GENERAL TERMS AND CONDITIONS
Valid as of 1st December 2018
These General Terms and Conditions (hereinafter referred to as “T&C”) of LumiraDx and its Affiliates (hereinafter referred to as “LumiraDx”) shall apply to all sales and deliveries made by LumiraDx to a customer. A customer acknowledges by placing an order or by accepting product delivery the applicability of the T&C. The T&C shall also apply to all future transactions with the same customer. General terms and conditions of the customer, if any, shall in no event apply even if LumiraDx has not expressly rejected them. These T&C shall apply only vis-à-vis companies, entrepreneurs, public law governed legal persons or public law funds.
2. Conclusion of contract
2.1 LumiraDx’s offers are nonbinding and subject to change. A contract becomes only effective upon written confirmation of a customer order by LumiraDx. The content of the contract shall be based exclusively on the order confirmation and these T&C. Verbal arrangements of any type are nonbinding and require confirmation in writing by LumiraDx to become binding.
2.2 LumiraDx reserves all rights to the sales documentation (including illustrations, drawings, weight and dimension information) and the samples and designs. They shall not be disclosed to third parties and shall be immediately returned to LumiraDx upon request. Such documents may only be disclosed to third parties upon prior written consent of LumiraDx.
2.3 Members of LumiraDx’s sales organization are not authorized to conclude, amend, terminate agreements or to make binding statements relating to products or other terms and conditions.
3. Delivery terms and dates
3.1 Delivery terms and dates shall only be binding if confirmed in writing by LumiraDx, and if the LumiraDx has been provided timely with all information and documentation required for the delivery, and if agreed down payments have been paid. Any agreed delivery terms shall commence upon the date of the confirmation of order. In case of later order changes, delivery terms shall be extended accordingly.
3.2 Unless otherwise agreed with the customer, LumiraDx will ship the products to the customer. To the extent that regular delivery intervals of reagents have been agreed, LumiraDx shall dispatch them in case of agreed delivery from the German LumiraDx warehouse by the 6th business day of each delivery month.
3.3 In case an event occurs for which LumiraDx bears no responsibility like events that cannot be foreseen, are unavoidable or that are beyond LumiraDx’s sphere of influence including Acts of God, war and natural disasters, LumiraDx shall be released for the period of such event from its obligation to deliver and perform timely. Agreed delivery dates shall be extended by the period of such event; LumiraDx will inform the customer in such case adequately. Either Party may withdraw from a contract if the period for which such event lasts cannot be foreseen or if such event continues for more than two months.
3.4 In case of customer’s (i) default of acceptance or (ii) violation of cooperation obligations LumiraDx shall be entitled to store the products adequately at customer’s risk and costs. Without prejudice to its other rights, LumiraDx shall be entitled to withdraw from the contract if an adequate deadline being set for the acceptance of the products expires unsuccessfully.
3.5 If justified LumiraDx shall be entitled to partial deliveries to the extent reasonable.
4. Dispatch, transfer of risk, insurance policies
4.1 LumiraDx may determine the type of shipment. Except if agreed otherwise, all products will be shipped LumiraDx Ex-Works, LumiraDx’s point of shipment (Incoterms 2010)
4.2 Unless agreed otherwise with the customer, the risk of accidental loss or deterioration by chance transfers to the customer upon LumiraDx having handed over the products to the carrier, shipper or any other person or institution appointed to effect the shipment.
4.3 Insurance shall be obtained only upon request and at the expense of the customer.
4.4 Delivery and insurance charges will be added to the contract price of the goods and shall be payable at the same time and upon the same terms as the contract price of the goods. Delivery and insurance charges will be notified to the customer on or after the contract date.
5. Prices, payment terms
5.1 Unless a specific product price was agreed upon, LumiraDx’s latest pricelist (as amended from time to time) shall apply. LumiraDx reserves the right for a price adjustment in case a delivery is made later than 4 months as from the contract date for reasons the customer is responsible for.
5.2 Each invoice shall be due for payment into the indicated bank account within 30 days as from the invoice date without deduction. Payment means receipt of payment by LumiraDx. VAT is always applicable unless a valid VAT exemption certificate is provided to the supplier.
5.3 To the extent payment default has not been caused by a reminder of LumiraDx, the customer will be in any case in payment default as from 30 days upon due date and receipt of the invoice.
5.4 In case of payment default LumiraDx may charge interest of 4 % p.a. above base interest rate as set by the Bank of England (as applicable from time to time) per annum. All rights to claim for additional default damages shall remain unaffected.
5.5 If it becomes evident to LumiraDx after conclusion of a contract that the performance capability of a customer is at risk, LumiraDx shall be entitled to deliver open orders only against payment in advance or deposit. If requests for advance payment or deposit are not settled within a reasonable deadline, LumiraDx shall be entitled to withdraw from the contract entirely or partially without prejudice to any of its other rights.
5.6 The customer shall only be entitled to set off its counter-claims if undisputed or having become res judicata.
5.7 The ordering party is only entitled to enforce a right of retention if its counter-claim is based on the same contract and is undisputed or has been recognized by declaratory judgment.
5.8 LumiraDx reserves the right to request advance payments of the invoice amount prior to delivery of the ordered product.
6. Warranty, obligation to inspect
6.1 Customer’s warranty rights shall only exist if a customer has duly performed a reasonable inspection and notified LumiraDx of any identified issues.
