Terms and conditions

GENERAL

These General Terms and Conditions of Sale shall apply to all offers, orders and deliveries from Immunitrack regarding materials, data, goods and services (“Deliverables”) unless otherwise agreed and confirmed in writing.

Offers

All offers are made subject to Immunitrack’s final approval. Offers are valid for a maximum period of 30 days from the date of the offer, unless otherwise specifically stated. These General Terms and Conditions of Sale shall be regarded as an integrated part of an offer made.

Order Confirmation

Immunitrack shall be entitled to accept purchase orders partially by making reductions, reservations and deviations. If such partial acceptance is not acceptable to the Customer, the Customer shall inform Immunitrack in writing within 3 business days. If Immunitrack has not received such notification in due time, the order confirmation shall be deemed accepted by the Customer.

PRICES

Unless otherwise explicitly stated, prices are quoted at time of delivery exclusive of taxes and any other duties in the Customer’s as well as in Immunitrack’s country. Where such taxes and duties are explicitly included in the price, Immunitrack may demand that any increase in such taxes and duties is paid by the Customer. The time of payment of the price shall be of the essence.

Immunitrack reserves the right to amend prices without prior notice.

Immunitrack will make every effort to provide Customer with the most accurate and updated information about prices. However, in the event a product is listed at an incorrect price due to typographical, photographic, human, or technical error, Immunitrack reserves the right to refuse or cancel any orders placed for a product listed at an incorrect price.

PAYMENT

Unless otherwise stated in the order confirmation or invoice, payment shall be made in cash 30 days from date of invoice.

The Customer shall not be entitled to withhold payment or make set-offs in repayments and any other amounts due by Immunitrack, which have not been admitted in writing by Immunitrack. If payments by the Customer are overdue, Immunitrack shall be entitled to recover penalty interest of 2% per month or fraction thereof. Title to the goods shall not pass to the Customer until Immunitrack has received in cash or cleared funds payment in full of the price of the goods and all other goods being unpaid.

DELIVERY

The Customer will be under the obligation to pay all freight and insurance charges. Risk of the Deliverables passes to the Customer upon delivery.
Product Information

All information and data contained in Immunitrack’s product information material and price lists are binding only to the extent that they are stated or referred to in the order confirmation.

CUSTOMER OBLIGATIONS

Where necessary in order to enable Immunitrack to render the Deliverables to the Customer, the Customer shall, within the deadline set out in the order confirmation provide Immunitrack with the information (“Customer Information”) and materials (“Customer Materials”) as described in the offer or purchase order or otherwise required by Immunitrack to perform the and deliver the Deliverables.

Customer represents and warrants that it is entitled to disclose to Immunitrack the Customer Information and to provide Immunitrack with the Customer Materials and that the Customer Information and Customers Materials are not proprietary information of any third party.

Customer shall at all times keep a back-up of the Customer Information and a log of the Customer Materials provided by Customer to Immunitrack.

DELAY

If a delay in delivery occurs as a result of one of the circumstances listed as Force Majeure below, or by an act or omission on the part of the Customer, the time for delivery shall be extended by a period, which is found to be reasonable in view of the circumstances causing the delay.

In the event of a significant delay in delivery caused solely by Immunitrack, the Customer may terminate the purchase order being the sole remedy of the Customer. Immunitrack shall in no way or circumstances be liable for loss of production, profit, business or any other consequential indirect loss or non-documented loss.

ACCEPTANCE

The Customer is obliged to thoroughly inspect the Deliverables immediately upon receipt and not later than 5 business days from the date of receipt to ensure that the delivery is in accordance with the specifications in the order confirmation. Any delivery not meeting the specifications of the Deliverables shall be notified to Immunitrack in writing not later than 5 business days from the date of delivery. The notification shall include the number of the purchase order and the date of the invoice and, at Immunitrack’s request the Customer shall return any goods to Immunitrack at the Customer’s expense. If the Customer has not notified Immunitrack of non-conformity within said 5 business days, the Deliverables shall be deemed accepted by the Customer.

DEFECTS

Immunitrack undertakes to remedy defects in goods by the supply of a replacement or, at Immunitrack’s option, by crediting the Customer for the defective goods. The foregoing constitutes the Customer’s sole remedy in respect of defects after passage of the risk. Immunitrack undertakes no further liability whatsoever for defects in Deliverables, irrespective of whether such defects are due to causes arising before the passage of the risk, and irrespective of whether Immunitrack has been guilty of misconduct.

Immunitrack shall in no way or circumstances be liable for loss of production, profit, business or any other consequential indirect loss or non-documented loss. Immunitrack shall not be liable for any defects attributable to faulty treatment, handling, transport, storage, or any other form of negligence caused by others.

INTELLECTUAL PROPERTY

“NeoScreen” means Immunitrack’s MHC assay platform for predicting the immune response to epitopes.

