BIOBEST GROUP NV | GENERAL TERMS AND CONDITIONS OF SALE
Article 1: Definitions
In these general terms and conditions of sale (“General Terms and Conditions”) of Biobest Group NV (“Biobest” or the “Company”), the below terms and expressions have the following meanings:
1.1 Biobest or Company: Biobest Group NV, with its registered office at Ilse Velden 18, 2260 Westerlo – Oevel, Belgium, with company registration number 0893.948.337, and its Affiliates as defined below;
1.2 Affiliates: with respect to the Company, any natural person or legal entity directly or indirectly controlled by, or under common control with, the Company;
1.3 Customer: the natural person or legal entity whose Purchase Order of Products and/or Services, as defined below, is accepted by the Company;
1.4 Parties: the Company and the Customer;
1.5 Goods or Products: any products that the Company will supply or has supplied to the Customer;
1.6 Services: any services that the Company will provide or has provided to the Customer, including, without limitation, consulting (whether or not in connection with the sale of Products), leasing of bumblebees, and providing ‘Software as a Service’ (SaaS) in high-technology integrated pest control products;
1.7 Purchase Order: the Customer’s written or electronic order for Products and/or Services, including any order that the Customer places online through the Biobest website or transmits via email or fax;
1.8 Agreement: any agreement for the sale of Products and/or Services to the Customer resulting from a Purchase Order placed with and accepted by Biobest;
1.9 Insolvency Event: an insolvency proceeding as listed in Annex A to Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings;
1.10 Trademarks: any trademarks, service marks and logos displayed, and any document or website referenced, on the Products;
1.11 Force Majeure: any event or circumstance beyond the reasonable control of Biobest as a result of which the performance of the Agreement becomes temporarily or permanently impossible, including, without limitation, natural disasters, explosions, floods, snow and frost, extreme weather conditions, fire, accident, epidemics or pandemics, war and threat of war, terrorism, sabotage, civil
disturbances, labour disputes or actions, strikes, lock-outs, lack of necessary materials or supplies, power or water shortages, transport disruptions, breakdown or loss of production or expected production of production equipment, import or export regulations or embargoes, measures to prevent the spread of disease or cyber-attacks or other obstructive measures by domestic and foreign competent authorities;
1.12 Confidential Information: any Agreement and all Product- and Service-related information, including, without limitation, pricing, advice and descriptions provided by Biobest to the Customer regardless of the form in which such information is provided.
Article 2: Applicability
2.1 All negotiations between Biobest and the Customer shall be subject to the General Terms and Conditions. This relates to the sale and delivery of both Products and Services and includes all offers, notifications, Purchase Order confirmations, Agreements, invoices and activities carried out by Biobest. No additional or alternative terms and conditions or amendments to these General Terms and
Conditions that the Customer proposes and that are contained in or referred to in a Purchase Order or that are submitted to Biobest in any other form shall, regardless of the time at which such additional or alternative terms and conditions or amendments of the Customer were transmitted to Biobest and regardless of the time at which Biobest transmitted the General Terms and Conditions to the
Customer, be deemed to apply unless explicitly accepted in writing by Biobest.
2.2 The Customer shall be deemed to have accepted these General Terms and Conditions in full by his previous submission of a Purchase Order to Biobest or by his acceptance of Products and/or Services of Biobest.
2.3 A duly executed agreement between the Parties shall supersede the General Terms and Conditions for those items for which such agreement explicitly defines different terms and conditions. For all other items, the General Terms and Conditions shall continue to apply.
2.4 The General Terms and Conditions shall supersede any other general terms and conditions of the Customer. The General Terms and Conditions of the Customer shall only apply if explicitly accepted in writing by Biobest.
