General Terms & Conditions of MS-Omics ApS
Article 1. General
1.1 These Conditions are applicable to the preparation and realization of advisory, research and/or production work commissioned by a Customer and the Services provided by MS-OMICS.
Article 2. Assignment
- A written offer including the price and the Work Order is made to the Customer, unless urgent work or work on a limited scale is involved, in which case an offer can be made verbally and the verbal offer shall be communicated in writing by MS-OMICS within five (5) working days of the verbal offer.
- An offer is effected if MS-OMICS has received a written acceptance by the Customer within the term indicated in the offer. If an offer is made verbally, its acceptance can also take place verbally, but the completion of the order shall be confirmed in writing to the Customer by MS-OMICS within five (5) working days of the verbal offer.
- By accepting an offer for the execution of work related to research, MS-OMICS commits itself to no more than aiming at delivering Results that are workable for the Customer.
Article 3. Work Order
- The Work Order includes a project plan in which the work, the investments, (intermediary) decisions and – if possible – the expected Results are described. A detailed project plan may be omitted, however, if an offer is made verbally.
- After a Work Order becomes effective, changes may be made to such Work Order in writing only after mutual agreement of the Customer and MS-OMICS.
- If no agreement on making a change to the Work Order can be reached, the original Work Order shall be followed as far as possible. If the Customer or MS-OMICS does not agree to this, a dispute in the sense of Article 5. has arisen.
- The Work Order or the plan of work described in the Work Order, including drawings, models and calculations, remain the property of MS-OMICS, unless arranged otherwise in Article 8.
Article 4. Indemnity and Payment
- The price for the Services shall be included in the Work Order and shall be fixed during the execution of the Work Order.
- Subject to prior written agreement, if the scope of work in the Work Order has to be determined by subsequent calculation, an estimated price may apply. In the execution of a Work Order, the price may be exceed by a maximal 5% without prior approval of the Customer, unless the Customer has agreed a >5% overspend and/or supplementary payments in the form of a down payment, a bonus and/or a royalty.
- The Service commencement date and the expected Service completion date shall be specified in the respective Work Order.
- All fees payable by the Customer to MS-OMICS in respect of the Services to be provided by MS-OMICS shall be specified in the Work Order together with a detailed billing schedule.
- Invoices shall be paid within eight (8) calendar days after the invoice delivery date. The Customer is also obliged to pay accrued interest at no more than 4% per month and any costs of collecting the payments if, after having received a written summons, the Customer exceeds the term stated therein.
- Unless stated otherwise, all amounts mentioned in the offer by MS-OMICS or agreed upon verbally are exclusive of VAT.
- Supply of products within the framework of the plan of work takes place “ex-works MS-OMICS”. Costs of transport of (hazardous) waste and residues are expressly at the expense of the Customer.
Article 5. Secrecy, Confidentiality
- The Parties shall keep secret all Confidential Information mentioned in the Work Order for the duration of the project and for five (5) years afterwards or five (5) years from the date of the offer, whichever is last. The Party receiving the Confidential Information of the other Party (the “Receiving Party”) shall keep secret all Confidential Information that it has been provided in writing by or on behalf of the Party disclosing the Confidential Information (the “Disclosing Party”), for five (5) years from the date on which the Disclosing Party’s Confidential Information has been provided.
- The Work Order and the Services executed are to be kept secret, unless their development has not been part of the Work Order. This obligation to secrecy holds for a period of five (5) years after the date of sending the written report, as meant in Article 1, unless MS-OMICS and the Customer have agreed on another term.
- The obligation to secrecy described in Articles 1 and 5.2 is not applicable to Confidential Information that:
- are already in the possession of the Receiving Party at the moment the Receiving Party is informed of the Confidential Information concerned,
- becomes publicly known without being the result of any action or failure or breach of the part of the Receiving Party.
- has been lawfully obtained from a third party by the Receiving Party without such similar restriction(s) to its confidentiality and without any breach of these Conditions,
- has been obtained through the Receiving Party’s own research without making use of the Disclosing Party’s Confidential Information,
- is required to be disclosed by order of a court of competent jurisdiction, administrative agency or governmental body, or by subpoena, summons or other legal process, or by law, rule or regulation, or by applicable regulatory or professional standards provided that prior to such disclosure, Disclosing Party is given a practically prompt written notice of such order and the scope of such disclosure is limited to the extent possible.
- The Customer shall keep secret that part of the Results that refers to measuring methods, methods of working, techniques, arithmetic models and/or software, unless the Customer has been given right of exclusive use of such Results.
