1.Area of Application
1.1 All Orders for goods and services accepted by Eurofins MWG Operon LLC or any of its subsidiaries or affiliates" (collectively, "The Company") will be governed by these General Terms and Conditions of Sales (the "Terms and Conditions"). A contract with these Terms and Conditions comes into being when an order that has been placed with The Company is accepted by The Company. An order placed with The Company is considered accepted when The Company accepts the order in writing.
1.2 These Terms and Conditions supersede and replace all prior verbal or written price quotations and agreements between the parties and, unless specifically indicated otherwise therein, take precedence over all conflicting or inconsistent provisions of subsequent written agreements between the parties. No officer (other than the Chief Executive Officer of The Company), employee, agent or subcontractor of The Company has the authority to alter or waive any of these Terms and Conditions or to make any representation which conflicts with or purports to override any of these Terms and Conditions; and no such alteration, waiver or representation shall be binding upon The Company, unless it is in writing and signed by the Chief Executive Officer of The Company.
2. Placement of Order
2.1 A customer's order will be valid only if it is placed on The Company website or is sent by electronic message using The Company-approved sample sheets or electronic order forms and the commercial aspects of the order which are not specifically set out in these Terms and Conditions (including price, estimated turnaround times and delivery date) must be agreed at the time of the order. The Company is not obligated to start any work unless the order is clear and it has been provided all required information.
2.2 Unless specifically accepted in writing and signed by the Chief Executive Officer of The Company, any terms proposed or submitted by a customer at any time (including, but not limited to, terms or provisions in the customer's purchase order, instructions or other document) which differ from these Terms and Conditions are rejected as a material alteration of these Terms and Conditions and shall be of no force or effect. Furthermore, special terms or conditions of prior orders, including special pricing, will not automatically apply to subsequent orders. Each order accepted by The Company will be treated as a separate contract between The Company and the customer.
2.3 The Company is entitled to charge management and administrative fees of up to Twenty Five Dollars ($25) in connection with the request for additional services to an existing order, as well as the cost of the additional services. A request for additional services on samples that have entered the laboratory will be treated as a new order and will postpone estimated delivery date accordingly.
3. Price and Terms of Payment
3.1 If the acknowledgment of an order does not state otherwise, The Company's prices apply "ex works" for US customers and DDU for international customers. Any additional cost or disbursement (e.g. incurred by The Company in connection with the order) must be paid by the customer.
3.2. Prices are exclusive of taxes (including sales, use and VAT) and are based on tariffs in force at the day of the remittance of the offer to the customer. Applicable taxes are those in force at the date of invoicing. If The Company is required to pay any such tax, fee or charge, the customer shall reimburse us therefore or provide us at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
3.3 Unless specifically agreed otherwise by The Company in its acceptance of an order, payment of all invoices is due strictly within thirty (30) days of the invoice date. Any dispute about invoices must be raised within thirty (30) days of the invoice date. The challenge of a result does not entitle the customer to defer payment. Any invoice which remains outstanding after due date, shall be additionally charged with an administrative penalty of Seventy Five Dollars ($75) and will carry interest at the rate of one percent (1%) per month or the maximum interest rate permitted by applicable law, whichever is lower.
3.4 The Company has the right to charge an administrative fee of up to Fifteen Dollars ($15) to re-issue, at the customer's request, an invoice.
3.5 The invoice settlement method is bank transfer, credit card or direct debit. Any other method of payment must receive prior agreement from The Company. The customer undertakes to provide bank account details.
3.6 The Company is entitled to require payment of up to 100% of the quoted order price as a condition of acceptance.
3.7 If during the first use of any goods or services shipped hereunder, such product fails to meet The Company's specifications when used under recommended conditions and the customer notifies The Company's customer services department of the product failure within thirty (30) days of shipment, The Company will provide a prompt replacement of any defective materials. The Company's obligation will be limited to replacement of the product. If the customer does not notify us of any product failure within thirty (30) days of shipment, the goods or services shall be deemed conclusively to conform to specifications and to have been irrevocably accepted by the customer. Product returns are not accepted. No product credit shall be available for use if a past due balance is outstanding on the account. Any product credit not used within six (6) months of the date of its issue shall expire.
4. Duties of Customer in Delivering Samples or Materials
4.1 The samples, materials or information provided by the customer must be in a condition that makes the preparation of reports/analyses or the production of ordered products possible without difficulty. The Company is entitled to conduct an initial examination of the samples, materials or information to check their condition before processing the samples, or using them in production. The customer bears the cost of this initial examination, if the samples, materials or information do not comply with the requirements described in this clause 4.1. If the result of the initial examination is that an analysis or production is impossible or is possible only under more difficult conditions than originally anticipated - for example, because the samples, materials or information are degraded - The Company shall be entitled to terminate or interrupt the order and the customer shall bear costs incurred by The Company to that point.
