Terms of Sale
1. General Definitions
1.1. The sale of the products (the “Products”) offered by Integral Molecular, Inc., d.b.a. Cell Surface Bio (CSB), on this website (the “Website”) is under the following terms of sale (the “Terms”). The Terms shall be binding between the customer purchasing the Products (the “Customer”) and CSB, and shall constitute an agreement between the parties (the “Agreement”).
1.2. CSB’s offer to sell the Products is expressly conditioned upon Customer’s acceptance of these Terms. When Customer submits an offer to purchase the Products (the “Order”), Customer is deemed to have accepted these Terms. These Terms override any other terms or condition proffered by Customer unless CSB explicitly agrees to such terms or conditions with a written instrument. CSB’s failure to object to any terms and conditions contained in any purchase order or other document from Customer shall not be construed as CSB’s acceptance of such terms and conditions, or a waiver of these Terms.
2. Ordering Products
2.1. Customer may place an Order with CSB by making payment to CSB for the Product or submitting a purchase order to CSB. After receiving the Order, CSB will send an email acknowledgement to Customer, and if payment is not made together with the purchase order, CSB will send an invoice to Customer. After receiving payment, CSB may accept the Order by shipping the Product to Customer. CSB reserves the right to reject an Order.
2.2. Customer is not required to send a written confirmation of an Order. However, if Customer sends a written confirmation of an Order, it shall be clearly marked “CONFIRMING ORDER. DO NOT DUPLICATE.” Duplicate shipments due to incorrectly marked confirming orders will be subjected to a restocking fee of 20% of the Order, plus shipping, handling and packaging charges.
3. Shipment
3.1. The Products shall be packed for shipment in a commercially reasonable manner and in accordance with any datasheet accompanying the Product. CSB will use commercially reasonable efforts to deliver the Products on the estimated delivery date, but Customer hereby acknowledges that the delivery date is approximate and CSB shall not be liable for any delay in delivery or for failure to give notice of such delay.
3.2. All shipments will be DAP (Delivered at Place), according to INCOTERMS®2020 as issued by the International Chamber of Commerce.
3.3. CSB will select the carrier. The carrier shall not be deemed an agent of CSB and CSB does not assume liability for the shipment.
3.4. Customer shall pay CSB for all transportation, freight, insurance, loading, packaging and handling charges, taxes, duties, fees, storage and any other charges applicable to ship the Products. If applicable, these fees will be pre-calculated and specified on the checkout page of the Website or will be specified in the invoice to Customer.
3.5. Customer is responsible for ensuring the safe and proper means of access to and egress from such place and suitable facilities for the unloading of the Products, including the attendance of Customer’s representatives at such delivery if reasonably required.
3.6. Because the Product is shipped with special shipping conditions, CSB reserves the right to refuse the return of a Product. In the event of any damaged Product or delivery of an incorrect Product, Customer shall notify CSB in writing within seven (7) days of the date of delivery. Failure to notify CSB within seven days of the date of delivery shall relieve CSB from any liability with regard to such damaged or incorrectly delivered Product. If such damage or delivery of incorrect Product results from CSB’s error, CSB shall in its sole option, either refund Customer or credit Customer’s account for the original purchase price of the Product, plus shipping charges.
4. Payment
4.1. Customer shall pay the prices specified in the Order. Customer shall also be responsible for any shipping, handling and delivery charges, any VAT, sales tax, import or customs duties and other amounts payable to governmental authorities in connection with the Order. If Customer is tax exempt, Customer shall provide such documentations to CSB prior to or at the time of the Order.
4.2. Payment terms are net 30 days from the date of invoice, payable in United States dollars. Customer shall be responsible for any banking or wire fees payable by the Customer as a result of the order.
4.3. Pricing errors may occur despite CSB’s efforts. If CSB accepts and processes an Order where the pricing error is obvious and unmistakable and could reasonably have been recognized by customer as a pricing error, CSB may cancel the Order and refund Customer any sums paid.
4.4. Title in the Product shall be retained by CSB until CSB has received payment in full. Until the moment of full payment of all Products delivered, Customer shall not be authorized to give or permit third parties the use of the Products, to rent or pledge, to transfer the title or to alienate or encumber the same in any other way.
5. Intellectual Property
5.1. As between Customer and CSB, all intellectual property rights to the Products are solely and exclusively owned by CSB.
5.2. Pursuant to Customer’s purchase of the Products, subject to the restrictions specified in Section 5.3, CSB hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license to use the Products for Customer’s internal research, development and/or educational purposes, whether Customer is a for-profit or an academic entity.
