GENERAL TERMS AND CONDITIONS OF SALE
(effective as of 1 October 2023)
1. General
1.1 These general terms and conditions of sale (the „GTCs„) shall govern all deliveries and services rendered by Novamem Ltd (CHE-396.566.155), a company incorporated under the laws of Switzerland, with its registered office at Rütistrasse 16, 8952 Schlieren, Switzerland („Novamem„) to each Customer (the „Customer„; Novamem and the Customer, collectively, the „Parties„, an each, individually, a „Party„).
1.2 Unless specifically agreed otherwise by the Parties in writing, these GTCs apply exclusively, and any other general terms and conditions, in particular any general terms and conditions of the Customer, are excluded and shall not apply, even if Novamem has not expressly rejected them. These GTCs shall also apply, without a separate agreement to this effect being necessary, to all future transactions with the Customer.
1.3 These GTCs are subject to change without notice at any time, in Novamem’s sole discretion. The Customer is responsible for checking the GTCs regularly.
1.4 As used in these GTCs, the following terms shall have the following meaning[NKF1] :
– Products: means all standard products of Novamem offered inter alia via its website novamem.com;
– Deliverables: means all custom-made products of Novamem that are individually developed for a Customer based on agreed specifications;
– Services: means all Services provided by Novamem, in particular with respect to the development of Deliverables.
2. Conclusion of Contracts; Offer Documents
2.1 Novamem’s offers and quotations shall not be binding unless explicitly stated therein and, consequently, a binding contract between the Parties will be formed only upon the earlier of (i) a written order confirmation by Novamem, or (ii) the commencement of performance of a service or the delivery of goods, as applicable, by Novamem.
2.2 Novamem’s field workers and sales personnel are not authorized to conclude oral agreements. Any oral commitments deviating from Novamem’s offer, quotation or order confirmation shall only be valid if confirmed in writing and signed by a duly authorized Novamem representative (a „Novamem Representative„). The Customer shall bear the burden of proof that the Parties have agreed to any terms that are not set forth in writing.
2.3 Verbal agreements made after an order confirmation and/or an execution of a contract must be confirmed in writing by a Novamem Representative to be binding.
2.4 Any change order placed by the Customer shall become valid only when approved in writing by a Novamem Representative. Such an approved change order will serve as an amendment to the purchase order and shall form an integral part of the Parties‘ agreement. The terms and conditions of the purchase order, other than those amended by the change order, shall apply unchanged.
2.5 Purchase orders accepted by Novamem may be cancelled by the Customer only upon the prior written consent of a Novamem Representative. Upon a valid cancellation, Novamem shall stop any production and supply. The Customer shall pay Novamem for all work and materials that have been committed to and/or identified in the Customer’s purchase order, but in any case at least 60% of the purchase order value.
3. Performance; Delivery
3.1 In the event the Customer has to provide Novamem with information, supply Novamem with materials or meet other duties of cooperation for the execution of the order, Novamem can fully and unconditionally rely on the accuracy, completeness and proper quality of the information and materials provided by the Customer. Novamem shall not be liable for any incorrect, contradictory or incomplete information given by the Customer; Customer is liable and shall hold Novamem fully harmless from any consequences arising from the above (including in case of Customer information / materials violating any third party intellectual property or other rights). Furthermore, Novamem shall not be held responsible for verifying whether layouts, technical data or information delivered to Novamem are correct, complete or do not contradict each other. However, Novamem reserves the right not to perform if it believes that the Customer does not or does not properly meet the above-mentioned obligations.
3.2 Representations as to deadlines for delivery of Products, Deliverables or Services are approximate only, unless a Novamem Representative has provided an express binding commitment in writing. Deadlines for deliveries and services shall begin to run when the order confirmation is given, but not before all technical issues and details relating to the order have been resolved. Deadlines shall not start to run if the Customer is in default with the fulfillment of its duties, in particular, with regard to the provision of materials, documents, exemptions or permits that have to be furnished by the Customer, or with regard to any payments which must be made for the deliveries or services or previous deliveries or services.
3.3 Delivery dates shall be deemed to have been met if, on or before this date, Products and/or Deliverables are ready for dispatch and the customer has been notified accordingly and Novamem has started to provide the ordered Services respectively.
