Terms and Conditions, Sale of Kits

Terms and Conditions of Sale

of

Biognosys AG

Wagistrasse 21

8952 Schlieren (Zurich)

Switzerland

 

As of: 24 July 2024

 

1. GENERAL
Orders are accepted by Biognosys AG (“Supplier”) subject to these terms and conditions.
These terms and conditions apply to the exclusion of all other terms. In case of a conflict, inconsistency or addition not expressly accepted in writing by Supplier, the terms and conditions of sale provided herein shall be considered as superseding the conflicting, inconsistent or additional terms stated in Buyer’s purchase order, order form, contract or otherwise.

 

The acceptance of an order will supersede all prior communications and constitute a complete and binding contract between Buyer (as defined below) and Supplier, which contract cannot be modified or cancelled without the written agreement of both parties.

 

2. Definitions

“Affiliate” means any person, firm, association, organization, corporation, company, or other entity which: (i) is Controlled by a party hereto; (ii) Controls a party hereto; or (iii) is under common Control with a party hereto. “Control” is assumed when more than fifty percent (50%) of the controlled entity’s shares or ownership interest representing the right to make decisions for such entity are owned or controlled, directly or indirectly, by the controlling entity.

“Buyer” means the entity that signs the Order (together with its Affiliates and subsidiaries).

“Order” has the meaning set forth in Section 3.1. below.

“Product” means the product or products described in the applicable Order. Products may include, without limitation, reagents, consumables and other media.

“Quote(s)” means Supplier’s written, itemized, descriptive list of Supplier Products and the associated prices therefor.

 

3. OFFER / CONCLUSION OF CONTRACT

3.1. Ordering Process. Supplier’s Quotes shall be non-binding and subject to change unless expressly indicated otherwise.

 

Buyer’s Order constitutes a legally binding offer to enter into a contract.

 

The acceptance of an Order may be by way of a written contract confirmation by Supplier (including by email). If no written confirmation is issued, a contract (subject to these terms and conditions) shall take effect by placing at disposal the Products. In this case, Buyer shall waive the receipt of a written confirmation.

 

3.2. Quotes. Quotes are valid until the expiration date indicated on each Quote. Supplier may provide an updated Quote if Buyer wishes to accept an expired Quote.

 

3.3. Product Orders. Each Order for Products will specify the price and quantity of each Product to be delivered as well as the delivery destination(s). In case of any incompleteness or wrongful information in the Order, the final and prevailing document shall be an invoice issued by Supplier for the corresponding Order.

 

3.4. Changes. Orders may be changed or amended only by written agreement signed by both Buyer and Supplier, setting forth the particular changes to be made and the effect, if any, of such changes on the price and time of delivery.

 

3.5. Cancellations. Buyer may not cancel the Order and the invoiced amounts shall be due to Supplier.

 

4. SHIPMENT

4.1. Supplier shall attempt to comply with, but will not guarantee, shipping date and routing instructions. Supplier reserves the right to allow or prorate shipments against all Orders whenever, in its judgment, an oversold condition exists as to any particular Product manufactured or sold by it. In the event of a default by Buyer, Supplier may decline to make further shipments without waiving any of its rights under such Order. If, despite such default, Supplier elects to continue to make shipment, its action shall not constitute a waiver regarding, or otherwise diminish, Supplier’s legal remedies with respect to such default or any future default.

 

4.2. Any claims of Buyer for compensation due to the inability to deliver Products, or due to delays in delivery, shall be limited as set forth in Section 11 of these terms and conditions.

 

5. TITLE AND DELIVERY.

5.1. All sales are made DAP (Incoterms 2020) unless otherwise stated in the Quote. In any case, Supplier will recharge the costs of transportation, duties, and handling to the Buyer. Title to the Products shall pass from Supplier to Buyer upon Supplier’s putting the Products purchased hereunder in good condition into the possession of a common carrier, such carrier acting as Buyer’s agent. Supplier reserves the right, in its discretion, to determine the exact method of shipment.

