General Terms and Conditions (GTC) of rqmicro AG
Welcome to rqmicro AG (“rqmicro”) and thank you for your interest in purchasing our products. If you have any questions about our quotation or ordering process, please call our Customer Service using the number of your region available on our web page www.rqmicro.com.
1.1 Products: (i) rqmicro.COUNT instrument (instrument and software): Portable, cartridge-based flow cytometer with integrated instrument software. (ii) rqmicro.COUNT Cloud Solution (software): Online platform for managing the measurement results. (iii) Cartridges (consumables): Well plates for sample preparation and measurement in the rqmicro.COUNT instrument. (iv) Kit(s) (consumables): Reagents and solutions for the flow cytometric detection of cells. (v) Laboratory equipment (third party products) for sample preparation and handling. (vi) Pre-Filtration Adapter (equipment): Extension made of stainless steel for use on commercial filtration units. Allows for sequential filtration of samples.
1.2 Custom Products: products as defined in paragraph 1.1, which are produced based on customer-specific specifications.
1.3 Services: rqmicro.COUNT installation, provision of the Cloud Solution, warranties, instrument repairs and training, if necessary.
2. Contract Terms
These are the contract terms and conditions (“Terms”) under which we sell our products and services to you. Some of our products and services are subject to software licenses, limited use label licenses or other written contract terms that you will not find here (“Supplementary Terms”). You can find Supplementary Terms in our quotation to you, on our website, and in literature that accompanies the product or service. You may also obtain copies from Customer Services. These Terms, together with our quotation (if any) and Supplementary Terms (if any), create the contract (“Contract”) between us for the purchase and sale of products and services. The Contract between us is created when we accept your order, either by sending a written confirmation, or by shipping the product or otherwise initiating action to provide what you have ordered. The Contract is between you and rqmicro. If any conditions within the Contract documents conflict with each other, we will give them the following priority: the quotation, Supplementary Terms, and finally these Terms.
3. Delivery, Title and Ordering
3.1 We will try to meet the delivery dates specified in your order, depending on availability and any lead times that may apply. Sometimes we deliver orders in installments. If we do, we may send you a separate invoice for each delivery.
3.2 Once you have placed your order, you cannot cancel it. If delaying the date of delivery would be helpful, please contact Customer Services to see if we can reschedule your delivery.
3.3 All our products are sold Free Carrier (FCA, Incoterms 2010). Products are delivered when we load them onto the commercial carrier at our facility. At this point you become responsible for risk of loss and damage. If any product is lost or damaged while it is being transported, we will try to help you deal with the issue with the carrier. We do not clear products for import into your country. Doing so is your responsibility. Title to products will pass to you (except for software, where we retain title) upon our delivery of the products to the carrier.
4.1 We want you to receive our products in good condition. You can return products that are damaged or defective on delivery, or correct any shortages, if you contact Customer Services within 5 days from the day you receive the products. When you contact Customer Services, we will give you instructions on returning the products and on replacements. Authorization for all product returns must be approved by Customer Services. If you do not contact us within this five-day period, the products will be deemed accepted, but you will not lose any warranty rights.
4.2 Custom Products that we make in accordance with your specifications can only be returned if the custom products do not conform to the given specifications. In that case, we will, in our sole discretion, either replace the Custom Products or issue a refund to you equivalent to the price you paid for the Custom Products.
The price for products and services is shown in our quotation to you. If we do not provide you with a quotation, the price will be the list price that applies to your country on the date we receive your order. Our prices do not include any taxes (including VAT), duties, levies or other government fees that may apply to your order. If they apply, it will be your responsibility to pay them. If we pay them, we will add them to your invoice. You are also responsible for standard delivery and handling charges, if any. We will also add these charges to your invoice. For details of our freight policy, please call Customer Services.
6.1 You must pay invoices within 30 days from the invoice date in the currency specified in our invoice. Each order is a separate transaction, and you may not set-off payments from one order against another.
6.2 If you are late in making payment, without affecting our other rights, we may suspend delivery or cancel the Contract, reject your future orders, and charge you a late-payment charge, from the due date until paid, at the rate of one percent (1%) per month (=12% per year) or, if less, the maximum amount allowed by law. You agree to pay this late charge when we demand.
6.3 If we appoint a collection agency or an attorney to recover any unpaid amounts, we can charge you and you agree to pay all reasonable costs of collection, including all associated reasonable attorneys’ fees.
