General Terms & Conditions of Sale

Article 1. Scope of application

1.1 These general terms and conditions (hereinafter the “Agreement”) shall apply, without restriction or reservation, to all the offers and sales of products, goods, deliverables and services (hereinafter referred to respectively as the “Product(s)” and/or “Service(s)”) of Kaneka Eurogentec S.A., having its registered office at LIEGE Science Park, 5 Rue Bois Saint-Jean, 4102 Seraing, Belgium as well as of all its Subsidiaries and Branches throughout the world, irrespective of the mode of communication used (hereinafter referred to as “Kaneka Eurogentec S.A.” or the “Seller”). For the purpose of this Agreement:

• “Affiliates” means any legal entity which controls Kaneka Eurogentec S.A.
• “Subsidiaries” and “Branches” means any legal entity which is controlled by, or is under common control with Kaneka Eurogentec S.A. 

1.2 The Seller reserves the offer and sale of its Products and Services strictly for a professional public or a corporate body, for use exclusively for professional purposes (Business to Business). Any party that purchases Products or Services from the Seller in accordance with this Agreement (hereinafter referred to as the “Buyer”) represents, warrants and covenants that:

• it is a member of the professional public and shall use or resale the Products or Services exclusively for professional purposes in compliance with the terms and conditions of this Agreement; and
• it will handle, store, use, transport and dispose of all Products in compliance with all applicable laws, statutes and regulations.

1.3 This Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes all existing agreements and all other oral, written or other communications between them concerning their subject matter. This Agreement shall not be modified by the Buyer in any way except pursuant to article 1.5.

1.4 The Buyer is requested to keep a paper or electronic copy of this Agreement for future reference.

1.5 No departure from this Agreement shall bind the Seller without its prior, explicit consent in writing. Accordingly, all other terms and conditions provided on the order form or any other document from the Buyer, such as its own general terms and conditions, shall not apply. Any departure that the Seller has accepted in accordance with this article 1.5 shall be valid only for the particular order to which this departure pertains and shall not apply automatically to subsequent orders or contracts.

1.6 The Seller and the Buyer may be willing to negotiate and enter in writing into another contractual document to govern their business relationship (the “Particular Terms and Conditions”). In the event of contradiction between the terms and conditions of this Agreement and those of the Particular Terms and Conditions, the Particular Terms and Conditions will prevail (but then this Agreement shall only be superseded in respect of such particular Particular Terms and Conditions and in respect only of such specific matter).

1.7 Unless stipulated otherwise, for the purposes of this Agreement, the phrase “in writing” shall cover all written communication, whether by post, e-mail or fax.

 

Article 2. Offer and order

2.1 No verbal order by the Buyer shall be taken into consideration by the Seller unless it is confirmed by an order form in writing or by an order placed online on the Seller’s website in compliance with the instructions mentioned on said website.

2.2 Before placing an order via the Seller’s website, the Buyer is responsible to address an e-mail to info@eurogentec.com to ensure that the validity period of the Product corresponds to the use that the Buyer intends to make of this Product.

2.3 Orders placed on the website shall not be cancelled by the Buyer, unless a motivated cancellation request has been submitted to the Seller and accepted by the Seller.

2.4 Unless stipulated expressly otherwise in the written offer of the Seller, any offer made by the Seller shall be valid for a maximum period of thirty (30) calendar days only.

 

Article 3. Prices

3.1 The prices are quoted in euros, pounds sterling, US dollars or Swiss francs, exclusive of VAT and/or any other taxes, as applicable. Any increase in VAT and/or in any other taxes or any new tax imposed between the time that the order was placed, and the time of delivery shall be borne by the Buyer.

3.2 Unless stipulated otherwise in the Particular Terms and Conditions, the prices shall refer only to the supply of Products and Services described in the Particular Terms and Conditions, to the exclusion of all other works or services, and shall not include shipping and handling charges, duties and custom fees.

3.3 In case of website order, the Seller reserves the right to change the prices and specifications of Products and Services at all times without notice in the case of unavailability of raw materials or to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller such as, without limitation, any foreign exchange fluctuation, currency regulation, increase in the costs of labor, materials or other costs of manufacture, or modification of applicable laws. Such changes shall be applicable to any order placed after the initial appearance of said changes on the Seller’s website.

3.4 In the event of audit or inspection of Supplier’s facilities by the Buyer or by any regulatory authority, whatever if the audit or inspection is planned or unannounced, the Seller reserves the right to charge the Buyer an audit fee of Two Thousand Five Hundred Euros (2,500.00 €) per day.

 

Article 4. Payment

4.1 Invoices shall be payable within thirty (30) calendar days as of the date of invoice by wire transfer/check in the currency of the invoice, except otherwise specified in the offer made by the Seller. The payment must mention clearly the references mentioned on the invoice.