 

5.2. Immediately upon Buyer’s receipt of Products shipped hereunder, Buyer shall inspect the same and shall notify Supplier in writing of any claims for shortages, defects or damages and shall hold the Products for Supplier’s written instructions concerning disposition. If Buyer shall fail to so notify Supplier within five (5) working days of delivery (as defined under the applicable Incoterm) or, if the defect was not evident at the time of the Products inspection, at the latest within three (3) working days after the defect is identified. Supplier assumes no warranty and accepts no other liability for defects if Buyer has failed to properly inspect the Products and/or report defects.

 

5.3. If the delivered Products are defective, Supplier shall – to the exclusion of any other remedies of Buyer provided for by the Swiss Code of Obligations – be entitled to its choice of supplementary performance (“Nacherfüllung”), either by rectifying the defect (repair) or by providing a new, non-defective item (replacement). Any claims of Buyer for compensation shall be limited as set forth in Section 11 of these terms and conditions.

 

5.4. Returns (Valid for U.S. Buyers Only) – Products may not be returned for credit except with Supplier’s permission, and then only in strict compliance with Supplier’s return shipment instructions. Any returned items may be subject to a 20% processing fee and must be returned within 90 days of purchase.

 

5.5. If for any reason the delivery is delayed at Buyer’s request, Supplier may store the Products at Buyer’s expense and risk in the name of Buyer.

 

6. PRICES.

6.1. Irrespective of any prices quoted by Supplier or listed on Buyer’s order, an Order is accepted only at the prices shown on Supplier’s written Quote. Unless clearly stated otherwise, all amounts stated in the Order shall be exclusive of VAT and other local taxes (including but not limited to withholding) which shall be added to the price if applicable.

 

6.2. Except as otherwise specified in the applicable Order, all final and total prices for Product include, and Supplier is solely responsible for, all costs and expenses relating to packing, crating, boxing, transporting, loading, export customs fee and insurance. For the avoidance of doubt, Supplier can issue an itemized invoice stating any costs that it decides to recharge to the Buyer as a separate item. All amounts payable for Product shall be in currency as specified in the corresponding invoice. Unless otherwise required by applicable law, Buyer is responsible for all taxes applicable to the Product.

 

7. PAYMENT TERMS

7.1. Buyer shall pay all invoiced amounts by wire transfer to the bank account of Supplier indicated in the applicable Quote or respective invoice within thirty (30) days of the receipt of the invoice or as otherwise stated in the invoice. In exceptional circumstances Supplier can accept payment by credit card which shall be cost neutral to Supplier (i.e. Buyer will be charged with applicable third-party fees). Buyer shall have no right to set-off or deduct any amounts from invoices issued by Supplier in accordance with the applicable Order.

 

7.2. Buyer shall be automatically deemed in default upon expiration of the applicable period for payment under the preceding clause 7.1. without the need for a default notice to be issued. During any period of default, the price shall bear interest at eighteen (18) percent annual interest rate, calculated on the number of days the payment is late. Supplier reserves the right to claim additional damages for default.

 

7.3. In the event any proceeding is brought by or against Buyer under any bankruptcy or insolvency laws, Supplier shall be entitled, in addition to any other remedies at law, to (i) stop or divert any shipment in transit, (ii) cancel any Order of Buyer then outstanding and/or (iii) receive reimbursement for its cancellation charges.

 

8. TAXES

Quoted prices do not include federal, state or local withholding, excise, sales, use or similar taxes. Accordingly, in addition to the prices specified on the Quote, the amount of any applicable withholding, excise, sales, use and/or similar taxes will appear as separate items on the invoice and will be paid by Buyer unless prior to shipment Supplier receives an appropriate tax exemption certificate from Buyer.

