1. General; These Terms and Conditions of Sale/Supply (“Terms and Conditions”) shall govern the sale and licence to the purchaser (“Buyer”) of xxpress thermal cyclers, assays, reagents, instruments, software, and other products and related services (“Products”) by BJS or one of its subsidiaries named on the invoice or acknowledgement (BJS Biotechnologies Ltd 65 BIDEFORD AVENUE PERIVALE GREENFORD MIDDLESEX UB6 7PP Company No. 02959160 or any one of its subsidiaries or affiliated companies named on the invoice is referred to here as “BJS”) provided to Buyer in connection therewith. These Terms and Conditions shall replace and supersede any current or future purchase orders or similar forms that are not mutually signed by BJS and Buyer. Purchase orders, once accepted by BJS, are not subject to cancellation or modification by Buyer without BJS’ written consent.
2. Price; Prices exclude all insurance, freight, taxes, fees, duties and levies, which shall be payable by Buyer.
3. Delivery; Products will be packed in BJS’ standard shipping packages. BJS may make partial deliveries. BJS will ship via carrier selected by BJS. Delivery dates set forth on a purchase order accepted by BJS are subject to change and are predicated on conditions existing at that time. BJS does not guarantee any delivery dates and shall not be responsible for any loss or damage of any kind or nature whatsoever caused by any delay in delivery irrespective of the cause of such delay. (a) For Deliveries: Tender will be FCA shipping point.
4. Rejection; Any claims for damaged, missing or defective Product must be reported in writing to BJS by Buyer within five (5) days from the date of receipt of Product. For any valid claim made, BJS shall repair or replace the Product. The foregoing shall be Buyer’s sole and exclusive remedy for damaged or missing Products, and, except for express warranty rights, for defective Products.
5. Payment; Buyer will be invoiced at the time of shipment of each Product. Buyer shall make payment in full within thirty (30) days of the date of the invoice. Late payments may incur a charge at the rate of one and one-half percent (1.5%) percent per month, or the maximum allowed by law, whichever is less. Further shipment of Products may be declined without advance notice if Buyer fails to make any payment when due, or if the financial condition of Buyer becomes unsatisfactory to BJS. Sales by BJS shipped outside the U.K. may require payment on an irrevocable letter of credit reasonably acceptable to BJS.
6. Limited Warranty;
- For new instruments; BJS warrants to and only to Buyer for twelve (12) months from the date of shipping (or for the period specified in the BJS sales quote for limited-life parts if different), whichever is the shorter, that the software and instruments are free from defects in material and workmanship and conform to BJS’ published specifications in all material respects.
- For repair work on instruments; Where BJS undertakes either (a) work under the warranty above for new instruments (b) repair work for BJS products not under warranty BJS warrants to and only to Buyer for ninety (90) days from the date of installation (or for the period specified in the BJS sales quote for limited-life parts) that the software and instruments are free from defects in material and workmanship and conform to BJS’ published specifications in all material respects. Service will be provided pursuant to BJS’ standard service terms and conditions.
- Limitation on warranty – New Instruments and Repair Work : BJS’ sole and exclusive liability (and Buyer’s sole and exclusive remedy) under the foregoing warranties shall be to repair or replace software and instruments or provide Buyer a refund, as solely determined by BJS. Nonconforming instruments will be serviced at Buyer’s facility or, at BJS’ option, BJS’ facility. If service is performed at BJS’ facility, BJS will bear shipping costs. Once repair is arranged the refurbished and new instruments continue to be warranted to the end of the original warranty period for that Product (or three months from delivery of such repaired Product if shorter).
- For reagents; reasonably determined by BJS to be defective, independent of user error, shall be replaced by BJS on a 1:1, like-kind basis at no cost to Buyer provided that such defective probe arrays or reagents were used by Buyer prior to their expiration date, or if there is no expiration date, the Products were used within six (6) months of receipt, and the defect was promptly reported with appropriate detail to BJS’ technical support.
