GENERAL TERMS AND CONDITIONS FOR SALES
1. The Parties and the Product
1.1 In these general terms and conditions (the “General Terms and Conditions”), the term “the Seller” shall be taken to signify Breas Medical AB, Breas Medical GmbH, Breas Medical SRL, Breas Medical Ltd., Breas Medical, Inc., or any of its affiliates. The term “the Purchaser” shall be taken to signify any individual, or any private, public, state, government owned entity with whom a framework agreement on sale of the Seller’s Product has been reached, to whom a tender has been submitted, or that is listed on any purchase order for the purchase of Products from the Seller (including, but not limited, any orders placed in the Seller’s e-commerce platforms). The Seller and the Purchaser are separately referred to as a “Party” and collectively referred to as the “Parties”.
1.2 As used herein, “Product” shall mean any medical equipment and other products manufactured or sold (including accessories, consumables, and spare parts) by the Seller. The term Product shall include all applicable manuals and other written instructions about any Product given by the Seller. The term “Product Related Services” shall be taken to signify services rendered or advice given by the Seller or its representatives in relation to the sale of the Product. The term “Term” shall mean the period from the date when the General Terms and Conditions is concluded to the date when the General Terms and Conditions is terminated by any Party in writing.
1.3 The Seller reserves the right to change, without prior notice, the design, construction, and type of materials used in the manufacture of any of its Products. The Seller further reserves the right to discontinue, without prior notice, any of its Products and/or replacement parts therefor. However, the Seller undertakes to abide by any regulations outlining any support periods needed for such discontinued Products.
1.4 The General Terms and Conditions have been drawn up in the English language but may be translated into other languages. In case of discrepancies between the different language versions, the English version shall prevail.
2.1 These General Terms and Conditions shall be applicable to all purchases and deliveries of the Product to the Purchaser and to any and all Product Related Services offered by the Seller within the Territory unless they have been altered explicitly by the Parties in writing. These General Terms and Conditions constitute an integral part of the agreement between the Seller and the Purchaser (collectively, together with any other applicable agreement or purchase order that incorporates these terms by reference, the “Agreement”).
3. Conclusion of Individual Agreements
3.1 The Purchaser shall place a purchase order by written communication (including the format prescribed from time to time by the Seller) (the “Purchase Order”) to the Seller, identifying customer name and customer site of installation (unless ordered to the Purchaser’s warehouse), the Products (including model numbers), parts by number, quantity of Products, purchase price, requested delivery dates and place of delivery, and any special shipping instructions. For the avoidance of doubt, an order placed on the Seller’s e-commerce platform shall be considered as a Purchase Order as set forth in this Clause.
3.2 Each Purchase Order is deemed to be an offer by the Purchaser to purchase the Products pursuant to the General Terms and Conditions and when accepted by the Seller, will give rise to a sale governed by the General Terms and Conditions which will prevail over any additional or contrary terms set forth in the Purchaser’s Purchase Order or any other document the Purchaser may from time to time issue in connection with the purchase of the Products.
3.3 The Seller may accept such Purchase Orders in whole or in part and will be under no obligation to supply any Products to the Purchaser until the Seller has accepted the Purchase Order in any of the following ways: (i) express acceptance of the Purchase Order in writing (the “Order Confirmation”); (ii) raising of shipping documents by the Seller for the Products referred to in the Purchase Order; (iii) delivery of an invoice for the Products referred to in the Purchase Order; or (iv) delivery of the Products referred to in the Purchase Order, (each an “Order Confirmation”).
3.4 The Purchaser will not be entitled to cancel or alter any Purchase Order after the Seller confirmed the Purchase Order, unless the Seller has in writing agreed to the cancellation or alteration and has received from the Purchaser a written undertaking to pay all costs incurred by, all charges (including but not limited to restocking charges) made by the Seller, and a reasonable profit to the Seller. No returns will be accepted without prior written authorization from the Seller.
3.5 The decision to change version or cease manufacture and market any Products is at the sole discretion of the Seller and whenever any Product is excluded from the assortment of the Seller, it is also excluded from the Products. In case the Seller includes a new product in its assortment such product is not automatically included in the list of Product.
3.6 The Product shall in all aspects comply with the specifications given in the official product information that the Seller supplies for the Products unless otherwise has been agreed upon in writing between the Parties.
