General Terms & Conditions
General Terms & Conditions
1. Scope
- These general terms and conditions apply to, and form an integral part of, all quotes, offers, proposals, orders and agreements related to the supply of any products and services by Diagnoptics Technologies BV (hereafter “Diagnoptics”). Any terms and conditions of Purchaser do not apply, notwithstanding any provision contained therein that provide otherwise. Any deviations of these general terms and conditions do not apply unless Diagnoptics accepted these explicitly in a signed agreement. By placing an order, Purchaser accepts these general terms and conditions.
- Unless otherwise stated, Diagnoptics’ offers are valid for a period of 30 days as from the offer’s date.
- In these general terms and conditions, Diagnoptics and Purchaser are referred to individually as a “Party” and jointly as “the Parties”.
2. Definitions
1. In the Agreement, the following terms have the following meaning:
“AGE Guide”: an application for mobile devices provided by Diagnoptics that collects and provides diagnostic data and measurement data, and any other data and that is the subject of the Services.
“AGE Scanner”: a hardware product manufactured on behalf of Diagnoptics that uses ultra-violet light to excite autofluorescence in human skin tissue in order to read the level of Advanced Glycation End products.
“Agreement”: the Agreement, including the Exhibits or any documents referred to therein or added thereto upon mutual written agreement by the Parties.
“Confidential Information”: any information, data, materials or knowledge kept in whatever form (whether on paper or transmitted or stored electronically) belonging to, concerning or under the control of one of the Parties (the “Disclosing Party”), which is made available or disclosed to the other Party (the “Receiving Party”) in connection with the Agreement and which is commercially proprietary, sensitive, non-public or confidential by nature, whether or not explicitly indicated as such by one of the Parties. Information that will in any case be considered confidential includes: (i) trade secrets, (ii) software (both in source and object code), non-public documentation and knowhow about any technical processes, the Platform and the web interfaces, (iii) information regarding business operations and strategies, (iv) the contents of the Agreement, and (v) any promotions offered by Diagnoptics to Purchaser. Information which will not be considered as confidential includes any information of which the Receiving Party can demonstrate that (i) it was in the possession of, or was rightfully known by, the Receiving Party without an obligation to maintain its confidentiality prior to receipt from the Disclosing Party; (ii) was or has become generally available to the public other than as a result of disclosure by the Receiving Party or its agents; (iii) after disclosure to the Receiving Party, was received from a third party who, to the Receiving Party’s knowledge, had a lawful right to disclose such information to the Receiving Party without any obligation to restrict its further use or disclosure; (iv) was independently developed by the Receiving Party without use of or reference to any
Confidential Information of the Disclosing Party; or (v) the Disclosing Party has disclosed it to unaffiliated third parties without similar restrictions.
“Data Protection Legislation”: EU Regulation 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (“GDPR”), any and all applicable national executing laws and regulations thereof, and any other current or future applicable international, national or sectoral law or regulation concerning the processing of personal data.
“End-User”: a natural person who has their Advanced Glycation End levels measured with the AGE Scanner and who uses the AGE Guide to receive advice.
“Force Majeure Event”: any circumstances beyond the control of a Party, that could not reasonably have been foreseen and that prevent the total or partial performance of any obligation under (i) the Agreement, or (ii) any agreement or document further thereto, or that fundamentally alter the financial burden to perform the obligations under the Agreement, such as but without limitation, natural disasters, war, terrorist attacks, violence, civil war, insurrection or riot, boycott or embargo, fire, natural disasters, natural phenomena, weather conditions flood, storm, earthquake, heavy rain or snowfall, water damage, drought, electrical disconnection as a result of any of the above events, strikes, labor disputes, slowdown or interruption of work, explosion, occupation, national emergencies, interruption of utilities such as telecommunications, the internet, networks and electronic means of communication the cause of which falls outside the control of Diagnoptics, acts or omissions of any governmental authority or agency or inability to procure equipment, data or materials from suppliers attacks by third parties on the IT systems of Diagnoptics or its suppliers, errors, malfunctions and interruptions in software or IT systems of third parties that are required for the availability or operation of the products or Services, blockages or saturations of the bandwidth, acts or force majeure of subcontractors, technical defects and electrical breakages.
