PRODUCT TERMS AND CONDITIONS OF SALE

 

  1. Agreement Terms.

1.1                     General Terms.  These Bioproduction Product Terms and Conditions of Sale (“Bioproduction Terms”) apply to our provision, and your use, of Bioproduction Products (defined below), provided by SMSbiotech, Inc.  These Bioproduction Terms are included as Terms to the smsbiotech.com Terms and Conditions of Sale (“Terms and Conditions of Sale”), available at www.smsbiotech.com, and defined therein, and, together with our Documentation (defined below), and any other applicable Supplementary Terms, comprise the agreement (“Agreement”) between you and us for your purchase, and our sale of Bioproduction Products.  In the event of a conflict among the contract documents, the following order will apply as to the conflicting terms: our quotation, the Bioproduction Product Documentation, other Terms, these Bioproduction Supplementary Terms, and then the Terms and Conditions of Sale.  Unless your order is subject to valid , written, executed agreement between you and SMSbiotech, in which case such agreement applies, you agree to accept and be bound by the Bioproduction Terms by ordering Bioproduction Products and on SMSbiotech.com or otherwise via SMSbiotech when you receive ordering or sales documents.  The Agreement is the complete and exclusive contract between you and us with respect to your purchase and our sale of the Bioproduction Products.  We reserve the right to change these Bioproduction Terms at any time, and any changes we make to these Bioproduction Terms will apply to the Agreement between us for any order we receive after the changes are made.

1.2                     Bioproduct Terms – Specific Definitions. For purposes of these production Terms, the following definitions apply. All other capitalized terms have the meanings assigned in the Terms and Conditions of Sale.

“Bioproduction Product(s)” means, generally, individually, and collectively, Consumables.

“Consumable(s)” means consumable Bioproduction Products used in bioproduction processes, including but not limited to: cell culture media; cells; sera; reagents; buffers; process liquids; chemicals; compounds; supplements; single-use, flexible and rigid fluid containment systems for bioprocessing and liquid handling, including system components such as containers, bags, liners, ports, tubing, fittings, manifolds, filters, sensors and end treatments, provided by us to you.

“Custom” means customized or special Bioproduction Products that are manufactured or performed to written instructions, specifications or designs agreed to in writing by you and us.

“Documentation” means labels affixed to Bioproduction Products or packaging; documentation, specifications, limited use label licenses and/or accompanying package inserts shipped with Bioproduction Products; certificates of analysis or conformance made available for applicable Bioproduction Products; and/or documentation, specifications, use guidelines or instructions available in our catalogs, on our website, or that we provide to you for applicable Bioproduction Products.

“Equipment” means durable bioproduction and bioprocess liquid handling instruments and equipment including but not limited to bins, vessels, single-use bioreactors, single-use mixers, single-use fermenters provided by us to you.

“Forward PO” means a binding forward purchase order submitted by you to us in order to obtain continuity of supply for Consumables.

“SKU Number” means our stock-keeping unit, part number, or product identification number assigned to the Bioproduction Product or the raw materials or components associated with the Bioproduction Product in our business systems.

“SOW” means written study or testing protocols and/or statement(s) of work mutually agreed upon between the parties.

“Specifications” means our current, documented specifications or designs for Bioproduction Products in effect at the time of order acceptance and/or Confirmation; or, in the case of Custom Bioproduction Products, or Specified Components, “Specifications” means the mutually agreed upon written specifications or designs for such Custom Bioproduction Products, or Specified Components, or the mutually agreed upon quotation.

 

“Specified Components” means specified raw materials, components, sources, brands or suppliers requested by you to be used in the manufacture or assembly of Custom Bioproduction Products or the performance of Custom Services and includes Consumables and other products and substances manufactured or supplied by third parties, including those products that you purchase through any of our sales channels or affiliates.

 

  1. Price.

2.1            Determining Price. The price as shown in our quotation or SOW to you is subject to adjustment on account of any change to Specifications, quantities, raw materials, cost of production, shipping arrangements, currency exchange or terms or conditions which are not part of our original price quotation.

2.2            Delivery Fees; Freight Policy. You are also responsible for delivery, insurance, and handling charges, if any, and our Bioproduction Product prices do not include such charges unless expressly stated. If we pay such charges, we will add them to your invoice.

 

  1. Cancellation and Changes. Once you have placed your order for Bioproduction Products or Services (Custom or otherwise), you cannot cancel or change it without our written consent.

 

  1. Bioproduction Product Returns.

4.1            Returns. Our Customer Service team must pre-authorize all Bioproduction Product returns. Our Customer Service team will approve return of any Bioproduction Product that is damaged, defective, or non-confirming to the Specifications on receipt, provided you contact our Customer Service team within 5 days after receiving the Bioproduction Product and provided such damage or defect has not been caused by any failure by you or the carrier to handle or store the Bioproduction Product using reasonable care or as otherwise indicated on the label, in Supplementary Terms, Documentation, or contained in any written instruction from us. If you do not contact us within this 5-day period, we will deem the Bioproduction Product accepted, but you will not lose any warranty rights described in Section 5 below. You may be required to provide a sample of any Bioproduction Product that you claim is damaged, defective or non-conforming to the Specifications for us to consider authorizing a Bioproduction Product return.

4.2            Custom Bioproduction Product Returns. You may return a Custom Bioproduction Product only if the Custom Bioproduction Product does not conform to the Specifications as of the date of shipment. In that case, we will, in our sole discretion, either replace the non-conforming Custom Bioproduction Product or provide a credit for the purchase price of the non-conforming Custom Bioproduction Product.

