Terms and Conditions of Sale - MorphoSys US Inc

Terms and Conditions – MorphoSys US Inc

TERMS AND CONDITIONS OF SALE

NOTICE: THE PURCHASE OF PRODUCTS (“PRODUCTS”) AND/OR SERVICES BY BUYER (“CUSTOMER”) FROM MORPHOSYS US INC. d/b/a AbD SEROTEC (“AbD SEROTEC”) WILL BE GOVERNED SOLELY BY THESE TERMS AND CONDITIONS OF SALE, THE TERMS IN AbD SEROTEC’S APPLICABLE ORDER CONFIRMATION, AND ANY AbD SEROTEC INVOICE RELATING TO THE SALE OF PRODUCTS AND/OR SERVICES TO CUSTOMER. NO TERM OF ANY PURCHASE ORDER OR OTHER DOCUMENT CUSTOMER ISSUES (INCLUDING ANY TERMS AND CONDITIONS OF PURCHASE), OTHER THAN CUSTOMER’S ACCEPTANCE OF THESE TERMS, WILL BECOME A PART OF THE AGREEMENT BETWEEN PARTIES OR BIND AbD SEROTEC. AbD SEROTEC’S SALE OF PRODUCTS AND/OR SERVICES IS EXPRESSLY CONDITIONED ON CUSTOMER’S ACCEPTANCE OF THESE TERMS, AND AbD SEROTEC OBJECTS TO ALL DIFFERENT AND ADDITIONAL TERMS IN CUSTOMER’S PURCHASE ORDER AND OTHER DOCUMENTS. TO THE EXTENT THERE IS ANY CONTRADICTION BETWEEN THE TERMS IN AN ORDER CONFIRMATION AND THESE TERMS AND CONDITIONS OF SALE, THE TERMS IN THE ORDER CONFIRMATION SHALL CONTROL.

1. Acceptance

All orders for Products and/or services are subject to final acceptance by AbD Serotec’s written confirmation and no orders are binding upon AbD Serotec until so accepted.

2. Deliveries

All deliveries shall be via common carrier or some other reasonable means chosen by AbD Serotec. Title to and risk of loss of the Products shall transfer to Customer upon AbD Serotec’s placement of the Products with the carrier. Delivery is conditional on the timely receipt by AbD Serotec of documents necessary for the completion of the order, any down payment, and Customer maintaining credit satisfactory to AbD Serotec. Partial deliveries are permissible. AbD Serotec will not be liable for any delay in performance, or in the delivery or shipment, of Products and/or services, or for any damages suffered by Customer by reason of such delay. AbD Serotec may suspend or delay performance or delivery at any time pending receipt of assurances, including full or partial prepayment or payment of any outstanding amounts owed, adequate to AbD Serotec in its discretion, of Customer’s ability to pay. Failure to provide such assurances shall entitle AbD Serotec to cancel the applicable order confirmation without further liability or obligation to AbD Serotec. In addition to any other rights or remedies available to AbD Serotec relating to the sale of Products, AbD Serotec reserves the right to charge Customer a monthly warehousing fee equal to 10% of the total invoiced amount of any order of Products not taken or accepted by Customer in conformity with AbD Serotec’s order confirmation.

3. Prices

Prices quoted are subject to change by AbD Serotec at any time prior to AbD Serotec’s acceptance of an order upon notice to Customer. Prices quoted do not include sales, use, excise, privilege or any similar tax levied by any government, or freight, transportation, packing or storage charges, and Customer shall pay any such applicable taxes and charges. Unless AbD Serotec’s order confirmation provides otherwise, the purchase price of the Products does not include any services. If AbD Serotec agrees to provide any services, the services and additional charges Customer shall pay will be specified in AbD Serotec’s order confirmation. All invoices are payable in U.S. Dollars.

