As used in these Terms and Conditions, “Equipment” means any instrument supplied by SEROSEP to the Customer/ Distributor for use in relation to any Products; “End Users” means those third parties to whom the Distributor may sell or supply any Products where applicable.
- Products. SEROSEP has the right to make changes in the composition of the Products which, in SEROSEP’s opinion, do not affect the general characteristics or properties of the Products or are within applicable governmental or industry standards. SEROSEP reserves the right from time to time to substitute a Product with a product that has the same function as such Product, or to delete a Product from its product lists. Customer/ Distributor represents that any Products or Equipment purchased or acquired under the Agreement shall be used by qualified professionals and in accordance with applicable law.
- Use of Products. Customer/ Distributor acknowledges that it will contractually oblige its End Users to comply with any instructions or directions contained in the Product labeling and literature concerning the Products and will forward such information to its End Users, employees, agents, and contractors where applicable. Customer/ Distributor shall use (and shall contractually oblige its End Users to use where relevant) Equipment only (i) in the manner described in the User Manual; and (ii) in accordance with all applicable laws and regulations. Customer/ Distributor shall not make any changes or alterations in, or attachments to, the Equipment or the Products, or remove any labels, signs, symbols, trademarks, or serial numbers affixed to the Equipment or the Products.
- Equipment. Upon request of SEROSEP, Customer/ Distributor will arrange and permit that SEROSEP may, upon reasonable notice, enter upon the premises of Customer/ Distributor and/or the End users for the purpose of inspecting the Equipment. Furthermore, the Customer/ Distributor shall enter into service contracts for the Equipment with such third parties as the SEROSEP shall from time to time nominate.
- Payment Terms, Pricing and Tax Information. Terms of payment by Customer/ Distributor to SEROSEP are strictly net thirty (30) days from date of invoice. Where the Customer/ Distributor has negotiated different terms separately they will supersede the 30 days rule. Customer/ Distributor’s obligation to pay outstanding invoices and all other amounts is absolute and unconditional and is not subject to any abatement, reduction, set-off, defense, counterclaim, interruption, deferment or recoupment for any reason whatsoever. All overdue payments shall bear interest at a rate of one and one-half percent (1.5%) per quarter or the maximum rate permitted by applicable law, whichever is lower, until paid. Unless Customer/ Distributor is fully exempt from all taxes, Customer/ Distributor shall reimburse SEROSEP for, or pay directly if requested by SEROSEP, all federal, state and local taxes which may be imposed upon the use, possession, ownership or sale of the Products and/or the Equipment.
- Delivery and Shipment Terms. SEROSEP will use commercially reasonable efforts to deliver accepted orders in accordance with its delivery schedule provided by the order acceptance, acknowledgment, confirmation or similar document, and if no such schedule is stated, promptly. All Products transported outside the Island of Ireland will be shipped by SEROSEP ex works from Annacotty, Ireland. All duties, taxes, transportation expenses, handling charges, freight and insurance (if any) shall be discharged by Customer/ Distributor, and SEROSEP shall not be required to discharge same for Customer/ Distributor. For all international orders Distributor will select the mode of shipment and the carrier, and shall thereby assume all liability in connection with the shipment and the carrier shall not be construed as an agent of SEROSEP. However, the risk of loss, damage and delay to the Products will pass to Customer/ Distributor ex works at Annacotty, Ireland. SEROSEP shall not be obligated to procure insurance for such shipments.
- Customer/ Distributor Product Inspection, Acceptance and Returned Goods Policy. Customer/ Distributor will accept or reject Products for faults, damage or defects within 30 days following receipt of each shipment. In the event that Customer/ Distributor does not provide written notice within 30 days of receipt of each shipment, Customer/ Distributor shall be deemed to have accepted the Products. For clarity, Customer/ Distributor’s acceptance of Products shall not preclude any of its other rights and remedies under this Agreement, including Customer/ Distributor’s right to make claims with respect to latent defects of any Products under the warranty provisions of this Agreement. In the event a Product should be found by Customer/ Distributor, within such 30-day period, to fail the IFU Specification provided with the products provided by SEROSEP or to be otherwise visibly damaged or defective, Customer/ Distributor shall so notify SEROSEP by written notice and SEROSEP shall, at SEROSEP’s own cost, expense and option, repair or replace such defective Products and at SEROSEP’s cost and expense, ship such replacement Products to Customer/ Distributor at the location of such Products or such other location as reasonably specified by Customer/ Distributor, within 30 days after SEROSEP’s receipt of such written notice; provided that the foregoing shall not apply to Products that become defective because of misuse or mishandling by Customer/ Distributor or its Affiliates. The written notice of rejection shall include a copy of the test results relied upon by Customer/ Distributor in making its claim that the Products in question are defective or faulty Products or, in the event the Product was visibly damaged or defective, visual documentation of such damage or defect (e.g., photographs). If the Parties disagree as to the fault or defect either Party may deliver the Product to an independent Third-Party laboratory, reasonably acceptable to both Parties, for analytical testing to confirm the position in relation to the defect or fault. All costs and expenses associated with such Third-Party testing shall be paid by Customer/ Distributor; provided that if the tested Product is deemed by such Third Party to be defective or faulty, then SEROSEP shall promptly reimburse Customer/ Distributor for all such costs and expenses, including reimbursement of freight and disposition costs and expenses, in connection with such Third-Party testing.
