Version 1.1/ March 2019
These general terms and conditions (Terms) govern the contractual relationship between Advanced Microfluidics SA, Chemin de la Dent-d’Oche 1A, 1024 Ecublens VD, Switzerland (AMF) and the entity mentioned as the “customer” (Customer, and together with AMF, the Parties) in the purchase order (PO) incorporating the Terms by reference.
1 Services and Equipments
1.1 AMF shall provide Customer with the services (Services), licenses (Licenses) and, as applicable, hardware (Equipment) as further specified in the purchase order (including exhibits and schedules thereof) or equivalent document signed by AMF and the Customer incorporating by reference the Terms (each, a PO and, together with these Terms, the Agreement), as per the indicative planning (if any) specified in such PO (Planning), to the best of its ability using all reasonable skill and care, and always subject to timely and full payment by Customer of the amounts specified in the PO or otherwise agreed upon by the Parties (Fees).
1.2 AMF agrees to assign personnel properly qualified to perform the Services and ensure that its personnel will be properly supervised and controlled. AMF is solely responsible for the payment of all compensation to its personnel, including all legal and contractual benefits, and withholding all applicable taxes and social security contribution, and complying with any applicable employment laws as well as any other employer duties and obligations.
1.3 AMF reserves the right to sub-contract all or part of the Services to third parties. AMF will be responsible for its sub-contractors’ compliance with its contractual obligations.
2 Financial Terms
2.1 Unless otherwise provided for in the relevant PO, AMF shall invoice the Customer (i) based on its standard rates provided upon request and (ii) on a monthly basis. Customer shall pay AMF’s invoices within thirty (30) days.
2.2 Customer shall further reimburse AMF for any reasonable costs and expenses incurred in relation to the provision of the Services.
2.3 Fees and rates indicated by AMF shall be exclusive of all taxes (in particular, VAT) if and as applicable.
2.4 Customer may not offset amounts owed by AMF to Customer against any Fees due to AMF.
3 Other Customer Obligations
3.1 Customer shall provide to AMF all data and information reasonably required by AMF for the proper performance of the Services.
3.2 If Services are to be performed onsite, Customer will permit AMF reasonable access to the relevant site(s) and installations. AMF shall comply with Customer’s rules and regulations, particularly its safety standards and house rules, to the extent they have been properly communicated to AMF before the Services are provided.
4 Intellectual Property
4.1 Unless otherwise provided for in these Terms or the relevant PO, neither Party shall, as a result of this Agreement, acquire any right, title, or interest in any intellectual property and know how that the other Party owns or controls as of the effective date of this Agreement, or that the other Party obtains ownership or control of separately and apart from the performance of this Agreement.
4.2 Unless expressly agreed otherwise in writing, AMF shall be and remain the sole and exclusive owner of all work products resulting from, or provided with, the performance of the Services and all intellectual property rights in relation thereto (the Work Products) and of all intellectual property rights in relation to the Equipment.
4.3 Unless expressly agreed otherwise in writing, if Work Products, including any Deliverables, are assigned to the Customer, assignment of intellectual property rights in relation to these Work Products shall be effective only upon payment by the Customer of all Fees related to the creation thereof and the Customer hereby grants to AMF a non-exclusive, transferable and sublicensable license to use, sell, develop and replicate all Work Products assigned by AMF to the Customer.
4.4 With respect to the Work Products not assigned to the Customer, subject to the payment of all the Fees, AMF hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable license to use such Work Products and, in the event that AMF winds down its activities, to replicate these Work Products, under the terms and as further specified in the relevant PO.
4.5 If any third party brings or threatens to bring a claim against AMF and/or Customer (in which case the latter shall inform AMF with no delay), pursuant to which the Services and/or any Work Products would infringe upon such third parties intellectual property rights, AMF may, at its sole discretion, with prejudice to Section 9 and at its own cost and expense, either (i) change the Services and/or Work Products affected by such claim, so that they no longer infringe upon the third party claimant’s intellectual property rights; or (ii) replace such Services and/or Work Products with substantially equivalent and non-infringing Services and/or Work Products; or (iii) obtain the necessary rights from the third party claimant allowing Customer to continue using the affected Services and/or Work Products; or (iv) if neither of the previous options is reasonably available, terminate the affected Services and/or withdraw the affected Work Products, and terminate the Agreement.
4.6 If and to the extent AMF needs to access and/or to use any resources owned by Customer or licensed by Customer from a third party (in particular, third party software) to provide the Services, Customer hereby grants to AMF a non-exclusive, non-transferable, non- sublicensable and revocable license to access and/or use such resources solely for the purpose of and to the extent necessary to perform the Services. Provided that AMF uses such resources only as permitted under this Section 4.5, Customer shall fully indemnify AMF against any claims by the relevant third Parties, pursuant to Section 9.
