IDQ GENERAL TERMS AND CONDITIONS OF SALE
(May 2025)
1. IDQ / IDQ SOLUTIONS
1.1 IDQ means ID Quantique SA with its address at Rue Eugène-Marziano 25, 1227 Les Acacias, Switzerland. IDQ and its Affiliates are suppliers of IDQ Solutions. Affiliate means an entity that, either directly or indirectly, controls, is controlled by, or is under common control with, the relevant party, and “control” means the ability, directly or indirectly, to direct the affairs of another by means of ownership, contract or otherwise.
1.2 IDQ Solutions may include: (i) Hardware, which means hardware products, parts, material, other items or goods and provided by IDQ; (ii) Software, which means software products, including firmware, and all bug fixes, updates, upgrades, new releases, or any other modifications to the Software (Software Releases), and customisations of the Software (if any) provided by IDQ; and (iii) Services, which means maintenance and support services (Support & Maintenance), installation, configuration and other professional services (Professional Services), and training services provided by IDQ.
2. APPLICABILITY OF THESE GENERAL TERMS/INTERPRETATION
2.1 These general terms and conditions of sale (Terms) govern all transactions involving the sale, provision, or licensing of IDQ Solutions between IDQ and the entity acquiring IDQ Solutions from IDQ (Customer). These Terms incorporate the following supplemental terms and conditions (collectively, Supplemental Terms) that may be applicable depending on the IDQ Solutions being acquired:
2.1.1 the End-User License Agreement available at [EULA];
2.1.2 Solution-specific licensing and subscription terms are available at [Clarion KX Licensing Terms];
2.1.3 License transfer policy available at [License Transfer Policy];
2.1.4 Support & Maintenance Terms available at [Support & Maintenance Terms].
The Solution-Specific Licensing and Subscription Terms, License Transfer Policy, and Support & Maintenance Terms are hosted on our partner portal, which is password-protected. Passwords will be provided where the terms are applicable to Customer’s intended purchase order. Customers may contact IDQ directly if they require access to these documents.
2.2 Exclusion of Other Terms. Customer’s and any third party’s general terms and conditions are not applicable unless IDQ has expressly agreed to their applicability in writing.
2.3 Written Form Requirement; Electronic Signatures. Any agreements with Customer must be made in writing and signed by IDQ to be valid. Any changes to an agreement must be in writing and signed, unless these Terms permit a specific provision to be changed upon notice. Customer and IDQ agree that electronic signatures (such as DocuSign) have the same force and effect as manual signatures and meet the written form requirement.
2.4 Interpretation; Definitions. In these Terms: (i) the singular includes the plural and vice versa, (ii) the words ‘include’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms, (iii) headings are included for the convenience of the parties only and shall not affect the interpretation of the Terms. Capitalised terms in these Terms shall have the meaning given throughout these Terms.
3. PURCHASE ORDER AND ACCEPTANCE
3.1 Quotation. IDQ may issue a quotation to supply IDQ Solutions to Customer. If the Customer does not accept IDQ’s quotation within 14 days of receipt thereof, IDQ shall have the right to withdraw the quotation.
3.2 Purchase Order. All purchase orders for IDQ Solutions (PO) are subject to acceptance by IDQ and must be confirmed by IDQ in writing, or if not confirmed in writing, through supplying the IDQ Solutions to the Customer pursuant to the corresponding PO (each, an Order Confirmation or OC). Customer may amend a PO before IDQ issues the Order Confirmation. Any amendments to the PO require Customer to issue a new PO and IDQ to issue a new Order Confirmation.
3.3 Order Confirmation. Each Order Confirmation (OC) shall detail the IDQ Solutions being supplied, any applicable licensing plan or subscription under which IDQ Solutions are supplied, the amounts payable by Customer to IDQ for IDQ Solutions (Charges), delivery dates and locations, and any additional terms of the provision of IDQ Solutions which have been agreed to by IDQ. Such information may be provided in the IDQ’s quotation referenced in the OC.
3.4 Contract. An Order Confirmation creates a binding contract between the Customer and the IDQ entity that issues that Order Confirmation (Contract) consisting of the following documents in descending order of precedence:
3.4.1 the OC and any referenced documents;
3.4.2 the applicable Supplemental Terms and any referenced documents;
3.4.3 these Terms and any referenced documents.
If IDQ does not issue an OC, then the PO is not accepted, and no contract is formed.
3.5 IDQ Selling Entity. The references to IDQ under the Contract will be deemed to refer to the applicable IDQ entity entering into that Contract, and such IDQ entity is solely and exclusively responsible for the delivery, performance, and any claims arising under that Contract.
