OLFACTOMICS LTD’S GENERAL TERMS OF DELIVERY 11/2019
1. Scope of Application; Definitions
1.1 These General Terms and Conditions shall apply to the sale and purchase of all ASAGAM sensors and other equipment (”Product(s)”) delivered by Olfactomics Ltd, Kampusareena, Korkeakoulunkatu 7, 33720 Tampere Finland, Business Identity Code 2709140-8 (“Olfactomics”) to its clients (“Client”), unless otherwise agreed in writing. The parties specifically agree and acknowledge that all Product(s) are intended for reasearch use only.
1.2 These General Terms and Conditions shall enter into force on 5 November 2019 and shall be valid until further notice.
2. Ordering, Terms of Delivery and Inspection
2.1 Client shall submit orders by electronic online service, electronic mail, or any other manner to the agreed point of contact. Order means a document or other similar request (in whatever mutually agreed technical form), issued by Client where Client requests Olfactomics to provide its Products. A contract shall be deemed concluded once 1) Olfactomics has confirmed or otherwise accepted the order issued by the Client or 2) upon the delivery of the Products subject to Client’s order (“Contract”). Client shall not reschedule or cancel submitted orders.
2.2 The Products, as well as prices, specifications, quantities, delivery times and other relevant issues related to the Products, shall be defined in each Contract. The Product shall fulfil the requirements and characteristics set forth in the Contract and comply with the applicable law and regulations issued by authorities.
2.3 Olfactomics may at its discretion require an advance payment from Client from time to time. Olfactomics may withhold delivery of the ordered product if Client is in delay with any payment.
2.4 Unless otherwise agreed in writing, the terms of delivery for the products shall be EXW (Olfactomics’ facilities in Tampere, Finland) Incoterms 2010.
2.5 Time of delivery is indicated in the Contract as accurately as possible. However, delivery times are estimates only. Olfactomics shall promptly inform Client in writing of any expected delay of the delivery, the reasons and effects thereof as well as the estimated new delivery time if possible. Olfactomics shall not be liable for any loss or damage incurred by Client due to Olfactomics’s failure to meet the delivery times.
2.6 Client shall perform an inspection and quality control of each shipment without delay and latest within fourteen (14) days from the date of the delivery. Client shall without delay inform Olfactomics in writing of all defects, errors and deficiencies (“Defects”) detected in the delivery and shall identify such Defects in sufficient detail.
2.7 Defects, which do not substantially interfere with the use of the Product, shall not prevent the acceptance of the delivery.
2.8 The delivery shall be deemed to be accepted, (a) when Olfactomics has demonstrated that it has corrected all Defects reported by Client in writing which prevented earlier acceptance; or (b) if Client has not presented a written complaint regarding a Defect which prevents acceptance. The criteria mentioned above in this section 2.6 shall not be applied in the acceptance of partial delivery to the extent a Defect in a partial delivery could not have reasonably been noticed prior to the acceptance testing of a later delivered partial delivery.
2.9 Where any valid claim with respect to any of the Products based on any Defect in the quality or condition of the Products or their failure to meet specification is notified to Olfactomics in accordance with these General Terms and Conditions, Olfactomics shall be entitled to replace the defective Products (or the part in question) free of charge or at Olfactomics’s sole discretion, refund to the Client the price of the defective Products, but the Supplier shall have no further liability to the Client.
2.10 This section 2 states the entire liability and obligations of Olfactomics and the sole and exclusive remedy of Client with respect to any alleged or actual Defect in the delivery or the Product.
3. Title, Risk of Loss and Intellectual Property Rights
3.1 The title to the acquired product shall pass to Client upon payment of the purchase price in full to Olfactomics’s designated bank account.
3.2 All risk of loss or damage to the product shall pass to Client in accordance with the terms of delivery specified in section 2.4.
3.3 Olfactomics (or its licensors) shall own all rights in and to the products, including any copyright, patent, trademark, design right, trade secret and any other intellectual property rights whether or not capable of registration. For the sake of safeguarding the product safety of the Products, Client shall not modify, alter, translate, reverse engineer, decompile, disassemble or attempt to discover the technical or mechanical structure of the Products, or use the Product in an application or environment for which it was not intended or not contemplated to, unless otherwise authorized by Olfactomics in writing.