“Intellectual Property Rights”: all brands, logos, trademarks and their associated goodwill, service marks, internet domain names, models and designs, patents, copyrights (including all rights relating to software) and moral rights, rights relating to databases, software, knowhow, and other rights, as well as all other industrial and intellectual rights, in any case independent from whether or not they have been registered and with the inclusion of registration applications as well as all equivalent rights or means of protection leading to a similar result anywhere in the world.
“Platform”: Diagnoptics’ online software platform accessible through a mobile application which allows the management, extraction of data, scheduling, diagnosis, analysis and follow-up of an AGE Scanner and use thereof. A more detailed description of the functionalities of the Platform can be found in the technical specifications made available by Diagnoptics upon request.
“Services”: the services to be provided under the Agreement, as further described in Exhibit 2, which include (1) enabling access for Purchaser and End-Users to the Platform and the AGE Guide; (2) enabling data communication between the Platform, the AGE Scanner and the AGE Guide; and (3) maintenance and updating of the Platform and AGE Guide.
“Software”: the Platform or any software, documentation or data related to or provided with the Services, including, without limitation, the software that operates the Platform, interfacing software, firmware and app code,
“Start Date”: the date of delivery and/or installation of the AGE Scanner, or the start date of the subscription to AGE Guide.
“Platform User”: each member of Purchaser’s personnel or each other natural or legal person who uses the Platform on behalf of Purchaser.
“Websites”: Diagnoptics’ websites, which can currently be found at https://www.diagnoptics.com, https://www.age-scanner.com and www.agereader.health.
“Workday”: any day except for Saturdays, Sundays and Dutch official holidays.
2. Purpose of the App
AGE Guide helps Complementary and Alternative Medicine (CAM) professionals measure and document Advanced Glycation End-products (AGE) values for their clients. The App is intended for professional use only. Practitioners are responsible for obtaining explicit consent from each client before entering any personal or health-related information into the App. Users can delete their account or request removal of stored data directly within the App’s settings.
3. Subject matter
2. Such provision of services by Purchaser using the AGE Scanner to third parties will not create or constitute a contractual relationship between Diagnoptics and such third party clients. There will only be a limited relationship between Diagnoptics and End-Users in case of use by End-Users of the AGE Guide, as defined in the End-User License Agreement for the AGE Guide (the current version of which is set forth in Exhibit 4).
4. Purchase of AGE Scanner
1. The technical specifications of the AGE Scanner are available on the Websites. By purchasing an AGE Scanner, Purchaser agrees and confirms that Diagnoptics has provided all information required for Purchaser to assess the specifications of the AGE Scanner and the functionalities it provides.
2. The AGE Scanner is provided “as is” and “as available”. As the AGE Scanner is dependent on software, flawless operation of software at all times and in all circumstances cannot be guaranteed. Technological changes introduced by e.g. security events, market conditions and other factors may require that the hardware and/or firmware of the AGE Scanner are changed, updated and/or upgraded from time to time. Purchaser agrees that Diagnoptics will, at its own discretion, be entitled to release firmware updates for the AGE Scanner from time to time. However, the hardware of an individual AGE Scanner cannot be upgraded. Diagnoptics warrants backwards compatibility of its Platform with the hardware of a specific version of the AGE Scanner for a period of three (3) years as from the release of the specific version.
3. Title to the AGE Scanner will pass from Diagnoptics to Purchaser only upon receipt of payment of all amounts due. Purchaser will not encumber any of the AGE Scanners under retention of title with any real rights nor modify the AGE Scanners in any way.
4. Purchaser will have two (2) Workdays as from the delivery date to inspect the conformity of the delivered AGE Scanners. If no notification by mail of a defect or flaw has been received by Diagnoptics within that time, Purchaser will be deemed to have accepted the AGE Scanner and, where applicable, the installation thereof. Any defect or flaw reported after such time will be remedied by Diagnoptics through the replacement of the AGE Scanner, subject to its prior receipt of the payment for the replacement as set forth in Exhibit 1. Purchaser will in any case cooperate with Diagnoptics in good faith towards acceptance. The acceptance will always cover all perceivable defects of the AGE Scanner.
