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Terms & Conditions

General

  1. These terms and conditions apply to all quotations, advice, contracts and (legal) acts between Spectrum Europe B.V. (hereinafter: “Spectrum”) and their clients (hereinafter: the “ Client”).
  2. These terms and conditions also apply if Spectrum hires any third parties.
  3. The Client's general terms and conditions only apply if Spectrum has explicitly agreed to this in writing.
  4. Any deviating stipulations apply only if recorded in writing.

Quotations and offers

  1. All quotations and offers by Spectrum are without obligation and remain valid for a maximum of thirty (30) days.
  2. Spectrum cannot be held to its quotations or offers if the Client can reasonably be expected to understand that the quotations or offers contain an obvious mistake or clerical error.
  3. If Spectrum has shown or provided a design, sample or an example, this is presumed to have only been shown or provided by way of an indication: the properties of the products to be supplied may deviate from the sample, design or example, unless it was explicitly stated that the product was to be supplied in accordance with the shown or provided sample, design or example.
  4. Prices are exclusive of VAT and exclusive of packaging, insurance and transport and any government levies, unless indicated otherwise.
  5. The Client must, fully, in good time and correctly, apply for and pay all licences, exemptions and other (local) government regulations with regard to transport, delivery or any storage of the goods.

Third parties

  1. Spectrum is authorised to hire third parties and to accept any liability restriction by these third parties on behalf of the Client.

Execution of the contract

  1. Spectrum reserves the right to demand a deposit and determine the level of this deposit. If this is the case the contract will only commence after the deposit of the contract has been received by Spectrum.
  2. Orders are executed as soon as possible but Spectrum's delivery periods are indicative only.
  3. If the execution is delayed by circumstances attributable to the Client, delivery may be extended by the length of the delay caused by these circumstances, without any adverse (financial) consequences for Spectrum and any agreed prices may be increased by the extra costs incurred due to the circumstances attributable to the Client.
  4. The Client must ensure that any information requested/required by Spectrum is provided in good time and that this information is complete and correct.
  5. The Client will ensure that all data, of which Spectrum has indicated that these are necessary or of which the Client should reasonably be expected to know that these are necessary for the execution of the contract, are provided to Spectrum in good time. If the data necessary for the execution of the contract have not been provided to Spectrum in good time, Spectrum will be entitled to suspend the execution of the contract and/or charge the Client any extra costs resulting from the delay at the usual rates.
  6. Spectrum is not liable for any damage, of whatever nature, caused by the fact that Spectrum relied on incorrect and/or incomplete data provided by the Client.
  7. The Client is obliged to take receipt of the purchased goods at the time these are delivered to the Client or at the time these are made available to the Client in accordance with the contract. If the Client refuses the delivery or fails to provide information or instructions, necessary for delivery, the goods will be stored at the risk and expense of the Client (incl. transport, insurance and storage costs).
  8. Spectrum will be allowed to make part deliveries of sold goods with independent value. If part deliveries are made, Spectrum is authorised to invoice each part delivery separately.
  9. If it has been agreed that the contract is executed in phases, Spectrum may postpone the execution of those parts that belong to a next phase, until such time as the Client has approved the results of the preceding phase in writing, or until such time as the Client has paid the invoices relating to the preceding phase.
  10. If, during the execution of the contract, it proves necessary for the proper execution of the contract to change or supplement the activities to be performed, parties will amend the contract accordingly in good time and by mutual consent
  11. If parties agree that the contract is amended or supplemented, it may affect the time of completion of the contract and also the amount originally agreed, without any adverse (financial) consequences for Spectrum. Spectrum will inform the Client of this as soon as possible.
  12. If it has been agreed to make part deliveries and to invoice these parts separately, each part, in so far as a provision does not provide the contrary, is regarded as a separate contract, in particular in respect of provisions relating to payment and guarantee.
  13. Spectrum only guarantees the quality and certain capacities of a product at the time of dispatch, or shipment.

Shipping / delivery

  1. Within the European Union goods are sent and delivered CPT (Incoterms 2011) and outside the European Union DDU (Incoterms 2011).
  2. In addition Spectrum is, in specific cases, allowed to send and deliver goods EXW from Breda (Incoterms 2011).
  3. Any transport of the goods is carried out under the terms and conditions of the relevant transporter and is, at all times, at the expense and risk of the Client.
  4. If applicable, delivery of products is carried out in accordance with special (legal) regulations drawn up by government or manufacturer. If regulations require the use of special transport, Spectrum will choose the mode of transport.
  5. Export control: Buyer agrees that it shall not, without a license or license exception, export or re-export from abroad or within the United States, items produced by Spectrum or its affiliates which are listed on the United States Department of Commerce, Bureau of Industry and Security’s Commerce Control List. Control applies only to items not classified as EAR99. Diversion contrary to U.S. law is prohibited.

