Biovotion Terms and Conditions of Sale of Products and Services (B2B)

1. GENERAL

1.1 In these Terms and Conditions: The Buyer means the person, firm, company or other organization who or which has ordered Products and/or Services from Biovotion AG; Biovotion AG means the company referred to in the final written offer, quotation or order acknowledgement or, if none, the Biovotion AG company making the supply; The Contract means the contract for the sale and purchase of Products and/or Services between Biovotion AG and the Buyer as may be further evidenced by Biovotion’s final written offer, quotation or order acknowledgement and no prior proposals, statements, representations or conditions will be binding on either party; The Equipment means all electronic equipment, hardware and other electronic or mechanical items agreed to be supplied by Biovotion AG, excluding any consumables and spare parts sold separately; The Goods means all items agreed to be supplied by Biovotion AG other than the Equipment and Software; The Products means any Goods, Equipment or Software agreed to be supplied by Biovotion AG; and The Services means all advice given and services performed by Biovotion AG; and The Software means any firmware, software or data compilations (i) identified in the Contract or (ii) provided to Buyer by Biovotion AG in connection with installation or operation of the Equipment. 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 These Terms and Conditions shall be incorporated into the Contract and shall apply to the exclusion of any conditions of the Buyer. These Terms and Conditions may not be varied or waived except with the express written agreement of Biovotion AG. The failure of Biovotion AG to enforce its rights under the Contract at any time, for any period of time, shall not be construed as a waiver of any such rights.

2. PRICES AND QUOTATIONS

The price of the Products and/or Services will be Biovotion AG's quoted price, exclusive of any duties, but exclusive of value added or other taxes. All quotations issued by Biovotion AG for the supply of Products and/or Services shall remain open for acceptance for the period stated in the quotation or, if none is stated, for sixty (60) days. In all other cases, prices payable are those currently in effect in Biovotion AG´s then current pricelist, which may include charges for handling, freight, packaging, insurance and minimum orders.

3. PAYMENT

3.1 Unless otherwise agreed in writing, the Buyer shall make payment to Biovotion AG in full, without any set-off: (i) no later than thirty (20) days from the date of invoice, in the currency invoiced; (ii) solely via electronic funds transfer originating from or cheque drawn on Buyer’s account held in the country of Buyer’s principal place of business.
3.2 In the event of late payment, Biovotion AG reserves the right: (i) to suspend deliveries and/or cancel any of its outstanding obligations; and (ii) to charge interest at the lower of (a) an annual rate equal to eight (8) % and (b) any applicable maximum statutory rate on all unpaid amounts calculated on a day to day basis until the actual date of payment.

4. CHANGES AND RETURNS

4.1 Biovotion AG reserves the right, subject to prior written notice, to make any change in the specification of the Products, which does not materially affect the performance or price thereof.
4.2 Products may only be returned with prior authorization from Biovotion AG.

5. DELIVERY/INSTALLATION/ACCEPTANCE

5.1 Any term of delivery shall be construed according the latest edition of Incoterms. If no other term of delivery has been specified in the Contract the Products will be delivered DAP to Buyer’s premises or to the agreed destination.
5.2 Partial deliveries and related invoicing shall be permitted. If the Buyer fails to accept delivery of the Products within a reasonable period after receiving notice from Biovotion AG that they (or any part of these) are ready for delivery, Biovotion AG may dispose of or store the Products at the Buyer's expense.
5.3 Biovotion AG will use all reasonable endeavours to avoid delay in delivery on the notified delivery dates. Failure to deliver by the specified date will not be a sufficient cause for cancellation, nor will Biovotion AG be liable for any loss or damage due to delay in delivery.
5.4 The Buyer shall notify Biovotion AG in writing within five (5) working days of delivery of any short delivery or defects reasonably discoverable on careful examination. Biovotion AG’s sole obligation shall be, at its option, to replace or repair any defective Products or refund the purchase price of any undelivered Products.
5.5 Where delivery of any Product requires an export license or other authorization before shipment, Biovotion AG shall not be responsible for any delay in delivery due to delay in, or refusal of, such license or authorization.

