1.1 Definitions: In these General Terms and Conditions of Sale (these “Conditions”):
“Buyer” means any person, company or other legal entity, that orders or buys Deliverables from ImmunoIVD;
“Contract” shall have the meaning as set forth in Section 1.2 below;
“Deliverables” means any Products, Software or Services supplied by ImmunoIVD;;
“ImmunoIVD” means ImmunoIVD AB, a company incorporated in Sweden and its successors and assignees;
“Products” means test kits and consumables supplied by ImmunoIVD to Buyer in terms of each individual Contract;
“Services” means all advice given and services performed by ImmunoIVD in connection with the Contract;
“Software” means any firmware, software or data compilations (i) identified in the Contract. For the avoidance of doubt, Software shall not include any "open source" firmware, software or data compilations, as any such "open source" firmware, software or data compilations will be subject to the terms and conditions set out in the relevant "open source" license.
1.2 Each order from Buyer which is accepted by ImmunoIVD shall constitute an individual legally binding contract between ImmunoIVD and Buyer, hereinafter referred to as the “Contract”.
The Contract shall be governed in all respects by these Conditions. These Conditions shall supersede and prevail over any other terms and conditions stipulated or referred to by Buyer, and no alteration of these Conditions will bind ImmunoIVD to or form part of any Contract, unless expressly accepted in writing by ImmunoIVD. No previous correspondence between Buyer and ImmunoIVD nor any promotional or sales literature regarding Deliverables (other than those expressly accepted in writing) shall form any part of or be incorporated into the Contract.
3.1 The prices of the Deliverables are as stated in ImmunoIVD’s official price list or as stated in the quotation. The price list is subject to change without notice. Shipping costs are prepaid and added to the invoice except when customers designate their own carrier. All prices are stated net of value added tax (VAT) and other applicable taxes.
3.2 All quotations given by ImmunoIVD are for budgetary reasons only and shall not constitute a binding offer, unless explicitly agreed to by ImmunoIVD. Deliverables are offered subject to availability. ImmunoIVD, at its discretion, expressly reserves the right to reject any orde and/or refuse to sell Deliverables to Buyer.
4.1 Unless otherwise agreed in writing payment in full shall be made to ImmunoIVD in the currency invoiced no later than thirty (30) days from the date of invoice.
4.2 In the event of late payment ImmunoIVD reserves the right: (i) to suspend deliveries and/or cancel any of its outstanding obligations; and (ii) to charge interest at a rate of 2% per month on the unpaid balance as calculated on a day to day basis until the clearing of payment by ImmunoIVD’s bank.
5.1 ImmunoIVD reserves the right to make any change in the specification of any Deliverable which does not materially affect the use, performance or price thereof.
5.2. Subject to the terms of Warranty per Section 10 below, Deliverables may only be returned at ImmunoIVD’s option, and with prior authorization.
6.1 Terms of delivery shall be construed according to Incoterms 2010. Unless otherwise agreed, shipment will be made to Buyer’s premises, into the custody of the designated carrier or agent (i.e., customs broker) or to the agreed destination.
6.2 If Buyer fails to accept delivery of any Deliverable within a reasonable period after receiving notice from ImmunoIVD that they are ready for delivery, ImmunoIVD may dispose of or store the Deliverable(s) at Buyer’s expense.
6.3 Buyer shall notify ImmunoIVD within five working days in writing of any short delivery or defects reasonably discoverable on careful examination. ImmunoIVD’s sole obligation shall be, at its discretion, to replace or repair any defective Deliverables or refund the purchase price of any undelivered Deliverables.
6.4 Where delivery of any Product requires an export license or other authorization before shipment, ImmunoIVD shall not be responsible for any delay in delivery due to delay in, or refusal of, such license or authorization.
