1. GENERAL
1.1 These Terms and Conditions (“Terms”) apply to all Quotations and Agreements of Optics11 Life BV registered with the chamber of commerce under number 90256832 and its affiliates (“Optics11 Life”) with its (potential) customer (“Customer”) regarding the sale and supply of products (“Products” or “Product”) and the provision of services (for example installation, training, repair, upgrades, and software updates (the “Services”)). These Terms apply to the exclusion of terms and conditions of Customer in whatever form. In the event of any contradiction, inconsistency or addition not expressly accepted in writing by Optics11 Life, the Terms shall be deemed to supersede any contradictory, inconsistent or additional terms stated in any document prepared or sent by or on behalf of Customer.
These Conditions are stipulated for the benefit of Optics11 Life, its affiliated companies, its directors, and employees, as well as third parties engaged by Optics11 Life.
1.2 In case of an explicit contradiction between an order confirmation and the Terms and Conditions, the provisions of the order confirmation shall prevail.
2. ORDERS
2.1 The acceptance or confirmation of an order will supersede all prior communications and constitute a
complete and binding contract between Customer and Optics11 Life, which contract cannot be modified
or canceled without the written agreement of both parties.
2.2 The Terms form part of the agreement established after express confirmation in writing of an order or
after acceptance of an offer issued by Optics11 Life.
3. PRICES AND CONDITIONS OF PAYMENT
3.1 Proposals, offers, or quotations are subject to acceptance only during the period stated thereon. If no
period is stated, the acceptance period shall be 30 days.
3.2 Unless otherwise stipulated in the order confirmation, prices are in Euro excluding VAT and excluding all taxes, transport costs, custom duties or charges or any costs or charges that could not be foreseen at the time of conclusion of the agreement and are beyond the reasonable control of Optics11 Life.
3.3 All invoices shall be issued upon shipment of the product(s) to the Customer. Payments shall be made to the designated Optics11 Life bank account within thirty (30) days from the invoice date (“Payment Term”).
Payments are deemed to have been made at the time at which it is received or credited to the Optics11 Life bank account.
3.4 If Customer fails to pay an amount by the Due Date, Customer shall be in default (in Dutch: in verzuim) without a notice of default being required. In that event, and without prejudice to all other rights and remedies available to Optics11 Life, Optics11 Life shall be entitled to:
- charge Customer interest on all amounts due and unpaid as of the Due Date of each unpaid invoice at a rate of 1.5% per month or 5% above 1 month Euribor if that is higher, from the due date until payment is received.
- suspend or terminate serviced if payments are not received within 45 days after the due date
3.5 Optics11 Life is entitled to cancel discounts, rebate schemes or payment arrangements without warning in whole or in part with retroactive effect as soon as a (partial) payment or prepayment is overdue.
3.6 Customer may only set off payments against claims insofar as they have been expressly recognized by
Optics11 Life or result from a court judgment rendered between Optics11 Life and Customer which cannot be appealed. Suspension of payment by Customer is never allowed.
3.7 Optics11 Life reserves the right to modify its fees and charges at any time, effective for any subsequent renewal term. Customers will be notified of any pricing changes at least 60 days prior to the start of the renewal term.
3.8 Any disputed charges must be reported to Optics11 Life in writing within 30 days from the date of the
invoice. Undisputed portions of the invoice must be paid according to the payment terms.
3.9 Optics11 Life reserves the right to suspend or terminate services if the customer’s account becomes
delinquent, without notice and without liability to Optics11 Life.
3.10 The customer agrees to pay all reasonable costs and expenses incurred by Optics11 Life in collecting any overdue amounts, including but not limited to attorneys’ fees and court costs.
4. DELIVERY
4.1 All sales shall be made in accordance with the incoterms agreed upon in writing. If no incoterm is agreed upon, EXW (Incoterms 2020) Optics11 Life shall apply.
4.2 Delivery times and delivery dates in offers or order confirmations and/or other written correspondence are approximate only and not firm. If a deadline for delivery has been expressly agreed upon in writing and it is exceeded, Customer must give Optics11 Life written notice of default giving Optics11 Life the opportunity to rectify the delivery within a reasonable period of at least 15 working days (Mon-Fri excluding official holidays).
4.3 If installation is not part of the offer Customer is obliged to check the Products upon delivery for transport damage or any other form of damage. Customer must give written notice of visible defects within five working days after arrival of the Products, by including a specific description of the nature of the defect.
