General Terms of Sale

1.      Scope and Applicability

BioSense Solutions ApS, Danish reg. No. 38602926 (“BioSense”) is engaged in the development, configuration, manufacture and sale of non-invasive measurement and analytical systems and related products (“Products”).

Unless otherwise expressly agreed in writing, only these General Terms (“Terms”) shall apply between BioSense and its customers (“Customers”) to all sales of Products.

2.      SPECIFICATIONS AND USE OF PRODUCTS

Products are delivered in accordance with agreed specifications. Products are intended for use in research only, and users shall not rely only on readings from Products for any critical uses.

Updates of software integrated in Products for 24 months after BioSense’s delivery of Products are included in the price for Products. Installation of updates will be done locally by Customer and BioSense will assist remotely if needed. After 24 months upgrades of software will always be subject to payment of the applicable purchase price.

BioSense reserve its right to change and update software embedded in Products and PC software used to control and monitor Products.

3.      Delivery of Products

Products are delivered DAP (Incoterms 2020). Deliveries will be handled by DSV or other courier service chosen by BioSense Solutions and send to the address specified on the PO or supplied on the web shop order.  

If BioSense realizes that an agreed delivery week cannot be adhered to, BioSense shall inform Customer and indicate the expected duration of the delay.

BIOSENSE SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DELAY.

Customer shall be entitled to cancel the purchase of delayed Products without incurring any liability, if the Products have not been delivered within a reasonable grace period set by Customer.

4.      SPECIAL CONFIGURATIONS OF PRODUCTS

If Customer requests special configuration of BioSense’s Products (“Configurations”), BioSense shall ensure that ordered Configurations are performed conscientiously and with the optimum utilization of the expertise at BioSense’s disposal.

If a budget has been agreed, BioSense shall obtain Customer’s consent before incurring costs that can reasonably be expected to exceed the total budget.

During the performance of Configurations, BioSense shall produce periodic information, containing a summary of the type of work performed and results achieved, as well as an assessment of the progress made towards completion of the Configuration.

If it becomes apparent that a milestone or deadline will be exceeded to any significant extent, BioSense shall inform Customer.

If either party decides that it no longer wishes to continue with a configuration process, it shall so notify the other party and the parties shall agree a wind down and termination of the configuration process.

BIOSENSE SHALL NOT BE LIABLE IN THE EVENT OF DELAYS NOR IF THE OBJECTIVE OF THE CONFIGURATION IS NOT OBTAINED. 

5.      Intellectual Property Rights

BioSense shall own and retain all inventions, discoveries and such other technology, trade secrets, information and know-how as BioSense shall from time to time own, develop or acquire pertaining to the Products. BioSense’s IPR shall include all designs, methodologies, materials and processes related to the Products and any Configuration thereof.

All intellectual property resulting from the parties’ cooperation in creating any Product or Configuration thereof shall be owned by BioSense and shall constitute BioSense’s IPR.

6.      CONFIDENTIALITY

Any information, such as, but not limited to, information on intellectual property, products, processes, technology, results, materials, designs, prices, and any physical material of a party that is (i) indicated to be confidential, and either (ii-a) marked “confidential” or (ii-b) confirmed in writing within 10 days to be confidential, or (iii) obviously of a confidential nature to the receiving party, shall be treated and maintained as confidential by the receiving party. Information that is, or without breach of the above obligations becomes, part of the public domain; information already in the possession of a party; information received from a third party who was entitled to disclose such information; and information independently developed, shall be excluded as confidential information.

Always subject to the duty of confidentiality, the parties may use each other’s confidential information for purposes within their publicly known field of business, unless the confidential information has been marked “special confidential information” and the parties prior to its disclosure have agreed specific limitations of use in writing. However, Customer shall not without prior written consent be entitled to use BioSense’s confidential information for purposes other than what is necessary for utilizing BioSense’s Products or Configurations.