- Equipment Support and Maintenance. During the Term of the Agreement, SEROSEP will provide Customer/ Distributor with technical support that SEROSEP customarily provides to its Customer/ Distributors. However, Customer/ Distributor shall be responsible for the cost of ongoing preventative maintenance and repairs for defects resulting from misuse, neglect, or accident, including without limitation: operation with incompatible solvents or samples in the system; operation outside of the environmental or use specifications or not in conformance with the instructions for the instrument system, software, or accessories; improper or inadequate maintenance by the Customer/ Distributor (including any End Users or other third parties); installation of software or interfacing, or use in combination with software or products not supplied or authorized by SEROSEP; modification or repair of the product not authorized by SEROSEP; relocation or movement of the instrument by Customer/ Distributor or by any third party not acting on behalf of SEROSEP; or intrusive activity, including without limitation computer viruses, hackers or other unauthorized interactions with instrument or software that detrimentally affects normal operations.Technical support is provided for all products purchased directly from SEROSEP. Technical Support can be contacted by calling + 353 87 341 0733 Monday through Friday (and, for emergencies only +44 012 938 89215, on other days) between 9.00 GMT and 4.30 GMT or e-mail at info@serosep.com or as otherwise designated by SEROSEP.
- Product Notices and Recall. Customer/ Distributor shall promptly, or within the applicable time under the law, by phone and in writing, advise SEROSEP should Customer/ Distributor receive any communication from any government agency or any complaint regarding the Products, or become aware of any defect or condition which may render any of the Products in violation of any statute or regulation, or which in any way alters the specifications of the Products (as set forth in the related package inserts), including without limitation, product recalls and investigations. If the incident has resulted, or is likely to result in a patient reaction, Customer/ Distributor shall also immediately notify SEROSEP by telephone. Customer/ Distributor acknowledges and agrees that SEROSEP has the authority, in its sole and absolute discretion, to recall any Product to comply with applicable laws, and Customer/ Distributor agrees to fully cooperate with SEROSEP in the case of any such recall.
- Damages to Equipment. In addition to its other obligations under the Agreement, the Customer/ Distributor shall be responsible for (and shall indemnify SEROSEP for all costs and expenses arising from) any damage caused to or suffered by any Equipment arising after SEROSEP (or its representative) has delivered such Equipment ex works at Annacotty, Ireland. The Customer/ Distributor shall maintain Equipment in good operating condition and repair and in proper working order.
- Grant of Limited Software License. To the extent applicable, SEROSEP grants Customer/ Distributor a limited, non-exclusive, non-transferable license to use software (“Software”) during the Term. Customer/ Distributor shall (i) use Software only as an integrated part of a Product and shall not separate integrated Software from any Product; (ii) not translate, disassemble, decompile, reverse engineer, alter or modify the Software; (iii) not make any copies of the Software; and (iv) use Software only for during the Term. The Software is owned or licensed by SEROSEP and is protected by copyright and other laws. Customer/ Distributor shall not sell, assign, sublicense, transfer or disclose or permit access to the Software to any third party, other than End Users purchasing Tests where applicable.
- Force Majeure. SEROSEP shall not be liable for nonperformance or delays caused by a shortage of raw materials, manufacturing problems, delivery or labor problems, priorities, acts of regulatory agencies or judicial bodies, discontinuation of a product line, acts of God or third parties, infringement claims, or other causes beyond its reasonable control. Customer/ Distributor agrees that in such events SEROSEP may allocate products among all purchasers as it deems reasonable, without liability.
