Terms of Conditions

General Terms and Conditions of the BioMosaiques Software GmbH for the Online Data Analysis Service MosaiquesVisuOnline

Art. 1 Conclusion
For agreements for which the BioMosaiques GmbH (in the following called BM) acts as service provider for the analysis of data of mass spectra, there will apply only these business conditions.

Deviating regulations in the General Business Conditions of the customer will only apply if BM recognized them expressly in writing.

Offers of BM in prospectuses, advertisements etc. as well as quotations of prices, are subject to confirmation and not binding, unless an explicitly binding assurance has been made. Oral side agreements are ineffective. Alterations of the Conditions, inclusive this written form clause, have to be made in writing.

Art. 2 Scope of services
The scope of services of BM depends on the performance specifications and rates defined upon conclusion of the contract as well as on the following provisions.

The Online Data Analysis Service MosaiquesVisuOnline (in the following called MVO) offers the evaluation of CE- and HPLC-separated mass spectra (MS), supplied by the customer, with regard to protein and peptide signatures. The one-time analysis of a data record will be understood as one evaluation. As data record are considered the data of a CE/MS or a HPLC/MS measurement (raw data) which have to be present in a certain format according to the service description defined upon contract conclusion.

BM carries through for the respective legal entity inclusive all Holding and Subsidiaries, one time three demonstration evaluations at no charge to demonstrate the scope of services of MVO. For a deviation from this regulation, which BM reserves in the individual case, the express prior approval of BM is needed. Decisive for the scope of services of MVO are the three demonstration evaluations.

The result of an evaluation - delivered by BM in the scope of MVO – includes all proteins, peptides and other present substances and fragments identified in the mass spectrum in the form of an ASCII table, which is provided online to the customer on the MVO Webserver after the evaluation has been finished. Each entry (proteins, peptides as well as other present substances and fragments) in the summary table are characterized by the following details:

1. Mass/charge
2. Mass
3. Charge
4. Migration time (CE) or retention time (HPLC)
5. Signal-Counts in the mass spectrum

Signals are analysed up to a signal-to-noise ratio (SNR) determined by BM, in a mass/charge respectively mass interval determined by BM and in maximum 1500 successive mass spectra per evaluation.

Signals outside this specification will not be considered.

Signals which, with regard to the individual question of the customer, are of no significance will not be separately filtered out, unless this option was not agreed upon with the customer.

As agreed-upon are considered evaluation parameters which in the scope of the Online subscription of data analyse orders are adjustable by the user, as well as separate agreements in writing between the customer and the BM.

BM reserves the right to modify, extend or improve the services. BM especially reserves the right to modify the subject of its service with respect to the technique as far is this will be deemed reasonable for its customers under consideration of its own interests and as far as this seems to be necessary to achieve the purpose of the contract.

Should BM be forced to modify the duties under contract essentially in order to meet the needs of the customer, then BM will have the right to invoice the customer the necessary additional expenditure. This also applies to an extensive examination, whether and on what terms the modification or extension will be realizable as far as BM pointed it out in writing.

In case BM will provide additional services of no charge (e.g. consultation or technical support) then BM can stop same by advance notice at any time or declare that BM will invoice the service in future on the basis of the general valid wage rages of BM.

Art.3 Prices
List prices valid at the time of the activation of MVO for the customer shall apply.

The prices do not include the statutory Value Added Tax. Unless otherwise agreed, training and other additional services shall not be included in the price.

Additional services which are not included in the price list or in the offer shall be reimbursed separately. This shall apply, in particular, to additional expenditure due to

a) necessary and reasonable services rendered by third parties;
b) test and research services and legal examinations retained; as well as
c) services rendered outside of business hours.

Current list prizes are 150 € for a single data evaluation and 35.000 € per year for unlimited use. For additional prize quotes, please contact service@proteomiques.com.

Art. 4 Billing, payment and activation
Payment shall be made in advance by remittance.

Within 24 hours upon receipt of payment the online access for MVO will be activated for the number of ordered and paid evaluations.

BM does not assume any liability for the unauthorized or abusive use of the access password.

Art. 5 Service provision, terms and service obstacles
The evaluation of the raw data as well as the provision of the results on the MVO Webserver is made within 48h, provided that the transferred raw data format can be imported properly on the evaluation software.

The MVO evaluation is deemed to be completed when the summary table is available on the MVO Webserver. Thereby BM does not warrant the correctness of the results nor other features.

Not supported data formats can be considered by BM after consultation with the customer and adaptation of the data import filter. The processing time being necessary for the evaluation of these raw data is in the discretion of BM.

