EFFECTIVE DATE: AUGUST 2018

General Terms and Conditions—Agendia, NV

1. Agendia N.V. (“Agendia”) will be providing the laboratory testing services, test results and any related products (the “Services”) pursuant to (1) the Terms of Use accepted and agreed to prior to accessing the Agendia web portal; (2) Agendia’s order Test Request Form (“TRF”) completed by an authorized medical professional and submitted by the physician identified on the TRF, acting on behalf of the listed patient and for himself (“Client”); and (3) these General Terms and Conditions. Agendia explicitly rejects the applicability of any general conditions used by Client. All Services will be carried out exclusively by Agendia, with the exclusion of articles 7:404 and 7:407 (2) of the Dutch Civil Code. Agendia will perform the Services in a professional and workmanlike manner in accordance with applicable industry standards. All terms of delivery of services, including but not limited to turnaround times, only serve as guidelines and are therefore never fatal, unless Agendia has explicitly stated otherwise.
2. Client agrees that a legally binding agreement that includes these General Terms and Conditions shall arise the earlier of the time Agendia accepts Client’s TRF by e-mail or written confirmation or the moment Agendia starts executing such TRF. Client’s submission of the TRF and Agendia’s acceptance thereof constitutes express acceptance of these General Terms and Conditions.
3. Client will at all times timely and completely provide Agendia with all data and other information required and requested by Agendia and necessary for the delivery of the Services (“Client Information”).
4. Client warrants that the Client Information is correct and complete, and that it is entitled to provide Agendia with such information for the delivery of the Services. Client shall indemnify, defend, and hold harmless Agendia, its affiliates and contractors against all claims by a third party or governmental entity, relating to or arising out of the provision of Client Information to Agendia, and shall pay any costs incurred by Agendia relating thereto, including but not limited to attorneys’ fees, defense costs, any award of damages, losses or other liability (collectively, “Losses”).
5. If any of the Client Information or other data provided is personal data of a patient or patient data otherwise protected by law (“Protected Data”), Client represents and warrants that Client has fully complied with any and all applicable regulations and other legal requirements for the protection of privacy and security of such Protected Data and that Agendia is entitled to collect, store, use and process such data as is necessary to provide the Services. Client shall indemnify, defend, and hold harmless Agendia, its affiliates and contractors against any Losses relating to or arising out of any claim by a third party or governmental entity that Client failed to comply with appropriate privacy protections or legal requirements in collecting or otherwise providing such Protected Data to Agendia and shall pay any Losses incurred by Agendia relating thereto. If and to the extent that Client provides Agendia with its own private, personal, sensitive, or protected data, Client herewith explicitly authorizes Agendia to collect, store, use and process such data as reasonably necessary to provide the Services. Agendia will take reasonable steps necessary to comply with any and all applicable privacy regulations and laws pertaining to Protected Data or other data covered by this paragraph.
6. With respect to any personal data of a patient or patient data otherwise protected by law (“Protected Data”) that relates to a citizen of the EU, the Client agrees that they are acting as a Data Controller and that Agendia is a Data Processor as defined by Art 4 (7) and (8) of the General Data Protection Regulations (EU) 2016/679 such that Agendia will act only on the instructions of the Client as Data Controller. Acceptance of these terms shall constitute adoption of the EU Data Processing Agreement found on the Agendia Privacy Dashboard including in relation to transfer of Protected Data to the United States for processing.
7. With respect to any material that has come from a human body and consists of, or includes, human cells (“Material”), provided by Client to Agendia for the delivery of the Services, Client represents and warrants (i) that Client has fully complied with any and all regulations and other legal requirements relating to the collection, storage and use of the Material and that Agendia is entitled to collect, store, use and process such Material as is necessary to provide the Services; and (ii) that it has obtained all necessary approvals and appropriate informed consents, in writing, for the collection, transfer and use of the Material as is necessary for Agendia to provide the Services. Client shall indemnify, defend, and hold harmless Agendia, its affiliates and contractors against all claims by a third party or governmental entity, relating to or arising out of the provision of Material to Agendia and the use by Agendia of that Material for delivery of the Services, and shall pay any losses incurred by Agendia relating thereto. Agendia shall be entitled to reject Material if, in Agendia´s sole discretion, that Material does not meet Agendia’s quality control criteria.
