and subcontractors on a need-to-know basis in the framework of the performance of the Agreement.  In case of a security incident, Pathosense shall immediately notify the Client thereof in writing and take all reasonable measures to investigate and remedy the effects of such security incident.

9.4. Pathosense shall not process or retain any personal data for longer than necessary for the purpose of the processing, which shall in any case be limited to maximally the duration of the Agreement.  After the end of the data processing on behalf of the Client, Pathosense shall, at the choice of the Client, return all personal data and any copies thereof to the Client or irreversibly delete these data from its systems and confirm such deletion to the Client in writing.

10.1. Unless explicitly agreed otherwise, the Agreement shall automatically end when the parties have fulfilled all their obligations under the Agreement, as detailed in the offer. 

10.2. Pathosense shall have the right to terminate the Agreement at all times, by providing written notice thereof to the Client and respecting a notice period of thirty (30) days. 

10.3. Pathosense shall have the right to terminate the Agreement at all times, without prior judicial intervention and without owing any compensation to the Client, by sending a notice hereof to the Client in writing, in case:

• The Client is in breach of one of the provisions of these General Terms and Conditions or the Sales Agreement, and has not duly remedied this breach within fifteen (15) days following a written notice hereto by Pathosense;
• The Client has declared that it will not, or will no longer, fulfil its obligations under the General Terms and Conditions or the Agreement;
• The Client is declared bankrupt or files for bankruptcy, is placed under guardianship,  ceases or risks having to cease its activities, or otherwise has shown signs of insolvency or insufficient financial means;
• A Situation of Force Majeure invoked by the Client continues for a period of more than thirty (30) days. 

10.4. In case of early termination of the Agreement, for whatever reason, the Client shall immediately pay all outstanding invoices. In addition and where applicable, the Client shall fully reimburse Pathosense for all Services that have already been performed, as well as for all non-recoverable costs and expenses already incurred for Services still to be performed. 

10.5. Notwithstanding the termination of the Agreement, for whatever reason, the provisions of the Agreement intended to survive its termination shall remain in full force and effect after the termination.  The provisions surviving termination shall include, without being limited to Article 5 Liability, Article 7 Intellectual Property and Article 8 Confidentiality of these General Terms and Conditions.

11.1 Pathosense and the Client are independent contracting parties and no provision of these General Terms and Conditions or the Agreement can be interpreted as an agreement to constitute an undertaking, a joint venture or an association, or to make one party the agent or legal representative of the other party.  These General Terms and Conditions do not grant either party an authorisation to engage in any obligation in name or on behalf of the other party. 

11.2 Each party is solely responsible for carrying the costs and risks related to its activities, including, but not limited to paying social security expenses, taxes and insurance premiums.  The parties shall have no responsibility and/or authority towards the personnel or subcontractors of the other party.

12.1. No default or negligence by a party to enforce its rights under these General Terms and Conditions or the Agreement can be interpreted as a waiver by that party of its rights under these General Terms and Conditions or the Agreement.  Each waiver of rights must be explicit and in writing. 

12.2. In case any provision of these General Terms and Conditions or the Agreement, in whole or in part, is found to be invalid or unenforceable, this shall have no effect on the validity or enforceability of the other provisions of these General Terms and Conditions or the Agreement.  Both parties shall in such case replace the invalid or unenforceable provision(s) or the parts thereof, by (a) new provision(s) that corresponds as closely as possible to the original intention of the parties.

12.3. The Client shall not assign or delegate any of its rights or obligations under the Agreement to a third party without the prior written consent of Pathosense.  Unless explicitly stated otherwise in the Agreement, Pathosense shall, at its own discretion, have the right to assign, delegate or subcontract any of its rights or obligations under the Agreement.   Notwithstanding any assignment or delegation, the assigning or delegating party shall remain fully responsible towards the other party for the performance of its obligations under the Agreement.

12.4. The parties agree that any notice or information obligation under the Agreement that must be provided in writing, may be validly provided via email to the email address of the authorized representative of the other party, as indicated in the offer.

13.1. The Agreement between the parties, as well as these General Terms and Conditions, shall exclusively be governed by and interpreted in accordance with Belgian law.

13.2. Only the courts of Brussels shall have jurisdiction to rule on any dispute concerning the validity, the interpretation, the execution or the termination of these General Terms and Conditions or the Agreement. 

Version 1.0

Date 13th of November 2020