3.7 If the Purchaser, in connection with the Purchase Order, has dictated conditions which are contrary to those set out in the Seller’s Order Confirmation or the General Terms and Conditions, failure on the part of the Seller to object to such conditions does not imply that they have been approved by the Seller, but the delivery shall be considered to be done according to the Seller’s Order Confirmation and the General Terms and Conditions.
4. Prices and Payment
4.1 The price of the Product or Product Related Services shall be according to the current price list of the Seller at the time of the Seller’s receipt of the applicable Purchase Order unless otherwise has been agreed upon in writing between the Parties. The Seller’s prices for the Products are always exclusive of any freight cost, unless otherwise agreed. The Purchaser shall be responsible or any other local charges that may occur, depending on the Purchaser’s region and local custom duties. Any and all discounts shall be separately agreed upon in writing by the Parties. Any amendment of the basis of calculation shall be agreed upon in writing by the Parties. The Seller shall have the right to change the prices for the Products at any time. Any price adjustments shall be made with at least 30 days’ notice prior to the new prices coming into effect.
4.2 Taxes associated to Products and Product Related Services (e.g., Federal, State, local, value-added, etc.) are not included in the price unless otherwise agreed in writing by the Seller. In addition, the Purchaser acknowledges and is aware that there may be tax consequences from any participation in a rebate incentive program with the Seller and that the Purchaser may be required to pay income tax on the value of any rebates it receives through a rebate incentive program with the Seller, if any. The Seller is not responsible for remitting any taxes on the Purchaser’s behalf, or for providing the Purchaser with tax-related documentation. The Purchaser is solely responsible for ensuring that any taxes arising from its participation in a rebate incentive program, if any, is reported and paid to the appropriate tax authority and hereby indemnify, hold harmless, and defend the Seller from any and all claims against the Seller arising from or relating to the Purchaser’s failure in complying with any law, regulation, or rules relating to taxes.
4.3 Payment shall be made in accordance with the Purchase Order or as agreed between the Parties. Payment shall be made in USD according to the agreed payment and credit terms.
4.4 If the Purchaser is late in making payments, in addition to other remedies available to the Seller, (i) the Purchaser, will pay interest on overdue amounts at two (2) % per month or maximum rate permitted according to mandatory law and (ii) the Seller may withhold delivery of Products. At payment after due date the Seller has the right to recover any costs or expenses (including attorney’s fees) incurred by the Seller to recover amounts due hereunder. The Seller shall furthermore have the right to demand that acceptable securities be provided, amend the terms of payment and any possible credit limit, and cancel the Agreement and all open Purchase Orders, whether or not they have been accepted by Seller, upon delayed payment. In the event of a check returned for any reason and a stopped or reversed payment, the Seller may, at its sole discretion, charge and the Purchaser agrees to pay to the Seller a fee. Should an invoice be referred to a third party for collection or other enforcement action be taken by the Seller, the Purchaser agrees to pay any and all costs of collection incurred by the Seller, including any and all attorney and arbitration fees, lien filing fees, collection costs, and other legal expenses, and the limited warranty, as referenced herein, shall immediately become null and void and will only be reinstated upon payment of the outstanding fees, arrears interest, collection costs, and a reinstatement fee.
5. Reservation of Title
5.1 Any and all delivered Products shall remain the property of the Seller until paid for in full to the extent that such retention of property is permitted by applicable law. If the Purchaser fails to timely pay all amounts due to the Seller, the Seller shall have the right to reclaim the applicable Products for which payment has not been received by Seller in full. Until the title of the Product has been transferred to the Purchaser, the Purchaser shall be obligated to take good care of the Product.
6. The Quality
6.1 The Product shall in all material respects comply with the specifications given in the official product information that the Seller supplies for the Product unless otherwise has been agreed upon in writing between the Parties.
7. Deliveries and Return
7.1 Delivery shall be made Ex Works the Seller’s premises (Företagsvägen 1, SE-435 33 Mölnlycke, Sweden for Breas Medical AB; Unit A2, The Bridge Business Centre, Timothy’s Bridge Road, Stratford-upon-Avon, the United Kingdom for Breas Medical Ltd.; and 16 Esquire Road, North Billerica, Massachusetts, the United States of America for Breas Medical, Inc.), unless otherwise agreed in writing between the Parties, the Trade terms shall be interpreted in accordance with the INCOTERMS in force at the formation of the Agreement.
