Terms and Conditions - Acumex Client Network and Trade Management System (Published 5/10/2018)
PLEASE READ THESE TERMS AND CONDITIONS (“AGREEMENT”) CAREFULLY BEFORE USING THIS PLATFORM, SOFTWARE AND ANY ASSOCIATED MATERIALS, INFORMATION AND DATA. BY CONTINUING ACCESSING OR OTHERWISE USING THE ACUMEX SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THE ACUMEX SERVICES.
These general terms and conditions apply to the Agreement entered into between Acumex Services ApS (Danish company reg. no. 40018883), a Danish limited liability company having its registered offices in Denmark (“ACUMEX”) and the person or legal entity that subscribes to ACUMEX’s Services (“Customer”). No other terms and conditions shall apply unless otherwise agreed in writing by a representative of ACUMEX authorized to do so
1.1 Subject to the terms and conditions of this Agreement, Customer is granted:
A. a limited, non-exclusive, non-assignable, worldwide, for internal-use-only copyright license to install, view, access, test and use internally ACUMEX’s cloud-based trading platform for pharmaceuticals, medical devices, veterinary products and cosmetics and its associated Enterprise Resource Planning system, business intelligence tools and content (“TMS”); and
B. a limited, non-exclusive, non-assignable, license to install, view, access, test and use ACUMEX’s cloud-based platform services for building professional trading relationship and the associated content (“Acumex CLIENT NETWORK”),
herein the above platforms, tools and content are jointly referred to as the “Services” or the “Acumex Services”.
1.2 The Acumex CLIENT NETWORK may be used solely to establish relationships with other customers using the Services. It is specifically prohibited to conduct trading of pharmaceuticals, medical devices, veterinary products and cosmetics or any other trading using the Acumex CLIENT NETWORK.
1.3 The TMS may be used solely for purposes of trading pharmaceuticals, medical devices, veterinary products and cosmetics for which Customer has the relevant licenses.
1.4 ACUMEX may include software supplied by third-parties in the Services. ACUMEX is providing such third-party software to Customer by permission of the respective licensors and/or copyright holders on the license terms provided by such parties. Such third-party license terms can be found in documentation accompanying the Services (such as a read-me file) or on ACUMEX’s websites (www.acumex.eu and/or www.acumex.net). Customer must fully agree and comply with these license terms or must not use the software. The third-party license terms apply only to the respective software to which the license pertains.
1.5 Subject to the terms of this Agreement, ACUMEX will use commercially reasonable efforts to provide Customer the Services, including among other things keeping the content and information in the Services as up-to-date as reasonably possible.
2 Trading via TMS
2.1 As part of the registration process in TMS, Customer will identify an administrative username and password for Customer’s ACUMEX account.
2.2 Customer shall ensure that each of its users only uses TMS in connection with said user’s individual ID. If a user is no longer to have access to TMS (e.g. due to termination of employment) or if a user’s role changes, Customer shall without delay inform ACUMEX thereof.
2.3 Subject to the terms hereof, ACUMEX will, during trading hours, provide Customer with reasonable technical support services via e-mail and phone with regard to TMS.
2.4 Trading hours will be specified and available inside TMS. During trading hours, offers to buy or sell as well as acceptance of such offers may be placed. Outside of trading hours, the Customer cannot execute trades, but may still access TMS unless they are closed for maintenance or similar, see clause 7.1.
2.5 For markets and or transactions where licenses, approvals and similar are required by applicable law, the Customer is responsible for ensuring that such licenses, approvals and similar are in place and ACUMEX may make access to TMS contingent on proof thereof (e.g. for pharmaceuticals: GMP, GDP and/or Wholesale Distribution Authorization number(s)). ACUMEX may make any GMP, GDP and/or Wholesale Distribution Authorization number(s) and similar available in the Services as part of the Customer’s public profile to allow trading parties to fulfill compliance requirements. If a Customer’s license or similar is invalidated by authorities, Customer shall without delay inform ACUMEX thereof. ACUMEX may, from time to time, require Customer to confirm that Customer still holds the necessary valid licenses and authorizations.