Article 3: Offers
3.1 The Customer agrees that the preparation by Biobest of a price quotation, price list or any other information shall not be considered an offer by Biobest to sell Products and/or Services. Price quotations issued by Biobest shall have a validity of thirty (30) calendar days. Only a Purchase Order submitted by the Customer shall constitute an offer to enter into an Agreement subject to these General Terms
and Conditions. However, a Purchase Order shall not be considered an Agreement unless and until the earlier date upon which Biobest:
a. explicitly confirms the Purchase Order in writing; or
b. commences the execution of the Purchase Order.
3.2 Biobest reserves the right to, without notice to the Customer, make any changes to the specifications of the Products and/or Services that are necessary to comply with any statutory or other legal requirements or that do not materially affect the performance of the relevant Products and/or Services.
3.3 A Purchase Order that the Company accepted may not be cancelled, modified or rescheduled by the Customer except with the explicit prior written consent of the Company. Biobest shall be entitled to indemnification against all losses (including loss of profit), costs (including the cost of all labour and materials used), damages and expenses incurred by Biobest as a result of a cancellation, for an
amount ranging from a minimum of five per cent (5%) up to a maximum of one hundred per cent (100%) of the total value of a cancelled Purchase Order (which amount represents, as also confirmed by the Customer, an accurate prior estimate of the loss of Biobest). Biobest shall calculate the amount of the indemnification and communicate such amount to the Customer as soon as possible.
3.4 Under no circumstances can a Purchase Order be modified or cancelled on the date of packaging of the Products.
Article 4: Price
4.1 The prices quoted by Biobest in an offer are always indicative, meaning that they are based on the information that is available at the time that the offer is made. Consequently, the quoted prices are subject to fluctuations in prices of materials, fluctuations in daily prices, and market fluctuations and are provided only as non-binding guidelines. Incorrect, modified or new information or circumstances
cannot give rise to a right to compensation, price reduction, suspension of payment, or dissolution of the Agreement.
4.2 The prices agreed by the Parties in the Agreement are fixed an irrevocable, unless the Agreement explicitly defines the circumstances that may lead to a price change and explicitly determines the manner of implementing such a price change.
4.3 Prices are in EUROs. All prices are, unless otherwise agreed in writing by the Parties, exclusive of the cost of transport and delivery Ex Works (EXW) Incoterms 2020. All prices are also exclusive of applicable value-added tax (VAT), sales tax, use tax, consumption tax and other additional taxes (other than taxes based on Biobest’s net income) that the Customer has to pay to Biobest. All taxes shall be paid by the Customer to Biobest unless the Customer provides Biobest with a valid certificate of exemption that is acceptable to the competent tax authority. The Customer shall make all payments to Biobest without reduction for any withholding taxes, which shall be the sole responsibility of the Customer. All prices are exclusive of any import duties and similar charges that Biobest may legally or statutorily levy or collect in accordance with such laws or statutes.
Article 5: Transport, delivery and delivery dates
5.1 Unless otherwise agreed by the Parties, the Company shall fulfil its obligation to deliver the Products when it has made the Goods available to the Customer at the Company’s premises (i.e., factory, warehouse, etc.) in accordance with EXW Incoterms 2020.
5.2 The Company shall make all reasonable efforts to deliver the Products in a timely and diligent manner and in accordance with these General Terms and Conditions as well as with any special conditions that were included in the Agreement with the Customer. Quoted delivery dates are always approximate and indicative and Biobest shall not be liable for any delay in the delivery of the Products however caused. Unless previously agreed in writing by the Parties, delivery time shall not be an essential element of any Agreement and any delay in delivery shall not entitle the Customer to compensation, price reduction, suspension of payment, or dissolution of the Agreement. All Products may be delivered by Biobest in advance of the quoted delivery date.
5.3 For each delivery, the quantity of Products as defined in writing in the delivery documents (e.g., the packing slip or delivery note) by the Company or its contractor at the time of dispatch from the Company’s or its contractor’s place of business shall count as conclusive evidence of the quantity received by the Customer, unless the Customer can provide conclusive evidence of the contrary.
