Confidentiality and intellectual property rights
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 Contract, 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.
Without limiting the foregoing, biocrates retain all intellectual property rights as well as any other property rights in and to WebIDQ that is provided under this Agreement including source codes, templates etc.
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.
Terms and Conditions
1. General and Definitions
These Terms and Conditions are the only Terms and Conditions governing transactions between biocrates life sciences ag 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 life sciences ag. 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:
- “Software” means WebIDQ and/ or QMDB including access to “My biocrates”, webshop and the website of biocrates life sciences ag via internet and use of data storage space of biocrates life sciences ag.
- “Single sign-on” (SSO) shall mean a procedure by which signing-in by an Authorized User to his device automatically includes the personal log-in to all the Software.
- “Authorized User” shall mean a natural person entitled to use the Software as permitted by the Order confirmation. Authorized Users shall be such users only, who, at the time of conclusion of the Agreement by Order Confirmation, either are shareholders (partners, co-owners) in the Client entity, or who are employees of the Client. All Authorized User need to have a registration under a specific e-mail Account. Any direct or indirect use of the Software by other persons is prohibited. 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 organisation as identified in the Order Confirmation.
- “Account Data” includes all data necessary for the creation of an account and an Authorized User.
- “Client Data” or “uploaded data” shall mean the upload of data by an Authorized User, which has to be in compliance with GDPR regulation and which have to be anonymized for biocrates life sciences ag.
- “Session” shall mean the time period starting with the log-in to system and ending with the log-out or the deactivation of the browser. For security reasons WebIDQ has an automated session time out implemented. A User needs to relogin after 30 min of inactivity.
- QMDB: “Retrieval” shall mean the display of a document within the browser upon a request made by the Client. If a document is displayed multiple times, e.g. caused by browsing the Database forward and backward, or by additional requests, each instance of display shall be counted as a separate retrieval.
- “QMDB” means a software, which provides plasma concentration ranges for metabolites covered by biocrates life sciences ag profiling kits.
- “WebIDQ” means a software, which uploads MS measurement raw data, processing the MS raw data and finally download the concentration results with access to via cloud “WebIDQ Cloud” or/ and access to on client own computer network “WebIDQ on-premises”
- “Document” shall mean each page as displayed within the browser or an export file including but not limited to content which is a table displayed containing information on metabolite concentration, dispersion and detectability in biological samples, abstracts, and indices, print previews, and help pages.
2. Conclusion of contract and prices (no webshop)
The contract is deemed to be concluded when biocrates life sciences ag provides written confirmation of the order to the Client after receipt of order. biocrates life sciences ag has to provide written confirmation within five (5) business days after receipt. The order is binding for the Client. Any contract modifications or amendments are invalid unless confirmed by biocrates life sciences ag in writing (e-mail is deemed to be sufficient) and unless any further confirmed changes have been proved.
3. Opening a Client account; Processing of personal data and Conclusion of Agreement
In the webshop of biocrates life sciences ag the Client may purchase the Software subscriptions after opening a Client account. With a Client account the Client must not enter personal data every time the Client use our webshop, but the Client may log on to the Client’s account with its e-mail address and password before or during the order process. The Client will not be obliged to buy any of the goods offered by us only due to a registration. For information on the processing of data, please read our data protection information, which can be found under the following link https://biocrates.com/privacy-policy. During the registration, the Client choose a personal user name and a password. The Client is obliged (a) to keep the password secret and (b) not to disclose it to third parties. You may never use another user's User Account without permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account password secure. We encourage you to use “strong” passwords with your User Account.
The Client may delete its registration under „My account“ at all times. If personal information of Client changes, the Client is responsible for the update and to contact the customer service.
All amendments in terms of Authorized User can be made online under „My account“ after the log in.
The presentation of the Software in the webshop of biocrates life sciences ag – My biocrates – does not constitute a legally binding offer, but merely an invitation to place orders (invitatio ad offerendum).
To place an order, start by placing the desired Software subscription in the shopping cart. There the Client may modify at all time the desired quantity or delete goods completely. If the Client has placed goods and the Software subscription 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 data and then the Client may choose the payment method. The Client can review its input on the overview page that will open up. To correct input errors (e.g. with respect to the payment method, data or quantity), click „Edit“ next to the respective field. 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.
