Terms and Conditions of Sale

End Users and Non-appointed Distributors

I. APPLICATION

1. Unless otherwise agreed by an end user or non-appointed distributor and Biogelx in writing, these Terms and Conditions shall apply to all sales and deliveries to end users and non-appointed distributors who have not signed an individual purchase agreement or authorized distributor agreement with Biogelx (the end user or non-appointed distributor with whom Biogelx is contracting is hereinafter referred to as the “Customer”). 2. These Terms and Conditions shall apply to all business transactions between Biogelx and the Customer regardless of whether they are referenced in future contracts. Contrary, additional or differing terms and conditions of the Customer shall not apply unless expressly agreed to in writing by Biogelx. These Terms and Conditions apply even in the event that Biogelx makes a delivery to the Customer without reservations while being aware of the Customer’s conflicting or deviating terms and conditions. 3. Amendments and additions to these Terms and Conditions, including to this provision, shall be made in writing. 4. Rights accorded to Biogelx according to statutory provisions beyond the scope of these Terms and Conditions shall remain unaffected. 5. Biogelx is contracting on the basis that the products are supplied for use in the course of business and not for private use or consumption in any manner.

II. PRODUCT OFFERING AND MODIFICATION

Biogelx has the right, from time to time, to add, modify or discontinue any product offering.

III. CONTRACTUAL RELATIONSHIP

The Customer shall purchase products from Biogelx in its own name and for its own account. If the Customer resells the products, the Customer shall sell the products in its own name and for its own account.

IV. BASIC CUSTOMER RESPONSIBILITIES

The Customer agrees to: 1. provide correct information on all purchase orders of products, including complete product numbers, options, quantities and any special instructions. The Customer assumes sole and absolute liability for any failure, by the Customer, to provide complete and accurate information when ordering products; 2. indemnify and hold harmless Biogelx and its legal successors and assigns from and against all suits, losses, claims, liabilities, costs and expenses (including attorney fees) that Biogelx may sustain or incur as a direct result of any claim against Biogelx based upon breach of contract, breach of warranty, strict liability in tort or any other theory of law brought by the Customer’s officers, agents, employees, legal successors and assigns, by the Customer’s customers, by end users, by auxiliary personnel (such as freight handlers, etc.) or by other third parties, if and to the extent directly arising out of the Customer’s breach of its obligations under these Terms and Conditions; 3. promptly disclose to Biogelx and, upon request by Biogelx, grant Biogelx a non-exclusive, royalty-free license to make, use and sell worldwide any improvement of Biogelx technology (including without limitation any know-how, technical information, computer software and hardware and the like) developed by the Customer; provided that nothing in this provision shall be construed as granting the Customer any right, title or interest (whether direct or indirect) in or any right or license to amend or develop any Biogelx technology; and 4. pay any and all taxes, duties, imposts, excises, fees, charges, costs and expenses of any type or character whatsoever, accruing, incurred, imposed or assessed in connection with or relating, in any manner whatsoever, to the Customer’s purchase, importation, transportation, storage, use, distribution or resale, of Biogelx products.

V. OFFER AND ACCEPTANCE

1. All offers are subject to acknowledgement and non-binding. No contract is created unless and until acknowledged by Biogelx, either by written acknowledgment or by dispatch of the products and any provision otherwise, whether contained in any written communication by the Customer or otherwise, is expressly excluded. 2. Analytical reports and other descriptions of products in certificates of analysis, catalogues, technical data sheets or other provided product documentation are only approximate unless explicitly referred to as binding. They shall not constitute any agreement or warranty of any characteristics of the products unless a director of Biogelx has expressly qualified a description of a product as warranty of agreement of certain characteristics and so notified the Customer in writing. 3. Biogelx reserves all rights of ownership in all intellectual property rights in all offering materials. Such materials shall not be disclosed to any third parties unless otherwise provided in writing between Biogelx and the Customer. 4. Purchase orders are non-binding on Biogelx. The Customer is bound to its purchase order for two (2) weeks. The silence of Biogelx with regard to offers, purchase orders, requests or other declarations of the Customer shall not imply consent or agreement unless expressly agreed otherwise in writing. In individual cases, the purchase order will be confirmed by Biogelx by written acknowledgement. Any acknowledgement of purchase order created electronically which does not include a signature or name shall be deemed to constitute written form. Where the acknowledgement of purchase order contains obvious mistakes or clerical or calculation errors, it shall not be binding on Biogelx. 5. If the contract is unilaterally annulled by the Customer or a purchase order or partial purchase order unilaterally cancelled by the Customer, the Customer shall reimburse Biogelx all costs resulting from such annulment or cancellation of contract or purchase order, particularly cancellation and rescission costs charged to Biogelx by its suppliers, costs for the purchase of goods which may not be returned and all other costs and expenses which Biogelx incurred in connection with the execution and the termination of the contract, inter alia, legal fees and costs of transport.

