Term and Conditions of Sale
- Introductory Provisions
- All quotations and sales by Cytognos, S.L. (hereinafter “CYTOGNOS”) 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.
- In the event of a conflict between the terms and conditions set forth herein and terms and conditions contained in a specific agreement concluded by and between any third party acting as a purchaser (hereinafter the “Purchaser”) and CYTOGNOS (hereinafter the “Agreement”), terms and conditions contained in the Agreement shall prevail over the terms and conditions set forth herein
- The agreement between CYTOGNOS and the Purchaser is created when CYTOGNOS accepts the purchase order, either by sending a written confirmation, or by shipping the product or otherwise initiating action to provide the Purchaser what he has ordered.
- Term and Conditions of Purchase and Sale
- Any purchase may submit an Order for the products to CYTOGNOS. Any Order shall be delivered to CYTOGNOS either by e-mail, fax or through e-shop (only for distributors) available on CYTOGNOS website: http://www.cytognos.com (hereinafter the “Order”). Each Order shall contain at least the following specifications:
- A detailed specification (including the complete reference number) and quantity of the ordered products;
- A delivery address for delivery of the ordered products;
- A contact person plus the relevant e-mail address and phone number;
- An invoice address; and
- Any further requirements and instructions (such as a Purchaser´s order number, delivery date, specific packaging or delivery related requests, a carrier account number, etc.).
Order contact details:
Polígono La Serna, Nave 9, 37900
Santa Marta de Tormes, Salamanca
- All orders delivered to CYTOGNOS are binding on the Purchaser and may not be unilaterally changed, altered, modified or cancelled by the Purchaser.
- All Orders duly made by the Purchaser are subject to acceptance by CYTOGNOS and no Orders are binding upon CYTOGNOS unless and until accepted by CYTOGNOS. CYTOGNOS may accept Orders, upon its sole discretion (for the avoidance doubt, CYTOGNOS is entitled not to accept any Order issued by the Purchaser), by sending an e-mail to the e-mail that it accepts the Order (hereinafter the “Acceptance” or “Accepted Order”). Upon Acceptance of the Order by CYTOGNOS, the respective Accepted Order cannot be unilaterally changed, altered, modified or cancelled by the Purchaser or CYTOGNOS.
- The Purchaser explicitly acknowledges that the sale of the Product by CYTOGNOS to the Purchaser (upon its Order) is, among other aspects, always subject to the current availability. Furthermore, CYTOGNOS is under no circumstances obliged to sell and deliver to the Purchaser the Products exceeding the quantity specified in the Accepted Order.
- Other Changes and Cancellations
- Orders may be changed or amended only by agreement by both parties (CYTOGNOS and the Purchaser), stating the particular changes and the effect, if any, on the price and time of delivery.
- Purchaser may cancel an order only by providing written notice to CYTOGNOS. If the product has been sent by CYTOGNOS, Purchaser shall be charged the gross sales price of the original order unless otherwise agreed in writing by an authorized representative of CYTOGNOS.
- Price and Payment Term and Conditions
- The products shall be sold by CYTOGNOS to the Purchaser at the prices stated in the official price list at the time the respective Order is duly made and delivered to CYTOGNOS. The prices or any other aspect related with the price (as a discount) might be agreed by both parties by written agreement.
- The prices set out in the price list of CYTOGNOS products are exclusive of any freight or insurance charges in connection with any products, or any taxes, excises, duties, tariffs or other charges which may be collected by any government body in connection with any products, or any costs and charges due to specific packaging requests (e.g. dry ice) made by the Purchaser (hereinafter the “Charges”). The Purchaser shall be responsible for payment of all such Charges, and any specific tailor-made packaging shall be charged to the Purchaser in addition to the price for the relevant products, unless mutual written agreement of the Parties. The prices contained in the Price list include costs of packaging for the most commonly used package sizes and types.
