Download the General Terms and Conditions
For the performance of laboratory research by means of self-sampling kits and related or other activities of How Are You Diagnostics B.V., having its registered office in Lelystad at Kamerlingh Onneslaan 6, 8218 MA registered with the Chamber of Commerce under number 6049590.
Article 1 Definitions
The following definitions apply in these general terms and conditions:
- General Terms and Conditions: The general terms and conditions as stated below.
- Services: All activities, in whatever form, performed by How Are You Diagnostics B.V. for or on behalf of the Client.
- HAY Diagnostics: How Are You Diagnostics B.V.
- Deelnemer: degene op wiens persoon het laboratoriumonderzoek en daarmee samenhangende werkzaamheden of overige werkzaamheden rechtstreeks betrekking hebben.
- Client: the legal entity or natural person exercising a profession or pursuing a business, who places an order for the performance of laboratory tests and related or other activities and ensures payment thereof. Consumers who order tests via the internet are deemed to meet this description.
- Remote Services: The agreement between the Client and How Are You Diagnostics B.V., whereby by means of an organised system for Remote Services, only one or more techniques for remote communication, such as a website, app or other means of communication, are used for the conclusion of the agreement.
- Remote Purchase: See Remote Service.
- Agreement: Any agreement concluded between HAY Diagnostics and the Client.
- Order: The Contract for the Performance of Services.
- Product: All matters which are the subject of the agreement concluded between the Client and HAY diagnostics B.V.
- In writing: Wherever the term 'in writing' is used in these General Terms and Conditions, this is deemed to include email.
Article 2 Applicability
- These terms and conditions apply to all offers made by HAY Diagnostics and agreements between HAY Diagnostics and the Client, unless expressly agreed otherwise in writing.
Article 3 Offers
- Offers and/or quotations are made in writing and/or electronically and/or through the app and the website.
- All offers and/or quotations of HAY Diagnostics are free of obligation, unless a period for acceptance is set in the offer and/or quotation. If a period for acceptance is set in the offer and/or quotation, the offer and/or quotation will lapse when this period has expired.
- HAY Diagnostics cannot be held to its offers and/or quotations if the Client should have understood, in accordance with terms of reasonableness and fairness and according to generally accepted views, that the offer and/or quotation or a part thereof contain(s) an obvious mistake or slip of the pen.
- If the acceptance differs from that offered in the offer or quotation, including on minor points, HAY Diagnostics will not be bound by it. In such cases, the Agreement will not come into being on the basis of this divergent acceptance, unless otherwise indicated by HAY Diagnostics.
Article 4 Creation of agreement
An agreement with HAY Diagnostics will only be concluded after HAY Diagnostics has confirmed its conclusion in writing, or if HAY Diagnostics has realised the instruction without reservation.
In the case of activities for which, according to their nature and scope, no quotation or instruction confirmation is sent, acceptance of payment shall also be regarded as instruction confirmation.
Article 5 Performance of agreement
- HAY Diagnostics will perform the Agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
- HAY Diagnostics is entitled to have certain work carried out by third parties. The applicability of Article 7:407(2) and 7:409 of the Dutch Civil Code is explicitly excluded.
- The Client shall provide HAY Diagnostics in a timely manner with all information or instructions necessary for the performance of the agreement or which the Client should reasonably understand are necessary for the performance of the agreement. If such information and instructions are not provided or not provided in good time, HAY Diagnostics will be entitled to suspend performance of the agreement. Any additional costs incurred as a result of the delay will be borne by the Client.
- The applicability of Article 7:404 of the Dutch Civil Code is explicitly excluded.
Article 6 Remote Purchase and/or Service
- This provision only applies to Clients who are Consumers.
- In the case of Remote Purchase, delivery must take place within thirty days at the latest.
- In the case of Remote Purchase, the Client shall have the right to revoke the agreement during fourteen calendar days after receipt of the goods delivered by HAY Diagnostics, without giving reasons
- In the case of Remote Purchase, the Client shall have the right to revoke the agreement after thirty calendar days if HAY Diagnostics has not delivered the product within fourteen calendar days, unless the parties have agreed upon a different delivery period.
- In the case of Remote Services, the Customer has the right to revoke the Agreement during fourteen calendar days after the conclusion of the Agreement, without giving reasons. If HAY Diagnostics has not fulfilled its obligation to provide information or has not provided information in the correct form, the Client will be entitled to dissolve the agreement during a period of three months after receipt of the goods delivered by HAY Diagnostics or after the conclusion of the agreement, without giving reasons. If HAY Diagnostics nevertheless complies with the obligation to provide information within those three months, the period of fourteen calendar days will start the day after HAY Diagnostics has complied with that obligation.
