General Terms and Conditions of Business of IPRIS AG
These general terms and conditions of business (hereinafter referred to as "General Terms of Business") apply to all services and work (hereinafter referred to as "Services") performed by IPRIS AG (hereinafter referred to as "IPRIS") in relation to intellectual property rights (hereinafter referred to as "IPRs") to its clients (hereinafter referred to as "Client(s)").
These General Terms of Business apply to all Services performed by IPRIS.
The quotations are the exclusive property of IPRIS. The Client may only use the quotation for its evaluation of the Services offered by IPRIS and is obliged to refrain from using it for any other purpose. The Client shall maintain confidentiality of the information contained therein as well as of the oral and written information received prior to the quotation as part of IPRIS' preparatory work in connection with the quotation.
The quotation shall be binding for a period of 30 days from the date of the quotation, unless a shorter or longer period is stated in the quotation. The quotation may be made orally or in writing. Orders to IPRIS must be issued in writing, unless otherwise agreed, and shall be confirmed in writing by IPRIS.
In these General Terms of Business the term "in writing" shall mean any form of communication between the Client and IPRIS e.g. delivered personally, mailed by ordinary or registered mail or by courier service, or mailed electronically or sent by facsimile, or electronically through IPRIS’ web-based on-line portal data system especially implemented for the payment of IPR annuity fees (hereinafter referred to as “IPRIS Client Portal”), as the case may be.
Different or additional terms and conditions, including the general terms of purchase of the Client shall only apply to the extent agreed in writing between IPRIS and the Client.
No amendments or changes to the General Terms of Business shall be effective unless made in writing. If, for any reason, a provision of the General Terms of Business becomes invalid, the validity of the remaining provisions will not be affected.
2. Scope of Services
The scope of Services is exclusively defined in the written order confirmation of IPRIS. Amendments to orders shall be notified to IPRIS in writing but will not have any binding effect unless and to the extent agreed in writing by IPRIS. In such event, IPRIS reserves the right to review the commercial conditions and the terms of delivery.
In case IPRIS is rendering services regarding the payment of IPR renewal fees, the Service includes the set-up, monitoring and payment of renewal fees for the Client’s IPRs (hereinafter referred to as “Renewal Service”).
3. Quality of Services and Information
IPRIS will perform the Services in a timely, professional and workmanlike manner. Except as otherwise explicitly specified in any order, IPRIS shall be entitled to perform the Services as it deems appropriate in its sole discretion. The results and reports generated by IPRIS in connection with the Services are intended for the use and interpretation by experts. All information, results and reports delivered by IPRIS are exclusively designated for the Client.
IPRIS shall keep the Client informed of the progress of the Services under the respective orders, at the times and in the manner specified in the order. In case of material adverse events, IPRIS will inform the Client as soon as practicable. If prompt notification is not possible or instructions from the Client are not obtained in a timely manner and a delay in taking action might have adverse effects, IPRIS may take such action that is in the presumed best interest of the Client.
In case of the Renewal Service the following applies:
Initial Set-up of the Renewal Service: For each single patent, trade mark, utility model, design (hereafter referred to as a “Single IPR”) the Client mandates IPRIS to perform the Renewal Service, the Client will provide IPRIS with an electronic data file containing the information per Single IPR as specified by IPRIS. IPRIS will review the data received, check for plausibility and feed it into the IPRIS Client Portal. The Client shall then review and confirm in writing that such data as displayed in the IPRIS Client Portal is accurate, correct and complete. IPRIS’ obligation to make renewal payments will only start after such confirmation has been received for all Client’s IPRs or parts thereof as mutually agreed in writing. Despite IPRIS reviewing the data from the Client, the Client is and remains solely responsible for the accuracy, correctness and completeness of all information provided to IPRIS as requested by IPRIS.
Operating Process of the Renewal Service: The day-to-day handling and management of Client IPRs data and information is processed via IPRIS’ Client Portal. IPRIS will display via the IPRIS Client Portal all IPRs with renewal data such as renewal years, renewal dates and renewal costs for all listed single IPRs of the Client. IPRIS will only take any action in making any renewal payments for any Client single IPRs if IPRIS has been given clear and unambiguous instructions by the Client directly through the IPRIS Client Portal to render specific Services. The Client must action such instructions through the IPRIS Client Portal at least two weeks before the renewal date of a single IPR is due. If instructions are received by IPRIS less than two weeks before the renewal date is due, IPRIS will use reasonable commercial efforts to pay the renewal fee on time, however, IPRIS does not guarantee that such efforts are successful and shall in no circumstances incur any liability if its efforts fail. The respective efforts will be compensated by a special surplus fee to be agreed upon. In case of no or ambiguous instructions, IPRIS is entitled – but not obliged – to take reasonable and adequate action to protect Client’s interest at IPRIS’ discretion.