4.4 Optics11 Life may arrange the installation of Products and will issue an acceptance certificate upon successful completion. The Products shall be deemed accepted in accordance with all specifications upon signature of this certificate by an on-site employee or other person working for the Customer. If no acceptance certificate is signed, Products will be deemed accepted if (i) Customer puts the Product into service, or (ii) Customer fails to send a written notice outlining defects or nonconformity to agreed specifications within five working days of commencement of installation or ten working days after delivery, whichever is earlier.
4.5 Customer shall provide a safe and suitable place for installation of Products in accordance with Optics11 Life’s instructions. Failure to comply with Optics11 Life’s instructions regarding the site where the Client intends to install and use the Products shall void all warranties and in such case the Customer waives all claims regarding conformity to specifications and functionality.
4.6 Title to delivered goods (“Retained Goods”) is retained by Optics11 Life until all payment obligations of Customer towards Optics11 Life have been fulfilled. If law applicable in the country the retained Goods are located does not permit reservation of title to the Retained Goods, but permits reservation of similar rights, Optics11 Life shall be entitled to assert such rights. Customer commits to supporting all measures taken to protect the title to or security interests in the Retained Goods.
5. SOFTWARE
5.1 Optics11 Life supplies the Products with embedded software and other software as specified in the quotation or offer. Optics11 Life only grants Customer the non-exclusive right to use the embedded software, other software, applications, and associated documentation (collectively referred to as the “Software”) solely for the operation of delivered hardware for its intended purpose.
5.2 The right of use of Software is limited to the agreed period. In the absence of such an agreement, the right of use is equal to the period of use of the relevant hardware. In particular, the right to use the Software shall not include the right to translate, lease, lend, sublicense, distribute or publicly reproduce the Software or make it available, online or by other means, to third parties outside Customer and its affiliates.
5.3 The right to use the Software shall not include the right to reproduce the Software unless such reproduction is necessary for the operation of the hardware intended or supplied therefore or to produce a backup copy. Unless provided otherwise by mandatory law or written contractual regulations, Customer shall not be authorized to modify, decompile, disassemble or otherwise reverse-engineer the Software, whether in whole or in part, to acquire the source code. Customer shall not remove, alter or obscure any proprietary notices from any part of the Software or documentation.
5.4 Customer may only transfer the right to use the Software to third parties together with the hardware customer purchased from Optics11 Life along with the Software or for which the Software from Optics11 Life is intended. In that case, Customer will impose the above obligations and restrictions on the third party.
5.5 All other rights to the Software shall remain with Optics11 Life. Software is copyrighted, and Optics11Life and its licensors retain exclusive right, title and interest in and to the Software and all copies, translations, modifications, improvements, enhancements, updates or portions thereof, including all Intellectual Property Rights.
5.6 Optics11 Life will provide Software updates if explicitly agreed or on a voluntary basis. In the latter case, Optics11 Life is always entitled to terminate the provision of updates or to charge a fee for doing so.
5.7 Optics11 Life does not warrant that (i) the Software will meet Customer’s requirements, (ii) the Software
will operate in combination with other hardware, software, systems or data not provided by Optics11 Life (except as expressly specified in the documentation provided with the Product), (iii) the operation of the Software will be uninterrupted or error-free, or (iv) all Software errors will be corrected. Exceptions to the foregoing may apply based on service agreements or specific warranties outside of these Terms.
5.8 Insofar as Software is provided to Customer for which Optics11 Life owns only a derived utilization right and which is not open-source software (such as third-party software), the terms of use agreed between Optics11 Life and its licensor shall – also regarding the relationship between Optics11 Life and Customer – apply additionally and prior-ranking to the provisions of this Section. If and to the extent that opensource software is provided to Customer, the terms of use governing such open-source software shall apply prior-ranking to the provisions of this Section.
6. WARRANTY AND DEFECTIVE PRODUCTS
6.1 Optics11 Life warrants that Products will be free of material defects in material and workmanship for a period of one year commencing from the date of acceptance Book 7 of the Dutch Civil Code shall not apply.
6.2 If a delivered Product is or becomes defective or lacks a guaranteed characteristic during the warranty period, Optics11 Life shall be entitled, at its option and as its sole obligation, to repair, replace or remove the Product. In case of removal, Optics11 Life shall credit the purchase price minus 5% for each full month between delivery and notice of the defect to Optics11 Life, unless the product is replaced within 8 weeks. The obligation to honor a warranty claim arises only if the defect or nonconformity existed prior to delivery or is the direct result of faults attributable to Optics11 Life. Unless agreed otherwise, claims for a defective or noncompliant Products can only be made within the warranty period.
