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TERMS AND CONDITIONS OF SALE

FLUIGENT

Okabé Bureau
67 Avenue de Fontainebleau
94270 LE KREMLIN BICETRE
FRANCE

Phone: +33 (0)1 77 01 82 68
Fax: +33 (0)1 77 01 82 70

Email : contact@fluigent.com

1/ Scope of the terms and conditions of sale

These terms and conditions of sale (T&Cs) set forth the rights and obligations of Fluigent and Customer in connexion withthe purchase of Products from Fluigent for Customer’s internal business use.

All purchases of Products from Fluigent by Customer are subject to and expressly conditioned (i) upon these T&Cs that were communicated to Customer prior to the placement of its order, and (ii) upon Customer’s unconditional acceptance thereto. Acceptance by Customer may be evidenced by (i) the written or verbal consent by Customer or of any representative of Customer, (ii) Customer’s acceptance of delivery of the Products or payment of purchase price for the first instalment of the Products (if applicable), or any such acceptance by any representative of Customer, or (iii) other conduct by Customer or any representative of Customer consistent with acceptance of the T&Cs.

These T&Cs and the order confirmations comprise the entire agreement between the Parties andsupersede all prior or contemporaneous agreements between them. These T&Cs may only be revised, modified or otherwise amended or changed by a writing amendment signed by a duly authorized representative of Fluigent. Customer is hereby notified of Fluigent’s express rejection of Customer’s general conditions of purchase and payment, even if attached to its purchase order, and ofany terms inconsistent with these T&Cs proposed by Customer in its purchase order or its acceptance of Fluigent’s quotation. Neither Fluigent’s subsequent lack of objection to terms deviated from these T&Cs, nor the delivery of the Products, shall constitute an agreement by Fluigent to such other terms.

 

2/ Definitions

As used in these T&Cs, the following terms, whether used in the singular or plural, shall have the following meanings:

“Affiliate”:Any entity, present or future, controlled by or controlling Fluigent, directly or indirectly, where “control” means the ownership of 50% or more of the share capital or the right to exercise 50% or more of the voting rights.

“Confidential Information”: Any information, data or documents, regardless of their subject matter (technical, scientific, financial, etc.) or nature (know-how, methods, processes, etc.), medium (written, hard-copy or digital documents, etc.) or transmission method (written or oral) (i) disclosed by Fluigent to Customer in relation to a Product or Software, or (ii) to which Customer has access within the framework of the purchase of the Products. Confidential Information includes, without limitation, these T&Cs, the prices, price list, the technical information such as but not limited to the Documentation. Confidential Information does not include information (i) otherwise lawfully available from a third party, without any limitations on its use, distribution or disclosure; (ii) in the public domain and obtained by Customer through no wilful action or gross negligence by Customer or any third party; or (iii) lawfully known to Customer prior to its disclosure, as evidenced by Customer.

“Customer”:Any individual, organization or legal entity that purchases any Product directly from Fluigent.

“Documentation”: Any documentation that is delivered by Fluigent to Customer and describing the specifications and instructions for use of the Product and the Software.

“Fluigent”: Fluigent SAS Fluigent incorporated and existing under French Law, with its registered office located at 57-77 Avenue de Fontainebleau, 94270 Le Kremlin-Bicêtre, France and registered with RCS in Créteil under number 487 636 409 or any of its Affiliates from which the Products are purchased.

IP Rights” shall mean any intellectual property rights pertaining to the Products and Software such as inventions, patents, know-how, copyright, trade secrets, trademarks, etc., whether or not such rights are subject to registration or filings with competent authorities, including all applications (or rights to apply for), renewals or extensions of such rights and all similar or equivalent rights or forms of protection which exist or will exist, now or in the future, in any part of the world.

Product”: The Fluigent’s equipments and systems for microfluidic control, and any other product Software or hardware sold or offered by Fluigent to Customer.

“Software”: The computer software programs that is embedded in the Products or delivered independently, licensed to the Customer as set forth in these T&Cs.

 

3/ Products’ changes

Fluigent may, at any time, at its sole discretion, substitute, modify or improve a Product or Software. In such event, Fluigent represents that said changes shall not negatively affect form, fit or function of the Product or Software, as applicable, and their performance characteristics.

Fluigent also reserves the right to discontinue manufacturing and sale of Products at any time.