8. Client shall give and make no warranty or representation on behalf of Agendia’s Services as to quality, reliability, fitness for particular purpose, merchantability or any other feature of the Services other than as may be explicitly set forth in writing by Agendia in the warranty literature applicable to the specific Service (if any). If Client, or his or her employees, representatives, staff, affiliates, associates or agents (collectively, “Client Representatives”) alters or expands any existing warranty or extends any additional warranty, expressly or impliedly, regarding the Services, Client shall indemnify, defend, and hold harmless Agendia for any and all claims by a third party or governmental entity relating to any such warranty and shall pay any losses incurred by Agendia relating thereto.
9. Client shall be solely liable for any claims arising out of or relating to the improper or faulty collection and/or handling of any Material, any errors in transmission of information or data (including any Client Information or Protected Data) to Agendia, or any illegal or tortious act committed by Client or any Client Representative. Client shall indemnify, defend, and hold harmless Agendia for any such claims by a third party or governmental entity and shall pay any Losses incurred by Agendia relating thereto.
10. Client will undertake, and will cause Client Representatives to undertake, to observe strict confidentiality with regard to all confidential information it receives from Agendia, including any testing results or patient records. Client shall impose the obligation in writing on Client Representatives as well as to third parties who have been engaged by any of them as it relates to the Services being provided by Agendia and all testing results and patent records. Client and Client Representatives shall use the confidential information only for the purpose for which it has been provided. Regardless of the nature of such information, Client agrees to take any and all reasonable measures to keep any such information confidential if Agendia indicates such information to be confidential. Client agrees not to use the results of any of the Services to validate retrospectively signatures directly competing with the Services or to share the results with Client Representatives or any third party for that purpose.
11. Prices exclude delivery charges and are exclusive of all applicable withholding, excise, sales, use, service, value added or like taxes in each case imposed now or in the future by any governmental authority in connection with the transactions or amounts payable by Client (collectively, “Taxes”). Client shall pay all Taxes, unless Client has provided Agendia with an appropriate exemption certificate for such Taxes for the delivery jurisdiction. Payment is due from Client net 30 days from Agendia’s date of invoice to Client and shall be made in Euros. All payments by Client to Agendia shall first be applied against the oldest of any outstanding invoices, irrespective of any other indication by Client. Any invoice which is unpaid by Client when due shall be subject to the interest rate of one percent (1%) per month or the maximum allowable by applicable law, whichever is lower, plus such late payment charge as Agendia may reasonably require to cover its additional costs of administration and collection, which Client shall pay to Agendia upon demand. Agendia may change credit or payment terms at any time if Agendia determines, in its sole discretion, that Client’s financial condition, previous payment record or the nature of Client’s relationship with Agendia so warrants. Agendia may suspend or discontinue performance and/or terminate these General Terms and Conditions if Client fails to pay any sum when due, or fails to perform under these General Terms and Conditions or any other agreement with Agendia.
12. Agendia will ship any products according to Agendia’s standard commercial practice, unless otherwise indicated in an executed writing between the parties. All shipments of product will be made EX Works (Incoterms 2010) Agendia authorized facility, unless otherwise specified in an executed writing between the parties. If special packing or shipping instructions are agreed by Agendia, charges for such packing and/or shipping will be billed separately to Client.
