1 Scope
1.1 All quotations and sales by mAbvice are subject to and expressly conditioned upon the terms and conditions contained herein. By placing an order or requesting a quotation the purchaser consents to these terms and conditions.
1.2 If purchaser submits any order acknowledgement or other document that contains terms and conditions that are inconsistent with or in addition to the terms and conditions contained herein, those inconsistent or additional terms are specifically rejected by mAbvice.
1.3 No variation of the terms and conditions contained herein will be binding upon mAbvice unless agreed to in writing by an authorised representative of mAbvice.
2 Purchaser disclosure and quality of provided materials
2.1 The purchaser warrants that prior to placing an order or requesting a quotation that they have provided mAbvice with all relevant information to prepare an accurate quote or complete an order. This includes but is not limited to accurate sequences, information about previous expression yields and any previous unsuccessful attempts at completing this project.
2.2 If the purchaser provides inaccurate information, or fails to disclose relevant information, mAbvice retains the right to amend the gross sales price to reflect the changes to the order or cancel the order in its entirety and charge one hundred (100) percent of the gross sales price of the original order. mAbvice shall have no liability for any delays or any inappropriateness of the product or services supplied in such cases.
3 Order changes and cancellations
3.1 Orders may be changed or amended only by written agreement by both parties, stating the particular changes and the effect, if any, on the price and time of delivery.
3.2 Purchaser may cancel an order only by providing written notice to mAbvice. If no work towards the order has been performed by mAbvice the order will be cancelled and the purchaser charged an administrative fee of five (5) percent of the gross sales price of the original order. If work towards the order has commenced by mAbvice, cancellation of an order at any time shall result in an immediate charge of one hundred (100) percent of the gross sales price of the original order unless otherwise agreed in writing by an authorised representative of mAbvice.
4 Delivery and acceptance
4.1 mAbvice will provide any advice and perform all services to the best of its knowledge and ability and in accordance with professional standards.
4.2 Purchaser may revoke acceptance of any services which are not in compliance with the specifications as provided set out in the order or accepted quotation within thirty (30) days from the date of delivery.
5 Prices and taxes
5.1 All taxes, duties, levies and similar expenses which are or become due in connection with an order with the exception of any taxes on mAbvice’s profits are for the account of the purchaser.
6 Payment
6.1 Payment is due without any deductions, discounts, set off or debt settlement within thirty (30) days of receipt of the respective invoice(s).
6.2 On the completion of key activities within an order clients will be part-invoiced. Milestone payments will be set-out in the quotation.
6.3 If an invoice balance is overdue, without waiving any other rights and remedies at law or relative to any order, mAbvice may: (a) refuse to accept additional orders; (b) refuse to render further services; and/or (c) seek collection from purchaser, including all legal fees and other costs of collection.
6.4 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 mAbvice 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 Product ownership and retention of title
7.1 Title to and ownership of products delivered by mAbvice to the purchaser shall be retained by mAbvice until mAbvice has received payment in full.
8 Limited warranty and remedy
8.1 mAbvice warrants to the purchaser for a period of thirty (30) days from the date of delivery, that the products shall conform in all material aspects to the specifications of mAbvice, as provided in the relevant quotation, or on mAbvice’s website or in other literature provided by mAbvice; provided, however, that the products have been stored under the prescribed conditions during such warranty period.
8.2 mAbvice’s duty under this warranty shall be to replace such portion of products as are proven to not conform to specifications as set out here above or, at mAbvice’s option, rework such parts or products or have them repaired at mAbvice’s order, always free of charge, provided that: (i) mAbvice is informed by the purchaser in writing within ten (10) days after the defect(s) have been revealed; (ii) purchaser shall afford mAbvice prompt and reasonable opportunity to inspects all products as to which any claim is made. 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 storage in the event of the products wholly or partly being stored by the purchaser prior to use.
8.3 Except for the foregoing warranty mAbvice expressly disclaims to the fullest extent permitted by law all warranties express or implied in relation to the products and associated services. Without prejudice to the foregoing generality mAbvice does not warrant the merchantability or fitness for a particular purpose of the products or any aspect of their performance or that they or their use will not infringe the intellectual property rights of a third party.
9 Limited Liability
9.1 mAbvice’s total liability in relation to this contract, the warranty contained herein and in relation to the products and services provided under or in relation to this contract whether arising in contract, tort or by some other theory of law or equity shall be capped at the amount paid by purchaser for the relevant products or services.
9.2 In no event shall mAbvice or its affiliates or their respective representatives be liable to the 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 mAbvice has been advised of the possibility of such damages.
9.3 Nothing herein shall limit mAbvice’s liability for death or personal injury arising from its negligence or malfeasance.
10 Intellectual property
10.1 By entering into each and any contract, the purchaser acknowledges that all know how and intellectual property rights in respect of assays, reagents, antibodies, sequences, proteins, cell lines, vectors, working and testing methods, procedures and protocols originated or used by mAbvice prior to any purchaser’s order or contract with purchaser, or as may be used or improved during the services hereunder, shall, as between the parties, be retained by mAbvice (the “mAbvice IP”).