7.1 Any time or date for delivery given by ImmunoIVD to Buyer is an estimate of the date on which the Deliverables will be delivered to Buyer. ImmunoIVD will make a good faith effort to meet the delivery date, but time shall not be of the essence with regard to delivery at such time or date. ImmunoIVD shall not be liable for any liability, loss, expense, claim or damage incurred by Buyer arising from any delay in delivery of the Deliverables or any part thereof, and further, without limitation to the foregoing, in no event shall ImmunoIVD be so liable for any indirect or consequential damages or economic loss including, loss of profit, arising from any delay in delivery.
7.2 Buyer shall not be entitled to reject the Deliverables or part thereof based solely on short delivery.
The risk of loss to the Deliverables shall transfer to Buyer in accordance with the agreed delivery terms. Full legal and equitable title and interest in the Deliverables shall pass to Buyer upon full payment. Buyer agrees not to dispose of or resell the Deliverables until it has been paid in full.
All intellectual property rights vested in the Deliverables and any related documentation, as between Buyer and ImmunoIVD, shall remain with ImmunoIVD and no license to manufacture, copy, resell or sublicense, or create derivative works is granted to Buyer. Any data relating to the manufacture or design of the Deliverables as disclosed by ImmunoIVD or otherwise obtained by Buyer in connection with the use of the Products shall be deemed the intellectual property of ImmunoIVD and may not be used or disclosed to third parties without ImmunoIVD’s written consent. Buyer agrees and warrants not to take any action to reverse engineer any the Deliverables.
10.1 ImmunoIVD warrants that (i) ImmunoIVD has good title to the Deliverables and will transfer such title as it may have in the Deliverables to Buyer, and (ii) the Deliverables shall be in accordance with ImmunoIVD’s specifications at the time of shipment or agreed upon specifications (within accepted or stipulated tolerances), with ImmunoIVD’s sole liability and Buyer’s exclusive remedy for a breach of the foregoing warranties is limited to repair, replacement or refund at the sole discretion of ImmunoIVD.
10.2 Warranty with respect to Services. ImmunoIVD warrants that all Services will be carried out with reasonable care and skill. ImmunoIVD’s sole liability for breach of this warranty shall be at its discretion to give credit for or reperform the Services in question.
10.3 Warranty with respect to Software. ImmunoIVD warrants, for a period of three months from the date of delivery that any Software substantially conforms to its published specifications and that the media on which the Software resides will be free from defects in materials and workmanship under normal use; any warranty claim shall be submitted by Buyer in writing within such period. ImmunoIVD does not warrant that the Software is error free or that Buyer will be able to operate the Software without problems or interruptions. ImmunoIVD’s sole liability and Buyer’s exclusive remedy in the event of breach of this warranty is limited to repair, replacement or refund, at the sole discretion of ImmunoIVD.
10.4 All warranty claims shall be made in writing to ImmunoIVD no more than 14 days from discovery of the defect.
10.5 ImmunoIVD hereby expressly disclaims, and Buyer hereby expressly waives, any warranty regarding results obtained through the use of the Deliverables, including without limitation any claim of inaccurate, invalid or incomplete results. ALL OTHER WARRANTIES, REPRESENTATIONS, TERMS AND CONDITIONS (STATUTORY, EXPRESSED, IMPLIED OR OTHERWISE) AS TO QUALITY, CONDITION, DESCRIPTION, MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT (EXCEPT FOR THE IMPLIED WARRANTY OF TITLE) ARE HEREBY EXPRESSLY EXCLUDED.
11.1 ImmunoIVD shall have no liability under the warranties in Section 10 with respect to any defect in a Deliverable arising from: failure to follow any use instructions relating to the Products, or other instructions communicated to the user by ImmunoIVD (whether oral or in writing); customizations per specifications or materials supplied by Buyer; ordinary wear and tear; willful damage or negligence by Buyer or its employees or agents; abnormal working conditions at Buyer’s premises; misuse, alteration or repair of the Deliverables without ImmunoIVD’s approval; or if full payment for the Deliverables has not cleared.
11.2 Neither party shall be liable for any indirect or consequential, or punitive damages of any kind from any cause arising out of the sale, installation, use or inability to use any Deliverable, including without limitation, loss of profits, goodwill or business interruption.