Changes of Renewal Services: The parties may at all times agree to change or amend the list of IPRs for which IPRIS is rendering the Renewal Services. Such changes or amendments shall be made by the Client providing IPRIS with an electronic data file containing the information per Single IPR. IPRIS will review the data received and check for plausibility and feed it into the IPRIS Client Portal. The Client shall then review and confirm that such data as displayed in the IPRIS Client Portal is accurate, correct and complete. Despite IPRIS reviewing the data from the Client, the Client is and remains solely responsible for the accuracy, correctness and completeness of the information provided to IPRIS.
4. Obligations of the Client
The Client is responsible for providing IPRIS with all required and updated information and data IPRIS needs to carry out the Services. Said information and data must be clear, correct and complete. IPRIS shall have no obligation to verify the correctness, accuracy, consistency and unambiguity of the information and data.
IPRIS will proceed with the information and data received from the Client in accordance with the order and shall confirm the intended actions in the order confirmation. The Client shall check carefully the order confirmation and shall inform IPRIS immediately upon receipt thereof if the order confirmation is not correct.
IPRIS shall not be liable for any damages which are the result of IPRIS' use of wrong, incomplete or inaccurate information or data contained in the order confirmation.
If the Client wishes IPRIS to integrate its data into the IPRIS Client Portal, the Client is obliged to provide the data in the format requested by IPRIS. IPRIS shall in any case not be liable for any damages as a result of the set up and operation of an interface to the Client's program for the administration of IPRs.
5. Services subject to due dates and/or deadlines by law or of authorities
For certain Services, IPRIS is responsible to meet due dates and/or deadlines set by law and/or competent authorities (hereinafter referred to as "Official Deadlines") such as for instance the payment of fees to authorities. In general, the Official Deadlines cannot be extended, except in special circumstances on a case by case basis and subject to supplement charges and extra efforts.
Orders by Clients that are time critical must be placed with IPRIS by the due dates and/or deadlines which IPRIS has determined in order to meet the Official Deadlines. If the Client has placed an order later than the deadline set by IPRIS, IPRIS will use reasonable commercial efforts to meet the Official Deadline in time or to obtain an extension of the Official Deadline, however, IPRIS does not guarantee that such efforts are successful and IPRIS shall under no circumstances incur any liability if its efforts fail. IPRIS’ efforts will be compensated by a special surplus fee reasonably determined by IPRIS.
6. Prices and Payments
The prices for the Services shall be specified in the orders. In the event of no such specifications or in the event of standard Services, the prices contained in the current price lists shall apply. The prices are net and exclusive of VAT. An additional charge will be added for all expenses and disbursements incurred by IPRIS at the request of or by agreement with the Client or which are reasonably necessary to carry out the Services as specified in the orders.
Client shall pay the invoice, without any deductions or off-sets with counterclaims, not later than 30 days after the date of IPRIS’ respective invoice by wire transfer or electronic fund transfer to the credit and account of IPRIS as provided in writing by IPRIS in an invoice or otherwise. After 30 days IPRIS will add an interest rate of 5% on the outstanding amount. All bank transfer fees and charges levied by the Client’s bank on payments made by the Client to IPRIS shall be paid by the Client.
IPRIS is entitled to request monthly or quarterly prepayments.
IPRIS may increase the prices for its Services at any time for any reason, provided such increases are communicated in writing. Price increase do not apply to orders confirmed and received from the Clients based on quotations which IPRIS issued prior to the price increases unless the price increases are the result of short notice increases of government or administrative fees payable to the authorities.
Prices for Renewal Service for Single IPR (hereinafter referred as “Renewal Costs”) will be displayed to the Client through the IPRIS Client Portal at the earliest 6 months before the official payment due date for such Single IPR. The displayed Renewal Costs are subject to daily changes due to currency exchange fluctuations, changes of the official fees or any third party costs including bank transfer charges. After Client has instructed IPRIS to pay the renewal fee, the Renewal Costs will only be adjusted in case of material changes of those components of the Renewal Costs which are beyond IPRIS control.
