General terms and conditions

General terms and conditions for commissions to TNO.

1. Definitions

In these General Terms and Conditions, the following terms have the following specific meaning:

Agreement

The agreement between the Parties to carry out (research) activities as described in clause 3.1.

Background

In so far as relevant for the Commission, all IP Rights, as well as knowledge (including not publicly known know how and Trade Secrets), experience and other information to which a Party is entitled and which was not developed or created in the context of the Commission. Background includes objects mutually made available by the Parties within the scope of the Commission, including but not limited to auxiliary- and/or test materials, samples, prototypes, information carriers and/or computer software.

Client

The party that commissions the (research) activities to TNO. For clause 4.4, clause 13.2 and clause 13.5 of the General Terms and Conditions, it also means auxiliary persons engaged by the Client.

Commission

The (research) activities to be carried out by TNO as specified in the Agreement.

Export Laws and Regulations

the applicable rules and regulations with respect to sanctions and export and import control, including but not limited to export and import of military goods and dual-use goods which includes services and technology (jointly referred to as ‘strategic goods’) and chemical substances.

Final Report

The outcome of the Commission as reported in final form by TNO to the Client.

Foreground

all IP Rights, as well as knowledge (including not publicly known know how and Trade Secrets), experience and other information developed or created within the scope of the Commission. Foreground includes objects, including but not limited to auxiliary- and/or test materials, samples, prototypes, information carriers and/or computer software.

General Terms and Conditions

These terms and conditions for commissions to TNO.

IP Rights

all intellectual and industrial property rights, including but not limited to, copy-, database-, trade names-, plant breeders-, model-, trademark- and patents rights and rights regarding topographies of semiconductors and domain names.

Parties

The Client and TNO.

Party

The Client and TNO.

Quotation

A quotation by TNO, in whatever form, for the (contemplated) performance of (research) activities, including any adaptations before the quotation is accepted in accordance with clause 3.1.

TNO

The public legal entity established by public law pursuant to the law of 19 December 1985 concerning the Netherlands Organisation for applied scientific research TNO, with its registered office in Delft, the Netherlands, with its principal place of business in The Hague, the Netherlands and registered with the Dutch Chamber of Commerce under number 27376655. For clause 12.2, clause 13.1 (second sentence), clause 13.2 (with the exception of sub a), clause 13.4 and clause 13.5 of the General Terms and Conditions, it also means auxiliary persons engaged by TNO.

Trade Secrets

Information that meets the conditions as described in clause 1 of the ‘Trade Secrets Act’.

2. Applicability

2.1 - These General Terms and Conditions are applicable to all Quotations and Agreements.

2.2. - General purchase— or other general conditions of the Client are not applicable to the legal relationship between the Parties and are hereby specifically excluded.

2.3 - TNO has defined and filed these General Terms and Conditions at the Court Registry of the Court of The Hague, the Netherlands and with the Dutch Chamber of Commerce. The General Terms and Conditions can also be obtained via www.tno.nl. Upon Client’s request, a physical copy can be sent free of charge.

3. - Quotation and agreement

3.1 - An Quotation is valid for one month, unless TNO explicitly stipulates a different term in the Quotation. On acceptance of the Quotation, an Agreement is deemed to be concluded. If the Client requests to perform (any part of) the Commission, the Client thereby accepts the Quotation..

3.2 - The intended field of use of the Commission is specified in the Agreement. Once the Agreement (including all annexes) is concluded, this contains all agreements between TNO and the Client with respect to the Commission. Modifications, additions to or deviations from the Agreement are only binding if mutually agreed in writing.

3.3 - The Client shall use the Quotation (including any modifications, additions thereto or deviations therefrom) exclusively to determine if the Client will assign the Commission to TNO. If no Agreement is concluded, TNO solely retains all rights with respect to the content of the Quotation, with the exception of any processed information originating from the Client.

4. The commission

4.1 - NO will perform the Commission within the agreed (estimated) term. If this term is likely to be exceeded, the Parties will consult each other in order to determine a new term. TNO will be in default only after the Client has demanded TNO in writing to perform one or more of its obligations under the Agreement within a reasonable term and that term has expired without TNO having performed these obligations.

4.2 - TNO shall use reasonable endeavours to carry out the Commission. TNO will draft a Final Report and will deliver the Final Report to the Client.

4.3 - If TNO delivers a good to the Client, TNO will not provide a warranty thereon. When a good is delivered, TNO will deliver the good Ex Works ‘place of applicable TNO location’. ‘Ex Works’ needs to be interpreted in accordance with the ICC (International Chamber of Commerce) Incoterms 2020.