4. Prices; Terms of Payment
4.1 If the price of a Product has not been agreed in the Contract, Olfactomics’s price list effective at the date of order shall apply. The prices are in Euros, unless otherwise agreed by the parties in writing.
4.2 The prices specified in the accepted order are net prices. Value added tax, any taxes, duty of any kind, export/import costs and other levies or delivery costs are not included in the prices and shall be charged separately. If the amount of value added tax or other public charges determined by the authorities or their collection basis change due to changes in regulations or taxation practice, the prices of the products shall be revised correspondingly.
4.3 Unless otherwise agreed in the Contract, Olfactomics shall invoice for the products upon delivery. The terms of payment are thirty (30) days net from the date the invoice was sent. Interest on delayed payments shall be charged at twelve (12) per cent per annum. Each invoice will be deemed accepted within seven (7) days after the invoice date, unless Client has advised Olfactomics in writing by such date of any errors in respect of the relevant invoice.
6. Infringement of Intellectual Property Rights
6.1 Olfactomics shall, at its own expense defend the Client against proceedings presented against the Client claiming that a Product infringes third party intellectual property rights in the agreed country of delivery or use provided that the Client promptly notifies Olfactomics in writing of such presented claims and permits Olfactomics to defend or settle the claims on behalf to the Client and gives to Olfactomics, at the request of Olfactomics, all necessary information and assistance available and the necessary authorisations. Olfactomics shall pay all damages finally awarded in a trial or agreed to be paid to a third party if the Client has acted in accordance with the foregoing.
6.2 Olfactomics shall, however, not be liable if the claim (a) is asserted by a company, which exercises control over Client or which is controlled by Client in the way control is defined in the Accounting Act; (b) results from alteration of the product by Client or from compliance with Client’s instructions; (c) results from the use of the product in combination with any product not supplied by Olfactomics or (d) could have been avoided by the use of a released and equivalent product offered for use by Olfactomics without separate charge.
6.3 Olfactomics disclaims any representations or warranties on the use of the Product in conjunction with any application or product of the Client, nor accepts any liability where such use of the Contract product or performance of the application infringes, may infringe or is alleged to infringe patents or other intellectual property rights of any third parties. Purchase of the Product does not include any license to perform any application of the Client or any third party in any country.
6.4 This section 6 states the entire liability and obligations of Olfactomics and the sole and exclusive remedy of Client and its customers with respect to any alleged or actual infringement of intellectual property right(s).
7.1 Each party shall keep in confidence all material and information received from the other party and marked as confidential or which should be understood to be confidential, and may not use such material or information for any other purposes than those set forth in the Contract. The confidentiality obligation shall, however, not be applied to material and information, (a) which is generally available or otherwise public; (b) which the party has received from a third party without any obligation of confidentiality; (c) which was in the possession of the receiving party prior to receipt of the same from the other party without any obligation of confidentiality related thereto; or (d) which a party has independently developed without using material or information received from the other party.
7.2 Each party shall promptly cease using confidential material and information received from the other party and, unless the parties separately agree on destruction of such material, return the material in question (including all copies thereof), when the Contract has terminated or when the party no longer needs the material or information in question for the purpose stated in the Contract. Each party shall, however, be entitled to retain the copies required by law or regulations.
7.3 The rights and responsibilities under this section 7 shall survive the termination or cancellation of the Contract.
8. Force Majeure
8.1 Neither party shall be liable for delays and damages caused by an impediment beyond his control, which he could not have reasonably taken into account at the time of the conclusion of the agreement, and whose consequences he could not reasonably have avoided or overcome.
8.2 A force majeure event suffered by a subcontractor of a party shall also discharge such party from liability, if subcontracting from other source cannot be made without unreasonable costs or significant loss of time.
8.3 Either party shall without delay inform the other party of a force majeure event in writing. The party shall correspondingly inform the other party of the termination of the force majeure event.
9. Product Liability
9.1 Client shall use the product literature and the technical documentation which Olfactomics delivers to Client. Olfactomics shall indemnify and hold Client harmless against damages finally awarded in actions against Client and instituted by third parties under the applicable product liability legislation in force in designated country of the agreed place of delivery to the extent such awarded damages concern liability for defective Products or negligence of Olfactomics in respect of damage to private property other than product or death or personal injury and which awarded damages have arisen from a defect subsisting in a product at the time of its delivery to Client.