3.4 Novamem shall not be responsible for failure or delay in performance or delivery as the result of events of force majeure, including all revisions of statutory law, acts of governmental authority or any agency or commission thereof, war, fire, flood, accidents, acts of God, terrorism, embargoes, acts of third parties, breakdown of equipment, shortages of material, labor or power, labor strikes, work stoppage or labor unrest, or any other cause beyond Novamem’s reasonable control that renders the delivery of Products and Deliverables or the Service(s) substantially more difficult or impossible. This shall also apply if such events occur during a delivery delay or at a supplier of Novamem. If any of the foregoing events occurs, Novamem may make deliveries of the Products/Deliverables and provision of Services proportionate to production/availability and/or postpone the shipment or delivery period of the goods and services to a reasonable time after the difficulty has ceased, or Novamem may, at its option, upon due notice given to the Customer, after the commencement of any such event declare the agreement terminated and all rights and liabilities of Novamem and the Customer, except with respect to Products/Deliverables and Services previously shipped or performed or in Novamem’s inventory, shall cease and terminate. In no event shall Novamem be liable to the Customer for compensation or damages. Novamem shall notify the Customer without undue delay of the obstacle to performance and of its end.
3.5 Import, export and/or the transport of goods outside of Switzerland shall be subject to the import and/or export regulations applicable in Switzerland, the country imported to, and in all other relevant jurisdictions (as applicable) . The Customer shall be solely responsible for the procurement of relevant approvals and permits. However, at the Customer’s request and expense, Novamem shall use its best efforts, to the extent reasonable, to obtain the approvals necessary for the export of the Products/Deliverables and/or any other necessary documents from the domestic authorities.
3.6 Novamem reserves the right to determine whether it will sell and/or deliver Products/Deliverables and/or Services to Customers and/or nationals of countries outside Switzerland, the European Union, Canada and the US.
3.7 Novamem shall not be liable for any delivery delay, unless in case of intentional misconduct or gross negligence. Any degree of fault on the Customer’s part will be taken into account.
3.8 If the Customer fails to accept delivery or negligently breaches other obligations to cooperate with Novamem, Novamem shall be entitled to compensation for any loss that it may suffer as a consequence, including any additional expenses or costs that Novamem may incur as a result of the delay.
3.9 Novamem shall be entitled to make partial deliveries and/or performance of Services. Partial deliveries / performance of Services may be invoiced separately.
4. Shipment; Risk
4.1 Unless otherwise agreed in writing, shipments of Products and/or Deliverables shall be EXW (Incoterms 2020) Novamem´ facility (Rütistrasse 16, 8952 Schlieren, Switzerland).
4.2 Title and risk of loss or damage to the Products and/or Deliverables, as well as the obligation to bear any costs relating thereto, shall pass to the Customer upon Novamem making the packed Products / Deliverables available for pickup / shipment at Novamem’s facility and Novamem’s respective notification to Customer. This shall also apply in the event of partial deliveries.
4.3 Novamem shall not be liable for damage and loss during loading or transport. In particular, any damage and loss shall not release the Customer from the obligation to pay the purchase price in full.
5. Prices
5.1 All prices are quoted net EXW (Incoterms 2020), including customary packaging.
5.2 All prices are subject to change without prior notice except for work in progress or as otherwise specifically provided in a written quotation signed by a Novamem Representative. Rates of tax and duties on the Products/Deliverables and Services will be those applying at the time of invoice.
5.3 Unless otherwise expressly stated, prices quoted are exclusive of any sales, use or excise taxes, customs duties, imposts or other assessments of any kind, value-added or similar taxes, which may arise from the manufacture, processing, sale, delivery or shipment of the Products / Deliverables or Services, and the Customer shall be solely responsible for any and all such taxes, duties or other assessments. If Novamem has the legal obligation to collect any such taxes, duties or other assessments, the appropriate amount shall be added to Novamem’s invoice to the Customer and paid by the Customer.