5.4 The following shall not be considered as shortcomings: any small and/or insignificant deviations in quantity, quality, packaging, volumes and/or other similar information that are customary in the sector or technically unavoidable.
5.5 The Customer agrees to accept partial delivery of ordered Products unless mutually agreed otherwise in writing by the Parties. In case of acceptance of a partial delivery of ordered Products, each delivery shall constitute a separate Agreement. Non-delivery by Biobest of one or more Products or any claim by the Customer with respect to one or more Products shall not give the Customer the right to terminate the Agreement.
5.6 The Company shall not be liable for any non-delivery of Products (even if caused by negligence of the Company or its contractor), unless the Customer gives written notice to the carrier of the Products and the Company within fourteen (14) calendar days from the date that the Goods would have been received in the ordinary course of business.
5.7 Any liability of the Company for Products that were not delivered shall be limited to delivering the relevant Goods within a reasonable time or to issuing a credit note against each invoice issued for those Goods.
Article 6: Ownership and risk
6.1 Risk of damage to and theft or loss of the Products shall, unless otherwise agreed between the Parties, pass to the Customer in accordance with EXW Incoterms 2020.
6.2 The legal and equitable right to and ownership of the Products shall not, unless otherwise agreed between the Parties, pass to the Customer until the Company has received in full (i) all sums due to it in respect of the Goods and (ii) all other sums due or to become due to the Company by the Customer on any account whatsoever. Biobest shall be entitled to register the retention of title in the National
Pledge Register insofar as the amounts due (principal, costs and interests) have not been paid in full by the Customer.
Article 7: Warning
7.1 The Customer shall be aware that the trade in and application of the Products require a high level of supervision and expertise. Consequently, the Customer shall comply with all instructions, advice and manuals that Biobest prepared with regard to the transportation, placement, handling and feeding of the Products in order to give the Products the best possible chance to succeed in their intended
use. Biobest reserves the right to modify these instructions, advice and manuals as it deems necessary. The Customer understands that the use of certain pesticides may be detrimental to some of the Products and should, in case of doubt about the compatibility of pesticides with the Products, refer to his usual contact person at Biobest.
7.2 The Customer declares to be in compliance with all applicable legislation regarding the handling, storage and application of the Products. In addition, the Customer declares that he shall not use the Products for any illegal or unauthorised purposes or in violation of any applicable national or supranational law, including, without limitation, any intellectual property laws. The Customer shall immediately notify the Company of any breach of applicable legal provisions or of any illegal, unauthorised use of the Products by third parties.
7.3 Products requiring official authorisations as plant protection products (e.g., under Regulation (EC) No 1107/2009 in the European Union and under similar legislation in other territories) can only be used by parties in possession of a valid license. The Customer shall therefore be responsible and vigilant to supply the Products only, either through sale or through direct application to the crop, to parties in
possession of such valid licenses for using the Products. The Customer shall immediately notify the Company of any unauthorised use of the Products by third parties.
7.4 Biobest shall always be entitled to transfer its rights and obligations under the Agreement to a third party. The Customer shall not be entitled to transfer his contractual rights and obligations, except with the prior explicit written consent of Biobest. The Customer undertakes to resell the Products only in their original packaging and to refrain from any repackaging, fractionating or otherwise modifying
of the original features of the Products. The Customer also undertakes to transmit all instructions, guidelines, and literature received from Biobest to his own customers.
7.5 The Customer shall refrain from reverse engineering any Products or parts of Products. This shall include the rearing or cultivation of any living organism for purposes other than the intended ones.
7.6 As the results of pollination, fertilisation and biological control may depend on multiple environmental and technical conditions beyond the control of Biobest, the Company is unable to guarantee the final result of the operations in which its Products and/or Services are being used.
Article 8: Quality and approval
8.1 Biobest guarantees that the quality of each of its Products and Services corresponds to the specifications on the packaging label, the instruction sheet, or any other documentation supplied with the Products and/or Services.
