1. In the general – interpretation
1.1. YONI Solutions LTD (YONI Solutions SA) (YONI Solutions AG) (the “Company” or “YONI Solutions”) is a Swiss corporation limited by shares, having its seat in Monthey, Switzerland and registered under the reference CHE-147.008.452.
1.2. These terms and conditions of the testing agreement (the “Terms”) apply to all services and/or products that YONI Solutions provides to the customer. Applicability of these Terms to the relationship does not require specific acknowledgment, especially as acceptance by the customer shall automatically derive from the use of the services provided by YONI Solutions.
1.3. YONI Solutions provides professional services for the purpose of analyzing microbiomes. By contrast, YONI Solutions (including its employees, corporate bodies and/or representatives) may not, under any circumstances, be referred to as a person or entity providing medical advice and/or recommendations concerning, directly or indirectly, human beings and/or their medical status or treatments.
1.4. According to Swiss law, subject to certain requirements, probiotics are considered as food supplements, just like vitamins or trace elements. Probiotic human foods are not governed under specific EU or Swiss regulatory frameworks.
1.5. The services provided by YONI Solutions could be integrated in the context of appropriate medical advice to be rendered by a qualified medical doctor. Accordingly, any reference to a “Customer” in these Terms must be construed as a reference to the end-user ultimately benefiting from the services while any reference to a “Doctor” must be construed as a reference to the qualified medical doctor (health/general Doctor) intervening as a health advisor to the Customer, on the basis of separate terms, to which YONI Solutions is not a party.
1.6. The Doctor shall be regarded by YONI Solutions as the authorized representative of the Customer in connection with any such services to be provided. As a result, when there is a reference to the Customer in these Terms, unless otherwise specifically set out, such reference shall be deemed to include the process which can be referred to as “directly and/or through the Doctor”.
1.7. In these Terms, the terms defined by using bold font between inverted commas and, as applicable, brackets, shall have the meaning ascribed to them when such typography is used (for the relevant term).
1.8. Unless otherwise specified, any reference in these Terms to “written”, “in writing” and/or any similar expression shall be regarded as (i) original handwritten communications and/or (ii) any communication circulated by e-mail to an e-mail address suitable in the context of the services provided by YONI Solutions.
1.9. In case all or part of these Terms are translated in any other language than English (irrespective of the source of such translation), the English wording shall prevail in any case.
2. Entry into the agreement
2.1. The validity of the agreement according to which the Customer orders certain services from the Company is not submitted to any specific form. Nevertheless, for the good standing of the respective records of the Company and the Customer, only terms and contents which may be evidenced in writing (including e-mails and/or similarly suitable electronic means of communication) shall be regarded as validly acknowledged and agreed among the Company and the Customer.
2.2. The agreement shall be valid and binding as from when the Company has confirmed in writing the services to be rendered, by reference to the terms set out in such confirmation.
2.3. Any binding agreement with the Company may not be terminated, canceled and/or rescinded by the Customer acting alone until the services have been fully provided by the Company. If, for any reason, the Customer requests in writing that services are interrupted prior to full completion, the Company may refrain from providing any unrendered services contemplated in the agreement it being, however, specified that no price reduction shall be applicable in any case.
3. Prices
3.1. All prices appearing in any document circulated by the Company are expressed in Swiss francs (CHF) and, unless otherwise specified, including VAT. If prices are made available by the Company to the Customer in any other currency than Swiss francs, such other currency shall be applicable and payable by such Customer (also by reference to the confirmation referred to in Section 2.2.
3.2. In principle, the applicable prices do not include third-party services and their specific remuneration (such as transport services). The Company may (but is not obliged to) pay any third party services for the benefit of the Customer, on the condition that repayment by the Customer to the Company shall occur upon first request.
4. Timing and terms
4.1. Subject to Section 4.2, the confirmation referred to in Section 2.2 shall include specific provisions dealing with the timing for effective completion of the services by the Company, subject for the Company to receiving the relevant information and material no later than the relevant term. In case any applicable term is not complied with, the Company shall provide its best efforts to provide its services expeditiously in the context of reasonable commercial arrangements.
4.2. In the absence of any indication, as referred to in Section 4.1, the applicable timings and terms shall be as appearing on the current and applicable official notice issued by the Company, in writing and/or through any website of the Company.
