Terms & Conditions
metabion international AG
Terms and Conditions of Sale
These Terms and Conditions of Sale ("Terms") shall govern all orders for and purchases of products and services from metabion international AG ("MI"), unless other terms are specifically designated by MI to apply to a specific product or service. Any other terms and conditions, general or for procurement, especially including the customer's own, are not applicable, whether referred to when ordering or not.
The price for any product or service (hereinafter "Product") shall be the price stated in MI's Quotation for Product ("MI's Quotation"). MI's Quotations are valid for 30 days unless otherwise stated in MI's Quotation. If the price is stated by reference to a published price list, then the price shall be the published price in effect at the time MI receives buyer's purchase order. Prices stated are exclusive of all taxes, fees, licenses, duties or levies ("Taxes") and, unless otherwise stated in MI's Quotation, transportation charges, freight and insurance. All Taxes related to Product shall be paid by buyer (other than taxes assessed against MI's net income), or in lieu thereof, buyer shall provide a tax exemption certificate acceptable to the relevant taxing authorities. Taxes and other charges payable by buyer may be billed as separate items on MI's invoice.
2. PAYMENT TERMS; COLLECTION COSTS; SECURITY TERMS.
Payment terms are net 30 days from date of MI's invoice to buyer. If MI deems a customer to have become uncreditworthy, MI reserves the right to require alternative payment terms, including without limitation sight draft, letter of credit, or payment in advance. Payment for partial shipments shall be based on unit or prorated prices, and payment for partial installation(s) shall be based on percentage of completion of installation. If payment is not received by the due date, MI may assess and buyer agrees to pay a late payment charge at the rate of 1% per month (12% per year) or the maximum legal rate, whichever is less, of the amount due from the due date to the date of payment. If MI retains a collection agency and/or attorney to collect unpaid amounts, MI may invoice buyer for, and buyer will pay, all costs of collection, including without limitation reasonable attorneys´fees. Buyer hereby grants to MI and MI reserves a purchase money security interest in Product purchased hereunder, and in any proceeds thereof, for all amounts owing to MI for or related to such Product. Upon request by MI, buyer shall sign any reasonable documents required for MI to perfect such security interest. Payment in full of all amounts owed for and related to such Product shall release the security interest on the Product. MI reserves the right to send or make invoices for the agreed upon rendered services available by electronic means or in paper form by letter mail. To receive a softcopy of the invoice as PDF file, customer must designate a valid billing e-mail address. When registering for and/or accepting MI´s electronic billing service, the customer agrees to continually maintain his billing e-mail address and inform MI immediately of any changes to such email address. MI reserves the right to change or discontinue, permanently or temporarily the electronic billing service at any time without prior notice. MI will in that case continue to provide the invoices in paper form. MI will not be liable to the customer or any third party for any modification or discontinuance of this service.
3. CREDIT TERMS.
MI may, at any time and in its sole discretion, limit or cancel the credit of buyer as to time and amount, suspend shipments, demand payment in cash before delivery of Product, or demand other assurances of buyer's performance. If within 30 days buyer fails to agree and comply with the different terms of payment demanded, or fails to give adequate assurances of performance, MI may, without prejudice to any other right or remedy MI may have: (1) by notice to buyer, treat such failure or refusal as a repudiation by buyer of that portion of buyer's order not then fully performed, whereupon MI may cancel all further deliveries, and any amounts unpaid for non-cancelled Product shall immediately become due and payable; or (2) make shipments under reservation of a security interest and demand payment against tender of title documents.
4. DELIVERY; TITLE AND RISK OF LOSS.
MI will use reasonable efforts to ship Product within a reasonable time after ordered, or, if a shipment date is indicated in MI's Quotation or otherwise agreed upon in writing by an authorized representative of MI, on or before such date. MI may make delivery in instalments, and each instalment shall be deemed to be a separate sale. MI may render a separate invoice for each instalment, which invoice shall be paid without regard to prior or subsequent instalments. Unless indicated otherwise in MI's Quotation, title and risk of loss with respect to all Products except Software, and risk of loss with respect to Software, shall pass from MI to buyer upon delivery. Delivery shall be deemed made upon transfer of possession to a common or other third party carrier at MI's facility.
5. CANCELLATION AND DEFERRAL.
A purchase order is not subject to cancellation by buyer. However, unless otherwise stated in MI's quotation, buyer may defer the shipment date one time 30 days for reagents, consumables and other tangible products, by giving written notice to MI at least 10 days before the scheduled shipment date for other products.
