GENERAL CONDITIONS OF SALE
1 Scope:
1.1 All quotations and sales by ModiQuest Research B.V. (“ModiQuest Research”) are subject to and expressly conditioned upon the terms and conditions contained herein, and upon purchaser’s consent thereto.
1.2 If purchaser submits any acknowledgment of the order or other document that contains terms and conditions that are inconsistent with or in addition to the order or these terms and conditions, those additional or inconsistent terms are specifically rejected by ModiQuest Research and ModiQuest Research hereby objects to any such terms and conditions.
1.3 No variation of these terms and conditions will be binding upon ModiQuest Research unless agreed to in writing through non-electronic means and signed by an officer or other authorized representative of ModiQuest Research and shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns.
2 Order Changes and Cancellations
2.1 Orders arising hereunder may be changed or amended only by written agreement signed by both purchaser and ModiQuest Research, setting forth the particular changes to be made and the effect, if any, of such changes on the price and time of delivery.
2.2 Purchaser may cancel an order only by providing written notice to ModiQuest Research at least 14 calendar days prior to the scheduled products delivery date or start of the services. Cancellation of an order during a project shall result in a charge of hundred (100) percent of the gross sales price of the original order.
3 Delivery and Acceptance
3.1 ModiQuest Research will use its reasonable commercial efforts to fulfill purchaser’s orders pursuant to any agreement for the supply of products.
3.2 All products ordered by purchaser pursuant to this Agreement shall be delivered F.O.B. ModiQuest Research’ shipping point in the Netherlands. Products shall be deemed accepted upon delivery. Purchaser may revoke acceptance of any shipment of products which are not in compliance with the specifications as provided under warranty herein. In order to revoke acceptance, purchaser must pay for the shipment as provided in Section 6 and comply with the provisions of Section 9.
3.3 ModiQuest Research will provide any advice and perform all other services, if any, to the best of its knowledge and ability and in accordance with professional standards.
4 Allocation of Goods
4.1 If ModiQuest Research is unable for any reason to supply the total demands for non-custom products specified in Purchaser’s order, ModiQuest Research may allocate its available supply among any or all Purchasers on such basis as ModiQuest Research may deem fair and practical, without liability for any failure of performance which may result therefrom
5 Prices and Taxes
5.1 Unless otherwise stated, prices are without engagement and may be altered by ModiQuest Research to those ruling at the date of despatch. Should the prices be increased in consequence thereof, then upon receipt of our notification of such price-increase the purchaser shall have the right to cancel the order in respect of the products which have not yet been despatched.
5.2 All prices and quotes are exclusive taxes, duties, levies and similar expenses, which are or become due in connection with ModiQuest Research’s quotation, contract or any order resulting therefrom and the carrying out thereof and are for the account of the purchaser, irrespective of which party (including its representatives /employees) will be liable to pay such taxes.
6 Payment
6.1 Purchaser shall pay all invoices for products ordered by and delivered to purchaser without any deductions, discounts, set off or debt settlement within fourteen (14) days of the receipt thereof in the official European currency. If an invoice balance is overdue, without waiving any other rights and remedies at law or under this Agreement, ModiQuest Research may (a) refuse to accept additional orders; (b) refuse to ship ordered products; and/or (c) seek collection from purchaser, including all legal fees and other costs of collection, and (d) will charge 1.5% interest per month on the amount due, form the date invoices are due. Such interest is recalculated each consecutive month the amount of the invoice(s) is still due.
6.2 If the financial condition of purchaser results in the insecurity of ModiQuest Research, in its sole discretion, as to the ultimate collectability of the purchase price, ModiQuest Research may, without notice to purchaser, delay or postpone the delivery of the products; and ModiQuest Research, at its option, may change the terms of payment to payment in full or in part prior to shipment of the entire undelivered balance of said products.
6.3 In the event of default by purchaser in the payment of the purchase price or otherwise, purchaser agrees to pay the balance then due to ModiQuest Research on demand. Purchaser also agrees to pay the statutory interest from the due date until the date on which payment is made in full, and all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection resulting from any default by purchaser in any of the terms hereof.
