General Terms and Conditions for Method Transfer and Use

These General Terms and Conditions for the Biognosys Method Transfer and Use (“GTC”) set forth the terms and conditions under which Biognosys AG (“Proprietor”) will transfer its proprietary method P2 Plasma Enrichment workflow to Recipient (defined below).

 

1.Definitions

Capitalized terms used in this Agreement shall have the meanings assigned to them next to the defined term printed in bold letters. In addition, the following terms shall have the meaning defined in this Section 1:
“Agreement”shall mean the agreement concluded between the Parties, containing these GTC, including any Quote and any other contract documents as agreed between the Parties. In case of conflict or any inconsistencies between the terms of any of the afore listed documents, the terms of Quote shall prevail over GTC; GTC shall prevail over any other contract documents unless it is explicitly stated in other documents that a particular term shall prevail and such document is executed in writing (including by e-signature) by both Parties. Any terms and conditions of Recipient on any of its acceptance forms, purchase order or other documents are explicitly excluded from this Agreement.
“Documentation”shall mean Standard Operating Procedures (SOPs), user manuals, technical manuals, and/or any other materials provided by Proprietor in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Method made available to Recipient and online help information made available via Proprietor’s webpage.
“Effective Date” shall mean the date on which the Recipient’s purchase order is confirmed by the Proprietor.
“Fee” shall mean Method transfer fee as specified in the applicable Quote.
“GTC” shall mean present General Terms and Conditions for the Biognosys Method Transfer and Use.
“Recipient” shall mean the Party identified under the shipping address in the invoice.
“Materials” shall mean Proprietor’s proprietary P2 reagents for processing of samples.
“Method” shall mean Proprietor’s proprietary P2 Plasma Enrichment workflow, the Documentation as well as any other material or information made available to Recipient under or in relation to this Agreement.
“Party” shall mean, as the case may be, Proprietor or Recipient, and Parties shall mean Proprietor and Recipient collectively.
“Quote” shall mean a commercial offer issued by the Proprietor to the Recipient, specifying the applicable transfer and Materials fee, maximum number of hours for the follow up questions / customer support included into the Fee. The Quote may also include additional commercial terms such as payment schedule, applicable discounts, and any optional services or features. Each Quote shall be valid for the period stated therein and shall become binding only upon acceptance by the Recipient and confirmation by the Proprietor.
“Results” shall mean the results of the analysis performed by Recipient with the use of the Method.
“Section” shall mean any of the numbered Sections contained in the GTC.
“Site” shall mean a designated facility of the Recipient to where the Method is transferred and as specified in the applicable Quote or invoice.
“Support” shall mean responding to technical questions about the Method usage, giving advice on interpretation of data, helping to understand and read generated information by the Recipient, and provide guidance on improving such information.

 

2.Transfer of Method
(a) This Agreement is an agreement between Recipient and Proprietor for the rights of use of Method. BY ACCEPTING THE QUOTE, PURCHASING THE TRANSFER AND USING THE METHOD, RECIPIENT AGREES TO THE TERMS AND CONDITIONS HEREIN.
(b) Upon receipt and confirmation of a valid purchase order from the Recipient, the Proprietor shall transfer the Method to the Recipient in accordance with the steps and procedures described in the applicable Quote. The Proprietor shall have no obligation to commence any transfer activities until such purchase order has been received and confirmed.
(c) Method transfer and set-up shall be considered successful if the requirements specified in the applicable Quote related to the test samples are met.

 

3.Grant of Rights

Subject to the terms of this Agreement, Proprietor hereby grants to Recipient a limited, non-exclusive, non-transferable license to use the Method solely for internal research and development purposes at Recipient’s Site (“Agreed Use”). No ownership rights are transferred under this Agreement. It is a one-time Fee license.

 

4.Restrictions and Inspection
(a) Recipient shall not: (i) to make any use of the Method that is not the Agreed Use or that is not any of the intended uses of the Method, as provided for in the Documentation; (ii) use the Method to provide commercial contract research or other services to third parties; (iii) sublicense, assign, or otherwise transfer the Method or any related materials to any third party; (iv) to disclose the Method or related Confidential Information to any third party; (v) to use the Method at any location other than the Site or relocate it without Proprietor’s prior written consent; (vi) to make any use of the Method in a clinical diagnostic setting, to provide a diagnostic service or product, or to otherwise use the Method for clinical diagnostic purposes; or (vii) modify, reverse engineer, or create derivative works based on the Method. Further, Recipient shall not make any unlawful use of the Method.