5. Diagnoptics grants a warranty for any latent defect in an AGE Scanner that extends to two (2) years for Purchasers located in the European Economic Area, and one (1) year for Purchasers located outside the European Economic Area. Purchaser acknowledges that the repair of a defective AGE Scanner(s) is a costly remedy and consequently the warranty will be limited to a replacement of the defective AGE Scanner. The defective AGE Scanner(s) will be returned by Purchaser as will be agreed with Diagnoptics. Unless Diagnoptics has made an attributable error in the installation of the AGE Scanner for Purchaser, Purchaser will compensate Diagnoptics for the costs and expenses associated with the transportation performed for replacing the AGE Scanner. In case of a general product recall, Purchaser will assist Diagnoptics insofar as is reasonably needed to prevent or mitigate any damage or costs involved.
6. Diagnoptics does not warrant that Purchaser’s or any End-User’s intended use of the AGE Scanner complies with any applicable provisions of mandatory law. Purchaser agrees that the AGE Scanner is intended solely for general wellness and lifestyle support and does not constitute the practice of medicine, nursing or other professional healthcare services. Purchaser agrees that the AGE Scanner does not provide medical diagnosis, treatment, or prescriptions, and is not designed for use in emergencies or for monitoring of conditions that require immediate medical attention.
5. Supply of Services
1. Unless otherwise agreed upon, Diagnoptics will provide the Services to Purchaser as from the Start Date. To provide the Services, it is necessary that Purchaser purchases the subscription to the AGE Guide.
2. Diagnoptics may at any time temporarily suspend access to and use of the Platform and Services for maintenance purposes of the Platform or Services or their underlying IT systems or due to maintenance work or other causes at its sub-contractors (such as hosting providers), or where according to Diagnoptics, suspension of the Services will prevent or usefully inhibit a serious threat to the confidentiality, integrity or availability of the Services. Except in case of urgency, Diagnoptics will make all reasonable efforts to notify the start time and probable duration of that maintenance in advance. In case of urgency or if Diagnoptics is not able to communicate this in advance (for instance because its sub-contractors have not informed it in advance), Diagnoptics will inform Purchaser as soon as possible.
3. Notwithstanding any other provisions of the Agreement, Diagnoptics may make changes to the delivery of the Services, the Platform, the AGE Guide, standards, operating procedures, accessibility periods, allocation and quantity of system resources used and administrative and operational methods, systems or algorithms, provided. When doing so, Diagnoptics will use its best efforts not to materially and adversely affect the Services. Purchaser acknowledges that the Services are a recent offering of Diagnoptics that may evolve and may require changes that are unavoidable. Insofar as is reasonably possible, changes will not cause an increase to the agreed fees and charges. In case of an increase to the fees and/or charges, Purchaser will be notified and will be entitled to terminate the Agreement by registered letter on one (1) month prior notice.
4. Purchaser will not, and warrants that any Platform Users will not, use the AGE Guide or any of its components in any manner that could damage, disable, overburden, impair or otherwise interfere with Diagnoptics’ supply of the AGE Guide. Purchaser will be responsible for the correct use of all components of the Services by all Platform Users.
6. Intellectual property
1. Subject to Purchaser’s complying with the Agreement and having paid all amounts due, Diagnoptics hereby grants to Purchaser during the term of the Agreement a non-exclusive, non-assignable, sub-licensable, revocable and worldwide license to access and use Diagnoptics’ firmware, Software, and any related documentation provided by Diagnoptics solely for the performance of the current Agreement and in particular for Purchaser’s use of the AGE Scanner for readings and providing third parties with scan results. The Platform will be accessible online only on the URL indicated by Diagnoptics. No license is granted to source code of any kind.
2. The performance by Diagnoptics of its obligations and the fees and charges paid by Purchaser under the Agreement will not entail a transfer of any Intellectual Property Rights to Purchaser.
3. Any Intellectual Property Rights with respect to any works created by Diagnoptics or its employees or contractors, whether or not created in the performance of the Agreement, such as software, documentation and any materials, documents, drawings, technology, processes, skills, know-how and information related to the software, will be vested exclusively in or licensed to Diagnoptics and/or its respective licensor.
4. Unless in so far as allowed by mandatory applicable law or explicitly provided in the Agreement, Purchaser will not, and Purchaser warrants that Platform Users will not, directly or indirectly, irrespective of the format (electronic, paper, on a computer screen, screenshots, etc.): (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Software, (b) modify, translate, or create derivative works based on the Platform, Services or Software, copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software, (c) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to Diagnoptics, and (d) remove any proprietary notices or labels from the Services or Software.