6.3 The warranty automatically lapse if (i) the Customer uses, modifies, maintains or repairs the Product with parts, products or services other than those supplied or approved by Optics11 Life, (ii) the Customer causes repairs, updates or other work to be performed on the Product by its own or unauthorized personnel or third parties without Optics11 Life’s consent, or (iii) the Product is resold or otherwise transferred, made available for use, leased or loaned to a third party.
6.4 Warranty shall not apply if a defect or nonconformity is the result in whole or in part of (i) circumstances attributable to the Customer, such as transportation, accidents, failure to use proper operational and safety procedures, including neglecting to adhere to documented operational instructions and safety guidelines provided by Optics11 Life or specified in the product manual, improper use, installation by non-certified personnel, deviating from recommended application guidelines, or neglecting scheduled maintenance tasks as outlined in the product documentation , or (ii) external forces such as flooding, leakage, fire, explosions, power surges, power failures or defective electrical installations.
6.5 Specifically excluded from this warranty is all standalone computer and data storage equipment not manufactured by Optics11 Life. Such equipment will carry only the original manufacturer’s warranty.
6.6 In case of repair and replacement Optics11 Life shall use commercially reasonable efforts to repair or replace the Products within 8 weeks of arrival of the defective Product. Optics11 Life warrants to the Customer that replacement Products will be new or of equal functional quality and warranted for the remaining portion of the original warranty or 90 days, whichever is longer. Repairs will be performed, at Optics11 Life’s option, at either Optics11 Life’s facility or Customer’s business location. For repairs performed at Optics11 Life’s facility, Customer must contact Optics11 Life in advance for authorization to return Products and must follow Optics11 Life’s delivery instructions.
6.7 Software is considered to have a defect only if Customer can prove that there are reproducible deviations from the specifications. A defect shall not be deemed to exist, however, if it does not manifest itself in the latest version of the Software supplied to Customer and the use thereof by Customer can reasonably be required. Furthermore, Customer will not have any claims based on defects if it is based on any of the following circumstances: (i) incompatibility of the Software with the data processing environment used by Customer, (ii) use of the Software together with software supplied by third parties unless this is expressly provided for in the documentation of Optics11 Life or is otherwise permitted by Optics11 Life in writing, or (iii) improper maintenance of the Software by Customer or third parties not approved by Optics11 Life.
7. END OF LIFE
7.1 Optics11 Life reserves the right to permanently discontinue support for a Product (“End of Life”). In the event of an End of Life designation, Optics11 Life shall provide Customer with no less than 2 years prior written notice. During the notice period, Optics11 Life shall continue to provide support in accordance with any applicable support agreement. After the End of Life date, Optics11 Life shall use commercially reasonable efforts to repair Products of discontinued generations on a best-effort basis, including availability of spare parts, for up to 5 years after the End of Life date, subject to spare parts availability. No warranty or service level commitments shall apply beyond the original warranty period.
8. OWNERSHIP OF REPLACED AND PROPRIETARY PARTS
8.1 Components that are standard (Off-the-Shelf), commercially available, and not modified, customized, or programmed by Optics11 Life (“Standard Components”) become the property of the Customer once installed and paid for. When such Standard Components are replaced during service or repair, the removed components shall remain the property of the Customer unless otherwise agreed in writing.
8.2 Proprietary and Custom components that are proprietary to, or custom-developed by Optics11 Life, including any embedded software or firmware (“Proprietary Components”), remain the property of Optics11 Life. When a Proprietary Component is replaced, removed, or exchanged during maintenance, repair, or upgrade activities, the Customer shall return the removed Proprietary Component to Optics11 Life. The Customer shall not retain, use, copy, or otherwise access any Proprietary Component or its embedded content unless expressly authorized in writing by Optics11 Life.
8.3 The Customer acknowledges that Proprietary Components may contain designs, software, or other intellectual property belonging to Optics11 Life. No ownership, license, or rights in such intellectual property are transferred to the Customer through sale, repair, or replacement of equipment.
8.4 Any unauthorized retention, use, or duplication of Proprietary Components or embedded software shall constitute a material breach of these Terms and Conditions and may result in legal action or termination of support and warranty coverage.