7 Retention of title
7.1 Title to and ownership of products delivered shall be retained by ModiQuest Research until ModiQuest Research has received payment in full. Until the moment of full payment of all products delivered, the purchaser shall not be authorised to give or permit third parties the use of the Products, to rent or pledge, to transfer the title or to alienate or encumber same in any other way.
8 Limited Warranty
8.1. ModiQuest Research warrants to purchaser for a period of thirty (30) days from the date of delivery, that the products, when shipped to purchaser by ModiQuest Research, shall conform in all material respects to the specifications of ModiQuest Research, as provided on ModiQuest Research’ web-site or in other literature provided to purchaser by ModiQuest Research; provided however, that the products must be stored under the prescribed conditions during such warranty period.
8.2. ModiQuest Research’s sole liability under this guarantee shall be to replace such parts or products as have proved to not conform to specifications as set out here above or, at ModiQuest Research’s option, repair such parts or products or have them repaired at ModiQuest Research’s order, always free of charge, provided that (i) ModiQuest Research is informed by the purchaser in writing (including telefax) within fourteen days after the defect(s) have revealed themselves (ii) upon receipt of shipping instructions from ModiQuest Research, purchaser shall return to ModiQuest Research, at ModiQuest Research’s cost, all products allegedly not conforming to the specifications as warranted; provided, however, in the event that it is subsequently determined that such products do in fact conform to the specifications in all material respects, purchaser shall reimburse ModiQuest Research for all such shipping costs incurred by ModiQuest Research, (iii) such defective parts and products shall become ModiQuest Research’s property as soon as they have been replaced.
The warranty does not cover damage sustained by normal wear and tear or any damage arising in consequence of negligence or improper handling or use of the Products or parts thereof, or of improper installation or of maintenance by unauthorized persons, or of improper storage in the event of the products wholly or partly being stored by the purchaser previous to installation or use
8.3. Except for the foregoing warranty, ModiQuest Research does not warrant the merchantability or fitness for a particular purpose of the products or the performance or noninfringement thereof, does not make and hereby expressly disclaims any warranty, express or implied, with respect to the products, specifications, support, services or anything else relating to the products and does not make any warranty to purchaser, purchaser’s customers or their agents concerning the products and services.
8.4. The services rendered by ModiQuest Research and the result of an antibody project is dependent on the antigenicity of the material provided by the purchaser. ModiQuest Research does not guarantee that the antibodies developed apply in a particular technique or that the material supplied by the customer is immunogenic.
8.5. In addition, ModiQuest Research does not warrant that the use or sale of the products delivered hereunder will not infringe intellectual property rights covering the product itself or the use thereof in combination with other products or in the operation of any process.
9 Limited Liability
9.1. Purchaser acknowledges and agrees that ModiQuest Research’ sole liability and purchaser’s sole and exclusive remedy hereunder for any breach of contract, or based on tort or other concept of law or theory shall not exceed the amount paid by purchaser for such products or services under the order, or in case of a specific fee paid for certain advise, the amount of said fee. Such limitations on ModiQuest Research’ liability hereunder shall apply even if ModiQuest Research’ liability is due in whole or in part to its own negligence. In order to obtain said product remedies, purchaser shall afford ModiQuest Research prompt and reasonable opportunity to inspect all products as to which any claim is made that such products do not conform to the
warranties provided herein. At ModiQuest Research’ option, purchaser shall allow ModiQuest Research to take control of such products and direct their disposal.
9.2. In no event shall ModiQuest Research or its affiliates or their respective representatives be liable to purchaser or its affiliates , whether based in contract, tort, warranty or any other legal or equitable grounds, for any loss of the income, profit or savings or cost of capital of purchaser or its affiliates, for any indirect or consequential damages resulting from or relating to the order or the products delivered or services provided hereunder, even if ModiQuest Research has been advised of the possibility of such damages.
10 Purchaser’s Use of Products
10.1 ModiQuest Research’ products are intended primarily for laboratory research purposes and, unless otherwise stated on product labels, on ModiQuest Research’ web-site or in other literature furnished to purchaser by ModiQuest Research, are not to be used for any other purposes, including but not limited to, in vitro diagnostic purposes, foods, drugs, medical devices or cosmetics for humans or animals.