 

4/ Orders

Orders by Customer shall be placed either by email to orders@fluigent.com or to contact@fluigent.com) by providing the necessary indications.

All purchase orders are subject to acceptance by Fluigent and no purchase order shall be a binding commitment of Fluigent unless and until such purchase order is so accepted, as evidenced by a confirmation of order issued by Fluigent.

No purchase order shall be cancelled or modified by Customer after Fluigent’s acceptance of such purchase order without Fluigent’s prior written consent. If cancellation or modification is allowed by Fluigent, Customer shall pay to Fluigent all expenses incurred and damage sustained by Fluigent on account of the cancellation or modification, and accept the potential effect, if any, of the changes on the price and time of delivery of the Products as it may be informed by Fluigent.

 

5/ Delivery – Shipping

The Products are sold and delivered by Fluigent to Customer EX-WORKS (as defined in the “Incoterms 2010” edition published by the International Chamber of Commerce) from Fluigent’s premises designated in the order confirmation. Fluigent may propose otherwise in its quotations or agree to provide otherwise in the order confirmation upon Customer’s request.

Delivery of the Product to Customer shall be deemed to have occurred, and risk of loss or damageshall pass to Customer,upon delivery to the carrieror in accordance with the Incoterm specifiedin the order confirmation as the case may be.

Delivery times will be indicated in the quotation or order confirmation depending on the Products. Delivery times are indicative. Fluigent agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Customer provides all necessary order and delivery information sufficiently prior to the agreed delivery date. Fluigent shall not be liable for, nor shall Fluigent be in breach of its obligations to Customer, because of any delivery made within a reasonable time before or after the stated delivery date or if it is prevented to do so by a force majeure event, as defined in Section 14.3.

Fluigent reserves the right to make delivery in instalments, all such instalments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries.Delay in delivery of any instalment shall not relieve Customer of Customer’s obligations to accept remaining deliveries.

The quantity of any instalment of the Products, as recorded by Fluigent on the dispatch from Fluigent’s place of business, is conclusive evidence of the quantity received by Customer upon delivery, unless Customer provides conclusive evidence to the contrary. Fluigent will not be liable for any non-delivery of the Products to the delivery location, unless Customer gives written notice to Fluigent of the non-delivery within five (5) days following the date that Customer would, in the ordinary course of business, have received the Products. Fluigent’s liability for any non-delivery of the Products will be limited to replacing the Products within a reasonable time or adjusting the invoice for the Products to reflect the actual quantity delivered.

In the event of shortages Fluigent may allocate its available production and Products, in its sole discretion, among its customers and as a result may sell and deliver to Customer fewer Products than specified in the purchase order, as the case may be.

If Customer fails to take delivery, then Fluigent may deliver the Products in consignment at Customer’s costs and expenses.

 

6/ Inspection – Return of Products

Immediately upon Customer’s receipt of any Products shipped hereunder, Customer shall inspect the same and shall notify Fluigent in writing of any claims for shortages, defects or damages and shall hold the goods for Fluigent’s written instructions concerning disposition. If Customer shall fail to so notify Fluigent within five (5) days after the Products have been received by Customer, such Products shall conclusively be deemed to conform to the T&Cs hereof and their specifications and to have been irrevocably accepted by Customer.

Should said shortages, defects or damages notified by Customer be verified, Customer shall have the right to return such Products as shall be declared defective at Fluigent’s expense and be entitled to (i) replacement Products or (ii) when replacement will not be possible, refund of any part of the price paid for the Products found to be defective within fifteen (15) business days at no additional cost to Customer, it being specified that no indemnity or compensation whatsoever shall be due to Customer on this ground.

 

7/ Prices

Prices for Products shall be those specified in Fluigent’s then current Price List available on Customer’s request.

Except as may be required by applicable law, all stated prices are exclusive of any freight, handling and shipping insurance charges and any taxes, fees, duties, and levies, however designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the prices paid upon these T&Cs. Any taxes related to the Products purchased pursuant to these T&Cs are then the responsibility of Customer (excluding taxes based on Fluigent’s net income), unless Customer presents an exemption certificate acceptable to Fluigent and the applicable taxing authorities. If any exemption certificate presented by Customer is held to be invalid, then Customer will pay Fluigent the amount of the taxes and any penalties and interest related thereto.

Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice.