7. Product Use and Restrictions
7.1 Unless otherwise stipulated in the Supplementary Terms, all products are intended solely for the microbiological analysis of water samples and associated research and development applications, but not for use in therapeutic or diagnostic procedures on humans or animals.
7.2 rqmicro maintains a certified quality management system according to ISO 9001 and produces according to the relevant requirements in terms of safety, quality and regulatory compliance. Our products comply with applicable laws, regulations and governmental policies and are subject to third-party review where required. We do not validate them for clinical, therapeutic or diagnostic use.
7.3 You must use our products in accordance with our instructions. You are solely responsible for making sure that the way you use our products complies with applicable laws, regulations and governmental policies. You must obtain all necessary approvals and permissions you may need. It is solely your responsibility to make sure the products are suitable for your particular use.
8. Instrument Installation and Related Services
8.1 When you buy an instrument, we usually install it on site and also offer training. rqmicro offers Service Contracts for repairs and software maintenance. Please contact Customer Services for any details.
8.2 If we install or repair an instrument at your premises, it is your responsibility to make sure that the workplace where the instrument is to be located or serviced is safe. We typically do not install instruments for biosafety level-3 or -4 laboratories unless we agree otherwise in writing with you in advance.
8.3 The measurement data is stored on the instrument and by using a Cloud Solution. Purchasing an instrument enables access and use of the Cloud Solution. The corresponding contractual terms can be found in the Cloud Services Agreement (CSA).
9. Limited Warranties
9.1 Limited Warranties for instruments. Unless a different written warranty is included with product literature, we warrant that instruments except the software will be free of defects in materials and workmanship for 12 months (90 days for instrument upgrades) after they are installed, provided however, regardless of installation date, this warranty will not last longer than 15 months from the date of shipment. We also warrant that instruments will perform in accordance with our published specifications when they are delivered. We warrant that spare parts you purchase from us and that we install, or are installed by a company we have certified as an authorized installer, will be free of defects in materials and workmanship for 3 months from the date we deliver them, or, if longer, the original warranty period of the instrument in which the part is installed. We do not warrant parts that you do not purchase from us or we do not install. These parts are sold “as is.”
9.2 Limited Warranties for consumables. Unless a different written warranty is included with product literature, we warrant that each consumable will meet its specifications stated in our published catalogs. This warranty lasts from the time we deliver the consumable until the consumable’s expiry. If we do not specify the expiry date, the warranty will last for 12 months from the date we deliver the consumable.
9.3 Warranties for Equipment. Unless a different written warranty is included in the product literature, we warrant that the equipment is free of defects in material and workmanship and will perform in accordance with our published specifications at the time of delivery and for 12 months thereafter. We ensure that spare parts that you purchase from us are free from defects in material and workmanship for a period of 3 months from the date we supply them. We do not guarantee replacement parts that you have not purchased from us.
9.4 Limited Warranty for instrument-related services. Unless a different written warranty is included with product literature, we warrant that our services will be performed at least in accordance with the customary standard of care for the instrument service industry.
9.5 Exclusions. 1) Our warranties do not apply to defects or failures at instruments or equipment caused by (a) external sources such as short circuits or incorrect voltages or hacking; (b) normal wear and tear; (c) any instrument or equipment sold to you as "used" products; (d) contact with improperly used or unauthorized chemicals or samples; (e) parts excluded from warranty in the Supplementary Terms of the instrument/equipment; (f) repair, modification, alteration, installation, deinstallation or transportation by any person other than us or a person authorized by us; (g) removal or use, storage, handling or cleaning, in an improper, inadequate or unauthorized manner, such as e.g. failure to follow our instructions or operating policies or protocols, operating outside of stated environmental or usage specifications, materials or other products; (h) manufacture to the specifications you have given us; (i) installing any software or interfacing or using the instrument in combination with software or products not approved by us; (j) negligence, accident or acts of nature. 2) Our warranties do not apply to defects in consumables that (a) were stored improperly, contrary to instructions, (b) were contaminated or damaged as a result of careless, unhygienic handling, (c) became unusable as a result of negligence, accident or acts of nature. Generally, we may void your warranties if you ship your products outside of the countries where rqmicro currently sells its products.