5.1 If the relevant PO expressly identifies one or more specific Work Products(s) to be delivered by AMF to Customer but excluding any third party component (Deliverables), and provided the detailed technical specifications of such Deliverables (Specifications) have been set forth by the Parties in writing and approved by AMF in writing, such Deliverables shall constitute on the part of AMF an obligation to deliver a specific result.
5.2 Upon delivery of any Deliverables and with no delay, Customer shall verify whether such Deliverables contain any material non-conformities with respect to their Specifications which have an effective adverse impact on their use by Customer (Non-Conformities).
5.3 If any Deliverable contains any such Non-Conformities, Customer shall notify AMF in writing and within no more than twenty (20) days from the date of delivery, subject to any longer period of time expressly agreed in writing. With its written notification, Customer shall provide a reasonably detailed description of the claimed Non-Conformities.
5.4 AMF shall then correct any Non-Conformities at no additional cost to Customer and within a reasonable period of time, not to exceed thirty (30) days, but always subject to Customer providing to AMF any additional information as may be reasonably required by AMF to identify, reproduce and correct any Non-Conformities, at no cost to AMF. If AMF fails to correct such Non- Conformities within an additional deadline set in writing by Customer, not to exceed ten (10) days, then Customer may have the right to immediately notify AMF in writing of (i) the amount by which the Fees paid for the Deliverables contained uncorrected Non-Conformities will be reduced or (ii) the partial or total cancellation of the relevant PO, but only in case the Non-Conformities affecting the Deliverable amount to material defects justifying such a termination for cause (justes motifs).
5.5 If Customer has not notified any Non-Conformities to AMF within twenty (20) business days from delivery of any Deliverables, or any longer period of time expressly agreed in writing, or if Customer starts to use any Deliverables in production, such Deliverables shall be deemed accepted with no reservation, and Section 4 shall no more apply.
6 Third Party Software
The Services, Work Products and/or Deliverables may include, as the case may be, computer programs, software, software libraries, and other items, such as electronic documentation, that is developed, distributed and / or licensed by third Parties (the Third Parties Software). Customer shall only use Third Parties Software in accordance with the applicable conditions of use, provided such terms are referenced in the PO.
7 Limited Warranty
7.1 Any Service, License, Equipment and/or Work Product is provided AS IS and AS AVAILABLE. To the maximum extent permitted under applicable law, AMF expressly disclaims all warranties, whether express, implied or statutory, including any warranties of merchantability, fitness for a particular purpose, quiet enjoyment and non-infringement of third-party rights.
7.2 In particular, AMF does neither represent nor warrant that the Services, the Licenses, the Equipment and/or Work Products will meet Customer’s requirements, that they will be uninterrupted or error-free, that any errors will be corrected, that it will ensure continued compatibility of any Work Products with any of its own or third party products, even if they are compatible with such products, that any products provided in combination with the such Work Products will always be available and remain available and unchanged.
8 Limitation of Liability
8.1 Each Party’s liability, whether in contract, tort or any other theory of liability, shall be excluded to the maximum extent permitted under applicable law.
8.2 Without prejudice to the generality of the foregoing, each Party disclaims any liability for simple negligence as well as for any indirect damages or losses, whether foreseen or foreseeable, or whether it has been advised of the risk thereof, related to the loss of use, interruption of business, loss of actual or anticipated profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of goodwill, loss of reputation, loss of, damage to or corruption of assets or data, or any other indirect, incidental, exemplary, or consequential damages or losses of any kind, regardless of the form of action, whether in contract, tort or otherwise.
8.3 In no event, a Party’s total liability during any period of twelve (12) months shall exceed the amount of the fees actually paid by Customer during the six (6) months preceding the events giving rise to such Party’s claims.
8.4 The exclusions and limitations under this Section 8 shall extend to the Parties directors, officers, employees, agents, representatives, auxiliaries and subcontractors.
9.1 Each Party (the Indemnitor) shall defend, hold harmless from, and indemnify the other Party (the Indemnitee), its directors, officers, employees and auxiliaries, from and against all liability, loss, cost, damage or expense, including reasonable attorney's fees, resulting from Indemnitor’s use of the Services, the Equipment and/or the Work Products other than as permitted under the Agreement and strictly in accordance with any documentation provided with the Services, the Equipment and/or the Work Products, including any claims made by any third parties (a Claim).
