Background knowledge: All information, know-how, methods, techniques, technologies, skills, algorithms, methodologies, materials and intellectual property rights in the same or in related domains of the order, owned by and/or in possession of or controlled by Labotex prior to the commencement date of the order, as well as all developments, improvements and/or completions made by Labotex and/or introduced here outside of the scope of performance of the order.
Foreground knowledge: All knowledge, information, know-how, methods, techniques, skills, algorithms, materials and intellectual property developed by Labotex within the scope of performance of the order.
Results: the data and materials which, according to the stipulations of the agreement, are delivered to the customer at the end of the agreement, to the exclusion of any background knowledge.
Materials: all goods such as basic raw materials, additives, prototypes, tools or equipment which are transferred to the customer by way of result within the scope of the order. Certificates, reports, manuals, drawings, spreadsheets, … in relation to these goods are also
considered materials.
All works and services by Labotex are executed and/or rendered under the terms and conditions indicated below. Subject to any written deviation explicitly approved by Labotex, these terms and conditions take priority over any other contractual provision, including the
customer’s general terms of purchase.
The regulations for certification also apply to orders within the framework of Certification. These regulations can be found on the website of Labotex.
Specific conditions apply to orders within the framework of testing activities. These regulations can be found on the website of Labotex.
The certification and testing rules applicable on the date of Labotex’s order confirmation shall apply. Labotex may update such rules for future orders. In case of conflict, the specific certification/testing rules prevail solely for technical execution matters; these general terms prevail for liability, payment, IP, confidentiality and dispute resolution.
In case of conflict between these terms, the offer, the order confirmation, any purchase order, certification rules, testing rules or any other document, the following order of precedence shall apply: (i) specific written agreement signed by Labotex, (ii) Labotex’s offer/order confirmation, (iii) these general terms, (iv) applicable certification/testing rules, and (v) customer documents, only to the extent expressly accepted in writing by Labotex.
Labotex executes the customer’s order to the best of its knowledge and ability and with the meticulousness that may be expected of a professional service provider in similar circumstances, according to the rules, and bearing in mind the laws, standards, requirements
and regulations in force on the date of conclusion of the agreement. As for the intended results, Labotex enters into an obligation of means with the customer.
Labotex shall not be obliged to accept, commence, continue or complete any order, service, test, analysis, certification activity, report or other performance where, in Labotex’s reasonable opinion, such performance would conflict with applicable laws or regulations, accreditation requirements, professional standards, sanctions rules, export control rules, ethical obligations, public order, safety requirements or Labotex’s internal compliance policies.
In such case, Labotex may refuse the order, suspend performance or terminate the affected order or part thereof without liability, without prejudice to Labotex’s right to payment for all services, work, costs, materials and commitments already performed, incurred or committed.
The agreement with the customer shall not take effect until the order placed by the customer has been confirmed in writing by Labotex or until the performance of the contract is started. This order can be placed either in writing or verbally. Unless expressly stipulated otherwise, the prices are indicative.
Labotex may adjust prices to reflect increases in labour, energy, raw material, transport, subcontractor, regulatory or certification costs occurring after the offer date. Labotex shall notify the customer of such adjustment before execution where reasonably practicable. If the adjustment exceeds 15%, the customer may cancel the non-executed part of the order within five business days, without compensation, except for costs already incurred (see also art. 14).
The subscriber placing an order in his own name or in the capacity of mandatory, or the person paying in whole or in part for the order, even on behalf of third parties, warrants performance by these third parties and binds oneself jointly and severally for them, in accordance with articles 1120 et seq. of the Civil Code and articles 1200 et seq. of the Civil Code.
The customer undertakes to make all required information as well as all the necessary samples, prototypes, etc. available to Labotex in a timely manner to enable the latter to execute the order. Labotex cannot be held liable for incorrect or incomplete information provided by the customer or for any delay in the execution due to the fact that this information and/or those materials were made available too late.
Unless otherwise agreed between Labotex and the customer, the stated times of delivery are indicative. Labotex shall inform the customer without delay from the moment Labotex suspects or becomes aware that the performance will be significantly delayed and can therefore only be executed with a significant deviation from the indicated delivery time. A delay can never give rise to the termination of the order and/or to any claim for damages. In the event of a significant deviation from the indicated delivery time, Labotex and the customer will determine by mutual agreement any actions to be taken.
For the purposes of these terms and conditions, Confidential Information means all information, data, documents, materials, samples, results, reports, certificates, analyses, methods, know-how, processes, techniques, specifications, designs, drawings, software, algorithms, templates, business information, commercial information, technical information, financial information and any other information of whatever nature or form, whether oral, written, electronic, visual, physical or otherwise, disclosed by one party to the other party in connection with an order or agreement.
Confidential Information includes information disclosed before, during or after the
performance of an order, irrespective of whether such information is marked as confidential,
provided that its confidential nature is apparent from the context, the nature of the information
or the circumstances of disclosure.
Unless otherwise expressly agreed in writing:
a. all information, of whatever nature or form, disclosed or made available by Labotex to the customer, including Labotex’s Background Knowledge, Foreground Knowledge, methods, know-how, testing protocols, analytical techniques, laboratory processes, templates,
algorithms, interpretation frameworks, internal documents and proprietary materials, shall be deemed Confidential Information of Labotex;
b. all information, of whatever nature or form, disclosed or made available by the customer to Labotex in connection with the order shall be deemed Confidential Information of the customer;
c. the Results of the order shall be treated in accordance with Article 6 and shall not be disclosed or used except as expressly permitted under these terms or the relevant agreement.