8.2 The Customer shall thoroughly inspect all Products, upon arrival and before commissioning thereof, for visible defects in terms of quantity and quality. Between the moment of arrival and the moment of commissioning, the Products shall be stored safely and carefully in such a way that no damage can occur to them, in accordance with the instructions on the labels, packaging, and instruction sheets supplied with the Products and further added by Biobest. Following the commissioning, or even partial commissioning, of the delivered Goods, the Customer shall be deemed to have irrevocably and fully accepted the Products and to acknowledge that the Goods are free of any visible defects or non-conformity.
8.3 The Company shall not be liable for any breach of the warranty in Article 8.1 unless:
8.3.1 in the event of visible damage or defects to the Products upon dispatch (i.e., to the shipping boxes / pallets): the Customer gives written notice of the damage or the defect in the delivery documents and subsequently notifies the Company of the damage or the defect before twelve o’clock noon (12:00) of the day after receipt of the Products.
8.3.2 in the event of visible damage or defects to the Products upon receipt (i.e., deviation from the number of units): the Customer (i) gives the Company a written notice, by registered letter, of the damage or the defect within forty-eight (48) hours from the receipt of the Products and (ii) either gives the Company a reasonable opportunity to examine the Goods after receipt of the notice or (if requested by and at the expense of the Company) returns the Goods to the Company’s registered office for examination. If the Customer does not give the Company a written notice, by registered letter, of rejection of the Goods within forty-eight (48) hours of the delivery date, the Customer shall be deemed to have accepted the Goods.
8.4 If the Products were delivered in a visibly damaged or defective condition, the Company shall, at its option, either replace the Products concerned or the damaged or defective part thereof, or refund the price of the Products concerned at the pro-rata rate of the Agreement. At the request and expense of the Company, the Customer shall return the damaged or defective Goods to the Company’s
registered office.
8.5 Any complaints by the Customer about defects in the quality of delivered Products must be notified in writing by registered letter to the Company within a period of five (5) calendar days after the date of discovery of the defect or after the moment upon which the Customer should have discovered the defect, and in any event no later than three (3) months after the date of delivery of the Products. If the notified quality defect is accepted by the Company and arose before the risk of damage to the Products passes to the Customer, the Company shall be responsible for replacing the Products concerned. However, the Company shall not remain liable for any claims relating to consequences of the quality defect of the Products, including, without limitation, claims for damage to crops resulting from pests.
8.6 The Company makes no guarantees as to the final result of the application of the Products to the crop as such outcome may depend on multiple environmental and technical conditions beyond the control of Biobest. However, the Company will provide regular technical advice in order to enable the Customer to use the Products in the best possible way under an Integrated Pest Management Program. In accordance with clause 8.1, the Company warrants the quality of such advice and shall not be liable for any breach of that warranty.
8.7 If at any time and for any reason the total demand for the Products should exceed the total supply of the Products that is available to the Company through its usual sourcing arrangements, the Products that are to be supplied under the Agreement shall be supplied in such quantity as the Company decides to allocate in its sole discretion. In such case, the Company shall not be in breach of the Agreement, negligent or otherwise liable to the Customer if such allocated quantity is less than the quantity ordered by the Customer.
Article 9: Invoices and terms of payment
9.1 Unless otherwise agreed in writing by the Parties, all invoices shall be paid within thirty (30) calendar days from the invoice date, in the currency in which the invoice is drawn up. The payment system used to settle the invoice shall not incur any costs to the Company. All payments shall be made in full without deduction of any right of set-off or counterclaim.
9.2 If the Customer defaults on any payment due under the Agreement, Biobest shall be entitled to take any or all of the following measures:
9.2.1 To, by written notice or via email and without liability, wholly or partially suspend or terminate the Agreement, stop all Products in transit, and discontinue all Services.
