General Terms and Conditions of SimplexDNA AG
1. Scope
These General Terms and Conditions (hereinafter “Terms and Conditions”) pertain to all offers and contracts which are closed by "SimplexDNA AG" (and all its subsidiaries, hereinafter "SimplexDNA"). Amendments, changes or other agreements or conflicting terms and conditions of the buying party are only valid if they are previously confirmed by SimplexDNA, in writing. Changes in these Terms and Conditions or its scope require written confirmation by SimplexDNA and are only acceptable as long as the order is not in production.
2. Orders
A buying contract subject to these Terms and Conditions is concluded by acceptance of an order by SimplexDNA. Orders are considered accepted after written order confirmation, for example by sending a signed quote. Electronic communication and files (e.g. email) counts as a written confirmation. Orders may include products and / or services.
SimplexDNA is not obligated to start any analytical work unless it has been provided all required information.
3. Acceptance of Samples or Materials
Samples (e.g. water filters) or materials must be in a condition which permits the production of reports / analyses or the production of the products commissioned. SimplexDNA shall be entitled to carry out an examination of any sample or materials on their delivery in order to establish their condition prior to the processing of the sample or the production of a report or their use in the production process. The customer shall be obliged to bear the costs of such an inspection on delivery, should it emerge that the sample or materials do not comply with the requirements communicated with the offer. In the event that the result of the inspection on delivery reveals that analysis or production will be impossible or only possible in more onerous circumstances than originally anticipated – for example because the sample or materials have been mixed with foreign materials or substances which were not provided by the customer or if they have degraded – SimplexDNA shall be entitled to withdraw from the contract or to suspend the performance of the contract. In such a case the customer shall bear the costs which SimplexDNA has incurred until such point in time.
4. Sample Storage and Return
All submitted samples (e.g. water filters) shall become the property of SimplexDNA. To the extent that storage has not been agreed, SimplexDNA shall not be obliged to ensure the storage and/or refrigeration of any sample. If storage has been agreed, SimplexDNA shall take commercially reasonable measures in accordance with standard industrial practices to store the samples.
SimplexDNA shall be entitled to indefinitely store, use, further analyse or dispose of or destroy samples upon the completion of analyses, unless anything else has been agreed in writing. If a specific retention period has been agreed, SimplexDNA shall be entitled to dispose of or destroy the sample without prior notice on the expiry of such period. If the customer requests the return of unused sample materials, SimplexDNA shall return such sample materials at the expense and risk of the customer.
5. Pricing
Unless the order confirmation does not state otherwise, INCOTERMS 2020 "ex works" applies to all prices. Any additional costs and expenses (shipping costs, for example) are borne by the customer. Prices are exclusive of all applicable taxes (including sales, use and value-added tax) and are based on tariffs in force at the day of conclusion of the contract. Applicable taxes are those in force at the date of invoicing. SimplexDNA reserves the right to alter prices that appear online on the SimplexDNA website. In case of divergence, valid prices are those that are stated on the Offer and Order Confirmation.
6. Payment Terms and Invoicing
Payment is upfront by default for services listed on an accepted quote from SimplexDNA. The payment term starts with the shipping of sampling kits from SimplexDNA (the latest) or with the written order confirmation (the earliest), for example when no kits are being sent out.
Invoices will be made available electronically (via email or offered as download, for example). Additional or partial invoices may be generated when, according to the judgement of SimplexDNA, steps and services that were not quoted initially were added to the order, or upon request.
Invoices are payable within 30 days’ net, in the relevant currency (CHF, EUR, USD) and quoting the respective invoice number. Payments shall be made by way of a bank transfer or by direct debit. Any other method of payment must receive prior agreement from SimplexDNA. Payments are valid only to the extent as SimplexDNA as the receiver can freely dispose of the provided amount at a bank. In case of default, we reserve the right to charge default interest in the amount of 2% above the discount rate of the National Bank, however at least a fee of CHF / EUR / USD 20.00 is charged. Deductions or the retention of due invoice amounts are also in the case of complaints not permitted.
If at the buyer’s request an invoice must be re-issued, SimplexDNA is entitled to an administrative fee of up to CHF / EUR / USD 20.00. This does not apply for corrections due to errors in the original invoice.
Prepaid articles do not expire and stay valid until the portfolio article is discontinued or the service is no longer offered.
7. Delivery Terms
Delivery dates and completion periods shall be estimates and shall not be binding to SimplexDNA. SimplexDNA shall nonetheless be required to use its commercially reasonable endeavours to comply with the estimated completion periods. SimplexDNA shall be entitled to deliver in instalments. Each instalment may be separately invoiced.