5.3. Customer shall not use the Products for therapeutic or diagnostic purposes in humans or animals, or use the Products for Commercial Purposes. “Commercial Purposes” means any activity by a party for consideration and may include without limitation: (1) use of the Product or its components in manufacturing; (2) use of the Product or its components to provide a service, information or data to a third party; (3) use of the Product or its components for therapeutic, diagnostic or prophylactic purposes; or (4) resale of the product or its components, whether or not such Product or its components are resold for use in research.
5.4. Customer shall not reverse engineer, disassemble, or otherwise perform any analysis to learn the composition, formula, chemical nature, make-up, components, process or production of the Product or any portion thereof. Customer shall not use the Product for validation, verification or other quality control testing of any product of Customer or third parties.
5.5. No other license or right is granted to Customer except those set forth in this Agreement. If Customer wishes to use the Product for any purposes other than those permitted under this Agreement, Customer must obtain an additional license from CSB.
6. Confidentiality
6.1. “Confidential Information” means any information disclosed by one party to the other party that is labeled or marked as confidential or proprietary, or if disclosed orally, designated as confidential or proprietary at the time of its disclosure.
6.2. Neither party shall disclose or use the other party’s Confidential Information except to perform its obligations under these Terms.
7. Warranties and Liability
7.1. Limited Warranty. CSB warrants that the Product will meet the specifications set forth in the datasheet delivered to the Customer together with the Products (“Product Datasheet”). This warranty shall remain effective from the delivery of the Product to the Product’s expiration or “use by” date or its specified number of uses.
7.2. Disclaimer. EXCEPT OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, CSB MAKES NO REPRESENTATIONS OF ANY KIND AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES RELATING TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION AS TO THE QUALITY, CONDITION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS. Any descriptions of the Products and any samples, online Product descriptions, and published catalogs, or similar material used in connection with the sale of Products are for the sole purpose of identifying the Products and are not to be construed as an express warranty that the Products will conform to such description. Any technical assistance provided by CSB is advisory only.
7.3. Export control and related regulations. Products and information that Customer receives from CSB are subject to United States export control laws and regulations. Customer may not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any such Product or information (including products derived from or based on Products or information received from CSB) to any destination, entity, or person prohibited by United States laws or regulations. Customer represents and warrants that it is not designated on, or associated with any party designated on, any of the United States government restricted parties lists, including without limitation, the United States Commerce Department Bureau of Industry and Security (“BIS”) Denied Persons List; Entity List or Unverified List; the United States Treasury Department Office of Foreign Assets Control (“OFAC”) Specially Designated Nationals and Blocked Persons List; or the United States State Department Directorate of Defense Trade Controls (“DDTC”) Debarred Parties List. Customer shall comply with all applicable United States economic sanctions and export control laws and regulations, including without limitation, the regulations administered by OFAC, the Export Administration Regulations administered by BIS, and the International Traffic in Arms Regulations administered by DDTC. CSB may terminate this Agreement and discontinue any ongoing supply to or business with Customer immediately, without notice and without liability, upon CSB becoming aware that Customer, or any party associated with Customer, is named on any restricted party list.
7.4. Limitation of liability. IN NO EVENT SHALL CSB BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT OR EXEMPLARY DAMAGES OF ANY KIND, OR LOST PROFITS OR REVENUE, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT CSB WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. NOTWITHSTANDING ANY OTHER PROVISIONS OF THESE TERMS AND/OR ANY OTHER AGREEMENT BETWEEN CSB AND CUSTOMER FOR THE PURCHASE OF THE PRODUCTS, CSB’S TOTAL LIABILITY TO CUSTOMER ARISING FROM OR IN RELATION TO THE PRODUCTS, THESE TERMS OR A SEPARATE AGREEMENT BETWEEN THE PARTIES, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY CUSTOMER TO CSB FOR THE APPLICABLE PRODUCTS. IN NO EVENT WILL CSB BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS.
7.5. Indemnification. Customer shall hold harmless, indemnify and defend CSB for any and all damages, liabilities, costs and expenses (including any costs of litigation, including but not limited to, attorneys’ fees and any other costs and expenses), fines, or losses in connection with any threatened or actual claims, actions, demands, investigations, or suits, including, but not limited to, claims or suits by third parties, arising out of any of the following: (a) Customer’s negligent or willful acts, or those of its employees and/or agents, (b) such Products being altered by persons other than CSB (unless expressly authorized in writing by CSB), (c) in the event that Customer modifies, or combines with any non-CSB Products, any of the Products purchased from CSB, and such modification or combination results in the actual or alleged infringement of any intellectual property rights of any third party, (d) from custom Products produced by CSB according to Customer’s specifications, (e) any violations of export control laws by Customer, or (f) Customer’s breach of any provision in these Terms.
