Article 1 General
- These General Terms and Conditions of Provision of Services shall apply to all contracts entered into by Octrooibureau Novopatent in the context of execution of work for any third party ("Client"), and to all legal relations between Octrooibureau Novopatent and the Client deriving from this.
- All quotations and offers by Octrooibureau Novopatent shall be non-binding and shall be considered invitations for placement of orders, unless otherwise agreed in writing or provided to the contrary in these General Terms and Conditions.
- The applicability of terms and conditions of the Client is hereby expressly precluded.
- In case of deviation from these General Terms and Conditions, such deviations shall be agreed in writing. Provisions of these General Terms and Conditions from which no deviation has been made shall remain in full force.
- The General Conditions also apply to any additional or follow-up assignments.
Article 2 Execution of order, information and instructions
- Octrooibureau Novopatent shall execute the placed order to the best of its ability and with due diligence. In performing its activities, Octrooibureau Novopatent shall exercise the care of a good contractor.
- Octrooibureau Novopatent shall execute the order based on the information provided by the Client. To enable Octrooibureau Novopatent to execute the order, the Client is bound to provide Octrooibureau Novopatent with full, detailed and clear written information on the order. This shall include information known to the Client in connection with past inquiries and publications relating the subject of the order, or a similar subject. If the Client furnishes inaccurate and/or incomplete data, even in good faith, Octrooibureau Novopatent shall be entitled to rescind the contract.
- In executing the order, Octrooibureau Novopatent shall rely (in whole or in part) on the Client's instructions. The Client shall pass all instructions to Octrooibureau Novopatent clearly and in writing. If, in a given case, Octrooibureau Novopatent is unable to wait for the Client's instructions, Octrooibureau Novopatent may act as it deems fit to safeguard the Client's rights. If through a lack of information or instructions from the Client non-observance of a time limit is imminent, Octrooibureau Novopatent shall, if possible, request an extension of such time limit. For such work, fees and disbursements shall be charged to the Client, in the manner as provided for in Article 5.
- In case of an order for search, due to limitations (of the agreed scope of the search) or possible inaccuracies in classifications, indices, computer databases and official registers, Octrooibureau Novopatent cannot guarantee the completeness and accuracy of the results.
- An order, including the necessary information and instructions to carry out the order, received on a working day after 16.00 CET, will be commenced by Octrooibureau Novopatent on the subsequent working day.
- If, despite Octrooibureau Novopatent request to do so, the Client does not give the Octrooibureau Novopatent necessary instructions to carry out the order, or does not supply them promptly, or does not promptly ensure a payment, necessary for this purpose, to Octrooibureau Novopatent, Octrooibureau Novopatent may unilaterally terminate the order.
- The Client is bound promptly to notify Octrooibureau Novopatent, clearly and in writing, of any changes in its address and other details impinging on its accessibility. If Octrooibureau Novopatent is unable to contact the Client because the Client has not given Octrooibureau Novopatent this information as described, Octrooibureau Novopatent may unilaterally terminate the order.
Article 3 Confidentiality
- Octrooibureau Novopatent shall observe total confidentiality concerning any communication of a confidential nature made to Octrooibureau Novopatent in the context of fulfillment of an order.
- In performing its work, Octrooibureau Novopatent also communicates by electronic means. It cannot wholly be excluded that errors may occur in this mode of communication, or that the content of communications passed in this way may become known to third parties. Octrooibureau Novopatent shall not be liable for any loss resulting from this mode of communication. The Client may request Octrooibureau Novopatent not to communicate with it in this way.
Article 4 Third-party services
- By entering into a contract with Octrooibureau Novopatent, the Client shall grant Octrooibureau Novopatent power of attorney to involve third parties if Octrooibureau Novopatent considers this desirable for the proper performance of the order placed with it. Such third parties shall include experts in the field of search to be carried out. In involving such third parties, Octrooibureau Novopatent shall act as the Client's attorney. Such power shall specifically include authority to accept general terms and conditions of third parties on behalf of the Client.