Any claims for damaged, missing or defective Product must be reported in writing by buyer within 7 days from the date of receipt of Product. In addition and unless otherwise agreed upon, buyer must promptly return a rejected Product to MI, C.O.D, accompanied by a valid return authorization number obtained from MI. MI may refuse any Product not timely rejected or sought to be returned without a valid return authorization number. For any valid claim timely made, MI, at its option, may repair Product or replace Product with an identical or substantially similar product. These are buyer's sole and exclusive remedies for damaged or missing product, and, except for express warranty rights, for defective product.
7. LIMITED WARRANTY.
MI makes only those warranties with respect to Product expressly identified as "warranties" and set forth in MI's current operating manual or catalog, or in a specific written warranty included with and covering Product, if any. ANY PRODUCT NOT COVERED BY A WRITTEN WARRANTY IS SOLD "AS IS." If buyer furnishes specifications to MI, buyer agrees to defend, indemnify and hold MI harmless against any claim that arises out of MI's compliance with such specifications. Any description of Product recited in MI's Quotation is for the sole purpose of identifying Product, and any such description is not part of any contract between MI and buyer and does not constitute a warranty that Product shall conform to that description. Any sample or model used in connection with MI's Quotation is for illustrative purposes only, and is not part of any contract between MI and buyer and does not constitute a warranty that Product will conform to the sample or model. No affirmation of fact or promise made by MI, whether or not in MI's Quotation, shall constitute a warranty that Product will conform to the affirmation or promise. MI does not warrant products that have been mixed or otherwise combined with other chemical products by the customer. MI states explicitly that all products are for research and laboratory use only. MI declines any warranty for faults in products (like chemical impurities) which originate from improper handling or storage, for application in the household or to humans or animals. No products from MI may be transferred to private persons. The customer is responsible for compliance with state, national and international laws and regulations governing the shipping, storage, processing, and trade of products. MI will not warrant damages to the product arising from noncompliance with such laws and regulations. The warranties identified in the first sentence of this paragraph are MIÕs sole and exclusive warranties with respect to product and are in lieu of all other warranties, expressed or implied, all of which other warranties are expressly disclaimed, including without limitation those of merchantability or fitness for a particular purpose, whether arising from a statute or otherwise in law or from a course of dealing or usage of trade.
8. INTELLECTUAL PROPERTY INDEMNITY.
Subject to the restrictions set forth in this Article and provided buyer complies with its obligations in this Article, MI agrees to defend buyer, and indemnify buyer from and against any infringement damages finally awarded, in any legal action or proceeding brought by a third party against buyer to the extent that such action is based on a claim that the manufacture and sale of Product by MI infringes any European or foreign patent, copyright, trademark or other intellectual property right of such third party.
Buyer's Obligations. Buyer must notify MI in writing of any claim for which it may seek defense and indemnity from MI hereunder promptly after becoming aware of such claim, and shall cooperate with and provide all reasonable assistance to MI, at MI's expense, in the defense or settlement of such claim. MI shall have sole authority to defend and/or settle any claim under this Article.
for Infringement, Rights of MI, Exceptions. If any Product or any
portion thereof is subject to a suit or other legal proceeding claiming
that the Product infringes a third party's intellectual property right,
or in MI's opinion is (are) likely to become subject of such a claim, MI
shall, at its option, have the right to either: (a) procure for buyer
the right to continue using the Product; or (b) replace or modify the
Product so that it becomes non-infringing; or (c) require buyer to
return the Product and upon return, refund to buyer the price actually
paid by buyer for the Product, less a reasonable amount for use, damage
or obsolescence; or (d) substitute for the infringing Product other
suitable, non-infringing products. MI shall have no liability or
obligation hereunder for any infringement based upon: (i) the use of
Product in combination with any product not provided by MI or intended
for use with Product, or based upon any modification to Product made by
buyer or a third party, if such claim would not have occurred but for
such combination or modification; or (ii) any modification, marking or
branding applied to Product by MI at the request of the buyer.
The foregoing states the entire liability of MI, and the exclusive remedy of buyer, for any infringement or claimed infringement of patent, copyright, trade secret or any other intellectual property right by product or any part thereof or use thereof.