7. Inspection and Acceptance
7.1 The Customer shall inspect the Products/Deliverables promptly upon delivery and shall give written notice to Novamem specifying any alleged non-conformance, defect, damage, or shortage. The Customer shall be deemed to have accepted the Products/Deliverables as having been delivered in accordance with the relevant contract and as being free from any non-conformity, defect, damage, shortage, or any other deficiency whatsoever, unless such notice has been given in writing and received by Novamem within (a) seven (7) working days after Customer´s receipt of delivery of the Products/Deliverables, in the case of any non-conformities or deficiencies reasonably ascertainable by visual inspection or routine testing procedures, or within (b) seven (7) working days after Customer learns of the facts giving rise to the claim, in the case of any other non-conformities or deficiencies not reasonably ascertainable by visual inspection or routine testing procedures. Customer´s failure to give notice of any claim within the applicable time period specified above shall be deemed an absolute and unconditional waiver of such claim, irrespective of whether the facts giving rise to such claim shall have been discovered or whether processing or use of the Products/Deliverables shall have then taken place.
7.2 Novamem reserves the right to inspect and test the Product/Deliverable objected in each case of a notification of non-conformities or defects by the Customer. The Customer shall give Novamem reasonable time and opportunity for such inspection. Upon Novamem’s request, the Customer shall return the item objected to Novamem at Novamem’s expense. If the Customer’s notification of non-conformities or defects proves to be unjustified, the Customer shall be obligated to reimburse Novamem for all costs incurred in this context (e.g., inspection costs, travel costs and shipment costs) upon submission of receipts.
7.3 Defects of partial deliveries shall not entitle the Customer to reject the remainder of the contractual quantity unless the Customer can prove that it would be unreasonable for the Customer to accept only a part of the delivery under these circumstances.
7. Limited Warranty
7.1 Products and Services: Novamem´s Products are manufactured and all Services are rendered with due care and in accordance with applicable statutory laws and regulations. Owing to the complexity of biotechnological products, materials and procedures, however, it cannot be guaranteed that our Products or Services function without defects in all applications, environments and/or combinations. For this reason, Novamem does not assume any guarantee or liability to the effect that our Products or the results of our Services are appropriate in each individual case or for the specific purpose intended by the Customer. Subject to the limitations of this Section 7 and unless otherwise expressly provided, Novamem warrants only that the Products and Services will conform to Novamem’s published specifications for such Products and Services in effect at the time of order acceptance, or any analysis certificate presented with the Product or Service result.
7.2 Deliverables: Novamem’s Deliverables are developed and manufactured with due care in accordance with the specifications agreed in writing with the Customer. Beyond development and manufacture in conformity with the agreed specifications, Novamem makes no representations or warranties with respect to the Deliverables. In particular, Novamem does not assume any guarantee or liability to the effect that the Deliverables are appropriate for the specific purpose intended by the Customer.
7.3 Any samples, measurements and Product/Deliverable/Service details contained in catalogues, price lists, brochures and/or quotations presented to the Customer only constitute an approximate guide and are under no circumstances to be understood as warranted or as an assurance or guarantee of properties. Novamem reserves the right to make any changes to these items at its absolute discretion.
7.4 The warranty shall not cover defects and/or damage caused by force majeure, shipment or other external factors, inappropriate treatment, improper storage, disregard of operating, safety and instruction procedures or recommended maintenance intervals, or normal wear and tear. In particular, no warranty shall apply to any item which has been operated by untrained users, serviced, repaired or altered except as set forth in the user manual or otherwise expressly authorized by Novamem, or which has been otherwise interfered with by the Customer and/or by unauthorized third parties. Defects and/or damage caused by the use of replacement parts, accessories and/or expendable materials (in particular reagents) other than those expressly approved by Novamem, shall also not be covered by this warranty.
7.5 Novamem’s sole liability, and the Customer’s sole and exclusive remedy, pursuant to any claim of any kind against Novamem, including without limitation any claim in contract, negligence or strict liability, shall be, at Novamem’s option, (i) re-delivery or repair of any non-conforming Products/Deliverables or re-performance of any nonconforming Services (or such portion thereof as may reasonably be required to be re-performed) until completion or (ii) a refund of the payments allocable to the non-conforming Products/Deliverables or Services.