9. INTELLECTUAL PROPERTY
9.1 All intellectual property rights, Software, and know-how in and to the Products as well as all
documentation for the Products and all trademarks used in connection with the Products shall remain
or vest in, and be the exclusive property of, Optics11 Life or its affiliates or third-party licensors.
9.2 Customer shall have a limited, non-exclusive, non-transferable, and non-sublicensable right to use the
intellectual property rights and Software that may subsist in the Products only for the purpose of and to
the extent necessary for using the Products. This right shall only be in force for as long as Buyer is entitled
to use and uses the Products in accordance with the agreement and these Terms. Buyer shall not reverse
engineer, disassemble, decompose or analyze for the purposes of finding out the composition or
functionality of the Products or the Software contained in the Products.
9.3 Buyer shall not modify or remove or conceal Optics11 Life’ and its subcontractors’ trademarks or other
intellectual property markings or business name, logos or other markings affixed to the Products
(“Optics11 Life Trademark”).
9.4 If a third party claims that the Products or Software infringes that party’s patent or copyright or other
intellectual property right (“Infringement Claim”), Customer shall: (a) promptly notify Optics11 Life in
writing of the Infringement Claim, and (b) allow Optics11 Life to fully control, and cooperate with
Optics11 Life in, the defense, possible litigation and any related settlement negotiations and (c) not
acknowledge any infringements. Failure to comply with the foregoing shall void any claim by Customer
with respect to an Infringement Claim. If an Infringement Claim is made or appears likely, Optics11 Life
may, at its option, obtain a license so that Customer may continue to use the Product, modify the Product
or replace it with a product that is functionally equivalent. If Optics11 Life is unable to do either of these
things within a reasonable time, Customer may at its sole option rescind the contract or demand a
reasonable reduction in the purchase price.
9.5 Optics11 Life shall not be liable for any Infringement Claim that result from (i) Customer’s modification of a Product or use thereof other than in its specified operating environment, (ii) the combination, operation, or use of a Product with products provided by Customer or other manufacturers or other products not provided by Optics11 Life as a system, or (iii) actions for which Customer is responsible. Any claims from Customer for compensation shall be limited as set forth in Section 9.1 of these Terms.
10. LIABILITY
10.1 Other than pursuant to the warranty obligations set forth above, the liability of Optics11 Life for direct and indirect damages is excluded, except insofar (i) as a direct result of intent or gross negligence on the part of Optics11 Life’s management, (ii) within the scope of article 6:185 of the Dutch Civil Code (Products Liability).
10.2 If Optics11 Life is liable under 8.1 above, the liability, to the extent not contrary to mandatory law, shall be limited to an amount equal to 50% of the purchase price of the Product that caused the damage for which the Customer claims compensation. If the damage cannot be linked to a specific delivery or occurred in connection with Services, the limit shall be equal to 50% of the amount excluding VAT paid by Customer in the preceding 12 months before the damage first became apparent. Liability for consequential damage is excluded to the maximum extent. Examples of consequential damage in this respect are loss of profit, loss of production, interruption of business, contractual claims of third parties, lost usage, lost opportunities, credit costs, and loss of data, information and/or software.
10.3 Customer shall indemnify Optics11 Life for all third-party claims related to Customer’s use of the Products.
10.4 Legal actions (in Dutch: Rechtsvorderingen) in connection with the failure of Optics11 Life to fulfill its
obligations, including legal actions to recover damages resulting from a defect in a Product and or related
to the failure of a Product to meet the guaranteed specifications within the warranty period, may only
be brought within 12 months after Customer became aware of the damage or noncompliance or could
reasonably have become aware of it.
11. FORCE MAJEURE
11.1 Optics11 Life shall not be liable for failure or delay in performing any of its obligations to Customer due to circumstances beyond its reasonable control of it or its (sub) suppliers, such as strikes, lockouts, labor difficulties, riots, inability or difficulty in obtaining or procuring supplies, labor or transportation, epidemics, fires, storms, floods, earthquakes, explosions, accidents, interference by civil or military or supranational authorities, whether legal or de facto, acts of the public enemy, war, rebellion, insurrection, sabotage, embargoes, orders given priority by any public authority or any other cause beyond the reasonable control of Optics11 Life.