7.2 In any case where Breas has agreed to wholly or partly be responsible for freight, Breas shall be entitled to add such cost to the Prices and choose the mode of transportation.
7.3 Any time of delivery stated by the Seller is the Seller’s best estimate of a calculated delivery. If the Seller finds that it will not be able to deliver the Products at the agreed time for delivery or if delay on its part seems likely, it shall forthwith notify the Purchaser thereof in writing, stating the reason for the delay and if possible the time when delivery can be expected. The Seller may make partial shipments at the Seller’s sole discretion.
7.4 If delay in delivery is caused by transport delays beyond the Seller’s control, or because of any circumstance encompassed by Clause 16, or by an act or omission on the part of the Purchaser, the delivery time shall be extended by a period, given all of the circumstances in the case that may be deemed reasonable. This applies regardless of whether the reason for the delay occurs before or after the expiry of the agreed delivery time.
7.5 The Seller’s liability in the event of delay for which the Seller is responsible is limited to verified material direct losses (all kind of indirect and consequential losses and damages excluded) and shall not, in any event, exceed 5 % of the invoiced value of the delayed delivery.
7.6 If the delivery of Products 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, the Seller may suspend its obligations and the Purchaser’s rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and the Seller may rescind the transaction without incurring any liability towards the Purchase.
7.7 Return of a Seller’s Product should be made in accordance with the Seller’s Return Merchandise Authorization procedures and is subject to a restocking fees in the amount of fifteen percent (15%) of the invoiced price of the returned Product, except for the return made under Clauses 9.2, 11, and 12.
8. The Purchaser’s Obligation to Take Delivery
8.1 Should the Purchaser fail to take delivery of the Product at the appointed time, it is nevertheless obliged to make each payment as if delivery of the Product in question had been taken. If the Purchaser, regardless of grounds, fails to take delivery of the Product at the appointed time, the Seller shall be entitled, by written notification to the Purchaser, to cancel the Agreement in respect of such outstanding part of the Product that, due to the Purchaser’s failure has not been received, and receive compensation from the Purchaser for any and all damage incurred due to the Purchaser’s failure to fulfil his obligations.
9. Inspection and Nonconformity
9.1 The Purchaser shall as soon as possible after receipt of the Product examine or cause to examine the Product for visible defects, ensure or cause to ensure that the number of pallets and boxes correspond with the number given in the delivery notes and that the quantities delivered correspond with the quantities given on the boxes and that the Product overall complies with the Seller’s Order Confirmation and with what is stated in the Agreement.
9.2 Complaint regarding lack of conformity of delivered Products that the Purchaser has noticed or should have noticed upon the required receipt inspection, shall be lodged within 10 days from the date at which the Products were delivered. Such written complaint shall contain a description of how the lack of conformity manifests itself. If there is reason to believe that the lack of conformity may cause damage, such complaint shall be given immediately. Complaint regarding such a fault as could not have been discovered at such an upon receipt inspection shall be made directly after the fault is noticed or should have been noticed by the Purchaser, however, at the latest within the applicable warranty period. Failing to do so causes the Purchaser to lose the rights that belong to it due to lack of conformity of the Products.
10. Purchaser’s Handling of the Product
10.1 The Purchaser undertakes to transport, handle, store and repair the Product with proper care and always in accordance with professional standards and the instructions of the Seller. The Purchaser undertakes not to change the Products, remove or change any trademarks, names or any other markings concerning the Products or alter the Product’s packaging or repack the Products in non-approved non-Seller packaging.
10.2 The Purchaser undertakes to comply with all the instructions and information about the Products given by the Seller when marketing and selling the Products, educating its personnel and instructing and educating its customers about the handling and use of the Products.
10.3 The Purchaser undertakes, when marketing and selling the Product, not to give any information about the Product or make any warranties or representations as to the Product, its nature, or use that is contrary to or goes further or beyond the instructions, information, warranties or representations given by the Seller. The same applies when the Purchaser is educating its customers about the use of the Product. The Purchaser undertakes to indemnify and hold the Seller harmless from any and all damages in the event the Seller suffers damage as a result of breach of these undertakings.
10.4 The Purchaser shall comply with all applicable national and/or international laws, rules and regulations concerning medical devices, including but not limited to the Medical Devices Regulations (Regulation (EU) 2017/745, MDR), the respective guidelines of the European Commission, the United States Federal Food, Drug, and Cosmetic Act (FDCA). Notwithstanding all other provisions in the Medical Devices Directive or FDCA, the Purchaser is obliged to inform the Seller immediately in case of an incident with one of the Products or if it has indications that a Product is not safe.