Where products or materials are required to be shipped, the choice of transport company and means of transport shall be up to SimplexDNA. INCOTERMS 2020 “ex works'' apply. The risk passes over to the customer at the handover to the transport company. SimplexDNA cannot assume any liability for the delivery time of the transport company.
SimplexDNA reserves the right to make slight deviations from information provided regarding measurements, weight, condition and quality.
8. Warranty
Analyses, interpretations, assessments, estimates, consultancy services and inferences shall be completed, arrived at, compiled, provided and drawn with a commercially reasonable degree of care. However, SimplexDNA cannot warrant that such analyses, interpretations, assessments, estimates, consultancy services and inferences shall in all cases be accurate or wholly relevant.
Defects must be communicated to SimplexDNA in written form within 14 days after gaining knowledge of the defect. SimplexDNA reserves the right to rework or replace deliverables two times over. The right to complain expires in any case three months after receipt of the goods.
9. Liability
The use of SimplexDNA’s products is permitted only for research purposes. The products are not approved for use in diagnostics or in medical context. The resale of the products is prohibited, if no written exception is granted in an individual case. The use of products may touch the rights of third parties.
SIMPLEXDNA IS NOT LIABLE FOR DAMAGES CAUSED BY IMPROPER OR INAPPROPRIATE USE OF PRODUCTS OR DELIVERABLES. SimplexDNA is also not liable for consequential damages, particularly not in an incorrect sequence, or modification of the property of a product, unless there is gross negligence.
SimplexDNA shall not be liable for ensuring that its products are suitable and applicable for the customer's desired purpose.
10. Limitation of Liability
SimplexDNA is liable only for damages caused by an intentional or grossly negligent breach of duty of its legal representatives or agents. The customer will ensure that any material to be analyzed is packaged for transportation according to respective regulations. SimplexDNA reserves the right to refuse any shipments that do not satisfy the requirements.
11. Force Majeure
SimplexDNA shall not be liable to pay any compensation in respect of any delays, errors, damage or other problems which are caused by events or circumstances which were unforeseeable by SimplexDNA or which are beyond its control or which result from compliance with official orders, legislation or regulations.
12. Confidentiality and Processing of Customer Data
The buyer agrees that the data contained in the contractual relationship and the services provided are stored indefinitely for the purpose of fulfilling the contract and keeping records. SimplexDNA is committed to maintaining confidentiality about orders placed.
13. Rights of Title and Intellectual Property
DNA sequences designed by SimplexDNA are regarded as intellectual property of SimplexDNA and may not be used for commercial purposes by any other party and must not be disclosed to any other party until written approval from SimplexDNA was given.
The rights of title and any other rights in the results of the analyses, products, equipment, software or like items held by SimplexDNA in the context of the services provided to the customer, shall be retained by SimplexDNA until such time as all invoices relating to such services have been paid in full by the customer. Until such invoices have been paid in full, the customer shall have no rights of title or any other rights to exploit the services provided. Should the customer be in arrears with the settlement of any sums which are payable to SimplexDNA, SimplexDNA shall be entitled to suspend the performance of the contract and any other work being carried out on behalf of the customer. This shall also apply if the payment which is late is payable pursuant to another contract.
All Intellectual Property Rights in the services, including but not limited to the sequencing, laboratory know-how or any improvements or modification thereof, shall be owned by SimplexDNA, if not expressly agreed otherwise in writing.
14. Retention of Results
SimplexDNA shall have the right to retain a copy the results of any analyses carried out (the sequencing data, raw data, metadata of samples like geolocation, time of sampling) and to make use of such results in an anonymised form in order to provide services to its customers, partners and third parties, improve its quality measures, to optimize its processing. Customers may opt out of the usage of the results generated from services carried out in their name by written objection prior to acceptance of the offer.
15. Closing Provisions
These Terms and Conditions may be amended from time to time. In each case, the version of these Terms and Conditions in force on the date of the acceptance of the offer shall be the version applicable to the resulting contract.
If a court strikes down any provisions of these Terms and Conditions, limits them in their application or finds them to be invalid, unlawful or unenforceable, the remaining provisions shall stay valid to the fullest extent possible.
If either SimplexDNA or the customer refrains from asserting any rights which arise pursuant to these Terms and Conditions, this shall neither constitute a waiver of such rights nor shall it result in the forfeiture of such rights.
16. Applicable Law / Jurisdiction
These general terms and conditions render earlier agreements or general terms and conditions invalid. Through each order, the buyer recognizes all points of these terms and conditions. These as well as the contracts that are closed due to the present terms and conditions are subject to the relevant national legislations in which the SimplexDNA companies are located. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Contract.
For all disputes arising from the contractual relationship the place of jurisdiction is: Kanton of Zurich, Switzerland
Effective date 26.07.2023