 

9. FORCE MAJEURE.

Supplier shall not be liable for failure to perform occasioned by strikes, lockouts, labour difficulties, riots, inability or difficulty in obtaining or procuring supplies, labour or transportation, fires, storms, floods, earthquakes, explosions, accidents, acts of God, interference by civil or military authorities, whether legal or de facto, acts of the public enemy, war, rebellion, insurrection, sabotage, embargoes, pandemic, orders given priority by any public authority or any other cause beyond the reasonable control of Supplier if such event was not foreseeable at the time when the contract was entered into.

 

10. WARRANTY (“Gewährleistung” in terms of Swiss Code of Obligations).

10.1. Unless these terms and conditions (including Sections 11 and 15) provide otherwise or specify additional terms, the relevant statutory provisions shall govern Buyer’s rights in the case of material or legal defects (“Sach- und Rechtsmängel”).

 

10.2. Supplier warrants that its Products shall conform to the description of such products as provided to Buyer by Supplier through Supplier’s website. THIS WARRANTY IS EXCLUSIVE, AND SUPPLIER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Supplier’s warranties made in connection with this sale shall not be effective if Supplier has determined, in its sole discretion, that Buyer has misused the Products in any manner, has failed to use the Products in accordance with industry standards and practices, or has failed to use the Products in accordance with instructions, if any, furnished by Supplier.

 

11. LIMITATION OF LIABILITY.

11.1. Supplier’s sole and exclusive liability and Buyer’s exclusive remedy with respect to Products proved to Supplier’s satisfaction to be defective or nonconforming shall be replacement of such Products without charge or refund of the purchase price, in Supplier’s sole discretion, upon the return of such Products in accordance with Supplier’s instructions. SUPPLIER SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF BUYER OR OTHER USE OR ANY LIABILITY OF BUYER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY SUPPLIER’S GROSS NEGLIGENCE. All claims must be brought within one (1) year of delivery, regardless of their nature.

 

12. COMPLIANCE WITH LAWS, REGULATIONS.

12.1. The performance of each party hereunder is subject to compliance with all applicable laws.

 

12.2. Anti-Bribery: Each party shall procure that its officers, workers, agents and any other persons who request or perform Services in connection with this Agreement shall:
(a) Not commit any act or omission which causes or could cause it or the other party to breach, or commit an offence under, any laws relating to anti-bribery and/or anti-corruption;
(b) Keep accurate and up to date records showing all payments made and received and all other advantages given and received by it in connection with this Agreement and the steps it takes to comply with this Section and permit the other party to inspect those records as required;
(c) Promptly notify the other party of: (i) any request or demand for any financial or other advantage received by it; and (ii) any financial or other advantage it gives or intends to give whether directly or indirectly in connection with this Agreement; and (iii) promptly notify the other party of any breach of this Section.

 

The non breaching party may terminate the applicable Oder immediately by giving written notice to that effect to the other party if such party is in breach of this Section 12.2.

 

12.3. Buyer understands that exports and re-exports of Supplier’s Products and any related technical assistance or training, and any media in which any of the foregoing is contained (the “Items”) may be subject to Swiss, European, U.S. and foreign trade controls, customs, anti-boycott and economic sanctions laws, regulations, rules and orders (the “Export Laws”). In addition to any other remedy it may have, Supplier may suspend or cancel the export, delivery, installation, or any maintenance or repair service of any Item if (a) Supplier has not received all export-related documentation requested by Supplier, including end-user certificates, (b) Supplier has not received the governmental approvals that Supplier deems to be required, or (c) Supplier believes that such activity may violate any Export Laws or Supplier’s own compliance policies. Buyer shall only use the Items for non-military, peaceful purposes. Buyer shall not export, re-export or otherwise transfer or provide any Item in contravention of any applicable Export Law or any end-user certificate provided by Buyer, including to an embargoed or otherwise sanctioned country, to anyone listed on any applicable prohibited persons list published by the U.S., the UN, the EU or the OSCE, or for a prohibited end-use (such as research on or development of chemical, biological, or nuclear weapons, unmanned air vehicles or missiles, or nuclear explosive or fuel cycle activities). Buyer must notify Supplier before providing any technical data to Supplier that is controlled under any applicable Export Law. Supplier will not be liable to Buyer for any loss or expense if Buyer fails to comply with any Export Law.

