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.
1. PRICE.
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.
6. REJECTION.
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.
Remedy
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.
15. MISCELLANEOUS.
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.
16. DEFINITIONS.
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.
17. DELIVERY.
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.