GENERAL TERMS OF SALES OF BYONOY GmbH
(hereinafter referred to as “Byonoy”)
1 SCOPE OF APPLICATION
1.1 These general terms of sale ("Terms of Sale") apply to the sale of components, instruments or other products which may either be delivered alone or in combination with software or software packages, or spare parts and consumables (all together hereinafter referred to as the “Products”).
1.2 The customer agrees, at the time of the order, to comply with these Terms of Sale. Deviations can only be agreed upon in writing. Purchasing terms of the customer are only binding for Byonoy if explicitly accepted in writing.
2 QUOTE AND ACCEPTANCE, CONFIDENTIALITY
2.1 Byonoy’s quote for the delivery of Products is valid only for thirty (30) days from receipt by the customer, unless agreed otherwise.
2.2 All offer and project documents shall not be passed on to third parties unless Byonoy explicitly agrees in writing.
2.3 The purchase contract is concluded upon acceptance of the quote by the customer in writing (including e-mail). In the case of acceptances by means of telephone, Byonoy shall confirm such acceptance in writing within five days.
3 PRICES AND DELIVERY
3.1 Byonoy’s prices in the quotes do not include VAT, shipping costs, customs duty and insurance costs.
3.2 All Products are delivered to the customer from Byonoy’s factory or stock (FCA, Incoterms 2010).
3.3 Notwithstanding anything to the contrary in these Terms of Sale, Byonoy shall not be liable to the customer for any loss or damage which may be suffered as a direct or indirect result of its supply of Products to the customer being prevented, hindered, delayed or rendered uneconomic by reason of circumstances or events beyond Byonoy's reasonable control (each a "Force Majeure Event") including (without limitation) strike, unavailability of raw materials, compliance with any applicable laws, rules, regulations or government order, power supply failure, accident to or destruction or failure of machinery, premises or other installation, shortage of labour, materials or utilities. If due to such circumstances or events Byonoy has insufficient Products to meet all commitments, it may apportion available Products between its customers at its sole discretion. In the event that delivery of Products is delayed by more than one (1) month as a result of a Force Majeure Event, the customer shall be entitled to cancel the applicable purchase contract.
3.4 The delivery is deemed to be on time when the Product has been sent by Byonoy to the customer no later than on the agreed delivery date.
4 TEST PERIOD
If a test period is agreed upon, the product(s) must be returned within the test period laid out in the quote. If the product(s) is(are) not returned within the test period, the customer will be billed for the full amount stated in the quote.
5 SOFTWARE LICENSE AND RESTRICTIONS
5.1 Subject to the customer’s payment of the price identified on the quote, Byonoy hereby grants to the customer a non-exclusive license to use the Byonoy software set forth in the quote (the "Software") and all related documentation provided by Byonoy (the "Documentation," and referred to collectively with the Software as the "Software Products") solely for the purpose as identified in the Documentation.
5.2 The customer shall not, and shall not allow any third party to:
(a) reverse assemble, decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, or underlying ideas or algorithms of the Software;
(b) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Software Products for the benefit of any third party; or
(c) copy, modify, incorporate into or with other software or create a derivative work of any part of the Software Products. Notwithstanding anything to the contrary in the foregoing, the customer may make one copy of the Software Products for back-up purposes only, provided that the customer reproduces all copyright notices and other proprietary legends on such copy.
5.3 The Software, including any updates, modifications and enhancements thereto, and any and all Documentation delivered by Byonoy to the customer shall at all times remain the sole and exclusive property of Byonoy.
5.4 The customer understands and agrees that Byonoy considers the Software Products to be the proprietary and confidential information of Byonoy. The customer agrees to maintain the Software Products in confidence, and except for the right of the customer to make a copy of the Software Products, the customer agrees not to disclose, duplicate or otherwise reproduce, directly or indirectly, the Software Products in whole or in part.
6 PASSING OF RISK
The risk of accidental damage and/or destruction passes to the customer upon departure of the shipment ex Byonoy’s factory and/or stock. In case of delay of shipment due to circumstances for which the customer is accountable, the risk passes to the customer upon readiness of the merchandise for shipment.