Each party receiving Confidential Information shall:
a. keep such Confidential Information strictly confidential;
b. use such Confidential Information solely for the performance, receipt, verification or permitted use of the relevant order;
c. protect such Confidential Information with at least the same degree of care as it applies to its own confidential information of a similar nature, and in any event with no less than reasonable care;
d. not disclose such Confidential Information to any third party without the prior written consent of the disclosing party, except as expressly permitted under this article;
e. not copy, reproduce, store, process, analyse, modify or otherwise use such Confidential Information beyond what is reasonably necessary for the permitted purpose;
f. not use such Confidential Information to develop competing services, competing methods, competing products or competing technical processes.
The receiving party may disclose Confidential Information only to its directors, officers, employees, consultants, advisers, auditors, insurers, legal counsel, subcontractors, laboratories, certification bodies, accreditation bodies or other professional service providers,
provided that:
a. such disclosure is strictly necessary for the performance of the order, the permitted use of the Results, compliance, audit, accreditation, insurance, legal defence or professional advice;
b. the recipients have a need to know the information;
c. the recipients are bound by confidentiality obligations that are no less protective than those set out in this article, whether by contract, professional duty or law;
d. the receiving party remains responsible for any unauthorised disclosure or misuse by such recipients, except where disclosure is required by mandatory law or by a competent authority.
Labotex may disclose Confidential Information of the customer where such disclosure is required by applicable law, a court, a regulator, a supervisory authority, an accreditation body, a certification body, an inspection body, a professional standard, an audit obligation or any other authority competent over Labotex or the relevant services.
Where legally permitted and reasonably practicable, Labotex shall inform the customer of such disclosure requirement in advance and shall limit the disclosure to what is reasonably necessary.
Disclosure by Labotex under this article shall not constitute a breach of confidentiality.
Confidential Information does not include information to the extent the receiving party can demonstrate that such information:
a. was lawfully known to the receiving party before disclosure by the disclosing party;
b. is or becomes publicly available other than through a breach of these terms or any confidentiality obligation;
c. was lawfully received from a third party without breach of any confidentiality obligation;
d. was independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party;
e. is approved for disclosure by the disclosing party in writing.
The burden of proving that an exclusion applies rests with the party invoking the exclusion.
Each party shall implement and maintain appropriate physical, technical and organisational measures to protect Confidential Information against unauthorised access, loss, disclosure, alteration, destruction or misuse.
Such measures shall be proportionate to the nature of the Confidential Information, the risks involved and the role of the receiving party in the performance of the order.
Where Confidential Information is stored or processed electronically, the receiving party shall apply reasonable access controls, confidentiality restrictions and safeguards against unauthorised copying, extraction or dissemination.
The receiving party shall notify the disclosing party without undue delay after becoming aware of any unauthorised access, use, disclosure, loss or compromise of Confidential Information.
The notification shall, to the extent reasonably available, describe:
a. the nature of the incident;
b. the Confidential Information concerned;
c. the likely consequences;
d. the measures taken or proposed to contain, investigate and remedy the incident;
e. any reasonable cooperation required from the disclosing party.
Each party shall cooperate in good faith to mitigate the consequences of any confidentiality
breach.
Upon completion, expiry, cancellation or termination of the order, or upon written request of the disclosing party, the receiving party shall return or destroy the disclosing party’s.
Confidential Information, unless retention is required or justified under applicable law, accreditation obligations, professional standards, audit requirements, insurance obligations, internal compliance policies or legitimate evidentiary purposes.
Labotex may retain copies of customer Confidential Information, Results, records, working files, correspondence and related documentation to the extent necessary for legal, regulatory, accreditation, quality, insurance, defence, audit, evidence or internal compliance purposes.
Any retained Confidential Information shall remain subject to the confidentiality obligations set
out in this article.
The customer shall not use Labotex’s Confidential Information to reverse engineer, reconstruct, derive, imitate, benchmark, validate, replicate or otherwise analyse Labotex’s methods, processes, formulas, testing protocols, analytical techniques, laboratory processes,
templates, algorithms, workflows, models, interpretation frameworks, know-how or technical approach.
The customer shall not use Labotex’s Confidential Information for any purpose other than the agreed project purpose or the permitted use of the Results under Article 6.
Labotex may use knowledge, experience, findings, trends, learnings, methods, statistical insights and technical insights obtained in connection with an order in an anonymised, aggregated or otherwise non-customer-identifiable form for research, benchmarking, method development, validation, training, quality improvement, internal documentation, publications, service development and other professional purposes.
Such use shall not constitute a breach of confidentiality, provided that the customer, its
products, its materials and its Confidential Information cannot reasonably be identified.
The confidentiality obligations set out in this article shall apply during the performance of the order and for a period of five years after the date of the final invoice relating to the order. However, Confidential Information that qualifies as a trade secret, proprietary know-how, technical method, testing protocol, laboratory process, algorithm, template, interpretation framework or other non-public proprietary information of Labotex shall remain confidential for as long as such information remains non-public and commercially or technically sensitive.
Disclosure of Confidential Information shall not grant the receiving party any ownership right, licence, right of use or other right in or to such Confidential Information, except to the extent expressly permitted under these terms or a written agreement signed by Labotex.
All Confidential Information remains the property of the disclosing party or its licensors.
This article shall survive the completion, expiry, cancellation or termination of the order or of the agreement between Labotex and the customer.
The performance of an order by Labotex shall not, in any way or at any time, imply or result in the transfer, assignment or exclusive licensing of any intellectual property rights, know-how, methods, techniques, processes, data, models, templates, algorithms, materials, documentation or other proprietary rights of Labotex to the customer or to any third party.
All intellectual property rights, know-how and proprietary rights not expressly granted to the customer in writing shall remain fully reserved by Labotex.
All Background Knowledge shall remain the sole and exclusive property of Labotex.
All Foreground Knowledge, including any knowledge, information, know-how, methods, techniques, skills, algorithms, materials, intellectual property, improvements, developments, adaptations or completions developed, created, generated or introduced by Labotex within the scope of the performance of an order, shall also remain the sole and exclusive property of Labotex.