(b) Recipient agrees to maintain accurate records of its use of the Method. Proprietor shall have the right, upon reasonable notice and during normal business hours, to audit Recipient’s compliance with the terms of this Agreement.

 

5.Fees and Payment

(a) In consideration for the Method transfer and grant of rights as set forth in Section 3 and the delivery of Materials Recipient agrees to pay to Proprietor the Fee as set forth in the applicable Quote. The Fee is not refundable.
(b) Proprietor will issue an invoice with applicable Fee to Recipient on acceptance of the Quote. All invoices for any Fees payable under this Agreement shall be paid by Recipient within thirty (30) days of the date of Recipient received the applicable invoice unless another payment period is stipulated in the applicable Quote or Proprietor’s invoice.
(c) All Fees stated in the Quote and respective invoice shall be exclusive of VAT and other taxes, if applicable, and such VAT and/or taxes shall be borne by Recipient in addition to the respective Fee, with the exception of any taxes due on Proprietor’s income. If Recipient shall be required, pursuant to applicable law, to withhold any taxes at source in the name of Proprietor, any amount withheld shall be offset against the Fees.
(d) If any sum due from Recipient to Proprietor under these GTC and respective invoice is not paid within seven (7) days of its due date then (without prejudice to any other rights and remedies available to the Proprietor) Proprietor reserves the right to charge, and the Recipient agrees to pay, interest on such sum on a day to day basis at the annual rate of 12% (twelve percent) from the date when payment became due until the date on which payment has been received together with any interest which has accrued.

 

6.Intellectual Property

(a) Recipient acknowledges that any and all Intellectual Property Rights which subsist in or arise in connection with the Method anywhere in the world belong to the Proprietor and that Recipient shall have no right in or to the Method or the Documentation save the right to use it as permitted by these GTC and the applicable Quote.
(b) Recipient shall own and retain title to all Intellectual Property Rights that may exist in any of the Results. In particular, for the avoidance of doubt, the Parties agree that discoveries that Recipient makes while using the Method in conjunction with any of its own or third party data or materials, are not considered to be intellectual property of Proprietor. Recipient acknowledges and agrees that it shall itself be responsible for and assume the risk of the accuracy and integrity of the Results.
(c) If and to the extent Recipient provides to Proprietor any suggestions, improvements, modifications, feedback, error identifications or other information related to the Method (the “Feedback”), Recipient hereby grants to Proprietor a fully paid-up, irrevocable, perpetual, transferable, sublicensable, worldwide, non-exclusive license to: (i) use and exploit such Feedback to modify or improve the Method, and (ii) use, copy, prepare derivative works of, display, make, sell and otherwise distribute any products and/or services incorporating or utilizing such Feedback.

 

7.Support; Updates
(a) Proprietor agrees to provide Recipient on request, with a follow up support related to the Method use and interpretation of the Results up to 12 hours of Proprietor’s 1 FTE (full time equivalent) during the first six (6) months of License. If Recipient requires more support, Proprietor will charge additionally for any extra support in accordance with its then current rates which will be communicated to the Recipient in writing before any such support is provided.
(b) The Proprietor shall have no obligation to provide any updates, modifications, enhancements, or improvements to the Method after its transfer. The Fee payable under this Agreement does not include any such updates, modifications, enhancements, or improvements. Any updates, modifications, enhancements, or improvements that may be developed or made available by the Proprietor shall be offered to the Recipient at the Proprietor’s sole discretion, under separate terms and conditions, and subject to an additional fee as determined by the Proprietor.

 

8.Confidentiality

(a) Method, Documentation, the applicable Quote and its terms, as well as any other information disclosed by a Party (the “Disclosing Party”) to the other Party  (the “Receiving Party”) under this Agreement and designated by the Disclosing Party as proprietary or confidential or any similar designation, or which by its nature or the circumstances of its disclosure should be reasonably construed as being confidential (the “Confidential Information”) shall be kept confidential by the Receiving Party and the Receiving Party shall not, without prior consent of the Disclosing Party, disclose such Confidential Information to any third party or use such Confidential Information for any purpose other than to fulfill such Party’s obligations and rights as set forth in this Agreement.