“PrDx Software” means the MHC/epitope stability prediction software developed by Immunitrack.

“Immunitrack Technology” means the NeoScreen and PrDx Software and any and all discoveries, inventions, know-how, data, results, trade secrets and other information and rights of intellectual property related thereto which are developed, generated or reduced to practice by Immunitrack employees, agents or consultants prior to the start of Immunitrack’s Deliverables under an offer or purchase order or outside the scope of the Deliverables.

“Improvements to the Immunitrack Technology” means any development and enhancement of or know-how or new uses and/or modifications to the Immunitrack Technology which is generated after the start of Immunitrack’s Deliverables to the Customer under an offer or purchase order, including such Improvements to Immunitrack Technology that are generated in the course of Immunitrack’s rendering of Deliverables to the Customer.

Immunitrack shall be entitled to use any results generated by Immunitrack in rendering the Deliverables to the Customer for Improvements to the Immunitrack Technology (including where such results are based on or related to Customer Information and Customers Materials).

All rights to Immunitrack Technology and any Improvements to Immunitrack Technology shall at all times be vested in and remain the sole property of Immunitrack.

Inventions, know how, data and other information generated by Immunitrack in rendering the Deliverables that are related to Customer’s Information (including proprietary targets of Customer) or Customer Materials, and all intellectual property rights related thereto, save for any Improvements to Immunitrack Technology, shall be the sole property of Customer, unless agreed otherwise by the parties (“Customer IP”). The Customer may not use, publish or patent such Customer IP until the Customer has fulfilled all of its financial obligations towards Immunitrack under any offer, purchase order or other agreement between the Customer and Immunitrack regarding the subject-matter in full.

Deliverables from Immunitrack to the Customer which concern or include results (including data and materials) that are generated using Immunitrack Technology but excluding the Immunitrack Technology and any Improvements to Immunitrack Technology and Customer IP will be jointly owned by Immunitrack and the Customer (hereinafter “Joint IP”). Immunitrack hereby grants to the Customer a royalty-free, non-exclusive, non-transferrable and non-sub-licensable license to use such Joint IP only for experimental, non-commercial, internal research by the Customer, but excluding any (pre)clinical research of any stage (hereinafter “Research Purposes”).

Immunitrack grants to the Customer the option to obtain an license under the Joint IP other than for Research Purposes (including for commercial purposes) and/or the option to purchase the Joint IP. Upon request of the Customer, the parties shall in good faith negotiate (i) the terms of the license under the Immunitrack Technology and the Joint IP to be set forth in a separate commercial license agreement and/or (ii) the terms for the assignment of the Joint IP to the Customer in a separate assignment agreement.

CONFIDENTIALITY

“Confidential Information” means all information provided by or on behalf of Immunitrack or the Customer in connection with the Deliverables and all data, inventions and information developed in or as a result of the activities undertaken in connection with the Deliverables (including, without limitation, information on Customer Information and Customer Materials, Immunitrack Technology, Improvements to Immunitrack Technology, Customer IP and Joint IP), whether in oral, written, graphic or electronic form.

Each of Immunitrack and the Customer will keep strictly confidential and will not disclose or use any Confidential Information except (a) as expressly authorized by these Terms and Conditions and the offer or purchase order, or (b) to its employees, consultants, and other representatives (“Representatives”) who require access to such information to accomplish the purposes of the offer or purchase order as long as such persons are under obligations regarding the confidentiality of the Confidential Information that are consistent with, and no less protective than, the terms of these Terms and Conditions. Each party will use at least the same standard of care as it uses to protect its own confidential information to ensure that its Representatives do not disclose or make any unauthorized use of the Confidential Information. A party must promptly notify the other party upon discovery of any unauthorized use or disclosure of the Confidential Information.

Confidential Information shall not include information that

1. is in the knowledge, possession or control of the Receiving Party prior to its disclosure by the Disclosing Party;
2. is public knowledge at the time of disclosure by the Disclosing Party or becomes public knowledge through no fault of the Receiving Party;
3. is developed independently by the Receiving Party as a result of the operations or activities of the Receiving Party, but only to the extent such information does not include or incorporate other Confidential Information; or
4. is obtained from a source other than the Disclosing Party without breach of any legal obligation or the terms of this Agreement.

Notwithstanding the foregoing, a party may disclose Confidential Information, without violating its obligations under these Terms and Conditions, to the extent such disclosure is required by applicable law or by a valid order of a court or other governmental body having jurisdiction, provided that such party gives reasonable prior written notice to the other party of such required disclosure and upon request assists the other party to obtain a protective order preventing or limiting the disclosure, requiring that the Confidential Information so disclosed be used only for the purposes for which the law or order requires, and/or to obtain other confidential treatment of the Confidential Information so disclosed.