3.6 Non-Binding Estimates and Materials. Any cost estimates, samples, drawings, or other material provided by IDQ for the purpose of giving an approximate description of IDQ Solutions, are not binding and do not form part of any Contract unless expressly stated by IDQ in the corresponding OC. Marketing and other promotional material relating to IDQ Solutions are illustrative only and do not form part of any Contract.
3.7 Changes to Order Confirmation (OC). IDQ reserves the right to amend the OC if (i) there is a material error or mistake by IDQ in the OC, or (ii) there is a material change in circumstances outside IDQ’s control that adversely impacts IDQ. In that case, IDQ will provide the Customer with the revised OC, including corrected information or revised commercial and technical conditions. The revised OC shall be binding on Customer unless it notifies IDQ in writing within 14 days of the receipt of the revised OC that it does not agree to it.
4. PROVISION OF IDQ SOLUTIONS
4.1 Specifications and Changes. IDQ Solutions are provided in accordance with their written specifications, such as user manuals or service levels. IDQ reserves the right to amend IDQ Solutions if necessary to comply with applicable law including safety standards. If amended after the OC, IDQ shall notify Customer of such amendments.
4.2 No Customisations. IDQ does not modify or customise IDQ Solutions to meet any customer requirements, unless expressly agreed in writing by the Customer and IDQ. Any such modifications or customisations are subject to a separate written agreement between the Customer and IDQ (each, a SoW), that should be appended to or referenced in the corresponding OC.
4.3 Delivery Dates. Any dates provided for delivery of IDQ Solutions are approximate and not guaranteed. Time is not of the essence with respect to delivery. IDQ shall not be liable for any delays caused by events beyond its reasonable control, or due to the Customer’s failure to provide adequate delivery instructions or other information relevant to the supply of IDQ Solutions.
4.4 Acceptance Certificates. Whatever the acceptance process for IDQ Solutions may be, the Customer agrees to sign an acceptance certificate within 5 days of the completion of the relevant acceptance process or, if no process is specified, within 5 days of delivery. If the Customer neither signs the acceptance certificate nor provides written objections specifying any non-conformities within the applicable timeframe, the acceptance certificate will be deemed signed, and the corresponding IDQ Solutions will be deemed accepted.
4.5 End of Life. IDQ Solutions (or their parts) may be discontinued or become unavailable (End of Life). IDQ will use its commercially reasonable efforts to make available Support & Maintenance for IDQ Solutions subject to End of Life.
5. HARDWARE
5.1 IDQ will provide the Hardware as specified in the relevant OC.
5.2 Delivery Locations. IDQ will deliver the Hardware to the location specified in the applicable OC or any alternative location agreed upon the Customer and IDQ. Delivery shall occur after IDQ notifies the Customer that the Hardware is ready for dispatch. Unless otherwise agreed in writing, delivery of the Hardware will be made in accordance with FCA (Free Carrier) Geneva, INCOTERMS 2020, from ID Quantique’s premises in Geneva, Switzerland.
5.3 Risk in Hardware. Risk in the Hardware shall pass to the Customer upon delivery pursuant to clause 5.2. IDQ will provide a delivery note with each shipment or shortly thereafter. The delivery note will include (i) the date of the OC, and all relevant references, (ii) the type and quantity of the Hardware (including any applicable code numbers), (iii) any special storage instructions, and (iv) a list of any items of the Hardware that remain to be delivered. If the Customer is required to return any packaging materials, this must be clearly stated on the delivery note. The Customer must make such packaging materials available for collection at times reasonably requested by IDQ.
5.4 Customer Delays. If IDQ is unable to deliver the Hardware due to the Customer’s failure to provide adequate delivery instructions or fulfil its obligations under clause 8, IDQ may store the Hardware at the Customer’s expense, and the risk in the Hardware shall pass to the Customer upon delivery to storage. Delivery to storage shall constitute the delivery to Customer. If the Customer’s delay exceeds 30 days from the time IDQ makes the Hardware available for delivery, IDQ may, at its discretion, terminate the corresponding Contract, retain any payments received, and dispose of the Hardware at its convenience. The Customer shall indemnify IDQ for all costs incurred due to such delays.
5.5 Inspection and Acceptance Tests. Customer shall inspect the Hardware supplied within 10 days upon delivery pursuant to clause 5.2. If the Contract so requires, the Customer shall test the IDQ Solutions in the agreed-upon manner and issue an acceptance test certificate to IDQ in accordance with clause 4.4.
