As of January 2020
These terms and conditions are part of all offers and contracts which are signed with “Biofidal (sarl Themis). Divergent agreements or conflicting terms and conditions of the buyer are only valid if they are confirmed by us in writing. This also applies to phone orders or those orders that come about through transmission of samples. A contract subject to these Conditions is concluded by acceptance of an order by Biofidal. An order accorded to Biofidal is either accepted by Biofidal if a) Biofidal executes the order (in this case, a written confirmation by Biofidal is not required) or b) Biofidal accepted the order in writing. Orders may include products and / or services.
2 Contract Award
Orders are considered accepted after written order confirmation or by shipping the samples to Biofidal. Changes in the scope of the contract require written confirmation by us and are only possible as long as the order is not yet in production.
BIOFIDAL shall provide facilities, supplies, and staff necessary to complete the project as provided in the quotation. BIOFIDAL may subcontract any portion of the services to any of its Affiliates hereunder without the prior written consent of CLIENT, provided BIOFIDAL remains liable for the performance of its Affiliate.
Upon completion of the project, all applicable materials in the possession of BIOFIDAL will be discarded after 2 months, unless otherwise agreed upon in writing.
At all times, samples shall remain the property of CLIENT.
3 Transportation and Logistics
Shipments to BIOFIDAL via a Common Carrier
BIOFIDAL will receive shipments from CLIENT per BIOFIDAL’s procedures. BIOFIDAL will not be responsible or accept liability for materials lost, damaged or compromised in transit from CLIENT to BIOFIDAL.
Shipments from BIOFIDAL via a Common Carrier
In the event BIOFIDAL has agreed to ship materials to a CLIENT, BIOFIDAL will package materials using appropriate packaging and in accordance with prevailing regulations. All transportation and associated costs will be at CLIENT’s expense. BIOFIDAL will not be responsible or accept liability for materials lost, damaged, or compromised in transit due to carrier’s negligence from BIOFIDAL to CLIENT.
4 Prices and Payment Conditions
1. Unless the order confirmation does not state otherwise, our prices are “ex works”. All additional costs and expenses (for example, those incurred by the contractor in connection with the contract, especially shipping costs) are borne by the customer. The statutory VAT is not included in our prices; It will be shown separately in the statutory amount on the day of invoicing on the invoice.
2. Invoices are transferred with the goods to the delivery address. CLIENT will be invoiced upon delivery of the results or as otherwise agreed to. Invoices are payable within 30 days’ net, quoting our invoice number in the relevant currency (EUR).
- Any late payment by CLIENT will result in BIOFIDAL being entitled to collect a one percent (1%) monthly interest charge to the amount outstanding (with a minimal fee of EUR 20.00). CLIENT shall also be responsible for reasonable attorneys’ fees and other costs of collection, if any, incurred by BIOFIDAL in attempting to collect any amounts due from CLIENT.
BIOFIDAL reserves the right to require from CLIENT full or partial payment in advance, or other security, that is satisfactory to BIOFIDAL, at any time that BIOFIDAL believes in good faith that CLIENT’s financial condition does not justify the terms of payment specified.
- Prepaid articles (e.g. prepaid barcode labels for Sanger sequencing), will expire 4 years after purchase. Reminders will be adressed to the CLIENT before expiration date to allow use of the prepaid credit.
5 Delivery Terms
Delivery is as soon as possible. A partial delivery is permitted; each partial delivery is considered a separate business. The risk passes over to the customer at the handover to the transport company. We cannot assume any liability for the delivery time of the transport company.
6 Warranty and Liability
1. The use of our products. The use of our products is permitted only in research. The products are not approved for use in diagnostics or as a medicament. Our products are manufactured according to processes, for which we are licensed. The use of our products may touch rights of third parties. The resale of our products shall remain reserved.
2. Warranty. Defects must be notified in written form within 7 days after gaining knowledge of the defect. We reserve the right to rework or replace two times over. The right to complain expires in any case, three months after receipt of the goods. We are not liable for damage caused by improper or inappropriate use of our products. We are not liable for consequential damages, particularly not in an incorrect sequence, or modification of the property of a product, unless there is gross negligence.
