GENERAL CONDITIONS OF SALE
1.1 All quotations and sales by ModiQuest Research B.V. (“ModiQuest”) are subject to and expressly conditioned upon the terms and conditions contained herein, and upon purchaser’s consent thereto.
1.2 If purchaser submits any acknowledgment of the order or other document that contains terms and conditions that are inconsistent with or in addition to the order or these terms and conditions, those additional or inconsistent terms are specifically rejected by ModiQuest and ModiQuest hereby objects to any such terms and conditions.
1.3 No variation of these terms and conditions will be binding upon ModiQuest unless agreed to in writing through non-electronic means and signed by an officer or other authorized representative of ModiQuest and shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns.
2 Order Changes and Cancellations
2.1 Orders arising hereunder may be changed or amended only by written agreement signed by both purchaser and ModiQuest, setting forth the particular changes to be made and the effect, if any, of such changes on the price and time of delivery.
2.2 Purchaser may cancel an order only by providing written notice to ModiQuest at least 14 calendar days prior to the scheduled products delivery date or start of the services. Cancellation of an order at any other time shall result in an immediate charge of hundred (100) percent of the gross sales price of the original order.
3 Delivery and Acceptance
3.1 ModiQuest will use its reasonable commercial efforts to fulfill purchaser’s orders pursuant to any agreement for the supply of products.
3.2 All products ordered by purchaser pursuant to an order shall be delivered Ex-Works. ModiQuest’ shipping point in the Netherlands. Products shall be deemed accepted upon delivery. Purchaser may revoke acceptance of any shipment of products, which are not in compliance with the specifications as provided under warranty herein. In order to revoke acceptance, purchaser must pay for the shipment as provided in Section 5 and comply with the provisions of Section 7.
3.3 ModiQuest will provide any advice and perform all other services, if any, to the best of its knowledge and ability and in accordance with professional standards.
4 Prices and Taxes
4.1 Unless otherwise stated, prices are without engagement and may be altered by ModiQuest to those ruling at the date of despatch. Should the prices be increased in consequence thereof, then upon receipt of ModiQuest’s notification of such price-increase purchaser shall have the right to cancel the order in respect of the products which have not yet been despatched.
4.2 All taxes, duties, levies and similar expenses, which are or become due in connection with ModiQuest’s quotation, contract or any order resulting therefrom and the carrying out thereof are for ModiQuest’s account as far as they are due in the supplier’s country, and for the account of purchaser as far as they are due in purchaser’s country or in such other country or countries for which the products are destined or in which any services will be performed, irrespective of which party (including its representatives /employees) will be liable to pay such taxes.
5.1 Purchaser shall pay all invoices for products ordered by and delivered to purchaser without any deductions, discounts, set off or debt settlement within thirty days of the receipt thereof in the official European currency. If an invoice balance is overdue, without waiving any other rights and remedies at law or relative to any order, ModiQuest 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.
5.2 If the financial condition of purchaser results in the insecurity of ModiQuest, in its sole discretion, as to the ultimate collectability of the purchase price, ModiQuest may, without notice to purchaser, delay or postpone the delivery of the products; and ModiQuest, at its option, may change the terms of payment to payment in full or in part prior to shipment of the entire undelivered balance of said products.
5.3 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 ModiQuest 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.
6 Product ownership and Retention of title
6.1 Antibodies produced, and the reagents subsequently supplied or other products delivered by ModiQuest to purchaser shall become the property of purchaser subject to Section 6.2.
6.2 Title to and ownership of antibodies produced, and reagents subsequently supplied or other products delivered to purchaser shall be retained by ModiQuest until ModiQuest has received payment in full. Until the moment of full payment of all products delivered, purchaser shall not be authorised to give or permit third parties the use of the Products, to rent or pledge, to transfer the title or to alienate or encumber same in any other way.
7 Limited Warranty and Remedy
7.1. ModiQuest warrants to purchaser for a period of thirty (30) days from the date of delivery, that the products, when shipped to purchaser by ModiQuest, shall conform in all material respects to the specifications of ModiQuest, as provided on ModiQuest’s web-site or in other literature provided to purchaser by ModiQuest; provided however, that the products must be stored under the prescribed conditions during such warranty period.
7.2. ModiQuest’s duty under this warranty shall be to replace such parts or products as have proved to not conform to specifications as set out here above or, at ModiQuest’s option, repair such parts or products or have them repaired at ModiQuest’s order, always free of charge, provided that (i) ModiQuest is informed by purchaser in writing (including telefax) within fourteen days after the defect(s) have revealed themselves (ii) purchaser shall afford ModiQuest prompt and reasonable opportunity to inspect all products as to which any claim is made that such products do not conform to the warranties provided herein, (iii) at ModiQuest’ option, purchaser shall either allow ModiQuest to take control of such products and direct their disposal or, upon receipt of shipping instructions from ModiQuest, purchaser shall return to ModiQuest, at ModiQuest’s cost, all products allegedly not conforming to the specifications as warranted; provided, however, in the event that it is subsequently determined that such products do in fact conform to the specifications in all material respects, purchaser shall reimburse ModiQuest for all such shipping costs incurred by ModiQuest, and (iv) defective parts and products shall become ModiQuest’s property as soon as they have been replaced. 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 installation or of maintenance by unauthorized persons, or of improper storage in the event of the products wholly or partly being stored by purchaser previous to installation or use
7.3. Except for the foregoing warranty, ModiQuest does not warrant the merchantability or fitness for a particular purpose of the products or the performance or noninfringement thereof, does not make and hereby expressly disclaims any warranty, express or implied, with respect to the products, specifications, support, services or anything else relating to the products and does not make any warranty to purchaser, purchaser’s customers or their agents concerning the products and services.