9.2 This section 9 states the entire liability and obligations of Olfactomics and the sole and exclusive remedy of Client and its customers for any product liability claims.
10. Disclaimer of Warranties
10.1 To the fullest extent permitted by applicable law, Olfactomics disclaims all promises, representations and warranties with respect to the Product, including without limitation implied warranties of merchantability, satisfactory quality and fitness for a particular purpose or suitability of the Products for certain use even if Olfactomics has been advised of the possibility of such damages.
11. Damages; Limitations of Liability
11.1 Client represents, warrants and covenants to Olfactomics that:
(i) Client shall comply with with and require its authorized affiliates to comply with all (i) laws regulations and stadards; and (ii) requirements of any regulatory authorities in connection with the use of the Products;
(ii) Client has and will maintain the technical and other requisite competencies to determine, and is solely responsible for determining, the suitability of the Products purchased from Olfactomics for use by Client;
(iii) Client and its authorized affiliates, as applicable, will conduct all necessary tests, comply with all applicable regulatory requirements and obtain all applicable regulatory authorizations, issue all appropriate warnings and information to users with respect to Client’s and its authorized affiliates’ use of the Product.
(iv) Products sold by Olfactomics are for research use only and are expressly not qualified for commercial or therapeutic purposes by Olfactomics. Thus Client assumes all responsibility and liability associated with Client’s use of the Products;
(v) Products have not been tested by or for Olfactomics for safety or efficacy or any other purpose, unless expressly stated in Olfactomics’ catalogues or on the label or other documentation accompanying the Products at the time the Products were sold to Client;
(vi) Olfactomics has not provided, nor does any term in the Contract require it to provide to Client, its affiliates or any third party, any testing results or any other technical or other documentation relating to the Products at any time;
(vii) Olfactomics developed Products and provided Products to Client without expectation that Products would be used in humans or animals;
(viii) nothing in the Contract or these General Terms and Conditions shall be construed as conferring the right to use in advertising, publicity or otherwise any trademarks or any contraction, abbreviation, simulation or adaptation thereof, of Olfactomics, except as expressly set forth herein.
11.2 UNDER NO CIRCUMSTANCES SHALL THE TOTAL LIABILITY OF OLFACTOMICS, ARISING OUT OF OR RELATED TO ANY CONTRACT OR THE DELIVERY OF ANY PRODUCT INCLUDING, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EXCEED FIFTEEN (15) PER CENT OF THE CONTRACT PRICE PAID BY CLIENT TO OLFACTOMICS FOR THE DELIVERY OF PRODUCTS WHICH ARE THE SUBJECT MATTER OF THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN SUCH ACTION).
11.3 Neither Party shall be liable to the other Party for any indirect, incidental, special, punitive or consequential loss or damage, including but not limited to loss of profits or revenue, loss of use, loss of customership, loss of goodwill, cost of capital or investment, damage caused due to decrease or interruption in production or turnover whether arising under these terms and conditions, tort, or any other theory of liability, or otherwise.
11.3 The limitations of liability shall not apply to damages caused by wilful conduct or gross negligence or breach of confidentiality provisions in section 7.
12. Applicable Law; Settlement of Disputes
12.1 All Contracts and these General Terms and Conditions shall be governed by the laws of Finland. The United Nations Convention on Contracts for the International Sale of Goods done at Vienna April 11, 1980 is excluded.
12.2 In the event of any controversy, claim, or dispute arising out of or relation to any provisions of these general terms, the parties shall try to settle those conflicts amicably between themselves within ninety (90) days of either party’s request for amicable settlement negotiations. Should the parties fail to reach a settlement, the matter in dispute shall be finally and exclusively settled by arbitration under the Rules of the Arbitration board of the Finnish Central Chamber of Commerce. The Arbitral tribunal shall be composed of a sole arbitrator and the place of arbitration shall be Tampere, Finland. The language to be used in arbitral proceedings shall be English or Finnish.
12.3 The parties have nevertheless right to claim for outstanding receivables under these terms and conditions at the district court of Olfactomics’s domicile.