4.4. - The Client shall not use any outcome of the Commission in a manner that may result in a violation of Export Laws and Regulations. The Client shall indemnify TNO for claims of third parties resulting from non-compliance with Export Laws and Regulations by the Client. TNO may suspend its obligations and suspend the rights of the Client until the required permit, under Export Laws and Regulations, has been granted. TNO may terminate the Agreement if such permit is not granted or is not expected to be granted within a reasonable term, without having any obligations towards the Client. TNO may furthermore terminate the Agreement prematurely and with immediate effect, without an obligation for TNO to pay any compensation to the Client, If continuation of the Commission is not permitted on the basis of Export Laws and Regulations.

4.5. - Upon TNO’s request, the Client shall without delay deliver a statement to TNO regarding the end use and the end-user of the outcome of the Commission.

4.6 - In the performance of (parts of) the Commission, TNO is entitled to engage auxiliary persons.

4.7 - If the Commission concerns goods which were made available by the Client, the Client shall have the responsibility for the selection, representativeness, indication codes and trademarks or product names, identification, sampling date and other relevant (legal) information regarding the goods which will be examined, including affixing visible export control classification numbers and, if necessary, provided with access instructions, storage instructions and user instructions.

4.8 - If TNO has not received all the materials and information from the Client that are required for the performance of the Commission, TNO is not obliged to commence the performance of the Commission. If TNO receives these materials and information later than agreed, the (estimated) term for the performance of the Commission as stated in the Agreement shall be extended by at least the duration of this delay.

4.9 - If the Client has not collected the goods (or the remainder thereof) that were made available to TNO within two weeks after the Final Report has been delivered, TNO will be free to take appropriate measures. Costs of storage, disposal and destruction of the goods shall be at the expense of the Client.

5. Confidentiality

5.1 - During two years after the delivery of the Final Report, TNO will keep the content of the Final Report confidential, with the exception of:

  1. TNO Background;
  2. Foreground developed by TNO, development of which was not an intended outcome of the Commission;
  3. methods and techniques used and/or developed by TNO pertaining to any outcome of the Commission;
  4. the use of findings of TNO in a form that cannot be traced back to the Client or the Commission.

5.2 - Parties shall keep confidential (i) the information that is marked confidential by the Parties and (ii) Trade Secrets, made available for the performance of the Commission, except for:

  1. information already in the possession of the Parties, before Parties took notice of this information in the course of the performance of the Commission;
  2. information in the public domain, or information which is made public, without a breach of confidentiality by the Parties;
  3. information that the Parties validly obtained from a third party or through own research without having used confidential information of the Parties.

TNO is no longer required to observe confidentiality if:

  1. this is necessary to correct misunderstandings which result from the Client having made public any outcome of the Commission;
  2. TNO discovers a serious danger to persons, the environment or goods;
  3. TNO, pursuant to a decision issued by a court of law or supervisory body under public law, is required to disclose information. If reasonably possible, TNO will consult with the Client before disclosing any information in such a case.

5.3 - The confidentiality obligation (in accordance with clause 5.2) regarding the information that is marked confidential shall continue for a period of four (4) years after the expiry of the Agreement, unless otherwise agreed in the Agreement. The confidentiality obligation (in accordance with clause 5.2) regarding Trade Secrets shall apply in full after the expiry of the Agreement and is therefore not limited in time, unless otherwise agreed in the Agreement.

6. Background

6.1 - All rights that the Client owns or obtains with respect to Background of the Client, shall remain vested with the Client. All rights that TNO owns or obtains with respect to Background of TNO, shall remain vested with TNO. TNO may at any time use its Background itself, have it used by third parties or use it for the benefit of third parties.

6.2 - TNO is entitled to use the Background of the Client as far as necessary for the performance of the Commission.

6.3 - Commercial use of Background owned by TNO (also when it is part of any outcome of the Commission) is subject to prior and express written consent of TNO. The latter may be subject to further terms and conditions.

7. Foreground

7.1 - If the Client has created (parts of) Foreground in the context of the Commission, the relevant IP Rights will vest in the Client. The written documentation relating to the Commission, is determinative for the scope of the IP Rights of the Client (or the exclusive right to vest these). Foreground that is created by or on behalf of TNO (regardless whether this is an intended or non-intended outcome of the Commission or methods and techniques used and/or developed by TNO pertaining to any outcome of the Commission), will vest in TNO.

7.2 - Copyrights on a preliminary, intermediate and Final Report, shall always fully vest in TNO.

8. Protection of foreground

8.1 - The Party that has the right to protect (part of) Foreground by means of one or more IP Rights, shall inform the other Party about its exercise of that right and the specific content thereof. TNO and the Client shall provide each other with all reasonably required cooperation to vest one or more IP Rights. TNO will not carry out any investigation, with respect to the possibilities of protecting Foreground by means of IP Rights.