By clicking „Submit Order“ in the last step of the order process, the Client submits a binding offer for purchase a subscription listed in the order overview. Immediately after submitting the order, The Client will receive a confirmation of offer received, which however does not yet constitute the acceptance of its offer if this is in line with the payment option the Client have chosen. An Agreement comes into existence between the Client and us as soon as we accept the order by means of a separate e-mail, which includes in the headline the wording “Order Confirmation”, 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 together with information on subscription booked including these Terms or together with the Order Confirmation. We do not store the contractual provisions for the Client.
Any further contract modifications or amendments are invalid unless confirmed by biocrates life sciences ag in writing (e-mail is deemed to be sufficient) and unless any further confirmed changes have been proved.
4. Prices and Cancellation Policy
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 incurred as quoted are exclusive of VAT. Any additional information for the sale via webshop will be stated on biocrates life sciences ag’s webshop.
biocrates life sciences ag is entitled to change its prices at any time before sample delivery 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 Project within two weeks of such notice. If there is no cancellation the Client agrees to the new prices.
5. Access to Software and Client's duties of Cooperation
Client shall use the access data as assigned to the Client as Authorized User by biocrates life sciences ag. In cases of multi-user subscriptions, each Authorized User will be assigned an individual password and individual access data. For technical reasons, the individual access data for a personal log-in will be sent exclusively by e-mail containing an encrypted link. For this reason, the Client is obligated to convey to biocrates life sciences ag the respective e-mail-addresses of all Authorized Users.
The usability and the functionality of the Software, as well as the monitoring designed to prevent unauthorized use, require that the devices used by the Client accept cookies as placed by biocrates life sciences ag’s systems, and that such cookies may not be modified during a session. The Client shall secure compliance with such requirements (in particular by respective settings in his browser). For WebIDQ on premises the client is required to update the Software regularly. If Client is in breach of the above obligations for reasons he is responsible for, biocrates life sciences ag shall not be liable for any malfunctions resulting therefrom. If the monitoring designed to prevent unauthorized use is impaired due to such a breach, biocrates life sciences ag may request the Client to remedy such breach by setting a reasonable deadline. If Client does not timely remedy the breach, biocrates life sciences ag has the right to suspend the Client’s access to or use of the Software until such breach has been remedied. Furthermore, biocrates life sciences ag has the right to terminate the Agreement after setting an additional reasonable deadline and Client is still in breach after expiration of such additional deadline.
biocrates life sciences ag reserves the right to deny access to the Software if there is evidence that the Client and/or the Users are using technology which is affecting the functionality or security of the Software and/or is restricting biocrates life sciences ag’s ability to verify Client’s and/or User’s access rights, and/or is restricting biocrates life sciences ag’s ability to assess compliance with the scope of the Order Confirmation, or biocrates life sciences ag’s ability to prevent unauthorized use. In particular, biocrates life sciences ag may deny access, if the Software is being accessed from an IP-address listed in a publicly available blacklist. Prior to blocking Client’s access to the Software, biocrates life sciences ag will inform the Client of the intended blocking and grant Client a reasonable period of time to correct the problem; this shall not apply in exigent circumstances.
The Client shall promptly inform biocrates life sciences ag if the Client becomes aware of any misuse of access data or passwords. In the case of a misuse, biocrates life sciences ag has the right to suspend the access to the Software until the facts and circumstances have been cleared up and the misuse has been ended. Client shall be liable for any misuse for which the Client is responsible.
Client shall be responsible for providing and maintaining all technical equipment necessary for accessing the Software, in particular, hardware, operating system, Internet connection and current browser software. biocrates life sciences ag will specify during login process if the Client’s browser is supported and will update such information from time to time.
In the case of innovations and modifications to the Software, biocrates life sciences ag will provide the appropriate information. Client shall then be responsible for making the necessary adjustments to his IT infrastructure if necessary.
Client shall take the necessary steps to secure its systems and the Client shall, in particular, use the established security settings of the browser and up-to-date protective mechanisms to prevent malware.
Client is obliged not to store any data on the storage space provided, the use of which violates applicable law, official orders, the rights of third parties or agreements with third parties.
WebIDQ on-premises: Client is responsible for regularly making appropriate data backups. biocrates life sciences ag has no further obligation in terms of storage the Client Data which the service provider for the cloud used for the Software accepts itself.