10.2 Purchaser acknowledges that the products have not been tested by ModiQuest Research for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise stated in ModiQuest Research’ literature furnished to Purchaser. Purchaser realizes that, since ModiQuest Research’ products are, unless otherwise stated, intended primarily for research purposes, they may not be on the United States Toxic Substances Control Act (TSCA) inventory or similar inventory in any other country. Purchaser assumes responsibility to assure that the products purchased from ModiQuest Research are approved for use under the law of the state or country of its residence, if applicable. Purchaser has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using products purchased from ModiQuest Research. Purchaser agrees to comply with instructions, if any, furnished by ModiQuest Research relating to the use of the products and not misuse the products in any manner. No products purchased from ModiQuest Research shall, unless otherwise stated, be considered to be foods, drugs, medical devices or cosmetics.
11 Intellectual Property Rights
11.1 By entering into each and any contract, the purchaser acknowledges that nothing shall be construed to give the purchaser either during or after the duration of the contract any right, title or interest in the intellectual property rights with regard to the products.
11.2 All rights in inventions, all copyrights and all other intellectual or industrial property rights in work or resulting from work done by or one behalf of the purchaser pursuant to any contract shall vest in ModiQuest Research. The purchaser agrees to render its full assistance and cooperation to ModiQuest Research in obtaining and enjoying such rights.
11.3 Antibodies produced, and the reagents subsequently supplied by ModiQuest Research to the purchaser and fully paid for, shall become the property of the purchaser unless agreed otherwise.
11.4 In the event purchaser requires ModiQuest Research to perform services concerning materials or processes owned by the purchaser or third parties or unreveiled sources, the purchaser shall grant ModiQuest Research a license under its intellectual property rights to perform same and hold harmless and indemnify ModiQuest Research from and against any third party claim whether as a consequence of infringement of said third party’s intellectual propert rights or for any other reason not attributable to ModiQuest Research.
12 Purchaser’s Representations and Indemnity
12.1 Purchaser represents and warrants that it shall use all products ordered in a lawful manner. Purchaser shall defend ModiQuest Research, its employees, agents, affiliates and Contractors (the “ModiQuest Research Indemnitees”), and shall hold the ModiQuest Research Indemnitees harmless from and against all suits, actions, or proceedings, at law or in equity, and from all claims, costs, damages, losses and expenses (including, without limitation, attorney’s fees, consultants’ fees, experts’ fees) of third parties that are related to or in connection with (1) the product or product information, if applicable, being wrongfully disclosed by purchaser hereunder, (2) infringement, misappropriation, and/or conversion which are the direct result of ModiQuest Research’ possession and/or use of such products or product information disclosed by purchaser, if applicable, or (3) the death or bodily injury of any third party or the damage, loss or destruction of any tangible personal or real property arising from or related to purchaser’s use of the products, or its manufacture or sale of any products or utilizing the products.
13 Force Majeure
13.1 Delay in performance or non-performance of any obligationcontained herein, other than purchaser’s obligation to pay, shall be excused to the extent such failure or non-performanceis caused by force majeure. For purposes of these Terms and Conditions, force majeure shall mean any cause or event preventing performance of an obligation under the order which is beyond the reasonable control of ModiQuest Research or
purchaser, as the case may be, including without limitation, fire, flood, power shortage, mechanical breakdown, sabotage, shipwreck, embargo, explosion, strike or other labor trouble, accident, riot, acts of governmental authority (including, without limitation, act based on laws or regulations now in existence as well as those enacted in the future), acts of God, and other events or conditions beyond the reasonable control of the affected party. If purchaser or ModiQuest Research is affected by force majeure, the party affected shall promptly provide notice to the other party, explaining in detail the full particulars and the expected duration thereof. The affected
party 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 may be terminated without any liability by either party upon written notice thereof to the other. In the event of a force majeure compelling ModiQuest Research to allocate production and deliveries of products, ModiQuest Research may allocate its available supply of products among ModiQuest Research’ customers (including purchaser) and ModiQuest Research’ internal uses in such manner as ModiQuest Research deems fair and reasonable. Such allocation shall not be deemed a breach of this Agreement.
14 Governing Law; Venue
14.1 This Agreement shall be subject to and construed in accordance with Dutch law. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable
14.2 The exclusive venue for proceedings arising under this Agreement shall be a court of competent jurisdiction in Arnhem, The Netherlands.
ModiQuest Research General Conditions of Sale version 100920
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