General Terms and Conditions
These are the general terms and conditions (“Terms”) under which Arcoris bio AG (“ABAG”) sells its products and services (each a “Product”, and collectively the “Products”). A party purchasing ABAG Products (“Customer”) will be subject to these Terms regardless of what method is used to submit its offer to purchase Products (“Order”). These Terms apply as long as no other agreement has been entered into between ABAG and Customer. These Terms supersede any Customer procurement terms and conditions. For the sake of clarity, these Terms apply even if the Customer order contains restrictions or amendments which read otherwise. The Order, and these Terms are sometimes collectively and individually referred to herein as the Agreement (“Agreement”). ABAG may adapt these Terms from time to time at ABAGs own discretion.
ABAG's acceptance of any Order by Customer is expressly conditioned on Customer's agreement to these Terms. ABAG will not be bound by, and specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) which is proffered by Customer in any order, receipt, acceptance, confirmation, correspondence, or otherwise, unless ABAG specifically agrees to such provision in a written instrument signed by ABAG.
2. Purchase and Sale
ABAG shall sell to Customer, and Customer shall accept and pay for, all Products ordered by Customer pursuant to an Order that has been accepted by ABAG. All Orders are subject to acceptance by ABAG either in writing or by shipping Products. ABAG may accept any Order in whole or in part.
Written confirmation of a telephone, fax, e-mail, electronic, or Internet Order is not required; however, if confirmation of an Order is sent by Customer, it shall be prominently marked – “CONFIRMING ORDER, DO NOT DUPLICATE”. Duplicate shipments due to incorrectly marked confirming orders will be subjected to a returned products charge of 20% of the Products returned plus shipping charges (“Returned Products Charge”).
Customer shall pay the prices specified in the applicable Order or, if no price is specified in the Order, the price set forth in ABAG’s standard price list in effect on the date that ABAG accepts the Order. The prices in ABAG lists and on the ABAG website are selling prices for Switzerland. The prices exclude value-added tax (VAT), insurance, handling, shipping, delivery, other taxes, other amounts payable to governmental authorities, fees, duties and levies, all of which are payable by the Customer. Swiss VAT will be added for customers in Switzerland. Customer shall be solely responsible for any applicable sales, use or similar tax and agrees to indemnify ABAG for any such tax if not properly paid by Customer. Customer is responsible to confirm that its account is set up properly and that any applicable exemption documents are provided.
The prices are not binding unless confirmed in writing by ABAG. All prices are subject to change without notice. All prices and charges are in Swiss Francs.
Payments for delivered goods are due net 30 days from the date of the invoice and in the currency specified on the invoice. The obligation to pay is only considered as fulfilled when the invoiced amount has been credited to the bank account of ABAG. Any claim or counterclaim or set-off by Customer shall not justify Customer withholding payment unless otherwise agreed in writing by ABAG. If Customer is late in making payment, ABAG may, without affecting any other rights or remedies, suspend production, shipment and/or deliveries, cancel Orders, reject future orders, and/or charge a late payment fee, from the due date until paid, at the maximum rate of interest allowed by law. Customer shall pay any and all reasonable costs, including attorneys’ fees, incurred by ABAG in collecting any delinquent balance. ABAG may demand prepayments or guarantees when initiating a new business relationship or large volume orders. ABAG may also demand prepayments if a payment deadline is missed or doubts about the customer’s creditworthiness exist; in these cases, ABAG can also retract payment deadlines already established. For foreign payments and bank transfers, the amount due is only accepted without any deduction, clear of charges.
5. Transfer Prohibition and Export Limitation
In the absence of an express written agreement to the contrary, the purchase of a Product only conveys the nontransferable right to use the purchased Product in compliance with these Terms, and all Products are sold by ABAG for the exclusive use of the Customer, and Customer has no right to resell, transfer, or convey to any other party, in whole or in part, any Products purchased hereunder. Without limiting the foregoing, Customer may transfer information or materials made through the use of a Product to a scientific collaborator, provided that such transfer is not for Commercial Purposes (as defined below), and that such collaborator agrees in writing (i) not to transfer such information or materials to any third party, and (ii) to use such transferred information or materials solely for research and not for Commercial Purposes.