4.2 If an invoice is not paid on the date due, the Seller reserves the right to:

• suspend deliveries of orders in progress (albeit already partially processed) or subsequent orders in such a case, until payment has been made in full.
• cancel the sale according to article 10.
• require that the price and shipping charges of the Products and/or Services to be delivered subsequently be paid prior to such delivery of Products or Services.

4.3 Once the period of payment has expired, the Buyer shall, automatically and without prior notice, be liable for interest for late payment at the rate of twelve percent (12%) per year, compounded daily.

4.4 Any invoice not paid when due shall moreover be increased, as of right and without notice, by a flat-rate compensation of ten percent (10%) of the outstanding amount, as compensation for additional administrative expenses incurred by the Seller in connection with late payment by the Buyer, with a minimum of forty euros (EUR 40,-) or fifty-five US dollars (USD 55,-) or forty Swiss franc (CHF 40,-) or thirty pound (GBP 30,-) as applicable, without prejudice to any other compensation which the Seller would be entitled to claim in connection with such late payment.

4.5 If, in the Seller’s sole reasonable judgment, the Buyer’s credit rating deteriorates, then the Seller has the right, even after a partial processing of the order, to demand such guarantees from the Buyer as the Seller shall, in its sole discretion, deem suitable for the proper performance of the commitments undertaken. If the Buyer refuses to comply, then the Seller shall be entitled to cancel all or part of the order.

4.6 The Buyer shall notify the Seller in writing of any complaint relating to the amounts invoiced within fifteen (15) calendar days after the invoice date, otherwise the invoice shall be considered as being irrevocably and totally accepted by the Buyer.

 

Article 5. Conditions of delivery

5.1 Unless explicitly stipulated otherwise in the Particular Terms and Conditions, delivery shall be DAP - Buyer's warehouse (Incoterms 2020). Freight and insurance charges will be prepaid by the Seller, added to the invoice, and are payable by the Buyer plus a minimum packing and handling fee per shipment.

5.2 If at the time the order is placed, the Buyer provides an incorrect address, which requires the order to be redirected by the Seller to another delivery address, any and all additional shipping fees resulting from this redirection will be borne by the Buyer. In addition to these shipping fees, a flat-rate compensation of forty euros (EUR 40,-) or fifty-five US dollars (USD 55,-) or forty Swiss franc (CHF 40,-) or thirty pound (GBP 30,-), shall be due by the Buyer, as compensation for additional administrative expenses incurred by the Seller in connection with the redirection by the Buyer.

 

Article 6. Delivery periods

6.1 Unless express guarantee is given in the Particular Terms and Conditions, the delivery periods shall not be strict deadlines. The Seller may be held liable only if the delay is extensive and attributable to gross negligence on its part.

6.2 A delay in delivery shall under no circumstances lead to the cancellation of the order by the Buyer.

 

Article 7. Reservation of ownership

7.1 The Products and Services delivered shall remain the property of the Seller until the price has been paid in full, even in the case of transformation or incorporation of said Products into other goods. If payment is not made on the date due, the Seller may require the Products to be returned and the contract of sale to be cancelled. No collateral or other security of any nature whatsoever shall be granted on these Products. The Buyer shall notify the Seller immediately in writing of any distrain by a third party on these Products or other goods in which the Products may have been incorporated.

 

Article 8. Approval

8.1 The Products or Services shall be deemed to be approved by the Buyer seven (7) calendar days at the latest after delivery, unless a precise and detailed written complaint for non-conforming Products or Services is lodged by the Buyer with the Seller by registered letter prior to the expiry of this period.

 

Article 9. Limitation of liability

9.1 In case of non-conforming Products or Services, the Seller’s liability shall be limited strictly to the replacement of the non-conforming Products or Services or to the refund of their price, at Seller’s sole election.

9.2 Taking account of the specific nature of the Products and Services and the multiple possible applications, the Seller does not guarantee in particular that the Products and Services are adapted for the intended application, and it shall be the Buyer’s responsibility to verify and to make sure that the Products and Services are appropriate and adequate for the intended application.

9.3 To the full extent permissible under the applicable legislation the Seller may not be held liable for any cost or liability arising from or in connection with Products or Services, including damages or accidents to persons, damages to goods other than the Products or Services sold, loss of earnings or profits, harm to reputation, or any other prejudice arising directly or indirectly from the Products or Services, and including non-conforming Products or Services. In no event shall THE Seller be liable under this Agreement for any punitive, exemplary, indirect or consequential damages, including lost profits. EXCEPT IN CASE OF NON-CONFORMING PRODUCTS OR SERVICES FOR WHICH THE SELLER’S LIABILITY IS LIMITED TO THE REPLACEMENT OR REFUND AS SPECIFIED HEREIN, THE SELLER’S LIABILITY SHALL BE LIMITED TO THE TOTAL AMOUNT OF THE ORDER UNDER WHICH THE DAMAGE AROSE.