10.5 According to the requirements of MDR and/or the relevant provisions in FDCA, the Purchaser shall maintain adequate records concerning product traceability as the U.S. Food and Drug Administration (“FDA”) regulations from time to time require and make such records available to the Seller as and when reasonably required. The Purchaser agrees to comply with the rules of these regulations and accepts them as legally binding conditions for all deliveries of Products. The Purchaser’s traceability records shall be complete and accurate and trace the Seller’s Products to final point of use by product code, lot number, serial number, the name and address of its customers, the name, quantity and lot description of each Product sold, rented or leased, the date provided to their customer, the Product model and serial number provide to each patient, the maintenance and repairs that have been performed on each Product, the location of the Product, whether the Product has been permanently removed from service (including model and serial number), any complaints that the Purchaser receives regarding the Products, and the control or other lot identification number used in order to enable the Seller to comply with FDA regulations. In the event that a Product is resold (a “Resold Product”), it is the Purchaser’s responsibilities to maintain a complete and accurate record of such Resold Product.
10.6 The Purchaser may not remove references to the capacity of the Seller as manufacturer or other references or instructions for use or serial numbers or distribute Products without such references and instructions for use.
10.7 Products that are manufactured for sale in a country, region, or territory are approved only for sale in such country, region, or territory and under prescriptions from physician. Accordingly, resales of the Products outside of such country, region, or territory is strictly prohibited. The Purchaser acknowledges and agrees (a) not to sell, resell, offer for sales, export to, or import from any region outside the Purchaser’s country, region or territory, (b) not to sell or resell to reseller(s) without the Seller’s written consent, (c) not to sell, resell, offer for sales, export, or import on any third-party e-commerce platforms, including without limitation, Amazon.com or Walmart.com, (d) not to sell or knowingly with reasonable due diligence resell to end users without physician’s prescription, (e) to comply with the Seller’s MAP policy, and (f) to provide all post-sales services to end users and provide the Seller with the contact information of the Purchaser’s post-sales services. For purposes of the General Terms and Conditions, customers will be deemed to be “within the Territory” only if (i) the customer’s or potential customer’s billing address and the shipping location are located in the Territory and (ii) the Purchaser has no reason to suspect or believe that such customer or potential customer intends to ship or re-sell the Product outside of the Territory.
10.8 In the event that the Purchaser sells or contemplates to sell Products through the e-commerce (except through a third party e-commerce platform, which is strictly prohibited), the Purchaser shall conduct such e-commerce business under the name, to which the Purchaser purchases product from the Seller. If the Purchaser conducts business through a pseudo name, the Purchaser shall inform the Seller of such pseudo name and notify the Seller prior to change to a new pseudo name.
10.9 The Purchaser shall not market or offer for sale the Products or fulfill the Purchaser’s sales of Products on or through any website other than the website(s) expressly approved by the Seller (hereinafter, individually or collectively, the Purchaser’s “Website”). Selling the Products on or through third-party marketplace sites (e.g., eBay, Amazon, Walmart Marketplace), drop-ship accounts (e.g., Rakuten.com, Newegg.com, Overstock.com, Jet.com), classified sites (e.g., Craigslist.org, Facebook Marketplace), or direct messages on social media or Internet forums is strictly prohibited. Consent to market for sale and sell the Products on the Website is conditioned upon the Purchaser’s adherence to the following terms and conditions:
10.9.1 The Purchaser’s Website must be confined to the specific approved domain name. The Purchaser may not use any the Seller’s’s Trademarks, nor any misspellings of any the Seller’s Trademarks, in the construction of the Purchaser’s domain name, including top-level domains and sub-domains, URLs for any part of the Purchaser’s Website, or any part of metadata in the Purchaser’s Website.
10.9.2 The Purchaser’s Website must not give the appearance that it is operated by the Seller.
10.9.3 The Purchaser may not ship any Products to customers outside the Territory. Accordingly, the Purchaser will prominently display at the Website a statement similar to the following: “We ship Breas products only to customers within the [name of the Territory].”
10.9.4 The Purchaser may not sell online anonymously. The Purchaser’s Website must list the Purchaser’s full legal name, mailing address, telephone number, and email address so that the Purchaser’s customers may contact the Purchaser directly for training and service. The Website must clearly indicate the physical location(s) where customers can obtain training and service related to the Products from the Purchaser.