Article 6. Obligations of the Customer
- The Customer shall, as soon as possible after acceptance of an offer meant in Article 2 and at its own expense, provide MS-OMICS with the Materials reasonably required by MS-OMICS for the performance of the Services. The Customer shall supply all information regarding Materials that is of importance for preventing injury or damage with special emphasis on the hazardous and dangerous aspects.
- The Customer, or his authorized representative can be present at the execution of the work, if this has been agreed on in advance by MS-OMICS.
- MS-OMICS will use the Materials only in the performance of the Services. MS-OMICS shall not use, and shall not permit the use of the Materials in human beings. MS-OMICS shall not use, and shall not permit the use of the Materials in any in vivo studies unless specifically included in the Work Order. MS-OMICS shall not distribute, disclose or release the Materials to any person or institution, other than those under the direct supervision and responsibility of MS-OMICS, for use in performing the Services, and shall ensure that no person will otherwise be allowed to take or send the Materials to any other third-party entity, unless the Customer gives its prior written permission.
- The Customer retains all right, title and interest in and to the Materials. Nothing in the Work Order and/or these Conditions shall be construed to grant or imply any right or licence to use, make or sell the Materials or any inventions covered by the Customer patents or patent applications for any purpose other than as expressly permitted herein. In accordance with the Customer’s instructions, MS-OMICS will, at the Customer’s expense, promptly return to the Customer or otherwise safely dispose of any quantities of the Materials remaining after completion of the Services, or on the expiration or earlier termination of the Work Order to which they relate, and will certify such disposition in writing.
Article 7. Reporting
7.1 The execution of the Work Order will be concluded by a written report to be sent by MS-OMICS to the Customer within fifteen (15) calendar days after the completion of the work and describing the Results and conclusions from the Services.
Article 8. Rights to Results
- The Customer will be the sole owner and will have the exclusive, transferable right for use of the Results as described in the Work Order in so far as the Results consist of data.
- All Confidential Information that MS-OMICS possessed at or before the start of the Services belong to MS-OMICS and MS-OMICS will remain their sole owner. If needed, the Customer may obtain a license for the use of MS-OMICS Confidential Information on conditions to be mutually agreed upon between the Parties.
- The right of use as meant in Article 1. is only applicable from the time when MS-OMICS has received complete payment for the work executed.
- Both during and after the period during which MS-OMICS, pursuant to Article 2., is obliged to secrecy, MS-OMICS has the right to use for itself and third parties, or put at the disposal of third parties:
- know-how and data present at MS-OMICS on acceptance of the offer;
- Results of work for uses outside the scope of the Work Order;
- know-how, data and Results of a work with regard to which, pursuant to what has been laid down in Article 3, no obligation to secrecy is applicable.
- The Customer is not allowed to use Results from and reports of work done by MS-OMICS (i) for submitting a claim for damages against third parties, (ii) for starting legal proceedings and the preparatory actions connected with them and (iii) for advertising nor (iv) to use the name of MS-OMICS in any connection, unless after prior written permission from MS-OMICS.
- Results from the Services delivered to the Customer are the property of the Customer, but MS-OMICS keeps the copyright and other intellectual rights of ownership with regard to aforementioned reports, drawings and other tangible matters that are not Results. The Customer will refer to / mention the relevant authors from MS-OMICS in publications.
Article 9. Protection of know-how
- The Customer has the right to apply for patent protection in his name and at his expense for the Results meant in Article 1. The Customer shall mention in the patent application(s) as inventor(s) all the relevant MS-OMICS employees who have made an inventive contribution to the work.
Article 10. Liability
- MS-OMICS is responsible for the Services provided in accordance with Danish law.
- The responsibility is for both MS-OMICS and its partners and employees limited to a maximum of DKK 1 million per task, given that the total amount of compensation as one client is entitled to receive, not exceed DKK 5 million in respect of all claims by the client in one calendar year.
- MS-OMICS and its partners and employees are not responsible for incidental or consequential damages, including consequential loss, loss of data, loss of profits, goodwill, image, etc.
- MS-OMICS does not accept any liability for damages that arise from Results that are not eligible for patenting, or because in application of the Results the intellectual property or license rights of third parties are infringed.
- MS-OMICS does not guarantee the completeness of the search for (patent) literature it carries out in conjunction with an offer or work.
- MS-OMICS partners and employees shall not be liable for any errors committed by advisers as MS-OMICS has referred the client for, like MS-OMICS and its partners and employees shall not be liable for any errors made by subcontractors, as MS-OMICS in agreement with the client has entrusted part of the assignment for.