- Purchase Orders. Customer/ Distributor must submit firm written purchase orders for products to SEROSEP. SEROSEP accepts standing orders, blanket orders and one-time orders. No verbal orders, changes or corrections will be accepted. Customer/ Distributor shall be responsible to SEROSEP for the accuracy of all orders. All purchase orders shall be placed by email from Customer/ Distributor to SEROSEP and the SEROSEP’s email address, currently info@serosep.com (or as otherwise designated by SEROSEP). Customer/ Distributor agrees to submit such purchase orders in an efficient and orderly manner (e.g., generally aggregating Customer/ Distributor’s internal orders for products throughout any monthly period and then submitting a purchase order to SEROSEP for such products on a once per month basis to the extent practicable). To the extent applicable, SEROSEP retains the right to require purchases to be made in case quantities. When placing an order, please provide account name, SEROSEP account reference number (if known), product name and number, quantity, price, shipping instructions, Customer/ Distributor contact name and telephone/fax numbers.
- Order Acceptance. No order shall be binding upon SEROSEP unless and until accepted by SEROSEP in writing.
- Order Cancellation. Customer/ Distributor shall not be entitled to revoke, reschedule or cancel any purchase order after acceptance by SEROSEP without SEROSEP’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed. SEROSEP may cancel or terminate all or part of any order immediately if Customer/ Distributor is materially delinquent on any of its obligations hereunder or under any other order or transaction with SEROSEP; Customer/ Distributor becomes insolvent; a receiver is appointed for or on behalf of Customer/ Distributor; Customer/ Distributor suspends or terminates business or makes an assignment for the benefit of creditors; or any event occurs, whether or not similar to the foregoing, which in SEROSEP’s good faith belief materially impairs the prospect of payment or performance by Customer/ Distributor hereunder. SEROSEP’s rights to cancel or terminate may be exercised by SEROSEP without liability.
- Limited Warranty SEROSEP warrants to the Customer/ Distributor that the Products or Equipment purchased hereunder will conform to any applicable manufacturer’s specifications for such Products or Equipment. If the SEROSEP breaches this limited warranty, the Customer/ Distributor’s remedy is limited to (at SEROSEP’s election): (1) refund of SEROSEP’s purchase price for such Production (without interest); (2) repair of such Products; OR (3) replacement of such Products; provided that such Products must be returned to SEROSEP, along with acceptable evidence of purchase, within 20 days from date of delivery; and with transportation charges prepaid. No warranty will apply if the Product has been subject to misuse; static discharge; neglect; accident; modification; or if it has been soldered. SAVE AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS (WHETHER STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, SEROSEP MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.
- Intellectual Property (a) All Intellectual Property in the Equipment and the Products is and shall remain the exclusive property of SEROSEP and/or its licensors. SEROSEP hereby grants to the Customer/ Distributor a non-exclusive license for the duration of the Contract to carry out all acts that would otherwise be prohibited by SEROSEP’s Intellectual Property rights protecting the Equipment and the Products, for its own internal and research purposes and not for human or animal therapeutic or diagnostic use. No rights in SEROSEP’s Intellectual Property other than those expressly referred to in this Condition are granted to the Customer/ Distributor or to be implied from these Conditions. (b) Any materials or information supplied by the Customer/ Distributor to SEROSEP for use in the manufacture of the Products including but not limited to data, specifications, drawings and equipment (“Customer/ Distributor Materials”) shall at all times be and remain the exclusive property of the Customer/ Distributor. The Customer/ Distributor Materials shall be maintained and kept in good condition by SEROSEP until returned to the Customer/ Distributor and shall not be disposed of other than in accordance with the Customer/ Distributor’s written instructions. The Customer/ Distributor Materials shall not be used otherwise than as authorized by the Customer/ Distributor in writing. (c) Nothing in this Condition shall be taken to supersede any agreed terms relating to Intellectual Property in the Equipment and the Products contained in any prior research services contract between the Parties pertaining to the Equipment and Products.