9.6 Submitting Warranty Claims and Remedies. 1) If a product does not meet our warranty, you must notify Customer Services in writing during the warranty period and as soon as reasonably practicable after you discover the failure. For valid product claims timely made, we will replace or repair the product, or provide you with a credit for the price you paid, at our option, after you return the product to us in accordance with the instructions received from Customer Services. 2) If you wish to make a claim for a breach of our instrument-related service warranty, you must do so within 90 days after we complete the service. For valid service claims timely made, we will re-perform the services or refund you the price charged to you for the services, at our option.
9.7 Limitations. Our warranties extend only to you, the original purchaser, and you cannot transfer them. In no event will our total liability for breach of warranty exceed the purchase price of the product or service. The above warranties are exclusive, and we make no other representations or warranties of any kind whatsoever, express or implied, including without limitation any implied warranties of merchantability or fitness for a particular purpose, of non-infringement, or regarding results obtained through the use of any product or service, whether arising from a statute or otherwise in law or from a course of performance, dealing or usage of trade, all of which are expressly disclaimed.
10. Third Party Products
We do not support or make any warranties about products manufactured by third parties you purchased through one of our sales channels. When you buy a third party product, we will let you know that this purchase is governed by the third-party’s own contract terms. You must look directly to the relevant third-party manufacturer for product support, warranties, and to make warranty claims.
11. Custom Products
11.1 When you ask us to manufacture a Custom Product, for example an application-specific test kit or other another product with non-off-the-shelf elements, we may decline the design or manufacture of such Custom Product, at any stage of the design or manufacture process, if the Custom Product is unsuitable or commercially impractical to be produced in that way. If that is the case, we will notify you as soon as possible and you will not be obligated to pay any fees for any expenses incurred by us in connection with a declined product.
11.2 By submitting an order for a Custom Product you confirm and agree that (a) you have provided us with all information that you are aware of regarding any biological, radiological and chemical hazards associated with the handling, transport, exposure or other usage of the materials you supply to us; and (b) you have the right to cause the sequences that you requested us to manufacture to be manufactured.
12. Intellectual Property
12.1 You acknowledge that all intellectual property rights relating to our products and services, as between you and us, are solely and exclusively owned by us. Unless otherwise provided in applicable Supplementary Terms, our sale of products or services to you only grants you a limited, non-transferable right under such intellectual property, for only you to use the quantity of the products that you have bought from us and to perform fee-for-services. No right to resell our products or any of their components (excluding the right to offer fee-for-services) is conveyed expressly, by implication, or by estoppel. If you need commercial use rights to our products for reselling, please contact email@example.com. To the extent that your use of our product is outside the scope of the Contract, it is solely your responsibility to acquire additional intellectual property rights related to such use (“Additional Rights”). Nothing in the Contract limits our ability to enforce our intellectual property rights.
12.2 In relation to processes, methods or related synthesis of a Custom Product, or otherwise in connection with the design or manufacture of a Custom Product, any inventions (patentable or otherwise), discoveries, improvements, data, know-how or other results that are conceived, developed, discovered, reduced to practice, or generated by or for us, or jointly by us and you, will be and will remain our sole and exclusive intellectual property, and you transfer and assign all of your right, title and interest in and to any such joint intellectual property to us and will assist us, at our request and at our expense, in securing and recording our rights in such intellectual property.
12.3 You may not sell, rent, lease, loan, transfer or assign any instrument that contains or requires software for operation or other use unless you first permanently delete or uninstall the software. Licenses to our software and software products respectively are not transferrable.
13. Intellectual Property Indemnity
13.1. Our Indemnity of You. We will defend and indemnify you from and against infringement damages finally awarded in any legal action brought by a third party against you to the extent that the action is based on a claim that our manufacture and sale of a product infringes any patent, copyright, trademark or other intellectual property right of such third party if we had actual knowledge of such intellectual property right and the actual infringement at the time of delivery of the product to you. This indemnity does not apply to claims that arose based on (i) your failure to comply with the Contract, (ii) your failure to acquire any applicable Additional Rights, (iii) products that we made, assembled or labeled in reliance upon your instructions, specifications, or other directions, (iv) your use or resale of products, or (v) modifications made by you or any third party. This indemnity does not apply to products originating from third parties. THIS INDEMNITY IS OUR ONLY LIABILITY TO YOU, AND YOUR ONLY REMEDY, FOR ANY INFRINGEMENT OR CLAIMED INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY OR IN CONNECTION WITH ANY PRODUCT. As a condition to this indemnity, you must (i) notify us in writing, as soon as you become aware of any claim; (ii) not admit any liability or take any other action in connection with the claim that could affect the defense; (iii) allow us to solely control the defense or settlement of the claim; and (iv) give us your reasonable information, co-operation and assistance.