- Technical Assistance; BJS, may, in its own discretion, furnish technical assistance and information with respect to the Products. BJS is under no obligation to provide technical assistance or information about BJS products. Any suggestions by BJS regarding use, selection, application or suitability of the Products shall not be construed as a warranty.
- Extended Warranty: Where Buyer chooses to purchase an extended warranty for BJS Products after cessation of the new Product warranty above, such extended warranty shall be on the terms supplied to the Buyer in writing at the time and as offered with that warranty from time to time.
Except as provided above, any warranty provided herein does not apply to other consumables, or to any defect caused by failure to provide a suitable storage, use, or operating environment, use of non-recommended reagents, spills, or the use of the Products for a purpose or in a manner other than that for which they were designed, modifications or repairs done by Buyer, or any other abuse, misuse, or neglect of the Products. This warranty applies only to Buyer and not third parties. The foregoing is not intended to limit any warranty extended to Buyer by a third party original equipment manufacturer of a Product or component thereof, provided that any remedy received by Buyer under any such warranty shall relieve BJS of its obligations with respect to the subject of such remedy. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BJS AND ITS SUPPLIERS DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. However nothing in these terms shall exclude or limit liability for death or personal injury caused by negligence nor for fraud.
7. Pre-release Products (Not Applicable to Products Marketed for IVD Use); If any Product is a beta, technology access, early access, or other pre-commercial release version (“Pre-release Product”), then this Section applies. To the extent that any provision in this Section is in conflict with any other term or condition in these Terms and Conditions, this Section shall supersede such other term(s) and condition(s) with respect to the Pre-release Product, but only to the extent necessary to resolve the conflict. Buyer acknowledges that the Pre-release Product is a pre-release version, does not represent final product from BJS, and may contain defects, bugs, errors and other problems that could cause system or other failures, sample loss and data loss. CONSEQUENTLY, THE PRE-RELEASE PRODUCT IS PROVIDED TO YOU “AS IS”, AND BJS DISCLAIMS ALL WARRANTIES (INCLUDING THE LIMITED WARRANTY SET FORTH ABOVE) AND ALL LIABILITY OBLIGATIONS TO BUYER OF ANY KIND TO THE FULLEST EXTENT PERMISSIBLE BY LAW EXCEPT FOR LIABILITY FOR DATE, PERSONAL INJURY AND FRAUD.. Buyer acknowledges that BJS has not promised or guaranteed to Buyer that Pre-release Product will be announced or made available to anyone in the future, that BJS has no express or implied obligation to Buyer to announce or introduce the Pre-release Product and that BJS may elect not to introduce a product similar to or compatible with the Pre-release Product. Accordingly, Buyer acknowledges that any research or development that Buyer performs using the Pre-release Product or any product associated with the Pre-release Product is done entirely at Buyer’s own risk.
8. Limited Licence; Subject to these Terms and Conditions, and to the terms and conditions of any licence provided by BJS that is specific to a particular Product (which shall govern with respect to such Product in the event of conflict with these Terms and Conditions), BJS hereby grants to Buyer a non-exclusive, non-transferable, non-sub-licensable licence to use the Product(s) provided to Buyer by BJS only in accordance with the manuals and written instructions provided by BJS. Buyer understands and agrees that except as expressly set forth in these Terms and Conditions (or in the BJS-provided licence specific to a particular Product), no right or licence to any patent or other intellectual property owned or licensable by BJS is conveyed or implied by these Terms and Conditions or any Product. In particular, no right or licence is conveyed or implied to use any Product provided hereunder in combination with a product not provided, licensed or specifically recommended by BJS for such use.
9. Product Uses; Products of BJS which are or may be drugs, food additives or diagnostic reagents, as described in the federal food, drug and cosmetic act, are for investigational use only in laboratory research animals or testing in vitro, and are not for drug, new drug, veterinary drug, food, food additive or human use. Unless otherwise indicated, all products are distributed and sold for chemical purposes only, not for drug use or for application to or ingestion by humans or for commercial horticulture use, for pesticide use, for application to or ingestion by animals or for veterinary drug use. All products sold by BJS to Buyer shall be used by qualified professionals only. The burden for safe use and handling of all products sold by BJS to Buyer is entirely the responsibility of Buyer and anyone who purchases the Products from Buyer and uses them. Absence of hazardous warnings does not imply non-toxicity.