3. Design of sequences. Sequences designed by us free of charge are regarded as our intellectual property and may not be used for commercial purposes (e.g. kits). Until publication they must not be disclosed to third parties and must not be ordered from other suppliers.
7 Limitation of Liability
- The contractor is liable only for damages caused by an intentional or grossly negligent breach of duty of its legal representatives or agents. The risk passes over to the customer at the handover to the transport company.
- The customer will ensure that any material to be analyzed is packaged for transportation according to respective regulations. Biofidal reserves the right to refuse any shipments that do not satisfy the requirements.
8 Intellectual Property
Pre-existing Intellectual Property. As used in this quotation, the term “Intellectual Property” refers to proprietary methods, discoveries, inventions, patents, trade secrets, copyrights, trademarks, service marks, trade dress, compositions, products, procedures, know-how, data, reports, programs, processes, protocols, written or electronic writings, illustrations, images, and any other form of proprietary rights. Neither party will, as a result of this quotation, acquire any right, title, or interest in any Intellectual Property that the other party owned or controlled as of the effective date of, or that the other party obtains ownership or control of separate and apart from the performance of, this quotation (each party’s “Pre-existing Intellectual Property”).
New Intellectual Property. CLIENT will own all right, title, and interest in the data and results generated by BIOFIDAL during the course of performance of this quotation, any and all Intellectual Property and other work product, including all improvements to the materials, that BIOFIDAL conceives, invents, reduces to practice, develops or makes, solely or jointly with CLIENT or others, in the course of performance of this quotation or as a result of receipt of CLIENT Confidential Information (collectively, the “New CLIENT Intellectual Property”). BIOFIDAL hereby assigns, and will continue to assign to CLIENT, all of its right, title and interest in any New CLIENT Intellectual Property. BIOFIDAL will use all reasonable effort to promptly disclose to CLIENT in writing all New CLIENT Intellectual Property. BIOFIDAL will execute and will require BIOFIDAL’S personnel involved in the performance of the Services to execute, any documents required to confirm CLIENT ownership of the New CLIENT Intellectual Property, and any documents required to apply for, maintain and enforce any patents or other rights in the New CLIENT Intellectual Property. Upon CLIENT request and at CLIENT’s reasonable expense, and at no cost to BIOFIDAL, BIOFIDAL will assist CLIENT as may be necessary to apply for, maintain and enforce any patents or other rights in the New CLIENT Intellectual Property.
Notwithstanding the foregoing, CLIENT agrees that BIOFIDAL’s core technologies existing prior to the service shall remain the sole property of BIOFIDAL, and that any and all improvements to BIOFIDAL’s core technologies that are not specifically related to CLIENT materials, whether or not conceived within the performance of services in connection with this quotation, shall be the sole property of BIOFIDAL. For the purpose of the present quotation “BIOFIDAL’s core technologies” means all models, programs, methodologies, know-how and general knowledge possessed by BIOFIDAL.
9 Force Majeure
Either party shall be excused from performing its respective obligations under this quotation, any attachments hereto or any other written agreements made pursuant hereto, if such party’s performance is delayed or prevented by any event beyond such party’s reasonable control, including, without limitation, acts of God, fire, explosion, weather, disease, war, insurrection, civil strife, riots, or government action; provided, however, that such performance shall be excused only to the extent of and during such disability. Any time specified for completion of performance falling due during or subsequent to the occurrence of any such event shall be automatically extended for a period of time reasonable under all the circumstances to recover from such disability, as determined in the sole discretion of the disabled party. BIOFIDAL will promptly notify CLIENT if, by reason of any of the events referred to herein, BIOFIDAL is unable to meet any such time for performance specified.
10 Confidentiality and Processing of Customer Data
The buyer agrees that the data contained in the contractual relationship and our services are stored. We are committed to maintain strict silence about orders placed.
11 Applicable Law / Jurisdiction
The appearance of these general terms and conditions, renders earlier general terms and conditions invalid. Through each order, the buyer recognizes all points of these terms and conditions. These as well as the contracts that are closed due to the present terms and conditions are subject to the relevant national legislations in France. For all disputes arising from the contractual relationship the place of jurisdiction is: Lyon, France
Lyon, the 06/01/2020