1.     DEFINITIONS

In these general terms and conditions the following terms shall have the meaning set out below. 

1.     Spark Radar: (i) Spark Radar B.V., a company organized and existing under the laws of the Netherlands, having its registered office at Padualaan 8, 3584 CH Utrecht, the Netherlands, registered with the Commercial Register under number 82936978. 

2.     Agreement: means an agreement setting out the sale and supply of a number of defined Products agreed between Spark Radar and Customer.

3.     Customer: the legal entity purchasing Products from Radar, which can either be an End-User or a Distributor (if agreed on by Parties in accordance with Section 10.5).

4.     Customer Data: any data which Spark Radar receives from Customer for the purpose of manufacturing the Product.

5.     Customer Material: any (biological) material which Spark Radar receives from Customer for the purpose of manufacturing the Product.

6.     Distributor: means any legal person in the supply chain, other than Radar, who makes the Products available on the market. 

7.     End-User: a natural person or legal entity using the Products and who does not intend to resell the Product to a third party.

8.     Field: means agriculture.

9.     GDPR: General Data Protection Regulation, meaning Regulation (EU) 2016/679 of 27 April 2016.

10.  GTC: these general terms and conditions, irrespective of the form in which they are presented.

11.  Party shall mean Spark Radar or Customer, together the Parties that have entered into an Agreement.

12.  Product(s): the Rapid Disease Recognition testing kits containing the Technology and any other product supplied by Spark Radar to Customer.

13.  Technology: Spark Radar’s proprietary RNA technology pertaining to the detection of pathogens.

14.  User Instructions: the instructions for the use of the Product and the Technology provided by Spark Radar to Customer together with the Product (or, if not provided together with the Product, set out as download on the website of Spark Radar).

2.     APPLICABILITY

1.     The GTC shall cover and form part of all offers, Agreements and other acts, either made orally, in writing, electronically or in any other form, concerning the sale and supply by Spark Radar of Products to Customer. 

2.     Deviations from the GTC shall only apply if and to the extent that they have been explicitly agreed upon in writing between Spark Radar and the Customer. 

3.     These GTC supersede any and all prior oral and written quotations, communications, agreements and understandings between Spark Radar and Customer and apply in preference to and supersede any and all terms and conditions submitted by Customer. Failure of Spark Radar to object to terms and conditions set by Customer shall in no event be construed as an acceptance of any terms and conditions of Customer.

4.     If and to the extent that any provision contained in these GTC should prove not valid for whatever reason, the other provisions of these GTC shall remain in full force and effect.

3.     OFFER AND AGREEMENT

1.     All offers made by Spark Radar shall be without any obligation, unless explicitly stated by Spark Radar that the offer is binding. 

2.     All binding offers are valid for the period mentioned in the offer concerned. If no period is mentioned, the offer will be valid for fourteen (14) calendar days after the date mentioned in the offer. 

3.     An Agreement shall have been concluded as soon as the Customer accepts Spark Radar’ binding offer in writing.

4.     Spark Radar is entitled to request that the Customer places orders for Products having a certain minimum quantity or value.

5.     If Customer has not provided Spark Radar with the Customer Materials or Customer Data necessary for manufacturing the Products and set out in the Agreement within two (2) weeks after an Agreement has come into effect (or such other term as agreed by the Parties), Spark Radar has the right to either i) promptly and unilaterally terminate the Agreement by written notice; or ii) unilaterally and on the date Spark Radar has actually received the Customer Materials or Customer Data, increase the fees and/or expenses and/or payment(s) for the Products specified in the Agreement in proportion to the relative increase of Spark Radar’s payments made for costs of goods and/or labour, insofar such increase has meanwhile occurred at the date of receipt of the Customer Materials or Customer Data (a “Price Increase”).

4.     PRICES, FEES AND VARIATIONS

1.     All prices and fees mentioned in Spark Radar’s offers are in Euros, unless explicitly otherwise stated. 

2.     All prices and fees are excluding value-added tax (VAT), any other sales tax, duty, inspection or testing fee and any other taxes or government levies, as well as costs for transport and delivery, unless explicitly otherwise stated. 

