Terms of Service

1. General, scope of application, definition of terms

• All contracts for deliveries and services as well as obligations arising from the commencement of contractual negotiations, the initiation of a contract or similar business contacts (hereinafter referred to as “Purchaser”) shall be subject to these Terms.
• These Terms shall also apply to future contracts and business contacts in the version which we have made known to the Purchaser in its wording at the latest at the time of the conclusion of this contractual relationship.
• These Terms shall apply exclusively; deviating or additional terms and conditions of the Purchaser which are unfavourable to us shall not become part of the contract even if we do not separately object to them.
• The content of the contract is based on the written agreements. No further agreements have been made. Amendments or supplements to the contract shall only be effective if they are confirmed by us in writing.
• In the case of continuing obligations, the Purchaser will be notified in writing of any amendments to these Terms, indicating the amended provisions, and shall be deemed to have been agreed if the Purchaser continues the continuing obligation without objecting within a reasonable period of time.
• Unless otherwise specified, “goods” within the meaning of this contract shall mean all items to be provided to the Purchaser under the contract, including software, even if provided in a non-physical form, e.g. by electronic means of transmission.
• For services obtained by or on behalf of the Purchaser via our website (www.cytek-one.com), our Terms and Conditions, these Terms shall apply jointly giving priority to these Terms.
• The maintenance of hardware or software requires a separate contract between us and the Purchaser.

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2. Offer, Offer Documents, Quotation, Acceptances, Supplementary Offers

• Our offers are subject to change and are merely invitations to submit an offer unless we expressly indicate otherwise.
• Offers made by the Purchaser shall be deemed to have been accepted when a) we have confirmed the offer in writing (order confirmation or invoice for advance payment), or b) have carried out the delivery or service.
• We reserve the property rights and copyrights to all documents provided to the Purchaser, in particular data carriers, documentation, illustrations, drawings, calculations; (collectively “Our Materials”). Our Materials may not be used for purposes other than those stipulated in the contract and may not be made accessible to third parties and must be returned to us free of charge without delay when a) the contract is terminated or b) when the contractual purpose of use has been fulfilled.
• The Purchaser is obliged to keep the information and data contained in our Materials secret. This applies in particular to such documents and information which are designated as “confidential”.
• We are entitled to demand the return of documents at any time if secrecy is not ensured. The obligation to maintain secrecy shall not be affected by termination of the contract.
• The Purchaser is obliged to carefully check our offer for correctness and suitability. This shall apply in particular to project offers in which we have made assumptions designated as such which we have based on our calculation and performance description. If such assumptions do not apply, the Purchaser shall inform us thereof so that we can correct the offer. We are entitled to place subcontracts.
• If a quotation is prepared on behalf of the Purchaser, the costs thereof shall be reimbursed by the Purchaser in accordance with the time spent.

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3. Quality of the goods or services

• Our goods are intended exclusively for use by the Purchaser. If the Purchaser intends to deliver the goods purchased from us to a consumer, entrepreneur, or reseller who in turn supplies consumers or entrepreneurs with such goods, the Purchaser is required to inform us in writing.
• Technical data sheets issued by us or the manufacturer shall form part of the contractual agreement.Properties, uses or public statements which we have established or which another link in the contractual chain has established are only part of the requirements owed insofar as they have been expressly agreed in writing in the contract.
• We reserve the right to make customary technical changes, in particular improvements, up to the time of delivery, provided that only insignificant changes in the quality occur as a result and the purchaser is not unreasonably affected.
• Information on the quality or durability of goods or services does not constitute a guarantee or a warranty unless we have expressly assumed such a guarantee in writing. If a third-party manufacturer of a product provides a guarantee, this shall be passed on to the Purchaser; the scope of the manufacturer’s guarantee provided, if any, shall be determined by the guaranteed conditions of the third-party manufacturer. The same applies to warranty extensions or care packs of the manufacturer.
• If goods are produced or modified on the basis of the Purchaser’s specifications, we are not obliged to check these specifications. The Purchaser shall not be entitled to any claims for defects which are attributable to these specifications or to hardware or software used by the Purchaser and supplied by third parties.
• If we are obliged to install software or hardware, the Purchaser must ensure a suitable hardware and software environment and ensure that the requirements communicated to Purchaser regarding hardware, software, and the other environment, in particular the connection to the computer network including all cabling, are met before installation.
• The setting up of suitable computer workstations, in particular compliance with occupational health and safety regulations, is neither owed nor checked by us, but is the responsibility of the Purchaser.