9. COMPLIANCE WITH LAWS, VALIDATION.
Without limiting the generality of the paragraph above entitled "LIMITED WARRANTY," unless otherwise expressly stated in writing by MI, no claim or representation is made or intended (i) as to any clinical use of any Product (whether diagnostic, prognostic, therapeutic, blood banking or any other clinical use), (ii) that any Product has been cleared, approved, registered or otherwise qualified (collectively, "Approval") by MI with any regulatory agency for use in any clinical procedure or for other use requiring compliance with any federal, state, European or any other governmental agency or regulatory body regulating diagnostic, therapeutic, blood or other clinical products, medical devices or similar products (collectively, "Regulatory Laws"), (iii) that any Product will satisfy the requirements of any governmental body or other organization, including, but not limited to, the United States Food and Drug Administration or the International Organization for Standardization, or (iv) that any Product or its performance is suitable or has been validated for any specific use or application. Products should not be used for any purpose that would require Approval unless proper Approval is obtained, or, in the case of use in diagnostic laboratory systems and then only to the extent permitted by law, the laboratory has validated its complete system as required by the Clinical Laboratory Improvements Act of 1988, as amended, in the United States or equivalents in other countries. Buyer agrees that if it elects to use Products for a purpose that would subject buyer, its customers, or any Products to the jurisdiction of Regulatory Laws or other applicable law, buyer shall be solely responsible for obtaining any required Approvals or other approvals and otherwise ensuring that its use of any Products complies with such laws. Buyer agrees that it is the buyer's responsibility, and not MI's, to validate the performance of Products for any specific use or application and to ensure that Products meet applicable regulatory, certification, validation or its other requirements, since the use and performance characteristics of Products have not been validated by MI for any specific use or application, except as may be otherwise expressly set forth by MI in writing. Products should be used in strict accordance with applicable instructions, warnings and other information in user manuals and other Product documentation.
10. FORCE MAJEURE.
MI shall not be liable for any delay or failure of performance, including without limitation failure to deliver or failure to install, where such delay or failure arises or results from any cause beyond MI's control, including, but not limited to, flood, unusually severe weather, earthquake or other act of God, power loss, strike, boycott, or other similar disputes, embargo, governmental regulation or an inability or delay in obtaining materials. In the event of any such delay or failure of performance, MI shall have such additional time within which to perform its obligations hereunder as may be reasonable necessary under the circumstances; and MI shall also have the right, to the extent necessary in MI's reasonable judgment, to apportion Product then available for delivery fairly among its various customers in such manner as MI may consider equitable.
11. LIMITATION OF LIABILITY.
In no event shall MI be liable, whether in contract, tort, warranty, or under any statute or on any other basis for special, incidental, indirect, punitive, multiple or consequential damages sustained by buyer or any other person or entity arising out of MI's performance or failure to perform its obligations relating to the purchase of products or performance of services, the possession or use of any product, or the performance by mi of any services, whether or not foreseeable and whether or not mi is advised of the possibility of such damages, including without limitation damages arising from or related to loss of use, loss of data, downtime, or for loss of revenue, profits, goodwill, or business or other financial loss.
12. SOLE TERMS; INCONSISTENCIES; ORDER OF PRECEDENCE.
These Terms, together with MI's Quotation, any applicable limited license or other written conditions of use and any other terms and conditions expressly agreed to in writing by an authorized representative of MI "(collectively, "MI's Terms"), constitute the complete, exclusive and entire agreement between MI and buyer with respect to purchases of Product (unless other terms and conditions are expressly designated to be applicable by MI in writing), and MI's offer to sell is expressly limited to such terms. Such terms shall take precedence over and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, and any of buyer's additional or different terms and conditions, which are hereby rejected and shall be void. Buyers submission of a purchase order or other instrument regarding the purchase of Product in response to MI's Quotation or any other MI document that includes or incorporates these Terms shall be deemed acceptance of these Terms to the exclusion of any other terms and conditions appearing in or referenced in such purchase order or other instrument, which are hereby deemed to be material alterations and notice of objection to which is hereby given, notwithstanding anything contained to the contrary in such purchase order or other instrument or elsewhere. Any acceptance by MI of any offer of buyer is expressly conditioned on buyer's assent to and acceptance of MI's Terms to the extent they are additional or different terms. Except as otherwise provided in these Terms, in the event of an inconsistency between these Terms and the terms appearing on MI's Quotation or other agreement signed by an authorized representative of MI, the terms appearing on MI's Quotation or such other agreement shall supersede and take precedence over the inconsistent provision(s) of these Terms, and all other provisions of these Terms shall remain in full force and effect. Nothing in these Terms shall be deemed or construed to limit MI's rights to enforce its patent or other intellectual property rights, including without limitation as to any use of Product beyond that granted under any patent or other intellectual property limited license applicable to Products.
