Terms and Conditions

1. General and Definitions

These Terms and Conditions are the only Terms and Conditions governing transactions between biocrates life sciences ag (hereinafter “biocrates”) and the Client, hereafter also these “Terms”. Any alternative terms or conditions imposed or incorporated, or which are implied by trade, custom, practice or course of dealing by the Client shall not apply unless expressly agreed in writing by biocrates. This particularly applies to the Client's order and purchase terms and conditions if they conflict with these Terms or exclude specific provisions of these Terms.

These Terms apply to all future business relations, even if no express reference is made to them in the individual case.

The terms as used in these Terms shall have the meaning as follows:

• “Agreement” shall mean an order by the Client and its corresponding order confirmation by biocrates and all associated terms and conditions and documents.
• “Authorized User” shall be such users only, who, at the time of conclusion of the Agreement by Order confirmation, are natural persons who are associated and authorized by the Client. All Authorized Users need to have a registration under a specific e-mail account. Self-employed professionals sharing office with the Client shall not qualify as Authorized Users.
• “Client” shall mean the contractual party as set out in the Agreement by Order confirmation. A Client can be a natural person, a legal entity or any other entity or organization as identified in the Order confirmation.
• “Products” shall mean all offered products by biocrates that are not Services or Software.
• “Services” shall mean all services provided by biocrates. These Services include, among others, customer support, service analytics, data analysis services, or project work.
• “Software” means “WebIDQ cloud” and/or “WebIDQ on premises” (together “WebIDQ”) and/or QMDB and/or the use of data storage space of biocrates by using a browser.

2. Binding nature of order and fulfilment of Agreement (except webshop)

An order is regarded as binding when biocrates provides written confirmation of the order to the Client after receipt of order. biocrates will provide written confirmation within five (5) business days after receipt of order. The order is binding for the Client. Any Agreement (modifications or amendments) are invalid unless confirmed by biocrates in writing (e-mail is deemed to be sufficient) and unless any further confirmed changes have been proved. The Agreement is fulfilled when biocrates delivers the ordered items to the Client and the invoice is paid by the Client.

For certain Services (e.g. service analytics and data analysis services), a separate service agreement will be established after Client has accepted a service offer.

3. Conclusion of Agreement (webshop)

The presentation of the Products and/or Services in the webshop of biocrates– My biocrates – does not constitute a legally binding offer, but merely an invitation to place orders (invitatio ad offerendum).

To place an order, the desired items offered in the webshop have to be put in the shopping cart. There the Client may modify at all time the desired quantity or delete items completely. If the Client has placed items in the shopping cart, by clicking on the buttons „Next“ the Client will get first to a web page where the Client may enter its additional contact details and then the Client may choose the payment method. The Client can review its input on the overview page that will open up. Input errors (e.g. with respect to the payment method, contact details or quantity) can be corrected. To cancel the order process, the Client can simply close its browser window. By clicking the confirmation button „Submit Order“, the Client’s declaration becomes binding in the meaning of this section of these Terms. Additional comments by the Client added to an order are only indicative and do not have any legally binding effect.

Immediately after submitting the order, the Client will receive a confirmation of offer received by e-mail, which includes in the headline the wording “Order Confirmation”. An Agreement comes into existence between the Client and biocrates as soon as biocrates accepts the order by sending an e-mail which includes in the headline the wording “Order in progress”, hereinafter also the “Order confirmation”. The Client is advised to regularly check the spam folder of its mailbox.

The Client will receive the contractual provisions of the Agreement including these Terms together with the Order confirmation. biocrates does not store the contractual provisions for the Client.

Any further Agreement modifications or amendments are invalid unless confirmed by biocrates in writing (e-mail is deemed to be sufficient) and unless any further confirmed changes have been approved.

4. Prices and Change of Prices

Prices are quoted ex-works (Incoterms 2020) at Eduard-Bodem-Gasse 8, 6020 Innsbruck, Austria exclusive of VAT except for certain webshop sales, for which certain other Incoterms can be chosen. Fees for Services are quoted exclusive of VAT. Any additional information for the sale via webshop will be stated in biocrates’ webshop.

biocrates is entitled to change its prices at any time before delivery of Products and if the offer is older than six months. The Client must be notified in writing (e-mail is deemed to be sufficient) of such a change. The Client has the right to cancel the Agreement within two weeks of such notice. If there is no cancellation the Client agrees to the new prices.

biocrates is entitled to change its prices for certain Services at any time before the sample delivery and/or data delivery by the Client, unless otherwise agreed writing.