The use of Products may be limited to certain jurisdictions. Customer warrants not to export ABAG Products outside of jurisdictions specified. In case no jurisdiction is specified, Customer warrants to clarify jurisdiction limitations and comply with export limitations accordingly. ABAG assumes no liability in context of Customer exporting Products and Customer agrees to indemnify and hold harmless ABAG of any claim by any third Party that might arise as a consequence of such export (see section 13).
Products and information that Customer receives from ABAG may further be subject to local export control laws and regulations, and Customer warrants to comply with such laws and regulations.
6. Product Use and Restrictions
Unless otherwise expressly stated in writing by ABAG, (i) Customer may not use Products for Commercial Purposes; and (ii) all Products are for research use only, and not for human or animal therapeutic or diagnostic use. “Commercial Purposes” means any activity by a party for consideration and may include, but is not limited to: (1) use of Products or their components to provide a service, information, or data; (2) use of the Products or their components for therapeutic, diagnostic or prophylactic purposes or in connection with any Phase III clinical trials, pivotal trials or post registration clinical trials; or (3) resale of the Products or their components, whether or not such Products or their components are resold for use in research.
Products are to be used only in accordance with instructions accompanying delivery of the Product. Products are not submitted for regulatory review or validated for clinical, therapeutic or diagnostic use, safety and effectiveness, or any other specific use or application unless expressly stated in writing by ABAG or labelled as such. Customer is solely responsible for complying with all applicable laws, regulations and governmental policies when using ABAG Products. Customer is solely responsible for obtaining all necessary approvals, permissions and/or licenses or intellectual property rights from applicable third parties as may be required for Customer’s research and any other intended uses. It is solely Customer’s responsibility to make sure the Products are suitable for Customer’s particular use.
As a material condition to ABAG providing its Products to Customer, Customer agrees that it shall not, directly or indirectly, attempt to reverse engineer, disassemble, or otherwise perform any compositional, structural, functional or other analyses directed to learning the methodology, components, formulae, processes, make-up, or production of any Product or any portion thereof.
ABAG will pack the Products for shipment in a commercially reasonable manner and in accordance with the Product Datasheet. If Customer has not specified a carrier in the Order, ABAG may select the carrier but will not be deemed thereby to assume any liability in connection with the shipment nor will the carrier be construed to be an agent of ABAG. Customer shall pay or reimburse ABAG for all transportation, freight, insurance, loading, packaging and handling charges, taxes, duties, fees, storage and all other charges applicable to the Products. All shipments are subject to availability, and ABAG may ship in installments. ABAG will use commercially reasonable efforts to complete shipments as indicated in the Order, but Customer hereby acknowledges that shipment schedules are approximate and agrees that ABAG shall not be liable for any damages or penalties for delay in delivery or for failure to give notice of delay for any reason.
Title to the Products will pass to Customer upon ABAG’s delivery of the Products to the carrier, subject to the limitations provided in this Agreement.
9. Inspection and Returns.
Customer may request to return Products that are damaged or defective upon delivery, but Customer must contact ABAG’s Customer Service within 10 business days from the day Customer received the Products to request a return authorization (“Return Authorization”). ABAG will not accept returns, and no credit will be issued, without a Return Authorization. Products must be returned within thirty (30) calendar days of receiving a Return Authorization and must be in their original containers with the original labels. Upon receipt of Products that have a Return Authorization, a credit for the original purchase price less the Returned Products Charge, if applicable, will be issued.
Non-delivery must be reported to ABAG within fourteen (14) calendar days of the date of the invoice. Customer must report receipt of incorrect Products to ABAG within ten (10) business days from the day Customer received the Products. If an error by ABAG results in non-delivery or shipment of incorrect Products, ABAG will, at its sole option, either ship, at no charge, the correct Products per Customer’s Order or credit Customer’s account for the original purchase price of the Products that were not shipped or were shipped in error, plus shipping charges.