5. Platform Users and Purchaser are expressly prohibited from downloading, copying, extracting, screen capturing, copy-pasting, or otherwise transferring or reproducing any information, data, content, or materials from the knowledge database or any other part of the AGE Guide to any other medium, device, or platform, whether electronic, paper, or otherwise, except as expressly permitted by the Agreement or mandatory applicable law. Any such unauthorized use or transfer of information from the AGE Guide is strictly forbidden.
6. Within the limits provided in the Agreement, Diagnoptics will indemnify, defend and hold harmless Purchaser from any damage, costs and expenses incurred by Purchaser as a result of any third-party claim that any component of the Services, when used within the scope of the Agreement, infringes any Intellectual Property Rights or other rights of any third party, provided that Purchaser promptly notifies Diagnoptics by registered mail of any such claim within ten (10) Workdays upon having been informed of such claim and tenders the control of the defence and settlement of any such claim to Diagnoptics at Diagnoptics’ expense and with Diagnoptics’ choice of counsel. Purchaser will reasonably cooperate with Diagnoptics in defending or settling such claim.
7. If any component of the Services is either (a) subject of any claim for such infringement and Diagnoptics reasonably determines that infringement is likely, or (b) if a court judgement that cannot be appealed found that there is such infringement, then Diagnoptics may, at its option and expense, (i) procure for Purchaser the right from such third party to use the Service component or (ii) replace or modify the Service component with other suitable and reasonably equivalent components so that the component becomes non-infringing.
7. Term and termination
1. Unless otherwise agreed upon, the Services will be supplied for a fixed term of twenty-four (24) or thirty-six (36) months as from the Start Date, as determined in the Agreement, which will automatically be renewed for consecutive periods of one (1) month (hereinafter the “Service Term”), unless either Party gives notice of its intention to terminate the Agreement at least one (1) months before the expiration of the then-current term.
2. Either Party may terminate the Agreement with immediate effect, without recourse to a court and without compensation if the other Party (a) does not perform its obligations and fails to cure such breach within thirty (30) days upon having been notified to do so by registered mail, describing the non-performance in sufficient detail, or (b) petitions for bankruptcy, is declared bankrupt, is being wound up, is liquidated or has lost the free management of its assets.
3. If Purchaser terminates the Agreement early for another reason than those set forth in the preceding paragraph, then the amounts already paid will remain definitely acquired and will not be refundable.
4. Diagnoptics may with immediate effect, without prior notice and without compensation, suspend Purchaser’s access to the Platform and the performance of Diagnoptics’ obligations if Purchaser does not pay an invoice by the due date, if a Platform User infringes the terms or limits of the user license or the Agreement, or in case of a legal, judicial or administrative obligation to do so.
5. Any provisions of the Agreement which, according to their expressed purpose, have effect after the termination of the Agreement, will remain in effect in accordance with their purpose.
6. On termination of the Agreement (i) Purchaser will pay all fees and charges for Services due and payable under the Agreement up to the effective date of termination; and (ii) except for termination by Diagnoptics for Purchaser’s breach of contract, Diagnoptics will use its reasonable efforts to phase out all Services under the Agreement as quickly as reasonably possible in cooperation with Purchaser.
7. Termination of the Agreement, for any reason, will not affect any accrued rights or liabilities or payments due (including payment of all supplied Services up to the date of termination) or the coming into force or continuing in force of any provision of the Agreement which is expressly or by implication intended to come into or continue in force on or after termination.
8. Responsibilities of Purchaser
1. Purchaser is responsible for the availability, compatibility, adequacy, maintenance, performance, responsiveness and security of its own infrastructure, hardware and software that it intends to use in connection with the Services.
2. Purchaser is responsible for the security and confidentiality of the usernames and passwords for access to the Platform that are provided to it or that are created by or on behalf of it, and for the compliance with the Agreement by all persons to whom it grants access to the Platform. Purchaser will not, and warrants that any Platform Users will not, disclose the usernames and passwords to any third parties.
3. Purchaser understands that Diagnoptics’ supply of the Services may be dependent on Purchaser’s timely and effective performance of its responsibilities under the Agreement.
4. Purchaser will provide its Platform Users and End-Users with all necessary instructions and training to make use of the AGE Guide and Platform.