9.2 No indemnification under Section 1 shall be granted unless the Indemnitee (i) informs the Indemnitor in writing of any potential Claim without undue delay; and (ii) allow Indemnitor to join the Indemnitee in the defence and/or settlement of such Claim with counsel of is choice, at its own cost. In any event, Indemnitee shall fully support Indemnitor in the defence and/or settlement of such Claim and provide any information required by Indemnitor, at no charge to Indemnitor.
10 Data Protection
10.1 If the provision of the Services implies the processing by AMF of any personal data forwarded by Customer (Personal Data), AMF and Customer shall fully comply with their respective obligations under applicable data protection laws and regulations.
10.2 In such case, AMF processes Personal Data exclusively for the purpose agreed in this Agreement and only to the extent necessary to fulfil the obligations hereunder, in accordance with Customer’s instructions and without any delegation of such processing to third Parties or subcontractors with Customer’s prior consent; even so, AMF shall ensure proper compliance by such third Parties or subcontractors of the applicable data protection laws and regulations. AMF may not use Personal Data for its own purposes and may not disclose, sell, or otherwise make it accessible to third parties (beyond what has been described in the relevant PO) without the consent of Customer.
10.3 Customer acknowledges and accepts that AMF shall deem any processing of any personal data to which it is granted access by Customer within the frame of the Services (including Personal Data), as permitted under the Agreement, as well as any instructions by Customer with respect to such processing activities as compliant with applicable data protection or data privacy laws and regulations.
10.4 In particular, Customer shall ensure, with respect to any personal data processed by AMF within the frame of the Services, if any, that such personal data has been collected and is being processed in strict compliance with the applicable data protection or data privacy laws and regulations. In particular, Customer shall (i) have, and maintain at all times, valid grounds for the processing of such personal data, (ii) have adopted and implemented appropriate technical and organisational measures to protect such personal data and (iii) have complied and comply with all registration and/or notification requirements, if and as required under applicable data protection or data privacy laws and regulations, prior to granting AMF access to such personal data within the frame of the Services.
10.5 Unless otherwise provided for in the PO, Customer expressly acknowledges and agrees that its personal data processed by AMF within the frame of providing the Services, may be accessed and processed by AMF resources located outside of its jurisdiction, including in jurisdictions which may not have data protection and privacy laws and regulations equivalent to those in Customer’s jurisdiction. In such a case, the Parties shall agree beforehand on the proper documentation and/or processed to be put in place (EU Model Clauses, BCR, etc.).
11.1 For the purposes hereof, Confidential Information shall mean any information disclosed by either Party (as the context requires, the Disclosing Party) to the other (as the context requires, the Receiving Party), either directly or indirectly, in writing, orally, or by inspection of tangible objects that is designated as “confidential”, “proprietary”, or some similar designation. Notwithstanding the foregoing, Confidential Information includes the Agreement, all information about the Disclosing Party’s business and operations, and more generally all information relating to or owned or controlled by the Disclosing Party of which the Receiving Party will acquire knowledge in the performance of the Services. Confidential Information will not, however, include any information which: (i) was made public without restriction prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known without restriction after disclosure by the Disclosing Party through no action or inaction of the Receiving Party; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files, records, and/or other competent evidence immediately prior to the time of disclosure; (iv) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by the Receiving Party’s records.
11.2 The Receiving Party shall not, and shall cause its employees and representatives not to, (a) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information of the Disclosing Party, except to third Parties and only to such extent as such third Parties have a legitimate need to know such Confidential Information for the performance of the Receiving Party’s obligations under the Agreement, or (b) use, reproduce, or copy any Confidential Information of the Disclosing Party, except as necessary to perform or in connection with the performance of the Services or as otherwise set forth in the Agreement.
11.3 All Confidential Information will remain the Disclosing Party’s property and all documents, electronic media, and other tangible items or portions thereof, which contain Confidential Information of the Disclosing Party will be delivered to the Disclosing Party promptly upon the Disclosing Party’s written request.
11.4 Nothing contained in the Agreement will prevent AMF or Customer from complying with applicable privacy The Receiving Party may disclose Confidential Information of the Disclosing Party in connection with subpoenas, court orders, other legal processes, or as otherwise required by law, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement (unless expressly prohibited in writing in such subpoena, court order, or other legal process) prior to such disclosure and takes reasonable steps to protect the Confidential Information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement.
12 Term and Termination
12.1 The Agreement shall enter into force on the date of its execution by the Parties or any other date specifically agreed upon among the Parties in the relevant PO.
12.2 The Agreement shall remain in effect (i) for the term indicated in the relevant PO; or, if no specific term has been agreed on, (ii) completion of all the Services; or (iii) if applicable, acceptance by Customer of all Deliverables specified in the relevant PO, subject to termination in accordance with this Section 12.