6. Scope and Availability of the
The Software accessible to Client also describing the scope of Client are set out in the Order Confirmation.
biocrates life sciences ag will use reasonable efforts to achieve an average availability of the Software of 98% per calendar year. Metering point for determining the availability of the Software shall be the interface between the Software and the Internet. The availability shall be determined in accordance with the following formula: Availability = (total time less total downtime) / total time * 100%.
Access to the Software is subject to the occurrence of events beyond reasonable control due to malfunctions of the Internet, force majeure (inter alia armed conflict, health crisis, official interference or restriction on resources, breakdown of machinery, lack of energy on similar reasons of force majeure as described herein) or epidemic or pandemic (such as Covid-19). If any of the above circumstances arise, these times will be not considered as down time.
Further, the following times will also not be considered as downtimes: a) downtime caused by scheduled maintenance work in the systems, which is regularly carried out daily between 8.00 a.m. (CET) and 10.00 a.m. (CET); b) downtime caused by mandatory unscheduled maintenance work required to remove malfunctions; if possible, Client will be notified of any malfunction by a note on the website; and c) downtime caused by temporary deficiencies in Client’s technical infrastructure, such as malfunctions of the Client’s hardware.
biocrates life sciences ag will use reasonable efforts to continuously adjust the Software to changing requirements from time to time. Therefore, biocrates life sciences ag reserves the right to adjust the system according to the technological state of art and to make improvements to the system, in particular to improve user-friendliness. biocrates life sciences ag reserves the right to modify the content, provided such modifications are necessary for error correction, for updating and for supplementation, and/or are necessary due to optimised programming technologies, and/or are required due to licensing restrictions.
Only QMDB: biocrates life sciences ag will continuously update the content, however biocrates life sciences ag will have to rely on the accuracy of information provided by third parties. The date of the then current edition will be stated on the relevant page. Client is advised to conduct a plausibility check for all content before using it in a particular context.
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 life sciences ag requires the client’s timely provision of appropriate documentation or material, particularly samples.
Deliveries are conditional on the client accepting a margin of 10 percent on over or under-delivery unless otherwise agreed in writing. biocrates life sciences ag reserves the right to make and charge part or advance deliveries.
Delivery terms are subject to the occurrence of events beyond reasonable control due to 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 life sciences ag to complete the order. If any of the above circumstances arise, biocrates life sciences ag 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 contract or claim for damages.
If biocrates life sciences ag fails to comply with the delivery terms, the client may terminate the contract 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 life sciences ag is limited to 0.5% of the net price or the fee 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. Only if biocrates life sciences ag 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 life sciences ag, 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.
8. 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 life sciences ag conducts or organizes the shipment.
If shipment from the premises of biocrates life sciences ag at Eduard-Bodem-Gasse 8, 6020 Innsbruck, Austria is delayed for reasons biocrates life sciences ag 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.
9. Payment conditions/ no withholding or offset for Client
The remuneration payable by Client for the use of the Software is set out in the Order Confirmation. The remuneration for the Software shall be paid at the moment of the order or if agreed otherwise for the subscription period and the subsequent extensions respectively set out in the Order Confirmation. The length of the subscription period and subsequent extensions is also set out in the Order Confirmation.
Payment of the invoice, unless otherwise agreed, is due in full within 30 days from the invoice date. If payment of the price is not made by the due date, biocrates life sciences ag shall be entitled to charge default interest at a rate of 10% per annum above the Base Interest Rate of ECB. 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 life sciences ag 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 life sciences ag may either insist on the fulfillment of the contract 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 10% per annum above the Base Interest Rate of ECB or terminate the contract without prejudice to any claims for damages after giving a reasonable period of notice.
If the Client cancels his order of the products and/or service before the start of use, biocrates life sciences ag has the right, insofar as it is not responsible for the cancelation or in the event of force majeure, to reasonable compensation for the expenses caused by the cancelation. The damage is deemed to be a flat rate of EUR 50.00. We reserve 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 possible.