7.6 For Products (except for consumables), the warranty period is twelve (12) months from delivery EXW (Incoterms 2020) according to Section 4 above for defects of quality or title. For consumables (e.g. filters, membranes), the warranty period expires at the earlier of either (i) the date set forth in the first sentence of this Section 7.6 or (ii) the indicated use-by date of the product (see Section 8.3, below). Deliverables that do not conform to the agreed specifications must be notified to Novamem within one (1) month from delivery in order to be covered by this Section 7; for any non-conformities notified thereafter, no warranty is provided.
7.7 THE LIMITED WARRANTY IN SECTION THIS 6 IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES AND NOVAMEM HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR (B) ANY IMPLIED WARRANTY THAT ANY USE OF THE PRODUCTS, DELIVERABLES OR SERVICES WILL NOT VIOLATE OR INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHTS OF THIRD PARTIES, WITH RESPECT TO THE PRODUCTS, DELIVERBLES OR SERVICES, OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 7.
8. Use
8.1 Products, Deliverables and Services sold or otherwise delivered by Novamem must only be used for the purposes and in accordance with the usage instructions stated on the product package, manual and/or the applicable product use statement. The Customer shall be solely responsible for ensuring that the Customer’s intended use of the Products (in particular, reagents and kits) and/or Deliverables does not violate statutory law and that all required permits have been granted.
8.2 The Customer shall handle and use the results of the Products/Deliverables in conformity with (a) good laboratory practice, (b) all applicable laws and regulations, guidelines and decisions of judicial or regulatory bodies and (c) any IP (as defined below) and other proprietary rights of third parties.
8.3 Products/Deliverables with use-by dates may only be used subject to the use-by dates stated on the product package and are only warranted for the use by such dates.
9. No Resale; No Export
9.1 Except as otherwise agreed in writing by a Novamem Representative, the purchase or other delivery of Novamem Products/Deliverables only conveys to the Customer the non-transferable right for the Customer to use the delivered goods in compliance with the applicable product use statement. Unless otherwise authorized under a commercial license from Novamem, no right to resell, re-export or transfer (including, without limitation, by way of a lease, by granting free use or otherwise) the Products/Deliverables, or any portion of them, in any way, shape or form, including as a component of another product, is conveyed.
9.2 The Customer shall not export, re-export or import any Products/Deliverables delivered by Novamem to any country subject from time to time to any sanctions or trade embargoes administrated by the United Nations, the European Union or any competent body of the United States of America. In the event the export, re-export or import into another country, breaches any statutory provisions applicable to such country, and if a claim is made against Novamem for this reason by the exporting or importing country or a transit state based on such statutory provisions, the Customer shall indemnify Novamem against any and all expenses, claims, losses or damage resulting from or in connection with such export, re-export or import.
9.3 The Customer represents that the Products and/or Deliverables will not be used in any weapon systems. At Novamem’s request, the Customer will sign a letter guaranteeing Novamem that the Customer has not used any of the Products/Deliverables for weapon systems and has not resold or exported any of the goods for such purposes.
10. Limitation of Liability and Remedy
10.1 THE CUSTOMER AGREES THAT IN NO EVENT NOVAMEM’S LIABILITY TO THE CUSTOMER, THE CUSTOMER’S CLIENTS, OR ANY THIRD PARTY SHALL INCLUDE INCIDENTAL DAMAGES, INDIRECT DAMAGES, CONSEQUENTIAL DAMAGES, EXEMPLARY DAMAGES, OR PUNITIVE DAMAGES. THE TERM „CONSEQUENTIAL DAMAGES“ SHALL INCLUDE, BUT NOT BE LIMITED TO, LOSS OF ANTICIPATED PROFITS, LOSS OF USE, LOSS OF REVENUE, COST OF CAPITAL AND DAMAGE OR LOSS OF OTHER PROPERTY OR EQUIPMENT, LOSS OF REPUTATION OR OPPORTUNITY, LOSS OF FINANCING OR OTHER DAMAGES OF SIMILAR NATURE, ARISING IN CONNECTION WITH THE CUSTOMER’S USE OF OR INABILITY TO USE THE PRODUCTS/DELIVERABLES OR SERVICES, OR NOVAMEM’S FAILURE TO PERFORM THE SERVICES IN ACCORDANCE WITH THE LIMITED WARRANTY SET FORTH IN SECTION 7 ABOVE. THIS LIMITATION OF LIABILITY WILL APPLY UNDER ANY LEGAL THEORY AND REGARDLESS OF THE FORM OF ACTION, INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND, EVEN IF NOVAMEM HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, AND SHALL ALSO APPLY IN THE EVENT OF LOSSES CAUSED BY THE BREACH OF DUTIES IN CONTRACT NEGOTIATIONS.
