TERMS OF SALE
1. APPLICATION AND VALIDITY
1.1 These terms (“Terms”), together with the Quotation to which they are attached (“Quotation”), constitute a contract between River Stone Biotech ApS, CVR No. 39126729, Fruebjergvej 3, DK-2100 Copenhagen Ø, Denmark (hereinafter referred to as “River Stone”) and the customer (hereinafter referred to as “Customer”) specified in the Quotation. River Stone and Customer are referred to individually as “Party” or collectively as “Parties”.
1.2 Any requirements of Customer stated in offers, orders, purchase conditions etc. shall not constitute an exemption from these Terms which, together with the Quotation, shall be deemed as the entire agreement between the Parties on the subject matter contained herein unless otherwise agreed in writing between the Parties. In the event of conflict between these Terms and the Quotation the Quotation shall dominate.
2. REPRESENTATIONS BY CUSTOMER
2.1 The Customer represents that its representatives have the authority to agree these Terms and the Quotation on behalf of the Customer.
3.1 The prices are exclusive of any applicable value added tax (VAT), similar sales taxes, import taxes and any other taxes. They are inclusive of any shipment costs.
3.2 The Quotation is valid for six weeks from the date of Quotation and prices of confirmed orders are not subject to change. Otherwise River Stone reserves the right to adjust its prices without notice and such new prices shall become effective immediately.
4. PAYMENT TERMS
4.1 Payments are to be made in US Dollars.
4.2 Unless otherwise agreed in writing, River Stone shall issue an invoice to Customer stating when the invoice amount is due, no later than upon delivery of the products.
4.3 If payment is not received by River Stone when due, River Stone reserves the right to hold back further deliveries until payment has taken place. River Stone shall then be entitled to change, at its discretion, the payment terms.
4.4 Unless otherwise expressly specified, payment shall be made by bank transfer to River Stone’ account from the Customer's account. In case of overdue payment, Customer shall be obliged to pay an interest of 2% per month or part month on the due amount as stated on the invoice, from the due date and until River Stone has received payment.
4.5 Customer shall pay all of River Stone’ costs and expenses incurred in collecting any amounts not paid when due.
5.1 Delivery dates will be established by River Stone upon receipt of orders from Customer.
5.2 Unless otherwise agreed in writing, delivery of the products is made DAP to Customers premises as defined in the Quotation (Incoterms 2010). In the absence of specific instructions, River Stone will select the carrier and ship to the single location designated by Customer. River Stone may deliver the products in one or more shipments and invoice each shipment separately.
5.3 Delivery of the products is conditioned upon Customer maintaining credit satisfactory to River Stone and River Stone may, without notice or liability to Customer, suspend or delay performance or delivery at any time pending receipt of assurances, including full or partial payment of the amounts owed or prepayment on future orders, adequate to River Stone in its discretion.
5.4 Risk of loss with respect to the products shall pass to Customer in accordance with Incoterms 2010. Title will transfer to Customer only upon full payment of the purchase price.
6. EXAMINATION AND CONFORMANCE
6.1 Customer shall immediately after the receipt of a delivery examine the products in order to identify any visual defects or whether any portion fails to conform to the applicable purchase order or the product specifications. In the event of defects or non-conformity to the applicable purchase order and/or product specifications, Customer may reject the non-conforming portion of the shipment by written notice to River Stone. Such notice shall specify the manner in which the shipment fails to conform to the purchase order and/or product specifications.
6.2 Non-conformance to the product specifications shall be notified promptly upon discovery by Customer. Visual defects and non-conformance to the applicable purchase order shall be notified to River Stone no later than 5 (five) days from Customer’s receipt of the shipment. In the absence of any such notice, Customer shall be deemed to have accepted the shipment. Customer shall give River Stone a reasonable opportunity to inspect the products and/or examine samples of the non-conforming products.
6.3 If any of the products are found to be defective or not to be in conformance with the purchase order and/or the product specifications, River Stone will use its commercially reasonable efforts to replace such products at no additional cost to Customer. This shall be Customer’s sole remedy for any products it rejects hereunder, and replacement cannot be considered as delay of the non-conforming order.
7.1 The Product is supplied for research use only, and Customer acknowledges that Customer holds the full responsibility for the specific use of the products, including, but not limited to requirements to product handling, working environment, product documentation as well as public authority requirements (including but not limited to safety and working environment requirements), relevant laws and regulations etc. Customer acknowledges that the use of enzymes and/or microorganism products in certain applications requires specific approval in some countries and that Customer is solely responsible for obtaining such approval. The product is to be used with caution and prudence, since not all of the characteristics of the product are necessarily known. Customer furthermore acknowledges that Customer holds the full responsibility that its use of the products does not infringe patents or other third party rights and River Stone disclaims any liability in connection herewith.
8. LIMITED WARRANTY
8.1 River Stone warrants and represents that (i) it has title to the products; and (ii) the products are free of any third party liens or encumbrances.
8.2 THE FOREGOING WARRANTIES ARE RIVERSTONE’S SOLE WARRANTIES, AND ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, NON-INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS RESULTING FROM ANY USE OF THE PRODUCTS AND ANY WARRANTY ARISING BY LAW, OUT OF ANY COURSE OF DEALING OR PERFORMANCE, CUSTOM OR INDUSTRY STANDARD.
