Terms and Conditions

General Terms and Conditions of Sale,  7. November 2023 

General Terms and Conditions of Sale of InSphero AG, Schlieren, Switzerland (incl. Affiliates) 

1. Scope

These general terms and conditions of sale of Products and Services (GTCS) shall apply to all Agreements concluded between InSphero and the Customer (each as defined below); (referred to herein each, as a Party, and together as the Parties) and override any conflicting or additional terms and conditions contained in any purchase order or similar documents provided by the Customer to InSphero concerning the purchase or supply of Products or Services. Omission by InSphero to explicitly object or reject terms and conditions provided by the Customer will in no event be construed as an acceptance of any of these terms and conditions of the Customer by InSphero. 

InSphero shall be entitled to modify its GTCS any time with immediate effect. 

 

2. Definitions

2.1 Affiliate(s) shall mean any organization which is directly or indirectly controlled by, or controls, or is under common control with the relevant Party and control will mean the ownership as to more than fifty percent (50 %) of a person or the power to direct decisions of a person, including, without limitation, the power to direct management and policies of a person, whether by reason of ownership or by contract. 

2.2 Agreement means any offer, quotation, study proposal or plan, purchase order, work order, blanket order, or contract order including any amendment thereof established and confirmed by InSphero and the Customer under which InSphero offers or supplies Products or Services to the Customer subject to these GTCS. The Customer acknowledges to have read and understood these GTCS when establishing the Agreement. 

2.3 Background IP shall mean Intellectual Property existing at the date prior to the performance of the Services or developed independently of the activities under the relevant Agreement that is under the control of either Party and that is reasonably necessary, relevant or otherwise useful for performing the Services. For the purposes of this definition "control" means ownership and/or the right to grant access or licenses to third parties. For the avoidance of doubt, InSphero Technology shall be considered as InSphero Background IP, and Customer Material shall be considered as Customer Background IP. 

2.4 Confidential Information shall mean any data, documents, materials or information of any type whatsoever, in whatever form or medium, whether or not marked as “confidential” and/or “proprietary”. Such information shall include, but shall not be limited to scientific information, information on research and development projects and manufacturing, processes, data, ideas and techniques in the field of cell culturing and microfluidic engineering, and commercial, financial or market information, trade secrets, Intellectual Property or know-how. For the avoidance of doubt, InSphero Background IP, InSphero Technology, InSphero Improvements including, but not limited to, any information comprised in the Agreement except for information related to Customer Material, Customer Background IP, and Customer Confidential Information shall be considered Confidential Information of InSphero, and Customer Background IP, Customer Material, and Customer Results shall be considered as Confidential Information of Customer. 

2.5 Customer shall mean a legal entity which engages InSphero to provide certain Product(s), or Service(s) subject to an Agreement. 

2.6 Customer Material(s) shall mean any and all Customer proprietary material and related information supplied by the Customer to InSphero in connection with the Services including in each case the original proprietary material transferred to InSphero, as well as any progeny, developed therefrom by InSphero during performance of a Service. The Customer retains all right, title and interest in and to the Customer Material. Any other non-proprietary material of the Customer such as commercially available materials provided by the Customer in connection with the Services is not regarded as Customer Material.  

2.7 Customer Results shall mean any and all results, data, specifically but without limitation documentation, inventions, know-how, discoveries, or improvements related material, information, and all other work product directly relating or incorporating Customer Material and generated by InSphero alone or jointly with others during performance of Services, if applicable, but excluding any InSphero Background IP, InSphero Confidential Information, InSphero Technology and InSphero Improvements. Any methods described in Reports delivered by InSphero to the Customer are excluded from the term Customer Results.  

2.8 InSphero means InSphero AG, Schlieren, Switzerland, including all its subsidiaries and Affiliates such as InSphero, Inc. Brunswick ME, USA. 

2.9 InSphero Improvements shall mean any and all results, data, including data and results related to positive and negative controls, materials, modifications, new or improved processes, techniques, methods, formula, new, modified or improved Product(s), endpoints, biomarkers, disease models, microfluidic systems, invention or know-how, discovery or improvement which are generally applicable or which concern InSphero Background IP and/or InSphero Technology, and which are generated or developed during the performance of Services but do not dependent on or incorporate Customer’s Material and Compound Results. 