6. RISK AND TITLE

6.1 The risks of loss of and damage to the Products shall transfer to Buyer in accordance with agreed delivery term. Full title to the Goods and Equipment shall pass to the Buyer on full payment. In case of non-payment by the Buyer, Biovotion AG, without prejudice and in addition to any rights it has under Section 3.2 or otherwise, may take back all or part of the Goods and Equipment and dispose of these in any way it seems fit with a view to mitigating the consequences of the non-payment by Buyer (to avoid doubt all depreciation, de-installation and other costs will be borne by the Buyer.)
6.2 In relation to any Equipment used for clinical or medical purposes, the Buyer shall keep adequate written records of the identity of any person or entity to whom the Equipment is transferred and of the location of such Equipment and shall procure that any purchaser of such Equipment is subject to the same requirement in respect of any onward sales.

7. SERVICES

7.1 Where Biovotion AG is to provide Services, the Buyer shall ensure that adequate and safe facilities exist at its premises and that BIOVOTION AG is properly notified of any relevant regulations.
7.2 If the Buyer has purchased a Product or Service including remote access support, the Buyer shall permit BIOVOTION AG to connect to the Products by remote access as may be beneficial to the performance of maintenance or repair activities as part of BIOVOTION AG’s warranty obligations or otherwise. This may include automatic software downloads and proactive monitoring and access to performance data related to the products, to gather and use products and resource usage data in various ways such as product development, quality initiatives, benchmarking and reporting services.

8. RESTRICTED USE

8.1 With respect to certain Products, use restrictions are a condition of the purchase which Buyer must satisfy by strictly abiding by the restriction as set forth in Biovotion AG’s catalogue and/or on the Product and/or accompanying documentation. Buyer is solely liable to ensure compliance with any regulatory requirements related to the Buyer's use of the Products. Any warranty granted by Biovotion AG to the Buyer shall be deemed void if any Products covered by such warranty are used for any purpose not permitted hereunder. In addition, the Buyer shall indemnify Biovotion AG and hold Biovotion AG harmless from and against any and all claims, damages, losses, costs, expenses and other liability of whatever nature that Biovotion AG suffers or incurs by reason of any such unintended use.
8.2 With respect to Products regulatory approved for clinical and medical use, any decisions relating to treatment and use shall be at the risk of the Buyer and the respective healthcare providers.

9. GENERAL WARRANTY

9.1 Section 9.2-9.5 shall apply in the event no other specific warranty has been agreed in the Contract. As regards any Products covered by a warranty issued by a third party manufacturer, such warranty terms shall apply to the exclusion of Section 9.2-9.5.
9.2. Goods – Biovotion AG warrants that its Goods meet Biovotion AG’s specifications at the time of delivery. All warranty claims on Goods must be made in writing within ninety (90) days of receipt of the Goods. Biovotion AG’s sole liability and Buyer’s exclusive remedy for a breach of this warranty is limited to repair, replacement or refund at the sole option of Biovotion AG.
9.3 Equipment - Biovotion’s Equipment of its own manufacture is warranted from date of delivery, if later, to be free of defects in workmanship or materials under normal usage for a period of one (1) year and any claim shall be submitted in writing within such period. Biovotion AG’s sole liability and Buyer’s exclusive remedy for a breach of this warranty is limited to repair, replacement or refund at the sole option of Biovotion AG. Such repairs or replacement will not extend the warranty period.
9.4 Software – Biovotion AG warrants, for a period which is the longer of: (i) three (3) months from the date of delivery or; (ii) in the event the Software is intended to be installed and run on Biovotion’s Equipment of its own manufacture, twelve (12) months from the date of delivery, that the 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 and any claim shall be submitted in writing within such period. Biovotion AG does not warrant that the Software is error free or that Buyer will be able to operate the Software without problems or interruptions. Biovotion AG´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 option of Biovotion AG.
9.5 Services – Biovotion AG warrants that all Services will be carried out with reasonable care and skill. BIOVOTION AG’s sole liability for breach of this warranty shall be at its option to give credit for or re-perform the Services in question. This warranty shall only extend for a period of ninety (90) days after the completion of the Services and any claim shall be submitted in writing within such period.
9.6 To the maximum extent permitted by applicable law Biovotion AG hereby expressly disclaims, and Buyer hereby expressly waives, any warranty regarding results obtained through the use of the Products, including without limitation any claim of inaccurate, invalid, or incomplete results. All other warranties, representations, terms and conditions (statutory, express, implied or otherwise) as to quality, condition, description, merchantability, fitness for purpose or noninfringement (except for the implied warranty of title) are hereby expressly excluded.