 

8/ Payment

All payments shall be in Euros (or any other currency only if the price in the quotation are indicated with this different currency).

Unless otherwise set forth in the order confirmation or agreed in writing by the Parties, payment of the price of the Product shall be due to, and received by Fluigent, prior to the shipment of the Product. Payments made by third parties in the name and/or on behalf of Customer may be accepted by Fluigent at Fluigent’s sole discretion.

In case of credit terms granted to Customer, (i) any payment received from Customer may be accepted and applied by Fluigent against any amount owed by Customer to Fluigent without prejudice to, or discharge of, any other indebtedness of Customer to Fluigent, regardless of any condition, statement, legend or notation appearing on, referring to or accompanying such payment, (ii) any sum not paid by Customer when due shall bear interest from the due date to the date of payment, such interest to run day to day and after as well as before any judgment, at a rate equal to the interest rate applied by the European Central Bank for its most recent refinancing operations plus 10 points andCustomer shall pay an indemnity for debt collection expenses (iii) in addition to all other remedies available to Fluigent (which Fluigent does not waive by the exercise of any rights hereunder), Fluigent may suspend the delivery of any Products if Customer fails to pay any amounts when due and the failure continues for five (5) days following Customer’s receipt of notice thereof and such action shall not be construed as a breach or cancellation of these T&Cs by Fluigent (iv) Fluigent shall retain title to the Product sold to Customer until payment in full for the price of the Product has been received by Fluigent, including without limitation the principal and any incidental amounts thereof and, until Customer makes payment in full to Fluigent as set forth above, Customer shall (a) expressly identify and designate any Product purchased from Fluigent under the T&Cs as subject to this reservation of title provision and shall not integrate such Product into any other product and (b) if any Product for which this reservation of title provision applies, is resold to, or used by, any third party, Customer shall inform Fluigent immediately and, subject to applicable law, Fluigent hereby reserves the right to take any legal action to replevin the Product, commencing on the day the price of the Product is due and payable in full, through the date payment thereof is received by Fluigent.

In case of credit terms granted to Customer, all orders shall be accepted under the provision that the Customer is in the position to pay the complete amount of the purchase price. If this prerequisite is no longer fulfilled, which shall be assumed if unfavourable information about the Customer‘s economic situation exists, as in case of formal declaration of bankruptcy of the Customer or any other situation of insolvency (whether legally declared or not) that may suppose a notorious change in its financial position affecting its credit worthiness or if payments are not made within the agreed payment period, then Fluigent will be entitled to claim for immediate payment, without having to be subject to the dates agreed, of all goods delivered and not yet paid by Customer.

Customer may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with Fluigent, regardless of whether relating to Fluigent’s breach, bankruptcy, or otherwise.

 

9/ IP Right – License – Technical services

a/ IP Rights ownership

Fluigent reserve all right, title and interest in all IP Rights pertaining to in all Products, Software and Documentation provided or made available to Customer. Customer shall not contest, either directly or indirectly by assisting a third party, Fluigent’s sole and exclusive rights, including ownership rights, in and to the IP rights.  Furthermore, Customer shall not challenge Fluigent’s title to the IP Rights or otherwise do or cause to be done anything which contradicts with such sole and exclusive ownership of Fluigent.

Nothing in these T&Cs shall be deemed to confer upon Customer any right, title or interest whatsoever in any of the IP Rights except for those rights specifically granted in Section 9.2.For the avoidance of doubt, to the extent that Software and/or Documentation is embedded in a Product, the sale of such Product shall not constitute the transfer of ownership rights or title in such Software and/or Documentation, and all references to “sale” or “sold” of any Software or Documentation shall be deemed to mean a license in the terms set forth in Section 9.2.

b/ License

Subject to these T&Cs, including without limitation the specific limitations contained herein, and in consideration of Customer’s payment of the price of the Product, Fluigent grants Customer a limited, fully-paid, non-transferable, non-exclusive license,right to use, without any right to sublicense,the Software in machine-readable form, only in combination with or as part of the Products for which the Software has been provided, solely for so long as the Product is owned by Customer and its successors and permitted assigns.