11.3 The total liability of ImmunoIVD arising under or in connection with the Contract, including for any breach of contractual obligations and/or any misrepresentation, act or omission (including without limitation, negligence and liability for infringement of any third party intellectual property rights) shall be limited to damages in an amount equal to the amount paid to ImmunoIVD by Buyer under the Contract.
11.4 The exclusions of liability in these terms and conditions shall only apply to the extent allowed by law.
11.5 ImmunoIVD shall not be bound by any representations or statements on the part of its employees or agents, whether oral or in writing, including errors made in catalogues and other promotional materials.
The Deliverables are sold only for the purpose described in the product documentation relating to the Deliverables. Any other use will void any warranties made by ImmunoIVD in connection therewith. Buyer is solely responsible for compliance with any regulatory requirements relating to Buyer’s use of the Deliverables. In addition, Buyer shall indemnify, defend and hold ImmunoIVD harmless from and against any and all claims, damages, losses, costs, expenses and other liability of whatever nature that ImmunoIVD suffers or incurs by reason of any such unapproved use.
Any diagnostic decisions or decisions relating to clinical and medical treatment shall be at the risk of the Buyer and the respective healthcare providers.
Except where the claim arises as a result of the negligence or breach of representation by ImmunoIVD, Buyer shall indemnify and defend ImmunoIVD with respect to any claim which may be made against ImmunoIVD: (i) arising in connection with Buyer’s use of the Deliverables; and/or (ii) alleging that Buyer’s use of the Deliverables may infringe the intellectual property rights of any third party.
In the event that Buyer becomes bankrupt or, being a company, goes into liquidation, ImmunoIVD shall be entitled to immediately terminate the Contract immediately upon notice and shall have the right to repurchase its Products with a reprocessing and handling fee of 50%, all of which without prejudice to any other rights of ImmunoIVD hereunder.
ImmunoIVD shall not be liable with respect to the nonperformance of any of its obligations to the extent such performance is prevented by any circumstances beyond its reasonable control including but not limited to strikes, lock outs or labor disputes of any kind (whether relating to its own employees or others), fire, flood, explosion, natural catastrophe, military actions, blockades, sabotage, revolution, riot, civil commotion, war or civil war, plant breakdown, computer or other equipment failure and inability to obtain equipment.
Subject to the terms of any separate software license agreement executed by the parties concerning any Software, Buyer is hereby granted a personal, limited non-exclusive license to use the Software solely in object code format and solely for its own internal business purposes subject to the terms contained herein. Buyer shall not: (i) use the Software for purposes other than those for which it was designed; (ii) use the Software in connection with other manufacturers’ products unless such connectivity is authorized in the Product documentation; (iii) grant, assign, sublicense, transfer, or otherwise make available to third parties any access, use or right whatsoever in the Software; (iv) disclose to third parties any information contained in the Software; (v) copy or reproduce the Software (except for one copy for back-up purposes or as may otherwise be permitted by applicable law); (vi) alter or modify the Software; or (vii) reverse engineer, decompile, disassemble or create any derivative works based upon the Software except as expressly permitted by mandatory law.
Buyer and ImmunoIVD shall comply with data protection laws applicable to their respective processing of personal data under the Contract.
18.1 This Contract shall be governed by and construed in accordance with the substantive laws of Sweden. Any dispute arising out of or in connection with this contract shall be resolved by arbitration in Stockholm in accordance with the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce. The language of arbitration shall be English.
18.2 ImmunoIVD shall be entitled to offset any sums owed by Buyer
18.3 In the event of a litigated disputed between the parties, the prevailing party shall be awarded its reasonable attorney’s fees and associated costs.
18.4 In the event that any provision of this Contract shall be held to be invalid or unenforceable for any reason whatsoever, it is agreed that such invalidity or unenforceability shall not affect any other provision of this Contract and the remaining covenants, restrictions and provisions hereof shall remain in full force and effect and any court of competent jurisdiction may so modify the objectionable provision as to make it valid, reasonable and enforceable.