The duty of confidentiality shall last for 5 years after each disclosure, unless a longer duration has been agreed in writing prior to disclosure. Notwithstanding the foregoing sentence, the above obligations of each party to keep confidential and refrain from using any trade secret of the other party shall remain in effect for as long as such information shall remain a trade secret under applicable law.

Unless otherwise agreed, BioSense shall be entitled to state Customer’s name in BioSense’s list of references.

7.      Prices and Payment

All prices are exclusive of any applicable sales or value added taxes and any import/export dues unless explicitly approved by BioSense. Such taxes and charges will be stated separately on invoices.

Configurations shall be paid for according to (i) an agreed payment schedule with respect to lump sums or, in the absence thereof, (ii) monthly invoices based on BioSense’s rates plus expenses incurred for materials, use of special equipment, travel, deliveries from sub-suppliers, program licenses, etc.

Prices and rates may be adjusted in accordance with price trends once a year as of 1st January.

All payments shall be effected in the quoted currency no later than by the due date of shipment, unless BioSense terms of credit has been accepted in writing by BioSense.

In the event of delayed payment, BioSense shall be entitled to withhold or cease pending deliveries or Configurations. Simultaneously, all outstanding amounts shall fall due regardless of previously granted terms of credit. Any amount not paid when due shall accrue a late payment charge of 1.5% per month or the highest rate allowed by law, whichever is lower.

Until payment has been received in full by BioSense, title to the Products shall remain with BioSense, and BioSense shall, in addition to all other rights and remedies available to it, be entitled to recover possession of the Products.

8.      REGULATORY COMPLIANCE

If any permits or approvals are required for Customer’s use of the Products, Customer shall be responsible for obtaining any such permits or approvals. Customer may not use any such permits or approvals to prevent BioSense from selling Products unless exclusivity for Customer has been explicitly agreed by the parties.

The Product may be subject to laws and regulations related to export control. Customer shall not, without fully complying with all applicable laws and regulations export any Product, allow any Product to be exported or transfer any Product to any person or entity that engages in the research or production of military products, armaments or any instruments of warfare, including biological, chemical and nuclear warfare.

9.      WARRANTY; SUPPORT AND DISCLAIMER OF WARRANTIES

BioSense warrants that for one year, unless otherwise quoted by BioSense or agreed by BioSense’s order confirmation. after the delivery date of a Product (the “Warranty Period”), BioSense shall, as BioSense’s sole obligation and at BioSense’s discretion as to which remedy, repair, replace, offer a price reduction or refund the purchase price of a Product that shall prove to be defective in material or workmanship under normal and intended usage or that shall be found not to be compliant with the agreed specifications for the Product. This warranty shall not cover the cost of labor by Customer’s own employees, agents or contractors in identifying, removing or replacing any defective Product.

During the Warranty Period BioSense shall (a) use commercially reasonable efforts to provide Customer with fixes to imperfections in the Products that cause the Products not to conform in all material aspects to the specifications agreed by the parties in writing (“Bug Fixes”) and that are diagnosed as such and can be replicated by BioSense; (b) provide Customer with Bug Fixes to the Products that BioSense chooses to make generally available to its customers without a separate charge; and (c) respond by telephone or email to inquiries from Customer.

Any obligation by BioSense to support, maintain or bug fix Products after the Warranty Period will be subject to payment to BioSense in accordance with separate support and maintenance terms agreed. BIOSENSE’S LIABILITY FOR SUPPORT AND MAINTENANCE IS LIMITED TO THE MOST RECENT 12 MONTHS SUPPORT AND MAINTENANCE FEE PAID.

Customer must obtain a return material authorization (“RMA”) from BioSense prior to returning any Product. BioSense will arrange for pick-up at customer site unless otherwise agreed upon. BioSense will charge Customer a freight fee if Products are not found to be defective. Reasonable costs incurred by BioSense for failure analysis performed on Customer’s request shall be paid by Customer if the failure is not BioSense’s responsibility. Returned replaced Products shall become the property of BioSense.