(b) Confidential Information does not include any information that the Receiving Party can show by competent evidence: (i) is public knowledge at the time of disclosure hereunder, or thereafter becomes generally known other than through an act of breach of these GTC by or on behalf of the Receiving Party; (ii) is already known to the Receiving Party prior to its receipt from the Disclosing Party; (iii) was demonstrably developed by the Receiving Party without use of, reference to or reliance upon the Confidential Information of the Disclosing Party; or (iv) was rightfully obtained by the Receiving Party from unrestricted third parties.

(c) Notwithstanding the foregoing, Receiving Party may disclose the Confidential Information to its own employees (collectively, the “Representatives”)  who have a need-to-know such Confidential Information for the sole purpose of fulfilling Receiving Party’s obligations hereunder, and subject to confidentiality obligations equivalent to those stipulated herein. Receiving Party will be liable and responsible for any breach of this Agreement by any of its Representatives.

(d) The Parties expressly agree that: (a) Recipient data and the Results, as well as Recipient’s interest in the Method shall be Confidential Information of Recipient, and (b) the Method shall be Confidential Information of Proprietor and may be used by the Recipient for the Agreed Use.

(e) If required by law, regulation, or court order (and only to such extent), Receiving Party may disclose Disclosing Party’s Confidential Information to a governmental authority or by order of a court of competent jurisdiction, provided that if permissible pursuant to applicable law, reasonable advance notice is given to Disclosing Party, so that Disclosing Party may be provided with a reasonable opportunity to avail itself of legal process to prevent or minimize such disclosure. Without derogating from the aforesaid, the scope of such disclosure shall be limited only to such portion of such Confidential Information that is legally required to be disclosed. Further, any information disclosed pursuant to this Section 8(e) shall not be deemed an exception to Confidential Information as set forth in Section 8(b) above.

 

9.No Warranty, Exclusion and Limitation of Liability

(a) Proprietor warrants that:
(i) it has the right to enter into this Agreement, transfer the Method and (to the best of Proprietor’s knowledge) to grant Recipient a license to use the Method as provided in this Agreement;
(ii) any services provided under this Agreement will be performed with reasonable skill and care and diligence in a good and workmanlike manner and that all of the Proprietor’s personnel engaged in fulfilling its obligations under this Agreement will possess sufficient qualifications and professional competency and experience to carry out such services in accordance with the foregoing standards.
(b) Recipient accepts all responsibility for the selection of the Method to meet its requirements. Proprietor does not warrant that the Method and/or the Documentation will be suitable for such requirements. The Method and Documentation are provided to Recipient as-is and any express or implied representation, warranty or indemnification obligation, including, without limitation, any implied representation or warranty of merchantability, fitness for a particular purpose is hereby expressly excluded to the maximum extent permitted by applicable law.
(c) To the maximum extent permitted by applicable law, Proprietor shall not be liable to Recipient for lost profits, any loss occurring from infringement of patent or other IP rights, loss of business, loss of use, lost savings or other consequential, special, incidental, indirect, exemplary or punitive damages.
(d) The aggregated total liability of the Proprietor towards the Recipient in respect of any cause of action relating to or arising out of this Agreement shall not exceed the total amount of fees payable by Recipient to Proprietor under this Agreement.
(e) In the event of any breach of the confidentiality obligations under this Agreement, or any unauthorized disclosure of the Method to any Third Party by the Recipient, the Recipient shall pay to the Proprietor liquidated damages in the amount of CHF 50,000.
The Parties acknowledge and agree that this amount represents a reasonable pre-estimate of the loss likely to be suffered by the Proprietor as a result of such breach and is not intended to operate as a penalty. Payment of liquidated damages shall be without prejudice to any other rights or remedies available to the Proprietor under this Agreement or applicable law.
(f) The Recipient understands and agrees that unless specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right and remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. Each Party agrees that, in the event of any breach or threatened breach, including if the Recipient breaches Sections 4 and 8 of this Agreement, the non-breaching Party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching Party shall, in addition to any other legal or equitable remedies, be entitled to seek an order for specific performance, or an injunction or similar equitable relief against such breach or threatened breach, without the necessity of posting any bond.