9.2.2 To charge the Customer, without further notice, a monthly interest of one percent (1%) on any unpaid amount until full payment is made. When calculating the interest, a part of the month will be considered a full month and ten percent (10%) of the total unpaid amount, with a minimum amount of one hundred and fifty EUROs (€150), will be added to cover collection costs, without prejudice to the
right to claim additional damages.
9.2.3 To settle any amounts due by issuing a credit note, balance or other liability on account of Biobest to the Customer.
9.3 In the event of non-payment, all permitted methods of payment shall expire and all invoices, even if they are not yet due, shall become payable. In such case, Biobest may unilaterally and indefinitely suspend its obligations under the Agreement, without any right to compensation for the Customer.
9.4 Cheques and bills of exchange shall only qualify as payment after their redemption. The drawing and/or acceptance of bills of exchange or other negotiable documents does not imply a novation and does not constitute a deviation from the General Terms and Conditions. The costs of accepting cheques and bills of exchange shall always be borne by the Customer.
Article 10: Exclusion and limitation of liability
10.1 The articles 10.2 to 10.5 below set out the entire liability of the Company (including any liability for the acts and omissions of its Affiliates, employees, agents and subcontractors) vis-à-vis the Customer for any breach of the General Terms and Conditions or arising out of or in connection with an Agreement between the Parties.
10.2 All other warranties, conditions and terms implied by statute or law are, to the extent permitted by law, excluded from the Agreement between the Parties.
10.3 Nothing in these General Terms and Conditions excludes liability for causing death or personal injury or for fraud or fraudulent misrepresentation, or limits such liability in cases where it would be unlawful for the Company to exclude or attempt to exclude its liability.
10.4 Subject to the conditions under articles 10.2 and 10.3:
10.4.1 the Company’s entire liability in contract, tort, misrepresentation, or otherwise arising out of the performance or the intended performance of the Agreement shall be limited to the value of the Agreement exclusive of VAT;
10.4.2 the Company shall not be liable for any wrongdoing except in cases of fraud or wilful misrepresentation, for any indirect, consequential, incidental or special loss, damage, costs or expenses (whether or not the Company has been notified of such loss, damage, costs or expenses), or for any claims for compensation or consequential damages however caused (including, without limitation, caused by
the negligence of the Company or its employees, agents or subcontractors), arising out or in connection with the Agreement; and
10.4.3 the Company shall not be liable to the Customer for any loss of profits, loss of business, loss of business opportunities, loss of revenue, or depletion of goodwill, however caused (including, without limitation, caused by the negligence of the Company or its employees, agents or subcontractors), arising out or in connection with the Agreement.
10.5 The Customer shall hold harmless and indemnify the Company from and against any and all claims by third parties for damage caused by or otherwise related to supplied Products and/or Services, including, without limitation, product liability claims against Biobest in its capacity as manufacturer of the Products, unless such damage was directly caused by a breach of the Agreement or by wilful misconduct on the part of the Company.
10.6 Biobest particularly waives all responsibility for damage to persons, animals, plants or objects inside and/or outside the greenhouses, crops and/or crop areas caused by bumblebees or biological control agents or any other products commercialized by Biobest, if the appropriate precaution and measures are not taken in accordance with Biobest’s advice and customary prudence. The Customer
undertakes to inform his employees, agents, contractors, and any other persons who may potentially come into contact with the Products, that stings from bumblebees and/or biological control agents may cause serious consequences for humans or animals that are susceptible to them. The Customer shall ensure that the greenhouses are not entered by persons who have not been made aware of the
danger involved.
10.7 Biobest waives all responsibility for any use of its Products that deviates from the instructions on the label of the Products or in any written information provided by Biobest. The Customer agrees to always seek, in case of doubt about the use of Biobest’s Products, the advice of Biobest before using the Products.
10.8 Where Biobest acts as an intermediary, the warranty on the supplied Products shall be limited to that granted by the supplier or manufacturer.