INDEMNIFICATION /LIABILITY

Customer shall indemnify and hold harmless Immunitrack and its directors and employees from and against any liability, expenses or costs arising out of any claim, complaint, suit, proceedings or cause of action pertaining to an infringement of a third party’s intellectual property rights against any of them resulting from (i) Immunitrack’s use of the Customer Information and Customer materials as long as such use is in accordance with the offer or purchase order or (ii) the use by the Customer of any Deliverables. The Customer shall pay all settlements entered into, and all final judgments and costs (including reasonable attorney’s fees) awarded against the Customer (and Immunitrack, as the case may be) in connection therewith.

LIMITATION OF LIABILITY

Immunitrack shall use reasonable efforts in performing the Deliverables but does not make any warranties, express or implied, by operation of law or otherwise, with respect to the Deliverables. Without limiting the foregoing, Immunitrack specifically disclaims all implied warranties of title, non-infringement, merchantability and fitness for a particular purpose.

IN NO EVENT WILL IMMUNITRACK BE LIABLE TO THE CUSTOMER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTIAL, OR PUNITIVE DAMAGES INCURRED BY THE CUSTOMER ARISING UNDER OR AS A RESULT OF THE OFFER OR PURCHASE ORDER (OR THE TERMINATION HEREOF) INCLUDING, BUT NOT LIMITED TO, THE LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES OR ON ACCOUNT OF EXPENSES, INVESTMENTS, OR COMMITMENTS IN CONNECTION WITH THE BUSINESS OR GOODWILL OR OTHERWISE.

Immunitrack’s liability arising out of the terms of, or related to, the offer or purchase order, the interpretation hereof, and Deliverables performed and supplied hereunder, shall be limited to and capped at the total amount actually paid by the Customer to Immunitrack under the respective offer or purchase order. Immunitrack’s aggregate liability towards the Customer, for breach, tort or in any other form, shall, furthermore, never exceed an amount of 50,000 EUR or, if lower, the amount for which Immunitrack is insured, save for wilful misconduct by Immunitrack.

In any event, a claim will be unenforceable and lapse unless Immunitrack receives a written notice thereof no later than 6 (six) months after the discovery of an event or circumstance that gives or may give rise to that claim.

PRODUCT LIABILITY

Immunitrack shall be liable for personal injury only if it is proved that such injury was caused by negligence on the part of Immunitrack or others for whom Immunitrack is responsible. However, this liability shall only be assumed by Immunitrack, if the Deliverables are used within the intended use. Immunitrack shall not be liable for damage to property, nor shall Immunitrack be liable for damage to products manufactured by the Customer or to other products of which the Deliverables form part. Immunitrack shall be under no liability in respect of any warranty, condition, guarantee, or representation if the total price for the Deliverables has not been paid.

Immunitrack shall in no circumstances be liable for loss of production, loss of profit, or any other consequential damage, non-documented loss or indirect loss.
To the extent that Immunitrack might incur product liability towards any third party, the Customer shall indemnify Immunitrack as far as Immunitrack’s liability has been limited by the preceding paragraphs.

The above limitations in Immunitrack’s liability shall not apply where Immunitrack has been guilty of gross misconduct. However, Immunitrack shall in no circumstances be liable for loss of profit, loss of business, consequential damage, indirect loss or any other non-documented loss. If a claim for damages as described in this clause is lodged by a third party against one of the parties, the latter shall forthwith inform the other party thereof in writing.

CASES OF RELIEF (FORCE MAJEURE)

The following circumstances shall be considered as cases of relief if they impede the performance or make performance unreasonably onerous: industrial disputes and any other circumstance beyond the control of the parties such as fire, war, general mobilization or unforeseen military mobilizations to a similar extent, requisition, seizure, currency restrictions, insurrection and civil commotion, shortage of transport, general shortage of materials, restrictions in the use of power, and defects or delays in deliveries by subcontractors caused by any such circumstance referred to in this clause, which had occurred prior to the receipt of the order confirmation, shall constitute cases of relief only if their effect on the performance could not be foreseen at the time of the formation.

The party wishing to claim relief shall notify the other party in writing without delay on the intervention and on the cessation of such circumstance.

THE CUSTOMER’S USE OF THE DELIVERABLES

The Deliverables may only be used in accordance with the claims and intended use stated in the specification sheet attached to the Deliverables. Consequently the Customer may not resell, rebottle, relabel or introduce any changes or modifications to the Deliverables unless agreed with Immunitrack. Failure to comply with this provision shall liberate Immunitrack from any and all product liability and other liability which thereafter shall rely on the Customer.

DISPUTES

Disputes arising between the parties, including disputes on the interpretation or validity of these Terms and Conditions or disputes arising out of or in connection with Immunitrack’s offer or purchase order, or related to any Deliverables from Immunitrack to the Customer, shall be finally settled in accordance with Danish law. The City Court of Copenhagen shall be the sole accepted venue.