5.6 Title. Title to the Hardware will pass to the Customer once IDQ has received full payment of the applicable charges in cleared funds. Until title passes, the Customer must (i) take all reasonable care of the Hardware and maintain its condition, (ii) be responsible for any loss or damage to the Hardware not attributable to Hardware itself, (iii) where practicable, clearly identify the Hardware as the property of IDQ, and (iv) provide IDQ with any information regarding the Hardware upon IDQ’s request.
5.7 Repossession. If, before the title to the Hardware passes to the Customer, IDQ becomes aware or reasonably believes that the Customer is or is likely to become subject to any of the events specified in clause 15.1.4, IDQ may (i) require the Customer, at Customer’s expense, to return the Hardware to IDQ or a third party indicated by IDQ and (ii) if the Customer fails to do so, IDQ may enter any premises where the Hardware is located and repossess it.
6. SOFTWARE
6.1 IDQ will provide the Software as specified in the relevant OC.
6.2 Right to Use. Subject to Customer’s compliance with the terms of the Contract (including payment of all applicable Charges to IDQ), IDQ grants the Customer a non-exclusive, non-transferable right to use the Software in the object code format solely for their internal business purposes (not for resale) for the time period and for the territory specified in the OC. The Customer may not reverse engineer, decompile, decrypt, disassemble, alter, modify, make derivative works of the Software, or use it otherwise as permitted under the Contract.
6.3 No High-Risk Use. IDQ does not design, test, or manufacture the Software for use with systems or applications where the use or failure of the systems or applications can reasonably be expected to threaten or result in personal injury, death, or catastrophic loss. Examples include use in nuclear, avionics, navigation, military, medical, life support or other life critical applications. The Customer agrees that IDQ is not liable for any claims or damages arising from such uses.
6.4 EULA. End-users’ use of the Software is subject to the EULA. The Customer must comply and must ensure that any end-user acting through it complies with the EULA. The Customer remains liable for the use of the Software by any person acting through it.
6.5 Solution-Specific Licensing and Subscription Terms. If and as indicated in the relevant OC, the Solution-Specific Licensing and Subscription Terms apply to the use of Software. The Solution-Specific Licensing and Subscription Terms are available at [Clarion KX Licensing Terms].
6.6 Software Delivery. IDQ delivers the Software to the Customer (i) by making it accessible or available for download by the Customer, and (ii) together with the Hardware, in cases where the Software consists of firmware or is pre-installed on the Hardware.
6.7 Software Releases. IDQ may make Software Releases available to its customers. However, IDQ is not obliged to provide any Software Releases or Software support, unless the Customer has purchased Support & Maintenance from IDQ.
6.8 License Keys. Where applicable, the Customer shall activate the Software using a license key obtained from IDQ. Where applicable, the Customer must provide IDQ with the unique identifier of the Customer’s user or equipment to which the license is allocated. All licenses are non-transferable except as described in IDQ’s License Transfer Policy available at [License Transfer Policy].
6.9 Compliance Verification. Unless otherwise agreed in writing by the Customer and IDQ, IDQ and its independent auditors have the right to verify the use of the Software by the Customer at all sites and in all environments where the Software is used. IDQ’s auditors shall be subject to confidentiality obligations. The Customer undertakes to create, retain, and provide records, system outputs, and other system data to IDQ or its auditors to demonstrate the agreed-upon installation and use of the provided Software. If the audit uncovers discrepancies or unauthorised use of the Software, IDQ will notify the Customer and may charge for the unauthorised use and/or suspend the relevant Contract. In such a case, Customer shall pay the cost of the audit.
6.10 License Term and Billing. Licenses commence on the respective activation dates and remain valid for the term of the Contract as specified in the relevant OC. The activation date shall be no later than thirty (30) days from the date of the relevant OC. Activation is defined as the first date of commercial use of the licensed feature. If the Customer does not activate the license within the 30-day period, the license shall be deemed activated on the last day of that period. Unless otherwise agreed in writing by the Customer and IDQ, licenses operate on a 12-month cycle as follows: (i) licenses are billed for each 12-month cycle during the term of the Contract starting from the first delivery date, (ii) any additional licenses will be billed on a pro-rata basis to align with the existing 12-month cycle, (iii) if the Contract terminates before the then-current 12-month cycle ends, the billing for that period will be pro-rated, and (iv) the Customer may not cancel or decommission any licenses before the expiration of the term of the Contract term; if the Customer chooses to cancel any license mid-cycle, no refunds will be made for the unused license.
6.11 No Backups. IDQ is not obliged to back up any Customer’s data. The Customer is solely responsible for backups and must back up its data before updating the Software and before any maintenance activities in respect of its systems or the Software.