- The prices for the products are payable by the Purchaser on the basis of invoices (tax documents) issued by CYTOGNOS in compliance with the application legislation. CYTOGNOS shall issue and send the invoices in respect of purchases of the products by the Purchaser to the delivery address as specified in the relevant Order.
- The payment shall be done as agreed by the Parties (e.g. in case of selling products to a distributor) by written agreement and also the way of doing the payment. CYTOGNOS shall be entitled, at its sole discretion, to require on a case by case basis pre-payment (advance payment) of the price for the products.
- Delivery Terms and Conditions
- CYTOGNOS shall label and package the products. CYTOGNOS shall accompany the products with the relevant instruction manuals and related documentation.
- The cost of transportation will only be included in the price of the products if it exists written agreement of the Parties. CYTOGNOS shall deliver the products to the Purchaser in accordance with the Accepted Order. Unless it is set forth in the Accepted Order otherwise, the products shall be delivered to the Purchaser by courier services (e.g. UPS, FedEx, TNT or DHL).
- Liability for Defects
- CYTOGNOS shall deliver the products to the purchaser in the agreed quantity and corresponding to its specification contained in the Product Datasheet/Instructions for Use for the period indicated on the products and/or its packages (hereinafter the “Expiration Period”).
- The Purchaser shall be obliged to inspect the products immediately after delivery thereof.
- The Purchaser shall notify the defects of the products to CYTOGNOS in writing without undue delay after its detection, nevertheless within the Expiration Period. The notification shall include at least description of the claimed defects, the Accepted Order number, invoice number, the products reference number and the batch of the relevant products and shall be accompanied with evidence of such defects.
- If any issue is detected by the Purchaser, both Parties will collaborate to identify the specific problem or defect of the products and to determine which party may cover the corresponding costs (if applicable). CYTOGNOS shall not be liable for any defects of the products caused by or arising from:
- Improper storage and/or handling and/or use of the products.
- Any change or modification to the products that was carried out by the Purchaser or any third person.
- The external factors outside of the control of CYTOGNOS.
- Only those products which have been used in conformity with the relevant Product Technical Documentation issued by CYTOGNOS may be subject to claims. Other use of the products shall exclude any claims whatsoever.
- Product Ownership and Retention of Title
- Title to and ownership of products delivered by CYTOGNOS to the Purchaser shall be retained by CYTOGNOS until CYTOGNOS has received payment in full.
- To the maximum extent permitted by applicable law, CYTOGNOS will not be liable under any legal theory (including but not limited to contract, negligence, strict liability in tort or warranty of any kind) for any indirect, special, incidental, punitive, multiple, exemplary or consequential damages (including but not limited to costs of cover, lost profits, lost data, loss of business, loss of goodwill or loss of revenue) that the Purchaser might incur under the agreement, or that may arise from or in connection with the products or services of CYTOGNOS, even if CYTOGNOS had notice of the possibility of such damages. In addition, CYTOGNOS maximum aggregate liability arising out of or in connection with the Agreement, or any product or service is limited to the amount the Purchaser paid to CYTOGNOS for the product or service purchased.
- For avoidance of doubt, CYTOGNOS shall under no circumstances be liable to any third party for any damages caused to such third party by Purchaser´s breach of its´ obligations hereunder and/or the applicable Agreement and/or under applicable law, including, without limitations, resulting from:
- Breach of transport or storing conditions by the Purchaser.
- Use of unapproved version of any (technical) material by the Purchaser.
- Any interference with labeling or integrity of the product by the Purchaser.
- In all such cases, the Purchaser shall be fully liable for any damages caused to or incurred by any third party.
- Furthermore, CYTOGNOS shall not under any circumstances be liable for any damages caused by misuse or misapplication of the product(s) by any third party. Any deviation from the relevant instruction manual, non-compliance with storage and safety instructions and rules by end-user especially (but not exclusively) constitute misuse or misapplication of the product(s) within the meaning of the previous sentence of this clause.