2.10 InSphero Technology shall mean any and all Products, material, technology, and related information used or proposed to be used by InSphero for the performance of Services, including but not limited to protocols, methods, formula, processes, procedures, techniques, cell culture media, endpoints, biomarkers, formulae, data, software, and any other knowledge each in whatever form related to InSphero’s proprietary 3D-cell-culture-based platforms, microtissue technology, microfluidics systems, 3D-cell-culture-based compound screening or testing technologies, 3D-cell-culture-based assay and disease models, related production, culture, and assessment of such 3D cell culture models, development of disease models, together with any derivatives thereof made by InSphero during the performance of the Services or otherwise. InSphero retains all right, title and interest in and to the InSphero Technology.  

2.11 Intellectual Property shall mean all patents, trademarks, utility certificates and models, inventors’ certificates, copyrights, database rights, designs, domain names, trade secrets, know-how inventions, discoveries, and any other proprietary rights, priority rights, prior user rights and all other rights a like nature in each case whether registered or unregistered and in any jurisdiction. 

2.12 Product(s) shall mean those products described, for example, in brochures or website of InSphero, identified in an offer, quotation, study proposal or plan, purchase order, work order, blanket order, or contract order, and provided by InSphero to the Customer pursuant to these GTCS including any and all InSphero proprietary material and related information such as on InSphero Technology, protocols or procedures applicable to InSphero Products. InSphero may adapt the ordered Products – in its sole discretion – provided such adaption is required by new scientific findings or applicable laws and regulations. 

2.13 Representative(s) shall mean employees, Affiliates, employees of Affiliates, directors, officers, agents, advisors (e.g. attorney, accountants, and auditors), consultants, contractors, subcontractors or representatives, of both parties 

2.14 Report(s) shall mean, where applicable, reports describing Customer Results and provided by InSphero to the Customer at the time points and in the format as agreed in the Agreement. If nothing is specified in the Agreement, the Customer shall receive a report in a format at the discretion of InSphero within a reasonable term after completion of the Services. 

2.15 Service(s) shall mean, services subject to an Agreement, provided by InSphero to the Customer. 

2.16 Specification(s) shall mean with respect to a Service or Product, the qualitative, quantitative, functional and analytical specifications and related materials and components including testing methods and acceptance criteria, each as set out in the Agreement. 

3. Offers and Agreements

3.1 Offers, list prices, information in brochures or on InSphero's website, or other materials of InSphero in relation to its Products and Services are not binding and are without obligation. 

3.2 Any offer is based on the information supplied by the Customer. The Customer cannot derive any rights from an offer that is based on incorrect or incomplete information supplied by the Customer. Any information regarding expected results or performance supplied through the offer of InSphero is indicative and not binding. The Customer accepts that due to the nature of InSphero’s Products or Services, InSphero does not offer a guarantee that a particular result will be achieved.  

3.3 Any offer or quotation or study proposal is valid for five business days and becomes binding only upon establishment of the Agreement.  

3.4 Due to the nature of InSphero’s Products or Services, if the Customer cancels an Agreement the Customer shall pay up to 50% of the total amount indicated in the respective Agreement, the actual amount depending on the time point of cancellation and the amount of work already performed or resources committed by InSphero. 

3.5 If it is required to make an advance payment for a Service according to the Agreement the agreed Services shall only be performed after receipt of the payment by InSphero. 

 

4. Delivery of Products, Customer Material, Customer Results and Reports

General 

4.1 All Products or Services to be delivered or performed by InSphero to the Customer are described in the Agreement. 

4.2 InSphero will make every effort to deliver the Products or to perform the Services with reasonable skill, care and diligence, and in accordance with applicable industry standards. 

4.3 InSphero shall not, under any circumstance, be required to commit any act or omission that is in conflict or incompatible with laws and regulations. 

4.4 A delivery date indicated by InSphero in an Agreement is not binding and is of an indicative nature. The Customer acknowledges that delivery delays, especially due to production shortages, the nature of the Service or Customer Material may occur. InSphero is entitled to make partial shipments of Products or partial delivery of Customer Results. 

4.5 Shipment of Products shall be FCA seller’s premises (FCA, 8952 Schlieren, Incoterms® 2020), unless agreed otherwise in writing. The benefit and the risk of the Products shall pass to the Customer at the time of their leaving the works of InSphero. 