- The Client may revoke the Agreement with HAY Diagnostics in a manner chosen by the Client.
- The right of revocation expires when the Service has been fully performed. The right of revocation will also lapse if HAY Diagnostics has commenced the performance of the Service with the explicit prior consent of the Client and if the Client has acknowledged that it will lose its right of revocation as soon as HAY Diagnostics has performed the Service in full.
- If the Client returns the delivered goods, the Client must return the goods in unopened packaging, with all delivered accessories and in their original condition. The shipping costs for returning the goods will be borne by the Client.
- If the Client has exercised its right of revocation, the Client must return the goods within 14 calendar days after the Client has informed HAY Diagnostics that it is revoking the agreement.
- If the Client has exercised its right of revocation, HAY Diagnostics will repay the full amount paid in advance, including the shipping costs, no later than fourteen calendar days after the dissolution of the agreement.
- If the goods are not available, HAY Diagnostics will inform the Client as soon as possible and HAY Diagnostics will refund the amount paid within fourteen calendar days at the latest. If HAY Diagnostics and the Client agree that a good of similar quality and price may be delivered, the shipping costs for returning the goods will be borne by HAY Diagnostics. The above will only apply if the Client makes use of its right of dissolution during the cooling-off period.
- The provisions of this article do not apply if the Agreement pertains to:
- hygienic products of which the Client has broken the seal;
- products and/or services which, with the consent of the Client, have already been delivered within the cooling-off period;
- products and/or services that cannot be returned due to their nature;
- products and/or services that spoil or age quickly;
- products and/or services of a personal nature;
- bespoke products and/or services.
Article 7 Release of body material
- HAY Diagnostics is not liable for the proper transportation of body material in the period before it is collected by How Are You Diagnostics B.V. The Client is responsible for ensuring that the body materials to be submitted originate from the Participant and that they have been collected voluntarily in an appropriate manner in accordance with instructions.
Article 8 Applicability of the Medical Treatment Agreement Act
- No medical treatment agreement will be established between HAY Diagnostics and the Client and/or Participant, as the testing does not directly involve a person. The Participant is in principle not known to HAY Diagnostics.
- Since HAY Diagnostics has no direct contact with the Participant, the nature of the legal relationship precludes the applicability of the following articles of the Dutch Civil Code:
- Article 7:447 (representation of minor),
- Article 7:448 (duty of disclosure),
- Article 7:449 (right not to know),
- Article 7:450 (permission),
- Article 7:451 (recording consent),
- Article 7:459 (privacy of participant),
- Article 7:460 (prohibition of termination),
- Article 7:462 (central liability),
- Article 7:465 (incapacitated),
- Article 7:466 (emergencies).
- The Client shall ensure compliance with the obligations of the care provider under the aforementioned articles of law.
- The nature of the legal relationship does not preclude the applicability of the following articles:
- Article 7:452 (participant's duty to cooperate),
- Article 7:453 (good care provision),
- Article 7:454 (obligation to retain records),
- Article 7:455 (right to destroy records),
- Article 7:456 (right to inspect and copy records),
- Article 7:457 (obligation of secrecy),
- Article 7:458 (data for scientific research),
- Article 7:461 (remuneration),
- Article 7:463 (prohibition on exclusion of liability vis-à-vis the Participant),
- Article 7:467 (anonymous body material).
- The applicability of Article 7:463 of the Dutch Civil Code does not imply a prohibition on the exclusion of liability vis-à-vis the Client as referred to in Article 1 of these general terms and conditions.
Article 9 Termination of assignment by Client
- If the Client terminates the agreement, the Client will pay the rate associated with the performance of the assignment, insofar as performance of the assignment has already commenced. This will not affect the possibility of HAY Diagnostics to claim additional compensation from the Client.
Article 10 Force Majeure
- HAY Diagnostics is not required to comply with any obligation vis-à-vis the Client if HAY Diagnostics is impeded from doing so as the result of a circumstance which is not the result of negligence on its part, and for which it cannot be held to blame in law, by virtue of a legal act or in accordance with generally held opinions, including but not limited to: strikes and/or work stoppages (whether organised by a trade union or unorganised), government measures impeding the production and/or service as well as (whether or not attributable) shortcomings on the part of suppliers as a result of which HAY Diagnostics cannot fulfil its obligations vis-à-vis the Client in whole or in part.