10. Additional rights based on credit history
Additionally, biocrates life sciences ag reserves the right to terminate the contract, (a) if the Client’s ability to pay is in doubt and if the Client, upon the demand of biocrates life sciences ag, does not make an advance payment or, before delivery, provide a security which is deemed suitable by biocrates life sciences ag, (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 accounts shall be due immediately. biocrates life sciences ag may also terminate the contract for the reasons specified above in the case of incomplete delivery. In the event of termination by biocrates life sciences ag, without prejudice to any claims for damages by biocrates life sciences ag, services (or part thereof) already performed shall be settled and paid according to contract. However, biocrates life sciences ag reserves the right to reclaim products, services and/or Software already delivered.
11. Intellectual property rights and indemnification
Client acknowledges that the Software is created by biocrates life sciences ag and biocrates life sciences ag is the owner of all current and future immaterial rights related to the Software 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 Software, if there are any, the Client's use of any such Intellectual Property Rights is conditional on biocrates life sciences ag obtaining a written license from the relevant licensor on such terms as will entitle biocrates life sciences ag to license such rights to the Client.
The Client will be fully responsible for legal and ethical liability as well as for the data source of anonymized data (including the deletion of any reference to personal data) provided and it is understood that any use of personal data in combination with the Software is excluded. The Client will remain all the time the owner of any Client Data. In this respect, the Client shall indemnify biocrates life sciences ag against any third-party claims. To avoid infringement of intellectual property rights, particularly patent or trademark rights, the Client may not export the goods of biocrates life sciences ag to third countries, which are not designated by biocrates life sciences ag.
The following applies to all data originating from the Client and entered and stored in WebIDQ. Exclusive ownership of this data remains with the Client. The Client remains the responsible party both generally in the contractual relationship and in terms of data protection law. If the Client processes personal data (including collection and use) in connection with the use of WebIDQ despite the fact that this is forbidden by these Terms, Client warrants that it is entitled to do so under the applicable provisions, in particular those of data protection law and uploads only anonymized references in WebIDQ or pseudonymised references, for which it is technically ensured that these are non-retrievable from the point of view of biocrates and are thus anonymised. In the event of a breach the Client indemnifies biocrates life sciences ag against all and any claims by third parties.
12. Reservation of title
The services, products and/or the Software delivered to the client by biocrates life sciences ag remain the sole property of biocrates life sciences ag until the purchase price for said services, products and/or the Software is effected in full, including interests and costs involved in their collection.
The client is entitled to onward sale of the purchased item in compliance with 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 life sciences ag all existing and accruing proceeds of onward sale, in the amount of the final invoice amount (including VAT) of biocrates life sciences ag claims regardless of whether or not the purchased item has been sold with or without further processing. biocrates life sciences ag hereby accepts this assignment.
The client is revocably authorised to collect the aforementioned receivables from its purchasers in its own name for our account, provided that the client continues to meet its payment obligations towards biocrates life sciences ag. The client pays the costs of collecting the receivable. The proceeds accruing to biocrates life sciences ag must be paid to them without delay. biocrates life sciences ag’s right to collect on the claims themselves is not prejudiced by this. biocrates life sciences ag 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 life sciences ag may demand that the client discloses the assigned claims and the latter's debtors to biocrates life sciences ag, 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 life sciences ag. biocrates life sciences ag is entitled to notify third parties of the assignment and to issue instructions. client undertakes any processing on biocrates life sciences ag’s behalf without establishing any obligations on biocrates life sciences ag.
Any attachments by third parties of the products supplied under retention of title or of any other receivables assigned to biocrates life sciences ag, seizures of the retained title products or other forms of attachment by third parties must be notified to biocrates life sciences ag 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 contract, in particular in default of payment, biocrates life sciences ag will be entitled to repossess the purchase item. After repossession of the purchase item biocrates life sciences ag 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 life sciences ag does not constitute cancellation of the contract. If biocrates life sciences ag has specified a certain period for performance with threat of rejection thereafter, and if biocrates life sciences ag then sells the products, the client is liable to pay biocrates life sciences ag 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 life sciences ag’s request.
13. Client's rights of use
Subject to the payment of the remuneration, the Client will be granted, in accordance with the provisions of the Order Confirmation and the provisions below, a non-exclusive, nontransferable right, limited to the term of the subscription to use the Software by named and assigned Users by the Client.