10. LIMITATION OF LIABILITY

10.1 Biovotion AG shall have no liability under the warranties contained in Section 9 in respect of any defect in the Products arising from: specifications or materials supplied by the Buyer; fair wear and tear; wilful damage or negligence of the Buyer or its employees or agents; abnormal working conditions at the Buyer's premises; failure to follow Biovotion AG's use restrictions or instructions (whether oral or in writing); misuse or alteration or repair of the Products without Biovotion AG's approval; or if the Buyer is in breach of its payment obligations under this Contract.
10.2 Subject to any express obligation to indemnify, 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 Product or Service, nor for, without limitation, loss of profits, goodwill or business interruption.
10.3 The total liability of Biovotion AG arising under or in connection with the Contract, including for any breach of contractual obligations and/or any misrepresentation, misstatement or tortious 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 Biovotion AG under the Contract.
10.4 The exclusion of liability in these Terms and Conditions shall only apply to the extent allowed according to applicable law.

11. INTELLECTUAL PROPERTY RIGHTS

11.1 Where the Buyer supplies designs, drawings, and specifications to Biovotion AG to enable it to manufacture non-standard or custom made Products, the Buyer warrants that such manufacture will not infringe the intellectual property rights of any third party. 11.2 All intellectual property rights in the Products and/or Services shall at all times remain vested in Biovotion AG or its licensors.

12. DATA PROTECTION

12.1 The Buyer and Biovotion AG shall comply with local and European data protection laws applicable to their respective processing of personal data under the Contract.
12.2 Where Biovotion AG may process personal data stored in Equipment or Software when performing the Services, the following provisions shall apply:
(i) The Buyer has the sole and exclusive authority to determine the purposes and means of the processing of personal data by Biovotion AG. Biovotion AG shall process such personal data only for the purposes of providing the Services in accordance with the Buyer’s instructions.
(ii) The Buyer shall endeavour to limit the disclosure of personal data to Biovotion AG to that reasonably necessary to perform the Services.
(iii) Biovotion AG shall keep personal data confidential and shall implement technical and organizational measures to protect it against accidental unlawful or unauthorized destruction, loss, alteration, disclosure or access.
12.3 Prior to returning any equipment to Biovotion AG, the Buyer shall decontaminate it and ensure that all personal data is deleted. The Buyer acknowledges that, in any case, all data and settings stored in the returned equipment may be deleted by Biovotion AG.
12.4 Prior to and during the Contract, the Buyer may provide Biovotion AG with personal data relating to individuals involved in the use of the Products or Services. The Buyer consents to the processing of this personal data by Biovotion AG, its affiliates and their respective suppliers, and shall, to the extent legally required, provide appropriate notice to each individual using the Products or Services or obtain requisite consent to such processing of his or her personal data for the following specific purposes:
(i) performing the Contract;
(ii) providing information about Biovotion AG’s products and services;
(iii) transferring personal data as specified in Section 12.5 and (iv) satisfying legal or regulatory requirements.
12.5 Biovotion AG may transfer personal data relating to users, the Buyer’s personnel or other individuals involved in the use of Products and Services to recipients located in countries outside of the European Economic Area and to the extent the Buyer is the data controller of such data, the Buyer will
(1) provide appropriate notice to the relevant individuals,
(2) obtain any requisite consent,
(3) provide individuals with applicable choices with respect to the use, disclosure or other processing of their personal data, and
(4) provide individuals with the opportunity to exercise their right to access their personal data. Biovotion AG has taken steps to provide adequate protection with respect to personal data sent outside of the European Economic Area.
12.6 The Buyer agrees that Biovotion AG may process certain de-identified and/or aggregated data for the purposes described in Section 7.2.