4.6 The Products, Reports or Customer Results supplied by InSphero shall remain InSphero's property, until the entire purchase price and possible additional costs under the Agreement have been paid. 

4.7 The Customer will have ten (10) business days from receipt of the delivery of each, the Report, Customer Results or Products to notify InSphero of a non-conformity with the Specifications. Failure by the Customer to notify InSphero within said time period shall be considered to constitute the Customer’s acceptance of the Report, Customer Results or Products. 

4.8 InSphero shall only be responsible for such non-conformity with the Specifications to the extent existing on or prior to delivery to the Customer. InSphero shall not be responsible for non-compliance caused after the delivery thereof (such as, non-compliance that is caused by the incorrect handling, storage and/or shipment) or for any non-compliance that is caused by the Customer Material, or other consumables, raw materials and/or components delivered by the Customer to InSphero. 

4.9 If, at the time of delivery, the Products or Customer Results do not comply with the Specifications, and such non-compliance is due to InSphero negligence, InSphero will, once only, re-ship Products or re-perform the Services as soon as reasonably practicable, such to be decided in InSphero’s sole discretion, at its own cost, but contingent upon receipt from the Customer of the Customer Material, at the Customer’s costs, in such quantities needed for the re-performance of Services. InSphero shall not be liable for any non-conforming Products or Customer Results after such one time re-shipment or re-performance. Any re-shipment or Products or re-performance of Services by InSphero shall constitute the Customer’s sole and exclusive remedy in relation to such non-conforming Products or Customer Results, respectively. 

Services 

4.10 Import and export controls: The Customer’s attention is drawn to the fact that goods and other deliverables (and possibly the expertise that they contain) may be subject to export or import controls. The Customer is responsible for complying with its relevant export and import control regulations. 

4.11 The Customer shall timely and appropriately ship  to InSphero's address in Switzerland at the Customer’s cost before the agreed start of the Service such an amount of Customer Material in the specific format as agreed in the Agreement that in the opinion of the InSphero is necessary to perform the Service properly and timely as set forth in the Agreement. A delay by the Customer in providing Customer Material beyond the timeline set forth in the Agreement, may delay the completion date of the Service. Any additional costs and/or damage caused by a delay in the provision of the Services as result of the Customer's failure to timely provide InSphero with the requested Customer Material will be borne by the Customer. 

4.12 The Customer shall provide all necessary safety and other relevant information to InSphero such as any hazards, safety concerns or potential risks connected to any of the Customer Material including instructions on handling, use, transport, storage, and disposal of Customer Materials of which the Customer is or in accordance with the current state of scientific knowledge and applicable laws and regulations should be aware of.  

4.13 The Customer warrants that it is entitled to provide InSphero with Customer Material and that Customer Material does not comprise any personal data. Further, Customer warrants that the Customer Material is fit for the purpose of the Service and that all relevant information is provided. In case of breach of this warranty, InSphero is  not obliged to perform or re-perform the Service. 

4.14 The Customer shall, at all times, keep a back-up of the Customer Material provided to InSphero. 

4.15 The Customer Material shall be used by InSphero only for the performance of the Service under the Agreement, and not for any other study or purpose without the prior written consent of the Customer. The Customer Material shall at all times remain the property of the Customer. 

4.16 InSphero will be entitled to engage third parties as a subcontractor in the execution of the Services under an Agreement without being obliged to notify the Customer. 

4.17 Upon completion of the Service, InSphero shall submit to the Customer  
(i) a Report on the Customer Results and any other deliverables as defined in the in the Agreement, and  
(ii) at the Customer’s option, InSphero shall either return or discard at the Customer's expense any remaining amount of the Customer Material in accordance with applicable laws and regulations. In the absence of the Customer’s instructions, within two (2) weeks after provision of the Report, InSphero shall be entitled to discard any remaining Customer Material eight (8) weeks after completion of the Services unless otherwise specifically agreed to under the Agreement.  

4.18 Unless otherwise explicitly agreed to in writing by both Parties, InSphero shall not be responsible to provide to the Customer any other deliverables than those specifically agreed in the Agreement. 