12.3 Customer may terminate the Agreement or any PO for convenience at any time, by a 90 day written notice of termination (including by e-mail) to AMF. Customer shall, however, indemnify AMF against any damages incurred by the latter as a consequence of untimely termination (reliance interest / intérêt négatif). Furthermore, if the Parties have specified any Deliverables in the relevant PO, Customer shall fully indemnify AMF (performance interest / intérêt positif), if it terminates the Agreement before completion of such Deliverables.
12.4 If the Parties have not agreed on any Deliverables, AMF may terminate the Agreement for convenience at any time, by written notice of termination (including by e-mail) to Customer. AMF shall, however, indemnify Customer against any damages incurred by the latter as a consequence of untimely termination (reliance interest / intérêt négatif).
12.5 Either Party may terminate the Agreement with immediate effect, in case of any material breach by the other Party, provided that, if such breach may be cured, the terminating Party shall first have given the breaching Party 30 days’ prior written notice (including by e-mail) to cure such breach and may only terminate the Agreement if no cure has been provided within such 30 days’ Any non or underpayment by Customer of the Fees and any breach of the Licenses by Customer (or refusal by Customer to provide documented evidence of compliance with the computation of the Fees based on the Licenses) shall in particular be deemed material breach of this Agreement.
12.6 Upon termination of the Agreement, unless otherwise agreed in writing, all Services and Licenses shall cease. Customer shall immediately (i) cease using or permitting the use of any Work Product and documentation; (ii) shall cause its officers, directors, employees and agents, to uninstall and remove permanently all releases, versions, or copies of any licensed software, if any, and/or derivatives, source code and documentation related thereto, installed on its (their) laptop and desktop computers, servers and/or other electronic devices or IT systems or otherwise accessible (if any); and (iii) return all releases, versions, or copies of any Work Product and documentation related thereto.
12.7 All Fees already paid by Customer shall remain acquired to AMF and are not reimbursable to Customer.
12.8 Sections 2.4, 5.5, 7 to 9, 11, 12.6 to 12.8, 13.3 and 13.4, and 14 shall survive any expiration or termination of the Agreement.
13.1 Any amendment of the Agreement during the term of the Agreement shall be effective only in the form of a written instrument duly executed by both Parties. Requests by Customer to amend the scope of the Services under a relevant PO shall be notified to AMF’s CEO and will only enter into force upon execution by both Parties of an amended or supplemental PO.
13.2 The Agreement, including its Annexes and any other documents expressly referred to therein, contain all of the terms and conditions agreed upon by the Parties relating to the Services and supersede all prior agreements, negotiations, correspondence, undertakings and communications of the Parties, whether oral or written, with respect to such subject matter.
13.3 In the event of a conflict or contradiction between the provisions of the Terms and those of any other contractual documents such as the PO, the Terms shall take precedence, subject to express and specific deviations, deletions or additions contained in the proper section of the PO to that effect.
13.4 If any provision of the Agreement is held to be invalid or unenforceable for any reason, the Parties hereby agree to replace such provision with a valid and fully enforceable provision reflecting the original intent of the Parties to the fullest extent possible. In any event, all other provisions shall remain valid and enforceable to the fullest extent possible.
13.5 The failure of either Party to enforce any of the provision of the Agreement, or any rights thereunder, shall in no way be considered as a waiver of such provisions or rights.
13.6 Neither the Agreement nor any of the rights or obligations thereunder, may be assigned or transferred by a Party to any third party, without the other Party’s prior written consent. Any such purported assignment or transfer shall be null and void. Notwithstanding the above, a party may assign and transfer the Agreement, including any and all of its obligations thereunder to any of its affiliates based in Switzerland, in which case it shall inform the other Party in writing.
13.7 The Agreement shall be binding and inure solely to the benefit of the Parties (and their respective lawful successors and assigns) and nothing therein is intended to or shall confer upon any third party any rights, benefits or remedies of any nature whatsoever.
14 Governing Law and Jurisdiction
14.1 Subject to mandatory applicable law, the Agreement, as well as the Services performed thereunder, shall be governed by and construed in accordance with Swiss substantive law, at the exclusion of its conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention), where applicable.
14.2 Subject to mandatory applicable law, any dispute or controversy arising out of or in relation to the Agreement and/or the Services shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules. The venue shall be Berne and the proceedings shall be conducted in English. Notwithstanding the preceding, nothing in the Agreement shall prevent a Party from seeking injunctive relieve or any other remedy available at law in any jurisdiction in case of any infringement of its intellectual property rights.