13. HEALTH AND SAFETY

The Buyer shall ensure that: (i) the Products (provided such Products comply with its specifications) are suitable and safe for the Buyer’s intended use; (ii) the Products are handled in a safe manner. (iii) containers, packaging, labelling, equipment and vehicles, where provided by the Buyer, comply with all relevant national and international safety regulations.

14. INDEMNITIES

Except where a claim arises as a direct result of the negligence or breach of contract of Biovotion AG, the Buyer shall indemnify Biovotion AG in respect of any claim which may be made against Biovotion AG: (i) arising in connection with the Buyer’s unintended use of the Products; (ii) alleging that the Buyer´s use of the Products infringes the intellectual property rights of any third party.

15. INSOLVENCY

In the event that the Buyer becomes insolvent or applies for bankruptcy or, being a company, goes into liquidation (other than for the purposes of reconstruction or amalgamation), Biovotion AG shall be entitled immediately to terminate the Contract without notice and without prejudice to any other rights of Biovotion AG hereunder.

16. ASSIGNMENT - SUBCONTRACTING

Seller may assign or novate its rights and obligations under the Contract, in whole or in part, to any of its affiliates or may assign any of its accounts receivable under this Contract to any party without Buyer’s consent. Buyer agrees to execute any documents that may be necessary to complete Seller’s assignment or novation. Seller may subcontract portions of the work, so long as Seller remains responsible for it. The delegation or assignment by Buyer of any or all of its rights or obligations under the Contract without Seller’s prior written consent (which consent shall not be unreasonably withheld) shall be void.

17. FORCE MAJEURE

17.1 A party shall not be liable in respect of the non-performance 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 labour disputes of any kind (whether relating to its own employees or others), fire, flood, explosion, natural catastrophe, military operations, blockade, sabotage, revolution, riot, civil commotion, war or civil war, acts or threats of terrorism, plant breakdown, computer or other equipment failure and inability to obtain equipment.
17.2 If an event of force majeure exceeds one (1) month a Party may cancel the Contract without liability.

18. SOFTWARE LICENSE

Unless a separate software license agreement has been concluded concerning the Software, the Buyer is hereby granted a 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. The 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, transfer, or otherwise make available to third parties any 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.

19. EXPORT CONTROL

The Buyer undertakes not to re-export the Products without the requisite export license from the relevant body of the United Nations or other similar international organization, the United States Government, the country of origin or the original country of export. The requirement to obtain a license may vary depending on the country of destination, the end user, the end use and other factors. Upon request from Biovotion AG the Buyer shall furnish Biovotion AG with copies of all documents relating to such re-export.

20. WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT (WEEE)

20.1 Where the Buyer sells, disposes of or otherwise transfers the Equipment to any third party and where this would unreasonably increase the cost of the collection, treatment or recycling of the Equipment for Biovotion AG under applicable WEEE legislation, Buyer shall be liable to Biovotion AG and indemnify Biovotion AG for such increased costs.
20.2 Should the Equipment that Buyer acquires from Biovotion AG be Equipment, which is intended to replace on a 'like for like'-basis, any item of Buyer’s existing equipment (e.g. the new Equipment is of an equivalent type or is fulfilling the same function as Buyer’s existing equipment) Buyer must in respect of such existing equipment have clearly indicated to Biovotion AG the following: the brand, type, age, condition, current use and the exact location and all other relevant information. In the event Buyer has not complied with such obligations, Biovotion AG may charge Buyer such reasonable additional fees to reflect any related obligations it may have under national legislation regarding the recycling, reuse and/or disposal of such existing equipment and related costs it may incur.
20.3 Unless the relevant mandatory national legislation provides otherwise, or unless otherwise agreed in writing, Biovotion AG´s obligation does not include without limitation, creation of physical access to the equipment; de-installation; decoupling; disinfecting; transportation to a ground level loading area or -ramp; packing; or any related similar activities; and Buyer agrees to perform such activities at its own cost as and when required.

21. GOVERNING LAW

This Contract shall be governed by and construed in accordance with Swiss law.