6.12 US Government Customers. The Software is a ‘Commercial Item’, as that term is defined at 48 C.F.R. § 2.101, consisting of ‘Commercial Computer Software’ and ‘Commercial Computer Software Documentation’, as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 222.7202−1 through § 227.7202−4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users with only those rights as granted to all other end users, according to these Terms.
7. SERVICES
7.1 IDQ will provide the Services, which may include Support & Maintenance, Professional Services, and training services, specified in the relevant OC.
7.2 Services Delivery. All Services are provided remotely. Any on-site Services must be agreed to in writing by IDQ and may be subject to additional Charges, including travel and accommodation expenses, as outlined in the applicable OC.
7.3 Commencement and Duration of Services. The provision of the Services will commence on the dates and continue for the term specified in the OC. If no start date is specified in the OC, then the provision of the Services will commence on the acceptance date of the corresponding IDQ Solution.
7.4 Support & Maintenance. IDQ provides Support & Maintenance in accordance with the Support & Maintenance Terms available at [Support & Maintenance Terms] as applicable to the relevant OC.
7.5 Professional Services. Any Professional Services should be agreed in a separate SoW detailing the scope of work, deliverables, timelines, and any associated Charges.
7.6 Training Services. Customer acknowledges and agrees that any training provided by IDQ in relation to IDQ Solutions is designed for technical professionals with adequate knowledge, skills, and expertise. Such training is not intended to substitute or replace the instructions for use, including user manuals, that accompany the corresponding IDQ Solutions.
8. CUSTOMER’S UNDERTAKINGS
8.1 Customer shall:
8.1.1 Provide IDQ with such information and materials as IDQ may reasonably require for its performance under the Contract, ensuring that all such information is complete and accurate in all material respects;
8.1.2 Prepare the Customer’s premises and deployment environment for the supply of IDQ Solutions;
8.1.3 Obtain and maintain all necessary licenses, permissions, consents, and customs import clearances required for IDQ Solutions or otherwise in connection with the Customer’s obligations under the Contract. The Customer agrees that any authorisation, license, permission, or approval required from any regulatory authority, for which IDQ is not expressly made responsible in the Contract, shall be obtained by the Customer in a timely manner;
8.1.4 Use IDQ Solutions in accordance with their relevant specifications and IDQ’s reasonable written instructions;
8.1.5 Not engage any third party to perform maintenance, repair, or intervene in any way with the IDQ Solutions without IDQ’s prior written authorisation;
8.1.6 Comply with applicable laws and regulations.
8.2 Customer Default. If IDQ’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or its failure to perform its relevant obligations (Customer Default):
8.2.1 IDQ shall have the right to suspend performance of the Contract, including the supply of IDQ Solutions until Customer remedies the Customer Default. Customer agrees that Customer Defaults relieve IDQ from the performance of any of its obligations to the extent the Customer Default prevents or delays IDQ’s performance;
8.2.2 IDQ shall not be liable for any costs or losses incurred by the Customer arising directly or indirectly from IDQ’s failure or delay due to the Customer Default;
8.2.3 The Customer shall reimburse IDQ on written demand for any costs incurred by IDQ arising from the Customer Default.
9. CHARGES, PAYMENT, AND CREDIT LIMIT
9.1 Charges
9.1.1 Charges for IDQ Solutions shall be specified in the relevant OC. If Charges are not set out in the PO Confirmation, the Charges shall be based on IDQ’s then-current standard price list. Charges exclude all costs for packaging, insurance, brokerage, and transportation of IDQ Solutions, which shall be invoiced to the Customer unless otherwise specified in the OC. All Charges are exclusive of transactional fees, VAT, sales tax, and other duties, which shall be paid by the Customer at the prevailing rates.
9.1.2 IDQ reserves the right to increase the Charges following the OC in the event of (i) any request by Customer to change the delivery dates, quantities, or types of IDQ Solutions, (ii) any customer-specific requirements, or (iii) any delays caused by the Customer’s instructions regarding IDQ Solutions or failure to provide adequate or accurate information.
9.1.3 Unless otherwise agreed in writing, the Customer shall reimburse IDQ for any travel expenses incurred as a result of fulfilling the Contract, in accordance with IDQ’s travel policy.
9.2 Payment
9.2.1 Unless otherwise agreed in writing, all payments shall be made by the Customer in clear funds in Swiss Francs, without set-off or deduction, to the designated bank account of IDQ within 30 days from the date of the invoice.