With respect to Products, Software, Documentation, and portions thereof, Customer is not authorized to and agrees that it will not: (i) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code, ideas, technology or algorithms, except to the extent expressly authorized by statutory law; (ii) modify, alter, improve, develop, update upgrade, downgrade, translate, create derivative works; (iii) remove or alter any proprietary markings or notices; or (iv) merge, link or incorporate Software into any other software (iv) license, sublicense, distribute, pledge, lease, rent, assign, sell or commercially share the IP Rights herein (v) use the IP Rights in connection with any hazardous activity or any other activity which might result in serious property damage, death or serious bodily injury. Should Customer create any modifications or derivative works of Products, Software, Documentation or a portion thereof, Customer irrevocably assigns and agrees to assign all right, title and interest in any such modifications or derivative works to Fluigent.

No rights or licenses with respect to any Software source code are granted to Customer.

Customer’s rights under these T&Cs are conditional upon Customer not performing any actions that may require any Software, Products and/or any derivative work thereof, to be licensed under open source software license terms that may, for example, require disclosing source code, granting a license under IP Rights, such as granting a permission to develop derivative works, or granting other rights or assuming responsibilities commonly associated with open source software.

Customer shall (i) establish and maintain appropriate security measures to safeguard the IP Rights against any unauthorized access or use, (ii) mark, when applicable, the Product with such notices, including copyright notices, specified from time-to-time by Fluigent (iii) maintain effective control over the IP Rights in accordance with these T&Cs, (iv) keep a full and accurate written record of any authorized copies or disclosures of the IP Rights, as well as their location and (v) furnish Fluigent with copies of such written record without undue delay whenever so requested by Fluigent (vi) promptly give notice of any conduct which comes to its attention and which may infringe or constitute a conflicting or illegal use of the IP Rights.

If Customer is in default of any of the terms herein, Customer’s license will automatically terminate. Customer shall indemnify Fluigent against and hold Fluigent harmless from any damage or costs arising from or in connection with any violation or breach of the provisions of this Section 9.2 and Customer shall reimburse all costs and expenses incurred by Fluigent in defending any claim, demand, suit or proceeding arising from or in connection with such violation or breach, as set forth in Section 11.

For any third-party software licensed by Fluigent from other licensors that have been identified to Customer in writing in advance, such applicable licensor is a thirty-party beneficiary to the T&Cs with the right to enforce the obligations set forth herein and, for the purposes hereof, any such software shall be deemed Software.

c/ Technical services

Fluigentshall provide technical assistance to Customer and conduct corrective maintenance for the Product to correct, within a reasonable time, incidents detected by the Supplier or on Customer’s reasonable request.

The Customer Support Service can be contacted by phone [•], by email to support@fluigent.comor via the contact form on Fluigent’s website.

Upon receipt of Support request from the Customer, Fluigent undertakes to use all reasonable endeavours during the Standard Service Hours to make such support, corrections, repairs or adjustments to or replace such parts of the Products as may be necessary to restore the Products to their proper operating condition. Whether this can be achieved remotely, at Fluigent facilities or by an on-site visit by a Fluigent engineer will be determined by the Service Offering provided in the quotation or with the Product, as the case may, or by Fluigent at its own discretion in any other cases.

Fluigent also make available to the Customer, updates and new versions of the Software and Firmware, whether this relates to updates or new versions intended to implement corrective patches, integrate new functions or technical improvements in the Product.

Customer shall agree to come back, on Fluigent’s recommendation, to a previous version to avoid regression in the performance of the Products or in case of non-compatibility of updates and new versions with the parameters for the Software or the Firmware.

Progressive maintenance services may also be performed on the request of the Customer, according to the conditions set forth in the specific quotation which will be issued by Fluigent and accepted by Customer.

 

10/ Warranty

a/ Quality and conformity

Fluigent warrants to Customer that for a period of one (1) year following delivery of the Product to Customer, the Products, and the Software embedded, shall be free from defects in material or workmanship and shall substantially conform to Fluigent’s specifications for such Products and Software.

If a defect is reported to Fluigent during the one-year period following delivery of the Product to Fluigent, Fluigent’s sole and exclusive obligation, and Customer’s sole and exclusive right, with respect to claims under this warranty shall be limited, at Fluigent’s option, either (i) repair or replace the Product or Software or (ii) provide Customer with a refund of the portion of the applicable price paid by Customer to Fluigent for such Product.