4.3. In any case, any failure by the Company to comply with the applicable timings and terms shall not give rise to any indemnification of the Customer, unless the Customer has previously (when the failure has been identified) and specifically notified in writing to the Company that if there is no remedy to the situation no later than 10 business days as from the date of receipt of such notice, the Customer shall terminate the order for services to be provided by the Company. In such circumstances, the only claim of the Customer against the Company may not exceed the amount of the agreed prices to be paid by the Customer for the services to be rendered by the Company in such case.
5. Completion of services
5.1. The Company shall be in a position to provide the services only if appropriate information and material is received at the location specified to the Customer in due time.
5.2. Any risks relating to transportation and/or communication shall be borne by the Customer.
5.3. In case of unexpected temporary unavailability, the Company shall inform the Customer as soon as reasonably practicable, including by providing an estimated and adjusted time schedule.
5.4. The services shall be deemed completed when the Customer has received the written outcome by reference to the services to be provided by the Company. Such outcome may be communicated (subject to availability) in writing and/or through any software made available by the Company to the Customer and included in the scope of the services.
6. Suspension or refusal of services
6.1. The Company may, but is not obliged to, request payment of the services by the Customer prior to performing its services.
6.2. Any Company’s request according to Section 6.1 may occur at any time. If corresponding payment does not occur in due time, the Company may, but is not obliged to, suspend and/or discontinue all or part of the services, without any liability of the Company.
6.3. Any suspension and/or discontinuation of Services by the Company in the context of this Section 6 may not trigger the liability of the Company, even if all or part of services may not be reactivated at a later stage.
6.4. Suspension and/or discontinuation of Services, with or without further reactivation does not affect the obligation of the Customer to pay the price for the services ordered in accordance with the payment request of the Company.
7. Third party services
7.1. Unless otherwise specified by the Company in writing in a specific case, any services to be provided by third parties in connection with the relationship between the Customer and the Company shall be performed with no responsibility of the Company.
7.2. In particular, any services involving software, remote access, website(s) and/or the use of any third party devices are not expected to be permanently available for the Customer. Unexpected and/or reasonable interruption of services shall be deemed to be acceptable and may not trigger the responsibility of the Company.
7.3. The Company is not authorized to represent the Customer towards any third party and the Customer is not authorized to represent the Company, in particular, vis-à-vis any third parties for which the Company has indicated in writing assuming responsibility towards the Customer.
8. Force majeure
8.1. In any force majeure situation (i.e. any situation in which the Company is prevented from performing its services in accordance with the contractual terms and in due time, for any reason beyond reasonable control of the Company), the Company shall provide its best efforts to inform, as soon as reasonably practicable, the Customer about the occurrence of such force majeure situation, including (if possible) expectations with respect to the effects and any available alternatives or next steps.
8.2. The occurrence of any force majeure situation may not trigger the liability of the Company. The obligations of the Company, and the corresponding obligations of the Customer, shall be automatically suspended for the duration of the effects deriving from any such relevant force majeure situation. The Company shall resume its services, to the extent it is useful and appropriate, as soon as reasonably practicable.
8.3. In case the occurrence of a force majeure situation prevents the reactivation of the services (and/or it is not useful nor appropriate), the Company and the Customer will discuss amicably a fair agreement taking into account, in particular, the portion of the services performed and the portion of the benefit of such services for each of the parties upon the occurrence of the force majeure situation.
9. Representations and Warranties
9.1. The Company will provide its written report to the Customer. Provided that the application instructions and requirements have been satisfied by the Customer, the Company represents that such report will accurately include the topics identified in the order submitted to the Company and approved.
9.2. For the avoidance of doubt, the Company does not represent and/or promise any clinical outcomes per se.
9.3. The components selected by the Company, as included in the assay, are based on literature revision and internal results and are not linked to any recommendation of the Company.
9.4. Except for the representations and warranties set out in this Section 9, no other representations and/or warranties are made or given by the Company and, in particular, any implied and/or interpreted representations and/or warranties are specifically excluded.