2.6 Offers made by the Customer to buy or sell via TMS will remain valid throughout the trading day until the Customer either, via TMS, effectively revokes such offer or the offer is accepted in full by one or more other customers. At the end of the trading day, Customer’s offer to buy or sell will expire, but Customer may elect to renew the offer for the following trading day.
2.7 Where Customer provides a specific offer to buy or sell via TMS, a trade is consummated and such offer is binding on the Customer when accepted by another customer. Where Customer accepts a specific offer made by another customer to buy or sell via TMS, a trade is consummated and such acceptance is binding on the Customer. Consummated trades will be recorded in the transaction history of TMS for both parties to the transaction. ACUMEX will only void a consummated trade if both parties to the trade notify ACUMEX in writing that the specific trade should be voided.
2.8 ACUMEX’s TMS are solely provided for the purpose of facilitating trading in pharmaceuticals, medical devices, veterinary products and cosmetics and associated interactions between the Customer and other customers. ACUMEX is not a party to such interactions, and ACUMEX takes no responsibility for the performance of any accepted offer to buy or sell, including no responsibility for non-performance, late performance or non-conforming performance. All items offered for sale via TMS, and the content made available by the customers in TMS, are third party user generated contents. ACUMEX has no control over such third party user generated contents and does not originate or initiate the transmission, or select the sender/recipient of the transmission, or the information contained in such transmission.
3 Restrictions and Responsibilities
3.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, ACUMEX hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
3.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with ACUMEX’s standard published policies then in effect (the “Policies”) and all applicable laws and regulations. Although ACUMEX has no obligation to monitor Customer’s use of the Services, ACUMEX may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Acumex CLIENT NETWORK, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.4 It is the responsibility of the Customer to make their own necessary records for transactions occurring through TMS.
3.5 With regard to TMS, it is the responsibility of the Customer to comply with relevant GMP, GDP and any other relevant regulations, hereunder to ensure that products listed on TMS are covered by the Customer’s Wholesale Distribution Authorisation and that they have been properly stored and transported. ACUMEX is not liable for any damages as a result from failure to comply with these regulations.
3.6 With regard to TMS, the listing or trading of counterfeit items, illegal items, patient-returned medicines or similar is strictly prohibited. Any Customers found to be trading or attempting to trade in violation hereof will have their accounts suspended or terminated and be reported to the relevant authorities. A Customer suspecting that counterfeit items, patient-returned medicines or similar are listed or being traded via the Services, are recommended to contact ACUMEX immediately and report the same in writing.
4 CONFIDENTIALITY; PROPRIETARY RIGHTS; information
4.1 Each party understands that the Customer may, for purposes of enabling and receiving the Services, disclose confidential business, technical or financial information relating to the Customer’s business (“Customer Data”) to ACUMEX; Customer Data does not include data generated via the Services (such as transaction data and meta-data). ACUMEX agrees: (i) to take reasonable precautions to protect such Customer Data, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Customer Data. Customer agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that ACUMEX can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Customer, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Customer Data or (e) is required to be disclosed by law.
4.2 The duty of confidentiality set out above shall not prevent ACUMEX from generating and utilizing anonymous data and meta-data for the purpose of providing the Services for the Customer and other customers/users of the Services. For compliance reasons, transaction data is stored for a minimum of 5 years or as required by applicable law.
4.3 Customer shall own all right, title and interest in and to the Customer Data. IN PARTICULAR, CUSTOMER SHALL BE ENTITLED AT TERMINATION OF THIS AGREEMENT (REGARDLESS OF THE REASON FOR TERMINATION) TO DEMAND THAT ACUMEX DELETE ALL CUSTOMER DATA, EXCEPT FOR TRANSACTION DATA (SUCH AS NAMES OF PARTIES IN TRADES, PRICING, PAYMENTS, DELIVERY ADDRESSES AND DELIVERIES).
4.4 ACUMEX shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with implementation of Services or support, and (c) all intellectual property rights related to any of the foregoing.