Payments are due fourteen (14) days after the date of the invoice. All payments shall be made by the customer without any set-off, deduction, withholding or otherwise, except with the prior written consent of Byonoy. If the customer fails to pay any amount due under these Terms of Sale, Byonoy shall be entitled (but not obliged) to charge the customer interest on such overdue amount, immediately on demand, from the due date up to the date of actual payment, after as well as before judgment, at a daily rate of eight percent (8%) per annum above the base lending rate of the principal bankers of Byonoy until such time as the customer pays such overdue amount and any accrued interest.
8 RETENTION OF TITLE
Byonoy keeps full title in all Products delivered to the customer as long as the customer has not fulfilled all of its payment obligations in connection with the delivery of the respective Products. During the retention of title, the customer shall not sell, pledge, mortgage, grant security interest or otherwise dispose of the respective Products.
If the customer intends to resell, lease or otherwise dispose of or relocate any of Byonoy’s Products that are subject to laws, rules or regulations concerning medical devices or otherwise in any jurisdiction to any third party or another business unit, the customer shall inform Byonoy in writing about such intention at least four weeks prior to the actual execution by indicating the serial number of the Products as well as the identity, location and scope of business of the respective receiver. This obligation shall not affect the customers' general right to dispose of the Products within the boundaries of applicable law. The customer shall at all time keep appropriate records ensuring traceability of each Product purchased from Byonoy and allow Byonoy and any competent governmental authority access to such records upon request within its ordinary business hours.
10 DISCLAIMER OF WARRANTIES AND LIABILITY & LIMITATION OF REMEDIES
10.1 Byonoy warrants for the warranty period described below that the products correspond, in all material respects, with the written specifications (if any) agreed between the parties or, in the absence of such written specifications, Byonoy's applicable standard product specifications.
10.2 All other conditions, warranties, representations and terms, express or implied (whether by statute, common law, course of dealing, trade practice or otherwise) are hereby expressly excluded, including (without limitation) any implied warranty of merchantability or any other implied warranty, including any implied warranty of fitness for a particular purpose, data accuracy or system integration. Byonoy does not guarantee that use of the software will be uninterrupted or error-free. Byonoy shall not be liable for any breach of the warranty set out in this section if the products or parts of the products are used together with instruments or software other than those delivered by Byonoy or are used otherwise than in accordance with the instructions of Byonoy, or if caused by normal wear and tear or by the negligence or default of the customer, or in the event that any product is serviced, maintained, repaired, adjusted or modified in any manner other than as set forth in the applicable product manual.
10.3 The warranty period is twenty-four (24) months beginning with the receipt of the products by the customer; all breach of warranty claims must be notified by the customer to Byonoy during the warranty period.
10.4 The customer shall inspect the products immediately after receipt for alleged non-conformance with the written specifications (if any) agreed between the parties or, in the case of absence of such written specifications, Byonoy’s applicable standard product specifications (such non-conformance hereinafter referred to as a “defect”). The customer shall notify Byonoy in writing of any non-latent defects within ten (10) days from the date of delivery of product. In the absence of such notification, Byonoy shall have no liability for non-latent defects, whether under the warranties set out herein or otherwise.
10.5 Byonoy has the choice, at its sole discretion, to either repair or replace any product that contains an alleged defect. If (i) such repair fails or (ii) the replacement is defective, the customer has the right to either claim for a reasonable reduction of the purchase price or to cancel the purchase contract and to return the product(s) in question, in which case, Byonoy shall refund to the customer the purchase price of the products (or, to the extent applicable a proportion of the purchase price). Such repair, replacement or refund shall be the sole remedy of the customer for any breach of the warranties set out in this clause. In the case of defects that do not hinder the ability of the device to function according to its purpose as defined by the manufacturer, the customer shall have no right to withdraw from the purchase contract.