10. Products Marketed for Research Use Only; Products marketed by BJS for research use only do not have the approval or clearance of the U.S. Food and Drug Administration (“FDA”) or other regulatory approval, clearance or registration for in vitro diagnostic (“IVD”) use. No licence is conveyed or implied for Buyer to use, and Buyer agrees not to use, such Products in any manner requiring FDA or other regulatory approval, clearance or registration relating to IVD use. As BJS’ goods are intended for research purposes may not be on the Toxic Substances Control Act (“TSCA”) inventory, Buyer assumes responsibility to ensure that the Products purchased from BJS are approved under TSCA, if applicable. Consistent with Buyer’s agreement to comply with all TSCA and Research and Development substance exemption (the “R&D exemption”) requirements applicable to the purchase, Buyer agrees and warrants that Buyer will comply with all the 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. Buyer also agrees and warrants that Buyer will use or sell (if otherwise so authorized) the R&D substance exclusively for R&D purposes or specified exempt commercial purposes. Buyer specifically agrees and warrants that Buyer will not sell or distribute the R&D substance to consumers.
11. Products Marketed for In Vitro Diagnostic Use; Products marketed by BJS for IVD use have been cleared by the FDA, and CE marked in the European Union, for IVD use. No licence is conveyed or implied for Buyer to use, and Buyer agrees not to use, such Products in any manner requiring other regulatory approval, clearance or registration relating to IVD use. The BJS xxpress Thermal Cycler Instrumentation System for IVD use requires calibration and maintenance once a year by authorized BJS personnel to ensure system performance. Failure to maintain the system as recommended may result in the failure of the system to perform in accordance with specifications published by BJS.
12. Use Restrictions; Buyer is not licensed to, and agrees not to: (a) resell any BJS-supplied probe array or reagent, (b) transfer, or distribute any BJS-supplied probe array or reagent, directly or indirectly, to any third party for any purpose or use, except as otherwise approved by BJS in writing; (c) use or allow anyone to use any BJS-supplied probe array or reagent more than once, or dilute any BJS-supplied reagent; or (d) provide a fee-for-service or other non-collaborative sample processing service to third parties using an BJS-supplied probe array or reagent (e.g., wherein the service provider offers standardized services for standardized fees to multiple third parties, the customer does not contribute scientifically to the services performed, and all rights to the results and discoveries derived therefrom are transferred to the customer).
13. Product Improvements; Except to the extent prohibited by applicable law, Buyer hereby grants to BJS a non-exclusive, worldwide, fully sub-licensable, fully paid-up, royalty-free, irrevocable, perpetual licence to all Product Improvements. Buyer shall disclose all Product Improvements to BJS. For purposes of this Section, a “Product Improvement” shall mean any invention conceived or reduced to practice using a Product that relates to (a) design, manufacturing, layout or packaging of nucleic acid probes or probe arrays; (b) manual or automated assay techniques that may be used in connection with probe arrays or similar products (including techniques related to nucleic acid extraction, amplification, labeling, dilution and other processes); or (c) software analysis techniques relating to the extraction or storage of data generated using probe arrays. “Product Improvements” shall not include data generated using Products or discoveries derived therefrom (except as expressly set forth in (a) – (c) above).
14. Confidentiality for Custom Products; If Buyer discloses to BJS a _Buyer Product_________pursuant to these Terms and Conditions, upon Buyer’s request, BJS agrees to use reasonable efforts not to disclose or use such confidential information disclosed to it by Buyer for any purpose other than designing and manufacturing such Products, supplying them to Buyer and/or other parties designated by Buyer, otherwise performing its obligations to Buyer (and any obligations BJS may have to such other parties), and for other purposes authorized by Buyer. The provisions of this Section shall not apply to any information which (a) is known or used by BJS prior to Buyer’s disclosure to BJS; (b) is disclosed to BJS by a third party under no obligation of confidentiality to Buyer; (c) is or becomes published or generally known to the public through no fault of BJS; or (d) is independently developed without reference to such confidential information disclosed to BJS by Buyer. Notwithstanding the foregoing, BJS shall be permitted to disclose such information in order to comply with applicable laws, a court order, or governmental regulations, provided that BJS has provided Buyer with prior notice of such disclosure, to the extent reasonably practicable. BJS’s obligations under this Section shall terminate three (3) years following the date of disclosure.