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4. Supplementary provisions on the quality of software

• Unless expressly agreed otherwise, the subject matter of the contract is standard software which has not been individually produced for the needs of the Purchaser. Contracts for software are therefore purchase contracts. The parties agree that it is impossible, given the state of the art, to develop standard software error-free.
• Unless otherwise agreed, software shall be delivered in a version suitable for the Microsoft Windows operating system (current versions).
• In the case of standard software of third-party manufacturers, we shall supply the purchaser with the original user documentation of the manufacturer. We are not obliged to supply any additional documentation. Upon request, the Purchaser shall be given access to the original user documentation to be supplied prior to conclusion of the contract. Otherwise, the documentation shall be supplied as online help within the scope of the software. If the Purchaser wishes further written documentation, he can inform us of this before conclusion of the contract. We shall then provide him with an offer for such documentation.
• If software is to be delivered, we shall be obliged to hand over the object code on a data carrier. There shall be no claim to the source code.
• During test operations and during installation, the Purchaser shall ensure the presence of competent and trained employees and shall stop other work with the computer system if necessary. Further, the Purchaser will be required to ensure that all data is backed up before installation.

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5. Rights of use

• Rights of use shall not pass to the Purchaser until payment has been made in full. Insofar as usage rights are granted prior to full payment, these may be revoked at any time.
• In the case of standard software and other copyrighted material, the manufacturer’s terms of use shall apply. These terms of use shall be made available to the Purchaser on request only.
• Unless otherwise agreed, the Purchaser shall be granted a non-exclusive licence to use the software for an unlimited period of time. This permission is not transferable. The Purchaser is not permitted to grant rights of use to third parties. If no network licence or multi-user licence is purchased, use is only permitted on a single computer. If the hardware is changed, the software must be completely deleted from the previously used hardware. Simultaneous storage, stocking or use on more than one hardware unit is not permitted.
• In the case of a network licence, the right of use shall apply to the agreed individual workstations of the contractually determined local network. The Purchaser is obliged to prevent any use by third parties.
• Unless otherwise prescribed by law, the Purchaser shall not be entitled to reproduce, distribute, make publicly available, rent, modify or edit any software or written material provided to him.
• Existing copyright notices or registration features, such as in particular registration numbers in the software, may not be removed or changed.
• For each case of culpable infringement of the above provisions by the Purchaser, we shall be entitled, without prejudice to other rights, to demand a contractual penalty which shall be determined by us in each individual case and the amount of which may be reviewed by the competent court. Third parties within the meaning of this point shall also include companies affiliated with the Purchaser, or spatially or organisationally separate entities, such as branch offices.