11 LIMITATION OF LIABILITY
11.1 Byonoy shall not be liable for any loss of income, loss of actual or anticipated profits, loss of business, loss of revenues, loss of contracts, loss of goodwill or reputation, loss of anticipated savings, loss of, damage to or corruption of data, or for any incidental, indirect, special or consequential loss or damage of any kind arising out of or in connection with the supply of the products to the customer or otherwise in connection with these terms of sale, in each case howsoever arising and whether such loss or damage was foreseeable or in the contemplation of the parties and whether caused by tort (including negligence), breach of contract or otherwise. Byonoy's total liability for any claim or series of claims arising out of, or in connection with, the supply of products to the customer or otherwise in connection with these terms of sale shall not exceed the total purchase price paid by the customer for such products.
11.2 The customer shall take appropriate measures to avert, and/or to minimize the extent of, possible damages.
12 INTENDED USE AND CUSTOMER’S LIABILITY
12.1 To the extent required by applicable laws, rules or regulations concerning medical devices or otherwise which govern the use of the Products, the Products shall only be used within the purpose, specifications, and fields of application as defined in the quote and/or product description issued by Byonoy (“Intended Use”), and shall not be modified or combined with other items in a way not compliant with their Intended Use. The Intended Use also includes a designation of a Product as a single-use medical device, or a research-use-only product, or a general laboratory equipment. Byonoy does not assume any liability vis-à-vis the customer and does not warrant legal or regulatory compliance for Products operated and/or modified and/or combined with other items beyond their Intended Use.
12.2 If the customer operates and/or modifies the Products and/or combines them with other items beyond their Intended Use, the customer shall indemnify and keep indemnified Byonoy and its respective directors, officers, employees, contractors and agents from and against all claims, actions, liabilities, losses, damages and expenses (including legal expenses) arising out of or in connection with the customer's operations, modifications, or combinations of the Products beyond their Intended Use, and/or as a result of any wilful or negligent conduct of the customer. This also applies in case of a resale of Products modified or combined with other items beyond their Intended Use by the customer to third parties.
13 REGULATORY COMPLIANCE OF THE CUSTOMER AND NOTIFICATION OF INCIDENTS, INDEMNIFICATION OF BYONOY BY THE CUSTOMER
13.1 The customer undertakes to only use, service and maintain the Products in full compliance with all applicable laws and regulatory requirements and any instruction given in Byonoy’s manuals accompanying the Products (each a "Product Manual").
13.2 The customer shall in particular make all necessary notifications of incidents or near incidents and of recalls to the competent authorities as set forth by applicable laws and regulations and provide Byonoy with a copy thereof immediately upon issuing such notification. Without prejudice to the customer's notification duties pursuant to applicable laws and regulations, the customer shall, in any event, notify Byonoy in writing of any incident coming to his knowledge which is equal to a malfunction, failure or deterioration in the characteristics and/or performance of a Product, or an inadequacy in the labelling or the instructions for use that, directly or indirectly, might lead to or might have led to the death of a patient, or user or of other persons or to a serious deterioration in their state of health; all notifications of incidents to Byonoy shall be made immediately upon coming to the knowledge of the customer, but at the latest within three (3) working days hereafter.
13.3 The customer shall ensure maintenance of the Products by qualified personnel only.
13.4 If the customer fails to ensure legal or regulatory compliance with respect to the operation of the Products, the customer shall indemnify and keep indemnified Byonoy and its respective directors, officers, employees, contractors and agents from and against all claims, liabilities, losses, damages and expenses (including legal expenses) arising out of failure to ensure such legal or regulatory compliance.
14 PLACE OF JURISDICTION AND APPLICABLE LAW
These Terms of Sale shall be governed by and construed in accordance with German law. Each of Byonoy and the customer hereby submit to the exclusive jurisdiction of the German Courts in connection with any dispute arising out of these Terms of Sale, provided that Byonoy shall be entitled, as claimant, to commence proceedings against the customer in the courts of any competent jurisdiction.
Should any provision of the these Terms of Sales or any other contractual arrangement between the parties referring to these Terms of Sales be or become invalid, the other provisions shall not be affected and the parties shall use their reasonable endeavours to reach agreement to have the invalid provision replaced by a valid arrangement which comes as close as possible to the purpose of the invalid provision and to the intention of the parties related to such provision.