- Without prejudice to any other provisions hereof, CYTOGNOS shall be liable to the Purchaser for damages (other than consequential damages which are entirely and unconditionally excluded) arising out or related to any breach by CYTOGNOS of its obligations hereunder and/or under the applicable Agreement up to the price paid by the Purchaser for the products delivered pursuant to the Agreement in relation to which the damage was caused.
- Nothing herein shall limit CYTOGNOS´ liability for death or personal injury arising from its negligence or malfeasance.
- Intellectual Property
- 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, working and testing methods, procedures and protocols originated or used by CYTOGNOS 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 CYTOGNOS (hereinafter the “Cytognos IP”).
- In the event purchaser requires CYTOGNOS to perform services concerning products, materials or processes owned or to be owned by the Purchaser or third parties, all the information related to intellectual property shall be agreed between the Parties by written agreement.
- Prohibition of Resale of the Products; Prohibition of Modifying the Products
- Purchase does not include or carry any right to resell or transfer any product either as a stand-alone product or as a component of another product. Any use of the products other than permitted use without the express written authorization of CYTOGNOS is strictly prohibited.
- The products cannot be under any circumstances modified in any way, especially shall not be used to develop and produce any product, unless agreed in writing between CYTOGNOS and Purchaser otherwise.
- Product Use Limitations
- The products labeled as “FOR RESEARCH USE ONLY” are not intended for diagnostic, therapeutic or any in vivo use in human subjects, unless explicitly indicated in the relevant technical documentation or at the product´s package otherwise.
- The products labeled as “IVD” and including the CE (Conformité Européenne) marking are intended for In Vitro Diagnostic use within the European Union and countries with EU conformity recognition agreement.
- The products labeled as “ASR” are individual reagents meeting specific quality requirements for clinical laboratories to use in developing Laboratory Developed Tests (LDTs) within the United States of America. ASR are regulated by the US Food and Drug Administration (FDA).
- Unless agreed or specified in writing by CYTOGNOS the products cannot be under any circumstances used for Commercial Purpose(s), which means any activity by the Purchaser for consideration and may include, but is not limited to:
- Use of the Products or its components in manufacturing.
- Use of the Products or its components in reverse engineering functionally similar materials.
- Use of the Products or its components to provide a service, information, or data.
- Use of the Products or its components for therapeutic or prophylactic purposes.
- CYTOGNOS MAKES NO REPRESENTATION OR WARRANTIES RELATING TO ANY PRODUCT SOLD BY CYTOGNOS, INCLUDING WITHOUT LIMITATION, WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT, OR ANY WARRANTY OF THE QUALITY, FUNCTIONALITY, USE OR PERFORMANCE OF THE PRODUCTS.
- Purchaser´s Representations and Indemnity
- Purchaser represents and warrants that it shall use all materials and other products ordered in a lawful manner.
- Purchaser shall defend CYTOGNOS, its employees, agents, affiliates and Contractors (hereinafter the “Cytognos Indemnitees”), and shall indemnify and hold the Cytognos 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) or third parties that are related to or in connection with (1) products, process or related information, if applicable, being wrongfully disclosed by purchaser to CYTOGNOS or others hereunder, (2) infringement, misappropriation, and/or conversion as a result of CYTOGNOS 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, (if permitted).
- 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.
- 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:
- 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
- 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
- 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.
- 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.
- Force Majeure
- 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 CYTOGNOS 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). 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 CYTOGNOS to allocate production and deliveries of products, CYTOGNOS may allocate its available supply of products among CYTOGNOS customers (including purchaser) and CYTOGNOS internal uses in such manner as CYTOGNOS deems fair and reasonable. Such allocation shall not be deemed a breach of contract.
- Governing Law and Venue
- This Agreement shall be subject to and construed in accordance with the laws of Spain.
- The exclusive venue for proceedings arising under this Agreement shall be a court of competent jurisdiction in Salamanca, Spain.