Warranty

  1. Goods to be delivered by Spectrum meet the usual requirements and standards that can be reasonably expected at the time of delivery and for the intended normal use of the goods.
  2. The manufacturer's warranty or Spectrum's warranty with regard to the goods applies to the goods.
  3. The warranty will cease if a fault has occurred as a result of or arising from the use of the product contrary to any instructions/regulations for use or instructions/regulations for installation, or instructions/regulations for replacements, but also if the product is used after the use-by date or expiry date or if the product was controlled or used incorrectly. If maintenance or modifications have been carried out on the product by the Client or third parties the warranty will also cease.
  4. Spectrum guarantees that products supplied by them are free from design faults, faulty materials and manufacturing faults for a period of six (6) months after delivery. If a supplied product does have a design fault, faulty material, or manufacturing fault, the Client is entitled to repair or replacement of the supplied product. The Client is only entitled to replacement if the supplied product cannot be repaired.
  5. Spectrum can only be held liable for damage caused as a result of a fault in the supplied product in accordance with the provisions in article 9 (Liability).
  6. The Client is obliged to inform Spectrum, in writing, immediately after a fault has been detected. The Client is obliged to store a faulty part and at Spectrum's request return the faulty part to Spectrum carriage paid.
  7. The warranty becoming void, or Spectrum not yet fully complying with the warranty, does not suspend the Client's payment obligations. If Spectrum does not meet their warranty obligations, their liability is limited to the costs of repair or replacement by third parties, but only if the Client has given Spectrum notice of default in writing and set a reasonable term within which Spectrum is given another opportunity to meet their warranty obligations.

Replacement and start-up

  1. All replacement activities in respect of the filter of the product - hereinafter referred to as "Replacement" - as well as start-up activities - hereinafter referred to as"Start-up" - are at the expense and risk of the Client, unless explicitly agreed otherwise in writing.
  2. The Client will give Spectrum all cooperation that may reasonably be expected.
  3. If Spectrum's representatives, due to circumstances beyond Spectrum's control, are not able to continue with the Replacement or the Start-up or have to work outside normal working hours, any costs arising from this are at the expense of the Client.
  4. After the representatives have completed the work and the products have been started up by them, the Replacement or Start-up is deemed to have been completed. The Client will be given the opportunity to check the Replacement or Start-up and after checks are completed the Client is deemed to have accepted the Replacement or Start-up.

Inspection after delivery

  1. The Client is obliged to examine the supplied product (or arrange for third parties to examine this), immediately at the time the products have been made available to the Client or the relevant work has been completed. For this purpose the Client must examine whether the quality and/or quantity of the supplied product corresponds with what was agreed and complies with the requirements the parties agreed in this respect. Any visible faults must be reported to Spectrum in writing within seven (7) calendar days after delivery. Any non-visible faults must be reported to Spectrum in writing immediately, but in any case at the latest within twenty-one (21) days, after the fault was detected. The reporting of the fault must include a description of the fault to such an extent that Spectrum is able to give an adequate response. The Client must give Spectrum the opportunity to examine a complaint (or arrange for third parties to examine it).
  2. If the Client lodges a complaint in good time, it will not suspend the Client's payment obligations. In this case the Client remains obliged to accept delivery and to pay for the other ordered products and services and for which the Client has given Spectrum instructions.
  3. If the complaint is not lodged within the period of twenty-one (21) calender days, all liability on the part of Spectrum ceases, and the Client's right to repair, replacement or compensation will also cease, unless the Client could, in all reasonableness, not have been aware of the fault any sooner.
  4. Even if the Client lodges the complaint in good time, his obligation to accept delivery and to make payments for completed orders remains. Returns are only possible after Spectrum's written approval. For this purpose the product must be delivered in its original packaging at an address indicated by Spectrum.

Liability

  1. In all cases Spectrum’s liability is restricted to the sum to be paid by the Spectrum's insurer in this respect. In addition to this Spectrum's liability is limited to, at most, the invoice value of the delivery of the relevant service or product. At all times Spectrum's liability is limited to a maximum amount of € 100,000.00 (in words: one hundred thousand Euros).
  2. In no event will Spectrum be liable for any consequential damages or indirect damages.
  3. Damages will only be considered for compensation if these have been reported to Spectrum in writing within fourteen (14) calendar days after detection. Any claims in respect of damages that qualify for compensation, must be submitted within two (2) weeks after it was detected. If compensation is claimed from Spectrum for damages incurred by a third party, including the Client's personnel, in connection with products delivered or services carried out by Spectrum, the Client is obliged to indemnify Spectrum against these claims.