10.9.5 The following copyright attribution must appear on any page of the Purchaser’s Website where the Seller’s graphic material appears: Breas’s logo, text, graphics, and photo images are the property of Breas and are used with permission.
10.9.6 The Purchaser will cooperate in demonstrating and/or providing access to, and copies of, all web pages that comprise the Purchaser’s Website. Because trust is an important part of the Breas brand, it is important that all information about the Products is truthful and accurate. Because of that, the Seller must approve all internet-based advertising and promotional campaigns involving the Products before they go live, as well as any changes to existing campaigns. The Purchaser shall only use the Seller-provided intellectual property and marketing materials that have been authorized in writing by the Seller. This includes, but is not limited to, websites, search terms, images, graphics, photographs, copies, text, manuals, literature, video, specifications, and logos.
10.9.8 In sales of Products from the Website, the Purchaser acknowledges and agrees that the Purchaser is responsible for all fulfillment to the Purchaser’s individual customers, any applicable taxes associated with such individuals’ purchases of Products, and any returns of Products.
10.9.9 All Product images and descriptions on the Website must be kept up to date. The Purchaser must remove outdated packaging or Products the Purchaser does not hold in inventory.
10.10 The Purchaser shall not market, sell, distribute, or offer for sale any Product to a sub-acute facility or an acute facility without express approval by the Seller.
10.11 The Purchaser may not make any changes, alterations, or improvements of the Products, except with the prior written approval of the Seller.
10.12 The Purchaser agrees to indemnify, defend and hold the Seller and its parent, subsidiary, or affiliated companies (“Affiliates”) harmless from and against any expenses incurred by or claims made against the Seller arising out of or relating to any material breach of the terms and conditions of this Agreement and/or any negligent actions or willful conducts of the Purchaser, including but not limited to the marketing, distribution, maintenance, repair or alteration of any Product, or the improper assembly or incorporation of the Product into any other device.
11. Limited Warranty (Liability for Defects)
11.1 Breas’ Terms and Conditions for Warranty, Preventive Maintenance, and Other Services (https://breas.us/warranty-policy/) governs and is explicitly incorporated herein in its entirety
12.1 The Purchaser shall cooperate with the Seller in effecting field corrections of systematic defects, removals, or upgrades (“Recall”) of the Product at the direction of the Seller. The Seller is responsible for Recalls and shall determine when the defect is systematic and when a Recall shall be performed. In the event that a Recall is deemed to be necessary the Seller shall provide all written instructions to the Purchaser as to the correct management of the affected Products.
12.2 Defects, removals or upgrades that have been specifically defined as Recalls by the Seller shall be remedied by the Purchaser at its business location according to the instructions given by the Seller. If necessary and at the choice of the Seller, the Product or parts of the Product may instead be transported from the Purchaser to the Seller for remedy. In case of remedy at the Purchaser’s location, the Seller shall without any costs for the Purchaser deliver necessary new components, software or other materials that replaces the item. The Seller shall further at cost price compensate the Purchaser for the necessary repair or replacement work performed by it at its location. If the Seller instructs the Purchaser to return the Products to the Seller, the Seller shall be liable for the costs for repair performed by the Seller as well as the cost of transportation of the Products from the Purchaser to the Seller and back to the Purchaser. The Purchaser shall, if required, comply with the country’s regulations regarding such actions and assist the Seller in notifying the appropriate regulatory authorities.
12.3 The Seller’s liability in the event of a Product Recall is limited to the above explicitly stated costs and the Seller has no liability for any costs or damage incurred by the Purchaser or its customers that go beyond the costs specified above.
12.4 The Purchaser shall cooperate with the Seller in effecting a Recall of a Product at the direction of the Seller.
13. Product Complaints
13.1 If the Purchaser has or receives a Product complaint, the complaint shall immediately be directed to the Seller. The Seller is responsible for investigating complaints regarding the provided Products. The Purchaser shall not take any action in respect of or compromise such complaint without the prior written consent of the Seller. The Purchaser is responsible to support the Seller on complaint investigations, including gathering circumstantial data from the customer, service reports and filling in an incident report if requested by the Seller such that the Seller can meet requirements of reporting incidents to competent authorities.