Customer may ship Products returned under warranty claims to Fluigent’s designated facility only so long as the returns are in conformance with Fluigent’s then-current return material authorization policy and are accompanied by a duly completed return material authorization form issued by Fluigent. Where warranty adjustment is made, Fluigent will pay for freight expenses. Customer shall pay for returned Products that are not found to be defective or non-conforming together with the freight, testing and handling costs associated therewith. The non-conforming or defective Products shall become Fluigent’s property as soon as they have been replaced or credited for.

Notwithstanding the above, Fluigent shall have no obligations for breach of warranty if the alleged defect or non-conformance is found to have occurred as a result of: abnormal or unusual physical or electrical stress or environmental conditions, misuse, neglect, improper installation, accident, improper repair, alteration, modification, improper storage, improper transportation or improper handling, operation or use of the Products, after the risk of loss in the Products has passed to Customer.

The warranty term for a spare part used in repairing Productsis ninety (90) days from its installation in the Product or the remainder of the warranty term for the Product into which it is installed, whichever is longer. For the avoidance of doubt, the warranty term of a Product is not extended after its repair or replacement.

In case of replacement, Customer will pay Fluigent for a replacement part or Product when the replaced part or Product is not returned by Customer to Fluigent within ten (10) days after the date the replacement part or Product was delivered to Customer by Fluigent. Prices of the part replaced will be according to the current standard price in the Territory accessible on Fluigent’s website or communicated by Fluigent on Customer’s request.

Fluigent may provide an extension of warranty upon Customer’s request at additional cost. As the case may be, this extension of warranty will be mentioned in the order confirmation and in the Customer’s invoice. Each extension of warranty sold to Customer is related to one Serial Number (SN) of the concerned product. No extension of warranty will be accepted after the purchase of a Product.

b/ Non infringement

Fluigent, at its expense, shall: (i) defend against a claim in a legal proceeding brought by a third party against Customer that any Product or Software as furnished by Fluigent hereunder directly infringes the claimant’s patent or copyright; and (ii) hold Customer harmless against damages and costs awarded by final judgment in such proceeding (or agreed upon in a settlement to which Fluigent consents) to the extent directly and solely attributable to infringement by the Product or Software.

Fluigent shall have no obligation or liability to Customer under Section 10.2: (1) if Fluigent is not: (i) promptly notified in writing of the claim, (ii) given the sole right to control the defence and settlement of such claim, including the selection of counsel, and (iii) given full reasonable assistance and cooperation by Customer in such defence and settlement; (2) if the claim is made more than one (1) years after the date of delivery of the Product; (3) to the extent that any such claim arises from: (i) modification of the Product, (ii) design, specifications or instructions furnished by Customer, or (iii) the combination or use of the Product with any other product, software, service or technology; (4) for unauthorized use or distribution of the Product or use beyond the specifications of the Product; (5) to the extent that any such claim arises from Customer’s use, sale, offer for sale or importation of the Product after Fluigent’s notice to Customer that Customer should cease any such activity because the Product is, or is reasonably likely to become, the subject of a claim of infringement; (6) for any costs or expenses incurred by Customer without Fluigent’s prior written consent; (7) for infringement of any third party’s intellectual property rights with respect to which Fluigent has informed Customer or has published a statement that a separate license has to be obtained or that no license is granted or implied.

If any claim of infringement is brought against Fluigent as a result of Customer’s actions in connection with items (3) to (7) of this Section 10.2, Customer shall indemnify Fluigent against and hold Fluigent harmless from any damages or costs arising from or connected with such claim of infringement and shall reimburse all costs incurred by Fluigent in defending any claim, demand, suit or proceeding for such infringement, provided Fluigent gives Customer prompt notice in writing of any such suit or proceeding for infringement.

If any Product is, or in Fluigent’s opinion is likely to become, the subject of a claim of infringement, Fluigent shall have the right, without obligation and at its sole option, to: (i) procure for Customer the right to continue to use or sell such Product, (ii) replace or modify such Product in such a way as to make the modified Product non-infringing, (iii) ask Customer to return all such Products in Customer’s possession and upon such return credit Customer the sum paid to Fluigent by Customer for such Products, less appropriate depreciation.

c/ Warranty limitations

No contractor, consultant, reseller, agent or employee of fluigent is authorized to make any modifications, extensions or additions to the limited warranties hereof.  except as provided in sections 10.1 and 10.2 hereof, Fluigent’s product and software are provided “as is”, and all other express or implied conditions, representations and warranties, including without limitation any implied warranty of merchantability, warranty of fitness for a particular purpose (even if informed of such purpose), warranty for hidden defect, or warranty arising from a course of dealing, usage or trade practice, are hereby excluded to the fullest extent allowed by applicable law.