For the avoidance of doubt, this includes all methods, know-how, templates, testing protocols, analytical techniques, laboratory processes, algorithms, methodologies, interpretation frameworks, tools, procedures, improvements and developments used, created, improved or introduced by Labotex in connection with an order, irrespective of whether such elements existed prior to the order or were created, developed or improved during the performance of the order.
No order, quotation, report, certificate, deliverable, co-development activity, custom research and development project or other form of cooperation shall imply any transfer, assignment or exclusive licence of Labotex’s Background Knowledge, Foreground Knowledge or other proprietary rights, unless expressly agreed otherwise in a written agreement signed by Labotex.
Subject to timely and full payment of all amounts due for the relevant order, the customer acquires a limited right to use the Results delivered by Labotex solely for the specific purpose and application expressly determined in the agreement.
Unless otherwise expressly agreed in writing, Labotex grants the customer a free, non exclusive, non-transferable, non-sublicensable and revocable licence to use such Foreground Knowledge only to the extent strictly necessary to use the Results for the agreed purpose and application.
The customer shall not acquire any rights in or to Labotex’s Background Knowledge, Foreground Knowledge or other proprietary materials beyond the limited licence expressly granted under this article.
The customer shall use the Results, reports, certificates, analyses, conclusions, recommendations, deliverables and any related information provided by Labotex solely for the agreed project purpose and agreed application.
The customer shall not, without Labotex’s prior written consent:
a. use any Results, reports, certificates, analyses, conclusions, recommendations or deliverables outside the agreed project purpose or agreed application;
b. disclose, publish, reproduce, modify, commercialise, rely on or make available such Results, reports, certificates, analyses, conclusions, recommendations or deliverables to any third party;
c. use such Results, reports, certificates, analyses, conclusions, recommendations or deliverables for marketing, certification, regulatory, litigation, customer-facing or public communication purposes outside the agreed scope;
d. use any Labotex knowledge, methodology, process, test protocol, template, interpretation framework or technical approach to develop competing services, competing methods or competing products.
The customer shall not, directly or indirectly:
a. reverse engineer, decompile, disassemble, reconstruct, analyse or otherwise attempt to derive, replicate or imitate any method, process, formula, testing protocol, analytical technique, laboratory process, algorithm, model, template, workflow, know-how, interpretation framework or technical approach of Labotex;
b. create, develop, train, adapt, modify, commercialise or exploit any derivative works, adaptations, modifications, translations, compilations, models, datasets, procedures, tools, analyses, methods, products or services based on Labotex’s Background Knowledge,
Foreground Knowledge, Results, reports, methodologies, templates, laboratory processes or other proprietary materials;
c. sublicense, assign, transfer, pledge, sell, lease, lend, publish, disclose or otherwise make available any rights, Results, reports, certificates, data, deliverables or Labotex proprietary materials to any third party.
Unless expressly agreed otherwise in writing, all raw data, metadata, intermediate data, working documents, laboratory notes, laboratory notebooks, test logs, draft reports, internal calculations, protocols, models, interpretations, internal quality records, validation files and other underlying materials generated, collected, prepared or used by Labotex in the performance of an order shall remain the exclusive property of Labotex.
The customer shall only be entitled to receive the final Results or deliverables expressly agreed in the relevant quotation, order confirmation or written agreement.
Labotex shall have no obligation to disclose raw data, metadata, intermediate data, laboratory records, draft materials, internal calculations, validation files, underlying working files or internal quality records, except where mandatory law, applicable accreditation rules or an express written agreement require otherwise.
Labotex shall be entitled to use, reuse, analyse, develop, improve and exploit any knowledge, experience, techniques, findings, trends, learnings, methods, statistical insights and technical insights obtained in connection with an order, provided that such use does not disclose the customer’s confidential information in an identifiable form.
Labotex may use anonymised, aggregated or otherwise non-customer-identifiable data, knowledge and insights for research, benchmarking, method development, validation, training, quality improvement, internal documentation, publications, service development and other professional purposes.
Such use shall not be considered a breach of confidentiality or an infringement of the customer’s rights, provided that the customer, its products, its materials and its confidential information cannot reasonably be identified.
All samples, materials, specifications, documents, data, designs, instructions, models, test objects and other materials provided by or on behalf of the customer shall remain the property of the customer or its licensors. The customer warrants that it owns, controls or has obtained all rights, licences, consents and authorisations required for Labotex to receive, possess, store, handle, test, analyse, process,
reproduce, modify where necessary, document and otherwise use such customer materials for the performance of the order.
The customer grants Labotex a non-exclusive, royalty-free, worldwide licence to use, test, analyse, process, reproduce, store, handle and document the customer materials solely to the extent necessary for the performance of the order, for internal quality, accreditation and evidentiary purposes, and for compliance with applicable legal, regulatory or accreditation obligations.
The customer shall indemnify and hold Labotex harmless against any claim, damage, cost, liability, loss or expense arising from or relating to customer materials, including any alleged infringement of intellectual property rights, breach of third-party rights, unlawful use, incorrect labelling, hazardous nature, incomplete information, incorrect instructions or use of materials for which the customer did not have sufficient rights.
Except for the limited rights expressly granted to the customer under this article, no rights are granted to the customer by implication, estoppel, custom, course of dealing or otherwise. All rights not expressly granted to the customer are reserved by Labotex.
This article shall survive the completion, expiry, cancellation or termination of the order or of the agreement between Labotex and the customer.
Labotex has the right to make the results known and to publish them, except when the results contain confidential information of the customer.
Unless he has obtained the prior consent of Labotex, the customer is not allowed to use the name of Labotex, of its staff members and agents and/or the brands or the logo for external communication purposes, whether for commercial or any other purposes.
All taxes, duties and/or levies, of whatever nature, relating to the services rendered or the goods delivered and the transport thereof, are to be paid entirely by the customer.