14. Liability Limitation
14.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE GENERAL TERMS AND CONDITIONS, TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, IN NO EVENT SHALL THE SELLER, ITS AFFILIATES, SUPPLIERS AND SUBCONTRACTORS BE LIABLE TO THE PURCHASER ANY OF ITS CUSTOMERS OR END USERS OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, OR REVENUE, GOODWILL, LOSS OF USE, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, DOWNTIME COSTS, COST OF DELAYS, OR FOR ANY PENALTIES, WHETHER ANY SUCH CLAIM FOR THE SAME IS BASED ON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION OR OTHERWISE EVEN IF THE PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM THE GENERAL TERMS AND CONDITIONS, THE PRODUCTS, THE PRODUCT RELATED SERVICES, MARKETING MATERIAL AND ANY OTHER ITEMS FURNISHED BY THE SELLER UNDER THE GENERAL TERMS AND CONDITIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE GENERAL TERMS AND CONDITIONS, THE SELLER’S TOTAL LIABILITY ARISING OUT OF THE GENERAL TERMS AND CONDITIONS FOR ANY CLAIMS WHETHER IN CONTRACT, WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY, INDEMNIFICATION OR OTHERWISE, OR FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH THE GENERAL TERMS AND CONDITIONS OR THE PERFORMANCE OR BREACH THEREOF, OR FROM ANY DESIGN, SALE, INSTALLATION, OPERATION OR USE OF THE PRODUCTS UNDER THE GENERAL TERMS AND CONDITIONS, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE PAID TO THE SELLER BY THE PURCHASER FOR THE SPECIFIC PRODUCTS OR PART THEREOF OR PRODUCT-RELATED SERVICES GIVING RISE TO THE CLAIM.
15. Intellectual Property Rights
15.1 “Intellectual Property Rights” shall means patents (including utility models), design patents, design rights (whether or not capable of registration), copyrights, copyright related rights, moral rights, rights in databases, trademarks, trade secrets, know-how, trade names, rights under marketing law and passing off, topography rights, and all other intellectual property rights; in all cases whether or not registered or registerable, and applications for any of the foregoing respectively, and all rights to apply for the same, and all rights and forms of protection of a similar nature or having a similar effect to any of these anywhere in the world.
15.2 The Purchaser agrees that it does not have any property interest in the Seller’s intellectual property, including, but not limited to, its trademarks, trade names, copyrights, trade secrets, patents, know how or other proprietary rights of any nature whatsoever, whether or not incorporated in the Products, and the Purchaser will not attempt to reverse engineer any such Products or disclose or use any such intellectual property without the Seller’s prior written consent. Any technical or other information the Seller provides to the Purchaser in connection with the General Terms and Conditions shall remain the property of the Seller and shall be kept confidential by the Purchaser and used only to perform the Purchaser’s obligations under the General Terms and Conditions. Such information may include cost and pricing information, know-how and service manuals.
15.3 The Products may be the object of Intellectual Property Rights. Beside the distribution, marketing and sale of the Products according to the General Terms and Conditions by the Purchaser, the General Terms and Conditions entails no license to or transfer of ownership of any Intellectual Property Rights of the Seller to the Purchaser. Unless otherwise agreed to in writing signed by the Seller’s duly authorized representative, all right, title and interest in any inventions, developments, improvements, or modifications of the Products made by the Seller or the Purchaser as a result of a purchase or other transaction under the General Terms and Conditions shall exclusively remain with the Seller. The Purchaser also undertakes to refrain from applying for patent, industrial design, or similar right with any of the Products as the object of such right.
15.4 The Products are marked with trademarks of the Seller. The General Terms and Conditions does not grant either party the right to use the other party’s or their Affiliates’ trademarks except as set out under this Clause 15. Subject to the Seller’s trademark policies, which may change from time to time in the Seller’s sole discretion, and the General Terms and Conditions, the Seller hereby grants to the Purchaser a limited, revocable, non-exclusive, non-transferable and non-sublicensable license to use the Seller’s trademarks for the Products (“Breas Trademarks”) during the Term and solely on or in connection with the marketing for sale, sale, renting or leasing of the Products in the Territory in accordance with the General Terms and Conditions. The Purchaser will promptly discontinue the display or use of any Breas Trademark, or change the manner in which a Breas Trademark is displayed or used with regard to the Products when requested by the Seller. Other than the express licenses granted by the General Terms and Conditions, the Seller grants no right or license to the Purchaser, by implication, estoppel or otherwise, to the Products or any Intellectual Property Rights of the Seller. Any such use of the Breas Trademarks by the Purchaser in connection with its marketing for sale, sale, lease or rental of the Products is at the Purchaser’s sole cost and expense.