4.19 If the Service consists solely of generation of information and data, respective Customer Results will be delivered through email or postal services, in accordance with the Agreement. 

5. Prices / Payment / Complaints

General 

5.1 Unless otherwise agreed in the Agreement, prices are exclusive packaging, transportation costs, VAT, sales tax and any duties. If, in consultation with the Customer, deviations from the Agreement are made, the costs deriving from such deviations are invoiced to the Customer against the prices and fees that apply at such time. 

5.2 Unless otherwise agreed in the Agreement, the terms of payment shall be net payment within 30 days after receipt of the invoice. All payments to InSphero shall be made in the currency and to the bank account indicated in the Agreement or the invoice of InSphero without any deduction for cash discount, expenses, taxes, levies, fees, duties and the like, unless explicitly agreed otherwise. Invoices shall be paid without payment intermediaries like Ariba or Scientist.com. If payment intermediaries are used and fees for InSphero incurred, InSphero will recharge these fees plus an additional 2% processing fee on the total invoice amount. 

5.3 If payment is not made when due, InSphero shall be entitled to charge interest on the amount outstanding at any time from the invoice date at a rate that corresponds to 10% per year. In addition, the Customer shall pay InSphero collection expenses in the amount of CHF 40.- each for the first and any subsequent payment reminders. All costs and expenses incurred by InSphero with respect to the collection of overdue payments (including, without limitation, reasonable attorney fees, expert fees, court costs and other expenses of litigation) are at the expense of the Customer. InSphero reserves the right to claim further damages. 

5.4 The Customer is not entitled to withhold due payments or to set them off against counter claims, except such counter claims were acknowledged in writing by InSphero or awarded by a legally binding and enforceable judgment. 

5.5 If any portion of an invoice is disputed, then the Customer shall pay the undisputed amounts and the Parties shall use good faith efforts to reconcile the disputed amount as soon as practicable. 

5.6 If the Products or Services for a prepaid amount of Products or Services are not consumed by the term of the respective Agreement, the remaining amount will be assumed by InSphero, and the order will be closed. If the prepaid amount is surpassed in the term of the contract order, InSphero will invoice the amount exceeding the contract order to the Customer at InSphero’s regular list prices.  

Services 

5.7 The Customer shall pay to InSphero the amount stated in the Agreement, in accordance with the following payment schedule unless otherwise agreed in writing in the Agreement: 

- fifty percent (50%) of the total amount upon establishment of the Agreement, 

- fifty percent (50%) of the total amount upon the receipt of the Customer Results by the Customer. 

5.8 If the Agreement states an advance payment, the execution of the Service by InSphero shall the earliest only start upon receipt of the full amount of the advance payment by InSphero. 

5.9 Any Services which are beyond the scope of an Agreement will be charged separately to the Customer based on InSphero’s hourly rate schedule. 

5.10 The Customer will reimburse InSphero for reasonable, necessary, and documented expenses directly incurred in connection with the Services within thirty (30) days of receipt of an itemized statement with, whenever possible, receipts or other evidence of expenses. 

Complaints 

5.11 The Customer shall inspect any Product, Report, Customer Results, invoice, or any other deliverable to be delivered under the Agreement immediately after receipt and must report any errors and file a complaint  within ten (10) business days after receipt, in writing in a detailed and comprehensible manner, accompanied with sound evidence of the error. 

5.12 The Customer's failure to give notice to InSphero of any claim within the ten (10) business days shall constitute an acceptance of the Product, the Report, the Customer Results, invoice, or any other deliverable and a waiver by the Customer of all claims with respect thereto.  

5.13 The introduction of a complaint, whatever the cause and even if it is made within the prescribed time limits, does not allow the Customer to delay the payment of an amount that has reached its due date. 

5.14 If InSphero determines that the Customer has filed a legitimate and timely complaint, InSphero will use reasonable efforts to fix the error within a reasonable term or to replace the item of complaint at InSphero's own expense to the extent that InSphero is reasonably able to. If InSphero provides such item subject to the complaint again in accordance with the Agreement, InSphero shall have no further liability.  

6. Representations, Warranty, and Disclaimers

6.1 Each Party represents and warrants to the other that (i) it is a company or corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, and (ii) it has legal power and authority to execute the Agreement including these GTCS. 