3.     Spark Radar is at any time authorized to adjust its prices and fees with respect to new orders for Products, and/or technical support for such new orders. Furthermore, Spark Radar is, in the event of multi year supply of Products, authorized to adjust its fees for Products and technical support on an annual basis in accordance with the Dutch consumer price index. In addition thereto, Spark Radar is entitled to increase its prices for Product and technical support if in any year the costs of labour and/or costs of good for Spark Radar have increased above the Dutch consumer price index. 

4.     If, in agreement with the Customer, deviations from the original Agreement are made, the costs deriving from such deviations will be invoiced to the Customer against the prices and fees that apply at such moment. 

5.     Unless expressly otherwise agreed in writing, the purchase price for the Products is exclusive of any additional technical or other services, which, if applicable, will be charged separately.

5.     PAYMENT

1.     Unless otherwise agreed between Spark Radar and Customer, Spark Radar’s invoices must be paid within fourteen (14) calendar days after the date of invoice. Invoices for sale of Product will be sent when Customer and Spark Radar enter into an Agreement.

2.     All payments by the Customer to Spark Radar shall first be applied against the oldest of any outstanding invoices and furthermore, first be applied for any unpaid late interest, irrespective of any other indication by the Customer. 

3.     Customer shall not be entitled to any postponement of payment of Spark Radar’s invoices, neither to any set-off or reduction outside the scope of its rights in this respect under mandatory law. 

4.     Spark Radar is entitled at all times to require payment in advance by Customer and to postpone delivery of Products until such payment in advance has been received. Furthermore, Spark Radar is entitled to require security from the Customer for the fulfilment of its payment obligation in any form, to be indicated by Spark Radar, such as a bank guarantee. In such event, the Products will only be delivered after such security has been obtained. 

5.     If the Customer fails to pay an invoice within the payment term, Customer is in default without a warning or notice of default being required. 

6.     All of Customer’s objections against any of Spark Radar’s invoices must be notified in writing to Spark Radar within fourteen (14) calendar days after the date of invoice, after which term the amount concerned is considered to be acknowledged for payment in due time.

7.     From the day on which the Customer is in default until the day of payment in full, the commercial interest rate (de wettelijke handelsrente) shall accrue on the outstanding amount in accordance with article 6:119a of the Dutch Commercial Code. 

8.     If Customer continues to be in default in his obligation to pay the outstanding invoice with accrued interest, Spark Radar is at liberty to instruct a debt-collector agency and/or lawyer to collect Customer’s debt.  All collection costs incurred by Spark Radar in respect of such collection, both in law (judicial costs) as well as out of law (extra judicial costs) shall be for the Customer’s sole account. The amount of the collection costs shall be determined at 15% (fifteen per cent) of the principal sum due by Customer to Spark Radar with a minimum amount of EUR 250. 

6.     CUSTOMER MATERIAL AND CUSTOMER DATA

1.     The Customer Material and Customer Data transferred by Customer to Spark Radar (if any) shall remain the property of Customer. Customer grants Spark Radar, and any subcontractors engaged by Spark Radar, the right to use the Customer Material and/or Customer Data for the purpose of manufacturing and delivering the Products.

2.     Customer will provide Spark Radar within 14 days after the signing of the Agreement (or such other time as agreed between the Parties) with the necessary Customer Material, Customer Data, and/or other information required by Spark Radar for the manufacture and delivery of the Products.

3.     Before supplying Spark Radar with the Customer Material, Customer will inform Spark Radar correct and complete on whether the Customer Materials are infected or not, if and for so far Customer can reasonably know. Customer acknowledges that Customer Material that is not pathogen free may cause substantial damages to Spark Radar for which reason Spark Radar may have the Customer Material tested for pathogens or other contaminations by a third party laboratory at Customer’s costs. 

4.     Customer will supply Spark Radar with the Customer Material and Customer Data at its own risk and expense (DDP, incoterms 2020) and in accordance with the instructions of Spark Radar. Spark Radar may require Customer to supply the Customer Materials directly to a subcontractor, in accordance with article 7.2

5.     Customer warrants that it is entitled to provide Spark Radar with the Customer Material and Customer Data and that such Customer Material and Customer Data and the agreed use thereof by Spark Radar do not infringe upon any third party intellectual property right.

6.     Customer warrants that the Customer Material, Customer Data and any other information provided by Customer to Spark Radar shall not constitute or include personal information identifying any person as defined in the GDPR or the Dutch Data Protection Act or any legislation or regulation replacing or succeeding such Regulation or Act.