15.5 The Purchaser will not: (i) take any action that may interfere with any of the Seller’s rights in or to the Seller’s Intellectual Property Rights, including the Seller’s ownership or exercise thereof; (ii) challenge any right, title or interest of the Seller in or to the Seller’s Intellectual Property Rights; (iii) make any claim or take any action adverse to the Seller’s ownership of the Seller’s Intellectual Property Rights; (iv) register or apply for registrations, anywhere in the world, for Breas Trademarks or any other trademark that is similar to the Breas Trademarks or that incorporates Breas Trademarks in whole or in confusingly similar part; (v) use any mark, anywhere, that is confusingly similar to the Breas Trademarks; (vi) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Products purchased under the General Terms and Conditions or any Breas Trademark; (vii) misappropriate any Breas Trademarks nor any misspellings of any Breas Trademarks for use as a domain name without prior written consent from the Seller; (viii) alter, obscure or remove any Breas Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the Products, marketing materials or other materials that the Seller may provide; or (ix) place or use the Breas Trademarks: (a) on, or directly or indirectly in connection with, any place of business or other facility; or (b) on, or directly or indirectly in connection with, signs, letterheads, advertising or other promotional materials, or otherwise, in a manner that may indicate that the Purchaser is anything other than a purchaser of Products. All goodwill arising from the Purchaser’s use of the Breas Trademarks shall inure solely to the benefit of the Seller.
15.6 The Purchaser shall without delay inform the Seller of all infringements or suspected infringements of the Seller’s Intellectual Property Rights as regards to the Products in the Territory, or if infringements of Intellectual Property Rights belonging to third parties is said to take place by the Purchasers sale of the Products. If the Seller’s Products is held to infringe a United States patent in effect as of the date of the General Terms and Conditions (other than any infringement resulting from the Seller’s compliance with the Purchaser’s designs, specifications or instructions or from the use of the Products in combination with other materials or the operation of any process), then the Seller may at its option procure for the Purchaser the right to use the Products, modify or replace it with non-infringing Products; refund the purchase price allocable to the infringing Products, or settle or otherwise terminate said actions on behalf of the Purchaser. The foregoing is the Seller’s entire liability and the Purchaser’s sole remedy for patent infringements of the Products. The Purchaser shall defend, indemnify and hold the Seller harmless from all expenses, losses and other damages resulting from any actual or alleged infringement of intellectual property rights arising from the Seller’s compliance with the Purchaser’s designs, specifications or instructions, from the use of the Products in combination with other materials, or from the operation of any process.
16. Force Majeure
16.1 If one of the Parties is prevented from fulfilling its obligations due to circumstances outside its control, such as epidemic, pandemic, labor dispute, stroke of lightning, fire, storm, flood, earthquake, war, terrorist actions, mobilization or extensive call-ups, requisition, confiscation, currency restrictions, directions from the authorities, insurgencies and riots, restrictions concerning motive force, general scarcities in transportation, goods and energy, measures taken by state or government authorities or errors or delayed deliveries from contractors or subcontractors, this shall constitute reason for exemption, which entails the right to postpone meeting the obligations for as long as the hindrance exists, and relief from fines and other penalties of law. The Party shall as soon as possible inform the opposite Party if such circumstances arise. If the hindrance endures at least 3 months, the Party has the right to terminate the Agreement in writing without liability to pay compensation.
17. Survival of Obligations
17.1 All provisions of the General Terms and Conditions which are expressly or by implication intended to survive and apply following expiry or termination of the General Terms and Conditions, including but not limited to Clause 11 (Limited Warranty), Clause 14 (Liability Limitation), Clause 15 (Intellectual property rights), Clause 19 (Confidentiality), Clause 20 (Data Protection), and Clause 21 (Applicable Law and Disputes), shall survive and shall continue in full force and effect notwithstanding such expiry or termination.
18.1 The Purchaser has a right to, after the Seller’ prior written approval, appoint sub-Purchasers, agents or other representatives for the Products in the Territory. If such representative is appointed, the Purchaser shall ensure that the latter as far as applicable competition law allows in all respects acts in accordance with the General Terms and Conditions. The Purchaser is responsible for such representatives’ action or failure to act, excluding all responsibility for the Seller.