10.2 NOVAMEM DISCLAIMS ANY LIABILITY TO THE FURTHEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. IN NO EVENT SHALL Novamem’S aggregate liability to the Customer and any third party arising out of THE PARTIES‘ agreement exceed the price actually paid by the Customer for the specific products/DELIVERABLES or services provided. .
10.3 The Parties acknowledge that the limitations set forth in this Section 10 are integral to the prices charged and that, were Novamem to assume any further liability other than as set forth herein, such prices would of necessity be set substantially higher. The Customer expressly agrees that this limitation of damages and remedies shall constitute the exclusive remedies and measure of damages available to the Customer and all other remedies and measures of damages which might otherwise be available under the law of any jurisdiction are hereby waived by the Customer.
10.4 Without limitation to the generality of the foregoing limitation, Novamem shall not be liable for any damage or loss caused by the improper or unapproved use of the Products/Deliverables. The Customer shall defend, indemnify and hold harmless Novamem from and against any and all losses, costs and expenses, including without limitation reasonable attorneys‘ fees, in any way arising out of or relating to (i) any use of the Products/Deliverables not in compliance with the uses stated in Section 8 above, (ii) any failure of the Customer to comply with good laboratory practice, laws, regulations, guidelines or decisions in the handling or use of the Products/Deliverables, (iii) any violation or infringement of any IP (as defined below) or other proprietary rights of third parties by the Customer in the handling or use of the Products/Deliverables, or (iv) any other use or misuse of the Products/Deliverables by the Customer.
10.5 The limitations set forth in this Section 10 shall not restrict or exclude Novamem’s liability for death or personal injury caused by negligence on Novamem’s part, on the part of Novamem’s executive employees or on the part of Novamem’s vicarious agents. Further, nothing set forth herein shall restrict or exclude Novamem’s liability based on intentional misconduct or gross negligence on Novamem’s part, on the part of Novamem’s executive employees or on the part of Novamem’s vicarious agents, or Novamem’s liability resulting from mandatory product liability laws or other mandatory statutory laws and regulations, as applicable.
11. Payment Terms
11.1 Any invoices issued by Novamem are payable within thirty (30) days of receipt. No reductions in the invoiced amount for banking or similar fees are accepted. Novamem reserves the right to request pre-payment of the full amount by bank transfer or via credit card (in particular with respect to first orders by a Customer).
11.2 The Customer may not set off any counterclaims or exercise any right of retention vis-à-vis Novamem.
12. Retention of Title
12.1 Notwithstanding delivery, title in the Products and/or Deliverables shall not pass from Novamem to the Customer and Novamem shall retain full legal and beneficial ownership of the Products and/or Deliverables until all amounts due to Novamem in respect of the deliveries or Services, or any previous deliveries or Services, or other payments due under any other agreement with the Customer, have been paid in full.
12.2 Until title in the Products and/or Deliverables passes to the Customer, the Customer shall hold the Products and/or Deliverables on a fiduciary basis as bailee for Novamem and shall take all necessary steps for their protection and insure them against all risks with a reputable insurance company for the full purchase price (plus VAT).
12.3 The Customer herewith authorizes Novamem to effect any necessary filings with the relevant registers (Eigentumsvorbehaltsregister), if necessary to give full effect to this Section.
12.4 Notwithstanding that full legal and beneficial ownership of the Products and/or Deliverables (or any of them) remains with Novamem, the Customer may use the Products and/or Deliverables in the ordinary course of the Customer’s business. Except as permitted by this paragraph, the Customer may not create (or allow to be created) in favor of any third party any right in or security over any of the Products or Deliverables which are the property of Novamem.