Force majeure

  1. Any shortcomings in the performance of the contract may not be attributed to Spectrum, if these are not Spectrum's fault, or by virtue of the law, the contract or according to generally accepted standards are not Spectrum's responsibility, and do not give the Client the right to terminate the contract or to claim compensation.
  2. Force majeure includes in any case: telecommunication interruptions/interruptions in electronic message services/internet interruptions, unexpected withdrawal of third parties, operational breakdowns, technical defects, shortage of raw materials, transport problems, strike, consequences of natural forces, seasonal factors, weather influences, (for example, frost, storm or heavy snowfall), lockout, etc., including if these problems occur at third parties who were involved by Spectrum for the execution of the contract.
  3. In the event of force majeure the obligations on the part of Spectrum will be suspended. In such cases the Client has neither the right to terminate the contract nor the right to refuse delivery of Spectrum's products afterwards, nor the right to suspend his (payment) obligations towards Spectrum.
  4. If, at the start of the force majeure, Spectrum has already fulfilled part of their obligations, or is only able to fulfil part of their obligations, Spectrum is entitled to invoice the part already delivered or deliverable part separately and the Client is obliged to pay this invoice as if this were a separate contract. However, this does not apply if the parts already delivered or the deliverable part has no independent value in economic transactions.

Intellectual property

  1. All intellectual property rights with regard to drawings, sketches, calculations, images, catalogues, software, advice, analyses, systems and products are vested in Spectrum Laboratories Inc., situated in the United States of America. The Client shall recognise these rights and refrain from any breach thereon, failing which the Client must pay an immediately payable, therefore without any action being required on the part of Spectrum, penalty of € 25,000.00 (in words: twenty-five thousand Euros) per breach and in so far as it concerns a breach that continues over time, € 2,500.00 (in words: two thousand five hundred Euros) per calendar day the breach continues.
  2. If Spectrum request the return of Spectrum's items stated in the previous sentence, the Client is obliged to comply with this request immediately.
  3. The Client undertakes not to copy (nor to arrange for third parties to copy), show or make available to third parties the items described in article 12(a), unless Spectrums' prior written permission has been obtained.
  4. Spectrum states that to the best of their knowledge that the products delivered by them as such do not infringe any Dutch patent rights, design rights, trademark rights, copyrights or any other third party industrial or intellectual property rights. If, nevertheless, third parties are making such claims, the Client will inform Spectrum immediately and fully so that Spectrum is able to provide a proper defence. In that event Spectrum may replace the relevant product by a product that does not infringe that right, or acquire the relevant licensing rights, or take the relevant product back against repayment of the price paid for the product, less the depreciation regarded as usual, without being obliged to pay compensation.
  5. If, in the event of a sale and/or installation based on drawings, designs or other any instruction - in the broadest sense of the word - which were made available to Spectrum by the Client, a trademark, patent or similar right of a third party is infringed, the Client is, in respect of Spectrum, liable for any resulting damages. Spectrum has the right to suspend the sale, delivery, Installation or Start-up as soon as a third party indicates that a right owned by them is being infringed. In such cases the Client is liable for any resulting damages and indemnifies Spectrum against any third party claims.

Software

  1. If software is part of the sale and delivery of the products, the Client will be given a non-exclusive right of use with regard to the delivered software and accompanying documentation. The right of use with regard to the delivered software is limited to the product delivered with this software. The Client is not permitted to install or use the software on any other products.
  2. The issue of sub-licences is not permitted.
  3. All rights with regard to the delivered software and the accompanying documentation, including any copies, are vested in Spectrum.

Rates and Payments

  1. The deposit of fifty (50)% of the total invoice value must be received by Spectrum before Spectrum will commence the contract.
  2. The Client is obliged to pay the invoices within thirty (30) days after the invoice date, in Euros and without any deductions or settlement, unless agreed otherwise in writing.
  3. After this payment term has expired the Client is by operation of law in default; from the moment of default statutory (commercial) interest is payable on the outstanding amount.
  4. From the moment the default occurs, the Client must also pay the extrajudicial collection costs, that Spectrum had to incur for the collection of their debt. These are calculated on the basis of the Extrajudicial Collection Costs (Fees) Decree by virtue of section 6:96 par. 5 of the Dutch Civil Code (BW). This amount will be a minimum of € 250.00.