7.     Spark Radar will exclusively use the Customer Material and Customer Data for manufacture of Product and rendering services as agreed with Customer.

8.     Unless otherwise agreed, Spark Radar will destroy all Customer Material and Customer Data after one (1) year after receiving the Customer Materials. 

7.     PERFORMANCE, DELIVERY AND RETENTION OF TITLE

1.     Spark Radar shall use commercially reasonable efforts to deliver the Products within the agreed term, but delivery times are estimates only and Spark Radar shall not be liable for any damages suffered by Customer in the event that, despite Spark Radar’s reasonable efforts, the Products are not delivered within such agreed term. 

2.     In the event of an Agreement for recurring supply of Product, the Parties will agree on a half year forecast procedure for planning purposes.

3.     Products shall be delivered FCA Spark Radar (Incoterms 2020). Risk of loss or damage with respect to the Products shall pass to Customer when Spark Radar hands over the Products to the courier selected by Customer. 

4.     Spark Radar retains title to the Products, until payment has been received in full, including accrued interest and costs referred to in article 5 of these GTC.

5.     All Products shall be suitably packed in Spark Radar’s standard shipping materials in accordance with Spark Radar’s packaging SOPs and marked for delivery to Customer.

6.     Along with the Products, Spark Radar will provide Customer with the User Instructions. In lieu thereof, Spark Radar may refer to the User Instructions in downloadable form on the website of Spark Radar.

8.     COMPLAINTS

1.     Any claims for damaged, missing or defective Products or otherwise incorrect deliveries must be reported in writing to Spark Radar within fourteen (14) calendar days from receipt of the Products. In absence of timely complaints, the Products will have deemed to have been received in good condition and accepted by Customer. 

2.     If Customer is of the opinion that any Product delivered by Spark Radar does not meet the agreed conditions, Customer must notify Spark Radar thereof in writing within fourteen (14) calendar days of delivery. 

3.     For any valid complaint made regarding Products, Spark Radar shall at its option, either at Spark Radar’s costs replace the Product with an identical or substantially similar Product, or credit Customer for the amount paid for the Product. The foregoing shall be Customer’s sole and exclusive remedy for damaged, defective or missing Products.

9.     WARRANTY, INDEMNIFICATION AND LIMITATION OF LIABILITY

1.     Spark Radar warrants that the Product meets with the specifications set out in the User Instructions provided that this warranty does not apply if and when the Customer does not use the Product in adherence to the User Instructions. This warranty will in any event expire on the expiry date of the Product set out on the packaging of the Product.

2.     Save for the warranty set out in Section 9.1, Spark Radar does not make any warranties, express or implied, by operation of law or otherwise. Spark Radar does expressly not warrant merchantability or fitness for a particular purpose of the Product, that the results obtained by Customer by use of the Product do not contain any errors and/or inaccuracies or fit for Customer’s purpose or that the use of the Products or Technology will not infringe any patent or any other intellectual property right or license of a third party.

3.     The liability Spark Radar under or in relation to this Agreement (whether by contract, tort or equity) will be limited to compensation of the direct damages. Any liability of Spark Radar for special, punitive, consequential or indirect damage, including but not limited to loss of profits, loss of turnover, loss of prospective profits or anticipated sales or goodwill is expressly excluded. 

4.     The liability of Spark Radar shall furthermore, save for wilful misconduct or gross negligence of Spark Radar or its officers, never exceed the purchase price for the Product to which the failure pertains. This clause does not apply to death or personal injury to the extent that Spark Radar cannot by law exclude or limit its liability for such damages.

5.     Customer agrees to indemnify, defend and hold Spark Radar harmless against any and all claims and/or damages resulting from:

a.              the use of the Products by Customer, its officers, employees or agents in breach or non-compliance with these GTC; and

b.              the use of the Products by any End-User who purchased the Product (directly or indirectly) from Customer; and

c.              Customer’s breach of any provision of these GTC and/or any related agreement; and

d.              any infringement of third-party intellectual property rights by (i) Spark Radar when using Customer Material or Customer Data or (ii) by Customer when using the Products.

6.              The provisions in this Article 9 shall also apply for the benefit of all subcontractors engaged by Spark Radar in executing the Agreement.