The Client is aware of and accepts the fact that IPRIS may have to pay fees in currencies other than the agreed currency and agrees that IPRIS will convert such fees from foreign currency into the currency of the invoice by applying current exchange rates with a hedging fee.
In case of late instruction by the Client to IPRIS to pay a fee i.e. less than two weeks before such a payment is due, or instruction in the grace period, any surplus charges levied by the patent office or third parties and special services to be rendered by IPRIS will be added.
The Client recognizes and agrees that IPRIS may or may be obliged to subcontract any or all of the Services unless otherwise explicitly specified in any order, subject to such subcontractors being bound by similar obligations of confidentiality and provided that such subcontractors' quality standards are comparable to those of IPRIS. IPRIS shall not be liable for the acts and omissions of any subcontractors selected in accordance with the General Terms of Business. In no event shall IPRIS be liable for the negligence of its subcontractors in the performance of their services under any order. All references to IPRIS are automatically extended to include such subcontractors as appropriate.
8. Terms of delivery / Completion of Services
The Services shall be provided at the date agreed or at the payment due dates or deadlines of the official patent offices. If no such date or deadline exists or has been agreed, the Services will be rendered within a reasonable time period. If IPRIS informs the Client that it is unable to render the Services within the agreed date or deadline, the Client shall be entitled to cancel the order; in such case the Client is not entitled to claim any damages. The delivery lead time shall begin when the Client has delivered all necessary information and documents to IPRIS . The delivery lead time shall be extended by an appropriate time period if the Client subsequently changes the information and documents required to process the order.
9. Storage and Archiving
The Client shall be responsible for storing and archiving the results and reports of the Services upon their delivery to the Client whereby IPRIS will also archive one copy thereof for reference purposes. Unless otherwise agreed in the order, IPRIS shall archive the working documents and raw data used to carry out the Services for a period of ten (10) years upon completion of the Services.
Unless otherwise agreed in the order, the transport and delivery of information and documents shall be at the risk and expense of the Client. This shall apply to the information to be provided by the Client to IPRIS for the performance of the Services and/or to the delivery by IPRIS of the results of the Services. The transport and delivery may be made by electronic mail, facsimile, post or courier. The costs are charged in addition to the price contained in the order and are included in the invoice amount or are separately invoiced. IPRIS shall not be liable for missing documents or incorrect and late delivery of the documents due to the fault of the post or courier. IPRIS warrants due care in the selection of the post or courier.
An order may only be cancelled or terminated to the extent and in the manner provided for in such order or by mutual consent. If any order is cancelled or terminated, the Client shall pay the Services rendered by IPRIS prior to the cancellation or termination at IPRIS’ standard hourly or daily rates and shall compensate IPRIS for any charges payable to authorities and for all other costs and expenses incurred as a result of such cancellation or termination.
IPRIS and the Client acknowledge that in connection with the order or the performance of the Services hereunder, either party may receive from the other party certain information which is proprietary to the disclosing party and which the disclosing party desires to protect from public disclosure ("Confidential Information"). The term "Confidential Information" shall include any business information, trade secret, proprietary and confidential information and materials, whether written or oral, including without limitation, any applications for any patent, trademark, design right or copyright, any knowledge, formulation, technology, know-how, concept, proposal, methodology, analysis, confidential methods, procedures and techniques, invention, devices or products or other data and any information designated as "confidential" by either party.
It is agreed that the above obligation shall not apply to any "Confidential Information" which:
- can be shown by written evidence and competent proof to have been known to the receiving party prior to disclosure by the disclosing party;
- is in the public domain at the time of disclosure or after the disclosure enters into the public domain by publication or otherwise through no fault of the receiving party;
- subsequently becomes available to the receiving party from any legitimate source without obligation of confidentiality or non use or is disclosed to the receiving party by a third party having the lawful right to make such disclosures;
- is developed by the receiving party independently of the Confidential Information received from the disclosing party;
- is approved for release by written authorization by the disclosing party.