Invoices must be paid no later than 30 days after the end of the month, in the currency mentioned on the invoice. Any invoice that is not paid in full within said period shall be increased, by operation of law and without prior notice of default, by 15% of the amount due, with a minimum of 100 Euros. The sum including the surcharge shall, by operation of law and without prior notice of default, bear interest at a rate of 1 % per month. Any started month shall be regarded as a complete month.
Upon delivery of any tests, analyses, reports, certificates, services, Results, Materials or other deliverables, the customer shall immediately inspect and verify whether such deliverables correspond to the order, the agreed scope and the applicable specifications expressly accepted by Labotex.
The customer shall perform such inspection with due care and without delay.
Any complaint relating to visible defects, apparent non-conformities, incomplete delivery, clerical errors or other defects that the customer could reasonably have detected upon normal inspection must be notified to Labotex in writing within eight (8) working days after delivery. The complaint must describe the alleged defect or non-conformity in sufficient detail and must include all relevant supporting information reasonably available to the customer.
Failing such timely and detailed notification, the relevant tests, analyses, reports, certificates, services, Results, Materials or deliverables shall be deemed irrevocably accepted by the customer in respect of all visible defects and apparent non-conformities.
Any complaint relating to hidden defects, methodological errors, analytical deficiencies or other non-conformities that could not reasonably have been detected upon normal inspection must be notified to Labotex in writing within thirty (30) calendar days after the customer discovered or should reasonably have discovered the alleged defect or non-conformity.
In any event, no complaint relating to hidden defects, methodological errors, analytical deficiencies or later-discovered non-conformities shall be admissible after the expiry of six (6) months following delivery of the relevant tests, analyses, reports, certificates, services, Results, Materials or deliverables.
Failing such timely and detailed notification, the customer shall be deemed to have accepted the relevant deliverables also in respect of such hidden defects, methodological errors, analytical deficiencies or later-discovered non-conformities.
Any complaint must be made in writing and must clearly identify:
a. the relevant order, report, certificate, test, analysis, service, Result, Material or deliverable;
b. the alleged defect, error or non-conformity;
c. the date of delivery and the date of discovery;
d. the factual basis of the complaint;
e. any documents, samples, data or other evidence on which the customer relies.
Labotex shall review the complaint in good faith and may request additional information, samples, documents or access reasonably required to assess the complaint.
The customer shall cooperate fully with Labotex’s review and shall not alter, destroy, use, dispose of or further process any relevant samples, Materials or deliverables where this could prejudice the assessment of the complaint.
If the parties disagree on whether a complaint is well-founded, they shall first consult in good faith with a view to resolving the matter.
Where appropriate, and provided that the nature of the complaint allows it, either party may propose that the relevant issue be assessed by an independent expert, laboratory or technical specialist agreed between the parties.
Unless otherwise agreed, the costs of such independent assessment shall be borne by the party whose position is not confirmed by the assessment. If the assessment confirms both parties only in part, the costs shall be shared in reasonable proportion.
The lodging of a complaint shall not suspend, defer or release the customer from any payment obligation.
The customer shall pay all invoices when due, including invoices relating to the disputed order, without set-off, deduction or withholding, unless Labotex has expressly agreed otherwise in writing.
If a complaint is found to be well-founded by Labotex or, in case of disagreement, by an agreed independent assessment, Labotex shall, at its own discretion and as the customer’s sole and exclusive remedy:
a. reperform the relevant test, analysis or service;
b. correct or replace the relevant report, certificate, Result, Material or deliverable; or
c. refund the price paid for the specific defective part of the order.
The customer shall not be entitled to any other remedy, compensation, damages, penalty, cost reimbursement or price reduction, except to the extent mandatory law provides otherwise.
Labotex shall not be liable, and no complaint shall be admissible, to the extent the alleged defect, error or non-conformity results from:
a. incorrect, incomplete, misleading or late information provided by the customer;
b. non-representative, contaminated, altered, incorrectly labelled, unsafe or unsuitable samples or Materials;
c. instructions, specifications, methods or requirements imposed by the customer;
d. use of the Results, reports, certificates or deliverables outside the agreed purpose or application;
e. changes made by the customer or a third party after delivery;
f. normal scientific, technical or measurement tolerances;
g. developments in laws, standards, methods, technical knowledge or regulatory interpretation after the date of performance, unless expressly agreed otherwise in writing.
The acceptance of a complaint, the reperformance of a test or analysis, the correction of a report or certificate, or any other remedial action by Labotex shall not constitute an admission of liability and shall not affect the limitations of liability, exclusions, payment obligations, intellectual property provisions or other protections set out in these terms and conditions.
In the event of non-payment by the customer or if the latter fails to fulfil his obligations, Labotex shall have the right to terminate the contract with immediate effect by sending a simple written notification eight (8) days following a notice of default that was ignored, without prejudice to Labotex’s right to demand reimbursement of all costs incurred and compensation for any losses suffered.
If the customer wishes to cancel or terminate an order, in whole or in part, the customer must notify Labotex in writing.
Such cancellation or termination shall only take effect after written acceptance by Labotex, without prejudice to Labotex’s right to invoice all amounts due under this article.
If Labotex accepts the cancellation or termination before the performance of the order has commenced, the customer shall pay:
a. all costs already incurred or committed by Labotex in connection with the order, including costs for administration, planning, preparation, purchased materials, reserved equipment, subcontractors and allocated personnel; and
b. a cancellation fee equal to 15% of the total order value, excluding VAT.
If Labotex accepts the cancellation or termination after performance of the order has commenced, the customer shall pay:
a. the price of all services, tests, analyses, work, deliverables, Materials and Results already performed, prepared or delivered;
b. all costs already incurred or committed by Labotex in connection with the order, including costs for purchased materials, third-party services, subcontractors, reserved laboratory capacity, equipment, logistics, storage and allocated personnel; and
c. a cancellation fee equal to 25% of the remaining non-performed part of the total order value, excluding VAT.