5. Purchaser will (1) respond promptly to all reasonable requests by Diagnoptics for information or decisions relating to the Agreement, to the extent reasonably required by Diagnoptics for the purpose of performing its obligations thereunder; (2) provide appropriately qualified and experienced personnel for the purposes of discussing matters on which Purchaser and Diagnoptics are from time to time required to attempt to agree under the terms of the Agreement; (3) keep the login credentials to the Platform confidential and personal and require the same from its Platform Users; and (4) obtain any consents required for the use of the Services and Purchaser’s hardware, software and other rights, to the extent necessary for Diagnoptics’ performance under the Agreement.
6. If Purchaser fails to comply with its obligations under the Agreement, it agrees to bear all costs and charges related to the extra services performed by Diagnoptics to remedy any issues resulting from Purchaser’s failure to comply with its obligations.
7. Purchaser will obtain all necessary licenses, approvals, permits and consents required, if any, by any applicable governmental or regulatory authority or body which are necessary for Purchaser to use the Services. Purchaser will use the Services in accordance with and subject to all provisions of applicable law. In case of infringement, Purchaser will defend, indemnify and hold Diagnoptics harmless against all claims, penalties and/or fines brought against Diagnoptics that are caused by such infringement.
8. If Purchaser’s use of the Platform can be considered (a) a violation of the terms and conditions of the Agreement or the Intellectual Property Rights or any other right of Diagnoptics or a third party, (b) a threat to the security or integrity of the Platform or any of the Services, (c) a danger to the Platform due to viruses, Trojan horses, spyware, malware or any other form of malicious code, (d) in any way hateful, obscene, discriminating, racist, slanderous, spiteful, hurtful or in some other way inappropriate or illegal, or (e) in direct competition with the commercial interests of Diagnoptics, Diagnoptics reserves the right to immediately revoke Purchaser’s login credentials and block Purchaser’s access to the Platform without prior notice or intervention of a judicial body and without any form of compensation or other claim. Purchaser or any End-User infringing the Agreement will be required to put an end to the infringement.
9. Prices, invoicing and payment
1. The Purchaser will pay to Diagnoptics the fees and charges set forth in the Agreement. Unless explicitly provided, listed prices, fees or charges do not include VAT or other taxes. All prices set forth in the Agreement and Diagnoptics’ offers are in euro, unless otherwise specified, and exclusive of VAT and other taxes or levies. VAT and other taxes and levies will be invoiced to or will be borne by the Purchaser.
2. The Purchaser shall pay invoices in accordance with the terms of payment given in the invoice and/or Agreement. If no specific conditions are stated, the full payment is due before the AGE Scanner is sent for delivery and the Purchaser shall pay within thirty (30) days of the date of the invoice. The Purchaser is not entitled to offset or delay payment. The date on Diagnoptics’ bank statement when the payment is recorded as received, applies as the date on which the payment has occurred.
3. If Purchaser does not pay an invoice by the due date and Diagnoptics sends a payment reminder, then Purchaser will, as of right and without a notice being required, be held to pay the lesser of: i) a lump-sum compensation of 15% of the unpaid amount, with a minimum of forty (40) euro, and as from the due date an interest amounting to the interest rate stated in the provisions of the Dutch Civil Code on statutory commercial interest; or ii) the maximum late fee allowable by law. Partial payments will first be used to cover costs, compensation and interest and will then be deducted from the main balances.
4. Any disputes about an invoice have to be notified to Diagnoptics by motivated registered mail within a period of fourteen (14) days after receipt of the invoice. Afterwards, the invoice will be considered accepted. If Purchaser disputes an invoice or the purchase or Services to which it relates, Purchaser will in any case be bound to pay the undisputed part. Purchaser is not allowed to proceed to settlement or to suspend any of its own commitments, unless Diagnoptics explicitly consents thereto.
5. Any delay in a payment by Purchaser under the Agreement makes all other sums owed to Diagnoptics by Purchaser under the Agreement and any other agreement payable on demand. No set-off is applied between the Parties for mutual claims.
6. Payment of an invoice will always constitute or confirm the acceptance of the products or Services to which the invoice refers.
7. Unless explicitly otherwise agreed upon in writing, the prices of Services are always exclusive of transportation, travel and accommodation costs.
8. Diagnoptics may adapt its prices at each renewal of the Service Term, if it informs Purchaser about the adaptation at least four months prior to the end of the then-current Service Term.