10.         CUSTOMER OBLIGATIONS 

1.     Customer will use the Products in strict accordance with all applicable laws and regulations and the User Instructions and ensures that all persons that use the Product on behalf of Customer are familiar with and adhere to the User Instructions. Pursuant to the foregoing, Customer shall not use the Products after the expiry date identified on the packaging of the Product. 

2.    Customer will only use the Product in the Field and in no event in humans or for human diagnostics.

3.    Customer shall store the Products in accordance with the storage conditions specified by Spark Radar in the User Instructions and the conditions indicated on the packaging of the Product.

4.    Customer shall without delay but in any event within 14 days after detection, report any incidents (defined as any malfunction, failure or deterioration in the characteristics and/or performance of a Product, any inadequacy in the information supplied by Spark Radar and any unexpected adverse event) to Spark Radar.

5.    Customer shall only use the Product for its own product testing and not resell the Product, render services to third parties by use of the Product or make the Product available to any third party unless agreed otherwise in writing between the Parties. 

6.    If it is agreed that Customer is entitled to resell the Product (to End Users) it will not make any warranty or representation to such End Users relating to the quality, reliability, fitness for purpose or any other feature of the Products than those given by Spark Radar. If Customer unilaterally extends any additional warranty, Customer shall indemnify Spark Radar for any liability caused by such additional warranty. 

7.    In the event of publications of Customer of the results obtained by use of the Product, Customer will notify Spark Radar thereof sufficiently in advance and will, if so requested by Spark Radar, duly acknowledge the use of the Product and Spark Radar in such publication. Customer will not make any reference to the Product or Spark Radar without the prior consent of Spark Radar.

11.         CONFIDENTIALITY

1.    Both Spark Radar and Customer undertake to observe strict confidentiality with regard to all confidential information they receive from each other. They shall also impose this confidentiality obligation on their employees as well as to third parties who have been contracted by them in connection with any agreement between Spark Radar and Customer.Information will in any event be regarded as confidential if either Spark Radar or Customer indicates such information as confidential but may also include information of which the confidential character should be reasonably understood by the receiving Party.

2.    No Party will use the confidential information of the other Party for any purpose other than required to execute its rights and obligations under this Agreement. Each Party may disclose confidential information of the other Party only to its employees and advisors who have a need to know and who are bound by confidentiality at least as strict as set out in this Article 11.

3.    The obligations of confidentiality and non-use will survive the expiration or termination of this Agreement for a period of 10 (ten) years.

4.    The confidentiality and non use obligations referred to in articles 11.1 and 11.2 above shall not apply or cease to apply to information regarding which the receiving Party can prove by documentary evidence that: 

a.              it was in the public domain prior to disclosure to the receiving Party;

b.              it was in its possession prior to the disclosure to the receiving Party without any obligation of confidentiality;

c.         after disclosure to the receiving Party, it became part of the public domain by publication or otherwise through no act or omission of the receiving Party;

d.              after disclosure to the receiving Party, it has been lawfully provided by a third party, meaning that this third party was not under any confidentiality obligation regarding the information supplied to the receiving Party;

e.        is required to be disclosed pursuant to applicable law or court order provided that in such event the receiving Party notifies the disclosing Party in advance and, in consultation with the disclosing Party, minimizes the disclosure to the extent legally possible.

12.INTELLECTUAL PROPERTY

1.    Spark Radar owns all right and title to any intellectual property rights regarding its Product and the Technology. The sale and supply of the Product does not grant any right or title to such intellectual property rights to the Customer.

2.    Spark Radar may use the results, obtained by Customer by use of the Product, for its own internal research, solely for the purpose to further develop its Technology. 

3.    Any improvements to the Technology arisen during the use of the Product by Customer shall be owned by Spark Radar. Customer will, at first notice of Spark Radar, assign to Spark Radar all of Customer’s right, title and interest in and to any and all improvements to the Technology and any and all intellectual property rights therein.

4.    Customer will not disassemble, decompile, reverse engineer, modify or otherwise change the Product and/or the Technology.

5.    Customer will own the Customer Materials and Customer Information and will own all results obtained by Customer by use of the Product.