Article 11: Confidential Information
11.1 The Customer agrees to keep all Confidential Information in strict confidentiality and not to use or disclose such information to any third party except if and as required by law and subject to prior notification to Biobest. The Customer further agrees to limit access to Confidential Information to those of his employees who have need to have knowledge thereof and who are subject to written
confidentiality obligations that provide at least the same level of protection for the Confidential Information as these General Terms and Conditions.
11.2 Biobest agrees to keep in strict confidentiality and not to disclose to any third party, all sensitive information that is provided by the Customer and that is marked as “confidential”, “proprietary”, or with similar terms.
11.3 Upon termination of the legal relationship between Biobest and the Customer, these confidentiality obligations will continue to apply for an additional period of five (5) years.
Article 12: Intellectual property
12.1 All patents, designs, trademarks, service marks, copyrights and other industrial or intellectual property rights of the Company of whatever nature in respect of the Products, their packaging or other material supplied with the Products shall remain the absolute property of and vested in the Company.
12.2 All Trademarks are registered and unregistered trademarks of Biobest, or of third parties who have licensed their trademarks to Biobest. The Customer shall not reproduce, display or otherwise use any Trademarks without the Company’s prior express written consent. Unless otherwise agreed in writing, the Customer shall not be allowed to use Trademarks, signs and other marks used by the
Company to distinguish his products from the products of other companies, except for trading the Products in their original packaging on which Trademarks, signs and other indications have been affixed by the Company. If the Products are resold, this provision shall also be imposed on the Customer’s buyer and on all subsequent buyers.
12.3 The Customer shall not alter or remove from the packaging of the Products any Trademarks (including, without limitation, any corporate or trade names and labels, luggage tags, or indications of any intellectual property right of whatever nature belonging to the Company) unless expressly agreed upon in writing by the Company or otherwise permitted by law.
12.4 The Customer acknowledges that any marketing of the Products that he undertakes whereby a label, batch number, luggage label, or sell-by date is removed, erased or altered in contravention of this article 12 constitutes a serious breach of these General Terms and Conditions. In such case, the Customer shall bear all legal, financial and judicial consequences that may result therefrom, at his sole
expense and risk.
12.5 The Customer shall refrain from any use of the Products that deviates from the intended use as indicated on the label, on the packaging or on the written information material provided by Biobest. In particular, the Customer shall refrain from any use of the Products that is intended to copy the production process of the Products or to reproduce the Products. This includes, without limitation, the
breeding of bumblebees or other beneficial arthropods for reproductive purposes, the cultivation of micro-organisms that are contained in some of the Products, or the reverse engineering of Products that contain non-living active ingredients and other materials.
12.6 The Customer shall at all times respect, and make reasonable efforts to protect, the intellectual property rights of Biobest. The Customer shall immediately notify Biobest of any infringement by third parties of Biobest’s intellectual property rights of which he becomes aware.
Article 13: Termination
13.1 Without prejudice to any other rights or legal remedies of Biobest, the Company shall have the right to extrajudicially terminate by written notice, either unilaterally and with immediate effect, or after sending a notice of default with a reasonable recovery period if still useful, any Agreement then in force without owing any compensation, if:
13.1.1 the Customer files a claim or Court application in respect of, or calls or convenes a meeting for the approval of, any compensation, compromise, moratorium, scheme or other similar arrangement with his creditors;
13.1.2 the Court appoints an administrator;
13.1.3 the Customer enters into liquidation (whether voluntary or compulsory), or a resolution is passed or a petition filed with the Court for the liquidation of the Customer;
13.1.4 proceedings are commenced in relation to the insolvency or potential insolvency of the Customer;
13.1.5 the Customer ceases or threatens to cease trading;
13.1.6 an event similar to an Insolvency Event occurs in any jurisdiction;
13.1.7 the Company has, at any time, reasonable grounds to believe that, in all probability, an Insolvency Event will occur within thirty (30) calendar days;
13.1.8 the Customer fails to observe or perform any obligation under the Agreement or under any other contract between the Company and the Customer; or
13.1.9 the Customer encumbers or in any way charges any of the Products before ownership thereof passes to the Customer.