9.4 The Products ordered by the Buyer are intended for laboratory research and diagnostic purposes, subject to the conditions of the limited licenses provided for on the Seller’s website (https://www.eurogentec.com/en/license-statements), and shall correspond to the quality and safety standards in accordance with said purposes. They shall not be used by the Buyer for any other purposes such as (the list is not exhaustive), prophylactic, therapeutic, cosmetic, commercial ends, or as food, ingredients or medical devices. Without prejudice to the other provisions of this Agreement that limit or exclude the Seller’s liability, the latter shall accept no liability if the Buyer who ordered Products intended exclusively for laboratory research or diagnostic uses said Products for other purposes.

 

Article 10. Cancellation of the sale

10.1 The Seller shall be entitled to cancel the sale, as of right and without official notice, by apprising the Buyer of its intention by registered letter, in the event of serious breach on the part of the Buyer of its contractual obligations, in particular if there is a delay in payment of an invoice of more than 30 (thirty) calendar days, or if it turns out that the Buyer will not fulfill or is at serious risk of not fulfilling one of its main obligations, even before said obligation is due.

If the sale is cancelled by virtue of the previous paragraph, the Buyer acknowledges that the extent of the Seller’s damages may be difficult to ascertain and, therefore, the Buyer shall be liable to the Seller for liquidated damages of fifty percent (50%) of the total selling price of all Products and Services ordered by, but not yet delivered or provided to, the Buyer under this Agreement. The Seller nonetheless reserves the right to claim higher compensation.

 

Article 11. Confidentiality

11.1 The Parties acknowledge that all information, written or oral, of a technical, business, financial or other nature (including, without limitation, financial data, business plans, business arrangements and agreements, personal information, drawings, samples, devices, demonstrations, trade secrets, technical information) that is or may be disclosed under this Agreement is confidential and shall not be disclosed to any third-party without the prior written consent of the disclosing party. Notwithstanding the foregoing, the Seller shall be entitled to communicate confidential information to those of its and those of its Affiliates, directors, agents, subcontractors and employees who need to have access to such confidential information for the purposes of this Agreement and who are bound by written obligations of confidentiality.

11.2 Neither party shall reverse engineer, decompile, disassemble, chemically analyze, modify or create derivative works based on any Confidential Information provided hereunder in tangible form.

11.3 The parties shall be bound by obligation of confidentiality at any time for the duration of the Agreement and for a period of five (5) years thereafter, except for the trade secrets whose obligations of confidentiality and non-use shall remain in force indefinitely. The foregoing restrictions and confidentiality obligations shall not apply to the extent that the information disclosed, as demonstrated by tangible evidence: (a) is in the public domain at the time of disclosure or becomes part of the public domain by publication or otherwise, through no fault of the receiving party, (b) is received in good faith by the receiving party from a third party, free of any obligation of confidence, (c) at the time of disclosure can be demonstrated by written records to be previously known or possessed by the receiving party and that such possession was not a consequence of acquiring it directly or indirectly from the Disclosing party or any of its employees or agents; (d) is independently developed, as shown by written records, by the Receiving party who had no knowledge of, or access to, such confidential information.

11.4  Upon the disclosing party’s request, the receiving party shall promptly return all documents and other materials received from the disclosing party.

 

Article 12. Intellectual Property rights

12.1 The Seller does not guarantee that the sale and/or use of its Products and/or Services, alone or in combination with other products, or during a process, does not infringe the rights of third parties, including without limitation any patents, trademarks or copyrights of any third party.

12.2 The Seller shall remain the owner of intellectual property rights of which it is the holder or applicant prior to the effective date of this Agreement (“Seller Background IP”) as well as any improvement to such Seller Background IP developed by the Seller (“Seller Improvement IP”). In particular, the order placed by the Buyer for Products or Services, its execution and the delivery of said Products or Services ordered shall entail no assignment or transfer of, nor any license under, the Seller’s Background IP and Seller Improvement IP.

12.3 The Buyer shall remain the owner of intellectual property rights of which it is the holder or applicant prior to the effective date of this Agreement (“Buyer Background IP”). In particular, the order placed for Products or Services by the Buyer shall not entail any assignment or transfer of the Buyer Background IP.

12.4 Notwithstanding the foregoing, if, in order to carry out the order, the Seller has to use or implement the Buyer Background IP, then the Buyer hereby grants the Seller a royalty-free and worldwide license under such rights to use and to implement such Buyer Background IP solely as needed to carry out the order.

12.5 Notwithstanding the foregoing, if, in order to use the Products and/or Services, the Buyer has to use the Seller Background IP, then the Seller hereby grants the Buyer a royalty-free and worldwide license under such rights to use such Seller Background IP solely as needed to use the Products and/or Services.