 

10.Term and Termination
(a) This Agreement shall be effective as from the Effective Date. It shall remain in force for as long as Recipient is using the Method (the “Term”).
(b) During the Term, the Agreement may be terminated at any time with immediate effect by giving notice in writing (including by email) to the other Party (i) by either Party if the other Party is in material breach of the Agreement and such breach, if curable, remains uncured for more than fifteen (15) days after the terminating Party requesting the other Party in writing to cure the breach; (ii) by Proprietor if Recipient becomes or is declared insolvent, enters into liquidation or into any debt restructuring or similar proceedings prior to the payment of the Fee due hereunder; and/or (iii) by Proprietor if Recipient fails to pay the Fee that is outstanding for more than thirty (30) calendar days and not paid within fifteen business (15) days from the receipt of a reminder from Proprietor requesting the payment of the outstanding fees.
(c) If either Party is unable to perform its obligations, including a statutory and/or guaranteed obligation due to circumstances beyond its reasonable control (force majeure), the time of performance will be extended by a period equal to the length of time it takes to overcome the force majeure event. Circumstances beyond Proprietor’s reasonable control include, without limitation, war or acts of terrorism, power failures and failures of the internet, data network or telecommunication facilities, failures by Proprietor’s suppliers to meet their obligations as a result of force majeure, measures by public authorities, (cyber) crime, general transport problems and defects in goods, hardware, Method or materials of third parties that Proprietor has used on the Recipient’s instructions. If a force majeure situation lasts for more than sixty days, either Party has the right to terminate the Agreement in writing, without any obligation to pay compensation for damages.
(e) Upon termination of this Agreement, Recipient shall cease all use the Method and destroy all copies of Documents in Recipient’s possession or control.
(f) Except as otherwise expressly provided in this Agreement, Sections 1 (Definitions), 4 (Restrictions), 7 (Intellectual Property Rights), 8 (Confidentiality), 9 (No Warranty, Exclusion and Limitation of Liability), 12 (General Provisions) and 13 (Governing Law and Place of Jurisdiction) shall survive termination of this Agreement. The termination of this Agreement shall not affect the obligations of the Parties accrued during the Term.

 

11.Amendments of the Agreement
Proprietor reserves the right to modify these GTC at any time. Any such modifications will be effective immediately upon posting the revised GTC on the Proprietor’s website. The GTC version valid at the date of Recipient’s purchase of the Method transfer shall be applicable during the whole Term.

 

12.General Provisions
(a) Other than as expressly set forth in this Agreement, no person other than the Parties shall have any rights or benefits under this Agreement, and nothing in this Agreement is intended to confer on any person other than the Parties any rights, benefits or remedies.
(b) Unless otherwise agreed in writing by both Parties, all notices must be in writing, and delivered personally or sent by courier, certified mail (return receipt requested) addressed to the relevant Party(ies) at their respective addresses set forth above for Proprietor and in the purchase order and/or invoice for the Recipient. Either Party may specify a different address to receive notices by providing a notice in accordance with this Section12(b). Notices sent by courier or certified mail are effective upon receipt or 5 business days after dispatch, whichever occurs first. For the avoidance of doubt, operational correspondence and copies of the official notices can be sent to email addresses specified in the Quote and purchase orders.
(c) This Agreement, and any other documents referred to herein, constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, and shall supersede all prior oral and written agreements or understandings of the parties relating hereto. All references to this Agreement shall be deemed to include the Annexes hereto.
(d) No failure to exercise, nor any delay in exercising, on the part of any Party, any right or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy.
(e) Recipient shall not assign this Agreement or any rights or obligations hereunder, including, but not limited to, by way of a business transfer (Vermögensübertragung) or demerger (Abspaltung), to any third party without the prior written consent of Proprietor. Proprietor may assign this Agreement or any rights or obligations hereunder to any third party by giving written notice thereof to Recipient.
(f) Should any part or provision of this Agreement be held to be invalid or unenforceable by any competent arbitral tribunal, court, governmental or administrative authority having jurisdiction, the other provisions of this Agreement shall nonetheless remain valid. In this case, the Parties shall negotiate in good faith a substitute provision that best reflects the economic intentions of the Parties without being unenforceable and shall execute all agreements and documents required in this connection.

 

13.Governing Law and Place of Jurisdiction
(a) This Agreement shall be governed by and construed in accordance with the substantive laws of Switzerland, with the exclusion of the Vienna Convention on the International Sale of Goods dated April 11, 1980.

(b) The exclusive place of jurisdiction for any dispute, claim or controversy arising under, out of or in connection with or related to the Agreement (or subsequent amendments thereof), including, without limitation, disputes, claims or controversies regarding its existence, validity, interpretation, performance, breach or termination, shall be the city of Zurich, Switzerland.