13. CHOICE OF LAW.
Any contract between MI and buyer relating to Product, including these Terms, and any disputes relating thereto, shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. Application of the United Nations Convention on the International Sale of Goods is excluded. If the customer is a merchant and the order is part of the customer's merchant business, or if the customer is a legal person of the Public Law (a "juristische Person des öffentlichen Rechts" or an "öffentlich-rechtliches Sondervermögen" as defined by German law) Munich in Germany (Landgericht München I) shall be the place of jurisdiction for all disputes arising directly or indirectly from deliveries by MI. MI reserves the right, however, to undertake legal proceedings against the customer at any other place of jurisdiction applicable to the customer.
14. EXPORT CONTROLS.
Buyer agrees that it will not export or transfer Product for re-export in violation of German laws or regulations, or to any denied or prohibited person, entity, or embargoed country in violation of such laws or regulations.
No amendment of MI's Quotation or these Terms or modification thereof shall be binding unless in writing and signed by a duly authorized representative of both MI and buyer. MI's failure to exercise any rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights or any other rights hereunder. Headings are included herein for convenience of reference only and shall not constitute a part of these Terms for any other purpose. If any provision of MI's Terms shall be held to be invalid or unenforceable for any reason, such provisions shall, to the extent of such invalidity or enforceability, be severed without in any way affecting the remainder of such provision or any other provision thereof, all of which shall continue in full force and effect.
Additional terms and conditions of sale for oligonucleotide products, including special terms to protect customer confidential information.
These additional terms and conditions for oligonucleotide products, as well as all of the general terms and conditions of sale set forth above, apply to the purchase of all MI oligonucleotide products.
MI's oligonucleotide products are sold for research use only. All purchases of MI's oligonucleotide products are subject to all of the terms and conditions of these General Terms and Conditions of Sale, including these Additional Terms and Conditions of Sale for Oligonucleotide Products.
The following definitions apply to these Additional Terms and Conditions of Sale for Oligonucleotide Products.
Confidential Information of Buyer means the "Custom Oligo Sequences" and "Custom Oligo Synthesis primers and probes" (as these terms are defined below) furnished by buyer to MI under this Agreement, and the facts that buyer placed orders for such sequences and that buyer ordered oligonucleotide products from MI containing such sequences.
Custom Oligo Sequence means the specific oligonucleotide sequence that is to be manufactured by MI, and related information supplied by buyer to MI, in connection with a Custom Oligo Synthesis order.
Custom Oligo Synthesis primers and probes means custom oligo sequences synthesized by MI and containing one or more fluorescent labelled (single or multiple labelled) and/or unlabelled oligonucleotides, with the nucleotide arrangements thereof specified by buyer in an order (the "Custom Oligo Sequence," as defined herein).
Synthesis means the design (where applicable) and manufacture by MI of Custom Oligonucleotide Products for delivery to buyer pursuant to this Agreement.
Shipment of Custom oligonucleotide products. MI will use reasonable commercial efforts to ship custom oligonucleotide products ordered by buyer from MI in a timely manner. Buyer understands and agrees that any proffered shipment/delivery date for custom oligonucleotide is approximate only and buyer has taken this into account when placing each order.
MI's Evaluation of Custom oligonucleotide sequences. MI may decline the Synthesis, at any stage of the Synthesis process, of any Custom oligonucleotide sequence ordered by buyer that MI, in its reasonable good faith judgment, deems to be unsuitable or commercially impractical for Synthesis, whether on technological or other grounds. MI will give written notice to buyer within a reasonable time following its determination to decline Synthesis of a Custom oligonucleotide sequences. Buyer shall have no obligation to pay any fees for time and materials, or for any other expenses incurred by MI, in connection with any declined Custom Kit oligonucleotide sequences. All Custom oligonucleotide sequences orders not declined by MI will be synthesized, must be paid for by buyer, and may not be cancelled or changed by buyer without the express written permission of MI. Buyer understands and agrees that buyer's obligation to pay fees for all Custom Kits oligonucleotide sequences that MI proceeds to synthesize is firm and irrevocable, regardless of the number of Custom oligonucleotide sequences declined for Synthesis in a given order. Accordingly, each purchase order for Custom Kits oligonucleotide sequences must be for the total amount charged for all Custom oligonucleotide sequences ordered. The amount corresponding to the charges applicable to declined Synthesis will be reflected in MI's invoice for the order.
Custom oligonucleotide product/Primer and Probe Quantities. The quantities of unlabelled oligonucleotides, fluorescently-labelled oligonucleotides and/or probes are as set forth in MI's current general product list or price list as published from time to time. If a particular Custom oligonucleotide product is not listed in an MI current product list or price list, buyer may contact MI for such information.