11.2 If the force majeure situation lasts longer than three months or as soon as it is reasonable to assume that it will last longer than three months, Optics11 Life has the right to terminate all or part of the agreement without becoming liable for damages.
12. CONFIDENTIAL INFORMATION AND PERSONAL DATA
12.1 Parties shall observe confidentiality in respect of all information, specifications, business information and know-how concerning and provided by the other party. Upon request of a party, the other party shall return this information or destroy it within fourteen days.
12.2 Both parties agree to comply with the provisions of the General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679) with respect to any personal data that may be processed or transferred in connection with this Agreement.
13. EXPORT AND ASSIGNMENT
13.1 Optics11 Life and Customer are required to comply to applicable laws and regulations concerning export/import control and sanctions, as enforced or administered by regulatory bodies such as the European Union, the United States of America, or any other relevant jurisdiction. This includes, but is not limited to, compliance with EU financial sanctions, the EU export control regime, the U.S. Treasury Department Office of Foreign Assets Control list of U.S. Specially Designated Nationals, the U.S. Department of Commerce Denied Person’s List, Entity List, or the U.S. Commerce Department’s Export Administration Regulations (EAR) (collectively “Trade Compliance Regulations”).
13.2 Optics11 Life shall not be liable to Customer for any loss, damage or costs relating to (i) changes in Trade Compliance Regulations, (ii) any delay or failure to obtain authorization, or (iii) any other direct or indirect limitation or delay due to Trade Compliance Regulations.
13.3 Customer shall indemnify Optics11 Life against all claims from third parties and related costs and fines in connection with noncompliance with Trade Compliance Regulations or other export regulations.
13.4 Customer shall not assign the contract or any part thereof without the prior written consent of Optics11 Life. Optics11 Life may assign the contract (or part thereof) and/or engage sub-contractors, agents and others in the performance of the Contract without restriction.
14. SEVERABILITY
14.1 If one of any of the provisions of these General Terms or the agreement should, for whatever reason, be void or invalid, this shall not affect the validity of the other provisions and parties undertake to replace the invalid regulation with a valid one which comes closest to the economic intent of the invalid regulation.
15. GOVERNING LAW
15.1 These Terms shall be governed by and construed in accordance with the laws of the Netherlands, without giving effect to any choice of law or conflict of law provisions. Any dispute arising out of or in connection to any agreement between Optics11 Life and Customer and/or these Terms (including any disputes relating to any non-contractual obligations arising out of or in connection with any agreement between Optics11 Life and Customer and these Terms) are subject to the exclusive jurisdiction of the court of Amsterdam, the Netherlands. The United Nations Convention of Contracts for the International Sale of Goods shall not apply.
CHAPTER 2: DATA ANALYSIS SOFTWARE (PROVA)
1. SCOPE AND DEFINITIONS
1.1 This chapter applies to Prova, the standalone data analysis software developed and supplied by Optics11 Life that enables users to import, visualize and process laboratory data, including data from Optics11 Life’s instruments as well as data from other sources (“Prova”). Prova may be purchased and used independently of any hardware Products supplied by Optics11 Life. To the extent Prova is licensed under a separate License Agreement, the provisions of such License Agreement shall prevail in the event of any inconsistency with this chapter. These Terms apply to Prova and all services relating thereto. Except to the extent expressly provided otherwise in this Chapter or in the applicable License Agreement, the provisions of these Terms, including those relating to orders, pricing and payment, intellectual property, limitation of liability, force majeure, confidentiality, export compliance, assignment, severability and governing law, shall apply equally to Prova and all services relating thereto.
2. DELIVERY AND TITLE
2.1 Prova is supplied as software and is not a physical Product. The delivery provisions of these Terms applicable to physical Products, including provisions relating to incoterms, transport damage, installation certificates and retention of title, do not apply to Prova.
2.2 Delivery of Prova is deemed to occur at the moment Optics11 Life makes Prova available to Customer, whether by providing download instructions, access credentials, a license key or any other means of access agreed between the parties. Risk of loss or damage to physical media, if any, passes to Customer upon delivery in accordance with the agreed incoterm.
2.3 Title to Prova does not transfer to Customer. Customer receives solely the license rights set out in the License Agreement. In the absence of a License Agreement, Customer receives the limited right of use as set out in clause 16 of this chapter and these Terms.