If an error by Customer results in the shipment of incorrect Products and is reported to ABAG within ten (10) business days from the day Customer received the Products, Customer may request a Return Authorization. Where ABAG determines that the Product cannot be shipped back safely, ABAG may, at its option, refuse to issue a Return Authorization or to issue any credit. Products must be returned within thirty (30) calendar days of receiving a Return Authorization and must be in their original containers with the original labels and unaltered in form and content. Upon ABAG’s receipt of such Products, Customer will receive a credit for the original purchase price, less applicable Returned Products Charges.
Notwithstanding the foregoing, (i) custom Orders are ineligible for cancellation or return; (ii) claims for loss or damage of Products which ABAG determines occurred in transit must be made to the carrier and not to ABAG; and (iii) discrepancies with items ordered through a ABAG distributor must be handled with the distributor.
10. Privacy of Customer Data
11. Limited Warranty
Unless a different written warranty is included with Product inserts accompanying Products, ABAG warrants to the original Customer as follows: ABAG warrants that each Product will meet the Specification set out on the Product Datasheet in respect of the Product when used appropriately under normal conditions and will replace all Products not conforming to the Specifications, provided that ABAG shall not be liable under this warranty if the defect arises because the Customer has altered the Product in any way or failed to follow ABAG’s instructions accompanying delivery of the Product. The warranty will last from the time delivery is made until the Product’s expiration or “use by” date or its specified number of uses.
The warranties provided above and the remedies provided below will not apply to any Product if: (i) ABAG determines that a problem is caused by accident, abuse, misuse, negligence, misapplication, fire, earthquake, flood, other force majeure event, failure of electrical power, the use of unauthorized parts or reagents, or unauthorized repairs or modifications; (ii) ABAG determines that a problem is caused during or as a result of shipment or relocation; (iii) ABAG’s serial number has been removed or defaced from the Product; or (iv) a problem arises from or is based on ABAG’s compliance with Customer’s specifications.
For any breach of the warranties, Customer must notify ABAG of the claim during the applicable warranty period. If ABAG determines that the Product is defective and is covered by the warranty, ABAG’s sole and exclusive liability to Customer and Customer’s sole and exclusive remedy for warranty claims hereunder will be, at ABAG’s own expense and option, repair or replacement of the non-conforming Product.
The warranty period for the repaired or replaced Product will not exceed the warranty period for the defective Product.
The above warranties are exclusive, and ABAG makes no other warranty or representation of any kind whatsoever, express or implied, including without limitation any implied warranties of merchantability or fitness for a particular purpose, of suitability, of non-infringement, or regarding results obtained through the use of any product, whether arising from a statute or otherwise in law or from a course of performance, dealing or usage of trade, all of which are expressly disclaimed.
Any descriptions of the Products and any samples, Product inserts, online Product descriptions, and published catalogs, or similar material used in connection with the sale of Products are for the sole purpose of identifying the Products and are not to be construed as an express warranty that the Products will conform to such description. Any technical assistance provided by ABAG is advisory only.
12. Limitations on Remedies
In no event shall ABAG be liable to Customer for any special, incidental, consequential, punitive, indirect or exemplary damages of any kind, or lost profits or revenue, however caused, whether for breach or repudiation of contract, tort, breach of warranty, negligence, or otherwise, whether or not ABAG was advised of the possibility of such loss or damages.
Notwithstanding any other provisions of these Terms and/or any other agreement between ABAG and Customer for the purchase of the Products, ABAG’s total liability to customer arising from or in relation to these terms, an agreement between the parties or the Products, whether arising on contract, tort or otherwise, shall be limited to the total amount paid by customer to ABAG for the applicable Products. In no event will ABAG be liable for the cost of procurement of substitute goods.