- Limitation of Liabilities THIS CONDITION SETS OUT THE ENTIRE LIABILITY OF THE PARTIES (INCLUDING ANY LIABILITY FOR THE ACTS AND/OR OMISSIONS OF THEIR RESPECTIVE REPRESENTATIVES. THE CUSTOMER/ DISTRIBUTOR SHALL NOT BE ENTITLED TO, AND SEROSEP SHALL NOT BE LIABLE FOR: LOSS OF PROFITS OR REVENUE; PROMOTIONAL OR MANUFACTURING EXPENSES; OVERHEADS; BUSINESS INTERRUPTION COST; LOSS OF DATA; REMOVAL OR REINSTALLATION COSTS; INJURY TO REPUTATION OR LOSS OF CUSTOMERS; PUNITIVE DAMAGES; IP INFRINGEMENT; LOSS OF CONTRACTS OR ORDERS OR LOSS OF OPPORTUNITY; OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE. SEROSEP shall not be liable for the failure of the Equipment or the Products to comply with any warranties pertaining to manufacture and quality in any of the following events (i) Where the defect arises because the Customer/ Distributor failed to follow the SEROSEP’s oral or written instructions as to the storage, use and servicing of the Equipment and Products or (if there are none) good trade practice regarding same; (ii) Where the defect arises as a result of SEROSEP following any drawing, design or specification supplied by the Customer/ Distributor; (iii) Where the Customer/ Distributor alters or repairs the Equipment or Products without the written consent of SEROSEP; (iv) Where the defect arises as a result of fair wear and tear; wilful damage; negligence; or abnormal storage or working conditions on the part of the Customer/ Distributor; (v) In the case of the Products, where the Products differ from the Product Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements. THE CUSTOMER/ DISTRIBUTOR’S RECOVERY FROM SEROSEP FOR ANY CLAIM SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE AFFECTED PRODUCTS, NOT EXCEEDING THE AMOUNT PAID BY THE CUSTOMER/ DISTRIBUTOR TO SEROSEP IN RESPECT OF THE CONTRACT IN THE TWELVE (12) MONTHS PRIOR TO THE DATE UPON WHICH THE LIABILITY AROSE, IRRESPECTIVE OF THE NATURE OF THE CLAIM WHETHER IN CONTRACT, TORT, BREACH OF STATUTORY DUTY, WARRANTY, OR OTHERWISE. THE CUSTOMER/ DISTRIBUTOR WILL INDEMNIFY, DEFEND AND HOLD SEROSEP HARMLESS FROM ANY CLAIMS BASED ON (a) SEROSEP’S COMPLIANCE WITH THE CUSTOMER/ DISTRIBUTOR’S’S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS; (b) MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER THAN SEROSEP, or (c) USE IN COMBINATION WITH OTHER PRODUCTS.
- Confidentiality If required by SEROSEP at any stage during the existence of the Contract, the Customer. Distributor shall enter into a confidentiality contract with SEROSEP, on terms satisfactory to SEROSEP, in respect of SEROSEP operations, processes, plans, technical or commercial know-how, designs, trade secrets, software, market opportunities and end users.
- Variations and Waiver. Any variation of these Conditions shall be in writing and signed by or on behalf of the Parties. Any waiver of any right under these Conditions is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given. Any waiver by either Party of any breach of, or any default under, any provision of these Conditions by the other Party will not be deemed as a waiver of any subsequent breach or default and will in no way affect the other terms of these Conditions. Failure to exercise or delay by either Party in exercising any right or remedy provided under these Conditions or by law shall not constitute a waiver of such right or remedy, nor shall it prevent or restrict any future exercise or enforcement of such right or remedy. No single or partial exercise of any right or remedy under these Conditions shall prevent or restrict the further exercise of any other right or remedy.
- Severance. If any provision of these Conditions (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal; if the said provision would be valid, enforceable or legal if some part of it were deleted, the said provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
- Entire Contract. The Contract shall constitute the entire contract between the Parties in respect of the subject matter of thereof. Each Party acknowledges that, in entering into the Contract, it has not relied on any statement, representation, assurance or warranty (whether made negligently or innocently) other than those expressly set out in the Contract. Each Party agrees that all liability for any remedies in respect of any representations are excluded except as expressly provided in the Contract.
- Dispute Resolution, Governing Law, and Jurisdiction. In the event of a dispute in respect of these Conditions, the Parties shall use their best endeavors to appoint an expert within thirty (30) days of the dispute arising. The Parties shall endeavor to select an expert who is technically knowledgeable within the industry (the “Expert”). In the event that the Parties cannot agree on the appointment of an Expert, either Party may request the President for the time being of the Law Society of Ireland to appoint an Expert within thirty (30) days of being requested to do so. The President of the Law Society of Ireland shall endeavor to select an Expert who is technically knowledgeable in the industry (and who, directly and through his affiliates, has no business relationship with either Party). This Contract shall be governed by and construed in accordance with the laws of Ireland, and shall, subject to the provisions of this Condition 22, be subject to the exclusive jurisdiction of the Irish courts.
- Assignment Customer/ Distributor may not assign this Contract without the prior written consent of SEROSEP. SEROSEP or its affiliates may perform the obligations under this Contract. This Contract is binding on successor and assigns.