13. CLIENT ACKNOWLEDGES THAT AGENDIA IS NOT PROVIDING ANY GUARANTEE THAT THE SERVICES WILL ALWAYS BE ERROR-FREE, COMPLETE OR ACCURATE. EXCEPT FOR ANY EXPRESS WARRANTIES MADE BY AGENDIA IN THESE GENERAL TERMS AND CONDITIONS OR OTHERWISE IN WRITING IN WARRANTY LITERATURE (IF ANY) REGARDING THE SERVICES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGENDIA SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES AS TO THE QUALITY, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ANY OTHER FEATURE OF THE SERVICES. ALL RIGHTS OF ACTION AND OTHER POWERS OF WHATEVER NATURE VIS-À-VIS AGENDIA RELATED TO SERVICES PROVIDED BY AGENDIA SHALL LAPSE IN ANY EVENT ONE YEAR AFTER THE MOMENT ON WHICH CLIENT IS AWARE OR COULD REASONABLY BE AWARE OF THE EXISTENCE OF THESE RIGHTS AND POWERS.
14. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGENDIA SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGES, EITHER DIRECT OR CONSEQUENTIAL, SUCH AS LOSS OF BUSINESS, PROFITS, GOOD WILL OR SIMILAR, INCURRED BY CLIENT OR BY ANY THIRD PARTY, INCLUDING ANY LEGAL LIABILITY OR DAMAGES. IF AGENDIA IS DEEMED LIABLE DESPITE THIS PROVISION, ANY DAMAGES TO BE PAID BY AGENDIA TO CLIENT WITH RESPECT TO ANY SERVICES PROVIDED PURSUANT TO THESE GENERAL TERMS AND CONDITIONS WILL, IN ANY CASE, BE LIMITED TO COMPENSATION OF DAMAGES FOUND TO BE SUFFERED BY CLIENT, WHICH AMOUNT SHALL NOT EXCEED THE SUM PAID OR PAYABLE FOR THE SERVICES AT ISSUE. AGENDIA SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR DELAY DURING SHIPPING. NOTWITHSTANDING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL ANY LIABILITY OF AGENDIA EXCEED THE AMOUNT WHICH IS COVERED BY THE PROFESSIONAL LIABILITY INSURANCE POLICY ENTERED INTO BY AGENDIA, TO BE INCREASED BY THE AMOUNT OF THE DEDUCTIBLE, WHICH ACCORDING TO THE TERMS AND CONDITIONS OF THE INSURANCE POLICY WILL NOT BE FOR THE ACCOUNT OF THE INSURER.
15. These General Terms and Conditions, the Agendia Terms of Use and the TRF constitute the full and entire understanding between Client and Agendia regarding the Services and supersede any prior agreement or negotiations between the parties. Any modifications or amendments to these General Terms and Conditions shall be in writing and signed by both parties. No failure or delay on the part of either party in exercising any right or remedy with respect to a breach of these General Terms and Conditions by the other party shall operate as a waiver thereof or of any prior or subsequent breach of these General Terms and Conditions by the breaching party, nor shall the exercise of any such right or remedy preclude any other or future exercise thereof or exercise of any other right or remedy in connection with these General Terms and Conditions. Any waiver must be in writing and signed by the waiving party. Agendia is excused from performance of the Service and these General Terms and Conditions and will not be liable for any delay in whole or in part caused by the occurrence of any event or contingency beyond the reasonable control of Agendia, which includes, without limitation, war, any act of civil disobedience, act of government or any agency or subdivision thereof, judicial action, labor dispute, accident, fire, flood, natural disaster or other act of God, interruptions or failure of the Internet or third-party network connections. These General Terms and Conditions shall be governed by the laws of The Netherlands, without regard to the conflicts of law provisions thereof. In the event of any litigation or dispute arising out of or relating to these General Terms and Conditions or the provision of Services, the parties expressly consent to exclusive venue in the district court of Amsterdam, The Netherlands, without prejudice to the right of appeal and that of appeal to the Supreme Court, and the prevailing party shall be entitled to recover all costs and reasonable attorneys’ fees incurred related thereto.