6.2 In each case of a customer complaint regarding defects, LumiraDx shall have the right to inspect and examine the respective products. The customer shall grant LumiraDx adequate time and opportunity to do so. LumiraDx may instead request from the customer to return the products at LumiraDx’s costs. In case of a return request, the products must be disinfected and all applicable specific hazard regulations must be observed. If the customer complaint turns out to be unjustified due to intent or gross negligence, the customer shall be obliged to compensate LumiraDx for all the costs caused in this context – e.g. travel and fitter expenses or shipping costs.
6.3 In case of statutory warranty LumiraDx is entitled to rectify defects at its option by means of either free of charge repair or by replacement delivery of a defective item or by free of charge replacement delivery of the entire defective product.
6.4 The customer shall grant LumiraDx adequate time and opportunity to rectify defects.
6.5 If LumiraDx has replaced parts, the ownership of the replaced parts shall transfer to LumiraDx.
6.6 LumiraDx assumes no liability for damages caused by inappropriate or improper use, faulty assembly, faulty commissioning, faulty treatment or faulty installation by the ordering party or resulting from normal wear and tear unless LumiraDx is responsible for such damage.
6.7 Material, shipment and personnel costs caused by a rectification of defects (repair, replacement delivery) shall be borne by LumiraDx provided the notified defect has been established.
6.8 If the rectification of a defect (repair, replacement delivery) fails, the customer, at its option, may withdraw from the contract or request an adequate reduction of the price.
6.9 The warranty limitation period for newly manufactured products shall be 12 months and for used products 6 months as from delivery. Test strips shall be as per product specifications provided.
6.10 All further claims of the customer shall be excluded unless otherwise provided for in Section 7.
6.11 If and to the extent that product labeling / inserts refer for specific products to a longer warranty limitation period than stipulated in Section 6.9, such longer warranty limitation period shall apply in favor of the customer.
6.12 Test strips and consumables have a limited shelf life or, respectively, a expiration date which are indicated on the product packaging and/or in the product information and/or in product manual. Such products may in no event be used after the expiration of the shelf life or, respectively, after expiration date.
7. Compensation and limitation on liability
7.1 LumiraDx shall be liable
(i) for damages caused intentionally or gross negligent by LumiraDx or its directors or vicarious agents ;
(ii) for damages caused by the violation of essential contractual obligations due to slight negligence, the damage shall however be limited to such damage amount being foreseeable in context with such contract;
(iii) for damages under the regulations of mandatory liability law;
(iv) for personal injuries culpably caused by LumiraDx or its directors or agents.
7.2 LumiraDx shall not be liable for damages if none of the categories set forth in Section 7.1 applies. In particular LumiraDx will not be held liable for the consequences of incorrect modification or treatment of the goods nor – particularly where medical technology devices are concerned – for the damage caused through the use of unsuitable reagents, nor for the consequences of inadequate maintenance on the part of the purchaser or a third party, and not for any defects attributable to normal wear and tear or transport.
7.3 Clauses 7.1 and 7.2 shall apply to all claims for compensation, irrespective of their legal grounds, and in particular also to any liability resulting from tortious acts, a positive violation of contractual duty and fault during contract negotiations.
7.4 The ordering party is obliged to take appropriate action to prevent or mitigate the damage.
8. Supply of LumiraDx Products and Services
8.1 With regards to the use or purchase of software, the terms of the end user agreements (EULA’s) - including but not limited to the LumiraDx Platform Software license - with regards to such software shall apply .
8.2 Customer shall purchase the products for its own use only,and shall not resell or transfer the products to any other party. Customer represents it has evaluated the products and that they are acceptable and clinically suitable for its intended purposes.
8.3 In case of non-payment with regards to LumiraDx products and/or services LumiraDx shall be entitled to suspend or terminate access or use of the LumiraDx Instruments until payment is made.
8.4 Trademarks and Trade Names. All sales and rentals are made with the understanding that LumiraDx trademarks, Trade Names and original packaging will not be misused.
9. Product liability
If the customer sells delivered products either in an unchanged form or after having combined them with other goods, the customer shall indemnify LumiraDx internally from product liability claims of third parties to the extent the customer is liable for the default causing liability vis-à-vis third parties.
10. Intellectual property rights
If the customer determines how LumiraDx shall manufacture products to be delivered by means of instructions, information, documents, drafts or drawings, the customer shall be responsible that the rights of third parties including such as patents, utility models or other intellectual property rights and copyrights will not be violated by LumiraDx. The customer shall indemnify LumiraDx from all claims of third parties, who may enforce them against LumiraDx as a result of such a violation.
11.1 Changes and amendments to the contract and/or these T&C as well as side agreements require written form. This shall also apply to this Section 11.1.
11.2 If a provision of this contract and/or these T&C should be entirely or partially be invalid or ineffective, this shall not affect the validity or effectiveness of the remaining provisions. In this case, the parties are obliged to replace the invalid and ineffective provision with a valid and effective provision which comes as closest as possible to the intended commercial purpose of the invalid or ineffective provision. If and to the extent that terms and conditions including warranties and warranty limitations contained in product labeling and/or product inserts conflict with these T&C, the T&C shall have priority except in cases referred to in Section 6.11.
11.4 This contract shall be governed by and construed in all respects in accordance with the laws of England and Wales and the customer hereby submits for all purposes of and in connection with this contract to the exclusive jurisdiction of the Scottish Courts.