6.2 Precondition for any warranty claim of the Customer is the Customer's full compliance with current scientific standards and applicable laws and regulations. 

6.3 All Services and Products are delivered by InSphero "as is" without warranty of any kind except those stated under these GTCS. InSphero explicitly excludes all implied warranties of title, non-infringement, merchantability and fitness for a particular purpose. 

Products 

6.4 InSphero warrants that the Products are of customary quality with respect to all material aspects. Any warranties of InSphero are limited to the Specifications in the Agreement when used under normal conditions in the Customer’s laboratory for the period indicated as the maximum experimental window in the Agreement. 

6.5 The Customer warrants to use Products solely for in-house laboratory research use only and not to (i) commercially use the Products apart from research purposes, (ii) reverse engineer, analyse, disassemble, reproduce biological and chemical entities, modify, transfer, distribute, market and/or re-sell, in whole  or in part Products, (iii) use Products for diagnostic or therapeutic or other clinical purposes, and (iv) use Products in any applications to humans  or animals.  

Services 

6.6 InSphero represents and warrants that it shall provide the Services in compliance with applicable laws, rules and regulations applicable to it in the country where it will perform the Services. 

6.7 InSphero specifically disclaims any warranty, guarantee or representation that Services will: 
(i) be successful, or achieve any goal or specification described in the Agreement, or any other document of InSphero or that any Customer Result is safe or effective, or otherwise, except that InSphero shall perform Services with reasonable due care consistent with InSphero standard operating procedures;  
(ii) result in the delivery of any Customer Results meeting any specification if the Customer requires that InSphero performs Services using the Customer’s procedures or protocols, provided that InSphero performs the Services with reasonable due care consistent with the Customer’s procedures or protocols;  
(iii) not, nor will the InSphero Background IP, InSphero Technology or InSphero Improvements used for the performance of the Services, infringe any patent and/or Intellectual Property rights of third parties. 

6.8 Except for the representations and warranties explicitly granted by InSphero in these GTCS, InSphero makes no other warranties or representations of any kind, express or implied, including, without limitation, any warranty of merchantability or fitness for any particular purpose, or any other matter with respect to the Services. 

7. Liability and Indemnity

7.1 The Customer shall indemnify, protect, defend and hold harmless InSphero (including its Representatives, successors and assigns) from and against any and all third party losses, claims, damages, or liabilities, to the extend caused by, arising from or in connection with  
(i) any use, including but not limited to any clinical application, or making or sale or transfer by the Customer to any third party of any Products, Customer Results, or any other deliverable, material or information provided by InSphero to the Customer or of any product developed by the Customer based thereupon, 
(ii) any use, transportation or storage by InSphero of Customer Material, Customer Confidential Information or Customer Background IP or any other material or information supplied by the Customer to InSphero, 
(iii) the transportation, storage or use Products by the Customer after delivery thereof by InSphero to Customer; 
(iv) the material breach of these GTCS by the Customer;  
(v) the Customer’s negligence or wilful misconduct; 
(vi) infringement of any third party Intellectual Property right as a result of the Services performed, or use of the Products or Customer Results by the Customer.  

7.2 Except for its gross negligence and wilful misconduct or its material breach of these GTCS, InSphero waives any liability for damages or loss of the Customer resulting from the Services, the transport, storge or use of Products, Customer Results or any other deliverable to the Customer. 

7.3 Each Party acknowledges that its breach of these GTCS may cause irreparable harm to the other Party, and that remedies at law may be inadequate. Therefore, in addition to any other remedies available at law or in equity, the non-breaching Party may obtain specific performance or injunctive relief in the event of any breach or attempted breach of these GTCS. In case of a legal dispute the successful plaintiff shall be entitled to claim from the other Party reasonable compensation for its costs and expenses related to the legal dispute. 

7.4 InSphero shall under no circumstances be liable for direct or indirect damage or loss of any kind, including any contract penalties which the Customer may have to pay to a third party, nor for the the Customer's operating loss, time loss, lost supplies or similar losses. 

7.5 In any case the liability of InSphero shall not exceed the total amount of the remuneration paid by the Customer to InSphero within the last 12 months preceding the liability event. Any further amount constitutes damages which are not foreseeable at the time of establishing an Agreement.  