No warranty is made that Fluigent’s product or software will meet customer’s requirements, or that the operation of Fluigent’s product or software will be uninterrupted or error-free.

certain third-party software may be provided to customer along with certain Fluigent’s software.  This third party software is provided “as is” and all limitations of warranties set forth herein apply to such third party software.

 

11/ Liability

Customer shall defend, indemnify, and hold harmless Fluigent and its subsidiaries, Affiliates, successors, and assigns and their respective directors, officers, shareholders, and employees from and against any loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, fees (including import and export customs fees), or expense (including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) (“Claims”) arising out of or occurring in connection with the negligence or willful misconduct of Customer or its employees or agents, including but not limited to: (i) any misuse or modification of the Products by Customer or its employees or agents, (ii) any act (or failure to act) by Customer or its employees or agents in contravention of these T&Cs or any safety procedures or instructions that Fluigent provides to Customer or its employees or agents, or (iii) the failure to store, install, operate, or maintain the Products in accordance with Fluigent’s instructions.

Fluigent shall defend, indemnify, and hold harmless Customer and its subsidiaries, affiliates, successors, and assigns and their respective directors, officers, shareholders, and employees (collectively, “Customer Indemnitees”)  from and against any Claims brought against them by any third party and arising out of or relating to (1) the infringement of any third-party’s intellectual property rights, subject to the conditions and limitations of Section 10.2 hereof; (2) damage to property or bodily injury caused by the use of the Product in accordance with Fluigent’s Documentation, if, and only if, such Product have not been altered or modified by Customer or any third party; or (3) any negligence or willful misconduct of Fluigent; excluding in any of the foregoing cases, any Claim attributable to any Customer Indemnitee’s negligence, willful misconduct or breach of its obligations hereunder.

In no event shall fluigent or its licensors be liable for indirect, special, incidental or consequential damages (including lost profits, savings or data) whether based on contract, tort, product liability, or any other legal theory, even if fluigent has been advised of the possibility of such damages (except with respect to third party claims for which indemnification to customer is provided under section 10.2 hereof).  subject to the foregoing exception, in no event shall company’s or its licensors’ liability under t&cs exceed the amount paid by customer for the products and software giving rise to the claim.  Notwithstanding anything to the contrary in the terms and conditions, in the case where no amount was paid, company and its licensors shall have no liability for any damages whatsoever.  The existence of more than one customer claim, or customer claims involving more than one product, shall not enlarge or extend the above specified limits.

In addition, all claims from customer must be brought within one (1) year of delivery, regardless of their nature. any claim brought after that one (1) year term will be deemed invalid, customer expressly waiving its right to introduce such a claim once such one (1) year term is over.

The limitations and exclusions set forth above in this Section 11 shall only apply to the extent permitted by applicable mandatory law.

 

12/ Confidentiality

Customer shall, at all time, maintain as confidential all Confidential Information and shall exercise the same degree of care to protect them from disclosure that it uses to protect its own confidential information.

Customer shall not, without Fluigent’s prior written consent, disclose or make any Confidential Information available in any form to any person, except its employees, consultants, or permitted operators, whose access is necessary to enable Customer to exercise its rights under the T&Cs and who have been advised of the confidential nature of such Confidential Information.

Customer shall only use the Confidential Information as necessary to perform its obligations hereunder and shall return or destroy it at the request of Fluigent.

Customer shall be permitted to make such disclosures to the public or to any governmental authority to the extent required by a court order or if otherwise required by law, provided that Customer gives Fluigent prior written notice of the disclosure and uses reasonable legal efforts to resist disclosing the Confidential Information.

Any violation of these confidentiality obligations shall entitle Fluigent to claim for the payment of any damage, loss or expense, including legal fees and procedural costs, resulting from the breach of the obligations provided for in this Section 12.

Customer acknowledges that a breach of the obligations set forth in this Section 12 may cause irreparable harm to Fluigent, for which damages may be difficult to ascertain, and therefore Customer hereby agrees that Fluigent shall be entitled to seek equitable relief by means of mandatory injunctions.  This right of equitable relief is in addition to any other rights (such as right to damages and interest) that may be available to Fluigent.