- MS-OMICS has a liability insurance with a recognized insurance company. MS-OMICS will not give insurance arrangements and / or policy but certificate may be requested by the Customer.
Article 11. Special arrangements, disputes
- If the work ordered by the Customer is prematurely terminated by mutual agreement, the provisions in Articles 8, 9 and 10 apply to the Results obtained until then. All expenses incurred until then on the work by MS-OMICS are for account of the Customer.
- If it is proven by MS-OMICS that during the execution of work aimed at the manufacturing of products unforeseen losses of raw materials occur and/or products are obtained of considerably less quality than usual, MS-OMICS has the right to terminate the work immediately. The Customer will be immediately informed of this. Continuation of the work shall in that case take place only if the Customer has declared in writing that the Customer is in agreement with the unforeseen extra costs following from the unforeseen losses or inferior quality meant.
- If an exemption or permit necessary for the execution of the work is revoked, the execution of the work is terminated. In that case the Customer owes the costs incurred on the work by MS-OMICS to the moment of termination. The damage suffered by the Customer as a result of such a termination is for the account of the Customer.
- If the Customer does not fulfil any essential obligation that is imposed on him pursuant to these Conditions and, after having been declared in default for that, has still not complied within a reasonable term mentioned in the proof of default, the Customer loses any right to the Results following from the work done by MS-OMICS, without prejudice to the right of MS-OMICS to claim compensation of the damage suffered and still to be suffered.
- Disputes between MS-OMICS and the Customer that are connected with the work done and that cannot be solved by mutual agreement, shall be settled by the Danish Maritime and Commercial Court in Copenhagen, Denmark. Danish law, except its choice of law rules, shall apply.
- To the agreement concluded verbally or in writing between the Customer and MS-OMICS as regards the work to be done and the work proceeding, Danish law is applicable.
- These Conditions and the Work Orders are considered to be part of the agreement meant in the preceding paragraph. Provisions deviating from these Conditions and/or a Work Order shall be laid down in writing.
- Either Party shall have the right to terminate, for reasons of convenience, one or more Work Orders by giving to the other not less than thirty (30) days prior written notice.
Article 12. Warranties
12.1 MS-OMICS warrants that it will perform the work ordered by the Customer (i) in accordance with these Conditions and the applicable order (including any protocol included in or referenced in the applicable order); (ii) exercising all reasonable skill and care, in a professional manner and in accordance with industry standards and the conditions and warranties as to care and skill and quality of service implied by the applicable law, (iii) in a timely manner; (iv) in compliance with all applicable laws, rules and regulations; (v) without, to its knowledge, breaching any third party intellectual property rights; and (vi) utilizing appropriately skilled and experienced personnel.
Article 13. Defined Terms
- In these Conditions the following words and expressions shall have (unless the context otherwise requires) the following meanings:
- “Conditions” means these General Terms and Conditions together with any special terms agreed in writing between MS-OMICS and the Customer as specified in the Work Order;
- “Confidential Information” means, subject to the exclusions in Article 5.3 of these Conditions, all confidential information (however recorded, preserved or disclosed) disclosed by a Party to the other Party including but not limited to any information that would be regarded as confidential by a reasonable business person relating to the business, affairs, customers, clients, suppliers, plans, intentions, market opportunities, operations, processes, product information, know-how, data, designs, methods, technologies, trade secrets or software of the Disclosing Party (and also including all information derived from such Confidential Information);
- “Materials” means all compounds, chemicals, materials, samples and substances to be provided by the Customer (in reasonably sufficient quantities in order to carry out the Services) and as specified in the applicable Work Order together with data, information, advice and analyses concerning such compounds, materials, samples and substances as the Customer may have in its possession or control concerning their stability and their storage, handling and safety requirements (including the Material Safety Data Sheet) and as may be required by applicable law, rule or regulation;
- “Party” means individually the Customer or MS-OMICS and “Parties” means collectively both Customer or MS-OMICS;
- “Customer” means a buyer of MS-OMICS’s products or services, and means the person or company identified as the customer in the Work Order and/or Service Agreement and referred to as “Customer” in these Terms and Conditions;
- “Results” means reports, drawings, data and other tangible deliverables described in the Work Order resulting from the Services;
- “Services” means the services detailed in the Work Order which MS-OMICS provides to and approved by the Customer;
- “Work Order” means any services, project, work or brief to be undertaken by MS-OMICS for the Customer as detailed in a specific project plan (which will be included in the Work Order), as may be amended from time-to-time by written agreement.