7.4. If the services include the discovery of an antibody, the result is dependent on the antigenicity of the material provided by purchaser. ModiQuest does not warrant that the antibodies developed by ModiQuest apply in a particular technique or that the material supplied by purchaser is immunogenic.
7.5. In addition, ModiQuest does not warrant that the use or sale of the products delivered hereunder will not infringe intellectual property rights covering the product itself or the use thereof in combination with other products or in the operation of any process.
8 Limited Liability
8.1. Purchaser acknowledges and agrees that ModiQuest’ warranty undertaking pursuant to Section 7.2 or with any agreed modification thereof shall be ModiQuest’s sole liability and purchaser’s sole and exclusive remedy relative to any product or related services.
8.2. In the event ModiQuest fails to perform any of its services in accordance with Section 3.3, or in the event of any other breach of contract or tort, or it agrees with purchaser in writing that no warranty shall be provided under Section 7.2, ModiQuest’s liability shall not exceed the amount paid by purchaser for the defective products or services under the order or contract concerned.
8.3. To the extent the above exclusions or limitations of liability are not permitted under applicable law, ModiQuest’s liability to purchaser, whether based on contract, tort or other theory or concept, shall at no time exceed Euro 25,000.
8.4. In no event shall ModiQuest or its affiliates or their respective representatives be liable to 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 ModiQuest has been advised of the possibility of such damages.
9 Purchaser’s Use of Products
9.1 ModiQuest’ products are intended primarily for laboratory research purposes and, unless otherwise stated on product labels, on ModiQuest’ web-site or in other literature furnished to purchaser by ModiQuest, 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.
9.2 Purchaser acknowledges that the products have not been tested by ModiQuest for safety and efficacy in food, drugs, medical devices, cosmetics or for commercial or any other use, unless otherwise stated in ModiQuest’s literature furnished to Purchaser. Purchaser realizes that, since ModiQuest’ products are, unless otherwise stated, intended primarily for research purposes, they may not be listed on the United States Toxic Substances Control Act (TSCA) inventory or similar inventory in any other country. Purchaser assumes responsibility to assure that the products purchased from ModiQuest 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 ModiQuest. Purchaser agrees to comply with instructions, if any, furnished by ModiQuest relating to the use of the products and not misuse the products in any manner. No products purchased from ModiQuest shall, unless otherwise stated, be considered to be food, drugs, medical devices or cosmetics.
9.3 Notwithstanding purchaser acquiring ownership of any product (other than Results of services under Section 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 ModiQuest and purchaser.
10 Intellectual Property Rights
10.1 By entering into each and any contract, purchaser acknowledges that all know how and intellectual property rights in respect of assays, reagents, antibodies, working and testing methods, procedures and protocols originated or used by ModiQuest prior to any purchaser’s order or contract with purchaser, as may be used or improved during the services hereunder, shall be retained by Modiquest (the “Modiquest IPR”).
10.2 Except for the ModiQuest IPR, ModiQuest agrees that all materials, reports, information, discoveries, specimens or inventions, whether copyrightable, patentable or not, arising from ModiQuest’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 ModiQuest hereby irrevocably assigns, and transfers to Purchaser the entire right, title and interest of ModiQuest in and to the Results free from any liens or encumbrances. ModiQuest 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.
10.3 In the event purchaser requires ModiQuest to perform services concerning products, materials or processes owned or to be owned by purchaser or third parties or unrevealed sources, ModiQuest shall be deemed granted a license under purchaser or third parties’ intellectual property rights to perform same.
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 ModiQuest, its employees, agents, affiliates and Contractors (the “ModiQuest Indemnitees”), and shall indemnify and hold the ModiQuest 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 ModiQuest or others hereunder, (2) infringement, misappropriation, and/or conversion as a result of ModiQuest’ 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 (3) 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 Force Majeure
12.1 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 ModiQuest or purchaser, as the case may be, including without limitation, fire, flood, power shortage, mechanical breakdown, sabotage, shipwreck, embargo, explosion, strike or other labor 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 ModiQuest to allocate production and deliveries of products, ModiQuest may allocate its available supply of products among ModiQuest’ customers (including purchaser) and ModiQuest’ internal uses in such manner as ModiQuest deems fair and reasonable. Such allocation shall not be deemed a breach of contract.
13 Governing Law and Venue
13.1 This Agreement shall be subject to and construed in accordance with the laws of the Netherlands. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable
13.2 The exclusive venue for proceedings arising under this Agreement shall be a court of competent jurisdiction in Arnhem, the Netherlands.
ModiQuest Research General Conditions of Sale version 180223