- Octrooibureau Novopatent shall pass the costs of services performed by third parties on to the Client. In this regard, Octrooibureau Novopatent shall act purely as a payment address. Octrooibureau Novopatent shall pay on to third parties the portion of the amounts declared by Octrooibureau Novopatent which is due to them. Unless the Client and Octrooibureau Novopatent have expressly agreed otherwise in writing, payments to a third party, necessary for the order, shall only be carried out by Octrooibureau Novopatent, after the sum has been paid by the Client into Octrooibureau Novopatent's bank account. In the event of payments to a third party residing outside of the Netherlands, the sum has to be paid by the Client into Octrooibureau Novopatent's bank account not later than one week before payment is due.
- When involving third parties on behalf of the Client, Octrooibureau Novopatent shall always use due diligence and attention. Octrooibureau Novopatent shall not be liable for loss deriving from failures of third parties, save culpable failure by Octrooibureau Novopatent in the context of its involvement of such third parties. This shall not prejudice the effectiveness of Article 9 of these General Terms and Conditions.
Article 5 Fee and expenses
- Octrooibureau Novopatent's fee shall be based on Octrooibureau Novopatent's standard tariffs, regardless of the result of the work done. In addition to its fee, Octrooibureau Novopatent shall charge the Client the expenses which are not included in the Octrooibureau Novopatent tariffs. Such expenses shall include those of third parties involved, or to be involved, by Octrooibureau Novopatent. Octrooibureau Novopatent may add to the latter expenses its own administrative fee, as may be reasonable, having regard to all circumstances. In case of an urgent assignment, an increase of the regular fee will be applied. All that Octrooibureau Novopatent is owed must be paid in Euro.
- Cost estimates supplied by Octrooibureau Novopatent to the Client shall serve purely as a non-binding guide, unless expressly stated otherwise in writing.
- Octrooibureau Novopatent shall be entitled to add any price rises in its expenses to the amount payable by the Client. If this happens within three months of entering into the contract, the Client shall be entitled to cancel the contract, subject to settlement of the expenses made by Octrooibureau Novopatent pursuant to the contract. Any fluctuations in foreign exchange rates shall also be treated as price rises in expenses, but shall not entitle the Client to cancel the contract.
- Octrooibureau Novopatent shall charge its fee, plus any expenses not included in its tariffs, to the Client by advance, interim and/or final invoices. Octrooibureau Novopatent shall be free to choose whether to issue advance, interim and/or final invoices.
- All invoices shall be paid to Octrooibureau Novopatent, without discount or set-off, within 21 days of the date of sending. Surplus amounts paid shall be refunded to the Client on completion of the activities. If one or more advance invoices are sent, Octrooibureau Novopatent shall only start to execute the order when they have been settled in full. An invoice is considered approved if no written and soundly motivated objection is made thereto within 14 calendar days after receipt.
- The term of payment of debit notes sent by Octrooibureau Novopatent ends 21 days counted from the day mentioned in in the debit note. If within this period the full amount of the debit note is not paid off fully, then Client is legally in default, and therefore automatically the lawful monthly interest is due. If also thereafter full payment fails to occur, then the non legal expenses amounting to 15% of the amount of the debit note with a minimum of Euro 250 will be due. Under circumstances thereafter also the legal expenses and extra costs will be recoverable.
- Each invoice shall be treated as a separate claim of Octrooibureau Novopatent against the Client.
- In case of several Clients each will be jointly and severally liable for what Octrooibureau Novopatent is owed. If at the Client’s request invoices for activities performed by Octrooibureau Novopatent are put in the name of any party other than the Client, apart from the party in whose name the invoice is put, the Client shall remain jointly and severally liable.
Article 6 Non-payment
- If the Client fails to pay promptly, the Client shall owe the statutory commercial interest as per Civil Code Article 6:119a, without the need for warning or service of default notice. In addition, the Client shall owe all costs reasonably incurred by Octrooibureau Novopatent in ascertaining loss and liability, and in obtaining satisfaction by extra-judicial means. The latter costs shall be reckoned at the rate of the Netherlands Bar Association. In case of late payment, Octrooibureau Novopatent shall be entitled to suspend its work for the Client, with immediate effect.
Article 7 Force majeure
- For the present purpose, force majeure shall mean any failure of performance not attributable to fault by, or for the account of, Octrooibureau Novopatent. Force majeure shall in any case exist on Octrooibureau Novopatent's side if, after entering into the contract, it is prevented from fulfilling its obligations under the contract due to illness or other prevention of an Octrooibureau Novopatent employee. Provision of inaccurate data by the Client or failure by the Client to afford sufficient co-operation shall, in any case, constitute force majeure.