10. Data protection
1. The Parties will process all personal data under the Agreement in accordance with the Data Protection Legislation.
2. As part of providing the Services, Diagnoptics may process personal data of the Platform Users and End-Users. Personal data of the End-User are collected via the AGE Scanner and shared with Purchaser via the Platform or are received from Purchaser directly. For the processing of personal data of the Platform User via the Platform, to facilitate access and allow for Platform User account management, the Parties will both be considered a controller. For the processing of End User data, the Purchaser is considered to be the data controller and Diagnoptics is considered to be the data processor. The terms and conditions governing this processing of personal data are set forth in Exhibit 3.
11. Confidentiality
1. Each Party acknowledges that it may receive or have access to Confidential Information of the other Party in connection with the Agreement. The Receiving Party will keep the Confidential Information of the Disclosing Party confidential and secure and will protect it from unauthorised use or disclosure by using at least the same degree of care as the Receiving Party employs to avoid unauthorised use or disclosure of its own Confidential Information of a similar nature, but in no event less than reasonable care.
2. The Receiving Party may disclose Confidential Information of the Disclosing Party only to any employee, officer, director, agent, contractor or representative who has a need to know the information for the purposes of the Agreement and who is bound in writing to the Receiving Party to protect the confidentiality of the information in a manner substantially equivalent to that required of the Receiving Party in the Agreement. The Receiving Party may also disclose Confidential Information of the Disclosing Party to the Receiving Party’s regulatory agencies and auditors, accountants and legal advisors, and to third parties that are in good faith interested in a merger with or an acquisition of Purchaser, provided that they are made aware of the Receiving Party’s obligations of confidentiality with respect to the Disclosing Party’s Confidential Information and are bound in writing to the Receiving Party to protect the confidentiality of the information in a manner substantially equivalent to that required of the Receiving Party in the Agreement.
3. If any unauthorised disclosure, loss of, or inability to account for any Confidential Information of the Disclosing Party occurs, the Receiving Party will promptly notify the Disclosing Party and will cooperate with the Disclosing Party and take such actions as may be necessary or reasonably requested by the Disclosing Party to minimize the violation and any damage resulting from it and to prevent a recurrence of the violation. In the event of a material breach of this Article, the Receiving Party which is liable for the breach, will be liable to pay an indemnity of 100.000 EUR per occurrence, notwithstanding the Disclosing Party’s right to claim compensation for all additional proven damage.
4. If the Receiving Party becomes legally compelled to disclose any Confidential Information of the Disclosing Party in a manner not otherwise permitted by the Agreement, the Receiving Party will provide the Disclosing Party with prompt notice of the request (unless legally precluded from doing so) so that the Disclosing Party may seek a protective order or other appropriate remedy. If a protective order or similar order is not obtained by the date by which the Receiving Party must comply with the request, the Receiving Party may furnish that portion of the Confidential Information that it determines it is legally required to furnish.
5. Each Party’s Confidential Information will remain the property of that Party. Nothing contained in the Agreement will be construed as obliging a Party to disclose its Confidential Information to the other Party, or as granting to or conferring on a Party, expressly or by implication, any rights or license to the Confidential Information of the other Party. Any such obligation or grant will only be as provided by other provisions of the Agreement.
6. As requested by the Disclosing Party during the term of the Agreement, the Receiving Party will return or provide the Disclosing Party a copy of any Confidential Information of the Disclosing Party. When Confidential Information of the Disclosing Party is no longer required for the Receiving Party’s performance under the Agreement, or in any event upon expiration or termination of the Agreement, the Receiving Party will return all materials in any medium that contain Confidential Information of the Disclosing Party or, at the Disclosing Party’s election, destroy them. At the Disclosing Party’s request, the Receiving Party will certify in writing that it has returned or destroyed all copies of the Disclosing Party’s Confidential Information in the possession or control of the Receiving Party’s or any of its affiliates or subcontractors. The Receiving Party shall not be required to destroy or alter computer-based backup files generated in the normal course of its business, provided that such copies are maintained in confidence and are not readily accessible. Any Confidential Information contained in such backup files shall, however, remain subject to the confidentiality obligations of this Agreement
7. All obligations set forth in this Article will apply for the duration of the Agreement and will survive any termination of the Agreement, irrespective of the cause thereof, for i) in the case of trade secrets, an indefinite period; and ii) with regard to other Confidential Information, seven (7) years or the maximum amount of time permitted in by the applicable local jurisdiction.