Any other reproduction or other utilisation of documents require the prior written consent by biocrates life sciences ag. The systematic and automated retrieval of documents as well as the systematic transmission of documents to third parties as well as the use of the Software for the purposes of a commercial information brokerage (research and retrieval of documents by order of third parties) is not permitted.
Downloaded documents may only be stored for the term of the subscription and must be deleted thereafter as described herein; biocrates life sciences ag hereby waives the right to have the copies returned. The permanent archiving of downloaded documents is not permitted except if required by the law or for projects conducted in the subscription period. Excepted therefrom is the case-related, process-related or file-related archiving to a minor extent. For archiving purposes, the Client may print, or permanently store on data storage media incurred in the subscription period even beyond the term of the subscription.
By using his access data and password, an Authorized User can log-in to the Software. Upon an additional log-in by using a different browser or a different device, the preceding session will be terminated automatically.
Any statutory rights of use regarding the Software are not included in or granted under the Order Confirmation and/or these Terms shall remain unaffected.
The use of the Software is limited to the number of Authorized Users as stipulated in the Order Confirmation. The Client must identify all Users by name. The Users’ right to access the Software will be confirmed by biocrates life sciences ag by e-mail.
biocrates life sciences ag has the right to take technical measures to prevent a use of the Software in excess of the permitted scope and may, in particular, install relevant access restrictions. The Client may not use any devices, products or other means which serve the purpose of bypassing, or overcoming, the technical measures taken by biocrates life sciences ag. In the event of a misuse, biocrates life sciences ag may immediately suspend the access to the Software. Any other rights and remedies of biocrates life sciences ag, including but not limited to, the right to terminate for good cause and claims for damages, shall remain unaffected.
Client shall instruct the Authorized User(s) about the provisions above and shall ensure compliance by all Users.
In case there is plausible evidence for misuse of the Software, in particular for an overuse, biocrates life sciences ag has the right to request the Client to provide relevant information about the extent and manner of use of the Software. Further rights and claims of biocrates life sciences ag shall remain unaffected.
If the Client does not comply with his obligations under this Section above for reasons the Client is responsible for, biocrates life sciences ag has the right to in good faith assess and claim the revenues which were presumably lost; The respective provisions of the Copyrights Act (Urheberrechtsgesetz) shall apply. The assessment may be based on criteria such as the number of retrievals recorded in the then current extension as compared to the retrievals recorded in the previous subscription period or extensions and the number of employees employed or associated with the Client.
QMDB: The right of use includes the right to conduct searches in QMDB, to retrieve documents and the right to read-only access, to download and save one copy of a document on the device of the Client or on the device of the Authorized User, and to print out hard-copies of the document. Any information gathered from QMDB may only be published or sent to third parties if “QMDB” and “biocrates” are stated as the source.
The use is limited to the retrieval of a maximum of 20 Documents per Authorized User and calendar day. biocrates life sciences ag has the right to charge an additional remuneration for the retrieval of additional Documents. biocrates life sciences ag further reserves the right to reduce the access, retrieval and download speed for the respective User and device used by such User for the rest of the calendar day if the aforementioned volume is exceeded.
QMDB is not physically transferred to the Client. The use of QMDB is further limited to the use via browser access.
WebIDQ: The right of use includes the right to upload/create samples, create plate layouts, create and download MS instrument worklists, upload MS measurement raw data, processing the MS raw data and finally download the concentration results and save one copy of the document on the device of the Client or on the device of the Authorized User, and to print out hard-copies of the document.
14. Warranty (Gewährleistung)
biocrates life sciences ag warrants that the results of the products, services and/or the Software 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, services and/or the Software have been delivered.
biocrates life sciences ag 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 life sciences ag upon request.
biocrates life sciences ag is not liable for the success of its services, particularly not for the economic success. biocrates life sciences ag is liable exclusively for diligently performing the services ordered. biocrates life sciences ag is required to apply the diligence of a prudent businessman in performing the duties assigned to him. For online services the responsibility of biocrates life sciences ag extends only to the network access point between biocrates life sciences ag’s systems and the Internet, but not to the client's systems and data transmission lines beyond that point.