8.2 - If the Client has the right to protect (part of) Foreground and refrains from doing so, the Client shall inform TNO and shall give TNO the opportunity to protect (that part of) Foreground or to continue such protection, in which respect it is noted that all other reciprocal rights under the Agreement (including rights of use) shall remain unchanged.

8.3 - In the event the Client discovers an infringement on IP Rights with respect to Foreground of TNO and/or Background of TNO, the Client shall notify TNO as soon as possible.

9. Use of foreground

9.1 - As from the date of delivery of the Final Report by TNO, the Client acquires the right to use that part of Foreground vested in TNO within the scope of application of the Commission, subject to the limitations laid down in clause 9. During two years from the date of delivery of the Final Report, this right of use is exclusive, except with respect to any incorporated and/or required Background of TNO, for which Parties shall agree a separate license for use.

9.2 - TNO is at any time entitled to use Foreground developed by TNO, the development of which was not intended as an outcome of the Commission, or to use methods and techniques that were used and/or developed by TNO with respect to any outcome(s) of the Commission itself, have it used by third parties or for the benefit of third parties.

9.3 - TNO is at any time entitled to use Foreground (as background knowledge for other research) and, after the term of exclusivity has expired as described in clause 9.1, have it used by third parties or for the benefit of third parties.

9.4 - TNO will not investigate the existence of third party IP Rights with respect to Foreground.

10. Use of a final report

10.1 - A Final Report, as well as a (possible) preliminary or an intermediate report or any subsequent explanatory notes to the Final Report, is solely for the Client’s own use. Any other use requires TNO’s prior written consent, including for:

  1. reproduction or disclosure by means of print, photocopy, in electronic form or in any other way, or storage in a searchable information file;
  2. making available to anyone other than parties with an immediate interest, including use by or for the benefit of third parties;
  3. using or allowing the use, in whole or in part, for the purpose of lodging claims or to conduct legal proceedings;
  4. using or allowing the use, in whole or in part, for advertising or for adverse publicity purposes, including but not limited to publication in or any use by media, or for soliciting sales or services in a more general sense.
    Such prior written consent of TNO may be subject to further terms and conditions. In all cases, anyone to whom a Final Report is made available pursuant to clause 10, must be able to assess the Final Report in its entirety.

11. Price and payment

11.1 - An ‘indicative price’ listed in the Quotation or agreed to in the Agreement is a non-binding indication of the price for the Commission, excluding the expenses incurred by TNO (in consultation with the Client). The final price for the Commission (also in case there is no ‘indicative price’) shall be determined and invoiced on the basis of subsequent calculation. TNO is entitled, each time as of January 1, to index that part of the price for the Commission not yet invoiced, in accordance with the annual adjustment of the rates used by TNO.

11.2 - If a ‘fixed price’ is agreed in the Agreement, this shall be the price for the Commission, excluding the expenses incurred by TNO (in consultation with the Client). If the scope of the Commission is changed or expanded — with approval of the Client —, or in case TNO had to perform additional work because the Client did not inform TNO fully and clearly about its wishes, demands or preconditions upon entering into the Agreement, TNO shall invoice the Client for the additional costs incurred on the basis of subsequent calculation and the Client is obliged to pay these additional costs.

11.3 - TNO may at any time require the Client to make an advanced or interim payment.

11.4 - All amounts quoted in the Quotation and/or in the Agreement are exclusive of VAT, unless explicitly stated otherwise.

11.5 - The Client shall pay a TNO-invoice within thirty (30) days of the invoice date. Any reliance on setoff is excluded. If the Client fails to pay the invoice in time, the commercial statutory interest rate is payable on the overdue amount, as well as all reasonable costs incurred by TNO to obtain payment of its invoice. TNO remains ownership of any goods delivered or to be delivered to the Client, until the relevant TNO-invoice (and possible the commercial statutory interest rate and cost incurred to obtain payment) has been paid in full.

The Client shall not acquire IP Rights to (any part of) the outcome of the Commission until the price as described in clause 11 is paid in full by the Client.

12. Non-performance

12.1 - If a non-performing Party, after a demand to perform his obligation(s) within a reasonable term, is still in default, then the other Party, subject to the conditions of clause 14.1, is no longer obliged to perform its (remaining) obligations under the Agreement and may terminate the Agreement.

12.2 - The Client is obliged to file any claims against TNO by means of a written and substantiated notice to TNO as soon as possible, but in any case before the first annual anniversary of the date of delivery of the Final Report. Claims lodged after that date, will automatically lapse.

13. Liability

13.1 - TNO is only liable for direct damages which are the direct result of an attributable breach by TNO to perform its obligations under the Agreement. The total aggregate liability of TNO on any and all legal grounds, is (cumulatively) limited to the amount of the price that the Client has to pay under clause 11.1.