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6. Prices, remuneration

• All prices are in EURO ex works plus shipping, insurance and packaging costs including original packaging. All prices are net amounts excluding taxes levied on sales, such as VAT, and withholding taxes.
• We issue invoices in accordance with applicable law, in particular the Value-Added Tax Consolidation Act 2010 and applicable excise tax laws. To the extent that Supplies/Services are subject to VAT and/or similar taxes, such taxes shall, be payable by the Purchaser to us in addition to the price, unless such tax is payable by the Purchaser as recipient of the Supplies/Services to the competent tax authority in accordance with the applicable law, such as Articles 194 to 199 and 200 of Council Directive 2006/112/EC (reverse charge procedure/intra-Community acquisition).
• Insofar as deliveries/services are subject to tax, such taxes shall be owed by the Purchaser in addition to the invoice amounts and shall be paid to the competent tax authority.
• Unless otherwise stated in the order confirmation, our list prices or, alternatively, our usual prices shall apply.
• If a delivery period of more than six weeks is agreed or in the case of continuing obligations lasting longer than six weeks, we shall be entitled to increase the prices payable for the provision of goods and services on the basis of the contract concluded if:
• the procurement costs for hardware, software or other services procured for resale to the Purchaser increase,
• the procurement costs for hardware, software and other services which we procure on a dedicated basis for our provision of services to the Purchaser increase (the procurement is to be regarded as dedicated if the hardware, software or other service can be clearly allocated to the provision of services to the Purchaser),
• the provision of the supplies/services under this contract is subject to increased and/or further taxes, duties or other charges;
• the storage, transport (including transport insurance) and packaging costs increase not only insignificantly,
• the energy, heating and fuel prices increase more than insignificantly,
• the refinancing rate or other refinancing costs increase, provided that the Purchaser has been informed that the provision of services is subject to financing,
• the wage costs or the statutory minimum wage costs increase significantly,
• the technical infrastructure must be changed due to statutory requirements and this results in costs which could not be foreseen at the time of conclusion of the contract, or
• the other costs relevant for the price calculation increase as a result of unforeseeable circumstances not caused by us and beyond our control.
• An adjustment must be equitable, in particular it may only be made to the extent necessary to compensate for the change, taking into account any savings, and may not be triggered by culpable conduct on our part. It must be announced in advance in writing with a notice period of at least 4 weeks, stating the reason. At the request of the Purchaser, we shall explain the amount of the adjustment in a comprehensible manner.
• If the contract is a contract for work and services in which we are the contractor and if the Purchaser terminates the contract before we have commenced performance, we shall be entitled to a lump-sum payment of 5% of the agreed total remuneration.
• If, after conclusion of the contract, we discover that assumptions which have become part of the contract are incorrect, the Purchaser shall be obliged to remunerate any additional expenditure in accordance with the agreed rates, or alternatively our usual rates, if we do not submit a supplementary offer.

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7. Terms of payment

• The Purchaser agrees that invoices may also be sent electronically. We may also use messengers or representatives for invoicing purposes. The invoice will be sent to the generally known address, fax number or email address, unless the parties agree otherwise.
• Unless otherwise stated, invoices are due immediately and without deduction. If a payment date has not been agreed, the occurrence of default shall be governed by the statutory provisions.
• In the case of bank transfers, the timeliness of payments shall be determined by their availability to us.
• We are entitled to set off payments against the oldest invoice due, even if the Purchaser has stipulated repayment to the contrary.
• The Purchaser is only entitled to set-off with undisputed or legally established claims. The Purchaser is only entitled to exercise rights of retention with undisputed or legally established claims from the same legal relationship. The assignment of claims against us is excluded.

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8. Delivery, transfer of risk

• All deliveries are ex works. We do not assume any liability for the cheapest mode of shipment.
• Except in cases of an obligation to be performed at the place of delivery, the risk of loss and deterioration shall pass to the Purchaser upon delivery to the person entrusted with the shipment, irrespective of the regulation of the transport costs, even if we carry out the shipment ourselves.
• If the Purchaser notifies us of his wish prior to shipment, we shall cover the delivery by transport insurance at his expense.

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9. Delay

• Purchaser agrees and acknowledges that we do not guarantee a) the dispatch or delivery or availability of Goods/Services within the time frames set out, estimated delivery times listed or any other time frames otherwise specified by us; b) stock availability and events outside our control may cause delays, or in some circumstances, prevent Goods/Services from being delivered; c) delays are particularly likely to occur during busy sale periods such as those around Christmas, Easter and public holidays; and d) except to the extent expressly set out in these Terms and Conditions or otherwise required by law, neither we nor any of our agents will be liable to Purchaser, or any other person, for any loss, damage, cost or expense suffered as a direct or indirect result of any delay in delivery of the Goods/Services to Purchaser or delay in the availability of Goods/Services, whether in contract, negligence or any other tort, equity, restitution, strict liability, under statute or otherwise at all.

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10. Risk of claims

• If, after conclusion of the contract, it becomes apparent that our claim to counter-performance is jeopardised by the Purchaser’s inability to pay, the Purchaser shall provide security for his counter-performance if Purchaser is otherwise under no obligation to pay in advance. If our contractual obligation consists of a work performance, service, or delivery of a (common) good to be procured for the Purchaser which cannot be sold otherwise at any time, we may require the Purchaser to provide advance performance in the amount of our procurement costs or, at our option, in the amount of 50% of its counter-performance and to provide security for the remaining amount.
• In all other respects we may also refuse our performance if claims arising from the same legal relationship are at risk.
• If payment by instalments has been agreed, the entire remaining claim shall become due if the Purchaser is in default with at least two consecutive instalments in whole or in part.

