1.1 All quotations and sales by Absolute Antibody NA (“AbAb”) are subject to and expressly conditioned upon the terms and conditions contained herein. By placing an order or requesting a quotation the purchaser consents to these terms and conditions.
1.2 If purchaser submits any order acknowledgement or other document that contains terms and conditions that are inconsistent with or in addition to the terms and conditions contained herein, those inconsistent or additional terms are specifically rejected by AbAb.
1.3 No variation of the terms and conditions contained herein will be binding upon AbAb unless agreed to in writing by an authorised representative of AbAb.
2 Purchaser disclosure and quality of provided materials
2.1 The purchaser warrants that prior to placing an order or requesting a quotation that they have provided AbAb with all relevant information to prepare an accurate quote or complete an order. This includes but is not limited to accurate sequences, sequence verified DNA vectors, information about previous expression yields and any previous unsuccessful attempts at completing this project.
2.2 If the purchaser provides inaccurate information, or fails to disclose relevant information, AbAb retains the right to amend the gross sales price to reflect the changes to the order or cancel the order in its entirety and charge one hundred (100) percent of the gross sales price of the original order. AbAb shall have no liability for any delays or any inappropriateness of the product supplied in such cases.
2.3 In situations where the purchaser provides starting materials, including but not limited to hybridoma cells, sequences and DNA vectors, the purchaser warrants that the quality, quantity and/or accuracy of the starting materials will be sufficient to enable timely completion of the order. If the starting material does not meet this criteria AbAb retains the rights to amend the gross sales price accordingly or cancel the order in its entirety and charge one hundred (100) percent of the gross sales price of the original order
3 Order changes and cancellations
3.1 Orders may be changed or amended only by written agreement by both parties, stating the particular changes and the effect, if any, on the price and time of delivery.
3.2 Purchaser may cancel an order only by providing written notice to AbAb. If no work towards the order has been performed by AbAb the order will be cancelled and the purchaser charged an administrative fee of five (5) percent of the gross sales price of the original order. If work towards the order has commenced by AbAb, cancellation of an order at any time shall result in an immediate charge of one hundred (100) percent of the gross sales price of the original order unless otherwise agreed in writing by an authorised representative of AbAb.
4 Delivery and acceptance
4.1 AbAb will use its reasonable commercial efforts to fulfil purchaser’s orders pursuant to any agreement for the supply of products.
4.2 AbAb will provide any advice and perform all services to the best of its knowledge and ability and in accordance with professional standards.
4.3 Purchaser may revoke acceptance of any shipment of products or services which are not in compliance with the specifications as provided set out in the order or accepted quotation within thirty (30) days from the date of delivery.
5 Prices and taxes
5.1 All taxes, duties, levies and similar expenses which are or become due in connection with an order with the exception of any taxes on AbAb’s profits are for the account of the purchaser.
6.1 For orders priced at less than 30000 GBP, EUR or USD payment is due without any deductions, discounts, set off or debt settlement within thirty (30) days of receipt of the product ordered. Where the order exceeds 30000 GBP, EUR or USD the purchaser will pay 25% on placing the order and the remaining 75% within thirty days of receipt of product as provided above.
6.2 If an invoice balance is overdue, without waiving any other rights and remedies at law or relative to any order, AbAb may: (a) refuse to accept additional orders; (b) refuse to ship ordered products or render further services; and/or (c) seek collection from purchaser, including all legal fees and other costs of collection.
6.3 AbAb, may in its sole discretion, and without notice to purchaser, change the terms of payment to payment in full or in part prior to shipment of the entire undelivered balance of said products.
6.4 In the event of default by purchaser in the payment of the purchase price or otherwise, purchaser agrees to pay the balance then due to AbAb on demand. Purchaser also agrees to pay the statutory interest from the due date until the date on which payment is made in full, and all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection resulting from any default by purchaser in any of the terms hereof.
7 Limited warranty and remedy
7.1 AbAb warrants to the purchaser for a period of thirty (30) days from the date of delivery, that the products shall conform in all material aspects to the specifications of AbAb, as provided in the relevant quotation, or on AbAb’s website or in other literature provided by AbAb; provided, however, that the products have been stored under the prescribed conditions during such warranty period.