12. Warranty
1. Diagnoptics warrants that the Platform and Services will be provided in a professional and workmanlike manner and will use its best efforts to perform its obligations under the Agreement. Diagnoptics does not provide any warranties that are not explicitly provided in the Agreement, such as the fitness for a particular purpose, merchantability or the compliance thereof with any legal or regulatory requirement.
2. Purchaser acknowledges that the Services are a recent offering of Diagnoptics, and that flaws may occur as a consequence of limited operational experience.
3. Purchaser acknowledges that its regulatory obligations and compliance procedures remain its sole responsibility and that Purchaser alone is responsible for compliance of its products, services and procedures with legal and regulatory requirements. Examples of such obligations and procedures could be those related to the safety and security of Purchaser’s workplace, equipment, personnel and sub-contractors. Purchaser confirms that the Services are fully based on Purchaser’s procedures, that Purchaser has sufficiently tested Diagnoptics’ Services in that respect, and that – therefore – Diagnoptics’ Services correctly implement Purchaser’s procedures. Consequently, Purchaser warrants and agrees to indemnify and hold harmless Diagnoptics from any damages, costs and expenses incurred as a result of any demands or claims for third parties arising therefrom.
4. Purchaser guarantees that all data, if any, provided by Purchaser to Diagnoptics are correct and lawful, that these data do not infringe any third-party rights and that Purchaser is authorised to provide them. Diagnoptics bears no liability regarding the verification of data provided by Purchaser or any third party. Purchaser will notify Diagnoptics of any error in the data provided by Purchaser to Diagnoptics and agrees to indemnify, defend and hold harmless Diagnoptics from any damages, costs and expenses incurred as a result of any claims or demands from third parties arising therefrom.
13. Liability
1. Diagnoptics’ responsibility and Purchaser’s right of recovery in the event of defects in the AGE Scanner, AGE Guide, documentation or Services are limited to repair of the defect or the provision of a work-around. If Diagnoptics is unable to do so, Purchaser will only be entitled to compensation for the direct damage actually suffered caused by the defect and within the limits mentioned below.
2. To the extent allowed by applicable law, Diagnoptics will not be liable for any indirect or consequential loss or damage, financial or commercial loss or damage, loss of profits, losses incurred, missed savings, fines, loss of customers, loss of data, damage to reputation, moral damage, and losses or damage as a result of legal or administrative actions taken by third parties against Purchaser, including in case of serious error, whether this loss or damage arises from a breach of contract or duty in tort.
3. In any case will Diagnoptics’ total aggregated contractual and non-contractual liability, including in case of serious error, be limited to the amount excl. VAT paid by Purchaser for the AGE Scanners and Services during the six (6) months preceding the event giving rise to liability.
4. Neither Party will be liable for any claim arising under the Agreement, unless it has received written notice of the claim by registered mail within one (1) year upon the other Party becoming aware or when that Party reasonably should have been aware of the circumstances giving rise to the claim.
5. Diagnoptics will only be liable for damage or loss which Purchaser proves is directly caused by a fault on the part of Diagnoptics, which Purchaser itself could not avoid or mitigate and which Diagnoptics does not remedy within thirty (30) days after receipt of a notice of default, without prejudice to any other agreed upon resolution times. Diagnoptics will not be liable for any interpretation or use of the data by Purchaser or End-Users.
6. Diagnoptics will have no liability for any infringement arising from or caused by (a) the use or copying of any component by Purchaser after Diagnoptics has issued a written notice to Purchaser requiring Purchaser to cease using such component, (b) the use of the component in combination with any software or other component not provided by Diagnoptics, and (c) any version of the component for which any updates, fixes or revisions have been made available by Diagnoptics to Purchaser if such infringement would have been avoided by the installation and use of such updates, fixes or revisions. This section states Diagnoptics’ entire obligation with respect to any claim regarding the intellectual property rights of any third party.
7. With respect to products, software and services originating from a third-party supplier or sub-contractor of Diagnoptics, Diagnoptics cannot be held liable beyond or different from the liability that the third-party supplier or sub-contractor is willing to accept.
8. Except as may be set forth in specific terms and conditions governing the use of the AGE Guide, Diagnoptics does not assume any contractual obligation nor liability vis a vis End-Users.
9. Diagnoptics will not be liable for any claim for damages or fines that are based on any illegal, dangerous or reckless use of the AGE Guide, the AGE Scanner and/or any other component of the Services. Purchaser will prohibit End-Users to use the AGE Guide, the AGE Scanner and/or any other component of the Services in any manner that is illegal or dangerous or that would create any risk for the safety of any property or physical integrity.