7.6 Each Party assumes any and all risks of personal injury and property damage attributable to the negligent acts or omissions of that Party and its Representatives. 

7.7 Each Parties shall maintain at their own cost insurance to cover their respective liabilities under these GTCS and shall upon request of the other Party provide such documentary evidence of said insurance. 

7.8 InSphero shall not be liable for failing or delayed fulfilment of supplies of Products or Services if the cause is force majeure, such as fire, government intervention or intervention by other public authorities, strike, lockout, export and/or import bans, vandalism, currency restrictions, delayed and/or defective supplies from subcontractors or any other cause beyond the control of InSphero. 

8. Intellectual Property

8.1 The Customer is granted a non-exclusive and non-transferable right and limited license under InSphero Background IP to use the Products in the Customer facilities in accordance with these GTCS, and the applicable Specifications. 

8.2 The Customer herewith grants InSphero the right to use Customer Materials, Customer Confidential Information and Customer Background IP for the purpose of the performance of the Services under these GTCS and the Agreement. 

8.3 Customer Results and any Intellectual Property included in the Customer Results, and Intellectual Property rights arising therefrom, in each case to the extent severable from InSphero Background IP and InSphero Improvements, shall be the exclusive property of the Customer after full payment of the fees in accordance with the Agreement. All ownership rights relating to the Customer Results shall solely vest in and are hereby assigned to the Customer who shall be free to use and modify the Customer Results in any manner whatsoever without restriction. The Customer will be entitled to file relevant patent applications or other Intellectual Property rights applications based on such Customer Results in its own name.  

8.4 The Customer is solely responsible for determining whether it has all Intellectual Property Rights that are necessary for the intended use of the Product or Customer Results and whether it may be required to obtain any additional Intellectual Property Rights from a third party. 

8.5 InSphero shall have the right to use Customer Results and data arising from the provision of the Services for its internal research purposes. Further, InSphero may use Customer Results in blinded or anonymized form for any purpose, provided however, that neither the Customer nor the Customer Material is identified or identifiable. Any other use of Customer Results by InSphero shall require prior written consent by the Customer. 

8.6 Nothing in these GTCS grants to the Customer any rights to InSphero Background IP, InSphero Confidential Information, InSphero Technology or InSphero Improvements, except as explicitly provided for in these GTCS. 

8.7 Solely to the extent that InSphero Background IP, InSphero Confidential Information, InSphero Technology or InSphero Improvements is necessary for the use of the Customer Results in accordance with these GTCS, InSphero hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable (except with the prior written consent of InSphero) and fully paid-up license for a time period during which the relevant Intellectual Property is protected under the laws of the relevant jurisdiction, to such InSphero Background IP solely for such use.  

8.8 The use by the Customer of any InSphero Background IP, InSphero Confidential Information InSphero Technology or InSphero Improvements for any other purpose shall require the prior written consent of InSphero and be subject to the entering into of a license agreement between InSphero and the Customer. Unless agreed otherwise between the Parties, such license shall be non-exclusive and royalty-bearing.  

8.9 All intangible rights pertaining to any materials, information, Products or Services including, but not limited to, InSphero Confidential Information, InSphero Technology, InSphero Improvements, InSphero Background IP provided by InSphero such as but not limited to trademarks, drawings, drafts, technical specifications, Specifications shall remain InSphero's property and may not be in whole or in part copied or passed on to a third party without the prior written acceptance of InSphero.  

8.10 All InSphero Improvements made either by InSphero or together with the Customer in the performance of Services and any Intellectual Property rights arising therefrom are the exclusive property of InSphero. All ownership rights relating to InSphero Improvements shall solely vest in InSphero and are hereby assigned to InSphero who shall be free to use and modify InSphero Improvements in any manner whatsoever without restriction and for no consideration. The Customer shall ensure the transfer of rights as necessary free of charge. InSphero will be entitled to file relevant patent applications or other Intellectual Property rights applications based on such InSphero Improvements in its own name and the resulting rights and registrations shall be owned by the InSphero. 

8.11 InSphero and the Customer shall have any inventors execute documents and shall take other actions as may be reasonably requested by the other Party, including assisting the other Party in the preparation, and signing of any patent application documents, at any time to evidence or perfect the foregoing assignment of Customer Results and InSphero Improvements, as applicable and for no further consideration.  