- In case of prevention of performance of the contract due to force majeure, Octrooibureau Novopatent shall be entitled to suspend fulfillment of its obligations for a maximum of 30 days, or to cancel the contract, in whole or in part, without judicial involvement. Octrooibureau Novopatent shall not thereby become liable to pay any compensation.
Article 8 Suspension
- Disputes of any kind whatsoever shall never entitle the Client to refuse or suspend settlement of invoices.
- If the Client considers Octrooibureau Novopatent in breach of its obligations, it shall notify Octrooibureau Novopatent accordingly in writing within eight days of the reasonable time of detection by the Client of such breach by Octrooibureau Novopatent. Unless such prompt written notice is given, the Client shall forfeit the right to invoke such breach.
Article 9 Liability
- Octrooibureau Novopatent shall always use due diligence in the performance of its services. Octrooibureau Novopatent shall only be liable for failures attributable to it in performance of its activities, including culpable failures in the context of third-party involvement as per Article 4. The burden of proof of any liability of Octrooibureau Novopatent shall rest with the Client.
- If Octrooibureau Novopatent may be liable for any loss on any ground whatsoever, such liability will always be limited to an amount of maximally EUR 3000. Any liability of Octrooibureau Novopatent is always limited to the amount of the agency fee which is at issue in the liability.
The right to claim indemnification becomes forfeited, if damage, after its discovery, is not reported to Octrooibureau Novopatent in writing within one month and anyhow as soon as twelve months have elapsed since the event which the damage is resulting from and which Octrooibureau Novopatent can be held liable for. The forgoing also applies in case Client claims indemnification on the basis of a claim taken over or obtained from an other party.
- Octrooibureau Novopatent shall not be liable for loss due to breach by the Client of its obligations under Article 2.
- Octrooibureau Novopatent cannot warrant the correctness or completeness of the information given to them by the Client and do not accept any liability in that regard.
- Octrooibureau Novopatent cannot warrant the correctness, completeness or safe transmission of the contents of a letter, facsimile and/or e-mail sent, nor its timely receipt and they are not liable for viruses and other actors affecting data attached to the message and/or attachments if applicable. Octrooibureau Novopatent assumes that the Client uses optimally updated anti-virus software.
Article 10 Termination of contract
- The Client shall be entitled to terminate its contract with Octrooibureau Novopatent at any time. Termination shall not take effect before receipt by Octrooibureau Novopatent of written notice from the Client. The Client is bound to pay the fee for work already done, and expenses already incurred, at the time of termination. The Client shall also be bound, in such case, to meet the costs of handover of the file to Octrooibureau Novopatent.
- If the Client fails to meet any obligation incumbent upon it under the contract, or does not meet it duly or promptly, and in case of bankruptcy, stay of payments, placement in receivership or closure or winding up of the Client's business, Octrooibureau Novopatent shall be entitled to cancel the contract, in whole or in part, otherwise to end the contract, or to suspend further performance thereof, without any liability to pay compensation and without prejudice to Octrooibureau Novopatent's further rights. All Octrooibureau Novopatent's claims against the Client shall, in such case, fall due immediately. The Client shall be liable for any loss incurred by Octrooibureau Novopatent in this respect, including loss of profit.
- Octrooibureau Novopatent may also terminate the contract if it considers that there has been a breach of trust with the Client, or that there is a conflict of interests with an order from another Client. A conflict of interests is assumed not to exist when the activities for one of the Clients consist solely of or are related to the translation of a European patent granted in the Netherlands and/or Belgium.
Article 11 Choice of law and jurisdiction
- The whole legal relationship between the Client and Octrooibureau Novopatent shall be governed by Dutch law.
- Disputes arising from the legal relations between the Client and Octrooibureau Novopatent shall be referred for settlement only to the Court of The Hague, unless Octrooibureau Novopatent states a preference for referring the dispute for resolution to another competent judicial forum, Dutch or otherwise.
Article 12 Versions of General Terms and Conditions
- In case of discrepancy between the English and Dutch text of these general terms and conditions, the Dutch text shall be binding.
Article 13 Miscellaneous
- The above stipulations can also be invoked by those persons who directly or indirectly are in any way involved in the execution of assignments by Octrooibureau Novopatent.