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11. Retention of title

• We retain title to the items delivered by us until receipt of all payments from the entire business relationship. We shall be entitled to demand the return of the items without withdrawing from the purchase contract if the Purchaser is in default of payment of the purchase price in whole or in part.
• The Purchaser is obliged to treat the delivery item or the items otherwise owned or co-owned by us in accordance with the contract with care. In particular, Purchaser is obliged to insure them adequately at Purchasers own expense against damage by fire, water, theft and vandalism at replacement value. Insofar as maintenance and inspection work is necessary, Purchaser must carry this out in good time at Purchasers own expense.
• In the event of seizures or other interventions by third parties, the Purchaser must notify us immediately in writing. Insofar as the third party is not in a position to reimburse us for costs of an action, the Purchaser shall be liable for the loss incurred by us.

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12. Limitation of liability

• We are not liable for the completeness, accuracy or correctness of any information provided. Purchaser expressly agree that your use of the Services, including reliance on any Consultant’s Advice, is at Purchasers sole risk.
• We do not assist with dispute resolution between any you and any Consultant and are not obliged at any time to adjudicate on any such dispute. In the event of any dispute, you are responsible for contacting the relevant Consultant.
• We have no liability to Purchaser, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with these Terms (including but not limited to the use of, or inability to use, the Goods/Services) for:
• loss of profits, sales, business, or revenue;
• business interruption;
• loss of anticipated savings;
• loss or corruption of data or information;
• loss of business opportunity, goodwill or reputation; or
• any other indirect or consequential loss or damage.
• Nothing in these Terms shall limit or exclude our liability for death or personal injury resulting from our negligence, fraud; and/or any other matter in respect of which we are prohibited under applicable law from limiting or excluding our liability.
• These Terms set out the full extent of our obligations and liabilities in respect of the supply of the Goods/Services.
• Purchaser agrees to indemnify and hold us, our related corporations, and our respective directors, officers, employees, agents and representatives, independent contractors, licensees, successors and assigns harmless from and against all claims, losses, expenses, damages and costs (including but not limited to direct, incidental, consequential, exemplary and indirect damages), and reasonable legal fees, resulting from or arising out of your act, default or omission.

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13. Material defects and defects of title

• The purchaser’s rights in respect of material defects are subject to proper inspection and notification of defects.
• In the case of the purchase of used goods, the rights of the purchaser due to defects are excluded. This does not apply to claims arising from a guarantee or warranty given by us or if we have fraudulently concealed the defect. Furthermore, this does not apply to claims for damages. However, liability is excluded for claims for damages due to negligent defective delivery, except for damages resulting from injury to life, body or health, damages caused at least by gross negligence, damages falling within the scope of protection of a guarantee, or a warranty given by us, as well as claims under the Liability For Defective Products Act, 1991.
• We are entitled to remedy the defect at our discretion by repair or delivery of a defect-free item (subsequent performance). If the supplementary performance fails, the Purchaser may reduce the purchase price or, if a construction work is not the subject of the liability for defects, withdraw from the contract at his discretion. Our obligation to bear the expenses necessary for the purpose of subsequent performance or for taking back the replaced item, in particular transport, travel, labour and material costs, shall be excluded in any case insofar as the expenses increase because the purchased item has been taken to a place other than the recipient’s domicile or commercial establishment after delivery, unless the transfer corresponds to the intended use of the item.
• In the case of delivery of hardware and standard software of third party manufacturers as well as in the case of involvement of third parties in maintenance services, we may assign our corresponding claims against our supplier, the manufacturer or other third parties to the Purchaser for the purpose of rectification or replacement delivery. In this case, before asserting his right to subsequent performance by us, reimbursement of expenses after self-performance, damages in lieu of performance, withdrawal or reduction, the Purchaser must, if necessary, take legal action against our supplier or the manufacturer for subsequent performance, damages or reimbursement of expenses after self-performance, unless this is unreasonable for the Purchaser. If the purchaser incurs costs in this process which he is unable to recover from the supplier despite enforcement, we shall be obliged to compensate the Purchaser.
• The foregoing shall also apply if we have adapted, configured or otherwise modified the software or hardware for the needs of the Purchaser, unless the material defect has been caused by our performance.
• For any rectification of defects, the purchaser shall provide us with the information necessary to diagnose and rectify the defect, if necessary, upon request, and in the case of rectification by remote data transmission or telephone, provide us with a trained and competent employee to assist in the rectification. In the event of subsequent performance on site, we must be given unhindered access to the defective goods and, if necessary, other work on the hardware or in the network of the Purchaser must be stopped.
• The Purchaser is obliged to report any defects found in hardware or software in as detailed and reproducible a manner as possible.
• the Purchaser makes a claim for subsequent performance against us and if it turns out that a claim for subsequent performance does not exist (e.g., user error, improper handling of the goods, absence of a defect), the Purchaser shall reimburse us for all costs incurred in connection with the inspection of the goods and the subsequent performance, unless the Purchaser is not responsible for our claim.
• In the event of a system failure due to an error for which we are responsible, we shall restore the data to the state of the data backup last carried out by the Purchaser before the failure. The Purchaser shall provide the corresponding data in machine-readable form.
• If a claim is made against the Purchaser for infringement of the rights of third parties or for failure to continue to use the delivery item, the Purchaser must inform us of this immediately.