4.5 Notwithstanding anything to the contrary, ACUMEX shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and ACUMEX will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other ACUMEX offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein. Further, “Customer data” may be exchanged with agreed third party service providers to enable their services for purposes of ACUMEX’s Services; provided such third parties will be subject to confidentiality obligations no less severe than as set out herein.
5 PAYMENT OF FEES
5.1 Customer will pay ACUMEX the then applicable fees described in the price plans for the Services provided by ACUMEX (the “Plan”) in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the service capacity set forth on the Plan or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. ACUMEX reserves the right to change the Fees or applicable charges and to institute new charges and Fees, upon ninety (90) days’ prior notice to Customer (which may be sent by email) (cf. clause 6.3). If Customer believes that ACUMEX has billed Customer incorrectly, Customer must contact ACUMEX no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
5.2 ACUMEX may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by ACUMEX thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than taxes based on ACUMEX’s net income.
6 TERM, TERMINATION and amendments
6.1 Subject to earlier termination as provided below, this Agreement is for the term as specified in the Plan (“Initial Service Term”), and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
6.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ prior written notice (which may be sent by email) (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement.
6.3 ACUMEX may, at its sole discretion and by providing Customer with no less than sixty (60) days’ prior written notice (which may be sent by e-mail), make amendments to this Agreement. By continuing to use the Services after such amendments are validly made, Customer expresses and acknowledges its acceptance of such amendments. If Customer cannot accept the amendments, for any reason, Customer is entitled to terminate this Agreement with thirty (30) days’ written notice (which may be sent by e-mail) to be provided to ACUMEX before such amendments take effect
6.4 In case of termination pursuant to clause 6.1-6.3 above, Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7 Warranty and Disclaimer
7.1 ACUMEX shall use commercially reasonable efforts to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by ACUMEX or by third-party providers, or because of other causes beyond ACUMEX’s reasonable control, but ACUMEX shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
7.2 ACUMEX DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.3 ACUMEX does not warrant against, or accept any responsibility or liability for, counterfeit items and patient-returned medicines or similar transacted through the Services. It is the responsibility of the users, to ensure all goods sold and purchased respectively, are not counterfeit, patient-returned medicines or of similar nature.
8.1 ACUMEX shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any European patent or any copyright or misappropriation of any trade secret, provided ACUMEX is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; ACUMEX will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by ACUMEX, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by ACUMEX, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by ACUMEX to be infringing, ACUMEX may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services.
8.2 Customer shall hold ACUMEX harmless from liability resulting from infringement or violation of applicable law or third party rights due to Customer’s sale, or offering for sale, of medicines or other items that are counterfeit, illegal, patientreturned, past expiration date, in violation of import/export regulation or similar (reference is made to European Commission Guidelines on Good Distribution Practice of medicinal products for human use) or that are in violation of third party rights.
9 LIMITATION OF LIABILITY
9.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, ACUMEX AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ACUMEX’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO ACUMEX FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.2 This Agreement is not assignable, transferable or sublicensable by Customer except with ACUMEX’s prior written consent. ACUMEX’s may transfer and assign any of its rights and obligations under this Agreement without consent.
10.3 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
10.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind ACUMEX in any respect whatsoever
10.5 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
10.6 Customer authorizes ACUMEX to store and use Customer’s business contact information wherever Customer does business, in connection with the Services, or in furtherance of ACUMEX’s business relationship with Customer.
10.7 This Agreement shall be governed by the laws of the Kingdom of Denmark without regard to its conflict of laws provisions.
10.8 Any dispute arising out of or in connection with this contract, including any disputes regarding the existence, validity or termination thereof, shall be settled by arbitration administrated by The Danish Institute of Arbitration in accordance with the rules of arbitration procedure adopted by The Danish Institute of Arbitration and in force at the time when such proceedings are commenced. The arbitral tribunal shall be composed of one (1) arbitrator. The place of arbitration shall be in Copenhagen, Denmark. The language to be used in the arbitral proceedings shall be English.