4.2 The customer must ensure, and hereby warrants, that no sample or materials poses any danger, including on its site, during transportation, in the laboratory or otherwise to The Company premises, instruments, personnel or representatives. It is the customer's responsibility to insure compliance with hazardous waste regulations, including regarding information, transportation and disposal and to inform The Company personnel or representatives about sample or materials health and safety concerns, including any known or suspected toxic or other contaminant that may be present in the sample or materials and its likely level of contamination as well as the risks to The Company premises, instruments, personnel and representatives related to the contamination. The customer shall be responsible for, and indemnifies The Company against, all costs, damages, liabilities and injuries that may be caused to or incurred by The Company or its personnel or representatives including on the sampling site, during the transportation or in the laboratory by the customer's sample or materials or by sampling site conditions. The customer shall bear all extraordinary costs for adequate disposal of hazardous waste resulting from the sample or materials, whether or not described as hazardous waste. At The Company's' request, the customer must provide The Company with the exact composition of the samples and materials.
5. Property Rights on Samples, Materials and Sample and Materials Storage
5.1 All samples and materials become the property of The Company to the extent necessary for the performance of the order. Unless the customer pays for storage, The Company shall have no obligation or liability for samples or materials sent to The Company, including samples or materials requiring refrigeration. The Company does not store sequencing samples and materials.
5.2 The Company will dispose of or destroy primer samples and materials thirty (30) days after the analysis has been performed. The Company can dispose of or destroy the samples and materials after the agreed upon retention period, without further notice and, at the customer's cost, should an extra cost for The Company arise to comply with any regulation (for example, with respect to disposal of hazardous waste). The Company will not return unneeded samples or materials. Primers made by The Company for use in analysis of customer samples and materials will be stored for one hundred eighty (180) days.
6. Delivery Dates, Turnaround Time
6.1 Delivery dates and turnaround times are estimates and do not constitute a commitment by The Company. Nevertheless, The Company shall make all commercially reasonable efforts to meet its estimated deadlines. The Company reserves the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice.
6.2 Sequencing analysis results are generally sent via electronic means and oligo data by post, to the attention of the persons indicated by the customer in the order, promptly after the analysis is completed.
7. Transfer of Property
7.1 Title in any products, data or the like supplied by The Company to the customer will remain with The Company until all invoices in respect thereof have been paid by the customer in full, and until such full payment, the customer shall have no property rights or other rights to use them. In addition, even if The Company has accepted and begun to fulfill an order, The Company has the right at any time to stop processing that order and to stop doing any work for a customer if that customer is late in paying any amount due to The Company, whether for that or any other order.
7.2 Even after payment in full by the customer, The Company shall retain the right to store, use and publish data relating to all goods and services in an anonymous form which does not identify the customer.
7.3 The goods or services ordered from The Company and the method of making thereof may be protected by patent, copyright, trade secret, and other intellectual property rights. No intellectual property rights are granted to the customer through the purchase of the goods or services. The Company does not assert or warrant that any goods or services sold or supplied by The Company to any purchaser or prospective user, or thereafter used by any customer or user in any manner, or for any purpose, research or otherwise, is or shall be free or any claim by any third party for patent infringement or the like. If any claim is made against The Company for infringement of Intellectual Property rights of any third party as a result of (i) the manufacture or sale of goods or services based upon instructions, specifications, or other directions provided by the customer or (ii) the customer's use or resale of goods or services purchased from The Company, the customer shall indemnify The Company Indemnifying Parties (defined in clause 9.1), defend The Company Indemnifying Parties and hold The Company Indemnifying Parties harmless from and against any and all losses, damages and expenses (including reasonable attorneys' fees and other costs of defending any action) that they may incur as a result thereof. The customer shall fully cooperate with The Company Indemnifying Parties in any investigation relating to any such claims and make available to The Company Indemnifying Parties all related statements, reports and tests available to the customer.
8. Limited Warranties and Responsibilities
8.1 Goods and services are handled in the conditions available to The Company in accordance with the current state of technology and methods developed and generally applied by The Company. Goods and services are prepared with a commercially reasonable degree of care but The Company cannot guarantee that these will always be correct or absolute. This warranty expires thirty (30) days after the delivery date of the samples or materials, if the acknowledgement of the order does not specifically state otherwise. In all cases, the customer must independently verify the goods and services supplied by The Company, if it wishes to rely on the same in respect of matters of importance and shall do so at its own risk.
8.2 Goods and services relate exclusively to the applicable order. If The Company has not been mandated and paid to define the specifications and the precise goods and services to be provided for an order or if the customer has not followed The Company's recommendations regarding the use of goods or services, The Company shall not bear any responsibility if the goods or services prove insufficient or inappropriate.