For orders involving custom research and development, tailor-made testing, certification work, reserved laboratory capacity, long-lead materials, customer-specific preparation, nonstandard methods, bespoke deliverables or subcontracted work, the customer shall in any
event pay:
a. all services, work and costs already performed, incurred or committed by Labotex;
b. all non-cancellable third-party costs and material costs;
c. all costs relating to reserved capacity, preparation, validation, accreditation-related work or project-specific set-up; and
d. a minimum cancellation fee equal to 25% of the total order value, excluding VAT, unless Labotex determines that a lower amount sufficiently compensates its loss, cost exposure and reserved capacity.
The amounts set out in this article are without prejudice to Labotex’s right to claim a higher amount if Labotex proves that its actual loss, costs, committed expenses, loss of capacity, loss of profit or other damage exceed the compensation payable under this article.
Cancellation or termination by the customer shall not release the customer from any payment obligation that arose before the effective date of cancellation or termination. All invoices issued by Labotex shall remain payable on their due date, without set-off, deduction, withholding or suspension.
Upon cancellation or termination, Labotex may, at the customer’s cost and risk, return, store or destroy any customer samples, materials or other items, unless mandatory law, accreditation rules, professional standards or legitimate evidentiary reasons require Labotex to retain them.
Cancellation or termination by the customer shall not affect any provisions that by their nature are intended to survive, including provisions relating to payment, confidentiality, intellectual property, use restrictions, liability, indemnities, dispute resolution and applicable law.
Labotex shall not be liable for indirect, consequential, special or punitive damages, including loss of profit, loss of production, loss of business, loss of data, reputational damage, recall costs or third-party penalties.
Labotex’s aggregate liability shall in all cases be limited to the amount effectively paid by the customer for the specific order giving rise to the claim, excluding VAT, with an absolute cap of 500,00EUR. Nothing in these terms limits liability for wilful misconduct, fraud or any liability which cannot be excluded under mandatory law.
Samples provided will be returned only upon prior written request from the customer. Potential risks of the samples must be notified in writing by the customer.
(Raw) materials that need to be processed during the performance of the order must be accompanied by the MSDS sheet.
The customer shall indemnify and hold Labotex harmless against any claim, damage, cost or liability arising from customer-supplied information, samples, materials, instructions, unlawful use of results, use outside the agreed scope, or disclosure of Labotex reports or certificates to third parties.
The customer shall be solely responsible for the accuracy, completeness, representativeness, legality, safety, labelling, packaging and suitability of all samples, raw materials, substances, prototypes, products, documents, specifications, data and other materials provided to Labotex in connection with an order.
The customer warrants that all samples and materials provided to Labotex are representative of
the products, substances, batches or materials to which the order relates, unless expressly stated otherwise in writing before the order is accepted by Labotex.
Labotex shall be entitled to refuse, suspend or discontinue the handling, storage, testing, analysis, processing or return of any sample or material where, in Labotex’s reasonable opinion:
a. the sample or material is unsafe, hazardous, unstable, contaminated, illegal, incorrectly labelled, insufficiently documented or unsuitable for the requested work;
b. the customer has failed to provide complete and accurate information, warnings, safety data, MSDS/SDS documentation, handling instructions or regulatory information;
c. the sample or material may expose Labotex, its personnel, equipment, premises, subcontractors or third parties to health, safety, environmental, legal, operational or accreditation risks;
d. handling or processing the sample or material would conflict with applicable law, professional standards, accreditation requirements or Labotex’s internal safety procedures.
Any refusal, suspension or discontinuation under this article shall not constitute a breach by Labotex and shall not release the customer from its payment obligations for work already performed, costs already incurred or resources already reserved.
The customer shall notify Labotex in writing, before delivery of any sample or material, of all known, suspected or reasonably foreseeable risks associated with such sample or material, including chemical, biological, toxic, flammable, explosive, corrosive, radioactive, infectious, environmental or other hazardous properties.
All raw materials, substances or materials that may require specific handling, storage, transport, testing, processing or disposal measures must be accompanied by a complete, accurate and up-to-date Material Safety Data Sheet or Safety Data Sheet, as applicable, and by all other relevant safety, regulatory and technical documentation.
The customer shall ensure that all samples and materials are properly packaged, labelled, transported and documented in accordance with applicable laws, regulations, safety standards and Labotex’s instructions.
The customer shall be fully liable for any incorrect, incomplete, outdated, misleading or missing MSDS/SDS, warning, label, safety instruction, regulatory classification, technical information or other information relating to the samples or materials.
The customer shall indemnify and hold Labotex harmless against any claim, damage, loss, cost, liability, fine, penalty, injury, contamination, clean-up cost, equipment damage, operational disruption or third-party claim arising from or relating to:
a. incorrect, incomplete, outdated, misleading or missing MSDS/SDS documentation;
b. missing, insufficient or incorrect safety warnings;
c. incorrect classification, packaging, labelling or transport information;
d. hazardous, unstable, contaminated, illegal or unsafe samples or materials;
e. any failure by the customer to disclose risks associated with the samples or materials.
Samples and materials shall only be returned to the customer if the customer has requested such return in writing before or at the time of delivery of the samples or materials to Labotex, and provided that Labotex considers return technically, legally and safely possible.
Unless otherwise expressly agreed in writing, Labotex may retain samples and materials for a reasonable period after completion of the order for quality, verification, accreditation, evidentiary or internal control purposes.
After expiry of the applicable retention period, Labotex may, without further notice, destroy, dispose of, neutralise or otherwise process the samples and materials, taking into account applicable safety, environmental, legal and accreditation requirements.
Labotex may refuse to return samples or materials where return would be unsafe, unlawful, technically impracticable, disproportionately burdensome or contrary to applicable law, accreditation requirements or internal safety procedures.
All costs relating to the packaging, transport, storage, handling, return, destruction, disposal, neutralisation, decontamination, safety measures or special processing of samples and materials shall be borne exclusively by the customer.