 

  1. Warranty; Restrictions.

5.1            Limited Warranty for Bioproduction Products and Services. Unless a different warranty is included in applicable Supplementary Terms or Documentation, we warrant that each Bioproduction Product will meet its Specifications at the time of shipment and Services will be provided to you in conformance with our quotation or SOW.  The warranty lasts from the date we ship the Bioproduction Product until the earlier of: (a) the expiry or “use by” date; (b) its specified number of uses; or (c) 12 months from the date we ship the Bioproduction Product.

5.2            Exclusions. In addition to our exclusions for Specified Components and third party products described in Section 5.3 below and those listed in the Terms and Conditions of Sale, our warranties for Bioproduction Products do not apply to (a) use of the Bioproduction Products in a manner for which they were not designed; (b) improper storage and/or handling of the Bioproduction Products; (c) use of the Bioproduction Products in combination with equipment and/or software that we did not supply; (d) installation, removal, use, maintenance, storage, and/or handling in an improper, inadequate, or unapproved manner by you or any third party (including the carrier), such as, but not limited to, failure to follow the Documentation, Supplementary Terms, or instructions in Deliverables, operation outside of applicable stated environmental Specifications, use Specifications or other Specifications or otherwise in a manner for which they were not intended or designed, or operation with unapproved software, materials or other products; (e) installation of software or interfacing, or use of the Equipment in combination with software or products we have not approved; (f) use of the Deliverables or any Documentation to support any regulatory approvals; (g) the performance efficacy or compatibility of Specified Components; and (h) the performance of Custom Bioproduction Products, Specified Components or achievement of any results from the Bioproduction Products, Specified Components or the Services within ranges desired by you, (e.g. pH level for media, or achievement of a specified titer), even if those ranges are communicated to us and are described in Specifications, our quotation, or a SOW. WE MAY ALSO VOID YOUR WARRANTY IF YOU SHIP THE BIOPRODUCTION PRODUCT OUTSIDE OF THE COUNTRY WHERE WE DELIVER THE BIOPRODUCTION PRODUCT TO YOU. You must pay for all manufactured lots of Custom Bioproduction Products so long as they comply with the Specifications, even if the Custom Bioproduction Products do not perform to your expectations in your own applications.

5.3            Specified Components and Third-Party Products. We do not support or make any warranties about Specified Components or products manufactured or supplied by third parties that you purchase through any of our sales channels. The provision and use of Specified Components may be governed by a third-party manufacturer’s own contract terms. You must look directly to the relevant third-party manufacturer for product support, warranties, and to make warranty claims concerning Specified Components. We agree, however, to assign to you any warranty rights we may have from the original manufacturer or third-party supplier, concerning the Specified Components to the extent the original manufacturer or third-party supplier allows. Custom Bioproduction Products and/or Custom Services which include Specified Components may be subject to price increases at any time, before or after the issuance of our quotation, due to changes in the Specified Component supplier’s prices. We will not be obligated to provide quantities of Custom Bioproduction Product or deliver Custom Services incorporating Specified Components due to a failure of such Specified Component suppliers. You represent and warrant that the inclusion of the Specified Component in a Custom Bioproduction Product, use with a Bioproduction Product, or use as part of Custom Services, will not infringe any third parties’ rights, and you will indemnify and hold us harmless from any such third party claims.

5.4            Use Restrictions. In the absence of any intended use statement in the Documentation or other Supplementary Terms associated with such Bioproduction Products, which will control, Bioproduction Products are intended for research use or further manufacturing in bioprocessing applications, and not for diagnostic use or any direct consumption by or application to humans or animals. We do not submit Bioproduction Products for regulatory review by any governmental body or other organization, and we do not validate them for clinical or diagnostic use, for safety and effectiveness, or for any other specific use or application. You may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the Bioproduction Products without our prior written consent.

 

  1. Limitation of Liability.

(A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL NOT BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, MULTIPLE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE) THAT YOU MIGHT INCUR UNDER THE AGREEMENT, OR THAT MAY ARISE FROM OR IN CONNECTION WITH OUR BIOPRODUCTION PRODUCTS OR SERVICES, EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. THE SOLE REMEDY FOR BREACH OF WARRANTY IS AS PROVIDED IN SECTION 5 ABOVE.

(B) IN ADDITION, OUR MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY BIOPRODUCTION PRODUCT OR SERVICE IS LIMITED TO THE AMOUNT YOU PAID TO US FOR THE SPECIFIC BIOPRODUCTION PRODUCT PURCHASED OR SERVICE PERFORMED GIVING RISE TO THE LIABILITY.

(C) THE PROVISIONS IN THIS SECTION 6 DO NOT LIMIT OUR LIABILITY THAT CANNOT BE LIMITED BY LAW, INCLUDING BUT NOT LIMITED TO LIABILITY FOR FRAUD, DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE.

  1. No Exclusivity. You acknowledge and agree that SMSbiotech, Inc. is in the business of manufacturing catalog and custom products for the bioproduction, bioprocessing, and biomanufacturing industries. Nothing in the Agreement prohibits us, independently or in collaboration with third parties, from developing items, goods, products, materials, samples, information and/or data similar or identical to the Bioproduction Products, or Custom Bioproduction Products.
  2. Export Restrictions. You acknowledge that each Bioproduction Product, including technical information we supply you, including those contained in Documentation (collectively “Items”), is subject to U.S., EU and local government export controls. The export controls may include, among others, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export to/from other countries. You will, if we request, provide information on the end user and end use of any Item you export or plan to export, as well as written assurance(s) of compliance with EAR in the form we specify either prior to shipment/delivery of Items and/or upon our request.