7.2 AbAb’s duty under this warranty shall be to replace such portion of products as are proven to not conform to specifications as set out here above or, at AbAb’s option, rework such parts or products or have them repaired at AbAb’s order, always free of charge, provided that: (i) AbAb is informed by the purchaser in writing within ten (10) days after the defect(s) have been revealed; (ii) purchaser shall afford AbAb prompt and reasonable opportunity to inspects all products as to which any claim is made. The warranty does not cover damage sustained by normal wear and tear or any damage arising in consequence of negligence or improper handling or use of the products or parts thereof, or of improper storage in the event of the products wholly or partly being stored by the purchaser prior to use.
7.3 Except for the foregoing warranty AbAb expressly disclaims to the fullest extent permitted by law all warranties express or implied in relation to the products and associated services. Without prejudice to the foregoing generality AbAb does not warrant the merchantability or fitness for a particular purpose of the products or any aspect of their performance or that they or their use will not infringe the intellectual property rights of a third party.
8 Limited Liability
8.1 AbAb’s total liability in relation to this contract, the warranty contained herein and in relation to the products and services provided under or in relation to this contract whether arising in contract, tort or by some other theory of law or equity shall be capped at the amount paid by purchaser for the relevant products or services or 20000 GBP whichever shall be the greater.
8.2 In no event shall AbAb or its affiliates or their respective representatives be liable to the purchaser or its affiliates, whether based in contract, tort, warranty or any other legal or equitable grounds, for any loss of the income, profit or savings or cost of capital of purchaser or its affiliates, for any indirect or consequential damages resulting from or relating to the order or the products delivered or services provided hereunder, even if AbAb has been advised of the possibility of such damages.
8.3 Nothing herein shall limit AbAb’s liability for death or personal injury arising from its negligence or malfeasance.
9 Intellectual property
9.1 By entering into each and any contract, the purchaser acknowledges that all know how and intellectual property rights in respect of assays, reagents, antibodies, proteins, cell lines, vectors, working and testing methods, procedures and protocols originated or used by AbAb prior to any purchaser’s order or contract with purchaser, or as may be used or improved during the services hereunder, shall, as between the parties, be retained by AbAb (the “AbAb IP”).
9.2 Except for the AbAb IP, AbAb agrees that all materials, products, reports, information, discoveries, specimens or inventions, whether copyright patentable or not, arising from AbAb’s performance of services pursuant to an accepted order or contract for services, (collectively the “Results”) shall promptly be disclosed to purchaser and, subject to payment of all amounts due by Purchaser under such order or contract, purchaser will acquire all right, title and interest in and to the Results, and AbAb hereby irrevocably assigns, and transfers to Purchaser the entire right, title and interest of AbAb in and to the Results free from any liens or encumbrances. AbAb agrees to assign, and have any and all its personnel participating in the relevant services assign, all rights each and all may have in such Results to purchaser and execute any related documents purchaser may reasonably require to give effect to this clause.
9.3 In the event purchaser requires AbAb to perform services concerning products, materials or processes owned or to be owned by purchaser or third parties or unrevealed sources, AbAb shall be deemed granted a licence under purchaser or third parties’ intellectual property rights to perform same.
10 Purchaser’s use of products
10.1 AbAb products are intended for research use only and, unless otherwise approved in writing by an authorised representative of AbAb, are not to be used for any other purposes, including but not limited to, in vitro diagnostic purposes, food, drugs, medical devices or cosmetics for humans or animals.
10.2 AbAb reserves the right to refuse to accept any order where it reasonably believes that the products will be used for unauthorised purposes. AbAb reserves the right to refuse to accept any order where it reasonably believes that the products will be offered for resale or onward distribution by an unauthorised distributor or reseller.
10.3 Purchaser acknowledges that the products have not been tested by AbAb for safety and efficacy in food, drugs, medical devices, cosmetics or for commercial or any other use, unless otherwise stated in AbAb’s literature furnished to Purchaser. Purchaser assumes responsibility to assure that the products purchased from AbAb are approved for use under the law of the state or country of its residence. Purchaser has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using products purchased from AbAb. Purchaser agrees to comply with instructions, if any, furnished by AbAb relating to the use of the products and not misuse the products in any manner. No products purchased from AbAb shall, unless otherwise stated, be used as food, drugs, medical devices or cosmetics.
10.4 With the exception of cases when intellectual property rights for a product have been transferred to the Purchaser under clause 10.2, purchaser shall not: (a) decompile or reverse engineer any of the products or attempt to do so; (b) perform any studies to determine the structure, chemical composition, or other makeup of the products; or (c) make any copy, derivative or progeny of the product, nor permit or enable any third party to do so, unless and to the extent expressly permitted in any contract between AbAb and purchaser.