Labotex may invoice such costs separately, including costs charged by third parties, subcontractors, specialised waste handlers, transporters, laboratories, safety consultants or competent authorities.
Labotex may require advance payment or security before returning, storing, destroying, disposing of or otherwise handling samples or materials that require special measures.
The customer shall be liable for all damage, loss, injury, contamination, operational disruption, equipment damage, environmental impact, third-party claims and regulatory consequences caused by or relating to samples or materials provided by or on behalf of the customer, except to the extent caused by Labotex’s wilful misconduct.
This includes damage to Labotex’s personnel, premises, equipment, instruments, subcontractors, laboratories, storage facilities and other customers’ samples or materials.
Labotex shall not be liable for any loss, degradation, alteration, destruction, contamination or unavailability of samples or materials, except to the extent caused by Labotex’s wilful misconduct or by liability that cannot be excluded under mandatory law.
Labotex shall in no event be liable for indirect, consequential, special or punitive damages, including loss of profit, loss of production, loss of business, loss of opportunity, recall costs, third-party penalties, reputational damage or loss of data.
Any liability of Labotex in relation to samples, materials, safety or handling shall be subject to the liability limitations and exclusions set out in these terms and conditions.
The customer shall comply with all applicable laws, regulations, transport rules, safety rules, environmental rules, product regulations, chemical regulations and waste rules relating to the samples or materials.
The customer shall promptly provide any additional information, documentation, authorisation, permit or instruction reasonably requested by Labotex in relation to the safe and lawful handling, testing, analysis, storage, return or destruction of the samples or materials.
The customer’s obligations under this article, including payment, liability and indemnification obligations, shall survive completion, cancellation, expiry or termination of the order.
Labotex undertakes to carry out each order with the utmost care and in accordance with the applicable rules, with due confidentiality and bearing in mind the state of the art and knowledge. However, this does not imply any obligation of result. Labotex will make every
possible effort to meet the agreed deadline for performance. Any delay on the part of Labotex can never give rise to payment of damages or to the dissolution of the contract.
Labotex shall not be liable for any failure or delay in the performance of its obligations to the extent such failure or delay is caused by an event or circumstance beyond Labotex’s reasonable control which makes performance of the relevant obligation impossible, either
temporarily or permanently.
Force majeure may include, without limitation: natural disasters, fire, flood, explosion, war, terrorism, riots, civil unrest, epidemic or pandemic events, governmental measures, export or import restrictions, sanctions, power outages, cyber incidents not attributable to Labotex, strikes or labour disputes, failure of utilities, transport disruptions, accidents, destruction or unavailability of essential equipment, and any other event that makes performance impossible and is beyond Labotex’s reasonable control.
In the event of force majeure, Labotex’s affected obligations shall be suspended for the duration of the force majeure event and for such additional period as is reasonably necessary to resume performance.
Labotex shall not be liable for any damages, penalties, costs, losses, delay damages or other compensation arising from or relating to such suspension, delay or non-performance.
Labotex shall use reasonable efforts to mitigate the effects of the force majeure event, taking into account the nature of the order, the available resources, applicable safety requirements, accreditation obligations and the technical feasibility of alternative performance.
Labotex shall inform the customer within a reasonable period after becoming aware of a force majeure event that materially affects the performance of an order.
Such notification shall, where reasonably practicable, indicate the nature of the event, the affected obligations and the expected impact on performance.
Failure to notify immediately shall not deprive Labotex of the right to rely on force majeure, except to the extent the customer proves that it suffered additional damage solely as a direct result of such late notification.
If a force majeure event continues for more than two (2) months and materially prevents the performance of the relevant order, either party may terminate the affected part of the order by written notice, without court intervention and without either party being liable for damages or compensation as a result of such termination.
Termination shall not affect:
a. the customer’s obligation to pay for services, tests, analyses, work, Materials, Results or deliverables already performed, prepared, purchased, committed or delivered by Labotex;
b. Labotex’s right to reimbursement of costs already incurred or irrevocably committed;
c. any provisions intended to survive termination, including payment, confidentiality, intellectual property, liability, indemnities, dispute resolution and applicable law.
Where circumstances arise after the conclusion of the agreement which do not make performance impossible, but which render Labotex’s performance excessively onerous, economically unreasonable or materially more burdensome than could reasonably have been anticipated at the time of conclusion of the agreement, Labotex may invoke hardship or imprevision.
Hardship may include, without limitation:
a. substantial increases in the cost of labour, energy, raw materials, chemicals, consumables, equipment, transport, insurance, subcontractors or accreditation-related requirements;
b. shortages or scarcity of materials, reagents, components, laboratory capacity, equipment, qualified personnel or external expertise;
c. significant changes in applicable laws, standards, certification requirements, accreditation rules, technical methods, regulatory interpretation or customer-imposed requirements;
d. substantial exchange rate fluctuations, import or export restrictions, customs delays, supply chain disruption or market disruption;
e. any other circumstance beyond Labotex’s reasonable control that materially alters the economic, technical or operational balance of the order.
In the event of hardship, Labotex may, acting reasonably:
a. propose an adjustment of the price, timing, scope, method of performance, delivery schedule or other contractual conditions;
b. suspend performance pending agreement on such adjustment where continued performance would be unreasonable or would expose Labotex to disproportionate cost, operational burden, compliance risk or technical risk;
c. terminate the affected order or part of the order if no reasonable agreement is reached within fifteen (15) working days after Labotex’s notification of the hardship event.
Any adjustment or termination under this article shall be without prejudice to Labotex’s right to payment for all services, tests, analyses, work, Materials, Results, costs and commitments already performed, prepared, incurred or committed.
The customer acknowledges that Labotex’s performance may depend on the timely availability and proper functioning of laboratory materials, reagents, samples, consumables, equipment, machines, software, utilities, transport services, subcontractors, external laboratories, certification bodies, accreditation bodies, inspection bodies, authorities and other third parties.