The confidentiality obligations and restrictions on use arising from this Section 12 shall remain in force for a period of five (5) years after the termination of the relationship between the Parties for any reason whatsoever.

 

13/ Compliance with laws

Each party hereto represents that it is duly authorized to enter into these T&Cs and represents that with respect to its performance hereunder, it will comply with all applicable national, federal, state and local laws.

If the delivery of Products under these T&Cs is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, Fluigent may suspend its obligations and Customer’s rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and Fluigent may even cancel the order related to such Products, without incurring any liability towards Customer.

Furthermore, if an end-user statement is required, Fluigent shall inform Customer immediately thereof and Customer shall provide Fluigent with such document upon Fluigent’s first written request; if an import license is required, Customer shall inform Fluigent immediately thereof and Customer shall provide Fluigent with such document as soon as it is available.

By accepting Fluigent’s offer and/or accepting any Products, Customer agrees that it will not deal with the Products and/or Software and/or Documentation related thereto in violation of any applicable export or import control laws and regulations.

 

14/ Miscellaneous

a/ Assignment

No rights or obligations of Customer hereunder or arising out of the T&Cs may be assigned without the prior written consent of Fluigent.  Any such assignment without Fluigent’s prior written consent shall be null and void.

Fluigent’s duties, rights and obligations hereunder may be assigned, and Fluigent’s duties hereunder may be delegated, to any one or more of its Affiliates in whole or in part.  Fluigent reserves the right to assign, and Customer acknowledges and consents to any assignment of, the accounts receivable resulting from the T&Cs to one or more third parties as part of a factoring arrangement or otherwise.

The T&Cs shall be binding upon, inure to the benefit of, and be enforceable by, the permitted successors and assigns.

b/ Notices

All payments by check, correspondence and notices hereunder shall be in writing and given by registered or certified mail, postage and registration fees prepaid, return receipt requested, or overnight mail by an internationally recognized courier service, and shall be deemed given when so mailed or sent to Customer at the address set forth in the order confirmation or such other address as either party may notify the other Party pursuant to this Section 14.2.

In case of notification by registered letter with acknowledgment of receipt, it will be deemed to have been validly notified on the day of the first presentation of the registered letter. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, consent or communication sent.

c/ Force Majeure event

Fluigent shall not be deemed to be in default of its contractual obligations whilst performance thereof is prevented by a Force Majeure Event. Events of Force Majeure are events beyond the control of the Party and which were not reasonably foreseeable and avoidable. It is expressly agreed between the Parties that Force Majeure Event shall include(without being limited to)delays and non-deliveries or non-acceptance caused by strikes, work stoppages, riots, wars, fires, acts of God, accidents, governmental orders and regulations, curtailment of or failure in obtaining sufficient electric power, lack of transportation or distributive facilities, any governmental restrictions to travel, transport and work in response to the outbreak of any coronavirus pandemic or other pandemic, and other contingencies beyond Fluigent’s reasonable control.

d/ Severability

If any provision of the T&Cs shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. The paragraph headings herein are for convenience only; they form no part of the T&Cs and shall not affect their interpretation.

e/ Waiver

Fluigent’s failure to enforce any term or condition of the T&Cs or to exercise any right arising hereunder shall not constitute a waiver of Fluigent’s right to enforce such terms or conditions or exercise such right thereafter. All rights and remedies under this order are cumulative and are in addition to any other rights and remedies Fluigent may have at law or in equity. Any waiver of default by Customer hereunder shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter.

f/ Governing law and jurisdiction

The T&Cs shall be governed by, and construed in accordance with the law of the country where Fluigent has its head office, excluding (a) any conflicts of law rules or principles that might refer the governance or construction of the T&Cs to the laws of any jurisdiction other than the French Republic.

In case of a dispute arising from the existence, the validity, the interpretation, the performance or the termination for whatever cause of these T&Cs or based on any right arising out of these T&Cs or on the commercial relationship between the Parties, the Parties shall make every effort to reach a settlement.

If a settlement cannot be reached within three (3) months of the date of the initial notification relating to the dispute, the dispute shall be referred to the competent courts of the country where Fluigent has its head office. Such relevant courts shall also have jurisdiction on interim measures including for purposes of protective measures as well as summary procedures, ex parte procedures, impleader or multiplicity of defendants.

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