15. Buyer Products – Responsibility; Buyer shall be fully responsible for products of the buyer which are used by BJS in performing this Agreement ( “the Buyer Product”) if any , including the obtaining of all required consents, and Buyer agrees to indemnify BJS and its employees, officers, directors, representatives, contractors, suppliers and any affiliate of the foregoing (the “BJS Group”) and hold each of them harmless from and against any losses, liabilities, demands, damages, costs and expenses, including without limitation reasonable legal fees and expenses, arising from or relating to the Buyer Products or their use. Buyer agrees fully to cooperate with the BJS Group and its counsel in its defence and preparation for any such action or proceeding.
16. Liability Limitation; EXCEPT TO THE EXTENT CAUSED BY BJS’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR REQUIRED BY APPLICABLE LAW, BJS SHALL HAVE NO LIABILITY FOR ANY LOSS OF USE OR PROFITS, PROCUREMENT OF SUBSTITUTE GOODS OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES OF ANY KIND, HOWEVER CAUSED AND REGARDLESS OF FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF BJS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; IN ANY EVENT BJS’ LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY BUYER TO BJS IN THE PRIOR TWELVE (12) MONTHS. BUYER UNDERSTANDS THAT THE RISKS OF LOSS HEREUNDER ARE REFLECTED IN THE PRICE OF THE PRODUCTS AND THAT THESE TERMS WOULD HAVE BEEN DIFFERENT IF THERE HAD BEEN A DIFFERENT ALLOCATION OF RISK.HOWEVER IN NO EVENT SHALL ANY PROVISION OF THESE TERMS EXCLUDE OR LIMIT BJS’ LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE NOR FOR FRAUD.
17. Export Controls; Buyer acknowledges that the Products and related materials may be subject to export controls under the U.S. Export Administration Regulations and related U.S. laws and UK such legislation. Buyer will (a) comply strictly with all legal requirements established under these controls, (b) cooperate fully with BJS in any official or unofficial audit or inspection that relates to these controls and (c) not export, re-export, divert, transfer or disclose, directly or indirectly, any Product or related technical documents or materials or any direct product thereof to any country (or to any national or resident thereof) which the U.S. or UK Governments determine from time to time is a country (or end-user) to which such export, re-export, diversion, transfer or disclosure is restricted, without obtaining the prior written authorization of BJS and the applicable U.S. or UK Government agency.
18. Unforeseen Events; BJS shall not be liable for delay or failure in performance of any obligations hereunder if performance is rendered impracticable by the occurrence of any condition beyond the reasonable control of BJS. In the event of any such delay or failure in performance, BJS shall have such additional time within which to perform its obligations hereunder as may reasonably be necessary under the circumstances.
19. Miscellaneous; These Terms and Conditions constitute the entire agreement between Buyer and BJS with respect to the subject matter hereof and is the final, complete, and exclusive statement of the terms of the agreement, superseding all prior written and oral agreements, understandings and undertakings with respect to the subject matter hereof. The waiver of any provision or any breach thereof shall not affect any other provision of these Terms and Conditions. To the extent permitted by applicable law, these Terms and Conditions shall be governed by and construed according to the laws of England and Wales. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions. In the event that any provision of this Agreement or portion thereof is found to be illegal or unenforceable, the Agreement shall be construed without the unenforceable provision or portion thereof which shall be deemed severed from its provisions. Nothing in these terms shall confer any enforceable right on a third party whether under the Contracts (Rights of Third Parties) Act or otherwise.