10. Specific provisions concerning liability
10.1. Collecting the sample must be made in accordance with the instructions and requirements of the Company. In the event that collecting is delegated to any other person than the Customer, such delegation shall be with no responsibility of the Company. If the Customer intends to collect and/or prepare on her own the sample and/or the analysis, subject to different views from the Doctor (as applicable, to be expressed prior to the collection and/or preparation), this will be feasible under the entire responsibility of the Customer.
10.2. The Company may not be held responsible for any miss collected sample, in particular, if it may disrupt any of the results to be included in the report to be issued by the Company.
10.3. The sampling instructions are made available by the Company to the Customer and/or, as appropriate, to the Doctor for the ultimate use with/by the Customer.
10.4. The Company is not responsible for any information shared (i) by the Customer regarding her own analyses results and/or (ii) by the Doctor. The Doctor has the autonomy to share any information deemed by the Doctor to be appropriate.
10.5. Any recommendation submitted by the Doctor to the Customer, in particular, based on the analysis and report implemented by the Company, is under the exclusive responsibility of the Doctor.
10.6. The Customer and/or the Doctor identifying any issues and/or nonconformities in connexion with the services to be provided by the Company is required to immediately notify in writing such situation to the Company. The Company will not assume any liability and/or effects deriving from the absence of such immediate notification to the Company.
10.7. The Company has contracted insurance to cover any third-party claims (professional civil responsibility) which might derive from the services to be provided by the Company. The Company shall have no other liability towards the Customer and/or the Doctor than to request effective coverage of any relevant matter by the insurance company. In particular, in case that the insurance company does not agree upon effective coverage of any relevant matter, the liability of the Company towards the Customer and/or the Doctor may not exceed the amount of the agreed price to be paid by the Customer for the services to be rendered by the Company in such case.
11. Intellectual property
11.1. The Company is, and shall be, at all times the exclusive owner of any intellectual property rights in connection with its products, services and activities. Such intellectual property rights include (without limitation) any patents, copyrights, trademarks, know-how, methods, concepts and any similar rights, whether already registered, in the course of registration and/or unregistered.
11.2. Any content (kit, sampling, material, information, communication, etc.) made available by, and/or on behalf of, the Company in connection with the services which may be provided by the Company, may not be used and/or circulated to any third party, unless prior written approval of the Company is obtained.
12. Personal Data
12.1. In the course of the entry into the relationship with the Customer and when providing its services, the Company will process personal data concerning the Customer. Unless specifically approved by the Customer, such personal data shall not be used for any other purpose than the provision of services by the Company.
12.2. The Customer shall provide true and accurate personal data to the Company, including any third party’s personal data authorized for disclosure in the course of the relationship with the Company. As appropriate, the Customer shall immediately and spontaneously update such personal data (as previously disclosed to the Company).
12.3. The Company shall process such personal data in compliance with Swiss law requirements. The Customer is informed that she has certain rights in connection with such personal data which includes the right of access, to rectify, to erase, to restrict processing, to data portability and the right to object against unauthorized data processing.
12.4. In the course of the performance of its services, the Company may also (separately) anonymize all or part of the personal data to the Company. Such anonymized data shall belong exclusively to the Company, including, for the avoidance of doubt, any data concerning samples and/or residual materials (when the services have been completed).
13. Other terms and conditions
13.1. The Company may provide the Customer with additional documents, recommendations, and/or instructions in the context of the testing agreement (the “Other Terms and Conditions”).
13.2. Those Other Terms and Conditions shall be automatically included through the implementation of the testing agreement by the Company, for the purpose of allowing the Customer to receive efficient and reliable services. Unless the Customer rejects immediately any of such Other Terms and Conditions, the latter shall be included in the testing agreement, provided that any such Other Terms and Conditions may not adversely affect the legal situation of the Customer as a result of such inclusion.
14. Governing law and jurisdiction
14.1. The relationship between the Company and the Customer (including, as appropriate, the Doctor) shall be exclusively submitted to the laws of Switzerland.
14.2. These Terms shall be subject to and governed by the laws of Switzerland.
14.3. All disputes arising from, or in connection with, the relationship between the Company and the Customer (including, as appropriate, the Doctor) and/or these Terms that the parties cannot resolve themselves, including any dispute over the application, validity, construction, or interpretation of these Terms, shall be submitted to the exclusive competence of the ordinary courts competent by reference to the seat of the Company, in Monthey (Switzerland).