13. Intellectual Property, Property Rights of Third Parties
13.1 Any concept, discovery, invention, development, research, technology, work of authorship, trade secret, software, firmware, content, material, tool, process, technique, know-how, brand, data, plan, device, apparatus, specification, design, prototype, circuit, layout, algorithm, program, code, documentation, catalogues, brochures illustrations or other material or information, tangible or intangible, whether it may be patented, copyrighted, trademarked or otherwise protected (collectively „IP„), which was created, discovered, developed, owned or controlled by Novamem shall remain at all times the property of Novamem.
13.2 The Customer shall have a non-exclusive, non-transferable license to use Novamem’s IP to the extent strictly necessary for using the Products/Deliverables and/or Services, which are the subjects of the contract. Nothing contained herein or the contract nor the delivery of any goods by Novamem or the provision of any services by Novamem shall be deemed to grant the Customer any rights or licenses over any IP of Novamem.
13.3 The Parties shall treat all IP as Confidential Information (as defined below).
13.4 The Customer shall be solely responsible that the materials, documents or other information provided by the Customer do not infringe the IP rights or other rights of third parties (in particular, patents, utility patents and other property rights and copyrights). The same shall apply in the event the Customer prescribes by means of instructions, information, documentation, drafts or drawings how an ordered Product/Deliverable is to be created or an ordered Service is to be rendered.
13.5 The Customer shall be obligated to indemnify and hold harmless Novamem from any claims of third parties that are asserted against Novamem based on such infringement.
13.6 Novamem shall not be liable for any incorrect, contradictory, or incomplete information given by the Customer; any consequences arising from the above shall be borne by the Customer.
14. Confidentiality
14.1 The term “Confidential Information”, as used herein, shall include all proprietary and/or non-public information and materials disclosed by Novamem to the Customer (orally, in writing or any other form), or otherwise received or obtained by the Customer, whether scientific, technical, business, or financial, including IP and any information learned by Customer during any visit to Novamem´s facilities. This Section 14 shall not apply to Confidential Information or of any portion of such information which as Customer can show by presenting adequate evidence: (a) is now or later made known to the public through no default by Customer of its obligations under this Agreement; (b) Customer can show was in its rightful possession prior to the earliest disclosure by Novamem, as evidenced by written documents in its files; (c) is rightfully received by Customer from a third party having no obligation of confidentiality to Novamem; (d) is independently developed by Customer by persons who did not have access to Confidential Information.
14.2 Customer agrees to hold in confidence and not publish or disclose to any third parties any of the Confidential Information without the prior written consent of Novamem, and not to use the Confidential Information for any purpose except for using the products. Customer shall not copy or reverse engineer, reverse compile, nor attempt to derive the composition or underlying code or other information of any Confidential Information. The Customer agrees to use the same degree of care (and in any event not less than reasonable care) to safeguard the confidentiality of the Confidential Information that it uses to protect its own secret information, and to keep the Confidential Information in a secure location at all times.
14.3 The Customer agrees to limit any disclosure of the Confidential Information only to those of its directors, officers, employees, and outside professional advisors (including consultants, independent contractors, and the like) or of an entity controlled, controlling, or under common control with Customer, who have a need to know and who are bound by obligations of confidentiality and non-use at least as restrictive as set forth herein, and to advise such persons of the Customer’s obligations hereunder.
14.4 In case the Customer is required to disclose Confidential Information in order to comply with laws, regulations or court order, the Customer shall disclose such Confidential Information only to the extent necessary for such compliance, provided, however, that Customer shall give Novamem prompt written notice of such requirement or request to disclose Confidential Information so that Novamem may seek an appropriate protective order, and the Customer shall use its best efforts to secure confidential treatment of the Confidential Information to be disclosed.
14.5 The Customer shall return any and all Confidential Information provided to it by Novamem, including without limitation any materials, documents, plans, drawings, data carriers of whatever kind, and any copies thereof, to Novamem immediately upon Novamem´s written request, provided, however, that the Customer may retain one copy thereof in the confidential, restricted access files of its legal counsel for the purpose of determining any continuing obligation and only in connection with that purpose. In case of Confidential Information stored in electronic, magnetic or digital media, the Customer shall erase or render unreadable all materials furnished (including, without limitation, working papers containing any Confidential Information or extracts therefrom) which contain Confidential Information.