19.1 Each Party pledges himself for the duration of the General Terms and Conditions and thereafter not to, without the other Party’s written consent, disclose any information to a third party (whether oral or written or in visual, electronic or tangible form) regarding or otherwise relating to the other Party’s affairs or other business matters if it may be deemed as business or trade secrets or otherwise be used as such information for any other purpose than the Party’s performance of its obligations according to the General Terms and Conditions. Any information which the Party has stated is confidential shall be considered as business or trade secrets.
19.2 Such confidentiality shall not apply to information which the Party can show with written document became known to it otherwise than through the Parties’ business relation or which is publicly known. Nor shall such confidentiality apply with respect to any required disclosure of such information by law or any governmental or other regulatory authority.
19.3 A Party shall return any confidential information upon request by the other Party.
19.4 Any design, reports, plans, drawings, standards, specifications, or other information disclosed to the Purchaser by the Seller, including pricing and the Agreement, (“Breas Documents”) were developed at the Seller’s expense or are confidential business information and shall remain the Seller’s exclusive property. Without the express prior written consent of the Seller, the Purchaser shall not copy or disclose Breas Documents to any third party and shall not use them for any purpose other than to fulfill the obligations contemplated in the General Terms and Conditions. Breas Documents are not suitable for use on any other agreement or project and any reuse of Breas Documents without the express written consent of the Seller will be at the sole risk of the Purchaser, and the Purchaser shall indemnify, defend and hold the Seller harmless from any and all claims arising from the Purchaser’s reuse of Breas Documents. Upon the Seller’s request at any time, the Purchaser shall promptly return all Breas Documents.
20. Data Protection.
20.1 Personal data are protected by laws and regulations governing the privacy and security of these data, including health data or protected health information. Each Party undertakes to comply with all applicable laws, regulations, and rules that protect personal data and privacy, including but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”), the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”), and General Data Protection Regulation (GDPR, specifically “Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016,” effective on 25 May 2018).
20.2 By requesting the Seller to access and/or process any customer’s personal data to provide order fulfillment, customer support, technical support, and other assistance, the Purchaser represents and warrants that it has obtained and will maintain the right and authorization for such purpose by receiving a written and signed explicit authorization and/or consent from such customer as required under laws governing the relevant jurisdiction. The Purchaser shall indemnify, defend, and hold the Seller harmless from any and all claims arising from the Purchaser’s breach of this Clause 20.
21. Applicable Law and Disputes
21.1 All disputes regarding the interpretation or application of the General Terms and Conditions as well as any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflict of laws principles providing for the application of the laws of any other jurisdiction.
21.2 Any suit, action or proceeding by any Party that arises under or in any way relates to the General Terms and Conditions or the transactions contemplated hereby may be brought only in the state courts of the Commonwealth of Massachusetts or the United States District Court for the District of Massachusetts, Boston Division, and shall be tried only by a court and not by a jury. Each party hereby consents to the jurisdiction of such courts to decide any and all such suits, actions and proceedings and to such venue, and they hereby expressly waive any right to a trial by jury in any and all such suits, actions and proceedings.
22.1 If any provision of the General Terms and Conditions is held to be invalid or unenforceable by any competent court, authority or arbitral tribunal, the remainder of that provision and all other provisions will remain valid and enforceable to the fullest extent permitted by applicable law, and the Parties shall negotiate any necessary changes to the General Terms and Conditions to maintain the spirit of the General Terms and Conditions and the framework, structure and operation of the transactions contemplated by the General Terms and Conditions.
22.2 A Party’s waiver of any of its rights or remedies under the General Terms and Conditions must be in writing and duly executed by it. No single or partial waiver of any such right or remedy shall preclude any other or further exercise of that or any other such right or remedy.
22.3 This General Terms and Conditions for Sales and the appendix expressed referred to herein sets forth the entire, final and exclusive agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous statements, agreements, understandings, communications, representations and/or promises, whether in writing or oral, between the Parties relating thereto; unless this General Terms and Conditions for Sales is expressed incorporated in an agreement, in which event, this General Terms and Conditions for Sales and such agreement shall constitute the entire, final and exclusive agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous statements, agreements, understandings, communications, representations and/or promises, whether in writing or oral, between the Parties relating thereto.