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14. Right of return

As a matter of principle, the Purchaser shall not be entitled to a contractual right of return. Something else shall only apply if we have expressly granted Purchaser a right of return in writing. Such rights of return shall only apply to tangible objects, i.e., in particular not to software delivered in an intangible form (not on CD/DVD). A claim to the granting of a right of return does not exist in any case. Goods returned without prior agreement of a right of return shall be rejected without exception. If we grant the Purchaser a right of return, this shall only apply to goods that have already been paid for. Excluded from any right of return are goods that are individually manufactured, configured, adapted, processed, on special offer, sold out, discontinued or otherwise deviating from the current series standard.

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15. Restrictions on use

The goods are provided for the intended use in accordance with the manufacturer’s instructions for use. Upon request, we shall make these instructions for use available to the Purchaser before the order is placed.

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16. Acceptance

• If acceptance is required by contract or by law, the following provisions shall apply.
• At our request, partial acceptances shall be carried out for definable parts of the delivery/service which can be used independently or for parts of the service on which further services are based, if the parts of the service to be accepted can be inspected separately. If all parts of the service have been accepted, the last partial acceptance shall also be the final acceptance.
• If the delivery of hardware or standard software is part of the service requiring acceptance, we shall be entitled to charge the Purchaser for this, irrespective of any acceptance of the rest of the service.

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17. Data protection

We process personal data in accordance with the statutory data protection requirements.

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18. Other important terms

• We may transfer our rights and obligations under a Contract to another organisation, but this will not affect Purchasers rights or our obligations under these Terms.
• Purchaser may only transfer your rights or your obligations under these Terms to another person if we agree in writing.
• This agreement is between Purchaser and us. No other person shall have any rights to enforce any of its terms.
• Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
• If we fail to insist that Purchasers performs any of your obligations under these Terms, or if we do not enforce our rights against Purchaser, or if we delay in doing so, that will not mean that we have waived our rights against Purchaser and will not mean that you do not have to comply with those obligations. If we do waive a default by Purchaser, we will only do so in writing, and that will not mean that we will automatically waive any later default by Purchaser.
• No joint venture, partnership or agency or employment relationship has arisen by reason of these Terms.
• These Terms and any document expressly referred to in it constitutes the entire agreement between the Parties regarding their subject matter, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between us, whether written or oral, relating to that subject matter. Purchaser agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms or any document expressly referred to in it. Purchaser agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms or any document expressly referred to in it.
• These Terms and the relationship between Purchaser and us shall be governed by and construed in accordance with the Law of Ireland, and you agree to submit to the exclusive jurisdiction of the Courts of Ireland.

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