14.6 The obligations of confidentiality hereunder shall survive the end or termination of the contract for whatever reason indefinitely.
14.7 No warranties or representations are made by Novamem for Confidential Information. The Customer should rely on Confidential Information at its own risk. The Customer expressly recognizes that ANY AND ALL CONFIDENTIAL INFORMATION IS PROVIDED „AS IS“.
14.8 Any specific non-disclosure agreement entered by and between the Parties shall apply and remain unaffected.
14.9 In the event of breach, or a threatened breach of the provisions of this Section 14 by Customer, Novamem shall be entitled to an injunction restraining Customer from committing such breach without showing or proving any actual damage sustained.
15. Data Privacy Protection
Novamem shall treat all personal data relating to the Customer confidentially and in line with applicable data privacy laws. BY PLACING ORDERS, THE CUSTOMER CONSENTS TO THE STORAGE AND FORWARDING OF PERSONAL DATA FOR THE PURPOSE OF CREDIT REVIEW, COLLECTION OF DEBTS AND NOTIFICATIONS UNDER ANY APPLICABLE LAWS AND REGULATIONS. UPON REQUEST, NOVAMEM SHALL INFORM THE CUSTOMER OF THE CONSEQUENCES OF A REFUSAL OF CONSENT. For further information on how Novamem processes personal data, please refer to the applicable current version of Novamem’s Data Privacy Statement available at Novamem’s website (novamem.com/data-privacy-statement).
16. Notices
Notices and other communications hereby required or contemplated shall only be effective if delivered in writing to the Party for whom intended at its designated „Invoice Address“ either by (i) personal delivery, (ii) postage prepaid, return receipt requested, registered or certified mail, (iii) internationally recognized overnight courier (such as DHL, FedEx, or TNT, UPS), or (iv) facsimile with a confirmation copy sent simultaneously by any of the other methods described above. Notice by registered or certified mail shall be effective on the date officially recorded as delivered to the intended recipient by return receipt or equivalent, and in the absence of such record of delivery, the effective date shall be presumed to have been the fifth (5th) business day after deposit in the mail. Notices delivered in person or sent by courier shall be effective on the date of personal delivery. Notices delivered by facsimile shall be deemed to be effective on the date sent. Notice not given in writing shall be effective only if acknowledged in writing by a duly authorized representative of the Party to whom it was given.
17. Refusal
Novamem has the right to refuse orders without providing any justification.
18. Miscellaneous
18.1 If any provision of these GTCs is held to be invalid or unenforceable for any reason, such provision shall be adjusted rather than voided, if possible, in order to achieve the intent of the Parties to the fullest extent possible; under no circumstances shall the provision in question be replaced by the Customer’s general terms and conditions.
18.2 The Customer may not transfer or assign its contract with Novamem or any rights or obligations thereunder without the prior written consent of Novamem. Novamem may transfer or assign the contract with the Customer and/or any rights and obligations thereunder to any third party without the Customer’s consent.
18.3 Amendments and supplements to these GTCs and/or any agreement concluded on the basis of these GTCs, as well as any and all collateral agreements must be in writing and signed by Novamem in order to be binding. This shall also apply to any waiver of this written form requirement.
18.4 The place of performance for the Customer’s payment obligations and for Novamem’s services shall be Zurich, Switzerland. The place of performance for Novamem’s obligation to deliver shall be Novamem’s relevant dispatch warehouse in Switzerland.
18.5 The contractual relationship between Novamem and the Customer, including these GTCs, shall be governed by the substantive laws of Switzerland, excluding its rules on conflict of laws and excluding international treaties (in particular excluding the Vienna Convention on the International Sale of Goods dated 11 April 1980 (CISG)).
18.6 The courts of Zurich, Switzerland (venue: Zurich 1), shall have exclusive jurisdiction with respect to any disputes arising indirectly or directly from any contractual relationship between Novamem and the Customer based on these GTCs.