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).