Customer shall indemnify ABAG, defend and assume the settlement of, and the defense of any suit or suits or other legal proceedings brought to enforce all losses, damages, injuries, claims, demands, and expenses (“Liability”) arising out of the use of Products purchased by Customer hereunder, regardless of where, how, and by whom used, and shall pay all judgments entered in any such suit or suits or other legal proceedings, except for Liability resulting from ABAG’s gross negligence of willful misconduct. The indemnities and assumptions of liabilities and obligations herein provided for shall continue in full force and effect notwithstanding termination of this Agreement, whether by expiration of time, by operation of law, or otherwise.
14. Confidentiality and Intellectual Property
“Confidential Information” means any of ABAG’s business information, specifications and all related writings, drawings, designs and similar works or any other information which is disclosed by ABAG to Customer and labeled or marked as confidential, proprietary or its equivalent, or oral or visual information that is designated confidential, proprietary or its equivalent at the time of its disclosure. All Confidential Information shall be the exclusive property of ABAG, and ABAG retains all of its rights, title and interests. Customer agrees to use Confidential Information for the exclusive purpose of performing this Agreement. Customer shall not disclose or provide any Confidential Information to any third party and shall take all necessary measures to prevent any such disclosure by its employees, agents, contractors or consultants. Upon request of ABAG, Customer shall return all Confidential Information to ABAG.
Customer acknowledges that all intellectual property rights relating to Products, as between Customer and ABAG, are solely and exclusively owned by ABAG. ABAG’s sale of Products to Customer only grants Customer a limited, non-transferable right, for Customer to use the quantity of Products bought from ABAG in accordance with this Agreement. The act of ABAG selling Products to Customer does not grant Customer a license to ABAG’s intellectual property, or grant Customer the right to make or have made any Product or any portion thereof. The onus rests with the Customer to secure any required “freedom to operate” rights for other intended applications.
Any inventions (patentable or otherwise), discoveries, improvements, data, methods of use, know-how or other results that are conceived, developed, discovered, reduced to practice, or generated by or for ABAG, or jointly by ABAG and Customer, will be and will remain ABAG’s sole and exclusive intellectual property, and Customer shall transfer and assign, and hereby does assign, all of its rights, title and interests in and to any such joint intellectual property to ABAG and assist ABAG, at ABAG’s request and expense, in securing and recording ABAG’s rights in such intellectual property.
15. Force Majeure
ABAG shall not be liable for any failure to perform this Agreement when such failure is due to circumstances beyond its control. Circumstances beyond the control of ABAG include, but are not limited to, acts of God, war, terrorism, governmental action, accidents, labor trouble, and inability to obtain materials, equipment or transportation.
No oral statements, recommendations or assistance given by a representative and/or distributor of ABAG to Customer or its representatives in connection with the use of the Products will constitute a waiver by ABAG of any of the provisions hereof, or affect ABAG's liability herein. ABAG’s failure to exercise any rights under this Agreement is not a waiver of it rights to damages for Customer’s breach of contract and is not a waiver of any subsequent breach.
All provisions set forth herein regarding warranty, confidential information, indemnification, liability and limits thereon, and any other provisions that survive by their terms will survive any termination or expiration of this Agreement and any other written instrument delivered in connection herewith pursuant to the terms of such sections.
Customer may not assign, including by operation of law, its obligations hereunder without ABAG’s written consent.
In the event that any provision of the Terms is found to be invalid or unenforceable by law, the remainder of the Terms shall remain in full force and effect, the invalid or unenforceable provision shall be deemed severed from the Terms, and the invalid or unenforceable provision shall be modified in good faith to reflect the original intent of the provision.
19. Entire Agreement
This Agreement represents the entire agreement between the parties with respect to the subject matter hereof. No amendment or modification of the terms of this Agreement shall be binding on either party unless in writing, and signed on behalf of each party.
20. Governing Law/Disputes
Customer hereby agrees that the sole and exclusive jurisdiction and venue for any dispute with ABAG, or in any way relating to these Terms, this Agreement, or to Products purchased from ABAG, is the courts of Zurich, Switzerland. Customer further agrees that these Terms and all disputes with ABAG are governed by Swiss law. This paragraph survives expiration or termination of this Agreement.
arcoris bio AG.