4. Terms of Payment

The purchase price of the Products and any applicable taxes and charges shall be set forth on AbD Serotec’s invoice to Customer which shall be mailed one (1) day after the Products are shipped to Customer. Customer agrees to pay the amount of such invoice in full within thirty (30) days of the date of invoice. If AbD Serotec agrees to provide services in an order confirmation, 75% of the charges for the services will be due and payable within five (5) business days of the order confirmation and the remaining 25% will be due and payable within thirty (30) days of the date of invoice relating to such charges. Customer hereby makes a continuing representation and warranty at the time of each order and delivery hereunder that it is solvent, that it pays its obligations as they come due, and that it is able to pay the purchase price for the Products and/or services, as the case may be. Extension of credit, if any, may be changed or withdrawn by AbD Serotec at any time. Invoices not paid by their due date may be subject to interest charges. In the event AbD Serotec elects to charge interest (in its sole discretion), such interest shall accrue and be added to the unpaid balance at the rate of four percent (4%) per month on any overdue unpaid balance, or the maximum rate permitted by law, whichever is less. Customer shall reimburse AbD Serotec for the costs of collection, including, without limitation, reasonable attorneys’ fees, of any overdue amount owed by Customer to AbD Serotec, and such collection costs shall also be subject to the interest charges. Customer may not hold back or set-off any amounts owed to AbD Serotec for any reason.

5. Returned Products and Claims

Within fourteen (14) days after Customer’s receipt of Products sold, Customer must inspect the Products and give detailed written notice to AbD Serotec of any claim by Customer based upon the condition, quantity, or identity of the Products received or of any visible nonconformity with AbD Serotec’s applicable specifications. If requested by AbD Serotec, Customer shall make available for inspection by AbD Serotec or its agent any Products as to which a claim has been asserted by Customer. Customer’s failure to make such claim shall constitute irrevocable acceptance of the Products delivered. Products sold that are determined to be damaged, defective or non-conforming shall not be returned without AbD Serotec’s prior written consent and transportation charges for return shall not be paid by AbD Serotec unless authorized in advance.

6. Cancellation/Changes

Customer may not cancel or change an order once placed with AbD Serotec except with the prior written consent of AbD Serotec and upon terms that will indemnify AbD Serotec against any loss resulting from such change or cancellation. All orders and Products are subject to changes as may be required to comply with applicable laws.

7. Limited Warranties; Limited Remedies

AbD Serotec warrants that at the time of delivery, Products sold to Customer will conform to AbD Serotec’s applicable specifications (which are published on the AbD Serotec website at www.abdserotec.com). This limited warranty shall expire upon the earlier of: (i) Customer’s incorporation of the Products into other products, or (ii) the expiration date of the Products set forth in the Certificate of Analysis provided by AbD Serotec with the Products at the time of delivery (or, if there is no such expiration date, one (1) year from the date of delivery of the Products). As Customer’s sole and exclusive remedy, AbD Serotec will, in its sole discretion and within a reasonable time, either replace or refund the purchase price for any Product found by AbD Serotec to have been nonconforming at the time of delivery, (i) if Customer promptly (however not later than fourteen (14) days after Customer’s discovery of the nonconformity) sets forth in writing to AbD Serotec information describing the nonconforming Product, including the type of Product, invoice number, shipment date, and a full description of any nonconformity and (ii) if AbD Serotec requests, such nonconforming Product is returned and received by AbD Serotec within the warranty period described herein.

This limited warranty for the Products does not cover normal maintenance or items consumed during normal operation; misuse, abuse, unauthorized modification or alteration, lack of proper storage (including, without limitation, failure to comply with AbD Serotec’s guidelines, warnings and instructions for storage and use), or damage caused by natural causes such as fire, storm, or flood; or, any defect or damage caused by Customer’s negligence or intentional acts. Customer acknowledges that Products such as antibodies have a limited usable life and require storage and use in controlled conditions. This warranty shall not be deemed to have failed of its essential purpose so long as AbD Serotec is willing and able to replace or refund the purchase price on any defective Products in the manner specified.

As to any services AbD Serotec provides, AbD Serotec warrants to Customer that they will be performed using AbD Serotec’s best efforts.

8. Specially Manufactured Products

If AbD Serotec manufactures the Products in whole or in part pursuant to Customer’s specifications (“SM Products”), the manufacture and sale of SM Products shall be governed by these Terms and Conditions with the exception of the first two sentences of Section 7 above, which will not apply to SM Products. (Any reference to “Product” shall include “SM Product” as applicable.) In addition, the following provisions shall apply to the manufacture and sale of SM Products:

a. Customer will be deemed to have provided and to be responsible for all designs, plans and specifications with respect to SM Products (collectively, “Designs”). If AbD Serotec makes suggestions with respect to the Designs, at Customer’s request or otherwise, Customer will be responsible for analyzing the same and determining whether to incorporate them into the Designs.