9. Restrictions on Use

9.1 The Customer must ensure it has all approvals, permits and licenses for its intended use of the Products and that is uses the Products in strict compliance with applicable laws, rules and regulations. 

9.2 Unless otherwise agreed by InSphero in writing, the Customer will not use and will not permit any third party to use any Products (or components thereof) in any commercial application (including contract research services), and will not have the right to sublicense, resell, lease, assign or otherwise transfer any Product (or any component thereof) to any third party. 

10. Publication / Publicity

10.1 Each Party may mention the other Party as a cooperation partner in relevant (i) scientific publications, presentations or speeches and (ii) marketing documents, such as brochures and websites, only upon prior written consent of the other Party. 

10.2 The Customer shall not without InSphero’s written consent, issue any press release or make any public statement, including any opinion or technical review, about InSphero, the Products or Services, nor will the Customer publicly disclose any images of Products without the prior written consent of InSphero.  

11. Confidentiality

11.1 Each Party agrees to respect and keep strictly Confidential Information belonging to the other Party and to undertake to respect confidentiality as regards to the negotiations and execution of the Agreement. 

11.2 The Parties shall not use such Confidential Information for any other purpose than negotiations and execution of the Agreement and shall only disclose this Confidential Information to its Representatives on a strict need-to-know basis. The Parties shall assure that their Representatives are bound by the same obligations of confidentiality described hereunder. In the event Confidential Information is disclosed to unauthorized third parties, the Party receiving Confidential Information shall so notify the disclosing Party immediately upon discovery of the disclosure. 

11.3 The confidentiality obligations between the Parties shall not apply to Confidential Information which  
(i) is or becomes part of the public domain without fault on the part of the receiving Party;  
(ii) was already known by the receiving Party, other than as a result of the receiving Party’s breach of any legal obligation;  
(iii) was disclosed to the public by the mutual agreement of the Parties; or 
(iv) becomes known to the receiving Party on a non-confidential basis through disclosure by sources other than the disclosing Party, and having the legal right to disclose such Confidential Information; or (iv) is independently developed by the receiving Party, as can be shown by written  records, without  reference to or reliance upon the disclosing Party’s Confidential Information. 

11.4 If the receiving Party is required by a governmental authority or by order of a court of competent jurisdiction to disclose any of the disclosing Party’s Confidential Information, such disclosure shall constitute neither a violation of these GTCS nor a cause of liability for any damage resulting from disclosure of the Confidential Information, provided that the receiving Party gives the disclosing Party prompt written notice thereof and that the receiving Party will take all reasonable and lawful actions to avoid or minimize the degree of such disclosure. The receiving Party will cooperate reasonably with the disclosing Party in any efforts to seek a protective order. 

11.5 Each Party agrees not to file a patent application or any other Intellectual Property title including any Confidential Information belonging to the other Party without the prior written authorization of said Party. 

11.6 Neither Party shall disclose to any third party the fact, that it received Confidential Information and that the Parties are or have been negotiating a possible Agreement.  

11.7 The Customer may not disclose any prices or other financial terms of an Agreement to any third party without the prior written consent of InSphero, except to the extent required by applicable law. 

11.8 Each Party will, at written request of the other Party, return or destroy all Confidential Information of the other party upon termination or completion of the Agreement, except that the receiving Party may retain one archival copy and shall not be obliged to destroy any computer files created during automatic system back-up that are subsequently stored securely by it. 

 

12. Term, Termination and Notice

12.1 These GTCS will be effective as of the signature date of the Agreement, and unless otherwise specified in these GTCS shall be valid until completion of the Services or delivery of the Products unless earlier terminated in accordance with this Section 12. 

12.2 The obligations under these GTCS which by their nature are intended to survive expiration or termination of the Agreement shall survive. 

12.3 Each Party may terminate the Agreement for  
(i) material breach by the other Party, provided that the Party has given the other Party written notice of the breach and at least thirty (30) days to cure the breach; or 
(ii) the filing or institution of bankruptcy, liquidation or receivership proceedings of the other Party or in the event a receiver or custodian is appointed for the other Party's business, or if its business is discontinued. 