Any delay, unavailability, defect, breakdown, shortage, late delivery, non-performance or changed requirement affecting such materials, equipment, systems, subcontractors, bodies, authorities or third parties shall entitle Labotex, without liability, to:
a. extend the delivery or performance period for a reasonable period;
b. adjust the planning, testing sequence, method of performance or delivery schedule;
c. source alternative materials, subcontractors, laboratories, equipment or services, with any additional costs being charged to the customer where such costs are reasonable and necessary for the performance of the order;
d. suspend performance where continuation is not technically, operationally, safely, legally or economically reasonable;
e. terminate the affected order or part of the order where the delay, unavailability, defect, shortage or changed requirement materially prevents or undermines performance.
Unless expressly agreed otherwise in writing, any delivery or performance periods communicated by Labotex are indicative and non-binding.
Delays caused by force majeure, hardship, supply chain disruption, operational dependencies, customer instructions, customer materials, missing information, unsafe samples, third-party delays, accreditation requirements or changed legal or technical requirements shall not give rise to termination by the customer, damages, penalties, price reductions, withholding of payment or any other compensation, except where mandatory law provides otherwise.
The customer shall cooperate in good faith with Labotex to mitigate the consequences of force majeure, hardship or supply chain delay.
This includes, where relevant, promptly providing alternative samples, missing information, approvals, technical clarifications, amended instructions or other input reasonably required to allow Labotex to continue or adapt performance.
Any continued performance, partial performance, mitigation measure, alternative sourcing, amended timing, adjusted method or other action taken by Labotex in response to force majeure, hardship or supply chain delay shall not constitute a waiver of Labotex’s rights under this article or under any other provision of these terms and conditions.
Any dispute relating to the conclusion, validity, interpretation, performance, non-performance, termination or consequences of termination of any contract, order, offer, service, test, analysis, certification activity, report, Result, Material or other deliverable between Labotex and the customer shall be governed exclusively by Belgian law, excluding its conflict-of-law rules to the extent these would lead to the application of another law.
In the event of a technical dispute relating to the performance of a test, analysis, certification activity, report, Result, Material, method, interpretation, defect, non-conformity or technical conclusion, the parties shall first attempt in good faith to resolve the dispute through technical escalation.
Each party shall appoint a competent technical representative with sufficient knowledge of the disputed matter. These representatives shall consult within a reasonable period after written notification of the dispute.
Where appropriate, the parties may agree to refer the technical issue to an independent expert, laboratory or technical specialist. Unless otherwise agreed, the expert’s costs shall be borne by the party whose position is not confirmed, or shared proportionally if both parties are confirmed only in part.
This technical escalation shall not prevent Labotex from taking urgent measures, suspending performance where permitted under these terms, preserving evidence, protecting its rights or initiating proceedings for unpaid invoices.
Unless mandatory procedural rules provide otherwise, the language of any judicial, expert, mediation or technical dispute resolution proceedings shall be Dutch, unless Labotex agrees in writing to another language.
Documents originally drafted in English or another language may be submitted in that language unless the competent court, authority or expert requires a translation.
Subject to Article 15.5 and Article 15.6, the courts of the judicial district where Labotex has its registered office shall have exclusive jurisdiction over any dispute relating to the contract, order, offer, service, test, analysis, certification activity, report, Result, Material or any other deliverable.
Notwithstanding Article 15.4, Labotex may bring proceedings before any other competent court or authority where this is necessary or useful to obtain interim, protective, urgent, conservatory or enforcement measures, including injunctions, seizure measures, evidence preservation, debt recovery measures or measures relating to confidentiality, intellectual property, safety, samples, Materials or misuse of reports or certificates.
The initiation of such proceedings shall not constitute a waiver of the jurisdiction clause set out in Article 15.4.
Labotex may recover undisputed, due and payable invoices through any legally available debt recovery procedure, including summary proceedings, order for payment proceedings, statutory collection procedures, enforcement proceedings or any other competent judicial or administrative procedure.
The customer shall bear all costs, interest, collection charges, legal fees and enforcement costs relating to the recovery of unpaid invoices, to the extent permitted by applicable law and without prejudice to any contractual compensation, interest or surcharge provided in these terms.
The existence of a dispute, including a technical dispute, complaint, escalation, expert review, mediation or court proceeding, shall not entitle the customer to suspend, defer, set off, withhold or reduce any payment due to Labotex, unless Labotex expressly agrees otherwise in writing or mandatory law provides otherwise.
This article shall survive the completion, expiry, cancellation or termination of the order or agreement between Labotex and the customer.
The Data Processing Agreement attached as Annex 1 to these general terms and conditions forms an integral part of these general terms and conditions and of any agreement, order, quotation or service performed by Labotex to which these general terms and conditions apply.
To the extent Labotex processes personal data on behalf of the customer, the Data Processing Agreement shall apply in addition to these general terms and conditions. In the event of a conflict between the Data Processing Agreement and these general terms and conditions, the Data Processing Agreement shall prevail solely with respect to the processing of personal data.
For all other matters, including payment, intellectual property, confidentiality, liability, termination, applicable law and jurisdiction, these general terms and conditions shall remain fully applicable.
To the extent Labotex processes personal data on behalf of the customer in the performance of an order, the customer shall act as controller and Labotex shall act as processor within the meaning of Regulation (EU) 2016/679, the General Data Protection Regulation.
To the extent Labotex processes personal data for its own legal, administrative, accounting, quality, accreditation, insurance, evidentiary, compliance or defence purposes, Labotex shall act as an independent controller.
This Data Processing Agreement applies only to processing activities carried out by Labotex as processor on behalf of the customer.
The subject matter of the processing is the performance of the order, including testing, analysis, certification, reporting, communication, customer support, quality control and related services.