Should BM be not in a position to provide at all or at due date its contractual services because of industrial actions, force majeure or other circumstances lying beyond the control of BM, then this will not result in adverse legal consequences for BM.

BM does not assume any warranty that the online services will be accessible always without any interruption or that stored data are preserved under all circumstances. Especially, BM is not liable for disturbances in the public telecommunication network.

If the customer orders complex modifications or additions, then those dates and terms which are oriented towards the original object of agreement, will become invalid.

Art. 6 Obligation to co-operate
The customer is obliged to put the services of BM only to its proper use. When making use of such services, the customer has to refrain from any offence against provisions of law as well as from any abuse. He is especially committed

1. to announce BM each change of its intentions of use, which could be of importance for the contractual relationship and the services of BM;
2. to observe all general valid rules which apply to the use of the Internet;
3. to keep BM free of any liability against third parties, which are based on the fact that the use of the BM services through the customer violated the rights of a third party or legal provisions; this also applies to the use of the evaluations and other services provided by BM;
4. to keep secret of the logon and access data opposite third parties.

Art. 7 Rights of use
BM grants the customer a simple, non-transferable right of use within the scope of the indicated contractual purpose which will become extinct at the end of the contract. The customer acquires this right when having paid BM the full sum of its services. BM assumes, that, when using the data of the customer, these will not be charged with rights of a third party and that the customer disposes of the necessary rights of use for the order.

BM will use for MVO also the rights of third parties (foreign licence material). This can lead among others that foreign licence material is no more available or only available at significantly changed conditions, whereupon BM has no influence. In this case BM will try its best to use similar material in order to carry out the order.

However in these cases there cannot be given a warrantee for the performance of the order.

Only the customer and its employees are entitled to use the services of BM. An use by other third parties, especially the resale of these services, requires the prior written approval of BM.

Art. 8 Further utilization rights
The results received by MVO may only be used for non-commercial purposes. If a commercial utilization is intended, then the customer is obliged to inform BM accordingly before making use of MVO. A commercial use is not allowed unless BM agrees upon a special right of use.

BM grants this special right of use by agreement also to commercial users with reference to the following further utilization rights of BM.

BM will receive upon his choice for all disease and/or biomarkers, i.e. proteins, peptides as well as other present substances and fragments which were identified with the help of MVO and whose occurrence in a sample is specific for the presence of a certain disease or another biological characteristic, a sole and absolute right of use.

Art. 9 Copyright, Copyright notices and reference proofs
The copyright on the programs developed by BM remains principally with BM.

The use of MVO has to be indicated in publications.

Art. 10 Warranty
It is guaranteed that the evaluation will be made according to the demonstration evaluations.

BM gives no warranty that the requirements of the customer will be met. BM does not take over any warranty for freedom of defects, for the correctness of the provided evaluation and does not warrant any other features.

Art. 11 Liability
BM is liable without limitation for defects of title and for the absence of guaranteed properties according to the demonstration evaluations. The liability according to the Law on Product Liability remains untouched.

BM is liable for wilful or grossly negligent violations of contract on the part of its legal representatives and vicarious agents.

BM does not assume any liability for the loss of data, which will be supplied to BM within the scope of MVO. BM also does not assume any liability for direct or indirect consequences resulting from the use of the results provided through MVO.

Art. 12 Data protection and nondisclosure
BM will store the data of the customer (e.g. address, bank details, raw data), being required for the contract initiation and processing, according to the provisions of the Telecommunication Bill and BM obliges itself to do not make them accessible to third parties – except for parent and subsidiary companies of BM – and to protect them according to the state of art from the abusive access of third parties. Both parties will treat confidentially those informations which are denoted as confidential ones and which they will get to know within the scope of the contract.

Art. 13 Cancellation
The contract terminates automatically after BM has provided the evaluations due.

Logon and access data of the customer may – upon the discretion of BM – remain valid further, but do not have to do so.

The right of cancellation for cause will remain untouched. Especially in case of an infringement of Art. 8 (Further utilization rights).

Art. 14 Applicable law and Place of performance
The contractual parties agree, that German Law shall be applied for all privities of contract resulting from this contractual relationship.

It is agreed, that the place of performance for all mutual performances out of the contract will be Hannover. Court of exclusive jurisdiction will be in each case the factually competent court in Hannover.

Art. 15 Escape clause
In case one or several provisions of the contract are void or are becoming void, then this shall not effect the validity of the remaining provisions. The contractual partners will replace the void provision by such a valid one which is coming most closely to the economic intention of the partners.

Date: 1.10.2004