The warranty provided herein does not cover damage, defects, malfunctions or service failures caused by:

Customer’s failure to follow BioSense’s environmental, installation, operation or maintenance specifications or instructions;

Customer’s mishandling, abuse, misuse, negligence, or improper storage or operation of any Product, including without limitation use with incompatible equipment;

damage during shipment of any Product after delivery by BioSense; or

power failures, surges, fire, flood, accident, actions of third parties or other events outside BioSense’s control.

Except as specifically set forth in this Agreement, BIOSENSE SELLS PRODUCTS WITHOUT ANY ADDITIONAL WARRANTY WHATSOEVER, AND BIOSENSE EXPRESSLY EXCLUDE ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BIOSENSE ALSO SPECIFICALLY EXCLUDES ALL WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THIRD PARTY RIGHTS.

The Product is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in direct life-support machines, or any other application in which the failure of the Products could lead directly to death, personal injury, or severe physical or property damage (collectively, “High Risk Activities”). BioSense expressly disclaims any express or implied warranty of fitness for High Risk Activities.

10. SPECIAL PROVISIONS REGARDING SOFTWARE AND HARDWARE

The software is covered by the below mentioned general limitations of liability. For the avoidance of doubt it is noted that the software just like the Product as a whole should not be used in clinical trials. BioSense shall not be liable for any loss or damages that occur due to errors or omissions in software image recognition or feature extraction algorithms or any errors or omissions in the segmentation or determining of growth kinetics of microorganisms.

In no event is BioSense liable for loss of data, including if the loss of data is due to errors or omissions of software or if the loss is due to external factors such as computer viruses.

BioSense disclaims any liability for costs, losses and damages owing to any use of hardware and hardware configurations not recommended or approved by BioSense.

11. INFRINGEMENT OF PATENTS

Subject to BioSense’s overriding right to resolve any infringement issue pursuant to any of the alternatives set forth below and to the limitations and exceptions set forth further below, as long as Customer provides BioSense with prompt written notice of such claim or action, offers BioSense sole control and authority over the defense or settlement of such claim or action and provides complete information and reasonable assistance to defend or settle such claim, BioSense shall, at BioSense’s own expense, defend or settle, at BioSense’s option, any claim, suit, action and proceeding brought by any third party (a “Claim”) against Customer alleging that any Product, as used by Customer strictly within the scope and in the countries contemplated by this Agreement, infringes any European Union member state, U.S. or Japanese patent issued no later than 3 months prior to the date of the applicable agreement regarding purchase of Products and shall indemnify Customer against damages and costs, including reasonable legal fees, that a court finally awards against Customer to the extent resulting from any such claim or action.

If any Product becomes, or in BioSense’s opinion is likely to become, the subject of any Claim, Customer shall permit BioSense, at BioSense’s option and expense, to: (i) procure for Customer the right to continue using the Product; (ii) replace or modify the Product so that it becomes noninfringing; or (iii) terminate Customer’s right to use the Product, in which case Customer shall promptly return the Product to BioSense, and BioSense shall refund to Customer the purchase price Customer paid for the Product if this remedy is utilized in the first three years after delivery and thereafter an amount depreciated from the delivery date on a straight-line 60 month basis.

BioSense shall have no liability for any claim of patent, copyright or trade secret infringement that is based on: (i) use of other than the latest version of the Product, if such infringement could have been avoided by the use of the latest version; (ii) use or combination of any Product with any other material, item or system (including but not limited to contributory infringement); (iii) use of any Product in a manner other than that for which it was designed or contemplated as evidenced by the specifications; (iv) any modification by Customer or a third party of any Product that has not been authorized or recommended by BioSense; or (v) any compliance with designs, plans or specifications furnished by Customer or on Customer’s behalf.

Customer shall, at Customer’s own expense, defend or settle, at Customer’s option, any claim against BioSense alleging that any Product purchased by Customer from BioSense as used, modified, integrated, assembled or combined with other components by Customer infringes any patent or other industrial or intellectual property rights and shall indemnify BioSense against damages and costs, including reasonable legal fees, that a court finally awards against BioSense, or BioSense reasonably incurs, to the extent resulting from any such claim or action.