12.6 The Buyer shall in no event decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, techniques or algorithms in the Products or Services by any means whatever, except as may be specifically authorized in advance by the Seller in writing.

 

Article 13. Voidance

13.1 If any of the clauses of this Agreement were, for one reason or another, to be considered null and void, illegal or inapplicable, said clause shall be replaced by a valid, legal and applicable provision that reflects as well as possible the Seller’s original intent, and the validity, legality or applicability of the other clauses shall not be affected nor reduced as a result.

 

Article 14. Export Control

14.1 Where applicable, the Buyer shall comply with all United States laws and regulations controlling the export of certain commodities and technical data, including without limitation all Export Administration Regulations of the United States Department of Commerce. Among other things, these laws and regulations prohibit, or require a license for, the export of certain types of commodities and technical data to specified countries. The Buyer hereby gives written assurance that it will comply with all United States export control laws and regulations, that it bears sole responsibility for any violation of such laws and regulations by itself, and that it will indemnify, defend, and hold the Seller harmless for the consequences of any such violation.

 

Article 15. Indemnity

15.1 The Buyer shall defend, indemnify and hold the Seller, and the directors, officers, employees and agents of either (collectively, the “Indemnitees”), harmless from all losses, liabilities, damages and expenses (including attorneys' fees and costs) incurred as a result of (i) any breach of this Agreement by the Buyer, (ii) the use, application of, distribution, sale, handling, disposal or other exploitation of any Product or Services by or on behalf of the Buyer or by any subsequent purchaser or transferee of such Product or Services, and (iii) the use or implementation of intellectual rights that are owned by the Buyer and/or obtained by the Seller in accordance with article 12.4, including claims that the use or practice of such rights by the Seller under this Agreement infringes the rights of any third party.

15.2 Any Indemnitee claiming that it may be entitled to indemnity under article 15.1 shall give prompt written notice of such claim to the Buyer; provided that any delay in such notice shall not release the Buyer from its obligations under article 15.1 unless and to the extent such delay has materially prejudiced the defense of such claim. The Buyer shall retain competent counsel to defend such claim, and shall control the defense and settlement of such claim; provided, however, that (i) the Buyer shall not admit any fault, liability or wrong-doing on behalf of any Indemnitee, and (ii) the Buyer shall keep each Indemnitee informed of the status of such claim, including prompt notice of any settlement offers made by any third party claimant. An Indemnitee may, at its cost and expense, retain separate counsel in connection with the defense of any such claim.

 

Article 16. Disclaimer of Warranty

16.1 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL PRODUCTS AND SERVICES ARE PROVIDED TO THE BUYER (a) “AS IS” AND WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE AND (b) WITHOUT ANY REPRESENTATION OR WARRANTY THAT THE USE OF PRODUCTS OR SERVICES WILL NOT INFRINGE ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, INCLUDING ANY PATENT, TRADEMARK OR OTHER RIGHT.

 

Article 17. Applicable law – competent courts

17.1 If the Seller’s legal entity is located in the United States of America, this Agreement shall be governed by the laws of California, irrespective of (i) the place of the delivery, (ii) the Buyer’s country/state of residence, or (iii) the conflict of laws principles applied by such country/state. Any dispute relating, directly or indirectly, to the existence, interpretation, performance or cancellation of this Agreement shall be referred exclusively to the United States District Court for the Northern District of California or in State Court in Fremont, California, even in cases involving several defendants or in third party proceedings. The Buyer hereby waives any objection to such exclusive jurisdiction and on the basis that such courts may be an inconvenient forum. 

17.2 If the Seller’s legal entity is located outside the United States of America, this Agreement shall be governed by the laws of Belgium, irrespective of (i) the place of the delivery, (ii) the Buyer’s country/state of residence, or (iii) the conflict of laws principles applied by such country/state. Any dispute relating, directly or indirectly, to the existence, interpretation, performance or cancellation of this Agreement shall be referred exclusively to the Courts of Liège, Belgium, even in cases involving several defendants or in third party proceedings. The Buyer hereby waives any objection to such exclusive jurisdiction and on the basis that such courts may be an inconvenient forum.

 

Article 18. General

18.1 The Buyer may not assign this Agreement without the express prior consent of the Seller, except in connection with the sale or transfer of all of the Buyer’s assets to which this Agreement relates. The Seller may assign this Agreement without the consent of the Buyer.

18.2 No failure or delay by either party in exercising any right, power or remedy under this Agreement will operate as waiver of any such right, power or remedy or of any other right, power or remedy under this Agreement.

18.3 Nothing in this Agreement shall be deemed to create a joint venture or other joint relationship. Neither party shall have any actual, apparent or implied authority as a result of this Agreement to create any obligation, express or implied, on behalf of the other party.

 

 

END OF AGREEMENT