The processing shall last for the duration of the order and for any additional period during which Labotex is required or entitled to retain personal data under applicable law, accreditation obligations, professional standards, audit requirements, insurance obligations or legitimate evidentiary purposes.
The nature and purpose of the processing consist of receiving, storing, accessing, using, analysing, recording, documenting, communicating, reporting, archiving and, where necessary, deleting personal data to perform the order and related obligations.
The personal data processed may include:
a. identification and contact details of customer representatives, employees, agents, consultants and other contact persons;
b. professional details, such as function, employer, department, business address, business email and business phone number;
c. information included in samples, documents, forms, specifications, reports, certificates, correspondence or instructions provided by or on behalf of the customer;
d. technical, operational or administrative data necessary to perform, document or evidence the order.
The categories of data subjects may include customer personnel, representatives, agents, consultants, suppliers, end customers and other persons whose data are provided to Labotex by or on behalf of the customer.
The customer shall not provide special categories of personal data, criminal data or unnecessary personal data to Labotex unless expressly agreed in writing and strictly necessary for the order.
Labotex shall process personal data only on documented instructions of the customer, including these terms, the relevant order, the customer’s written instructions and any agreed specifications.
Labotex may refuse or suspend an instruction that, in Labotex’s reasonable opinion, infringes applicable data protection law, professional standards, accreditation requirements or Labotex’s legal obligations.
If Labotex believes that an instruction infringes applicable data protection law, it shall inform the customer, unless prohibited by law.
The customer warrants that:
a. it has a valid legal basis for the processing of personal data provided to Labotex;
b. it has informed the relevant data subjects where required;
c. the personal data provided to Labotex are adequate, relevant, accurate and limited to what is necessary;
d. it shall not provide unnecessary, excessive, sensitive or unlawful personal data to Labotex;
e. its instructions to Labotex comply with applicable data protection law.
The customer shall indemnify Labotex against claims, damages, fines, costs and expenses arising from unlawful, incorrect, excessive or unnecessary personal data provided by or on behalf of the customer, or from unlawful instructions given by the customer.
Labotex shall ensure that persons authorised to process personal data are subject to appropriate confidentiality obligations, whether contractual, statutory or professional.
Labotex shall implement appropriate technical and organisational measures to protect personal data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access.
Such measures shall be proportionate to the nature of the personal data, the processing risks, the state of the art, implementation costs and the nature of Labotex’s services.
Labotex may adapt its security measures from time to time, provided that the overall level of protection is not materially reduced.
The customer grants Labotex general authorisation to engage sub-processors where reasonably necessary for the performance of the order, including IT providers, hosting providers, software providers, laboratories, certification bodies, accreditation-related service
providers, professional advisers and administrative service providers.
Labotex shall ensure that sub-processors processing personal data on behalf of the customer are bound by data protection obligations that are materially equivalent to those set out in this Data Processing Agreement.
Labotex shall remain responsible for the performance of its sub-processors to the extent required by applicable data protection law.
Upon written request, Labotex shall provide the customer with relevant information on the categories of sub-processors used. The customer may object to a new sub-processor on reasonable data protection grounds. If the objection cannot reasonably be resolved, Labotex may terminate the affected order without liability.
Taking into account the nature of the processing and the information available to Labotex,
Labotex shall provide reasonable assistance to the customer in relation to:
a. requests from data subjects;
b. security obligations;
c. personal data breach assessments and notifications;
d. data protection impact assessments;
e. prior consultation with supervisory authorities, where applicable.
Labotex may charge the customer for assistance that goes beyond ordinary performance of the order, unless the assistance is required due to Labotex’s breach of this Data Processing Agreement.
Labotex shall notify the customer without undue delay after becoming aware of a personal data breach affecting personal data processed by Labotex as processor on behalf of the customer.
The notification shall, where reasonably available, describe the nature of the breach, the categories of data and data subjects concerned, the likely consequences and the measures taken or proposed to address the breach.
The customer shall remain responsible for any notification to data subjects or supervisory authorities, unless mandatory law provides otherwise.
Labotex shall not transfer personal data processed on behalf of the customer outside the European Economic Area unless an appropriate transfer mechanism is in place under applicable data protection law, such as an adequacy decision, standard contractual clauses or
another lawful mechanism.
The European Commission has adopted standard contractual clauses for controller-processor arrangements and separate clauses for international transfers; those mechanisms may be used where required.
Upon reasonable written request, Labotex shall make available information reasonably necessary to demonstrate compliance with this Data Processing Agreement.
Any audit shall be limited to what is strictly necessary, shall not disrupt Labotex’s operations, shall respect confidentiality, security, trade secrets, third-party rights and accreditation obligations, and shall be conducted no more than once per calendar year, unless a material personal data breach reasonably justifies an additional audit.
Labotex may satisfy an audit request by providing certificates, policies, summaries, audit reports or other appropriate documentation.
Upon completion, expiry or termination of the order, Labotex shall delete or return personal data processed on behalf of the customer, at the customer’s choice, unless Labotex is required or entitled to retain such data under applicable law, accreditation obligations, professional standards, audit requirements, insurance obligations or legitimate evidentiary purposes.
Any retained personal data shall remain protected in accordance with this Data Processing Agreement.
Any liability of Labotex under or in connection with this Data Processing Agreement shall be subject to the liability limitations, exclusions and caps set out in the agreement or in Labotex’s general terms and conditions, except to the extent such limitation is prohibited by mandatory law.
The customer remains responsible for the lawfulness of the personal data, the legal basis for processing, the transparency towards data subjects and the accuracy, relevance and necessity of the personal data provided to Labotex.
In case of conflict between this Data Processing Agreement and any other provision of the agreement, this Data Processing Agreement shall prevail solely with respect to the processing of personal data by Labotex as processor on behalf of the customer.
For all other matters, including payment, intellectual property, confidentiality, liability, termination, applicable law and jurisdiction, the other provisions of the agreement and Labotex’s general terms and conditions shall continue to apply.