8.3 RIVER STONE DOES NOT AUTHORIZE CUSTOMER OR ANY OTHER PERSON TO MAKE ANY WARRANTIES REGARDING ITS PRODUCTS ON BEHALF OF RIVER STONE AND NO WARRANTIES OR STATEMENTS OF ANY KIND BY CUSTOMER OR ANY OTHER PERSON SHALL BIND RIVER STONE.
9. LIMITATION OF LIABILITY AND INDEMNIFICATION
9.1 RIVER STONE SHALL INDEMNIFY AND HOLD CUSTOMER HARMLESS FROM BREACH OF THE LIMITED WARRANTIES IN SECTION 8 AND PRODUCT LIABILITY CLAIMS UNDER APPLICABLE MANDATORY STATUTORY PROVISIONS WHERE IT IS ESTABLISHED THAT SUCH LIABILITY ARISES DIRECTLY FROM DEFECTS IN PRODUCTS WHEN USED IN ACCORDANCE WITH ITS INTENDED USE AND RELEVANT SAFETY DOCUMENTATION.
9.2 ANY ACTION BY CUSTOMER UNDER OR RELATING TO THESE TERMS OR ANY PRODUCTS SOLD BY RIVER STONE MUST BE COMMENCED WITHIN TWELVE (12) MONTHS AFTER SUCH CAUSE OF ACTION HAS ACCRUED. RIVER STONES LIABILITY FOR FAILURE TO FULFIL ITS OBLIGATIONS UNDER THE WARRANTY STATED HEREIN OR ANY OTHER LIABILITY UNDER OR IN CONNECTION WITH THIS CONTRACT OR ANY PRODUCTS SUPPLIED HEREUNDER SHALL BE LIMITED TO THE AMOUNT OF THE PURCHASE PRICE OF THE PRODUCTS AT ISSUE FOR THE PRECEEDING TWELVE (12) MONTHS.
9.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY, RIVER STONE SHALL NOT IN ANY EVENT BE LIABLE UNDER ANY CIRCUMSTANCES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, FOR ANY LOSS OF PROFIT, ANY LOSSES DUE TO DELAY IN DELIVERY, ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES ARISING FROM THIS CONTRACT, ANY PRODUCTS OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, FAILURE TO REALIZE EXPECTED SAVINGS, ANY CLAIM AGAINST CUSTOMER BY A THIRD PARTY, OR ANY OTHER COMMERCIAL OR ECONOMIC LOSSES OF ANY KIND, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
9.4 Customer shall hold harmless and indemnify River Stone from and against any liability, obligation, loss, damage, fees, fine, penalty, action, claim, judgment, settlement, proceeding, cost, expense and disbursement of any kind or nature whatsoever, including all reasonable attorney’s fees, costs and expenses of defence, appeal, and settlement of any suits, actions or proceedings instituted against River Stone and all costs of investigation in connection therewith that may be imposed on, incurred by, or asserted against River Stone by a third party arising out of any order of products hereunder, except only if specifically covered by the above listed limited warranties and indemnification.
10. INTELLECTUAL PROPERTY
10.1 The sale of products hereunder does not convey to Customer or any other person or entity, any right, title, license or other interest of any kind with respect to any intellectual property rights relating to the products, hereunder without limitation, patents, patent applications or trademarks, except that Customer shall have an implied non-exclusive, non-sublicensable license to River Stone owned and controlled intellectual property rights to use product bought from River Stone for the purpose stated in the product documentation unless River Stone notifies Customer otherwise.
10.2. Ownership of any intellectual property rights which may be developed or created by Customer through the use of the Products shall vest in the Customer.
11. FORCE MAJEURE
11.1 River Stone shall not be liable to Customer for any damages or failure to make delivery in respect of any orders accepted by River Stone for the production or sale of any products where such failure is due to fire, strike, labour trouble, power failure, inability to obtain raw materials, war, act of God, regulations of any governmental authority, incorrect, delayed or incomplete information provided by Customer or any cause or condition beyond the reasonable control of River Stone.
11.2 Further, the occurrence of any such circumstance shall operate to extend River Stones time of performance hereunder for a period not less than the period of delay caused by such circumstances. In the event of any such circumstance, River Stone may allocate its production and deliveries among its customers as it may decide in its sole discretion.
12. GOVERNING LAW - JURISDICTION
12.1 These Terms shall be construed and interpreted pursuant to the substantive laws of the country of the defendant without regard to any conflicts of law rules of any jurisdiction. The United Nations Convention on Contracts of the International Sale of Goods (CISG) shall not apply. The English wording of these Terms shall prevail.
13 DISPUTE RESOLUTION
13.1 Any dispute relating to the sale of products hereunder or the application or interpretation of these Terms shall be referred to ICC arbitration in the country of the defendant. The International Court of Arbitration shall exclusively determine whether Customer or River Stone is defendant for the purpose of this clause in the event of multiple claims and multiple arbitrations and shall exclusively decide on and ensure consolidation of related multiple claims and related multiple arbitrations into one arbitration based on the principle that related claims and arbitrations between River Stone and Customer hereunder shall be consolidated into the ICC arbitration that was formally commenced first, unless otherwise specifically agreed by River Stone and Customer.
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