THIS ARTICLE STATES THE ENTIRE LIABILITY OF BIOSENSE AND CUSTOMER’S SOLE AND EXCLUSIVE RIGHT WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT, AND BIOSENSE SHALL HAVE NO ADDITIONAL LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVED INFRINGEMENT.

UNLESS EXPRESSLY AGREED IN WRITING, BIOSENSE DISCLAIMS ANY LIABILITY WITH RESPECT TO INFRINGEMENT OF THIRD PARTY’S INTELLECTUAL PROPRIETARY BY BIOSENSE’S CONFIGURATIONS.

12. LIMITATIONS OF LIABILITY

IN NO EVENT SHALL BIOSENSE BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCI-DENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR BUSINESS INTERRUPTION, LOSS OF DATA OR LOSS OF USE OF SERVICES, BASED ON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, IN CONNECTION WITH THIS AGREEMENT, EVEN IF BIOSENSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL BIOSENSE BE LIABLE FOR THE COST OF PROCUREMENT OF ANY SUBSTITUTE PRODUCT. NOTHING IN THIS SECTION IS INTENDED IN ANY WAY TO LIMIT ANY RECOVERY OTHERWISE AVAILABLE FOR A VIOLATION OF EITHER PARTY’S RIGHTS IN TRADE SECRETS, TRADEMARKS, PATENTS, COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS.

NOTWITHSTANDING THE FOREGOING LIMITATIONS IN NO EVENT BIOSENSE’S CU-MULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT THAT BIOSENSE SOLUTIONS RECEIVED FROM CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE OCCURRENCE OF THE CLAIM GIVING RISE TO THE IMPOSITION OF SUCH LIABILITY.

ANY CLAIMS CONCERNING LOSSES OR DAMAGES SUFFERED BY CUSTOMER SHALL BE MADE AS SOON AS POSSIBLE AFTER CUSTOMER HAS BECOME AWARE OF THE BASIS FOR SUCH CLAIMS AND NO LATER THAN 12 MONTHS AFTER THE DATE OF THE AGREEMENT THE CLAIMS PERTAINS TO.

13. PRODUCT LIABILITY

BioSense shall only be liable for defects caused by defective Products pursuant to the mandatory provisions of the Danish Product Liability Act (Produktansvarsloven). IN NO EVENT SHALL BIOSENSE BE LIABLE FOR ANY OTHER DAMAGE OR INJURY CAUSED BY A DEFECTIVE PRODUCT ON ANY OTHER BASIS.

BioSense shall maintain product liability insurance in a reasonable amount to cover its product liability. BIOSENSE IS ONLY LIABLE TOWARDS CUSTOMER TO THE EXTENT THAT THE CLAIMS ARE COVERED BY BIOSENSE’S PRODUCT LIABILITY INSURANCE. CUSTOMER SHALL INDEMNIFY BIOSENSE FOR ANY PRODUCT LIABILITY CAUSED BY PRODUCTS IN EXCESS THEREOF.

14. FORCE MAJEURE

Neither party shall be liable for any failure to meet any obligation under this Agreement as the result of any cause beyond its reasonable control, including, without limitation, lockouts, labor disruption, fire, riots, accidents to machinery, war, material shortages, failure by any supplier or vendor, bad weather or any other cause generally referred to as a force majeure.

15. VARIOUS PROVISIONS

All obligations, liabilities and limitations that, by their nature, are intended to survive expiration or termination shall remain in effect beyond any expiration or termination.

Except for the right to receive payments, rights and obligations of the parties cannot be assigned.

16. DISPUTES

Unless the parties agree otherwise, any dispute arising out of or in connection with these Terms shall be finally settled in Copenhagen, Denmark, in accordance with the Rules of Procedure of the Danish Institute of Arbitration (Danish Arbitration).

Danish law, except its choice of law rules, shall apply.

Notwithstanding the above, BioSense shall at its discretion be entitled to subject a dispute to settlement under the law and by the appropriate courts of the country in which Customer is domiciled.