2.4 Optics11 Life shall use commercially reasonable efforts to make Prova available within the timeframe agreed in the order confirmation. Delivery timelines for Prova are estimates only and Optics11 Life shall not be liable for delays in making Prova available, provided that if access has not been made available within thirty (30) days of the agreed delivery date, Customer may cancel the order for Prova in writing and receive a full refund of any amounts paid for Prova.
3. PERMITTED USE
3.1 Customer shall use Prova solely for its own internal research, scientific and laboratory purposes, in accordance with the License Agreement and applicable law. Customer shall not: (i) use Prova to provide data processing services to third parties on a commercial basis (such as bureau or outsourcing services) without first obtaining a commercial license for the entire duration of such services; (ii) use Prova in any manner that violates applicable ethical standards or regulatory requirements governing research on human biological material; or (iii) use Prova, or information obtained through reverse engineering, decompilation, benchmarking, analysis or other examination of Prova, for the purpose of developing a competing software product, service or to identify, extract, reproduce, derive, train, validate or otherwise exploit any underlying algorithms, models, analytical methods, workflows, know-how, source code, trade secrets or other proprietary technology embodied in Prova. Customer shall be solely responsible for determining whether Prova is suitable for Customer’s intended use and for complying with all applicable laws, regulations, ethical requirements, industry standards and internal procedures.
4. CUSTOMER DATA
4.1 As between the parties, Customer retains full ownership of all data it inputs into Prova (“Input Data”) and the scientific conclusions, interpretations and findings that Customer derives from use of Prova (together with Input Data, “Customer Data”). For the avoidance of doubt, Optics11 Life retains exclusive ownership of all intellectual property rights in Prova, including the software, algorithms, models, analytical methods and workflows used to generate any outputs, irrespective of the nature or origin of the data processed. The inclusion of outputs in Customer Data does not confer upon Customer any rights in or to the underlying technology of Prova. Customer hereby grants Optics11 Life a non-exclusive, worldwide, royalty-free right during the term of use of Prova to process Customer Data solely to the extent necessary to develop, improve, test and validate Prova. Optics11 Life may collect anonymized and aggregated technical and usage data relating to the operation of Prova for the purpose of product improvement and development. Such data shall not contain Customer Data or any information capable of identifying Customer or its research subjects.
5. DATA RETENTION AND SECURITY
5.1 Customer shall be solely responsible for maintaining adequate backups of Customer Data and Outputs. Customer is responsible for implementing and maintaining adequate security measures to protect Customer Data processed through Prova, including appropriate access controls and protection against unauthorized access or disclosure. Unless expressly agreed otherwise in writing, Optics11 Life shall have no obligation to archive, retain, recover or restore Customer Data or Outputs. Optics11 Life shall implement commercially reasonable technical and organizational measures to protect the integrity and security of Prova.
6. ANALYTICAL RESULTS AND VALIDATION
6.1 Customer acknowledges that outputs generated by Prova, including analyses, classifications, interpretations, recommendations, predictions, reports, visualizations and other results (“Outputs”), are generated automatically based on algorithms, models, assumptions, parameters and data supplied to Prova. Outputs do not constitute scientific, medical, clinical, regulatory or professional advice. Such Outputs are intended solely as research-support information and shall not replace independent scientific review, analysis or professional judgment. Customer shall independently review, verify and validate all Outputs before relying upon them for scientific, research, regulatory, commercial, operational or other purposes. Customer remains solely responsible for all decisions, conclusions, publications, submissions, actions and omissions based on or related to any Outputs.
7. REGULATORY COMPLIANCE
7.1 Prova is intended solely for research use and is not a certified medical device or in vitro diagnostic product or clinical decision-making tool unless expressly stated otherwise by Optics11 Life in writing. Customer is solely responsible for assessing whether Prova is suitable for its intended use and for ensuring that its use complies with all applicable regulatory requirements in the jurisdictions where it operates, including requirements applicable to research involving human cells or biological material. Optics11 Life makes no representation that Outputs satisfy any particular scientific, clinical or regulatory standard.
8. WARRANTY EXCLUSIONS
8.1 Without prejudice to the general warranty provisions of these Terms, Optics11 Life does not warrant that: (a) Outputs are accurate, complete or error-free; (b) Outputs are scientifically correct, reproducible or suitable for publication; (c) Outputs satisfy regulatory requirements or are suitable for regulatory submissions; (d) Prova will identify all relevant biological, cellular or experimental characteristics; (e) Prova will produce any particular research outcome or result; (f) all errors, inaccuracies or limitations in Prova or Outputs will be detected or corrected; (g) Prova will operate without interruption or error; (h) Prova will be compatible with all third-party hardware, operating systems or software environments used by Customer, except as expressly stated in the technical documentation; or (i) Prova is fit for any particular purpose not expressly agreed in writing.