9.2.2 For sales of IDQ Solutions outside of Switzerland, IDQ reserves the right to require the Customer to issue an irrevocable and confirmed letter of credit, which shall (i) provide for partial deliveries, (ii) be advised through and confirmed by a bank acceptable to IDQ within 9 days from the date of the applicable OC, and (iii) be valid for at least 60 days beyond the last payment instalment stated in the OC. The Customer shall, at its own expense, extend the letter of credit in accordance with any variation or event that entitles IDQ to an extension of time for dispatch or delivery.
9.2.3 If sums due are not paid in full by the due date, IDQ may, without limiting its other rights, charge interest on any outstanding balance at the greater of 5% per annum or 5% per annum above the base rate of SARON in Switzerland, accruing on a daily basis and payable together with any overdue amount.
9.2.4 The Customer shall not be entitled to delay or withhold payment if the delivery of IDQ Solutions is delayed or not delivered due to reasons beyond IDQ’s reasonable control.
9.3 Credit Limit. IDQ may establish and modify credit limits at its discretion and may withhold further IDQ Solutions if the Customer exceeds such credit limit.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Intellectual Property Rights means rights in patents (including utility models), designs (whether or not capable of registration), semi-conductor topography rights, copyright, moral rights, database rights, trademarks, service marks, trade and business names, rights to sue for passing off, rights in the nature of unfair competition rights, trade secret, confidentiality and other proprietary rights including rights to know-how and other technical information, applications to register any of the foregoing, rights to take action for past infringements in respect of any of the foregoing, and all rights in the nature of any of the foregoing anywhere in the world.
10.2 IDQ Intellectual Property. IDQ retains all Intellectual Property Rights in IDQ Solutions, their modifications and customisations, IDQ’s know-how, and any other IDQ’s products, software, documentation, trademarks, and material. Nothing in any Contract shall confer upon the Customer any right, title, or interest in respect of the foregoing items, except for the limited right to use such Intellectual Property Rights for the purpose of receiving and using IDQ Solutions under the Contract.
10.3 Customer Intellectual Property. The Customer retains all Intellectual Property Rights in its products, software, documentation, know-how, trademarks, and material.
10.4 Foreground Intellectual Property. Nothing in these Terms or any Contract shall be construed as imposing an obligation on either party to create or develop any Intellectual Property Rights for the benefit of the other party. Any engagement or cooperation between the parties regarding development, customisation, or any other work that may give rise to Intellectual Property Rights shall be governed by separate agreements. Notwithstanding the foregoing, all rights, title, and interest in any work carried out by the Customer based on IDQ Solutions shall vest in and remain the sole and exclusive property of IDQ.
10.5 Feedback. The Customer is not obliged to provide IDQ with any feedback regarding IDQ Solutions. However, for Customer’s voluntary feedback regarding IDQ Solutions, the Customer hereby grants IDQ a perpetual, non-exclusive, worldwide, irrevocable license to use, reproduce, modify, license, sublicense (through multiple tiers of sublicensees), and distribute (through multiple tiers of distributors) any such feedback without the payment of any royalties or fees to the Customer. IDQ will decide if and how to respond to such feedback.
10.6 Third-Party Claims
10.6.1 The Customer must promptly notify IDQ in writing of any actual or threatened infringement, challenge, or unauthorised use of IDQ Solutions that it becomes aware of, providing reasonable detail regarding the nature thereof (Action). At IDQ’s expense, IDQ may take full control of any such Action, and the Customer shall provide all necessary information and assistance to aid IDQ in managing the Action. IDQ has the right to initiate, defend, or settle any legal proceedings related to the Action, and the Customer shall refrain from making any comments that may compromise IDQ’s ability to defend or settle the Action.
10.6.2 Notwithstanding the foregoing provisions, IDQ shall have no liability for any Action regarding IDQ Solutions (i) resulting from any unauthorised use of IDQ Solutions, or (ii) not attributable to IDQ (for example, resulting from unauthorised modifications, repairs, or replacements, or from the use of IDQ Solutions in combination with other software or technology).
10.6.3 The Customer shall indemnify and defend IDQ, its Affiliates, and their respective directors, officers, employees, and agents against any claim, suit, or proceeding arising from any unauthorised use, repair, or modification of IDQ Solutions, or from the use by the Customer or any person acting through it of IDQ Solutions in combination with third-party software or technology not approved by IDQ.
11. WARRANTIES
11.1 Hardware Warranty. IDQ warrants that, upon delivery and for a period of 12 months from the date of acceptance or 15 months from the date of delivery, whichever occurs first (Hardware Warranty Period), the Hardware shall: (i) conform in all material respects with the corresponding specification; and (ii) be free from material defects in design, material, and workmanship.