12.4 InSphero may terminate the Agreement in the event of any unforeseen technical or material difficulties occur regarding the delivery of the Services or Products, which cannot be addressed without significant changes to the timelines, fees and/or prices under the Agreement. 

12.5 The Customer may terminate the Agreement at any time with thirty (30) days’ written notice to InSphero for any reason. This termination shall be implemented as rapidly as possible after InSphero's receipt of the written notice of termination. 

12.6 In the event of termination by either Party prior to the completion of the delivery of the Service or Products, InSphero shall invoice the Customer for the costs of the delivery of the Products or Service performed by InSphero in accordance with the Agreement prior to the effective date of termination. If the cost exceeds the payment already made by the Customer before termination, the Customer shall make an additional payment to InSphero to compensate for the difference. The Customer shall further reimburse InSphero all cost which include any out-of-pocket cost, including for non-cancellable commitments to third parties and personnel costs that will be reasonably incurred by InSphero after termination of the Agreement. InSphero will use commercially reasonable efforts to mitigate such costs. 

12.7 The exercise of termination right according to this Sections 12 does not exempt the Party in default from its obligations hereunder accrued prior to the effective date of termination or its liabilities for damages incurred because of early termination or because of breach of the Agreement including these GTCS. 

12.8 Any notice shall be in writing, addressed and delivered or mailed, postage prepaid, to the other Party at such address as such other Party has elected in the Agreement. If no address for notices has been elected, the Parties elect as addresses their respective head offices as indicated in the Accepted Order. 

13. 13. Miscellaneous

13.1 These GTCS together with the Agreement constitute the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the Parties hereto with respect to the subject matter hereof and no Party shall be liable or bound to the other in any other manner, except as set forth herein. 

13.2 Unless otherwise agreed in writing in the Agreement, the Agreement shall prevail over these GTCS, and these GTCS shall prevail over any terms and conditions stated on the Customer’s order form or on its terms and conditions of purchasing. 

13.3 No provision of these GTCS, including the Agreement, may be amended, modified or otherwise changed, other than in writing duly executed by an authorized representative of both Parties. 

13.4 InSphero shall be an independent contractor and the team of scientists performing the Services shall not be regarded as employees of the Customer. InSphero shall not in any way represent itself to be an agent, an employee or a partner of the Customer. InSphero has full power and authority to determine the means, manner and method of performance of the Service. Nothing contained in these GTCS or the Agreement shall be construed as establishing a principal-agent, partnership or joint venture relationship between the Parties. 

13.5 The Customer shall not be entitled to assign or transfer any of the rights or obligations hereunder to a third party except with the prior written consent of InSphero. 

13.6 If, according to the Agreement, the Customer consists of several legal entities, each of these legal entities is and will be jointly and severally liable towards InSphero for performance of the Agreement. 

13.7 InSphero is entitled to assign and transfer any of the rights or obligations hereunder to any of its Affiliates, parent or subsidiary companies, or to a third party that acquires all or substantially all of the business or assets of InSphero (whether following a merger, acquisition, liquidation or for any other reason). These GTCS and the Agreement and the resulting rights and obligations shall be binding on all successors and assignees. 

13.8 If at any time any provision of these GTCS or any part thereof or of the Agreement is or becomes invalid or unenforceable, then neither the validity nor the enforceability of the remaining provisions or the remaining part of the provision shall in any way be affected or impaired thereby. The Parties agree to replace the invalid or unenforceable provision or part thereof by a valid or enforceable provision which shall best reflect the Parties' original intention and shall to the extent possible achieve the same economic result. The same applies mutatis mutandis in case of any gaps. 

13.9 No waiver by a Party of a failure of the other Party to perform any provision of these GTCS or the Agreement shall operate or be construed as a waiver in respect of any other or further failure whether of a similar or different character. 

13.10 In the event that one Party does not exercise its rights following the breach by the other Party of any of the terms or conditions of the GTCS or the Agreement, this shall not be interpreted to be a waiver of the obligations of the said term or condition for the future. 

13.11 The GTCS shall in all respects be governed by and construed in accordance with substantive Swiss law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). Any disputes arising out of or in relation with these GTCS including disputes about the validity of the constitution of this Agreement, its legal effects, its modification or dissolution, shall be judged by the ordinary courts of Zurich, Switzerland, the venue being Zurich 1.