5. Delivery

Any delivery dates, unless otherwise expressly confirmed in writing, are given as estimates and are subject to change. Compliance with (confirmed) delivery dates by biocrates requires the Client’s timely provision of appropriate documentation or material, particularly samples – if applicable.

biocrates reserves the right to make and charge part or advance deliveries.

Delivery terms are subject to the occurrence of events beyond reasonable control, e.g. force majeure (inter alia armed conflict, health crisis, official interference or restriction on resources, delay in transportation and customs clearance, traffic hold-up, breakdown of machinery, lack of material and energy, laboratory difficulties and delayed delivery by suppliers based on similar reasons of force majeure as described herein). Lack of material particularly includes non-delivery, delayed delivery or poor quality of the materials required by biocrates to complete the order. If any of the above circumstances arise, biocrates shall be entitled to extend the delivery date or terminate the order according to the extent and duration of these circumstances and their consequences, without allowing the Client to terminate the Agreement or claim for damages.

If biocrates fails to comply with the delivery terms, the Client may terminate the Agreement only if a reasonable notice of at least two weeks is given to remedy the breach. In the case of delayed delivery, except in cases of deliberate intent or gross negligence, liability of biocrates is limited to 0.5% of the net price or the fee of the Service for each commencing week of delay but in total the liability for delay is limited to a maximum of 5% of the net price or the fee of the Service. Only if biocrates is accused of a willful or grossly negligent breach the matter is governed by statutory liability provisions.

Delivery, regardless of the type of shipping, is deemed to be successful when the products and/or Services leave the premises at Eduard-Bodem-Gasse 8, 6020 Innsbruck, Austria. If, without negligence on the part of biocrates, delivery of products and/or Services ready for shipping is not possible or not desired by the Client, the products and/or Services can be stored at the Client’s cost and risk, and delivery shall then be deemed as performed.

6. Transfer of risk

Shipment of the products and/or Service is at the risk of the Client at all times unless otherwise agreed in writing, regardless of the price agreed upon and even if biocrates conducts or organizes the shipment.

If shipment from the premises of biocrates at Eduard-Bodem-Gasse 8, 6020 Innsbruck, Austria is delayed for reasons biocrates is not responsible for, the risk shall pass to the Client from the date the Client is notified that the product is ready for delivery.

7. Payment conditions/no withholding or offset for Client

The remuneration payable by the Client for the Products and/or Services is set out in the Order confirmation or Service agreement.

Payment of the invoice, unless otherwise agreed, is due in full within 30 days from the invoice date. If payment of the invoice is not made by the due date, biocrates shall be entitled to charge default interest at a rate of 9.20% per annum above the base interest rate of the Oesterreichische Nationalbank (OeNB) if the delay is culpably by the Client. If the delay in payment is not the fault of the Client, a rate of 4.00% per annum will be applied. In the event of overdue payment, the Client undertakes to pay a surcharge of € 5 (excluding postage) per reminder as well as the collection agency costs at the rate according to the current regulation. Collection fees shall be charged to the Client.

The Client is not entitled to withhold or offset payments on the grounds of damage claims or any other counterclaims, unless such claims are based on final judgments or court orders or have been explicitly acknowledged.

biocrates reserves the right to offset any money held against invoices outstanding.

Incoming payments shall first be credited to the interest and then the principal; older arrears shall be paid before the more recent ones. If the Client is in arrears with payment or any other contractual obligation, with or without negligence, biocrates may either insist on the fulfillment of the Agreement and a) postpone the fulfillment of its own obligations until such payments or obligations have been performed by the Client, b) recover the total outstanding amount (payable immediately) and, c) when due, charge default interest at a rate of 9.20% per annum above the base interest rate of the Oesterreichische Nationalbank (OeNB)  or terminate the Agreement without prejudice to any claims for damages after giving a reasonable period of notice.

If the Client cancels its order placed via the webshop and the invoice amount has already been paid by the Client but no items have been shipped or delivered yet, biocrates has the right to charge a processing fee of EUR 50.00 for the refund of the invoice amount.

If the Client cancels its order of the products and/or Services before the start of use, biocrates has the right, insofar as it is not responsible for the cancellation or in the event of force majeure, to reasonable compensation for the expenses caused by the cancellation. The damage is deemed to be a flat rate of EUR 50.00. biocrates reserves the right to assert further damages. Likewise, the Client is entitled to prove that the actual damage is lower. The damage claim will be deducted from the refund of the payment, if applicable.