11.2 Exclusions from the Hardware Warranty. IDQ shall not be liable for any failure of the Hardware to comply with the warranty specified in clause 11.1 in the event that:
11.2.1 the Customer makes further use of the Hardware after notifying IDQ of a defect in accordance with clause 11.3.1;
11.2.2 the defect arises because the Customer failed to follow IDQ’s instructions regarding the storage, installation, commissioning, use, or maintenance of the Hardware, or good trade practices regarding the same;
11.2.3 the Hardware is operated under abnormal working conditions or conditions that are more severe or otherwise exceed those specified in the relevant specifications;
11.2.4 the Customer alters or repairs the Hardware without IDQ’s prior written consent;
11.2.5 the defect arises because of fair wear and tear (including accessories and consumables or other items that are subject to regular replacement), wilful damage, or negligence;
11.2.6 the defect is due to corrosion, erosion, vibrations, or contamination;
11.2.7 the Hardware is categorised as experimental, a prototype, or is intended solely for field trials.
11.3 If the Hardware does not comply with the warranty specified in clause 11.1, the Customer shall return the Hardware to IDQ in accordance with IDQ’s return material authorisation (RMA) procedure consisting of the following:
11.3.1 the Customer must notify IDQ in writing of any alleged defects found during the Hardware Warranty Period within a reasonable time of discovery (not to exceed 30 days from discovery). Upon receiving such notification, IDQ will assess whether the Hardware qualifies for return under the applicable warranty;
11.3.2 Once IDQ has confirmed the qualification of the return to the Customer, the RMA process commences. The Customer shall obtain an RMA number from IDQ prior to returning any Hardware through a request sent to rma@idquantique.com. The Customer must return the Hardware with an itemised statement listing all included accessories, including third-party accessories with claimed defects, to IDQ’s premises in Geneva, Switzerland, or another location indicated by IDQ. Unless otherwise agreed in writing between the parties, the Customer shall arrange and bear the expenses associated with returning the Hardware;
11.3.3 any Hardware returned to IDQ that is found to comply with the warranty specified in clause 11.1 will be subject to IDQ’s standard examination charge in effect at the time, which shall be charged to Customer, and any such Hardware will be returned to the Customer at the Customer’s cost;
11.3.4 any Hardware returned to IDQ without an itemised statement of claimed defects will not be examined by IDQ and will be returned to the Customer at the Customer’s cost;
11.3.5 for any Hardware returned to IDQ and determined, in IDQ’s reasonable opinion, to not comply with the warranty specified in clause 11.1, IDQ, at its sole discretion, will either replace or repair the defective parts and return the Hardware to the Customer at IDQ’s cost. IDQ may, at its sole discretion, issue a credit note for any such Hardware as an alternative to the remedies of repair or replacement;
11.3.6 any Hardware repaired or replaced under the warranty shall carry the warranty for the remaining duration of the Hardware Warranty Period for that specific Hardware.
11.4 Software Warranty. IDQ warrants that, upon delivery and for a period of 90 days from the date of acceptance, the Software shall conform in all material respects with the corresponding specifications. Any claim made by the Customer under this Software warranty shall be sent in writing to IDQ, specifying the nature of the defect. Upon receipt of such notice, IDQ will investigate the reported defect. If the Software does not comply with the warranty specified in this clause 11.4, IDQ will make reasonable efforts to correct the non-compliance or, at its option, refund the Charges paid for the Software.
11.5 Exclusions from the Software Warranty. IDQ shall not be liable for any failure of the Software to comply with the warranty specified in clause 11.4 if such non-compliance is caused by (i) any modification, variation, or addition to the Software performed by the Customer or any third party, (ii) incorrect use of the Software, (iii) use of the Software with other software not approved by IDQ, or (iv) use of the Software on incompatible equipment.
11.6 The warranties provided in this clause 11 apply to the extent permitted under applicable law and do not extend to any materials, parts or equipment not manufactured by IDQ. The Customer shall only be entitled to the benefit of any third-party products warranty or guarantee, which IDQ is capable of assigning to the Customer. As applicable, the Customer undertakes to comply with the corresponding third-party supplier’s return materials authorisation process. IDQ may, at its sole discretion, accept such third-party products for repair or replacement only if expressly authorised to do so by the relevant third party.