10. Diagnoptics will not be liable for damage caused by any lack of performance of third parties, such as, without limitation, cloud service providers, even if such third parties would be considered subcontractors of Diagnoptics by law.
11. Diagnoptics will not be liable for damage caused by any erroneous data received from Purchaser, any End-User, or any third party, that is incorporated in, or used in the context of, the Services.
12. Purchaser ensures that its contracts with its customers and End-Users will include provisions that are at least as protective of Diagnoptics’ interests as the provisions of this Article.
14. Force Majeure
1. A Force Majeure Event will relieve either Party, for so long as such event continues, from those of its obligations under the Agreement, provided that such Party promptly notifies the other Party in writing describing the Force Majeure Event and immediately continues the performance of the obligations concerned when and to the extent that the Force Majeure Event is removed. Neither Party will be entitled to claim damages for any non-performance by the other Party of any of its contractual obligations resulting from a Force Majeure Event. If a Force Majeure Event continues for a period of 30 calendar days, either Party is entitled to terminate the Agreement immediately, without recourse to a court and without damage compensation.
15. Order of precedence
1. If there is a conflict between or among the documents comprising the Agreement, the following order of precedence applies (in the following descending order, the former listed prevailing over the latter): (1) Exhibit 3 – Data Processing Agreement; (2) Exhibit 2 – General terms and conditions; (4) all other Exhibits, schedules or appendices, or referenced documents; it being understood, however, that an Exhibit or other subsequently-executed document may amend or override normally prevailing terms and conditions of the Agreement only if (and to the extent that) the document specifically identifies the provisions of the Agreement which the document is intended to amend or override and the executed version of the document has been signed by an authorized representative of each Party.
16. Miscellaneous
1. Notifications that have to be done under the Agreement “in writing” (with the exception of registered mail) can also be made by e-mail.
2. When providing the Services, Diagnoptics is acting as an independent contractor. The Parties are not in an agency, partner or commercial co-operation relationship and have no authority to represent or bind one another as to any matters except as expressly authorized in the Agreement.
3. Purchaser may not wholly or partly transfer the Agreement or any of its rights or obligations under the Agreement to any third party without Diagnoptics’ prior, written and explicit consent. Diagnoptics may wholly or partly transfer the Agreement or any of its rights or obligations under the Agreement to any third party without Purchaser’s consent.
4. Diagnoptics may refer to Purchaser to potential customers and partners of Diagnoptics and may, for this purpose, use Purchaser’s logos and company name on its corporate Websites, in brochures, on fairs and events and in presentations.
5. Diagnoptics keeps detailed and accurate logs in a secure and automated manner which contain data concerning the Platform Users’ use of the Platform, including access, volume usage and account usage as well as concerning use of the Data Subscription. These logs are kept for invoicing, service monitoring and improvement as well as security purposes. Parties agree that these logs can be used as evidence to demonstrate compliance or breach of the Agreement and all rights and obligations hereunder. The logs will be construed as evidence, unless proof to the contrary.
6. Diagnoptics may subcontract to any third parties any part of the Services, such as hosting, data center, network and communication, database and security services.
7. If any provision in the Agreement is or becomes invalid, non-binding or unenforceable, such provision will be severed from the Agreement, the remainder of the Agreement will remain in full force and effect, and the severed provision will be replaced by a provision that achieves, to the greatest extent possible, the intent of the severed provision.
8. Any delivery times set forth in the Agreement or any other document are merely indicative and not binding. Delivery dates may be subject to the availability of components. Diagnoptics will not be liable for any damage caused by a late delivery.
9. No failure to exercise any right, power or remedy by a Party operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.
10. The Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior representations, writings, communications, negotiations or understandings with respect to that subject matter. Purchaser guarantees that it has not entered into the Agreement on the basis of a statement, representation, engagement, warranty or guarantee that is not expressly provided in the Agreement.
17. Applicable law and jurisdiction
1. The Agreement is exclusively governed by the laws of the Netherlands, to the exclusion of any conflicts-of-law rule pursuant to which the laws of another jurisdiction would apply and of the United Nations Convention on Contracts for the International Sale of Goods.
2. Any contractual or tort dispute related to the Agreement will be adjudicated exclusively by the courts of Diagnoptics’ registered seat on the date of the writ of summons.