Article 14: Applicable law and dispute resolution
14.1 Without prejudice to the Belgian legal provisions on conflicts of law, Belgian law shall apply exclusively to the Agreement, offer, Purchase Orders, quotations, invoices and all possible legal relationships that may arise therefrom. Any application of the Vienna Convention on the Sale of Goods is excluded.
14.2 Both Parties agree to use reasonable efforts to seek an amicable settlement for any disputes that may arise out of or relate to the conclusion, validity, performance and/or termination of the Agreement. If reasonable efforts to do so fail, the Parties shall have recourse to the authority described in article 14.3 hereunder.
14.3 The competent Corporate Courts in the jurisdiction of Biobest’s registered office shall be the sole competent courts.
Article 15: General
15.1 Severability. If any provision of the Agreement or these General Terms and Conditions, or any part of such provision, is declared null and void, this shall not affect the remaining provisions of the Agreement or these General Terms and Conditions, or any part of such provisions. Both Parties shall in such case replace the provision, or any part of such provision, that was declared null and void with a new and valid provision, or with a new and valid part of such provision, that is as close as possible to the original meaning of the Parties and of the Agreement or these General Terms and Conditions.
15.2 Data collection. Biobest may collect, store and use Customer data, including personal data, for the purpose of facilitating its marketing and sale of the Products. The Customer is hereby informed of such data collection, of the storage of the Customer data during and up to five (5) years after the Agreement, of the use of the Customer data for these purposes, and of the Company’s legitimate interest as the basis for the data collection and storage. In this regard, Biobest undertakes to comply, irrespective of its capacity in the processing of the personal data of the Customer, to comply with Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”), as well as with any applicable GDPR-related national legislation on the protection of natural persons with regard to the processing of personal data. For more information, Biobest refers to its privacy policy, which is available on the Biobest website: https://www.biobestgroup.com. Without prejudice to the above, Biobest undertakes not to share any personal data with third parties, other than its IT supplier, without the prior consent of the Customer. The Customer is further aware of the use of such data for the communication of Product and promotional material to the Customer via email or other electronic means unless the Customer notifies Biobest in writing that he does not wish to receive such promotional material. The Customer has the right to access and correct the data that concern him. In case of misuse of the personal data, the Customer may contact Biobest or file a complaint with the competent national data protection authority.
15.3 Waiver. Biobest's failure to enforce any provision of these General Terms and Conditions or an Agreement shall not be deemed a waiver of the right to thereafter enforce that or any other provision of these General Terms and Conditions or an Agreement.
15.4 Force Majeure. Biobest shall not be liable to the Customer for, or be deemed in breach of these General Terms and Conditions or any Agreement by reason of, delay or failure to perform if such delay or non-performance was caused by Force Majeure. In the event of Force Majeure:
15.4.1 Biobest shall, as soon as commercially practicable, notify the Customer of such Force Majeure event provided that Biobest shall incur no liability for a failure to give such notice;
15.4.2 Biobest's duty to perform shall be suspended for the duration of the Force Majeure event;
15.4.3 the time of performance for Biobest shall be extended for a period equal to the duration of said Force Majeure event;
15.4.4 either Party may, in the event that a Force Majeure event should persist for more than ninety (90) consecutive calendar days, by written notice to the other Party cancel an Agreement to the extent that Products and/or Services remain undelivered under said Agreement. Upon such cancellation, Biobest shall have no obligation to deliver and the Customer shall have no obligation to accept delivery
of or to pay for the undelivered Products and/or Services, but the Agreement shall remain in full force and effect in respect of all Products and/or Services delivered that had already been delivered.