11.7 The Customer assumes sole responsibility for results obtained from the use of IDQ Solutions and for conclusions drawn from such use. IDQ shall have no liability for any damage caused by errors or omissions in any information, instructions, or scripts provided to the Customer in connection with IDQ Solutions, or any actions taken by IDQ at the Customer’s direction, and IDQ Solutions are provided to Customer on an “as is” basis. IDQ does not warrant that the use of IDQ Solutions will be uninterrupted or error-free. All other conditions, warranties, or other terms which might have effect between the parties or be implied or incorporated into any Contract, whether by statute, law, or otherwise, are hereby excluded to the fullest extent permitted by law.
11.8 Extended Warranty. The Customer may purchase an extended Hardware Warranty or Software Warranty, as applicable, for additional periods beyond the Warranty Periods specified in clauses 11.1 and 11.4 (Extended Warranty). During the Extended Warranty period, the provisions of clauses 11.1 to 11.7 shall apply. The Extended Warranty is subject to additional charges, as agreed between the parties.
11.9 Support & Maintenance. The Customer may elect to receive Support & Maintenance during the Warranty Periods specified in clauses 11.1 and 11.4. In such cases, any repairs, replacements, or corrective actions for IDQ Solutions arising during the respective Warranty Periods shall be carried out according to the terms of the relevant Support & Maintenance plan. After applicable warranty periods expire, any further support and maintenance of the Software and the Hardware will be provided only if the Customer has purchased a Support & Maintenance plan.
12. LIABILITY
To the fullest extent permitted by law:
12.1.1 neither party shall be liable for any actual or alleged indirect, consequential, incidental, punitive loss, loss of profits, loss of anticipated profits, loss of savings, loss of business, loss of opportunity, loss of publicity, loss of reputation or any other sort of economic loss damage or expenses howsoever arising suffered by the other party in connection with these Terms, or any quotation, PO, or Contract.
12.1.2 IDQ’s, its Affiliates’, and third-party suppliers’ maximum liability under these Terms, or any quotation, PO or Contract, shall be limited to 100% of the Charges received by IDQ under the relevant Contract in the 12 months before the corresponding claim.
13. CONFIDENTIALITY
13.1 As used in these Terms, Confidential Information means all confidential and proprietary information (whether in oral, written or electronic form) including technical or other information imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other’s business, products, operations, research and development efforts, inventions, trade secrets, computer software, plans, intentions, market opportunities, processes, recipes, formulae, vendor and customer relationships, finances and other business operations and other arrangements or operations of any person, firm or organisation associated with that party, or would be regarded as being confidential by a reasonable business person.
13.2 Each party agrees that it may use the other party’s Confidential Information only in the exercise of its rights and performance of its obligations under the Contract and that it shall not disclose the other party’s Confidential Information except in accordance with this clause 13.
13.3 Each party may disclose the other party’s Confidential Information to those of its employees, officers, advisers, agents or representatives who need to know the other party’s Confidential Information in order to exercise the disclosing party’s rights or perform its obligations under the Contract provided and who are subject to confidentiality obligations substantially similar to those contained herein.
13.4 Upon the disclosing party’s written request, the other party will return or securely destroy the other party’s Confidential Information and confirm completion in writing within 30 days of the disclosing party’s written request, unless retention is required by law or Confidential Information has been stored in a backup system in the ordinary course of business. Retained Confidential Information will continue to be subject to the confidentiality requirements in this Section 13. Furthermore, if the Customer discontinues use of any IDQ Solutions or any related proprietary information, the Customer shall securely erase all proprietary information of IDQ embedded within such IDQ Solutions and provide IDQ with written confirmation of such secure erasure in compliance with industry standards, within 30 days after cessation of use.
13.5 The obligations of confidentiality and non-disclosure contained in this clause 13 shall not apply to Confidential Information where the disclosure of it is required by law, by any court of competent jurisdiction or by any official regulatory body.
14. COMPLIANCE WITH LAW; EXPORT CONTROLS
14.1 Each party agrees to perform hereunder in compliance with laws, including anti-bribery, anti-corruption, and data protection laws and regulations, applicable to that party. Each party shall be responsible for ensuring that its respective actions and processes related to personal data comply with the requirements of applicable data protection laws. IDQ does not process personal data under the instructions or on behalf of the Customer. If IDQ agrees to do so, both parties must enter into a separate data processing agreement, which will outline the terms and conditions governing such personal data processing.
14.2 Neither Customer nor any of its Affiliates or subcontractors will directly or indirectly export, re-export, transfer, or release, or cause to be exported, re-exported, transferred or released any products, intellectual property, proprietary data, know-how, software or other data or information licensed or otherwise obtained from IDQ to any destination or person prohibited or restricted under the laws of the USA, the UK, Switzerland, or the EU, or any other governmental or regulatory entity, including but not limited to government embargoed or sanctioned countries, entities or individuals, or for any end use connected to the design, development, production or use of nuclear, biological or chemical weapons or missile technology.