8.3 The customer is solely responsible for the proper delivery of samples or materials sent to The Company for goods or services. Unless otherwise specifically agreed in writing by The Company, The Company accepts no responsibility for any loss or damage, which may occur to any sample or materials in transit or to any facility or site where logistics services are being delivered. The customer will at all times be liable for the security, packaging and insurance of the sample or materials from its dispatch until it is delivered to the offices of the laboratories of The Company. The Company will use commercially reasonable care in handling and storing samples and materials, but The Company shall neither be held responsible for any loss or destruction of samples or materials even after their receipt at its laboratories.
8.4 The customer warrants and represents to The Company that all samples and materials sent to The Company for goods or services are safe and in a stable condition and undertakes to indemnify The Company for any losses, injuries, claims and costs which The Company, or its personnel, may suffer as a result of any sample or materials not being in a safe or stable condition, notwithstanding that the customer may have given an indication on the sample or materials or any order form of any perceived problem with the sample. The customer must always inform The Company in writing prior to shipment and label the packaging, samples or materials and/ or containers appropriately, if the samples or materials are dangerous or otherwise of a hazardous nature.
8.5 Unless explicitly agreed in writing by all parties, the contractual relationship shall be between the customer and The Company. There shall be no third party beneficiary or collateral warranty relating to any order and the customer shall indemnify and hold The Company harmless from and against any and all third party claims in any way relating to the customer or order by the customer.
9. Limitation of Liability
9.1 Except to the extent that such limitations are not permitted or void under applicable law: (a) The Company (together with its workers, office clerks, employees, representatives, managers, officers, directors, agents and consultants and all The Company partners and affiliates, the "The Company Indemnifying Parties") shall be liable only for the proven direct and immediate damage caused by The Company Indemnifying Party's willful misconduct in connection with the performance of an order and then, only if The Company has received written notice thereof not later than six (6) months after the date of the customer's knowledge of the relevant claim (unless any longer period is prescribed under applicable law and cannot be contractually limited), and (b) in all cases (whether arising under contract, tort, negligence, strict liability, through indemnification or otherwise), The Company Indemnifying Parties' liability per claim or series of related claims, and the customer's exclusive remedy, with respect to The Company's goods and services which fall under these Terms and Conditions, shall be limited to the lesser of: (i) the direct and immediate loss or damage caused by The Company Indemnifying Party's willful misconduct in connection with the performance of the order and (ii) ten times the amount The Company actually received from the customer in relation to the order up to fifteen thousand dollars ($15,000).
9.2 The Company Indemnifying Parties shall not be liable for any indirect, direct or consequential loss or damage (including, but not limited to, loss of business, profits, goodwill, business opportunities or similar) incurred by the customer or by any third party.
9.3 It is a condition of The Company's acceptance of an order that the customer indemnify The Company Indemnifying Parties for any losses, injuries, claims and costs which The Company Indemnifying Parties may suffer as a result of, arising from or in any way connected with its role under or services or products provided pursuant to these Terms and Conditions, except to the extent that The Company Indemnifying Parties are required to bear them according to these Terms and Conditions, and by placing an order the customer agrees to provide that indemnification.
10. Repeated Goods or Services
Objections to goods or services can be made within thirty (30) days after the customer receives the goods or services. However, unless The Company failed to manufacture the goods or conduct the first services in accordance with these Terms and Conditions, the customer shall bear the costs of the repeat manufacture, services or review. Furthermore, a repeated manufacture or service will be possible only if The Company has a sufficient amount of the original sample or materials on hand when it receives the customer's objection. Otherwise the customer will be required to pay all costs, including sampling, transportation, analytical and disposal costs for the repeat manufacture or services.
11. Force Majeure
The Company cannot be held liable for delays, errors, damages or other problems caused by events or circumstances which are unforeseen or beyond The Company's reasonable control, or which result from compliance with governmental requests, laws and regulations.
12. Confidentiality & Processing of Customer Data
12.1 The Company shall be entitled to save and process personal or commercial data received from the customer in any way, no matter whether such data stems from the customer directly or from a third party and shall use commercially reasonable efforts to keep such data confidential, in compliance with applicable law.
12.2 The Company shall use commercially reasonable efforts to keep all analysis results and service reports confidential, subject to The Company's rights set forth in clause 7.2 and the right to use them in order to demonstrate its entitlement to payment for services rendered.
12.3 Goods and services are prepared and supplied exclusively for the use of the customer and must not be divulged to a third party for any purposes without the prior written agreement of The Company. In addition, the customer is required to maintain secrecy concerning all services provided by The Company. The customer (a) remains responsible for any consequences due to the divulgence of information relating to goods or services provided by The Company to a third party and any reliance of such third party on such information and (b) hereby agrees to indemnify The Company Indemnified Parties against any liability which The Company Indemnified Parties may incur as a result of such divulgence or any such third party reliance.