- IPRIS and the Client agree to retain in confidence, during a period of five (5) years after receipt of such Confidential Information, all Confidential Information disclosed to it by or on behalf of the other party, and without the written consent of the disclosing party, not to use any Confidential Information for any purpose other than the purposes set forth in the General Terms of Business and/or orders. The receiving party shall obtain no right of any kind in the Confidential Information other than the right to use it as specified above and the Confidential Information shall be and remain the property of the disclosing party. Except as authorized by the disclosing party in writing the receiving party shall not make, keep or take any note or copy of documents, papers or data submitted to it by the disclosing party, nor make, keep or take any extracts therefrom. If so requested by the disclosing party in writing, the receiving party shall return or destroy the Confidential Information. However, one archival copy may be retained by the receiving party to determine its obligations hereunder.
IPRIS shall be responsible for carrying out the Services with due care in a professional, workmanlike manner pursuant to these General Terms of Business and in accordance with the terms and conditions agreed in the specific orders. The Client undertakes to notify IPRIS of any breach committed by IPRIS of its obligations, representations and warranties relating to the Services in writing within 14 days of receipt of the Services.. In the event of latent deficiencies, the Client shall notify IPRIS as soon as the respective breach is discovered. Claims made later than two years after the breach has occurred shall be time-barred. If a breach is capable of being cured or remedied in a cost-effective manner, IPRIS shall have the right and obligation to do so within a reasonable period. If IPRIS fails to do so on time or to an acceptable standard, the Client's sole remedy shall be a reduction in the price.
IPRIS excludes any liability for damages caused by work performed by or under the responsibility of any of the third party trade mark attorneys, patent attorneys or lawyers mandated by IPRIS, or damages relating to such work that may be attributed to IPRIS , unless the Client demonstrates that the damages it has suffered have been caused by gross negligence or intention of IPRIS.
IPRIS’s total liability whether in contract, in tort, or otherwise, shall be limited to the amount of CHF 1 (one) million or equivalent in other currencies.
Neither IPRIS nor the Client shall be liable for any special, indirect, incidental or consequential damages including loss of use, lost profit or lost production. Additionally, neither IPRIS nor the Client shall be liable to the other or to any person for damages of a punitive nature.
Except for the warranties set forth in article 13. first subparagraph above, IPRIS makes no other warranties, either express or implied, with respect to the Services performed by IPRIS or any subcontractors in connection with the General Terms of Business and/or any orders. Any and all warranties including without limitation warranties of merchantability or fitness for any particular purpose, are expressly excluded and disclaimed. With respect to orders no suit or other proceeding may be brought for an alleged breach of warranty of IPRIS set forth herein more than twelve months after completion of the Services.
14. Force Majeure
In the event of Force Majeure, IPRIS shall notify the Client immediately, indicating the circumstances. "Force Majeure" is defined as strike, fire, industrial dispute, civil commotion, acts of war or terrorism, natural disaster and any situation which can be shown to have materially affected IPRIS' ability to undertake and complete the Services as agreed in the orders. Force Majeure shall entitle both IPRIS and the Client to withdraw from an order for Services but in any event, the Client undertakes to pay IPRIS for the Services already completed. IPRIS will assist the Client to the best of its ability to place orders for Services elsewhere. IPRIS shall not be liable for the damages or consequences of any delay in completion of delivery of the Services as a result of Force Majeure.
All taxes levied on account of any payment made by the Client to IPRIS (other than taxes on income, gains or profits levied against IPRIS by a competent tax authority) will be the responsibility of, and shall be paid and borne by the Client.
All payments by the Client shall be made in full without any deduction or withholding whatsoever and free and clear of and without and deduction or withholding for or on account of any taxes, except to the extent that any such deduction or withholding is required by law in effect at the time of payment. Prior to making the first payment to IPRIS, the Client shall inform IPRIS of potential tax withholding duties and provide all relevant information and reasonable support to IPRIS in the preparation of any filing that is necessary to reduce withholding at source.
These General Terms and Conditions contain the entire agreement between the Client and IPRIS. No amendments or changes to these General Terms of Business shall be effective unless made in writing and specifically agreed by IPRIS. If, for any reason, a provision of these General Terms of Business becomes invalid, the remaining provisions will not be affected.
17. Governing Law and Jurisdiction
The General Terms and Conditions as well as the orders shall be governed by substantive Swiss law without giving effect to the principles of conflict of laws thereof. The United Nations Convention for the International Sale of Goods (1980) shall not apply.
Any dispute, controversy or claim arising out of or relating to these General Terms of Business or any order including but not limited to the execution, performance or termination thereof which the parties have not been able to settle amicably shall be submitted to the exclusive jurisdiction of the ordinary courts of Basel-Stadt, Switzerland.