13.  FORCE MAJEURE

1.     Neither Spark Radar nor Customer will be liable for nonperformance or delays in performance under these GTC or Agreement if its performance thereof is delayed or prevented by any event beyond such Party's reasonable control, including but not limited to, failure of suppliers of Spark Radar and defects in any materials or software that Spark Radar uses for the manufacture or delivery of the Products, provided that such performance shall be excused only to the extent of and during such event (“Force Majeure”). Upon the occurrence of any such event, the Party suffering thereby shall promptly inform the other Party by written notice thereof specifying the cause of the event and how it will affect its performance. 

2.     If a situation of Force Majeure lasts for more than ninety (90) calendar days, the Party not affected by the Force Majeure shall be entitled to terminate the Agreement by rescinding it in writing. What has already been performed pursuant to the Agreement shall in that case be settled proportionately, without the Parties otherwise owing each other anything.

14.           MISCELLANEOUS

1.     Parties may communicate with each other by electronic mail. Parties recognize the risks associated with electronic mail including, but not limited to, distortion, delays, interception, manipulation and viruses. Parties hereby declare that they shall not hold each other liable for any damage incurred by either of them as a result of the use of electronic mail. This also applies to the use of electronic communication between us and – irrespective of the form – third parties including, but not limited to the Dutch tax authorities. The Parties shall do or omit all that can reasonably be expected of them to avoid such risks. If a Party should be in doubt as to the content of an electronic message received, the content of the message originating with the sender shall be decisive.

2.     The invalidity or unenforceability of any provision of this these GTC shall not affect or limit the validity or enforceability of any other provisions hereof. Any such invalid or unenforceable provision shall be replaced or deemed to be replaced by a provision that is considered to be valid and enforceable. The interpretation of the replacing provision shall be as close as possible to the intent of the invalid or unenforceable provision.

3.     Customer cannot assign its obligations and rights under GTC, a quotation or offer by Spark Radar or any Agreement with Spark Radar to a third party without the prior written consent of Spark Radar. 

4.     Spark Radar reserves the right to, at its sole discretion, modify these GTC upon 14 days written notice to the Customer. Any such modification shall not be effective on any Product already delivered by Spark Radar but will be effective on any future supply of Product. 

5.     In case of conflict between these GTC and the main Agreement, the provisions of the main Agreement shall prevail. 

15.         TERMINATION

1.    Any Agreement (and these GTCs as integral part thereof) shall remain in force for as long as Customer uses the Product.

2.     Spark Radar will have the right to terminate any Agreement with Customer in the event Customer does not supply Spark Radar with the necessary Customer Material and/or Customer Data within fourteen (14) days after the date of the Agreement (or such other data as agreed by the Parties) or if Customer fails to pay an invoice within the payment term.

3.    Each of Spark Radar and Customer is entitled to terminate an Agreement in place between them with immediate effect and without any judicial intervention being required if: 

a.        The other Party has not, not timely or not properly fulfilled its obligations hereunder and, such default can either not be cured or, if curable, has not been cured within fourteen (14) calendar days after receipt of written notice thereof from the non defaulting Party, all without prejudice to the right of the non defaulting Party to claim the damages it has suffered as a result of the termination of the Agreement; or 

b.              The other Party files for bankruptcy or suspension of debts (surséance), a petition for bankruptcy has been filed against it, passes a resolution for its liquidation, if a liquidator is appointed in respect of its assets or if the counterparty makes an assignment for the benefit of its creditors, or deceases.  

4.              The termination of an Agreement between Spark Radar and Customer does not release Customer from any payment obligation regarding any Products delivered by Spark Radar.  

5.              The provisions regarding Customer Material and Customer Data (Article 6), Warranty, Indemnification and Limitation of liability (Article 9), Confidentiality (Article 11), Intellectual Property Rights (Article 12), Miscellaneous (Article 14), Sections 15.4 and 15.5, and Applicable Law and Disputes (Article 16) shall survive termination of the Agreement. 

16.         APPLICABLE LAW AND DISPUTES

1.    These GTC as well as any Agreement between Spark Radar and Customer are governed by the laws of the Netherlands. The UN Convention on the international sale of goods (CISG) is expressly excluded.

2.    Any disputes following from or arising in connection with these GTC and any Agreement between Spark Radar and Customer shall exclusively be settled by the Netherlands Commercial Court in Amsterdam, The Netherlands.