b. If Customer desires to change any aspect of the Designs, Customer will submit a written change order to AbD Serotec specifying in detail the changes it wishes to make, and AbD Serotec may accept or reject the requested changes in its sole discretion. If AbD Serotec agrees in writing to make the changes Customer requests, Customer will pay all costs of making the changes, including the costs of obsolete materials or of replacing obsolete materials with newly specified materials.

c. Subject to Sections 7 (as limited above), 8.a and 8.b above, AbD Serotec warrants to Customer that at the time of delivery, the SM Products will be manufactured in accordance with the Designs specified in the applicable AbD Serotec order confirmation. The foregoing limited warranty shall expire no later than one (1) year after delivery of the SM Products unless otherwise indicated in AbD Serotec’s order confirmation or invoice.

d. Customer represents and warrants to AbD Serotec, with respect to all current and future Designs, as follows: (i) Customer has the right to design, manufacture, and use SM Products made pursuant to those Designs, (ii) AbD Serotec’s manufacturing the SM Products for Customer pursuant to those Designs will not infringe on, violate or misappropriate any patent, trade secret, copyright, trademark, or other intellectual property or proprietary right; (iii) there are no defects or dangers, latent or otherwise, with respect to Customer’s Designs; and (iv) the SM Products, when AbD Serotec manufactures them pursuant to those Designs, will comply with all applicable laws, rules and regulations.

e. Customer will indemnify, defend and hold harmless AbD Serotec and its affiliates, directors, officers, employees and agents from and against any and all claims, damages, losses, fines, costs, and attorney’s fees and expenses arising out of or relating to (i) the Designs, (ii) any alleged negligence with respect to the SM Products or misuse of the SM Products after the sale and delivery of the Products to Customer, (iii) any claim that the SM Products or the Designs infringe on, violate or misappropriate any patent, trade secret, copyright, trademark or other intellectual property or proprietary right, or (iv) Customer’s breach of its express warranties in Section 8.d. above. If AbD Serotec requests, Customer shall defend AbD Serotec, at Customer’s expense, in any indemnifiable claim brought against AbD Serotec.

9. Customer Materials

If Customer provides AbD Serotec with any raw or other materials or goods owned by Customer (“Customer Materials”) in connection with AbD Serotec’s provision of services to Customer, Customer represents and warrants (i) that any such Customer Materials delivered to AbD Serotec by or on behalf of Customer shall comply with all applicable laws and regulations, (ii) Customer has good and valid title to the Customer Materials, and (iii) AbD Serotec’s provision of services relating to the Customer Materials will not violate the rights of any third party. Customer will indemnify, defend and hold harmless AbD Serotec and its affiliates, directors, officers, employees and agents from and against any and all claims, damages, losses, fines, costs and attorney’s fees and expenses arising out of or relating to Customer’s breach of its express warranties in this Section 9. If AbD Serotec requests, Customer shall defend AbD Serotec, at Customer’s expense, in any indemnifiable claim brought against AbD Serotec.

10. Disclaimers

Limitation of Liability; Exclusion of DamagesSamples, descriptions, representations, and other information concerning Products set forth on the AbD Serotec website and/or contained in AbD Serotec catalogs, advertisements, or other promotional materials or statements or representations made by AbD Serotec’s employees or sales representatives are for general informational purposes only and are not binding upon AbD Serotec. No employee or sales representative of AbD Serotec shall have any authority whatsoever to establish, expand or otherwise modify AbD Serotec’s warranty. Except as herein provided, AbD Serotec shall not be liable to Customer in any manner with respect to the Products and/or services. NO OTHER EXPRESS AND NO IMPLIED WARRANTIES OF ANY TYPE, WHETHER OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT FOR TYPE OR USE (WHETHER OR NOT THE PRODUCTS ARE INCORPORATED INTO ANOTHER PRODUCT OR SERVICE), SUITABILITY OR OTHERWISE, OTHER THAN THOSE EXPRESSLY SET FORTH IN SECTION 7 AND SECTION 8.c. ABOVE, AS APPLICABLE, (WHICH ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES) SHALL APPLY TO THE PRODUCTS AND/OR SERVICES. The limited warranties set forth in Section 7 and Section 8.c. are non-transferable. They extend to Customer only, and not to any resale customer of Customer or end-consumer. In the event of resales or re-manufacturing by Customer, Customer is solely responsible for any and all warranty and other claims resulting from any representations or warranties made by Customer to its customers and any end-consumers. Customer shall not refer to AbD Serotec in any manner in connection with its resale or re-manufacturing of the Products.