11 Purchaser’s representations and indemnity
11.1 Purchaser represents and warrants that it shall use all materials and other products ordered in a lawful manner.
11.2 Purchaser shall defend AbAb, its employees, agents, affiliates and Contractors (the “AbAb Indemnitees”), and shall indemnify and hold the AbAb Indemnitees harmless from and against all suits, actions, or proceedings, at law or in equity, and from all claims, costs, liability, damages, losses and expenses (including, without limitation, attorney’s fees, consultants’ fees, experts’ fees) of third parties that are related to or in connection with (1) products, process or related information, if applicable, being wrongfully disclosed by purchaser to AbAb or others hereunder, (2) infringement, misappropriation, and/or conversion as a result of AbAb possession and/or use of such products, process or related information disclosed by purchaser, (3) purchaser’s use or any third party’s use of the Results, whether or not used, applied, made available, licensed or sold in combination with or incorporated in other product or process, or (4) the death or bodily injury of any third party or the damage, loss or destruction of any tangible personal or real property arising from or related to purchaser’s use of products, or its manufacture or sale of any Results, products or utilizing of products or process.
12.1 Neither party shall disclose any confidential information of the other party to any third party, Each party shall (i) advise its employees of the proprietary nature of the confidential information and the terms and conditions of this Agreement requiring that the confidentiality of any such information be maintained and (ii) use all reasonable safeguards to prevent unauthorized use by such employees. Each party shall be responsible for any non-compliance with, or breach of, this Agreement by any of its employees to which it has disclosed the other party’s confidential information.
12.2 The obligations of confidentiality and non-use shall not apply to confidential information that the receiving party can demonstrate by contemporaneous, written or electronic documentation:
a) is in the public domain by use and/or publication at the time of its receipt from the other party or thereafter enters into the public domain through no breach of this Agreement by it; or
b) was already in its possession prior to receipt from the other party or is independently developed without use of, or reliance on, confidential information received hereunder; or
c) is properly obtained from a third party that has a valid right to disclose such confidential information and does not have a confidentiality obligation to the disclosing party.
12.3 In the event a receiving party is required to disclose any confidential information received under this Agreement in order to comply with any law, regulation or valid court order, such receiving party may disclose such confidential information only to the extent necessary for such compliance; provided, however, that such receiving party shall, to the extent permitted by law, give the other party reasonable advance written notice of the required disclosure to provide such other party with the opportunity to seek confidential treatment of any confidential information to be disclosed and/or to obtain a protective order to prevent disclosure or to narrow the scope of disclosure and shall reasonably cooperate with such other party’s efforts to seek confidential treatment of any confidential information to be disclosed and/or to obtain a protective order. Confidential information that is disclosed pursuant to such required disclosure shall remain otherwise subject to the confidentiality and non-use provisions set forth herein.
13 Force majeure
13.1 Delay in performance or non-performance of any obligation contained herein, other than purchaser’s obligation to pay, shall be excused to the extent such failure or non-performance is caused by force majeure. Force majeure shall mean any cause or event preventing performance of an obligation under the order or contract which is beyond the reasonable control of AbAb or purchaser, as the case may be, including without limitation, fire, flood, power shortage, mechanical breakdown, sabotage, shipwreck, embargo, explosion, strike or other labour trouble, accident, riot, acts of governmental authority (including, without limitation, act based on laws or regulations now in existence as well as those enacted in the future), acts of God. The party prevented to perform by force majeure shall promptly provide notice to the other party, explaining in detail the full particulars and the expected duration thereof and it shall use its commercially reasonable efforts to remedy the interruption or delay if it is reasonably capable of being remedied. In the event a force majeure situation extends for more than thirty (30) days, the order or contract may be terminated without any liability by either party upon written notice thereof to the other. In the event of a force majeure compelling AbAb to allocate production and deliveries of products, AbAb may allocate its available supply of products among AbAb customers (including purchaser) and AbAb internal uses in such manner as AbAb deems fair and reasonable. Such allocation shall not be deemed a breach of contract.
14 Governing law and venue
14.1 This Agreement shall be subject to and construed in accordance with the laws of Delaware. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
14.2 The exclusive venue for proceedings arising under this Agreement shall be a court of competent jurisdiction in Delaware.
Ordering & Shipping
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