13.2 - TNO is furthermore not liable for any damages suffered by the Client:

  1. arising as a result of the application or use of any outcome of the Commission;
  2. arising as a result of the fact that any outcome of the Commission cannot be protected by means of one or more IP Rights or because application or use of any outcome of the Commission infringes third party rights;
  3. resulting from defects in goods supplied to TNO, including software, and that are (re-)supplied by TNO to the Client, unless and insofar as the initial supplier has fully compensated TNO for such damages.

13.3 - The limitations of liability as included in clause 13.1 and 13.2 shall not apply in the event of willful intent or gross negligence of TNO.

13.4 - The Client shall fully indemnify TNO against any claims of third parties for damages which result from application or use of any outcome of the Commission by the Client or by any third party to whom the Client has made such outcome of the Commission available, unless such outcome was the result of willful intent or gross negligence of TNO.

13.5 - TNO is not bound by any restrictions of the Client (resulting from the Agreement or otherwise) that serve to limit the liability of the Client wholly or partly.

14. Term and termination

14.1 - The Agreement shall continue for an indefinite period and terminates upon delivery of the Final Report and full payment of the price as described in clause 11. The Agreement shall terminate by operation of law and without an obligation for TNO to pay damages, if:

  1. the Client is declared bankrupt or the Client has filed a bankruptcy petition;
  2. the Client is granted (temporary) suspension of payment or the Client has applied for a suspension of payments;
  3. the Client’s business is liquidated or wound up, or;
  4. prejudgment or executory attachment is levied on substantial part of the Client’s tangible and/or intangible assets or other goods.
    In case the Agreement is terminated pursuant to this clause 14.1 or clause 12.1 and the Final Report is not delivered, the date of termination of the Agreement shall be considered equal to the date of delivery of the Final Report.

14.2 - If the Agreement is terminated prematurely, the Client is not entitled to use any preliminary or interim outcome of the Commission, neither by itself nor by third parties or for the benefit of third parties. If the Parties nevertheless agree in writing that the Client will acquire IP Rights with respect to any preliminary or interim outcome of the Commission, the acquisition of these IP Rights is subject to payment by the Client of the respective part of the price as described in clause 11. The latter shall be determined by TNO in all reasonableness.

15. Force Majeure

15.1 - TNO shall not be liable for any omission or any delay in the performance of the Agreement if the omission or the delay is due to force majeure as defined in (i) clause 15.2 and/or (ii) the applicable law or case law. In case of such omission or delay, the performance of the relevant part or the relevant parts of the Agreement shall be suspended for as long as the omission in question continues, in which however no liability arises for TNO towards the Client for any loss which the Client may suffer as a result.

15.2 - Force majeure includes circumstances beyond TNO’s control or action which are such that that according to criteria of reasonableness and fairness (further) compliance with the Agreement cannot be required. In this paragraph force majeure includes, but is not limited to, the following situations: (i) such absence of employees of TNO due to sickness that the performance of the Agreement is severely hindered (ii) force majeure by third parties which are engaged by TNO (iii) technical failures (iv) import- export- and/or transit prohibitions (v) operational failures, traffic- and or transport disruptions (vi) altered government measures (vii) epidemic and pandemic (viii) extreme weather conditions and (ix) fire.

15.3 - If a force majeure event continues during a period of three (3) consecutive months, TNO shall have the right to terminate the Agreement in whole or in part, with no obligation to pay any compensation to the Client.

16. Personal data

16.1 - Terms defined in the General Data Protection Regulation (EU) 2016/679 (“GDPR”), shall have the same meaning in this clause as provided in the GDPR.

16.2 - If TNO processes personal data in the context of the Agreement and determines the purposes and means in that respect, then TNO is a controller within the meaning of the GDPR.

16.3 - If a personal data breach – concerning personal data that have been processed in the context of the Agreement – took place, the Parties shall notify each other without undue delay. The Parties shall, as far as possible, consult each other prior to the possible notification of the personal data breach to a supervisory authority and to the data subjects.

16.4 - The Parties shall inform each other without undue delay of an investigation of a supervisory authority regarding the processing of personal data in the context of the Agreement.

17. Governing law and choice of forum

17.1 - Dutch law is applicable to all Quotations, Agreements and these General Terms and Conditions.

17.2 - In case of a dispute between the Parties concerning the Quotation or the Agreement (or related agreements) that cannot be resolved amicably between the Parties, this dispute shall be exclusively settled by the competent court in The Hague, the Netherlands.

18. Miscellaneous

18.1 - If the Agreement terminates in any way, the provisions and obligations that are intended to survive the termination, shall continue to apply in full, such as the provisions and obligations in respect of liability, right of use, confidentiality, governing law and choice of forum.

18.2 - If any provision of the General Terms and Conditions is deemed invalid, that shall not affect the validity of the entire General Terms and Conditions.