The Products sold are for research use only. Customer is solely responsible for the validation of any of the Products incorporated into in vitro diagnostic (IVD) products and for satisfying the requirements of any and all applicable laws, rules or regulations in respect of IVD products.

IN NO EVENT SHALL AbD SEROTEC BE LIABLE (A) IN EXCESS OF THE PURCHASE PRICE OF THE NONCONFORMING PRODUCT AND/OR SERVICES, OR (B) FOR INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS REVENUES, WHETHER ARISING FROM THE SALE OF PRODUCTS AND/OR SERVICES, ANY DEFECT IN THE PRODUCTS AND/OR DEFICIENCY IN THE SERVICES, ANY USE OF OR INABILITY TO USE THE PRODUCTS, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES.

11. Selection; Application; Infringement

Customer is solely responsible for proper selection, application, processing and use of Products, as well as (if applicable) the incorporation of Products into other products. Customer shall indemnify and hold AbD Serotec harmless from and against any and all damages, liabilities, claims, or expenses (including reasonable attorneys’ fees) arising out of or relating to (i) improper selection, application, processing, use or incorporation of the Products (including, without limitation, infringement of any patent, trademark, copyright or other third party intellectual property interest); or (ii) infringement of any patent, trademark, copyright or other third party interest arising out of AbD Serotec’s compliance with any of Customer’s formulations, designs, specifications, or instructions. If AbD Serotec requests, Customer shall defend AbD Serotec, at Customer’s expense, in any such suit brought against AbD Serotec.

12. Security Agreement

Customer hereby grants to AbD Serotec a continuing purchase money security interest in all Products sold and/or delivered to it and to the proceeds thereof (collectively, the “Collateral”) to secure the full payment of the purchase price of the Products and all other obligations of Customer to AbD Serotec under this order, whether now owing or hereafter arising. This purchase money security interest covers future advances and shall attach to Collateral which constitutes after-acquired Collateral. Each item of Collateral shall remain subject to AbD Serotec’s purchase money security interest until the purchase price of such item is paid and satisfied in full, including any delinquency charges. After an invoice is paid and satisfied in full, the Collateral evidenced by that invoice shall be automatically released from AbD Serotec’s purchase money security interest. Customer hereby authorizes AbD Serotec at any time and from time to time to file financing statements, amendments and continuations describing the Collateral and proceeds in any filing office in any Uniform Commercial Code jurisdiction and to do all acts reasonably necessary for the establishment, perfection, preservation, and enforcement of its security interest. Customer shall maintain adequate insurance against casualty, loss, fire or theft of the Products for so long as the security interest is in effect.

13. Force Majeure

AbD Serotec shall not be liable for delays or deemed in default for failure to deliver or otherwise perform due, directly or indirectly, to causes beyond AbD Serotec’s reasonable control, including but not limited to failure of third parties to provide adequate and conforming raw materials, the failure to perform by other suppliers to AbD Serotec, changes in the licensing of intellectual property rights, damage (including death) to cell lines or clones, acts of God or nature, acts of any governmental authority, changes in law, wars, strikes or other labor disputes, fires, and natural calamities.

14. Limitations

Any action by Customer under or relating to this agreement or the Products and/or services sold must be commenced within one (1) year after such cause of action has accrued.

15. Choice of Law

These Terms and Conditions, the purchase and sale of Products and any dispute or controversy relating hereto or to any order shall be governed and construed according to the laws of the State of North Carolina, excluding its conflict of law principles In the event Customer and AbD Serotec are located in countries which are parties to the 1980 United Nations Convention on the International Sale of Goods (“UNCISG”), the parties hereby agree that the purchase and sale of Products and any dispute or controversy relating thereto shall not be governed by the provisions of the UNCISG.

16. Choice of Forum, Venue, and Consent to Jurisdiction

Any suit, action or proceeding with respect to this order or the sale of Products and/or services hereunder, or any judgment entered by any court in respect hereof or thereof, may be so brought or so entered in the state courts of North Carolina or in the United States District Court for the Eastern District of North Carolina. Customer and AbD Serotec hereby submit to the jurisdiction of such courts for the purpose of any such suit, action or proceeding, and Customer and AbD Serotec hereby irrevocably waive any objections to venue for any such suit, action or proceeding being brought in such courts.

17. Assignment

Customer may not assign its rights, duties or obligations hereunder (whether by operation of law, change of control, or otherwise) without the prior written consent of AbD Serotec and any purported assignment without such consent shall be of no effect.