13. Disclaimer and Miscellaneous
13.1 ALLTERMS, CONDITIONS AND WARRANTIES (INCLUDING ANY IMPLIED WARRANTY AS TO MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE) AS TO THE MANNER, QUALITY AND TIMING OF THE GOODS OR SERVICE AND RESULTS,EQUIPMENT, PRODUCTS OR DATA SUPPLIED BY THE COMPANYARE EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE COMPANY CONTAINED IN THESE TERMS AND CONDITIONS ARE EXLCUSIVE.
13.2 These Terms and Conditions may be modified in writing from time to time by The Company and orders will be governed by the most recent version of these Terms and Conditions that is in effect at the time The Company accepts the order.
13.3 Should a court waive, limit or hold to be invalid, illegal or unenforceable any part of these Terms and Conditions, all other parts shall still apply to the greatest extent possible.
13.4 Failure by either The Company or the customer to exercise the rights under these Terms and Conditions shall not constitute a waiver or forfeiture of such rights.
13.5 Except as otherwise agreed in writing by The Company's authorized representative, the purchase of goods or services from The Company only conveys to the customer the non-transferable right for only the customer to use the quantity of goods or services and components of goods or services purchased in compliance with the applicable intended use statement, limited use statement or limited label license, if any, in The Company's literature or on the label or other documentation accompanying the goods or services (all such statements or licenses being incorporated herein by reference as if set forth herein in their entirety). Unless otherwise authorized, no right to resell the goods or services, or any portion of them, is conveyed hereunder.
Unless otherwise expressly indicated on The Company's web site, or on the label or other documentation accompanying the goods and services, the goods are intended for research use only and are not to be used for any other purposes including, but not limited to, unauthorized commercial purposes, in vitro diagnostic purposes, ex vivo or in vivo therapeutic purposes, investigational use, in foods, drugs, devices or cosmetics of any kind, or for consumption by or use in connection with or administration or application to humans or animals. The customer acknowledges that the goods or services purchased from The Company have not been tested by or for The Company for safety or efficacy, unless expressly stated on our web site, in our literature or on the label or other documentation accompanying the goods or services. Without limiting the foregoing restrictions, the customer warrants to The Company that should the customer use or sell goods or services purchased from The Company for any use other than research, the customer shall conduct all necessary tests, comply with all applicable regulatory requirements, issue all appropriate warnings and information to subsequent purchasers and/or users and be responsible for obtaining any required Intellectual Property rights.
The customer represents and warrants to The Company that: the customer will properly test, use, and, to the extent authorized, manufacture and market any goods or services purchased from The Company and any final articles made from them in accordance with the practices of a reasonable person who is an expert in the field, including, but not limited to, a technically qualified individual (40 C.F.R. § 720.3(ee)), and in strict compliance with all applicable national, state, provincial, and local food, drug, device, and cosmetic and other relevant laws and regulations, now and hereinafter enacted; and any final articles manufactured from the goods or services shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and shall not be articles which may not, under Sections 404, 505, or 512 of the Act, be introduced into interstate commerce.
The customer realizes that, because The Company's goods or services are intended primarily for research purposes, they may not be on the Toxic Substances Control Act (TSCA) inventory. The customer assumes responsibility to ensure that the goods or services purchased from The Company are approved for use under TSCA, if applicable. Consistent with the customer's agreement to comply with all TSCA R&D substance exemption requirements applicable to the purchase, the customer agrees and warrants that it will comply with all requirements necessary to maintain the R&D exemption, including using the R&D substance under the supervision of a technically qualified individual, maintaining all necessary labeling, and providing all necessary notifications. The customer also agrees and warrants that it will use or sell (if otherwise so authorized) the R&D substance exclusively for R&D purposes or specified exempt commercial purposes. The customer specifically agrees and warrants that it will not sell or distribute the R&D substance to consumers.
13.6 Export control laws. The customer acknowledges that the goods or services received from The Company are subject to U.S. export control laws and regulations. The customer represents and warrants to The Company that the customer will not, directly or indirectly, (1) sell, export, re-export, transfer, divert, or otherwise dispose of any goods or services received from The Company to any destination, entity, or person prohibited by the laws or regulations of the United States, or (2) use the product for any use prohibited by the laws or regulations of the United States and/or your local jurisdiction, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
14. Governing Law/ Jurisdiction
14.1 The construction, validity and performance of these Terms and Conditions shall be governed by the laws and the commercial courts of Louisville, KY, the city and State in which the registered office of The Company which accepted the order in question is located (including in cases involving multiple counsels for the defense or third-party respondents), which shall have exclusive jurisdiction.