8. Termination
8.1. In the event that Customer breaches any of the Terms, CSB may immediately terminate this Agreement and refund any money Customer has paid in advance for Products not shipped to Customer, subject to any deduction or charge to compensate CSB for the reasonable costs incurred prior to the termination. All terms in this Agreement regarding intellectual property, warranty, confidential information, indemnification, liability and limits thereon, and any other provisions that survive by their terms will survive any termination or expiration of this Agreement.
9. Miscellaneous
9.1. Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms of this Agreement shall not be impaired or invalidated, and to the extent permitted by law, shall be restricted in applicability or reformed to the extent required to be enforceable. This provision shall be interpreted and enforced to provide the original written intent of the parties prior to the determination of such invalidity or unenforceability.
9.2. Specific Performance and Liquidated Damages. The parties agree that irreparable damage would occur in the event provisions of Section 5 of this Agreement are not performed in accordance with the terms herein and that the parties shall be entitled to specific performance of the terms hereof or injunctive relief, in addition to any other remedy at law or in equity without the necessity of proving the inadequacy of money damages as a remedy and without bond or other security being required, this being in addition to any other remedy to which they are entitled at law or in equity. The existence of any other remedy contemplated by this Agreement shall not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief. Customer further agrees that if Customer breaches its obligations under Section 5 of this Agreement, in light of the difficulties in estimating the damages for Customer’s breach of Section 5, Customer shall pay to CSB as fixed, agreed and liquidated damages for the breach and not as a penalty $10M per Product for which Customer has breached its obligations under Section 5.
9.3. Assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, representatives, successors and assigns, as the case may be. Customer may not assign its obligations hereunder without the prior written consent of CSB.
9.4. Entire Agreement; Amendment; Waiver
9.4.1. This Agreement constitutes the entire agreement of the parties and supersedes any and all prior or contemporaneous written or oral negotiations, correspondence, understandings and agreements between the parties respecting the subject matter hereof.
9.4.2. This Agreement shall not be amended without the mutual written consent of the parties.
9.4.3. A party’s failure to exercise any rights under this Agreement shall not constitute a waiver of its rights to any damages arising from any breach of this Agreement.
9.5. Governing Law; Jurisdiction; Dispute
9.5.1. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, United States, without consideration to its choice of laws principles. The United Nations Convention for the International Sale of Goods shall not apply to sales made under this Agreement.
9.5.2. The parties agree that the sole and exclusive jurisdiction over and proper venue relating to any controversy or claim arising out of or relating to this Agreement or breach thereof shall be the courts of the Commonwealth of Pennsylvania and/or the Federal District Court for the Eastern District of Pennsylvania.
9.5.3. Any cause of action brought by Customer arising out of or relating to this Agreement must be brought within one (1) year after such cause of action arose, otherwise Customer is deemed to have permanently waived its right to bring such cause of action.
9.6. Notices. All notices given under this Agreement shall be in writing. Notices to CSB shall be delivered to CSB at its address of One uCity Square, 25 N. 38th St., Suite 800, Philadelphia, PA, 19104, United States, with a copy to legal@cellsurfacebio.com. Notices to Customer shall be delivered to the address Customer provides to CSB for shipment of the Products, or an alternative address Customer provides to CSB in writing.
9.7. Force Majeure. CSB shall not be responsible for damages or delays in performance caused by Force Majeure or other events beyond the control of CSB (“Force Majeure”). Force Majeure shall include, without limitation: floods; epidemics; abnormal weather including but not limited to extreme heat; war; riots; strikes, lockouts and other industrial disturbances; unknown site conditions; accidents; sabotage; fire; loss of permits; failure to obtain permits; unavailability of labor, materials or the Products; court orders; acts of God; acts, orders, laws or regulations of the Government of the United States or the several states, or any foreign country, or any governmental agency. Should such acts or events occur, the parties to this Agreement shall mutually agree on the terms and conditions upon which CSB may perform its obligations under this Agreement. Notwithstanding the foregoing, Force Majeure shall not be an excuse for non-payment for Products already delivered by CSB to Customer.