8. Additional rights based on Client’s credit history

biocrates reserves the right to terminate the Agreement, (a) if the Client’s ability to pay is in doubt and if the Client, upon the demand of biocrates, does not make an advance payment or, before delivery, provides a security which is deemed suitable by biocrates, (b) without further notice if any bankruptcy proceeding is started against the Client.

Further, if bankruptcy proceedings are taken against the Client or if the Client discontinues payment, all overdue amounts shall be due immediately. biocrates may also terminate the Agreement for the reasons specified above in the case of incomplete delivery. In the event of termination by biocrates, without prejudice to any claims for damages by biocrates, Services (or part thereof) already performed shall be settled and paid according to contract. However, biocrates reserves the right to reclaim products, Services and/or Software already delivered.

9. Intellectual property rights and indemnification

The Client acknowledges that Products are created by biocrates and biocrates is the owner of all current and future immaterial rights related to Products as amended from time to time. Any third-party rights to the protected works shall remain unaffected.

Trademarks, company logos, other marks or protective notes, notices of authorship, serial numbers or other identifying features may not be removed or modified in electronic formats or printouts.

The Client acknowledges that, in respect of any third party intellectual property rights in the Products, if there are any, the Client's use of any such intellectual property rights is conditional on biocrates obtaining a written license from the relevant licensor on such terms and the relevant licensor will entitle biocrates to license such rights to the Client.

10. Reservation of title

The Products and/or Services delivered to the Client by biocrates remain the sole property of biocrates until the purchase price for said Products and/or Services is effected in full, including interests and costs involved in their collection.

The Client is entitled to onward sale of the purchased Products in compliance with the allowed use of the Products in the proper course of its business operations, however, not to pledge or transfer title as security or undertake other extraordinary disposals. The Client is obliged to impose retention of title on its purchasers and to comply with allowed use.

The Client hereby assigns to biocrates all existing and accruing proceeds of onward sale, in the amount of the final invoice amount (including VAT) of biocrates claims regardless of whether or not the purchased item has been sold with or without further processing. biocrates hereby accepts this assignment.

The Client is revocably authorized to collect the aforementioned receivables from its purchasers in its own name for biocrates’ account, provided that the Client continues to meet its payment obligations towards biocrates. The Client pays the costs of collecting the receivable. The proceeds accruing to biocrates must be paid to them without delay. biocrates’ right to collect on the claims themselves is not prejudiced by this. biocrates does however restrain not to collect on the claims as long as the Client complies with its payment obligations from the proceeds collected, is not in default of payment, in particular, does not suspend its payments or files for bankruptcy.

Where this is however the case, biocrates may demand that the Client discloses the assigned claims and the latter's debtors to biocrates, provides all information needed for collection, surrenders the relevant documents and informs the debtors (third parties) of the assignment. The Client must cooperate in all measures required to secure the rights of biocrates. biocrates is entitled to notify third parties of the assignment and to issue instructions. The Client undertakes any processing on biocrates’ behalf without establishing any obligations on biocrates.

Any attachments by third parties of the products supplied under retention of title or of any other receivables assigned to biocrates, seizures of the retained title products or other forms of attachment by third parties must be notified to biocrates in writing without delay giving the name and address of the seizing or attaching third party.

In case of actions by the Client in breach of the Agreement, in particular in default of payment, biocrates will be entitled to repossess the purchase item. After repossession of the purchase item biocrates are entitled to liquidate its value. The Client must tolerate the sale and grant access to its office and business premises for this purpose. Repossession of the purchase item by biocrates does not constitute cancellation of the contract. If biocrates has specified a certain period for performance with threat of rejection thereafter, and if biocrates then sells the products, the Client is liable to pay biocrates the difference between the selling price to the Client and the proceeds of sale. Furthermore, the Client pays the costs of repossession.

The Client pays all costs necessarily expended in order to cancel the attachment or recover the products or purchased items. The title is also valid against the freight forwarder to whom the products are handed over on behalf of the Client or at biocrates’ request.