VI. SCOPE OF DELIVERY / TERMS OF DELIVERY

1. For the scope of delivery the written acknowledgement of Biogelx (or purchase order of the Customer if no acknowledgement is provided) is authoritative. Changes to the scope of delivery shall not be effective unless confirmed in writing by Biogelx. Biogelx reserves the right to make alterations to the purity or specifications of the products to the extent such alterations are not significant. 2. Biogelx is entitled to make partial deliveries in order to perform its contractual obligations unless partial delivery is not of any interest to the Customer and the Customer has referred to this fact in its purchase order. 3. Unless otherwise separately agreed by the parties, Biogelx has the right, in its discretion, to determine the method of shipment, i.e., delivery can be made by air freight, train, ship or road transport. 4. All deliveries are made Ex Works (Incoterms 2010) site specified by Biogelx. Biogelx reserves the right to charge the Customer for carriage and freight. 5. Return of the products and a corresponding credit shall only be possible after prior written consent of Biogelx and the Customer must comply with all instructions of Biogelx with regard to the return of goods. This applies, in particular, to statutory provisions, as applicable, with regard to the delivery and packaging of hazardous goods. 6. All delivery obligations of Biogelx are subject to the reservation “while stocks last.” Biogelx is therefore entitled to terminate the contract when stocks available to Biogelx are exhausted. If stocks are only partially exhausted and the entire request of goods as described in the purchase order of the Customer cannot be satisfied, Biogelx is entitled to distribute the available stocks at its reasonable discretion to one or all customers. If Biogelx can only satisfy part of the Customer’s request for goods as described in the purchase order, the Customer is entitled to cancel the purchase order.

VII. DELIVERY TIME

1. Agreements on delivery periods and dates shall be specified in the purchase order acknowledgment. All delivery periods and dates are non-binding unless expressly referred to as binding. 2. The delivery period shall commence at the time of dispatch of the acknowledgment of purchase order by Biogelx (or acceptance of the purchase order if no acknowledgment is provided). In any case, the delivery period shall not commence before the Customer has furnished all documents, permits, approvals, consents and releases to be provided by it, before all technical questions have been clarified and before any agreed down payment has been received. Compliance with the delivery period is subject to timely and proper compliance with all other obligations by the Customer. 3. The delivery period shall be deemed satisfied if the products have left the facility or Biogelx has notified its readiness to dispatch. Delivery is subject to timely and proper delivery to Biogelx by its own suppliers; otherwise Biogelx is entitled to terminate the contract. 4. In the event of any delay in delivery, the Customer shall be entitled to terminate the contract after notifying Biogelx of such delay and ten (10) business days in which Biogelx can cure the otherwise late delivery. Subject to the limitations set forth in Section XIII.7 of these Terms and Conditions, Biogelx shall not be liable for any claims for damages of the Customer for late or delayed delivery.

VIII. PRICE AND PAYMENT

1. Unless fixed prices have expressly been agreed or unless otherwise agreed in writing, the Customer shall purchase the products at Biogelx’s list price in effect on date of purchase order acknowledgment (or date of purchase order if no acknowledgment is provided) as reflected on Biogelx’s website www.biogelx.com for deliveries in the United Kingdom. Biogelx has the right to change the list prices of its products from time to time, without notice to the Customer. 2. Unless otherwise agreed in writing, the purchase price shall be paid within thirty (30) days from the date of invoice without any deduction. This also applies to invoices regarding partial deliveries. The date on which Biogelx has received the purchase price and can freely dispose of the same will be deemed the date of payment. In case of delay in payment, the Customer shall pay interest in default in the amount of eight percent (8%) above the applicable base rate of interest. The right to assert further damages remains unaffected. 3. The Customer is only entitled to set off counterclaims if they are final and non-appealable. The Customer shall have no right of retention unless its counterclaim results from the same contractual relationship. 4. Biogelx is entitled to deliver against prepayment. 5. All prices are net prices, that is, excluding statutory value added tax. 6. All consumer, sales or indirect taxes, customs, examination and acceptance fees and all other taxes, fees or charges of any kind whatsoever which are imposed by public authorities or allocated to the business transaction between Biogelx and the Customer shall be paid by the Customer in addition to the prices indicated on the offer or the invoice. Biogelx is not obliged to notify the Customer of potential taxes or fees that may arise.

IX. OFFSET

Biogelx has the right to set off any amounts Biogelx (or its affiliates) may owe to the Customer from time to time against any amounts the Customer may owe to Biogelx (or its affiliates) from time to time under these Terms and Conditions or otherwise.