13.2 Your Indemnity of Us. If a third party makes a claim against us for infringement of its intellectual property rights based on (i) our manufacture or sale of a product we make under your instructions, specifications, or other directions, (ii) your failure to comply with the Contract, (iii) your failure to acquire any applicable Additional Rights, (iv) our use of materials you provide to us, or (v) your modification, use or resale of a product, then you will indemnify and hold us harmless from and against any and all claims, losses, damages, liabilities and expenses (including reasonable attorneys’ fees and other costs of defending and/or settling any action) that we may have to pay as a result of the claim.
13.3 Avoidance. We wish to avoid claims of intellectual property infringement. If we believe a product may be subject to a claim for intellectual property infringement, then you will allow us, at our option and expense, to either: (i) secure for you the right to continue using the product; (ii) substitute the product with another suitable product with similar functionality; or (iii) require you to return the product to us for a refund of the purchase price you paid. In the case of instruments, we will deduct a reasonable amount for the instrument’s use, damage and obsolescence.
14. Limitations of Liability
14.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL NOT BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, MULTIPLE, COLLATERAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE) THAT YOU MIGHT INCUR UNDER THE CONTRACT, OR THAT MAY ARISE FROM OR IN CONNECTION WITH OUR PRODUCTS OR SERVICES, EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, OUR MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT, OR ANY PRODUCT OR SERVICE, IS LIMITED TO THE AMOUNT YOU PAID TO US FOR THE PRODUCT OR SERVICE PURCHASED. HOWEVER, THESE PROVISIONS DO NOT LIMIT OUR LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR FRAUD, FRAUDULENT MISREPRESENTATION OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY LAW.
14.2 DELIVERY DATES AND TIMES ARE ESTIMATES ONLY AND WE WILL NOT BE LIABLE (IN CONTRACT, DELICT, TORT OR OTHERWISE) FOR ANY LOSSES, EXPENSES, CLAIMS OR DAMAGES CAUSED BY A LATE DELIVERY.
15. Export Control
Products and information that you receive from us are subject to Swiss and local export-control laws and regulations. You may not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any such product or information (including products derived from or based on our products or information) to any destination, entity, or person prohibited by Swiss or local laws or regulations.
16. Data Protection
17. Entire Contract
17.1 The Contract represents the entire agreement between you and us regarding the products and services we provide to you under it and supersedes and replaces any previous agreements between us (whether written or oral). Any of your additional or different terms and conditions that you may provide to us, are material alternations and we reject them. Our offer to sell products and perform services is expressly limited to the terms of the Contract. If you submit a purchase order, or other document for the purchase of products or services, whether or not in response to a quotation, you are deemed to have accepted and agree to the Contract, to the exclusion of (a) any other terms and conditions appearing in or referenced in your purchase order or other documents you give to us, and (b) any previous course of dealing, course of performance, trade usage or co-existent agreement. The Contract cannot be amended or modified unless you and we agree in writing.
17.2 We reserve the right to change these Terms at any time. Any changes made to these Terms will not apply to the Contract between us for any order we receive before the changes are made. The most recent revision date can be found at the end of these Terms.
18.1 We will not be responsible or liable for failing to perform our obligations under the Contract to the extent caused by circumstances beyond our reasonable control. In certain situations, we may use our reasonable judgment and apportion products then available for delivery fairly among our customers.
18.2 Our failure to exercise any rights under the Contract is not a waiver of our rights to damages for your breach of contract and is not a waiver of any subsequent breach. If any provision or part of the Contract is found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of the Contract. No person other than you or us will have any rights under the Contract. Headings are for convenience only and shall not be used in the interpretation of these Terms.
18.3 You agree to keep confidential any non-public technical information, commercial information (including prices, without limitation) or instructions (including any gene sequences, oligo types or sequences) received from us as a result of discussions, negotiations and other communications between us in relation to our products or services.
19. Governing Law
The Contract and the performance under it are subject to substantive Swiss law without regard to conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the contract. Exclusive place of jurisdiction is Zurich, Switzerland, predominant places of jurisdiction remain reserved.
Revision date: 2023-11-02