11. Warranty (Gewährleistung)

biocrates warrants that the results of the Products and/or Services comply with the contractual stipulations and are free of defects that nullify or reduce their usefulness. The warranty period (Gewährleistungsfrist) is 12 months after the Products and/or Services have been delivered.

biocrates shall also be liable for services and/ or parts of hardware obtained from subcontractors, but only within the warranty period given by the subcontractors and only in the way that the warranty claims against the subcontractors are assigned to biocrates upon request.

biocrates is not liable for the success of its Products and/or Services, particularly not for the economic success. biocrates is liable exclusively for diligently performing the Services ordered. biocrates is required to apply the diligence of a prudent businessman in performing the duties assigned to it.

Recommendations made by employees or representatives of biocrates regarding the use of the Products and/or Services are non-binding and offered as described in the appropriate guideline only. The Client carries the risk as to whether the delivered Products and/or Services in a given case is suitable for its purpose. Thus, no warranty is made as to the applicability in a given case.

Additionally, reasonable wear and tear of the Products and/or Services or usual variations in the extent and/or quality of the delivered Products and/or Services shall not constitute a defect or non-compliance with the contract.

The Client bears the burden of proof for the existence of a defect. biocrates is therefore only liable for defects which can be proven by the Client. The Client has to report defects in a comprehensible manner promptly in writing to biocrates, stating the information that enables the defects to be recognized. The Client is required to help biocrates insofar as necessary to eliminate the defects.

If no notification of defects (Mängelrüge) is made within a reasonable period of time, all warranty claims, claims for damages due to the defect itself as well as due to an error regarding the absence of defects in the item shall lapse.

In the event that defects are remedied, biocrates is obliged to bear all expenses required for the purpose of remedying the defects provided that these are not increased due to the fact that the purchased Products and/or Services have been taken to a place other than the place of delivery or performance. Expenses are, in any case, limited to the amount of the selling price or remuneration. The return transport of Products and/or Service complained about is permitted only with written consent (including e-mail) of biocrates. The Client must advance the freight costs. biocrates shall refund the transport costs only if the notice of defects proves to be justified.

biocrates can invoice to the Client the expenses for defects, which prove to be not justified. The foregoing sentence does not apply to non-defects, of which the lacking defect could not be detected by the Client.

biocrates reserves the right to perform the warranty work at the Client’s premises. The during the warranty period replaced products shall become the property of biocrates.

biocrates reserve the right to perform any warranty activities only if the Client has paid all due amounts. Without limiting the foregoing, the Client has the right to withhold such amount which is reasonable and appropriate for in comparison to the defect of the delivered products.

Should one attempt by biocrates to rectify the defects fail, the Client is entitled to assert his right to cancel the contract, reduce the remuneration or is under the section 11 and 12 entitled to claim damages.

Warranty is void if, without the written consent of biocrates, any attempt to repair the delivered Products and/or Services by the Client or an unauthorized third party has been made. Invoices for such repairs shall not be accepted.

The Client shall notify biocrates of any defects, malfunctions or damage without undue delay. The Client has warranty claims only if defects are reproducible and/or can be shown by outputs. The Client has to report defects in a comprehensible manner promptly in writing to biocrates, stating the information that enables the defects to be recognised. The Client is required to help biocrates insofar as necessary to eliminate the defects.

12. Limitation of liability

Nothing in these Terms shall limit or exclude biocrates’ liability for:

• death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
• fraud or fraudulent misrepresentation;
• damages caused by defective products and/or Services under the Product Liability Act (Produkthaftungsgesetz) for which biocrates maintains appropriate product liability insurance, details of which shall be provided to the Client following request.

Subject to this section and section 11 biocrates shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of goodwill, loss of business, loss of business opportunity, loss of anticipated saving, loss or corruption of data or information, special, indirect or consequential damage or other loss arising under or in connection with the Agreement.

Without prejudice to section 11, biocrates’ total liability to the Client in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid by the Client under this Agreement.

13. Data Protection

The Client is advised that biocrates will collect, process and utilize personal and User Data in accordance with biocrates’ data privacy statement details of which are set out in https://biocrates.com/privacy-policy.

The Client is regarded as “controller” and biocrates is regarded as “processor” as defined in Article 28 of the EU General Data Protection Regulation (EU-GDPR) if the following individual group is affected: Authorized User within the Client’s organization, where biocrates generates statistic information on its profile to facilitate the execution or the preparation of user agreements.

biocrates will ensure that all individuals entrusted with processing personal data will be subject to a commitment to safeguard secrecy of data and compliance with data protection laws. The Client undertakes to keep confidential all data obtained from biocrates’ domain in conjunction with the execution of contractual obligations.

biocrates undertakes to implement all acts referred to in Article 32 of the EU-GDPR to ensure full security of data management and to achieve a level of data protection which shall be in due proportion to the risk associated therewith; the Client shall receive evidence on such action. Upon demand of the Client biocrates shall support the Client in relation to exercising the “rights of the data subject” as set out in Articles 12-23 and 32-36 of the EU-GDPR.