X. TRANSFER OF RISK

1. The risk shall transfer to the Customer as soon as the products have been delivered in accordance with these Terms and Conditions. This shall also apply in case of partial deliveries or if Biogelx has assumed additional services such as transport costs. Biogelx shall insure the products at the Customer’s request and expense by means of a transport insurance against the risks to be specified by the Customer. 2. If the Customer defaults in accepting delivery of the products or if the Customer otherwise breaches any duty to cooperate, Biogelx shall be entitled to demand compensation for the damages incurred including additional expenses. The risk of accidental loss or of accidental deterioration of quality of the goods shall pass to the Customer at the moment of default of acceptance by the Customer. After a reasonable period of time has expired without acceptance, Biogelx shall be entitled to otherwise dispose of the products and to supply the Customer within a reasonably extended period. 3. Delivered products shall be accepted by the Customer regardless of any claims for defects if the defects are insignificant.

XI. STORAGE, HANDLING, AND USE OF THE PRODUCTS BY CUSTOMER

1. The products of Biogelx are intended to be used for the purposes of laboratory research and may not be used for any other purpose unless otherwise indicated on the product label, in the catalogues of Biogelx or in other documents provided to the Customer. In particular products of Biogelx may not be used for in-vitro-diagnostics, in the areas of food production and pharmaceutical products, in medical devices or in cosmetic products. The Customer is obliged to inform its customers, as applicable, of such limitations. 2. Biogelx does not examine the products for their safety and effectiveness when contained or used in food, pharmaceutical products, medical devices, or cosmetics, or for commercial or other applications, unless otherwise declared in the documents provided by Biogelx. Customer acknowledges that it must, properly test, use and distribute the products purchased from Biogelx and/or any and all materials manufactured by using products purchased from Biogelx. It is the responsibility of the Customer to examine existing risks and dangers and to carry out any further research (if necessary) in order to become aware of the dangers that may arise from the use of products purchased from Biogelx. The Customer shall warn its support staff (such as transport workers) against the risks and dangers that may be related to the storage, use or handling of the products. 3. The products of Biogelx may be governed by the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulations and other regulatory provisions. The Customer is responsible for complying with all regulatory provisions in connection with the storage, handling and use of substances purchased from Biogelx. 4. The Customer shall verify the indications of content made by Biogelx if the products purchased from Biogelx are to be repacked, relabelled or used as starting materials or components for other products. 5. If the Customer resells the products, it shall inform its customers about the duties and warn them against the risks and dangers set forth in Section XI, paragraphs 1-4 of these Terms and Conditions. The Customer shall implement adequate screening and other procedures to ensure that there is no unauthorized sale to or use by its own customers with respect to the products purchased from Biogelx. Supporting documentation requested or required by Biogelx or by applicable laws or regulations, such as end-user declarations or licenses shall be maintained by the Customer and made available to Biogelx upon request. The Customer shall immediately contact Biogelx should it require further information concerning the safe use, storage, handling or transportation of the products.

XII. INFORMATION DUTY

1. The Customer shall immediately inform Biogelx if it becomes aware of any accidents or incidents in connection with the products which result in personal injuries or damages to property; the Customer is obliged to fully cooperate with Biogelx in order to clarify and identify the cause for such accidents or incidents. It shall provide Biogelx with all explanations, reports and tests which have been made or carried out by the Customer or which have been made available to the Customer by third parties. The provision of such information to and the examination of the same by Biogelx do not give rise to liability of Biogelx for such accidents or incidents. 2. If the Customer resells the products, it must ensure that its own customers comply with the information duty set forth in Section XII, paragraph 1 of these Terms and Conditions.

XIII. CLAIMS FOR DEFECT

1. The rights of the Customer with regard to defects shall be subject to the Customer examining the delivered products upon receipt and notifying Biogelx in writing of any defects no later than two (2) weeks after receipt of the products. Hidden defects shall be notified to Biogelx in writing immediately after their discovery. The Customer shall describe the defects in writing. 2. In the event of defects in the products, Biogelx shall be entitled, in its sole discretion, to perform subsequently by remedying the defect or by delivering a defect-free product. The expenses necessary for the subsequent performance shall be borne by Biogelx in as far as these expenses are not increased as a result of the products being taken to a location other than the delivery address. Labour and material costs that the Customer claims in this regard shall be calculated at cost. 3. If Biogelx is not willing or able to perform subsequently, the Customer shall be entitled to terminate the contract. The same shall apply if the subsequent performance fails, if the Customer cannot be reasonably expected to accept it or if it is delayed beyond reasonable deadlines for reasons for which Biogelx can be held responsible. The right of the Customer to terminate the contract shall be excluded if (i) the Customer is unable to return the defective products and this inability is not due to the fact that the return of the products is impossible due to the nature of the product or reasons for which Biogelx is responsible or (ii) the defect only showed during the processing or conversion of the products. 4. In the event of defects in products that Biogelx sources from third-party suppliers and which form an essential part of Biogelx products, the Customer shall only be entitled to demand assignment of the claims that Biogelx is entitled to assert against the third-party supplier. Only in the event of failure of an assigned claim by Biogelx against a third-party supplier shall the Customer be entitled to assert claims for defect against Biogelx.

 

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