14.3 Customer shall indemnify IDQ from and against all claims, liabilities, suits, losses, damages, and expenses, including costs and reasonable attorney’s fees, relating to, or resulting from any violation or alleged violation by Customer of its obligations under this clause 14.
15. SUSPENSION AND TERMINATION
Without limiting any of its other rights, IDQ may suspend the supply or delivery of the IDQ Solutions in full or in part, or terminate the Contract with immediate effect by giving written notice to the Customer if:
15.1.1 the Customer commits a material breach of these Terms or any other conditions of the applicable Contract, and, if capable of being remedied, fails to remedy such breach within 30 days of receiving written notice of the breach;
15.1.2 the Customer fails to pay any amount due under the applicable Contract by the due date, and such amount remains unpaid 30 days after IDQ has provided notice that payment is overdue;
15.1.3 any consent, license, or authorisation held by the Customer is revoked or modified, preventing the Customer from fulfilling its obligations under the applicable Contract;
15.1.4 the Customer (i) is unable to pay its debts as they fall due, or IDQ reasonably believes that to be the case, (ii) becomes the subject of a company voluntary arrangement with its creditors, or has a receiver, manager, administrator, or administrative receiver appointed over all or any part of its undertaking, assets, or income, (iii) has a resolution passed for its winding up, or has a petition presented to any court for its winding up, or has an application made for an administration order, or is the subject of any winding-up or administration order, or (iv) is subject to any events or circumstances analogous to those in this clause 15.1.4 in any jurisdiction.
16. GOVERNING LAW/DISPUTE RESOLUTION
16.1 Any Contract, and any dispute or claim arising out of or in connection with it, its subject matter, or its formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of Switzerland, excluding its conflict of laws provisions and the application of the UN Convention on Contracts for the International Sale of Goods.
16.2 The parties irrevocably agree that the courts of Geneva, Switzerland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with any Contract, its subject matter, or its formation (including non-contractual disputes or claims).
17. MISCELLANEOUS
17.1 Notices. Notices shall be in writing and in the English language and may be delivered by hand or may be sent by electronic mail with confirmation, or by international courier (with confirmation of delivery requested) addressed to the other party at the addresses listed in respect of each party, or such other address indicated in writing to the other party. Notices to IDQ shall be sent to contract@idquantique.com and Rue Eugène-Marziano 25, 1227 Les Acacias, Switzerland.
17.2 Force Majeure. Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from any event beyond the reasonable control of that party. The party affected by such an event shall promptly notify the other party in writing when such an event causes a delay or failure in performance and when it ceases to do so. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing its obligations. If such an event continues for a continuous period of more than 90 days, the non-affected party may terminate the Contract by written notice to the other party.
17.3 Relationship Between the Parties. Nothing in these Terms or any Contract shall be deemed or construed to create a partnership, association, joint venture, or agency relationship between the parties. Neither party shall have, nor represent that they have, any authority to make commitments or bind the other party in any way. A person who is not a party to the Contract shall not have any rights to enforce any of its provisions, except that IDQ may enforce the Contract on behalf of its Affiliates.
17.4 Publicity. The Customer shall not, without the prior written consent of IDQ, advertise, publicise, or disclose the existence of any Contract or any information regarding the relationship between the parties, or use IDQ’s name, trade name, trademark, service mark, or brand imagery in any press release or advertisement.
17.5 Waiver. No waiver of any provision or breach of these Terms or any Contract shall be valid unless in writing and signed by the waiving party. A waiver of any provision or breach shall not constitute a waiver of any other provision or breach. Failure to enforce any right shall not be deemed a waiver of that right.
17.6 Severability. If any provision of the Contract is found to be invalid, ineffective, or unenforceable, the remaining provisions shall remain valid and enforceable. The parties agree to use their best efforts to replace any invalid, ineffective, or unenforceable provision with a valid, effective, and enforceable provision that best meets the original economic intent of the parties.
17.7 Assignment. The Customer shall not assign, subcontract, or transfer any rights or obligations under the Contract, in whole or in part, without the prior written consent of IDQ. IDQ may assign or transfer its rights or obligations under the Contract to its Affiliates without the Customer’s consent.
17.8 Survival. The provisions of clauses 9, 10, 11, 12, 13, 14, 16, and 17 of these Terms shall survive any termination of the Contract.