Recommendations made by employees or representatives of biocrates life sciences ag regarding the use of the products, services and/or the Software are non-binding and offered as described in the appropriate guideline only. The client carries the risk as to whether the delivered service and/or products 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, services and/or the Software or usual variations in the extent and/or quality of the delivered products, services and/or the Software 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 life sciences ag 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 life sciences ag, stating the information that enables the defects to be recognised. The client is required to help biocrates life sciences ag 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 life sciences ag 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 has 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 life sciences ag. The client must advance the freight costs. biocrates life sciences ag shall refund the transport costs only if the notice of defects proves to be justified.
biocrates life sciences ag 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 life sciences ag 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 life sciences ag.
biocrates life sciences ag 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 life sciences ag 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 10 and 11 entitled to claim damages.
Warranty is void if, without the written consent of biocrates life sciences ag, 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.
biocrates life sciences ag shall repair any defects of the Software within a reasonable period of time. In that respect, the responsibility of biocrates life sciences ag extends only to the network access point between biocrates life sciences ag’s systems and the Internet, but not to the Client's systems and data transmission lines beyond that point.
Recommendations made by employees or representatives of biocrates life sciences ag regarding the use of WebIDQ are non-binding and offered as described in the appropriate guideline only. The Client carries the risk as to whether the delivered service, product or the Software in a given case is suitable for its purpose. Thus, no warranty is made as to the applicability in a given case.
QMDB: biocrates life sciences ag will use the standard of care as customary in the R&D business in selecting and updating the content. The completeness, accuracy and currentness of the content cannot, however, be warranted.
The Client shall notify biocrates life sciences ag 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 life sciences ag, stating the information that enables the defects to be recognised. The Client is required to help biocrates life sciences ag insofar as necessary to eliminate the defects.
15. Limitation of liability
Nothing in these Terms shall limit or exclude biocrates life sciences ag's 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 life sciences ag maintains appropriate product liability insurance, details of which shall be provided to the client following request
Subject to section 10 biocrates life sciences ag 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 Contract.
Without prejudice to section 10, biocrates life sciences ag's 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 Contract.
16. Term, Termination, Deletion of Data
Unless agreed otherwise in the Order Confirmation the term of the Software will be 12 months and no regular termination is possible.
Each party's right to terminate for good cause remains unaffected. A customer can delete all data incl. his account at any time.
QMDB: Once the term for the Software QMDB ended the Client has no access to the Software.
WebIDQ Cloud: Once the term for the Software WebIDQ Cloud ended the Client has a right to access the Software on a Read Only basis for 30 days. Four months after the term for the Software WebIDQ Cloud has ended the Client Data in the storage will be deleted.
WebIDQ on premises: Once the term for the Software WebIDQ on premises ended the Client has a right to access the Software on a Read Only basis for 30 days.
The Client Data will be deleted at the day after the term ends. biocrates life sciences ag has no right of retention or to create a lien in terms of the Client Data.
17. Data Protection
The Client is advised that biocrates life sciences ag will collect, process and utilize personal and User Data in accordance with biocrates life sciences ag’s data privacy statement details of which are set out in https://biocrates.com/privacy-policy.
The Client is regarded as “controller” and biocrates life sciences ag is regarded as “processor” as defined in Article 28 of the EU General Data Protection Regulation (EU-GDPR) if a minimum of one of the individual groups as listed below is affected: a) User within the Client’s organisation, where biocrates life sciences ag generates statistic information on its profile to facilitate the execution or the preparation of User agreements, b) User within the Client’s organisation where their log-in procedure is executed either via log-in dialogue or via Single Sign-on (SSO).
For the Software biocrates life sciences ag is authorized to process personal data only to the extent as required to ensure compliance with contractual obligations. Processing of personal data for other purposes shall not be permitted.
For the proper performance of the Software it may become necessary for the Client to commission biocrates life sciences ag with the processing of personal data on the Client’s behalf. In such case the Parties will duly execute a data processing agreement in accordance with the requirements of applicable data protection laws, substantially in the form of Attachment 1.
biocrates life sciences ag 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 life sciences ag’s domain in conjunction with the execution of contractual obligations.
biocrates life sciences ag 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 life sciences ag 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 life sciences ag 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.
18. Final provisions
Where a provision of this contract 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 life sciences ag and 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).
All legal relationships arising from transactions between biocrates life sciences ag 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 and/or services provided by biocrates life sciences ag shall be pursued by the court competent for the subject matter in Innsbruck, Austria. However, biocrates life sciences ag reserves the right to apply to any competent court.