9. MODIFICATIONS AND UPDATES
9.1 Optics11 Life may from time to time modify, update, replace, enhance, discontinue or otherwise change Prova, including its functionality, user interface, algorithms, models, analytical methodologies, data processing methods and output formats. Customer acknowledges that such modifications may affect the nature, content, format, consistency, reproducibility or accuracy of Outputs. Optics11 Life does not warrant that any particular feature, functionality, algorithm, model, interface or output format will remain available. Unless otherwise agreed in the License Agreement, Customer is responsible for installing updates within a reasonable time. Optics11 Life reserves the right to discontinue support for earlier versions of Prova, subject to reasonable prior notice to Customer. Optics11 Life does not warrant a specific level of availability or response time unless agreed separately in a support or service agreement. Notwithstanding the foregoing, Optics11 Life shall use commercially reasonable efforts to ensure that modifications to Prova do not materially reduce the core functionality of Prova or materially deprive Customer of the rights expressly granted under the applicable License Agreement.
10. INTELLECTUAL PROPERTY
10.1 All intellectual property rights in Prova, including all algorithms, models, workflows, analytical methods, software architecture, know-how, improvements, modifications and derivative works, shall remain vested in Optics11 Life or its licensors. Unless prohibited by applicable law or agreed otherwise in writing, Optics11 Life may use anonymized and aggregated information derived from Customer’s use of Prova for the purposes of developing, improving, validating, supporting and commercializing its products and services, provided that such information cannot reasonably be used to identify Customer or any individual.
11. THIRD-PARTY AND OPEN-SOURCE COMPONENTS
11.1 Prova may include, rely upon or interact with third-party software, open-source components, databases, cloud services, future artificial intelligence services or other third-party components. The terms applicable to such components apply in addition to, and where relevant in priority to, this chapter, consistent with the provisions of the Software chapter of these Terms. Optics11 Life shall not be responsible for the availability, performance, accuracy, security or continued operation of such third-party components. Upon written request, Optics11 Life will provide Customer with a list of material third-party components included in Prova. Optics11 Life may replace third-party components with equivalent alternatives at its discretion.
12. LIMITATION OF LIABILITY
12.1 Without prejudice to the general limitation of liability provisions in Chapter 8 of these Terms, Optics11 Life shall not be liable for: (i) loss, inaccuracy or corruption of Customer Data except to the extent caused by wilful misconduct or gross negligence of Optics11 Life’s management; (ii) any loss arising from Customer’s reliance on Outputs; (iii) any loss arising from Customer’s non-compliance with applicable regulatory requirements in connection with its use of Prova; or (iv) publication delays, publication retractions, failed experiments, failed studies, loss of research opportunities, loss of grants, loss of funding opportunities or loss of intellectual property opportunities arising from the use of Prova or Outputs. Where damage cannot be linked to a specific delivery of Prova, the liability cap in Chapter 8 shall be calculated on the basis of the amounts paid by Customer for Prova in the twelve months preceding the event giving rise to the claim.
13. INDEMNITY
13.1 Customer shall indemnify and hold harmless Optics11 Life, its affiliates, directors, employees and subcontractors against all third-party claims, losses, damages, liabilities, costs and expenses (including reasonable legal fees) arising out of or relating to: (a) Customer’s use of Prova; (b) Customer’s interpretation, publication or use of Outputs; (c) Customer’s breach of applicable laws, regulations or ethical requirements; or (d) Customer’s breach of any obligation under this Chapter
14. DISCONTINUATION
14.1 Optics11 Life reserves the right to permanently discontinue Prova as a product (“End of Life”). In the event of an End of Life, Optics11 Life shall provide Customer with not less than twelve (12) months’ prior written notice. During the notice period, Optics11 Life shall continue to provide support in accordance with any applicable support agreement. Prior to the End of Life date, Customer shall be entitled to export all Customer Data and Outputs in a commonly used, machine-readable format. Optics11 Life shall not be liable for any loss, damage or costs arising from an End of Life carried out in accordance with this clause. Obligations of confidentiality and data protection in respect of Customer Data shall survive the End of Life.