 

12.4. Buyer will comply with all applicable import laws or other restrictions or conditions respecting the import of Items that are now in effect or are hereafter imposed by any government or other applicable jurisdiction. Buyer shall be responsible for obtaining any necessary import permit, license or authorization at its sole cost and expense.

 

12.5. Buyer shall not sell, export or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation any Products supplied under or in connection with these terms and conditions that fall under the scope of Art. 12g of Council Regulation (EU)No 833/2014.
Buyer shall undertake its best efforts to ensure that the purpose of this clause 12.5. is not frustrated by any third parties further down the commercial chain, including by possible resellers.
Buyer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of this clause 12.5.
Any violation of this clause 12.5 shall constitute a material breach of an essential element of these terms and conditions, and Supplier shall be entitled to seek appropriate remedies, including, but not limited to:
(i) termination of the applicable Order; and
(ii) a penalty of 50% of the total value of the applicable Order or price of the Products exported, whichever is higher.
Buyer shall immediately inform Supplier about any problems in applying provisions of this clause 12.5 including any relevant activities by third parties that could frustrate the purpose of this clause 12.5. Buyer shall make available to Supplier information concerning compliance with the obligations under this clause 12.5. within two weeks of the simple request of such information.

 

13. BUYER’S USE OF PRODUCTS

13.1. Supplier’s Products are intended primarily for laboratory research purposes and, unless otherwise stated on Product labels, on Supplier’s website or in other documents furnished to Buyer, are not to be used for any other purposes, including but not limited to, in vitro diagnostic purposes, in foods, drugs, medical devices or cosmetics for humans or animals or for commercial purposes. Buyer acknowledges that the Products have not been tested by Supplier for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise stated in Supplier’s documents furnished to Buyer. Buyer expressly represents and warrants to Supplier that Buyer will properly test, use, manufacture and market any Products purchased from Supplier and/or materials produced with Products purchased from Supplier in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations, now and hereinafter enacted. Buyer further warrants to Supplier that any material produced with Products from Supplier shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and shall not be materials which may not, under Sections 404, 505, or 512 of the Act, be introduced into interstate commerce.
Buyer realizes that, since Supplier’s Products are, unless otherwise stated, intended primarily for research purposes, they may not be on the Toxic Substances Control Act (TSCA) inventory. Buyer assumes responsibility to assure that the Products purchased from Supplier are approved for use under TSCA, if applicable.
Buyer has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using products purchased from Supplier. Buyer also has the duty to warn Buyer’s customers and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the Products. Buyer agrees to comply with instructions, if any, furnished by Supplier relating to the use of the Products and to not misuse the Products in any manner. If the Products purchased from Supplier are to be repackaged, relabelled or used as starting material or components of other products, Buyer will verify Supplier’s assay of the Products. No Products purchased from Supplier shall, unless otherwise stated, be considered to be foods, drugs, medical devices or cosmetics.

 

13.2. Alterations; No Reverse Engineering. Buyer will not alter or misuse the Product nor combine the Product with another item in any manner which constitutes a danger to persons or which would cause the Product to infringe upon a third party’s intellectual property rights. Buyer will not attempt to reverse engineer the Product.

 

14. BUYER’S REPRESENTATIONS AND INDEMNITY
Buyer represents and warrants that it shall use all Products ordered herein in accordance with Section 13 “Buyer’s Use of Products”, and that any such use of Products will not violate any law or regulation. Buyer agrees to indemnify and hold harmless Supplier, its employees, agents, successors, officers, and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that Supplier may sustain or incur as a result of any claim against Supplier based upon negligence, breach of warranty, strict liability in tort, contract, or any other theory of law brought by Buyer, its officers, agents, employees, successors or assigns, by Buyer’s customers, by end users, by auxiliary personnel (such as freight handlers, etc.) or by other third parties, arising out of, directly or indirectly, the use of Supplier’s products, or by reason of Buyer’s failure to perform its obligations contained herein. Buyer shall notify Supplier in writing within fifteen (15) days of Buyer’s receipt of knowledge of any accident, or incident involving Supplier’s Products which results in personal injury or damage to property, and Buyer shall fully cooperate with Supplier in the investigation and determination of the cause of such accident and shall make available to Supplier all statements, reports and tests made by Buyer or made available to Buyer by others. The furnishing of such information to Supplier and any investigation by Supplier of such information or incident report shall not in any way constitute any assumption of any liability for such accident or incident by Supplier.