10.2 Except for the mAbvice IP, mAbvice agrees that all materials, products, reports, information, discoveries, sequences, specimens or inventions, whether copyright patentable or not, arising from mAbvice’s performance of services pursuant to an accepted order or contract for services, (collectively the “Results”) shall promptly be disclosed to purchaser and, subject to payment of all amounts due by Purchaser under such order or contract, purchaser will acquire all right, title and interest in and to the Results, and mAbvice hereby irrevocably assigns, and transfers to Purchaser the entire right, title and interest of mAbvice in and to the Results free from any liens or encumbrances. mAbvice agrees to assign, and have any and all its personnel participating in the relevant services assign, all rights each and all may have in such Results to purchaser and execute any related documents purchaser may reasonably require to give effect to this clause.
10.3 In the event purchaser requires MAbvice to perform services concerning products, materials or processes owned or to be owned by purchaser or third parties or unrevealed sources, mAbvice shall be deemed granted a licence under purchaser or third parties’ intellectual property rights to perform same.
11 Purchaser’s representations and indemnity
11.1 Purchaser represents and warrants that it shall use all materials and other products ordered in a lawful manner.
11.2 Purchaser shall defend mAbvice, its employees, agents, affiliates and Contractors (the "mAbvice Indemnitees"), and shall indemnify and hold the mAbvice Indemnitees harmless from and against all suits, actions, or proceedings, at law or in equity, and from all claims, costs, liability, 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) products, process or related information, if applicable, being wrongfully disclosed by purchaser to mAbvice or others hereunder, (2) infringement, misappropriation, and/or conversion as a result of mAbvice possession and/or use of such products, process or related information disclosed by purchaser, (3) purchaser’s use or any third party’s use of the Results, whether or not used, applied, made available, licensed or sold in combination with or incorporated in other product or process, or (4) 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 products, or its manufacture or sale of any Results, products or utilizing of products or process.
12 Confidentiality
12.1 Neither party shall disclose any confidential information of the other party to any third party, each party shall (i) advise its employees of the proprietary nature of the confidential information and the terms and conditions of this Agreement requiring that the confidentiality of any such information be maintained and (ii) use all reasonable safeguards to prevent unauthorized use by such employees. Each party shall be responsible for any non-compliance with, or breach of, this Agreement by any of its employees to which it has disclosed the other party’s confidential information.
12.2 The obligations of confidentiality and non-use shall not apply to confidential information that the receiving party can demonstrate by contemporaneous, written or electronic documentation:
a) is in the public domain by use and/or publication at the time of its receipt from the other party or thereafter enters into the public domain through no breach of this Agreement by it; or
b) was already in its possession prior to receipt from the other party or is independently developed without use of, or reliance on, confidential information received hereunder; or
c) is properly obtained from a third party that has a valid right to disclose such confidential information and does not have a confidentiality obligation to the disclosing party.
12.3 In the event a receiving party is required to disclose any confidential information received under this Agreement in order to comply with any law, regulation or valid court order, such receiving party may disclose such confidential information only to the extent necessary for such compliance; provided, however, that such receiving party shall, to the extent permitted by law, give the other party reasonable advance written notice of the required disclosure to provide such other party with the opportunity to seek confidential treatment of any confidential information to be disclosed and/or to obtain a protective order to prevent disclosure or to narrow the scope of disclosure and shall reasonably cooperate with such other party's efforts to seek confidential treatment of any confidential information to be disclosed and/or to obtain a protective order. Confidential information that is disclosed pursuant to such required disclosure shall remain otherwise subject to the confidentiality and non-use provisions set forth herein.
13 Force majeure
13.1 Delay in performance or non-performance of any obligation contained herein, other than purchaser's obligation to pay, shall be excused to the extent such failure or non-performance is caused by force majeure. Force majeure shall mean any cause or event preventing performance of an obligation under the order or contract which is beyond the reasonable control of mAbvice or purchaser, as the case may be, including without limitation, fire, flood, power shortage, mechanical breakdown, sabotage, shipwreck, embargo, explosion, strike or other labour 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. The party prevented to perform by force majeure shall promptly provide notice to the other party, explaining in detail the full particulars and the expected duration thereof and it 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 or contract may be terminated without any liability by either party upon written notice thereof to the other. In the event of a force majeure compelling mAbvice to allocate production and deliveries of products, mAbvice may allocate its available supply of products among mAbvice customers (including purchaser) and mAbvice internal uses in such manner as mAbvice deems fair and reasonable. Such allocation shall not be deemed a breach of contract.
14 Governing law and venue
14.1 This Agreement shall be subject to and construed in accordance with the laws of England. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
14.2 The exclusive venue for proceedings arising under this Agreement shall be a court of competent jurisdiction in England.
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