Right of recovery

  1. On the basis of section 7:39 of the Dutch Civil Code (BW) et seq. Spectrum is entitled to terminate the contract by means of a written statement addressed to the Client, after which Spectrum will be able to claim back the products delivered by them, if the Client has not complied with his payment obligations towards Spectrum within a maximum period of sixty (60) calendar days after the invoice date. If Spectrum, on the basis of this section, claims back the products delivered by them, Spectrum will suffer a loss which is reflected by the decrease in value of the products delivered by Spectrum. In such cases the Client is obliged to, immediately and on demand from Spectrum, pay for the loss suffered by Spectrum.
  2. Spectrum will only be entitled to terminate the contract in the event of default on the part of the Client.

Amendments and cancellation

  1. The contract will not commence until the deposit of fifty (50)% of the total invoice value of the contract has been received by Spectrum. Up to five (5) calendar days after the deposit, the Client may request Spectrum to make an amendment/addition to the contract, except where it concerns products which have been made to order (“custom made”). Spectrum may charge extra costs for this.
  2. Requests for amendments/additions must be made in writing and include a statement of reasons.
  3. If requests for amendments/additions or cancellation is not made in good time, the full costs of the contract will be charged to the Client.
  4. Cancellation of the contract is only possible as long as the products have not yet been sent, unless agreed otherwise in writing.
  5. Any costs Spectrum incurs due to third party involvement are, at all times, at the expense of the Client.
  6. Spectrum has the right, based on reasons of their own, to cancel the contract, in which case the Client is entitled to repayment of the relevant part of the invoice Spectrum's cancellation relates to

Suspension and termination of the contract

  1. Spectrum is authorised to suspend their obligations if the Client does not comply with, has not fully complied or is in danger of not complying with his obligations arising from the contract.
  2. The authorisation to suspend the contract is cancelled if the Client provides sufficient security for the compliance of his obligations for the benefit of Spectrum.
  3. Suspension of the contract does not release the Client from his payment obligations.
  4. If Spectrum suffers damages and/or incurs extra costs due to the suspension of the contract, this will be at the expense of the Client.
  5. Spectrum is not liable for any damage which the Client suffers due to the suspension.
  6. If circumstances occur with regard to persons and/or materials which Spectrum uses or tends to use for the execution of the contract, which are of such a nature that the execution of the contract becomes impossible or inconvenient and/or disproportionately costly to such an extent, that compliance of the contract can reasonably no longer be demanded, Spectrum will be authorised to terminate the contract.

Early cancellation and termination of the contract

  1. The contract may only be cancelled early if this has been explicitly agreed.
  2. Spectrum has the right to terminate the contract if:
    • the Client is likely to be or has been declared bankrupt or if the Client is to be granted a moratorium;
    • if executory attachment is levied on the Client's goods or if he otherwise loses the right to dispose over his goods;
    • any circumstances occur of such a nature that compliance with the contract becomes impossible or if compliance may reasonably no longer be demanded from Spectrum;
    • the Client sells or ceases (a part of) his business activities, irrespective of the reason for the sale or cessation;
    • if there is a force majeure situation which lasts for at least two (2) months.
  3. If the contract is terminated all amounts due from the Client to Spectrum are immediately payable.

Confidentiality

  1. Both parties are bound to secrecy on all confidential information they obtained from each other or from different sources in respect of the contract, unless there is a legal obligation to disclose these data. Information is confidential if this has been notified by the other party or if this ensues from the nature of the information.

Non-competition clause

  1. During the term of the contract and during a period of one (1) year after termination of the contract, the Client is not permitted to employ, or in whatever manner hire or en-ter into negotiations with any of Spectrum's employees or any third parties engaged by Spectrum, without prior consultation with Spectrum, subject to a fine of €5,000.00 per day the breach continues.

Applicable law and settlement of disputes

  1. The legal relationship between Spectrum and the Client is exclusively governed by Dutch law. Disputes will in the first instance be heard by the competent judge of the Zeeland-West-Brabant Court in the Netherlands. Spectrum also has the right to submit the matter to the Court in the Client’s domicile.

Other provisions

  1. Spectrum is, at all times, entitled to amend their prices and rates.
  2. Spectrum has the right to amend these general terms and conditions without any prior notification. In this case the Client has the right to cancel any orders already placed, in so far as these have not yet been (partly) delivered, within eight (8) days after this amendment.
  3. If any provision from these terms and conditions prove to be non-binding in retrospect, this provision is replaced by a provision that is in line herewith as much as possible while the remaining provisions continue to apply in full.
  4. These general terms and conditions are published in various languages. In the event of interpretation differences Spectrum's general terms and conditions in the Dutch language shall at all times prevail.
  5. The applicability of the Vienna Sales Convention (CISG) has been excluded.







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