 

15. PATENT DISCLAIMER
Supplier does not warrant that the use or sale of the Products delivered under will not infringe the claims of any United States or other patents covering the Product itself or the use thereof in combination with other products or in the operation of any process.

 

16. TECHNICAL ASSISTANCE.
At Buyer’s request, Supplier may, at Supplier’s discretion, furnish technical assistance and information with respect to Supplier’s Products. SUPPLIER MAKES NO WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY SUPPLIER OR SUPPLIER’S PERSONNEL. ANY SUGGESTIONS BY SUPPLIER REGARDING USE, SELECTION, APPLICATION OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN A WRITING SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF SUPPLIER.

 

17. ASSIGNMENT BY SUPPLIER.
Buyer agrees that Supplier is authorized to assign any of its rights and obligations to any of its Affiliates or third party distributor (with or without notification to the Buyer), and such Affiliate or third party distributor shall become a party to the applicable Order and these Terms and Conditions shall be applicable to such Order (“Distributor”). For the avoidance of doubt, such Distributor shall be entitled to issue invoices for the Products to be supplied under the Order in their own name as well as ship and deliver the Products to the Buyer.

 

18. MISCELLANEOUS

18.1. Supplier’s failure to strictly enforce any term or condition of the applicable Order or to exercise any right arising hereunder shall not constitute a waiver of Supplier’s right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies under this Order are cumulative and are in addition to any other rights and remedies Supplier may have at law or in equity.

 

18.2. Waiver. No action or inaction by either party shall be construed as a waiver of such party’s rights under these terms and conditions or as provided by law. The failure or delay of any party in enforcing any of its rights under these terms and conditions shall not be deemed a continuing waiver of such right. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach.

 

18.3. Severability. In the event any provision of these terms and conditions conflicts with the law under which these terms and conditions are to be construed or if any such provision is held illegal, invalid or unenforceable, in whole or in part, by a competent authority, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable laws. The legality, validity and enforceability of the remaining provisions shall not be affected thereby and shall remain in full force and effect.

 

18.4. Survival. Representations, warranties and obligations under any provisions set forth in these terms and conditions related to proprietary rights, infringement, confidentiality, governing law, and provisions which contemplate performance or observance subsequent to termination or expiration of these terms and conditions shall survive such expiration or termination.

 

18.5. Notices. Unless otherwise agreed in writing by both parties, all notices pursuant to the applicable Order must be in writing, and delivered personally or sent by courier, certified mail (return receipt requested) addressed to the relevant party(ies) at their respective addresses set forth in the Order. Either party may specify a different address to receive notices by providing a notice in accordance with this clause. Notices sent by courier or certified mail are effective upon receipt or 5 working days after dispatch, whichever occurs first. For the avoidance of doubt, operational correspondence can be sent to email addresses specified in Quotes and Orders.

 

19. GOVERNING LAW / PLACE OF JURISDICTION.

19.1. The contract created hereby and the entire relationship of the parties shall be governed by and interpreted and construed in accordance with the laws of Switzerland, without regard to the choice of law provisions thereof and not including the U.N. Convention on Contracts for the International Sale of Goods (CISG).

 

19.2. The place of exclusive (and international) jurisdiction for any and all disputes arising out of or in connection with Supplier’s business relations with Buyer shall be the place of Supplier’s registered office. However, Supplier may also sue Buyer in the place of its domicile.