- Even if HAY Diagnostics is already in default, it will be entitled to invoke force majeure.
Article 11 Payment
- Payment must be made within three weeks of the invoice date. Payments must be made to the bank or giro account designated by HAY Diagnostics.
- In the event of late payment, the Client will be in default and will owe default interest of 1% per month, part of a month being deemed a full month, from the due date up to and including the date of full payment. The default interest is also due on the administrative costs mentioned in paragraph 3 of this article and the extrajudicial costs mentioned in paragraph 4 of this article.
- If payment is not made within the period mentioned in paragraph 1, HAY Diagnostics will send a reminder to the Client, in which the Client is granted a period of 14 days to then fulfil its obligations. If the Client fails to pay within the latter term, HAY Diagnostics will send a second and final reminder to the Client, which will include a charge of at least €12.50 for administration costs in addition to the amount due and the default interest. Whether or not such reminders are sent does not alter the fact that the Client is in default and owes default interest.
- If the Client remains in default despite the reminders sent in accordance with paragraph 3, all costs associated with the subsequent collection, both judicial and extrajudicial, will be borne by the Client. The extrajudicial costs are set at a minimum of 15% of the principal sum and the contractual interest due on it, as referred to in paragraph 2 of this article. The extrajudicial costs are at least €25 per collection.
- Each payment by the Client will first serve to settle the default interest owed as referred to in paragraph 2 of this article and then to settle the extrajudicial costs owed as referred to in paragraph 4 of this article. Only after full payment of the default interest and extrajudicial costs owed will a payment by the Client be deducted from the principal amount owed.
Article 12 Preservation of body material
- HAY Diagnostics may store the body material received from the Participant in accordance with the applicable (legal) regulations and periods. The received body material becomes property of HAY Diagnostics provided that the material can no longer be traced back to persons. HAY Diagnostics may destroy this material and/or make it available to third parties for scientific purposes.
Article 13 Liability and indemnity
- In the event that HAY Diagnostics fails imputably in the performance of any obligation incumbent on HAY Diagnostics or commits a wrongful act towards the Client, HAY Diagnostics will only be liable towards the Client for the damage suffered by the Client in this context if the Client can show that such damage is due to intent or gross negligence on the part of HAY Diagnostics and/or its managing employees.
- If the liability of HAY Diagnostics is to be assumed on the basis of the previous paragraph, the liability of HAY Diagnostics shall be limited to the invoice amount with respect to the services delivered per damaging event or series of events with a common cause, on the understanding that liability of HAY Diagnostics is excluded for indirect damage, such as but not limited to loss of profit and loss of turnover.
- Furthermore, HAY Diagnostics will never be liable for damage resulting from the quality of materials used or processed by HAY Diagnostics, or from the use of goods provided to HAY Diagnostics by the Client.
- Without prejudice to the provisions of paragraphs 1 through 3, the total liability of HAY Diagnostics shall never exceed the amount covered by the liability insurer of HAY Diagnostics for each damaging event or series of events with a common cause.
- The Client indemnifies HAY Diagnostics and the (auxiliary) persons engaged by HAY Diagnostics in the performance of its obligations against all claims by third parties on account of damage suffered by such third parties arising from or in connection with the performance of the work carried out by HAY Diagnostics, except in the event of intent or gross negligence on the part of HAY Diagnostics and/or the (auxiliary) persons engaged by HAY Diagnostics in the performance of the agreement. Likewise, (auxuliary) persons of HAY Diagnostics shall be considered 'third parties' within the meaning of this article. In particular, but not exclusively, the Client indemnifies HAY Diagnostics against all claims of Third Parties in the context of damage / loss suffered by said third parties which is the consequence of noncompliance with the obligations pursuant to title 7, section 5 of the Dutch Civil Code by the Client vis-à-vis the participant and/or the participant's due representative.
- As soon as How Are You Diagnostics B.V., its personnel and/or other (auxiliary) persons of HAY Diagnostics are held liable by a third party, HAY Diagnostics will immediately inform the Client to this effect. During any negotiation with the third party or any legal proceedings, HAY Diagnostics and the Client will always consult with each other. The Client will bear the lawyer's fees and other costs associated with conducting such negotiations or any proceedings.
Article 14 Applicable Law and Competent Court
- Every agreement between HAY Diagnostics and its the Client shall be governed by Dutch law.
- To the extent permitted by law, all disputes between HAY Diagnostics and its the Client shall be submitted to the competent court in Lelystad.
- HAY Diagnostics General Terms and Conditions of Legal Entities