Upon completion of the contractual obligations biocrates shall, unless dictated otherwise by law, be required to delete or transfer to the Client personal data in accordance with instructions that the Client shall provide for such purpose.

14. Confidentiality

A party ("receiving party") shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party ("disclosing party"), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and Services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and the subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Agreement, and shall ensure that such employees, agents and the subcontractors comply with the obligations set out in this clause as though they were a party to the Agreement.

The foregoing obligations shall not apply to confidential information which:

• is or becomes generally available to the public other than as a result of a disclosure by the receiving party;
• becomes available to the receiving party on a non-confidential basis from a source which is not prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the disclosing party;
• the receiving party develops independently of any disclosure by the disclosing party;
• was in the receiving party’s possession or known to the receiving party prior to its receipt from the disclosing party, as shown by contemporaneous written evidence; or
• is required by law to be disclosed.

This obligation of confidentiality and non-disclosure shall remain in effect for a period of two years after the termination of this Agreement.

All data and information of the Client, which are made available, disclosed or otherwise made known to biocrates as a result of Services under this Agreement shall be considered the sole property of the Client. For the sake of clarity the parties understand that biocrates has the right to use anonymized data as meta data to improve its analytical methods, assays and software.

15. Final provisions

Where a provision of this Agreement is or becomes void the legal effect of the remaining provisions will not be prejudiced. The void provisions will be substituted by a provision that as closely as possible corresponds to the sense and purpose of the void provision.

All agreements made between biocrates and the Client for the purpose of performing this Agreement must be documented in writing (including e-mail). Written form also applies to rescission, amendment or supplement to this requirement (including e-mail).

Neither the Client nor biocrates shall be in breach of these Terms, or otherwise liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations under this Agreement (except payment obligations), arising directly from an act of God, fire, flood, natural disaster, act of terrorism, strike, lock-out, labor dispute, public health emergency, civil commotion, riot, or act of war.

All legal relationships arising from transactions between biocrates and the Client shall be exclusively governed by Austrian law, excluding the principles of conflict of laws, as expressly agreed between the parties, unless applicable law is otherwise agreed in writing. The United Nations Convention for Contracts on the International Sale of Goods (CISG) is not applicable. Place of performance for all deliveries and Services is Innsbruck, Austria.

The exclusive language available for the conclusion of the Agreement shall be English.

Any litigation arising directly or indirectly out of delivery of Products and/or Services provided by biocrates shall be pursued by the court competent for the subject matter in Innsbruck, Austria. However, biocrates reserves the right to apply to any competent court.

16. Article 9-ter paragraph 9 bis, of Decree-Law No. 78/2015 (“Payback”)

(Italian Clients only)

Regarding the provisions set forth by Article 9-ter, paragraph 9 bis, of Decree-Law No. 78/2015 and the implementing Decrees of the Ministry of Health of July 6, 2022 and of October 6, 2022 (in each case in the respective version from time to time in force) concerning the payback mechanism on medical devices, biocrates hereby clarifies the following.

biocrates neither produces nor supplies medical devices, active implantable medical devices and/or in vitro diagnostic medical devices (IVDs) within the meaning of Austrian, Italian or European legislation, in particular according to the definitions provided under Regulation (EU) 2017/745, Regulation (EU) 2107/746, European directives on medical devices (where applicable) and any Italian legislation implementing above mentioned European laws.

biocrates’ Products are neither listed nor has there been any application for registration as medical device products with the Ministry of Health in Austria, Italy or in any of European Countries. In relation to the Products manufactured or supplied on the market, biocrates is not registered as manufacturer of medical devices and/or IVDs in any of European Union’ Countries.

biocrates shall not be liable for any biocrates Products’ incorrect qualification other than the qualification given by biocrates to its Products and, consequently, it shall be indemnified and held harmless for any adverse consequences, impacts, results, losses of any kind deriving therefrom, including the alleged application of payback mechanisms or any other legal consequences arising from an incorrect qualification of its Products as medical device or IVDs.