18. MI's REPRESENTATIONS, WARRANTIES AND LIMITATIONS OF LIABILITY
With regard to oligonucleotide products provided by MI under this Agreement, MI warrants that it will make commercially reasonable efforts and employ standards that are at least consistent with those practiced by the chemical manufacturing industry to produce Synthesis results that are scientifically accurate and valid according to the prevailing standards at the time and place of manufacture in the biotechnology industry, subject to the quality, timeliness and accuracy of all information, whether Confidential Information or otherwise, and material that buyer furnishes to MI for purposes of executing the Synthesis.
Exclusions from warranty. MI does not represent or warrant that any custom oligonucleotide products specified by buyer and supplied by MI will amplify the target sequences. In addition, MI does not make and expressly disclaims any express or implied warranty with respect custom oligonucleotide products supplied by MI, including without limitation warranties of merchantability or fitness for a particular purpose. Without limitation of the foregoing, buyer agrees that mi shall not be responsible for any consequences arising from the failure of custom oligonucleotide products to amplify any sequences or the failure to be accurate or correct of any data, specifications, or other materials or information, including without limitation buyer's information about custom oligo sequences (collectively, the "customer materials") supplied by buyer in connection with any and all orders placed with mi.
19. BUYER'S REPRESENTATIONS, WARRANTIES AND LIMITATIONS OF LIABILITY
By submitting an order, buyer represents, warrants and agrees:
1. That buyer will provide MI with all information known to buyer regarding biological, radiological, and/or chemical hazards associated with the handling, exposure to or other use of any Customer Materials supplied to MI by buyer; and
2. That buyer has the right to cause the sequences that buyer has requested MI to manufacture to be manufactured by MI and sold to buyer, that such sequences and the manufacture and sale thereof to buyer will not infringe the intellectual property rights, including without limitation patent, copyright, trademark, and trade secrets, of any third party anywhere in the world (provided that the foregoing shall not be deemed a representation or warranty with respect to methods of manufacture employed by MI), and that the Customer Materials buyer furnishes to MI will not infringe any such intellectual property rights; and
3. That the custom oligonucleotide products sold to buyer shall be for buyer's own internal research and development use only, shall be used only as permitted under the limited licenses associated with the custom oligonucleotide products, and shall not be resold or otherwise transferred or conveyed to any third party without the express written permission of MI.
20. CONFIDENTIAL INFORMATION OF BUYER
MI agrees that for ten (10) years after the disclosure by buyer to MI of Confidential Information of Buyer, MI shall not disclose such Confidential Information of Buyer to any third party and will use at least the same degree of care as it uses to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care, to prevent the disclosure of such Confidential Information of Buyer to any third party. This undertaking of confidentiality shall not apply to, and MI shall have no obligations under this paragraph with respect to, any Confidential Information of Buyer that (a) was in MI's possession before receipt from buyer, (b) is or becomes a matter of public knowledge or part of the public domain through no fault of MI, (c) is rightfully received by MI from a third party that was not obliged to keep such information confidential, (d) is developed by MI without reference to Confidential Information of Buyer, or (e) is disclosed by MI with buyer's prior written approval. Notwithstanding the foregoing, MI may disclose Confidential Information of Buyer to the extent required to comply with governmental regulations and other applicable laws or to respond to subpoena or other compulsory legal process, provided in all cases that MI takes reasonable and lawful actions to avoid or minimize the extent of such disclosure and notifies buyer in writing as far in advance of the date of disclosure as is reasonable feasible so that buyer to the extent feasible will have an opportunity to seek to prevent or limit disclosure.
21. INTELLECTUAL PROPERTY RIGHTS
Any inventions (patentable or otherwise), discoveries, developments, improvements, information, data, compounds, formulae, know-how or other results that are conceived, developed, reduced to practice, or generated by MI or jointly by buyer and MI and that relate and/or apply to the processes and methods used in or related to the Synthesis of oligonucleotide products or otherwise in connection with designing and/or manufacturing associated primers and probes shall be and remain the sole and exclusive intellectual property of MI. Buyer will take all reasonable and appropriate steps, upon the request and at the expense of MI, to assist MI to secure, evidence and record its rights in such intellectual property.
22. NO GRANT OF RIGHTS
Nothing in this Agreement shall be interpreted expressly or impliedly as:
a. granting either buyer or MI any license or other rights except as expressly set out in this Agreement, or granting either party the right to be supplied with, or to manufacture or to have manufactured, any quantities of oligonucleotide products thereof beyond those ordered in accordance with the terms and conditions of this Agreement;
b. granting buyer the right to resell or convey in any manner the oligonucleotide products thereof to any third party anywhere in the world.